Slip Op. 10 - 63 UNITED ST ATES COUR T OF INTE RNATIONAL TRADE BEFORE: H ONORABLE NICHOLAS TSOUCALAS , SENIOR JUDGE

_________ _________ _________ _________ x SPARKS BE LTING COM PANY, : Plaintiff , :

v. : Court No. 02-00245 UNITED ST ATES, : Defendant . :

_________ _________ _________ _________ x [Defendan t’s motion for summary judgment is granted; Plaintiff ’s crossmotion is denied]

Dated: Ju ne 1, 201 0

Edmund Ma ciorowski , P.C. (E dmund Mac iorowski) for Plai ntiff. Tony West, Assistant Attorney General; Barbara S. Williams, Attorney- inCharge, Internation al Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Departmen t of Justice (Aimee Lee); Chi S. Choy, Office of Assistant Chief Counsel, International Trade Liti gation, U .S. Customs a nd Border Protecti on, Of Co unsel, fo r Defenda nt.

OPINION

TSOUCALAS , Senior Judge : At issue is the proper classific ation under the Harmonize d Tariff Schedule of the United States (“HTSUS”) for certain merchandi se imported by Plaintiff Sparks Belting Company (“Sparks” ). This action, which has been designate d a test case pursuant to USCIT Rule 84, is before the C ourt on c ross-moti ons for s ummary judgment. For the

reasons set forth below, the Cour t f i n ds that no genuine issues of material fact remain and this dispute ma y be reso lved purs uant to USCIT Rule 56.

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I. Backgroun d The present action involves several entries made between March and September of 2000 through the port o f D etroit, Michigan. The subject imports are described in the commercia l invoice s and other entry documents as “conveyor belts”. See Pl.’s Statement of Material Facts as to Which There is No Genuine Issue to be Tr i e d (“Pl.’s Facts”) ¶ 12; Def.’s Resp. to Pl.’s Stateme n t of Material Facts as to Which There is No Genuin e Issue to be Tried (“Def.’s Resp. to P l.’s Fact s”) ¶ 12. The

mer c h a n d i s e is designed and used in industria l applicati ons for the conveyanc e of food products and othe r goods. See Pl.’ s Facts a t ¶ 25. Upon liquidati on of the entries, the merchandi se was classifie d and assessed with duties by U.S. Customs and Border Protectio n (“Customs ” or the “Governme n t ” ) u nder either Subheadin g 5910.00.1 0, HTSUS, with an 1 assessed duty rate of 5.6% ad valorem, or Subheading 5910.00.90, HTS US, with a duty rate of 3.6% ad valorem. See Entries, Protests. The relevant portions of Headin g 5910 ar e as foll ows:

5910.00 Transmiss ion or conveyor belts or belting, of texti le

material, whether or not impregnat ed, coated, covered or laminated with plastics, or reinforce d with metal or other mat erial: 5910.00.1 0 Of man-ma de fibers 5.6%

* * * 5910.00.9 0 Other 3.6%

Sparks protested Customs’ classific ation of the subject merchandi se, asserting that classific ation was proper under either 5903.10.1 5, HTSUS, or 5903.2 0.15, HTS US, both with duti able rate s of 1.4% ad valorem. See

U n l e s s o t h e r w i s e i n d i c a t e d , a l l s t a t u t o r y c i t a t i o n s , i n c l u d i n g t h o s e 1 t o t h e H T S U S , a r e t o t h e 2 0 0 0 e d i t i o n .

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Protests. After Customs denied Plaintiff ’s protest at the port level, Sparks filed a timely summons with the Court disputing the classific ation of the subject imports. All liquidate d duties, charges and exactions for the subject entries have been paid prior to t h e commencem ent of this action. See Compl . at ¶ 3. During discovery , Defe n dant served interroga tories on Sparks in order to obtain samples of specific measureme nts. See Def.’s Br. at Ex. 2. Spark s submitt ed ten sa mple piec es of the subject merchandise and a proposed stip u l a t i on in early autumn of 2008. With one exception in August of 2009, Plaintiff did not produce any further samples to Defendant . See Def.’s Br. at 2; id. at Ex. 3. The Governmen t proceeded to file a motion to compel more samples. See Pl.’s Mot. to Compel (Doc. 25). The Court denied D e f e ndant’s motion on the basis that the Governmen t had ample time to attain the samples but failed to, given that the case had been ongoing since 2002 and that discovery had conc luded. See Mem. Order Den. Def.’s Mot. to Compel dated Aug. 31, 2009 (Doc. 29). B oth Plaintiff and Defendant concurren tly moved for sum m a r y judgment. As evidentia ry s u p p o r t , the parties have submitted numerous

2 documents including the briefs for su m m a r y judgment and responsiv e documen t s t h ereto. See Pl.’s Mot. for Summ. J. (“Pl.’s Br.”); Def.’s Resp. to Pl.’s Mot. for Summ. J. (“Def.’s Resp.”); Pl.’s Reply to Def.’s Resp. to Pl.’s Mot . for Sum m. J. (“Pl.’s Reply”); Def.’s Mot. for Summ. J. (“Def.’s Br.”); and Pl.’s Resp. t o Def.’s Mot. for Summ. J. (“Pl.’s Resp.”); Def.’s Reply to Pl.’s Resp. to Def.’s Mot. for Summ. J. (“Def.’s Reply”). Sparks, who had originall y named twenty-fo ur entries containin g

Plaintif f also fi led a mot ion for l eave in o rder to f ile a 2 motion fo r oral ar gument ou t of time on May 7 , 2010 (D oc. 48), which was denie d on May 13, 2010 (Doc 52) .

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eighteen products, abandoned its claims concernin g all but seven entries containin g eight different products. See Summons; De f . ’ s S t atement of 3 Material Facts as to Which There is No Genuine Issue to be Tried (“Def.’s Facts”) ¶¶ 1-2 ; Pl.’s Resp. to Def.’s Statement of Material Facts as to Whi c h T h e r e i s No Genuine Issue to be Tried (“Pl.’s Resp. to Def.’s Facts”) ¶ 1; Pl.’s Br. at 2, n.2. According ly, this Court dismisses the claims ab andoned b y Sparks. 4 On March 31, 2010, Defendant moved to strike portions of the affidavit of Ivo Spaargare n, attached as an exhibit to Plaintiff ’s brief. See Def . ’ s M ot. to Strike (Doc. 41). This Court granted Defendant ’s motion, ruling that p a r ts of Spaargare n’s affidavit lacked a basis of personal knowledge in contraven tion of USCIT Rule 56(e). See Mem. Order Granting Def.’s Mo t. to Str ike, date d Apr. 20 , 2010 (D oc. 47). II. Cont entions o f the Par ties Sparks contends that its summary judgment motion should be granted because Customs improperly classified t he subjec t imports under Heading 5910, HTSUS, despite Chapter Note 6 which excl u d e s “[t]ransm ission or

T h e r e m a i n i n g m e r c h a n d i s e a t i s s u e b e f o r e t h e C o u r t i n c l u d e s : B F B P 3 1 1 1 A / S [ E n t r y 0 0 5 6 4 8 8

- 8 ] ; 2 M 8 1 0 / 0 G a n d 2 M 8 2 0 / 0 S G 3 [ E n t r y 0 0 5 4 5 8 9

- 2 ] ; E M 8 / 2 0 + 0 4 P U T r a n s A S [ E n t r y 0 0 1 8 9 6 4

- 5 ] ; E M 6 / 1 + 1 P V C A G R E E N [ E n t r y 0 0 1 8 9 0 9

- 0 ] ; M F B P 1 1 1 A / S [ E n t r y 0 0 5 6 3 5 2

- 6 ] ; M F G P 2 7 0 [ E n t r y 0 0 5 5 0 3 8

- 2 ] ; T y p e 2 E 7

- 0 N W h i t e [ E n t r y 0 0 5 5 7 4 1

- 1 ] . S e e P l . ’ s R e s p . t o D e f . ’ s F a c t s a t ¶ ¶ 1

- 2 .

T h e d i s m i s s e d c l a i m s i n c l u d e : S p a r k s P a r t 0 2

- 8 0 0 , W F N S F 2 4 P a r a s k i n 4 N 5 5 0 B E E G B l u e [ S e e P l . ’ s R e s p . t o D e f . ’ s F a c t s ¶ 6 ] ; S p a r k s P a r t 0 3

- 1 1 1 , M F W U 1 1 0 A / S [ S e e P l . ’ s R e s p . t o D e f . ’ s F a c t s ¶ 7 ] ; S p a r k s P a r t 0 3

- 1 3 4 , U l t r a K o o l I I [ S e e P l . ’ s R e s p . t o D e f . ’ s F a c t s ¶ 8 ] ; S p a r k s P a r t 0 3

- 1 3 5 , U l t r a K o o l I I L i g h t [ S e e P l . ’ s R e s p . t o D e f . ’ s F a c t s ¶ 9 ] ; S p a r k s P a r t 0 3

- 1 5 0 , M F G U 2 1 0 [ S e e P l . ’ s R e s p . t o D e f . ’ s F a c t s ¶ 1 0 ] ; S p a r k s P a r t 0 3

- 3 2 6 , M F A U 2 0 0 A / S , 1 2 / 2 0 0 + 0 0 P U B l a c k A S [ S e e P l . ’ s R e s p . t o D e f . ’ s F a c t s ¶ 1 2 ] ; S p a r k s P a r t 0 3

- 3 3 2 , M F L B P 2 1 0 , U N 1 0 0 P / M [ S e e P l . ’ s R e s p . t o D e f . ’ s F a c t s ¶ 1 3 ] ; S p a r k s P a r t 0 2

- 8 0 2 , S i l o n 4 0 H C , W F N S F 1 5 , 1 2 / 2 0 0 + 0 0 P U B l a c k A S , P a r a s k i n N 5 0 0 B E E G [ S e e P l . ’ s R e s p . t o D e f . ’ s F a c t s ¶ 1 7 ] ; S p a r k s P a r t 0 3

- 1 6 2 , M F B U 3 0 0 , 3 L R A R X [ S e e P l . ’ s R e s p . t o D e f . ’ s F a c t s ¶ 1 7 ] ; S p a r k s P a r t 0 3

- 1 7 5 , U l t r a K o o l I I T a n , 2 M 8 3 / 0 0 U T a n [ S e e P l . ’ s R e s p . t o D e f . ’ s F a c t s ¶ 1 7 ] ; S p a r k s P a r t 0 3

- 2 4 2 , M F W P 2 2 0 , 2 M 8 5 / 0 0 2 T [ S e e P l . ’ s R e s p . t o D e f . ’ s F a c t s 2 7 ] ; a n d S p a r k s P a r t 0 3

- 3 7 7 , M F G P 2 3 0 [ S e e P l . ’ s R e p l y a t 2 , n . 1 ] .

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conveyor belting, of textile material, of a thickness of less than 3 mm” from that heading. Sparks alleges that the subject articles are properly classifie d under HTSUS subheadin gs 5903.10.1 5 or 5903.20.1 5, depe nding

on whether they are coated with polyvinyl chloride or polyureth ane, respectiv ely. The Governmen t asserts that summary judgment is appropria te in its favor for several reasons. Regarding the products not represented by a sample, Defenda n t p osits that Sparks failed to establish elements essential to its case and upon which it bears the burden o f p r o o f. Further, according to Defendant , the subject imports cannot be classifie d under Sparks’ claimed classific ation provision s because those subheadin gs

c ontemplat e the products being a fabric in accordanc e with Note 9 t o Section XI of the HTSUS, which the subject merchandi se are not. Finally, with regard to Entry 0054859-2 , Defendant submits that the Court lacks jurisdict ion because Sparks’s protest of that e n t r y has already been granted. III. Summary J udgment a nd Standa rd of Rev iew Summary judgment is appropria te when there is no genuine i s s u e as to any material fact and t hat the moving party is entitled to judgment

as a matter of law. USCIT R. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct . 2 5 4 8, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 , 91 L.Ed .2d 202 ( 1986). A t the summary judgment stage, the question to be answered is “whether there is the need for a t r i al- whether, in other words, there are any genuine factual issues that properly can be resolved only by a f i n d e r o f fact because they may reasonabl y be r e s o l ved in favor of either party.” Processed Plastic Co. v. United States, 29 CIT 1129, 1132, 395 F.Supp.2d

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1296, 1299 (2005) (internal citation omitted). The purpose of summary judgmen t i s to avoid a clearly unnecessa ry trial. See Seal-Flex , Inc.

v. Athletic Track and Court Constr., 98 F.3d 1318, 1321 (Fed. Cir. 1996) (citing M atsushita Electric Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986 )). The fact that both parties have moved for summary judgment “does not mean that the court must grant judgment as a matte r of law for one s ide

or the other; summary judgment in favor of either party is not proper if disputes remain as to material facts.” Mingus Construct ors , I n c . v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987) (internal citation omitted). In classific ation cases, summary judgment is appropria te when “there is no genui ne disput e as to . . . what the merchandis e is.” E ro Indus., Inc. v. U n i t ed States, 24 CIT 1175, 1179, 118 F.Supp.2d . 1356, 135 9 ( 2 0 0 0 ) . In other words, if no dispute over a material fact would impact the outcome of the suit and the a c t i o n f o c u ses solely on the proper classific ation of the merchand i s e , a court may grant summary judgment. See Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1365 (Fed. Cir . 1998). Ultimatel y, it is the Court’s duty to d e t ermine the correct classific ation. See Jarvis Clark Co. v. United States, 733 F.2d 873, 876 (Fed. Cir . 1 9 8 4). Classific ation cases are reviewed de novo by this Cou r t , pursuant to 28 U.S.C. § 2640(a). See Cargill, Inc. v. United States, 28 CIT 401, 408, 318 F.Supp.2d 1279, 1287 (2004). The Court must determine whe t h e r “the governmen t’s classific ation is correct, both independe ntly and in compariso n with t h e i mporter’s alternati ve.” Sumitomo Corp. of America v. United States, 18 CIT 501, 505, 855 F.Supp. 1283, 128 7 (1994). In order to establish the proper classific ation of i mported

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merchandi se, the Court applies a two-step analysis whereby it “(1) ascertain [s] t h e proper meaning of the specific terms in the tariff provision ; and [th en] (2) determin[es ] whether the merchandise at issue

comes within the descripti on of such terms as [] prop e r l y construed .” Global Sourcing Group v. United State s , 3 3 CIT __, __, 611 F.Supp.2d 1367, 1371 (2009) (citing Pillowtex Corp. v. United States, 171 F.3d 1370, 1373 (Fed. Cir. 1999)). The fi r s t s t e p of the analysis is a question of law and the second is a question of fact. See Pillowtex , 171 F.3d at 1 373. The General Rules of Interpret ation (“GRIs”) direct classific ation

o f m e r chandise under the HTSUS. See Boen Hardwood Flooring, Inc. v. United States, 357 F.3d 1262, 1264 (F e d . C ir. 2004). The GRIs are applied in numerical order; once a particula r rule provides proper cla s s i f i cation, a court may not consider any subsequen t GRI. See Mita Copystar Am. v. Uni ted State s, 160 F. 3d 710, 7 12 (Fed. Cir. 1998). The first GRI holds that “classifi cation shall be determine d according to the terms of the headings and any relativ e section or chapter notes.” GRI 1; see also Orlando Food Co r p . v. United States, 140 F.3d 1437, 1440 (Fed. Cir. 1998). Section and Chapter Notes are “not optional interpret ive rules, but are statutory law, codified at 19 U.S.C. § 1202.” Michael Simon Design, I n c . v. United States, 30 CIT 1160, 1164, 452 F.Sup p .2d 1316, 1321 (2006) (internal quotation omitted). The Explanato ry Notes (“ENs”), which accompany each c h a p t e r of the HTSUS, provide persuasiv e assistanc e to the court, though they do not constitut e legally binding authority . See L o n z a, Inc. v. United States, 46 F.3d 1098, 110 9 (Fed. C ir. 1995) . IV. DISCUSSIO N

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A. Jurisdict ion over Entry 005 4859-2 Prior to addressin g the propriety of Customs’ classific ation, the Court must dispense w i t h a j urisdicti onal issue. Upon liquidati on, Customs classifie d E n t r y 0054859-2 under 5910.00.1 0, HTSUS, with an assigned duty of 5.6% ad valorem. See Def.’s Resp. at 7. Sparks protested that rat e of liqu idation and claimed that the goods sho uld be reliquida ted under Subheadin g 5903.10.1 5, HTSUS, dutiable at 1.4% ad valore m . S ee Pl.’s Br. at 20; Protest No. 3801-01-1 00321. Customs denied Sparks’s protest on February 7, 2002. See Summons. However, less than three months later, Customs reliquida ted Protest No. 3801-01-1 00321 at the rate sought by Sparks in its prot est and P laintiff received duty refund checks for all articles under this protest, including Entry 0 0 5 4 859-2. See Pl.’s Reply at 3; Pl.’s Br. at Ex. 14. According ly, Defendant asserts, since Sp arks rece ived the relief it sought, there is

no case or controver sy with regard to these products and the Court lacks jurisdict ion with respect to Entry 0054859-2 . See Def.’s Res p . at 7. The Court agrees. A condition precedent to the Court’s power to adjudicat e the appeal of a deni ed entry is that a n importe r first file a protest with Custom s by ninety days after notice of liquidati on. See 28 U.S.C. § 1581(a); 19 § U . S . C . 1514. Such protest must be denied by Customs, in whole or in part, for the Court to hear the civil action. See § 1581(a). Similarly , an entry that has been reliquida ted must also be protested and denied by Customs for the Court to have jurisdict ion. “[W]hen Customs changes its decision ‘to conform to a decision sought by a protest, that protest has been comp letely gr anted.’” Novell, Inc. v. United States, 21 CIT 1141, 1142, 985 F.Supp. 121, 12 3 ( 1 997) (quoting Transfloc k, Inc. v. United

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States, 1 5 CIT 248 , 249, 76 5 F.Supp. 750, 751 (1991)). This is b ecause “reliqu i dation vacates and is substitut ed for the collector ’s original liquidati on. The reli q u i d a tion, not the original liquidati on, is the final decision of t he collec tor as to the rate and amou nt of duty to be paid by the importer, and the time to protest begins to run from the date of the latest liquidati on.” Mi t s u b i s hi Electroni cs America, Inc. v. United States, 18 CIT 929, 931, 865 F.Supp. 877, 879 (1 9 9 4 ) (internal citation omitted). A reliq uidation becomes final if the importer fails to file a protest with Customs within ninety days. See §§ 1514(a), (c). Thus, protest of a reliquida tion with Customs is a prerequis ite to seeking j udicial r eview. S ee Transf lock, 15 CIT at 24 9. Sparks asserts that the products at issue remain relevant since the action before t h e C o urt has been designate d a test case, involving the

same fact or questions of law for six p e n d ing cases, some of which include the same products imported under the pertine n t e ntry at issue here, Entry 0054859-2 . See Pl.’s Rep l y a t 3-4. Plaintiff further contend s t h a t the issues in this case are all the more salient consideri ng that other ports continue to enter these same products at the current high rate of duty, resulting further litigatio n. See Pl.’s Reply

a t 4. However, it is a well-esta blished principle that the outcome of

a classific ation case is not considere d res judicata for merchandi se that

are not stemming from the actual transacti ons at issue before the court. See United States v. Stone & Downer Co., 274 U.S. 225, 235-237, 47 S.Ct. 616, 71 L.Ed. 101 3 (1927). The typ ical res judicata rules do not apply in protest cases and collatera l estoppel doesn’t prevent an importer from successiv e litigation over the class ification of merch andise, even when subsequen t importati ons involve the same issues of fact and the same questions of law. See, DaimlerCh rysler Corp. v. United States, 442 F.3d

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1313, 1321 (Fed. Cir. 2006). The Court has no power to entertain issues that are not in controver sy under the instant case. Sparks will be able to fully address the products therein and related Customs decisions in other ports when they are ripe for adjudicat ion. According ly, Entry 0054859-2 must be dismissed from the case at bar. The remainder of this dispute falls within the Court’s jurisdict ion under 28 U.S.C. § 1581(a). B. Motion fo r Summary Judgment On a motion for summary judgment, t h e movant has the burden of coming forth with evidence to support the factual allegatio ns of its claims. See Rockwell Automatio n Inc. v. United States, 31 CIT 692, 696 ( 2 007) (citing Celotex, 477 U.S. at 323 (“[A] party seeking summ a r y judgment always bears the initial respo n s i b ility of informing the district court of the basis for its motion , a n d identifyi ng those portions of the pleadings, depositions , answers to interrogatories, and admission s on file, together with the affidavit s, if any, which it believes demonstra te the absence of a genuine issue of material fact.”)). Summary judgment must be entered against a pa r t y who fails to make a showing sufficien t to establish the existence of an essential element to its case. See Celotex, 477 U.S. at 323. Consequen tly, Sparks bears the burden of offering evidence to support its claims that the correct classific ation of the subject merchandi se is under HTSUS subheadin gs 5903.10.1 5 or 5903 .20.15 an d not 591 0.00.90 or 5910.00.1 0. In order to determine whether Sparks has met its burden, the Court must ascertain the proper me aning of headings 5910 and 5903, and their relevant section or chapter n otes unde r the GRI s. To begin, Heading 5910 applies to “[t]ransm ission or conveyor belts

o r b elting, of textile material, whether or not impregnat ed, coat e d ,

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covered or laminated with plastics, or r e i n f orced with metal or other material” . Chapter Note 6 to H eading 5910 provides that it does not apply to “[t]ransm ission or conveyor belting, of textile material, of a thickness of less than 3mm. ” To that end, the Court must prelimin arily dete r m i n e w h ether the imports are more or less than 3mm thick: if the

m erchandis e at issue is more than 3mm thick, it remains classifi e d i n Heading 5910, but if it is less than 3mm thic k, the be lting is excluded from this heading. Next, Heading 5903 encompass es “[t] e x t ile fabrics impregnat ed, coated, covered or laminated with plastics, othe r than th ose of he ading 5902.” For the subject merchandi se to be classifie d under this heading, two notes to Chapter 59 must be considere d. The f i r s t n o t e defines textile f abric: “[ e]xcept w here the context otherwise requires, for the pur p o s e s of this chapter the expressio n “textile fabrics” applies only to the woven fabrics of chapters 50 to 55 and headings 5803 and 5806, the braids and ornamenta l trimmings in the p i e c e of heading 5808 and the knitted or crocheted fabrics of h e a d ing 6002.” Note 1 to Chapter 59 (emphasis in original) . Th u s , t o be classifie d in Heading 5903, the subject i mports mu st consis t of one of these textile f abrics. The s econd note pertinent to Heading 5903 is Chapter Note 2(a). Note 2(a) (1) provi des that Heading 5903 does not apply to “[f]ab rics in which the impregnat ion, coating or covering cannot be seen with the naked eye,” with no account being taken of any color ch anges. Thus, if the merchandi se a t i s s ue is comprised of a textile fabric that has been impregnat ed , c o ated, covered or laminated with a plastic material that cannot be seen with the naked eye, it is excluded from the parameter s of Heading 5903. Note 2(a)(2) states that Heading 5903 does not apply to “[p]roduc ts which cannot, w ithout fracturing, be bent manually around a

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cylinder of a diameter of 7 mm, at a temperatu re between 15°C and 30°C.” According ly, if th e subject merchandi se cannot be bent manually without fracturin g, it is precluded from classific ation in Heading 5903. Lastly, Note 2(a) (3) condi tions tha t Heading 5903 excludes “[p]roducts in which the textile fabric is either completel y embedded in plastics or entirely coated or covered on both sid e s w i th such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change in color.” Thus, if the products at issue

are completel y embedded or entirely coated or covered on both sides with plastic that can be seen with the naked eye, it is ruled out from classific ation und er Headin g 5903. Now that the language of the tariff provision s has been ascertain ed, t h e C o u rt turns to the facts of the case at bar in order to determine whether the subject merchandi se f its within the parameter s of the relevant subheadin gs. In determini ng this question of fact, the Court also proceeds in ascertain ing whether Plaintiff h a s c arried its burden of establ ishing th e element s of its case and prevail o n its mot ion. 1. Entries W ithout Re presentat ive Sampl es The Governmen t advances that the headings and applicabl e chapter notes at issue require specific informati on that can only be ascertain ed by examining a physical sample. See Def.’s Br. at 7. Since o nly three of the imports at issue were represent ed by a sample, and the absence of any necessary informati on to determine the classific ation of each product is tantamoun t to a failure of proof by Plaintiff , De f e n d ant concludes that Sparks has failed to prove its case as a matter of law regarding the three remai n i n g sample-le ss products, BF BP 111 A/S (Entry 0056488-8 ), EM 6/1+1 PVC AGREEN (Entry 0018909-0), and MF BP 111 A/S (Entry 05 6352-

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6). In resp o n se, Sparks posits that samples themselve s are not a

r equired element of proof for classifyi ng an article. To support t h i s propositi on, Plaintiff relies on two Customs Court cases, W.T. Grant Co.

v. United States (“Grant”) , 74 Cust.Ct. 3, 11, C.D. 4579 (1975), and L.B. Watson Co . , A /C Murphy Reir, Inc. v. United States (“Watson” ), 79 C u st.Ct. 85, 87, C.D. 4717 (1977), both holding that any deficie n c y caused by a lack of samples had been overcome by a reliable and complete record, thereby allowing the Court to determine the proper classific ation of the merchandi se. See Grant, 74 Cust.Ct. at 9; Watson, 79 Cust.Ct. at 90. It is accurate to state that samples of the merchandi se as imported would have conc l u s i vely determine d classific ation due to the nature of the tariff provision s advanced here by Sparks. However, it is also true that the unavailab ility of physical samples is not a bar to r e covery. These two seemingly incompati ble stat e m e n t s can be reconcile d. The Watson Court elucid ates: alt hough “it is not necessary for plaintiff to offer a sample of the imp o r t e d merchandi se, it must, however, present adequate evidence t o establi sh the nature and essential character istics of the importati on.” Watson, 79 Cust.Ct. at 87. Thus, the crux of the issue is whether Plaintiff ’s evidence as a whole succeeds in establish ing the essential character istics required by the relevant tariff provision s. Sparks claims that, even without samples, it h as “provided d efinitive evidence regarding the physical character istics of t h e articles. ” P l . ’ s R e s p. at 2. To that end, Plaintiff submitted to the Court documenta ry exhibits including technical data sheets and sworn

### Court No. 02-00245 Page 14

affidavit s , which it contends “present incontrov ertible ev i d e n ce 5 establi s hing that the physical character istics of the subject articles

are represent ative of the condition of these articles, as imported. ” Id. Both the affidavit s of Grasmeyer and Spaargare n address the sampl e-less products, and include informati on on thei r manufactu re, thickness , and amount of plastic by weight. This informati on is cross-ref erenced by the technical data sheets of both Sparks and the manufactu rer of the product. However, the re l e v a n t tariff provision s and chapter notes in this case requ ire very specific information that goes beyond ba sic data that can typic ally be f ound in technical datasheet s, books and recor ds. The supportin g documenta tion contains manufactu ring data w h i ch, in many instances , establish es only s o m e of the general character istics of the products, but not the very specific physical propertie s of the imports

nec e ssary here. Furthermo re, neither affidavit satisfies the criteria required by the ch apter notes. Spaargare n attempts to testif y on thes e character istics, h owever th e Court has previously ruled that Spaa rgaren may not testify based on his pers o n a l knowledge and can only testify based on books and records. See Mem. Order dated Apr. 20, 2010 (Doc 47). Grasmeyer does not testify at all to the physical test requireme nts. The result is that both Spaargare n and Grasmeyer ’s test imony fails to establish the essential character istics required for classific ation. Thus, although Sparks presented some data concernin g the products during discovery , such in formation is incomplete and falls short in satisfying

The affi davits th at Plaint iff submi tted are from John 5 Grasmeyer , Vice Pr esident o f Operati ons at Sp arks (“Gr asmeyer A ff.”); Ivo Spaar garen, re sponsible for manu facturing within t he Manage ment Team of m anufactur er Ammera al Beltec h Holding , B.V. (“ Spaargare n Aff.”); a nd Peter de Vries, Inside S ales Repr esentativ e of manufactu rer Derco , B.V. (“ De Vries Aff.”). See Pl.’s Br. and accompany ing docum ents.

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the visibilit y a n d physical test requireme nts necessary for classific ation her e. Consequen tly, the Court finds t h at Plaintiff has submitted sufficien t proof w ith respect to the issue of some, but not a ll, of th e products at issue. Where samples have been provided, Sparks has met its burden; for those products not represent ed by a sample, Plaintiff is unable to provide adequate evidence establish ing the essential character istics o f each product in order to allow for an accurate classific ation. In particula r, the evidence presented by Plaintiff fails to establish with certainty the essential character i stics, nature, and identity of the merchand i s e without samples: BF BP 111 A/S (Entry 0 056488-8) ; EM 6/1+1 PVC AGREEN (Entry 0018909-0 ); and MF BP 11 1 A / S (Entry 0056352-6 ). Without such informati on, the Court cannot determine

acc u r a t e classific ation of these products. The Governmen t is entitled to summar y judgmen t as a matter of law concerning thes e entries because Plaintiff has failed to establish the existence of elements essential to its case, and on which it bears the burden of proof at trial. There exists “‘no genuine issue a s t o any material fact,’ since a complete failure of proof concernin g an essential element of the nonmoving party’s

case necessari ly renders all other facts immateria l.” Celotex, 477 U.S. 317 at 32 2-23 (cit ing Ander son, 477 U.S. at 2 50). 2. Classific ation for Products with Sam ples Prov ided Samples e xist for three of the remaining products at issue: MF GP 270 (Entr y 0055038 -2); Typ e 2E7-0N White (Entry 0055741-1); and EM 8/2 0+04 PU Trans AS (Entry 00 18964-5). The par ties are in agreem ent as to the nature of these three products b u t d i s agree as to the meaning and scope of the tariff provisio ns at iss ue. The sole issu e is a matter of

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properly interp r e t i n g the classific ation term at issue to determine whether the scope of that term i s b r o a d enough to encompass the items with particula r character istics. According ly, this matter is rip e f o r summary j udgment o f these t hree prod ucts. The Court begins its analysis with the competing tariff headings. D e t e rmining the most appropria te classific ation for the merchandi se involves a “close textual analysis for the language of the headings and the accom panying e xplanator y notes.” Conair Corp. v. United States, 29 CIT 888, 891- 8 9 2 ( 2 005) (internal citation omitted). In determini ng which heading is more specific, and hence more a p p ropriate for classific ation, a court should compare only the language of the headings and not t he langua ge of the subheadi ngs. See GRI 1, 3 . MF GP 270 and Type 2E7-0N W hite Chapter Note 6 permits classific ation under Headi n g 5910 for products that are 3mm thick or more. Both MF GP 270 and T y p e 2E7-0N White are less than 3mm thick. See Def.’s Facts ¶ 15(a), ¶ 16(a); Pl.’s Resp. to Def.’s Facts ¶ 15, ¶ 16. Although th e p a r t ies differ on the exact mea surements of thick ness, thi s is not a material fact since both parties concur that the products are within the parameter s o f t h e relevant chapter note. Thus, these products are exclud e d from classific ation und er Headin g 5910. Turn i n g to Heading 5903, Chapter Note 1 provides that the subject merchandi se must be a “textile fabric.” The products at issue are woven fabrics. See Def.’s Facts at ¶ 15(b), ¶ 16(b); Pl.’ s Resp. to Def.’s Facts at ¶ 15, 16. Si n c e w o ven fabrics are a textile fabric, these products fulfill the requ i r ements of Chapter Note 1(a), and the evaluatio n of Head ing 5903 can proce ed.

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Chapter Note 2(a)(1) and (3) require the merchandi se to be comprised

o f a textile fabric that has been impregnat ed, coated, covered o r laminated with a plastic material able to be seen with the naked eye but not completel y embedded, coated, or covered on both sides with plastics. Type 2E7-0N White meets the terms of this requireme nt. See De Vries Aff. ¶ 4-5; Def.’s Facts ¶ 16. For M F G P 270, Sparks’s evidence does not speak to the issu e o f whether the requireme nts of Chapter Note 2(a)(1) and (3) have been met and thus the Co u r t r elies on Defendant ’s lab analysis to conclu de that t he coating is visible to the naked eye. See Declarati on of Deborah Walsh, Customs National Import Specialis t, Def.’s Br. at Ex . 8 (“Wal sh Decl.” ) ¶ 11. Chapter Note 2(a)(2) condit ions that the subject merchandi se must be able to be bend manually witho ut fractu ring arou nd a cyli nder with a dia m e t e r o f 7 mm, at a temperatu re between 15°C and 30°C. Again, Type 2E7-0N White clearly meets this requireme nt. See Walsh Decl. ¶ 11; De Vries Aff. ¶ 6. With respect to MF GP 270, however, Plaintiff ’s evidence fails to establish the relevant character istics and the Court again uses Defendant ’s lab report to d e t e r m ine that the product is able to bend manually around a 7 mm cyli nder. Th us, MF GP 270 complies with Chapter Note 2(a)(2) and can be classifie d under Heading 5903. According ly, both Type 2E7 0N White and MF GP 270 are classifia ble under Heading 5903. Having determine d that Heading 5903 controls the analysis, the Court may now look to the subheadin gs to f i n d the correct classific ation for the merchandi se. See GRI 6; Orlando Food, 140 F.3d at 1440 . Sparks advances S u b h e ading 5903.10.1 5, whereas the Governmen t asserts that 5903.10.2 0 is more appropria te. The pertinent provision s of Heading 5903 are as fo llows:

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5903 Textile fabrics impregnat ed, coated, covered or

laminated with plastics, other than those of heading 5902: 5903.10 With poly vinyl chl oride:

* * * 5903.10.1 5 Of man-ma de fibers : Fabrics specifie d in note 9 to secti on XI: Ov er 60 percent b y weight of plasti cs 1.4%

* * * 5903.10.2 0 Of man-ma de fibers : Other: Over 70 percent b y weight of rubber or plastics 1.7%

The merchandi se is m a d e with polyvinyl chloride (see Def.’s Facts ¶ 15(d), 16(d); Pl.’s Facts ¶ 56) and so the critical issue is whether the products qualify as “fabrics specified in note 9 to sect i o n X I,” which provides that: [t]he woven fabric s o f chapters 50 to 55 include fabrics consistin g of layers of parallel textile yarns superimpo sed on each other at acute or right angles. These layers are bonded at the intersect ions of the yarns by an adhesive or by thermal bonding. Section XI, Note 9, HTSUS. Sparks contends that the subject merchandi se are Note 9 fabrics ; the Gov ernment m aintains that they are not. Plaintiff interpret s the language of Note 9 expansive ly to include both the fabrics specified in the note as well a s the regular “woven fabrics o f Chapter s 50 to 5 5," which is defin ed in the ENs as: products obtained by interlaci ng textile yarns (whether of the kinds classifie d in Chapters 50 to 55 or those regarded as twine, cordage, etc., of heading 56.07), rovings, monofilam ent or strip and the like of Chapt e r 5 4, loop wale-yarn , narrow ribbons, braids or narrow fabrics (consisti ng of warp without weft assembled by means of an adhesive, etc.), on warp and weft loom s. Harmonize d Commodity Descripti on and Coding System Explanato ry Notes, World Customs Organizat ion, Vol. 2, Section XI, I(C). Sparks claims that

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any other reading o f t h e t e r m “woven” in Note 9 would negate its plain meaning, and a c c o rdingly, Plaintiff asserts that Note 9 fabrics can be joined to gether by mechanic al bondin g or by t raditiona l interla cing. On the contrary, Defendant argues, a Note 9 fabric cannot be a woven fabric because by defi n i t i on it does not have an interlace d fiber construct ion. The Governmen t urges the Court c o n s i d er the EN in its entirety, since it also provides t hat “[t]he essential character istics of [a Note 9 fabric] is that the yarns are not interlace d a s in conventio nal woven fabrics, but are bo nded at t he inters ections with an adhesive or by thermal b o n ding.” Id. According to Defendant , it is plain that Note 9 fabrics are specializ ed and do not include tradition al

woven fabrics that weave over and under eac h o t h e r . See Def.’s Br. at 15. The Court finds that Plaintiff ’s interpret ation of Note 9 conflicts with the true meaning of the tariff provision . It is a “general rule of statutory construct ion that where Congress has clearly stated its intent in the language of a statute, a court should not inquire further into the meaning o f the sta tute.” P illotex, 171 F.3d at 1373. Section XI, Note 9 itself explicitl y defines what a Note 9 fa b r i c construct ion is: a specific construct ion bonded with an adhesive or by thermal bonding, not

a tradition al weave. If Note 9 fabrics were read in the way that Sparks submits, there would be no need to distingui sh Note 9 f a b r ics from regular woven fabrics. The f act that Congress included this provision indicates that it intended to deline ate regul ar woven fabrics from Note 9 fabrics and rest rict the scope of the subhe ading. The Customs laborator y concluded that both MF GP 270 and Type 2E7-0N White are textile fibers that are interlace d and woven in the tradition al

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sense, and theref o re cannot be Note 9 fabrics classifia ble under Subheadin g 5903.10.1 5. See Walsh Decl.; Ex. 5, Laborator y Reports. According ly, entries 0055038 -2 and 00 55741-1, containing products MF GP 270 and Type 2 E 7

- 0 N White, are classifie d under Subheadin g 5903.10.2 0 with a du ty rate o f 1.7% ad valorem. EM 8/2 PU Trans AS The final product, EM 8/2 PU Trans AS, measures less than 3mm wide and cannot be classifie d within t h e parameter s of Chapter 5910. See Def . ’ s F a cts ¶ 11(a); Pl.’s Resp. to Def.’s Facts ¶ 11. Turning to Heading 5 903, EM 8 /2 PU Tra ns AS has been established as a woven f abric in conformit y with the requireme nts of Chapter Note 1. See Def.’s Facts at ¶ 11(b); Pl.’s Resp. to Def.’s Facts at ¶ 11. The Court relies on Defendant ’s lab analysis of the represent ative sample for EM 8/2 PU Trans AS, to conclude that the coating is visible to the nake d e y e , s i n ce Plaintiff fails to establish the criteria of Chapter Note 2(a)(1) and (3) based on the recor d. The parties differ as to whether EM 8/2 PU Trans AS can bend manually around a cylinder of a diameter of 7 mm, a t a temperatu re between 15°C and 30°C without fracturin g . S parks asserts that this product can meet the test of Note 2(a ) ( 2 ) b u t o ffers no admissibl e evidence t o that end. Instead, it urges the Court to conduct its own test of Note 2(a)(2). See Pl’s Resp. at 12-13. The Court r e s i s t s the temptatio n t o p erform fact-find ing functions on a motion for summary judgment. However, this issue remains a question of law since Sparks has offered n o contrad ictory ev idence on the record before the Court and so

no compellin g reason exists to discredit Defendant ’s laborator y testing. T h e G overnment ’s lab report concludes that EM 8/2 PU Trans cannot ben d

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manually around a cylinder of a diameter of 7mm, at a temperatu re between 15°C and 30° C w i t h o u t fracturin g. Therefore , EM 8/2 PU Trans AS is excluded from clas sificatio n under H eading 59 03. Sin ce EM 8/2 PU Trans AS is excluded from HTSUS headings 5910 and 5903, the Court must look to another heading for classific ation. Heading 3921, HTSUS, provides for “[o]ther plates, sheets, film, foil and strip, of plastics. ” No t e 2(m) to Chapter 39 excludes “[g]oods of section XI (textiles and textile articles) .” As discussed above, Sparks has failed to demonstra te that the subject merchandi se is classifia ble under Section XI, and consequen tly is not foreclose d from classific ation under Heading 3921 by Chapter Note 2(m). The Court c o ncludes that Entry 0018964-5 , containin g article EM 8/2 PU Trans AS , is most appropriately classified under Sub heading 3 921.90.25 , HTSUS, as: 3921 Other pla tes, shee ts, film, foil and strip, o f

plastics:

* * * 3921.90 Other:

* * * 3921.90.2 5 Combined with text ile mater ials and weighing more than 1.49 2 kg/m [p]roduc ts with t extile 2 : component s in whic h man-mad e fibers predomina te by weight over any other si ngle text ile fiber 10.3% IV. Concl usion For the aforement ioned reasons, Defendant must prevail “as a matter of law,” based on t he eviden ce before the Cour t. Anderson, 477 U.S. at 251-52. There remains n o f actual disputes that must be resolved at trial. As a result, Spark’s motion is denied and the Governmen t’s motion for summa ry judgme nt is gra nted.

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The following ent r i e s w e re abandoned by Plaintiff and are hereby dismissed : 1758482-7 , 1758593-1 , 0018821-7 , 0018917-3 , 0018992-6 , 0055232-1 , 0055126-5 , 0055310-5 , 005673-7, 0056589-3 , 0056740-2 , 0057066- 1, 0056634-7 , 0018743-3 , 0018769-8 , 0054935-0 , 0054712-3 . The Court dismisses Entry 0054859-2 for lack of jurisdict ion. Plaintiff has failed to establ ish the e lements n ecessary to its case and upon which it would bear the burden of proof at trial, with respect to entr i e s 0 056488-8, 0018909-0 , and 0056352-6 . Finally, the Court finds that entries 0055038- 2 and 0055741-1 are properly classifie d under Subheadin g 5903.10.2 0, HTSUS, and Entry 0018964-5 is classifie d under HTSUS Subhe a d ing 3921.90.2 5.



### /s/ TSOUCALAS NICHOLAS TSOUCALAS SENIO R JUDGE Dated: June 1, 2 010

New York, New York