939 F.Supp. 891 (CIT. 1996), 95-01-00036, Amity Leather Co. v. United States

Docket Nº:Court No. 95-01-00036.
Citation:939 F.Supp. 891
Party Name:AMITY LEATHER COMPANY and Luggage and Leather Goods Manufacturers of America, Inc., Plaintiffs, v. UNITED STATES, Defendant, Colony One Trading Corp., Consignee, Party in Interest. Slip Op. 96-140.
Case Date:August 20, 1996
Court:Court of International Trade

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939 F.Supp. 891 (CIT. 1996)

AMITY LEATHER COMPANY and Luggage and Leather Goods Manufacturers of America, Inc., Plaintiffs,



Colony One Trading Corp., Consignee, Party in Interest.

Slip Op. 96-140.

Court No. 95-01-00036.

United States Court of International Trade.

Aug. 20, 1996

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Sandler, Travis & Rosenberg, Miami, FL (Leonard L. Rosenberg, Paul G. Giguere), counsel for Plaintiffs.

Frank W. Hunger, Assistant Attorney General; Joseph I. Liebman, Attorney in Charge, International Trade Field Office; Barbara M. Epstein, Civil Division, Dept. of Justice, Commercial Litigation Branch; Karen P. Binder, Assistant Chief Counsel, International Trade Litigation, United States Customs Service, Of counsel, for Defendant.

Serko & Simon, New York City (Joel K. Simon, Daniel J. Gluck, Barbara Y. Wierbicki), counsel for Consignee, Party in Interest.

Siegel Mandell & Davidson, New York City (Brian S. Goldstein, Steven S. Weiser, Paul A. Horowitz), counsel for amici curiae Liz Claiborne Accessories, Inc., Louis Vuitton Hawaii, Inc., and Louis Vuitton N.A., Inc.

Rode & Qualey, New York City (William J. Maloney) counsel for amicus curiae Cartref, Ltd. d/b/a MCM.


POGUE, Judge:

Plaintiffs, domestic parties in interest, have invoked this Court's jurisdiction under 28 U.S.C. § 1581(b), challenging a decision of the United States Customs Service 1 which denied plaintiffs' petition filed pursuant to section 516 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516 (1994). The action involves the proper classification of non-rigid plastic flat goods within subheading 4202.32 of the Harmonized Tariff Schedule of the United States ("HTSUS"). The provisions under consideration are as follows:

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Customs' classification is before the Court for de novo review pursuant to 28 U.S.C. § 2640(a) (1994) on the summary judgment motions of the plaintiffs and defendant. The consignee in interest, Colony One Trading Corporation, submitted a brief in support of defendant's motion. The Court also received several briefs amici curiae in support of defendant's motion. 2 The issue in the case is the meaning of the phrase "of reinforced or laminated plastics" in HTSUS subheading 4202.32.10.


The merchandise at issue consists of a change purse made of non-rigid plastic with an outer surface of plastic sheeting backed by a textile material that provides support. The textile fabric has been joined to the plastic sheeting by heat and pressure. There is no dispute that the merchandise in question is classifiable under the six-digit subheading 4202.32 HTSUS. 3


Prior to the conversion to the HTSUS in 1989, the tariff term "Of reinforced or laminated plastics" was defined in the predecessor TSUS to include a requirement of rigidity:

(i) rigid, infusible, insoluble plastics formed by the application of heat and high pressure on two or more superimposed layers of fibrous sheet material which has been impregnated or coated with plastics, or

(ii) rigid plastics comprised of imbedded fibrous reinforcing material (such as paper, fabric, asbestos, and fibrous glass) impregnated, coated or combined with plastics usually by the application of heat or heat and low pressure.

Schedule 7, Part 12, Subpart A, Headnote 2, TSUS (emphasis added). 4 The definition set forth in the TSUS was not included in the HTSUS. The HTSUS has no parallel or like definition of the tariff term "of reinforced or laminated plastics."

When first considering classification under subheading 4202.32 HTSUS, Customs applied the TSUS definition requiring rigidity to the term "of reinforced or laminated plastics;" Customs classified non-rigid plastic "flat goods" under subheading 4202.32.20 HTSUS ("other") which carries a 20% ad valorem rate. See Headquarters Ruling Letters HQ 083415 (May 18, 1989), HQ 084929 (Aug. 22, 1989), HQ 087210 (May 10, 1991). In 1991 Customs reconsidered its classification of non-rigid plastic flat goods under the HTSUS and began classifying those items

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under the lower tariff rate provision 4202.32.10 HTSUS covering "reinforced or laminated" plastic flat goods. See Liz Claiborne v. United States, Consolidated Court No. 89-10-00562, (CIT April 11, 1991) (stipulated judgment on agreed statement of facts). 5 In so doing Customs abandoned the old TSUS definition requiring rigidity. Plaintiffs, domestic manufacturers of non-rigid flat goods, commenced this action to challenge the lower tariff rate classification and consequent weakening of protection for the domestic industry. Plaintiffs argue that the term "of reinforced or laminated plastics" should be narrowly defined and require rigidity like its statutory definition in the predecessor TSUS. The defendant and the party in interest argue for a construction of the phrase "reinforced or laminated plastics" in accord with its clear and unambiguous common meaning which encompasses the goods in question.


Rule 56 of this court permits summary judgment when "there is no genuine issue as to any material fact...." USCIT R. 56(d). Customs' classification is before this court for de novo review pursuant to 28 U.S.C.§ 2640(a)(2) (1994). The court makes "its determinations upon the basis of the record made before the court." Id. In addition, the legislative mandate specifically directs the court to determine the correct classification for the merchandise involved. 28 U.S.C. § 2643(b) (1994). In establishing the classification, the court must consider "whether the government's classification is correct, both independently and in comparison with the importer's alternative." Jarvis Clark Co. v. United States, 2 Fed.Cir. (T) 70, 75, 733 F.2d 873, reh'g denied, 2 Fed.Cir. (T) 97, 739 F.2d 628 (1984).

"The ultimate issue as to whether particular imported merchandise has been classified under an appropriate tariff provision ... entails a two step process: (1) ascertaining the proper meaning of specific terms in the tariff provision; and (2) determining whether the merchandise at issue comes within the description of such terms as properly construed." Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1391 (1994). The first step is a question of law; the second, a question of fact. E.M. Chem. v. United States, 9 Fed.Cir. (T) 33, 35, 920 F.2d 910 (1990); see also, Medline Indus., Inc. v. United States, 62 F.3d 1407, 1409 (Fed.Cir.1995). In the present case, the only issue in controversy is the meaning and scope of the tariff term "of reinforced or laminated plastics"--a question of law. See United States v. Florea & Co., Inc., 25 CCPA 292, 296, 1938 WL 4027 (1938). Accordingly, summary judgment is appropriate. 6

Rule 1 of the General Rules of Interpretation of the Harmonized Tariff Schedule provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes."...

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