Bauer Nike Hockey Usa, Inc. v. U.S.

• Decision Date: 27 October 2003
• Docket Number: Court No. 00-00325.,Slip Op. 03-142.
• Parties: BAUER NIKE HOCKEY USA, INC., f/k/a Bauer USA, Inc. Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

305 F.Supp.2d 1345

BAUER NIKE HOCKEY USA, INC., f/k/a Bauer USA, Inc. Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 03-142.

Court No. 00-00325.

United States Court of International Trade.

October 27, 2003.

Burak, Anderson, & Melloni, PLC (Jon T. Alexander, Michael B. Rosenberg), Washington, DC, for Plaintiff.

Peter D. Keisler, Assistant Attorney General, John J. Mahon, Acting Attorney in Charge, International Trade Field Office, Amy M. Rubin, Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Sheryl A. French, Attorney, Office of Assistant Chief Counsel, International Trade Litigation, U.S. Bureau of Customs and Border Protection, for Defendant, of counsel.

OPINION

POGUE, Judge.

Plaintiff, BAUER NIKE Hockey USA Inc., f/k/a Bauer USA, Inc. ("Bauer Nike" or "Plaintiff") challenges a decision of the United States Bureau of Customs and Border Protection ("Customs" or "Defendant")¹ denying Plaintiff's protests filed in accordance with section 514 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1514 (2000). At issue is the proper tariff classification under the Harmonized Tariff Schedule of the United States ("HTSUS"), 19 U.S.C. § 1202 (1994), of Plaintiff's imports of ice hockey pants.

Bauer Nike claims that the subject merchandise is classifiable under subheading 9506.99.25, HTSUS, covering "[i]ce-hockey and field-hockey articles and equipment, except balls and skates, and parts and accessories thereof."² Goods classifiable under subheading 9506.99.25 were free of duty for the years 1998, 1999, and 2000 during which the subject merchandise was entered at the port of St. Albans, Vermont.

Customs classified the merchandise under a residual or "basket" provision, subheading 6211.33.00, HTSUS, covering "Other garments, men's or boy's ...: Of man-made fibers."³ Goods classifiable under that subheading were subject to duty rates of 16.6% (1998), 16.5% (1999), and 16.4% (2000) ad valorem.

Bauer Nike protested Customs' classification. In response, Customs' issued Headquarters Ruling ("HQ") 962072 (Aug. 12, 1999), classifying the subject merchandise under subheading 6211.33.00.

Before the Court are cross-motions for summary judgment pursuant to USCIT Rule 56. The Court has jurisdiction pursuant to 19 U.S.C. § 1515 (1994) and 28 U.S.C. § 1581(a) (1994). For the reasons that follow, the Court finds that the subject merchandise is properly classified under subheading 6211.33.00, HTSUS, as "[t]rack suits, ski-suits and swimwear; other garments: Other garments, men's or boys' ...: Of man-made fibers," and grants summary judgment for Defendant.

Standard of Review

Customs' classification is subject to de novo review by this Court pursuant to 28 U.S.C. § 2640.⁴ The Court employs a two-step process in analyzing a customs classification. "[F]irst, [it] construe[s] the relevant classification headings; and second, [it] determine[s] under which of the properly construed tariff terms the merchandise at issue falls." Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1365 (Fed.Cir.1998) (citing Universal Elecs., Inc. v. United States, 112 F.3d 488, 491 (Fed.Cir.1997)).

Interpretation of the tariff classification terms is a question of law, while application of the terms to the merchandise at issue is a question of fact. Bausch & Lomb, Inc., 148 F.3d at 1365. The Court will, nevertheless, consider the reasoning of a Customs' classification ruling, to the degree that the ruling presents the "power to persuade." United States v. Mead Corp., 533 U.S. 218, 235, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)).

Summary judgment is appropriate where there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See USCIT Rule 56(d); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A dispute is genuine "if the evidence is such that [the trier of fact] could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

In a challenge to a tariff classification, summary judgment is appropriate when the dispute involves only the proper classification of the subject merchandise, not the nature of the merchandise itself. Bausch & Lomb, Inc., 148 F.3d at 1365-66. Where there is a dispute about the nature of the subject merchandise, there exists a genuine issue of material fact and a trial is warranted.

Undisputed Facts

In the instant case, the parties agree that the merchandise at issue is described as "hockey pants," or "ice hockey pants" represented by model numbers HP88, HP100, HP500, HP1000, HP3000 and HP5000. Compl. of Bauer Nike at 2; Pl.'s Resp. to Def.'s Stat. Mat'l Facts para. 1-2; Def.'s Stat. Mat'l Facts para. 1-2; Def.'s Mem. Supp. Mot. Summ. J. at 1 ("Def.'s Mem."). The hockey pants are made entirely of synthetic materials. Pl.'s Resp. to Def.'s Stat. Mat'l Facts para. 3; Def.'s Stat. Mat'l Facts para. 3. "The basic design of the hockey pants is comprised of ...: an exterior nylon or polyester shell and an assemblage of interconnected hard plastic guards [or plates] surrounded by soft [polyester, nylon or] foam padding ... attached to a belt beneath the exterior shell [or pants]." Laperriere Aff., Pl.'s Ex. 3 at 2; HP5000 (Large) Mat'l Specs, Pl.'s Ex. 6 at 2-3 (indicating that the model's: floating pad is composed of nylon; thigh guard is composed of polyester knit fabric and "P.U. foam;" spinal padding is composed of nylon and polyester as well as other materials; belly pad is composed of nylon and foam; and hip pads and tail pad are composed of polyester as well as other materials); Pl.'s Mem. Supp. Cross-Mot. Summ. J. and Opp'n to Def.'s Mot. Summ. J. at 3 ("Pl.'s Mem."); Def.'s Reply to Pl.'s Opp'n Def.'s Mot. Summ. J. and Resp. Pl.'s Cross-Mot. Summ. J. at 3 ("Def.'s Reply") (stating that Defendant does not dispute Plaintiff's description of "the history, materials, design and injury-reducing properties" of the ice hockey pants). Additional foam padding is sewn inside the shells of certain models. Laperriere Aff., Pl.'s Ex. 3 at 2; Def.'s Reply at 3. The shell of models HP88, HP100, HP500, HP1000 and HP3000 is permanently sewn to the internal belt, guards, and pads, whereas the shell of model HP5000 is attached to the internal belt, guards and pads by a series of metal buttons. See id. The belt, guards and pads are interconnected by polyester or nylon straps, webbing, mesh or braiding, see Pl.'s Mem. at 4, in order for the internal belt to hold the guards and pads in the correct position. Laperriere Aff., Pl.'s Ex. 3 at 3; Def.'s Reply at 3. The internal belt, guards and pads comprise approximately eighty percent of the total weight of the hockey pants, see Def.'s Reply at 3; Pl.'s Mem. at 5; see also Bauer Nike HP5000 Design Specifications, Pl.'s Ex. 5 (noting that a pair of model HP5000 pants weighs 2.30 kilograms), and are designed to provide protection to the wearer, see Def.'s Resp. to Pl.'s Stat. Mat'l Facts para. 5; Pl.'s Stat. Mat'l Facts para. 6, by absorbing and deflecting blows, collisions, and flying objects. Pl.'s Mem. at 14; Def.'s Reply at 3. Plaintiff markets the ice hockey pants under a "protective equipment" category, Pl.'s Stat. Mat'l Facts para. 1; Def.'s Resp. to Pl.'s Stat. Mat'l Facts para. 1; Protective Information Pamphlet (1999), Pl.'s Ex. 10 at 2, but also indicates that the hockey pants have comfort, fit, and ventilation features. See, e.g., Excerpts of Bauer Nike's Ice Hockey Collection Catalogues, Def.'s Ex. D at 2 (noting that model HP5000 provides "venting in the front of the pant, keeping the player cool. The result-the player sweats less and therefore less sweat is absorbed by the equipment so it stays light."), 3 (stating that models HP3000's and HP1000's three-piece thigh feature "provides a more comfortable fit"), 4 (advertising the model HP100 as containing "200 deniers lightweight nylon for added comfort," and describing model HP500 as containing spandex and a mesh gusset for "increase[d] stretch and ventilation for added comfort and coolness").⁵

As the parties agree as to the nature and material characteristics of the merchandise, and disagree only as to its proper classification under the HTSUS, summary judgment of the classification issue is appropriate.

Issue Presented

The two competing headings at issue here are contained in Chapters 62 and 95 of the HTSUS. Chapter 62, encompassed in Section XI ("Textiles and Textile Articles"), covers "[a]rticles of apparel and clothing accessories, not knitted or crocheted," and "applies only to made up articles of any textile fabric other than wadding." Chapter 62, HTSUS. Note 1(t) to Section XI states that the section excludes articles of Chapter 95, or "toys, games, sports requisites and nets." Section XI, Note 1(t), HTSUS. Chapter 95 specifically covers "[t]oys, games and sports equipment; parts and accessories thereof." Chapter 95, HTSUS. Note 1(e) to Chapter 95 explicitly excludes "sports clothing ... of textiles, of chapter 61 or 62" from classification in that chapter.⁶ Chapter 95, Note 1(e), HTSUS.

Accordingly, the central question in this case is whether the subject merchandise constitutes an article of sports clothing that is composed "of textiles" and otherwise falls within the purview of chapter 62 as an article of apparel,⁷ thereby excluding the merchandise from Chapter 95.

Parties' Contentions

Plaintiff argues that the ice hockey pants are properly classified as protective sports equipment under Heading 9506. Pl.'s Mem. at 14. In particular, Bauer Nike claims that Customs failed to consider whether the protection afforded by the ice hockey pants was significantly greater or essentially different from that offered by conventional textile trousers. Pl.'s Mem. at 25. Because the hockey pants are composed...