H.I.M./Fathom, Inc. v. U.S.

• Decision Date: 14 July 1997
• Docket Number: Court No. 92-12-00808.,Slip. Op. 97-96.
• Citation: 981 F.Supp. 610
• Parties: H.I.M./FATHOM, INC., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

981 F.Supp. 610

H.I.M./FATHOM, INC., Plaintiff, v. UNITED STATES, Defendant.

Slip. Op. 97-96.

Court No. 92-12-00808.

United States Court of International Trade.

July 14, 1997.

Sandler, Travis & Rosenberg, P.A., Miami, FL (Leonard L. Rosenberg and Paul G. Giguere), for plaintiff.

Frank W. Hunger, Assistant Attorney General; Joseph I. Liebman, Attorney-in-Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice (Bruce N. Stratvert); of counsel: Mark G. Nackman, Office of Assistant Chief Counsel, International Trade Litigation, United States Customs Service, Washington, DC, for defendant.

OPINION

TSOUCALAS, Senior Judge.

Plaintiff, H.I.M./Fathom ("Fathom"), challenges the United States Customs Service's ("Customs") classification of its import merchandise including wetsuits, wetsuit shoes, wetsuit headgear, wetsuit gloves and weight belts as "garments"¹ under headings 6113 and 6114, 6404.19.80, 6505.90.60, 6116.10.25 and 6217.10.00, respectively, of the Harmonized Tariff Schedule of the United States ("HTSUS") (1990). Plaintiff contends its imports are properly classified as "other watersport equipment" under HTSUS Chapter 95. The Court has jurisdiction over this matter under 28 U.S.C. § 1581(a) (1994).

Background

The main products at issue are closed-cell neoprene rubber wetsuits, consisting of a neoprene and textile laminate manufactured in St. Lucia, West Indies. The laminate is made of chemically blown closed-cell neoprene rubber compressed between layers of textile. The wetsuits at issue are made of two kinds of material: (1) "Seaflex," a neoprene rubber layer laminated with a knit fabric on both the interior and exterior surfaces; and (2) "Durasoft," a neoprene rubber layer laminated with a plush or pile material on the interior surface. The material comes in thicknesses of 1/8", 3/16" or 1/4", depending on the type of water in which the suit is intended to be used. Stitching and neoprene rubber cement are used to assemble the suits. The shoes, headgear and gloves consist of basically the same material as the wetsuits.

The wetsuit material insulates the body through the layer of water that enters the space between the suit and the wearer while diving. When the wearer's body and the layer of water caught between the interior surface of the suit and the wearer's skin reach an equilibrium temperature, heat loss is reduced. Customs Ruling 088542, Pl.'s App., Ex. A, at 1 (May 1, 1992).

Customs classified the merchandise at issue as garments in the following manner: (1) the Seaflex wetsuits under HTSUS heading 6113, with a duty of 7.60 percent ad valorem; (2) the Durasoft wetsuits under HTSUS heading 6114, with a duty of 16.10 percent ad valorem; (3) the wetsuit shoes under HTSUS 6404.19.80, with a duty of 20 percent ad valorem; (4) the wetsuit headgear under HTSUS 6505.90.60, with a duty of 14.10 percent ad valorem; (5) the wetsuit gloves under HTSUS 6116.10.25, with a duty of 19.80 percent ad valorem; and (6) the weight belts under HTSUS 6217.10.00, with a duty of 15.50 percent ad valorem. Upon review of Fathom's protest, which alleged the merchandise is properly classified under Chapter 95, Customs denied the protest in full. See id.

In its denial, Customs discussed the scope of HTSUS heading 9506, articles and equipment for sports, and determined that the Explanatory Notes demonstrate the limitation of Chapter 95 to "apparatus and appliances." Id. at 4. Given this limitation, and the specific exclusion of "[s]ports clothing" by Chapter Note 1(e) to Chapter 95, Customs stated that all sports clothing, including protective garments, are excluded from the chapter. Id. Customs also noted that, as an eo nomine provision, Chapter 95 is clear in its scope and the wetsuits are not the type of article meant to be included in the chapter. Id. at 4-5.

Further, with regard to HTSUS Chapter 61, Customs determined that headings 6113 and 6114 include "divers' suits," as well as other similar merchandise, as articles classified as garments. Id. at 6. Customs noted that protective sports clothing not worn for "decency, comfort or adornment," which distinguished wearing apparel under the Tariff Schedule of the United States ("TSUS"), can nevertheless be classified as garments under the HTSUS. Id. Finally, Customs explained that the "use" test is not applicable in this case. Id.

Fathom now appeals Customs' denial of its protest, challenging Customs' classification of its imported merchandise and claiming its wetsuits and related merchandise are properly classified under HTSUS 9506.29.00:

                    9506     Articles and equipment for ... gymnastics
                             athletics, other sports (including table-tennis)
                             or outdoor games, not specified or
                             included elsewhere in this chapter; swimming
                             pools and wading pools; parts and
                             accessories thereof
                

                                         * * *
                            water skis, surf boards, sailboards and
                            other water-sport equipment; parts and
                            accessories thereof
                                         * * *
                9506.29.00  Other .............................4.64%
                

Under Fathom's proposed classification, the merchandise at issue would be dutiable at 4.64 percent ad valorem or free of duty under the provisions of the Caribbean Basin Economic Recovery Act. Fathom moves this Court for summary judgment and defendant cross-moves for summary judgment.

Discussion

On a motion for summary judgment, the Court must consider whether a case presents any issues of genuine material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). If there are no such issues, summary judgment is appropriate when the movant is entitled to judgment as a matter of law. See Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed.Cir.1987). The meaning of a tariff term is a question of law to be decided by the Court, whereas the determination of whether a particular article fits within that meaning is a question of fact. Hasbro Indus., Inc. v. United States, 879 F.2d 838, 840 (Fed.Cir. 1989). In this case, because the Court finds there are no genuine issues of material fact to be decided and the dispositive issues to be resolved are legal, summary judgment is appropriate.

Pursuant to 28 U.S.C. § 2640(a) (1994), Customs' classification decision is subject to de novo review. The Court must determine "whether the government's classification is correct, both independently and in comparison with the importer's alternative." Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed.Cir.1984). In cases such as this, where there is no factual dispute between the parties, Customs' presumption of correctness is irrelevant. Goodman Mfg., L.P. v. United States, 69 F.3d 505, 508 (Fed. Cir.1995); see also Rollerblade, Inc. v. United States, 112 F.3d 481, 484 (Fed.Cir.1997) (stating that, where there are no disputed issues of material fact, "no deference attaches to Customs' classification decisions either under 28 U.S.C. § 2639 or under [the] Chevron [doctrine]").

The definition and scope of terms in a provision of the HTSUS is to be determined by the wording of the statute. Lynteq, Inc. v. United States, 976 F.2d 693, 696 (Fed.Cir.1992); Gen. R. Interp. 1, HTSUS. However, if a tariff term is not clearly defined by the HTSUS, and if legislative history is not determinative of its meaning, its correct meaning is resolved by ascertaining its common and commercial meaning. Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed.Cir.1994); see also Amity Leather Co. v. United States, 20 CIT ___, ___, 939 F.Supp. 891, 894 (1996). To determine the common meaning of a tariff term, the Court may utilize standard dictionaries and scientific authorities, as well as its own understanding of the term. Lynteq, 976 F.2d at 697.

In its determination of the definition of tariff terms, the Court may also utilize the Explanatory Notes. Explanatory Notes which are published by the World Customs Organization (formerly known as the Customs Co-operation Council), provide guidance in interpreting the language of the HTSUS. See Bausch & Lomb, Inc. v. United States, 21 CIT ___, ___, 957 F.Supp. 281, 288 (1997) (stating tariff acts must be interpreted in accordance with Congressional intent and Congress's endorsement of the Explanatory Notes demonstrates intent of Congress). Although not legally binding on the United States, the Explanatory Notes generally indicate the "proper interpretation" of provisions within the HTSUS. Lynteq, 976 F.2d at 699 (citing H.R. Conf. Rep. No. 100-576, 100th Cong., 2d Sess. 549 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1582); see also Marubeni Am. Corp. v. United States, 35 F.3d 530, 535 n. 3 (Fed.Cir.1994) (stating Explanatory Notes, while not dispositive or binding, are instructive). Additionally, in determining whether an item is properly classified under a particular heading in the HTSUS, the Explanatory Notes are persuasive authority for the Court when they specifically include or exclude an item from a tariff heading. See, e.g., Bausch & Lomb, 21 CIT at ___, 957 F.Supp. at 288.

Fathom contends its wetsuits are not properly classified as garments because they are not personal attire. In particular, Fathom notes that the HTSUS garment headings at issue here, 6113 and 6114, fall under the category of "wearing apparel," which has been defined as articles worn for reasons of "decency, comfort and adornment." Pl.'s Mem. Supp. Mot. Summ. J. at 12-13 (citing Antonio Pompeo v. United States, 40 Cust. Ct. 362, 365, C.D. 2006 (1958)). In addition to this definition, Fathom asserts that the wearing apparel category has been interpreted to exclude articles worn in a sport or occupation to protect against hazards of a game, sport or occupation. Id.

Fathom proposes that its import wetsuits are properly categorized under HTSUS 9506.29.00...