Kent Int'l, Inc. v. United States
| Decision Date | 25 August 2020 |
| Docket Number | Slip Op. 20-123,Court No. 15-00135 |
| Citation | 466 F.Supp.3d 1361 |
| Parties | KENT INTERNATIONAL, INC., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Philip Yale Simons, Jerry P. Wiskin, and Patrick C. Reed, Simons & Wiskin of South Amboy, NJ for Plaintiff Kent International, Inc.
Monica P. Triana, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, for Defendant United States. With her on the brief were Ethan P. Davis, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Justin R. Miller, Attorney-in-Charge International Trade Field Office, and Aimee Lee, Assistant Director. Of counsel on the brief was Yelena Slepak, Office of Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection of New York, NY.
Plaintiff Kent International, Inc. ("Kent") challenges the classification by U.S. Customs and Border Protection ("Customs" or "CBP") of its entries of imported child safety seats for bicycles ("subject merchandise") under the Harmonized Tariff Schedule of the United States ("HTSUS"). Before the court are cross-motions for summary judgment. See Pl.'s Amended Mot. for Summ. J., ECF No. 52 ("Pl.'s Br."); Def.'s Cross-Mot. for Summ. J. and Opp. to Pl.'s Mot. for Summ. J., ECF No. 55 ("Def.'s Br."); see also Pl.'s Reply & Resp. to Def.'s Cross-Mot. for Summ. J., ECF No. 58-2 ("Pl.'s Resp."); Def.'s Reply in Supp. of Cross-Mot. for Summ. J., ECF No. 59 ("Def.'s Reply"). Customs classified the subject merchandise as "Parts and accessories of vehicles of heading 8711 to 8713: ... Other: ... Other" under HTSUS subheading 8714.99.80, at a 10% duty rate. Plaintiff argues that Customs violated the "treatment" provisions of 19 U.S.C. § 1625(c), as well as the "established and uniform practice" provisions of 19 U.S.C. § 1315(d), and that the subject merchandise should be classified under HTSUS heading 9401. The court has jurisdiction pursuant to 28 U.S.C. § 1581(a) (2012). For the reasons set forth below, Plaintiff's motion for summary judgment is denied and Defendant's cross-motion for summary judgment is granted.
The following facts are not in dispute. See generally Plaintiff's Statement of Material Facts Not in Dispute, ECF No. 51-4 ("Pl.'s Facts Stmt."); Defendant's Response to Plaintiff's Statement of Material Facts, ECF No. 55-3 ("Def.'s Resp. to Facts"); Defendant's Statement of Undisputed Material Facts, ECF No. 55-2 ("Def.'s Facts Stmt."); Plaintiff's Response to Defendant's Statement of Undisputed Material Facts, ECF No. 58-1 ("Pl.'s Resp. to Facts"). The merchandise at issue is Plaintiff's child safety seats for bicycles. Def.'s Facts Stmt. ¶ 1; Pl.'s Resp. to Facts at 1. Customs issued ruling NY L86862 dated August 9, 2005 to Kent classifying its child bicycle safety seats under HTSUS heading 8714 ("2005 Kent Ruling"). Pl.'s Facts Stmt. ¶ 1; Def.'s Resp. to Facts at 1. Starting in April 2008 through at least October 2010, Kent submitted multiple protests, including two separate applications for further review ("AFRs"), to Customs seeking reclassification and re-liquidation under HTSUS heading 9401 of entries of child bicycle safety seats at the Port of New York/Newark. See Def.'s Facts Stmt. ¶¶ 8–14; Pl.'s Resp. to Facts at 2. From August 2008 through December 2010, Customs granted all of these protests, but did not make a determination on Kent's AFRs. Id.
On October 14, 2010, Kent made requests for post-entry amendments ("PEAs") as to 9 entries of "bicycle child carrier seats and parts thereof," seeking to amend each entry, which had not yet been liquidated, claiming that the proper tariff classification was under heading 9401. Def.'s Facts Stmt. ¶ 15; Pl.'s Resp. to Facts at 2. The PEAs were granted by Customs at the Port of New York/Newark on November 12, 2010. Id. In sum, between August 2008 and November 2010, Customs approved 14 protests covering 35 entries and 9 PEAs covering 9 entries classifying Kent's child bicycle safety seats under HTSUS heading 9401. Def.'s Facts Stmt. ¶¶ 8–15; Pl.'s Resp. to Facts at 2. Beginning with Kent's protest covering entries made in December 2010, Customs stopped granting, and instead suspended, Kent's protests challenging the classification of its child bicycle safety seats at the Port of New York/Newark. Def.'s Facts Stmt. ¶ 18; Pl.'s Resp. to Facts at 2.
The 45 entries of Kent's child bicycle safety seats at issue in this action, submitted under cover of 17 separate protests, were made at the Port of Long Beach between December 4, 2008 and March 31, 2014 and were liquidated between October 16, 2009 and February 13, 2015 under HTSUS heading 8714. See Def.'s Facts Stmt. ¶ 20; Pl.'s Resp. to Facts at 2. The 17 protests filed at the Port of Long Beach were received by CBP between December 24, 2009 and March 12, 2015, and all of those protests were subsequently denied. See Def.'s Facts Stmt. ¶ 21; Pl.'s Resp. to Facts at 2. In several of the protests filed in 2009 and 2010 at the Port of Long Beach, Kent asked that the port suspend making a decision pending a determination on the second AFR made at the Port of New York/Newark. Def.'s Facts Stmt. ¶ 22; Pl.'s Resp. to Facts at 2. Despite the 2010 approval of the New York/Newark protests, including the protest in which Kent filed the second AFR, Kent was informed by Customs at the Port of Long Beach in 2011 that it planned to deny the pending protests and uphold the classification of the merchandise under HTSUS heading 8714, consistent with the 2005 Kent Ruling that was never revoked by Customs Headquarters. Def.'s Facts Stmt. ¶¶ 23, 24; Pl.'s Resp. to Facts at 2. Kent filed Protest No. 2704-11-100728, which included an AFR, at the Port of Long Beach on April 11, 2011 with respect to the merchandise in issue. Def.'s Facts Stmt. ¶ 25; Pl.'s Resp. to Facts at 2.
Customs issued ruling NY N016953 to one of Kent's competitors, Bell Sports, dated September 21, 2007 classifying its child bicycle seats under HTSUS heading 9401. Pl.'s Facts Stmt. ¶ 23; Def.'s Resp. to Facts at 8. Customs issued ruling NY N066722 to a second of Kent's competitors, Todson, Inc. ("Todson"), on July 16, 2009 classifying its child bicycle seats under HTSUS heading 9401. Pl.'s Facts Stmt. ¶ 21; Def.'s Resp. to Facts at 8. Customs issued ruling NY N166197 to another of Kent's competitors, Britax Child Safety Inc. ("Britax"), on June 6, 2011 classifying its child bicycle seats under HTSUS heading 9401. Pl.'s Facts Stmt. ¶ 22; Def.'s Resp. to Facts at 8.
On June 26, 2014, following notice and comment, Customs issued ruling HQ H180103 revoking the three rulings issued to Bell Sports, Todson and Britax. Def.'s Facts Stmt. ¶ 33; Pl.'s Resp. to Facts at 3. In HQ H180103, Customs determined, consistent with the 2005 Kent Ruling, that "the child bicycle seat designed for attachment to an adult bicycle is classified in heading 8714, HTSUS," dutiable at 10% ad valorem. Id. This revocation was published in the Customs Bulletin on July 23, 2014 and became effective on September 22, 2014. Id. On February 11, 2015, in response to Kent's April 2011 AFR, Customs issued ruling HQ H170637 ("2015 Kent Ruling"). Def.'s Facts Stmt. ¶ 34; Pl.'s Resp. to Facts at 3. In that ruling, Customs found that "Kent's child bike seats are properly classified under heading 8714, HTSUS, as accessories to bicycles," and also denied Kent's claims that Customs violated a treatment or an established and uniform practice. Id.
The court reviews Customs' protest decisions de novo. 28 U.S.C. § 2640(a)(1). USCIT Rule 56 permits summary judgment when "there is no genuine issue as to any material fact." USCIT R. 56(c) ; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering whether material facts are in dispute, the evidence must be considered in the light most favorable to the non-moving party, drawing all reasonable inferences in its favor. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ; Anderson, 477 U.S. at 261 n.2, 106 S.Ct. 2505.
This action has been the subject of three previous opinions, and the court assumes familiarity with those decisions. See Kent Int'l, Inc. v. United States, 40 CIT ––––, 161 F. Supp. 3d 1340 (2016) (" Kent I") (); Kent Int'l, Inc. v. United States, 41 CIT ––––, 264 F. Supp. 3d 1340 (2017) (" Kent II") (); Kent Int'l, Inc. v. United States, 43 CIT ––––, 393 F. Supp. 3d 1218 (2019) (" Kent III") ().
In the Motorola line of cases, this Court and the U.S. Court of Appeals for the Federal Circuit ("Federal Circuit") discussed 19 U.S.C. § 1625(c), as well as the implementing regulation adopted by Customs that further clarifies the meaning of the statutory phrase "treatment previously accorded by the Customs Service to substantially identical transactions," 19 C.F.R. § 177.12(c). See Motorola, Inc. v. United States, 28 C.I.T. 1310, 350 F. Supp. 2d 1057 (2004) ; Motorola, Inc. v. United States, 436 F.3d 1357 (Fed. Cir. 2006) (" Motorola II"); Motorola, Inc. v. United States, 30 C.I.T. 1766, 462 F. Supp. 2d 1367 (2006) (" Motorola III"); Motorola, Inc. v. United States, 509 F.3d 1368 (Fed. Cir. 2007). "To establish a violation of § 1625(c)(2), [an importer] must show that: (1) an interpretative ruling or decision; (2) effectively modified; (3) a ‘treatment’ previously accorded by Customs to ‘substantially identical transactions’; and (4) the interpretative ruling or decision had not been subject to the notice and comment process set forth in § 1625(c)(2)." See ...
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Kent Int'l, Inc. v. United States
...8714. Under that heading, Kent's bicycle seats would be subject to a 10% ad valorem duty. See Kent Int'l. Inc. v. United States , 466 F. Supp. 3d 1361, 1363 (Ct. Int'l Trade 2020) (" Kent II ") (describing 2005 Ruling). The 2005 Ruling thereafter obligated Kent to initially enter its bicycl......
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Kent Int'l, Inc. v. United States
...8714. Under that heading, Kent's bicycle seats would be subject to a 10% ad valorem duty. See Kent Int'l. Inc. v. United States, 466 F.Supp.3d 1361, 1363 (Ct. Int'l Trade 2020) ("Kent II") (describing 2005 Ruling). The 2005 Ruling thereafter obligated Kent to initially enter its bicycle sea......