SGI, Inc. v. US
| Decision Date | 19 January 1996 |
| Docket Number | Slip Op. 96-22. Court No. 92-05-00359. |
| Citation | 917 F. Supp. 822,20 CIT 158 |
| Parties | SGI, INCORPORATED, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Meeks & Sheppard, New York City (Ralph H. Sheppard, Lisa Levaggi Borter), for plaintiff.
Frank W. Hunger, Assistant Attorney General of the United States; Joseph I. Liebman, Attorney-in-Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, Department of Justice (Barbara M. Epstein, Amy M. Rubin); Karen P. Binder, Office of Assistant Chief Counsel, International Trade Litigation, United States Customs Service, Washington, DC, for defendant.
Plaintiff, SGI, Incorporated of Cranston, Rhode Island, imports "Chill" coolers from Taiwan, China, and Hong Kong. The imports consist of portable soft-sided vinyl coolers used for storage of food or beverages at a cold temperature over time, which may be carried by handles or straps. The merchandise is identical to the coolers in Sports Graphics, Inc. v. United States, 12 Fed.Cir. (T) ___, 24 F.3d 1390 (1994), aff'g., 16 CIT 919, 806 F.Supp. 268 (1992),1 involving entries during the 1986 through 1988 period and, therefore, classified under the Tariff Schedules of the United States (TSUS).
The relevant provisions of the Harmonized Tariff Schedule of the United States (HTSUS) are as follows:
BACKGROUND
Upon liquidation of the entries, the merchandise was classified by the United States Customs Service (Customs) under subheading 4202.92.45, HTSUS, and assessed the schedule duty rate of 20% ad valorem, except Entry No. 137-1014490-1 covered by Court No. 91-06-00413.2
Defendant claims that if the classification invoked by Customs in liquidation is determined by the Court to be incorrect, then defendant urges alternatively that the imports are classifiable as "similar containers," i.e., similar to the exemplars named in Heading 4202, and dutiable at the same rate, 20% ad valorem, under subheading 4202.92.90, HTSUS.
Plaintiff challenges Customs' classification and opposes defendant's proposed alternative classification, both under Heading 4202, and claims various alternative classifications under Chapter 39, HTSUS: Heading 3923, covering "Articles for the conveyance or packing of goods, of plastics ...," dutiable at the rate of 3% ad valorem; Heading 3924 covering "Tableware, kitchenware, other household articles and toilet articles, of plastics," dutiable at the rate of 3.4% ad valorem; and Heading 3926, the residual provision for articles of plastics, dutiable at the rate of 5.3% ad valorem.
As a classification dispute, the Court has jurisdiction pursuant to 28 U.S.C. § 1581(a) (1988) and this action is before the Court for de novo review under 28 U.S.C. § 2640(a)(1) (1988). Currently before the Court are cross-motions for summary judgment pursuant to U.S. CIT R. 56. The cross-movants agree, and the Court finds, there are no genuine disputed material issues of fact for trial and the action may be decided on motion for summary judgment under Rule 56.
For the reasons set forth below, plaintiff's motion for summary judgment is denied; defendant's cross-motion for summary judgment sustaining Customs' classification and dismissing the action is denied; summary judgment sustaining defendant's proposed alternative classification is granted.
As evidentiary support of its motion, plaintiff submits an affidavit of Jeffrey Jacober, President of SGI, Incorporated, successor to Sports Graphics, Incorporated, plaintiff in Sports Graphics, supra. (See Affidavit of Jeffrey Jacober (Jacober Aff.) ¶ 1.) Defendant has submitted the declaration of Dan Chojnacki, President of Domestic Bag Company, Incorporated in Akron, Ohio. (See Decl. of Dan Chojnacki, reprinted in Def.'s Resp. to Pl.'s Opp'n to Def.'s Cross-Mot. for Summ.J. Ex. C.) Additionally, both parties have submitted various documentary exhibits, some appended to the foregoing affidavit and declaration,3 and various Customs rulings under the TSUS to which reference is made by the parties in their briefs.
The recently decided case of Totes, Inc. v. United States, 18 CIT ___, 865 F.Supp. 867 (1994), aff'd, 14 Fed.Cir. (T) ___, 69 F.3d 495 (1995), also discussed infra, articulates the common characteristics and purposes of the exemplar containers under Heading 4202, which holding, of course, is binding on this Court.
Certain marketing or advertising literature depicting coolers and various other bags, claimed by defendant to be distributed by bag manufacturers, is appended to defendant's memoranda of law and is relied on by defendant in its response to factually establish that plaintiff's "Chill" coolers are of the same class or kind of merchandise as that marketed by the identified bag manufacturers, and the exemplar containers named in Heading 4202. These appended marketing materials are properly objected to by plaintiff as being without evidence of authenticity, by affidavit or otherwise, and will not be considered by the Court as evidence on these cross-motions.4
Plaintiff's objection to the Chojnacki Declaration and Exhibit 1 attached thereto, which is the declarant's own marketing literature, is totally without merit. Plaintiff's objection to the declaration is grounded, improperly, on the fact that it was not submitted in the form of an affidavit or "sworn statement." Declarations may be used in lieu of affidavits. 28 U.S.C. § 1746 (1988) (). Because the declarant's statements authenticate his own marketing literature, plaintiff's authentication objection is also without merit.
Upon consideration of the parties' Statements of Material Facts Not in Issue in accordance with U.S. CIT R. 56(i), the Jacober Affidavit, the Chojnacki Declaration, the facts set forth in Sports Graphics as to the design, construction, and purpose of merchandise identical to that at issue here, and the courts' opinions in Totes, which articulate the common characteristics and purposes of the Heading 4202 exemplar containers, the Court finds that there is no genuine dispute as to any material facts.
The subject coolers, marketed by plaintiff under the trade name "Chill," with other designations for specific models of different sizes, are portable soft-sided vinyl food coolers that serve to store food and beverages maintaining a cold temperature over time (as implied by the name "Chill").5 The imports have an insulative polyethylene closed cell foam approximately ½ inch thick between a vinyl outer shell and vinyl inner liner surrounding the storage space of the cooler. The insulative properties of the coolers is comparable to that of other commercially marketed food coolers, including both hard and soft-sided coolers. The top of the rectangular cooler is secured by a patented zippered interlocking flap. Carrying and portability of the coolers is facilitated by a handle or shoulder strap. There is no dispute that plastic is the component material of chief value. The coolers may be used in a number of locations where food or beverages might be consumed, such as in and around the home and during trips away from home on picnics, sporting, and at spectator and participation sporting events.
In support of its claim that the coolers are not ejusdem generis with the Heading 4202 exemplar containers, plaintiff heavily relies on the holding in Sports Graphics that the identical coolers were not ejusdem generis with the TSUS luggage exemplars. (See generally, Pl.'s Mem. in Support of Mot. for Summ.J. (Pl.'s Br.) at 11-16.)
In Sports Graphics, Customs had classified plaintiff's coolers as "Other" articles of "luggage" under item 706.62, TSUS, pursuant to the definitional Headnotes 2(a)(i) and (ii) of Schedule 7, Part 1, Subpart D.6See Sports Graphics, 16 CIT at 919, 920-21, 806 F.Supp. at 269-70. Plaintiff claimed, and the CIT agreed, that the merchandise was not ejusdem generis with the TSUS luggage exemplars because Id. at 926, 806 F.Supp. at 274. Accordingly, the coolers were properly dutiable under item 772.15, TSUS,7 as On appeal, the CAFC affirmed, holding with respect to ejusdem generis:
The trial court concluded that when determining the classification of the merchandise at issue here, under a proper...
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