Slip Op. 20-123
UNITED STATES COURT OF INTERNATIONAL TRADE
KENT INTERNATIONAL, INC.,
Plaintiff,
Before: Leo M. Gordon, Judge
v.
Court No. 15-00135
UNITED STATES,
Defendant.
OPINION
[Plaintiff’s motion for summary judgment denied; Defendant’s cross-motion for summary
judgment granted.]
Dated: August 25, 2020
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.
Gordon, Judge: 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
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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.
I. Undisputed Facts
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
Court No. 15-00135 Page 3
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
Court No. 15-00135 Page 4
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,
Court No. 15-00135 Page 5
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.
II. Standard of Review
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 (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 (1970);
Anderson, 477 U.S. at 261 n.2.
III. Background
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”) (addressing various procedural matters); Kent Int’l, Inc.
v. United States, 41 CIT ___, 264 F. Supp. 3d 1340 (2017) (“Kent II”) (denying
Court No. 15-00135 Page 6
Defendant’s motion to dismiss Plaintiff’s “treatment” and “established and uniform
practice” claims); Kent Int’l, Inc. v. United States, 43 CIT ___, 393 F. Supp. 3d 1218 (2019)
(“Kent III”) (ruling for Defendant on merits of classifying Plaintiff’s child bicycle safety seats
under HTSUS heading 8714 as accessories of bicycles).
IV. Discussion
A. Treatment under 19 U.S.C. § 1625(c)
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 CIT
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 CIT ___, 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 Motorola III, 30 CIT at ___, 462 F. Supp. 2d at 1372.
Additionally, the implementing regulation addresses what an importer must
demonstrate to establish a “treatment”:
Court No. 15-00135 Page 7
(c) Treatment previously accorded to substantially identical
transactions –
(1) General. The issuance of an interpretive ruling that has
the effect of modifying or revoking the treatment previously
accorded by Customs to substantially identical transactions
must be in accordance with the procedures set forth in
paragraph (c)(2) of this section. The following rules will apply
for purposes of determining under this section whether a
treatment was previously accorded by Customs to
substantially identical transactions of a person:
(i) There must be evidence to establish that:
(A) There was an actual determination by a Customs
officer regarding the facts and issues involved in the claimed
treatment;
(B) The Customs officer making the actual
determination was responsible for the subject matter on
which the determination was made; and
(C) Over a 2-year period immediately preceding the
claim of treatment, Customs consistently applied that
determination on a national basis as reflected in liquidations
of entries or reconciliations or other Customs actions with
respect to all or substantially all of that person's Customs
transactions involving materially identical facts and issues;
(ii) The determination of whether the requisite treatment
occurred will be made by Customs on a case-by-case basis
and will involve an assessment of all relevant factors. In
particular, Customs will focus on the past transactions to
determine whether there was an examination of the
merchandise (where applicable) by Customs or the extent to
which those transactions were otherwise reviewed by
Customs to determine the proper application of the Customs
laws and regulations. For purposes of establishing whether
the requisite treatment occurred, Customs will give
diminished weight to transactions involving small quantities
or values, and Customs will give no weight whatsoever to
informal entries and to other entries or transactions which
Customs, in the interest of commercial facilitation and
accommodation, processes expeditiously and without
examination or Customs officer review;
Court No. 15-00135 Page 8
(iii) Customs will not find that a treatment was accorded to a
person's transactions if:
(A) The person's own transactions were not accorded
the treatment in question over the 2-year period immediately
preceding the claim of treatment;
(B) The issue in question involves the admissibility of
merchandise;
(C) The person made a material false statement or
material omission in connection with a Customs transaction
or in connection with the review of a Customs transaction and
that statement or omission affected the determination on
which the treatment claim is based; or
(D) Customs advised the person regarding the
manner in which the transactions should be presented to
Customs and the person failed to follow that advice; and
(iv) The evidentiary burden as regards the existence of the
previous treatment is on the person claiming that treatment.
The evidence of previous treatment by Customs must include
a list of all materially identical transactions by entry number
(or other Customs assigned number), the quantity and value
of merchandise covered by each transaction (where
applicable), the ports of entry, the dates of final action by
Customs, and, if known, the name and location of the
Customs officer who made the determination on which the
claimed treatment is based. In addition, in cases in which an
entry is liquidated without any Customs review (for example,
the entry is liquidated automatically as entered), the person
claiming a previous treatment must be prepared to submit to
Customs written or other appropriate evidence of the earlier
actual determination of a Customs officer that the person
relied on in preparing the entry and that is consistent with the
liquidation of the entry.
19 C.F.R. § 177.12(c). In Motorola II, the Federal Circuit recognized that the term
“treatment” in § 1625(c) was ambiguous and held that § 177.12(c)(1)(ii) contained a
permissible interpretation of the term that was entitled to deference under Chevron. See
Motorola II, 436 F.3d at 1366–67; see also Motorola III, 30 CIT at ___, 462 F. Supp. 2d.
at 1373–74 (considering application of § 177.12(c)(1)(ii) on remand).
Court No. 15-00135 Page 9
Plaintiff advances two different lines of argument for its claim that Customs violated
the treatment statute. First, Plaintiff contends that Customs did not afford Kent a treatment
that had been established with respect to Plaintiff’s own entries of the subject
merchandise. See Pl.’s Br. at 12–21. Plaintiff contends that between August 2008 and
October 2010 “Customs established a treatment of classifying Kent’s child bicycle seats
as seats in HTSUS heading 9401 and disregarding the [2005 Kent Ruling] that had
classified the seats as bicycle accessories in HTSUS heading 8714.” Pl.’s Br. at 12–13.
Specifically, Plaintiff argues that “the heading 9401 treatment is reflected in the Customs
approvals of 14 protests covering 35 entries, plus 9 PEAs covering 9 entries.” Id. at 13.
Defendant disagrees noting that “Plaintiff’s claim fails because CBP did not
consistently apply the alleged classification determination ‘on a national basis as reflected
in liquidations of entries or reconciliations or other Customs actions’ during any two-year
period.” Def.’s Reply at 3 (citing 19 C.F.R. § 177.12(c)(1)(i)). Specifically, Defendant
highlights Kent’s 45 entries at the Port of Long Beach that were entered between
December 4, 2008 and March 31, 2014 and were liquidated between October 16, 2009
and February 13, 2015 under HTSUS heading 8714. Id. at 4 (citing Def.’s Facts Stmt.
¶ 20; Pl.’s Resp. to Facts at 2). Defendant argues that in 2009 and 2010, within the
purported 2-year period identified by Plaintiff supporting its treatment claim, Kent asked
that the Port of Long Beach suspend any decision on Kent’s pending protests until
Customs reached a decision on Kent’s second AFR at the Port of New York/Newark. See
id. (citing Def.’s Facts Stmt. ¶¶ 21–22; Pl.’s Resp. to Facts at 2). Defendant contends that
“[a]lthough plaintiff focuses only on the entries liquidated and/or reliquidated in
Court No. 15-00135 Page 10
heading 9401 from 2008 to 2010 at one port, a treatment claim requires the Court to look
to ‘all or substantially all of that person’s Customs transactions.’” Id. at 5 (citing 19 C.F.R.
§ 177.12(c)(1)(i)) (internal citation omitted). Given the 2005 Kent Ruling, as well as the
refusal of Customs’ officials at the Port of Long Beach to approve Kent’s protests in 2009
and 2010, Defendant maintains that “[t]he consistent application of any classification
determination ‘on a national basis’ over any two-year time period does not exist on these
facts, which is fatal to plaintiff’s claim.” Id.
In an apparent acknowledgment of this fact, Plaintiff argues that because the
protests at the Port of Long Beach remained pending during the time period identified by
Plaintiff, the liquidations of the subject entries under heading 8714 are not final and
“do not constitute final Customs actions.” Pl.’s Resp. at 7. Thus, Plaintiff insists that
Customs’ actions with respect to Kent’s Long Beach entries do not disqualify Kent’s claim
of treatment under 19 C.F.R. § 177.12(c). Id. at 8.
The court agrees with Defendant that Plaintiff cannot demonstrate a “consistent
application of any classification determination ‘on a national basis’ over any two-year time
period.” Plaintiff’s attempt to brush away Customs’ actions with respect to the entries at
the Port of Long Beach directly conflicts with the language of the regulation. The
regulation does not limit the considerations of the court to only “final Customs actions.”
Rather, the court reviews whether “Customs consistently applied [a] determination . . . as
reflected in liquidations of entries or reconciliations or other Customs actions with respect
to all or substantially all of that person's Customs transactions involving materially
identical facts and issues.” 19 C.F.R. § 177.12(c)(1)(i). “[L]iquidations” are specifically
Court No. 15-00135 Page 11
identified as actions that must be considered. Although the court agrees that it must
consider the protest approvals and PEAs at the Port of New York/Newark as “other
Customs actions,” the court likewise considers the gamut of Customs’ actions taken at
the Port of Long Beach. Given that the regulation specifically requires consistency in
Customs’ actions on a “national basis,” the court cannot conclude that Plaintiff has
established that Customs violated a treatment under § 1625(c)(2) and 19 C.F.R.
§ 177.12(c).
Alternatively, Plaintiff contends that Customs violated the treatment statute by
classifying Kent’s merchandise under heading 8714 despite routinely classifying
substantially identical merchandise imported by Kent’s competitors under heading 9401.
See id. at 22–28. Plaintiff relies on the three rulings issued to its competitors (Bell Sports
in 2007, Todson in 2009, and Britax in 2011), arguing that these rulings demonstrate that
“Customs adopted a ‘treatment’ from 2007 to 2014 of classifying all similar child bicycle
safety seats” under heading 9401. See Pl.’s Br. at 23–25. While Defendant disputes
various aspects of Plaintiff’s claim of treatment based on the entries of third parties, see
Def.’s Br. at 22–29, the court concludes that it need not reach the issue of whether Plaintiff
may rely on the third-party entries that it identifies to establish its claim of treatment.1
Plaintiff’s claim of treatment based on the entries of third parties fails for the same
reason its claim of treatment based on its own entries fails. Given the 2005 Kent Ruling
1
Similarly, the court does not reach Defendant’s arguments challenging the time frame
for Plaintiff’s claim of treatment, see Def.’s Br. at 19–21, as the court agrees that Plaintiff
cannot point to any two-year time period of consistent treatment as required under the
regulation.
Court No. 15-00135 Page 12
and Customs’ actions with respect to Kent’s entries at the Port of Long Beach, Plaintiff is
unable to demonstrate that there was a two-year period in which Customs consistently
classified entries of the subject merchandise under heading 9401. Plaintiff is thus unable
to demonstrate the consistency in Customs’ consideration and classification of the subject
merchandise on a national basis that is necessary for Plaintiff to prevail on a claim of
treatment under § 1625(c)(2) and 19 C.F.R. § 177.12(c).
B. Established and Uniform Practice under 19 U.S.C. § 1315(d)
Plaintiff next argues that Customs’ classification of the subject merchandise under
HTSUS heading 8714 violated 19 U.S.C. § 1315(d). Section 1315(d) provides in relevant
part:
(d) Effective date of administrative rulings resulting in
higher rates No administrative ruling resulting in the
imposition of a higher rate of duty or charge than the
Secretary of the Treasury shall find to have been applicable
to imported merchandise under an established and uniform
practice shall be effective with respect to articles entered for
consumption or withdrawn from warehouse for consumption
prior to the expiration of thirty days after the date of
publication in the Federal Register of notice of such ruling.
19 U.S.C. § 1315(d). This Court has previously held that a plaintiff could show an
established and uniform practice (“EUP”) under § 1315(d) through actual uniform
liquidations, even though the Secretary of the Treasury had made no “finding” that such
a practice existed. See Heraeus-Amersil, Inc. v. United States, 8 CIT 329, 335, 600 F.
Supp. 221, 226 (1984). This so-called de facto EUP arises when Customs consistently
classified a particular type of merchandise under a specific category of the HTSUS prior
to some distinct point in time. See Atari Caribe, Inc. v. United States, 16 CIT 588, 595,
Court No. 15-00135 Page 13
799 F. Supp. 99, 106–07 (1992). The requirements for establishing a de facto EUP,
however, are stringent. See Jewelpak Corp. v. United States, 297 F.3d 1326, 1332 (Fed.
Cir. 2002) (citing Heraeus-Amersil, Inc. v. United States, 795 F.2d 1575 (Fed. Cir. 1986)).
In Kent II, the court acknowledged that Plaintiff may have a claim for a de facto
EUP based on the allegations in its Complaint, but that Plaintiff faces a significant
evidentiary burden. Specifically, the court explained that to prevail on its claim that a
de facto EUP existed, Plaintiff must demonstrate: “(1) a high number of entries resulting
in the alleged uniform classifications, (2) a high number of ports at which the merchandise
was entered, (3) an extended period of time over which the alleged uniform classifications
took place, and (4) a lack of uncertainty regarding the classification over time.” Kent II,
43 CIT at ___, 264 F. Supp. 3d at 1344 (citing Heraeus-Amersil, Inc. v. United States,
9 CIT 412, 415–16, 617 F. Supp. 89, 93 (1985)).
The court notes that Customs previously rejected Kent’s claim that the agency
violated a de facto EUP “for several reasons.” See 2015 Kent Ruling. First, as it did in
denying Kent’s treatment claim, Customs relied on the fact that the 2005 Kent Ruling,
“which classified Kent’s child bike seats under heading 8714,” was never revoked. Id.
Second, Customs emphasized that the “Port of Long Beach liquidated all of Kent’s entries
of child bike seats under heading 8714.” Id.
Here, Plaintiff maintains that “based the best information available to Kent
reflecting hundreds of entries at 14 ports of entry over a 10-year period, Customs had an
EUP of classifying child bicycle seats under HTSUS heading 9401.” Pl.’s Br. at 29. Plaintiff
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further contends that “the Bell Sports, Todson, and Britax Rulings of 2007, 2009, and
2011 support [Kent’s claim as to Customs’] established and uniform practice as well.” Id. 2
Plaintiff’s arguments, however, would have the court completely disregard the
2005 Kent Ruling, as well as all of Kent’s entries made between 2008 and 2014 that were
classified and liquidated under heading 8714. See Pl.’s Reply at 14–15 (arguing that there
were “Uniform Liquidations Of Child Bicycle Safety Seats Under Heading 9401 Between
2007 And 2014,” but omitting any mention of Kent’s entries at the Port of Long Beach
classified under heading 8714). Plaintiff is correct that its entries at the Port of Long Beach
remained under suspended protest for the relevant time period; however, Plaintiff fails to
address the fact that these entries demonstrate that Customs did not engage in an
established and uniform practice of classifying child safety seats under heading 9401. 3
The court cannot see how it could reasonably conclude that there was “a lack of
uncertainty regarding the classification over time” given this record. Accordingly, the court
rejects Plaintiff’s claim that Customs violated a de facto EUP.
2
The court notes that Plaintiff’s arguments are similar to those rejected by Customs in
the 2015 Kent Ruling.
3
A significant portion of Plaintiff’s briefing on the EUP issue, as well as Defendant’s
response, focuses on evidence of Kent’s competitors’ “substantially identical” entries that
were classified under heading 9401. See Def.’s Br. at 36–38; Pl.’s Reply at 19–23.
Because Customs’ classification of Plaintiff’s entries at the Port of Long Beach
demonstrates that there was not an established and uniform practice of classifying the
merchandise under heading 9401, the court does not reach the question of whether
Plaintiff may rely on third-party entries in establishing a de facto EUP, nor whether
Plaintiff’s proffered evidence with respect to the third-party entries is admissible.
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V. Conclusion
For the foregoing reasons, the court concludes that Plaintiff has failed to
demonstrate that Customs denied Kent the benefit of a treatment under 19 U.S.C.
§ 1625(c) or an EUP under 19 U.S.C. § 1315(d) when the agency classified the subject
merchandise under HTSUS heading 8714. Plaintiff’s motion for summary judgment is
therefore denied, and Defendant’s cross-motion for summary judgment is granted.
Judgment will be entered accordingly.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: August 25, 2020
New York, New York