Slip Op. 09–149
UNITED STATES COURT OF INTERNATIONAL TRADE
ARKO FOODS INTERNATIONAL,
INC.,
Plaintiff,
v. Before: Gregory W. Carman, Judge
UNITED STATES, Court No. 07‐00274
Defendant. PUBLIC
[Plaintiff’s motion for partial summary judgment is granted in part and denied in part, and
Defendant’s cross motion for summary judgment is granted in part and denied in part. The Court
finds the appropriate tariff classification is a tariff subheading advanced by neither party. Judgment
to be entered accordingly.]
Law Offices of Michael R. Doram (Michael R. Doram) for Plaintiff.
Tony West, Assistant Attorney General; Barbara S. Williams, Attorney‐in‐Charge,
International Trade Field Office, Commercial Litigation Branch, Civil Division, United
States Department of Justice (Jason Matthew Kenner, Mikki Cottet); Michael Heydrich,
Office of Assistant Chief Counsel, Int’l Trade Litigation, U.S. Customs and Border
Protection, of counsel, for Defendant.
December 22, 2009
OPINION
CARMAN, JUDGE: This matter is before the Court on a Motion for Partial Summary
Judgment by Plaintiff Arko Foods and a Cross Motion for Summary Judgment by
Court No. 07‐00274 Page 2
Defendant United States. The parties are in dispute over the correct tariff classification
of a frozen dessert known as mellorine, imported by Plaintiff. For the reasons set forth
below, Plaintiff’s motion is granted in part and denied in part, and Defendant’s motion
is granted in part and denied in part.
FACTUAL BACKGROUND
Plaintiff is an importer of mellorine from the Philippines.1 The parties are not in
dispute as to the nature of mellorine: it is marketed and sold as a frozen dessert, with a
consistency and manner of consumption similar to ice cream; it is eaten in a frozen state
in bowls, ice cream cones and sundaes.2 The six specific varieties of mellorine involved
in this lawsuit are Ube Royale (made with purple yam), Quezo Royale (also known as
Quezo Real) (made with cheese), Fruit Salad, Mango, Macapuno (made with coconut
preserve), and Durian.3 Mellorine is manufactured from a variety of ingredients,
including water, refined sugar, vegetable oil, fruit puree or preserve, corn syrup, skim
1
Plaintiff’s Separate Statement of Undisputed Material Facts (“Pl.’s Facts”) ¶ 2
(Docket # 34), Defendant’s Response to Plaintiff’s Separate Statement of Undisputed
Material Facts (“Def.’s Resp. Facts”) ¶ 2 (Docket # 46); Defendant’s Public Statement of
Material Facts As To Which There Are No Genuine Issues To Be Tried (“Def.’s Facts”)
¶ 1 (Docket # 36), Plaintiff’s Response to Defendant’s Statement of Undisputed Material
Facts (“Pl.’s Resp. Facts”) ¶ 1 (Docket # 48).
2
Pl.’s Facts ¶¶ 3, 4, Def.’s Resp. Facts ¶¶ 3, 4; Def.’s Facts ¶¶ 16, 17, Pl.’s Resp.
Facts ¶¶ 16, 17.
3
Pl.’s Facts ¶¶ 17, 21, Def.’s Resp. Facts ¶¶ 17, 21; Def.’s Facts ¶ 9, Pl.’s Resp.
Facts ¶ 9.
Court No. 07‐00274 Page 3
milk powder, whey, stabilizers, emulsifiers, artificial food flavors, and maltodextrin.4
Depending on variety, mellorine may also contain cheese, whole milk powder, purple
yam or pieces of fruit.5 Mellorine is manufactured by adding fruit or vegetable purees
and artificial colors and flavors to a base mixture, and then partially freezing the result.6
Once partially frozen, distinguishing fruit preserves, vegetable pieces or cheese are then
added, before the product is completely frozen, packaged and ready for sale.7
Customs and Border Protection (“Customs”) classified Plaintiff’s mellorine
under HTSUS heading 2105 for “Ice cream and other edible ice, whether or not
containing cocoa.”8 Specifically, Customs classified mellorine under HTSUS
subheading 2105.00.40,9 which applies to “dairy products described in additional U.S.
4
Pl.’s Facts ¶ 22, Def.’s Resp. Facts ¶ 22; Def.’s Facts ¶ 20, Pl.’s Resp. Facts ¶ 20.
5
Pl.’s Facts ¶ 22, Def.’s Resp. Facts ¶ 22.
6
Def.’s Facts ¶¶ 11, 12, Pl.’s Resp. Facts ¶¶ 11, 12.
7
Def.’s Facts ¶¶ 14, 15, Pl.’s Resp. Facts ¶¶ 14, 15.
8
Pl.’s Facts ¶ 24, Def.’s Resp. Facts ¶ 24.
9
Compl. ¶ 19, Ans. ¶ 19.
Court No. 07‐00274 Page 4
note 1 to chapter 4.”10 Additional U.S. note 1 to chapter 4 encompasses three categories
of dairy products, separated by semicolons.11 Customs classified Plaintiff’s product
under HTSUS subheading 2105.00.40 because it regards mellorine as falling within the
first of these three categories as an “article[] of milk or cream.”
10
The relevant portion of Chapter 21 of the HTSUS reads:
2105 Ice cream and other edible ice, whether or not containing cocoa:
. . .
Other:
Dairy products described in additional U.S. note 1 to
chapter 4:
. . .
2105.00.30 Described in additional U.S. note 10 to chapter 4 and
entered pursuant to its provisions
2105.00.40 Other
heading 2105, HTSUS (2005).
11
In its entirety, Additional U.S. note 1 to Chapter 4 of the HTSUS reads:
For the purposes of this schedule, the term “dairy products described in
additional U.S. note 1 to chapter 4” means any of the following goods: malted
milk, and articles of milk or cream (except (a) white chocolate and (b)
inedible dried milk powders certified to be used for calibrating infrared milk
analyzers); articles containing over 5.5 percent by weight of butterfat which
are suitable for use as ingredients in the commercial production of edible
articles (except articles within the scope of other import quotas provided for
in additional U.S. notes 2 and 3 to chapter 18); or, dried milk, whey or
buttermilk (of the type provided for in subheadings 0402.10, 0402.21, 0403.90
or 0404.10) which contains not over 5.5 percent by weight of butterfat and
which is mixed with other ingredients, including but not limited to sugar, if
such mixtures contain over 16 percent milk solids by weight, are capable of
being further processed or mixed with similar or other ingredients and are
not prepared for marketing to the ultimate consumer in the identical form
and package in which imported.
Court No. 07‐00274 Page 5
PROCEDURAL BACKGROUND
Plaintiff moves the Court for partial summary judgment, asking the Court “to
issue an order determining that [General Rule of Interpretation] GRI 3(b) controls the
proper tariff classification of mellorine and to construe the term ‘articles of milk’ in
additional U.S. note 1 to Chapter 4 to exclude merchandise in which milk constitutes a
minor ingredient, compared to the predominant ingredients.”12 Defendant moves the
Court for summary judgment in favor of its proffered classification, asserting that
mellorine is properly classified as “ice cream and other edible ice” and as a “dairy
product described in additional U.S. note 1 to Chapter 4.”13
JURISDICTION AND STANDARD OF REVIEW
This Court has jurisdiction pursuant to 28 U.S.C. § 1581(a). “Partial summary
judgment is appropriate when it appears that some aspects of a claim are not genuinely
controvertible and genuine issues remain regarding the rest of the claim.” Ugg Intʹl,
Inc. v. United States, 17 CIT 79, 83, 813 F.Supp. 848, 852 (1993) (quotations and citations
omitted). Summary judgment is appropriate when “there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” USCIT R.
56(c).
12
Pl.’s Mot. for Partial Summ. J. (“Pl.’s MSJ”) 2 (Docket # 34).
13
Def.’s Mot. Summ. J. (“Def.’s MSJ”) 3‐4 (Docket # 36).
Court No. 07‐00274 Page 6
Under 28 U.S.C. § 2639(a)(1),14 “a classification of merchandise by Customs is
presumed to be correct . . . [so] the burden of proof is upon the party challenging the
classification.” Rollerblade, Inc. v. United States, 282 F.3d 1349, 1352 (Fed. Cir. 2002)
(internal quotations and citations omitted). A party challenging Customs’ preferred
classification may satisfy its burden of proof simply by demonstrating that Customs’
classification is incorrect, without necessarily providing the correct classification. See
Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed. Cir. 1984). Ultimately, it is “the
courtʹs duty . . . to find the correct result, by whatever procedure is best suited to the
case at hand.” Id. The Court of International Trade reviews Customs’ protest decisions
“upon the basis of the record made before the court.” 28 U.S.C. § 2640(a)(1).
When there is a dispute over classification, the court first undertakes the legal
question to “construe the relevant classification headings” and then undertakes the
factual question to “determine 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). When “the nature of the merchandise is undisputed, . . . the
14
The statute reads:
Except as provided in paragraph (2) of this subsection, in any civil action
commenced in the Court of International Trade under section 515, 516, or
516A of the Tariff Act of 1930, the decision of the Secretary of the Treasury,
the administering authority, or the International Trade Commission is
presumed to be correct. The burden of proving otherwise shall rest upon the
party challenging such decision.
28 U.S.C. § 2639(a)(1) (2006).
Court No. 07‐00274 Page 7
classification issue collapses entirely into a question of law.” Cummins Inc. v. United
States, 454 F.3d 1361, 1363 (Fed. Cir. 2006) (citations omitted).
DISCUSSION
I. Mellorine Is Properly Classifiable Under HTSUS Heading 2105
A. Parties’ Contentions as to HTSUS Heading
The first challenge Plaintiff brings in its motion for partial summary judgment is
to the appropriate tariff heading of the HTSUS for mellorine. Plaintiff contends that
mellorine is a “composite good” and therefore should be classified according to GRI
3(b).15 Plaintiff asserts that if GRI 3(b) controls classification, mellorine would either fall
under heading 0811, which covers “fruit and nuts, uncooked or cooked by steaming or
boiling in water, frozen, whether or not containing added sugar or other sweetening
matter,” or heading 2106, which covers “[f]ood preparations not elsewhere specified or
included.”16 Plaintiff argues for heading 0811 on the basis of the large quantity, by
15
Pl.’s MSJ 1‐2. Rule 3 of the General Rules of Interpretation of the Harmonized
System reads, in pertinent part:
When, by application of rule 2(b) or for any other reason, goods are, prima
facie, classifiable under two or more headings, classification shall be effected
as follows:
. . .
(b) Mixtures, composite goods consisting of different materials or made
up of different components . . . shall be classified as if they consisted
of the material or component which gives them their essential
character, insofar as this criterion is applicable.
16
Compl. ¶¶ 22‐36; Pl.’s MSJ 4‐5.
Court No. 07‐00274 Page 8
weight, of fruit in each of the varieties of mellorine.17
Defendant responds by asserting that only products with “small quantities of
sugar” may be classified in heading 0811, and that products such as mellorine, which
contain “significant levels of sugar and syrups” cannot be so classified.18 Defendant
also asserts that the small quantities of sugar permitted in frozen fruit and nuts under
heading 0811 may only be added in order to “inhibit oxidation and thus prevent[] the
change of colour which would otherwise occur, generally on thawing out,” and that
sugar is not added to Plaintiff’s mellorine for that purpose.19 Last, Defendant argues
that the presence of multiple additional ingredients including “vegetable oil, skim milk
powders, corn syrup, stabilizers, emulsifiers, artificial flavors, artificial colors, and
maltodextrin” means that mellorine is not prima facie classifiable under heading 0811.20
Defendant also advances arguments in support of its own preferred tariff
classification, heading 2105. Defendant asserts that the heading for “Ice cream and
other edible ices” is an eo nomine provision, and that products described by the specific
17
Pl.’s MSJ 5‐6.
18
Def.’s Resp. to Pl.’s Mot. for Partial Summ. J. (“Def.’s Resp.”) 7‐8 (Docket # 46)
(citing Explanatory Notes to Chapter 8 HTSUS).
19
Id. 8 (citing Harmonized Commodity Description and Coding System
Explanatory Notes (“Explanatory Notes”) to Chapter 8 HTSUS).
20
Id. at 9.
Court No. 07‐00274 Page 9
name of the heading are therefore appropriately classified in that heading.21 For a
definition of what constitutes an “edible ice,” Defendant points to a food science
textbook which states
The broad term, frozen desserts, refers to ice cream and related products.
Specific products include ice cream and its lower fat varieties, frozen custard,
frozen yogurt, mellorine (vegetable fat frozen dessert), sherbet, water ice and
frozen confections. Some of these desserts are served either soft frozen or
hard frozen. . . . The broader category, frozen desserts, also called edible
ice, includes products that contain no milk‐derived ingredients, e.g., water
ices.
(Def.’s MSJ 10 (quoting Ice Cream 1 (2003 6th edition) (emphasis added)).) Defendant
also cites to the explanatory notes for heading 2105 which state “[t]his heading covers
ice cream, which is usually prepared with a basis of milk or cream, and other edible ice
(e.g. sherbet and iced lollipops) whether or not containing cocoa in any proportion.”22
Finally, Defendant points to regulations issued by the Food and Drug Administration
(FDA) which indicate that ice cream, mellorine and sherbet are all members of a
broader category of “frozen desserts.”23
B. Analysis of HTSUS Heading
HTSUS GRIs direct the proper classification of all merchandise and are “applied
21
Def.’s MSJ 8‐9.
22
Id. (citing Explanatory Notes to heading 2105).
23
Def.’s MSJ 11 (citing 21 C.F.R. Part 135 (2006).)
Court No. 07‐00274 Page 10
in numerical order.” Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir.
1999). The court may not consult any subsequent GRI unless the proper classification
cannot be determined by reference to GRI 1. Conair Corp. v. United States, 29 CIT 888,
891 (2005) (citing Mita Copystar Am. v. United States, 160 F. 3d 710, 712 (Fed. Cir. 1998).
According to GRI 1, “classification shall be determined according to the terms of the
headings and any relative section or chapter notes[.]” HTSUS GRI 1.
The heading under which Customs classified mellorine is HTSUS 2105, “Ice
cream and other edible ice, whether or not containing cocoa.” HTSUS heading 2105.
Mellorine is not ice cream, nor do the parties contend that it is, so the first issue for the
Court to decide is whether mellorine is an “other edible ice” within the meaning of this
heading.24 The term “other edible ice” is not explicitly defined within the HTSUS, and
the Court of Appeals for the Federal Circuit has explained that in such circumstances,
the court
may rely upon its own understanding of terms used, and may consult
standard lexiographic and scientific authorities to determine the common
meaning of a tariff term. In addition, the court may look to the Explanatory
Notes accompanying a tariff subheading as a persuasive, but not binding,
interpretative guide.
Value Vinyls, Inc. v. United States, 568 F.3d 1374 (Fed. Cir. 2009) (internal citations and
quotations omitted). After conducting such analysis, the Court concludes that “other
24
An eo nomine provision is one “in which an item is identified by name.” Len‐
Ron Mfg. Co., Inc. v. United States, 334 F.3d 1304, 1308 (Fed. Cir. 2003).
Court No. 07‐00274 Page 11
edible ice” plainly includes mellorine.
The Court is persuaded by the three authorities cited by Defendant that
mellorine is a type of edible ice within the meaning of heading 2105. First, the Court
notes that the food science textbook cited by Defendant indicates that the term “edible
ice” is interchangeable with the term “frozen dessert.” See Robert T. Marshall, H.
Douglas Goff & Richard W. Hartel, Ice Cream 1 (6th ed. 2003). As both parties have
acknowledged that mellorine is a frozen dessert,25 it follows that mellorine is also an
edible ice. Second, the Explanatory Notes for heading 21.05 list as examples of other
edible ice: “sherbet, iced lollipops.” Explanatory Notes 21.05. Sherbet, like mellorine, is
a frozen dessert with some dairy component; a dictionary definition of sherbet is “a
water ice to which milk, egg white, or gelatin is added before freezing.” Webster’s
Third New International Dictionary 2094 (1981). The Court is persuaded that the
composition of mellorine is sufficiently similar to sherbet to warrant the conclusion that
mellorine is also a type of “edible ice” within the meaning of heading 2105. Third, the
Food and Drug Administration regulations have grouped ice cream, goat’s milk ice
cream, mellorine, sherbet and water ices under the heading “frozen dessert,” which is
further persuasive evidence in support of Customs’ position. See 21 C.F.R. Part 135
(2006). Taken together, the Court concludes that these three sources provide substantial
25
Pl.’s Facts. ¶ 2‐3, Def.’s Resp. Facts ¶ 2‐3.
Court No. 07‐00274 Page 12
justification for the conclusion that mellorine is an “other edible ice” within the
meaning of HTSUS heading 2105.
Having concluded that HTSUS 2105 is the appropriate heading for classifying
mellorine, Plaintiff’s second argument, that GRI 3(b) dictates that mellorine should be
classified under heading 0811 as “fruit and nuts“ is unavailing.26 Resort to a later
numbered GRI is inappropriate if the correct heading for the product in question can be
determined under GRI 1, as in this case. See Conair Corp., 29 CIT at 891. Moreover,
mellorine does not meet the threshold requirement which permits classification
pursuant to GRI 3(b); it is not prima facie classifiable under more than one heading.
Mellorine, which the parties agree is “similar to ice cream in consistency and manner of
consumption,”27 “is eaten frozen in bowls, ice cream cones and sundaes,”28 and is
sometimes “referred to as imitation ice cream,”29 is not made “fruit and nuts“ for tariff
classification purposes simply because select varieties of mellorine are flavored with
such ingredients. Consequently, as to the issue of the correct HTSUS heading, the Court
finds that mellorine is classifiable under heading 2105 as “Ice cream and other edible
26
See Compl. ¶¶ 22‐35.
27
Def.’s Facts ¶ 16; Pl.’s Resp. Facts ¶ 16.
28
Def.’s Facts ¶ 17; Pl.’s Resp. Facts ¶ 17.
29
Def.’s Facts ¶ 18; Pl.’s Resp. Facts ¶ 18.
Court No. 07‐00274 Page 13
ice, whether or not containing cocoa.”
II. Mellorine Is Not An Article Of Milk Or Cream Within The Meaning Of
Additional U.S. Note 1 to Chapter 4 of the HTSUs
A. Parties’ Contentions
The Court now turns to the question of the appropriate subheading for the
product in this case. Defendant classified mellorine under HTSUS subheading
2105.00.40, as “dairy products described in additional U.S. note 1 to Chapter 4,” because
it maintains that mellorine is an “article[] of milk or cream.”30 Plaintiff argues that
mellorine is not an article of milk or cream, and therefore is not a dairy product
described in additional U.S. note 1 to Chapter 4.31
As support for its position that mellorine is an article of milk or cream,
Defendant points to a Customs tariff classification ruling from 1993: HQ 952776.32 In
this ruling, the agency determined that “beverages which contain over 5 percent milk
solids are considered to have an appreciable amount of milk.” Customs Headquarters
Ruling Letter (February 10, 1993) (“HQ 952776”). The products classified in this ruling
letter were three flavors of protein drink, each of which were comprised chiefly of
water, sweetener and nonfat dry milk. Id. Defendant asserts that since issuing this
30
Ans. ¶ 19; Def.’s MSJ 14‐18.
31
Pl.’s MSJ 5‐7.
32
Def.’s MSJ 16.
Court No. 07‐00274 Page 14
ruling, Customs has consistently “applied that 5% standard in determining what is an
article of milk,” and this ruling letter is consequently owed Skidmore deference and
speaks persuasively on the appropriate classification of mellorine.33 Defendant’s
position is that mellorine contains more than 5% milk, ergo it is an article of milk or
cream.34
The Plaintiff offers two legal bases for its position that mellorine is not an article
of milk or cream. First, Plaintiff points to Wilsey Foods, Inc. v. United States, 18 CIT 212
(1994). In Wilsey Foods, the court construed a similar phrase to the one at issue in this
litigation – “food preparations of milk or cream” – under HTSUS 1901.90.3030. Id. The
court found that the product in question was not a food preparation of milk or cream
because “milk or cream [was] not the essential ingredient, not the ingredient of chief
value, nor [was] it the preponderant ingredient[.]” Id., at 213. The court went on to
note that the products were “comprised chiefly of vegetable fat and sugar and in any
event were not considered milk or cream products in the industry.” Id. Plaintiff asserts
that under this rubric, mellorine also is not an article of milk or cream.35
Plaintiff goes on to point out that Customs itself actually relied on the framework
33
Def.’s MSJ 16‐17 (citing Skidmore v. Swift & Co., 323 U.S. 135 (1944).)
34
Id. at 15‐16.
35
Pl.’s MSJ 5; Pl.’s Opp. to Def.’s Cross‐Mot. for Summ. J. (“Pl.’s Resp.”) 2‐3
(Docket # 47).
Court No. 07‐00274 Page 15
of Wilsey Foods in another classification ruling, and that this ruling should be accorded
Skidmore deference in the present case.36 Plaintiff points to Customs Headquarters
Ruling Letter HQ 965771, in which Customs determined that white chocolate with
sweetener was not an article of milk or cream because, “the Court of International Trade
has ruled in Wilsey Foods . . . that products which are comprised chiefly of vegetable fat
and sugar are not to be classified as articles of milk or cream.”37 Plaintiff argues that
because mellorine is comprised chiefly of vegetable fat and sugar, it too should not be
classified as an article of milk or cream.38
The government contends that mellorine is an article of milk or cream, even
under the rubric of Wilsey Foods. It asserts that “the dairy ingredients in the mellorine
at issue are essential because mellorine is legally required to contain a significant
percentage of dairy.”39 Defendant also relies on the testimony of its expert witness, Dr.
Bradley, that the frozen dessert industry considers mellorine to be a dairy product.40
It should be noted that Arko Foods previously received a tariff classification
36
Pl.’s Resp. 3‐4.
37
Id. citing Customs Headquarters Ruling Letter (Oct. 17, 2002) (“HQ 965771“).
38
Id.
39
Def.’s Resp. 8 (referring to the standard of identity for mellorine, including non‐
fat milk solids provided in 21 C.F.R. § 135.130(a)).
40
Id. at 7 (citing Def.’s Ex. F at 54).
Court No. 07‐00274 Page 16
letter for mellorine which determined the product was classifiable under HTSUS
2105.00.300041 or 2105.00.4000 as a dairy product described in additional U.S. note 1 to
chapter 4. New York Ruling Letter (August 23, 2001) “NYRL H83504“. Notably,
however, the government does not argue that this ruling letter is controlling on the
Court’s current decision, or even persuasive on the issue of classification.42 Plaintiff also
argues prophylactically that because the ruling letter “was not adopted pursuant to a
deliberative notice and comment rulemaking process,” it is not proper to accord the
ruling Skidmore deference.43
B. Analysis
In a dispute over classification the Court is obliged to determine “the proper
meaning of the tariff provisions at hand.” Universal Elecs. Inc. v. United States, 112
F.3d 488, 491 (Fed. Cir. 1997.) Here, the Defendant asserts that of the various categories
41
2105.00.30 is for products “[d]escribed in additional U.S. note 10 to chapter 4
and entered pursuant to its provisions.” 2105.00.30, HTSUS. Additional U.S. note 10 to
chapter 4 is a quota provision limiting the quantity of goods importable under this
subheading to “4,105,000 kilograms” in any calendar year. Additional U.S. note 10 to
chapter 4, HTSUS. After the quota has been met, goods that would be entered pursuant
to this subheading, are instead entered under 2105.00.40. Plaintiff’s mellorine was
liquidated under 2105.00.40.
42
Defendant simply notes that in this case, Customs has classified mellorine
consistently with the description of NYRL H83504. (Def.’s MSJ 2.)
43
Pl.’s MSJ 7 (citing Structural Indus., Inc. v. United States, 356 F.3d 1366, 1370
(Fed. Cir. 2004.)).
Court No. 07‐00274 Page 17
of dairy products “described in additional U.S. note 1 to chapter 4,“ the only one that
pertains to mellorine is “articles of milk or cream.” This phrase is not defined in the
HTSUS, and the parties dispute whether mellorine is an article of milk or cream.
Therefore, the Court must construe the term to determine its proper meaning, and then
decide whether the term encompasses mellorine.
The Court finds that the Customs classification ruling pertaining to certain milk‐
based beverages, cited by Defendant, does not warrant Skidmore deference either in the
Court’s ultimate question–‐the proper classification of mellorine–‐or in the immediate
task of construing the phrase “articles of milk or cream.”
Under the Skidmore standard articulated in Mead, a classification ruling may
at least seek a respect proportional to its power to persuade. Mead teaches
that whether Skidmore deference should be afforded to a Customs
classification ruling varies depending on its writerʹs thoroughness, logic, and
expertness, its fit with prior interpretations, and any other sources of weight.
Structural Indus., 356 F.3d at 1370 (internal citations and quotations omitted). Contrary
to Defendant’s characterization, HQ 952776 does not “set forth a detailed and careful
analysis for [Customs’] determination of what may constitute an article of dairy.”44
Instead, the ruling letter addresses the considerably narrower question of what
percentage of milk solids a beverage needs to have in order to “have an appreciable
amount of milk.” HQ 952776 at 2. This ruling letter lacks the power to persuade in the
44
See Def.’s MSJ 16.
Court No. 07‐00274 Page 18
present case because mellorine is not a beverage, and because the varieties of mellorine
imported by Arko Foods contain not just water and sweeteners, but significant
quantities of vegetable fat and various fruit purees and preserves as well.45 Moreover,
the Court is not concerned with the quantity of milk solids necessary to make a
beverage have an “appreciable amount of milk,” but rather with what makes a food
product an article of milk or cream.
The Court is persuaded that the factors set out in Wilsey Foods for determining
whether a product was a “food preparation of milk or cream” provide an appropriate
rubric for determining what constitutes an “article of milk or cream” within the
meaning of additional U.S. note 1 to Chapter 4 of the HTSUS.46 Specifically, in
determining if an item is an article of milk or cream, the Court will consider whether
milk or cream is the essential ingredient, the ingredient of chief value, and the
preponderant ingredient. See Wilsey Foods, 18 CIT at 213. Additionally, the Court will
consider any evidence that mellorine is considered an article of milk or cream within
45
Additionally, NYRL H83504, the ruling letter obtained in 2001 by Arko Foods
stating that mellorine would be classified under HTSUS 2105.00.30 or 2105.00.40, does
not warrant Skidmore deference. Defendant has justly avoided asserting that it does, as
the ruling letter is barren of any logical explanation for this classification, and therefore
lacks any power to persuade.
46
The Court also notes that in Arbor Foods, Inc. v. United States, 30 CIT __, __,
2006 WL 1359965 at *6, the court relied on this approach from Wilsey Foods to
determine whether a particular product was a food preparation “of gelatin.”
Court No. 07‐00274 Page 19
the industry. See id. On the basis of the record assembled before the Court, including
various stipulations47 by the parties, the Court concludes that mellorine is not an article
of milk or cream.
1. Milk or Cream is Not the Essential Ingredient
In order for mellorine to be labeled and sold as such in the United States, it must
conform with the “standard of identity” set out by FDA regulation. In pertinent part,
the regulation states:
Mellorine is a food produced by freezing, while stirring, a pasteurized mix
consisting of safe and suitable ingredients including, but not limited to, milk‐
derived nonfat solids and animal or vegetable fat, or both, only part of which
may be milkfat. Mellorine is sweetened with nutritive carbohydrate
sweetener and is characterized by the addition of flavoring ingredients.
21 C.F.R. § 135.130(a)(1) (2006) (emphasis added). The Court finds that while “milk‐
derived nonfat solids” make up an essential ingredient of mellorine, they do not make
up the essential ingredient. According to this standard of identity, mellorine must also
include animal or vegetable fat and nutritive carbohydrate sweetener.
Moreover, the Court notes that the mere presence of milk‐derived ingredients in
a product does not make that product “an article of milk or cream” within the meaning
47
The Court has treated as stipulations those facts set forth by Plaintiff or
Defendant and accepted as true by the opposing party. (Compare Pl.’s Facts, with Def.’s
Resp. Facts; and Def.’s Facts, with Pl.’s Resp. Facts.) The Court also accepts the
information submitted by Plaintiff regarding cost data for mellorine, to which
Defendant stipulated. (See Defendant’s Stipulation Concerning Cost Data (Docket
# 61).)
Court No. 07‐00274 Page 20
of additional U.S. note 1 to Chapter 4. For example, in other standards of identity
issued by the FDA, there are products which are similarly required to have milk‐
derived ingredients, but which do not thereby become articles of milk or cream. For
instance, 21 C.F.R. § 136.130, governing “Milk bread, rolls, and buns,” states that “the
only moistening ingredient permitted in the preparation of the dough is milk or, as an
alternative, a combination of dairy products [meeting certain technical specifications.]”
21 C.F.R. § 136.130 (2006). Similarly, 21 C.F.R. § 139.120 requires that in milk macaroni
products, “milk [or certain specified milk ingredients] is used as the sole moistening
ingredient in preparing the dough.” 21 C.F.R. § 139.120 (2006). That milk bread and
milk macaroni are likely not “articles of milk or cream” within the meaning of
additional U.S. note 1 to chapter 4 suggests that the mere presence of dairy in a given
product is not controlling, and underscores that the multi‐faceted consideration of
Wilsey Foods is reasonable and justified.
2. Milk or Cream is Not the Ingredient of Chief Value in Most
Varieties of Mellorine
Turning to the second factor from Wilsey Foods, upon considering the
stipulation of the parties indicating the relative value of the different ingredients in each
flavor of mellorine, the Court finds that milk is not the ingredient of chief value in
mellorine. Skim milk powder is the ingredient of [[ ]] in [[
]] varieties of mellorine, and in relative terms, the value of milk‐derived
Court No. 07‐00274 Page 21
ingredients is frequently a [[ ]] of the value of the signature fruit preserve
or puree in each flavor.48 In one flavor of mellorine, [[ ]]
is the ingredient of chief value, but if the value of [[ ]]
in that flavor are combined, the milk‐derived ingredients would fall to the same
position it occupies in the other flavors of mellorine: second.49 The Court again notes,
however, the prudence of allowing a three‐part rubric to determine whether a given
product is an article of milk or cream. When the relative value of milk‐derived
ingredients for this flavor of mellorine is considered alongside of the essentiality and
preponderance of the milk‐derived ingredients, it becomes clear that different flavors of
mellorine do not require classification under different subheadings.
3. Milk or Cream is not the Preponderant Ingredient in Mellorine
As in Wilsey Foods, the Court finally considers whether milk or cream is the
preponderant ingredient in mellorine. It is not. In most varieties of mellorine, there is
more water, sugar, fruit preserve or puree and vegetable oil than milk. In order of
preponderance, milk‐derived ingredients range from third to sixth most prevalent
ingredient among the varieties of mellorine at issue in this litigation.50
48
See Confidential Declaration of Florecita C. Fernandez (October 19, 2009)
(stipulated to by Defendant November 12, 2009 (Docket #61)).
49
See id.
50
Def.’s MSJ Conf. Exhibit 3.
Court No. 07‐00274 Page 22
4. Other Considerations
In Wilsey Foods, after setting out the rubric analyzed above, the court also noted
that “in any event [the products] were not considered milk or cream products in the
industry.” Wilsey Foods, 18 CIT at 213. Industry treatment is therefore not irrelevant to
the Court’s determination, and the Court considers the testimony of the government’s
expert witness that the frozen dessert industry considers mellorine to be a dairy product
to have some persuasive weight. However, Dr. Bradley’s testimony is of limited value
because the Court’s obligation is not to determine whether mellorine is a dairy product
in general, but rather whether it is a specific type of dairy product: namely, a dairy
product described in additional U.S. note 1 to Chapter 4 as an article of milk or cream.
The question of whether mellorine is an article of milk or cream for tariff classification
purposes is a decision that lies within the sole discretion of the Court on the basis of the
record assembled before it. See Jarvis Clark, 733 F.2d at 878 (“the court’s duty is to find
the correct result”) (emphasis in original).
Because the Court finds that milk or cream is not the essential ingredient, not the
ingredient of chief value and not the preponderant ingredient in mellorine, the Court
finds that the Plaintiff has carried its burden of proof, and rebutted the presumption of
correctness that attaches to Customs’ classification. However, as Plaintiff has not
identified an alternative subheading within heading 2105, the Court finds that neither
Court No. 07‐00274 Page 23
Plaintiff nor Defendant have advanced the proper tariff subheading for mellorine.
III. The Proper Classification of Mellorine is HTSUS 2105.00.50
Plaintiff has not, and is not required to, establish the correct classification of
mellorine to prevail in its case. See id. In a case such as this, where Plaintiff has
succeeded only in demonstrating the incorrectness of Customs’ preferred classification,
the final step of classification belongs to the Court. See id. In its entirety, the text of
HTSUS heading 2105 reads:
2105.00 Ice cream and other edible ice, whether or not containing cocoa:
Ice cream:
2105.00.05 Described in general note 15 of the tariff schedule and
entered pursuant to its provisions
2105.00.10 Described in additional U.S. note 5 to this chapter and
entered pursuant to its provisions
2105.00.20 Other
Other:
Dairy products described in additional U.S. note 1 to chapter
4:
2105.00.25 Described in general note 15 of the tariff schedule and
entered pursuant to its provisions
2105.00.30 Described in additional U.S. note 10 to chapter 4 and
entered pursuant to its provisions
2105.00.40 Other
2105.00.50 Other
See heading 2105, HTSUS (2005). Having determined that mellorine is an “other edible
ice” within the meaning of heading 2105, but not a dairy product described in
additional U.S. note 1 to Chapter 4, there remains only one subheading under which it
can be classified: 2105.00.50 “Ice Cream and other edible ice, whether or not containing
Court No. 07‐00274 Page 24
cocoa: Other: Other” at a duty rate of 17% ad valorem. See id.
On December 8, 2009 the Court submitted a letter to the parties soliciting their
perspectives and comments on the appropriateness of HTSUS 2105.00.50 as a
classification for mellorine. Plaintiff states that it “fully agrees” with this classification,
but only “[t]o the extent the Court may be considering . . . 2105.00.3000 or 2105.00.4000
as incorrect.”51 Plaintiff then proceeds to reiterate its argument that GRI 3(b) directs the
tariff classification of mellorine under heading 0811. Defendant, in its response to the
Court’s request, states that “2105.00.50, HTSUS, is not an appropriate classification for
the different flavors of mellorine at issue. Mellorine is not only an edible ice, it is also a
dairy article.”52
After considering the positions of the parties, the Court’s opinion remains
unchanged. The Court notes that Defendant, in its opposition to the Court’s proffered
subheading, goes to great length to demonstrate how mellorine is a “dairy product” or
“dairy article.”53 As already explained, supra at 21‐22, this is not the precise question
facing the Court, and the Court finds Defendant’s arguments unavailing.
51
Pl.’s Letter of December 16, 2009 at 1 (Docket # 67.)
52
Def.’s Public Response to the Court’s December 8, 2009 Letter at 1 (Docket # 68.)
(Defendant did not file a confidential version of this letter.)
53
See generally, id.
Court No. 07‐00274 Page 25
CONCLUSION
As explained above, Plaintiff moved the Court for partial summary judgment,
which is appropriate “when it appears that some aspects of a claim are not genuinely
controvertible [but] genuine issues remain regarding the rest of the claim.” Ugg Int’l,
17 CIT at 83. Because there is no dispute between the parties as to the nature of the
merchandise involved in this case, and the only issues to be resolved are legal, there is
no need merely to grant partial summary judgment;54 the case is ripe for disposal at the
summary judgment stage. See e.g., Value Vinyls, Inc. v. United States, 31 CIT __, __,
2007 WL 273839 at *2 (2007) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247‐49
(1986).)
Because the Court agrees with Defendant’s preferred tariff heading, but also
agrees with Plaintiff’s challenge to Customs’ preferred tariff subheading, Plaintiff’s
Motion for Partial Summary Judgment is granted in part and denied in part, and
Defendant’s Motion for Summary Judgment is granted in part and denied in part. For
the foregoing reasons, and pursuant to the Court’s independent obligation to determine
54
In challenging Customs’ preferred tariff subheading for mellorine, Plaintiff has
asked the Court to issue an order determining that “the term ‘dairy product’ in heading
2105 excludes merchandise in which the dairy component is a minor ingredient.” (Pl.’s
MSJ 1.) While the Court agrees with Plaintiff that mellorine is not an article of milk or
cream, the Court declines to issue this specific form of broad declaratory relief.
Court No. 07‐00274 Page 26
the correct tariff classification, Plaintiff’s entries of the subject merchandise shall be
reliquidated under HTSUS 2105.00.50. Judgment to enter accordingly.
/s/ Gregory W. Carman
Gregory W. Carman, Judge
Dated: December 22, 2009
New York, New York