Slip Op. 10‐67
UNITED STATES COURT OF INTERNATIONAL TRADE
PACIFIC NORTHWEST EQUIPMENT,
INC.,
Plaintiff,
v. Before: Gregory W. Carman, Judge
THE UNITED STATES OF AMERICA, Court No. 07‐00184
Defendant.
[Plaintiff’s motion for summary judgment is granted, Defendant’s cross‐motion for summary
judgment is denied.]
Dated: June 15, 2010
Joel R. Junker & Associates (Joel R. Junker), for Plaintiff.
Tony West, Assistant Attorney General, Barbara S. Williams, Attorney‐in‐Charge,
Commercial Litigation Branch, Civil Division, United States Department of Justice
(Justin R. Miller, Edward F. Kenny, Jason M. Kenner); and Beth C. Brotman, of counsel,
Office of Assistant to Chief Counsel, International Trade Litigation, U.S. Customs and
Border Protection, Department of Homeland Security, for Defendant.
OPINION
CARMAN, JUDGE: This case requires the Court to determine the appropriate tariff
classification for what appears to be, at first glance, a contradiction in terms: “platform
containers.” Pacific Northwest Equipment (“Plaintiff” or “PNW Equipment”)
challenges the denial of six protests by Customs and Border Protection (“CBP”) relating
Court No. 07‐00184 Page 2
to the classification of 98 entries of Plaintiff’s imported product. For the reasons set
forth below, the Court finds that Plaintiff’s product is properly classifiable under
heading 8609, HTSUS,1 as “Containers (including containers for the transport of fluids)
specially designed and equipped for carriage by one or more modes of transport.”
Summary judgment is therefore granted for Plaintiff.
BACKGROUND
Plaintiff refers to its merchandise as “platform containers,” which it defines as
“special‐purpose shipping container[s]” without “doors, walls, or a roof,” and which
are “designed for use in intermodal transportation, typically by road, rail, and ocean
transport.” (Mem. of P&A in Supp. of Pl.’s Mot. For Summ. J. (“Pl.’s MSJ”) 1.)
Defendant agrees that the subject merchandise is “used to secure cargo during transport
on vessels, trucks, and railroad cars,” but assiduously avoids referring to the subject
merchandise as any sort of container, preferring to use the term “platform,” in isolation.
(Mem. In Opp’n. to Pl.’s Mot. for Summ. J. and in Supp. of Def.’s Cross‐Mot. for Summ.
J. (“Def.’s MSJ”) 1, see also Def.’s Resp. To Pl.’s Stmt. Of Undisputed Material Facts
1
Heading 8609, HTSUS (2005) reads:
8609.00.00 Containers (including containers for the transport of fluids)
specially designed and equipped for carriage by one or more
modes of transport
This language remained unchanged in the 2006 edition of the HTSUS.
Court No. 07‐00184 Page 3
(“Def.’s Resp. Facts”) ¶¶ 1, 2, 3, 4, 7.)2 Defendant’s objection to the nomenclature is a
reflection of its position that the imported merchandise is not classifiable under the
tariff subheading for containers, but rather as an article of iron or steel under
subheading 7326.90.8587.3 The Court’s adoption of Plaintiff’s terminology throughout
this opinion is an effect, and not a cause, of the Court’s determination that Plaintiff’s
product is appropriately classified under heading 8609.
PNW Equipment imported platform containers from Korea into the United
States between March 2005 and February 2006. (Complaint (“Compl.”) Sch. A, Def.’s
MSJ 1.) Prior to importation, in January 2005, Plaintiff received a CBP Form 29 Notice
of Action. The form indicated the position of CBP’s National Import Specialists in New
2
On June 15, 2010, the court accepted Plaintiff’s amended statement of
undisputed material facts and the amended counter statement of the United States on
consent of the parties. The amendments are immaterial to the disposition of the case.
3
The relevant portion of Chapter 73, HTSUS (2005) reads:
7326 Other articles of iron or steel:
. . .
7326.90 Other
. . .
Other
. . .
Other
. . .
7326.90.85 Other
. . .
7326.90.8587 Other
This language remained unchanged in the 2006 edition of the HTSUS.
Court No. 07‐00184 Page 4
York that platform containers should be classified according to their constituent
material—steel—under heading 7326, and not under heading 8609, because they “do
not have a measurable internal volume, and are simply platforms.” (Pl.’s MSJ 2.) In
February 2005, at the behest of Plaintiff, CBP requested an internal advice
memorandum from CBP Headquarters regarding the appropriate classification of
Plaintiff’s merchandise. (Compl. ¶ 11, Answer (“Ans.”) ¶ 11; HQ 967571 (Aug. 16,
2006), Pl.’s Ex. O.) By the time the requested internal advice memorandum arrived in
August 2006, CBP had already liquidated 68 of the 98 entries contested in this lawsuit
under heading 7326; the remaining 30 entries were liquidated in December 2006.
(Compl. ¶ 12, Sch. A, Ans. ¶ 12.) Plaintiff filed protests with CBP which were denied on
December 11, 2006 and May 15, 2007. (Compl ¶ 4‐5, Ans. ¶ 4‐5.) After paying the
duties owed pursuant to 28 U.S.C. § 2637(a), Plaintiff commenced this lawsuit with the
filing of a summons on June 1, 2007. (Summons, Dkt. 1.) This Court has jurisdiction
under 28 U.S.C. § 1581(a).
STANDARD OF REVIEW
Summary judgment is appropriate when “there is no genuine issue as to any
material fact” and the Court determines that the movant is “entitled to judgment as a
matter of law.” USCIT R. 56(c). The Court of International Trade reviews CBP protest
decisions “upon the basis of the record made before the court,” which is to say, de novo.
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28 U.S.C. § 2640(a)(1); See also Park B. Smith v. United States, 347 F.3d 922, 924 (Fed.
Cir. 2003). Ultimately, in a tariff classification case, “the court’s duty is to find the
correct result, by whatever procedure is best suited to the case at hand.” Jarvis Clark
Co. v. United States, 733 F.2d 873, 878 (Fed. Cir. 1984) (emphasis in original).
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
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
A. According to the Ordinary Definition of “Container,” Platform Containers are
Appropriately Classified in Heading 8609
Defendant argues that heading 8609 is not the appropriate tariff classification for
platform containers only on the grounds that platform containers are not containers, as
that term is ordinarily used. (Def.’s MSJ 7‐24.) That is to say, Defendant does not offer
any argument that the platform containers at issue in this case are not “specially
designed and equipped for carriage by one or more modes of transport.” 8609.00.00,
HTSUS. Accordingly, the Court finds that this case hinges entirely on the meaning of
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the term “container,” and whether that term includes the platform containers imported
by PNW Equipment in this case.
When a term is not defined in the HTSUS, its meaning “is presumed to be the
same as its common or dictionary meaning.” Brookside Veneers, Ltd. v. United States,
847 F.2d 786, 789 (Fed. Cir. 1988) (quotation and citation omitted); see also E.M. Chems.
v. United States, 920 F.2d 910, 913 (Fed Cir. 1990) (“tariff terms are to be construed in
accordance with their common and popular meaning, in the absence of a contrary
legislative intent.”). The common meaning of a term used in commerce is presumed to
be the same as its commercial meaning. Simod Am. Corp. v. United States, 872 F.2d
1572, 1576 (Fed. Cir. 1989). The Court may determine the common meaning of a term
by relying upon its “own understanding, dictionaries and other reliable sources.” Boen
Hardwood Flooring, Inc. v. United States, 357 F.3d 1262, 1264 (Fed. Cir. 2004) (quoting
Medline Indus., Inc. v. United States, 62 F.3d 1407, 1409 (Fed. Cir. 1995.))
The dictionary definition of the term “container” is expansive enough to include
platform containers. A container is simply “one that contains,” and to contain means
“to keep within limits: hold back or hold down.” Webster’s Third New International
Dictionary 490‐91 (1986). It is evident that a platform container is used to keep various
objects within limits, by holding down such objects during intermodal transport. The
dictionary definition of container identifies as exemplars, “a receptacle (as a box or jar)
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or formed or flexible covering for the packing or shipment of articles, goods, or
commodities,” and “a portable usu[ally] metal compartment in which freight is placed
for convenience of movement esp[ecially] on railroad container cars.” Id. at 491.
However, these exemplars do not require a “container” to be anything more than
simply “one that contains.” Cf. E.M. Chemicals, 920 F.2d at 913 (stating that “[t]he
terms ‘indicator panels’ or ‘signalling devices’ simply denote objects that ‘indicate’ or
‘signal,’” and rejecting a limitation of the broadest meaning of these terms absent a
showing of Congressional intent to do so.) Accordingly, the Court holds that the
appropriate tariff classification of platform containers is HTSUS subheading 8609.00.00,
“Containers (including containers for the transport of fluids) specially designed and
equipped for carriage by one or more modes of transport.”
The Court rejects Defendant’s proffered definition of the term “container,”
because it elevates the term’s connotation over its denotation. Cobbling together
various definitions and exemplars, Defendant proposes that a container is “a receptacle
into which goods can be held and contained within physical limits.” (Def.’s MSJ 10.) A
word’s connotation is “something implied or suggested by [that] word,” while its
denotation is its “meaning,” especially the “direct specific meaning as distinct from
additional suggestion.” See Webster’s Third New International Dictionary 481, 692.
While the term “container” is frequently used to connote an enclosed compartment in
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ordinary parlance, the dictionary definition of a container is not so restrictive.
Similarly, Defendant would also have the Court assign unduly restrictive
meaning to prepositions such as “in” and “within.” Defendant claims that platform
containers “cannot hold anything within their limits,” because they “have no walls
(sides), overhead (top), or doors (ends).” (Def.’s MSJ at 10 (emphasis added).) This
assertion restricts the meaning of the preposition “within,” and ignores many uses it
can bear; an enclosed three dimensional space is not a prerequisite for the appropriate
use of the term. For example, soccer players stay “within” the boundaries of the field,
and as such are “contained” by the field, no matter that the field is essentially planar.
Or, more abstractly, an ideology may be said to “contain within” it a particular belief.
To suggest that only enclosed compartments are capable of “containing within” is
plainly inaccurate.
B. Platform Containers are Consistent With Explanatory Note 86.09
While the dictionary meaning of the term “container” makes clear that platform
containers should be classified in heading 8609, the Explanatory Note (“EN”) for this
heading further confirms this result. “[A] court may refer to the Explanatory Notes of a
tariff subheading, which do not constitute controlling legislative history but nonetheless
are intended to clarify the scope of HTSUS subheadings and to offer guidance in
interpreting subheadings.” Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed.
Court No. 07‐00184 Page 9
Cir. 1994). In its entirety, the Explanatory Note reads:
86.09 ‐ Containers (including containers for the transport of fluids)
specially designed and equipped for carriage by one or more
modes of transport.
These containers (including lift vans) are packing receptacles specially
designed and equipped for carriage by one or more modes of transport (e.g.,
road, rail, water or air). They are equipped with fittings (hooks, rings,
castors, supports, etc.) to facilitate handling and securing on the transporting
vehicle, aircraft or vessel. They are thus suitable for the “door‐to‐door”
transport of goods without intermediate repacking and, being of robust
construction, are intended to be used repeatedly.
The more usual type, which may be of wood or metal, consists of a large box
equipped with doors, or with removable sides.
The principal types of container include :
(1) Furniture removal containers
(2) Insulated containers for perishable foods or goods
(3) Containers (generally cylindrical) for the transport of liquids or gases.
These containers fall in this heading only if they incorporate a support
enabling them to be fitted to any type of transporting vehicle or
vessel; otherwise they are classified according to their constituent
material.
(4) Open containers for bulk transport of coal, ores, paving blocks, bricks,
tiles, etc. These often have hinged bottoms or sides to facilitate
unloading.
(5) Special types for particular goods, especially for fragile goods such as
glassware, ceramics, etc., or for live animals.
Containers usually vary in size from 4 to 145m3 capacity. Certain types are
however smaller, but their capacity is not normally less than 1 m3.
The heading excludes :
(a) Cases, crates, etc., which though designed for the “door‐to‐door” transport of goods
are not specially constructed as described above to be secured to the transporting
Court No. 07‐00184 Page 10
vehicle, aircraft or vessel; these are classified according to their constituent material.
(b) Road‐rail trailers (intended mainly for use as road trailers, but so designed that they
may be transported on special railway wagons fitted with guide rails) (heading
87.16).
Explanatory Note 86.09 (4th edition 2007) (emphases in original).
Defendant’s arguments that EN 86.09 is exclusive of platform containers are
unpersuasive. First, Defendant claims this EN requires containers to have a
“measurable . . . cubic capacity,” which, according to Defendant, refers to “the amount
of volume which a container encloses[, and] is determined by multiplying length times
width times depth.” (Def.’s MSJ at 12‐13.) Relying on this definition of cubic capacity,
Defendant maintains that platform containers “do not, and cannot ever, have any cubic
carrying capacity,” because they lack “walls (sides), overhead (top), [and] doors
(ends).” (Id. at 13.) However, contrary to Defendant’s assertions, EN 86.09 contains no
explicit requirement that containers have a “measurable cubic capacity.” See EN 86.09.
Even assuming that the description of the typical magnitude of container
capacity in EN 86.09 creates an implicit requirement of measurable cubic capacity,
Defendant does not make a convincing case that platform containers lack this feature.
Once again, Defendant’s positioned is undermined by proffering too narrow a
definition of the relevant terminology. As a shipping device useful for the
transportation of three‐dimensional objects, platform containers necessarily have a
measurable capacity, which could be stated in cubic meters, cubic inches or any other
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form of cubic measurement. That is to say, even if not easily calculable through
elementary arithmetic formulas (such as length times width times height), a platform
container’s capacity is limited, whether by safety regulation, space available on the
transporting vehicle, or the laws of physics.4 Moreover, containers in the form of a
“large box” with doors or sides, which do lend themselves to the type of volume
calculation described by Defendant, are characterized in this EN only as “the more
usual type,” leaving ample space within this EN for a container without sides or doors.
See id.
Finally, Defendant’s belief that the term “receptacle” in EN 86.09 excludes
platform containers is similarly misguided. Receptacle, meaning “one that receives and
contains something,” is synonymous with container, and does not necessarily signify an
enclosed compartment in the way Defendant advocates. Compare Webster’s Third
New International Dictionary 1894, with (Def.’s MSJ at 13) (asserting without dictionary
citation that “receptacles by definition have sides, walls, or other physical features to
enclose cargo.”)
C. All of Defendant’s Other Arguments are Unpersuasive
The Court finds that the internal advice memorandum issued to the area port
4
This is supported by the testimony of two of Plaintiff’s witnesses who stated
that platform containers are considered to have a “measurable volume capacity.” (Pl.’s
MSJ 24.)
Court No. 07‐00184 Page 12
director at the request of PNW Equipment lacks any power to persuade, and
accordingly does not warrant deference. A classification ruling’s power to persuade
“depends on the thoroughness evident in the classification ruling, the validity of its
reasoning, its consistency with earlier and later pronouncements, the formality
attendant the particular ruling, and all those factors that give it power to persuade.”
Mead Corp. v. United States, 283 F.3d 1342, 1346 (Fed. Cir. 2002) (citing United States v.
Mead Corp., 533 U.S. 218, 219‐20 (2001); Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944).)
HQ 967571 is facially unpersuasive because in it, CBP relies on the mistaken
notion that the essential feature of containers classifiable under heading 8609 is “some
kind of sides or door.” See HQ 967571 at 4 (asserting that “some kind of wall” is
necessary for a shipping device to be classified in heading 8609, and finding that
because platform containers have “no walls or doors,” they “cannot be considered to
hold a measurable volume.”). As explained above, this is simply not true. While it may
be easier to calculate the maximum carrying capacity of a box‐like container using
simple arithmetic formulas, a platform container also necessarily has a measurable
carrying capacity. Moreover, the dictionary definition of container does not require that
it have sides, walls, or doors, and EN 86.09 does not demand that containers be so
constituted. To the contrary, according to heading 8609, the only essential feature of
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containers classifiable thereunder is being “specially designed and equipped for
carriage by one or more modes of transport,” which is undisputed in this action. See
8609.00.00, HTSUS; see also EN 86.09 (specifying that whether “cases and crates” or
“containers for the shipment of liquids and gasses,” are here classifiable depends on
whether they have been specially designed for intermodal transport).
Additionally, the Court finds that the definition of container found in the
Customs Convention on Containers, Dec. 6, 1975, T.I.A.S. No. 12,085, 988 U.N.T.S. 43
(“CCC”) (cited by Defendant), includes language that is absent from the HTSUS and EN
86.09, reinforcing the Court’s conclusion in this case. As used in the CCC, the term
“container” means ”an article of transport equipment . . . (i) fully or partially enclosed
to constitute a compartment intended for containing goods.” (Def.’s MSJ 14 (quoting
1994 Edition of CCC) (emphasis added by Defendant).) While this phrase is found in
other international treaties, such as the Customs Convention on the International Road
Transport of Goods under Cover of TIR Carnets, Mar. 20, 1978, KAV 2251, 1079
U.N.T.S. 89, the Court finds that the absence of those eight words—“fully or partially
enclosed to constitute a compartment”—in both HTSUS heading 8609 and EN 86.09 is
both conspicuous and consequential. In fact, the definition of container in the
Convention on Safe Containers, Sep. 6, 1977, 29 U.S.T. 3707, 1064 U.N.T.S. 3 (“CSC”),
cited by Plaintiff, which does not include the requirement of an enclosed compartment,
Court No. 07‐00184 Page 14
has more in common with EN 86.09 than does the definition in the CCC.5
By virtue of General Rule of Interpretation (“GRI”) 1 and the pertinent section
notes, because platform containers are classifiable under heading 8609, they are not
classifiable under heading 7326. GRI 1 of the HTSUS states that “classification shall be
determined according to the terms of the headings and any relative section or chapter
notes.” GRI 1, HTSUS. According to HTSUS Section Note 1(g) of Section XV, that
5
CSC, Art. II, ¶ 1 (cited by Plaintiff): CCC, Art. 1(c) (cited by Defendant):
“Container” means an article of transport (c) the term ʺcontainerʺ shall mean an article of transport
equipment: equipment (lift‐van, movable tank or other similar
structure) :
(a) of a permanent character and accordingly
strong enough to be suitable for repeated (i) fully or partially enclosed to constitute a compartment
use; intended for containing goods;
(b) specially designed to facilitate the (ii) of a permanent character and accordingly strong enough
transport of goods, by one or more modes of to be suitable for repeated use;
transport, without intermediate reloading;
(iii) specially designed to facilitate the carriage of goods, by
(c) designed to be secured and/or readily one or more modes of transport, without intermediate
handled, having corner fittings for these reloading;
purposes;
(iv) designed for ready handling, particularly when being
(d) of a size such that the area enclosed by transferred from one mode of transport to another;
the four outer bottom corners is either:
(v) designed to be easy to fill and to empty; and
(i) at least 14 sq. m. (150 sq. ft.) or
(vi) having an internal volume of one cubic metre or more;
(ii) at least 7 sq. m. (75 sq. ft.) if it is fitted
with top corner fittings; the term ʺcontainerʺ shall include the accessories and
equipment of the container, appropriate for the type
the term ʺcontainerʺ includes neither vehicles concerned, provided that such accessories and equipment
nor packaging; however, containers when are carried with the container. The term ʺcontainerʺ shall
carried on chassis are included. not include vehicles, accessories or spare parts of vehicles,
or packaging. Demountable bodies, are to be treated as
containers[.]
Court No. 07‐00184 Page 15
section “does not cover . . . articles of Section XVII.” In other words, if a good is
properly classifiable under Section XVII, it may not be classified in Section XV by virtue
of this section note. Therefore, because heading 8609 is located within section XVII, and
because heading 7326 is located within section XV, the analysis of the appropriate tariff
classification for platform containers is resolved through the application of GRI 1, and
does not require resorting to any subsequent GRI.
CONCLUSION
For the foregoing reasons, the Court holds that platform containers are properly
classifiable under subheading 8609.00.00, HTSUS. Plaintiff’s motion for summary
judgment is therefore granted and Defendant’s cross‐motion for summary judgment is
denied. Judgment will enter accordingly.
/s/ Gregory W. Carman
Gregory W. Carman
Dated: June 15, 2010
New York, NY