Franklin v. United States

Slip Op. 01-32

United States Court of International Trade

ARTHUR L. FRANKLIN d/b/a
HEALTH TECHNOLOGIES NETWORK,
BEFORE: Pogue, Judge
Plaintiff,
Court No. 99-05-00283
v.

UNITED STATES,

Defendant.

[Plaintiff’s motion for summary judgment denied. Defendant’s
motion for summary judgment granted. Judgment entered for
Defendant.]

Decided: March 28, 2001

Vandeventer Black LLP (Mark T. Coberly), for Plaintiff.

Stuart E. Shiffer, Acting Assistant Attorney General, Joseph I.
Liebman, Attorney in Charge, International Trade Field Office,
Aimee Lee, Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice; Beth C. Brotman, Office of Assistant
Chief Counsel, International Trade Litigation, U.S. Customs
Service, Of Counsel, for Defendant.

OPINION

Pogue, Judge: Plaintiff, Arthur L. Franklin d/b/a/ Health

Technologies Network ("Arthur Franklin"), challenges a decision of

the United States Customs Service ("Customs") denying Arthur

Franklin’s protests filed in accordance with section 514 of the

Tariff Act of 1930, as amended, 19 U.S.C. § 1514 (1994). At issue

is the proper tariff classification under 19 U.S.C. § 1202,

Harmonized Tariff Schedule of the United States ("HTSUS"), of

Arthur Franklin’s imports of coral sand packets marketed under the
Court No. 99-05-00283 Page 2

names "Ericssons Alka-Mine Coral Calcium" and "Alka-Line Coral

Calcium," and identified as, respectively, "GRANULES OF NATURAL

CORAL, Additive for Healthy Water," see Def.’s Ex. D, and "NATURAL

MINERAL FOOD SUPPLEMENT, Additive for Healthy Water," see Def.’s

Ex. J.

Arthur Franklin claims that the subject merchandise is

classifiable under subheading 8421.21.00, HTSUS, covering

"Filtering or purifying machinery and apparatus for liquids: For

filtering or purifying water." Goods classifiable under subheading

8421.21.00 were subject to duty rates of 3.1% (1995), 2.3% (1996)

and 1.6% (1997), ad valorem, for the years in which the subject

merchandise was entered at the port of Norfolk, Virginia.

Alternatively, Arthur Franklin claims classification under

subheading 0508.00.00, HTSUS, as "Coral and similar materials,

unworked or simply prepared but not otherwise worked . . . ."

Goods classifiable under 0508.00.00 were allowed to be entered duty

free from 1995 to 1997.1

Customs classified the merchandise under a residual or

"basket" provision, subheading 2106.90.99, HTSUS, covering "Food

preparations not elsewhere specified or included: Other . . . ."

Goods classifiable under subheading 2106.90.99 were subject to duty

1
In the Complaint, Arthur Franklin also maintained that
classification is proper under subheading 2509.00.20, HTSUS, as
"Chalk: Other," which carried a rate of duty of 1.1% (1995), 0.8%
(1996), and 0.6% (1997). See Complaint at ¶ 20. In a subsequent
filing, however, Arthur Franklin conceded that the merchandise is
not properly classifiable under this subheading. See Pl.’s Mem.
Opp. Def.’s Mot. Summ. J. ("Pl.’s Mem.") at 13.
Court No. 99-05-00283 Page 3

rates of 9.4% (1995), 8.8% (1996) and 8.2% (1997), ad valorem.

Arthur Franklin protested Customs’ classification and, in response,

Customs issued Headquarters Ruling 962059 (Oct. 21, 1998). Arthur

Franklin asks the Court to overturn Customs’ Ruling and classify

its merchandise under subheading 8421.21.00, or, in the

alternative, subheading 0508.00.00.

Standard of Review

Jurisdiction is predicated on 28 U.S.C. § 1581(a); therefore,

Customs’ classification is subject to de novo review pursuant to 28

U.S.C. § 2640. Following the Federal Circuit’s holding in Mead

Corp. v. United States, 185 F.3d 1304, 1306-07 (Fed. Cir. 1999),

cert. granted, 120 S.Ct. 2193 (2000), the Court does not afford the

deference articulated in Chevron U.S.A. Inc. v. Natural Resources

Defense Council, 467 U.S. 837, 842-43 (1984), to Customs’ standard

classification rulings. Moreover, although there is a statutory

presumption of correctness that attaches to Customs’ classification

decisions, see 28 U.S.C. § 2639(a)(1), that presumption is not

relevant where the Court is presented with a question of law in a

proper motion for summary judgment, see Universal Elecs. v. United

States, 112 F.3d 488, 492 (Fed. Cir. 1997).

This action is before the Court on summary judgment motions

made by Arthur Franklin and Defendant, the United States, pursuant

to USCIT Rule 56. Summary judgment is appropriate when the

"pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is
Court No. 99-05-00283 Page 4

no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law." USCIT R. 56(c). A

dispute is genuine "if the evidence is such that [the trier of

fact] could return a verdict for the nonmoving party." Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1985).

The court resolves any doubt over material factual issues in

favor of the nonmoving party, and draws all reasonable inferences

in its favor. See Anderson, 477 U.S. at 255; Mingus Constructors,

Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987).

Nevertheless, "[w]hen a motion for summary judgment is made and

supported . . . an adverse party may not rest upon the mere

allegations or denials of the adverse party’s pleading, but . . .

must set forth specific facts showing that there is a genuine issue

for trial." USCIT R. 56(e).

Here, the parties agree that the imported merchandise is coral

sand, to which a small amount of L-ascorbic acid has been added,

and which has been packaged in one gram fiber bags. See Pl.’s

Stmt. Undisputed Material Facts and Addition to Def.’s Stmt.

Undisputed Material Facts at ("Pl.’s Stmt.") ¶¶ 2-4; Def.’s Stmt.

Undisputed Material Facts ("Def.’s Stmt.") at ¶¶ 2-4; Def.’s Resp.

Pl.’s Stmt. ("Def.’s Resp. Stmt.") at ¶ 4. Moreover, the parties

agree that the effect of the merchandise is to increase the

hardness and alkalinity of water, as well as to reduce bacteria and

chlorine present in water.2 See Pl.’s Stmt. at ¶¶ 7-11; Def.’s

2
Summary judgment of a classification issue is appropriate
"when there is no genuine dispute as to the underlying factual
Court No. 99-05-00283 Page 5

Stmt. at ¶¶ 7-11; Def.’s Resp. Stmt. at ¶¶ 7-11. Although the

parties disagree as to the "principal use" of the merchandise,

see Pl.’s Mem. at 12, Def.’s Mem. Supp. Mot. Summ. J. ("Def.’s

Mem.") at 5, Pl.’s Reply Mem. Supp. Pl.’s Mot. Summ. J. ("Pl.’s

Reply") at 5, Arthur Franklin has failed to set forth specific

facts showing that this is a genuine issue for trial. See

discussion infra Part I. Summary judgment is therefore

appropriate.

The Court’s analysis of a Customs classification issue

proceeds in two steps: "first, [it] construe[s] the relevant

classification headings; and second, [it] determine[s] under which

of the properly construed tariff terms the merchandise at issue

falls." Bausch & Lomb, 148 F.3d at 1365 (citing Universal

Electronics, 112 F.3d at 491). While the first step is a question

of law and the second step is a question of fact, see Orlando Food

Corp. v. United States, 140 F.3d 1437, 1439 (Fed. Cir. 1998),

whether the imported merchandise is properly classified is

ultimately a question of law. See Bausch & Lomb, 148 F. 3d at

1365.

The Parties’ Positions

Arthur Franklin argues that the imported merchandise is an

apparatus for filtering or purifying liquids, and therefore

classifiable under subheading 8421.21.00. See Pl.’s Mem. at 8-12.

issue of exactly what the merchandise is." Bausch & Lomb v.
United States, 148 F.3d 1363, 1365 (Fed. Cir. 1998).
Court No. 99-05-00283 Page 6

Upon placing the merchandise in a specified amount of water, the

calcium carbonate in the coral increases the hardness (i.e., the

amount of calcium carbonate), and thereby raises the alkalinity

(i.e., the pH level) of the water. See id. at 9. The increase in

alkalinity has the effect of killing bacteria present in the water.

See id. Further, L-ascorbic acid, which is added to the coral

sand, reacts with and neutralizes chlorine in the water. See id.

at 2. Alternatively, Arthur Franklin claims that the addition of

L-ascorbic acid does not take the merchandise outside of subheading

0508.00.00, which covers "unworked" or "simply prepared" coral.

See id. at 12-13.

The United States responds that the merchandise adds rather

than removes elements from water; as such, the merchandise does not

function as a device for filtering or purifying for classification

purposes. See Def.’s Mem. at 5. In any event, argues the United

States, "the primary purpose of the imported substance is to

increase the mineral content (hardness) and alkalinity (pH) of

water through the addition of elements, and not to purify water."

Id. Furthermore, the United States asserts that the merchandise is

not classifiable under subheading 0508.00.00 because of the

addition of L-ascorbic acid, and because the Chapter Notes preclude

classification under chapter 0508 of goods that are ingested. See

id. at 5-6. From its contention that the merchandise is similar to

other products classified under subheading 2160.90.00, the United

States concludes that Customs’ classification of the merchandise as

"other" food preparations under the basket provision of subheading
Court No. 99-05-00283 Page 7

2106.90.99 was correct. See id. at 4-5.

Discussion

Orlando Foods requires us first "to determine whether the

product at issue is classifiable under the heading."3 Orlando

Foods, 140 F.3d at 1440. If the merchandise is classifiable under

more than one heading, "The heading which provides the most

specific description shall be preferred to headings providing a

more general description." GRI 3(a), HTSUS; see also Orlando

Foods, 140 F.3d at 1440. The precise issue before the Court, then,

is whether the subject merchandise is properly classified under any

of the headings suggested by the parties. Because we find that the

merchandise is classifiable under only one of the suggested

headings, there is no relative specificity issue.

3
General Rule of Interpretation ("GRI") 1 for the HTSUS
provides that, "for legal purposes, classification shall be
determined according to the terms of the headings and any
relative section or chapter notes . . . ." GRI 1, HTSUS. See
also Harmonized Commodity Description and Coding System,
Explanatory Notes (2nd ed. 1996)("Explanatory Notes"), at GR 1(V)
("[T]he terms of the headings and any relative Section or Chapter
Notes are paramount, i.e., they are the first consideration in
determining classification.").
The Explanatory Notes "provide a commentary on the scope of
each heading of the Harmonized [Tariff] System and are thus
useful in ascertaining the classification of merchandise under
the system." H.R. Conf. Rep. No. 100-576, at 549 (1988),
reprinted in 1988 U.S.C.C.A.N. 1547, 1582. It has long been
settled that, "[w]hile the Explanatory Notes do not constitute
controlling legislative history, they do offer guidance in
interpreting HTS[US] subheadings." Lonza, Inc. v. United States,
46 F.3d 1098, 1109 (Fed. Cir. 1995).
Court No. 99-05-00283 Page 8

I. Whether the subject merchandise is a filtering or purifying
device

This court has previously construed the tariff terms "filter"

and "purify." In Noss Co. v. United States, 7 CIT 111, 588 F.

Supp. 1408 (1984), aff’d 753 F.2d 1052 (Fed. Cir. 1985), the court

cited several lexicographic definitions of "purify" in analyzing

heading 661, TSUS, which was replaced without any relevant change

by heading 8421 in the HTSUS:

[T]o make pure: as to clear from material defilement
or imperfection; free from impurities or noxious matter
* * *. Webster’s Third New International Dictionary
(1981).
To free from admixture with foreign or vitiating
elements; make clear or pure * * *. Funk & Wagnalls New
Standard Dictionary of the English Language (1941)
[T]o remove unwanted constituents from a substance.
McGraw-Hill Dictionary of Scientific and Technical Terms
(2d ed. 1978).

Noss, 7 CIT at 115-16, 588 F. Supp. at 1412. The court noted that

"purify" and "filter" may be used synonymously. Id. at 116, n.4,

588 F. Supp. at 1412, n.4. In Deringer v. United States, 10 CIT

798, 800, 656 F. Supp. 670, 671-72 (1986), aff’d 832 F.2d 592 (Fed.

Cir. 1987), the court adopted the Noss court’s definitions, and we

follow suit here.

Given this construal of the terms "filter" and "purify," the

merchandise purifies insofar as the addition of hardness4 raises

4
Of course, "hardness" is itself considered an impurity in
water; the Explanatory Notes to heading 8421 provide specifically
for water softeners. See Explanatory Notes at 84.21(II)(A)
("Filtering and purifying machinery, etc., for liquids, including
water softeners."). This notwithstanding, Arthur Franklin
asserts that the merchandise is similar to the chemical water
purifiers provided for in the Explanatory Notes, which include
permutite or zeolite softeners. See Pl.’s Mem. at 5-7, 9-10;
Court No. 99-05-00283 Page 9

the alkalinity level of water, and thereby reduces bacteria, and

insofar as the L-ascorbic acid neutralizes chlorine. Bacteria and

chlorine are recognized as impurities when present in water. See

HQ 953683 (Apr. 5, 1993)(classifying water treatment units under

heading 8421, in part, because the units inhibit bacteria growth

and remove chlorine odor in water); see also 19 McGraw Hill

Encyclopedia of Science and Technology 387 (8th ed. 1997)(defining

"water treatment" as "[p]hysical and chemical processes for making

water suitable for human consumption and other purposes. Drinking

water must be bacteriologically safe, free from toxic or harmful

chemical [sic] or substances, and comparatively free of turbidity,

color, and taste-producing substances.").5

Explanatory Notes at 84.21(II)(A)(8). Even if the merchandise
works by chemical reaction, however, "chemical water purifiers,"
just as all other kinds of purifiers, must be chiefly used to
purify to be classifiable under heading 8421. The subject
merchandise is not chiefly used to purify. See discussion infra.
5
Arthur Franklin points out that heading 8421 has been
construed to include devices that "treat" water. See Pl.’s Mem.
at 5-8, 10-11. The term "treatment," however, has been used in a
way consistent with the definitions of "purify" and "filter"
given above. See NY 889108 (Sept. 2, 1993)(classifying water
treatment units under 8421.21.00 because "[t]he systems are based
on treating water with ozone to remove impurities and deionize
it"). In some of these rulings, "treatment" has been used to
describe a process that neither adds nor removes elements from
the water, yet effectively deals with an impurity in the water.
See NY A84906 (June 28, 1996)(classifying water treatment unit
that used magnets to control hard water deposits under subheading
8421.21.00); NY 894074 (Feb. 7, 1994)(same). Thus, while Arthur
Franklin may urge a broader interpretation of the terms "purify"
and "filter" than that forwarded by the United States, which
focuses on the physical removal of impure elements, Arthur
Franklin may not argue that use of the word "treatment" expands
the scope of the heading beyond its terms, which specify devices
that "filter" or "purify." See GRI 1.
Court No. 99-05-00283 Page 10

Insofar as the addition of hardness raises the alkalinity

level of water, and thereby benefits the health of the consumer in

ways other than those associated with the reduction of bacteria,

however, the merchandise does not purify or filter in the sense

required under heading 8421. Rather, the merchandise has more than

one use, in that it partly serves to purify water and partly serves

to make water otherwise "healthier" for the consumer. Arthur

Franklin’s marketing materials emphasize that water of a higher

alkalinity may bring health benefits to the user, because the human

diet generally tends to produce a sub-optimal acidity level in the

body. See Def.’s Ex. E (claiming, for example, that "[c]oral

calcium turns water alkaline for healthy pH balance in the body").

Notwithstanding these claims, there is no evidence to indicate that

the pH level of "good" water6 is an "imperfection," or in any other

way an "unwanted constituent" of the water itself, in the same way

that bacteria or chlorine is.

Heading 8421 is a "use" provision, which, under the HTSUS,

means "principal use." See Deringer, 10 CIT at 801, 656 F. Supp.

at 672; Pharmacia Fine Chemicals, Inc. v. United States, 9 CIT 438,

439 (1985)(citing Noss, 7 CIT at 116, 588 F. Supp. at 1412); see

also Additional U.S. Rule of Interpretation 1(a) ("[A] tariff

classification controlled by use . . . is to be determined in

accordance with the use in the United States at, or immediately

6
Since the instructions specify "good" water, and suggest
the use of bottled or distilled water, this merchandise is
apparently not designed to remedy overly acidic water. See
Def.’s Ex. J.
Court No. 99-05-00283 Page 11

prior to, the date of importation . . . and the controlling use is

the principal use."). In short, the merchandise must be "chiefly

used" to filter or purify in order to be classified under heading

8421. Pharmacia, 9 CIT at 439. Plaintiff has provided no evidence

from which an inference could be drawn that the chief use of the

subject merchandise is to purify.

In this case, the marketing materials presented as exhibits to

the record, and cited extensively by both parties, defy Arthur

Franklin’s bald assertion that the chief use of the merchandise is

to purify.7 See Pl.’s Mem. at 5; Pl.’s Reply at 5. Rather, the

marketing materials place primary emphasis on the ability of the

merchandise to benefit the general health of the consumer in ways

unrelated to the specific ability of the merchandise to purify.8

See, e.g., Def.’s Ex. E (emphasizing positive effects of

merchandise on longevity and general health, claiming "Never has a

natural product done more for your health!"; the headline on page

2 of the exhibit reads "Attention Your Health is at Stake!");

7
"It is well established in customs law that although
descriptions contained in service manuals and marketing
literature ‘are not conclusive, they are relevant evidence of
industry usage, particularly when they contradict the plaintiff’s
present position in [the] litigation.’" Lloyds Elecs., Inc. v.
United States, 15 CIT 164, 168 (1991)(citing NEC America, Inc. v.
United States, 8 CIT 184, 190, 596 F. Supp. 466, 471 (1984),
aff’d, 760 F.2d 1295 (Fed. Cir. 1985))(brackets in original).
8
Arthur Franklin argues that "the health benefits claimed
are only the benefits one gets from drinking purified water in
which acidity and chlorine have been reduced." Pl.’s Reply at 4.
Drinking purified water does contribute to good health, but, as
explained above, "reducing acidity" is not purification for
classification purposes.
Court No. 99-05-00283 Page 12

Def.’s Ex. J (label on packaging indicates product is a "Natural

Mineral Food Supplement: Additive For Healthy Water").

The marketing materials do use the words "purify" and "filter"

in various forms. The descriptions of the merchandise’s ability to

"filter" and "purify" are, however, vague, and in any event do not

comport with Arthur Franklin’s argument in this litigation that the

merchandise "purifies" because it reduces the presence of bacteria.

See Pl.’s Reply at 1-2. In one piece of marketing literature,

called "The Coral Calcium Story," the merchandise is alleged to

have a "unique purification quality" and to "allow[] spontaneous

filtration of the liquid," yet nowhere is the reduction of bacteria

discussed.9 Def.’s Ex. E. In a second piece of marketing

literature, it is maintained that "a filtering and purifying

process . . . assists the body in developing and maintaining a

proper pH balance." Id. It is, however, the increase in

alkalinity per se, not the killing of bacteria resulting from the

increase in alkalinity, that would affect the body’s pH level.10

9
Interestingly, the only reference to bacteria is in the
material describing Alka-Line Coral Calcium Gold, merchandise not
at issue here, which "contains minute traces of silver bonded to
the coral granules helping to eliminate bad bacteria." Def.’s
Ex. E.
10
It is also asserted that the merchandise "purif[ies] the
water just as it does [sic] in cleaning up the toxins from the
ocean," and later that, "[t]he purified liquid becomes a proper
environment for the body to process nutrients and dispose of
toxins, free radicals and other waste products." See Def.’s Ex.
E. To the extent this suggests that the merchandise purifies by
removing toxins other than bacteria and chlorine from the water,
such a claim is simply not supported by the laboratory reports
stipulated to by the parties. See Def.’s Ex. G, H. To the
extent that it is suggested that the "purified" water helps the
Court No. 99-05-00283 Page 13

The marketing materials do make plain that one purpose of the

merchandise is to reduce chlorine in water. Id. And, as noted

above, the merchandise in fact purifies in that it kills bacteria.

This evidence notwithstanding, Arthur Franklin has failed to set

forth specific facts showing that the principal use of the

merchandise is a genuine issue for trial. Plaintiff lays no

factual basis from which we could draw a reasonable inference in

opposition to the conclusion that the principal use of the imported

merchandise is to function as a health supplement, rather than as

a water purifier, as that term is understood for classification

purposes. The emphasis given in the marketing materials to general

health claims negates Arthur Franklin’s claim in litigation that

the merchandise is chiefly used to purify. Consequently, the

merchandise is not properly classifiable under heading 8421.

II. Whether the subject merchandise is "unworked" or "simply
prepared" coral

Arthur Franklin claims that the merchandise may alternatively

be classified under heading 0508, which covers "Coral and similar

materials, unworked or simply prepared but not otherwise worked .

. . ." The Explanatory Notes indicate that "unworked" coral is

coral "from which only the outer crust has been removed."

Explanatory Notes at 05.08(1). "Simply prepared" coral is coral

"not having undergone processes extending beyond simple cutting."

body flush out toxins, these claims have to do with general
health rather than with effect of the merchandise on the water.
Court No. 99-05-00283 Page 14

Id. at 05.08(2).

It appears from the record that the merchandise is mined as

sand, rather than mined as pieces of coral that are later ground

into sand.11 See Pl.’s Interrogatory Answers 6(a)(b); Pl.’s Mem.

at 1. Assuming it is mined as sand, we agree with the United

States that the addition of L-ascorbic acid takes the subject

merchandise outside the scope of "simply prepared" coral.12 In

Headquarters Ruling 223538, the "calcium sand" was found to be

"simply prepared" because the preparation process involved only

grading and treatment with chemicals to kill bacteria present on

the coral and shells. See HQ 223538 (Oct. 1, 1992). Rather than

merely eliminating impurities present on the coral, the L-ascorbic

acid adds an additional feature to the finished product, insofar as

the merchandise functions to remove chlorine from water -- a

function not performed by coral sand acting alone. The "simple

cutting" proposed by the Explanatory Notes as the limit of what may

11
The record is somewhat unclear on this point. In its
memorandum, the merchandise is described as "ground (dead) coral,
commonly referred to as coral sand." Pl.’s Mem. at 1. In
Interrogatory Answer 6(a)(b), which describes the production
process of the merchandise, Arthur Franklin refers only to
"coral." See Pl.’s Interrogatory Answer 6(a)(b). There is,
however, no reference in 6(a)(b) to any industrial grinding
process. See id. The United States notes that "the product here
is of a powder consistency, suggesting more processing of the
original coral," Def.’s Opp. Pl.’s Cross-Mot. Summ. J. at 16;
such additional processing, however, cannot be confirmed on this
record. The lack of clarity on this factual point does not
preclude summary judgment because, as the analysis will show,
heading 0508 does not apply in any case.
12
The merchandise cannot be considered "unworked" because
some degree of processing or preparation is admitted. See Pl.’s
Interrogatory Answer 6(a)(b).
Court No. 99-05-00283 Page 15

be considered "simply prepared" coral would not, under any common

sense view, stretch to include a process that augments the natural

capabilities of the coral.

Assuming, on the other hand, that the merchandise is mined as

pieces of coral that are subsequently ground into sand using an

industrial process, the merchandise could not be called "simply

prepared." "Simple cutting" has been used to refer to wire cut to

size for use in a particular application, see Samsonite Corp. v.

United States, 12 CIT 1146, 1148, 702 F. Supp. 908, 910 (1988),

aff’d 889 F.2d 1074 (Fed. Cir. 1989)(citing General Instrument

Corp. v. United States, 462 F.2d 1156 (CCPA 1972)). Grinding of

the coral would clearly entail more processing than mere cutting to

size, or than the "grading" referred to in Headquarters Ruling

223538 that separated out a certain size of particle for use as

"calcium sand," but involved no cutting or grinding. See HQ 223538

(Oct. 1, 1992); see also 6 Oxford English Dictionary 846 (2d ed.

1989)(defining "grind" as, "[t]o reduce to small particles or

powder by crushing * * * "); 4 Oxford English Dictionary 172

(defining "cut" as, "[t]o divide into two or more parts * * * ").

Thus, under either factual scenario, the merchandise is not

classifiable under heading 0508.

III. Whether Customs correctly classified the subject merchandise
under heading 2106 as "other" food preparations

The tariff term "preparation" was construed in Nestle

Refrigerated Food Co. v. United States, 18 CIT 661 (1994):

The term "preparation" has been defined as "something
Court No. 99-05-00283 Page 16

that is prepared: something made, equipped, or compounded
for a specific purpose * * *." Webster’s Third New
International Dictionary 1790 (unabridged 1993) . . . .
The Oxford English Dictionary defines "preparation" as a
"substance specially prepared, or made up for its
appropriate use or application, e.g. as food or medicine
* * *." 12 Oxford English Dictionary 374 (1989). And in
United States v. P. John Hanrahan, Inc., 45 CCPA 120,
C.A.D. 684 (1958), the court elaborated upon what
constitutes a "preparation" in its analysis of the tariff
term "edible preparation." The Hanrahan court stated
that "where the imported merchandise is a distinct and
recognized article of commerce, having an individual
name, and which is produced from a raw material by a
definite series of steps, said merchandise is a
preparation." Id. at 122.

Nestle Refrigerated Food, 18 CIT at 673-74.

The subject merchandise falls squarely within the definition

of "preparation." The raw material of coral sand is processed by

a definite series of steps, including washing, drying, treating

with L-ascorbic acid, and packaging in one gram fiber bags;

further, the merchandise is specifically made to treat drinking

water. See Pl.’s Interrogatory Answers 6(a)(b); Pl.’s St. at ¶ 6;

Def.’s St. at ¶ 6. Moreover, because the merchandise adds to and

affects the properties of water that is ultimately consumed, it may

properly be considered a "food preparation." See 6 Oxford English

Dictionary 8 ("food" is that which "is taken into the system to

maintain life and growth, and to supply the waste of tissue * * *

"). Finally, Explanatory Note 21.06(A) makes clear that the

heading covers all "[p]reparations for use, either directly or

after processing (such as cooking, dissolving or boiling in water,

milk, etc.), for human consumption." Explanatory Notes at

21.06(A). In this case, water is consumed after the merchandise is
Court No. 99-05-00283 Page 17

allowed to steep in the water, a process that is similar to the

dissolving process specified in the Explanatory Note. Thus, both

the terms of the heading and the Explanatory Notes support our

conclusion that the merchandise is classifiable under heading

2106.13

13
As further support for its argument that classification
under heading 2106 is proper, the United States points to
Explanatory Note 21.06(14). This Explanatory Note provides for
the inclusion of:

Products consisting of a mixture of plants or parts of
plants . . . which are not consumed as such, but which
are of a kind used for making herbal infusions or herbal
"teas" . . . including products which are claimed to
offer relief from ailments or contribute to general
health and well-being.

Explanatory Notes at 21.06(14). The United States asserts that,
"Like a tea or infusion, the imported substance is placed in
water which results in the addition of certain elements that are
then consumed when the water is drunk." Def.’s Mem. at 7.
We agree that Explanatory Note 21.06(14) may be viewed as
supportive of classification under heading 2106, despite the fact
that coral is not a plant, but an animal. See 3 The New
Encyclopedia Britannica (Micropaedia) 618 (15th ed. 1986)(coral
is "any of a variety of invertebrate marine organisms of the
class Anthozoa (phylum Cnidaria)"). The term "infusion" is not
limited to plant products, and describes the use of the
merchandise at issue. The Oxford English Dictionary defines
"infusion" as, "The process of pouring water over a substance, or
steeping the substance in water, in order to impregnate the
liquid with its properties or virtues." 7 Oxford English
Dictionary 953. It defines "infuse" as, "To steep or drench (a
plant, etc.) in a liquid, so as to extract its soluble properties
* * * To affect or act upon (a liquid) by steeping some soluble
substance in it * * * ." Id.
Here, it is undisputed that the coral sand is somewhat
soluble, with the result that, upon steeping for a specified
amount of time, hardness and alkalinity are added to the water.
See Pl.’s Stmt. at ¶¶ 8-10; Def.’s Stmt. at ¶¶ 8-10; Def.’s Ex.
F, G. Moreover, to the extent that the L-ascorbic acid added to
the coral sand removes or reduces chlorine in the water, the
merchandise may be said to "affect or act upon" the water in this
way as well. See Pl.’s Stmt. at ¶ 11; Def.’s Stmt. at ¶ 11;
Def.’s Ex. H. Thus, the merchandise is accurately described as
Court No. 99-05-00283 Page 18

Within heading 2106, Customs classified the merchandise under

subheading 2106.90.99, a "basket" provision covering "Food

preparations not elsewhere specified or included: Other . . . .".

Classification in a basket provision is only appropriate if there

is no subheading within the heading that covers the merchandise

more specifically. See EM Indus. v. United States, 22 CIT ,

__, 999 F. Supp. 1473, 1480 (1998)("’Basket’ or residual provisions

of HTSUS Headings . . . are intended as a broad catch-all to

encompass the classification of articles for which there is no more

specifically applicable subheading."). A survey of the subheadings

of heading 2106 reveals that there is no other subheading that is

more specific; other subheadings, for example, cover protein

concentrates, dried dairy products, butter substitutes, certain

kinds of syrups, and fruit or vegetable juices. Therefore,

"[a]bsent a more apt subheading," we conclude that Customs

correctly classified the subject merchandise under subheading

2106.90.99. Orlando Foods, 140 F.3d at 1442.

an "infusion." Explanatory Note 21.06(14) may also support
classification under heading 2106 because, as detailed above, the
merchandise claims to contribute to general health. See
discussion infra Part I.
Court No. 99-05-00283 Page 19

Conclusion

For the foregoing reasons, the Court holds that Customs

correctly classified Arthur Franklin’s imported merchandise under

subheading 2106.90.99, HTSUS. Accordingly, Arthur Franklin’s

motion for summary judgment is denied. In turn, the United States’

motion for summary judgment is granted and judgment is entered for

the United States.

Donald C. Pogue
Judge

Dated: March 28, 2001
New York, New York