Slip Op. 12- 152
UNITED STATES COURT OF INTERNATIONAL TRADE
R.T. FOODS, INC.,
Plaintiff,
Before: Gregory W. Carman, Judge
v.
Court No. 09-00455
UNITED STATES,
Defendant.
[Plaintiff’s motion for summary judgment is denied and Defendant’s cross-motion for summary
judgment is granted.]
Peter S. Herrick of Miami, FL, for Plaintiff.
Beverly A. Farrell, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for Defendant. On the briefs
were Stuart F. Delery, Assistant Attorney General, Barbara S. Williams, Attorney in
Charge, International Trade Field Office, United States Department of Justice, and Beth
C. Brotman, Of Counsel, Office of the Assistant Chief Counsel, International Trade
Litigation, United States Customs and Border Protection.
December 14, 2012
OPINION
CARMAN , JUDGE: This matter is before the Court on a Motion for Summary
Judgment by Plaintiff R.T. Foods, Inc. (“Plaintiff” or “R.T. Foods”) and a Cross-Motion
for Summary Judgment by Defendant United States (“Defendant” or “Customs”). The
Court No. 09-00455 Page 2
parties dispute the correct tariff classification of the subject merchandise—frozen
tempura-battered vegetable mixtures from Thailand—imported by Plaintiff. For the
reasons set forth below, Plaintiff’s motion is denied, and Defendant’s cross-motion is
granted.
FACTUAL BACKGROUND
Plaintiff is an importer of the two products at issue: Tempura Vegetables
(“Vegetable Medley”) and Vegetable Bird’s Nests (“Bird’s Nests”) from Thailand. Pl.’s
Statement of Material Facts as to Which No Genuine Issue Exists (“Pl. Facts”) ¶¶ 2–3;
Def.’s Statement of Material Facts as to Which No Genuine Issue Exists (“Def. Facts”)
¶¶ 2–4. This case involves twenty-four entries into the ports of Long Beach, California
and Boston, Massachusetts between October 2007 and August 2008. Summons, ECF
No. 1; Def.’s Mem. of Law in Opp’n to Pl.’s Mot. for Summ. J. and in Supp. of Def.’s
Cross-Mot. for Summ. J. (“Def. Cross-Mot.”) at 2.
The parties do not dispute the identity of the subject merchandise: frozen
tempura-battered vegetable mixtures sold under the names of “Vegetable Bird’s Nests”
and “Tempura Vegetables.” Bird’s Nests consist of carrots, onion and kale, which are
cut julienned-style, mixed together, dipped in tempura batter, deep fried, flash frozen
and packaged eight in a retail tray. The name of the product is eponymous with the
appearance of the product. Def. Cross-Mot. at 2, Def. Ex. 2; Pl. Mot. at 2–3.
Court No. 09-00455 Page 3
Vegetable Medley includes eighteen pieces of tempura: three Bird’s Nests, three
pieces of sweet potato, three pieces of carrot, three pieces of wing bean, three pieces of
long or green bean, and three pieces of eggplant. Def. Cross-Mot. at 2. The individual
vegetables in the Vegetable Medley are also dusted with tempura batter, deep fried,
flash frozen and packaged in a retail box. Id.
Plaintiff imported twenty-four entries of subject merchandise in this case, ten into
the port of Boston and fourteen in the port of Long Beach. Def. Cross-Mot. at 3.
Customs classified the ten Boston entries and three of the Long Beach entries under the
Harmonized Tariff Schedule of the United States (“HTSUS”) tariff classification of
2004.90.85, which provides for “Other vegetables prepared or preserved otherwise than
by vinegar or acetic acid, frozen, other than products of heading 2006: Other vegetables
and mixtures of vegetables: Other: Other, including mixtures,” with a duty rate of
11.2%. Def. Cross-Mot. at 3.
Customs notes that eleven1 of the entries into the port of Long Beach were
liquidated under Plaintiff’s proposed tariff classification of 2106.90.99, HTSUS, which
provides for “Food preparations not elsewhere specified or included: Other: Other:
1
These eleven entries (277-0117421-4, 277-0117498-2, 277-0117803-3, 277-0118263-
9, 277-0118077-3, 277-0118462-7, 277-0118901-4, 277-0119300-8, 277-0119301-6, 277-
0119997-1 and 277-0116454-6) were liquidated under Plaintiff’s proposed classification
of subheading 2106.90.99, HTSUS. Customs avers that “this duty-free liquidation was
in error and does not reflect Customs’ position of the classification/rate of duty of the
subject merchandise.” Def. Facts ¶¶ 12-13.
Court No. 09-00455 Page 4
Other: Frozen,” with a duty-free preference for products from Thailand. Def. Facts ¶
13; Def. Cross-Mot. at 2–3. Although the other thirteen entries were liquidated at the
duty rate of 11.2%, these eleven entries were in fact, whether accidentally as Customs
claims or properly as Plaintiff claims, liquidated with no tariff rate. Pl. Facts ¶ 19; Def.
Facts ¶ 13.
On March 24 and 25, 2009, Plaintiff timely protested Customs’ classification for
all twenty-four entries, asserting that the proper classification of its subject merchandise
is subheading 2106.90.99, HTSUS. See Summons, ECF No. 1. Customs issued notices of
denials in response to Plaintiff’s protests on the following dates: Protest Number 2704-
XX-XXXXXXX on August 14, 2009; Protest Number 2704-09-1009963 on September 23, 2009;
and Protest Number 0401-09-1000484 on April 1, 2009. Id.; Def.’s Cross-Mot. at 3.
Plaintiff commenced this action on October 21, 2009. Summons, ECF No. 1.
2
Protest Number 2704-09-100924 covers the following three entries into the port
of Long Beach: 277-0116601-2, 277-0116682-2 and 277-0119690-2.
3
Protest Number 2704-09-100996 covers the following eleven entries into the port
of Long Beach: 277-0117421-4, 277-0117498-2, 277-0117803-3, 277-0118263-9, 277-
0118077-3, 277-0118462-7, 277-0118901-4, 277-0119300-8, 277-0119301-6, 277-0119997-1
and 277-0116454-6.
4
Protest Number 0401-09-100048 covers the following ten entries into the port of
Boston: 281-0107098-6, 281-0107614-0, 281-0108049-8, 281-0108452-4, 281-0108451-6, 281-
0109110-7, 281-0109447-3, 281-0111268-9, 281-0111338-0 and 281-0112080-7.
Court No. 09-00455 Page 5
JURISDICTION AND STANDARD OF REVIEW
The Court has “exclusive jurisdiction of any civil action commenced to contest
the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930”
pursuant to 28 U.S.C. § 1581(a) (2006).5 Summary judgment is appropriate when the
record shows that “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).
Although Customs usually enjoys a statutory presumption of correctness in its
classification decisions, this does not apply to pure issues of law in a summary
judgment motion before the Court. Universal Elec. Inc. v. United States, 112 F.3d 488, 492
(Fed. Cir. 1997). The Court “does not defer to Customs’ decisions because it has been
tasked by Congress to conduct a de novo review, and to determine the correct
classification based on the record made before it.” Universal Elec., 112 F.3d at 493; see 28
U.S.C. § 2640(a). Ultimately, 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).
Resolution of a disputed classification entails a two-step process: (1) ascertaining
the proper meaning of specific terms in the relevant tariff provisions; and (2)
5
All references to the United States Code hereinafter refer to the 2006 edition,
unless otherwise specified.
Court No. 09-00455 Page 6
determining whether the merchandise at issue comes within the description of such
terms as properly construed. Pillowtex Corp. v. United States, 171 F.3d 1370, 1373 (Fed.
Cir. 1999). 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). Correct classification of imported
merchandise is ultimately a question of law. Pillowtex Corp., 171 F.3d at 1373.
DISCUSSION
The threshold question in any judicial proceeding is whether the court has
jurisdiction to hear the case. Defendant raises jurisdictional issues in its cross-motion,
and therefore the Court first addresses the question of jurisdiction as to the three
protests at issue. The Court then decides the proper classification of the subject
merchandise for the entries over which it has jurisdiction.
A. Jurisdiction
1. Protest Number 0401-09-100048
Defendant raises a statute of limitations defense for Protest Number 0401-09-
100048. While this court has “exclusive jurisdiction of any civil action commenced to
contest the denial of a protest” pursuant to 28 U.S.C. § 1581(a), there is a statute of
limitations on the commencement of an action pursuant to 28 U.S.C. § 2636(a)(1):
(a) A civil action contesting the denial, in whole or in part, of a protest
under section 515 of the Tariff Act of 1930 is barred unless commenced in
Court No. 09-00455 Page 7
accordance with the rules of the Court of International Trade—
(1) within one hundred and eighty days after the date of mailing of notice
of denial of a protest under section 515(a) of such Act.
For jurisdiction to attach, a summons must be filed within 180 days after the notice of a
denial of protest is mailed. In the instant case, Plaintiff filed three protests to cover the
twenty-four entries and Customs issued denials on the following dates: Protest Number
2704-09-100924 on August 14, 2009; Protest Number 2704-09-100996 on September 23,
2009; and Protest Number 0401-09-100048 on April 1, 2009. See Summons, ECF No. 1;
see also Def.’s Cross-Mot. at 3. The summons commencing this action was filed on
October 21, 2009. See Summons, ECF No. 1. Accordingly, the protests denied on
August 14, 2009 and September 23, 2009 are timely; however, the protest denied on
April 1, 2009 falls outside the limitations period by approximately twenty days.
Therefore, the Court is barred by 28 U.S.C. § 2636(a)(1) from hearing a challenge to the
denial of Protest Number 0401-09-100048.
On April 28, 2009, Plaintiff filed a request to Customs to have its denial of Protest
Number 0401-09-100048 set aside pursuant to 19 U.S.C. § 1515(d), and on May 13, 2009,
Plaintiff filed a request to have the denial of its application for review set aside pursuant
to 19 U.S.C. § 1515(c). Summons, ECF No. 1; Def. Cross-Mot. at 10, n.3. Dropped in a
footnote in its Summons but not expanded upon in its motion, Plaintiff claimed that the
completion of the 180-day statute of limitations clock was tolled due to Customs’ failure
Court No. 09-00455 Page 8
to respond to its requests to set aside the denial of its protest and the denial of its
application for review.4 Id. Defendant countered that Plaintiff inserted this claim in its
Summons because Plaintiff “[a]pparently recogniz[ed] that jurisdiction would not attach
to these entries due to filing the summons after 180 days had passed”; however,
Defendant asserted that Plaintiff’s claim has “no impact on the 180-day period for filing
a summons and section 1515 provides no tolling mechanism.” Def. Cross-Mot. at 10,
n.3. The Court notes that 19 U.S.C. § 1515(c) explicitly mandates that the 180-day period
for commencing an action in the Court of International Trade is triggered by the initial
denial of the protest for statute of limitations purposes. Thus, the Court finds that
commencement of this action in relation to Protest Number 0401-09-100048 is barred by
the statute of limitations and determines that it lacks jurisdiction over the ten entries
covered by Protest Number 0401-09-100048.
2. Protest Number 2704-09-100996
Defendant raises a Constitutional defense for Protest Number 2704-09-100996. A
federal court’s jurisdictional reach has Constitutional limitations: an action must present
a case or controversy to be heard. U.S. CONST . Art III, § 2. Precedent has established
three elements to satisfy the Constitutional requirement of case or controversy: a
plaintiff (1) must have suffered an injury in fact (2) that is caused by the conduct
4
See the asterisk note on page 2 of the Schedule of Protests included in its
Summons, ECF No. 1. See also Defendant’s Exhibit 3 to its cross-motion.
Court No. 09-00455 Page 9
complained of and (3) that is “likely” be “redressed by a favorable decision.” Lujan v.
Def. of Wildlife, 504 U.S. 555, 560-61 (1992). Plaintiff, as the party invoking jurisdiction,
bears the burden of establishing these factors. Id. at 561.
Defendant asserts that the eleven entries covered by Protest Number 2704-09-
100996 were accidentally and incorrectly liquidated at Plaintiff’s proposed classification
at a duty free rate. Def. Cross-Mot. at 8–9. Because liquidation occurred at a duty free
rate, Customs argues that Plaintiff suffered “no injury in fact” as to these eleven entries
as required by the case or controversy doctrine. Id. at 8-9. The Court agrees that
Plaintiff suffered no injury as to these eleven entries. Thus, the Court finds that there is
no case or controversy as to these entries and determines that it lacks jurisdiction over
the eleven entries covered by Protest Number 2704-09-100996.
3. Protest Number 2704-09-100924
Defendant does not challenge jurisdiction for Protest Number 2704-09-100924,
which was timely commenced. Plaintiff claims injury caused by Customs’ improper
liquidation at a 11.2% duty rate and seeks redress in the Court. Thus, the Court
determines it has jurisdiction over the three entries (277-0116601-2, 277-0116682-2 and
277-0119690-2) covered by Protest Number 2704-09-100924.
B. Proposed Classifications
Customs classified the subject merchandise under subheading 2004.90.85,
Court No. 09-00455 Page 10
HTSUS, which provides for “Other vegetables prepared or preserved otherwise than by
vinegar or acetic acid, frozen, other than products of heading 2006: Other vegetables
and mixtures of vegetables: Other: Other, including mixtures,” with a duty rate of
11.2%. Def. Cross-Mot. at 3. Defendant explains:
Neither the inclusion of non-vegetable ingredients nor the
process of coating the vegetables in tempura batter and then
frying them serves to remove the [subject merchandise] from
classification in Heading 2004. . . . long-standing precedent on
the subject of prepared or preserved food products indicates
that products undergoing various processes (including frying)
and containing added ingredients fall squarely within the tariff
provision for products that are “prepared or preserved.”
Def. Cross-Mot. at 13. While conceding that the vegetables used in the subject
merchandise are processed with tempura batter, Defendant asserts that the vegetables
“retain[] the same nature and the same use for edible consumption as the vegetables
prior to processing” (Def. Facts ¶¶ 3, 7), and thus belong under the specific tariff
provision for prepared mixed vegetables and not Plaintiff’s proposed basket provision
for “food preparation” (Def. Cross-Mot. at 5-6).
Plaintiff contends that the manufacturing process does indeed change the nature
of the products from a vegetable mixture to food preparation. See Pl. Mot. at 6-7.
Plaintiff argues that the proper classification of the products is HTSUS subheading
2106.90.99, which provides for “Food preparations not elsewhere specified or included:
Other: Other: Other: Frozen,” with a duty free preference for products from Thailand.
Court No. 09-00455 Page 11
See HTSUS, General Notes 3(a)(iii), 3(c)(i), 4(a); see also HTSUS Heading 2106. Plaintiff
asserts its proposed classification is more specific than Defendant’s proposed
classification because “food preparations not elsewhere specified or included, provides
a more specific description of the imported goods when considering the principle use of
the imported goods as food preparations.” Pl. Mot. at 9. Defendant counters that
because a more specific heading is applicable, Plaintiff’s use provision argument in
support of its basket provision classification is rendered moot. See Def.’s Reply Mem. of
Law in Opp’n to Pl.’s Mot. for Summ. J. and in Further Support of Def.’s Cross-Mot. for
Summ. J. (“Def. Reply”) at 5.
C. GRI Analysis
Classification of merchandise is governed by the General Rules of Interpretation
(“GRIs”). Avenues in Leather, Inc. v. United States, 423 F.3d 1326, 1333 (Fed. Cir. 2005).
The GRIs direct “the proper classification of all merchandise and are applied 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. Mita Copystar Am. v. United States, 160 F. 3d 710,
712 (Fed. Cir. 1998). The analysis always starts with GRI 1, which provides
“classification shall be determined according to the terms of the headings and any
relative section or chapter notes.” Tariff terms are construed in accordance with their
Court No. 09-00455 Page 12
common or popular meaning. Medline Indus., Inc. v. United States, 62 F.3d 1407, 1409
(1995).
The Court first considers heading 2004, HTSUS, which provides for “Other
vegetables prepared or preserved otherwise than by vinegar or acetic acid, frozen, other
than products of heading 2006.” This heading is an eo nomine classification provision,
which “describes a commodity by a specific name.” Clarendon Marketing, Inc. v. United
States, 144 F.3d. 1464, 1467 (Fed. Cir. 1998). Bird’s Nests are comprised of julienned
carrots, onion and kale, which are mixed together, dipped in tempura batter, deep fried,
flash frozen and packaged eight in a retail tray. Def. Cross-Mot. at 2. Vegetable Medley
consists of eighteen pieces of tempura vegetables or vegetable mixtures: three Bird’s
Nests, three pieces of sweet potato, three pieces of carrot, three pieces of wing bean,
three pieces of long or green bean, and three pieces of eggplant, which are dusted with
flour and salt, dipped in tempura batter, deep fried, flash frozen and packaged in a
retail box. Id.
To prima facie fall under heading 2004, HTSUS five criteria must be met: the
products must be (1) vegetables that are (2) prepared or preserved, (3) otherwise than
by vinegar or acetic acid, which are (4) frozen, and are (5) other than products of
heading 2006, HTSUS. Both the Bird’s Nests and the Vegetable Medley satisfy all five
criteria: they are (1) vegetables that are (2) prepared (3) in tempura batter, not in vinegar
Court No. 09-00455 Page 13
or acetic acid, which are (4) flash frozen, and are (5) not products preserved by sugar as
provided for by heading 2006, HTSUS. Thus, the Court finds that the subject
merchandise prima facie falls under heading 2004, HTSUS.
Next, the Court considers heading 2106, HTSUS, which provides for “Food
preparations not elsewhere specified or included.” To prima facie fall under heading
2016, HTSUS, two criteria must be met: the products must be (1) a food preparation,
which is (2) not elsewhere specified or included. Both Bird Nests and Vegetable Medley
satisfy the first criterion, but not the second: they are (1) a food preparation by common
meaning, but they are (2) elsewhere specified or included. Because they are classifiable
under heading 2004, HTSUS, Bird’s Nests and Vegetable Medley do not satisfy the
second criterion of “not elsewhere specified or included.” Thus, the Court finds that the
products do not prima facie fit under heading 2106, HTSUS, which is an expansive basket
heading that only applies in the absence of another applicable heading.
In support of its position, Plaintiff referenced two ruling letters as support for its
proposed classification: (1) Ruling Letter NY 815439 (Oct. 26, 1995) and (2) Ruling Letter
N004522 (Jan. 12, 2007). Pl.’s Mot. at 6-7. Ruling Letter NY 815439 involves
classification of fruit and vegetable chips from China and Taiwan while Ruling Letter
N004522 involves frozen hors d’oeuvres from Canada. The Court finds both of those
Ruling Letters inapposite because the subject merchandise discussed in those ruling
Court No. 09-00455 Page 14
letters—chips made from a combination of fruits and vegetables and hors d’oeuvres
made from various ingredients including water, cheeses, oils, wheat crumbs and flour,
corn starch, batter, spices, salt, flavorings, alcohol, color and sorbic acid—are not
substantially similar to the tempura vegetable products at issue.
The Court reviewed ruling letters regarding other tempura-coated products,
such as shrimp. For example, Customs classified tempura shrimp products under a
provision for prepared shrimp. See Ruling Letters N138762 (Jan. 6, 2011), NY L80717
(Dec. 14, 2004). It appears that Customs has consistently classified tempura-coated
products by the underlying main food dipped into the tempura batter, not as a food
preparation. Therefore, the existing ruling letters lend credence to Customs’ proposed
classification for frozen prepared vegetables over Plaintiff’s proposed basket provision
for food preparations.
Defendant mentions another heading to be considered. Defendant raises the
point that the sweet potatoes in the Vegetable Medley may belong under a different
heading in Chapter 20. Def. Cross-Mot. at 14, n.8. An Explanatory Note to heading
2008 indicates that heading 2008 includes “[s]tems, roots and other edible parts of plants
(e.g., ginger, angelica, yams, sweet potatoes . . . .) conserved in syrup or otherwise
prepared or preserved.” WCO, Explanatory Note (7) to Heading 2008 (Supp. 9 to 2007
Ed.) (emphasis added). Heading 2008, HTSUS, provides for “fruits, nuts and other
Court No. 09-00455 Page 15
edible parts of plants, otherwise prepared or preserved, whether or not containing
added sugar or other sweetening matter or spirit, not elsewhere specified or included.”
First, the Court notes that the Explanatory Notes are “not legally binding or
dispositive, but they may be consulted for guidance and are generally indicative of the
proper interpretation of the various HTSUS provisions.” Benq America Corp. v. United
States, 646 F.3d 1371, 1376 (Fed. Cir. 2011) (citations omitted). Next, the Court
acknowledges that the subject merchandise at issue is not mere sweet potatoes but
rather tempura-coated vegetables or vegetable mixtures of which only one of the two
products includes three pieces of sweet potato, a mere 16 percent of the vegetable
mixture. Contemplating the product as a whole, a reasonable mind could not consider
the subject merchandise a sweet potato. It is, rather, a mixed vegetable product in
which sweet potatoes do not dominate.
Assuming, arguendo, that the sweet potatoes did constitute a significant
percentage or value of the Vegetable Medley, the Court analyzes the terms of heading
2008, HTSUS, to comprehensively consider all the possible tariff provisions. To prima
facie fall under this classification three criteria must be met: the products must be (1)
fruits, nuts or other edible parts of plants, (2) otherwise prepared or preserved, which
are (3) not elsewhere specified or included. The Vegetable Medley arguably satisfies the
first two criteria but not the third: while not a fruit or nut, it could colorably be
Court No. 09-00455 Page 16
considered (1) an other edible part of a plant and it is certainly (2) prepared in tempura
batter. However, as with Plaintiff’s proposed classification, this classification is nixed
from consideration by the phrase (3) “not elsewhere specified or included.” Because it
was found to fit under heading 2004, HTSUS, Vegetable Medley cannot fall under the
rubric of a basket provision, which was the same fate that befell heading 2106, HTSUS.
Thus, the Court finds that the products do not prima facie fall under heading 2008,
HTSUS.
The Court finally examines the one applicable heading, 2004, for the proper
subheading. Upon review of the possible subheadings under heading 2004, the Court
finds that the proper subheading is 2004.90.85, HTSUS, which provides for “Other
vegetables and mixtures of vegetables: Other.” Therefore, the Court holds the correct
tariff classification for the Bird’s Nests and Vegetable Medley is subheading 2004.90.85,
HTSUS.
CONCLUSION
Since 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, the case is ripe for
disposal at the summary judgment stage. See, e.g., Value Vinyls, Inc. v. United States, 31
CIT 173, 175, 2007 WL 273839 at *2 (2007) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-49 (1986)). The Court affirms Defendant’s preferred tariff classification of
Court No. 09-00455 Page 17
2004.90.85, HTSUS, for entries 277-0116601-2, 277-0116682-2 and 277-0119690-2 for
which jurisdiction lies. Therefore, Plaintiff’s Motion for Summary Judgement is denied
and Defendant’s Cross-Motion for Summary Judgment is granted. Judgment will enter
accordingly.
/s/ Gregory W. Carman
Gregory W. Carman, Judge
Dated: December 14, 2012
New York, New York
R.T. Foods, Inc. v. United States
Court: United States Court of International Trade
Date filed: 2012-12-14
Citations: 2012 CIT 152, 887 F. Supp. 2d 1351
Copy CitationsCombined Opinion