Aromont USA, Inc. v. United States , 34 Ct. Int'l Trade 1014 ( 2010 )

Slip Op. 10 - 90
UNITED STATES COURT OF INTERNATIONAL TRADE
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AROMONT USA, INC., :
Plaintiff, :
v. : Court No. 03-00354
UNITED STATES, :
Defendant. :
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Opinion & Order
[Upon cross-motions as to classification of
certain food flavorings, summary judgment
for the plaintiff.]
Decided: August 12, 2010
Bryan Cave LLP (Brian A. Sher and Joseph H. Heckendorn) for
the plaintiff.
Tony West, Assistant Attorney General; Barbara S. Williams,
Attorney in Charge, International Trade Field Office, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(Marcella Powell); and Office of the Assistant Chief Counsel,
International Trade Litigation, U.S. Customs and Border
Protection (Sheryl French), of counsel, for the defendant.
AQUILINO, Senior Judge: U.S. Customs and Border
Protection (“CBP”) classified certain merchandise derived from
veal, chicken, duck, lamb, beef, fish, lobster, mushroom or
vegetable stock under subheading 2104.10.00 (“Soups and broths
and preparations therefor . . . Other”) of the Harmonized Tariff
Schedule of the United States (“HTSUS”) (2001) and imported from
Court No. 03-00354 Page 2
France by Aromont USA, Inc., which protested that
classification, taking the position that those goods should have
been classified under subheading 2106.90.99, covering “Food
preparations not elsewhere specified or included . . . Other”.
Upon denial of the protest after liquidation of duties1, the
plaintiff commenced this case, and, following joinder of issue,
the defendant interposed a motion for summary judgment of
dismissal.2 The plaintiff has responded with a cross-motion for
summary judgment on its behalf.
Jurisdiction of the court is pursuant to 19 U.S.C.
§1581(a) and 28 U.S.C. §2631(a).
I
The import, of course, of a motion for summary
judgment is that there is no genuine issue of material fact that
requires trial within the meaning of USCIT Rule 56 and teaching
1
They amounted to 100 percent ad valorem pursuant to the
authority granted the U.S. Trade Representative by section 301
of the Trade Act of 1974, as amended, 19 U.S.C. §2411. See
Defendant’s Memorandum, p. 2 n. 3.
2
The motion papers make clear that only plaintiff’s entries
classified under subheading 2104.10.00 remain at issue, not any
of those encompassed by Protest No. 1101-02-100655, which was
originally impleaded herein. Compare Defendant’s Statement of
Undisputed Material Facts, paras. 6-8, with Plaintiff’s Response,
paras. 6-8.
Court No. 03-00354 Page 3
of Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Here, the parties’ papers in support of their cross-motions do
not lead this court to conclude otherwise. Indeed, the plaintiff
admits defendant’s description of the preparation if not nature
of the products at issue, which are listed in its Exhibit A3, to
wit:
a. First, Aromont ran the bones through the “guillotine”
to cut them into small sizes.
b. Next, Aromont fe[]d the bones directly into cookers,
or the bones were roasted.
c. The bones were then simmered for a long period of
time.
d. The resulting “classical stock” had the fat skimmed
off and the bones and other sediment removed. The
resulting mixture was a “clear richly flavored broth
that [was] then reduced to a rich honey like
consistency.”
e. The honey paste was then pumped into mixing and
packing machines.
* * *
3
Listed, in each instance “concentrated”, are beef stock;
beef stock flavor; boiled chicken broth, duck fat and chicken
fat flavor; roast chicken broth and duck fat flavor; duck broth
and duck fat flavor; fish broth; lamb broth and lamb fat flavor;
lobster broth; mushroom base; mushroom stock; veal broth flavor;
veal and beef broth flavor; vegetable stock [numerical
annotation of each omitted]. See generally Defendant’s Exhibit
K.
Court No. 03-00354 Page 4
16. There is no difference between the merchandise
Aromont marketed as “demiglaces” and those it marketed as
“stocks.”
17. With the exception of the vegetable varieties,
Aromont’s “stocks” were prepared in the exact same manner.4
A
The primary thrust of plaintiff’s protest to CBP, and
now on appeal to this court, is that two rulings it obtained
earlier from Customs, namely NY800645 (Aug. 26, 1994) and
HQ957024 (March 3, 1995)5, should have led the agency to the
classification preferred herein. They did not. Nor can this
court conclude otherwise now. The Service’s ruling practice and
procedure published at the time of entry were in pertinent part:
Tariff classification rulings. Each ruling letter
setting forth the proper classification of an article
under the provisions of the [HTSUS] will be applied
only with respect to transactions involving articles
identical to the sample submitted with the ruling
request or to articles whose description is identical
to the description set forth in the ruling letter.
19 C.F.R. §177.9(b)(2) (2001). NY800645 describes one of
Aromont’s proffered substances as a beef flavoring in powder
4
Compare Defendant’s Statement of Undisputed Material
Facts, para. 14 and paras. 16 and 17 (citations omitted), with
Plaintiff’s Response, paras. 14 and 16 and 17.
5
Plaintiff’s Exhibits A and B.
Court No. 03-00354 Page 5
form without the use of beef extract. As for the other
substances referred for ruling, all liquids, Customs found:
1) Veal flavoring – contains veal extract, veal
fat, concentrates of carrot, onion, leek, tomato,
garlic and mushroom, olive oil, sunflower oil,
glucose, dextrine and other ingredients.
2) Chicken flavoring – contains chicken
extract, chicken fat, duck extract, egg yolk,
concentrates of carrot, onion and leek, olive oil,
sunflower oil, glucose, dextrine and other
ingredients.
3) Duck flavoring – contains duck extract, duck
fat, sunflower oil, glucose, dextrine, and other
ingredients.
4) Lamb flavoring – contains lamb extract, lamb
fat, concentrates of carrot, onion, leek and garlic,
olive oil, sunflower oil, glucose, dextrine, and other
ingredients.
5) Fish flavoring – contains fish extract,
chicken fat, seafood extract, concentrates of carrot,
onion and shallot, sunflower oil, glucose, dextrine,
and other ingredients.
6) Lobster flavoring – contains fish extract,
lobster extract, chicken fat, seafood extract,
concentrates of carrot, onion, tomato and shallot,
sunflower oil, glucose, dextrin and other ingredients.
7) Beef flavoring – contains glucose, dextrine,
autolysed yeast, soya lecithin, salt and other
ingredients.6
6
The focus of HQ957024 upon Aromont request for
reconsideration by Headquarters was not on these findings per
se, rather whether the percentages of the animal extracts
therein entitled the flavorings to classification under HTSUS
(footnote continued)
Court No. 03-00354 Page 6
On its face, this description is not “identical” to the
description of plaintiff’s merchandise currently at bar, either
as admitted by it with regard to defendant’s statement of
undisputed material facts, supra, or in its own statement or
pleadings. Cf. Plaintiff’s Complaint passim and its Counter
Statement of Undisputed Facts, paras. 3-8. Hence, the
requirement of section 177.9(b)(2) is not satisfied, nor is the
other requirement of that section met in the papers before this
court. That is, they do not show that plaintiff’s present
products are “identical” to the samples upon which Customs made
its findings in NY800645 and recited above.
B
The first general rule of interpretation of the HTSUS
is that classification shall be determined according to the
terms of its headings and any relative section or chapter notes.
In this case, the defendant stands by CBP’s classification of
plaintiff’s goods as “broth” eo nominee heading 2104. But it
correctly notes that that term is not defined in the HTSUS.
Hence, the common and commercial meaning is presumed. See, e.g.,
Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 789
(Fed.Cir. 1988). See also E.M. Chemicals v. United States, 920
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heading 1603. (“Extracts and juices of meat, fish or
crustaceans, molluscs or other aquatic invertebrates”).
Court No. 03-00354 Page 7
F.2d 910, 913 (Fed.Cir. 1990) (“[t]ariff terms are to be
construed in accordance with their common and popular meaning,
in the absence of a contrary legislative intent”).
The defendant relies on a dictionary definition of
“broth”, to wit, a “liquid in which meat, fish, cereal grains,
or vegetables have been cooked”. Defendant’s Memorandum, p. 11,
quoting from Webster’s Third New International Dictionary,
Unabridged (1981 ed.). While obviously broad, this definition
does not capture the essence of plaintiff’s “concentrated”
products, the processing of which results in “a rich honey like
consistency” or “honey paste”. CPB’s National Import Specialist
refers to “reduc[tion] to 70% solids.” Defendant’s Exhibit I,
para. 7. Whatever the precise percentage, it does not connote
the degree of liquidity or fluidity forever expected of a broth.
To quote the paragon American lexicon, broth is
[l]iquid in which meat, and often barley, rice,
vegetables, or the like, have been gently boiled; thin
or simple soup.
Webster’s New International Dictionary of the English Language,
Unabridged, p. 343 (2d ed. 1934). See also Plaintiff’s Reply
Memorandum, Exhibit B, first page. To recite from Plaintiff’s
Counter Statement of Undisputed Facts:
Court No. 03-00354 Page 8
11. Aromont stocks are made from roasting bones;
whereas broths are made from cooking meat in water.
12. The Aromont flavorings are physically
different from broths in that they contain much less
salt and are much more gelatinous.
13. The Aromont flavorings are not finished
products, whereas broths are capable of being
consumed.
14. Aromont is not aware of any of its customers
using the products at issue as a finished soup or
finished broth.
15. The largest customers of the Aromont
flavorings at issue use the products as ingredients
for gravies, sauces and salad dressings.7
Defendant’s classification under HTSUS subheading
2104.10.00 (“Soups and broths and preparations therefor”)
encompasses not only elements eo nominee but also use. And,
in the absence of legislative intent to the contrary,
a product described by both a use provision and an eo
nominee provision is generally more specifically
provided for under the use provision.
United States v. Siemens Am., Inc., 653 F.2d 471, 478 (CCPA
1981). The latter such provision in 2104.10.00, as well as in
plaintiff’s preferred 2106.90.99, is “preparations”, which is
7
Citations omitted. The defendant disagrees, at least in
part, with these statements of fact but also responds as to each
that its “dispute is not material to the issues in this action,
and therefore does not prevent summary judgment.” Defendant’s
Response to Plaintiff’s Counter Statement of Material Facts, pp.
7-9.
Court No. 03-00354 Page 9
not defined in the HTSUS. However, inherent in the term is an
expectation of specific use. See, e.g., Orlando Food Corp. v.
United States, 140 F.3d 1437, 1441 (Fed.Cir. 1998), citing the
definition of “preparation” in 12 The Oxford English Dictionary,
p. 374 (2d ed. 1989), namely, “a substance specially prepared,
or made up for its appropriate use or application, e.g. as food
or medicine”.
Proper classification turns on the principal use of
subject merchandise. See, e.g., Clarendon Mktg., Inc. v. United
States, 144 F.3d 1464, 1467 (Fed.Cir. 1998) (holding the
principal use of the class is controlling, not the principal use
of the specific import). Additional U.S. Rule of Interpretation
1(a) of the HTSUS provides that, in
the absence of special language or context which
otherwise requires -- a tariff classification
controlled by use . . . is to be determined in
accordance with the use in the United States at, or
immediately prior to, the date of importation, of
goods of that class or kind to which the imported
goods belong, and the controlling use is the principal
use.
Principal use has been defined as the one “which
exceeds any other single use.” Minnetonka Brands, Inc. v.
United States, 24 CIT 645, 651, 110 F.Supp.2d 1020, 1027 (2000)
(citations omitted). In evaluating principal use, courts may
Court No. 03-00354 Page 10
consider, inter alia: the general physical characteristics of
the merchandise, the expectation of the ultimate purchasers, the
channels, class or kind of trade in which the merchandise moves,
the environment of the sale, the use, if any, in the same manner
as merchandise which defines the class, the economic
practicality of so using the import, and the recognition in the
trade of this use. United States v. Carborundum Co., 536 F.2d
373, 377 (CCPA), cert. denied, 429 U.S. 979 (1976).
In the case at bar, Aromont products are not
principally used as soups or broths. They are “sold through
three principal channels: large ingredient customers, food
service distributors, and [] retail distributors and retail
stores.” Plaintiff’s Memorandum, p. 13. Review of the company’s
sales reports reveals that Aromont’s single largest industrial
customer accounts for over half of its sales and uses the
flavorings in gravies and sauces in its line of frozen dinners.
Other applications include “brines, marinades, injections, rubs,
flavor additives, and vacuum tubing.” Id. at 17. In short,
plaintiff’s products are found in a variety of end uses:
. . .[A]pplications abound, with the addition of wine,
water, meat jus or cream; delectable traditional
sauces, glazes, stocks and soups are readily fashioned
or try our heat and serve EZ-Sauces and Gravies!
Court No. 03-00354 Page 11
Defendant’s Exhibit C. While the result of such application
could be “soup”, as imported plaintiff’s goods are properly
classified under heading 2106 “Food preparations not otherwise
specified or included”).8
II
In view of the foregoing, defendant’s motion for
summary judgment must be denied. Plaintiff’s cross-motion will
be granted, with summary judgment entered in its favor.
So ordered.
Decided: New York, New York
August 12, 2010
___/s/ Thomas J. Aquilino, Jr.____
Senior Judge
8
In reaching this conclusion of law, based on the parties’
excellent submissions in support of their cross-motions for
summary judgment, the court has not found it necessary to
consider the declaration of Khaled Zitoun, plaintiff’s exhibit D.
Ergo, defendant’s motion to strike certain portions of that
declaration and plaintiff’s Motion for Leave to File a
Supplemental Declaration of Khaled Zitoun Instanter can be, and
each hereby is, denied as moot.