Kalle USA, Inc. v. United States

• Decision Date: 02 May 2019
• Docket Number: 2018-1378
• Citation: 923 F.3d 991
• Parties: KALLE USA, INC., Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

923 F.3d 991

KALLE USA, INC., Plaintiff-Appellant

v.UNITED STATES, Defendant-Appellee

2018-1378

United States Court of Appeals, Federal Circuit.

Decided: May 2, 2019

Frederic Van Arnam, Jr., Barnes, Richardson & Colburn, LLP, New York, NY, argued for plaintiff-appellant.

Hardeep Kaur Josan, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice, New York, NY, argued for defendant-appellee. Also represented by Amy Rubin; Jeanne Davidson, Joseph H. Hunt, Washington, DC; Paula S. Smith, Office of the Assistant Chief Counsel, United States Bureau of Customs and Border Protection, United States Department of Homeland Security, New York, NY.

Before Dyk, Chen, and Hughes, Circuit Judges.

Concurring opinion filed by Circuit Judge Hughes.

Per Curiam.

This is a tariff classification case involving imported sausage casings. Kalle USA, Inc. appeals the Court of International Trade’s summary judgment decision classifying the casings as made-up textiles under subheading 6307.90.98 of the Harmonized Tariff Schedule of the United States. Kalle USA, Inc. v. United States , 273 F.Supp.3d 1319, 1333 (Ct. Int’l Trade Nov. 2, 2017). Kalle argues that the Trade Court erroneously interpreted the phrase "completely embedded in plastics" as it is used in HTSUS Chapter 59 Note 2(a)(3), and that the casings should be classified as plastics under HTSUS Chapter 39. Because we agree with the result reached by the Trade Court, we affirm.

I

A.

Kalle imports its NaloProtex G1 and NaloProtex G2 casings¹ into the United States from Germany. The casings, which are used to encase processed food products, such as sausage, ham, or cheese, are comprised of a woven textile sheet that is coated with a layer of plastic on one side. "The plastic coating is chosen to be appropriately thin" and "only fills the interstitial spaces between the textile fibers" to ensure that the casing’s "textile character remains recognizable even after a coating." J.A. 81. The textile material gives the casing its strength and shape and allows the casing to "absorb dyes and aroma substances and transfer these substances into the encased product." Id. The plastic coating helps "prevent moisture transmission into or out of the casings." Id. After the textile sheet is coated in plastic, the sheet is trimmed, folded to form a tube, and "fixed with a seam by gluing." Id. The casings are imported as flattened tubes wound

around a cardboard core.

B.

Kalle imported nine entries of the NaloProtex casings between July and August of 2010. The casings were liquidated by United States Customs and Border Protection in June 2011 under HTSUS subheading 6307.90.98 (2010),² which covers "[o]ther made up articles, including dress patterns: ... [o]ther ... [o]ther" and is subject to a duty of 7%. Kalle filed a protest to Customs’ determination in September 2011, arguing that the casings should be classified under HTSUS subheading 3917.39.0050, which covers "[t]ubes, pipes and hoses and fittings therefor (for example, joints, elbows, flanges), of plastics: ... [o]ther ... [o]ther" and is subject to a duty of 3.1%. Kalle emphasized that the "tubes, pipes, and hoses" of heading 3917 "include[ ] sausage casings and other lay-flat tubing." See HTSUS Chapter 39 Note 8. Customs denied Kalle’s protest.

Kalle then filed a complaint with the Trade Court in January 2013. The Trade Court granted summary judgment in favor of the government after determining that "the casings are made up articles of textile fabric, [so] they are properly classified under heading 6307." Kalle , 273 F.Supp.3d at 1336. The court noted that heading 6307 is within HTSUS Section XI and that Chapter 39 expressly excludes goods of Section XI from its scope. See HTSUS Chapter 39 Note 2(p) (noting that "[t]his chapter does not cover ... [g]oods of section XI (textiles and textile articles)"). Therefore, the court concluded that the casings "cannot be classified under heading 3917" as Kalle argued. Kalle , 273 F.Supp.3d at 1336.

The Trade Court rejected Kalle’s argument that the casings are "completely embedded in plastics" and are thus excluded from Section XI pursuant to HTSUS Chapter 59 Note 2(a)(3). Citing dictionary definitions of the words "completely" and "embedded," the court determined that "for a textile to be completely embedded in plastic, it must be entirely firmly fixed in the plastic." Id. at 1333. Because the "casings are only coated on one side and ... the coating material only fills the interstitial spaces between the textile fibers," the Trade Court found that the casing’s "textile is not embedded in the plastic for purposes of [Chapter 59 Note] 2(a)(3)." Id.

Kalle now appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(5).

II

A.

The parties agree that this case turns on the interpretation of the phrase "completely embedded in plastics" as it is used in HTSUS Chapter 59 Note 2(a)(3). An overview of the relevant tariff provisions illustrates why that issue is determinative.

The HTSUS is organized by headings, which cover "general categories of merchandise," and each heading contains one or more subheadings, which "provide a more particularized segregation of the goods within each category." Orlando Food Corp. v. United States , 140 F.3d 1437, 1439 (Fed. Cir. 1998). "[T]ariff classification of merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (‘GRIs’)." Deckers Outdoor Corp. v. United States , 714 F.3d 1363, 1366 (Fed. Cir. 2013). The GRIs are applied in numerical order. Id. Under GRI 1, "the HTSUS headings, as well as relative section or chapter notes, govern the classification of a product." Orlando Food Corp. , 140 F.3d at 1440. Section and chapter notes "are not optional interpretive rules, but are statutory law, codified at 19 U.S.C. § 1202." Park B. Smith, Ltd. v. United States , 347 F.3d 922, 926 (Fed. Cir. 2003).

The government argues that under GRI 1, the casings are classifiable as made-up textiles under Chapter 63 of the HTSUS, subheading 6307.90.98. For an article to fall under Chapter 63, it must be an article "of any textile fabric." HTSUS Chapter 63 Note 1. Kalle argues that the casings are not articles "of any textile fabric" and are instead plastic articles classifiable under Chapter 39, subheading 3917.39.0050.

Because of two mutually exclusive exclusionary notes, an article cannot be classifiable under both Chapter 63 and Chapter 39. First, Note 1(h) of Section XI states that Section XI, which includes Chapter 63, "does not cover: ... [w]oven, knitted, or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of chapter 39." Second, Note 2(p) of Chapter 39 excludes "[g]oods of section XI (textiles and textile articles)" from the scope of Chapter 39. Thus, if the casings are textile articles of Section XI, then they are not classifiable under Chapter 39; and if the casings are plastic articles of Chapter 39, then they are not classifiable under Section XI.

Here, the casings are comprised of both textile and plastic materials. Where an article is comprised of both textile and plastic, we must look to Chapter 59 to determine whether the article should be classified as a textile under Section XI or a plastic under Chapter 39. Chapter 59 falls within Section XI, and it covers "impregnated, coated, covered or laminated textile fabrics." Heading 5903 of Chapter 59 specifically applies to "[t]extile fabrics, impregnated, coated, covered or laminated with plastics ." (emphasis added). But, heading 5903 does not cover "[p]roducts in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material." HTSUS Chapter 59 Note 2(a)(3) (emphasis added). Instead, those products fall under Chapter 39. Id.

Therefore, the controlling question here is whether the casings’ textile fabric is "completely embedded in plastics." Id. If the casings are "completely embedded," the government agrees that they should be classified under Kalle’s proposed subheading, 3917.39.0050. If the casings are not "completely embedded," Kalle does not dispute that they should be classified under subheading 6307.90.98.

B.

Classification of goods under the HTSUS is a two-step process that involves: (1) determining the proper meaning of terms in the tariff provisions; and (2) determining whether the goods fall within those terms. Sigma-Tau HealthScience, Inc. v. United States , 838 F.3d 1272, 1276 (Fed. Cir. 2016). We review interpretation of terms in the HTSUS de novo, and we review the factual findings of the Trade Court for clear error. Id. Typically, "whether the goods come within the description of [the] terms" in the HTSUS is a factual question. Kahrs Int’l, Inc. v. United States , 713 F.3d 640, 644 (Fed. Cir. 2013). However, "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).

Although decisions by Customs interpreting provisions of the HTSUS may receive some deference under the principles of Skidmore v. Swift & Co. , 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), Customs’ decisions are not controlling upon this court, and "this court has an independent responsibility to decide the legal issue of the proper meaning and scope of HTSUS terms." MetChem, Inc. v. United States , 513 F.3d 1342, 1345 (Fed. Cir. 2008) (quoting Warner-Lambert Co. v. United States , 407 F.3d 1207, 1209 (Fed. Cir. 2005) ); see also Rubie’s Costume Co. v. United States , 337 F.3d 1350, 1355–56 (Fed. Cir. 2003).

"Absent contrary legislative intent, HTSUS terms are to be construed according to their common and commercial meanings." La Crosse Tech., Ltd. v. United States , 723 F.3d 1353, 1358 (Fed. Cir. 2013) (quoting Carl Zeiss, Inc. v. United States , 195 F.3d 1375, 1379 (Fed. Cir. 1999) ). When...