Processed Plastics Co. v. U.S., 06-1093.
| Decision Date | 21 December 2006 |
| Docket Number | No. 06-1093.,06-1093. |
| Citation | 473 F.3d 1164 |
| Parties | PROCESSED PLASTIC COMPANY, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
Elizabeth L. Barbour, Stack & Filpi, Chartered, of Chicago, Illinois, argued for plaintiff-appellant. On the brief were Paul F. Stack and Robert A. Filpi.
James A. Curley, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of New York, New York, argued for defendant-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, of Washington, DC; and Barbara S. Williams, Attorney in Charge, of New York, New York. Of counsel on the brief was Michael W. Heydrich, Attorney, Office of Assistant Chief Counsel, International Trade Litigation, United States Customs and Border Protection, of New York, New York.
Before LOURIE, SCHALL, and DYK, Circuit Judges.
Processed Plastics Company ("Processed") appeals from the decision of the United States Court of International Trade ("the trial court") granting summary judgment in favor of the United States and holding that United States Customs and Border Patrol ("Customs") properly classified two children's backpacks and one children's beach bag under subheading 4202.92.45 of the Harmonized Tariff Schedule of the United States ("HTSUS"). Because the trial court correctly granted summary judgment, we affirm.
The subject merchandise is a "Pooh backpack," a "Barbie backpack," and a "Barbie beach bag." The front, back, and side panels of the backpacks consist of polyvinyl chloride plastic sheeting while the bottom consists of a plastic mesh. The backpacks are about eleven inches high, nine inches wide, and three and a half inches deep, and include imprints of the respective "Pooh" and "Barbie" characters. The beach bag is a vertical cylinder with polyvinyl chloride plastic sheeting forming the vertical surface. The bottom consists of a plastic mesh, and a woven cord serves as a drawstring closure for the top of the bag and as the carry strap. The beach bag is twelve inches high and nine inches in diameter. Processed placed an assortment of sand toys manufactured in the United States in the backpacks and beach bag and then placed them in additional external packaging for retail sale.
Processed entered the subject merchandise into the United States between February and May 1999. Customs classified the backpacks and beach bag under subheading 4202.92.45, ". . . traveling bags, . . . knapsacks and backpacks, . . . and similar containers, . . . of sheeting of plastics . . .: Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: Other," with a 20% ad valorem duty. Processed filed a protest of the decision of Customs on October 29, 1999, and Customs denied the protest on March 28, 2000.
On December 13, 2001, Processed filed an action in the Court of International Trade protesting the final decision of Customs, asserting that the backpacks and bag are properly classifiable under subheading 9503.70.00, "Other toys; reduced-size (`scale') models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Other toys, put up in sets or outfits, and parts and accessories thereof," and thus duty free. The government filed a motion for summary judgment claiming that the subject merchandise is properly classified under subheading 4202.92.45 of the HTSUS.
The Court of International Trade determined that the conclusory statements offered by Processed in support of its opposition to the motion for summary judgment were insufficient to create genuine issues of material fact precluding summary judgment. In particular, the trial court determined that because of Processed's failure to prove the "play value" of the merchandise at issue, the "sine qua non" of a "toy," Processed's arguments as to more peripheral issues of fact were immaterial.
Having found no genuine issues of material fact, the Court of International Trade determined that summary judgment in favor of the government was appropriate. With respect to the backpacks, the court noted that heading 4202 specifically recites backpacks and that Additional U.S. Note 1 to Chapter 42 defines "travel, sports and similar bags," a phrase used in the subheadings of 4202, to include backpacks. The court then determined that the imported backpacks met the dictionary definition of "backpack." The court also noted that Processed's entry papers identified the items as "backpacks" and that Processed's advertising materials describe the items as "backpacks." The court then determined that the backpacks met the test of Totes, Inc. v. United States, 69 F.3d 495, 498 (Fed.Cir.1995), for the essential characteristics of items within heading 4202 ("organizing, storing, protecting, and carrying various items"). The court determined that the beach bag is a "similar container" and "similar bag" as recited in heading 4202 and under subheading 4202.92, respectively, and that similar reasoning thus applied to the beach bag. The trial court concluded that the backpacks and beach bag were properly classified under subheading 4202.92.45.
Processed timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).
We review the Court of International Trade's grant of summary judgment on tariff classifications de novo. Cummins Inc. v. United States, 454 F.3d 1361, 1363 (Fed.Cir.2006). A classification decision involves two underlying steps: (1) determining the proper meaning of the tariff provisions, which is a question of law; and (2) then determining which heading the particular merchandise falls within, which is a question of fact. Id.
In its opening brief on appeal, Processed argues that the trial court erred by granting summary judgment in favor of the government despite the existence of genuine issues of material fact as to the nature and use, avenue of sale, and weight-capacity of the merchandise. Processed argues that because the word "toy" is not defined by the HTSUS, the trial court has determined that "toys" are "articles whose principal use is amusement, diversion, or play, rather than practicality." See Minnetonka Brands, Inc. v. United States, 110 F.Supp.2d 1020, 1027 (Ct. Int'l Trade 2000). Processed argues that each of the disputed issues above is material to the determination of such principal use under the multi-factor test for a "toy" laid out in Minnetonka. See id. Second, Processed argues that the trial court erred in determining that the merchandise is properly classified under subheading 4202.92.45 rather than heading 9503. Processed further argues that any utilitarian aspects of the merchandise are incidental to its amusement qualities and that the merchandise satisfies the multi-factor test of Minnetonka. Finally, Processed argues that when a product is prima facie classifiable under two headings, General Rule of Interpretation ("GRI") 3(a) of the HTSUS provides that the more specific heading is preferred and that a "use provision" is generally more specific than an eo nomine provision.
The government responds that the trial court applied the correct standard for defining "toys" and properly granted summary judgment. The government argues that Processed did not come forward with sufficient evidence to create triable issues on matters for which it bore the burden of proof. The government also adopts the position of the trial court that "play value" is the dominant factor in determining whether a product should be classified as a toy. In addition, the government argues that the amusement value of the merchandise cannot be incidental to the utilitarian aspects because Processed failed to provide sufficient evidence to support a finding that play value even exists in this merchandise. Furthermore, the government argues that Processed's advertising focuses on the utility of the backpacks and beach bag to transport the sand toys sold with the backpacks and bag and to transport other small personal children's items. The government further argues that GRI 3(a) does not apply to this case because Processed did not demonstrate that the products are prima facie classifiable under heading 9503. Lastly, the government asserts that the heading "traveling bags . . . backpacks . . . and similar containers" for 4202 is far more specific than the heading "Other toys" for 9503.
We agree with the government that the Court of International Trade correctly granted summary judgment affirming Customs's classification of the merchandise. We first set out the relevant portions of the HTSUS, as follows:
4202 Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or paperboard, or wholly or mainly covered with such materials or with paper:
* * *
Other:
* * *
4202.92 With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: With outer surface of textile materials:
* * *
4202.92.45 Other
* * * * * *
9503 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: * * *
9503.70.00 Other toys, put up in sets or outfits, and parts and accessories thereof
The classification of imported items is determined by their condition at the time of entry. Austin Chem. Co. v. United States, 835 F.2d 1423, 1426 (Fed.Cir.1987).
We agree...
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