Telebrands Corp. v. United States
| Decision Date | 06 September 2012 |
| Docket Number | Court No. 11-00064,Slip Op. 12-115 |
| Parties | TELEBRANDS CORPORATION, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Before: Jane A. Restani, Judge
OPINION[Judgment for Defendant in Customs classification matter.]
Robert F. Seely, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of New York, NY, for plaintiff. With him on the brief were Robert B. Silverman and Peter W. Klestadt.
Amy M. Rubin, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, for defendant. With her on the brief were Stuart F. Delery, Acting Assistant Attorney General, and Barbara S. Williams, Attorney-In-Charge. Of counsel on the brief was Chi S. Choy, Office of Assistant Chief Counsel, U.S. Customs and Border Protection, of New York, NY.
Restani, Judge: In this action, plaintiff importer Telebrands Corporation ("Telebrands" or "Plaintiff") challenges the U.S. Customs and Border Protection's ("Customs" or "Defendant") classification for tariff purposes of certain pedicure items. After first classifying the importer's merchandise under subheading 8214.20.30, Harmonized Tariff Schedule of the United States ("HTSUS") (2007), Customs reclassified and reliquidated the merchandise undersubheading 8214.90.90, HTSUS, pursuant to its ruling in HQ H063622. Application for Further Review of Protest No. 2720-09-100197; Classification of PedEgg™ pedicure sets, Cust. HQ Rul. H063622 (Sept. 1, 2010), available at App. to Pl.'s Mot. for Summ. J., Ex. C. Plaintiff asserts the proper classification is subheading 8214.20.90, HTSUS. Mem. of Law in Supp. of Pl.'s Mot. for Summ. J. ("Pl.'s Br.") 2.
The claimed classifications are found under heading 8214, HTSUS. It reads as follows:
8214 Other articles of cutlery (for example, hair clippers, butchers' or kitchen cleavers, chopping or mincing knives, paper knives); manicure or pedicure sets and instruments (including nail files); base metal parts thereof:
8214.10.00 Paper knives, letter openers, erasing knives, pencil sharpeners (nonmechanical) and blades and other parts thereof
8214.20 Manicure or pedicure sets and instruments (including nail files), and parts thereof:
8214.20.30 Cuticle or cornknives, cuticle pushers, nail files, nailcleaners, nail nippers and clippers, all the foregoing used for manicure or pedicure purposes, and parts thereof.
Manicure and pedicure sets, and combinations thereof, in leather cases or other containers of types ordinarily sold therewith in retail sales:1
8214.20.60 In leather containers
8214.20.90 Other2
8214.90 Other:
Cleavers and the like not elsewhere specified or included:
8214.90.30 Cleavers with their handles
8214.90.60 Other
8214.90.90 Other (including parts)
The following are undisputed facts. See generally, Pl.'s Separate Statement of Material Facts Not in Issue ("Pl.'s Facts"), and Def.'s Resp. to Pl.'s Statement of Material Facts as to which There are No Genuine Issues to be Tried ( ).
3. The merchandise consists of two shaped and curved pieces of plastic (top and bottom half) and an interior plastic frame piece fitted into the top half forming a generally egg-shaped object. Id. ¶ 7; Def.'s Resp. Statement of Facts ¶ 7.
4. The merchandise is labeled with the trademark PedEgg™ containing the silhouette of a human foot appearing between the letters "Ped" and "Egg" and is marketed under this trademark in the United States. Pl.'s Facts ¶ 8.
5. As advertised for retail sale, the PedEgg™ is described as designed to fit in the hand while in use. Id. ¶ 9.
6. A flat stainless steel perforated object is affixed to the inside plastic frame piece that fits into the interior top half of the PedEgg™. It is described in marketing materials as a "micro-file." Id. ¶ 10.
7. The metal object is advertised for retail sale to "gently remove[] calluses and dead skin." Id. ¶ 13.
8. The metal object's function is to slice away very small, thin pieces of callused skin. Id. ¶ 14.
9. As advertised for retail sale, the PedEgg™ is described as "designed to collect all the skin shavings in a convenient storage compartment." Def.'s Resp. Statement of Facts ¶ 15; Pl.'s Facts ¶ 15.
10. When fitted together, the three plastic pieces of the PedEgg™ enclose the metal object. Pl.'s Facts ¶ 16.
11. The items described on the commercial invoice as emery "boards" consist of flexible emery pads having a self-adhesive backing (hereafter "emery pads"). Id. ¶ 17.
12. The subject emery pads are designed to adhere to the curved outside top surface of the PedEgg™. Id. ¶ 18.
13. The emery pads have been advertised as "high quality emery buffing pads." Id. ¶ 19.
14. The emery pad functions by scraping or abrading away very small particles of dry or callused skin. Id. ¶ 20.
15. As imported, each item consists of the PedEgg™, the emery pads (enclosed together in plastic wrap), and an instruction sheet. Id. ¶ 21.
16. Each item of subject merchandise was imported in a plain cardboard box. Id. ¶ 25.
17. Items packaged in plain cardboard boxes are sold directly to the ultimate consumer by mail order from website, newspaper, or television advertisements. Id. ¶ 27.
The court has jurisdiction over the denial of a protest pursuant to 28 U.S.C. § 1581(a). Customs classification decisions are reviewed de novo. See 28 U.S.C. § 2640(a)(1). Summary judgment is appropriate when "there is no genuine dispute as to the underlying factual issue of exactly what the merchandise is." Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1364-65 (Fed. Cir. 1998).
Cross motions for summary judgment are before the court. Pl.'s Br. 1; Def.'s Mem. in Support of Cross-Mot. for Summ J. and in Opp'n to Pl.'s Mot. for Summ. J. ("Def.'s Br.") 1. There are no disputed issues of material fact. The questions before the court are whether the imported items are to be classified as other items of cutlery under heading 8214, HTSUS, and, if so, whether they are "pedicure sets" or unitary cutting instruments with added emery pads, not specifically listed in HTSUS heading 8214. If they are the former, Plaintiff will prevail. If the latter, Defendant's classification is correct.
The PedEgg™ is a callus remover. It is imported with one or more emery pads that may be affixed to the PedEgg™ for further smoothing. Pl.'s Facts ¶¶ 18-21; Def.'s Resp. Statement of Facts ¶¶ 18-21.3 The court has before it samples of the imported items in cardboard boxes and samples of the same items in a clam-shell packaging, both types of packaging apparently intended for disposal upon opening. In the event some of the importationsat issue were in the latter type of packaging, the court notes that the distinction is unimportant to the resolution of this matter.
Because there seems to be confusion in some of the Court cases about how classification is to proceed in general, the court sets forth the background here. Resolution of classification disputes under the HTSUS is guided by its General Rules of Interpretation ("GRI"). Honda of Am. Mfg. v. United States, 607 F.3d 771, 773 (Fed. Cir. 2010). What is clear from the legislative history of the World Customs Organization ("WCO") and case law is that GRI 1 is paramount. It provides in relevant part, "classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes." GRI 1. GRI 2 references specific issues such as unfinished goods and mixtures, not relevant here, and subsequent GRIs refer to ways of classifying goods which fit into more than one heading. GRI 2-3. The Explanatory Notes to GRI 1 state that "the terms of the headings and any relative Section or Chapter Notes are paramount, i.e., they are the first consideration in determining classification" and the GRIs are to be considered in numerical order. WCO, Explanatory Note V(a) to GRI 1, HTS. The headings and relevant notes are to be exhausted before inquiries, such as those of GRI 3, are considered, e.g., specificity or essential character. The HTSUS is designed so that most classification questions can be answered by GRI 1,4 so that there would be no need to delve into the less precise inquiries presented by GRI 3.5 Similarly, GRI 6 requiresclassification among the competing subheadings according to the terms of the subheadings and related notes and in the same way and order as in the previous GRIs. Thus, only after exhausting the terms of the subheadings and related notes would one turn to GRI 3 to choose between two or more potentially applicable subheadings.
There are three hurdles for Plaintiff to overcome in order to have its merchandise classified as a pedicure set under subheading 8214.20.90, HTSUS. First, the merchandise must be classifiable under the heading 8214, HTSUS. The parties do not disagree as a primary matter that the item at issue is an item of cutlery. The small holes in the metal part "slice" bits of skin. In other words, they cut. This is an item of cutlery, not classified previously, such as the specifically listed hair clipper. It is an other item of cutlery under heading 8214, HTSUS. Thecourt now turns to the claimed subheading 8214.20.90, HTSUS. The two requirements of that subheading are that the item constitute a "set," as opposed to one item or instrument, and finally, the merchandise must be imported in a container normally sold with the set of instruments in retail sales.6
The parties...
To continue reading
Request your trial