XTC Products, Inc. v. US
| Decision Date | 12 July 1991 |
| Docket Number | Court No. 88-06-00451. |
| Citation | 771 F. Supp. 401 |
| Parties | XTC PRODUCTS, INC., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Sandler, Travis & Rosenberg (Beth C. Ring and Barry M. Boren), New York City, for plaintiff.
Stuart M. Gerson, Asst. Atty. Gen., Joseph I. Liebman, Atty. in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice (Nancy M. Frieden), Washington, D.C., for defendant.
Plaintiff, XTC Products, Inc., ("XTC") brings this action to challenge the classification by the United States Customs Service ("Customs") of its imported product under item 389.62 of the Tariff Schedules of the United States ("TSUS"), as a textile article not specifically provided for. Plaintiff seeks classification of the product, known as "Hugg-A-Planet," under item 273.30, TSUS, as a printed globe.
Plaintiff was the importer of record of the subject merchandise, which entered the United States from South Korea in 1986. The merchandise as imported is a textile material with a map of the world printed upon it, and constructed so that when it is stuffed with polyurethane, it takes on a spherical shape. Customs classified the Hugg-A-Planet "skins" under a basket provision of the TSUS for miscellaneous textile products. Specifically, Customs classified the articles under section 389.62, TSUS, which reads as follows:
This section carries a duty of 4¢ per pound plus 10% ad valorem. XTC claims that the Hugg-A-Planet should be classified under the eo nomine provision for printed globes, found at section 273.30, TSUS.1 The parties stipulated that at the time of importation, goods imported from South Korea under this section were eligible for duty-free entry under the Generalized System of Preferences ("GSP"). See Pretrial Order at 4. Hence, if plaintiff prevails in this action, its goods may enter duty-free.
The court may review a classification by Customs following the denial of a protest filed pursuant to 19 U.S.C. § 1514 (1988). Plaintiff properly is before the Court following denial of its protest. The Court's jurisdiction is based on 28 U.S.C. § 1581(a).
Customs' classification of imported merchandise is presumed to be correct. 28 U.S.C. § 2639(a)(1) (1988). Therefore, the importer challenging the classification bears the burden of showing the error of Customs' decision. Id.; Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 787 (Fed.Cir.1988), cert. denied, 488 U.S. 943, 109 S.Ct. 369, 102 L.Ed.2d 358 (1988). However, once the classification is contested, the court "must consider whether the government's classification is correct, both independently and in comparison with the importer's alternative." Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed. Cir.1984).
The threshold issue for the Court is whether the imported merchandise is a printed globe classifiable under the eo nomine provision or a miscellaneous textile product. Generally, an eo nomine designation is to "be preferred to terms of general description and to enumerations which are broader in scope and less specific." U.S. v. Astra Trading Corp., 44 CCPA 8, 11, C.A.D. 627 (1956). General Headnote 10(c) of the Rules of Interpretation, TSUS, adds that an "article which is described in two or more provisions of this schedule is classifiable in the provision which most specifically describes it."
To determine whether the Hugg-A-Planet fits within the eo nomine provision for printed globes, the Court first must define the term "printed globe." The meaning of a tariff term is a question of law. Digital Equipment Corp. v. United States, 889 F.2d 267, 268 (Fed.Cir.1989); Convertors Div. of Am. Hosp. Supply Corp. v. United States, 861 F.2d 710, 712 (Fed.Cir.1988). When determining the legal definition of a tariff term, the Court may rely upon the common and commercial meanings of the term as found in judicial authority and lexicographic materials. Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed.Cir.1989). See also Nippon Kogaku (USA), Inc. v. United States, 69 CCPA 89, 92-93, 673 F.2d 380, 382 (1982); A & A Int'l, Inc. v. United States, 11 CIT 775, 778, 676 F.Supp. 263, 265 (1987).
Webster's Third New International Dictionary at 965 (1986), defines a globe as:
a round typically hollow and metal ball that has a map of the earth drawn on it and that is usually set so as to be rotatable at an angle corresponding to the inclination of the earth's axis.
(Emphasis added.) The Second College Edition of the American Heritage Dictionary at 562 (1982), defines a globe as a "body with the shape of a sphere, especially a representation of the earth or heavens in the form of a hollow ball." (Emphasis added.) The Oxford English Dictionary, Second Edition, Volume VI, at 582 (1989), defines a globe as a "spherical structure on whose surface is depicted the geographical configuration of the earth (terrestrial globe), or the arrangement of the constellations (celestial globe)." These definitions, while providing a helpful guideline, pointedly are not exclusive of globes that are not hollow, metal or rotatable at an angle in conformity with the earth's axis.
Upon review of lexicographic and other sources, the Court finds that a proper legal definition of a globe is: A sphere with a reasonably accurate map of the earth printed upon it. Many variations of the typical globe exist, particularly in terms of component materials since globes may be made of metal, glass, plastic or, as in this case, a textile fabric. However, this general definition suffices for the Court's purposes.
The Hugg-A-Planet, as sold, is a sphere composed of a textile material of cotton and polyester, and stuffed with polyurethane. Printed upon the textile "skin" is a reasonably accurate map of the world. It appears to be printed to scale and it delineates continents, countries and major bodies of water.
At trial, plaintiff presented four witnesses who testified that the Hugg-A-Planet is used as a globe, that is, it is used to inform and educate people as to the geography of the earth. The government produced no witnesses in rebuttal. The use to which a product is put is relevant because the primary function of an item governs its classification. A & A Int'l, 11 CIT at 785, 676 F.Supp. at 270.
Plaintiff's first witness was Linda Lantieri, the director of the Resolving Conflict Creatively Program of the Division of Professional Development for the New York City public schools. Ms. Lantieri testified that the Hugg-A-Planet is used as an educational tool in the New York City public school system. She also stated that she worked with the product in educational programs in Alaska, Arkansas and Louisiana, and that the product was used to teach children about geography. Ms. Lantieri added that the printing on the Hugg-A-Planet is not incidental to its use because if a map of the world were not printed on it, she would not have purchased it for use in the school system. The second witness, Maria Stanof Haritopoulos, the store manager for Rand McNally in New York City, testified that the product is sold and marketed as a globe in the globe department of her store.
Robert Forenza, the president of XTC, testified as to the process for manufacturing the Hugg-A-Planet. He stated that there are over six hundred identifiable features on the globe and each is depicted accurately and to scale. Finally, Patricia Howard, the vice president for marketing of XTC, testified that the printing and geographical configurations are updated with each reprinting to add detail and account for geo-political changes.
The government has gone to great lengths in attempting to prove that the Hugg-A-Planet is not a globe because it is used by some purchasers and is advertised by some retailers, as a toy, pillow or ornament. Defendant cites to Headnote 1 of Schedule 2, Part 5 of the TSUS, under which is the printed globe classification. That headnote states that this part covers only printed matter, and "does not cover any article in which printing is merely incidental to the primary use of the article or in which printing is employed mainly for coloration or to produce a decorative or novelty effect." However, the fact that a globe is used as a toy, pillow or ornament does not change its essential character if it fits the definition of a globe. The functions of any globe are manifold. For instance, a globe with gold trim and interior illumination is still a globe, even though it is likely to be used for decorative purposes. Similarly, the fact that the Hugg-A-Planet is soft and squeezable does not change its fundamental character. Plaintiff's witnesses demonstrated that the printing on the Hugg-A-Planet is not incidental to its use as a globe. If not for the printing of a map of the world, it could not be used by the educational program directed by Ms. Lantieri, or sold in the globe department of the store managed by Ms. Haritopoulos. Therefore, the printing imparts the essential character of the product and Headnote 1 does not preclude classification of the Hugg-A-Planet under item 273.30, TSUS. See Dominion Ventures, Inc. v. United States, 10 CIT 411, 413, 1986 WL 30007 (1986).
Upon review of the testimony of plaintiff's witnesses, and of the product itself, the Court finds that the Hugg-A-Planet is a printed globe. It is spherical and has a reasonably accurate map of the world printed upon it. In addition, it is primarily used as an instrument of geographical information. Hence, it fits within the legal definition of a globe.
However, the Hugg-A-Planet is not imported in spherical form. The imported merchandise is the hollow and folded "skin" of the finished product. While the map of the earth is imprinted...
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