Nature's Touch Frozen Foods (West) Inc. v. United States , 2023 CIT 82 ( 2023 )

Slip. Op. No. 23-82
UNITED STATES COURT OF INTERNATIONAL TRADE
NATURE’S TOUCH FROZEN FOODS
(WEST) INC.,
Plaintiff, Before: Stephen Alexander Vaden,
Judge
v.
Court No. 1:20-cv-00131
UNITED STATES,
Defendant.
OPINION
Granting in-part and denying in-part Defendant’s Cross-Motion for Summary
Judgment and denying Plaintiff’s Motion for Summary Judgment.
Dated: May 26, 2023
John M. Peterson, Neville Peterson LLP, of New York, NY for Plaintiff. With him on
the brief were Richard F. O’Neill and Patrick B. Klein.
Jamie L. Shookman, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, for Defendant United States. With
her on the brief were Justin R. Miller, Attorney-in-Charge, International Trade Field
Office; Brian M. Boynton, Principal Deputy Assistant Attorney General; and Patricia
M. McCarthy, Director, Commercial Litigation Branch. Of counsel on the brief was
Fariha B. Kabir, Office of the Assistant Chief Counsel, International Trade
Litigation, U.S. Customs and Border Protection.
Vaden, Judge: Plaintiff Nature’s Touch Frozen Foods (West) Inc. (Plaintiff
or Nature’s Touch) brought this action contesting U.S. Customs and Border
Protection’s (Customs) tariff classification of the subject merchandise, which are
mixtures of frozen fruit, some of which contain frozen vegetable ingredients. In cross-
Court No. 1:20-cv-00131 Page 2
motions for summary judgment, Nature’s Touch argues that the merchandise should
be classified under Harmonized Tariff Schedule of the United States (HTSUS)
subheading 2106.90.98 as “[f]ood preparations not otherwise specified or included:
Other: Other; Other; Other; Other; Other,” while the United States (Defendant or the
Government) argues for classification under various eight-digit provisions within
HTSUS heading 0811 as “Fruit . . . frozen[.]” For the reasons stated below, Nature’s
Touch’s Motion for Summary Judgment is DENIED and the Government’s Cross-
Motion for Summary Judgment is GRANTED IN-PART.
BACKGROUND
I. Procedural Background
This case concerns various frozen fruit mixture products that Nature’s Touch
imported into the United States from Canada between June 6, 2018, and November
21, 2018. Summons at 3–4, ECF No. 1. At liquidation, Customs classified the subject
merchandise under heading 0811, HTSUS, which covers “Fruit and nuts, uncooked
or cooked by steaming or boiling in water, frozen, whether or not containing added
sugar or other sweetening matter.” 0811, HTSUS; Pl.’s Statement of Undisputed
Material Facts (Pl.’s Facts) ¶¶ 11–24, ECF No. 28. Depending on the ingredients of
the mixture, Customs classified the merchandise in liquidation under the following
HTSUS subheadings: 0811.90.10 (“Bananas and plantains”), 0811.90.20
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(“Blueberries”), 0811.90.52 (“Mangoes”), and 0811.90.80 (“Other”).1 Pl.’s Facts ¶¶ 11–
24, ECF No. 28; Def.’s Resp. to Pl.’s Statement of Undisputed Material Facts (Def.’s
Resp. Facts) ¶¶ 11–24, ECF No. 36. The relevant provisions and duty rates of HTSUS
Chapter 8, which covers “Edible Fruit and Nuts; Peel of Citrus Fruit or Melons,” read:
0811: Fruit and nuts, uncooked or cooked by steaming or boiling in
water, frozen, whether or not containing added sugar or other
sweetening matter:
0811.10: Strawberries: 11.2%
0811.20: Raspberries, blackberries, mulberries…4.5–9%
0811.90: Other:
0811.90.10: Bananas and plantains: 3.4%
0811.90.20: Blueberries: Free
0811.90.52: Mangoes: 10.9%
0811.90.80: Other: 14.5%
Nature’s Touch timely protested on October 30, 2019, claiming that the frozen
fruit mixtures should instead be classified under subheading 2106.90.98, HTSUS, as
“Food preparations not elsewhere specified or included: Other: Other; Other; Other;
Other; Other.” 2106.90.98, HTSUS; Summons at 1–2, ECF No. 1. The relevant
1 Although the Government in general argues in support of the HTSUS classifications used
by Customs at liquidation, the Government seeks classification under a higher-duty provision
than the one used at liquidation for two of Nature’s Touch’s products. See Def.’s Br. at 23,
28, ECF No. 36. These are Organic Triple Berry with Kale (liquidated in subheading
0811.90.52 at 10.9%, classification sought in 0811.90.80 at 14.5%) and a single entry of
Blueberry Blitz in Entry No. MK8-5346590 (liquidated in subheading 0811.90.20 duty free,
classification sought in 0811.90.80 at 14.5%). The Government notes that “due to the
procedural posture of this case,” it will not seek to amend its answer to claim any duties owed;
but rather it is “advancing the correct classification of [these products] in order to aid the
Court in fulfilling its statutory mandate to classify the merchandise at issue under the correct
provision of the tariff statute[.]” Id. at 23–24, n.7.
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provisions and duty rates of HTSUS Chapter 21, which covers “Miscellaneous Edible
Preparations,” read:
2106: Food preparations not elsewhere specified or included:
2106.90: Other:
Other:
Other:
Other:
Other:
2106.90.98: Other…6.4%
Nature’s Touch’s protest further claimed that the merchandise was eligible for duty-
free treatment under the North American Free Trade Agreement (NAFTA).
Summons at 2, ECF No. 1.
That protest was deemed denied on July 4, 2020, and Nature’s Touch filed a
summons and complaint challenging Customs’ classification on July 15, 2020. Id. at
1–2; Compl., ECF No. 5. Nature’s Touch later moved for summary judgment with an
accompanying brief. See Pl.’s Memo in Supp. of Its Mot. for Summ. J. (Pl.’s Br.), ECF
No. 28. The Government filed a cross-motion for summary judgment. Def.’s Memo
in Opp’n to Pl.’s Mot. for Summ. J. and in Supp. of Def.’s Cross-Mot. for Summ. J.
(Def.’s Br.), ECF No. 36. Thereafter, Nature’s Touch and the Government filed reply
briefs in support of their Motions. See Pl.’s Reply Br. in Supp. of Its Mot. for Summ.
J. (Pl.’s Reply), ECF No. 30; Def.’s Reply Memo in Furth. Supp. of Def.’s Cross-Mot.
for Summ. J. (Def.’s Reply), ECF No. 31.
The classification at issue was not the first time Customs had classified
Nature’s Touch’s mixture products. In a prior ruling, HQ H307154, dated February
Court No. 1:20-cv-00131 Page 5
7, 2020, Customs classified two such products, one consisting of 25% strawberry, 25%
blueberry, 25% blackberry, and 25% raspberry and the other of 34% mango, 33%
raspberry, and 33% cherry. See HQ H307154 at 4; see also Def.’s Br. at 24, ECF No.
36. There, Customs determined that both mixtures were described by HTSUS
0811.90.80, as “Fruit . . . frozen: Other: Other” applying HTSUS General Rule of
Interpretation 1, which requires that “classification shall be determined according to
the terms of the headings[.]” See HQ H307154 at 4; GRI 1, HTSUS.
However, for the merchandise at issue here, Customs changed its position.
Rather than classify all of the merchandise as “Fruit . . . frozen: Other: Other,”
Customs employed an alternative methodology and classified the mixtures into
different subheadings depending on the ingredients in each mixture. See Def.’s Br.
at 1–2, ECF No. 36; see also Def.’s Resp. Facts ¶¶ 11–24, ECF No. 36. In defending
Customs’ classification, the Government explained that none of heading 0811’s
subheadings described mixture products, including subheading 0811.90.80, HTSUS
(“Fruit . . . frozen: Other: Other”). See Def.’s Br. at 18, 26, ECF No. 36. The
Government instead argues that each mixture should be classified by considering the
subheadings that cover the mixture’s specific fruit ingredients and choosing the
subheading that comes last in numerical order, applying HTSUS General Rule of
Interpretation 3(c).2 See id. at 20–21, 27. The Government disavowed its prior
2That methodology still classified certain products into HTSUS 0811.90.80 (“Fruit . . . frozen:
Other: Other”) because, if a mixture contained an ingredient not enumerated by a
Court No. 1:20-cv-00131 Page 6
classification methodology and wrote that HQ H307154 “employed an incorrect
reasoning” when it determined that frozen fruit mixtures could be classified under
HTSUS 0811.90.80 as “Fruit . . . frozen: Other: Other.” Def.’s Br. at 24, ECF No. 36.
Nature’s Touch rejected both of these methodologies and instead argues that all the
mixtures are described by the terms of 2106.90.98, HTSUS, covering “Food
preparations not elsewhere specified or included: Other: Other: Other: Other: Other:
Other.” Pl.’s Br. at 2–3, ECF No. 28.
On February 16, 2023, the Court held a status conference and issued an Order
requiring the parties to submit supplemental briefing. See Order, ECF No. 42. The
Supplemental Briefing Order asked the parties to address whether all of the
merchandise at issue could be classified under 0811.90.80, HTSUS (“Fruit . . . frozen:
Other: Other”). The parties filed supplemental briefs in support of their positions,
and both Nature’s Touch and the Government continue to argue that subheading
0811.90.80, HTSUS, does not describe the mixtures. See Def.’s Supplemental Brief,
ECF No. 44; Pl.’s Supplemental Brief, ECF No. 46.
II. Description of Subject Merchandise
The following facts are taken from the parties’ Statements of Undisputed
Material Facts or are otherwise on the record and undisputed. The subject
merchandise consists of fourteen frozen fruit mixture products, five of which also
subheading, such as “peaches,” then “Other” became the ingredient subheading that came
last in numerical order. See Def.’s Br. at 21, ECF No. 36.
Court No. 1:20-cv-00131 Page 7
contain frozen vegetable ingredients. Pl.’s Facts ¶¶ 10–24, ECF No. 28; Def.’s Resp.
Facts ¶¶ 10–24, ECF No. 36. Nature’s Touch produces the mixtures by importing
fruits and vegetables from around the world to its Abbotsford, Canada facility, where
they are cleaned, combined, and packaged for export to the United States. Pl.’s Facts
¶¶ 4–6, ECF No. 28; Def.’s Resp. Facts ¶¶ 4–6, ECF No. 36. With the exception of
certain blueberries, all of the fruit and vegetables in the subject mixtures arrive at
Nature’s Touch’s facility already cut and frozen. Defendant’s Statement of Additional
Undisputed Material Facts ¶ 6, ECF No. 36; Plaintiff’s Response to Defendant’s 56.3
Statement (Pl.’s Resp. to Def.’s 56.3 Statement) ¶ 6, ECF No. 30. Consumers use the
mixtures for a variety of purposes, such as to make smoothies, sauces, chutneys,
punches, dips, baked goods, and fruit salads; or they may thaw and eat the mixtures
directly. Pl.’s Facts ¶¶ 34, 45, ECF No. 28; Def.’s Resp. Facts ¶¶ 34, 45, ECF No. 36.
However, “[n]ew applications for the products at issue may be developed based on
customer usage,” and Nature’s Touch “does not know how a customer will ultimately
use the products at issue.” Pl.’s Resp. to Def.’s 56.3 Statement, ¶¶ 12–13, ECF No.
30.
The mixtures contain no ingredients other than frozen fruit and vegetables,
and the specific combinations of fruit and vegetables within each product are as
follows:3
3See Defendant’s Statement of Additional Undisputed Material Facts ¶¶ 3–5, ECF No. 36;
Pl.’s Resp. to Def.’s 56.3 Statement ¶¶ 3–5, ECF No. 30. Plaintiff’s Response accepts
Court No. 1:20-cv-00131 Page 8
All-Fruit Mixtures:
(1) Frozen Strawberry/Banana: 52% strawberry, 48% banana
(2) Frozen Berry Mix: 22% blueberry, 32% strawberry, 28% blackberry,
18% raspberry
(3) Frozen Triple Berry: 34% blueberry, 33% blackberry, 33% raspberry
(4) Organic Mixed Berry: 35% strawberry, 25% blackberry, 25% blueberry,
15% raspberry
(5) Organic Very Berry Burst: 30% strawberry, 30% blackberry, 30%
blueberry, 10% raspberry
(6) Organic Strawberry/Blueberry/Mango: 34% strawberry, 33% blueberry,
33% mango
(7) Organic Tropical Blend: 34% strawberry, 33% mango, 33% pineapple
(8) Antioxidant Blend Frozen: 30% strawberry, 20% cherry, 20%
pomegranate, 15% blueberry, 15% raspberry
(9) Frozen Medley Mixed Fruit: 35% strawberry, 25% peach, 15%
pineapple, 15% mango, 10% grapes
Fruit-and-Vegetable Mixtures:
(10) Organic Green Mango Medley: 18% strawberry, 25% banana, 35%
mango, 22% kale
(11) Organic Tropical Fruit and Greens: 46% pineapple, 37% mango, 8.5%
spinach, 8.5% kale
(12) Organic Strawberry/Cherry/Kale: 34% strawberry, 33% cherry, 33%
kale
(13) Organic Triple Berry with Kale: 27% blueberry, 20% blackberry, 23%
apple, 15% raspberry, 15% kale
Defendant’s statement of ingredient proportions for each product and notes that “proportions
of products in mixtures are subject to occasional variations.” Id. ¶¶ 3-4.
Court No. 1:20-cv-00131 Page 9
(14) Blueberry Blitz: 40% blueberry, 20% blackberry, 25% apple, 15%
butternut squash
JURISDICTION AND STANDARD OF REVIEW
The parties have not disputed Nature’s Touch’s fulfillment of the prerequisites
for initiating this action. See 28 U.S.C. § 2637(a). Because Nature’s Touch contests
Customs’ denial of its protests against the tariff classification of its merchandise,
jurisdiction is proper pursuant to 28 U.S.C. § 1581(a) (“The Court of International
Trade shall have exclusive jurisdiction of any civil action commenced to contest the
denial of a protest, in whole or in part …”). The Court reviews Customs’ denial of
Nature’s Touch’s protest de novo. See Rheem Metalurgica S/A v. United States, 951
F. Supp. 241, 246 (CIT 1996), aff’d, 160 F.3d 1357 (Fed. Cir. 1998). Although
Customs’ decision is presumed correct and “[t]he burden of proving otherwise shall
rest upon the party challenging such decision,” the Court’s “duty is to find the correct
result.” 28 U.S.C. § 2639(a)(1); Jarvis Clark Co. v. United States, 733 F.2d 873, 878
(Fed. Cir. 1984) (Wisdom, J.).
Rule 56 of the United States Court of International Trade provides that
summary judgment may be granted “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” USCIT Rule 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (interpreting the analogous provision of the Federal Rules
Court No. 1:20-cv-00131 Page 10
of Civil Procedure). In a tariff classification dispute, summary judgment is
appropriate where “there is no genuine dispute as to the nature of the merchandise
and the classification turns on the proper meaning and scope of the relevant tariff
provisions.” Deckers Outdoor Corp. v. United States, 714 F.3d 1363, 1371 (Fed. Cir.
2013) (citing Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1366 (Fed. Cir.
1998)). In ascertaining whether a genuine, material issue of fact exists, a Court
reviews evidence submitted, in this case from the Statements of Undisputed Material
Facts, drawing all inferences against the moving party. See Matsushita Elecs. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The movant bears the burden of
demonstrating that there exists no genuine issue of material fact that would warrant
a trial. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). At summary
judgment, “the judge’s function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial.”
Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986); see also Ford Motor Co. v. United
States, 157 F.3d 849, 854 (Fed. Cir. 1998).
DISCUSSION
I. Legal Framework for Tariff Classification Under the HTSUS
The HTSUS is organized into headings, each of which contains one or more
subheadings. The headings describe general categories of merchandise, and the
subheadings “provide a more particularized segregation of goods within each
category.” Orlando Food Corp. v. United States, 140 F.3d 1437, 1439 (Fed. Cir. 1998).
Court No. 1:20-cv-00131 Page 11
The Court follows a strict order of operations when deciding HTSUS classification
cases, which is set out in the General Rules of Interpretation (GRIs) of the HTSUS.
The first task is to classify the merchandise into the correct HTSUS heading by
construing the language of the headings. Id. at 1440. This is done by applying GRI
1, which provides that “classification shall be determined according to the terms of
the headings and any relative section or chapter notes.” GRI 1, HTSUS. A product
is classifiable under GRI 1 if it “is described in whole by a single classification
heading” of the HTSUS. La Crosse Tech., Ltd. v. United States, 723 F.3d 1353, 1358
(Fed. Cir. 2013) (quoting CamelBak Prods., LLC v. United States, 649 F.3d 1361, 1364
(Fed. Cir. 2011)). If no heading describes the product in whole, the Court may proceed
to GRIs 2 through 5, in order, only proceeding to the next GRI if the previous GRI
cannot classify the product. See Mita Copystar Am. v. United States, 160 F.3d 710,
712 (Fed. Cir. 1998); Wilton Indus. v. United States, 741 F.3d 1263, 1266 (Fed. Cir.
2013). “[I]f the proper heading can be determined under GRI 1, the court is not to
look to the subsequent GRIs.” R.T. Foods, Inc. v. United States, 757 F.3d 1349, 1353
(Fed. Cir. 2014).
GRI 2 provides that the classification of “goods consisting of more than one
material or substance” shall be according to the principles of GRI 3. GRI 2, HTSUS.
Under GRI 3(a), goods are classified into “[t]he heading which provides the most
specific description”; but if multiple headings “each refer to part only of the materials
or substances contained in [a mixed good],” they are regarded as equally specific and
Court No. 1:20-cv-00131 Page 12
the Court moves to GRI 3(b) by classifying the good according to the material that
gives the good its “essential character.” GRI 3, HTSUS. If no essential character can
be found, then the good is classified pursuant to GRI 3(c), “under the heading which
occurs last in numerical order among those which equally merit consideration.” Id.After using the GRIs to determine the correct heading, the Court determines the
correct HTSUS subheading using GRI 6, which directs that GRIs 1 through 5 be re-
applied at the subheading level. GRI 6, HTSUS. “Only after determining that a
product is classifiable under the heading should the court look to the subheadings to
find the correct classification for the merchandise.” Orlando Food, 140 F.3d at 1440.
“Absent contrary legislative intent, HTSUS terms are to be construed
according to their common and commercial meanings, which are presumed to be the
same.” Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999). The
common meaning of a tariff term is a question of law to be decided by the Court. E.M.
Chems. v. United States, 920 F.2d 910, 912 (Fed. Cir. 1990) (citing Stewart-Warner
Corp. v. United States, 748 F.2d 663, 664–65 (Fed. Cir. 1984)). When a tariff term is
not clearly defined, the Court “may consult lexicographic and scientific authorities,
dictionaries, and other reliable information” or may rely on its “own understanding
of the terms used.” Baxter Healthcare Corp. v. United States, 182 F.3d 1333, 1337–
38 (Fed. Cir. 1999). The Court may also consult the Explanatory Notes for the
Harmonized Commodity Description and Coding System, which are maintained by
the World Customs Organization. Although not legally binding, the Explanatory
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Notes “are generally indicative of the proper interpretation of a tariff provision.”
Degussa Corp. v. United States, 508 F.3d 1044, 1047 (Fed. Cir. 2007) (citing Motorola
Inc. v. United States, 436 F.3d 1357, 1361 (Fed. Cir. 2006)).
II. Classification of the Subject Merchandise
A. Summary
The nine all-fruit mixtures are properly classified into heading 0811, HTSUS
pursuant to GRI 1 because the term “Fruit . . . frozen” describes these products in
whole. The common meaning of “fruit” includes mixed fruit — as in the phrase “a
bowl of fruit” — so that it is unnecessary for the heading to enumerate fruit mixtures
in order to cover them. Nature’s Touch’s arguments to the contrary are improper
because they require inferring from the lack of a subheading enumerating mixtures
within 0811 that the heading does not cover mixtures, in violation of binding
precedent that subheadings may not be considered until after the proper heading is
chosen.
However, the term “Fruit . . . frozen” does not describe the five mixtures that
contain vegetable ingredients because these products contain features substantially
in excess of those within the common meaning of the term. This requires the Court
to consider whether Nature’s Touch’s preferred heading, 2106, HTSUS (“Food
preparations not otherwise specified or included”) describes the fruit-and-vegetable
mixtures pursuant to GRI 1. The Court concludes that it does not. It first finds that
food preparations must undergo processing additional to what is already inherent to
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the term “food” to avoid rendering “preparations” mere surplusage. The Court then
considers whether cutting, freezing, and combining fruits and vegetables is sufficient
to turn these ingredients into food preparations. It holds that these steps are
insufficient because the Explanatory Note to heading 2106, HTSUS operates to
exclude mixtures of cut fruits and vegetables from the heading if they are consumed
as such and because both case law and the structure of the HTSUS distinguish
between freezing and preparation. Having eliminated the candidate GRI 1 headings,
the Court instead classifies the fruit-and-vegetable mixtures into heading 0811 under
GRI 3(b) because it finds that the fruit content predominates and supplies the
essential character of these mixtures.
Finally, all of the subject mixtures are properly classified into the basket
subheading 0811.90.80, “Other,” pursuant to GRI 1. The Court rejects the arguments
of both parties that the subheading excludes mixtures because it does not explicitly
enumerate them and instead finds that the plain meaning of “Other” describes
products, including the subject merchandise, that cannot be described in whole by the
terms of the other subheadings within the proper heading. In seeking to require that
basket subheadings specifically enumerate mixtures in order to include them, the
Government adopts an interpretive method at odds with both the plain meaning of
“Other” and with its own position that such enumeration is unnecessary for heading
0811 to cover mixtures. The Court declines the parties’ invitation to read exclusions
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into tariff provisions that are absent from their text or to apply different
interpretative rules when construing subheadings rather than headings.
B. Application of the GRIs to Determine the Correct Heading
The threshold issue in this case is whether the merchandise is properly
classified in HTSUS heading 0811 as “Fruit . . . frozen,” because Nature’s Touch’s
proposed alternative classification, HTSUS heading 2106, is a basket provision that
applies to “Food preparations not elsewhere specified or included.” 2106, HTSUS
(emphasis added). Classification of imported merchandise in a basket provision, like
2106, “is only appropriate if there is no tariff category that covers the merchandise
more specifically.” R.T. Foods, 757 F.3d at 1354 (quoting Rollerblade, Inc. v. United
States, 116 F. Supp. 2d 1247, 1251 (CIT 2000), aff’d, 282 F.3d 1349 (Fed. Cir. 2002)).
Therefore, the Court first will apply GRI 1 to determine whether the merchandise
can be classified as “Fruit . . . frozen” under heading 0811. The Court considers the
nine all-fruit mixtures separately from the five fruit-and-vegetable mixtures.
1. The All-Fruit Mixtures
Under GRI 1, the Court first asks whether the nine all-fruit mixtures are
“described in whole” by the terms of heading 0811 — that is, whether they are “Fruit
. . . frozen[.]” CamelBak Prods., 649 F.3d at 1364; see 0811, HTSUS. Nature’s Touch
claims that they are not because the term “fruit,” as used in the heading, should be
read to refer only to individual types of fruit and to exclude mixed fruits. See Pl.’s Br.
at 12, ECF No. 28. Nature’s Touch concedes that heading 0811, taken by itself, could
Court No. 1:20-cv-00131 Page 16
potentially classify the mixtures. Oral Arg. Tr. 17:18–19, ECF No. 39 (Peterson: “I
mean, we concede that 0811 is potentially applicable to our product.”). However,
Nature’s Touch claims that the heading should be construed in light of its
subheadings, which do not specifically provide for mixtures and list only individual
types of fruit, such as “Blueberries” or “Mangoes.” See Pl.’s Br. at 11–12, ECF No. 28;
see also Oral Arg. Tr. 7:4–8, ECF No. 39 (Peterson: “[I]f you look at heading 0811, you
will see that they provide for fruits. And they provide in various eight-digit
subheadings for individually named fruit. At no point does that provision contain a
mixtures provision.”). Nature’s Touch contrasts this with other HTSUS headings and
subheadings that expressly cover “mixtures” and infers that the omission of the term
“mixtures” from heading 0811 and its subheadings must be read as intentional. See
Pl.’s Br. at 13–14, ECF No. 28. For example, Nature’s Touch cites several
subheadings in Chapter 7 HTSUS that specifically provide for vegetable mixtures.
See Id. at 13 (noting, among others, subheading 0710.90 providing for “[m]ixtures of
vegetables.”). Nature’s Touch therefore concludes that, “[w]here the HTSUS intends
to include mixtures of frozen food in tariff classifications, the plain language of the
headings clearly provides for mixtures” and that “frozen fruit mixtures do not meet
the plain language requirements for classification in Heading 0811, HTSUS.” Id. at
12-13.
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The Government, however, argues that heading 0811 is an eo nomine provision
— that is, one that “describes the merchandise by name, not by use.”4 Carl Zeiss, 195
F.3d at 1379. Under well-established case law, eo nomine provisions are interpreted
to “include[] all forms of the named article, even improved forms,” and as long as the
product does not “possess features substantially in excess of those within the common
meaning of the term,” it will be covered by the provision that names it. CamelBak
Prods., 649 F.3d at 1364–65 (citing Casio, Inc. v. United States, 73 F.3d 1095, 1098
(Fed. Cir. 1996)) (internal quotation marks omitted). The Government notes that the
common meaning of the term “fruit” includes mixtures of different fruits, as in the
phrase “a bowl of fruit.” Def.’s Br. at 13, ECF No. 36. The Government therefore
concludes that the term “Fruit . . . frozen” describes the all-fruit mixtures in whole.
The Government is correct. Heading 0811 is an eo nomine provision that
describes frozen fruit by name and includes mixtures of frozen fruit. Although the
term “fruit” is not discussed in either the HTSUS chapter notes or the Explanatory
Notes, the common meaning of the term “fruit” embraces mixed fruits and does not
imply a limitation to individual types of fruit. That fact should be plain to anyone
4 Nature’s Touch’s briefs do not dispute that heading 0811 is an eo nomine provision. See,
e.g., Pl.’s Resp. at 8, ECF No. 30 (arguing that “[a]n eo nomine tariff classification does not
embrace mixtures.”). At oral argument, Nature’s Touch abandoned this posture and
attempted to argue that the term “fruit” in heading 0811 was not an eo nomine term but
rather a “general description term.” Oral Arg. Tr. 14:14–15, ECF No. 39. Because Nature’s
Touch failed to raise this issue in its briefs, the argument is forfeited. See McIntosh v.
Department of Defense, 53 F.4th 630, 641 (Fed. Cir. 2022). Were it not forfeited, the Court,
as stated above, confirms the provision is an eo nomine term.
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who has kept a “bowl of fruit” in their kitchen, ordered a “fruit plate” in a restaurant,
or navigated to the “frozen fruit” aisle in a grocery store and selected one of Nature’s
Touch’s mixtures. Dictionary definitions of “fruit” confirm that the term has a plural
meaning that denotes, roughly, “fruits in general.” See, e.g., Fruit, Oxford English
Dictionary (2d ed. 1989) (“Vegetable products in general, that are fit to be used as
food by men and animals.”); Fruit, CollinsDictionary.com,
https://www.collinsdictionary.com/us/dictionary/english/fruit (last visited May 8,
2023) (noting that “[t]he plural form is usually fruit, but can also be fruits”); Fruit,
American Heritage Dictionary (3d ed. 1996) (plural “fruit or fruits”); Fruit, Webster’s
New International Dictionary (2d ed. 1956) (“Collectively, a dish, a selection, a diet,
of fruits”). The Court concludes that the common meaning of the term “fruit,” as used
in heading 0811, refers generally to fruit of all kinds and is not limited to individual
fruit. It therefore includes mixed fruit.
Nature’s Touch’s method of construing the language of the heading in light of
its subheadings impermissibly scrambles the order of operations for tariff
classification. The Court must determine the correct heading “without reference to
[its] subheadings . . . . ” R.T. Foods, 757 F.3d at 1353; see also Orlando Food, 140
F.3d at 1440 (“Only after determining that a product is classifiable under the heading
should the court look to the subheadings to find the correct classification for the
merchandise.”). Once the correct heading has been determined, the Court continues
its analysis by choosing a subheading contained within that heading. It may not hop
Court No. 1:20-cv-00131 Page 19
out of the heading and restart the process because it believes the available
subheadings are inadequate, as Nature’s Touch suggests. See Oral Arg. Tr. 22:22–
23:2, ECF No. 39 (Peterson: “Now, let’s say we’ve gone through 0811. There is no
provision in there prescribing a rate of duty for mixtures of frozen fruit . . . you are
commanded by [GRI 1] to see if there is any other way, any other provision that
classifies these goods at the GRI 1 level.”). Rather, “[o]nce the Court chooses the
proper heading, the Court is limited to choosing a subheading only from within the
proper heading, i.e., the subheadings appearing under other headings become
irrelevant for the classification of the merchandise at issue.” Witex, U.S.A., Inc. v.
United States, 353 F. Supp. 2d 1310, 1315-16 (CIT 2004).
Nature’s Touch argues that, unless the plain language of the heading
specifically provides for mixtures, the heading cannot cover them. Pl.’s Br. at 13, ECF
No. 28. This interpretive method requires ignoring binding precedent that headings
must be chosen without any reference to subheadings. To take Nature’s Touch’s own
example, subheading 0710.90, providing for frozen mixed vegetables, is contained
within heading 0710, which itself makes no mention of mixtures and provides only
for “Vegetables . . . frozen.” 0710, HTSUS. They are organized in the HTSUS as:
0710: Vegetables (uncooked or cooked by steaming or boiling in water),
frozen:
0710.90: Mixtures of vegetables
Because the subheading cannot inform the interpretation of the heading, a frozen
mixed vegetable product could only be properly classified in heading 0710 if it is
Court No. 1:20-cv-00131 Page 20
interpreted to include mixtures despite its text not expressly providing for them.
Nature’s Touch is therefore incorrect when it states that “[w]here the HTSUS intends
to include mixtures of frozen food in tariff classifications, the plain language of the
headings clearly provides for mixtures.” Pl.’s Br. at 13, ECF No. 28. Rather, as the
Government correctly argues, “a broad eo nomine term can cover mixtures, even if
not explicitly stated in the text.” Def.’s Br. at 16, ECF No. 36.
Nature’s Touch contends that an eo nomine provision cannot be expanded “to
include something mixed or joined with the named article, which is not that named
article,” noting that an eo nomine provision for strawberries will include all forms of
strawberries but not a mixture of strawberries and blueberries. Pl.’s Reply at 8, 9,
ECF No. 30. This argument is unavailing where all of the articles are themselves
frozen fruit. A mixture of frozen strawberries and frozen blueberries does not
“possess features substantially in excess of those within the common meaning” of the
terms of heading 0811 — it is frozen fruit. Casio, 73 F.3d at 1098 (quoting United
Carr Fastener Corp. v. United States, 54 CCPA 89, 91 (1967)) (internal quotation
marks omitted). Because the nine all-fruit frozen mixture products are described in
whole by the term “Fruit . . . frozen,” they are classified in heading 0811 by operation
of GRI 1.
Court No. 1:20-cv-00131 Page 21
2. The Fruit-and-Vegetable Mixtures
(a) Application of GRI 1
The Court next must determine whether the remaining five mixture products,
which contain both fruit and vegetable ingredients, are described in whole by the
term “Fruit . . . frozen[.]” Pl.’s Facts ¶¶ 11–24, ECF No. 28; Def.’s Resp. Facts ¶¶ 11–
24, ECF No. 36. The Court finds that they are not; therefore, GRI 1 cannot classify
them into heading 0811. The Court is mindful that a product may contain materials
that are not named by an eo nomine provision and still be classified into that provision
under GRI 1 as long as those materials do not trigger a “change in identity” of the
product. CamelBak Prods., 649 F.3d at 1365. To determine whether a change in
identity has occurred, the Court asks whether the product contains features
substantially in excess of those within the common meaning of the term “Fruit . . .
frozen.” See Casio, 73 F.3d at 1098. The Court may look to a variety of factors,
including commercial factors such as the marketing of the product in question. See
CamelBak Prods., 649 F.3d at 1369 (finding that the products contained features
substantially in excess of “backpacks,” in part, because they “are commercially
known, advertised and sold as ‘hydration packs.’”).
Here, the Court finds that the fruit-and-vegetable mixtures contain features
substantially in excess of frozen fruit. In addition to comprising between 15% and
33% of the mixtures’ total content by weight, the vegetable content of these mixtures
forms a significant part of the products’ commercial identity. Nature’s Touch
Court No. 1:20-cv-00131 Page 22
references the vegetable ingredients in the names of four of the five products and
prominently features vegetables on the packaging of at least four of those products.
Pl.’s Facts ¶¶ 14, 16, 19, 21, ECF No. 28; Def.’s Resp. Facts ¶¶ 14, 16, 19, 21, ECF
No. 36 (referencing product names “Organic Green Mango Medley,” “Organic Tropical
Fruit and Greens,” “Organic Strawberry/Cherry/Kale,” and “Organic Triple Berry
with Kale”);5 Pl.’s Br. at Ex. D, ECF No. 28 (depicting the retail packaging for all
products except “Organic Tropical Fruit and Greens”).6 The vegetable ingredients
are therefore substantially in excess of frozen fruit, and the mixtures are not
classifiable through GRI 1 into an eo nomine provision for “Fruit . . . frozen[.]”
At this point, the Government argues that the fruit-and-vegetable mixtures
should be classified as “Fruit . . . frozen” using a GRI 3(b) essential character analysis.
See Def.’s Br. at 25–26, ECF No. 36. But GRI 3 may only be reached if the terms of
all available headings do not describe the product, eliminating all GRI 1 possibilities.
See Mita Copystar, 160 F.3d at 712 (“As GRI 1 expressly provides, the other GRI
provisions may be consulted only if the headings and notes ‘do not otherwise require’
5 Plaintiff and Defendant both reference a “Blueberry Blitz” product containing 15%
butternut squash, a vegetable ingredient. Pl.’s Facts ¶ 15, ECF No. 28; Def.’s Resp. Facts ¶
15, ECF No. 36. Although the vegetable content is not referenced in the name of the product,
the Court nonetheless finds that this content is prominently displayed in the product’s
marketing and is significant enough to render the ingredients substantially in excess of fruit.
See Pl.’s Br. at Ex. D, ECF No. 28 (demonstrating that butternut squash is featured on the
product’s packaging).
6 At oral argument, the parties stipulated that Exhibit D was an accurate reflection of the
products’ retail packaging. Oral Arg. Tr. 5:16–6:2, ECF No. 39; see also Def.’s Resp. Facts ¶
7, ECF No. 36 (accepting same).
Court No. 1:20-cv-00131 Page 23
a particular classification.”) (quoting GRI 1, HTSUS). The Court must therefore ask
whether these mixtures are described by the terms of heading 2106, “Food
preparations not otherwise specified or included.” 2106, HTSUS. The Court holds
that they are not.
Because it is undisputed that the mixtures at issue are “food,” the Court’s
inquiry turns on the meaning of “preparations” as used in heading 2106. “The term
‘preparation’ is not defined in the HTSUS or the General Rules of Interpretation.”
BASF Corp. v. United States, 29 C.I.T. 681, 691 (2005). The Federal Circuit has found
that “[i]nherent in the term ‘preparation’ is the notion that the object involved is
destined for a specific use.” Orlando Food, 140 F.3d at 1441 (citing the Oxford
English Dictionary (2d ed. 1989) definition of “preparation” as “a substance specially
prepared, or made up for its appropriate use or application, e.g. as food or medicine,
or in the arts or sciences.”). However, for the purposes of the HTSUS, use as food is
not, by itself, sufficient to turn a product into a “food preparation.” “Products are not
classifiable under heading 2106, HTSUS, merely because they are specifically made
for use in food.” Mondelez Global LLC v. United States, 253 F. Supp. 3d 1329, 1332
(CIT 2017) (finding that an article must be both “food” and a “preparation”). For a
product to qualify as a “food preparation,” it must undergo processing additional to
what is already inherent in the term “food,” otherwise the term “preparation” would
become mere surplusage. “It is our duty ‘to give effect, if possible, to every clause and
word of a statute[.]’” United States v. Menasche, 348 U.S. 528, 538–39 (1955) (quoting
Court No. 1:20-cv-00131 Page 24
Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)). Nature’s Touch is therefore
incorrect when it argues that the mixtures are food preparations because they are
“specially prepared for multiple appropriate uses and applications as food.” Pl.’s Br.
at 18, ECF No. 28. Nature’s Touch is also incorrect when it attempts to read
“preparation” out of the heading entirely by arguing that “[t]here is no required,
minimum or mandated type of ‘preparation’ required for a product to be classified
under heading 2106, HTSUS.” Pl.’s Reply at 14–15, ECF No. 30. The Court declines
to read “food preparation” as “food.”
Nature’s Touch emphasizes the many processing operations it performs on the
mixtures, describing such activities as recipe design, cleaning, sorting, inspection,
packaging, and readying for importation and sale as “preparation.” Pl.’s Br. at 5, 19–
21, ECF No. 28. Yet recipe design is product development, not a step to prepare or
process food. See Def.’s Br. at 36–37, ECF No. 36. The other operations are common
to all commercial food products, which must necessarily be cleaned, sorted, inspected,
packed, and readied for sale. See id. at 34. Because the Court is compelled to read
“preparation” as requiring more than what is already inherent to “food,” these steps
are insufficient to turn Nature’s Touch’s mixtures into food preparations. Rather,
fruit and vegetable ingredients undergo three processing steps that turn them into
Nature’s Touch’s unique products: cutting,7 freezing, and combining. See Pl.’s Br. at
7 Nature’s Touch refers to ingredients being “reduced in size” and offers the example of
“chopped pineapples or melons.” Pl.’s Br. at 4, ECF No. 28; see also Pl.’s Resp. to Def.’s 56.3
Court No. 1:20-cv-00131 Page 25
4–5, ECF No. 28; Def.’s Resp. Facts ¶ 5–6, ECF No. 36; see also Pl.’s Resp. to Def.’s
56.3 Statement ¶ 5–8, ECF No. 30 (recounting processing steps and agreeing that
“[o]nce frozen, the individual pieces of fruit in the products undergo no further change
in character prior to the products’ retail sale.”). The Court therefore considers
whether these operations are sufficient to create a “food preparation” within the
meaning of HTSUS heading 2106.
The Government argues that they are not, pointing out that the Explanatory
Note to heading 2106 lists exemplar products that “require significant processing
beyond simply mixing fresh food ingredients.” Def.’s Br. at 30, ECF No. 36. Although
the Explanatory Note does not expressly define “preparation,” it does list exemplars
of “food preparations” that fall within the heading.8 See Explanatory Note 21.06 –
Food preparations not elsewhere specified or included. The qualities shared by such
exemplar products may be used by courts to derive the meaning of the HTSUS
heading. See, e.g., Schlumberger Tech. Corp. v. United States, 845 F.3d 1158, 1165-
Statement ¶ 6, ECF No. 30 (agreeing that “all of the fruit and vegetables in the products at
issue arrive at plaintiff’s packaging facility already cut and frozen.”).
8 Explanatory Note 21.06 sets forth two categories of food preparations covered by heading
2106, but neither supplies a definition of the term “preparation.” They are:
(A) Preparations for use, either directly or after processing (such as cooking, dissolving
or boiling in water, milk, etc.), for human consumption.
(B) Preparations consisting wholly or partly of foodstuffs, used in the making of
beverages or food preparations for human consumption. The heading includes
preparations consisting of mixtures of chemicals (organic acids, calcium salts, etc.)
with foodstuffs (flour, sugar, milk powder, etc.), for incorporation in food
preparations either as ingredients or to improve some of their characteristics
(appearance, keeping qualities, etc.)
Court No. 1:20-cv-00131 Page 26
66 (Fed. Cir. 2017) (finding that the products listed by the Explanatory Note for a
heading covering “ceramic wares” all had “definite forms” and because the granulated
bauxite in question “does not have a definite form, it cannot fall within that Heading’s
terms.”). The Government is correct that most of these exemplar products require
significant processing, such as “Flavouring powders for making beverages,” “Protein
hydrolysates consisting mainly of a mixture of amino-acids and sodium chloride,” and
“Edible tablets with a basis of natural or artificial perfumes.” Explanatory Note 21.06
(2), (6), (8). However, certain exemplar products do not indicate on their face whether
or not they require significant processing. See, e.g., Explanatory Note 21.06 (5)
(listing “Natural honey enriched with bees’ royal jelly”). The Court therefore will not
attempt a nebulous inquiry into the intensity or significance of the processing a
product must undergo to become a food preparation but rather will look to the way
the processing steps specific to Nature’s Touch’s products — cutting, freezing, and
combining fruits and vegetables — are treated in the HTSUS, the Explanatory Notes,
and case law.
The Explanatory Note to heading 2106 excludes mixtures of cut fruits and
vegetables from heading 2106 if they are fit for consumption “as such.” Explanatory
Note 21.06 (15) describes an exemplar food preparation consisting of:
Mixtures of plants, parts of plants, seeds or fruit (whole,
cut, crushed, ground or powdered) of species falling in
different Chapters (e.g. Chapters 7, 9, 11, 12) or of different
species falling in heading 12.11, not consumed as such, but
Court No. 1:20-cv-00131 Page 27
of a kind used either directly for flavouring beverages or for
preparing extracts for the manufacture of beverages.
Explanatory Note 21.06 (15) (emphasis added). The Explanatory Note’s exclusion of
plant or fruit mixtures that can be consumed independently reflects a specific intent
to remove products similar to the mixtures at issue from heading 2106. See Pl.’s Resp.
to Def.’s 56.3 Statement ¶ 11, ECF No. 30 (agreeing that consumers “eat [the
mixtures] directly”). The Court therefore concludes that cutting and combining fruits
and vegetables is insufficient to turn these ingredients into a “food preparation.” If
it were, the drafters of the Explanatory Notes would not have bothered to insert
language prohibiting the application of heading 2106 to such mixtures.
The Court is left to determine whether freezing an otherwise excluded mixture
of cut fruits and vegetables turns it into a “food preparation.” The Court is
unpersuaded. Case law and the HTSUS distinguish between “prepared” foods and
“frozen” foods. In Frosted Fruit Products Co. v. United States, 18 Cust. Ct. 119 (1947),
the Customs Court held that frozen guavas that had been trimmed, cleaned, and
packed in boxes “are not ‘prepared,’ in a tariff sense” and declined to classify them as
“guavas prepared or preserved.” Id. at 121. That holding has been repeatedly
extended. See Interocean Chem. & Minerals Corp. v. United States, 13 C.I.T. 449, 453
(1989) (“[I]t has been held that freezing, being a temporary preservation[,] is neither
a preparation nor a preservation for tariff purposes.”); see also Crawfish Processors
Alliance v. United States, 30 C.I.T. 639, 645 (2006) (noting that “Frosted Fruit made
Court No. 1:20-cv-00131 Page 28
it clear that more is necessary than freezing to make something prepared or
preserved.”). This is reflected in the structure of the HTSUS. For example, Chapter
20, HTSUS covers “Preparations of vegetables, fruit, nuts or other parts of plants.”
The chapter excludes fruits and vegetables that have been “prepared or preserved by
the processes specified in chapter 7, 8, or 11.” Ch. 20, Note 1(a), HTSUS. Chapters
7 and 8 contain frozen fruit and vegetables; therefore, Chapter 20 should exclude
them if the HTSUS considers freezing a process to prepare or preserve. Yet Chapter
20 is filled with frozen products — for instance heading 2008, which covers “Other
vegetables prepared or preserved otherwise than by vinegar or acetic acid, frozen[.]”
2008, HTSUS. The HTSUS therefore considers whether a product is frozen to be
separate from whether it is prepared or preserved. See R.T. Foods, 757 F.3d at 1356–
57 (making the same observation concerning vegetables of Chapter 7).
Nor do the fruit-and-vegetable mixtures satisfy the test offered by Orlando
Food, which found that “[i]nherent in the term ‘preparation’ is the notion that the
object involved is destined for a specific use.” 140 F.3d at 1441 (classifying tomato
sauce base in heading for “sauces and preparations therefor”). The parties’
Statements of Undisputed Material Facts, which bind the Court on summary
judgment, provide that (1) all of the products at issue “can be used for many purposes”
and may be “eat[en] directly,” (2) “[n]ew applications for the products at issue may be
developed based on customer usage,” and (3) Nature’s Touch “seeks to provide
customers with a wide range of possible end uses for its products” but “does not know
Court No. 1:20-cv-00131 Page 29
how a customer will ultimately use the products at issue.” Pl.’s Resp. to Def.’s 56.3
Statement, ¶¶ 9–13, ECF No. 30. Products that “can be used for many purposes” are
not “destined for a specific use.” See Orlando Food, 140 F.3d at 1441.
The fruit-and-vegetable mixtures therefore cannot be described as “food
preparations” within the meaning of the HTSUS, the Explanatory Notes, or case law.
Because fruit-and-vegetable mixtures that are consumed as such are excluded from
heading 2106 by Explanatory Note 21.06 (15) and because freezing is distinguished
from preparation by both the HTSUS and case law, the Court holds that Nature’s
Touch’s mixtures of frozen fruits and vegetables are not “food preparations” within
the meaning of heading 2106.
(b) Application of GRI 3
Having established that neither of the candidate HTSUS headings describe the
fruit-and-vegetable mixtures in whole under GRI 1, the Court moves sequentially to
the next applicable General Rule of Interpretation, GRI 3(a), in order to classify the
mixtures.9 GRI 3(a) provides that the heading “which provides the most specific
description” shall be preferred over headings providing “a more general description.”
GRI 3(a), HTSUS. However, when two headings each refer to only part of the
materials contained in mixed goods, they are regarded as equally specific under GRI
3(a); and the court must move to a GRI 3(b) essential character analysis to resolve
9GRI 2(a), which applies to incomplete and unfinished products, is inapplicable. See GRI
2(a), HTSUS. GRI 2(b) provides that “[t]he classification of goods consisting of more than one
material or substance shall be according to the principles of rule 3.” GRI 2(b), HTSUS.
Court No. 1:20-cv-00131 Page 30
the classification. GRI 3(a), HTSUS. In this case, heading 0811 (providing for “Fruit
. . . frozen”) and heading 0710 (providing for “Vegetables . . . frozen”) each “refer to
part only” of the fruit-and-vegetable mixtures. GRI 3(a), HTSUS. The Court will
therefore pick between these two headings by conducting an essential character
analysis under GRI 3(b), which provides that mixtures that cannot be classified by
GRI 3(a) “shall be classified as if they consisted of the material or component which
gives them their essential character, insofar as this criterion is applicable.” GRI 3(b),
HTSUS.
The Court conducts an essential character analysis by “‘isolat[ing] the most
outstanding and distinctive characteristic of the article’” through a fact-based
analysis that “consider[s] the totality of the evidence.” Structural Indus., Inc. v.
United States, 29 C.I.T. 180, 185 (2005) (quoting Canadian Vinyl Indus., Inc. v.
United States, 408 F. Supp. 1377, 1378 (Cust. Ct. 1976)). Put simply, the Court asks
what component “predominate[s]” over the others. See La Crosse Tech. 723 F.3d at
1360. Because the fruit-and-vegetable mixtures contain between 67% and 85% frozen
fruit ingredients by weight, the Court finds that the fruit ingredients predominate
and impart the essential character of these mixtures. See Pl.’s Resp. to Def.’s 56.3
Statement ¶ 4, ECF No. 30; see also Home Depot U.S.A., Inc. v. U.S., 491 F.3d 1334,
1336 (Fed. Cir. 2007) (quoting Explanatory Note VIII for GRI 3(b), explaining that
essential character may be determined by “the nature of the material or component,
its bulk, quantity, weight or value”). Nature’s Touch apparently agrees because it
Court No. 1:20-cv-00131 Page 31
refers to the fruit-and-vegetable mixtures as “fruit mixtures” in its Statement of
Undisputed Material Facts. See, e.g., Pl.’s Facts ¶¶ 14, 15, 19, 21, ECF No. 28. The
fruit-and-vegetable mixtures are therefore properly classified into heading 0811
under GRI 3(b).
C. Application of the GRIs to Determine the Correct Subheading
With all the merchandise classified into heading 0811, the Court next
determines the correct subheading within heading 0811 by reapplying the GRIs
sequentially. See GRI 6, HTSUS. The Court first applies GRI 1 and asks whether
the mixtures are described in whole by the terms of any of the three available six-
digit subheadings: 0811.10 (“Strawberries”); 0811.20 (“Raspberries, blackberries,
mulberries, loganberries, black, white or red currants and gooseberries (other than
kiwi fruit)”); and a basket or residual subheading, 0811.90 (“Other”). Subheading
0811.90, “Other,” contains additional eight-digit subheadings that include, among
others, 0811.90.10 (“Bananas and plantains”); 0811.90.20 (“Blueberries”); 0811.90.52
(“Mangoes”); and, finally, 0811.90.80 (“Other”). See supra at I. The Court applies the
GRIs once at the six-digit subheading level and again, separately, at the eight-digit
level. See GRI 6, HTSUS (providing that “only subheadings at the same level are
comparable”).
One of the few issues that the parties agree on is that subheadings 0811.90
and 0811.90.80, “Other,” do not describe the mixtures under GRI 1. Nature’s Touch
argues that, “[s]ince the various subheadings of Heading 0811, HTSUS include only
Court No. 1:20-cv-00131 Page 32
single fruits, ‘other’ frozen fruits of subheading 0811.90.80, HTSUS, similarly fails to
describe the instant goods . . . this Court should use [noscitur a sociis] and examine
the word ‘other’ in Subheading 0811.90.80, HTSUS, as only encompassing a signal
[sic] fruit not previously or specifically mentioned.” Pl.’s Br. at 12–13, ECF No. 28.
The Government largely agrees. Casting aside Customs’ prior contrary ruling in HQ
H307154, the Government now writes that:
[T]he subheadings of Heading 0811, HTSUS provide for
individual types of fruit . . . . Whereas certain subheadings
under other headings in Chapter 8 cover mixtures of fruit
. . . subheading 0811.90.80, HTSUS simply says ‘other’
without any reference to mixtures, and therefore can be
read to provide just for individual types of fruit not
enumerated in the preceding subheadings of 0811.90,
HTSUS.
Def.’s Br. at 18, ECF No. 36. The parties therefore agree that, because the
subheadings under heading 0811, HTSUS contain only single fruits, a subheading
providing for “other” fruit must be interpreted to mean other single fruits not
otherwise enumerated and cannot include mixed fruit.
On that basis, the Government believes that the mixtures cannot be classified
into any subheading under GRI 1. Nor, in the Government’s view, can a GRI 3(b)
essential character analysis be performed because “no one ingredient imparts the
essential character of these mixes.” Def.’s Br. at 27, ECF No. 36. Instead, the
Government currently believes that each mixture product should be classified by
applying GRI 3(c) and choosing the subheading that occurs last in numerical order
Court No. 1:20-cv-00131 Page 33
among those that equally merit consideration. Id. at 20, 27; see also GRI 3(c), HTSUS.
In this case, the Government would classify each mixture into the subheading that
comes last in numerical order among those subheadings that describe individual
types of fruit included in the mixture. See Def.’s Br. at 20, 27, ECF No. 36.
The Court was skeptical of the parties’ theories regarding subheadings 0811.90
and 0811.90.80, “Other.” In its Supplemental Briefing Order, the Court asked the
parties to address the fact that many subheadings of heading 0811 contain multiple
fruits. See, e.g., 0811.20, HTSUS (providing for “Raspberries, blackberries,
mulberries, loganberries, black, white or red currants and gooseberries”); 0811.90.10,
HTSUS (“Bananas and plantains”); 0811.90.25, HTSUS (“Cashew apples, mameyes
colorados, sapodillas, soursops and sweetsops”). The Court noted that these multiple-
fruit subheadings would appear to include mixtures of the named fruits. For
example, if Nature’s Touch imported a mixture of frozen bananas and plantains, that
product would be “described in whole” by the term “Bananas and plantains.” Cf.
CamelBak Prods., 649 F.3d at 1364. The Court therefore questioned why
subheadings 0811.90 and 0811.90.80, “Other,” should be interpreted to mean “other
single fruits” and exclude mixtures when the term is surrounded by multiple-fruit
subheadings that include mixtures of those fruits. See Supplemental Briefing Order,
ECF No. 42.
In its supplemental brief, the Government repeated its new litigation position
that the mixtures could not be classified as “Other” because the term “only
Court No. 1:20-cv-00131 Page 34
encompasses individual types of fruit not enumerated in the subheadings that
precede it.” Def.’s Supplemental Brief at 2, ECF No. 44. The Government asked that
the term “Other” be read “in its context and with a view to its place with the other
subheadings of 0811.90,” and warned of “unintended consequences” if the term was
interpreted to include mixtures. Id. at 3, 5. For example, the Government noted that
blueberries and cranberries, both of which are duty-free, would become dutiable at
14.5% if imported in a mixture, a result it described, without citation to any authority,
as “counterintuitive.” Id. at 5. The Government instead argued that “Other” should
be read to exclude mixtures that contain products enumerated in the other
subheadings. Otherwise, mixtures containing ingredients provided for eo nomine by
other HTSUS provisions would fall into “Other,” which, in the Government’s view, “is
not what we believe the HTSUS drafters intended.” Id. at 6. Nature’s Touch agreed
with the Government and denied that the multiple-fruit subheadings suggested that
the “Other” subheading could include mixtures. Citing Standard Chlorine Chem. Co.
v. United States, 13 C.I.T. 198 (1989), Nature’s Touch argued that the multiple-fruit
subheadings “are not ‘mixtures’ provisions. They are merely provisions which eo
nomine describe two or more items.” Pl.’s Supplemental Brief at 6, ECF No. 46. On
that basis, Nature’s Touch concluded that “subheading 0811.90.80, covering ‘Other’
frozen fruits, covers individual frozen fruits not mention [sic] in the eight-digit
subheadings which preceded it.” Id.Court No. 1:20-cv-00131 Page 35
These arguments ignore something important: the plain meaning of “other.”
Cf. Carl Zeiss, 195 F.3d at 1379 (“HTSUS terms are to be construed according to their
common and commercial meanings, which are presumed to be the same.”). “Other”
means “none of the above.” Under GRI 1 (and GRI 6, for subheadings), if a product
is not described in whole by any named subheading, it falls into the residual or basket
subheading “Other.” See, e.g., DMV USA, Inc. v. United States, 25 C.I.T. 970, 972
(2001) (“In the event that merchandise is not found to be classifiable under a specific
subheading, it is then classified as ‘other.’”); Cargill, Inc. v. United States, 318 F.
Supp. 2d 1279, 1290 (CIT 2004) (“Since the merchandise does not fit under a named
provision, it must be classified elsewhere, under the basket provision[.]”).
Both Nature’s Touch and the Government seek to prevent this by reading
“Other” narrowly, using canons of construction and concerns about duty rates to
defeat the plain meaning. But canons and duty rates do not control classification —
the text of the headings and subheadings do. See GRI 6, HTSUS (providing that
“classification shall be determined according to the terms of [the] subheadings.”).
Indeed, soon after arguing that it “seems illogical” to tax a mixture at 14.5% when its
individual ingredients would be subject to lesser rates if imported alone, the
Government concedes that “duty rates apply based on the correct classification” —
not the reverse. Def.’s Supplemental Brief at 5, ECF No. 44.
When interpreting the text of basket subheadings like “Other,” the Federal
Circuit has ruled that the term should be read broadly. See Rollerblade, Inc. v. United
Court No. 1:20-cv-00131 Page 36
States, 282 F.3d 1349, 1354 (Fed. Cir. 2002) (stating that residual subheadings such
as “other [sports equipment]” are “‘intended as a broad catch-all to encompass the
classification of articles for which there is not a more specifically applicable
subheading’”) (quoting EM Indus. v. United States, 22 C.I.T. 156, 165 (1998))
(emphasis added). This comports with the structure of the HTSUS, which “is
designed so that most classification questions can be answered by GRI 1, so that there
would be no need to delve into the less precise inquiries presented by GRI 3.”
Telebrands Corp. v. United States, 36 C.I.T. 1231, 1235 (2012), aff’d, 522 Fed. Appx.
915 (Fed. Cir. 2013).10 Attempts to narrow the meaning of “Other” are therefore
inappropriate. It is the proper classification for a product not described in whole by
the named subheadings within the correct heading.
Both parties argue that the lack of express language providing for mixtures in
the “Other” subheadings should be interpreted to mean that the subheadings cannot
cover mixtures under GRI 1. See Pl.’s Supplemental Brief at 4, ECF No. 46; Def.’s
Br. at 18, ECF No. 36 (“Whereas certain subheadings under other headings in
Chapter 8 cover mixtures of fruit . . . subheading 0811.90.80, HTSUS simply says
10 The Government worries that using a basket provision to classify mixtures “would render
GRI 3 meaningless.” Def.’s Supplemental Brief at 6, ECF No. 44. The Court’s recourse to
GRI 3 in this very case obviates the Government’s fear. See supra at II.B.2.b. Regardless,
the Court cannot reach the later GRIs if classification under GRI 1 is possible. See R.T.
Foods, 757 F.3d at 1353 (“If the proper heading can be determined under GRI 1, the court is
not to look to the subsequent GRIs.”); see also Telebrands Corp., 36 C.I.T. at 1235 n.5 (noting
that proposal to require consideration of GRIs 2–6 concurrently with GRI 1 in certain
circumstances was rejected by the Harmonized System Committee).
Court No. 1:20-cv-00131 Page 37
‘other’ without any reference to mixtures, and therefore can be read to provide just
for individual types of fruit not enumerated in the preceding subheadings of 0811.90,
HTSUS.”). It is surprising that the Government would here require a tariff provision
to specifically enumerate mixtures in order to cover them — after all, the Government
argued precisely the opposite when it urged the Court to classify mixtures in heading
0811 despite the absence of “mixtures” from its text. Cf. Def.’s Br. at 8–9, ECF No.
36 (“Plaintiff argues that Heading 0811, HTSUS does not cover the products at issue
because it does not specifically enumerate ‘mixtures.’ However, this argument
contradicts the broad, plain language of the heading . . . .”); id. at 16 (“[T]he fact that
‘mixtures’ of fruit are not explicitly enumerated in Heading 0811, HTSUS is not
determinative. Limiting this heading to single types of fruit, when its express
language contains no such limitation, would contradict well-settled jurisprudence.”).
The Government’s eagerness to arrive at its now preferred result has led it to demand
that subheading 0811.90.80, “Other,” be “limit[ed] . . . to single types of fruit, when
its express language contains no such limitation” — a startling contradiction. Id.
Rather than allow the Government to switch between two different interpretive rules
at its pleasure, the Court simply adopts the consistent principle that it is improper to
infer a mixtures exclusion where none is present in the plain text of heading 0811 or
subheading 0811.90.80, “Other.”
Regardless of the Government’s situational ethics, the structure of heading
0811 forecloses its latest interpretation. Heading 0811 covers “Fruit and nuts . . .
Court No. 1:20-cv-00131 Page 38
frozen.” 0811, HTSUS (emphasis added). Because none of the heading’s subheadings
mention nuts, all frozen nut products, including mixtures of frozen nuts and mixtures
of frozen fruit and nuts, must fall under subheading 0811.90.80, “Other.” The
subheading necessarily embraces mixtures. The Court therefore declines to apply
one rule to heading 0811 and another to subheading 0811.90.80 and instead finds
that it is unnecessary for either provision to enumerate mixtures in order to cover
them.
The Government believes that subheading 0811.90.80, “Other,” should be read
to exclude products that contain fruits enumerated by heading 0811’s other
subheadings, writing without citation to authority that “classification of a mix of
blueberries and cranberries under the provision for ‘Other,’ meaning in part, ‘other
than blueberries and cranberries,’ seems illogical.” Def.’s Supplemental Brief at 5,
ECF No. 44. Yet that was the logic of the Federal Circuit in R.T. Foods. There, the
court affirmed the Government’s classification of a tempura vegetable mixture
consisting, among other ingredients, of “three pieces of carrot, three pieces of wing
bean [and] three pieces of long or green bean” into heading 2004, HTSUS, covering
“Other vegetables prepared or preserved otherwise than by vinegar or acetic acid,
frozen[.]” R.T. Foods, 757 F.3d at 1351. This heading is itself a broad “Other”
provision that does not enumerate mixtures. The court then classified the product
into six-digit subheading 2004.90, covering “Other vegetables and mixtures of
vegetables.” The court finally had to choose an eight-digit subheading, picking
Court No. 1:20-cv-00131 Page 39
between 2004.90.10 (“Antipasto”), 2004.90.80 (“Beans”), and 2004.90.85 (“Other”).
The Government argued for “Other,” and the court agreed even though the
merchandise at issue contained beans. See id. at 1351, 1357. The Federal Circuit did
not read “Other” narrowly to mean “products containing no antipasto or beans.” Nor
did it resort to GRI 3. Instead, it asked whether the terms “antipasto” or “beans”
described the product. “[B]ecause the subject merchandise is not ‘antipasto’ or
‘beans,’ it is properly classified under subheading 2004.90.85[.]”11 Id. at 1357. A
mixture product may therefore be classified into a residual or basket subheading even
if it contains ingredients enumerated by other subheadings within the proper
heading.
The Government’s sole substantive case citation, Pillowtex Corp. v. United
States, 171 F.3d 1370 (Fed. Cir. 1999) supports, rather than contradicts, the principle
that a mixture product may be classified into a basket subheading even if it contains
materials enumerated by other subheadings within the proper heading. In Pillowtex,
the court classified comforters consisting of down filling in a cotton shell. Id. at 1372.
The dispute centered around whether the cotton and down comforters were
11 It is true that, in R.T. Foods, the residual subheading at issue, 2004.90.85, “Other,”
contained a ten-digit statistical subheading at 2004.90.85.95 providing for “Other, including
mixtures.” Of course, so does the residual subheading at issue in this case. See
0811.90.80.85, HTSUS (providing for “Frozen mixes only of combinations of strawberries,
blueberries, red raspberries or blackberries.”). Because the ten-digit statistical subheadings
are not part of the statutory language of the HTSUS, the Court will consider neither the
statistical subheading involved in R.T. Foods nor the statistical subheading present in this
case. Cf. Chemtall, Inc. v. United States, 878 F.3d 1012, 1026 (Fed. Cir. 2017) (establishing
that “[t]he tenth-digit statistical suffixes . . . are not statutory.”).
Court No. 1:20-cv-00131 Page 40
classifiable in a subheading for bedding articles “Of cotton” or, alternatively, a
subheading for “Other” bedding articles. Id. at 1375. In its GRI 1 analysis, the court
struggled to determine how much cotton an article needed to contain before it could
be described as “of cotton,” and concluded that the language of the heading,
subheading, and Explanatory Notes did not “provide any insight into the meaning of
the term ‘of cotton’ as it relates to comforters.” Id. at 1374. The court concluded that
both “Of cotton” and “Other” described the goods prima facie: “The cotton outer shell
part of the subject comforters allow the comforters to fall under [‘Of cotton’], whereas
the down filling part of the subject comforters allow them to fall under [‘Other’].” Id.
at 1375–76. The court broke the tie by conducting an essential character analysis
under GRI 3(b) and classified the product into “Other” on the basis of its down filling.
Id. at 1376.
Here, there is no interpretive difficulty under GRI 1 where multiple
subheadings describe the goods. The named subheadings under heading 0811 do not
say, for example, “of strawberries,” “containing strawberries,” or “made from
strawberries.” They simply say “Strawberries,” classifying products that can be
described, in whole, as strawberries. See CamelBak Prods., 649 F.3d at 1364 (“We
apply GRI 1 as a substantive rule of interpretation, such that when an imported
article is described in whole by a single classification heading or subheading, then
that single classification applies, and the succeeding GRIs are inoperative.”). Mixture
products containing strawberries cannot be classified under an eo nomine subheading
Court No. 1:20-cv-00131 Page 41
for “Strawberries” because “‘when an article “is in character or function something
other than as described by a specific statutory provision — either more limited or
more diversified — and the difference is significant,” it is not properly classified
within an eo nomine provision.’” R.T. Foods, 757 F.3d at 1354 (quoting CamelBak
Prods., 649 F.3d at 1365) (citation omitted). In the absence of a need for any inquiry
into the proportion of strawberries a product must contain before it can be classified
as “Strawberries,” the Court is left with “Other” as the only subheading that describes
the products — which Pillowtex affirms it does when it determined that down and
cotton comforters could be described by “Other” even though the comforters contained
cotton. See Pillowtex, 171 F.3d at 1375.
The Court will follow the same procedure the Federal Circuit employed in R.T.
Foods and that Customs followed in its prior ruling, HQ H307154. At the six-digit
level, the Court asks if any of the mixtures are described in whole by the term
“Strawberries” and concludes that they are not, ruling out 0811.10. It similarly
concludes that none of the mixtures are described in whole by the term “Raspberries,
blackberries, mulberries, loganberries, black, white or red currants and gooseberries
(other than kiwi fruit),” ruling out 0811.20. Subheading 0811.90, “Other,” describes
all of the mixtures because they are not described in whole by the terms of any other
six-digit subheading within the correct heading, 0811. The Court then re-applies GRI
1 at the eight-digit subheading level. It similarly finds that, because the mixtures
are not described in whole by the terms of any of the eight-digit subheadings that
Court No. 1:20-cv-00131 Page 42
enumerate fruits, they fall into the residual subheading 0811.90.80, “Other,” dutiable
at 14.5% ad valorem.
Although this produces the same result that the Government sought for five of
the mixture products (Antioxidant Blend Frozen, Frozen Medley Mixed Fruit,
Blueberry Blitz, Organic Strawberry/Cherry/Kale, and Organic Triple Berry with
Kale), for the other nine products this classification results in a higher duty rate than
the Government seeks. The Court is required to classify the merchandise into the
correct HTSUS provision independent of the parties’ arguments and the
Government’s prior classification. See Jarvis Clark, 733 F.2d at 878 (holding that
“the court’s duty is to find the correct result, by whatever procedure is best suited to
the case at hand”) (emphasis in original). However, because the Government makes
no claim for additional duties as to these nine products, this Court will not order
reliquidation and grant the Government relief it did not seek. See Answer, ECF No.
15. Nature’s Touch is therefore not required to pay the difference in duties that
results from the Court’s reclassification of the nine products for which the
Government did not seek classification into 0811.90.80, HTSUS. See Mitsubishi
Intern. Corp. v. United States, 22 C.I.T. 324, 357 (1998) (finding that, because the
Government did not request as a remedy that Customs reliquidate entries into the
correct subheading, “plaintiff is not required to pay the difference in duties as a result
of the reclassification[.]”), aff’d, 182 F.3d 884 (Fed. Cir. 1999); see also Def.’s Br. at 23
Court No. 1:20-cv-00131 Page 43
n.7, ECF No. 36 (conceding the necessity of counterclaims for collection of excess
duties from Nature’s Touch).
Accordingly, though the Court differs with the Government’s legal rationale,
the Court GRANTS IN-PART the Government’s Motion as to the classification of
Antioxidant Blend Frozen, Frozen Medley Mixed Fruit, Blueberry Blitz, Organic
Strawberry/Cherry/Kale, and Organic Triple Berry with Kale and DENIES IN-
PART the Government’s Motion as to the classification of the remaining nine
products and orders Customs to reclassify all of the products into 0811.90.80, HTSUS.
Nature’s Touch’s Motion is DENIED.
D. Eligibility for Duty-Free Treatment under NAFTA
The parties do not dispute that the North American Free Trade Agreement
(NAFTA) was in force at the time the subject merchandise was imported. See Pl.’s
Br. at 23 n.13, ECF No. 28; Def.’s Br. at 38, ECF No. 36. Under the United States’
tariff laws, products that “‘originate in the territory of a NAFTA party’ are entitled
to preferential duty treatment.” Cummins Inc. v. United States, 454 F.3d 1361, 1361–
62 (Fed. Cir. 2006) (quoting General Note 12(a)(ii), HTSUS). One way that a product
may so originate is if it is transformed in the territory of a NAFTA party, and one
manner of transformation is undergoing a shift in tariff classification as specifically
provided for in General Note 12 of the HTSUS. Nature’s Touch argues that its
merchandise qualifies for duty-free treatment under NAFTA because the products
originate in Canada. Specifically, Nature’s Touch invokes the so-called tariff-shift
Court No. 1:20-cv-00131 Page 44
rule by claiming that the imported ingredients “undergo a change from Chapter 8,
HTSUS, classifications to Heading 2106, HTSUS” when they are mixed at Nature’s
Touch’s Canadian facility. Pl.’s Br. at 24, ECF No. 28. Because the Court finds that
no shift into heading 2106 from another HTSUS chapter occurs, Nature’s Touch’s
arguments concerning duty-free treatment under NAFTA are meritless.
CONCLUSION
Although the purpose of the tariff schedules is to implement the nation’s
customs regime, the tax rates specified therein do not govern the tariff schedules’
interpretation — their text and the ordered rules established in the General Rules of
Interpretation do. To find fully in favor of either the Government or Nature’s Touch
would require the Court to discard these principles of interpretation and to disregard
Federal Circuit precedent so as to engage in a results-oriented inquiry. This the
Court cannot do. In consideration of the foregoing, the Court GRANTS IN-PART
and DENIES IN-PART the Government’s Cross-Motion for Summary Judgment;
DENIES Nature’s Touch’s Motion for Summary Judgment; and holds that the
subject merchandise is properly classified in 0811.90.80, HTSUS, dutiable at 14.5%
ad valorem. Judgment is entered ordering Customs to reclassify all the merchandise
but to reliquidate only the following products: Antioxidant Blend Frozen, Frozen
Medley Mixed Fruit, Blueberry Blitz, Organic Strawberry/Cherry/Kale, and Organic
Triple Berry with Kale. Such reliquidation shall also not include entries of Organic
Triple Berry with Kale originally liquidated in subheading 0811.90.52 at 10.9% and
Court No. 1:20-cv-00131 Page 45
the single entry of Blueberry Blitz at Entry No. MK8-5346590 that was liquidated in
subheading 0811.90.20 duty free, for which the Government does not claim duties
owed. See Def.’s Br. at 23, 29, ECF No. 36. No other products shall be reliquidated,
as the Government has made no claim for excess duties that would result from their
proper reclassification into 0811.90.80, HTSUS.
/s/ Stephen Alexander Vaden
Judge
Dated: May 26, 2023
New York, New York