Specialty Commodities Inc. v. United States

Slip Op. 16-114
UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
SPECIALTY COMMODITIES INC., :
:
Plaintiff, :
: Before: Richard K. Eaton, Judge
v. :
: Court No. 11-00091
UNITED STATES, :
:
Defendant. :
:
OPINION
[Determining the tariff classification for edible seeds of the Pinus koraiensis.]
Dated: December 2, 2016
J. Christopher Jensen, Cowan, Liebowitz & Latman, P.C., of New York, NY, argued for
plaintiff. With him on the brief were Clarence J. Erickson and Sara J. Herchenroder.
Monica P. Triana, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of New York, NY, argued for defendant. With her on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney General and Amy M. Rubin, Assistant
Director, International Trade Field Office. Of counsel on the brief was Sheryl A. French, Office
of Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection
of New York, NY.
EATON, Judge: At issue is the proper classification of Specialty Commodities
Inc.’s (“plaintiff”) merchandise, the seeds of the Pinus koraiensis tree. Before the court is
plaintiff’s motion for summary judgment and the cross-motion for summary judgment of the
United States on behalf of U.S. Customs and Border Protection (“the Government” or
“defendant”). See Mem. of Law in Supp. of Pl.’s Mot. for Summ. J. (ECF Dkt. No. 39) (“Pl.’s
Br.”); Def.’s Mem. of Law in Opp’n to Pl.’s Mot. for Summ. J. & in Supp. of Cross-Mot. for
Summ. J. (ECF Dkt. No. 44) (“Def.’s Br.”). Plaintiff challenges Customs’ classification of its
Court No. 11-00091 Page 2
entries of seeds of the Pinus koraiensis tree under subheading 0802.90.97 of the Harmonized
Tariff Schedule of the United States (“HTSUS”),1 providing for classification of “Other nuts,
fresh or dried, whether or not shelled or peeled: Other: Other: Shelled: Other.” Pl.’s Br. 3;
HTSUS 0802.90.97 (2009) (emphasis added). Plaintiff asserts Customs misclassified the seeds
because they are properly classified under HTSUS subheading 0802.90.25, which provides for
classification of “Other nuts, fresh or dried, whether or not shelled or peeled: Other: Pignolia:
Shelled.” Pl.’s Br. 3; HTSUS 0802.90.25 (emphasis added). Plaintiff seeks a reliquidation of the
merchandise under HTSUS 0802.90.25 and a refund with interest for overpayments of duties.
Pl.’s Br. 1. The Government maintains that its classification was correct, and the seeds are
properly classifiable under HTSUS 0802.90.97.
1
All references to the HTSUS refer to the 2009 edition. The pertinent HTSUS
subheading provides:
0802 Other nuts, fresh or dried, whether or not shelled or peeled:
0802.90 Other:
Pecans:
0802.90.10 In shell . . . . . . . . . . . . . . kg . . . . . . . 8.8¢/kg
0802.90.15 Shelled . . . . . . . . . . . . . . kg . . . . . .17.6¢/kg
Pignolia:
0802.90.20 In shell . . . . . . . . . . . . . . kg . . . . . . .0.7¢/kg
0802.90.25 Shelled . . . . . . . . . . . . . . kg . . . . . . . .1¢/kg
Other:
0802.90.81 In shell . . . . . . . . . . . . . . kg . . . . . . .1.3¢/kg
Shelled:
0802.90.94 Kola nuts . . . . . . kg . . . . . . . . .5¢/kg
0802.90.97 Other . . . . . . . . . kg . . . . . . . . .5¢/kg
Court No. 11-00091 Page 3
The court has jurisdiction pursuant to 28 U.S.C. § 1581(a) (2006). For the reasons
discussed below, plaintiff’s motion for summary judgment is denied and defendant’s cross-
motion for summary judgment is granted. The court finds that the proper classification for the
seeds is HTSUS 0802.90.97.
BACKGROUND
Plaintiff is a U.S. importer of raw, shelled pine nuts, the edible seeds of the Pinus
koraiensis, a pine tree indigenous to northeast Asia. Joint Statement of Undisputed Facts ¶¶ 1–6
(ECF Dkt. No. 33) (“Statement of Facts”). The seeds are processed in, and exported from,
China. Statement of Facts ¶ 4. On June 28, 2009, and July 12, 2009, the subject merchandise
entered the United States through the Port of Minneapolis as entry numbers BHV-0004055-6 and
BHV-0004113-3. Statement of Facts ¶¶ 3, 9. Upon entry, the merchandise was described on
plaintiff’s entry documents as “Chinese Pinenut Kernels” and classified by plaintiff under
HTSUS 0802.90.25 (i.e., “Other nuts, fresh or dried, whether or not shelled or peeled: Other:
Pignolia: Shelled.”), subject to a $0.01 per kilogram duty rate. Statement of Facts ¶¶ 4, 7, 8.
On August 19, 2009, Customs rejected plaintiff’s claimed classification. Customs’
rejection relied on Explanatory Note 08.02, which reads: “[t]he principal nuts of this heading are
almonds (sweet or bitter), hazelnuts or filberts, walnuts, chestnuts (Castanea spp.), pistachios,
pecans and pignolia nuts (seeds of the Pinus pinea).”2 Statement of Facts ¶ 9; See Explanatory
Notes to the Harmonized Commodity Description & Coding Sys., 08.02 (1st ed. 1986)
(“Explanatory Note”), Def.’s Br. Ex. A, at 9 (ECF Dkt. No. 44-1). Based on this Explanatory
2
Pinus pinea, also known as the Italian Stone Pine, is “a species of pine tree
indigenous to southern Europe, northern Africa and parts of the Mediterranean.” Statement of
Facts ¶ 11.
Court No. 11-00091 Page 4
Note, and because plaintiff’s invoices stated the nuts were “Chinese Pinenut Kernels,” Customs
concluded the merchandise did not fit within HTSUS 0802.90.25. Statement of Facts ¶ 9.
Specifically, Customs found that “the explanatory notes define pignolia as Pinus pinea [and
plaintiff’s] invoice doesn’t indicate this information.” Statement of Facts ¶ 9. Customs
determined the merchandise was properly classified under HTSUS 0802.90.97, a basket
provision that carries a $0.05 per kilogram duty rate. Statement of Facts ¶¶ 13, 15; see HTSUS
0802.90.97. Thus, for Customs, only seeds of the Pinus pinea tree are properly classified under
HTSUS subheading 0802.90.25. See Statement of Facts ¶ 9. Customs therefore concluded that
seeds produced by the Pinus koraiensis species are properly classifiable as “Other” under
HTSUS subheading 0802.90.97. Statement of Facts ¶ 15. As a result, the entries were liquidated
under HTSUS subheading 0802.90.97 on October 30, 2009. Statement of Facts ¶ 15.
On April 22, 2010, plaintiff timely protested Customs’ liquidation of the seeds.
Statement of Facts ¶ 17. In its protest, plaintiff insisted that they were properly classified as
“Pignolia.” Statement of Facts ¶ 17. On October 15, 2010, Customs denied the protest in
Headquarters Ruling Letter HQ H114758, concluding the seeds were properly classified under
the basket provision, HTSUS 0802.90.97. Statement of Facts ¶ 19 & Ex. B (ECF Dkt. No. 33-2)
(“Headquarters Ruling Letter HQ H114758”). This lawsuit followed.
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” USCIT
R. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). “When both parties
move for summary judgment, the court must evaluate each motion on its own merits, resolving
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all reasonable inferences against the party whose motion is under consideration.” JVC Co. of
Am., Div. of U.S. JVC Corp. v. United States, 234 F.3d 1348, 1351 (Fed. Cir. 2000).
This court employs a two-step analysis when reviewing Customs’ classification
determinations. First, it must ascertain “the proper meaning of the tariff provisions,” a question
of law reviewed de novo, and second, determine “whether merchandise falls within a particular
heading,” a question of fact reviewed for clear error. LeMans Corp. v. United States, 660 F.3d
1311, 1315 (Fed. Cir. 2011) (citing Cummins Inc. v. United States, 454 F.3d 1361, 1363 (Fed.
Cir. 2006)). In the context of a classification action, “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, 1365 (Fed. Cir. 1998). That is, where “the
nature of the merchandise is undisputed, the inquiry collapses into a question of law we review
de novo.” LeMans, 660 F.3d at 1315.
As for agency deference, “[o]n questions of law, a classification decision of Customs
may be accorded a ‘respect proportional to its “power to persuade.”’” Lerner N.Y., Inc. v. United
States, 37 CIT __, __, 908 F. Supp. 2d 1313, 1318 (2013), aff'd sub nom. Victoria’s Secret
Direct, LLC v. United States, 769 F.3d 1102 (Fed. Cir. 2014) (quoting United States v. Mead
Corp., 533 U.S. 215, 235 (2001) (citation omitted)). Further, while Customs enjoys a statutory
presumption of correctness as to its factual interpretations, the Federal Circuit has “squarely held
that the statutory presumption of correctness under § 2639 is irrelevant where there is no factual
dispute between the parties.” Rollerblade, Inc. v. United States, 112 F.3d 481, 483–84 (Fed. Cir.
1997); Universal Elecs., Inc. v. United States, 112 F.3d 488, 492–93 (Fed. Cir. 1997).
In addition, while the plaintiff “has the burden of establishing that the [G]overnment’s
classification is wrong,” the court must determine whether Customs’ “classification is correct,
Court No. 11-00091 Page 6
both independently and in comparison with the importer’s alternative.” G.G. Marck & Assocs.,
Inc. v. United States, No. 08-00306, slip op. 15-62, at *8 (CIT June 17, 2015) (quoting Jarvis
Clark Co. v. United States, 733 F.2d 873, 878 (Fed. Cir. 1984)).
DISCUSSION
I. LEGAL FRAMEWORK
The tariff classification of imported merchandise is governed by the “General Rules of
Interpretation” (“GRI”) and the “Additional United States Rules of Interpretation” (“ARI”),
which are applied in numerical order. R.T. Foods, Inc. v. United States, 757 F.3d 1349, 1353
(Fed. Cir. 2014). Accordingly, the classification analysis begins with GRI 1, under which
“classification shall be determined according to the terms of the headings and any relative
section or chapter notes.” HTSUS GRI 1; see R.T. Foods, 757 F.3d at 1353 (“[A] court first
construes the language of the heading, and any section or chapter notes in question, to determine
whether the product at issue is classifiable under the heading.” (internal quotation marks and
citation omitted)). Next, GRI 6 provides that “the classification of goods in the subheadings of a
heading shall be determined according to the terms of those subheadings and any related
subheading notes and, mutatis mutandis, to the above rules, on the understanding that only
subheadings at the same level are comparable.” HTSUS GRI 6.
“The HTSUS is organized by headings and each of these headings has one or more
subheadings.” Deckers Outdoor Corp. v. United States, 714 F.3d 1363, 1366 (Fed. Cir. 2013).
Some HTSUS headings and subheadings, such as the “Pignolia” subheading proposed by
plaintiff, are eo nomine provisions, or those that “describe[] an article by a specific name.” R.T.
Foods, 757 F.3d at 1354; Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999).
The HTSUS also includes basket provisions, such as that under which Customs classified the
Court No. 11-00091 Page 7
seeds, and classification into such headings or subheadings “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, 24 CIT at 815, 116 F. Supp. 2d at 1251).
“Tariff acts are construed to carry out the intent of Congress, which is initially
determined by looking at the language of the statute itself.” Lerner, 37 CIT at __, 908 F. Supp.
2d at 1318. The heading and subheading language in the HTSUS, however, may have “broad
and narrow interpretations,” and “the court must determine which definition best expresses the
congressional intent.” Id. at __, 908 F. Supp. 2d at 1319; Nissho Iwai Am. Corp. v. United
States, 143 F.3d 1470, 1472 (Fed. Cir. 1998). “Absent contrary legislative intent, HTSUS terms
are to be construed according to their common and commercial meanings, which are presumed to
be the same,” unless a party can show a term “has a different commercial meaning that is
definite, uniform, and general throughout the trade.” Carl Zeiss, 195 F.3d at 1379. In construing
HTSUS headings and subheadings, the “court may rely upon its own understanding of the terms
used and may consult lexicographic and scientific authorities, dictionaries, and other reliable
information sources.” Id.
“[T]he Explanatory Notes are regularly used by this Court to determine the intent of the
drafters with respect to the provisions of the HTSUS.” Streetsurfing LLC v. United States, 38
CIT __, __, 11 F. Supp. 3d 1287, 1300 (2014); see Mita Copystar Am. v. United States, 21 F.3d
1079, 1082 (Fed. Cir. 1994). “Although ‘not legally binding,’” the Explanatory Notes to the
Harmonized Commodity Description and Coding System (“Harmonized System”), “may be
consulted for guidance and are generally indicative of the proper interpretation of a tariff
provision.” Lerner, 37 CIT at __, 908 F. Supp. 2d at 1318–19 (quoting Degussa Corp. v. United
States, 508 F.3d 1044, 1047 (Fed. Cir. 2007)). Moreover, the Harmonized System, upon which
Court No. 11-00091 Page 8
the HTSUS is based, “is a multipurpose international product nomenclature developed by the
World Customs Organization” (“WCO”). Nomenclature and Classification of Goods, World
Customs Organization, http://www.wcoomd.org (last visited Nov. 9, 2016). The Explanatory
Notes constitute the international Harmonized System’s official interpretation. Omnibus Trade
and Competitiveness Act, Pub. L. 100–418, H.R. Rep. No. 100-576, at 549 (Conf. Rep.), as
reprinted in 1988 U.S.C.C.A.N. 1547, 1582. As shall be seen, at least to the six-digit level, the
Federal Circuit has found that the Explanatory Notes, accompanying each chapter of the
Harmonized System, are “‘persuasive[]’ and are ‘generally indicative’ of the proper
interpretation of the [HTSUS] tariff provision.” R.T. Foods, 757 F.3d at 1353 n.5 (citation
omitted).
II. SUMMARY JUDGMENT IS APPROPRIATE
As noted, summary judgment is appropriate in a Customs classification case when “there
is no factual dispute regarding what the merchandise is.” Sony Elecs., Inc. v. United States, No.
09-00043, slip op. 13-153, at *6 (CIT Dec. 23, 2013) (citing Faus Grp., Inc. v. United States,
581 F.3d 1369, 1372 (Fed. Cir. 2009). In addition, “the proper meaning and scope of the
relevant provisions and a determination of the preferred heading for classification purposes, [are]
both questions of law.” Carl Zeiss, 195 F.3d at 1378.
Here, the parties agree that the subject merchandise is seeds of the Pinus koraiensis.
Statement of Facts ¶ 5. Because “there is no factual dispute regarding what the merchandise is,”
Sony Elecs., slip op. 13-153, at *5, the remaining question is “the proper meaning of . . . the
relevant tariff provision[],” which is a legal question, reviewed de novo, and appropriate for
summary judgment. Id.; see EOS of N. Am., Inc. v. United States, 37 CIT __, __, 911 F. Supp.
Court No. 11-00091 Page 9
2d 1311, 1317–18 (2013).
The parties also agree that the subject merchandise is properly classified under the
HTSUS subheading 0802.90 (“Other nuts, fresh or dried, whether or not shelled or peeled:
Other.”). Def.’s Br. 6; see Pl.’s Br. 1. This subheading, however, is further divided into other
subheadings at the eight-digit level: “Pignolia” and “Other.” HTSUS 0802.90. Therefore, the
dispute involves whether the subject merchandise, seeds of the Pinus koraiensis tree, is properly
classified under the “Pignolia” subheading or the basket provision “Other.” HTSUS 0802.90.25
(“Pignolia”); HTSUS 0802.90.97 (“Other”).
III. PLAINTIFF HAS FAILED TO DEMONSTRATE THAT THE
MEANING OF PIGNOLIA INCLUDES SEEDS OF THE PINUS KORAIENSIS
A. Lexicographic, Dictionary, and Industry Sources
If the HTSUS does not define a term, it is “construed according to [its] common and
commercial meanings, which are presumed to be the same.” Carl Zeiss, 195 F.3d at 1379. To
determine this meaning, the “court may rely upon its own understanding of the terms used and
may consult lexicographic and scientific authorities, dictionaries, and other reliable information
sources.” Id.
Plaintiff contends that all pine nuts, including the seeds of the Pinus koraiensis, are
commonly known as pignolia nuts. Pl.’s Br. 6. Specialty Commodities supports its claim by
citing several dictionary definitions.3 See Pl.’s Br. 6–7; Decl. of J. Christopher Jensen in Supp.
of Pl.’s Mot. for Summ. J. (ECF Dkt. No. 34) (“Jensen Decl.”); Jensen Decl. Ex. A (ECF Dkt.
No. 34-1) (dictionary definitions). Plaintiff points to: (1) Webster’s Third New International
3
The court notes that plaintiff also cites to and quotes Wikipedia. Pl.’s Br. 7 & n.7.
Court No. 11-00091 Page 10
Dictionary, which defines “pignolia” as “the edible seed of the nut pine”; (2) Random House
Unabridged Dictionary, which provides “pine nut 1. Also, pignolia. the seed of any of several
pine trees, as the piñon, eaten roasted or salted or used in making [food]”; (3) Merriam-Webster,
states “Definition of PIGNOLI : PINE NUT”; (4) Oxford Dictionaries, stating “pignoli[,]
[d]efinition of pignoli in English: plural noun Pine nuts”; and (5) Webster’s New World College
Dictionary which defines pignolia as “the edible seed of any various nut pines also pignoli.”
Jensen Decl. Ex. A (emphasis added). According to plaintiff, these definitions “support[ its]
position that the term refers to all pine nuts, regardless of species.” Pl.’s Br. 7.
Moreover, plaintiff seeks to demonstrate that the word pignolia has the same meaning
when used in commerce “within the nut industry.” Pl.’s Br. 7. First, plaintiff relies on an
August 2004 article Pine Nuts (Pignolia): Species, Products, Markets and Potential for U.S.
Production. Pl.’s Br. 7. This article, written by an Associate Director at the University of
Missouri Center for Agroforestry and his Research Assistant, describes the international pine nut
market. Jensen Decl. Ex. B (ECF Dkt. No. 34-2) (Leonid Sharashkin & Michael Gold, Pine Nuts
(Pignolia): Species, Products, Markets and Potential for U.S. Production, N. Nut Growers Ass’n
95th Annual Report (Aug. 2004)) (“Jensen Decl. Ex. B (Sharashkin & Gold)”). Plaintiff argues
that “[t]hroughout this published work, the authors do not distinguish between pine nuts derived
from the species Pinus pinea and those from other species,” but rather the article uses “pine
nuts” interchangeably with “pignolia.” See Pl.’s Br. 7–8. Further, according to plaintiff, the
authors address the interchangeability of pignolia nuts and pine nuts when they state “‘that
consumers are usually not sophisticated enough to distinguish between nuts of different species,
therefore the nuts are usually lumped together in the commerce and referred to as ‘pine nuts’,
pinyon nuts, pignolia, etc.’” Pl.’s Br. 8 (quoting Jensen Decl. Ex. B (Sharashkin & Gold)).
Court No. 11-00091 Page 11
Plaintiff also cites two publications presented at a 1993 U.S. Department of Agriculture
(“USDA”) Symposium entitled Managing Piñon-Juniper Ecosystems for Sustainability and
Social Needs. Pl.’s Br. 8. The first article, Pine Nuts (Pinus) Imported Into the United States,
written by Elbert L. Little, Jr., a retired dendrologist4 for the USDA Forest Service, discusses
United States pine nut imports. Jensen Decl. Ex. C (ECF Dkt. No. 34-3) (Elbert L. Little, Pine
Nuts (Pinus) Imported Into the United States) (“Jensen Decl. Ex. C (Little)”). According to
plaintiff, this article uses the words pignolia and pine nuts interchangeably, and explains that all
pine nut imports are referred to as pignolia by the U.S. Census Bureau data. Pl.’s Br. 8; Jensen
Decl. Ex. C (Little) (“The term pignolia has been used throughout for all pine nuts imported, and
scientific names have not been cited.”).
Plaintiff further asserts that another article presented at the USDA symposium, U.S.
Market for Imported Pignoli Nuts, uses pine nuts and pignolia nuts interchangeably. Jensen
Decl. Ex. C. (Steven Delco et al., U.S. Market for Imported Pignoli Nuts) (“Jensen Decl. Ex. C
(Delco et al.)”). This article states “[t]he major suppliers to the U.S. during [1989–1992] were
China, Portugal, Hong Kong, and Spain. China has maintained a dominate position in supplying
Pignoli nuts to the U.S. market . . . .” Jensen Decl. Ex. C (Delco et al.). Additionally, this article
contains graphs and figures that, rather than referring to pine nuts generally, are labeled “US
Pignoli Nut Imports (in Pounds)” and “Major Pignoli Nut Suppliers to US Market,” and reflect
imports of Chinese pine nuts. Jensen Decl. Ex. C. (Delco et al.).
In addition to the USDA symposium articles, plaintiff points to U.S. Census Bureau data
reflecting imports of “pignolia nuts” from various countries. Pl.’s Reply Mem. in Further Supp.
4
Dendrology is “the study of trees.” Dendrology, Merriam-Webster,
http://www.merriam-webster.com/dictionary/dendrology.
Court No. 11-00091 Page 12
of Pl.’s Mot. for Summ. J and in Opp. to Def.’s Cross-Mot. for Summ. J. 6 (ECF Dkt. No. 47)
(“Pl.’s Reply Br.”), Ex. B. (ECF Dkt. No. 47-2) (U.S. General Imps., Commodity by Country
(Dep’t of Commerce Dec. 1978)) (“Pl.’s Reply Br. Ex. B. (U.S. Census Bureau Data)”). The
U.S. Census Bureau’s chart, under the heading 0577840 “PIGNOLIA NUTS, SHELLED OR
NOT SHELLED, BLANCHED OR OTHERWISE PREPARED OR PRESERVED,” reflects
Spain, Portugal, Iran, China, and “OTH CTY” as the “Countr[ies] of Origin” for these imports.
Pl.’s Reply Br. Ex. B. (U.S. Census Bureau Data). From this, plaintiff concludes “that pignolia
nuts have historically been imported into the United States from these and other countries,” and
are “[c]learly . . . not limited to the Pinus pinea species.” Pl.’s Reply Br. 6.
Plaintiff further points to websites to support its claim that under both their common and
commercial meaning, all pine nuts are pignolia nuts. See Pl.’s Br. 9–10. For example, the
USDA’s website and wholesalepinenuts.com use pignolia and pine nuts interchangeably, and
even go as far as stating they are the same.5 See Pl.’s Br. 9–10. Specifically, the USDA website
posted an article stating: “[t]he many varieties of these pine seeds come under the broad name,
‘pignolias.’” Bernice K. McGeary & Malcolm E. Smith, Nuts, a Shell Game that Pays Off in
Good Eating, http://naldc.nal.usda.gov/download/CAIN709013222/PDF. In addition,
wholesalepinenuts.com states that “Shelled Pinoli and Shelled Pignoli are just another name for
our shelled pine nuts and no shell pine nuts.” Wholesalepinenuts.com,
http://www.wholesalepinenuts.com/american-nevada-shelled-pinyon-pine-nuts-no-shell-
sale.html (last visited Nov. 9, 2016). These sources, plaintiff maintains, clearly equate pignolia
with pine nuts. See Pl.’s Br. 9–10.
5
Plaintiff also cites the website thenutbox.com, stating: “Pine Nuts (Pignolia).”
Thenutbox.com, http://www.thenutbox.com/Pine-Nuts-Pignolia-p/318.htm (last visited Nov. 9,
2016).
Court No. 11-00091 Page 13
In response, the Government first notes that none of the dictionary definitions offered by
plaintiff specifically include its product, seeds of the Pinus koraiensis—the seeds at issue here.
Def.’s Br. 12. To the contrary, defendant argues, the definitions supplied by plaintiff, when read
in conjunction with the sources it cites, simply indicate that all pignolia are pine nuts, but not
necessarily that all pine nuts are pignolia. Def.’s Br. 11. In other words, the Government agrees
that plaintiff’s definitions are “accurate statement[s], as ‘pignolia’ is a type of pine nut; however,
this does not support plaintiff’s contention that ‘pignolia’ covers all species of pine nuts.” Def.’s
Br. 12.
To make its case, the Government counters with lexicographic and other sources of its
own that define “pignolia” more narrowly. Def.’s Br. 8–9. The Government points to
Encyclopedia Britannica, The Columbia Encyclopedia, Cambridge World History of Food, and
Oxford English Dictionary to support its argument that the definition of pignolia is not
equivalent to pine nut. Def.’s Br. Exs. C–F (ECF Dkt. No. 44-1). The sources offered by the
Government define pignolia as either the seeds of the Pinus pinea, and no other type of pine tree,
or as the seeds of only a few particular types of pine trees, but notably not the Pinus koraiensis.
Specifically, Encyclopedia Britannica, in its definition of “pinenut,” states:
The pinenuts are seeds of a considerable number of species [native] to remote and
often more or less arid parts of the earth . . . nuts are borne in the axils of the cone
scales. The stone pine [of] Europe and Asia, the pinyon pines of North America,
and [the] Araucarian pine of the Andean region of South America are most
important. With the exception of the Italian stone pine seeds of which are sold as
“pignolia” and exported, pinenuts [are] largely consumed in the general regions
where they are prod[uced].
Def.’s Br. Ex. C (Encyclopedia Britannica) (emphasis added). The Columbia Encyclopedia
provides:
Pine nuts, or Indian nuts, were an important food for some early Native Americans
and are still harvested in quantity both for food and for trading. They are picked
Court No. 11-00091 Page 14
from the ground, taken from squirrel caches, or extracted by hand from the cones.
Some pine stands are in danger of depletion because insufficient seeds are left for
reproduction. Pignolia nuts are the seeds of P. pinea of S Europe, where they are
cultivated and much used for food.
Def.’s Br. Ex. E. (The Columbia Encyclopedia) (emphasis added). The Cambridge
World History of Food states:
Also called pignoli, pignolia, pignons, piñon nuts, and Indian nuts, these ivory-
toned seeds come from the pinecones of several trees of the genus Pinus and rank
alongside macadamias and pistachios as the most expensive nuts on the market.
The European term for pine nuts is pignolia, indicating that they come from the
Italian stone pine, which grows in Italy, Iberia, and North Africa.
Def.’s Br. Ex. F. (Cambridge World History of Food) (emphasis added). The Oxford English
Dictionary defines “pignolia” as “[t]he edible seed of the cones of certain pines, esp. the stone
pine, Pinus pinea, of southern Europe; a pine nut.” Def.’s Br. Ex. D. (Oxford English
Dictionary).
As to the industry sources offered by plaintiff, the Government counters that plaintiff
overemphasizes the purported interchangeability of “pignolia” and “pine nut” in these articles.
Def.’s Br. 12. With regard to the publications presented at the USDA symposium, the
Government asserts that “even if Pinus koraiensis were viewed by a governmental agency as
‘pignolia’ in the past,” this “does not mean that any such determination was made by Customs,
or that it was correct.” Def.’s Br. 14. Further, according to defendant, nothing in the record
indicated: (1) that the pine nuts discussed during the symposium were “imported from China, . . .
produced in or indigenous to China,” (2) that “the data was pulled only from product[s] classified
as ‘pignolia’ under 0802.90.25, HTSUS, ” or (3) “that the product being imported was Pinus
koraiensis.” Def.’s Br. 13–14. Therefore, for the Government, because it is unclear what types
of nuts were referenced in the USDA articles, plaintiff cannot say these articles demonstrate that
all pine nuts, including seeds of the Pinus koraiensis, are also referred to as pignolia nuts.
Court No. 11-00091 Page 15
Respecting the reference to the Sharashkin and Gold article from the University of
Missouri, the Government asserts “pignolia” is only referenced once, and is simply used in
passing to discuss unsophisticated consumers. Def.’s Br. 12 (“The term ‘pignolia’ appears in the
text of the article exactly one time. Contrary to plaintiff’s assertion, the article uses the generic
term ‘pine nut’ throughout; that is, the article discusses various pine nuts and their markets as
well as pine nut production.” (emphasis in original)). The Government further argues that the
most the article might be cited for, is that consumers may confuse the various seeds—not that it
establishes plaintiff’s product is commonly and commercially known as pignolia. Def.’s Br. 12.
That is, for defendant, the article does not demonstrate that pignolia has an established common
or commercial meaning encompassing all pine nuts. See Def.’s Br. 12.
The Government offers its own industry sources, which it claims demonstrate that Pinus
koraiensis is not commonly or commercially included within the meaning of pignolia. Def.’s Br.
9–10. For example, The Book of Edible Nuts states “the most common designation for the [pine]
nuts in Europe is ‘pignolia,’ a term which refers to pine nuts of the Italian stone pine, Pinus
pinea, grown for the most part in Spain, Portugal, Italy, and North Africa.” Def.’s Br. Ex. G
(Frederic Rosengarten, Jr., The Book of Edible Nuts 309 (1984)) (“Def.’s Br. Ex. G
(Rosengarten)”). Additionally, “in the United States nut trade, ‘pine nuts’ may refer to the
European pignolia, the North American piñon or the Chinese pine nut.” Id. at 311. The source
further provides that Pinus koraiensis has in recent years become “a commercially competitive
nut,” but is “[c]heaper than the more delicate European pignolias.” Id. at 315; Def.’s Br. 10.
Defendant also points to The Deluxe Food Lover’s Companion which describes “pine
nut” as a seed
from several varieties of pine trees. . . . Pine nuts grow in China, Italy, Mexico,
North Africa and the southwestern United States. There are two main varieties.
Court No. 11-00091 Page 16
Both have a thin shell with an ivory-colored nutmeat that averages about ½ inch in
length. The Mediterranean or Italian Pine Nut is from the stone pine [i.e. pignolia].
It’s torpedo-shaped, has a light, delicate flavor and is the more expensive of the
two. The stronger-flavored Chinese pine nut is shaped like a squat triangle. Its
pungent pine flavor can easily overpower some foods.
Def.’s Br. Ex. H (The Deluxe Food Lover’s Companion); Def.’s Br. 10. For Customs,
these sources support its contention that all species of pine nuts are not pignolia nuts.
The court finds that the various definitions and industry sources offered fail to establish
that seeds of the Pinus koraiensis necessarily are included within the common or commercial
meanings of pignolia. See Pl.’s Br. 8–10; Def.’s Br. 8–11. While plaintiff’s dictionary
definitions do tend to indicate that the word pignolia does encompass pine nuts other than the
seeds of the Pinus pinea, Customs’ sources do not. Specifically, plaintiff’s sources define
pignolia generally, as “the seed of any several pine trees,” whereas Customs’ sources provide
that “[p]ignolia nuts are the seeds of P. pinea of S Europe.” Jensen Decl. Ex. A; Def.’s Br. Exs.
C–F. Importantly, no cited source equates pignolia with plaintiff’s actual product, the seeds of
the Pinus koraiensis. See Sigma-Tau Healthscience, Inc. v. United States, No. 16-1125, at *11
(Fed. Cir. Sept. 26, 2016) (“Whether a [good] is commonly referred to as [a term provided in the
HTSUS] may be pertinent, but only if there is a consensus as to the use of that terminology.”);
see also Deckers Outdoor Corp., 714 F.3d at 1369 (“Because there are competing dictionary
definitions of the term ‘slip-on’—and many of those definitions are not limited to shoes—the
Trade Court correctly declined to limit the term ‘footwear of the slip-on type’ to shoes.”). As a
result, it cannot be said that the word pignolia has a common meaning that embraces all pine
nuts, or the seeds of the Pinus koraiensis in particular.
In like manner, the sources cited fail to establish that the commercial meaning of pignolia
includes seeds of the Pinus koraiensis. Plaintiff first cites an article from the University of
Court No. 11-00091 Page 17
Missouri Center for Agroforestry stating that consumers cannot “distinguish between nuts of
different species,” and as a result “the nuts are usually lumped together in the commerce and
referred to as ‘pine nuts’, pinyon nuts, pignolia, etc.” Jensen Decl. Ex. B. (Sharashkin & Gold).
This article, however, fails to cite any support for this assertion. To the court, the article’s
unsupported assertions are not helpful in determining pignolia’s commercial meaning.
The court also finds the USDA symposium articles6 and U.S. Census Bureau data, which
plaintiff asserts use pignolia and pine nuts interchangeably, do not clarify the common and
commercial meaning of pignolia. Notably, Little’s USDA article acknowledges that scientific
names have not been cited, however, the classification based on scientific names is the precise
issue before the court. In addition, the court notes that the Delco et al. article shows that Chinese
pine nuts were imported during 1988 to 1992, however, it also provides that “[t]here are regional
varieties of the pine nut throughout the world” and that “the Spanish and Italian pine nut [are] a
different variety from the Chinese nut.” Jensen Decl. Ex. C (Delco et al.).
The U.S. Census Bureau data presented by plaintiff, reflecting imports from foreign
countries of pine nuts as pignolia nuts, is also not persuasive in establishing the common and
commercial meaning.7 This is because the data collected reflected how importers had self-
6
It is worth noting that the USDA articles plaintiff presented, as if they were
another agency’s interpretation, do not necessarily reflect the USDA’s understanding of the term
pignolia. Importantly, the USDA included a disclaimer in the symposium materials, stating that
“[t]he views expressed in each paper are those of the author and not necessarily those of the
USDA Forest Service.” Managing Piñon-Juniper Ecosystems for Sustainability and Social
Needs, U.S. Dep’t of Agriculture (Apr. 26–30 1993).
7
Specifically, the chart provides:
Table 2. Schedule A Commodity by Country of Origin, Customs, F.a.s., and C.i.f.
Values—Continued
Court No. 11-00091 Page 18
classified their entries, not the conscious decisions of Customs. Thus, the U.S. Census Bureau
data does not reflect a decision on the part of Customs to classify all pine nuts as “Pignolia,” but
rather represents actions made “expeditiously and without examination or Customs officer
review” to accept importers proposed tariff provision.8 See Motorola, Inc. v. United States, 436
F.3d 1357, 1367 (Fed. Cir. 2006) (citation omitted). That is, all the U.S. Census Bureau data
...
0577840 PIGNOLIA NUTS, SHELLED OR NOT SHELLED . . .
SPAIN ...
PORTUGAL ...
IRAN ...
CHINA P ...
OTH CTY ...
TOTAL ...
Pl.’s Reply Br. Ex. B. (U.S. Census Bureau Data).
8
It is important to note that plaintiff makes no argument that, because Customs has
previously liquidated entries of seeds other than seeds of the Pinus pinea under the HTSUS
subheading “Pignolia,” its nuts should likewise be classified under this subheading. In other
words, plaintiff does not argue that it is entitled to prevail on the theory that Customs’ previous
actions of liquidating entries of Pinus seeds constitutes prior “treatment,” and that Customs’
decision not to liquidate the seeds of the Pinus koraiensis under this subheading is a departure
from such treatment. The Federal Circuit has held that “the admission of entries ‘expeditiously
and without examination or Customs officer review’ does not constitute ‘treatment’ within the
meaning of section 1625(c)(2).” Motorola, Inc. v. United States, 436 F.3d 1357, 1367 (Fed. Cir.
2006). As a result, Customs’ previous liquidations of seeds other than the Pinus pinea under
subheading 0802.90.25 is not “treatment” resulting in a change entitling plaintiff to relief. Cf.
Cal. Indus. Prods., Inc. v. United States, 436 F.3d 1341, 1351 (Fed. Cir. 2006) (“Turning to the
merits, section 1625(c)(2) mandates that Customs follow notice and comment procedures before
issuing an ‘interpretive ruling or decision which would . . . have the effect of modifying the
treatment previously accorded by the Customs Service to substantially identical transactions.’”
(quoting 19 U.S.C. § 1625(c)(2)). In any event, since this argument was not made, it is waived.
United States v. Great Am. Ins. Co. of N.Y., 738 F.3d 1320, 1328 (Fed. Cir. 2013) (“It is well
established that arguments that are not appropriately developed in a party’s briefing may be
deemed waived.”).
Court No. 11-00091 Page 19
reflects is that the importers self-classified the seeds of the Pinus koraiensis under “Pignolia,”
not that Customs made a reasoned decision that this was the appropriate subheading.
For its part, defendant points to The Deluxe Food Lover’s Companion and The Book of
Edible Nuts, both indicating that pignolia nuts are seeds of the Pinus pinea. Def.’s Br. Ex. G
(Rosengarten); Def.’s Br. Ex. H (The Deluxe Food Lover’s Companion). For instance, The
Deluxe Food Lover’s Companion provides “Pine nuts grow in China, Italy, Mexico, North Africa
and southwestern United States. There are two main varieties. . . . The Mediterranean or Italian
Pine Nut is from the stone pine [i.e. pignolia]. The stronger-flavored Chinese pine nut is shaped
like a squat triangle.” Def.’s Br. Ex. H (The Deluxe Food Lover’s Companion). The Book of
Edible Nuts also distinguishes pine nuts based on species and geographical location. Def.’s Br.
Ex. G (Rosengarten).
A look at sources not cited by the parties sheds some light on the common meaning of
“Pignolia.” Pinenut.com, run by a domestic organization “advocat[ing] and consult[ing] on
sustainable forestry approaches” distinguishes domestic pine nuts from Korean pine nuts and
Italian pine nuts. Know your pine nuts!, Pinenut.com, http://www.pinenut.com/pine-nuts/pinon-
pinyon-nuts.shtml (last visited Nov. 9, 2016). Discussing different species of pine nuts, the
website states: “ITALIAN Stone pine (Pinus pinea) [m]any tout the Pine nuts from Italy
(pignolia, pinolia), however[,] that species Pinus pinea is very common in the European market
and grown throughout the Meditrainian [(sic)] region. The processing factors and distribution
factors of Pinus pinea end up making it rather bland.” Id. This website shows that at least one
U.S. organization, with an interest in pine nuts, distinguishes the Italian pignolia nut from other
pine nuts, arguing there is a difference in quality. Id. (“Siberian Nuts are much smaller . . . [t]he
Court No. 11-00091 Page 20
nut meat looks nothing like the nut meats of New Mexican or Nevada Pine nuts, [and]. . . they
are not as ‘round and flat’ as pinons.”).
In sum, for the court, the sources fail to demonstrate that there is a commercial meaning
for the word pignolia that covers plaintiff’s product. Therefore, the court finds that plaintiff has
failed to establish the common or commercial meaning of pignolia to include pine nuts of all
species, and in particular that plaintiff has failed to demonstrate that its seeds of the Pinus
koraiensis, are encompassed within the meaning of the word.
B. Customs’ New York Ruling Letters Did Not Establish “Pignolia’s” Meaning
Plaintiff next asserts that Customs established pignolia’s meaning in two New York
Customs Ruling letters classifying oil and vinegar sets. Pl.’s Br. 10. The first Customs Ruling
Letter states: “[o]ne bottle contains ‘Rosemary & Pignoli Infused Oil’ a yellow liquid which is
stated to be canola oil, rosemary, pine nuts (or pignoli) and black peppercorns. It has visible
rosemary sprigs with some pine nuts and peppercorns floating within.” Jensen Decl. Ex. F
(Tariff classification of Oil and Vinegar from China, NY F86911 (Customs & Border Prot.
May 31, 2000)). Another Customs Ruling letter on oil and vinegar sets states: “‘rosemary and
pignolia infused oil’ . . . [i]t has visible rosemary sprigs and some pine nuts, or pignoli, and black
peppercorns floating within.” Jensen Decl. Ex. F (The tariff classification of an Oil and Vinegar
Set from China, NYG89892 (Customs & Border Prot. May 7, 2001)). Plaintiff argues that these
ruling letters establish that Customs acknowledged that “‘pignolia’ refer[s] to pine nuts
generally, including those of the Asian origin,” and thus that all pine nuts are pignolia nuts. Pl.’s
Br. 10; Lonza, Inc. v. United States, 46 F.3d 1098, 1106 (Fed. Cir. 1995) (per curiam) (“The
common meaning of a tariff term, once established, remains controlling until a subsequent
Court No. 11-00091 Page 21
change in statute compels a revised construction of the term’s meaning.”).
The Government responds that these ruling letters are not persuasive in this case because
agency determinations “are not binding on this court,” and more importantly that it is “unclear
based on the facts available what types of pine nut was included” in the oil and vinegar sets.9
Def.’s Br. 14; cf. Warner-Lambert Co. v. United States, 425 F.3d 1381, 1384 (Fed. Cir. 2005).
The court finds that the two previous ruling letters are sufficiently unrelated to the
subheading at issue in this case, so as to be unhelpful in establishing a meaning for pignolia.
Here, the classification of the pine trees’ seeds could not be said to have been on the minds of the
authors of the letters classifying oil and vinegar sets. In addition, Customs’ regulations provide
that “[e]ach ruling letter setting forth the proper classification of an article under the provisions
of the [HTSUS]” is applicable “only with respect to transactions involving articles identical to
the sample submitted with the ruling request or to articles whose description is identical to the
description set forth in the ruling letter.” 19 C.F.R. § 177.9(b)(2). The Federal Circuit has
interpreted 19 C.F.R. § 177.9(c) to permit a ruling letter to be “binding only on the party to
whom it is issued, and may be revoked or cancelled at any time.”10 Jewelpak Corp. v. United
9
In response, plaintiff asserts that because the oil and vinegar sets were from
China, it is extremely likely that the pine nuts at issue in these ruling letters were also Chinese
pine nuts. Pl.’s Reply Br. 7–8.
10
The regulation provides that:
Except when public notice and comment procedures apply under [section] 177.12,
a ruling letter is subject to modification or revocation by [Customs] without notice
to any person other than the person to whom the ruling letter was addressed.
Accordingly, no other person should rely on the ruling letter or assume that the
principles of that ruling will be applied in connection with any transaction other
than the one described in the letter.
19 C.F.R. § 177.9(c).
Court No. 11-00091 Page 22
States, 297 F.3d 1326, 1335 (Fed. Cir. 2002).
Indeed, pursuant to the regulations, these two ruling letters apply only to Customs’
interpretations with respect to those oil and vinegar sets, not Customs’ interpretation of pignolia.
19 C.F.R. §§ 177.9(b)(2), (c). This being the case, the two ruling letters do not establish that
Customs previously used the term pignolia interchangeably with pine nut. Last, Customs’
rulings are entitled to deference only to the degree of their power to persuade, and this “degree of
deference” turns on “the thoroughness evident in the classification ruling; the validity of the
reasoning that led to the classification; . . . the formality with which the particular ruling was
established; and other factors that supply a ‘power to persuade.’” Warner-Lambert Co. v. United
States, 407 F.3d 1207, 1209 (Fed. Cir. 2005) (quoting Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944)). As a result, because the ruling letters pertained to a different provision of the
HTSUS and do not show that Customs has “thoroughly considered [the] particular
classification,” they are unpersuasive in establishing pignolia’s meaning. Sony Elecs., slip op.
13-153, at *11; see 19 C.F.R. § 177.9(b)(2).
C. There Was Not an Established Meaning for “Pignolia” Under the Tariff
Schedules of the United States
Next, plaintiff argues that the meaning of pignolia was established under the Tariff
Schedule of the United States (“TSUS”)11 and its predecessor tariff schedules, and this meaning
11
The TSUS was created by the Customs Simplification Act of 1954, which
directed the Tariff Commission to compile a revision of customs laws classifying
imports for tariff purposes. The Commission submitted the Tariff Classification
Study to Congress and the President on November 15, 1960; a supplemental report
was submitted in January, 1962. The Commission’s report, as amended, became
the Tariff Classification Act of 1962. This act implemented the TSUS, which took
effect on August 31, 1963.
Court No. 11-00091 Page 23
Lonza, 46 F.3d at 1101. The TSUS included the term “Pignolia.” Edible Nuts and Fruits,
Animal and Vegetable Products, Tariff Schedules of the United States Annotated sch. 1 part 9
sec. 145.52 (1987). Under the TSUS of 1987, the last version before the implementation of the
HTSUS, the pertinent subheadings read:
Item ... Articles Units of Quantity Rates of Duty
Other edible nuts, shelled or not shelled, blanched, or otherwise prepared or
preserved:
...
Shelled, blanched or preserved:
Almonds:
145.40 Shelled Lb. 16.5¢ per lb.
145.41 Other Lb. 18.5¢ per lb.
142.42 Brazil nuts Lb. Free
145.44 Cashews Lb. Free
145.46 Filberts Lb. 8¢ per lb.
145.48 Peanuts 1/ … 3¢ per lb.
Peanut butter Lb.
Other:
Not shelled Lb.
Other Lb.
145.50 Pecans Lb. 10¢ per lb.
145.52 Pignolia Lb. 1 ¢ per lb. 2/
145.53 Pistache Lb. 1 ¢ per lb.
145.54 Walnuts:
Pickled, immature walnuts Lb. 5¢ per lb.
Other Lb. 15¢ per lb.
Other edible nuts:
Shelled or blanched . . . 5¢ per lb
Macadamia nuts Lb. [blank]
Other Lb. [blank]
Edible Nuts and Fruits, Animal and Vegetable Products, Tariff Schedules of the United
States Annotated sch. 1, part 9, p.1-54 (1987).
Court No. 11-00091 Page 24
carried forward into the current HTSUS,12 because there is no evidence Congress intended to
change this meaning in the HTSUS. Pl.’s Br. 12–13.
First, plaintiff cites the 1921 Summaries of Trade and Tariff Information (“SOTI”)
Report13 as evidence that, from an early date, pignolia was “a term generally applicable to nuts of
pine trees, regardless of species or place of origin.” Pl.’s Br. 11. The 1921 SOTI Report
provides an explanation of the Tariff Act of 1922, a predecessor of the TSUS. See General
Notes on Para., Summary of Tariff Information 757 (U.S. Tariff Comm’n 1921). Under the
heading “Pignolia Nuts,” the 1921 SOTI Report provides:
Description, uses, and production.—Pignolia or pine nuts are the seeds of a
considerable number of both American and foreign pines. The nuts are marketed
12
The pertinent HTSUS subheading provides:
0802 Other nuts, fresh or dried, whether or not shelled or peeled:
0802.90 Other:
Pecans:
0802.90.10 In shell . . . . . . . . . . . . . . kg . . . . . . . 8.8¢/kg
0802.90.15 Shelled . . . . . . . . . . . . . . kg . . . . . .17.6¢/kg
Pignolia:
0802.90.20 In shell . . . . . . . . . . . . . . kg . . . . . . .0.7¢/kg
0802.90.25 Shelled . . . . . . . . . . . . . . kg . . . . . . . .1¢/kg
Other:
0802.90.81 In shell . . . . . . . . . . . . . . kg . . . . . . .1.3¢/kg
Shelled:
0802.90.94 Kola nuts . . . . . . kg . . . . . . . . .5¢/kg
0802.90.97 Other . . . . . . . . . kg . . . . . . . . .5¢/kg
13
The SOTI Reports are written by a “professional staff of commodity specialists,
economists, lawyers, statisticians, and accountants,” and “reflect the most recent developments
affecting U.S. foreign trade in the commodities included.” Foreword, Summary of Tariff
Information (U.S. Tariff Comm’n 1968).
Court No. 11-00091 Page 25
without the shell and in appearance somewhat resemble puffed rice. The kernels are
very rich and form an important article of food in some countries. A few species of
American pines yield edible nuts, but the domestic product is commercially not
important. Southern Europe, Chile, and Mexico produce quantities of the nut.
Imports.—Some pignolia nuts are imported; statistics of imports are, however,
lacking.
Pignolia Nuts, Summary of Tariff Information 757 (U.S. Tariff Comm’n 1921) (emphasis
added). For plaintiff, “[s]uch language indicates that the term ‘pignolia’ was understood [by the
Tariff Commission] to be synonymous with ‘pine nuts.’” Pl.’s Br. 12. Further, plaintiff asserts
that the definition in the 1921 SOTI Report should be used to interpret “pignolia” in the Tariff
Act of 1922. Pl.’s Br. 12. The Tariff Act of 1922 states: “Cream or Brazil nuts, 1 cent per
pound; filberts, not shelled, 2½ cents per pound; shelled. 5 cents per pound; pignolia nuts, 1 cent
per pound; pistache nuts, 1 cent per pound.” Tariff Act of 1922, ch. 356, 42 Stat. 858, 895,
repealed by Tariff Act of 1930, ch. 497, 46 Stat. 590 (emphasis added); Pl.’s Br. 12. According
to plaintiff, the statements concerning pignolia nuts in the 1921 SOTI Report are persuasive as to
the meaning of “pignolia” in the Tariff Act of 1922. Pl.’s Br. 12.
Next, plaintiff contends that the meaning of pignolia, accepted in the Tariff Act of 1922,
carried forward to “the relevant provision of [the] Tariff Act of 1930, and then to section 145.52
of the [TSUS].” Pl.’s Br. 12 (citations omitted). In other words, plaintiff’s argument is that the
1921 SOTI Report establishes that the meaning of pignolia nuts includes all species of pine nuts
in the Tariff Act of 1922, and that this meaning carried over to the Tariff Act of 1930 and, by
extension, to the TSUS. Pl.’s Br. 12–13 (“Thus, under the TSUS, the legal definition of the tariff
term ‘pignolia’ remained as it did under the SOTI.”). Finally, because, for plaintiff, pignolia’s
meaning was established under the TSUS, it argues that the court should continue to apply this
meaning when interpreting the HTSUS, unless there is “‘clear evidence’ of congressional intent
Court No. 11-00091 Page 26
to the contrary.” Pl.’s Br. 13 (quoting Intercontinental Marble Corp. v. United States, 27 CIT
654, 663, 264 F. Supp. 2d 1306, 1316 (2003)).
In response, the Government argues that neither 1921 SOTI Report nor the Tariff Act of
1922 establish a meaning for pignolia nuts that carried over to the HTSUS. Def.’s Br. 15–16.
This is because, neither the Tariff Act of 1930, nor the 1946 revision, use the word pignolia.14
Def.’s Br. 17. According to defendant, even if the 1921 SOTI Report sheds light on the 1922
Tariff Act, because of the gap in the word’s use in subsequent tariff schedules, the 1921 SOTI
Report is not persuasive as to the court’s interpretation of the term under the HTSUS. Thus,
defendant argues that under the Tariff Act of 1930 and its revisions, all pine nuts were classified
under a general category “Other,” because there was no pignolia classification. Def.’s Br. 17.
For defendant, this omission is important. Based on the absence of the word pignolia in the later
14
Specifically, the Tariff Act of 1930 provides:
Par. 757. Cream or Brazil nuts, not shelled, 1½ cents per pound; shelled,
4½ cents per pound; filberts, not shelled, 5 cents per pound; shelled, 10 cents per
pound; any of the foregoing, if blanched, shall be subject to the same rate of duty
as it not blanched.
...
Par. 761. Edible nuts, not specially provided for, not shelled, 2½ cents per
pound; shelled, 5 cents per pound.
Tariff Act of 1930, Pub. L. 71-361, 46 Stat. 590 (1930). In addition, the pertinent paragraphs in
the 1946 revisions to the Tariff Act of 1930 remained unchanged:
Par. 757. Cream or Brazil nuts, not shelled, 1½ cents per pound; shelled,
4½ cents per pound; filberts, not shelled, 5 cents per pound; shelled, 10 cents per
pound; any of the foregoing, if blanched, shall be subject to the same rate of duty
as if not blanched.
...
Par. 761. Edible nuts, not specially provided for, not shelled, 2 ½ cents per
pound; shelled, 5 cents per pound.
Def.’s Br. Ex. M (Revision of the Tariff Act of 1930, U.S. Tariff Comm’n 63 para. 757, 761
(June 1946)).
Court No. 11-00091 Page 27
Acts, it argues, it is impossible to say that the description found in the 1921 SOTI Report was
carried over from the Tariff Act of 1922 to the TSUS when the word was not mentioned in the
intervening Tariff Act or its revisions. See Def.’s Br. 17.
Importantly, the Government maintains that, if the court were to consider a SOTI Report,
it should turn to the more recent 1968 SOTI Report, which “provides more specific information
as to which foreign pine nuts would be considered ‘pignolia’” under the TSUS. Def.’s Br. 16.
The 1968 SOTI Report states
[t]he pignolia nut is gathered from certain species of pine trees. The nuts
imported from Italy, Portugal, and Spain are slender nuts, about ½ inch long. These
nuts enter almost entirely in the shelled form and are sold, after roasting and slating,
for eating out of hand. They are also used as an ingredient in certain Mediterranean-
style food dishes.
The domestic pine nut is short and stubby in contrast to the long, slender
appearance of the imported nut. . . . The domestic pine nuts are not directly
competitive with the imported nuts, as they differ in taste, shape, and the form in
which marketed.
Brazil, Cashew and Certain Other Nuts, Summaries of Trade and Tariff Information 264 (U.S.
Tariff Comm’n 1968) (emphasis added). Defendant argues that this language distinguishes
pignolia nuts from other pine nuts because it provides that pignolia nuts are gathered from
“certain” pine trees in Europe, whereas pine nuts, a more general term, refers to domestic nuts
from the United States. Def.’s Br. 17. Moreover, the Government also notes that the listed
geographic locations do not include China. See Def.’s Br. 16–17; Brazil, Cashew and Certain
Other Nuts, Summaries of Trade and Tariff Information 264 (U.S. Tariff Comm’n 1968).
Court No. 11-00091 Page 28
A SOTI Report can indeed help to establish the meaning of words found in earlier acts.15
Pl.’s Br. 11 (“Although not evidence of legislative intent, the SOTI is illustrative because it ‘may
be employed by the court as a vehicle for ascertaining administrative practice or particular
meanings of tariff terms.’” (quoting Abitibi Price Sales Corp. v. United States, 13 CIT 787, 796–
97 (1989)). Here, however, the 1921 SOTI Report does not establish the meaning plaintiff
asserts under the TSUS. See Lonza, 46 F.3d at 1106. Although the 1921 SOTI Report indicates
that “Pignolia” or pine nuts meant “the seeds of a considerable number of both American and
foreign pine” under the Tariff Act of 1922, the absence of the word pignolia in the Tariff Act of
1930 and subsequent revisions, suggests that this meaning was not transferred to the TSUS.
Pignolia Nuts, Summary of Tariff Information 757 (U.S. Tariff Comm’n 1921).
Moreover, the court agrees with the Government that the 1968 SOTI Report is more
persuasive when interpreting a term under the TSUS. As defendant points out, the later 1968
SOTI Report more specifically identifies distinctions between pignolia nuts and pine nuts. Thus,
“[t]he pignolia nut is gathered from certain species of pine trees. The nuts imported from Italy,
Portugal, and Spain . . . The domestic pine nut is short and stubby in contrast to the long, slender
appearance of the imported nut.” Brazil, Cashew and Certain Other Nuts, Summaries of Trade
and Tariff Information 264 (U.S. Tariff Comm’n 1968). The court finds that the 1968 SOTI
Report is persuasive as to the meaning of the term pignolia under the TSUS, at least to the extent
that it confirms the Government’s point that all pine nuts are not pignolia.
15
The Federal Circuit concluded that the SOTI Reports are persuasive when
interpreting the TSUS. Rollerblade, 112 F.3d at 485 n.2 (“Although not controlling, the
Summaries are nonetheless instructive on the meaning of a tariff term.”); United States v.
Standard Surplus Sales, Inc., 667 F.2d 1011, 1015 & n.4 (C.C.P.A. 1981) (“Though not
controlling, the Summaries have been employed as aids in ascertaining the meaning of a tariff
term.”).
Court No. 11-00091 Page 29
The conclusion here must be, then, that the meaning of the word pignolia was not
established in the TSUS so as to include the seeds of the Pinus koraiensis. Because it concludes
that the plaintiff’s asserted meaning was not established in the TSUS, the court does not address
plaintiff’s remaining arguments regarding the absence of contrary congressional intent. Cf.
Intercontinental Marble, 381 F.3d at 1173.
D. Consistent with the Relevant Explanatory Note, the Meaning of Pignolia
Does Not Include Seeds of the Pinus koraiensis
The Government argues that, based on the Explanatory Notes, the proper interpretation of
the term “Pignolia” is seeds of the Pinus pinea. See Def.’s Br. 5–6.
While not legally binding, Explanatory Notes, at least to the six-digit level, are persuasive
authority that “clarify the scope of HTSUS subheadings and . . . offer guidance in interpreting”
the HTSUS. Streetsurfing, 38 CIT at __, 11 F. Supp. 3d at 1294 (quoting Mita Copystar Am., 21
F.3d at 1082). The Federal Circuit has repeatedly “credited the unambiguous text of relevant
[E]xplanatory [N]otes” to determine the meaning of a term in the HTSUS “absent persuasive
reasons to disregard it.” Drygel, Inc. v. United States, 541 F.3d 1129, 1134 (Fed. Cir. 2008); see
LeMans, 660 F.3d at 1321 (“Use of Explanatory Notes in this manner to interpret a heading of
the HTSUS is entirely proper.”); StoreWALL, LLC v. United States, 644 F.3d 1358, 1363 (Fed.
Cir. 2011); Agfa Corp. v. United States, 520 F.3d 1326, 1330 (Fed. Cir. 2008) (holding that the
Explanatory Notes “directly address the issue under consideration,” and that “while the
Explanatory Notes are not binding, they are persuasive authority.”). It is important to note,
however, that the cases citing the persuasiveness of the Explanatory Notes have largely been
those construing a subheading’s terms to the six-digit level.
Court No. 11-00091 Page 30
The HTSUS was implemented in accordance to the International Convention on the
Harmonized Commodity Description and Coding System (“the Convention”), an international
agreement16 that “requires that signatories, in effectuating the [Harmonized System] in their
respective domestic laws, not alter the scope of a [Harmonized System] heading.”17 Victoria’s
Secret Direct, LLC v. United States, 37 CIT __, __, 908 F. Supp. 2d 1332, 1348 (2013), aff’d,
769 F.3d 1102 (Fed. Cir. 2014). Thus while the Harmonized System classified merchandise only
to the six-digit level, signatories to the agreement could add further to the subheadings (i.e., the
eight-digit level) but could not alter the scope of a heading. Id. (“[M]odifications of the scope of
16
“The World Customs Organization (WCO), established in 1952 as the Customs
Co-operation Council (CCC) is an independent intergovernmental body whose mission is to
enhance the effectiveness and efficiency of Customs administrations. . . .” Nomenclature and
Classification of Goods, World Customs Organization, http://www.wcoomd.org/en/about-
us/what-is-the-wco.aspx (last visited Nov. 9, 2016).
The system is used by more than 200 countries and economies as a basis for their
Customs tariffs and for the collection of international trade statistics. Over 98% of
the merchandise in international trade is classified in terms of the [Harmonized
System]. . . . The Harmonized System is governed by ‘The International
Convention on the Harmonized Commodity Description and Coding System.’ The
official interpretation of the [Harmonized System] is given in the Explanatory
Notes (5 volumes in English and French) published by the WCO.
Nomenclature and Classification of Goods, World Customs Organization,
http://www.wcoomd.org/en/topics/nomenclature/overview/what-is-the-harmonized-system.aspx
(last visited Nov. 9, 2016).
17
In preparing the draft version of the HTSUS for congressional consideration, the
U.S. International Trade Commission (“ITC”) explicitly recognized the obligation
of the United States, as a signatory of the Convention on the Harmonized System,
to maintain consistency with the HS nomenclature for the headings that were to be
shared by all signatories to the Convention, i.e., the headings in chapters 1 through
97.
Victoria’s Secret Direct, LLC v. United States, 37 CIT __, __, 908 F. Supp. 2d 1332, 1348
(2013), aff'd, 769 F.3d 1102 (Fed. Cir. 2014).
Court No. 11-00091 Page 31
the various parts of the Harmonized System are not permitted; however, further detailed
subdivisions for classifying goods (such as for tariff, quota, or statistical purposes) are permitted
so long as they are added and coded at a level beyond the six-digit numerical code provided in
the Harmonized System.” (citation omitted)). In other words, the contracting parties have agreed
to conform their respective tariff schedules in accordance with the Harmonized System, although
they may provide further specific detail.
This commitment is codified in 19 U.S.C. § 3005(a),18 by which Congress recognizes its
“obligation to maintain consistency with the Harmonized System.” Id. at __, 908 F. Supp. 2d
1348–49. As a result, this Court has held that “in light of the recognized obligation to maintain
HTSUS headings consistently with the [Harmonized System],” and “absent legislative intent” to
differ from the Harmonized System, the court will not presume that Congress enacted a tariff
heading with a different scope than that provided by the drafters of the Harmonized System. Id.
at __, 908 F. Supp. 2d at 1349. Thus, while at the eight-digit level the Explanatory Notes cannot
18
The statute provides:
(a) In general
The Commission shall keep the [HTSUS] under continuous review and periodically,
at such time as amendments to the Convention are recommended by the Customs
Cooperation Council for adoption, and as other circumstances warrant, shall
recommend to the President such modifications in the [HTSUS] as the Commission
considers necessary or appropriate—
(1) to conform the [HTSUS] with amendments made to the Convention;
(2) to promote the uniform application of the Convention and particularly the Annex
thereto;
(3) to ensure that the [HTSUS] is kept up-to-date in light of changes in technology
or in patterns of international trade;
(4) to alleviate unnecessary administrative burdens; and
(5) to make technical rectifications.
19 U.S.C. § 3005(a).
Court No. 11-00091 Page 32
be said to reflect the intent of the drafters of the HTSUS, they can certainly be said to reflect the
intent of the Harmonized System drafters.
This is particularly true in a case like this where the First Edition of the Explanatory
Notes was available to those who drafted the eight-digit subheadings at issue. In 1986, the WCO
issued the First Edition of the Explanatory Notes, which provided interpretive guidance for terms
in the proposed Harmonized System. Introduction, Explanatory Notes (1 ed. 1986).
Specifically, the 1986 First Edition Explanatory Notes included the term pignolia and limited it
to seeds of the Pinus pinea. That is, in 1986, the First Edition Explanatory Note to the
Harmonized System stated “pignolia nuts (seeds of the Pinus pinea).” This language remained
unchanged in the finalized 2007 Explanatory Note and its subsequent revisions. Explanatory
Note 08.02 (2007).
The court therefore finds the Explanatory Note to be informative as to the meaning of the
subheading’s words. See Pima W., Inc. v. United States, 20 CIT 110, 113 n.2, 915 F. Supp. 399,
402 n.2 (1996) (“The eight-digit level of classification is subsidiary to, not an expansion of, the
six- and four-digit levels. If the Explanatory Notes offer guidance that a product should be
excluded from a four-digit heading or six-digit subheading, one can properly infer that the
product is excluded from the eight-digit subheading.”); NEC Elecs., Inc. v. United States, 144
F.3d 788, 791 (Fed. Cir. 1998) (“We cannot accept NEC’s argument that this Explanatory Note
is only pertinent to the meaning of the six-digit subheading . . . but not the eight-digit
subheading.”).
The Explanatory Note to the Harmonized System states that: “[t]he principal nuts of this
heading are almonds (sweet or bitter), hazelnuts or filberts, walnuts, chestnuts (Castanea spp.),
Court No. 11-00091 Page 33
pistachios, pecans and pignolia nuts (seeds of the Pinus pinea).”19 Thus, at least to the six-digit
level, the Explanatory Note limits the words pignolia nuts to the seeds of the Pinus pinea. In
other words, the Explanatory Note excludes plaintiff’s seeds to the six-digit level and “one can
19
The Explanatory Note, in full, provides:
08.02- OTHER NUTS, FRESH OR DRIED, WHETHER OR NOT SHELLED OR
PEELED.
- Almonds:
0802.11 -- In Shell
0802.12 -- Shelled
‐ Hazelnuts or filberts (Corylus spp.):
0802.21 -- In shell
0802.22 -- Shelled
‐ Walnuts:
0802.31 -- In shell
0802.32 -- Shelled
0802.40 - Chestnuts (Castanea spp.)
0802.50 - Pistachios
0802.90 - Other
The principal nuts of this heading are almonds (sweet or bitter), hazelnuts or
filberts, walnuts, chestnuts (Castanea spp.), pistachios, pecans and pignolia nuts (seeds of
the Pinus pinea).
This heading also covers areca (betel) nuts used chiefly as a masticatory, and cola
(Kola) nuts used both as a masticatory and as a base in the manufacture of beverages.
The heading does not include:
(a) Empty walnut or almond hills (heading 14.04).
(b) Ground-nuts (heading 12.02), roasted ground-nuts or peanut butter (heading 20.08).
(c) Horse chestnuts (Aesculus hippocastanum) (heading 23.08).
Explanatory Notes to the Harmonized System 08.02 (1986).
Court No. 11-00091 Page 34
properly infer that the product is excluded from the eight-digit subheading.”20 Pima, 20 CIT at
113 n.2, 915 F. Supp. at 402 n.2.
Moreover, the drafters of the eight-digit subheadings had available to them not only the
First Edition Explanatory Notes, but also the 1968 SOTI Report when they did their work. The
1968 SOTI Report, as has been noted, is instructive as to the meaning of a term under the TSUS,
and suggests that the term pignolia is limited to seeds of the Italian Stone pine (seeds of the
Pinus pinea). Rollerblade, 112 F.3d at 485 n.2; Brazil, Cashew and Certain Other Nuts,
Summaries of Trade and Tariff Information 264 (U.S. Tariff Comm’n 1968) (“[t]he pignolia nut
is gathered from certain species of pine trees. The nuts imported from Italy, Portugal, and Spain
are slender nuts about ½ inch long.”). This “pignolia” subheading remained a part of the TSUS
until its last version in 1987.21
20
It is worth noting that the Federal Circuit’s holding in Sigma-Tau Healthscience,
is not inapposite. In that case, the disputed heading’s Explanatory Note’s definition of vitamin
under heading 29.36 directly conflicted with the HTSUS’s eight-digit country specific
subheading 2936.29.50.20. Sigma-Tau Healthscience, No. 16-1125, at *14. The Federal Circuit
concluded that, because “[t]his portion of the definition of ‘vitamin’ in [the Explanatory Note]
contradicts the express inclusion of vitamin D under the HTSUS heading,” and therefore “must
be disregarded.” Id. That is, the drafters of the HTSUS expressly included, at the eight-digit
country specific level, a classification incompatible with the definition provided in the
Explanatory Notes. Here, however, the meaning suggested by the Explanatory Note does not
conflict with the HTSUS’s eight-digit country specific heading, but instead is persuasive in
clarifying the meaning of undefined tariff terms.
21
The progression of the TSUS subheading to the applicable HTSUS subheading is
also significant. The TSUS, under the heading “Other edible nuts, shelled or not shelled,
blanched, or otherwise prepared or preserved” provides for: almonds, Brazil nuts, cashews,
filberts, peanuts, pecans, pignolia, pistache, walnuts, and macadamia nuts. Edible Nuts and
Fruits, Animal and Vegetable Products, Tariff Schedules of the United States Annotated sch. 1,
part 9, p.1-54 (1987). In comparison, the first version of the HTSUS subheading 0802 provides
for: almonds, hazelnuts or filberts, walnuts, chestnuts, pistachios, and pignolia nuts. HTSUS
0802 (1989). The applicable 2009 HTSUS remains substantially the same as the 1989 version.
HTSUS 0802 (2009).
Court No. 11-00091 Page 35
Therefore, in 1988 the drafters of the HTSUS had before them the TSUS, the 1968 SOTI
Report, and the 1986 First Edition of the Explanatory Notes.22 These sources all tend to define
pignolia narrowly, as seeds of the Pinus pinea. Moreover, when drafting the HTSUS, the
international agreement reached at the Convention, as well as domestic law, prevented the
drafters from changing or departing from the headings and subheadings in the Harmonized
System when further specifying the scope of the classifications at the eight-digit level.
Victoria’s Secret Direct, 37 CIT at __, 908 F. Supp. 2d at 1348.
Based on foregoing, the court holds that term “Pignolia” in HTSUS subheading
0802.90.25 does not include “seeds of the Pinus koraiensis.”
E. This Case is Distinguishable from Intercontinental Marble
In Intercontinental Marble, the parties disagreed as to the proper interpretation of the
22
After the Harmonized System and Explanatory Notes, Congress passed the
Omnibus Trade and Competitiveness Act to incorporate the international agreement
requirements into U.S. law. Omnibus Trade and Competitiveness Act, Pub. L. 100–418, H.R.
Rep. No. 100-576, at 549 (Conf. Rep.), as reprinted in 1988 U.S.C.C.A.N. 1547, 1582. The
legislative history to the Omnibus Trade and Competitiveness Act provides:
Status of Explanatory Notes
The Explanatory Notes constitute the Customs Cooperation Council’s
official interpretation of the Harmonized System. They provide a commentary on
the scope of each heading of the Harmonized System and are thus useful in
ascertaining the classification of merchandise under the system.
The Explanatory Notes were drafted subsequent to the preparation of the
Harmonized System nomenclature itself, and will be modified from time to time by
the CCC’s Harmonized System Committee. Although generally indicative of
proper interpretation of the various provisions of the Convention, the Explanatory
Notes, like other similar publications of the Council, are not legally binding on
contracting parties to the Convention. Thus, while they should be consulted for
guidance, the Explanatory Notes should not be treated as dispositive.
Omnibus Trade and Competitiveness Act, Pub. L. 100–418, H.R. Rep. No. 100-576, at 549
(Conf. Rep.), as reprinted in 1988 U.S.C.C.A.N. 1547, 1582.
Court No. 11-00091 Page 36
term “marble” in HTSUS 6802. See Intercontinental Marble, 27 CIT at 658, 264 F. Supp. 2d at
1312. This Court, as well as the Court of Appeals, held that “marble” had an “established”
meaning under the TSUS. See id. at 661, 264 F. Supp. 2d at 1314. Therefore, this Court
concluded, because there was already an established meaning, the contradictory Explanatory
Note was unpersuasive. Id. at 668, 264 F. Supp. 2d at 1320. Plaintiff urges the court to find that
this case is analogous to Intercontinental Marble. Pl.’s Br. 16–18. In other words, plaintiff
argues that the court should disregard the Explanatory Note because it conflicts with pignolia’s
established meaning.
This case, however, is distinguishable from Intercontinental Marble. There, the
Explanatory Note differed from an established meaning of the term. Here, by contrast, plaintiff
failed to demonstrate an established meaning for “Pignolia” including its product, the seeds of
the Pinus koraiensis. Accordingly, the Explanatory Note does “not contradict the common
commercial meaning . . . but instead clarifies the scope of the term.” StoreWALL, 644 F.3d at
1363.
Finally, “[i]t is the court’s independent duty to arrive at ‘the correct result, by whatever
procedure is best suited to the case at hand.’” Lerner, 37 CIT at __, 908 F. Supp. 2d at 1318
(quoting Jarvis Clark, 733 F.2d at 878). After reviewing dictionary definitions, industry articles,
SOTI Reports, the Explanatory Notes, and the HTSUS’s history, the court is persuaded that the
HTSUS 0802.90.25 subheading “Pignolia” is limited to “seeds of the Pinus pinea” as indicated
by the Explanatory Note 08.02. Therefore, the subject entries, seeds of the Pinus koraiensis,
were properly classified under HTSUS 0802.90.97 for “Other nuts, fresh or dried, whether or not
shelled or peeled: Other: Other: Shelled: Other.”
Court No. 11-00091 Page 37
CONCLUSION
For the reasons stated above, plaintiff’s motion for summary judgment is DENIED, and
defendant’s cross–motion for summary judgment is GRANTED. Judgment will be entered
accordingly.
Dated: December 2, 2016
New York, New York
\s\ Richard K. Eaton
________________________________
Richard K. Eaton, Judge