Firstrax v. United States

Slip Op. 11 – 133
UNITED STATES COURT OF INTERNATIONAL TRADE
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FIRSTRAX, DIV. OF UNITED PET GROUP,
INC., :
Plaintiff,
:
v. Court No. 07-00097
:
UNITED STATES,
:
Defendant.
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Opinion
[Upon cross-motions as to classification
of port-a-crates, summary judgment for
the plaintiff.]
Decided: October 21, 2011
Barnes Richardson & Colburn (Lawrence M. Friedman and Shama
K. Patari) for the plaintiff.
Tony West, Assistant Attorney General; Barbara S. Williams,
Attorney in Charge, International Trade Field Office, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(Jason M. Kenner); and Office of the Assistant Chief Counsel,
International Trade Litigation, U.S. Customs and Border
Protection (Beth Brotman), of counsel, for the defendant.
AQUILINO, Senior Judge: This test case contests
classification by U.S. Customs and Border Protection (“CBP”) of
merchandise imported from China for the plaintiff sub nom. port-
a-crate® under copious heading 4202 of the 2005 Harmonized Tariff
Schedule of the United States (“HTSUS”), to wit,
Court No. 07-00097 Page 2
Trunks, suitcases, vanity cases, attache
cases, briefcases, school satchels, spectacle
cases, binocular cases, camera cases, musical
instrument cases, gun cases, holsters and
similar containers; traveling bags, insulated
food or beverage bags, toiletry bags,
knapsacks and backpacks, handbags, shopping
bags, wallets, purses, map cases, cigarette
cases, tobacco pouches, tool bags, sports
bags, bottle cases, jewelry boxes, powder
cases, cutlery cases and similar containers,
of leather or of composition leather, of
sheeting of plastics, of textile materials,
of vulcanized fiber or of paperboard, or
wholly or mainly covered with such materials
or with paper[,]
in particular, subheading 4202.92.9026 (“Other . . . With outer
surface of sheeting of plastic or of textile materials . . .
Other . . . Other . . . Other: Of man-made fibers . . . 17.6%).
The importer duly protested that the goods should have been
classified as other made up (textile) articles within the meaning
of HTSUS subheading 6307.90.9889.
Upon CBP denial of the protest and liquidation of the
duties claimed, the plaintiff filed its complaint herein that has
been answered by the defendant, which thereafter interposed a
motion for summary judgment upon the joined issue(s). Plaintiff’s
simultaneously-filed response is in the form of a cross-motion
for summary judgment.
Court No. 07-00097 Page 3
I
The court’s jurisdiction is pursuant to 28 U.S.C. §§
1581(a) and 2631(a), and its Rule 56(h)(1) requires that any
motion for summary judgment contain a separate, short and concise
statement of the material facts as to which the moving party
contends there is no genuine issue to be tried.
Defendant’s motion contains such a statement, in part,
as follows:
1. The imported merchandise consists of 12
models of soft crates.
2. Soft crates are a subset of the pet
containment category of pet products.
3. The pet containment line of products also
includes plastic crates and wire kennels.
4. Each of the 12 models of soft crates is
comprised of a metal skeleton covered by a textile
skin.
5. The soft crates are portable products
designed to transport a docile or crate-trained pet in
the back of a sport utility vehicle (“SUV”).
6. The soft crates at issue are products
designed to contain docile or crate-trained pets in the
home, at a friend’s home, at the park, on camping
trips, etc.
7. The soft crates at issue vary in size based
on the size of animal they are designed to contain.
Court No. 07-00097 Page 4
8. The soft crates at issue range in size from
those used to contain and transport 10 pound pets to
those used to contain and transport 70 pound pets.
9. All models of the soft crates at issue are
designed to protect a docile or crate-trained pet in
the car by keeping them contained in the back of the
vehicle, and preventing them from impeding the driver.
10. All models of the soft crates at issue
protect docile or crate-trained pets from the sun when
used out[]doors.
11. All models of the soft crate at issue offer
docile or crate trained pets protection from running
away and/or getting lost when used at the park,
camping, or anywhere outdoors.
12. All models of the soft crates at issue are
designed to be portable.
13. All models of the soft crates at issue are
designed to prevent unwanted behavior such as jumping
on visitors by confining the pets.
14. The soft crates at issue are designed to
contain a docile or crate-trained pet for reasonable
lengths of time.
15. The soft crates at issue are designed to
contain a docile or crate-trained pet in the home, thus
preventing the pet from damaging furnishings in the
home.
16. The soft crates are designed to contain
trained pets until such time as their owners let them
out.
17. The soft crates at issue offer certain levels
of protection for pets placed inside of them.
18. Soft crates are a product designed to contain
docile pets.
Court No. 07-00097 Page 5
19. All models of the soft crate at issue are
designed to keep docile or crate-trained pets in their
proper place both in and out of the home, including
during transport in an SUV.
The defendant proffers support for each of these representations,
the citations to which have been omitted in the interest of
brevity.
Plaintiff’s written response to the foregoing admits 1,
2, 3, 4, 7, 10, 12, 13, and 17. Its crafted reply to the other
averments is:
5. Denies. Plaintiff avers that the soft crates
have no design features or characteristics making them
suitable for transporting pets.
6. Denies that soft crates are products only
designed to contain docile or crate-trained pets in the
home, at a friend’s home, at the park, or on camping
trips. Admits that soft crates provide a den-like home
for dogs in those settings.
8. Denies that soft crates transport or contain
pets while they are housed and in use. Admits that
soft crates range in size from those used to house 10
pound pets to those used to house 70 pound pets. . . .
Plaintiff avers that the pound measurement is
irrelevant and intended only as an approximation of
physical size.
9. Denies that soft crates were designed to
protect pets by keeping them contained in the back of a
vehicle. Admits that soft crates may occasionally be
used to provide home environments for pets and to
prevent crate-trained pets from distracting the driver
of a motor vehicle.
Court No. 07-00097 Page 6
11. Denies. Plaintiff avers that the level of
protection provided by soft crates is not meaningful.
14. Denies. Plaintiff avers that the soft crates
are designed to house pets for a reasonable length of
time.
15. Denies. Plaintiff avers that the soft crates
provide an indoor home environment for the docile or
crate-trained dogs. . . . Because dogs cannot be
permanently contained, the soft crates do not protect
home furnishings.
16. Denies that soft crates are designed to
contain trained pets until such time as their owners
let them out. Admits that soft crates are designed to
house pets for as long as they like to be housed.
18. Denies. Plaintiff avers that the soft crates
are de[s]igned to house docile pets.
19. Denies that soft crates have any design
features adapting them to use in any vehicle. . . .
Denies that the soft crates are designed to keep docile
pets in their proper place at home or during transport
in an SUV. Admits that soft crates are designed to
provide den-like homes for pets both in and out of the
home.
Citations omitted.
In support of its own cross-motion for summary
judgment, the plaintiff has filed a Rule 56(h) Statement of
Material Facts to Which No Genuine Dispute Exists, which the
defendant correctly points out is not in keeping with the letter
or the spirit of the rule, given its 21 pages and 178 individual
averments. To sift out some of them:
Court No. 07-00097 Page 7
10. Soft crates were created to fill a need in
the pet industry for soft-sided temporary pet homes.
11. Based on its own market research in 2001,
Firstrax determined that there was a need for a
hospitable and aesthetic alternative to rigid wire
crates or plastic carriers.
12. The marketing target of Firstrax was to
create a niche market for docile or crate-trained pets,
in particular dogs, to have a soft-sided crate that
provides a “den” or “cave-like” environment.
13. The soft crates were designed to have
furniture and a home decor aesthetic, rather than a
harsh wire or molded plastic aesthetic.
20. The soft crates are constructed of nylon
fabric stretched over a cube made of tubular steel.
21. The steel structure consists of a top and
bottom rectangular tube structure connected at each of
the four corners by four vertical poles.
22. The steel structure is designed to be
collapsed or set up in one movement, without the use of
tools.
23. The initial design innovation involved
creating a slide and snap locking mechanism on the
tubular structure for easy set up, which also folds
flat for easy movement and storage.
24. The tubular structure supports only the edges
of the cube: the top, sides and bottom of the soft
crates consist solely of nylon fabric.
25. The sides and doors of the crates have mesh
windows.
26. The doors and entry points have a zip closure
that is designed to be rolled up and secured with a
strap to allow the door to remain open if desired.
Court No. 07-00097 Page 8
28. During the production process, the strength
of the inner steel tubular structure was tested
informally by having a 100-pound employee stand on the
steel structure only.
29. The main concern of the testing was to see if
the steel tubular structure would warp under too much
weight, resulting in the inability for the mounting
mechanism to function properly.
30. There were no tests conducted regarding the
weight that the crate would carry, as this was not the
intended purpose of the soft crates.
36. Soft crates are designed to rest on a solid
surface, such as the floor or ground, which provides
the needed support so that the weight of the pet does
not cause the bottom of the crate to buckle or tear.
37. The strength of the bottom and side panels
was not tested during the design or production stage
because the bottom panel was never designed to resist
or carry weight.
38. Some models of the soft crates have fabric
tabs with grommets to allow the crates to be staked
into the ground for outdoor use.
39. The soft crates were initially designed to be
a portable area for pets, similar to playpens, which
are designed to provide a comfortable environment for
children either in their own homes or at travel
destinations, but not to carry or transport children.
42. For the smaller models, handles were placed
on the top of the models to aid in moving the empty
soft crates from place to place without having to
collapse it.
43. The smaller models were not designed to be
moved with the pets inside them because there is no
rigid bottom on the soft crate to support the pet
during transport.
Court No. 07-00097 Page 9
44. None of the soft crate models were [sic]
tested to see if they could accommodate the weight
listed, because they were not designed to be weight-
bearing crates.
45. The soft crates were designed to be
stationary homes.
46. For larger models, handles were placed along
the bottom of the side panel, so the empty crate could
be folded flat and carried from place to place when
collapsed, much like an architect’s portfolio.
52. The soft crates were not designed to
duplicate the function of pet carriers, because of the
lack of rigid bottom and awkwardness in carrying.
74. The soft crates are used by the pet to allow
it to take a break and to provide the pet with [a]
preferred place to sleep at night.
86. The soft crates, if properly used, . . . are
portable pet homes for dogs that have been trained to
accept them as their den or home.
93. Soft crates can not replace a [wire or
plastic] kennel if the intent of the pet owner is to
securely contain a dog or animal.
98. The fabric used for the soft crates is not
waterproof, nor is it insulated.
99. The top and sides of the soft crates do not
have the capacity of protecting a pet inside from cold,
rain or snow.
100. If they are used outside, they are
appropriate for use in late spring and summer in most
climates.
108. The soft crate does not provide the security
normally associated with wire kennels or plastic
crates.
Court No. 07-00097 Page 10
111. In contrast to the wire crates and plastic
carriers that already existed in the market, the soft
crates were designed to have rounded corners so that
they would fit in the home environment without damaging
floors or car seats when the empty crate was being
moved about.
117. . . . [T]he fabric shell and mesh windows can
be torn by any pet improperly confined in a soft crate.
118. Improper confinement means using the soft
crate as a kennel and not as a pet home.
121. In contrast to rigid plastic, wood, or metal
kennels that were designed for the secure containment
of pets, the zipper and latch of a soft crate will not
prevent a dog from easily escaping a soft crate by
ripping through the fabric.
122. Soft crates were not designed with structural
or weight bearing requirements that would enable the
soft crates to be used for the purpose of transporting
pets.
123. The soft crates do not meet the IATA airline
transport safety standards for either domestic or
international flight.
125. Soft [c]rates are not small enough to fit
under the seat; they are not sturdy enough for cargo
area.
127. The purpose of pet carriers is to safely and
securely transport an animal.
128. Pet carriers are usually constructed of “high
impact molded plastic.”
129. Pet [c]arriers have 1) the structural
integrity to withstand transit while protecting the
animal inside; 2) secure locking mechanisms to prevent
escape; 3) rigid floor construction that allows the
animal to stand when the carrier is either carried, or
placed on an uneven surface; and 4) non-absorbent, leak
Court No. 07-00097 Page 11
proof floor material that will contain small amounts of
urine to protect surfaces the carrier is place[d] on[.]
135. For soft crates, water and urine spills will
soak into the bottom, making it unsuitable for the
transport or containment of pets over any extended
period of time.
136. Any carrier intended by design as suitable
for airline use must comply with U.S. domestic and IATA
international standards for both cargo and in-cabin
transport.
140. Carriers and kennels must have a rigid bottom
and a stable base that is integral to the unit, which,
unlike the soft crates, do not rely on the ground or
floor to support the animal inside.
141. Pet carriers or kennels used for the
transport of pets constructed of steel wire or rigid
plastic are strong enough to reasonably prevent even
untrained pets from escaping.
143. In the event that a soft crate is used in a
motor vehicle, the crate should be first put in the
vehicle, and the pet then placed in the crate.
144. The purpose of using a soft crate in a motor
vehicle is to provide the pet with a comfortable home
environment rather than to provide the pet safe and
secure transport.
145. . . . [T]he design features of the soft crate
are not intended to make them a safe means of
transporting pets in a moving motor vehicle.
148. Soft crates do not have loops incorporated
into their structure that would allow the crates to be
strapped in using seat belts.
149. Use in a motor vehicle is strictly for
docile, crate-trained dogs to provide a safe and
anxiety free environment for a traveling pet.
Court No. 07-00097 Page 12
155. In contrast to the soft crates, pet carriers
designed for use in motor vehicles include features
such as tie-down strap holes molded into the rigid
plastic of the carrier body, or have molded clips which
can secure the pet carrier with a seat belt or other
tie down strap.
156. Pet carriers are sized to limit the pet’s
ability to move around while . . . inside . . . so that
the pet is encouraged to lie down.
157. The lack of extra space helps to protect the
pet during a sudden severe driving maneuver or crash.
158. Neither the steel frame nor the soft crate
nylon cloth exterior were designed to withstand impacts
likely to “result from a vehicle crash, sever[e]
maneuver, or from other stationary or loose objects in
a vehicle that could damage the soft crate and the pet
inside under crash conditions.”
163. The locking system of the tubular structure
could collapse if a pet were put inside the soft crate
and the crate would be lifted or carried.
164. In addition, the non-rigid fabric bottom
would stretch with the weight of the pet inside when
lifted up, with the potential for the pet to eventually
fall through the bottom panel.
165. For the smaller sized crates, the unsupported
bottom panel would sag under the weight of the pet,
causing the pet to be uncomfortable.
166. The lack of a rigid bottom panel on the soft
crates makes them unsuitable for transporting pets
inside them.
167. Although some of the smaller sizes originally
had shoulder straps, it was determined that it was
impractical to carry the crate in this manner, because
its steel structure makes the carrier shift weight and
lean over the crate to compensate for the awkward angle
of the crate hanging from a shoulder strap.
Court No. 07-00097 Page 13
168. The handles incorporated onto the top of the
smaller crates were intended to allow consumers the
option of moving the soft crate around without the pet
inside, without having to collapse the crate and
reassemble it at the destination.
169. There are no handles incorporated onto the
larger crates, because of the impracticality of moving
a large soft crate without first collapsing it.
170. The soft crates do not provide any pockets
for interior organization of the pets or their
accessories, because they are designed to provide an
enclosed space to house a pet.
171. The soft crates are not designed to hold
toys, cushions, or blankets. These items may be placed
inside the crates, but they would have to be removed
when the crate is folded for transport, because the
crates fold completely flat.
172. The soft crates of the type at issue in this
case are not intended to serve as an organizer of pet
toys, treats, bedding, etc.
173. Dogs can and do escape from soft crates.
174. It is not recommended, or even feasible in
some cases, to leave a pet inside a soft crate for an
extended period of time.
175. Dogs would only stay in a soft crate for time
periods that are reasonable based on the training that
the dog has had.
176. The length of time a pet could stay in a soft
crate would depend on factors such as the time duration
used during training, the health and age of the pet,
and . . . feeding and watering requirements.
Citations omitted.
Court No. 07-00097 Page 14
Defendant’s even-lengthier Response to Plaintiff’s
Separate Statement of Undisputed Facts admits outright or in sum
and substance plaintiff’s foregoing paragraphs 13, 20, 21, 25,
26, 30, 38, 42, 43, 44, 46, 98, 100, 111, 123, 127, 136, 143,
145, 148, 149, 179, 171, 175, and 176. It either denies or
pleads lack of information sufficient to answer all of the other
averments of the plaintiff quoted above.
II
Whatever the precise disagreements between the parties
regarding the facts herein, their cross-motions for summary
judgment are clearly well-founded. That is, the court concludes
after consideration of the foregoing statements that there is no
genuine issue of material fact that requires trial within the
meaning of USCIT Rule 56 and teaching of Celotex Corp. v.
Catrett, 477 U.S. 317 (l986), and Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986), and their progeny. The dispute is
simply a matter of law, to wit, interpretation of provisions of
the HTSUS.
Plaintiff’s merchandise at bar is not found therein eo
nomine, whereupon CBP defends its classification under heading
4202 via ejusdem generis. In Avenues in Leather, Inc. v. United
Court No. 07-00097 Page 15
States, 423 F.3d 1326 (Fed.Cir. 2005), the court pointed out in
another classification case focusing on the very same heading
that
ejusdem generis requires that, for any imported
merchandise to fall with [its] scope . . ., the
merchandise must possess the same essential
characteristics or purposes that unite the listed
exemplars . . ..
423 F.3d at 1332, citing Sports Graphics, Inc. v. United States,
24 F.3d 1390, 1392 (Fed.Cir. 1994).
However, a classification under the ejusdem
generis principle “is inappropriate when an imported
article has a specific and primary purpose that is
inconsistent with that of the listed exemplars in a
particular heading.”
Id., quoting Avenues in Leather, Inc. v. United States, 178 F.3d
1241, 1244 (Fed.Cir. 1999). And the court of appeals proceeded
to point out that it had previously held that
“the common characteristic or unifying purpose of the
goods in heading 4202 consist[s] of ‘organizing,
storing, protecting, and carrying various items.’”
Id., quoting Avenues in Leather, Inc. v. United States, 317 F.3d
1399, 1402 (Fed.Cir. 2003).
Following this approach does not lead this court to
conclude that plaintiff’s port-a-crates land within the ambit of
HTSUS heading 4202.
Court No. 07-00097 Page 16
A
To quote the paragon American lexicon, to “organize” is
to “arrange or constitute in interdependent parts, each having a
special function, act, office or relation with respect to the
whole”. Webster’s New International Dictionary of the English
Language, Unabridged, p. 1719 (2d ed. 1934). Defined another
way, organize means “to bring together or form as a whole or
combination, as for a common objective.” Funk & Wagnalls
Standard Dictionary of the English Language, p. 890 (int’l ed.
1963).
In the context of heading 4202, organization implies
multiple items placed together in a single container. See, e.g.,
Totes, Inc. v. United States, 18 CIT 919, 865 F. Supp. 867 (1994)
(automotive tools and supplies in tool cases), aff’d, 69 F.3d 495
(Fed.Cir. 1995); Len-Ron Mfg. Co. v. United States, 24 CIT 948,
118 F. Supp. 2d 1266 (2000) (multiple cosmetics in cases therefor),
aff’d, 334 F.3d 1304 (Fed.Cir. 2003); Processed Plastic Co. v.
United States, 29 CIT 1129, 395 F. Supp. 2d 1296 (2005)(children’s
toys in children’s backpacks), aff’d, 473 F.3d 1164 (Fed.Cir.
2006).
The plaintiff is correct in pointing out that named
exemplars of heading 4202 are specifically designed to organize a
Court No. 07-00097 Page 17
number of items. Here, each port-a-crate is intended for only
one pet. None is designed for more than a single animal. Unlike
toiletry bags, for example, which often have multiple
subcompartments, the crates are “soft-sided temporary doghouses”
“developed with only one compartment and intended to house only a
dog”. Indeed, it is doubtful that anxious dogs (or cats) are
capable of “organization”1 in such goods, unlike the way
toiletries or pairs of socks or pieces of jewelry or of cutlery
et cetera are.
B
To “store” is to keep or set aside for future use. See,
e.g., Webster’s Third New International Dictionary, Unabridged,
p. 2252 (1981). Defendant’s preferred definition is:
3. To place or leave in a location (as a warehouse,
library, or computer memory) for preservation or use
later. As such a particular item’s ability to hold or
contain something.
Defendant’s Memorandum, p. 10, citing Merriam-Webster Online
Dictionary, http://merriam-webster.com/dictionary/store (2009).
____________________
The court understands that “simply ‘containing’ items is
1
at least a rudimentary form of ‘organization’”. Processed Plastic
Co. v. United States, 29 CIT 1129, 1142, 395 F. Supp. 2d 1296, 1309
(2005). However, the test for classification is whether the
organizational ability is an essential characteristic of the
subject merchandise. See, e.g., Totes, Inc. v. United States, 18
CIT 919, 924, 865 F. Supp. 867, 872 (1994). The court cannot so
find here.
Court No. 07-00097 Page 18
While containing and storing things are similar, they are not
equivalent. Contain is defined as:
1: To keep within limits: hold back or hold down: as
a: RESTRAIN, CONTROL . . . SUPPRESS . . .
b: CHECK, HALT, WITHSTAND, STEM . . .
c: to confine (the enemy) to the immediate terrain
or to a limited area: prevent (the enemy) from
making a breakthrough . . ..
Webster’s Third New International Dictionary, Unabridged, pp.
490-91 (1981)(capitalization in original). Whereas to “store” is
to put items and other inanimate objects aside for the future,
to “contain” can be to restrain or suppress animated things from
acting a certain way.
In this case, the plaintiff argues, and the court
concurs, that, as a practical matter,
soft crates do not have the ability to store dogs away
for later use at the convenience of the owner. First,
the dogs must be trained to accept the soft crate as
its[sic] home. . . . Second, the soft crates provide no
means of supplying food or water to dogs, nor do they
have a mechanism for dealing with urine or solid waste.
Therefore, any “containment” function is only
incidental to the dog[‘s] coming and going of its own
volition.
Plaintiff’s Response to Defendant’s Motion, p. 7 (citations
omitted). The plaintiff, noting defendant’s attempt to equate
Court No. 07-00097 Page 19
living, breathing dogs with inanimate objects like tools or beach
toys, states further:
. . . Dogs are pets. They are members of the family,
working partners, assistants to the disabled, and
valuable show dogs. Treating the[m] as items to be
stored for later retrieval and use invokes images of
the kind of cruel containment devices the soft crate
was designed to replace in the home environment. A
more apt comparison is to children who may be placed in
a corner or play pen, but would not be described as
“stored” or “contained.”
Id. at 7.
On their face, exemplars listed in heading 4202 store
and/or contain inanimate objects of personal property, not
living, breathing animals. They include, inter alia, tobacco
pouches, suitcases, handbags, wallets, toiletry bags, jewelry
boxes, purses, cigarette cases, cutlery cases, musical-instrument
cases, camera cases, school satchels, and gun cases. See
generally Totes, Inc. v. United States, supra.
Port-a-crates on the other hand are not designed to
store living four-legged pets. They are made of soft, permeable
materials of mesh and nylon, capable of being worn or torn
through. Whatever the precise structural integrity of the
crates, they are not meant to warehouse their animate visitors.
Unlike pet carriers made of rigid materials, such as hard
Court No. 07-00097 Page 20
plastic, metal or wood, the soft crates do not comply with either
U.S. domestic or IATA international standards for either cargo or
in-cabin airline transport.
Rather, a pet could, “if it chooses, chew and tear
through the crate at any time. . . . The crate is only meant to
act as a home for a dog and is purposely not made to cage or
contain a dog.” Plaintiff’s Response to Defendant’s Motion, p. 4
(citations omitted).
C
Nor do the port-a-crates provide any significant
protection, the third essential characteristic of the heading
4202 exemplars. As set forth above, they are made of nylon and
mesh that are permeable to aggressive animal fangs and claws and
capable of being torn through. They do not provide much
protection from weather elements, as they are not waterproof and
do not prevent leakage. They are not airline safe; nor would
they protect a pet from being crushed in an automobile collision.
Rather, the port-a-crates are meant to be used in a home or other
stable setting to provide a den-like refuge for their occupants.
Any protection from the sun or minor impacts would be incidental,
and not their essential purpose.
Court No. 07-00097 Page 21
D
The last defining characteristic of the heading 4202
exemplars is their ability to carry their intended contents,
which they will organize, store, and protect. See, e.g., Totes,
Inc. v. United States and Processed Plastic Co. v. United States,
supra. Here, the port-a-crates’ structure and nylon materials
prove they are not meant to hold and transport animals safely.
They
are not designed or tested to withstand the weight of a
dog when carried. The crates are designed to stand on
a solid surface such as a floor. Carrying the crate
while the dog is housed inside is not only
uncomfortable, . . . it is unsafe for the dog. . . .
The crate bottoms are not reinforced or rigid and can
buckle under the weight of the dog. . . .
Plaintiff’s Response to Defendant’s Motion, p. 11 (citations
omitted).
While the defendant correctly notes that “[t]here is no
weight or structural integrity requirement specified for heading
4202[]”2, the crates’ design and structure make them incapable of
desirable conveyance of their living contents. Hence, the court
cannot find that plaintiff’s port-a-crates are pet carriers.
____________________
Defendant’s Memorandum, p. 15, citing Processed Plastic
2
Co. v. United States, 473 F.3d 1164, 1171 (Fed.Cir. 2006).
Court No. 07-00097 Page 22
III
In view of the foregoing, defendant’s motion for
summary judgment cannot be granted. As for plaintiff’s cross-
motion, at first blush, classification of the port-a-crates as
posited under HTSUS chapter 63 (Other Made Up Textile Articles
...) might seem anomalous, but the memorandum of law in support
thereof persuades this court that the motion should be granted
due to lack of an HTSUS subheading more correct than the basket
provided by 6307.90.9889.
Judgment will enter accordingly.
Decided: New York, New York
October 21, 2011
/s/ Thomas J. Aquilino, Jr.
Senior Judge