Importer Says CIT's Reading of 'Other' Provision Would Greatly Expand Its Scope Throughout HTS
The Court of International Trade's "unique and unprecedented interpretation" of an "other" provision in the Harmonized Tariff Schedule comes from a "false premise" that would greatly expand its scope throughout the HTS, importer Nature's Touch Frozen Foods argued in its Sept. 27 opening brief at the U.S. Court of Appeals for the Federal Circuit. Seeking its preferred classification of frozen fruit mixtures, the importer said the trade court's reading would also "greatly limit operation of the provisions in [General Rules of Interpretation] 3(b) and (c) which are designed to classify mixtures" (Nature's Touch Frozen Foods (West) v. United States, Fed. Cir. # 23-2093).
The suit concerns 14 types of frozen fruit mixtures, five of which contain vegetable ingredients, that Judge Stephen Vaden said are properly classified under Harmonized Tariff Schedule of the U.S. subheading 0811.90.80 as "other" frozen fruits, dutiable at 14.5% (see 2305260048). Vaden said heading 0811 was proper since the term "Fruit ... frozen" describes the goods as a whole. Nature's Touch seeks classification under subheading 2016.90.98 as "[f]ood preparations not otherwise specified or included" -- a basket provision that can only be used if there is no other heading that covers the goods more specifically.
At the Federal Circuit, Nature's Touch noted that the HTS provides specifically for "mixtures" in a heading or subheading, allowing them to be classified under GRI 1. Where this rule fails, the HTS says later GRIs "must be consulted," with GRI 3(b) finding that a mixture should be classified as if it were only made of the single material that imparts the mixture's "essential character." If no material fits this description, GRI 3(c) says that the mixture should be classified under the component material tariff heading that occurs last in numerical order in the tariff.
The importer said it found no case law showing that mixtures can be classified in a residual provision for "other" goods found in a heading or subheading, as the trade court ruled. "Under the unique interpretation adopted by the Trade Court in this action, an 'other' provision, which is meant to exclude items named in preceding provisions, now includes those previously-named items if they are imported together in a mixture with other previously named (and excluded) items."
This interpretation would carry ill effects down the HTS, the brief said. For the present case, heading 0811 does not have any language at the four-, six- or eight-digit subheading level that provides for "mixtures" of such fruits. Instead, it has a number of provisions that describe individual fruits and a provision that provides for "other" fruits, Nature's Touch argued. Vaden incorrectly supposed that subheadings 0811.20 and 0811.90.25 provide for "mixtures." However, for goods to be mixture, they must either be specifically described in a heading or subheading providing for mixtures or consist of items classified in two or more tariff provisions.
Nature's Touch added that CIT's decision does not comport with any "canons of statutory interpretation." For instance, the ruling violates the principle of noscitur a sociis, which says that the meaning of a tariff item "should be judged with reference to the tariff terms which surround it." As such, words grouped in a list should have a similar meaning. The trade court violated this principle by expanding subheading 0811.90.80 to include "mixtures" despite the fact that these goods are not provided for in the words surrounding that heading.
The decision also violates the eo nomine classification rules and the canon expressio unius est exclusio alterius, which means that "the expression of one thing implies the exclusion of all others. "There is no possible reading of the HTSUS which would permit classification of frozen fruit mixtures in any of the subheadings of Chapter 8, HTSUS, based on GRI 1," the brief said.