R.T. FOODS, INC., Plaintiff-Appellant,
UNITED STATES, Defendant-Appellee
Appeal from the United States Court of International Trade in No. 09-CV-0455, Judge Gregory W. Carman.
PETER S. HERRICK, Peter S. Herrick, P.A., of Miami, Florida, argued for plaintiff-appellant.
BEVERLY A. FARRELL, Trial Attorney, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice, of New York, New York, argued for defendant-appellee. With her on the brief were STUART F. DELERY, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and AMY M. RUBIN, Acting Assistant Director.
Before DYK, CLEVENGER, and WALLACH, Circuit Judges.
Wallach, Circuit Judge.
R.T. Foods, Inc. (" R.T." ) appeals the decision of the United States Court of International Trade (" CIT" ) denying its motion for summary judgment and granting the cross-motion for summary judgment of the United States (the " Government" ). See R.T. Foods, Inc. v. United States, 887 F.Supp.2d 1351 (Ct. Int'l Trade 2012). Because the CIT properly classified R.T.'s products, this court affirms.
Between October 2007 and August 2008, R.T. made twenty-four entries of " Tempura Vegetables" and " Vegetable Bird's Nests" from Thailand (" subject merchandise" ), ten through the port of Boston and fourteen through the port of Long Beach. " The parties do not dispute the identity of the subject merchandise: frozen tempura-battered vegetable mixtures sold under the names of 'Vegetable Bird's Nests' and 'Tempura Vegetables.'" Id. at 1353. The " Vegetable Bird's Nests" product consists of julienne-cut carrots, onion, and kale, which are " mixed together, dipped in tempura batter, deep fried, flash frozen," and packaged for retail. Id. The " Tempura Vegetables" medley consists of " three Bird's Nests, three pieces of sweet potato, three pieces of carrot, three pieces of wing bean, three pieces of long or green bean, and three pieces of eggplant" ; the individual vegetables are dusted with tempura batter, deep fried, flash frozen, and packaged for retail. Id.
United States Customs and Border Protection (" Customs" ) classified the ten Boston entries and three of the Long Beach entries under the Harmonized Tariff Schedule of the United States (" HTSUS" ) subheading 2004.90.85, which
carries a duty rate of 11.2%. The remaining eleven entries into the port of Long Beach were liquidated under R.T.'s proposed subheading, HTSUS 2106.90.99, which carries a duty-free preference for products from Thailand. According to Customs, the latter entries were accidentally entered duty-free under R.T.'s claimed subheading.
In March 2009, R.T. timely filed three protests challenging Customs' classification of all twenty-four entries. After the protests were denied, R.T. commenced this action at the CIT in October 2009. The parties filed motions for summary judgment. As an initial matter, the CIT held it only had jurisdiction over three of the twenty-four entries. On December 14, 2012, the CIT denied R.T.'s motion for summary judgment and granted the Government's cross-motion for summary judgment, thereby upholding Customs' classification of the subject merchandise under HTSUS 2004.90.85.
Appellant filed a timely appeal. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (2012).
I. Standard of Review
This court reviews the CIT's grant of summary judgment on tariff classifications de novo. Lemans Corp. v. United States, 660 F.3d 1311, 1315 (Fed. Cir. 2011); Cummins Inc. v. United States, 454 F.3d 1361, 1363 (Fed. Cir. 2006). In assessing Customs' classification determinations, this court employs the two-step analysis used by the CIT: (1) ascertaining " the proper meaning of the tariff provisions, which is a question of law reviewed de novo" ; and (2) determining " whether merchandise falls within a particular heading, which is a question of fact we review only for clear error." Lemans, 660 F.3d at 1315 (citing Cummins, 454 F.3d at 1363). However, " [w]here, as here, the nature of the merchandise is undisputed, the inquiry collapses into a question of law we review de novo." Id.; see R.T. Foods, 887 F.Supp.2d at 1359 (" Since there is no dispute between the parties as to the nature of the merchandise involved in this case and the only issues to be resolved are legal, the case ...