Nature's Touch Frozen Foods (West) Inc. v. United States

Slip. Op. No. 23-82

UNITED STATES COURT OF INTERNATIONAL TRADE

NATURE’S TOUCH FROZEN FOODS

(WEST) INC.,

Plaintiff, Before: Stephen Alexander Vaden,

Judge

v.

Court No. 1:20-cv-00131

UNITED STATES,

Defendant.

OPINION

Granting in-part and denying in-part Defendant’s Cross-Motion for Summary

Judgment and denying Plaintiff’s Motion for Summary Judgment.

Dated: May 26, 2023

John M. Peterson, Neville Peterson LLP, of New York, NY for Plaintiff. With him on

the brief were Richard F. O’Neill and Patrick B. Klein.

Jamie L. Shookman, Trial Attorney, Commercial Litigation Branch, Civil Division,

U.S. Department of Justice, of Washington, DC, for Defendant United States. With

her on the brief were Justin R. Miller, Attorney-in-Charge, International Trade Field

Office; Brian M. Boynton, Principal Deputy Assistant Attorney General; and Patricia

M. McCarthy, Director, Commercial Litigation Branch. Of counsel on the brief was

Fariha B. Kabir, Office of the Assistant Chief Counsel, International Trade

Litigation, U.S. Customs and Border Protection.

Vaden, Judge: Plaintiff Nature’s Touch Frozen Foods (West) Inc. (Plaintiff

or Nature’s Touch) brought this action contesting U.S. Customs and Border

Protection’s (Customs) tariff classification of the subject merchandise, which are

mixtures of frozen fruit, some of which contain frozen vegetable ingredients. In cross-

Court No. 1:20-cv-00131 Page 2

motions for summary judgment, Nature’s Touch argues that the merchandise should

be classified under Harmonized Tariff Schedule of the United States (HTSUS)

subheading 2106.90.98 as “[f]ood preparations not otherwise specified or included:

Other: Other; Other; Other; Other; Other,” while the United States (Defendant or the

Government) argues for classification under various eight-digit provisions within

HTSUS heading 0811 as “Fruit . . . frozen[.]” For the reasons stated below, Nature’s

Touch’s Motion for Summary Judgment is DENIED and the Government’s Cross-

Motion for Summary Judgment is GRANTED IN-PART.

BACKGROUND

I. Procedural Background

This case concerns various frozen fruit mixture products that Nature’s Touch

imported into the United States from Canada between June 6, 2018, and November

21, 2018. Summons at 3–4, ECF No. 1. At liquidation, Customs classified the subject

merchandise under heading 0811, HTSUS, which covers “Fruit and nuts, uncooked

or cooked by steaming or boiling in water, frozen, whether or not containing added

sugar or other sweetening matter.” 0811, HTSUS; Pl.’s Statement of Undisputed

Material Facts (Pl.’s Facts) ¶¶ 11–24, ECF No. 28. Depending on the ingredients of

the mixture, Customs classified the merchandise in liquidation under the following

HTSUS subheadings: 0811.90.10 (“Bananas and plantains”), 0811.90.20

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(“Blueberries”), 0811.90.52 (“Mangoes”), and 0811.90.80 (“Other”).1 Pl.’s Facts ¶¶ 11–

24, ECF No. 28; Def.’s Resp. to Pl.’s Statement of Undisputed Material Facts (Def.’s

Resp. Facts) ¶¶ 11–24, ECF No. 36. The relevant provisions and duty rates of HTSUS

Chapter 8, which covers “Edible Fruit and Nuts; Peel of Citrus Fruit or Melons,” read:

0811: Fruit and nuts, uncooked or cooked by steaming or boiling in

water, frozen, whether or not containing added sugar or other

sweetening matter:

0811.10: Strawberries: 11.2%

0811.20: Raspberries, blackberries, mulberries…4.5–9%

0811.90: Other:

0811.90.10: Bananas and plantains: 3.4%

0811.90.20: Blueberries: Free

0811.90.52: Mangoes: 10.9%

0811.90.80: Other: 14.5%

Nature’s Touch timely protested on October 30, 2019, claiming that the frozen

fruit mixtures should instead be classified under subheading 2106.90.98, HTSUS, as

“Food preparations not elsewhere specified or included: Other: Other; Other; Other;

Other; Other.” 2106.90.98, HTSUS; Summons at 1–2, ECF No. 1. The relevant

1 Although the Government in general argues in support of the HTSUS classifications used

by Customs at liquidation, the Government seeks classification under a higher-duty provision

than the one used at liquidation for two of Nature’s Touch’s products. See Def.’s Br. at 23,

28, ECF No. 36. These are Organic Triple Berry with Kale (liquidated in subheading

0811.90.52 at 10.9%, classification sought in 0811.90.80 at 14.5%) and a single entry of

Blueberry Blitz in Entry No. MK8-5346590 (liquidated in subheading 0811.90.20 duty free,

classification sought in 0811.90.80 at 14.5%). The Government notes that “due to the

procedural posture of this case,” it will not seek to amend its answer to claim any duties owed;

but rather it is “advancing the correct classification of [these products] in order to aid the

Court in fulfilling its statutory mandate to classify the merchandise at issue under the correct

provision of the tariff statute[.]” Id. at 23–24, n.7.

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provisions and duty rates of HTSUS Chapter 21, which covers “Miscellaneous Edible

Preparations,” read:

2106: Food preparations not elsewhere specified or included:

2106.90: Other:

Other:

Other:

Other:

Other:

2106.90.98: Other…6.4%

Nature’s Touch’s protest further claimed that the merchandise was eligible for duty-

free treatment under the North American Free Trade Agreement (NAFTA).

Summons at 2, ECF No. 1.

That protest was deemed denied on July 4, 2020, and Nature’s Touch filed a

summons and complaint challenging Customs’ classification on July 15, 2020. Id. at

1–2; Compl., ECF No. 5. Nature’s Touch later moved for summary judgment with an

accompanying brief. See Pl.’s Memo in Supp. of Its Mot. for Summ. J. (Pl.’s Br.), ECF

No. 28. The Government filed a cross-motion for summary judgment. Def.’s Memo

in Opp’n to Pl.’s Mot. for Summ. J. and in Supp. of Def.’s Cross-Mot. for Summ. J.

(Def.’s Br.), ECF No. 36. Thereafter, Nature’s Touch and the Government filed reply

briefs in support of their Motions. See Pl.’s Reply Br. in Supp. of Its Mot. for Summ.

J. (Pl.’s Reply), ECF No. 30; Def.’s Reply Memo in Furth. Supp. of Def.’s Cross-Mot.

for Summ. J. (Def.’s Reply), ECF No. 31.

The classification at issue was not the first time Customs had classified

Nature’s Touch’s mixture products. In a prior ruling, HQ H307154, dated February

Court No. 1:20-cv-00131 Page 5

7, 2020, Customs classified two such products, one consisting of 25% strawberry, 25%

blueberry, 25% blackberry, and 25% raspberry and the other of 34% mango, 33%

raspberry, and 33% cherry. See HQ H307154 at 4; see also Def.’s Br. at 24, ECF No.

36. There, Customs determined that both mixtures were described by HTSUS

0811.90.80, as “Fruit . . . frozen: Other: Other” applying HTSUS General Rule of

Interpretation 1, which requires that “classification shall be determined according to

the terms of the headings[.]” See HQ H307154 at 4; GRI 1, HTSUS.

However, for the merchandise at issue here, Customs changed its position.

Rather than classify all of the merchandise as “Fruit . . . frozen: Other: Other,”

Customs employed an alternative methodology and classified the mixtures into

different subheadings depending on the ingredients in each mixture. See Def.’s Br.

at 1–2, ECF No. 36; see also Def.’s Resp. Facts ¶¶ 11–24, ECF No. 36. In defending

Customs’ classification, the Government explained that none of heading 0811’s

subheadings described mixture products, including subheading 0811.90.80, HTSUS

(“Fruit . . . frozen: Other: Other”). See Def.’s Br. at 18, 26, ECF No. 36. The

Government instead argues that each mixture should be classified by considering the

subheadings that cover the mixture’s specific fruit ingredients and choosing the

subheading that comes last in numerical order, applying HTSUS General Rule of

Interpretation 3(c).2 See id. at 20–21, 27. The Government disavowed its prior

2That methodology still classified certain products into HTSUS 0811.90.80 (“Fruit . . . frozen:

Other: Other”) because, if a mixture contained an ingredient not enumerated by a

Court No. 1:20-cv-00131 Page 6

classification methodology and wrote that HQ H307154 “employed an incorrect

reasoning” when it determined that frozen fruit mixtures could be classified under

HTSUS 0811.90.80 as “Fruit . . . frozen: Other: Other.” Def.’s Br. at 24, ECF No. 36.

Nature’s Touch rejected both of these methodologies and instead argues that all the

mixtures are described by the terms of 2106.90.98, HTSUS, covering “Food

preparations not elsewhere specified or included: Other: Other: Other: Other: Other:

Other.” Pl.’s Br. at 2–3, ECF No. 28.

On February 16, 2023, the Court held a status conference and issued an Order

requiring the parties to submit supplemental briefing. See Order, ECF No. 42. The

Supplemental Briefing Order asked the parties to address whether all of the

merchandise at issue could be classified under 0811.90.80, HTSUS (“Fruit . . . frozen:

Other: Other”). The parties filed supplemental briefs in support of their positions,

and both Nature’s Touch and the Government continue to argue that subheading

0811.90.80, HTSUS, does not describe the mixtures. See Def.’s Supplemental Brief,

ECF No. 44; Pl.’s Supplemental Brief, ECF No. 46.

II. Description of Subject Merchandise

The following facts are taken from the parties’ Statements of Undisputed

Material Facts or are otherwise on the record and undisputed. The subject

merchandise consists of fourteen frozen fruit mixture products, five of which also

subheading, such as “peaches,” then “Other” became the ingredient subheading that came

last in numerical order. See Def.’s Br. at 21, ECF No. 36.

Court No. 1:20-cv-00131 Page 7

contain frozen vegetable ingredients. Pl.’s Facts ¶¶ 10–24, ECF No. 28; Def.’s Resp.

Facts ¶¶ 10–24, ECF No. 36. Nature’s Touch produces the mixtures by importing

fruits and vegetables from around the world to its Abbotsford, Canada facility, where

they are cleaned, combined, and packaged for export to the United States. Pl.’s Facts

¶¶ 4–6, ECF No. 28; Def.’s Resp. Facts ¶¶ 4–6, ECF No. 36. With the exception of

certain blueberries, all of the fruit and vegetables in the subject mixtures arrive at

Nature’s Touch’s facility already cut and frozen. Defendant’s Statement of Additional

Undisputed Material Facts ¶ 6, ECF No. 36; Plaintiff’s Response to Defendant’s 56.3

Statement (Pl.’s Resp. to Def.’s 56.3 Statement) ¶ 6, ECF No. 30. Consumers use the

mixtures for a variety of purposes, such as to make smoothies, sauces, chutneys,

punches, dips, baked goods, and fruit salads; or they may thaw and eat the mixtures

directly. Pl.’s Facts ¶¶ 34, 45, ECF No. 28; Def.’s Resp. Facts ¶¶ 34, 45, ECF No. 36.

However, “[n]ew applications for the products at issue may be developed based on

customer usage,” and Nature’s Touch “does not know how a customer will ultimately

use the products at issue.” Pl.’s Resp. to Def.’s 56.3 Statement, ¶¶ 12–13, ECF No.

30.

The mixtures contain no ingredients other than frozen fruit and vegetables,

and the specific combinations of fruit and vegetables within each product are as

follows:3

3See Defendant’s Statement of Additional Undisputed Material Facts ¶¶ 3–5, ECF No. 36;

Pl.’s Resp. to Def.’s 56.3 Statement ¶¶ 3–5, ECF No. 30. Plaintiff’s Response accepts

Court No. 1:20-cv-00131 Page 8

All-Fruit Mixtures:

(1) Frozen Strawberry/Banana: 52% strawberry, 48% banana

(2) Frozen Berry Mix: 22% blueberry, 32% strawberry, 28% blackberry,

18% raspberry

(3) Frozen Triple Berry: 34% blueberry, 33% blackberry, 33% raspberry

(4) Organic Mixed Berry: 35% strawberry, 25% blackberry, 25% blueberry,

15% raspberry

(5) Organic Very Berry Burst: 30% strawberry, 30% blackberry, 30%

blueberry, 10% raspberry

(6) Organic Strawberry/Blueberry/Mango: 34% strawberry, 33% blueberry,

33% mango

(7) Organic Tropical Blend: 34% strawberry, 33% mango, 33% pineapple

(8) Antioxidant Blend Frozen: 30% strawberry, 20% cherry, 20%

pomegranate, 15% blueberry, 15% raspberry

(9) Frozen Medley Mixed Fruit: 35% strawberry, 25% peach, 15%

pineapple, 15% mango, 10% grapes

Fruit-and-Vegetable Mixtures:

(10) Organic Green Mango Medley: 18% strawberry, 25% banana, 35%

mango, 22% kale

(11) Organic Tropical Fruit and Greens: 46% pineapple, 37% mango, 8.5%

spinach, 8.5% kale

(12) Organic Strawberry/Cherry/Kale: 34% strawberry, 33% cherry, 33%

kale

(13) Organic Triple Berry with Kale: 27% blueberry, 20% blackberry, 23%

apple, 15% raspberry, 15% kale

Defendant’s statement of ingredient proportions for each product and notes that “proportions

of products in mixtures are subject to occasional variations.” Id. ¶¶ 3-4.

Court No. 1:20-cv-00131 Page 9

(14) Blueberry Blitz: 40% blueberry, 20% blackberry, 25% apple, 15%

butternut squash

JURISDICTION AND STANDARD OF REVIEW

The parties have not disputed Nature’s Touch’s fulfillment of the prerequisites

for initiating this action. See 28 U.S.C. § 2637(a). Because Nature’s Touch contests

Customs’ denial of its protests against the tariff classification of its merchandise,

jurisdiction is proper pursuant to 28 U.S.C. § 1581(a) (“The Court of International

Trade shall have exclusive jurisdiction of any civil action commenced to contest the

denial of a protest, in whole or in part …”). The Court reviews Customs’ denial of

Nature’s Touch’s protest de novo. See Rheem Metalurgica S/A v. United States, 951

F. Supp. 241, 246 (CIT 1996), aff’d, 160 F.3d 1357 (Fed. Cir. 1998). Although

Customs’ decision is presumed correct and “[t]he burden of proving otherwise shall

rest upon the party challenging such decision,” the Court’s “duty is to find the correct

result.” 28 U.S.C. § 2639(a)(1); Jarvis Clark Co. v. United States, 733 F.2d 873, 878

(Fed. Cir. 1984) (Wisdom, J.).

Rule 56 of the United States Court of International Trade provides that

summary judgment may be granted “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.” USCIT Rule 56(c); see also Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986) (interpreting the analogous provision of the Federal Rules

Court No. 1:20-cv-00131 Page 10

of Civil Procedure). In a tariff classification dispute, summary judgment is

appropriate where “there is no genuine dispute as to the nature of the merchandise

and the classification turns on the proper meaning and scope of the relevant tariff

provisions.” Deckers Outdoor Corp. v. United States, 714 F.3d 1363, 1371 (Fed. Cir.

2013) (citing Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1366 (Fed. Cir.

1998)). In ascertaining whether a genuine, material issue of fact exists, a Court

reviews evidence submitted, in this case from the Statements of Undisputed Material

Facts, drawing all inferences against the moving party. See Matsushita Elecs. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The movant bears the burden of

demonstrating that there exists no genuine issue of material fact that would warrant

a trial. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). At summary

judgment, “the judge’s function is not himself to weigh the evidence and determine

the truth of the matter but to determine whether there is a genuine issue for trial.”

Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986); see also Ford Motor Co. v. United

States, 157 F.3d 849, 854 (Fed. Cir. 1998).

DISCUSSION

I. Legal Framework for Tariff Classification Under the HTSUS

The HTSUS is organized into headings, each of which contains one or more

subheadings. The headings describe general categories of merchandise, and the

subheadings “provide a more particularized segregation of goods within each

category.” Orlando Food Corp. v. United States, 140 F.3d 1437, 1439 (Fed. Cir. 1998).

Court No. 1:20-cv-00131 Page 11

The Court follows a strict order of operations when deciding HTSUS classification

cases, which is set out in the General Rules of Interpretation (GRIs) of the HTSUS.

The first task is to classify the merchandise into the correct HTSUS heading by

construing the language of the headings. Id. at 1440. This is done by applying GRI

1, which provides that “classification shall be determined according to the terms of

the headings and any relative section or chapter notes.” GRI 1, HTSUS. A product

is classifiable under GRI 1 if it “is described in whole by a single classification

heading” of the HTSUS. La Crosse Tech., Ltd. v. United States, 723 F.3d 1353, 1358

(Fed. Cir. 2013) (quoting CamelBak Prods., LLC v. United States, 649 F.3d 1361, 1364

(Fed. Cir. 2011)). If no heading describes the product in whole, the Court may proceed

to GRIs 2 through 5, in order, only proceeding to the next GRI if the previous GRI

cannot classify the product. See Mita Copystar Am. v. United States, 160 F.3d 710,

712 (Fed. Cir. 1998); Wilton Indus. v. United States, 741 F.3d 1263, 1266 (Fed. Cir.

2013). “[I]f the proper heading can be determined under GRI 1, the court is not to

look to the subsequent GRIs.” R.T. Foods, Inc. v. United States, 757 F.3d 1349, 1353

(Fed. Cir. 2014).

GRI 2 provides that the classification of “goods consisting of more than one

material or substance” shall be according to the principles of GRI 3. GRI 2, HTSUS.

Under GRI 3(a), goods are classified into “[t]he heading which provides the most

specific description”; but if multiple headings “each refer to part only of the materials

or substances contained in [a mixed good],” they are regarded as equally specific and

Court No. 1:20-cv-00131 Page 12

the Court moves to GRI 3(b) by classifying the good according to the material that

gives the good its “essential character.” GRI 3, HTSUS. If no essential character can

be found, then the good is classified pursuant to GRI 3(c), “under the heading which

occurs last in numerical order among those which equally merit consideration.” Id.

After using the GRIs to determine the correct heading, the Court determines the

correct HTSUS subheading using GRI 6, which directs that GRIs 1 through 5 be re-

applied at the subheading level. GRI 6, HTSUS. “Only after determining that a

product is classifiable under the heading should the court look to the subheadings to

find the correct classification for the merchandise.” Orlando Food, 140 F.3d at 1440.

“Absent contrary legislative intent, HTSUS terms are to be construed

according to their common and commercial meanings, which are presumed to be the

same.” Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999). The

common meaning of a tariff term is a question of law to be decided by the Court. E.M.

Chems. v. United States, 920 F.2d 910, 912 (Fed. Cir. 1990) (citing Stewart-Warner

Corp. v. United States, 748 F.2d 663, 664–65 (Fed. Cir. 1984)). When a tariff term is

not clearly defined, the Court “may consult lexicographic and scientific authorities,

dictionaries, and other reliable information” or may rely on its “own understanding

of the terms used.” Baxter Healthcare Corp. v. United States, 182 F.3d 1333, 1337–

38 (Fed. Cir. 1999). The Court may also consult the Explanatory Notes for the

Harmonized Commodity Description and Coding System, which are maintained by

the World Customs Organization. Although not legally binding, the Explanatory

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Notes “are generally indicative of the proper interpretation of a tariff provision.”

Degussa Corp. v. United States, 508 F.3d 1044, 1047 (Fed. Cir. 2007) (citing Motorola

Inc. v. United States, 436 F.3d 1357, 1361 (Fed. Cir. 2006)).

II. Classification of the Subject Merchandise

A. Summary

The nine all-fruit mixtures are properly classified into heading 0811, HTSUS

pursuant to GRI 1 because the term “Fruit . . . frozen” describes these products in

whole. The common meaning of “fruit” includes mixed fruit — as in the phrase “a

bowl of fruit” — so that it is unnecessary for the heading to enumerate fruit mixtures

in order to cover them. Nature’s Touch’s arguments to the contrary are improper

because they require inferring from the lack of a subheading enumerating mixtures

within 0811 that the heading does not cover mixtures, in violation of binding

precedent that subheadings may not be considered until after the proper heading is

chosen.

However, the term “Fruit . . . frozen” does not describe the five mixtures that

contain vegetable ingredients because these products contain features substantially

in excess of those within the common meaning of the term. This requires the Court

to consider whether Nature’s Touch’s preferred heading, 2106, HTSUS (“Food

preparations not otherwise specified or included”) describes the fruit-and-vegetable

mixtures pursuant to GRI 1. The Court concludes that it does not. It first finds that

food preparations must undergo processing additional to what is already inherent to

Court No. 1:20-cv-00131 Page 14

the term “food” to avoid rendering “preparations” mere surplusage. The Court then

considers whether cutting, freezing, and combining fruits and vegetables is sufficient

to turn these ingredients into food preparations. It holds that these steps are

insufficient because the Explanatory Note to heading 2106, HTSUS operates to

exclude mixtures of cut fruits and vegetables from the heading if they are consumed

as such and because both case law and the structure of the HTSUS distinguish

between freezing and preparation. Having eliminated the candidate GRI 1 headings,

the Court instead classifies the fruit-and-vegetable mixtures into heading 0811 under

GRI 3(b) because it finds that the fruit content predominates and supplies the

essential character of these mixtures.

Finally, all of the subject mixtures are properly classified into the basket

subheading 0811.90.80, “Other,” pursuant to GRI 1. The Court rejects the arguments

of both parties that the subheading excludes mixtures because it does not explicitly

enumerate them and instead finds that the plain meaning of “Other” describes

products, including the subject merchandise, that cannot be described in whole by the

terms of the other subheadings within the proper heading. In seeking to require that

basket subheadings specifically enumerate mixtures in order to include them, the

Government adopts an interpretive method at odds with both the plain meaning of

“Other” and with its own position that such enumeration is unnecessary for heading

0811 to cover mixtures. The Court declines the parties’ invitation to read exclusions

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into tariff provisions that are absent from their text or to apply different

interpretative rules when construing subheadings rather than headings.

B. Application of the GRIs to Determine the Correct Heading

The threshold issue in this case is whether the merchandise is properly

classified in HTSUS heading 0811 as “Fruit . . . frozen,” because Nature’s Touch’s

proposed alternative classification, HTSUS heading 2106, is a basket provision that

applies to “Food preparations not elsewhere specified or included.” 2106, HTSUS

(emphasis added). Classification of imported merchandise in a basket provision, like

2106, “is only appropriate if there is no tariff category that covers the merchandise

more specifically.” R.T. Foods, 757 F.3d at 1354 (quoting Rollerblade, Inc. v. United

States, 116 F. Supp. 2d 1247, 1251 (CIT 2000), aff’d, 282 F.3d 1349 (Fed. Cir. 2002)).

Therefore, the Court first will apply GRI 1 to determine whether the merchandise

can be classified as “Fruit . . . frozen” under heading 0811. The Court considers the

nine all-fruit mixtures separately from the five fruit-and-vegetable mixtures.

1. The All-Fruit Mixtures

Under GRI 1, the Court first asks whether the nine all-fruit mixtures are

“described in whole” by the terms of heading 0811 — that is, whether they are “Fruit

. . . frozen[.]” CamelBak Prods., 649 F.3d at 1364; see 0811, HTSUS. Nature’s Touch

claims that they are not because the term “fruit,” as used in the heading, should be

read to refer only to individual types of fruit and to exclude mixed fruits. See Pl.’s Br.

at 12, ECF No. 28. Nature’s Touch concedes that heading 0811, taken by itself, could

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potentially classify the mixtures. Oral Arg. Tr. 17:18–19, ECF No. 39 (Peterson: “I

mean, we concede that 0811 is potentially applicable to our product.”). However,

Nature’s Touch claims that the heading should be construed in light of its

subheadings, which do not specifically provide for mixtures and list only individual

types of fruit, such as “Blueberries” or “Mangoes.” See Pl.’s Br. at 11–12, ECF No. 28;

see also Oral Arg. Tr. 7:4–8, ECF No. 39 (Peterson: “[I]f you look at heading 0811, you

will see that they provide for fruits. And they provide in various eight-digit

subheadings for individually named fruit. At no point does that provision contain a

mixtures provision.”). Nature’s Touch contrasts this with other HTSUS headings and

subheadings that expressly cover “mixtures” and infers that the omission of the term

“mixtures” from heading 0811 and its subheadings must be read as intentional. See

Pl.’s Br. at 13–14, ECF No. 28. For example, Nature’s Touch cites several

subheadings in Chapter 7 HTSUS that specifically provide for vegetable mixtures.

See Id. at 13 (noting, among others, subheading 0710.90 providing for “[m]ixtures of

vegetables.”). Nature’s Touch therefore concludes that, “[w]here the HTSUS intends

to include mixtures of frozen food in tariff classifications, the plain language of the

headings clearly provides for mixtures” and that “frozen fruit mixtures do not meet

the plain language requirements for classification in Heading 0811, HTSUS.” Id. at

12-13.

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The Government, however, argues that heading 0811 is an eo nomine provision

— that is, one that “describes the merchandise by name, not by use.”4 Carl Zeiss, 195

F.3d at 1379. Under well-established case law, eo nomine provisions are interpreted

to “include[] all forms of the named article, even improved forms,” and as long as the

product does not “possess features substantially in excess of those within the common

meaning of the term,” it will be covered by the provision that names it. CamelBak

Prods., 649 F.3d at 1364–65 (citing Casio, Inc. v. United States, 73 F.3d 1095, 1098

(Fed. Cir. 1996)) (internal quotation marks omitted). The Government notes that the

common meaning of the term “fruit” includes mixtures of different fruits, as in the

phrase “a bowl of fruit.” Def.’s Br. at 13, ECF No. 36. The Government therefore

concludes that the term “Fruit . . . frozen” describes the all-fruit mixtures in whole.

The Government is correct. Heading 0811 is an eo nomine provision that

describes frozen fruit by name and includes mixtures of frozen fruit. Although the

term “fruit” is not discussed in either the HTSUS chapter notes or the Explanatory

Notes, the common meaning of the term “fruit” embraces mixed fruits and does not

imply a limitation to individual types of fruit. That fact should be plain to anyone

4 Nature’s Touch’s briefs do not dispute that heading 0811 is an eo nomine provision. See,

e.g., Pl.’s Resp. at 8, ECF No. 30 (arguing that “[a]n eo nomine tariff classification does not

embrace mixtures.”). At oral argument, Nature’s Touch abandoned this posture and

attempted to argue that the term “fruit” in heading 0811 was not an eo nomine term but

rather a “general description term.” Oral Arg. Tr. 14:14–15, ECF No. 39. Because Nature’s

Touch failed to raise this issue in its briefs, the argument is forfeited. See McIntosh v.

Department of Defense, 53 F.4th 630, 641 (Fed. Cir. 2022). Were it not forfeited, the Court,

as stated above, confirms the provision is an eo nomine term.

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who has kept a “bowl of fruit” in their kitchen, ordered a “fruit plate” in a restaurant,

or navigated to the “frozen fruit” aisle in a grocery store and selected one of Nature’s

Touch’s mixtures. Dictionary definitions of “fruit” confirm that the term has a plural

meaning that denotes, roughly, “fruits in general.” See, e.g., Fruit, Oxford English

Dictionary (2d ed. 1989) (“Vegetable products in general, that are fit to be used as

food by men and animals.”); Fruit, CollinsDictionary.com,

https://www.collinsdictionary.com/us/dictionary/english/fruit (last visited May 8,

2023) (noting that “[t]he plural form is usually fruit, but can also be fruits”); Fruit,

American Heritage Dictionary (3d ed. 1996) (plural “fruit or fruits”); Fruit, Webster’s

New International Dictionary (2d ed. 1956) (“Collectively, a dish, a selection, a diet,

of fruits”). The Court concludes that the common meaning of the term “fruit,” as used

in heading 0811, refers generally to fruit of all kinds and is not limited to individual

fruit. It therefore includes mixed fruit.

Nature’s Touch’s method of construing the language of the heading in light of

its subheadings impermissibly scrambles the order of operations for tariff

classification. The Court must determine the correct heading “without reference to

[its] subheadings . . . . ” R.T. Foods, 757 F.3d at 1353; see also Orlando Food, 140

F.3d at 1440 (“Only after determining that a product is classifiable under the heading

should the court look to the subheadings to find the correct classification for the

merchandise.”). Once the correct heading has been determined, the Court continues

its analysis by choosing a subheading contained within that heading. It may not hop

Court No. 1:20-cv-00131 Page 19

out of the heading and restart the process because it believes the available

subheadings are inadequate, as Nature’s Touch suggests. See Oral Arg. Tr. 22:22–

23:2, ECF No. 39 (Peterson: “Now, let’s say we’ve gone through 0811. There is no

provision in there prescribing a rate of duty for mixtures of frozen fruit . . . you are

commanded by [GRI 1] to see if there is any other way, any other provision that

classifies these goods at the GRI 1 level.”). Rather, “[o]nce the Court chooses the

proper heading, the Court is limited to choosing a subheading only from within the

proper heading, i.e., the subheadings appearing under other headings become

irrelevant for the classification of the merchandise at issue.” Witex, U.S.A., Inc. v.

United States, 353 F. Supp. 2d 1310, 1315-16 (CIT 2004).

Nature’s Touch argues that, unless the plain language of the heading

specifically provides for mixtures, the heading cannot cover them. Pl.’s Br. at 13, ECF

No. 28. This interpretive method requires ignoring binding precedent that headings

must be chosen without any reference to subheadings. To take Nature’s Touch’s own

example, subheading 0710.90, providing for frozen mixed vegetables, is contained

within heading 0710, which itself makes no mention of mixtures and provides only

for “Vegetables . . . frozen.” 0710, HTSUS. They are organized in the HTSUS as:

0710: Vegetables (uncooked or cooked by steaming or boiling in water),

frozen:

0710.90: Mixtures of vegetables

Because the subheading cannot inform the interpretation of the heading, a frozen

mixed vegetable product could only be properly classified in heading 0710 if it is

Court No. 1:20-cv-00131 Page 20

interpreted to include mixtures despite its text not expressly providing for them.

Nature’s Touch is therefore incorrect when it states that “[w]here the HTSUS intends

to include mixtures of frozen food in tariff classifications, the plain language of the

headings clearly provides for mixtures.” Pl.’s Br. at 13, ECF No. 28. Rather, as the

Government correctly argues, “a broad eo nomine term can cover mixtures, even if

not explicitly stated in the text.” Def.’s Br. at 16, ECF No. 36.

Nature’s Touch contends that an eo nomine provision cannot be expanded “to

include something mixed or joined with the named article, which is not that named

article,” noting that an eo nomine provision for strawberries will include all forms of

strawberries but not a mixture of strawberries and blueberries. Pl.’s Reply at 8, 9,

ECF No. 30. This argument is unavailing where all of the articles are themselves

frozen fruit. A mixture of frozen strawberries and frozen blueberries does not

“possess features substantially in excess of those within the common meaning” of the

terms of heading 0811 — it is frozen fruit. Casio, 73 F.3d at 1098 (quoting United

Carr Fastener Corp. v. United States, 54 CCPA 89, 91 (1967)) (internal quotation

marks omitted). Because the nine all-fruit frozen mixture products are described in

whole by the term “Fruit . . . frozen,” they are classified in heading 0811 by operation

of GRI 1.

Court No. 1:20-cv-00131 Page 21

2. The Fruit-and-Vegetable Mixtures

(a) Application of GRI 1

The Court next must determine whether the remaining five mixture products,

which contain both fruit and vegetable ingredients, are described in whole by the

term “Fruit . . . frozen[.]” Pl.’s Facts ¶¶ 11–24, ECF No. 28; Def.’s Resp. Facts ¶¶ 11–

24, ECF No. 36. The Court finds that they are not; therefore, GRI 1 cannot classify

them into heading 0811. The Court is mindful that a product may contain materials

that are not named by an eo nomine provision and still be classified into that provision

under GRI 1 as long as those materials do not trigger a “change in identity” of the

product. CamelBak Prods., 649 F.3d at 1365. To determine whether a change in

identity has occurred, the Court asks whether the product contains features

substantially in excess of those within the common meaning of the term “Fruit . . .

frozen.” See Casio, 73 F.3d at 1098. The Court may look to a variety of factors,

including commercial factors such as the marketing of the product in question. See

CamelBak Prods., 649 F.3d at 1369 (finding that the products contained features

substantially in excess of “backpacks,” in part, because they “are commercially

known, advertised and sold as ‘hydration packs.’”).

Here, the Court finds that the fruit-and-vegetable mixtures contain features

substantially in excess of frozen fruit. In addition to comprising between 15% and

33% of the mixtures’ total content by weight, the vegetable content of these mixtures

forms a significant part of the products’ commercial identity. Nature’s Touch

Court No. 1:20-cv-00131 Page 22

references the vegetable ingredients in the names of four of the five products and

prominently features vegetables on the packaging of at least four of those products.

Pl.’s Facts ¶¶ 14, 16, 19, 21, ECF No. 28; Def.’s Resp. Facts ¶¶ 14, 16, 19, 21, ECF

No. 36 (referencing product names “Organic Green Mango Medley,” “Organic Tropical

Fruit and Greens,” “Organic Strawberry/Cherry/Kale,” and “Organic Triple Berry

with Kale”);5 Pl.’s Br. at Ex. D, ECF No. 28 (depicting the retail packaging for all

products except “Organic Tropical Fruit and Greens”).6 The vegetable ingredients

are therefore substantially in excess of frozen fruit, and the mixtures are not

classifiable through GRI 1 into an eo nomine provision for “Fruit . . . frozen[.]”

At this point, the Government argues that the fruit-and-vegetable mixtures

should be classified as “Fruit . . . frozen” using a GRI 3(b) essential character analysis.

See Def.’s Br. at 25–26, ECF No. 36. But GRI 3 may only be reached if the terms of

all available headings do not describe the product, eliminating all GRI 1 possibilities.

See Mita Copystar, 160 F.3d at 712 (“As GRI 1 expressly provides, the other GRI

provisions may be consulted only if the headings and notes ‘do not otherwise require’

5 Plaintiff and Defendant both reference a “Blueberry Blitz” product containing 15%

butternut squash, a vegetable ingredient. Pl.’s Facts ¶ 15, ECF No. 28; Def.’s Resp. Facts ¶

15, ECF No. 36. Although the vegetable content is not referenced in the name of the product,

the Court nonetheless finds that this content is prominently displayed in the product’s

marketing and is significant enough to render the ingredients substantially in excess of fruit.

See Pl.’s Br. at Ex. D, ECF No. 28 (demonstrating that butternut squash is featured on the

product’s packaging).

6 At oral argument, the parties stipulated that Exhibit D was an accurate reflection of the

products’ retail packaging. Oral Arg. Tr. 5:16–6:2, ECF No. 39; see also Def.’s Resp. Facts ¶

7, ECF No. 36 (accepting same).

Court No. 1:20-cv-00131 Page 23

a particular classification.”) (quoting GRI 1, HTSUS). The Court must therefore ask

whether these mixtures are described by the terms of heading 2106, “Food

preparations not otherwise specified or included.” 2106, HTSUS. The Court holds

that they are not.

Because it is undisputed that the mixtures at issue are “food,” the Court’s

inquiry turns on the meaning of “preparations” as used in heading 2106. “The term

‘preparation’ is not defined in the HTSUS or the General Rules of Interpretation.”

BASF Corp. v. United States, 29 C.I.T. 681, 691 (2005). The Federal Circuit has found

that “[i]nherent in the term ‘preparation’ is the notion that the object involved is

destined for a specific use.” Orlando Food, 140 F.3d at 1441 (citing the Oxford

English Dictionary (2d ed. 1989) definition of “preparation” as “a substance specially

prepared, or made up for its appropriate use or application, e.g. as food or medicine,

or in the arts or sciences.”). However, for the purposes of the HTSUS, use as food is

not, by itself, sufficient to turn a product into a “food preparation.” “Products are not

classifiable under heading 2106, HTSUS, merely because they are specifically made

for use in food.” Mondelez Global LLC v. United States, 253 F. Supp. 3d 1329, 1332

(CIT 2017) (finding that an article must be both “food” and a “preparation”). For a

product to qualify as a “food preparation,” it must undergo processing additional to

what is already inherent in the term “food,” otherwise the term “preparation” would

become mere surplusage. “It is our duty ‘to give effect, if possible, to every clause and

word of a statute[.]’” United States v. Menasche, 348 U.S. 528, 538–39 (1955) (quoting

Court No. 1:20-cv-00131 Page 24

Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)). Nature’s Touch is therefore

incorrect when it argues that the mixtures are food preparations because they are

“specially prepared for multiple appropriate uses and applications as food.” Pl.’s Br.

at 18, ECF No. 28. Nature’s Touch is also incorrect when it attempts to read

“preparation” out of the heading entirely by arguing that “[t]here is no required,

minimum or mandated type of ‘preparation’ required for a product to be classified

under heading 2106, HTSUS.” Pl.’s Reply at 14–15, ECF No. 30. The Court declines

to read “food preparation” as “food.”

Nature’s Touch emphasizes the many processing operations it performs on the

mixtures, describing such activities as recipe design, cleaning, sorting, inspection,

packaging, and readying for importation and sale as “preparation.” Pl.’s Br. at 5, 19–

21, ECF No. 28. Yet recipe design is product development, not a step to prepare or

process food. See Def.’s Br. at 36–37, ECF No. 36. The other operations are common

to all commercial food products, which must necessarily be cleaned, sorted, inspected,

packed, and readied for sale. See id. at 34. Because the Court is compelled to read

“preparation” as requiring more than what is already inherent to “food,” these steps

are insufficient to turn Nature’s Touch’s mixtures into food preparations. Rather,

fruit and vegetable ingredients undergo three processing steps that turn them into

Nature’s Touch’s unique products: cutting,7 freezing, and combining. See Pl.’s Br. at

7 Nature’s Touch refers to ingredients being “reduced in size” and offers the example of

“chopped pineapples or melons.” Pl.’s Br. at 4, ECF No. 28; see also Pl.’s Resp. to Def.’s 56.3

Court No. 1:20-cv-00131 Page 25

4–5, ECF No. 28; Def.’s Resp. Facts ¶ 5–6, ECF No. 36; see also Pl.’s Resp. to Def.’s

56.3 Statement ¶ 5–8, ECF No. 30 (recounting processing steps and agreeing that

“[o]nce frozen, the individual pieces of fruit in the products undergo no further change

in character prior to the products’ retail sale.”). The Court therefore considers

whether these operations are sufficient to create a “food preparation” within the

meaning of HTSUS heading 2106.

The Government argues that they are not, pointing out that the Explanatory

Note to heading 2106 lists exemplar products that “require significant processing

beyond simply mixing fresh food ingredients.” Def.’s Br. at 30, ECF No. 36. Although

the Explanatory Note does not expressly define “preparation,” it does list exemplars

of “food preparations” that fall within the heading.8 See Explanatory Note 21.06 –

Food preparations not elsewhere specified or included. The qualities shared by such

exemplar products may be used by courts to derive the meaning of the HTSUS

heading. See, e.g., Schlumberger Tech. Corp. v. United States, 845 F.3d 1158, 1165-

Statement ¶ 6, ECF No. 30 (agreeing that “all of the fruit and vegetables in the products at

issue arrive at plaintiff’s packaging facility already cut and frozen.”).

8 Explanatory Note 21.06 sets forth two categories of food preparations covered by heading

2106, but neither supplies a definition of the term “preparation.” They are:

(A) Preparations for use, either directly or after processing (such as cooking, dissolving

or boiling in water, milk, etc.), for human consumption.

(B) Preparations consisting wholly or partly of foodstuffs, used in the making of

beverages or food preparations for human consumption. The heading includes

preparations consisting of mixtures of chemicals (organic acids, calcium salts, etc.)

with foodstuffs (flour, sugar, milk powder, etc.), for incorporation in food

preparations either as ingredients or to improve some of their characteristics

(appearance, keeping qualities, etc.)

Court No. 1:20-cv-00131 Page 26

66 (Fed. Cir. 2017) (finding that the products listed by the Explanatory Note for a

heading covering “ceramic wares” all had “definite forms” and because the granulated

bauxite in question “does not have a definite form, it cannot fall within that Heading’s

terms.”). The Government is correct that most of these exemplar products require

significant processing, such as “Flavouring powders for making beverages,” “Protein

hydrolysates consisting mainly of a mixture of amino-acids and sodium chloride,” and

“Edible tablets with a basis of natural or artificial perfumes.” Explanatory Note 21.06

(2), (6), (8). However, certain exemplar products do not indicate on their face whether

or not they require significant processing. See, e.g., Explanatory Note 21.06 (5)

(listing “Natural honey enriched with bees’ royal jelly”). The Court therefore will not

attempt a nebulous inquiry into the intensity or significance of the processing a

product must undergo to become a food preparation but rather will look to the way

the processing steps specific to Nature’s Touch’s products — cutting, freezing, and

combining fruits and vegetables — are treated in the HTSUS, the Explanatory Notes,

and case law.

The Explanatory Note to heading 2106 excludes mixtures of cut fruits and

vegetables from heading 2106 if they are fit for consumption “as such.” Explanatory

Note 21.06 (15) describes an exemplar food preparation consisting of:

Mixtures of plants, parts of plants, seeds or fruit (whole,

cut, crushed, ground or powdered) of species falling in

different Chapters (e.g. Chapters 7, 9, 11, 12) or of different

species falling in heading 12.11, not consumed as such, but

Court No. 1:20-cv-00131 Page 27

of a kind used either directly for flavouring beverages or for

preparing extracts for the manufacture of beverages.

Explanatory Note 21.06 (15) (emphasis added). The Explanatory Note’s exclusion of

plant or fruit mixtures that can be consumed independently reflects a specific intent

to remove products similar to the mixtures at issue from heading 2106. See Pl.’s Resp.

to Def.’s 56.3 Statement ¶ 11, ECF No. 30 (agreeing that consumers “eat [the

mixtures] directly”). The Court therefore concludes that cutting and combining fruits

and vegetables is insufficient to turn these ingredients into a “food preparation.” If

it were, the drafters of the Explanatory Notes would not have bothered to insert

language prohibiting the application of heading 2106 to such mixtures.

The Court is left to determine whether freezing an otherwise excluded mixture

of cut fruits and vegetables turns it into a “food preparation.” The Court is

unpersuaded. Case law and the HTSUS distinguish between “prepared” foods and

“frozen” foods. In Frosted Fruit Products Co. v. United States, 18 Cust. Ct. 119 (1947),

the Customs Court held that frozen guavas that had been trimmed, cleaned, and

packed in boxes “are not ‘prepared,’ in a tariff sense” and declined to classify them as

“guavas prepared or preserved.” Id. at 121. That holding has been repeatedly

extended. See Interocean Chem. & Minerals Corp. v. United States, 13 C.I.T. 449, 453

(1989) (“[I]t has been held that freezing, being a temporary preservation[,] is neither

a preparation nor a preservation for tariff purposes.”); see also Crawfish Processors

Alliance v. United States, 30 C.I.T. 639, 645 (2006) (noting that “Frosted Fruit made

Court No. 1:20-cv-00131 Page 28

it clear that more is necessary than freezing to make something prepared or

preserved.”). This is reflected in the structure of the HTSUS. For example, Chapter

20, HTSUS covers “Preparations of vegetables, fruit, nuts or other parts of plants.”

The chapter excludes fruits and vegetables that have been “prepared or preserved by

the processes specified in chapter 7, 8, or 11.” Ch. 20, Note 1(a), HTSUS. Chapters

7 and 8 contain frozen fruit and vegetables; therefore, Chapter 20 should exclude

them if the HTSUS considers freezing a process to prepare or preserve. Yet Chapter

20 is filled with frozen products — for instance heading 2008, which covers “Other

vegetables prepared or preserved otherwise than by vinegar or acetic acid, frozen[.]”

2008, HTSUS. The HTSUS therefore considers whether a product is frozen to be

separate from whether it is prepared or preserved. See R.T. Foods, 757 F.3d at 1356–

57 (making the same observation concerning vegetables of Chapter 7).

Nor do the fruit-and-vegetable mixtures satisfy the test offered by Orlando

Food, which found that “[i]nherent in the term ‘preparation’ is the notion that the

object involved is destined for a specific use.” 140 F.3d at 1441 (classifying tomato

sauce base in heading for “sauces and preparations therefor”). The parties’

Statements of Undisputed Material Facts, which bind the Court on summary

judgment, provide that (1) all of the products at issue “can be used for many purposes”

and may be “eat[en] directly,” (2) “[n]ew applications for the products at issue may be

developed based on customer usage,” and (3) Nature’s Touch “seeks to provide

customers with a wide range of possible end uses for its products” but “does not know

Court No. 1:20-cv-00131 Page 29

how a customer will ultimately use the products at issue.” Pl.’s Resp. to Def.’s 56.3

Statement, ¶¶ 9–13, ECF No. 30. Products that “can be used for many purposes” are

not “destined for a specific use.” See Orlando Food, 140 F.3d at 1441.

The fruit-and-vegetable mixtures therefore cannot be described as “food

preparations” within the meaning of the HTSUS, the Explanatory Notes, or case law.

Because fruit-and-vegetable mixtures that are consumed as such are excluded from

heading 2106 by Explanatory Note 21.06 (15) and because freezing is distinguished

from preparation by both the HTSUS and case law, the Court holds that Nature’s

Touch’s mixtures of frozen fruits and vegetables are not “food preparations” within

the meaning of heading 2106.

(b) Application of GRI 3

Having established that neither of the candidate HTSUS headings describe the

fruit-and-vegetable mixtures in whole under GRI 1, the Court moves sequentially to

the next applicable General Rule of Interpretation, GRI 3(a), in order to classify the

mixtures.9 GRI 3(a) provides that the heading “which provides the most specific

description” shall be preferred over headings providing “a more general description.”

GRI 3(a), HTSUS. However, when two headings each refer to only part of the

materials contained in mixed goods, they are regarded as equally specific under GRI

3(a); and the court must move to a GRI 3(b) essential character analysis to resolve

9GRI 2(a), which applies to incomplete and unfinished products, is inapplicable. See GRI

2(a), HTSUS. GRI 2(b) provides that “[t]he classification of goods consisting of more than one

material or substance shall be according to the principles of rule 3.” GRI 2(b), HTSUS.

Court No. 1:20-cv-00131 Page 30

the classification. GRI 3(a), HTSUS. In this case, heading 0811 (providing for “Fruit

. . . frozen”) and heading 0710 (providing for “Vegetables . . . frozen”) each “refer to

part only” of the fruit-and-vegetable mixtures. GRI 3(a), HTSUS. The Court will

therefore pick between these two headings by conducting an essential character

analysis under GRI 3(b), which provides that mixtures that cannot be classified by

GRI 3(a) “shall be classified as if they consisted of the material or component which

gives them their essential character, insofar as this criterion is applicable.” GRI 3(b),

HTSUS.

The Court conducts an essential character analysis by “‘isolat[ing] the most

outstanding and distinctive characteristic of the article’” through a fact-based

analysis that “consider[s] the totality of the evidence.” Structural Indus., Inc. v.

United States, 29 C.I.T. 180, 185 (2005) (quoting Canadian Vinyl Indus., Inc. v.

United States, 408 F. Supp. 1377, 1378 (Cust. Ct. 1976)). Put simply, the Court asks

what component “predominate[s]” over the others. See La Crosse Tech. 723 F.3d at

1360. Because the fruit-and-vegetable mixtures contain between 67% and 85% frozen

fruit ingredients by weight, the Court finds that the fruit ingredients predominate

and impart the essential character of these mixtures. See Pl.’s Resp. to Def.’s 56.3

Statement ¶ 4, ECF No. 30; see also Home Depot U.S.A., Inc. v. U.S., 491 F.3d 1334,

1336 (Fed. Cir. 2007) (quoting Explanatory Note VIII for GRI 3(b), explaining that

essential character may be determined by “the nature of the material or component,

its bulk, quantity, weight or value”). Nature’s Touch apparently agrees because it

Court No. 1:20-cv-00131 Page 31

refers to the fruit-and-vegetable mixtures as “fruit mixtures” in its Statement of

Undisputed Material Facts. See, e.g., Pl.’s Facts ¶¶ 14, 15, 19, 21, ECF No. 28. The

fruit-and-vegetable mixtures are therefore properly classified into heading 0811

under GRI 3(b).

C. Application of the GRIs to Determine the Correct Subheading

With all the merchandise classified into heading 0811, the Court next

determines the correct subheading within heading 0811 by reapplying the GRIs

sequentially. See GRI 6, HTSUS. The Court first applies GRI 1 and asks whether

the mixtures are described in whole by the terms of any of the three available six-

digit subheadings: 0811.10 (“Strawberries”); 0811.20 (“Raspberries, blackberries,

mulberries, loganberries, black, white or red currants and gooseberries (other than

kiwi fruit)”); and a basket or residual subheading, 0811.90 (“Other”). Subheading

0811.90, “Other,” contains additional eight-digit subheadings that include, among

others, 0811.90.10 (“Bananas and plantains”); 0811.90.20 (“Blueberries”); 0811.90.52

(“Mangoes”); and, finally, 0811.90.80 (“Other”). See supra at I. The Court applies the

GRIs once at the six-digit subheading level and again, separately, at the eight-digit

level. See GRI 6, HTSUS (providing that “only subheadings at the same level are

comparable”).

One of the few issues that the parties agree on is that subheadings 0811.90

and 0811.90.80, “Other,” do not describe the mixtures under GRI 1. Nature’s Touch

argues that, “[s]ince the various subheadings of Heading 0811, HTSUS include only

Court No. 1:20-cv-00131 Page 32

single fruits, ‘other’ frozen fruits of subheading 0811.90.80, HTSUS, similarly fails to

describe the instant goods . . . this Court should use [noscitur a sociis] and examine

the word ‘other’ in Subheading 0811.90.80, HTSUS, as only encompassing a signal

[sic] fruit not previously or specifically mentioned.” Pl.’s Br. at 12–13, ECF No. 28.

The Government largely agrees. Casting aside Customs’ prior contrary ruling in HQ

H307154, the Government now writes that:

[T]he subheadings of Heading 0811, HTSUS provide for

individual types of fruit . . . . Whereas certain subheadings

under other headings in Chapter 8 cover mixtures of fruit

. . . subheading 0811.90.80, HTSUS simply says ‘other’

without any reference to mixtures, and therefore can be

read to provide just for individual types of fruit not

enumerated in the preceding subheadings of 0811.90,

HTSUS.

Def.’s Br. at 18, ECF No. 36. The parties therefore agree that, because the

subheadings under heading 0811, HTSUS contain only single fruits, a subheading

providing for “other” fruit must be interpreted to mean other single fruits not

otherwise enumerated and cannot include mixed fruit.

On that basis, the Government believes that the mixtures cannot be classified

into any subheading under GRI 1. Nor, in the Government’s view, can a GRI 3(b)

essential character analysis be performed because “no one ingredient imparts the

essential character of these mixes.” Def.’s Br. at 27, ECF No. 36. Instead, the

Government currently believes that each mixture product should be classified by

applying GRI 3(c) and choosing the subheading that occurs last in numerical order

Court No. 1:20-cv-00131 Page 33

among those that equally merit consideration. Id. at 20, 27; see also GRI 3(c), HTSUS.

In this case, the Government would classify each mixture into the subheading that

comes last in numerical order among those subheadings that describe individual

types of fruit included in the mixture. See Def.’s Br. at 20, 27, ECF No. 36.

The Court was skeptical of the parties’ theories regarding subheadings 0811.90

and 0811.90.80, “Other.” In its Supplemental Briefing Order, the Court asked the

parties to address the fact that many subheadings of heading 0811 contain multiple

fruits. See, e.g., 0811.20, HTSUS (providing for “Raspberries, blackberries,

mulberries, loganberries, black, white or red currants and gooseberries”); 0811.90.10,

HTSUS (“Bananas and plantains”); 0811.90.25, HTSUS (“Cashew apples, mameyes

colorados, sapodillas, soursops and sweetsops”). The Court noted that these multiple-

fruit subheadings would appear to include mixtures of the named fruits. For

example, if Nature’s Touch imported a mixture of frozen bananas and plantains, that

product would be “described in whole” by the term “Bananas and plantains.” Cf.

CamelBak Prods., 649 F.3d at 1364. The Court therefore questioned why

subheadings 0811.90 and 0811.90.80, “Other,” should be interpreted to mean “other

single fruits” and exclude mixtures when the term is surrounded by multiple-fruit

subheadings that include mixtures of those fruits. See Supplemental Briefing Order,

ECF No. 42.

In its supplemental brief, the Government repeated its new litigation position

that the mixtures could not be classified as “Other” because the term “only

Court No. 1:20-cv-00131 Page 34

encompasses individual types of fruit not enumerated in the subheadings that

precede it.” Def.’s Supplemental Brief at 2, ECF No. 44. The Government asked that

the term “Other” be read “in its context and with a view to its place with the other

subheadings of 0811.90,” and warned of “unintended consequences” if the term was

interpreted to include mixtures. Id. at 3, 5. For example, the Government noted that

blueberries and cranberries, both of which are duty-free, would become dutiable at

14.5% if imported in a mixture, a result it described, without citation to any authority,

as “counterintuitive.” Id. at 5. The Government instead argued that “Other” should

be read to exclude mixtures that contain products enumerated in the other

subheadings. Otherwise, mixtures containing ingredients provided for eo nomine by

other HTSUS provisions would fall into “Other,” which, in the Government’s view, “is

not what we believe the HTSUS drafters intended.” Id. at 6. Nature’s Touch agreed

with the Government and denied that the multiple-fruit subheadings suggested that

the “Other” subheading could include mixtures. Citing Standard Chlorine Chem. Co.

v. United States, 13 C.I.T. 198 (1989), Nature’s Touch argued that the multiple-fruit

subheadings “are not ‘mixtures’ provisions. They are merely provisions which eo

nomine describe two or more items.” Pl.’s Supplemental Brief at 6, ECF No. 46. On

that basis, Nature’s Touch concluded that “subheading 0811.90.80, covering ‘Other’

frozen fruits, covers individual frozen fruits not mention [sic] in the eight-digit

subheadings which preceded it.” Id.

Court No. 1:20-cv-00131 Page 35

These arguments ignore something important: the plain meaning of “other.”

Cf. Carl Zeiss, 195 F.3d at 1379 (“HTSUS terms are to be construed according to their

common and commercial meanings, which are presumed to be the same.”). “Other”

means “none of the above.” Under GRI 1 (and GRI 6, for subheadings), if a product

is not described in whole by any named subheading, it falls into the residual or basket

subheading “Other.” See, e.g., DMV USA, Inc. v. United States, 25 C.I.T. 970, 972

(2001) (“In the event that merchandise is not found to be classifiable under a specific

subheading, it is then classified as ‘other.’”); Cargill, Inc. v. United States, 318 F.

Supp. 2d 1279, 1290 (CIT 2004) (“Since the merchandise does not fit under a named

provision, it must be classified elsewhere, under the basket provision[.]”).

Both Nature’s Touch and the Government seek to prevent this by reading

“Other” narrowly, using canons of construction and concerns about duty rates to

defeat the plain meaning. But canons and duty rates do not control classification —

the text of the headings and subheadings do. See GRI 6, HTSUS (providing that

“classification shall be determined according to the terms of [the] subheadings.”).

Indeed, soon after arguing that it “seems illogical” to tax a mixture at 14.5% when its

individual ingredients would be subject to lesser rates if imported alone, the

Government concedes that “duty rates apply based on the correct classification” —

not the reverse. Def.’s Supplemental Brief at 5, ECF No. 44.

When interpreting the text of basket subheadings like “Other,” the Federal

Circuit has ruled that the term should be read broadly. See Rollerblade, Inc. v. United

Court No. 1:20-cv-00131 Page 36

States, 282 F.3d 1349, 1354 (Fed. Cir. 2002) (stating that residual subheadings such

as “other [sports equipment]” are “‘intended as a broad catch-all to encompass the

classification of articles for which there is not a more specifically applicable

subheading’”) (quoting EM Indus. v. United States, 22 C.I.T. 156, 165 (1998))

(emphasis added). This comports with the structure of the HTSUS, which “is

designed so that most classification questions can be answered by GRI 1, so that there

would be no need to delve into the less precise inquiries presented by GRI 3.”

Telebrands Corp. v. United States, 36 C.I.T. 1231, 1235 (2012), aff’d, 522 Fed. Appx.

915 (Fed. Cir. 2013).10 Attempts to narrow the meaning of “Other” are therefore

inappropriate. It is the proper classification for a product not described in whole by

the named subheadings within the correct heading.

Both parties argue that the lack of express language providing for mixtures in

the “Other” subheadings should be interpreted to mean that the subheadings cannot

cover mixtures under GRI 1. See Pl.’s Supplemental Brief at 4, ECF No. 46; Def.’s

Br. at 18, ECF No. 36 (“Whereas certain subheadings under other headings in

Chapter 8 cover mixtures of fruit . . . subheading 0811.90.80, HTSUS simply says

10 The Government worries that using a basket provision to classify mixtures “would render

GRI 3 meaningless.” Def.’s Supplemental Brief at 6, ECF No. 44. The Court’s recourse to

GRI 3 in this very case obviates the Government’s fear. See supra at II.B.2.b. Regardless,

the Court cannot reach the later GRIs if classification under GRI 1 is possible. See R.T.

Foods, 757 F.3d at 1353 (“If the proper heading can be determined under GRI 1, the court is

not to look to the subsequent GRIs.”); see also Telebrands Corp., 36 C.I.T. at 1235 n.5 (noting

that proposal to require consideration of GRIs 2–6 concurrently with GRI 1 in certain

circumstances was rejected by the Harmonized System Committee).

Court No. 1:20-cv-00131 Page 37

‘other’ without any reference to mixtures, and therefore can be read to provide just

for individual types of fruit not enumerated in the preceding subheadings of 0811.90,

HTSUS.”). It is surprising that the Government would here require a tariff provision

to specifically enumerate mixtures in order to cover them — after all, the Government

argued precisely the opposite when it urged the Court to classify mixtures in heading

0811 despite the absence of “mixtures” from its text. Cf. Def.’s Br. at 8–9, ECF No.

36 (“Plaintiff argues that Heading 0811, HTSUS does not cover the products at issue

because it does not specifically enumerate ‘mixtures.’ However, this argument

contradicts the broad, plain language of the heading . . . .”); id. at 16 (“[T]he fact that

‘mixtures’ of fruit are not explicitly enumerated in Heading 0811, HTSUS is not

determinative. Limiting this heading to single types of fruit, when its express

language contains no such limitation, would contradict well-settled jurisprudence.”).

The Government’s eagerness to arrive at its now preferred result has led it to demand

that subheading 0811.90.80, “Other,” be “limit[ed] . . . to single types of fruit, when

its express language contains no such limitation” — a startling contradiction. Id.

Rather than allow the Government to switch between two different interpretive rules

at its pleasure, the Court simply adopts the consistent principle that it is improper to

infer a mixtures exclusion where none is present in the plain text of heading 0811 or

subheading 0811.90.80, “Other.”

Regardless of the Government’s situational ethics, the structure of heading

0811 forecloses its latest interpretation. Heading 0811 covers “Fruit and nuts . . .

Court No. 1:20-cv-00131 Page 38

frozen.” 0811, HTSUS (emphasis added). Because none of the heading’s subheadings

mention nuts, all frozen nut products, including mixtures of frozen nuts and mixtures

of frozen fruit and nuts, must fall under subheading 0811.90.80, “Other.” The

subheading necessarily embraces mixtures. The Court therefore declines to apply

one rule to heading 0811 and another to subheading 0811.90.80 and instead finds

that it is unnecessary for either provision to enumerate mixtures in order to cover

them.

The Government believes that subheading 0811.90.80, “Other,” should be read

to exclude products that contain fruits enumerated by heading 0811’s other

subheadings, writing without citation to authority that “classification of a mix of

blueberries and cranberries under the provision for ‘Other,’ meaning in part, ‘other

than blueberries and cranberries,’ seems illogical.” Def.’s Supplemental Brief at 5,

ECF No. 44. Yet that was the logic of the Federal Circuit in R.T. Foods. There, the

court affirmed the Government’s classification of a tempura vegetable mixture

consisting, among other ingredients, of “three pieces of carrot, three pieces of wing

bean [and] three pieces of long or green bean” into heading 2004, HTSUS, covering

“Other vegetables prepared or preserved otherwise than by vinegar or acetic acid,

frozen[.]” R.T. Foods, 757 F.3d at 1351. This heading is itself a broad “Other”

provision that does not enumerate mixtures. The court then classified the product

into six-digit subheading 2004.90, covering “Other vegetables and mixtures of

vegetables.” The court finally had to choose an eight-digit subheading, picking

Court No. 1:20-cv-00131 Page 39

between 2004.90.10 (“Antipasto”), 2004.90.80 (“Beans”), and 2004.90.85 (“Other”).

The Government argued for “Other,” and the court agreed even though the

merchandise at issue contained beans. See id. at 1351, 1357. The Federal Circuit did

not read “Other” narrowly to mean “products containing no antipasto or beans.” Nor

did it resort to GRI 3. Instead, it asked whether the terms “antipasto” or “beans”

described the product. “[B]ecause the subject merchandise is not ‘antipasto’ or

‘beans,’ it is properly classified under subheading 2004.90.85[.]”11 Id. at 1357. A

mixture product may therefore be classified into a residual or basket subheading even

if it contains ingredients enumerated by other subheadings within the proper

heading.

The Government’s sole substantive case citation, Pillowtex Corp. v. United

States, 171 F.3d 1370 (Fed. Cir. 1999) supports, rather than contradicts, the principle

that a mixture product may be classified into a basket subheading even if it contains

materials enumerated by other subheadings within the proper heading. In Pillowtex,

the court classified comforters consisting of down filling in a cotton shell. Id. at 1372.

The dispute centered around whether the cotton and down comforters were

11 It is true that, in R.T. Foods, the residual subheading at issue, 2004.90.85, “Other,”

contained a ten-digit statistical subheading at 2004.90.85.95 providing for “Other, including

mixtures.” Of course, so does the residual subheading at issue in this case. See

0811.90.80.85, HTSUS (providing for “Frozen mixes only of combinations of strawberries,

blueberries, red raspberries or blackberries.”). Because the ten-digit statistical subheadings

are not part of the statutory language of the HTSUS, the Court will consider neither the

statistical subheading involved in R.T. Foods nor the statistical subheading present in this

case. Cf. Chemtall, Inc. v. United States, 878 F.3d 1012, 1026 (Fed. Cir. 2017) (establishing

that “[t]he tenth-digit statistical suffixes . . . are not statutory.”).

Court No. 1:20-cv-00131 Page 40

classifiable in a subheading for bedding articles “Of cotton” or, alternatively, a

subheading for “Other” bedding articles. Id. at 1375. In its GRI 1 analysis, the court

struggled to determine how much cotton an article needed to contain before it could

be described as “of cotton,” and concluded that the language of the heading,

subheading, and Explanatory Notes did not “provide any insight into the meaning of

the term ‘of cotton’ as it relates to comforters.” Id. at 1374. The court concluded that

both “Of cotton” and “Other” described the goods prima facie: “The cotton outer shell

part of the subject comforters allow the comforters to fall under [‘Of cotton’], whereas

the down filling part of the subject comforters allow them to fall under [‘Other’].” Id.

at 1375–76. The court broke the tie by conducting an essential character analysis

under GRI 3(b) and classified the product into “Other” on the basis of its down filling.

Id. at 1376.

Here, there is no interpretive difficulty under GRI 1 where multiple

subheadings describe the goods. The named subheadings under heading 0811 do not

say, for example, “of strawberries,” “containing strawberries,” or “made from

strawberries.” They simply say “Strawberries,” classifying products that can be

described, in whole, as strawberries. See CamelBak Prods., 649 F.3d at 1364 (“We

apply GRI 1 as a substantive rule of interpretation, such that when an imported

article is described in whole by a single classification heading or subheading, then

that single classification applies, and the succeeding GRIs are inoperative.”). Mixture

products containing strawberries cannot be classified under an eo nomine subheading

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for “Strawberries” because “‘when an article “is in character or function something

other than as described by a specific statutory provision — either more limited or

more diversified — and the difference is significant,” it is not properly classified

within an eo nomine provision.’” R.T. Foods, 757 F.3d at 1354 (quoting CamelBak

Prods., 649 F.3d at 1365) (citation omitted). In the absence of a need for any inquiry

into the proportion of strawberries a product must contain before it can be classified

as “Strawberries,” the Court is left with “Other” as the only subheading that describes

the products — which Pillowtex affirms it does when it determined that down and

cotton comforters could be described by “Other” even though the comforters contained

cotton. See Pillowtex, 171 F.3d at 1375.

The Court will follow the same procedure the Federal Circuit employed in R.T.

Foods and that Customs followed in its prior ruling, HQ H307154. At the six-digit

level, the Court asks if any of the mixtures are described in whole by the term

“Strawberries” and concludes that they are not, ruling out 0811.10. It similarly

concludes that none of the mixtures are described in whole by the term “Raspberries,

blackberries, mulberries, loganberries, black, white or red currants and gooseberries

(other than kiwi fruit),” ruling out 0811.20. Subheading 0811.90, “Other,” describes

all of the mixtures because they are not described in whole by the terms of any other

six-digit subheading within the correct heading, 0811. The Court then re-applies GRI

1 at the eight-digit subheading level. It similarly finds that, because the mixtures

are not described in whole by the terms of any of the eight-digit subheadings that

Court No. 1:20-cv-00131 Page 42

enumerate fruits, they fall into the residual subheading 0811.90.80, “Other,” dutiable

at 14.5% ad valorem.

Although this produces the same result that the Government sought for five of

the mixture products (Antioxidant Blend Frozen, Frozen Medley Mixed Fruit,

Blueberry Blitz, Organic Strawberry/Cherry/Kale, and Organic Triple Berry with

Kale), for the other nine products this classification results in a higher duty rate than

the Government seeks. The Court is required to classify the merchandise into the

correct HTSUS provision independent of the parties’ arguments and the

Government’s prior classification. See Jarvis Clark, 733 F.2d at 878 (holding that

“the court’s duty is to find the correct result, by whatever procedure is best suited to

the case at hand”) (emphasis in original). However, because the Government makes

no claim for additional duties as to these nine products, this Court will not order

reliquidation and grant the Government relief it did not seek. See Answer, ECF No.

15. Nature’s Touch is therefore not required to pay the difference in duties that

results from the Court’s reclassification of the nine products for which the

Government did not seek classification into 0811.90.80, HTSUS. See Mitsubishi

Intern. Corp. v. United States, 22 C.I.T. 324, 357 (1998) (finding that, because the

Government did not request as a remedy that Customs reliquidate entries into the

correct subheading, “plaintiff is not required to pay the difference in duties as a result

of the reclassification[.]”), aff’d, 182 F.3d 884 (Fed. Cir. 1999); see also Def.’s Br. at 23

Court No. 1:20-cv-00131 Page 43

n.7, ECF No. 36 (conceding the necessity of counterclaims for collection of excess

duties from Nature’s Touch).

Accordingly, though the Court differs with the Government’s legal rationale,

the Court GRANTS IN-PART the Government’s Motion as to the classification of

Antioxidant Blend Frozen, Frozen Medley Mixed Fruit, Blueberry Blitz, Organic

Strawberry/Cherry/Kale, and Organic Triple Berry with Kale and DENIES IN-

PART the Government’s Motion as to the classification of the remaining nine

products and orders Customs to reclassify all of the products into 0811.90.80, HTSUS.

Nature’s Touch’s Motion is DENIED.

D. Eligibility for Duty-Free Treatment under NAFTA

The parties do not dispute that the North American Free Trade Agreement

(NAFTA) was in force at the time the subject merchandise was imported. See Pl.’s

Br. at 23 n.13, ECF No. 28; Def.’s Br. at 38, ECF No. 36. Under the United States’

tariff laws, products that “‘originate in the territory of a NAFTA party’ are entitled

to preferential duty treatment.” Cummins Inc. v. United States, 454 F.3d 1361, 1361–

62 (Fed. Cir. 2006) (quoting General Note 12(a)(ii), HTSUS). One way that a product

may so originate is if it is transformed in the territory of a NAFTA party, and one

manner of transformation is undergoing a shift in tariff classification as specifically

provided for in General Note 12 of the HTSUS. Nature’s Touch argues that its

merchandise qualifies for duty-free treatment under NAFTA because the products

originate in Canada. Specifically, Nature’s Touch invokes the so-called tariff-shift

Court No. 1:20-cv-00131 Page 44

rule by claiming that the imported ingredients “undergo a change from Chapter 8,

HTSUS, classifications to Heading 2106, HTSUS” when they are mixed at Nature’s

Touch’s Canadian facility. Pl.’s Br. at 24, ECF No. 28. Because the Court finds that

no shift into heading 2106 from another HTSUS chapter occurs, Nature’s Touch’s

arguments concerning duty-free treatment under NAFTA are meritless.

CONCLUSION

Although the purpose of the tariff schedules is to implement the nation’s

customs regime, the tax rates specified therein do not govern the tariff schedules’

interpretation — their text and the ordered rules established in the General Rules of

Interpretation do. To find fully in favor of either the Government or Nature’s Touch

would require the Court to discard these principles of interpretation and to disregard

Federal Circuit precedent so as to engage in a results-oriented inquiry. This the

Court cannot do. In consideration of the foregoing, the Court GRANTS IN-PART

and DENIES IN-PART the Government’s Cross-Motion for Summary Judgment;

DENIES Nature’s Touch’s Motion for Summary Judgment; and holds that the

subject merchandise is properly classified in 0811.90.80, HTSUS, dutiable at 14.5%

ad valorem. Judgment is entered ordering Customs to reclassify all the merchandise

but to reliquidate only the following products: Antioxidant Blend Frozen, Frozen

Medley Mixed Fruit, Blueberry Blitz, Organic Strawberry/Cherry/Kale, and Organic

Triple Berry with Kale. Such reliquidation shall also not include entries of Organic

Triple Berry with Kale originally liquidated in subheading 0811.90.52 at 10.9% and

Court No. 1:20-cv-00131 Page 45

the single entry of Blueberry Blitz at Entry No. MK8-5346590 that was liquidated in

subheading 0811.90.20 duty free, for which the Government does not claim duties

owed. See Def.’s Br. at 23, 29, ECF No. 36. No other products shall be reliquidated,

as the Government has made no claim for excess duties that would result from their

proper reclassification into 0811.90.80, HTSUS.

/s/ Stephen Alexander Vaden

Judge

Dated: May 26, 2023

New York, New York