                             Slip Op. 10 - 90

             UNITED STATES COURT OF INTERNATIONAL TRADE

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AROMONT USA, INC.,                   :

                             Plaintiff, :

                   v.                       :   Court No. 03-00354

UNITED STATES,                              :

                          Defendant. :
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                             Opinion & Order


[Upon cross-motions as to classification of
 certain food flavorings, summary judgment
 for the plaintiff.]

                                                 Decided:    August 12, 2010

     Bryan Cave LLP (Brian A. Sher and Joseph H. Heckendorn) 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
(Marcella Powell); and Office of the Assistant Chief Counsel,
International   Trade  Litigation,   U.S.   Customs  and   Border
Protection (Sheryl French), of counsel, for the defendant.

           AQUILINO,    Senior     Judge:       U.S.    Customs   and   Border

Protection (“CBP”) classified certain merchandise derived from

veal,   chicken,   duck,   lamb,   beef,    fish,      lobster,   mushroom   or

vegetable stock under subheading 2104.10.00 (“Soups and broths

and preparations therefor . . . Other”) of the Harmonized Tariff

Schedule of the United States (“HTSUS”) (2001) and imported from
Court No. 03-00354                                                          Page 2


France        by     Aromont    USA,      Inc.,        which    protested        that

classification, taking the position that those goods should have

been       classified   under   subheading     2106.90.99,       covering     “Food

preparations not elsewhere specified or included . . . Other”.

Upon denial of the protest after liquidation of duties1, the

plaintiff commenced this case, and, following joinder of issue,

the    defendant      interposed     a   motion    for      summary   judgment    of

dismissal.2        The plaintiff has responded with a cross-motion for

summary judgment on its behalf.


               Jurisdiction of the court is pursuant to 19 U.S.C.

§1581(a) and 28 U.S.C. §2631(a).


                                          I

               The   import,    of   course,      of    a   motion    for   summary

judgment is that there is no genuine issue of material fact that

requires trial within the meaning of USCIT Rule 56 and teaching



       1
       They amounted to 100 percent ad valorem pursuant to the
authority granted the U.S. Trade Representative by section 301
of the Trade Act of 1974, as amended, 19 U.S.C. §2411. See
Defendant’s Memorandum, p. 2 n. 3.
       2
       The motion papers make clear that only plaintiff’s entries
classified under subheading 2104.10.00 remain at issue, not any
of those encompassed by Protest No. 1101-02-100655, which was
originally impleaded herein. Compare Defendant’s Statement of
Undisputed Material Facts, paras. 6-8, with Plaintiff’s Response,
paras. 6-8.
Court No. 03-00354                                                  Page 3


of Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

Here, the parties’ papers in support of their cross-motions do

not lead this court to conclude otherwise. Indeed, the plaintiff

admits defendant’s description of the preparation if not nature

of the products at issue, which are listed in its Exhibit A3, to

wit:

       a.   First, Aromont ran the bones through the “guillotine”
            to cut them into small sizes.

       b.   Next, Aromont fe[]d the bones directly into cookers,
            or the bones were roasted.

       c.   The bones were then simmered for a long period of
            time.

       d.   The resulting “classical stock” had the fat skimmed
            off and the bones and other sediment removed. The
            resulting mixture was a “clear richly flavored broth
            that [was] then reduced to a rich honey like
            consistency.”

       e.   The honey paste         was   then   pumped   into   mixing   and
            packing machines.

                                *         *       *




       3
       Listed, in each instance “concentrated”, are beef stock;
beef stock flavor; boiled chicken broth, duck fat and chicken
fat flavor; roast chicken broth and duck fat flavor; duck broth
and duck fat flavor; fish broth; lamb broth and lamb fat flavor;
lobster broth; mushroom base; mushroom stock; veal broth flavor;
veal   and  beef  broth   flavor;  vegetable   stock  [numerical
annotation of each omitted]. See generally Defendant’s Exhibit
K.
Court No. 03-00354                                                            Page 4


          16.   There is no difference between the merchandise
     Aromont marketed as “demiglaces” and those it marketed as
     “stocks.”

          17. With the exception of the vegetable varieties,
     Aromont’s “stocks” were prepared in the exact same manner.4


                                       A

            The primary thrust of plaintiff’s protest to CBP, and

now on appeal to this court, is that two rulings it obtained

earlier    from   Customs,    namely       NY800645       (Aug.      26,    1994)    and

HQ957024 (March 3, 1995)5, should have led the agency to the

classification    preferred    herein.          They    did   not.    Nor    can    this

court conclude otherwise now.          The Service’s ruling practice and

procedure published at the time of entry were in pertinent part:


          Tariff classification rulings. Each ruling letter
     setting forth the proper classification of an article
     under the provisions of the [HTSUS] will be applied
     only with respect to transactions involving articles
     identical to the sample submitted with the ruling
     request or to articles whose description is identical
     to the description set forth in the ruling letter.


19   C.F.R.   §177.9(b)(2)     (2001).          NY800645      describes       one     of

Aromont’s proffered    substances          as    a     beef flavoring in powder



     4
        Compare Defendant’s Statement of Undisputed Material
Facts, para. 14 and paras. 16 and 17 (citations omitted), with
Plaintiff’s Response, paras. 14 and 16 and 17.
     5
         Plaintiff’s Exhibits A and B.
Court No. 03-00354                                                   Page 5


form       without   the   use   of   beef   extract.   As   for   the   other

substances referred for ruling, all liquids, Customs found:


            1)   Veal flavoring – contains veal extract, veal
       fat, concentrates of carrot, onion, leek, tomato,
       garlic and mushroom, olive oil, sunflower oil,
       glucose, dextrine and other ingredients.

            2)   Chicken  flavoring    –    contains    chicken
       extract,   chicken fat,   duck    extract,   egg   yolk,
       concentrates of carrot, onion and leek, olive oil,
       sunflower    oil,  glucose,    dextrine     and    other
       ingredients.

            3)   Duck flavoring – contains duck extract, duck
       fat, sunflower oil, glucose, dextrine, and other
       ingredients.

            4)   Lamb flavoring – contains lamb extract, lamb
       fat, concentrates of carrot, onion, leek and garlic,
       olive oil, sunflower oil, glucose, dextrine, and other
       ingredients.

            5)   Fish flavoring – contains fish extract,
       chicken fat, seafood extract, concentrates of carrot,
       onion and shallot, sunflower oil, glucose, dextrine,
       and other ingredients.

            6)   Lobster flavoring – contains fish extract,
       lobster   extract,   chicken  fat,   seafood   extract,
       concentrates of carrot, onion, tomato and shallot,
       sunflower oil, glucose, dextrin and other ingredients.

            7)   Beef flavoring – contains glucose, dextrine,
       autolysed yeast, soya lecithin, salt and other
       ingredients.6


       6
        The   focus of   HQ957024  upon  Aromont  request  for
reconsideration by Headquarters was not on these findings per
se, rather whether the percentages of the animal extracts
therein entitled the flavorings to classification under HTSUS

                                                        (footnote continued)
Court No. 03-00354                                                               Page 6


On   its     face,       this   description        is    not     “identical”     to    the

description of plaintiff’s merchandise currently at bar, either

as   admitted       by    it    with   regard     to     defendant’s      statement     of

undisputed material facts, supra, or in its own statement or

pleadings.     Cf.       Plaintiff’s     Complaint        passim    and    its    Counter

Statement      of        Undisputed     Facts,          paras.     3-8.    Hence,      the

requirement of section 177.9(b)(2) is not satisfied, nor is the

other requirement of that section met in the papers before this

court.      That    is,    they   do   not       show    that    plaintiff’s     present

products are “identical” to the samples upon which Customs made

its findings in NY800645 and recited above.

                                             B

              The first general rule of interpretation of the HTSUS

is   that    classification        shall     be    determined      according      to   the

terms of its headings and any relative section or chapter notes.

In this case, the defendant stands by CBP’s classification of

plaintiff’s goods as “broth” eo nominee heading 2104.                             But it

correctly notes that that term is not defined in the HTSUS.

Hence, the common and commercial meaning is presumed. See, e.g.,

Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 789

(Fed.Cir. 1988).          See also     E.M. Chemicals v. United States, 920

_______________________
heading   1603.  (“Extracts   and   juices  of   meat,  fish                            or
crustaceans, molluscs or other aquatic invertebrates”).
Court No. 03-00354                                                         Page 7


F.2d   910,    913    (Fed.Cir.    1990)    (“[t]ariff       terms   are    to   be

construed in accordance with their common and popular meaning,

in the absence of a contrary legislative intent”).


              The   defendant    relies    on    a    dictionary   definition    of

“broth”, to wit, a “liquid in which meat, fish, cereal grains,

or vegetables have been cooked”. Defendant’s Memorandum, p. 11,

quoting      from    Webster’s    Third    New       International   Dictionary,

Unabridged (1981 ed.). While obviously broad, this definition

does   not    capture    the     essence   of        plaintiff’s   “concentrated”

products, the processing of which results in “a rich honey like

consistency” or “honey paste”. CPB’s National Import Specialist

refers to “reduc[tion] to 70% solids.”                   Defendant’s Exhibit I,

para. 7.      Whatever the precise percentage, it does not connote

the degree of liquidity or fluidity forever expected of a broth.

To quote the paragon American lexicon, broth is

       [l]iquid in which meat, and often barley, rice,
       vegetables, or the like, have been gently boiled; thin
       or simple soup.


Webster’s New International Dictionary of the English Language,

Unabridged, p. 343 (2d ed. 1934). See also Plaintiff’s Reply

Memorandum, Exhibit B, first page.                   To recite from Plaintiff’s

Counter Statement of Undisputed Facts:
Court No. 03-00354                                                Page 8


          11. Aromont stocks are made from roasting bones;
     whereas broths are made from cooking meat in water.

          12.   The   Aromont  flavorings are   physically
     different from broths in that they contain much less
     salt and are much more gelatinous.

          13. The Aromont flavorings are not finished
     products, whereas  broths are   capable of being
     consumed.

          14. Aromont is not aware of any of its customers
     using the products at issue as a finished soup or
     finished broth.

          15.   The  largest   customers   of  the Aromont
     flavorings at issue use the products as ingredients
     for gravies, sauces and salad dressings.7


             Defendant’s    classification      under   HTSUS   subheading

2104.10.00     (“Soups     and   broths   and   preparations    therefor”)

encompasses not only elements eo nominee but also use. And,

     in the absence of legislative intent to the contrary,
     a product described by both a use provision and an eo
     nominee provision is generally more specifically
     provided for under the use provision.

United States v. Siemens Am., Inc., 653 F.2d 471, 478 (CCPA

1981).   The latter such provision in 2104.10.00, as well as in

plaintiff’s preferred 2106.90.99, is “preparations”, which is


     7
       Citations omitted.  The defendant disagrees, at least in
part, with these statements of fact but also responds as to each
that its “dispute is not material to the issues in this action,
and therefore does not prevent summary judgment.”    Defendant’s
Response to Plaintiff’s Counter Statement of Material Facts, pp.
7-9.
Court No. 03-00354                                                    Page 9


not defined in the HTSUS.         However, inherent in the term is an

expectation of specific use.          See, e.g., Orlando Food Corp. v.

United States, 140 F.3d 1437, 1441 (Fed.Cir. 1998), citing the

definition of “preparation” in 12 The Oxford English Dictionary,

p. 374 (2d ed. 1989), namely, “a substance specially prepared,

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

or medicine”.


           Proper classification turns on the principal use of

subject merchandise. See, e.g., Clarendon Mktg., Inc. v. United

States,   144   F.3d    1464,    1467     (Fed.Cir.    1998)   (holding         the

principal use of the class is controlling, not the principal use

of the specific import). Additional U.S. Rule of Interpretation

1(a) of the HTSUS provides that, in

     the absence of special language or context which
     otherwise   requires   --   a   tariff  classification
     controlled by use . . . is to be determined in
     accordance with the use in the United States at, or
     immediately prior to, the date of importation, of
     goods of that class or kind to which the imported
     goods belong, and the controlling use is the principal
     use.


           Principal    use     has   been   defined   as    the   one    “which

exceeds   any   other   single    use.”      Minnetonka     Brands,      Inc.    v.

United States, 24 CIT 645, 651, 110 F.Supp.2d 1020, 1027 (2000)

(citations omitted).     In evaluating       principal      use, courts     may
Court No. 03-00354                                                            Page 10


consider, inter alia: the general physical characteristics of

the merchandise, the expectation of the ultimate purchasers, the

channels, class or kind of trade in which the merchandise moves,

the environment of the sale, the use, if any, in the same manner

as   merchandise        which     defines          the     class,      the    economic

practicality of so using the import, and the recognition in the

trade of this use. United States v. Carborundum Co., 536 F.2d

373, 377 (CCPA), cert. denied, 429 U.S. 979 (1976).


             In   the     case       at     bar,    Aromont     products      are    not

principally used as soups or broths.                      They are “sold through

three     principal     channels:         large    ingredient       customers,      food

service    distributors,       and     []    retail      distributors    and     retail

stores.” Plaintiff’s Memorandum, p. 13.                   Review of the company’s

sales reports reveals that Aromont’s single largest industrial

customer    accounts     for    over      half     of    its   sales   and   uses    the

flavorings in gravies and sauces in its line of frozen dinners.

Other applications include “brines, marinades, injections, rubs,

flavor additives, and           vacuum tubing.”            Id. at 17.        In short,

plaintiff’s products are found in a variety of end uses:


        . . .[A]pplications abound, with the addition of wine,
        water, meat jus or cream; delectable traditional
        sauces, glazes, stocks and soups are readily fashioned
        or try our heat and serve EZ-Sauces and Gravies!
Court No. 03-00354                                                         Page 11


Defendant’s Exhibit C.               While the result of such application

could       be   “soup”,     as   imported    plaintiff’s   goods    are   properly

classified under heading 2106 “Food preparations not otherwise

specified or included”).8

                                             II
                 In   view   of    the   foregoing,    defendant’s    motion    for

summary judgment must be denied.                  Plaintiff’s cross-motion will

be granted, with summary judgment entered in its favor.

                 So ordered.
Decided:         New York, New York
                 August 12, 2010


                                         ___/s/ Thomas J. Aquilino, Jr.____
                                                   Senior Judge




        8
       In reaching this conclusion of law, based on the parties’
excellent submissions in support of their cross-motions for
summary judgment, the court has not found it necessary to
consider the declaration of Khaled Zitoun, plaintiff’s exhibit D.
Ergo, defendant’s motion to strike certain portions of that
declaration and plaintiff’s Motion for Leave to File a
Supplemental Declaration of Khaled Zitoun Instanter can be, and
each hereby is, denied as moot.
