                                          Slip Op. 19-

                UNITED STATES COURT OF INTERNATIONAL TRADE


 QUAKER PET GROUP, LLC,

        Plaintiff,

 v.                                                Before: Gary S. Katzmann, Judge
                                                   Court No. 13-00393
 UNITED STATES,

        Defendant.



                                            OPINION

[Plaintiff’s motion for summary judgment is granted.]

                                                              Dated:0DUFK

Alan Goggins, Barnes, Richardson & Colburn, LLP, of New York, NY, for plaintiff.

Monica P. Triana, Trial Attorney, International Trade Field Office, Commercial Litigation Branch,
Civil Division, U.S. Department of Justice, of New York, NY, for defendant. With her on the brief
were Joseph H. Hunt, Assistant Attorney General, and Amy M. Rubin, Assistant Director. Of
counsel on the brief were Beth C. Brotman and Sheryl A. French, Office of Assistant Chief
Counsel for International Trade Litigation, U.S. Customs and Border Protection, of New York,
NY.

       Katzmann, Judge: The court returns to the question of the tariff classification under the

Harmonized Tariff Schedule of the United States (2012) (“HTSUS”) of Plaintiff Quaker Pet

Group, LLC’s (“Quaker Pet”) pet carrier products. Previously, the court held that, as a matter of

law, Quaker Pet’s carriers could not be classified under HTSUS heading 4202, which comprises

containers that organize, store, protect, and carry various items, because pets are living beings and

not items. Quaker Pet Group, LLC v. United States, 42 CIT__, 287 F. Supp. 3d 1348 (2018).

However, the undisputed facts available to the court at that time were insufficient to determine
Court No. 13-00393                                                                              Page 2


whether the pet carriers could be covered by HTSUS 6307 -- a provision containing made up

articles of textile that are not included under another tariff category -- or some other HTSUS

heading. Id. at 1359–60. The parties have undertaken discovery and provided the court with

additional, undisputed facts, which now permit the court to conclude that Quaker Pet’s carriers

should be classified under HTSUS 6307.

                                          BACKGROUND

       I. Tariff Classification Generally

       In a classification case, “the court construes the relevant (competing) classification

headings, a question of law; determines what the merchandise at issue is, a question of fact; and

then . . . adjudges . . . the proper classification under which it falls, the ultimate question in every

classification case and one that has always been treated as a question of law.” Bausch & Lomb,

Inc. v. U.S., 148 F.3d 1363, 1366 (1998); see Wilton Indus., Inc. v. United States, 741 F.3d 1263,

1266 (Fed. Cir. 2013). When there is no factual dispute regarding the merchandise, the resolution

of the classification issue turns on the first step, determining the proper meaning and scope of the

relevant tariff provisions. See Wilton Indus., 741 F.3d at 1266–67; Carl Zeiss, Inc. v. U.S., 195

F.3d 1375, 1378 (Fed. Cir. 1999); Bausch & Lomb, 148 F.3d at 1365–66.

       “The HTSUS scheme is organized by headings, each of which has one or more

subheadings; the headings set forth general categories of merchandise, and the subheadings

provide a more particularized segregation of the goods within each category.” Alcan Food

Packaging (Shelbyville) v. United States, 773 F.3d 1364, 1366 (Fed. Cir. 2014) (quoting Wilton

Indus., 741 F.3d at 1266). Chapter and section notes of the HTSUS are statutory law, not

interpretative guidelines, and are binding on the court. Quaker Pet, 287 F. Supp. 3d at 1355 (citing
Court No. 13-00393                                                                           Page 3


Arko Foods Intern., Inc. v. United States, 654 F.3d 1361, 1364 (Fed. Cir. 2011); Park B. Smith,

Ltd. v. United States, 347 F.3d 922, 929 (Fed. Cir. 2003)).

         Tariff classification is determined according to the General Rules of Interpretation

(“GRIs”), and, if applicable, the Additional U.S. Rules of Interpretation. The “General Rules of

Interpretation govern classification of merchandise under the HTSUS, and are applied in numerical

order.” Honda of Am. Mfg. v. United States, 607 F.3d 771, 773 (Fed. Cir. 2010) (internal

quotations and citations omitted).

         Under GRI 1, “classification shall be determined according to the terms of the headings

and any relative section or chapter notes.” 1 See also Faus Grp., Inc. v. United States, 581 F.3d

1369, 1372 (Fed. Cir. 2009) (citing Orlando Food Corp. v. United States, 140 F.3d 1437, 1440

(Fed. Cir. 1998)). Unless there is evidence of “contrary legislative intent, HTSUS terms are to be

construed according to their common and commercial meanings.” La Crosse Tech., Ltd. v. United

States, 723 F.3d 1353, 1358 (Fed. Cir. 2013); Russell Stadelman & Co. v. United States, 242 F.3d

1044, 1048 (Fed. Cir. 2001). In ascertaining a term’s common meaning, 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); see Millennium Lumber Distrib., Ltd. v. United States, 558 F.3d

1326, 1328–29 (Fed. Cir. 2009); Carl Zeiss, 195 F.3d at 1379. “Where a tariff term has various

definitions or meanings and has broad and narrow interpretations, the court must determine which



1
    GRI 1 provides that:

         The table of contents, alphabetical index, and titles of sections, chapters and
         subchapters are provided for ease of reference only; for legal purposes,
         classification shall be determined according to the terms of the headings and any
         relative section or chapter notes and, provided such headings or notes do not
         otherwise require, according to the following [GRI] provisions.
Court No. 13-00393                                                                           Page 4


definition best expresses the congressional intent.” Richards Med. Co. v. United States, 910 F.2d

828, 830 (Fed. Cir. 1990). Although not binding law, courts also look to the Explanatory Notes

(“ENs”) to the Harmonized Commodity Description and Coding System, maintained by the World

Customs Organization, as persuasive authority on how to interpret and apply HTSUS provisions.

See Home Depot U.S.A., Inc. v. United States, 491 F.3d 1334, 1336 n.1 (Fed. Cir. 2007)

(“Although the Explanatory Notes ‘do not constitute controlling legislative history,’ they are

nonetheless intended to offer guidance in clarifying the scope of HTSUS subheadings.” (citing

Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994))); Deckers Outdoor

Corp. v. United States, 714 F.3d 1363, 1367 n.1 (Fed. Cir. 2013); see generally Alcan Food

Packaging (Shelbyville) v. United States, 37 CIT __, 929 F. Supp. 2d 1338 (2013) (relying

extensively on the guidance provided by the ENs to resolve the case under GRI 1), aff’d, 771 F.3d

1364 (Fed. Cir. 2014).

       “The HTSUS is designed so that most classification questions can be answered by GRI 1.”

Telebrands Corp. v. United States, 36 CIT__, __, 865 F. Supp. 2d 1277, 1280 (2012), aff’d, 522

Fed. App’x 915 (Fed. Cir. 2013). “What is clear from the legislative history of the World Customs

Organization and case law is that GRI 1 is paramount . . . The HTSUS 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.” Id. A product is classifiable under GRI 1 if it “is

described in whole by a single classification heading or subheading” of the HTSUS; however,

“[w]hen goods are 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, then the
Court No. 13-00393                                                                                 Page 5


goods cannot be classified” pursuant to GRI 1. 2 La Crosse Tech., 723 F.3d at 1358 (quoting

CamelBak Prods., LLC v. United States, 649 F.3d 1361, 1364 (Fed. Cir. 2011)).

         II. Procedural History

         In this case, the Government classified the subject pet carriers under subheading

4202.92.305 3 of the HTSUS, the provision covering traveling bags and similar containers of textile

material. Amended Compl. ¶ 10; Def.’s Answer ¶ 10. This classification carries a 17.6 percent

duty rate. HTSUS 4202.92.30. Quaker Pet contested the liquidations by filing a protest on April

25, 2013, because it believed that pet carriers are classifiable under HTSUS subheading

6307.90.98, “Other made up articles, including dress patterns:…Other:…Other,” which carries a

duty rate of seven percent. Summ., Dec. 9, 2013, ECF No. 1. Customs denied the protest on June

21, 2013, and this action followed. Id. Initial disclosures were served on January 21, 2015 and

supplemented on July 17, 2015. Resp. to Mot. for J. on the Pleadings as to Count I of the Amended

Compl. (“Def.’s Br.”), Oct. 30, 2015, ECF No. 28, at Exhibits 1–2. Quaker Pet moved for

judgment on the pleadings as to Count I of its Amended Complaint on September 18, 2015, and

the Government filed its response on October 30, 2015. Mot. for J. on the Pleadings as to Count I



2
    This case need not proceed beyond GRI 1, as discussed below, and so further discussion of GRI
    2 and GRI 3 is unnecessary.
3
    HTSUS 4202.92.30 covers:

         Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle
         cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters
         and similar containers; traveling bags, insulated food or beverage bags, toiletry
         bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map
         cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry
         boxes, powder cases, cutlery cases and similar containers, of leather or of
         composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber
         or of paperboard, or wholly or mainly covered with such materials or with paper:…
                 With outer surface of sheeting of plastic or of textile materials:...
                         Other…
Court No. 13-00393                                                                          Page 6


of the Amended Compl. (“Pl.’s Br.”), ECF No. 21; Def.’s Br. Quaker Pet filed its reply on

November 12, 2015, and the first oral argument was held on February 11, 2016. Pl.’s Reply Br.,

ECF No. 29; Oral Argument, ECF No. 35.

       On November 29, 2017, the case was reassigned to a new judge. Reassignment Order,

ECF No. 52. Quaker Pet filed a motion to withdraw Count II 4 of the amended complaint on

December 14, 2017, and the Government filed its response opposing withdrawal of Count II on

January 2, 2018. ECF. No. 57; ECF No. 59. Oral argument was held anew on January 17, 2018.

ECF No. 60.

       In its ensuing opinion, issued in February 2018, the court held that, as a matter of law,

Quaker Pet’s products could not be classified under heading 4202. Quaker Pet, 287 F. Supp. 3d

at 1358–59. Under the Federal Circuit’s Avenues In Leather test, “the common characteristic or

unifying purpose of the goods in heading 4202 consist[s] of organizing, storing, protecting, and

carrying various items.” Avenues In Leather, Inc. v. United States, 423 F.3d 1326, 1332 (Fed. Cir.

2005) (emphasis added) (citations omitted). The court reasoned that because the primary purpose

of Quaker Pet’s products was to carry living beings -- namely, pets -- and not items, these pet

carriers did not meet the Avenues In Leather test. Quaker Pet, 287 F. Supp. 3d at 1358–59.

However, “the undisputed facts contained in the pleadings d[id] not provide sufficient information

-- for example, the materials comprising each style of pet carrier or any procedure through which

the products were assembled or otherwise made up -- for the court to determine whether the pet

carriers are properly classifiable under HTSUS heading 6307 or another heading.” Id. at 1359.



4
  In Count II, Quaker Pet argued that “[i]n the alternative, the imported pet carriers are properly
classified under subheading 4201.00.30, HTSUS, dutiable at the rate of 2.4% ad valorem, as:
‘Saddlery and harness for any animal (including traces, leads, knee pads, muzzles, saddle cloths,
saddle bags, dog coats and the like), of any material: Dog leashes, collars, muzzles, harnesses and
similar dog equipment.’” Id. ¶13.
Court No. 13-00393                                                                          Page 7


The court also granted Quaker Pet’s Motion to Withdraw Count II of the Amended Complaint,

reasoning that “the court has an independent duty to evaluate all potential HTSUS classifications,

and so withdrawing Count II will not prevent the court from considering heading 4201 and any

other potentially relevant headings when ruling on Count I” after the relevant facts were further

developed. Id. at 1360.

       Subsequently, the parties conducted discovery to determine both the materials comprising

each style of pet carrier and the procedure by which each carrier was assembled. Based on that

discovery, the parties submitted their Joint Statement of Undisputed Facts (“JSUF”) on October 5,

2018. ECF No. 73. On January 9, 2019, the court held a teleconference with the parties and

requested supplemental submissions concerning the parties’ positions on the appropriate

classification of the pet carriers in light of discovery and the court’s previous opinion. ECF No.

77. Quaker Pet filed its supplemental submission on January 9, 2019 and a motion for summary

judgment on February 6, 2019. ECF No. 78; ECF No. 79. In its February 15, 2019 response to

Quaker Pet’s motion for summary judgment, while continuing to maintain that the appropriate

classification for the pet carriers is in heading 4202, the Government agreed that, based on Quaker

Pet and the undisputed facts, the court has enough information to enter final judgment. ECF No.

80.

       III. The Merchandise at Issue

       The imported merchandise consists of five styles of pet carriers. Amended Compl. ¶ 5,

Feb. 12, 2015, ECF No. 7; JSUF ¶¶ 2–3, Oct. 5, 2018, ECF No. 73. Pet carrier style numbers

55234, 55534, 97009, and 98791 were imported into Newark, NJ, and style number 94279 was

imported into Long Beach, CA. Amended Compl. ¶¶ 6–7; JSUF ¶¶ 2–3. The pet carriers were

manufactured in and imported from China. JSUF ¶ 4. These pet carriers are used to carry cats,
Court No. 13-00393                                                                            Page 8


dogs, or other pets. Amended Compl. ¶ 8; Answer to Pl.’s Amended Compl. ¶ 8, Apr. 27, 2015,

ECF No. 13 (“Def.’s Answer”). Subsequent to the commencement of this action, Quaker Pet, the

importer of record, was sold to Worldwise, Inc. Letter from Pl.’s Counsel, Jan. 17, 2018, ECF No.

61. Worldwise, Inc. has continued to import the same pet carriers, typically under the SherpaTM

brand trademark. Id. A description of the pertinent aspects of each of the pet carriers is as follows:

   1) Style No. 55534, the Original Small Deluxe, measures approximately 15 by 10 by 8 ½

       inches and is composed of approximately 62% textile materials (nylon and polyester), 13%

       polyvinylchloride plastic, 5% medium density fiberboard, 14% metal (nickel plated iron),

       2% fiberglass, and 4% packing material. JSUF ¶¶ 2(a), 5–6. The Original Small Deluxe

       is made “by cutting both the solid and mesh materials into panels of the appropriate size

       and sewing the panels together with zippers.” Id. ¶ 8. The red trim of this model and the

       strap handles are also sewn onto the carrier. Id. ¶¶ 9–10. Metal clasps and rings attach the

       shoulder strap. Id. ¶ 10.

   2) Style No. 55234, the Original Medium Deluxe, measures approximately 17 by 11 by 10 ½

       inches. Id. ¶¶ 2(b), 11. Otherwise, its composition and method of manufacture are

       essentially identical to those of the Original Small Deluxe above. Id. ¶¶ 12, 16–18.

   3) Style No. 97009, the AKC Medium Duffle, measures approximately 14 by 9 ¼ by 9 inches

       and is composed of 60% textile materials (nylon and polyester), 16% polyvinylchloride

       plastic, 8% medium density fiberboard, 12% metal (nickel plated iron), and 4% packing

       material. Id. ¶¶ 2(c), 19, 21. The AKC Medium Duffle is manufactured in essentially the

       same way as the Original Small Deluxe and Original Medium Deluxe models. Id. ¶¶ 23–

       25.
Court No. 13-00393                                                                             Page 9


   4) Style No. 98791, Sherpa on Wheels, measures approximately 18 5/8 by 10 by 8 ½ inches

       and is composed of approximately 60% textile materials (nylon and polyester), 13%

       polyvinylchloride plastic, 5% medium density fiberboard, 16% metal (nickel plated iron),

       2% fiberglass, and 4% packing material. Id. ¶¶ 2(d), 26, 29. The Sherpa on Wheels

       undergoes essentially the same manufacturing process as the previously discussed models,

       with an additional step for attaching the wheels. Id. ¶¶ 31–34.

   5) Style No. 94279, the Tote-Around-Town, measures approximately 18 by 8 by 15 inches

       and is composed of approximately 68% textile materials (nylon and polyester), 15%

       polyvinylchloride plastic, 5% medium density fiberboard, 8% metal (nickel plated iron),

       and 4% packing material. Id. ¶¶ 3, 35, 37. The Tote-Around-Town is made “by cutting

       both the solid and mesh materials into panels of the appropriate size and sewing the panels

       together with zippers.” Id. ¶ 39. Its handles and safety strap are also sewn to the sides of

       the carrier. Id. ¶ 40.

Additionally, for each pet carrier at issue in this case, the textile portions account for at least 60%

of the cost of the materials. Id. at Ex. 3 p. 55–56, Deposition of Neil Werde, Aug. 21, 2018.

                       JURISDICTION AND STANDARD OF REVIEW

       The court has jurisdiction over this action under 28 U.S.C. § 1581(a).              In a tariff

classification case, the court proceeds de novo. Park B. Smith, Ltd. v. United States, 347 F.3d

922, 924 (Fed. Cir. 2003); see Customs Courts Act of 1980 § 301, 28 U.S.C. § 2640(a)(1)(2012)

(directing the Court of International Trade to review classification rulings on “the basis of the

record made before the court”).

                                           DISCUSSION

       The court grants summary judgment “if the movant shows that there is no genuine dispute
Court No. 13-00393                                                                         Page 10


as to any material fact and the movant is entitled to judgment as a matter of law.” USCIT R. 56(a).

In a tariff classification action, summary judgment is appropriate when “the material facts of what

the merchandise is and what it does are not at issue.” Wilton Indus., 741 F.3d at 1266–67; Bausch

& Lomb, 148 F.3d at 1365. Here, as mentioned previously, the parties have submitted a JSUF

detailing the characteristics of the merchandise in question, and thus material facts regarding the

pet carriers are not in dispute. What remains is for the court to determine, based on these facts,

the appropriate classification for the merchandise.

       As discussed above, GRI I requires that classification be determined “according to the

terms of the headings and any relative section or chapter notes.” See Faus Grp., Inc., 581 F.3d at

1372 (citing Orlando Food Corp., 140 F.3d at 1440). Chapter 63, Note 1 provides that “Sub-

Chapter I [63.01–63.07] applies only to made up articles, of any textile fabric.” Section XI, Note

7(f) defines “made up” as “assembled by sewing, gumming or otherwise (other than piece goods

consisting of two or more lengths of identical material joined end to end and piece goods composed

of two or more textiles assembled in layers, whether or not padded).” “Assemble,” as defined by

the Federal Circuit in ABB, Inc. v. United States, 421 F.3d 1274, 1276 (Fed. Cir. 2005) (citing

Webster’s Third New International Dictionary p. 131 (1993)), “means to fit together the various

parts of [sic] so as to make into an operative whole.” However, heading 6307 includes only “made

up textile articles of any textile fabric (woven or knitted fabric, felt, nonwovens, etc.) which are

not more specifically described in other Chapters of Section XI or elsewhere in the [HTSUS]

Nomenclature.” Chapter 63, ENs (emphasis in original). Essentially, for merchandise to be

classified under heading 6307, it must be an assembled textile article that fits under no other

HTSUS heading.
Court No. 13-00393                                                                         Page 11


       Quaker Pet’s products meet these requirements. The textile portion constitutes at least 60%

of both the cost and material used to manufacture all five models of pet carriers. JSUF ¶¶ 6, 12,

21, 29, 37, Ex. 3 at pp. 55–56. The pet carriers are assembled by sewing together the various

components. Id. ¶¶ 8–10, 16–18, 23–25, 31–34. Finally, the pet carriers fit under no other HTSUS

heading. For the reasons discussed in Quaker Pet, the pet carriers cannot be classified under

heading 4202. See Quaker Pet, 287 F. Supp. 3d at 1358–59.

       Moreover, Quaker Pet’s pet carriers also cannot be classified under heading 4201,

“[s]addlery and harness for any animal (including traces, leads, knee pads, muzzles, saddle cloths,

saddle bags, dog coats and the like), of any material.” The Explanatory Notes for the chapter

elaborate on this category with further examples:

       This heading covers equipment for all kinds of animals, of leather, composition
       leather, furskin, textiles or other materials.

       These goods include, inter alia, saddles and harness (including reins, bridles, and
       traces) for saddle, draught and pack animals, knee pads, blinkers and boots for
       horses, decorated trappings for circus animals, muzzles for any animal, collars,
       leads and trappings for dogs or cats, saddle cloths, saddle cushions and saddle bags,
       horse blankets specially shaped for the purpose, coats for dogs.

The HTSUS does not define “saddlery” or “harness,” and so the court may “consult lexicographic

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

of the terms used.” Baxter Healthcare Corp., 182 F.3d at 1337–38; see Millenium Lumber, 558

F.3d at 1328–29 (citation omitted); Carl Zeiss, 195 F.3d 1379 (citation omitted). The American

Heritage Dictionary of the English Language, (3rd Ed., 1992 at pp. 825, 1586) defines “saddlery”

as “[e]quipment, such as saddles and harnesses, for horses” and “harness” as “[t]he gear or tackle,

other than yoke, with which a draft animal pulls a vehicle or an implement” or “[s]omething

resembling such gear or tackle, as the arrangement of straps to hold a parachute to the body.”

Crucially, saddlery, harnesses, and the other exemplars listed in the heading and Explanatory Note
Court No. 13-00393                                                                          Page 12


all fasten to the animal, while the pet carrier does not. Because Quaker Pet’s products do not share

the unifying characteristic of fastening to the animal that the imports included under heading 4201

share, they are different from saddlery and harnesses and cannot be classified under this category.

                                           CONCLUSION

          Based on the undisputed material facts, Quaker Pet’s products are properly classified under

heading 6307 because they are made up articles of textiles that cannot be classified under any other

heading. Consequently, the court grants Quaker Pet’s motion for summary judgment. Quaker

Pet’s products shall be reliquidated under HTSUS subheading 6307.90.9889 and Quaker Pet will

be refunded excess duties collected or payments tendered, including interest, to the extent provided

by law.

          SO ORDERED.

                                                               /s/ Gary S. Katzmann
                                                               Gary S. Katzmann, Judge


 Dated: 0DUFK
        New York, New York
