                          Slip Op. 11 – 133

          UNITED STATES COURT OF INTERNATIONAL TRADE

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FIRSTRAX, DIV. OF UNITED PET GROUP,
INC.,                               :
                         Plaintiff,
                                    :
                 v.                     Court No. 07-00097
                                    :
UNITED STATES,
                                    :
                         Defendant.
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                          Opinion


[Upon cross-motions as to classification
 of port-a-crates, summary judgment for
 the plaintiff.]

                                           Decided: October 21, 2011

     Barnes Richardson & Colburn (Lawrence M. Friedman and Shama
K. Patari) 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
(Jason M. Kenner); and Office of the Assistant Chief Counsel,
International   Trade  Litigation,   U.S.   Customs  and  Border
Protection (Beth Brotman), of counsel, for the defendant.


          AQUILINO,   Senior   Judge:   This   test   case   contests

classification by U.S. Customs and Border Protection (“CBP”) of

merchandise imported from China for the plaintiff sub nom. port-

a-crate® under copious heading 4202 of the 2005 Harmonized Tariff

Schedule of the United States (“HTSUS”), to wit,
Court No. 07-00097                                         Page 2


          Trunks, suitcases, vanity cases, attache
          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[,]

in particular, subheading 4202.92.9026 (“Other . . . With outer

surface of sheeting of plastic or of textile materials . . .

Other . . . Other . . . Other:   Of man-made fibers . . . 17.6%).

The importer duly protested that the goods should have been

classified as other made up (textile) articles within the meaning

of HTSUS subheading 6307.90.9889.


          Upon CBP denial of the protest and liquidation of the

duties claimed, the plaintiff filed its complaint herein that has

been answered by the defendant, which thereafter interposed a

motion for summary judgment upon the joined issue(s). Plaintiff’s

simultaneously-filed response is in the form of a cross-motion

for summary judgment.
Court No. 07-00097                                             Page 3


                                I

          The court’s jurisdiction is pursuant to 28 U.S.C. §§

1581(a) and 2631(a), and its Rule 56(h)(1) requires that any

motion for summary judgment contain a separate, short and concise

statement of the material facts as to which the moving party

contends there is no genuine issue to be tried.


          Defendant’s motion contains such a statement, in part,

as follows:


          1.   The imported   merchandise   consists     of    12
     models of soft crates.

          2.   Soft crates are a subset           of   the    pet
     containment category of pet products.

          3.   The pet containment line of products also
     includes plastic crates and wire kennels.

           4.  Each of the 12 models of soft crates is
     comprised of a metal skeleton covered by a textile
     skin.

          5.   The   soft  crates   are  portable  products
     designed to transport a docile or crate-trained pet in
     the back of a sport utility vehicle (“SUV”).

          6.   The soft crates at issue are products
     designed to contain docile or crate-trained pets in the
     home, at a friend’s home, at the park, on camping
     trips, etc.

          7.   The soft crates at issue vary in size based
     on the size of animal they are designed to contain.
Court No. 07-00097                                       Page 4


          8.   The soft crates at issue range in size from
     those used to contain and transport 10 pound pets to
     those used to contain and transport 70 pound pets.

          9.   All models of the soft crates at issue are
     designed to protect a docile or crate-trained pet in
     the car by keeping them contained in the back of the
     vehicle, and preventing them from impeding the driver.

          10. All models of the soft crates at issue
     protect docile or crate-trained pets from the sun when
     used out[]doors.

          11. All models of the soft crate at issue offer
     docile or crate trained pets protection from running
     away and/or getting lost when used at the park,
     camping, or anywhere outdoors.

          12. All models of the soft crates at issue are
     designed to be portable.

          13. All models of the soft crates at issue are
     designed to prevent unwanted behavior such as jumping
     on visitors by confining the pets.

          14. The soft crates at issue are designed to
     contain a docile or crate-trained pet for reasonable
     lengths of time.

           15. The soft crates at issue are designed to
     contain a docile or crate-trained pet in the home, thus
     preventing the pet from damaging furnishings in the
     home.

          16. The soft crates are designed to contain
     trained pets until such time as their owners let them
     out.

          17. The soft crates at issue offer certain levels
     of protection for pets placed inside of them.

          18. Soft crates are a product designed to contain
     docile pets.
Court No. 07-00097                                         Page 5


          19. All models of the soft crate at issue are
     designed to keep docile or crate-trained pets in their
     proper place both in and out of the home, including
     during transport in an SUV.

The defendant proffers support for each of these representations,

the citations to which have been omitted in the interest of

brevity.


           Plaintiff’s written response to the foregoing admits 1,

2, 3, 4, 7, 10, 12, 13, and 17.    Its crafted reply to the other

averments is:


          5.   Denies. Plaintiff avers that the soft crates
     have no design features or characteristics making them
     suitable for transporting pets.

          6.   Denies that soft crates are products only
     designed to contain docile or crate-trained pets in the
     home, at a friend’s home, at the park, or on camping
     trips. Admits that soft crates provide a den-like home
     for dogs in those settings.

          8.   Denies that soft crates transport or contain
     pets while they are housed and in use.      Admits that
     soft crates range in size from those used to house 10
     pound pets to those used to house 70 pound pets. . . .
     Plaintiff   avers  that   the   pound  measurement   is
     irrelevant and intended only as an approximation of
     physical size.

          9.   Denies that soft crates were designed to
     protect pets by keeping them contained in the back of a
     vehicle. Admits that soft crates may occasionally be
     used to provide home environments for pets and to
     prevent crate-trained pets from distracting the driver
     of a motor vehicle.
Court No. 07-00097                                                Page 6


          11. Denies.    Plaintiff avers that the level of
     protection provided by soft crates is not meaningful.

           14. Denies. Plaintiff avers that the soft crates
     are designed to house pets for a reasonable length of
     time.

          15. Denies. Plaintiff avers that the soft crates
     provide an indoor home environment for the docile or
     crate-trained dogs.    . . . Because dogs cannot be
     permanently contained, the soft crates do not protect
     home furnishings.

          16. Denies that soft crates are designed to
     contain trained pets until such time as their owners
     let them out. Admits that soft crates are designed to
     house pets for as long as they like to be housed.

          18. Denies. Plaintiff avers that the soft crates
     are de[s]igned to house docile pets.

           19. Denies that soft crates have any design
     features adapting them to use in any vehicle. . . .
     Denies that the soft crates are designed to keep docile
     pets in their proper place at home or during transport
     in an SUV.    Admits that soft crates are designed to
     provide den-like homes for pets both in and out of the
     home.

Citations omitted.


             In   support   of   its   own   cross-motion   for   summary

judgment, the plaintiff has filed a Rule 56(h) Statement of

Material Facts to Which No Genuine Dispute Exists, which the

defendant correctly points out is not in keeping with the letter

or the spirit of the rule, given its 21 pages and 178 individual

averments.    To sift out some of them:
Court No. 07-00097                                        Page 7


          10. Soft crates were created to fill a need in
     the pet industry for soft-sided temporary pet homes.

          11. Based on its own market research in 2001,
     Firstrax determined that there was a need for a
     hospitable and aesthetic alternative to rigid wire
     crates or plastic carriers.

          12. The marketing target of Firstrax was to
     create a niche market for docile or crate-trained pets,
     in particular dogs, to have a soft-sided crate that
     provides a “den” or “cave-like” environment.

          13. The soft crates were designed to have
     furniture and a home decor aesthetic, rather than a
     harsh wire or molded plastic aesthetic.

          20. The soft crates are constructed of nylon
     fabric stretched over a cube made of tubular steel.

          21. The steel structure consists of a top and
     bottom rectangular tube structure connected at each of
     the four corners by four vertical poles.

          22. The steel structure is designed to be
     collapsed or set up in one movement, without the use of
     tools.

          23. The    initial   design  innovation involved
     creating a slide and snap locking mechanism on the
     tubular structure for easy set up, which also folds
     flat for easy movement and storage.

          24. The tubular structure supports only the edges
     of the cube: the top, sides and bottom of the soft
     crates consist solely of nylon fabric.

          25.   The sides and doors of the crates have mesh
     windows.

          26. The doors and entry points have a zip closure
     that is designed to be rolled up and secured with a
     strap to allow the door to remain open if desired.
Court No. 07-00097                                       Page 8


          28. During the production process, the strength
     of the inner steel tubular structure was tested
     informally by having a 100-pound employee stand on the
     steel structure only.

          29. The main concern of the testing was to see if
     the steel tubular structure would warp under too much
     weight, resulting in the inability for the mounting
     mechanism to function properly.

          30. There were no tests conducted regarding the
     weight that the crate would carry, as this was not the
     intended purpose of the soft crates.

          36. Soft crates are designed to rest on a solid
     surface, such as the floor or ground, which provides
     the needed support so that the weight of the pet does
     not cause the bottom of the crate to buckle or tear.

          37. The strength of the bottom and side panels
     was not tested during the design or production stage
     because the bottom panel was never designed to resist
     or carry weight.

          38. Some models of the soft crates have fabric
     tabs with grommets to allow the crates to be staked
     into the ground for outdoor use.

          39. The soft crates were initially designed to be
     a portable area for pets, similar to playpens, which
     are designed to provide a comfortable environment for
     children either in their own homes or at travel
     destinations, but not to carry or transport children.

          42. For the smaller models, handles were placed
     on the top of the models to aid in moving the empty
     soft crates from place to place without having to
     collapse it.

          43. The smaller models were not designed to be
     moved with the pets inside them because there is no
     rigid bottom on the soft crate to support the pet
     during transport.
Court No. 07-00097                                          Page 9


          44. None of the soft crate models were [sic]
     tested to see if they could accommodate the weight
     listed, because they were not designed to be weight-
     bearing crates.

          45. The    soft   crates   were   designed   to   be
     stationary homes.

          46. For larger models, handles were placed along
     the bottom of the side panel, so the empty crate could
     be folded flat and carried from place to place when
     collapsed, much like an architect’s portfolio.

          52. The soft crates were not designed to
     duplicate the function of pet carriers, because of the
     lack of rigid bottom and awkwardness in carrying.

          74. The soft crates are used by the pet to allow
     it to take a break and to provide the pet with [a]
     preferred place to sleep at night.

          86. The soft crates, if properly used, . . . are
     portable pet homes for dogs that have been trained to
     accept them as their den or home.

          93. Soft crates can not replace a [wire or
     plastic] kennel if the intent of the pet owner is to
     securely contain a dog or animal.

          98. The fabric used for the soft crates is not
     waterproof, nor is it insulated.

          99. The top and sides of the soft crates do not
     have the capacity of protecting a pet inside from cold,
     rain or snow.

          100. If   they  are   used  outside,   they  are
     appropriate for use in late spring and summer in most
     climates.

          108. The soft crate does not provide the security
     normally associated with wire kennels or plastic
     crates.
Court No. 07-00097                                          Page 10


          111. In contrast to the wire crates and plastic
     carriers that already existed in the market, the soft
     crates were designed to have rounded corners so that
     they would fit in the home environment without damaging
     floors or car seats when the empty crate was being
     moved about.

          117. . . . [T]he fabric shell and mesh windows can
     be torn by any pet improperly confined in a soft crate.

          118. Improper confinement means using     the   soft
     crate as a kennel and not as a pet home.

          121. In contrast to rigid plastic, wood, or metal
     kennels that were designed for the secure containment
     of pets, the zipper and latch of a soft crate will not
     prevent a dog from easily escaping a soft crate by
     ripping through the fabric.

           122. Soft crates were not designed with structural
     or weight bearing requirements that would enable the
     soft crates to be used for the purpose of transporting
     pets.

          123. The soft crates do not meet the IATA airline
     transport safety standards for either domestic or
     international flight.

           125. Soft [c]rates are not small enough to fit
     under the seat; they are not sturdy enough for cargo
     area.

          127. The purpose of pet carriers is to safely and
     securely transport an animal.

          128. Pet carriers are usually constructed of “high
     impact molded plastic.”

          129. Pet   [c]arriers  have   1)  the   structural
     integrity to withstand transit while protecting the
     animal inside; 2) secure locking mechanisms to prevent
     escape; 3) rigid floor construction that allows the
     animal to stand when the carrier is either carried, or
     placed on an uneven surface; and 4) non-absorbent, leak
Court No. 07-00097                                        Page 11


     proof floor material that will contain small amounts of
     urine to protect surfaces the carrier is place[d] on[.]

          135. For soft crates, water and urine spills will
     soak into the bottom, making it unsuitable for the
     transport or containment of pets over any extended
     period of time.

          136. Any carrier intended by design as suitable
     for airline use must comply with U.S. domestic and IATA
     international standards for both cargo and in-cabin
     transport.

          140. Carriers and kennels must have a rigid bottom
     and a stable base that is integral to the unit, which,
     unlike the soft crates, do not rely on the ground or
     floor to support the animal inside.

          141. Pet carriers or kennels used for the
     transport of pets constructed of steel wire or rigid
     plastic are strong enough to reasonably prevent even
     untrained pets from escaping.

          143. In the event that a soft crate is used in a
     motor vehicle, the crate should be first put in the
     vehicle, and the pet then placed in the crate.

          144. The purpose of using a soft crate in a motor
     vehicle is to provide the pet with a comfortable home
     environment rather than to provide the pet safe and
     secure transport.

          145. . . . [T]he design features of the soft crate
     are not intended to make them a safe means of
     transporting pets in a moving motor vehicle.

          148. Soft crates do not have loops incorporated
     into their structure that would allow the crates to be
     strapped in using seat belts.

          149. Use in a motor vehicle is strictly        for
     docile, crate-trained dogs to provide a safe        and
     anxiety free environment for a traveling pet.
Court No. 07-00097                                        Page 12


          155. In contrast to the soft crates, pet carriers
     designed for use in motor vehicles include features
     such as tie-down strap holes molded into the rigid
     plastic of the carrier body, or have molded clips which
     can secure the pet carrier with a seat belt or other
     tie down strap.

          156. Pet carriers are sized to limit the pet’s
     ability to move around while . . . inside . . . so that
     the pet is encouraged to lie down.

          157. The lack of extra space helps to protect the
     pet during a sudden severe driving maneuver or crash.

          158. Neither the steel frame nor the soft crate
     nylon cloth exterior were designed to withstand impacts
     likely to “result from a vehicle crash, sever[e]
     maneuver, or from other stationary or loose objects in
     a vehicle that could damage the soft crate and the pet
     inside under crash conditions.”

          163. The locking system of the tubular structure
     could collapse if a pet were put inside the soft crate
     and the crate would be lifted or carried.

          164. In addition, the non-rigid fabric bottom
     would stretch with the weight of the pet inside when
     lifted up, with the potential for the pet to eventually
     fall through the bottom panel.

          165. For the smaller sized crates, the unsupported
     bottom panel would sag under the weight of the pet,
     causing the pet to be uncomfortable.

          166. The lack of a rigid bottom panel on the soft
     crates makes them unsuitable for transporting pets
     inside them.

          167. Although some of the smaller sizes originally
     had shoulder straps, it was determined that it was
     impractical to carry the crate in this manner, because
     its steel structure makes the carrier shift weight and
     lean over the crate to compensate for the awkward angle
     of the crate hanging from a shoulder strap.
Court No. 07-00097                                         Page 13


          168. The handles incorporated onto the top of   the
     smaller crates were intended to allow consumers      the
     option of moving the soft crate around without the   pet
     inside, without having to collapse the crate         and
     reassemble it at the destination.

          169. There are no handles incorporated onto the
     larger crates, because of the impracticality of moving
     a large soft crate without first collapsing it.

          170. The soft crates do not provide any pockets
     for interior organization of the pets or their
     accessories, because they are designed to provide an
     enclosed space to house a pet.

          171. The soft crates are not designed to hold
     toys, cushions, or blankets. These items may be placed
     inside the crates, but they would have to be removed
     when the crate is folded for transport, because the
     crates fold completely flat.

          172. The soft crates of the type at issue in this
     case are not intended to serve as an organizer of pet
     toys, treats, bedding, etc.

          173. Dogs can and do escape from soft crates.

          174. It is not recommended, or even feasible in
     some cases, to leave a pet inside a soft crate for an
     extended period of time.

          175. Dogs would only stay in a soft crate for time
     periods that are reasonable based on the training that
     the dog has had.

          176. The length of time a pet could stay in a soft
     crate would depend on factors such as the time duration
     used during training, the health and age of the pet,
     and . . . feeding and watering requirements.


Citations omitted.
Court No. 07-00097                                                         Page 14


             Defendant’s     even-lengthier       Response     to   Plaintiff’s

Separate Statement of Undisputed Facts admits outright or in sum

and substance plaintiff’s foregoing paragraphs 13, 20, 21, 25,

26, 30, 38, 42, 43, 44, 46, 98, 100, 111, 123, 127, 136, 143,

145, 148, 149, 179, 171, 175, and 176.                  It either denies or

pleads lack of information sufficient to answer all of the other

averments of the plaintiff quoted above.


                                        II

             Whatever the precise disagreements between the parties

regarding      the   facts   herein,   their     cross-motions      for    summary

judgment are clearly well-founded.             That is, the court concludes

after consideration of the foregoing statements that there is no

genuine issue of material fact that requires trial within the

meaning   of    USCIT   Rule   56    and     teaching   of   Celotex      Corp.   v.

Catrett, 477 U.S. 317 (l986), and Anderson v. Liberty Lobby,

Inc., 477 U.S. 242 (1986), and their progeny.                  The dispute is

simply a matter of law, to wit, interpretation of provisions of

the HTSUS.


             Plaintiff’s merchandise at bar is not found therein eo

nomine, whereupon CBP defends its classification under heading

4202 via ejusdem generis.           In Avenues in Leather, Inc. v. United
Court No. 07-00097                                        Page 15


States, 423 F.3d 1326 (Fed.Cir. 2005), the court pointed out in

another classification case focusing on the very same heading

that

       ejusdem generis requires that, for any imported
       merchandise to fall with [its] scope . . ., the
       merchandise   must  possess  the   same  essential
       characteristics or purposes that unite the listed
       exemplars . . ..

423 F.3d at 1332, citing Sports Graphics, Inc. v. United States,

24 F.3d 1390, 1392 (Fed.Cir. 1994).

            However, a classification under the ejusdem
       generis principle “is inappropriate when an imported
       article has a specific and primary purpose that is
       inconsistent with that of the listed exemplars in a
       particular heading.”

Id., quoting Avenues in Leather, Inc. v. United States, 178 F.3d

1241, 1244 (Fed.Cir. 1999).    And the court of appeals proceeded

to point out that it had previously held that

       “the common characteristic or unifying purpose of the
       goods in heading 4202 consist[s] of ‘organizing,
       storing, protecting, and carrying various items.’”

Id., quoting Avenues in Leather, Inc. v. United States, 317 F.3d

1399, 1402 (Fed.Cir. 2003).


           Following this approach does not lead this court to

conclude that plaintiff’s port-a-crates land within the ambit of

HTSUS heading 4202.
Court No. 07-00097                                                   Page 16


                                       A

          To quote the paragon American lexicon, to “organize” is

to “arrange or constitute in interdependent parts, each having a

special function, act, office or relation with respect to the

whole”.   Webster’s New International Dictionary of the English

Language, Unabridged, p. 1719 (2d ed. 1934).              Defined another

way, organize means “to bring together or form as a whole or

combination,   as   for   a   common       objective.”   Funk   &   Wagnalls

Standard Dictionary of the English Language, p. 890 (int’l ed.

1963).

          In the context of heading 4202, organization implies

multiple items placed together in a single container.           See, e.g.,

Totes, Inc. v. United States, 18 CIT 919, 865 F.Supp. 867 (1994)

(automotive tools and supplies in tool cases), aff’d, 69 F.3d 495

(Fed.Cir. 1995); Len-Ron Mfg. Co. v. United States, 24 CIT 948,

118 F.Supp.2d 1266 (2000) (multiple cosmetics in cases therefor),

aff’d, 334 F.3d 1304 (Fed.Cir. 2003); Processed Plastic Co. v.

United States, 29 CIT 1129, 395 F.Supp.2d 1296 (2005)(children’s

toys in children’s backpacks), aff’d, 473 F.3d 1164 (Fed.Cir.

2006).

          The plaintiff is correct in pointing out that named

exemplars of heading 4202 are specifically designed to organize a
Court No. 07-00097                                                       Page 17


number of items.        Here, each port-a-crate is intended for only

one pet.      None is designed for more than a single animal.             Unlike

toiletry      bags,    for      example,    which      often    have    multiple

subcompartments, the crates are “soft-sided temporary doghouses”

“developed with only one compartment and intended to house only a

dog”.       Indeed, it is doubtful that anxious dogs (or cats) are

capable      of   “organization”1     in    such     goods,    unlike   the   way

toiletries or pairs of socks or pieces of jewelry or of cutlery

et cetera are.

                                        B

              To “store” is to keep or set aside for future use. See,

e.g., Webster’s Third New International Dictionary, Unabridged,

p. 2252 (1981).       Defendant’s preferred definition is:

        3.   To place or leave in a location (as a warehouse,
        library, or computer memory) for preservation or use
        later. As such a particular item’s ability to hold or
        contain something.

Defendant’s       Memorandum,    p.   10,   citing    Merriam-Webster     Online

Dictionary, http://merriam-webster.com/dictionary/store (2009).

____________________
       The court understands that “simply ‘containing’ items is
        1

at least a rudimentary form of ‘organization’”. Processed Plastic
Co. v. United States, 29 CIT 1129, 1142, 395 F.Supp.2d 1296, 1309
(2005). However, the test for classification is whether the
organizational ability is an essential characteristic of the
subject merchandise. See, e.g., Totes, Inc. v. United States, 18
CIT 919, 924, 865 F.Supp. 867, 872 (1994). The court cannot so
find here.
Court No. 07-00097                                                    Page 18


While containing and storing things are similar, they are not

equivalent.      Contain is defined as:

     1:   To keep within limits: hold back or hold down: as
           a:   RESTRAIN, CONTROL . . . SUPPRESS . . .
           b:   CHECK, HALT, WITHSTAND, STEM . . .
           c:   to confine (the enemy) to the immediate terrain
                or to a limited area: prevent (the enemy) from
                making a breakthrough . . ..

Webster’s Third New International Dictionary, Unabridged, pp.

490-91 (1981)(capitalization in original).           Whereas to “store” is

to put items and other inanimate objects aside for the future,

to “contain” can be to restrain or suppress animated things from

acting a certain way.


            In   this   case,    the   plaintiff   argues,    and   the   court

concurs, that, as a practical matter,

     soft crates do not have the ability to store dogs away
     for later use at the convenience of the owner. First,
     the dogs must be trained to accept the soft crate as
     its[sic] home. . . . Second, the soft crates provide no
     means of supplying food or water to dogs, nor do they
     have a mechanism for dealing with urine or solid waste.
     Therefore,   any   “containment”    function   is   only
     incidental to the dog[‘s] coming and going of its own
     volition.


Plaintiff’s      Response   to   Defendant’s   Motion,   p.    7    (citations

omitted).     The plaintiff, noting defendant’s attempt to equate
Court No. 07-00097                                                         Page 19


living, breathing dogs with inanimate objects like tools or beach

toys, states further:

     . . . Dogs are pets. They are members of the family,
     working partners, assistants to the disabled, and
     valuable show dogs.    Treating the[m] as items to be
     stored for later retrieval and use invokes images of
     the kind of cruel containment devices the soft crate
     was designed to replace in the home environment.      A
     more apt comparison is to children who may be placed in
     a corner or play pen, but would not be described as
     “stored” or “contained.”

Id. at 7.


            On their face, exemplars listed in heading 4202 store

and/or   contain     inanimate       objects    of     personal     property,     not

living, breathing animals.               They include, inter alia, tobacco

pouches, suitcases, handbags, wallets, toiletry bags, jewelry

boxes, purses, cigarette cases, cutlery cases, musical-instrument

cases,   camera     cases,      school     satchels,    and   gun    cases.      See

generally Totes, Inc. v. United States, supra.


            Port-a-crates on the other hand are not designed to

store living four-legged pets.             They are made of soft, permeable

materials   of    mesh    and     nylon,   capable     of   being   worn   or    torn

through.       Whatever     the    precise     structural     integrity     of    the

crates, they are not meant to warehouse their animate visitors.

Unlike   pet     carriers    made    of    rigid     materials,     such   as    hard
Court No. 07-00097                                                    Page 20


plastic, metal or wood, the soft crates do not comply with either

U.S. domestic or IATA international standards for either cargo or

in-cabin airline transport.


           Rather, a pet could, “if it chooses, chew and tear

through the crate at any time. . . .            The crate is only meant to

act as a home for a dog and is purposely not made to cage or

contain a dog.”    Plaintiff’s Response to Defendant’s Motion, p. 4

(citations omitted).

                                       C

           Nor    do    the     port-a-crates   provide    any    significant

protection, the third essential characteristic of the heading

4202 exemplars.        As set forth above, they are made of nylon and

mesh that are permeable to aggressive animal fangs and claws and

capable   of   being     torn    through.   They    do    not    provide   much

protection from weather elements, as they are not waterproof and

do not prevent leakage.           They are not airline safe; nor would

they protect a pet from being crushed in an automobile collision.

Rather, the port-a-crates are meant to be used in a home or other

stable setting to provide a den-like refuge for their occupants.

Any protection from the sun or minor impacts would be incidental,

and not their essential purpose.
Court No. 07-00097                                                 Page 21


                                   D

            The last defining characteristic of the heading 4202

exemplars is their ability to carry their intended contents,

which they will organize, store, and protect.         See, e.g., Totes,

Inc. v. United States and Processed Plastic Co. v. United States,

supra.     Here, the port-a-crates’ structure and nylon materials

prove they are not meant to hold and transport animals safely.

They

       are not designed or tested to withstand the weight of a
       dog when carried. The crates are designed to stand on
       a solid surface such as a floor.    Carrying the crate
       while   the  dog   is   housed  inside   is  not   only
       uncomfortable, . . . it is unsafe for the dog. . . .
       The crate bottoms are not reinforced or rigid and can
       buckle under the weight of the dog. . . .

Plaintiff’s   Response   to   Defendant’s   Motion,   p.   11   (citations

omitted).

            While the defendant correctly notes that “[t]here is no

weight or structural integrity requirement specified for heading

4202[]”2, the crates’ design and structure make them incapable of

desirable conveyance of their living contents.         Hence, the court

cannot find that plaintiff’s port-a-crates are pet carriers.

____________________
       Defendant’s Memorandum, p. 15, citing Processed Plastic
       2

Co. v. United States, 473 F.3d 1164, 1171 (Fed.Cir. 2006).
Court No. 07-00097                                              Page 22


                                   III

          In   view   of   the   foregoing,   defendant’s   motion   for

summary judgment cannot be granted.        As for plaintiff’s cross-

motion, at first blush, classification of the port-a-crates as

posited under HTSUS chapter 63 (Other Made Up Textile Articles

...) might seem anomalous, but the memorandum of law in support

thereof persuades this court that the motion should be granted

due to lack of an HTSUS subheading more correct than the basket

provided by 6307.90.9889.

          Judgment will enter accordingly.

Decided: New York, New York

         October 21, 2011



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