                                    Slip Op. 13-36

               UNITED STATES COURT OF INTERNATIONAL TRADE


 LINK SNACKS, INC.,

                    Plaintiff,
                                                     Before: Leo M. Gordon, Judge
       v.
                                                     Consol. Court No. 09-00304
 UNITED STATES,

                    Defendant.


                                       OPINION

[Summary judgment denied for Plaintiff; summary judgment granted for Defendant.]

                                                                 Dated: March 20, 2013

       Lizbeth R. Levinson and Ronald M. Wisla, Kutak Rock LLP, of Washington, DC,
for Plaintiff Link Snacks, Inc.

       Alexander J. Vanderweide, Trial Attorney, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, of New York, NY, for Defendant United States.
With him on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General,
Barbara S. Williams, Attorney-in-Charge. Of Counsel was Sheryl French, Office of
Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border
Protection, of New York, NY.


      Gordon, Judge: This case is before the court on cross-motions for summary

judgment. See Pl.’s Mot. for Summ. J., ECF No. 41 (“Pl.’s Br.”); Def.’s Cross-Mot. for

Summ. J. and Resp. to Pl.’s Mot. for Summ. J., ECF No. 46. Plaintiff Link Snacks, Inc.

(“Link Snacks”), challenges the decision of Defendant U.S. Customs and Border

Protection ("Customs") denying Link Snacks’ protests of Customs’ classification of the

imported beef jerky within the Harmonized Tariff Schedule of the United States

("HTSUS").    Customs classified the merchandise as "[c]ured or pickled" under
Consol. Court No 09-00304                                                        Page 2


subheading 1602.50.09 of the HTSUS, which carries a 4.5% duty rate. Plaintiff claims

that the merchandise is properly classified as "[o]ther" under subheading 1602.50.2040

of the HTSUS, which carries a 1.4% duty rate. The court has jurisdiction pursuant to

28 U.S.C. § 1581(a) (2006). For the reasons set forth below, Defendant’s motion for

summary judgment is granted, and Plaintiff’s motion is denied.

                                  I. Undisputed Facts

      The following facts are not in dispute. See Joint Statement of Undisputed Facts,

ECF No. 60 (“Undisputed Facts”). Jacks Links New Zealand, a related company in New

Zealand, manufactured the subject beef jerky products that were imported at the Port of

Long Beach in Court No. 09-00304. Ferreira International, LTDA, a related company in

Brazil, manufactured the subject beef jerky products that were imported at the Ports of

JFK and Long Beach in Court No. 09-00464. The subject beef jerky consists of sliced,

cooked, cured, and dried meat seasoned with salt and other spices and flavors. The

subject beef jerky products do not contain cereal or vegetables.

      To process and manufacture the beef jerky at issue, the following steps are taken.

First, boneless beef is purchased from a Brazilian USDA approved meat supplier (takes

1 minute to 2 days, depending on negotiations). Next, the boneless beef is inspected

by Quality Control for wholesomeness upon receiving it (30 minutes per delivered load).

The boneless beef is then sliced (4 to 5 hours per 20,000 pounds). It is then placed into

a sanitary stainless steel vacuum tumbler for 20 minutes. Seasoning, sodium nitrite,

and water are then added to the vacuum tumbler (5 minutes).          The meat and the

ingredients are then tumbled under vacuum for 8 to 15 minutes. The meat is then
Consol. Court No 09-00304                                                           Page 3


allowed to cure for 24 to 48 hours.      Subsequently, the meat is placed on sanitary

stainless steel hanging rods (4 to 5 hours per 20,000 pounds).             The meat, still

containing the rods, is then placed on stainless steel smokehouse trucks (4 to 5 hours

per 20,000 pounds). The smokehouse trucks are then placed in sanitary stainless steel

smokehouses (20 minutes to load 1 house). The product is then cooked with smoke

cycle and smoked until all the USDA Appendix A requirements are met (3 to 6 hours).

The product is then removed from the smokehouse and cooled (30 to 60 minutes). The

cooled product is removed from the stainless steel rods and placed into USDA

approved sanitary containers (6 hours per 10,000lbs).

       The cooked jerky is then placed into a protective liner bag (6 hours per

10,000lbs). The protective liner bag is placed into a barrier plastic bag (6 hours per

10,000lbs). Oxygen scavengers are then placed into the barrier bag, most of the air is

removed, and the bag is hermetically sealed (6 hours per 10,000 lbs). 1                   The

hermetically sealed bag is placed into a cardboard shipping container with all the

pertinent Brazilian and USDA required labels (6 hours per 10,000 lbs). The boxed jerky

is then placed into 20 or 40 foot shipping containers (30 minutes to 1 hour). Thereafter,

the shipping containers go to the export port (3 to 5 hour drive depending on traffic).

       The imported beef jerky is shelf-stable for 18-20 months. The parties agree that

the subject beef jerky is classified under subheading 1602.50, HTSUS, as “Other

prepared or preserved meat, meat offal or blood: Of bovine animals.”


1
  For purposes of this litigation only, the Government does not contest whether the
imported merchandise is in airtight containers.
Consol. Court No 09-00304                                                         Page 4


                                 II. Standard of Review

      The court reviews Customs' protest decisions de novo. 28 U.S.C. § 2640(a)(1).

USCIT Rule 56 permits summary judgment when “there is no genuine issue as to any

material fact . . . .” USCIT R. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247 (1986). In considering whether material facts are in dispute, the evidence

must be considered in a light most favorable to the non-moving party, drawing all

reasonable inferences in its favor, as well as all doubts over factual issues.       See

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Anderson, 477 U.S. at 261 n.2.

      A classification decision involves two steps. The first step addresses the proper

meaning of the relevant tariff provisions, which is a question of law. See Faus Group,

Inc. v. United States, 581 F.3d 1369, 1371-72 (Fed. Cir. 2009) (citing Orlando Food

Corp. v. United States, 140 F.3d 1437, 1439 (Fed. Cir. 1998)).         The second step

involves determining whether the merchandise at issue falls within a particular tariff

provision as construed, which, when disputed, is a question of fact. Id.

      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 Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1378

(Fed. Cir. 1999); Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1365-66 (Fed.

Cir. 1998). This is such a case, and summary judgment is appropriate. See Bausch &

Lomb, 148 F.3d at 1365-66.

      While the court accords deference to Customs classification rulings relative to

their “power to persuade,” United States v. Mead Corp., 533 U.S. 218, 235 (2001)
Consol. Court No 09-00304                                                        Page 5


(citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)), the court has “an

independent responsibility to decide the legal issue of the proper meaning and scope of

HTSUS terms.” Warner-Lambert Co. v. United States, 407 F.3d 1207, 1209 (Fed. Cir.

2005) (citing Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1358 (Fed. Cir.

2001)).

                                    III. Discussion

      Classification disputes under the HTSUS are resolved by reference to the

General Rules of Interpretation (“GRIs”) and the Additional U.S. Rules of Interpretation.

See Carl Zeiss, 195 F.3d at 1379.      The GRIs are applied in numerical order.       Id.

Interpretation of the HTSUS begins with the language of the tariff headings,

subheadings, their section and chapter notes, and may also be aided by the

Explanatory Notes published by the World Customs Organization.           Id.   “GRI 1 is

paramount . . . 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).

      Pursuant to GRI 1, merchandise that is described “in whole by a single

classification heading or subheading” is classifiable under that heading.      CamelBak

Prods. LLC v. United States, 649 F. 3d 1361, 1364 (Fed. Cir. 2011). GRI 1 is applied as

a substantive rule of interpretation when an imported article is described in whole by a

single classification heading or subheading. If that single classification applies, the

succeeding GRIs are inoperative. Mita Copystar Am. v. United States, 160 F.3d 710,

712 (Fed. Cir. 1998). Here, GRI 1 resolves the classification of Link Snacks’ beef jerky,
Consol. Court No 09-00304                                                              Page 6


and the court, does not reach Link Snacks’ other arguments under subsequent GRIs.

See Pl’s Br. at 7-10; Pl.’s Supp. Legal Mem. at 6, ECF No. 66 (“Pl.’s Supp. Br.”).

       The court construes tariff terms according to their common and commercial

meanings, and may rely on both its own understanding of the term as well as upon

lexicographic and scientific authorities. See Len-Ron Mfg. Co. v. United States, 334

F.3d 1304, 1309 (Fed. Cir. 2003).          The court may also refer to the Harmonized

Description   and    Coding     System's    Explanatory     Notes    ("Explanatory    Notes")

"accompanying a tariff subheading, which--although not controlling--provide interpretive

guidance." E.T. Horn Co. v. United States, 367 F.3d 1326, 1329 (Fed. Cir. 2004) (citing

Len-Ron, 334 F.3d at 1309).

       The question before the court is whether Link Snacks’ beef jerky is properly

classified under HTSUS 1602.50.09 as “cured” prepared or preserved beef, or under

HTSUS 1602.50.2040 as “other” prepared or preserved beef.                 The common and

commercial meaning of “cured” is the addition of salt and nitrate/nitrite to meat. See

Andrew Milkowski Expert Report, Ex. 3, 8, ECF No. 41 (“. . . the modern definition of

curing involves the addition of nitrite. . . . “Two main ingredients must be used to cure

meat: salt and nitrate.”) (citing Hedrick, H. B., Aberle, E.D. Forreset, J.C. Judge, M.D.

Merkel, R.A. Principles of Meat Science. Dubuque: Kendall/Hunt Publishing Company,

1994, p.134.); Wedliny Domowe, Ex. H,           ECF No. 46 (“Curing is adding salt and

nitrates/nitrites to meat. If you use only salt it is called salting. If you use salt and water

it is called brining. The moment you add nitrates and salt to meat it is considered

curing.”); Dep. of Donald Thomas, Ex. G, 33, ECF No. 46 (“[A] classical meat science
Consol. Court No 09-00304                                                             Page 7


definition of curing is [the 24 to 48 hour period that Link Snacks’ beef was in a sodium

nitrite] solution.”). Link Snacks also concedes that its “beef jerky undergoes a curing

process in its initial stages of production.” Pl.’s Br. at 8; see also Undisputed Facts,

para. 3, 7 (“The subject beef jerky consists of . . . cured . . . meat . . . The meat is then

allowed to cure for 24 to 48 hours.”).

       This is enough for Defendant, which makes the simple, straightforward argument

that Link Snacks’ beef jerky must therefore be classified as “cured.” The court, for its

part, acknowledges the attractive simplicity to this classification of the subject

merchandise, one that is difficult to overcome. Link Snacks, nevertheless, offers a

creditable attempt by focusing on the common and commercial meaning of “beef jerky,”

which it contends is much more than simply “cured” beef.

       Link Snacks argues that the further process of dehydration changes the cured

beef to a completely different product, beef jerky, and that it should therefore be

classified as “other” under HTSUS 1602.50.2040. It contends that Customs “seeks to

define beef jerky entirely by the fact that it is dipped in a curing solution, and to ignore

entirely the further processing that gives beef jerky its new identity as a finished article.”

Pl.’s Supp. Br. at 11. Link Snacks explains that beef jerky is dried beef that varies

greatly with “common cured processed meats such as ham, bacon and hot dogs . . . .”

Id. at 9-11 (“[T]he defining characteristic of beef jerky is its dried state.”).

       Plaintiff explains that unlike ham, bacon, and hot dogs, which are highly

perishable, beef jerky is not.      “Without refrigeration, these processed meats [ham,

bacon and hot dogs] would only last 1 to 2 days before spoiling and developing
Consol. Court No 09-00304                                                           Page 8


contaminants that could cause serious illness.” Id. at 9. In contrast, beef jerky can last

for months at room temperature and 12 months or longer if vacuum packaged. Id. at 10.

Further, beef jerky has a lower moisture to protein ratio (MPR) than the other identified

cured meats. Specifically, beef jerky has a 0.75 to 1 MPR, while cooked ham has a

3.75 to 1 MPR, and a typical hot dog or bologna product has a 5 to 1 MPR. Id. at 9-10.

Link Snacks explains that because water is added to those products to improve

palatability, it is common to visibly see volumes of water when opening the packaging of

these products, while water is indiscernible to the naked eye in beef jerky. Id. at 10.

       Next, Link Snacks relies on the U.S. Department of Agriculture’s (“USDA”) Food

Standards and Labeling Policy Book’s description of beef jerky to argue that it is not

“cured” meat. The USDA provides the following under “Jerky : [a]ll Jerky products must

have a MPR of 0.75:1 or less . . . Products may be cured or uncured, dried, and may be

smoked or unsmoked, air or oven dried.” Pl.’s Supp. Br. at 12 (citing Pl.’s Br. Ex. 5).

Therefore, Link Snacks argues that beef jerky cannot be “cured” beef because curing is

optional for beef jerky. Pl.’s Supp. Br. at 12. Link Snacks’ beef industry expert, Dr.

Andrew Milkowski, also explains that there are uncured commercial beef jerky products

sold in the United States, which he has personally purchased and examined. Id. His

review of the uncured beef jerky reveals that it has the “same range of salt, moisture

and water activity as the cured Jack Link’s[sic] representative product.”                 Id.

Dr. Milkowski states that the “water activity of all the samples satisfies the federal

requirements for a product that is labeled as a shelf stable product such as beef jerky.”

Id. Last, Link Snacks distinguishes beef jerky from cured meat by relying on the USDA
Consol. Court No 09-00304                                                            Page 9


regulation, 9 C.F.R. § 94.4, which prohibits the importation of cured or pickled products

from certain countries because of rinderpest or foot and mouth disease, yet allows

dehydrated products because they are preserved by a different process than cured beef.

Specifically, the regulation permits the importation of meats that have been “thoroughly

cured and fully dried. . . .” 9 C.F.R. § 94.4(a)(3)(i). Link Snacks contends that the

regulation “acknowledges by its very terms that “cured” and dried” are different

processes and the latter is not encompassed by the former . . . .” Pl.’s Supp. Br. at 13.

Therefore, Link Snacks argues that beef jerky, whose intrinsic quality is its dried state, is

a separate, distinct product from “cured” beef.

       These are strong arguments that beef jerky is a product defined more by its

dehydration than its curing. With that said, however, the court is not persuaded they are

sufficient to overcome the otherwise simple and straightforward HTSUS classification

for “cured” beef that depends not on dehydration processes or specific measures like

MPR, but instead on the more general characteristic of whether beef is “cured.”

Plaintiff’s beef jerky is cured. The HTSUS classification of “cured” beef encompasses

all sorts of beef products, and does not draw distinctions based upon MPR or

dehydration processes. The court is reluctant to impose such distinctions not found in

the HTSUS. Here, the “[c]ured” subheading, 1602.50.09, is an eo nomine provision that

“include[s] all forms of the named article,” even improved forms.” Carl Zeiss, 195 F.3d

at 1379. Therefore, although Plaintiff’s beef jerky may specifically be defined by a

preservative process of dehydration yielding a product with a relatively low MPR, that

beef jerky, nevertheless, remains “cured” within the meaning of the HTSUS.
Consol. Court No 09-00304                                                       Page 10


Accordingly, the court agrees with Customs that the correct classification of Plaintiff’s

beef jerky is under HTSUS 1602.50.09, “[c]ured” beef.

                                      III. Conclusion

      The court will therefore enter judgment denying Plaintiff’s motion for summary

judgment, and granting Defendant’s motion for summary judgment.



                                                          /s/ Leo M. Gordon
                                                        Judge Leo M. Gordon


Dated: March 20, 2013
       New York, New York
