Slip-Op 07-111 [pub].pdfOrder for slip op 07-111.pdfSlip Op. 07-111UNITED STATES COURT OF INTERNATIONAL TRADE :WHIRLPOOL CORPORATION, ::Plaintiff, :: Before: WALLACH, Judgev. : Court No.: 03-00526:UNITED STATES, : PUBLIC VERSION:Defendant. : :[Plaintiff’s Motion for Summary Judgment is DENIED and Defendant’s Motion for SummaryJudgment is GRANTED.]Dated: July 18, 2007Baker & McKenzie LLP, (Lynn S. Preece, Bart M. McMillan and Louisa V. Carney) for PlaintiffWhirlpool Corporation.Peter D. Keisler, Assistant Attorney General; Barbara S. Williams, Attorney in Charge,International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Departmentof Justice (Bruce N. Stratvert); and Chi S. Choy, Office of Assistant Chief Counsel, U.S.Customs and Border Protection, of Counsel; for Defendant United States.OPINIONWallach, Judge:IINTRODUCTIONPlaintiff Whirlpool Corporation (“Whirlpool”) challenges the decision of the UnitedStates Customs and Border Protection (“Customs”) to classify its imported merchandise (entrynumber 327-0126404-9) under Heading 9032 of the Harmonized Tariff Schedule of the UnitedStates (“HTSUS”) 1999 as an “[a]utomatic regulating or controlling instrument[ ] and apparatus”This rate represents the Column 1 general rate for HTSUS Subheading 9032.89.60 in1effect at the time of entry in 1999. Plaintiff alleges that the imported merchandise also contained “terminals and2connectors,” but the Government denies this. This discrepancy is not material to the court’sdecision, however. HTSUS Heading 9032 and subheading 9032.89.60 provide for:39032 Automatic regulating or controlling instruments and2at a duty rate of 1.7% ad valorem. This court has jurisdiction pursuant to 28 U.S.C. § 1581(a),1and jurisdiction is uncontested by the parties. Because the subject merchandise is classifiedunder an eo nomine designation as an automatically controlling apparatus in HTSUS Heading9032, Customs’ classification of the refrigerator control box subassembly in subheading9032.89.60 was proper. Accordingly, Plaintiff’s Motion for Summary Judgment is Denied andDefendant’s Motion for Summary Judgment is Granted.IIBACKGROUNDPlaintiff Whirlpool is the importer of record for entry number 327-0126404-9, consistingof refrigerator control box subassemblies-1 knob, identified as part number 2204604. AmendedComplaint (“Complaint”) ¶ 2; Answer to Amended Complaint (“Answer”) ¶ 2; CompositeStatement of Uncontested Facts ¶ 8. The subject merchandise was exported from Mexico byWhirlpool de Reynosa, S.A. de C.V., and entered the United States through the port of Hidalgo,Texas on March 30, 1999. In its imported condition the merchandise consisted of a thermostat,defrost timer, light socket, and wire harness, all of which were contained inside a plastichousing. Complaint ¶ 2-3, 5; Answer ¶ 2-3, 5. Customs classified part number 2204604 under2HTSUS Subheading 9032.89.60 and liquidated on March 8, 2002, assessing duties at the rate of3apparatus; parts and accessories thereof:* * *9032.89.60 Other...............................1.7% Free (MX) Protest number 2304-02-100182.4 HTSUS Heading 8537 and subheading 8537.10.90 provide for:58537 Boards, panels, consoles, desks, cabinets and otherbases, equipped with two or more apparatus ofheading 8535 or 8536, for electric control or thedistribution of electricity, including thoseincorporating instruments or apparatus of chapter90, and numerical control apparatus, other thanswitching apparatus of heading 8517:8537.10 For a voltage not exceeding 1,000 V:8537.10.90 Other...............................Free (MX) HTSUS Heading 8418 and subheading 8418.99.80 provide for:68418 Refrigerators, freezers and other refrigerating or31.7% ad valorem and disallowed duty-free treatment under the North American Free TradeAgreement (“NAFTA”). Complaint ¶ 6-8; Answer ¶ 6-8. Plaintiff timely paid all additionalduties and fees assessed on liquidation, and on June 5, 2002, filed a protest against Customs’classification and liquidation decision and its denial of NAFTA benefits for the entry. Complaint4¶ 9, 10; Answer ¶ 9, 10. Customs denied the protest on February 13, 2003, and Plaintiff timelyfiled a summons with this court on July 30, 2003. Whirlpool argues that the subject merchandisewas improperly classified in HTSUS subheading 9032.89.60, and should instead have beenclassified in HTSUS subheading 8537.10.90, or alternatively in HTSUS subheading58418.99.80. Complaint ¶ 13, 15, 23. Both parties submitted motions for summary judgment6freezing equipment, electric or other; heat pumps,other than the air conditioning machines of heading8415; parts thereof:* * *8418.99.80 Other................................Free4before this court. Oral Argument on those motions was held on April 3, 2007.IIISTANDARD OF REVIEWA motion for summary judgment is granted when “the pleadings, depositions, answers tointerrogatories, and admissions on file, together with the affidavits, if any, show that there is nogenuine issue as to any material fact and that the moving party is entitled to a judgment as amatter of law.” USCIT R. 56(c). In classification cases, “the proper classification under which[an article] falls . . . has always been treated as a question of law,” thus, summary judgment willbe appropriate when there is no underlying factual issue regarding the nature of the merchandiseremaining in dispute. Bausch & Lomb Inc. v. United States, 148 F.3d 1363, 1366 (Fed. Cir.1998). The court reviews classification cases de novo in accordance with 28 U.S.C. § 2640(a). When deciding classification cases, the court employs a two step analysis in which the first step“concerns the proper meaning of the tariff provisions at hand,” and the second step “concernswhether the subject imports properly fall within the scope of the possible headings.” UniversalElecs. Inc. v. United States, 112 F.3d 488, 491 (Fed. Cir. 1997). Additionally, the factualdeterminations made by the agency are presumed to be correct, therefore “the party challengingthe classification . . . bears the burden of proof.” Totes, Inc. v. United States, 69 F3d 495, 498As part number 2204604 is classifiable using GRI 1, discussion of subsequent GRIs has7been omitted.5(Fed. Cir. 1995) (citing 28 U.S.C. § 2639(a)(1)).IVDISCUSSIONThe HTSUS General Rules of Interpretation
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