Slip Op. 11-84

UNITED STATES COURT OF INTERNATIONAL TRADE

______________________________

:

NATIONAL PRESTO INDUSTRIES, :

INC., :

: Before: Nicholas Tsoucalas,

Plaintiff, : Senior Judge

:

v. :

: 

UNITED STATES, :

: Court No. 07-00245

Defendant. :

______________________________:

[Granting Plaintiff’s Motion for Summary Judgment. Denying

Defendant’s Cross Motion for Summary Judgment.]

 Dated: July 18, 2011

Stein Shostak Shostak Pollack & O’Hara, LLP, (S. Richard

Shostak and Mandy A. Edwards), for National Presto Industries,

Inc., 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,

(Alexander J. Vanderweide); Office of the Assistant Chief Counsel,

International Trade Litigation, U.S. Customs and Border Protection,

Beth Brotman, Of Counsel, for United States, Defendant.

 OPINION

Tsoucalas, Senior Judge: Plaintiff, National Presto

Industries, Inc. (“Presto”) brings this action to contest the

classification of its merchandise under the Harmonized Tariff

Schedule of the United States (“HTSUS”) 8479 arguing that the goods
 Court No. 07-00245 Page 2

should be classified under HTSUS 8441. The United States Bureau of

Customs and Border Protection (the “Government” or “CBP”), however,

contends that the subject goods were correctly classified under

HTSUS 8479. This action is currently before the Court on cross

motions for summary judgment pursuant to Unites States Court of

International Trade (“USCIT”) Rule 56. Jurisdiction is pursuant to

28 U.S.C. § 1581(a) (2006). For the reasons set forth below, the

Court finds that no genuine issues of material fact remain and

Presto is entitled to judgment as a matter of law. 

BACKGROUND

The Subject Goods and Procedural History

The merchandise, a diaper making machine, was imported into

the United States on or about May 13, 2005 at Newark, NJ with Entry

No. 112-9650819-5. Statement of Material Facts as to Which the

Moving Party Contends There is No Genuine Issue to be Tried

(“Uncontested Facts”) at 1.1 Upon liquidation on July 7, 2006, CBP

classified the merchandise under HTSUS 8479.89.9897 which provides

as follows: 

8479 Machines and mechanical appliances having individual

functions, not specified or included elsewhere in this

1

 All references to Uncontested Facts are facts to which

both parties agree. 
 Court No. 07-00245 Page 3

chapter; parts thereof (con.): 

Other machines and mechanical appliances (con.):

***

8479.89 Other (con.):

***

8479.89.98 Other...............................2.5%

***

8479.89.9897 Other

In October, 2006 Presto filed a protest asserting that the

proper classification of the merchandise is HTSUS 8441.80.0000,

which provides:

8441 Other machinery for making up paper pulp,

paper or paperboard, including cutting

machines of all kinds, and parts thereof:

***

8441.80.0000 Other machinery ....................Free 

After their protest was denied on January 12, 2007, Presto

filed a timely summons and complaint. All liquidated duties,

charges and exactions for the subject entry were paid prior to the

commencement of this action. See Uncontested Facts at 2. 
 Court No. 07-00245 Page 4

LEGAL STANDARD 

Pursuant to USCIT Rule 56, summary judgment is appropriate

when there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In classification

cases, summary judgment is appropriate when “there is no genuine

dispute as to the underlying factual issue of exactly what the

merchandise is.” Ero Indus., Inc. v. United States, 24 CIT 1175,

1179, 118 F. Supp. 2d 1356, 1359 (2000). 

The Court reviews classification cases de novo, pursuant to 28

U.S.C. § 2640(a). It is ultimately the Court’s duty to determine

the correct classification. See Jarvis Clark Co. v. United States,

733 F.2d 873, 876 (Fed. Cir. 1984). In order to do so, the Court

applies a two-step analysis whereby it (1) ascertains the proper

meaning of the specific terms in the tariff provisions; and then

(2) determines whether the merchandise comes within the description

of such terms as construed. See Global Sourcing Group v. United

States, 33 CIT __, __, 611 F. Supp. 2d 1367, 1371 (2009); Pillowtex

Corp. v. United States, 171 F.3d 1370, 1373 (Fed. Cir. 1999). The

first step of the analysis is a question of law and the second is

a question of fact. See Pillowtex Corp., 171 F.3d at 1373.
 Court No. 07-00245 Page 5

“It is a general rule of statutory construction that where

Congress has clearly stated its intent in the language of a

statute, a court should not inquire further into the meaning of the

statute.” Id. “Absent contrary legislative intent, HTSUS terms

are construed according to their common and commercial meanings,

which are presumed to be the same.” Phototenetics, Inc. v. United

States, 33 CIT __, __, 659 F. Supp. 2d 1317, 1322 (2009) (quoting

Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir.

1989)). The Court may also rely on its “own understanding of the

terms used” and “consult lexicographic and scientific authorities,

dictionaries, and other reliable information sources.” 

Phototenetics, 33 CIT at __, 659 F. Supp. 2d at 1322 (quoting

Baxter Healthcare Corp. v. United States, 182 F.3d 1333, 1337–38

(Fed. Cir. 1999)). 

Here, the parties have agreed that the merchandise is an adult

diaper making machine, Model AT-300. See Uncontested Facts at 2.

Therefore, the only remaining question is the proper scope of the

relevant classification provisions of the HTSUS, which is a

question of law. Accordingly, a grant of summary judgment for

either side, based on the pleadings and supporting documents, is

appropriate.
 Court No. 07-00245 Page 6

ANALYSIS

A classification analysis utilizes the General Rules of

Interpretation (“GRI”) and commences with GRI 1. Len-Ron

Manufacturing Co., Inc. v. United States, 334 F. 3d 1304, 1308

(Fed. Cir. 2003). GRI 1 provides that classification shall be

“according to the terms of the headings and any relative section or

chapter notes . . . .” Gen. R. Interp. 1, HTSUS. As such, the

terms of the headings and any relative section or chapter notes are

paramount. This classification analysis necessarily begins by

examining the separate language of the headings of HTSUS 8441 and

HTSUS 8479 to determine whether the subject goods are prima facie

classified under either. 

Presto contends that the subject merchandise is classifiable

under HTSUS 8441 because it produces articles of paper pulp and

that the Government has previously determined that diapers are

classified as a paper pulp article. As such, relying on what the

diaper machine produces, Presto argues that HTSUS 8441 specifically

describes the subject merchandise. Presto also notes that HTSUS

8479 is a basket provision and since HTSUS 8441 more accurately

describes the subject merchandise, there is no reason to resort to

the basket provision. See Plaintiff’s Memorandum of Points and

Authorities in Support of Plaintiff’s Motion for Summary Judgment

at 7-8. 
 Court No. 07-00245 Page 7

The Government, however, contends that the classification of

the diapers should not determine the classification of the machine

itself. The Court agrees with Presto that there is utility in

scrutinizing what kind of articles the subject merchandise produces

because the heading of HTSUS 8441 specifically instructs the reader

to inquire. That provision identifies machinery falling under that

heading as machinery “for making up paper pulp, paper or paperboard

. . . .” HTSUS 8441. 

Moreover, the Explanatory Notes (“ENs”) of HTSUS 8441

specifically state that “[t]his heading covers all machinery used

for cutting, and . . . those for the manufacture of various made up

articles.” Explanatory Notes, Section XVI, Chapter 84.41. Since

the diapers could be “made up articles” within the meaning of this

EN, inquiry into whether or not these diapers are paper pulp

products is not unreasonable. 

Presto cites custom decisions where diapers were classified as

paper pulp products because it was the paper pulp which gave the

diapers their essential character despite their containing

materials other than paper pulp. “The role of the paper pulp, in

contrast to the other components, . . . is fundamental to the

functioning of the merchandise. . . . [T]he diaper/training pants

cannot function without the paper pulp.” HQ 965891 (Nov. 6, 2002). 
 Court No. 07-00245 Page 8

In addition, Presto also refers to the North American Industry

Classification System where disposable diapers are defined within

the paper manufacturing chapter stating that there are U.S.

industries who are “primarily engaged in converting purchased

sanitary paper stock . . . into sanitary paper products, such as .

. . disposable diapers . . . .” Executive Office of the President,

Office of Mgmt. & Budget, North American Industry Classification

System, United States, 2002 p. 293 (2002). 

Lastly, the ENs of HTSUS 8441 make clear that the machines

classified thereunder include machines for making up paper pulp for

“various made up articles.” Explanatory Notes, Section XVI,

Chapter 84.41. “Although the ENs are not legally binding or

dispositive, they may be consulted for guidance and are generally

indicative of the proper interpretation of the various HTSUS

provisions.” Avenues In Leather, Inc. v. United States, 423 F.3d

1326, 1334 (Fed. Cir 2005). It is appropriate to rely on this EN,

especially since the text is unambiguous and there are no

persuasive reasons to disregard it. Drygel, Inc. v. United States,

541 F.3d 1129, 1134 (Fed. Cir. 2008). Since the subject

merchandise produces articles made up of paper pulp, it follows

that the subject merchandise is prima facie classifiable under

HTSUS 8441.80.0000. 
 Court No. 07-00245 Page 9

The Government contends the subject merchandise is more aptly

classified under HTSUS 8479 because no other heading covers it by

reference. They suggest that paper pulp is only part of the diaper

composition and, therefore, not controlling of the subject

merchandise’ classification. In support of its position, the

Government cites a 1995 customs ruling on the classification of a

sanitary napkin making machine which classified the merchandise

under HTSUS 8479.89.95. For the following reasons, that ruling is

not applicable here. First, the ruling summarily dismisses,

without any legal analysis, the prima facie classification of the

merchandise under HTSUS stating that “machines which make up

plastic and nonwovens, in addition to pulp, paper or paperboard,

are not classifiable under heading 8441, HTSUS.” HQ 957161 (April

24, 1995). Second, the ruling ignores the fact that HTSUS 8441

specifically requires an inquiry into the type of product being

manufactured. Third, unlike here where the parties agree that the

principal function of the subject merchandise is to produce adult

diapers, this ruling stated “[they] are unable to determine the

function which is considered the principal function of the

machine.” Id. Lastly, the ENs to HTSUS 8479 require 

classification therein be limited to merchandise which can’t be

classified under any other heading which references their use,

their method of functioning or the industry in which it operates. 

See Explanatory Notes, Section XVI, Chapter 84.79. That is not the
 Court No. 07-00245 Page 10

case herein where HTSUS 8441 does reference use and the industry in

which it is employed. 

HTSUS 8441.80.0000 more specifically provides for the subject

merchandise classification than the basket provision of HTSUS

8479.89.9897. The Government’s position does not take into account

that: “A machine which is used for more than one purpose is, for

the purposes of classification, to be treated as if its principal

purpose were its sole purpose.” HTSUS, Chapter 84, Note 7; see

also Fuji America Corp. v. United States, 519 F.3d 1355, 1358 (Fed.

Cir. 2008). 

Since both parties agree that the product produced by the

subject merchandise is an adult diaper and diapers have been

consistently found to be paper pulp products, it follows that the

subject merchandise, which makes this article, is other machinery

for the “manufacture of various made up articles.” As such, under

a GRI 1 analysis, the subject merchandise is prima facie

classifiable under HTSUS 8441.80.0000. The Government’s contention

that the subject merchandise should be classified under the basket

provision of HTSUS 8479.89.9897 is not persuasive. Those

provisions are “intended as a broad catch-all to encompass the

classification of articles for which there is no more specifically

applicable subheading.” EM Industries, Inc. v. United States, 22
 Court No. 07-00245 Page 11

CIT 156, 165, 999 F. Supp. 1473, 1480 (1998). HTSUS 8479,

specifically states that merchandise can only be classified within

that basket provision if “not specified or included elsewhere in

this chapter.” Since the subject merchandise is prima facie

classifiable under HTSUS 8441, it cannot be simultaneously

classifiable under HTSUS 8479.

CONCLUSION

Therefore, HTSUS 8441.80.0000 prevails over HTSUS 8479.89.9897

and is the appropriate classification for the subject goods. For

the foregoing reasons, Presto’s Motion for Summary Judgment is

granted and the Government’s Cross Motion for Summary Judgment is

denied. The merchandise at issue is properly classified under

HTSUS 8441.80.0000. Judgment will be entered accordingly.

 /s/ Nicholas Tsoucalas 

NICHOLAS TSOUCALAS 

 SENIOR JUDGE 

Dated: July 18, 2011

New York, New York