Pomeroy Collection, Ltd. v. United States

Slip Op. 11-78

UNITED STATES COURT OF INTERNATIONAL TRADE

THE POMEROY COLLECTION, LTD.,
Before: Pogue, Chief Judge
Plaintiff,
Consol. Court No. 04-002901
v.

UNITED STATES,

Defendant.

OPINION

[Plaintiff’s motion for summary judgment is granted; Defendant’s
cross-motion for summary judgment is denied.]

Dated: July 6, 2011

Fitch, King, LLC (Peter J. Fitch) for Plaintiff.

Tony West, Assistant Attorney General; Barbara S. Williams,
Attorney in Charge, International Trade Field Office, Commercial
Litigation Branch, Civil Division, United States Department of Justice
(Beverly A. Farrell and Mikki Cottet) for Defendant.

Pogue, Chief Judge: This action is about the correct tariff

classification of two items of glass merchandise that Plaintiff, The

Pomeroy Collection, Ltd. (“Pomeroy” or “Plaintiff”), imported from

Mexico. The United States Customs and Border Protection (“Customs”)

classified both items of merchandise, under Heading 7013 of the

Harmonized Tariff Schedule of the United States (“HTSUS”), as

“[g]lassware of a kind used for . . . indoor decoration or similar

purposes,” with a 5, 10, or 12% ad valorem duty. Plaintiff claims

that the merchandise is properly classified, under Heading 9405, as

parts of lamps, which Plaintiff also imports. Parts of lamps,

classified under Heading 9405, are duty free when imported from

1
This action is consolidated with Court Nos. 05-00105 and 05-
00512.
Consol. Court No. 04-00290 Page 2

Mexico.

Before the court are cross-motions for summary judgment.2 The

court has jurisdiction pursuant to 28 U.S.C. § 1581(a)(2006).

As explained below, because there is no genuine dispute as to any

material fact, and because Plaintiff’s lamps could not function in

their intended manner without the glass merchandise at issue, that

merchandise is appropriately classified as parts of Plaintiff’s lamps.

Accordingly, the court grants Plaintiff’s motion.

BACKGROUND

At issue are 25 entries of Pomeroy’s glass merchandise,

identified as sku 804427, and two entries of another Pomeroy glass

product, identified as sku 807329.3 Sku 804427, an example of which is

the glass component of Plaintiff’s Exhibit 2, is a tall, somewhat

cylindrical, vase-shaped glass structure, open at the top and enclosed

at its bottom. Sku 807329, an example of which is Plaintiff’s Exhibit

3, is a similar glass structure that is slightly shorter than sku

804427.4 Customs classified each of these entries under HTSUS

2
See USCIT Rule 56.
3
The merchandise was imported through the port of Laredo, Texas.
The entry numbers, and corresponding protest numbers, for the
contested entries are listed within a schedule attached to Plaintiff’s
Motion for Summary Judgment, the contested entries appearing in bold.
Pl.’s Mot. for Summ. J. Schedule [1].
4
Attached to this opinion are black and white photocopies of two
of Plaintiff’s exhibits, depicting, respectively, sku 804427, as it
appears on the retail packaging of Pomeroy’s “Gondola Hurricane”
merchandise, Plaintiff’s Exhibit 2, and sku 807329, as it appears on
the retail packaging of Pomeroy’s “Cabernet Pillar Holders”
merchandise, Plaintiff’s Exhibit 4. The coloring of these exhibits is
not relevant to this case.
Consol. Court No. 04-00290 Page 3

Subheading 7013.99.50.5

Pomeroy protested Customs’ classifications, but its protests were

denied.6 After paying all required duties, charges and exactions on

the entries,7 Pomeroy brought this action, challenging the denial of

its protests.

As noted above, Plaintiff claims that both sku 804427 and sku

807329 are properly classified as parts of lamps, under HTSUS

9405.91.60.8 Plaintiff accordingly requests that the court direct

Customs to re-liquidate the contested entries, and refund the excess

duties collected, with lawful interest. Am. Compl. 6.

STANDARD OF REVIEW

Customs classification decisions are reviewed de novo. See

28 U.S.C. § 2640(a)(1); BASF Corp. v. United States, 30 CIT 227, 236,

427 F. Supp. 2d 1200, 1208 (2006), aff’d, 497 F.3d 1309 (Fed. Cir.

5
HTSUS Heading 7013 applies to “[g]lassware of a kind used for
table, kitchen, toilet, office, indoor decoration or similar purposes
. . . .” Subheading 99.50 of HTSUS heading 7013 applies to
merchandise other than that listed in prior subheadings under HTSUS
Heading 7013, that is “[v]alued over $0.30 but not over $3 each.”
6
Customs denied Pomeroy’s protests on February 17, 2004, March
16, 2004, August 23, 2004, and March 23, 2005. See Summons, Pomeroy
Collection, Ltd. v. United States, No. 04-00290 (filed July 14, 2004);
Summons, Pomeroy Collection, Ltd. v. United States, No. 05-00105
(filed Feb. 10, 2005); Summons, Pomeroy Collection, Ltd. v. United
States, No. 05-00512 (filed Sept. 13, 2005).
7
See Am. Compl. ¶ 2; Answer ¶ 2.
8
HTSUS Heading 9405 applies to “[l]amps and lighting fittings
including searchlights and spotlights and parts thereof, not elsewhere
specified or included; illuminated signs, illuminated nameplates and
the like, having a permanently fixed light source, and parts thereof
not elsewhere specified or included.” Subheading 91.60 of HTSUS
Heading 9405 applies to parts of glass other than globes and shades or
chimneys.
Consol. Court No. 04-00290 Page 4

2007). Following the familiar two-step analysis, see Pillowtex Corp.

v. Unites States, 171 F.3d 1370, 1373 (Fed. Cir. 1999) (citing Bausch

& Lomb, Inc. v. United States, 148 F.3d 1363, 1365 (Fed Cir. 1998)),

the court first ascertains the correct meaning of the relevant tariff

provisions and then determines the proper classification for the

merchandise at issue. Id. The first step presents a question of law,

Franklin v. United States, 289 F.3d 753, 757 (Fed. Cir. 2002), while

the second concerns issues of fact. Pillowtex Corp., 171 F.3d at 1373.

The court’s analysis of tariff classification provisions in the

HTSUS is governed by the General Rules of Interpretation (“GRI”),

which are applied in numerical order. Honda of Am. Mfs., Inc. v.

United States, 607 F.3d 771, 773 (Fed. Cir. 2010). In accordance with

GRI 1,

[The] court first construes the language of the heading, and
any section or chapter notes in question, to determine
whether the product at issue is classifiable under the
heading. Only after determining that a product is
classifiable under the heading should the court look to the
subheadings to find the correct classification for the
merchandise.

Orlando Food Corp. v. United States, 140 F.3d 1437, 1440 (Fed. Cir.

1998) (citing GRI 1).

Summary judgment is then appropriate where there are no genuine

issues of material fact with respect to the nature of the merchandise

in question, i.e., where determination of the proper classification is

a matter solely of correctly construing the meaning and scope of

particular tariff provisions. Intercontinental Marble Corp. v. United

States, 381 F.3d 1169, 1173 (Fed. Cir. 2004).
Consol. Court No. 04-00290 Page 5

DISCUSSION

If, as Plaintiff contends, sku 804427 and sku 807329 are

classifiable as parts of articles properly classified under Heading

9405, then this merchandise was incorrectly classified under Chapter

70 of the HTSUS, which includes Heading 7013. This is true because

Note 1(e) to Chapter 70 specifically exempts from all headings in that

Chapter any articles classifiable as parts of articles classified

under Heading 9405.9 For both sku 804427 and sku 807329, therefore,

the question before the court is whether each is classifiable as a

part of an article which is properly classified under Heading 9405 of

the HTSUS.

I. Legal Framework for Proper Classification as ‘Part’ of Another
Article

The appellate court has adopted two tests for determining whether

merchandise may be classified as a part of an article. The first is

when the article of which the merchandise in question is claimed to be

a part “could not function as such article” without the claimed part.

United States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 322, 324

(1933) (emphasis and citations omitted)10; see also Bauerhin Techs.

Ltd. P’ship v. United States, 110 F.3d 774, 778 (Fed. Cir. 1997)

(relying on this “oft-quoted passage” of Willoughby). Thus, for

9
HTSUS, Chapter 70, Note 1(e) (“[Chapter 70] does not cover: (e)
Lamps or lighting fittings, illuminated signs, illuminated name-plates
or the like, having a permanently fixed light source, or parts
thereof[,] of heading 9405.”).
10
See also id. at 326 (merchandise is legally a part of another
article if that article is “not capable of the use for which it was
intended” without the merchandise in question).
Consol. Court No. 04-00290 Page 6

example, a lens that allows a camera to take colored photos is

properly a part of such cameras – without such lens, “cameras could

not perform one of their proper functions - the taking of colored

pictures,” Willoughby, 21 C.C.P.A. at 326-27.

The second test by which a piece of merchandise may qualify as a

part of another article is if, when imported, the claimed part is

“dedicated solely for use” in such article and, “when applied to that

use,” the claimed part meets the Willoughby test. United States v.

Pompeo, 43 C.C.P.A. 9, 14 (1955).11 The example here is a supercharger

that may be installed in a car engine – although both the car engine

and the supercharger are complete in themselves, the supercharger is

dedicated solely for supercharging the car engine, and, when applied

to that use – i.e., when the article being considered is not just a

car engine, but a supercharged car engine – the supercharged car

engine cannot function without the supercharger, and so the Willoughby

test is met. See id. at 13-14.

With this legal framework in mind, the court will consider each

of the items at issue here.

II. Sku 804427

Plaintiff argues that sku 804427 should be classified as part of

an article which is properly classified under Heading 9405 because sku

804427 was specifically designed to serve as the container for

Pomeroy’s Gondola Botanical Hurricane, Pl.’s Ex. 2, and the latter

11
See also Bauerhin, 110 F.3d at 779 (“[Willoughby and Pompeo]
must be read together. [. . .] Willoughby [] does not address the
situation where an imported item is dedicated solely for use with an
article. Pompeo addresses that scenario and states that such an item
can also be classified as a part.”).
Consol. Court No. 04-00290 Page 7

could not function as intended without sku 804427. Pl.’s Br. in Supp.

of Mot. for Summ. J. 8-10 (relying on, inter alia, Pl.’s Ex. 1

(Pomeroy Aff.) and Pl.’s Ex. 2 (the Gondola Botanical Hurricane

product)).

The specific question before the court is whether the Willoughby

or Pompeo tests are satisfied with regard to the relationship between

sku 804427 and the Gondola Botanical Hurricane. This is because

Customs does not contest that Pomeroy’s Gondola Botanical Hurricane,

when assembled, is properly classified as under Heading 9405. See

Answer to Am. Compl. ¶ 14; see also Pomeroy Collection, Ltd. v. United

States, 32 CIT __, 559 F. Supp. 2d 1374, 1386-87 (2008) (“Pomeroy I”)

(holding certain Pomeroy merchandise, functionally identical to the

Gondola Botanical Hurricane,12 to be properly classified under Heading

9405); Pl.’s Ex. 8 (HQ 964842 (June 25, 2002)) (classifying Pomeroy’s

“‘Gondola’ Hurricane Candleholder” under Heading 9405).

Plaintiff is correct that sku 804427 should be classified as part

of Pomeroy’s Gondola Botanical Hurricane, because the relationship

between the sku 804427 glass and the Gondola Botanical Hurricane

satisfies the Willoughby test. The Gondola Botanical Hurricane

clearly could not function without the sku 804427 glass, which

12
The difference between the Gondola Botanical Hurricane and the
product at issue in Pomeroy I consists only in the shape of the outer
glass vessel – bell-shaped in Pomeroy I and hurricane-shaped in the
Gondola Botanical Hurricane – and the material to be placed within the
glass beneath the candle – sand and stones in Pomeroy I and potpourri
in the Gondola Botanical Hurricane. Compare Pl.’s Ex. 2 (Pomeroy’s
Gondola Botanical Hurricane) with Pomeroy I, __CIT at __, 559 F. Supp.
2d at 1378-79.
Consol. Court No. 04-00290 Page 8

constitutes its external structure. See Pl.’s Ex. 2.13 Without the

glass part, the metal candleholder, meant to hang over the enclosed

potpourri, as depicted on the retail packaging, would have nothing to

hang from. Accordingly, because sku 804427 is appropriately part of

an article that is properly classified under Heading 9405, see Pomeroy

I, 559 F. Supp. 2d at 1386-87, and is therefore itself classifiable

under such heading, see HTSUS, 9405.91, this merchandise was

improperly classified under Heading 7013. See HTSUS Chapter 70, Note

1(e).

13
Customs does not agree that the sku 804427 glass is designed to
and does fit with the remaining components of the Gondola Botanical
Hurricane, and therefore argues that the sku 804427 glass cannot in
fact serve as the external structure of the Gondola Hurricane, as
depicted on the cover of its packaging. See Def.’s Resp. to Pl.’s
Stmt. of Material Facts as to Which No Genuine Issue Exists (“Def.’s
Resp. to Pl.’s Stmt. of Facts”) ¶¶ 6, 8 (“Mr. Thomas Campanelli,
National Import Specialist for lamps and lighting fittings line,
examined Plaintiff’s Exhibit 2 [the Gondola Botanical Hurricane] and
attempted to assemble the item in the manner reflected by the
photographs on the box containing Plaintiff’s Exhibit 2. In
attempting to assemble the item, Mr. Campanelli determined that it was
not possible to balance the arms of the metal candle holder on the rim
of the subject glassware as depicted on the retail picture box. Thus,
[Customs claims that] it is reasonable to conclude that sku 804427 was
not specifically designed for the purpose reflected by the photographs
on Plaintiff’s Exhibit 2 since the design of sku 804427 does not lend
itself to assembly as illustrated by Plaintiff’s [Exhibit] 2.” (citing
Def.’s Ex. A (Campanelli Decl.) ¶ 6)).
The parties have stipulated that the court will decide this
factual issue while ruling on the parties’ cross-motions for summary
judgment. Tr. of Tel. Conference (June 21, 2011), ECF No. 61, at 3-8.
Accordingly, the court finds that the sku 804427 glass, which is
uncontestedly included within the retail packaging of Pomeroy’s
Gondola Botanical Hurricane, as exemplified by Plaintiff’s Exhibit 2,
does usually combine with the remaining components included in such
packaging in order to assemble the Gondola Hurricane. The depiction
of the assembled Gondola Hurricane on the cover of the retail
packaging of Plaintiff’s Exhibit 2 shows the metal insert fitting on
the rim of the glass, and the possible malfunction of one likely
defective part, see Pl.’s Ex. 9 (2d Pomeroy Aff.) ¶¶ 5-6, does not
negate the item’s normal design and function.
Consol. Court No. 04-00290 Page 9

III. SKU 807329

Next, Plaintiff avers that sku 807329, exemplified by Plaintiff’s

Exhibit 3, was specifically designed to serve exclusively as the

candle holder in a number of Pomeroy products. Pl.’s Stmt. of Material

Facts as to Which There Are No Genuine Issues to be Tried ¶¶ 10-11

(citing Pl.’s Ex. 1 (Pomeroy Aff.) ¶¶ 8-914). Plaintiff contends that

these articles could not function in their intended manner without the

sku 807329 glass. Id. at ¶ 15 (citing Pl.’s Ex. 1 (Pomeroy Aff.)

¶ 1615).

The relationship between the sku 807329 glass and the products

exemplified by Plaintiff’s Exhibit 4 – and depicted in Plaintiff’s

Exhibits 5, 6, and 7 – satisfies the Pompeo test, such that sku 807329

is properly a ‘part’ of such articles. Sku 807329 is “dedicated

solely for use” as the wind-breaking and protective structure of these

14
See Pl.’s Ex. 1 (Pomeroy Aff.) ¶ 9 (affirming that sku 807329
was designed to be used in Pomeroy’s Cabernet Pillar Holder,
exemplified by Pl.’s Ex. 4; the Chardonnay Pillar Holder, depicted in
Pl.’s Ex. 5; the Portofino Pillar Holder, depicted in Pl.’s Ex. 6; and
the Troubador Wall Sconce, depicted in Pl.’s Ex. 7). The products
depicted in Plaintiff’s Exhibits 5, 6, and 7, and the product
constituting Plaintiff’s Exhibit 4, each consist of a metal base
supported on a metal stand, with the sku 807329 glass sitting on top
and containing a candle. These products all appear functionally
identical to one another, differing only in the color of the candle,
and the aesthetic details and color of the metal stand supporting the
base into which the sku 807329 glass is inserted.
15
(“[. . .] While one could place an open candle on the metal
frames [of these articles], the safety and capabilities of the
articles would be severely compromised, especially when used in
outdoor settings, and the appearance of the articles would be lessened
substantially.”).
Consol. Court No. 04-00290 Page 10

products,16 and, “when applied to that use,” the Willoughby test is

satisfied, as these products cannot function as protected flames

without sku 807329. See Pompeo, 43 C.C.P.A. at 14. Accordingly,

because sku 807329 is appropriately part of an article that is

properly classified under Heading 9405, see Pomeroy I, 559 F. Supp. 2d

at 1386-87,17 and is therefore itself classifiable under such heading,

16
See Pl.’s Ex. 1 (Pomeroy Aff.) ¶ 15 (affirming that, for each
article, sku 807329 was designed to “serve[] to hold the pillar
candles; to contain the flame; to enable the candles to remain lit in
light breezes or air currents; and to prevent possible burns, or the
ignition of flammable materials, from what would otherwise be open
flames”).
Although Customs does not concede that sku 807329 was designed to
serve, and is in fact amenable to serving, these purposes, Def.’s
Resp. to Pl.’s Stmt. of Facts ¶ 11 (arguing that sku 807329 “does not
contain physical characteristics associated with candleholders in that
[it] has a domed or convex bottom that would make it unsuitable for
holding a candle which should, at a minimum, have a flat surface upon
which to stabilize a candle” (citing Def.’s Ex. A (Campanelli Decl.)
¶¶ 7-8), the dispute does not rise to the level of a genuine dispute
of material fact. As exemplified by Plaintiff’s Exhibit 4, the sku
807329 glass clearly fits with the rest of the components included
within the retail packaging for these products, so as to serve as the
assembled product’s wind-breaking and protective structure. Any
slight curvature in the bottom is immaterial. Accordingly, Customs
does not present, or claim the presence of, a genuine dispute
regarding an issue of material fact. See Def’s Stmnt. of Material
Facts as to Which No Genuine Issue Exists (“[T]here are no material
facts as to which there exists a genuine issue to be tried and the
issues are amenable to resolution through dispositive motions.”).
17
See also World Customs Organization, Harmonized Commodity
Description and Coding System: Explanatory Note 94.05 (“Lamps and
lighting fittings [classified under Heading 9405] can . . . use any
source of light [including] candles . . . . This heading covers in
particular . . . [p]ortable lamps [], e.g.,[] hurricane lamps
. . . .”); N. Am. Processing Co. v. United States, 236 F.3d 695, 698
(Fed. Cir. 2001) (“Although the Explanatory Notes 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.” (citation omitted)). Customs does not contest that the
products exemplified by Plaintiff’s Exhibit 4 and depicted in
Plaintiff’s Exhibits 5, 6, and 7 are properly classified under Heading
9405. See Answer to Am. Compl. ¶ 22; see generally Def.’s Mem. L. in
Opp’n to Pl.’s Mot. for Summ. J. and in Supp. of Def.’s Cross-Mot. for
Consol. Court No. 04-00290 Page 11

see HTSUS, 9405.91, this merchandise was also improperly classified

under Heading 7013. See HTSUS Chapter 70, Note 1(e).

CONCLUSION

For all of the foregoing reasons, Plaintiff’s motion for summary

judgment is GRANTED, and Defendant’s cross-motion for summary judgment

is DENIED. The parties are directed to prepare and submit to the

court, by July 27, 2011, a judgment, in accordance with this opinion,

to be entered by the court.

It is SO ORDERED.

/s/ Donald C. Pogue
Donald C. Pogue, Chief Judge

Dated: July 6, 2011
New York, N.Y.

Summ. J.