Slip Op. 11-51
UNITED STATES COURT OF INTERNATIONAL TRADE
______________________________
:
GRAPHITE SALES, :
: Before: Nicholas Tsoucalas,
Plaintiff, : Senior Judge
:
v. :
:
UNITED STATES, :
: Court No. 07-00225
Defendant. :
______________________________:
[Granting Plaintiff’s Motion for Summary Judgment. Denying
Defendant’s Cross Motion for Summary Judgment]
Dated: May 4, 2011
Rodriguez O’Donnell Gonzalez & Williams, PC (Lara A. Austrins,
Thomas J. O’Donnell, Jessica R. Rifkin), for Graphite Sales,
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,
(Of Counsel, Michael Heydrich), for United States, Defendant.
OPINION
Tsoucalas, Senior Judge: Plaintiff, Graphite Sales brings this
action to contest the classification of its merchandise under the
Harmonized Tariff Schedule of the United States (“HTSUS”) 9613
arguing that the goods should be classified under HTSUS 8516. The
United States Customs and Border Protection (the “Government” or
Court No. 07-00225 Page 2
“CBP”), however, contends that the subject goods should be
classified under HTSUS 9613. This action is currently before the
Court on cross motions for summary judgment pursuant to United
States Court of International Trade (“USCIT”) Rule 56.
Jurisdiction is pursuant to 28 U.S.C. § 1581(a) (2010). For the
reasons set forth below, the Court finds that no genuine issues of
material fact remain and Graphite Sales is entitled to judgment as
a matter of law.
BACKGROUND
I. The Subject Goods
The subject goods at issue are “electric heating resistors,”
known also as “hot surface igniters.” Jt. Stmt. of Mat. Fcts.
(“Jt. Stmt.”) at 1. Electric heating resistors function by
converting electric energy into heat energy. Id. The subject
goods are physically mounted to the appliances they serve, and the
two are connected by wires. Id.1 Once turned on, the wires
transmit a flow of electricity from the appliance to the subject
good. Each electric heating resistor features a specially shaped
bar or rod of either silicon carbide or silicon nitride which are
highly resistant to electricity. Consequently, when an electric
current passes through the silicon carbide or silicon nitride bars
1
All models of the subject goods require electric voltage
to operate. None of the subject goods can supply their own source
of current. See Pl.’s Fcts. at 4.
Court No. 07-00225 Page 3
or rods, it produces enough heat to ignite gas, or a mixture of air
and gas, thus powering the appliance. See Jt. Stmt. at 1-2. The
subject goods are used in gas powered stoves, clothes dryers, water
heaters and furnaces. Id. at 1.
II. Procedural History
From June 22, 2005 until January 16, 2006, Graphite Sales
imported eleven entries of the subject goods through the port of
Cleveland, Ohio. The commercial invoices for the subject goods
identified them as “ceramic heating elements.” Pl.’s Fcts. at 1.
Upon liquidation, CBP classified the subject goods under
9613.90.40, HTSUS, as lighter parts. Graphite Sales filed a
protest with CBP to contest this classification. See Protest No.
4104-06-100149. The Government changed its position and now claims
that the subject goods are classifiable under 9613.80.20, HTSUS as
complete lighters.2 Def.’s Rspns. to Plntf’s Frst. Intrg. and
Req. For Prod. Of Docs. at 8. 9613.8020, HTSUS, provides as
follows:
9613 Cigarette lighters and other lighters, whether or not
mechanical or electrical, and parts thereof other than flints
and wicks:
* * *
2
Given the Court’s analysis herein, the result of this case
would be the same whether the subject goods were classified under
HTSUS 9613.90.40 or HTSUS 9613.80.20.
Court No. 07-00225 Page 4
9613.80 Other lighters:
* * *
Other:
9613.80.20 Electrical...............................3.9%
Graphite Sales asserted that the proper classification of the
subject goods is 8516.80.80, HTSUS, which provides:
8516 Electric instantaneous or storage water heaters and immersion
heaters; electric space heating apparatus and soil heating
apparatus; electrothermic hairdressing apparatus (for example,
hair dryers, hair curlers, curling tong heaters) and hand
dryers; electric flatirons; other electrothermic appliances of
a kind used for domestic purposes; electric heating resistors,
other than those of heading 8545; parts thereof (con.):
* * *
8516.80 Electric heating resistors:
* * *
8516.80.80 Other ........................................Free
After its protest was denied, Graphite Sales filed a timely
summons with the Court disputing the classification of the subject
goods. All liquidated duties, charges and exactions for the
subject entries have been paid prior to the commencement of this
action. See Pl.’s Fcts. at 1.
LEGAL STANDARD
Pursuant to USCIT Rule 56, summary judgment is appropriate
when there is no genuine issue as to any material fact and the
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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 fact that both
parties have moved for summary judgment “does not mean that the
court must grant judgment as a matter of law for one side or the
other; summary judgment in favor of either party is not proper if
disputes remain as to material facts.” Mingus Constructors, Inc.
v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987) (citation
omitted).
Here, the parties have stipulated that the subject goods are
“electric heating resistors”. 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.
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,
Court No. 07-00225 Page 6
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.
“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)).
Court No. 07-00225 Page 7
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. Accordingly, this classification analysis necessarily
begins by examining the separate language of the headings of HTSUS
8516, and HTSUS 9613 to determine whether the subject goods are
prima facie classified under either or both.
Turning first to HTSUS 8516, the Court concludes that the
goods are prima facie classifiable thereunder because HTSUS 8516
specifically includes “electric heating resistors” and the parties
stipulated, “[t]he goods at issue in this case are electric heating
resistors.” See, Jt. Stmt. at 1.3 Similarly, the goods also
appear to be prima facie classifiable under HTSUS 9613 because the
Government has presented evidence that the subject goods are
3
The only language limiting the provision is the exclusion
of Heading 8545 which provides for electric heating resistors
made of carbon. This exclusion is inapplicable on these facts
because the subject goods are not made of carbon.
Court No. 07-00225 Page 8
lighters, and the heading includes “other lighters, whether or not
mechanical or electrical”. Additionally, the accompanying
Explanatory Notes (“EN”) therein make clear that some electric
lighters may contain electric resistors. Explanatory Notes,
Section XX, Chapter 96.13. As such, under GRI 1, the subject goods
are prima facie classifiable under both HTSUS provisions.
Under GRI 3(a), when a product is prima facie classifiable
under two or more headings, “[t]he heading which provides the most
specific description shall be preferred to headings providing a
more general description.” Gen. R. Interp. 3(a), HTSUS. “Under
this so-called rule of relative specificity, we look to the
provision with requirements that are more difficult to satisfy and
that describe the article with the greatest degree of accuracy and
certainty.” Orlando Foods Corp. v. United States, 140 F.3d 1437,
1441 (Fed. Cir. 1998). The rule of specificity refers to the
specificity in the headings and not subheadings. See Archer
Daniels Midland Co. v. United States, 561 F.3d 1308, 1317 (Fed.
Cir. 2009); see also, Orlando Foods, 140 F.3d at 1440
(“Furthermore, when determining which heading is the more specific,
and hence the more appropriate for classification, a court should
compare only the language of the headings and not the language of
the subheadings.”). As such, the more appropriate classification
for the subject goods will be the provision which is more specific.
Court No. 07-00225 Page 9
See Id. at 1441.
HTSUS 8516 expressly covers “electric heating resistors.”
Conversely, HTSUS 9613 covers “other lighters whether or not
mechanical or electrical.” There is no reference to an electric
heating resistor nor to a hot surface ignitor under HTSUS 9613.
Of the two competing headings, HTSUS 8516 is more specific than
HTSUS 9613 because HTSUS 8516 specifically covers “electric
heating resistors,” which both parties stipulate the goods “are”
and HTSUS 9613 refers simply to “other lighters” a general term
which may include the subject goods under some circumstances.
Moreover, both HTSUS 8516 and HTSUS 9613 are an eo nomine
provisions, i.e., a tariff provision that identifies an item by
name. See Global Sourcing Group, 33 CIT at __ n.12, 611 F. Supp.
2d at 1374 n.12. An eo nomine tariff classification that names
articles without terms of limitation is deemed to include all
forms of the article, absent evidence of contrary legislative
intent. See Chevron Chemical Co. v. United States, 23 CIT 500,
505, 59 F. Supp. 2d 1361, 1367 (1999). Here, there are two eo
nomine provisions subject to the rule of specificity. Clearly,
the eo nomine provision of HTSUS 8516 which contains the actual
term “electric heating resistor” is more specific to the subject
goods than the eo nomine provision of HTSUS 9613, which refers
Court No. 07-00225 Page 10
only to “other lighters whether or not mechanical or electrical”.
Also, EN 85.16 additionally provides that “all electric
heating resistors are classified here, irrespective of the
classification of the apparatus in which they are to be used.”
Explanatory Notes, Volume V, Section XVI, Chapter 85.16(F) (4th
Ed. 2007). This EN provides additional specificity and support
confirming that not only are electric heating resistors classified
under HTSUS 8516, they are classified there regardless of any
subsequent goods in which they may be used. “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).
The EN of HTSUS 96.13 does not offer similar specific
language. Instead, EN 96.13, provides for mechanical lighters,
electrical lighters, chemical lighters and non-mechanical
lighters. Moreover, not all types of electrical lighters
Court No. 07-00225 Page 11
necessarily contain electric resistors.4 Additionally, it is
significant to note that to operate the subject goods, an outside
electrical power source is required whereas the other lighters
described in EN 96.13 are fully equipped with their own internal
power source. Explanatory Notes, Section XX, Chapter 96.13. As
such, HTSUS 9613 does not describe the subject goods with the same
specificity as provided for in HTSUS 8516, nor does EN 96.13
contain similar language of exclusivity as described earlier in EN
85.16.
The Court’s analysis is consistent with a June 4, 2007
conclusion made by CBP Import Specialist 231 contained in an
Interoffice Memorandum from the Chief of the Special Products
National Commodity Division to the Director of the Commercial
Rulings Division Office. Specifically, the Memorandum stated:
We find that an “electric heating resistor” is a narrowly
defined product consisting essentially of an electrical
conductor designed to become very hot when a current is
passed through it. On the other hand, we find that the
phrase “cigarette lighters and other lighters, whether or
not mechanical or electrical,” denotes a broad range of
products having many different types of construction and
means of operation. Thus, we find that heading 8516 more
specifically describes the instant articles, and is
therefore the more appropriate classification for them.
The fact that these particular goods may be specifically
4
Not all electric lighters are electric resistor type
lighters: “Current from the mains or a battery produces a spark,
or in certain types, a glowing heat in an electric resistor.”
Explanatory Notes, Volume V, Section XX, Chapter 96.13 (4th Ed.
2007).
Court No. 07-00225 Page 12
designed or intended to function as igniters, or
lighters, in ovens or other appliances, is not relevant
to this GRI 3(a) analysis.
Plt. Mot. for Sum. J., Ex. 10 at 3.
CONCLUSION
Considering all of the foregoing, the Court agrees with
Graphite Sales that the subject merchandise should be classified
under HTSUS 8516 because the description “electric heating
resistors” more specifically describes the subject merchandise with
a greater degree of accuracy and certainty than “other lighters,
whether or not mechanical or electrical”. Therefore, under a GRI
3(a) analysis, HTSUS 8516 prevails over HTSUS 9613 and is the
appropriate classification for the subject goods.
The GRIs are applied in numerical order. If the headings,
subheadings and any relevant chapter notes resolve a classification
issue, the matter stops there. North American Processing Co. v.
United States, 236 F.3d 695, 698 (Fed. Cir. 2001). “The court
applies the GRIs in numerical order and once a particular rule
provides proper classification, the court may not consider any
subsequent GRI.” Lemans Corp. v. United States, 34 CIT __, __, 675
F. Supp. 2d 1374, 1379 (2010), appeal docketed, No. 10-1295 (Fed.
Cir. April 9, 2010). This matter has been decided at the GRI 3(a)
Court No. 07-00225 Page 13
level of analysis. Accordingly, the parties’ contentions which
sought to extend beyond the GRI 3(a) level need not be addressed.
See Mita Copy Star Am. v. United States, 160 F.3d 710, 712 (Fed.
Cir. 1998).
For the foregoing reasons, Graphite Sales’ 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 8516.80.80. Judgment will be entered accordingly.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: May 4, 2011
New York, New York