Wagner Spray Tech Corp., Inc. v. United States

Slip Op. 07-64

UNITED STATES COURT OF INTERNATIONAL TRADE

______________________________________
:
WAGNER SPRAY TECH :
CORPORATION, INC., :
:
: Before: WALLACH, Judge
Plaintiff, : Court No.: 04-00521
:
v. :
:
UNITED STATES, :
:
Defendant. :
______________________________________:

[Plaintiff’s Rule 56 Motion for Summary Judgment is DENIED and Defendant’s Cross-Motion
for Summary Judgment is GRANTED.]

Dated: May 4, 2007

Neville Peterson LLP, (Margaret R. Polito and Curtis W. Knauss) for Plaintiff Wagner Spray
Tech Corporation, Inc.

Peter D. Keisler, Assistant Attorney General; Barbara S. Williams, Attorney-in-Charge,
International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department
of Justice (Amy M. Rubin); and Chi S. Choy, Office of Assistant Chief Counsel, International
Trade Litigation, U.S. Customs and Border Protection, of Counsel, for Defendant United States.

OPINION

Wallach, Judge:

I
INTRODUCTION

This matter is before the court on Plaintiff’s Rule 56 Motion for Summary Judgment and

Defendant’s Cross-Motion for Summary Judgment. Plaintiff, Wagner Spray Tech Corporation,
Inc. (“Wagner”) challenges the United States Customs and Border Protection’s (“Customs”)

classification of its imported merchandise under Heading 9603 of the Harmonized Tariff

Schedule of the United States (2003) (“HTSUS”) as “paint rollers” and “paint pads” at a duty rate

of 7.5% or 4% ad valorem, respectively. Plaintiff contends that the subject merchandise is

properly classified at lower rates or duty free under HTSUS Headings 8413 and 8424 as

“[p]umps for liquid . . . .” and “[m]echanical appliances . . . for projecting, dispersing or spraying

liquids.” The court has jurisdiction over this action pursuant to 28 U.S.C. § 1581(a). Because

the subject merchandise can be classified as paint rollers and pads under HTSUS Heading 9603,

Plaintiff’s Motion for Summary Judgment is denied and Defendant’s Cross-Motion for Summary

Judgment is granted.

II
BACKGROUND

Plaintiff is the patent holder of component parts of a painting system designed to hold

paint in a reservoir within the handle of the painting device and express the paint upon contact

with the surface to be covered.1 According to Plaintiff, the purpose of its products is “to allow

painters and homeowners to apply paint or stain to a surface without being required to repeatedly

bend down to fill the pad or roller with paint or stain.” Complaint ¶ 12. Between November 15,

2002 and July 17, 2003 Wagner entered subject merchandise known as “Paint-N-Roll,”

1
See United States Patent No. 4,732,503, Reservoir Fluid Dispenser with Control Valve
4:15-16 (March 22, 1988), Defendant’s Appendix, Tab E (“The present innovation provides a
paint roller that includes a self-contained paint supply. A reservoir in the paint roller can be
easily filled yet the roller provides a means for preventing the accidental expulsion of paint
through the filling port.”); United States Patent No. 471,552, Modular Manual Roller Handle,
Defendant’s Appendix, Tab F.

2
“PaintMate Plus,” “StainMate” and “Trim-It” (collectively “Wagner products”) through the port

of Minneapolis, Minnesota. Summons, Court No. 04-00521 (October 14, 2004); Amended

Summons, Court No. 04-00521 (May 10, 2005). Customs liquidated all entries between April

11, 2003 and May 28, 2004 and classified the subject merchandise under HTSUS Heading 9603,

Subheadings 9603.40.2000 or 9603.40.4020,2 as “Paint Rollers” and “Paint Pads,” assessing a

duty of 7.5% or 4% on the merchandise depending on whether the products were classified as

rollers or pads. Complaint ¶ 18; see also Defendant’s Memorandum in Support of its Cross-

Motion for Summary Judgment and in Opposition to Plaintiff’s Motion for Summary Judgment

(“Defendant’s Motion”) at 1. Plaintiff paid all liquidated duties, taxes and fees associated with

the entries at issue. Complaint ¶ 3; Answer ¶ 3. Wagner filed a protest on June 16, 2003

contesting Customs’ classification of its imported merchandise.3 Amended Summons. Customs

2
HTSUS Heading 9603 and Subheadings 9603.40.2000 and 9603.40.4020 provide:

9603 Brooms, brushes (including brushes constituting parts of
machines, appliances or vehicles), hand-operated
mechanical floor sweepers, not motorized, mops and
feather dusters; prepared knots and tufts for broom or brush
making; paint pads and rollers; squeegees (other than roller
squeegees):

* * *
9603.40.2000 Paint rollers

* * *
9603.40.4020 Paint pads
3
In its Protest Wagner asserted that its merchandise is properly classified in any of
HTSUS Subheadings 8424.20.90, 8424.89.7090, or 8413.50.90. In Count 3 of its Complaint
Wagner argued that its merchandise is also properly classified in Subheadings 8424.20.1000 and
8413.20.0000, omitting Subheading 8413.50.90. Complaint ¶ 29. Because Plaintiff does not re-
assert the contention that its products are classifiable in Subheading 8413.50.90 neither in its
Complaint and in its Motion for Summary Judgment the court assumes that Plaintiff has

3
denied Plaintiff’s protest on May 26, 2004.4 Id. Plaintiff filed another protest concerning the

importation of identical merchandise classified under HTSUS Heading 9603 on August 11, 2004,

which was denied on August 18, 2004.5 Id. On October 14, 2004, Plaintiff timely commenced a

civil action contesting Customs’ denial of these protests pursuant to 28 U.S.C. § 1581(a). In

Plaintiff’s Motion, it asserts that the merchandise is properly classified in any of HTSUS

Subheadings 8413.20.00,6 8424.20, 8424.20.10 or 8424.20.90.7 Both parties to this case

abandoned this argument.
4
Protest Number 3501-03-100028 concerns Entry Numbers: 336-4175029-6, 336-
4175096-5, 336-4175099-9, 336-4175098-1, 336-4025526-0, 336-4175100-5, 336-4175030-4,
336-4174443-0, 336-4025516-4, 336-4025519-8, 336-4174446-3, 336-4175602-0, 336-4025225-
2, 336-4025227-8, 336-4025371-4, 336-4025517-2, 336-4175031-2, 336-4175028-8, 336-
4174543-7, 336-4175032-0, 336-4175033-8, 336-4175095-7, 336-4175034-6, 336-4175097-3,
336-4175101-3, 336-4175315-9, 336-4175599-8, 336-4175601-2, 336-4175603-8, 336-4176239-
0, 336-4175915-6, 336-4176241-6. Amended Summons.
5
Protest Number 3501-04-100033 concerns Entry Numbers: 336-4494937-4, 336-
4495220-4, 336-4494952-3. Amended Summons.
6
HTSUS Heading 8413 and subheading 8413.2000 provide:

8413 Pumps for liquids, whether or not fitted with a measuring
device; liquid elevators; part thereof:
Pumps fitted or designed to be fitted with a
measuring device:

* * *

8413.2000 Hand pumps, other than those of subheading
8413.11 or 8413.19
7
HTSUS Heading 8424 and subheadings 8424.20, 8424.20.10 and 8424.20.90 provide:

8424 Mechanical appliances (whether or not hand operated) for
projecting, dispersing or spraying liquids or powders; fire
extinguishers, whether or not charged; spray guns and
similar appliances; stream or sand blasting machines and

4
submitted motions for summary judgment. The court may only grant a motion for summary

judgment in classification cases where there is no genuine issue as to what the merchandise is, or

where none of the articles’ “pertinent characteristics” are in dispute. Rollerblade, Inc. v. United

States, 112 F.3d 481, 483 (Fed. Cir. 1997). The parties’ disagreements on the issues of fact are

not material to the outcome of this case and therefore do not preclude entry of a summary

judgment.8 Oral argument was held on February 7, 2007.

III
STANDARD OF REVIEW

A motion for summary judgment shall be granted if “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” USCIT R. 56(c). Where both parties have moved for summary judgment the

similar jet projecting machines; parts thereof:

* * *

8424.20 Spray guns and similar appliances:

8424.20.10 Simple piston pump sprays and powder
bellows

* * *

8424.20.90 Other
8
An issue of material fact could arise were the court to proceed to a General Rules of
Interpretation (“GRI”) 3 analysis which would require the court to make a factual determination
regarding whether Wagner products contain a pump for purposes of HTSUS Heading 8413.
Because all subject merchandise in question fall within the scope of Heading 9603 pursuant to a
GRI 1 analysis, no issue of material fact exists based on the papers, pleadings and oral argument
in this case.

5
court need not grant either motion because “summary judgment for 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). However, “the Court of International Trade has not hesitated to decide

classification cases on summary judgment when that was appropriate.” Bausch & Lomb, Inc. v.

United States, 148 F.3d 1363, 1365 (Fed. Cir. 1998). In classification cases, summary judgment

is appropriate where there is no underlying factual issue of what the merchandise is, because “the

proper classification under which [an article] falls . . . has always been treated as a question of

law.” Id. at 1366; see also Mead Corp. v. United States, 283 F.3d 1342, 1345-46 (Fed. Cir.

2002). The court employs a two-step analysis when deciding classification cases: “the first step

concerns the proper meaning of the tariff provisions at hand . . . [t]he second step concerns

whether the subject imports properly fall within the scope of the possible headings.” Universal

Elecs. Inc. v. United States, 112 F.3d 488, 491 (Fed. Cir. 1997). In addition, because Customs’

factual determination is statutorily presumed to be correct, “the party challenging the

classification . . . bears the burden of proof.” Totes, Inc. v. United States, 69 F.3d 495, 498 (Fed.

Cir. 1995) (citing 28 U.S.C. § 2639(a)(1)). The court reviews de novo classification cases

brought pursuant to §1581(a) in accordance with 28 U.S.C. § 2640(a).

IV
ANALYSIS

The Imported Wagner Products Were Properly Classified by Customs under the Eo
Nomine Designation of HTSUS Heading 9603

A
General Rules for Classification of Goods

The proper classification of merchandise entering the United States is governed by the

6
General Rules of Interpretation (“GRI”) of the Harmonized Tariff Schedules of the United States.

See, e.g., Orlando Food Corp v. United States, 140 F.3d 1437, 1439 (Fed. Cir. 1998). GRI 1 in

pertinent part states that “for legal purposes, classification shall be determined according to the

terms of the headings and any relative section or chapter notes.” GRI 1, HTSUS. For

clarification of the scope of a tariff heading, the court may refer to the Explanatory Notes

(“ENs”) accompanying each heading, which is the Customs Cooperation Council’s official

interpretation of the HTSUS. See, e.g., Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1378 n.1

(Fed. Cir. 1999). Although the Explanatory Notes are not controlling “they should be consulted

for guidance” and are “generally indicative of the proper interpretation of the various provisions

of the [HTSUS]” and “thus useful in ascertaining the classification of merchandise under the

system.” H.R. Conf. Rep. No. 100-576 at 549 (1987), reprinted in Legislative History of the

Omnibus Trade and Competitiveness Act of 1988 (1988); see also Carl Zeiss, 195 F.3d at 1378

n.1.

An eo nomine provision describes goods according to “their common and commercial

meaning.” Carl Zeiss, 195 F.3d at 1379. A court may “rely upon its own understanding of the

terms used” or consult lexicography or other reliable sources to define the tariff term. Id. In

addition, “[a]n eo nomine provision that names an article without terms of limitation, absent

evidence of a contrary legislative intent, is deemed to include all forms of the article.” Chevron

Chem. Co. v. United States, 23 CIT 500, 505, 59 F. Supp. 2d 1361 (1999) (citing Nootka

Packing Co. v. United States, 22 CCPA 464, 469-70 (1935)). Furthermore, “an article which has

been improved or amplified but whose essential characteristic is preserved or only incidentally

altered is not excluded from an unlimited eo nomine statutory designation.” Casio, Inc. v. United

7
States, 73 F.3d 1095, 1098 (Fed. Cir. 1996) (citing Robert Bosch Corp. v. United States, 63 Cust.

Ct. 96, 103-04 (1969)). If classification is not resolved satisfactorily by application of GRI 1, the

court will refer to the succeeding GRIs in numerical order. See, e.g., Conair Corp. v. United

States, Slip Op. 05-95, 2005 Ct. Int’l Trade LEXIS 104, at *7 (CIT August 12, 2005).

When goods are prima facie classifiable under two or more headings, classification is

resolved by application of GRI 3. GRI 3, HTSUS; see also Bauer Nike Hockey USA, Inc. v.

United States, 393 F.3d 1246, 1252 (Fed. Cir. 2004). GRI 3(a) provides that the more specific

description of a good shall be preferred over a more general description. Id. To discern which is

the more specific description “a court ‘looks to the provision with requirements that are more

difficult to satisfy and that describe the article with the greatest degree of accuracy’” in

accordance with the “relative specificity” analysis mandated by GRI 3(a). Len-Ron Mfg. Co., Inc.

v. United States, 334 F.3d 1304, 1313 (Fed. Cir. 2003) (quoting Carl Zeiss, 195 F.3d at 1380).

The Explanatory Notes to GRI 3(a) provide that “[a] description by name is more specific than a

description by class.” Explanatory Note, Rule 3(a) (2003). GRI 3(b) assumes that the article is a

composite good, not encompassed by a single heading, which will be classified according to the

component of the subject merchandise which imparts the good with its “essential character.” GRI

3(b).

B
The Court Need Not Consider Classification of Wagner Products Beyond GRI 1 Because
HTSUS Heading 9603 Encompasses the Subject Merchandise in its Entirety

Wagner’s principal argument is premised on the court finding that no single HTSUS

heading describes its products in their entirety, and that the court must therefore proceed to a GRI

3 analysis. See Memorandum of Points and Authorities in Support of Plaintiff’s Rule 56 Motion

8
for Summary Judgment (“Plaintiff’s Motion”) at 19. Plaintiff does not entertain the possibility

that the court may resolve classification by application of GRI 1, stating “the unique features of

the Wagner Products result in these Products being described in more than one heading.” Id. at

11. Wagner attempts to distinguish its products from what it calls “traditional” paint rollers and

pads by attributes such as the pump that transports paint from the paint can into the handle of the

paint roller, the existence of a reservoir in the handle and the metric capacity of the product to

hold paint. Id. at 2. Wagner asserts that its products cannot be classified as paint rollers and pads

because such items do not traditionally contain trigger devices, reservoirs, intake valves, outlet

valves and pistons, nor do traditional rollers project paint from inside the roller core. Id. at 5-6.

Defendant argues that the imported articles were appropriately classified by Customs in

Heading 9603 as “Paint rollers” or “Paint pads” and that because the subject merchandise is

wholly encompassed by a single tariff provision, no analysis beyond GRI 1 is needed.

Defendant’s Motion at 10; HTSUS Heading 9603. The Government asserts that Heading 9603 is

an eo nomine provision encompassing “specifically identified products” including “paint pads

and rollers.” Id. In support of its contention that Wagner products contain identical features to

traditional paint rollers and pads, Defendant cites to the Explanatory Notes accompanying

Heading 9603 which describe paint rollers as containing “a roller” and “a handle.”9 Id. at 10-11.

9
The Explanatory Notes to Heading 9603 describe paint rollers and pads as follows:

Paint rollers consist of a roller covered with lambskin or other material mounted
on a handle.

Paint pads consist of a flat surface, for example, of woven fabric attached to a
hard back, usually of plastics; they may have handles.

Explanatory Note 96.03(F) (2003).

9
Defendant refutes Plaintiff’s attempt to distinguish its products from traditional paint pads and

rollers, arguing that Wagner products’ added features do not transform the products, but are

merely improved versions of traditional paint pads and rollers. Id. at 11. Defendant also notes

that Plaintiff periodically refers to its own products as “paint rollers” or “paint pads” both in its

patents and in its regular marketing. Id. (citing Patent No. 4,732,503; Defendant’s Appendix,

Tabs P, Q).

The role of the court in a classification case is to construe the proper meaning of the tariff

terms at issue and then to determine whether the subject imports fall within the scope of the

heading. See, e.g., Universal Elecs. Inc. v. United States, 112 F.3d at 491. Heading 9603 is an

eo nomine provision, which describes the goods according to their “common and commercial

meaning.” See Carl Zeiss, 195 F.3d at 1379. An article which has also been “improved or

amplified” is not excluded from an eo nomine designation. See Casio, 73 F.3d at 1098; JVC Co.

of Am. v. United States, 234 F.3d 1348, 1352 (Fed. Cir. 2000). Absent terms of limitation or a

“demonstrated contrary legislative intent, judicial decision, or administrative practice,” an eo

nomine designation includes “all forms of the product, including improved forms.” Chevron

Chemical Co. v. United States, 23 CIT 500, 505, 59 F. Supp.2d 1361 (1999); Normura (Am.)

Corp. v. United States, 62 Cust. Ct. 524, C.D. 3820 (1969), aff’d, 58 CCPA 82, 435 F.2d 1319

(1971). Here, Plaintiff’s products are improved versions of traditional paint pads and rollers.

Webster’s Dictionary defines a paint roller as one that “consists typically of a rotating cylinder . .

. covered with an absorbent material and mounted on a handle so that the cylinder can be dipped

into paint or otherwise . . . be supplied with paint and rolled over a flat surface . . . so as to apply

the paint.” WEBSTER’S THIRD NEW INT ’L DICTIONARY 1622 (1986). Each Wagner product

10
contains a paint pad or a paint roller, which resembles a conventional pad or roller, and the

function of each product is identical to traditional pads and rollers, to spread paint onto surfaces.

The method by which this is accomplished does not warrant classification based on only

component parts of the products, nor does it render the products prima facie classifiable in more

than one heading. Heading 9603 properly classifies the products according to their common and

commercial meaning as paint pads or paint rollers, albeit amplified by the patented Wagner roller

core and handle. Therefore Customs properly classified the subject merchandise.

C
Wagner Products are Not Classifiable Under Heading 8424 or 8413 of the HTSUS

Wagner argues that although its products appear “at first blush” to be described in

Heading 9603, they are prima facie described by more than one heading due to their “unique

features” and are classifiable under Headings 8413 and 8424. Plaintiff’s Motion at 11.

1
HTSUS Heading 8413

Plaintiff argues that each Wagner product is a “pump” and therefore properly classified

under Heading 8413, providing for “[p]umps for liquids, whether or not fitted with a measuring

device; liquid elevators; part thereof.” Id. at 12. Wagner contends that its products share

characteristics with pumps and other appliances that are properly classified under Heading 8413,

rendering its painting devices prima facie classifiable as “pumps.” Id. at 12-13. Wagner

describes the mechanics of its products in detail, arguing that the internal functioning of its

products amount to a legally accepted definition of a pump. Id. at 13-15 (citing Hancock Gross,

Inc. v. United States, 64 Cust. Ct. 97, C.D. 3965 (1970); Fedtro, Inc. v. United States, 65 Cust.

11
Ct. 35, C.D. 4050 (1970)). Plaintiff asserts that the existence of an intake valve, an outlet valve

and a piston renders each Wagner product a “pump” for purposes of classification. Id. at 14-15.

Plaintiff further contends that this court’s decision in Conair Corp. v. United States establishes

that a product may be classified as a “pump”even where the product is composed of many other

elements. Id. at 14.

In opposition to Plaintiff’s assertion, Defendant argues that in order for a product to be

prima facie classifiable as a pump in Heading 8413, the merchandise must “continuously

displace[] volumes of liquid” as spelled out in the ENs to the heading. Defendant’s Motion at 22;

see also Defendant’s Reply to Plaintiff’s Response to Defendant’s Cross-Motion for Summary

Judgment (“Defendant’s Reply”) at 10.10 Defendant notes that in Rainin Instrument Co., Inc. v.

United States, 288 F. Supp. 2d 1360, 1367 (CIT 2003), the court held that “‘intermittently

carrying minute amounts of liquid from a source container to a destination container simply is

not the equivalent of continuously displacing volumes of liquids by means of a pump’” and that

pumps thus are defined by the “activity they create” and not by the absence or existence of a

valve. Defendant’s Motion at 22-23 (quoting Rainin, 288 F. Supp. 2d at 1367). Further,

Defendant notes that the Rainin court held classification in that case was “controlled by what the

imported article was constructed and designed to do” and that the pipettes in question were not

10
The ENs to Heading 8413 state that:

This heading covers most machines and appliances for raising or otherwise
continuously displacing volumes of liquids (including molten metal and wet
concrete), whether they are operated by hand or by any kind of power unit,
integral or otherwise.”

Explanatory Note 84.13 (2003).

12
designed to “pump” liquids. Id. Defendant furthermore notes that Wagner does not sell its

painting system as “pumps” and that while a product need not be exclusively referred to in the

marketing or product description of the article as its HTSUS designation, Plaintiff appears to

only designate its product as a pump for purposes of this lawsuit. Id. at 24.

It is obvious to the court that “pump” in and of itself does not adequately describe the

products at issue. Plaintiff’s reliance on Conair is misplaced because the court did not classify

the subject merchandise under an eo nomine provision, having determined that no HTSUS

heading provided an adequate description of a decorative fountain as an “article in all its forms.”

Conair, 2005 Ct. Int’l Trade LEXIS 104, at *10. Based on this finding the court designated the

article as a composite product and undertook a GRI 3(b) analysis from which it concluded that

the “essential character” of the decorative fountains at issue was not imparted by various

simulated rocks and bamboo, but by the pump. Conair at *21.

In this case, even if Wagner products contain a “pump” as defined in Heading 8413, such

a pump would not impart the products with their “essential character” because the subject

merchandise is made for painting, not pumping, and the object of Plaintiff’s product is not to

remove paint from a bucket, but to spread it on walls. Furthermore, as the court stated in Fedtro,

“[w]ith respect to [articles having dual or multiple end uses], ‘the question is not so much what .

. . [the imported article] does as what it primarily was constructed and designed to do,’ insofar as

classification of the article is concerned . . . .” Fedtro, 65 Cust. Ct. at 44 (quoting United Carr

Fastener Corp. v. United States, 54 C.C.P.A. 89, C.A.D. 913 (1967), aff’g 56 Cust. Ct. 347, C.D.

2648 (1966)). However, because classification of Wagner products can be resolved under a GRI

1 analysis, the court need not reach a GRI 3 analysis.

13
 2
HTSUS Heading 8424

Wagner maintains that its products are also described in Heading 8424 as “Mechanical

appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or

powders.” Plaintiff’s Motion at 15; HTSUS Heading 8424. Wagner contends that its “patented

roller core” projects, disperses and sprays the liquid in “five streams or jets” and “by the feed

channels inside the roller core.” Plaintiff’s Motion at 17-18. In support of its contentions,

Wagner explains that pumps often are mechanisms causing the projection, dispersion or spray of

liquids and that Customs routinely classifies, for example, spray bottles for household use and

condiment dispensers under Heading 8424. Id. Plaintiff also argues that, absent legislative intent

to the contrary, the use provision is preferred where a product is described by both a use

provision and an eo nomine provision. Id. at 19 (citing United States v. Siemens Am., Inc., 68

C.C.P.A. 62, 653 F.2d 471, 478 (1981)).

The Explanatory Notes to Heading 8424 provide in part that “spray guns . . . are usually

designed for attaching to compressed air or steam lines . . . .[and] are used for spraying paint,”

none of which applies to the subject merchandise. Defendant’s Motion at 19.11 Defendant points

11
The ENs to Heading 8424 provide:

Spray guns and similar hand controlled appliances are usually designed for
attaching to compressed air or steam lines, and are also connected, either directly
or through a conduit, with a reservoir of the material to be projected. They are
fitted with triggers or other valves for controlling the flow through the nozzle,
which is usually adjustable to give a jet or more or less divergent spray. They are
used for spraying paint or distemper, varnishes, oils, plastics, cement, metallic
powders, textile dust, etc.. They may also be used for projecting a powerful jet of
compressed air or steam for cleaning stonework in buildings, statuary, etc.

Explanatory Note 84.24(B) (2003).

14
to the fact that in discovery Plaintiff affirmatively concluded that its products “are not paint

sprayers” and do not work like “paint sprayers” and that Plaintiff has offered no evidence that its

painting devices act as paint sprayers. Id. at 18 (citing Interrogatory no. 29, Defendant’s

Appendix, Tab H). Defendant further refutes that Wagner products propel liquid onto a surface,

arguing that the products instead cause the paint to flow through the holes of the applicator, and

contrary to a paint sprayer, do not break down the paint into fine particles that are “thrown,

scattered or strewn” out of the product. Id. at 19; see also Defendant’s Reply at 12. Defendant

also notes that in order for Wagner products to be prima facie classifiable in Heading 8424, the

product as a whole is at issue and not only the way in which liquid is expressed from the product.

Defendant’s Motion at 20.

Plaintiff’s assertion that the subject merchandise is appropriately classified as a “spray

painter” is contradicted by Plaintiff’s statement in response to Defendant’s interrogatories, that

paint is “dispersed only from the roller core and onto the roller (or pad),” and the paint

distributed from the roller to the surface is achieved by means of “friction and surface tension.”

Defendant’s Appendix, Tab H, Pl.’s Response to Def.’s First Interrogatories and Request for

Production at 14-15 (November 15, 2006). More importantly, if Plaintiff’s proposed designation

were accepted, Heading 8424 would include all paint rollers and pads because all such products

are designed to project, disperse, or spray liquids in order to achieve the objective of getting paint

on a surface. However, since there is a separate paint roller provision in the HTSUS which is a

more specific designation of the article, such a designation is preferred. The Explanatory Notes

to GRI 3 provide that a description “by name is more specific than a description by class.”

15
Explanatory Note, Rule 3(a) (2003). Mechanical goods for the purpose of “projecting, dispersing

or spraying liquids” clearly refer to a class of goods, whereas “paint pads” and “paint rollers” are

a designation of goods by name. Wagner’s attempt to distinguish its products from traditional

paint pads and rollers is not persuasive because it is well established that even improved versions

of the goods may be covered by the eo nomine designation of the article. See, e.g, Casio, 73 F.3d

at 1098. In its Reply, Wagner elaborates on how its products fit the mechanical description of

Heading 8424, still ignoring the fact that even under a GRI 3(a) analysis, a more specific heading

is preferred, which in this case is Heading 9603.

D
Wagner Products are Not Precluded from Classification Under
Heading 9603 by Bausch & Lomb, Inc. v. United States

Wagner argues that its products are precluded from classification under Heading 9603

because case law has narrowly construed this heading to include only brushes, rollers and pads as

separate items, and not appliances that incorporate rollers and pads. Plaintiff’s Motion at 20.

Plaintiff’s argument is based on the Federal Circuit’s holding in Bausch & Lomb, in which the

court held that electrical toothbrushes were excluded from classification under Heading 9603,

and that only if the brush was imported separately would it fall under this provision. Bausch &

Lomb, 148 F.3d at 1367. Plaintiff argues that this supposed limitation on the scope of the

provision is further supported by the Explanatory Notes to Heading 9603. Plaintiff’s Motion at

21. Wagner also argues that the existence of other HTSUS headings covering different types of

paint rollers is indicative that not all products that incorporate paint rollers are within the scope

of Heading 9603. Id. at 22.

Defendant counters that Bausch and Lomb concerned language in Heading 9603

16
pertaining only to “brooms and brushes” and that the court’s decision was appropriate given the

nature of merchandise at issue. Defendant’s Motion at 14-15.

Heading 9603 contains four distinct groupings of merchandise separated by semicolons,

which in tariff provisions “create a wall around each grouping of items, preventing the qualifying

language from one grouping from applying to another.” JVC Co. of Am. v. United States, 23 CIT

523, 62 F. Supp. 2d 1132, 1136 (1999), aff’d 234 F.3d 1348 (Fed. Cir. 2000). Heading 9603

provides for the following four categories of merchandise: (1) “Brooms, brushes (including

brushes constituting parts of machines, appliances or vehicles), hand-operated mechanical floor

sweepers, not motorized, mops and feather dusters;” (2) “prepared knots and tufts for broom or

brush making;” (3) “paint pads and rollers;” (4) “squeegees (other than roller squeegees).”

HTSUS Heading 9603. The fact that brushes imported separately from machines, appliances or

vehicles are appropriately classified in Heading 9603, does not give rise to the conclusion that

only paint rollers and pads imported separately from machines, appliances or vehicles are

covered by this provision. Furthermore, nothing in the Explanatory Notes to Heading 9603

expressly excludes paint pads or rollers with other features in addition to the applicator and

handle. As a result, Plaintiff’s argument is at odds with the canons of statutory construction and

misapplied to the tariff provision at issue.

V
CONCLUSION

For the foregoing reasons Plaintiff’s Motion for Summary Judgment is denied and

Defendant’s Motion for Summary Judgment is granted. Accordingly, Customs’ classification of

Wagner products, Paint-N-Roll, PaintMate Plus, StainMate and Trim-It in HTSUS Heading

17
9603, Subheadings 9603.40.2000 and 9603.40.4020 is affirmed.

__/s/ Evan J. Wallach___

Evan J. Wallach, Judge

Dated: May 4, 2007
New York, New York

18
 UNITED STATES COURT OF INTERNATIONAL TRADE

______________________________________
:
WAGNER SPRAY TECH :
CORPORATION, INC., :
:
: Before: WALLACH, Judge
Plaintiff, : Court No.: 04-00521
:
v. :
:
UNITED STATES, :
:
Defendant. :
______________________________________:

ORDER AND JUDGMENT

This case having come before the court upon the Motion for Summary Judgment filed by
Plaintiff Wagner Spray Tech Corporation, Inc. (“Plaintiff’s Motion”), and the Cross Motion for
Summary Judgment filed by Defendant United States Government (“Defendant’s Motion”); the
court having reviewed all papers and pleadings on file herein, having heard oral argument by
each party, and after due deliberation, having reached a decision herein; now, in conformity with
said decision, it is hereby

ORDERED, ADJUDGED and DECREED that Plaintiff’s Motion is DENIED; and it is
further

ORDERED, ADJUDGED and DECREED that Defendant’s Motion is GRANTED; and it
is further

ORDERED, ADJUDGED and DECREED that the imported items at issue in this case are
properly classified under Heading 9603, Subheadings 9603.40.2000 and 9603.40.4020 of the
Harmonized Tariff Schedule of the United States (2003), at a duty of 7.5% and 4% ad valorem;
and it is further

ORDERED, ADJUDGED and DECREED that judgment be, and hereby is, entered in
favor of Defendant and against Plaintiff.

__/s/ Evan J. Wallach__
Evan J. Wallach, Judge

Dated: May 4, 2007
New York, New York