Slip Op. 02-57

UNITED STATES COURT OF I NTERNATIONAL

TRADE

_____________________________________ : 

### T HE 

### P OMEROY 

### C OLLE CTION 

### , I NC 

### ., : Plaintiff , : v. Court No. 99-02-00096

: 

### U NITED 

### S TATES 

### , : Defenda nt. _____________________________________ : [Plaintiff’s motion for summary judg ment den ied, Defendant’s cross-motion for summary judgment granted, and action dismissed.] Decided: June 19, 2002 Fitch, K ing and Caffent zis ( Peter J. Fitch ), for Plaintiff. Robert D. McCallum, Jr. , Assistant Attorney Gene r al; J oseph I. L iebman , Attorne y in Charge, International Trade Field Office, Commercial L itigation Branch, Civi l D ivision, United States Department of Justice ( Bruce N. Stratvert ); Bet h C. Brotman , Office of Assistant Chief Counsel, I

nternat ional Tra de Li tigation , U.S. Custo ms Servic e, Of Coun sel; for D efenda nt.

OPINION RIDG WAY, Judge : This case is b efore t

he Court o n cross- motions for summary judgmen t. Plaint iff Pomeroy Co llect ion, Inc. (“Pomeroy ”) challenges the decision of the United States Customs Service (“Customs”) denying

Pomeroy’s protests conc erning the tariff classifi cation of

certain mercha ndise im ported from Mexico in 1997 and described on the invoice as “Medium Romano Floo r La mp s Rustic.” Customs classifi ed the me rchandi se as dec orative

glass a rticles – specifically, “ [g]lasswareCourt No. 99- 02-00096 Pag e 2

1 Sp ec if ic al ly, subheading 7013.99.90 covers “[g]lassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than tha t of heading 7010 or 7018): Other glassware: Other: Other: Other: Value d over $3 each: Other: Valued over $5 ea ch.” Subheading 7020.00.60 covers “[o]ther articles of glass: Other.” Both the classified and clai med tariff provisions in this case are properly preceded by

the prefix “MX,” to indicate that the goods qualify

for the duty rate applica

ble to products of Mexico. See Plaintiff

’s Memora

ndum I n Support o f Its

Motion For Summary Judgment (“ Plaintiff’s Brief”) at 2 n .2. Howe

ver, the prefix is ot

herwise irrelev ant to this c lassific ation ana lys is, and is omitte d throughout the opinion. Si mi la rl y, at the time of entry, subhe ading 7020.00.60 was desig nated 702 0.00.00, H TSUS. But that change too is of

no moment here. See Plaintiff’s Brief at 2 n.2; Defendant’s Memorandum In Support of Its Motion For Summary Judgment and In Opposition to Plaintiff’s Motion For Summary Judgment (“Def endant’s Brief”) at 1 n.1.

2 Pomeroy’s Complaint a

lleged , as an al

ternativ e theory

, that t he merc handise a

t issue is properl y classifiable as “statuettes and other ornaments, of base metal,” under subheading 8306.29.00, HTSUS, also duty-free

. See Complaint ¶ ¶ 6, 16, 17 . Howeve

r, as disc ussed in note 7 below, Pom eroy

has larg ely

abandon ed that a

rgumen t in its brie fs. of a kind used for

. . . indoor decoration or similar purposes,” under subheading 7013.99.90 of the Harmonized

Tariff Schedule of the United States (“HTSUS”) (1997)– and asse ssed dutie s at the ra te of 5.2% ad valorem

. Pomeroy contends that the goods instead are properly classifiable as “[o]ther articles of glass,” under subheading 7020.00.60, HTSUS, and are thus duty-f ree. 1 Complaint ¶ 5. 2 Jurisdiction lies under 28 U.S.C. § 1581(a) (1994). Customs’ classifica tion decisions are subject to de novo review pursuant to 28 U.S.C. § 2640 (1994). For the reasons discussed below, Customs properly c lassified the subje ct merch andise a s decora tive gla ss articles, under subheading 7013.99. 90, HTSUS. Accordingly , Pomeroy’s motion for summary judgment is denied, and the Government’s cross-motion is granted.Court No. 99- 02-00096 Pag e 3

3 Alth ough Pomeroy reitera ted in its reply brief

that the p arties a

gree on the facts of the c ase ( see Plaintiff’s Reply Brief at 7), Pomeroy fa

iled to file the required r esponse t o Defendant’s Statement of Additional Material Facts. See USCIT R. 56(h) ( all material facts set forth in movant’s statement of facts de emed to be

admitted “

unless co ntrover

ted by the state ment required to be served by th e o pp os in g p ar ty) (emphasis added). In a ny event, whe

ther by virtue

of Pomeroy’s statement in its reply brief, or by

virtue of its failure to respond to Defendant’s Statement of Additional Material Facts, a

ll materia l facts set forth in Defendant’s Statement are deemed to be admitted. See United States v. Continental Seafoods, Inc. , 11 CIT 768, 672 F. Supp. 1481 (1987). I. Background The merc handise at issue is principally used f or indoor decoration, and consists of two separa te components – a glass vessel with a rounded bottom, and a wrought iron pedestal or stand. See Plaintiff

’s E xhibit 1 (a representative sample of the merchandise at issue) (“ Sample”); Defendant’s Statement of Additional Material Facts As To Which There I s No Genu

ine Disput

e to Be Tried (“ Def.’s S tatement of Add’ l Mat. Facts) ¶¶ 1, 3; Plaintiff’s Brief at 6-7 (indica ting agreement

with Customs’ description of function of merc handise) ; Plaintiff ’s Reply to Defendant’s Memorandum

In Support of I

ts Motion F or Summar y Judgment and I n Opposition to Plaintiff’s Motion for Summary Judgment (“Plaintiff’ s Reply Brief ”) at 7 (noting “the agree

ment of the parties

as to the facts”); 3 Plaintiff ’s Stateme

nt of Mate

rial Fa cts As to Which There Are No Genuine I ssues to Be Tried (“Pl.’s Statement of Mat. Facts”) ¶¶ 2, 3; Defendant’s Response to Plaintiff’s Statement of Materia l Facts A s to Which Th ere Are No Genuine Iss

ues to Be Tried (“ Def.’s R

e sp. to Pl .’s Statement of Mat. Facts”) ¶¶ 2, 3. The pedesta

l, which st

ands app roximately

thirty inches hi gh, is designe d to cradle (that is, to hold and su

pport) the glass vessel. See Sample; Plaintiff’s Brief at 6-7; Defendant’s B rief at 5. When i t is inserted in the pedestal, with its open end facing upward, the ve ssel is used to hold aCourt No. 99- 02-00096 Pag e 4

candle or some other object such as flowers, a pl ant, or a bottle of wine. See Sample; Def.’s Statement of Add’l Mat. Facts ¶ 3; Plaintiff’s Reply Brief at 7 (noting

“the agreement of the par ties

as to the facts”); Affidavit of Edward Todd Pomeroy (“Pomeroy Af

f.”) ¶ 5 (although the goods were “designed as candle holders . . . they can be u sed to hold

a variety of articles other than candles”). The rounded bottom of the glass vessel prevents it from standing on its own

or from f unctionin g in its intended manner without the wrought iron pedestal. See Sample; Pl. ’s Stateme nt of Mat. Facts ¶ 3; Def.’s Resp. to Pl.’s Statement of Mat. Facts ¶ 3. A. Customs’ 1994 Ruling Customs’ classifi cation of the merc handise i n th e ins tant case was predicated on a prior rulin g. In that ruling (the

“1994 Ruling”), Customs classified goods – marketed as “f loor candles,” and consisting

of wroug ht iron pe destals a

nd glass vessels – that

were sim ilar in al l materia

l respec ts to the mer

chandise at issue in

this case. H Q 956810 (

Nov. 28, 1 994). The

same glass vessels are used in both articles, and the styles of the wrough t iron ped estals dif fer only slightly. See Pomeroy Aff. ¶¶ 2, 4. In its 1994 Ruling, Customs acknowledged the two se

parate componen

ts of the me

rchandi se (the pedesta

ls and the glass ve ssels), a

nd there fore tre ated the

“floor c andles”

as “composite goods.” HQ 956810 (Nov. 28, 1994). Finding that the g lass vess el is the c omponent t hat fulfi lls the function of the artic le, Customs

determined that it is the glass vessel which imparts its “essential charac ter” to the merchandise. Id . Based on that determination, C ustoms clas sified the “floor candles” as decorative artic l es of gl ass, unde r subhea ding 701 3.99.90, H TSUS – the sa me classi fication

it applied to the merchandise at issue here. Id.Court No. 99- 02-00096 Pag e 5

B. Customs’ 1995 Ruling After Customs’ 1994 ruling, importer T u can International soug ht a ruling on the classification

of such g oods if

the components were imported separately

. See HQ 957413 (Mar. 31, 1995); Pomer oy A ff. ¶ 3. Po meroy contends that the r easoning of this lat

er Customs

ruling ( th e “1995 Ruling”) controls the case at bar. In its 1995 Ruling , Customs determined that – imported separately – the wrought iron pedesta ls are classifiable as “statuet tes an d other ornaments, of base metal,” under hea ding 8306, HTSUS. HQ 957413 (Mar. 31, 1995). As to the gl ass vesse ls, Customs d etermine d that, be cause their rounded bottoms re

nder the m “incap able of standing, or of holding a ny a rticle w ithout the u se of the wrought

ir on pe de st al s a s s up po rt s, ” t he gl as s v es se ls – i mp or te d s ep ar at el y – “are a part of the wrought

iron pedestals with glass vessels.” Id . (emphasis added). Customs concluded that the glass vessels alone could not be classified as decorative articles of glass under

heading 7013, HTSUS

– the classification applied in the 1994 Ruling – because that heading does not provide for parts of decorative glass articles. Id. Customs the refore ruled tha t – importe d separa

tely – the glass ve ssels are properly

classified under 7020.00.00, HTSUS as “[o]ther articles of glass.” Id.

II. Standard of Review Under US CIT Rule 56, summary judgment is appropriate where “there is no genuine issue

as to any mat erial fact an d . . . t he mov ing p ar ty is entitled to [ ] judgment as a matter of law.” US CIT R. 56(c). Customs’ classification decisions are reviewed through a two- step analy sis – first construi n g the rele

vant tar iff hea dings, th en deter

mining un

der whic h of those

heading s th eCourt No. 99- 02-00096 Pag e 6

mercha ndise at issue is properly cla ssified. Bausch & L omb, Inc. v. United States , 148 F.3d 1363, 1365 (Fed. C ir. 19 98) (ci ting Universal Elecs., Inc. v. U nited States , 112 F.3d 488, 491 (Fed

. Cir. 1997) ). Interpretation

of the releva

n t tariff headings is a question of law, while application of the terms to the mer

chandise is a question of fact. See id . Summary judgment is thus appropriate where

– as here – the nature of the merchandise is not in question, and the sole issue is its proper classification. See Bausch & Lomb , supra (it is “clear that summary judgme

nt is appropriate when there is no genuine dispute as to the underly ing factual issue of exactly what the merchandise is”). On review, Customs’ classification rulings are affor ded a measure of deference proportional to their pow er to persuad

e, in accordance with the principles set forth in Skidmore v. Swift & Co. , 323 U.S. 134 (1944). See United States v. Mead Corp. , 533 U.S. 218, 2 34-35 (20 01); Mead Corp. v. United States , 238 F.3d 1342, 1346.

III. Discussion The proper c lassific ation of a ll mercha

ndise is g overned by the General Rules of Interpretation

(“GRIs”), which pr

ovide a framework for classification under the HTSUS, and are to applied in numerical order. See , e.g. , Orlando Food Corp. v. United States , 140 F.3d 1437, 1439 (Fed. Cir. 1998) ; Baxter Healthcare Corp. v. United States , 182 F.3d 1333, 1337 (Fed. Cir. 1997). See generally Pillowtex Corp. v. United States , 171 F.3d 1370, 1374-75 et se q . (Fed. Cir. 1995) (methodic ally

applying the

GRIs in order, in addressing a claim for classification under GRI 3(b), among other theories).Court No. 99- 02-00096 Pag e 7

4 As indicated in no te 1 a bove, heading 7013 expressly excludes glassware covered by headi ngs 7010 and 7018. HTSUS, heading 7013. Heading 7010 covers, in essence, glass containers of the kinds c ommonly

used for the conve

ya nce or pa cking o f produc ts; and heading 7018 covers articles including glass beads, imitation preciou s or semi-

preciou s stones, n

on-prost hetic g lass ey

es, ornamen ts of lamp-worked g lass, and very small microspheres of glass. See HTSUS heading 7010; HTSUS, heading

7018. The

mercha ndise at is sue in th is case cannot be classified under either of those headings. See Def.’s Statement of Add’l Mat. Facts ¶ 7; Plaintiff’s Reply Brief at 7 (indicating parties’ agreement on the fa cts).

5 The Explanatory Notes function as an inter pretative supplement

to the HTSU S. While they “do not constitute controlling legislative history ,” they “ar e intended to clarify

the scope of HTSUS GRI 1 requ ires that goods be classified “accor ding to the terms of the headings and a n y relevant section or chapter notes and, provided such h eadings or notes do not otherwise require, according to the fo llow ing [G RIs 2 th rough 6].” GRI 1. Thus, the first step is to determine whether the headings and notes require a par ticular cl assificat ion. In classify ing the merchandise at issue here, Customs considered two competing heading s – 7013 and 8306. Heading 7013, in relevant part, covers “glassware of a kind used for . . . indoor decoration

or similar purposes.” HTSUS, heading 7013. The merchandise a t issue is used for indoor decoration, and includes a glass vessel which is used to hold a candle or other similar objec t such

as flowers, a plant, or a bottle of wine . Since a p art of the mercha ndise – spe cifical ly, the gla ss vessel – is made of glass, the merchandise prima faci e falls under heading 7013. 4 Heading8 306, in re levant part, covers “statuettes and other orname nts, of base metal.” HTSUS, heading 8306. As the Explanatory Notes for heading 8306 indicate, that heading include s not only “wholly ornamen tal” art icles, bu t also “a rticles whose o nly usefulness is to contain or support othe r de corative articles or to add to their decorative e ffect.” Harmonize d Commodity Description

and Coding System: Explanatory Notes (2d ed. 1996) (“Explanatory Notes”) 83.06. 5Court No. 99- 02-00096 Pag e 8

subhe adings and offer guidance in interpre ting its subheadings.” Mita Copystar Am., I nc. v. United States , 21 F.3d 1079, 1082 (Fed. Cir. 1994) ( citing Ly nteq, Inc. v. United

States , 976 F.2d 693, 699 (Fed. Cir. 1992)). The mercha

ndise her e consist s in

part of a pedestal of wrought iron (a b ase meta

l), which is used to contain or support another decorat ive artic le and to a dd to its de corativ e effe ct. Thus, as both Pomeroy and the G overnme

nt acknow

ledge, the merc

handise i s prima faci

e cla ssifiab le under heading 8306 as well. See , e.g. , Plaintiff ’s Reply Brief a t 6-7 (he ading 8 306 is one of “t he only two classifications to be considered” in classifying merchandise under GRI

3(b) ), 11; Defendant’s Brief at 9-10; Defendant’s Reply Brief In Support

of Motion for

Summary Judgment and I n Opposition to Plaintiff’s Response (“Defendant’s Reply Brief”) at 3-4. The rele vant par t of GRI 2 is GRI 2(b), wh ich provi des: Any reference in a heading

to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substanc e wi th other materia ls or substances. Anyreference [in a heading] to goods of a given material or substance shall be taken to include a refer ence to goods consisting wholly or partly of such material or

substance . The classification of goods consisting of more than one material or substance shall be accor ding to the principles of rule 3. GRI 2(b) (emphasis added). Theref o re, acc ording t

o GRI 2(b), the refer ence to “ base met al” in heading 8306 is read expansively, to embra ce articles consisting

“w ho ll y or pa rt ly” of a base metal, such as wrought iron. Similarly, heading 7013 include s the articles described therein, even if they consist only “partly

” of glassware. But see Explanatory Note 70.13 ( discussed below). GRI 2(b) thus reaff irms that th e mercha ndise in th is case is prima facie classifiable under both heading 7013 and heading 8306. The me rchandise is an article made in part of g lass and used for indoor de coratio n or simila r purpo ses. I

t is also an

ornamen tal artic le made in

part of a baseCourt No. 99- 02-00096 Pag e 9

6 Pomeroy appear s to raise

both arg uments not as objections to the mercha ndise’s prima faci

e classification

under heading 7013, but rather only in the con text of the an alysis under GRI 3(b), discussed below. Ho wever, the arg

uments ar e – at lea st in

some res pects – more potent as objections to prima facie classification under heading 7013, beca use (as discussed in greater deta il below) analy sis under GRI

3(b) is limited to consider ation of th

ose head ings und er which the merc handise is prima facie classifiable. In any event, wher ev er they a

re considered, Pomeroy ’s arguments are unpersuasive. See generally Defendant’s Brief at 12-14 (addressing both arguments, in context of GRI 3(b) analy

sis). metal (specifically , wrought iron). Accordingly , pursuant to the terms of GRI 1 and GRI 2, the mercha ndise at issue is prima facie classifiable both a s “[g]lassware of a kind used for . . . indoor decoration

or similar purposes” under heading 7013, and

as “statu ettes and other or

naments, of base metal” under heading 8306. See HTSUS, hea ding 701 3; HTSUS, heading 8306; GRI 2(b); HT SUS, Section X V, Note

3 (stating that “base metal” includes “iron”) ; Explanatory Note 70.13; Explanatory Note 83.06; De f.’s State

ment of Ad

d’l Mat. Facts ¶

¶ 1-3, 7; Pl aintiff’ s Reply Brief a t 7 (indicating parties’ agreement on the fa cts). While Pomeroy

conced es that the mercha ndise in th

is case is prima faci

e classifiable under heading 8306, Pome

roy argue s – albeit i

n another context – that classification under heading 7013 is preclu ded on two

ground s. 6 First, Pomeroy arg

ues – in essence – that the merchandise cannot be c lassified under heading 7013 becaus e, und er Cus toms ’ 1995 Ruli ng, the glass vessels constitute “parts,” and heading 7013 does not cover parts. See Plaintiff’s Brief at 3, 7-10; Plaintiff’s Reply Br ief at 5-6 (making argument in context of

GRI 3(b) ). But, while it is the glass vessel that implicates the potential classification of the merc handise u nder hea ding 701 3, it

is not the g lass vessel a

lone that is prima faci

e classifi able under that hea ding. Ra ther, it is the artic le as an i

ntegra l whole – th e glass

vessel, t ogethe r with its wrough t iron ped estal. Th e 1995 Ruli

ng is thus irrelev ant.Court No. 99- 02-00096 Pag e 10

Pomeroy also contends that – “quite aside from the q uestion of classifi cation pu

rsuant to GRI 3(b)” – the Explanatory Notes to heading 7013 preclude the classification of the merchandise at issue under that heading. See Plaintiff’s Brief at 10-11. See generally Plaintiff’s Reply Brief at 9-10. The Explan atory

Note in qu estion sta

tes, in pe rtinent pa rt: Articles of glass combined with other materials (base metal, woo d, etc. ), are classified in th is hea ding on ly if the g lass giv es the wh ole the c haract er of g lass article s. Explanatory

Note 70.13 (emphasis in the original). Pomeroy asserts – at least f or this purpose – that “the iron stand

constitutes a substantial and essential part of the article,” such that the article cannot be said to have “the character of [a] gla ss article[ ].” See Plaintiff’s Brief at 10-11; Plaintiff

’s Reply Brief at 9-10. Even a cursor y e xamination o f the mer

chandise belies Pom eroy ’s claim. The pede stal, while complementary

to the gl ass vessel, is subsidiary to it in the context of the merchandise as an integral whole. The pede stal serv es t o elevate the glass ve ssel, and to hold it up right. B ut it is the glass vessel which is the focal point of the article, and which perfor ms the article’s overall function – holding a candle, flowers, a plant, a wine bottle, or some similar object. See Sample. Moreover, as Pomeroy itself has repeat edly acknowl edged

(albeit in the con

text of the G

RI 3(b) analysis, discussed below ), it i s the gla ss vessel

which g ives the me

rchandi se as a w

hole its “essential c haracter.” See Plaintiff’s Brief at 3, 7, 11; Plaintiff’s Reply Brief at 1, 3, 10, 11. Pomeroy’s concess ions conc erning “esse n tial char

acter” further undermin e its arg

ument on th

is point.Court No. 99- 02-00096 Pag e 11

In short, the glass vessel gives th e articl e as a wh ole the c haract er of a g lass vess el, within the meaning of Explanatory Note 70.13. Acc ordingly, nothing in the Explanatory

Notes precludes the prima facie classification of the merchandise at issue under hea ding 7013 (in addition to heading 8306). Be cause

the merc

handise i s prima faci

e classifiable under heading 7013, it can not b e classifi able under he ading 7 020. Hea ding 702 0 is a res idual “ba sket” pr ovision tha

t describ es a category of glas sware n ot c overed elsewhere in Chapter 70, HTSUS. Heading 7020 is therefore “trumped” by heading

7013, another heading in the same chapter which is more specific. See , e.g. , Frankli n v. United States , 289 F.3d 1017 (Fed. Cir. 2002) (reversing classification of

mercha ndise under basket provision, in favor of more specific tariff he ading). The comp eting ta riff pro visions, therefore, are heading s 7013 and 8306; heading 7020 is excluded, by definition. Whe r e, as here , mercha

ndise is “ prima faci

e classifiable under two or more headings,” classifi cation is g overned by G RI 3. G RI 3 pr ovides: When, by application of rule 2(b) or for any

other rea son, goods ar e, prima faci e , classifi able under

two or more hea dings, c lassific ation sha

ll be eff ected a s follows: (a) The heading which provides the most specific description shall be preferred to hea dings provi ding a m ore ge ne ral description. However, when two or

more he adings each refer to pa rt only of the materia ls or substa

nces con tained in . . . compo site goods . . ., those headings are to be reg arded as equally specific . . . . (b) Mixtures, composite goods consisting of different materials or ma de up of diffe

rent com ponents, a

nd goods put up in se

ts for retail sale,

.

. . shall be classified as if they consisted of the material or component which gives them their essential characte r . . . .Court No. 99- 02-00096 Pag e 12

7 On the penultimate page of its reply brief, Pomeroy seeks to hedg e a bit onits oft-repeated admi ssion that it is the glass vessel which imparts its “essential character” to the merchandise at issue. See Plaintiff

’s Reply Brief a t 10. Pomer

oy h ems t hat, w hile it agrees that the glass vessel provides the “essential character” to the mer chandise, it is “of the opinion” that the pedestal “could (c) When goo ds cannot be classified by r eference to 3(a) or 3(b) , they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. GRI 3. Becau se the two competing heading s – headin g 7013 a nd headin g 8306 – e ach ref

er only to part of the co mposite ar

ticle at i ssue, the

exception

to GRI 3(a)’s ru le of

“r el at iv e s pe ci fi ci ty” applies, and the two headings are deeme d equally specific . Analy

sis therefore proceeds to GRI 3(b). GRI 3(b) and its “essential cha racter” test are the primary focus of the parties’ dispute. In its 1994 Ruling, classifying c omposite merchandise virtually ide ntical to that at

issue here, Customs found that the “essential character” of the merc handise w as impart

ed by the gla ss vessel

. Customs reasone d that “[t]he glass ve ssel is the

componen

t which dis tinguish es the ar ticle . . . [T]he glass is the component which fulfills th e functi on of the a rticle; it holds the object or objects to be displayed, such as [ ] flowers, plants, wine bottles, ca ndles, etc.” HQ 956810 (Nov. 28, 1994). So too, in this case, the “essential character” of t he merc handise i s imparte d by the gla ss vessel. Accordingly , as between heading 7013 and heading 8306, Customs classified the mercha ndise here under

heading 7013 – as if

the merc handise “consisted of the . . . component which gives [the composite merchandise its] essential character,” unde r GRI 3(b). While Pomeroy ag

rees that the glass vessel gives the merchandise as a whole its “esse ntial character” ( see , e.g. , Plaintiff’s Brief at 3, 7 , 11; Pla intiff’s Reply Brie f at 1, 3, 10, 11), 7 PomeroyCourt No. 99- 02-00096 Pag e 13

just as well” be co nsidered to do so. Id

. But see Defendant’s Reply Brief at 5 n.10. Pomeroy ’s eleventh-hour

equivocation aside, the merchandise speaks for itself. See Sample. For all the reasons set forth in Cu stom s’ 199 4 Rul ing and s ummarized above, the “essential character” of the mercha ndise is de

rived not from the p edestal , but from the gla ss vessel

. fundame ntally disagr ees with C ustoms’ re sulting c lassif

ication. Pome roy’s objections, howe ver, are

unava ilin g. The gravamen of Pomeroy ’s complaint is that the merchandise here should be classified under the heading 7020. However, as explained above, th e merch andise

is prima facie classifi able under heading 7013, and

so canno t also be c lassifia ble under heading 7020, whic

h is a “ba sket” provision. Becau se the merc

handise i s not prima faci

e classifiable under heading 7020 , that hea ding cannot be considered in the GRI 3(b) analysis. As evidenc ed by the plain lang uage of the rule itself, analy sis under GRI

3 is l imited to th ose head ings und er which mercha ndise is prima faci

e classifiable. See Defendant’s Reply Brief at 4-5 ( citing Pillowtex Corp. v. United States , 171 F.3d 1370 (Fed. Cir. 1999) ). Sp ec if ic al ly, GRI 3( a), (b) and (c) are subordina te to the introductory lang uage of GRI

3, which prefaces and limits the subsections that follow it. Thus , for example, GRI 3(a)’s pointed references to “the heading,” “headings,” and “those headings” clearly refer back to the phrase “unde r two or mor e headi ngs” in the in trodu ctory lan guage of GRI 3. Similarly , GRI 3(c)’s refer ence to “heading” also relates bac k to the introductory lang uage of GRI 3. While GRI 3(b)

does not refer expl i citly to the terms “heading” or “heading s,” GRI 3(b) must be read in pari mate ria with the introductory

langua ge of G RI 3, a s wellas the language of its corresponding subsections – GRI 3( a)Court No. 99- 02-00096 Pag e 14

8 Si gn if ic an tl y, Pomeroy has pointed to no case in which goods have been classified pursuant to GRI 3(b) under some hea ding other than one of the headings unde r which the goods were prima facie classifiable. and GRI 3 (b). GRI

3(b)’s r efere nces to G RI 3(a) and the terms “material” and “component” re flect

a clear in tent to fol low in GRI

3(b) the same sch eme embo died in GRI 3(a) an d 3(c) – t hat is, to consider only those headi

ngs under whi ch the goods at issue are prima facie classifiable. 8 See Defendant’s Reply

Brief at 4 n.8. Moreover, reading GRI 3( b) so as to limit the headings considered to those two or more competing headings under which the g oods are prima faci e classifiable is the only construc tion of GRI 3(b) which harmonizes GRI 3 with GRI 1. If an article we

re classifiable under some heading other than one u

nder whi ch it is prima faci e classifi able, tha

t classif ication w ould viola

te GRI 1, the paramount principle in the proper classification of g oods. See Defendant’s Reply Brief at 5. Pomeroy’s failur e to esta blish that t

he merc handise h ere is prima facie classifiab le unde r heading 7020 is fa

tal to its case, an d obviate s any need to r each its various a rgumen ts under G

RI 3(b). They a

re, in any e

vent, lacking in merit. Invoking Customs’ 19 95 Ruling , Pomeroy argue s – in a nuts hell –

that, under GRI

3(b) , “[i]f the essential character

of the article is imparted by the glass vessel, then it is the classification of the glass vessel alone which will determine the classification of the imported a rticle.” Plaintiff ’s Reply Brief at 5. Pomeroy notes that the “e ssential character” of the merc handise here is imparted by theCourt No. 99- 02-00096 Pag e 15

9 Pomeroy’s other

argument concerning he ading 7013 – its claim that the Explanatory Notes to that hea

ding pre clude cl assifica

tion of the mercha ndise under heading 7013 – is addressed above, in the context of GRI 1 and GRI 2(b). The rationale outlined there applies with equal force, whether Pomeroy’s arg

ument is considered under GRI 1 a nd GRI 2(b), or under

GR I 3( b) . A cc or di ng ly, it is not repeated here. glass vessel, and emphasizes that – under Customs’ 1995 Ruling – th e glass vessel, imported alone, is classified under heading 7020 rather than heading 7013 (which Customs rejecte d because it does not cover “parts”). See , e.g. , Plaintiff’s Brief at 3, 9-10. Pomeroy there fore concludes that GRI 3( b) mandate s that the c omposite me rchandi se here

at issue b e classif

ied under heading 7020 as we ll. But, again, Pomeroy’s relianc e on the 1995 Ruling is misplaced. The fact that heading 7013 does not expressly provide for par ts of glassware is irrelevant beca use – for purposes of classify

ing the composite articles here at issue under GRI 3(b) – the gl ass vessels are not “parts” but, rather, “compone

nts” (and, in fact, the compo nents which impart to the composite articles their “essential character”). 9 In effect, GRI 3(b)

creates a “legal fiction” in which a composite article is classified as if it consists wholly of the component which impar ts the overall good with its “essential character.” See Defendant’s Brief at

13-14 ( citing Better Home Plastics Corp. v. United States , 20 CIT 221, 226, 916 F. Supp. 1265, 1268 (199 6), aff’d , 119 F.3d 969 (Fed. Cir. 1997) ). But that does not mean, as Pomeroy co nten ds, that the composite article is classified the same as one of its parts imported

se pa ra te ly. Indeed, to the contrar y, beca use – un der GRI

3(b) – a c omposite a

rticle a s a whole

is considered

for classification purposes to be made up entirely of one of its components, that component cannot then

logically be

considered a “part”of the composite ar ticle. Under the “legal fiction” of GRI 3(b), the component, in ef fect, is the composite article. See Defendant’s Brief at 13- 14; see also Defendant’s Reply Brief at 6-7.Court No. 99- 02-00096 Pag e 16

It is similarl

y ir releva nt that the

glass ve ssels, whe

n imported

alone, a re clas si f ied under heading 7020 (essentially as re placement “parts” for

the composite articles classified under 7013). A separately -imported glass vessel plainly is not a composite article within the meaning of the statute

. Thus, in c ontrast to the compo site arti cle in the case at bar, the separa tely -importe d gla s s vessel cannot be

classifi ed under

GRI 3 (b) as if

it constitu

ted the wh

ole of a h eading

7013 gla ss article. See generally Defendant’s Brief at 14. Pomeroy appare ntly would re ad GRI

3(b) to r equire t hat a com posite ar ticle must in every

case be class ified the

same as o ne of its c omponent p arts importe d separate ly . But tha t ignore s a fundamental tenet of

customs la

w. It is well es tablished

that, for tariff

purposes , mercha

ndise is to b e class ified in the condition in which it is imported. See United States v. Citroen , 223 U.S. 407 (1912). And the merchandise here at issue is a composite article consisting of both a

wrought iron pedestal and a glass vessel – not a gla ss vessel alone. The same ten et of cus toms law di sp oses of Po meroy ’s arg ument con

cerning dispara te treatme nt. In an effort to support

its position , Pomeroy

points out that Customs’ classification of the composite

merchandise here at issue renders it dutiable, even though the two components – imported separa tely – are duty- free. See Plaintiff’s Reply Brief at 7-8. H owever , noting t hat “[a]n it

em must be evaluated for tariff purposes in its condition as imported,” the C ou rt of Appe als has he ld that, under circumstanc es such as these, the classification sy stem must be enforced as enacted by Congre ss, no matter

how anoma

lous the result. Rollerblade, Inc. v. United States , 112 F.3d 481, 487-88 (Fed. Ci

r.1997) ( involving

case of “tariff inversio n,” uphol ding impo si tion of tariffs on importation of in-line

skate boots, even though boots with skates already attached could be importedCourt No. 99- 02-00096 Pag e 17

duty-free , putting companies assembling goods in the U.S. at a competitive disadvantage) ( quoting Simod Am. Corp. v. United States , 872 F.2d 1572, 1577 (Fed. Cir. 1989) ). Pomero y also accuses the Government of misreading GRI 3(b) by

“mix[ing] up” t h e references to “material” and “component” in that provision. See gen erally Plaintiff’s Brief a

t 5 ; Plaintiff’s Reply

Brief at 4, 7. Pomer

oy a ttempts to p arse the

langua ge of G RI 3( b), in an e ffort to support its centr al thesis –

that the r

efere nce in the

GRI to the “com

ponent” g

iving the overall mercha ndise its “essential character” means that composite g oods should be classified as that component

would be classified

if the component were imported alone. See Plaintiff’s Reply Brief at 3-4. In essence, Pomeroy ’s propos ed reading would split GRI 3(b) into two rules: (1) mixtures would be classifiedas if the good consisted of the material that imparts the good’s essential character; and (2) composite goods would be classified as if they consisted of the compone nt that imparts the good’s essential character

. See Plaintiff’s Reply Brief at 4. But Pomeroy’s eff

ort to “diagra

m” GRI 3 (b) is ill- conceiv ed. As an initial mat

ter, whil e Pomeroy’s strained

interpre tation pur ports to explain th e applic ation of G RI 3(b) to both mixtures and compo site goo ds, GRI 3 (b) also address es the cl assifica

tion of “g oods put up

in sets for reta

il sale.” See GR I 3( b). By a rguing that GRI

3(b)’s reference to “mate rials” relates only

to the classification

of mixtures , and that t

he refe rence t o “compon

ents” relates

only to composi

te good s, Pomeroy is left with no corresponding term in G RI 3(b) which would relate to ( and govern the classification

of) goo ds put up in

sets for retail sa

le. Althou

gh Pomer oy c onvenien

tly s eeks to dismiss “the question of sets” as “not applicable here” ( see Plaintiff’s Reply Brief at 4), the omission is evidence of Pomeroy ’s flawed logic.Court No. 99- 02-00096 Pag e 18

Moreover, as the Go vernmen t notes, th e langua ge of GRI 3( a) contradicts Pomeroy ’s position. GRI 3(a) expressly refers to “the materials or substanc es conta

ined in mixed

or compos ite go ods.” See Defendant’s Reply Brief at 5 n.9 ( referring

to GRI 3(a), emphasis added) . (Indeed, while GRI 3(a) speaks of c om p osite goods, it does not even mention the term “component” – the term which Pomeroy associa tes with composite goods in its as serted interpretation of GRI 3( b), discussed above.)Pomeroy ’s interpretation is further undercut by the se

ntence structure of GRI

3(b), whic h refer s to “compo site goo ds consisting of differe

nt materia ls or made up of different components.” See Defendant’s Reply Brief at 5 n.9 ( referring to text of GRI 3(b), emphasis added). That langua ge too p lainly

demonstr ates tha t composite

goods c an consis t of different materials , as well as different components. To the same effec t is the Expl anatory Note for GRI 3(b), which specific ally

refers to composite goods as consisting of differe nt materials

and diff erent c omponents

. See Defendant’s Reply

Brief at 5 n.9 ( referring to Explanatory Notes at GRI 3(b) ). See also Mita Copystar Am. v. United States , 160 F.3d 710, 712 (Fed. Cir . 1998) (G RI 3( b) “dire cts that comp osite goods made u p of di fferen t comp onent s sho uld b e class ified as tho ugh they consisted of the material or component that gives them their ‘essential chara cter’ ”) (emphasis added). In sum, like its other arguments for classification under he ading 7 020, Pomer oy’ s attempts to parse the language of

GRI 3(b) are simply

unpersuasive.Court No. 99- 02-00096 Pag e 19

IV. Conclusion Applying GRI 3 (b), Custo ms proper ly classified the merchandise at issue as “[g]lassware of

a kind used for . . . indoor d ecoration or similar purposes,” under subheading MX7013.99.90, HTSUS. Pomeroy’s motion f or sum mary

judgmen t is there fore de

nied, and the Gove rnment’scrossmotion is granted. Judgment will be entered accordingly

.

_____________________________________ Delissa A. Ridgway Judge Decided: June 19, 2002 New York, New York