United States Court of Appeals 

for the Federal Circuit ______________________ 

GRK CANADA, LTD.,

Plaintiff-Appellee,

v.

UNITED STATES,

Defendant-Appellant.

______________________ 

2013-1255

______________________ 

Appeal from the United States Court of International 

Trade in No. 09-CV-0390, Senior Judge Judith M. Barzilay.

______________________ 

ON PETITION FOR REHEARING EN BANC

______________________ 

CRAIG E. ZIEGLER, Montgomery, McCracken, Walker 

& Rhoads, LLP, of Philadelphia, Pennsylvania, filed a 

petition for rehearing en banc for plaintiff-appellee. 

JASON M. KENNER, Trial Attorney, International 

Trade Field Office, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, of New 

York, New York, filed a response for defendant-appellant. 

With him on the response were JOYCE R. BRANDA, Acting 

Assistant Attorney General, JEANNE E. DAVIDSON, Director, and AMY M. RUBIN, Assistant Director. Of counsel on 

the response was BETH C. BROTMAN, Office of the Assis-
2 GRK CANADA, LTD. v. US

tant Chief Counsel, International Trade Litigation, United States Bureau of Customs and Border Protection, of 

New York, New York.

______________________ 

Before PROST, Chief Judge, NEWMAN, LOURIE, 

CLEVENGER,1 DYK, MOORE, O’MALLEY, REYNA, WALLACH,

TARANTO, and CHEN, Circuit Judges.2

NEWMAN, Circuit Judge, dissents from the denial of 

the petition for rehearing en banc without opinion.

REYNA, Circuit Judge, with whom WALLACH, Circuit 

Judge, joins, dissents from the denial of the petition for 

rehearing en banc.

WALLACH, Circuit Judge, with whom REYNA, Circuit 

Judge, joins, dissents from the denial of the petition for 

rehearing en banc.

PER CURIAM. 

O R D E R

A petition for rehearing en banc was filed by plaintiffappellee GRK Canada, Ltd., and a response thereto was 

invited by the court and filed by defendant-appellant 

United States. The petition was first referred as a petition for rehearing to the panel that heard the appeal, and 

thereafter, the petition for rehearing en banc was referred 

to the circuit judges who are authorized to request a poll 

of whether to rehear the appeal en banc. A poll was 

requested, taken, and failed.

Upon consideration thereof,

IT IS ORDERED THAT: 

(1) The petition for panel rehearing is denied.

(2) The petition for rehearing en banc is denied.
GRK CANADA, LTD. V. US 3

(3) The mandate of the court will issue on December 

15, 2014. 

 FOR THE COURT

December 8, 2014 /s/ Daniel E. O’Toole

 Date Daniel E. O’Toole 

 Clerk of Court

1 Circuit Judge Clevenger participated only in the 

decision on the petition for panel rehearing. 2 Circuit Judge Hughes did not participate.

 
United States Court of Appeals 

for the Federal Circuit ______________________ 

GRK CANADA, LTD.,

Plaintiff-Appellee,

v.

UNITED STATES,

Defendant-Appellant.

______________________ 

2013-1255

______________________ 

Appeal from the United States Court of International 

Trade in No. 09-CV-0390, Senior Judge Judith M. Barzilay.

______________________ 

REYNA, Circuit Judge, with whom WALLACH, Circuit 

Judge, joins, dissenting from the denial of the petition for 

rehearing en banc.

For the reasons set forth in GRK Canada, LTD. v. 

U.S., 761 F.3d 1354, 1361–66 (Fed. Cir. 2014) (Reyna, J., 

dissenting), I respectfully dissent from this Court’s denial 

of the petition for rehearing en banc. 
United States Court of Appeals 

for the Federal Circuit ______________________ 

GRK CANADA, LTD., 

Plaintiff-Appellee,

v.

UNITED STATES, 

Defendant-Appellant.

______________________ 

2013-1255

______________________ 

Appeal from the United States Court of International 

Trade in No. 09-CV-00390, Senior Judge Judith M. Barzilay.

______________________ 

WALLACH, Circuit Judge, with whom REYNA, Circuit 

Judge, joins, dissenting from the denial of the petition for 

rehearing en banc. 

This court has consistently analyzed the headings of 

the Harmonized Tariff Schedule of the United States 

(“HTSUS”) by first determining whether the heading is 

defined by name or by use, and then applying the corresponding classification analysis. This analysis is required 

not only by our case law, but by the HTSUS itself, a 

statutory enactment that contains contrasting interpretative frameworks for each type of heading. Indeed, classification is governed by the General Rules of 

Interpretation (“GRI”) and the Additional United States 

Rules of Interpretation (“ARI”), which are part of the 
2 GRK CANADA, LTD. v. US

HTSUS statute. BenQ Am. Corp. v. United States, 646 

F.3d 1371, 1376 (Fed. Cir. 2011).

The majority opinion in GRK Canada, Ltd. v. United 

States (GRK II), 761 F.3d 1354 (Fed. Cir. 2014), impermissibly departs from this required framework by incorporating elements of a use analysis into its analysis of an 

eo nomine heading without providing a justification why 

an exception should be made in this case. In doing so, the 

majority opinion creates a conflict within our classification cases and confuses what should be a pronounced 

distinction between eo nomine and use headings. For 

these reasons, this case should be reconsidered en banc. I 

respectfully dissent from this court’s contrary ruling.

I. 

The two distinct types of headings in the HTSUS, eo 

nomine and use provisions, require different analyses. 

Compare Kahrs Int’l, Inc. v. United States, 713 F.3d 640

(Fed. Cir. 2013) (eo nomine analysis), with Aromont USA, 

Inc. v. United States, 671 F.3d 1310 (Fed. Cir. 2012) 

(principle use analysis). This court “consider[s] a HTSUS 

heading or subheading an eo nomine provision when it 

describes an article by a specific name.” CamelBak 

Prods., LLC v. United States, 649 F.3d 1361, 1364 (Fed. 

Cir. 2011); see also Black’s Law Dictionary 265 (9th ed. 

2009) (The term “eo nomine” means “by or in that 

name.”).

In an eo nomine analysis, the court first construes the 

headings at issue as a matter of law by enumerating and 

defining each named element of the headings; the court 

then moves to the second classification step, a factual 

inquiry, to determine whether the subject merchandise 

fulfills each element of a properly-construed heading. See, 

e.g., R.T. Foods, Inc. v. United States, 757 F.3d 1349 (Fed. 

Cir. 2014); Link Snacks, Inc. v. United States, 742 F.3d 

962 (Fed. Cir. 2014). By contrast, the ARIs govern classification of imported merchandise under use headings. In 
GRK CANADA, LTD. v. US 3

a use analysis, the court first construes the headings at 

issue by defining the uses of the goods described by the 

heading as directed by ARI 1(a) for principal use headings 

or by ARI 1(b) for actual use headings. For principal use 

headings, the court then determines the principal use of 

the subject merchandise by analyzing the goods using the 

so-called Carborundum factors to determine whether they 

fall within one of the headings. See, e.g., Aromont, 671 

F.3d at 1313–14 (citing United States v. Carborundum 

Co., 536 F.2d 373, 377 (CCPA 1976)). 

Mindful of these distinctions, consideration of use in 

an eo nomine analysis is an exception, and, indeed, a very 

limited one. See Kahrs, 713 F.3d at 646 (Fed. Cir. 2013) 

(“[W]e should not read a use limitation into an eo nomine 

provision unless the name itself inherently suggests a 

type of use.”) (emphasis added); see also Carl Zeiss, Inc. v. 

United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999) (“[A] 

use limitation should not be read into an eo nomine provision unless the name itself inherently suggests a type of 

use.”) (emphasis added).

Nonetheless, the majority opinion appears to question 

our longstanding definition of eo nomine provisions when 

it attributes the following quotation to the United States 

Court of International Trade’s (“CIT”) opinion under 

review: “[The CIT] noted that the subheadings were eo 

nomine provisions and that, as such, they described ‘an 

article by a specific name, not by use.’” GRK II, 761 F.3d 

at 1356 (quoting GRK Can., Ltd. v. United States (GRK I), 

884 F. Supp. 2d 1340, 1345 (Ct. Int’l Trade 2013)) (emphasis in original). However, the majority opinion fails to 

acknowledge the CIT was directly and accurately quoting 

this court’s case law. See GRK I, 884 F. Supp. 2d at 1345 

(“The subheadings are eo nomine provisions, or more 

simply, provisions ‘that describe[ ] an article by a specific 

name, not by use.’”) (quoting Aromont, 671 F.3d at 1312) 

(citing CamelBak, 649 F.3d at 1364). The CIT’s characterization reflects how our cases define eo nomine provi-
4 GRK CANADA, LTD. v. US

sions—by distinguishing them from use provisions. See, 

e.g., Aromont, 671 F.3d at 1312 (“[T]his heading is an eo 

nomine provision, that is, a provision that describes an 

article by a specific name, not by use.”) (emphasis added); 

BASF Corp. v. United States, 497 F.3d 1309, 1315 (Fed. 

Cir. 2007) (same); Carl Zeiss, 195 F.3d at 1379 (same).

Further, the majority opinion makes the following unsettling declaration: 

[U]se of subject articles may, under certain circumstances, be considered in tariff classification 

according to eo nomine provisions. This may occur at the stage of establishing the proper meaning of a designation when a provision’s name 

“inherently suggests a type of use.” Or, once tariff 

terms have been defined, it may be the case that 

the use of subject articles defines an articles’ identity when determining whether it fits within the 

classification’s scope.

GRK II, 761 F.3d at 1359 (quoting Carl Zeiss, 195 F.3d at 

1379). Not only is this more permissive rule contrary to 

our case law, it also blurs the distinction between the 

legal question of what the subheadings cover—a pure 

question of law analyzed in a vacuum without regard to 

the particular merchandise involved in the case—and the 

factual second step of determining whether the goods fall 

within that properly-construed heading.

More troubling is the majority opinion’s explicit endorsement of a use analysis and adoption of the ARIs in 

the context of an eo nomine heading: 

[U]se may be considered as part of the definition 

of eo nomine provisions, where, even if the eo nomine provision describes goods with respect to their 

names, the name itself may “inherently suggest[ ] 

a type of use.” . . . Classification of subject articles 

may then need to reach the [ARIs], which distin-
GRK CANADA, LTD. v. US 5

guish the treatment of articles based on whether 

tariff classifications are controlled by principal or 

actual use.

Id. (quoting Carl Zeiss, 195 F.3d at 1379) & n.2. Any

suggestion that the ARIs may need to be reached in the 

context of an eo nomine analysis is foreign to our classification case law, and conflicts with the clear statutory 

language of the ARIs. See, e.g., Dependable Packaging 

Solutions, Inc. v. United States, 757 F.3d 1374, 1378 (Fed. 

Cir. 2014) (“All the relevant HTSUS headings in this case 

are principal use provisions, which are governed by ARI

1(a).”); Aromont, 671 F.3d at 1312 (“Principal use provisions are governed by ARI 1(a).”); see also ARI 1(a) (“[A]

tariff classification controlled by use . . . is to be determined in accordance with the use in the United States at, 

or immediately prior to, the date of importation, of goods 

of that class or kind to which the imported goods belong, 

and the controlling use is the principal use.”) (emphasis 

added); ARI 1(b) (“[A] tariff classification controlled by the 

actual use to which the imported goods are put in the 

United States is satisfied only if such use is intended at 

the time of importation, the goods are so used and proof 

thereof is furnished within 3 years after the date the

goods are entered.”). 

In addition, the majority opinion repeatedly references “intended use,” “predominant use,” and “primary 

use” within the context of its eo nomine analysis. GRK II, 

761 F.3d at 1358–60. This exemplifies the rampant 

confusion among actual use, intended use, and principal 

use. These are terms of art governed by the ARIs, and are 

not synonymous or interchangeable. Existing confusion 

should be left to cases involving use provisions, and not be 

allowed to infiltrate our eo nomine cases. See Aromont, 

671 F.3d 1310, 1313 (discussing the differences between 

principal use and actual use).
6 GRK CANADA, LTD. v. US

II. 

In support of its holding that use plays a proper role 

in the eo nomine analysis, the majority opinion relies 

heavily on the Court of Customs and Patent Appeals’ 

(“CCPA”) 1959 decision in United States v. Quon Quon 

Co., 46 CCPA 70 (1959), ignoring this court’s contemporary classification cases, such as Link Snacks, 742 F.3d 

962, Kahrs, 713 F.3d 640, BASF, 497 F.3d 1309, et al. 

Although the majority opinion acknowledges that “Quon 

Quon is a case determined under the old [Tariff Schedule 

of the United States (‘TSUS’)] that has now been replaced 

by the HTSUS,” GRK II, 761 F.3d at 1358, the opinion 

fails to recognize the crucial point that the statutory 

interpretative framework required by the contemporary 

HTSUS, namely, the GRIs and the ARIs, did not govern 

interpretations of TSUS. While this court has acknowledged that “TSUS cases may be instructive in interpreting identical language in the HTSUS,” JVC Co. of Am., 

Div. of US JVC Corp. v. United States, 234 F.3d 1348, 

1355 (Fed. Cir. 2000) (emphases added), such cases are 

not helpful in defining an interpretative framework that 

did not exist under the TSUS. Not only are the GRIs and 

ARIs part of the HTSUS statute, this court has made 

clear they govern the classification of merchandise. 

BenQ, 646 F.3d at 1376. 

The majority opinion’s characterization of Quon Quon

and similar TSUS cases is also not entirely accurate. The 

opinion states: “In TSUS cases, courts had considered the 

use of articles in interpreting eo nomine provisions.” GRK 

II, 761 F.3d at 1356. No citation is given for this proposition because even under the TSUS it was uncommon for 

use to be considered in the eo nomine analysis. In Quon 

Quon, for example, the CCPA took issue with the Government’s argument that “since the merchandise comes 

within the meaning of [an eo nomine] term, its actual use

is immaterial.” Quon Quon, 46 CCPA at 72 (emphasis 

added). The court found “no support in [other TSUS] 
GRK CANADA, LTD. v. US 7

cases for the allegation that use is immaterial because the 

designation is eo nomine.” Id. In support, the CCPA 

identified three out of “numerous cases” cited by the 

Government where “use [was] an important factor in 

determining classification though an eo nomine designation [was] involved.” Id. Thus, beyond its inapplicability 

to this case, Quon Quon stands only for the narrow proposition that, as a limited exception, use can sometimes be 

considered in the eo nomine analysis. In this way, the 

CIT’s conclusion that it “cannot support this instance of 

reading use into an eo nomine tariff provision under the 

HTSUS,” GRK, 884 F. Supp. 2d at 1353 (emphasis added), 

does not conflict with Quon Quon; it recognizes that use 

may be an appropriate consideration in other instances. 

III. 

To be sure, there are limited circumstances where this 

court has considered use in the eo nomine analysis, such 

as those described in CamelBak, a unique case among our 

classification cases that has led to some confusion as to 

the role of use in the eo nomine analysis. In CamelBak, 

this court acknowledged that an eo nomine provision 

“‘include[s] all forms of the named article[,]’ even improved forms.” CamelBak, 649 F.3d at 1365 (quoting Carl 

Zeiss, 195 F.3d at 1379). Nonetheless, the court articulated a test to determine when an additional component or 

function of an article, otherwise named by an eo nomine 

provision, so significantly transforms the article that it is 

no longer prima facie classifiable under the eo nomine 

heading. Thus, CamelBak describes the exceptional case 

where a good that was classifiable in an eo nomine heading undergoes “a change in identity [that] removes [the] 

article from an eo nomine provision.” Id. at 1367; id. at 

1369 (“[T]he hydration component of the subject articles is 

not merely incidental to the cargo component but, instead, 

provides the articles with a unique identity and use that 

removes them from the scope of the eo nomine backpack 

provision.”). To aid in this inquiry, CamelBak went on to 
8 GRK CANADA, LTD. v. US

identify “several analytical tools or factors [used] to assess 

whether the subject articles are beyond the reach of [an] 

eo nomine . . . provision,” which include the design, use, 

and function of the subject articles. Id. at 1367. Yet, 

CamelBak’s discussion of “use/function” and “design” was 

in the context of this significant transformation test, and 

this discussion cannot be read to obscure the difference 

between eo nomine and use provisions. Id. at 1367–68.

Thus, consideration of use in the eo nomine analysis 

is a narrow exception that has rarely been used by this 

court.1 Indeed, if an eo nomine heading did “inherently 

suggest[] a type of use,” it would be proper to convert it to

a use provision. See StoreWALL, LLC v. United States, 

644 F.3d 1358, 1365–67 (Fed. Cir. 2011) (Dyk, J., concur1 In addition to Quon Quon and CamelBak, the majority opinion finds support for its position from one other 

case: Len-Ron Mfg. Co., Inc. v. United States, 334 F.3d 

1304, 1311 (Fed. Cir. 2003), a sui generis case in which 

this court may have applied an exception; it is unclear. 

This court affirmed the CIT’s proper construction of the eo 

nomine heading “vanity case,” but added a clarification 

that reads like a use limitation: “In affirming the [CIT’s] 

conclusion that ‘vanity case’ means ‘a small handbag or 

case used to hold cosmetics,’ however, we clarify that for a 

handbag or case to be classified as a vanity case, containing, carrying, or organizing cosmetics must be its predominant use, rather than simply one possible use.” Id. 

Thus, despite undertaking an eo nomine analysis, the 

court in this instance relied on an analysis used only for 

use headings. Indeed, in support of its analysis, the court 

cited Sports Graphics, Inc. v. United States, 24 F.3d 1390, 

1393–94 (Fed. Cir. 1994). Not only was Sports Graphics a 

case involving a use provision, the heading at issue was a 

“chief use” provision of the TSUS. “Chief use” headings 

no longer exist in the HTSUS.

 
GRK CANADA, LTD. v. US 9

ring). Therefore, if, as the majority holds, the subheadings at issue are truly defined by use, the majority should 

have reconsidered the parties’ legal stipulation that the 

relevant subheadings are eo nomine. A narrower holding 

that, although the subheadings appear to be eo nomine, 

they are as a matter of law use provision governed by the 

use analysis, would have avoided disruption of our wellsettled precedent.

IV. 

Cognizant of these issues, in its Petition for Rehearing 

En Banc, GRK recognizes that “the majority decision of 

the panel improperly—and contrary to well-established 

and longstanding precedent of this Court—introduced an 

‘intended use’ analysis into the analytical framework for 

construing eo nomine classifications, which is only appropriate for those classifications that are defined by how 

they are used.” Pet. at 2. It also recognizes “[t]he majority decision is directly contrary to numerous precedents of 

this Court” and “[b]y requiring considerations of ‘use’ even 

with eo nomine provisions, it unnecessarily blurs (if not 

erases entirely) the well-established, and crucial, distinction between eo nomine provisions and ‘use’ provisions—

each of which employs, according to this Court’s precedents, a different analytical framework.” Id. at 11.

In an attempt to downplay the importance of the distinction between use and eo nomine provisions, the Government suggests that “GRK’s petition confuses the Panel 

Majority’s discussion of intended use with the term of art 

‘principal use.’” Resp. at 2. Furthermore, it states, “GRK 

and the Panel Dissent misconstrue the Panel Majority’s 

Opinion. Although the Panel Majority referred to ‘the 

material that screws are principally intended to pass 

through,’ and used the phrase ‘principal intended use’ 

. . . , the Panel Majority did not direct the trial court to 

undertake a principal use analysis.” Id. at 4 (citations 

omitted).
10 GRK CANADA, LTD. v. US

The Government’s argument ignores the majority 

opinion’s explicit statement endorsing a use analysis. See 

GRK II, 761 F.3d at 1359 (“[U]se may be considered as 

part of the definition of eo nomine provisions . . . . Classification of subject articles may then need to reach the 

[ARIs], which distinguish the treatment of articles based 

on whether tariff classifications are controlled by principal or actual use.”). This explicit directive that the ARIs, 

which are unquestionably used only in the use analysis, 

may be reached, refutes the Government’s argument that 

“the Panel Majority did not order the trial court to conduct a principal use analysis on remand. It in no way 

directed the trial court to apply ARI 1(a).” Resp. at 5.

V. 

A final concern with the majority opinion is that it is 

unclear whether the correct analysis was performed or 

whether the correct standard of review was applied. It is 

well-established that classification decisions involve a 

two-step analysis: (1) ascertaining “the proper meaning of 

the tariff provisions, which is a question of law reviewed 

de novo”; and (2) determining “whether merchandise falls 

within a particular heading, which is a question of fact we 

review only for clear error.” Lemans Corp. v. United 

States, 660 F.3d 1311, 1315 (Fed. Cir. 2011) (citing Cummins Inc. v. United States, 454 F.3d 1361, 1363 (Fed. Cir. 

2006)). It is also well-settled that when “the nature of the 

merchandise is undisputed, the inquiry collapses into a 

question of law we review de novo.” Id. While the majority opinion correctly articulates the two-step process, it is 

unclear whether “the nature of the merchandise is undisputed” in this case, and, if so, whether only a question of 

law remains. 

Instead, the opinion describes at length the CIT’s 

analysis, both in the background and the analysis sections, and notes the errors the CIT made in its decision. 

But this court does not review classification decisions for 
GRK CANADA, LTD. v. US 11

error; rather, it performs a de novo review. In this way, 

the majority opinion fails to answer the legal question of 

the proper construction of the competing subheadings. 

This court has “an independent responsibility to decide 

the legal issue of the proper meaning and scope of HTSUS 

terms.” Link Snacks, 742 F.3d at 965. Although unclear, 

it may be that the majority disagrees with the CIT’s 

construction of the competing subheadings. The opinion, 

however, offers no answer, as a matter of law, on their 

proper construction, other than that the use of the subject 

merchandise involved in this case should have a bearing 

on the legal construction of the subheadings.

In addition to failing to fulfill its responsibility to determine the proper meaning of the competing subheadings, the majority opinion does not identify the governing 

GRI for this case. It faults the CIT for sequentially proceeding through the GRIs, as required by our case law, 

and then “end[ing] up at the rarely used ‘tie-breaker’ step 

of GRI 3(c).” GRK II, 761 F.3d at 1360. However, it is 

unclear which GRI the majority believes should apply. 

That vital question, this court must answer.

As to the majority opinion’s disposition, it does not 

specify whether remand is warranted because (1) there 

are genuine disputes of material fact precluding summary 

judgment, such that the CIT erred in granting summary 

judgment and the case should be remanded for trial; (2) 

there was legal error in the construction of the subheadings; and/or (3) there was clear error in the factual findings. The grounds for vacation must be specified if we are 

to provide any guidance on the issues involved in this 

case.

VI. 

It is evident that this is indeed “‘a challenging case.’” 

GRK II, 761 F.3d at 1356 (quoting GRK I, 884 F. Supp. 2d 

at 1345). In disagreeing with the CIT’s ultimate classification conclusion, however, the opinion undermines our 
12 GRK CANADA, LTD. v. US

case law requiring a distinction between use and eo 

nomine provisions without articulating whether an exception applies in this case, or whether the subheadings at 

issue should be properly reclassified as use provisions at 

the beginning of the analysis.

Because the majority opinion upends a once-clear analytical framework and will breed confusion in future 

cases, the concerns raised are “of exceptional importance” 

and “en banc consideration is necessary to secure or 

maintain uniformity of the court’s decisions.” See Fed. R. 

App. P. 35(a). Therefore, I respectfully dissent from the 

court’s refusal to reconsider this case en banc.