# United States Court of Appeals **for the Federal Circuit**

______________________

DEPENDABLE PACKAGING SOLUTIONS, INC., Plaintiff

- Appellant,

v.

UNITED STATES, Defendant

- Appellee.

______________________

2013

- 1300

______________________

Appeal from the United States Court of International

Trade in No. 10

- CV

- 0330, Judge Richard K. Eaton.

______________________

Decided: July 9, 2014

______________________

P ETER S. H ERRICK , Peter S . Herrick, P.A., of Miami, Florida, argued for plaintiff

- appellant.

E DWARD F. K ENNY , Trial Attorney, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice, of New York, New York, argued for defendant -appellee. With him
on the brief were S TUART F. D ELERY , Assistant Attor ney General, J EANNE E. D AVIDSON , Director, and A MY M.

R UBIN , Acting Assistant Director, Interna tional Trade
Field Office. Of counsel on the brief was S HERYL A.

F RENCH , Office of Assistant Chief Counsel, United States Customs and Border Protection, of New York, New York.DEPENDABLE PACKAGING v. US 2

______________________

Before W ALLACH

, M AYER

, and C HEN

, Circuit Judges.

W ALLACH

, Circuit Judge

. Before the court is Dependable Packaging Solutions, Inc.’s (“Dependable”) appeal regarding the classification of certain types of glass merchandise

. For the reasons set forth below, the holding of the Court of Internatio nal Trade (“CIT”) is affirmed.

B ACK GROUND

Dependable imports and distributes packing, janitor ial, floral, and office supplies, and certain glass items. On May 29

, 2010, Dependable imported certain glass items from the People’s Republic of China and identified them on their respective comme rcial invoices as “Generic Bud
Vases” for the smaller (“bud vases”) and “Generic Tru mpet Vases” (“ trumpet vases”) for the larger (collectively, “the vases” or “the merchandise”). Both types of vases have an inexpensive look and visible seams. When i mport ed, the bud vases were valued at $0.30 or less and the trumpet vases at more than $0.30 but no greater than $3.00.

After importing the vases, Dependable sells them to

mass

- market flower

- packing houses that fill them with
water and flowers. The packing houses then ship the
flower- packed vases to supermarkets or similar retailers,
where the vase and flower combinations are displayed and sold as a single unit. Similar vases are sold empty at
retail. Dependable’s vases are not sold empty at retail, though th ey can be reused.

When the vases were imported, Dependable classified

them under the Harmonized Tariff Schedule of the UnitedDEPENDABLE PACKAGING v. US 3

States (“HTSUS”) 1 7018.90.50. 2 At liquidation, U.S. Customs and Border Protection (“Customs”) classified the
bud vases under HTSUS 7013.99.404 and the trumpet
vases under HTSUS 7013.99.50.5. The vases were thus classified under heading 7013, which provides for “Glas sware of a kind used for

. . . indoor decoration

. . . (other than that of heading 7010 or 7018) .” Specifically, heading 7013 provides, in relevant part:

7013 Glassware of a kind used for table, kitc hen, toilet, office, indoor decoration or simi lar pu rpo s es (other than that of heading 7010 or 7018): Other glassware

7013.99 Other

. . . 7013.99.40 Other:
Valued not over $0.30
each

. . . 38%

7013.99.50 Valued over $0.30 but not over $3 each . . . 30%

(emphasis added).

Dependable timely protested but Customs failed to act
within thirty days, resulting in a deemed denial

. After

the assessed duties were paid, Dependable filed this action in the CIT, abandoning its entered classification under heading 7018.90.50 and asserting both vases
should be classified under HTSUS heading 7010

, which

1 All references to the HTSUS refer to the 2010 ed ition.

2 HTSUS 7018.90.50 covers: “Glass beads, imitation pearls, imitation precious or semiprecious stones and similar glass small wares and article s thereof other than
imitation jewelry; glass eyes other than prosthetic art icles; statuettes and other ornaments o f lamp -worked glass, other than imitation jewelry; glass microspheres

not exce eding 1 mm in diameter:

. . . Other:

. . . Other.”DEPENDABLE PACKAGING v. US 4

includes “c ontainers, of glass, of a kind used for the co nveyance or packing of goods.” In particular, h eading 7010 states, in relevant part:

7010 Carboys, bottles, flasks, jars, pots, vials, ampules and other containers, of glass, of

a k ind used for the conveyance or packing of goods; preserving jars of glass; stoppers, lids and other closures, of glass:

. . . 7010.90 Other

. . . 7010.90.30 Other

. . . 5.2%.

Dependable contended its vases should be classified under
HTSUS 701 0.90.30.

After reviewing both competing headings and co nducting a Carborundum analysis, 3 the CIT determined “ a reasonable jury could only conclude that the vases here are commercially fungible with other inexpensive clear glass vases whose principal use is decorative, rather than with glass packing containers.” Dependable Packaging Solutions, Inc. v. United Stat es , No. 10

- 0330

, 2013 WL 646328, at *9 ( Ct. Int’l Trade Feb. 20, 2013). The CIT accordingly held Customs’ classification was correct and granted summary judgment in favor of the Government. Dependable timely appeal s . This court has jurisdiction
pursuant to 28 U.S.C. § 1295(a)(5) (2012).

3 When, as here, the CIT performs a principal use analysis to determine the proper heading for the imported merchandise, the C IT analyzes several factors, commonly
referred to as the “ Carborundum f actors,” in order to determine which goods are “commercially fungible with the imported goods .” Aromont USA, Inc. v. United States

, 671 F.3d 1310, 1312

– 13 (Fed. Cir. 2012)

.DEPENDABLE PACKAGING v. US 5

D ISCUSSION

I. Standard of Review

This court reviews the CIT’s grant of summary jud gment on tariff classifications de novo. Lemans Corp. v.
United States , 660 F.3d 1311, 1315 (Fed. Cir. 2011);
Cummins Inc. v. United State s , 454 F.3d 1361, 1363 (Fed. Cir. 2006). In assessing Customs’ classification determ inations, this court employs the two

- step analysis used by the CIT: (1) ascertaining “the proper meaning of the tariff provisions, which is a question of law reviewed de n ovo”; and (2) determining “whether merchandise falls within a particular heading, which is a question of fact we review only for clear error.” Lemans , 660 F.3d at 1315 (citing
Cummins , 454 F.3d at 1363). However, “[w]here

. . . the nature of the merchandise is undisputed, the inquiry collapses into a question of law we review de novo.” Id. “Here, there is no genuine dispute as to ‘exactly what the
merchandise is’ or as to its actual use. ” Dependable Packaging, 2013 WL 646328, at *2 (citing Bausc h & Lomb, Inc. v. United States , 148 F.3d 1363, 1365 (Fed. Cir. 1998))

. Although the parties disagreed as “ to t he ‘principal use’ of the vases ,” the CIT held this was “not a material dispute precluding summary judgment.” Id.

II. Legal Framework

A. Class ification Pursuant to the HTSUS

The HTSUS is composed of classification headings, each of which has one or more subheadings. Deckers Outdoor Corp. v. United States , 714 F.3d 1363, 1366 (Fed. Cir. 2013). “The headings contain ‘general categories of merchandise,’ whereas ‘the subheadings provide a more particularized segregation of the goods within each cat egory.’” Id. (quoting Orlando Food Corp. v. United States, 140 F.3d 1437, 1439 (Fed. Cir. 1998)). Along with the headings and subheadings, which are enumerated in chapters 1 through 99 of the HTSUS (each of which hasDEPENDABLE PACKAGING v. US 6

its own section and chapter notes), the HTSUS statute also contains the “General Notes,” the “General Rules of Interpretation” (“GRI”), t he “Additional United States Rules of Interpretation” (“ARI”), and various appendices for particular categories of goods. See Baxter Healthcare Corp. of P.R. v. United States , 182 F.3d 1333, 1337 (Fed. Cir. 1999) (citing 19 U.S.C. § 3004(a) (1994)). The class ification of merchandise is governed by the GRIs and the ARIs, which are applied in numerical order. BenQ Am. Corp. v. United States , 646 F.3d 1371, 1376 (Fed. Cir. 2011). The World Customs Organization’s “Explanatory Notes,” which accompany each ch apter of the HTSUS, are “not legally binding, are ‘persuasive[,]’ and are ‘generally indicative’ of the proper interpretation of the tariff prov ision.” Lemans , 660 F.3d at 1316 ( quoting Drygel, Inc. v. United States, 541 F.3d 1129, 1134 (Fed. Cir. 2008)).

The classification analysis always begins with GRI 1,
which directs that “classification shall be determined according to the terms of the headings and any relative section or chapter notes.” HTSUS GRI 1 (emphasis added); see Orlando Food , 140 F.3d at 14 40 (“[A] court first construes the language of the heading, and any section or chapter notes in question, to determine whether the product at issue is classifiable under the heading.”). “Absent contrary legislative intent, HTSUS terms are to be construed according to their common and commercial meanings, which are presumed to be the same.” Carl Zeiss, Inc. v. United States , 195 F.3d 1375, 1379 (Fed. Cir. 1999) (citing Simod Am. Corp. v. United States , 872 F.2d 1572, 1576 (Fed. Cir. 1989)). Pursuant to GR I 1, the possible headings are to be evaluated without reference to their subheadings, which cannot be used to expand the scope of their respective headings. Orlando Food , 140 F.3d at 1440 (“Only after determining that a product is
classifiable under the heading should the court look to the subheadings to find the correct classification for the merchandise. . . . [W]hen determining which heading isDEPENDABLE PACKAGING v. US 7

. . . more appropriate for classification, a court should compare only the language of the headings and not t he language of the subheadings.”); EOS of N. Am., Inc. v.
United States , 911 F. Supp. 2d 1311, 1327

– 28 (Ct. Int’l Trade 2013) . Finally, if the proper heading can be dete rmined under GRI 1, the court is not to look to the subs equent GRIs. See CamelBak Prods., LLC v. United States

, 649 F.3d 1361, 1364 (Fed. Cir. 2011) (citing Mita Copystar Am. v. United States, 160 F.3d 710, 712 (Fed. Cir. 1998)) (“We apply GRI 1 as a substantive rule of interpretation, such that when an imported article is described in who le by a single classification heading or subheading, then that single classification applies, and the succeeding GRIs are inoperative.”).

All the relevant HTSUS headings in this case are principal use provisions, 4 which are governed by ARI 1(a).

“ [A] tariff classification controlled by use (other than actual 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, an d the controlling use is the principal use.” ARI 1(a); see also Primal Lite, Inc. v.
United States , 182 F.3d 1362, 1363 (Fed. Cir. 1999). This court has explained that the purpose of “principal use” provisions “is to classify particular merchandise accor ding to the ordinary use of such merchandise, even though particular imported goods may be put to some atypical
use.” Primal Lite, Inc. , 182 F.3d at 1364. Thus, for example, “a classification covering vehicles principally used for automobile racing would cover a race car, even if the particular imported car was actually used solely in an advertising display.” Id.

4 The parties correctly agree that the competing headings, 7010 and 7013, are principal use provisions.DEPENDABLE PACKAGING v. US 8

B. The Competing Headings

The parties are in agreement that the vases should be classified under HTSUS chapter 70 (“Glass and glas sware”), but disagree about the appropriate heading. Currently the subject merchandis e is classified under heading 7 01 3, which provides for “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or

701 8) .” Dependable argues the vases should be classified
under heading 7010, which includes “c ontainers, of glass, of a kind used for the conveyance or packing of goods.”

III

. The Scope of Heading 7013

The Explanatory Notes to HTSUS 7013 specifically identify “vases” as an example of “glassware for indoor decoration and other glassware covered by heading 7013 .”
See Explanatory Note s to the Harmonized Commodity Description and Coding Sys., 70 .13, 4th ed. (2007) (“E xplanatory Notes”) (“ This head ing covers . . . [g]lassware for indoor decoration and other glassware

. . . such as vases.”). The CIT concluded Dependable’s vases were “vases” within the scope of 7013, in part by relying on dictionary definition s of the word “vase.” Dependable Packaging , 2013 WL 646328, at *4

– 5 & n.12 ( “‘An open container, as of glass or porcelain, used for holding flo wers or for ornamentation.’” (quoting American Heritage Dictionary of the English Language 1904 (4th ed. 2000 ))) ; “‘[A] usually round vessel of greater depth than width used chiefly as an ornament or for holding flowers.’” (Merriam

- Webster’s Online Dictionary, Vase, http://www.merriam

- webster.com/dictionary/vase (last

visited June 13, 2014 ))).

Dependable argues “it was an error to rely on a defin ition of ‘vase’ since the term vase does not appear” in Dependable’s proposed heading 7010

. Appellant’s Br. 9. Dependable contends the CIT instead “should have co ncentrated on the definition of container, which does a p-DEPENDABLE PACKAGING v. US 9

pear in heading 7010

. ” I d. Appellees counter the CIT correctly determined “the products at issue are glass flower ‘vases’ despite Dependable’s avoidance of that term.” Appellee’s Br. 14 (citing Dependable Packaging

, 2013 WL 646328, at *5 ).

Dependable’s a rgument is without merit. The CIT properly relied upon the Explanatory Notes in determi ning the scope of heading 7013. The Explanatory Notes “do

not constitute controlling legislative history but noneth eless are intended to clarify the scope of

. . . and to offer guidance in interpreting” the HTSUS. Mita Copystar

Am. , 21 F.3d at 1082 (citation omitted)

. T he Explanatory
Notes are “ ‘ generally indicative of the proper interpret ation of the [HTSUS]. ’ ” Lynteq, Inc. v. United States , 976 F.2d 693, 699 (Fed. Cir. 1992) ( quoting H.R. Rep. No. 100

- 576 (1988), reprinted in 1988 U.S.C.C.A.N 1547, 1582 )

. Dependable is therefore incorrect that the term “vase” is

irrelevant to the proper interpretation of the headings.

Additionally, Dependable itself identifies the me rchandise as either “Generic Bud Vase” or “Generic Tru mpet Vase” on its commercial invoices, s ee Dependable Packaging , 2013 WL 646328, at *1 ; its sales brochures,
J.A. 150

– 159; and in its responses to Custom s’ interrog atories , J.A. 194. Dependable never denies the mercha ndise is vases, see J.A. 47, and indeed, during oral
argument agrees it is

. See O ral Argument at 4:21

– 4:25,
available at http://www.cafc.uscourts.gov/oral

- argument

recordings/13

- 1300/all (counsel replying “ye s” when asked whether the subject merchandise is “sold by the stores, as being in vases”). Finally, Dependable conceded the me rchandise is vases: “Q[uestion:] When you say glass co ntainers, are you referring to vases, like the vases that are at issue in this case? A[nswer]: Yes.” J.A. 47. Accordin gly, w e find no error in the CIT’s focus on “vase,” and
therefore turn to determining the princip al use of the

merchandise at issue.DEPENDABLE PACKAGING v. US 10

IV . The Principal Use of the Merchandise

P rincipal use provisions “ ‘ call for a determination as to the group of goods that are commercially fungible with the imported goods ’ ” in order to identify the “use ‘ which exceeds any other single use. ’ ” Aromont USA , Inc. v. United States

, 671 F.3d 1310, 1312 (Fed. Cir. 2012) (quo ting Primal Lite

, 182 F.3d at 1365; Lenox Collections v. United States, 20 C .I.T. 194, 196 (1996)). The CIT an alyzes the “ Carborundum f actors” in determining which goods are “commercially fungible with the imported goods.” Id. at 1312

– 13

. The factors include :

[The] use in the same manner as merchandise which defines the class; the general physical characteristics of the merchandise; the economic practicality of so using the import; the expectation of the ultimate purchasers; the channels of trade
in which the merchandise moves; the environment of the sale, such as accompanying accessories and

the manner in which the merchandise is adve rtised and displayed; and the recognition in the
trade of this use.

Id. (citing United States v. Carborundum Co. , 536 F.2d 373, 377 ( CCPA 1976)).

The CIT found the “[a]pplication of the Carborundum
Factors demonstrates that Dependable’s vases are co mmercially fungible with other clear glass vases that are primarily used for decorative purposes,” thus falling under heading 7013. Dependable Packaging

, 2013 WL 646328, at *5. Dependable disputes th at determination

here.

A

. General Physical Characteristics

The CIT found this factor “shows that the vases are commercially fungible with other clear glass vases that are sold empty at retail and are used for decorative pu rposes.” Id.DEPENDABLE PACKAGING v. US 11

The general physical characteristics of the mercha ndise are not disputed by either party. E xamining the merchandise, the CIT found :

The bud vases are eight inches in height, with a
quarter

- inch lip that the parties agree is not d esigned for any sort of closure. The lip surrounds an opening measuring one and one

- half inches in

diameter. The bud vases have a narrow neck e xtending downward five inches from the opening.
The neck then widens into a bulbous s hape, two
and three

- quarters inches in diameter at its wi dest point, and ends in a slightly concave bottom
two inches in diameter. The bud vases also have deepening striations beginning one inch below the lip that continue to the bottom of the article.

Th e trumpet vases are nine and three

- quarter inches in height with a quarter

- inch lip that the parties agree is not designed for any sort of cl osure. The lip surrounds an opening measuring
three and three

- quarter inches in diameter. The
diameter of the opening gradually narrows (as one

moves two

- thirds of the way down the vase) to a diameter of three inches, widening again therea fter to end in a bottom measuring four and one

quarter inches in diameter.

Id. at *1 (footnote omitted)

. The vases’ physical c haracteristics are indistinguishable from other glass vases sold at retail for the purpose of decoration. See J.A. 218, 220

– 22 (testimony of a Customs Senior Import Specialist
about her visits to various retail store s that sold similar vases for decorative purposes), 239

– 46 (exhibit documen ting various retail stores selling similar vases for decor ative purposes).

Additionally, “[t] he design features of the vases that Dependable points to as indicating use as [] packing material (narrow waists, long neck s, small openings,DEPENDABLE PACKAGING v. US 12

inexpensive glass) are apparent in . . . other, virtually identical vases,” which indicates Dependable’s mercha ndise is “commercially fungible” with other inexpensive vases that are sold empty at retail and used for decorative

purposes. Dependable Packaging , 2013 WL 646328, at *5.

Finally, Dependable’s vases do not include closures
and thus are not well

- suited for “conveyance or packing,” as required by Dependable’s proposed heading. Subhea ding 7010.90.30 provides for:

Carboys, bottles, flasks, jars, pots, vials, ampoules and other containers of glass, of a kind used for the conveyance or packing of goods; preserving jars of glass; stopper, lids and other closures of glass : . . . Other:

. . . Other.

HTSUS 7 010.90.30 (emphasi s added). The products listed in this heading typically have closures. The Explanatory Notes to heading 7010 further support this proposition:
“The above

- mentioned containers are generally de signed for some type of closure ”; “They generally have a large opening, a short neck (if any), and as a rule, a lip o r flange to hold the lid or cap ” ; and the covered containers also include “[a]m poules . . . intended to serve, after sealing .”
See also Latitudes Int ’ l Fragrance, Inc. v. United States

, 931 F. Supp. 2d 1247, 1254 (Ct. Int’l Trade 2013) (“The capacity of the bottles to take a stopper is a physical characteristic that distinguishes glassware for the co nveyance of goods under heading 7010 from decorative glassware under heading 7013.”). Accordingly, that Dependable’s vases do not have a closure is indicative that they do not have the physical characteristics of merchandise that would fall under heading 7010.

Because Dependable’s vases are fungible with other decorative glassware that falls under heading 7 013, the general physical characteristics favor classifying the vases under heading 7013.DEPENDABLE PACKAGING v. US 13

B

. Actual Use

The CIT determined the “use in the same manner which defines the class,” or actual use, favored classifying Dependable’s merchandise as glass vases pr imarily used for decorative purposes. “[A]ctual use of the particular imported goods is evidence of the principal use of the merchandise involved. Actual use of the goods involved is but one of a number of factors, and perhaps one of the more important o f the Carborundum factors.” Aromont

, 671 F.3d at 1313. Dependable contends the actual use of the merchandise is use for “wet packing and conveyance of flowers” from the packing house to retailers. Appe llant’s Br. 14.

The CIT correctly concluded that t he actual use of the merchandise is primarily decorative. It is undisputed
that the merchandise is filled with flowers when sold to the end purchaser, and the unit is sold for a price higher than either the flowers or the vase individually. Add itionally, purchasers of the unit at retail are able to di splay flowers in the vases and then reuse the vases in order to display flowers bought later in time. Indeed, Dependable concedes that consumers “do [] not want to go to the trouble of buying vases and flower s separately, but want[] the ease of having the glass containers and flowers as a unit ready to be displayed at home or in the office .”
Id. at 19 (emphasis added)

. Dependable’s vases are not “ sold empty at retail, ind icating that they have some use as packing materials.” Dependable Packaging , 2013 WL 646328, at *7

. However, the ultimate use of the merchandise, consistent with the way in which other inexpensive glass vases are used, evidences a primarily decorative purpose. Additional ly,
that the vases can be used for conveyance does not negate the fact that they are also used primarily as decoration

. Accordingly, the actual use of the merchandise is primar i-DEPENDABLE PACKAGING v. US 14

ly decorative, which favors classification under heading

7013

.
C . Economic P racticality

The CIT found there was “no admissible evidence on
the record that the vases’ use as packing containers is economically practical.” 5 Dependable Packaging , 2013 WL 646328, at *7. According to Dependable, however,
this factor is “decisive” in f inding the vases are classifi able under 7010 rather than 7013 because “Dependable’s glass containers are the most economically feasible way to ship flowers from a packing house to supermarkets.” Appellant’s Br. 21 (citing J.A. 123). Dependable asserts that because Dependable conveys and packs the flowers before arrival at the retailers, supermarkets do not need
to hire florists.

Dependable fails to offer any evidence for this stat ement, and indeed, when asked during oral argument about its statement in its briefing that “most superma rkets do not have florist[s] on their premises that can care for flowers,” Appellant’s Br. 21

– 22, counsel conceded “I perhaps did misp[ea]k.” Oral Arg ument at 15:26

– 16:20. Without evidence on the record that supports Dep endable, this factor favors classify ing the merchandise under heading 7013

.
D . Expectations of the Ultimate Purchasers

Dependable argues the ultimate consumers of D ependable’s merchandise purchase the vases “not for the

5 “[U]nder 28 U.S.C. § 2639(a)(1)

, a classification of merchandise by Cus to ms is presumed to be correct . . . [so]
the burden of proof is upon the party challenging the
classification .” Rollerblade, Inc. v. United States, 282 F.3d 1349, 1352 (Fed. Cir. 2002) (internal quotation
marks and citations omitted).DEPENDABLE PACKAGING v. US 15

purpose of acquiring a decorative v ase but for the conve yance of transporting flowers in a container.” Appellant’s

Br. 17.

The record indicates that, at retail, the unit of the
vase and flowers sells for more than the cost of flowers or

vase alone

. R etail purchasers pay extra for the pa iring of flowers and vase when compared to the cost of flowers

alone. See J.A. 85 (“Q [uestion:] You take the exact same bouquet of roses, you buy it out of the bucket without a vase, it ’ s less expensive th an the bouquet in the vase[?] A[nswer:] Yes. It’s less cost for transport and product obviously.”); see also O ral Arg ument at 4:39

– 5:03 (counsel replying “yes” to both whether customers pay more for the
vase and flower combination and whether retailers charge more for that combination)

. That the unit price is more expensive than flowers alone indicates that acquiring Dependable’s vases is not merely incidental to the pu rchase of the flowers, as would be the case if the vases were merely packing containers.

Dependable also argues that a purchaser “would not expect to reuse the glass containers for decoration after transporting the flowers to their intended location.” Appellant’s Br. 17

. However, Dependable has provided no support for this assertion. See Dependable Packaging

, 2013 WL 64 6328, at *6 . It is also not disputed “that the vases are capable of reuse and that the ultimate purcha ser would have the option to do so.” Id. ; see also J.A. 79.

The CIT correctly determined that the ultimate purchaser buys the vases for primarily decor ative purposes, not to perform conveyance or packaging.

E . Channels of Trade

Dependable argues that because its vases “are never sold for any purpose other than that of being used as a container for conveying or packing of flowers” this factor
supports classification under 7010. Appellant’s Br. 19. However, Dependable ’s sale of the empty vases to packingDEPENDABLE PACKAGING v. US 16

houses does not mean they are fungible with glass co ntainers intended to be used for packaging or conveyance. The ultimate purchaser buys the vase at retail for the purpose of decoration, as determined above

. Thus, we agree with the CIT’s analysis that “ the movement of the vases in trade merely suggests that Dependable ’ s vases travel in an atypical manner to the final purchasers who employ them in a t ypical manner.” Dependable Packaging , 2013 WL 646328, at *6.

F . Environment of the Sale

The manner in which a product is displayed and a dvertised is relevant to an analysis of this factor. See
Carborundum , 536 F.2d at 377. It is undisputed that the

vas es are filled with flowers and displayed for sale at the retail location in order to encourage customers to pu rchase the vase and flower unit because of the decorative
value of the vase and flowers combined. Indeed, Depen dable’s own marketing materials de pict some of its vase and flowe r unit s being used as decoration and state “retailers hope that consumers would be attracted to the presentation of the flowers within glass containers .” See J.A. 160, 161, 164; Appellant’s Br. 20.

G . Recognition i n the Trade of This Use

Under this factor, “courts consider whether the me rchandise is recognized in the trade as having that partic ular use or whether it meets certain specifications recognized in the trade for that particular class of pro ducts.” Aromont , 671 F.3d at 1316. Dependable contends the trade recognizes its merchandise as “utility vases,”

which reflects “the durability of the glass containers” and their ability to protect the flowers during transport. Appellant’s Br. 23. However, the only record ev idence related to this factor is Dependable’s testimony about the use of its actual customers, “rather than connoting any broad commercial meaning or industry practice. ” D ependable Packaging , 2013 WL 646328, at *8 (citing J.A.DEPENDABLE PACKAGING v. US 17

76

– 77) (“Q[uestion:] Is that a term of art, utility vase? A[nswer:] Of art, no. Q[uestion:] Is it something used in the industry, that term ‘utility vase’? A [nswer:] They usually use utility vase as cheap.”). As discussed above,

the record shows that vases that are “virtually indist i nguishable” from Dependable’s glass vases are sold empty at retail for the purpose of decoration. Id. The record

thus shows that this factor is neutral.

In sum, nearly every Carborundum factor weighs heavily in favor of classifying Dependable’s merchandise under heading 701 3 rather than heading 7010

, and not one supports Dependable . A ccordingly, the CIT correctly granted summary judgment upholding Customs’ classification of the vases under heading 7013.

C ONCLUSION

The decision of the CIT is

AFFIRMED