Slip Op. 07-64 UNITED STATES COURT OF I NTERNATIONAL

TRADE

______________________________________ : WAGNER SPRAY TECH : CORPORATION, I

NC., : : : Before: WALLACH, J udge Plaintiff, : Court No.: 04-00521 : v. : : UNI TED STATE S, : : Defend ant. : ______________________________________: [Plaintiff’s Rule 56 Motion for Summary Judgment is DENI ED and Defendant’s Cross-Motion for Summary Judgment is GRANTED.] Dated: May 4, 2007 Nev il le P ete rso n LLP , ( Marga ret R. Polit

o and Curtis W. Kna

uss ) for Plaintiff Wagner Spray Tech Corporation, Inc. Peter D. Keisler , Assistan t Attorne y G eneral ; Barba

ra S. Willia

ms , Attorney-in-Char

ge, International Trade

Field Office, Commercial Litigation Bra nch, Civil Division, U.S. Department of Justice ( Amy

M. Rubin); and Chi S. Choy , Office of Assistant Chief Counsel, Inter national Trade Litigation, U.S. Customs and Borde r Protection, of Counsel, for Defendant United States.

OPINION Wallach, Judge: I INTRODUC TION 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,1 See United States Patent No. 4,732,503, Reservoir Fluid Dispenser with Control Valve

4:15-16 (March 22 , 1988), D efenda nt’s Appe ndix, Tab E ( “The pr

esent inn ovation pr

ovides a paint roller that includes a self-contained paint supply . A reservoir in the paint roller can be easily filled y

et 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 Ha ndle, Defendant’s Appendix, Tab F. 2 Inc. (“Wag

ner”) challenges the United States Customs and Bor der Protection’s (“Customs”) classification of its imported merchandise under Heading 9603 of the Harmonized Tariff Schedule of the Un

ited State s (2003) ( “HTSUS”) as “pain t rollers ” and “p aint pads ” at a dut y r ate of 7.5% or 4% ad valorem , respec tively . Plaintiff

contends that the su

bject mer chandise is properly c lassified at lower rates or duty free under HTSUS Headings 8413 and 8424 a s “[p]umps for liquid . . . .” and “[m]echanical appliances . . . for projecting, dispersing or spraying liquids.” The cour

t has juris diction ov er this ac tion pursu

ant to 28 U .S.C. § 1581 (a). B ecause the subject merchandise can be classified as paint rollers and pads under HTSUS Heading 9603, Plaintiff’s Motion for Summary Judgment is denied and De fendant’s Cross-Motion for Summary Judgment is granted.

II BACKGROUND Plaintiff is the pate

nt holder of component part s of a pai nting sy stem desig

ned 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 painter s and home owners to apply paint or s tain to a su

rface without be ing req

uired to r epeate dly bend down to fill the pad or roller with paint or stain.” Complaint ¶ 12. Between Novembe r 15, 2002 and July 17, 2003 Wagner ente red subject merchandise known as “Paint-N-Roll,”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-ope rated mechanical floor sweepers, not motorized, mops and feathe r duster s; prepa

red knots and tufts for broo m or brush making; paint pads and rollers; squeegee s (other than roller squeegees): * * * 9603.40.2000 Paint rollers

* * * 9603.40.4020 Paint pads

3 In its Protest Wagner asserte d 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 mercha ndise is also properly cla ssified in Subheadings 8424.20.1000 and8413.20.0000, omitting Subheading 8413.50.90. Complaint ¶ 29. Because Plaintiff does not reassert the conten

tion that it s product s are cl assifiab le in Subhe ading 8 413.50.90 neither in its Complaint and in its Motion for Summary Judgment the court assumes that Plaintiff has 3 “PaintMate Plus,” “StainMate” and “Trim-I t” (collectively “

Wagner products”) through the por t of Minneapolis, Minnesota. Summons, Court No. 04-00521 (October 14, 2004); Amended Summons, Cou

rt No. 04- 00521 (Ma

y 10 , 2005). Cu stoms liquid ated all e ntries be tween April 11, 2003 and May 28, 2004 and c lassified the subject merchandise under HTSUS Heading 9603, Subheadings 9603.40.2000 or 9603.40.4020, 2 as “Pa int R oller s” and “Pain t Pad s,” as sessi ng 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

Defend ant’s Me morandum

in Support o f its CrossMotion for Summary Judgment and in Opposition to Plaintiff’s Motion for Summary Judgment (“Defe ndant’s M otion”) a

t 1. Plaintif

f paid al l liquidate d duties, t axes and f

ees asso ciated w

ith the entries at issue. Complaint ¶ 3; Answer ¶ 3. Wagner filed a pr otest on June 16, 2003 contesting Customs’ classification of its imported merchandise. 3 Amended Summons. Cus tomsabandoned 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, 336-41 75915-6, 336-4176 241-6. Amended Sum mons.

5 Protest Number 3501-04-100033 concerns Entry Numbers: 336-4494937-4, 336- 4495220- 4, 336-44 94952-3. 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 spray ing liquids or powders; fire extinguishers, whether or not charged; spra y guns a nd similar appliances; stream or sand blasting machines and

4 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 commenc ed 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 par ties to this

casesimilar jet projecting machines; parts thereof: * * * 8424.20 Spray guns an d similar a

ppliance s: 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 (“G

RI”) 3 analy

sis which would require the court to make a factual de termination regarding whether

Wagner products contain a pump for purposes of HT SUS Heading 8413. Because all subject merchandise in question fa ll within the scope of Heading 9603 pursuant to a GRI 1 analy

sis, no issue of material fact exists based on the papers, pleadings and or al argument in this case. 5 submitted motions for summary judgment. The c ourt 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’ “per tinent characteristics” are in dispute. Rollerblade, Inc. v. United States , 112 F.3d 481, 483 (Fed. Cir. 1997). The parties’ disag reements on the issues of fact are not material to the outcome of this case and therefore do not pr eclude entry

of a summary judgmen t. 8 Oral argument was held on Febr uary 7, 2007.

III STANDARDOF REVIEW A motion for summary judg ment shall be granted if “the pleading s, depositions, answers to interr ogator ies, and a dmissions on

file, tog ether wi

th the af fidavits, if any , show tha

t there is no genu ine issue as to any materia l fact an d that the moving pa

rty is entitle d to a judg

ment as a matter of law.” USCIT R. 56(c) . Where both parties have moved for summary judgment the6

court ne ed not g

rant either motion b ecause “summary

judgmen t for eith er part

y is not prope

r 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 I nternational Trade has not hesitated to decide classification cases on summary judgment when that was appropriate.” Bausch & L omb, Inc. v. United States , 148 F.3d 1363, 1365 (Fed. Cir. 1998). I n classification cases, summary judgment is appropriate where there is no underly ing factual issue of what the merchandise is, because “the proper classification under which [an article] falls . . . has alway s 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 employ s a two-step analy sis 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). I

n addition , becau se Customs’ factual determination is statutorily pr esumed 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. § 2 639(a)( 1)). The court re views 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 P roperly Classified by Customs under the Eo

Nomine Designation of HTSUS Heading 9603

A Genera l Rules for C lassificat

ion of Goods The proper classification of merchandise e ntering the United States is governed by the7

Genera l Rules of I

nterpre tation (“ GRI” ) of the H armonized Tariff Schedule s of the Un

ited State s. See, e .g. , Orlando Food Corp v. United States , 140 F.3d 1437, 1439(Fed. Ci

r. 1998). GRI 1 in pertinent part states that “for legal purpose s, 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 he ading, the court may refer to the Explanatory

Notes (“ENs”) accompany

ing each heading, which is the Customs Cooperation Council’s officia l interpretation of the HTSUS. See, e .g. , Carl Zeiss, Inc. v. U nited 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 classifica tion of merchandise under the system.” H.R. Conf. Rep. No. 100-576 at 549 ( 1987) , reprinte d in Legislative History

of the Omnibus Tr

ade and Competitive

ness Act o f 1988 (19 88); see also Carl Ze iss , 195 F.3d at 1378 n.1. An eo nomine provision describes goods according to “ their common and commercial meaning.” Carl Ze iss , 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 C IT 500, 5 05, 59 F. Sup p. 2d 1 361 (1 999) ( citi ng Nootka Packing Co. v. United States , 22 CCPA 464, 469-70 (1935)). Furthermore, “an article w hich has been impr

oved or a mplified b

ut whose e ssential c

haract eristic i s preser

ved or on ly in cidenta lly altered is not excluded from an unlimited eo nomine statutory designa tion.” Casio, Inc. v. United8

States , 73 F. 3d 109 5, 109 8 (Fed. Cir. 1996) (citi ng Robert Bosch Corp. v. United States , 63 Cust. Ct. 96, 103-04 (1969)). If classifica tion is not resolved satisfactorily by application of GRI 1, the court will refer to the succeeding G RIs in numerical order. See, e.g., Conair Corp. v. United States , Slip Op. 05-95, 2005 Ct. Int’l Trade L EXIS 104, at *7 (CI T August 12, 2005). When goods are prima fa cie classifi able unde

r two or more head

ings, cl assifica

tion is resolve d by

applica tion 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) pr ovides tha

t the more

specific description of a good shall be preferr ed over a more genera

l description. Id. To discer n which is the more specific description “a court ‘looks to the provision with require ments that are more difficul t to satisf y a nd that de scribe the articl e with the great est deg ree of a ccurac y’ ” in accordance with the “relative spe cificity” ana lysis mandated by

GRI 3(a). Len-Ron Mfg. Co., I nc. v. United States , 334 F .3d 13 04, 13 13 (Fed . Cir . 2003 ) (quo ting Carl Ze iss , 195 F.3d at 1380). The Explanatory Notes to GRI 3(a) provide that “[a] description by name is more specific than a descrip tion by

class.” Explanator

y N ote, Rule 3 (a) (20 03). GRI 3(b) ass umes that t

he artic le is a composite good, not encompassed by a single heading, which will be classified a ccording to the componen

t of the su bject mer chandise which impa

rts the g ood with its

“essent ial char acter. ” GRI 3(b).

B The Court

Need Not

Consider C lassificat

ion of Wagner

Product s Beyond GR

I 1 Because HTSUS Heading 9603 Encompasses the Subject Merchandise in its Entirety Wagner’s principal argument is pre mised on the court finding that no single HTSUS heading describ es its prod

ucts in the ir entire

ty, and that t

he court must there fore pr

oceed to a GRI 3 analysis. See Memorandum of Points and Authorities in Support of Plaintiff’s Rule 56 Motion9 The Explanatory Notes to H eading

9603 desc

ribe pai nt roller s and pad s as follow s: 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 fa bric attached to a hard back, usually

of plastics; they may

have handles. Explanatory Note 96.03(F) (2003). 9 for Summa

ry Judgment ( “Plaintif

f’s Motion

”) at 19. Plaintiff

does not e

ntertain the possib ility that the court may r

esolve classification by

application of GRI 1, stating “the unique features of the Wagner Products result in these Products being descr ibed 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 a s the pump that transports paint from the paint can into the handle of the paint roll er, the e

xistence o f a rese

rvoir in the handle

and the me

tric cap acity

of the pr oduct to hold paint. Id. at 2. Wagner asserts that its products cannot be classified a s paint rollers and pads because such items do not traditionally contain trigger devices, r eservoirs, intake valves, outlet valves and pistons, nor do traditional rollers project paint from inside the roller core. Id. at 5-6. Defend ant arg ues that the importe d article s were a ppropria tely classifi ed by

Customs in Heading 9603 as “ Paint rolle

rs” or “ Paint pads ” and tha t becaus e the subj ect merc handise i s wholly encompassed by

a single tariff provision, no analy sis beyond GRI

1 is needed. Defend ant’s Moti on at 10; H TSUS Head ing 9603 . The Gov ernment asserts t hat Hea ding 960 3 is

an eo nomine provision encompassing “specifically identified products” including “paint pads and rollers.” Id. In su

pport of i ts conten tion that Wa

gner products c ontain ide ntical fe atures to traditional paint rollers and pads, Defendant cites to the Explanatory Notes accompany

ing Heading 9603 which describe paint rollers a s containing “a roller” and “a ha ndle.” 9 Id. at 10-11.10

Defendant refutes Plaintiff’s attempt to distinguish its products from traditional paint pads and rollers, arguing that Wagne r products’ added features do not transform the pr oducts, but are merely improved ve

rsions of traditional paint pads and rollers. Id. at 11. Defendant also notes that Plaint

iff peri odically

refer s to its own products a s “paint r ollers” or “paint

pads” bo th in its patents and in its regular marketing. Id. (cit ing P aten t No. 4 ,732, 503; D efen

dant ’s Ap pend ix, 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. U nited 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 Ze iss , 195 F.3d at 1379. An article which has also been “improve d or amplified” is not excluded from an eo nomine designation. See Casio , 73 F.3d a t 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 improve d forms.” Chevron Chemical Co. v. United States , 23 CI T 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 ver sions of traditional paint pads and rollers. Webster’s Dictionary de fines a paint roller as one that “consists ty pically of a r

otating cy linder . . . covered with an absorbent material and mounted on a ha ndle so that the cylinder c an be dipped into paint or otherw

ise . . . be supplied w

ith paint a nd rolled over a f lat surfa ce . . . so as to appl

y the paint.” W EBSTER ’ S T HIRD N EW I NT ’ L D ICTI ONARY 1622 (1986). Each Wagner product11

contains a paint pad or a paint roller, which resembles a c onventional pad or roller, and the function of each product is identical to traditional pads and rollers, to sprea d paint onto surfaces. The metho d by

which this

is accom plished do es not wa

rrant c lassific ation bas ed on only componen

t parts of the produ

cts, nor d oes it ren der the products prima fa cie classifiable in more than one heading. Heading 9603 pr operly classifie s the products according to their common and commercial meaning as paint pads or paint rollers, a lbeit amplified by the patented Wag ner 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 argue s that although its products a ppear “ at first b lush” to be describ ed in Heading 9603, they

are prima fa

cie described by

more than one heading due to their “unique features” and are classifiable under Heading s 8413 and 8424. Plaintiff’s Motion at 11.

1 HTSUS Heading 8413 Plaintiff argues that each Wagne r product is a “pump” and therefore prope rly 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 ar e properly

classified under Heading 8413, render ing its pa inting de vices prima fa

cie classifiable as “pumps.” Id. at 12-13. Wagner describ es the me chanics

of its prod

ucts in de tail, arg uing tha t the inter nal func tioning o f its products amount to a legally accepted definition of a pump. Id. at 13- 15 (ci ting Hancock Gross, Inc. v. United States , 64 Cust. Ct. 97, C.D. 39 65 (1970) ; Fedtro, Inc. v. United States , 65 Cust.10 The ENs to Heading 8413 state

that: This head ing cov ers most ma

chines a nd applia nces for raising or other wise continuously displacing volumes of liquids (including molten metal and wet concre te), whe ther the y a re oper ated by hand or b y a

ny k ind of pow er unit, integral or otherwise.” Explanatory Note 84.13 (2003). 12 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 arg ues that in order for a product to be prima fa cie classifi able as a

pump in He ading 8 413, the me rchandi se must “c ontinuousl y 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. Su

pp. 2d 1360 , 1367 (CI

T 2003), t he court held that “‘inter mittently carry ing minut e amounts

of liquid f

rom a sour

ce conta iner to a destinati on contai

ner 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 . Defen dant’ s Mot ion at 22-23 (quot ing 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 designe d to do” and that the pipettes in question were not13

designed to “pump” liquids. Id. Defend ant furthermore

notes tha t Wagner does not se ll its painting system as “

pumps” and that while a product need not be exclusively referred to in the marketin g or pro duct desc

ription of the artic le as its H TSUS desig nation, Pla

intiff ap pears to only designa

te 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 adequa tely 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 de scription of a decorative fountain as an “ar ticle in all its forms.” Conair , 2005 Ct. Int’l Trade L EXIS 104, at *10. Based on this finding the court designated the article as a composite product and undertook a GRI 3(b) analy sis 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 Wag

ner products contain a “pump” as defined in Hea ding 8413, such a pump would not impart the products with their “essential character” because the subject mercha ndise is ma

de for pa inting, n ot pumping , and the o

bject of Plaintiff ’s produc t is not to remove paint from a bucket, but to spread it on walls. Furthermore , as the court stated in Fedtro , “[w]ith res

pect to [ar

ticles ha ving dua l or multiple

end uses], ‘the que stion is not s o much wha t . . . [the imported article] does as what it primarily wa s constructed and designed to do,’ insofar as classification of the article is concerned . . . .” Fedtro , 65 C ust. Ct. at 44 (qu otin g 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 (196 6)). How ever, be cause c lassific ation of Wa gner products c an be re solved und er a GRI 1 analy sis , the court need not reach a GRI 3 analysis.11 The ENs to Heading 8424 provide: Spray g uns and similar hand controlled appliances are usually designed for attachin g to compressed a

ir or stea m lines, an

d are al so conne cted, ei

ther dire ctly or through a conduit, with a reservoir of the mate rial to be projected. They are fitted with triggers or other valves for controlling the flow through the nozzle, which is usually adjustable to g ive a jet or more or less divergent spray . They ar e used for spray ing pain t or distem

per, var nishes, oi ls, plastic s, cemen t, metallic powders, textile dust, etc.. They may also be used for projecting a power ful jet of compressed air or steam for cleaning stonework in buildings, statuary , etc. Explanatory Note 84.24(B ) (2003). 14 2 HTSUS Heading 8424 Wagner maintains that its products are also described in Hea ding 8424 as “Mechanical appliances (whether or not hand operate d) for projecting, dispersing or spra ying liquids or powders.” Plaintiff’s Motion at 15; HTSUS Heading 8424. Wagner conte nds that its “patented roller core” projects, disperses and spra ys the liquid in “five streams or je ts” and “by the f

eed channe ls inside th e roller

core.” Plaintiff ’s Motion a

t 17-18. I n support o f its conte

ntions, 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 con trary, the use provision is prefer red whe re a pro duct is de scribed

by b oth a use provision and an eo nomine provision. Id. at 19 ( citi ng United States v. Siemens Am., Inc. , 68 C.C.P.A. 62, 653 F.2d 471, 478 (1981)). The Explanatory

Notes to H eading

8424 provide in par

t that “spr ay guns . . . are usua

lly designed for attaching to compre ssed air or steam lines . . . .[and] are used for spray ing paint,” none of which applies to the subject merchandise. Defe ndant’s Motion at 19. 11 Defend ant points15

to the fact that in discovery Plaintiff affirmatively c oncluded that its products “are not paint spray ers” an d do not wor

k like “pa int spray ers” an d that Plain

tiff has o ffere d no evide

nce that its painting devices act as paint spray ers. Id. at 18 (citing

Interroga tory no. 29, Defe

ndant’s Appendix, Tab H). Defendant further refute s that Wagner products propel liquid onto a surface, arguing that the products instead ca use the paint to flow through the holes of the applicator, and contrary to a paint spraye

r, do not break down the paint into fine particles that are “throw n, 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 fa cie classifiable in Heading 8424, the product a s a whole

is at issue

and not on

ly the way

in which li quid is expr

essed fr om the pro duct. 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 interroga tories, that paint is “dispersed only fr om 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 I nterrogatories and Request for Production at 14-15 (November 15, 2006). More importantly , if Plaintiff’s proposed designation

were a ccepte d, Headi

ng 8424 would inclu

de all pa int rollers and pad s becaus e all such produc ts are designed to project, disperse, or spr ay liquids in order to achie ve the objective of getting paint on a surf ace. However, since the

re is a se parate paint roll er provi sion in the HTSUS whic

h is a more specific designation of the article, suc h a designation is preferred. The E xplanatory Notes to GRI 3 provide that a description “by name is more specific than a description by class.”16

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

liquids” clearly re fer to a class of goods, wherea s “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 improve d 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 mechanic al description of Heading 8424, still ignoring the fact that e ven under a GRI 3(a

) analysis, a more

specific heading is preferred, which in this case is Heading 9603.

D Wagner Products are Not Pr ecluded 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 narr owly construed this heading to include only brushes, rollers a nd pads as separate items, and not appliances that incorporate r ollers and pads. Plaintiff’s Motionat 20. Plaintiff’s argument is based on the Federa l Circuit’s holding in Bausch & Lo mb , in which the court held that electrical toothbrushes were excluded fr om classification under Heading 9603, and that only if the brush wa s 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 e xistence of other HTSUS headings covering diffe rent types of paint rollers is indicative that not all products that incorporate paint rollers are within the scope of Heading 9603. Id. at 22. Defend ant count ers that Bausch

and L omb concerned languag e in Heading 960317

pertaining only

to “brooms and brushes” and that the court’s decision was appr opriate given the nature of merchandise at issue. Defenda nt’s Motion at 14-15. Heading 9603 cont

ains four distinct g rouping s of merc

handise s eparat

ed by semicolon s, which in tariff provisions “create a wall ar ound each grouping of items, preve nting the qualifying language from one g

rouping from apply

ing 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 categ ories of merchandise: (1) “Brooms, brushe s (including brushes constituting parts of machines, appliances or vehic les), hand-operated mechanical floor sweepers, not motorized, mops and feather dusters;” (2) “pr epared knots and tufts for broom or brush making;” (3) “paint pads and rollers;” (4) “squeegees (other than roller squeegees).” HTSUS Hea

ding 960 3. The fa

ct that brushes imported separately from machines, appliances or vehicles are appropriately classified in Heading 9603, does not give rise to the c onclusion that only paint rollers and pads imported se parately f rom 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 f eatures 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 r

easons Plaintiff’s Motion for Summary Judgment is denied a nd 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 Hea ding18

9603, Subheadings 9603.40.2000 and 9603.40.4020 is affirmed.

__/s/ Evan J. Wallach___ Evan J . Wal lach, Judge

Dated: May 4, 2007 New York, New YorkUNITED STATES COURT OF I NTERNATIONAL

TRADE

______________________________________ : WAGNER SPRAY TECH : CORPORATION, I

NC., : : : Before: WALLACH, J udge Plaintiff, : Court No.: 04-00521 : v. : : UNI TED STATE S, : : Defend ant. : ______________________________________: 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 (“Defe ndant’s Motion”); the court having reviewed all paper s and pleadings on file herein, having he ard oral argument by each pa rty , and aft

er due de liberati on, havin g reac hed a de cision he

rein; now , in conformity

with said decision, it is hereby ORDERED, ADJUDGEDand DECRE ED that Pla intiff’s Motion is DE

NIED ; and it is further ORDERED, ADJUDGEDand DECRE ED that De fendant ’s Motion is GRANTED ; and it is further ORDERED, ADJUDGED and DECREED that the imported items at issue in this case are properly c lassified under Heading 9603, Subheadings 9603.40.2000 a nd 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, ADJUDGEDand DECRE ED that jud gment be , and her

eby is, enter ed in favor of Defendant and ag ainst Plaintiff.

__/s/ Evan J. Wallach__ Evan J . Wal lach, Judge Dated: May 4, 2007 New York, New York