Gerson Company v. United States , 898 F.3d 1232 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
THE GERSON COMPANY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-1011
______________________
Appeal from the United States Court of International
Trade in No. 1:11-cv-00225-TCS, Chief Judge Timothy C.
Stanceu.
______________________
Decided: August 6, 2018
______________________
RALPH H. SHEPPARD, Meeks, Sheppard, Leo & Pills-
bury, Fairfield, CT, argued for plaintiff-appellant.
HARDEEP KAUR JOSAN, International Trade Field
Office, Commercial Litigation Branch, Civil Division,
United States Department of Justice, New York, NY,
argued for defendant-appellee. Also represented by AMY
RUBIN, JEANNE DAVIDSON, CHAD A. READLER.
JOHN MICHAEL PETERSON, Neville Peterson LLP, New
York, NY, for amici curiae Target General Merchandise
Inc., Accent-Fairchild Group Inc., All Season Imports,
2 GERSON COMPANY v. UNITED STATES
Inc., American Lighting Inc., The Gordon Companies,
Inc., Illumination International LLC, Imagine Nation
Books, Ltd., Lamrite West Inc., LED Power Inc., Precision
Lighting & Transformer, Inc., RDA Lighting Inc., Service
Lighting & Electrical Supplies, Inc., US LED, Ltd. Also
represented by RICHARD F. O'NEILL, RUSSELL ANDREW
SEMMEL.
______________________
Before LOURIE, O’MALLEY, and CHEN, Circuit Judges.
O’MALLEY, Circuit Judge.
The Gerson Company appeals a decision of the United
States Court of International Trade (“Trade Court”)
granting summary judgment in favor of the government.
See Gerson Co. v. United States, 254 F. Supp. 3d 1271 (Ct.
Int’l Trade 2017). In that decision, the court classified
Gerson’s imported light-emitting diode (“LED”) candles
under subheading 9405.40.80 of the Harmonized Tariff
Schedule of the United States (“HTSUS”)—which covers
certain “[l]amps . . . not elsewhere specified or included”—
rather than under subheading 8543.70.70—which covers
“[e]lectrical machines and apparatus,” including “[e]lectric
luminescent lamps.” We agree with the Trade Court’s
classification, and, accordingly, affirm.
I. BACKGROUND
A. The Subject Merchandise
Gerson’s imported merchandise consists of finished
decorative candle and tea light lamps made of plastic
and/or wax. The lamps are designed to resemble ordinary
candles, such as votive, pillar, taper, or tea light candles.
Unlike ordinary candles, however—which generate light
by using a wick to vaporize wax—Gerson’s candles use
battery-operated LEDs. Gerson does not dispute that its
candles serve both decorative and illuminative functions.
See Oral Arg. at 1:10–25, Gerson Co. v. United States (No.
GERSON COMPANY v. UNITED STATES 3
2018-1011), http://oralarguments.cafc.uscourts.gov/
default.aspx?fl=2018-1011.mp3.
Between January and October 2009, Gerson imported
twenty-seven entries of its candles through the Port of
Kansas City, Missouri. U.S. Customs and Border Protec-
tion (“Customs”) liquidated the merchandise under
HTSUS subheading 9405.40.80, which imposes a duty
rate of 3.9% ad valorem. That provision reads 1:
9405 Lamps and lighting fittings including
searchlights and spotlights and parts thereof, not
elsewhere specified or included; illuminated signs,
illuminated nameplates and the like, having a
permanently fixed light source, and parts thereof
not elsewhere specified or included:
40 Other electric lamps and lighting fittings:
80 Other………………………..……….3.9%
Gerson objected to Customs’ classification in four ad-
ministrative protests, arguing that its candles should
have been classified under subheading 8543.70.70, which
imposes a duty rate of 2% ad valorem. That provision
reads:
8543 Electrical machines and apparatus, having
individual functions, not specified or included
elsewhere in this chapter; parts thereof:
70 Other machines and apparatus:
70 Electric luminescent lamps………..2%
Customs denied each of Gerson’s protests, leading Gerson
to file suit in the Trade Court.
1 We cite here to the 2009 version of the HTSUS in
effect when Gerson imported the merchandise at issue.
4 GERSON COMPANY v. UNITED STATES
B. Procedural History
Presented with cross-motions for summary judgment,
the Trade Court granted judgment in favor of the gov-
ernment, finding that Customs properly classified Ger-
son’s candles under subheading 9405.40.80 (certain
“[l]amps . . . not elsewhere specified or included”) rather
than 8543.70.70 (“[e]lectrical machines and apparatus,”
including “[e]lectric luminescent lamps”). Gerson, 254 F.
Supp. 3d at 1281.
The court observed that it is at least “plausible” to
read heading 8543 as covering Gerson’s candles to the
extent they qualify as “electrical machines and appa-
ratus.” Id. at 1276. But the court rejected that reading as
impermissibly expanding the scope of heading 8543 and
unduly narrowing the scope of heading 9405. Id. at 1277–
78. The court also determined that such a reading would
be inconsistent with the World Customs Organization’s
Harmonized Commodity Description and Coding System
(“HS”) Explanatory Notes (“ENs”), which suggest that
chapter 94 is reserved for finished household lamps like
Gerson’s candles, while chapter 85 is reserved for unfin-
ished lamps used in conjunction with other electrical
devices. Id. at 1278–80. The court therefore classified the
candles under subheading 9405.40.80. Id. at 1281.
Gerson timely appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(5).
II. DISCUSSION
“We review a grant of summary judgment by the
Court of International Trade for correctness as a matter of
law and decide de novo the proper interpretation of the
tariff provisions as well as whether there are genuine
issues of material fact to preclude summary judgment.”
Otter Prods., LLC v. United States, 834 F.3d 1369, 1374–
75 (Fed. Cir. 2016). “Although we review the decision[] of
the [Trade Court] de novo, we give great weight to the
GERSON COMPANY v. UNITED STATES 5
informed opinion of the [Trade Court] and it is nearly
always the starting point of our analysis.” Schlumberger
Tech. Corp. v. United States, 845 F.3d 1158, 1162 (Fed.
Cir. 2017) (internal quotation marks omitted).
Classifying articles under the HTSUS is a two-step
process. A court first determines the proper meaning of
specific terms in the tariff provisions, which is a question
of law that we review without deference. Otter Prods.,
834 F.3d at 1375. Next, the court determines under
which subheading the subject merchandise is most appro-
priately classified, which is a question of fact that we
review for clear error. Id. But when, as here, there is no
dispute as to the nature of the merchandise, the two-step
classification analysis “collapses entirely into a question
of law.” Id. (internal quotation marks omitted).
For the reasons stated below, we agree with the Trade
Court that Gerson’s candles fall within heading 9405
rather than heading 8543. We also agree with the court
that Gerson cannot use subheading 8543.70.70 to expand
the scope of heading 8543.
A. The Trade Court Correctly Classified Gerson’s Candles
Under Heading 9405 Rather than Heading 8543
“The HTSUS scheme is organized by headings, each of
which has one or more subheadings; the headings set
forth general categories of merchandise, and the subhead-
ings provide a more particularized segregation of the
goods within each category.” Id. (internal quotation
marks omitted). “The proper classification of merchan-
dise entering the United States is governed by the Gen-
eral Rules of Interpretation (‘GRIs’) of the HTSUS and the
Additional United States Rules of Interpretation.” 2 Id.
2 The Additional United States Rules of Interpreta-
tion are not relevant here because they govern particular
6 GERSON COMPANY v. UNITED STATES
We apply the GRIs in numerical order, beginning with
GRI 1, which provides that “classification shall be deter-
mined according to the terms of the headings and any
relative section or chapter notes.” La Crosse Tech., Ltd. v.
United States, 723 F.3d 1353, 1358 (Fed. Cir. 2013). And,
where an “imported article is described in whole by a
single classification heading or subheading, then that
single classification applies, and the succeeding GRIs are
inoperative.” Id. (internal quotation marks omitted).
We therefore begin, as we must, “with the language of
the headings.” Orlando Food Corp. v. United States, 140
F.3d 1437, 1440 (Fed. Cir. 1998). The two competing
headings at issue here are headings 9405 and 8543. The
former covers “[l]amps and lighting fittings including
searchlights and spotlights and parts thereof, not else-
where specified or included.” The parties agree that
Gerson’s candles qualify as “lamps,” as that term is com-
monly understood. For a lamp to be classifiable under
heading 9405, however, the plain language of the heading
requires that the lamp not be “elsewhere specified or
included,” meaning that the lamp must not be covered by
any other heading in any chapter of the HTSUS. This
criterion is consistent with chapter 94’s Note 1(f), which
excludes from chapter 94’s scope “[l]amps or lighting
fittings of chapter 85.” Gerson does not contend on appeal
that its candles fall within any chapter other than chapter
85, nor does it contend that its candles fall within any
heading other than 8543. Thus, if Gerson’s candles are
classifiable under heading 8543, the terms of heading
9405 and Note 1(f) preclude classification under heading
9405.
Heading 8543 covers “[e]lectrical machines and appa-
ratus, having individual functions, not specified or includ-
use and textile provisions not at issue in this case. See
ARI 1(a)–(d); see also Schlumberger, 845 F.3d at 1163 n.5.
GERSON COMPANY v. UNITED STATES 7
ed elsewhere in this chapter.” As an initial matter, the
heading does not refer to “lamps,” which both parties
agree Gerson’s candles are. 3 And, as the Trade Court
observed, the term “electrical machines and apparatus”
recited in heading 8543 “is not free of ambiguity” standing
alone. Gerson, 254 F. Supp. 3d at 1277. On the one hand,
it is “plausible” to read heading 8543 broadly as encom-
passing Gerson’s candles, at least in a “hyper-technical
sense,” because the candles use electricity to operate and
therefore arguably qualify as “electrical machines and
apparatus.” Id. at 1276–77. On the other hand, the
terms “machine” and “apparatus” generally connote
equipment designed specifically to carry out a particular
function. See Webster’s New World College Dictionary 67
(4th ed. 2009) (defining “apparatus” to mean “any complex
device or machine for a specific use”); id. at 860 (defining
“machine” to mean “a structure consisting of a framework
and various fixed and moving parts, for doing some kind
of work” and “any device thought of as functioning in such
a way, as . . . an electronic computer”). 4 Those terms
3 Given that heading 8543 does not refer to “lamps,”
it is questionable whether the plain language of heading
9405 and chapter 94’s Note 1(f)—which each exclude from
chapter 94’s scope only “lamps” specified elsewhere—
preclude classification of Gerson’s lamps in heading 9405.
In contrast to heading 8543, headings 8513 (certain
“[p]ortable electric lamps designed to function by their
own source of energy”) and 8539 (“[e]lectrical filament or
discharge lamps, including sealed beam lamp units and
ultraviolet or infrared lamps; arc lamps”) do refer to
“lamps.” Gerson does not argue on appeal that its candles
are classifiable under either of these headings, however.
4 The parties do not proffer dictionary definitions
for the terms “machine” or “apparatus.” We nevertheless
take judicial notice of the common dictionary definitions
8 GERSON COMPANY v. UNITED STATES
would seem not to cover Gerson’s candles, which are
decorative articles that also serve an illuminative func-
tion. Cf. La Crosse, 723 F.3d at 1359 (rejecting classifica-
tion under GRI 3(b) predicated on a failure to
acknowledge “the key function of the devices at issue”).
Heading 8543’s scope becomes clearer, however, when
read in context of the HTSUS as a whole. The provision
does not exist in a vacuum, and we must read it in con-
junction with other relevant provisions to discern its
meaning. See id. at 1361 (reading headings “together and
viewed in light of their respective Explanatory Notes” to
conclude that they “set out mutually exclusive categories
of meteorological devices”); cf. King v. Burwell, 135 S. Ct.
2480, 2489 (2015) (“[O]ftentimes the meaning—or ambi-
guity—of certain words or phrases may only become
evident when placed in context. So when deciding wheth-
er the language is plain, we must read the words in their
context and with a view to their place in the overall
statutory scheme. Our duty, after all, is to construe
statutes, not isolated provisions.” (citations and internal
quotation marks omitted)).
When so read, the HTSUS makes clear that Gerson’s
candles belong in heading 9405 rather than in heading
8543. If one were to read heading 8543 as covering Ger-
son’s candles, it would cover every electric lamp, because
all such lamps use electricity to generate light. And, by
operation of Note 1(f), such lamps could not be classified
under heading 9405. In other words, heading 9405 would
be constrained to only non-electric lamps. That reading,
as the Trade Court noted, “would impose a specific, and
drastic, limitation on the scope of heading 9405, HTSUS
that the article description for that heading does not
express or suggest.” Gerson, 254 F. Supp. 3d at 1278. In
of those terms. See Stewart-Warner Corp. v. United
States, 748 F.2d 663, 669 (Fed. Cir. 1984).
GERSON COMPANY v. UNITED STATES 9
fact, such a reading would effectively remove electric
“searchlights” and “spotlights” from heading 9405 even
though those devices are expressly provided for in that
heading. See HTSUS Hdg. 9405 (“Lamps and lighting
fittings including searchlights and spotlights and parts
thereof” (emphasis added)). We agree with the Trade
Court, therefore, that Gerson’s candles do not fall within
heading 8543.
The ENs to the relevant chapters further support the
Trade Court’s ruling. 5 See Otter Prods., 834 F.3d at 1375
(“After consulting the headings and section or chapter
notes, we may also consult the World Customs Organiza-
tion’s Explanatory Notes, which accompany each chapter
of the HTSUS.”); StoreWALL, LLC v. United States, 644
F.3d 1358, 1363 (Fed. Cir. 2011) (“Although not binding,
where a tariff term is ambiguous the Explanatory Notes
may provide persuasive and clearly relevant guidance to
the meaning of the term.” (internal quotation marks
omitted)). Explanatory Note 94.05, for example, states
that the term “lamps” in heading 9405 refers to lamps
“constituted of any material” and that use “any source of
light,” including “electricity.” EN 94.05(I) (emphases
added). That EN also provides examples of lamps that
fall within the heading and includes those that are “nor-
mally used for the illumination of rooms” such as “chande-
liers” and “table lamps,” as well as “[c]andelabra” and
“candlesticks.” Id.; see also Pomeroy Collection, Ltd. v.
5 Unlike the HTSUS section and chapter notes—
such as chapter 94’s Note 1(f)—the ENs “are not legally
binding or dispositive, but they may be consulted for
guidance and are generally indicative of the proper inter-
pretation of the various HTSUS provisions.” BenQ Am.
Corp. v. United States, 646 F.3d 1371, 1376 (Fed. Cir.
2011). We cite here to the 2007 version of the ENs that
were in effect when Gerson imported its merchandise.
10 GERSON COMPANY v. UNITED STATES
United States, 559 F. Supp. 2d 1374, 1386 (Ct. Int’l Trade
2008) (noting that heading 9405 covers “candle holders
and candle lamps”). The notes therefore suggest that
chapter 94 was intended to include at least finished,
standalone electric lamps used in the home.
Chapter 85’s ENs, by contrast, state that chapter 85
includes “[c]ertain electrical goods not generally used
independently, but designed to play a particular role as
components, in electrical equipment,” including
“[e]lectrical filament or discharge lamps.” EN 85(A)(6)
(emphasis added); HS Hdg. 85.39. These ENs therefore
suggest that chapter 85 was intended to include at least
unfinished lamps that are used in conjunction with other
electrical equipment. As the Trade Court found, Gerson’s
candles more closely resemble the lamps described in
chapter 94 than they do the lamps described in chapter
85. Gerson, 254 F. Supp. 3d at 1277.
Gerson challenges the Trade Court’s ruling on several
grounds. Gerson first argues that, by acknowledging that
the candles “plausibly” fall within heading 8543, the
Trade Court found that the candles are prima facie classi-
fiable in that heading, which should have ended the
inquiry. Gerson reads too much into the Trade Court’s
choice of words. While the court did say that it was
“plausible” to read heading 8543 as covering Gerson’s
candles insofar as the candles, like all electrical lamps
ever in existence, qualify in the abstract as electrical
machines or apparatus, the court correctly and emphati-
cally rejected that reading as nonsensical. The court
noted that such a reading would impermissibly expand
the scope of heading 8543 and diminish the scope of
heading 9405. Thus, far from finding that the candles are
classifiable under heading 8543, the court found that
reading implausible.
Gerson next argues that the Trade Court erred by al-
legedly using the ENs to displace the plain language of
GERSON COMPANY v. UNITED STATES 11
heading 8543. Gerson relies heavily on our decision in
Midwest of Cannon Falls, Inc. v. United States, 122 F.3d
1423 (Fed. Cir. 1997), superseded on other grounds as
stated in WWRD US, LLC v. United States, 886 F.3d 1228
(Fed. Cir. 2018), to support its argument. That case,
however, is inapposite. There, the Trade Court held that
earthenware jack-o’-lantern mugs and pitchers did not fall
within a heading covering “other festive, carnival or other
entertainment articles” because all the examples provided
in the ENs for the relevant chapter were non-functional in
nature. Id. at 1429. In other words, the Trade Court in
Midwest used the ENs to hold “as a matter of law that
when an item with a particular ornamentation . . . serves
a utilitarian function . . . , it must be classified under the
utilitarian article provision.” Id. at 1428–29. We re-
versed, holding that it was improper to employ the ENs’
“limiting characteristics to narrow the language of the
classification heading itself,” which was otherwise unam-
biguous. Id. at 1429; see Airflow Tech., Inc. v. United
States, 524 F.3d 1287, 1293 (Fed. Cir. 2008) (“[W]hen the
language of the tariff provision is unambiguous and the
Explanatory Notes contradictory, we do not afford [the
Notes] any weight.” (internal quotation marks omitted)).
The Trade Court committed no such error here. First,
unlike in Midwest, the language of heading 8543 is am-
biguous standing alone, as described above. Second, the
court here construed heading 8543 in view of heading
9405 to conclude that it does not cover Gerson’s candles.
Only after having done that did the court note that the
ENs supported its construction. In other words, the
Trade Court did not begin its analysis by applying limit-
ing characteristics gleaned from the ENs to heading 8543,
as in Midwest. Third, the court here did not use the ENs
to limit the scope of the headings. Rather, the court used
the ENs merely to “clarify the scope” of the language in
heading 8534, which is “entirely proper.” See LeMans
Corp. v. United States, 660 F.3d 1311, 1320–21 (Fed. Cir.
12 GERSON COMPANY v. UNITED STATES
2011) (approving consideration of the ENs in a similar
context, and noting that the Trade Court “did not find
that the Explanatory Notes precluded classification of
LeMans’ goods as sports equipment” but rather “found
only that these examples informed its interpretation of
the term ‘sports equipment’”); StoreWALL, 644 F.3d at
1363 (“[T]he Court of International Trade’s importation of
the ‘rack exclusion’ from the Explanatory Notes into its
definition of ‘unit furniture’ does not contradict the com-
mon commercial meaning of ‘unit furniture,’ but instead
clarifies the scope of the term.”).
Finally, Gerson argues that the Trade Court erred to
the extent it employed a “class or kind” analysis. Gerson
pounces on the Trade Court’s statement that its candles
“are within a class or kind of electric lamps that are self-
contained, i.e., independently used,” and therefore fall
within chapter 94 rather than chapter 85. Gerson, 254 F.
Supp. 3d at 1277. Gerson asserts that this type of “class
or kind” analysis is only appropriate when the heading at
issue is a “use” heading—i.e., one that refers to products
by their use. See BenQ Am. Corp. v. United States, 646
F.3d 1371, 1377–78 (Fed. Cir. 2011). Here, Gerson as-
serts, the headings at issue are eo nomine provisions—i.e.,
ones that refer to products by their specific names. See
La Crosse, 723 F.3d at 1358.
Regardless of whether these provisions are use or eo
nomine provisions, the Trade Court did not perform a
“class or kind” analysis, as evidenced by the fact that the
court did not reference the factors that govern that analy-
sis. See BenQ, 646 F.3d at 1377–80; United States v.
Carborundum Co., 536 F.2d 373, 377 (CCPA 1976).
Rather than using the phrase “class or kind” to invoke a
legal doctrine, the Trade Court used the phrase for its
ordinary meaning to make the point that Gerson’s candles
are the type of articles classified under heading 9405
GERSON COMPANY v. UNITED STATES 13
rather than heading 8543. The court’s analysis was
proper. 6
In sum, the Trade Court did not err in determining
that Gerson’s candles fall within heading 9405 rather
than heading 8543. Gerson does not dispute that, if its
candles fall within heading 9405, the appropriate sub-
heading is 9405.40.80, which covers “other” electric lamps
not made of a “base metal.”
That conclusion alone precludes classification under
subheading 8543.70.70. We nevertheless address below
Gerson’s and its amici’s 7 subheading-specific arguments
6 Despite stating in its opening brief that heading
9405 is eo nomine, Gerson argues in reply that the head-
ing is in fact a “basket” provision insofar as it contains the
qualifying phrase “not otherwise specified or included.”
Reply Br. 2; see R.T. Foods, Inc. v. United States, 757 F.3d
1349, 1354 (Fed. Cir. 2014) (stating that a heading “is a
‘basket provision’” if it contains “the terms ‘not elsewhere
specified or included’”). “[C]lassification of imported
merchandise in a basket provision is only appropriate if
there is no tariff category that covers the merchandise
more specifically.” R.T. Foods, 757 F.3d at 1354 (internal
quotation marks omitted). But this characterization does
little to help Gerson. As explained above, heading 8543
does not cover Gerson’s candles. As a result, the candles
fall within heading 9405, regardless of how that provision
is characterized. Further, heading 8543 is also a “basket”
provision because it covers only those electrical machines
and apparatus “not specified or included elsewhere in” the
chapter. Thus, according to Gerson’s logic, classification
under heading 8543 would also be disfavored.
7 Target General Merchandise Inc. and twelve other
companies whose imported LED devices were classified by
Customs under heading 9405 filed an amicus brief in
support of Gerson.
14 GERSON COMPANY v. UNITED STATES
to clarify the role that subheadings play in the classifica-
tion analysis.
B. The Trade Court Correctly Found that Gerson’s Can-
dles Are Not Classifiable Under Subheading 8543.70.70
Gerson and its amici ask us to look past heading 8543
and to focus instead on subheading 8543.70.70, which
covers “electric luminescent lamps.” They assert that
Gerson’s candles use LEDs to produce light and therefore
indisputably qualify as “electric luminescent lamps.”
They argue, moreover, that the placement of subheading
8543.70.70 within heading 8543 evidences Congress’s
intent for all “electric luminescent lamps” to qualify as
“electrical machines and apparatus.” We disagree on all
counts.
Gerson’s and its amici’s “bottom-up” analysis—which
begins with a subheading and proceeds upward through
the headings—is backwards. Classification under the
GRIs must take a “top-down” approach, beginning, “as it
must, with the language of the headings,” and ending
with the language of the subheadings. Orlando Food, 140
F.3d at 1440. In particular, under GRI 1, a court must
first determine whether the merchandise is correctly
classified under a particular heading of the HTSUS. See
Otter Prods., 834 F.3d at 1375 (“According to GRI 1, the
HTSUS headings and section or chapter notes govern the
classification of a product.”); BenQ, 646 F.3d at 1376
(“When determining the correct classification for mer-
chandise, a court first construes the language of the
headings in question, in light of any related section or
chapter notes.”); see also Orlando Food, 140 F.3d at 1440
(“[W]hen determining which heading is the more specific,
and hence the more appropriate for classification, a court
should compare only the language of the headings and not
the language of the subheadings.”). “Only after determin-
ing that a product is classifiable under the heading should
the court look to the subheadings to find the correct
GERSON COMPANY v. UNITED STATES 15
classification for the merchandise.” Orlando Food, 140
F.3d at 1440 (emphasis added); see LeMans, 660 F.3d at
1316 (“We are first to look to headings, then subheadings,
to determine the proper classification.” (emphasis added)).
The reason for this analytic approach is simple—it
ensures that the more specific subheading characteriza-
tions are informed by the more general headings in which
they appear. Beginning the analysis with the subhead-
ing, as Gerson urges, would effectively divorce the analy-
sis from the necessary context provided by the higher-
level headings. See Orlando Food, 140 F.3d at 1440
(holding that the Trade Court’s “analysis contradicted
GRI 1” because “it construed only the language of the
subheadings rather than the language of the headings in
classifying the product”). Further, Gerson’s insistence
that we consider only subheading 8543.70.70 would allow
that provision to expand the scope of heading 8543, which
would correspondingly diminish the scope of heading
9405. Such a reading is impermissible, as headings “are
to be evaluated without reference to their subheadings,
which cannot be used to expand the scope of their respec-
tive headings.” R.T. Foods, Inc. v. United States, 757 F.3d
1349, 1353 (Fed. Cir. 2014).
Gerson and its amici next suggest that, under the
Trade Court’s logic, no electric luminescent lamp would
ever be classifiable under subheading 8543.70.70 because
such lamps would not be considered “electrical machines
and apparatus” as contemplated by heading 8543. They
assert that subheading 8543.70.70 “becomes a nullity,
into which no product can ever fall.” Amici Br. 11. We
find this argument both exaggerated and unpersuasive.
While those products that would fall within subheading
8543.70.70 are not before us, we are satisfied that the
Trade Court’s holding leaves ample room in that subhead-
ing for certain electric luminescent devices that fall
within the scope of heading 8543. See EN 85.43(16)
(listing as examples “[e]lectro-luminescent devices, gener-
16 GERSON COMPANY v. UNITED STATES
ally in strips, plates, or panels, and based on electro-
luminescent substances (e.g., zinc sulphide) placed be-
tween two layers of conductive material”).
We therefore reject Gerson’s and its amici’s subhead-
ing-specific arguments.
III. CONCLUSION
We have considered Gerson’s and its amici’s remain-
ing arguments and find them unpersuasive. The Trade
Court correctly determined that Gerson’s candles are
classifiable under subheading 9405.40.80, subject to a
duty rate of 3.9% ad valorem.
AFFIRMED