Home Depot, U.S.A., Inc. v. United States

Slip Op. 06-49

UNITED STATES COURT OF INTERNATIONAL TRADE

__________________________________________

:

THE HOME DEPOT, U.S.A., INC., :

:

Plaintiff, :

: Before: Carman, Judge

v. :

: Consol. Court No. 00-00061

UNITED STATES, :

:

Defendant. :

__________________________________________:

[Judgment for Plaintiff in part and Defendant in part.]

Dated: April 7, 2006

Bryan Cave LLP (Adam J. Thurston, David R. Stepp, Michael B. Zara), Los Angeles, CA,

for Plaintiff.

Peter D. Keisler, Assistant Attorney General; Barbara S. Williams, Attorney in Charge,

International Trade Field Office, U.S. Department of Justice; Jack S. Rockafellow, Trial

Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice; Beth

Brotman, Of Counsel, Office of Assistant Chief Counsel, International Trade Litigation, U.S.

Bureau of Customs and Border Protection, for Defendant.

OPINION

CARMAN, Judge: The matter before this Court follows a bench trial in October 2005.

Plaintiff Home Depot, U.S.A., Inc., (“Home Depot” or “Plaintiff”) challenges the United States

Customs Service’s1 (“Customs” or “Defendant”) classification of lighting fixtures. The subject

goods are identified by Stock Keeping Unit (“SKU”) numbers assigned by Home Depot. This

case involves a total of 124 SKUs, twenty of which are agreed upon represented SKUs. This

1

Now known as the United States Bureau of Customs and Border Protection.

Consol. Court No. 00-00061 Page 2

consolidated case includes nine court numbers: 00-00061; 00-00062; 00-00063; 00-00064; 00-

00363; 00-00364; 00-00365; 00-00440; and 01-00107. This Court finds for Plaintiff in part and

for Defendant in part as discussed herein.

BACKGROUND

Home Depot is the importer of record for the entries which are the subject merchandise at

issue. Customs classified the subject merchandise – various lighting fixtures – under the

Harmonized Tariff Schedule of the United States (“HTSUS”) subheading 9405.10.60 with a 7.6

percent duty. Home Depot claims the subject merchandise is properly classified under HTSUS

subheading 9405.10.80 with a 3.9 percent duty.2 Home Depot timely filed protests and

summons, and all liquidated duties were paid. Nine cases were properly filed with this court

between December 2001 and January 2002. In July 2003, parties met in Atlanta, Georgia, to

review physical samples of the merchandise and attempted to designate representative SKUs with

settlement as an ultimate goal. These negotiations, however, were unsuccessful. In September

2004, parties began a parallel track of discovery in preparation of litigation. In March 2005, this

Court granted parties joint motion to consolidate cases. This Court held a bench trial during the

week of October 17th-21st, on October 24th, during October 26th-28th, and adjourned on

November 2, 2005.

2

This Court notes that the subject merchandise was entered into the customs territory of

the United States during the years of 2001 and 2002. During this period of import, the

classifications and duty rates remained unchanged.

Consol. Court No. 00-00061 Page 3

STANDARD OF REVIEW

Jurisdiction of this Court is found under 28 U.S.C. § 1581(a) (2000). Although Custom’s

decisions are entitled to a presumption of correctness pursuant to 28 U.S.C. § 2639(a)(1) (2000),

this Court makes its determinations upon the basis of the record before it, not upon the record

developed by Customs. See United States v. Mead Corp., 533 U.S. 218, 233 n.16 (2001).

Accordingly, this Court makes the following findings of fact and conclusions of law de novo.

See 28 U.S.C. § 2640(a) (2000).

DISCUSSION

The common issue throughout this consolidated case is the correct classification of the

subject goods, more specifically whether metal or non-metal imparts the essential character of the

lighting fixtures. Parties stipulated that the proper heading is 9405 and six-digit subheading is

9405.10. The parties assert that the ultimate determination is between two potentially applicable

eight-digit subheadings: 9405.10.60 and 9405.10.80.3 See Final Amended Pretrial Order (“Final

3

The relevant heading and subheadings cover:

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:

9405.10 Chandeliers and other electric ceiling or wall

lighting fittings, excluding those of a kind used for

lighting public open spaces or thoroughfares:

Of base metal:

9405.10.40 Of brass...........3.9% ad valorem

9405.10.60 Other................7.6% ad valorem

Consol. Court No. 00-00061 Page 4

Pretrial Order”), Schedule C, ¶ 6. Customs originally classified the subject fixtures under

HTSUS subheading 9405.10.60, claiming that these goods were “of base metal other than of

brass.”4 Home Depot, however, claims the subject merchandise is properly classified under

HTSUS subheading 9405.10.80, challenging that these fixtures are “other than of base metal,”

and the non-metal consists of glass, plastic or wood. Regardless of competing tariff

classifications purposed by parties, this Court is charged with reaching the correct classification.

See Jarvis Clark Co. v. United States, 733 F.2d 873, 880 (Fed. Cir. 1984).

Parties urge this Court to adopt a single factor objective test for the essential character

analysis. This the Court cannot do because both statute and case law instructs otherwise.

Plaintiff claims the subject goods are decorative light fixtures, evidenced by Home Depot’s

selling these fixtures in a separate department from its utility fixtures, such as mere lamp

holders.5 (Pl. The Home Depot, U.S.A., Inc.’s Post-Trial Br. (“Pl. Post-Trial Br.”) 7.) Plaintiff

advances that “Defendant seeks to remove the ‘decorative’ from ‘decorative light fixtures.’” (Pl.

Post-Tr. Br. 1.) Plaintiff advocates that “this Court can primarily look to the visible surface area

9405.10.80 Other............................3.9% ad valorem

4

Although in some instances the finish on the metal was brass, polished brass or antique

brass, Plaintiff’s witness Mr. St. John explained that the metal component is “plated steel with an

electroplate polished brass finish.” (Trial Tr. 66, Oct. 17.) This Court finds that parties

sufficiently demonstrated that the metal base is not “of brass” so that the proper metal

subheading for consideration is 9405.10.80, of base metal other than of brass.

5

A lamp holder “is simply the utility holder that the bulb screws in.” (Trial Tr. 77, Oct.

17.) Lamp holders are just one component of these lighting fixtures. Neither a lamp holder nor a

lighting fixture, however, emit light. The lamp, which is known in the vernacular as a light bulb,

produces light. This Court notes that the subject fixtures are imported without lamps, and there

is a separate heading for lamps – 8539 – in the HTSUS. (Trial Tr. 1737, Nov. 2.)

Consol. Court No. 00-00061 Page 5

of that fixture” to determine the essential character of the subject fixtures.6 (Pl. Post-Tr. Br. 19.)

Defendant offers a different test that focuses on the “structural framework” as the essential

character for all 124 SKUs. (Def.’s Proposed Finds of Fact & Post-Trial Brief (“Def. Post-Tr.

Br.”) 11.)

Both parties’ recommendations have appeal. Industries and parties should be able to rely

on prior case law and decisions because “international trade prospers best when the participants

can rely on established rules and regulations.” Hemscheidt Corp. v. United States, 72 F.3d 868,

872 (Fed. Cir. 1995). However, reliance on uniformity cannot be obtained by forsaking a court’s

duty of a proper legal analysis. Despite the appeal that a single factor, bright line test has for

predictability and uniformity, this Court must reject both parties’ suggestions. An essential

character inquiry requires a fact intensive analysis. See Toy Biz, Inc. v. United States, 26 CIT

816, 828, 219 F. Supp. 2d 1289 (2002).

While Defendant asserts “metal . . . is always the only indispensable material . . .

which function as a structure” (Def. Post-Tr. Br. 2 (footnote omitted)), this Court notes that

structure is only one factor that must be considered. The same applies to Plaintiff’s submission

of a visible surface area bright line rule. In the case at bar, this Court is to consider all facts in

evidence to determine essential character. In reviewing an essential character determination in

Better Home Plastics Corp. v. United States, the Court of Appeals for the Federal Circuit

(“CAFC”) saw “no error in the [Court of International Trade’s] ultimate conclusion of essential

character” because the trial court “carefully consider[ed] all of the facts” and conducted a

6

Plaintiff notes that “[o]ther facts may override this presumption in a special case, but

this general, objective standard [the visible surface area test] serves the task at hand.” (Pl. Post-

Tr. Br. 19.)

Consol. Court No. 00-00061 Page 6

“reasoned balancing of all the facts.” 119 F.3d 969, 971 (Fed. Cir. 1997) (“Better Home II”).

Although the task is laborious, this Court will accomplish its duty by considering all of the

evidence presented, assigning weight to each piece of evidence, and deciding whether the metal

or non-metal components impart the essential character of the subject fixture.

I. FACTS

A. Uncontested Facts to Which the Parties Stipulate

The parties agreed upon certain facts, and this Court adopts them. The Uncontested Facts

to Which the Parties Stipulate (“Uncontested Facts”) are as follows:

1. The merchandise at issue in the nine consolidated cases consists of the

lighting fixtures, identified by Stock Keeping Unit (“SKU”) number, listed

in the joint report by the parties filed September 20, 2005, entitled Joint

Report Regarding Lighting Fixtures In The Nine Consolidated Cases And

Stipulations Regarding Representative Fixtures (the “Joint Report”).7

2. Plaintiff is importer of the merchandise at issue set forth in the Joint

Report.

3. The Court has [j]urisdiction over all of the [] protests and entries listed on

the Joint Report.

4. The protests and summonses at issue in the above-captioned nine

consolidated cases were timely filed.

7

This Court notes that the “Amended (10/4/05) Joint Report Regarding Lighting Fixtures

in the Nine Consolidated Cases and Stipulations Regarding Representative Fixtures” (“Joint

Report”), Schedule K of Final Pretrial Order, supercedes the previous one and reference in this

decision is to the Amended (10/4/05) Joint Report.

Consol. Court No. 00-00061 Page 7

5. All liquidated duties have been paid.

6. The subject merchandise listed on the Joint Report consists of “chandeliers

and other electric ceiling or wall lighting fittings, excluding those of a kind

used for lighting public open spaces or thoroughfares,” within the meaning

of subheading 9405.10 of the [HTSUS].

7. The subject merchandise listed on the Joint Report was classified by

Customs as chandeliers and other electric ceiling or wall lighting fittings,

excluding those of a kind used for lighting public open spaces or

thoroughfares, of base metal [other than of brass], under HTSUS

subheading 9405.10.60, and were assessed with duty at the rate of 7.6

percent ad valorem.

Final Pretrial Order, Schedule C.

B. Findings of Fact Established at Trial

In addition to the Uncontested Facts, this Court finds the following facts were established

by a preponderance of the evidence during the bench trial. The following findings are not

exhaustive as specific findings will be discussed in the individual fixture analyses below.

1. Home Depot imported the subject merchandise into the United States from

various countries, under numerous entries, and through different ports.

2. There are 124 SKUs at issue in this consolidated case for which parties

presented evidence during trial. (Trial Tr. 1785, Nov. 2.)

3. Of the 124 SKUS at issue, eleven were deemed “representative SKUs”

covering twenty “represented SKUs” by stipulation. (Joint Report.)

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4. The subject goods consist of indoor and outdoor ceiling and wall light

fixtures.

5. The subject goods are sold in Home Depot’s decorative light department.

6. The subject merchandise is for personal homes and their surrounding

exterior spaces.

7. Plaintiff’s proposed classification is HTSUS subheading 9405.10.80 with

a duty rate of 3.9 percent ad valorem.

8. Plaintiff’s fact witness Greg St. John, Interior Lighting Merchant for

Home Depot, is credible.

9. Plaintiff’s expert witness David Mintz, Lighting Designer of Mintz

Lighting Group, is credible.

10. Plaintiff’s expert witness Alan Goedde, Economist at Freeman & Mills,

Inc., in Los Angeles, is credible.8

11. Plaintiff’s witness Patricia Golembieski, Senior Analyst of Customs

Compliance at Home Depot, is credible.

12. Plaintiff’s witness Edward Kozloski, Corporate Director of Quality at

Specialized Technology Resources, Inc. (“STR”),9 is credible.

8

Although admitted as an expert witness, this Court finds Mr. Goedde’s testimony

largely irrelevant to the issues in this case.

9

STR is the consulting firm retained by Home Depot in March 2003 to measure the

component visible surface area and weight of the physical samples of the fixtures at issue. “STR

provides consumer products testing, auditing and consulting services to major manufactures,

importers and retailers around the world.” (Trial Tr. 1539, Oct. 28.)

Consol. Court No. 00-00061 Page 9

13. The STR process used to take estimated visible surface area and weight

measurements is sufficiently reliable.

14. Defendant’s expert witness, Mark S. Rea, who holds a P.h.D. in

biophysics, is credible.10

15. Subject fixtures are composite goods, but the main two components vying

for essential character are: (1) base metal, which is not of brass; and

(2) nonmetal, which is usually glass except for a few instances in which

plastic or wood replaces glass.11

16. Subject merchandise is imported without lamps.12

10

Although admitted as an expert witness, Dr. Rea’s lighting expertise “focused on

various technical aspects of lighting and the human response to lighting.” (Trial Tr. 724, Oct.

21.) Not only are neither of these aspects of lighting at issue but this Court also notes that the

subject fixtures are not imported in an illuminated state. Therefore, the Court accords minimal

weight to Dr. Rea’s testimony.

11

In all but four of the fixtures, glass comprises the main non-metal component. There

are a few instances where plastic – SKUs 342-071, 342-103, and 342-104 – or wood – SKU 630-

304 – is considered the main component in lieu of glass.

12

Parties presented testimony regarding these fixtures in their illuminated state

notwithstanding the fact that fixtures are imported without lamps. (Trial Tr. 684, Oct. 20.) This

Court, however, is confined by the well-established principle that “the dutiable classification of

articles imported must be ascertained by an examination of the imported article itself, in the

condition in which it is imported.” Worthington v. Robbins, 139 U.S. 337, 341 (1891); see also

Simod Am. Corp. v. United States, 872 F.2d 1572, 1577 (Fed. Cir. 1989) (“It is a principle of

Customs law that imported merchandise is dutiable in its condition as imported.”) Accordingly,

testimony regarding the fixtures in their illuminated state will be considered only insofar as it

may affect another factor, such as function or marketability.

Consol. Court No. 00-00061 Page 10

II. EVIDENCE

A. Admissibility

Prior to trial, parties submitted respective lists of proposed exhibits for trial. (Final

Pretrial Order, Schedule H-1, H-2.) Plaintiff originally listed 1341 exhibits, and Defendant

offered 23 exhibits to be admitted as evidence. (Final Pretrial Order, Schedule H-1, H-2; see

also Pl.’s Mot. for Identification of Ex. Subject to Objection, and Admission into Evidence of

Ex. Not Subject to Objection (“Pl. Ex. Mot.”).) On the first day of trial, Plaintiff made an

application for its uncontroverted exhibits – some photographs, some physical samples, all

protests and all entries – to be moved into evidence and the balance of its controverted exhibits to

be marked for identification. (Pl. Ex. Mot., Ex. A.) Defendant declined to raise an objection,

and this Court granted, from the bench, Plaintiff’s motion. (Trial Tr. 9-10, Oct. 17.)

After Plaintiff’s application was granted, Defendant moved for its list of exhibits,

Schedule H-2 of the Final Pretrial Order, to be marked for identification.13 This Court granted

Defendant’s application upon no objection from Plaintiff. (Id. at 20.) Throughout the trial,

various exhibits were marked for identification, some admitted into evidence and others

withdrawn. Upon the close of trial, approximately 1339 exhibits were admitted into evidence.

B. Photographs

One contentious issue regarding admissibility was the photographs of the SKUs for which

there are no physical samples.14 Defendant objected to these exhibits on the basis of authenticity

13

Defendant informed the Court that Defendant’s Exhibit O was not available at trial.

Thus, Defendant’s Exhibit O was omitted from Defendant’s list of exhibits to be marked for

identification. (Trial Tr. 19-20, Oct. 17.)

14

Plaintiff did not have physical samples for sixty-five of the fixtures at issue. (The

Home Depot, U.S.A., Inc.’s Br. Regarding Admis. of Photographic Ex.; and Offer of Proof (“Pl.

Consol. Court No. 00-00061 Page 11

for the images displayed in the photographs and inadmissible hearsay for the written content

shown in the photographs. (See Def.’s Objections to Pl.’s Tr. Mot. to Admit Photographs of

Lighting Fixtures Which Have No Samples Associated with Them (“Def. Photo Opp’n”) 4 n.6.)

Plaintiff introduced Patricia Golembieski, a customs compliance analyst and licensed customs

broker at Home Depot, as a fact witness with knowledge of the photographs. (Trial Tr. 448, Oct.

19.) Ms. Golembieski explained that these photographs are kept in Home Depot’s files “as part

of the regular course of business activities that it conducts,” (id. at 450), and that she “maintained

the records as part of [her] job” (id. at 451). According to Ms. Golembieski, Home Depot relies

on the images displayed in the photographs in the customs compliance files “to help [] classify

[a] product.” (Id. at 507.)

Ms. Golembieski testified that the SKU numbers on the photographs are “highly

reliable,” (Trial Tr. 596, Oct. 20), and as a matter of course, when setting up vendor files, the

SKU number is checked for, or if necessary assigned to, a photograph of a fixture (id. at 581,

583-84). Ms. Golembieski explained the photographs are kept in Home Depot’s vendor files.

(Id. at 578, 584, 591.) Home Depot makes “all kinds of business decisions” based upon the

vendor files, according to Ms. Golembieski. (Id. at 585.) She offered that the customs

compliance group, of which she was the team leader, within Home Depot verifies information –

such as base tables that are created from the vendor files where the photographs are kept –

through self-audits. (Id. at 587.) Ms. Golembieski testified that she is “familiar with the manner

in which the base tables are maintained and the manner in which information is put into the base

tables.” (Id. at 586.)

Photo Br.”) 1.)

Consol. Court No. 00-00061 Page 12

Ms. Golembieski proffered that there are three kinds of photographs at issue:

(1) photographs she took; (2) photographs from Home Depot’s Advertising Department (“AD”);

and (3) photographs from vendors.15 During trial, Defendant withdrew its authenticity objection

to the two photographs taken by Ms. Golembieski, and thus upon application by Plaintiff, this

Court admitted them into evidence.16 (Trial Tr. 514-15, Oct. 19.) Ms. Golembieski testified that

the vendor photographs are commonplace for Home Depot “in anticipation of an importation, to

help us classify.” (Id. at 513-14.) She testified that vendor photographs are reliable and

explained that Home Depot’s contract with the vendors explicitly requires reliability in their

transactions. (Trial Tr. 578, 589-90, Oct. 20.) Ms. Golembieski further explained that the AD

photographs are also “very reliable,” with not only legal ramifications but also economic

repercussions if a photograph is inaccurate. (Trial Tr. 504, Oct. 19.)

Upon conclusion of Ms. Golembieski’s testimony, Plaintiff sought:

[A]dmission of the photographic portion of the exhibits on the grounds that

[Plaintiff] laid a sufficient foundation for authenticity under [Federal Rule of

Evidence] 901,17 and the written information that correlates the photograph to the

15

Ms. Golembieski demonstrated the photographs are distinguishable from each other by

their labeling. (Trial Tr. 502-03, Oct. 19.) The AD photographs are exhibits: 10, 13, 15, 21, 22,

24, 25, 28, 29, 30, 31, 32, 34, 35, 39, 40, 41, 47, 50, 56, 57, 62, 64, 68, 69, 70, 74, 76, 77, 78, 79,

80, 81, 82, 85, 86, 101, 104, 115, 119, 120, 121, 122. (Trial Tr. 674, Oct. 20.) The vendor

photographs are exhibits: 2, 3, 19, 23, 36, 48, 54, 55, 58, 60, 65, 73, 87, 102, 105, 108, 110, 113,

114, 116.

16

This applied to Plaintiff’s Exhibits 4 and 126. This Court admitted these exhibits into

evidence with Defendant reserving “its right to argue about the weight that should be accorded

[to these] photograph[s].” (Trial Tr. 514-15, Oct. 19, see also id. at 559.)

17

Federal Rule of Evidence 901(b) (2005) provides, in relevant part:

Rule 901. Requirement of Authentication or Identification

...

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SKU number into evidence on the grounds that it qualifies as an exception to the

hearsay rule under [Federal Rule of Evidence] 803, subparagraph 6,18 and the

basis for the authenticity and for the hearsay exception is the same from the

standpoint of the factual foundation that it has to be laid for either theory.

(Trial Tr. 671, Oct. 20.) It is well-established that the business records exception has been

construed generously in favor of admissibility. Conoco Inc. v. Dep’t of Energy, 99 F.3d 387, 391

(Fed. Cir. 1997). Case law directs, and Defendant concedes, that the witness who authenticates

the “business records need not be the person who prepared or maintained the records, or even an

employee of the record-keeping entity, as long as the witness understands the system used to

(b) Illustrations. By way of illustration only, and not by way of

limitation, the following are examples of authentication or identification

conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. Testimony that a

matter is what it is claimed to be.

...

(9) Process or system. Evidence describing a process or system

used to produce a result and showing that the process or system

produces an accurate result.

18

Federal Rule of Evidence 803(6) (2005) provides:

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

(6) Records of Regularly Conducted Activity. – A memorandum, report,

record, or data compilation, in any form, of acts, events, conditions,

opinions, or diagnoses, made at or near the time by, or from information

transmitted by, a person with knowledge, if kept in the course of a

regularly conducted business activity, and if it was the regular practice of

that business activity to make the memorandum, report, record or data

compilation, all as shown by the testimony of the custodian or other

qualified witness, or by certification that complies with Rule 902(11), and

Rule 902(12), or a statute permitting certification, unless the source of

information or the method or circumstances of preparation indicate lack of

trustworthiness. The term “business” as used in this paragraph includes

business, institution, association, profession, occupation, and calling of

every kind, whether or not conducted for profit.

Consol. Court No. 00-00061 Page 14

prepare the records.” Id.; (see also Def. Photo Opp’n 2.) This Court found that Ms. Golembieski

not only met this threshold standard of understanding the system used to prepare the records but

also was the employee in charge of this system.

Furthermore, the CAFC has adopted the incorporation doctrine into the business record

exception. Air Land Forwarders, Inc. v. United States, 172 F.3d 1338, 1343 (Fed. Cir. 1999).

The incorporation doctrine allows third party documents generated by third parties to be admitted

if “the incorporating business rely upon the accuracy of the documented incorporated” and “there

are other circumstances indicating the trustworthiness of the document.” Id. This Court found

that the vendor photographs fell under the rubric of the incorporation doctrine because Plaintiff

satisfied both the business reliance and additional assurances factors based upon Ms.

Golembieski’s testimony. Upon consideration of evidence and court-directed briefs, this Court,

from the bench, granted Plaintiff’s application for the admission of the controverted photographs

and ruled that they were properly authenticated. (Trial Tr. 674, Oct. 20.)

C. Worksheets (Schedule J)

During a pretrial conference, this Court and parties created a worksheet scheme for each

fixture to facilitate judicial efficiency. Because there is a large volume of subject merchandise at

issue, these worksheets were intended to organize information. The worksheets are deemed

“W-” followed by a chronological number which corresponds to the SKU number sequence.19

These worksheets are part of the Final Pretrial Order as Schedule J. Originally there were a total

19

Although they were included in the worksheet number sequence, the twenty represented

SKUs do not have separate worksheets. (Trial Tr. 1785, Nov. 2.) These represented SKUs

without worksheets are: W-6, W-7, W-8, W-18, W-26, W-37, W-42, W-51, W-52, W-53, W-61,

W-66, W-67, W-71, W-88, W-89, W-92, W-99, W-100, W-123.

Consol. Court No. 00-00061 Page 15

106 worksheets, but two worksheets were withdrawn during the course of the trial.20

Consequently, by trial’s adjournment, there were only 104 worksheets in evidence. (Trial Tr.

1785, Nov. 2.)

On the first day of trial in its application for admission of exhibits, Plaintiff included the

worksheets of Schedule J in its application. (See Pl. Ex. Mot., Ex. C.) Plaintiff moved for page

two of each worksheet in Schedule J to be moved into evidence (Trial Tr. 12, Oct. 17) and

Defendant abstained from objection (id. at 13). Because Defendant objected to the some of the

content on pages one, three and four,21 Plaintiff moved for these pages to be marked for

identification. (Id.) This Court granted Plaintiff’s application. (Id. at 14.)

Page one of the worksheets contain: a brief narrative description of the fixture; the

relevant exhibits to be presented for that fixture; witnesses who will testify regarding that fixture;

a table listing the fixture’s component breakdown, each component’s estimated visible surface

area and weight in absolute and comparative measurements; each component’s functions; and

what, if any, are Defendant’s objections on that page. Page two of the worksheets lists the entries

and protest numbers associated with that SKU number. Pages three, and, if any, four, summarize

the testimony of Plaintiff’s witnesses.

The measurements supplied on the first page of the worksheets were explained by

Plaintiff’s witness Mr. Kozloski, who is the Corporate Director of Quality at STR. An STR

20

Worksheets W-20 and W-118 were withdrawn during trial. (Trial Tr. 1785, Nov. 2.)

21

At the start of trial, there were two worksheets that had four pages – W-78 and W-87 –

while the balance of the worksheets had three pages. (Trial Tr. 12-13, Oct. 17.)

Consol. Court No. 00-00061 Page 16

technician took estimated visible surface area22 and weight measurements for the components of

the physical samples. In preparation for litigation, Mr. Kozloski checked the technician’s

measurements by comparing the figures with photographs of the fixtures. (Trial Tr. 1552-53,

Oct. 28.) Mr. Kozloski concluded that some of the technician’s measurements should be revised.

Some corrections were already reflected in the worksheets and others were introduced during

trial. This Court notes that these measurements are only estimates. Accordingly, the Court

considers this fact when assigning weight to each measurement as a factor in determining

essential character.

Upon completion of its case-in-chief, Plaintiff applied to have pages one, three and four

moved into evidence. (Id. at 1613-14.) This Court found that the content on pages one, three

and four were either directly testified to or adequately adopted by witnesses as part of their

testimony. Upon consideration of all evidence and noting that there was no objection from

Defendant,23 this Court granted, from the bench, Plaintiff’s application to admit the 104

worksheets in their entirety into evidence.24 (Id. at 1615.)

22

Visible surface area is “what a person can actually see[] [w]hen the fixture is mounted

in its normal mounted position.” (Trial Tr. 1605, Oct. 28.) STR instructed its technician, Mike

Kelting, to measure the fixture’s “basic shape.” (Id. at 1641.) He took the fixture’s visible

surface area measurements by “either holding it at an arm’s length or possibly inverting it on a

bench.” (Id. at 1606.) Apparently, there were some instances where glass shades obscured the

metal rims and where metal ovals was measured as rectangles thereby understating or overstating

some measurements. (Id. at 1608-09.)

23

Defendant did not object to admitting these worksheets into evidence but did dispute

the accuracy of some portions. (Trial Tr. 1614, Oct. 28.)

24

This Court granted Plaintiff’s application noting some observations and commentaries:

the worksheets were treated “as amended because they have been amended all over the place.”

(Trial Tr. 1614, Oct. 28.) Furthermore, the worksheets in their entirety were admitted into

evidence with two exceptions: (1) on page one, the “Relevant Exhibits” and “Plaintiff’s

Witnesses” lines were “treated just for informational purposes only and not treated for

Consol. Court No. 00-00061 Page 17

III. CLASSIFICATION SCHEME

A. Presumption of Correctness

Customs enjoys a statutory presumption of correctness. An agency’s decision is

“presumed to be correct,” and “[t]he burden of proving otherwise shall rest upon the party

challenging such decision” under 28 U.S.C. § 2639(a)(1) (2000).25 This presumption of

correctness allocates the burden of proof to Plaintiff to present evidence that Customs’

classification of the subjects goods was incorrect. The CAFC has discussed this statutory

presumption and its resultant effect on litigation. It instructs:

The presumption of correctness is a procedural device that is designed to allocate,

between the two litigants to a lawsuit, the burden of producing evidence in

sufficient quantity. Specifically, the importer must produce evidence (the burden

of production portion of the burden of proof) that demonstrates by a

preponderance (the burden of persuasion portion of the burden of proof) that

Customs’ classification decision is incorrect. The presumption of correctness

certainly carries force on any factual components of a classification decision, such

as whether the subject imports fall within the scope of the tariff provision, because

facts must be proven via evidence.

Universal Elec., Inc. v. United States, 112 F.3d 488, 492 (Fed. Cir. 1997) (footnote omitted).

This presumption does not apply to pure questions of law. See id. Accordingly, Plaintiff bears

the burden to produce sufficient evidence to rebut the statutory presumption of correctness

evidentiary purposes;” and (2) on page three, fact witness Patricia Golembieski’s paragraph was

“not [] treated as substantive evidence, [the Court] rel[ied] upon that which she testified to.” (Id.

at1615.)

25

28 U.S.C. § 2639(a)(1) provides:

[I]n any civil action commenced in the Court of International Trade under section

515, 516, or 516A of the Tarriff Act of 1930, the decision of the secretary of the

Treasury, the administering authority, or the International Trade Commission is

presumed to be correct. The burden of proving otherwise shall rest upon the party

challenging such decision.

Consol. Court No. 00-00061 Page 18

accorded to Customs. Unless specified in the individual SKU discussions below, this Court finds

that Plaintiff met its burden and rebutted the statutory burden of presumption.

B. General Rules of Interpretation

Tariff classification of imported merchandise is governed by HTSUS General Rules of

Interpretation (“GRI”). See The Pillsbury Co. v. United States, 431 F.3d 1377, 1379 (Fed. Cir.

2005); Orlando Food Corp. v. United States, 140 F.3d 1437, 1439 (Fed. Cir. 1998). The GRIs

“are considered statutory provisions for all purposes.” Toy Biz, 26 CIT at 819. The GRIs should

be applied in numerical order. Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir.

1999).

The HTSUS is organized systematically: first by headings, which “set forth general

categories of merchandise;” then the headings are divided into subheadings, which provide a

“more particularized segregation of the goods within each category.” Orlando Food, 140 F.3d at

1439. This Court must follow the GRIs according to a set scheme:

The first step in analyzing the classification issue is to determine the applicable

heading, if possible, by looking to the terms of the headings and section or chapter

notes, in accordance with GRI 1. Provided that the product is classifiable under a

heading, the court must then look to the subheadings to find the correct

classification of the merchandise in question.

Bauer Nike Hockey USA, Inc. v. United States, 393 F.3d 1246, 1250 (Fed. Cir. 2004) (citation

omitted). Here, the heading is not in dispute as parties stipulate that the proper HTSUS heading

is 9405. (See Final Pretrial Order, Schedule C, ¶ 6.) This Court agrees.

Once the proper heading has been determined, the classification scheme moves into

subheading segregation under GRI 6. See Dolly, Inc. v. United States, 27 CIT __, 293 F. Supp.

2d 1340, 1343, 1351 (2003). Parties submit that the correct six-digit subheading is 9405.10

Consol. Court No. 00-00061 Page 19

under the HTSUS. This Court is in agreement. The dispute arises, however, with the proper

eight-digit subheading, which is the ultimate issue to be determined. Parties assert that the

subject fixtures prima facie fall under one of the following two subheadings: 9405.10.60 or

9405.10.80. (Final Pretrial Order, Schedule D-1, 11, Schedule D-2, 15.) Again, this Court

agrees.

If a subheading is at issue, GRI 6 instructs:

For legal purposes, the classification of goods in the subheadings of a heading

shall be determined according to the terms of those subheadings and any related

subheading notes, and mutatis mutandis, to the above rules, on the understanding

that only subheadings at the same level are comparable. For the purposes of this

rule, the relative section, chapter and subchapter notes also apply, unless the

context otherwise requires.

GRI 6 (1999). Parties agreed that the subject merchandise is composite goods of base metal and

non-base metal, such as glass or plastic. (See Final Pretrial Order, Schedule D-1, 11, Schedule

D-2, 15.) Despite the fact that the subject fixtures when imported do not include a lamp, which

is necessary for performance, this Court finds that the subject goods are imported in their

finished state and accordingly applies GRI 2(b).26 This Court finds that the subject goods are

composite and prima facie classifiable under two different subheadings. Consequently, GRI 2(b)

directs us to GRI 3, which provides:

26

GRI 2(b) states:

Any reference in a heading to a material or substance shall be taken to include a

reference to mixtures or combinations of that material or substance with other

materials or substances. Any reference to goods of a given material or substance

shall be taken to include a reference to goods consisting wholly or partly of such

material or substance. The classification of goods consisting of more than one

material or substance shall be according to the principles of rule three.

Consol. Court No. 00-00061 Page 20

3. When, by application of rule 2(b) or for any other reason, goods are, prima

facie, classifiable under two or more headings, classification shall be

effected as follows:

(a) The heading which provides the most specific description shall be

preferred to headings providing a more general description.

However, when two or more headings each refer to part only of the

materials or substances contained in mixed or composite goods or

to part only of the items in a set put up for retail sale, those

headings are to be regarding as equally specific in relation to those

goods, even if one of them gives a more complete or precise

description of the goods.

(b) Mixtures, composite goods consisting of different materials or

made up of different components, and goods put up in sets for

retail sale, which cannot be classified by reference to 3(a), shall be

classified as if they consisted of the material or component which

gives them their essential character, insofar as this criterion is

applicable.

(c) When goods cannot be classified by reference to 3(a) or 3(b), they

shall be classified under the heading which occurs last in numerical

order among those which equally merit consideration.

GRI 3(a)-(c) (1999). The CAFC outlined the framework for GRI 3:

The [GRI] of the [HTSUS] help determine which subheading should govern the

duty to be assessed on imports of these [subject goods]. According to the GRI

3(a), when ‘goods are, prima facie, classifiable under two or more headings,’ the

court must choose the heading providing the most specific description. This is the

so-called relative specificity test. GRI 3(a) provides an exception to the

applicability of this test, however, when ‘two or more headings each refer . . . to

only part of the items [].’ Pursuant to GRI 3(b), goods not classifiable under GRI

3(a) are classified by the ‘component which gives them their essential character.’

This is the so-called essential character test. GRI 3(c) provides a default rule for

goods not classifiable after resort to either GRI 3(a) or (b).”

Better Home II, 119 F.3d at 970-71. The Explanatory Notes (“EN”)27 instructs that GRI 3

methods of classification “operate in the order in which they are set out in the Rule.”

27

Although not binding, the EN are instructive and persuasive in classification analyses.

See Bauer Nike Hockey, 393 F.3d at 1250 (“[Courts] may look to the [EN] accompanying a tariff

subheading as a persuasive, but not binding, interpretative guide.”) (citation omitted).

Consol. Court No. 00-00061 Page 21

Harmonized Commodity Description and Coding System, Explanatory Notes to GRI 3 (I).

Because the two subheadings at issue each refer to only part of this composite good, this Court

finds that GRI 3(b), the essential character test, is the applicable provision to determine

classification, or in cases whereby essential character is indeterminable, then this will Court

resort to GRI 3(c), the default provision.

Although the GRI do not define essential character, the EN to GRI 3(b) coupled with case

law offer guidance. The EN explain that “[t]he factor which determines essential character will

vary as between different types of goods. It may, for example, be determined by the nature of the

material or component, its bulk, quantity, weight or value, or by the role of a constituent

material in relation to the use of the goods.” EN GRI 3(b), (VIII) (emphasis added). Although

the EN provide an instructive list of sample factors to consider in an essential character analysis,

it is not exhaustive.

Case law provides other possible considerations for an essential character inquiry. This

court’s predecessor, the United States Customs Court (“Customs Court”), stated that “[t]he best

evidence of the essential character of the article is the representative sample.” United China &

Glass Co. v. United States, 61 Cust. Ct. 386, 389, C.D. 3637, 293 F. Supp.734 (1968).28 In its

analysis, the United China court also considered the article’s “name . . . other recognized names

. . . invoice and catalogue descriptions . . . size, primary function, uses . . . and ordinary common

sense.” Id. (emphasis added). This Court concludes that this exemplary list is useful for the

28

Although this definition applied to the Tariff Schedule of the United States (“TSUS”) –

HTSUS’s predecessor – there are no reported cases defining essential character under the

HTSUS and thus later decisions have been guided by TSUS case law. See, e.g., Better Home

Plastics Corp. v. United States, 20 CIT 221, 224, 916 F. Supp. 1265 (1996) (“Better Home I”),

aff’d, 119 F.3d 969 (Fed. Cir. 1997); Toy Biz, 26 CIT at 827.

Consol. Court No. 00-00061 Page 22

forthcoming analyses. In a subsequent decision, the Customs Court explained that “[t]he

character of an article is that attribute which strongly marks or serves to distinguish what it is. Its

essential character is that which is indispensable to the structure, core or condition of the article,

i.e., what it is.” A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 383, C.D. 4218 (1971).

The court reiterated, however, that in an essential character determination, “the situation must be

reviewed as a whole.” Id. at 384 (citation omitted).

IV. SKU ANALYSES

SKU Groupings:

Before trial, parties placed some thirty-one SKUs into representative and represented

categories. The eleven representative SKUs cover twenty represented SKUs by party stipulation.

(See Joint Report.)29 Plaintiff presented these eleven representative SKUs, all of which had

physical samples as evidence, the first two days of trial. Thereafter, Plaintiff artificially grouped

the remaining SKUs in an attempt at judicial efficiency. (See Am. Status Report Re: Order of

Trial - Phase Two (“Phase II”).) While the order of the SKU analyses generally mirrors

Plaintiff’s grouping order, the Court occasionally diverges to facilitate the flow of the discussion.

This Court analyzes 104 SKUs.30

29

The agreed upon eleven representative and corresponding twenty represented SKUs

are: 104-305 covering 491-770; 113-892 covering 113-908, 113-925, 113-942, 252-552; 240-210

covering 240-216, 280-746; 258-008 covering 356-093; 385-091 covering none; 385-186

covering 384-894, 385-141, 385-236, 385-303; 385-432 covering 385-429; 385-477 covering

384-961, 491-784, 794-187; 469-258 covering 469-528; 482-393 covering 379-609, 457-581;

794-885 covering 441-371. (Joint Report 2-6.) Because the represented SKUs were stipulated to

in advance of trial, there was no evidence presented for them, except for SKU 280-746.

30

As noted under “Findings of Fact at Established at Trial” (see supra § I.B.), there are

124 SKUs at issue in this case, but this Court need only consider evidence for 104 SKUs, as

Consol. Court No. 00-00061 Page 23

Divisional SKUs:

During trial, Plaintiff explained Home Depot’s SKU numbering system. The first time

Home Depot orders a product its system assigns a SKU number in sequential order, regardless of

whether the product is a light fixture or another item. (Trial Tr. 575, Oct. 20.) Each fixture also

has a model number assigned by the vendor. (Id. at 569, 575.) A SKU number may have

different model numbers if different vendors produce the same product.

Evidence presented at trial revealed that a few identical fixtures were assigned different

SKU numbers. Mr. St. John explained that Home Depot did not have a centralized purchasing

system at the time of importation of the subject merchandise but rather had nine regional

divisions ordering products and assigning their own SKU numbers. (Trial Tr. 174-75, Oct. 17.)

Decentralized buying resulted in the possibility of identical products being assigned different

SKU numbers throughout the nine divisions. (Trial Tr. 1059, Oct. 26; Trial Tr. 1268-69, Oct.

27.) During trial, parties referred to the identical fixtures that were purchased by different

divisions as “divisional SKUs.” (Trial Tr. 1059, Oct. 26.) Plaintiff submitted a list of divisional

SKUs: SKUs 113-892 and 280-740; SKUs 385-477 and 385-544; SKUs 385-463 and 385-513;

SKU 113-861 and agreed upon represented SKU 280-746. (Trial Tr. 1266-68, Oct. 27.) This

Court accepts Plaintiff’s submission that these fixtures are identical with different SKU numbers

as explained by the decentralized ordering system. Although Defendant did not consent to

Plaintiff’s submission of divisional SKUs, it also did not offer any evidence to the contrary. (Id.

at 1266, 1269-70.) Because they represent identical fixtures, the Court will conduct one

classification analysis for the set of divisional SKUs.

these determinations will cover the twenty represented SKUs.

Consol. Court No. 00-00061 Page 24

A. INTERIOR FIXTURES

1. GLOBE31

This group of fixtures is known as “globe,” which refers to the glass component. The

name of an article is a factor that case law instructs is persuasive indicia of essential character

because “it is not uncommon that an article is called by the name denoted by its essential

character.” United China, 61 Cust. Ct. at 389-90; see supra § III.B. Mr. Mintz advanced that

this group of fixtures is substantially the same. (Trial Tr. 1231-32, Oct. 27.) Mr. St. John

testified that “without the globe, [the fixture] has no structure,” and thus, the most outstanding

characteristic of the fixture is the glass globe. (Trial Tr. 116, Oct. 17; Trial Tr. 950-56, Oct. 24.)

Mr. Mintz explained that this fixture uses a “standard metal fitter.” (Trial Tr. 382, Oct. 18.) In

the light fixture industry, a standard fitter is a “universal part which is used to support multiple

glass shapes and is not specific to this lighting fixture.” (Pl. Ex. 63 at 3.) This Court gives less

weight to the metal component when it includes a standard fitter because such a fitter is less

likely to “strongly mark[] or serve[] to distinguish what [the fixture] is.”32 A.N. Deringer, 66

Cust. Ct. at 383.

(a) SKU 385-186 (Pl. Ex. W-63)

SKU 385-186 is an agreed upon representative SKU covering SKUs 384-894, 385-141,

385-236, and 385-303. (Joint Report 4.) SKU 385-186 is a “[f]lush mounted ceiling fixture

known as ‘6[-inch] Globe.’ The fixture consists of a 6[-inch] diameter translucent glass ‘globe’

shade that mounts into a fitter ring of smaller diameter and antique brass finish.” (Pl. Ex. W-63

31

This fixture is sometimes called “gumball,” according to Mr. St. John. (Pl. Ex. W-63 at

3.)

32

This applies to all the standard fitters throughout this decision.

Consol. Court No. 00-00061 Page 25

at 1.) Plaintiff produced as evidence a physical sample (Pl. Ex. 217), photograph (Pl. Ex. 156)

and SKU information packet (Pl. Ex. 63). Mr. St. John noted, “If you look on the package, it

says it’s a 6-inch globe.” (Trial Tr. 115, Oct. 17.) Furthermore, “the best evidence of the

essential character of an article is the representative sample.” United China, 61 Cust. Ct. at 389.

Therefore, this Court closely examined the physical sample.33 This Court gives weight to the

fixture’s name and characteristics of the physical sample, if any, when determining essential

character.34

The glass has a visible surface area of 103.9 square inches, which constitutes ninety-two

percent of the whole, and weighs 6.0 ounces, which constitutes fifty-six percent of the total

weight. (Pl. Ex. W-63 at 1.) The metal has a visible surface area of 8.9 square inches, which

constitutes eight percent of the whole, and weighs 2.8 ounces, which constitutes twenty percent

of the total weight. (Id.) This Court finds that the glass has much greater visible surface area and

weighs notably more than the metal. This Court also considers the factor “material’s role in

relation to the use of the good” as listed in the EN to GRI 3(b). While both the glass and metal

“contribute[] to decorative appearance” and are “part of [the] structure,” the glass further

functions to direct and soften light through diffusion, to protect the lamp, and to shield the lamp

from view. (Id.)

The Court finds that the metal component: consists of a standard metal fitter of an antique

brass finish; comprises approximately one-tenth of the total visible surface area; weighs

approximately one-fifth of the entirety of the fixture; contributes minimally to decorative

33

This applies to all the physical samples presented throughout the trial.

34

This applies to all fixtures with names and physical samples throughout this decision.

Consol. Court No. 00-00061 Page 26

appearance and structure; houses the electrical components, and mounts the fixture to the ceiling.

This Court finds that the glass component: consists of a globe-shaped shade that gives the fixture

its name; comprises nine-tenths of the total visible surface area; weighs approximately three-

fifths of the entirety of the fixture; directs and softens light through diffusion; protects the lamp;

shields the lamp from view; contributes to the decorative appearance and structure; and defines

this fixture from design and marketability standpoints. Upon careful consideration of the totality

of these various factors, this Court finds that the essential character of SKU 385-186 is imparted

by its glass. Accordingly, this Court holds that SKU 385-186 and its agreed upon represented

SKUs 384-894, 385-141, 385-236, and 385-303 properly fall under HTSUS subheading

9405.10.80.

(b) SKU 385-205 (Pl. Ex. W-64)

SKU 385-205 is a “[f]lush mounted ceiling fixture consisting of a translucent glass

‘globe’ that mounts into a fitter ring of smaller diameter and brass finish.” (Pl. Ex. W-64 at 1.)

Plaintiff produced as evidence a SKU information packet consisting of a clear, color image of the

fixture. (Pl. Ex. 64.) Both Mr. Mintz and Mr. St. John testified that the only difference between

SKUs 385-186 and 385-205 is the finish on the metal, with the former in antique brass and the

latter in polished brass. (Trial Tr. 951, Oct. 24; Trial Tr. 1231, Oct. 27.) This Court agrees with

the witnesses.

Upon examination of all the evidence presented, this Court finds that SKUs 385-186 and

385-205 are substantially identical fixtures. This Court finds that a different finish on an

otherwise identical fixture does not affect the essential character analysis. Therefore, adopting

and applying the analysis of SKU 385-186 to SKU 385-205, this Court finds that the essential

Consol. Court No. 00-00061 Page 27

character of SKU 385-205 is imparted by the glass. Accordingly, this Court holds that SKU 385-

205 properly falls under HTSUS subheading 9405.10.80.

(c) SKU 385-219 (Pl. Ex. W-65)

SKU 385-219 is apparently a “[f]lush mounted ceiling fixture consisting of a translucent

glass ‘globe’ that mounts into a fitter ring of smaller diameter.” (Pl. Ex. W-65 at 1.) The metal

finish of this fixture is unknown. (Id.) Plaintiff produced as evidence a SKU information packet

with an unclear black and white image. (Pl. Ex. 65.) This Court finds that the black and white

image included in Plaintiff’s Exhibit 65 is of extremely low quality and thus not sufficient to

support Plaintiff’s arguments.

Plaintiff’s counsel admitted that the image “is a rather poor quality photograph,” (Trial

Tr. 952, Oct. 24), and Mr. Mintz testified that he could not discern the metal finish from the

image (Trial Tr. 1231, Oct. 27). Upon its own examination of the image, this Court finds it can

only guess, without certainty, what the image represents. As aforementioned, Customs enjoys a

statutory presumption of correctness in its original classification determinations. Although an

importer may overcome this presumption by a preponderance of the evidence, this Court finds

that Plaintiff has not produced sufficient evidence for SKU 385-219 to rebut the statutory

presumption of correctness enjoyed by Customs. Accordingly, this Court holds that Customs’

classification of SKU 385-219 under HTSUS subheading 9405.10.60 stands.

(d) SKU 385-155 (Pl. Ex. W-62)

SKU 385-155 is a “[f]lush mounted ceiling fixture consisting of a translucent glass

‘globe’ shade that mounts into a fitter ring of smaller diameter and brass finish.” (Pl. Ex. W-62

at 1.) This fixture “[i]ncludes a pull chain switch.” (Id.) Plaintiff produced as evidence a SKU

Consol. Court No. 00-00061 Page 28

information packet consisting of a clear, color image of the fixture. (Pl. Ex. 62.) Mr. Mintz and

Mr. St. John testified that there are two differences between SKUs 385-155 and 385-186:

(1) SKU 385-155 has a brass finish while SKU 385-186 has an antique brass finish (compare Pl.

Ex. W-62 at 1 with Pl. Ex. W-63 at 1); and (2) SKU 385-155 includes a pull chain (Trial Tr. 946,

Oct. 24). Mr. St. John explained that the pull chain on this fixture “creates a different application

in an area where there is no wall switch.” (Id. at 949.) The addition of this feature, however,

does not change Mr. St. John’s opinion that the most outstanding characteristic of this fixture, as

with the other globe fixtures, is the glass. (Id. at 949-50.)

Upon examination of all the evidence, this Court finds that SKUs 385-186 and 385-155

are substantially identical fixtures. This Court finds that a different finish and the addition of a

pull chain switch on an otherwise identical fixture do not significantly affect the essential

character analysis. Therefore, adopting and applying the analysis of SKU 385-186 to SKU 385-

155, this Court finds that the essential character of SKU 385-155 is imparted by the glass.

Accordingly, this Court holds that SKU 385-155 properly falls under HTSUS subheading

9405.10.80.

(e) SKU 384-930 (Pl. Ex. W-87)

SKU 384-930 is apparently a “[f]lush mounted ceiling fixture consisting of a translucent,

frosted glass ‘globe’ that mounts into a metal fitter ring of smaller diameter. [The] [m]etal has

[a] polished brass finish. [The] [g]lass globe has [an] escutcheon shape molded into bottom

portion.” (Pl. Ex. W-87 at 1.) Plaintiff produced as evidence a SKU information packet with a

low quality image of the fixture. (Pl. Ex. 87.)

Consol. Court No. 00-00061 Page 29

Mr. St. John observed that “there is a small escutcheon that’s been molded into the end of

the glass[;] I’m going off the image here,” (Trial Tr. 939, Oct. 24) but later admitted, “there’s no

way for me to confirm. The image is poor,” (id. at 942). Upon its own examination, this Court

agrees that the image is poor. As with SKU 385-219, this Court finds that this image is of

extremely low quality and thus inadequate to support Plaintiff’s arguments. With only a poor

image and witness testimony unable to confirm the differences of this fixture compared with

others in this globe group, this Court finds that Plaintiff has not produced sufficient evidence for

SKU 384-930 to rebut the statutory presumption of correctness enjoyed by Customs.

Accordingly, this Court holds that Customs’ classification of SKU 384-930 under HTSUS

subheading 9405.10.60 stands.

2. BUBBLE

The fixtures in this bubble group are “in a similar family35” with “slightly different”

shapes of glass and mounting plates. (Trial Tr. 1237, Oct. 27.) This Court finds instructive that

the name of the fixtures in this group is “bubble,” which refers to the glass. See supra § III.B.

(a) SKU 104-305 (Pl. Ex. W-1)

SKU 104-305 is an agreed upon representative SKU covering SKU 491-770. (Joint

Report 2.) SKU 104-305 is a “[f]lush mounted ceiling fixture known as a ‘14-Inch Bubble.’ The

35

The term “family” slightly differed between Plaintiff’s witnesses. Mr. St. John

referred to a family of fixtures as being “designed with the exact same components,” (Trial Tr.

1072, Oct. 26), “exactly the same shape, exactly the same profile, exactly the same glass, same

cap, same ball . . . It would be the exact same fixture in, like, a small, medium and large style”

(id. at 1108). Mr. Mintz instructed that family means configuration and style, plus “the variety of

sizes and number of lamps,” (Trial Tr. 1327, Oct. 27), and asserted the most outstanding

characteristic for an entire family is the same because “what applies to one really applies to all of

them” (id. at 1281). However, Mr. Mintz asserted that family in a design sense sometimes

includes different finishes on the metal. (Id. at 1324-26.)

Consol. Court No. 00-00061 Page 30

fixture is 14 inches in diameter, with a translucent white glass ‘bubble’ shade, surrounded by a

metal trim ring with a polished brass finish.” (Pl. Ex. W-1 at 1.) As previously stated, this Court

finds instructive that this fixture’s name is “14-inch bubble.” Plaintiff produced as evidence a

physical sample (Pl. Ex. 188), photograph (Pl. Ex. 127) and SKU information packet (Pl. Ex. 1).

According to Mr. St. John, “the [metal] pan is typically used to cover the electrical box

and disguise the mechanical materials, including the insulation in the back [], and mount the

sockets. And the glass is used as a diffuser to disperse the light evenly across whatever room it’s

placed in in addition to disguising the bulb and the very mechanical components, including the

insulation pad that’s inside, the two sockets, and [] the insulated wire that’s inside, as well as

covering up the actual mechanical mounting to the ceiling.” (Trial Tr. 67-68, Oct. 17.) Mr.

Mintz testified that a customer’s purchasing decision is driven by the shape of the glass because

“[i]t would be very odd for a customer to go in and say: I’d like to buy a brass trim, [sic] can we

find a piece of glass that fits it.” (Trial Tr. 341-42, Oct. 18.)

The glass has a visible surface area of 122.8 square inches, which constitutes sixty

percent of the whole, and weighs 20.5 ounces, which constitutes thirty-six percent of the total

weight. (Pl. Ex. W-1 at 1.) The metal has a visible surface area of 80.8 square inches, which

constitutes forty percent of the whole, and weighs 33.4 ounces, which constitutes fifty-eight

percent of the total weight. (Id.) This Court finds that the glass has greater visible surface area

than the metal, but the metal weighs more than the glass. This Court also considers the factor

“material’s role in relation to the use of the good” as listed in the EN to GRI 3(b). While both

the glass and metal “contribute[] to decorative appearance” and are “part of [the] structure,” the

glass further functions to direct and soften light through diffusion, to protect the lamp, and to

Consol. Court No. 00-00061 Page 31

shield the lamp from view, while the metal further functions to protect the ceiling and to attach

the glass. (Id.)

This Court finds that the metal component: consists of a pan of a polished brass finish;

comprises approximately two-fifths of the total visible surface area; weighs approximately three-

fifths of the entirety of the fixture; contributes to the decorative appearance and structure; houses

the electrical components; and mounts the fixture to the ceiling. This Court finds that the glass

component: consists of a bubble shape that gives the fixture its name; comprises approximately

three-fifths of the total visible surface area; weighs approximately one-third of the entirety of the

fixture; directs and softens light through diffusion; protects the lamp; shields the lamp from

view; contributes to decorative appearance and structure; and defines this fixture from design and

marketability standpoints. Upon careful consideration of the totality of these various factors, this

Court finds that the essential character of SKU 104-305 is imparted by its glass. Accordingly,

this Court holds that SKU 104-305 and its agreed upon represented SKU 491-770 properly fall

under HTSUS subheading 9405.10.80.

(b) SKU 104-306 (Pl. Ex. W-2)

SKU 104-306 is a “[f]lush mounted ceiling fixture consisting of a translucent glass

‘bubble’ surrounded by a metal trim ring with a polished brass finish.” (Pl. Ex. W-2 at 1.)

Plaintiff produced as evidence a SKU information packet with a grainy but adequate image. (Pl.

Ex. 2.) Mr. St. John submitted that “SKU 104-306 is so similar to SKU 104-305 that my

testimony is the same for [SKU]104-306 as far as [SKU]104-305, [however,] [SKU 104-306] has

a different profile.36” (Trial Tr. 967, Oct. 24.)

36

The term “profile” slightly differed between Plaintiff’s witnesses. Mr. St. John

sometimes referred to the profile of the pan and other times referred to the profile of the overall

Consol. Court No. 00-00061 Page 32

Upon examination of all the evidence, this Court finds that SKUs 104-305 and 104-306

are substantially identical fixtures. This Court finds the slight difference in profile does not

affect the essential character analysis. Therefore, adopting and applying the analysis of SKU

104-305 to SKU 104-306, this Court finds that the essential character of SKU 104-306 is

imparted by the glass. Accordingly, this Court holds that SKU 104-306 properly falls under

HTSUS subheading 9405.10.80.

(c) SKU 491-798 (Pl. Ex. W-101)

SKU 491-798 is a “[f]lush mounted ceiling fixture consisting of a translucent white

frosted glass ‘bubble’ shade, surrounded by a metal trim ring with a bronze finish.” (Pl. Ex. W-

101 at 1.) Plaintiff produced as evidence a SKU information packet consisting of a clear, color

image of the fixture. (Pl. Ex. 101.) This fixture has a profile similar to SKU 104-306. (Pl. Ex.

W-101 at 1.) Mr. St. John declared that SKUs 104-306 and 491-798 is the same, except for the

finish. (Trial Tr. 969, Oct. 24.) Mr. Mintz corroborated by stating that SKUs 491-798, 104-306

(supra) and 491-803 (infra) “are identical [] except for the finish on the mounting plate.” (Trial

Tr. 1237, Oct. 27.) This Court agrees.

Upon examination of all the evidence, this Court finds that SKUs 491-798 and 104-306

are substantially identical fixtures. This Court finds that a different finish on an otherwise

identical fixture does not affect the essential character analysis. Therefore, adopting and

applying the analysis of SKU 104-306 to SKU 491-798, this Court finds that the essential

character of SKU 491-798 is imparted by the glass. Accordingly, this Court holds that SKU 491-

798 properly falls under HTSUS subheading 9405.10.80.

fixture. (See, e.g., Trial Tr. 962, Oct. 24.) Mr. Mintz, however, discussed profile in terms of the

overall fixture as “the backplate plus the glass or plastic.” (Trial Tr. 1397, Oct. 27.)

Consol. Court No. 00-00061 Page 33

(d) SKU 491-803 (Pl. Ex. W-102)

SKU 491-803 is a “[f]lush mounted ceiling fixture consisting of a translucent white

frosted glass ‘bubble’ shade, surrounded by a metal trim ring with a white finish.” (Pl. Ex. W-

102 at 1.) Plaintiff produced as evidence a SKU information packet consisting of an adequate

image of the fixture. (Pl. Ex. 102.) This fixture has a profile similar to SKUs 104-306 and 491-

798. (Pl. Ex. W-102 at 1.) Mr. St. John testified that “[SKU 491-803] is just like [SKU 491-

798] and just like [SKU 104-306], except it’s in a white finish.” (Trial Tr. 972, Oct. 24.)

Upon examination of all the evidence, this Court finds that SKUs 104-306, 491-798 and

491-803 are substantially identical fixtures. This Court finds that a different finish on the base

metal of an otherwise identical fixture does not affect the essential character analysis. Therefore,

adopting and applying the analysis of SKUs 104-306 to SKU 491-803, this Court finds that the

essential character of SKU 491-803 is imparted by the glass. Accordingly, this Court holds that

SKU 491-803 properly falls under HTSUS subheading 9405.10.80.

3. MUSHROOM

This Court finds instructive that the name of these fixtures is “mushroom,” which refers

to the glass. See supra § III.B. This mushroom group uses a standard fitter. (Trial Tr. 990, Oct.

26; Trial Tr. 1243, Oct. 27; Pl. Ex. W-75 at 3.) Therefore, according to Plaintiff’s witnesses, the

most outstanding characteristic of this mushroom group is the glass shade. (Trial Tr. 985-96,

Oct. 26; Trial Tr. 1246, Oct. 27.)

(a&b) SKUs 385-477 (Pl. Ex. W-75) & 385-544 (Pl. Ex. W-77)

SKUs 385-477 and 385-544 are divisional SKUs. As discussed in the divisional SKU

section above, this Court accepts Plaintiff’s submission that SKUs 385-477 and 385-544 are

Consol. Court No. 00-00061 Page 34

identical fixtures that received different SKU numbers when regional divisions placed orders.

See supra § IV. Finding that they are identical fixtures, this Court applies the same analysis to

SKUs 385-477 and 385-544. Furthermore, SKU 385-477 is an agreed upon representative SKU

covering SKUs 384-961, 491-784, and 794-187. (Joint Report 5.)

These fixtures are “[f]lush mounted ceiling fixture[s] known as an [sic] ‘7-[i]nch

Mushroom.’ The[se] fixture[s] [are] 7 inches in diameter, with a translucent white glass bowl

that mounts into a metal fitter. The translucent glass bowl extends beyond the diameter of the

fitter and then narrows where it mounts into the fitter, creating a shape similar to that of a

mushroom.” (Pl. Ex. W-75 at 1.) These fixtures have a white metal finish. (Id.) Plaintiff

produced as evidence a physical sample (Pl. Ex. 222), photograph (Pl. Ex. 161) and SKU

information packets (Pl. Ex. 75; Pl. Ex. 77).

The glass has a visible surface area of 53.3 square inches, which constitutes sixty-five

percent of the whole, and weighs 7.5 ounces, which constitutes fifty percent of the total weight.

(Pl. Ex. W-75 at 1.) The metal has a visible surface area of 28.6 square inches, which constitutes

thirty-five percent of the whole, and weighs 5.7ounces, which constitutes thirty-eight percent of

the total weight. (Id.) This Court finds that the glass has greater visible surface area and weighs

more than the metal. While both the glass and metal “contribute[] to decorative appearance” and

are “part of [the] structure,” the glass further functions to direct and soften light through

diffusion, to protect the lamp, and to shield the lamp from view. (Pl. Ex. W-75 at 1; Pl. Ex. W-

77 at 1.)

This Court finds that the metal component: consists of a standard metal fitter of a painted

white finish; comprises approximately one-third of the total visible surface area; weighs

Consol. Court No. 00-00061 Page 35

approximately two-fifths of the entirety of the fixture; contributes to the decorative appearance

and structure; houses the electrical components; and mounts the fixture to the ceiling. This Court

finds that the glass component: consists of a stylized decorative shade that gives the fixture its

name; comprises approximately two-thirds of the total visible surface area; weighs one-half of

the entirety of the fixture; directs and softens light through diffusion; protects the lamp; shields

the lamp from view; contributes to decorative appearance and structure; and defines this fixture

from design and marketability standpoints. Upon careful consideration of the totality of these

various factors, this Court finds that the essential character of SKUs 385-477 and 385-544 is

imparted by its glass. Accordingly, this Court holds that SKUs 385-544 and 385-477 and its

agreed upon represented SKUs 384-961, 491-784, and 794-187 properly fall under HTSUS

subheading 9405.10.80.

(c&d) SKUs 385-463 (Pl. Ex. W-74) & 385-513 (Pl. Ex. W-76)

SKUs 385-463 and 385-513 are divisional SKUs. As discussed above, this Court accepts

Plaintiff’s submission that SKUs 385-463 and 385-513 are identical fixtures that received

different SKU numbers when regional divisions placed orders. See supra § IV. Finding that they

are identical fixtures, this Court applies the same analysis for SKUs 385-463 and 385-513.

Plaintiff produced as evidence SKU information packets consisting of clear, color images of the

fixtures. (Pl. Ex. 74; Pl. Ex. 76.) These identical fixtures have a different finish than those

discussed immediately above but are otherwise the same. (Trial Tr. 994, Oct. 26.)

Mr. St. John testified that there are no differences between SKUs 385-463, 485-513, and

385-477. (Id.) This Court notes, however, that the metal finish on SKUs 385-463 and 385-513

is different from that of SKU 385-477. As discussed above, this Court finds that a different

Consol. Court No. 00-00061 Page 36

finish on an otherwise identical fixture does not affect the essential character analysis. Therefore,

adopting and applying the analysis of SKU 385-477 to SKUs 385-463 and 385-513, this Court

finds that the essential character of SKUs 385-463 and 385-513 is imparted by the glass.

Accordingly, this Court holds that SKUs 385-463 and 385-513 properly fall under HTSUS

subheading 9405.10.80.

(e) SKU 385-334 (Pl. Ex. W-68)

SKU 385-334 is a “7-inch mushroom[,] [f]lush mounted ceiling fixture consisting of a

faceted glass shade that mounts into a metal fitter with a chrome finish. The glass shade extends

beyond the diameter of the fitter and then narrows where it mounts into the fitter, creating a

shape similar to that of a mushroom.” (Pl. Ex. W-68 at 1.) Plaintiff produced as evidence a SKU

information packet consisting of a clear, color image of the fixture. (Pl. Ex. 68.) Mr. Mintz

advanced that SKU 385-334 has the same shape as SKU 385-477, but SKU 385-334 “has a

pressed or cast glass diffuser” and a fitter “in a polished chrome finish.” (Trial Tr. 1242, Oct. 27.)

Upon examination of all the evidence, this Court finds that SKUs 385-477 and 385-334

are substantially identical fixtures. This Court finds the color of finish and type of glass shade do

not significantly affect the essential character analysis. Furthermore, this Court finds that the

faceting in the glass shade favors the importance of the glass component. Therefore, adopting

and applying the analysis of SKU 385-477 to SKU 385-334, this Court finds that the essential

character of SKU 385-334 is imparted by the glass. Accordingly, this Court holds that SKU 385-

334 properly falls under HTSUS subheading 9405.10.80.

Consol. Court No. 00-00061 Page 37

(f) SKU 385-365 (Pl. Ex. W-69)

SKU 385-365 is a “7-inch mushroom[,] [ f]lush mounted ceiling fixture consisting of a

faceted glass shade that mounts into a metal fitter with a brass finish. The glass [shade] extends

beyond the diameter of the fitter and then narrows where it mounts into the fitter, creating a

shape similar to that of a mushroom.” (Pl. Ex. W-69 at 1.) Plaintiff produced as evidence a SKU

information packet consisting of a clear, color image of the fixture. (Pl. Ex. 69.) According to

Mr. Mintz, SKU 385-365 is “same fixture as [SKU 385-334] but except [sic] that [SKU 385-

365] is polished brass. It’s got the same faux cut glass diffuser.” (Trial Tr. 1243, Oct. 27.) This

Court agrees.

Upon examination of all the evidence, this Court finds that SKUs 385-334 and 385-365

are substantially identical fixtures. This Court finds that a different finish on an otherwise

identical fixture does not affect the essential character analysis. Therefore, adopting and

applying the analysis of SKU 385-334 to SKU 385-365, this Court finds that the essential

character of SKU 385-365 is imparted by the glass. Accordingly, this Court holds that SKU 385-

365 properly falls under HTSUS subheading 9405.10.80.

(g) SKU 385-446 (Pl. Ex. W-73)

SKU 385-446 is a “7-inch mushroom[,] [f]lush mounted ceiling fixture . . . The fixture is

eight inches in diameter, with a translucent white frosted glass bowl shade that mounts into a

metal fitter with a brass finish.” (Pl. Ex. W-73 at 1.) Although the fixture is eight inches in

diameter, it “uses the same seven inch fitter as all the other mushroom[] [fixtures].” (Id.)

Plaintiff produced as evidence a SKU information packet with an adequate image of the fixture.

(Pl. Ex. 73.) This Court finds that the written content on the image corroborates witness

Consol. Court No. 00-00061 Page 38

testimony regarding the different finishes in the mushroom group of fixtures. (Pl. Ex. 73.) Mr.

St. John offered that SKUs 385-477 and 385-446 are the same except for the finish on the metal.

(Trial Tr. 990, Oct. 26.)

Upon examination of all the evidence, this Court finds that SKUs 385-477 and 385-446

are substantially identical fixtures. This Court finds that a different finish on an otherwise

identical fixture does not affect the essential character analysis. Therefore, adopting and

applying the analysis of SKU 385-477 to SKU 385-446, this Court finds that the essential

character of SKU 385-446 is imparted by the glass. Accordingly, this Court holds that SKU 385-

446 properly falls under HTSUS subheading 9405.10.80.

4. DOME

Mr. St. John testified that the fixtures in this dome group differ in their metal finish.

(Trial Tr. 1099, Oct. 26.) Mr. St. John asserted, however, that the driving force behind a

customer’s purchasing decision with respect to the domed fixtures is “typically the style of glass

. . . [b]ecause of the diffusing and decorative elements of the product.” (Id. at 1101.) Mr. Mintz

explained that the glass dome “has some sort of decorative swirl pattern in it.” (Trial Tr. 1398,

Oct. 27.) He concluded that “the glass really provides the profile and the performance and the

function of the fixture.” (Id. at 1398-99.) Mr. St. John offered that SKUs 385-625, 385-673, 385-

690, 385-706, 385-768 and 385-771 are in the same family. (Trial Tr. 1105, 1107, 1109, Oct.

26.)

(a) SKU 284-604 (Pl. Ex. W-38)

SKU 284-604 is “[f]lush mounted ceiling fixture consisting of a faux alabaster glass

shade, mounted into a metal trim ring of an off-white plaster finish.” (Pl. Ex. W-38 at 1.)

Consol. Court No. 00-00061 Page 39

Plaintiff produced as evidence a physical sample (Pl. Ex. 205), photograph (Pl. Ex. 144) and

SKU information packet (Pl. Ex. 38). This fixture is held up by a twist lock connection. (Trial

Tr. 1400, Oct. 27.) The glass dome provides the fixture’s profile (id. at 1395) and shape (id. at

1398), according to Mr. Mintz.

The glass has a visible surface area of 122.1 square inches, which constitutes sixty-seven

percent of the whole, and weighs 51.8 ounces, which constitutes sixty-six percent of the total

weight. (Pl. Ex. W-38 at 1.) The metal has a visible surface area of 61.0 square inches, which

constitutes thirty-three percent of the whole, and weighs 22.8 ounces, which constitutes twenty-

nine percent of the total weight. (Id.) This Court finds that the glass has much greater visible

surface area and weighs notably more than the metal. This Court also considers the factor

“material’s role in relation to the use of the good” as listed in the EN to GRI 3(b). While both

the glass and metal “contribute[] to decorative appearance” and are “part of [the] structure,” the

glass further functions to direct and soften light through diffusion, to protect the lamp, and to

shield the lamp from view. (Id.)

This Court finds that the metal component: consists of a trim ring in an off-white plaster

finish; comprises approximately one-third of the total visible surface area; weighs approximately

one-third of the entirety of the fixture; contributes to the decorative appearance and structure;

houses the electrical components; and mounts the fixture to the ceiling. This Court finds that the

glass component: consists of a stylized decorative dome shade; comprises approximately two-

thirds of the total visible surface area; weighs approximately two-thirds of the entirety of the

fixture; reflects and refracts light; protects the lamp; contributes to the decorative appearance and

structure; and defines this fixture from design and marketability standpoints. Upon careful

Consol. Court No. 00-00061 Page 40

consideration of the totality of these various factors, this Court finds that the essential character

of SKU 284-604 is imparted by its glass. Accordingly, this Court holds that SKU 284-604

properly falls under HTSUS subheading 9405.10.80.

(b) SKU 385-012 (Pl. Ex. W-54)

SKU 385-012 is apparently a “[f]lush mounted ceiling fixture that consists of a melon

cut37 glass bowl shade that is mounted into a metal trim ring at the base” of polished brass metal.

(Pl. Ex. W-54 at 1.) Plaintiff produced as evidence a SKU information packet with a low quality

image of the fixture. (Pl. Ex. 54.) This Court finds the image included in Plaintiff’s Exhibit 54

is of extremely low quality and thus inadequate to support Plaintiff’s arguments. Furthermore,

this Court finds that the written content of Plaintiff’s Exhibit 54 does not clearly relate this

fixture.

Mr. Mintz admitted that Plaintiff’s Exhibit 54 is “not a very good picture,” but “by

experience and seeing similar fixtures,” he submitted this fixture is similar to SKU 385-589.

(Trial Tr. 1400, Oct. 27.) This Court is not persuaded by such testimony. Although “[i]t is

hornbook law that direct evidence of a fact is not necessary,” the trial court “has the

responsibility to weigh the evidence and credibility of the witnesses in deciding the inferential

reach of [] circumstantial evidence.” Fuji Photo Film Co., Ltd. v. Jazz Photo Corp., 394 F.3d

1368, 1374 (Fed. Cir. 2005) (citation omitted). This Court finds insufficient that the witness has

seen only similar fixtures with neither personal knowledge of this fixture nor corroborating

evidence.

37

Mr. Mintz explained that melon-cut glass is “melon shape[d],” typically “translucent or

frosted,” with wide ribs similar to those on a melon or pumpkin. (Trial Tr. 1402-03, Oct. 27.)

Consol. Court No. 00-00061 Page 41

As previously discussed, Customs enjoys a statutory presumption of correctness in its

original classification determinations. Although an importer may overcome this presumption by

a preponderance of the evidence, this Court finds that Plaintiff has not produced sufficient

evidence for SKU 385-012 to rebut this statutory presumption. Accordingly, this Court holds

that Customs’ classification of SKU 385-012 under HTSUS subheading 9405.10.60 stands.

(c) SKU 385-589 (Pl. Ex. W-78)

SKU 384-589 is a “[f]lush mounted ceiling fixture consisting of a translucent glass dome

mounted into a metal trim ring and with a metal finial38 both of a white finish.” (Pl. Ex. W-78 at

1.) Plaintiff produced as evidence a SKU information packet consisting of a clear, color image

of the fixture. (Pl. Ex. 78.) Mr. Mintz asserted that this fixture is similar to SKU 284-604 except

that this fixture is held together with a finial rather than a twist lock connection. (Trial Tr. 1400,

Oct. 27.) This Court notes that the finishes and styles are also slightly different. (Trial Tr. 1106,

Oct. 26.)

Upon examination of all the evidence, this Court finds that SKUs 284-604 and 385-589

are substantially identical fixtures. This Court finds the noted differences are minimal and do not

significantly affect the essential character analysis. Adopting and applying the analysis of SKU

284-604 to SKU 385-589, this Court finds that the essential character of SKU 385-589 is

imparted by the glass. Accordingly, this Court holds that SKU 385-589 properly falls under

HTSUS subheading 9405.10.80.

38

A “finial” is a small knob at the bottom of the fixture that holds the components in

place. (Trial Tr. 1367-68, Oct. 27.)

Consol. Court No. 00-00061 Page 42

(d) SKU 385-608 (Pl. Ex. W-79)

SKU 385-608 is a “[f]lush mounted ceiling fixture consisting of a frosted glass dome

mounted into a metal trim ring and with a metal finial, both of a brass finish.” (Pl. Ex. W-79 at

1.) Plaintiff produced as evidence a SKU information packet consisting of a clear, color image

of the fixture. (Pl. Ex. 79.) Mr. Mintz testified that SKU 385-608 “is very similar to” SKU 385-

589 except for a slightly different backplate and finish. (Trial Tr. 1401, Oct. 27.)

Upon examination of all the evidence, this Court finds that SKUs 385-589 and 385-608

are substantially identical fixtures. This Court finds that a different finish and a slight variance in

the backplate do not significantly affect the essential character analysis as discussed above.

Adopting and applying the analysis of SKU 385-589 to SKU 385-608, this Court finds that the

essential character of SKU 385-608 is imparted by the glass. Accordingly, this Court holds that

SKU 385-608 properly falls under HTSUS subheading 9405.10.80.

(e) SKU 385-625 (Pl. Ex. W-80)

SKU 385-625 is a “[f]lush mounted ceiling fixture consisting of a clear glass dome with

swirl fluting, mounted into a metal trim ring and with a metal finial, both of a brass finish.” (Pl.

Ex. W-80 at 1.) Plaintiff produced as evidence a SKU information packet consisting of a clear,

color image of the fixture. (Pl. Ex. 80.) Mr. Mintz testified that this fixture “appears to be very

similar” to the SKU 385-589 except for the polished brass finish on the metal pan. (Trial Tr.

1401, Oct. 27.) Upon its own comparison of these two fixtures, however, this Court notes a

difference also in the glass – clear versus frosted – and perhaps a slight difference in the profile.

(Compare Pl. Ex. 78 with Pl. Ex. 80.)

Consol. Court No. 00-00061 Page 43

Upon examination of all the evidence, this Court finds that SKUs 385-589 and 385-625

are substantially identical fixtures. Although there are a few differences, this Court finds that

these differences do not significantly affect the essential character analysis. Therefore, adopting

and applying the analysis of SKU 385-589 to SKU 385-625, this Court finds that the essential

character of SKU 385-625 is imparted by the glass. Accordingly, this Court holds that SKU 385-

625 properly falls under HTSUS subheading 9405.10.80.

(f) SKU 385-673 (Pl. Ex. W-81)

SKU 385-673 is a “[f]lush mounted ceiling fixture consisting of a frost[ed] sw[ir]l glass

dome mounted into a metal trim ring and with a metal finial, both of a white finish.” (Pl. Ex. W-

81 at 1.) Plaintiff produced as evidence a SKU information packet consisting of a clear, color

image of the fixture. (Pl. Ex. 81.) Mr. St. John testified that SKU 385-673 is identical to SKU

385-625, except for the white finish and the frosted swirl pattern on the glass dome. (Trial Tr.

1104, Oct. 26.) He asserted that SKUs 385-673, 385-625 (supra) and 385-690 (infra) are in the

same family and have the same style. (Trial Tr. 1105, Oct. 26.)

Upon examination of all the evidence, this Court finds SKUs 385-625 and 385-673 are

substantially identical fixtures. This Court finds that a different finish and frosted glass on an

otherwise identical fixture do not affect the essential character analysis. Therefore, adopting and

applying the analysis of SKU 385-625 to SKU 385-673, this Court finds that the essential

character of SKU 385-673 is imparted by the glass. Accordingly, this Court holds that SKU 385-

673 properly falls under HTSUS subheading 9405.10.80.

Consol. Court No. 00-00061 Page 44

(g) SKU 385-690 (Pl. Ex. W-82)

SKU 385-690 is a “[f]lush mounted ceiling fixture consisting of a frosted swirl glass

dome mounted into a metal trim ring and with a metal finial, both of a brass finish.” (Pl. Ex. W-

82 at 1.) Plaintiff produced as evidence a SKU information packet with a clear, color image of

the fixture. (Pl. Ex. 82.) Mr. Mintz claimed that this fixture is “very similar” to the other dome

fixtures. (Trial Tr. 1401, Oct. 27.)

Upon examination of all the evidence, this Court finds that SKUs 385-608 and 385-690

are substantially identical fixtures. Therefore, adopting and applying the analysis of SKU 385-

608 to SKU 385-690, this Court finds that the essential character of SKU 385-690 is imparted by

the glass. Accordingly, this Court holds that SKU 385-690 properly falls under HTSUS

subheading 9405.10.80.

(h) SKU 385-706 (Pl. Ex. W-83)

SKU 385-706 is a “[f]lush mounted ceiling fixture of 13.25 inches in diameter. The

fixture consists of a glass shade with close-set ridges in a ‘swirl’ pattern, surrounded by a metal

trim ring with a polished brass finish, and capped by a knob, also of brass finish.” (Pl. Ex. W-83

at 1.) Plaintiff produced as evidence a physical sample (Pl. Ex. 223), photograph (Pl. Ex. 162)

and SKU information packet (Pl. Ex. 83).

The glass has a visible surface area of 123.8 square inches, which constitutes sixty-three

percent of the whole, and weighs 45.5 ounces, which constitutes seventy-two percent of the total

weight. (Pl. Ex. W-63 at 1.) The metal has a visible surface area of 71.0 square inches, which

constitutes thirty-seven percent of the whole, and weighs 14.6 ounces, which constitutes twenty-

three percent of the total weight. (Id.) This Court finds that the glass has much greater visible

Consol. Court No. 00-00061 Page 45

surface area and weighs notably more than the metal. This Court also considers the factor

“material’s role in relation to the use of the good” as listed in the EN to GRI 3(b). While both

the glass and metal “contribute[] to decorative appearance” and are “part of [the] structure,” the

glass further functions to direct and distribute light through refraction and diffusion, to protect

the lamp, and to shield the lamp from view. (Id.)

This Court finds that the metal component: consists of a trim ring, cap and knob of a

polished brass finish; comprises approximately one-third of the total visible surface area; weighs

approximately one-fourth of the entirety of the fixture; contributes to decorative appearance and

structure; mounts the fixture to the ceiling; and houses the electrical components. This Court

finds that the glass component: consists of a stylized decorative dome shade; comprises

approximately three-fifths of the total visible surface area; weighs approximately three-fourths of

the entirety of the fixture; directs and distributes light through refraction and diffusion; protects

the lamp; shields the lamp from view; contributes to the decorative appearance and structure; and

defines this fixture from design and marketability standpoints. Upon careful consideration of the

totality of these various factors, this Court finds that the essential character of SKU 385-706 is

imparted by its glass. Accordingly, this Court holds that SKU 385-706 properly falls under

HTSUS subheading 9405.10.80.

(i) SKU 385-740 (W-84)

SKU 385-740 is a 11.25 inch diameter flush mounted ceiling fixture consisting “of a

translucent white frosted glass dome shade with close-set fluting in a ‘swirl’ pattern, surrounded

by metal trim ring” capped by a finial, both of a white finish. (Pl. Ex. W-84 at 1.) Plaintiff

Consol. Court No. 00-00061 Page 46

produced as evidence a physical sample (Pl. Ex. 224), photograph (Pl. Ex. 163) and SKU

information packet (Pl. Ex. 84).

The glass has a visible surface area of 73.5 square inches, which constitutes sixty-six

percent of the whole, and weighs 29.2 ounces, which constitutes sixty-eight percent of the total

weight. (Pl. Ex. W-84 at 1.) The metal has a visible surface area of 37.0 square inches, which

constitutes thirty-four percent of the whole, and weighs 11.9 ounces, which constitutes twenty-

eight percent of the total weight. (Id.) This Court finds that the glass has much greater visible

surface area and weighs notably more than the metal. This Court also considers the factor

“material’s role in relation to the use of the good” as listed in the EN to GRI 3(b). While both

the glass and metal “contribute[] to decorative appearance” and are “part of [the] structure,” the

glass further functions to direct and soften light through diffusion, to protect the lamp, and to

shield the lamp from view. (Id.)

This Court finds that the metal component: consists of a trim ring, cap and knob of a

white finish; comprises approximately one-third of the total visible surface area; weighs

approximately one-fourth of the entirety of the fixture; contributes to the decorative appearance

and structure; mounts the fixture to the ceiling; and houses the electrical components. This Court

finds that the glass component: consists of a stylized decorative dome shade; comprises two-

thirds of the visible surface area; weighs approximately two-thirds of the entirety of the fixture;

directs and softens light through diffusion; protects the lamp; shields the lamp from view;

contributes to the decorative appearance and structure; and defines this fixture from design and

marketability standpoints. Upon careful consideration of the totality of these various factors, this

Consol. Court No. 00-00061 Page 47

Court finds that the essential character of SKU 385-740 is imparted by its glass. Accordingly,

this Court holds that SKU 385-740 properly falls under HTSUS subheading 9405.10.80.

(j) SKU 385-768 (Pl. Ex. W-85)

SKU 385-768 is a “[f]lush mounted ceiling fixture consisting of a frosted swirl glass

dome mounted into a metal trim ring and with a metal finial, both of a brass finish.” (Pl. Ex. W-

85 at 1.) Plaintiff produced as evidence a SKU information packet consisting of a clear, color

image of the fixture. (Pl. Ex. 85.) SKU 385-768 is similar to the other fixtures in this dome

group. (Trial Tr. 1107, Oct. 26; Trial Tr. 1402, Oct. 27.) According to Mr. Mintz, this fixture’s

backplate is slightly different. (Trial Tr. 1402, Oct. 27.)

Upon examination of all the evidence, this Court finds SKUs 385-768 and 385-740 are

substantially identical fixtures. This Court finds that a different finish and a slight variance in the

backplate on otherwise identical fixtures do not significantly affect the essential character

analysis as previously discussed. Therefore, adopting and applying the analysis of SKU 385-740

to SKU 385-768, this Court finds that the essential character of SKU 385-768 is imparted by the

glass. Accordingly, this Court holds that SKU 385-768 properly falls under HTSUS subheading

9405.10.80.

(k) SKU 385-771 (Pl. Ex. W-86)

SKU 385-771 is a “[f]lush mounted ceiling fixture consisting of a clear glass dome, with

swirled, vertical fluting, mounted into a metal trim ring and with a metal finial, both a brass

finish.” (Pl. Ex. W-86 at 1.) Plaintiff produced as evidence a SKU information packet

consisting of a clear, color image of the fixture. (Pl. Ex. 86.) SKU 385-771 is similar to the

other fixtures in this dome group. (Trial Tr. 1107, Oct. 26; Trial Tr. 1403, Oct. 27.)

Consol. Court No. 00-00061 Page 48

Upon examination of all the evidence, this Court finds SKUs 385-625 and 385-771 are

substantially identical fixtures. The only difference seems to be that the brass is a little darker in

the former but it is unclear whether this an effect created by varied lighting when the photographs

were taken. This Court finds this possible difference is inconsequential. Therefore, adopting and

applying the analysis of SKU 385-625 to SKU 385-771, this Court finds that the essential

character of SKU 385-771 is imparted by the glass. Accordingly, this Court holds that SKU 385-

771 properly falls under HTSUS subheading 9405.10.80.

(l) SKU 494-935 (Pl. Ex. W-104)

SKU 494-935 is a “[f]lush mounted ceiling fixture consisting of a frosted glass dome,

with fluting, mounted into a metal trim ring and with a metal finial, both of a gold finish.” (Pl.

Ex. W-104 at 1.) Plaintiff produced as evidence a SKU information packet consisting of a clear,

color image of the fixture. (Pl. Ex. 104.) SKU 494-935 is the same idea but it “has a completely

different type of glass” than the others in the dome group. (Trial Tr. 1107, Oct. 26.) Mr. St. John

explained this fixture has “a leaf pattern molded into the centrifugal glass” and described the

finish of this fixture as antique brass. (Id.)

Upon examination of all the evidence, this Court finds SKUs 385-740 and 494-935 are

substantially identical fixtures. This Court finds that the differences in metal finish and glass

texture on otherwise identical fixtures do not significantly affect the essential character analysis

as previously discussed. Therefore, this Court adopts and applies the analysis of SKU 385-740 to

SKU 494-935. Consequently, this Court finds that the essential character of SKU 494-935 is

imparted by the glass. Accordingly, this Court holds that SKU 494-935 properly falls under

HTSUS subheading 9405.10.80.

Consol. Court No. 00-00061 Page 49

(m) SKU 494-949 (Pl. Ex. W-105)

SKU 494-949 is a “[f]lush mounted ceiling fixture consisting of a frosted glass dome,

with fluting, mounted into a metal trim ring and with a metal finial, both of an [a]ntique [b]rass

finish.” (Pl. Ex. W-105 at 1.) Plaintiff produced as evidence a SKU information packet

consisting of a clear, color image of the fixture. (Pl. Ex. 105.) According to Mr. Mintz, SKU

494-949 is similar to SKU 494-935 and appears to have the “same fitter or backplate as [SKU

494-935].” (Trial Tr. 1404, Oct. 27.) He testified that “[i]f there are any differences [between

SKUs 494-935 and 494-949], they are not significant.” (Id.) This Court agrees.

Upon examination of all the evidence, this Court finds SKUs 494-935 and 494-949 are

substantially identical fixtures. Therefore, adopting and applying the analysis of SKU 494-935 to

SKU 494-949, this Court finds that the essential character of SKU 494-949 is imparted by the

glass. Accordingly, this Court holds that SKU 494-949 properly falls under HTSUS subheading

9405.10.80.

5. DRUM

This drum group “has a historical Art Deco reference, which is fully established by the

design of the glass shade. . . . [T]he glass shade is intricately detailed and very distinctive. The

use of the white painted bands and different geometric patterns of faceted glass establish the Art

Deco design.” (Pl. Ex. W-72 at 3; see also Trial Tr. 130, 132, Oct. 17.) Plaintiff’s witnesses

testified that the standard fitters in this drum fixture group are the same as those in the mushroom

fixture group. (Trial Tr. 132-33, Oct. 17; 395, Oct. 18.) This Court finds instructive that the

name of the fixtures in this group is “drum,” which refers to the glass. See supra § III.B.

Consol. Court No. 00-00061 Page 50

(a) SKU 385-432 (Pl. Ex. W-72)

SKU 385-432 is an agreed upon representative SKU covering SKU 385-429. (Joint

Report 4.) This fixture is a “[f]lush mounted ceiling fixture known as ‘7-inch Drum.’ The

fixture is 7 inches diameter, with a glass ‘drum’ shade that mounts into a [chrome-finished]

metal fitter of about the same diameter. The circumference of the drum consists of four

alternating bands of glass: two painted white glass bands, a band of glass diamond shapes and

interlocking diagonal channels and a band of vertical flutes. The bottom of the drum (that which

would be seen by an observer directly below) consists of 5 concentric rings of vertical flutes set

at an angle into the center.” (Pl. Ex. W-72 at 1.) This Court finds instructive that this fixture’s

name is “7-inch drum.” Plaintiff produced as evidence a physical sample (Pl. Ex. 221),

photograph (Pl. Ex. 160) and SKU information packet (Pl. Ex. 72).

The glass has a visible surface area of 52.7 square inches, which constitutes eighty-four

percent of the whole, and weighs 15.4 ounces, which constitutes sixty-eight percent of the total

weight. (Pl. Ex. W-72 at 1.) The metal has a visible surface area of 10.1 square inches, which

constitutes sixteen percent of the whole, and weighs 5.3 ounces, which constitutes twenty-four

percent of the total weight. (Id.) This Court finds that the glass has much greater visible surface

area and weighs notably more than the metal. This Court also considers the factor “material’s

role in relation to the use of the good” as listed in the EN to GRI 3(b). While both the glass and

metal “contribute[] to decorative appearance” and are “part of [the] structure,” the glass further

functions to direct and distribute light through refraction and diffusion, to protect the lamp, and

to shield the lamp from view. (Id.) According to Mr. Mintz, “[t]he glass shade is so heavily

articulated by a variety of prisms, flutes, concentric rings, painted bands, clearly that’s the main

Consol. Court No. 00-00061 Page 51

decorative element[s]” (Trial Tr. 394, Oct. 18) and the “articulated drum . . . will both glow in

the painted bands and sparkle in the clear prismatic and fluted bands” (id. at 396).

This Court finds that the metal component: consists of a standard metal fitter of a chrome

finish; comprises approximately one-fifth of the total visible surface area; weighs approximately

one-fourth of the entirety of the fixture; contributes to the decorative appearance and structure;

houses the electrical components, and mounts the fixture to the ceiling. This Court finds that the

glass component: consists of a highly stylized decorative shade with four alternating bands, two

of which are painted white, that gives the fixture its name; comprises approximately four-fifths of

the total visible surface area; weighs approximately two-thirds of the entirety of the fixture;

directs and distributes light through refraction and diffusion; protects the lamp; shields the lamp

from view; contributes to the decorative appearance and structure; and defines this fixture from

design and marketability standpoints. Upon careful consideration of the totality of these various

factors, this Court finds that the essential character of SKU 385-432 is imparted by its glass.

Accordingly, this Court holds that SKU 385-432 and its agreed upon represented SKU 385-429

properly fall under HTSUS subheading 9405.10.80.

(b) SKU 385-396 (Pl. Ex. W-70)

SKU 385-396 is also a “drum” fixture. (Pl. Ex. W-70 at 1.) The description Home Depot

provided for this fixture is nearly identical to that for SKU 385-432; however, Home Depot did

not specify this fixture’s diameter. (Id.) Another difference is that this fixture has a white metal

finish. (Id.) Plaintiff produced as evidence a SKU information packet consisting of a clear, color

image of the fixture. (Pl. Ex. 70.) Both Mr. St. John and Mr. Mintz confirmed that the only

Consol. Court No. 00-00061 Page 52

difference between SKUs 385-432 and 385-396 is the finish on the metal. (Trial Tr. 996-97, Oct.

26; Trial Tr. 1247, Oct. 27.) This Court agrees with the witnesses.

Upon examination of all the evidence, this Court finds that SKUs 385-432 and 385-396

are substantially identical fixtures. This Court finds that a different finish on an otherwise

identical fixture does not affect the essential character analysis. Therefore, adopting and

applying the analysis of SKU 385-432 to SKU 385-396, this Court finds that the essential

character of SKU 385-396 is imparted by the glass. Accordingly, this Court holds that SKU 385-

396 properly falls under HTSUS subheading 9405.10.80.

6. HALOPHANE STYLE

Mr. St. John testified that these fixtures are known as Halophane because they all have at

least one piece of Halophane style glass. (Trial Tr. 1113, Oct. 26.) This Court finds instructive

that these fixtures are known as “Halophane,” which refers to the glass. Mr. St. John explained

that these fixtures are imitation because true Halophane is glass that has been chemically treated.

(Id. at 1112.) Halophane “was originally developed as a large area, high bay, warehouse light.”

(Id.) Mr. Mintz elucidated the name Halophane originates from the company that invented this

type of glass in the 1920s. (Trial Tr. 1379, Oct. 27.) Halophane has become a generic term for a

glass refractor with vertical ribbed prisms in the lighting industry. (Id.) Mr. Mintz asserted “the

reason that anybody would buy any of these [Halophane] fixtures is because . . . they like the

appearance of the [H]alophane or the [H]alophane style refractor.” (Id. at 1385.)

(a) SKU 369-692 (Pl. Ex. W-49)

SKU 369-692 is a “[f]lush mounted wall fixture consisting of a ridged [H]alophane glass

shade set into a metal fitter that is attached by a thin, curved metal stem into a metal mounting

Consol. Court No. 00-00061 Page 53

plate, all of a polished brass finish.” (Pl. Ex. W-49 at 1.) Plaintiff produced as evidence a

physical sample (Pl. Ex. 211), photograph (Pl. Ex. 150) and a SKU information packet (Pl. Ex.

49). The Court noted a discrepancy in the evidence. While the photographs depict a glass shade

with a metal trim, the physical sample of this fixture lacks a metal trim around the shade. Mr.

Mintz testified that he saw the metal ring when he first viewed the sample, and he described that

“it was a polished brass finish trim ring that sat on the bottom edge of the refractor . . .[and was]

maybe 5/8 to 3/4 of an inch wide.” (Trial Tr. 1380, Oct. 27.) This Court accepts the testimony

that this fixture included a polished brass metal ring when it was imported. Mr. St. John offered

that the “base plate and arm are standard items that are used in a variety of different fixtures, and

which have no particular style in and of themselves.” (Pl. Ex. 49 at 3.)

The glass has a visible surface area of 66.4 square inches, which constitutes forty-nine

percent of the whole, and weighs 17.2 ounces, which constitutes sixty-three percent of the total

weight. (Pl. Ex. W-49 at 1.) The metal has a visible surface area of 68.1 square inches, which

constitutes fifty-one percent of the whole, and weighs 7.8 ounces, which constitutes twenty-nine

percent of the total weight. (Id.) It is unclear whether these measurements include the metal trim

ring that is missing from the physical sample. Therefore, this Court finds that the visible surface

area is too close to favor either component but a weight comparison favors the glass. This Court

also considers the factor “material’s role in relation to the use of the good” as listed in the EN to

GRI 3(b). While both the glass and metal “contribute[] to decorative appearance” and are “part

of [the] structure,” the glass further functions to direct and distribute the light through refraction,

to protect the lamp, and to shield the lamp from view. (Id.)

Consol. Court No. 00-00061 Page 54

This Court finds that the metal component: consists of a mounting plate, curved stem,

standard fitter and metal trim ring of a polished brass finish; weighs approximately one-third of

the entirety of the fixture; contributes to the decorative appearance and structure; affixes the

fixture to the wall; and houses the electrical components. This Court finds that the glass

component: consists of a highly stylized decorative historical shade that gives the fixture its

name; weighs approximately two-thirds of the entirety of the fixture; directs and distributes light

through refraction; protects the lamp; shields the lamp from view; breaks up light; and defines

and distinguishes this fixture by its Halophane glass. Upon careful consideration of the totality

of these various factors, this Court finds that the essential character of SKU 369-692 is imparted

by its glass. Accordingly, this Court holds that SKU 369-692 properly falls under HTSUS

subheading 9405.10.80.

(b) SKU 522-787 (Pl. Ex. W-106)

SKU 522-787 is a “[h]anging ceiling fixture consisting of a Halophane glass shade that is

suspended by a metal mounting cap with a polished brass finish. (Pl. Ex. W-106 at 1.) Although

Mr. Mintz noted that Halophane refractors “are curved not straight sided” (Trial Tr. 1382, Oct.

27), he testified that the glass on this fixture has ribs “and to that extent someone might think that

it could be classified as a [H]alophane refractor” (id.). Plaintiff marked for identification a

physical sample of this fixture (Pl. Ex. 239) but failed to move it into evidence. Therefore, the

Court did not consider it in this analysis. Plaintiff did produce as evidence a photograph (Pl. Ex.

178) and SKU information packet (Pl. Ex. 106). Upon examination of these exhibits, Plaintiff’s

Exhibit 178 appears to be missing the metal chain by which the glass shade is suspended.

(Compare Pl. Ex. 106 with Pl. Ex. 178; see also Trial Tr. 1082, Oct. 27.)

Consol. Court No. 00-00061 Page 55

Mr. St. John insisted that the Halophane glass shade comprises almost the fixture’s entire

visible surface area. (Pl. Ex. W-106 at 3.) The glass has a visible surface area of 341.7 square

inches, which constitutes seventy-five percent of the whole, and weighs 78.9 ounces, which

constitutes eighty-six percent of the total weight. (Id.) The metal has a visible surface area of

115.1 square inches, which constitutes twenty-five percent of the whole, and weighs 9.5 ounces,

which constitutes ten percent of the total weight. (Id.) Although it is unclear whether the metal

chain was included in these measurements, any impact the chain might have on the

measurements is insignificant and would not affect the outcome. Further, this Court finds that

the glass has much greater visible surface area and weighs notably more than the metal. This

Court also considers the factor “material’s role in relation to the use of the good” as listed in the

EN to GRI 3(b). While both the glass and metal “contribute[] to decorative appearance” and are

“part of [the] structure,” the glass further functions to direct and distribute the light through

refraction and to protect the lamp. (Id.)

This Court finds that the metal component: consists of a mounting cap of a polished brass

finish; comprises one-fourth of the total visible surface area; weighs one-tenth of the entirety of

the fixture; contributes to the decorative appearance and structure; and suspends the fixture from

the ceiling. This Court finds that the glass component: consists of a highly stylized decorative

historical shade that gives the fixture its name; comprises three-fourths of the total visible surface

area; weighs approximately four-fifths of the entirety of the fixture; directs and distributes light

through refraction; protects the lamp; establishes the fixture’s scale; and defines and

distinguishes this fixture by its Halophane glass. Upon careful consideration of the totality of

these various factors, this Court finds that the essential character of SKU 522-787 is imparted by

Consol. Court No. 00-00061 Page 56

its glass. Accordingly, this Court holds that SKU 522-787 properly falls under HTSUS

subheading 9405.10.80.

(c) SKU 629-590 (Pl. Ex. W-112)

SKU 629-590 is a “[w]all sconce consisting of a [H]alophane glass diffuser affixed to a

metal mounting plate with a polished brass finish.” (Pl. Ex. W-112 at 1.) Plaintiff produced as

evidence a physical sample (Pl. Ex. 243), photograph (Pl. Ex. 182) and SKU information packet

(Pl. Ex. 112). Mr. St. John explained that this fixture is a “[H]alophane quarter sphere39 wall

sconce.” (Trial Tr. 1115, Oct. 26.) Mr. Mintz further offered that this fixture is a wall sconce

with “a ribbed prismatic refractor against a polished metal trapezoidal mounting plate.” (Trial

Tr.1383, Oct. 27.)

The glass has a visible surface area of 54.1 square inches, which constitutes fifty-three

percent of the whole, and weighs 13.8 ounces, which constitutes fifty-six percent of the total

weight. (Pl. Ex. W-112 at 1.) The metal has a visible surface area of 47.1 square inches, which

constitutes forty-seven percent of the whole, and weighs 9.9 ounces, which constitutes forty

percent of the total weight. (Id.) Upon examination of the physical sample, this Court finds that

the metal backplate is visible through the glass, and it appears to comprise as much, if not more,

surface area than the glass. This Court also finds that the measurements for weight, however,

suitably favor the glass over the metal. This Court also considers the factor “material’s role in

relation to the use of the good” as listed in the EN to GRI 3(b). While both the glass and metal

“contribute[] to decorative appearance” and are “part of [the] structure,” the glass further

39

Mr. St. John explained that quarter sphere is when a complete ball is cut in quarters.

(Trial Tr. 1115, Oct. 26.)

Consol. Court No. 00-00061 Page 57

functions to direct and distribute the light through the refraction, to protect the lamp excluding

the top view, and to shield the lamp from view. (Id.)

This Court finds that the metal component: consists of a trapezoidal-shaped backplate of

a polished brass; comprises approximately one-half of the total visible surface area but is almost

entirely visible through the glass; weighs approximately two-fifths of the entirety of the fixture;

contributes to the decorative appearance and structure; affixes the fixture to the wall; houses the

electrical components; and contributes to the fixture’s scale with the backplate. This Court finds

that the glass component: consists of a highly stylized decorative historical shade that gives the

fixture its name; comprises approximately one-half of the total visible surface area; weighs

approximately one-half of entirety of the fixture; directs and distributes light through refraction;

protects the lamp; contributes to the fixture’s scale with the curved shape of the shade; and

defines and distinguishes this fixture from others by its Halophane style glass.

Upon careful consideration of the totality of these various factors, this Court finds that

both the glass and metal are equally important. When a court determines that two or more

subheadings merit equal consideration, the GRI is structured with a default provision. “When

goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading

which occurs last in numerical order among those which equally merit consideration.” GRI 3(c).

Since both the glass and metal components merit equal consideration, this Court finds that

application of GRI 3(c) is appropriate for this fixture. See, e.g., Orlando Foods v. United States,

140 F.3d 1437, 1442 (Fed. Cir. 1998) (“GRI 3(c) . . . provides that if determination of relative

specificity is not possible, goods should be classified according to the heading which occurs last

in numerical order.”) The classifications at issue in this case are subheading 9405.10.60 for light

Consol. Court No. 00-00061 Page 58

fittings “of base metal” “other than of brass” and subheading 9405.10.80 for light fittings of

“other” than “of base metal.” This Court notes that subheading 9405.10.80 occurs last in

numerical order. Accordingly, this Court holds that SKU 629-590 falls under HTSUS

subheading 9405.10.80 through application of GRI 3(c).

(d) SKU 828-726 (Pl. Ex. W-125)

SKU 828-726 is a “[h]anging ceiling fixture consisting of an umbrella-shaped fluted

Halophane glass shade with a metal trim ring of polished brass finish, which mounts into a metal

fitter, also of brass finish.” (Pl. Ex. W-125 at 1.) Notwithstanding Plaintiff’s withdrawal of the

physical sample (Pl. Ex. 248),40 Plaintiff produced a photograph (Pl. Ex. 187) and SKU

information packet (Pl. Ex. 125). This Court notes that the images of the fixture differ slightly in

Plaintiff’s evidence. Plaintiff’s Exhibit 125 depicts a bowl-shaped shade with a metal trim ring

and suspension chain. Plaintiff’s Exhibit 187 depicts a funnel-shaped shade with neither a trim

ring nor a chain. Nevertheless, these differences do not impact this Court’s conclusion.

Mr. St. John insisted that the Halophane glass shade comprises nearly all of the fixture’s

visible surface area. (Pl. Ex. W-125 at 3.) The glass has a visible surface area of 365.2 square

inches, which constitutes seventy-nine percent of the whole, and weighs 143.3 ounces, which

constitutes ninety percent of the total weight. (Id. at 1.) The metal has a visible surface area of

97.1 square inches, which constitutes twenty-one percent of the whole, and weighs 13.3 ounces,

which constitutes eight percent of the total weight. (Id.) Despite the fact there may be a missing

metal chain originally included with this fixture, this Court finds that the glass has much greater

40

On the final day of trial, Plaintiff submitted to this Court a list of withdrawn exhibits,

including Plaintiff’s Exhibit 248, which was only marked for identification during the tenure of

the trial. (Trial Tr. 1785, Nov. 2.)

Consol. Court No. 00-00061 Page 59

visible surface area and weighs notably more than the metal. This Court also considers the factor

“material’s role in relation to the use of the good” as listed in the EN to GRI 3(b). While both

the glass and metal “contribute[] to decorative appearance” and are “part of [the] structure,” the

glass further functions to direct and distribute the light through the refraction, to protect the lamp,

and to shield lamp from view. (Id.)

This Court finds that the metal component: consists of a mounting cap of polished brass

finish; comprises approximately one-fifth of the total visible surface area; weighs approximately

one-tenth of the entirety of the fixture; contribute to the decorative appearance and structure; and

suspends the fixture from the ceiling. This Court finds that the glass component: consists of a

highly stylized decorative historical shade that gives the fixture its name; comprises four-fifths of

the total visible surface area; weighs nine-tenths of the entirety of the fixture; directs and

distributes light through refraction; protects the lamp; shields lamp from partial view; establishes

the fixture’s scale; and defines and distinguishes this fixture by its Halophane style glass. Upon

careful consideration of the totality of these various factors, this Court finds that the essential

character of SKU 828-726 is imparted by its glass. Accordingly, this Court holds that SKU 828-

726 properly falls under HTSUS subheading 9405.10.80.

(e) SKU 828-734 (Pl. Ex. W-126)

SKU 828-734 is a “[w]all-fixture consisting two fluted Halophane glass shades, each with

a metal bottom trim ring and mounted into a fitter that attaches to a small metal center-bar and

escutcheon plate41 by means of a thin, curved metal stem.” (Pl. Ex. W-126 at 1.) Plaintiff

produced as evidence a SKU information packet which includes an adequate image of this

41

An “escutcheon plate” is a decorative backplate. (Trial Tr. 1280, Oct. 27.)

Consol. Court No. 00-00061 Page 60

fixture. (Pl. Ex. 126.) Mr. St. John testified that SKU 828-734 is a two-lamp version of SKU

369-692. (Trial Tr. 1116, Oct. 26.) This Court agrees.

This Court finds that SKUs 369-692 and 828-734 are substantially identical fixtures.

This Court finds that the difference of the number of lamps on otherwise identical fixtures does

not significantly affect the essential character analysis. Therefore, adopting and applying the

analysis of SKU 369-692 to SKU 828-734, this Court finds that the essential character of SKU

828-734 is imparted by its glass. Accordingly, this Court holds that SKU 828-734 properly falls

under HTSUS subheading 9405.10.80.

7. VICTORIAN STYLE42

Mr. Mintz explained that the this fixture’s style is called Victorian in the industry because

“it’s a fancy design. Victorian fabrics, Victorian wallpaper [] had a lot of flower motifs and

[were] very decorative.” (Trial Tr. 1252-53, Oct. 27.) Mr. Mintz advanced that the first six

fixtures in this group have identical shades. (Id. at 1262.) He explained that the fixtures in this

group have “substantially the same glass shade” which provides the “‘Victorian’ characteristic”

(id.) and “distinctive appearance” (id. at 1264). This group of fixtures uses a standard fitter. (Id.

at 1263; Trial Tr. 1007, Oct. 26.)

(a) SKU 361-570 (Pl. Ex. W-43)

SKU 361-570 is a “[f]lush mounted ceiling fixture consisting of a translucent, white,

frosted glass shade, with ridges, pebbling and fluting set into a ridged, metal mounting plate of

a[n] antique brass finish.” (Pl. Ex. W-43 at 1.) Plaintiff produced as evidence a physical sample

42

Although Plaintiff named this group “Victorian Fluted” (see Phase II 3), this Court

elects to drop the term fluted since Plaintiff’s own witnesses had differing definitions for fluted

but they both agreed that all the fixtures in this group are Victorian. (Compare Trial Tr. 1004,

Oct. 26, with Trial Tr.1261-62, Oct. 27.)

Consol. Court No. 00-00061 Page 61

(Pl. Ex. 207), photograph (Pl. Ex. 146) and SKU information packet (Pl. Ex. 43.) Although

admitting that “the [metal] canopy is decorative,” Mr. Mintz declared that the canopy “is

subordinate in decorative appearance to the shade.” (Pl. Ex. W-43 at 3.)

The glass has a visible surface area of 37.7 square inches, which constitutes forty percent

of the whole, and weighs 7.1 ounces, which constitutes fifty-five percent of the total weight. (Pl.

Ex. W-43 at 1.) The metal has a visible surface area of 56.7 square inches, which constitutes

sixty percent of the whole, and weighs 3.9 ounces, which constitutes thirty percent of the total

weight. (Id.) This Court finds that the metal has greater visible surface area than the glass, but

the glass weighs more than the metal. This Court also considers the factor “material’s role in

relation to the use of the good” as listed in the EN to GRI 3(b). While both the glass and metal

“contribute[] to decorative appearance” and are “part of [the] structure,” the glass further

functions to direct and soften light through diffusion, to protect the lamp, and to shield the lamp

from view. (Id.)

This Court finds that the metal component: consists of a standard fitter and decorative

canopy of an antique brass finish; comprises approximately three-fifths of the total visible

surface area; weighs approximately one-third of the entirety of the fixture; contributes to the

decorative appearance and structure; houses the electrical components, and mounts the fixture to

the ceiling. This Court finds that the glass component: consists of a highly stylized Victorian era

shade; comprises approximately two-fifths of the total visible surface area; weighs approximately

one-half of the entirety of the fixture; directs and softens light through diffusion; protects the

lamp; shields the lamp from view; contributes to the decorative appearance and structure; and

defines this fixture from design and marketability standpoints. This Court finds that the

Consol. Court No. 00-00061 Page 62

Victorian style shade distinguishes this fixture. Upon careful consideration of the totality of

these various factors, this Court finds that the essential character of SKU 361-570 is imparted by

its glass. Accordingly, this Court holds that SKU 361-570 properly falls under HTSUS

subheading 9405.10.80.

(b) SKU 361-617 (Pl. Ex. W-44)

SKU 361-617 is a “[f]lush mounted ceiling fixture consisting of three translucent, white,

frosted glass shades, with ridges, pebbling and fluting set into a ridged, metal mounting plate of

a[n] antique brass finish.” (Pl. Ex. W-44 at 1.) Plaintiff produced as evidence a physical sample

(Pl. Ex. 208), photograph (Pl. Ex. 147) and SKU information packet (Pl. Ex. 44). Mr. St. John

submitted that this fixture is “essentially the same fixture [as SKU 361-570]; however, it has

three [] Victorian fluted glass shades.” (Trial Tr. 1000, Oct. 26.) Mr. Mintz further explained

that this fixture appears to have “the same finish on the fitter, but it’s a 3 lamp cluster rather than

a single.” (Trial Tr. 1253, Oct. 27.) He also noted that SKUs 361-570 and 361-617 have the

same glass shades. (Id.) This Court agrees with the witnesses.

The glass has a visible surface area of 113.1 square inches, which constitutes fifty-four

percent of the whole, and weighs 20.4 ounces, which constitutes fifty-nine percent of the total

weight. (Pl. Ex. W-44 at 1.) The metal has a visible surface area of 95.9 square inches, which

constitutes forty-six percent of the whole, and weighs 8.5 ounces, which constitutes twenty-five

percent of the total weight. (Id.) This Court finds that the glass has greater visible surface area

and weighs notably more than the metal. This Court also considers the factor “material’s role in

relation to the use of the good” as listed in the EN to GRI 3(b). While both the glass and metal

“contribute[] to decorative appearance” and are “part of [the] structure,” the glass further

Consol. Court No. 00-00061 Page 63

functions to direct and soften light through diffusion, to protect the lamp, and to shield the lamp

from view. (Id.)

This Court finds that the metal component: consists of three standard fitters and a

decorative canopy of an antique brass finish; comprises approximately one-half of the total

visible surface area; weighs one-fourth of the entirety of the fixture; contributes to the decorative

appearance and structure; houses the electrical components, and affixes the fixture to the wall.

This Court finds that the glass component: consists of three highly stylized Victorian era shades;

comprises approximately one-half of the total visible surface area; weighs approximately three-

fifths of the entirety of the fixture; directs and softens light through diffusion; protects the lamp;

shields the lamp from view; contributes to the decorative appearance and structure; and defines

this fixture from design and marketability standpoints. This Court finds that the Victorian style

shades distinguishes this fixture. Upon careful consideration of the totality of these various

factors, this Court finds that the essential character of SKU 361-617 is imparted by its glass.

Accordingly, this Court holds that SKU 361-617 properly falls under HTSUS subheading

9405.10.80.

(c) SKU 361-620 (Pl. Ex. W-45)

SKU 361-620 is a “[f]lush mounted ceiling fixture consisting of three translucent, white,

frosted glass shades, with ridges, pebbling and fluting set into a ridged, metal mounting plate of a

brass finish.” (Pl. Ex. W-45 at 1.) Plaintiff produced as evidence a physical sample (Pl. Ex.

209), photograph (Pl. Ex. 148) and SKU information packet (Pl. Ex. 45). Mr. St. John asserted

that this fixture is the same as SKU 361-617 but in a polished brass finish rather than an antique

brass finish. (Trial Tr. 1001, Oct. 26.)

Consol. Court No. 00-00061 Page 64

This fixture’s visible surface area and weight measurements and the material’s roles in

relation to the use of the good are identical to SKU 361-617. (Compare Pl. Ex. W-44 at 1 with

Pl. Ex. W-45 at 1.) Upon examination of all the evidence, this Court finds that SKUs 361-617

and 361-620 are substantially identical fixtures. This Court finds that a different finish on an

otherwise identical fixture does not affect the essential character analysis. Therefore, adopting

and applying the analysis of SKU 361-617 to SKU 361-620, this Court finds that the essential

character of SKU 361-620 is imparted by the glass. Accordingly, this Court holds that SKU 361-

620 properly falls under HTSUS subheading 9405.10.80.

(d) SKU 361-634 (Pl. Ex. W-46)

SKU 361-634 is a “[f]lush mounted wall fixture consisting of a translucent, white, frosted

glass shade, with ridges, pebbling and fluting set into a metal fitter that is attached by a thin,

curved metal stem into a ridge, metal mounting plate” (Pl. Ex. W-46 at 1), all of an

antique brass finish (Trial Tr. 1256, Oct. 27). Plaintiff produced as evidence a physical sample

(Pl. Ex. 210), photograph (Pl. Ex. 149) and SKU information packet (Pl. Ex. 46). Mr. Mintz

offered that this fixture is a wall sconce version as SKU 361-570. (Trial Tr. 1255, Oct. 27.) Mr.

St. John explained that “once again you have the same piece of glass [as other fixtures in this

group], the same backplate, you simply add a light tubing arm to the fixture.” (Trial Tr. 1001-02,

Oct. 26.)

The glass has a visible surface area of 30.6 square inches, which constitutes thirty-seven

percent of the whole, and weighs 6.9 ounces, which constitutes forty-six percent of the total

weight. (Pl. Ex. W-46 at 1.) The metal has a visible surface area of 53.2 square inches, which

constitutes sixty-three percent of the whole, and weighs 6.2 ounces, which constitutes forty-one

Consol. Court No. 00-00061 Page 65

percent of the total weight. (Id.) This Court finds that the metal has more visible surface area

than the glass, but the glass weighs slightly more than the metal. This Court also considers the

factor “material’s role in relation to the use of the good” as listed in the EN to GRI 3(b). While

both the glass and metal “contribute[] to decorative appearance” and are “part of [the] structure,”

the glass further functions to direct and soften light through diffusion, to protect the lamp, and to

shield the lamp from view. (Id.)

This Court finds that the metal component: consists of a standard fitter, curved stem, and

decorative canopy of an antique brass finish; comprises than two-thirds of the total visible

surface area; weighs approximately two-fifths of the entirety of the fixture; contributes to the

decorative appearance and structure; houses the electrical components; and affixes the fixture to

the wall. This Court finds that the glass component: consists of a highly stylized Victorian era

shade; comprises approximately one-third of the total visible surface area; weighs approximately

one-half of the entirety of the fixture; directs and softens light through diffusion; protects the

lamp; shields the lamp from view; contributes to the decorative appearance and structure; and

defines this fixture from design and marketability standpoints. Notwithstanding the contribution

of the curved metal arm in this fixture, this Court finds that the Victorian style shade

distinguishes this fixture. Upon careful consideration of the totality of these various factors, this

Court finds that the essential character of SKU 361-634 is imparted by its glass. Accordingly,

this Court holds that SKU 361-634 properly falls under HTSUS subheading 9405.10.80.

(e) SKU 361-651 (Pl. Ex. W-47)

SKU 361-651 is a “[f]lush mounted wall fixture consisting of a translucent, glass shade

with ridges, pebbling and fluting set into a metal fitter that is attached by a thin, curved metal

Consol. Court No. 00-00061 Page 66

stem into a ridge, metal mounting plate.” (Pl. Ex. W-47 at 1.) Plaintiff produced as evidence a

SKU information packet consisting of an adequate image of the fixture. (Pl. Ex. 47.) Mr. St.

John asserted that this fixture is identical to SKU 361-634, except this fixture has a polished

brass finish. (Trial Tr. 1002, Oct. 26.) Mr. Mintz confirmed that the only difference between

these two fixtures is the finish on the metal. (Trial Tr. 1256, Oct. 27.)

Upon examination of all the evidence, this Court finds that SKUs 361-634 and 361-651

are substantially identical fixtures. This Court finds that a different finish on an otherwise

identical fixture does not affect the essential character analysis. Therefore, adopting and applying

the analysis of SKU 361-634 to SKU 361-651, this Court finds that the essential character of

SKU 361-651 is imparted by the glass. Accordingly, this Court holds that SKU 361-651

properly falls under HTSUS subheading 9405.10.80.

(f) SKU 361-665 (Pl. Ex. W-48)

SKU 361-665 is a “[f]lush mounted wall fixture consisting of two translucent glass

shades, with ridges, pebbling and fluting set into metal fitters that are attached by thin, curved

metal stems into a ridged, metal mounting plate, all of a brass finish.” (Pl. Ex. W-48 at 1.)

Plaintiff produced as evidence a SKU information packet consisting of an adequate image of the

fixture. (Pl. Ex. 48.) Mr. Mintz posited that “[SKU 361-665] is similar to [SKU 361-634], only

it has 2 lamps, 2 shades, 2 arms. And it is antique brass.” (Trial Tr. 1256, Oct. 27.) This Court

agrees with the witness.

Upon its own examination of the evidence, this Court finds that SKUs 361-634 and 361-

665 are substantially identical fixtures. This Court finds that the number of shades and arms on

otherwise identical fixtures does not significantly affect the essential character analysis.

Consol. Court No. 00-00061 Page 67

Therefore, adopting and applying the analysis of SKU 361-634 to SKU 361-665, this Court finds

that the essential character of SKU 361-665 is imparted by the glass. Accordingly, this Court

holds that SKU 361-665 properly falls under HTSUS subheading 9405.10.80.

(g) SKU 586-307 (Pl. Ex. W-111)

SKU 586-307 is a “[f]lush mounted wall sconce consisting of a translucent white frosted

glass shade mounted in a metal base affixed to a metal mounting plate, each with a polished brass

finish with [an] on/off switch.” (Pl. Ex. W-111 at 1.) Plaintiff produced as evidence a physical

sample (Pl. Ex. 242), photograph (Pl. Ex. 181) and SKU information packet (Pl. Ex. 111). Mr.

St. John claimed that this fixture is “very similar to [SKU 361-634], except the glass shade is

supported slightly differently. It’s still a one light sconce and we have added an on-and-off

switch to it . . . And the glass [shade] is slightly different. However, it is still a Victorian flute.”

(Trial Tr. 1002, Oct. 26.) He explained that this fixture’s glass is blown – “air is blown into the

glass to mold it into this shape” – and it “is only partially frosted with a grape pattern in it.” (Id.

at 1003.)

The glass has a visible surface area of 49.2 square inches, which constitutes fifty-five

percent of the whole, and weighs 5.0 ounces, which constitutes forty-six percent of the total

weight. (Pl. Ex. W-111 at 1.) The metal has a visible surface area of 40.6 square inches, which

constitutes forty-five percent of the whole, and weighs 4.0 ounces, which constitutes thirty-seven

percent of the total weight. (Id.) This Court finds that the visible surface area and weight favors

the glass over the metal. This Court also considers the factor “material’s role in relation to the

use of the good” as listed in the EN to GRI 3(b). While both the glass and metal “contribute[] to

Consol. Court No. 00-00061 Page 68

decorative appearance” and are “part of [the] structure,” the glass further functions to direct and

soften light through diffusion, to protect the lamp, and to shield the lamp from view. (Id.)

This Court finds that the metal component: consists of a base and mounting plate of a

polished brass finish; comprises approximately one-half of the total visible surface area; weighs

approximately one-third of the entirety of the fixture; contributes to the decorative appearance

and structure; houses the electrical components, and affixes the fixture to the wall. This Court

finds that the glass component: consists of a blown, highly stylized Victorian era shade;

comprises approximately one-half of the total visible surface area; weighs approximately one-

half of the entirety of the fixture; directs and softens light through diffusion; protects the lamp;

shields the lamp from view; contributes to the decorative appearance and structure; and defines

this fixture from design and marketability standpoints. This Court finds that the Victorian style

shade distinguishes this fixture. Upon careful consideration of the totality of these various

factors, this Court finds that the essential character of SKU 586-307 is imparted by its glass.

Accordingly, this Court holds that SKU 586-307 properly falls under HTSUS subheading

9405.10.80.

(h) SKU 692-320 (Pl. Ex. W-116)

SKU 692-320 is apparently a “[f]lush mounted wall sconce consisting of a translucent

white frosted glass shade mounted in a metal base affixed to a metal mounting plate, of unknown

finish with [an] on/off switch.” (Pl. Ex. W-116 at 1.) Plaintiff produced as evidence a SKU

information packet consisting of a low quality photograph. (Pl. Ex. 116.) Mr. Mintz stated that

be believes the last two fixtures have identical shades. (Trial Tr. 1262, Oct. 27.)

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Mr. Mintz surmised that SKUs 586-307 and 692-320 are identical. (Id.) However, upon

further questioning from the Court, Mr. Mintz admitted that he was uncertain. (Id. at 1263.)

Although Mr. St. John offered testimony that this group’s most important feature from a

performance perspective is the glass shades, (Trial Tr. 1009, Oct. 26), this Court finds this

general testimony insufficient without any corroborating evidence. Upon its own examination of

Plaintiff’s Exhibit 116 and consideration of witness testimony, this Court finds the evidence

inadequate to determine the characteristics of the fixture.

As previously discussed, Customs enjoys a statutory presumption of correctness in its

original classification determinations. Although an importer may overcome this presumption by

a preponderance of the evidence, this Court finds that Plaintiff has not produced sufficient

evidence for SKU 692-320 to rebut this statutory presumption. Accordingly, this Court holds

that Customs’ classification of SKU 692-320 under HTSUS subheading 9405.10.60 stands.

8. FLUSH MOUNT BOUND GLASS

Mr. St. John testified that the flush mount bound glass fixtures have beveled glass edges,

which was the “fashion back in the ‘70s and ‘80s. It was all about the beveled glass.43 It was the

traditional style at a price point at the time.” (Trial Tr. 107, Oct. 17.) Mr. Mintz asserted that this

flush mount bound group is of the same family but “these fixtures vary in their size and in their

finish.” (Trial Tr. 1324-25, Oct. 27.) He explained that “[i]t is basically the same design which

is a very thin metal frame which supports glass panels which are beveled edged. And it’s clear to

me that the design of the frame is such that it’s intended to minimize the mass and appearance of

the frame.” (Id. at 1325.)

43

According to Mr. St. John, “beveled edges are part of the refraction[,] that help spread

the light out in a larger area.” (Trial Tr. 108, Oct. 17.)

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(a) SKU 385-091 (Pl. Ex. W-59)

SKU 385-091 is listed as an agreed upon representative SKU in the Joint Report but there

are no represented SKUs listed. (Joint Report 3-4.) This fixture is a “[f]lush mounted ceiling

fixture, 11 inches across. The fixture consists of a housing of beveled glass panels held in place

by thin metal members, and a metal mounting plate with attached lamp holders.” (Pl. Ex. W-59

at 1.) The metal component is of a white finish. (Id.) The fixture has four lamps. (Pl. Ex. W-59

at 3.) Plaintiff produced as evidence a physical sample (Pl. Ex. 215), photograph (Pl. Ex. 154)

and SKU information packet (Pl. Ex. 59). Mr. St. John testified that this fixture was

discontinued about three years ago. (Trial Tr. 105, Oct. 17.)

Regarding the design of the fixture, Mr. St. John explained “the [painted white steel]

metal trim that you see here is simply attached to the glass so it can be soldered together. If it

were possible to make a permanent attachment of the glass without the metal, there would be no

metal.” (Id. at 106.) Mr. Mintz admitted the “glass is not a free-standing item” (Trial Tr. 377,

Oct. 18), “[b]ut every attempt has been made to minimize it” (id. at 374). He asserted that “by

virtue of the fact that the glass has a beveled edge [it] is the most important design feature.” (Id.

at 373.)

The glass has a visible surface area of 123.4 square inches, which constitutes fifty percent

of the whole, and weighs 39.4 ounces, which constitutes seventy-two percent of the total weight.

(Pl. Ex. W-59 at 1.) The metal has a visible surface area of 121.1 square inches, which

constitutes fifty percent of the whole, and weighs 14.3 ounces, which constitutes twenty-six

percent of the total weight. (Id.) This Court finds that the glass and metal are equal in visible

surface area, but the glass weighs notably more than the metal. This Court also considers the

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factor “material’s role in relation to the use of the good” as listed in the EN to GRI 3(b). While

both the glass and metal “contribute[] to decorative appearance” and are “part of [the] structure,”

the glass further functions to direct and distribute light through refraction and to protect the lamp.

(Id.)

This Court finds that the metal component: consists of a thin member framework, cap and

knob of a white painted finish; comprises approximately one-half of the total visible surface area;

weighs approximately one-fourth of the entirety of the fixture; contributes to the decorative

appearance and structure; houses the electrical components, mounts the fixture to the ceiling; and

holds the glass panels in place. This Court finds that the glass component: consists of beveled

glass panels soldered together; comprises one-half of the total visible surface area; weighs

approximately three-fourths of the entirety of the fixture; directs and distributes light through

refraction; protects the lamp; contributes to the decorative appearance and structure; and defines

this fixture from design and marketability standpoints. This Court finds that the beveled glass

panels distinguish this fixture. Upon careful consideration of the totality of these various factors,

this Court finds that the essential character of SKU 385-091 is imparted by its glass.

Accordingly, this Court holds that SKU 385-091 properly falls under HTSUS subheading

9405.10.80.

(b) SKU 385-057 (Pl. Ex. W-55)

SKU 385-057 is a “[f]lush mounted ceiling fixture consisting of a housing of beveled

glass panels held in place by thin metal members, and a metal mounting plate with attached lamp

holders.” (Pl. Ex. W-55 at 1.) Plaintiff produced as evidence a SKU information packet

consisting of an adequate image of the fixture. (Pl. Ex. 55.) Plaintiff’s witnesses offered

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inconsistent testimony regarding the finish of this fixture. Mr. St. John testified that the finish is

“verdigris”(Trial Tr. 1065, Oct. 26) while Mr. Mintz submitted that the finish is “polished brass”

(Trial Tr. 1325, Oct. 27). Upon its own examination, this Court finds that the image is not clear

enough to determine the color of the finish. However, the Court finds this inconsistency does not

affect the outcome of the analysis.

Mr. Mintz testified that this fixture is a smaller version of SKU 385-091 – this fixture is

nine inches in diameter with three lamps. (Trial Tr. 1325, Oct. 27; see also Pl. Ex. W-55.) Upon

examination of all the evidence, this Court finds that SKUs 385-091 and 385-057 are

substantially identical fixtures. This Court finds the differences of finish on the metal and

relative smaller size do not significantly affect the essential character analysis as discussed

directly above. Therefore, adopting and applying the analysis of SKU 385-091 to SKU 385-057,

this Court finds that the essential character of SKU 385-057 is imparted by the glass.

Accordingly, this Court holds that SKU 385-057 properly falls under HTSUS subheading

9405.10.80.

(c) SKU 385-060 (Pl. Ex. W-56)

SKU 385-060 is a “[f]lush mounted ceiling fixture consisting of a housing of beveled

glass panels held in place by thin metal members, and a metal mounting plate with attached lamp

holders [of a] white metal finish.” (Pl. Ex. W-56 at 1.) Plaintiff produced as evidence a SKU

information packet consisting of a clear, color photocopy of the fixture. (Pl. Ex. 56.) Plaintiff’s

witnesses asserted that SKU 385-060 is essentially the same as SKU 385-091, except perhaps

with a different number of lamps. (Trial Tr. 1069, Oct. 26; Trial Tr. 1287, Oct. 27.)

Consol. Court No. 00-00061 Page 73

Upon examination of all the evidence, this Court finds that SKUs 385-091 and 385-060

are substantially identical fixtures. This Court finds that a different number of lamps in an

otherwise identical fixture do not affect the essential character analysis. Therefore, adopting and

applying the analysis of SKU 385-091 to SKU 385-060, this Court finds that the essential

character of SKU 385-060 is imparted by the glass. Accordingly, this Court holds that SKU 385-

060 properly falls under HTSUS subheading 9405.10.80.

(d) SKU 385-074 (Pl. Ex. W-57)

SKU 385-074 is a “[f]lush mounted ceiling fixture consisting of a housing of beveled

glass panels held in place by thin metal members, and a metal mounting plate with attached lamp

holders [of a] polished brass metal finish.” (Pl. Ex. W-57 at 1.) Plaintiff produced as evidence a

SKU information packet consisting of a color photocopy of the fixture. (Pl. Ex. 57.) Both Mr.

St. John and Mr. Mintz testified that the only difference between SKUs 385-091 and 385-074 is

the color of the finish. (Trial Tr. 1065, Oct. 26; Trial Tr. 1325, Oct. 27.)

Upon examination of all the evidence, this Court finds that SKUs 385-091 and 385-074

are substantially identical fixtures. This Court finds that a different finish on an otherwise

identical fixture does not affect the essential character analysis. Therefore, adopting and

applying the analysis of SKU 385-091 to SKU 385-074, this Court finds that the essential

character of SKU 385-074 is imparted by the glass. Accordingly, this Court holds that SKU 385-

074 properly falls under HTSUS subheading 9405.10.80.

(e) SKU 385-088 (Pl. Ex. W-58)

SKU 385-088 is a “[f]lush mounted ceiling fixture consisting of a housing of beveled

glass panels held in place by thin metal members, and a metal mounting plate with attached lamp

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holders [of a] verde metal finish.” (Pl. Ex. W-58 at 1.) Plaintiff produced as evidence a SKU

information packet consisting of a low quality image of the fixture. (Pl. Ex. 58.)

Mr. St. John testified that the only difference between SKUs 385-091 and 385-088 is the

color of the finish. (Trial Tr. 1065, Oct. 26.) This Court finds the image inadequate to determine

the color of the finish. (Pl. Ex. 58 at 1.) The text of the SKU information packet, however,

indicates that SKUs 385-088, 385-091 and 385-124 are similar but for their finishes. (Id.) Upon

examination of all the evidence, this Court finds that SKUs 385-091 and 385-088 are

substantially identical fixtures. This Court finds that a different finish on an otherwise identical

fixture does not affect the essential character analysis. Therefore, adopting and applying the

analysis of SKU 385-091 to SKU 385-088, this Court finds that the essential character of SKU

385-088 is imparted by the glass. Accordingly, this Court holds that SKU 385-088 properly falls

under HTSUS subheading 9405.10.80.

(f) SKU 385-124 (Pl. Ex. W-60)

SKU 385-124 is a “[f]lush mounted ceiling fixture consisting of a housing of beveled

glass panels held in place by thin metal members, and a metal mounting plate with attached lamp

holders [with a] polished brass metal finish.” (Pl. Ex. W-60 at 1.) Plaintiff produced as evidence

a SKU information packet with a low quality image of the fixture. (Pl. Ex. 60.)

Both Mr. St. John and Mr. Mintz testified that the only difference between SKUs 385-091

and 385-124 is the color of the finish. (Trial Tr. 1065, Oct. 26; Trial Tr. 1325, Oct. 27.) This

Court finds the image inadequate to determine the color of the finish. (Pl. Ex. 60 at 1.) As

noted above, the text of the SKU information packet, however, indicates that SKUs 385-088,

385-091 and 385-124 are the similar but for their finishes. (Id.) Although admitting he could not

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determine the finish from the photograph, Mr. St. John asserted that the finish on this fixture is

polished brass because “the SKU number refers to model F 173 PB, PB stands for polished

brass.” (Trial Tr. 1066, Oct. 26.) Upon examination of all the evidence, this Court finds that

SKUs 385-091 and 385-124 are substantially identical fixtures. This Court finds that a different

finish on an otherwise identical fixture does not affect the essential character analysis. Therefore,

adopting and applying the analysis of SKU 385-091 to SKU 385-124, this Court finds that the

essential character of SKU 385-124 is imparted by the glass. Accordingly, this Court holds that

SKU 385-124 properly falls under HTSUS subheading 9405.10.80.

9. SEMI-CIRCULAR WALL SCONCE

The semi-circular portion refers to the glass in this group of wall sconces. Mr. St. John

testified that the difference within this group is only the style and shape of the glass. (Trial Tr.

1128, Oct. 26.)

(a) SKU 746-871 (Pl. Ex. W-117)

SKU 746-871 is a “[w]all sconce consisting of a glass diffuser mounted into a metal

bottom mounting cap.” (Pl. Ex. W-117 at 1.) Plaintiff withdrew its Exhibit 184 which was

intended to be a photograph of the fixture. (Trial Tr. 1123, 1130, Oct. 26.) Furthermore, because

Plaintiff failed to offer into evidence a physical sample of the fixture – Plaintiff’s Exhibit 245 –

that was marked for identification, this Court cannot consider it. Plaintiff did produce as

evidence a SKU information packet with an adequate image of the fixture. (Pl. Ex. 117.) Mr. St.

John described this fixture as an “1-light wall sconce with white-cased glass” that has “a polished

brass decorative cap and ball that holds it to its backplate.” (Trial Tr. 1127, Oct. 26.) Mr. Mintz

further described this fixture as “one-half of a translucent glass urn shape.” (Trial Tr. 1391, Oct.

Consol. Court No. 00-00061 Page 76

27.) He claimed “that the appearance, performance and marketability of this fixture are based

almost entirely on the size, shape and appearance of the glass.” (Pl. Ex. W-117 at 3.)

The glass has a visible surface area of 92.8 square inches, which constitutes ninety-two

percent of the whole, and weighs 16.2 ounces, which constitutes eighty-two percent of the total

weight. (Id. at 1.) The metal has a visible surface area of 7.6 square inches, which constitutes

eight percent of the whole, and weighs 1.4 ounces, which constitutes seven percent of the total

weight. (Id.) This Court finds that the glass has much greater visible surface area and weighs

notably more than the metal. This Court also considers the factor “material’s role in relation to

the use of the good” as listed in the EN to GRI 3(b). While both the glass and metal

“contribute[] to decorative appearance” and are “part of [the] structure,” the glass further

functions to direct and soften light through diffusion, to protect the lamp, and to shield the lamp

from view. (Id.)

This Court finds that the metal component: consists of a cap and ball of a polished brass

finish; comprises approximately one-tenth of the total visible surface area; weighs approximately

one-tenth of the entirety of the fixture; and contributes minimally to the decorative appearance

and structure. This Court finds that the glass component: consists of a translucent shade of half

an urn shape; comprises approximately nine-tenths of the total visible surface area; weighs

approximately four-fifths of the entirety of the fixture; directs and softens light through diffusion;

protects the lamp; contributes to the decorative appearance and structure; establishes the fixture’s

scale, shape and style; and defines and distinguishes this fixture from a design and marketing

perspective. Upon careful consideration of the totality of these various factors, this Court finds

Consol. Court No. 00-00061 Page 77

that the essential character of SKU 746-871 is imparted by its glass. Accordingly, this Court

holds that SKU 746-871 properly falls under HTSUS subheading 9405.10.80.

(b) SKU 492-742 (Pl. Ex. W-103)

SKU 492-742 is a “[w]all sconce consisting of a frosted, ribbed glass bowl with a metal

mounting and trim ring and a metal bottom cap, both of a polished brass finish.” (Pl. Ex. W-103

at 1.) Plaintiff produced as evidence a physical sample (Pl. Ex. 238), photograph (Pl. Ex. 177)

and SKU information packet (Pl. Ex. 103). Mr. Mintz further described this fixture’s glass as

consisting of a “semi[-]circular piece of glass.” (Trial Tr. 1391, Oct. 27.) He claimed that the

“appearance, performance and marketability of this lighting fixture are based almost enti

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