from the United States Court of International Trade in No.
1:11-cv-00225-TCS, Chief Judge Timothy C. Stanceu.
H. Sheppard, Meeks, Sheppard, Leo & Pills-bury,
Fairfield, CT, argued for plaintiff-appellant.
Hardeep Kaur Josan, International Trade Field Office,
Commercial Litigation Branch, Civil Division, United States
Department of Justice, New York, NY, argued for
defendant-appellee. Also represented by Amy Rubin, Jeanne
Davidson, Chad A. Readler.
Michael Peterson, Neville Peterson LLP, New York, NY, for
amici curiae Target General Merchandise Inc.,
Accent-Fairchild Group Inc., All Season Imports, Inc.,
American Lighting Inc., The Gordon Companies, Inc.,
Illumination International LLC, Imagine Nation Books, Ltd.,
Lamrite West Inc., LED Power Inc., Precision Lighting &
Transformer, Inc., RDA Lighting Inc., Service Lighting &
Electrical Supplies, Inc., U.S. LED, Ltd. Also represented by
Richard F. O'Neill, Russell Andrew Semmel.
Lourie, O'Malley, and Chen, Circuit Judges.
O'Malley, Circuit Judge.
Gerson Company appeals a decision of the United States Court
of International Trade ("Trade Court") granting
summary judgment in favor of the government. See Gerson
Co. v. United States, 254 F.Supp.3d 1271 (Ct. Int'l
Trade 2017). In that decision, the court classified
Gerson's imported light-emitting diode ("LED")
candles under subheading 9405.40.80 of the Harmonized Tariff
Schedule of the United States ("HTSUS")-which
covers certain "[l]amps . . . not elsewhere specified or
included"- rather than under subheading 8543.70.70-which
covers "[e]lectrical machines and apparatus,"
including "[e]lectric luminescent lamps." We agree
with the Trade Court's classification, and, accordingly,
imported merchandise consists of finished decorative candle
and tea light lamps made of plastic and/or wax. The lamps are
designed to resemble ordinary candles, such as votive,
pillar, taper, or tea light candles. Unlike ordinary candles,
however-which generate light by using a wick to vaporize
wax-Gerson's candles use battery-operated LEDs. Gerson
does not dispute that its candles serve both decorative and
illuminative functions. See Oral Arg. at 1:10-25,
Gerson Co. v. United States (No. 2018-1011),
January and October 2009, Gerson imported twenty-seven
entries of its candles through the Port of Kansas City,
Missouri. U.S. Customs and Border Protection
("Customs") liquidated the merchandise under HTSUS
subheading 9405.40.80, which imposes a duty rate of 3.9%
ad valorem. That provision reads:
9405 Lamps and lighting fittings including searchlights and
spotlights and parts thereof, not elsewhere specified or
included; illuminated signs, illuminated nameplates and the
like, having a permanently fixed light source, and parts
thereof not elsewhere specified or included:
40 Other electric lamps and lighting fittings:
objected to Customs' classification in four
administrative protests, arguing that its candles should have
been classified under subheading 8543.70.70, which imposes a
duty rate of 2% ad valorem. That provision reads:
8543 Electrical machines and apparatus, having individual
functions, not specified or included elsewhere in this
chapter; parts thereof:
70 Other machines and apparatus:
70 Electric luminescent ...