                         Slip Op. 07-67

           UNITED STATES COURT OF INTERNATIONAL TRADE

_______________________________
                               :
ROCKWELL AUTOMATION, INC.      :
f/k/a ROCKWELL AUTOMATION/     :
ALLEN-BRADLEY CO., LLC,        :
                               :
               Plaintiff,      :
                               :
          v.                   : Before: Richard K. Eaton, Judge
                               :
UNITED STATES,                 : Court No. 03-00007
                               :
               Defendant.      :
_______________________________:


                        OPINION AND ORDER

[Plaintiff’s motion for summary judgment granted, in part;
Defendant’s cross-motion for summary judgment denied.]

                                                  Dated: May 7, 2007

Neville Peterson LLP (John M. Peterson and Curtis W. Knauss), for
plaintiff.

Peter D. Keisler, Assistant Attorney General; Barbara S.
Williams, Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, United States
Department of Justice (Bruce N. Stratvert), for defendant.


     Eaton, Judge: At issue is the proper classification of

merchandise described by plaintiff Rockwell Automation, Inc.

(“plaintiff” or “Rockwell”) as short body timing relays.    Before

the court are the cross-motions for summary judgment of plaintiff

and defendant the United States (“Government”).    Jurisdiction is

had pursuant to 28 U.S.C. § 1581(a) (2000).   For the reasons set

forth below, the court grants plaintiff’s motion for summary
Court No. 03-00007                                        Page 2

judgment, in part; denies the Government’s cross-motion for

summary judgment and finds that plaintiff’s merchandise, with

respect to which plaintiff supplied samples to the court, is

properly classified as relays under the Harmonized Tariff

Schedule of the United States (“HTSUS”) Heading 8536, which

covers “[e]lectrical apparatus for switching or protecting

electrical circuits, or for making connections to or in

electrical circuits (for example, switches, relays, fuses, surge

suppressors, plugs, sockets, lamp-holders, junction boxes), for a

voltage not exceeding 1,000 V,” subject to a duty of 2.7% ad

valorem.1



                           BACKGROUND

     Plaintiff’s merchandise is solid state electrical timing

devices imported from Japan (“subject merchandise”)2 used as

components of integrated electrical systems that may include

several other electrical components.    Their function is to direct

electricity to specific apparatus at a specified time after power



     1
          Reference is made to the 1999 version of the HTSUS and
chapter notes, which were in force at the time the subject
merchandise was entered.
     2
          The parties’ briefs describe the subject merchandise in
substantially similar language. See Pl.’s Revised Mem. Supp.
Mot. Summ. J. 1-5; Def.’s Mem. Supp. Mot. Summ. J. & Opp’n Pl.’s
Mot. Summ. J. (“Def.’s Mem.”) 5 n.2. Instead of referring to the
subject merchandise as “relays,” however, the Government uses the
description “solid state timers.” Def.’s Mem. 7 n.3.
Court No. 03-00007                                        Page 3

has been applied to the entire electrical system.    The most

widely used application of these devices is in a control panel on

an assembly operation or conveyor line.

     Each timing device consists of a number of electrical parts

contained in a small six-sided, plastic box with a front dial and

a rear connection port.    Its interior parts are: a set of

moveable contact blocks; a set of stationary contact blocks; a

wound magnetic coil mounted on a stack of steel laminations; and

a circuit board containing various components, including

resistors that regulate the period of time between cycles.      See

Pl.’s Revised Mem. Supp. Mot. Summ. J. (“Pl.’s Mem.”) 1, 3, 4;

Def.’s Mem. Supp. Mot. Summ. J. & Opp’n Pl.’s Mot. Summ. J.

(“Def.’s Mem.”) 5 n.2.

     Customs has consistently classified plaintiff’s merchandise

as “[t]ime switches with clock or watch movement or with

synchronous motor: . . . Valued over $5 each,” under HTSUS

subheading 9107.00.80.    Beginning in 1999, Rockwell regularly

disputed Customs’s classification, arguing that they were

properly classifiable as relays under Heading 8536.    In July,

1999, Customs affirmed its classification of Rockwell’s

merchandise, describing the devices in the ruling as solid state

timing relays, under Heading 9107.    See HQ 962138 (July 28,

1999), reprinted in 36 Cust. Bull. & Decs. 24 (June 12, 2002),

Attach. A (“1999 Ruling”) 27, 30-31 (“[W]e find that the Bulletin
Court No. 03-00007                                         Page 4

700 solid state timing relays are classifiable under subheading

9107.00.80.”).    Thereafter, between December 9, 1999, and

February 22, 2000, Rockwell entered the subject merchandise under

HTSUS subheading 9107.00.80.     See Summons (Jan. 9, 2003).

Between November 13, 2000, and January 5, 2001, Customs

liquidated Rockwell’s entries under HTSUS subheading 9107.00.80,

as entered.    See Summons (Jan. 9, 2003).

     In January 2002, Rockwell timely filed Protest Number 3901-

01-100230, contesting Customs’s classification of the subject

merchandise.     See Protest Number 3901-01-100230.   In its

supporting papers, Rockwell reasserted its argument that the

subject merchandise was properly classifiable under HTSUS Heading

8536.    See Rockwell’s Mem. P. & A. Supp. Protest 1.

     On June 12, 2002, Customs published notice of its intention

to modify the 1999 Ruling.     See Proposed Modification of Ruling

Letter and Revocation of Treatment Relating to Tariff

Classification of Relays, 36 Cust. Bull. & Decs. 24 (June 12,

2002).    Nonetheless, on July 23, 2002, it issued HQ 964656

reaffirming those portions of the 1999 Ruling and again

classified Rockwell’s merchandise under Heading 9107.      See HQ

964656 (July 23, 2002), attached as Ex. 3 to Def.’s Mem. (“2002

Ruling”).    On August 8, 2002, Customs denied Protest Number 3901-

01-100230 with respect to the subject merchandise, stating that

its decision was based on the 1999 Ruling.     See Protest Number
Court No. 03-00007                                        Page 5

3901-01-100230.

     On January 9, 2003, plaintiff filed a summons with the

Court, commencing this action to challenge Customs’s denial.       By

its motion for summary judgment, Rockwell claims that the subject

merchandise is properly classifiable under HTSUS Heading 8536.

By its cross-motion for summary judgment, the Government urges

the court to sustain Customs’s classification of the subject

merchandise.



                         STANDARD OF REVIEW

     Summary judgment “shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.”

USCIT R. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247 (1986).    In the context of a classification action, “summary

judgment is appropriate when there is no genuine dispute as to

the underlying factual issue of exactly what the merchandise is.”

Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1365 (Fed.

Cir. 1998) (citations omitted).   Under such circumstances, all

that remains is the interpretation of the relevant tariff

provisions, which is a question of law.    See Boen Hardwood

Flooring, Inc. v. United States, 357 F.3d 1262, 1264 (Fed. Cir.
Court No. 03-00007                                        Page 6

2004).



                            DISCUSSION

I.   Identification of the Subject Merchandise

     With its motion for summary judgment, plaintiff has provided

what it claims are samples of the subject merchandise to the

court.3   The Government, however, contends that Rockwell has

failed to satisfy its burden of identifying these samples as

representative of the subject merchandise.   See Group Italglass

U.S.A., Inc. v. United States, 16 CIT 766, 767, 798 F. Supp. 729,

730 (1992) (“Italglass”).   It argues:

           Rockwell has never identified the particular
           models of timers covered by the entries in


     3
          Plaintiff provided eight samples in individual boxes
that have been numbered sequentially from one to eight. Each
sample is stamped with a variation of the phrase “timing relay.”
The samples have the following model numbers: (1) 700-HRM12TU24
Series C (bearing the description “single function timing
relay”); (2) 700-HRM12TA17 Series C (bearing the description “on-
delay timing relay”); (3) 700-HRC12TA17 Series C (bearing the
description “single function timing relay”); (4) 700-HRC12TU24
Series B (bearing the description “on delay timing relay”); (5)
700-HR52TA17 Series B (bearing the description “multi function
timing relay”); (6) 700-HR52TU24 Series B (bearing the
description “multi function timing relay”); (7) 700-HR52TA17
Series C (bearing the description “multi function timing relay”);
and (8) 700-HR52TU24 Series C (bearing the description “multi
function timing relay”).
     Although plaintiff did not import any Series C timing
relays, plaintiff insists that the “Series C models are
substantially similar to the Series B models,” and thus that “the
samples before the Court, whether Series B or Series C, correctly
reflect those short body timing relays that are contained in the
subject entries.” Letter from Curtis W. Knauss to Hon. Richard
K. Eaton of 04/05/07 at 4; see Third Pohl Aff. ¶¶ 2-3.
Court No. 03-00007                                        Page 7

          issue. Although Rockwell submitted technical
          documentation from Omron and samples
          manufactured by Omron to the Court and to the
          Government, none of this has been shown to
          relate to the specific merchandise covered by
          the specific entries at issue. That is,
          while the imported merchandise and the
          samples have Rockwell’s model numbers on
          them, and their functions may be similar,
          there is absolutely no evidence that the
          electronics inside are the same or that their
          functions are the same.

Def.’s Mem. 10.   The crux of the Government’s claim is that

plaintiff has not offered evidence that the internal electronics

and functioning of the supplied samples, which were manufactured

by Omron Corporation, are the same as the electronics and

functioning of the entered merchandise, which was manufactured by

Fuji Electric Co. Ltd.   See Def.’s Resp. Pl.’s Statement of

Material Facts Not in Dispute ¶¶ 6, 7 & 8; Def.’s Reply Br. Supp.

Mot. Summ. J. & Opp’n Pl.’s Resp. 3-4.

     The Government correctly points out that plaintiff “has the

burden of demonstrating exactly what merchandise the Court is

being called upon to classify.”    Def.’s Mem. 9; Italglass, 16 CIT

at 767, 798 F. Supp. at 730.   An examination of the case law

reveals how this burden is to be met.

     In Italglass, a case challenging the denial of a protest,

the plaintiff moved for summary judgment but supplied “no

affidavit or other evidence to identify the disputed items

actually imported under the entries” in the case.    Italglass, 16

CIT at 767, 798 F. Supp. at 730.   The court stated that “[u]nless
Court No. 03-00007                                        Page 8

stipulated between the parties, plaintiff has the burden of

submitting evidence on its motion identifying the specific items

of merchandise in the particular entries in the case that are

claimed to have been incorrectly classified by Customs.”      Id.,

798 F. Supp. at 730.     The plaintiff having failed to do so, the

court denied its motion for summary judgment.4

     When an employee affidavit has been presented, however, this

Court has upheld its use to identify imported merchandise.       In

E.T.I.C., Inc. v. United States, 26 CIT 1293 (2002) (not reported

in the Federal Supplement), the plaintiff challenged the

classification of a tomato product that had previously been the

subject of a different action.     The plaintiff supported its

motion for summary judgment with the affidavit of one of its

employees, who testified that the tomato product at issue was

“identical in all respects to that at issue in” the previous

case.    Id. at 1293.   The defendant submitted an opposing

affidavit by a Customs import specialist, who had not examined

the product, but relied solely on the invoice descriptions.        Id.


     4
          The Italglass Court permitted the parties to engage in
further discovery and to submit supplemental briefing and
evidence with respect to plaintiff’s motion for summary judgment.
In a later stage of the case, the Court noted that the
identification issue had been obviated by the plaintiff’s
supplemental filings and observed that “identification of the
subject merchandise under the entries and commercial invoices can
be determined with reference to the verbal descriptions, style
numbers, and photographs in plaintiff’s catalog.” Group Italglass
U.S.A., Inc. v. United States, 17 CIT 226, 227 (1993) (not
reported in the Federal Supplement).
Court No. 03-00007                                        Page 9

at 1293-94.   Finding the E.T.I.C. employee’s affidavit

persuasive, the Court granted summary judgment for plaintiff.

Id. at 1294 (“The court concludes that the ‘heavy juice’ referred

to in the Malpica entries is equivalent to the ‘puree’ mentioned

in [Orlando Food Corp. v. United States, 140 F.3d 1437, 1439

(Fed. Cir. 1998)], because an E.T.I.C. employee with knowledge

has sworn that the products are the same.”).

     Here, unlike the plaintiff in Italglass, Rockwell has

submitted the Pohl affidavits5 “to identify the disputed items

actually imported under the entries in this case . . . .”

Italglass, 16 CIT at 767, 798 F. Supp. at 730.    Mr. Pohl is a

Senior Project Engineer at Rockwell, whose experience includes

“providing technical support and guidance to customers,

suppliers, professional organizations, and other technical

personnel” with respect to “relays and timing relays produced and

sold for [Rockwell].”   First Pohl Aff. ¶ 1.   Thus, like the

employee of the plaintiff in E.T.I.C., Mr. Pohl is familiar with

the product at issue and his sworn affidavit, which states that

the Fuji-produced short body timing relays “are identical in all


     5
          Plaintiff has submitted the “Affirmation of Randy Pohl”
as Exhibit C to its revised motion for summary judgment; the
“Second Affirmation of Randy Pohl” as an attachment to
Plaintiff’s Response to Defendant’s Motion for Summary Judgment
and Reply in Support of Plaintiff’s Motion for Summary Judgment;
and the “Third Affirmation of Randy Pohl” as an attachment to its
letter to the court of April 5, 2007. Mr. Pohl’s sworn
statements shall be referred to as “First Pohl Affidavit,”
“Second Pohl Affidavit” and “Third Pohl Affidavit,” respectively.
Court No. 03-00007                                      Page 10

material respects to the Omron short body timing relays that have

been submitted to the Court as samples,” supports Rockwell’s

motion.   Second Pohl Aff. ¶ 16.

     The Government insists, however, that plaintiff has failed

to sufficiently identify the product contained in the entries.

See Def.’s Mem. 10-11 (citing Saab v. United States, 434 F.3d

1359, 1369 (Fed. Cir. 2006), for the proposition that “a non-

movant is required to provide opposing evidence under Rule 56(e)

only if the moving party has provided evidence sufficient, if

unopposed, to prevail as a matter of law”).

     It is, of course, true that on a motion for summary

judgment, the movant has the burden of coming forth with evidence

to support the factual allegations in its claims.   See Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (“[A] party seeking

summary judgment always bears the initial responsibility of

informing the district court of the basis for its motion, and

identifying those portions of the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of

a genuine issue of material fact.”) (internal quotation marks

omitted).   The court finds that plaintiff has done so with

respect to the issue of identification of some, but not all of

the subject entries.

     A review of the First Pohl Affidavit reveals that Mr. Pohl
Court No. 03-00007                                      Page 11

identified some of Rockwell’s merchandise by model number: “The

short body timing relays imported in the subject entries are

listed by Rockwell under the following model numbers: 700-

HR52TA17 Series C; 700-HR52TU24 Series C; 700HRM12TU24 Series C;

700-HR52TA17 Series B; 700-HR52TU24 Series B; 700-HRC12TA17

Series C; 700-HRC12TU24 Series B; and 700-HRM12TA17 Series [C].”

First Pohl Aff. ¶ 3; see also Third Pohl Aff. ¶ 4 (correcting a

typographical error).   These model numbers match the model

numbers of the samples provided to the court; the samples’ model

numbers, in turn, correspond to certain of the model numbers that

appear in the entry documentation.6   Compare Invoice No. L68842

(Jan. 13, 2000), attached to Entry No. 110-0417823-1 and Invoice

No. F78713 (Feb. 17, 2000), attached to Entry No. 110-0418751-3

with First Pohl Aff. ¶ 3.

     Based on the forgoing, the court finds that Rockwell has

sufficiently identified the merchandise covered by the entries

with respect to which it has provided samples and model numbers



     6
          A comparison of the sample model numbers and the model
numbers of the merchandise listed in the entry documents
indicates that plaintiff did not provide samples of all models
covered by the entries. For example, plaintiff did not provide a
sample of 700-HX86SA17 or 700-HX86SU24, which were imported under
entry numbers 110 0417823-1 and 110 0418751-3. Moreover, Mr.
Pohl’s affidavit identifies the eight samples provided to the
court as identical in all material respects to the imported
merchandise, but makes no such statement with respect to imported
merchandise for which no sample was provided. As such, the
court’s decision applies only to the merchandise for which a
sample was provided to the court.
Court No. 03-00007                                        Page 12

corresponding to the entered merchandise.   It has thus satisfied

its burden of coming forth with evidence to support its factual

allegations with respect to identification of that merchandise.

     Since plaintiff, as the movant, has met its burden with

respect to the merchandise for which it produced samples, Rule

56(e) of the rules of this Court provides that the Government, as

the adverse party, “may not rest upon the mere allegations or

denials of the adverse party’s pleading,” but rather

          the adverse party’s pleading, by affidavits
          or as otherwise provided in this rule, must
          set forth specific facts showing that there
          is a genuine issue for trial. If the adverse
          party does not so respond, summary judgment,
          if appropriate, shall be entered against the
          adverse party.

USCIT R. 56(e); see also United States v. Rockwell Automation,

Inc., 30 CIT __, __, 462 F. Supp. 2d 1243, 1252 (2006) (where

movant has supported its motion as Rule 56 requires, Rule 56(e)

requires non-movant to come forward with opposing evidence).    The

Government having failed to submit any opposing evidence

demonstrating a genuine issue for trial with respect to

identification of that portion of the subject merchandise for

which the model numbers of the provided samples match the model

numbers of the entered merchandise, the court grants partial

summary judgment for plaintiff on this issue.
Court No. 03-00007                                         Page 13

II.   Classification of the Subject Merchandise

      The court now turns to the classification of the subject

merchandise itself.    Here, the primary question is whether the

subject merchandise has a “display or a system to which a

mechanical display can be incorporated.”    As previously noted,

Customs denied plaintiff’s protest and classified the subject

merchandise under Heading 9107 of the HTSUS.    This heading reads:

           Time switches with clock or watch movement or
           with synchronous motor . . . .

HTSUS 9107.   The terms “clock movements” and “watch movements”

are defined in the Additional U.S. Notes and the Notes to Chapter

91, respectively.    “Clock movements” and “watch movements” are

defined as

           devices [with a] system capable of
           determining intervals of time, with a display
           or a system to which a mechanical display can
           be incorporated.

HTSUS, Ch. 91, Additional U.S. Note 1(d); HTSUS, Ch. 91, Note 3

(emphasis added).    It is undisputed that the merchandise has a

system capable of determining intervals of time.7   It is also


      7
          As described by Mr. Pohl, “the short body timing relays
measure a certain time interval and then activate or de-activate
a subcircuit.” First Pohl Aff. ¶ 5. The user sets the length of
the delay period, which is

           accomplished by the resistor, capacitator,
           and oscillation timing circuitry. The
           oscillation circuit produces calibrated
           pulses which are counted by the resistor and
           capacitator circuit. After the short body
                                                    (continued...)
Court No. 03-00007                                         Page 14

undisputed that the merchandise does not have a mechanical

display.     See Second Pohl Aff. ¶ 9; First Costello Decl. ¶ 27.

Thus, in order for Customs’s classification to be sustained the

subject merchandise must have “a system to which a mechanical

display can be incorporated.”

     The Government insists that Customs’s classification under

Heading 9107 is correct, and that Customs’s 1999 and 2002 rulings

are entitled to deference in accordance with the principles set

forth in Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)

(setting forth factors which give a Customs ruling “power to

persuade”).     See Def.’s Mem. 12 (“HQ 962138 and HQ 964656 are

entitled to deference.”) (citing United States v. Mead Corp., 533

U.S. 218 (2001)).     It argues that it is entitled to prevail in

this action as a matter of law because, among other things, the

subject merchandise has a clock or watch movement, which although

having no mechanical display, has a system capable of

incorporating a display.

     For its part, Rockwell argues that Customs’s classification



     7
         (...continued)
             time delay relay receives a trigger signal
             the timing circuitry begins counting pulses
             until the total count value from external
             settings is achieved.

First Pohl Aff. ¶ 10. See also First Costello Decl. ¶ 23 (“A
Rockwell Timer electronically measures [an] interval of time by
using an oscillator to generate specific very small intervals of
time . . . .”).
Court No. 03-00007                                        Page 15

under Heading 9107 is incorrect and that the subject merchandise

is correctly classified under Heading 8536.    Rockwell contends

that it is entitled to summary judgment because the subject

merchandise does not have a system to which a mechanical display

can be incorporated.    See Pl.’s Mem. 15.   In addition, plaintiff

argues that the 2002 Ruling is not entitled to Skidmore

deference.   Pl.’s Mem. 19 (“[T]he [2002 Ruling] summarily

concluded that the short body [timing relays] at issue ‘ha[d] a

system to which a mechanical display can be incorporated,’ which

is an essential element in classification under Heading 9107,

HTSUS.”).

     A.     Skidmore Deference

     The court first addresses whether Customs’s 1999 and 2002

rulings are entitled to Skidmore deference.     When determining the

degree of deference to be accorded to a Customs ruling, the

factors to be considered are “the thoroughness evident in the

classification ruling; the validity of the reasoning that led to

the classification; consistency of the classification with

earlier and later pronouncements; the formality with which the

particular ruling was established; and other factors that supply

a ‘power to persuade.’”    Warner-Lambert Co. v. United States, 407

F.3d 1207, 1209 (Fed. Cir. 2005) (quoting Skidmore, 323 U.S. at

140).

     The court concludes that those portions of Customs’s 1999
Court No. 03-00007                                        Page 16

and 2002 rulings finding that plaintiff’s merchandise has clock

or watch movements are not entitled to Skidmore deference because

they are unpersuasive on the question of whether the merchandise

has “a system to which a mechanical display can be incorporated.”

HTSUS, Ch. 91, Additional U.S. Note 1(d); HTSUS, Ch. 91, Note 3.

     The 1999 Ruling, on which Customs based its denial of

plaintiff’s protest, is not persuasive on this issue.   The ruling

sets forth the pertinent provisions of the HTSUS and the

explanatory notes, but it does not contain any discussion or

finding with respect to whether the merchandise has a “display or

a system to which a mechanical display can be incorporated.”

     Customs’s 2002 Ruling is no more persuasive.   It quotes a

report prepared by the Customs laboratory that analyzed

plaintiff’s merchandise.   The report stated that each of the

relays

          has electronic circuitry that performs the
          timing functions. Each of these circuits
          contains a component that is “. . . capable
          of determining intervals of time . . .” The
          time delay for [one of the relays under
          consideration] is factory set, while it can
          be user-changed in [other relays under
          consideration]. In our opinion, [all of the
          above-mentioned relays] contain a watch or
          clock movement as described in Note 3 or
          Additional U.S. Note 1(d) to HTSUS Chapter
          91. We believe that they are “time switches”
          of HTSUS Heading 9107.

HQ 964656 at 4.   Thus, the report addressed only one of the

requirements of a clock or watch movement, i.e., whether the
Court No. 03-00007                                         Page 17

subject merchandise has a system capable of determining intervals

of time.   It did not address the requirement that the merchandise

must have a display or a system to which a mechanical display can

be incorporated.

     In the 2002 Ruling itself, Customs devotes a single sentence

to the latter requirement: “Our discussions with the Customs

Laboratory indicated that [certain of the components under

consideration] have a system to which a mechanical display can be

incorporated.”   HQ 965646 at 4 (citing definitions of clock

movements and watch movements).   This conclusion is not

convincing since Customs does not provide any reasoning to

support it.   Rather, Customs’s conclusion is based on

“discussions” with the laboratory, which were not reduced to

writing.

     Even though Customs has consistently classified plaintiff’s

merchandise under Heading 9107, it has failed to address the

requirement of a “display or system to which a mechanical display

can be incorporated” in its rulings.   Thus, the court concludes

that Customs’s 1999 and 2002 rulings do not contain valid

reasoning with respect to, or a thorough consideration of, that

issue.   They are therefore not entitled to Skidmore deference.
Court No. 03-00007                                         Page 18

     B.    Classification Under HTSUS Heading 9107

     The court next turns to the issue of whether the subject

merchandise has a system to which a mechanical display can be

incorporated, such that it can be said to have a “clock or watch

movement,” under Heading 9107.

     Review of Customs classification decisions involves a dual

inquiry.   The first question is the meaning of the HTSUS tariff

terms at issue, which is a question of law.   The second question

is of a factual nature and requires the court to determine under

which HTSUS provision the subject merchandise falls.     See Bausch

& Lomb, Inc., 148 F.3d at 1365 (citation omitted).     A statutory

presumption of correctness applies to the factual component of

Customs’s classification decisions, not the legal issue of the

meaning of tariff terms.   See 28 U.S.C. § 2639(a)(1);8 Universal

Elecs., Inc. v. United States, 112 F.3d 488, 492 (Fed. Cir.



     8
           Subsection 2639(a)(1) provides:

           Except as provided in paragraph (2) of this
           subsection [providing for civil actions
           commenced under 28 U.S.C. ¶ 1582], in any
           civil action commenced in the Court of
           International Trade under section 515, 516,
           or 516A of the Tariff 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.

28 U.S.C. § 2639(a)(1).
Court No. 03-00007                                        Page 19

1997).   The burden lies with plaintiff to demonstrate that

Customs’s classification is incorrect.    Universal Elecs., 112

F.3d at 492 (“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.”).

     In determining the proper classification of merchandise, the

General Rules of Interpretation (“GRI”) govern.     See Carl Zeiss,

Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999)

(citation omitted) (“The HTSUS General Rules of

Interpretation . . . and the Additional U.S. Rules of

Interpretation . . . govern the proper classification of all

merchandise and are applied in numerical order.”).    The court

begins with the language of the HTSUS headings, section and

chapter notes, as the GRI require.    See GRI 1.   If a tariff term

is not defined by the statute or the legislative history, its

correct meaning is its common, or commercial, meaning.     See

Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356

(Fed. Cir. 2001).    “To ascertain the common meaning of a term, a

court may consult ‘dictionaries, scientific authorities, and

other reliable information sources’ and ‘lexicographic and other

materials.’”    Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v.

United States, 673 F.2d 1268, 1271 (C.C.P.A. 1982); Simod Am.
Court No. 03-00007                                        Page 20

Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)).

Finally, the explanatory notes, while not binding law, offer

guidance as to how tariff terms are to be interpreted.    See Len-

Ron Mfg. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir.

2003) (noting explanatory notes are “intended to clarify the

scope of HTSUS subheadings and to offer guidance in their

interpretation”).

     As noted, in order for Customs’s classification to be

sustained, the subject merchandise must have a system to which a

mechanical display can be incorporated.   The Government contends

that it has such a system and cites Dr. Richard Costello’s

declaration in support of its position.   In his declaration, Dr.

Costello refers to a diagram of the subject merchandise submitted

as an exhibit to plaintiff’s memorandum in support of its motion.

Dr. Costello asserts that “the essential blocks or components of

a digital clock movement or a digital timer are: (1) an

oscillator, and (2) a counter.”   First Costello Decl. ¶ 25.   He

then states that the oscillator and counter blocks shown in the

diagram

          can be interfaced by a suitable driver
          circuitry to an electrically operated
          mechanical display, such as a watch or clock
          hand . . . . Such a display would be
          interfaced to the counter contained within
          the Rockwell timer under discussion, to
          provide a mechanical display, if desired . .
          . . In a practical sense, constructing such
          a mechanical time display would be rather
          involved and somewhat complicated, but
Court No. 03-00007                                        Page 21

          conceptually, or theoretically, it is
          possible. It could be built.

First Costello Decl. ¶¶ 26-27 (emphasis added).   The Government

maintains that the statute requires that the incorporation of a

mechanical display be possible, i.e., that it can be done - not

that it is commercially practical to do so.   Def.’s Supplemental

Br. 1-2 (“Note 3 [defining “watch movements”] does not state that

incorporating a display has to be practical or commercially

feasible; it has to be able to be done.”).

     Plaintiff, on the other hand, argues that the subject

merchandise does not have a system to which a mechanical display

can be incorporated and that the HTSUS contemplates that the

ability to incorporate a mechanical display must be more than a

mere theoretical possibility.    Plaintiff argues that Congress’s

use of the word “incorporated”

          implies that an article has been designed and
          manufactured to accept . . . a display system
          with a specific connection interface, not
          some Rube Goldberg, ad hoc contraption
          developed after production. . . . Clearly,
          the theoretical possibility posited by the
          government does not relate to the condition
          of the [short body timing relay] as imported,
          but merely constitutes speculation as to some
          post-importation, post-production
          reconfiguration of the product.

Pl.’s Supplemental Br. 2.

     The court concludes that the subject merchandise does not

have “a system to which a mechanical display can be

incorporated.”   In reaching this conclusion, the court agrees
Court No. 03-00007                                      Page 22

with plaintiff that the word “incorporated” when combined with

the word “system” compels the rejection of Customs’s

classification.   The word “system” means “a complex unity formed

of many often diverse parts . . . serving a common purpose.”

Webster’s Third New International Dictionary 2322 (2002).

Applied to the words of the HTSUS, the purpose of the “system” at

issue here is to facilitate the incorporation of a display into

the subject merchandise.   That is, to be classified under Heading

9107 plaintiff’s merchandise must have a system whose purpose is

to allow the incorporation of a display.9

     Moreover, the merchandise must have such a system at the

time of importation.   See United States v. Citroen, 223 U.S. 407,

414-15 (1911) (“The rule is well established that in order to

produce uniformity in the imposition of duties, 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.”) (internal quotation marks omitted); Mita

Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir.

1994).   As each expert makes clear, the subject merchandise does



     9
          Reference to other language in the notes defining
“clock movements” (Additional U.S. Note 1(d)) and “watch
movements” (Note 3) supports this conclusion. For example,
Additional U.S. Note 1(d) states that clock movements are
“devices regulated by . . . any other system capable of
determining intervals of time.” HTSUS, Ch. 91, Additional U.S.
Note 1(d) (emphasis added). In other words, this system must
have as its purpose the capacity to measure time.
Court No. 03-00007                                       Page 23

not satisfy this requirement.   See First Costello Decl. ¶ 27 (“In

a practical sense, constructing such a mechanical time display

would be rather involved and somewhat complicated, but

conceptually, or theoretically, it is possible.”); Second Pohl

Aff. ¶¶ 9 (likening the “scenario of incorporating a display into

the subject timing relays [described by Dr. Costello in his

declaration] to taking a radio, [and] modifying the circuitry by

adding a display to make a television”); 10 (“[T]here is no

system to which a mechanical display can be

incorporated . . . .”).   It is therefore apparent that, at the

time of importation, the subject merchandise had no system whose

purpose was to facilitate the addition of a display.   Therefore,

the subject merchandise does not have a “clock or watch movement”

and is not properly classifiable under Heading 9107.

     C.   Classification Under HTSUS Heading 8536

     Plaintiff has overcome its burden of demonstrating that

Customs’s classification is incorrect.   Thus, in accordance with

the holding in Jarvis Clark Co. v. United States, 733 F.2d 873,

878 (Fed. Cir. 1984), the court now turns to the question of

whether Heading 8536, or another provision of the HTSUS, provides

the correct classification of the subject merchandise.   The court

concludes that the merchandise is properly classifiable under

HTSUS Heading 8536.

     Applying GRI 1, the court must determine the correct
Court No. 03-00007                                        Page 24

classification “according to the terms of the headings and any

relative section or chapter notes . . . .”   GRI 1.   Heading 8536

covers

          [e]lectrical apparatus for switching or
          protecting electrical circuits, or for making
          connections to or in electrical circuits (for
          example, switches, relays, fuses, surge
          suppressors, plugs, sockets, lamp-holders,
          junction boxes), for a voltage not exceeding
          1,000 V . . . .10

Although the terms of Heading 8536 are not defined in the section

or chapter notes, the explanatory notes, a recognized, albeit

non-binding, guide to interpreting tariff terms, provide:

          Relays are electrical devices by means of
          which the circuit is automatically controlled
          by a change in the same or another circuit.
          They are used, for example, in
          telecommunication apparatus, road or rail
          [signaling] apparatus, for the control or
          protection of machine-tools, etc.
          The various types can be distinguished by,
          for example:

          (1) The electrical means of control used:
          electromagnetic relays, permanent magnet
          relays, thermo-electric relays, induction
          relays, electro-static relays, photoelectric
          relays, electronic relays, etc.

          (2) The predetermined conditions on which
          they operate: maximum current relays, maximum
          or minimum voltage relays, differential
          relays, fast acting cut out relays, time
          delay relays, etc.

4 World Customs Org., Harmonized Commodity Description and Coding



     10
          Because there is no dispute that the merchandise does
not exceed 1,000 volts, this aspect of Heading 8536 is satisfied.
Court No. 03-00007                                        Page 25

System Explanatory Notes (“Explanatory Notes”) § 85.36(I)(C), at

1504 (1998); see also Webster’s Third New International

Dictionary 1917 (2002) (defining relay as “an electromagnetic

device for remote or automatic control that is actuated by a

variation in conditions of an electric circuit and that operates

in turn other devices (as switches, circuit breakers) in the same

or a different circuit”).

     The undisputed facts together with the court’s observations

lead to the conclusion that the subject merchandise meets the

definition of a relay.   See Dolly, Inc. v. United States, 27 CIT

1597, 1609, 293 F. Supp. 2d 1340, 1350 (2003).   That is to say,

the subject merchandise is an “electrical device[] by means of

which [a] circuit is automatically controlled by a change in the

same or another circuit.”   Explanatory Notes § 85.36(I)(C), at

1504.   As described by the parties and noted in the background

section, supra, the subject merchandise is used in a control

panel on an assembly operation or conveyor line.   When electrical

power has been applied to the electrical system of which the

subject merchandise is a component, the subject merchandise

directs electrical power to specific apparatus at the rate

specified by the user.   The internal components of the subject

merchandise include stationary and moveable parts to which

electric power is applied in order to complete a circuit.

Heading 8536 thus accurately describes the use and function of
Court No. 03-00007                                          Page 26

the merchandise at issue.    Furthermore, it specifically

contemplates, eo nomine,11 the classification of relays

thereunder, i.e., relays that are used to make connections to

electrical circuits.    The subject merchandise is thus properly

classifiable as a relay under HTSUS Heading 8536.



                             CONCLUSION

     The court finds that the subject merchandise, with respect

to which plaintiff supplied samples to the court, i.e., those

whose model numbers match the model numbers of the imported

merchandise, is properly classifiable under HTSUS Heading 8536.

Summary judgment is granted in favor of Rockwell as to that

merchandise.    The Government’s cross-motion is denied.    The

parties are directed to confer and jointly submit, no later than

May 17, 2007:

     (1) a proposed Judgment, specifically identifying the

merchandise covered by this opinion; and




     11
          Eo nomine means “[b]y or in that name.” Black’s Law
Dictionary 575 (8th ed. 2004). “[A]n eo nomine provision . . .
describes a commodity by a specific name, usually one common in
commerce. Absent limiting language or indicia of contrary
legislative intent, such a provision covers all forms of the
article.” Nidec Corp. v. United States, 68 F.3d 1333, 1336 (Fed.
Cir. 1995).
Court No. 03-00007                                     Page 27

     (2) a proposed Scheduling Order for trial with respect to

the remaining merchandise.




                                        /s/ Richard K. Eaton
                                            Richard K. Eaton

Dated:    May 7, 2007
          New York, New York
