*1 Roh, Firm, Park Chong H. Law Los CA,
Angeles, Defendant-Appellee. for O’Shea,
Michael A. Hunton & Williams
LLP, DC, Washington, Plaintiff-Appel-
lant.
ORDER
The appellant having respond failed to order,
to this court’s June
It Is Ordered That: is dismissed. TECHNOLOGY, LTD.,
LA CROSSE
Plaintiff-Appellant, STATES, Defendant-Appellee.
UNITED
No. 2012-1370. Appeals,
United States Court of
Federal Circuit.
July *3 Rucker, Randolph
William Drinker Bid- LLP, dle & Reath of Chicago, Illinois, argued for plaintiff-appellant. Rubin, Amy M. Attorney, Trial Civil Di- vision, Litigation Branch, Commercial De- partment Justice, York, of New New York, argued for defendant-appellee. With her on the brief were Stuart F. De- lery, Acting Attorney General, Assistant Davidson, Director, Jeanne E. and Bar- Williams, bara Attorney S. in Charge, In- Office, ternational Trade Field of New York. Of counsel on the brief was Chi S. Choy, Counsel, Office of Assistant Chief United States Customs and Border Protec- tion, York, of New New York. NEWMAN, BRYSON, Before O’MALLEY, Judges. Circuit O’MALLEY, Judge. Circuit La Plaintiff-Appellant Crosse Technolo- (“La Crosse”) gy, disputes Ltd. the Har- Tariff monized Schedule the United (“HTSUS”) States classification of several imported models of electronic devices that display atmospheric measure and weather conditions. The devices also dis- play Upon the time and date. liquidation, U.S. Customs Border Protection (“Customs”) subject all classified de- vices as “other clocks” under HTSUS sub- challenged 9105.91.40. La Crosse classification, Customs’ and the United States Court of International Trade reclas- many sified imported devices. The subject trade court divided the devices into general categories: three Weather Station (‘Os icons, models, image boy series of and Clock Professional outlook’) indicate which The trade court classified car whose clothes models. under HTSUS predicted.”1 La Crosse type Weather Station of weather is (which includes subheading Tech., 9025.80.10 F.Supp.2d Ltd. v. United thermometers, barometers, hygrometers, 2012). (Ct. 1349, 1351-52 Int’l Trade instruments), of these and combinations all the de- initially Customs subheading the Professional issue as “other clocks” vices at (which certain “meteo- includes 9015.80.80 F.Supp.2d 9105.91.40. See appliances”), rological ... challenged La Crosse Customs’ models under and the Clock the United States Court clocks). (which certain includes 9105.91.40 Trade, arti- arguing that the International challenges the trade appeal, On *4 “more than clocks.” Id. at 1355 cles were a devices classification of number of court’s omitted). (internal Ac- quotation marks categorized the as Weather Station court Crosse, La at issue cording to the devices below, For reasons and Clock models. the to do far more appeal on were constructed appeal models at issue on we find that the day time of and should than indicate the sub- properly classified HTSUS ap- meteorological have classified as been Thus, the heading 9015.80.80. we reverse Heading be- pliances under HTSUS International judgment of the Court of ability their forecast the cause of issue Trade to the models at that Id. La contended weather. Crosse reliqui- and order Customs to appeal subject prima merchandise was the facie in their models accordance with date these using Heading 9015 classifiable under subheading classification under 9015.80.80. (“GRI”) 1, Interpretation Rule of General Background is imported an article applies which “when I. by single in whole a classifica- described devices imports electronic heading subheading” tion or HTSUS. atmospheric (e.g., conditions that measure Prods., LLC v. United CamelBak temperature, temperature, outdoor indoor (Fed.Cir.2011). The 649 F.3d humidity) and the display measured and/or hand, argued government, on the other informa alоngside temporal information pursuant to GRI 1 was that classification date). the All the (e.g., tion time and inappropriate because the devices at issue at issue on include wireless devices that were not de- composite goods were instruments that measure outdoor condi a or by single scribed containing tions a unit instru base at subheading. F.Supp.2d that ments measure indoor conditions. the clas- According government, 1356. a LCD display, The devices also contain an 3(b) appro- pursuant sification to GRI was air and a prеssure, to measure barometer properly the not priate, and devices were microprocessor The uses microprocessor. using classified under analyze historical algorithm an barome parties cross- analysis. Id. filed provide weather tric measurements summary the judgment, motions The forecast indicates “whether forecast. granted-in-part trade court denied-in- improve will or deteriorate” weather “ arrow, ‘tendency’ parties’ each of motions. displayed part as a is expectеd to worse or re- Tendency air weather is become indicate whether the arrows (which images of poor). include pressure increasing main Forecast icons is indicates clouds, sun, partially sun improve concealed expected or remain weather (which decreasing with rain. good) indicates that clouds or govern- with the Id. These agreed capabilities, The trade court additional in the applies ment that “GRI 3 because the sub- view, court’s appropriate made it to classi- ject prima merchandise is classifiable fy the Professional models as meteorologi- facie heading.” under more than one Id. The cal equipment court the devices at determined that 9015.80.80,HTSUS. Id. composite goods properly
were were In classifying models, Clock GRI pursuant to which bas- trade court focused on the “numerous and “ es classification of on the ‘material predominant clock-related functions and them component gives their es- clock-related marketing.” Id. The ” court sential character.’ (quoting Id. 1356-58 noted that La Crosse described these mod- 3(b)). purpose For the of classifying els as projection atomic or clocks mar- goods, divided the court the devices keting materials. Id. The trade court also general categories: into three Professional that, observed although the Clock models (which appeal), are not issue on display weather information (including a Weather Station and Clock mod- forecast), the Clock “display[ed] els. court Id. at 1352. The then examined time larger information in type size than “primary functionality and marketing” weather Id. Consequently, information.” category each to deter- the court determined that Clock mod- mine their essential character. Id. at *5 els properly were classified under sub- 1359. heading at 9105.91.40. Id. 1362. Stations, With to the Weather the court noted that La Crosse marketed timely Crosse appealed. We have the Temperature devices as ‘Wireless Sta- jurisdiction pursuant 28 U.S.C. tions” or Wireless Weather Stations” and 1295(a)(5). § determined that the a “ha[d] con- centration of weather related features Appeal Arguments II. on predominate
which in number over clock appeal, On challenges the functions.” Id. at Concluding 1360. Court of International Trade’s classifica- the ability devices’ was forecasting “impre- tion aof number of Clock and Weather cise and laek[ed] the character meteoro- models, Station trade court logical 9015, equipment” under subheadings placed under 9105.91.40 and the court classified the Weather Stations 9025.80.10,respectively.2 According to La as combination instruments under sub- appeal the models at issue on heading at 9025.80.10. Id. 1361. have pursuant should been classified Regarding models, the Professional 1 “meteorological GRI as ... court determined essential “[t]he character 9015.80.80, appliances” under HTSUS. ... given is also by their weather-related however, government, contends that they functions overwhelmingly because the trade court properly classified the predominate over the clock functions.” Id. 3(b). pursuant to GRI The Professional models included the fea- tures of the Station Weather but Legal III. Standards sensors, rain сontained “wind and as grant well as the “We review the of sum ability to download weather data to a computer analysis.” mary judgment by for further Court of Interna- - 9033, -9043, -9055, -9075, -9096,-9115, 2. The models at are WS- - -7159, 7014,-7042, -7049, -7211, -7394, 9118, -9119, -9520, -9611, -9151, -9600, - 8025, -8035, -8157,-9020, -9025, -9031, WT5130, -5432, and-5442. 1358 States, 21 Am. v. United Copystar Camel- Mita without deference.”
tional Trade
(Fed.Cir.1994).
1079, 1082
Bak,
ultimate
F.3d
at 1364. “The
649 F.3d
imported
particular
to whether
issue as
1,
According to GRI
“classifica
an
under
has been classified
merchandise
according
shall
determined
tion
be
is
question
a
provision
tariff
appropriate
any
relative
headings
terms
Marcel
to de novо review.”
subject
law
chapter
apply
or
notes.” “We
GRI
section
States,
1054,
11 F.3d
Watch Co. United
interpretation,
a
1 as
substantive rule
(Fed.Cir.1993). Tariff classification
imported
article is de
when
two
generally
involves
by
single
in whole
a
classification
scribed
“(1)
mean-
steps:
ascertaining
proper
single
then that
subheading,
pro-
the tariff
ing
specific
terms within
succeeding
applies,
(2)
determining whether
vision and
CamelBak, 649
inoperative.”
GRIs
within the de-
merchandise
issue comes
headings
sub
F.3d
1364. HTSUS
scription
properly
con-
of such terms
headings
by spe
article
a
that describe an
a
step presents
strued.”
Id. The first
as eo
cific name are referred to
nomine
law,
novo.
question of
which we review de
are “in char
provisions.
goods
Id. When
presents
question
a
step
Id. The second
something
or function
other than as
acter
fact,
for clear error.
Id.
which we review
specific statutory provi
described
when, al-
finding
clearly
“A
is
erroneous
or more diversi
sion—either more limited
it, the
though
support
there
evidence
significant,”
fied—and the difference is
reviеwing court is left with
‘definite
then
cannot be classified
firm
that a mistake has been
conviction
pursuant to
provision
an eo nomine
”
Prods. Co. v. United
committed.’ Timber
Casio,
States,
v. United
73 F.3d
Inc.
(Fed.Cir.2008)
F.3d
(citation
(Fed.Cir.1996)
and internal
v. United States
(quoting United States
omitted).
marks
quotation
Co.,
364, 395,
68 S.Ct.
Gypsum
U.S.
*6
(1948)).
525,
goods
prima
are
facie clas
92
con-
“When
L.Ed. 746
“Absent
intent,
headings
are
two or more
or
trary legislative
terms
sifiable under
HTSUS
HTSUS,
according
apply
to
common
of
we
3 to
subheadings
to be construed
their
GRI
”
Zeiss,
CamelBak,
meanings....
649
and commercial
Carl
resolve the classification.”
3(a),
Inc. v.
195 F.3d
with
begin
United
F.3d
1365. We
GRI
(Fed.Cir.1999).
which states:
which
the most
provides
HTSUS GRIs and Additional U.S.
preferred to
specific description shall be
classifi
Interpretation govern
Rules of
general
more
de-
headings providing a
and are
imported
cation
merchandise
of
However,
two more
scription.
when
or
Id.;
applied in numerical order.
see
of the
headings
part only
each refer to
States, 160
Mita
Copystar Am. United
in
or substances contained
materials
(Fed.Cir.1998) (“The
710, 712
first
F.3d
composite
part
or
goods
mixed or
step
analyzing
in
classification issue
put
for
only
up
of the items in a set
subheadings,
if
applicable
determine
sale,
headings
those
are to be
retail
1.”).
addition,
In
“a
under GRI
possible,
specific in relation
regarded
equally
as
Explanatory
may
*7
instruments;
nation of
parts
these
and
Crosse
the
that
time-related features are
accessories thereof:
issue,
incidental to the
at
like a
devices
pyrometers,
Thermometers
and
not
a
appliance
common household
with
built-
combined with other instruments:
Instead,
key
in clock.
the
function of the
liquid
9025.19 Other [than
filled]:
display
devices at issue is to measure and
pyrometers]
9025.19.80Other [than
not-insignificant
A
portion
information.
of
Other
9025.80
the
of
model
display
each
is devoted to
Electrical
9025.80.10
In
providing time-related information.
watches,
9105 Other clocks [than wrist
deed, the
timekeeping functionality
the
watches,
pocket
and
watches
other
products
initially
at issue
led
Customs
movements,
clocks with watch
and in-
classify
all the devices
issue as clocks.
panel
strument
clocks]:
We find that the
time-related funсtions
Wall Clocks:
“substantially
the
devices
Electrically operated:
9105.21
excess” of the features described in Head-
Casio,
(citation,
prices
charges
ing
“higher
the
CamelBak
at 1098
ing 9015.
F.3d
omitted).
subject
emphasis
and
the
articles
pay
and
Conse-
consumers
quotation,
not describe
Heading 9015 does
quently,
compared
backpacks”
as
conventional
whole,
products
a
the
as
determining
products
were not
that
inappropriate.3
under
1 is
properly
conventional back-
considered
1).
a conse-
рacks pursuant
to GRI
As
analysis
our
we conduct
Because
quence,
that it is the Clock
we conclude
the
under GRI
we examine
essential
capabilities,
op-
as
meteorological
models’
at issue. Deter
character of the devices
functions,
posed
their
that
time-related
mining
character
the essential
provide
character.
their essential
analysis that in
requires
fact-intensive
de
of various factors
cludes consideration
to the models the
With
type
goods involved.
pending on the
in
court classified as combination
trade
U.S.A.,
v. United
Depot
Home
Inc.
subheading
struments
9025.80.10
(Fed.Cir.2007).
In
F.3d
1336-37
(i.e.,
models),
the
the Weather Station
case,
this
the trade court conducted
that
trade court observed
analysis, and
essential character
of weatherrelated
“have
concentration
a number of the devices at issue
clocks
predominate in number
features which
subheading
La
9105.91.40.
Crosse,
La
over the clock functions.”
F.Supp.2d at 1361-62. The
signifi
on
at 1360. Based
F.Supp.2d
on the fact that
Crosse
court focused
cant
features these models
weather-related
models as clocks in its
described these
possess,
agree
court that
we
trade
literature,
array of time-
marketing
“[t]he
“the
essential character
Weather
equal
greater
[to]
related features
given by the weather-related
Stations is
functions,”
than
weather-related
functions.” Id.
display
fact
weather
that
Having determined that
the essential
size than time
type
information in smaller
of all the devices at issue
character
information. Id.
meteorological
appeal is relatеd to their
we
time-re
Although
agree
time-related)
(as
opposed
capabilities,
important aspect
are an
lated functions
we
now
which HTSUS
must
determine
trade
court classified as
goods.
subheading best describes these
clocks,
conclude that
the trade court
we
rel-
competing subheadings
are two
There
determining
error
that the
committed
this
that describe meteoro-
evant to
essential character of the Clock models
logical devices—9025.80.10
9015.80.80.
As
timekeeping.
was related
of each
scоpe
We examine
out,
trade court
points
the devices the
below.
classified as clocks monitor weather condi
“[h]ydrometers
9025 describes
provide
tions
weather forecasts
instruments,
ther-
floating
and similar
their activi
plan
consumers often use to
barometers,
mometers,
hy-
pyrometers,
addition,
In
ties.
these weather-related
recording
grometers
psychrometers,
to the
*8
significant
prod
features
cost
add
in-
not,
any
or
these
and
combination of
issue, making
considerably
at
ucts
them
respect to combinаtions
struments.” With
than a
clock.
expensive
more
standard
(observ-
instruments,
CamelBak,
Notes to
Explanatory
1369
of
See
the broader electrically operated more alarm clocks. by Heading and vices described specifically by 9015.80.80. to finding its as The trial court based the models the essential character of clock V. Conclusion cоurt the “numerous on what the called above, we re- For reasons out the set predominant functions clock-related of the Court of Inter- judgment verse the court marketing.” and clock-related The the classifi- national Trade with by noted that those models sold order challenged appeal and cations on catalog in its and website as either Crosse in reliquidate these models Customs to “Projection” In its “Atomic” or “clocks.” accordance with their the advertising, La refers to both subheading 9015.80.80. clock and the weather forecast- functions devices, the but features ing functions of it REVERSED. prominently, clock functions more re- the part in Opinion concurring “Pro- ferring variously those models as Judge dissenting part in filed Circuit Clock,” “Projection jection Alarm Alarm BRYSON. Precision,” Atomic Atomic “Wireless Clock Alarm,” “Projection Alarm Projection BRYSON, Judge, concurring in Circuit Forecast,” “Projection Alarm with Clock dissenting in part part. Forecaster,” and with Oscar Outlook Clock majority the this case agree I with that with Digital “Atomic Wall Clock Forecast General Rule of must bе decided under ma- marketing & Weather.” Crosse’s Interpretation requires a de- of the items’ important terials are evidence termination as the “essential character” Pillsbury character. Co. essential See that agree the in I also dispute. (Fed. 431 F.3d United the trial conclusion uphold we must court’s Cir.2005). the dis- proper as to classification of the day most prominent The time of is the the unless puted items we conclude models, clock feature on each the findings underlying classifica- court’s the temperature the and some indica- outdoor IAnd tion decision constitute clear error. (based on internal tion of the forecast agree majority’s with the conclusion barometer) a less occupying prominent fall the not “weather station” do display panel. Most place the device’s as heading under HTSUS “thermom- tempera- time project of the clocks the eters, barometers, hygrome- pyrometers, Each large ture on the wall numbers. any ters ... combination of these other time-related clocks has I instruments.” therefоre concur with a functions, time alarm with that the station models must court weather control, calendar, time perpetual snooze heading “me- be classified under 9015 as setting, updates and automatic zone teorological appliances.” instruments and Daylight Savings Time. majority I one is- disagree with the on evidence, trial Based all that sue, As “clock” however. so-called forecasting court that the function WT-5130, found i.e., WS-8157, subsidiary to the clock func- WT-5442, the clocks was WT-5432, I uphold would give the de- tions and was insufficient those de- thе trial court’s conclusion that of meteoro- vices “essential character” be under HTSUS vices should contrary, the clocks,” To the logical equipment. 9105 as “other because found, features and permissibly found that court clock trial court *10 displays marketing in- “layout USA, TEVA “that the PHARMACEUTICALS
formation” demonstrated essen- INC., Industries, Teva Pharmaceutical given by tial character the Clocks Ltd., Neuroscience, Inc., component.” Teva clock Development Co., Yeda Research and Interpretation General Rule of Under Ltd., Plaintiffs-Appellants, only the trial court two had choices to the clock models: The the clock “essential character” of SANDOZ, INC., and Momenta Phar- also was either clocks that had weath- Inc., maceuticals Defendants- function, forecasting er or as weather fore- Appellants, casting devices that had a clock also func- The trial tion. court concluded that Mylan Inc., Mylan category Pharmaceuticals
first fit the “clock” models better Inc., Ltd., and Natco Pharma than the second. Defendants-Appellants, quintessentially That is a factual deter- justification I can mination. see no overriding the trial court’s factual finding Gmbh, Sandoz International substituting on that issue and this court’s AG, Novartis Defendants. judgment the essential character of 2012-1567, 2012-1568, Nos. four weather-predicting those models is as 2012-1569, 2012-1570. It instruments. is doubtless true that expensive each of the clock is more United Court of Appeals, States than it would be without the weather-relat- Federal Circuit. true, ed features. That would be July
however, if each daily of the clocks had a updated listing of scores baseball or Dow
Jones, Nasdaq, 500 averages and S & P
the bottom of the clock. Yet the inclusion a feature not alter would the “es-
sential character” of device from clock to sporting
of a that of a results exchange
monitor or a reporting securities
device. Because I believe do not the trial
court committed clear error its conclu-
sion as the “essential character” of the
clock I dissent respectfully from ruling
this court’s as to those four models. court refer to the Notes gives even if one of them goods, to those which not consti subheading, of tariff do description complete precise a more or controlling history but legislative tute the goods. of clarify are nonetheless intended 3(a) goods, as subheadings apply offer “We GRI when scope of and to HTSUS whole, subheadings.” prima are facie classifiable guidance interpreting headings subheadings more or opto-electronic two or 9105.21.40 With display determine heading provides which only specific description goods.” most 9105.21.80Other: CamelBak, 649 F.3d 1365. classi- When Electronically operated: 9105.91 3(a), fication cannot be resolved under GRI opto-electronic 9105.91.40 With display 3(b), turn to provides we which only goods they of con- though Analysis sist of the “material or which component IV. gives them their essential character.” The agree We with government that the analysis depend- essential character varies devices at properly are ing type at issue and pursuant to GRI ex- requires generally involves consideration amination the essential character of function, goods’ design, and use. each model. La Crosse contends that clas- Headings subheadings The HTSUS and sification pursuant to GRI is appropriate relevant to this are as follows: because prima the models at issue are 9015 Surveying (including photogram- meteorological appli- classifiable as facie surveying), hydrographiс, metrical ances Heading According oceanographic, hydrological, meteorolog- Heading 9015—which covers geophysical ical ap- or instruments and “meteorological ... appli- and instruments pliances, excluding compasses; rangefin- ances”—describes each device in whole. ders; parts and accessories thereof: however, argument, La Crosse’s instruments appli- 9015.80 Other and weight does not give proper signifi to the theodolites, rangefinders, [than ances cant timekeeping functions and features levels, tachymeters, photogrammet- and the devices at issue. All the de relevant surveying appli- rical date, display many vices the time and ances]; tim others have time alarms with snooze optical [than 9015.80.80 Other instru- describes, ers. HTSUS ments, appliances, seismographs] part, meteorological relevant But devices. Hydrometers floating similar capable nowhere it does mention devices instruments, thermometers, pyrometers, Instead, timekeeping. barometers, hygrometers psyehrom- headings other (e.g., described eters, not, recording any combi- HTSUS). disagree We
Notes
Notes scription of 9025. Heading The thermom- 9015 state: “It should be noted that this eters and barometers described thermometers, not group does cover ba- are instruments that measure current con- rometers, hygrometers and psychrome- ditions. Such potentially ters, nor combinations of such instruments could record historical measurements as 90.25).” omitted). (heading (emphasis contrast, By well. the ability of the de- 9015, Headings together 9025 and read vices at issue on appeal provide pre- in light and viewed of their respective weather analyzing dictive forecast baro- Notes, Explanatory mutually set out thus readings goes metric well beyond merely categories exclusive meteorological de- measuring and recording information Heading vices. 9025 is limited to in- existing about or past atmospheric condi- expressly struments it names and combi- forecasting tions. This function thus dis- nations of those instruments. tinguishes the meteorological devices at 9015, hand, broadly on the other encom- issue on from the instrumеnts de- passes meteorological ap- instruments and by Heading scribed pliances other than the instruments and explicitly combinations described in Head- Forecasting the defining is characteris- ing 9025. tic of the provides devices at issue that Forecasting their essential character. is terms, In simplest Heading 9105 not is prominently featured the names of descriptive of the ap- devices issue on See, (de- many of the devices. e.g., JA129 peal, Headings while devices, scribing model both WS-9055 as a “Wireless relevant establish mutually Station”); exclusive classifications. It our Forecast JA132 (describing job mutually decide of the two model WS-9075 as “Wireless Fore- categories exclusive appropriately Station”). more Forecast information cast/Moon encompasses the defining characteristics of up a significant portion takes the de- these products. And, displays. vices’ the record indicates significant that the forecasting feature is a all ap Because of the devices on purchasing driver consumers’ decisions. peal forecasting have capabilities, we con forecasting See that a (indicating JA86 de- they clude that un properly classified significantly vice outsold a similar device der 9015.80.80. The trade Thus, forecasting that lacked capability). court concluding erred in otherwise. forecasting feature is central trade court importance discounted the at issue takes the devices at forecasting devices’ function because they scope out of the narrow instru- “imprecise were lack the charac ter of meteorological equipment.” by Heading ments described and into