Slip Op. 24-18
UNITED STATES COURT OF INTERNATIONAL TRADE
TRIJICON, INC.,
Plaintiff,
v. Before: Mark A. Barnett, Chief Judge Court No. 22-00040 UNITED STATES,
Defendant.
OPINION
[Denying Plaintiff’s motion for summary judgment and granting Defendant’s cross- motion for summary judgment.]
Dated: February 16, 2024
Alexander D. Chinoy, Shara L. Aranoff, and Cynthia Galvez, Covington & Burling LLP, of Washington, DC, for Plaintiff Trijicon, Inc.
Luke Mathers, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, for Defendant United States. With him on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and Justin R. Miller, Attorney-In-Charge, International Trade Field Office. Of counsel on the brief was Michael A. Anderson, Office of the Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection.
Barnett, Chief Judge: Before the court are cross-motions for summary judgment.
See Confid. Mem. of P. & A. in Supp. of Pl.’s Mot. for Summ. J. (“Pl.’s Mem.”), ECF 28;
Def.’s Cross-Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. (“Def.’s
Cross-Mem.”), ECF No. 31; Confid. Pl.’s Mem. of Law in Resp. to Def.’s Cross-Mot. for
Summ. J. (“Pl.’s Resp.”), ECF No. 36; Def.’s Reply in Supp. of its Cross-Mot. for Summ.
J. (“Def.’s Reply”), ECF No. 38. Plaintiff Trijicon, Inc. (“Trijicon” or “Plaintiff”) contests Court No. 22-00040 Page 2
the denial of protest number 2304-21-102337 challenging U.S. Customs and Border
Protection’s (“Customs”) liquidation of the subject imports, referred to variously as
Tritium Sight Inserts, Tritium Lamps, or Trigalights, 1 under subheading 9405.50.40 of
the Harmonized Tariff Schedule of the United States (“HTSUS”) 2 as “[l]amps or other
lighting fittings,” dutiable at six percent ad valorem. Compl., ECF No. 9. Trijicon
contends that Customs should have classified the subject imports as an “[a]pparatus
based on the use of alpha, beta or gamma radiations,” under subheading 9022.29.80
and dutiable at zero percent ad valorem. Pl.’s Mem. at 1–2.
BACKGROUND
I. Material Facts Not In Dispute
A party moving for summary judgment must show “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” U.S.
Court of International Trade (“USCIT”) Rule 56(a). Parties submitted separate
statements of undisputed material facts with their respective motions and responses to
the opposing party’s statements. See Pl.’s Confid. Statement of Undisputed Material
Facts (“Pl.’s SOF”), ECF No. 28-1; Def.’s Resps. to Pl.’s Statement of Undisputed
Material Facts (“Def.’s Resp. to Pl.’s SOF”), ECF No. 31-1; Def.’s Statement of Add’l
Undisputed Material Facts (“Def.’s Add’l SOF”), ECF No. 31-2; Pl.’s Confid. Resps. to
1 The parties and the foreign manufacturer use different terminology to refer to the
imported goods in question. The court refers to the items as “subject imports.” 2 All citations to the HTSUS are to the 2019 version, as determined by the date of
importation of the subject imports. See LeMans Corp. v. United States, 660 F.3d 1311, 1314 n.2 (Fed. Cir. 2011). Court No. 22-00040 Page 3
Def.’s Statement of Add’l Undisputed Material Facts (“Pl.’s Resp. to Def.’s Add’l SOF”),
ECF No. 36-1.
The subject imports consist of eleven models of goods in two shapes: cylindrical
(which Trijicon uses in iron sights) and rectangular (which Trijicon uses in riflescopes).3
Pl.’s SOF ¶¶ 2, 5, 35, 36; see Def.’s Resp. to Pl.’s SOF ¶¶ 2, 5, 35, 36 (admitting in
relevant part). Each model contains, at least, a “gaseous tritium light source,” which
consists of a “hermetically sealed glass capsule . . . coated internally with zinc sulfide
(also called phosphor) and filled with tritium gas.” Pl.’s SOF ¶¶ 12–13; see Def.’s Resp.
to Pl.’s SOF ¶¶ 12–13 (admitting in relevant part). Tritium is a radioactive isotope of
hydrogen that emits a beta radiation particle as it decays. Pl.’s SOF ¶¶ 15–16; see
Def’s Resp. to Pl.’s SOF ¶¶ 15–16. “Beta radiation is not emitted outside of the subject
merchandise.” Pl.’s SOF ¶ 24; see Def.’s Resp. to Pl.’s SOF ¶ 24. The “beta particle
excites the interior zinc sulfide coating” in the glass capsule and “causes the coating to
emit a self-luminous glow.” Pl.’s SOF ¶¶ 20–21; see Def.’s Resp. to Pl.’s SOF ¶¶ 20–
21. The subject imports “are warranted to glow” for five years or twelve years,
depending on the model. Pl.’s SOF ¶¶ 54–55; see Def.’s Resp. to Pl.’s SOF ¶¶ 54–55
(admitting in relevant part). The subject imports are not lead-lined, Def.’s Add’l SOF
3 The distinctions between the models are immaterial. The parties (and the court) agree that, once the court determines the correct heading, all 11 models, regardless of shape, are covered by the same subheading. See Pl.’s Mem. at 4 n.4 (citing Customs’ representative’s deposition). Court No. 22-00040 Page 4
¶ 4; see Pl.’s Resp. to Def.’s Add’l SOF ¶ 4, and do not have an aperture “through which
beta radiation can pass,” Def.’s Add’l SOF ¶ 2; see Pl.’s Resp. to Def.’s Add’l SOF ¶ 2.
The subject imports are branded by its manufacturer as Trigalights. Def.’s Add’l
SOF ¶ 5; see Pl.’s Resp. to Def.’s Add’l SOF ¶ 5 (admitting fact to the best of Trijicon’s
knowledge). The subject imports, when inserted into Trijicon’s products, “illuminate[]
aiming points in firearm sights that Trijicon manufactures.” Pl.’s SOF ¶ 26; see Def.’s
Resp. to Pl.’s SOF ¶ 26 (admitting in relevant part). Without the subject imports
installed, Trijicon’s firearm sights would continue to work in daylight, but “the user would
lose the additional advantage . . . of being able to aim effectively in low-light situations.”
Pl.’s SOF ¶ 53; see Def.’s Resp. to Pl.’s SOF ¶ 53 (admitting in relevant part). The
foreign producer of the subject imports markets Trigalights for watches, compasses,
and gunsights, however, it is unclear (and not material) whether the specific models
imported could be used in other items. See Def.’s Add’l SOF ¶ 7; Pl.’s Resp. to Def.’s
Add’l SOF ¶ 7.
Trijicon refers to the subject imports as lamps in communications with the
manufacturer, in its engineering diagrams and instructions for factory workers, in
product information for the general public, and in regulatory filings. Def.’s Add’l SOF ¶¶
8–12; see Pl.’s Resp. to Def.’s Add’l SOF ¶¶ 8–12 (admitting in relevant part).
II. Procedural Background
The subject imports were entered between January 2019 and March 2019. Pl.’s
SOF ¶ 4; see Def.’s Resp. to Pl.’s SOF ¶ 4. In response to a request for internal advice,
on August 17, 2020, Customs issued a ruling, HQ H307905, concluding that the subject Court No. 22-00040 Page 5
imports are properly classified under HTSUS 9405.50.40 (“[l]amps and other light
fittings . . . not elsewhere specified”). See Pl.’s SOF ¶ 7; Def.’s Resp. to Pl.’s SOF ¶ 7.
On October 27, 2020, at the port of Laredo, Texas, Trijicon filed Reconciliation Entry
No. 637-0639215-4 covering six entries made between January 2019 and March 2019.
Pl.’s SOF ¶¶ 3–4; see Def.’s Resp. to Pl.’s SOF ¶¶ 3–4. On April 30, 2021, Customs
liquidated Reconciliation Entry No. 637-0639215-4 under tariff classification HTSUS
9405.50.40, and on October 17, 2021, Trijicon timely protested that classification. Pl.’s
SOF ¶¶ 8–9; see Def.’s Resp. to Pl.’s SOF ¶¶ 8–9; see also Pl.’s SOF ¶ 11 (stating
Customs conceded that the protest was timely); Def’s Resp. to Pl.’s SOF ¶ 11 (admitting
the same). On October 27, 2021, Customs denied the protest, relying on its internal
advice ruling. Pl.’s SOF ¶ 10; see Def.’s Resp. to Pl.’s SOF ¶ 10. Trijicon contests the
denial of its protest, contending that its imports are properly classified under HTSUS
9022.29.80 (“[a]pparatus based on the use of . . . beta . . . radiation . . . .”). Compl.
¶¶ 47, 55. Trijicon and the Government each moved for summary judgment.
JURISDICTION AND STANDARD OF REVIEW
The court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1581(a).
The court decides classification cases de novo. 28 U.S.C. §§ 2640(a), 2643(b).
While Customs’ classification is afforded deference relative to its “power to persuade,”
United States v. Mead Corp., 533 U.S. 218, 235 (2001) (quoting Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944)), the court has “an independent responsibility to decide
the legal issue of the proper meaning and scope of HTSUS terms,” Warner-Lambert Co.
v. United States, 407 F.3d 1207, 1209 (Fed. Cir. 2005). It is “the court’s duty . . . to find Court No. 22-00040 Page 6
the correct result, by whatever procedure is best suited to the case at hand.” Jarvis
Clark Co. v. United States, 733 F.2d 873, 878 (Fed. Cir. 1984).
LEGAL FRAMEWORK
The court may enter summary judgment when “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” USCIT
Rule 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
Classifying an imported good involves two steps: (1) determining the meaning of the
relevant tariff provisions and (2) determining whether the product at issue falls within a
particular tariff provision. Gerson Co. v. United States, 898 F.3d 1232, 1235 (Fed. Cir.
2018). The first step is a question of law; the second is a question of fact. Id. When
there is no factual dispute as to the nature of the product, the two-step analysis is
“entirely . . . a question of law.” Id. (citation omitted).
The General Rules of Interpretation (“GRIs”) provide the analytical framework for
the court’s classification of goods under the HTSUS. Id. The court applies the GRIs in
numerical order. Id. First and foremost, “for legal purposes, classification shall be
determined according to the terms of the headings and any [relevant] section or chapter
notes.” GRI 1, HTSUS. “Absent contrary legislative intent, [courts] construe HTSUS
terms according to their common and commercial meanings, which [courts] presume
are the same.” Otter Prods., LLC v. United States, 834 F.3d 1369, 1375 (Fed. Cir.
2016). The court may rely on its own understanding of the relevant terms and may
consult dictionaries, encyclopedias, or other reliable authorities. Kalle USA, Inc. v.
United States, 923 F.3d 991, 995 (Fed. Cir. 2019). In addition to the headings and Court No. 22-00040 Page 7
section or chapter notes, courts also may consult the World Customs Organization’s
Explanatory Notes, which, though not legally binding, “are ‘persuasive’ and are
‘generally indicative’ of the proper interpretation.” Otter Prods., 834 F.3d at 1375. GRI
3 is used by the court when it determines that the imported goods are prima facie
classifiable under two or more headings or subheadings of HTSUS. Home Depot
U.S.A., Inc. v. United States, 491 F.3d 1334, 1336 (Fed. Cir. 2007). Pursuant to GRI 3,
“[t]he heading which provides the most specific description shall be preferred to
headings providing a more general description.” GRI 3(a), HTSUS.
DISCUSSION
I. The Tariff Provisions at Issue
The parties propose two different classifications for the subject imports. 4 Trijicon
contends that the subject imports are properly classified under HTSUS 9022.29.80, at a
zero percent duty rate. Pl.’s Mem. at 2. Chapter 90 of the HTSUS covers “Optical,
photographic, cinematographic, checking, precision, medical or surgical instruments or
apparatus; parts and accessories thereof.” Chapter 90 excludes “[s]earchlights or
spotlights of heading 94.05.” Ch. 90, Note 1(ij). The relevant portion of Chapter 90
reads:
9022: Apparatus based on the use of X-Rays or of alpha, beta or gamma radiations, whether or not for medical, surgical, dental or veterinary uses, including radiography or radiotherapy apparatus, X-ray tubes and other X-ray generators, high tension generators, control panels
4 The court independently considered other tariff classifications, including those
mentioned in the Customs case file. See Pl.’s Confid. Ex. 1, ECF No. 28-2. The court concludes that no other classification would be appropriate. See Jarvis Clark Co., 733 F.2d 878 (explaining court’s duty to reach the “correct result”). Court No. 22-00040 Page 8
and desks, screens, examination or treatment tables, chairs and the like; parts and accessories there of:
Apparatus based on the use of alpha, beta or gamma radiations whether or not for medical, surgical, dental or veterinary uses, including radiography or radiotherapy apparatus:
9022.29: For other uses:
9022.29.80: Other
The Government contends that the subject imports are properly classified under
HTSUS 9405.50.40, subject to a duty rate of six percent. Def.’s Cross-Mem. at 13.
Chapter 94 covers “Furniture; bedding, mattresses, mattress supports, cushions and
similar stuffed furnishings; lamps and lighting fittings, not elsewhere specified or
included; illuminated signs, illuminated nameplates and the like; prefabricated
buildings.” The relevant portion of Chapter 94 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:
9405.50: Non-electrical lamps and lighting fittings:
9405.50.40: Other
The Explanatory Notes to both chapters and headings provide further guidance
for understanding the chapters and headings. For Chapter 90, “as a rule,” apparatus
are “characterised by their high finish and high precision,” though “[t]here are certain
exceptions to the general rule.” Def.’s Ex. 8 (2017 Explanatory Notes to Chapter 90) at Court No. 22-00040 Page 9
XVIII-90-3, ECF No. 31-10. 5 Apparatus “are used mainly for scientific purposes . . ., for
specialised technical or industrial purposes . . . or for medical purposes.” Id. Apparatus
“may be of any material.” Id.
Specifically for Heading 9022, the “radioactive substance is placed in a container,
normally of steel coated with lead (bomb), which has an aperture designed to let the
radiations pass in one direction only.” Id. at XVIII-9022-2. As examples, apparatus
based on the use of alpha, beta, or gamma radiations include therapy apparatus and
apparatus for radiological examinations. Id.
Turning to Heading 9405, lamps and light fittings may consist of “any material”
and “use any source of light.” Id. (2017 Explanatory Notes to Chapter 94) at XX-9405-1.
The heading includes “[s]pecialised lamps,” like “inspection lamps,” and “[l]amps and
light fittings for . . . vehicles . . ., for aircraft or for ships or boats,” like “headlamps for
trains.” Id.
Based on the plain language of HTSUS 9405, the two tariff classifications are
mutually exclusive. HTSUS 9405 covers “[l]amps and light fittings . . . not elsewhere
specified or included . . .,” so that if the subject imports are described by HTSUS 9022,
they cannot be classified under HTSUS 9405. Because of this mutual exclusivity, the
5 Defendant provided copies of the Explanatory Notes to both chapters and
subheadings from 2017; the 2019 version contains no relevant material changes. Court No. 22-00040 Page 10
subject imports are not prima facie classifiable under two headings and, therefore, GRI
3 does not apply.
II. HTSUS 9022 Classification
a. Parties’ Contentions
Trijicon argues for classification under heading 9022, Pl.’s Mem. at 12, and, to
that end, the parties disagree over whether the subject imports are “apparatus,” see
Def.’s Cross-Mem. at 22. Trijicon first focuses on “apparatus” as a “set of materials
which are intended for some purpose or use,” Pl.’s Mem. at 15, asserting that each
subject import is a set of materials consisting of, at least, a glass capillary, a phosphor
coating, and tritium gas, id. at 16. In response, the Government argues that the U.S.
Court of Appeals for the Federal Circuit (“the Federal Circuit”) defined “apparatus” as a
“complex device or machine for a specific use,” thereby “effectively” holding that a lamp
is not an apparatus. Def.’s Cross-Mem. at 13 (relying on Gerson, 898 F.3d at 1236).
The Government further argues that the subject imports are not apparatus described by
HTSUS 9022 because they do not have an aperture to let through beta radiation (as
described in the Explanatory Note); they are not high precision (also as described in the
Explanatory Note); and they cannot perform simple tasks like turning on and off or
dimming. Id. at 18–20. Even accepting Trijicon’s initial reliance on a “set of materials,”
the Government argues that the subject imports do not qualify because “materials”
means “tools” or “equipment,” not simply “anything that has matter.” Id. at 13–14.
Trijicon responds that the Federal Circuit also defined “apparatus” as “equipment
designed specifically to carry out a particular purpose,” and, Trijicon contends, the Court No. 22-00040 Page 11
subject imports meet this definition because they consist of three core components
(glass capillary, phosphor coating, and tritium) that “facilitate the aiming” of Trijicon’s
products. Pl.’s Resp. at 16–20. Moreover, Trijicon contends that the subject imports
also fit the proffered definition of “any complex device or machine for a specific use”
because the aforementioned parts cannot be easily separated—each relies on the
other. Id. at 17, 21–22. Finally, Trijicon asserts that each model of subject imports has
an aperture allowing light radiation to pass in one direction and that the “complex
production process” to manufacture the subject imports qualifies them as apparatus. Id.
at 21, 24–25.
The Government replies that the subject imports are not complex because the
parts are simply coordinated: they “statically interact” to create “the natural phenomenon
of radioluminescence,” Def.’s Reply at 12, and the aperture described in the
Explanatory Note refers to one for the beta radiation—not light radiation—which the
subject imports do not have, id. at 12–13.
b. Analysis
In Gerson, the Federal Circuit explained that, in setting out definitions for
apparatus, the term “is not free of ambiguity.” 898 F.3d at 1236 (citation omitted).
Here, while the parties present various definitions of “apparatus,” they ultimately
coalesce around two: “a set of materials or equipment for a particular use” or “a
complex machine or device.” Pl.’s Ex. 17, ECF No. 28-18 (reproducing Apparatus, THE
MERRIAM-WEBSTER DICTIONARY (11th ed. 2019)); see also Def.’s Ex. 7, ECF No. 31-9
(reproducing Apparatus, WEBSTER’S NEW WORLD DICTIONARY (3d ed. 1988) (“the Court No. 22-00040 Page 12
instruments, materials, tools, etc. needed for a specific use, experiment, or the like” or
“any complex device or machine for a specific use”)); Apparatus, COLLINS ENGLISH
DICTIONARY (1st ed. 2016) (“a collection of equipment used for a particular purpose”).
Similarly, the Federal Circuit described apparatus as “equipment designed specifically
to carry out a particular function,” relying in part on the definition of apparatus as “any
complex device or machine for a specific use.” Gerson, 898 F.3d at 1236 (quoting
Apparatus, WEBSTER’S NEW WORLD COLLEGE DICTIONARY (4th ed. 2009)). Here, any
difference between those two definitions (a set of materials or equipment or a complex
device) is inconsequential because the subject imports do not meet either definition.
The court takes each of those definitions in turn.
To begin, it is clear to the court that the subject imports serve a particular or
specific use or function. Namely, the subject imports provide illumination, in this case
for the aiming points in firearm sights that Trijicon manufactures. Pl.’s SOF ¶ 26; Def.’s
Resp. to Pl.’s SOF ¶ 26 (admitting in relevant part). While their insertion into various
firearm sights occurs after importation, the purpose of the subject imports, as imported,
is illumination, whether for firearm sights or for other products. Relatedly, the subject
imports also meet the common definition of a device—that is, a thing made for a
particular purpose. Device, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed.
2018). Moreover, Defendant effectively concedes that the subject imports are devices
because a lamp, by Defendant’s definition, is “any of various devices for producing light Court No. 22-00040 Page 13
or heat, as an electric light bulb or a gas jet.” Def.’s Ex. 7 (reproducing Lamp,
WEBSTER’S NEW WORLD COLLEGE DICTIONARY (3d ed. 1988)).
The court, however, concludes that the subject imports are not a set of materials
for purposes of HTSUS 9022. “[W]ords grouped in a list should be given related
meaning,” Third Nat. Bank v. Impac Ltd., 432 U.S. 312, 322 (1977), and the court
considers the provided examples when evaluating the definitions of apparatus
referencing materials or equipment in this context. In particular, the court notes that
Plaintiff’s proffered definition is “a set of materials or equipment.” Pl.’s Ex. 17 (emphasis
added). While this is stated in the disjunctive, in the context of an apparatus of HTSUS
9022, it appears incongruous to read “materials” to include anything of matter, rather
than referring to equipment or tools or instruments. See Def.’s Ex. 7 (providing the
definition of apparatus as “the instruments, materials, tools, etc. needed . . . .)
(emphases added). Equipment means a “set of articles or physical resources serving to
equip” something and is also, circularly for these purposes, known as an “apparatus.”
Equipment, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2018). Nevertheless,
each individual component of the subject imports must also serve a particular function.
While the subject imports each contain, at least, three components consisting of a glass
capillary, phosphor coating, and tritium gas, see Pl.’s SOF ¶¶ 12–13; Def.’s Resp. to
Pl.’s SOF ¶¶ 12–13 (admitting in relevant part), none of those constituent parts
constitutes equipment because no part, alone, serves a particular function. As
discussed below, it is only in combination with the other constituent parts that they serve
the intended function of providing illumination. Thus, the existence of the constituent Court No. 22-00040 Page 14
parts is insufficient insofar as “apparatus” means “a collection of equipment.”
Apparatus, COLLINS ENGLISH DICTIONARY (1st ed. 2016). Moreover, the alternative
definition of “a complex device” further supports that “apparatus” requires more than the
inclusion of individual constituent parts.
The alternative definition of a “complex device” fares no better for Plaintiff.
“Complex” is commonly defined as “[c]onsisting of parts or elements not simply co-
ordinated, but some of them involved in various degrees of subordination”;
“complicated, involved, intricate”; or “not easily analysed or disentangled.” Pl.’s Ex. 21,
ECF No. 36-4 (definition from the online version of The Oxford English Dictionary). The
court can readily discern the separate elements of the subject imports: the glass
capillary, the phosphor coating, and the tritium gas. However, as just discussed, these
elements must work together to create illumination—if any element were removed, the
illumination could not be effectively created and directed. Each element remains
distinct and able to be disentangled from the others, and no element is subordinate to
the others. Instead, all three elements must be coordinated, and this coordinated
functioning is not sufficient to establish complexity. Despite the scientific nature of this
manner of producing illumination, and the inclusion of beta radiation, it is a natural
phenomenon created by the coordination of different component parts. Trijicon’s
assertion of a “complex production process” to manufacture the subject imports, Pl.’s
Resp. at 21, is inapposite: the question is whether the device is complex, not whether Court No. 22-00040 Page 15
the process of creating the device is complex. Here, the subject imports are not
complex devices for purposes of being considered apparatus under HTSUS 9022.
The court is not suggesting that illuminative items can never be complex. Cf.
Def.’s Cross-Mem. at 15. In Gerson, the Federal Circuit, rather than discussing
complexity, explained that the LED candles at issue did not serve a particular function,
because they were both decorative and illuminative. 898 F.3d at 1236. In fact, the
Chapter 90 Explanatory Notes support the understanding that illuminative articles may
be complex by explicitly excluding “[s]earchlights and spotlights of heading 94.05.”
Def.’s Ex. 8 at XVIII-90-1. There would be no need to exclude any part of HTSUS 9405
from HTSUS 9022 if lamps could not be considered a complex device or apparatus.
Here, however, the court has considered the interaction of the individual parts of the
subject imports and determined that the subject imports are not complex. 6
The relevant Explanatory Notes further support the conclusion that the subject
imports are not apparatus notwithstanding their inclusion of beta radiation. The
Explanatory Notes contextualize how the beta radiation is used—it passes through an
aperture. Def.’s Ex. 8 at XVIII-9022-2. It is undisputed that the subject imports do not
contain an aperture “through which beta radiation can pass.” Def.’s Add’l SOF ¶ 2; see
6 Defendant also argues that classifying the subject imports under HTSUS 9022 would
unreasonably limit HTSUS 9405 to non-radiation powered lamps. Def.’s Cross-Mem. at 15. Trijicon replies by citing numerous Customs rulings classifying non-electrical lamps under HTSUS 9405. Pl.’s Resp. at 27–28. Because the court, relying on the definition of apparatus and the undisputed facts describing the subject imports, concludes the subject imports are not complex, this argument is inapposite. Court No. 22-00040 Page 16
also Pl.’s Resp. to Def.’s Add’l SOF ¶ 2. 7 Plaintiff attempts to avoid the absence of an
aperture for beta radiation by averring that the subject imports have an “aperture that
allows for light radiation to pass in one direction.” Pl.’s Resp. at 25; see also Pl.’s Ex.
23 at 13–14, ECF No. 36-6. But the Explanatory Note addresses alpha, beta, and
gamma radiation—not light radiation. See Def.’s Ex. 8 at XVIII-9022-2 (identifying beta
radiation and describing “an aperture designed to let the radiations pass in one direction
only”). Thus, the subject imports also do not ultimately use the beta radiation in the
manner referenced in the Explanatory Notes. That is to say, the beta radiation is
present and contained within the glass capsule, where it interacts with the phosphor
coating to create light radiation, which is directed by an outside sheathing (whether of
metal or paint). See Pl.’s SOF ¶¶ 21, 42, 63; Def.’s Resp. to Pl.’s SOF ¶¶ 21, 42, 63.
Trijicon’s attempts to analogize the subject imports to other Customs
classification rulings are unpersuasive. Relying on a 1991 Headquarters Ruling
regarding the classification of a research irradiator, Trijicon argues that Customs has
previously found that “the incorporation of radiation along with other materials resulted
in an ‘apparatus’ classified in 9022.” Pl.’s Mem. at 15 (citing HQ 088465 (Feb. 22,
1991)). That Customs ruling, however, is inapposite. First, the ruling did not define the
contours of an “apparatus”; rather, Customs focused on why the irradiator was not
classified as a package for radioactive materials. See HQ 088465. Second, that
product was “a high dose rate research irradiator” used for “medical product
7 The subject imports also do not contain a steel coating with lead; however, the parties
agree this is not a requirement. See Pl.’s Mem. at 24; Def.’s Cross-Mem. at 22. Court No. 22-00040 Page 17
sterilization, biological and genetic effects, food preservation, growth stimulation, [and]
chemistry pollution,” id.; that description suggests a different level of complexity and a
product that is incomparable in its manner of composition from the subject imports here.
The single common feature of beta radiation between the two goods is insufficient to
make the research irradiator a helpful comparator. 8
For the reasons listed above, the court concludes that the subject imports are not
properly classified under HTSUS 9022.
III. HTSUS 9405 Classification
Defendant argues that the subject imports are classifiable within HTSUS 9405,
lamps or light fittings. Defendant explains that the subject imports fit the common
definition of a lamp because they provide illumination, that light sources in gunsights are
referred to as lamps, and that Trijicon refers to the subject imports as lamps in various
materials. Def.’s Cross-Mem. at 10.
Trijicon responds that the subject imports cannot be classified as “lamps”
because that classification does not contemplate illumination devices using radiation for
8 Trijicon further relies on this Customs ruling to dispute that “Heading 9022 applies only
to an imported article consisting of several different devices working together as a machination, rather than a discrete, individual article designed for a particular purpose.” Pl.’s Resp. at 19. However, the Customs ruling in question did not provide a detailed description of the irradiator. See HQ 088465. Trijicon further cites to a Customs ruling classifying an Optical Heating Crystallization Device under HTSUS 9022, Pl.’s Resp. at 19, but that product consisted of a “laser, a red pointing laser diode, a combined scanner and mirror, additional mirrors, and a controller,” thus indicating it, in fact, contained “several different devices.” NYRL 184115 (Oct. 5, 2011). Court No. 22-00040 Page 18
specific purposes. Pl.’s Resp. at 2–15. Trijicon contends that the incorporation of
radiation and the specific purpose of these products distinguish them from examples of
lamps in caselaw and the Explanatory Notes (which do not mention tritium). Id. Trijicon
further argues that prior Customs rulings establish that illumination is insufficient to
warrant classification as a lamp because the subject imports do not light a room. Id. at
2–9. Trijicon avers that HTSUS 9405 “contemplates merchandise that the general
public would traditionally understand to be ‘lamps’ or ‘light fixtures,’” like “table lamps,
Christmas lights, and candlesticks.” Pl.’s Mem at 34.
The parties (and the court) agree that HTSUS 9405 is an eo nomine provision,
that is, one that describes an article by a specific name and, absent terms of limitation,
includes all forms of the article. See Carl Zeiss, Inc. v. United States, 195 F.3d 1375,
1379 (Fed. Cir. 1999) (citations omitted). When considering classification under an eo
nomine provision, the court may, in some circumstances, consider an article’s “physical
characteristics, . . . how it was designed and for what objectives, and how it is
marketed.” GRK Can., Ltd. v. United States, 761 F.3d 1354, 1358 (Fed. Cir. 2014).
It is clear from the definition of lamp and the description of the subject imports
that the subject imports are readily classified as lamps. A lamp is “any of various
devices for producing light.” Def.’s Ex. 7 (quoting Lamp, WEBSTER’S NEW WORLD
COLLEGE DICTIONARY (3d ed. 1988)). It is undisputed that the subject imports produce
illumination. Pl.’s SOF ¶ 26; see Def.’s Resp. to Pl.’s SOF ¶ 26 (admitting in relevant
part). The Explanatory Note confirms that lamps “can be constituted of any material . . . Court No. 22-00040 Page 19
and use any source of light.” Def.’s Ex. 8 at XX-9405-1. Thus, a lamp can readily
include one that involves beta radiation. It makes no difference that the Explanatory
Notes do not specify tritium-powered lamps because the list is exemplary, not
exhaustive. Moreover, Trijicon regularly refers to the subject imports as tritium lamps in
various documents within the organization and with government agencies. See Def.’s
Confid. Exs. 2–5, ECF Nos. 32-4, 32-5, 32-6, 32-7. At least one science journal also
refers to the item used to illuminate the aiming point of a gun as a “lamp.” See Def.’s
Ex. 7 (reproducing Gunsights, MCGRAW-HILL ENCYCLOPEDIA OF SCI. AND TECH. at 305
(9th ed. 2002) (“. . . the reticle may be illuminated by a small lamp to permit night use.”).
Meanwhile, Trijicon’s averment that the “general public” would not consider the subject
imports to be lamps is unsupported. The documented usage of the term “lamp” to
describe the subject imports suggests that they meet the “common and commercial
meaning[]” of lamps. See Carl Zeiss, 195 F.3d at 1379.
Trijicon’s further counterpoints are unavailing. First, Trijicon points out that, when
“pressed” to place the subject imports into one of the Explanatory Note’s categories, the
Government’s witness chose “candelabra, candlesticks, candle brackets, e.g., for
pianos.” Pl.’s Resp. at 7. Regardless of the witness’s suggestion, the Explanatory
Note’s list is not exhaustive, and Customs need not place the items in any category.
Moreover, the Government now suggests the subject imports could be considered to be
specialized lamps. See Def.’s Cross-Mem. at 10.
Trijicon next quibbles over the purpose of the subject imports, contending that
they are not meant to “illuminate a space” or “light a room” and therefore are not lamps. Court No. 22-00040 Page 20
Pl.’s Resp. at 7. But HTSUS 9405 is not limited to items meant to light a room—it
includes searchlights and spotlights, exterior lamps, and headlamps for trains, none of
which would necessarily light a room or even a space, as those lamps might be used for
guidance or warning. See Def.’s Ex. 8 at XX-9405-1. Moreover, the subject imports do
illuminate a space—as used by Trijicon, they illuminate the “aiming points in firearm
sights.” Pl.’s SOF ¶ 26; see Def.’s Resp. to Pl.’s SOF ¶ 26 (admitting in relevant part).
Trijicon’s reliance on caselaw wherein courts found that certain products (namely
LED candles and candles in decorative glass vessels) were properly classified under
HTSUS 9405 is equally unconvincing to distinguish the subject imports. Pl.’s Resp. at
3–4 (discussing Gerson, 898 F.3d 1232, and Pomeroy Collection, Ltd. v. United States,
32 CIT 526, 559 F. Supp. 1374 (2008)). Trijicon argues that because LED candles and
candles in decorative glass vessels are lamps, the subject imports, which are not
decorative and serve a single particular purpose, therefore are not lamps. Pl.’s Resp. at
3–4. The fact that the subject imports are different from the products in those cases
does not mean that they cannot also be lamps. The term lamp encompasses all sorts
of devices that illuminate and there is no requirement that a lamp be decorative simply
because two prior court opinions involved decorative lamps. Trijicon also notes that the Court No. 22-00040 Page 21
goods in Pomeroy fit into an identified category of the Explanatory Notes (candles), id.,
but that list is illustrative, not exhaustive.9
Finally, Trijicon argues that “a name that sometimes refers to the articles in
colloquial usage does not determine how the article is classified.” Pl.’s Resp. at 13.
Trijicon advises that courts should not “ignore the purpose for which [the subject
imports] were designed and made and the use to which they were actually put.” Pl.’s
Resp. at 13 (citation omitted). Nevertheless, marketing is a factor courts may consider,
GRK Can., 761 F.3d at 1358, and that is all the court does here—consider the
marketing and industry usage of the term “lamp” when describing the subject imports.
The court does not ignore the purpose of the subject imports; that purpose (illumination)
is consistent with the court’s analysis and conclusion. Trijicon would, instead, have the
court focus on the inclusion of beta radiation to find that the subject imports cannot be
lamps, see Pl.’s Resp. at 7, 9–10; however, the mere inclusion of beta radiation does
not detract from the court’s finding that the physical characteristics, design, objectives,
9 Trijicon also tries to analogize the subject imports to glows sticks and “light sticks,”
which Customs has previously classified as something other than lamps. See Pl.’s Resp. at 8–9. Those items, and their appropriate classifications, are sufficiently distinct from the subject imports that the analogies are unhelpful to the court. In particular, glow sticks were ultimately classified in a subheading that still required a lighting effect (unlike the alternative subheading here), and “light sticks” (according to Trijicon) “are used in a variety of applications” (unlike the subject imports here which are used solely for illumination). Court No. 22-00040 Page 22
and marketing of the subject imports for illumination support classification of the subject
imports as lamps within HTSUS 9405.
Having determined that the subject imports are properly classified within HTSUS
9405, and in the absence of any dispute as to the proper subheading, the court further
finds that these imports are properly classified within the HTSUS subheading
9045.50.40, Non-electrical lamps and lighting fittings, Other.
CONCLUSION
For the foregoing reasons, the court finds that Customs properly classified the
subject imports under HTSUS 9405.50.40. The court denies Plaintiff’s motion for
summary judgment and grants Defendant’s cross-motion for summary judgment.
Judgment will be entered accordingly.
/s/ Mark A. Barnett Mark A. Barnett, Chief Judge
Dated: February 16, 2024 New York, New York