                           Slip Op. 06-1

            UNITED STATES COURT OF INTERNATIONAL TRADE
______________________________
                               :
ESSEX MANUFACTURING, INC.,     :
                               :
          Plaintiff,           :
                               : Before: Richard K. Eaton, Judge
          v.                   :
                               : Court No. 02-00101
UNITED STATES,                 :
                               :
          Defendant.           :
                               :
______________________________:

                              OPINION

[Defendant’s motion for summary judgment granted; Plaintiff’s
cross-motion for summary judgment denied; case dismissed]


                                           Dated: January 3, 2006


     Neville Peterson, LLP (John M. Peterson and Maria E. Celis),
for plaintiff.

     Peter D. Keisler, Assistant Attorney General, Civil
Division, United States Department of Justice; Barbara S.
Williams, Attorney-in-Charge, International Trade Field Office
(Jack S. Rockafellow); Chi S. Choy, Office of Assistant Chief
Counsel for United States Bureau of Customs and Border
Protection, of counsel, for defendant.



     Eaton, Judge:   This matter is before the court on cross-

motions for summary judgment pursuant to USCIT Rule 56.

Plaintiff Essex Manufacturing, Inc. (“Essex” or “plaintiff”),

challenges the classification of its imitation leather jackets by
Court No. 02-00101                                           Page 2

the United States Customs Service (“Customs”)1 under the

Harmonized Tariff Schedule of the United States (2000)

(“HTSUS”).2   Customs classified the jackets under HTSUS

subheading 3926.20.90 as “Other articles of plastics and articles

of other materials of headings 3901 to 3914: . . . . Articles of

apparel or clothing accessories (including gloves, mittens and

mitts): . . . Other: . . . ” subject to a 5% ad valorem tariff

rate.3   Essex argues that its jackets are properly classifiable


     1
          Effective March 1, 2003, the United States Customs
Service was renamed the United States Bureau of Customs and
Border Protection. See Reorganization Plan Modification for the
Dep’t of Homeland Security, H.R. Doc. 108-32 at 4 (2003).
     2
          With respect to the subsections at issue in this
action, the terms of the Harmonized Tariff Schedule of the United
States in 1999 are identical to those of 2000.
     3
          It is undisputed that Customs properly found in
Headquarters Ruling Letter 963800 of April 17, 2001, that in
order to classify the jackets under plaintiff’s proposed
subheading, HTSUS 3926.20.60, plaintiff had to establish that:

     1. The article in issue is plastic;

     2. The article is “rainwear,” which includes jackets,
     coats, ponchos, parkas and slickers;

     3. The article features an outer shell of polyvinyl
     chloride plastic;

     4. The article may, but need not feature an attached
     hood; and

     5. The article is not valued over ten ($10) dollars per
     unit.

See also Pl.’s Mem. of Points and Auth. in Supp. of Pl.’s Mot.
for Summ. J. at 7. It is also undisputed that defendant concedes
                                                   (continued...)
Court No. 02-00101                                           Page 3

under HTSUS subheading 3926.20.60 as “Plastic rainwear, including

jackets, coats, ponchos, parkas and slickers, featuring an outer

shell of polyvinyl chloride plastic with or without attached

hoods, valued not over $10 per unit,” and, thus, not subject to

any tariff.   By its cross-motion, defendant United States (the

“Government” or “defendant”), on behalf of Customs, maintains

that Customs properly classified the subject merchandise under

HTSUS subheading 3926.20.90, and asks the court to deny Essex’s

motion and dismiss this case.   The court has jurisdiction

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

forth below, the court denies plaintiff’s motion for summary

judgment, grants the Government’s cross-motion for summary

judgment, and dismisses this case.



                            BACKGROUND

     Plaintiff is an importer of the subject merchandise, which

it identifies as polyvinyl chloride (“PVC”) or “pleather”

jackets.   See Pl.’s Mem. of Points and Auth. in Supp. of Pl.’s

Mot. for Summ. J. (“Pl.’s Mem.”) at 1.    In June, July, and August

of 1999, plaintiff imported these jackets at ports of entry in

Atlanta, Georgia and Los Angeles, California.    See Summons of


     3
      (...continued)
that plaintiff’s jackets meet each of these criteria except so
much of number 2 as requires that the jackets be “rainwear.” See
Def.’s Mem. in Opp’n to Pl.’s Mot. for Summ. J., and in Supp. of
a Trial or Def.’s Cross-Mot. for Summ. J. (“Def.’s Mem.”) at 7.
Court No. 02-00101                                             Page 4

1/17/01.   Customs subsequently liquidated plaintiff’s five

Atlanta entries in November 1999, and the single Los Angeles

entry in June 2000, classifying the merchandise under HTSUS

subheading 3926.20.90.   Id.   Thereafter, plaintiff timely filed

protests challenging Customs’ classification.4    Customs, finding

that plaintiff’s jackets were not “rainwear,” denied the protests

and plaintiff timely commenced the present action.     Id.   Both

parties then moved for summary judgment pursuant to USCIT Rule

56.   After briefing was complete, the court ordered each party to

submit a letter brief addressing the issue of whether there was a

“common or commercial” meaning of the term “rainwear.”       See Pl.’s

Letter of 6/24/05; Def.’s Letter of 6/24/05.     Further, on August

4, 2005, an evidentiary hearing was held.   At the hearing, in

addition to presenting testimony as to the “common or commercial”

meaning of the term “rainwear,” the parties, through their expert

witnesses and various exhibits, also presented evidence as to the

construction, design, and marketing of plaintiff’s jackets and

other garments.   All of the testimony presented by the expert

witnesses was subject to cross-examination by opposing counsel as

well as questioning by the court.




      4
          Plaintiff filed its protest concerning the Atlanta
entries on December 22, 1999, and the Los Angeles entry on June
12, 2001. See Summons of 1/17/01.
Court No. 02-00101                                            Page 5

                          STANDARD OF REVIEW

     This court may resolve a classification issue by means of

summary judgment.     See Bausch & Lomb, Inc. v. United States, 148

F.3d 1363, 1365 (Fed. Cir. 1998).    Summary judgment is

appropriate “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 . . . .”    USCIT R. 56(c).   Summary judgment of a

classification issue “is appropriate when there is no genuine

dispute as to the underlying factual issue of exactly what the

merchandise is.”     Bausch & Lomb, 148 F.3d at 1365; Rollerblade,

Inc. v. United States, 112 F.3d 481, 483 (Fed. Cir. 1997).     Where

jurisdiction is predicated on 28 U.S.C. § 1581(a), Customs’

interpretation of an HTSUS tariff term, a question of law, is

subject to de novo review.     See 28 U.S.C. § 2640(a)(1); see also

E.T. Horn Co. v. United States, 27 CIT __, __, slip op. 03-20 at

4 (Feb. 27, 2003) (not published in the Federal Supplement)

(quoting Clarendon Mktg., Inc. v. United States, 144 F.3d 1464,

1466–67 (Fed. Cir. 1998)).



                              DISCUSSION

     The court employs a two-step process when analyzing a

classification issue: “[F]irst, construe the relevant

classification headings; and second, determine under which of the
Court No. 02-00101                                           Page 6

properly construed tariff terms the merchandise at issue falls.”

Bausch & Lomb, 148 F.3d at 1365 (citing Universal Elecs. Inc. v.

United States, 112 F.3d 488, 491 (Fed. Cir. 1997)).    Here, the

court finds, and the parties agree, that the subject merchandise

should be classified within HTSUS chapter 39, which provides for

classification of “plastics and articles thereof.”    Furthermore,

there is no disagreement that the subject merchandise should be

classified within heading 3926, which provides for “Other

articles of plastics and articles of other materials of headings

3901 to 3914.”   The parties differ, however, as to the

appropriate classification subheading.    Plaintiff argues that the

subject merchandise should be classified under subheading

3926.20.60 as “Plastic rainwear, including jackets . . .

featuring an outer shell of polyvinyl chloride plastic . . .

valued not over $10 per unit.”    See Pl.’s Mem. of Points and

Auth. in Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”) at 1–2

(emphasis added).    Defendant, on the other hand, claims that,

because it is not rainwear, the subject merchandise is properly

classified under subheading 3926.20’s “basket” provision, i.e.,

“Other articles of plastics . . . Articles of apparel . . . ,

Other . . . ” under subheading 3926.20.90.    See Def.’s Mem. in

Opp’n to Pl.’s Mot. for Summ. J., and in Supp. of a Trial or

Def.’s Cross-Mot. for Summ. J. (“Def.’s Mem.”) at 7.    Where goods

are capable of being classified under two or more headings, the
Court No. 02-00101                                            Page 7

General Rules of Interpretation5 (“GRI”) direct that the “most

specific description shall be preferred to headings providing a

more general description.”   GRI 3(a).   Under the GRIs, then, if

this court finds that the jackets constitute “rainwear,”

plaintiff’s more specific proposed subheading would trump

defendant’s general provision.   Therefore, because “[t]he meaning

of [a] tariff[] term is a question of law,” the classification of

plaintiff’s jackets is, in accordance with the two-step process,

initially dependent upon this court’s construction of the word

“rainwear.”   See E.M. Chem. v. United States, 20 CIT 382, 386,

923 F. Supp. 202, 206 (1996) (citing E.M. Chem. v. United States,

920 F.2d 910, 912 (Fed. Cir. 1990)).



I.   HTSUS 3926.20.60 is a Principal Use Provision

     For plaintiff to prevail in its proposed classification, its

jackets must be shown to be rainwear.    Both parties contend that

“rainwear,” as contained in subheading 3926.20.60, is a use

provision.    See Pl.’s Opp’n at 16–17; Def.’s Mem. at 1.   As such,

the term is properly read in the subheading as “plastic apparel


     5
          Classification of goods under the HTSUS is governed by
the General Rules of Interpretation (“GRI”). See Carl Zeiss v.
United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999) (citing
Baxter Healthcare Corp. of P.R. v. United States, 182 F.3d 1333,
1337 (Fed. Cir. 1999)). If the proper classification cannot be
determined by reference to GRI 1, it is then necessary to refer
to the succeeding GRIs in numerical order. See N. Am. Processing
Co. v. United States, 236 F.3d 695, 698 (Fed. Cir. 2001)
(citation omitted).
Court No. 02-00101                                            Page 8

used as rainwear.”     See United States v. Hillier’s Son Co., 14

Ct. Cust. App. 216, 222 (1929) (“Obviously, the test of use must

be applied to a preparation in order to determine whether it is

to be classified as a medicinal preparation, although the word

‘use’ does not appear in paragraph 5.”); see also Stewart-Warner

Corp. v. United States, 748 F.2d 663, 667 (Fed. Cir. 1984)

(stating that “[d]og food is a tariff item which, like smokers’

articles, household utensils, tableware, and other

classifications too numerous to detail, is a use classification.

It means food that is used to feed dogs.”).    Moreover, in

completing the first step of the two-step process, the court is

required to reach a conclusion as to the principal use of the

subject merchandise.    Under the Additional U.S. Rules of

Interpretation (“AUSRI”),

     1. In the absence of special language or context which
     otherwise requires–

          (a) a tariff classification controlled by use
          (other than actual use) is to be determined
          in accordance with the use in the United
          States at, or immediately prior to, the date
          of importation, of goods of that class or
          kind to which the imported goods belong, and
          the controlling use is the principal
          use . . . .

AUSRI 1(a) (emphasis added).    Principal use is “the use ‘which

exceeds any other single use.’”     Lenox Collections v. United

States, 20 CIT 194, 196 (1996) (not reported in the Federal

Supplement) (emphasis in original).    Thus, the court must decide
Court No. 02-00101                                             Page 9

if plaintiff’s jackets belong to the class or kind of goods

principally used as rainwear.



     A.   Proper Meaning of Rainwear under the HTSUS

     “Where a tariff term is not defined in either the HTSUS or

its legislative history, the term is given its common meaning,

which is presumed to be the same as its commercial meaning.”

Intercontinental Marble Corp. v. United States, 381 F.3d 1169,

1173 (Fed. Cir. 2004) (citing Rocknel Fastener, Inc. v. United

States, 267 F.3d 1354, 1356 (Fed. Cir. 2001); Carl Zeiss, Inc. v.

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

(internal quotation marks omitted).



     Here, both parties cite various reference sources in support

of their positions.   Plaintiff presents the following definitions

of the term “rainwear”:   “Clothing and accessories that are

waterproofed or water-repellant,” Fairchild’s Dictionary of

Fashion 301 (2d ed. 1998); and “waterproof or water-resistant

clothing,” Merriam-Webster Online Dictionary.6    Likewise,

defendant presents the following definitions of the term

     6
          See wwww.m-w.com/dictionary/rainwear.
Court No. 02-00101                                             Page 10

“rainwear”: “garments suited for wearing in rain,” XIII The

Oxford English Dictionary 133 (quot. 1953) (2d ed. 1989); and

“waterproof or water-resistant clothing (as a raincoat) for bad

weather wear,” Webster’s Third New International Dictionary of

the English Language, 1877 (1993).    In like manner, at the

evidentiary hearing held in this matter, the parties’ experts

testified as to the definition of rainwear.7   Plaintiff’s witness

defined the term as “an article of clothing that is worn to

protect you against the elements - - of warmth8 and keeping you

dry and . . . water-resistant.”    Tr. of Civ. Cause For Evid.

Hearing (“Tr.”) at 19:12-14.   Defendant’s witness defined the

term as having the “primary function of protecting the wearer

from the rain.”   Tr. at 95:4–5.   In other words, the parties are

in substantial agreement that “rainwear” means a garment that

keeps the wearer dry in the rain.    The question then arises as to


     7
          On June 13, 2005, prior to the evidentiary hearing,
this court ordered the parties to submit letter briefs
addressing, among other things, whether the term “rainwear” had a
common or commercial meaning within the trade. See Order of
6/13/05. Neither party claimed that “rainwear” had any special
meaning within the garment trade. See Pl.’s Letter of 6/24/05 at
2 (arguing that “the common meaning of rainwear does not include
any of the limitations posited by Customs . . . .”); see also
Def.’s Letter of 6/24/05 at 1 (contending that, despite not
having a special meaning, the common meaning of the term should
be limited).
     8
          It is worth noting that, at various times, plaintiff
seeks to introduce the notion that rainwear is worn not only to
ward off the rain, but also to keep the wearer warm. See, e.g.,
Pl.’s Opp’n at 17 (“purchasers use [the] merchandise to stay dry
and warm in inclement weather.”) (emphasis added).
Court No. 02-00101                                          Page 11

whether all garments that are waterproof or water-resistant and,

therefore, provide some protection from the rain, are rainwear in

their principal use.



     B.   Principal Use of the Subject Merchandise

     As previously noted, the principal use of an article is that

“use . . . which exceeds all others.”   Sports Graphics, Inc. v.

United States, 24 F.3d 1390, 1394 (Fed. Cir. 1994); see also

Lenox Collections, 20 CIT at 196; Automatic Plastic Molding, Inc.

v. United States, 26 CIT 1201, 1205 (2002) (not published in the

Federal Supplement); Int’l Custom Prods., Inc. v. United States,

29 CIT __, __, 374 F. Supp. 2d 1311, 1332 (2005).    This court

customarily employs the several factors first referenced in

United States v. Carborundum Co., 536 F.2d 373, 377 (C.C.P.A.

1976) (“Carborundum Factors”), to decide whether an article is

included in a particular class or kind of merchandise.

Specifically,

     Factors which have been considered by courts to be
     pertinent in determining whether imported merchandise
     falls within a particular class or kind include [1] the
     general characteristics of the merchandise, [2] the
     expectation of the ultimate purchasers, [3] the
     channels, class or kind of trade in which the
     merchandise moves, [4] the environment of the sale, [5]
     the use, if any, in the same manner as merchandise
     which defines the class, [6] the economic practicality
     of so using the import, and [7] the recognition in the
     trade of this use.

Carborundum, 536 F.2d at 377 (internal citations omitted); see
Court No. 02-00101                                           Page 12

also Bousa, Inc. v. United States, 25 CIT 386, 389 (2001) (not

reported in the Federal Supplement); Simon Mktg., Inc. v. United

States, 29 CIT __, __, 395 F. Supp. 2d 1280, 1289 (2005).



     1.     General Characteristics of the Merchandise

     Plaintiff argues that its jackets have the characteristics

of a garment that would keep the wearer warm and dry in inclement

weather.    To that end, plaintiff describes the merchandise as

     below-waist-length “stadium” rainwear jackets, which
     feature the logos and colors of National Football
     League (NFL), National Basketball Association (NBA),
     Collegiate Licensing and Major League Baseball (MLB)
     teams. The outer shell of each jacket is constructed
     of a thick layer of polyvinyl chloride (PVC) plastic
     bonded to a tricot knit “scrim” fabric, which is
     composed 65% by weight of polyester and 35% of cotton.
     The jacket features a full front heavy zipper with long
     sleeves and elasticized cuffs. The collar is folded
     down and the bottom of the jacket features an
     elasticized waist. . . . The jackets are designed to
     be worn out of doors, in rainy or inclement weather.
     For example, they might be worn to football games or
     other sporting events (hence the name “stadium”
     jackets).

Pl.’s Opp’n at 2–3.    For plaintiff, these physical

characteristics place its jackets in the rainwear class or kind

of garment.    “[T]he subject merchandise is used in the same

manner which defines the rainwear class.    Like rubber slickers,

the subject pleather jackets are intended to be used in the rain

or snow to prevent rain from reaching the wearer.”     Pl.’s Opp’n

at 17–18.
Court No. 02-00101                                           Page 13

     Customs disputes plaintiff’s assessment of the subject

merchandise’s physical characteristics.   Specifically, Customs

argues that

     common experience has taught us that many outerwear
     garments which are primarily used or intended to be
     used for warmth and/or fashion may also have some
     water-repellant qualities. But those qualities alone
     do not qualify an article of clothing as belonging to
     the class or kind of merchandise known as rainwear.
     Rather, the principal purpose of rainwear is to keep
     the wearer dry in the rain. The primary function of
     [plaintiff’s] PVC jacket is as [a] substitute
     leather . . . varsity jacket, rather than functioning
     primarily as rainwear.

Def.’s Mem. at 1 (emphasis omitted).   Customs bases this

assertion on its observation that the jackets at issue “do not

have any underarm vents, back vents, or chest vents . . . are

‘waist’ length . . . .   The outside pockets . . . do not have

flaps, buttons, zippers or velcro fasteners . . . [and] there is

no fabric flap covering the zipper . . . .”9   Def.’s Mem. at 2–3.

Customs maintains that although the jackets may be waterproof or

water-resistant, the absence of these features prevents the

merchandise from effectively keeping the wearer dry in the manner

that would allow their principal use to be as rainwear.     That is,

without these features, the jackets cannot have as their “use

that exceeds all others” the protection of the wearer from the


     9
          Plaintiff agrees that the subject merchandise lacks the
above mentioned features; however, plaintiff disagrees that the
presence or absence of those features is determinative of whether
the subject merchandise can be properly classified as rainwear.
See generally Pl.’s Opp’n at 14–18.
Court No. 02-00101                                           Page 14

rain.



     Based on the undisputed facts and the court’s own

examination of plaintiff’s jackets, it is apparent that they lack

the characteristics of garments whose principal use is as

rainwear.   First, the jackets fail to protect the lower half of

the body from getting wet in the rain.10   Indeed, the jackets are

designed with an elasticized waistband over which the jacket

blouses, which, as this court observed when a jacket was worn in

open court, tends to make the jacket ride up to the waist.    As a

result, the wearer’s buttocks and legs would be subject to the

soaking effects of rain.   See Tr. at 103:22-24.   Further, the

scrim tricot fiber material that lines the jackets is intended to

provide warmth, see Tr. at 28:11–13; Tr. at 109:19, an

unnecessary feature of a garment principally designed to keep the

wearer dry in the rain irrespective of the outside temperature.

Rather, this feature is typical of a jacket whose purpose is to

provide warmth whether it is raining or not.    See Def.’s Resp. to

Pl.’s Facts at 2; Tr. at 108:10–13.   Here, the subject

merchandise is constructed of non-breathable PVC material with no

means of ventilation.   See Tr. at 49:17–19.   The absence of any




     10
          As the Federal Circuit has noted, “the merchandise
itself is often a potent witness in classification cases.” Simod
Am. Corp. v. United States, 872 F.2d 1572, 1578 (Fed. Cir. 1989).
Court No. 02-00101                                           Page 15

ventilation, such as grommets or breathable fabric,11 along with

the scrim tricot lining, will cause the wearer to perspire if the

jacket is worn in the rain for any length of time.    See Tr. at

108:15–16, 20–21 (explaining, through testimony of defendant’s

expert, that some type of ventilation is needed for “comfort and

wearability”); see also id. at 55:1–9, 10–13 (admitting, through

the testimony of plaintiff’s expert, that vents might help to

carry away perspiration).    Thus, the general characteristics of

the jackets indicate that they are not of the class or kind of

merchandise whose principal use is as rainwear.



     2.     Expectations of the Ultimate Consumer

     The second of the Carborundum Factors, the expectations of

the ultimate consumer, does little to support plaintiff’s

position.    According to defendant, it is difficult to see how a

consumer can expect plaintiff’s jackets to be used as rainwear

when the “primary function . . . is as a substitute leather

(“pleather”) varsity jacket . . . .”    Def.’s Mem. at 1.   Indeed,

plaintiff’s own expert repeatedly referred to the subject

merchandise as a “stadium jacket,” not as rainwear.    See Tr. at



     11
          The experts for both parties testified that the PVC
material that constitutes the subject merchandise is not
breathable, while at the same time acknowledged that breathable
fabrics, such as Gortex or Microfiber, are often used to
construct garments that are intended to be worn in the rain. See
Tr. at 48–49, 107:15–17.
Court No. 02-00101                                              Page 16

44:5–7.   Specifically, plaintiff’s expert stated that the subject

merchandise was “an all-purpose garment that could be used for

[both] rainwear and activewear.”     Id.   Plaintiff’s expert further

asserted that the type of individual who would purchase the

subject merchandise is “someone that wants to be noticed . . . to

be with their peers and . . . wants to feel part of the whole

sports thing.”   Id. at 37:11–13.    Such evidence leads the court

to conclude that a purchaser would not primarily buy the subject

merchandise for protection from the rain, but instead would

purchase the jacket for wear in any cool weather conditions.

Thus, the expectations of the ultimate purchaser provide support

for Customs’ classification.



     3.   Channels of Trade

     Third among the Carborundum Factors is the channels of trade

in which the merchandise moves.     In arguing that their jackets

move in the same channels of trade as merchandise included in the

class or kind of rainwear, plaintiff claims that “the licensing

agreements and sales sheets [for the production and sale of the

merchandise] show that the merchandise moves in particular sales

environments and channels of trade belonging to rainwear and is

recognized in the trade as rainwear.”      Pl.’s Opp’n at 18.   An

examination of these documents, however, reveals that they

provide, at best, equivocal evidence for plaintiff.      While the
Court No. 02-00101                                           Page 17

sales sheets (some of which appear to be with a related

manufacturer) refer to the merchandise as rainwear, the licensing

agreements do not.   For instance, the licensing agreement with

NBA Properties, Inc. refers to “Adult sized synthetic leather

jackets for mass retail distribution only,” see Letter from NBA

to William Baum of 9/3/1998 at 2, and that of The Collegiate

Licensing Company to “Water Repellant PVC Jacket (Pleather),” see

The Collegiate Licensing Company Specification Sheet at 1.    Thus,

the documents plaintiff cite as support for its proposed

classification are of little use for that purpose.



     4.   Environment of Sale

     The fourth Carborundum Factor is the environment in which

the merchandise is sold.   Despite plaintiff’s contention in its

brief that “the merchandise moves in particular sales

environments . . . as rainwear,” Pl.’s Opp’n at 18, nothing

indicates that the subject merchandise was ever specifically

promoted, advertised, or sold as rainwear.   To the contrary, as

plaintiff’s expert testified and Customs’ expert agreed, given

the “mass-market” character of the subject merchandise, the

stores that would ultimately purchase the jackets for retail and

in which the jackets would be sold, i.e., Sears, Wal-Mart, or

Target, “don’t . . . have specific departments that say

rainwear . . .,” Tr. at 33:16–19 (testimony of plaintiff’s
Court No. 02-00101                                           Page 18

expert), and “[the purchaser] almost ha[s] to do the shopping

[herself] in those kind of stores.”   Id. at 47:4–5; see also Tr.

at 113:9–12, 20–25 (concurring testimony of defendant’s expert).

Thus, it appears that the environment of sale does not aid

plaintiff.



     5.   Use, Economic Practicality, Recognition in the Trade

     The remaining Carborundum Factors, (a) use of the subject

merchandise in the same manner as merchandise which defines the

class; (b) the economic practicality of so using the import; and

(c) the recognition in the trade of this use, merit brief

examination.   First, while there was no direct evidence of the

jackets being actually used to prevent the wearer from getting

wet, there is no dispute that the jackets are waterproof or

water-resistant.   Thus, nothing would preclude the jackets from

having some utility as protection if worn in the rain.     That is,

while they may not afford the more complete protection of other

garments, the court finds that one of the uses of the jackets

could be to provide the wearer some protection from the rain.

Next, while there was no direct evidence of the economic

practicality of using the jackets as rainwear, at an imported

price of under $10 per jacket, there would appear to be little

economic impediment to the jackets being purchased by many

consumers.   Finally, there is no evidence on the record
Court No. 02-00101                                            Page 19

indicating that the jackets would be recognized in the trade as

rainwear.    Both experts consistently referred to the jackets as

something other, i.e., “stadium jackets,” Tr. at 118:5–15,

“varsity jackets,” id., and “outerwear jackets,” id. at 45:12–13,

115:13–14.    Indeed, plaintiff’s expert stated that the jackets

would not be found in a “rainwear” section because the stores

simply “[do not] really have specific departments that say

rainwear anymore.”    Tr. at 33:23–24.   Thus, to the extent that

evidence is on the record, it does not support a finding that the

jackets are recognized in the trade as rainwear.



     Having applied the Carborundum Factors to the subject

merchandise, it is apparent they do not indicate that the

jackets’ “use which exceeds any other single use” is to keep the

wearer dry.    Thus, the jackets are not principally rainwear.

Chief among the reasons for this conclusion is that the general

physical characteristics of the jackets are not in accord with

their principal use being rainwear.      In addition, the remainder

of the Carborundum Factors would not compel a different

conclusion.    As a result, the court rejects plaintiff’s proposed

classification.    This being the case, the court finds that the

defendant has demonstrated that the proper classification12 of


     12
          In a classification case, this court is “required to
decide the correctness not only of the importer’s proposed
                                                   (continued...)
Court No. 02-00101                                           Page 20

the merchandise is the basket provision under HTSUS subheading

3926.20.90, “Other articles of plastics and articles of other

materials of headings 3901 to 3914: . . . Articles of apparel and

clothing accessories (including gloves, mittens and mitts): . . .

Other . . . .”



                           CONCLUSION

     Therefore, the court denies plaintiff’s motion for summary

judgment, grants the Government’s cross-motion for summary

judgment, and dismisses this case.   Judgment shall be entered

accordingly.



                                            /s/ Richard K. Eaton
                                              Richard K. Eaton


Dated:    January 3, 2006
          New York, New York




     12
      (...continued)
classification but of the government’s classification as well.”
Jarvis Clark Co. v. United States, 733 F.2d 873, 874 (Fed. Cir.
1984). Indeed, this court “must consider whether the
government’s classification is correct, both independently and in
comparison with the importer’s alternative.” Id. at 878.
