Slip Op. 03-47
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE : RICHARD K. EATON , JUDGE
____________________________________
:
INTERCONTINENTAL MARBLE :
CORPORATION , :
:
PLAINTIFF , :
:
v. : CONSOL. COURT NO . 98-02961
:
UNITED STATES , :
:
DEFENDANT. :
____________________________________:
[Plaintiff’s motion for summary judgment granted; Defendant’s cross-motion for summary
judgment denied.]
Dated April 30, 2003
Miller and Chevalier Chartered (Richard H. Abbey and Joel W. Rogers), for Plaintiff
Intercontinental Marble Corporation.
Robert D. McCallum, Jr., Assistant Attorney General, Civil Division, United States
Department of Justice; John J. Mahon, Acting Attorney in Charge, International Trade Field
Office (Harry A. Valetk); Chi S. Choi, of counsel, Office of Assistant Chief Counsel,
International Trade Litigation.
OPINION AND ORDER
EATON, Judge: Before the court are cross-motions for summary judgment pursuant to USCIT R.
56. By its motion Plaintiff challenges the United States Bureau of Customs and Border
Protection’s (“Customs”)1 classification of certain entries of merchandise as “other calcareous
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
(continued...)
CONSOL. COURT NO . 98-02961 PAGE 2
stone” under subheading 6802.92.00 of the Harmonized Tariff Schedule of the United States
(“HTSUS”) (1998). Plaintiff argues that the subject merchandise is properly classifiable under
HTSUS subheading 6802.91.05 as “Worked monumental or building stone . . . Other: Marble,
travertine and alabaster: Marble: Slabs.” By its cross-motion the United States (“Government”),
on behalf of Customs, maintains that the subject merchandise is properly classifiable under
HTSUS subheading 6802.92.00 and asks the court to deny Plaintiff’s motion and dismiss this
action.2 The court has jurisdiction pursuant to 28 U.S.C. § 1581(a) (2000). Where jurisdiction is
predicated on 28 U.S.C. § 1581(a), Customs’s classification is subject to de novo review. See 28
U.S.C. § 2640; E.T. Horn Co. v. United States, 27 CIT __, __, Slip Op. 03-20 at 4 (Feb. 27,
2003) (quoting Clarendon Mktg., Inc. v. United States, 144 F.3d 1464, 1466 (Fed. Cir. 1998)).3
1
(...continued)
for the Dep’t of Homeland Security, H.R. Doc. 108-32, at 4 (2003).
2
According to the Summons the subject merchandise was entered between
1995–98 and liquidated under various rates of duty. The Summons states that the duty rates for
“other calcareous stone” during this period was: 5.8 percent ad valorum, 5.6 percent ad valorum,
or 5.3 percent ad valorum, and the duty rates for “marble slabs” was: 2.7 percent ad valorum or
2.6 percent ad valorum. In its memorandum in support of its motion Plaintiff states that “[f]or
the primary years here at issue in this case, 1997 and 1998, the rate of duty for the marble slabs
provision was 2.6 percent. The duty rate for the other calcareous stone provision was 5.3
percent.” See Pl.’s Mem. Supp. Mot. Summ. J. at 4. In its papers Defendant states that Plaintiff
“imported several types of hard stones . . . in 1996 through 1997,” and that the “other calcareous
stone” duty rate was 5.7 percent ad valorum, and the “marble slabs” duty rate was 2.7 percent ad
valorum. See Def.’s Mem. Supp. Cross-Mot. Summ. J. and Opp’n to Pl.’s Mot. Summ. J. at 1, 3.
3
Pursuant to 28 U.S.C. § 2639(a)(1) “a classification of merchandise by Customs is
presumed to be correct. Therefore, the burden of proof is upon the party challenging the
classification.” Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994) (citing
Jarvis Clark Co. v. United States, 733 F.2d 873, 876 (Fed. Cir. 1984)). This statutory
presumption of correctness, however, applies only to Customs’s factual findings. See Universal
Elecs. Inc. v. United States, 112 F.3d 488, 492 (Fed. Cir. 1997) (quoting Marbury v. Madison, 5
U.S. 137, 177 (1803)) (“The situation is quite different, however, with respect to pure questions
(continued...)
CONSOL. COURT NO . 98-02961 PAGE 3
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 where “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). The court employs a two-step process when analyzing a
classification issue: “first, construe the relevant classification headings; and second, determine
under which of the properly construed tariff terms the merchandise at issue falls.” Bausch &
Lomb, 148 F.3d at 1365 (citing Universal Elecs., 112 F.3d at 491). The first step in this process
is a question of law; the second step is one of fact. Id. 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.” Id. (citing Nissho Iwai Am. Corp. v. United States, 143 F.3d
1470, 1472 (Fed. Cir. 1998); IKO Indus., Ltd. v. United States, 105 F.3d 624, 626–27 (Fed. Cir.
1997); Rollerblade, Inc. v. United States, 112 F.3d 481, 483 (Fed. Cir. 1997); Sports Graphics,
Inc. v. United States, 24 F.3d 1390, 1391 (Fed. Cir. 1994)); see Avenues In Leather, Inc. v.
United States, 317 F.3d 1399, 1402 (Fed. Cir. 2003) (citing Mead Corp. v. United States, 283
3
(...continued)
of law, such as the proper interpretation of a particular tariff provision or term. Questions of law
such as these lie within the domain of the courts, for ‘[i]t is emphatically the province and duty of
the judicial department to say what the law is.’”); id. (citing Goodman Mfg., L.P. v. United
States, 69 F.3d 505, 508 (Fed. Cir. 1995)) (“[W]e conclude that although the presumption of
correctness applies to the ultimate classification decision, [plaintiff] properly interprets Goodman
as standing for the proposition that, as a practical matter, the presumption carries no force as to
questions of law.”); E.T. Horn, 27 CIT at __, Slip Op. 03-20 at 4 (citing Universal Elecs., 112
F.3d at 492) (“The presumption does not apply when there is no material fact at issue, because
the presumption does not carry force with questions of law.”). Here, there is no factual dispute as
to what the subject merchandise is and, therefore, the statutory presumption of correctness does
not attach to Customs’s classification.
CONSOL. COURT NO . 98-02961 PAGE 4
F.3d 1342, 1345–46 (Fed. Cir. 2002) (“Mead IV”)) (“If we determine that there is no dispute of
material facts, our review of the classification of the goods collapses into a determination of the
proper meaning and scope of the HTSUS terms that, as a matter of statutory construction, is a
question of law.”). Here, there is no genuine dispute as to any material fact. The parties agree
that the subject merchandise, variously identified as “Crema Marfil,” “Negro Marquina,” “Rojo
Alicante,” “Emperador Marron,” and “Botticino”: (1) is “stone ‘slabs’ meeting the definition set
forth in Additional Note 1 to Chapter 68, HTSUS,” Parties’ Agreed Statement of Material
Undisputed Facts at ¶ 2; (2) is not geological marble but, rather, various types of non-crystalline
calcareous stone and, more specifically, non-crystalline limestone,4 id. at ¶¶ 4, 8; and (3) is
capable of taking a polish. See Pl.’s Mem. Supp. Mot. Summ. J. (“Pl.’s Mem.”) at 3 (“These are
hard stones comprised of calcium carbonate and are capable of taking a high polish.”); Def.’s
Mem. Supp. Cross-Mot. Summ. J. and Opp’n to Pl.’s Mot. Summ. J. (“Def.’s Resp.”) at 5 (“[N]o
dispute exists about the essential nature and material characteristics of the merchandise . . . .”).
Classification of merchandise under the HTSUS is governed by the General Rules of
Interpretation (“GRI”). See Carl Zeiss, Inc. 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)) (“The HTSUS General Rules of Interpretation (GRI) and the Additional U.S. Rules of
4
Customs’s laboratory analysis of the stones identified as “Crema Marfil,” “Negro
Marquina,” and “Rojo Alicante” found them to be “composed of . . . other calcareous stone
(limestone)”; analysis of the stone identified as “Emperador Marron” found it to be “other
calcareous stone (dolomitic limestone)”; analysis of stone identified as “Beige Marble” or
“Botticino” found it to be “composed of limestone . . . .” See Parties’ Agreed Statement of
Material Undisputed Facts at ¶ 4.
CONSOL. COURT NO . 98-02961 PAGE 5
Interpretation (U.S. GRI) govern the proper classification of all merchandise and are applied in
numerical order.”). GRI 1 states that “for legal purposes, classification shall be determined
according to the terms of the headings and any relative section or chapter notes . . . .” GRI 1.
GRI 6 states that “the classification of goods in the subheadings of a heading shall be determined
according to the terms of those subheadings and any related subheading notes and, mutatis
mutandis, to the [General Rules of Interpretation] on the understanding that only subheadings of
the same level are comparable.” GRI 6. Furthermore, “[w]hen . . . a tariff term is not defined in
either the HTSUS or its legislative history, ‘the term’s correct meaning is its common meaning.’”
Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001) (quoting Mita, 21
F.3d at 1082). “The common meaning of a term used in commerce is presumed to be the same as
its commercial meaning.” Id. (citing Simod Am. Corp. v. United States, 872 F.2d 1572, 1576
(Fed. Cir. 1989)). “To ascertain the common meaning of a term, a court may consult
‘dictionaries, scientific authorities, and other reliable information sources’ and ‘lexicographic
and other materials.’” Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d
1268, 1271 (C.C.P.A. 1982); Simod, 872 F.2d at 1576). Finally, as an aid to understanding the
meaning of a tariff term, “a court may refer to the Explanatory Notes . . . which do not constitute
controlling legislative history but nonetheless are intended to clarify the scope of HTSUS
subheadings and to offer guidance in interpreting subheadings.” Mita, 21 F.2d at 1082 (citing
Lynteq, Inc. v. United States, 976 F.2d 693, 699 (Fed. Cir. 1992)); see Harmonized Commodity
Description and Coding System (3d ed. 2002) (“Explanatory Notes” or “EN”).
Both parties agree that the term “marble” is not defined by either the HTSUS or its
CONSOL. COURT NO . 98-02961 PAGE 6
legislative history. This being the case, Plaintiff argues that: (1) the common meaning of the
term, as that term is understood commercially, should be employed; and (2) such meaning was
used under the predecessor statute to the HTSUS, the Tariff Schedule of the United States
(“TSUS”), and that there is no evidence that Congress intended to change its meaning. See Pl.’s
Mem. at 5 (“Customs used to classify stones under the term marble that met the common trade
definition—all stones that took a polish as marble.”). Plaintiff contends that, with the adoption
of the HTSUS, Customs changed its position so that now “all stone terms used in the HTSUS
should be construed to cover only those stones meeting the geological definition of the term and
not the common and commercial meaning of the term . . . .” Id. at 5–6. Plaintiff argues that
Customs’s change in position is not in accordance with law because it has “cite[d] no authority
for this proposition in the HTSUS itself, in the legislative history or in the case law. Instead, the
only rationale for its change is a general notion that, whenever possible, it should harmonize the
treatment of stones with the treatment accorded by other countries.” Id. at 6. Plaintiff further
contends that “[a]s Congressional legislative history and case law make clear, absent clear and
specific evidence to the contrary, a tariff term is construed the same way under the HTSUS as it
was under the TSUS.” Id. at 6 (citing Anhydrides & Chems., Inc. v. United States, 130 F.3d
1481, 1484 (Fed. Cir. 1997)).
The Government counters that the court should reject Plaintiff’s arguments for several
reasons. First, it contends that the court should afford deference to Customs’s interpretation of
the term “marble” as contained in a Customs “Informed Compliance Publication,” What Every
Member of the Trade Community Should Know About: Classification of Marble (“Classification
CONSOL. COURT NO . 98-02961 PAGE 7
of Marble”), because of this publication’s “power to persuade.” Def.’s Resp. at 7–8; see United
States v. Mead Corp., 533 U.S. 218, 228 (2001) (“Mead III”); see Mead III (quoting Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944)) (“The weight [accorded to an administrative] judgment in
a particular case will depend upon the thoroughness evident in its consideration, the validity of
its reasoning, its consistency with earlier and later pronouncements and all those factors which
give it power to persuade, if lacking power to control.” (bracketing in original)). Second, the
Government argues that the common meaning of the term “marble” is limited to the geological
meaning of that term. Def.’s Resp. at 9. Third, the Government argues that the Explanatory
Notes to the HTSUS provide evidence that the term “marble” is to be narrowly construed as only
covering geological marble. Id. at 16–17. Finally, the Government contends that the
“interpretation of the tariff term ‘marble’ under the TSUS does not control the interpretation of
that term under the HTSUS.” Id. at 17.
Thus, the question before the court is the meaning of the term “marble” as used in
HTSUS heading 6802.
DISCUSSION
A. The common meaning of the term “marble” includes stones that would not be
considered geological marble
Plaintiff argues that interpreting the term “marble” under HTSUS subheading 6802 in
accordance with the geological meaning of the term “marble” is incorrect. Plaintiff states that
[w]hile courts will normally consider ‘scientific authorities’ as one
of the resources in determining the common and commercial
CONSOL. COURT NO . 98-02961 PAGE 8
meaning of a tariff term, tariff terms are not to be construed
according to their scientific meaning where that meaning differs
from the common and commercial meaning, in the absence of
legislative intent.
Pl.’s Mem. at 10 (emphasis in original) (citing Alexandria Int’l, Inc. v. United States, 13 CIT 689,
692 (1989)). Plaintiff argues that courts have adopted this policy because of the nature of
commerce and those who work within it. See id. at 11 (quoting Two Hundred Chests of Tea, 22
U.S. 430, 438 (1824)) (“The object of the duty laws is to raise revenue, and for this purpose to
class substances according to the general usage and known denominations of trade. . . .
[Congress] did not suppose our merchants to be naturalists, or geologists, or botanists. It applied
its attention to the description of articles as they derived their appellations in our own markets, in
our domestic as well as our foreign traffic.”); id. (quoting Meyer & Lange v. United States, 6 Ct.
Cust. 181, 182 (1915)) (“[T]ariff acts are drafted not in the terms of science, but in the language
of commerce, which is presumptively that in common use . . . .”).
For its part, the Government agrees that the common meaning of the term marble is
controlling but argues such meaning is narrower than that claimed by Plaintiff. The Government
contends that “the common meaning of the term supports the plain language of the HTSUS.
Specifically, most dictionaries define the term marble as covering only limestone in a crystalline
state, achieved through metamorphosis.” Def.’s Resp. at 12 (citing The Random House
Dictionary of the English Language 875 (1969) (defining “marble” as “limestone in a more or
less crystalline state, and capable of taking a high polish . . . .” (emphasis added)); Oxford
Dictionary on CDROM, Version 2.0 (1999) (defining “marble” as “[l]imestone in a crystalline
CONSOL. COURT NO . 98-02961 PAGE 9
(or, less strictly, also granular) state and capable of taking a polish.” (emphasis added))). Even
though neither of the cited sources seem to make its point, the Government insists that since
“dictionary definitions provide that marble is narrowly described as limestone in a crystalline
state achieved through metamorphosis[, b]ecuase [Plaintiff’s] stones do not meet this definition,
they cannot be classified as marble under the HTSUS.” Id. at 14.
The court does not agree that the meaning of the term “marble” as enacted in the HTSUS
is limited to the geological definition of that term. While some general usage dictionaries may
define “marble” as a type of stone that is geologically distinct from non-crystalline limestone, it
is beyond debate that the commercial meaning of the term “marble” includes the subject
merchandise, as it is “marble” within the argot of the trade.5
Ordinarily “[t]he common meaning of a term used in commerce is presumed to be the
same as its commercial meaning.” Rocknel, 267 F.3d at 1356; see also, U.S. Dep’t of the
Interior, A Dictionary of Mining, Mineral, and Related Terms 680 (1968) (“Marble. Denotes a
metamorphic rock composed essentially of calcite, dolomite, or a combination of the two, but
long usage of the term by the quarry industry also includes serpentines, alabaster, onyx,
travertines, and some granites . . . . Commercially, any limestone that is sufficiently hard and
coherent to take a good polish is called a marble.” (emphasis added)). Moreover, under the
5
Because the Government nowhere addresses the issue of what the commercial
definition of the term “marble” is, the court understands that the Government concedes the point
that such definition includes the subject merchandise. Indeed, it is difficult to see how the
Government could argue otherwise as Customs admits that “polished limestone (or limestone
capable of taking a polish) is often called ‘marble’ in the trade.” Classification of Marble at 4.
CONSOL. COURT NO . 98-02961 PAGE 10
TSUS Customs established that certain non-crystalline limestones were included in the term
“marble” where such stones met the commercial meaning of that term. See Headquarters Ruling
Letter (“HRL”) 087014 (June 12, 1990) (“Under the TSUS, all stones that polish, whether or not
such stone met the technical definition of marble, were classified by Customs as marble.”);
Classification of Marble at 2. Once the common and commercial meaning of a tariff term has
been ascertained, Customs is obliged to classify merchandise in accordance with such meaning
absent “clear evidence” that such meaning has changed. Lonza, Inc. v. United States, 46 F.3d
1098, 1106–07 (Fed. Cir. 1995) (citing United States v. Great Pac. Co., 23 C.C.P.A. 319, 324
(1936)) (“The common meaning of a tariff term, once established, remains controlling until a
subsequent change in statute compels a revised construction of the term’s meaning. . . . Absent
clear evidence of legislative intent to embrace an alternative statutory definition, and in light of
its historical pedigree, the court cannot help but conclude that the TSUS definition . . . survives
as the common and commercial meaning of the term under the HTS.”).6 Thus, while definitions
of tariff terms “established” under the TSUS may not be controlling under all circumstances, they
6
Courts have had occasion to examine the interrelation between a determined
meaning of a tariff term and congressional intent. See, e.g., Rico Imp. Co. v. United States, 469
F.2d 699, 704 (C.C.P.A. 1972) (Lane, J., dissenting) (citing Steinhardt & Bros. v. United States,
9 Ct. Cust. 62, 66 (1919); Great Pac., 23 C.C.P.A. at 324) (“The predecessor of this court had
occasion to consider the scope of the term ‘wood’ . . . . The common meaning of ‘wood[]’ . . . is
presumed to have continued unless it has been changed by subsequent legislation.”); John C.
Rogers & Co. v. United States, 436 F.2d 1034, 1036 n.1 (C.C.P.A. 1971) (citing Great Pac., 23
C.C.P.A. at 324 (“‘A common meaning, having been once established and determined by a
court, will be presumed to continue until the language is changed by subsequent legislation,’ by
which we think the court meant only that a previous determination that the common meaning of a
tariff term as of the relevant date included or excluded certain articles would be precedent when
the same issue was raised in another case. . . .” (emphasis in original, citation omitted)); Sears,
Roebuck & Co. v. United States, 46 C.C.P.A. 79, 83 (1959) (citing Great Pac., 23 C.C.P.A. at
324); United States v. Pac. Butchers Supply Co., 22 C.C.P.A. 355, 358 (1934) (citing United
States v. Ben Felsenthal & Co., 16 Ct. Cust. 15 (1928)).
CONSOL. COURT NO . 98-02961 PAGE 11
remain vital in the HTSUS absent evidence that Congress intended a change. See Anhydrides,
130 F.3d at 1484 (citing Lonza, 46 F.3d at 1107; Beloit Corp. v. United States, 18 CIT 67, 84,
843 F. Supp. 1489, 1502 (1994)) (“In light of the administrative mandate and legislative purpose
that conversion to the harmonized system would leave existing duty rates undisturbed as much as
possible, the courts have consulted the classification history under the TSUS as a guide to
resolving uncertainties that have arisen because of the nomenclature.”); see Omnibus Trade and
Competitiveness Act of 1988, H.R. Rep. No. 100-576 (the “Trade Act”), at 548 (1988), reprinted
in 1988 U.S.C.C.A.N. 1547, 1581. Thus, the common and commercial term “marble,” as
established in the TSUS as including non-crystalline limestone that can take a polish, survives
with the same meaning in the HTSUS unless there is “clear evidence of legislative intent to
embrace an alternative statutory definition . . . .” Lonza, 46 F.3d at 1107.
B. There is no indication that Congress intended to change the meaning of the term
“marble” under the HTSUS
In the instant case it is clear that Customs, following the adoption of the HTSUS, changed
its position as to what types of stone fall within the meaning of the term “marble.” Customs
explained that
under the newly-enacted HTSUSA, whose basic provisions are
common to the tariffs of all of the nations using the Harmonized
Commodity Description and Coding System, it is imperative that
the United States, whenever possible, define the various tariff
terms in a manner consistent with all nations utilizing the
HTSUSA.[7] It is for this reason that we have settled upon the
commonly-accepted geological definition of various stones to
determine the proper classification under the HTSUSA.
7
Probably should read “Harmonized Commodity Description and Coding System.”
CONSOL. COURT NO . 98-02961 PAGE 12
HRL 087014; see Classification of Marble at 2. Thus, Customs concluded that it should no
longer consider the HTSUS term “marble” to encompass all merchandise that was understood to
be “marble” in the trade, or classified as “marble” under the TSUS. Rather, Customs decided
that, following the enactment of the HTSUS, the term “marble” included only stone that met the
geological definition of that term. While not specifically acknowledging this change, the
Government argues that there are two reasons why this court should sanction Customs’s new
position: (1) Customs’s interpretation of the tariff term, as set out in its publication Classification
of Marble, is entitled to judicial deference; and (2) the plain language of the HTSUS shows that
Congress intended a narrow definition of the term “marble.”
1. The publication Classification of Marble is not entitled to Skidmore
deference
The Government insists that the changes in the tariff schedules resulting from the
enactment of the HTSUS evince the congressional intent to exclude the subject merchandise
from being classified as marble. Relying on this perceived congressional intent, Customs
notified importers by means of its publication Classification of Marble that it would henceforth
employ a “geological” standard for classifying marble. Customs explained that
[n]umerous Headquarters rulings have held that stone is
classifiable based on geological definitions. . . . Therefore, any
HTSUS subheading that refers to a particular stone by name will
only cover products that conform to the geological definition for
that stone. Often a product which may be called by the name of a
specific stone in the trade (i.e., a “commercial” definition) fails to
meet the geological definition of that stone; this type of item may
not be classified under the HTSUS provision for the specific stone.
CONSOL. COURT NO . 98-02961 PAGE 13
Classification of Marble at 2 (citations omitted).8 Customs further explained:
The Headquarters rulings that follow geological definitions are
supported by the Explanatory Notes, which define stones in terms
of their geological nature. Thus, the Explanatory Notes to heading
2515, indicate that serpentine is not classified as marble even
though it is often called “marble” in the trade, since serpentine and
marble are geologically different.
Furthermore, the Explanatory Notes to heading 2516, indicate that
ecaussine may not be classified as granite even though it is often
called “granite” in the trade, since it is a geologically distinct
stone. . . .
The Explanatory Notes to heading 6810 list examples of the types
of stones which may be agglomerated with binders. These
examples include marble, limestone and serpentine. By listing
these stones separately, the Explanatory Notes indicate that marble,
limestone and serpentine are regarded as distinct stones (because
they are geologically distinct) even though limestone and
serpentine are frequently called “marble” in the trade.
8
In support of the position that “numerous Headquarters rulings have held that
stone is classifiable based on geological definitions” Customs cites several rulings. See
Classification of Marble at 2 (citing HRLs 085266 (Sept. 20, 1989) (classification of non-
crystalline limestone); 085968 (Mar. 14, 1990) (classification of polished limestone); 952679
(Jan. 26, 1993) (classification of geological serpentine (carbonated)); 955738 (Mar. 30, 1994)
(classification of geological serpentine); 950057 (Oct. 31, 1991) (classification of carved
serpentine); 086894 (Sept. 23, 1990) (classification of basalt and diorite); 951525 (Aug. 25,
1992) (classification of syenite)). While Customs may have consistently maintained in these
rulings that the geological composition of stone to be classified as marble is controlling under the
HTSUS, none of the cited HRLs predate the enactment of the HTSUS or otherwise address the
proper definition of the term “marble” as used in the TSUS. Indeed, the progenitor of Customs’s
current position, HRL 085266, provides no basis for Customs’s change of position but merely
states, in full, “The geological definition is used in determining the tariff classification of the
merchandise at issue [marble] under the HTSUSA.” HRL 085266 at 2. While later rulings give
some indication of why Customs perceived a need to change its position, see, e.g., HRL 087014
(“[U]nder the newly-enacted HTSUSA, whose basic provisions are common to the tariffs of all
of the nations using the Harmonized Commodity Description and Coding System, it is imperative
that the United States, whenever possible, define the various tariff terms in a manner consistent
with all nations utilizing the HTSUSA.”), Customs nowhere gives any specific indication of its
authority to do so.
CONSOL. COURT NO . 98-02961 PAGE 14
Id. at 2–3.9
The Government argues that the reasoning in Classification of Marble is entitled to
Skidmore deference because it is “consistent, thorough and persuasive.” Def.’s Resp. at 8 (citing
Skidmore, 323 U.S. at 139–40). The Government further argues that because this publication
“carefully explains the agency’s position to the trade community, and supports its reasoning with
geological findings . . . this Court should defer to Customs’s publication interpreting the meaning
of the tariff term ‘marble.’” Id. The court does not agree. If it were the case that the term
“marble” had not been clearly invested with a common and commercial meaning under the
TSUS, the Government’s argument might have some merit. However, because the common and
commercial meaning of the term “marble” was “established” under the TSUS,10 Customs must
continue to employ that meaning unless it can show that there is “clear evidence” of
congressional intent to the contrary. Lonza, 46 F.3d at 1107. Here, the Government has failed to
9
That “serpentine” is specifically named in EN 25.15 tends to weaken the
Government’s position that the term “marble” is limited to only stone meeting the geological
definition of that term, and to bolster Plaintiff’s position. Specifically, EN 25.15 states that
“[t]his heading . . . excludes: (a) Serpentine or ophite (a magnesium silicate sometimes called
marble) . . . .” EN 25.15 (first emphasis in original; second emphasis added). By indicating that
the term “marble” as used in subsection 2515 does not include serpentine the drafters of the
Explanatory Notes tacitly acknowledge that the term “marble” as used in the HTSUS is broader
than the geological term, but provide guidance that one type of non-calcareous stone, i.e.,
serpentine, is specifically removed from the meaning of the term “marble” under subheading
2515. See EN 25.16 (stating subheading 2516 “includes . . . serpentine marble . . . which, being a
natural form of magnesium silicate, cannot be classified in heading 25.15”).
10
The Government nowhere specifically takes issue with Plaintiff’s allegation that
Customs used the commercial meaning of the term “marble” under the TSUS and, indeed, seems
to concede this point. See Def.’s Resp. at 17 (citing Pl.’s Mem. at 5) (“Under the TSUS,
Intercontinental points out that Customs classified as marble ‘all stones that took a polish as
marble.’”).
CONSOL. COURT NO . 98-02961 PAGE 15
demonstrate that Congress, by the adoption of the HTSUS, intended to change the common and
commercial meaning of the term “marble.” Thus, there being an “established” common and
commercial meaning of the term “marble,” and no evidence of congressional intent to change it,
the Government cannot claim deference as a reason for this court to work that change.
Finally, while Customs’s practice, as set out in Classification of Marble, may have been
consistent since the passage of the HTSUS, the court does not find that this document itself has
the “power to persuade” such that it should be accorded deference. Beyond its statement that “it
is imperative that the United States, whenever possible, define the various tariff terms in a
manner consistent with all nations utilizing the HTSUSA,” see HRL 087014, Customs provides
no further reasoning in support of its position. Indeed, this statement does not constitute
thorough or valid reasoning but merely a justification. A mere desire on the part of Customs to
be “consistent with all nations” cannot be substituted for congressional intent. Thus, the
publication lacks the valid reasoning necessary for it to have the “power to persuade.” See
Jewelpak Corp. v. United States, 297 F.3d 1326, 1331 (Fed. Cir. 2002) (citing Mead III, 533 U.S.
at 228); Mead IV, 283 F.3d at 1346 (“Under Skidmore, a classification ruling receives a measure
of deference proportional to its ‘power to persuade.’ That power to persuade depends on the
thoroughness evident in the classification ruling, the validity of its reasoning, its consistency with
earlier and later pronouncements, the formality attendant the particular ruling, and all those
factors that give it power to persuade.” (citations and footnote omitted)).
CONSOL. COURT NO . 98-02961 PAGE 16
2. The plain language of the HTSUS does not show Congress intended a
narrow definition of the tariff term “marble”
The Government argues that “the plain language of the tariff schedule reflects Congress’s
intent to limit the term ‘marble’ to only those stones that meet a narrow and precise scientific
definition.” Def.’s Resp. at 10. Although its argument is couched in terms of plain meaning, the
Government nonetheless urges that “this Court may consider other related provisions of the
HTSUS” in order for this plain meaning to be properly understood. Id. (citing Item Co. v. United
States, 19 CIT 1000, 1005 (1994), aff’d 98 F.3d 1294 (Fed. Cir. 1996)) (“To help in resolving
[this] conflict . . . the Court turns to the related provisions of Chapter 63.”). Here, the provision
at issue is Chapter 68 which provides, in relevant part:
6802 Worked monumental or building stone (except
slate) and articles thereof, other than goods of
heading 6801; mosaic cubes and the like, of natural
stone (including slate), whether or not on a backing;
artificially colored granules, chippings and powder,
of natural stone (including slate): . . .
Other:
6802.91 Marble, travertine and alabaster:
Marble:
6802.91.05 Slabs
6802.91.15 Other
6802.91.20 Travertine . . .
6802.91.30 Alabaster
6802.92.00 Other calcareous stone . . . .
CONSOL. COURT NO . 98-02961 PAGE 17
HTSUS Chapter 6802.11 Upon reading this provision it is apparent that there are no words that
modify or limit the term “marble” to its geological meaning or otherwise.12 The Government
11
Travertine is variously defined as “a mineral consisting of a massive usu[ally]
layered calcium carbonate (as aragonite or calcite) formed by deposition from spring waters or
esp. from hot springs,” Webster’s Unabridged Third New International Dictionary 2433 (1981),
or “a whitish or light-coloured concretionary limestone, usually hard and semi-crystalline,
deposited from water holding lime in solution . . . .” Oxford English Dictionary; see also Pl.’s
Mem. Appx. A5, American Society for Testing and Materials, Standard Terminology Relating to
Dimension Stone (“Standard Terminology”) at 20 (defining travertine as “a variety of crystalline
or microcrystalline limestone distinguished by layered structure. Pores and cavities commonly
are concentrated in some of the layers, giving rise to an open texture.”); Pl.’s Mem. Appx. A7,
Stone World Buyer’s Guide 2000 at 133 (defining travertine as “a form of limestone precipitated
from ground waters, as in caves or orifices of springs . . . .”). Indeed, in another publication
included with Plaintiff’s submissions, “travertine” and “marble” are broken out into separate
categories. See Pl.’s Mem. Appx. A4, American Society for Testing and Materials, Standard
Specification for Marble Dimension Stone (Exterior), reprinted in Marble Institute of America,
Dimension Stone Design Manual IV (“Standard Specification”) M-17 (“Available Marble
Varieties”), M-23 (“Available Travertine Varieties”) (1991) . The court notes that all of the
subject merchandise here at issue is listed within the “marble” section of this publication, see id.
at M-19, -20, -21, and there is no argument that the subject merchandise is, in fact, travertine.
12
A review of Chapter 68 in its entirety shows that there is no support for the
argument that the term “marble” as contained in Chapter 68 was intended to be read narrowly by
reference to the Chapter Notes or Additional U.S. Notes for Chapter 68, or heading 6802 itself.
The Chapter Note that specifically addresses heading 6802 states that “[i]n heading 6802 the
expression ‘worked monumental or building stone’ applies not only to the varieties of stone
referred to in heading 2515 or 2516, but also to all other natural stone (for example, quartzite,
flint, dolomite and steatite) similarly worked . . . .” Chapter 68 Note 2 (emphasis in original).
This Chapter Note simply states that heading 6802 broadly covers all types of “natural stone”
provided for in Chapter 25, including those not specifically enumerated within the headings of
that Chapter. See HTSUS headings 2506 (quartzite), 2518 (dolomite), 2526 (natural steatite),
2530 (“mineral substances not elsewhere specified or included”). The Additional U.S. Notes
provide no further support that the term “Marble” should be read narrowly; rather, they only
provide a definition for the term “slabs” as contained in heading 6802. See Additional U.S. Note
1. Furthermore, there is no support for construing the term “marble” narrowly, as the term
appears in heading 6802, by reference to the heading itself. This heading encompasses “Worked
monumental or building stone (except slate) and articles thereof, other than goods of heading
6801; mosaic cubes and the like, of natural stone (including slate), whether or not on a backing;
artificially colored granules, chippings and powder, of natural stone (including slate) . . . .”
HTSUS 6802. There are no modifying words or phrases within the heading that limit the term
(continued...)
CONSOL. COURT NO . 98-02961 PAGE 18
argues, however, that “[t]o understand the meaning of the terms ‘marble’ and ‘other calcareous
stone’ under Heading 6802, this Court must first examine Chapter 25, the section of the HTSUS
in which Heading 2515 appears, which provides for the same stones but presented in an
unworked state.” Def.’s Resp. at 10; see HTSUS Chapter 68 Note 2 (“In heading 6802 the
expression ‘worked monumental or building stone’ applies not only to the varieties of stone
referred to in heading 2515 or 2516 [(“Granite, porphyry, basalt, sandstone and other
monumental or building stone”)], but also to all other natural stone (for example quartzite, flint,
dolomite and steatite) similarly worked; it does not, however, apply to slate.” (emphasis in
original)). The Government thus directs the court’s attention to heading 2515, which provides, in
relevant part:
2515 Marble, travertine and other calcareous monumental
or building stone of an apparent specific gravity of
2.5 or more, and alabaster, whether or not roughly
trimmed or merely cut, by sawing or otherwise, into
blocks or slabs of a rectangular (including square)
shape:
Marble and travertine:
2515.11.00 Crude or roughly trimmed
2515.12 Merely cut, by sawing or otherwise,
into blocks or slabs of a rectangular
(including square) shape:
2515.12.10 Marble
2515.12.20 Travertine
12
(...continued)
“marble” to the geological meaning of that term. Finally the Government presents no argument
or evidence that the other headings or subheadings of Chapter 68 provide further guidance as to
the meaning of the term “marble” in heading 6802.
CONSOL. COURT NO . 98-02961 PAGE 19
2515.20.00 Other calcareous monumental or building
stone; alabaster . . . .
HTSUS 2515. The Government argues that “the heading which provides for marble, Heading
2515, is . . . limited by density, and explicitly describes . . . ‘calcareous stones,’ a reference to the
chemical nature of the stone, i.e., being composed of calcium carbonate.” Def.’s. Resp. at 11.
The Government continues that within Chapter 25 “marble is listed under subheading
2515.12.10. Another calcareous stone, travertine, is distinguished by being named in the heading
and listed under a separate provision, subheading 2515.12.20. As a result, the plain language of
the HTSUS distinguishes between these two types of calcareous stones.” Id.13
The court does not agree that the arguments advanced by the Government support its
contention that term “marble” is limited to its “geological” meaning by “restrictive technical
language” for several reasons. First, while heading 2515 does cover marble, travertine, and
“other calcareous monumental or building stone of an apparent specific gravity of 2.5 or more,”
there is no indication from the Chapter Notes, the Additional U.S. Notes, or the headings
themselves that the terms of Chapter 25 are to be construed in accordance with the geological
13
In support of its argument the Government contends that “Chapter 25 . . . defines
every article it covers using restrictive technical language.” Def.’s Resp. at 10–11 (citing
headings 2501 (salt and pure sodium chloride), 2511 (natural barium sulfate, and natural barium
carbonate), 2512 (siliceous fossil meals), and 2519 (natural magnesium carbonate, fused
magnesia, dead-burned magnesia)). Examining the language of the statute, however, the terms
contained therein do not uniformly employ “scientific” or “restrictive technical language.” For
example, one heading cited by the Government is the classification heading for “salt” and
includes “table salt and denatured salt.” See HTSUS 2501.00. The inclusion of this latter
language provides evidence that the term “salt” is not necessarily identified by its chemical
composition or constrained by “restrictive technical language,” but may include, for instance,
merchandise commonly known as table salt.
CONSOL. COURT NO . 98-02961 PAGE 20
meaning of those terms.14 Second, that the HTSUS specifically names both “marble” and
“travertine” within heading 2515 does not help the Government’s argument that the “other
calcareous stone” provision of heading 6802 completely encompasses all non-crystalline
limestone capable of taking a polish—including that understood in the trade as “marble.” While
it is true that “travertine”—a semi-crystalline calcareous stone usually known in the trade as
“marble,” see Standard Terminology at 20 (defining travertine as “a variety of crystalline or
microcrystalline limestone . . . .”); A Dictionary of Mining, Mineral, and Related Terms 680
(stating travertine is considered “marble” in the trade)—is specifically named in the HTSUS, this
is simply not conclusive evidence that Congress intended to: (1) commence the use of geological
definitions for the classification of other stone; or (2) classify all non-crystalline limestone
capable of taking a polish as “Other . . . calcareous stone.”15 Indeed, a more logical conclusion is
that, although travertine is generally deemed “marble” in the trade, it is sometimes distinguished
from “marble.” For example, travertine was classified under a separate heading from “marble”
within Chapter 5 of the TSUS. See TSUS headings 514.51–81 (“Marble, breccia, and onyx, and
articles of one or more of these substances”), 515.24 (“Travertine and articles of travertine”); see
also Standard Specification at M-17 (“Available Marble Varieties”), M-23 (“Available
Travertine Varieties”). Thus, it is likely that Congress sought to ensure, in the event there was
14
The Government’s argument that the scope of heading 2515 provides evidence of
congressional intent concerning the scope of heading 6802 is undercut by these headings not
classifying similar merchandise in a consistent manner. For example, pursuant to heading 2515
“alabaster” is grouped with “other calcareous stone,” whereas pursuant to heading 6802
“alabaster” is grouped with “marble and travertine.” Compare HTSUS 2515.12 with HTSUS
6802.91.
15
This finding is not meant to suggest that by the adoption of the HTSUS Congress
did not intend that other provisions should not be governed by geological definitions.
CONSOL. COURT NO . 98-02961 PAGE 21
any confusion on the point, that travertine should be classified within the same subheading as
“marble” and not within the subheading for “other calcareous stone.” Finally, were the court to
accept the Government’s argument that the common meaning of the term “marble” includes only
“limestone in a more or less crystalline state,” see Def.’s Resp. at 12, specifically naming
travertine would be surplussage as travertine—which is a crystalline or microcrystalline
calcareous stone—would necessarily be classified as “marble.”16
16
There is additional support for the proposition that Congress did not intend to alter
the meaning of “marble” as that term was understood under the TSUS such that the subject
merchandise would be excluded from that term under the HTSUS. Under tariff schemes in place
prior to the enactment of the TSUS courts construed the term “marble” as having the geological
meaning of that term. See Bockmann v. United States, 158 F. 807, 808 (1908) (finding certain
imported non-crystalline limestone not to be “marble” because “[t]he best authorities define
marble as a limestone having a granular and crystalline structure. It is crystalline limestone.
Now, according to the weight of the testimony, Hauteville stone is not a crystalline limestone at
all. It is a high-grade limestone, ornamental and polishable; but we think that it is not sufficient
to take it out of the limestone and put [it] into the marble paragraph. It is unquestionably
limestone.”); United States v. Jackson, 1 Ct. Cust. 25, 27 (1910) (finding merchandise to be
marble where it was: (1) “limestone with a crystalline granular structure”; (2) “susceptible of a
high polish”; and (3) “not only decorative and ornamental in effect, but . . . imported into and
used in this country for that purpose . . . .”); United States v. Tompkins Kiel Marble Co., 14 Ct.
Cust. 7, 8–9 (1926) (following Jackson). Here, it is undisputed that under the TSUS Customs
did not limit the term “marble” to the geological meaning of that term. See HRL 087014;
Classification of Marble at 2. Rather, Customs understood the term “marble” to include non-
crystalline limestone that met the commercial meaning of such term, i.e., all limestone capable of
taking a polish. Given that Customs’s interpretation of the term “marble” under the TSUS was at
odds with prior judicial constructions of that term, had it been Congress’s intent to fix the
meaning of the term “marble” to encompass only stone meeting the geological meaning of that
term it would have done so unambiguously.
A comparison of the tariff rates of the TSUS and HTSUS provides further support that
Congress did not intend to exclude the subject merchandise from the term “marble.” As stated in
the the Trade Act, “the HTS fairly reflects existing tariff and quota treatment and that the
conversion is essentially revenue-neutral. . . . [A]ny changes in the rates of duty are
consequential to the process of converting to the new nomenclature . . . .” H.R. Rep. 100-576, at
548, 1988 U.S.C.C.A.N. at 1581. As amplified by the Court of Appeals for the Federal Circuit:
“Customs’ interpretation of the HTSUS classification in a way that would markedly increase the
(continued...)
CONSOL. COURT NO . 98-02961 PAGE 22
C. The Explanatory Notes do not support the Government’s contention that the term
“marble” as used in the HTSUS includes only stone that meets the geological
meaning of that term
The court also finds that the Explanatory Notes to the HTSUS do not support the
Government’s position. While the Explanatory Notes are not binding, they do offer guidance.
Mita, 21 F.3d at 1082. The Explanatory Notes provide as follows:
Marble is a hard calcareous stone, homogeneous and fine-grained,
often crystalline and either opaque or translucent. Marble is
usually variously tinted by the presence of mineral oxides
(coloured veined marble, onyx marble, etc.), but there are white
varieties.
EN 25.15. It is significant that this Explanatory Note states that “Marble is . . . often
crystalline . . . .” In other words, the guidance from the Explanatory Note is that marble is often
crystalline but not always. Thus, the Explanatory Notes suggest that there is no “clear evidence”
that Congress intended to adopt a “geological” definition of the term “marble” that excluded non-
crystalline stone such as the subject merchandise. Lonza, 46 F.3d at 1107. Rather, the
Explanatory Notes suggest that non-crystalline limestone that meets the common meaning of that
term continues to be classified as marble.
16
(...continued)
duty, although there was no prior indication that the rate was intended to undergo a major
increase, is viewed with caution.” Anhydrides, 130 F.3d at 1484 (citing Hemscheidt Corp. v.
United States, 72 F.3d 868, 872 (Fed. Cir. 1995)). Under TSUS subheading 514.61 or 514.65
(1987) marble slabs were assessed a duty of either 2.1 percent ad valorum or 2.8 percent ad
valorum. Under HTSUS subheading 6802.91.05 (1987) marble slabs were assessed a duty of 2.8
percent ad valorum, and under subheading 6802.92.00 (1987) “other calcareous stones” were
assessed a duty of 6.0 percent ad valorum. Thus, Customs’s interpretation of the term “marble”
“is viewed with caution” as it would result in an increase of more than double the duty for the
subject merchandise although there was “no prior indication that the rate was intended to
undergo a major increase . . . .” Anhydrides, 130 F.3d at 1484.
CONSOL. COURT NO . 98-02961 PAGE 23
D. Reorganization of tariff terms in the HTSUS does not suggest that Congress
intended to change the meaning of the term “marble”
Finally, the Government argues that, with respect to the provisions at issue, “the
interpretation of the tariff term ‘marble’ under the TSUS does not control the interpretation of
that term under the HTSUS.” Def.’s Resp. at 17. The Government contends that “classification
under the prior tariff acts is . . . irrelevant because the language of the HTSUS significantly varies
from the previous tariff acts.” Id. at 18 (citing the Trade Act, H.R. Rep. 100-576, 1988
U.S.C.C.A.N. at 1582). Further, the Government contends that “a change in the language of a
statute is generally construed to import a change in meaning unless the contrary is made plainly
to appear in other ways.” Id. at 18 (citing Schott Optical Glass, Inc. v. United States, 11 CIT
899, 678 F. Supp. 882 (1987), aff’d, 862 F.2d 866 (Fed. Cir. 1988); Berns & Koppstein v. United
States, 13 CIT 191 (1989); United States v. Am. Brown Boveri Elec. Corp., 17 C.C.P.A. 329
(1929); Am. Express Co. v. United States, 2 Ct. Cust. 459 (1912)). The court understands the
Government’s argument to be the following: because the language of the HTSUS “significantly
varies” from the TSUS, it is “inappropriate” to rely on the meaning of the term “marble” as
established under that tariff scheme because by enacting the HTSUS Congress intended the term
“marble” to include only stone meeting the geological definition of that term. In support of its
argument that the language of the HTSUS “significantly varies” from that of the TSUS the
Government states:
Under the TSUS, marble appears in Schedule 5, Part 1, under the
superior heading that precedes items 514.51 through 514.81 . . . .
However, under the HTSUS, marble is provided for under a
heading with more limiting language referencing the geological
(“calcareous”) and scientific (“apparent specific gravity of 2.5 or
CONSOL. COURT NO . 98-02961 PAGE 24
more”) nature of stone. Since the HTSUS now explicitly puts
“marble” in a separate subheading from “other calcareous stones,”
Congress showed its intent to narrow the term.
Def.’s Resp. at 19 (citations omitted). In other words, the Government is arguing that because
the term “other calcareous stone” now appears in the HTSUS as a separate subheading from
“marble” the term “marble” has been narrowed to include only natural stone that meets the
geological meaning of that term. Again, the court does not agree.
While the term “marble” is now found in several sections of HTSUS, the court does not
find mere re-enactment to be a “definite change in the nomenclature” of the statute such that the
term “marble” excludes limestone that can take a polish. In this regard, the court finds Toy Biz,
Inc. v. United States, 27 CIT __, Slip Op. 03-02 (Jan. 3, 2003), instructive. In Toy Biz the court
examined Customs’s classification of certain toys identified as “action figures.” It was conceded
by both parties that the subject merchandise constituted “playthings for children”; however, the
question remained whether the subject merchandise was properly classifiable as “dolls” or “other
toys” under the HTSUS. Under the TSUS, the relevant classification heading read: “Dolls, and
parts of dolls including doll clothing,” id. at __, Slip Op. 03-02 at 12; the relevant HTSUS
heading provides: “Dolls representing only human beings and parts and accessories thereof.” Id.
at __, Slip Op. 03-02 at 12–13. The court found that the inclusion of the wording “representing
human beings” to constitute “a definite change in the nomenclature of the ‘dolls’ provision from
the TSUS.” Id. at __, Slip. Op. 03-02 at 13. Here, there is no such “definite change in the
nomenclature” indicating that the term “marble” should be interpreted differently under the
HTSUS from how it was under the TSUS. The term “marble” has merely been re-ordered into
CONSOL. COURT NO . 98-02961 PAGE 25
different sections of the statute. Indeed, there are no new words modifying the term “marble”
such that the term should be given a different meaning from that in the TSUS. See id. Thus, the
court cannot agree that the position of the term “marble” within Chapter 68 provides the
foundation urged by the Government. While HTSUS 2515 covers “other calcareous stone,” and
this provision may include certain types of limestone, there is no showing that the “other”
subheading completely and absolutely brings within its ambit all limestone with an apparent
specific gravity of more than 2.5. The Government simply has not provided “clear evidence of
legislative intent to embrace an alternative statutory definition” of the common and commercial
term “marble” under the HTSUS. Lonza, 46 F.3d at 1107.
CONCLUSION
The court finds that Customs improperly classified the subject merchandise as “other
calcareous stone” pursuant to HTSUS subheading 6802.92.00. In addition, the court finds that
the subject merchandise is properly classified as “marble slabs” under HTSUS subheading
6801.91.05. Therefore, the court grants Plaintiff’s motion for summary judgment and denies the
Government’s cross-motion for summary judgment. The parties are hereby ordered to settle and
file with the court a proposed form of judgment in conformity with this opinion within thirty days
of the date of this order.
______________________________
Richard K. Eaton
Dated: April 30, 2003
New York, New York
ERRATUM
Intercontinental Marble Corporation v United States, Court No. 98-02961, Slip-Op 03-47, dated
April 30, 2003.
Page 1:
Counsel for Defendant the United States should read as follows:
Robert D. McCallum, Jr., Assistant Attorney General, Civil Division, United States
Department of Justice; John J. Mahon, Acting Attorney in Charge, International Trade Field
Office (Harry A. Valetk); Chi S. Choy, of counsel, Office of Assistant Chief Counsel,
International Trade Litigation.
May 14, 2003