Witex, U.S.A., Inc. v. United States

Slip Op. 08-99

United States Court of International Trade

WITEX, U.S.A., INC., ET AL.,

Plaintiff,

Before: Pogue, Judge
v. Consol. Court No. 98-00360

UNITED STATES,

Defendant.

[Judgment for Defendant]

Decided: September 18, 2008

Grunfeld Desiderio Lebowitz, Silverman, & Klestadt, LLP (Curtis
W. Knauss), Aitken Irvin, LLP (Bruce Aitken, Bruce de Grazia, and
Virginie Lecaillon (consultant)), for the Plaintiff.

Gregory G. Katsas, Assistant Attorney General, Barbara S.
Williams, Attorney in Charge, International Trade Field Office,
Amy M. Rubin, Trial Attorney, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, Yelena Slepak, Attorney,
Office of Assistant Chief Counsel, U.S. Customs and Border
Protection, for Defendant.

OPINION

Pogue, Judge: This case involves the proper meaning of the

term “tileboard” as used in subheading 4411.19.30 of the harmonized

Tariff Schedule of the United Stated (1997) (“HTSUS”). Plaintiffs,

Witex, U.S.A., Inc. and Mannington Mills (“Witex”), challenge the
Consol. Court No. 98-00360 Page 2

United States Customs Service’s1 (“Customs” or “Government”)

liquidation of its laminated floor panels (“merchandise”), claiming

that the merchandise should be liquidated as “tileboard” under

heading 4411.19.302, HTSUS, and therefore duty free. The Government

counters that Witex’s product is not “tileboard” and therefore

should be classified under the basket, “[o]ther,” provision for

1
Effective March 1, 2003, the United States Customs Service
was renamed the United States Bureau of Customs and Border
Protection. See Homeland Security Act of 2002, Pub. L. No. 107-
296 § 1502, 2002 U.S.C.C.A.N. (116 Stat.) 2135, 2308;
Reorganization Plan Modification for the Department of Homeland
Security, H.R. Doc. No. `08-32, at 4 (2003).
2
4411 Fiberboard of wood or other ligneous
materials, whether or not bonded with resins
or other organic substances:
Fiberboard of a density
exceeding 0.8 g/cm3:
4411.11.00 Not mechanically worked
or surface covered

* * *

4411.19 Other:
4411.19.20 Not surface covered (except
for oil treatment)

* * *

Other:
4411.19.30 Tileboard which has been
continuously worked along
any of its edges and is
dedicated for use in the
construction of walls,
ceilings or other parts
of buildings

4411.19.40 Other
Consol. Court No. 98-00360 Page 3

fiberboard with a density greater than 0.8 g/cm3, and Witex’s

merchandise should be assessed a duty of 6% ad valorem. See

subheading 4411.19.40, HTSUS. As is apparent, both of these claimed

subheadings are subheadings to heading 4411, for “[f]iberboard.”

In its prior decision in this case, Witex, U.S. Inc., et. al.v.

United States, 28 CIT 1907 353 F. Supp. 2d 1310, (2004) (“Witex I”)

the court held that Witex’s merchandise is classifiable as

fiberboard under HTSUS heading 4411, and so must be classified under

either subheading 4411.19.30 or 4411.19.40. The court also rejected

cross-motions for summary judgment. A trial was held on October 26-

27, 2005.3 The court has exclusive jurisdiction over this matter

under 28 U.S.C. § 1581(a)(2000). For the reasons given below, the

court sustains Customs’ classification of the goods in question

under HTSUS 4411.19.40, concluding that Witex’s laminated floor

panels are not tileboard.4

Applicable Standard

“The proper scope and meaning of a tariff classification

3
This case was stayed, prior to trial, while the parties
sought to resolve the matter. That proposed resolution having
failed, the court must now decide the merits of the case.
4
The court once again notes the Government’s objections as
to whether Witex has sufficiently proved the identity of its
merchandise, i.e., to which type of panels, or from what
collection, the contested merchandise belonged. However, because
the court finds that all of the merchandise that could possibly
be at issue here is correctly classified under HTSUS heading
4411.19.40, we need not address this issue.
Consol. Court No. 98-00360 Page 4

term is a question of law . . . while determining whether the goods

at issue fall within a particular tariff term as properly construed

is a question of fact.” Franklin v. United States, 289 F.3d 753,

757 (Fed. Cir. 2002) (citations omitted). A Customs’ classification

decision is subject to de novo review as to the meaning of the

tariff provision, pursuant to 28 U.S.C. § 2640, but may be accorded

a “respect proportional to its ‘power to persuade.’” United States

v. Mead, 533 U.S. 218, 235 (2001) (quoting Skidmore v. Swift & Co.,

323 U.S. 134, 140 (1944)).

Discussion

The analysis of “the proper classification of merchandise

entering the United States is directed by the General Rules of

Interpretation (‘GRIs’) of the HTSUS and the Additional United

States Rules of Interpretation.” Orlando Food Corp. v. United

States, 140 F.3d 1437, 1439 (Fed. Cir. 1998). According to the

GRIs, a court must determine the appropriate heading, and then,

“[o]nly after determining that a product is classifiable under the

heading should the court look to the subheadings to find the correct

classification for the merchandise.” Id. at 1440 (citing GRI 1, 6,

HTSUS). As the court has already determined that the proper heading

for Witex’s merchandise is 4411 (Witex I at 1319), we now turn to

the question of whether the merchandise in question is properly
Consol. Court No. 98-00360 Page 5

classified under subheading 4411.19.30 or rather 4411.19.40.5

Both 4411.19.30 and 4411.19.40 cover fiberboard products with

densities greater than 0.8 g/cm3 which are surface covered by more

than an oil treatment. Heading 4411.19.40 is the “basket provision”

that applies to all products meeting these standards that do not

fall under other subheadings. Subheading 4411.19.30, in turn,

covers “[t]ileboard which has been continuously worked along any of

its edges and is dedicated for use in the construction of walls,

ceilings, or other parts of buildings.” Subheading 4411.19.30,

HTSUS. Thus the terms of subheading 4411.19.30 requires a product

to exhibit three features: (1) it must be “tileboard”; (2) which has

been continuously worked along any of its edges; and (3) is

dedicated for use in the construction of walls, ceilings or other

parts of buildings. Both parties essentially agree that Witex’s

flooring panels satisfy the last two prongs of the test: the panels

are tongue-and-grooved along their edges, satisfying the second

prong6; moreover, the panels are used on “floors” which may be

included within the meaning of “other parts of buildings.”7 What

5
Under GRI 6, “the classification of goods in the
subheadings of a heading shall be determined according to the
terms of those subheadings....”
6
This is evident from Plaintiff’s exhibits 28-30.
7
While “other parts of buildings” may include floors the
exact import of this phrase is not discernable from this bare
fact. “Other parts of buildings” here modifies “tileboard” and
so if tileboard is not used on floors then floors are not parts
(continued...)
Consol. Court No. 98-00360 Page 6

remains to be determined is the meaning of “tileboard”.

A. Definition of “tileboard” in HTSUS or legislative history

“The first step in properly construing a tariff classification

term is to determine whether Congress clearly defined that term in

either the HTSUS or its legislative history.” Russel Stadelman &

Co. v. United States, 242 F.3d 1044, 1048 (Fed. Cir. 2001) (emphasis

added). “Tileboard” is not defined in the HTSUS and, in the court’s

earlier decision, it held that the legislative history of the tariff

heading in question also did not resolve the issue. Witex I at

1321-1322.

B. Commercial Meaning

When the HTSUS or legislative history do not define a term, the

court looks to the term’s common or commercial meaning. In the

summary judgment phase of this case each party asserted that

“tileboard” had a commercial meaning which supported their

respective positions. In its earlier decision, the court rejected

these claims at that summary judgment phase. Witex I at 1327

7
(...continued)
of a building where “tileboard” is used. Because ejusdem generis
is only applicable where legislative intent is unclear, see 2A
Norman J. Singer, Statutes and Statutory Construction § 47.18 at
287-88 (6th ed. 2000), if the Government had established that the
clear meaning of “tileboard” required principal use on walls,
then “other parts of buildings” could not be read to enlarge the
definition of “tileboard.” The government’s proof, however, did
not resolve this issue.
Consol. Court No. 98-00360 Page 7

(holding that neither the existence nor the absence of a commercial

designation for “tileboard” had been established). In the present

proceeding, however, neither side has put forward any claim that

there is a commercial designation for tileboard.8 Defendant’s Post-

Trial Brief at 10, Plaintiffs’ Post-Trial Brief at 1. As no party

now asserts that there is a commercial designation for “tileboard”,

we move on in our analysis to the question of the common meaning for

the term.

C. Common meaning

When a term is not defined in the HTSUS, nor by legislative

history, and does not have a commercial meaning distinct from the

common meaning that is general, definite, and uniform, the court

will look to the common meaning of the term. August Bentkam v.

United Stated, 40 CCPA 70, 78 (1952). The common meaning of a

tariff term is a matter of law to be determined by the court.

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

1997). In determining the common meaning of a tariff term, the

court may consult lexicographic sources such as dictionaries as well

as scientific authorities, industry sources, and other reliable

8
The Government, in its post-trial brief and reply brief,
sometimes refers to the “common and commercial meaning” and
distinguishes this from a “commercial designation”. However,
this can be misleading. It is clear from context that what the
Government is interested in is the common meaning, albeit in
commerce, of “tileboard”, and not any commercial designation.
Consol. Court No. 98-00360 Page 8

sources of information. Medline Indus., Inc. v. United States, 62

F.3d 1407, 1409 (Fed. Cir. 1995). “Other reliable sources” may

include documentation from the relevant domestic industry and

reference sources relied upon by people working in the industry.

See Northwest Airlines, Inc. v. United States, 22 CIT 797, 800, 17

F. Supp. 2d 1008, 1011 (1998), S.I. Studd, Inc. v. United States,

17 CIT 661, 666 (1993), aff’d, 24 F.3d 1394 (1994). See also Boen

Hardwood Flooring, Inc. v. United States 357 F.3d 1262 (Fed. Cir.

2004) (using various technical sources to determine the common

meaning of “plywood” in HTSUS 4412.)

As noted in the court’s previous decision in this case, the

court has located a number of dictionary definitions of “tileboard”.

See Webster’s Third New International Dictionary 2393 (1986) (“1:

a board used in interior finishing and made from a large sheet of

any of various materials having a decorative coating simulating a

tiled surface. 2: a thin large square piece (as of wood) often with

beveled edges that is fitted together with other like pieces to

cover ceilings or walls.”); McGraw-Hill Dictionary of Scientific and

Technical Terms 2151 (6th ed. 2003) (“[a] type of wallboard used for

interior finishing in which the outer surface is a layer of hard

glossy material, usually simulating tile.”); Terms of the Trade 342

(4th ed. 2000) (“[a] hardboard panel that has been embossed with a

pattern and then coated with epoxy. The resulting product is

designed to look like ceramic tile, for use in kitchens, bathrooms,
Consol. Court No. 98-00360 Page 9

etc.”); Dictionary of Architecture and Construction 939 (3rd ed.

2000)(“1. A wallboard used for interior finishing; usually a base

sheet material overlaid with a hard, glossy decorative facing to

simulate tile. 2. Square or rectangular boards, usually made of

compressed wood or vegetable fibers, often with beveled interlocking

edges, used for ceiling or wall covering.”); Reed Construction Data

at http://www.rsmeans.com/dictionary/index.asp?s=tileboard)(“(1) A

wallboard with a factory-applied facing which is hard, glossy, and

decorated to simulate tile. (2) A square or rectangular board of

compressed wood or vegetable fibers, used for ceiling or wall

facings.”) (Access is free upon registration, which is also free.)

Unfortunately, these definitions, on their own, cannot

definitively settle the question of whether Witex’s product falls

under the common meaning of “tileboard”. The most obvious reason

why these definitions are not sufficient to settle the matter is

that they are too broad, potentially covering products that are not

based on fiberboard or even wood. Additionally, the makeup of the

surface covering is left unclear in several of the definitions,

though the covering is generally defined to be “hard” and “glossy.”

Here testimony by Defendant’s witness, National Import

Specialist (“NIS”) Paul Garretto is instructive. NIS Garetto, the

import specialist for wood products since 1976, testified that

tileboard, as encompassed in Subheading 4411.19.30, would be “a high

density fiberboard, 4 by 8. . . or 5 by 5 sheets approximately one-
Consol. Court No. 98-00360 Page 10

eighth of an inch thick with edges bullnosed having a scoring of the

face which would be embossed or grooved to imitate, once finished,

ceramic tiles feel and look. . . [with] what would be called a wet

finish meaning that it is applied in. . . liquid coatings.” NIS

Garetto also testified that one of the coatings would be a

“thermosetting resin to give a tough and waterproof surface. The

back would also be treated to be moisture resistant” and the product

“was designed to be applied in wet areas and in particular to

bathtub and shower enclosures.” Tr. II 17. Additionally, examples

of tileboard submitted for the record at trial require a backing

material to which they are applied with adhesive because of their

thin nature and are not used on floors because they lack sufficient

resistence to abrasion. Tr. II 30, 33.

From this testimony, along with the above definitions, the

court can construct a working definition or paradigm example of

tileboard: tileboard will consist of a fiberboard backing with

density greater than 0.8 g/cm3, sold in a sheet 4' by 8' or 5' by 5'

in size, approximately 1/8th inch thick (and so needing further

backing before being attached, via an adhesive, to a wall), with

bullnosed (rounded) edges and covered with a water-resistant surface

designed to look like a ceramic tile via a “wet” application

process, and would be used on walls or ceilings but not on floors.

This working definition fits the physical examples of merchandise

marketed as “tileboard” and submitted for the record at trial.
Consol. Court No. 98-00360 Page 11

Defense exhibits S and T.

It is clear that Witex’s products do not fall within this

paradigm as they tend to be thicker, have “tongue and groove” rather

than bullnosed edges, are sold in different sizes, do not usually

have a surface that looks like ceramic tile, are resistant to

abrasion and so are suitable to use on floors, are not applied via

an adhesive to a backing, and do not have a “wet” finish but rather

a laminated one.9

The court cannot simply end its analysis at this point,

however, because, as noted by NIS Garetto, not all of these

characteristics of the paradigm example of tileboard are firmly and

precisely applied, even by Customs itself. A product could deviate

from almost any one of these features and still be tileboard. For

example, a product could have a finish that, rather than ceramic

tile, looks like marble or granite, or has a floral print or a print

to look like wood, or has no design at all. Tr.II 31, 64, 84.

Similarly, it appears to the court, and is indirectly supported by

NIS Garetto’s testimony, that a product could be “worked” on the

edges in a manner other than bullnosing. Tr. II 71-72. In

addition, a higher thickness may sometimes be acceptable, Tr. II 84-

85, 87, and, with a higher thickness, a backing board may not be

needed.

9
This is again apparent not only from Plaintiff’s briefs and
testimony but also from Plaintiff’s exhibits 28-31.
Consol. Court No. 98-00360 Page 12

The single element that does not seem to have a tolerance for

variation is in the nature of the top layer of tileboard. Several

factors point to this. First, NIS Garetto, in his testimony,

insisted that tileboard, in his understanding of the term, always

had a “wet” finish, meaning one where the hard surface is applied

in liquid form, as opposed to a laminated surface. Tr. II, 32-33,

58-63, 105-107.10 Secondly, while the various dictionary

definitions and technical sources noted by the court do not

explicitly rule out a laminated surface they seem more clearly

compatible with a non-laminated surface than with a laminated one.

Specifically, none of these definitions state or imply that

tileboard has a laminated finish. Next, all manufacturers known to

the court who produce a product that is clearly tileboard use a wet

finish while none use a laminated finish. Finally, evidence may be

gathered from the structure of the HTSUS itself. In the tariff

provision immediately following the provision containing the

tileboard subheading – i.e., fiberboard of a density exceeding 0.5

g/cm3 but not exceeding 0.8 g/cm3 -- specific mention is made of

“laminated boards”. HTSUS, 4411.29.20. But, no mention of

laminated boards is made in subheading 4411.19.30, the subheading

10
In its post-trial brief, Witex appears to misunderstand
this aspect of NIS Garetto’s testimony. While, on cross-
examination, Mr. Garetto did testify that a melamine surface
could be laminated, Tr. II, 83, and that a backing board for
tileboard could be laminated, Tr. II, 105, he did not contradict
his testimony that the top surface of tileboard could not be
laminated.
Consol. Court No. 98-00360 Page 13

for tileboard. If Congress had intended for laminated boards to be

classified in subheading 4411.19.30, it could have so specified, as

it did in 4411.29.20. All of these factors weigh in favor of a

determination that laminated boards, like those produced by Witex,

are not tileboard.

As noted above, the court may make references to various

sources, including dictionaries, technical sources, trade materials,

and other reliable sources (such as witnesses like NIS Garetto) in

determining the common meaning of a tariff term. All of these

sources, without exception, support the conclusion that tileboard,

as encompassed in HTSUS 4411.19.30, must have a wet finish and may

not have a laminated finish.

Conclusion

For the foregoing reasons the court sustains Customs’

classification of Witex’s products under heading 4411.19.40.

Judgment will be entered accordingly.

/s/ Donald C. Pogue
Donald C. Pogue, Judge

Dated: September 18, 2008
New York, New York