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

Slip Op. 04-144

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.

[Cross motions for summary judgement denied.]

Decided: November 15, 2004

Aitken Irvin Berlin & Vrooman, LLP (Bruce Aitken, Bruce de
Grazia, and Virginie Lecaillon (consultant)) for the Plaintiff.

Neville Peterson LLP (Maria E. Celis and John M. Peterson) for
the Amicus Curiae in support of Witex U.S.A, Inc., et al.,
Congoleum Corporation.

Peter D. Keisler, 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 States (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 flooring panels (“merchandise” or

“flooring panels”), claiming that the merchandise should be

liquidated as “tileboard” under heading 4411.19.30, HTSUS, and

therefore duty free.2 The Government avers that Witex’s product is

not “tileboard” and therefore should be classified under a basket

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. 108-32, 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

provision for 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. Before the Court are cross motions

for summary judgment pursuant to USCIT Rule 56. The Court has

exclusive jurisdiction over this case. See 28 U.S.C. §

1581(a)(2000). Finding material issues in dispute, the Court denies

both motions for summary judgment.

BACKGROUND

Witex, U.S.A., Inc. is an importer of laminate panels from its

parent, Witex GmbH, a German Corporation. Pl.’s Consol. Compl.

(“Compli.”) at para. 4(a). Mannington Mills, Inc. is a U.S. company

which also imports laminate panels from Witex, GmbH. Pl.’s Consol.

Compli. at para. 4(b). This case involves a protest by Witex from

1995 covering one entry,3 and two protests by Mannington Mills from

1996 covering ten entries.4

3
This protest covers Entry No. 471-0953408-2. Pl.’s Compli.
at para. 1(a); Pl.’s Mem. Opp’n Def.’s Cross-Mot. Summ. J.
(“Pl.’s Resp.”) at 2; see also Def.’s Reply Pl.’s Resp. Def.’s
Cross-Mot. Summ. J. (“Def.’s Reply”) at 3 & n.14.
4
As stated by Witex’s Complaint, the Mannington challenges
involve (1) Ruling on Protest No. 1001-99-105507 covering Entry
Nos. D82-0981523, D82-0981640, D82-0981765, D82-0981788, D82-
0981856, and D82-0981985 and (2) Ruling on Protest No. 1001-99-
105508 covering Entry Nos. D82-0982266, D82-0982541, D82-0982760,
and D82-0982837. Summons Mannington Mills, at 1,3 (Mar. 21,
2000), Summons Witex at 1 (Feb. 13, 1998). Because Witex did not
include Entry No. XX-XXXXXXX within its Summons, Summons Witex at
1 (Feb. 13, 1998), this entry is not properly before the Court,
Pl.’s Answers Ct.’s Questions Pursuant Order Dated Sept. 20, 2004
Consol. Court No. 98-00360 Page 4

Despite the requirements of USCIT Rule 56, the parties have

agreed to few relevant facts. The panels at issue consist of a

fiberboard core with a density 0.891 g/cm3, Mem. from Nick

Zerebecki, Mannington Mills, to Hao Chen, Mannington Mills, Witex

Laminate Products, Ex. 2 to Pl.’s Mem (February 14, 1997)

(“Mannington Mem.”), Def.’s Statement Additional Material Facts

(“Def.’s Statement”) at para. 3, and are tongue-and-grooved along

their edges and ends.5 Def.’s Resp. Pl.’s Statement Material Facts

at para 1. The tops of the panels are coated with melamine and

aluminum oxide, Mannington Mem. at 1, Def.’s Statement at para. 3,

at 1.
5
The Court notes the Government’s objection 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. Def.’s Reply at 4 n.18. The
cases the Government cites, Group Italglass, U.S.A., Inc. v.
United States, 16 CIT 763, 765, 798 F. Supp. 727, 728 (1992) and
Fabil Mfg. Corp. v. United States, 25 CIT 514, 517 (2001)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)),
do establish that the burden of proof is on the plaintiff in
establishing the identity of the actual imports. However,
because “tileboard” remains defined at this stage only in the
most general terms, see infra at 20-34, i.e., “tileboard”
includes any product of a density greater than 0.8 g/cm3 used on
walls, ceilings, or other parts of buildings, and both parties
agree to the facts at this level of generality, summary judgment
on the basis of Witex’s failure to meet its burden is premature
at this time. The Court does note that once a definition is
established, Witex will bear the burden of proof concerning the
identity of its merchandise. For example, if it is established
that “tileboard” must look like ceramic tile, and if Witex does
not know which entries, if any, have this pattern, Witex will
fail to meet its burden of proof.
Consol. Court No. 98-00360 Page 5

and the panels may be used on floors.6 Pl.’s Mem. at 7 para. 19,

Def.’s Statement at para. 1.

SUMMARY OF ARGUMENTS

Witex argues that its flooring panels are not fiberboard

products and therefore cannot be classified under heading 4411,

HTSUS. More specifically, Witex argues that fiberboard, by

definition, is limited to unfinished products, whereas its

merchandise is finished. Pl.’s Mem. at 11-14, Pl.’s Resp. at 4,

Pl.’s Reply in Supp. of Mot. for Summ. J. (“Pl.’s Reply”) at 4.

Alternatively, Witex asks the Court to consider the arguments made

in a companion case, Faus Group, Inc. v. United States, slip op. 04-

143 (CIT Nov. 15, 2004), that the flooring panels are properly

classified under heading 4418, HTSUS, covering “[b]uilders’ joinery

and carpentry of wood.” Pl.’s Mem. at 25, Pl.’s Resp. at 19-20,

Pl.’s Reply at 14-15.7

6
By using the term “use”, the Court is not implying that
this is the only, or principle, use of the panels. Rather, the
Court is merely recognizing that both parties agree that the
panels are used on floors.
7
The Government asks the Court not to consider this issue
because Witex did not specifically brief it in this case. Def.’s
Reply at 12, Def.’s Resps. Ct.’s Questions Prior Oral Argument on
the Parties’ Cross-Mot. for Summ. J. at 9. As the Government
maintains: “Taken literally, a mandate to ‘find the correct
result’ would require a court to conduct its own analysis of
imported merchandise and scour the tariff statute to ensure that
all possible provisions have been considered. Indeed, this
appears to be precisely what Witex is suggesting.” Def.’s Reply
at 12. Despite this, the Government also asks the Court to find
that Boen Hardwood Flooring, Inc. v. United States, 357 F.3d 1262
Consol. Court No. 98-00360 Page 6

If the merchandise is properly classified in heading 4411,

HTSUS, Witex claims that it should be classified under subheading

4411.19.30, HTSUS, which 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.”

Pl.’s Mem. at 14-24, Pl.’s Resp. at 6-18, Pl.’s Reply at 1-13.

Witex maintains that Customs unduly restricted the scope of

subheading 4411.19.30, HTSUS, by requiring that the panels be used

on walls. Pl.’s Mem. at 16, Pl.’s Resp. at 7, Pl.’s Reply at 2-3.

The Government argues that the merchandise is classifiable

under heading 4411, HTSUS. The Government asserts that Witex relies

on a commercial definition of fiberboard used in Europe to support

its contention that fiberboard can only be unfinished. Def.’s Mem.

at 25-26. That European commercial definition, the Government

contends, is irrelevant to the classification of products under the

HTSUS. Id. In defining “tileboard,” the Government points to the

legislative history of the “tileboard” provision which includes a

letter from J.J. Barker Co. to the Trade Policy Staff Committee

seeking a provision for its imports. Def.’s Mem. at 11-13, 18, 20,

Def.’s Reply at 8. According to the Government, J.J. Barker Co. had

(Fed. Cir. 2004) controls this case insofar as it concerns the
potential classification of the merchandise under heading 4418,
HTSUS. See, e.g., Def.’s Mem. Supp. Cross-Motion Summ. J.
(“Def.’s Mem.”) at 29. However, Boen Hardwood Flooring did not
decide this issue, and heading 4418, HTSUS, was never argued by
the parties, at least at the trial court level. The Government
cannot have it both ways.
Consol. Court No. 98-00360 Page 7

been importing its “tileboard” product duty free under the Tariff

Schedule of the United States (“TSUS”), but was facing a 6% ad

valorem duty with the transition to the HTSUS. Def.’s Mem. at 11-

13; see also subheading 4411.19.40, HTSUS. Therefore, in order to

ensure that J.J. Barker’s “tileboard” imports did not face an

increase in duty, the “tileboard” provision was added. Id. As the

Government argues, because Witex’s merchandise is not similar to

J.J. Barker’s “tileboard,” Witex’s merchandise cannot be considered

“tileboard” within the meaning of subheading 4411.19.30, HTSUS. Id.

The Government further argues that based on a dictionary definition

of “tileboard,” Def.’s Mem. at 16, 18, evidence from industry

practice, Def.’s Mem. 17, 22, Def.’s Reply at 8-9, and the

Government’s expert witness, Def.’s Mem. at 21, Witex’s panels are

not “tileboard” because “tileboard: (i) is not laminated, (ii) is

usually embossed with a pattern, and (iii) is coated with an epoxy

or other [liquid] finish to resemble ceramic tile,” Def.’s Mem. at

20-21 (brackets around “liquid” in original), (iv) is water-

resistant, Def.’s Mem. at 17, 19-20, and (v) is only used on walls,

Def.’s Mem. at 21. Accordingly, the Government claims that because

Witex’s merchandise is laminated, is not embossed, does not look

like ceramic tile, Def.’s Mem. at 20, is not water-resistant, Def.’s

Mem. at 19-20, and is used as flooring, not wallboard, Def.’s Mem.

14 n.14, 22, it cannot be “tileboard.” Therefore, the Government

argues, Witex’s product is excluded from subheading 4411.19.30,

HTSUS, rendering it classifiable under 4411.19.40, HTSUS, covering
Consol. Court No. 98-00360 Page 8

“[o]ther” forms of fiberboard with a density of greater than 0.8

g/cm3 which are surfaced coated by more than oil.

STANDARD OF REVIEW

“The proper scope and meaning of a tariff classification 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

ruling is subject to de novo review8 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)).

Both parties have moved for summary judgment pursuant to USCIT

Rule 56. Summary judgment is only 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 and that the moving party is entitled

8
Witex occasionally appears to suggest that Customs Rulings
are reviewed under an abuse of discretion standard. See, e.g.,
Pl.’s Resp. at 9-10, Pl.’s Reply at 4-5. In classification
cases, Witex must show that its product is “tileboard” under some
definition of “tileboard.” Even if the Government’s definition
is wrong, that does not by itself make a product “tileboard,” nor
does it resolve the case, for then the Court must define the term
“tileboard.” See Jarvis Clark Co. v. United States, 733 F.2d 873,
878 (Fed. Cir. 1984).
Consol. Court No. 98-00360 Page 9

to judgment as a matter of law.” USCIT R. 56(c)(emphasis added).

Material issues only arise concerning “facts that might affect the

outcome of the suit under the governing law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986). Consequently, in

classification cases, genuine issues of material fact only arise

when there is a dispute over the use, characteristics, or properties

of the merchandise being classified, Brother Int’l Corp. v. United

States, 26 CIT ___, ___, 248 F. Supp. 2d 1224, 1226 (2002), or where

commercial meaning is in question. Russell Stadelman & Co. v.

United States, 242 F.3d 1044, 1048 (Fed. Cir. 2001). For the

reasons set forth below, summary judgment for either party at this

point is not warranted.

DISCUSSION

“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). The HTSUS is organized by headings

setting forth general categories of merchandise; below each heading

are listed subheadings (and then further subdivisions) that more

specifically describe products within each heading. Id. According

to the GRIs, a Court must choose the most 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
Court No. 98-00360 Page 10

correct classification for the merchandise.” Id. at 1440 (citing

GRI 1, 6, HTSUS). Once the Court chooses the proper heading, the

Court is limited to choosing a subheading only from within the

proper heading, i.e., the subheadings appearing under other headings

become irrelevant for the classification of the merchandise at

issue. Id.

Because there is a dispute as to the proper heading, the Court

will first determine whether the flooring panels are properly

classified under heading 4411, HTSUS. After finding that the

merchandise is properly classifiable under heading 4411, HTSUS, the

Court will construe subheading 4411.19.30, HTSUS, ultimately

concluding that material issues remain to be resolved.

I. Choosing the Proper Heading

A. Meaning of Fiberboard

As required by GRI 1, HTSUS, “classification shall be

determined according to the terms of the headings and any relative

section or chapter notes . . . .” Heading 4411, HTSUS, covers

“[f]iberboard of wood or other ligneous materials, whether or not

bonded with resins or other organic substances.” Both parties

concede that the merchandise is made with a fiberboard core. Pl.’s

Statement Undisputed Facts Supp. Pl.’s Mot. Summ. J. at para. 2,

Def.’s Statement at para. 1. Fiberboard is defined as “[a] general

term that refers to any of various panel products such as

particleboard, hardboard, chipboard, or other type formed by bonding
Court No. 98-00360 Page 11

wood fibers by heat and pressure.” Terms of the Trade 130 (4th ed.

2000); see also Webster’s II New Riverside University Dictionary 474

(1988) (“[a] building material made of plant fibers, as wood, bonded

together and compressed into rigid sheets.”). These definitions do

not define “fiberboard” by any element of its finish.

Witex contends that Customs wrongfully classified its

merchandise under heading 4411, HTSUS, because fiberboard includes

only unfinished merchandise whereas Witex’s merchandise is finished.

To support is contention, Witex introduces a letter from the

European Producers of Laminate Flooring (“EPLF”) stating that

“[f]rom an industry perspective . . . [l]aminate panelling, which

is widely used in the industry for both wall and floor applications,

cannot be fibreboard because, by definition, fibreboard is a

component of some types of laminate and, at most, can be considered

unfinished laminate.” Letter from Peter H. Meyer, Managing Director

of the European Producers of Laminate Flooring, to Bruce Aitken,

Esq., Ex. 12 to Pl.’s Mem. at 12 (Feb. 28, 2002) (“EPLF Letter”).9

Witex also cites the Deposition of Paul Garetto, a National Import

Specialist, as saying: “If you asked for fiberboard, if you go to

a lumberyard, probably they would direct you to a 4 by 8 sheet of

fiberboard, probably unfinished.” Dep. Paul Garetto, Ex. 14 to

9
The Court does not know what is meant by “unfinished
laminate,” i.e., whether “unfinished laminate” means that
fiberboard must undergo further operations to become a finished
laminate flooring panel, or whether it means that the fiberboard
has not been surface coated with a finish. However, this
ambiguity is immaterial for the reasons set forth below.
Court No. 98-00360 Page 12

Pl.’s Mem. at 118 (Jan. 15. 2004).10 According to Witex’s logic,

because “fiberboard” is by definition unfinished, and because

Witex’s product is finished, the merchandise cannot be “fiberboard.”

Pl.’s Mem. at 12-14. Essentially, what Witex’s argument boils down

to is that there is a commercial meaning of “fiberboard” which

precludes the classification of its merchandise under heading 4411,

HTSUS. Witex’s argument is unpersuasive for two reasons: (1) Witex

has failed to establish a commercial meaning for the proposition it

seeks; and (2) even if Witex were correct as to the meaning of

“fiberboard,” Witex reads the word “fiberboard” out of context with

the rest of the tariff provision.

First, Witex fails to establish a commercial meaning for its

merchandise. Witex is correct in claiming that an established

commercial meaning prevails over a common meaning unless contrary

to Congressional intent. See Maddock v. Magone, 152 U.S. 368, 371

(1894) (citing Cadwalader v. Zeh, 151 U.S. 171, 176 (1893)).

However, in order to establish a commercial meaning, the party

invoking a commercial meaning has the burden of proving that a term

has a commercial meaning that is “definite, uniform, and general

10
Witex suggests that Paul Garetto’s testimony represents
the “common meaning” of “fiberboard.” Pl.’s Mem. at 13-14.
Because the determination of common meaning is a question of law,
Schott Optical Glass, Inc. v. United States, 67 C.C.P.A. 32, 34,
612 F.2d 1283, 1285 (1979), and the common meaning of a word
should be readily obtainable to all persons who do not have
specialized knowledge, testimony regarding a common meaning is
considered only advisory. See Toyota Motor Sales, U.S.A., Inc.
v. United States, 7 CIT 178, 183-84, 585 F. Supp. 649, 654
(1984).
Court No. 98-00360 Page 13

throughout the trade,” Carl Zeiss, Inc. v. United States, 195 F.3d

1375, 1379 (Fed. Cir. 1999), and that this “definite, uniform, and

general meaning” is used in the United States’ trade and commerce,

Two Hundred Chests of Tea v. Smith, 22 U.S. (9 Wheat) 430, 438

(1824) (“Whether a particular article were designated by one name

or another, in the country of its origin . . . was of no importance

in the view of the legislature.”), Wing Coffee Co., Ltd. v. United

States, 53 Cust. Ct. 60, 63 (1964). Accordingly, “in considering

the commercial designation of a tariff term, only commercial use of

that term in the United States is relevant.” Russell Stadelman &

Co. v. United States, 242 F.3d 1044, 1049 (Fed. Cir. 2001) (emphasis

added).

The evidence proffered by Witex fails to meet the burden of

proof for establishing a commercial meaning in this case. A letter

from a single European trade association, that represents only

producers of laminate flooring,11 does not provide any evidence of

a definite, general, and uniform meaning of a term as used in the

United States. Nor is Witex’s claim supported by the Deposition of

Paul Garretto. The Deposition of Paul Garretto merely establishes

that if a person asked for fiberboard at a lumberyard, they

11
Witex also cites the European Committee for
Standardization’s definition of fiberboard: “panel material with
a nominal thickness of 1.5 mm or greater, manufactured from
lignocellulosic fibers with application of heat and/or pressure.”
Pl.’s Mem. at 13. If this definition were relevant, it would
still not support Witex’s contention because it does not impose
any requirement that fiberboard be “unfinished.”
Court No. 98-00360 Page 14

“probably” would be directed to unfinished fiberboard. This does

not constitute evidence that if fiberboard is finished it is no

longer fiberboard. Because Witex has failed to adduce any probative

evidence for a “definite, uniform, and general” commercial meaning

for “fiberboard,” the Court is bound by the common meaning of

fiberboard as that term appears in heading 4411, HTSUS.12

Secondly, Witex’s reading of heading 4411, HTSUS, is belied by

the language of the heading, chapter notes, and the Explanatory

Notes. Heading 4411, HTSUS, is an eo nomine provision as it

“describes a commodity by a specific name.” Am. Hardboard Ass’n v.

United States, 12 CIT 714, 715 (1988); see also JVC Co. of Am. v.

United States, 234 F.3d 1348, 1352 (Fed. Cir. 2000). Because eo

nomine “provision[s] include[] all forms of the named article unless

limited by [their] terms,” Am. Hardboard, “[a]n improvement in

merchandise provided for eo nomine does not remove it from

classification under the eo nomine designation.” Arthur J.

Humphreys, Inc. v. United States, 973 F.2d 1554, 1556 (1992).

Consequently, when an eo nomine provision is used as it is in

heading 4411, HTSUS, the tariff term implicitly means fiberboard and

products made from fiberboard.13 Therefore, even if a piece of

12
Just because the Court rejects the notion that fiberboard
has a commercial meaning in the manner suggested by Witex does
not mean that other terms under heading 4411, HTSUS, do not have
commercial meanings. See infra at 24-32.
13
Chapter Note 4 to Chapter 44, HTSUS, mandates that there
is a point where the product has been sufficiently advanced such
that it no longer falls within the eo nomine designation.
Court No. 98-00360 Page 15

fiberboard has been further worked beyond its raw form, it still

remains classifiable under heading 4411, HTSUS.

The drafters of the HTSUS, and Congress, recognized that

heading 4411, HTSUS, includes fiberboard products that have been

further worked through the inclusion of Chapter Note 4 to Chapter

44 which provides that “[p]roducts of heading 4410, 4411, or 4412

may be worked to form the shapes provided for in respect of articles

of heading 4409, curved, corrugated, perforated, cut or formed to

shapes other than square or rectangular or submitted to any other

operation provided it does not give them the character of articles

of other headings.” Chapter Note 4 to Chapter 44, HTSUS.14 Chapter

Note 4 admits that fiberboard products transformed beyond their raw

character are nonetheless still classifiable under heading 4411,

HTSUS, unless subjected to an operation, not among those enumerated,

that gives the product the character of an article in another

heading. The Explanatory Note to 44.11 further specifies that

“[i]mpregnating or other agents may also be added during or after

However, the Court rejected in Faus Group, Inc. v. United States,
slip op. 04-143 (CIT Nov. 15, 2004) the argument that surface
covering and tongue-and-grooving fiberboard were sufficient to
remove a product from heading 4411, HTSUS.
This reading is also consistent with the North American
Laminate Flooring Association’s definition of fiberboard which
recognizes that “fiberboard” is a “core material.” See North
American Laminate Flooring Association, Laminate Flooring, Ex. 6
to Pl.’s Mem. at 2.
14
For a thorough discussion of Note 4 to Chapter 44, see
Faus Group, Inc. v. United States, slip op. 04-143 (CIT Nov. 15,
2004).
Court No. 98-00360 Page 16

manufacture of the board to give an extra property, e.g.,

impermeability to water or resistance to rot, insect attack, fire

or the spread of flame.” Harmonized Commodity Description and

Coding System, Explanatory Note 44.11 (2nd ed. 1996) at 680

(“Explanatory Notes” or “EN”); cf. Chapter 44, U.S. Note 1(c),

HTSUS. Last, the subheadings under heading 4411, HTSUS, include

products such as “tileboard,” subheading 4411.19.30, HTSUS, and

“[l]aminated boards bonded in whole or in part, or impregnated,

with synthetic resins,” subheading 4411.29.20, HTSUS. Witex’s

reading of heading 4411, HTSUS, to preclude classification of its

laminated paneling therein, would render nugatory the above

referenced provisions, in violation of the well-established rule of

statutory construction that all parts of a statute should be given

effect if possible. See Weinberger v. Hynson, Westcott & Dunning,

Inc., 412 U.S. 609, 633 (1973). Therefore, the text and Explanatory

Notes demonstrate a clear Congressional intent not to use the

restrictive definition of “fiberboard” advanced by Witex.

Accordingly, even if Witex could prove its commercial meaning of

“fiberboard,” there is a clear indication that Congress did not

intend Witex’s claimed commercial meaning. See Cadwalader v. Zeh,

151 U.S. 171, 176 (1894) (the “commercial meaning is to prevail,

unless Congress has clearly manifested a contrary intention.”).

B. Other possible headings
Court No. 98-00360 Page 17

Alternatively, Witex asks the Court to choose another

appropriate heading, referencing the dispute before the Court in

Faus Group, Inc. v. United States, slip op. 04-143 (CIT Nov. 15,

2004), which deals with heading 4418, HTSUS, covering “[b]uilders’

joinery and carpentry of wood.” Pl.’s Mem. at 25. In Faus Group,

slip op. 04-143 (CIT Nov. 15, 2004), the Court found that nearly

identical laminated flooring panels were properly classifiable under

heading 4411, HTSUS, and not under heading 4418, HTSUS. Because

Witex does not present any arguments or evidence that would

distinguish its merchandise from the merchandise in Faus Group, the

Court deems that Witex’s flooring panels are likewise classifiable

under heading 4411, HTSUS, for the reasons set forth in Faus Group.

C. Heading 4411, HTSUS, is the proper heading

Because Witex’s merchandise is classifiable under heading 4411,

HTSUS, and there are no other appropriate headings under which its

merchandise would fall, heading 4411, HTSUS, is the proper heading

for Witex’s flooring panels.

II. Choosing the Proper Subheading

Finding that Witex’s flooring panels are properly classified

under heading 4411, HTSUS, the Court next addresses under which

subheading the merchandise falls. Both parties agree that, if the

merchandise falls under heading 4411, HTSUS, the merchandise either
Court No. 98-00360 Page 18

falls under subheading 4411.19.30, HTSUS, for “[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

building,” or subheading 4411.19.40, covering all “other” fiberboard

products with densities greater than 0.8 g/cm3 which are surface

covered by more than an oil treatment.15 Because subheading

4411.19.40, HTSUS, is a basket provision, i.e., covering all

products not classifiable elsewhere,16 the flooring panels are only

classifiable in subheading 4411.19.40, HTSUS, if they are not

classifiable under subheading 4411.19.30, HTSUS. See Rollerblade,

15
There are three categories of subheadings under heading
4411, HTSUS, differentiating products on the basis of the density
of the fiberboard product: (1) subheadings 4411.11 - 4411.19,
HTSUS, covering fiberboard products with densities of greater
than 0.8 g/cm3; (2) subheadings 4411.21 - 4411.29, HTSUS,
covering fiberboard products with densities exceeding 0.5 g/cm3
but not exceeding 0.8 g/cm3 and; (3) subheadings 4411.31 -
4411.99, HTSUS, covering fiberboard with density of less than 0.5
g/cm3. Because Witex’s flooring panels have a density of greater
than 0.8 g/cm3, they fall within the first category of goods.
This category is further divided as to whether the merchandise
has been “mechanically worked or surface covered” where surface
covered “means that one or more exterior surfaces of a product
have been . . . overlaid with paper . . . .” Chapter 44, U.S.
Note 1(c), HTSUS. Witex’s flooring panels are overlaid with a
color photograph of wood and are therefore “surface covered.”
This subdivision is further subdivided for products that have not
been “surface covered (except for oil treatment)” which does not
include Witex’s merchandise because of the paper overlay.
16
Witex appears confused by what is meant by a “basket
provision.” See Pl.’s Mem. at 11. Classifying a product in a
“basket provision” does not mean that a product is “unfinished.”
A “basket provision” is simply used to classify products not
classifiable elsewhere. In fact, to be classified under
subheading 4411.19.40, HTSUS, a product must be mechanically
worked and surface coated by more than just oil which makes
products classifiable there far from “unfinished.”
Court No. 98-00360 Page 19

Inc. v. United States, 282 F.3d 1349, 1354 (Fed. Cir. 2002) (citing

EM Indus., Inc. v. United States, 22 CIT 156, 165, 999 F. Supp.

1473, 1480 (1998)). Consequently, this case hinges on the meaning

of subheading 4411.19.30, HTSUS.

Subheading 4411.19.30, HTSUS, 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. The language of the

subheading 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 prong; moreover, the panels are used

on “floors” which may be included within the meaning of “other parts

of buildings.”17 However, the parties do not agree on the meaning

17
The Court agrees that “other parts of buildings” may
include floors. However, because “other parts of buildings” may
include floors, it does not necessarily follow that “other parts
of buildings” must include floors. Rather, the “other parts of
buildings” modifies “tileboard.” In other words, this language
means “other parts of buildings” where “tileboard” is used – if
“tileboard” is not used on floors, then floors are not another
part 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 can establish
that the clear meaning of “tileboard” requires principle use on
walls, then “other parts of buildings” cannot be read to enlarge
the definition of “tileboard.” As a brief aside, the phrase
Court No. 98-00360 Page 20

of the word “tileboard.” Consequently, the Court must define

“tileboard” to determine whether the flooring panels can be

classified under subheading 4411.19.30, HTSUS.

A. The 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.” Russell Stadelman &

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

added). “Tileboard” is not defined in the HTSUS; however, both the

Customs’ Ruling, Headquarters Ruling (“HQ”) 960084 ((December 10,

1997), and the Government in this case have suggested that

“tileboard” is defined by the legislative history of subheading

4411.19.30, HTSUS.

In 1989, as part of an international effort to adopt a common

nomenclature across nations, see Carl Zeiss, Inc. v. United States,

195 F.3d 1375, 1378 n.1 (Fed. Cir. 1999), the United States agreed

to adopt the headings and subheadings (up to the six digit level)

established under the international Harmonized Schedule, but

reserved the right to create further subdivisions beyond the six

“wall, ceilings and other parts of buildings” was employed by the
TSUS in defining “building boards.” See Headnote 1(e) of Part 3
of Schedule 2 TSUS (1987). Neither of the two cases evaluating
this term, Am. Hardboard Ass'n v. United States, 12 CIT 714
(1988), F.W. Myers & Co., Inc. v. United States, 59 Cust. Ct.
427, 275 F. Supp. 811 (1967), appear to lend assistance to the
inquiry here.
Court No. 98-00360 Page 21

digit level, see International Convention on the Harmonized

Commodity Description and Coding System Article 3(3) found at

http://www.wcoomd.org/ie/En/Conventions/conventions.html.18 Before

the transition to the HTSUS became fully effective, J.J. Barker, Co.

(“J.J. Barker”), an importer of “tileboard,” alerted the Trade

Policy Staff Committee (“TPSC”)19 that although its imports of

paneling were duty free under the TSUS, under the proposed HTSUS

J.J. Barker’s product would face a 6% ad valorem duty rate. See

Letter from S.C. Gauthier to Christopher P. Marcich, Director of

Tariff Affairs, Ex. D to Def.’s Mem. (Jan. 8, 1988) (“Barker

Letter”). According to the Government, the TPSC responded by adding

subheading 4411.19.30, HTSUS, in order to maintain duty free

treatment for J.J. Barker’s imports. Def.’s Mem. at 11-14.

According to the Government, because J.J. Barker’s product was

referred to as “tileboard,” the Court should look to that product

as a model for what constitutes “tileboard” within the meaning of

18
The “tileboard” classification is beyond the six-digit
level, and each nation is allowed to create its own subdivisions
beyond the six-digit level. How Europe classifies these goods is
therefore irrelevant when considering how the United States
should classify goods at this level unless a party can show that
the creation of the U.S. provision was influenced by the European
nomenclature.
19
The TPSC was responsible for converting the TSUS to the
HTSUS. The TPSC solicited public comment for the express purpose
of “[a]void[ing], to the extent practicable and consonant with
sound nomenclature principles, changes in rates of duty on
individual products.” Public Hearings on the Harmonized Commodity
Description and Coding System, 48 Fed. Reg. 34,822, 34,823 (USTR
Aug. 1, 1982).
Court No. 98-00360 Page 22

subheading 4411.19.30, HTSUS. See Def.’s Mem. at 12-13. The

Government, gleaning its information from a product brochure, Easy

Living – With Barker, Ex. E to Def.’s Mem., describes “tileboard”

as “completely water resistant decorative wall panels made of non-

laminated hardboard with a density of 1.15 g/cm3 with their surface

painted, coated and grooved to imitate individual ceramic tiles.”

Def.’s Mem. at 12.

The letter from J.J. Barker cited by the Government, however,

is of dubious probative value and does not provide a definite or

express definition of “tileboard.” As the Supreme Court has noted:

Legislative history is problematic even when the attempt
is to draw inferences from the intent of duly appointed
committees of the Congress. It becomes far more so when
we consult sources still more steps removed from the full
Congress and speculate upon the significance of the fact
that a certain interest group sponsored or opposed
particular legislation. We ought not attribute to
Congress an official purpose based on the motives of a
particular group that lobbied for or against a certain
proposal – even assuming the precise intent of the group
can be determined . . . .

Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 120 (2001)

(citations omitted). Similarly, the court in United States v.

Paramount Publix Corp., 22 C.C.P.A. 452, 460 (1934) found that

committee testimony of interested parties was not “controlling since

the enactment of the provision in the language before us might have

been with an intent wholly different from that indicated by the

witnesses.” This problem is particularly acute here where there is

no indication of how the TPSC, or Congress, defined “tileboard” in
Court No. 98-00360 Page 23

relation to J.J. Barker’s product.20 Therefore, this history does

not provide the Court with a definite or express definition of

“tileboard.”21

20
In its letter to the TPSC, J.J. Barker only described its
product as “finished hardboard” of “high quality, high priced
‘tileboard’ bath and kitchen panels.” Barker Letter, Ex. D to
Def.’s Mem. at 1. (Note that: (a) the letter describes the
merchandise not just as “tileboard,” but a certain type of
“tileboard” – i.e., “high quality, high priced ‘tileboard’” and
(b) J.J. Barker also felt it was necessary to mention that its
product was used in the bath and kitchen, an unnecessary defining
feature if the only use of “tileboard” was in the bath and
kitchen.) J.J. Barker appended a classification ruling from 1971
that described the product as “hardboard wall panels which are
coated with melamine” which were bull-nosed, or rounded, along
their vertical edges. Id. at 4; cf. with the Government’s
description, Def.’s Mem. at 12 (J.J. Barker’s product was
“completely water resistant decorative wall panels made of non-
laminated hardboard with a density of 1.15 g/cm3 with their
surface painted, coated and grooved to imitate individual ceramic
tiles.”). It is not clear upon which, if any, of these
descriptions, the TPSC based its definition of “tileboard.”
Moreover, even if the Court were to adopt any of these
descriptions, it would be impossible to determine what are the
essential characteristics of “tileboard” on the basis of one
product. For example, if a product matched the Government’s
proffered description, but it was only 1.1 g/cm3 in density, or
if the product imitated marble rather than ceramic tiles, would
it still be “tileboard”? Nonetheless, this evidence is not
completely valueless. For instance, if Customs sought to
classify products in a way that would exclude J.J. Barker’s
product from subheading 4411.19.30, HTSUS, this evidence may be
probative.
21
When the legislative history provides a clear or express
definition of a tariff term, the Court will rely on that
definition. For example, courts have used definitions in reports
prepared in conjunction with the drafting of the tariff
provision, see e.g., Arthur J. Humphreys, Inc. v. United States,
973 F.2d 1554, 1557 (Fed. Cir. 1992), or judicially established
definitions of the same term used in an earlier version of the
tariff schedule, see e.g., Intercontinental Marble Corp. v.
United States, 381 F.3d 1169, 1175-76 (Fed. Cir. 2004) (using the
commercial definition of marble as established under the TSUS
when interpreting that term in the HTSUS). However, absent a
Court No. 98-00360 Page 24

Consequently, because the legislative history is of a non-

dispositive nature, this case cannot be resolved by looking first

to the legislative history for a definition. This does not mean

that the Court deems the legislative history irrelevant for future

use to bolster a definition; it simply means that at this juncture,

the instant case cannot be resolved by recourse to the legislative

history.

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. Both

parties have suggested that there is a commercial meaning for the

term “tileboard.”22 Because a commercial designation, once proven,

clear or express definition provided by the legislative history,
definitions gleaned from the legislative history are merely
probative and are used to bolster or support a definition derived
from dictionaries, lexicons, scientific authorities, and other
such reliable sources. Cf., Anhydrides & Chems., Inc. v. United
States, 130 F.3d 1481 (Fed. Cir. 1997).
22
The Court has been able to locate certain 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, etc.”); Dictionary of Architecture and
Court No. 98-00360 Page 25

takes precedence over a common meaning, see Boen Hardwood Flooring,

Inc. v. United States, 357 F.3d 1262, 1265 (Fed. Cir. 2004), it is

appropriate to determine if either party has established, or can

establish, a commercial meaning. Cf. Cadwalader v. Zeh, 151 U.S.

171, 176 (1893) (“it is only when no commercial meaning is called

for or proved, that the common meaning of the words is to be

adopted”). Proof of a commercial meaning is a matter of fact, not

law. Russell Stadelman & Co. v. United States, 242 F.3d 1044, 1048

(Fed. Cir. 2001); but cf. Boen, 357 F.3d at 1265.

As this Court has long maintained, the rule of commercial

designation is “intended to apply to cases where the trade

designation is so universal and well understood that the Congress,

and all the trade, are supposed to have been fully acquainted with

the practice at the time the law was enacted.” Jas. Akeroyd & Co.

v. United States, 15 Ct. Cust. App. 440, 443 (1928). Accordingly,

to establish a commercial meaning, a party must prove that

“tileboard” has a commercial meaning in the trade “which is general

(extending over the entire country), definite (certain of

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).
Court No. 98-00360 Page 26

understanding), and uniform (the same everywhere in the country).”

Rohm & Haas Co. v. United States, 5 CIT 218, 226, 568 F. Supp. 751,

757 (1983) (citations omitted). “The commercial meaning of tariff

terms must be proved by persons engaged in buying and selling the

merchandise at wholesale in the United States, or by persons who

know, by their own experience or of their own knowledge, the meaning

of the designation applied to the merchandise by those who buy and

sell it at wholesale.”23 Rice Millers’ Ass’n, Am. Mfrs. v. United

States, 15 Ct. Cust. App. 355, 360 (1928). Moreover, mere negative

inference that a product is excluded from a commercial designation

is insufficient; rather, a party must offer positive evidence of the

actual meaning of the commercial designation. United States v. Fung

Chong Co., 34 C.C.P.A. 40, 44 (1946); Carl-Zeiss, Inc. v. United

States, 22 CIT 606, 610-11, 16 F. Supp. 2d 1097, 1101 (1999). Last,

minus a clear statement of commercial practice, Boen, 357 F.3d at

1265, testimony by witnesses is an indispensable tool in

establishing a commercial meaning. See, e.g., Passaic Worsted Co.

v. United States, 17 C.C.P.A. 459, 461-62 (1930); Rice Millers’, 15

Ct. Cust. App. at 360. Both parties’ evidence fails to meet these

standards.24

23
No evidence has been submitted of this nature. Testimony
by persons who buy at wholesale, such as buyers for large home
improvement stores, would likely produce greatly illuminating
evidence of commercial meaning.
24
Witex submits a letter from C. Curtis Peterson
(“Peterson”), the Executive Vice President of the American
Hardboard Association (“AHA”), defining “tileboard” in such a way
Court No. 98-00360 Page 27

as to embrace Witex’s product. Letter from C. Curtis Peterson to
Witex USA, Inc, Ex. 10 to Pl.’s Mem. at 4-5 (Sept. 3
1997)(“Peterson Letter”). However, the Government has argued
that this letter is susceptible to two meanings, see Def.’s Mem.
at 16, and it appears that Witex never sent a sample of its
merchandise for evaluation in garnering this opinion. Witex also
cites a letter from the EPLF. See, e.g., Pl.’s Mem. at 5.
First, for the reasons stated above, the EPLF does not represent
United States commercial practice. See Russell Stadelman & Co.
v. United States, 242 F.3d 1044, 1049 (Fed. Cir. 2002). Second,
the EPLF’s letter works against Witex rather than for it. The
letter states: “‘Tileboard’ is considered in the industry to be
backing for ceramic tiles.” EPLF Letter, Ex. 12 to Pl.’s Mem.
Note, the letter does not say “the simulation of ceramic tiles”,
rather it says “backing” for ceramic tiles. There is no
indication from either party that Witex’s merchandise is used in
conjunction with ceramic tiles; even if simulating ceramic tiles
were sufficient, “tileboard” would most likely not cover the
simulation of wood.
The Government’s evidence fairs no better. The Court notes
the most relevant of the Government’s submissions. (1) The
Government alleges that “the Lowes Home Improvement Center in
Brooklyn, New York, displays products labeled as ‘tileboard,’
such as [a physical sample the Government provided the Court], in
its ‘decorative wall paneling’ section while laminated flooring
is located in the ‘flooring’ section.” Def.’s Mem. at 22; Def.’s
Reply at 9 n.23. This is not corroborated by affidavit,
deposition or other evidentiary material. See USCIT R. 56(e). (2)
The Government submits pictures of Louisiana Pacific Graystone
Tileboard, i.e., Louisiana Pacific Graystone Tileboard, Ex. B. to
Def.’s Mem., without reference to who took them or where the
pictures are from, e.g., a webpage URL or product brochure; these
pictures cannot be considered as evidence. (3) The Government
cites the Study Concerning the Tariff Classification of Imported
Laminate Flooring Panels, a report prepared by F. Holbrook Platts
(“Platts”) of Platts Laminate Technologies which should have been
appended to that brief. Def.’s Mem. at 21. However, the
Government has not provided the Court with a copy of that report,
the credentials of Platts, or indicated upon what Platts bases
his conclusion. (4) Of, and to the extent, the Government is
attempting to incorporate Voluntary Product Standard 59-73 on
“Prefinished Hardboard Paneling,” see Def.’s Mem. at 16-17, the
Court notes that this Product Standard was withdrawn in 1980.
See Status Report on Withdrawal of Voluntary Product Standards,
45 Fed. Reg. 55,250, 55,250-51 (Nat’l Bureau of Standards Aug.
19, 1980), American National Standards Institute, Prefinished
Hardboard Paneling (1973) (with the word “withdrawn” stamped on
Court No. 98-00360 Page 28

Ordinarily, upon the failure of a party, or parties, to

establish a commercial designation, the Court will find that there

is no commercial meaning and turn to the common meaning of the

tariff term. However, it appears premature to entirely reject the

possibility that “tileboard” does have a commercial meaning in this

case. Rather, what “evidence” has been offered as to commercial

meaning has not been sufficiently developed to determine if there

is a commercial meaning, and if there is, what exactly that

its cover) (on file with the Court). Moreover, the product
standard merely defines products by their finish thereby
supporting the Peterson letter (not, necessarily, the
Government’s position). See American National Standards
Institute, Prefinished Hardboard Paneling (1973). (5) The
Government’s citations to tileboard manufacturers’ web sites are
not evidence of testimony by wholesalers. See e.g., Def.’s Mem.
at 17-18, 22. (6) The Government refers to the National Emissions
Standards for Hazardous Air Pollutants for the Surface Coating
Operations of Wood Building Products prepared by the
Environmental Protection Agency (“EPA”). Def.’s Mem. at 22. If
the Government submitted evidence that these regulations were
promulgated on the basis of industry standards this evidence
might be probative; however, the Government has failed to do so,
rendering this evidence of low probative value. Cf. RSMC Inc. v.
United States, 84 Cust. Ct. 96, 100 (1980). Moreover, without
more information, the Court cannot ascertain whether the surface
coating criteria used by the EPA is supportive of, or
contradictory to, the American Hardboard Association’s definition
of surface coating discussed infra at notes 25 and 26. (7) The
Government notes that Witex has never marketed its product as
“tileboard.” See, e.g., Def.’s Resp. Ct.’s Questions Prior Oral
Arguments Parties’ Cross-Motions Summ. J. at 5. Although
evidence of marketing practice may be suggestive, it is not
dispositive. See Rainin Instrument Co. v. United States, 27 CIT
, , 288 F. Supp. 2d 1360, 1366 (2003); cf. Carl Zeiss, Inc.
v. United States, 195 F.3d 1375, 1380 (Fed. Cir. 1999).
Moreover, this does not provide the reason for exclusion, i.e.,
to which part of the Government’s proposed five prong test this
evidence lends credence.
Court No. 98-00360 Page 29

commercial meaning is.

First, both parties agree that the American Hardboard

Association (“AHA”) does have a commercial designation for

“tileboard.” In fact, at least two Customs Rulings have relied, at

least in part, on the AHA’s commercial definition(s) of “tileboard.”

HQ 960084 at 4; HQ 085913 at 2 (January 8, 1990). However, neither

party has offered testimonial evidence to this effect, and what

evidence they have produced is confusing.25 Because the sources

cited by the parties do suggest that the AHA does have a commercial

25
Custom’s initial Headquarters Ruling interpreting
subheading 4411.19.30, HTSUS, relied on a commercial designation
provided by the AHA. HQ 085913 at 2 (January 8, 1990) (citing
the AHA’s definition of “tileboard” as: a “hard, durable, and
water-resistant coating or finishing applied to fiberboard to
give it a ceramic-like or marble-like look.”). Likewise, the
Ruling in this case supported its conclusion by relying on the
opinion of the AHA, albeit with a different definition. HQ
960084 at 4 (noting that tileboard and flooring are separate
products). As noted above, Witex has submitted a letter from C.
Curtis Peterson (“Peterson”), the Executive Vice President of the
AHA, which offers yet another definition of “tileboard.” Peterson
Letter, Ex. 10 to Pl.’s Mem. at 4 (“Tileboard is a melamine
coated high density fiberboard panel product” and “[t]he defining
characteristic of tileboard paneling is its ‘finish’” which
Peterson defines by reference to the American National Standard
(ANSI/AHA A135.5-1995) for Class I Finishes.). Fourth, the
Government references the AHA Publication entitled “Tileboard
Wall Paneling” that “explains that tileboard paneling is suitable
for installation in any room in the home including kitchen and
laundry, and that it has a hard durable surface that is highly
resistant to stains and moisture when properly installed and
maintained.” Def.’s Mem. at 16-17. The Government did not cite
an exhibit number, but the Court found what appears to have been
that to which the Government is referring as an Exhibit to the
Amicus’ Brief. See Ex. A to Brief of Amicus Curiae Congoleum
Corp. in Supp. of Pl.’s Motion for Summ. J. (“Brief of the
Amicus”). Testimony by a representative of the AHA would help
the Court determine if these definitions can be reconciled.
Court No. 98-00360 Page 30

designation, testimony is required to determine to which, if any,

of these definitions the AHA subscribes.26

Second, evidence from industry practice, suggests that the

industry may define “tileboard” differently from common sources.

For example, the Terms of the Trade specifies that “tileboard” is

“[a] hardboard panel that has been embossed with a pattern and then

26
Both the Government, and Customs’ Ruling, reference the
AHA Publication entitled “Tileboard Wall Paneling” for the
proposition that: “tileboard paneling is suitable for
installation in any room in the home including kitchen and
laundry, and that it has a hard durable surface that is highly
resistant to stains and moisture when properly installed and
maintained.” Def.’s Mem. at 16-17; see also HQ 960084. This
publication does include language to this effect, but also notes
that “[h]ardboard tileboard paneling is covered by U.S.
Department of Commerce Voluntary Product Standard PS 59,
‘Prefinished Hardboard Paneling,’ (ANSI A 135.5-1973) Class 1
Finish,” American Hardboard Association, Tileboard Wall Paneling,
Ex. A to Amicus’ Brief at 4, which Witex’s product may satisfy,
see Aff. of Danny Thomas, Ex. 10 to Pl.’s Mem. at 3 (asserting
that Witex meets the ANSI A 135.5-1995 Standard). The meaning of
this passage is far from unequivocal. If a product meets the
ANSI A135.5-1973 finish specifications (which is presumably an
earlier verison of the ANSI A 135.5-1995 specifications cited by
Witex), does this make the tileboard suitable for application in
bathrooms and kitchens, or are these independent requirements?
The Government’s argument is a little difficult to understand
because on the one hand the AHA requires that “tileboard” pass
the ANSI A135.5-1973 Standard, which may include a test for
humidity resistance, cf. Peterson Letter, Ex. 10 to Pl.’s Mem. at
4 (citing the ANSI A 135.5-1995 Standard which includes a test
for “humidity resistance”), while on the other hand, the
Government also alleges that tileboard must have greater
properties for water resistance than those required by ANSI A
135.5-1973. This problem is made especially difficult because:
(a) the Government uses multiple means of referring to water
resistance such as “highly resistant to stains and moisture,”
Def.’s Mem. at 16, or “complete resistance to moisture,” id. at
19; (b) frequently discusses water-resistance in terms of where a
product is used, e.g., in bathrooms, Def.’s Mem. at 20; and (c)
has nowhere defined the required level of water resistance
necessary for a product to be considered “tileboard.”
Court No. 98-00360 Page 31

coated with epoxy. The resulting product is designed to look like

ceramic tile, for use in kitchens, bathrooms, etc.” Def.’s Mem. at

16 (citing Terms of the Trade 280 (3rd ed. 1993)).27 Using this

definition, the Government deduces that “tileboard” must have an

appearance of ceramic tile. Def.’s Mem. at 20-21. However, the

Government also cites literature from ABT Co., the manufacturer of

AquaTile® Embossed Tileboard, claiming that ABT Co.’s Tileboard has

“the look of fine tile and marble.” Def.’s Mem. at 17. Moreover,

in HQ 085913, discussing Plywood Panels Inc.’s “tileboard,” Customs

refers to a definition of “tileboard” provided by the AHA as

requiring “tileboard” to have a ceramic tile or marble appearance.

HQ 085913 at 1 (January 8, 1990).28 Plywood Panels Inc.’s

“tileboard” likewise has a “ceramic or marble” appearance. Id.,

Def.’s Mem. at 13 n.13. Depending on how one defines “designed to

look like ceramic tile,” ABT Co.’s and Plywood Panels Inc.’s

products would not be “tileboard” because of their marble

27
Note that this definition does not require products to be
used on walls, and does not necessarily require the product to be
water-resistant and to be non-laminated.
28
Evidence of this definition has not been submitted to the
Court. However, the Court may take judicial notice of the logic
and reasoning of Customs Rulings, cf. United States v. Mead, 533
U.S. 218, 235 (2001), especially when the Court is looking to
displace a commercial meaning used by Customs with a different
common meaning. The Court also notes that, as addressed in Note
25, this definition is only one variant of the possible AHA
definitions, and is the only one that requires a particular
appearance. Therefore, when giving the Government the benefit of
the doubt that appearance matters, there is some tension between
the commercial and common meaning.
Court No. 98-00360 Page 32

appearance. In other words, products the Government uses as

evidence of “tileboard” would in fact not be “tileboard.” Although

the evidence from manufacturers is of questionable probative value,

when joined with the purported AHA definition, this evidence leads

the Court to believe that there may be a commercial definition of

“tileboard” that deviates from the common meaning.

Because the parties have not adequately supported their

proffered commercial definitions of “tileboard” despite the fact

that a commercial designation seems probable, it is impossible for

the Court to exclude the possibility of a commercial designation and

arrive at the proper construction of subheading 4411.19.30, HTSUS.29

However, because of the Court’s duty to determine the correct

meaning of tariff terms, see Jarvis Clark Co. v. United States, 733

F.2d 873, 878 (Fed. Cir. 1984), Congress vested the Court of

International Trade with broad discretionary powers necessary to

resolve cases like this. See 28 U.S.C. § 2643. Specifically, 28

U.S.C. § 2643 (b) provides that:

29
Witex is joined by a companion case, Faus Group, slip op.
04-143 (CIT Nov. 15, 2004). The counsel in that case has rested
its resolution on the disposition of this case. Furthermore,
these proceedings are joined by Amicus Congoleum Corporation who
has secured an order from the Court suspending its case on the
Court’s Reserve Calendar pending resolution of this case.
Therefore, the interest in developing a cogent and correct theory
of subheading 4411.19.30, HTSUS, to apply to future cases (which
is not a mere possibility) is strong. Given that once a
commercial or common meaning is established, that meaning remains
controlling, see e.g., Intercontinental Marble Corp. v. United
States, 381 F.3d 1169, 1176 (Fed. Cir. 2004), it is important
that the Court not rush to define “tileboard” with less than
complete information as to its meaning.
Court No. 98-00360 Page 33

If the Court of International Trade is unable to
determine the correct decision on the basis of the
evidence presented in any civil action, the court may
order a retrial or rehearing for all purposes, or may
order such further administrative or adjudicative
procedures as the court considers necessary to enable it
to reach the correct decision.

28 U.S.C. § 2643 (emphasis added). In addition, USCIT Rule 56(d)

authorizes the Court, in this situation, to “direct[] such further

proceedings in the action as are just.” Therefore, in accordance

with its duty to determine the correct meaning of “tileboard,” the

Court finds that summary judgment is not appropriate at this time

and orders the parties to prepare an order governing preparation for

trial.

CONCLUSION

Because the Court finds the record insufficient to establish

a commercial designation for the term “tileboard,” or exclude the

possibility thereof, the cross motions for summary judgment are

denied. The parties shall jointly prepare an order governing

preparation for trial and submit it to the Court by December 15,

2004.

It is so ORDERED

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

November 15, 2004
New York, New York