Faus Group, Inc. v. United States

Slip Op. 04-143

United States Court of International Trade

FAUS GROUP, INC.,

Plaintiff,

Before: Pogue, Judge

v.

Court No. 03-00313

UNITED STATES,

Defendant.

[Cross-motions for summary judgment denied]

November 15, 2004

McKenna Long & Aldridge LLP (Peter Buck Feller, Daniel G. Jarcho,

and Brett Ian Harris) for Plaintiff.

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, Of

Counsel, Office of Assistant Chief Counsel, International Trade

Litigation, U.S. Customs and Border Protection, for Defendant.

OPINION

Pogue, Judge: Plaintiff, Faus Group, Inc. (“Faus”), challenges

the denial of its protest of the liquidation of its laminated

flooring panels (“merchandise” or “flooring panels”). The United

States Customs Service (“Customs” or “Government”)1 classified the

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).

Court No. 03-00313 Page 2

merchandise under heading 4411 of the Harmonized Tariff Schedule of

the of the United States (“HTSUS”) (2001) which covers “[f]iberboard

of wood or other ligneous materials, whether or not bonded with

resins or other organic substances.” Faus avers that its

merchandise should be classified under heading 4418, HTSUS, as

“[b]uilders’ joinery and carpentry of wood, including cellular wood

panels and assembled parquet panels; shingles and shakes.” Before

the Court are cross-motions for summary judgment pursuant to USCIT

Rule 56. The Court has exclusive jurisdiction over this case under

28 U.S.C. § 1581(a)(2000). Because the Court finds that Customs

properly classified the merchandise under heading 4411, HTSUS, but

the proper subheading cannot be determined, both parties’ motions

for summary judgment are denied.

UNDISPUTED FACTS

Faus is an importer of laminated flooring panels manufactured

from its parent, Industrias Auxiliares Faus S.L., in Spain. Decl.

Juan B. Flores (“Flores Decl.”) at para. 3 (Mar. 23, 2004).2 The

flooring panels are made with a core of fiberboard with a density

of between 0.85-.95 g/cm3. Id. at para. 5. Across the width of the

2

The Government accepts Faus’ factual assertions as true for

the purposes of the cross-motions of summary judgment, see Def.’s

Mem. Supp. Cross-Mot. Summ. J. & Opp’n Pl.’s Mot. Summ. J.

(“Def.’s Mem.”) at 9, except insofar as to whether Faus’ faux

flooring is water resistant, see Def.’s Resp. Pl.’s Statement

Material Facts at paras. 9-10.

Court No. 03-00313 Page 3

panels a color photograph of three parallel wood strips is

overlayed, with the ends of the parallel strips offset from each

other. Id. at para. 7, Product Sample, Pl.’s Ex. 1. The overlay

is embossed to further simulate the appearance of a natural wood

product.3 Flores Decl. at para. 5. The fiberboard core is backed

by a reinforced melamine layer. Id. The panels are non-structural

finished articles ready for installation by end-users. Id. at para.

10. Eight panels are packaged together, id. at para. 24, and each

panel is tongue-and-grooved along all of it edges and ends such that

it can be joined with other boards and permanently affixed with the

aid of adhesives, id. at para. 11. Overall, the product is designed

to have a “look, price and performance comparable to traditional

wood flooring.” Id. at para. 9.

SUMMARY OF PARTIES’ ARGUMENTS

Faus argues that the imported laminated flooring panels in

question should be classified under heading 4418, HTSUS, covering

“[b]uilders’ joinery and carpentry of wood, including cellular wood

panels and assembled parquet panels; shingles and shakes.”4 Pl.’s

3

Because the Court rejects Plaintiff’s contention that the

merchandise is properly classified in heading 4418, HTSUS, it has

no occasion to consider whether Faus’ product simulates parquet

flooring, and whether simulation of parquet flooring alone is

sufficient to classify a product as parquet panels under

subheading 4418.30, HTSUS.

4

4418.00 Builders’ joinery and carpentry of wood,

including cellular wood panels and

Court No. 03-00313 Page 4

Mem. Supp. Mot. Summ. J. at 7-24 (“Pl.’s Mem.”), Pl.’s Reply Supp.

Mot. Summ. J. (“Pl.’s Reply”) at 1-5. Faus contends that the

subject merchandises is properly classifiable under heading 4418,

HTSUS, because builders’ joinery, a term adopted from the Brussels

Nomenclature, covers flooring panels prepared with joints for

assembly. Pl.’s Mem. at 9-12, Pl.’s Reply at 1. Moreover, it

asserts that the plain language of heading 4418, HTSUS, and the

Explanatory Notes confirm this conclusion. Pl.’s Mem. at 13-14,

Pl.’s Reply at 1-2.5 Faus denies that the flooring panels can be

assembled parquet panels; shingles and

shakes

4418.10 Windows, French-windows and

their frames:

4418.20 Doors and their frames and

thresholds:

* * *

4418.30.00 Parquet panels

* * *

4418.90 Other:

5

Since January 1, 1989, products entering the United States

are classified according to the Harmonized Tariff Schedule of

the United States. Omnibus Trade and Competitiveness Act of

1988, Pub. L. No. 100-418, § 1217, 102 Stat. 1107, 1163 (1988);

see 19 U.S.C. § 3001 (1988). The HTSUS is the United States’

implementation of the International Convention on the Harmonized

Commodity Description and Coding System (“Convention”), 102 Stat.

1107, 1147, which was the culmination of a ten-year effort by the

United States and its major trading partners to develop “a single

modern product nomenclature for international use as a standard

system of classifying goods for customs.” Booklet 18 (§ 50.2

Classification of Merch.), 2 Commentary, Customs Law & Admin.

(3rd ed. 2004) at 5. Part of this effort required the

Court No. 03-00313 Page 5

classified under heading 4411, HTSUS, which covers “[f]iberboard of

wood or other ligneous materials, whether or not bonded with resins

or other organic substances,”6 because Note 4 to Chapter 44 provides

reconciliation of the Tariff Schedule of the United States, and

the Brussels Nomenclature, a common nomenclature adopted by

European nations in the 1950s, which were two major influences on

the Convention. See Customs Co-Operation Council, Introducing the

International Convention on the Harmonized Commodity Description

and Coding System 13, 19-20(1987).

To oversee the implementation of the harmonized system, the

Convention empowered the Customs Cooperation Council (“CCC”),

renamed the World Customs Organization (“WCO”) in 1994, to

publish explanatory notes “constitut[ing] the official

interpretation of the Harmonized System at the International

level,” id. at 36, and to recommend amendments to the

nomenclature, Convention Article 16 found at

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

Explanatory Notes published by the World Customs Organization are

amended regularly to help resolve questions as to the proper

classification of goods.

6

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

Court No. 03-00313 Page 6

that “[p]roducts of heading 4410, 4411 or 4412 may be worked to form

the shapes provided for in respect of the articles of heading 4409

[which includes tonguing and grooving] . . . or submitted to any

other operation provided it does not give them the character of

articles of other headings.” Pl.’s Mem. at 24-27, Pl.’s Reply at

5-8. Faus claims that because its merchandise has been tongue-and-

grooved and surface coated, and these operations give the

merchandise the character of builders’ joinery, the merchandise

cannot be classified under heading 4411, HTSUS. See Id. Last, Faus

asserts that even if the merchandise is classified under heading

4411, HTSUS, 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 wall, ceilings or other parts of buildings.”7 Pl.’s Mem. at 27

n.12.

The Government avers that the merchandise is not classifiable

under heading 4418, HTSUS, because heading 4418, HTSUS, covers only

products specifically mentioned in the heading and other builders’

products not covered by other tariff provisions. Def.’s Mem. at 17-

of buildings

4411.19.40 Other

7

Faus and the Government also dispute the proper subheading

under heading 4418, HTSUS. Because the Court rejects Faus’

arguments that the merchandise is properly classifiable under

heading 4418, HTSUS, the Court will not summarize those

arguments.

Court No. 03-00313 Page 7

19, Def.’s Reply Pl.’s Resp. Def.’s Cross-Mot. Summ. J. at 4-5

(“Def.’s Reply”), Def.’s Resp. Ct.’s Questions Prior Oral Argument

Parties’ Cross-Mot. Summ. J. at 2-3 (“Def.’s Resp.”). The

Government claims that Faus’ reading of heading 4418, HTSUS, creates

conflicts with other headings. Id. Moreover, the Government

asserts that an interpretation of heading 4418, HTSUS, by a Canadian

customs tribunal supports its reading. Def.’s Mem. at 23 n.12.

The Government further asserts that even if the merchandise

can be classified under heading 4418, HTSUS, heading 4411, HTSUS,

is the more specific and accurate heading for the merchandise.

Def.’s Mem. at 29-30. The Government challenges Faus’

interpretation of Note 4 to Chapter 44, asserting that the language,

“[p]roducts of heading 4410, 4411 or 4412 may be worked to form the

shapes provided for in respect of the articles of heading 4409

[which includes tonguing and grooving] . . . or submitted to any

other operation provided it does not give them the character of

articles of other headings” supports the classification of the

merchandise under heading 4411, HTSUS. Id. at 9-16, Def.’s Reply

at 9-12. More specifically, the Government claims that Faus

misconstrues the antecedent to the word “it,” which only refers to

“any other operation.” Def.’s Mem. at 11-12. Therefore, the

Government argues, when properly construed, Note 4 indicates that

products may be tongue-and-grooved and still remain in heading 4411,

HTSUS. Id. Last, the Government argues that the merchandise is not

tileboard and therefore should be classified under subheading

Court No. 03-00313 Page 8

4411.19.40, HTSUS, the basket provision for “[f]iberboard of a

density exceeding 0.8 g/cm3.” Def.’s Mem. at 2.

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 review as to the meaning of the tariff

provision 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

to judgment as a matter of law.” USCIT R. 56(c) (emphases 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, 248 (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

Court No. 03-00313 Page 9

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). 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 correct classification

for the merchandise.” Id. at 1440 (citing GRI 1, 6, HTSUS). As it

is possible that goods may be, “prima facie, classifiable under two

or more headings,” GRI 3, HTSUS, provides additional guidance in

choosing between the relevant headings. According to this

framework, the Court must first determine the proper heading for the

flooring panels.

In this case, the parties have submitted two possible headings

under which the merchandise may fall: headings 4411, HTSUS and 4418,

HTSUS. Because the applicability of heading 4411, HTSUS, is

dependent on the meaning of heading 4418, HTSUS, by virtue of Note

Court No. 03-00313 Page 10

4 to Chapter 44, the Court will first construe heading 4418, HTSUS,

and then heading 4411, HTSUS. Because the Court finds that the

flooring panels appear to be prima facie classifiable under both

headings, the Court will next determine which of the two headings

is the proper heading for the merchandise. After concluding that

heading 4411, HTSUS, is the proper heading for Faus’ merchandise,

the Court will consider whether Faus’ merchandise is “tileboard,”

ultimately concluding that there are still triable issues precluding

summary judgment.

I. Choosing the Proper Heading

A. Heading 4418, HTSUS

The Court first looks to the language of heading 4418, HTSUS.

When classifying merchandise, “HTSUS terms are to be construed

according to their common and commercial meanings, which are

presumed to be the same.” Carl Zeiss, Inc. v. United States, 195

F.3d 1375, 1379 (Fed. Cir. 1999). The Court may only set aside the

common meanings when so directed by the legislative history,8 where

a party proves that a term “has a different commercial meaning that

is definite, uniform, and general throughout the trade,” see id. at

8

Neither the parties, nor the Court, have found any

Congressional history on heading 4418, HTSUS. Builders’ joinery

was not part of the Tariff Schedule of the United States and was

inserted into the United States nomenclature as part of the

United States’ adoption of the Harmonized Tariff Schedule.

Court No. 03-00313 Page 11

1379,9 or where application of the common meaning would produce

absurd or anomalous results, Pillowtex Corp. v. United States, 21

CIT 1154, 1157, 983 F. Supp. 188, 191 (1997).

Heading 4418, HTSUS, covers “[b]uilders’ joinery and carpentry

of wood, including cellular wood panels and assembled parquet

panels; shingles and shakes.” Heading 4418, HTSUS. Although the

merchandise is made of fiberboard, not wood, Note 3 to Chapter 44

specifies that heading 4418, HTSUS, applies to “articles of the

respective descriptions of particle board or similar board,

fiberboard, laminated wood or densified wood as they apply to such

articles of wood.” (Emphasis added). Both parties agree that the

merchandise comprises neither carpentry of wood10 nor shingles or

shakes.11 Therefore, if the merchandise is to fall within heading

9

There appears to be no commercial meaning for the terms in

heading 4418, HTSUS. Dep. of Paul Garretto, Pl.’s Ex. 4 at 113

(“The industry in the United States does not use [the] term

[builders’ joinery].”).

10

According to the Explanatory Notes, carpentry of wood

involves woodwork “used for structural purposes or in

scaffoldings, arch supports . . . .” Harmonized Commodity

Description and Coding System Explanatory Note 44.18 at 686-87

(2nd ed. 1996) (“Explanatory Notes”). As Faus has agreed that

its flooring panels are non-structural, see Flores Decl. at para.

10, the merchandise cannot constitute carpentry of wood. The

Explanatory Notes “do not constitute controlling legislative

history but nonetheless are intended to clarify the scope of

[the] HTSUS [] and to offer guidance” in its interpretation, Mita

Copystar America v. United States, 21 F.3d 1079, 1082 (1994).

11

Shingles are a “[r]oofing material made from wood or other

material” and shakes are a “[r]oofing material produced from

wood.” Terms of the Trade, supra at 297 & 299 (4th ed. 2000).

There is no evidence in the record that the flooring panels are

used on roofs.

Court No. 03-00313 Page 12

4418, HTSUS, it must be “builders’ joinery.”

i. Choosing the proper term:

Both parties have argued, albeit in different ways, that

“builders’ joinery” is a term of art. A “term of art” is a “word

or phrase having a specific, precise meaning in a given specialty,

apart from its general meaning in ordinary contexts.” Black’s Law

Dictionary 1511 (8th ed. 2004). Consequently, if “builders’

joinery” is a term of art, neither searching through dictionaries

for the words “builders” and “joinery” may be appropriate nor may

definitions provided by common sources be applicable. In

considering this question, the Court is mindful that terms of art

are generally disfavored. See, e.g., Lynch v. Alworth-Stephens Co.,

267 U.S. 364, 370 (1920) (“‘[T]he plain . . . meaning of a statute

is always to be preferred to any curious, narrow, hidden sense that

nothing but the exigency of a hard case and the ingenuity and study

of an acute and powerful intellect would discover.’”) (quoting Lynch

v. Alworth-Stephens Co., 294 Fed. 194 (8th Cir. 1923), Campbell v.

Merit Sys. Protection Bd., 27 F.3d 1560, 1567 (Fed. Cir. 1994),

Amity Leather Co. v. United States, 20 CIT 1049, 1053-54, 939 F.

Supp. 891, 895 (1996); cf. Carl Zeiss, 195 F.3d at 1379 (a party

must prove “that [a term] has a different commercial meaning that

is definite, uniform, and general throughout the trade”).

Additionally, in evaluating this question, the Court notes that the

Explanatory Notes refer to the term as just “joinery,” see EN 44.18,

Court No. 03-00313 Page 13

the heading in the Brussels Nomenclature was “[b]uilders’ carpentry

and joinery,” see Pl.’s Mem. at 9, and that there are no dictionary

or other definitions of “builders’ joinery” as a single term.

Faus argues that “builders’ joinery” was a term employed by the

Brussels Nomenclature and incorporated into the United States

nomenclature upon the adoption of the HTSUS. Pl.’s Mem. at 10-12.

Therefore, when heading 4418, HTSUS, was incorporated into the

HTSUS, it was incorporated as understood under the Brussels

Nomenclature. Id. at 10-11 (citing Felix Frankfurter, Some

Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537

(1947)). Accordingly, Faus argues that the Court should interpret

the provision as it was understood under the Brussels

Nomenclature.12 Id. at 11-12. However, Faus fails to point to any

definition of these terms as understood under the Brussels

Nomenclature that offers any more understanding than the Court has

with the current text and Explanatory Notes.13 Cf. Lonza Inc. v.

United States, 46 F.3d 1098, 1106 (Fed. Cir. 1995) (“Absent an

express definition, however, the court may consult dictionaries,

12

The Convention requires that each contracting nation “use

all the headings and subheadings” adopted, Convention at Article

3(1)(i), but may create “subdivisions classifying goods beyond

the level of the Harmonized System.” Id. Convention at Article

3(3). For example, in this case, the heading 4411, and

subheading 4411.11, HTSUS, for fiberboard with densities over

0.8 g/cm3, are set at the international level, whereas the sub-

subheading 4411.19.30, HTSUS, covering tileboard, is a purely

domestic creation specific to the United States tariff schedule.

13

Faus cites to both the Brussels Nomenclature heading 44.23

and the accompanying Explanatory Notes. Pl.’s Mem. at 9-12.

Court No. 03-00313 Page 14

lexicons, scientific authorities, and other such reliable sources

in its effort to determine common meaning.”). Nor has Faus

submitted any evidence that the term obtained a special meaning

different than the one employed by common sources.

Alternatively, the Government argues that “builders’ joinery,”

as used in heading 4418, HTSUS, is a term of art that has a meaning

specific to the HTSUS. See, e.g., Def.’s Resp. at 2 (“Although, as

noted, we do not dispute the definition provided by the Court is

appropriate for general purposes, we do not agree that this broad

interpretation properly construes the tariff term ‘builders’

joinery,’ which appears only in Heading 4418.") (emphasis in

orginal). The Court does not dispute that a common meaning may be

colored by the context in which the word is used. However, there

is a distinction between coloring the meaning of a word and creating

a new definition of a term specific to the HTSUS which bears little

resemblance to the terms in the heading.14 If a tariff term were to

14

At oral argument, the Government maintained that its

argument was not a “term of art” argument, rather an argument

based on the principle of in pari materia. The Government

correctly notes that words do gather meaning from context.

Accordingly, “[w]here a tariff term has various definitions or

meanings and has broad and narrow interpretations, the court must

determine which definition best invokes the legislative intent.”

Marubeni Am. Corp. v. United States, 19 CIT 1249, 1253, 905 F.

Supp. 1101, 1105 (1995) (emphasis added). However, as the

Government admits, it “did not offer any alternative definitions

of the general term ‘builders’ joinery.’” Def.’s Resp. at 1.

Consequently, the Government has provided no definition of

builders’ joinery to prefer without adding language to the HTSUS;

the principle of in pari materia does not grant a court license

to add language to a heading, only to prefer a definition or

meaning already existing. Cf. Church of the Holy Trinity v.

United States, 143 U.S. 457 (1892) (exceptions can be read into

Court No. 03-00313 Page 15

have a specific definition that bears little resemblance to the

common meaning of the tariff term, the WCO or Congress most likely

would have included a definition in the HTSUS or the U.S. Additional

Notes. Cf. Chapter 44, Note 2, HTSUS (defining “densified wood”);

Chapter 44, U.S. Note 1(a), HTSUS (defining “wood waste”); Chapter

44, U.S. Note 1(b), HTSUS (defining “standard wood molding”);

Chapter 44, U.S. Note 1(c), HTSUS (defining “surface covered”).

Likewise, the Explanatory Notes’ description of “joinery” in no way

supports the Government’s proffered definition. See EN 44.18 and

infra at 19-20. Accordingly, there is no reason to believe that

“builders’ joinery,” as used in the tariff schedule, has a different

meaning than the meaning used in common parlance. Therefore, the

Court will define the language “builders’ joinery” according to the

unambiguous statutory language only where absurd results would

occur otherwise and as a last resort). For example, if the

Government wanted to limit builders’ joinery by the type of

allowable joint, see infra at 25-27, or wanted to read in a

limitation by virtue of the “including cellular wood panels and

assembled parquet panels” clause, the Court would have a textual

hook to justify the Government’s assertions. (The “including . .

. assembled parquet panels” language appears to be addressing

itself to heading 4409, HTSUS, which covers “[w]ood (including

strips and friezes for parquet flooring, not assembled),” and

does not necessarily have direct ramifications for heading 4411,

HTSUS; cellular wood panels appear to be classifiable in multiple

headings, see Headquarters Ruling (“HQ”) 964683 (August 5, 2002),

rendering the “including” language important in simplifying the

classification of cellular wood panels.) However, the Government

has adopted the position that heading 4418, HTSUS, includes “only

the products expressly identified in Heading 4418 and builders’

products that are either not described in other provisions or

that have undergone operations beyond those provided for in other

provisions.” Def.’s Mem. at 17. This is not a definition but a

result and a result not imputable to the words “builders’

joinery.” The Court uses definitions to arrive at the right

result, not vice versa.

Court No. 03-00313 Page 16

definitions of its two composite words, “builders’” and “joinery.”

ii. Defining builders’ joinery:

Starting with the word “builders’,” dictionaries generally

define a “builder” as one who constructs a building. See II Oxford

English Dictionary 631 (2nd ed. 1989) (“[o]ne who builds; the

erector of a building.” ); Webster’s II New Riverside University

Dictionary 206 (1988) (“[o]ne that builds, esp. a person who

contracts for and supervises the construction of a building”);

American Heritage Dictionary 250 (3rd ed. 1992) (same); J. Stewart

Stein, Construction Glossary 803 (2nd ed. 1993)(“Individual,

company, or corporation who engage [sic] in building construction”);

but cf. Webster’s Third New International Dictionary 292 (1993)

(“one that builds: as . . . a worker (as a carpenter, shipwright,

or mason) whose occupation is to build.”).15 Because “builders’” is

an adjective that modifies “joinery,” and builders are involved in

the construction of buildings, the addition of the word “builders’”

alerts the reader that only those definitions relating to the

construction of buildings are relevant. Therefore, the Court deems

only definitions of “joinery” involving the construction of

buildings relevant and discards those that do not involve the

15

Given that the definitions, other than Webster’s, only

include buildings rather than boats or ships, and because the

products in this case are clearly for building use, the

definitions of the other dictionaries is preferred here.

Court No. 03-00313 Page 17

construction of buildings.

Definitions of “joinery” vary slightly more, and are less

precise, than the definitions of “builder.” The Dictionary of

Architecture and Construction defines joinery as “[t]he craft of

woodworking by joining pieces of wood, esp. of the finish and trim

workings of the interior of a structure, such as doors, paneling,

sashes, etc., as distinguished from carpentry, which suggests

framing and rough work.” Dictionary of Architecture & Construction

519 (3rd ed. 2000) (emphasis in original). The Columbia

Encyclopedia similarly defines joinery as the “craft of assembling

exposed woodwork in the interiors of buildings.” The Columbia

Encyclopedia (6th ed. 2001) available at http://www.

bartleby.com/65/ jo/joinery.html. Webster’s Third New International

Dictionary defines “joinery” “as the art or trade of a joiner” where

a “joiner” is defined as “a person whose occupation is to construct

articles by joining pieces of wood: one who does the woodwork (as

doors or stairs) necessary for the finishing of buildings.”

Webster’s Third, supra at 1219. The Oxford English Dictionary

defines “joinery” as “[t]he art or occupation of a joiner, the

construction of wooden furniture, fittings, etc. . . .” wherein

“joiner” is defined as “[a] craftsman whose occupation it is to

construct things by joining pieces of wood; a worker in wood who

does lighter and more ornamental work than that of a carpenter, as

the construction of the furniture and fittings of a house, ship,

Court No. 03-00313 Page 18

etc.” VIII Oxford English Dictionary, at 262 (emphasis in orginal).

The American Heritage Dictionary defines “joinery” as “1. The art

or craft of a joiner: cabinetmaking. 2. work done by a joiner; fine

woodwork” where “joiner” is “[a] carpenter, especially a

cabinetmaker.” American Heritage, supra at 971. The Terms of the

Trade defines “joinery” as, “1. A term used in Europe to denote the

higher grades of lumber suitable for such uses as cabinetry,

millwork, or interior trim. 2. The products made by a joiner,”

Terms of the Trade 186 (4th ed. 2000).

Finally, the Explanatory Note for 44.18 states that:

This heading applies to [1] woodwork, including that of

wood marquetry or inlaid wood, [2] used in the

construction of any kind of building, etc., [3] in the

form of assembled goods or as recognisable unassembled

pieces (e.g., prepared with tenons, mortises, dovetails

or other similar joints for assembly), whether or not

with their metal fittings such as hinges, locks, etc.

EN 44.18 at 686. The Explanatory Note further comments that joinery

“applies more particularly to builders’ fittings16 (such as doors,

windows, shutters, stairs, door or window frames).” Id. The

Explanatory Notes are especially helpful in this context because the

United States adopted the Customs Cooperation Council’s language for

heading 4418, HTSUS. Cf. Pima Western, Inc. v. United States, 20

CIT 110, 113, 915 F. Supp. 399, 402 (1996) (“Where the United States

has adopted headings, subheadings, and related chapter notes

16

Fittings are “furnishings or fixtures.” American Heritage,

supra at 688.

Court No. 03-00313 Page 19

verbatim from the CCC’s version, the CCC’s Explanatory Notes are

especially helpful in interpreting the HTSUS, albeit not

dispositive.”).

From these definitions a general pattern emerges that

“builders’ joinery” relates to: a) already joined pieces of wood or

wood products capable of being joined with joints; b) that the

products function as non-structural elements of a building; and c)

that the wood is used as woodworking, i.e., finishing, for the

interior of a building.17

iii. The Government’s Proposed Construction:

The Government does not offer the Court a definition of

builders’ joinery. See Def.’s Mem. at 16-23, Def.’s Reply at 4-

13.18 Nor does it ”dispute [that] the definition provided by the

17

Faus cites to Am. Bayridge Corp. v. United States, 22 CIT

1129, 1142, 35 F. Supp. 2d 922, 932 (1998) to support its

definition of builders’ joinery, noting that it was “vacated on

other grounds.” Pl.’s Mem. at 16. That case was appealed and

the Federal Circuit “vacate[d] that portion of the Court of

International Trade's judgment that relates to the classification

of predrilled studs.” American Bayridge Corp. v. United States,

21 I.T.R.D. (BNA) 1766, 1767 (Fed. Cir. 1999) (unpublished

decision); see also 217 F.3d 857 (Fed. Cir. 1999)). Because the

classification portion of the decision was vacated, reliance or

citation thereto is precluded.

18

The Government also argues that the instant case is

controlled by the Federal Circuit’s decision in Boen Hardwood

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

Def.’s Mem. at 15. The Government claims that “[g]iven the

similarity between the Boen merchandise and Faus’s merchandise,

this Court should follow the CAFC and classify Faus’s flooring

panels in the materials provision, in this case, the ‘fiberboard

Court No. 03-00313 Page 20

Court is appropriate for general purposes; [however the Government

does] not agree that this broad interpretation properly construes

the tariff term ‘builders’ joinery,’ which appears only in Heading

4418.” See, e.g., Def.’s Resp. at 2. Instead, the Government

proposes an alternative reading of “builders’ joinery” which covers

“[1] only the products expressly identified in Heading 4418 and [2]

builders’ products that are either not described in other provisions

or [3] that have undergone operations beyond those provided for in

other provisions.” Def.’s Mem. at 17. To support its argument, the

Government asserts that if the Court uses the common meaning,

heading 4418, HTSUS, then heading 4418, HTSUS, will subsume or

conflict with other headings, thereby rendering them superfluous or

impermissibly redundant. Id. at 17-18.19

provision.’” Def.’s Mem. at 15. However, Boen dealt with the

classification of certain plywood panels under heading 4412,

HTSUS. The Federal Circuit did not discuss heading 4418, HTSUS,

and the issue was not briefed to this Court. Given that small

nuances in language can have dramatic impacts on classifying

goods, cf. the discussion below of the word “it,” it is

unknowable whether, and to what extent, that decision has

implications for this case. However, the Court does note that

the Explanatory Note for 44.18 states that “plywood panels, even

if surface treated for the purposes of concrete shuttering, are

classified in heading 44.12,” and goes on to state that “[t]he

heading does not cover: (a) plywood panels or veneered panels,

used as flooring panels, which have a thin veneer of wood affixed

to the surface, so as to simulate a flooring panel made up of

parquet strips . . . .” Explanatory Note 44.18 at 686. There is

no similar exclusionary language for fiberboard products.

19

Nor could the Government argue that builders’ joinery

includes only those products contained in the Heading and

Explanatory Notes. The Explanatory Note reads, in part,

“‘joinery’ applies more particularly to builders’ fittings (such

Court No. 03-00313 Page 21

The Government’s proposed reading of “builders’ joinery” is

unpersuasive for three reasons. First, what the Government means

by “not described in other sections” is uncertain and unworkable.

If construed broadly, it means that only cellular wood panels,

assembled wood panels, and builders’ products not covered by other

headings are classifiable under heading 4418, HTSUS. However,

Chapter 44 contains a basket provision for “[o]ther articles of

wood.” Heading 4421, HTSUS; cf. Def.’s Mem. at 18 (claiming that

shutters cannot be classifiable under heading 4418, HTSUS, because

they are classifiable under heading 4421, HTSUS). Therefore, all

wood products are covered by other headings in Chapter 44 (and other

chapters). Consequently, there would be nothing left to commit to

heading 4418, HTSUS. On the other hand, if “not described in other

sections” is meant only to cover those products not specifically

named in other provisions, the Government could not prevail here

because it seeks to classify Faus’ merchandise in a basket provision

under subheading 4411.19.40, HTSUS. In other words, Faus’

merchandise is “not described in other sections” and therefore would

fall under heading 4418, HTSUS, under the Government’s own proposed

as doors, windows . . . .” EN 44.18 at 686 (Emphasis added). The

words “such as” clearly state that this is a non-exhaustive list.

Cf. Park B. Smith, Ltd v. United States, 347 F.3d 922, 928 (Fed.

Cir. 2003) (rejecting a similar argument when the text employed

the phrase “for example” which is “illustrative and informative,

but not limiting.”). By not listing every possible product that

may fall within the term builders’ joinery, or including a catch-

all, the drafters did not intend that builders’ joinery be a

special term of art as defined only in the Explanatory Notes.

Court No. 03-00313 Page 22

construction. Likewise, the second prong of the Government’s

proposed reading is problematic. As will be discussed below, what

falls within headings 4410, 4411 and 4412, HTSUS, is dependent on

the “character of articles of other headings.” Chapter 44 Note 4,

HTSUS. Because “builders’ joinery” would lack any “character” under

the Government’s reading, Note 4 would could not be triggered,

rendering all products classifiable according to their input

materials under headings 4410, 4411 and 4412, HTSUS.

Second, in an effort to avoid conflicts with other provisions,

the Government completely ignores the words actually appearing in

heading 4418, HTSUS. The Government’s proposed definition

essentially seeks to convert “builders’ joinery” into “builders’

other.” This reading is made unlikely by the presence of a basket

provision in Chapter 44, i.e., heading 4421, HTSUS. What this

suggests is that if the drafters wanted to make heading 4418, HTSUS,

a basket provision for builders’ products, they knew how to do so

without using obscure terms like “builders’ joinery.” Cf. Sosa v.

Alvarez-Machain, 124 S. Ct. 2739, 2754 n.9 (2004) (“when it is clear

that Congress knew how to specify [a term, i.e., “other”] when it

wanted to, [the government’s argument] runs afoul of the usual rule

that ‘when the legislature uses certain language in one part of the

statute and different language in another, the court assumes

different meanings were intended.’”) (citing 2A N. Singer, Statute

and Statutory Construction § 46:06 at 194 (6th ed. 2000)).

Court No. 03-00313 Page 23

Third, contrary to the Government’s concern, the Court’s

reading will not render other provisions nugatory because there are

limiting principles in the definition of “builders’ joinery.” Cf.

Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1311 (Fed. Cir.

2003). For example, the Government is concerned that “decking” would

be included within 4418, HTSUS, rather than under headings 4407 and

4409, HTSUS. Def.’s Mem. at 18.20 However, because the definition

derived by the Court requires use for interior woodwork or fittings

of a non-structural nature, wood intended for decking would not fall

20

The Court also notes that “decking” is not explicitly, or

implicitly, mentioned in 4407, HTSUS, or 4409, HTSUS, so there

appears no reason why decking must necessarily be classified

there. The Government also cites other examples, i.e., worked

plywood and veneered panels (heading 4412), shutters (heading

4421), kitchen cabinets (heading 9403), wood molding (heading

4409), coniferous wood (heading 4409) and nonconiferous wood

flooring (heading 4409), Def.’s Mem. at 18, Def.’s Reply at 9,

and has urged the Court to reconcile these provisions with the

proposed definition of heading 4418, HTSUS, Def.’s Resp. at 2-

3. Worked plywood and veneered panels are explicitly excepted

from heading 4418, HTSUS, according to the Explanatory Notes.

See infra note 21. Some shutters are used on the exterior of

buildings, thereby precluding them from being used on the

interior of buildings as required by the Court’s definition;

moreover, shutters are given as a specific example of builders’

joinery by the Explanatory Notes. EN 44.18 at 686. Kitchen

cabinets are not mentioned eo nomine under heading 9403, HTSUS,

but in the non-binding statistical suffixes. See Pillowtex Corp.

v. United States, 21 CIT 1154, 1157, 983 F. Supp. 188, 191 (1997)

(“statistical suffixes are not part of the legally binding,

statutory language of HTSUS. Therefore, the inclusion of [the

merchandise in controversy] in the statistical suffix to HTSUS

9404.90.80 is irrelevant.”) (citing Pima Western, Inc. v. United

States, 20 CIT 110, 115, 915 F. Supp. 399, 404 (1996)).

Moreover, these products, as well as the others, may not be

classified under heading 4418, HTSUS, because other headings may

be more specific to the particular good. See infra at 46-52.

Court No. 03-00313 Page 24

under heading 4418, HTSUS. Similarly, the Government expresses

concern over the classification of “tileboard” which is currently

classifiable under subheading 4411.19.30, HTSUS. Id. The

definition of builders’ joinery requires that products be joined or

capable of being joined together with the aid of joints. However,

the only form of “tileboard” the Government recognizes has bull-

nosed edges,21 which prevent the joining together of tileboard

panels, thereby excluding them from 4418, HTSUS.22

Alternatively, the solution may lie in the very nature of the

problem itself. Under GRI 3, products are classified under the more

specific heading. Accordingly, the more broad a provision is, the

less likely it will be the more specific provision. There is no

reason why the drafters would not have preferred this solution to

cure any defect of heading 4418's, HTSUS, broad scope. Cf.

Intercontinental Marble Corp. v. United States, 381 F.3d 1169, 1176

(Fed. Cir. 2004). In sum, the Government has offered no sufficient

justification to re-write the plain language of the heading.

21

See Terms of the Trade, supra at 47 (“bullnose” means

“[t]he process of rounding an edge of a board used as shelving,

stadium seating, stepping, etc.”).

22

For instance, JJ Barker’s Tileboard product discussed in

HQ 960084 as the model for defining “tileboard,” has bull-nosed

edges which make it incapable of being joined with like products.

In fact, installation requires leaving an 1/8" gap between panels

for the 100% silicone seams. See Installation,

http://www.barker.ca/?section=barkertile&sub=Installation; see

also HQ 085913 (January 8, 1990) (discussing Plywood Panels

Inc.’s “tileboard”).

Court No. 03-00313 Page 25

iv. Nature of the Joints:

Alternatively, the definition of “builders’ joinery” may be

limited by the type of joints it includes, e.g., that tongue-and-

grooved joints may be distinguishable from the types of joints

listed as exemplars in the Explanatory Notes. See Def.’s Mem. at

23 n. 12; see also HFI Hardwood Flooring Inc. v. Deputy Minister of

National Revenue, Appeal No. AP-94-188 (July 17, 1995), Ex. B to

Def.’s Mem.23 The Government argues that because tongue-and-grooved

joints are included in heading 4409, HTSUS,24 tongue-and-grooved

joints cannot be included within meaning of heading 4418, HTSUS.

Id.25 First, if tongue-and-grooved joints did not meet the

23

The Canadian Trade Tribunal found that “builders’ joinery”

had a commercial meaning within Canadian commerce. Because

commercial designations must be established for commerce in the

United States, where no proof has been offered to support a

commercial designation within the United States, the Court is

bound by the common meaning of the tariff term. Russell

Stadelman & Co. v. United States, 242 F.3d 1044, 1049 (Fed. Cir.

2001) (“in considering the commercial designation of a tariff

term, only commercial use of that term in the United States is

relevant.”).

24

Heading 4409, HTSUS, reads: “Wood (including strips and

friezes for parquet flooring, not assembled) continuously shaped

(tongued, grooved, rebated, chamfered, V-jointed, beaded, molded,

rounded or the like) along any of its edges, or faces, whether or

not planed, sanded or finger-jointed.” The 2002 Amendment added

the words “and ends” after “edges”, and replaced “finger-jointed”

with “edge-jointed.”

25

By way of comparison, the Terms of the Trade, defines a

mortise and tenon joint as: “A type of corner joint in which

projections, called tenons, on one piece of lumber fit into

slots, called mortises, on another piece.” Terms of the Trade,

Court No. 03-00313 Page 26

requirements of heading 4418, HTSUS, then including the words

“tongued” and “grooved” in heading 4409, HTSUS, would be

unnecessary. Second, Customs has consistently classified wood

products that were tongue-and-grooved under 4418, HTSUS. See, e.g.,

NY K82706 (Feb. 20, 2004); NY J87603 (Aug. 18, 2003); HQ 956363

(Sept. 2, 1994); HQ 955712 (Apr. 20, 1994); HQ 952940 (Mar. 24,

1993). In fact, during discussions in the WCO on whether wood

products which were tongue-and-grooved along all their edges and

ends were classifiable under heading 4409, HTSUS, or heading 4418,

HTSUS, the United States maintained that said products should be

classified under heading 4418, HTSUS, because heading 4409, HTSUS,

only included products tongue-and-grooved along their “edges,” not

“ends.” Def.’s Mem. at 21-22. To resolve this controversy, the WCO

amended the Explanatory Notes to heading 4411, HTSUS; however, the

United States did not acquiesce to this amendment. Id. Rather, it

was only after the WCO amended heading 4409, HTSUS, that Customs

finally classified wood products tongue-and-grooved along their ends

supra at 218, cf. Dictionary of Architecture and Construction

supra at 602 (“A joint between two wood members that is formed by

fitting a tenon at the end of the one member into a mortise in

the other member . . . .”) (emphasis in original). A “dovetail”

is an “interlocking joint used in cabinetry.” Terms of the Trade

at 106. Lastly, a “tongue and groove” joint is “[l]umber

machined to have a groove on one side and a protruding tongue on

the other, so that pieces will fit snugly together, with the

tongue of one fitting into the groove of the other.” Id. at 344;

cf. Dictionary of Architecture and Construction at 944 (“A joint

formed by the insertion of the tongue of one member into the

corresponding groove of another.”).

Court No. 03-00313 Page 27

in heading 4409, HTSUS, in 2002. Id.26 Given that the amendment

did not alter heading 4418, HTSUS, and that Customs still classifies

some tongue-and-grooved flooring panels under heading 4418, HTSUS,

this amendment did not necessarily disqualify fiberboard products

having only tongue-and-grooved joints from heading 4418, HTSUS.27

Because of the United States’ position before the WCO, its long-

standing practice that it still maintains, the fact that the common

meanings of the joints involved do not contradict this position, and

the Government’s apparent unwillingness to support its own argument

in briefing subsequent to its initial brief, the Court does not find

the Government’s attempt to distinguish Faus’ product on the basis

of its joints meritorious.

v. Applying the law to the facts:

The Court must next determine whether Faus’ merchandise has the

26

Consequently, any meaning that attached with the amendment

is inconsequential to this case as the entries occurred prior to

2002. Pl.’s Mem. at 18-19 n.6, Pl.’s Reply at 4 n.4.

27

Faus claims that this 2002 Amendment informs this case

because it signaled that tongue-and-grooved wood should be

classified under heading 4409, HTSUS, but left fiberboard under

heading 4418, HTSUS. This expressio unius est exclusio alterius

argument is unpersuasive. The WCO may have just been signaling

that it was a mistake to classify tongue-and-grooved products

under heading 4418, HTSUS, to begin with, not implicitly

ratifying Custom’s classification scheme. Given that Faus does

not cite any classification cases of fiberboard products raising

this issue prior to the 2002 Amendment, heading 4411, HTSUS, may

just not have been considered problematic, and therefore

warranting amending by the WCO.

Court No. 03-00313 Page 28

character and use befitting the term “builders’ joinery.” Using the

definition established above, Faus’ merchandise appears to be

covered by heading 4418, HTSUS. Faus’ flooring is designed to be:

(a) assembled from many panels, sold together in sets of eight, and

joined together by tongue-and-grooved joints, Flores Decl. at para.

11, 24; (b) used in the construction of a building in a non-

structural role, id. at para. 10; and (c) as part of the finishing

or woodwork of a building, id. at para. 9. Accordingly, the Court

finds that Faus’ merchandise meets the definition of “builders’

joinery.”

B. Classification Under 4411, HTSUS

The Government contends that even if the merchandise qualifies

as builders’ joinery, the merchandise is nonetheless more

specifically classifiable under subheading 4411, HTSUS. Heading

4411, HTSUS, covers “[f]iberboard of wood and other ligneous

materials, whether or not bonded with resins or other organic

substances.”28 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). Because eo nomine

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

28

Fiberboard is a “building material made of plant fibers,

as wood, bonded together and compressed into rigid sheets.”

Webster’s II New Riverside University Dictionary 474 (1988).

Court No. 03-00313 Page 29

limited by [their] terms,” id., “[a]n improvement in the 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 (Fed. Cir. 1992). Because Chapter 44

includes not only input materials, like fiberboard, but products

made from those input materials, some tension between various

headings is unavoidable. Cf. heading 4411, HTSUS (covering

“Fiberboard of wood or other ligneous materials”) with Note 3 to

Chapter 44 (“Headings 4414 to 4421 apply to articles of the

respective descriptions of particle board or similar board,

fiberboard, laminated wood or densified wood as they apply to such

articles of wood.”). Consequently, to resolve these tensions, the

Court has long noted that “although an eo nomine provision covers

all forms and varieties of the named commodity, there is a point

where the addition of parts and functions transforms the object into

something else.” Am. Hardboard, 12 CIT at 716; see also Humphreys,

973 F.2d at 1556. The line demarcating heading 4411's, HTSUS,

boundary is specified in Chapter Note 4. See GRI 1, HTSUS

(“[C]lassification shall be determined according to the terms of the

headings and any relative section or chapter notes and, provided

such headings or notes do not otherwise require . . . .”); cf. Motor

Wheel Corp. v. United States, 19 CIT 385, 388 (1995) (using a

chapter note to demarcate the outer boundary of an eo nomine

Court No. 03-00313 Page 30

provision).29

i. Meaning of Note 4:

Note 4 to Chapter 44 states that “[p]roducts of heading 4410,

4411 or 4412 may be worked to form the shapes provided for in

respect of the articles of heading 4409, curved, corrugated,

perforated, cut or formed to shapes other than square or rectangular

29

Faus cites Arthur J. Humphreys, Inc. v. United States, 973

F.2d 1554 (Fed. Cir. 1992), Am. Plywood Ass’n v. United States,

17 CIT 613 (1993), and Am. Hardboard, 12 CIT 714 (1988) for the

proposition that “an input material can no longer be classified

under the tariff provision describing that input when it has been

advanced beyond the basic, fungible material to become a new and

different article of commerce.” Pl.’s Reply at 9-10 nn. 9, 11-

13. However, reliance on this line of cases is misplaced. The

Court in Am. Hardboard, 12 CIT at 717, found “the legislative

history limits the eo nomine provision for hardboard to a basic,

fungible material.” (emphasis added). Cf. Arthur J. Humphreys,

973 F.2d at 1561 (“That holding [in Am. Hardboard] is consistent

with the Tariff Classification Study . . . .”) (emphasis in

original); Am. Plywood, 17 CIT at 617 (relying on the Am.

Hardboard test). As the Court in Am. Hardboard made clear, “an eo

nomine provision includes all forms of the named article unless

limited by its terms, or contrary to legislative intent, judicial

decisions, long standing administrative practice, or demonstrated

commercial designation.” 12 CIT at 715 (emphasis added). By

setting a boundary condition for the eo nomine provision in

question based on legislative history, the Am. Hardboard court

was not operating on a common law principle of statutory

construction in setting that boundary. But cf. Permagrain Prods.,

Inc. v. United States, 9 CIT 426, 435, 623 F. Supp. 1246, 1253

(1985) (relying on judicial authority to define this dividing

line). Although the basic and fungible transformation test may

be appropriate where the HTSUS and the legislative history so

directs or is ambiguous, where, as here, the text directs a

specific test – i.e., the “character of articles of other

headings” test – the Court is bound by that test.

Court No. 03-00313 Page 31

or submitted to any other operation provided it does not give them

the character of articles of other headings.” When the relevant

portions of 4409 are incorporated into this language, Note 4 to

Chapter 44 specifies that products included in heading 4411 “may be

[tongued, grooved, rebated, chamfered, V-jointed, beaded, molded,

rounded,] 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.” Note 4 to Chapter 44, HTSUS (emphasis added).

The parties have submitted two competing interpretations of

this Note. The Government asserts that subjecting the merchandise

to a specifically enumerated operation, regardless of whether that

operation may give the merchandise the “character of articles in

other headings,” does not remove the merchandise from classification

under heading 4411, HTSUS. Def.’s Mem. at 11. Rather, only if the

merchandise is subjected to “any other operation” should the Court

make a determination as to whether that operation gives the

merchandise the “character of articles in other headings.” Id.

Faus counters that the proper reading of Note 4 is that the

merchandise may be submitted to any of the enumerated operations,

or any other operation, so long as none of the enumerated, or other

operations, give the merchandise the character of articles in other

headings. Pl.’s Mem. at 24-27, Pl.’s Reply at 5-8. Faus argues

that tonguing and grooving fiberboard allows panels to be joined

Court No. 03-00313 Page 32

together, thereby giving them the character of builders’ joinery.

Id.

These two plausible readings are created by the ambiguous

antecedent of the word “it” in Note 4. “It” may refer to just the

clause “submitted to any other operation,” or alternatively to the

entire list. The parties have proposed two schematics of the

sentence:

GOVERNMENT’S PROPOSED FAUS’ PROPOSED SCHEMATIC31

SCHEMATIC30

[(1)] Worked to form the shapes [1] Worked to form the shapes

provided for in respect of the provided for in respect of the

articles of heading 4409, articles of heading 4409,

curved, corrugated, perforated, [2] curved,

cut or formed to shapes other [3] corrugated,

than square or rectangular or [4] perforated,

[(2)] submitted to any other [5] cut or formed to shapes

operation provided it does not other than square or

give them the character of rectangular

articles of other headings. or

[6] submitted to any other

operation

provided it does not give them

the character of articles of

other headings.

Although both readings are possible, the Court finds the

Government’s position is supported by the plain language and the

legislative history of the provision.

The Government’s reading is that the “provided it does not give

them the character of articles of other headings” clause

30

Def.’s Mem. at 11.

31

Pl.’s Reply at 5.

Court No. 03-00313 Page 33

(hereinafter the “‘articles of other headings’ clause”) is a

limitation on the preceding catch-all provision, the “submitted to

any other operation” clause. Catch-all provisions are designed “to

save the legislature from spelling out in advance every contingency

in which the statute could apply.” 2A N. Singer, Statute &

Statutory Construction § 47:17 at 281-82 (6th ed. 2000). As with

any general provision, a catch-all provision may be overinclusive

unless somehow limited. To cure this defect, courts frequently

invoke the canon of statutory construction ejusdem generis to limit

its scope.32 However, when, as here, there is no apparent pattern

discernible from the enumerated operations to serve as a limiting

principle, clauses of limitation are necessary. Cf. Owen of

Georgia, Inc. v. Shelby County, 648 F.2d 1084, 1097 n.3 (6th Cir.

1986) (“Ejusdem generis cannot be applied in a vacuum.”) (Keith, J.

dissenting). Accordingly, it is reasonable that Congress intended

the “articles of other headings” clause to limit the scope of the

catch-all provision.33

32

Ejusdem generis is “[a] canon of construction [holding]

that when a general word or phrase follows a list of specifics,

the general word or phrase will be interpreted to include only

items of the same type as those listed.” Black’s Law Dictionary,

supra at 556.

33

This reading is also supported by the rules of grammar

which provide that:

Referential and qualifying words and phrases, where no

contrary intention appears, refer solely to the last

antecedent, which consists of the last word, phrase, or

clause that can be made an antecedent without impairing

Court No. 03-00313 Page 34

Under Faus’ interpretation, the enumerated operations are

incidental to the real inquiry: whether the products assume the

character of products of other headings. However, when the

“articles of other headings” clause is combined with the catch-all

provision, the five enumerated operations (or thirteen when the

operations of heading 4409 are included) are completely subsumed by

the last two clauses.34 Therefore, the list of enumerated

the meaning of the sentence.

Anhydrides & Chemicals, Inc. v. United States, 130 F.3d 1481,

1483 (Fed. Cir. 1997) (quoting C. Dallas Sands, 2A Sutherland

Statutory Construction, 4th ed., § 47.33); cf. Carondelet Canal &

Navigation Co. v. Louisiana, 233 U.S. 362, 382 (1914) (“The

natural and grammatical use of a relative pronoun is to put it in

close relation with its antecedent, its purpose being to connect

the antecedent with a descriptive phrase.”). Because “any other

operation” is the last sensible antecedent, the qualifying words

of the “characters of other headings” clause must modify only

“any other operation.” Faus has suggested, as a general matter,

this rule could lead to absurd results Pl.’s Resp. Ct.’s

Questions at 9. However, the Court does not see why an absurd

result would occur in this case by applying the rule.

34

The only possible reason for the enumeration, under Faus’

reading, would be to provide examples of “operations” out of an

abundance of caution. Cf. Ft. Stewart Schools v. FLRA, 495 U.S.

641, 646 (1990) (citing to the principle of ex abundanti

catuela). However, the listing of thirteen examples would be ex

abundanti catuela ad absurdum. Faus also asserts that the Court’s

reading would render the word “fiberboard” nugatory in Chapter

Note 3. See Pl.’s Resp. Ct.’s Questions at 7; see also Note 3 to

Chapter 44 (“Headings 4414 to 4421 apply to articles of the

respective descriptions of particle board or similar board,

fiberboard, laminated wood or densified wood as they apply to

such articles of wood.”). The Court finds Faus’ argument

unpersuasive for two reasons. First, the only way for Faus’

argument to be correct is if, under the Court’s reading of Note

4, no fiberboard product could be classified under heading 4418,

HTSUS. However, this seems unlikely, especially for products

like fiberboard doors or cellular wood panels. Second, Chapter

Court No. 03-00313 Page 35

operations becomes unnecessary under Faus’ reading.

In choosing between two competing interpretations, the Court

is mindful of the “‘cardinal principle of statutory construction’"

that "’a statute ought, upon the whole, to be so construed that, if

it can be prevented, no clause, sentence, or word shall be

superfluous, void, or insignificant.’" TRW Inc. v. Andrews, 534

U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174

(2001)). This is especially true here where the drafters went to

a great length to specifically enumerate thirteen separate

operations to which fiberboard could be subjected. It is unlikely

that the drafters would have gone to such great length only to have

the entire list subsumed under the catch-all provision.

Consequently, given that Faus’ interpretation leads to surplusage,

whereas the Government’s does not, the Government’s interpretation

should be preferred.35

Note 4 is tailored specifically to the problem at issue here,

whereas Chapter Note 3 is more general and does not necessarily

even implicate the interplay between headings 4411 and 4418,

HTSUS. Therefore, if the Court must chose between giving effect

to the words in only one Note, the Court should prefer to give

precedence to the words which speak directly to the issue at

hand, i.e., Note 4. Cf. Chickasaw Nation v. United States, 534

U.S. 84, 94-95 (2001).

35

The Government asserts that textual clues from Chapter 44

support its reading. Subheading 4411.29.20 covers fiberboard

that is “[t]ongued, grooved or rabbetted continuously along any

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

ceilings or other parts of buildings.” Def.’s Mem. at 14-15. The

Government argues that Faus’ interpretation would render this

subheading a nullity as all products under this subheading would

be subsumed by heading 4418, HTSUS, such that the subheading

Court No. 03-00313 Page 36

This reading is reinforced by looking at the French version of

Note 4.36 Like all drafting histories, recourse to the French

version cannot supplant “the common, ordinary meaning derived from

lexicographical sources.” Len-Ron Mfg. Co. v. United States, 334

F.3d 1304, 1312 (Fed. Cir. 2003). Nevertheless, when the grammar

of the English version is ambiguous, looking to the unambiguous

French version may be highly probative of the intent of the

drafters. Cf. Cardondelet Canal & Navigation Co. v. Louisiana, 233

would become surplusage. Id. Similarly, subheading 4410.32.00,

which covers particle board “surface-covered with melamine-

impregnated paper,” would likely become a meaningless provision

as well. However, these subheadings could be preserved in at

least three alternative ways: (1) the products are not builders’

joinery; (2) that the operations do not give the products the

character of articles of other headings; or (3) due to the

Government’s reading of “it” in Note 4. Nonetheless, the

Government is right in noting that at some point Faus’ theory

does break down. Faus claims that looking to subheadings, before

the proper heading is chosen, is precluded by Orlando Food Corp.

v. United States, 140 F.3d 1437, 1440 (Fed. Cir. 1998). See,

e.g., Pl.’s Resp. Ct’s Questions at 2 n.1. The mistake committed

by the trial court in Orlando Food was to classify goods only

according to subheadings, rather than headings, violating GRI 1

and 6. In contrast, here the Government only seeks to inform the

meaning of the headings using canons of construction such as

noscitur a sociis (known by its associates) and the canon seeking

to avoid absurd results, i.e., rendering subheadings nugatory.

Moreover, if it is assumed that Congress created subheadings in

which to classify products, then the subheadings must reflect

Congressional understanding of the terms of the headings.

36

The French provision is as follows: “Les produits des nºs

44.10, 44.11 ou 44.12 peuvent être travaillés de manière à

obtenir les profils admis pour les bois du nº 44.09, cintrés,

ondulés, perforés, découpés ou obtenus sous des formes autres que

carrée ou rectangulaire ou sournis à toute autre ouvraison, pour

autant que celle-ci ne leur confère pas le caractère d’articles

d’autres positions.”

Court No. 03-00313 Page 37

U.S. 362, 387 (1914) (looking to the French version of the statute

to clarify an ambiguous antecedent).37 As the Supreme Court

explained in Cardondelet Canal, 233 U.S. at 387, “in French, there

is more certain indication of the antecedent” because “[t]here is

no neuter gender in the French language, every noun is masculine or

feminine, and the pronoun which stands for it must agree with it.”

In the French version of Note 4, the “it” appears as “celle-ci”

which is both feminine and singular. As “sournis a toute autre

ouvraison” (or any other operation) is feminine and singular, any

other operation appears to be the antecedent to the word “it.”38

ii. Faus’s Objections:

Faus directs the Court to the Explanatory Notes, which it

claims clarifies the ambiguity. Pl.’s Reply at 6. The Explanatory

37

As discussed above, because the Harmonized Schedule was

intended as a uniform system used by many nations, Customs Co-

Operation Council, supra at 22, it was drafted in English and

French, both versions “being equally authentic,” Convention,

Article 20. Accordingly, the French and English were intended to

be identical.

38

Faus cites the Declaration of Marc Wilmet, an Emeritus

Professor at the Free University of Brussels (Faculty of

“Philsosphie et Lettres”) suggesting that the word “manière”

(manner) could also, and in his view more likely, be the

antecedent to “celle-ci.” Decl. Marc Wilmet, Ex. B to Pl.’s Resp.

Ct.’s Questions. However, “manière” (manner) does not appear to

be a key word in the French version, which is especially

evidenced by the fact that the word “manière” does not have an

equivalent in the English version. In other words, according to

Professor Wilmet’s translation, a non-existent word would be the

antecedent in English.

Court No. 03-00313 Page 38

Note to 44.11 states:

The products of this heading remain classified herein

whether or not they have been worked to form the shapes

provided for in respect of the goods of heading 44.09,

curved, corrugated, perforated, cut or formed to shapes

other than square or rectangular and whether or not they

have been surface or edge worked, or coated or covered

(e.g., with textile fabric, plastics, paint, paper or

metal) or submitted to any other operation, provided

these operations do not thereby give such products the

essential character of articles of other headings.

Explanatory Note 44.11 (emphasis added to “these operations”). Faus

argues that the Explanatory Notes’ choice of the word “these,”

clarifies the word “it” in the Chapter Note. Pl.’s Reply at 6. By

using the word “these,” Faus contends, the “articles of other

headings clause” must refer to multiple operations.

The text of the Explanatory Note has four major variances from

Note 4: (1) the Explanatory Note adds “and whether or not they have

been surface or edge worked, or coated or covered (e.g., with

textile fabric, plastics, paint, paper or metal)”; (2) the inclusion

of a comma after “other operation” and before “provided”; (3) the

change from “it” to “these”; and (4) the addition of the word

“essential” before the word “character.” Unfortunately, the “these”

is plagued by as many ambiguities as the “it.” “These operations”

has three possible antecedents; “these” may refer (a) to each of the

enumerated operations and catch-all provision; (b) to the surface

and edge worked, covered, coated and the catch-all provision;39,40 or

39

As of 1995, the Explanatory Note and Chapter Note employed

the same language. Then in 1995, the language of the Explanatory

Court No. 03-00313 Page 39

(c) to just the catch-all provision. All three readings would

Note changed after an inquiry of the Lebanese Delegation to the

WCO as to certain particle board strips, grooved on their edges

and covered with laminated plastic which were to be used for self

assembly into drawers. See Harmonized System Committee, World

Customs Organization, Doc. 39.581 E (Sept. 28, 1995); Harmonized

System Committee, World Customs Organization, Doc. 39.552 E

(Sept. 20, 1995). Upon the request of the United States, the

Secretariat was asked to prepare “suitable amendments to the

Explanatory Notes to heading 44.10 for consideration by the

Working Party to clarify the extent to which products could be

covered with plastics, etc., and still remain classifiable in

that heading.” Doc. 39.552 E at para. 5. Because Chapter Note 4

covers both 4410 and 4411, HTSUS, the Explanatory Notes for both

were amended. Therefore, as the amendment was intended to cover

these contingencies, reading (b) is probably best supported by

the legislative history. Consequently, the WCO decided the

particle board drawers should remain in 4410, HTSUS. Doc. 39.581

E at para. 4.

40

OTHER POSSIBLE READING FAUS’ PROPOSED SCHEMATIC

[1] Worked to form the shapes [1] Worked to form the shapes

provided for in respect of the provided for in respect of the

articles of heading 4409, articles of heading 4409,

curved, corrugated, [2] curved,

perforated, cut or formed to [3] corrugated,

shapes other than square or [4] perforated,

rectangular and [5] cut or formed to shapes

[2] whether or not they have other than square or

been surface or edge worked, rectangular and whether or not

or coated or covered (e.g., they have been surface or edge

with textile fabric, plastics, worked, or coated or covered

paint, paper or metal) or (e.g., with textile fabric,

submitted to any other plastics, paint, paper or

operation, provided these metal)

operations do not thereby give or

such products the essential [6] submitted to any other

character of articles of other operation,

headings.

provided these operations do

not thereby give such products

the essential character of

articles of other headings.

Court No. 03-00313 Page 40

justify the substitution of the word “these” for “it.” Because the

Explanatory Notes “do not constitute controlling legislative history

but nonetheless are intended to clarify the scope of [the] HTSUS []

and to offer guidance” in its interpretation, Mita Copystar America

v. United States, 21 F.3d 1079, 1082 (1994), their use is defeated

when the Explanatory Notes are as, or more, ambiguous than the text.

Consequently, the Explanatory Notes cannot assist the Court’s

inquiry. Cf. Stadelman, 242 F.3d at 1048 (“To determine the meaning

of a tariff classification term, only the term used in the tariff

classification may be analyzed.”).

Faus also points to Motor Wheel Corp. v. United States, 19 CIT

385 (1995) to support its position. Pl.’s Mem. at 24. In Motor

Wheel, the Court interpreted Chapter Note 72(1)(k) which provides:

Flat-rolled products of a shape other than rectangular or

square, of any size, are to be classified as products of

a width of 600 mm or more, provided that they do not

assume the character of articles or products of their

headings.

Motor Wheel, 19 CIT at 388 (emphasis in orginal). Note 72(1)(k) has

an exclusionary nature – it excludes products from an eo nomine

provision once they assume certain characteristics. Faus is correct

in noting that Note 72(1)(k) is similar to Note 44(4) in that it

establishes the boundary for an eo nomine provision. However, it

does not necessarily follow that the two notes set that boundary in

the same way. The HTSUS uses many different types of provisions to

help locate goods in a particular heading. Besides an exclusionary

Court No. 03-00313 Page 41

form, the HTSUS also employs chapter notes with a more inclusionary

character. For example, Note 6 to Chapter 85 states that

“[r]ecords, tapes and other media of heading 8523 or 8524 remain

classified in those headings, whether or not they entered with the

apparatus for which they are intended.” Chapter 85, Note 6, HTSUS.

The language, “remain classified,” suggests that goods remain in a

particular heading even if they may assume the character, i.e.,

entering with apparatus, of other headings. The question in this

case is which of the two forms did the drafters employ in Note 4?

The drafters may have intended Chapter Notes 44(4) and 72(1)(k) to

accomplish the same ends, or Congress may have intended the catch-

all provision to follow the 72(1)(k) form but the enumerated

operations to follow the 86(6) form. Motor Wheel does not assist

the Court in resolving this question, and the Court’s construction

of Note 4 stands in opposition to the 72(1)(k) form. Therefore,

reliance on Motor Wheel is misplaced.

iii. Applying Note 4:

Given that the Court deems that “the character of articles of

other headings” test only applies to the catch-all provision, only

operations not listed within Chapter Note 4, and which give products

the character of articles of other headings, exclude a product from

heading 4411, HTSUS. Therefore, tonguing and grooving fiberboard,

per se, does not render the merchandise unclassifiable under heading

Court No. 03-00313 Page 42

4411, HTSUS.

Faus asserts that even under this restricted reading its

merchandise is still not classifiable under heading 4411, HTSUS.

Pl.’s Reply at 7 n.7. Faus claims that a “top layer or wear layer,

consisting of a combination of corundum and melamine, must be added

to the Faus products to make them fit for their intended use”;

therefore, its merchandise has been subjected to an “other

operation.” Id. Because Faus submits that its merchandise has been

subjected to an “other operation,” Note 4 next requires that this

operation give the merchandise the “the character of articles of

other headings.” Chapter 44, Note 4, HTSUS.

The word “character” admits of many degrees. An operation may

give the product “any character,” i.e., an operation that transforms

a product into fiberboard which thereby gives the product the

character of articles in heading 4418, HTSUS, by virtue of Note 3

to Chapter 44; or “a necessary character,” i.e., an operation that

gives a product one of the required attributes in another heading;

or the “essential character,” i.e., an operation which gives a

character which differentiates articles of other headings. In

deciding which of these alternatives to choose, the Explanatory

Notes offer guidance. Specifically, the Explanatory Notes direct

that fiberboard articles may remain classifiable under heading 4411,

HTSUS, “whether or not they have been surface or edge worked, or

coated or covered (e.g., with textile fabric, plastics, paint, paper

Court No. 03-00313 Page 43

or metal) or submitted to any other operation, provided these

operations do not thereby give such products the essential character

of articles of other headings.” EN 44.11(emphasis added).

Significantly, the Explanatory Notes for heading 4411, HTSUS,

specify that “[i]mpregnating or other agents may also be added

during or after 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.” See EN 44.11; see also Chapter 44,

Additional U.S. Note 1(c), HTSUS (“The term ‘surface covered,’as

applied to articles of headings 4411 and 4412, means that one or

more exterior surfaces of a product have been treated with creosote

or other wood preservatives, or with fillers, sealers, waxes, oils,

stains, varnishes, paints or enamels, or have been overlaid with

paper, fabric, plastics, base metal, or other material.”).41 In

other words, products of heading 4411, HTSUS, may be surface

covered. Because surface covering does not, by itself, give a

fiberboard product a character differentiating it from articles

under heading 4411, HTSUS, this operation cannot give it “the

essential character of articles of other heading.” Cf. Doc. 39.552

41

During oral argument, Faus attempted to differentiate

lamination from other types of surface covering because

lamination was a sophisticated process. Although the Court does

not deny that the lamination process used by Faus may be

sophisticated, the fact that it is sophisticated does not

transform the operation into anything more than covering a

fiberboard product with paper, i.e., a color photograph of wood

strips, see Flores Decl. at para. 5, and then with a melamine (or

plastic) layer, id.

Court No. 03-00313 Page 44

E at para. 5 (discussed supra at note 40).

C. Choosing the Proper Heading

Because the merchandise appears to be prima facie classifiable

under two headings, the Court must now decide which is the preferred

heading. Under GRI 1, HTSUS, goods should first be classified

according to the terms of the headings and relevant chapter notes.

Park B. Smith, Ltd. v. United States, 347 F.3d 922, 928 (Fed. Cir.

2003) (“Rule 3(a) is applied after the prior rules, and does not

override any section or chapter notes.”). However, if this is

insufficient, GRI 3, HTSUS, provides an additional set of rules for

choosing between possible headings. Orlando Food, 140 F.3d at 1441.

i. GRI 1 Analysis:42

Looking first to the relevant headings and chapter notes,

Chapter Note 4 is the only possible candidate for directing the

42

Faus has argued that Note 4 to Chapter 44 makes heading

4411, HTSUS, “mutually exclusive” with other provisions in the

HTSUS. Pl.’s Mem. at 24. However, for the reasons set forth in

this subsection, Faus’ reading is not entirely accurate as a

matter of law. This analysis further undermines the significance

Faus places on Note 4 as being dispositive of how products are

allocated among the headings in Chapter 44.

Faus has expressed concern that the Court’s reading of Note

4 to Chapter 44 may upset the classification of fiberboard

dashboards under heading 8708, HTSUS. Dashboards are not

described eo nomine under heading 8708, HTSUS. Moreover, because

Note 4 does not require that products classifiable under heading

4411, HTSUS, not be classifiable elsewhere, products may be

classified in other headings if GRI 3 so directs.

Court No. 03-00313 Page 45

classification of products between the relevant headings. As

discussed above, Chapter Note 4 instructs that the “[p]roducts of

heading 4410, 4411 or 4412 may be worked . . . .”43 (emphasis

added). Courts have long noted that the language of a heading or

chapter note may direct that one tariff provision takes precedence

over any conflicting tariff provisions under the doctrine of

invasive language. See, e.g., American SF Products, Inc. v. United

States, 61 Cust. Ct. 257, 262 (1968) (headnotes containing an

invading character eliminate relative specificity from

consideration); Swiss Manufactures Ass’n., Inc. v. United States,

39 Cust. Ct. 227, 237 (1957) (one provision may take precedence over

every other provision of the tariff act). However, as the court in

Swiss Manufactures noted, the doctrine of invasive language “has

never been applied except in cases where the language of the

invading provision ‘is so sweeping, clear, and definite as to the

goods subjected to its operation that there is no room for

interpretation as to the goods which Congress meant to include.’”

Swiss Manufactures, 39 Cust. Ct. at 237 (quoting Kayser & Co. (Inc.)

v. United States, 13 Ct. Cust. App. 474, 479 (1925)). The court

went on to provide examples of invasive language such as: “‘whether

43

Chapter 44 Note 4, HTSUS. The Explanatory Note for 44.11

uses slightly different language: “The Products of this heading

remain classified herein whether or not” they have been submitted

to certain operations. Because the language of the Chapter Note

and Explanatory Note covers the same material, but in a different

manner, the language of the Chapter Note must govern.

Court No. 03-00313 Page 46

or not more specifically provided for elsewhere, or ‘by whatever

name known,’ and to ‘wherever use applied, and whether or not named,

described, or provided for elsewhere in this Act.’” Id. (citations

omitted). When viewed under this framework, given the equivocal

connotation of the word “may,” the language “may be worked . . .”

is insufficient to constitute a clear statement of Congressional

intent to have 4411, HTSUS, take precedence over competing headings.

Cf. Pillowtex, 21 CIT at 1157, 983 F. Supp. at 191.

ii. GRI 3 Analysis:

Because GRI 1 is not dispositive, the Court must look to GRI

3, HTSUS, to provide additional guidance. According to GRI 3(a),

“[t]he heading which provides the most specific description shall

be preferred to headings providing a more general description.”

Under this so-called rule of relative specificity, a court looks to

“the provision with requirements that are more difficult to satisfy

and that describe the article with the greatest degree of accuracy

and certainty.” Orlando Food Corp. v. United States, 140 F.3d 1437,

1441 (Fed. Cir. 1998).44

44

In conducting this inquiry the Court holds that Faus’

flooring panels are not “assembled parquet panels.” The Oxford

English Dictionary defines “assemble” as “[t]o put together (the

separately manufactured parts of a composite machine or

mechanical appliance.)” I Oxford English Dictionary, supra at

705; see also Webster’s II New Riverside University Dictionary

131 (1988) (“Assemble” means “[t]o fit or join together the parts

of.”). The flooring panels, as imported, are not made from

parquet strips which have been “put together.” Rather, the

Court No. 03-00313 Page 47

As discussed above, heading 4418, HTSUS is quite broad,

covering everything from assembled parquet panels, to structural

beams, to shingles and shakes. Although it is not a basket

provision, it covers a myriad of products with only one commonality:

the products are used in the construction of buildings. Moreover,

it includes products that can be joined by a wide variety joints and

other means. Additionally, products under heading 4418, HTSUS, may

be made from “particle board or similar board, fiberboard, laminated

wood or densified wood.” Note 3 to Chapter 44.

In contrast, products falling under heading 4411, HTSUS, are

limited to fiberboard, i.e., boards and panels, by Chapter Note 4.

panels only have this appearance due to a color photograph of

wood flooring which is imposed upon a piece of fiberboard. This

reading is exemplified by two aspects of the text. First, the

definition of builders’ joinery requires either that the products

be assembled or have joints for assembly. Because parquet panels

are assembled, they fall under heading 4418, HTSUS, regardless of

their type of joint. For example, EN 44.18 specifically notes

that assembled parquet panels may be tongue-and-grooved,

excepting them from heading 4409, HTSUS, which specifically

includes wood products which are tongue-and-grooved. Second, the

term “assembled parquet panels” is specifically contrasted with

the term “unassembled parquet panels” in heading 4409, HTSUS.

This distinction reveals that a degree of woodworking, i.e., that

which is required to assemble parquet strips, is mandated to

render a product an assembled parquet panel. Moreover, Faus’

reliance on GRI 2(a) is misplaced. GRI 2(a) states that “[a]ny

reference in a heading to an article shall be taken to . . .

include a reference to that article complete or finished, . . .

entered unassembled or disassembled.” However, GRI 1 limits the

scope of GRI 2 to only those situations where “such headings or

notes do not otherwise require.” Here, the term “assembled” in

heading 4418, HTSUS, especially as contrasted by the term

“unassembled” in heading 4409, HTSUS, clearly indicates that

heading 4418, HTSUS, only covers assembled parquet panels.

Court No. 03-00313 Page 48

Cf. EN 44.11 (“Impregnating or other agents may also be added during

or after manufacture of the board . . . .”) (emphasis added).

Because of Chapter Note 4, fiberboard products may only be given

certain types of joints without rendering them classifiable

elsewhere. For example, if fiberboard is actually joined with other

pieces of fiberboard or wood, this “joinery” would be subjected to

an “other operation,” i.e., being joined with glue or nails, etc.,

which most likely would give the fiberboard product the character

of articles of other headings. What this means is that there are

few transformations to which fiberboard may be subjected and remain

classifiable under heading 4411, HTSUS. Accordingly, heading 4411,

HTSUS, is limited in the types of products it includes to unjoined

fiberboard boards and panels. This description much more closely

resembles the flooring panels in question than “builders’ joinery.”

Cf. Russ Berrie & Co., Inc. v. United States, 381 F.3d 1334, 1337-38

(Fed. Cir. 2004)

Faus argues, inter alia, that heading 4418, HTSUS, is more

specific because it is more difficult to satisfy, i.e., a product

must meet the three-prong test for builders’ joinery. Pl.’s Resp.

Ct.’s Questions at 12. Faus attempts to read the court’s language

in Orlando Food, i.e., “the provision with requirements that are

more difficult to satisfy and that describe the article with the

greatest degree of accuracy and certainty,” as proposing that the

more difficult provision to satisfy is necessarily the more

Court No. 03-00313 Page 49

specific. Pl.’s Resp. Ct.’s Questions at 12-13.45 However, the

Court does not read the Orlando Food test as supporting this

proposition. First, difficulty is not measured by the number of

requirements in the definition of the heading, but the relative

particularity thereof.46 Cf. Mitsui Petrochemicals (Am.), Ltd. v

45

At oral argument, Faus argued that the relative specificity

analysis was predicated on the “more difficult to satisfy” test.

46

In relevant part, GRI 3 specifies that “[t]he heading

which provides the most specific description shall be preferred

to headings providing a more general description.” The “relative

specificity analysis,” as construed by U.S. Courts, is an

outgrowth of General Headnote 10(c) of the TSUS, which in turn

was a codification of a “judicial aid to construction” developed

by U.S. Courts in the latter half of the nineteenth century to

prefer the most specific heading in classifying goods. See Arthur

v. Stephani, 96 U.S. 125, 126-27 (1877), Homer v. The Collector,

68 U.S. 486, 490 (1863); see also Mitsui Petrochemicals, 21 CIT

at 886-87 (providing a good history of the relative specificity

analysis). This rule was described most clearly in Fink v.

United States, 170 U.S. 584, 587 (1898) which stated: “The rule

[of relative specificity] is that [], if possible, [the preferred

heading] is to be determined by ascertaining whether one of the

two paragraphs is more definite in its application to the article

in question than is the other.”

Later, the “more difficult to satisfy” formulation

originated in United States v. Electrolux Corp., 46 CCPA 143

(1959). Relying on Fink, the court in Electrolux Corp. compared

the breadth of two competing provisions holding that a provision

was “more specific because it [was] less easily satisfied.”

Electrolux Corp., 46 CCPA at 148. This language was

characterized by the court in United States v. Simon Saw & Steel

Co., 51 CCPA 33, 40 (1964) as standing for the proposition that

“the more specific provision is the one having requirements which

are more difficult to satisfy” – the articulation of the rule of

relative specificity on which Faus relies. The Court in Simon

Saw & Steel did not discuss the principles of this test nor

announce that it was breaking new ground. Rather, the court

maintained that the “less specific” provision covered “cutting

tools of any description or any kind, and in fact lists six

different kinds of cutting tools in its first provision . . . The

common (dictionary) meaning of the named cutting tools includes a

Court No. 03-00313 Page 50

United States, 21 CIT 882, 888 (1997) (subheading 3811.29.20

embodies “a smaller number of compounds since it has requirements

that are ‘more difficult to satisfy’”), Dollar Trading Corp. v.

United States, 64 Cust. Ct. 153, 157-58 (1970) (“because a multitude

of hand-operated articles of varying types and designs can be

classified under the provisions for hand tools while only a few

types of articles . . . are capable of satisfying the requirements

of the brush provisions,” the latter described heading is more

difficult satisfy); cf. United States v. Siemens Am., Inc., 68 CCPA

62, 70 (1981). Although the heading with more requirements may in

some cases be the more specific, this proposition does not

necessarily hold true in all cases. For example, in this case as

contrasted with Orlando Food, the input provision, i.e., heading

4411, HTSUS, is limited by Note 4; to wit, Note 4 places a cap on

the products classifiable therein. Accordingly, this makes heading

4411, HTSUS, restrictive in the types of products it covers. It

is not an open-ended provision like the one deemed “less specific”

in Orlando Food. Moreover, the specific requirements of heading

4411, HTSUS, describe the flooring panels with greater accuracy than

great many different types.” Id. at 41. In contrast, the more

specific provision included “only one article [] capable of

qualifying as a circular saw.” Id.

Given this history, it is apparent that the “difficult” was

not meant to be a separate or distinct test from the “accuracy

and certainty” test; and there is no indication that the more

“difficult to satisfy” test was meant to trump concerns of

accuracy and certainty.

Court No. 03-00313 Page 51

heading 4418, HTSUS.

Second, by virtue of Note 4, there is more certainty that Faus’

flooring panels are classifiable under heading 4411, HTSUS. As

Chapter Note 4 specifies, articles of heading 4411, HTSUS, may be

tongue-and-grooved; this provides some certainty as to the

classification of tongue-and-grooved products therein.47 In

contrast, there is no certainty that tongue-and-grooved products

necessarily even fall under heading 4418, HTSUS. Faus’ reading of

the Orlando Food test would, in this case, place the “certainty” and

“difficulty” prongs of the test in tension.48

Third, Faus cites to the principle that a “use” provision

trumps an eo nomine provision under a relative specificity analysis.

47

If fiberboard products are given mortise and tenon or

dovetail joints, the fiberboard would be submitted to an “other

operation” rendering them classifiable under heading 4418, HTSUS

(or elsewhere if the circumstances so warranted). In contrast,

given the Court’s construction of Note 4, tongue-and-grooved

products may be classified under heading 4411, HTSUS.

Accordingly, this gives some certainty regarding the type of

joints products classifiable under 4411, HTSUS, may have.

48

Faus has admitted that headings covering input materials

may be more specific than builders’ joinery. For example, the

means by which Faus reconciles the placement of tongue-and-

grooved products under heading 4409, HTSUS, with its proposed

construction of Chapter 44, is to suggest that heading 4409,

HTSUS, is the more specific provision. Pl.’s Mem. at 19-20,

Pl.’s Reply at 4. By virtue of the Court’s construction of Note

4, heading 4409 and heading 4411 bear many similarities,

including the fact that their products may be tongue-and-grooved.

Therefore, there is no reason that a different result should

obtain. The Court further notes that this may be the purpose of

Chapter Note 4, i.e., to align the outer boundaries of headings

4410-4412, HTSUS, with heading 4409, HTSUS.

Court No. 03-00313 Page 52

Pl.’s Resp. Ct.’s Questions at 14-17.49 As the case law reveals,

this principle is only a “rule of thumb” and should only be employed

when the two tariff headings sit in equipoise. Carl-Zeiss, Inc. v.

United States, 195 F.3d 1375, 1380-81 (Fed. Cir. 1999), Simon Saw

& Steel Co., 51 CCPA at 40. Because the Court finds that heading

4411, HTSUS, is more specific, the two competing provisions do not

sit in equipoise.

Accordingly, the Court deems that heading 4411, HTSUS, is the

more specific heading and therefore the heading under which Faus’

merchandise is classified.

II. Choosing the Proper Subheading

Relying on the outcome in Witex, USA, Inc. v. United States,

slip op. 04-144 (CIT Nov. 15, 2004), a companion case dealing with

the classification of similar panels under heading 4411, HTSUS, the

parties did not independently brief under which subheading Faus’

merchandise would fall if the panels were classifiable under heading

4411, HTSUS. Because the Court in Witex held that neither party had

sufficiently established a commercial meaning for “tileboard” at the

summary judgment phase, the Court did not resolve the meaning of

“tileboard.” Accordingly, because the Parties here have

incorporated the arguments from Witex by reference, the inability

49

At oral argument, the Government disputed that heading

4418, HTSUS, was a use provision. The Court does not express an

opinion on this issue.

Court No. 03-00313 Page 53

of the Court in Witex to resolve issues on the summary judgment

applies to the record in this case. Therefore, for the reasons

stated in Witex, summary judgment is inappropriate.

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