Faus Group, Inc. v. United States, (2004)

Extract

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Faus Group, Inc. v. United States, (2004)

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FAUS GROUP, INC., Plaintiff,

v.

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

1Effective 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).

Before: Pogue, Judge

Court No. 03-00313

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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

2The 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.

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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

3Because 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.

44418.00 Builders' joinery and carpentry of wood, including cellular wood panels and

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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...

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