Anval Nyby Powder AB v. US, Slip Op. 96-80. Court No. 95-02-00183.

CourtU.S. Court of International Trade
Writing for the CourtPOGUE
Citation927 F. Supp. 463
PartiesANVAL NYBY POWDER AB, Plaintiff, v. The UNITED STATES, Defendant.
Decision Date21 May 1996
Docket NumberSlip Op. 96-80. Court No. 95-02-00183.

927 F. Supp. 463

ANVAL NYBY POWDER AB, Plaintiff,
v.
The UNITED STATES, Defendant.

Slip Op. 96-80. Court No. 95-02-00183.

United States Court of International Trade.

May 21, 1996.


927 F. Supp. 464

Sonnenberg & Anderson, New York City (Philip Yale Simons, Jerry P. Wiskin, New York City, Michelle D. Mancias, Chicago, IL), for Plaintiff.

Frank W. Hunger, Assistant Attorney General, Washington, DC; Joseph I. Liebman, Attorney in Charge, International Trade Field Office; Amy Rubin, Civil Division, Dept. of Justice, Commercial Litigation Branch; Beth C. Brotman, New York City and Myron P. Barlow, Office of Assistant Chief Counsel, U.S. Customs Service, Miami, FL, of counsel, for Defendant.

OPINION

POGUE, Judge:

Plaintiff, Anval Nyby Powder AB, invokes this Court's jurisdiction under 28 U.S.C. § 1581(a) (1994).1 The action involves the proper classification of cobalt alloy powders within heading 8105 of the Harmonized Tariff Schedule of the United States ("HTSUS").2 Customs' classification is before this Court for de novo review pursuant to 28 U.S.C.

927 F. Supp. 465
§ 2640(a) (1994) on the summary judgment motions of the plaintiff and the defendant. Upon liquidation the United States Customs Service ("Customs") classified the cobalt alloy powders as "Unwrought cobalt: Alloys" under subheading 8105.10.30, HTSUS, and assessed a 5.5% ad valorem duty. Plaintiff claims that the cobalt alloy powders are properly classified duty free under subheading 8105.10.90, HTSUS, as "Other." Neither party disputes that the cobalt alloy powders are properly classified under subheading 8105.10. Both parties also agree that the merchandise is a powder3 and an alloy4 within the meaning of the HTSUS. Subheading 8105.10 covers cobalt mattes and other intermediate products of cobalt metallurgy; unwrought cobalt; waste and scrap; and powders. Subheading 8105.10 is further subdivided into subheadings 8105.10.30 and 8105.10.60 which are provisions for unwrought cobalt (alloys and other, respectively) and subheading 8105.10.90, a residual or basket provision which covers the balance of merchandise within the scope of the 8105.10 subheading. The issue before the court is whether the cobalt alloy powders should be classified under subheading 8105.10.30 as "Unwrought cobalt" or under subheading 8105.10.90 as "Other."

UNDISPUTED FACTS

The chemical composition of the cobalt alloy powders in issue varies depending on their use; in plaintiff's merchandise, the metallic elements normally alloyed with cobalt are chromium, tungsten, iron and nickel. Cobalt is the predominant base metal contained in the cobalt alloy powders in issue, with concentrations ranging between 31.2% and 62.6% by weight.

Plaintiff's cobalt alloy powders are produced by an inert gas atomization process. Predetermined amounts of cobalt metal and the alloying metals make a composition which is placed in an induction furnace and melted. After melting, samples are taken and the chemical composition of the melt is determined by x-ray spectroscopy and other means to ascertain whether it is of the desired composition. If the composition of the melt does not meet specifications, cobalt or other metals are added to the melt until the desired composition is achieved.

When the melt has the desired composition, the molten alloy is poured into a tundish which has holes in its base. The molten metal flows through the base and is passed through a nozzle which can withstand high temperatures. As the alloy composition passes through the nozzle, it encounters a stream of inert gas of either nitrogen or argon, which causes the metal to form liquid droplets. The droplets solidify into spherical forms as they fall inside a collection tank. The spherically-shaped powders collect at the bottom of the collection tank where they cool to room temperature, and are further bathed in the inert gas to prevent any chemical reaction with oxygen in the air.

Plaintiff's cobalt alloy powders are specially manufactured to produce a spherical shape with small sizes and uniform distribution. A screening table comprised of two screens of different mesh sizes is used. The two screens are parallel to each other and separated by several inches. For cobalt alloy powders, the top screen normally has a mesh size of 250 microns and the bottom screen has a mesh opening of 53 microns.5 Once collected from the furnace, the powder is placed on the top screen — powder particles greater than 250 microns remain on the screen and particles smaller than 250 microns fall onto the 53 micron screen. Normally, the particles greater than 250 microns and less than 53 microns are not sold commercially, but are used as a raw material in manufacturing other metal powders.

927 F. Supp. 466

The fraction which has particles between 53 and 250 microns is passed through the system again to further remove larger and smaller particles which were not separated on the initial pass. After the second pass, a sample of the particles which are retained by the 53 micron screen are then passed through a series of screens which satisfy the American Society of Testing Materials ("ASTM") E11 specification to produce the actual size and distribution which is placed on the test certificate.

When the imported merchandise is used in an intended application, the resulting product does not possess the dimensional features of the cobalt alloy powder. The imported merchandise is only used for two applications: plasma are welding6 and thermal spraying.7 (Tingskog Aff. ¶ 8 filed with Plaintiff's Reply to Defendant's Supplemental Brief Submitted Pursuant to the Court's March 22, 1996). In these applications, the powder must be melted for it to form as solid mass which conforms to the shape of the weld or the article being coated. (Id.) Neither the weld nor the coating is in a powder form. (Id.) The powders are often used in coating automotive and other valves.

STANDARD OF REVIEW

Rule 56 of this court permits summary judgment when "there is no genuine issue as to any material fact...." USCIT R. 56(d); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed.Cir. 1987); Glaverbel Société Anonyme v. Northlake Marketing & Supply, Inc., 45 F.3d 1550 (Fed.Cir.1995).

In considering whether material facts are in dispute, the evidence must be considered in a light most favorable to the nonmoving party, drawing all reasonable inferences in its favor, as well as all doubts over factual issues. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Anderson, 477 U.S. at 253, 106 S.Ct. at 2512; Mingus, 812 F.2d at 1390-91. Nevertheless, "when a motion for summary judgment is made and supported ... an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial." USCIT R. 56(f). Once it is clear there are no material facts in dispute, a case is proper for summary adjudication. This is such a case.

Customs' classification is before this court for de novo review pursuant to 28 U.S.C. § 2640(a) (1994). The court is to "make its determinations upon the basis of the record made before the court." Id. The court's review may go beyond the issues considered in Custom's administrative determination. Specifically, the court may act on grounds which have not been considered by the agency below. 28 U.S.C. § 2638 (1994). In addition, the legislative mandate specifically directs the court to determine the correct classification for the merchandise involved. 28 U.S.C. § 2643(b)

927 F. Supp. 467
(1994). To establish a classification for the goods at issue, the court must consider "whether the government's classification is correct, both independently and in comparison with the importer's alternative." Jarvis Clark Co. v. United States, 733 F.2d 873, 878, reh'g denied, 739 F.2d 628 (1984). These statutory provisions require the court to decide the correct classification of cobalt alloy powders by determining the proper meaning of the applicable tariff subheadings

"The ultimate issue as to whether particular imported merchandise has been classified under an appropriate tariff provision ... entails a two step process: (1) ascertaining the proper meaning of specific terms in the tariff provision; and (2) determining whether the merchandise at issue comes within the description of such terms as properly construed." Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1391 (1994). The first step is a question of law and the second step is a question of fact. E.M. Chem. v. United States, 920 F.2d 910, 912 (1990).8

DISCUSSION

The principal issue in this case concerns the interpretation of subsection 8105.10 of the HTSUS. In addition, the defendant has placed in issue the standard of review the court should apply in resolving classification cases: specifically, whether Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), applies to routine classification cases involving disputed interpretations of the HTSUS.

I

Chevron sets forth a two-step analysis for court review of agency interpretations of statutes: Using the traditional tools of statutory construction, the court ascertains whether congressional intent on the disputed issue is clear, and, if clear, the court applies the statute in the manner Congress intended, regardless of the agency's position.9 If the statute is ambiguous, the court, rather than interpreting the statute anew and rendering its own interpretation, must defer to an administrative agency's "permissible construction of the statute."10

The United States Court of International Trade (CIT) has sparingly cited Chevron's two-step analysis in...

To continue reading

Request your trial
6 practice notes
  • Amity Leather Co. v. US, Slip Op. 96-140. Court No. 95-01-00036.
    • United States
    • U.S. Court of International Trade
    • August 20, 1996
    ...Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). See Anval Nyby Powder AB v. United States, 927 F.Supp. 463, 467-469 (1996), appeal docketed, No. 96-1438, 675 So.2d 945 (Fed.Cir. July 5, 7 Steven M. Hurwitz Aff. ¶¶ 7 filed as Exhibit 3 in Defendan......
  • Universal Electronics Inc. v. U.S., No. 96-1345
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • April 24, 1997
    ...L.Ed.2d 694 (1984). IKO Indus., Ltd. v. United States, 105 F.3d 624, 626 (Fed.Cir.1997); see also Anval Nyby Powder AB v. United States, 927 F.Supp. 463, 468-69 (Ct. Int'l Trade 6 For example, the court explained that a control panel located on the front of a television would fall within th......
  • Russ Berrie & Co., Inc. v. U.S., SLIP OP. 03-122. Court No. 00-00018.
    • United States
    • U.S. Court of International Trade
    • September 17, 2003
    ...independently and in comparison with the importers' proposed alternative." Anval Nyby Powder AB v. United States, 20 CIT 608, 611, 927 F.Supp. 463, 467 (1996) (quoting Jarvis Clark Co. v. United States, 733 F.2d 873, 878, reh'g denied, 739 F.2d 628 B. Judicial deference to Customs' cla......
  • Sharp Microelectronics Technology, Inc. v. US, Slip Op. 96-104. Court No. 93-09-00536.
    • United States
    • U.S. Court of International Trade
    • July 1, 1996
    ...U.S.C. § 2639 is not relevant when there is no factual dispute between the parties. Anval Nyby Powder AB v. United States, 20 CIT ___, 927 F.Supp. 463, 468-69 (1996) (citing Goodman Mfg., L.P. v. United States, 69 F.3d 505, 508 (Fed.Cir.1995)). Therefore, Defendant is not entitled to a pres......
  • Request a trial to view additional results
6 cases
  • Amity Leather Co. v. US, Slip Op. 96-140. Court No. 95-01-00036.
    • United States
    • U.S. Court of International Trade
    • August 20, 1996
    ...Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). See Anval Nyby Powder AB v. United States, 927 F.Supp. 463, 467-469 (1996), appeal docketed, No. 96-1438, 675 So.2d 945 (Fed.Cir. July 5, 7 Steven M. Hurwitz Aff. ¶¶ 7 filed as Exhibit 3 in Defendan......
  • Universal Electronics Inc. v. U.S., 96-1345
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • April 24, 1997
    ...L.Ed.2d 694 (1984). IKO Indus., Ltd. v. United States, 105 F.3d 624, 626 (Fed.Cir.1997); see also Anval Nyby Powder AB v. United States, 927 F.Supp. 463, 468-69 (Ct. Int'l Trade 6 For example, the court explained that a control panel located on the front of a television would fall within th......
  • Russ Berrie & Co., Inc. v. U.S., SLIP OP. 03-122. Court No. 00-00018.
    • United States
    • U.S. Court of International Trade
    • September 17, 2003
    ..."both independently and in comparison with the importers' proposed alternative." Anval Nyby Powder AB v. United States, 20 CIT 608, 611, 927 F.Supp. 463, 467 (1996) (quoting Jarvis Clark Co. v. United States, 733 F.2d 873, 878, reh'g denied, 739 F.2d 628 B. Judicial deference to Customs' cl......
  • Sharp Microelectronics Technology, Inc. v. US, Slip Op. 96-104. Court No. 93-09-00536.
    • United States
    • U.S. Court of International Trade
    • July 1, 1996
    ...U.S.C. § 2639 is not relevant when there is no factual dispute between the parties. Anval Nyby Powder AB v. United States, 20 CIT ___, 927 F.Supp. 463, 468-69 (1996) (citing Goodman Mfg., L.P. v. United States, 69 F.3d 505, 508 (Fed.Cir.1995)). Therefore, Defendant is not entitled to a pres......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT