IKO Industries, Ltd. v. U.S., 96-1111

• Decision Date: 22 January 1997
• Docket Number: No. 96-1111,96-1111
• Citation: 105 F.3d 624
• Parties: IKO INDUSTRIES, LTD., Plaintiff-Appellee, v. The UNITED STATES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

Page 624

105 F.3d 624

18 ITRD 2221

IKO INDUSTRIES, LTD., Plaintiff-Appellee, v. The UNITED STATES, Defendant-Appellant.

No. 96-1111.

United States Court of Appeals Federal Circuit.

Jan. 22, 1997.

James Caffentzis, Fitch, King and Caffentzis, New York City, argued, for Plaintiff-Appellee.

John J. Mahon, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, New York City, argued, for Defendant-Appellant. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, Washington, DC, and Joseph I. Liebman, Attorney in Charge, International Trade Field Office, New York City. Of counsel on the brief was Edward N. Maurer, Office of Assistant Chief Counsel, International Trade Litigation, U.S. Customs Service, New York City.

Before ARCHER, Chief Judge, EDWARD S. SMITH, Senior Circuit Judge, and MICHEL, Circuit Judge.

Opinion for the court filed by Circuit Judge MICHEL. Dissenting opinion filed by Senior Circuit Judge SMITH.

MICHEL, Circuit Judge.

The United States ("the government") appeals the September 19, 1995 decision of the United States Court of International Trade, Slip op. 95-161, granting summary judgment to IKO Industries, Ltd. ("IKO") and holding that IKO had overcome the presumption of correctness attached to the United States Customs Service's ("Customs") classification of the subject merchandise under subheadings 6807.10.00 and 6807.90.00 of the Harmonized Tariff Schedule of the United States ("HTSUS") and had proven that the subject merchandise was properly classified under subheading 4811.10.00, HTSUS. Because the Explanatory Notes to Chapter 68 specifically exclude asphalted paper and because the subject merchandise, other than the Armour Lock shingles, is more specifically described by Heading 4811, HTSUS, than Heading 6807, HTSUS, we affirm-in-part. However, because IKO's Armour Lock shingles are not rectangular and therefore cannot fall within the description of Heading 4811, we vacate-in-part.

BACKGROUND

IKO imports two types of products: three varieties of paper-based, asphalt roll roofing and ten varieties of paper-based, asphalt shingles. With the exception of the Armour Lock shingle, the shingles are all rectangular. Both the roll roofing and the shingles are used as an exterior cover for roofs to protect the roofs against water damage and other environmental effects.

Customs classified the roll roofing as "Articles of asphalt or of similar material (for example, petroleum bitumen or coal tar pitch): In rolls ..." under 6807.10.00, HTSUS and the shingles as "Articles of asphalt or of similar material (for example, petroleum bitumen or coal tar pitch): Other ..." under 6807.90.00, HTSUS. On April 18, 1991, IKO filed a timely formal protest contending that the roll roofing and the shingles should be categorized as "Paper, paperboard, cellulose wadding and webs of cellulose fibers, coated, impregnated, covered, surface-colored, surface-decorated or printed, in rolls or sheets, other than goods of heading 4803, 4809, 4810, or 4818:[ ¹] Tarred, bituminized or asphalted paper and paperboard ..." under 4811.10.00, HTSUS. The protest was denied by Customs on May 1, 1991.

IKO timely filed suit in the Court of International Trade. The parties filed a joint stipulation of facts and requested that the action be submitted for decision on stipulation in lieu of trial. The Court of International Trade treated the motion as one for summary judgment. In reaching its decision, the Court of International Trade noted that, at first glance, the term "articles of asphalt" may appear to encompass the roll

                roofing and shingles, but that the products were more specifically described as "asphalted paper and paperboard," as the parties agreed that the products were "paper-based."   Noting that General Rule of Interpretation 3 provides that headings with the most specific description shall be preferred to headings providing a more general description, the trial court found that subheading 4811.10.00 more specifically described the merchandise.  The Court of International Trade further relied on General Rule of Interpretation 1, which provides that classification shall be determined according to the terms of the headings and any section or chapter notes, and on the fact that note 1(b) of Chapter 68 specifically excludes from Chapter 68 "[c]oated, impregnated or covered paper of heading 4810 or 4811 (for example, paper coated with mica powder or graphite, bituminized or asphalted paper)."
                

ANALYSIS

I.

We must first address the government's contention that Customs' classification of the roll roofing and shingles as "articles of asphalt" under Heading 6807 is entitled to a statutory presumption of correctness and an appropriate degree of deference. The government cites to Goodman Manufacturing, L.P. v. United States, 69 F.3d 505 (Fed.Cir.1995), in support of its argument. However, as expressly pointed out in Goodman and as the government admits, where, as here, there is no factual dispute between the parties, the presumption of correctness is not relevant. 69 F.3d at 508. In cases such as Goodman, the issue then becomes whether "Customs's decision is based on a permissible construction of the trade statutes." Id. (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984)). The government thus argues that "[t]he basis for Customs' classification under Heading 6807, HTSUS, is that when the amount of asphalt coating on a paper substrate is as great as it is on the imported roll roofing and shingles, the articles are properly characterized as articles of asphalt rather than as articles of asphalted paper which is an entirely rational interpretation of the statutory provisions in issue."

The government's reliance on Goodman is misplaced. Goodman did not involve a classification dispute but rather a dispute regarding the proper valuation of privileged steel transferred from a manufacturer's foreign trade subzone into the domestic market. As the Court of International Trade previously stated:

The Court also rejects defendant's argument that the Court should uphold Customs' classification because the agency based its classification on a reasonable interpretation of subheading 4010.91.15. Defendant's argument is meritless because it misconstrues the Court's role in Customs classification cases. In such cases, the Court conducts a trial de novo. Although Customs' decisions enjoy a presumption of correctness, the Court's duty in reviewing a classification determination "is to find the correct result...." Implicit in this function is the Court's responsibility to exercise its own judgment as to what is the proper classification of the merchandise under review.

Semperit Indus. Prods., Inc. v. United States, 855 F.Supp. 1292, 1299 (Ct. Int'l Trade 1994) (citations and footnotes omitted). We therefore review de novo the trial court's decision regarding the scope of the various headings at issue here, but review the factual question of whether the imported items are within the scope of the various headings under the clearly erroneous standard. Medline Indus., Inc. v. United States, 62 F.3d 1407, 1409 (Fed.Cir.1995); see also Trans-Border Customs Serv., Inc. v. United States, 76 F.3d 354, 357 (Fed.Cir.1996) ("The Court of International Trade's grant of summary judgment for the Government is based on its interpretation of the Harmonized Tariff Schedule of the United States.... This is a question of law which this court reviews anew.") (citation omitted); Totes, Inc. v. United States, 69 F.3d 495, 497-98 (Fed.Cir.1995) ("The meaning of a tariff classification term is also a question of law, which we review de novo."). As the parties have stipulated to the facts in this case and as the only dispute turns on whether the subject merchandise is paper coated with asphalt or an article of asphalt, the issue turns solely upon the proper legal interpretation of the relevant headings, as guided by the general rules of interpretation.

II.

Turning to the merits, we agree with the trial court that all of the subject merchandise, other than the Armour Lock shingles, is properly classified under Heading 4811. HTSUS General Rule of Interpretation 1 provides that classification shall be determined according to the terms of the headings and any relevant section or chapter notes. Heading 4811 refers specifically to paper that has been "coated, impregnated, [or] covered" and formed into rolls or sheets, whereas Heading 6807 refers generally to "[a]rticles of asphalt or of similar material." Here, the merchandise, which is undisputedly a paper-based product that has been coated and impregnated with asphalt, could conceivably fall under either heading, as admitted by the government.

Chapter Note 1(b) of Chapter 68, however, specifically excludes "[c]oated, impregnated or covered paper of heading No. 48.10 or 48.11 (for example, paper coated with mica powder or graphite, bituminized or asphalted paper)." The question then becomes whether the subject merchandise falls within the definition of asphalted paper. One dictionary defines the term "asphalt paper" as a "paper that is coated or impregnated with asphalt." McGraw-Hill Dictionary of Scientific and Technical Terms 110 (2d ed. 1978). As the parties stipulated that the subject merchandise is paper-based and coated and impregnated with asphalt, this note excludes the subject merchandise from the scope of Heading 6807. Additionally, the Explanatory Note to Heading 6807 ² states that the heading excludes "[p]aper merely coated, impregnated or covered with tar or similar material, intended for use as, for example, wrapping paper (heading 48.11)." While it is true that IKO's products are not intended for use as wrapping paper, the subject merchandise is paper that has been coated and impregnated with asphalt, a material similar to tar. Likewise, while it is...