Intercontinental Marbel Corp. v. U.S.

• Decision Date: 30 April 2003
• Docket Number: Court No. 98-02961.,SLIP OP. 03-47.
• Citation: 264 F.Supp.2d 1306
• Parties: INTERCONTINENTAL MARBLE CORPORATION, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

264 F.Supp.2d 1306

INTERCONTINENTAL MARBLE CORPORATION, Plaintiff, v. UNITED STATES, Defendant.

SLIP OP. 03-47.

Court No. 98-02961.

United States Court of International Trade.

April 30, 2003.

COPYRIGHT MATERIAL OMITTED

Miller and Chevalier Chartered, Washington, DC (Richard H. Abbey and Joel W. Rogers), for Plaintiff Intercontinental Marble Corporation.

Robert D. McCallum, Jr., Assistant Attorney General, Civil Division, United States Department of Justice; John J. Mahon, Acting Attorney in Charge, International Trade Field Office (Harry A. Valetk); Chi S. Choi, Office of Assistant Chief Counsel, International Trade Litigation, of counsel.

OPINION AND ORDER

EATON, Judge.

Before the court are cross-motions for summary judgment pursuant to USCIT R. 56. By its motion Plaintiff challenges the United States Bureau of Customs and Border Protection's ("Customs")¹ classification of certain entries of merchandise as "other calcareous stone" under subheading 6802.92.00 of the Harmonized Tariff Schedule of the United States ("HTSUS") (1998). Plaintiff argues that the subject merchandise is properly classifiable under HTSUS subheading 6802.91.05 as "Worked monumental or building stone ... Other: Marble, travertine and alabaster: Marble: Slabs." By its cross-motion the United States ("Government"), on behalf of Customs, maintains that the subject merchandise is properly classifiable under HTSUS subheading 6802.92.00 and asks the court to deny Plaintiffs motion and dismiss this action.² The court has jurisdiction pursuant to 28 U.S.C. § 1581(a) (2000). Where jurisdiction is predicated on 28 U.S.C. § 1581(a), Customs's classification is subject to de novo review. See 28 U.S.C. § 2640; E.T. Horn Co. v. United States, 27 CIT ____, ____, 2003 WL 649080, *2 (Feb. 27, 2003) (quoting Clarendon Mktg., Inc. v. United States, 144 F.3d 1464, 1466 (Fed.Cir. 1998)).³

This court may resolve a classification issue by means of summary judgment. See Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1365 (Fed.Cir.1998). Summary judgment is appropriate where "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...." USCIT R. 56(c). The court employs a two-step process when analyzing a classification issue: "first, construe the relevant classification headings; and second, determine under which of the properly construed tariff terms the merchandise at issue falls." Bausch & Lomb, 148 F.3d at 1365 (citing Universal Elecs., 112 F.3d at 491). The first step in this process is a question of law; the second step is one of fact. Id. Summary judgment of a classification issue "is appropriate when there is no genuine dispute as to the underlying factual issue of exactly what the merchandise is." Id. (citing Nisho Iwai Am. Corp. v. United States, 143 F.3d 1470, 1472 (Fed.Cir.1998); IKO Indus., Ltd. v. United States, 105 F.3d 624, 626-27 (Fed.Cir.1997); Rollerblade, Inc. v. United States, 112 F.3d 481, 483 (Fed.Cir. 1997); Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1391 (Fed.Cir.1994)); see Avenues In Leather, Inc. v. United States, 317 F.3d 1399, 1402 (Fed.Cir.2003) (citing Mead Corp. v. United States, 283 F.3d 1342, 1345-46 (Fed.Cir.2002) ("Mead TV")) ("If we determine that there is no dispute of material facts, our review of the classification of the goods collapses into a determination of the proper meaning and scope of the HTSUS terms that, as a matter of statutory construction, is a question of law."). Here, there is no genuine dispute as to any material fact. The parties agree that the subject merchandise, variously identified as "Crema Marfil," "Negro Marquina," "Rojo Alicante," "Emperador Marron," and "Botticino": (1) is "stone `slabs' meeting the definition set forth in Additional Note 1 to Chapter 68, HTSUS," Parties' Agreed Statement of Material Undisputed Facts at ¶ 2; (2) is not geological marble but, rather, various types of non-crystalline calcareous stone and, more specifically, non-crystalline limestone,⁴ id. at ¶¶ 4, 8; and (3) is capable of taking a polish. See Pl's Mem. Supp. Mot. Summ. J. ("Pl's Mem.") at 3 ("These are hard stones comprised of calcium carbonate and are capable of taking a high polish."); Def.'s Mem. Supp. Cross-Mot. Summ. J. and Opp'n to Pl's Mot. Summ. J. ("Def.'s Resp.") at 5 ("[N]o dispute exists about the essential nature and material characteristics of the merchandise....").

Classification of merchandise under the HTSUS is governed by the General Rules of Interpretation ("GRI"). See Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed.Cir.1999) (citing Baxter Healthcare Corp. of P.R. v. United States, 182 F.3d 1333, 1337 (Fed.Cir.1999)) ("The HTSUS General Rules of Interpretation (GRI) and the Additional U.S. Rules of Interpretation (U.S.GRI) govern the proper classification of all merchandise and are applied in numerical order."). GRI 1 states that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes. . . ." GRI 1. GRI 6 states that "the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the [General Rules of Interpretation] on the understanding that only subheadings of the same level are comparable." GRI 6. Furthermore "[w]hen ... a tariff term is not defined in either the HTSUS or its legislative history, `the term's correct meaning is its common meaning.'" Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed.Cir.2001) (quoting Mita, 21 F.3d at 1082). "The common meaning of a term used in commerce is presumed to be the same as its commercial meaning." Id, (citing Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed.Cir.1989)). "To ascertain the common meaning of a term, a court may consult `dictionaries, scientific authorities, and other reliable information sources' and `lexicographic and other materials.' "Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 69 C.C.P.A. 128, 673 F.2d 1268, 1271 (Cust. & Pat.App. 1982); Simod, 872 F.2d at 1576). Finally, as an aid to understanding the meaning of a tariff term, "a court may refer to the Explanatory Notes ... which do not constitute controlling legislative history but nonetheless are intended to clarify the scope of HTSUS subheadings and to offer guidance in interpreting subheadings." Mita, 21 F.3d at 1082 (citing Lynteq, Inc. v. United States, 976 F.2d 693, 699 (Fed. Cir.1992)); see Harmonized Commodity Description and Coding System (3d ed. 2002) ("Explanatory Notes" or "EN").

Both parties agree that the term "marble" is not defined by either the HTSUS or its legislative history. This being the case, Plaintiff argues that: (1) the common meaning of the term, as that term is understood commercially, should be employed; and (2) such meaning was used under the predecessor statute to the HTSUS, the Tariff Schedule of the United States ("TSUS"), and that there is no evidence that Congress intended to change its meaning. See Pl's Mem. at 5 ("Customs used to classify stones under the term marble that met the common trade definition-all stones that took a polish as marble."). Plaintiff contends that, with the adoption of the HTSUS, Customs changed its position so that now "all stone terms used in the HTSUS should be construed to cover only those stones meeting the geological definition of the term and not the common and commercial meaning of the term...." Id. at 5-6. Plaintiff argues that Customs's change in position is not in accordance with law because it has "cite[d] no authority for this proposition in the HTSUS itself, in the legislative history or in the case law. Instead, the only rationale for its change is a general notion that, whenever possible, it should harmonize the treatment of stones with the treatment accorded by other countries." Id. at 6. Plaintiff further contends that "[a]s Congressional legislative history and case law make clear, absent clear and specific evidence to the contrary, a tariff term is construed the same way under the HTSUS as it was under the TSUS." Id. at 6 (citing Anhydrides & Chems., Inc. v. United, States, 130 F.3d 1481, 1484 (Fed.Cir.1997)).

The Government counters that the court should reject Plaintiffs arguments for several reasons. First, it contends that the court should afford deference to Customs's interpretation of the term "marble" as contained in a Customs "Informed Compliance Publication," What Every Member of the Trade Community Should Know About: Classification of Marble ("Classification of Marble"), because of this publication's "power to persuade." Def.'s Resp. at 7-8; see United States v. Mead Corp., 533 U.S. 218, 228, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) ("Mead III"); see Mead III (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)) ("The weight [accorded to an administrative] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements and all those factors which give it power to persuade, if lacking power to control." (bracketing in original)). Second, the Government argues that the common meaning of the term "marble" is limited to the geological meaning of that term. Def. `s Resp. at 9. Third, the Government argues that the Explanatory Notes to the HTSUS provide evidence that the term "marble" is to be narrowly construed as only covering geological marble. Id, at 16-17. Finally, the Government contends that the "interpretation of the tariff term 'marble' under the TSUS does not control the interpretation of that term under the HTSUS." Id. at 17.

Thus, the question before the court is the meaning of the term "marble" as used in HTSUS heading 6802.

DISCUS...