Russell Stadelman & Co. v. U.S., Slip Op. 99-139.

• Decision Date: 21 December 1999
• Docket Number: Court No. 96-08-01911.,Slip Op. 99-139.
• Parties: RUSSELL STADELMAN & CO., Plaintiff, v. UNITED STATES, Defendant,
• Court: U.S. Court of International Trade

83 F.Supp.2d 1356

RUSSELL STADELMAN & CO., Plaintiff, v. UNITED STATES, Defendant,

Slip Op. 99-139.

Court No. 96-08-01911.

United States Court of International Trade.

December 21, 1999.

Sandler, Travis & Rosenberg, P.A., (Edward M. Joffe and Beth C. Ring), for Plaintiff.

David W. Ogden, Acting Assistant Attorney General, Joseph I. Liebman, Attorney-in-Charge, International Trade Field Office, Mikki Graves Walser, Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice; George Brieger, Office of Assistant Chief Counsel, International Trade Litigation, U.S. Customs Service, for Defendant, of counsel.

Opinion

POGUE, Judge.

Plaintiff, Russell Stadelman & Co., challenges a decision of the United States Customs Service ("Customs") denying Plaintiff's protests filed in accordance with section 514 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1514 (1994). At issue is the proper tariff classification under 19 U.S.C. § 1202 (1994), Harmonized Tariff Schedule of the United States ("HTSUS"), of Plaintiff's imports of sumauma (Ceiba pentandra) plywood, faveira (Parkia spp.) plywood, and mangue (T.rhoisoia) plywood from Brazil.¹

Plaintiff claims that the subject merchandise is classifiable under subheading 4412.11.20, HTSUS (1992-1995),² which covers "[p]lywood consisting solely of sheets of wood, each ply not exceeding 6 mm in thickness ... [w]ith at least one outer ply of the following tropical woods: ... Baboen[.]" Plywood imported from Brazil and classifiable under subheading 4412.11.20, HTSUS, is eligible for duty-free treatment under the Generalized System of Preferences ("GSP"). Customs classified the merchandise under a residual provision, subheading 4412.12.20, HTSUS (1992-1995), which covers "[p]lywood consisting solely of sheets of wood, each ply not exceeding 6 mm in thickness[,]" and not requiring an outer ply of one of the tropical woods enumerated in subheading 4412.11, HTSUS. Brazilian imports classifiable under subheading 4412.12.20, HTSUS, are not eligible for GSP treatment; therefore, Customs assessed the subject merchandise at the provided 8% duty rate.

Jurisdiction is predicated on 28 U.S.C. § 1581(a)(1994); therefore, Customs' classification is subject to de novo review pursuant to 28 U.S.C. § 2640 (1994). This action is before the Court on the cross-motions for summary judgment made by Plaintiff and Defendant, the United States, pursuant to USCIT Rule 56.³

Standard of Review

Under USCIT Rule 56, summary judgment is 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 Rule 56(d); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The Court analyzes a Customs classification issue in two steps: "first, [it] construe[s] the relevant classification headings; and second, [it] determine[s] under which of the properly construed tariff terms the merchandise at issue falls." Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1365 (Fed.Cir.1998) (citing Universal Elecs., Inc. v. United States, 112 F.3d 488, 491 (Fed.Cir.1997)). Whether the subject merchandise is properly classified is ultimately a question of law. See id. Summary judgment of a classification issue is therefore appropriate "when there is no genuine dispute as to the underlying factual issue of exactly what the merchandise is."⁴ Id.

Here, the parties agree what the merchandise is. The parties agree that the subject merchandise "consists of sheets of plywood, with no single ply exceeding 6 mm. [sic] in thickness, and [that are] not surface covered." Pl.'s Statement of Material Facts As To Which There Is No Genuine Issue To Be Tried ("Pl.'s Statement") ¶ 1; Def.'s Resp. to Pl.'s Statement ¶ 1. Moreover, the parties agree that the merchandise at issue consists of sumauma (Ceiba pentandra) plywood, faveira (Parkia spp.) plywood, and Mangue (T.rhoisoia) plywood.⁵ See Def.'s Additional Statement of Material Facts As To Which There Is No Genuine Issue To Be Tried ("Def.'s Additional Statement") ¶ 1; Pl.'s Resp. To Def.'s Additional Statement ¶ 1. Thus, Plaintiff and Defendant do not disagree as to what the merchandise is; they simply disagree as to how it should be classified. Summary judgment of the classification issue is therefore appropriate.

Discussion

The HTSUS consists of (A) the General Notes; (B) the General Rules of Interpretation; (C) the Additional U.S. Rules of Interpretation; (D) sections I to XXII, inclusive (encompassing chapters 1 to 99, and including all section and chapter notes, article provisions, and tariff and other treatment accorded thereto); and (E) the Chemical Appendix.

The proper classification of merchandise is governed by the General Rules of Interpretation ("GRI") to the HTSUS. See Orlando Food Corp. v. United States, 140 F.3d 1437, 1439 (Fed.Cir.1998). GRI 1 for the HTSUS provides that, "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...." GRI 1, HTSUS; see also Orlando Food Corp., 140 F.3d at 1440; Harmonized Commodity Description and Coding System, Explanatory Notes (1st ed. 1986) ("Explanatory Notes")⁶ at 1 ("[T]he terms of the headings and any relative Section or Chapter Notes are paramount, i.e., they are the first consideration in determining classification[.]"). Here, the parties agree that the subject imports should be classified under heading 4412, HTSUS, but dispute the correct subheading. Therefore, the Court reviews the parties' proffered classifications pursuant to GRI 6. See GRI 6, HTSUS ("For legal purposes, 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 [preceding GRIs], on the understanding that only subheadings at the same level are comparable.").

The merchandise at issue literally falls within the scope of Customs' classification under subheading 4412.12.20, HTSUS, a residual provision covering plywood without an outer ply of one of the tropical woods enumerated in subheading 4412.11, HTSUS. Plaintiff argues, however, that the subject merchandise is more specifically classifiable under subheading 4412.11.20, HTSUS, as plywood with at least one outer ply of the tropical wood "baboen." Classification of imported merchandise in a residual, or "basket," provision is only appropriate when there is no tariff category that covers the merchandise more specifically. See EM Indus., Inc. v. United States, 22 CIT ___, ___, 999 F.Supp. 1473, 1480 (1998) ("`Basket' or residual provisions of HTSUS Headings ... are intended as a broad catch-all to encompass the classification of articles for which there is no more specifically applicable subheading."); E.M. Chemicals v. United States, 20 CIT ___, ___, 923 F.Supp. 202, 206 (1996); see also GRI 3(a), HTSUS. Therefore, before the Court may conclude that Customs correctly classified the subject goods under subheading 4412.12.20, HTSUS, we must first address whether they are more specifically classifiable under subheading 4412.11.20, HTSUS. The precise issue before the Court, then, is whether Plaintiff's imports of sumauma (Ceiba pentandra) plywood, faveira (Parkia spp.) plywood, and mangue (T.rhoisoia) plywood qualify as "baboen."

Neither the HTSUS nor its legislative history defines "baboen." "When a tariff term is not defined in either the HTSUS or its legislative history, the term's correct meaning is its common meaning." Mita Copystar America v. United States, 21 F.3d 1079, 1082 (Fed.Cir.1994) (citing Lynteq, Inc. v. United States, 976 F.2d 693, 697 (Fed.Cir.1992)). To determine the common meaning of a tariff term, "[a] court may rely upon its own understanding of terms used, and may consult standard lexicographic and scientific authorities[.]" Id. (citing Brookside Veneers, Ltd. v. United States, 6 Fed. Cir. (T) 121, 125, 847 F.2d 786, 789 (1988)). "Additionally, a court may refer to the Explanatory Notes of a tariff subheading, 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." Id. (citing Lynteq, 976 F.2d at 699).

Thus, the Court turns to various dictionaries and scientific authorities to construe the tariff term "baboen." Although most of the dictionaries the Court consulted did not define the term, the ones that did defined "baboen" as a "tropical American timber tree (Myristica surinamensis) with reddish wood." Webster's New International Dictionary 197 (1955); Webster's Third New International Dictionary 156 (1993). Myristica is a botanical genus within the family Myristicaceae. See The Concise Oxford Dictionary of Botany, 268 (Michael Allaby ed., 1992).

Meanwhile, a more technical dictionary defines "baboen" as "Virola surinamensis [.]" D.J. Mabberley, The Plant Book: A Portable Dictionary of the Vascular Plants 71 (1997). Virola surinamensis, in turn, is the scientific name for a tropical American timber within the botanical genus Virola, which also falls under the botanical family Myristicaceae. See id. 747-48. Plaintiff's Exhibit 1 to its motion for summary judgment, another technical source, also defines "baboen" as Virola surinamensis, citing as related species Virola sebifera and Virola melinonii. See Surinam Forest Service, Surinam Timber: A Summary with Brief Descriptions of the Main Timber Species of Surinam 7-8 (2d ed.1955).

The Court cannot locate a technical dictionary recognizing Myristica surinamensis as an actual tree. Thus, the standard and technical dictionaries do not appear to define "baboen...