**United States Court of Appeals for the Federal Circuit**

03-1555

INTERCONTINENTAL MARBLE CORPORATION,

> Plaintiff-Appellee,

v\.

UNITED STATES,

> Defendant-Appellant.

[Alexander D. Chinoy]{.underline}, Miller & Chevalier Chartered, of
Washington, DC, argued for plaintiff-appellee. With him on the brief
were [Richard H. Abbey]{.underline} and [Joel W. Rogers]{.underline}.

[Harry A. Valetk]{.underline}, Attorney, Commercial Litigation Branch,
Civil Division, International Trade Field Office, United States
Department of Justice, of New York, New York, argued for
defendant-appellant. With him on the brief were [Peter D.
Keisler]{.underline}, Assistant Attorney General and [David M.
Cohen]{.underline}, Director, of Washington, DC; and [Barbara S.
Williams]{.underline}, Attorney in Charge, International Trade Field
Office, of New York, New York. Of counsel on the brief was [Chi S.
Choy]{.underline}, United States Customs & Border Protection, of New
York, New York.

Appealed from: United States Court of International Trade

Judge Richard K. Eaton

United States Court of Appeals for the Federal Circuit

03-1555

INTERCONTINENTAL MARBLE CORPORATION,

> Plaintiff-Appellee,

v\.

UNITED STATES,

> Defendant-Appellant.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DECIDED: August 25, 2004

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Before LOURIE, GAJARSA, and PROST, [Circuit Judges]{.underline}.

GAJARSA, [Circuit Judge]{.underline}.

The United States (the "government") appeals from the final decision of
the United States Court of International Trade granting summary judgment
in favor of Intercontinental Marble ("ICM"), thereby reversing the
classification by the United States Bureau of Customs and Border
Protection ("Customs") of certain merchandise imported by ICM.
[Intercont'l Marble Corp. v. United States]{.underline}, 264 F. Supp. 2d
1306 (Ct. Int'l Trade 2003). Because we agree that Customs has not
identified any support for its changed interpretation of the Harmonized
Tariff Schedule of the United States ("HTSUS"), we affirm the Court of
International Trade's order.

I. BACKGROUND

ICM is an importer of stone products, including varieties known as
"Crema Marfil," "Negro Marquina," "Rojo Alicante," "Emperador Marron,"
and "Botticino." [Id.]{.underline} at 1310. There are no issues of
disputed fact on appeal, as the parties agree that the merchandise: (1)
is stone slab under the definition set forth in Additional Note 1 to
Chapter 68 of the Harmonized Tariff Schedule of the United States;[^1]
(2) is not geological marble, but is instead non-crystalline limestone;
and (3) is capable of taking a polish. [Id.]{.underline} Both parties
further agree that the term "marble" is not defined in either the HTSUS
or its legislative history. [Id.]{.underline} at 1311. The single issue
to be resolved on appeal is whether Customs properly classified ICM's
imports under the HTSUS subheading for "other calcareous stone," or if,
as ICM contends, Customs should have classified those items under the
subheading for "marble."[^2]

The HTSUS provides the following subheadings for stone products:

> 6802 Worked monumental or building stone (except slate) and articles
> thereof, other than goods of heading 6801; mosaic cubes and the like,
> of natural stone (including slate), whether or not on a backing;
> artificially colored granules, chippings and powder, of natural stone
> (including slate):
>
> . . . .
>
> Other:
>
> 6802.91 Marble, travertine and alabaster:
>
> Marble:
>
> 6802.91.05 Slabs 2.6%
>
> 6802.91.15 Other 5.1%
>
> Travertine:
>
> 6802.91.20 Articles of subheading 6802.21.10 that have been dressed or
> polished, but not\
> further worked 4.6%
>
> 6802.91.25 Other 4%
>
> 6802.91.30 Alabaster 4.8%
>
> 6802.92.00 Other calcareous stone 5.1%
>
> 6802.93.00 Granite 3.8%

Chapter 68, HTSUS (1998).[^3] Based on its Informed Compliance
Publication, Customs classified ICM's merchandise under subheading
6802.92.00 ("Other calcareous stone"). [See]{.underline} [What Every
Member of the Trade Community Should Know About: Classification of
Marble]{.underline} (U.S. Customs, Sept. 2001). In this publication,
Customs explains:

> Numerous rulings issued by Customs Headquarters have held that
> geological definitions of stone must be followed under the Harmonized
> Tariff Schedule (HTSUS). Although polished limestone (or limestone
> capable of taking a polish) is often called "marble" in the trade,
> Headquarters has ruled that it is classifiable as other calcareous
> stone in subheading 6802.92.00, HTSUS, not as marble in subheading
> 6802.91. Since geological definitions govern the classification of
> stone under the HTSUS and these two stones are regarded as distinct
> geological entities, limestone may not be classified as marble.

[Classification of Marble]{.underline}, [supra]{.underline}, at 4. One
of the numerous rulings referenced by the publication explains that
under the former tariff schedule, the Tariff Schedule of the United
States ("TSUS"),

> all stones that polish, whether or not such stone met the technical
> definition of marble, were classified by Customs as marble. However,
> under the newly-enacted HTSUS\[\], whose basic provisions are common
> to the tariffs of all of the nations using the Harmonized Commodity
> Description and Coding System, it is imperative that the United
> States, whenever possible, define the various tariff terms in a manner
> consistent with all nations utilizing the HTSUS\[\]. It is for this
> reason that we have settled upon the commonly-accepted geological
> definition of various stones to determine the proper classification
> under the HTSUS\[\].

Headquarters Ruling Letter No. 087,014 (June 12, 1990), [available
at]{.underline} 1990 U.S. CUSTOM HQ LEXIS 4791 (hereinafter, "HRL
087,014"); [see also]{.underline} [Intercont'l Marble]{.underline}, 264
F. Supp. 2d at 1314 n.8 (collecting additional rulings). As stone
capable of taking a polish, ICM's imports would have been classified as
marble under the TSUS. [See]{.underline} [Intercont'l
Marble]{.underline}, 264 F. Supp. 2d at 1310; HRL 087,014.

The Court of International Trade rejected Customs' classification of
ICM's merchandise. Consistent with the concession made by Customs in its
publication and rulings, the court concluded that the commercial meaning
of marble was broader than its geological definition and that,
consequently, "it \[was\] beyond debate that the commercial meaning of
the term . . . include\[d\] the subject merchandise." [Intercont'l
Marble]{.underline}, 264 F. Supp. 2d at 1313 & n.5 (citing
[Classification of Marble]{.underline}, [supra]{.underline}, at 4).
Reviewing the plain language of the HTSUS, the explanatory notes, and
the change in structure of the schedule between the TSUS and the HTSUS,
however, the Court of International Trade found "no indication that
Congress intended to change the meaning of the term 'marble' under the
HTSUS." [Id.]{.underline} at 1314; [see also]{.underline}
[id.]{.underline} at 1316-17, 1320-21. The court additionally explained
that in the absence of an expressed legislative intent, Customs'
publication, [Classification of Marble]{.underline}, was not entitled to
any deference. Finding no authority for Customs' narrowing definition,
the Court of International Trade determined that marble retained its
commercial meaning under the HTSUS. Accordingly, the court granted ICM's
summary judgment motion and denied the government's. The government
timely appealed and we have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(5).

II\. DISCUSSION

A. [Standard of Review]{.underline}

We review the grant of summary judgment by the Court of International
Trade de novo. [Boen Hardwood Flooring, Inc. v. United
States]{.underline}, 357 F.3d 1262, 1264 (Fed. Cir. 2004). Summary
judgment is appropriate where, as here, there is no issue of material
fact regarding the imported merchandise and the disposition of the
matter depends entirely on the interpretation of the relevant tariff
provision, which we also determine de novo. [Id.]{.underline} Despite
our de novo review of interpretations of tariff provisions,
classification decisions by Customs interpreting provisions of the HTSUS
may receive some deference under the principles of [Skidmore v. Swift &
Co.]{.underline}, 323 U.S. 134 (1944). [See]{.underline} [Rocknel
Fastener, Inc. v. United States]{.underline}, 267 F.3d 1354, 1357 (Fed.
Cir. 2001) (citing [United States v. Mead Corp.]{.underline}, 533 U.S.
218 (2001)).

B. [Analysis]{.underline}

Where a tariff term is not defined in either the HTSUS or its
legislative history, the term is given its common meaning, which is
presumed to be the same as its commercial meaning. [Rocknel
Fastener]{.underline}, 267 F.3d at 1356; [Carl Zeiss, Inc. v. United
States]{.underline}, 195 F.3d 1375, 1379 (Fed. Cir. 1999). "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.'" [Rocknel Fastener]{.underline},
267 F.3d at 1356-57 (quoting [C.J. Tower & Sons v. United
States]{.underline}, 673 F.2d 1268, 1271 (CCPA 1982)). Furthermore, in
the absence of a clear congressional intent to change the statutory
meaning of a tariff term, a court may rely on the meaning of that term
under the TSUS "as a guide to resolving uncertainties" under the HTSUS.
[Anhydrides & Chems. v. United States]{.underline}, 130 F.3d 1481, 1484
(Fed. Cir. 1997). House of Representatives Conference Report No. 100-576
similarly explains that:

In light of the significant number and nature of changes in nomenclature
from the TSUS to the HTS\[US\], decisions by the Customs Service and the
courts interpreting nomenclature under the TSUS are not deemed
dispositive in interpreting the HTS\[US\]. Nevertheless, on a
case-by-case basis prior decisions should be considered instructive in
interpreting the HTS\[US\], particularly where the nomenclature
previously interpreted in those decisions remains unchanged and no
dissimilar interpretation is required by the text of the HTS\[US\].

H.R. Conf. Rep. No. 100-576, at 549 (1988), [reprinted in]{.underline}
1988 U.S.C.C.A.N. 1547, 1582.

The government opens its brief with a variety of dictionary sources
providing definitions of "marble," and asserts that the common meaning
of the term reflected by those definitions supports a geological
definition of the term. As the Court of International Trade noted,
however, while the dictionary definitions cited by the government do
demonstrate that marble has a geological definition, those very same
sources also acknowledge a broader non-geological meaning.
[See]{.underline} [The Random House Dictionary of the English
Language]{.underline} 875 (1969) (defining marble as "limestone in a
[more or less]{.underline} crystalline state, and capable of taking a
high polish" (emphasis added)) (cited in Br. for Appellant at 10); 9
[Oxford English Dictionary]{.underline} 355 (2d ed. 1998) (defining
marble as "\[l\]imestone in a crystalline ([or, less strictly, also a
granular]{.underline}) state and capable of taking a polish" (emphasis
added)) (electronic version cited in Br. for Appellant at 10). ICM
submits additional definitions supporting the Court of International
Trade's conclusion (as well as its own position). [See]{.underline} Paul
W. Thrush, U.S. Dep't of the Interior, [A Dictionary of Mining, Mineral
and Related Terms]{.underline} 168 (1968) ("A true marble is a limestone
which has been crystallized by heat or pressure and is capable of taking
a polish. Commercially, any limestone that is sufficiently hard and
coherent to take a good polish is called a marble."); [McGraw Hill
Encyclopedia of the Geological Sciences]{.underline} 331 (2d ed. 1987)
(defining marble as "\[a\] term applied commercially to any limestone or
dolomite taking polish"). As the foregoing authorities make clear, the
common meaning of marble---even as reflected in the government's own
sources---is broader than the geological definition that Customs wishes
to assign to the term.

The broader definition is also consistent with Customs' treatment of
stone products under the TSUS, as acknowledged in Customs' ruling letter
and publication. [See]{.underline} HRL 087,014 ("Under the TSUS, all
stones that polish, whether or not such stone met the technical
definition of marble, were classified by Customs as marble.");
[Classification of Marble]{.underline}, [supra]{.underline}, at 4
("\[P\]olished limestone (or limestone capable of taking a polish) is
often called 'marble' in the trade."). The government now attempts to
overcome Customs' longstanding interpretation by arguing that the
organizational changes to the tariff schedule between the TSUS and the
HTSUS demonstrate the congressional intent necessary to justify its
departure from its prior interpretation. The government also attempts to
diminish the significance of Customs' prior interpretation under the
TSUS, explaining that the prior interpretation was itself in error and
citing several cases decided prior to the enactment of the TSUS that
afforded marble its narrow geological definition.

The relevant provisions in the TSUS provided the following:

Jet; and articles of alabaster, of jet, or of alabaster and jet:

513.91 Jet, not manufactured Free

513.94 Other, not specifically provided for 5.3%

Limestone and articles of limestone:

Limestone suitable for use as monumental, paving, or building stone:

514.21 Not hewn, not sawed, not dressed, not polished, and\
not otherwise manufactured Free

514.24 Hewn, sawed, dressed, polished, or otherwise\
manufactured 5.3%

. . . .

Marble, breccia, and onyx, and articles of one or more of these
substances:

. . . .

Slabs:

514.61 Not rubbed and not polished in whole or in part 2.1%

514.65 Rubbed or polished in whole or in part 2.8%

. . . .

. . . .

Travertine and articles of travertine

. . . .

514.24 Travertine, hewn, sawed, dressed, polished, or otherwise
manufactured, and suitable for use as\
monumental, paving, or building stone 6%

TSUS, Schedule 5, Part 1, Subpart C (1987). Under the TSUS, marble,
travertine, alabaster, and "Limestone and articles of limestone" were
all parallel subheadings of subpart C, entitled "Stone and Stone
Products." Following the reorganization in the HTSUS, marble,
travertine, and alabaster are now grouped together under a single
subheading that is parallel with subheadings for "Other calcareous
stone," granite, and "Other stone."[^4] [See]{.underline} Chapter 68,
subheading 6802.91, HTSUS (1998).

The government argues that this change in grouping demonstrates a
legislative intent to geologically define marble for two reasons. The
first is that the common theme in marble's new grouping (with
travertine, alabaster, and other calcareous stone) is the similar
geological composition of the stones. This focus on geological
composition is continued from subheading 2515, the government continues,
which identifies materials by their specific gravities.[^5] The omission
of a subheading for limestone and the appearance of the new subheading
for calcareous stone, according to the government, is further evidence
of Congress's intent to replace commercial definitions with geological
ones. The government's second argument is that interpreting marble other
than according to its geological definition renders the "travertine"
subheading superfluous.

We disagree with the inference the government draws from the
reorganization of the HTSUS. Even accepting the government's argument
that the subheading for marble, travertine, and alabaster is based on
geological similarities between the subject merchandise, this does not
amount to the "clear evidence of legislative intent" required to
overcome the presumption that the terms in the tariff schedules carry
their commercial meanings. [Lonza, Inc. v. United States]{.underline},
46 F.3d 1098, 1106-07 (Fed. Cir. 1995). To the contrary, the commercial
definition of marble fits comfortably with the geological theme
identified by the government, and the government has not asserted
otherwise regarding the commercial definitions for travertine or
alabaster. The sole distinction between the commercial and geological
definitions for marble is the degree of crystallinity in the stone. Both
definitions describe marble as consisting of a limestone base, which is
the theme the government seizes upon for its arguments. [See,
e.g.]{.underline}, 9 [Oxford English Dictionary]{.underline} 355 (2d ed.
1998) (explaining that marble is limestone capable of taking a polish
but may be crystalline or granular). The government's geological
explanation for the changes to the organization of the HTSUS, however,
does not require a departure from the presumed commercial meanings of
the terms when the commercial meanings provide an equally sensible
explanation. Rather, the nature of a presumption requires us to adhere
to the commercial meanings here, where the competing interpretations
amount to a draw.

Attempting to undermine the sensibility of the commercial definition,
the government argues that the subheading for travertine is superfluous
if marble is not given its geological definition. We disagree. The
government asserts, and the Court of International Trade found, that
travertine is typically known in trade as marble. [Intercont'l
Marble]{.underline}, 164 F. Supp. 2d at 1319. If Congress intended for
marble to carry its commercial definition, the government explains, the
marble subheading would subsume travertine and Congress would not have
needed to create a separate travertine subheading. While, again, the
government poses a possible explanation for the organization, equally
plausible is the possibility that Congress simply wished to impose a
duty on travertine different from that which it imposed on marble.
[See]{.underline} HTSUS, General Rules of Interpretation 3(a)
(explaining that "the heading which provides the most specific
description shall be preferred to headings providing a more general
description"). Thus, although the government has conceived of an
alternate theory, it is not one that undermines the presumption in favor
of the commercial meaning of tariff terms. [See]{.underline}
[Lonza]{.underline}, 46 F.3d at 1106-07.

In light of the foregoing discussion, the government's argument that
Customs' interpretation of marble under the TSUS was erroneous may be
quickly dispatched. Faced with its longstanding use of the commercial
meaning of "marble," the government explains that Customs' prior
interpretation under the TSUS was actually incorrect. By adopting the
geological definition under the HTSUS, the government continues, Customs
has corrected the error. According to the government, the proper
definition is reflected in cases decided prior to the enactment of the
TSUS such as [Bockmann v. United States]{.underline}, 158 F. 807, 808
(2d Cir. 1908), and [United States v. Jackson]{.underline}, 1 Ct. Cust.
App. 27 (1910). In response we need only quote the Court of
International Trade, which responded ably to the government's argument:

Given that Customs's interpretation of the term "marble" under the TSUS
was at odds with prior judicial constructions of that term, had it been
Congress's intent to fix the meaning of the term "marble" to encompass
only stone meeting the geological meaning of that term it would have
done so unambiguously.

[Intercont'l Marble]{.underline}, 264 F. Supp. 2d at 1319 n.16. This
principle has long been a part our jurisprudence: "The common meaning of
a tariff term, once established, remains controlling until a subsequent
change in statute compels a revised construction of the term's meaning."
[Lonza]{.underline}, 46 F.3d at 1106 (citing [United States v. Great
Pac. Co.]{.underline}, 23 C.C.P.A. 319, 327 (1936)). Having concluded
that no change to the definition of marble resulted from the enactment
of the HTSUS, we similarly conclude that Congress preferred the
interpretation of the term under the TSUS to that articulated in
[Bockmann]{.underline} and [Jackson]{.underline}.

The government next challenges the Court of International Trade's
reliance on the Explanatory Notes of the World Customs Organization (the
"ENs"). Given our conclusion that neither the text nor the structure of
the HTSUS compels deviation from the commercial definition of marble,
this argument is ineffectual. We do note, however, that the Court of
International Trade clearly explained that it was relying on the ENs for
guidance purposes only. [See]{.underline} [Intercont'l
Marble]{.underline}, 264 F. Supp. 2d at 1320 (citing [Mita Copystar Am.
v. United States]{.underline}, 21 F.3d 1079, 1082 (Fed. Cir. 1994)).
Furthermore, as the Court of International Trade pointed out, the
definition of "marble" provided in the ENs favors the commercial meaning
of the term. The ENs explain that "\[m\]arble is a hard calcareous
stone, homogeneous and fine-grained, [often crystalline]{.underline} and
either opaque or translucent." World Customs Organization, [Harmonized
Commodity Description and Coding System, Explanatory Notes]{.underline}
218 (3d ed. 2002) (emphasis added). In other words, crystallinity---a
requirement under the geological definition of marble---is not required
under the definition provided in the ENs. Marble that is "often," but
sometimes not, crystalline, is not geological marble under Customs'
definition.

Finally, although additional reasons may be unnecessary, our decision in
[Anhydrides & Chemicals]{.underline} counsels against adopting the
definition of marble advanced by Customs. In [Anhydrides &
Chemicals]{.underline}, the court explained that an "interpretation of
the HTSUS classification in a way that would markedly increase the duty
\[on an article\], although there was no prior indication that the rate
was intended to undergo a major increase, is viewed with caution." 130
F.3d at 1484. The court's statement was premised in part on President
Ronald Reagan's request for the International Trade Commission to
investigate the impact of adopting the Harmonized Tariff System, to whom
he explained: "In converting the tariff schedules the Commission should
avoid, to the extent practicable and consonant with sound nomenclature
principles, changes in rates of duty on individual products."
Institution of Investigation for the Conversion of the Tariff Schedules
of the United States into the Nomenclature Structure of the Harmonized
System, 46 Fed. Reg. 47,897 (Sept. 30, 1981) (reprinting President
Reagan's request in full).

As the Court of International Trade noted, adopting Customs'
interpretation would nearly double the tariff on merchandise excluded
from the marble subheading as a result of Customs' new definition.
[Intercont'l Marble]{.underline}, 264 F. Supp. 2d at 1319 n.16. The duty
on marble slabs under the TSUS was either 2.1% or 2.8% depending on
whether the slabs were polished. TSUS, Schedule 5, Part 1, subheadings
514.61, 514.65. Similarly, the duty on marble slabs under the HTSUS is
2.6%. HTSUS, Chapter 68, subheading 6802.91.05. By comparison, the duty
on articles falling within the "other calcareous stone" subheading is
5.1%. [Id.]{.underline} subheading 6802.92.00. Had Congress intended to
effect such a significant change in duty, we would expect a more
pronounced expression of its intent to appear in the HTSUS. In the
absence of such an expression, there has been an insufficient showing
that Congress intended to deviate from the definition applied under the
TSUS.

III\. CONCLUSION

In sum, we agree with the Court of International Trade that Customs has
identified no authority to narrow the definition of "marble" from the
commercial meaning conceded by Customs to include "all stones that
polish" to a geological definition requiring crystallization. We
therefore adhere to our presumption that marble is defined according to
its common, commercial meaning, as it was prior to the enactment of the
HTSUS. Accordingly, the decision of the Court of International Trade is

[AFFIRMED.]{.underline}

IV\. COSTS

Costs to appellee.

[^1]: ^?^ Additional Note 1 provides:

    > For the purposes of heading 6802, the term "[slabs]{.underline}"
    > embraces flat stone pieces, not over 5.1 cm in thickness, having a
    > facial area of 25.8 cm^2^ or more, the edges of which have not
    > been beveled, rounded or otherwise processed except such
    > processing as may be needed to facilitate installation as tiling
    > or veneering in building construction.

    Chapter 68, HTSUS (2004).

[^2]: "Calcareous" means "Of the nature of (carbonate of) lime; composed
    of or containing lime or lime-stone. 2 [Oxford English
    Dictionary]{.underline} 774 (2d ed. 1998). The parties stipulated to
    a definition of the term wherein "calcareous stone" was "stone
    resembling, containing, or composed of calcium carbonate."

[^3]: ^?^ According to the Court of International Trade's opinion, ICM
    is challenging the classification of merchandise entering between
    the years 1995 and 1998. For simplicity of analysis, we refer only
    to the 1998 HTSUS in our discussion.

[^4]: ^?^ All of these subheadings are part of heading 6802, which is
    entitled "Worked monumental or building stone (except slate) and
    articles thereof, other than goods of heading 6801; mosaic cubes and
    the like, of natural stone (including slate), whether or not on a
    backing; artificially colored granules, chippings and powder, of
    natural stone (including slate)."

[^5]: ^?^ Subheading 2515 covers "\[m\]arble, travertine and other
    calcareous monumental or building stone of an apparent specific
    gravity of 2.5 or more, and alabaster" that does not qualify as
    "worked monumental or building stone" under subheading 6802.