Slip Op. 04-144 United States Court of International Trade WITEX, U.S.A., INC., ET AL.,

Plaintiff,

v. UNITED STATES, Defendant. Before: Pogue, Judge Consol. Court No. 98-00360

[Cross motions for summary judgement denied.] Decided: November 15, 2004 Aitken Irvin Berlin & Vrooman, LLP ( Bruce Aitken , Bruce de Grazia , and Virginie Lecaillon (consultant) ) for the Plaintiff. Neville Peterson LLP ( Maria E. Celis and John M. Peterson ) for the Amicus Curiae in support of Witex U.S.A, Inc., et al., Congoleum Corporation. Peter D. Keisler , Assistant Attorney General, Barbara S. Williams , Attorney in Charge, International Trade Field Office, Amy M. Rubin , Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Yelena Slepak , Attorney, Office of Assistant Chief Counsel, U.S. Customs and Border Protection, for Defendant.

OPINION Pogue, Judge : This case involves the proper meaning of the term “tileboard” as used in subheading 4411.19.30 of the Ha rmonized Tariff Schedule of the United States (1997) (“HTSUS”). Plaintiffs Witex, U.S.A., Inc. and Mannin gt on Mills (“Witex”) challenge theConsol. Court No. 98-00360 Page 2

1 Effective March 1, 2003, the United States Customs Service was renamed the United States Bureau of Customs and Border Protection. See Homeland Security Act of 2002, Pub. L. No. 107- 296 § 1502, 2002 U.S.C.C.A.N. (116 Stat.) 2135, 2308; Reorganization Plan Modification for the Department of Homeland Security, H.R. Doc. No. 108-32, at 4 (2003).

2 4411 Fiberboard of wood or other ligneous

materials, whether or not bonded with resins or other organic substances: Fiberboard of a density exceeding 0.8 g/cm 3 : 4411.11.00 Not mechanically worked or surface covered

* * * 4411.19 Other: 4411.19.20 Not surface covered (except for oil treatment)

* * * Other: 4411.19.30 Tileboard which has been continuously worked along any of its edges and is dedicated for use in the construction of walls, ceilings or other parts of buildings 4411.19.40 Other UnitedStates Customs Servi c e’s 1 (“Customs” or “Government”) liquidation of its laminated flo o ring panels (“merchandise” or “flooring panels”), claiming that t he merchandise should be liquidatedas “tileboard” u nder heading 4411.19.30, HTSUS, and therefore duty free. 2 The Government avers that Witex’s product is not “tileboard” and therefore sh ould be classified under a basketConsol. Court No. 98-00360 Page 3

3 This protest covers Entry No. 471-0953408-2. Pl.’s Compli. at para. 1(a); Pl.’s Mem. Opp’n Def.’s Cross-Mot. Summ. J. (“Pl.’s Resp.”) at 2; see also Def.’s Reply Pl.’s Resp. Def.’s Cross-Mot. Summ. J. (“Def.’s Reply”) at 3 & n.14.

4 As stated by Witex’s Complaint, the Mannington challenges involve (1) Ruling on Protest No. 1001-99-105507 covering Entry Nos. D82-0981523, D82-0981640, D82-0981765, D82-0981788, D82- 0981856, and D82-0981985 and (2) Ruling on Protest No. 1001-99- 105508 covering Entry Nos. D82-0982266, D82-0982541, D82-0982760, and D82-0982837. Summons Mannington Mills, at 1,3 (Mar. 21, 2000), Summons Witex at 1 (Feb. 13, 1998). Because Witex did not include Entry No. 82-0980133 within its Summons, Summons Witex at 1 (Feb. 13, 1998), this entry is not properly before the Court, Pl.’s Answers Ct.’s Questions Pursuant Order Dated Sept. 20, 2004 provision for fiberboard with a density greater than 0.8 g/cm 3 , and Witex’s merchandise should be assessed a duty of 6% ad valorem . See subheading4411.19.40, HTSUS. Before th e Court are cross motions for summary judgment pursu ant to US CIT Rule 56. The Court has exclusive jurisdic ti on over this case. See 28 U.S.C. § 1581(a)(2000). Finding material issues in dispute, the Court denies both motions for summary judgment.

BACKGROUND Witex, U.S.A., Inc. is an importer of laminate panels from its parent, Witex GmbH, a German Corporation. Pl.’s Co ns ol. Compl. (“Compli.”) at para. 4(a). Mannington Mills, Inc. is a U.S. company which also imports laminate panels from Witex, GmbH. Pl.’s Consol. Compli. at para. 4(b). This case involves a protest by Witex from 1995 covering one entry, 3 and two protests by Mannington Mills from 1996 covering ten entries. 4Consol. Court No. 98-00360 Page 4

at 1.

5 The Court notes the Government’s objection as to whether Witex has sufficiently proved the identity of its merchandise, i.e., to which type of panels, or from what collection, the contested merchandise belonged. Def.’s Reply at 4 n.18. The cases the Government cites, Group Italglass, U.S.A., Inc. v. United States , 16 CIT 763, 765, 798 F. Supp. 727, 728 (1992) and Fabil Mfg. Corp. v. United States , 25 CIT 514, 517 (2001) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986)), do establish that the burden of proof is on the plaintiff in establishing the identity of the actual imports. However, because “tileboard” remains defined at this stage only in the most general terms, see infra at 20-34, i.e., “tileboard” includes any product of a density greater than 0.8 g/cm 3 used on walls, ceilings, or other parts of buildings , and both parties agree to the facts at this level of generality, summary judgment on the basis of Witex’s failure to meet its burden is premature at this time. The Court does note that once a definition is established, Witex will bear the burden of proof concerning the identity of its merchandise. For example, if it is established that “tileboard” must look like ceramic tile, and if Witex does not know which entries, if any, have this pattern, Witex will fail to meet its burden of proof. Despite the re quiremen ts of USCIT Rule 56, the parties have agreedt o few relevant facts. The panels at issue consist of a fi berbo ardcore with a density 0.891 g/cm 3 , Mem. from Nick Zerebecki, Mannington Mills, to Hao Chen, Mannington Mill s, Wit ex Lamina te Pr oducts , Ex. 2 to Pl.’s Mem (February 14, 1997) (“Mannington Mem.”), Def.’s Statement Addit io nal Material Facts (“Def.’s Statement”) at para. 3, and are tongue-a nd-gro oved along their edges and ends. 5 Def.’s Resp. Pl.’s Statement Material Facts at para 1. The tops of the panels are coated with mela mi ne and aluminumoxide, Mannington Mem. at 1 , Def.’s Statement at para. 3,Consol. Court No. 98-00360 Page 5

6 By using the term “use”, the Court is not implying that this is the only, or principle, use of the panels. Rather, the Court is merely recognizing that both parties agree that the panels are used on floors.

7 The Government asks the Court not to consider this issue because Witex did not specifically brief it in this case. Def.’s Reply at 12, Def.’s Resps. Ct.’s Questions Prior Oral Argument on the Parties’ Cross-Mot. for Summ. J. at 9. As the Government maintains: “Taken literally, a mandate to ‘find the correct result’ would require a court to conduct its own analysis of imported merchandise and scour the tariff statute to ensure that all possible provisions have been considered. Indeed, this appears to be precisely what Witex is suggesting.” Def.’s Reply at 12. Despite this, the Government also asks the Court to find that Boen Hardwood Flooring, Inc. v. United States , 357 F.3d 1262 andthe panels may be used on floors. 6 Pl.’s Mem. at 7 para. 19, Def.’s Statement at para. 1.

SUMMARY OF ARGUMENTS Wite x argu es that its flooring panels are not fiberboard p roducts and therefore cannot be classified under heading4411 , HTSUS. More s pecifi cally, Witex argues that fiberboard, by definition, is limited to unfinished produ cts , whereas its merchandise is finis hed. Pl.’ s Mem. at 11-14, Pl.’s Resp. at 4, Pl.’s Reply in Supp. of Mot. fo r Summ. J. (“Pl.’s Reply”) at 4. Alternatively, Witex asks the Court to consider the arguments made in a companion case, Faus Group, Inc. v. United States , slip op. 04- 143 (CIT Nov. 15, 2004), that the flooring p anels ar e properly classifiedunder heading 4418, HTSUS, covering“[b]uilders’ joinery andcarpentry of wood.” P l.’s Mem. at 25, Pl.’s Resp. at 19-20, Pl.’s Reply at 14-15. 7Consol. Court No. 98-00360 Page 6

(Fed. Cir. 2004) controls this case insofar as it concerns the potential classification of the merchandise under heading 4418, HTSUS. See, e.g. , Def.’s Mem. Supp. Cross-Motion Summ. J. (“Def.’s Mem.”) at 29. However, Boen Hardwood Flooring did not decide this issue, and heading 4418, HTSUS, was never argued by the parties, at least at the trial court level. The Government cannot have it both ways. If the merchandise is properly classified in heading 4411, HTSUS, Witex claims that it should be classifi edunder subheading 4411.19.30, HTSUS, which covers “[t]ileboard which has b een continuouslyworked along any of its edges and is dedicated for use in the construction of walls, ceilings or other parts of buildings.” Pl.’s Mem. at 14-24, Pl.’s Resp. at 6-18, Pl .’s Replyat 1-13. Witex maintains that Custom s unduly restricted the scope of subheading4411.19.30, HTSUS, by requiring that the panels be used

on walls. Pl.’s Mem. at 16, Pl.’s Resp. at 7, Pl.’s Reply at 2-3. The Governme nt a rgues that the merchandise is classifiable under heading 4411, HTSUS. The Government asserts that Witex relies

on a commercial definition of fiberboard usedin Europe to support its contention that fiberboard can only be unfinished. Def.’s Mem. at 25-26. That Euro pe an commercial definition, the Government contends, is irrelevant to the classification of products under the HTSUS. Id. In defining “tileboard,” the Government points to the legisl ative history of the “tileboard” provision which includes a letter from J.J. Barker Co. to the Trade Policy Staff Committ ee seekinga provision for its imports. Def.’s Mem. at 11-13, 18, 20, Def.’s Reply at 8. According to the Government, J.J. Barker Co. hadConsol. Court No. 98-00360 Page 7

been importing its “tileboa rd ” product duty free under the Tariff Schedule of the United States ( “T SUS”), but was facing a 6% ad valoremduty with the transition to the HTSUS. Def.’s Mem. at 11- 13; see also subheading 4411.19.40, HTSUS. Therefore, in order to

ensure that J.J. Barker’s “tileboard” imports did no t face a n increase in duty, the “tileboard” provision was added. Id. As the Government argues, because Witex’s merchandise is no t similar to J.J. Barker’s “tileboard,” Witex’s merchandise cannot be considered “tileboard” within the meaning of subheading 4411.19.30, HTSUS. Id. The Government further argues that based on a dictionary definition of “tileboard,” Def.’s Mem. at 16, 18, evidence from in dustr y practice, Def.’s Mem. 17, 22, Def. ’s Replyat 8-9, and the Government’s expert witness, Def.’s Mem. at 21, Witex’s panels are not “tileboard ” because “tileboard: (i) is not laminated, (ii) is usuallyembossed with a pattern, and (iii) is coated with an epoxy

or other [liquid] finish to resemble ceramic tile,” Def.’s Mem. at 20-21 (brackets ar ound “liquid” in original), (iv) is waterresistant, Def.’s Mem. at 17, 19-20, and (v) is only used on walls, Def.’s Mem. at 21. Accordingly, the Government claims that because Witex’s merchandis e is lam inated, is not embossed, does not look like ceramic tile, Def.’s Mem. at 20, is not water-resistant, Def.’s Mem. at 19-20, and is used as flooring, not wallboard, Def.’s Mem. 14 n.14, 22, it cannot be “tileboard.” Therefore, the Governme nt argues, Witex’ s pr oduct is excluded from subheading 4411.19.30, HTSUS, rendering it classifiable under 4411.19.40, HTSUS, coveringConsol. Court No. 98-00360 Page 8

8 Witex occasionally appears to suggest that Customs Rulings are reviewed under an abuse of discretion standard. See, e.g. , Pl.’s Resp. at 9-10, Pl.’s Reply at 4-5. In classification cases, Witex must show that its product is “tileboard” under some definition of “tileboard.” Even if the Government’s definition is wrong, that does not by itself make a product “tileboard,” nor does it resolve the case, for then the Court must define the term “tileboard.” See Jarvis Clark Co. v. United States , 733 F.2d 873, 878 (Fed. Cir. 1984). “[o]ther” forms of fiberboard with a density of greater than 0.8 g/cm 3 which are surfaced coated by more than oil.

STANDARD OF REVIEW “The proper scope andmeaning of a tariff classification term is a question of law. . . while determining whether the goods at issue fall within a particular tariff termas properly construed is

a question of fact.” Franklin v. United States , 289 F.3d 753, 757 (Fed. Cir. 2002) (citations omitted). A Customs’ classifica ti on rulingis subject to de novo review 8 as to the meaning of the tariff provision, pursuant to 28 U.S.C. § 2640, but may be accorded a “res pe ct proportional to its ‘power to persuade.’” United States

v. Mead , 533 U.S. 218, 235 (2001) (quoting Skidmore v. Swift & Co. , 323 U.S. 134, 140 (1944))

. Both parties have moved for summary judgment pursuant to USCIT Rule 56. Summa ry judgm ent is only 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 entitledConsol. Court No. 98-00360 Page 9

to judgment as a matter of law.” USCIT R. 56(c)(emphasis added). Material issues only arise concerning “facts that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby , Inc. , 477 U.S. 242, 249 (1986). Consequently, i n classifi ca tion cases, genuine issues of material fact only arise when there is a dispute over the use, characteristics, or properties of the merchandise being classified, Brother Int’l Corp. v. United States , 26 CIT ___, ___, 248 F. Supp. 2d 1224, 1226 (2002), or where

comm ercial m eaning is in question. Russell Stadelman & Co. v. UnitedStates , 242 F.3d 104 4, 1048 (Fed. Cir. 2001). For the

reasons set forth below, summaryjudgment for either party at this point is not warranted.

DISCUSSION “The proper classification of merchandise entering the United States is directed bythe General Rules of Interpretation (‘GRIs’) of the HTSUS and the Add ition al United States Rules of Inte rpret ation.” Orlando Food Corp. v. United States , 140 F.3d 1437, 1439 (Fed. Cir . 1998). The HTSUS is organized by headings settingforth general categories of merchandise; below each heading

are listed subheadings (and then further subdivisions) t hat more specificallydescribe products within each heading. Id. According to the GRIs, a Court must choose the most appropriate heading, and then, “[o]nlyafter determining that a product is classifiable under the heading sh ould the c ourt look to the subheadings to find theCourt No. 98-00360 Page 10

correct classification for th e merchandise.” Id. at 1440 (citing GRI 1, 6, HTSUS). Once the Court chooses the pr oper heading, the Court is limited to ch oosing a subheading only from within the proper heading, i.e., the subheadings appearing under other headings become irrelevan t for the classification of the merchandise at issue. Id. Because there is a dispute as to the proper heading, the Court will first determine wh ether the flooring panels are properly cl assifiedunder heading 4411, HTSUS. After finding t hat th e merchandise is properly classifiable under heading 4411, HTSUS, the Court will construe subheading 4411.19.30, HTSUS, ul ti mately concluding that material issues remain to be resolved.

I. Choosing the Proper Heading A. Meaning of Fiberboard As required by GRI 1, HTSUS, “classification shall be determinedaccording to the terms of the headings and any relative section or chapter notes . . . .” H ea ding 4411, HTSUS, covers “[f]ibe rb oardof wood or other ligneous materials, whether or not bondedwith resins or other or ga nic substances.” Both parties concede that the merchandise is made with a fiberboard core. Pl.’s Statement Undisputed Facts Supp. P l.’s Mot. Summ. J. at para. 2, Def.’s Statement at para. 1. Fiberboardis defined as “[a] general termthat refer s to anyof various panel products such as particleboard, hardboard, chipboard, or other type formed by bondingCourt No. 98-00360 Page 11

9 The Court does not know what is meant by “unfinished laminate,” i.e., whether “unfinished laminate” means that fiberboard must undergo further operations to become a finished laminate flooring panel, or whether it means that the fiberboard has not been surface coated with a finish. However, this ambiguity is immaterial for the reasons set forth below. woodfibers by heat and pressure.” Terms of the Trade 130 (4th ed. 2000); see also Webster’s II New Riverside University Dictionary474 (1988) (“[a] building material made of plant fibers, as wood, bonded together andcompressed into rigid sheets.”). These definitions do not define “fiberboard” by any element of its finish. Witex contends that Cust om s wrongfully classified its merchandise under heading 4411, HTSUS, because fiberboard includes onlyunfinishedmerchandise whereas Witex’s merchandise is finished. To support is contention, Witex introduces a lett er from the European Producers of La minat e Flooring (“EPLF”) stating that “[f]roman industry pe rs pective . . . [l]aminate panelling, which is widely used in the industryfor both wall and floor applications,

ca nnot be fibreboard because, by definition, fibreboard is a component of some types of laminate and, at most, can be considered unfinishedlaminate.” Letter from Peter H. Meyer, Managing Director of the European Producers of Laminate Flooring, to Bruce A itken , Esq., Ex. 12 to Pl.’s Mem. at 12 (Feb. 28, 2002) (“EPLF Letter”). 9 Witex also cites the Deposition of Paul Garetto, a National Import Specialist, as saying: “If you asked for fib erboa rd, if you go to

a lumberyar d, probably they would direct you to a 4 by 8 sheet o f fi berbo ard, probably unfinished.” Dep. Paul Garetto, Ex. 14 toCourt No. 98-00360 Page 12

10 Witex suggests that Paul Garetto’s testimony represents the “common meaning” of “fiberboard.” Pl.’s Mem. at 13-14. Because the determination of common meaning is a question of law, Schott Optical Glass, Inc. v. United States , 67 C.C.P.A. 32, 34, 612 F.2d 1283, 1285 (1979), and the common meaning of a word should be readily obtainable to all persons who do not have specialized knowledge, testimony regarding a common meaning is considered only advisory. See Toyota Motor Sales, U.S.A., Inc. v. United States , 7 CIT 178, 183-84, 585 F. Supp. 649, 654 (1984). Pl.’s Mem. at 118 (Jan. 15. 2004). 10 According to Witex’s logic, because “fiberboard” is b y definition unfinished, and because Witex’s product is finished, the merchandise cannot be “fiberboard.” Pl.’s Mem. at 12-14. Essentially, what Witex’s argument boils down to is that there is a co mmercial meaning of “fiberboard” which precludes the classification of its merchandise under heading 4411, HTSUS. Witex’s argument is unpersuasive for two reasons: (1) Witex has failed to establish a commercial meaning for the proposition it seek s; and (2) even if Witex were correct as to the meaning of “fiberboard,” Witex reads the word “fiberboard” out of context with the rest of the tariff provision. First, Witex fails to esta bl ish a commercial meaning for its merchandise. Witex is correct in claiming that an est ab lished commercial mea ning p revails over a common meaning unless contrary to Congressional intent. See Maddock v. Magone , 152 U.S. 368, 371 (1894) (citing Cadwalader v. Zeh , 151 U.S. 171, 176 (1893)). However, in order to establish a commercia l meaning, the party invoking a commercial meaning has the burden of proving that a term has a commercial meaning that is “definite, uniform, and gen era lCourt No. 98-00360 Page 13

11 Witex also cites the European Committee for Standardization’s definition of fiberboard: “panel material with a nominal thickness of 1.5 mm or greater, manufactured from lignocellulosic fibers with application of heat and/or pressure.” Pl.’s Mem. at 13. If this definition were relevant, it would still not support Witex’s contention because it does not impose any requirement that fiberboard be “unfinished.” throughout the trade,” Carl Zeiss, Inc. v. United States , 195 F.3d 1375, 1379 (Fed. Cir. 1999) , and that this “definite, uniform, and general meaning” is used in the United States’ trade and commerce, Two Hundred Chests of Tea v. Smith , 22 U.S. (9 Whe at ) 430, 438 (1824) (“Whether a particular article we re designated by one name

or another, in the country of its origin . . . was of no importance in the view of the legislature.”), Wing Coffee Co., Ltd. v. United States , 53 Cust. Ct. 60, 63 (1 964). A ccordingly, “ in considering the commercial designation of a tariff term, onlycommercial use of tha t ter m in the United States is relevant.” Russell Stadelman & Co. v. United States , 242 F.3d 1044, 1049 (Fed. Cir. 2001) (emphasis added). The evi dence pr offered by Witex fails to meet the burden of proof for establishing a commercial meaning in this case. Aletter froma single European trade association, that r ep resents only producers of laminate flooring, 11 does not provi de any e vidence of

a defi ni te, general, and uniform meaning of a term as used in the UnitedStates. Nor is Witex’s claim supported bythe Deposition of Paul Garretto. The Deposition of Paul Garretto merely establishes that if a person asked for fib erboard at a lumberyard, theyCourt No. 98-00360 Page 14

12 Just because the Court rejects the notion that fiberboard has a commercial meaning in the manner suggested by Witex does not mean that other terms under heading 4411, HTSUS, do not have commercial meanings. See infra at 24-32.

13 Chapter Note 4 to Chapter 44, HTSUS, mandates that there is a point where the product has been sufficiently advanced such that it no longer falls within the eo nomine designation. “probably” would be directe d to unfinished fiberboard. This does not constitute evidence that if fiberbo ard is finished it is no longer fiberboard. Because Witex has failed to adduce any probative evidence for a “definite, uniform, and general” commercial meaning for “fiberboard,” the Court is bound by the common m eaning o f fiberboard as that term appears in heading 4411, HTSUS. 12 Secondly, Witex’s reading of heading 4411, HTSUS, is belied by the language of the heading, chapter notes, and the Exp lanat ory Notes. Heading 4411, HTSUS, is an eo nomine provisi on as it “describes a commodity by a specific name.” Am. Hardboard Ass’n v. UnitedStates , 12 CIT 714, 715 (19 88); see also JVC Co. of Am. v. UnitedStates , 234 F.3d 1348, 1352 (Fed. Cir . 2000). Because eo nomine “provision[s] include[] all forms of the namedarticle unless limitedby [their] t er ms,” Am. Hardboard , “[a]n improvement in merchandise provided for eo nomine doe s not re move it from classi fication under the eo nomine designation.” Arthur J. Humphr eys, Inc. v. United States , 973 F.2d 1554, 1556 (199 2) . Consequently, when an eo nom ine provision is used as it is in heading4411, HTSUS, the tariff term implicitlymeans fiberboard and products made from fiberboard. 13 Theref ore, e ven if a piece ofCourt No. 98-00360 Page 15

However, the Court rejected in Faus Group, Inc. v. United States , slip op. 04-143 (CIT Nov. 15, 2004) the argument that surface covering and tongue-and-grooving fiberboard were sufficient to remove a product from heading 4411, HTSUS. This reading is also consistent with the North American Laminate Flooring Association’s definition of fiberboard which recognizes that “fiberboard” is a “core material.” See North American Laminate Flooring Association, Laminate Flooring , Ex. 6 to Pl.’s Mem. at 2.

14 For a thorough discussion of Note 4 to Chapter 44, see Faus Group, Inc. v. United States , slip op. 04-143 (CIT Nov. 15, 2004). fiberboardhas been further worked beyond its ra w form, it still remains classifiable under heading 4411, HTSUS. The drafters of the HTSUS, a nd Con gress, recognized that heading4411, HTSUS, includes fiberboard products th at have been further worked through the inclusion o f Chapte r Note 4 to Chapter 4 4 which provides that “[p]roducts of heading 4410, 4411, or 441 2 maybe worked to form the shapes provided for in respect of articles of heading 4409, curved, corru ga ted, perforated, cut or formed to shapes other than square or rectangular or submit ted to a ny other operation provided it does not give them the character of articles of other headings.” Chapter Note 4 to Chapter 44, HTSUS. 14 Chapter Note 4 admits that fiberboard products transformed beyond their raw character are nonetheless still classifiable under heading 4411, HTSUS, unless subjected to an operation, not amongthose enumerated, that gives the product the character of an article in ano the r heading. The Ex planatory Note to 44.11 further specifies that “[i]mp regnatin gor other agents may also be added during or afterCourt No. 98-00360 Page 16

manufacture of the boardto g ive an extra property, e.g., impermeabilityto water or resistance to rot, in sect attack, fire

or the spread of flame .” Harmonized Commodity Description and CodingSystem , Explanatory N ot e 44.11 (2nd ed. 1996) at 680 (“ExplanatoryNo te s” or “EN”); cf. Chapter 44, U.S. Note 1(c), H TSUS. Last, the subheadings under heading 4411, HTSUS, includ e products such as “tileboard,” subh eading 4411.19.30, HTSUS, and “[l]aminatedboards bonded in whole or in part, or impr egnat ed, with synthetic resins,” subheading 4411.29.20, HTSUS. Witex’s

rea di ng of heading 4411, HTSUS, to preclude classification of its laminatedpaneling therein, would render nugatory t he abo ve referencedprovisions, in violation of the well-established rule of statutoryconstruction that all parts of a statute should be given effect if possible. See Weinberger v. Hynson, Westcott & Dunning, Inc. , 412 U.S. 609, 633 (1973). Therefore, the text andExplanatory Notes demonstrate a clear C ongressi onal intent not to use the restrictive definition of “f ib erboard” advanced by Witex. Accordingly, even if Witex could prove its commercial meaning of “fiberboard,” t here is a clear indication that Congress did not intendWitex’s claimed commercial meaning. See Cadwalader v. Zeh , 151 U.S. 171, 176 (1894) (the “commercia l meanin g is to prevail, unless Congress has clearly manifested a contrary intention.”).

B. Other possible headingsCourt No. 98-00360 Page 17

Alternatively, Wi tex asks the Court to choose another approp ri ate heading, referencing the dispute before the Court in Faus Group, Inc. v. United S tates , sli p op. 04-143 (CIT Nov. 15, 2004), which deals with heading 4418, HTSUS, covering “[b]uilders’ joineryand carpentry of wood.” Pl.’s Me m. at 25. In Faus Group , slip op. 04-143 (CIT Nov. 15, 2004), the Court found that nearly identical laminated flooringpanels were properly classifiable under heading44 11, HTSU S, and not under heading 4418, HTSUS. Because Witex does not present any arguments o r evidence that would distinguish its merchandise from the merchandise in Faus Group , the Court deems that Witex’s flooring panels are likewise classifiable under heading 4411, HTSUS, for the reasons set forth in Faus Group . C. Heading 4411, HTSUS, is the proper heading Because Witex’s merchandise is classifiable under heading 4411, HTSUS, and there are no other appropriate headings under which its merchandise wouldfall, heading 4411, HTSUS, is the proper heading for Witex’s flooring panels.

II. Choosing the Proper Subheading Fin dingthat Witex’s flooring panels are properly classified under heading 4411, HTSUS, the Court next addresses und er wh ich subheadingthe merchandise falls. Both parties agree that, if the merchandise falls under heading 4411, HTSUS, the merchandise eitherCourt No. 98-00360 Page 18

15 There are three categories of subheadings under heading 4411, HTSUS, differentiating products on the basis of the density of the fiberboard product: (1) subheadings 4411.11 - 4411.19, HTSUS, covering fiberboard products with densities of greater than 0.8 g/cm 3 ; (2) subheadings 4411.21 - 4411.29, HTSUS, covering fiberboard products with densities exceeding 0.5 g/cm 3 but not exceeding 0.8 g/cm 3 and; (3) subheadings 4411.31 - 4411.99, HTSUS, covering fiberboard with density of less than 0.5 g/cm 3 . Because Witex’s flooring panels have a density of greater than 0.8 g/cm 3 , they fall within the first category of goods. This category is further divided as to whether the merchandise has been “mechanically worked or surface covered” where surface covered “means that one or more exterior surfaces of a product have been . . . overlaid with paper . . . .” Chapter 44, U.S. Note 1(c), HTSUS. Witex’s flooring panels are overlaid with a color photograph of wood and are therefore “surface covered.” This subdivision is further subdivided for products that have not been “surface covered (except for oil treatment)” which does not include Witex’s merchandise because of the paper overlay.

16 Witex appears confused by what is meant by a “basket provision.” See Pl.’s Mem. at 11. Classifying a product in a “basket provision” does not mean that a product is “unfinished.” A “basket provision” is simply used to classify products not classifiable elsewhere. In fact, to be classified under subheading 4411.19.40, HTSUS, a product must be mechanically worked and surface coated by more than just oil which makes products classifiable there far from “unfinished.” falls under subheading 4411.19.30, HTSUS, for “[t]ileboardwhich has been continuously worked along any of its edges and is dedicatedfor

use in the construction of walls, ceilings, or othe r parts of building,” or subheading 4411.19.40, covering all “other” fiberboard products with densities greater than 0.8 g/cm 3 which are surface coveredby more than an oil treatment. 15 Be cause subheading 4411.19.40, HTSUS, is a basket provi si on, i.e., covering all products not classifiable elsewhere, 16 the flooring panels are only classifiable in subheading 4411.19.40, HTSUS, if they are no t cla ss ifiable under subheading 4411.19.30, HTSUS. See Rollerblade,Court No. 98-00360 Page 19

17 The Court agrees that “other parts of buildings” may include floors. However, because “other parts of buildings” may include floors, it does not necessarily follow that “other parts of buildings” must include floors. Rather, the “other parts of buildings” modifies “tileboard.” In other words, this language means “other parts of buildings” where “tileboard” is used – if “tileboard” is not used on floors, then floors are not another part of a building where “tileboard” is used. Because ejusdem generis is only applicable where legislative intent is unclear, see 2A Norman J. Singer, Statutes and Statutory Construction § 47.18 at 287-88 (6th ed. 2000), if the Government can establish that the clear meaning of “tileboard” requires principle use on walls, then “other parts of buildings” cannot be read to enlarge the definition of “tileboard.” As a brief aside, the phrase Inc. v. United States , 282 F.3d 1349, 1354 (Fed. Cir. 2002) (citing EMIndus., Inc. v. United State s , 22 CIT 156, 165, 999 F. Supp. 1473, 1480 (1998)). Consequently, this case hinges on the meaning of subheading 4411.19.30, HTSUS. Subhea di ng4411.19.30, HTSUS, covers “[t]ileboard which has been continuously worked along any of its edges andis dedicated for

u se in the construction of walls, ceilings, or other parts o f buildings. ” Subhe ading 4411.19.30, HTSUS. The language of the subheadingrequires a product to exhibit three features: (1) it must be “tileboard”; (2) which has been continuously worked alongany of its edge s; and (3) is dedicated for use in the construction o f walls, ceilings or other parts of buildin gs. Bo th parties essentiallyagree that Witex’s flooring panels satisfy the last two prongs of the te st: the panels are tongue-and-grooved along their edges, satisfying the second pron g; moreover, the panels are used

on “floors” which maybe included within the meaning of “other parts of buildings.” 17 However, the parties do not agree on the meani n gCourt No. 98-00360 Page 20

“wall, ceilings and other parts of buildings” was employed by the TSUS in defining “building boards.” See Headnote 1(e) of Part 3 of Schedule 2 TSUS (1987). Neither of the two cases evaluating this term, Am. Hardboard Ass'n v. United States , 12 CIT 714 (1988), F.W. Myers & Co., Inc. v. United States , 59 Cust. Ct. 427, 275 F. Supp. 811 (1967), appear to lend assistance to the inquiry here. of the word “tileboard.” Consequently, the Court must def ine “tileboard” t o dete rmine whether the flooring panels can be classified under subheading 4411.19.30, HTSUS.

A. The Legislative History “The first step in properlyconstruing a tariff classification termis to determine whether Congress clearly definedthat term in either the HTSUS or its legislative history. ” Russell Stadelman & Co. v. United States , 242 F.3d1044, 1048 (Fed. Cir. 2001) (emphasis added). “Tileboard” is not definedin the HTSUS; however, both the Customs’ Ruling, Headquarters Ruling (“ HQ”) 960084 ((December 10, 1997), and the Government in this case have sugg ested th at “tile board” is defined by the legislative history of subheading 4411.19.30, HTSUS. In 1989, as part of an international effort to adopt a common nomenclature across nations, see Carl Zeiss, Inc. v. UnitedStates , 195 F.3d 1375, 1378 n.1 (Fed. Cir. 1999), the United States agreed to adopt the headings and subheadings ( up to the six digit level) establishedunder the international Ha rm onized Schedule , but reservedthe right to create fur ther sub divisions beyond the sixCourt No. 98-00360 Page 21

18 The “tileboard” classification is beyond the six-digit level, and each nation is allowed to create its own subdivisions beyond the six-digit level. How Europe classifies these goods is therefore irrelevant when considering how the United States should classify goods at this level unless a party can show that the creation of the U.S. provision was influenced by the European nomenclature.

19 The TPSC was responsible for converting the TSUS to the HTSUS. The TPSC solicited public comment for the express purpose of “[a]void[ing], to the extent practicable and consonant with sound nomenclature principles, changes in rates of duty on individual products.” Public Hearings on the Harmonized Commodity Description and Coding System , 48 Fed. Reg. 34,822, 34,823 (USTR Aug. 1, 1982). digit level, see International Conv ention on the Harmonized CommodityDescriptio n and Coding System Article 3(3) found at http://www.wcoomd.org/ie/En/Conventions/conventions.html. 18 Before the transition to the HTSUS became fullyeffective, J.J. Barker, Co. (“J.J. Barker”), a n importer of “tileboard,” alerted the Trade PolicyStaff Committee (“TPSC”) 19 that altho ug h its imports of paneling were duty free under the TSUS, under the pr oposed H TSUS J.J. Barke r’ s product would face a 6% ad valoremduty rate. See Letter from S.C. Gauthier to Chr istopher P. Marcich, Director of Tariff Affairs, Ex . D to D ef.’s Mem. (Jan. 8, 1988) (“Barker Letter”). Accordingto the Government, the TPSC responded by adding subheading4411.19.30, HTS US , in order to maintain duty free treatment for J. J. Barker’s imports. Def.’s Mem. at 11-14. According to the Gov er nment, because J.J. Barker’s product was referredto as “tileboard,” the C ourt sho uld look to that product

as a model for what constitutes “tileboard” within t he meani ng ofCourt No. 98-00360 Page 22

subheading4411.19.30, HTSUS. See Def.’s Mem. at 12-13. The Government, gleaning its information froma product brochure, Easy Living – With Barker , Ex. E to Def.’s Mem., describes “tileboard”

as “completely water resistant decorative wall panels made of nonlaminatedhardboard with a density of 1.15 g/cm 3 with their surface painted, coated and grooved to imitate individual ceramic tiles .” Def.’s Mem. at 12. The letter from J.J. Barker citedby the Government, however, is of dubious probative value an d does not provide a definite or express definition of “tileboard.” As the Supreme Court has noted: Legislative history is problematic even when the attempt is to draw inferences from the int en t of duly appointed committees of the Congress. It becomes far more so when we consult sources still more steps removed from the full Congress and speculate upon the significance of the fact that a certain in te rest group sponsored or opposed particular legi sl ation. We ought not attribute to Congress an official purpose based on the mot ives of a particular group that lobbied for or against a certain proposal – even assuming the precise intent of the group can be determined . . . .

Cir cuit Cit y Stores, Inc. v. Adams , 532 U.S. 105, 120 (2001) (citations omitted) . Similarly, the court in United St ates v. Paramount Publix Co rp . , 22 C.C.P.A. 452, 460 (1934) found that committee testimony of interestedparties was not “controlling since the enactment of the provision in the language before us might have been wit h an int ent wholly different from that indicated by the witnesses.” This problem is particularly acute here where there is

no indication of howthe TPSC, or Congress, defined “tileboard” inCourt No. 98-00360 Page 23

20 In its letter to the TPSC, J.J. Barker only described its product as “finished hardboard” of “high quality, high priced ‘tileboard’ bath and kitchen panels.” Barker Letter, Ex. D to Def.’s Mem. at 1. (Note that: (a) the letter describes the merchandise not just as “tileboard,” but a certain type of “tileboard” – i.e., “high quality, high priced ‘tileboard’” and (b) J.J. Barker also felt it was necessary to mention that its product was used in the bath and kitchen, an unnecessary defining feature if the only use of “tileboard” was in the bath and kitchen.) J.J. Barker appended a classification ruling from 1971 that described the product as “hardboard wall panels which are coated with melamine” which were bull-nosed, or rounded, along their vertical edges. Id. at 4; cf . with the Government’s description, Def.’s Mem. at 12 (J.J. Barker’s product was“completely water resistant decorative wall panels made of nonlaminated hardboard with a density of 1.15 g/cm 3 with their surface painted, coated and grooved to imitate individual ceramic tiles.”). It is not clear upon which, if any, of these descriptions, the TPSC based its definition of “tileboard.” Moreover, even if the Court were to adopt any of these descriptions, it would be impossible to determine what are the essential characteristics of “tileboard” on the basis of one product. For example, if a product matched the Government’s proffered description, but it was only 1.1 g/cm 3 in density, or if the product imitated marble rather than ceramic tiles, would it still be “tileboard”? Nonetheless, this evidence is not completely valueless. For instance, if Customs sought to classify products in a way that would exclude J.J. Barker’s product from subheading 4411.19.30, HTSUS, this evidence may be probative.

21 When the legislative history provides a clear or express definition of a tariff term, the Court will rely on that definition. For example, courts have used definitions in reports prepared in conjunction with the drafting of the tariff provision, see e.g. , Arthur J. Humphreys, Inc. v. United States , 973 F.2d 1554, 1557 (Fed. Cir. 1992), or judicially established definitions of the same term used in an earlier version of the tariff schedule, see e.g. , Intercontinental Marble Corp. v. United States , 381 F.3d 1169, 1175-76 (Fed. Cir. 2004) (using the commercial definition of marble as established under the TSUS when interpreting that term in the HTSUS). However, absent a relati on to J. J. Barker’s product. 20 Therefore, this history does not provide the Court with a definite or express definit ion o f “tileboard.” 21Court No. 98-00360 Page 24

clear or express definition provided by the legislative history, definitions gleaned from the legislative history are merely probative and are used to bolster or support a definition derived from dictionaries, lexicons, scientific authorities, and other such reliable sources. Cf. , Anhydrides & Chems., Inc. v. United States , 130 F.3d 1481 (Fed. Cir. 1997).

22 The Court has been able to locate certain dictionary definitions of “tileboard.” See Webster’s Third New International Dictionary2393 (1986) (“1: a board used in interior finishing and made from a large sheet of any of various materials having a decorative coating simulating a tiled surface. 2: a thin large square piece (as of wood) often with beveled edges that is fitted together with other like pieces to cover ceilings or walls.”) ; McGraw-Hill Dictionary of Scientific and Technical Terms 2151 (6th ed. 2003) (“[a] type of wallboard used for interior finishing in which the outer surface is a layer of hard glossy material, usually simulating tile.”); Terms of the Trade 342 (4th ed. 2000) (“[a] hardboard panel that has been embossed with a pattern and then coated with epoxy. The resulting product is designed to look like ceramic tile, for use in kitchens, bathrooms, etc.”); Dictionary of Architecture and Conseq uently, because the legislative history is of a nondispositive nature, this case cannot be resolv edby looking first to the legislative history f or a defin ition. This does not mean that the Court deems the legislative history irrelevant for future

use to bolster a definition; it simply means that at this juncture, the instant case cannot be resolved by recourse to the legislative history.

B. Commercial Meaning When the HTSUS or legislative history do not define a term, the Court lo oks to t he term’s common or commercial meaning. Both parties have suggested that there is a commercial meani ng for t he term“tileboard.” 22 Because a commercial designation, once proven,Court No. 98-00360 Page 25

Construction 939 (3rd ed. 2000)(“1. A wallboard used for interior finishing; usually a base sheet material overlaid with a hard, glossy decorative facing to simulate tile. 2. Square or rectangular boards, usually made of compressed wood or vegetable fibers, often with beveled interlocking edges, used for ceiling or wall covering.”) ; Reed Construction Data at http://www.rsmeans.com/dictionary/index.asp?s=tileboard)(“(1) A wallboard with a factory-applied facing which is hard, glossy, and decorated to simulate tile. (2) A square or rectangular board of compressed wood or vegetable fibers, used for ceiling or wall facings.”) (access is free upon registration, which is also free). takes precedence over a common meaning, see Boen Hardwood Flooring, Inc. v. United States , 357 F.3d 1262, 1265 (Fed. Cir. 2004), it is appropriate to determine if either p arty has established, or can establish, a commer cial mea ning. Cf . Cadwalader v. Zeh , 151 U.S. 171, 176 (1893) (“it is only when no c ommer cial meaning is called fo r or proved, that the common meaning of the words is to be adopted”). Proof of a commercial meaning is a matter of fact, not law. Russell Stadelman & Co. v. United States , 242 F.3d1044, 1048 (Fed. Cir. 2001); but cf . Boen , 357 F.3d at 1265. As this Cour t has long maintained, the rule of commercial des ignation is “intended to apply to cases where the trad e designation is so universal and well understoodthat the Congress, andall the trade, are supposed to have been fully acquainted with the practice at the time the law was enacted.” Jas. Akeroyd & Co.

v. United States , 15 Ct. Cust. App. 440, 443 (1928). Accordingly, to establish a comme rcial me aning, a party must prove that “tileboard” has a commercial meaning in the trade “which is general (extendingover the entire country), definite (certain ofCourt No. 98-00360 Page 26

23 No evidence has been submitted of this nature. Testimony by persons who buy at wholesale, such as buyers for large home improvement stores, would likely produce greatly illuminating evidence of commercial meaning.

24 Witex submits a letter from C. Curtis Peterson (“Peterson”), the Executive Vice President of the American Hardboard Association (“AHA”), defining “tileboard” in such a way understanding), and uniform (the same everywhere in the country).” Rohm& Haas Co. v. United States , 5 CIT 218, 226, 568 F. Supp. 751, 757 (1983) (citations omitted). “The commercial meaning of tariff terms must be prove d by persons engaged in buying and selling the merchand ise at w holesale in the United States, or by persons who know, by their own experience or of their own knowledge, the meaning of the designation applied to the merchandise by those who buy and sell it at wholesale.” 23 Rice Millers’ Ass’n, Am. M frs. v. United States , 15 Ct. Cust. App. 355, 360 (1928). Moreover, mere negative inference that a product is excluded froma commercial designation is insufficient; rather, a partymust offer positive evidence of the actual meaning of the commercial designation. United States v. Fung C hongCo. , 34 C.C.P.A. 40, 44 (1946); Carl-Zeiss, Inc. v . Unite d States , 22 CIT 606, 610-11, 16 F. Supp. 2d 1097, 1101 (1999). Last, minus a clear statement of commer cial pra ctice, Boen , 357 F.3d at 1265, test im onyby witnesses is an indispensable tool in establishinga commercial meaning. See, e.g. , Passaic Worsted Co.

v. United States , 17 C.C.P.A. 459, 461-62 (1930); Rice Millers’ , 15 Ct. Cust. App. at 360. Both parties’ evidence fails to meet these standards. 24Court No. 98-00360 Page 27

as to embrace Witex’s product. Letter from C. Curtis Peterson to Witex USA, Inc, Ex. 10 to Pl.’s Mem. at 4-5 (Sept. 3 1997)(“Peterson Letter”). However, the Government has argued that this letter is susceptible to two meanings, see Def.’s Mem. at 16, and it appears that Witex never sent a sample of its merchandise for evaluation in garnering this opinion. Witex also cites a letter from the EPLF. See, e.g. , Pl.’s Mem. at 5. First, for the reasons stated above, the EPLF does not represent United States commercial practice. See Russell Stadelman & Co. v. United States , 242 F.3d 1044, 1049 (Fed. Cir. 2002). Second, the EPLF’s letter works against Witex rather than for it. The letter states: “‘Tileboard’ is considered in the industry to be backing for ceramic tiles.” EPLF Letter, Ex. 12 to Pl.’s Mem. Note, the letter does not say “the simulation of ceramic tiles”, rather it says “backing” for ceramic tiles. There is no indication from either party that Witex’s merchandise is used in conjunction with ceramic tiles; even if simulating ceramic tiles were sufficient, “tileboard” would most likely not cover the simulation of wood. The Government’s evidence fairs no better. The Court notes the most relevant of the Government’s submissions. (1) The Government alleges that “the Lowes Home Improvement Center in Brooklyn, New York, displays products labeled as ‘tileboard,’ such as [a physical sample the Government provided the Court], in its ‘decorative wall paneling’ section while laminated flooring is located in the ‘flooring’ section.” Def.’s Mem. at 22; Def.’s Reply at 9 n.23. This is not corroborated by affidavit, deposition or other evidentiary material. See USCIT R. 56(e). (2) The Government submits pictures of Louisiana Pacific Graystone Tileboard, i.e., Louisiana Pacific Graystone Tileboard , Ex. B. to Def.’s Mem., without reference to who took them or where the pictures are from, e.g., a webpage URL or product brochure; these pictures cannot be considered as evidence. (3) The Government cites the Study Concerning the Tariff Classification of Imported Laminate Flooring Panels , a report prepared by F. Holbrook Platts (“Platts”) of Platts Laminate Technologies which should have been appended to that brief. Def.’s Mem. at 21. However, the Government has not provided the Court with a copy of that report, the credentials of Platts, or indicated upon what Platts bases his conclusion. (4) Of, and to the extent, the Government is attempting to incorporate Voluntary Product Standard 59-73 on “Prefinished Hardboard Paneling,” see Def.’s Mem. at 16-17, the Court notes that this Product Standard was withdrawn in 1980. See Status Report on Withdrawal of Voluntary Product Standards , 45 Fed. Reg. 55,250, 55,250-51 (Nat’l Bureau of Standards Aug. 19, 1980), American National Standards Institute, Prefinished Hardboard Paneling (1973) (with the word “withdrawn” stamped onCourt No. 98-00360 Page 28

its cover) (on file with the Court). Moreover, the product standard merely defines products by their finish thereby supporting the Peterson letter (not, necessarily, the Government’s position). See American National Standards Institute, Prefinished Hardboard Paneling (1973). (5) The Government’s citations to tileboard manufacturers’ web sites are not evidence of testimony by wholesalers. See e.g. , Def.’s Mem. at 17-18, 22. (6) The Government refers to the National Emissions Standards for Hazardous Air Pollutants for the Surface Coating Operations of Wood Building Products prepared by the Environmental Protection Agency (“EPA”). Def.’s Mem. at 22. If the Government submitted evidence that these regulations were promulgated on the basis of industry standards this evidence might be probative; however, the Government has failed to do so, rendering this evidence of low probative value. Cf . RSMC Inc. v. United States , 84 Cust. Ct. 96, 100 (1980). Moreover, without more information, the Court cannot ascertain whether the surface coating criteria used by the EPA is supportive of, or contradictory to, the American Hardboard Association’s definition of surface coating discussed infra at notes 25 and 26. (7) The Government notes that Witex has never marketed its product as “tileboard.” See, e.g. , Def.’s Resp. Ct.’s Questions Prior Oral Arguments Parties’ Cross-Motions Summ. J. at 5. Although evidence of marketing practice may be suggestive, it is not dispositive. See Rainin Instrument Co. v. United States , 27 CIT

, , 288 F. Supp. 2d 1360, 1366 (2003); cf. Carl Zeiss, Inc. v. United States , 195 F.3d 1375, 1380 (Fed. Cir. 1999). Moreover, this does not provide the reason for exclusion, i.e., to which part of the Government’s proposed five prong test this evidence lends credence. Ordinarily, upon the failure of a party, or parties, to establish a commercial designation, the Court will find that there is no commercial meaning and turn to the common me aning of the tariff term. However, it appears premature to entirelyreject the possibilitythat “tileboard” does have a commercial meaning in this

case. Rather, what “evidence” has been offered as t o commer cial meaninghas not been sufficien tl y developed to determine if there is a commercial meaning, and if ther e is, wh at exactly thatCourt No. 98-00360 Page 29

25 Custom’s initial Headquarters Ruling interpreting subheading 4411.19.30, HTSUS, relied on a commercial designation provided by the AHA. HQ 085913 at 2 (January 8, 1990) (citing the AHA’s definition of “tileboard” as: a “hard, durable, and water-resistant coating or finishing applied to fiberboard to give it a ceramic-like or marble-like look.”). Likewise, the Ruling in this case supported its conclusion by relying on the opinion of the AHA, albeit with a different definition. HQ 960084 at 4 (noting that tileboard and flooring are separate products). As noted above, Witex has submitted a letter from C. Curtis Peterson (“Peterson”), the Executive Vice President of the AHA, which offers yet another definition of “tileboard.” Peterson Letter, Ex. 10 to Pl.’s Mem. at 4 (“Tileboard is a melamine coated high density fiberboard panel product” and “[t]he defining characteristic of tileboard paneling is its ‘finish’” which Peterson defines by reference to the American National Standard (ANSI/AHA A135.5-1995) for Class I Finishes.). Fourth, the Government references the AHA Publication entitled “Tileboard Wall Paneling” that “explains that tileboard paneling is suitable for installation in any room in the home including kitchen and laundry, and that it has a hard durable surface that is highly resistant to stains and moisture when properly installed and maintained.” Def.’s Mem. at 16-17. The Government did not cite an exhibit number, but the Court found what appears to have been that to which the Government is referring as an Exhibit to the Amicus’ Brief. See Ex. A to Brief of Amicus Curiae Congoleum Corp. in Supp. of Pl.’s Motion for Summ. J. (“Brief of the Amicus”). Testimony by a representative of the AHA would help the Court determine if these definitions can be reconciled. commercial meaning is. First, both part ies agree that the American Hardboard Association (“AHA”) do es have a commercial designation for “tileboard.” In fact, at least two Customs Rulings have relied, at least in part, on the AHA’s commercial definition(s) of “tileboard.” HQ 960084 at 4; HQ 085913 at 2 (January 8, 1990). However, neither partyhas offered testimonial evide nce to this effect, and what evidence t he y have produced is confusing. 25 Because the sources citedby the parties do suggest that the AHAdoes have a commercialCourt No. 98-00360 Page 30

26 Both the Government, and Customs’ Ruling, reference the AHA Publication entitled “Tileboard Wall Paneling” for the proposition that: “tileboard paneling is suitable for installation in any room in the home including kitchen and laundry, and that it has a hard durable surface that is highly resistant to stains and moisture when properly installed and maintained.” Def.’s Mem. at 16-17; see also HQ 960084. This publication does include language to this effect, but also notes that “[h]ardboard tileboard paneling is covered by U.S. Department of Commerce Voluntary Product Standard PS 59, ‘Prefinished Hardboard Paneling,’ (ANSI A 135.5-1973) Class 1 Finish,” American Hardboard Association, Tileboard Wall Paneling , Ex. A to Amicus’ Brief at 4, which Witex’s product may satisfy, see Aff. of Danny Thomas, Ex. 10 to Pl.’s Mem. at 3 (asserting that Witex meets the ANSI A 135.5-1995 Standard). The meaning of this passage is far from unequivocal. If a product meets the ANSI A135.5-1973 finish specifications (which is presumably an earlier verison of the ANSI A 135.5-1995 specifications cited by Witex), does this make the tileboard suitable for application in bathrooms and kitchens, or are these independent requirements? The Government’s argument is a little difficult to understand because on the one hand the AHA requires that “tileboard” pass the ANSI A135.5-1973 Standard, which may include a test for humidity resistance, cf . Peterson Letter, Ex. 10 to Pl.’s Mem. at 4 (citing the ANSI A 135.5-1995 Standard which includes a test for “humidity resistance”), while on the other hand, the Government also alleges that tileboard must have greater properties for water resistance than those required by ANSI A 135.5-1973. This problem is made especially difficult because: (a) the Government uses multiple means of referring to water resistance such as “highly resistant to stains and moisture,” Def.’s Mem. at 16, or “complete resistance to moisture,” id. at 19; (b) frequently discusses water-resistance in terms of where a product is used, e.g., in bathrooms, Def.’s Mem. at 20; and (c) has nowhere defined the required level of water resistance necessary for a product to be considered “tileboard.” designation, testimony is r eq uired to determine to which, if any, of these definitions the AHA subscribes. 26 Second, evidence from indu stry practice, suggests that the industrymay define “tile board” differently from common sources. For example, the Terms of the Trade sp ecifies that “tileboard” is “[a] hardboard panel that has been embossed with a pattern and thenCourt No. 98-00360 Page 31

27 Note that this definition does not require products to be used on walls, and does not necessarily require the product to be water-resistant and to be non-laminated.

28 Evidence of this definition has not been submitted to the Court. However, the Court may take judicial notice of the logic and reasoning of Customs Rulings, cf . United States v. Mead , 533 U.S. 218, 235 (2001), especially when the Court is looking to displace a commercial meaning used by Customs with a different common meaning. The Court also notes that, as addressed in Note 25, this definition is only one variant of the possible AHA definitions, and is the only one that requires a particular appearance. Therefore, when giving the Government the benefit of the doubt that appearance matters, there is some tension between the commercial and common meaning. coatedwith epoxy. The resulting product is designed to look like ceramic tile, for use in kitchens, bathrooms, etc.” Def.’s Mem. at 16 (citing Terms of the Trad e 280 (3rded. 1993)). 27 Using this definition, the Government deduces that “tileboard ” must have an appearance of ceramic tile. Def.’s Me m. at 20-21. However, the Government also cites literature from ABT Co., the manufacturer of AquaTile®Embossed Tileboard, claiming that ABT Co.’s Tileboard has “the look of fine tile and marble.” Def.’s Mem. at 17. Moreover, in HQ 085913, discussing Plywood Panels Inc.’s “tileboard,” Customs refers to a defini tion of “tileboard” provided by the AHA as requiring “tileboard” to have a ceramic tile or marble appearance. HQ 085913 at 1 (January 8, 1990). 2 8 Ply wood Panels Inc.’s

“ tileboard” likewise has a “ceramic or marble” appearanc e. Id. , Def.’s Mem. at 13 n.13. Depending on howone defines “designed to looklik e cer amic tile,” ABT Co.’s and Plywood Panels Inc.’s products would not be “tileboard” because of the ir marbleCourt No. 98-00360 Page 32

29 Witex is joined by a companion case, Faus Group , slip op. 04-143 (CIT Nov. 15, 2004). The counsel in that case has rested its resolution on the disposition of this case. Furthermore, these proceedings are joined by Amicus Congoleum Corporation who has secured an order from the Court suspending its case on the Court’s Reserve Calendar pending resolution of this case. Therefore, the interest in developing a cogent and correct theory of subheading 4411.19.30, HTSUS, to apply to future cases (which is not a mere possibility) is strong. Given that once a commercial or common meaning is established, that meaning remains controlling, see e.g. , Intercontinental Marble Corp. v. United States , 381 F.3d 1169, 1176 (Fed. Cir. 2004), it is important that the Court not rush to define “tileboard” with less than complete information as to its meaning. appearance. In o ther words, products the Government uses as evidence of “tileboard” would in fact not be “tileboard.” Although the evidence from manufacturers is of questionable probative value, when joined with the purportedAHA definition, this evidence leads the Court to believe that there may be a co mmercial definition of “tileboard” that deviates from the common meaning. Because the parties have not adequat el y supported their profferedcommercial definitions of “tileboard” despite the fact that a commercial designation seems probable, it is impossible for the Court to exclude the possibility of a commercial designation and arrive at the proper construction of subheading 4411.19.30, HTSUS. 29 However, because of the C ourt’s d uty to determine the correct meaningof tariff terms, see Jarvis Clark Co. v. United States , 733 F.2d873, 878 (Fed. Cir. 1984), Co ngress v ested the Court of International Trade with broad discretionary powers necessary to resolve cases like this. See 28 U.S.C. § 2643. Spe ci fically, 28 U.S.C. § 2643 (b) provides that:Court No. 98-00360 Page 33

If the Court of International Trade is unable to d etermine the correct decision on the basis of th e evide nce presented in any civil action, the court m a y orde r a retrial or rehearing for all purposes, or ma y order such fu rth er administrative or adjudicative procedures as the court considers necessary to enable it to reach the correct decision. 28 U.S.C . § 2643 (emphasis added). In addition, USCIT Rule 56(d) authorizes the Court, in this situation, to “direct[] such further proceedings in the action as are just.” Therefore, i n accord ance with its dutyto determine the correct meaning of “tileboard,” the Court finds that summary judgment is not appropri ate at t his time andorders the parties to prepare an order governingpreparation for trial.

CONCLUSION Because the Court finds the record insufficient to est ablish

a commercial designation for the term “tileboar d, ” or exclude the possibilitythere of, th e cross motions for summary judgment are denied. Th e partie s shall jointly prepare an order governing preparation for trial and submit it to the Court by December 1 5, 2004. It is so ORDERED /s/ Donald C. Pogue Donald C. Pogue Judge November 15, 2004 New York, New York