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 Harmonized

Tariff Schedule of the United States (1997) (“HTSUS”). Plaintiffs

Witex, U.S.A., Inc. and Mannington Mills (“Witex”) challenge the
Consol. Court No. 98-00360 Page 2

1Effective 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).

24411 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/cm3:

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

United States Customs Service’s1 (“Customs” or “Government”)

liquidation of its laminated flooring panels (“merchandise” or

“flooring panels”), claiming that the merchandise should be

liquidated as “tileboard” under heading 4411.19.30, HTSUS, and

therefore duty free.2 The Government avers that Witex’s product is

not “tileboard” and therefore should be classified under a basket
Consol. Court No. 98-00360 Page 3

3This 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.

4As 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/cm3, and

Witex’s merchandise should be assessed a duty of 6% ad valorem. See

subheading 4411.19.40, HTSUS. Before the Court are cross motions

for summary judgment pursuant to USCIT Rule 56. The Court has

exclusive jurisdiction 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 Consol. 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.4
Consol. Court No. 98-00360 Page 4

at 1.

5The 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/cm3 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 requirements of USCIT Rule 56, the parties have

agreed to few relevant facts. The panels at issue consist of a

fiberboard core with a density 0.891 g/cm3, Mem. from Nick

Zerebecki, Mannington Mills, to Hao Chen, Mannington Mills, Witex

Laminate Products, Ex. 2 to Pl.’s Mem (February 14, 1997)

(“Mannington Mem.”), Def.’s Statement Additional Material Facts

(“Def.’s Statement”) at para. 3, and are tongue-and-grooved 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 melamine and

aluminum oxide, Mannington Mem. at 1, Def.’s Statement at para. 3,
Consol. Court No. 98-00360 Page 5

6By 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.

7The 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

and the panels may be used on floors.6 Pl.’s Mem. at 7 para. 19,

Def.’s Statement at para. 1.

SUMMARY OF ARGUMENTS

Witex argues that its flooring panels are not fiberboard

products and therefore cannot be classified under heading 4411,

HTSUS. More specifically, Witex argues that fiberboard, by

definition, is limited to unfinished products, whereas its

merchandise is finished. Pl.’s Mem. at 11-14, Pl.’s Resp. at 4,

Pl.’s Reply in Supp. of Mot. for 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 panels are properly

classified under heading 4418, HTSUS, covering “[b]uilders’ joinery

and carpentry of wood.” Pl.’s Mem. at 25, Pl.’s Resp. at 19-20,

Pl.’s Reply at 14-15.7
Consol. 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 classified under subheading

4411.19.30, HTSUS, which covers “[t]ileboard 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.”

Pl.’s Mem. at 14-24, Pl.’s Resp. at 6-18, Pl.’s Reply at 1-13.

Witex maintains that Customs unduly restricted the scope of

subheading 4411.19.30, 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 Government argues that the merchandise is classifiable

under heading 4411, HTSUS. The Government asserts that Witex relies

on a commercial definition of fiberboard used in Europe to support

its contention that fiberboard can only be unfinished. Def.’s Mem.

at 25-26. That European commercial definition, the Government

contends, is irrelevant to the classification of products under the

HTSUS. Id. In defining “tileboard,” the Government points to the

legislative history of the “tileboard” provision which includes a

letter from J.J. Barker Co. to the Trade Policy Staff Committee

seeking a 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. had
Consol. Court No. 98-00360 Page 7

been importing its “tileboard” product duty free under the Tariff

Schedule of the United States (“TSUS”), but was facing a 6% ad

valorem duty 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 not face an

increase in duty, the “tileboard” provision was added. Id. As the

Government argues, because Witex’s merchandise is not 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 industry

practice, Def.’s Mem. 17, 22, Def.’s Reply at 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

usually embossed 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 around “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 merchandise is laminated, 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 Government

argues, Witex’s product is excluded from subheading 4411.19.30,

HTSUS, rendering it classifiable under 4411.19.40, HTSUS, covering
Consol. Court No. 98-00360 Page 8

8Witex 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/cm3 which are surfaced coated by more than oil.

STANDARD OF REVIEW

“The proper scope and meaning of a tariff classification term

is a question of law . . . while determining whether the goods at

issue fall within a particular tariff term as properly construed is

a question of fact.” Franklin v. United States, 289 F.3d 753, 757

(Fed. Cir. 2002) (citations omitted). A Customs’ classification

ruling is subject to de novo review8 as to the meaning of the tariff

provision, pursuant to 28 U.S.C. § 2640, but may be accorded a

“respect 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. Summary judgment 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 entitled
Consol. 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, in

classification 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

commercial meaning is in question. Russell Stadelman & Co. v.

United States, 242 F.3d 1044, 1048 (Fed. Cir. 2001). For the

reasons set forth below, summary judgment for either party at this

point is not warranted.

DISCUSSION 

“The proper classification of merchandise entering the United

States is directed by the General Rules of Interpretation (‘GRIs’)

of the HTSUS and the Additional United States Rules of

Interpretation.” Orlando Food Corp. v. United States, 140 F.3d

1437, 1439 (Fed. Cir. 1998). The HTSUS is organized by headings

setting forth general categories of merchandise; below each heading

are listed subheadings (and then further subdivisions) that more

specifically describe products within each heading. Id. According

to the GRIs, a Court must choose the most appropriate heading, and

then, “[o]nly after determining that a product is classifiable under

the heading should the court look to the subheadings to find the
Court No. 98-00360 Page 10

correct classification for the merchandise.” Id. at 1440 (citing

GRI 1, 6, HTSUS). Once the Court chooses the proper heading, the

Court is limited to choosing a subheading only from within the

proper heading, i.e., the subheadings appearing under other headings

become irrelevant for the classification of the merchandise at

issue. Id.

Because there is a dispute as to the proper heading, the Court

will first determine whether the flooring panels are properly

classified under heading 4411, HTSUS. After finding that the

merchandise is properly classifiable under heading 4411, HTSUS, the

Court will construe subheading 4411.19.30, HTSUS, ultimately

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

determined according to the terms of the headings and any relative

section or chapter notes . . . .” Heading 4411, HTSUS, covers

“[f]iberboard of wood or other ligneous materials, whether or not

bonded with resins or other organic substances.” Both parties

concede that the merchandise is made with a fiberboard core. Pl.’s

Statement Undisputed Facts Supp. Pl.’s Mot. Summ. J. at para. 2,

Def.’s Statement at para. 1. Fiberboard is defined as “[a] general

term that refers to any of various panel products such as

particleboard, hardboard, chipboard, or other type formed by bonding
Court No. 98-00360 Page 11

9The 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.

wood fibers by heat and pressure.” Terms of the Trade 130 (4th ed.

2000); see also Webster’s II New Riverside University Dictionary 474

(1988) (“[a] building material made of plant fibers, as wood, bonded

together and compressed into rigid sheets.”). These definitions do

not define “fiberboard” by any element of its finish. 

Witex contends that Customs wrongfully classified its

merchandise under heading 4411, HTSUS, because fiberboard includes

only unfinished merchandise whereas Witex’s merchandise is finished.

To support is contention, Witex introduces a letter from the

European Producers of Laminate Flooring (“EPLF”) stating that

“[f]rom an industry perspective . . . [l]aminate panelling, which

is widely used in the industry for both wall and floor applications,

cannot be fibreboard because, by definition, fibreboard is a

component of some types of laminate and, at most, can be considered

unfinished laminate.” Letter from Peter H. Meyer, Managing Director

of the European Producers of Laminate Flooring, to Bruce Aitken,

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 fiberboard, if you go to

a lumberyard, probably they would direct you to a 4 by 8 sheet of

fiberboard, probably unfinished.” Dep. Paul Garetto, Ex. 14 to
Court No. 98-00360 Page 12

10Witex 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 by 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 commercial 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

seeks; 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 establish a commercial meaning for its

merchandise. Witex is correct in claiming that an established

commercial meaning prevails 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 commercial meaning, the party

invoking a commercial meaning has the burden of proving that a term

has a commercial meaning that is “definite, uniform, and general
Court No. 98-00360 Page 13

11Witex 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 Wheat) 430, 438

(1824) (“Whether a particular article were 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 (1964). Accordingly, “in considering

the commercial designation of a tariff term, only commercial use of

that term in the United States is relevant.” Russell Stadelman &

Co. v. United States, 242 F.3d 1044, 1049 (Fed. Cir. 2001) (emphasis

added). 

The evidence proffered by Witex fails to meet the burden of

proof for establishing a commercial meaning in this case. A letter

from a single European trade association, that represents only

producers of laminate flooring,11 does not provide any evidence of

a definite, general, and uniform meaning of a term as used in the

United States. Nor is Witex’s claim supported by the Deposition of

Paul Garretto. The Deposition of Paul Garretto merely establishes

that if a person asked for fiberboard at a lumberyard, they
Court No. 98-00360 Page 14

12Just 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.

13Chapter 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 directed to unfinished fiberboard. This does

not constitute evidence that if fiberboard 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 meaning of

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 Explanatory

Notes. Heading 4411, HTSUS, is an eo nomine provision as it

“describes a commodity by a specific name.” Am. Hardboard Ass’n v.

United States, 12 CIT 714, 715 (1988); see also JVC Co. of Am. v.

United States, 234 F.3d 1348, 1352 (Fed. Cir. 2000). Because eo

nomine “provision[s] include[] all forms of the named article unless

limited by [their] terms,” Am. Hardboard, “[a]n improvement in

merchandise provided for eo nomine does not remove it from

classification under the eo nomine designation.” Arthur J.

Humphreys, Inc. v. United States, 973 F.2d 1554, 1556 (1992).

Consequently, when an eo nomine provision is used as it is in

heading 4411, HTSUS, the tariff term implicitly means fiberboard and

products made from fiberboard.13 Therefore, even if a piece of
Court 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. 

14For a thorough discussion of Note 4 to Chapter 44, see

Faus Group, Inc. v. United States, slip op. 04-143 (CIT Nov. 15,

2004).

fiberboard has been further worked beyond its raw form, it still

remains classifiable under heading 4411, HTSUS. 

The drafters of the HTSUS, and Congress, recognized that

heading 4411, HTSUS, includes fiberboard products that have been

further worked through the inclusion of Chapter Note 4 to Chapter

44 which provides that “[p]roducts of heading 4410, 4411, or 4412

may be worked to form the shapes provided for in respect of articles

of heading 4409, curved, corrugated, perforated, cut or formed to

shapes other than square or rectangular or submitted to any 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 among those enumerated,

that gives the product the character of an article in another

heading. The Explanatory Note to 44.11 further specifies that

“[i]mpregnating or other agents may also be added during or after
Court No. 98-00360 Page 16

manufacture of the board to give an extra property, e.g.,

impermeability to water or resistance to rot, insect attack, fire

or the spread of flame.” Harmonized Commodity Description and

Coding System, Explanatory Note 44.11 (2nd ed. 1996) at 680

(“Explanatory Notes” or “EN”); cf. Chapter 44, U.S. Note 1(c),

HTSUS. Last, the subheadings under heading 4411, HTSUS, include

products such as “tileboard,” subheading 4411.19.30, HTSUS, and

“[l]aminated boards bonded in whole or in part, or impregnated,

with synthetic resins,” subheading 4411.29.20, HTSUS. Witex’s

reading of heading 4411, HTSUS, to preclude classification of its

laminated paneling therein, would render nugatory the above

referenced provisions, in violation of the well-established rule of

statutory construction 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 and Explanatory

Notes demonstrate a clear Congressional intent not to use the

restrictive definition of “fiberboard” advanced by Witex.

Accordingly, even if Witex could prove its commercial meaning of

“fiberboard,” there is a clear indication that Congress did not

intend Witex’s claimed commercial meaning. See Cadwalader v. Zeh,

151 U.S. 171, 176 (1894) (the “commercial meaning is to prevail,

unless Congress has clearly manifested a contrary intention.”).

B. Other possible headings
Court No. 98-00360 Page 17

Alternatively, Witex asks the Court to choose another

appropriate heading, referencing the dispute before the Court in

Faus Group, Inc. v. United States, slip op. 04-143 (CIT Nov. 15,

2004), which deals with heading 4418, HTSUS, covering “[b]uilders’

joinery and carpentry of wood.” Pl.’s Mem. at 25. In Faus Group,

slip op. 04-143 (CIT Nov. 15, 2004), the Court found that nearly

identical laminated flooring panels were properly classifiable under

heading 4411, HTSUS, and not under heading 4418, HTSUS. Because

Witex does not present any arguments or 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 would fall, heading 4411, HTSUS, is the proper heading

for Witex’s flooring panels.

II. Choosing the Proper Subheading

Finding that Witex’s flooring panels are properly classified

under heading 4411, HTSUS, the Court next addresses under which

subheading the merchandise falls. Both parties agree that, if the

merchandise falls under heading 4411, HTSUS, the merchandise either
Court No. 98-00360 Page 18

15There 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/cm3; (2) subheadings 4411.21 - 4411.29, HTSUS,

covering fiberboard products with densities exceeding 0.5 g/cm3

but not exceeding 0.8 g/cm3 and; (3) subheadings 4411.31 -

4411.99, HTSUS, covering fiberboard with density of less than 0.5

g/cm3. Because Witex’s flooring panels have a density of greater

than 0.8 g/cm3, 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.

16Witex 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]ileboard 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

building,” or subheading 4411.19.40, covering all “other” fiberboard

products with densities greater than 0.8 g/cm3 which are surface

covered by more than an oil treatment.15 Because subheading

4411.19.40, HTSUS, is a basket provision, i.e., covering all

products not classifiable elsewhere,16 the flooring panels are only

classifiable in subheading 4411.19.40, HTSUS, if they are not

classifiable under subheading 4411.19.30, HTSUS. See Rollerblade,
Court No. 98-00360 Page 19

17The 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

EM Indus., Inc. v. United States, 22 CIT 156, 165, 999 F. Supp.

1473, 1480 (1998)). Consequently, this case hinges on the meaning

of subheading 4411.19.30, HTSUS.

Subheading 4411.19.30, HTSUS, covers “[t]ileboard 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.” Subheading 4411.19.30, HTSUS. The language of the

subheading requires a product to exhibit three features: (1) it must

be “tileboard”; (2) which has been continuously worked along any of

its edges; and (3) is dedicated for use in the construction of

walls, ceilings or other parts of buildings. Both parties

essentially agree that Witex’s flooring panels satisfy the last two

prongs of the test: the panels are tongue-and-grooved along their

edges, satisfying the second prong; moreover, the panels are used

on “floors” which may be included within the meaning of “other parts

of buildings.”17 However, the parties do not agree on the meaning
Court 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 define

“tileboard” to determine whether the flooring panels can be

classified under subheading 4411.19.30, HTSUS.

A. The Legislative History

“The first step in properly construing a tariff classification

term is to determine whether Congress clearly defined that term in

either the HTSUS or its legislative history.” Russell Stadelman &

Co. v. United States, 242 F.3d 1044, 1048 (Fed. Cir. 2001) (emphasis

added). “Tileboard” is not defined in the HTSUS; however, both the

Customs’ Ruling, Headquarters Ruling (“HQ”) 960084 ((December 10,

1997), and the Government in this case have suggested that

“tileboard” 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. United States,

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)

established under the international Harmonized Schedule, but

reserved the right to create further subdivisions beyond the six
Court No. 98-00360 Page 21

18The “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.

19The 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 Convention on the Harmonized

Commodity Description 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 fully effective, J.J. Barker, Co.

(“J.J. Barker”), an importer of “tileboard,” alerted the Trade

Policy Staff Committee (“TPSC”)19 that although its imports of

paneling were duty free under the TSUS, under the proposed HTSUS

J.J. Barker’s product would face a 6% ad valorem duty rate. See

Letter from S.C. Gauthier to Christopher P. Marcich, Director of

Tariff Affairs, Ex. D to Def.’s Mem. (Jan. 8, 1988) (“Barker

Letter”). According to the Government, the TPSC responded by adding

subheading 4411.19.30, HTSUS, in order to maintain duty free

treatment for J.J. Barker’s imports. Def.’s Mem. at 11-14.

According to the Government, because J.J. Barker’s product was

referred to as “tileboard,” the Court should look to that product

as a model for what constitutes “tileboard” within the meaning of
Court No. 98-00360 Page 22

subheading 4411.19.30, HTSUS. See Def.’s Mem. at 12-13. The

Government, gleaning its information from a product brochure, Easy

Living – With Barker, Ex. E to Def.’s Mem., describes “tileboard”

as “completely water resistant decorative wall panels made of nonlaminated hardboard with a density of 1.15 g/cm3 with their surface

painted, coated and grooved to imitate individual ceramic tiles.”

Def.’s Mem. at 12. 

The letter from J.J. Barker cited by the Government, however,

is of dubious probative value and 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 intent 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 interest group sponsored or opposed

particular legislation. We ought not attribute to

Congress an official purpose based on the motives of a

particular group that lobbied for or against a certain

proposal – even assuming the precise intent of the group

can be determined . . . .

Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 120 (2001)

(citations omitted). Similarly, the court in United States v.

Paramount Publix Corp., 22 C.C.P.A. 452, 460 (1934) found that

committee testimony of interested parties was not “controlling since

the enactment of the provision in the language before us might have

been with an intent wholly different from that indicated by the

witnesses.” This problem is particularly acute here where there is

no indication of how the TPSC, or Congress, defined “tileboard” in
Court No. 98-00360 Page 23

20In 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/cm3 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/cm3 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. 

21When 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

relation to J.J. Barker’s product.20 Therefore, this history does

not provide the Court with a definite or express definition of

“tileboard.”21
Court 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).

22The Court has been able to locate certain dictionary

definitions of “tileboard.” See Webster’s Third New

International Dictionary 2393 (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

Consequently, because the legislative history is of a nondispositive nature, this case cannot be resolved by looking first

to the legislative history for a definition. 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 looks to the term’s common or commercial meaning. Both

parties have suggested that there is a commercial meaning for the

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 party has established, or can

establish, a commercial meaning. Cf. Cadwalader v. Zeh, 151 U.S.

171, 176 (1893) (“it is only when no commercial meaning is called

for 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.3d 1044, 1048

(Fed. Cir. 2001); but cf. Boen, 357 F.3d at 1265.

As this Court has long maintained, the rule of commercial

designation is “intended to apply to cases where the trade

designation is so universal and well understood that the Congress,

and all 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 commercial meaning, a party must prove that

“tileboard” has a commercial meaning in the trade “which is general

(extending over the entire country), definite (certain of
Court No. 98-00360 Page 26

23No 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.

24Witex 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 proved by persons engaged in buying and selling the

merchandise at wholesale 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. Mfrs. v. United

States, 15 Ct. Cust. App. 355, 360 (1928). Moreover, mere negative

inference that a product is excluded from a commercial designation

is insufficient; rather, a party must offer positive evidence of the

actual meaning of the commercial designation. United States v. Fung

Chong Co., 34 C.C.P.A. 40, 44 (1946); Carl-Zeiss, Inc. v. United

States, 22 CIT 606, 610-11, 16 F. Supp. 2d 1097, 1101 (1999). Last,

minus a clear statement of commercial practice, Boen, 357 F.3d at

1265, testimony by witnesses is an indispensable tool in

establishing a 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.24
Court 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 on
Court 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 meaning of the

tariff term. However, it appears premature to entirely reject the

possibility that “tileboard” does have a commercial meaning in this

case. Rather, what “evidence” has been offered as to commercial

meaning has not been sufficiently developed to determine if there

is a commercial meaning, and if there is, what exactly that
Court No. 98-00360 Page 29

25Custom’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 parties agree that the American Hardboard

Association (“AHA”) does 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

party has offered testimonial evidence to this effect, and what

evidence they have produced is confusing.25 Because the sources

cited by the parties do suggest that the AHA does have a commercial
Court No. 98-00360 Page 30

26Both 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 required to determine to which, if any,

of these definitions the AHA subscribes.26

Second, evidence from industry practice, suggests that the

industry may define “tileboard” differently from common sources. 

For example, the Terms of the Trade specifies that “tileboard” is

“[a] hardboard panel that has been embossed with a pattern and then
Court No. 98-00360 Page 31

27Note 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.

28Evidence 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.

coated with 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 Trade 280 (3rd ed. 1993)).27 Using this

definition, the Government deduces that “tileboard” must have an

appearance of ceramic tile. Def.’s Mem. 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 definition of “tileboard” provided by the AHA as

requiring “tileboard” to have a ceramic tile or marble appearance.

HQ 085913 at 1 (January 8, 1990).28 Plywood Panels Inc.’s

“tileboard” likewise has a “ceramic or marble” appearance. Id.,

Def.’s Mem. at 13 n.13. Depending on how one defines “designed to

look like ceramic tile,” ABT Co.’s and Plywood Panels Inc.’s

products would not be “tileboard” because of their marble
Court No. 98-00360 Page 32

29Witex 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 other 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 purported AHA definition, this evidence leads

the Court to believe that there may be a commercial definition of

“tileboard” that deviates from the common meaning. 

Because the parties have not adequately supported their

proffered commercial 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 Court’s duty to determine the correct

meaning of tariff terms, see Jarvis Clark Co. v. United States, 733

F.2d 873, 878 (Fed. Cir. 1984), Congress vested the Court of

International Trade with broad discretionary powers necessary to

resolve cases like this. See 28 U.S.C. § 2643. Specifically, 28

U.S.C. § 2643 (b) provides that: 
Court No. 98-00360 Page 33

If the Court of International Trade is unable to

determine the correct decision on the basis of the

evidence presented in any civil action, the court may

order a retrial or rehearing for all purposes, or may

order such further 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, in accordance

with its duty to determine the correct meaning of “tileboard,” the

Court finds that summary judgment is not appropriate at this time

and orders the parties to prepare an order governing preparation for

trial. 

CONCLUSION

Because the Court finds the record insufficient to establish

a commercial designation for the term “tileboard,” or exclude the

possibility thereof, the cross motions for summary judgment are

denied. The parties shall jointly prepare an order governing

preparation for trial and submit it to the Court by December 15,

2004. 

It is so ORDERED

 /s/ Donald C. Pogue

 Donald C. Pogue

 Judge 

November 15, 2004

New York, New York