                           Slip Op. 07 - 114

           UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - - x
VALUE VINYLS, INC.,                 :

                           Plaintiff,     :

           v.                             :     Court No. 01-00896

UNITED STATES,                            :

                        Defendant. :
- - - - - - - - - - - - - - - - - - x


                           Memorandum & Order

[Defendant’s motion for rehearing or reconsider-
 ation of the court’s judgment granted, in part.]


                                                Dated:   July 20, 2007


     Givens & Johnston PLLC (Robert T. Givens and Rayburn Berry)
for the plaintiff.

     Peter D. Keisler, Assistant Attorney General; Barbara S.
Williams, Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (James A. Curley); and Office of Assistant Chief
Counsel, International Trade Litigation, U.S. Customs and Border
Protection (Beth C. Brotman), of counsel, for the defendant.



           AQUILINO,   Senior    Judge:       Final   judgment   has   been

entered in this action pursuant to slip opinion 07-17, 31 CIT

___ (Jan. 30, 2007), familiarity with which is presumed, that

adjudged   and   decreed    plaintiff’s       merchandise   as   correctly
Court No. 01-00896                                                    Page 2


classifiable     under    subheading       3921.90.11     of    the   Harmonized

Tariff Schedule of the United States (“HTSUS”) and that ordered

U.S. Customs and Border Protection (“CBP”) to reliquidate any

entries    of   that   merchandise     that    have     not    been   liquidated

thereunder.      Counsel for the defendant have responded with a

Motion for Rehearing or Reconsideration of the Court’s Judgment,

which protests that this court has

       erred in (1) placing undue reliance on the cross-
       references found in the Conversion Report (USITC Pub.
       1400), rather than on the traditional classification
       process . . .; and (2) failing to apply the
       traditional   classification    process   to   determine
       whether   the   imported   merchandise   satisfied   the
       requirements   for   classification   under   subheading
       3921.90.11 . . ..


Defendant’s Brief in Reply, p. 2 (citations omitted).


                                       I

            Suffice it to report that this motion has caused the

court to reconsider its slip opinion and concomitant judgment.

Suffice it also to verify, however, that, as always in a matter

such as this, the court has adhered to its duty “to find the

correct result[] by whatever procedure is best suited to the

case at hand”, Jarvis Clark Co. v. United States, 733 F.2d 873,

878,   reh’g    denied,   739   F.2d   628    (Fed.Cir.       1984)(emphasis   in
Court No. 01-00896                                                          Page 3


original),     and    has    indeed      applied     “the     traditional    classifi-

cation process”.        See Slip Op. 07-17 passim.

             Whether labeled “appropriate means”, 733 F.2d at 880,

or   “traditional          process”,       classification        under     the    tariff

schedules always involves first a reading of the language that

particular imports arguably implicate therein.                        Here, there is

no dispute as to what that HTSUS language is, namely, heading

3921 (“Other plates, sheets, film, foil and strip, of plastics”)

and subheadings:

     3921.90         Other:
                           Combined with textile materials and
                           weighing not more than 1.492 kg/m2:
                                 Products with textile components
                                 in which man-made fibers predomi-
                                 nate by weight over any other
                                 single textile fiber:
     3921.90.11                        Over 70 percent by weight
                                       of plastics

                                     *       *      *
     3921.90.19                    Other



The defendant now apparently considers this language clear and

unambiguous.         This court does not.                Indeed, as recognized in

slip opinion 07-17, in a prior case Customs took the position

that the language “[w]ith textile components in which man-made

fibers    predominate        by    weight    over       any   other   single     textile

fiber”,   which      was    also    found    in     HTSUS     subheading    4010.91.15

(1989),
Court No. 01-00896                                                        Page 4


     does not require the presence of more than one “class
     of” textile fiber in order for man-made fibers “to
     predominate by weight over any other single textile
     fiber.”

31 CIT at ___, Slip Op. 07-17, p. 11, quoting from Semperit

Indus.    Prods.,   Inc.    v.   United    States,     18   CIT    578,    582,    855

F.Supp. 1292, 1296 (1994)(emphasis in original).                        The court in

that matter did not agree.


            Where the language of a statute is clear, a court

should not inquire further into the intent of Congress.                        E.g.,

Pillowtex Corp. v. United States, 171 F.3d 1370, 1373 (Fed.Cir.

1999).    That is not the case here, nor was it in Semperit, where

the court considered the common and popular meaning of the word

“predominate” after concluding there was no clear legislative

intent.    See 18 CIT at 585, 855 F.Supp. at 1298.


            In the case at bar, this court has had to apply the

same statutory interpretation hierarchy to all of the terms at

issue, taking the legislative intent into account.                        See, e.g.,

Brecht Corp. v. United States, 25 CCPA 9, 13, T.D. 48977 (1937);

and United States v. Clay Adams Co., 20 CCPA 285, 288-89, T.D.

46078    (1932).     That    is,    in    accordance    with      the    traditional

classification      process,       this   court   resorted        to     legislative
Court No. 01-00896                                                    Page 5


history for assistance in interpreting the meaning.                   See 31 CIT

at ___, Slip Op. 07-17, p. 2, citing Cherokee Nation of Oklahoma

v. Leavitt, 543 U.S. 631 (2005).


            The defendant apparently considers the reported result

of this resort to be “undue reliance”.               But other courts have

taken the “Conversion Report”, USITC Pub. 1400 (June 1983), into

account.    E.g., Jewelpak Corp. v. United States, 297 F.3d 1326,

1342-43 (Fed.Cir. 2002)(Gajarsa, J., dissenting)(“that Congress

intended [the conversion] to be essentially revenue neutral[]

provides a strong rationale”);             Bausch & Lomb, Inc. v. United

States, 148 F.3d 1363, 1368 (Fed.Cir. 1998)(“Conversion Report

is    ‘clearly       relevant’        in      determining       the      correct

classification”), citing Beloit Corp. v. United States, 18 CIT

67, 81, 843 F.Supp. 1489, 1499 (1994).            Indeed, as noted in slip

opinion    07-17,   the   defendant    took    the   position    in    Semperit,

supra, that

      Congress intended     to diverge from the principle set
      forth in the ITC     Report and relied upon by plaintiff
      that the rates        established in the TSUS [Tariff
      Schedules of the     United States] should carry over to
      the HTSUS.

18 CIT at 583-84, 855 F.Supp. at 1297.               Again, that court did

not agree with the defendant.          See 31 CIT at ___, Slip Op. 07-

17,   p. 13, quoting from 18 CIT at 588, 855 F.Supp. at 1300.
Court No. 01-00896                                            Page 6


             Be those cases as they were, including, for example,

Lonza, Inc. v. United States, 46 F.3d 1098 (Fed.Cir. 1995),

wherein a particular HTSUS provision was found to be a marked

departure from the TSUS, defendant’s motion at bar does not show

any intent on the part of Congress that transformation of the

TSUS into the HTSUS would also transmogrify the 4.2 percent duty

that clearly would have attached to entries of plaintiff’s goods

under TSUS item 355.81 into the duty advance CBP now demands.


             The record reflects that plaintiff’s product by weight

is 82 percent plastic and 18 percent man-made textile material

that together weigh less than 1.492 kilograms per square meter.

Given this makeup, in the light of the “duty” enunciated by the

court   of   appeals   in   Jarvis   Clark,   this   court   cannot    (and

therefore has not) come to conclude that classification of this

merchandise is more correct, or better, under HTSUS subheading

3921.90.19 than 3921.90.11.


                                     II

             In having hereby engaged in reconsideration of slip

opinion 07-17, as requested by defendant’s instant motion, this

court cannot discern any “miscarriage of justice” of the kind

that motions like defendant’s are interposed to correct.              See,
Court No. 01-00896                                     Page 7


e.g., Starkey Laboratories, Inc. v. United States, 24 CIT 504,

110 F.Supp.2d 945 (2000), and cases cited therein.     Ergo, the

requested amendment of the judgment entered pursuant to slip

opinion 07-17 must be, and it hereby is, denied.

          So ordered.

Dated:    New York, New York
          July 20, 2007




                                  /s/ Thomas J. Aquilino, Jr.
                                        Senior Judge
