                          Slip Op. 15 - 110

           UNITED STATES COURT OF INTERNATIONAL TRADE


COMPOSITE TECHNOLOGY
INTERNATIONAL, INC.,

     Plaintiff,                      Before: Nicholas Tsoucalas,
                                             Senior Judge
v.
                                     Court No. 13-00205
UNITED STATES,

     Defendant.


                             OPINION

[Plaintiff’s motion for summary judgment is denied; Defendant’s
cross-motion for summary judgment is granted.]

                                                Dated: September 28, 2015

Joseph P. Cox and Mandy A. Edwards, Stein Shostak Shostak Pollack
& O'Hara, LLP, of Los Angeles, CA, for Plaintiff.

Stephen C. Tosini, Senior Trial Counsel, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice, of Washington
D.C., for Defendant. With him on the brief were Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Jeanne E. Davidson,
Director, Patricia M. McCarthy, Assistant Director. Of counsel on
the action was Yelena Slepak, Office of the Assistant Chief
Counsel, International Trade Litigation, United States Customs and
Border Protection, of New York, NY.

          Tsoucalas, Senior Judge:     This case is before the court

on cross-motions for summary judgment.     See Pl.’s Mot. For Summ.

J., ECF No. 27 (“Pl.’s Br.”); Def.’s Cross-Mot. For Summ. J., ECF

No. 32 (“Def.’s Br.”); Pl.’s Resp. to Def.’s Cross-Mot. For Summ.

J., ECF No. 33; Def.’s Reply in Support of its Cross-Mot. For Summ.

J., ECF No. 34.    Plaintiff Composite Technology International,
Court No. 13-00205                                                       Page 2


Inc.   (“Composite”)   challenges      the   decision   of    Defendant     U.S.

Customs and Border Protection (“Customs”) denying Plaintiff’s

protest, which claimed that the imported merchandise is properly

classified duty free under Harmonized Tariff Schedule of the United

States (“HTSUS”) subheading 4412.99.51 (2012), “Plywood, veneered

panels and similar laminated wood: Other: Other: With at least one

outer ply of nonconiferous wood: Other: Other.”              For the reasons

stated below, the product at issue here is properly classified

under HTSUS subheading 4421.90.97, and accordingly, Defendant’s

cross-motion   for    summary    judgment    is   granted    and    Plaintiff’s

motion for summary judgment is denied.

                                 BACKGROUND

            The following facts are not in dispute.                Plaintiff is

the importer of record.       Compl. ¶ 3, June 19, 2013, ECF No. 5.          In

the instant action Plaintiff imported merchandise under Protest

No. 2006-13-100540.     Pl.’s Br. Att. 2 at ¶ 1.

            Pursuant to 19 U.S.C. § 1514(a)(4) (2012), on March 18,

2013, Plaintiff filed its protest to challenge Customs’ decision

to assess duty at the rate of 3.3% ad valorem.                     Id. at ¶ 3.

Plaintiff   claimed    that     the   imported    merchandise      is   properly

classified duty free under HTSUS 4412.99.51 as “Plywood, veneered

panels and similar laminated wood: Other: Other: With at least one
Court No. 13-00205                                                    Page 3


outer ply of nonconiferous wood: Other: Other.”              Id. at ¶ 4.     On

April   17,    2013,   Customs    denied   the   protest,    concluding    that

Composite’s     merchandise      is   classifiable   under    4421.90.97,   as

“Other articles of wood: Other: Other: Other.”              Id. at ¶ 5.

              The merchandise is wooden door stiles and rails that

consist of a 9.5 millimeter-thick pine cap laminated to a base of

laminated poplar wood layers, each with a thickness of less than

six millimeters.        Id. at ¶ 7, 8.      The merchandise has a surface

layer of pine wood that is used as the exposed surface.             Id. at ¶

10.   Two of the imported items, the “79" MSD Latch Stile with 3/8"

cap and the 79 Prem Stile with 3/8" Cap, have a rebate cut at both

ends of the wood.”       Id. at ¶ 13.      Other than the rebate cuts, the

seven imported items are constructed the same, except that they

are imported in various lengths and thicknesses.             Id. at ¶ 14.

                  JURISDICITON AND STANDARD OF REVIEW

              The court has jurisdiction pursuant to 28 U.S.C. §

1581(a) (2012).        The court reviews Customs’ protest decisions de

novo. 28 U.S.C. § 2640(a)(1).              USCIT Rule 56 permits summary

judgment when “there is no genuine issue as to any material fact

. . . .” USCIT R. 56(c); see also Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247 (1986).         In considering whether material facts

are in dispute, the evidence must be considered in the light most
Court No. 13-00205                                                         Page 4


favorable    to     the    non-moving     party,    drawing     all    reasonable

inferences in its favor.           See Adickes v. S.H. Kress & Co., 398

U.S. 144, 157 (1970); Anderson, 477 U.S. at 261 n.2.

            A classification decision involves two steps. The first

step   addresses     the     proper     meaning    of     the   relevant   tariff

provisions, which is a question of law.                 See Faus Group, Inc. v.

United States, 581 F.3d 1369, 1371-72 (Fed. Cir. 2009) (citing

Orlando Food Corp. v. United States, 140 F.3d 1437, 1439 (Fed.

Cir. 1998)).       The second step involves determining whether the

merchandise at issue falls within a particular tariff provision as

construed, which, when disputed, is a question of fact. Id.

            When     there    is   no    factual    dispute      regarding    the

merchandise, the resolution of the classification issue turns on

the first step, determining the proper meaning and scope of the

relevant tariff provisions. See Carl Zeiss, Inc. v. United States,

195 F.3d 1375, 1378 (Fed. Cir. 1999); Bausch & Lomb, Inc. v. United

States, 148 F.3d 1363, 1365-66 (Fed. Cir. 1998).                 This is such a

case, and summary judgment is appropriate.               See Bausch & Lomb, 148

F.3d at 1365-66.

            While     the     court      accords    deference         to   Customs

classification rulings relative to their “power to persuade,”

United States v. Mead Corp., 533 U.S. 218, 235 (2001) (citing
Court No. 13-00205                                                       Page 5


Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)), the court has

“an independent responsibility to decide the legal issue of the

proper meaning and scope of HTSUS terms.”            Warner-Lambert Co. v.

United States, 407 F.3d 1207, 1209 (Fed. Cir. 2005) (citing Rocknel

Fastener, Inc. v. United States, 267 F.3d 1354, 1358 (Fed. Cir.

2001)).

                                    DISCUSSION

             Classification disputes under the HTSUS are resolved by

reference to the General Rules of Interpretation (“GRIs”) and the

Additional U.S. Rules of Interpretation.           See Carl Zeiss, 195 F.3d

at   1379.       The   GRIs   are   applied   in   numerical    order.      Id.

Interpretation of the HTSUS begins with the language of the tariff

headings, subheadings, their section and chapter notes, and may

also be aided by the Explanatory Notes published by the World

Customs Organization.         Id.   “GRI 1 is paramount . . . The HTSUS is

designed so that most classification questions can be answered by

GRI 1 . . . .”         Telebrands Corp. v. United States, 36 CIT ___,

___, 865 F. Supp. 2d 1277, 1280 (2012).

             Pursuant to GRI 1, merchandise that is described “in

whole   by   a   single   classification      heading   or   subheading”     is

classifiable under that heading.           CamelBak Prods. LLC v. United

States, 649 F.3d 1361, 1364 (Fed. Cir. 2011).                  If that single
Court No. 13-00205                                                              Page 6


classification applies, the succeeding GRIs are inoperative.                       Mita

Copystar Am. v. United States, 160 F.3d 710, 712 (Fed. Cir. 1998).

Here,     GRI     1        resolves    the    classification        of    Composite’s

merchandise.

            The court construes tariff terms according to their

common and commercial meanings, and may rely on both its own

understanding of the term as well as upon lexicographic and

scientific authorities.               See Len-Ron Mfg. Co. v. United States,

334 F.3d 1304, 1309 (Fed. Cir. 2003).                  The court may also refer to

the Explanatory Notes “accompanying a tariff subheading, which—

although not controlling—provide interpretive guidance.”                           E.T.

Horn Co. v. United States, 367 F.3d 1326, 1329 (Fed. Cir. 2004)

(citing Len-Ron, 334 F.3d at 1309).

            The issue before the court in the instant action concerns

whether    Composite’s         merchandise        is   properly    classified      under

heading    4412       as    “[p]lywood,”     “veneered      panels,”     or   “similar

laminated wood,” or under heading 4421 as “other articles of wood.”

Plaintiff argues that Composite’s merchandise is classifiable

under heading 4412.            Pl.’s Br. at 1.          Plaintiff insists that the

subject merchandise fits squarely within the common meaning of

“veneered       panels,”       provided      by    lexicographical       sources     and

supported by the Explanatory Notes.                    Id. at 2.   Plaintiff relies
Court No. 13-00205                                                        Page 7


on the litigation in Boen Hardwood Flooring, Inc. v. United States,

26 CIT 253 (2002), reh’g granted, 27 CIT 40 (2003), rev'd, 357

F.3d 1262 (Fed. Cir. 2004) to support its contention that the 9.5

millimeter pine caps on its products must be treated as veneers.

Id. at 15-18.     In the alternative, Plaintiff contends that the

subject merchandise constitutes “similar laminated wood” because

it is “laminated wood,” and it possesses numerous characteristics

in common with wood merchandise classified under Heading 4412.

Id. at 18–20.    It does not appear that the Plaintiff asserts that

Composite’s   merchandise       can   be   classified   as   “plywood”      under

heading 4412.

           As required by GRI 1, the court begins its inquiry with

the relative sections and chapter notes to headings 4412.                 Heading

4412, HTSUS, provides for “Plywood, veneered panels and similar

laminated wood.”        The explanatory notes to heading 4412 defines

veneered panels as “panels consisting of a thin veneer of wood

affixed to a base.”          4412 Explanatory Note.      Apart from stating

that a veneered panel must be “thin,” heading 4412 does not specify

the   specific   size    a   wooden   product   must    be   in   order    to   be

classified as a veneered panel.              The HTSUS, though, provides

further guidance with regards to the specific size requirements

for a wooden product to be considered a veneered panel in heading
Court No. 13-00205                                                    Page 8


4408.     Heading 4408 defines sheets for veneering as having “a

thickness not exceeding 6 mm.”        HTSUS 4408 (emphasis added).

            The pine cap rails and stiles at issue here have a face

plies that exceed six millimeters in thickness, and therefore

conflicts with the language found in headings 4412, 4408, and their

respective explanatory notes discussed above.              See Def.’s Br. at

Attachment B, ECF 32.2.      The court therefore agrees with Defendant

that Composite’s merchandise cannot be classified as veneered

panels under heading 4412.

            Plaintiff argues that the Federal Circuit’s holding in

Boen    supports   its   contention   that   Composite’s     merchandise   is

classifiable under heading 4412.          The court disagrees.       In Boen,

the Federal Circuit held that the subject merchandise in dispute

was of a plywood construction.         See Boen, 357 F.3d at 1265–66.

Although heading 4412 covers plywood, veneered panels, and similar

laminated wood, the three types of wooden plies are not synonymous.

4412    Explanatory   Note   (Outlining    each   wooden    plies’   specific

characteristics).        The Federal Circuit in Boen defined plywood,

but made no ruling as to what constitutes a veneer panel.                Boen

therefore does not support Plaintiff’s position that Composite’s

merchandise is classifiable as a veneered panel.
Court No. 13-00205                                                Page 9


            Additionally, the court disagrees with Composite that

its merchandise is classifiable under heading 4412 as “similar

laminated wood.”     Pl. Br. at 18-20.     “Similar laminated wood” is

defined in the Explanatory Notes for HTSUS heading 4412 as follows:

      [1] Blockboard, laminboard and battenboard, in which the
      core is thick and composed of blocks, laths or battens
      of wood glued together and surfaced with the outer plies.
      Panels of this kind are very rigid and strong and can be
      used       without       framing        or       backing.
      [2] Panels in which the wooden core is replaced by other
      materials such as a layer or layers of particle board,
      fibreboard, wood waste glued together, asbestos or cork.

Def.’s Br. at Attachment B at 1.         The merchandise’s base layers

consist of wood of a thickness of less than two millimeters.

Plaintiff does not allege that the merchandise contains a core of

“blocks, laths, or battens.”         Moreover, the merchandise here is

composed of wood and thus cannot fit within the second category of

the   “similar   laminated   wood”    definition.   Because   Composite’s

merchandise does not meet the requirements outlined by the HTSUS

and   its   respective   explanatory    notes   with   regards   to   what

constitutes “similar laminated wood,” the court concludes that

Composite’s merchandise cannot be classified as being a “similar

laminated wood” under heading 4412.

            As such, Composite’s merchandise is not classifiable

under Heading 4412.      Plaintiff has not provided the court with a

narrative to support its classification under any other heading in
Court No. 13-00205                                                Page 10


Chapter 44 of the HTSUS, thus the only remaining heading under

which the subject merchandise may be classified is heading 4421.

Heading 4421 covers “other articles of wood” but excludes any that

are   “specified   or   included   in   the   preceding   headings.”   4421

Explanatory Note.       Accordingly, since the subject merchandise in

the instant case cannot be classified under any other heading in

chapter 44, the court concludes that the merchandise is properly

classified under heading 4421.

                                CONCLUSION

           For the foregoing reasons, the court denies Plaintiff’s

motion for summary judgment, grants Defendant’s cross-motion for

summary judgment, and holds that Composite’s merchandise at issue

is properly classified under subheading 4421.90.97.




                                                 /s/ Nicholas Tsoucalas
                                                   Nicholas Tsoucalas
                                                       Senior Judge
       September 28, 2015
Dated: __________________
       New York, New York
