Value Vinyls, Inc. v. United States , 31 Ct. Int'l Trade 1209 ( 2007 )

Slip Op. 07 - 114
UNITED STATES COURT OF INTERNATIONAL TRADE
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VALUE VINYLS, INC., :
Plaintiff, :
v. : Court No. 01-00896
UNITED STATES, :
Defendant. :
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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