Grk Canada, Ltd. v. United States , 761 F.3d 1354 ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
GRK CANADA, LTD.,
Plaintiff-Appellee,
v.
UNITED STATES,
Defendant-Appellant.
______________________
2013-1255
______________________
Appeal from the United States Court of International
Trade in No. 09-CV-0390, Senior Judge Judith M. Barzi-
lay.
______________________
Decided: August 4, 2014
______________________
CRAIG E. ZIEGLER, Montgomery, McCracken, Walker
& Rhoads, LLP, of Philadelphia, Pennsylvania, argued for
plaintiff-appellee.
JASON M. KENNER, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of New York, New York, argued for defendant-
appellant. With him on the brief were STUART F. DELERY,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, of Washington, DC, AMY M. RUBIN, Acting Assistant
Director, International Trade Field Office, of New York,
New York; and BETH C. BROTMAN, Office of Assistant
2 GRK CANADA, LTD. v. US
Chief Counsel, United States Customs and Border Protec-
tion, of New York, New York.
______________________
Before PROST, Chief Judge, ∗ CLEVENGER and REYNA,
Circuit Judges.
Opinion for the court filed by Chief Judge PROST. Dissent-
ing opinion filed by Circuit Judge REYNA.
PROST, Chief Judge.
The United States appeals from the decision of the
United States Court of International Trade granting GRK
Canada Ltd.’s (“GRK”) cross-motion for summary judg-
ment that various screws imported by GRK were properly
classified as “self-tapping screws” under subheading
7318.14.10 of the Harmonized Tariff Schedule of the
United States (2008) (“HTSUS”). GRK Canada, Ltd. v.
United States, 884 F. Supp. 2d 1340, 1342 (Ct. Int’l Trade
2013). Because the Court of International Trade refused
to consider the use of the screws at any step of determin-
ing the classification of the subject articles at issue, we
vacate and remand for further proceedings consistent
with this opinion.
I
The imported articles at issue are GRK’s Model R4
Screws (“R4”), RT Composite Trim Head Screws (“RT”),
and Fin/Trim Head Screws (“Fin/Trim”). All these screws
are made with corrosion-resistant case-hardened steel,
and they are marketed for use in carpentry as building
material fasteners. R4 screws, inter alia, have a flat self-
∗
Sharon Prost assumed the position of Chief Judge
on May 31, 2014.
GRK CANADA, LTD. v. US 3
countersinking 1 head designed to cut away at the top
layer of the material as the screw is driven into place. By
contrast, RT and Fin/Trim screws are recommended for
fine carpentry and trim applications, and these models
have much smaller heads that are designed to prevent the
screws from cracking and splitting the target material.
RT screws, unlike Fin/Trim screws, include reverse
threading, a second set of threads near the head that
allows the head to be less noticeable along the surface of
the target material. Each GRK model is available in a
variety of lengths, diameters, and thread designs.
GRK imported the subject screws between January
2008 and August 2008. U.S. Customs and Border Protec-
tion (“CBP”) classified the screws at liquidation under the
HTSUS subheading 7318.12.00, “other wood screws.”
This classification carries a 12.5% ad valorem duty. GRK
protested, claiming that the screws should instead have
been classified under subheading 7318.14.10, “self-
tapping screws,” which would make them subject to a
6.2% ad valorem duty. The CBP denied GRK’s protests,
and GRK brought its challenge to the Court of Interna-
tional Trade, where the parties filed cross-motions for
summary judgment.
II
The Court of International Trade described this as “a
challenging case,” because the HTSUS does not specifical-
ly define either subheading. GRK, 884 F. Supp. 2d at
1345. It noted that the subheadings were eo nomine
provisions and that, as such, they described “an article by
a specific name, not by use.” Id. It further characterized
the government’s position as relying not only on the
1 “Countersinking” is the operation of enlarging and
beveling the rim of a drilled hole such that the screw is
inserted flush with the surface.
4 GRK CANADA, LTD. v. US
physical characteristics of screws but also the materials in
which they are used. The government argued that the
scope of the “other wood screws” subheading was screws
that were intended for use in wood or resilient materials
(e.g., wood composite), while “self-tapping screws” were
primarily intended to be used in materials such as steel,
concrete, and marble. The government further argued
that GRK’s screws were intended for use in wood or other
resilient materials, and were therefore correctly classified
as “other wood screws.” The Court of International Trade
concluded that, as such, the government’s argument
“depends heavily on use,” and “[t]his is a weakness that
ultimately undermines the Government’s proposed classi-
fication.” Id.
The court extensively analyzed what it called “use”
arguments advanced by the government. In particular, it
described the government’s argument as an attempt to
“convert an eo nomine provision into a use provision.” Id.
at 1353. The court’s analysis distinguished the case law
on which the government relied as relating to the prede-
cessor to the HTSUS, the Tariff Schedules of the United
States (TSUS). In TSUS cases, courts had considered the
use of articles in interpreting eo nomine provisions.
However, in the Court of International Trade’s view, such
case law was not binding under the HTSUS due to its “far
greater specificity, continuity, and completeness than the
TSUS.” Id. Therefore, it determined that it would focus
instead on physical characteristics in determining the
scope of the subheadings at issue and in subsequently
classifying the subject screws.
The Court of International Trade consequently estab-
lished “workable definitions” for the subheadings. It
construed “other wood screws” as “having (1) a flat, re-
cessed, oval, round, or slotted head, (2) partially un-
threaded shank, (3) coarse pitch spaced threads, and (4) a
sharp gimlet point, and may also have (5) potential modi-
fications to these criteria (such as sharper point angles or
GRK CANADA, LTD. v. US 5
case hardening) so long as the modified screw retains an
essential resemblance to a standard wood screw.” Id. at
1348. A “self-tapping screw” was construed as “being a
specially hardened screw that can cut or form its own
threads in the substrate without a separate tapping
operation. More specifically, self-tapping screws (1) are
made of case hardened steel, (2) have passed certain
performance requirements, and (3) do not require a sepa-
rate tapping operation.” Id. at 1352.
The Court of International Trade proceeded to then
apply the General Rules of Interpretation of the Harmo-
nized Tariff Schedule of the United States (“GRI”) to
classify the screws. Following the definitions that it had
established, the court described GRK’s screws as having
features of both self-tapping and wood screws. In particu-
lar, GRK screws are made of heat-treated, case hardened
steel, were manufactured to meet minimum torsional
strength requirements, and could cut mating threads
without separate tapping. GRK screws also resemble
standard wood screws while possessing modifications of
the various parameters that the court determined were
characteristic of the “other wood screws” classification.
The court began its analysis by determining that be-
cause it would be reasonable to conclude that the GRK
screws were both self-tapping and wood screws, the
analysis had to proceed beyond GRI 1. It then skipped
GRI 2, as it applies only to goods that are either unfin-
ished or incomplete. Based on its working definitions of
the subheadings, the court found that GRI 3(a) was
inapplicable, as the subheadings described articles at
similar levels of specificity. It also determined that GRI
3(b) did not to apply, as the screws were not composite
goods. The Court of International Trade finally settled on
the “rarely used” GRI 3(c), in which goods are classified
under the subheading that occurs last in numerical or-
der—in this case, self-tapping screws, which are classified
under subheading 7318.14.10 (by contrast to other wood
6 GRK CANADA, LTD. v. US
screws under 7318.12.00). Id. at 1356. Accordingly, it
ruled in favor of GRK, holding that the subject screws
should be classified as self-tapping screws.
The United States appeals, and we have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(5).
III
The first step of a classification decision is to deter-
mine the proper meaning of a tariff provision, which is a
question of law reviewed de novo. Universal Elecs. Inc. v.
United States, 112 F.3d 488, 491 (Fed. Cir. 1997). The
second step is to determine whether the subject imports
are within a possible heading, which is a question of fact
reviewed for clear error. Id. We review the Court of
International Trade’s grant of summary judgment as a
matter of law, deciding de novo the interpretation of tariff
provisions as well as whether there are genuine disputes
of material fact. Millennium Lumber Distribution Ltd. v.
United States, 558 F.3d 1326, 1328 (Fed. Cir. 2009).
In determining the proper meaning of a tariff provi-
sion, we have held that where the HTSUS does not ex-
pressly define a term, “the correct meaning of the term is
its common commercial meaning.” Arko Foods Int’l, Inc.
v. United States, 654 F.3d 1361, 1364 (Fed. Cir. 2011). To
determine the common commercial meaning, a court “may
rely upon its own understanding of terms used, and may
consult standard lexicographic and scientific authorities.”
Airflow Tech., Inc. v. United States, 524 F.3d 1287, 1291
(Fed. Cir. 2008). In particular, a court also refers to the
Explanatory Notes accompanying the HTSUS, which,
though not controlling, provide interpretive guidance.
E.T. Horn Co. v. United States, 367 F.3d 1326, 1329 (Fed.
Cir. 2004).
Neither party disputes that the tariff terms at issue in
this case—“other wood screws” and “self-tapping
screws”—are eo nomine provisions. “An eo nomine desig-
GRK CANADA, LTD. v. US 7
nation with no terms of limitation, will ordinarily include
all forms of the named article.” Carl Zeiss, Inc. v. United
States, 195 F.3d 1375, 1379 (Fed. Cir. 1999) (quoting
Hayes-Sammons Chem. Co. v. United States, 55 CCPA 69,
75 (1968)). Although an eo nomine provision generally
“describes the merchandise by name, not by use,” such a
provision may be limited by use when “the name itself
inherently suggests a type of use.” Id. As discussed
above, the Court of International Trade distinguished
prior analysis under the TSUS that incorporated use in
determining the meaning of related eo nomine provisions
and held that it “must instead operate from the premise
that the HTSUS provisions here are eo nomine and do not
implicate a use analysis.” Id. at 1354. On that basis, it
rejected the government’s argument that the names of the
tariff classifications inherently suggest that the kinds of
materials in which the screws are used should be consid-
ered as part of their common commercial meaning.
As an initial matter, our cases do not lead to the con-
clusion the Court of International Trade inferred that,
under the HTSUS, once a provision is regarded as eo
nomine because the heading describes goods by their
names, use should in no respect be weighed in classifying
subject articles.
First, we have recognized that under certain circum-
stances use may be of “paramount importance” in guiding
the court towards the proper commercial meaning of a
term. United States v. Quon Quon Co., 46 CCPA 70, 73
(1959). Quon Quon, for example, concerned a dispute over
the classification of wicker table tops intended for use as
patio furniture that were made of woven rattan as “bas-
kets.” Id. at 71. Our predecessor court determined that
just because the tariff term “baskets” designated articles
by name did not mean that use could not be considered in
properly classifying the articles as furniture. Id. at 73-74.
Of course, Quon Quon is a case determined under the old
TSUS that has now been replaced by the HTSUS, which,
8 GRK CANADA, LTD. v. US
as the Court of International Trade points out, includes
“far greater specificity, continuity, and completeness.”
GRK, 884 F. Supp. 2d at 1353 (quoting Edward D. Re,
Bernard J. Babb, and Susan M. Koplin, 8 West’s Fed.
Forms, National Courts § 13343 (2d ed. 2012)). Neverthe-
less, even under the HTSUS, classification decisions may
still require an analysis of the intended use of products.
For example, in CamelBak Prods., LLC v. United States,
649 F.3d 1361, 1368-69 (Fed. Cir. 2011), we cited Quon
Quon in reversing the Court of International Trade’s
determination that articles were “improved backpacks” on
the grounds that their principal intended use was for
hydration. We held that the “hydration component of the
subject articles is not merely incidental to the cargo
component but, instead, provides the articles with a
unique identity and use that removes them from the scope
of the eo nomine backpack provision.” Id. at 1369 (em-
phasis added). Therefore, even though Camelbak con-
cerned eo nomine HTSUS provisions, we recognized that
the use of the subject articles was an important aspect of
their identity and, consequently, the articles’ classifica-
tion. In such a case, the court’s inquiry includes the
subject article’s physical characteristics, as well as what
features the article has for typical users, how it was
designed and for what objectives, and how it is marketed.
Id. at 1367-69; see also Casio, Inc. v. United States, 73
F.3d 1095, 1098 (Fed. Cir. 1996).
Second, we have taken into account use as an element
of determining the proper meaning of classification
terms—even under the HTSUS. This is how we interpret
tariff designations whose common commercial meaning
includes the intended use of articles. For example, when
we previously considered the meaning of the eo nomine
provision “vanity cases,” we held that any article so
classified must have the “containing, carrying, or organiz-
ing” of cosmetics as its “predominant use.” Len-Ron Mfg.
Co., Inc. v. United States, 334 F.3d 1304, 1311 (Fed. Cir.
GRK CANADA, LTD. v. US 9
2003). By contrast, in a case like Carl Zeiss, neither the
common meaning of the term itself—“compound optical
microscopes”—nor the term’s use in trade or commerce
excluded microscopes that might be used in surgery. 195
F.3d at 1379. Therefore, the use may be considered as
part of the definition of eo nomine provisions, where, even
if the eo nomine provision describes goods with respect to
their names, the name itself may “inherently suggest[] a
type of use.” Id. at 1379. 2
In sum, even under the HTSUS, use of subject articles
may, under certain circumstances, be considered in tariff
classification according to eo nomine provisions. This may
occur at the stage of establishing the proper meaning of a
designation when a provision’s name “inherently suggests
a type of use.” Id. Or, once tariff terms have been de-
fined, it may be the case that the use of subject articles
defines an articles’ identity when determining whether it
fits within the classification’s scope. See, e.g., CamelBak,
649 F.3d at 1379.
IV
The case at hand concerns two tariff provisions that
must be interpreted, namely “other wood screws” and
“self-tapping screws.” As an initial matter, our common
understanding of “other wood screws” seems naturally
aligned with the intended use of screws. “Wood screws,”
as designated by the tariff provision, are not screws made
2 Classification of subject articles may then need to
reach the Additional Rules of Interpretation (“ARI”),
which distinguish the treatment of articles based on
whether tariff classifications are controlled by principal or
actual use. Primal Lite, Inc. v. United States, 182 F.3d
1362, 1363 (Fed. Cir. 1999); see also StoreWALL, LLC v.
United States, 644 F.3d 1358, 1365-67 (Fed. Cir. 2011)
(Dyk, J., concurring).
10 GRK CANADA, LTD. v. US
of wood—but rather metal screws used to fasten wood.
Even without resort to any extrinsic authority, it is evi-
dent that the material with which the screw is intended to
be used is inherent within the name of the eo nomine
tariff classification “other wood screw.”
The HTSUS Explanatory Notes, Fourth Edition
(2007) for Heading 73.18 also expressly reference materi-
als in which the screws are to be used. “Screws for wood,”
according to the Explanatory Notes:
Screws for wood differ from bolts and screws for
metal in that they are tapered and pointed, and
they have a steeper cutting thread since they have
to bite their own way into the material. Further,
wood screws almost always have slotted or re-
cessed heads and they are never used with nuts.
...
The heading includes self-tapping (Parker)
screws; these resemble wood screws in that they
have a slotted head and a cutting thread and are
pointed or tapered at the end. They can therefore
cut their own passage into thin sheets of metal,
marble, slate, plastics, etc.
J.A. 710.
As the Explanatory Notes indicate, the physical char-
acteristics of “wood screws” and “self-tapping screws” will
generally be similar. Indeed, self-tapping screws “resem-
ble” wood screws in that they include slotted heads and
cutting threads, and the screws “bite their way into the
material.” However, self-tapping screws are intended to
cut into metal and slate.
Definitions of the terms in engineering standards fur-
ther support meanings that include the screws’ intended
use. For example, the ANSI/ASME Standard B18:12-
2001 (Glossary of Terms for Mechanical Fasteners) indi-
GRK CANADA, LTD. v. US 11
cates that “a wood screw . . . is designed to produce a
mating thread when assembled into wood and other
resilient materials.” J.A. 660. Conversely, “a tapping
screw . . . is designed to form or cut a mating thread in
one or more parts to be assembled.” J.A. 662.
Prior decisions of the United States Customs Court
involving predecessors to the relevant provisions in the
TSUS also support an understanding of wood screw that
implicates use. In these cases, the Customs Court specifi-
cally confronted the problem of distinguishing between
TSUS designations of “wood screws” and screws made “of
iron or steel.” The Customs Court determined that when
considering the eo nomine provision for “wood screws” it
should include the primary use of the screws at issue as a
factor in determination of its proper classification. Trans-
Atl. Co. v. United States, 68 Cust. Ct. 105, 108 (1972); see
also David Komisar & Son, Inc. v. United States, 77 Cust.
Ct. 88 (1976) (“A machine screw will make its own
threads in metal and a wood screw will do the same in
wood.”). To be sure, the tariff designations changed in the
HTSUS; in particular, “self-tapping screws” is a new
subheading. However, the principle behind the designa-
tion of different screw types remains the same: the mate-
rial that screws are principally intended to pass through
and fasten is an important aspect of how screw types are
defined.
Indeed, the end result of the Court of International
Trade’s analysis itself suggests the error in refusing to
consider use of subject articles. The HTSUS has been
modernized to reflect current commercial practice, and its
hierarchical classification is more specific and carefully
designed than the TSUS. The court nevertheless still
ended up at the rarely used “tie-breaker” step of GRI 3(c).
This was the inevitable result of its approach to distin-
guish between the relevant subheadings.
12 GRK CANADA, LTD. v. US
According to its working definitions, effectively the
difference between an “other wood screw” and a “self-
tapping screw” is that the latter is “specially hardened,”
meaning that it is made of case hardened steel and has
“passed certain performance requirements.” GRK, 884 F.
Supp. 2d at 1352. Therefore, following that definition, a
conventional wood screw transforms to a “self-tapping
screw” once the screw is made of a hardened material, a
relatively trivial change that could be motivated by desir-
ing improved characteristics in cutting or anchoring
screws in wood. 3
In sum, the Court of International Trade defined self-
tapping screws as simply improved forms of wood screws.
But, that cannot be the only difference of these eo nomine
provisions. The objective of an eo nomine designation is to
capture all forms of the named article, even including
articles that have “been improved or amplified but whose
essential characteristic is preserved or only incidentally
altered.” Casio, 73 F.3d at 1098. Therefore, an eo nomine
classification within HTSUS must capture all forms of a
named good, including improvements that do not change
the essential characteristic of the articles. Consequently,
to be workable, HTSUS provisions must be defined dis-
tinctly enough to allow the classification of improved
forms of goods—provided that such improvements are not
fundamental changes. The use of goods may be an im-
portant aspect of the distinction of certain eo nomine
provisions, in particular, where, as here, the name of the
3 The Court of International Trade also determined
that self-tapping screws, unlike other wood screws, must
be designed to pass performance requirements. It is not
clear why wood screws generally would not be tested for
their strength and ability to function in wood. Indeed, the
advertising for GRK Model R4 screws shows data for the
screws’ performance in mating wood to wood. J.A. 408.
GRK CANADA, LTD. v. US 13
provisions refers directly to the use of subject articles.
This is why, even within the context of the HTSUS, we
should not be “so trusting of our own notions of what
things are as to be willing to ignore the purpose for which
they were designed and made and the use to which they
were actually put.” Quon Quon, 46 CCPA at 73.
The record is replete with evidence that the common
commercial meanings of “other wood screws” and “self-
tapping screws” include the materials with which the
screws are intended and designed for use. While GRK’s
screws may be more difficult to characterize than conven-
tional screw designs, there is no reason to make tariff
classification more complicated by unduly ignoring such a
critical factor at either step of the analysis—whether
defining the legal meaning of the tariff terms at issue or
determining the proper classification of the subject arti-
cles.
V
Accordingly, we vacate the Court of International
Trade’s findings and subsequent determination on the
proper classification of the subject article, and remand for
further proceedings consistent with this opinion.
VACATED AND REMANDED
United States Court of Appeals
for the Federal Circuit
______________________
GRK CANADA, LTD.,
Plaintiff-Appellee,
v.
UNITED STATES,
Defendant-Appellant.
______________________
2013-1255
______________________
Appeal from the United States Court of International
Trade in No. 09-CV-0390, Senior Judge Judith M. Barzi-
lay.
______________________
REYNA, Circuit Judge, dissenting.
The majority holds that the Court of International
Trade (“CIT”) erred in refusing to consider intended and
principal use to determine the common meaning of two eo
nomine tariff classifications under the Harmonized Tariff
Schedule of the United States (“HTSUS”). I do not agree
that principal use should be considered in an eo nomine
analysis. For this and other reasons set forth below, I
respectfully dissent.
I
A foundational tenet of tariff classification law is that
eo nomine provisions are distinct from use provisions and
2 GRK CANADA, LTD. v. US
do not depend on the principal or actual use of the im-
ported merchandise in the United States. 1 The majority
recognizes that the two tariff subheadings at issue in this
case—7318.12.00, “other wood screws,” and 7318.14.10,
“self-tapping screws”—are eo nomine provisions, not
principal or actual use provisions. The majority neverthe-
less imports a principal use analysis into its construction
of the eo nomine subheadings by requiring consideration
of the intended use of the named articles. As a result, the
majority conflates two very different categories of tariff
classifications. In holding that the CIT erred in failing to
consider the intended or principal use of “other wood
screws” and “self-tapping screws,” the majority ignores a
fundamental rule of interpretation of the harmonized
tariff classification system.
The majority misunderstands the basic distinction be-
tween eo nomine provisions and use provisions. An eo
nomine provision describes an article by a specific name,
not by use, and includes all forms of the named article. 2
It is improper to import a use limitation into an eo nomine
provision unless the name of the good inherently suggests
a type of use. Carl Zeiss, 195 F.3d at 1379. A use provi-
sion, on the other hand, describes an article by its princi-
pal or actual use in the United States at the time of
importation. Use provisions are governed by the U.S.
Additional Rules of Interpretation (“ARI”), and principal
use is defined as the use that “exceeds any other single
use” in the United States. Aromont, 671 F.3d at 1312;
ARI 1(a).
1 Aromont USA, Inc. v. United States, 671 F.3d
1310, 1312 (Fed. Cir. 2012); Carl Zeiss, Inc. v. United
States, 195 F.3d 1375, 1379 (Fed. Cir. 1999).
2 Kahrs Int’l, Inc. v. United States, 713 F.3d 640,
645-46 (Fed. Cir. 2013); CamelBak Prods., LLC v. United
States, 649 F.3d 1361, 1364-65 (Fed. Cir. 2011).
GRK CANADA, LTD. v. US 3
The majority faults the CIT for adhering to the dis-
tinction between eo nomine and use provisions and reads
the CIT’s decision as inferring that any consideration of
use in an eo nomine analysis is prohibited:
As an initial matter, our cases do not lead to the
conclusion the Court of International Trade in-
ferred that, under the HTSUS, once a provision is
regarded as eo nomine because the heading de-
scribes goods by their names, use should in no re-
spect be weighed in classifying subject articles.
Maj. Op. at 7. Yet, this is not what the CIT determined.
To the contrary, the CIT correctly noted that “a use provi-
sion implicates a different analytical framework than does
an eo nomine provision” and that a use limitation should
not be read into an eo nomine provision unless inherent in
the provision’s common commercial meaning. 3 Far from
holding that use can never be considered, the CIT con-
cluded only that it “cannot support this instance of read-
ing use into an eo nomine tariff provision under the
HTSUS.” Id. (emphasis added).
The majority further condemns the CIT’s reliance on
General Rule of Interpretation (“GRI”) 3(c), implying that
the CIT should have resorted to intended use to break the
tie between the two subheadings. Maj. Op. at 11. The
majority’s approach ignores that we are bound to apply
the GRIs as we would any other statute. 4 As we have
often stated in our case law, the GRIs are the interpretive
framework that govern tariff classifications. 5 The rules
3 GRK Can., Ltd. v. United States, 884 F. Supp. 2d
1340, 1353 (Ct. Int’l Trade 2013).
4 BASF Corp. v. United States, 482 F.3d 1324, 1325-
26 (Fed. Cir. 2007).
5 See, e.g., BenQ Am. Corp. v. United States, 646
F.3d 1371, 1376 (Fed. Cir. 2011).
4 GRK CANADA, LTD. v. US
must be applied in numerical order, and each rule entails
a different analysis and consideration of different factors.
Indeed, GRI 3(c) exists for the very fact pattern in this
case, in which the imported goods are prima facie classifi-
able under more than one heading or subheading. Stated
differently, intended use does not become relevant to the
eo nomine analysis just because an imported article
satisfies more than one eo nomine classification. Hence, it
is incorrect to fault the CIT for sequentially proceeding
through the GRIs without identifying which rule should
have applied.
The majority relies on United States v. Quon Quon
Company for its argument that use may be of “paramount
importance” in construing an eo nomine provision. 6 This
reliance is misplaced. Quon Quon is a 50-year-old case
from the Court of Customs and Patent Appeals (“CCPA”)
that was interpreting a provision of the old Tariff Sched-
ule of the United States (“TSUS”). While the HTSUS is
governed by the GRIs and ARIs, the TSUS operated
under an entirely different set of interpretive rules,
known as the General Headnotes and Rules of Interpreta-
tion. 7 We have held that prior TSUS cases are not bind-
ing on classifications made under the HTSUS. 8 Yet, even
under the TSUS, consideration of use was generally
precluded in construing eo nomine provisions. 9 The
6 Maj. Op. at 7 (citing United States v. Quon Quon
Co., 46 C.C.P.A. 70, 73 (1959)).
7 See, e.g., Robert Bosch Corp. v. United States, 63
Cust. Ct. 187, 188-89 (1969).
8 JVC Co. of Am. v. United States, 234 F.3d 1348,
1355 (Fed. Cir. 2000).
9 Pistorino & Co., Inc. v. United States, 66 C.C.P.A.
95, 96 (1979) (noting that the “general rule precluding
consideration of use in eo nomine designations applies
here”).
GRK CANADA, LTD. v. US 5
majority thus fails to base its analysis in the current
interpretive framework—the GRIs; it also provides an
inaccurate and incomplete analysis of the now-defunct
TSUS framework.
The majority also relies on CamelBak Products, LLC
v. United States for the proposition that the intended use
of products may need to be considered even under the
HTSUS. 10 To be sure, CamelBak articulated a test to
determine whether an additional component or function of
an article, otherwise named by an eo nomine provision,
substantially transforms the essential characteristic of
the article such that it is no longer classifiable under the
eo nomine provision. 11 CamelBak allows use to be consid-
ered only within the context of the substantial transfor-
mation test, which addresses the identity of the imported
article, and does not stand for the idea that use should be
considered in defining the proper meaning of an eo nomi-
ne heading as a matter of law. CamelBak cannot fairly be
read to obscure the stark distinction between use provi-
sions and eo nomine provisions.
Indeed, the majority’s articulation of when use should
be considered in an eo nomine analysis effectively con-
verts eo nomine provisions into use provisions. The
majority states that eo nomine provisions may “require an
analysis of the intended use of products,” but does not
explain when such an analysis is required or even how
“intended use” differs from principal use as defined by
ARI 1(a). Maj. Op. at 8. In fact, the majority asserts that
consideration of use in defining an eo nomine provision
10 Maj. Op. at 8 (citing CamelBak, 649 F.3d at 1368-
69).
CamelBak, 649 F.3d at 1367 (providing “several
11
analytical tools or factors we can use to assess whether
the subject articles are beyond the reach of the eo nomine
backpack provision”).
6 GRK CANADA, LTD. v. US
may require reaching the ARIs. Maj. Op. at 9 n.2. This
conclusion is in direct conflict with our precedential
classification cases, which are minimally addressed by the
majority. 12 In R.T. Foods, Inc. v. United States, we reject-
ed the importer’s argument that the CIT should have
performed a principle use analysis to define the eo nomine
provision at issue, noting that a “‘principle use’ analysis is
only used for those headings ‘controlled by use,’ as op-
posed to eo nomine headings.” 13 Our prior law demon-
strates that we have consistently cautioned against
importing use limitations when defining the proper mean-
ing of an eo nomine provision as a matter of law. 14 The
majority fails to address this precedent in reaching its
conclusion, which erases the clear distinction between eo
nomine provisions and use provisions.
II
The majority further errs by concluding that the
common meaning of “other wood screws” and “self-tapping
screws” inherently suggests a type of use. The majority
first weighs that its own understanding of the term “other
wood screws” inherently suggests intended use, even
“without resort to any extrinsic authority.” Maj. Op. at
10. But tariff classification is not patent claim construc-
tion, and “extrinsic authority” is often necessary in tariff
classification cases to divine a term’s common meaning. 15
12 See, e.g., R.T. Foods, Inc. v. United States, ---F.3d-
--, No. 2013-1188, 2014 WL 2981004 (Fed. Cir. July 3,
2014); Link Snacks, Inc. v. United States, 742 F.3d 962
(Fed. Cir. 2014); Kahrs, 713 F.3d 640; Aromont, 671 F.3d
1310; BASF, 482 F.3d 1324.
13 R.T. Foods, 2014 WL 2981004, at *4.
14 Id. (quoting Kahrs, 713 F.3d at 646).
15 See, e.g., Rocknel Fastener, Inc. v. United States,
267 F.3d 1354, 1356-57 (Fed. Cir. 2001) (“To ascertain the
common meaning of a term, a court may consult dictionar-
GRK CANADA, LTD. v. US 7
While precedent allows us to rely to some extent on our
own understanding of the term, 16 we cannot ignore objec-
tive evidence showing that the term’s common meaning
does not comport with our own unaided understanding.
The majority also relies on decisions of the U.S. Cus-
toms Court to support its conclusion that the name “wood
screws” inherently suggests use. 17 These cases interpret
a subheading of the old TSUS, titled “wood screws (includ-
ing lag screws or bolts) of base metal.” The U.S. Customs
Court, however, preceded the CIT as the trial-level court
for trade cases and is thus not binding precedent. 18 As
noted above, the TSUS operated under a different set of
interpretive rules, 19 and prior TSUS cases are not disposi-
tive, although they may be helpful in interpreting identi-
cal language in the HTSUS. 20 Here, the relevant HTSUS
language is far from identical to the old TSUS provisions.
The TSUS subheading for “wood screws (including lag
screws or bolts) of base metal” was changed to the six-
digit subheading “other wood screws,” and the HTSUS
adopted a later six-digit subheading for “self-tapping
screws.” The addition of the term “other” in the “other
wood screws” subheading indicates that it is now a resid-
ual provision designed to capture wood screws not specifi-
ies, scientific authorities, and other reliable information
sources and lexicographic and other materials.” (internal
quotations omitted)).
16 See Len-Ron Mfg. Co. v. United States, 334 F.3d
1304, 1309 (Fed. Cir. 2009).
17 See Maj. Op. at 11 (citing Trans-Atl. Co. v. United
States, 68 Cust. Ct. 105, 108 (1972); David Komisar &
Son, Inc. v. United States, 77 Cust. Ct. 88, 89 (1976)).
18 See Deckers Corp. v. United States, 752 F.3d 949,
959 (Fed. Cir. 2014).
19 See, e.g., Robert Bosch, 63 Cust. Ct. at 188-89.
20 JVC Co., 234 F.3d at 1355.
8 GRK CANADA, LTD. v. US
cally classified elsewhere. 21 Hence, the majority’s reli-
ance on 40-year-old precedent interpreting different
classification terms is neither dispositive nor helpful.
The relevant industry and lexicographic sources de-
fine “other wood screws” and “self-tapping screws” in
terms of their design characteristics and physical proper-
ties, not their principal or intended uses, as the majority
suggests. Consider the standards promulgated by the
American National Standards Institute (“ANSI”), which
provide detailed, multi-page specifications on the dimen-
sions, length, thread, point, head, material, and other
characteristics of wood screws and tapping screws. 22 The
CIT discussed in detail these standards, which state,
among other things, that self-tapping screws are “case
hardened to meet the performance requirements set forth
in these specifications.” J.A. 643. Had the majority also
examined these standards, it would have seen that these
characteristics are far from “relatively trivial changes,”
but instead speak to the very features that define each
screw type. Maj. Op. at 12.
The majority does consider the Glossary of Terms
promulgated by the American Society of Mechanical
Engineers (“ASME”), but it takes an isolated reading of
these definitions to support its assertion that intended
use must be considered. The ASME Glossary of Terms
defines a “tapping screw” and a “wood screw” as follows:
3.1.2.22 tapping screw: has a slotted, recessed, or
wrenching head and is designed to form or cut a
21 See, e.g., Deckers, 752 F.3d at 951 (describing an
“other” provision as applying to merchandise that cannot
be “classified under a more specific subheading”).
22 See J.A. 612-20 (ANSI B.18.6.1 describing “wood
screws”); J.A. 621-48 (ANSI B.18.6.4 describing “thread-
cutting and thread-forming tapping screws”).
GRK CANADA, LTD. v. US 9
mating thread in one or more of the parts to be
assembled. Tapping screws are generally availa-
ble in various combinations of the following head
and screw styles: fillister, flat, flat trim, hexagon,
hexagon washer, oval, oval trim, pan, round, and
truss head styles with thread-forming screws,
Types A, B, BA, BP, and C, or thread cutting
screws, Types D, F, G, T, BF, BG, and BT as illus-
trated and described below.
****
3.1.2.30 wood screw: a thread forming screw hav-
ing a slotted or recessed head, gimlet point, and a
sharp crested, coarse pitch thread, and generally
available with flat, oval, and round head styles. It
is designed to produce a mating thread when as-
sembled into wood or other resilient materials.
J.A. 660, 662. The majority fails to address the detailed
descriptions provided by these definitions, which outline
the head, point, and threading of each screw type, and
instead chooses to latch onto the definitions’ statements
about the function and capabilities of the screws as evi-
dence that intended use must be considered. Maj. Op. at
10-11. These statements, however, do not by themselves
implicate a principal or intended use analysis. Describing
a named article by function or capability is not the same
as limiting the eo nomine provision to that article’s prin-
cipal or intended use in the United States marketplace.
The majority commits similar error in its analysis of
the Explanatory Notes for heading 7318, which are pub-
lished by the World Customs Organization and provide
non-binding interpretive guidance. Kahrs Int’l, 713 F.3d
at 644-45. While the majority asserts that the Explanato-
ry Notes “expressly reference materials in which the
screws are to be used,” the majority reads too much into
the Notes by concluding that these references require
consideration of intended use. Maj. Op. at 10. The major-
10 GRK CANADA, LTD. v. US
ity argues that the term “screws for wood” implies intend-
ed use but ignores that the Explanatory Notes actually
describe wood screws in terms of their physical character-
istics—i.e., they are “tapered and pointed, and they have a
steeper cutting thread since they have to bite their own
way into the material.” J.A. 710.
The majority also relies on the Explanatory Notes’
statement that self-tapping screws can “cut their own
passage into thin sheets of metal, marble, slate, plastics,
etc.” J.A. 710. As the CIT noted, however, this statement
is not a clear limitation of the subheading’s scope, but
instead provides a non-exhaustive list of various materi-
als into which self-tapping screws can cut their own
passage. Examples in the Explanatory Notes are illustra-
tive and do not provide a valid basis for limiting the scope
of the subheadings themselves. 23
Finally, Customs’ own publications and prior practice
support construing the subheadings for “other wood
screws” and “self-tapping screws” in terms of physical
properties and design characteristics, not principal or
intended use. Customs’ policy since 1995 has been that
the most “objectively verifiable standard” for differentiat-
ing between threaded fasteners is to employ industry
dimensional standards. 24 If a fastener did not fit squarely
into a recognized standard, Customs applied the closest
conforming standard, and if none existed, it would consid-
er the majority of the fastener’s “design characteristics.” 25
Hence, Customs has traditionally classified fasteners
23Rubie’s Costume Co. v. United States, 337 F.3d
1350, 1359 (Fed. Cir. 2003).
24 Headquarters Ruling Letter 956811 (Apr. 14,
1995).
25 Headquarters Ruling Letter 967919 (Jan. 24,
2006).
GRK CANADA, LTD. v. US 11
under heading 7314 according to their physical properties
and design characteristics, not intended use.
III
In sum, the majority unnecessarily confuses the tariff
classification analysis by requiring the CIT to consider
intended use when construing the eo nomine subheadings.
The majority blurs the boundaries between eo nomine and
principal use provisions in ways that will promote confu-
sion and error in future classification cases. For these
reasons, I dissent.