American Hardboard Ass'n v. United States

12 Ct. Int'l Trade 714
CourtUnited States Court of International Trade
DecidedAugust 1, 1988
DocketCourt No. 83-9-01301
StatusPublished

This text of 12 Ct. Int'l Trade 714 (American Hardboard Ass'n v. United States) is published on Counsel Stack Legal Research, covering United States Court of International Trade primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Hardboard Ass'n v. United States, 12 Ct. Int'l Trade 714 (cit 1988).

Opinion

DiCárlo, Judge:

Plaintiff, a trade association of hardboard manufacturers, challenges the United States Customs Service (Customs) classification of merchandise imported from Canada by party-in-interest, MacMillan Bloedel Limited. Customs initially classified the merchandise as "[bjuilding boards not specially provided for, whether or not face finished: [ojther boards of vegetable fibers (including wood fibers) — [ojther,” under item 245.90 of the Tariff Schedules of the United States (TSUS), but on remand following a trial determined the merchandise to be classifiable as "[bjuilding boards not specially provided for, whether or not face finished: [ljaminated boards, bonded in whole or in part, or impregnated, with synthetic resins,” under item 245.80, TSUS. See American Hardboard Ass’n v. United States, 10 CIT 779, 651 F. Sup. 1441 (1986).

Plaintiff claims the merchandise is properly classifiable as "[hjardboard, whether or not face finished: [ojther,” under item 245.30, TSUS, or alternatively as "[ajrticles not specially provided for, of wood,” under item 207.00, TSUS. Party-in-interest claims the merchandise is properly classifiable under item 245.90, TSUS, as Customs originally determined.

Plaintiff initiated this action by filing a petition pursuant to 19 U.S.C. § 1516(a) (1982), and the Court has jurisdiction under 28 U.S.C. § 1581(b) (1982). The Court finds the merchandise properly classifiable under item 245.80, TSUS.

Discussion

The merchandise is either number one prefinished or number one bandsawn Champlain lap siding (lap siding). It is a plank of hardboard, Vie-inch thick and either 9 or 12 inches wide. Approximately one inch from the bottom, a hard plastic locking strip or "spline” is fixed into a groove in the back of each plank. The top edge of each plank is machined to form a groove or "rabbet,” which fits into the spline of the plank above.

[715]*715The hardboard plank is manufactured through a wet process whereby wood fibers are combined with water, phenolic resin, wax and alum. This combination is fed onto a moving screen and is called a "wet mat.” Compregnite is sprayed onto the surface fibers of the wet mat to stabilize the fibers against moisture. A newsprint paper face coated with linseed oil is then applied to the wet mat of wood fiber. At this point the mat is still approximately 70 percent water. The mat then goes on to the loading elevator and into a press. Through the combination of heat and pressure, the mat is formed into a hardboard plank.

The lap siding can have an embossed texture (bandsawn) in order to appear rough hewn or it can be smooth. In either case, the front face, bottom and top edges are prefinished by painting.

Plaintiff first contends the lap siding is hardboard classifiable in the eo nomine provision for hardboard, item 245.30, TSUS.

An eo nomine designation is one which describes a commodity by a specific name, usually one well known to commerce. United States v. Bruckmann, 65 CCPA 90, C.A.D. 1211, 582 F.2d 622 (1978). An eo nomine provision includes all forms of the named article unless limited by its terms, or contrary to legislative intent, judicial decisions, long standing administrative practice, or demonstrated commercial designation. See, e.g., Crosse & Blackwell Co. v. United States, 36 CCPA 33, C.A.D. 393 (1948). The lap siding is made of hardboard, so the Court must consider the scope of the eo nomine provision for hardboard in order to determine whether Congress intended to include merchandise such as this in that provision.

Defendant argues the phrase "whether or not face finished” limits the forms of hardboard classifiable under item 245.30, TSUS, claiming Congress through this language intended to exclude any form of hardboard which had been advanced by means other than face finishing.

Headnote 2, Part 3, Schedule 2, TSUS, states that the "term 'face finished’, as applied to the boards and panels provided for in this part [Part 3], means that one or both surfaces of a panel or board have been treated with creosote or other wood preservatives, or with fillers, sealers, waxes, oils, stains, varnishes, paints or enamels, or have been overlaid with paper, fabric, plastics, base metal or other material.” (Emphasis in original).

The legislative history of the hardboard provision contained in the 1960 Tariff Classification Study indicates the phrase "whether or not face finished” was added to clarify that the eo nomine provision for hardboard was intended to cover hardboard even though it had undergone the various treatments described in the definition of "face finished:”

[716]*716The products covered in this part are sometimes finished with materials such as varnish, lacquers, paint, plastic, or metal. In order that such products might be adequately covered in this part, the term 'face finished’ has been introduced and defined in headnote 1(f) [now Headnote 2, Part 3, Schedule 2, TSUS].

4 Tariff Classification Study 64 (1960) (emphasis added). The study indicates that the phrase "whether or not face finished”, rather than as words of limitation, was intended to expand the term hardboard to include the various described processes, which had been creating ambiguities and uncertainties due to the many paragraphs in the previous tariff schedule providing separate classifications for hardboard subjected to different processes. See id. at 63-67.

The Court does not find the phrase "whether or not face finished” to be restrictive language excluding from the eo nomine provision forms of hardboard which have undergone processing other than that defined as face finishing. Cf. Norman G. Jensen, Inc. v. United States, 2 CIT 198 (1981) (descriptive phrase "ground or unground” is an extension rather than a restriction on eo nomine provision for "screenings”).

The study indicates, however, that the hardboard designated eo nomine is a basic, fungible material capable of being used for a variety of functions:

Hardboard is used chiefly in construction, in cabinet and millwork, in furniture and fixtures, and other fabricated and industrial products, in transportation equipment, for display purposes, in games, toys, and sporting products; also, a high-density type of hardboard is used for dies in spinning and forming light-gage metals, for jigs and templates, and for structural electrical-insulation material.

4 Tariff Classification Study 67. This legislative history indicates that at some point the material designated as hardboard and provided for eo nomine under item 245.30, TSUS, may no longer be within that classification because it has been advanced beyond a basic, fungible material and has become a new and different article of commerce.

Considering hardboard as a basic material which becomes another product due to advancements is analogous to those cases involving the question of whether merchandise made from lumber is classifiable as lumber or as some new article of commerce made from lumber. See, e.g., Permagrain Prods.

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Related

Permagrain Products, Inc. v. The United States
791 F.2d 914 (Federal Circuit, 1986)
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847 F.2d 786 (Federal Circuit, 1988)
Permagrain Products, Inc. v. United States
623 F. Supp. 1246 (Court of International Trade, 1985)
United States v. Bruckmann
582 F.2d 622 (Customs and Patent Appeals, 1978)

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12 Ct. Int'l Trade 714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-hardboard-assn-v-united-states-cit-1988.