from the United States Court of International Trade in No.
1:09-cv-00390, Judge Claire R. Kelly.
E. Ziegler, Montgomery, McCracken, Walker & Rhoads, LLP,
Philadelphia, PA, argued for plaintiff-appellee.
Stephen Andrew Josey, International Trade Field Office,
Commercial Litigation Branch, Civil Division, United States
Department of Justice, New York, NY, argued for
defendant-appellant. Also represented by Jason M. Kenner,
Benjamin C. Mizer, Jeanne E. Davidson, Amy M. Rubin.
Prost, Chief Judge, Reyna, and Stoll, Circuit Judges
United States appeals from a final judgment of the United
States Court of International Trade granting GRK Canada,
Ltd.'s motion for summary judgment 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.
Because the Court of International Trade properly classified
GRK's imported screws, we affirm.
matter returns to the court following remand to the Court of
International Trade. GRK Can., Ltd. v. United States
("GRK IV"), 180 F.Supp.3d 1260 (Ct.
Int'l Trade 2016); see also GRK Can., Ltd. v. United
States ("GRK I"), 884 F.Supp.2d 1340
(Ct. Int'l Trade 2013) vacated and remanded, 761
F.3d 1354 (Fed. Cir. 2014) ("GRK II"),
reh'g denied, 773 F.3d 1282 (Fed Cir. 2014) (per
curiam) ("GRK III").
January 2008 and August 2008, GRK imported three types of
screw fasteners into the United States. GRK IV, 180
F.Supp.3d at 1263. The three types of screws at issue are
GRK's Model R4 Screws ("R4"), RT Composite Trim
Head Screws ("RT"), and Fin/Trim Head Screws
("Fin/Trim"). Id.. GRK's screws are used
to mate dissimilar materials, for example, to mate plastics
or dense composite materials to wood. Id. at 1264.
To that effect, all three GRK screws are made with
corrosion-resistant, case-hardened steel and "can be
used to penetrate materials such as sheet metal, plastics,
medium-density fiberboard, polyvinyl chloride (PVC) board,
cement fiberboard, melamine, arborite, and other man-made
composite materials." Id. (internal quotation
GRK's importation of the subject screws, United States
Customs and Border Protection ("Customs")
classified the screws as "other wood screws" under
subheading 7318.12.00 of the Harmonized Tariff Schedule of
the United States ("HTSUS"),  subject to an
import duty of 12.5% ad valorem. Id. at
1263. GRK protested, claiming that the screws should have
been classified under subheading 7318.14.10 as
"self-tapping screws, " a classification that
carries a 6.2% ad valorem duty. Customs denied
GRK's protest. Id. at 1272.
appealed Customs' decision to the Court of International
Trade, which granted summary judgment in GRK's favor. The
court determined, as eo nomine provisions that
describe all forms of an article by a specific name, the
subheadings for "other wood screws" and
"self-tapping screws" cannot be interpreted based
on use "[a]bsent limiting language or contrary
legislative intent." GRK I, 884 F.Supp.2d at
1345. Applying the General Rules of Interpretation
("GRIs"), the Court of International Trade defined
the classification scope of "other wood screws" and
"self-tapping screws" without accounting for use.
Id. at 1348, 1351-52. The court found, based on
their design characteristics, that all three of GRK's
imported screws are properly classified as "self-tapping
screws" under subheading 7318.14.10. GRK I, 884
F.Supp.2d at 1356. The Government appealed.
appeal, we held that the Court of International Trade erred
in "refus[ing] to consider the use of the screws at any
step of determining the classification of the subject
articles at issue." GRK II, 761 F.3d at 1355.
We instructed the Court of International Trade to consider
use in interpreting the common and commercial meaning of
HTSUS terms (1) where the name of the tariff provision itself
inherently suggests a type of use, or (2) "once the
tariff terms have been defined . . . the use of subject
articles defines an article['s] identity when determining
whether it fits within the classification's scope."
Id. at 1359 (first citing CamelBak Prods., LLC
v. United States, 649 F.3d 1361, 1369 (Fed. Cir. 2011);
then citing Carl Zeiss, Inc. v. United States, 195
F.3d 1375, 1379 (Fed. Cir. 1999)). Accordingly, we vacated
the judgment of the Court of International Trade and remanded
for the court to consider use in both "defining the
legal meaning of the tariff terms at issue" and in
"determining the proper classification of the subject
articles." Id. at 1361.
remand, the Court of International Trade ordered pretrial
discovery limited to the issues of "intended use, "
"principal use, " and "actual use" of
GRK's imported screws. GRK IV, 180 F.Supp.3d at
1262. Based on this additional discovery, the court
recognized that the R4 screw is used in "wood, particle
board, plastic, sheet metal, cement fiberboard and wood
decking, pressure treated lumber decking, cedar and redwood
decking, " and "can be used in woodworking and
other applications and is designed to affix thin metal to
wood." Id. at 1265. With respect to the RT and
Fin/Trim screws, the court noted that these screws are
"used for most fine carpentry applications and trim
applications, " and can also be used "to anchor
composite decking to wood beams." Id.
Court of International Trade undertook a new classification
analysis. As a threshold determination on whether to apply
the GRIs or the U.S. Additional Rules of Interpretation
("ARIs"),  the court determined that neither tariff
term "other wood screws" nor "self-tapping
screws" were so controlled by use such that the court
would be required to consult the ARIs. Id. at 1271.
The court found that the terms' physical characteristics
"coincide to such an extent that the court must consider
the intended use or design implicated by the tariff terms in
addition to the physical characteristics" to distinguish
between the terms' common and commercial meanings.
Id. Therefore, the court applied the GRIs, as it had
in GRK I, and additionally considered the subject
screws' intended use. Specifically, the Court of
International Trade considered "how a typical user would
use the product, and its impact on defining the tariff
term." Id. at 1277. It found that the
Explanatory Notes suggest "that self-tapping screws are
meant to be used to fasten a non-fibrous material
(i.e., 'sheets of metal, marble, slate,
plastics') to some other material." Id. In
contrast, the court found that "[n]early all dictionary
definitions suggest that wood screws are intended to be used
to affix wood to wood or to other fibrous materials."
Id.; see id. at 1278 (first citing
McGraw-Hill Dictionary of Scientific and Technical
Terms 2302 (6th ed. 2003); then citing Academic
Press Dictionary of Science and Technology 2378
(Christopher Morris ed., 1992)). The court rejected any
notion that self-tapping screws are somehow limited to
fastening non-fibrous material to other non-fibrous material.
Id. Rather it found that "industry standards
and dictionary definitions support the conclusion that the
tariff term self-tapping screw includes screws that are
intended to fasten non-fibrous materials to fibrous materials
as well as to non-fibrous materials." Id. at
1277-78 (citing Academic Press Dictionary of Science and
Technology 1951 (Christopher Morris ed. 1992); ANSI/ASME
Standard 18.6.4 ¶¶ 1.3.1, 1.3.2).
on the HTSUS headings, the section and chapter notes, the
explanatory notes, the available lexicographic sources, and
its review of intended use, the court concluded that (1) the
common and commercial meaning of "other wood screw"
is "a screw that forms its own thread by compressing
surrounding material designed to fasten wood to wood or other
fibrous material, " and (2) the common and commercial
meaning of "self-tapping screw" is a
"specially hardened screw, that meets minimum torsional
strength requirements, that can cut away material to form a
mating thread in non-fibrous material, and is designed to
fasten non-fibrous materials, such as metal, to either
fibrous or non-fibrous materials." Id. at 1278
(internal quotation marks omitted). The court confirmed its
conclusion by reviewing the parties' experts'
testimonies, finding the testimonies to be consistent with
its constructions. Id.
court then turned to whether GRK's imported screws are
properly classified as "other wood screws" or as
"self-tapping screws" under the court's
constructions. Id. at 1280. Based on the undisputed
facts, it found that the R4, RT, and Fit/Trim screws are
"self-tapping screws" because they are capable of
cutting a mating thread in non-fibrous materials, are made of
case-hardened carbon steel or stainless steel, and meet
minimal torsional strength requirements. Id. at
1280-81. The Court of International Trade further found that
the intended use of GRK's screws supports their
classification as self-tapping screws because they are
"intended for fastening non-fibrous materials to other
materials." Id. at 1281. The court relied on
the fact that GRK's screws have a "Climatek
coating" for its case-hardened carbon steel screws which
allow the screws "to be driven into even very, very
dense materials." Id. (internal quotation marks
and citation omitted). It also found that the design of the
R4 and RT screws support classifying them as self-tapping
because they have countersinking heads that allow for the
screws to penetrate "hard, brittle, or thin plasticized
surfaces veneered onto lumber or composite wood without
causing mushrooming." Id. at 1282.
"Mushrooming" occurs when "non-fibrous
material that the screw cuts and removes as it is driven
would rise and create mushroom on the surface, " a
concern that is not relevant for fastening wood or other
fibrous materials. Id. (citations omitted). The RT
screw also has a secondary reverse threading to avoid
mushrooming altogether. Id. Lastly, the court found
that the "special points and threading patterns" on
the screws "better enable the screws at issue to be used
in materials such as 'sheet metal, plastics,
medium-density fiberboard, polyvinyl chloride (PVC) board,