Slip Op. 16-70


               UNITED STATES COURT OF INTERNATIONAL TRADE



 GRK CANADA, LTD.,

       Plaintiff,
                                             Before: Claire R. Kelly, Judge
 v.
                                             Court No. 09-00390
 UNITED STATES,

       Defendant.


                                       OPINION

[Granting Plaintiff’s motion for summary judgment and denying Defendant’s motion for
summary judgment.]

                                                                   Dated: July 15, 2016

Craig E. Ziegler, Montgomery, McCracken, Walker & Rhoads, LLP, of Philadelphia, PA,
for plaintiff.

Jason Matthew Kenner, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of New York, NY, for defendant. With him on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson,
Director, and Amy M. Rubin, Assistant Director, International Trade Field Office. Of
Counsel on the brief was Beth Brotman, Office of the Assistant Chief Counsel
International Trade Litigation, U.S. Customs and Border Protection, of New York, NY.

      Kelly, Judge: Before the court are cross-motions for summary judgment regarding

the proper classification of imports of certain steel screw fasteners. See Def.’s Mot.

Summ. J., Feb. 29, 2016, ECF No. 65; Mot. Summ. J. Pl. GRK Canada, Ltd., Feb. 29,

2016, ECF No. 68. Defendant maintains United States Customs and Border Protection

(“Customs”) properly classified GRK Canada, Ltd.’s (“GRK”) entries of steel screw

fasteners under Harmonized Tariff Schedule of the United States (2007) (“HTSUS”)
Court No. 09-00390                                                              Page 2


subheading 7318.12.00, which covers “Other wood screws.” See Def.’s Mem. Supp. Mot.

Summ. J., Feb. 29, 2016, ECF No. 65 (“Def. Br.”).         Plaintiff argues that Customs

improperly denied GRK’s protest of Customs’ classification of GRK’s imported steel screw

fasteners and that the merchandise is properly classified under HTSUS subheading

7318.14.10, which covers “Self-tapping screws.” See Br. Supp. Mot. Summ. J. Pl. GRK

Canada, Ltd., Feb. 29, 2016, ECF No. 70 (“GRK Br.”).

      This matter returns to the court following a decision by the United States Court of

Appeals for the Federal Circuit, which vacated and remanded the court’s earlier decision

granting summary judgment in favor of Plaintiff. See GRK Canada, Ltd v. United States,

37 CIT __, 884 F. Supp. 2d 1340 (2013) (“GRK I”), vacated and remanded, 761 F.3d 1354

(Fed. Cir. 2014) (“GRK II”). The court presumes familiarity with the prior decisions and

will only recount the prior proceedings as necessary.

      After reviewing the undisputed facts, the court in GRK I undertook an examination

of the language of the tariff terms, aided by the Harmonized Commodity Description and

Coding System's Explanatory Notes (“Explanatory Notes”), lexicographic sources,

industry standards for mechanical fasteners, and expert testimony. GRK I at __, 884 F.

Supp. 2d at 1346–52. The court identified the competing subheadings as eo nomine

provisions and held that the screws imported by GRK were properly classified as self-

tapping screws rather than as other wood screws, rejecting any consideration of “use” as

informing the meaning of either tariff term. Id. at __, 884 F. Supp. 2d at 1345, 1352–56.

The Court of Appeals vacated and remanded the court’s decision in GRK I, holding that

it was error for the court to “refuse[] to consider the use of the screws at any step of
Court No. 09-00390                                                                  Page 3


determining the classification of the subject articles at issue.” GRK II, 761 F.3d at 1355.

The Court of Appeals subsequently denied a petition for rehearing en banc. See GRK

Canada, Ltd. v. United States, 773 F.3d 1282 (Fed. Cir. 2014) (“GRK III”).

       Upon remand, the Court of International Trade ordered pretrial discovery in the

matter reopened “limited to the issues of ‘intended use,’ or ‘principal use,’ or ‘actual use’

of the imported screws at issue.” Scheduling Order, Mar. 31, 2015, ECF No. 59. The

parties completed discovery on November 13, 2015, see Order, Aug. 4, 2015, ECF No.

62, and on February 29, 2016 the parties cross-moved for summary judgment. Together

with their motions for summary judgment, the parties submitted separate statements of

undisputed material facts. See Pl. GRK Canada, Ltd.’s Statement of Undisputed Facts,

Feb. 29, 2016, ECF No. 69 (“GRK Facts”); Def.’s Statement of Material Facts Which

There Are No Genuine Issues to be Tried, Feb. 29, 2016, ECF No. 67 (“Def. Facts”).

Thereafter, the parties submitted responses to the statements of undisputed facts, see

Resp. Pl. GRK Canada, Ltd. Def.’s Statement of Undisputed Facts, Apr. 4, 2016, ECF

No. 75 (“GRK Facts Resp.”); Def.’s Resps. Pl. GRK Canada, Ltd., Rule 56.3 Statement

of Material Facts, May 6, 2016, ECF No. 79 (“Def. Facts Resp.”). Briefing in the action

concluded on May 20, 2016 after the parties submitted responses and replies to the

motions for summary judgment. See Br. Pl. GRK Canada, Ltd. Opp’n Government’s Mot.

Summ. J., Apr. 4, 2016, ECF No. 74 (“GRK Resp.”); Def.’s Mem. Opp’n Pl.’s Mot. Summ.

J. and Reply Pl.’s Resp. Def.’s Mot. Summ. J., May 6, 2016, ECF No. 78 (“Def. Resp. &

Reply”); Reply Br. Pl. GRK Canada, Ltd. Further Supp. Mot. Summ. J., May 20, 2016,
Court No. 09-00390                                                              Page 4


ECF No. 80. For the reasons set forth below, the court grants Plaintiff’s motion for

summary judgment and denies Defendant’s motion for summary judgment.

                                UNDISPUTED FACTS

      The following facts are not in dispute. GRK imported the steel screw fasteners at

issue into the United States between January 2008 and August 2008. GRK Facts ¶¶ 5,

6; Def. Facts Resp. ¶¶ 5, 6. Customs classified GRK’s imported screws under HTSUS

subheading 7318.12.00 as “Other wood screws” dutiable at 12.5% ad valorem, and the

entries were liquidated by Customs between November 2008 and January 2009. GRK

Facts ¶¶ 7, 14; Def. Facts Resp. ¶¶ 7, 14. GRK paid all liquidated duties assessed on

the merchandise and filed timely protests, all four of which were denied by Customs. GRK

Facts ¶¶ 7–10; Def. Facts Resp. ¶¶ 7–10.

      The screw fasteners that are the subject of GRK’s protests consist of two models:

(1) R4 screws and (2) Trim Head screws. GRK Facts ¶ 12; Def. Facts Resp. ¶ 12. GRK’s

Trim Head Screws are available in two varieties – RT Composite Trim Head (“RT”) screws

and Fin/Trim Head (“Fin/Trim”) screws. GRK Facts ¶ 13; Def. Facts Resp. ¶ 13. Each of

these screws has a head, is made of steel, and is manufactured in varying lengths and

diameters. GRK Facts ¶ 12; Def. Facts Resp. ¶ 12. All of GRK’s screws are available in

heat-treated case-hardened carbon steel, and all of these carbon steel screws are also

available with a “Climatek” coating. Def. Facts ¶¶ 11, 18; GRK Facts Resp. ¶¶ 11, 18;

GRK Facts ¶¶ 16–17; Def. Facts Resp. ¶¶ 16–17. The Climatek coating includes a water-

based lubricant intended to reduce the torque required to drive the screw, allowing GRK’s

case-hardened carbon steel screws to be used in very dense materials. Def. Facts ¶ 27;
Court No. 09-00390                                                                          Page 5


GRK Facts Resp. ¶ 27; GRK Facts ¶ 62; Def. Facts Resp. ¶ 62. The color of the Climatek

coating matches almost all wood finishes. Def. Facts ¶ 28; GRK Facts Resp. ¶ 28.

Certain sizes of GRK’s screws are also available in stainless steel. Def. Facts ¶¶ 12, 19,

29; GRK Facts Resp. ¶¶ 12, 19, 29; GRK Facts ¶ 16; Def. Facts Resp. ¶ 16. “Stainless

steel is a harder material than non-case-hardened carbon steel.” GRK Facts ¶ 19; Def.

Facts Resp. ¶ 19.

       The screws at issue are manufactured to meet minimum torsional strength

requirements, 1 which require a harder screw than screws that do not meet such torsional

requirements. GRK Facts ¶¶ 22, 24; Def. Facts Resp. ¶¶ 22, 24. The screws 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.” GRK Facts ¶ 30; Def. Facts Resp. ¶ 30. GRK’s screws are

used to mate dissimilar materials, such as plastics or dense composite materials to wood.

GRK Facts ¶ 31; Def. Facts Resp. ¶ 31. GRK’s screws, at least in some applications, are

able to pierce the material without the need to pre-drill a bore hole. GRK Facts ¶ 30; Def.

Facts Resp. ¶ 30.




1 Pursuant to industry standards, the minimum strength requirement for a tapping screw is 4
pound-inches (“lb-in.”) for a 2 inch screw, 9 lb-in. for a 3 inch screw, 12 lb-in. for a 4 inch screw,
etc. See Thread Forming and Thread Cutting Tapping Screws and Metallic Drive Screws (Inch
Series) ASME B18.6.4-1998 at Table 4. Neither party specifies the minimum strength
requirement for GRK's screws or quantifies the torsional strength of GRK's screws.
Court No. 09-00390                                                                       Page 6


       The screws at issue all have gimlet points with a point angle of between 25 and 35

degrees. 2 GRK Facts ¶ 25; Def. Facts Resp. ¶ 25. Some of GRK’s screws have a Type

17 point that GRK calls a “Zip-tip.” GRK Facts ¶ 27; Def. Facts ¶¶ 6, 14; GRK Facts

Resp. ¶¶ 6, 14. All RT and Fin/Trim screws have a Type 17 point and R4 screws that are

1¼ inches and longer have a Type 17 point. Def. Facts ¶¶ 6, 14; GRK Facts Resp. ¶¶ 6,

14. GRK’s Type 17 point can be described as

       a gimlet point with a slot or groove with sharp edges cut into the point. This
       cut-out groove or slot adds an additional cutting edge to the point, which
       cuts and removes material that the screw is penetrating. The presence of
       this cutting groove allows the screw to get started more easily and reduces
       the torque needed to drive the screw.

GRK Facts ¶ 28; Def. Facts Resp. ¶ 28.

       The Type 17 point gives screws the ability to start quickly in certain materials. Def.

Facts ¶ 20; GRK Facts Resp. ¶ 20. The American National Standards Institute and the

American Society of Mechanical Engineers (collectively “ANSI/ASME”) jointly publish

industry standards for screw fasteners (“ANSI/ASME Standard”), and the Type 17 point

is not listed as a point that is specified for tapping screws. 3 GRK Facts ¶¶ 38, 42; Def.

Facts Resp. ¶¶ 38, 42.

       R4 and Trim Head screws that are 1¼ inches and longer also have a patented

thread design that is referred to as “W-Cut” threading. Def. Facts ¶¶ 8, 15; GRK Facts


2
 Pursuant to industry standards for mechanical fasteners, a gimlet point is “a threaded cone point
usually having a point angle of 45 to 50 [degrees].” See Exs. Supp. Mot. Summ. J. Pl. GRK
Canada, Ltd. Ex. 8 at 5, Feb. 29, 2016, ECF No. 71-7.
3 The standards published by ANSI/ASME do not cover the entire universe of screws. See Exs.
Supp. Mot. Summ. J. Pl. GRK Canada, Ltd. Ex. 5 at 31–32, Feb. 29, 2016, ECF No. 71-5. These
standards are reactive documents in that the standards respond to specific inquiries from
members in the industry. Id.
Court No. 09-00390                                                                        Page 7


Resp. ¶¶ 8, 15. The W-Cut threading acts as a sawblade and easily cuts through a variety

of materials. Def. Facts ¶ 21; GRK Facts Resp. ¶ 21.

       All R4 screws have a “self-countersinking” head with saw-blade-like-cutting teeth

and six self-contained cutting pockets, which allow the screw to be installed flush with the

surface without a separate countersinking operation. 4 Def. Facts ¶¶ 10, 23; GRK Facts

Resp. ¶¶ 10, 23. This self-countersinking head is designed to penetrate hard, brittle, or

thin plasticized surfaces veneered onto lumber or composite woods without causing the

surface of the material to crack, tear, or “mushroom,” i.e., when material displaced by a

screw rises to the surface and creates a bubble. Def. Facts ¶ 24; GRK Facts Resp. ¶ 24;

GRK Facts ¶ 63; Def. Facts Resp. ¶ 63. In addition to the W-Cut threading discussed

above, R4 screws that are 2 inches and longer have a secondary “CEE” threading. Def.

Facts ¶ 9; GRK Facts Resp. ¶ 9. The CEE threading enlarges a screw hole to allow the

affixed materials to settle against each other easily around the non-threaded portion of

the screw. Def. Facts ¶ 22; GRK Facts Resp. ¶ 22. “The R4 is recommended for use in

wood, particle board, plastic, sheet metal, cement fiberboard and wood decking, pressure

treated lumber decking, cedar and redwood decking.” Def. Facts ¶ 31; GRK Facts Resp.

¶ 31. The R4 can be used in woodworking and other applications and is designed to affix

thin metal to wood. Def. Facts ¶¶ 30, 32; GRK Facts Resp. ¶¶ 30, 32.




4
  Plaintiff’s expert, Dr. David R. Bohnhoff, describes countersinking as an operation “used to flare
out the top of the hole” so that the screw head can “become flush with the surface after
installation.” See Exs. Supp. Mot. Summ. J. Pl. GRK Canada, Ltd. Ex. 8 at 9–10, Feb. 29, 2016,
ECF No. 71-76.
Court No. 09-00390                                                                 Page 8


          RT and Fin/Trim screws are designed to have the "smallest screw head available."

Def. Facts ¶ 17; GRK Facts Resp. ¶ 17. The small head of these screws is designed to

prevent the screws from cracking the material that the screw is driven into. Def. Facts.

¶ 26; GRK Facts Resp. ¶ 26. The RT screw has “reverse threading” as its secondary

threading. Def. Facts ¶ 16; GRK Facts Resp. ¶ 16. The reverse threading allows the

head of the RT screw to be less noticeable when used in certain materials and is designed

to avoid the problem of mushrooming by pulling any excess material cut away by the

screw back into the screw hole. Def. Facts ¶ 25; GRK Facts Resp. ¶ 25; GRK Facts

¶ 63; Def. Facts Resp. ¶ 63. Fin/Trim screws do not have secondary threading. Both the

RT and Fin/Trim screws are used for most fine carpentry applications and trim

applications. Def. Facts ¶ 34; GRK Facts Resp. ¶ 34. The RT and Fin/Trim screws also

can be used to anchor composite decking to wood beams. Def. Facts ¶ 35; GRK Facts

Resp. ¶ 35.

                         JURISDICTION AND STANDARD OF REVIEW

          The court has jurisdiction pursuant to 28 U.S.C. § 1581(a) (2006) 5 and 19 U.S.C.

§ 1515 (2006), which grant the court authority to review actions contesting the denial of

a protest regarding the classification of imported merchandise, and the court reviews such

actions de novo. 28 U.S.C. § 2640(a)(1). Determining the correct classification of

merchandise involves two steps. First, the court determines the proper meaning of the

tariff provisions, a question of law. See Link Snacks, Inc. v. United States, 742 F.3d 962,

965 (Fed. Cir. 2014). Second, the court determines whether the subject merchandise


5
    Further citations to Title 28 of the U.S. Code are to the 2006 edition.
Court No. 09-00390                                                                        Page 9


properly falls within the scope of the tariff provisions, a question of fact. Id. The court will

grant summary judgment when “the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” USCIT R.

56(a).

         In order to raise a genuine issue of material fact, it is insufficient for a party to rest

upon mere allegations or denials, but rather that party must point to sufficient supporting

evidence for the claimed factual dispute to require resolution of the differing versions of

the truth at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986); Processed

Plastics Co. v. United States, 473 F.3d 1164, 1170 (Fed. Cir. 2006); Barmag Barmer

Maschinenfabrik AG v. Murata Machinery, Ltd., 731 F.2d 831, 835-36 (Fed. Cir. 1984).

Where no genuine “dispute as to the nature of the merchandise [exists], then the two-

step classification analysis collapses entirely into a question of law.” Link Snacks, 742

F.3d at 965–66 (citation omitted). The court must determine “whether the government’s

classification is correct, both independently and in comparison with the importer’s

alternative.” Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed. Cir. 1984).

                                          DISCUSSION

   I. The Purpose of “Use” in Defining the Meaning of a Tariff Term

         The Court of Appeals vacated and remanded the court’s decision in GRK I for the

court to consider use and determine how use affects the meaning of the tariff terms and
Court No. 09-00390                                                                          Page 10


the classification of the merchandise at issue in this case. 6 GRK II, 761 F.3d at 1355.

The Court of Appeals did not instruct the court as to how use affects the meaning of a

tariff term, but its opinion raises two possibilities. The Court of Appeals suggests either

the provision may be controlled by use, or the physical characteristics of the putative tariff

terms may overlap to the extent that it would be error not to consider the intended use

implicated by each term in deciding between the possible classifications. GRK II, 761

F.3d at 1359.

       First, a tariff term written as an eo nomine provision may be controlled by use and,

if so, the court should declare as such. 7 Id. at 1358–59. The Court of Appeals stated that



6
  The Court of Appeals has left it to this court to determine how use should be considered in
determining the meaning and scope of the tariff subheadings. See GRK III, 773 F.3d at 1286
(Wallach, J., dissenting) (noting that GRK II “offers no answer, as a matter of law, on [the] proper
construction [of the competing subheadings], other than the use of the subject merchandise
involved in this case should have a bearing on the legal construction of the subheadings.”). There
are two distinct inquiries that implicate use: (i) use as it may inform the meaning of the tariff term,
and (ii) use to which the merchandise at issue is put. The former is a question of law and the
latter is a question of fact. The Court of Appeals specifically references both of these inquiries
admonishing the court not to ignore use in analyzing either inquiry, “whether defining the legal
meaning of the tariff terms at issue or determining the proper classification of the subject articles.”
GRK II, 761 F.3d at 1361.
7 Provisions controlled by use can be either actual use or principal use provisions. Actual use

provisions, which are rare in the HTSUS, are those in which classification is dependent upon the
merchandise’s actual use. Additional Rule of Interpretation (“ARI”) 1(b) provides that the “tariff
classification is controlled by the actual use to which the imported goods are put in the United
States.” ARI 1(b). Inclusion of the words “to be used for” in the additional notes to the HTSUS
indicates that the classification is an actual use provision. See Clarendon Mktg., Inc. v. United
States, 144 F.3d 1464, 1467 (Fed. Cir. 1998).
         “‘Principal use’ is defined as the use ‘which exceeds any other single use of the article.’”
Minnetonka Brands, 24 CIT at 650, 110 F. Supp. 2d at 1027 (quoting Conversion of the Tariff
Schedules of the United States Annotated Into the Nomenclature Structure of the Harmonized
System: Submitting Report, USITC Pub. 1400 at 34–35 (June 1983)). Principal use provisions
classify merchandise according to the ordinary use of a particular class of merchandise in the

                                                                                 (footnote continued)
Court No. 09-00390                                                                         Page 11


there may be cases when the goods named and described under an eo nomine provision

“‘inherently suggest[s] a type of use.’” Id. at 1359 (quoting Carl Zeiss, Inc. v. United

States, 195 F.3d 1375 (Fed. Cir. 1999)). The Court further clarified that in such a

circumstance the “[c]lassification 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.” 8 GRK II, 761 F.3d

at 1359 n.2 (citing Primal Lite, Inc. v. United States, 182 F.3d 1362, 1363 (Fed. Cir. 1999);

StoreWALL, LLC v. United States, 644 F.3d 1358, 1365–67 (Fed. Cir. 2011) (Dyk, J.,

concurring) (discussing Processed Plastics, 473 F.3d at 1169–70 (Fed. Cir. 2006);

Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998); Minnetonka




United States. See Primal Lite v. United States, 182 F.3d 1362, 1364 (Fed. Cir. 1999) (citing ARI
1(a)). ARI 1 provides that the controlling use is the principal use, and “a tariff classification
controlled by use (other than actual use) is to be determined in accordance with the use in the
United States at, or immediately prior to, the date of importation, of goods of that class or kind to
which the imported goods belong.” ARI 1(a). Courts have interpreted the “class or kind” language
of ARI 1 to be those goods that are “commercially fungible with the imported goods.” See Primal
Lite, 182 F.3d at 1364.
8
  In relevant part, ARI 1 provides that

         in the absence of special language or context which otherwise requires--

         (a) a tariff classification controlled by use (other than actual use) is to be
         determined in accordance with the use in the United States at, or immediately prior
         to, the date of importation, of goods of that class or kind to which the imported
         goods belong, and the controlling use is the principal use;
         (b) a tariff classification controlled by the actual use to which the imported goods
         are put in the United States is satisfied only if such use is intended at the time of
         importation, the goods are so used and proof thereof is furnished within 3 years
         after the date the goods are entered.

ARI 1.
Court No. 09-00390                                                                         Page 12


Brands, Inc. v. United States, 24 CIT 645, 651, 110 F. Supp. 2d 1020, 1026 (2000)). 9

       In the typical provision that is controlled by use, the word “use” or “used” appears

in the language of the subheading. 10 In those provisions, the heading describes articles

by the manner in which they are used as opposed to by name. See Clarendon Mktg.,

Inc. v. United States, 144 F.3d 1464, 1467 (Fed. Cir. 1998). The Court of Appeals’ citation

to StoreWALL indicates that where a tariff term does not include the word “use” it may

nonetheless be controlled by use when the term itself (including the Section and Chapter

Notes) or the Explanatory Notes indicates that, as a matter of law, the provision is

controlled by use. See GRK II, 761 F.3d at 1359 n.7 (citing StoreWALL, 644 F.3d at

1365–67 (Dyk, J., concurring)).




9
   By stating that the ARIs “may” be reached, the Court has left open the possibility that the
provisions should be considered provisions controlled by use, or alternatively that use may be
implicated in deciding between the possible classifications. As the dissents in GRK II and GRK
III note, the ARIs belong to a distinct interpretive framework. See GRK II, 761 F.3d at 1362
(Reyna, J., dissenting); GRK III, 773 F.3d at 1284–85, 1287 (Wallach, J., dissenting). The dissent
in GRK II noted that

       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. A use provision, on the other hand,
       describes an article by its principal 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”).

GRK II, 761 F.3d at 1362 (Reyna, J., dissenting) (internal citations omitted).
10 See, e.g., Dependable Packaging Solutions, Inc. v. United States, 757 F.3d 1374, 1378 (Fed.

Cir. 2014) (HTSUS headings 7010 covering “Carboys, bottles, flasks, jars, pots, vials, ampules
and other containers, of glass, of a kind used for the conveyance or packing of goods . . .” and
7013 covering “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or
similar purposes . . .” are principal use provisions); USR Optonix, Inc. v. United States, 29 CIT
229, 246, 362 F. Supp. 2d 1365, 1381 (2005) (HTSUS heading 3204 covering “Synthetic organic
coloring matter . . . synthetic organic products of a kind used as fluorescent brightening agents or
as luminophores . . .” is a tariff provision controlled by principal use).
Court No. 09-00390                                                                        Page 13


       In StoreWALL, the importer argued that its wall panels and hang up organizers

should be classified as “parts” of unit furniture under HTSUS subheading 9403.90.50.

StoreWALL, 644 F.3d at 1360. The Court of Appeals agreed with the importer, reversing

the U.S. Court of International Trade’s decision, and the concurring judge wrote

separately to explain that HTSUS heading 9403 which covers “Other furniture and parts

thereof” is a provision controlled by use with respect to unit furniture. The concurrence

considered the Chapter Notes, as required by General Rule of Interpretation (“GRI”) 1,11

which provide that


11
  Customs classification is governed by the GRIs, which are a part of the HTSUS statute. BenQ
Am. Corp. v. United States, 646 F.3d 1371, 1376 (Fed. Cir. 2011). Several of the GRIs are
implicated by the cases discussed here, including:

       Classification of goods in the tariff schedule shall be governed by the following
       principles:

       1. . . . classification shall be determined according to the terms of the headings
           and any relative section or chapter notes and, provided such headings or notes
           do not otherwise require, according to the following provisions:
       ...

       3. When, by application of rule 2(b) or for any other reason, goods are, prima
           facie, classifiable under two or more headings, classification shall be effected
           as follows:
           (a) The heading which provides the most specific description shall be preferred
               to headings providing a more general description. However, when two or
               more headings each refer to part only of the materials or substances
               contained in mixed or composite goods or to part only of the items in a set
               put up for retail sale, those headings are to be regarded as equally specific
               in relation to those goods, even if one of them gives a more complete or
               precise description of the goods.
           (b) Mixtures, composite goods consisting of different materials or made up of
               different components, and goods put up in sets for retail sale, which cannot
               be classified by reference to 3(a), shall be classified as if they consisted of
               the material or component which gives them their essential character,
               insofar as this criterion is applicable.
       ...
                                                                                 (footnote continued)
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       [t]he articles (other than parts) referred to in headings 9401 to 9403 are to
       be classified in those headings only if they are designed for placing on the
       floor or ground. The following are, however, to be classified in the above-
       mentioned headings even if they are designed to be hung, to be fixed to the
       wall or to stand one on the other: (a) Cupboards, bookcases, other shelved
       furniture and unit furniture....

See StoreWALL, 644 F.3d at 1365 (quoting Chapter 94 Notes, Note 2, HTSUS (2004))

(Dyk, J., concurring). The concurrence found the Chapter Notes describe unit furniture by

the manner in which it is used. Id. The concurrence proceeded to consider the principal

use of the merchandise at issue.         See id. at 1366–67 (Dyk, J., concurring).          The

concurrence found the Explanatory Notes also implicated the design of the product by

stating that “unit furniture” must be “‘designed to be hung, to be fixed to the wall or to

stand one on the other or side by side, for holding various objects or articles. . . .’” Id. at

1365 (quoting Explanatory Notes to Chapter 94 (2002)) (Dyk, J. concurring).                 The

concurrence noted both the Chapter Notes and the Explanatory Notes not only referenced

use, but made use the dispositive factor. Id. at 1364–65 (Dyk, J., concurring). The

articulated use controlled what could or could not be classified within the tariff term

because classification under the subheading “turns on the manner of use–whether the




       6. For legal purposes, the classification of goods in the subheadings of a heading
          shall be determined according to the terms of those subheadings and any
          related subheading notes and, mutatis mutandis, to the above rules, on the
          understanding that only subheadings at the same level are comparable. For
          the purposes of this rule, the relative section, chapter and subchapter notes
          also apply, unless the context otherwise requires.

GRI 1, 3(a), 6.
Court No. 09-00390                                                                        Page 15


items are primarily used with shelves or with hooks.” 12 Id. at 1366 (Dyk, J., concurring).

       In the StoreWALL concurrence, which is referenced in GRK II, the Court of Appeals

relies upon Processed Plastics for the notion that use may also be inherent in the meaning

of a tariff term, making use the controlling factor in classifying the merchandise. 13 Id. at

1365 (Dyk, J., concurring) (citing Processed Plastics, 473 F.3d at 1169–70).                      In

Processed Plastics, the importer challenged Customs’ classification of children’s

backpacks (decorated with children’s characters) and beach bags (filled with sand toys),

claiming that they should be classified as other toys rather than as traveling bags,

knapsacks and backpacks. Processed Plastics, 473 F.3d at 1170. The Court of Appeals

agreed with Customs’ classification of the merchandise and adopted the standard

established in Minnetonka Brands, which held that “an object is a toy only if it is designed

and used for amusement, diversion or play, rather than practicality.” See id. (citing

Minnetonka Brands, 24 CIT at 651, 110 F. Supp. 2d at 1026).

       Alternatively, the Court of Appeals noted the tariff term may suggest an intended

use of a product, which may be considered in addition to its physical characteristics, such


12  The concurrence in StoreWALL also cites to Orlando Food, 140 F.3d at 1441, for the
proposition that use may be implicated in construing a tariff term where a specific use is inherent
in the definition of an object. Although it considers use in defining a tariff term, Orlando Food is
not directly applicable here for several reasons. The case was decided under GRI 3(a), not GRI
1. The Court of Appeals in Orlando Food concluded the merchandise was prima facie classifiable
in both competing headings at issue. In determining which was more specific, the Court of
Appeals found that HTSUS heading 2103, “Sauces and preparations therefor,” is a use provision
insofar as it covers preparations for sauces and therefore more specific than the competing eo
nomine provision because “[i]nherent in the term ‘preparation’ is the notion that the object involved
is destined for a specific use.” Orlando Food, 140 F.3d at 1441.
13 See, e.g., Hartz Mountain Corp. v. United States, 19 CIT 1149, 1150, 903 F. Supp. 57, 59

(1995) (holding that “[w]hen ‘household’ is used in conjunction with the term ‘articles’ in
subheading 3924.90.50, HTSUS, a use provision is created.”).
Court No. 09-00390                                                                       Page 16


as its size, shape, and construction. 14 See GRK II, 761 F.3d at 1358 (citing United States

v. Quon Quon Co., 46 C.C.P.A. 70, 73–74 (1959) (“under certain circumstances use may

be of ‘paramount importance’” in understanding the commercial meaning of a term)). In

GRK II, the Court of Appeals relied on Quon Quon for the proposition that, in certain

circumstances, intended use should be considered in determining whether merchandise

is properly classified under an eo nomine provision. 15 See id. at 1358, 1361 (citing Quon

Quon, 46 C.C.P.A. at 73–74). The Court explained that




14
   The relevant terms for the framework laid out by the Court of Appeals for this case require: (i)
consideration of actual or principle use if this court determines either provision is controlled by
use; or (ii) consideration of intended use (i.e., how the item is designed and marketed to a typical
user) if necessary to decide between two seemingly applicable eo nomine provisions. To consider
principal or actual use in a case where only intended use is implicated would be inconsistent with
the governing interpretive framework. Nothing in the Court of Appeals’ analysis indicates principal
or actual use are considerations in an eo nomine provision where intended use is implicated.
15
   The Court of Appeals also relied upon its previous decision in CamelBak Prods., LLC v. United
States, which cited Quon Quon to support the proposition that the design and function of
merchandise under an eo nomine provision may be an important aspect of the merchandise’s
identity. GRK II, 761 F.3d at 1358 (citing CamelBak Prods., LLC v. United States, 649 F.3d 1361,
1368–69 (Fed. Cir. 2011)). While CamelBak undeniably spoke of the “principal intended use of
the product,” it did so not in the context of an analysis under GRI 1, but rather, under GRI 3(b) to
identify the essential character of the product. CamelBak, 649 F.3d at 1369. Thus, the case
provides guidance where function and design are important considerations for determining the
essential character of a product to decide under which of two headings the merchandise is prima
facie classifiable, not for determining the meaning of a tariff term under GRI 1. The Court of
Appeals also invoked Casio, Inc. v. United States, 73 F.3d 1095 (Fed. Cir. 1996), but, similar to
CamelBak, the issue in that case implicated use in a different manner than is presented here. In
Casio, the Court of Appeals considered whether the plaintiff’s merchandise possessed “features
substantially in excess of those within the common meaning of the term.” Id. at 1098. The Court
of Appeals looked to the primary design and function of the additional features and concluded
that they did not remove the product from the eo nomine classification at issue. Id.
         Finally, the Court of Appeals cites to Len-Ron Mfg. Co. v. United States, 334 F.3d 1304,
1311 (Fed. Cir. 2003). In Len-Ron, the Court of Appeals initially undertook an analysis to
determine whether certain cosmetic bags are prima facie classifiable under the eo nomine
provision for “vanity case,” but then eschewed this analysis for one reserved for provisions that

                                                                               (footnote continued)
Court No. 09-00390                                                                       Page 17


       [t]he use of goods may be an important aspect of the distinction of certain
       eo nomine provisions, in particular, where, as here, the name of the
       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.”

Id. at 1361 (quoting Quon Quon, 46 C.C.P.A. at 73).

       In Quon Quon, the physical characteristics of the product implicated more than one

tariff term. See Quon Quon, 46 C.C.P.A. at 72–73. The Court of Customs and Patent

Appeals held that the tariff heading for baskets, while an eo nomine heading, connoted

an article that not only had the shape and appearance of a basket, but also would be

used as a basket. Id. The Court noted that, while the imported articles had the “size,

shape, and construction of baskets,” they were to be assembled with an iron base and

only function as coffee table tops. Id. at 73–74. As a result, the Court found that it would

be legal error to ignore the intended use of the product. 16 Id. at 72–73 (“To hold otherwise

would logically require the trial court to rule out evidence of what things actually are every

time the collector thinks an article, as he sees it, is specifically named in the tariff act.”).




are controlled by use, stating that “for a handbag or case to be classified as a vanity case,
containing, carrying, or organizing cosmetics must be its predominant use, rather than simply one
possible use.” Id.; see also GRK III, 773 F.3d at 1287 n.1 (Wallach, J., dissenting). It is unclear
what principle from Len-Ron the Court of Appeals would have the court adhere to in its analysis
of the eo nomine provisions at issue here. Len-Ron appeared to have determined that the term
“‘vanity case’ was controlled by use but it did not declare the provision as such.
16
   Other cases have implicitly or explicitly considered design and intended use to analyze and
define the scope of a tariff term. In two past decisions, the Court of Appeals eschewed a reading
of the tariff term which would impose a utilitarian limitation on the festive articles provision and
instead considered how various articles with holiday motifs were designed, marketed, and used.
See Park B. Smith, Ltd. v. United States, 347 F.3d 922, 929 (Fed. Cir. 2003); Midwest of Canon
Falls, Inc. v. United States, 122 F.3d 1423, 1429 (Fed. Cir. 1997).
Court No. 09-00390                                                                        Page 18


       Despite the fact that Quon Quon was decided under the predecessor to the

HTSUS, the Tariff Schedules of the United States (“TSUS”), the Court of Appeals relied

upon Quon Quon in GRK II for the proposition that the court would err by ignoring intended

use in the unique case where the physical characteristics of certain merchandise may

suggest multiple eo nomine classifications (i.e., baskets and parts of furniture). 17 GRK II,

761 F.3d at 1358 (providing that “[i]n 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.”).

     II. The Meaning of “Other Wood Screws” and “Self-Tapping Screws”

       The court defines the common and commercial meaning of “Other wood screws”

and “Self-tapping screws” based upon the language of the headings, the Section and

Chapter Notes, the Explanatory Notes, and the available lexicographic sources. Neither

tariff term at issue here is controlled by use such that the court must consider either actual

use or principal use under ARI 1. While the subheadings for both wood screws and the


17
   The dissents in both GRK II and GRK III criticized the majority’s reliance on Quon Quon. See
GRK II, 761 F.3d at 1363 (“The majority thus fails to base its analysis in the current interpretative
framework–the GRIs; it also provides an inaccurate and incomplete analysis of the now-defunct
TSUS framework”) (Reyna, J., dissenting); GRK III, 773 F.3d at 1286 (Wallach, J., dissenting)
(“Thus, beyond its inapplicability to this case, Quon Quon stands only for the narrow proposition
that, as a limited exception, use can sometimes be considered in the eo nomine analysis.”).
        Quon Quon suggests that where a product’s physical characteristics arguably fall under
two separate eo nomine provisions that it would be error to not consider intended use in defining
the meaning of a tariff term. See Quon Quon, 46 C.C.P.A. at 72–73. Understandably, in most
cases, the physical characteristics embodied in a tariff term will not overlap with the physical
characteristics of another tariff term such that intended use of the tariff term will come into play.
One can see how, as a conceptual matter, use is implicit in many eo nomine tariff terms. To say
something is a centerpiece, a walking stick, a tie, or a handbag suggests both certain physical
characteristics and an assumption that the product will have been designed and marketed for that
purpose. In the ordinary case though, the physical characteristics embodied by the tariff terms
for such merchandise will not overlap with another eo nomine provision.
Court No. 09-00390                                                                    Page 19


self-tapping screws and the applicable Explanatory Notes implicate use to some degree,

in neither case is use the controlling factor. However, here the physical characteristics of

the putative tariff terms 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 that are part of the common and commercial meaning of the terms to

distinguish between them. GRK II, 761 F.3d at 1360–61. The relevant sources indicate

that a “wood screw” is a screw intended to be used and able to produce its own thread in

wood, while “a self-tapping screw” is a screw made of hardened steel, intended to be

used and able to cut its own thread through non-fibrous material. 18

       The language of the tariff terms at issue here does not indicate that either term is

controlled by use. See, e.g., StoreWALL, 644 F.3d at 1365. The subheadings offered

by each party are both in the same Section, Chapter and heading. The relevant portion

of the HTSUS reads:

       7318 Screws, bolts, nuts, coach screws, screw hooks, rivets, cotters,
            cotter pins, washers (including spring washers) and similar articles,
            of iron or steel:

              --Threaded articles:
              ...


18 Fibrous building materials, such as wood, are made up of cells that are long and thin. Exs.
Supp. Mot. Summ. J. Pl. GRK Canada, Ltd. Ex. 19 at 2, Feb. 29, 2016, ECF No. 71-11. Non-
fibrous building materials include metal, melamine, plastics, medium-density fiberboard, cement
fiberboard, particle board (also known as oriented strand board, an engineered product consisting
of wood chips glued together with a bonding agent), modern composite wood decking made of
recycled plastics with wood chips mixed in, capstock decking, steel studs and other man-made
composite materials. Exs. Supp. Mot. Summ. J. Pl. GRK Canada, Ltd. Ex. 2 at 75–81, Feb. 29,
2016, ECF No. 71-4; Exs. Supp. Mot. Summ. J. Pl. GRK Canada, Ltd. Ex. 6 ¶ 13(a), Feb. 29,
2016, ECF No. 71-5; Exs. Supp. Mot. Summ. J. Pl. GRK Canada, Ltd. Ex. 11 at 23–31, Ex. 12 at
20–29, Feb. 29, 2016, ECF No. 71-8.
Court No. 09-00390                                                                         Page 20


               7318.12.00 Other wood screws . . . . . . . . . . 12.5%
               ...

               7318.14         Self-tapping screws:

               7318.14.10 Having shanks or threads with a diameter of less than
                          6 mm . . . . . . . . . . . . . . . . . . . . . . 6.2%

HTSUS heading 7318.

       The phrase “Other wood screws” in HTSUS subheading 7318.12.00 suggests that

screws classifiable in this subheading will be used in wood. However, nothing in the

Section Notes, the Chapter Notes, or the heading indicates that classification within that

subheading requires a certain principle or actual use. The phrase “Self-tapping screws”

in HTSUS subheading 7318.14.10 also suggests screws classifiable in this heading will

be used for tapping, 19 but nothing in the term suggests that a tapping use controls whether

the merchandise is covered by the provision. 20 Moreover, there is nothing inherent in the

terms “wood screws” or “self-tapping screws” that suggests classification is controlled by




19  Female (internal) threads may be formed by cutting and/or by compressing material. Exs.
Supp. Mot. Summ. J. Ex. 19 at 1, Feb. 29, 2016, ECF No. 71-11 (“Bohnhoff Suppl. Rep.”). While
the ANSI/ASME Standard reference both thread forming and thread cutting operations as tapping,
it appears that the industry identifies tapping as thread cutting. Thus, the cutting of female threads
is referred to as “tapping.” Id. Although a special tool may be used to cut internal threads, screws
that cut their own threads are called “thread-cutting screws,” “tapping screws,” or “self-tapping
screws.” Id. When screws are installed, those that push outward to a high degree on surrounding
material (i.e. compress) are referred to as “thread-forming screws.” Id. Thread forming screws
are distinguished from thread cutting screws by “[t]he extent to which a screw is designed to form
threads by compressing surrounding material versus forming threads by cutting surrounding
material.” Exs. Supp. Mot. Summ. J. Ex. 7 at 9, Feb. 29, 2016, ECF No. 71-11. Compression
and cutting are not necessarily mutually exclusive, however, because thread forming screws cut
material to a certain extent, and thread cutting screws involve some compression of material.
Bohnhoff Suppl. Rep. 1.
20
    Neither the Section nor the Chapter Notes indicate that the respective subheadings are
controlled by use.
Court No. 09-00390                                                                   Page 21


use such that the court should declare either term a provision that is controlled by use,

as a matter of law. See GRK III, 773 F.3d at 1287 (Wallach, J., dissenting); see also

Processed Plastics, 473 F.3d at 1169–70. The concurring opinion in StoreWALL, which

the Court of Appeals relied upon in GRK II, and the cases the concurring opinion in

StoreWALL cites make clear that it is not enough for use to be implicated for a provision

to be controlled by use, rather classification must “turn[] on the manner of use.”

StoreWALL, 644 F.3d at 1366 (Dyk, J., concurring).

       The Explanatory Notes for these provisions also do not indicate a particular use

that controls these provisions. 21 They state:

               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 recessed heads and they are never used with nuts.
               Coach screws (screw spikes) are large wood screws with square or
       hexagonal unslotted heads. They are used to fix railway lines to the
       sleepers and to assemble rafters and similar heavy woodwork.
               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.

Explanatory Notes for HTSUS heading 7318. The phrases “screws for wood” and “self-

tapping (Parker) screws” in the Explanatory Notes each suggest a use for the screws, but

the Explanatory Notes also offer physical characteristics for each type of screw and no

language suggests that the subheadings are controlled by use.




21
  The Explanatory Notes, while not controlling, provide interpretive guidance. E.T. Horn Co. v.
United States, 367 F.3d 1326, 1329 (Fed. Cir. 2004) (citing Len-Ron Mfg. Co. v. United States,
334 F.3d 1304, 1309 (Fed. Cir. 2003)).
Court No. 09-00390                                                                    Page 22


       Although neither provision is controlled by use, use may still be implicated in the

court’s interpretive analysis because, in limited circumstances, the intended use of the

product may be implicated by the tariff terms. See GRK II, 761 F.3d at 1360–61. The

court defines those terms relying upon its own understanding of the terms and may

“consult lexicographic and scientific authorities, dictionaries, and other reliable

information sources.” Carl Zeiss, 195 F.3d at 1379.

       The tariff terms themselves indicate that self-tapping screws are not a form of wood

screws.    The Explanatory Notes describe self-tapping screws as resembling wood

screws. See Explanatory Notes for HTSUS heading 7318. The Explanatory Notes shed

light on the difference between the two by clarifying that wood screws “bite their own way

into the material” while self-tapping screws “cut their own passage into thin sheets of

metal, marble, slate, plastics, etc.” See Explanatory Notes for HTSUS heading 7318.

Nothing about these descriptions suggests they are both forms of wood screws. Thus,

these two subheadings are distinct and mutually exclusive. 22



22 Heading 7318 contains a subheading for “Coach screws,” which the Explanatory Notes
describe as a type of wood screw. See Explanatory Notes for HTSUS heading 7318. The
Explanatory Notes do not describe self-tapping or Parker screws as a type of wood screw. The
Explanatory Notes reinforce this point as they indicate that a self-tapping screw is similar to a
wood screw while it describes the coach screw as a type of wood screw. Explanatory Notes for
HTSUS heading 7318. Plaintiff’s expert suggests that the categories have always been mutually
exclusive and offers some insight into why the seemingly broad phrase “wood screw” was used:

       If indeed (1) those drafting the original version of the HTSUS saw categories of
       "other wood screws" and "self-tapping screws" as mutually exclusive, and (2) some
       self-tapping fastener can be used in wood, then the only conclusion that can be
       reached is that the category “other wood screws” was not a category developed


                                                                            (footnote continued)
Court No. 09-00390                                                                     Page 23


       The parties have offered a number of dictionary definitions for the court to consider

in defining the two competing provisions. For wood screws, Defendant cites to definitions

which emphasize a screw with a sharp thread that is used in wood. 23 See Def. Br. 18–

19. All of the definitions cited by Defendant define a wood screw as being used in wood.

Certain definitions indicate that the screw is used for wood only, 24 while others indicate




       for screws used in wood, but rather a category developed for a very specific type
       of non-self-tapping screw commonly referred to in the industry as a ''wood screw".
       That these particular fasteners were called wood screws is not surprising given the
       fact that at the time of their development, they were used almost exclusively in
       wood.

Exs. Supp. Mot. Summ. J. Pl. GRK Canada, Ltd. Ex. 19 at 6, Feb. 29, 2016, ECF No. 71-11.
Moreover, logically it would appear that in most cases two subheadings under the same heading
in a chapter would necessarily be mutually exclusive of each other as each would be defined not
only by its terms, but also by what it is not as indicated in the other subheading’s terms.
23
   For example, Defendant defines a wood screw as a “pointed metal screw formed with a sharp
thread of comparatively course pitch for insertion in wood.” Def. Br. 18 (quoting Webster’s Third
New International Dictionary 2631 (Philip Babcock Gove, Ph. D. and Merriam-Webster Editorial
Staff eds. 1993)).
24
   Defendant cites to the following definitions for wood screws which suggest that wood screws
are only used in wood:

       Wood Screw: a threaded fastener with a pointed shank, a slotted or recessed
       head, and a sharp tapered thread of relatively course pitch for use only in wood.
       McGraw-Hill Dictionary of Scientific and Technical Terms 2302 (6th ed. 2003).

       Wood Screw: a metal fastener used for wood, usually having a flat, slotted head,
       a pointed shank, and a course thread. Academic Press Dictionary of Science and
       Technology 2378 (Christopher Morris ed., 1992).

Def. Br. 18–19. The court notes that its survey of other dictionaries also uncovered the following
definitions suggesting the same:

       Wood screw: [Des Eng] A threaded fastener with a pointed shank, a slotted or
       recessed head, and a sharp tapered thread of relatively coarse pitch for use only
       in wood. McGraw-Hill Dictionary of Scientific and Technical Terms 2302 (6th ed.
       2003)
                                                                           (footnote continued)
Court No. 09-00390                                                                      Page 24


that these screws may be used with wood or to join wood with metal or other resilient

materials. 25 Plaintiff does not provide any definitions for a wood screw.




        Wood screw: Mechanical Devices, a metal fastener used for wood, usually having
        a flat, slotted head, a pointed shank, and a coarse thread. Academic Press
        Dictionary of Science and Technology 2378 (Christopher Morris ed., 1992).
25
   Defendant cites to a definition defining a wood screw as “a metallic screw specifically adapted
for fastening together parts of woodwork or wood and metal.” Def. Br. 18 (quoting Oxford English
Dictionary 504 (2d ed. 1989)). The court has uncovered at least one other dictionary definition
suggesting that wood screws may be used in wood and other materials, which defines a wood
screw as “a helically threaded metal fastener having a pointed end; forms its own mating thread
when driven into wood or other resilient materials.” Dictionary of Architecture & Construction 1017
(Cyril. M. Harris ed., 3rd ed. 2000).
Court No. 09-00390                                                                      Page 25


       The dictionary definitions offered by Plaintiff for a self-tapping screw emphasize

the screw’s hardened material 26 and its ability to cut its own thread. 27 GRK Br. 13–14.

Defendant does not offer any dictionary definitions for self-tapping screws.


26
  Plaintiff offers the following definitions for a self-tapping screw that emphasize the screw’s
hardened material:

       Self-Tapping Screw: have a specially hardened thread that makes it possible for
       the screws to form their own internal thread in sheet metal and soft materials when
       driven into a hole that has been drilled, punched, or punched and reamed. The
       use of self-tapping screws eliminates costly tapping operations and saves time in
       assembling parts. McGraw-Hill Encyclopedia of Science and Technology 146 (9th
       ed. 2002).

       Self-Tapping Screw: a specially hardened screw used in wood and soft metals that
       self-cuts its own thread into the material being worked on. Also, Tapping Screw,
       Sheet Metal Screw. Academic Press Dictionary of Science and Technology 1951
       (Christopher Morris ed., 1992).

GRK Br. 14. According to Plaintiff, the latter definition provides that a self-tapping screw can be
used in both wood and soft metals. Id. at 14 n.4.
       Other definitions uncovered by the court also emphasize the hardened nature of the self-
tapping screw and the fact that it cuts its own thread:

       Self-tapping: a. Mech. Designating a hardened screw that will cut its own thread in
       a hole in metal that would otherwise need tapping. 14 The Oxford English
       Dictionary 932 (J.A. Simpson and J.S.C. Weiner eds., 2nd ed. 1989).

       Self-tapping screw: a hardened steel screw with a special, partially slotted shank
       which, as it is screwed into a plain hole, will cut or form its own threads. Hugh
       Brooks, Encyclopedia of Building and Construction Terms 317 (1983).

       Self-tapping screw: [Des Eng.] A screw with a specially hardened thread that
       makes it possible for the screw to form its own internal thread in sheet metal and
       soft materials when driven into a hole. Also known as sheet-metal screw; tapping
       screw. McGraw-Hill Dictionary of Scientific and Technical Terms 1893 (6th ed.
       2003).

       Self-tapping screw: Mechanical Devices, a specially hardened screw used in wood
       and soft metals that self-cuts its own threads into the material being worked on.
       Also, TAPPING SCREW, SHEET METAL SCREW. Academic Press Dictionary of
       Science and Technology 1951 (Christopher Morris ed., 1992).

                                                                              (footnote continued)
Court No. 09-00390                                                                       Page 26


       The parties have also offered three industry standards published by ANSI/ASME

for the court to consider in construing the meaning of the tariff terms: (i) Glossary of Terms

for Mechanical Fasteners ASME B18.12-2001 (“ANSI/ASME Standard B18.12”); (ii)

Wood Screws ANSI B18.6.1-1981 (“ANSI/ASME Standard B18.6.1”); (iii) Thread Forming

and Thread Cutting Tapping Screws and Metallic Drive Screws (Inch Series) ASME

B18.6.4-1998 (“ANSI/ASME Standard B18.6.4”). 28 Exs. Supp. Mot. Summ. J. Pl. GRK

Canada, Ltd. Exs. 8–10, Feb. 29, 2016, ECF No. 71-7.

       The terms in the ANSI/ASME Standards do not mirror those of the HTSUS

subheadings. In particular, ANSI/ASME Standard B18.12 and B18.6.4, when read in

conjunction, define wood screws as a type of tapping screw, i.e., a thread forming tapping




       Sheet-metal screw, tapping screw: a coarse-threaded tapered screw with a slotted
       head for driving with a screwdriver; used for fastening sheet metal and other
       materials, without a tapped hole and without a nut. Dictionary of Architecture &
       Construction 826 (Cyril. M. Harris ed., 3rd ed. 2000).
27
  Plaintiff points to the following definition emphasizing the thread cutting aspect of self-tapping
screws:

       Tapping Screw: a hardened screw that cuts threads in the pieces it secures and
       that is used in materials which would otherwise require a separate tapping
       operation or the use of a nut. Webster’s Third New International Dictionary of the
       English Language, Unabridged 2340 (Philip Babcock Gove, Ph. D. and Merriam-
       Webster Editorial Staff eds. 1981).

GRK Br. 13.
28
   Defendant does not rely on the standard for wood screws under ANSI/ASME Standard B18.6.1
“because it is a limited product specification, not a definition, and thus cannot constitute the
common meaning of the tariff term ‘other wood screws.’” Def. Resp. & Reply 11. The court may
consult any source that contains reliable information in defining the tariff terms. Carl Zeiss, 195
F.3d at 1379. Notwithstanding the fact that ANSI/ASME Standard B18.6.1 does not cover all
wood screws, it is a reliable source that helps distinguish wood screws from self-tapping screws.
Court No. 09-00390                                                                       Page 27


screw. 29 ANSI/ASME Standard B18.12 defines a tapping screw as one with “a slotted,

recessed, or wrenching head and . . . designed to form or cut a mating thread in one or

more of the parts to be assembled.” 30            ANSI/ASME Standard B18.12 ¶ 3.1.2.22.

ANSI/ASME Standard B18.6.4 describes two types of tapping screws, thread forming and

thread cutting screws:

       1.3.1 Thread Forming Tapping Screws. Thread forming tapping screws are
       generally for application in materials where large internal stresses are
       permissible, or desirable, to increase resistance to loosening. 31

       1.3.2 Thread Cutting Tapping Screws. Thread cutting tapping screws are
       generally for application in materials where disruptive internal stresses are
       undesirable or where excessive driving torques are encountered with thread
       forming screws. 32




29 Reading ANSI/ASME Standards B18.12 and B18.6.4 in isolation would not aid our inquiry as
they do not categorize screws along the same lines as the HTSUS.
30 HTSUS subheading 7318.14.10 refers to “Self-tapping screws.” The relevant ANSI/ASME

Standards speak of tapping screws and make no reference to self-tapping screws. A review of
the relevant sources as well as expert testimony indicates that both phrases refer to screws that
cut their own threads. The ANSI/ASME Standard refers to two types of tapping screws, thread
forming and thread cutting. ANSI/ASME Standard B18.12. While Plaintiff and Defendant
disagree as a factual matter regarding whether GRK’s screws can bore (initiate) their own hole in
all applications, none of the relevant sources require a self-tapping screw or a tapping screw to
be able to bore its own hole. A self-tapping screw that bores its own hole is referred to as a self-
drilling or self-piercing screw depending on whether it is a thread forming or thread cutting screw.
See ANSI/ASME Standard B18.12; Exs. Supp. Mot. Summ. J. Pl. GRK Canada, Ltd. Ex. 7 at 9,
Feb. 29, 2016, ECF No. 71-6; Exs. Supp. Mot. Summ. J. Pl. GRK Canada, Ltd. Ex. 19 at 1, 3,
Feb. 29, 2016, ECF No. 71-11.
31
   The ANSI/ASME Standard provides that the different types of thread forming tapping screws
are intended to be used in materials such as thin metal, resin impregnated plywood, asbestos
compositions, nonferrous castings, and plastics. ANSI/ASME Standard B18.6.4 ¶ 1.3.1.
32
   The ANSI/ASME Standard provides that the different types of thread cutting tapping screws are
intended to be used in materials such as aluminum, zinc, lead die castings, steel sheets and
shapes, cast iron, brass, plastics, and asbestos. ANSI/ASME Standard B18.6.4 ¶ 1.3.2.
Court No. 09-00390                                                               Page 28


ANSI/ASME Standard B18.6.4 ¶¶ 1.3.1, 1.3.2. Under the ANSI/ASME Standard, any

screw that either cuts or forms its own thread is a tapping screw. Therefore, under the

ANSI/ASME Standards a wood screw would be a type of thread forming tapping screw.

      Although the ANSI/AME Standards do not mirror the HTSUS subheadings, a

careful examination of the relevant standards aids in distinguishing between the HTSUS

subheadings at issue. In particular, ANSI/ASME Standard B18.12 defines a wood screw

as:

      a thread forming screw having 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
      assembled into wood or other resilient materials.

ANSI/ASME Standard B18.12 ¶ 3.1.2.30. Further, ANSI/ASME Standard B18.6.4 states

that another type of tapping screw is the thread cutting tapping screw and is “generally

for application in materials where disruptive internal stresses are undesirable or where

excessive driving torques are encountered with thread forming screws.” ANSI/ASME

Standard B18.6.4 ¶ 1.3.2. Therefore, while the ANSI/ASME Standards do not mirror the

language of the HTSUS subheadings, they do recognize a wood screw as a thread

forming screw and a tapping screw as a thread cutting screw used “where disruptive

internal stresses are undesirable or where excessive driving torques are encountered.”

Id.

      The amount of torque a screw is able to withstand is a defining characteristic of

tapping screws according to the ANSI/ASME Standard.           The ANSI/ASME Standard

provides that tapping screws must meet certain performance requirements. ANSI/ASME
Court No. 09-00390                                                                 Page 29


Standard B18.6.4 ¶¶ 2.6, 2.9. Among these performance requirements, a tapping screw

must satisfy a torsional strength test, which requires that a tapping screw be able to

withstand a minimum level of torque. ANSI/ASME Standard B18.6.4 ¶ 2.9.1.2. The

minimum torsional strength requirements for tapping screws vary depending on the type

and size of the tapping screw. See ANSI/ASME Standard B18.6.4 at Table 4. The

minimum requirements specified in the standard “shall apply to all types of carbon steel

tapping screws only.” ANSI/ASME Standard B18.6.4 ¶ 2.9.1. However, the ANSI/ASME

Standard further provides that tapping screws made from other materials, including

corrosion resistant steel, must also satisfy the torsional strength requirements of a tapping

screw. 33 See ANSI/ASME Standard B18.6.4 ¶ 2.9.1.

       At first blush, the torsional requirements would seem to apply to both thread cutting

and thread forming tapping screws. However, the ANSI/ASME Standard for wood screws

does not provide for a torsional strength requirement.         See ANSI/ASME Standard

B18.6.1; Exs. Supp. Mot. Summ. J. Pl. GRK Canada, Ltd. Ex. 5 at 82–83, Feb. 29, 2016,

ECF No. 71-5 (“Greenslade Dep.”). Therefore, the ANSI/ASME Standard indicates there

are wood screws, which are thread forming screws, and there are thread cutting tapping

screws, which have higher performance requirements than wood screws. The language

of the ANSI/ASME Standard for a wood screw tracks that of the HTSUS subheading




33 The ANSI/ASME Standard does not specify the minimum torsional strength requirements for
tapping screws made from materials other than carbon steel and leaves it to manufacturers and
purchasers to determine the appropriate minimum requirement for these other materials.
ANSI/ASME Standard B18.6.4 ¶ 2.9.1.
Court No. 09-00390                                                                  Page 30


7318.12.00, suggesting that HTSUS subheading 7318.14.10 covers thread cutting

tapping screws as that term is used under the ANSI/ASME Standard.

       The court next considers intended use, i.e., how a typical user would use the

product, and its impact on defining the tariff term. GRK II, 761 F.3d at 1358. The tariff

terms and 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.   See Explanatory Notes for HTSUS heading 7318.              Nearly all dictionary

definitions suggest that wood screws are intended to be used to affix wood to wood or to

other fibrous materials. In contrast, the ANSI/ASME Standards indicate that tapping

screws are intended to be used to fasten non-fibrous materials to either non-fibrous or

fibrous material. ANSI/ASME Standard B18.6.4 ¶ 1.3.

       The parties disagree as to whether the intended use of a self-tapping screw is

limited to fastening non-fibrous material to other non-fibrous material or whether the self-

tapping screw may also be intended to be used to fasten non-fibrous material to fibrous

material (i.e., wood). Def. Br. 10, 22–23; Def. Resp. & Reply 4, 15; GRK Br. 36–37; GRK

Resp. 29–30. Nothing in the relevant sources suggests that a self-tapping screw’s

intended use is only to fasten non-fibrous materials. Indeed, 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. See, e.g., Academic Press Dictionary of Science and Technology

1951 (Christopher Morris ed., 1992) (defining “Self-Tapping Screw as a specially

hardened screw used in wood and soft metals that self-cuts its own thread into the
Court No. 09-00390                                                                Page 31


material being worked on. Also, Tapping Screw, Sheet Metal Screw.”); ANSI/ASME

Standard 18.6.4 ¶¶ 1.3.1, 1.3.2. Therefore, the intended use of a self-tapping screw is to

affix a non-fibrous material to any other material.

       In contrast, nearly all dictionary definitions cited by the parties for wood screws

suggest that classifying merchandise as a wood screw requires that the screw be used

to fasten wood to wood or other fibrous materials. See,e.g., McGraw-Hill Dictionary of

Scientific and Technical Terms 2302 (6th ed. 2003) (defining Wood Screw as a threaded

fastener with a pointed shank, a slotted or recessed head, and a sharp tapered thread of

relatively course pitch for use only in wood); Academic Press Dictionary of Science and

Technology 2378 (Christopher Morris ed., 1992) (defining Wood Screw as a metal

fastener used for wood, usually having a flat, slotted head, a pointed shank, and a course

thread). Nearly all other dictionaries consulted by the court suggest that wood screws

are used only in wood. See, e.g., McGraw-Hill Dictionary of Scientific and Technical

Terms 2302 (6th ed. 2003) (defining Wood screw as “[Des Eng] A threaded fastener with

a pointed shank, a slotted or recessed head, and a sharp tapered thread of relatively

coarse pitch for use only in wood.”); Academic Press Dictionary of Science and

Technology 2378 (Christopher Morris ed., 1992) (defining Wood screw as “Mechanical

Devices, a metal fastener used for wood, usually having a flat, slotted head, a pointed

shank, and a coarse thread.”).

       To sum up, based on the words of the subheadings, the Explanatory Notes, the

relevant standards, the dictionary definitions of the terms as well as the intended use, the

court finds that (1) the common and commercial meaning of a wood screw is a screw that
Court No. 09-00390                                                                   Page 32


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 a self-

tapping screw is a specially hardened screw, 34 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.

       One authority offered in this case confirms these definitions of the tariff terms at

issue. As already discussed, in construing tariff terms “a court may rely upon its own

understanding of the terms used and may consult lexicographic and scientific authorities,

dictionaries, and other reliable information sources.” Carl Zeiss, 195 F.3d at 1378.

Among the other reliable information sources, courts may also look to expert testimony,

although such testimony is advisory, not binding, and the weight to be given to such

testimony depends on various factors. See United States v. Crosse & Blackwell, Inc., 22

C.C.P.A. 214, 217–218 (1934) (while opinions of witnesses as to common meanings of

terms may properly be considered as advisory, the usual rule is to consult standard

lexicographers to determine the common meaning of statutory words); United States v.

John B. Stetson Co., 21 C.C.P.A. 3, 9 (1933) (a court may ascertain the common


34 Defendant argues that Plaintiff cannot establish that wood screws are not case-hardened
because the ANSI/ASME Standard provides that a wood screw may be case-hardened. Def. Br.
22. The ANSI/ASME Standard states that a “[w]ood screw shall be supplied in steel, corrosion
resistant steel, brass, aluminum alloy, or other materials as designated by the purchaser.”
ANSI/ASME Standard B18.6.1 ¶ 2.6. While the ANSI/ASME Standard does not foreclose the
possibility that a wood screw may be case-hardened, the material of the screw is only one of the
physical characteristics that define a self-tapping screw. A self-tapping screw must also meet
minimum torsional requirements, be able to cut a mating thread in non-fibrous materials, and be
able to fasten non-fibrous materials to other materials.
Court No. 09-00390                                                               Page 33


understanding of a tariff term by reference to works of standard lexicographers, scientific

authorities, the testimony of witnesses, which is advisory only, or by other means

available); Kahrs Int’l, Inc. v. United States, 35 CIT __, __, 791 F. Supp. 2d 1228, 1241

(2011) (opinions of expert witnesses pertaining to the common meaning of tariff terms

may be considered to the extent they are supported, and not contracted, by reliable

textual sources).

       Here, both Plaintiff and Defendant have offered expert authorities’ opinions

relevant to the meaning of the tariff terms. See Greenslade Dep.; Exs. Supp. Mot. Summ.

J. Pl. GRK Canada, Ltd. Ex. 7, Feb. 29, 2016, ECF No. 71-6 (“Bohnhoff Rep.”); Exs.

Supp. Mot. Summ. J. Pl. GRK Canada, Ltd. Ex. 19, Feb. 29, 2016, ECF No. 71-11

(“Bohnhoff Suppl. Rep.”). Dr. Bohnhoff’s description of a self-tapping screw coincides

with the court’s definition. He provides the following explanation of what constitutes a

tapping or self-tapping screw:

       [I]t is important to understand that female (internal) threads are formed by
       cutting and/or by compressing material. The cutting of female threads is
       referred to as tapping. A special tool used to cut internal threads is called
       a ''tap". Screws that cut their own threads are called "thread-cutting
       screws'', "tapping screws" or "self-tapping screws". Tapping is an
       irreversible operation as once a material is cut, it remains cut. Whereas
       some cutting operations remove material, other cuts (e.g. a single slit) may
       not.

Bohnhoff Suppl. Rep. 1. This explanation indicates it is the ability to cut material, as

opposed to the ability to compress material, which makes a screw a tapping screw or self-

tapping screw. Dr. Bohnhoff further clarifies that:
Court No. 09-00390                                                              Page 34


      Self-tapping should not be confused with self-drilling. Self-tapping is the
      cutting of female threads. This cutting may or may not result in the removal
      of material. Additionally, some self-tapping screws require a borehole (i.e.,
      a pre-drilled hole). Self-tapping screws that require a borehole are not
      considered self-drilling.

Bohnhoff Suppl. Rep. 4. Thus, not all self-tapping screws are capable of tapping without

need for a borehole, only a sub-class known as self-drilling screws.

      Mr. Greenslade, Defendant’s expert, states that self-tapping screws must meet

minimum torsional strength requirements. Greenslade Dep. 81, 89. No other expert

testimony contradicts this statement. Mr. Greenslade agrees that torsional strength

determines the ability of the screw to resist being twisted into two pieces and that to

increase torsional strength you need to have a harder screw. Id. Defendant’s expert

acknowledges that there is no such requirement for wood screws. See id. Therefore,

expert testimony confirms that the common and commercial meaning of self-tapping

screws are screws made of hardened steel, meeting minimum torsional strength

requirements, capable of cutting their own thread, and intended to be used with at least

one non-fibrous material.

      Defendant’s arguments that a self-tapping screw, by definition, is intended only for

use in fastening non-fibrous materials to other non-fibrous materials is not borne out by

the sources. Defendant’s expert comments that a screw designed to pass through

composite materials, even sheet metal, is still a wood screw if it is designed to anchor

into wood in accordance with the ANSI/ASME definition of wood screw. Id. at 156–158.

The ANSI/ASME definitions only address the ability of self-tapping screws to cut or form

mating threads in whatever material they are being applied to. The Explanatory Notes,
Court No. 09-00390                                                                  Page 35


although they speak of the ability of self-tapping screws to “cut their own passage into

thin sheets of metal, marble, slate, plastics, etc.,” do not indicate screws transform into

wood screws when those materials are used in conjunction with wood. Explanatory Notes

for HTSUS heading 7318. Defendant’s interpretation is further belied by the fact that the

Explanatory Notes explain the differences between screws for wood and those for metal

based upon physical characteristics, not based upon the fact they are used in wood. Id.

No dictionary definition offered by either party or consulted by the court limits self-tapping

screws to use in non-fibrous materials.

       The court has considered use, and there is no authority to suggest that a self-

tapping screw is limited to use with non-fibrous materials.         The Explanatory Notes

specifically provide that self-tapping screws resemble wood screws, but with additional

features that wood screws may not possess. Explanatory Notes for HTSUS heading

7318. Therefore, sharing features or applications with wood screws does not disqualify

a screw from being a self-tapping screw nor does the fact that self-tapping screws may

have features that make them also suitable to be used in wood.

   III. GRK’s Steel Screw Fasteners

       There is no genuine issue of a material fact and the court determines as a matter

of law that GRK’s screws are self-tapping screws classified under HTSUS subheading

7318.14. The term self-tapping screw under HTSUS subheading 7318.14 refers to

screws that are made of hardened steel, meet minimum torsional strength requirements,

cut their own mating thread into non-fibrous materials, and are intended to be used to

fasten non-fibrous materials to other materials.
Court No. 09-00390                                                                    Page 36


       It is uncontroverted that GRK’s R4 and Trim Head screws are capable of cutting a

mating thread in non-fibrous materials such as sheet metal, melamine, plastics, medium-

density fiberboard, cement fiberboard, particle board (also known as oriented strand

board, an engineered product consisting of wood chips glued together with a bonding

agent), modern composite wood decking made of recycled plastics with wood chips mixed

in, capstock decking, steel studs and other man-made composite materials. GRK Facts

¶ 30; Def. Facts Resp. ¶ 30; Exs. Supp. Mot. Summ. J. Pl. GRK Canada, Ltd. Ex. 2 at

75–81, Feb. 29, 2016, ECF No. 71-4 (“Walther Dep.”); Exs. Supp. Mot. Summ. J. Pl. GRK

Canada, Ltd. Ex. 6 ¶ 13(a), Feb. 29, 2016, ECF No. 71-5 (“Walther Aff.”); Exs. Supp. Mot.

Summ. J. Pl. GRK Canada, Ltd. Ex. 11 at 23–31, Feb. 29, 2016, ECF No. 71-8 (“Ryan

Dep.”); Exs. Supp. Mot. Summ. J. Pl. GRK Canada, Ltd. Ex. 12 at 20–29, Feb. 29, 2016,

ECF No. 71-8 (“Morlock Dep.”). It is also undisputed that the R4 and Trim Head screws

are made of either case-hardened carbon steel or stainless steel. Def. Facts ¶¶ 11, 12,

18, 19; GRK Facts Resp. ¶¶ 11, 12, 18, 19; GRK Facts ¶¶ 16–17; Def. Facts Resp.

¶¶ 16–17. It is likewise undisputed that the R4 and Trim Head screws meet minimum

torsional strength requirements. 35 GRK Facts ¶¶ 22, 24; Def. Facts Resp. ¶¶ 22, 24.

Therefore, GRK’s screws satisfy the physical characteristics of a self-tapping screw.



35
   Defendant argues that wood screws, in particular wood screws that are covered under
ANSI/ASME Standard B18.6.1 are also manufactured to meet minimum torsional strength
requirements. GRK Facts ¶ 36; Def. Facts Resp. ¶ 36. The ANSI/ASME Standard provides that
a wood screw “may be heat treated at the option of the purchaser or the manufacturer to develop
adequate torsional strength for the intended application.” ANSI/ASME Standard B18.6.1 ¶ 2.6.
Of course, in order for any screw to be merchantable it must have adequate torsional strength for

                                                                            (footnote continued)
Court No. 09-00390                                                                   Page 37


       The intended use of GRK’s screws supports their classification as self-tapping

screws. It is undisputed that the R4 and Trim Head screws are intended for fastening

non-fibrous materials to other materials. Def. Facts ¶ 35; GRK Facts Resp. ¶ 35; GRK

Facts ¶¶ 30–31; Def. Facts Resp. ¶¶ 30–31. GRK has offered testimony that GRK screws

are recommended for and intended to be used in applications that require a screw that

can cut its threads through non-fibrous materials. Walther Dep. 75–81; Walther Aff.

¶ 13(a); Morlock Dep. 20–29; Ryan Dep. 23–31. That same testimony indicates GRK’s

R4 and Trim Head screws can be used in non-fibrous materials such as sheet metal,

melamine, plastics, medium-density fiberboard, cement fiberboard, particle board (also

known as oriented strand board, an engineered product consisting of wood chips glued

together with a bonding agent), modern composite wood decking made of recycled

plastics with wood chips mixed in, capstock decking, steel studs, and other man-made

composite materials. Walther Dep. 75–81; Walther Aff. ¶ 13(a); Morlock Dep. 20–29;

Ryan Dep. 23–31. Defendant does not refute these capabilities, but rather cites GRK’s

sales documentation that certain features of the same screws make them suitable for a

variety of uses in wood, such as wood decking, fine carpentry, or to mate certain non-

wood materials like plastics or composite materials to wood. Def. Facts Resp. ¶ 31 (citing

Def. Br. Ex. F at 141). That the screws are also capable of being used with wood or to




the applications the screw is well-suited for. However, that does not mean that wood screws are
required to meet a certain standardized minimum torsional strength requirement. It is undisputed
that GRK’s screws meet a minimum requirement, and Defendant’s expert states that there is no
such requirement for wood screws. See Greenslade Dep. 82–83.
Court No. 09-00390                                                               Page 38


fasten fibrous and non-fibrous materials does not undermine the intended use of the

screws.

      Further, additional available features of GRK’s screws confirm their intended use

with non-fibrous material. The Climatek coating, which is available for the case-hardened

carbon steel screws, includes a water-based lubricant specifically intended to reduce the

torque needed to drive the screws and allow them to be driven into "even very, very dense

materials." GRK Br. 35 (citing Walther Dep. 59–61); GRK Facts ¶ 62; Def. Facts Resp.

¶ 62. That Climatek is intended to reduce torque signals GRK’s screws are intended for

applications that require high amounts of torque. Since only the standards for self-tapping

screws require a minimum torsional strength, it follows that GRK’s screws are specifically

designed for use in dense materials requiring higher amounts of torque to drive the

screws. Defendant does not dispute the availability of the Climatek coating on the case-

hardened carbon steel screws or that the coating is a lubricant intended to reduce torque

for driving. Def. Facts ¶¶ 11, 18; Def. Facts Resp. ¶ 62. In fact, Defendant concedes the

purpose of Climatek coating is to reduce torque, stating that the Climatek coated case-

hardened steel allows the screws to be anchored in pressure treated lumber, which is a

hard, dense material that would require more torque for driving screws. Def. Br. 6, 7, 19,

20.

      Both the R4 and RT screws also have features that are designed to help prevent

the occurrence of mushrooming. The R4 screw possesses a self-countersinking head

that is able to penetrate “hard, brittle, or thin plasticized surfaces veneered onto lumber

or composite woods” without causing mushrooming. Def. Facts ¶ 24; GRK Facts Resp.
Court No. 09-00390                                                                   Page 39


¶ 24. The RT screws have been specifically designed to avoid mushrooming with its

secondary reverse threading, which pulls any displaced material rising to the surface back

into the screw hole. GRK Facts ¶ 63; Def. Facts Resp. ¶ 63; see also Morlock Dep. 34–

35; Ryan Dep. 34–35. Without these features, non-fibrous material that the screw cuts

and removes as it is driven would rise and create a mushroom on the surface. GRK Facts

¶ 63; Def. Facts Resp. ¶ 63. Mushrooming is not a concern for wood and fibrous material

applications.   See GRK Facts ¶ 63; Def. Facts Resp. ¶ 63; see also Morlock Dep. 34–

35; Ryan Dep. 34–35.

       Likewise, the special points and threading patterns available on many of the

screws facilitate the self-tapping function through dense non-fibrous material. All the

screws have a gimlet point. GRK Facts ¶ 25; Def. Facts Resp. ¶ 25. R4 screws that are

1¼ inches and longer and all RT and Fin/Trim screws have a Type 17 point. Def. Facts

¶¶ 6, 14; GRK Facts Resp. ¶¶ 6, 14. The Type 17 point “allows the screw to get started

more easily and reduces the torque needed to drive the screw,” GRK Facts ¶ 28; Def.

Facts Resp. ¶ 28. It is undisputed that GRK screws over 1¼ inches and longer also have

W-Cut threading which act like a sawblade as it cuts through material. 36 Def. Facts ¶¶ 8,

15; GRK Facts Resp. ¶¶ 8, 15. None of these features are requirements for self-tapping


36
  That GRK’s screws that are 1¼ inches or shorter do not have a Type 17 point, W-Cut, or CEE
threading is a result of concerns about the fastening function of the screw, not their tapping
function. GRK’s president explained that the reason these screws lack W-Cut threading is
because “when you remove material from the thread by carving notches into it, then you also lose
holding power, you don’t have enough fully formed threads anymore in whatever you’re going into
with the screw to give it a lot of holding power, prevent it from pulling out.” Walther Dep. 20.
Likewise, GRK’s president explained that there would be no purpose of putting CEE threads,
which widen the screw hole, because doing so would “probably take away one or two of the actual
holding threads and diminish the holding power again.” Id. at 66.
Court No. 09-00390                                                             Page 40


screws. However, these features better enable the screws at issue to be used in materials

such as “sheet metal, plastics, medium-density fiberboard, polyvinyl chloride (PVC)

board, cement fiberboard, melamine, arborite, and other man-made composite

materials,” and thus the intended uses of GRK’s screws support that they are self-tapping

screws. GRK Facts ¶ 30; Def. Facts Resp. ¶ 30.

      Therefore, GRK’s R4 and Trim Head screws are self-tapping screws.

                                    CONCLUSION

      For the foregoing reasons, the steel screw fasteners at issue in this case are

properly classifiable as “Self-tapping screws” under HTSUS subheading 7318.14.10.

Therefore, Plaintiff’s motion for summary judgment is granted, and Defendant’s motion

for summary judgment is denied. Judgment will be entered accordingly.



                                                /s/ Claire R. Kelly
                                               Claire R. Kelly, Judge

Dated: July 15, 2016
      New York, New York