Timber Products Co. v. United States

Slip Op. 06-162

United States Court of International Trade

TIMBER PRODUCTS CO.,

Plaintiff,

v. Before: Pogue, Judge
Court No. 01-00216

UNITED STATES,

Defendant.

[Plaintiff fails to present sufficient evidence to demonstrate
commercial designation; judgment entered for Defendant.]

Decided: November 8,2006

Sandler, Travis & Rosenberg, P.A. (Beth C. Ring, Edward M. Joffe)
for Plaintiff.

Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director, Patricia M. McCarthy, Assistant Director, Commercial
Litigation Branch - Civil Division, U.S. Department of Justice,
(Edward F. Kenny); Mikki Graves Walser, Attorney, International
Trade Field Office, U.S. Department of Justice, for Defendant.

OPINION

Pogue, Judge: This matter is before the court pursuant to

remand from the Court of Appeals for the Federal Circuit (“CAFC”)of

Timber Prods. Co. v. United States, 28 CIT ___, 341 F. Supp. 2d

1241 (2004)1 (“Timber I”). In Timber I, the court found, on cross-

motions for summary judgment, that the U.S. Bureau of Customs and

Border Protection (“Customs”) correctly classified the Plaintiff’s

1
Familiarity with the court’s prior opinion is presumed.
Court No. 01-00216 Page 2

plywood entries under the residual subheading 4412.14.302 of the

Harmonized Tariff Schedule of the United States (“HTSUS”) rather

than the more specific provision 4412.13.403 advocated by

Plaintiff, covering “plywood . . . [w]ith at least one outer ply of

. . . ‘Virola.’” The CAFC vacated and remanded Timber I, directing

that this court determine whether or not Plaintiff could prove a

2
Subheading 4412.14.30, HTSUS, reads:

4412 Plywood, veneered panels and similar laminated wood:
Plywood consisting solely of sheets of wood,
each ply not exceeding 6 mm in thickness:
4412.14 Other, with at least one outer ply
of nonconiferous wood:

. . .
4412.14.30 Other.

Subheading 4412.14.30, HTSUS (1997).
3
Subheading 4412.13.40, HTSUS reads:

4412 Plywood, veneered panels and similar laminated wood
(con.):
Plywood consisting solely of sheets of wood, each
ply not exceeding 6 mm in thickness:
4412.13 With at least one outer ply of tropical wood
specified in subheading note 1 to this
chapter:
. . .
4412.13.40 Other:
With at least one outer ply of
the following tropical woods:
Dark Red Meranti, Light Red
Meranti, White Lauan, Sipo,
Limba, Okoumé, Obeche, Acajou
d'Afrique, Sapelli, Virola,
Mahogany, Palissandre de Para,
Palissandre de Rio or
Palissandre de Rose.
Subheading 4412.13.40, HTSUS (1997).
Court No. 01-00216 Page 3

commercial designation for “Virola,” as used in the plywood trade

alone, that would apply to Plaintiff’s entries at issue. Timber

Prods. Co. v. United States, 417 F. 3d 1198 (Fed. Cir. 2005)

(“Timber II”).

BACKGROUND

Plaintiff imported the subject entries of plywood from Brazil

during 1996 and 1997. On its shipping and entry documents,

Plaintiff identified the merchandise as “Sumauma (C. Petanda)

Plywood,” “Faveira (Parkia spp.) Plywood,” “Amesclao (T.

Burseaefolia) Plywood,” “Brazilian White Virola Rotary Cut

Plywood,” “White Virola Plywood,” “White Virola (Virola spp.)

Plywood,” and “Edaiply Faveira (Parkia spp.).” Except for “Virola”

the species identified are not listed separately as tropical woods

in the HTSUS.4 Therefore, Customs classified the entries under

subheading 4212.14.30, HTSUS, as plywood with at least one outer

face of non-coniferous wood. Plaintiff contends that Customs

incorrectly classified these goods, because there is a commercial

4
They are not listed in subheading 4412.13.40, HTSUS, nor
are they listed in Subheading Note 1 to Chapter 44. See note 9
on p. 6, below.
Court No. 01-00216 Page 4

meaning of the term “Virola plywood”5 that encompasses many

different woods, including “Sumauma” “Faveira” and “Amesclao.”

Plaintiff admits that it cannot show that the entries at issue

consisted of plywood with at least one outer ply of wood from a

tree of the “Virola” genus6 (including all the species thereof,

i.e. Virola spp.7) but insists before this court that the term

“Virola” has a commercial designation, and that the entries at

issue consisted of plywood with at least one outer ply of species

that fit into the commercial designation for “Virola.”8 In Timber

5
For ease of reference, the court adopts the Plaintiff’s
usage of the term “Virola” or “Virola plywood” to refer to the
mixed tropical hardwood plywood product imported by Plaintiff at
issue in this case. This usage is not probative with regard to
the sufficiency of Plaintiff’s evidence of the existence of a
commercial designation for the term “Virola plywood” or the term
“Virola” as it is used in the plywood trade.
6
A “genus” is “[a] classificatory group comprehending a
number of species (sometimes a single species) possessing certain
common structural characteristics distinct from those of any
other group.” VI The Oxford English Dictionary 456 (2d ed. 1989).
7
“Spp.” stands for species plurales. The term and
abbreviation refer to all of the species of the given genus.
Def.’s Ex. RR, Martin Chudnoff, United States Department of
Agriculture Forest Service, Tropical Timbers of the World, 4
(1984); Christopher Morris, Academic Press Dictionary of Science
& Technology, 919, 2047, 2067 (Christopher Morris ed., 1992).
8
The commercial designation test requires that the term that
is being offered as having a commercial meaning be the exact term
that is used in the statute. See United States v. Julius Wile
Sons & Co., 22 C.C.P.A. 267, 270 (1934) (“the invariable rule
[is] that the proof of commercial designation must be made of the
exact statutory word or words.”). It appears that Plaintiff
attempts to prove the commercial designation of the term “Virola
plywood,” whereas the HTSUS never uses the term “Virola plywood”
but rather refers to “plywood” with an outer ply of “one of the
(continued...)
Court No. 01-00216 Page 5

I, the court found, primarily on the basis of statutory

construction, that the Plaintiff did not prove the existence of any

intent that the statute was meant to include a commercial

designation of “Virola” that extended to species beyond the genus

Virola. In this context, the court found that the Plaintiff did

not produce sufficient evidence to support its “asserted commercial

designation.” Timber I, 28 CIT at __, 341 F. Supp. 2d at 1250-51.

The CAFC vacated the decision in Timber I, finding that the

court “improperly required Timber [Plaintiff] to present evidence

from outside the plywood trade,” Timber II, 417 F. 3d at 1202-03,

and stating that “[t]he relevant trade for analyzing whether a

tariff term has an established commercial meaning is determined by

the merchandise before the court in a particular case, not by all

the merchandise to which the tariff term might apply.” Id. at 1202.

The CAFC remanded the case to the court to “reconsider whether

Timber proved a commercial meaning for ‘Virola’ within the plywood

trade alone.” Id. at 1203.

In giving full effect to the CAFC’s decision, the court

recognizes that, by remanding the case and positing that this court

must consider Plaintiff’s proof of commercial designation within

the plywood trade alone, the CAFC implicitly must have found that

there was no Congressional intent evidenced in the statute that

8
(...continued)
following woods” where the names of some specific woods are used
interchangeably. The court will presume that this difference is
not material.
Court No. 01-00216 Page 6

would trump any possible commercial designation. Cf. Witex,

U.S.A., Inc. v. United States, 28 CIT __, __, 353 F. Supp. 2d 1310,

1317 (2004) (“an established commercial meaning prevails over a

common meaning unless contrary to Congressional intent.”)(citing

Maddock v. Magone, 152 U.S. 368, 371 (1894)); Cadwalader v. Zeh,

151 U.S. 171, 176 (1894).

Specifically, the CAFC must have found that the structure of

Chapter 44 of the tariff schedule did not indicate a desire on

Congress’ part to have a uniform meaning for the term “Virola” that

was preclusive of a commercial designation of the term “Virola”

particular to the plywood trade. (“Virola” is mentioned several

times throughout Chapter 44 of the HTSUS.9)

9
Subheading note 1 to Chapter 44 reads as follows:

1. For the purposes of subheadings 4403.41 to 4403.49, 4407.24
to 4407.29, 4408.31 to 4408.39 and 4412.13 to 4412.99, the
expression “tropical wood” means one of the following types
of wood:

Abura, Acajou d’Afrique, Afrormosia, Ako, Alan, Andiroba,
Aningré, Avodiré, Azobé, Balau, Balsa, Bossé clair, Bossé foncé,
Cativo, Cedro, Dabema, Dark Red Meranti, Dibétou, Doussié,
Framiré, Freijo, Fromager, Fuma, Geronggang, Ilomba, Imbuia, Ipé,
Iroko, Jaboty, Jelutong, Jequitiba, Jongkong, Kapur, Kempas,
Keruing, Kosipo, Kotibé, Koto, Light Red Meranti, Limba, Louro,
Maçaranduba, Mahogany, Makoré, Mansonia, Mengkulang, Meranti
Bakau, Merawan, Merbau, Merpuah, Mersawa, Moabi, Niangon, Nyatoh,
Obeche, Okoumé, Onzabili, Orey, Ovengkol, Ozigo, Padauk, Paldao,
Palissandre de Guatemala, Palissandre de Para, Palissandre de
Rio, Palissandre de Rose, Pau Marfim, Pulai, Punah, Ramin,
Sapelli, Saqui-Saqui, Sepetir, Sipo, Sucupira, Suren, Teak,
Tiama, Tola, Virola, White Lauan, White Meranti, White Seraya,
Yellow Meranti.

Subheading note 1, Chapter 44 HTSUS (second emphasis added). In
(continued...)
Court No. 01-00216 Page 7

As both this court and the CAFC recognized, there is no

definition of the term “Virola” provided in the HTSUS. Similarly,

both this court and the CAFC found that the common meaning of the

term “Virola” is “Virola spp.”10 However, the CAFC found that

though the term “Virola” is used in essentially the same manner

throughout Chapter 44, such use was not sufficient evidence of

statutory intent to preclude a contrary commercial designation in

the plywood trade alone. Therefore, pursuant to the CAFC’s remand,

this court held a trial to permit Plaintiff to produce evidence

that demonstrates that a commercial designation exists for the term

“Virola” in the plywood trade alone and that the entries at issue

meet such definition.

9
(...continued)
some places Chapter 44 references “Virola,” while at other points
references “tropical wood.”
10
The annex to the Explanatory Notes for Chapter 44 does
provide a description, in the form of a chart, comparing the
woods listed in subheading note 1 of Chapter 44 against the
scientific names of the trees which are denoted by that name, as
well as common names for the trees in a variety of countries.
Harmonized Commodity Description and Coding System, 2 Explanatory
Notes “Annex: Appellation of Certain Tropical Woods” at 690, 713
(2d ed. 1996) (“Explanatory Notes Annex to Chapter 44"). The
chart indicates that the scientific name corresponding to the
term “Virola” is “Virola spp.” The chart also provides local
names for Virola in countries in which Virola is found. The
chart indicates that Virola is found in Brazil, Central America,
Colombia, Ecuador, French Guiana, Guyana, Honduras, Peru,
Surinam, Trinidad and Tobago and Venezuela. Other than Virola,
none of the wood-names at issue in this proceeding, such as
Sumauma or Amesclao, are referenced in this chart.
Court No. 01-00216 Page 8

FINDINGS OF FACT

(A) Uncontested Facts

The parties have agreed to the facts that follow.

1. This action contests the tariff classification by

Customs of certain plywood imported from Brazil into the United

States through the Customs Port of Philadelphia on or between July

6, 1996, and December 2, 1997.

2. Timber Products Company (“Timber”) is the importer

of record of the merchandise in the entries which are the subject

of this action.

3. The entries at issue were liquidated, as entered, on

or between December 27, 1996 and October 16, 1998.

4. All liquidated duties, charges or exactions were

timely paid and, with the exception of Protest No. 1001-97-100397

involving Entry No. 334-1009194-7, the parties agree that all of

the entries at issue were timely protested.

5. Plywood consists of a panel composed of three or

more sheets or “veneers” glued and pressed one on the other which

are generally disposed so that the grains of successive layers are

at right angles.

6. Each component veneer of plywood is referred to as

a “ply.”

7. Plywood is usually formed of an odd number of plies,

with one outer ply called the “face,” the other outer ply called
Court No. 01-00216 Page 9

the “backing,” and the middle ply or plies called the “core.”

8. While the individual plies comprising a panel of

plywood may be of separate and distinct botanical species, plywood

is identified in the trade based on the species of its “face” ply.

9. No single ply comprising the imported plywood

exceeds 6 mm in thickness.

10. None of the imported plywood is surface covered.

11. The imported merchandise is described on the

commercial invoices as Sumauma (C. Petanda) Plywood, Faveira

(Parkia Spp.) Plywood, Amesclao (T. Burseaefolia) Plywood,

Brazilian White Rotary Cut Plywood, White Virola Plywood, White

Virola (Virola spp.) Plywood, and Edaiply Faveira (Parkia spp.).

12. During the time the imported plywood was entered,

plywood with an outer ply of Virola was classifiable under

subheading 4412.13.40, HTSUS.

13. Subheading 4412.13.40, HTSUS, was enacted by

Presidential Proclamation, effective January 1, 1996.

14. At the time the imported plywood was entered,

plywood from Brazil classifiable under subheading 4412.13.40,

HTSUS, was duty-free under the Generalized System of Preferences

(“GSP”).

15. The imported merchandise is wholly the growth,

product or manufacture of Brazil and was imported directly into the

United States from Brazil.
Court No. 01-00216 Page 10

16. The botanical identity of the species of each of the

outer plies specifically, including each face ply, on each panel in

each crate in each entry of the imported plywood is not known.

17. Virola is the name of a botanical genus consisting

of approximately 45-60 different species. “Virola spp.” denotes

all species of the genus Virola. Virola is also a trade, common

and/or commercial term.

18. Sumauma is a trade or common term used to identify

the species Ceiba petandra which is of Latin American origin.

19. Faveira (also spelled Faveria) is a trade or common

term used to identify all species of the genus Parkia (Parkia spp.)

of Latin American origin.

20. Amasclao (also spelled Amesclao) is a trade or

common term used to identify the species of the genera Trattinickia

and Tetragastris of Latin American origin.

21. Entry No. 334-1009194-7 was entered by Plaintiff on

January 28, 1997, as plywood with at least one outer ply of Virola

under subheading 4412.13.40, HTSUS, at the rate of 8% ad valorem.

22. Entry No. 334-1009194-7 was imported from Brazil.

23. The commercial invoice associated with Entry No.

334-1009194-7 identifies merchandise imported under that entry as

being “Faveira (Parkia spp.).”

24. Customs liquidated Entry No. 334-1009194-7, as

entered by Plaintiff on May 16, 1997.
Court No. 01-00216 Page 11

25. Plaintiff timely filed protest No. 1101-97-100373 on

July 18, 1997, claiming the entry was properly classified on entry

from Brazil and was duty free under the GSP.

26. Customs denied Protest No. 1101-97-100373 on August

4, 1997.

27. Plaintiff filed a timely summons of the denial of

Protest No. 1101-97-100373 and voluntarily dismissed that action on

November 8, 2001.

28. Plaintiff filed Protest No. 1101-97-100397 on August

13, 1997.

29. Customs denied Protest No. 1101-97-100397 on May 4,

2001.

(B) Additional Findings of Fact from Trial10

30. Plaintiff presented nine witnesses at trial: five

witnesses representing six importers; three wholesale distributors

of Virola plywood; and the representative of the Brazilian plywood

mills that developed and manufactured the subject plywood, sold it

for export to the United States and personally assisted importers

in selling the plywood to U.S. wholesale customers.

31. One of plaintiff’s witnesses, John Rego is President

of Gulfstream Traders, Ltd. which represented the largest Brazilian

mills that manufactured and sold “Virola plywood” to the United

10
The court accepts these facts except as indicated.
Court No. 01-00216 Page 12

States and accounted for approximately 70 to 75 percent of the

“Virola plywood” export market from Brazil between 1990 and 1995.

Mr. Rego helped with the development of what Plaintiff calls

“Virola plywood” as a viable export product from Brazil in the mid-

1980s. Mr. Rego was involved in the manufacturing of “Virola

plywood,” and knew the raw materials used by the mills and the

production capabilities of the mills. The plywood at issue was

produced by a small number of wood mills located in northern

Brazil, using a "mix" of different species of tropical hardwoods.

This plywood was developed by Mr. Rego, along with these plywood

mills, to have a product comparable to the “Meranti” and “Lauan”

plywood originating from Malaysia and Indonesia. Mr. Rego worked

with the mills to identify the species that could be used to make

a better plywood than was being produced in Brazil at the time. In

the late 1980s or early '90s, Mr. Rego, as a Brazilian exporter/

“middleman”, began to ship plywood to the U.S. from Brazil. All

but one of the entries at issue in this proceeding were shipped by

Mr. Rego’s company. Mr. Rego’s U.S. customers for “Virola plywood”

prior to 1996 were Russell Stadelman & Co., Ihlo Sales, Sitco

Lumber, Aljoma Lumber, Timber Products, Ike Trading and Southwest

Plyboard. Mr. Rego accompanied Mr. Heitzman in his sales meetings

with U.S. wholesale customers and informed such customers about

“Virola plywood.”
Court No. 01-00216 Page 13

32. Although Mr. Rego did not specify all of the species

which were included, among the species used to produce the new

plywood that was to be marketed in the United States were species

of the genus Virola, as well as woods of other species, including

Amesclao and Faveira. The original American importer of this

Brazilian mixed species plywood, Russell Stadelman, decided to

market the plywood as “Virola plywood.”

33. According to Mr. Rego, the Brazilian plywood mills

that manufactured the subject entries sorted plywood by the quality

rather than the species of wood on the face ply. The mill,

importer/wholesaler, and wholesaler did track the quality or grade

of the panels in each crate and sold the merchandise differently

based on that grade.

34. The panels that made up each unit, or crate, of

plywood had different species of wood on their face plies. But the

mill, importer/wholesaler, and wholesaler did not actually track

the face-ply species for each panel in a crate.

35. In order to comply with the requirements of

Brazilian and U.S. governments that bills of lading identify the

species being exported to the United States in a particular

shipment, the Brazilian plywood mills would attempt to match their

output of plywood to the predominant species used in that

production cycle as shown in their inventory records taken from the
Court No. 01-00216 Page 14

logs they had purchased. No attempt was made, nor was it possible,

to identify the species on the outer ply of each plywood panel.

36. The shipping documents used to make entry, showing

terms such as Sumauma, Faveira, Amesclao and White Virola, were not

provided to importers’ wholesale customers.

37. Because of a price advantage over tropical hardwood

plywood imported from Indonesia or the Philippines, referred to as

“Lauan” or “Meranti” plywood, the Brazilian mixed species tropical

hardwood plywood met with some success in the U.S. market. For

example, one wholesaler, Furman (now a part of Boise Cascade),

succeeded in marketing Brazilian "Virola" plywood as an

alternative to the Indonesian or Philippine “Lauan” or “Meranti”

plywood for its customers. Recognizing a business opportunity, a

number of U.S. importers added the mixed species Brazilian tropical

hardwood plywood to their product lines.

38. The subject entries were marketed for use by end

users primarily as flooring underlayment, furniture substrates and

cabinetry components.

39. The properties that made the subject entries

suitable for these end uses were their price, and their physical

properties such as knot-size, grain, low density, strength, and

sandability. No quantitative parameters were established regarding

the properties of either the end product or the face ply.
Court No. 01-00216 Page 15

40. Representatives of the importers described below,

testifying at trial, described their general practice of marketing

the Brazilian “mixed-species” plywood that they were importing as

“Virola” plywood.11

41. Michael Heitzman started selling plywood in 1983 for

Russell Stadelman & Co. where he was employed as a salesman, then

sales manager, then Vice-President of sales until that company’s

operations were taken over by Timber Products Company in mid-1995,

and he then was employed by Timber Products Company as a sales

supervisor for plywood until 2002. Russell Stadelman & Co. started

importing and selling “Virola plywood” from Brazil at wholesale

throughout the United States in 1986 and had become the largest

importer into the United States of “Virola plywood” by 1995. Mr.

Heitzman and Russell Stadelman & Co. were largely responsible for

introducing “Virola plywood” into the U.S. wholesale market in the

late 1980's and early 1990's by marketing it as a less expensive

substitute for Asian “Meranti” and “Lauan” plywood for the same end

uses. Mr. Heitzman educated U.S. wholesale customers about “Virola

plywood” by taking them to visit Brazilian plywood mills and

conducting sales meetings for them in the United States.

42. Roy Blackshear is President of Ihlo Sales & Import

Company, a family-owned business started by his late stepfather,

11
As noted below, the issue in this proceeding is whether
the commercial practice of these importers establishes a
commercial designation of such plywood, in the plywood trade,
that is general, uniform and definite.
Court No. 01-00216 Page 16

Bill Ihlo in 1973. Ihlo Sales buys and sells primarily plywood

(accounting for 99% of their sales). Mr. Blackshear started in

the business in 1982 as a salesman. Ihlo Sales started buying and

selling “Virola plywood” from Brazil, in and around 1991-92. Ihlo

sold “Virola plywood” at wholesale throughout the United States to

wholesale distributors, kitchen manufacturers, furniture

manufacturers and some retailers. By 1995, Ihlo was the second

largest importer of “Virola plywood” into the United States after

Russell Stadelman & Co., and with Russell Stadelman & Co.,

accounted for a large portion of the plywood imported from Northern

Brazil into the United States. By 1996-1997, Ihlo had become the

largest importer of the mixed tropical hardwood plywood product

from Northern Brazil, known by Mr. Blackshear as “Virola plywood”,

and sold at wholesale throughout the United States.

43. John Chaffin was Vice-President of Sales and

Operations and General Counsel of Liberty Woods International in

the years 1990-96 and responsible for the purchase and sale of

plywood from Malaysia, Indonesia and Brazil. In the years 1993 to

1996, Liberty Woods sold plywood at wholesale throughout the United

States to wholesale distributors, retail chains, flooring and

furniture companies. Liberty Woods started buying plywood from

Brazil in 1991 or 1992 due to inquiries from its customers.

Liberty Woods now imports the same plywood under the nomenclature

“Faveira plywood” due to an attempt to “re-brand” the product.
Court No. 01-00216 Page 17

Liberty Woods prepared documentation to sell its product. Mr.

Chaffin, during his tenure at Liberty Woods, relied on Woods of the

World to put together information regarding “Virola plywood.” This

book was available at Liberty Woods since the time Mr. Chaffin

joined the company. Mr. Chaffin used the book to flesh out his

description of the various species.

44. Dwight Hall is owner and President of SWS

Associates, Inc. d/b/a Southwest Plyboard of Texas and in the

business of importing and selling plywood at wholesale in the

United States for approximately 36 years. He started purchasing

what he knows as “Virola plywood” in Brazil in 1991 and visited

numerous plywood mills in Brazil in the early 1990's. SWS

Associates imports and sells plywood at wholesale in the United

States in a joint venture with Ike Trading. In the period from

1993 through January 1, 1996, Mr. Hall’s company sold “Virola

plywood” at wholesale to wholesalers and distributors primarily in

the Southwest and Midwest but also on the East Coast of the United

States.

45. The testimony of John Bennett was provided by

portions of an affidavit and deposition. Mr. Bennett is President

of American Pacific Plywood and has been importing and selling

plywood since 1986. American Pacific imported and sold “Virola

plywood” at wholesale to lumber distributors, furniture and fixture

manufacturers throughout the United States from 1991 through 1995.
Court No. 01-00216 Page 18

The court did not attribute weight to the testimony of Mr. Bennett,

due to the limited nature of the testimony and the multiple

corrections on the testimony transcripts.

46. Christina Hemingway is a product manager for Boise

Cascade which took over Furman Lumber in about 1998 where she has

been buying and selling plywood at wholesale throughout the United

States for 22 years. Furman was a wholesale distributor that sold

plywood to retail lumberyards, home center chains and manufactured

housing companies throughout the United States. She started buying

and selling “Virola plywood” in approximately 1990 and visited

Brazilian plywood mills in 1991 with Russell Stadelman & Co. She

witnessed the manufacturing process of “Virola plywood” in its

entirety at five or six mills in Brazil with John Rego and Russell

Stadelman. She purchased “Virola plywood” from Russell Stadelman

& Co., Ike Trading, Liberty Woods, Ihlo Sales and Timber Products.

47. Aaron Mansbach sold plywood at wholesale for twenty

years at Bay Ridge Lumber starting in 1983. He began purchasing

plywood around 1988. He became a general manager for Bay Ridge

Lumber in 1995. Bay Ridge Lumber was a wholesale distributor of

building products and sold commodity plywood to flooring

manufacturers, store fixture manufacturers, cabinet makers, and

countertop manufacturers in New York, New Jersey, Eastern

Pennsylvania, Connecticut, Delaware and Maryland. “Virola plywood”

was introduced to Mr. Mansbach by Michael Heitzman from Russell
Court No. 01-00216 Page 19

Stadelman & Co. Mr. Mansbach started buying “Virola plywood” from

Russell Stadelman & Co., Liberty Woods, Ike Trading, North Pacific

and Timber Products. In the early to mid-1990s, approximately 30

percent of Bay Ridge’s business was in plywood of which

approximately 25 percent was “Virola plywood.” Mr. Mansbach earned

degrees of Bachelor of Science in Forest Management from Rutgers

University in 1979 and Master of Forestry from Yale University in

1981.

48. Henry Braverman has been a sales manager at several

building products distribution companies selling plywood at

wholesale in the United States since 1979. He was with Weyerhauser

Company from 1979 until approximately 1990, then became sales

manager at one of the former Weyerhauser facilities in Freehold,

New Jersey that had been acquired by Snavely Forest Products, where

he was introduced to “Virola plywood” at a sales presentation made

by Michael Heitzman in 1990. Mr. Braverman was then a sales

manager at PlyGems Distribution in New Jersey for a year, then

joined Lawrence R. McCoy company (“McCoy”) in 1992 where he is

still employed. Starting in 1992, Mr. Braverman sold “Virola

plywood” at McCoy, which he purchased primarily from Michael

Heitzman from Russell Stadelman & Co., Timber Products and Aljoma

Lumber. Mr. Braverman sold “Virola plywood” primarily for

underlayment applications to independent retail lumberyards and
Court No. 01-00216 Page 20

some larger contractor yards primarily in New York City and Long

Island.

49. One of Defendant’s witnesses, Regis Miller, Ph.D,

was accepted by the court as an expert. Dr. Miller has a Ph.D in

botany from the University of Maryland, and has specialized in wood

identification. He worked at the Forest Products Laboratory at the

United States Department of Agriculture Forest Service for almost

40 years until 2005, and from that time has been a consultant in

wood identification and an information specialist. During that

period of time, he was asked to identify tropical woods in plywood

products and familiarized himself with the terms used by the

plywood trade to describe tropical woods. Dr. Miller testified

that the commercial and common meanings of the term “Virola” are

one and the same, and that the meaning of the term “Virola,” in the

plywood trade does not include species outside of the genus Virola.

Although the court does not rely on the testimony of Dr. Miller, he

did provide valuable context for the general understanding of the

various names of various wood species.

50. Defendant’s other witness was Paul Garretto who has

been a National Import Specialist for 30 years for wood products in

Chapters 44, 45 and 46 of the HTSUS. Mr. Garretto acquired his

knowledge of plywood and the plywood trade by visiting mills,

speaking to manufacturers, importers, sellers, traders, wholesalers

and retailers. Additionally, he gained further information through
Court No. 01-00216 Page 21

reading literature, including periodicals, and through attending

conferences and plywood product shows. Mr. Garretto testified

that the commercial and common meanings of the term “Virola” are

one and the same, and that the meaning of the term “Virola,” in the

plywood trade does not include species outside of the genus Virola.

While the court found the testimony of Mr. Garretto tangentially

probative, the court will not rely on his testimony or his

opinions.

51. The court will consider specific aspects of the

testimony and exhibits below.

FURTHER FINDINGS OF FACT AND CONCLUSIONS OF LAW

In order to show that a commercial designation differs

from a term’s common meaning, the party proffering the commercial

designation must show that the commercial use is “general

(extending over the entire country), definite (certain of

understanding), and uniform (the same everywhere in the country)”

S.G.B. Steel Scaffolding & Shoring Co. v. United States, 82 Cust.

Ct. 197, 206 (1979), (citing Moscahlades Bros., Inc. v. United

States, 42 CCPA 78, 82 (1954)), as opposed to a meaning that is

only partial, local or personal,12 Maddock v. Magone, 152 U.S. 368,

12
The amount of evidence required to establish a commercial
designation of the term has been described as either “plenary
proof,” S.G.B. Steel Scaffolding & Shoring, 82 Cust. Ct. at 205
(quoting Excelsior Imp. Assocs., Inc. v. United States, 583 F. 2d
513, 514 (1978)), or a “preponderance of the evidence,” (United
(continued...)
Court No. 01-00216 Page 22

371-72 (1894) (further elaborating that were the meaning not

general and known throughout the country, or only known in one

branch of the trade, then different rates of duty would be assigned

at different ports of entry), or “occasional and inconsistent”

Hartog Foods Int’l Inc. v. United States, 15 CIT 475, 482 (1991).

“Proof of commercial designation is a question of fact to

be established in each case.” Cent. Prods. Co. v. United States,

20 CIT 862, 864, 936 F. Supp. 1002, 1004-1005 (1996) (quoting Rohm

& Haas Co. v. United States, 727 F. 2d 1095, 1097 (Fed. Cir.

1997)). “Proof must be offered through persons engaged in buying

or selling the merchandise at wholesale in the United States, or

through persons who know, by their own experience or knowledge, the

meaning of the designation applied to the merchandise by those who

buy and sell at wholesale.” Keuffel & Esser Co. v. United States,

7 CIT 384, 388 (1984) (citing Daniel Green Shoe Co. v. United

States, 58 Cust. Ct. 7, 15, 262 F. Supp. 375, 380-81 (1967)).

1. General

It bears saying, though it appears obvious, that the

country in question is the United States. Even if it is clear in

12
(...continued)
States v. Fung Chong Co., 34 C.C.P.A. 40, 55 (1946)(Hatfield, J.
concurring). Yet, at the same time, it appears that the standard
of proof to be met is high, requiring demonstration that this
commercial meaning is “fully and completely understood and
accepted throughout the United States by all of those dealing
wholesale in that class of goods.” United States v. Wells, Fargo
& Co., 1 C.C.P.A. 158, 162 (1911).
Court No. 01-00216 Page 23

Brazil that an order for “Virola plywood” is to encompass both

plywood with a face ply of the genus Virola, and all of its

attendant species, and plywood with a face ply of such species as

Faveira and Amesclao that are species within another genus, such

proof would be insufficient to establish a commercial designation

in the United States. Two Hundred Chests of Tea, 22 U.S. (9

Wheat.) 430, 438 (“Whether a particular article were designated by

one name or another, in the country of its origin . . . was of no

importance in the view of the legislature.”). See also Hartog, 15

CIT at 482 (one trade-person’s understanding of the term “pulp” was

based on the fact that his employer purchased most of its

concentrate from Latin America where it was known as “pulpa” and

had a slightly different meaning in Spanish than in English);

Russell Stadelman & Co. v. United States, 242 F.3d 1044, 1049 (Fed.

Cir. 2001) (“in considering the commercial designation of a tariff

term, only commercial use of that term in the United States is

relevant.”). Though every single state in the country does not

have to be represented, the testimony of the witnesses as a whole

should represent a fair cross-section of that trade in the United

States, even if one witness is limited in knowledge to one specific

region. See Neuman & Schwiers Co. v. United States, 24 C.C.P.A.

127, 129 (1936) (although some witnesses were restricted in their

testimony to one specific region, a consideration of the testimony
Court No. 01-00216 Page 24

as a whole shows that practically all of the United States was

covered).

The trade testimony in the trial of this matter was

sufficient to prove that the term “Virola plywood,” used to

describe the plywood at issue, was general throughout the United

States. Michael Heitzman stated that “Virola plywood” was imported

by Russell Stadelman & Co. throughout the United States.

Transcript of Trial at 361-62 (“Tr.”). Roy Blackshear testified

that Ihlo Sales sold the “Virola plywood” at issue in this case at

wholesale throughout the United States to wholesale distributors,

kitchen cabinet manufacturers, furniture manufacturers and some

retailers. Id. at 362-63. John Chaffin testified that Liberty

Woods sold plywood at wholesale throughout the United States to

wholesale distributors, retail chains, flooring and furniture

companies. Id. at 286. John P. Bennett, through his affidavit and

deposition, testified that American Pacific imported and sold

“Virola plywood” at wholesale to lumber distributors, furniture and

fixture manufacturers throughout the United States from 1991 to

1995. Id. at 444. John Rego testified that Gulfstream Traders,

represented the largest Brazilian mills that manufactured and sold

“Virola plywood” to the United States and accounted for around 70

percent of the “Virola plywood” export market from Brazil between

1990 and 1997. Id. at 155-56, 170-71. Christina Hemingway

testified that she worked for Furman Lumber during the period prior
Court No. 01-00216 Page 25

to 1998 (at which point Boise Cascade acquired Furman Lumber),

where she was buying and selling plywood throughout the United

States. Id. at 112, 127-28. Aaron Mansbach sold plywood,

including “Virola plywood,” to flooring contractors, store fixture

manufacturers, cabinet-makers, and countertop manufacturers in New

York, New Jersey, eastern Pennsylvania, Connecticut, Delaware and

Maryland. Id. at 419-20. Starting in 1992, Henry Braverman sold

“Virola plywood” at Lawrence R. McCoy Company to independent retail

lumberyards and some larger contractor yards primarily in New York

City and Long Island. Id. at 473, 477. The totality of the

testimony of Plaintiff’s witnesses covers the United States.

Therefore, the “general” prong of the commercial designation test

is satisfied by the testimony of Plaintiff’s witnesses insofar as

we are able to infer to what “Virola plywood” refers, which brings

us to the next prong of the analysis.

2. Uniform

The “uniform” prong (i.e. that the commercial designation

be described as the same everywhere throughout the country) of the

commercial designation test requires consistent testimony.

Commercial designation is not established when there is a conflict

in the testimony of the witnesses called to establish the

commercial designation. Cent. Prods., 20 CIT at 868, 936 F. Supp.

at 1008 (“A commercial designation is not established where there
Court No. 01-00216 Page 26

is a conflict in the testimony of trade witnesses as to the

commercial meaning of the term.”) (quoting Rohm & Haas Co. v.

United States, 5 CIT 218, 227, 568 F. Supp. 751, 758 (1983)); S. G.

B. Steel Scaffolding & Shoring, 82 Cust. Ct. at 209.

The proof of commercial designation is not limited,

however, to the testimony of witnesses. Courts have also looked to

a corroboration or refutation of the testimony through

publications. These publications have taken the form of, amongst

others, newspaper market reports, price lists, and catalogues, and

provide evidence of the commercial designation used in the

marketing of the products. See Great W. Mercantile Co. v. United

States, 25 Cust. Ct. 126, 134-35 (1950); See also Int’l Customs

Serv., Inc. v. United States, 62 Cust. Ct. 653, 658 (1969) (“Trade

catalogues have been held to be competent evidence, but they are

not conclusive proof of what merchandise is for tariff purposes.”);

Davies, Turner & Co v. United States, 70 Cust. Ct. 174, 186 (1973)

(“it is quite true that the manner in which an article is

merchandised has probative value in determining the nature of that

article.”). The caveat placed on the use of such publications is

that they must be “confined to a period at or prior to the date” of

the passage of the tariff law. Great W. Mercantile Co., 25 Cust.

Ct. at 135.

The testimony of the Plaintiff’s witnesses from the

plywood trade appears not to present a consistent definition of
Court No. 01-00216 Page 27

“Virola plywood.”13 While the court will not insist that the trade

13
The court notes that it is not entirely clear what
definition of “Virola plywood” Plaintiff wishes the court to
adopt. The first time that this court considered this case,
Plaintiff contended that in the plywood trade there are
approximately thirty-five species of trees which are commercially
known as “Virola.” This assertion was repeated before the CAFC.
Timber II, 417 F. 3d at 1200 (“According to Timber, the term
‘Virola’ is a commercial designation in the plywood trade for a
group of approximately thirty-five ‘near species’ of tropical
hardwood with similar physical properties, including density and
hardness.”). However, during trial, it was unclear as to whether
Plaintiff was trying to prove that the term “Virola plywood” has
a commercial meaning which encompasses thirty-five near species
as previously asserted, or whether Plaintiff was seeking to prove
an even broader, previously unasserted, meaning that “Virola
plywood” refers to hardwood plywood made from mixed tropical
species from Brazil. See Supplemental Br. Pl.’s Supp. Mot. Summ.
J. 4-5 (“the term Virola represented a group of near species with
similar physical properties of density and hardness used for
plywood underlayment and cabinetry substrate.”); Id. at 13
(“[t]he [view] that ‘Virola’ denotes any commodity hardwood
plywood from Brazil with similar physical properties and end uses
(not limited by just ‘substrate flooring’) that is similar to
Luan [sic] and Meranti is correct.”); Pl.’s Pre-trial Summ. Mem.
6-7.

if plaintiff shows by a preponderance of the evidence
that Virola in the wholesale plywood trade throughout
the United States at the time of enactment was a group
of mixed species of tropical wood with common physical
properties of density and hardness suitable for use as
flooring underlayment and substrates, and that that
group includes plywood identified on shipping documents
as “Sumauma,” “Faveira,” “Amesclao” and “White Virola,”
then plaintiff will have sustained its evidentiary
burden and the Court should find for plaintiff.

Pl.’s Pre-trial Summ. Mem. 6-7; Pl.’s Proposed Findings Fact &
Conclusions Law 11 (“The commercial meaning of Virola in the
wholesale plywood trade given by all of these witnesses as a
‘mixture’ of different species with similar properties that make
it suitable for the same end uses included plywood identified on
entries before the Court as “Sumauma,” “Faveira,” “Amesclao,” and
“White Virola.”);
The court will not, and cannot, insist that all witnesses
(continued...)
Court No. 01-00216 Page 28

witnesses repeat their understanding of the commercial meaning of

“Virola plywood” exactly or verbatim, uniformity was not

established by Plaintiff’s testimony. This is further compounded

by the fact that any marketing material or trade catalogue or

publication in evidence before the court appears to refer to

“Virola” as the botanical genus Virola spp., and not as a mixed

species.

Michael Heitzman described “Virola plywood” as a mixture

of approximately thirty-five different species that had similar

characteristics and properties and that were suitable for the same

end uses. Tr. at 10. John Rego described “Virola plywood” as:

the commercial term for commodity hardwood
plywood with an outer face ply of Virola, that
is, to say, one of the species of the group of
approximately 35 species including botanical

13
(...continued)
testify in the same exact way using precisely the same words as
each other. Cf. Stephen Rug Mills v. United States, 32 C.C.P.A.
110, 114-115 (1944) (“It could hardly be expected that men of
commerce could be so well-versed in the phraseology of the
statute as the Government insists.”). However, Plaintiff’s
testimony and evidence must demonstrate the nature of the
commercial designation at issue. In offering up two definitions,
Plaintiff puts itself between the proverbial rock and hard place.
If the meaning proffered is of thirty-five species, witnesses who
claim that 5 or 6 species (or an unspecified number of species)
are included within the commercial meaning of the term “Virola
plywood” would be contradicting the definition of thirty-five
species. However, if the definition being proffered is “hardwood
plywood made from mixed species from Brazil,” then that
definition differs from the original definition presented to the
court, and also provides a further limitation (“from Brazil”)
that was not previously represented to the court. If Plaintiff
suggests that both definitions are acceptable, then that may
further weaken its case, as then the definition may not be
“definite.”
Court No. 01-00216 Page 29

Virola that were segregated by properties and
physical characteristics like density, grain,
hardness, sandability, so that would render it
good for substrate and for flooring underlay.

Id. at 157-58.

Ms. Hemingway described “Virola” as “the tropical

hardwood plywood that we brought from Brazil that you could use.

It was clear-faced, sandable, that you could use under floor as

sublayment or backs of cabinets, and it was a generic name of a

panel that served a purpose that could be used for certain

applications.” Id. at 149. Mr. Mansbach understood “Virola” to

be a mixed hardwood plywood from South America, Id. at 422, 432,

and did not specify that he understood that the mixed hardwood

species used to manufacture the plywood had to be from Brazil.

Mr. Blackshear specified that the plywood came from “Northern

Brazil[ian] species.” Id. at 357. Mr. Chaffin, when describing

how in 2000 Liberty Woods started to market their plywood as

“Faveira,” instead of “Virola,” stated “[w]e wanted to establish a

different trade name for the plywood from South America,” id. at

320, indicating that he did not limit “Virola” as coming solely

from Brazil.

There is a disparity between the various definitions provided,

because one emphasizes that the plywood represents a mixture of

tropical hardwood species from Brazil, while the other emphasizes

that there are approximately thirty-five different species,
Court No. 01-00216 Page 30

including botanical Virola. Mr. Rego, in his testimony, also

appeared to refer to “Virola plywood” as coming from places other

than Brazil:

Q: Make sure each one has an invoice from your
company.
A: One invoice here comes from British Guyana.
Q: So that is not your company?
A: That is not even in Brazil, and one invoice
here is not drawn by Gulfstream, but is drawn
by one of our mills that we represent, so it
came, it was from us. Just that it was
directly invoiced in that particular case
according to my instruction.

Id. at 169.

Marketing and other materials

Mr. Blackshear testified that he visited Dixie Plywood

Stores, and that he saw “Virola plywood” offered for sale at Dixie

Plywood. Id. at 386-87. Mr. Blackshear saw the description

provided by Dixie to all their customers, dated 8/07/00. Id. at

384. Though this information post-dates the dates of the entries

at issue, Mr. Blackshear agreed with the definition provided as one

that described “Virola plywood.” That description stated:

Virola, again the name indicates a category of
wood from the mills in South America,
primarily Brazil, containing Sumauma, Faveira,
Fuma, Sande, Banak, Mange, Baboen, Brio, or
other species. Wood importers and
distributors have combined many of these
species to make it easier on the sales end of
the business. Keep in mind that there are as
many as 400 species per acre in the producing
regions. Generally South American mills are
older and less efficient than their Asian
counterparts.
Court No. 01-00216 Page 31

Id. at 385.

This material contradicts Plaintiff’s assertion that

“Virola plywood” is commercially known to be “mixed hardwood

plywood from Brazil.” Mr. Blackshear himself then further

disagreed with this definition, which was being circulated in a

commercial setting, saying that he did not know “Sande” to be

included within “Virola plywood” as he understood it. Id. at 404.

The Agenda from a Russell Stadelman meeting, which “was

used to sell plywood,” Id. at 70, and was a document supplied to

Russell Stadelman & Co.’s customers, Id. at 66, provides a

description of “Virola” which also indicates that the species of

wood can be found throughout Latin America. Def.’s Ex. M-1,

Russell Stadelman & Co. “Agenda” 18. (“Varying with species from

Belize and Guatemala southward to Venezuela, the Guianas, the

Amazon region of northern Brazil, southern Brazil, and on the

Pacific Coast, to Peru and Bolivia; common in swamp and marsh

forests.”). This description is found in a “glossary of species”

which is prefaced “The following glossary of Southeast Asian

Hardwoods is a listing of those items most commonly used and

marketing [sic] in the U.S. trading area.” Id. at 9. Though

Plaintiff could, but did not, make the argument that this refers

merely to the species and not to plywood, this agenda was produced

with respect to marketing plywood. Additionally, and more

tellingly, other than Virola spp., no species from Brazil or Latin
Court No. 01-00216 Page 32

America was mentioned anywhere in the document, while the document

does mention a variety of species from Asia, including “Red Lauan

Group,” id. at 14, “Light Red Lauan Group” id. at 15, “White

Meranti Group” id. at 16, while all the pages were headed with the

term “Shorea”, the genus of the Lauan and Meranti “groups”. This

agenda from Russell Stadelman & Co. also lists a bibliography of

resources on Tropical Timbers. One of the books included in this

bibliography is “Tropical Timbers of the World” by Martin Chudnoff.

This book provides a description of Virola spp., that lists various

common names of Virola, and describes “Virola” as being part of the

Myristicaceae family, with the popular names of Banak and Baboen.

Def.’s Ex. RR, Chudnoff, 167 (“Chudnoff”). A further description

is provided on a separate page for the common name “Virola”

referring to the Dialyanthera spp. from the Myristicaceae family,

with a popular name of Cuangare. Id. at 70. Neither reference to

“Virola” refers to a broader mix of species, though both refer to

the use of “Virola” in plywood, either as plywood, veneer or

corestock. Id. at 70, 167.14 Additionally, a list of Trade Names

and Scientific Names is provided at the end of the book, which

lists “Virola” as a trade name for Dialyanthera spp. Id. at 464.

Despite the fact that the marketing material did not

explain that the term “Virola” when used in connection with plywood

14
Additionally, though this reference book notes the use of
Sumauma in plywood, Chudnoff, at 49, 200 (referring to Ceiba
pentandra); it does not refer to the use of Faveira in plywood,
id. at 166.
Court No. 01-00216 Page 33

or by the plywood trade presumably referred to a mixture of species

beyond that of woods known botanically as Virola, Mr. Heitzman

testified that during sales meetings, customers were told orally

that it was a mixture of various tropical hardwood species from

Brazil, notwithstanding any written materials placed before them.

Tr. at 11, 66, 73. Mr. Heitzman testified that when Russell

Stadelman would market “Virola plywood” to customers, Mr. Rego

would explain the composition of “Virola plywood” and that it

contained botanical Virola, Sumauma, Faveira, Mangue, Breu and

Amesclao, id. at 11, 105, though Mr. Heitzman would tell them it

was a mixture of species, id. at 66, 105. Mr. Rego, on the

contrary, did not seem to agree that he would explain the

composition of the plywood to the customers:

[t]he marketing of the plywood was not really
done by Gulfstream. The marketing of the
plywood was 100 percent done here by the
importers and their customers. They are the
ones in the marketplace. They are the ones to
promote one species or one group of species
versus another group of species say from Asia,
so even so I made several visits, and I must
say I was not the one responsible for the
marketing policy of each of these companies
that imported here. So there were
presentation [sic]. The way they made is
their sole responsibilities. I was the
middleman, and I was not the one who really
laid the policy of marketing for each company.

Id. at 204-205. Plaintiff seeks to nullify the value of

the marketing materials through testimony that the marketing

materials were supplemented by oral presentations that clarified
Court No. 01-00216 Page 34

and explained that “Virola plywood” consists of a mixture of

species of tropical hardwood from Brazil. However, such testimony

itself is not fully convincing as Plaintiff’s witnesses could not

agree as to who provided such supplemental information.

3. Definite

(a) Lack of certainty

The definite prong requires that the commercial

designation be certain of understanding. S.G.B. Steel Scaffolding

& Shoring, 82 Cust. Ct. at 206. The inconsistency in Plaintiff’s

testimony also affects the definiteness of Plaintiff’s proffered

definition. Mr. Rego testified as to the species included within

the term “Virola” as “mainly Sumauma, Faveira, Amesclao, Breu,

Mangue, Curipixa, Muiratinga, and botanical Virola.” Tr. at 158.

Mr. Rego stated, however, that the composition of the groups of

woods comprising “Virola plywood” changed over time to exclude

Muiratinga. Id. at 165. He also testified that for marketing

reasons, he was requested to use the term “Virola” instead of the

various species of Sumauma, Faveira, Amesclao, on invoices because

“it was difficult to promote a product that was represented with

too many names and also for inventory control it was too

complicated.” Id. at 197-98.

Mr. Rego testified that he did not consistently invoice

the merchandise in question from the time he started marketing it
Court No. 01-00216 Page 35

as “Virola plywood,” stating that he was occasionally requested to

invoice the merchandise as Sumauma, Faveira or Amesclao because he

was told that U.S. “customers don’t like the name Virola Baboen due

to its bad reputation quality-wise.” Id. at 199-201. Def.’s Ex.

J-7 at 2. The fact that the same product within a very short time

span preceding the passage of the HTSUS 1997 was referred to by

various different names, and that the different names represented

varying species of woods, detracts from Plaintiff’s attempt to

demonstrate that “Virola” has a definite meaning across the plywood

trade. See Berbecker v. Robertson, 152 U.S. 373, 376-377 (1894)

(wherein plaintiff testified that the articles were known in the

trade and commerce as “gilt nails” but then admitted on cross

examination that “they were sometimes so bought and sold as French,

chair and furniture nails” contributing to the court’s conclusion

that the evidence of a “definite, general and uniform usage” was

too slight to be convincing).

Because the test requires that the commercial designation

be general, uniform and definite prior to the enactment of the

tariff schedule, the shifting commercial practice in the years

immediately preceding the tariff enactment makes it difficult to

find that the usage of the term was definite enough and established

enough that the drafters of the tariff code intended the commercial

meaning of “Virola” advanced by the Plaintiff.15

15
Defendant also notes that one company, Liberty Woods
(continued...)
Court No. 01-00216 Page 36

This difficulty with the Plaintiff’s proof of

definiteness was further demonstrated by the fact that, aside from

botanical Virola, witnesses could only agree on a few of the

species that are included in the purported commercial designation

of “Virola.” Almost all of Plaintiff’s witnesses testified that

Faveira, Sumauma, and Amesclao are included within “Virola

plywood.” On the other hand, Mr. Blackshear did not testify that

Amesclao is included within the definition, Tr. at 357, and Mr.

Mansbach limited his definition of “Virola plywood” to a “mixture

of species,” id. at 422.

In the uncontested facts submitted to the court by

Plaintiff and Defendant, the parties agreed that the common meaning

(and botanical meaning) of the term “Virola” includes approximately

forty-five to sixty species, all of the genus Virola. At the same

time, Timber, and several witnesses (Misters Heitzman, Rego and

Hall) submit that the commercial term “Virola” includes thirty-five

different species, including botanical Virola, and near-species.

It is hard to call the commercial designation definite, when a

definition of thirty-five near-species could include only Virola

15
(...continued)
International, started referring to Brazilian mixed species
plywood as Faveira in 1999 in an attempt to establish a different
trade name. Tr. at 342-344. Though the change in Liberty Woods’
marketing practice, referring to the mixed hardwood plywood it
sourced from Brazil as Faveira instead of Virola, could be yet
further evidence of the indefinite and constantly changing nature
of the term “Virola plywood,” the court did not consider this
evidence in its examination of the proof of commercial
designation, as this change occurred after 1996.
Court No. 01-00216 Page 37

species, or a mixture of species in addition to species of the

genus Virola. This is further compounded by the fact that

witnesses identified very different numbers for the constituent

species from “five or six,” to twenty to thirty, to thirty-five.

Id. at 357, 438, 448. As Defendant points out “if the term

‘Virola’ actually is commercially defined to include the 38-45

species of the genus Virola” and also includes thirty-five near

species, such as, “Sumauma,” “Amesclao” and “Faveira,” then the so-

called commercial designation would actually encompass a far

greater number of different species than the thirty-five claimed by

Timber here.16 Def.’s Pre-trial Mem. Law 18. The inability to

name with some precision how many species are within the proffered

definition of Virola does not in and of itself, render the

proffered commercial designation impossible, but it does

demonstrate a weakness in the Plaintiff’s definition.

Plaintiff endeavors to resolve this conundrum by pointing

to the United States Court of Customs Appeals decision in United

States v. Georgia Pulp & Paper Mfg. Co., 3 C.C.P.A. 410 (1912),

stating that “[i]n order to satisfy the ‘definiteness’ prong of the

commercial designation test, it was not necessary for the witnesses

16
Defendant notes that some definitions of “Virola” include
up to sixty different species of the botanical genus Virola,
Def.’s Pre-trial Mem. Law 11, while “Sumauma” “Faveira” and
“Amesclao” together encompass fifty-four different species, id.
at 18. While the court will not decide whether or not the
Plaintiff’s definition of Virola includes 114 different species,
this analysis makes clear that the number could easily reach
seventy.
Court No. 01-00216 Page 38

to agree on the entire universe of individual components (e.g.,

botanical species) of that commercial designation.” Pl.’s Proposed

Findings Fact & Conclusions Law 31. Plaintiff believes that

Georgia Pulp & Paper supports this proposition because witnesses

there “were at no disagreement that a machine tool was in the trade

understood to be one that worked metal in some manner and was

limited thereto.” Georgia Pulp & Paper Mfg., 3 C.C.P.A. at 413.

The question at issue in Georgia Pulp & Paper, however,

was whether or not “machine tools” included machines to work wood

in addition to ones that worked metal, i.e., the question at issue

was not which machines worked metal, but rather whether or not

woodworking machines would fit into the tariff classification. The

court was not facing the question of which metal-working machines

were commercially known as machine tools – the court specifically

noted that it was only concerned with whether or not the

merchandise concerned (wood-working machines) was included or

excluded from the commercial meaning of the term “machine tools.”

Id. at 415-16. The court found that the term “machine tools” was

definite insofar as “it was applied to machines that worked metal,”

and while that was a broad term, it was not an ambiguous term

because the term “‘metal-working machines’ possesses absolute

certainty of meaning.” Id. at 415. This does not apply to the

case at hand. Though the Plaintiff argues that all witnesses

“clearly agreed with the commercial designation of Virola plywood
Court No. 01-00216 Page 39

as a mixture of species, stating ‘[w]ood importers and distributors

have combined many of these species to make it easier on the sales

end of the business,’” Pl’s Proposed Findings Fact & Conclusions

Law 31 n.1, the Plaintiff does not address the fact that not all

witnesses agree that the plywood comes only from Brazil, or that it

includes near species, or as to whether or not it includes

“approximately” thirty-five near species. The remaining definition

of “plywood as a mixture of species” presumably from South America,

is too vague to render the definition definite.

The Plaintiff also relies upon Two Hundred Chests of Tea,

22 US (9 Wheat.) at 439-440, for the notion that calling something

a compound satisfies the “definite” prong. The Plaintiff relies

upon the fact that the Supreme Court found that the tea in question

met the commercial designation of “bohea tea” which the Court found

to mean “a compound made up in China of various kinds of the lowest

priced black teas.” Id. at 439. The Plaintiff is right that

“bohea tea” described a mixture of black teas but was nonetheless

found to be definite. However, though the precise elements making

up “bohea” tea were not known, the context in which the definite

prong was met is relevant. In Two Hundred Chests of Tea, a blend

of low value Chinese black teas was sufficient as a definition,

when it was to be distinguished only from the competing terms

“souchong and other black tea.” Additionally, the court found that

“bohea tea” was a specific product and that other black teas lost
Court No. 01-00216 Page 40

their specific names (and presumably character) when they were

mixed up for sale. Id. at 439. Unlike the case cited by the

Plaintiff, here the court is being asked to find that the term

“Virola” is sufficient to cover any one of five to 114 species,

with specific names, that are tropical hardwoods that could be

found in Brazil (or in South America), when there are alternate

tariff categories within which to place some remaining hardwoods

that are not botanical Virola.

Plaintiff also seeks to minimize the importance of any

inconsistency in the testimony of its witnesses by arguing that the

botanical species that make up the plywood are commercially

irrelevant. Plaintiff relies on Mr. Heitzman’s testimony to this

effect. Tr. at 26. The court need not resolve this issue, however,

because of other difficulties with Plaintiff’s testimony to which

the court now turns.

Contrary to the Plaintiff’s claimed commercial

designation, witnesses Braverman and Mansbach testified that the

face ply has to be “of the species Virola”. In Mr. Braverman’s

case, this indicates the exact problem Plaintiff has with meeting

the definiteness prong:

Q. Do you see under the trade name column an
entry for Virola?
A. Yes, I do.
Q. Is that a trade name that you have used?
A. Yes.
Q. Is that also identified under scientific name
Virola SPP?
Court No. 01-00216 Page 41

A. In column 2 that is what it says. I will give
you a yes to that answer.
Q. Now, when you order Virola plywood from
whoever you order from, from importers, you
are referring to the species that appears on
the face ply?
A. Yes.
Q. When your customers order Virola plywood from
you, they refer to it as Virola, isn’t that
correct?
A. That’s correct.

Id. at 497-98. Though the term “species” was clear in

the question, and Mr. Braverman’s testimony was a response to

cross-examination, it indicates the problem in knowing whether

“Virola” means the species of the genus Virola or the larger

meaning proffered by the Plaintiff. Mr. Braverman might have

understood that by conceding that “Virola” was the species on the

face ply he meant that only species of the genus Virola was on the

face ply while the core-stock was comprised of a mixture of wood.

Mr Braverman could have also understood that “Virola” meant one of

the Plaintiff’s proffered definitions, i.e. one of a mixture of

species, and any one of the multitude of species could be on the

face ply, and it would still be “Virola” on the face ply. Thus,

the testimony of Mr. Braverman illustrates the difficulty Plaintiff

has in establishing the “definite” prong for proof of commercial

designation.

This problem was further demonstrated by Mr. Mansbach’s

testimony. Mr. Mansbach testified that he had studied forestry.

Id. at 417. That indicates to the court that he would understand
Court No. 01-00216 Page 42

the difference between a species, a genus, and a mixture of species

that were not within a genus. Mr. Mansbach also testified that

“Virola plywood” was used in the trade to refer to the botanical

species on the face ply:

Q: No one ever informed you what was
included in the mixture of species of the
Virola you were buying, is that correct?
A: Correct.
Q: As you said, when your customers would
send a purchase order or telephone order to
you, they requested Virola?
A: They would request either Virola or Lauan
or Meranti. A lot of times people just asked
for Lauan, just the first thing that was sold.
Q: If a customer asked for Virola, you would
sell them Virola?
A: Yes.
Q: If a customer asked for Lauan, you would
sell them Lauan?
A: We would probably sell them whatever was
cheapest.
Q: Now you agree that plywood is identified
by the type of wood on its face ply?
A: Yes.
Q: When you sold Virola, you sold plywood
which had a face ply of a species of that
wood, correct?
A: Yes.
Q: When your customer ordered Virola, they
referred to the species on the face ply.
That’s correct?
A: Correct.

Id. at 429-30. The testimony clearly states that Mr.

Mansbach believed “Virola plywood” to have a face ply of Virola, as

a species of wood, and that his customers ordered plywood on that

basis, contrary to any commercial designation proffered by

Plaintiff.
Court No. 01-00216 Page 43

Additionally, the above interchange demonstrates that

what the Plaintiff refers to as “Virola plywood” was also referred

to as “Lauan.” The interchangeability of “Virola” and “Lauan”, as

per Mr. Mansbach’s usage, also challenges the “definite” nature of

the term “Virola plywood.” This was also echoed by Ms. Hemingway

in her testimony: “Lauan was the first name for imported tropical

hardwood plywood in the United States ... originally it came from

the Philippines . . . [the] Lauan name stuck, and so, when someone

asked for Lauan, they were looking for a tropical hardwood

plywood.” Id. at 150-51. If something is known in the trade by

more than one name, as is the case here, it is harder to view the

“definite” prong of commercial designation as having been met. See

Berbecker, 152 U.S. at 377.

(b) Personal

The definite prong also requires that the use not be

personal. Maddock v. Magone, 152 U.S. at 371-72. The usage of the

term “Virola plywood” in this instance borders more on a personal

use, as a term selected by Russell Stadelman as optimal for

marketing purposes, and then marketed by Russell Stadelman and his

agents as such. This is demonstrated by the testimony of Mr. Rego,

who indicated that Russell Stadelman instructed him to use the term

“Virola,” and by the testimony of the various witnesses explaining

how they first came to learn about the product, the name and the
Court No. 01-00216 Page 44

meaning of the name “Virola plywood.” Tr. at 197- 201; Def’s Ex.

J-7. Ms. Hemingway testified that she received the name and the

information about “Virola plywood” from Russell Stadelman. Tr. at

117. Mr. Mansbach testified that he learned about the name after

he inquired from his supplier, Russell Stadelman & Co., what the

plywood consisted of:

[w]hen we first got the plywood, the Virola
from South America, it was pretty consistent,
and then it started to change a little bit,
different color, lightly different
characteristics, but for the most part it was
the same, so the question came up as to what
was going on.

Id. at 431-32. Mr. Braverman testified that he learned

about “Virola plywood” through Mr. Heitzman. Id. at 472, 504. Mr.

Blackshear testified that he “generally” heard the term used, but

it was primarily from contact in Brazil with Mr. Rego, from his

trips to Brazil, and because his customers would tell him about a

product that Russell Stadelman was offering. Id. at 353-63, 389-

90. Mr. Hall testified that he learned the name from Eidai, a

mill in Brazil., id. at 279-80, that was one of the mills that

supplied to Russell Stadelman & Co., id. at 17, and was represented

by Gulfstream Traders, id. at 46, the place of employ of John Rego,

id. at 155. Therefore, it appears that the majority of witnesses

learned about the proffered commercial designation from the

Plaintiff’s agent (or the Plaintiff’s predecessor). This appears

to be a usage that was understood by Plaintiff’s customers, but the
Court No. 01-00216 Page 45

evidence presented to the court did not establish that the usage

extended beyond that circle. See Berbecker, 152 US at 376-77

(evidence of commercial designation not found when plaintiff’s

testimony of plaintiff of personal knowledge regarding the trade

was found limited “to his own practice.”).

At least one company that was outside the main circle of

companies that Mr. Rego and Russell Stadelman & Co. (and later

Timber Products) traded with on a regular basis used a different

appellation for the plywood product at issue in this case. Mr.

Heitzman, as an agent of Timber Products, and other witnesses

testified that they knew that Georgia-Pacific, one of the largest

domestic wholesalers of plywood (including “Virola”) during the

relevant time period, did not acquiesce to attempts to refer to

Brazilian hardwood plywood of mixed species as “Virola plywood” and

did not refer to such plywood by the name “Virola.” Tr. at 76-80,

103-04, 275-76.

(c) Marketing and other materials

Plaintiff’s exhibit 2 is a document titled “Tropical

Timber Species Imported into the United States (10/93)” and lists

both the “Trade Name” and the “Scientific Name” of various imported

species. Pl.’s Ex. 2, Don. R. Thompson, Animal and Plant Health

Inspection Service, Tropical Timber Species Imported into the

United States. Exhibit 2 was introduced to demonstrate that
Court No. 01-00216 Page 46

importers of tropical species into the United States were required

to place either a “common” name and/or scientific name onto the

bills of lading; this argument was cited in turn in order to

explain why Plaintiff had entries that were identified as Sumauma,

Faveira or Amesclao. The accompanying memo, attached as part of

the exhibit, explains that parties must make a “‘BEST EFFORT’

attempt to identify [woods]. This is particularly appropriate for

items such as multi-core plywood where the face ply is readily

identifiable but where the inner plies may be one, or more, of a

variety of species.” Id. at 5. This memo provides a further

example of a Common Trade Name (Meranti)17 and then the Scientific/

Botanical Name (“Shorea spp. (S. curtisii Dyer, S. pauciflora King,

S. aciminata Dyer, S. hypochra Hance, S. faguetiana Heim, S.

resinagra Foxw.)”). This list includes “Amesclao”, “Faveira”,

“Sumauma” and “Virola” as trade names belonging to different

species. Id. at 6, 10, 17, 18. More importantly, “Amesclao”,

“Faveira” and “Sumauma” are listed separately from “Virola,” and

17
As noted above, Plaintiff and Plaintiff’s witnesses often
compared the mixed nature of “Virola plywood” to “Lauan” and
“Meranti” which are made of mixed species. In both the document
provided in Plaintiff’s ex. 2 and in the explanatory notes to
Chapter 44 of the HTSUS, both “Lauan” and “Meranti” are
identified as being comprised of a variety of different species
(though all of the same genus). Pl.’s Ex. 2 at 11, 13, Annex to
Explanatory Notes for Chapter 44. Therefore, it would appear
that Plaintiff’s proffered commercial designation of “Virola”
differs from the comparable definition of “Lauan” and “Meranti,”
which have separate species listed in both the IHPA document and
in the annex to the explanatory notes, and are still each
compounds of species within the same genus.
Court No. 01-00216 Page 47

“Virola” is listed as consisting of “Virola, spp.,” and does not

include “Amesclao”, “Faveira” or “Sumauma”. Id.

In addition, Mr. Chaffin, from Liberty Woods testified

that the material describing “Virola” on the Liberty Woods website

was provided by him. Tr. at 323. Even though the website he is

referring to is dated to 2003, he testified that he used a

definition for “Virola” contained in a “World Woods” book that had

been in his office from around the time when he joined Liberty

Woods in 1990. Id. at 322-23. This book, published in 1986,

provides a definition of Virola, Light, that specifies that Virola

refers to Virola spp., “including V. koschnyi, Warb., V. sebifera,

Aubl., V. surinamensis, Warb., V. melinonii, (R. Ben). A.C.Smith

Family: Myristicaceae.” William A. Lincoln, World Woods in Color,

274 (1986). This description further provides that the related

species include “V. bicuhyba, Warb., heavy virola.” Id. The book

also indicates that the uses of Virola include “[p]lywood

manufacture and corestock, and sliced into veneers for decorative

work.” Id. The book clearly contemplates “Virola” as used in

plywood, yet does not indicate that “Virola plywood” would include

a broader family of species than indicated otherwise. Id. World

Woods also provides an Index of Standard names, which includes

“Virola, Light” id. at 308, and an Index of Vernacular, Trade and

Other Names, id. at 309, that indicates that “Virola” is not known

by a usage outside of its common name, which in turn, does not
Court No. 01-00216 Page 48

encompass species outside of Virola spp. Mr. Chaffin also stated

that Liberty Woods would not advertise for lumber, Tr. at 309,

thereby negating Plaintiff’s argument that companies were referring

to “Virola” differently for plywood and for lumber.

Additionally, Plaintiff’s attempt to establish

definiteness is undermined by Defendant’s Exhibit Q., Purchase

Specifications for Imported Thick Plywood [Thickness 6mm (0.236")

and up]. This document was produced by the International Hardwood

Products Association (“IHPA”)(now known as the International Wood

Products Association). The Plaintiff in this case, and many of the

witnesses, are or were members of this association. Exhibit Q

provided a table of categories of commonly used decorative species

for plywood. Def.’s Ex. Q, IHPA, Purchase Specifications for

Imported Thick Plywood [Thickness 6mm (0.236") and up] 4. Category

D of this table provides for Fuma, Sumauma, and “Mixed Amazonian

Hardwoods (commonly referred to as White Virola).” The separation

of “Sumauma” and “Fuma” from “Virola” indicates the lack of

definitiveness in the proffered definition of “Virola,” because

Plaintiff includes “Sumauma” in the definition of “Virola.” It is

also appropriate to infer that because “Sumauma” is listed

separately from “Virola,” the commercial meaning of “Virola” is not

contemplated to include Sumauma.

The court finds that, although Plaintiff has demonstrated

that there was a core group of people, mostly associates and
Court No. 01-00216 Page 49

clients of Russell Stadelman & Co. and Timber, that understood

“Virola plywood” as marketed by Russell Stadelman & Co. and Timber

to refer to a mix of hardwood species from either Brazil or South

America, Plaintiff has not proven that this term had a definite

meaning extending throughout the plywood trade. The indefinite

nature of this term is established by the testimony of Plaintiff’s

witnesses, and by the variety of documentary materials, that by and

large contradict the Plaintiff’s definition. Therefore, Plaintiff

has failed to meet its burden to demonstrate that “Virola plywood”

has a commercial designation that was different from the common

meaning of “Virola” and the meaning of “Virola” used throughout the

rest of the tariff schedule. The court therefore finds that

Customs correctly entered these goods under 4412.14.30, HTSUS, as

plywood consisting solely of sheets of wood, each ply not exceeding

6mm in thickness with at least one outer ply of “other” non-

coniferous wood, at a rate of duty of 8% ad valorem. Judgment will

be entered accordingly.

JURISDICTION OVER ENTRY NO. 334-1009194-7

Timber also asserts that the court has jurisdiction over Entry

No. 334-1009194-7. Defendant has challenged this assertion,

claiming that the entry has not been reliquidated and that Timber

failed to demonstrate that this entry was actually reliquidated,

which is a necessary prerequisite for jurisdiction over this entry.
Court No. 01-00216 Page 50

See Lowa, Ltd. v. United States, 5 CIT 81, 83, 561 F. Supp. 441,

443 (1983) (where defendant challenges the court's jurisdiction,

the plaintiff has the burden of demonstrating that jurisdiction

exists).

Evidence of the reliquidation is in the form of a hand-written

notation on the protest form, but Plaintiff does not point to a

bulletin notice or any other evidence of reliquidation. Plaintiff,

citing SSK Indus. Inc. v. United States, 24 CIT 319, 322 n.7, 101

F. Supp. 2d 825, 828 n.7 (2000) (“government officials are entitled

to the benefit of a presumption that their duties are performed in

the manner required by law . . . [i]n the absence of an affidavit

or other evidence from plaintiff, the presumption that notice was

posted is sufficient to negate the existence of a genuine issue of

material fact.” (quoting Star Sales & Distrib. Corp. v. United

States, 10 CIT 709, 710, 663 F. Supp. 1127, 1129 (1986)), argues on

the basis of the hand-written note, that there was a reliquidation.

However, SSK Indus. presumed the government had given notice in a

situation in which SSK was arguing that notice of reliquidation was

not provided to it, resulting in its failure to protest the

reliquidation. SSK Indus. is therefore distinguishable from the

case before the court. If anything, the presumption of correct

government behavior would lead this court to believe that had the

government reliquidated Entry No. 334-1009194-7, it would have

posted bulletin notice of such reliquidation. See 19 C.F.R.
Court No. 01-00216 Page 51

§ 173.3(b)(1997) (providing that notice of voluntary reliquidation

“shall be given in accordance with the requirements for giving

notice of the original liquidation”); 19 C.F.R.

§ 159.9(a)(1997)(“Notice of liquidation of formal entries shall be

made on a bulletin notice of liquidation, Customs Form 4333.”); 19

C.F.R. § 159.9(b)(1997) (“The bulletin notice of liquidation shall

be posted for the information of importers in a conspicuous place

in the customhouse at the port of entry . . . or shall be lodged

at some other suitable place in the customhouse . . .”). Given

that Timber alleges that there was a lack of bulletin notice, it

appears to the court that the presumption would be that there was

no reliquidation to trigger such notice.

However, the court does not need to reach this jurisdictional

issue, because even if it were to conclude that it does have

jurisdiction over the entry, the effect would be the same, as the

court has found that Customs correctly classified the entries at

issue in this case.

Dated: November 8, 2006
New York, New York

/s/ Donald C. Pogue
Donald C. Pogue
Judge
 ERRATUM

Timber Products Co. v. United States, Slip Op. 06-162,
November 8, 2006, Court No. 01-00216:

Page 1: In Defendant’s counsel, replace the information for
Mikki Graves Walser with Barbara S. Williams, Attorney-in-Charge,
International Trade Field Office, Commercial Litigation Branch -
Civil Division, U.S. Department of Justice (Mikki Graves
Walser),for Defendant.

November 9, 2006