Timber Products Co. v. United States

Slip Op. 04-57

United States Court of International Trade

TIMBER PRODUCTS CO.,

Plaintiff,

v. Before: Pogue, Judge

UNITED STATES, Court No. 01-00216

Defendant.

[Plaintiff’s motion for summary judgment denied; judgment entered
for Defendant.]

Decided: June 2, 2004

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

Peter D. Keisler, Assistant Attorney General, Barbara S. Williams,
Acting Attorney in Charge, Mikki Graves Walser, Attorney,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice, Michael W. Heydrich, Attorney, Of Counsel, Office of the
Assistant Chief Counsel, U.S. Bureau of Customs and Border
Protection, for Defendant.

OPINION

Pogue, Judge: This action is now before the Court on cross-

motions for summary judgment. Plaintiff Timber Products Co.

(“Plaintiff”) challenges the classification by the U.S. Bureau of

Customs and Border Protection (“Customs”)1 of certain entries of

1
Effective March 1, 2003, the United States Customs Service
was renamed the United States Bureau of Customs and Border
Protection. See Homeland Security Act of 2002, Pub. L. No. 107-
296 § 1502, 2002 U.S.C.C.A.N. (116 Stat.) 2135, 2308;
Court No. 01-00216 Page 2

plywood from Brazil under subheading 4412.14.30 of the Harmonized

Tariff Schedule of the United States (“HTSUS”), 19 U.S.C. § 1202

(1994),2 a basket provision for plywood with at least one outer ply

of nonconiferous wood. Subheading 4412.14.30, HTSUS (1997).3

Plaintiff contends that the entries should be classified under

subheading 4412.13.40, HTSUS,4 which explicitly provides, among

Reorganization Plan Modification for the Department of Homeland
Security, H.R. Doc. No. 108-32, at 4 (2003).
2
Subheading 4412.14.30, 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 (con):
4412.14 Other, with at least one outer ply
of nonconiferous wood:

. . .

4412.14.30 Other.

Subheading 4412.14.30, HTSUS (1997).
3
The complaint alleges, and the answer admits, that the
subject entries of merchandise were imported in 1996 and 1997.
See Compl. of Timber para. 1; Answer of Customs para. 1. The
Court uses the 1997 version of the HTSUS for the sake of
convenience; while it differs slightly from the 1996 version, it
does not differ in any way which makes for a difference in this
case. Cf. heading 4412.13.30, HTSUS (1996), with heading
4412.13.40, HTSUS (1997).
4
Subheading 4412.13.40, 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:
Court No. 01-00216 Page 3

other things, for plywood with at least one outer ply of “virola.”

Id. Although Plaintiff admits that it cannot show that the entries

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

tree of the “virola” genus,5 it claims a commercial designation for

the term “virola” which includes the merchandise at issue.

Plaintiff, however, has failed to produce sufficient evidence to

support either its asserted commercial designation or the

applicability of the asserted commercial designation to its

4412.14 Other, with at least one outer ply
of nonconiferous wood:
Not surface covered, or
surface covered with a
clear or transparent material
which does not obscure the
grain, texture or markings of
the face ply:

. . .

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 4412.14.30, HTSUS.
5
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).
Court No. 01-00216 Page 4

merchandise under USCIT R. 56; therefore, Plaintiff’s motion for

summary judgment is denied, and judgment is entered for Defendant.

BACKGROUND

Plaintiff imported the subject entries of plywood6 from Brazil

between 1996 and 1997. See Pl.’s Br. at 1. On its shipping and

entry documents, it listed the merchandise as “Sumauma (C. Petanda)

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

Burseaefolia) Plywood,” “Brazilian White Virola Rotary Cut

Plywood,”7 “White Virola Plywood,” “White Virola (Virola spp.)

Plywood,” and “Edaiply Faveira (Parkia spp.).” Id. at 4-5.8

6
Plywood, for purposes of heading 4412, consists of three or
more sheets of wood which are glued and pressed together.
Harmonized Commodity Description and Coding System, Explanatory
Note 44.12 (2d ed. 1996) at 681. Each sheet is known as a “ply.”
Id. At least with regards to Brazil, plywood is manufactured by
mills which shave logs into sheets or veneers. See Pl.’s Mem.
Supp. Mot. Summ. J. at 6-7 (“Pl.’s Br.”). The mills attempt to
match veneers by color, but the species of woods involved in
making the plywood are considered irrelevant. Id. Thus, one
piece of plywood may consist of various types of wood, and
indeed, a single ply may consist of more than one type of wood.
Id.; see also infra pp. 18-20.
7
Plaintiff contends that “white virola” does not refer to
any particular species of tree, but only to lighter colored wood
of any of the species which it argues are commercially known as
“virola.” Pl.’s Stmt. Mat. Facts para. 10. Defendant agrees
that the term denotes “lighter shades of wood,” although not
“regardless of the species.” Def.’s Resp. to Pl.’s Stmt. Mat.
Facts para. 10.
8
The words in parentheses designate the scientific names of
the species of tree which Plaintiff claims forms the outer ply of
Court No. 01-00216 Page 5

Because these woods are not separately listed in the HTSUS, Customs

classified the entries under subheading 4412.14.30, HTSUS, as

plywood with at least one outer face of nonconiferous wood. See

Complaint of Timber para. 6, Answer of Customs para. 6; cf.

subheading 4412.14.30, HTSUS, with subheading 4412.13.40, HTSUS.

Plaintiff contends, however, that “sumauma,” the two species of

“faveira,” and “amesclao,”9 along with other woods, are known by a

definite, general, and uniform commercial designation in the U.S.

wholesale trade as “virola,” and therefore ought to be classified

the imported plywood. Scientific names are based on taxonomy,
the hierarchy of biological classification comprised of kingdom,
phylum, class, order, family, genus, and species. See McGraw-
Hill Concise Encyclopedia of Science and Technology 1847-48 (2d
ed. 1989). Commonly, species are referred to by a scientific
name which includes two parts: the first initial or word
designates the genus, the second word or abbreviation designates
the species. "Spp." stands for species plurales, indicating that
all species of the given genus are referred to.
Rather than giving the full scientific names, Plaintiff
refers to “Sumauma (C. Petanda),” “Faveira (Parkia spp.),”
“Amesclao (T. Burseaefolia),” and “Edaiply Faveira (Parkia spp.)”
throughout its submissions as “sumauma, “faveira,” and
“amesclao.” See, e.g., Pl.’s Br. at 1 n.1, 5, 21. The Court
adopts this method of reference, for purposes of brevity only.
9
It appears that the names “sumauma,” “faveira,” and
“amesclao,” were provided on the entry papers for the plywood at
issue only for regulatory purposes, and not as a reflection of
the true nature of the imported wood. See Pl.’s Br. at 5, 8.
Rather, Plaintiff appears to admit that there is no way of
knowing whether the plywood at issue had one outer ply of any of
these woods. Because of the manner in which the plywood is
created, it is highly improbable that one sheet would be made of
a single species. See id. at 7. Any given shipment will
contain numerous wood types. See id. at 7-8.
Court No. 01-00216 Page 6

as plywood with at least one outer ply of “virola.”10

STANDARD OF REVIEW

Under USCIT Rule 56, summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” USCIT R. 56(c); see

also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In

10
In Russell Stadelman & Co. v. United States, the Court
dealt with a challenge to the classification of similar
merchandise under a previous, differently-worded version of the
HTSUS. See Russell Stadelman & Co. v. United States, 23 CIT
1036, 83 F. Supp. 2d 1356 (1999). Rather than the term “virola,”
that version of the HTSUS employed the term “baboen.” See 23 CIT
at 1046 n.11, 83 F. Supp. 2d at 1364 n.11. In Russell Stadelman
& Co., plaintiff claimed that plywood invoiced as having at least
one outer ply of “sumauma,” “faveira,” or “mangue” should be
classified as plywood with at least one outer ply of “baboen.”
See 23 CIT at 1037, 83 F. Supp. 2d at 1357. The Court found that
only certain woods of the genus “virola” were classifiable as
“baboen,” and thus that the subject merchandise was not embraced
by the provision asserted by plaintiff. See 23 CIT at 1037, 1046
n.11, 83 F. Supp. 2d at 1357, 1364 n.11. The Court moreover
found that plaintiff failed to prove a commercial designation for
“baboen,” as the proof it adduced related to identifying the
merchandise as “virola,” rather than as “baboen,” which was the
term actually used by the statute. See 23 CIT at 1044-45, 83 F.
Supp. 2d at 1363.
The instant case differs from Russell Stadelman & Co. in
that Congress has changed the wording of the tariff schedule to
provide for plywood with at least one outer ply of “virola,”
rather than one outer ply of “baboen.” However, the majority of
the deposition and affidavit testimony that plaintiff provides as
proof of its asserted commercial designation for the term
“virola” in this case was first provided to the Court in Russell
Stadelman & Co.. See Pl.’s Br. at 3.
Court No. 01-00216 Page 7

determining whether a genuine issue of fact exists, the Court

reviews the evidence submitted drawing all inferences against the

moving party. See United States v. Pan Pac. Textile Group Inc., 27

CIT __, __, 276 F. Supp. 2d 1316, 1319 (2003) (internal citation

omitted); see also Matsushita Elecs. Indus. Co v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986) (internal citations omitted).

In a classification case, on factual issues, Custom's decision

enjoys a presumption of correctness. See Universal Elecs. Co. v.

United States, 112 F.3d 488, 493 (Fed. Cir. 1997). To overcome

this presumption, a plaintiff must provide evidence that a

reasonable mind could find sufficient to establish that Customs'

decision is incorrect, see id. at 492, i.e., to avoid summary

judgment against it, such a party must profer evidence sufficient

to enable a reasonable mind, drawing all inferences in that party's

favor, to conclude that a substantial issue of material fact exists

requiring trial. See, e.g., Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986) (stating that summary judgment will not lie

where a dispute about a material fact is genuine, such that a

reasonable trier of fact could return a verdict for nonmoving

party).11 This obligation exists with respect to each element which

is essential to a party’s case. As is specifically relevant here,

11
Similarly, a party facing a properly supported motion for
summary judgment may not rest on mere allegations that a genuine
issue of material fact exists. See USCIT R. 56(e), United States
v. JICK (USA) Indus. Corp., 22 CIT 980, 981, 27 F. Supp. 2d 199,
200 (1998).
Court No. 01-00216 Page 8

summary judgment must be entered against a party who fails to

adduce the minimally necessary evidence on an element which is

essential to its case, and upon which it would have the burden of

proof at trial. See Celotex Corp. v. Catrett, 417 U.S. at 322-23.

In the absence of genuine factual issues, the “‘propriety of

the summary judgment turns on the proper construction of the HTSUS,

which is a question of law.’” Toy Biz, Inc. v. United States, 27

CIT __, __, 248 F. Supp. 2d 1234, 1241 (2003) (quoting Clarendon

Mktg., Inc. v. United States, 144 F.3d 1464, 1466 (Fed. Cir. 1998);

Nat’l Advanced Sys. v. United States, 26 F.3d 1107, 1109 (Fed. Cir.

1994)).

DISCUSSION

This case primarily turns on Plaintiff’s attempt to prove a

commercial designation for the term “virola.” The term “virola” is

not statutorily defined. The term appears in several provisions of

the tariff schedule within Chapter 44, which deals with wood

products generally.12 Chapter 44, HTSUS. Some of these provisions

12
In addition to subheading 4412.13.40, which covers plywood
not exceeding 6 mm in thickness, with at least one outer ply of
“virola,” “virola” is referenced either by name or by way of
subheading note 1 to Chapter 44 (infra note 13) in subheading
4403.49.00 (covering “[w]ood in the rough, whether or not
stripped of bark or sapwood, or roughly squared . . . Other, of
tropical wood specified in subheading note 1 to this chapter . .
. Other”), subheading 4407.24.00 (covering “[w]ood sawn or
chipped lengthwise, sliced or peeled, whether or not planed,
sanded or finger-jointed, of a thickness exceeding 6 mm . . . Of
tropical wood specified in subheading note 1 to this chapter:
Court No. 01-00216 Page 9

specifically reference “virola,” others only reference “tropical

wood,” but it is understood that “virola” falls within this

category.13 Within the text of the HTSUS itself, there is no

definition of “virola.”

Where a tariff term is not statutorily defined, it is assumed

to carry its common meaning. Mita Copystar America v. United

States, 21 F.3d 1079, 1082 (Fed. Cir. 1994) (“When a tariff term is

Virola”), and subheading 4408.39.00 (covering “[v]eneer sheets
and sheets for plywood (whether or not spliced) and other wood
sawn lengthwise, sliced or peeled, whether or not planed, sanded
or finger-jointed, of a thickness not exceeding 6 mm . . . Of
tropical wood specified in subheading note 1 to this chapter . .
. Other”). See subheadings 4403.49.00, 4407.24.00, and
4408.39.00, HTSUS.
13
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.
Court No. 01-00216 Page 10

not defined in either the HTSUS or its legislative history, the

term’s correct meaning is its common meaning.”) (citing Lynteq,

Inc. v. United States, 976 F.2d 693, 697 (Fed. Cir. 1992); Winter-

Wolff, Inc. v. United States, 22 CIT 70, 74, 996 F. Supp. 1258,

1261 (1998) (citations omitted).

The Court generally looks to standard lexicographic sources to

determine the common meaning of a tariff term. See Brookside

Veneers, Ltd. V. United States, 847 F.2d 786, 789 (Fed. Cir. 1988)

(internal citations omitted). Also helpful are the Explanatory

Notes to the HTSUS, which, although not binding, provide guidance

in interpreting the HTSUS. See Carl Zeiss, Inc. v. United States,

195 F.3d 1375, 1378 n.1 (Fed. Cir. 1999) (citation omitted); see

also Russell Stadelman & Co. v. United States, 23 CIT 1036, 1039-

40, 83 F. Supp. 2d 1356, 1359 (1999) (internal citations omitted).

The Court has located two lexicographic sources that define

“virola.” A Dictionary of Plant Sciences defines “virola” as “[a]

genus of plants some of which are big trees and an important source

of timber.” A Dictionary of Plant Sciences at 471 (2d ed. 1998).

Webster’s Third New International Dictionary defines “virola” as “a

genus of chiefly So. American forest trees (family Myristicaceae)

which yield pale to reddish brown wood.” Webster’s Third New

International Dictionary at 2556 (1993). These definitions appear

to limit the term to trees of the genus “virola.”

An annex to the Explanatory Notes for Chapter 44 contains a
Court No. 01-00216 Page 11

chart which compares 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 over a

variety of countries. Harmonized Commodity Description and Coding

System, Annex: Appellation of Certain Tropical Woods (2d ed. 1996)

at 690.14 This chart indicates that the scientific names

corresponding to the term “virola” are “virola spp.” Harmonized

Commodity Description and Coding System, Annex: Appellation of

Certain Tropical Woods (2d ed. 1996) at 713. The word “virola” in

the phrase “virola spp.” refers to the genus of the covered trees;

the word “spp.” is an abbreviation of “species plurales.” Russell

Stadelman & Co. v. United States, 23 CIT at 1037 n.1, 83 F. Supp.

2d at 1357 n.1. Thus, all species of the genus “virola” are

covered under the pilot-name “virola” as used in the Explanatory

Notes. The common meaning of the term “virola” would then appear to

14
The names which appear in subheading note 1 to Chapter 44,
and which appear in the first column of the chart in the annex to
the Explanatory notes:

are designated according to the pilot-names recommended
by the International Technical Association for Tropical
Timber (l’Association technique internationale des bois
tropicaux) (ATIBT). The pilot-name is based on the
popular name employed in the principal country of
production or of consumption.

The relevant pilot-names, together with corresponding
scientific and local names, are listed in the Annex to
the Explanatory Notes to this Chapter.

Harmonized Commodity Description and Coding System, Subheading
Explanatory Note, Chapter 44 (2d ed. 1996) at 671.
Court No. 01-00216 Page 12

encompass any wood of a tree of the genus “virola,” but not the

wood of trees of other genuses.15

The law would have the Court assume that the common meaning

and the commercial meaning of the tariff term at issue are

identical. Winter-Wolff, Inc. v. United States, 22 CIT at 74, 996

F. Supp. at 1261 (internal citations omitted). Plaintiff, however,

contends that they are not, and that there is an established

commercial meaning within the trade for “virola” which is

15
Neither “sumauma,” “faveira,” nor “amesclao” are trees of
the “virola” genus. Plaintiff invoiced its entries as “Sumauma
(C. Petanda) Plywood,” “Faveira (Parkia spp.) Plywood,” “Amesclao
(T. Burseaefolia) Plywood,” and “Edaiply Faveira (Parkia spp.).”
See Pl.’s Br. at 4-5. Plaintiff has identified its “faveira” as
being wood of the genus “parkia,” rather than the genus “virola.”
“Sumauma” and “amasclao,” as entered by Plaintiff, are likewise
not of the genus “virola.” The “C.” in “C. Petanda” would
apparently stand for the genus “ceiba.” See Russell Stadelman &
Co. v. United States, 23 CIT at 1036 n.1, 83 F. Supp. 2d at 1357
n.1; Harmonized Commodity Description and Coding System, Annex:
Appellation of Certain Tropical Woods (2d ed. 1996) at 700. The
“T.” in “T. Burseaefolia” would appear to stand for the genus
“trattinickia.” See Universidad de Cordoba, Principales especies
maderables comercializadas, at http://www.uco.es/organiza/
servicios/jardin/cd1/Maderas%20CITES/anexoII.htm (last visited
May 24, 2004) (listing “trattinickia spp.” and “tetragastris
spp.” as the scientific names corresponding to the commercial
name “amesclao”); Manejoflorestal.org, Lista de espécies
madereiras, at http://www.manejoflorestal.org/guia.cfm?
cap=12 (last visited May 24, 2004) (listing “breu” and “amescla”
as common names of “Trattinickia burseraefolia Mart”) (the Court
reads that Plaintiff’s use of “burseaefolia” is most likely a
misspelling of “burseraefolia”). Plaintiff also invoiced some
entries as “Brazilian White Virola Rotary Cut Plywood,” “White
Virola Plywood,” and “White Virola (Virola spp.) Plywood,” but in
stating that the genuses on the entry papers were listed only for
regulatory purposes, appears to admit that the wood represented
in these entries may not be of the genus “virola.” See Pl.’s Br.
at 4-5; see supra notes 7, 9.
Court No. 01-00216 Page 13

considerably more expansive than the “common” meaning, and which

describes the merchandise at issue. Where it is argued that the

common and commercial meanings differ, the commercial meaning will

not prevail unless a party can demonstrate that the commercial

meaning is “definite, uniform, and general” throughout the trade.

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

1984) (quoting Moscahlades Bros. v. United States, Inc., 42

C.C.P.A. 78, 82 (1954)).16

Accordingly, to establish that its proposed commercial

designation of “virola” displaces the common meaning of that tariff

term, Plaintiff must prove that the term “virola” has a commercial

meaning in the trade “which is general (extending over the entire

country), definite (certain of understanding) and uniform (the same

everywhere in the country,” and that this commercial meaning

encompasses Plaintiff’s merchandise. Rohm & Haas Co. v. United

16
The term “virola” was placed into the HTSUS by
presidential proclamation, rather than by act of Congress. See
Proclamation No. 6857, 60 Fed. Reg. 64,817, 64,887, 64,889 (Dec.
15, 1995), Proclamation No. 6948, 61 Fed. Reg. 56,385, 56,393
(Oct. 31, 1996). The first proclamation, among other things,
struck “baboen” from the list of woods in subheading note 1 to
chapter 44, and replaced it with “virola.” See Proclamation No.
6857, 60 Fed. Reg. at 64,889 (Dec. 15, 1995). The second
proclamation amended subheading 4412.13 to provide specifically
for plywood “with at least one outer ply of . . . virola,” rather
than the more general previous reference to plywood “with at
least one outer ply of tropical wood specified in subheading note
1 to this chapter.” See Proclamation No. 6948, 61 Fed. Reg. at
56,393 (Oct. 31, 1996); cf. subheading 4412.13, HTSUS (1996),
with subheading 4412.13.40, HTSUS (1997). Nonetheless, the logic
and substance of the requirements articulated in Rohm & Haas Co.
still hold.
Court No. 01-00216 Page 14

States, 5 CIT 218, 226, 568 F. Supp. 751, 757 (1983) (citing S.G.B.

Steel Scaffolding & Shoring Co. v. United States, 82 Cust. Ct. 197,

206, C.D. 4802 (1979) (internal citations omitted)). Each of these

constitutes an essential element of Plaintiff’s claim.

Plaintiff, however, has failed to produce evidence which a

reasonable mind, even drawing all inferences in Plaintiff’s favor,

could find sufficient to fulfill the Rohm & Haas Co. test.

Plaintiff has failed to make a sufficient initial showing of a

commercial meaning that is definite, general, and uniform; in

addition, Plaintiff has failed to show that even if its purported

commercial meaning were accepted, the merchandise in issue would be

described by it. In evaluating the evidence Plaintiff has put

forth, the Court first discusses the requirements of generality,

uniformity, and definiteness, and then discusses the suitability of

Plaintiff’s purported commercial meaning to the merchandise at

issue.

Plaintiff has produced affidavits and deposition evidence from

persons who identify themselves as wholesalers of plywood, and who

testify as to a general use for the term “virola” among such

wholesalers. However, if an article or good is only known by a

certain name “in one trade or branch of trade,” no commercial

designation can follow. Maddock v. Magone, 152 U.S. 368, 372

(1894). In this case, it is not the meaning of “plywood” that is

being construed; it is the meaning of “virola.” “Virola,” whatever
Court No. 01-00216 Page 15

it may be, is imported by trades other than the plywood trade, as

evidenced by the term’s several appearances throughout Chapter 44

of the HTSUS. More specifically, the HTSUS contemplates the

importation of “virola” by those who import wood in the rough, wood

sawn or chipped lengthwise, as well as veneer sheets and sheets for

plywood (whether or not spliced) and other wood sawn lengthwise.

See supra note 12.

Even if Plaintiff’s purported commercial designation for the

term “virola” were to be found consistent within the plywood trade,

without evidence as to the term’s usage in the other trades

importing “virola,” the Court cannot find that Plaintiff has made

a sufficient initial demonstration of a general meaning for the

term. Where a single term is used multiple times over the course

of a statute, the courts presume that the meaning of the term

remains consistent. See, e.g., RHP Bearings Ltd. v. United States,

288 F.3d 1334, 1346-47 (Fed. Cir. 2002); SKF USA Inc. v. United

States, 263 F.3d 1369, 1382 (Fed. Cir. 2001).17 There is no sign

17
Both RHP Bearings Ltd. and SKF USA Inc. involved a term in
the dumping statutes which, in addition to being used multiple
times, was also statutorily defined. See RHP Bearings Ltd. v.
United States, 288 F.3d at 1346-47; SKF USA Inc. v. United
States, 263 F.3d at 1382. Although “virola” is not defined in the
text of the HTSUS, the Court cannot see why the lack of a
statutory definition should permit the definition of “virola” to
change from provision to provision, especially in light of a
definition in the Explanatory Notes. Moreover, even were there
no definition occurring in the Explanatory Notes, it is
inappropriate for the Court to allow the word “virola” to take on
different meanings with each provision in the absence of any
indication that this was intended by Congress.
Court No. 01-00216 Page 16

or indication that Congress intended for more than one meaning of

“virola” to be applied in construing the terms of the HTSUS.

Therefore, to show a “general” commercial meaning for the term

“virola,” it is necessary for Plaintiff to place before the Court

evidence with regard to the term’s use generally. This it has

failed to do.

Plaintiff argues that it is not required to put forth evidence

with regard to any merchandise other than that which is at issue

here. See Pl.’s Resp. to Def.’s Mot. to Dismiss in Part for Lack

of Subject Matter Jurisdiction and Cross-Mot. for Summ. J. at 21

(“Pl.’s Resp.”). Although this might be true in another case, the

Court cannot agree with the proposition as applied here because of

the number of different tariff provisions that use the term

“virola.” The statutory construction dilemma is unavoidable here.18

18
Moreover, the single case which Plaintiff cites for the
proposition that no evidence is necessary with regard to the
meaning of “virola” in other trades that import “virola” is
inapposite. Plaintiff cites Am. Net & Twine Co. v. Worthington,
141 U.S. 468 (1891). See Pl.’s Resp. at 21 n.8. Contrary to
Plaintiff’s claim, that case does not stand for the proposition
that the meaning a term in contention holds in other, similar
trades that use the term is irrelevant. Rather, that case is
simply one recognizing that an eo nomine provision which was
specific in its reference to a particular use prevailed over a
more general, otherwise applicable provision. See Am. Net &
Twine Co. v. Worthington, 141 U.S at 472. The case involved
linen thread which was imported into the United States as
“gilling twine” for the repair of fishing nets. Id. at 471. The
Supreme Court found that, although the merchandise was
classifiable as linen thread, because it had been imported into
the country solely for use in the repair of nets, and because
Congress, in providing for “gilling twine,” obviously intended
the classification of goods used as such, the thread at issue
Court No. 01-00216 Page 17

Plaintiff’s failure to meet its initial burden of proof with

regard to generality also applies to the requirement of uniformity.

Because Plaintiff has produced only the testimony of plywood

wholesalers, the Court cannot determine whether wholesalers of

other trades located in various portions of the country and

importing “virola” wood into the United States uniformly use the

same definition of “virola” asserted by Plaintiff. Without some

such proof, a commercial meaning of “virola” that satisfies

principles of statutory construction cannot follow.

Plaintiff’s threshold showing also fails the requirement of

definiteness. To be definite, a purported commercial meaning must

be “certain of understanding.” S.G.B. Steel Scaffolding & Shoring

Co. v. United States, 82 Cust. Ct. 197, 206 (1979). Plaintiff’s

claimed commercial meaning of “virola” encompasses more than wood

of the “virola” genus; it would include wood of “near species,”

which Plaintiff contends include “sumauma,” “faveira,” and

“amesclao.” Pl.’s Br. at 1. All told, Plaintiff contends that

should be classified as “gilling twine,” rather than as linen
thread, in recognition of its intended use. Id. at 474.
Moreover, although the language of commercial designation is used
in the case, the case is so factually distinct as to have no
bearing on the issues before the Court in this action because in
that case, there was no question as to what materials Plaintiff’s
product consisted of; the question focused entirely on the
product’s use. The instant case focuses on whether or not the
material of which Plaintiff’s plywood is made is, in fact,
“virola”; the question does not rise to one of material fact,
however, because of Plaintiff’s failure to put forth sufficient
evidence to meet its initial burden under USCIT R. 56. See infra
pp. 18-20.
Court No. 01-00216 Page 18

there are approximately thirty-five species of trees which are

commercially known as “virola.” Pl.’s Br. at 5. However,

Plaintiff at no time identifies those species, and none of the

affiants or deponents whose testimony Plaintiff places before the

Court identifies them.

Plaintiff argues that it is not required to identify the

thirty-five “near species,” other than to show that “sumauma,”

“faveira,” and “amesclao” are among them, because this suffices to

satisfy the requirement that its commercial meaning be “certain of

understanding.” See Pl.’s Resp. at 20, 24. On the contrary,

however, to the extent that the terms used in the HTSUS are meant

to enable a Customs officer to classify a good, a definition that

includes “approximately thirty-five” otherwise unnamed species of

wood, without more, cannot be considered definite. Inasmuch as the

definition inherently includes unknown species, it cannot be

“certain of understanding” for purposes of administering the

HTSUS.19

19
Plaintiff apparently relies again on the notion that it
need not put forth evidence with regard to merchandise not
actually before the Court, and relies on United States v. Fung
Chong Co., 34 C.C.P.A. 40 (1946) for the proposition that it need
not show what is excluded from the meaning of a tariff term, but
only that its merchandise is included therein. See Pl.’s Resp.
at 24. Fung Chong Co., however, involved the failure to prove a
commercial designation of the term “orange.” The Court there
held that in the absence of proof of the term’s meaning,
testimony that the merchandise at issue was excluded from the
term was insufficient to establish commercial designation.
United States v. Fung Chong Co., 34 C.C.P.A. at 44. Certainly,
Fung Chong Co. does not help the Plaintiff here. Here,
Court No. 01-00216 Page 19

Finally, Plaintiff has failed to make an initial showing that

its purported commercial designation would apply to the merchandise

before the Court. Plaintiff effectively concedes that the wood

names listed on its entry papers do not in fact reflect the actual

species composition of the entries, but were chosen for regulatory

purposes. See Pl.’s Br. at 5, 8. In other words, Plaintiff’s

entries may not consist entirely of “sumauma,” “faveira,” and

“amasclao,” the three woods that Plaintiff asserts are known

commercially as “virola.” Certainly the true identity of the outer

ply is unknown. If Plaintiff is unable to identify the species

composition of its entries, it cannot make the necessary threshold

demonstration that the entries could be classified under a

commercial designation that is based on species identification.20

Plaintiff’s refusal to identify the species on the basis that
they are not before the Court is not sufficient where Plaintiff
seeks to include these species in its purported commercial
designation.
20
Given the nature of the evidence in this case, Plaintiff’s
insistence on a commercial meaning predicated on species appears
particularly problematic. Plaintiff did not advance a commercial
meaning of “virola,” that, rather than emphasizing particular
species, emphasized certain qualities of the wood, such as its
durability and strength. The affidavit and deposition evidence
from Plaintiff’s witnesses coalesces far more strongly around the
idea that “virola” refers to wood of certain physical
characteristics, rather than wood from certain species. See
Bennett Aff., Pl.’s Ex. 2 para. 4, Heitzmann Aff., Pl.’s Ex. 5
para. 6, Stadelman Aff. II, Pl.’s Ex. 3 para. 2, Rego Aff., Pl.’s
Ex. 7 para. 4, Hall Depo., Def.’s Ex. E at 67, Rego Depo. I,
Pl.’s Ex. 9 at 67, Rego Depo. II, Def.’s Ex. B at no. 10.
Consequently, Plaintiff’s insistence on a commercial meaning
based on species exposes this basic fault in Plaintiff’s proof:
although the actual species makeup of the wood at issue is
Court No. 01-00216 Page 20

Plaintiff has failed to produce evidence that the merchandise

contained in its entries is encompassed by its asserted commercial

designation of “virola.”21 Accordingly, Plaintiff, having failed

to meet its threshold burden of proof on its motion for summary

judgment, has failed show that it is entitled to judgment as a

matter of law.22

unknown, Plaintiff still contends that it is made up of
approximately thirty-five species known as “virola,” rather than
wood of a durability, or color, or strength which could mark it
commercially as “virola.”
21
Plaintiff points the Court to Neuman & Schwiers Co. v.
United States, for the proposition that its evidence is
sufficient to carry its burden on summary judgment. See Pl.’s
Resp. at 25-27; Neuman & Schwiers Co. v. United States, 24
C.C.P.A. 127 (1936). The evidence in Neuman & Schweiers Co.
consisted of ten witnesses for the plaintiff who all testified
that plaintiff’s product was commercially known and sold in the
trade as “sauce.” Neuman & Schwiers Co. v. United States, 24
C.C.P.A. at 132-33. None of the witnesses contradicted each
other, nor were any witnesses who testified to the contrary
produced by the government. See id. at 129-130. In this case,
Plaintiff has likewise produced a series of statements by
witnesses who have no particular contradictions in their
testimony that “sumauma,” “faveira,” and “amasclao” are all
commercially known as “virola.” The government has produced no
affiants or deponents to contradict the evidence of Plaintiff’s
witnesses. In Neuman & Schwiers Co., however, the definition of
“sauce” was clearly established by the witnesses, and shown to be
general, uniform, and definite with regards to the wholesaling of
“sauce.” This case is clearly distinguishable. As laid out
above, Plaintiff has failed to show a commercial meaning of
“virola” that is used generally and uniformly by wholesalers of
that good, and moreover has failed to provide a meaning which is
“definite.”
22
The Court’s disposition of this case renders moot
Plaintiff’s motion in limine to strike exhibits and Defendant’s
motion to dismiss in part for lack of subject matter
jurisdiction. See Pl.’s Mem. Supp. Mot. in Limine to Strike
Exhibits; Def.’s Mem. Supp. Mot. to Dismiss in Part of Lack of
Court No. 01-00216 Page 21

CONCLUSION

Plaintiff has failed to produce sufficient evidence which,

even drawing all inferences in its favor, could demonstrate the

existence of a commercial designation for “virola” that is

definite, general, and uniform; moreover, Plaintiff has failed to

adduce proof demonstrating that its merchandise would be embraced

by the commercial designation it advances in this litigation.

Plaintiff has failed to show that it is entitled to judgment as a

matter of law in this case. Plaintiff’s motion for summary

judgment is therefore denied, and judgment is entered for the

Defendant.

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

Dated: June 2, 2004
New York, New York

Juris. & Cross-Mot. Summ. J. at 6-8.