Timber Products Co. v. U.S.

• Decision Date: 02 June 2004
• Docket Number: Slip Op. 04-57. Court No. 01-00216.
• Citation: 341 F.Supp.2d 1241
• Parties: TIMBER PRODUCTS CO., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

341 F.Supp.2d 1241

TIMBER PRODUCTS CO., Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 04-57. Court No. 01-00216.

United States Court of International Trade.

June 2, 2004.

Sandler, Travis & Rosenberg, P.A. (Beth C. Ring), New York City, 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, Office of the Assistant Chief Counsel, U.S. Bureau of Customs and Border Protection, for Defendant, of counsel.

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 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 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 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 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 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 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, 477 U.S. at 322-23, 106 S.Ct. 2548.

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 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 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 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 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 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 WL 6112 (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...