Russell Stadelman & Co. v. United States

Slip Op. 99-139

United States Court of International Trade

RUSSELL STADELMAN & CO.,

Plaintiff,

v.

Before: Pogue, Judge

UNITED STATES,

Court No. 96-08-01911

Defendant,

[Plaintiff’s Motion for Summary Judgment is denied; Defendant’s

Cross-Motion for Summary Judgment is granted.]

Decided: December 21, 1999

Sandler, Travis & Rosenberg, P.A., (Edward M. Joffe and Beth C.

Ring) for Plaintiff.

David W. Ogden, Acting Assistant Attorney General, Joseph I.

Liebman, Attorney-in-Charge, International Trade Field Office,

Mikki Graves Walser, Attorney, Commercial Litigation Branch, Civil

Division, U.S. Department of Justice; George Brieger, Office of

Assistant Chief Counsel, International Trade Litigation, U.S.

Customs Service, Of Counsel, for Defendant.

Opinion

Pogue, Judge: Plaintiff, Russell Stadelman & Co., challenges a

decision of the United States Customs Service ("Customs") denying

Plaintiff’s protests filed in accordance with section 514 of the

Tariff Act of 1930, as amended, 19 U.S.C. § 1514 (1994). At issue

Court No. 96-08-01911 Page 2

is the proper tariff classification under 19 U.S.C. § 1202 (1994),

Harmonized Tariff Schedule of the United States ("HTSUS"), of

Plaintiff’s imports of sumauma (Ceiba pentandra) plywood, faveira

(Parkia spp.) plywood, and mangue (T. rhoisoia) plywood from

Brazil.1

Plaintiff claims that the subject merchandise is classifiable

under subheading 4412.11.20, HTSUS (1992-1995),2 which covers

"[p]lywood consisting solely of sheets of wood, each ply not

exceeding 6 mm in thickness . . . [w]ith at least one outer ply of

the following tropical woods: . . . Baboen[.]" Plywood imported

from Brazil and classifiable under subheading 4412.11.20, HTSUS, is

eligible for duty-free treatment under the Generalized System of

Preferences ("GSP"). Customs classified the merchandise under a

1

The italicized names in parentheses refer to each plywood’s

corresponding scientific name. The 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). The first name in parentheses is the genus,

the second is the species. "Spp." stands for species plurales,

indicating that all species of the given genus are referred to.

The "T." in "T. rhoisoia" is apparently the genus

abbreviated. The record, however, fails to indicate which genus

the "T." refers to.

2

Plaintiff imported from Brazil the plywood at issue during

the period October 1992 through February 1995. Throughout these

years, the language of the relevant HTSUS provisions remained the

same.

Court No. 96-08-01911 Page 3

residual provision, subheading 4412.12.20, HTSUS (1992-1995), which

covers "[p]lywood consisting solely of sheets of wood, each ply not

exceeding 6 mm in thickness[,]" and not requiring an outer ply of

one of the tropical woods enumerated in subheading 4412.11, HTSUS.

Brazilian imports classifiable under subheading 4412.12.20, HTSUS,

are not eligible for GSP treatment; therefore, Customs assessed the

subject merchandise at the provided 8% duty rate.

Jurisdiction is predicated on 28 U.S.C. § 1581(a)(1994);

therefore, Customs’ classification is subject to de novo review

pursuant to 28 U.S.C. § 2640 (1994). This action is before the

Court on the cross-motions for summary judgment made by Plaintiff

and Defendant, the United States, pursuant to USCIT Rule 56.3

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 Rule 56(d); see

3

Defendant moved this Court for an order granting oral

argument on the parties’ cross-motions for summary judgment.

Because the issues presented are thoroughly addressed in the

parties’ briefs, however, Defendant’s motion is denied.

Court No. 96-08-01911 Page 4

also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);

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

The Court analyzes a Customs classification issue in two

steps: "first, [it] construe[s] the relevant classification

headings; and second, [it] determine[s] under which of the properly

construed tariff terms the merchandise at issue falls." Bausch &

Lomb, Inc. v. United States, 148 F.3d 1363, 1365 (Fed. Cir.

1998)(citing Universal Elecs., Inc. v. United States, 112 F.3d 488,

491 (Fed. Cir. 1997)). Whether the subject merchandise is properly

classified is ultimately a question of law. See id. Summary

judgment of a classification issue is therefore appropriate "when

there is no genuine dispute as to the underlying factual issue of

exactly what the merchandise is."4 Id.

Here, the parties agree what the merchandise is. The parties

agree that the subject merchandise "consists of sheets of plywood,

with no single ply exceeding 6 mm. [sic] in thickness, and [that

4

Following the Federal Circuit’s holding in The Mead Corp.

v. United States, 185 F.3d 1304, 1307 (1999), the Court does not

afford the deference articulated in Chevron U.S.A., Inc. v.

Natural Resources Defense Council, 467 U.S. 837, 843-45 (1984),

to Customs’ standard classification rulings. Moreover, although

there is a statutory presumption of correctness, see 28 U.S.C. §

2639(a)(1), that attaches to Customs’ classification decisions,

that presumption does not apply where the Court is presented with

a question of law in a proper motion for summary judgment, see

Universal Electronics, 112 F.3d at 492.

Court No. 96-08-01911 Page 5

are] not surface covered." Pl.’s Statement of Material Facts As To

Which There Is No Genuine Issue To Be Tried ("Pl.’s Statement") ¶

1; Def.’s Resp. to Pl.’s Statement ¶ 1. Moreover, the parties

agree that the merchandise at issue consists of sumauma (Ceiba

pentandra) plywood, faveira (Parkia spp.) plywood, and mangue (T.

rhoisoia) plywood.5 See Def.’s Additional Statement of Material

Facts As To Which There Is No Genuine Issue To Be Tried ("Def.’s

Additional Statement") ¶ 1; Pl.’s Resp. To Def.’s Additional

Statement ¶ 1. Thus, Plaintiff and Defendant do not disagree as to

what the merchandise is; they simply disagree as to how it should

5

Originally in its complaint, Plaintiff stated that the

subject imports were invoiced as "virola, white virola, sumauma,

faviera [sic], mangue, amesclao, breu, muiratinga, guatambu[,]

and/or with terms of similar import and description." Pl.’s

Compl. ¶ 18. According to Defendant, however, the subject

imports were invoiced as edai virola (baboen) plywood and red

virola (baboen) plywood, which Customs classified under

subheading A4412.11.20, HTSUS, free of duty; sumauma (Ceiba

pentandra) plywood, faveira (Parkia spp.) plywood, and Mangue (T.

rhoisoia) plywood, which Customs classified under subheading

4412.12.20, HTSUS, 8% ad valorem; pinus plywood, which Customs

classified under subheading 4412.19.40, HTSUS, 20% ad valorem;

and veneers of amesclao, light breu, and copaiba, which Customs

classified under subheading 4408.90.00, HTSUS, free of duty. See

Def.’s Resp. to Pl.’s Statement ¶ 3; Def.’s Mem. in Opp’n to

Pl.’s Mot. for SJ at 1-2.

Therefore, according to Defendant, the only imports at issue

are sumauma (Ceiba pentandra) plywood, faveira (Parkia spp.)

plywood, and mangue (T. rhoisoia) plywood. See Def.’s Mem. in

Opp’n to Pl.’s Mot. for SJ at 2. Plaintiff now agrees that the

only imports at issue are sumauma, faveira, and mangue plywood.

See Pl.’s Resp. To Def.’s Additional Statement ¶ 1.

Court No. 96-08-01911 Page 6

be classified. Summary judgment of the classification issue is

therefore appropriate.

Discussion

The HTSUS consists of (A) the General Notes; (B) the General

Rules of Interpretation; (C) the Additional U.S. Rules of

Interpretation; (D) sections I to XXII, inclusive (encompassing

chapters 1 to 99, and including all section and chapter notes,

article provisions, and tariff and other treatment accorded

thereto); and (E) the Chemical Appendix.

The proper classification of merchandise is governed by the

General Rules of Interpretation ("GRI") to the HTSUS. See Orlando

Food Corp. v. United States, 140 F.3d 1437, 1439 (Fed. Cir. 1998).

GRI 1 for the HTSUS provides that, "for legal purposes,

classification shall be determined according to the terms of the

headings and any relative section or chapter notes . . . ." GRI 1,

HTSUS; see also Orlando Food Corp., 140 F.3d at 1440; Harmonized

Commodity Description and Coding System, Explanatory Notes (1st ed.

1986)("Explanatory Notes")6 at 1 ("[T]he terms of the headings and

6

The Explanatory Notes "provide a commentary on the scope of

each heading of the Harmonized [Tariff] System and are thus

useful in ascertaining the classification of merchandise under

the system." H.R. Conf. Rep. No. 576, 100th Cong., 2nd Sess. 549

Court No. 96-08-01911 Page 7

any relative Section or Chapter Notes are paramount, i.e., they are

the first consideration in determining classification[.]"). Here,

the parties agree that the subject imports should be classified

under heading 4412, HTSUS, but dispute the correct subheading.

Therefore, the Court reviews the parties’ proffered classifications

pursuant to GRI 6. See GRI 6, HTSUS ("For legal purposes, the

classification of goods in the subheadings of a heading shall be

determined according to the terms of those subheadings and any

related subheading notes and, mutatis mutandis, to the [preceding

GRIs], on the understanding that only subheadings at the same level

are comparable.").

The merchandise at issue literally falls within the scope of

Customs’ classification under subheading 4412.12.20, HTSUS, a

residual provision covering plywood without an outer ply of one of

the tropical woods enumerated in subheading 4412.11, HTSUS.

Plaintiff argues, however, that the subject merchandise is more

specifically classifiable under subheading 4412.11.20, HTSUS, as

plywood with at least one outer ply of the tropical wood "baboen."

Classification of imported merchandise in a residual, or "basket,"

(1988). It has long been settled that, "[w]hile the Explanatory

Notes do not constitute controlling legislative history, they do

offer guidance in interpreting HTS[US] subheadings." Lonza, Inc.

v. United States, 46 F.3d 1098, 1109 (Fed. Cir. 1995).

Court No. 96-08-01911 Page 8

provision is only appropriate when there is no tariff category that

covers the merchandise more specifically. See EM Indus., Inc. v.

United States, 22 CIT , , 999 F. Supp. 1473, 1480

(1998)("’Basket’ or residual provisions of HTSUS Headings . . . are

intended as a broad catch-all to encompass the classification of

articles for which there is no more specifically applicable

subheading."); E.M. Chemicals v. United States, 20 CIT , ,

923 F. Supp. 202, 206 (1996); see also GRI 3(a), HTSUS. Therefore,

before the Court may conclude that Customs correctly classified the

subject goods under subheading 4412.12.20, HTSUS, we must first

address whether they are more specifically classifiable under

subheading 4412.11.20, HTSUS. The precise issue before the Court,

then, is whether Plaintiff’s imports of sumauma (Ceiba pentandra)

plywood, faveira (Parkia spp.) plywood, and mangue (T. rhoisoia)

plywood qualify as "baboen."

Neither the HTSUS nor its legislative history defines

"baboen." "When a tariff term is not defined in either the HTSUS

or its legislative history, the term’s correct meaning is its

common meaning." Mita Copystar America v. United States, 21 F.3d

1079, 1082 (Fed. Cir. 1994)(citing Lynteq, Inc. v. United States,

976 F.2d 693, 697 (Fed. Cir. 1992)). To determine the common

meaning of a tariff term, "[a] court may rely upon its own

Court No. 96-08-01911 Page 9

understanding of terms used, and may consult standard lexicographic

and scientific authorities[.]" Id. (citing Brookside Veneers, Ltd.

v. United States, 6 Fed. Cir. (T) 121, 125, 847 F.2d 786, 789

(1988)). "Additionally, a court may refer to the Explanatory Notes

of a tariff subheading, which do not constitute controlling

legislative history but nonetheless are intended to clarify the

scope of HTSUS subheadings and to offer guidance in interpreting

subheadings." Id. (citing Lynteq, 976 F.2d at 699).

Thus, the Court turns to various dictionaries and scientific

authorities to construe the tariff term "baboen." Although most of

the dictionaries the Court consulted did not define the term, the

ones that did defined "baboen" as a "tropical American timber tree

(Myristica surinamensis) with reddish wood." Webster’s New

International Dictionary 197 (1955); Webster’s Third New

International Dictionary 156 (1993). Myristica is a botanical

genus within the family Myristicaceae. See The Concise Oxford

Dictionary of Botany, 268 (Michael Allaby ed., 1992).

Meanwhile, a more technical dictionary defines "baboen" as

"Virola surinamensis[.]" D.J. Mabberley, The Plant Book: A

Portable Dictionary of the Vascular Plants 71 (1997). Virola

surinamensis, in turn, is the scientific name for a tropical

American timber within the botanical genus Virola, which also falls

Court No. 96-08-01911 Page 10

under the botanical family Myristicaceae. See id. 747-48.

Plaintiff’s Exhibit 1 to its motion for summary judgment, another

technical source, also defines "baboen" as Virola surinamensis,

citing as related species Virola sebifera and Virola melinonii.

See Surinam Forest Service, Surinam Timber: A Summary with Brief

Descriptions of the Main Timber Species of Surinam 7-8 (2d ed.

1955).

The Court cannot locate a technical dictionary recognizing

Myristica surinamensis as an actual tree. Thus, the standard and

technical dictionaries do not appear to define "baboen"

consistently. For the following reasons, however, the Court

concludes that in this case it is more accurate to rely on the

scientific authorities for the common meaning of the term. First,

as noted above, most standard dictionaries do not even define the

term, and the ones that did defined the term scientifically. In

addition, it is undisputed that the term "baboen" is not used

commercially in the United States. See Def.’s Additional Statement

¶ 3; Pl.’s Resp. to Def.’s Additional Statement ¶ 3. In such

situations where a tariff term is not generally or commercially

used, it is particularly appropriate to consult more technical

authorities for the term’s intended meaning. See C.J. Tower & Sons

of Buffalo, Inc. v. United States, 69 Cust. Ct. 105, 111

Court No. 96-08-01911 Page 11

(1972)(recognizing that the court may consult technical sources in

construing tariff terms where the definitions of articles of a

technical nature are not reflected in dictionaries prepared for

general use), aff’d, 61 C.C.P.A. 74, 496 F.2d 1219 (1974).

Second, authoritative sources indicate that the standard and

technical definitions of "baboen" are actually consistent. At the

end of the 1800s, Myristica was the only recognized genus of the

family Myristicaceae. See Dr. E. Warming, A Handbook of Systematic

Botany 393 (1895). Since then, the scope of Myristicacea has

broadened to include up to nineteen genera, Virola among them. See

Roger Hyam and Richard Pankhurst, Plants and Their Names: A Concise

Dictionary 332 (1995); The Concise Oxford Dictionary of Botany 268

(Michael Allaby ed., 1992). At one point during the evolution of

the term, it appears that Myristica and Virola were synonymous.

See Paxton’s Botanical Dictionary 384, 585 (Samuel Hereman ed.,

1868). Thus, it appears likely that the standard dictionary

definition of "baboen" as Myristica surinamensis is based on an

outdated scientific definition of the term, which was replaced by

Virola surinamensis when Virola became an additionally recognized

genus of the family Myristicaceae. Under this theory, then, the

standard lexicographic and scientific definitions for "baboen" are

Court No. 96-08-01911 Page 12

consistent.7

In addition, the Explanatory Notes help to define Congress’

intended meaning of "baboen." The subheading Explanatory Note to

Chapter 44 explains that,

For the purposes of classification in subheadings 44.03,

44.07, 44.08 and 44.12, certain tropical woods are

designated according to the pilot-name 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 names and local names, are listed in the Annex

to the Explanatory Notes to this Chapter.

Explanatory Notes at 623.

During the drafting of Chapter 44 to the Harmonized Tariff

System, the United Nations Conference on Trade and Development

("UNCTAD") recommended that the Harmonized System Committee of the

Customs Cooperation Council adopt the ATIBT pilot-names for certain

tropical woods. See Harmonized Commodity Description and Coding

System, Chapter 44: Wood and Articles of Wood, Proposals Submitted

by UNCTAD, Doc. 23.769 E at 3 (Dec. 20, 1977). Many of the

7

The Court’s finding is buttressed by the fact that

Plaintiff did not argue that there is any inconsistency between

the standard and technical dictionaries’ respective definitions

of "baboen."

Court No. 96-08-01911 Page 13

tropical wood species had different names in commerce according to

local dialect. See id. Thus, the Harmonized System Committee

adopted the ATIBT pilot-names for use in the Harmonized Tariff

Schedule, as the pilot-names represented "the only existing

international [n]omenclature, established by agreement between

producers of or traders in tropical timber and scientific bodies."

Harmonized Commodity Description and Coding System, Chapter 44:

Wood and Articles of Wood, Additional Information and New Proposals

Submitted by UNCTAD, Doc. 24.153 E at 5 (Apr. 12, 1978).

As with each pilot-name, the Explanatory Notes Annex to

Chapter 44 lists "baboen" with its corresponding scientific and

local names. See Explanatory Notes at 643. No local name for

"baboen" in the United States is listed. See id. The scientific

names listed as equivalent to "baboen" are Virola venezuelensis,

Virola bicuhyba, Virola melinonii, Virola surinamensis, Virola

mycetis, and Virola koschnyi. See id.8

The ultimate question for this Court to answer is whether the

subject merchandise was properly classified. See Bausch & Lomb,

8

The Annex lists "Ucuhuba" as the local name for "baboen" in

Brazil, the exporting country. See Explanatory Notes at 643.

"Ucuhuba" is defined as Virola surinamensis. See D.J. Mabberley,

The Plant Book: A Portable Dictionary of the Vascular Plants 734

(1997).

Court No. 96-08-01911 Page 14

148 F.3d at 1365. Although the lexicographic and Explanatory Note

definitions of "baboen" differ slightly, both appear to limit the

scope of the term to species of the genus Virola. Plaintiff’s

imports of sumauma (Ceiba pentandra) plywood, faveira (Parkia spp.)

plywood, and mangue (T. rhoisoia) plywood are not of the genus

Virola. Therefore, Plaintiff’s imports are not classifiable as

plywood with "at least one outer ply of . . . Baboen" under

subheading 4412.11.20, HTSUS. Accordingly, Customs correctly

classified the subject imports under subheading 4412.12.20, HTSUS,

the residual provision for "[p]lywood consisting solely of sheets

of wood, each ply not exceeding 6 mm in thickness[,]" and not

requiring an outer ply of one of the tropical woods enumerated in

subheading 4412.11, HTSUS.

Plaintiff advances three main arguments challenging Customs’

refusal to classify the subject imports as containing an outer ply

of "baboen" within the meaning of subheading 4412.11.20, HTSUS: (1)

the tariff term "baboen" should be interpreted according to its

common and commercial meaning, which is broader than its scientific

meaning, see Mem. in Supp. of Pl.’s Mot. for SJ at 14; (2) even if

the Court were to find that the common and commercial meanings of

"baboen" differ, Plaintiff’s imports are within the commercial

meaning of the term, see id. at 26-28; see also Pl.’s Reply to

Court No. 96-08-01911 Page 15

Def.’s Mem. in Opp’n to Pl.’s Mot. for SJ ("Pl.’s Reply") at 20-21;

and (3) classification according to scientific names is

commercially impracticable to administer because many tropical

plywoods are manufactured from mixed species yet marketed under a

single commercial name, see Mem. in Supp. of Pl.’s Mot. for SJ at

24-25.

(A) Common and commercial meaning versus scientific meaning

Plaintiff argues that "tariff terms are to be interpreted

according to a common and commercial meaning broader in scope than

narrow scientific definition--unless there is a clear expression of

Congressional intent to use that narrower scientific definition."

Mem. in Supp. of Pl.’s Mot. for SJ at 14, 15 (citing Two Hundred

Chests of Tea, 22 U.S. 430 (1824); Alexandria Int’l, Inc. v. United

States, 13 CIT 689 (1989)).

According to Plaintiff, the common and commercial meaning of

"baboen" is virola, and "virola"9 covers not only the species of

the botanical genus Virola, but the thirty-five near species,

including Plaintiff’s imports of sumauma (Ceiba pentandra) plywood,

faveira (Parkia spp.) plywood, and mangue (T. rhoisoia) plywood.

9

Henceforth, "virola" in normal script refers to the common

designation of the term; "Virola" italicized and capitalized

refers to the term’s scientific meaning as a botanical genus.

Court No. 96-08-01911 Page 16

See Mem. in Supp. of Pl.’s Mot. for SJ at 6. Customs therefore

erred, Plaintiff argues, in limiting "baboen" to its scientific

definition, which only covers species of the botanical genus

Virola. See id. at 17.

In construing the meaning of a tariff term, the Supreme Court

in Two Hundred Chests of Tea pronounced, "[The legislature] did not

suppose our merchants to be naturalists, or geologists or

botanists. It applied its attention to the description of

articles, as they derived their appellations in our own markets[.]"

22 U.S. at 438. Similarly, in Alexandria Int’l, this court

recognized, "It is well established that where the scientific

meaning of a tariff term differs from the term’s common or

commercial meaning, the term is not to be construed according to

the scientific meaning, absent a contrary intent by Congress in

using the term." 13 CIT at 692 (citing Two Hundred Chests of Tea,

22 U.S. at 438).

Plaintiff’s reliance on these two cases in this instance,

however, is misplaced. In Two Hundred Chests of Tea, the Supreme

Court reviewed whether certain imported teas fell within the common

and commercial meaning of "bohea tea." See 22 U.S. at 439. In

doing so, the Court defined the scope of actual terms of the

statute, "bohea tea." See id. ("The true inquiry, therefore, is,

Court No. 96-08-01911 Page 17

whether, in a commercial sense, the tea in question is known, and

bought and sold, and used, under the denomination of bohea tea.").

Similarly, in Alexandria Int’l, this court sought to determine the

common and commercial meaning of the tariff term "sardine" in

reviewing whether imports of a particular type of anchovy fell

within that meaning. See 13 CIT at 696-97. Thus, Two Hundred

Chests of Tea and Alexandria Int’l indicate that, in applying a

tariff term’s common and commercial meaning over its scientific

meaning, a court must construe the actual terms of the statute.

See 22 U.S. at 438-39; 13 CIT at 696-97.

Here, however, Plaintiff does not argue that its imports of

plywood are commonly and commercially known in the United States as

the tariff term "baboen." On the contrary, it is undisputed that

the term "baboen" is not commercially used in the Untied States.

See Def.’s Additional Statement ¶ 3; Pl.’s Response to Def.’s

Additional Statement ¶ 3. Instead, Plaintiff argues that the

common and commercial meaning of "baboen" in the United States is

virola and that its imports are commonly and commercially known in

the United States as "virola." Thus, Plaintiff defines "virola" in

the attempt to persuade this Court that its imports of plywood are

within the common and commercial meaning of "baboen." Plaintiff’s

conclusion does not logically follow from its premise.

Court No. 96-08-01911 Page 18

Again, in the absence of a contrary legislative intent, tariff

terms are not to be construed according to their scientific

meaning, where that meaning differs from the common or commercial

meaning. See, e.g., United States v. Sandoz Chemical Works, Inc.,

46 C.C.P.A. 115, 118 (1959); Alexandria Int’l, 13 CIT at 692.

Here, as discussed above, see supra pp. 11-12, the standard

dictionary definition of "baboen" is consistent with the scientific

definition. Thus, because the scientific definition does not

conflict with the common definition, there is no reason not to

construe "baboen" according to its technical definition, especially

here where the few standard dictionaries that actually define

"baboen" also define the term scientifically, and the term is not

generally used. Cf. C.J. Tower & Sons, 69 Cust. Ct. at 111.

Moreover, even if it could be argued that the common meaning

of "baboen" is not equivalent to its scientific meaning, there is

ample indication that Congress intended to define the term with

precision. In prescribing subheading 4412.11, HTSUS, Congress

chose to designate certain tropical woods by the pilot-names

recommended by the ATIBT. Each pilot-name, in turn, is listed in

the Explanatory Notes Annex to Chapter 44 with its corresponding

scientific and local names. No local name in the United States is

listed for "baboen." See Explanatory Notes at 643. That "baboen"

Court No. 96-08-01911 Page 19

is thus defined by the scientific names enumerated in the

Explanatory Notes Annex as corresponding with the term, see id.,

indicates that Congress intended to define the term

scientifically.10

(B) Commercial meaning

In the alternative, Plaintiff argues that "baboen" should be

interpreted according to a commercial designation. Again according

to Plaintiff, "the term ’Baboen’ is known as ’Virola’ in the United

States, and that commercial designation of ’Virola’ plywood in the

United States at the time of enactment of the HTSUS in 1989 or at

the time of the subject entries included the plywood with outer

plies of the ’near species’ including Sumuama, Faveira[,] and

Mangue in this case." Pl.’s Reply at 20.

"One who argues that a term in the tariff laws should not be

given its common or dictionary meaning must prove that ’there is a

different commercial meaning in existence which is definite,

uniform, and general throughout the trade.’" Rohm & Haas Co. v.

United States, 2 Fed. Cir. (T) 28, 29, 727 F.2d 1095, 1097

(1984)(quoting Moscahlades Bros. v. United States, 42 C.C.P.A. 78,

10

In addition, the available definitions of the local names

listed in the Annex for "baboen" are Virola surinamensis and/or

Virola koschnyi. See D.J. Mabberley, The Plant Book: A Portable

Dictionary of the Vascular Plants 75, 212, 734, 747-48 (1997).

Court No. 96-08-01911 Page 20

82 (1954)). "’Proof of commercial designation is a question of

fact to be established in each case.’" Id. (quoting S.G.B. Steel

Scaffolding & Shoring Co. v. United States, 82 Cust. Ct. 197, 206

(1979)).

Here, Plaintiff has offered the affidavit and deposition

testimony of numerous domestic industry witnesses. See Mem. in

Supp. of Pl.’s Mot. for SJ at 27-28 (citations omitted). In

attempting to prove a commercial meaning for "baboen," however,

Plaintiff once again does not define "baboen." Instead, Plaintiff

argues that the commercial designation of "baboen" in the United

States is "virola," and that the common meaning of "virola"

includes both the species of the botanical genus Virola and the

thirty-five near-species, which include the subject merchandise.

See id. at 6, 9-10, 27-28; Pl.’s Reply at 20-21. It is undisputed,

and Plaintiff concedes, however, that "baboen" is not a term used

commercially in the United States. See Def.’s Additional Statement

¶ 3; Pl.’s Response to Def.’s Additional Statement ¶ 3. Thus, the

term itself does not have a commercial meaning.

In proving commercial designation of a tariff term, one must

define the precise terms used in the statute. See Neuman &

Schwiers Co., Inc. v. United States, 24 C.C.P.A. 127, 132

(1936)("The rule is . . . that he who relies upon proving

Court No. 96-08-01911 Page 21

commercial designation to bring a certain product within a

statutory term, must take the term as it appears in the statute.");

Borneo Sumatra Trading Co., Inc. v. United States, 56 Cust. Ct.

166, 178 (1966)("If an article is not within the common meaning of

a tariff term, in order to bring it within that term by proof of

commercial designation, it must be shown that it was bought and

sold or known in the trade by the term contained in the statute.").

In Neuman & Schwiers, the predecessor to the Federal Circuit

held that the importer did not prove that its imports were within

the commercial meaning of the tariff term "sauces," where its

imports were bought and sold as "wine sauces," "Sauce Bercy," and

"Sauce Bordelais." See 24 C.C.P.A. at 132. Similarly, here,

Plaintiff has not shown that its imports of sumauma, faveira, and

mangue plywood were commercially known as "baboen." Therefore,

Plaintiff has not proven that its imports fall within a commercial

meaning of "baboen." Proof of commercial designation requires use

of the precise tariff terms at issue.

Plaintiff argues that the holding of "Neuman & Schwiers is

inapplicable to this case where the [Explanatory Note Annex to

Chapter 44] . . . clearly provides for local names different from

the pilot-name, the name appearing in the tariff." Pl.’s Reply at

18. The Court disagrees. Again, in prescribing heading 4412,

Court No. 96-08-01911 Page 22

HTSUS, Congress chose to designate certain tropical woods by the

pilot-names recommended by the ATIBT. Each pilot-name, in turn, is

listed in the Explanatory Notes Annex to Chapter 44 with its

corresponding scientific and local names, yet no U.S. local name is

listed for "baboen." See Explanatory Notes at 643. Therefore, it

cannot be presumed that Congress was aware of a United States local

name distinct from "baboen."

Thus, the Court’s only recourse is to construe the common

meaning of the tariff term "baboen" employing lexicographic aids

and the applicable Explanatory Notes. See Mita Copystar, 21 F.3d

at 1082. As demonstrated above, the lexicographic sources and the

Explanatory Notes alike indicate the intent to limit the definition

of "baboen" to species of the botanical genus Virola. See supra

pp. 9-14. Plaintiff’s imports of sumauma (Ceiba pentandra)

plywood, faveira (Parkia spp.) plywood, and mangue (T. rhoisoia)

plywood are not woods of the genus Virola. Therefore, Plaintiff’s

imports are not "baboen" within the meaning of subheading

4412.11.20, HTSUS.11

11

Plaintiff notes that the 1996 version of heading 4412,

HTSUS, replaced "baboen" with "virola." See Mem. in Supp. of

Pl.’s Mot. for SJ at 4, 22 n. 11. In arguing for a commercial

designation, Plaintiff contends that the change in terms

indicates a recognition by Congress that "baboen" and "virola"

were synonymous. See id. at 4; Pl.’s Reply at 20.

Court No. 96-08-01911 Page 23

(C) Commercial Practicability

Plywood "consist[s] of three or more sheets of wood glued and

pressed one on the other[.]" See Explanatory Notes at 632. "Each

component sheet is known as a ’ply[.]’" Id. Subheading 4412.11.20,

HTSUS, requires that the plywood consist of at least one outer ply

of the enumerated tropical woods, including baboen. Plaintiff

argues that "a requirement that[,] in order to be classified as

Baboen, at least one outer surface must be of the botanical genus

Reference to the 1996 HTSUS, however, does not support

Plaintiff’s case. As with the earlier HTSUS provisions, Congress

based the names of the tropical woods of heading 4412, HTSUS

(1996), on the pilot-names recommended by the ATIBT. See

Explanatory Notes (1996) at 671 ("For the purposes of . . . the

relevant subheadings of headings 44.03, 44.07, 44.08 and 44.12,

the names of the tropical woods are designated according to the

pilot-names recommended by the [ATIBT]."). Thus, the change in

language resulted from the ATIBT’s recommendation to change the

pilot-name designation.

"’A change in the language of a statute is generally

construed to import a change in meaning . . . .’" Bausch & Lomb,

148 F.3d at 1367 (quoting Ruth F. Sturm, Customs Laws and

Administration § 51.7 at 57 (1995)). The previous version of the

Explanatory Notes Annex to Chapter 44, HTSUS, defines "baboen"

scientifically as six species of the genus Virola. See

Explanatory Notes at 643 (1994). The 1996 version of the

Explanatory Notes Annex, meanwhile, defines "virola" as including

all species of the genus Virola, indicating that "virola" is a

broader term than "baboen." Thus, if anything, the replacement

of "virola" for the narrower term "baboen" in the 1996 version of

heading 4412, HTSUS, supports the conclusion that Customs

correctly refused to classify Plaintiff’s imports as containing

an outer ply of "baboen"; the change is only necessary because

the original term did not include the entire genus.

Court No. 96-08-01911 Page 24

Virola spp." would "not only [be] commercially unfeasible [sic],

but virtually impossible to administer." Mem. in Supp. of Pl.’s

Mot. for SJ at 25.

Plaintiff explains that, in making the subject plywood, the

Brazilian mills compress wood sheets according to similar color,

not according to species. See id. at 7 (citing Aff. of John Rego

¶ 9, Pl.’s Ex. 9). Therefore, it is "common to have one species on

the face, a different species on the back, and several other

species constituting the core" of a given sheet of plywood. Id.

Moreover, the Brazilian industry "invoice[s] based on the species

on the face ply of the plywood[,]" and a "mill will identify one

species for the entire shipment on the invoice, even though there

may be many different species on the faces of the individual

plywood panels contained in the entire shipment." Id. at 8 (citing

Aff. of John Rego ¶ 10, Pl.’s Ex. 9).

According to Plaintiff, Customs’ interpretation of subheading

4412.11.20, HTSUS, would be commercially infeasible because it

would require the "plywood mills [to] actually identify the

botanical species of each surface of each piece of plywood in a

shipment containing many crates of plywood in order to know how to

classify it." Id. at 25. Subheading 4412.11.20, HTSUS, however,

clearly states that plywood must contain "at least one outer ply of

Court No. 96-08-01911 Page 25

. . . Baboen" in order to be classified as such, and the Court

cannot locate any authority for the theory that the plain language

of the tariff schedule will not be given effect where it would

burden or inconvenience the producer. In any event, compliance

with the tariff provision does not appear commercially infeasible

in this case because the Brazilian mills keep an inventory of which

timber species they purchase. See Aff. of John Rego ¶ 8, Pl.’s Ex.

9. Under the circumstances of this case, Plaintiff’s commercial

impracticability argument fails to persuade the Court that Customs

incorrectly classified the subject merchandise.

Court No. 96-08-01911 Page 26

Conclusion

For the foregoing reasons, the Court holds that Customs

correctly classified Plaintiff’s imports of sumauma (Ceiba

pentandra) plywood, faveira (Parkia spp.) plywood, and mangue (T.

rhoisoia) plywood under subheading 4412.12.20, HTSUS, as a matter

of law. Accordingly, Plaintiff’s motion for summary judgment is

denied. In turn, Defendant’s cross-motion for summary judgment is

granted, and judgment is entered for Defendant.

Donald C. Pogue

Judge

Dated: December 21, 1999

New York, New York

United States Court of International Trade

RUSSELL STADELMAN & CO.,

Plaintiff,

v.

Before: Pogue, Judge

UNITED STATES,

Court No. 96-08-01911

Defendant,

Judgment

This action has been duly submitted for decision, and this

Court, after due deliberation, has rendered a decision herein; now,

in conformity with that decision, it is hereby

ORDERED that Customs properly classified Plaintiff’s imports

of sumauma (Ceiba pentandra) plywood, faveira (Parkia spp.)

plywood, and mangue (T. rhoisoia) plywood under subheading

4412.12.20, HTSUS, as a matter of law; and it is further

ORDERED that Plaintiff’s motion for summary judgment is

denied; and it is further

ORDERED that Defendant’s cross-motion for summary judgment is

granted, and final judgment is entered for Defendant.

Donald C. Pogue

Judge

Dated: December 21, 1999

New York, New York