CIT Rules on Remand that the Term "Virola Plywood" Is Not a Commercial Designation in the U.S. Plywood Trade
In Timber Products Co. v. U.S., the Court of International Trade ruled on remand that certain Brazilian plywood made from wood of differing species is classifiable under HTS 4412.14.30 (1997, 8%), a residual provision for plywood, rather than under HTS 4412.13.40 (1997, GSP duty-free), which includes plywood made with at least one outer ply of tropical woods.
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Except for Virola, the species which identify the plywood are not listed separately as tropical woods in the HTS. On remand, the importer contends that the term "Virola plywood" has a commercial designation which encompasses many different woods, including the woods used in the outer ply of the Brazilian plywood, and that the GSP duty-free provision is the correct classification.
(The CIT's initial ruling had arrived at the same classification outcome. See ITT's Online Archives or 06/18/04 news, 04061835, for BP summary of the CIT's ruling.)
The Court of Appeals for the Federal Circuit had vacated and remanded the CIT's initial ruling, stating the CIT had improperly required Timber to present evidence of the commercial meaning of the term "Virola" from outside the plywood trade. The CAFC had directed the CIT to determine whether the plaintiff could prove a commercial designation for "Virola" as used in the plywood trade alone that would apply to the entries at issue. (See ITT's Online Archives or 04/03/06 news, 06040330, for BP summary of the CAFC's ruling.)
"Commercial Designation" Could Not be Proved Using Three-Pronged Test
The CIT states if one is to conclude there is a commercial designation that differs from the common meaning, the party proffering the commercial designation must show that the commercial use is general (extending over the entire U.S.), definite (certain of understanding), and uniform (the same everywhere in the U.S.).
By presenting several witnesses familiar with the Brazilian plywood trade, the plaintiff was able to satisfy the "general" prong of the test for establishing a commercial designation of "Virola plywood".
However, the CIT finds that the plaintiff failed to establish the "definite" prong of the test; in addition, the "uniform" part of the test was not met in a convincing manner.
Therefore, the CIT rules, among other things, that the importer has failed to demonstrate that "Virola plywood" has a commercial designation that is different from the common meaning of "Virola" - which is Virola spp. (only of the genus Virola).
CIT Slip Op. 06-162 (decided 11/08/06) available athttp://www.cit.uscourts.gov/slip_op/Slip_op06/06-162.pdf