United States Court of Appeals for the Federal Circuit 

2007-1136 

TIMBER PRODUCTS CO., 

Plaintiff-Appellant, 

v. 

UNITED STATES 

Defendant-Appellee. 

Beth C. Ring, Sandler, Travis & Rosenberg, P.A., of New York, New York, argued for 

plaintiff-appellant. With her on the brief were Gilbert Lee Sandler, Edward Joffe, and Arthur 

Purcell. 

Mikki Graves Walser, Attorney, International Trade Field Office, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of New York, New 

York, argued for defendant-appellee. With her on the brief were Peter D. Keisler, Assistant 

Attorney General, Jeanne E. Davidson, Director, and Barbara S. Williams, Attorney in 

Charge. Of counsel on the brief was Michael W. Heydrich, Office of the Assistant Chief 

Counsel, United States Customs and Border Protection, of New York, New York. 

Appealed from: United States Court of International Trade 

Judge Donald C. Pogue 
United States Court of Appeals for the Federal Circuit 

 

 

2007-1136 

TIMBER PRODUCTS CO., 

 Plaintiff-Appellant, 

v. 

UNITED STATES, 

 Defendant-Appellee. 

 

Appeal from the United States Court of International Trade in case no. 01-00216, Judge 

Donald C. Pogue. 

__________________________

DECIDED: January 24, 2008 

__________________________

Before SCHALL, Circuit Judge, PLAGER, Senior Circuit Judge, and MOORE, Circuit 

Judge. 

SCHALL, Circuit Judge. 

This case involves the tariff classification of plywood imported into the United 

States from Brazil by Timber Products Co. (“Timber”). Timber appeals the final decision 

of the United States Court of International Trade, following a trial, that the United States 

Bureau of Customs and Border Protection (“Customs”) correctly classified Timber’s 
plywood entries under subheading 4412.14.30 of the Harmonized Tariff Schedule of the 

United States (“HTSUS”).1

 Timber Prods. Co. v. United States, 462 F. Supp. 2d 1342, 

1363 (Ct. Int’l Trade 2006) (“Timber III”). That subheading imposes a duty of 8% ad 

valorem. Harmonized Tariff Schedule, HTSUS 4412.14.30. Timber had urged 

classification under HTSUS subheading 4412.13.40, which covers “Plywood . . . [w]ith 

at least one outer ply of the following tropical woods: . . . ‘Virola.’”2

 Entries under that 

subheading are duty-free. Harmonized Tariff Schedule, HTSUS 4412.13.40. 

It is undisputed that, under HTSUS 4412.13.40, the common meaning of “Virola” 

is limited to the botanical genus Virola spp. Before the Court of International Trade, 

Timber sought to establish that “Virola” has a broader “commercial designation” within 

the plywood trade that encompasses many different woods, including the “Sumauma,” 

“Faveira,” “Amesclao,” “Brazilian White,” “White Virola (Virola spp.)” and “Edaiply 

 1

 Subheading 4412.14.30, HTSUS (1997), reads: 

4412 Plywood, veneered panels and similar laminated wood: 

Plywood consisting solely of sheets of wood, each ply not exceeding 6 

mm in thickness: 

 Other, with at least one outer ply of nonconiferous wood: 

4412.14.30 Other 

2

 Subheading 4412.13.40, HTSUS (1997), reads: 

4412 Plywood, veneered panels and similar laminated wood: 

Plywood consisting solely of sheets of wood, each ply not exceeding 6 

mm in thickness: 

 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, Okoume, Obeche, 

Acajou d’Afriquee, Sapelli, Virola, Mahogany, Palissandre de Para, 

Palissandre de Rio or Palissandre de Rose. 

(emphasis added). 

2007-1136 2
Faveria” woods listed on its entry invoices.3

 Timber thus sought to establish a 

commercial designation for “Virola” that would encompass each of the species listed on 

its invoices, thereby qualifying its plywood for duty-free treatment. In sustaining 

Customs’ classification of Timber’s plywood in Timber III, the Court of International 

Trade held that Timber had failed to establish a commercial designation for “Virola.” We 

affirm. 

BACKGROUND 

I 

Plywood consists of three or more wooden sheets pressed together, with each 

sheet referred to as a “ply.” One outer ply is called the “face” ply; the other outer ply is 

called the “backing”; the middle ply or plies comprise the “core.” Although these 

component plies may present different species of wood, plywood is identified based on 

the species found on its “face” ply. 

Between July 1996 and December 1997, Timber imported the plywood at issue 

into the United States from Brazil. However, due to the particular nature of the 

manufacturing and exporting processes in Brazil, in which various species of wood are 

first mixed together and then sorted by quality rather than species, the exact botanical 

identity of the face ply of Timber’s imported plywood was unknown. Thus, the names 

appearing on the entry documents for Timber’s plywood imports did not necessarily 

reflect the botanical species on the face plies, since Timber could not determine this 

information. Timber’s shipping and entry documents, though, listed the subject 

 3

 As discussed below, “commercial designation” refers to a definite, uniform, 

and general commercial meaning for a term that is so widespread throughout the 

relevant industry that, for tariff purposes, it effectively supersedes the common meaning 

of the term. 

2007-1136 3
merchandise as “Sumauma (C. Pentanda) 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.).” 

“Virola” refers to a botanical genus consisting of approximately 45 to 60 different 

species of tropical hardwood. The term “Virola spp.” denotes all species of the genus 

Virola. “Virola” is also a commercial term used within the plywood trade. See Timber 

III, 462 F. Supp. 2d at 1347. The terms “Sumauma,” “Faveira,” “Edaiply Faveira,” 

“Amesclao,” and “Brazilian White” are each trade or common terms for various species 

of tropical hardwood from botanical genera other than “Virola.” Id. 

When Timber’s plywood was imported, plywood with an outer ply of tropical 

hardwood (such as “Virola”) was classified under HTSUS subheading 4412.13.40 and 

therefore duty-free. Id. In contrast, plywood with an outer ply of “other” nonconiferous 

wood was classified under HTSUS subheading 4412.14.30 and subject to a duty of 8% 

ad valorem. Id. 

Timber sought to classify its merchandise as “Virola” under subheading 

4412.13.40 in order to receive duty-free treatment under that provision. Timber argued 

to Customs that there was an established commercial designation for the term “Virola” 

in subheading 4412.13.40 that extended beyond the botanical genus “Virola” and that 

encompassed various types of wood, including the types of wood listed on its entries. 

More specifically, Timber argued that 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. Customs, 

2007-1136 4
however, disagreed and liquidated the plywood under subheading 4412.14.30, the 

residual provision that requires an 8% duty ad valorem. Id.

II 

After Customs denied protests filed by Timber in accordance with 19 U.S.C. 

§ 1514, Timber filed suit in the Court of International Trade. In due course, ruling on the 

parties’ cross-motions for summary judgment, the court held that Customs had correctly 

classified the merchandise at issue under subheading 4412.14.30 rather than 

subheading 4412.13.40. The court did so after concluding that Timber had failed to 

adequately prove its asserted commercial designation for Virola. Timber Prods. Co. v. 

United States, 341 F. Supp. 2d 1241, 1251 (Ct. Int’l Trade 2004) (“Timber I”). In 

reaching that conclusion, the court ruled that Timber was required to prove a 

commercial meaning for Virola that applied throughout every trade contemplated by the 

HTSUS. In other words, Timber had to demonstrate that its proposed commercial 

designation applied not only throughout the plywood industry, but also throughout every 

other trade that imported “Virola.” Id. at 1248-49. 

Timber appealed the decision in Timber I to this court. On appeal, we held that 

the Court of International Trade had erred in its commercial designation analysis by 

requiring evidence from beyond the plywood industry. We stated that the “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 

merchandise to which the tariff term might apply.” Timber Prods. v. United States, 417 

F.3d 1198, 1202 (Fed. Cir. 2005) (“Timber II”). Accordingly, we vacated the decision of 

the Court of International Trade and remanded the case to the court with the instruction 

2007-1136 5
that it consider whether Timber had proven a commercial designation of “Virola” within 

the plywood trade alone, and whether the subject merchandise was within that 

commercial designation. Id. at 1203. 

III 

A 

The law relating to commercial designation is well settled. The proper 

interpretation of a tariff classification provision is a question of law. Mita Copystar Am. 

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 presumed to 

be its common meaning in the absence of evidence to the contrary. Rohm & Haas Co. 

v. United States, 727 F.2d 1095, 1097 (Fed. Cir. 1984). One who argues that a tariff 

term should not be given its common meaning “must prove that ‘there is a different 

commercial meaning in existence which is definite, uniform, and general throughout the 

trade.’” Id. (quoting Moscahlades Bros. v. United States, 42 CCPA 78, 82 (1954)). “The 

concept of commercial designation ‘was intended to apply to cases where the trade 

designation is so universal and well understood that the Congress, and all the trade, are 

supposed to have been fully acquainted with the practice at the time the law was 

enacted.’” Id. (quoting Jas. Akeroyd & Co. v. United States, 15 Ct. Cust. 440, 443 

(1928)). Proof of commercial designation is a question of fact that must be established 

in each case. Id. Finally, if the statute indicates a clear Congressional intent, this 

unambiguous intent must always prevail over any commercial designation. See United

States v. Stone & Downer, 16 Ct. Cust. 82, 85 (1928). The burden of proof rests on the 

party claiming the commercial designation, which must be established by a 

2007-1136 6
preponderance of the evidence. See United States v. M.J. Brandenstein & Co., 17 

CCPA 480, 485 (1930). 

B 

On remand, and following a trial, the Court of International Trade held that 

Timber had failed to prove its commercial designation for “Virola.” Timber III, 462 

F. Supp. 2d at 1363. Although it found no clear legislative intent that would preclude a 

commercial designation analysis, the court determined that Timber had failed to prove 

its proposed commercial designation for “Virola” because the testimonial and 

documentary evidence revealed a commercial meaning for the term that was “general,” 

but neither “uniform” nor “definite.” 

Preliminarily, the court observed that it was “not entirely clear what definition of 

‘Virola plywood’ [Timber] wishes to adopt.” Timber III, 462 F. Supp. 2d at 1354 n.13. 

Noting what had been argued in Timber I, the court stated that it was unclear whether 

Timber was urging that the commercial meaning for “Virola plywood” encompassed “a 

group of approximately thirty-five ‘near species’ of tropical hardwood with similar 

physical properties,” or a broader definition encompassing “hardwood plywood made 

from mixed tropical species from Brazil.” Id. In any event, the court determined, Timber 

had failed to establish that, in the plywood trade, “Virola” was a commercial designation 

for either a group of thirty-five near species of tropical hardwood or a product that was a 

mixture of such tropical hardwood species. Id. at 1363. 

First, the court concluded that Timber had failed to show that its proposed 

commercial designation was uniform. The court reached this conclusion based upon 

what it viewed as inconsistencies between the testimony of witnesses presented by 

2007-1136 7
Timber. Some witnesses testified that “Virola” represented “a mixture of tropical 

hardwood species from Brazil,” while others maintained that “Virola” referred to 

“approximately thirty-five different species, including botanical Virola.” Id. at 1355. 

Likewise, some witnesses emphasized that “Virola” plywood came from Brazil, while 

others stated that it also came from places throughout South America other than Brazil. 

Id. Various marketing materials further contradicted the witness testimony, the court 

found. Id. at 1356-57. 

Similarly, the court concluded that Timber had failed to show that its proposed 

commercial designation for “Virola” was definite. The court determined that Timber’s 

witnesses could not agree on the component species properly included within the 

commercial meaning of “Virola.” Id. at 1358. Rather, witnesses “could only agree on a 

few of the species that are included in the purported commercial designation of Virola.” 

Id. Moreover, the court viewed these witnesses as identifying “very different numbers 

for the constituent species[,] from ‘five or six,’ to twenty to thirty, to thirty-five.” Id. 

Because, in the Court of International Trade’s view, contradictory evidence 

rendered Timber’s proposed commercial designation neither uniform nor definite, the 

court affirmed Customs’ classification of Timber’s plywood. The court therefore 

sustained Customs’ denial of Timber’s protest. 

DISCUSSION 

I 

We have jurisdiction over Timber’s appeal pursuant to 28 U.S.C. § 1295(a)(5). 

Following a trial, we review the Court of International Trade’s findings of fact for clear 

error. Ford Motor Co. v. United States, 286 F.3d 1335, 1340 (Fed. Cir. 2002). A finding 

2007-1136 8
is clearly erroneous when, although there is evidence to support it, the reviewing court 

is left with a “definite and firm conviction that a mistake has been committed.” United 

States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). We review the Court of 

International Trade’s legal conclusions de novo. Texport Oil Co. v. United States, 185 

F.3d 1291, 1294 (Fed. Cir. 1999). “Proof of commercial designation is a question of fact 

reviewed under the clearly erroneous standard.” Russell Stadelman & Co. v. United 

States, 242 F.3d 1044, 1048 (Fed. Cir. 2001) (citing Rohm & Haas, 727 F.2d at 1097). 

II 

 Before turning to the arguments Timber makes on appeal, we address a 

preliminary contention by the government. As just seen, the Court of International 

Trade concluded that the HTSUS contained no clear Congressional intent with respect 

to the meaning of the term Virola so as to preclude a commercial designation analysis. 

The government urges to the contrary, however. According to the government, there 

was a clear Congressional intent to limit the meaning of “Virola” to its common botanical 

meaning, which encompasses “any wood of a tree of the genus ‘virola,’ but not the 

wood of trees of other genuses.” Timber I, 341 F. Supp. 2d at 1247. We reject the 

government’s argument on this point. We are bound by our decision in Timber II as law 

of the case. See Arizona v. California, 460 U.S. 605, 608 (1983) (noting that the law of 

the case doctrine “posits that when a court decides upon a rule of law, that decision 

should continue to govern the same issues in subsequent stages in the same case.”). 

In Timber II, we necessarily concluded that there was no clear Congressional intent that 

would preclude a commercial designation analysis with respect to the term “Virola.” 

2007-1136 9
Otherwise, there would have been no reason for a remand to the Court of International 

Trade for such an analysis, which was undertaken in Timber III. 

 III 

 We turn now to Timber’s arguments on appeal. Timber contends that the Court 

of International Trade erred in finding its proposed commercial designation of “Virola” 

neither uniform nor definite. It contends that, on both points, the court made clearly 

erroneous findings of fact and committed errors of law. 

 A 

 In order for a commercial designation to be uniform, it must be the same 

throughout the trade. As seen, the Court of International Trade concluded that Timber’s 

proffered commercial designation of “Virola”—a term referring to either a group of 

tropical hardwood species with similar properties or a term referring to a product that is 

a mixture of such species—was not uniform because of inconsistencies in the testimony 

of Timber’s witnesses. Timber contends that the court clearly erred in finding such 

inconsistencies because its analysis was based on what Timber terms “two fallacious 

premises.” First, according to Timber, it never said “Virola” was a commercial 

designation for approximately thirty-five species of trees. Instead, Timber asserts, it 

consistently stated that the term referred to a mixture of tropical species from Brazil. 

Second, Timber argues that, in any event, a definition encompassing approximately 

thirty-five species is not inconsistent with one encompassing a mixture of such species. 

As we understand it, Timber is arguing that there are no inconsistencies between the 

two separate definitions identified by the Court of International Trade, one of which 

emphasizes that “Virola” represents a mixture of tropical hardwood species from Brazil, 

2007-1136 10
while the other indicates that “Virola” refers to approximately thirty-five different species, 

including botanical “Virola.” In essence, Timber argues that these definitions are not 

inconsistent because they are not contradictory. 

We reject Timber’s arguments. In the first place, we see no error in the Court of 

International Trade’s statement that Timber had taken the position that “Virola” was a 

commercial designation for approximately thirty-five species of trees. Indeed, we said 

precisely that in Timber II. See 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.”). Most importantly, however, the testimony of Timber’s 

witnesses was, as the Court of International Trade found, inconsistent. As the court 

indicated in its opinion, there was a “disparity between the various definitions provided” 

by Timber’s witnesses, “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, including botanical Virola.” Timber III, 

462 F. Supp. 2d at 1355. Furthermore, the court observed, one witness testified that 

Virola plywood could in fact come “from places other than Brazil.” Id. In addition, the 

court examined various marketing materials and other printed publications which 

contradicted Timber’s assertion that “Virola” plywood was known throughout the 

plywood industry as a mixture of hardwood species from Brazil. Id. at 1356-57. In 

short, the testimonial and documentary evidence demonstrates that Timber was unable 

to establish a commercial designation for “Virola” that was the same throughout the 

plywood trade. 

2007-1136 11
 Neither do we think that the Court of International Trade viewed the uniformity 

issue through the wrong legal prism. We reject Timber’s contention that the positions it 

took in Timber I and Timber III had to contradict each other in order to be inconsistent. 

In our view, contradiction is a sufficient, but not necessary, condition for finding 

inconsistency. Accepting Timber’s contention would undermine the commercial 

designation analysis by encouraging importers to advance excessively broad, vague, or 

ambiguous definitions simply to avoid contradiction. We think that, in order to establish 

a commercial designation, a party must do more than simply show the absence of 

contradiction between different terms. It must prove a widely understood commercial 

meaning that applies everywhere throughout the relevant industry. In this case, Timber 

failed to carry that burden. 

 B 

 In order for a commercial designation to be definite, it must be certain of 

understanding. As seen, the Court of International Trade found that Timber’s witnesses 

could not agree on the component species properly included within the proposed 

commercial meaning of “Virola,” with witnesses identifying a disparate number of 

component species ranging from as few as five or six to as many as thirty-five. 

Timber III, 462 F. Supp. 2d at 1358. Timber contends that the court’s finding was based 

upon an incorrect standard of proof. According to Timber, the court erred by focusing 

on the component species of Virola rather than the final plywood product, which, it says, 

was defined as a mixture. 

 Leaving aside for the moment the uncertainty the Court of International Trade 

identified in Timber’s differing positions in Timber I and Timber III, we do not agree that 

2007-1136 12
the Court of International Trade applied an incorrect standard of proof. Assuming 

arguendo that “Virola” plywood is a product characterized by a mixture of tropical 

species, the ability, or lack thereof, to identify the species of woods within that mixture is 

probative as to whether Timber’s proffered commercial meaning was “certain of 

understanding” and commonly understood throughout the entire plywood industry. 

Thus, although an exact agreement among every witness may have been unnecessary, 

the Court of International Trade reasonably required a general consensus as to the 

approximate number of species properly included within the commercial meaning of 

“Virola” plywood.4

 It found no such general consensus after examining the testimonial 

and documentary evidence presented at trial. 

 The evidence fully supports the finding of the Court of International Trade that 

Timber failed to establish a definite commercial designation. To give just one example, 

John Rego, who was President of Gulfstream Traders, Ltd., which represented the 

 4

 Timber argues that the decision in United States v. Georgia Pulp & Paper 

Manufacturing Co., 3 CCPA 410 (1912), supports the proposition that a definite 

commercial designation does not require agreement as to the entire universe of 

individual components. That case is inapposite, however. In Georgia Pulp, the subject 

merchandise consisted of various woodworking machines; the question was whether 

they could be properly classified for tariff purposes as “machine tools.” 3 CCPA at 410. 

The government sought to establish a commercial designation for “machine tools” that 

included only metalworking machines and excluded woodworking machines such as the 

merchandise at issue. Id. at 411. Although witnesses disagreed as to whether certain 

metalworking machines were machine tools, “they 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.” Id. at 413. Thus, all of the witnesses in fact agreed that the 

commercial meaning of “machine tool” included only metalworking machines and 

excluded the imported woodworking machines. Because the witnesses uniformly 

agreed that the commercial designation excluded the imported merchandise, their 

disagreement over whether specific metalworking machines were within the meaning of 

“machine tool” was irrelevant. Here, however, because Timber sought to establish a 

commercial designation for “Virola” that included various species of wood, the 

witnesses’ disagreements as to the component species covered by the term “Virola” 

was relevant to whether the proposed commercial designation for “Virola” was definite. 

2007-1136 13
largest Brazilian mills that manufactured and sold “Virola plywood” to the United States, 

testified that “the composition of the groups of woods comprising ‘Virola plywood’ 

changed over time.” Timber III, 462 F. Supp. 2d at 1348, 1357. Likewise, the court 

found that “witnesses could only agree on a few of the species that are included in the 

purported commercial designation,” and that those witnesses identified a disparate 

range of component species from as low as five or six to as many as thirty-five. Id. at 

1358. These discrepancies, combined with the fact that Timber offered different 

definitions throughout the litigation, supports the Court of International Trade’s finding 

that the commercial designation of “Virola” that Timber offered was not certain of 

understanding throughout the entire plywood industry. Accordingly, the Court of 

International Trade’s determination that Timber’s commercial designation of “Virola” was 

not definite was not clearly erroneous. 

IV 

 Timber’s final argument on appeal is that even if “Virola” is limited to its common 

botanical meaning, Entry number 334-1066732-4, which was invoiced as “White Virola 

(Virola spp.),” should nonetheless have been liquidated duty-free under subheading 

4412.13.40. In other words, because this entry was invoiced according to the common 

botanical meaning of Virola, it necessarily qualifies for duty-free treatment under 

subheading 4412.13.40 of the HTSUS. To hold otherwise, Timber argues, would render 

that statutory provision a nullity, because even merchandise invoiced according to the 

common meaning of Virola would not come within the meaning of that provision. We 

reject this argument. It is not the invoice but the goods that determine classification. 

Timber has been unable to verify the actual contents of its shipments due to the mixing 

2007-1136 14
2007-1136 15

of species during the plywood manufacturing process employed by Brazilian mills. 

Because of this failure of proof, the Court of International Trade did not err in sustaining 

Customs’ liquidation of this entry. 

CONCLUSION 

For the foregoing reasons, the decision of the Court of International Trade 

sustaining Customs’ classification of Timber’s entries of plywood products is affirmed. 

AFFIRMED