CLA-2; CO:R:C:T 951832 ch

Carl D. Cammarata, Esquire
Law Offices of George R. Tuttle
Three Embarcadero Center
Suite 1160
San Francisco, California 94111

RE: HRL 089315, HRL 950606 affirmed; article not classifiable at four digit heading level, hence, classification at six or eight digit subheading level not permitted; plywood; flooring panels for cargo containers; wood; headings 4409 v. 4409.20.2560 v. 4412.

Dear Mr. Cammarata:

This is in response to your letter of May 14, 1992, requesting further reconsideration of HRL 089315, dated September 17, 1991, and HRL 950606, dated April 15, 1992, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), for flooring panels to be used for cargo containers.

FACTS:

The merchandise at issue consists of "sets" of plywood panels made from keruing, a nonconiferous wood (scientific name: Dipterocarpus spp.) The panels are made from nineteen veneer plies, each less than 6 mm thick, laminated together with a marine type adhesive. A "set" consists of three pair of panels. One pair measures 1,916 mm by 1,127 mm; the second, 2,050 mm by 1,127 mm; and the third, 1,480 mm by 1,127 mm. Each panel has a cut 37 mm wide by 6 mm deep along each edge. In addition, 1/4 inch chamfers have been cut into the corners along the bottom edges and ends of the panels. The flooring panels are used for cargo containers and will be imported from South Korea, Malaysia, Indonesia, and China.

In HRL 089315, we classified this merchandise under heading 4412, HTSUSA, as plywood. This finding was affirmed in HRL 950606. You have asked us to further reconsider these findings in light of Chapter 4, note 4, HTSUSA.

ISSUE:

Whether the subject merchandise is classified under subheading 4409.20.2560, HTSUSA, which provides for wood, nonconiferous, wood flooring, or heading 4412, which provides for plywood, veneered panels and similar laminated wood?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes. Where goods cannot be classified on the basis of GRI 1, the remaining GRI will be applied in order.

In your correspondence to this office of October 2, 1991 and May 14, 1992, you cite Chapter 44, note 4, HTSUSA, in support of your position that the subject merchandise is classifiable under heading 4409, HTSUSA. Chapter 44, note 4, provides that:

Products of heading No. 44.10, 44.11 or 44.12 may be worked to form the shapes provided for in respect of the goods of heading No. 44.09, curved, corrugated, perforated, cut or formed to shapes other than square or rectangular or submitted to any other operation provided it does not give them the character of articles of other headings. (Emphasis added).

You argue that the operations performed on the instant items gives them the character of wood flooring of heading 4409, HTSUSA, and that they should be so classified. In addition, you reach the conclusion that plywood products, which are the subject of heading 4412, HTSUSA, "may be taken out of heading 4412 to be classified under heading 4409." We disagree.

Heading 4409 appears, in pertinent part, as follows in the HTSUSA:

4409 Wood...

4409.20 Nonconiferous:

4409.20.25 Wood flooring

4409.20.2560 Other

The hierarchal arrangement of the headings and subheadings of the Schedule makes it evident that in order to classify an item at the six, eight or ten digit levels, the criteria at the four digit level must first be satisfied. In other words, the classification for "wood flooring" at the eight digit level (subheading 4409.20.25) is applicable only if the article can first be classified as "wood" at the four digit level (heading 4409).

In HRL 089315, we stated:

EN 44.09, 629, provides that heading 4409 covers "timber, particularly in the form of boards, planks, etc." The term "timber" refers to lumber, i.e., "the product of a saw mill not further manufactured than by sawing, resawing, passing lengthwise through a standard planing machine, crosscutting to length, and matching." U.S. Dep't of Agriculture, The Wood Handbook (1974), G- 6. In contrast, plywood is a glued wood panel made from thin layers of veneer. Id., G-7. Plywood has thus been further manufactured beyond the sawing, resawing, etc., that is characteristic of timber or lumber.

As a result of this finding we concluded that "plywood," which is the subject of heading 4412, was not "wood," which is the subject of heading 4409. In addition, we found that the subject merchandise met the criteria of "plywood," and not the criteria of "wood."

Your merchandise is a glued wood panel made from thin layers of veneer. Hence, it has been manufactured beyond the sawing, resawing, etc. that is characteristic of "timber" or "lumber." As the Explanatory Notes to heading 4409 indicate that this heading encompasses only "wood" made from "timber," the subject items are not classifiable under this heading. Since your merchandise cannot be classified as "wood" at the four digit level (heading 4409), it cannot be classified as "wood flooring" at the eight digit level (subheading 4409.20.25).

Furthermore, plywood products may not be taken out of heading 4412 and placed into heading 4409 unless the plywood is subjected to operations giving it the character of products encompassed by heading 4409; i.e. "timber" or "lumber." This transformation would involve reversing the manufacturing process needed to make plywood. Therefore, we find little support for your assertion that heading 4409 is an "invasive" heading in relation to heading 4412.

HRL 089315 and HRL 950606 were decided correctly on the basis of the tariff headings and the relevant legal notes, and are hereby affirmed.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 4412.12.2060, HTSUSA, as 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, not surface covered, or surface covered with a clear transparent material which does not obscure the grain, texture or markings of the face ply, other, other, other, not surface covered. The applicable rate of duty is 8 percent ad valorem.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director