CLA-2 OT:RR:CTF:TCM H044702 KSH
Ms. Ruth Rodriguez, Esq. Gonzalez Rolon Valdespino & Rodriguez, L.L.C. Park Place Center, Suite 300
2911 Turtle Creek Boulevard
Dallas, TX 75219
RE: Request for reconsideration of NY N027039, dated May 21, 2008; plywood with a face of birch and a face of maple.
Dear Ms. Rodriguez:
This is in response to your request for reconsideration, on behalf of your client Samling USA, LLC, of New York Ruling Letter (NY) N026645, dated May 9, 2008, as it pertains to the tariff classification of plywood with a face ply of birch and a face ply of maple under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
In NY N026645, the merchandise was described as follows:
The subject plywood will be imported in panels measuring 1,220 mm wide by 2,440 mm long and a thickness of 5.2 mm, 12 mm, and 18 mm. The panels consist of veneer layers laminated together so that the grains of the layers run at a ninety degree angle to each other. The core plies are a mixture of poplar and pine veneers with a thickness range of 1.3 to 2.0 mm. One outer ply is made of birch (Betula spp) 0.5 mm thick, and the other outer ply is made of maple (Acer saccharum) also 0.5 mm thick. Both outer plies are stated to be of grade "B" as described under § 3.3.4 of the American National Standard for Hardwood and Decorative Plywood (ANSI/HPVA HP-1-2004). Both outer surfaces have not been finished. You state that the subject plywood is usable in the construction of furniture, cabinetry, wall paneling, and other decorative purposes. Three plywood samples (12" x 12"), one for each thickness, were submitted.
ISSUE:
Whether the plywood is classified under subheading 4412.32.31, HTSUS, as plywood with a face ply other than birch, Spanish cedar or walnut or subheading 4412.32.05, HTSUS, as plywood with a face ply of birch.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The provisions at issue are as follows:
4412 Plywood, veneered panels and similar laminated wood:
Other plywood consisting solely of sheets of wood (other than bamboo), 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 or transparent material which does not obscure the grain, texture or markings of the face ply:
4412.32.05 With a face ply of birch (Betula spp.)
* * * *
4412.32.31 Other.
There is no dispute that the plywood is classified in heading 4412, HTSUS, nor that it is classified in subheading 4412.32, HTSUS. You dispute the eight-digit national tariff rate applicable to the instant merchandise. GRI 6 provides that the classification of goods at the subheading level "shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules [GRIs 1 - 5], on the understanding that only subheadings at the same level are comparable.
The term "face ply" is not defined in the HTSUS. Further, the term is not mentioned in the Explanatory Notes to the Harmonized Commodity Description and Coding System. When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common or commercial meaning. See Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). "To ascertain the common meaning of a term, a court may consult 'dictionaries, scientific authorities, and other reliable information sources' and 'lexicographic and other materials.'" Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271, 69 C.C.P.A. 128 (C.C.P.A. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)).
The International Wood Products Association defines the "face" in the
IHPA Procurement Standard for Imported Hardwood Plywood as: The better side of any plywood panel in which the outer plies are of
different veneer grades. Also either side of a panel in which there is no difference in the veneer grade of the outer plies. The APA -The Engineered Wood Association (Panel Handbook & Grade
Glossary) defines the term "face" as: The highest grade side of any veneer-faced panel that has outer plies of
different veneer grades. Also, either side of a panel where grading rules draw no distinction between faces. For example, the face of an A – C panel is the side with the A - grade outer ply. Both sides of an A – A or B – B panel are referred to as faces.
Based on the commercial meaning of “face”, CBP has stated “the term ‘face ply’ means the side or outer surface which has the highest grade or better grade.” See NY R02554, dated October 6, 2005.
You contend that the plywood is classifiable under GRI 1. Specifically, you maintain that subheading 4412.32.05, HTSUS, is an eo nomine provision that covers all forms of plywood with a face ply of birch and does not contain any words of limitation to exclude plywood which also has a face ply of maple. Additionally, you interpret the term “other” in subheading 4412.32.31, HTSUS, to mean “without a face ply of birch, Spanish cedar or walnut.” As such, you contend the plywood cannot be classified therein because it has a face ply of birch. Finally, you proffer that subheading 4412.32.31, HTSUS, is a basket provision which cannot be considered for classification since subheading 4412.32.05, HTSUS, specifically provides for the merchandise.
An eo nomine designation is "one which describes [a] commodity by a specific name, usually one well known to commerce." Casio, Inc. v United States, 73 F.3d 1095, 1097 (Fed. Cir. 1996) (alteration in original) (quoting Black's Law Dictionary 535 (6th ed. 1990)); see also Chevron Chem. Co. v. United States, 23 CIT 500, 505, 59 F. Supp. 2d 1361, 1367 (1999) (stating that "an eo nomine provision that names an article without terms of limitation, absent evidence of a contrary legislative intent, is deemed to include all forms of the article.") (citation omitted).
There is no dispute that the face ply of birch is classified in subheading 4412.32.05, HTSUS. However, you do not contend that maple is a form of birch. To the contrary, maple is of the species Acer whereas birch is of the species Betula. Consequently, the plywood is not completely described by subheading 4412.32.05, HTSUS. Since, the subject plywood is prima facie described in two different subheadings, it cannot be classified according to GRI 1. See Conair Corporation v. United States, 29 C.I.T. 888 (2005) (Because each component, when considered individually, is prima facie classifiable under a different HTSUS heading, reliance on GRI 1 is inappropriate.) Further a determination cannot be made under GRI 3(a) as neither subheading completely describes the plywood, nor GRI 3(b), as neither face ply imparts the essential character. Thus, resort must be made to GRI 3(c).
GRI 3(c) provides:
(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
The subheading that occurs last in numerical order is subheading 4412.32.31, HTSUS. Therefore, the plywood is classified in this subheading.
HOLDING:
Pursuant to GRI 3(c), the plywood is classified in heading 4412, HTSUS, specifically subheading 4412.32.31, HTSUS, which provides for: “Plywood, veneered panels and similar laminated wood: Other 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 or transparent material which does not obscure the grain, texture or markings of the face ply: Other….” The general, column one rate of duty is 8 percent ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N026645, dated May 9, 2008, is affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division