CLA-2 RR:TC:TE 959548 RH
4412.99.1500
Port Director
U.S. Customs Service
150 N. Royal Street
Room 3004
Mobile, AL 36602
Re: Protest No. 1901-96-100024; virola blockboard; pararm pine
blockboard; plywood; similar laminated wood; subheading
4412.29.3060; subheading 44 12.22.3060; subheading
4412.99.1000; subheading 4412.99.1500
Dear Sir:
This is in response to the Application for Further Review of
Protest Number 1901-96-100024, filed by M.G. Maher & Co., Inc.,
on behalf of the importer, Gaiennie Lumber Co. ("Protestant"),
contesting the classification of white virola and parana pine
wood, which you forwarded to our office for review on July 18,
1996.
The Application for Further Review of Protest was timely filed and
is proper pursuant to section 174.24(b) of the Customs Regulations
(19 CFR 174.24(b)).
The Protestant also submitted a letter directly to our office
seeking a classification ruling on the merchandise in question.
Customs will not consider an Application for Further Review of
Protest if there is a pending application for an administrative
decision on the same claims with the same category of
merchandise. 19 CFR 174.25(b)(2)(i). Thus, we will not issue a
tariff classification ruling on the merchandise as the protest of
the classification is already pending, but we will, nevertheless,
consider the Protestant's arguments set forth in that letter as
pan of this ruling on the Application for Further Review of
Protest.
At our request, the Protestant submitted two small blocks of wood
marked "Sample A" and "Sample B."
FACTS:
The merchandise under protest is white virola wood and parana
pine wood entered into the United States in 1995 and 1996, under
nine separate entries. The Protestant filed eight entries in
1995, in which it classified the white virola wood under
subheading 4412.29.5000 of the Harmonized Tariff Schedule of the
United Annotated (HTSUSA) ("other"), and the parana pine under
subheading 4412.99.9090, HTSUSA ("other"). In 1996, the
Protestant filed one entry in which it classified the white
virola wood under subheading 4412.22.5000, HTSUSA ("other"), and
the parana pine under subheading 4412.99.9590, HTSUSA ("other").
Based on an analysis of the wood, Customs determined that both
species of wood should have been classified as plywood. Customs
issued a Notice of Action (CF 29) on January 8, 1996, and
February 29, 1996, informing the Protestant that the nine entries
were reclassified, as follows:
Wood Year Subheading
Virola 1995 4412.29.3060, HTSUSA
Virola 1996 4412.22.3060, HTSUSA
Those provisions provide for plywood with at least one outer
ply of nonconiferous wood, not surface covered.
Parana Pine 1995 4412.99.1000, HTSUSA
Parana Pine 1996 4412.99.1500, HTSUSA
Those provisions provide for plywood, not surface covered,
with a face ply of parana pine (araucada angustifolia).
Customs liquidated the entries on February 2, 1996, and March 15,
1996, under the tariff provisions set forth above.
ISSUE: Whether the wood under protest is "plywood" or "other
laminated wood?"
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
classification shall be determined according to the terms of the
headings, and any relative section or chapter notes. Heading 4412
provides for "Plywood, veneered panels and similar laminated
wood."
The EN to the Harmonized Commodity Description and Coding System
(Harmonized System) constitute the official interpretation of the
scope and content of the nomenclature at the international level.
They represent the considered views of classification experts of
the Harmonized System Committee. While not treated as
dispositive, the EN are to be given considerable weight in
Customs interpretation of the HTSUSA. It has, therefore, been the
practice of the Customs Service to consult the terms of the EN
when interpreting the HTSUSA. The EN for heading 4412 state that
the heading covers:
(1) Plywood consisting of three or more sheets of wood glued and
pressed one to the other and generally disposed so that the
grains of successive layers are at an angle; this gives the
panels greater strength and, by compensating shrinkage,
reduces warping. Each component sheet is known as a "ply"
and plywood is usually formed of an odd number of plies, the
middle ply being called the "core."
(3) Similar laminated wood. This group can be divided into two
categories:
- Blockboard, laminboard and battenboard, in which the
core is thick and composed of blocks, laths or battens
of wood glued together and surfaced with the outer
plies. Panels of this kind are very rigid and strong
and can be used without framing or backing.
- Panels in which the wooden core is replaced by other
materials such as a layer or layers of particle board,
fibreboard, wood waste glued together, asbestos or
cork.
A Customs laboratory analyzed a sample of the parana pine wood. A
sample of the virola wood was not analyzed because it has the
same construction as the parana pine wood, and the species of the
wood in not in issue. Customs Laboratory Report Number 10853
describes the sample as follows:
The sample, a piece of 5-ply plywood, is not surface covered
and has a blockboard core. The sample has outer plies of
coniferous wood and a total thickness of 18.66 millimeters.
The core has a thickness of 12.43 millimeters. In our
opinion, the sample has outer plies of Araucaria
Angustifolia (Parana pine).
Although Protestant agrees with the Customs laboratory
description of the merchandise ("5 ply-plywood"), it argues that
the wood is classifiable as "similar laminated wood" and not as
"plywood," as defined in the EN. However, the EN are generally
not intended for application beyond the international 6-digit
level. See, Headquarters Ruling Letter (HQ) 088326, dated April
1, 1994.
In this case, both the Customs classification and the claimed
classification of each species of wood are under the same 4-digit
and 6-digit international levels. Therefore, the issue presented
is which provisions at the United States 8-digit level are
applicable. The competing United States 8-digit subheadings are
"Plywood" and "Other." Accordingly, it must be determined,
applying GRI 1, whether the two types of wood at issue are
"Plywood" in the trade and commerce of the United States.
In determining the common meaning of a tariff term, it is a basic
principle of customs law that the court may consult lexicographic
definitions, written authorities and the testimony of expert
witnesses. Borneo Sumatra Trading Co., v. United States, 311 F.
Supp. 326 (1970); 64 Cust. Ct. 185; Cust. Dec. 3980. In that
case, the court examined the earliest American book published on
plywood, which defined it as "a combination of several plies or
pieces of veneer glued together usually so that the grain of any
one ply is at right angles to the adjacent ply or plies."
Laminated, wood was defined as "constructions in which two or
more layers of wood are fastened together with the grain of all
plies or laminations parallel."
The standard definition of plywood issued by the American Society
for Testing and Materials, ASTM D 1038-52 (Reapproved 1964), is
"a cross-banded assembly made of layers of veneer or veneer in
combination with a lumber core or plies joined with an adhesive.
Two types of plywood are recognized, namely: (1) veneer plywood,
and (2) lumber core plywood."
Another reference book by F.P. Kollman, Edward W. Kuenzi and
Alfred J. Stamm, Principles of Wood Science and Technology,
states that plywood covers not only boards consisting of cross
banded glued veneers but also corestock. Core plywood includes
battenboard, blockboard and laminboard.
We also consulted a third source, American National Standard for
hardwood and decorative plywood, which illustrates typical
plywood constructions. Protestant's sample "A" is like the
plywood drawing described as "Five-ply lumber core construction."
Sample "B" is illustrated and defined as "Multi-ply veneer core
construction."
Based on these sources and the expertise of Customs National
Import Specialists, it is our position that plywood may be
composed of various constructions, one of which is a lumber core
construction, provided it possesses the distinguishing
characteristics of three or more sheets of wood glued and pressed
one to the other and generally disposed so that the grains of
successive layers are at an angle. On the other hand, wood
composed of such a construction, except that the grains of all
the plies or laminations are parallel, is not plywood.
HOLDING:
In the instant protest, the white virola wood and parana pine
wood are plywood, and were properly classified under the
provisions set forth in the Notice of Action dated January 8,
1996 and February 29, 1996. Accordingly, the protest should be
denied in full.
In accordance with section 3A(11)(b) of Customs Directive Number
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be attached to the Customs Form
19, Notice of Action, and furnished to the Protestant no later
than 60 days from the date of this letter. Any reliquidation of
the entry in accordance with the decision must be accomplished
prior to mailing of the decision. Sixty days from the date of the
decision (On that date) the Office of Regulations and Rulings
will take steps to make the decision available to Customs
personnel via the Customs Ruling Module in ACS and to the public
via the Diskette Subscription Service, Freedom of Information
Act, and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division