CLA-2-44:OT:RR:NC:N2:230
Stephen J. Leahy, Esq.
Law Office of Stephen J. Leahy
175 Derby Street, Suite 9
Hingham, MA 02043
RE: The tariff classification of maple faced plywood flooring from Canada
Dear Mr. Leahy:
In your letter dated April 23, 2008, on behalf of Metropolitan Hardwood Floors, Inc., you requested a tariff classification ruling. The sample that you submitted is being returned as requested.
The product in question is plywood flooring (Engineered Hardwood Flooring) consisting of 10 veneer plies laminated together. The face ply consists of a 3 mm thick maple veneer with its grain running in the same direction as the ply below it. The other nine (9) veneers are made of birch (Betula spp.) approximately 1.24 mm thick; the grains of successive plies are at an angle (right angle). The submitted representative sample measures approximately 14 mm in thickness, 3-1/2” wide x 11-1/4” long. Three grooves have been cut on the back of the flooring strips, referred to as “relief cuts to reduce rigidity.” In the condition as imported, the flooring panels are tongued and grooved on the edges and the ends. You state that the flooring panels have been face finished with various clear coatings, which are fully described in your letter, that do not obscure the grain, texture or markings of the face ply.
You explain that the Canadian manufacturer of the wood flooring in question purchases 9-ply birch plywood (approximately 11 mm thick x 1240 mm x 1240 mm or 1840 mm x 1240 mm). The Canadian company then uses the birch plywood to manufacture the subject wood flooring by sawing the birch plywood into strips, laminating a maple veneer to one surface, tongue and grooving the wood strips on the edges and ends, sawing relief cuts on the back, and face finishing each plywood flooring strip with various clear materials.
You propose that the subject plywood flooring panels be considered veneered panels with a face ply of maple and a backing of plywood. Thus, you conclude that the subject plywood flooring should be classified under subheading 4412.99.51, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for other veneered panels and similar laminated wood (other than plywood). You claim that the subject panels do not have a plywood construction because with the addition of the top maple ply, the grains are not perpendicular and because the maple veneer creates a product with an even number of layers. You cite for support the Explanatory Notes to heading 44.12 and the case of Boen Hardwood Flooring, Inc. v. United States, CAFC 03-1287 (2004).
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and General Rules of Interpretation. While neither legally binding nor dispositive of classification issues, the ENs provide commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
The ENs to heading 44.12 state as follows:
Plywood consisting of three or more sheets of wood glued and pressed one on 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”. (Emphasis added)
The definition of plywood provided by the ENs to heading 44.12 is self-evident and clearly allows for construction variation by the use of the terms “generally disposed” and “usually formed”. Plywood is a complex engineered product. As such, it is designed to have many specific characteristics to produce specialty products.
The CAFC in the case of Boen, supra, cites a number of plywood definitions found in the commercial literature and lexicographic sources. One such source is the Voluntary Product Standards PS 1-95 (“VPS”). The VPS at section
2.36 states as follows:
2.36 Plywood – Plywood is a flat panel built up of sheets of veneer called plies, united under pressure by a bonding agent to create a panel with an adhesive bond between plies as strong as or stronger than, the wood. Plywood is constructed of an odd number of layers with grain of adjacent layers perpendicular. Layers consist of a single ply or two or more plies laminated with parallel grain direction. (Emphasis added.)
We can clearly see that a layer may consist of more than one ply with their grain running parallel. The flooring panels in question incorporate a face layer consisting of two plies with parallel grain.
The Boen’s Court further states as follows:
None of the definitions of “plywood” cited above, or those found elsewhere, however, are nearly so restrictive. The court’s interpretation of “plywood,” which imports the requirement that each layer be composed of a single, continuous sheet of wood, ignores the reality of the product and defies the accepted commercial meaning of the term. (Emphasis added.)
The subject flooring panels have the grains of successive layers disposed at an angle (as per samples), and have an odd number of layers (but an even number of plies). The construction of these flooring panels may have variations but achieves the fundamental goal of plywood – greater strength, equalized strains, and minimized dimensional change and warping of the panel.
CBP neither believes that the definition of plywood should be reinvented nor that it was the intent of the Congress to introduce ambiguity to a tariff provision where none existed. The subject flooring panels are well within the ENs definition of the term plywood and also, well within the commercial definition of the term. (See Boen, supra.)
Classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) is in accordance with the General Rules of Interpretation (“GRIs”), taken in order. GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRIs will be applied, in the order of their appearance.
In the present case, there are two competing provisions: heading 4412, HTSUS, which provides for plywood, veneered panels and similar laminated wood and heading 4418, HTSUS, which provides for builders’ joinery and carpentry of wood, including cellular wood panels and assembled flooring panels.
Additional U.S. Note 4 states as follows:
Heading 4418 includes—
(b) multi-layer assembled flooring panels having a face ply 4 mm or more in thickness.
The subject flooring panels have a face ply under 4 mm thick. Thus, they are not classifiable under heading 4418, HTSUS, but rather, they are classifiable under heading 4412, HTSUS.
For the reasons discussed above, we do not agree that the subject flooring panels are classified under subheading 4412.99.51, HTSUS, which provides for other veneered panels and similar laminated wood (other than plywood). We find that the flooring panels in question have a plywood construction and are so classified under heading 4412, HTSUS.
The applicable subheading for the 14 mm thick engineered hardwood flooring, tongue-and-grooved on the edges and ends, consisting of ten (10) veneer plies, with a face ply of a 3 mm thick maple finished with various coats of clear materials will be 4412.32.3170, Harmonized Tariff Schedule of the United States (HTSUS), which provides for 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 rate of duty will be 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/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Paul Garretto at 646-733-3035.
Sincerely,
Robert B. Swierupski
Director,
National Commodity
Specialist Division