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HQ 089032


September 17, 1991

CLA-2 CO:R:C:T 089032 CRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4412.12.2060

District Director of Customs
610 South Canal Street
Chicago, Illinois 60607

RE: Further review of protest no. 3901-90-100450; plywood panels used as flooring for cargo containers not classifiable as wood; EN 44.09; EN 44.12; timber.

Dear Mr. Parsons:

Protest No. 3901-90-100450 dated December 3, 1990, filed by George R. Tuttle, P.C. on behalf of protestant, Americontainer Ltd., has been referred to this office for further review.

FACTS:

The merchandise at issue consists of 180 "sets" of plywood flooring panels made from a nonconiferous species of wood known as apitong (scientific name: Dipterocarpus Grandiflorus). The panels consist of nineteen veneer plies laminated together with phenol-formaldehyde resin treated with chlordane. The individual plies are less than six millimeters thick. Each "set" consists of three pair of panels, or six 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. In addition, each panel has a cut 37 mm wide by 6 mm deep along each edge. The flooring panels are used for cargo containers and are imported from the Republic of Korea.

The floor panels were the subject of a ruling issued to Americontainer (Seattle DD 850215 dated March 21, 1990) and were classified in subheading 4412.12.2060, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

Subsequent to DD 850215, four shipments of plywood flooring were entered by Americontainer and were liquidated under heading 4412; however, the liquidations were protested on the basis that plywood flooring panels are properly classifiable in heading 4409.

ISSUE:

Whether the flooring panels in question are classifiable as wood or as plywood.

LAW AND ANALYSIS:

Two headings are relevant for the purposes of this ruling: heading 4409, HTSUSA, which provides for wood (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rebated, chamfered, V-jointed, beaded, molded, rounded or the like along any of its edges or faces, whether or not planed, sanded or finger-jointed; and heading 4412, HTSUSA, which provides for plywood, veneered panels and similar laminated wood.

The flooring panels are made from plywood, i.e., a product consisting of three or more sheets of wood glued and pressed one on the other so that the grains of successive layers at an angle. Harmonized Commodity Description and Coding System, Explanatory Notes, EN 44.12, 632. In addition, EN 44.12 provides that products of heading 4412 may be "curved, corrugated, 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." Id. at 632. The floor panels are made from plywood, a material that is specifically provided for in heading 4412 and which does not have the character of articles of any other heading.

Protestant contends, however, that plywood flooring is classifiable as wood of heading 4409, specifically in subheading 4409.20.2560, which provides for other wood flooring. In this regard protestant argues that the term "wood" in heading 4409 should be construed broadly so as to encompass all flooring, whether of wood, plywood, or laminated wood. We disagree.

EN 44.09, 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) at G-6. In contrast, plywood is a glued wood panel made from thin layers of veneer and is therefore further manufactured beyond that which is characteristic of timber or lumber.

In addition, the Explanatory Notes exclude certain articles from heading 4409. EN 44.09 provides:

The heading also covers strips and friezes for parquet flooring consisting of narrow pieces of boards, provided they have been continuously shaped, e.g., tongued and grooved. If they have not been worked beyond planing, sanding or end-jointing, e.g., finger- jointing, they fall in heading 44.07.

Strips of plywood or veneered wood for parquet flooring are also excluded (heading 44.12).

Thus the Explanatory Notes distinguish between wood strips and friezes for parquet flooring, and plywood strips and friezes, the former being classifiable in heading 4409, the latter in heading 4412. This reinforces the plain meaning of the terms of the headings, viz., that wood is classifiable in heading 4409, while plywood is classifiable in heading 4412. Consequently, plywood flooring is classifiable in heading 4412 pursuant to General Rule of Interpretation 1.

HOLDING:

The merchandise in question is classifiable in subheading 4412.12.2060, HTSUSA, under the provision for 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 or transparent material which does not obscure the grain, texture or markings of the face ply; other; other; other; not surface covered. The panels are dutiable at the rate of 8 percent ad valorem.

Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny the protest in full. A copy of this decision should be attached to the Form 19 Notice of Action.

Sincerely,


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