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HQ 959548




February 5, 1997

CLA-2 RR:TC:TE 959548 RH

CATEGORY: CLASSIFICATION

TARIFF NOS: 4412.29.3060; 4412.22.3060; 4412.99.1000; 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

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