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NY N026645




May 9, 2008

CLA-2-44:OT:RR:NC:N2:230

CATEGORY: CLASSIFICATION

TARIFF NO.: 4412.32.3160

Ms. Ruth Rodriguez, Esq.
Gonzalez Rolon Valdespino & Rodriguez, L.L.C. Park Place Center, Suite 300
2911 Turtle Creek Boulevard
Dallas, TX 75219

RE: The tariff classification of plywood with a face of birch and a face of maple from China

Dear Ms. Rodriguez:

In your letter dated April 7, 2008, on behalf of Samling USA, LLC, you requested a tariff classification ruling for plywood to be imported from China.

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. The samples are being retained by this office.

It is your position that the subject plywood has both a face ply of maple and a face ply of birch because both outer plies are of the same grade “B”. Therefore, the subject plywood should be classified under subheading 4412.32.0540, HTSUS, which provides for plywood with a face ply of birch (Betula spp.), not surface covered. You believe that there is no specific tariff provision for maple, and therefore, the birch classification provides the best and most specific description for the birch/maple plywood.

In support of your position, you cite Ruling NY H81484 dated June 8, 2001. The plywood discussed in Ruling H81484 had one outer ply of birch and one outer ply of Chinese ash. The outer plies had a grade range from “C” up to “B,” and the plywood was used to make bed rails. The background information on this case is no longer available. We find that neither the grade of the plywood nor its use direct us to a clear classification conclusion at this point in time. Furthermore, the ruling does not discuss the General Rules of Interpretation supporting the conclusion. We find nothing in Ruling H81484 to believe that the classification of the plywood discussed in this ruling is necessarily contradictory or clearly wrong. However, the ruling does not establish a precedent for the classification of similar products.

You also cite ruling NY R02554 dated October 6, 2005. This ruling discusses the term “face ply.” It states that in the plywood trade the term “face ply” is generally understood to be the side or outer surface which has the highest grade or better grade. By reference, we incorporate that discussion in the present ruling.

The classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) is governed by 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. In the event that goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require the remaining GRIs will be applied, in the order of their appearance.

The competing provisions for the subject plywood are subheadings 4412.32.05 and 4412.32.31, HTSUS. Subheading 4412.32.05, HTSUS, provides for the following:

Other plywood consisting solely of sheets of wood, each ply not exceeding 6 mm in thickness (con.): 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:
With a face ply of birch (Betula spp.)

Subheading 4412.32.31, HTSUS, provides for the following:

Other plywood consisting solely of sheets of wood, each ply not exceeding 6 mm in thickness (con.): 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

GRI 6, HTSUS, provides in pertinent part, that classification of goods in subheadings of the same heading shall be according to the terms of those subheadings and any related subheading notes and, by appropriate substitution of terms, according to GRIs 1 through 5, on the understanding that only subheadings at the same level are comparable. Inasmuch as the subject plywood is prima facie described in two different subheadings, it cannot be classified according to GRI 1.

When goods cannot be classified by applying GRI 1 and if the headings and legal notes do not otherwise require, the remaining GRIs are applied.

GRI 3 states as follows:

When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. (Emphasis added.)

The subject plywood consists of various wood veneers, specifically, maple, birch, poplar, and pine. For tariff classification purposes, the outer surfaces control, and they consist of maple and birch. In this case, both outer surfaces can qualify to be considered faces. However, neither of the two competing tariff provisions fully describes the subject plywood, that is, plywood with two faces – birch and maple. Consequently, GRI 3 (a) is not applicable. Furthermore, it is clear that the subject plywood does not have an essential character, and thus, GRI 3(b) is not applicable.

GRI 3 (c) states as follows:

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.

In this case, the subheading which appears last, of the two that merit equal consideration, is 4412.32.31, HTSUS.

In ruling N017878 dated November 1, 2007, CBP had occasion to rule on a similar “two face” plywood. In this case, the plywood had one outer surface of birch and the other outer surface of poplar. Both outer plies were stated to be of “C” grade, and thus, both plies were suitable to be regarded as faces. CBP ruled that the birch/poplar plywood was classifiable under subheading 4412.32.3160, HTSUS, according to GRI 3 (c).

The applicable subheading for the two faces (birch/maple) plywood will be 4412.32.3160, Harmonized Tariff Schedule of the United States (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 . . . : Other: Other: Other: Not surface covered. The 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,

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