CLA-2 RR:CR:TE 960361 jb
Area Director
U.S. Customs Service
40 S. Gay Street
Baltimore, Md. 21202
RE: Decision on Application for Further Review of Protest No.1303-96-100460; Plywood Flooring
Dear Sir:
This is a decision on an application for further review of a protest timely filed by the Borinsky, Ramsey, & Cook, LLC, on behalf of Trimex, Inc, against your decision regarding the proper classification under the Harmonized Tariff Schedule of the United States (HTSUS) for plywood flooring. The entry at issue was liquidated on August 30, 1996. Samples were submitted to this office for review.
FACTS:
The merchandise at issue, referred to as “Trevofloor”, consists of a five ply and seven ply plywood which is 5/16 inches thick by three inches wide by 48 inches long. Each ply composing the plywood is under 6mm thick. The subject boards have been tongued and grooved and face finished with a transparent polyurethane. Each plywood board has a face made of one continuous veneer across its width.
We note that the subject samples are referenced by name, both on the commercial invoice and on the samples themselves, as “Brazilian Cherry”, “American Maple” and “American Oak”. When the subject samples were examined by the Customs Laboratory however, the results indicated that these names are misleading since these particular samples are actually composed of a combination of Brazilian hardwood species, and not one pure species as the names might indicate. As such, the botanical names for these samples, also indicated on the commercial invoice, is a more accurate description of these products.
The Protestant claims that in the past the imported merchandise was classified under a duty free provision of heading 4409, HTSUS, in the applicable provisions for nonconiferous wood flooring. This classification was challenged by Customs however, during the last shipments of merchandise for the calendar year 1995, when the merchandise was classified under heading 4412, HTSUS, in the applicable provision for plywood. The Protestant contests this classification and claims that the subject merchandise should have been reclassified under heading 4418, HTSUS, as panels for parquet wood flooring. In support of this claim the Protestant makes reference to Customs Corporte Counsel Classification Opinion [Customs Cooperation Council] (hereinafter, “Opinion”), Document No. 34.153, July 29, 1987.
ISSUE:
What is the proper classification for the subject merchandise?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.
There are two headings which merit consideration with respect to the classification of this merchandise. As in all cases, it is the explicit terms of the headings and the accompanying Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) which will control the appropriate classification determination. Heading 4412, HTSUS, provides for, among other things, plywood, veneered panels and similar laminated wood. The EN to heading 4412, HTSUS state, in pertinent part:
This heading covers:
(1) 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”.
* * *
The products of this heading remain classified herein whether or not they have been worked to form the shapes provided for in respect of the goods of heading 44.09, curved, corrugated, perforated, cut or formed to shapes other than square or rectangular and whether or not they have been surface or edge worked, or coated or covered (e.g., with textile fabric, plastics, paint, paper or metal) or submitted to any other operation, provided these operations do not thereby give such products the essential character of articles of other headings.
Heading 4418, HTSUS, provides for, among other things, parquet panels. The EN to heading 4418, HTSUS, state, in pertinent part:
This heading also covers parquet strips, etc., assembled into panels or tiles, with or without borders, including parquet panels or tiles consisting of parquet strips assembled on a support of one or more layers of wood. These panels or tiles may be tongued and grooved at the edges to facilitate assembly.
In the opinion of the Protestant the terms of heading 4418, HTSUS, may be applied to the subject merchandise. The Protestant believes that this classification is not only appropriate but also consistent with the referenced Opinion, which Protestant believes classified virtually identical merchandise in heading 4418, HTSUS. The Opinion stated that rectangular mosaic panels used for parquet flooring consisting of wooden strips must display top layers having more than one strip of wood. The “Product Description” in that referenced Opinion classified merchandise consisting of a three ply plywood sheet, tongue and grooved, and whose face, across the width, was composed of multiple veneer strips. The “Product Description” included an illustration which clearly showed the construction of that merchandise and stated the following:
The laminated construction consists of three layers that are glued together under pressure. The bottom layer is made of pine or spruce veneer. The intermediate layer consists of pine turned crosswise to reduce expansion or contraction.
Critical to the classification of this merchandise is the fundamental understanding of the distinction in the construction between plywood of heading 4412, HTSUS, and parquet panels of heading 4418, HTSUS. In its imported condition, the subject merchandise consists of a strip of plywood with a single veneer face. This construction is encompassed within the terms of plywood of heading 4412, HTSUS. Heading 4418, HTSUS, provides for parquet panels including panels having a face of multiple veneer strips which are assembled on a support of one or more layers of wood. Consistent with the terms of heading 4418, HTSUS, the merchandise which was the subject of the referenced Opinion consisted of a panel composed of multiple veneer strips assembled on a support of several layers of wood with the surface layers displaying a mosaic design of two or more strips. It is the Protestant’s opinion that:
Trimex’s wood tiles possess the same multiple ply cross laminated structure as the product envisioned in Classification Opinion 34.153. Furthermore, Trimex’s merchandise possesses a mosaic pattern that meets the definition set forth by the Customs Service in
the above opinion. Trimex’s wood tiles are of a rectangular shape, continuously tongued and grooved, with surface layers displaying a mosaic design of two or more strips assembled on a support of one or more layers of wood.
We disagree with the Protestant’s comparison of the two products. In its condition as imported the subject merchandise in no way displays a mosaic design of two or more strips across the width of the face of the wood, similar to the product in the referenced Opinion. This is not possible given that as imported, the merchandise consists of plywood displaying only a single wood veneer strip on the face. The fact that this mosaic design of two or more strips may be apparent once the individual strips are imported and assembled as a floor, is not relevant to the classification of this product in the condition as imported. The mosaic design must be evident on the face layer of the plywood, in the condition as imported.
As the subject merchandise has only one veneer strip across the width of the face, it does not satisfy the terms of heading 4418, HTSUS, and is clearly distinguishable from the merchandise which was the subject of the referenced Opinion. Furthermore, we make reference to the exclusionary note in the EN to heading 4409, HTSUS, which states that “Strips of plywood or veneered wood for parquet flooring are also excluded (heading 44.12).
Accordingly, the subject merchandise was correctly classified in heading 4412, HTSUS.
HOLDING:
The protest should be denied in full. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division