CLA-2: OT:RR:CTF:TCM H039043 KSH
.
Port Director
U.S. Customs and Border Protection
Port of Long Beach
301 E. Ocean Blvd. Suite 1400 Long Beach, CA 90802
RE: Application for Further Review of Protest No. 2704-08-102339; “LVL Engineered Door Parts”
Dear Port Director: This is in reply to your correspondence forwarding an Application for Further Review (AFR) of Protest No. 2704-08-102339, filed by counsel on behalf of Composite Technology International. The protest is against U.S. Customs and Border Protection’s (CBP) classification and liquidation of twenty entries of “LVL engineered door parts” under heading 4421 of the Harmonized Tariff Schedule of the United States (HTSUS). In reaching our decision herein, consideration was also given to protestant’s additional submissions to this office, dated May 1, and June 10, 2009.
FACTS:
The merchandise at issue is identified as “LVL engineered door parts”, which protestant characterizes as door stiles or rails. It is composed of multiple poplar wood veneers laminated together with their grains parallel, which have been glued to a face ply of pine lumber board. The veneers are approximately less than 0.5 mm thick and the lumber board measures between 3/8” (9.52mm) and 11/16” (17.5mm) thick. The merchandise is produced in dimensions measuring 40.64 x 47.63 x 2020.87 mm or 40.64 x 38.1 x 2427.30 mm. The door stiles are unfinished and rebated with caps of pine or polyvinyl chloride (PVC).
Between July 29, 2007, and January 18, 2008, protestant entered the merchandise subject to this protest in heading 9403, HTSUS, which provides for: “Other furniture and parts thereof.” The merchandise was liquidated on April 11, 2008, in heading 4421, HTSUS, which provides for “Other articles of wood.”
On July 9, 2008, protestant filed a Protest and Application for Further Review against the classification and liquidation of the merchandise in heading 4421, HTSUS. Protestant now asserts that the merchandise is classified in heading 4412, HTSUS, which provides for: “Plywood, veneered panels and similar laminated wood.” The protest was timely filed pursuant to 19 U.S.C. §1514 (c)(3).
ISSUE: Whether the door stiles are classified in heading 4412, HTSUS, as similar laminated wood or in heading 4421, HTSUS, as other articles of wood.
LAW AND ANALYSIS: Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed within 180 days of liquidation. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, §2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further review is warranted pursuant to 19 CFR §§174.24(a) and 174.25 because the protest is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise. Specifically, protestant alleges that the liquidation is inconsistent with Headquarters Ruling Letters (HQ) 968306, dated February 6, 2007, and HQ 960469, dated October 24, 1997, in which laminated veneer lumber was classified in heading 4412, HTSUS.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The 2007/2008 HTSUS headings under consideration are as follows:
4412 Plywood, veneered panels and similar laminated wood
4421 Other articles of wood
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to heading 4412, HTSUS, provide in relevant part:
Veneered panels, which are panels consisting of a thin veneer of wood affixed to a base, usually of inferior wood, by glueing under pressure.
* * *
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.
* * *
The EN to heading 4421, HTSUS, provides in relevant part:
This heading covers all articles of wood manufactured by turning or by any other method, or of wood marquetry or inlaid wood, other than those specified or included in the preceding headings and other than articles of a kind classified elsewhere irrespective of their constituent material (see, for example, Chapter Note 1).
It also covers wooden parts of the articles specified or included in the preceding headings, other than those of heading 44.16.
* * *
Protestant characterizes the door stiles as laminated veneer lumber (LVL) with a “pine cap.” We note that some entries have a PVC cap. Insofar as protestant believes the door stiles to be LVL, protestant argues that the door stiles are specifically provided for and are well within the scope of heading 4412, HTSUS. In support protestant cites to Headquarters Ruling Letters (HQ) 968306, dated February 6, 2007; HQ 960469, dated October 24, 1997 and; HQ 968307, dated February 7, 2007, in which CBP classified LVL in heading 4412, HTSUS.
Protestant argues that the classification of its merchandise is analogous to that at issue in New York Ruling Letter (NY) F82089, dated February 14, 2000, in which die-formed molded wood fiberboard panels used as facings on interior doors were classified in heading 4411, HTSUS, as fiberboard because they could not be used directly in a building and did not have the character of a good of heading 4421, HTSUS.
Protestant also analogizes the classification of its merchandise to that at issue in Millenium Lumber Distribution Ltd. v. United States , Fed. Cir. Slip. Op. 07-56, dated April 16, 2007, aff’d Millenium Lumber Distribution Ltd. v. United States 558 F.3d 1326 (Fed. Cir. 2009). In Millenium, the Court of Appeals for the Federal Circuit held that lumber of various lengths with a 90 degree square-cut end and an angle cut between 67.4 degrees and 80.5 degrees was classifiable in heading 4407, HTSUS. In so doing the court rejected classification in heading 4421, HTSUS, finding that the scope of heading 4407, HTSUS, includes all sawn, chipped or cut wood and timber of any length but of a thickness exceeding 6mm. Id. Heading 4421, HTSUS, only provides for articles of wood that are not “specified or included in the preceeding headings.” See E.N. 44.21.
Protestant argues that based on CBP’s findings in NY N014319, heading 4412 encompasses goods which are constructed with a face ply of wood exceeding 6mm in thickness. However, in fact, CBP classified among other things two samples of two-ply wood flooring with a face ply less than 6mm in thickness (sample one was 0.6mm in thickness and sample two was 2mm in thickness) laminated to lumber exceeding 6mm in thickness with an aluminum backing in heading 4412, HTSUS. The merchandise at issue in NY N014319 were veneered panels. See E.N. 44.12.
LVL of heading 4412, HTSUS, only consists of laminated veneers or of veneered or plywood panels which have a face ply less than 6mm in thickness but may have a core or base of lumber. See heading 4408, HTSUS, (“sheets for veneering…of a thickness not exceeding 6mm”). However, in the present case the merchandise has two distinct components, LVL of heading 4412, HTSUS and face ply of lumber between 9.52 mm and 17.5 mm thick (heading 4407, HTSUS). The two components are assembled to produce a new structural wood article used in the construction of a door. As such, it is not completely described in heading 4412, HTSUS, at GRI 1. In addition, because the article is not fiberboard, it is not provided for in heading 4411, HTSUS and NY F82089 is not on point.
Unlike the articles in Millenium and NY F82089, the merchandise is not elsewhere described or included in Chapter 44, HTSUS. The instant door stiles are classified in heading 4421, HTSUS. See NY B80908, dated February 6, 1997 (concerning the classification, in relevant part, of finger-jointed pine door stiles worked on the ends), and NY A82523, dated May 9, 1996 (concerning the classification, in relevant part, of hinge stiles, lock stiles and door rails with dadoed ends or with holes and indentations). Finally, because the merchandise is not an article of heading 4412, HTSUS, we will not address your arguments regarding the applicability of Faus Group, Inc. v. United States 575 F. Supp. 2d 1388 (CIT 2008) reversed Faus Group, Inc. v. United States 581 F.3d 1369 (CAFC 2009) and the applicability of Note 4 to Chapter 44, HTSUS.
HOLDING:
In accordance with GRI 1, the “LVL engineered door parts” are classified in heading 4421, HTSUS. They are provided for in subheading 4421.90.97, HTSUS, which provides for: “Other articles of wood: Other: Other: Other.” The column one general rate of duty in effect at the time of entry was 3.3% 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. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. No later than 60 days from the date of this letter, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP homepage on the
World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division