OT:RR:CTF:CPMM H301465 CKG
Ms. Laura Fraedrich
Jones Day
51 Louisiana Ave. NW
Washington, DC. 20001-.2113
RE: Affirmation of NY N265544; classification of composite decking panels
Dear Ms. Fraedrich:
This is in response to your letter, dated September 17, 2018, on behalf of Cali Bamboo, LLC, requesting the reconsideration of New York Ruling Letter (NY) N265544, dated July 1, 2015, concerning the classification of composite decking panels. In NY N265544, CBP classified decking panels made of a composite material of plastic and bamboo fiber in heading 3916, HTSUS. You request that CBP revoke NY N265544 and reclassify the merchandise at issue therein in heading 3925, HTSUS, as builder’s ware of plastic, not elsewhere specified or included, or in heading 3918, HTSUS, as floor coverings of plastic. For the reasons set forth below, we affirm our conclusion in NY N265544 that the instant merchandise is correctly classified in heading 3916, HTSUS.
FACTS:
In NY N265544, the instant merchandise was described as follows:
The decking panel is extruded as a profile shape with a uniform cross section throughout its length, and features a ridged outer surface. The profile is constructed of high density recycled polyethylene filled with reclaimed bamboo wood fibers. Seven 11mm holes run the length of the panel core. The decking panel has a 6mm-deep groove cut along both edges for the hidden fastening system used to secure the panels in place. You indicate that the decking panels are straight cut on their ends. The imported board measures:
5 ½” (W), x 7/8” (D) x 96” (L).
In your request for reconsideration, you further specify that the products at issue comprise approximately 60% bamboo fibers, 30% HDPE plastic, and 10% additives for coupling, coloring, and ultraviolet ray protection. The above raw materials are dried, mixed, and exposed to heat and pressure to melt the HDPE plastic, covering the bamboo fibers and resulting in a grain-like raw material. The raw materials are then loaded into a production machine for extrusion. Following extrusion, the product is loaded into a sanding machine to remove a plastic film which still remains on the product after extrusion. After sanding, the product is loaded into a brushing machine, which utilizes several steel brush rolls to smooth the edges and corners of the product. This brushing keeps the sides, edges, and corners round and smooth, which makes the decking safer. The product is then cut to the requested length, manually cleaned using an air gun and sanding paper, inspected for quality control, and packaged.
ISSUE:
Whether the instant composite decking panels are classified in heading 3916, HTSUS, as profile shapes, whether or not surface-worked but not otherwise worked, of plastics; heading 3918, HTSUS, as floor coverings of plastic; or heading 3925, HTSUS, as builder’s ware of plastics, not elsewhere specified or included.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of
Interpretation (GRI). 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 2 through 6 may then be applied in order.
The HTSUS provisions at issue are as follows:
3916: Monofilament of which any cross-sectional dimension exceeds 1 mm, rods, sticks and
profile shapes, whether or not surface-worked but not otherwise worked, of plastics:
3918: Floor coverings of plastics, whether or not self-adhesive, in rolls or in the form of tiles;
wall or ceiling coverings of plastics, as defined in note 9 to this chapter:
3925: Builders' ware of plastics, not elsewhere specified or included:
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not 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 these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
The Explanatory Note to heading 39.16 provides, in pertinent part, as follows:
This heading covers monofilament of which any cross sectional dimension exceeds 1 mm, rods, sticks, and profile shapes. These are obtained in the length in a single operation (generally extrusion), and they have a constant or repetitive cross section, from one end to the other. Hollow profile shapes have a cross section different from that of tubes, pipes and hoses of heading 39.17 (see Note 8 to this Chapter).
The heading also includes such products which have been merely cut to a length exceeding the maximum cross sectional dimension or surface worked (polished, matt finished, etc.), but not otherwise worked. Profile shapes with an adhesive surface, used for sealing window frames, are classified in this heading.
Products which have been cut down to the point where the length does not exceed the maximum cross sectional dimension, or which have been otherwise worked (drilled, milled, assembled by glueing or sewing, etc.) are excluded from this heading. They are classified as articles in headings 39.18 to 39.26 unless they are more specifically covered by some other heading in the Nomenclature.
EN 39.18 provides, in pertinent part:
The first part of the heading covers plastics of the types normally used as floor coverings, in rolls or in the form of tiles. It should be noted that self adhesive floor coverings are classified in this heading.
The second part of the heading, the scope of which is defined in Note 9 to this Chapter, covers wall or ceiling coverings of plastics, including those with a textile backing. Wallpaper or similar wall coverings of paper coated or covered with plastics are excluded (heading 48.14).
* * * * *
Heading 3916 provides for, inter alia, rods and other profile shapes of plastics, whether or not surface worked but not otherwise worked. The instant merchandise consists of extruded profile shapes of plastic and bamboo fiber, for use as outdoor decking panels. After extrusion, the panels are sanded, brushed and cut to length, processes which Cali Bamboo, LLC argues make the product “otherwise worked” for the purposes of heading 3916, and therefore preclude classification in that heading. We disagree.
First, we note that CBP has interpreted heading 3916 to include products which were sanded after extrusion in heading 3916, in NY 881533, dated January 25, 1993. In the context of other HTSUS provisions, sanding is specifically cited as an example of surface working for wood products in the EN to heading 4409. In contrast, operations which go beyond surface working include, for example, punching or drilling with holes for nails or screws (NY H82183, dated June 19, 2001, NY 879190, dated October 26, 1992), welding (NY K87587, dated July 16, 2004), or beveling (NY N026987, dated May 15, 2008).
With respect to whether cutting to length renders a product “otherwise worked” for the purposes of heading 3916, HTSUS, EN 3916 states that the heading also includes such products which have been merely cut to a length exceeding the maximum cross sectional dimension, and CBP has consistently held that cutting to length is not considered to be further working. For example, in NY 881533, NY N047200, dated January 9, 2009, and NY A85211, dated July 1, 1996, CBP held that extruded, cut to length profile shapes of plastic were properly classified in heading 3916. In NY N047200, CBP specifically noted that the PVC extrusions at issue therein which were merely cut to length would remain classified in heading 3916, whereas those which had been further worked by mitering at the ends were beyond the scope of heading 3916 and were classified as other plastic articles in heading 3926.
Hence we find that sanding and brushing fall within the scope of “surface-worked”, and that neither sanding, brushing nor cutting to length render a product “otherwise worked” for the purposes of heading 3916.
The EN to heading 3916 further specifies that products of that heading “are obtained in the length in a single operation (generally extrusion).” Cali Bamboo, LLC argues that this language requires that the entire product must be produced in a single operation, and therefore that the various processes involved in combining the bamboo fibers and polyethylene into a composite material prior to extrusion preclude classification in heading 3916. However, it is self-evident that, by definition, any plastic or composite material will involve more than one process or operation to produce—all plastics are created via a number of chemical reactions, and plastics are frequently combined with other materials or additives to impart specific properties to the product (e.g., UV, microbial, and flame resistance, a wood-like appearance, etc.). None of this precludes classification in heading 3916, because the phrase “single operation” in EN 3916 refers to the shaping process—i.e., whether the final shape is produced only via molding or extrusion. See e.g., HQ H195875, dated September 12, 2013; NY N248889, dated January 16, 2014. That the instant product involves combining plastic and wood fiber prior to extrusion is therefore irrelevant to classification in heading 3916.
The instant products are thus included in heading 3916, and are therefore precluded from classification in heading 3925. As the instant decking panels do not “cover” existing flooring but are instead installed as a complete flooring for outdoor decks, they are further not provided for in heading 3918, as floor coverings of plastic.
Finally, we find that the rulings you cite in support of your argument are not applicable to the instant merchandise. In NY N104625, dated June 2, 2010, decking panels made of composite plastic and wood fiber materials were classified in heading 3925, HTSUS, instead of heading 3916, HTSUS, because they had an additional plastic coating applied after extrusion. Unlike sanding or brushing, application of an additional coating changes the properties of the extruded product, and therefore goes beyond “surface-working”. The panels in NY N104625 are therefore distinguishable from the instant merchandise. In NY N248889, CBP considered two scenarios, where flexible sealing members were incorporated onto extruded decking boards either via co-extrusion or via secondary operation conducted after extrusion. When the flexible seal was incorporated in a secondary operation after the original extrusion of the profile, CBP determined that this went beyond surface-working, and classified the product in heading 3925, HTSUS. This conclusion is consistent with our conclusion in NY N265544 and our affirmation thereof; the addition of a flexible seal in a secondary operation constitutes "further working” while the sanding and brushing are merely surface working. Finally, in NY N285109, dated April 11, 2017, CBP considered a PVC flooring product with a wood veneer layer glued to the surface after extrusion to be excluded from heading 3916. As gluing layers together changes the properties of the product and constitutes a more elaborate assembly process than sanding and brushing, NY N285109 is also consistent with our conclusion that the Cali Bamboo decking panels are correctly classified in heading 3916, HTSUS, and cannot be classified in heading 3925, HTSUS.
HOLDING:
The instant composite decking panels are classified in heading 3916, HTSUS, specifically subheading 3916.10.00, which provides for “Monofilament of which any cross-sectional dimension exceeds 1 mm, rods, sticks and profile shapes, whether or not surface-worked but not otherwise worked, of plastics: Of polymers of ethylene.” The 2019 column one, general rate of duty is 5.8 percent ad valorem.
EFFECT ON OTHER RULINGS:
NY N265544, dated July 1, 2015, is hereby affirmed.
Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division