CLA-2 CO:R:C:T 953913 ch
District Director
111 W. Huron Street
Room 603
Buffalo, New York 14202
RE: Application for further review of Protest No. 0901-XX-
XXXXXX under 19 U.S.C., section 1514(c)(2); wood trim
(moldings); Explanatory Notes for headings 4409;
heading 4421; painting, staining or varnishing;
effective date.
Dear Sir:
The above-referenced protest was forwarded to this office
for further review. We have considered the protest and our
decision follows.
FACTS:
The subject merchandise is certain painted wood (yellow)
poplar trim which have been entered and liquidated as other
articles of wood, pursuant to subheading 4421.90.90, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA).
Protestant claims that these entries should be reliquidated, duty
free, as nonconiferous standard wood moldings, under subheading
4409.20.40, HTSUSA.
ISSUE:
What is the proper tariff classification for the instant
merchandise?
LAW AND ANALYSIS:
Customs has long held that the presence of paint, stain or
varnish on certain wood moldings otherwise classifiable in
subheading 4409.20.40, HTSUSA, free of duty, advances them so as
to be articles classified in subheading 4421.90.90, HTSUSA,
dutiable at the rate of 5.1% ad valorem; 3% if a product of
Canada. See Customs Rulings NY 847133, dated November 22, 1989,
and DD 845942, dated October 13, 1989. However, at its Sixth
Session, in November 1990, the Customs Cooperation Counsel's
Harmonized System Committee (HSC) decided that the classification
of wood products should not be affected by their having been
painted, stained or varnished. The Committee reasoned that these
surface treatments did not affect the basic character of the
products.
At its Seventh Session in April, 1991, the HSC approved the
following three new texts for the Explanatory Notes:
1. Amendment to the General Explanatory Note to Chapter 44
(page 622, Sixth paragraph):
Generally speaking, throughout the Nomenclature, the
classification of wood is not affected by treatment
necessary for its preservation, such as seasoning,
superficial charring, priming and stopping, or
impregnation with creosote or other wood preservatives
(e.g., coal tar, pentachlorophenol, chromated copper
arsenate or ammoniacal copper arsenate); nor is it
affected by reason of being painted, stained or
varnished. However, these general considerations do
not apply in the case of the subheadings of heading
44.03 and 44.06, where specific classification
provision has been made for particular categories of
painted, stained or preservative-treated wood.
2. Explanatory Note to Heading 44.03 (page 625, first
paragraph, new second sentence:
These poles are often painted, stained, varnished or
impregnated with creosote or other substances.
3. Exclusionary Explanatory Note to Heading 44.09 (page
629, last paragraph, (e), new paragraph:
(e) Wood which has been surface worked beyond planing
or sanding, other than painting, staining or varnishing
e.g., veneered, polished, bronzed, or faced with metal
leaf) (generally heading 44.21).
Under the decision of the Harmonized System Committee,
products of chapter 44 remain classified in their "material"
headings regardless of the presence of paint, stain or varnish.
This decision represented a broader interpretation of certain
provisions of Chapter 44 of the Harmonized System (notably the
first nine headings) than was held by the Customs Service.
Specifically, the change to the EN of heading 4409 would have the
effect of changing the classification of the subject merchandise
from heading 4421 to heading 4409.
The Explanatory Notes (EN) to the Harmonized Commodity
Description and Coding System constitute the official
interpretation of the nomenclature at the international level.
The EN are not legally binding. However, they do represent the
considered views of classification experts of the Harmonized
System Committee. It has therefore been the practice of the
Customs Service to follow, whenever possible, the terms of the EN
when interpreting the HTSUSA.
Ultimately, Customs implemented the amendments cited above.
However, it was necessary for Customs to decide upon a date at
which time these changes were to become effective. This date was
necessary to insure uniform classification of similar goods
entered on the same date, as well as to notify all ports of the
changes in practice. The effective date for these changes was
April 19, 1993. As the entries at issue occurred prior to April
19, 1993, they were properly liquidated under heading 4421,
HTSUSA.
HOLDING:
Therefore, based on the foregoing discussion, this protest
should be denied in full. The subject entries were properly
classified under subheading 4421.90.90, HTSUSA, which provides
for other articles of wood: other: other. A copy of this
decision should be attached to the CF 19 Notice of Action to
satisfy the notice requirement of section 174.30(a), Customs
Regulations.
Sincerely,
John A. Durant, Director
Commercial Rulings Division