CLA-2 RR:CR:TE 960084 RH
Port Director
U.S. Customs Service
1000 2nd Avenue, Suite 2100
Seattle, WA 98104-1049
Re: Protest number 3001-96-100323; fiberboard flooring;
subheading 4411.19.4000;
tileboard; subheading 4411.19.3000
Dear Sir:
The subject protest was filed by the law firm of Grunfeld,
Desiderio, Lebowitz & Silverman, LLP, on behalf of Witex U.S.A.,
Inc., and concerns the classification of fiberboard flooring
panels from Germany.
The importer substituted counsel and is now represented by the
Law Firm of Smith, Gambrell & Russell, LLP. Please make sure
that firm receives a copy of this decision along with Customs
Form 19, as directed in the last paragraph of this ruling. We
received supplemental submissions from counsel on May 16, 1997
and September 15, 1997. In addition, we met with counsel and his
client on July 13, 1997, to discuss the issues in this case.
Upon importation, the protestant classified the merchandise under
consideration as tileboard under subheading 4411.19.3000 of the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). Customs reclassified the merchandise under subheading
4411.19.4000, HTSUSA, as other fiberboard, and liquidated the
entry on March 22, 1996.
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The protestant states that Customs classification of the
merchandise is inconsistent with Headquarters Ruling Letter (HQ)
085913, dated January 8, 1990, and that it involves questions of
law or fact not ruled on by the Commissioner of Customs or his
designee or by a Customs Court. Therefore, review of this
protest is warranted under 19 CFR 174.24(a) and (b).
FACTS:
The merchandise under consideration is described in the original
submission as follows:
The merchandise consists of large tileboards used as
flooring. The tileboards come in two sizes. One size is
eight millimeters in thickness, 1290 millimeters in length,
and 199 millimeters in width. The other size is eight
millimeters in thickness, 858 millimeters in length, and 400
millimeters in width. The tileboard is made with a substrate
of high density fibreboard, also known as hardboard, of a
density exceeding 0.9 grams per cubic centimeter. Both the
upper and lower surfaces are coated with a water-resistant
thermosetting resin known as melamine. In addition to
making the tileboard water-resistant, the coating adds
durability and dimensional stability. The upper surface
coating also contains a decorative film made by a
photographic process to simulate the appearance of wood,
stone, marble, or ceramic.
ISSUE:
Whether the fiberboard flooring panels are classifiable under
subheading 4411.19.3000, HTSUSA, as tileboard, or under
subheading 4411.19.4000, HTSUSA, as other fiberboard?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Subheading
4411.19.3000 encompasses:
Fiberboard of a density exceeding 0.9 g/cm : Other:
Other: Tileboard which has been continuously worked
along any of its edges and is dedicated for use in the
construction of walls, ceilings or other parts of
buildings.
Counsel argues that the flooring meets the criteria in subheading
4411.10.3000, i.e. the flooring panels are over 0.8 grams in
density, surface covered with a hard finish, continuously worked
on the edges and used in the construction of parts of buildings.
Thus, counsel claims it should be classified within that
provision.
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We disagree that the merchandise in question is tileboard merely
because it exceeds 0.8 grams in density, the edges are bullnosed
and it has a "Class 1 or Class 2" finish. Subheading 4411.19.30
is an eo nomine provision and a use provision. "An eo nomine
designation is one which describes a commodity by a specific
name, usually one well known to commerce." 2 R. Sturm, Customs
Law and Administration 53.2 (3rd Edition 1990).
The common meaning of an eo nomine designation is determined by
the meaning it had at the time of enactment of the tariff act.
United States v. Brager-Larsen, 36 C.C.P.A. 1, 3-4, C.A.D. 388
(1948); Davies Turner & Co. v. United States, 45 C.C.P.A. 39,
C.A.D. 669 (1957). In their determination of what this "common
meaning" encompasses, Customs and the courts may examine the use
to which the imported goods are put. United States v. Quon Quon
Co., 46 C.C.P.A. 70, 73 ,C.A.D. 699 (1959).
Thus, it is proper to take use into account when classifying an
article under an eo nomine provision where the common and
commercial meaning of the article at the time the tariff schedule
was drafted included references to use. Headquarters Ruling
Letter (HQ) 950783, dated September 10, 1992, citing Admiral Div.
of Magic Chef, Inc. v. United States, 754 F. Supp. 881, (Ct.
Int'l Trade 1990) (it is necessary to examine legislative history
and other extrinsic sources to determine the common meaning of
merchandise); Hummel Chemical Co. v. United States, 29 C.C.P.A.
178, 183, C.A.D. 189 (1941) (tariff terms generally "are not
drafted in terms of science, but in the language of commerce,
which is presumptively that in common use.").
Subheading 4411.19.3000 (tileboard) was added to the HTSUSA in
1988 at the request of the Office of the United States Trade
Representative (USTR), shortly after USG Corporation filed a
petition on behalf of the J.J. Barker Company. The basis of the
petition was New York Ruling Letter (NY) NY 825656, dated
December 2, 1987, which classified the J.J. Barker panels under
subheading 4411.19.4020 with a duty rate of 6 percent ad valorem.
As described in NY 825656, the J.J. Barker panels had a density
of 1.15 grams per cubic centimeter. The surface was painted,
coated and grooved to imitate ceramic tiles. The edges and some
ends were bullnosed or rounded. The panels were designed to be
installed on walls surrounding bath tubs.
We reviewed additional literature on the J.J. Barker tileboard
panels, which describes them as completely moisture resistant
decorative wall panels that give the look and feel of authentic
expensive ceramic tiles. They are specifically designed for use
in any moisture or high humidity area such as bathrooms,
laundry rooms or kitchens. Tub enclosure and shower walls are
the most predominate use. Tileboards are manufactured in 4' x 8'
and 5' x 5' sheets. The boards are pregrooved or "scored" to
simulate individual tiles.
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The use and description of tileboard, as evidenced by Barker
literature, are substantiated by the American Hardboard
Association (AHA) article entitled "Tileboard Wall Paneling."
The article states that tileboard paneling is suitable for
installation in any room in the home including kitchen, laundry,
or both. The article sets forth recommended application
instructions that represent the "best judgement of the industry
as to the minimum requirements for the storage and application of
tileboard paneling." It states that:
Tileboard paneling has a hard durable surface that is
highly resistant to stains and moisture when properly
installed and cared for. In order to maintain the
beauty and durability of the finish, it is important
that only the plastic surface be exposed to the
moisture in wet areas such as tubs or showers. It is
very important to keep the moisture from penetrating
the edges and backside of the paneling.
The AHA recommends that tileboard panels must be applied over
3/8" minimum thickness solid backing such as plywood, plaster, or
drywall. The use of water resistant backing such as water
resistance gypsum board in tub and shower areas is recommended,
although not required.
Additionally, it advises that panels should be loosely fit to
permit expansion and contraction and that moldings should be used
to cover all four edges of every panel. Tileboard paneling may
be installed on the lower four feet of the wall as a wainscot
application or it may be full length from floor to ceiling.
The literature submitted by counsel does not suggest that the
imported merchandise under protest is tileboard. Conversely, the
following excerpts confirm that the product is flooring:
Our Laminate Flooring can stand up to all sorts of treatment
and is easy to clean.
Witex is the international brand name for extra special
Laminate flooring.
Wall End Profiles For a harmonious transition between wall
and floorboards you can either choose black, white or
selected stone decors.
Witex is a system flooring brand.
Witex is the brand name for high quality laminate flooring
which can cope with all the stresses of living, playing and
working.
They are high quality and manufactured for an exact fit
which means they can be laid easily and quickly, even on old
wood, stone and linoleum floors.
For those with an eye on the calculator, this flooring is
worth the outlay.
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On July 13, 1996, we met with counsel and his client to discuss
the issues. We also afforded them an opportunity to submit
additional information from the AHA to substantiate the claim
that the importer's product is tileboard as opposed to flooring.
Counsel forwarded us a copy of a letter dated September 3, 1997,
from the Executive Vice President of the AHA setting forth the
defining characteristics of tileboard. The last paragraph of
that letter reads:
Assuming that the finish of a product described as a
cellulose-based fiberboard panel, with a density of
0.895 grams per cubic centimeter meets or exceed the
aforementioned Class I finish Criteria, that product
should be grouped with tileboard.
This letter did not address any of the concerns we raised to
counsel during our meeting, i.e. to ask the AHA to state the
differences between flooring and tileboard and specifically to
examine the Witex product and provide an opinion whether it is
tileboard or flooring. Thus, we called the Executive Vice
President and spoke to him directly regarding this matter. It
appears that the statement quoted above is taken out of context
because he informed us that he was asked about the finish only
for tileboard, and that he limited his focus to that aspect of
the product. However, he further stated that the finish alone
does not make a product tileboard, and that tileboard and
flooring, in his opinion, are different products.
We acknowledge that some consumers may purchase flooring panels
to put on walls for a decorative effect, however that does not
transform the product into tileboard. Unlike tileboard, the
merchandise in question is used primarily as flooring.
Classification of tileboard is based upon use and that use is the
principal use in the United States of goods of the same class or
kind to which the subject goods belong. See, Additional U.S.
Rule of Interpretation 1(a). We note that in regard to
classification by principal use, the Court of International Trade
stated in Group Italglass U.S.A. v. United States, 17 C.I.T.
1177, 839 F. Supp 866 (1993):
The court stresses that it is the principal use of the class
or kind of goods to which the imports belong and not the
principal use of the specific imports that is controlling
under the Rules of Interpretation.
The protestant admits that the merchandise is used primarily as
flooring. Furthermore, it is marketed and sold as flooring and
is consistently referred to in the literature as flooring. We
note that the last brochure submitted for "Wall Covering Tiles"
does not appear to be the same merchandise that is under protest.
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Based on the foregoing and an examination of a sample of the
fiberboard flooring panels, we find that the merchandise in
question is not tileboard.
HOLDING:
In the instant protest, the fiberboard flooring is classifiable
as under subheading 4411.19.4000, HTSUSA, as other fiberboard.
The protest should be denied in full.
In accordance with section 3A(11)(b) of Customs Directive Number
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be attached to the Customs Form
19, Notice of Action, and furnished to the Protestant no later
than 60 days from the date of this letter. Any reliquidation of
the entry in accordance with the decision must be accomplished
prior to mailing of the decision. Sixty days from the date of
the decision (On that date) the Office of Regulations and Rulings
will take steps to make the decision available to Customs
personnel via the Customs Ruling Module in ACS and to the public
via the Diskette Subscription Service, Freedom of Information
Act, and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division