CLA-2 RR:CR:TE 963570 RH
Category: Classification
Area Port Director
U.S. Customs Service
4735 Oakland Street
Denver, CO 80239
RE: Application for Further Review of Protest Number 3307-99-100030;
Wood Flooring; Heading 4412; Heading 4418
Dear Sir:
This is a decision on the Application for Further Review of Protest (AFR) numbers 3307-99-100030, filed by Gallagher Transport International, Inc., on behalf of Gamweger, Reto (d/b/a Edelweiss Wood Flooring). The protest is against Customs classification of wood flooring as plywood under heading 4412 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The protestant asserts that the merchandise is correctly classified under heading 4418, HTSUSA, as builder’s joinery and carpentry of wood, specifically parquet panels.
Customs liquidated the entry covering the merchandise at issue on January 22, 1999, and the protestant timely filed the AFR on April 16, 1999. Review of the AFR is warranted under sections 74.24 and 174.25 of the Customs Regulations (19 CFR §§174.24 and 174.25).
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FACTS:
The merchandise in question is a laminated product consisting of three wood plies with the grain of each ply at an angle to its adjacent ply. The face ply consists of one veneer strip across the width. Two samples were submitted, one with the outer surfaces made of larch and the other of beech.
The facts presented (including the samples) describing the merchandise in question do not agree. Thus we are describing all the possibilities presented (including the samples). However, we note that ALL the products are laminated boards, specifically plywood. The discrepancies occur in the species used and the sizes of the boards covered by the subject protest.
According to the information submitted, the boards may be 15 mm or 21 mm thick, 6.2 inches or 7.5 inches wide, and 6.5 feet or 8 feet long. The boards are constructed as follows:
1. Laminated boards 15 mm thick:
a. If made of coniferous wood species, the face is 5 mm thick, the core is 5 mm thick and the back is 5 mm thick.
b. If made of nonconiferous wood species, the face ply is 4 mm thick, the core is 6 mm thick, and the back ply is 5 mm thick.
2. Laminated boards 21 mm thick:
a. If made of coniferous wood species, the face ply is 5 mm thick, the core is 11 mm thick, and the back ply is 5 mm thick.
b. If made of nonconiferous wood species, the face ply is 4 mm thick, the core is 12 mm thick, and the back ply is 5 mm thick.
All the boards are tongued and grooved on the ends and edges. The core of the boards is made of spruce or pine, and the face and back are made of the same species which can be beech or larch. All the boards are face finished with a natural hard wax.
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ISSUE:
Is the flooring at issue classifiable as plywood under heading 4412, HTSUSA, or as parquet panels under heading 4418, HTSUSA?
LAW AND ANALYSIS:
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 and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied.
Additionally, in interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN), which are not legally binding, but are recognized as the official interpretation of the Harmonized System at the international level. It is Customs practice to follow, whenever possible, the terms of the EN when interpreting the HTSUSA.
Heading 4412, HTSUSA, provides for “Plywood, veneered panels and similar laminated wood.” The EN to heading 4412, HTSUSA, 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”.
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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.
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This heading also covers plywood panels or veneered panels, used a flooring panels, and sometimes referred to as “parquet flooring”. These panels have a thin veneer of wood affixed to the surface, so as to simulate a flooring panel made up of parquet strips.
Heading 4418, HTSUSA, provides for “Builders’ joinery and carpentry of wood, including cellular wood panels, assembled parquet panels, and shingles and shakes.” The EN to heading 4418, HTSUSA, 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.
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This heading does not cover:
Plywood panels or veneered panels, used as flooring panels, which have a thin veneer of wood affixed to the surface, so as to simulate a flooring panel made up of parquet strips (heading 44.12).
The Harmonized System Committee (“HSC”) amended the EN to heading 4412 and 4418 in November of 1997 by adding the above-italicized sections. See, Annex IJ/14 to Doc. 41.600 E (HSC/20/Nov. 97). However, because the 1997 amendments have not yet been adopted by Customs, they have no effect on the classification of the merchandise at issue.
Customs position with respect to the classification of laminated flooring in heading 4412 versus heading 4418 is based on a Customs Cooperation Counsel Classification Opinion (“Opinion”), Document No. 34.153, July 29, 1987. The Opinion stated that rectangular mosaic panels consisting of wooden strips must display top layers having more than one strip of wood to be classified under heading 4418 as parquet panels. Following that reasoning, Customs has consistently classified laminated wood flooring in heading 4418, HTSUSA, only when it had a face consisting of multiple veneer strips of wood. See, New York Ruling Letter (NY) 832721, dated November 10, 1988; NY 806603, dated February 24, 1995; Port Decision (PD) A84640, dated July 2, 1999; Headquarters Ruling
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Letter (HQ) 962031, dated February 17, 1999.1 On the other hand, Customs classified laminated wood flooring with a face veneer consisting of a single strip of wood in heading 4412, HTSUSA. See, NY E89394, dated November 26, 1999; HQ960361, dated February 17, 1999.
In its imported condition, the subject merchandise has a plywood construction, i.e., it consists of three wood plies with the grain of adjacent layers at an angle to each other. The top layer is a single veneer strip across the width of the face. Accordingly, it does not possess the characteristics of parquet panels under heading 4418, HTSUSA. Customs correctly classified the merchandise as plywood in heading 4412, HTSUSA.
Finally, our office has already responded to the protestant’s concerns that Customs has allowed Edelweiss’ competitors to enter products that are identical to theirs under a different classification or lower duty rate. That issue does not need to be addressed again in this decision.
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