CLA-2 OT:RR:CTF:TCM H086296 TNA
Port Director, Chicago Service Port
U.S. Customs and Border Protection
9915 Bryn Mawr Rosemont, IL 60018
Re: Protest and Application for Further Review No: 3901-09-100409; Raised Veneer Panels
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 3901-09-100409, timely filed on March 30, 2009, by counsel on behalf of Owens, Inc., regarding the tariff classification of raised veneer panels under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject merchandise consists of an external face and back ply of veneer with a particleboard core. Its total thickness is approximately 1/64 inch.
The subject panels are manufactured by compressing the particle board core between the two layers of wood veneer in an aluminum mold for both faces of the panel, which is pressed together in a hydraulic heated press such that the pressure and heat molds the materials into shape. Once formed and cooled, the panel is sanded but not otherwise finished before importation. The panels are imported in various widths and lengths to be assembled into various door configurations after importation.
The merchandise was entered on April 25, 2008 and April 29, 2008 in heading 9403, HTSUS, as other parts of furniture. The merchandise was liquidated on March 20, 2009 in heading 4421, HTSUS, as “other articles of wood.” Protestant now claims classification in heading 4412, HTSUS, as “plywood, veneered panels and similar laminated wood.”
ISSUE:
Whether raised veneer panels should be classified in heading 4412, HTSUS, as “veneer panels,” or under 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 of the first. (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 of Protest No. 3901-09-100409 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because Protestant alleges that the liquidation was inconsistent with prior CBP rulings and that. Specifically, Protestant argues that the liquidation in heading 4421, HTSUS, is inconsistent with prior rulings that classify similar merchandise differently, HTSUS. See, e.g., NY I84103, dated August 12, 2002; NY F82089, dated February 14, 2000; HQ 088543, dated March 2, 1992; NY N020370, dated December 19, 2007; NY 855407, dated September 13, 1990; and NY N009861, dated May 17, 2007.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS headings under consideration are the following:
4412 Plywood, veneered panels and similar laminated wood
Other:
4412.99 Other:
With at least one outer ply of nonconiferous wood:
4412.99.06 Containing at least one layer of particle board
* * * * * * * * * *
4421 Other articles of wood:
4421.90 Other:
Other:
4421.90.97 Other
* * * * * * * * * *
Chapter Note 4 to Chapter 44, HTSUS, reads, in pertinent part:
Products of heading 44.10, 44.11 or 44.12 may be 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 or submitted to any other operation provided it does not give them the character of articles of other headings.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 4412, HTSUS, reads, in pertinent part, the following:
This heading covers:
….
(2) Veneered panels, which are panels consisting of a thin veneer of wood affixed to a base, usually of inferior wood, by glueing under pressure.
Wood veneered on to a base other than wood (e.g., panels of plastics) is also classified here provided it is the veneer which gives the panel its essential character.
The EN to heading 4421, HTSUS, reads, in pertinent part, the following:
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).
The articles of this heading may be made of ordinary wood or of particle board or similar board, fibreboard, laminated wood or densified wood (see Note 3 to this Chapter).
Protestant claims classification in heading 4412, HTSUS, as “plywood, veneered panels and similar laminated wood.” In support, protestant cites a number of cases where the court held that even a significant amount of processing will not necessarily preclude wood from classification in heading 4412, HTSUS. See, e.g., A. N. Deringer, Inc. v. United States, 61 Cust. Ct. 66, 287 F. Supp. 1016; 1968 Cust. Ct. LEXIS 2250; Cust. Dec. 3530 (1968); B.A. McKenzie & Co. v. United States, 47 CCPA 42, C.D. 726 (1959). Protestant also cites to a number of CBP rulings that did not classify merchandise as finished articles even where it was clearly intended for a specific use. See, e.g., NY N020370, dated December 19, 2007; NY I84103, dated August 12, 2002.
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 preceding headings.” See EN 44.21.
While we concede that wood merchandise can undergo processing before importation and still be classified in heading 4412, HTSUS, merchandise that has been so processed that it has become a different article cannot be classified in heading 4412, HTSUS. In Deringer, for example, the court stated that “if the lumber had been processed to the extent that it itself became the article for which the material was intended, then it was dutiable as a manufacture of wood and not as lumber.” (Emphasis in original.) Deringer, 61 Cust. Ct. at 72. Furthermore, the merchandise at issue in the CBP rulings and Millenium to which protestant cites were not processed to the point where they had the character of other articles.
In the present case, by contrast, the merchandise has a fiberboard core with a face and back ply of veneer. It is not simply a veneer panel. As such, it has lost the character of heading 4412, HTSUS, by this assembly. As a result, the subject veneered panels are classified in heading 4421, HTSUS, and specifically in subheading 4421.90.97, HTSUS, as “other articles of wood: other: other: other.”
HOLDING:
By application of GRI 1, the raised veneer panels are classified in heading 4421, HTSUS, specifically subheading 4421.90.97, HTSUS, which provides for: “other articles of wood: other: other: other.” The 2008 general column one rate of duty in effect at the time of entry was 3.3%.
You are instructed to DENY the protest.
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. 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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page 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