CLA-2-44:OT:RR:NC:2:230
Lars-Erik A. Hjelm, Esq.
Lisa W. Ross, Esq.
Akin, Gump, Strauss, Hauer & Feld, LLP
1333 New Hampshire Avenue, N.W.
Washington, D.C. 20036-1564
RE: The tariff classification of wood slats, wood valances, and wood bottom rails for wood blinds imported from China, Vietnam, and Mexico
Dear Mr. Hjelm and Ms. Ross:
In your letters dated May 29, 2008 and September 16, 2008, you are requesting a classification ruling on behalf of Comfortex Corp. (d/b/a Hunter Douglas Wood Products) (“HD”). HD will import continuously shaped wood slats, wood valances, and wood bottom rails that are used in the manufacture of wood blinds and intends to source these products from suppliers in China, Vietnam, and Mexico.
The subject wood products are made of solid basswood (Tilia Americana), a nonconiferous wood species. You state that in their imported condition, the wood products in question are not finished window blinds. After importation into the United States, HD will cut the wood products to custom lengths, punch channel holes, and assemble them with cords and hardware.
Five representative samples of the wood products in question were submitted. They are described as follows:
Wood valance – primed and painted white. The valences measure between 3/8 to 3/4 inch in thickness, 3 to 5 inches in width, and 3 to 10 feet in length. The face and the edges are continuously shaped to a pattern along the length. The valances will be imported either stained or painted.
Wood slat – with stain base and “stain coating” (“2 PASS SLAT TOPCOAT”), which is stated to be a slightly tinted paint. The wood slats measure 1/8 to 3/16 of an inch in thickness, range from 1 inch to 2-5/8 inches in width, and will be imported in lengths of 3 to 10 feet. The slats have rounded edges along the length. The slats will be imported either stained or painted.
Wood bottom rail – primed, painted white, and with a UV protective coat. The bottom rails measure 5/8 inch in thickness, 1 to 2.5 inches in width, and 3 to 10 feet in length. The rails are continuously shaped to a pattern along the length. The rails will be imported either stained or painted.
Wood slat - with stain base, stain coating, and with a UV protective coat. (See sample #2 for sizes and finishing options.) The slats have rounded edges along the length.
Wood bottom rail - with primer and white paint. (See sample #3 for sizes and finishing options.) The edges are continuously shaped to a pattern along the length.
You have submitted a step-by-step manufacturing process and surface finishing of the five products in question. Regarding the finishing process, you have submitted a complete description and the manufacturer’s data sheets for each material used to coat the subject wood products. The data sheets provide the proprietary and trade secret composition of each material. Therefore, you have requested that the data sheets be returned to you at the conclusion of this ruling request. The data sheets are being returned as requested.
The classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) is governed by the General Rules of Interpretation (GRIs), taken in order. GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. In the event that goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require the remaining GRIs will be applied, in the order of their appearance.
Heading 4409 provides for wood (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rebated, chamfered, v jointed, beaded, molded, rounded or the like) along any of its edges, ends or faces, whether or not planed, sanded or end jointed. The subject wood parts, which are used to manufacture window blinds, have been continuously shaped along the edges and/or faces. Therefore, heading 4409 appears to be the first and most specific provision at the heading level. However, we need to consider the fact that these wood blind parts have been further processed by staining, priming, painting, and coated with a UV protective material.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and the General Rules of Interpretation. While neither legally binding nor dispositive of classification issues, the ENs provide commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
The General ENs to Chapter 44 state as follow:
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 (ISO), 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 headings 44.03 and 44.06, where specific classification provision has been made for particular categories of painted, stained or preservative treated wood.
Clearly, the ENs tell us that there is a distinction between preservative-treated wood and painted, stained, and varnished wood. Paints, stains, and varnishes do not preserve a wood product; they are protective coatings that provide a superficial decoration and protection. Accordingly, the ENs to chapter 44 list them separately. Nevertheless, painting, staining, and varnishing are wood finishing methods that generally do not affect the tariff classification. However, the ENs tell us that under heading 4409 there are limitations as to the type of surface working that can be performed on the provided wood products and still remain classified in the heading.
The ENs to heading 44.09 state as follows:
The heading also excludes:
(e) Wood which has been surface worked beyond planing or sanding, other than painting, staining or vanishing (e.g. veneered, polished, bronzed, or faced with metal leaf) (generally heading 44.21).
The ENs state that there are surface processing methods that exclude wood products from being classified under heading 4409, HTSUS. Thus, in each case, we need to determine if the wood processing has made a product of heading 4409, HTSUS, “surface worked beyond planing or sanding, other than painting, staining or vanishing.” (ENs to 4409, exclusion (e), supra.)
The discussion that you offer on the tariff classification of paints and varnishes under heading 3208, HTSUS, is not relevant when classifying products under chapter 44. However, it is instructive to note that heading 3208, HTSUS, provides for “Paints, and varnishes (including enamels and lacquers).” Thus, the tariff recognizes these goods as being distinct and separate products, that is, paints, varnishes, enamels, and lacquers. Indeed, they may be classifiable under the same heading, but they are not the same product. Hawley’s Condensed Chemical Dictionary, Fourteenth Edition, (2001) defines the terms in questions as follows:
1. Paint: A uniform dispersed mixture having a viscosity ranging from a thin liquid to a semisolid paste and consisting of (1) a drying oil, synthetic resin, or other film-forming component, called the binder; (2) a solvent or thinner; and (3) an organic or inorganic pigment. The binder and the solvent are collectively called the vehicle. Paints are used (1) to protect a surface from corrosion, oxidation, or other type of deterioration, and (2) to provide decorative effects.
2. Stain: (1) An organic protective coating similar to a paint, but with much lower solids content (pigment loading).
3. Varnish: (1) An organic protective coating similar to a paint except that it does not contain a colorant. It may be composed of a vegetable oil (linseed, tung, etc.) and solvent or of a synthetic or natural resin and solvent. In the first case the formation of the film is due to polymerization of the oil and the second to evaporation of the solvent. “Long-oil” varnishes such as spar varnish have a high proportion of drying oil; “Short-oil” types have a lower proportion, i.e., furniture varnishes. Spirit varnishes contain such solvents as methanol, toluene, ketones, etc. and often also thinners such as naphtha or other light hydrocarbon. Flammable. (2) A hard, tightly adherent deposit on the metal surfaces of automobile engines resulting from resinous oxidation products of gasoline and lubricating oils.
4. Lacquer: A protective or decorative coating that dries primarily by evaporation of solvent, rather than by oxidation or polymerization. Lacquers were originally comprised of high-viscosity nitrocellulose, a plasticizer (dibutyl phthalate or blown castor oil), and a solvent. Later, low-viscosity nitrocellulose became available; this was frequently modified with resins, such as ester gum or rosin. The solvents used are ethanol, toluene, xylene, and butyl acetate. Together with nitrocellulose, alkyd resins are used to improve durability. The nitrocellulose used for lacquers has a nitrogen content of 11-13.5% and is available in a wide range of viscosities, compatibilities, and solvencies. Chief uses of nitrocellulose-alkyd lacquers are for coating for metal, paper products, textiles, plastics, furniture, and nail polish. Various types of modified cellulose are also used as lacquer bases, combined with resins, and plasticizers. Many noncellulosic materials such as vinyl and acrylic resins are also used, as are bitumens, with or without drying oils, resins, etc.
Exclusion (e) to the ENs of heading 4409 should be read within the context of treatment of wood for its preservation, but also it allows three specific treatments, that is, painting, staining, and varnishing. It excludes products that have gone through complex finishing processes, e.g., veneering, polishing, bronzing, and metal leaf application.
You have presented various arguments on the interpretation of the Explanatory Notes. However, the Explanatory Notes, as we have noted above, are a guide in understanding the scope of the headings and the General Rules of Interpretation. They are not the law. It is neither appropriate nor instructive to interpret the ENs, or we run the risk of creating a guide to the guide, ad infinitum.
The law, that is, the tariff provision heading 4409, HTSUS, is unambiguous. Nevertheless, the ENs provide commentary on the scope of heading 4409, HTSUS, and are indicative of the proper interpretation of this heading. In this case, the ENs explain what types of products are excluded from heading 4409, HTSUS. Customs and Border Protection (“CBP”) has followed the guidance of the ENs in interpreting heading 4409, HTUS, without disturbing the guide.
In the present case, we need to determine if the wood finishing process has made the subject wood parts for window blinds, in the condition as imported, “surface worked beyond planing or sanding, other than painting, staining or vanishing.” (ENs to 4409, exclusion (e), supra.)
According to the information you have submitted, specifically the manufacturer’s chemical composition data sheets, the stain, primer, and paint used to finish the subject wood products are of the type that do not affect the tariff classification of goods under heading 4409, HTSUS. However, some of the subject parts for window blinds, sample 2 – wood slat, sample #3 - wood bottom rail, and sample #4 – wood slat, have coatings of substances referred to as “SPRAY UV TOPCOAT,” “2 PASS SLAT TOPCOAT,” or “UV ROLLCOAT WATER WHITE.” These substances are not clearly identifiable as paint, stain, or varnish. In an additional submission, you have offered additional information on the nature of the three above substances, including the manufacturer’s chemical composition data sheets. The manufacturer of these three substances identifies them as paint products.
We have analyzed the manufacturer’s chemical composition data sheets and carefully considered your arguments that these finishing coating substances should be treated as paints, and thus, the subject parts for window blinds treated with them should be classified under heading 4409, HTSUS. However, the manufacturer’s chemical composition data sheets for the three substances do not present the general understood composition of paints. These three substances appear to offer some of the composition and benefits of paints and some of the composition and benefits of lacquers. According to the information you have submitted, the “SPRAY UV TOPCOAT,” the “2 PASS SLAT TOPCOAT,” and the “UV ROLLCOAT WATER WHITE.” appear to be known as “lacquer paint.”
The question before us is than to determine if the manufacturing and finishing processes, including the use of “lacquer paint,” have made the subject wood blind parts “surface worked beyond planing or sanding, other than painting, staining, or varnishing,” as explained by the ENs of heading 44.09. Based on the information provided, it is our finding that these wood coating substances are paint products for purposes of heading 4409, HTSUS. Thus, we find that the manufacturing and finishing processes, as described above, are processes within the terms of heading 4409, HTSUS.
The applicable subheading for the subject wood parts for window blinds will be 4409.29.9000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for wood (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rebated, chamfered, V-jointed, beaded, molded, rounded or the like) along any of its edges, ends or faces, whether or not planed, sanded or end-jointed: nonconiferous: other: other. The rate of duty will be free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Paul Garretto at (646) 733-3035.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division
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