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HQ 953913


July 30, 1993

CLA-2 CO:R:C:T 953913 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 4421.90.90

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

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