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HQ 964825




July 11, 2001
CLA-2 RR:CR:TE 964825 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 4418.90.40

Port Director
U.S. Customs Service
1000 Second Avenue
Suite 2100
Seattle, Washington 98104

RE: Application for Further Review of Protest No. 3001-01-100006; Seattle File Number: PRO-4 SE:TCP:SJ

Application of Amendments to Explanatory Notes; Wood products shaped on edges and ends; Headings 4409 and 4418, HTSUSA.

Dear Port Director:

The purpose of this correspondence is to address the Application for Further Review of Protest Number: 3001-01-100006, dated January 4, 2001. The Importer of Record and Protesting Party is Cascade Components, Inc.

The Customs Service issued two Notices of Action (Customs Forms 29) to Cascade Components, Inc. The initial Notice of Action is dated September 18, 2000 and addresses Entry Number: 445-05766483 (Entry 648-3). It indicated that a rate advance had been taken based on the conclusion of the Customs Service Import Specialist that the Importer had not properly classified certain hardwood flooring from Taiwan. The second Notice of Action is dated September 26, 2000 and addresses Entry Number: 445-05767689 (Entry 768-9). It indicated that a rate advance was proposed based on the conclusion of the Customs Service Import Specialist that the Importer had not properly classified certain solid White Oak wood flooring from Taiwan.

The Importer, subsequent to receipt of the Notices of Action, filed a Protest challenging the Customs Service classification. Cascade’s Protest accompanied an Application for Further Review that was approved.

A review of the Protest (Customs Form 19) and the Customs Protest and Summons Information Report (Customs Form 6445A) indicates that the protest was timely filed pursuant to 19 U.S.C. 1514 (c) (3) (West 1999) and 19 C.F.R. 174.12 (e) (2).

This Protest decision is being issued subsequent to a review of the Protest filed on the behalf of Cascade and the memorandum and accompanying documents that were made a part of the Protest.

FACTS

The article in issue in Entry 648-3 is hardwood Maple flooring of various lengths. The sample submitted to the Customs Service at the Port of Seattle was twenty-three and seven-eighths (23 7/8) inches long, three and one-half (3 ½) inches wide and three-fourths (3/4) inches thick. The merchandise is tongued along one edge and end, and grooved along the other edge and end. Two grooves run the length of the boards along the bottom face or surface.

The article in issue in Entry 768-9 is solid White Oak wood flooring. The merchandise of Entry 768-9 is also understood by the Customs Service to be of various lengths. It is, as with the merchandise of Entry 648-3, tongued along one edge and end, and grooved along the other edge and end. Two grooves run the length of the boards along the bottom face or surface.

ISSUE

Did the Customs Service properly issue the Notices of Action taking a rate advance, Entry 648-3, and proposing to take a rate advance, Entry 768-9, based on the Customs Services Import Specialist’s conclusion that the Importer of Record had incorrectly classified the above-described wood flooring products pursuant to the Harmonized Tariff Schedule of the United States Annotated because the merchandise of the subject entries was tongued and grooved along the edges as well as ends ?

LAW AND ANALYSIS

The responsibility for interpreting and applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) rests with the U.S. Customs Service.

See Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep. No. 100-576, at 549 (1988) reprinted in 1988 U.S. Code Cong. and Adm. News 1547, 1582 [hereinafter Joint Explanatory Statement]. The Customs Service, in accordance with its legislative mandate, classifies imported merchandise pursuant to the General Rules of Interpretation (GRI) and the Additional U.S. Rules of Interpretation See 19 U.S. C. 1202 (West 1999).. GRI 1 provides that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” GRI 1 further provides that merchandise which can not be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation in their sequential order.

Heading 4418, HTSUSA, provides for “Builders’ joinery and carpentry of wood, including cellular wood panels and assembled parquet panels; shingles and shakes.” Heading 4418, HTSUSA. Customs has previously concluded that this heading, more accurately than any other heading, describes wood products that are tongued along one edge and end, grooved along the other edge and end, and have grooves that run the length of a boards along the bottom face or surface. See HQ 952940 (Mar. 24, 1993), HQ 955712 (April 20, 1994), HQ 956363 (Sept. 2, 1994).

Customs based its prior rulings, in accordance with General Rule of Interpretation 1, on the wording of heading 4418, HTSUSA. The headings and subheadings, as well as the General Rules of Interpretation and the Additional U.S. Rules of Interpretation being congressionally enacted U.S. statutory law See Section 1202 supra Note 2..

Customs, in addition to reviewing heading 4418, HTSUSA, also examined heading 4409, HTSUSA. Customs undertook this review because of the Importer’s suggestion that the merchandise is properly classified in heading 4409, HTSUSA. Heading 4409, HTSUSA, 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 or faces, whether or not planed, sanded or finger-jointed.” Heading 4409, HTSUSA. Heading 4409, HTSUSA, specifically provides for wood that is continuously worked or shaped along any of its edges or faces, but the heading is noticeably silent with regards to wood that is shaped on its ends.

Customs, as secondary, non-binding authority, relied on the interpretation of the HTSUSA headings provided by the Explanatory Notes (EN) to the Harmonized System (HS). The Harmonized System is the internationally agreed upon nomenclature or language which establishes a degree of uniformity or harmonization between the tariff schedules of all Contracting Parties to Convention on the Harmonized Commodity Description and Coding System. The United States is a Contracting Party or signatory to the Convention.

The Explanatory Notes constitute the official interpretation of the Harmonized System. The Explanatory Notes, although neither legally binding nor dispositive of classification issues, provide commentary on the scope of each heading of the HS and are consulted for guidance by the Customs Service. The EN’s are generally, but not always, indicative of the proper interpretation of the Harmonized System. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989). See generally What Every Member of the Trade Community Should Know About: Tariff Classification, U.S. Customs Service, A Basic Level Informed Compliance Publication (2001) available at the World Wide Web site of the U.S. Customs Service at www.customs.gov, click “Importing & Exporting,” then search Informed Compliance. See also Mita Copystar Am. V. United States 21 F. 3d 1079, 1082 (Fed. Cir. 1994) citing Lynteq, Inc. v. United States 976 F. 2d 693, 699 (Fed. Cir. 1992); Jewelpak Corp. v. United States, 97 F. Supp. 2d 1192 (CIT 2000).

Congress, when it was anticipated that the Tariff Schedule of the United States (TSUS) would be replaced with the Harmonized Tariff Schedule of the United States, addressed the status of the Explanatory Notes in a Joint Committee Report See Joint Explanatory Statement supra Note 1.. Congress stated in the Committee Report:

The Explanatory Notes constitute the Customs Cooperation Council’s official interpretation of the Harmonized System. They provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system.

Id.; The Customs Cooperation Council is now generally know as the World Customs Organization.

The Committee Report further advised, however, that the EN’s were not binding on the Contracting Parties to the Convention and as such should be consulted for guidance, but not “treated as dispositive.” Id.

The Explanatory Notes utilized for guidance purposes by the Customs Service in previously classifying similar merchandise were EN 44.09 and EN 44.09 exclusion (b). Explanatory Note 44.09, at the time it was referenced for guidance, provided:

This heading covers timber, particularly in the form of boards, planks, ect., which after sawing or squaring, has been continuously shaped along any of its edges or faces either to facilitate subsequent assembly or to obtain the moldings or beadings described in Item (4) below, whether or not planed, sanded or end-jointed, e.g. finger-jointed (see the General Explanatory Note to this Chapter). Continuously shaped wood covers both products with a uniform cross-section throughout the length and products having a repetitive design in relief. Explanatory Note 44.09.

Exclusionary paragraph (b) to EN 44.09 provided:

The heading also excludes:(b) Wood which has been mortised or tenoned, dovetailed or similarly worked at the ends and wood assembled into panels being builders carpentry or joinery (e.g. parquet flooring panels made up from parquet flooring blocks, strips, ect., whether or not on a support of one or more layers of wood)(heading 44.18). Explanatory Note 44.09 (b).

The Customs Service in the ruling letters previously referenced classified similar merchandise in heading 4418, HTSUSA, noting that neither heading 4409, HTSUSA, nor the EN’s to heading 4409, HTSUSA, addressed wood products that were tongued and grooved along the edges and ends. Customs additionally took note of exclusionary paragraph (b) of EN 44.09 which suggested that wood “worked at the ends” was builder’s carpentry and joinery and properly classified in heading 4418, HTSUSA.

The situation confronted in the instant protests is that the Harmonized System Committee of the World Customs Organization (WCO) has subsequently amended the Explanatory Notes. The Harmonized System Committee of the WCO amended, in particular, Explanatory Note 44.09 See Amendments to the Nomenclature and to the Explanatory Notes to Clarify the Scope of heading 44.09, Annex M/7 to Doc. NC0090B1 (HSC/23/May 99).. Explanatory Note 44.09 now reads:

This heading covers timber, particularly in the form of boards, planks, ect., which after sawing or squaring, has been continuously shaped along any of its edges or faces either to facilitate subsequent assembly or to obtain the moldings or beadings described in Item (4) below, whether or not planed, sanded or end-jointed, e.g. finger-jointed (see the General Explanatory Note to this Chapter). For the purposes of this heading the term “edges” includes ends. Continuously shaped wood covers both products with a uniform cross-section throughout the length and products having a repetitive design in relief. (Emphasis added).

Cascade, the Protestant, relying on the amended Explanatory Notes which now defines the term “edges” to include “ends,” understandably asserts that its product, which is tongued along one edge and end, and grooved along the other edge and end, should be classified in heading 4409, HTSUSA. Cascade entered the merchandise in subheading 4409.20.25, HTSUSA, 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 or faces, whether or note planed, sanded or finger-jointed:

4409.20 Nonconiferious:

Wood flooring.

Although Cascade’s position is reasonable on first reading, its weakness is two-fold. Initially, heading 4418, HTSUSA, specifically provides for the merchandise in issue. Secondly, the Explanatory Notes are not law in the United States and neither the courts nor the Customs Service are bound to follow them if they are not consistent with the HTSUSA which is, as previously stated, U.S. statutory law. The EN’s, as previously established, only offer guidance and are not dispositive. The Customs Service is, therefore, basing is decision on the language of heading 4418, HTSUSA. This office is not relying on EN 44.09, as amended, to clarify heading 4409 of the Harmonized Tariff Schedule of the United States.

The Customs Service concludes that the merchandise imported by Cascade is properly classified, pursuant to GRI 1, in heading 4418, HTSUSA. The correct subheading, pursuant to GRI 6, is subheading 4418.90.40, HTSUSA. Subheading 4418.90.40, HTSUSA, provides for:

Builders’ joinery and carpentry of wood, including cellular wood panels and assembled parquet panels; shingles and shakes:

Other:

Other.

Although the reasoning underlying this decision may not be in harmony with the Harmonized System Committee’s recent classification decision relating to heading 44.09 of the HS, it is consistent with the Congressionally intended implementation of heading 4409 and heading 4418 of the Harmonized Tariff Schedule of the United States.

It is the decision of Customs, as previously stated, that heading 4418, HTSUSA, specifically provides for the classification of the merchandise in issue. Since heading 4418, HTSUSA, specifically provides for the Maple and White Oak wood flooring, tongued and grooved on the edges and ends, the Customs Service need not consult the Explanatory Notes to heading 44.09 of the HS for guidance.

HOLDING

The protest is DENIED in full.

The Maple and White Oak wood flooring, tongued and grooved on the edges and ends, at issue in the protest is classified in subheading 4418.90.40, HTSUSA.

The General Column One Rate of Duty is three and two-tenths (3.2) percent ad valorem.

In accordance with Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, section 3 A. (11) (b), you are to mail this decision and the Protest (Customs Form 19) to the Protesant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with this decision must be accomplished prior to mailing the decision.

The Office of Regulations & Rulings will make this decision available to Customs personnel and to the public on the Customs Service Home Page on the World Wide Web, www.customs.gov, by means of the Freedom of Information Act and by other methods of public distribution sixty days from the date of this decision.

Sincerely,

John Durant, Director


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