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HQ 964683

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August 5, 2002

CLA-2 RR:CR:TE 964683 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 4418.90.4590

Port Director
U.S. Customs Service
111 West Huron Street
Buffalo, New York
14202-2378

RE: Internal Advice Memorandum Dated: September 22, 2000; Headings 4412 and 4418, HTSUS; Laminated Wood; Cellular Wood Panels.

Dear Port Director:

The purpose of this correspondence is to respond to the request for Internal Advice from Decoustics. The correspondence in issue requested internal advice concerning the classification of wood panels.

This advice, requested pursuant to 19 C.F.R. 177.11, is being issued subsequent to the following: (1) A review of the Port Memorandum dated September 22, 2000; (2) A review of the submissions and accompanying exhibits of Decoustics dated February 20, 2000, and July 11, 2000; and (3) An examination of the sample “Solo® wood plank” attached to Decoustics submission of July 11, 2000, and identified as exhibit “L.”

FACTS

The articles in issue, identified by Decoustics as “Solo® wood plank product” and “Solo® Acoustic Wood” are wood panels designed to be installed on walls and ceilings in commercial buildings. Decoustics marketing literature provides that the panels consist of “a perforated medium density fiberboard (MDF) with a ribbed natural wood veneer laminated to the face and an acoustically transparent black mat laminated to the back side.” Decoustics suggests that sound energy will pass through the panel and be absorbed by an “insulator” which will be installed behind the panel. The “insulator” was not submitted as a part of the Solo® wood panel for the purposes of classification in this Internal Advice request.

The panels are composed of medium density fiberboard cores and have wood veneers on the outer surfaces. They measure eight and one-half (8 ½) feet in length, seven and nine-sixteenths (7 9/16) inches in width and five-eighths (5/8) of an inch in thickness.

The faces of the panels have three (3) millimeter wide slits cut continuously down the length at five (5) millimeter intervals. The backs of the panels have two (2) millimeter wide slits cut continuously down the length at one and one-fourth (1¼) inch intervals. The fiberboard core has holes of approximately eight (8) millimeters in diameter drilled from the back and spaced at frequent, regular intervals. The back surface is covered with a black mat laminated to the wood veneer. The slits cut into the face penetrate the fiberboard core and intersect with the holes drilled into the core. The edges of the panels are tongued and grooved.

The Customs Service is advised that the country of manufacture is Canada.

ISSUE

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the above-described wood panels ?

LAW AND ANALYSIS

The federal agency responsible for initially interpreting and applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is the U.S. Customs Service.

See 19 U.S.C. 1500 (West 1999) (providing that the Customs Service is responsible for fixing the final appraisement, classification and amount of duty to be paid); See also 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); See generally, What Every Member of The Trade Community Should Know About: Tariff Classification, an Informed Compliance Publication of the Customs Service available on the World Wide Web site of the Customs Service at www.customs.gov, search “Importing & Exporting” and then “U.S. Customs Informed Compliance Publications.”

General Rule of Interpretation 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” General Rule of Interpretation 1. General Rule of Interpretation 1 further states that merchandise which cannot be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation, provided the HTSUSA chapter headings or notes do not require otherwise. According to the Explanatory Notes (EN), the phrase in GRI 1, “provided such headings or notes do not otherwise require,” is intended to “make it quite clear that the terms of the headings and any relative Section or Chapter Notes are paramount.” General Rules for the Interpretation of the Harmonized System, Rule 1, Explanatory Note (V).

The Explanatory Notes constitute the official interpretation of the Harmonized System at the international level. See Joint Explanatory Statement supra note 1, at 549. The Explanatory Notes, although neither legally binding nor dispositive of classification issues, do provide commentary on the scope of each heading of the HTSUS. The EN’s are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989); Lonza, Inc. v. United States, 46 F. 3rd 1098, 1109 (Fed. Cir. 1995).

Commencing classification of the Decoustics Solo® wood panels, in accordance with the dictates of GRI 1, the Customs Service examined the headings of the HTSUSA. Heading 4418, HTSUS, provides for the classification of “Builder’s joinery and carpentry of wood, including cellular wood panels and assembled parquet panels; shingles and shakes.” (Emphasis added).

The Explanatory Notes to heading 4418, HTSUS, offer a general description of “cellular wood panels” and provide a non-exhaustive listing of merchandise intended to be encompassed within the phrase. Explanatory Note 44.18 provides, in part:

This heading also covers cellular wood panels which are somewhat similar in appearance to the blockboard and battenboard described in the Explanatory Note to heading 44.12, but battens or laths forming the core are spaced one from the other, either parallel or in lattice form. In certain cases the panels may consist of facing sheets separated by an internal frame at the edges only. The interstices may be packed with sound-insulating or heat resisting material (e.g., cork, glass wool, wood pulp, asbestos). The facing sheets may be of solid wood, particle board or similar board, fiberboard or plywood, and the panels (like those in heading 44.12) may be faced with base metal. Panels of this kind are relatively light but strong and are used for partitions, doors and sometimes in the manufacture of furniture. (Emphasis added).

Customs notes, as is provided in the EN’s, that cellular wood panels of heading 4418, HTSUSA, are only “somewhat similar” in appearance to blockboard and battenboard. It is further noted that they “may,” but do not of necessity, have to consist of facing sheets separated by an internal frame at the edges and that they “may,” but again do not of necessity, have to be packed with sound-insulating or heat resistant material.

The Customs Service considers it important to understand that the phrase “cellular wood panels” is not a term of trade uniformly utilized throughout the domestic wood industry. Different parts of the U.S. wood industry manufactures or uses “cellular wood panels” fashioned for many different applications. The appellation of the different “cellular wood panels” is a reflection of specialized areas of the wood industry. The aspect of the domestic wood industry that focuses on sound insulation or modulation generally refers to this merchandise as “acoustic panels.” The part of the wood industry that manufactures doors refers to their merchandise as “hollow panel” doors.

Customs has highlighted two different elements of the wood industry and the terms of the trade used by those elements. It should not, however, be concluded that these are the only two aspects of the U.S. wood industry that use different terms of the trade for merchandise that Customs has determined meets the tariff understanding of the phrase “cellular wood panels” and is properly classified in heading 4418, HTSUSA.

The initial responsibility of the Customs Service is to examine the plain meaning of the statutory text. See Marcor Dev. Corp. v. United States, 926 F. Supp. 1124, 1129 (C.I.T. 1996) citing Trans-Border Customs Services v. United States, 843 F. Supp. 1482, 1485 (C.I.T. 1994). If the plain language of the heading establishes the clear and unambiguous intent of Congress, the classification inquiry at the heading level is complete. See Id. The meaning of a tariff term, absent contrary congressional intent, is one that is in accord with its common and popular understanding. See Carl Zeiss, Inc. v. United States, 195 F. 3rd 1375, 1379 (Fed. Cir. 1999). The Customs Service, to fully understand the common and commercial meaning of what was intended by congress when it used the word “cellular,” will rely on its own understanding of the word and will also consult lexicographic and scientific authorities, dictionaries and other reliable sources of information. See C.J. Tower & Sons v. United States, 673 F.2d 1268 (C.C.P.A. 1982); Precision Specialty Metals, Inc. v. United States, 116 F. Supp. 1350 (C.I.T. 2000).

The essence of the phrase “cellular wood panel,” as used in the tariff schedule and as described in the Explanatory Notes, indicates to Customs that the merchandise properly classified in heading 4418, HTSUS, is wood panels that have one or multiple “cells.” “Cellular, as defined in Webster’s II New Riverside University Dictionary, means “1. Relating to or resembling a cell. 2. Made of or containing a cell or cells.” Webster’s II New Riverside University Dictionary, The Riverside Publishing Company (1984). The Webster’s New Collegiate Dictionary defines “cellular” as meaning “of, relating to or consisting of cells” and “containing cavities.” Webster’s New Collegiate Dictionary, G. & C. Merriam Company (1977). The Solo® wood panels meet the definition of being made of cells. The perforations drilled from the backside of the panel that intersect with the slits on the face constitute cells and warrant the panel being designated as “cellular.”

Reference to the Tariff Schedule of the United States (TSUS) and the International Trade Commission (ITC) conversion investigation from the TSUS to the HTSUSA lends further support to Customs position. A review of the ITC conversion investigation, Conversion of the Tariff Schedules of the United States Annotated into the Nomenclature Structure of the Harmonized System, Report on Investigation No. 332-131, Annex II, Cross-Reference From Present TSUSA to Converted Tariff Schedule (USITC publication 1400, June 1983) See also Conversion of the Tariff Schedules of the United States Annotated into the Nomenclature Structure of the Harmonized System, Annex III, Cross-Reference From Converted Tariff Schedule to Present TSUSA, Report on Investigation No. 332-131 (USITC publication 1400, June 1983). suggests that subheading 4418.90.4000, HTSUSA, Subheading 4418.90.4000, HTSUSA, is subheading 4418.90.4590, HTSUSA, in the 2002 tariff schedule. was a direct conversion from TSUS item 245.6000. See 4418.90.4590, HTSUSA, Infra.

Schedule 2, Part 3, headnote 1(d) of the TSUS provides a description of the merchandise identified as “cellular wood panels.” Headnote 1(d) provides, in part,

Cellular panels: Rigid assemblies bonded together with adhesive substances with both sides or faces consisting of veneer, plywood, lumber, wood-veneer panels, hardboard, wood particle board or other board composed of vegetable fibers, and with a core of hollow, honeycomb, or sponge-like construction, whether or not the interstices are filled with loose or loosely matted fibrous material. See Tariff Schedules of the United States Annotated (1985), Supplement 3 (USITC Publication 1610).

Customs review of TSUS headnote 1(d) of Part 3, Schedule 2, enables the agency to better understand the merchandise identified, but not described as “cellular wood panels” in heading 4418, HTSUSA. It further supports Customs conclusion that merchandise classified as cellular wood panels in heading 4418, HTSUSA, is broader than the basic description set forth in EN 44.18. Referencing headnote 1(d), the Solo® wood panels are similar to the panels with a honeycomb core.

Heading 4418, HTSUSA, specifically provides for the merchandise subject to this request for Internal Advice. Heading 4418, HTSUSA, provides for “cellular wood panels,” eo nomine, that is by name. Continuing the classification of Decoustics’ Solo® wood panels, the panels are classified in subheading 4418.90.4590, HTSUSA. Subheading 4418.90.4590, HTSUSA, provides for:

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

Other:

Other,

Other.

Decoustics suggests that its Solo® wood panels are properly classified in heading 4412, HTSUSA, and offers a number of arguments. Heading 4412, HTSUSA, provides for the classification of “Plywood, veneered panels and similar laminated wood.”

Decoustics initially references the Explanatory Notes to heading 4412, HTSUSA. Explanatory Note 44.12 provides, in part,

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 worked at the surface, the edge or the end, 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 the products the essential character of articles of other headings. (Emphasis added).

The importer suggests that its panels are merely “perforated” and, therefore, comport with the description of veneered panels classified in heading 4412, HTSUSA.

Customs would agree that the holes drilled into Decoustics’ panels constitute “perforations.” Webster’s New Collegiate Dictionary defines “perforated” to mean, “having a hole or series of holes.” Webster’s New Collegiate Dictionary, G. & C. Merriam Company (1977). Nevertheless, the perforations in conjunction with the slits create an engineered cellular acoustical environment that gives the panels the essential character of “cellular wood panels” of heading 4418, HTSUSA.

The importer, in an effort to suggest that its merchandise is properly classified in heading 4412, HTSUSA, directs Customs attention to the Explanatory Notes to heading 4410, HTSUSA. The EN’s to heading 4410, HTSUSA, provide that heading 4410, HTSUSA, does not apply to “Veneered particle board and similar board (for example, oriented strand board and waferboard), whether or not with holes running internally from end to end (heading 44.12).”

Decoustics suggests that its Solo® wood panels are similar to veneered particle board with or without holes running internally from end to end that they are properly classified in heading 4412, HTSUSA. It is Customs determination, as previously explained, that Decoustics’ product is not similar to and is, in fact, a more complex product than veneered particleboard classified in heading 4412, HTSUSA.

Heading 4412, HTSUS, provides for the classification of “Plywood, veneered panels and similar laminated wood.” Decoustics’ Solo® wood panels are manufactured beyond simple veneered panels. The importer’s merchandise is manufactured with cells which removes it from classification as a veneered panel of heading 4412, HTSUSA, and warrants its classification in heading 4418, HTSUSA. Explanatory Note 44.12 supports this determination by providing that “This heading also excludes:(b) Cellular wood panels(heading 44.18).

Decoustics, in its submission of July 11, 2001, directs the Customs Service to a United States Department of Agriculture publication entitled The Wood Handbook. Available on the World Wide Web site of the U.S. Forest Service at www.fpl.fs.us/documents/FPLGTR/fplgtr113/fplgtr113.htm. The importer suggests that merchandise described in chapter 11 as “structural sandwich construction” is the merchandise that is properly denominated as “cellular wood” products.

The Wood Handbook describes “structural sandwich construction” as “a layered construction formed by bonding two thin facings to a thick core.” The handbook additionally provides that “[t]he core, which is made of a weak and low density material, separates and stabilizes the thin facings and provides most of the shear rigidity of the sandwich construction.”

The manner of construction described in The Wood Handbook for structural sandwich construction indicates that a core is formed and then facings or veneers are applied to the core. The Customs Service, subsequent to a review of the tariff schedule and the Explanatory Notes, is not able to conclude that this is the only method of manufacturing a cellular wood product. It is Customs determination that merchandise identified as “cellular wood panels” and properly classified in heading 4418, HTSUSA, may also be produced by initially manufacturing the panel and subsequently creating the cells. This is the process used to manufacture Decoustics’ Solo® wood panels.

HOLDING

The Decoustic Solo® wood panels are classified in subheading 4418.90.4590, Harmonized Tariff Schedule of the United States Annotated.

The General Column 1 Rate of Duty is three and two-tenths (3.2) percent, ad valorem.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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See also:

• Tariff No.: 4418.90.40 - Builders' joinery and carpentry of wood, including cellular wood panels, nesi
• Tariff No.: 4418.90.45 - Builders' joinery and carpentry of wood, including cellular wood panels, nesoi