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HQ 964798





July 31, 2002

CLA-2 RR:CR:TE 964798 jsj

CATEGORY: CLASSIFICATION

TARIFF NOS.: 4412.14.3070
4412.29.5500
4418.30.0000

Area Port Director
Area Port of Jacksonville
U.S. Customs Service
2831 Talleyrand Avenue
Jacksonville, Florida
32206

Port File No.: PRO-4:APD:JAX:FO GM
Attn: Team 442

RE: Application For Further Review of Protest, Lead Protest No.: 1803-00-100171; Protests in Suspense at the Port: 1803-00-100169, 1803-00-100170, 1803-00-100172, 1803-00-100173, 1803-00-100174; Plywood; Veneered Wood; Laminated Wood; Boen Hardwood Flooring v. United States; Parquet Panels; Subheadings 4412.14.3070, 4412.29.5500 and 4418.30.0000, HTSUSA (1999).

Dear Area Port Director:

The purpose of this correspondence is to address the Application for Further Review of Protest Number: 1803-00-100171, dated September 15, 2000. The Importer of Record and Protesting Party is Georgia Flooring Distributors (Georgia Flooring). The Protestant is represented by counsel.

The Customs Service issued a Notice of Action (Customs Form 29) on May 4, 2000, to Georgia Flooring. The Notice of Action advised the Importer that Customs had taken a rate advance on the Georgia Flooring entry in issue concluding that the merchandise was properly classified in subheading 4412.14.3070, HTSUS (1999). The Importer entered the merchandise in subheadings 4409.20.2530 and 4409.20.2560, HTSUS (1999).

The Importer, subsequent to receipt of the Notice of Action, filed a protest challenging Customs rate advance. Georgia Flooring’s protest was accompanied by an Application for Further Review (AFR) that was approved.

A review of Customs Automated Commercial System (ACS) records 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 the following: (1) A review of the Protest filed by Georgia Flooring; (2) A review of the Customs Protest and Summons Information Report; (3) A review of the Notice of Action; (4) A review of Customs Request for Information (Customs Form 28) dated March 29, 2000, addressing three different Georgia Flooring entries which have been protested and which protests are in suspense; (5) A review of the response of Georgia Flooring to Customs Request for Information; (6) A review of Trevo Wood Floors

Trevo Wood Floors is the manufacturer of the merchandise imported by Georgia Flooring. marketing literature; An examination of nine samples of the merchandise in issue with the surface veneers identified as: Wheat (Quercus Ruba), American Oak Natural, Autumn Harvest, Brazilian Cherry (Humenea), Brazilian Oak, Santos Oak, American Maple, Auburn and Brazilian Cherry (Tineido); and (7) A review of Customs Service laboratory reports: 4-1999-11131, 4-1999-11132, 4-1999-11133, 4-1999-11134, 4-1999-11135, 4-2000-30065, 4-2000-30066, 4-2000-30067, 4-2000-30068 and 4-2000-30069.

FACTS

The merchandise in issue is wood flooring. The wood flooring subject to this protest is of three types.

Plywood Wood Flooring

The first type of wood flooring, for which samples were provided, is plywood flooring. This flooring is three (3) inches wide and five-sixteenth (5/16) of an inch thick. It is tongued and grooved along the edges and ends. The boards are composed of five or seven plies of veneer laminated together with the grain of each ply running at an angle to the grain of the succeeding ply. No ply exceeds six (6) millimeters in thickness.

The face ply and the finish of the boards vary. The face plies are all nonconiferous species of wood and none is a “tropical wood,” as identified in Chapter 44, Subheading Note 1, HTSUS.

Veneered Panel Wood Flooring

The second type of wood flooring is veneered panel wood flooring. No samples of this merchandise were provided.

This flooring, identified as a part of the “Elegance” collection, consists of boards measuring seven and one-half (7 ½) inches wide and five-sixteenths (5/16) of an inch thick. No ply exceeds six (6) millimeters in thickness. The merchandising literature describes this product as having a real wood veneer laminated over a high-density fiberboard core. The face veneer of this product is neither coniferous nor identified as a “tropical wood” in Subheading Note 1 of Chapter 44, HTSUS.

Parquet Panel Wood Flooring

The third type of flooring is parquet panels. Customs laboratory report 4-2000-30065 advises that this article consists of seven plies of wood, with no ply exceeding six (6) millimeters in thickness. The board is tongued and grooved on its edges and ends.

The face ply is of the Hymenaea Parvifolia SPP. It is a nonconiferous wood not listed as a “tropical wood” in Subheading Note 1, Chapter 44, HTSUS.

Significant to this merchandise is the fact that the face ply consists of two edge-glued veneer strips.

Customs laboratory report 4-2000-30066 advises that this article consists of multiple plies of wood, with no ply exceeding six (6) millimeters in thickness. The board is tongued and grooved on its edges and one end.

The face ply is of the Pterogyne Nitens SPP. It is a nonconiferous wood not listed as a “tropical wood” in Subheading Note 1.

Significant to this merchandise is the fact that the face ply consists of three edge-glued veneer strips.

The Customs Service is advised that the country of manufacture of all of the merchandise subject to this protest is Brazil.

ISSUE

Did the Customs Service properly issue the Notice of Action taking a rate advance based on the Customs Service Import Specialist’s conclusion that the Importer of Record and Protestant had improperly classified the above-described merchandise pursuant to the Harmonized Tariff Schedule of the United States Annotated ?

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 2, 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).

Plywood Wood Flooring

Commencing classification of the plywood wood flooring, in accordance with the dictates of GRI 1, the Customs Service examined the headings of the HTSUSA. Heading 4412, HTSUS, provides for the classification of “[p]lywood, veneered panels and similar laminated wood.” Explanatory Note 44.12 provides, in part, that:

This heading covers:

Plywood consisting of three or more sheets of wood glued and pressed one on the other and generally disposed so that the grains of successive layers are at an angle; this gives the panels greater strength and by compensating shrinkage, reduces warping. Each component sheet is known as a “ply” and plywood is usually formed of an odd number of plies, the middle ply being called the “core”.

The plywood wood flooring subject to this protest meets the description of plywood of heading 4412, HTSUS. The merchandise consists of five or seven sheets of wood that are glued or laminated together. The plies of the plywood wood flooring, in this instance, are “cross-laminated” See What You Should Know About Trevo, Trevo Wood Floors, marketing literature. meaning that they are “glued together with the grains of adjacent layers at right angles.” Boen Hardwood Flooring, Inc. v. United States, Slip Op. 02-21, F. Supp. (Ct. Int’l Trade 2002). See also HQ 951832 (Feb. 10, 1993), HQ 950606 (April 15, 1992) and HQ 089315 (Sept. 17, 1991).

Continuing the classification of Georgia Flooring plywood wood flooring at the subheading level pursuant to GRI 1 as employed through GRI 6, the product is classified in subheading 4412.14.3070, HTSUSA (1999). Subheading 4412.14.3070, HTSUSA, (1999) provides for:

Plywood, veneered panels and similar laminated wood:

Plywood consisting solely of sheets of wood, each ply not exceeding 6 mm in thickness: Other, with at least one outer ply of nonconiferous wood:

Not surface covered, or surface covered with a clear or transparent material which does not obscure the grain, texture or markings of the face ply: Other,

Other.

The Georgia Flooring plywood wood flooring is made of plywood with no ply exceeding six millimeters in thickness. The outer ply is of a nonconiferous wood. The product is not surface treated or if it is surface treated it is covered with a clear or transparent material that does not obscure the grain, texture or markings of the face ply.

Veneered Panel Wood Flooring

Commencing classification of the veneered panel wood flooring, in accordance with the dictates of GRI 1, the Customs Service again examined the headings of the HTSUSA. Heading 4412, HTSUS, as previously addressed, provides for the classification of “[p]lywood, veneered panels and similar laminated wood.” Explanatory Note 44.12 also provides, in part, that veneered panels 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 plastic) is also classified here provided it is the veneer which gives the panel its essential character.

The significant aspect of EN 44.12, as it addresses “veneered panels,” is that the veneer of wood need not be affixed to wood as required of plywood, but may be affixed to other substances, including, for example, plastic.

The veneered panel wood flooring subject to Georgia Flooring’s protest meets the definition of veneered panels of heading 4412, HTSUS. Georgia Flooring’s veneered panel wood flooring product is “a veneered panel [that] consists of a layer of wood of uniform thicknesswhich may be spliced or otherwise attached at the edges to make a larger piece, laminated onto a foundation of an inferior wood (or other material), and manufactured in flat rectangular, distinct sections, most likely of a standardized size.” See Boen Hardwood Flooring, supra. at . The Georgia Flooring product has a core of high-density fiberboard.

Continuing the classification of Georgia Flooring plywood wood flooring at the subheading level pursuant to GRI 1 as employed through GRI 6, the product is classified in subheading 4412.29.5500, HTSUSA (1999). Subheading 4412.29.5500, HTSUSA, (1999) provides for:

Plywood, veneered panels and similar laminated wood:

Other, with at least one outer ply of nonconiferous wood: Other:

Other.

The Georgia Flooring veneered panel wood flooring is made of a high-density fiberboard core, which precludes it from being plywood, and has at least one outer ply of a nonconiferous wood.

Georgia Flooring’s Contentions

Counsel for Georgia Flooring suggests that the merchandise Customs has classified as plywood wood flooring and veneered panel wood flooring in heading 4412, HTSUS, should be classified in heading 4409, HTSUS. Heading 4409, HTSUS, provides for the classification of:

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.

Counsel specifically suggests that the Georgia Flooring merchandise is not laminated and is “nonconiferous wood flooring which is specifically provided for at HTSUS item 4409.20.25 free of duty.” Georgia Flooring Distributors, Protest, Item 7, supplemental attachment.

Customs initially notes that counsel’s suggestion that the merchandise is not laminated is simply not correct. Georgia Flooring’s response to Customs Request for Information (CF 28) states that the merchandise is laminated and the Trevo Wood Floors merchandising literature also states that the merchandise is laminated.

Georgia Flooring’s suggestion that the merchandise is properly classified in subheading 4409.20.25, HTSUS (1999) as “nonconiferous wood flooring” is a misapplication of the General Rules of Interpretation. See Harmonized Tariff Schedule of the United States, General Rule of Interpretation 1(providing, in part, that “classification shall be determined according to the terms of the headings.”) Subheading 4409.20.25, HTSUS, (1999) does provide for the classification of “nonconiferous wood flooring,” but the nonconiferous wood flooring of heading 4409, HTSUS, must initially meet the terms of heading 4409, HTSUS, that is, it must initially be “wood.”

Heading 4409, HTSUS, begins with the word “wood” and then further describes processes that may be done to the wood. The “wood” that is referred to in heading 4409, HTSUS, is “timber.” Heading 4409, HTSUS, as described in the Explanatory Notes covers “timber, particularly in the form of boards, planks, etc.” Explanatory Note 44.09. Timber, as described in The Wood Handbook, U.S. Department of Agriculture (1974), Available on the World Wide Web site of the U.S. Forest Service at www.fpl.fs.us/documents/FPLGTR/fplgtr113/fplgtr113.htm. G-6, is the “product of a saw mill not further manufactured than by sawing, resawing, passing lengthwise through a standard planing machine, crosscutting to length, and matching.” See also Boen Wood Flooing, supra.

The merchandise imported by Georgia Flooring is not “wood” as intended for classification in heading 4409, HTSUS. It is not a single layer product of a saw mill, but rather a multiple layer product accurately described as either plywood or veneer panels of heading 4412, HTSUS.

It has been suggested by counsel for the Protestant that Chapter 44, Note 4, lends support for the argument that plywood and veneered panel wood flooring is properly classified in heading 4409, HTSUS. Chapter 44, Note 4 provides:

Products of heading 4410, 4411 or 4412 may be worked to form the shapes provided for in respect of the articles of heading 4409, curved, corrugated, perforated, cut or formed to shape other than square or rectangular or submitted to any other operation, provided it does not give them the character of articles of the other headings. (Emphasis added).

The error in this reasoning is that articles properly classified in headings 4410, 4411 or 4412, HTSUS, may be continuously shaped or otherwise worked as provided for merchandise of heading 4409, HTSUS, but articles of heading 4409, HTSUS, may not be multiple ply and laminated or glued. Merchandise classified in heading 4409, HTSUS, is a single layer wood product, not a multiple ply laminated product. The multiple ply and laminated nature of the Georgia Flooring merchandise is the aspect of the merchandise that gives it “the character of articles of the other headings,” namely heading 4412, HTSUS. Id.

Parquet Panel Wood Flooring

The merchandise described in Customs laboratory reports 4-2000-30065 and 4-2000-30066, unlike the plywood wood flooring and the veneer panel wood flooring, has face plies that consist of two and three edge-glued veneer strips. The Customs Service, at the time Georgia Flooring’s merchandise was imported with the intent to unlade, See 19 C.F.R. 141.1 (providing, in part, that “[d]uties and liability for their payment accrue upon imported merchandise on arrival of the importing vessel within a Customs port with the intent then and there to unlade.”) classified this merchandise in heading 4418, HTSUS. The reasoning underlying the classification of laminated wood flooring panels with a face of multiple veneer strips, as opposed to a single veneer, in heading 4418, HTSUS, was based in part on a classification decision of the Customs Co-operation Council. See Generally HQ 964239 (Nov. 14, 2000) (explaining Customs prior reasoning). See also HQ 962031 (Feb. 17, 1999) (classifying laminated wood flooring with a face of multiple veneer strips in heading 4418, HTSUS).

The Customs Service, subsequent to the importation of Georgia Flooring’s merchandise, has revoked its prior decisions. See HQ 964565 (May 14, 2001). Although Customs presently classifies the merchandise in heading 4412, HTSUS, at the time of Georgia Flooring’s importation the merchandise was classified in heading 4418, HTSUS. Georgia Flooring’s laminated wood flooring with a face veneer of multiple veneer strips is classified in subheading 4418.30.0000, HTSUSA. Subheading 4418.30.0000, HTSUSA, provides:

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

4418.30.0000 Parquet panels.

HOLDING

The protest of Georgia Flooring Distributors, Inc. is DENIED-IN-PART and GRANTED-IN-PART.

Plywood Wood Flooring

The Georgia Flooring Distributors, Inc. plywood wood flooring is classified in subheading 4412.14.3070, Harmonized Tariff Schedule of the United States Annotated (1999).

The General Column 1 Rate of Duty is eight (8) percent, ad valorem.

Veneered Panel Wood Flooring

The Georgia Flooring Distributors, Inc. veneered panel wood flooring is classified in subheading 4412.29.5500, Harmonized Tariff Schedule of the United States Annotated (1999).

The General Column 1 Rate of Duty is free.

Parquet Panel Wood Flooring

The Georgia Flooring Distributors, Inc. laminated wood flooring with faces
of multiple veneer strips is classified in subheading 4418.30.0000, Harmonized Tariff Schedule of the United States Annotated (1999).

The General Column 1 Rate of Duty is free.

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,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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