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HQ 965877




December 24, 2002

CLA-2 RR:CR:TE 965877 ttd

CATEGORY: CLASSIFICATION

TARIFF NO.: 4411.19.4000; 4411.29.9000

Port Director
U.S. Customs Service
One East Bay Street
Savannah, GA 31401

RE: Application for Further Review of Protest Number 1703-02-100124; Fiberboard Flooring and Molding; Subheading 4411.19.4000; Subheading 4411.29.9000

Dear Sir:

This is a decision on the application for further review (AFR) of Protest Number 1703-02-100124, timely filed by McKenna & Cuneo, LLP (now McKenna, Long & Aldridge), on behalf of Faus Group, Inc. (Protestant), regarding the tariff classification of fiberboard flooring and molding. The AFR challenges the liquidation of 14 entries of laminated fiberboard flooring and/or molding, entered between January 9 and December 21, 2001, and liquidated on March 8 and April 12, 2002, which were classified under subheading 4411.19.4000 (for flooring) and subheading 4411.29.9000 (for molding) of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The Protestant contends that the subject fiberboard flooring is classifiable in subheading 4418.30.0000 as parquet panels or 4418.90.4500 as other builders’ joinery, or, in the alternative, under subheading 4411.19.3000, HTSUSA, as tileboard. The Protestant further contends that the subject fiberboard molding is classified in subheading 4411.29.2000, HTSUSA, as laminated boards, tongued, grooved or rabbetted continuously along any of its edges and dedicated for use in the construction of walls ceilings or parts of buildings, or, in the alternative under subheading 4418.90.4500, HTSUSA, as other builders’ joinery.

We received a supplemental submission from counsel for the Protestant on November 8, 2002, and met with counsel on November 19, 2002, to discuss the issues in this case. The Protestant also submitted a request for accelerated disposition of this protest via facsimile pursuant to 19 U.S.C. 1515(b) on December 3, 2002. We note that the classification of flooring substantially similar to the subject flooring is presently before the U.S. Court of International Trade, i.e., Witex U.S.A., Inc. v. United States, Court No. 98-02-00360.

The Protestant states that Customs classification of the subject fiberboard flooring under subheading 4411.19.4000, HTSUSA, as other fiberboard and the subject molding under subheading 4411.29.9000, as other fiberboard is erroneous as a matter of law. This AFR involves questions of law or fact not ruled on by the Commissioner of Customs or his designee or by a Customs Court and, therefore, review of this protest is warranted under 19 CFR 174.24(a) and (b).

FACTS:

The merchandise under consideration is described as fiberboard flooring and molding. The flooring is made of high-density fiberboard that is covered by a layer of paper featuring a decorative wood grain or ceramic tile design. A clear laminate of corundum and melamine covers the paper and a layer of melamine backs the underside of the fiberboard. The flooring is manufactured in individual pieces measuring approximately 3.9 feet by 0.9 feet. The flooring is tongued and grooved on its edges as well as its ends.

The molding products are made of medium-density fiberboard that is covered by a layer of paper featuring a wood grain or ceramic tile design. A clear layer of laminate consisting of corundum and melamine covers the paper.

ISSUE:

Whether the fiberboard flooring is classified under subheading 4418.30.0000, HTSUSA, as parquet panels; subheading 4418.90.4500, HTSUSA, as other builders’ joinery; subheading 4411.19.3000, HTSUSA, as tileboard; or subheading 4411.19.4000, HTSUSA, as other fiberboard?

Whether the fiberboard molding is classified under subheading 4411.29.9000, HTSUSA, as surface-covered fiberboard products of a density exceeding 0.5 g/cm3; subheading 4411.29.2000, HTSUSA, as laminated boards, tongued, grooved or rabbetted continuously along any of its edges and dedicated for use in the construction of walls ceilings or parts of buildings; subheading 4418.90.4500, HTSUSA, as other builders’ joinery.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 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.” In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) 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 HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

Heading 4418, HTSUSA, provides for, in pertinent part, “Builders’ joinery and carpentry of wood, including cellular wood panels and assembled parquet panels; shingles and shakes.” The EN to heading 4418 state in part:

This heading also covers parquet strips, etc., assembled into panels or tiles, with or without borders, including parquet panels or tiles consisting of parquet strips assembled on a support of one or more layers of wood. These panels or tiles may be tongued and grooved at the edges to facilitate assembly.

The EN to heading 4418 also provide:

The term "joinery" applies more particularly to builders' fittings (such as doors, windows, shutters, stairs, door or window frames), whereas the term "carpentry" refers to woodwork (such as beams, rafters and roof struts) used for structural purposes or in scaffoldings, arch supports, etc., and includes assembled shuttering for concrete constructional work . . . .

The Protestant first contends that the subject fiberboard flooring is classifiable in subheading 4418.30.0000, HTSUSA, which provides for “Builders’ joinery and carpentry of wood, including cellular wood panels and assembled parquet panels; shingles and shakes: Parquet panels.” We disagree.

In New York Ruling Letter (NY) 890692, dated October 22, 1993, Customs determined that when classified in subheading 4418.30.0000, HTSUSA, “parquet panels” consist of wooden (emphasis added) parquet strips assembled into panels. Likewise, in HQ 964239, dated November 14, 2000, in finding that certain laminated plywood panels used as flooring were not parquet panels, we held that parquet is comprised of solid wood strips. In this case, the subject merchandise is comprised of fiberboard covered with paper and laminate. While the flooring under consideration may have a decorative appearance that resembles parquet, it is not made with solid wood strips. Therefore, the subject laminated fiberboard flooring panels are not parquet strips assembled into panels, and, therefore are not classifiable under subheading 4418.30.0000, HTSUSA, as parquet panels.

Next, the Protestant contends in a supplemental submission, dated November 8, 2002, that the subject fiberboard flooring is classifiable under subheading 4418.90.4500, HTSUSA, as “other builders’ joinery.” To support this claim, the Protestant cites Note 3 to Chapter 44 which provides that “Headings 4414 to 4421 apply to articles of the respective descriptions of particle board or similar board, fiberboard, laminated wood or densified wood as they apply to such articles of wood.” The Protestant also cites Note 4 to Chapter 44, which 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 shapes other than square or rectangular or submitted to any other operation provided it does not give them the character of articles of other headings.

Customs acknowledges that certain types of wood flooring were, at the time of importation of this merchandise, classifiable in heading 4418 as builders’ joinery and carpentry of wood. See HQ 952940, dated March 24, 1993, wherein Customs classified solid oak floor boards which were tongued and grooved on the edges and ends under subheading 4418.90.4090, HTSUSA. See also HQ 955712, dated April 20, 1994, wherein Customs classified surface-finished solid hardwood boards that were tongued and grooved on the edges and ends and used as flooring in subheading 4818.90.4090, HTSUSA. Similarly, we agree that, according to Note 3 to Chapter 44, articles of heading 4418, HTSUSA, may be made of fiberboard. However, we disagree with the Protestant’s argument that the subject fiberboard flooring is classifiable under subheading 4418.90.4500, as other builders’ joinery.

The Protestant maintains that in HQ 965428, dated February 28, 2002, Customs affirmed previous rulings finding that heading 4418, “more accurately than any other heading describes wood products that are tongued along one edge and end, and grooved along the other edge and end.” The Protestant argues that the rulings cited therein (specifically noted that “tongue and grooving is a recognizable joint for assembly similar to the exemplars listed in Explanatory Note 44.18.” See HQ 965083, dated June 22, 2001, wherein Customs cited HQ 964825, dated June 11, 2001, and HQ 956363, dated September 2, 1994, HQ 955712, dated April 20, 1994. Thus, according to the Protestant’s reasoning, in addition to tongued and grooved flooring made of solid wood, fiberboard flooring is also classifiable in heading 4418, HTSUSA. We disagree.

The subject fiberboard flooring is not classifiable under subheading 4418.90.4500, as other builders’ joinery. The flooring at issue, unlike the merchandise classified in both HQ 965428 and HQ 965083 in subheading 4418.90.4090, HTSUSA, is not solid wood flooring but rather fiberboard flooring (emphasis added). Therefore the merchandise in those rulings at the time they were issued, unlike the flooring at issue, was most specifically provided for in heading 4418, HTSUSA, as other builders’ joinery.

We note that as of January 2002, solid wood flooring tongued and grooved on the edges, ends or faces is classified under heading 4409, HTSUSA. Classification of the subject merchandise begins at the four digit level and it is properly classified under the four digit heading that most specifically describes it (emphasis added). Here, the fiberboard flooring is most specifically described as fiberboard of wood or other ligneous materials under heading 4411, HTSUSA. Therefore, under GRI 1, the subject flooring is precluded from classification in heading 4418, HTSUSA, as it is more specifically provided for in heading 4411, HTSUSA.

Heading 4411, HTSUSA, provides for “Fiberboard of wood or other ligneous materials, whether or not bonded with resins or other organic substances.” The EN to heading 4411 states that fiberboard remains classified in heading 4411 “whether or not it has been mechanically worked, surface worked, or covered, and, in addition may be worked to form the shapes provided for in heading 4409, curved, corrugated, perforated or submitted to any other operation provided it does not give them the character of articles of other headings.” See also Note 4 to Chapter 44, HTSUSA, and Additional U.S. Note 1(c) to Chapter 44. We have found in the past that heading 4411 encompasses a wide range of fiberboard products, including those that have undergone fairly extensive processing. See NY F82089, dated February 14, 2000. However, the Protestant asserts that the subject fiberboard flooring is classified in subheading 4411.19.3000, as tileboard. We disagree.

Subheading 4411.19.3000 provides for “Fiberboard of wood or other ligneous materials, whether or not bonded with resins or other organic substances: Fiberboard of a density exceeding 0.8 g/cm3: Other: Other: Tileboard which has been continuously worked along any of its edges and is dedicated for use in the construction of walls, ceilings or other parts of buildings.”

In HQ 960084, dated December 10, 1997, Customs concluded that subheading 4411.19.3000, HTSUSA, does not encompass fiberboard panels principally used as flooring. See also HQ 960028, dated November 3, 1997 and NY A83901, dated June 13, 1996. The Protestant argues that the holding in HQ 960084 is incorrect and that the flooring meets the criteria in subheading 4411.19.3000, i.e., the flooring panels are over 0.8 grams in density, surface covered with a hard finish, continuously worked on the edges and used in the construction of parts of buildings. Thus, counsel claims it should be classified within subheading 4411.19.3000, HTSUSA. For the purposes of this protest, HQ 960084, dated December 10, 1997, (copy enclosed) addresses Customs position on the classification of laminated fiberboard flooring substantially similar to the merchandise under consideration. In HQ 960084, fiberboard flooring panels, substantially similar to the flooring at issue, were classified in subheading 4411.19.4000, HTSUSA, as other fiberboard. Accordingly, we incorporate the LAW AND ANALYSIS section of that ruling in this decision, as it is dispositive of the issue raised in this case.

Concerning the subject fiberboard molding, the Protestant asserts that they are classifiable in subheading 4411.29.2000, as laminated boards, tongued, grooved or rabbetted continuously along any of its edges and dedicated for use in the construction of walls, ceilings or other parts of buildings. We disagree.

In NY H84848, dated August 30, 2001, Customs classified medium density fiberboard moldings used as flooring accessories in subheading 4411.29.9000, HTSUSA, as fiberboard of a density exceeding 0.5 g/cm3 but not exceeding 0.8 g/cm3. In that ruling, we found that the products considered served as decorative trim and not as structural members. See NY D80345, dated September 10, 1998. See also NY E86012, dated September 1, 1999, wherein Customs classified fiberboard moldings in subheading 4411.29.9000, HTSUSA.

In this case, the subject items are moldings made of fiberboard. Like the moldings in NY H84848, the subject moldings are not boards dedicated for use in the construction of walls, ceilings or other parts of buildings. The subject moldings are decorative profiles and not the laminated boards of subheading 4411.29.2000, HTSUSA. Like the merchandise in NY H84848, the subject molding is classified in subheading 4411.29.9000, HTSUSA, as fiberboard of a density exceeding 0.5 g/cm3 but not exceeding 0.8 g/cm3.

In the alternative, the Protestant claims that the moldings at issue should be classified under subheading 4418.90.45, HTSUSA, for the reasons set forth in the discussion concerning the flooring products. Pursuant to our discussion above concerning the subject fiberboard flooring, we disagree.

HOLDING:

The subject fiberboard flooring is classified in subheading 4411.19.4000, HTSUSA, which provides for "Fiberboard of wood or other ligneous materials, whether or not bonded with resins or other organic substances: Fiberboard of a density exceeding 0.8 g/cm3: Other: Other: Other.” The general column one rate of duty is 6 percent ad valorem.

The subject fiberboard molding is classified in subheading 4411.29.9000, HTSUSA, which provides for "Fiberboard of wood or other ligneous materials, whether or not bonded with resins or other organic substances: Fiberboard of a density exceeding 0.5 g/cm3 but not exceeding 0.8 g/cm3: Other: Other: Other.” The general column one rate of duty is 3.9 percent ad valorem.

The protest should be DENIED in full. In accordance with 19 U.S.C. 1515(b) and 19 CFR 174.22, the Protestant has requested accelerated disposition of this protest. Accordingly, you should deny the protest on the merits prior to January 3, 2003, or the protest will be deemed denied. Any additional Applications for Further Review currently being held in abeyance and involving merchandise and issues similar to those of the instant case should be disposed of by your office in a manner consistent with the analysis and holding above. Any reliquidation of the entry or entries in accordance with this decision must be accomplished prior to mailing the decision.

No later than 30 days from December 3, 2002, the Office of Regulations and Rulings will make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act and by other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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