United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2004 HQ Rulings > HQ 966435 - HQ 966560 > HQ 966511

Previous Ruling Next Ruling
HQ 966511




July 22, 2004

CLA-2 RR:CR:TE 966511 RH

CATEGORY: CLASSIFICATION

TARIFF NOS.: 4409.10.0500; 4409.20.0500; 4418.90.4590

Port Director
Bureau of Customs and Border Protection
40 South Gay Street
Baltimore, MD 21202

RE: Protest Number 1303-03-100102; Flooring; What Constitutes Parquet; Laminated Flooring; Heading 4409; Heading 4418; Heading 4421; Boen Hardwood Flooring, Inc. v. United States, Slip Op. 03-4 (January 7, 2003)

Dear Sir:

This is our decision on the Application for Further Review (AFR) of lead protest number 1303-03-100102, filed by the law firm of Stein, Shostak, Shostak & O’Hara, on behalf of Junckers Hardwood, Inc.

The protest is against Customs & Border Protection’s (“CBP”) classification and liquidation of six 2002 entries of assembled flooring and wide board flooring under subheading 4418.90.4590 of the Harmonized Tariff Schedule of the United States (“HTSUS”).

In January and February 2002, the protestant entered six shipments of assembled flooring under subheading 4409.10.2000, HTSUS, and subheading 4409.20.2560, HTSUS, at the Port of Baltimore.

On November 19 and 20, 2002, CBP at Baltimore issued two Notices of Action (Customs Form 29), advising the protestant that the correct classification of the merchandise was under subheading 4418.90.4590, HTSUS, resulting in a rate advance. CBP liquidated the entries on January 31, 2003.

The protestant alleges that the flooring is classified, depending on the species of wood, under subheading 4409.10.20, HTSUS, or subheading 4409.20.25, HTSUS. Alternatively, the protestant argues that the flooring is classifiable under subheading 4418.30.0000, HTSUS, as parquet panels, or as edge-glued lumber under subheading 4418.90.2000, HTSUS.

The protestant timely filed the AFR on April 25, 2003, and further review of the protest is warranted pursuant to 19 CFR §§174.24 and 174.25.

FACTS:

The instant AFR covers two flooring products. The first product is a flooring board composed of two rows of solid wood strips edge-glued with a double dovetail joint. All of the individual wood strips, except merbau, measure 64.5 mm in width (about 2 ½ inches) and 467.5 mm or 623.5 mm in length (about 18 or 24 inches). The strips made from merbau are finger-joined and measure 308.0 mm, 408.0 or 474.0 mm in length (about 12, 16 or 19 inches). In the condition as imported, the edge-jointed wood flooring boards measure 13.8 mm or 21.8 mm in thickness (about ½ or 1 inch), 129.0 mm in width (about 5 inches), and 900.0 mm, 1830.0 mm or 3700.0 mm in length (about 35, 72 or 146 inches). Each board is tongued and grooved on the edges and ends. The protestant refers to this product as “assembled flooring.”

The second wood flooring product is a plank made from a solid piece of wood (may also be end-jointed – finger-jointed) tongued and grooved on the edges and ends. In the condition as imported, the subject flooring planks have the same dimensions as the edge-jointed flooring described above. The protestant refers to this product as “wide board.”

The two flooring products can be installed with the “floating” clip system or by a traditional nail-down method.

On May 28, 2003, we met with counsel and the protestant’s representatives at which time they advised us that both products are sold in the United States as “solid hardwood flooring”, not as parquet flooring. This information is consistent with the invoice descriptions of the products submitted with the entries under protest.

ISSUE:

Is the wood flooring classifiable under heading 4409, HTSUS, heading 4418, HTSUS, or heading 4421, HTSUS?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order.

Heading 4409 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, ends or faces, whether or not planed, sanded, or finger-jointed.”

Prior to 2002, heading 4409 specifically provided for wood that was continuously worked or shaped along any of its edges or faces, but the heading was silent with regards to wood that was shaped on its ends. In 2002, heading 4409 was amended to include wood that was continuously shaped along any of its edges, ends or faces. For that reason, Customs classified solid wood flooring that was tongued and grooved on the sides but not the ends under heading 4409. Before 2002, Customs always classified solid wood flooring that was tongued and grooved on both the edges and ends under heading 4418, as builder’s joinery and carpentry of wood. See HQ 965083, dated June 22, 2001. Since the instant protest covers only 2002 entries, the allegations made by counsel concerning the liquidation of pre-2002 entries under heading 4418, HTSUS, will not be addressed.

The primary argument raised by counsel is that the “wide board” and “assembled flooring” are properly classified, depending on the wood species, under subheading 4409.10.20, HTSUS, or subheading 4409.20.25, HTSUS, which provide eo nomine at the 8-digit level for “wood flooring.” To support this claim, counsel argues that the imported wood falls squarely within the tariff provisions for “wood flooring” and that it is specially designed, manufactured and dedicated to be used only as wood flooring.

We agree with counsel that the merchandise at issue is flooring, and that the “wide plank” flooring is classifiable under heading 4409, HTSUS, but not under the subheading claimed. We disagree that the “assembled” flooring is classified in heading 4409, HTSUS.

Counsel’s argument that the flooring is classifiable under heading 4409, HTSUS, by referring to an eight-digit subheading provision, is based upon a misapplication of the GRIs. GRI 6, HTSUS, provides as follows:

For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

To ensure that uniformity can be maintained at the subheading level, GRIs 1 to 5 govern classification to subheading levels within the same heading. After determining the appropriate heading in accordance with the first five rules, we then apply the GRIs again, to the appropriate subheading.

When making comparisons of subheadings, we compare the same level six-digit to six-digit, or eight-digit to eight-digit subheading, also taking into consideration section and chapter notes at the subheading level, unless the context otherwise requires.

Applying GRI 6 to the instant case, heading 4409 is broken down at the six-digit level according to whether the wood is “Coniferous” under subheading 4409.10, HTSUS, or “Nonconiferous” under subheading 4409.20, HTSUS. Subheading 4409.10.05 provides for “Wood continuously shaped along any of its ends, whether or not also continuously shaped along any of its edges or faces, all the foregoing whether or not planed, sanded or end-jointed.” The remaining comparable provision, “Other”, meaning other than shaped wood of subheading 4409.10.05, HTSUS, is subdivided into several eight-digit provisions. For example, subheading 4409.10.20, HTSUS, provides for “Other, Wood flooring.”

As the “wide board” coniferous wood flooring is tongued and grooved on the edges and ends, it is accurately described by subheading 4409.10.05, HTSUS. The 8-digit provision under “Other” claimed by counsel is not reached. Accordingly, pursuant to GRI 6, the “wide board” coniferous flooring is classifiable under subheading 4409.10.05, HTSUS. The same rationale applies to the “wide board” nonconiferous flooring under subheading 4409.20, HTSUS. That merchandise is classifiable at the 8-digit level under subheading 4409.20.05, HTSUS.

With regard to the assembled flooring, the court in Boen Hardwood Flooring, Inc. v. United States, Slip Op. 03-4 (January 7, 2003), recently addressed the classification of laminated flooring claimed to be classified in subheading 4409.20.25, HTSUS. In that decision, the court stated:

The suggested characterization, “wood flooring,” does not appear in heading 4409, HTSUS; rather, it is a subheading listed under heading 4409. Heading 4409, HTSUS, mentions only shaping operations, and it is clear from the Chapter Note and Explanatory Note that merchandise falling under heading 4412, may have been subjected to any of these shaping operations.

Finally, heading 4409, HTSUS, addresses only shaping and planing operations, while heading 4412, HTSUS, encompasses products which have been subjected to lamination operations as well as shaping processes. Heading 4909, HTSUS, therefore does not provide a complete and accurate description of the subject merchandise.

Additionally, the Boen court addressed the same argument presented by the protestant in this case - that a “board” made up from several smaller strips or friezes does not prevent its classification in heading 4409, HTSUS.

In response to that argument, the Boen court found that Plaintiff’s reliance on cases decided under the TSUS and prior Tariff Acts was misplaced. The court found that:

[O]ther definitions of “timber,” “lumber,” “board,” and “plank” strongly suggest that these terms refer to relatively unprocessed single-layer wood pieces, cut and shaped by the sawmill for use in carpentry and construction, rather than to composite panels. The subject merchandise is distinct from such wood products, as it has been not only sawn and shaped, but layered, laminated, and finished into a final product.

Boen at 15.

In the instant case, the “assembled flooring”, like the laminated flooring in Boen, is not completely and accurately described by heading 4409, HTSUS. Heading 4409, HTSUS, addresses only shaping and planing operations, while the flooring at issue has been assembled, i.e., edge glued with a double dove tail joint.

Furthermore, 44.09 EN exclusion (b) states that heading 4409 excludes:

Wood which has been mortised or tenoned, dovetailed or similarly worked at the ends and wood assembled into panels being builder’s carpentry of joinery (e.g., parquet flooring panels made up from parquet flooring blocks, strips, etc., whether or not on a support of one or more layers of wood) (heading 44.18).

The two products at issue are assembled wood panels. Heading 4418, HTSUS, provides for “Builders’ joinery and carpentry of wood, including cellular wood panels and assembled parquet panels; shingles and shakes.”

Counsel argues that the flooring is classified under subheading 4418.30.00, HTSUS, which eo nomine provides for “Parquet Panels.”

Neither the legal text nor the EN define or describe the term “parquet”. Under
these circumstances, a term should reflect its common meaning which is normally the same as that which is used in trade. When used in the nomenclature a term usually reflects its common meaning.

The Explanatory Notes to heading 4418, HTSUS, state, in pertinent 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.

Counsel states that the general definitions of “parquet” simply define it as a “patterned floor.” We researched the term “parquet” and conclude that both the common and commercial understanding of the term “parquet” flooring requires that the flooring be laid down in distinct patterns.

For example, in the Merriam-Webster’s Dictionary OnLine (www.Merriam-WebsterOnLine.com), the term “parquet” is defined as “a patterned wood surface (as flooring or paneling)”. In The Oxford English Dictionary, 2nd Ed. (1989), Clarendon Press, Oxford, page 251, the term “parquet” is defined as follows:

Parquet: 1. A flooring, spec. a wooden flooring composed of pieces of wood, often of different kinds, arranged in a pattern;

In The Complete Dictionary of Wood (1989) Dorset Press, “parquet” is defined as:
surfaces formed of small pieces of varied coloured woods, and usually in geometrical designs. Often applied to floors.

These definitions are reflected in various industry definitions. At Wood Floors OnLine (www.woodfloorsonline.com) we find the following definition:

PARQUET - A patterned floor.

Similarly, we find the following description and definition of parquet flooring at Weldon Flooring Ltd. (www.weldon.co.uk/parquetry.htm):

The term parquet originated in France and was first used to describe the raised area behind a balustrade which consisted of a more elaborate floor. The definition of parquet is "flooring of thin hardwood laid in patterns on a wooden sub floor”.

Excerpts from the American Heritage Talking Dictionary (1997) read:
par·quet n. 1. A floor made of parquetry. 2. The art or process of making parquetry.
n.pl. par·quet·ries. Inlay of wood, often of different colors, that is worked into a geometric pattern or mosaic and is used especially for floors.

The Wood Flooring Manufacturers Association, at their website, www.nofma.org, defines the term parquet flooring as follows:

Parquet Flooring – Mosaic hardwood flooring patterns made of small size flooring units. Patterns may be rectangular, square, or of irregular shapes which abut to form a floor covering.

The Hardwood Information Center website, www.hardwoodinfo.com, states that hardwood flooring comes in three basic types:

STRIP flooring accounts for the majority of installations. Strips usually are 2-1/4 inches wide, but also come in widths ranging from 1-1/2 inches to 3-1/4 inches. They are installed by nailing to the subfloor.

PLANK flooring boards are at least 3 inches wide. They may be screwed to the subfloor as well as nailed. Screw holes can be covered with wooden plugs.

PARQUET flooring comes in standard patterns of 6” x 6” blocks. Specialty patterns may range up to 36” square units. Parquet often achieves dramatic geometric effects of special design patterns.

Essential to both the lexicographic and commercial definitions of “parquet” is the requirement that parquet flooring consists of patterns. By contrast, the flooring products under examination are assembled strips in standard sizes (in long lengths of 3700/1830/900 mm) that are ready for installation in the same manner as strip flooring. This flooring is not patterned: The strips are not geometrically arranged, nor are they apparently designed to produce any patterned arrangement. They are simply parallel strips. Therefore, we conclude that these products are not classifiable in subheading 4418.30, HTSUS, as parquet panels.

Clearly, there is a distinction between strip flooring and parquet flooring. In the United States, the term “parquet” refers to flooring composed of short pieces of assembled wood strips or friezes that form a pattern, i.e., mosaic, herringbone, basket, Hungarian, etc. On the other hand, wood flooring panels of assembled strips in standard sizes that are ready for installation in the same manner as strip flooring are not parquet flooring of subheading 4418.30, HTSUS.

We are aware of the distinction provided in the Explanatory Note to the EU’s Combined Nomenclature (CN) subheading 4418.30.10 in which parquet panels for patterned or “mosaic floors” are distinguished from parquet panels which are not designed to be laid out in a pattern. We note that the text of subheading 4418.30 refers to “parquet panels”, which certainly may include mosaic floors. However, the assembly of two strip flooring boards by edge-gluing does not create parquet flooring of this subheading. Given the common and commercial understanding of the term, i.e., that parquet is a product in which a distinct pattern is the key element, such edge-glued strip flooring does not answer to the subheading’s description as parquet panels.

We are also cognizant of the Harmonized System Committee’s decision, by a vote of 20 to 10, at its 33rd session that certain flooring panels not exhibiting a mosaic design are classified in subheading 4418.30. Annex G/7to HSC Document NC0845E1, May 2004. Accordingly, once the decision is deemed approved by the Council of the WCO pursuant to Article 8 of the HS Convention, we will be asking the International Trade Commission to initiate a 1205 investigation pursuant to 19 U.S.C. 3005 seeking amendment to the HTS in order to conform it to the Committee’s decision.

However, in the United States, only flooring elements laid out in patterns other than parallel array are eligible for classification in subheading 4418.30, HTSUS. If we adhered to the protestant’s view, all flooring would be classified as parquet. As it stands, chapter 44 provides no legal definition and an incomplete EN description. As a result, how the flooring is commercially known will determine classification.

Lastly, the protestant asserts that if CBP determines that the “assembled” flooring is not classifiable under subheading 4418.30, HTSUS, then it should be classified as “Edge-glued lumber” under subheading 4418.90.20, HTSUS.

This claim is also without merit. In HSC/31 May 2003, the Harmonized System Committee issued a classification opinion on edge-glued wood. In that opinion, the Committee found that edge-glued wood [wood for general use, not shaped] is classifiable under heading 4421.90, HTSUS. In the present case, the facts are distinguishable. The boards are shaped on the edges and ends dedicating them to flooring use and are more appropriately described as builder’s joinery and carpentry of wood under heading 4418, HTSUS.

Based on the foregoing, we find that the Port of Baltimore correctly classified the “assembled” strip flooring under subheading 4418.90.4590, HTSUS.

Finally, you identify other countries that you state classify the merchandise in the same provision as does the protestant. As you are aware, this matter is currently before the Harmonized System Committee for consideration, and we believe that is the appropriate forum for relevant U.S. comments. HOLDING:

The protest should be DENIED in full. The assembled flooring is classifiable under subheading 4418.90.4590, HTSUS. The wide board flooring is classifiable under subheading 4409.10.0500, HTSUS, or 4409.20.0500, HTSUS. Both the assembled and wide board flooring are classifiable under the general column one rate at 3.2 percent ad valorem.

A copy of this decision should be attached to the Form 19, which is sent to the protestant. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision.

No later than sixty days from the date of this letter, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cpb.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon

Previous Ruling Next Ruling

See also: