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NY L82292




February 25, 2005

CLA-2-44:RR:NC:2:230 L82292

CATEGORY: CLASSIFICATION

TARIFF NO.: 4418.90.4590

Mr. Douglas P. Beepe
Affiliated Customs Brokers, USA Inc.
193 West Service Road
Champlain, NY 12919

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of wood flooring from Canada; Article 509

Dear Mr. Beepe:

In your letter dated January 19, 2005, you requested a ruling on the status of prefinished wood flooring from Canada under the NAFTA. Your ruling request is being made on behalf of Goodfellow Inc.

You have submitted samples of the unfinished and finished wood flooring in question. The submitted samples are of solid Jatoba flooring and solid Cabreuva flooring, both measuring ¾” thick and 3” wide. The wood flooring strips are tongue and grooved on the edges and the ends. You state that the unfinished wood flooring is imported into Canada from Paraguay and entered under subheading 4409.20, HS. In Canada, the wood flooring is finished and exported to the United States. The finishing process is described as follows:
the unfinished flooring is sanded, one coat of sealer is applied for adhesion, the product is UV cured, another coat of sealer is applied, the second coat of sealer is UV cured, two coats of urethane are applied, the urethane is UV cured. two more coats of urethane are applied, the urethane is again UV cured, the flooring is polished by light sanding, two coats of aluminum sealer are applied, the aluminum sealer is UV cured, two coats of aluminum oxide finish are applied (this ensures the hardness of the finish), the product is UV cured.

Your client, Goodfellow Inc., believes that the finished wood flooring when imported into the United States should be classified under subheading 4418.90.4590, Harmonized Tariff Schedule of the United States Annotated (HTSUS).

The two competing tariff provisions for the subject product are heading 4409, HTSUS, and heading 4418, HTSUS. Heading 4409 provides as follows:

Woodcontinuously 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 end-jointed

Heading 4418 provides as follows:

Builders’ joinery and carpentry of wood, including cellular wood panels and assembled parquet panels

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

The ENs to heading 4409 state as follows:

This heading covers timber, particularly in the form of boards, planks, etc., which, after sawing or squaring, has been continuously shaped along any its edges, ends or faces either to facilitate subsequent assembly or to obtain the mouldings or beadings described in Item (4) below, whether or not planed, sanded, or end-jointed, e.g. finger-jointed

However, the ENs to heading 4409 specifically exclude:

(e) Wood which has been surface worked beyond planning or sanding, other than painting, staining or varnishing (e.g., veneered, polished, bronzed, or faced with metal leaf

The ENs to heading 4418 state as follows:

This heading applies to woodwork used in the construction of any kind of building, etc., in the form of assembled goods or as recognizable unassembled pieces (e.g., prepared with tenons, mortises, dovetails or similar joints for assembly)

The finishing process described above regarding the subject flooring, specifically the application of sealers, urethane, and aluminum oxide, is beyond the processes allowed under heading 4409, HTSUS, that is, planning, sanding, painting, staining, or varnishing. Thus, the finished wood flooring is excluded from heading 4409, HTSUS.

The applicable tariff provision for the finished wood flooring will be subheading 4418.90.4590, HTSUSA, which provides for other builders’ joinery and carpentry of wood. The general rate of duty will be 3.2 percent ad valorem.

General Note 12(b), HTSUS, sets forth the criteria for determining whether a good is originating under the NAFTA. General Note 12(b), HTSUS, (19 U.S.C. § 1202) states, in pertinent part, that

For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if--

(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or

(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--

(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein

Based on the facts provided, the wood flooring described above qualifies for NAFTA preferential treatment, because it will meet the requirements of HTSUSA General Note 12(b)(ii)(A). The wood flooring will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.

Section 134.1(b) of the regulations, defines "country of origin" as the country of manufacture, production, or growth of any article of foreign origin entering the U.S. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the "country of origin" within this part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin.

Section 134.1(j) of the regulations, provides that the "NAFTA Marking Rules" are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g) of the regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules. Section 134.45(a)(2) of the regulations, provides that a "good of a NAFTA country" may be marked with the name of the country of origin in English, French or Spanish.

Part 102 of the regulations, sets forth the "NAFTA Marking Rules" for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 of the regulations, sets forth the required hierarchy for determining country of origin for marking purposes. Paragraph (a) (3) of Section 102.11 states as follows:

Each foreign material incorporated in that good undergoes an applicable change in tariff classification set out in § 102.20 and satisfies any other applicable requirements of that section, and all other applicable requirements of these rules are satisfied.

The unfinished wood flooring from Paraguay imported into Canada and finished in Canada using the process described above has undergone the applicable change in tariff classification (from heading 4409 to heading 4418, HTSUS) set out in paragraph (i) of Section 102.20, Customs Regulations. Thus, the finished wood flooring is a good of Canada for marking purposes.

The holding set forth above applies only to the specific factual situation and merchandise description as identified in the ruling request. This position is clearly set forth in 19 CFR 177.9(b)(1). This section states that a ruling letter is issued on the assumption that all of the information furnished in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect.

This ruling is being issued under the assumption that the subject goods, in their condition as imported into the United States, conform to the facts and the description as set forth both in the ruling request and in this ruling. In the event that the facts or merchandise are modified in any way, you should bring this to the attention of U.S. Customs and Border Protection (CBP) and you should resubmit for a new ruling in accordance with 19 CFR 177.2. You should also be aware that the material facts described in the foregoing ruling may be subject to periodic verification by CBP.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Paul Garretto at 646-733-3035.

Sincerely,

Robert B. Swierupski
Director,

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