HQ 965083

June 22, 2001

CLA-2 RR:CR:TE 965083 jsj

CATEGORY: Classification

TARIFF NO.: 4418.90.4090

Port Director

U.S. Customs Service

2^nd^ & Chestnut Street

Room 102

Philadelphia, Pennsylvania 19106

Attn.: Team 171

Re: Application for Further Review of Protest No.: 1101-00-100164.

Wood flooring; Wood products worked or shaped on edges, faces and ends;
Application of amendments to Explanatory Notes; Headings 4409 and 4418,
HTSUSA.

Dear Port Director:

The purpose of this correspondence is to address the Application for
Further Review of Protest Number: 1101-00-100164, dated August 4, 2000.
The Importer of Record and Protesting Party is Lake Forest Product, Inc.

The Customs Service issued a Notice of Action (Customs Forms 29) to Lake
Forest Product, Inc. (Lake Forest). The Notice of Action is dated April
12, 2000. It indicated that a rate advance was proposed based on the
conclusion of the Customs Service Import Specialist that the Importer
had not properly classified wood flooring from Burma.

The Importer, subsequent to receipt of the Notice of Action, filed a
Protest challenging Customs classification. Lake Forest's Protest
accompanied an Application for Further Review that was approved.

A review of the Protest (Customs Form 19) and the Customs Protest and
Summons Information Report (Customs Form 6445) 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 a review of the
Protest filed on behalf of Lake Forest and the memorandum and
accompanying documents that were made a part of the Protest.

FACTS

The articles in issue are teak flooring from Burma. The flooring
measures either: (1) Three-fourths (¾) of an inch by three-fourths (¾)
of an inch square and either one (1) to four (4) inches in length or six
(6) inches in length; or (2) Three-fourths (¾) of an inch by five and
five-eighths (5 5/8) inches and six to nine feet in length. The flooring
is tongued and grooved on its edges as well as its ends.

ISSUE

Did Customs properly issue the Notice of Action proposing to take a rate
advance based on the Customs Service Import Specialist's conclusion that
the Importer of Record had incorrectly classified the above-described
wood flooring products pursuant to the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) because the merchandise of the subject
entry was tongued and grooved along the edges as well as the ends ?

LAW AND ANALYSIS

The responsibility for interpreting and applying the HTSUSA rests with
the U.S. Customs Service.[^1] 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.[^2] GRI 1 provides that classification decisions are to
be "determined according to the terms of the headings and any relative
section or chapter notes."[^3]

Heading 4418, HTSUSA, provides for "Builders' joinery and carpentry of
wood, including cellular wood panels and assembled parquet panels;
shingles and shakes." *Heading 4418, HTSUSA*. Customs has previously
concluded that this heading, 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 (ie. worked on both the edges or
faces and the ends). *See* HQ 964825 (June 11, 2001), HQ 956363 (Sept.
2, 1994), HQ 955712 (April 20, 1994), HQ 952940 (Mar. 24, 1993) and NY
806603 (Feb. 24, 1995).

Customs based its prior rulings and will base this Protest decision, in
accordance with General Rule of Interpretation 1, on the wording or
nomenclature of heading 4418, HTSUSA. The headings and subheadings, as
well as the General Rules of Interpretation and the Additional U.S.
Rules of Interpretation being congressionally enacted U.S. statutory
law.[^4]

Customs, in addition to reviewing heading 4418, HTSUSA, also examined
heading 4409, HTSUSA. Customs undertook this review because of the
Importer's suggestion that the merchandise is properly classified in
heading 4409, HTSUSA. Heading 4409, HTSUSA, 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 or faces*,
whether or not planed, sanded or finger-jointed." (Emphasis added)
*Heading 4409, HTSUSA*. Heading 4409, HTSUSA, specifically provides for
wood that is continuously worked or shaped along any of its edges or
faces, but the heading is noticeably silent with regards to wood that is
shaped on its ends. The fact that heading 4409, HTSUSA, does not address
wood products that are worked on the ends is significant to Customs
decision in this matter.

Customs, as secondary, non-binding authority, relied on the
interpretation of the HTSUSA headings provided by the Explanatory Notes
(EN) to the Harmonized System (HS). The Harmonized System is the
internationally agreed upon nomenclature or language which establishes a
degree of uniformity or harmonization between the tariff schedules of
all Contracting Parties to Convention on the Harmonized Commodity
Description and Coding System. The United States is a Contracting Party
or signatory to the Convention.

The Explanatory Notes constitute the official interpretation of the
Harmonized System. The Explanatory Notes, although neither legally
binding nor dispositive of classification issues, provide commentary on
the scope of each heading of the HS and are consulted for guidance by
the Customs Service. The EN's are *generally*, but not always,
indicative of the proper interpretation of the Harmonized System. *See*
T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).[^5] *See also Mita
Copystar Am. v. United States* 21 F. 3d 1079, 1082 (Fed. Cir. 1994)
*citing* *Lynteq, Inc. v. United States 976 F. 2d 693, 699 (Fed. Cir.
1992); Jewelpak Corp. v. United States*, 97 F. Supp. 2d 1192 (CIT 2000).

Congress, when it was anticipated that the Tariff Schedule of the United
States (TSUS) would be replaced with the Harmonized Tariff Schedule of
the United States, addressed the status of the Explanatory Notes in a
Joint Committee Report[^6]. Congress stated in the Committee Report:

> The Explanatory Notes constitute the Customs Cooperation Council's
> official interpretation of the Harmonized System. They provide a
> commentary on the scope of each heading of the Harmonized System and
> are thus useful in ascertaining the classification of merchandise
> under the system.[^7]

The Committee Report further advised, however, that the EN's were not
binding on the Contracting Parties to the Convention and as such should
be consulted for guidance, but not "treated as dispositive."[^8]

The Explanatory Notes utilized for guidance purposes by the Customs
Service in previously classifying similar merchandise were EN 44.09 and
EN 44.09 exclusion (b). Explanatory Note 44.09, at the time it was
referenced for guidance, provided:

> This heading covers timber, particularly in the form of boards,
> planks, ect., which after sawing or squaring, has been continuously
> shaped along any of its edges or faces either to facilitate subsequent
> assembly or to obtain the moldings or beadings described in Item (4)
> below, whether or not planed, sanded or end-jointed, e.g.
> finger-jointed (see the General Explanatory Note to this Chapter).
> Continuously shaped wood covers both products with a uniform
> cross-section throughout the length and products having a repetitive
> design in relief. *Explanatory Note 44.09*.

Exclusionary paragraph (b) to EN 44.09 provided:

> The heading also **excludes**:...(b) Wood which has been mortised or
> tenoned, dovetailed or similarly worked at the ends and wood assembled
> into panels being builders' carpentry or joinery (e.g. parquet
> flooring panels made up from parquet flooring blocks, strips, ect.,
> whether or not on a support of one or more layers of wood)(**heading
> 44.18**). *Explanatory Note 44.09 (b)*.

The Customs Service in prior ruling letters classified merchandise
similar to that of Lake Forest in heading 4418, HTSUSA, noting that
neither heading 4409, HTSUSA, nor the EN's to heading 4409, HTSUSA,
addressed wood products that were tongued and grooved along the edges
*and ends*. *See* HQ 956363, HQ 955712, HQ 952940 and NY 806603 *supra*.
Customs additionally took note of exclusionary paragraph (b) of EN 44.09
which suggested that wood "worked at the ends" was builder's joinery and
carpentry and, therefore, properly classified in heading 4418, HTSUSA.

The situation confronted in the instant protest is that the Harmonized
System Committee of the World Customs Organization (WCO) has
subsequently amended the Explanatory Notes. The Harmonized System
Committee of the WCO amended, in particular, Explanatory Note 44.09.[^9]
Explanatory Note 44.09 now reads:

> This heading covers timber, particularly in the form of boards,
> planks, ect., which after sawing or squaring, has been continuously
> shaped along any of its edges or faces either to facilitate subsequent
> assembly or to obtain the moldings or beadings described in Item (4)
> below, whether or not planed, sanded or end-jointed, e.g.
> finger-jointed (see the General Explanatory Note to this Chapter).
> **For the purposes of this heading the term "edges" includes ends.**
> Continuously shaped wood covers both products with a uniform
> cross-section throughout the length and products having a repetitive
> design in relief. (Emphasis added).

Lake Forest, the Importer and Protestant, relying on the amended
Explanatory Notes which now defines the term "edges" to include "ends,"
understandably asserts that its product, which is tongued along one edge
and end, and grooved along the other edge and end, should be classified
in heading 4409, HTSUSA. Lake Forest entered the merchandise in
subheading 4409.20.2560, HTSUSA, which provides for:

4409. 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:

> 4409.20 Nonconiferious:

25. Wood flooring

> 4409.20.2560 Other.

Although Lake Forest's position is reasonable on first reading, its
weakness is two-fold. Initially, heading 4418, HTSUSA, specifically
provides for the merchandise in issue. "Builders' joinery and carpentry
of wood" of heading 4418, HTSUSA, describes wood products that are
continuously worked on the edges, ends and faces. *Heading 4418,
HTSUSA.* Heading 4409, HTSUSA, only describes "\[w\]ood...continuously
shaped...along any of its edges or faces...." *Heading 4409, HTSUSA*.
Secondly, the Explanatory Notes are not law in the United States and
neither the courts nor the Customs Service are bound to follow them if
they are not consistent with the HTSUSA which is, as previously stated,
U.S. statutory law. The EN's, as previously established, only offer
guidance and are not dispositive. The Customs Service is, therefore,
basing is decision on the language of heading 4418, HTSUSA. This office
is not relying on EN 44.09, as amended, to clarify heading 4409 of the
Harmonized Tariff Schedule of the United States.

The Customs Service concludes that the merchandise imported by Lake
Forest is properly classified, pursuant to GRI 1, in heading 4418,
HTSUSA. The correct subheading, pursuant to GRI 6, is subheading
4418.90.4090, HTSUSA. Subheading 4418.90.4090, HTSUSA, provides for:

4418. Builders' joinery and carpentry of wood, including cellular wood
      panels and assembled parquet panels; shingles and shakes:

      90. Other:

          40. Other

4418.90.4090 Other.

Although the reasoning underlying this decision may be inconsistent with
the Harmonized System Committee's amended Explanatory Notes relating to
heading 44.09 of the HS, it is consistent with the Congressionally
intended implementation of heading 4409 and heading 4418 of the
Harmonized Tariff Schedule of the United States Annotated.

It is the decision of Customs, as previously stated, that heading 4418,
HTSUSA, specifically provides for the classification of the merchandise
in issue. Since heading 4418, HTSUSA, specifically provides for the
Burma teak wood flooring, tongued and grooved on the edges and ends, the
Customs Service need not consult the Explanatory Notes to heading 44.09
of the HS for guidance.

The Importer and Protestant specifically notes that the merchandise in
issue is not mortised, tenoned or similarly worked. The Protestant
suggests that since the merchandise is not mortised, tenoned or
similarly worked, that is since the flooring does not have a mortise, a
rectangular cavity, or a tenon on its ends, it is not "continuously
worked." Continuing this analysis to its conclusion, if the merchandise
is not "continuously shaped," then it can not be merchandise of heading
4409, HTSUSA.

Customs' decision in this Protest is not based on the fact that the
merchandise is mortised, tenoned or similarly worked. Customs notes,
however, that tongue and grooving is a recognizable joint for assembly
similar to the exemplars listed in EN 44.18.

The decision in this Protest rests on the conclusion that "end-worked
boards are more advanced than open-ended boards," more similar to
"\[b\]uilders' joinery and carpentry" described in heading 4418, HTSUSA,
and, therefore, more specifically provided for in heading 4418, HTSUSA,
than heading 4409, HTSUSA. *See* HQ 957528 *supra*.

HOLDING

The protest is DENIED in full.

The teak wood flooring from Burma, tongued and grooved on the edges and
ends, at issue in this Protest is classified in subheading 4418.90.4090,
HTSUSA.

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

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,

John Durant, Director

#  Commercial Rulings Division

[^1]: *See* 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 \[hereinafter Joint Explanatory
    Statement\].

[^2]: *See* 19 U.S. C. 1202 (West 1999).

[^3]: GRI 1 further provides that merchandise which can not be
    classified in accordance with the dictates of GRI 1 should be
    classified pursuant to the other General Rules of Interpretation in
    their sequential order.

[^4]: *See* Section 1202 *supra* Note 2.

[^5]: *See generally What Every Member of the Trade Community Should
    Know About: Tariff Classification*, U.S. Customs Service, A Basic
    Level Informed Compliance Publication (2001) *available at* the
    World Wide Web site of the U.S. Customs Service at www.customs.gov,
    click "Importing & Exporting," then search Informed Compliance.

[^6]: *See* Joint Explanatory Statement *supra* Note 1.

[^7]: *Id.*; The Customs Cooperation Council is now generally know as
    the World Customs Organization.

[^8]: *Id.*

[^9]: *See* Amendments to the Nomenclature and to the Explanatory Notes
    to Clarify the Scope of heading 44.09, Annex M/7 to Doc. NC0090B1
    (HSC/23/May 99).