HQ H023500

September 5, 2008

CLA-2: OT:RR:CTF:TCM H023500 KSH

CATEGORY: Classification

TARIFF NO.: 4412.29.36

Port Director

U.S. Customs and Border Protection

Port of Charleston

200 East Bay Street

Charleston, SC 29401

RE: Application for Further Review of Protest 1601-07-100191

Dear Port Director:\
\
This is in reply to your correspondence forwarding Application for
Further Review of Protest (AFR) 1601-07-100191, filed by McGuire Woods,
LLP, on behalf of its client Tarkett Wood, Inc. The protest is against
Customs and Border Protection's (CBP) classification and liquidation of
one entry of wood flooring panels under the Harmonized Tariff Schedule
of the United States (HTSUS).

FACTS:

On June 21, 2006, protestant entered the merchandise subject to this
protest in heading 4418, HTSUS, which provides for: "Builders' joinery
and carpentry of wood, including cellular wood panels and assembled
parquet panels." On July 13, 2006, CBP issued a request for information
requesting samples, whether the flooring panels are composed of solid
wood and whether they are tongue and grooved. Protestant replied that
the flooring panels are "not

solid wood". Rather, protestant stated that the merchandise is a three
layer engineered tongue and grooved wood panel with a face layer of oak
or ash, a core of fir and a bottom layer of either fir or pine. Based
upon protestant's response, CBP issued a notice of action on October 11,
2006, to reclassify the merchandise in heading 4412, HTSUS, which
provides for: "Plywood, veneered panels and similar laminated wood." The
merchandise was liquidated in heading 4412, HTSUS, on November 13, 2006.

On May 8, 2007, protestant filed a protest and application for further
review against the classification and liquidation of the merchandise in
heading 4412, HTSUS. Protestant's AFR request was denied on November 26,
2007. Protestant filed a request to set aside the denial of the
application for further review on December 12, 2007. Protestant's
request was granted on January 3, 2008. The protest was timely filed
pursuant to 19 U.S.C. 1514(c)(3) and 19 C.F.R. 174.12(e)(1).

In support of protestant's application for further review, protestant
alleges that the protest involves questions of fact and law, which have
not been ruled upon by CBP or by the courts and that the decision is
inconsistent with court decisions and Headquarters Ruling Letter (HQ)
966511, dated July 22, 2004. See 19 C.F.R. 174.24(a) and (b). Further
review is warranted pursuant to 19 CFR §§174.24(a) and 174.25.

According to CBP Laboratory Reports #SV 20061660, dated August 22, 2006,
#SV20061658, dated September 26, 2006 and #SV20061655, dated August 22,
2006, the merchandise at issue is plywood of tongue and grooved
construction. The face ply is oak or ash which measures 3.5 mm in
thickness and 65 mm in width. The face ply has been coated with a clear
material which does not obscure the grain, texture or markings of the
face ply. The core is composed of 9 mm thick strips of wood placed
parallel to each other. The bottom ply is composed of spruce and
measures 1 mm in thickness. The core layer is perpendicular to the face
and back plies. The flooring panels do not exhibit a pattern.

ISSUE:

Whether the flooring panels are classified in heading 4412, HTSUS, as
plywood or heading 4418, HTSUS, as assembled parquet panels.\
\
LAW AND ANALYSIS:\
\
Classification of goods under the HTSUS is governed by the General Rules
of Interpretation (GRI). GRI 1 provides that classification shall be
determined according to the terms of the headings of the tariff schedule
and any

relative section or chapter notes. In the event that the 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. While neither legally binding nor dispositive,
the EN provide a commentary on the scope of each heading of the HTSUS
and are generally indicative of the proper interpretation of the
headings. It is CBP's practice to follow, whenever possible, the terms
of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg.
35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

4412. Plywood, veneered panels and similar laminated wood:

> 4418 Builders' joinery and carpentry of wood, including cellular wood
> panels and assembled parquet panels:
>
> Explanatory Note 44.12 provides, in part, that:
>
> This heading covers:\
> \
> (1) **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 heading also covers plywood panels or veneered panels, used as
> flooring panels, and sometimes referred to as "parquet flooring".
> These panels have a thin veneer of wood affixed to the surface, so as
> to simulate a flooring panel made up of parquet strips.

The heading also **excludes** :

\* \* \*

> (c)  Cellular wood panels and assembled parquet panels or tiles
> including those consisting of parquet strips assembled on a support of
> one or more layers of wood (**heading 44.18**).

\* \* \*

> 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.

\* \* \*

The heading **does not cover** :

> (a)  Plywood panels or veneered panels, used as flooring panels, which
> have a thin veneer of wood affixed to the surface, so as to simulate a
> flooring panel made up of parquet strips (**heading** **44.12**).

\* \* \*

> Protestant contends that the flooring panels are parquet flooring
> classified

in heading 4418, HTSUS. Protestant argues that heading 4418, HTSUS, is a
more specific provision than heading 4412, HTSUS, inasmuch as the
provision for parquet panels is more difficult to satisfy than the
provision for plywood. Citing to *Millenium Lumber Distribution Ltd., v.
United States*, Slip. Op. 07-56, protestant states that its merchandise
is identifiable and fixed as part of a floor and is used solely for use
in assembling a floor. Protestant also cites to the World Customs
Organization Compendium of Classification Opinions which classified
assembled parquet flooring in heading 4418, HTSUS. Protestant refers to
HQ 966511, dated July 22, 2004, which classified assembled flooring
which was not multilayered in heading 4418, HTSUS, as support for
classification in heading 4418, HTSUS. Lastly, protestant cites to
Chapter 44, Additional U.S. Note 4(b), which states that "Heading 4418
includes ...multi-layer assembled flooring panels having a face ply of 4
mm or more in thickness." Though Additional U.S. Note 4(b) did not
become effective until after the merchandise was entered, protestant
argues that the U.S. note is nevertheless instructive.

Protestant discounts the Court of Appeals for the Federal Circuit's
decision in *Boen Harwood Flooring, Inc. United States*, 357 F. Supp.3d
1262 (2004) because the Court did not address classification in heading
4418, HTSUS. However, we note that the Court did recognized that CBP
initially classified the merchandise in heading 4418, HTSUS, but later
abandoned that

claim. *Id.* at 1263. Moreover, although the Court is required to give
deference to CBP's classification decisions, *see* [*Bauer Nike Hockey
U.S.A., Inc. v. United States*, 393 F.3d 1246, 1249-50 (Fed. Cir.
2004)](https://www.lexis.com/research/buttonTFLink?_m=ee37bf8f1548b82ac3d8a9e60391d874&_xfercite=<cite cc%3D"USA"><!%5BCDATA%5B491 F.3d 1334%5D%5D><%2Fcite>&_butType=3&_butStat=2&_butNum=19&_butInline=1&_butinfo=<cite cc%3D"USA"><!%5BCDATA%5B393 F.3d 1246%2C 1249%5D%5D><%2Fcite>&_fmtstr=FULL&docnum=5&_startdoc=1&wchp=dGLbVlb-zSkAt&_md5=14c16513983380108299d2e5f79cfc45),
it is nonetheless ultimately \"charged with the duty to reach the
correct \[classification\] decision.\" [*Better Home Plastics Corp. v.
United States*, 119 F.3d 969,
971](https://www.lexis.com/research/buttonTFLink?_m=ee37bf8f1548b82ac3d8a9e60391d874&_xfercite=<cite cc%3D"USA"><!%5BCDATA%5B491 F.3d 1334%5D%5D><%2Fcite>&_butType=3&_butStat=2&_butNum=20&_butInline=1&_butinfo=<cite cc%3D"USA"><!%5BCDATA%5B119 F.3d 969%2C 971%5D%5D><%2Fcite>&_fmtstr=FULL&docnum=5&_startdoc=1&wchp=dGLbVlb-zSkAt&_md5=a4c920c88cf7eba690c6ec80ad1db19c)
(CIT 1997) (quoting [*Rollerblade*, 112 F.3d at
484](https://www.lexis.com/research/buttonTFLink?_m=ee37bf8f1548b82ac3d8a9e60391d874&_xfercite=<cite cc%3D"USA"><!%5BCDATA%5B491 F.3d 1334%5D%5D><%2Fcite>&_butType=3&_butStat=2&_butNum=21&_butInline=1&_butinfo=<cite cc%3D"USA"><!%5BCDATA%5B112 F.3d 481%2C 484%5D%5D><%2Fcite>&_fmtstr=FULL&docnum=5&_startdoc=1&wchp=dGLbVlb-zSkAt&_md5=e66a6eeb9e1c2e0b3b386a6548bae459)).

In *Boen*, the Court set forth the characteristics of plywood as
follows:

> \(1\) there must be at least three layers; (2) each layer must be
> arranged at a right angle to its adjacent layer; and (3) the layers
> must be bonded together. There is no requirement that each layer be
> constructed in a certain manner. *Id.* at 1264.
>
> The Court ultimately concluded that the merchandise at issue in
> [Boen]{.underline} was

classified in heading 4412, HTSUS, as plywood. *Id.* The instant
merchandise meets the definition of plywood above. It is constructed of
three layers which are arranged at right angles to each other and bonded
together.

Furthermore, the instant merchandise is described by EN 44.12 as
plywood. It consists of an odd number of plys affixed to a 9 mm core.
While it does not display a pattern typical of "parquet flooring" even
"simulated parquet" flooring is included in heading 4412, HTSUS, as
plywood (EN 44.12). The instant merchandise is like that in HQ 964567,
dated May 14, 2001, in that it consists of a thin veneer of wood affixed
to a core, creating a flooring panel. Veneered flooring remains
classified in heading 4412, HTSUS.

Moreover, the instant merchandise does not meet the terms of heading
4418, HTSUS. Parquet flooring refers to flooring composed of short
pieces of assembled wood strips or friezes that form a pattern, i.e.,
mosaic, herringbone, basket, Hungarian, etc. [See]{.underline} HQ
966511, dated July 22, 2004. Accordingly, it is irrelevant whether
heading 4418, HTSUS, is a more specific provision as the instant
merchandise does not fit the terms of heading 4418, HTSUS. Furthermore,
the fact that the identity of the merchandise as flooring is fixed does
not prevent classification in heading 4412, HTSUS, under *Millenium
Lumber,* *supra*. Heading 4412, HTSUS, also includes flooring. EN 44.12.

The World Customs Organization's classification opinion is not
persuasive as it pertained to the classification of assembled flooring
panels made from solid wood strips. The flooring panels at issue have a
thin veneer affixed to their surface and are therefore not substantially
similar to the merchandise described in the WCO opinion. For the same
reasons, HQ 966511 is not dispositive because the merchandise therein
was also composed of solid wood strips.

Additional U.S. Note 4(b), though not binding for classification herein,
further confirms that multi-layer assembled flooring panels with a face
ply of 4 mm or more in thickness (beginning February 3, 2007 and
forward) are included in heading 4418, HTSUS. The merchandise at issue
exhibits a face ply of 3.5 mm in thickness. Therefore, even if
Additional U.S. Note 4(b) were applicable, the instant merchandise would
still be classified in heading 4412, HTSUS.

HOLDING:

By application of GRI 1, the wood flooring panels are classified in
heading 4412, HTSUS. They are provided for in subheading 4412.29.36,
HTSUS, which provides for: "Plywood, veneered panels and similar
laminated wood: Other, with at least one outer ply of nonconiferous
wood: Other: Plywood: 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." The 2006 general, column one rate
of duty is 8% *ad valorem*. Since the rate of duty under the
classification indicated above is the same as the liquidated rate, you
are instructed to deny the protest in full.

In accordance with Sections IV and VI of the CBP [Protest/Petition
Processing Handbook]{.underline} (HB 3500-08A, December 2007, pp. 24 and
26), you are to mail this decision, together with the CBP 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. Sixty days from the date of
the decision Regulations and Rulings of the Office of International
Trade will make the decision available to CBP personnel, and to the
public on the CBP Home Page on the World Wide Web at www.cbp.gov, by
means of the Freedom of Information Act, and other methods of public
distribution.

> Sincerely,
>
> Myles B. Harmon, Director
>
> Commercial and Trade Facilitation Division