HQ 964798

July 31, 2002

# CLA-2 RR:CR:TE 964798 jsj

CATEGORY: Classification

TARIFF NOS.: 4412.14.3070

4412.29.5500

4418.30.0000

Area Port Director

Area Port of Jacksonville

U.S. Customs Service

2831 Talleyrand Avenue

Jacksonville, Florida

32206

Port File No.: PRO-4:APD:JAX:FO GM

Attn: Team 442

Re: Application For Further Review of Protest, Lead Protest No.:
1803-00-100171; Protests in Suspense at the Port: 1803-00-100169,
1803-00-100170, 1803-00-100172, 1803-00-100173, 1803-00-100174; Plywood;
Veneered Wood; Laminated Wood; *Boen Hardwood Flooring v. United
States*; Parquet Panels; Subheadings 4412.14.3070, 4412.29.5500 and
4418.30.0000, HTSUSA (1999).

Dear Area Port Director:

The purpose of this correspondence is to address the Application for
Further Review of Protest Number: 1803-00-100171, dated September 15,
2000. The Importer of Record and Protesting Party is Georgia Flooring
Distributors (Georgia Flooring). The Protestant is represented by
counsel.

The Customs Service issued a Notice of Action (Customs Form 29) on May
4, 2000, to Georgia Flooring. The Notice of Action advised the Importer
that Customs had taken a rate advance on the Georgia Flooring entry in
issue concluding that the merchandise was properly classified in
subheading 4412.14.3070, HTSUS (1999). The Importer entered the
merchandise in subheadings 4409.20.2530 and 4409.20.2560, HTSUS (1999).

The Importer, subsequent to receipt of the Notice of Action, filed a
protest challenging Customs rate advance. Georgia Flooring's protest was
accompanied by an Application for Further Review (AFR) that was
approved.

A review of Customs Automated Commercial System (ACS) records 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 the following: (1) A
review of the Protest filed by Georgia Flooring; (2) A review of the
Customs Protest and Summons Information Report; (3) A review of the
Notice of Action; (4) A review of Customs Request for Information
(Customs Form 28) dated March 29, 2000, addressing three different
Georgia Flooring entries which have been protested and which protests
are in suspense; (5) A review of the response of Georgia Flooring to
Customs Request for Information; (6) A review of Trevo Wood Floors[^1]
marketing literature; An examination of nine samples of the merchandise
in issue with the surface veneers identified as: Wheat (Quercus Ruba),
American Oak Natural, Autumn Harvest, Brazilian Cherry (Humenea),
Brazilian Oak, Santos Oak, American Maple, Auburn and Brazilian Cherry
(Tineido); and (7) A review of Customs Service laboratory reports:
4-1999-11131, 4-1999-11132, 4-1999-11133, 4-1999-11134, 4-1999-11135,
4-2000-30065, 4-2000-30066, 4-2000-30067, 4-2000-30068 and 4-2000-30069.

FACTS

The merchandise in issue is wood flooring. The wood flooring subject to
this protest is of three types.

## Plywood Wood Flooring

The first type of wood flooring, for which samples were provided, is
plywood flooring. This flooring is three (3) inches wide and
five-sixteenth (5/16) of an inch thick. It is tongued and grooved along
the edges and ends. The boards are composed of five or seven plies of
veneer laminated together with the grain of each ply running at an angle
to the grain of the succeeding ply. No ply exceeds six (6) millimeters
in thickness.

The face ply and the finish of the boards vary. The face plies are all
nonconiferous species of wood and none is a "tropical wood," as
identified in Chapter 44, Subheading Note 1, HTSUS.

## Veneered Panel Wood Flooring

The second type of wood flooring is veneered panel wood flooring. No
samples of this merchandise were provided.

This flooring, identified as a part of the "Elegance" collection,
consists of boards measuring seven and one-half (7 ½) inches wide and
five-sixteenths (5/16) of an inch thick. No ply exceeds six (6)
millimeters in thickness. The merchandising literature describes this
product as having a real wood veneer laminated over a high-density
fiberboard core. The face veneer of this product is neither coniferous
nor identified as a "tropical wood" in Subheading Note 1 of Chapter 44,
HTSUS.

## Parquet Panel Wood Flooring

The third type of flooring is parquet panels. Customs laboratory report
4-2000-30065 advises that this article consists of seven plies of wood,
with no ply exceeding six (6) millimeters in thickness. The board is
tongued and grooved on its edges and ends.

The face ply is of the Hymenaea Parvifolia SPP. It is a nonconiferous
wood not listed as a "tropical wood" in Subheading Note 1, Chapter 44,
HTSUS.

Significant to this merchandise is the fact that the face ply consists
of two edge-glued veneer strips.

Customs laboratory report 4-2000-30066 advises that this article
consists of multiple plies of wood, with no ply exceeding six (6)
millimeters in thickness. The board is tongued and grooved on its edges
and one end.

The face ply is of the Pterogyne Nitens SPP. It is a nonconiferous wood
not listed as a "tropical wood" in Subheading Note 1.

Significant to this merchandise is the fact that the face ply consists
of three edge-glued veneer strips.

The Customs Service is advised that the country of manufacture of all of
the merchandise subject to this protest is Brazil.

ISSUE

Did the Customs Service properly issue the Notice of Action taking a
rate advance based on the Customs Service Import Specialist's conclusion
that the Importer of Record and Protestant had improperly classified the
above-described merchandise pursuant to the Harmonized Tariff Schedule
of the United States Annotated ?

LAW AND ANALYSIS

The federal agency responsible for initially interpreting and applying
the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)
is the U.S. Customs Service.[^2] 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.[^3]

General Rule of Interpretation 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." *General Rule of
Interpretation 1*. General Rule of Interpretation 1 further states that
merchandise which cannot be classified in accordance with the dictates
of GRI 1 should be classified pursuant to the other General Rules of
Interpretation, provided the HTSUSA chapter headings or notes do not
require otherwise. According to the Explanatory Notes (EN), the phrase
in GRI 1, "provided such headings or notes do not otherwise require," is
intended to "make it quite clear that the terms of the headings and any
relative Section or Chapter Notes are paramount." *General Rules for the
Interpretation of the Harmonized System, Rule 1, Explanatory Note (V)*.

The Explanatory Notes constitute the official interpretation of the
Harmonized System at the international level. *See* Joint Explanatory
Statement *supra* note 2, at 549. The Explanatory Notes, although
neither legally binding nor dispositive of classification issues, do
provide commentary on the scope of each heading of the HTSUS. The EN's
are generally indicative of the proper interpretation of the headings.
*See* T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989); *Lonza, Inc. v.
United States*, 46 F. 3^rd^ 1098, 1109 (Fed. Cir. 1995).

## Plywood Wood Flooring

Commencing classification of the plywood wood flooring, in accordance
with the dictates of GRI 1, the Customs Service examined the headings of
the HTSUSA. Heading 4412, HTSUS, provides for the classification of
"\[p\]lywood, veneered panels and similar laminated wood." 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 plywood wood flooring subject to this protest meets the description
of plywood of heading 4412, HTSUS. The merchandise consists of five or
seven sheets of wood that are glued or laminated together. The plies of
the plywood wood flooring, in this instance, are "cross-laminated"[^4]
meaning that they are "glued together with the grains of adjacent layers
at right angles." *Boen Hardwood Flooring, Inc. v. United States*, Slip
Op. 02-21, F. Supp. (Ct. Int'l Trade 2002). *See also* HQ 951832 (Feb.
10, 1993), HQ 950606 (April 15, 1992) and HQ 089315 (Sept. 17, 1991).

Continuing the classification of Georgia Flooring plywood wood flooring
at the subheading level pursuant to GRI 1 as employed through GRI 6, the
product is classified in subheading 4412.14.3070, HTSUSA (1999).
Subheading 4412.14.3070, HTSUSA, (1999) provides for:

4412. Plywood, veneered panels and similar laminated wood:

> Plywood consisting solely of sheets of wood, each ply not exceeding 6
> mm in thickness:

14. Other, with at least one outer ply of nonconiferous wood:

> 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:

30. Other,

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3070. Other.

The Georgia Flooring plywood wood flooring is made of plywood with no
ply exceeding six millimeters in thickness. The outer ply is of a
nonconiferous wood. The product is not surface treated or if it is
surface treated it is covered with a clear or transparent material that
does not obscure the grain, texture or markings of the face ply.

**Veneered Panel Wood Flooring**

Commencing classification of the veneered panel wood flooring, in
accordance with the dictates of GRI 1, the Customs Service again
examined the headings of the HTSUSA. Heading 4412, HTSUS, as previously
addressed, provides for the classification of "\[p\]lywood, veneered
panels and similar laminated wood." Explanatory Note 44.12 also
provides, in part, that veneered panels are:

> panels consisting of a thin veneer of wood affixed to a base, usually
> of inferior wood, by glueing under pressure.
>
> Wood veneered on to a base other than wood (e.g., panels of plastic)
> is also classified here provided it is the veneer which gives the
> panel its essential character.

The significant aspect of EN 44.12, as it addresses "veneered panels,"
is that the veneer of wood need not be affixed to wood as required of
plywood, but may be affixed to other substances, including, for example,
plastic.

The veneered panel wood flooring subject to Georgia Flooring's protest
meets the definition of veneered panels of heading 4412, HTSUS. Georgia
Flooring's veneered panel wood flooring product is "a veneered panel
\[that\] consists of a layer of wood of uniform thickness...which may be
spliced or otherwise attached at the edges to make a larger piece,
laminated onto a foundation of an inferior wood (or other material), and
manufactured in flat rectangular, distinct sections, most likely of a
standardized size." *See Boen Hardwood Flooring*, *supra.* at . The
Georgia Flooring product has a core of high-density fiberboard.

Continuing the classification of Georgia Flooring plywood wood flooring
at the subheading level pursuant to GRI 1 as employed through GRI 6, the
product is classified in subheading 4412.29.5500, HTSUSA (1999).
Subheading 4412.29.5500, HTSUSA, (1999) provides for:

4412. Plywood, veneered panels and similar laminated wood:

Other, with at least one outer ply of nonconiferous wood:

29. Other:

    5500. Other.

The Georgia Flooring veneered panel wood flooring is made of a
high-density fiberboard core, which precludes it from being plywood, and
has at least one outer ply of a nonconiferous wood.

**Georgia Flooring's Contentions**

Counsel for Georgia Flooring suggests that the merchandise Customs has
classified as plywood wood flooring and veneered panel wood flooring in
heading 4412, HTSUS, should be classified in heading 4409, HTSUS.
Heading 4409, HTSUS, provides for the classification of:

> 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.

Counsel specifically suggests that the Georgia Flooring merchandise is
not laminated and is "nonconiferous wood flooring which is specifically
provided for at HTSUS item 4409.20.25 free of duty." *Georgia Flooring
Distributors, Protest*, Item 7, supplemental attachment.

Customs initially notes that counsel's suggestion that the merchandise
is not laminated is simply not correct. Georgia Flooring's response to
Customs Request for Information (CF 28) states that the merchandise is
laminated and the Trevo Wood Floors merchandising literature also states
that the merchandise is laminated.

Georgia Flooring's suggestion that the merchandise is properly
classified in subheading 4409.20.25, HTSUS (1999) as "nonconiferous wood
flooring" is a misapplication of the General Rules of
Interpretation.[^5] Subheading 4409.20.25, HTSUS, (1999) does provide
for the classification of "nonconiferous wood flooring," but the
nonconiferous wood flooring of heading 4409, HTSUS, must initially meet
the terms of heading 4409, HTSUS, that is, it must initially be "wood."

Heading 4409, HTSUS, begins with the word "wood" and then further
describes processes that may be done to the wood. The "wood" that is
referred to in heading 4409, HTSUS, is "timber." Heading 4409, HTSUS, as
described in the Explanatory Notes covers "timber, particularly in the
form of boards, planks, etc...." *Explanatory Note 44.09*. Timber, as
described in *The Wood Handbook*, U.S. Department of Agriculture
(1974),[^6] G-6, is the "product of a saw mill not further manufactured
than by sawing, resawing, passing lengthwise through a standard planing
machine, crosscutting to length, and matching." *See also Boen Wood
Flooing, supra*.

The merchandise imported by Georgia Flooring is not "wood" as intended
for classification in heading 4409, HTSUS. It is not a single layer
product of a saw mill, but rather a multiple layer product accurately
described as either plywood or veneer panels of heading 4412, HTSUS.

It has been suggested by counsel for the Protestant that Chapter 44,
Note 4, lends support for the argument that plywood and veneered panel
wood flooring is properly classified in heading 4409, HTSUS. Chapter 44,
Note 4 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 shape other than
> square or rectangular or submitted to any other operation, *provided
> it does not give them the character of articles of the other
> headings*. (Emphasis added).

The error in this reasoning is that articles properly classified in
headings 4410, 4411 or 4412, HTSUS, may be continuously shaped or
otherwise worked as provided for merchandise of heading 4409, HTSUS, but
articles of heading 4409, HTSUS, may not be multiple ply and laminated
or glued. Merchandise classified in heading 4409, HTSUS, is a single
layer wood product, not a multiple ply laminated product. The multiple
ply and laminated nature of the Georgia Flooring merchandise is the
aspect of the merchandise that gives it "the character of articles of
the other headings," namely heading 4412, HTSUS. *Id.*

**Parquet Panel Wood Flooring**

The merchandise described in Customs laboratory reports 4-2000-30065 and
4-2000-30066, unlike the plywood wood flooring and the veneer panel wood
flooring, has face plies that consist of two and three edge-glued veneer
strips. The Customs Service, at the time Georgia Flooring's merchandise
was imported with the intent to unlade,[^7] classified this merchandise
in heading 4418, HTSUS. The reasoning underlying the classification of
laminated wood flooring panels with a face of multiple veneer strips, as
opposed to a single veneer, in heading 4418, HTSUS, was based in part on
a classification decision of the Customs Co-operation Council.[^8]

The Customs Service, subsequent to the importation of Georgia Flooring's
merchandise, has revoked its prior decisions.[^9] Although Customs
presently classifies the merchandise in heading 4412, HTSUS, at the time
of Georgia Flooring's importation the merchandise was classified in
heading 4418, HTSUS. Georgia Flooring's laminated wood flooring with a
face veneer of multiple veneer strips is classified in subheading
4418.30.0000, HTSUSA. Subheading 4418.30.0000, HTSUSA, provides:

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

> 4418.30.0000 Parquet panels.

HOLDING

The protest of Georgia Flooring Distributors, Inc. is DENIED-IN-PART and
GRANTED-IN-PART.

## Plywood Wood Flooring

The Georgia Flooring Distributors, Inc. plywood wood flooring is
classified in subheading 4412.14.3070, Harmonized Tariff Schedule of the
United States Annotated (1999).

The General Column 1 Rate of Duty is eight (8) percent, *ad valorem*.

## Veneered Panel Wood Flooring

The Georgia Flooring Distributors, Inc. veneered panel wood flooring is
classified in subheading 4412.29.5500, Harmonized Tariff Schedule of the
United States Annotated (1999).

The General Column 1 Rate of Duty is free.

## Parquet Panel Wood Flooring

The Georgia Flooring Distributors, Inc. laminated wood flooring with
faces

of multiple veneer strips is classified in subheading 4418.30.0000,
Harmonized Tariff Schedule of the United States Annotated (1999).

The General Column 1 Rate of Duty is free.

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,

Myles B. Harmon, Acting Director

Commercial Rulings Division

[^1]: Trevo Wood Floors is the manufacturer of the merchandise imported
    by Georgia Flooring.

[^2]: *See* 19 U.S.C. 1500 (West 1999) (providing that the Customs
    Service is responsible for fixing the final appraisement,
    classification and amount of duty to be paid); *See also* 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 \[hereinafter Joint Explanatory
    Statement\].

[^3]: *See* 19 U.S. C. 1202 (West 1999); *See generally, What Every
    Member of The Trade Community Should Know About: Tariff
    Classification*, an Informed Compliance Publication of the Customs
    Service available on the World Wide Web site of the Customs Service
    at www.customs.gov, search "Importing & Exporting" and then "U.S.
    Customs Informed Compliance Publications."

[^4]: *See What You Should Know About Trevo*, Trevo Wood Floors,
    marketing literature.

[^5]: *See Harmonized Tariff Schedule of the United States, General Rule
    of Interpretation 1*(providing, in part, that "classification shall
    be determined according to the terms of the headings....")

[^6]: Available on the World Wide Web site of the U.S. Forest Service at
    www.fpl.fs.us/documents/FPLGTR/fplgtr113/fplgtr113.htm.

[^7]: *See* 19 C.F.R. 141.1 (providing, in part, that "\[d\]uties and
    liability for their payment accrue upon imported merchandise on
    arrival of the importing vessel within a Customs port with the
    intent then and there to unlade....")

[^8]: *See Generally* HQ 964239 (Nov. 14, 2000) (explaining Customs
    prior reasoning). *See also* HQ 962031 (Feb. 17, 1999) (classifying
    laminated wood flooring with a face of multiple veneer strips in
    heading 4418, HTSUS).

[^9]: *See* HQ 964565 (May 14, 2001).