# 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."[^1]

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]{.underline} 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**:

(b) 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*, 2^nd^ 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.

> **par·quet·ry**
>
> 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](http://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](http://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 33^rd^ 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](http://www.cpb.gov/), by means of the Freedom of
Information Act, and other methods of public distribution.

Sincerely,

### Myles B. Harmon

Director, Commercial Rulings Division

[^1]: 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.