BOEN HARDWOOD FLOORING, INC., Plaintiff,

v. UNITED STATES,

Defendant. Slip Op. 03-4 United States Court of International Trade

Before: Pogue, Judge Court No. 96-08-02006

[Plaintiff’s motion for summary j ud gment denied. Defendant’s cross-motion for summary judgment gr ante d. Judgment entered for Defendant.] Decided: January 7, 2003 Galvin & Mlawski ( John J. Galvin ), Attorney, for Plaintiff. Robert D. McCallum, Jr. , Assistant Attorney General, John J. Mahon , Acting Attorney in Charge, Internationa l Trad e Field Office, Barbara S. Williams , Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice; Yelena Slepak , Of Counsel, Office of Assistant Chief Counsel, International Trade Litigation, U.S. Customs Service, for Defendant.

OPINION Pogue, Judge: Plaintiff Boen Hardwood Flooring, Inc. (“Plaintiff”

or “Boen”) challenges the denial of its protest, fil ed in accordance with section 514 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1514 (1994), against the liquidation of the subjectC OURT N O . 96-08-02006 P AGE 2

1 Liquidation constitutes the final appraisal of the value of imported merchandise and determination of the appropriate classification and rate of duty. See 19 U.S.C. § 1500; 19 C.F.R. § 159.1 (2001). merchandise. 1 Defendant UnitedStates Customs Service (“Defendant”

or “Customs”) classified Plaintiff’s merchandise under heading 4412 of th e Harm onized Tariff Schedule of the United States (1995) (“H TSUS”), as “[p]lywood, veneered panels, and similar laminat e d wood.” Plaintiff contends that the subject merchandise should be liquidatedunder subheading 4409.20.25, HTSUS, as “[n]onconiferous [w]oodflooring.” See Pl.’s Statement of Material Facts Not in Issue at 2 (“Pl.’s Statement of Facts”). Jurisdiction lies under 28 U.S.C. § 1581(a) (1994). This action is before the Court on cross motions for summary judgment made by Plaintiff and Defendant pursuant to USCIT Rule 56. For the

reasons discussed below, the Court finds that the subject merchandise is properly classified under heading 4412.29.50, HTSUS,

as a “veneered panel” and grants su mmary judgment for the defendant.

Undisputed Facts The subject merchandise consists of hardwoodflooring made up of three layers of wood in which the grain of the middle layer is perpendicular to the grain of the two outer layers. See Pl.’s Statement of Facts at 4-5; Def.’s Resp. to Pl.’s Statement ofC OURT N O . 96-08-02006 P AGE 3

2 “Laminate” means “[t]o bond together two or more pieces of wood to make a single piece, using adhesive and pressure.” Random Lengths Publ’ns, Terms of the Trade 192-93 (4th ed. 2000). See also Webster’s II New Riverside University Dictionary 674 (1988) (“Webster’s”) (defining “laminate” as “[t]o make by uniting several layers”) . Material Facts ¶¶ 18-21 (“De f.’ s Resp. to Pl.’s Statement of Facts”). The three layers of the flooring are glued together. See Def.’s Statement of Undisputed Facts ¶ 3; Pl.’s Statement of Facts at 6. Without acknowledging it by explicit agreement, both parties to this action do agree that the subject merchandise has been “laminated.” 2 See Pl.’s Statement of Facts at 6 (stating that the layere dstock from which the merchandise is produced is “glu[ed] under pressure”); Def.’s Statement of UndisputedFacts ¶ 3 (stating that the top and bottom layers of the flooring are glued to the middle layer); Def.’s Mem. Supp. Cross Mot. Summ. J. and Opp’n Pl.’s Mot. Summ. J. at 14-15 (“Def.’s Mem.”) (arguing that the merchandise meets the definition of “laminated ” an d therefore is prop e rly classifiable as “similar laminated wood”), 18 (arguing that the subject merchandise is “highly processed . . . by lamination”); see also Dep. of Thomas L. Goss at 29 (stating that a hydraulic press is used to “put[] pressure and heat down on the [flooring layers] to press [them] together and to get the glue to bond”); Boen Marketing Material, Transform Your World with Boen Hardwood , Collective Ex. A at Specification Suggestions - Materials (stating that “Boen Longstrip shal l be laminated construction”);C OURT N O . 96-08-02006 P AGE 4

3 The parties disagree as to the thickness of the subject merchandise. Plaintiff asserts that it measures 5/8 (or 20/32) inch thick, see Pl.’s Statement of Facts at 4, while defendant asserts that the flooring measures 19/32 inch, a difference of 1/32 inch. Def.’s Resp. to Pl.’s Statement of Facts ¶ 17. The two sample pieces presented to the Court measure approximately 9/16 (or 18/32) and 19/32 inch thick. These discrepancies in the total thickness of the samples do not present a material issue of fact in this action.

4 Plaintiff indicates that the top layer of the flooring is made of hardwoods “such as oak, ash, maple, or merbau.” Pl.’s Statement of Facts at 5. Botanically, hardwoods are angiosperms, which means that “the seeds are encased in the ovary of the flower.” U.S. Dep’t of Agriculture, Forest Service, Forest Prods. Laboratory, Wood Handbook ch.1 at 2 (1999) (“ Wood Handbook ”); see also The American Heritage Dictionary of the English Language 71 (3 rd ed. 1996). Coniferous woods, by contrast, are gymnosperms, meaning that the seeds of the tree are not encased within an ovary. Wood Handbook , ch.1 at 2; American Heritage Dictionary at 808. Spruce is a coniferous wood. See, e.g. , American Heritage Dictionary at 1745. Both parties to this action implicitly acknowledge that the hardwood layer of the subject merchandise is non-coniferous. See Pl.’s Statement of Facts at 2-3 (asserting that the subject merchandise is properly classified as “nonconiferous wood flooring”); Def.’s Resp. to Pl.’s Statement of Facts ¶ 3 (asserting that the subject B oen Hardwood Flooring Floating Floor System Installation Gu ide , Def.’s Ex. 1, (describing the merchandise as “three ply laminate”). The flooring is continuously shaped with tongue and groove along its edges and ends, see Pl.’s Statement of Facts at 7; Def.’s Me m. at 2, and comes in a standard size of 5 1/2 inches wide, 7 feet 2 5/8 inches long, and approximately 5/8 inch thick. 3 See Pl.’s Statement of Facts at 4; Def.’s Resp. to Pl.’s Statement of Facts ¶ 17. The top layer of the flooring is composed of strips of hardwoodmeasuring approximately 1/8 inch th ick an d 2 3/4 inches wide. 4 See Pl.’s Statement of Facts at 5; Def.’s Resp. to Pl.’sC OURT N O . 96-08-02006 P AGE 5

merchandise may be classified as plywood with at least one outer ply of non-coniferous wood).

5 The Court by order of February 25, 2002, Slip Op. 02-21, originally granted Defendant’s motion for summary judgment and denied Plaintiff’s cross-motion. By order of July 30, 2002, the Court granted Defendant’s motion for rehearing and Plaintiff’s cross-motion for rehearing, and withdrew and vacated Slip Op. 02- 21. By order of November 18, 2002, the Court resolved the parties cross-motions for an order specifying that no substantial controversy appears to exist as to the composition and design of the core layer of the subject imported flooring. Statement of Facts ¶ 21. The center layer consists of spruce slats

or strips measuring approximately 5/16 inch thick, 1 1/16 inch wide, and 5 9/16 inch long. The slats or strips are laid lengt hwise with minor but visible spacing between each piece a n d with their grain running perpendicular to the grain of the wood comprising the top and bottom layers. Order of Nov. 18, 2002. 5 The bottomlayer of the flooring is composed of spruce strips, 1/8 inch thick and 2 1/4 to 2 3/4 inches wide. See Pl.’s Statement of Facts at 4; Def.’s Resp. to Pl.’s Statement of Facts ¶ 19. The grain of the bottom layer is perpendicular to the grain of the center layer andparallel to the grain of the top hardwood layer. See Pl.’s Statement of Facts at 5; Def.’s Resp. to Pl.’s Statement of Facts ¶ 20. Parties’ Arguments Plaintiff argues that t he i mported hardwood flooring in question should be classified within heading 4409, HTSUS, “[w]ood (including strips andfriezes for parquet flooring, not assembled)C OURT N O . 96-08-02006 P AGE 6

continuously shaped (tongued, grooved, rebated, chamfered, Vjointed, beaded, molded, rounded or the like) along any of its edges or faces, whether or not planed, sanded or finger-jointed,” and further, under subheading 4409.20.25, HTSUS, “[n]onconiferous [w]oodflooring.” Plaintiff contends that the subject merchandise is properly classifiable under heading 4409, HTSUS, because under prior tariff acts, both wooden flooring and laminated wood, when produced in dimensions found in nature, were classified as lumber products not further manufactured than sawed, planed, tongued, and grooved, rather than as more advanced items. See Pl.’s Mem. at 14. Plaintiff asserts that the subject merchandise is not classifiable

as plywood, veneered panels, or laminated wood because it does not meet the defin itions of these items. See Pl.’s Reply to Def.’s Resp. Opp’n Pl.’s Mot. Summ. J. and Resp. Opp’n Def.’s Cross Mot. Summ. J. at 4-13 (“Pl.’s Reply”). Further, Plaintiff argues that even if the subject merchandise were plywood, veneered panels, or similar laminated wood, it would have the essential character of an itemof heading 4409, HTSUS, and be classifiable thereunder according to the Harmonized Commodity Description and Coding System Explanatory Notes (1st ed. 1986) (“Explanatory Notes”) for heading 4412, HTSUS. See Pl.’s Reply at 13-18. Defendant asserts that the flooring is properl y clas sified

un d er heading 4412, HTSUS, which describes “[p]lywood, veneered panels and similar laminated wood,” and argues that th e floo ringC OURT N O . 96-08-02006 P AGE 7

meets the definition of plywood. Defendant ar gues in the alternative that e ven i f the flooring is not plywood it is still classifiable as “veneered panels” or “sim ilar laminated wood.” Def.’s Mem. at 5. Defendant asserts that the flooring is excluded fromheading 4409, HTSUS, by t he t erms of the headings and the Explanatory Notes, id. at 15-17; that cases decided under the TSUS and e arlier Tariff Acts are not controlling due to the change in statutory language and legislative intent, id. at 18-20; and that the cases do not support the classification of t he sub ject merchandise under heading 4409, HTSUS. Id. at 21-26.

Standard of Review Customs’ classification is subject to de novo review by this Court pursuant to 28 U.S.C. § 2640. The Court employs a two-step process in analyzing a customs classification. “[F]irst, [it] construe[s] the relevant classification headings; and second, [it] determine[s] under which of the properly construed tariff terms the merchandise at issue falls.” Bausch & Lomb, Inc. v. United States , 148 F.3d 1363, 1365 (Fed. Cir. 1998) (citing Universal Elecs., Inc. v. United States , 112 F.3d 488, 491 (Fed. Cir. 1997)). Interpretation of the tariff classification terms is a question of law, while application of the terms to the merchandise at issue is a question of fact. Id. Summary judgment is appropriate where there exists noC OURT N O . 96-08-02006 P AGE 8

genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See USCIT Rule 56(d); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). A dispute is genuine “if the evidence is such that [the trier of fact] could return a verdict for the nonmoving party.” Anderson , 477 U.S. at 248. In a challenge to a tariff classification, summary judgment is appropriate when the dispute involves only the proper classification of the subject merchandise, not the nature of the merchandise itself. Bausch & Lomb, Inc. , 148 F.3d at 1365-66. Where there is a dispute about the nature of the subject merchandise, there exists a genuine issue of material fact and a trial is warranted. In the instant case, the parties agree that the subject merchandise is flooring consisting of a hardwood layer and two softwood layers, glued together with the grains of the pieces forming the center layer laid perpendicular to the grains of the pieces forming the two outer layers. As the parties agree to the essential nature and material characteristics of the merchandise, and disagree only as to its proper classification under the HTSUS, summary judgment of the classification issue is appropriate. Discussion The HTSUS consists of (1) the General Notes; (2) the GeneralC OURT N O . 96-08-02006 P AGE 9

Rules of Interpretation (“GRI”); (3) the Additional U.S. Rules of Interpretation; (4) sections I through XXII (encompassing chapters 1 through 99, including all section and chapter notes, article provisions, and tariff and other treatment accorded thereto); and (5) the Chemical Appendix. Classification of goods under the HTSUS is governed by the General Rules of Interpretation (“GRI”). See Carl Zeiss, Inc. v. United States , 195 F.3d 1375, 1379 (Fed. Cir. 1999); Orlando Food Corp. v. United States , 140 F.3d 1437, 1439 (Fed. Cir. 1998). GRI 1 states that “for legal purposes, cl assifi cation shall be determined according to the terms of the headings and any relativ e sec tion or chapter notes.” GRI 1; see also Orlando Food Corp. , 140 F.3d at 1440. Goods that cannot be classifiedsolely by reference to GRI 1 must be classified by reference to the succeeding GRIs in numerical order. Furthermore, “[a]bsent contrary legis lati ve intent, HTSUS terms are to be construedaccording to their common and commercial meanings, which are presumed to be the same.” Carl Zeiss, Inc. , 195 F.3d at 1379 (internal citation omitted). The Co urt may also refer to the Explanatory Notes, which constitute the World Customs Organization’s official interpretation of the HTSUS. See Baxter Healthcare Corp. of Puerto Rico v. United States , 22 CIT 82, 89 n.4, 998 F. Supp. 1133, 1140 n.4 (1998). Although the Explanatory Notes a re not legally binding, they are useful in ascertaining the correct classification of theC OURT N O . 96-08-02006 P AGE 10

merchandise in question. See Rollerblade, Inc. v. United States , 112 F.3d 481, 486 n. 3 (Fed. Cir. 19 97) (stating that the Expla natory Notes are “intended to clarify the scope of HTSUS subheadings and to offer guidance in interpreting its subheadings”) (citing Mita Copystar Am. v. United States , 21 F.3d 1079, 1082 (Fed. Cir. 1994)); Lonza, Inc. v. United States , 46 F.3d 1098, 1109 (Fed. Cir. 1995) (“While the Explanatory Notes do not constitute controlling legislative history, they do offer guidance in interpreting the HTS[US] subheadings.”) . Determining which heading provides the mos t appropriate classification of mercha ndis e requires close textual analysis of the language of the headings and the accompanying explanatory notes. The General Explanatory Notes to Chapter 44, HTSUS, indicate that the chapter covers “unmanufactured w ood, s emifinishedpr oducts of wood and, in general, articles of wood.” Explanatory Notes at 622. The headings of Chapter 44 are arranged so that less processed items appear earlier in the chapter, while items that have been s ubje cted to further manufacturing appear later. See generally Chapter 44, HTSUS; see also U.S. Customs Service Headquarters Ruling (“HQ”) 963396 (Mar. 28, 2000) (“Chapter 44, HTSUS . . . is structured so that less processed wood appears at the beginning of the chapter followed by more advanced wood in later headings within the same chapter.”); HQ 963655 (Feb. 3, 2000); HQ 961208 (June 1, 1999); HQ 962715 (June 1, 1999). TheC OURT N O . 96-08-02006 P AGE 11

6 The four general categories listed in the General Explanatory Notes to Chapter 44 read as follows: (1) Wood in the rough (as felled, split, roughly squared, debarked, etc.) and fuel wood, wood waste and scrap, sawdust, wood in chips or particles; hoopwood, poles, piles, pickets, stakes, etc.; wood charcoal; wood wool and wood flour; railway or tramway sleepers (generally headings 44.01 to 44.06). However, the Chapter excludes wood, in chips, in shavings, crushed, ground, or powdered, of a kind used primarily in perfumery, in pharmacy, or for insecticidal, fungicidal, or similar purposes ( heading 12.11 ) and wood, in chips, in shavings, ground or powdered, of a kind used primarily in dyeing or in tanning ( heading 14.04 ). (2) Sawn, chipped, sliced, peeled, planed, sanded, end-jointed, e.g., finger-jointed (i.e., jointed by a process whereby shorter pieces of wood are glued together end to end, with joints resembling interlaced fingers, in order to obtain a greater length of wood) and continuously shaped wood (headings 44.07 to 44.09). (3) Particle board and similar board, fibreboard, laminated wood and densified wood (headings 44.10 to 44.13). (4) Articles of wood ( except certain kinds specified in Note 1 to this Chapter and which, together with others, are referred to in the Explanatory Notes to particular headings below) (headings 44.14 to 44.21). General Explanatory Notes explain that items covered by Chapter 44 may be “groupedbroadly” in four general categories, including “(2) [s]awn, chipped, sliced, peeled, planed, sanded, end-jointed, e.g., finger-jointed . . . and continuously shaped wood (headings 44.07 to 44.09),” and “(3) [p]arti cle board and similar board, fibreboard, laminated wood and densified w ood (headings 44.10 to 44.13).” 6 Explanatory Notes at 622. These broad categoriesC OURT N O . 96-08-02006 P AGE 12

Explanatory Notes at 622. separate laminated products from products that are merely shaped.

I. Heading 4409, HTSUS As noted, heading 4409, HTSUS, covers “[w]ood (including strips and friezes for parqu et fl ooring, not assembled) continuously shaped (tongued, grooved, rebated, chamfered, Vjointed, beaded, molded, rounded, or the like) along any of its edges or faces, whether or not planed, sanded, or finger-jointed.” The Explanatory Note for heading 4409, HTSUS, states that

[t]his heading covers timber, particularly in the form of boards, planks, etc., 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 mouldings or beadings described in Item (4) be l ow, whether or not planed, sanded or end-jointed, e.g. finger-jointed. Explanatory Notes at 629. The subject merchandise fits the description in heading 4409, HTSUS, of “[w]ood . . . continuously shaped . . . along any of its edges or faces, whether or not planed [or] sanded.” It is shaped along its edges and ends, and is fitted with tongue and groove in order to facilitate its assembly as flooring. See Dep. of Thomas L. Goss at 35; Pl.’s St atement of Facts at 4, 7; Def.’s Resp. to Pl.’s Statement of Facts ¶ 17; Def.’s Mem. at 2. The initial termsC OURT N O . 96-08-02006 P AGE 13

7 Lumber is defined as “[t]imber sawed into standardized structural members, as boards or planks,” Webster’s at 708; “[a] wood product manufactured from logs by sawing, resawing and, usually, planing, with all four sides sawn. (‘Timber’ is used in place of ‘lumber’ in many countries.),” Terms of the Trade at 205; “[l]ogs that have been sawed and prepared for market,” McGraw-Hill Dictionary of Scientific and Technical Terms 1177 (Sybil P. Parker ed., 5 th ed. 1994); “a collective term for wood that has been sawed into appropriate sizes for building and other uses,” Harcourt Academic Press Dictionary of Science and Technology , available at http://www.harcourt.com/dictionary (“Harcourt”); “[a]n American term for converted wood; also for felled trees prepared for the sawmill. Timber split or sawn for use in building.” Thomas Corkhill, The Complete Dictionary of Wood317 (1979). usedby the Explanatory Note, however, “timber, particularly in the form of boards, planks, etc.,” indicate that heading 4409, HTSUS, contemplates wood material that is less processedthan the subject merchandise. Explanatory Notes at 629. “Timber” is defined in relevant part as “[w]ood as a building material: lumber” 7 or “[a] dressed piece of wood, esp. a beam in a structure,” Webs ter’ s at 1210; “[w]ood used for building, carpentry, or joinery, ” Mc Graw-Hill Dictionary of Scientific and Technical Terms at 2033; “wood, whether growing or cut, especially when suitable for use in construction and carpentry,” Harcourt ;

see also Terms of the Trade at 342 (defining timber as “[a] size classification of lumber that includes pie ces that are at least five inches in their smallest dimension”); Corkhill, The Complete Dictionary of Wood at 583-84 (defining timber as “[w]ood suitable for building and structural purposes . . . . The term is generally usedin a wider sense and includes all kinds and forms of wood,C OURT N O . 96-08-02006 P AGE 14

especially when in bulk. . . . Usually the term implies stuff of large section.”) “Board” is def ined as “[a] piece of lumber whose dimensions are less than 2 inches (5 centimeters) thick and between 4 and 12 inches (10 and 30 centimeters) wide,” McGraw-Hill Dictionary of Scientific and Technical Terms at 246; “[a] long flat slab of sawed lumber: plank ” or “[a] flat piece of rigid material, as wood adaptedfor a special use,” Webster’s at 185; “[a]pplied to converted softwoods over 4 in. wide and less than 2 in. thick, and to hardwoods of any width and up to 1 1⁄4 in. thick.” Corkhill, The Complete Dictionary of Wood at 50. But cf. Terms of the Trade at 36-37 (defining “board” as “[a] piece of lumber less than two inch es in nomi nal thickness and one inch or more in width,” but also as “[a] generic term used to describe various composite panels such as oriented strand board, waferboard, fiberboard, etc.,” and

as “[p ]ape rboard”); Harcourt (defining “board” as “a long, flat, rectangular piece of cut wood that is relatively wide in comparison to its thickness,” but also as “a composition material fabricated in large sheets; for example, plasterboard or fiberboard”). Finally, “plank” is defined as “[a] heavy board with thickness of 2-4 inches (5-10 centimeters) and a width of at least 8 inches (20 centimeters),” McGraw-Hill Dictionary of Scientific and Technical Terms at 1520; “1. a long, flat piece of wood that is thicker than a board. 2. lumber formed into such pieces,”C OURT N O . 96-08-02006 P AGE 15

Harcourt ; “[a] piece of lumber two or more inches thick and six or

more inches wide, designed to be laid flat as part of a loadbearing surface, such as a bridge deck,” Terms of the Trade at 250; “[a] piece of lumber cut thicker than a board,” Webster’s at 899; “[s]quare sawn softwood 2 to 6 in. thick and 11 in. or more in width. There is considerable difference in the limits in different markets. A plank in hardwood is from 1 1⁄2 i n. x 9 i n. and 8 ft. upwards in length.” Corkhill, The Complete Dictionary of Wood at 412. While two definitions of the t erm “board” recognize a more general meaning, see Terms of the Trade at 37; Harcourt , the other definitions of “timber,” “lumber,” “board,” an d “p lank” strongly sugg est that these terms refer to relatively unprocessed singlela yer 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. Plaintiff relies on cases decided under th e T SUS and prior Tariff Acts to argue that continuously shaped wooden flooring and gluedstock, or wooden boards or planks made by glui ng pi eces of wood together, have been consistently treated as if they had been shaped only. In these cases, the court found that the lamination andassembly operations performed on the boards at issue did notC OURT N O . 96-08-02006 P AGE 16

constitute a further manufacturing process or result in a product that was further advanced than boards which had been only shaped, such as planed, tongued, grooved. Under the present tariff

sc hedu les, such treatment would allow laminated products to be classified under heading 4409, HTSUS. P la intiff’s reliance on these cases, however, is misplaced. The cases indicate that glued stock was treatable as lumber, not further manufactured o r ad vanced than sawed, planed, and tongued andgrooved, when (1) the laminated piece was of a size obtainable in nature as one piece in the same species of wood, and(2 ) the gluing operations were performed in order to obtain a larger piece of wood from smaller pieces. In B.A. McKenzie & Co., Inc. v. United States , 39 Cust. Ct. 52 (1957), wood intended for making drawer sides was available in one-piece stock, which was a solid piece of wood, and in two-piece stock, which was a piece o f wood made by dovetailing and gluing together two smaller pieces. Both the one-piece and two-piece stock were of the same size. The court decided that the two-piece

or glued stock was not further manufactured or advanced than the one-piece stock. Th e dovetailing and gluing operations simply createda large r piece of wood from smaller pieces, and did not change the cha racter of the wood as lumber, or a material from wh ich to make finished articles. The Treasury Department later promulgateda notice adopting the principle of the McKenzieC OURT N O . 96-08-02006 P AGE 17

decision by stating that glued stock of a size obtainable in nature was to be treated as lumber. T.D. 54595, 93 Treas. Dec. 204, 205 (1958) (stating that “glued stock, i nclu ding jointed and glued st ock” may be recognized as lumber if “of a length, width, and thic kness which is recognized in the trade as lumber if of one

piece material”). In Border Brokerage Co. v. Uni t ed States , 52 Cust. Ct. 204 (1964), as in McKenzie , the court concluded that one-piece and twopiece wood stock of the same size and intended for the same purpose

were both classifiable as not further manufactured than planed, tonguedand grooved. The two-p iec e stock was assembled through lamination and bullnosing (a planing process) from smaller pieces of wood for the purpose of creating a larger piece. Similarly, the court in D.B. Frampton & Co. v. United States , 60 Cust. Ct. 4 (1968), held that laminated or assembled wood planks which were of

a size obtainable in nature as a solid piece of wood of the same species were classifiable as having not been further manufactured than planed, tongued , an d grooved. Laminating or assembling operations could be performed without bein g h eld to advance the condition of the wood when the purpose of the lamination or

as sembly w as to obtain a larger piece of wood, but one of a size that still could be obtained by cutting a natural log. See also C.B. Smith Co. v . United S tates , 64 Cust. Ct. 278 (1970) (Glued hardwood, whether edge-glued, end-glued, or face-glued, wasC OURT N O . 96-08-02006 P AGE 18

classifiable as lumber if it met the size requirements of the tariff code. The size specifications were adopted in an effort to classify glued stock that is similar to lumber in use and per formance separately from dimension stock, which has differe n t applications than lu mber .); Pacific Hardwood Sales Co. v. United States , 64 Cust. Ct. 68 (1970) (Wood for making drawer sides, producedby edge-gluing numerous smaller strips of w ood, was dimension stock not classifiable as lumber because it did not meet the size requirements of the tariff code for classification as lumber. The court acknowledged that the adoption of the size requirements was rooted in the similarity of glued stock of certain dimensions to lumber in its performance and use.); cf. Clarence S. Holmes, A/C Best Products Mfg. Co. v. United States , 44 Cust. Ct. 111 (1960) (Maple boards wider than 9 inches, produced by edgegluing narrower maple pieces, were held not classifiable under the

same tariff heading as solid maple lumber pieces because solid maple pieces are not produced in widths over nine inches . T he glu ed maple lumber was classified under a heading covering wood that hadbeen further manufactured than lumber but was not yet a finishedarticle.); P.W. Dritt ler v. United States , 52 Cust. Ct. 227, Abstract No. 68213 (1964) (Boards measuring 24 inches wide and eight feet long, made by edge-gluing ten strips of yellow birch,

were further manufactured than sawed, planed, and tongued and grooved. The court declined to follow McKenzie on the grounds thatC OURT N O . 96-08-02006 P AGE 19

th e boards in question were of a size not normally obtainabl e i n nature. The court classified them under a heading covering wood that had been further manufactured than lumbe r but was not yet a finished article.). The holdings of these cases rested on the principle that the glued stock was “no different in essential character and use from the 1-piece material, which was classifiable as sawed lumber, not further manufactured than planed , and tongued, and grooved.” Clarence S. Holmes, A/C Best P roducts Mf g. Co. , 44 Cust. Ct. at 113. These cases involved neither layered products nor gluing operations intended to create a product of greater strength or durability. In the instant case, the purpose of assembling and gluing together separate pieces of wood is not merely to obtain a boardof a different size that is otherwise similar in performance anduse to a solid board. Rather, the purpose is to obtain a wood flooring product that is sup erio r in strength, durability, and resistance to warping to flooring made of single-layer shaped boards. See Dep. of Thomas L. Goss at 36-38 (stating that the use of hardwood for the top layer of the flooring provides durability, while the layered construction and placement of the grains at right angles provides stability, resistance to warping, and strength in the flooring); Def.’s Statement of Facts ¶ 5; Pl.’s Resp. to Def.’s Statement of Undisputed Facts ¶ 5. This purpose is not contemplatedwithin the reasoning of the cases that treatedC OURT N O . 96-08-02006 P AGE 20

assembledand laminated wood products as no more advanced than shaped wood. In an a lternative argument, Plaintiff asserts that the Explanatory Note for heading 4412, H TSUS, and Chapter Note 4, Chapter 44, HTSUS, require the subject merchandise to be classified under heading 4409, HTSUS. Explanatory Note 44.12 states that

the products of this heading may be worked to formthe shapes provided for in heading 44.09, curved, corrugated, perforated, cut or formed to shapes other than square or rectangular or submittedto any other operation provided it does not give t hem the character of articles of other headings. Explanatory Notes at 633. Chapter Note 4 states that

[p]roducts of heading 4410, 4411 or 4412 may be worked to form the shapes provid ed f or in respect of the goods of heading 4409, curved, corrugated, perforated, cut or formed to shapes other than square or rectangular or submittedto any other operation provided it doe s not give them the character of articl e s of other headings. Chapter Note 4, Chapter 44, HTSUS. Plaintiff argues that even if the five-layer stock fromwhich the subject merchandise is produced were classifiable under heading 4 412 , HTSUS, the subject merchandise itself “has been so far advancedas to dedicate it sole ly for use as flooring.” Pl.’s Reply at 16. Plaintiff appears to suggest that because the merchandise is fully manufactured into wood flooring andis usable only for that pur pos e, it has the character of an article ofC OURT N O . 96-08-02006 P AGE 21

another heading, namely heading 4409, HTSUS, which contains a subheading listing “[w]ood flooring.” Plaintiff claims, therefore, that under the Explanatory Note and Chapter Note 4, classification under heading 4412, HTSUS, is precluded. This approach is flawed, however, because it characterizes the merchandise as an article of another heading by referring to the subheadings. The Chapter Note and the Explanatory Note speak of “articles of other hea dings . ” Chapter Note 4, Chapter 44, HTSUS; Expl anatory Notes at 633 (emphasis supplied). The suggested characterization, “wood flooring,” does not appear in heading 4409, HTSUS; r ath er, it is a subheading listed under heading 4409. Heading 4409, HTSUS, mentions only shaping ope ration s, and it is clear from the Chapter Note and Explanatory Note that merchandise falling under heading 4412, HTSUS, 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 ope ration s as well as shaping processes. Heading 4409, HTSUS, therefore does not provide a complete and accurate description of the subject merchandise.

II. Heading 4412, HTSUS. As noted earlier, heading 4412, HT SUS , covers “[p]lywood, veneeredpanels and similar laminated wood,” and the GeneralC OURT N O . 96-08-02006 P AGE 22

Explanatory Notes to Chapter 44 indicate that items covered by heading 4412, HTSUS, may have been subjected also to the processes that characterize the items o f head ing 4409, HTSUS. Explanatory Notes at 621. This is reiterated in Explanatory Note 44.12, which states that “[t]he products of this heading may be worked to form the shapes provided for in heading 44.09 . . . providedit does not give them the character of articles of other headings.” Id. at 633 (emphasis supplied). Therefore, items falling within heading 4412, HTSUS, may have been continuously shaped or other wise worked according to heading 44 09, HTSUS, in addition to having been laminated or glued in accordance with heading 4412, HTSUS. A. The Subject Merchandise is Not Plywood “Plywood” is def ined as “[a] flat panel made up of a number of thin sheets, or veneers, of wood in which the grain direction of each ply, or layer, is at right angles to the one adjacent to it. The veneer sheets are united, under pressure, by a bonding agent,” Terms of the Trade at 252; “[a] structural material consisting of layers of wood glued tightly together, [usually] with the grains of adjoining layers at right angles to each other,” Webster’s at 906; “[a] material composed of thin sheets of wood glued together, with the grains of adjacent sheets oriented at right angles to each other,” McGraw-Hill Dictionary of Scientific and Technical Terms at 1531; “thin sheets of wood glued together, with the grain of each consecutive piece positioned at a right angle to the preceding oneC OURT N O . 96-08-02006 P AGE 23

to give strength and prevent warping; widely used in construction,” Harcourt ; “manufactured board com pos ed of an odd number of thin sheets of wood glued together under pressure with grains of the successive layers at right angles,” The Columbia En cycl opedia at 2173; a “ compo site wood panel made of three or more layers glued together with the grain of adjoining plies at right angles to each other. Thin panels are built up of venee r ( thin sheet wood) exclusively. For thicker panels, sawed lumber often is used as the centre ply, or core, the product being called lumber-core plywood.” The New Encyclopedia Britannica vol. 9 at 532 (1986). As “pl y wood” tends to be defined in terms of “veneers” or “sheets,” definition of those terms is also necessary. Definitions of “veneer” include “[w]ood peeled, sawn, or sliced into sheets of

a given constant thickness and combinedwi th glue to produce plywoodor laminated-veneer lumber,” Terms of the Trade at 360; “1. Athin layer of material, as wood or plastic, bonded to and used for covering a [usually] inferior material. 2. Any of the thin layers glued together in manufacturing plywood,” Webster’s at 1280; “[a] thin sheet of wood of uniform thickness used for facing furniture or, when bonded, used to make plywood,” McGraw-Hill Dictionary of Scientific and Technical Terms at 2126; “1. a thin layer of material, especially a thin sheet of expensive wood laid

over a base of cheaper wood i n order to improve the outward appearance of th e c heaper wood. . . . 3. any of the layers thatC OURT N O . 96-08-02006 P AGE 24

8 “Film” is defined as “[a] flat section of material that is extremely thin in comparison to its other dimensions and has a nominal maximum thickness of about 250 micrometers and a lower limit of thickness of about 25 micrometers.” McGraw-Hill Dictionary of Scientific and Technical Terms at 753. compose a sheet of plywood,” Harcourt ; “thin leaf of wood applied with glue to a panel or frame of solid wo od. . . . [T]he modern machine-cut sheets are rarely thicker than 1/32 in. . . . Plywood andbeams or planks of compounded woods are developed by a veneering process.” The Columbia Encyclopedia 2870 (5 th ed. 1993). “Sheet” is defined as “1. The sam e a s a panel; ‘a sheet of particleboard.’ 2. A sheet of pa per,” Term s of the Trade at 298 (See pp. 26-27, infra , for definitions of “panel.”); “[a] material in a configuration similar to a film except that its thickness is greater than 0.25 millimeter. . . . A portion of a sur face suc h that it is possible to travel continuously between any two points

on it without leaving the surface,” McGraw-Hill Dictionary of Scientific an d Tech nical Terms at 1809; 8 “2. A broad, thin, [usually] rectangular piece of material, as paper, metal, glass, or wood. 3. A broad, flat, continuous surface or expanse <a sheet of ice>,” Webster’s at 1073; “ Textiles . [A] large, rectangular piece of cotton, linen, or other material used as a bed covering. Materials . [A] similar broad, thin piec e of s ome other material, such as paper, glass, or metal.” Harcourt . The definitions indicate that “plywo od” is composed of thin sheets of wood glued together with the grains of adjacent layers atC OURT N O . 96-08-02006 P AGE 25

right an gle s. The definitions of “veneer” and “sheet” indicate that the layers forming plywood are “continuous exp anse s” of material of a constant thickness. According to the Explan ato ry Note for heading 4408, HTSUS, both veneer sheets and plywood sheets “may be spliced (i.e., taped, stitched or glued together edge to edge to make larger sheets for use in plywoodand similar laminated wood.).” The subject merchandise consists of layers of wood glued together with the grains of adjoining layers at right angles. The center layer of the flooring, however, is comprised of slats or strips with “minor but visible spacing between each piece.” Order of Nov. 18, 2002. The separate slats cannot constitute a “sheet” because they do not form a continuous surface or expanse. As the center layer does not meet the definition of a “sheet,” the flooring cannot be considered plywood.

B. The Subject Merchandise Is A Veneered Panel The Explanatory Note for h eading 4412, HTSUS, defines “veneeredpanels” as “panels consisting of a thin veneer of wood affixedto a base, usually of inferior wood, by glueing under pressure.” Explanatory Notes at 633. The definitions cited above indicate that a “veneer” is a thin layer of wood (o r other material) having a continuous surface anda uniform thickness, and which is extremely thin in relation to its breadth. SeeC OURT N O . 96-08-02006 P AGE 26

definitions of “veneer” and “sheet,” supra pp. 23-24. Under the HTSUS, veneer is no thicker than 6 mm., see heading 4408, HTSUS, andveneer sheets and plywood sheets “may be spliced (i.e., taped, stitched or glued together edge to edge to make larger sheets for

use in plywood and similar laminated wood).” Explanatory Notes at 628. “Panel” is defined as “[a] flat, usu ally re ctangular piece forming a raised, recessed, or framed part of the surface in which it is set,” Ame rican Heritage Dictionary at 1307; “[a] flat, [usually] rectangular piece forming a part of a surface in which it is set and being raised, recessed, or framed,” Webster’s at 849; “2. A sheet of material held in a frame. 3. A distinct, usually rectangular, raised or sunken part of a construction surface or a material,” McGraw-Hill Dictionary of Scientific and Technical Terms at 1437; “ Building Engineering . 1. [A] distinct section or portion of a wall, cei ling, door, or other construction surface, usually a flat, rectangular area that is raised above or sunk below the surrounding area. . . . Materials . [A] manufactured sheet of wood-basedproduct that is available in standard sizes,” Harcourt ; “(1) a thin usually rectangular board set in a frame (as in a door) (2) a usuall y sunken or raised section of a surface set off by a margin (3) a flat usually rectangular piece of construction material (as plyw ood or pre cast masonry) made to form part of a surface,” Merriam-Webster’s Collegiate Dictionary , available at http://www.m-w.com ; “[a] sheet of plywood, [orientedstrand board],C OURT N O . 96-08-02006 P AGE 27

particleboard, or other similar product, usually of a st anda rd size, such as 4x8 feet.” Terms of the Trade at 239. “Base” is defined as “1. The lowest or bottom part. 2. A supporting layer or part: foundation ,” Webster ’ s at 155; “[f]oundation or part upon which an object or instrument rests,” McGraw-Hill Dictionary of Scientific and Technical Terms a t 19 5;

“ Engineering . [T]he lower part of a structure, especially one upon which an instrument rests or to which it is attached. Building Engineering . [T]he lo wermos t part of a wall or other building member,” Harcourt ; “[t]he lowest member of anything,” Corkhill, The Complete Dictionary of Wood at 30. Applying the definitions and the Explanatory Not e s for headings 4412 and 4408, HTSUS, a veneeredpanel consists of a layer of wood of uniformthickness of 6 mm. or less, which may be spliced

or otherwise attached at the edges to make a larger piece, laminatedont o a foundation of an inferior wood (or other material), and manufactured in flat, rectangular, distinct sections, most likely of a standardized size. In the instant case, t he hardwood top layer of the flooring meets the definition of veneer. The hardwood layer is made up of

s eparate pieces of wood bonded together at the edges to fo rm a continuous surface and has a c onstant thickness of approximately 3.175 mm. The veneer is bonded to a base of inferior softwood,C OURT N O . 96-08-02006 P AGE 28

9 “Inferior” is a relative term, since different woods are suitable for different purposes. See generally Wood Handbook Ch. 1. Generally, softwoods offer less hardness and durability than hardwoods. See id. at 1-2; see also Dep. of Thomas L. Goss at 35-36. As hardness and durability are desirable qualities in flooring, softwoods may be considered inferior to hardwoods in the manufacture of flooring. See , e.g. , Dep. of Thomas L. Goss at 35-36 (stating that a benefit of using hardwood as the top layer of flooring is its greater durability); World Floor Covering Association, at http://www.wfca.org (indicating in comparisons of different floor coverings that greater durability is a desirable quality).

10 The Court does not decide whether flooring or any other wood product is raised, recessed, or framed. Rather, the Court decides only that the term “panel” may be used to refer to materials that are not necessarily raised, recessed, or framed in their final applications. which forms the foundation of the flooring. 9 See Pl.’s Mem. at 1- 3; Dep. of Thomas L. Goss at 35-36; Def.’s Mem. at 13-14. Determining whether the pieces of flooring constitute “panels” requires further analysis. The flooring pieces fit those definitions that describe a “panel” as a standardized, wood-based product used as a construction material. See Harcourt ; Terms of the Trade at 239; Merriam-Webster’s Collegiate Dictionary . The flooring pieces also meet the more general definitions of “panel” in that they are flat, rectangular, manufactured in distinct section s of a sta ndard size, and form parts of a larger surface into which they are set. However, the flooring may not meet the element found in some definitions that suggests that pane ls are raised, recessed, or framed. 10 Th e term “panel” as used in the HTSUS, however, does not

necess arily refer to “raised, recessed, or framed” portions of aC OURT N O . 96-08-02006 P AGE 29

11 The Explanatory Note for heading 4412, HTSUS, states that in the case of plywood, placing the successive layers at right angles “gives the panels greater strength and . . . reduces warping.” Explanatory Notes at 632. In discussing veneered panels, the Explanatory Note uses the term “panel” almost interchangeably with the term “base” in stating that “[w]ood veneered on to a base other than wood (e.g. panels of plastics) is also classified here . . . .” Id. at 633. Finally, in discussing similar laminated wood, the Explanatory Note describes blockboard, laminboard, and battenboard as having a thick core surfaced with outer plies, and states that “[p]anels of this kind are very rigid and strong and can be used without framing or backing.” Id. Thus the term “panel” is used here to refer to construction materials that need not be “raised, recessed, or framed.” surface. The General Explanatory Notes to Chapter 44 discuss the classification of “building panels” used as “structural element[s] in roofing, wall or floor applications.” Explanatory Notes at 622. The Explanatory Notes to heading 441 8, HTSUS, explain that “cellular wood panels” are similar t o bl ockboard and battenboard andare used in partitions, doors, and sometimes in furniture; these Explanatory Notes also discuss “parquet str ips , etc., assembled into panels or tiles,” which may be tongued and grooved to facilitate assembly. Id. at 637. The Exp lanatory N otes for heading 4412, HTSUS, use the term “panel” to discuss plywo od, veneered panels, blockboard, laminboard, battenboard, and parquet floo rin g. 11 Id. at 632-33. Plywood, blockboard, laminboard, and battenboardare commonly produced in distinct, standardized

se cti ons for use in carpentry and as structural materials in construction. See, e.g. , Caleb Hornbostel, Construction Materials: Types, Uses and Applications 955-61 (2d ed. 1991) (discussing theC OURT N O . 96-08-02006 P AGE 30

characteristics and uses of various types of plywood, including “construction and industrial plywood” used in structural applications. The book refers to these products in terms of “panels.”); Encyclopedia Brittanica , vol. 9 at 532 (stating that “[w]herever a material is required to cover large areas with a light but strong and rigid sheeting, plywood may be used; for example in cabin etma king, for [furniture], in housebuilding, for walls, ceilings, floors, . . . in coachbuilding, for trucks, vans, andtrailers, in shipbuilding . . . for shipping and storage chests andcases”); Food and Agriculture Organization of the United Nations, Unasylva: World Consultation on the Use of Wood in Housing: An International Review of Forestry and Forest Products , vol. 25, § 3, “Wood Products and Their Use in Construction,” available at http://www.fao.org/d ocrep/c3848e/c3 848e05.htm (statin g that laminboard and blockboard are “used the same way in construction as thick plywood” and that “[t]heir major uses are in structural flooring, shelving, free-standing partitions and doors or sides in cabinets”). Many of these wood products would not be “raised, recessed, or framed” in the surfaces in which they are set. Similarly, parquet flooring pieces are set together to form a floor, and need not be individually raised, recessed, or framed in relation to each other. Finally, government, wood industry, and building sources and publi cations also indicate that the term “panel” may refer t o building components that are not necessarily raised, recessed, orC OURT N O . 96-08-02006 P AGE 31

framedin their ultimate use. See, e.g. Wood Handbook at 1-3 (“The most vigorously growing wood-based industries are those that . . . produce various types of engineered panels such as plywood, particleboard, strandboard, veneer lumber, paper, paperboard, and fiberboardproducts.”), 10-1 (discussing use of wood composites in “structural and nonstructural applications in product lines ranging from panels for interior covering purposes to panels for exterior

uses and in furniture and support structures in many different types of buildings”), 10-5 (listing plywood, oriented strandboard, particleboard, and other items as “frequently usedpanel products” andstating that certain “wood-based panels can be used for construction applications such as sheathing for roofs, subflooring, andwalls”), 10-6 (describing plywood, usable as a construction material, as “a flat panel”); APA, The Engineered Wood Association, Performance Rated Panels , at http://www.apawood.org (discussing performance standards for wood-based products such as plywood and ori entedstrandboard, referred to as “panels,” in variou s construction applications); Francis D. K. Ching, Building Construction Illustrated4.11, 12.5 (1991) (discussing characteristics and structural uses of “plywood panels” and other “woo d pa nel products”); Food and Agriculture Organization of the UnitedNations, Yearbook of Forest Products , Definitions, available at http://www.fao.org/waicent/faostat/forestry/prod ucts.h t m (categorizing plywood, including “core plywood” such as blockboard, laminboard, and batten board, as “wood based panels”); UnitedC OURT N O . 96-08-02006 P AGE 32

Nations Economic Commission for Europe, Timber Database, Forest and Forest Industr ies Country Fact Sheets , available at http://www.unece.org/trade/timber/tim-fact.htm ( ca tegorizin g plywood, including core plywood such as blockboard, laminboard, and battenboard, as “wood based panels”). Thus, the term “panel” as used in heading 4412, HTSUS, and in the additional sources cited refers to engineered wood products manufacturedin standardized sections for use as building and carpentry material. Such panels would not necessarily be “raised, recessed, or framed.” Accordingly, we conclu de that the subject merchandise is a “panel” as the term is used in the HTSUS. Each piece of flooring is manufactured in a standardized size and designed to be set into the larger surface as a section of a complete floor. See Boen Marketing Brochure, Bring the Beauty of WoodInside , Collective Ex. A(describing each layer of Boen hardwood flooring as “5 1/2" wide andapproximately 7' 2 5/8" long”); Boen Mar keti ng Material, TransformYour World With Boen Hardwood , Collective Ex. A (stating that “[e]ach Boen Longstrip is 5 1/2" wide and approximately 7' 2 5/8" long” and that the standardized measurements, as well as the tonguing and grooving along the edges, result in easier installation). Thus, the subject merchandise is a “veneered panel” within the meaning of heading 4412, HTSUS. As the hardwood top layer of the flooring panels provides an outer layer of non-coniferous wood, seesupra note 4, the merchandise is properly classified under heading

4412.29.50, “Other, with at least one outer ply of non-coniferous wood: Other.”

________________________ Donald C. Pogue Judge

Dated: January 7, 2003

New York, New York