1 Liquidation constitutes the appraisal of the value of

imported merchandise and determination of the appropriate

BOEN HARDWOOD FLOORING, INC.,

Plaintiff,

v.

UNITED STATES,

Defendant.

Slip Op. 02-21

United States Court of International Trade

Before: Pogue, Judge

Court No. 96-08-02006

[Plaintiff’s motion for summary judgment denied. Defendant’s

cross-motion for summary judgment granted. Judgment entered for

Defendant.]

 Decided: February 25,2002

Galvin & Mlawski (John J. Galvin), Attorney, for Plaintiff. 

Robert D. McCallum, Jr., Assistant Attorney General, John J. Mahon,

Acting Attorney in Charge, International Trade Field Office,

Barbara S. Williams, Attorney, Commercial Litigation Branch, Civil

Division, U.S. Department of Justice; Yelena Slepak, Office of

Assistant Chief Counsel, International Trade Litigation, U.S.

Customs Service, Of Counsel, for Defendant.

OPINION

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

or “Boen”) challenges the denial of its protest, filed in

accordance with section 514 of the Tariff Act of 1930, as amended,

19 U.S.C. § 1514 (1994), against the liquidation of the subject

merchandise.1 Defendant United States Customs Service (“Defendant”
COURT NO. 96-08-02006 PAGE 2

classification and rate of duty. See 19 U.S.C. § 1500 (1994); 19

C.F.R. § 159 (2001). 

or “Customs”) classified Plaintiff’s merchandise under heading 4412

of the Harmonized Tariff Schedule of the United States (1995)

(“HTSUS”), as “[p]lywood, veneered panels, and similar laminated

wood.” Plaintiff contends that the subject merchandise should be

liquidated under subheading 4409.20.25, HTSUS, as “[n]onconiferous

[w]ood flooring.” 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). Customs’

classification is subject to de novo review by this Court pursuant

to 28 U.S.C. § 2640 (1994). This action is before the Court on

cross motions for summary judgment made by Plaintiff and Defendant

pursuant to USCIT Rule 56. The Court finds, for the reasons

discussed below, that the subject merchandise is properly

classified under heading 4412, HTSUS, as a “veneered panel” and

grants summary judgment for the defendant. 

Undisputed Facts

The subject merchandise consists of hardwood flooring 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 of

Material Facts ¶¶ 18-21 (Def.’s Resp. to Pl.’s Statement of
COURT NO. 96-08-02006 PAGE 3

2 “Laminate” means “[t]o bond together two or more pieces of

wood to make a single piece, using adhesive and pressure.” 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”). 

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

layered stock from which the merchandise is produced is “glu[ed]

under pressure”); Def.’s Statement of Undisputed Facts ¶ 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” and therefore is

properly 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 shall be laminated construction”);

Boen Hardwood Flooring Floating Floor System Installation Guide,
COURT NO. 96-08-02006 PAGE 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 states that this layer is composed of milled

pine slats. See Pl.’s Statement of Facts at 5; Pl.’s Mem. Supp.

Mot. Summ. J. at 1-2 (“Pl.’s Mem.”). Defendant points out that

Plaintiff stated in its deposition that the layer is composed of

Norwegian spruce. See Def.’s Resp. to Pl.’s Statement of Facts ¶

20; see also Dep. of Thomas L. Goss at 22. Defendant asserts

that it lacks information sufficient to form a belief regarding

the type of wood used in the center layer. Def.’s Resp. to Pl.’s

Statement of Facts ¶¶ 20-21. As both pine and spruce are

softwoods, see U.S. Department of Agriculture, Forest Service,

Forest Products Laboratory, Wood Handbook: Wood as an Engineering

Material 1-2, Table 1-1, 1-10 - 1-16 (1999) (“Wood Handbook”),

the Court finds that the distinction is immaterial for the

purpose of this action.

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

Mem. 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

hardwood measuring approximately 1/8 inch thick and 2 3/4 inches

wide. See Pl.’s Statement of Facts at 5; Def.’s Resp. to Pl.’s

Statement of Facts ¶ 21. The center layer is composed of softwood4

strips or slats measuring approximately one inch wide and 1/4 inch
COURT NO. 96-08-02006 PAGE 5

5 The measurements of the strips forming the center layer

have been found by the parties and by this Court to vary slightly

among the samples. In its brief, Plaintiff asserted that the

center strips measure 7/8 inch to 1 inch wide and 1/2 inch thick. 

See Pl.’s Statement of Facts at 5-6; Pl.’s Mem. at 1-2. 

Defendant asserts that the center strips in its sample of the

merchandise measure 1 1/16 inch wide and 5/16 inch thick. See

Def.’s Mem. at 2. The center strips in the Court’s samples of

the merchandise measure approximately 1 1/8 inch wide and 1/4

inch thick. The differences in the measurements of the center

layer do not present a material issue of fact.

thick.5 These softwood strips are laid next to each other with

their grain perpendicular to the grain of the two outer layers of

the flooring. See Pl.’s Statement of Facts at 5; Def.’s Resp. to

Pl.’s Statement of Facts ¶ 20. The bottom layer 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 spruce pieces is

perpendicular to the grain of the softwood center layer and

parallel 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 the imported hardwood flooring in

question should be classified within heading 4409, HTSUS, “[w]ood

(including strips and friezes for parquet flooring, 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,”
COURT NO. 96-08-02006 PAGE 6

and further, under subheading 4409.20.25, HTSUS, “[n]onconiferous

[w]ood flooring.” 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 definitions 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 “[p]lywood, veneered panels,

or similar laminated wood,” it would have the essential character

of an item of 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 properly classified

under heading 4412, HTSUS, which describes “[p]lywood, veneered

panels, or similar laminated wood,” and argues that the flooring

meets the definition of plywood. Defendant argues in the

alternative that even if the flooring were not classifiable as

plywood it still fits the definitions of “veneered panels” and
COURT NO. 96-08-02006 PAGE 7

“similar laminated wood.” Def.’s Mem. at 5. Defendant asserts

that the flooring is excluded from heading 4409, HTSUS, by the

terms of the headings and the Explanatory Notes, id. at 15-17; that

cases decided under the TSUS and earlier 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 the subject merchandise under heading 4409,

HTSUS. Id. at 21-26. 

Standard of Review

Summary judgment is appropriate where there exists no 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. 

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
COURT NO. 96-08-02006 PAGE 8

6 As noted above, the disagreements as to the composition

and measurements of the center layer, see supra notes 4-5, are

not material such that they may preclude summary judgment. 

classification terms is a question of law, while application of the

terms to the merchandise at issue is a question of fact. See id.

Summary judgment is appropriate when the dispute involves only the

proper tariff classification for the subject merchandise, not the

nature of the merchandise itself. See id. 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 characteristics6 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 General

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
COURT NO. 96-08-02006 PAGE 9

(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,

classification shall be determined according to the terms of the

headings and any relative section or chapter notes.” GRI 1; see

also Orlando Food Corp., 140 F.3d at 1440. Goods that cannot be

classified solely by reference to GRI 1 must be classified by

reference to the succeeding GRIs in numerical order. Furthermore,

“[a]bsent contrary legislative intent, HTSUS terms are to be

construed according 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 Court 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 are not legally binding, they are

useful in ascertaining the correct classification of the

merchandise in question. See Rollerblade, Inc. v. United States,

112 F.3d 481, 486 n. 3 (Fed. Cir. 1997) (stating that the

Explanatory Notes are “intended to clarify the scope of HTSUS

subheadings and to offer guidance in interpreting its subheadings”)
COURT NO. 96-08-02006 PAGE 10

(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 most appropriate

classification of merchandise 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 wood, semifinished products 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 subjected 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). The

General Explanatory Notes explain that items covered by Chapter 44

may be “grouped broadly” 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
COURT NO. 96-08-02006 PAGE 11

7 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). 

Explanatory Notes at 622. 

to 44.09),” and “(3) [p]article board and similar board,

fibreboard, laminated wood and densified wood (headings 44.10 to

44.13).”7 Explanatory Notes at 622. These broad categories

separate laminated products from products that are merely shaped.
COURT NO. 96-08-02006 PAGE 12

I. Heading 4409, HTSUS

As noted, heading 4409, HTSUS, covers “[w]ood (including

strips and friezes for parquet flooring, 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) below, 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 Statement of Facts at 4, 7; Def.’s Resp. to

Pl.’s Statement of Facts ¶ 17; Def.’s Mem. at 2. The initial terms

used by the Explanatory Note, however, “timber, particularly in the

form of boards, planks, etc.,” indicate that heading 4409, HTSUS,

contemplates wood material that is less processed than the subject

merchandise. Explanatory Notes at 629. 

“Timber” is defined in relevant part as “[w]ood as a building
COURT NO. 96-08-02006 PAGE 13

8 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., 5th 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

Wood 317 (1979). 

material: lumber”8 or “[a] dressed piece of wood, esp. a beam in a

structure,” Webster’s at 1210; “[w]ood used for building,

carpentry, or joinery,” McGraw-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 pieces 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

used in a wider sense and includes all kinds and forms of wood,

especially when in bulk. . . . Usually the term implies stuff of

large section.”)

“Board” is defined 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
COURT NO. 96-08-02006 PAGE 14

Scientific and Technical Terms at 246; “[a] long flat slab of sawed

lumber: plank” or “[a] flat piece of rigid material, as wood

adapted for 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

inches in nominal 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]aperboard”); 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,”

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
COURT NO. 96-08-02006 PAGE 15

width. There is considerable difference in the limits in different

markets. A plank in hardwood is from 1 1⁄2 in. x 9 in. and 8 ft.

upwards in length.” Corkhill, The Complete Dictionary of Wood at

412. 

While two definitions of the term “board” recognize a more

general meaning, see Terms of the Trade at 37; Harcourt, the other

definitions of “timber,” “lumber,” “board,” and “plank” strongly

suggest that these terms refer to relatively unprocessed singlelayer 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 the TSUS and prior

Tariff Acts to argue that continuously shaped wooden flooring and

glued stock, or wooden boards or planks made by gluing pieces of

wood together, have been consistently treated as if they had been

shaped only. In these cases, the lamination and assembly

operations performed on the boards at issue were held not to

constitute a further manufacturing process or to result in a

product that was further advanced than boards which had been only

shaped, such as planed, tongued, grooved. Under the present tariff

schedules, such treatment would allow laminated products to be

classified under heading 4409, HTSUS. 
COURT NO. 96-08-02006 PAGE 16

Plaintiff’s reliance on these cases, however, is misplaced.

The cases indicate that glued stock was treatable as lumber, not

further manufactured or advanced than sawed, planed, and tongued

and grooved, 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 of 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. The dovetailing and gluing operations simply

created a larger piece of wood from smaller pieces, and did not

change the character of the wood as lumber, or a material from

which to make finished articles. The Treasury Department later

promulgated a notice adopting the principle of the McKenzie

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, including jointed and glued

stock” may be recognized as lumber if “of a length, width, and

thickness which is recognized in the trade as lumber if of one-
COURT NO. 96-08-02006 PAGE 17

piece material”). 

In Border Brokerage Co. v. United States, 52 Cust. Ct. 204

(1964), as in the McKenzie case, the court concluded that one-piece

and two-piece wood stock of the same size and intended for the same

purpose were both classifiable as not further manufactured than

planed, tongued and grooved. The two-piece 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, and grooved. Laminating or

assembling operations could be performed without being held to

advance the condition of the wood when the purpose of the

lamination or assembly was to obtain a larger piece of wood, but

one of a size that could still be obtained by cutting a natural

log. See also C.B. Smith Co. v. United States, 64 Cust. Ct. 278

(1970) (Glued hardwood, whether edge-glued, end-glued, or faceglued, was 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

performance separately from dimension stock, which has different

applications than lumber.); Pacific Hardwood Sales Co. v. United
COURT NO. 96-08-02006 PAGE 18

States, 64 Cust. Ct. 68 (1970) (Wood for making drawer sides,

produced by edge-gluing numerous smaller strips of wood, 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. The

glued maple lumber was classified under a heading covering wood

that had been further manufactured than lumber but was not yet a

finished article.); P.W. Drittler 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 that

the boards in question were of a size not normally obtainable in

nature. The court classified them under a heading covering wood

that had been further manufactured than lumber but was not yet a

finished article.). 

The holdings of these cases rested on the principle that the
COURT NO. 96-08-02006 PAGE 19

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 Products Mfg. 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

board of a different size that is otherwise similar in performance

and use to a solid board. Rather, the purpose is to obtain a wood

flooring product that is superior 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

contemplated within the reasoning of the cases that treated

assembled and laminated wood products as no more advanced than

shaped wood. 

In an alternative argument, Plaintiff asserts that the

Explanatory Note for heading 4412, HTSUS, and Chapter Note 4,

Chapter 44, HTSUS, require the subject merchandise to be classified
COURT NO. 96-08-02006 PAGE 20

under heading 4409, HTSUS. Explanatory Note 44.12 states that 

the products of this heading may be worked to

form the shapes provided for in heading 44.09,

curved, corrugated, perforated, cut or formed

to shapes other than square or rectangular or

submitted to any other operation provided it

does not give them the character of articles

of other headings.

Explanatory Notes at 633. 

Chapter Note 4 states that

[p]roducts of heading No. 44.10, 44.11 or

44.12 may be worked to form the shapes

provided for in respect of the goods of

heading No. 44.09, curved, corrugated,

perforated, cut or formed to shapes other than

square or rectangular or submitted to any

other operation provided it does not give them

the character of articles of other headings. 

Chapter Note 4, Chapter 44, HTSUS. 

Plaintiff argues that even if the five-layer stock from which

the subject merchandise is produced were classifiable under heading

4412, HTSUS, the subject merchandise itself “has been so far

advanced as to dedicate it solely for use as flooring.” Pl.’s

Reply at 16. Plaintiff appears to suggest that because the

merchandise is fully manufactured into wood flooring and is usable

only for that purpose, it has the character of an article of

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
COURT NO. 96-08-02006 PAGE 21

merchandise as an article of another heading by referring to the

subheadings. The Chapter Note and the Explanatory Note speak of

“articles of other headings.” Chapter Note 4, Chapter 44, HTSUS;

Explanatory Notes at 633 (emphasis supplied). 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, 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 operations 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, HTSUS, covers “[p]lywood,

veneered panels and similar laminated wood,” and the General

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 of heading 4409, HTSUS. Explanatory

Notes at 622. This is reiterated in Explanatory Note 44.12, which

states that “[t]he products of this heading may be worked to form
COURT NO. 96-08-02006 PAGE 22

9 As “plywood” 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 combined with glue

to produce plywood or laminated-veneer lumber,” Terms of the

Trade at 360; “1. A thin 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 in order to

improve the outward appearance of the cheaper wood. . . . 3. any

of the layers that compose a sheet of plywood,” Harcourt; “thin

leaf of wood applied with glue to a panel or frame of solid wood.

. . . [T]he modern machine-cut sheets are rarely thicker than

1/32 in. . . . Plywood and beams or planks of compounded woods

are developed by a veneering process.” The Columbia Encyclopedia

2870 (5th ed. 1993). 

“Sheet” is defined as “1. The same as a panel; ‘a sheet of

particleboard.’ 2. A sheet of paper,” Terms of the Trade at 298

the shapes provided for in heading 44.09 . . . provided it 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 otherwise worked

according to heading 4409, HTSUS, in addition to having been

laminated or glued in accordance with heading 4412, HTSUS. 

A. The Subject Merchandise is Not Plywood

“Plywood” is defined 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;9 “[a] structural material consisting of
COURT NO. 96-08-02006 PAGE 23

(See text at p. 26, 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

surface such that it is possible to travel continuously between

any two points on it without leaving the surface,” McGraw-Hill

Dictionary of Scientific and Technical Terms at 1809 (This

dictionary defines “film” at page 753 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.”); “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 piece of some other material, such as paper, glass,

or metal.” Harcourt. 

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 one

to give strength and prevent warping; widely used in construction,”

Harcourt; “manufactured board composed of an odd number of thin

sheets of wood glued together under pressure with grains of the

successive layers at right angles,” The Columbia Encyclopedia at

2173; a “composite 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 veneer (thin sheet wood)
COURT NO. 96-08-02006 PAGE 24

10 To convert inches to millimeters, multiply the measurement

in inches by 25.4. See Terms of the Trade at 419 (charting

metric conversions).

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). 

The definitions indicate that “plywood” is composed of thin

layers of wood glued together with the grains of adjacent layers at

right angles. Furthermore, the HTSUS specifies that each component

layer may be no thicker than 6 mm. Heading 4412, HTSUS, defines

plywood as “consisting solely of sheets of wood, each ply not

exceeding 6 mm. in thickness.” Heading 4408, HTSUS, covers

“[v]eneer sheets and sheets for plywood (whether or not spliced)

and other wood sawn lengthwise, sliced or peeled” and specifies

that they may be “of a thickness not exceeding 6 mm.” In addition,

the Explanatory Note for heading 4408, HTSUS, indicates that 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 plywood and similar laminated wood.).”

The subject merchandise consists of layers of wood glued

together with the grains of adjoining layers at right angles. The

hardwood top layer of the flooring and the bottom spruce layer are

each approximately 1/8 inch or 3.175 mm. thick.10 The center layer

of the flooring is approximately 1/4 inch or 6.35 mm. thick,

exceeding the thickness limit of 6 mm. indicated by the HTSUS for
COURT NO. 96-08-02006 PAGE 25

11 As the measurements of the center layer of the subject

merchandise determine that it cannot be classified as “plywood”

under the HTSUS, the Court does not reach the issue of whether

the center layer of the flooring could meet the definitions of

“veneer” or “sheet.” 

veneer or plywood sheets. As the center layer does not meet the

thickness requirement for plywood sheets under the HTSUS, the

flooring cannot be considered plywood.11

B. The Subject Merchandise Is A Veneered Panel

The Explanatory Note for heading 4412, HTSUS, defines

“veneered panels” as “panels consisting of a thin veneer of wood

affixed to 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 (or other

material) having a continuous surface and a uniform thickness, and

which is extremely thin in relation to its breadth. See

definitions of “veneer” and “sheet,” supra note 9. Under the

HTSUS, veneer is no thicker than 6 mm. and 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 plywood and

similar laminated wood).” Explanatory Notes at 628. 

“Panel” is defined as “[a] flat, usually rectangular piece

forming a raised, recessed, or framed part of the surface in which

it is set,” The American Heritage Dictionary of the English

Language 1307 (3rd ed. 1996); “[a] flat, [usually] rectangular piece
COURT NO. 96-08-02006 PAGE 26

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, ceiling,

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-based product that is

available in standard sizes,” Harcourt; “(1) a thin usually

rectangular board set in a frame (as in a door) (2) a usually

sunken or raised section of a surface set off by a margin (3) a

flat usually rectangular piece of construction material (as plywood

or precast masonry) made to form part of a surface,” MerriamWebster’s Collegiate Dictionary, available at http://www.m-w.com;

“[a] sheet of plywood, [oriented strand board], particleboard, or

other similar product, usually of a standard 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 at 195;

“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 lowermost part of a wall or other building
COURT NO. 96-08-02006 PAGE 27

12 “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).

member,” Harcourt; “[t]he lowest member of anything,” Corkhill, The

Complete Dictionary of Wood at 30. 

Applying the definitions and the Explanatory Notes for

headings 4412 and 4408, HTSUS, a veneered panel consists of a layer

of wood of uniform thickness of 6 mm. or less, 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. 

In the instant case, the hardwood top layer of the flooring

meets the definition of veneer. The hardwood layer is made up of

separate pieces of wood bonded together at the edges to form a

continuous surface and has a constant thickness of approximately

3.175 mm. The veneer is bonded to a base of inferior softwood,

which forms the foundation of the flooring.12 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
COURT NO. 96-08-02006 PAGE 28

13 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. 

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

sections of a standard 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 panels are

raised, recessed, or framed.13 

The term “panel” as used in the HTSUS, however, does not

necessarily refer to “raised, recessed, or framed” portions of a

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 4418, HTSUS, explain that

“cellular wood panels” are similar to blockboard and battenboard

and are used in partitions, doors, and sometimes in furniture;

these Explanatory Notes also discuss “parquet strips, etc.,

assembled into panels or tiles,” which may be tongued and grooved

to facilitate assembly. Id. at 637. The Explanatory Notes for

heading 4412, HTSUS, use the term “panel” to discuss plywood,
COURT NO. 96-08-02006 PAGE 29

14 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.” 

veneered panels, blockboard, laminboard, battenboard, and parquet

flooring.14 Id. at 632-33. Plywood, blockboard, laminboard, and

battenboard are commonly produced in distinct, standardized

sections 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 the

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 cabinetmaking, for [furniture], in housebuilding, for

walls, ceilings, floors, . . . in coachbuilding, for trucks, vans,

and trailers, in shipbuilding . . . for shipping and storage chests

and cases”); Food and Agriculture Organization of the United
COURT NO. 96-08-02006 PAGE 30

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/docrep/c3848e/c3848e05.htm (stating

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

publications also indicate that the term “panel” may refer to

building components that are not necessarily raised, recessed, or

framed in 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

fiberboard products.”), 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 used panel products”
COURT NO. 96-08-02006 PAGE 31

and stating that certain “wood-based panels can be used for

construction applications such as sheathing for roofs, subflooring,

and walls”), 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

oriented strandboard, referred to as “panels,” in various

construction applications); Francis D. K. Ching, Building

Construction Illustrated 4.11, 12.5 (1991) (discussing

characteristics and structural uses of “plywood panels” and other

“wood panel products”); Food and Agriculture Organization of the

United Nations, Yearbook of Forest Products, Definitions, available

at http://www.fao.org/waicent/faostat/forestry/products.htm

(categorizing plywood, including “core plywood” such as blockboard,

laminboard, and battenboard, as “wood based panels”); United

Nations Economic Commission for Europe, Timber Database, Forest and

Forest Industries Country Fact Sheets, available at

http://www.unece.org/trade/timber/tim-fact.htm (categorizing

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

manufactured in standardized sections for use as building and

carpentry material. Such panels would not necessarily be “raised,

recessed, or framed.”
COURT NO. 96-08-02006 PAGE 32

Accordingly, we conclude 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 Wood Inside, Collective Ex.

A (describing each layer of Boen hardwood flooring as “5 1/2" wide

and approximately 7' 2 5/8" long”); Boen Marketing Material,

Transform Your 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, and is properly classifiable

thereunder. 

________________________

Donald C. Pogue 

 Judge

Dated: February 25, 2002

 New York, New York