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 ju dgment denied. Defendant’s cross-motion for summary judgment granted. Judg ment 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, Internat ional Trade Field Office, Barbara S. Williams , Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice; Yelena Sl epak , 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 pr otest, 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”C OURT N O . 96-08-02006 P AGE 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 o f the United States (1995) (“HTSUS”), as “[p]lywood, veneered panel s, a nd similar laminated 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). Customs’ classification is subject to de novo review by this Court pursuant to 28 U.S.C. § 2640 (1994). This action is before the Cou rt on

cross motions for summary judgment made by Plaintiff andDefendant pursuant to USCIT Rule 56. The Court find s, for the reasons discussedbelow, that the subject merchandise is p roperly classifiedunder heading 4412 , H TSUS, 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 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.” 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 layeredstock from which the merchandise i s prod uced 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 de fini tion of “laminated” and therefore is properly classifiable as “similar laminate d 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 tha t “Boen Longstrip shall be laminated construction”); Boen Hardwood Flooring Floatin g Fl oor System Installation Guide ,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 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 flo oring 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 stand ard 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 app roxima tely 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 softwood 4 strips or slats measuring approximately one inch wide and 1/4 inchC OURT N O . 96-08-02006 P AGE 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 soft w ood 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 composedof 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 par allel 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 hard wood flooring in question should be classified within heading 4409, HTSUS, “[w]ood (including strips andfriezes 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,”C OURT N O . 96-08-02006 P AGE 6

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, wh e n 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

mee t the definitions of these items. See Pl.’s Reply t o 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 pro perly classified under heading 4412, HTSUS, which describes “[p]lywood , veneered panels, or similar laminated wood,” and argues that the fl ooring meets the definition of plywood. Def endant argues in the alternative that even if the flooring were not classifiable as plywoodit still fits the definitions of “veneered panels” andC OURT N O . 96-08-02006 P AGE 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 andthe 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 i ntent, i d. at 18-20; and that the cases do not support the classif ic ation 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). Adispute is genuine “if the evidence is such that [t he 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 analyz ing a customs classification. “[F]irst, [it] construe[s] the relevant classification headings; and second, [it] determine[s] under which of the properly construed tar iff 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 tariffC OURT N O . 96-08-02006 P AGE 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 sub jec t merchandise is flooring consisting of a hardwood layer and two softwoodlayers, glued together with th e grai ns 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 6 of the merchandise, anddisagree 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); andC OURT N O . 96-08-02006 P AGE 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 accordi ng to the terms of the headi ngs and any relative section 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]bsen t co ntrary legislative 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 Court may also refer to the Explanat ory No tes, 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 E xplanatory Notes are not legally binding, they are useful in ascertaining the correct classificat i on 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 Not es are “intended to clarify the scope of HTSUS subheadings and to offer guidance in interpreting its subheadings”)C OURT N O . 96-08-02006 P AGE 10

(citing Mita Copystar Am. v. United States , 21 F.3d 1079, 1082 (Fed. Cir. 1994)); Lonza, Inc. v. United States , 46 F.3d1098, 1109 (Fed. Cir. 1995) (“While the Explanatory Notes do not constitute controlling legislative history, they do offer guidance in interpreting the HTS[US] subheadings.”) . Determin ing 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 “ unmanu factured wood, semifinished produc ts 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 furt her 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 heading s with in 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 44.07C OURT N O . 96-08-02006 P AGE 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, lamina ted 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.C OURT N O . 96-08-02006 P AGE 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, o r 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; De f.’s Resp. to Pl.’s Statement of Facts ¶ 17; Def.’s Mem. at 2. The initial terms 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 processed than the subject merchandise. Explanatory Notes at 629. “Timber” is defined in relevant part as “[w]ood as a buildingC OURT N O . 96-08-02006 P AGE 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., 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). 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 Dict iona ry 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 piec es 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, especially when in bulk. . . . Usually the term implies stuff of large section.”) “B oard” 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 ofC OURT N O . 96-08-02006 P AGE 14

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 inche s in nomin al 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”); Harc ourt (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 definedas “[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 inC OURT N O . 96-08-02006 P AGE 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. Whil e t wo definitions of the term “board” recognize a more general meaning, see Terms of the Trade at 37; Harcourt , the other defi nitions of “timber,” “lumber,” “board,” and “plank” strongly suggest that these ter ms r efer to relatively unprocessed singlelay er wood pieces, cut and shaped by the sawmill for use i n 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 shapedonly. In these cases, the la mination and assembly operations performed on the boards at issue were held not to constitute a f urt her 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 lami nated products to be classified under heading 4409, HTSUS.C OURT N O . 96-08-02006 P AGE 16

Plaintiff’s reliance on these cases, however, is mis pl aced. The cases indicate that glued stock was treatable as lumber, not further manufactured or advanced than sa wed, 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 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 createda larger piece of wood from smaller pieces, and did not change the character of the wood as lumber, or a materia l fr om whi ch to make finished articles. The Treasury Department later promulgateda 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) (st atin g that “glued stock, including jointed and glued stock” may be recognized as lumber if “of a length, width, and thickness which is recogniz ed in the trade as lumber if of one-C OURT N O . 96-08-02006 P AGE 17

piece material”). In B o rder Brokerage Co. v. United States , 52 Cust. Ct. 204 (1964), as in the McKenzie case, the court concluded that one-piece andtwo-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. Th e t wo-piece stock was assembled through lamination andbullnosing (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 Stat es , 6 0 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 manufacturedthan pl aned , tongued, and grooved. Laminating or assembling operations could be performed without bei ng held to advance the condition of the wood when the purpose of the lamination or assemb ly wa s to obtain a larger piece of wood, but

one of a size that could still be obtained by cutting a natural log. Se e 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 specifica tions were adopted in an effort to classify glued stock that is similar to lumber in use and performance separately from dimension stock, w hich has different appl icat ions than lumber.); Pacific Hardwood Sales Co. v. UnitedC OURT N O . 96-08-02006 P AGE 18

States , 64 Cust. Ct. 68 (1970) (Wood for making drawer sides, pr oduc edby 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 glue d m aple lumber was classified under a heading covering wood that had been further manu factu red than lumber but was not yet a finishedarticle.); P.W. Drittler v. United Stat es , 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 si ze not normally obtainable in nature. The court classified them under a heading covering wood that had b een f urther manufactured than lumber but was not yet a finished article.). The holdings of these cases rested on the principle that theC OURT N O . 96-08-02006 P AGE 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, an d tong ued, and grooved.” Clarence S. Holmes, A/C Best Pr oducts 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 boardof a different size that is otherwise similar in performance anduse to a solid board. Rather, the purpose is to obtain a wood flooring pro duct 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 contemplatedwithin the reasoning of the cases that treated assembledand laminated wood products as no more advanced than shaped wood. In an alternative argu m ent, Plaintiff asserts that the Explanatory Not e for heading 4412, HTSUS, and Chapter Note 4, Chapter 44, HTSUS, require the subject merchandise to be classifiedC OURT N O . 96-08-02006 P AGE 20

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 d oes 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 p rovidedfor in respect of the goods o f 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 , t he subject merchandise itself “has been so far advancedas 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 h as 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 theC OURT N O . 96-08-02006 P AGE 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 No te 4, Chapter 44, HTSUS; Explanator y No tes 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. Headin g 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, veneeredpanels and similar laminated wood,” and the G ener al Explanatory Notes to Chapter 44 indicate that items covered by heading 4412, HTSUS, may have been subjected also to the processes that characterize the it ems 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 formC OURT N O . 96-08-02006 P AGE 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 (5 th 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 . . . providedit does not give them the character of articles of other headings.” Id. at 633 (emphasis supplied). Therefore, items falling within heading 4412, HTS US, may have been continuously shaped or otherwise worke d 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 ofC OURT N O . 96-08-02006 P AGE 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 ; “manufact ure d board composed of an odd number of thin sheets of wood glued together under pressure with grains of the successive la yers at right angles,” The Columbia Encyclopedia at 2173; a “composite wood panel made of th ree or more layers glued together with the grain of adjoining plies at right angles to each other. Thin panels are built up of ven eer (thin sheet wood)C OURT N O . 96-08-02006 P AGE 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, sawedlumber 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 “ply woo d” is composed of thin layers of woodgluedtogether 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 plywoodas “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 splic ed) andot her 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 subje ct merc handise consists of layers of wood glued together with the grains of adjoining layers at right angles. The hardwoodtop 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 forC OURT N O . 96-08-02006 P AGE 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, defi ne s “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 thi n 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 she ets and plywoodsheets “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. “Pane l” is d efined 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 (3 rd ed. 1996); “[a] flat, [usually] rectangular pieceC OURT N O . 96-08-02006 P AGE 26

forming a pa rt of a surface in which it is set and being raised, recessed, or framed,” Webster’s at 849; “2. A sheet of material heldin 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 c onst ruction 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 15 5 ; “[f] oundat ion or part upon which an object or instrument rests,” McGraw-Hill Dictionary of Scie ntific 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 o f a wall or other buildingC OURT N O . 96-08-02006 P AGE 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 woodof uniform thickness of 6 mm. or less, which may be spliced

or otherwise attached at the edges to make a larger piece, laminatedonto a foundati on 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 laye r of the flooring meets the definition of veneer. The hardwood layer is made up of separate pieces of wood bonded together at the edges t o fo rm a continuous surface a nd h as 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 thoseC OURT N O . 96-08-02006 P AGE 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” i n that they are flat, rectangular, manufactured in dist inc t 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 som e d efinitions that suggests that panels are raised, recessed, or framed. 13 The term “panel” as used in the HTSUS, how e ver, does not necessarily refer to “raised, recessed, or fra med” 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 Expl anat ory Notes to heading 4418, HTSUS, explain that “cellular wood panels” are similar to blockboard and battenboard andare used in partitions, doors, and sometimes in furniture; these Explanatory Notes also discuss “parqu et strips, etc., assembled into panels or tiles,” which may be tongued and grooved to fa cilitate a ssembly. Id. at 637. The Explanatory Notes for heading 4412, HTSUS, use th e term “panel” to discuss plywood,C OURT N O . 96-08-02006 P AGE 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 battenboardare commonly produced in distinct, standardized sections for use in ca rpe ntry 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 cabinetma king , for [furniture], in housebuilding, for walls, ceilings, floors, . . . in coachbuilding, for trucks, vans, andtrailers, in shipbuilding . . . for shipping and storage chests andcases” ); F ood and Agriculture Organization of the UnitedC OURT N O . 96-08-02006 P AGE 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/docre p/c3848e/c3848e 05.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 publications also indicate that the term “panel” may r efer t o building components that are not necessarily raised, recessed, or 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 used panel products”C OURT N O . 96-08-02006 P AGE 31

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 orientedstrandboard, ref erre d 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 “woodpanel products”); Food and Agricul ture Organization of the UnitedNations, Yearbook of Forest Products , Definitions, available at http://www.fao.org/waicent/faost at/for estry/products.ht m (categorizing plywood, including “core plywood” such as blockboard, laminboard, and battenboard, as “woo d base d panels”); United Nations Economic Commission for Europe, Timber Database, Forest and Forest Industries Country Fact Sheets , av ailable at http://www.unece.o rg /trade/timber/tim-fact.htm (categorizin 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.”C OURT N O . 96-08-02006 P AGE 32

Accordingly, we conclude tha t the s ubject 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 appr oximately 7' 2 5/8" long”); Boen Marketing Material, TransformYour WorldWith 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

me anin g of heading 4412, HTSUS, and is properly classifiable thereunder.

________________________ Donald C. Pogue Judge

Dated: February 25, 2002

New York, New York