OT:RR:CTF:CPMM H304562 APP/ARU
Ms. Justyna Regan
Miller, Canfield, Paddock and Stone, P.L.C.
225 W. Washington Street, Suite 2600
Chicago, IL 60606
RE: Request for Reconsideration of NY N304028; Tariff classification of a three-ply wood flooring panel from Poland
Dear Ms. Regan:
This is in response to your letter of May 28, 2019, requesting reconsideration of New York Ruling Letter (“NY”) N304028, dated April 29, 2019, regarding the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of a three-ply wood flooring panel. In NY N304028, U.S. Customs and Border Protection (“CBP”) classified the merchandise in heading 4412, HTSUS, and more specifically in subheading 4412.94.1050, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), and in subheading 4412.94.3105. Our response follows.
FACTS:
NY N304028 describes the merchandise at issue as follows:
The product considered in this ruling is a three-ply wood flooring panel. The panel is constructed of a face veneer measuring approximately 2.0mm to 3.5mm in thickness, a core of lumber blocks measuring approximately 8.2mm to 9.0mm in thickness, and a back ply measuring approximately 2.0mm to 2.6mm in thickness. You indicate that the panels will be imported in widths ranging from 110mm to 207mm and lengths ranging from 660mm to 220mm. The core and back ply will both consist of pine or spruce wood. You state that the face ply will be a veneer of single- or multi-strip construction, and will consist of one of several non-coniferous woods including birch and 17 tropical or temperate wood species …. The plies are laminated together with the grain of each ply running at a 90-degree angle to that of the subsequent plies. You also indicate that core is reinforced on its ends with medium density fiberboard or hardwood plywood, “in order to ease milling a locking profile.” The panels will be finished with a clear coating, with or without stain.
In your May 28, 2019 request for reconsideration you further explain that:
… The three plies of wood are arranged crosswise (grains perpendicular) to each other and glued to each other with a ureaformaldehyde adhesive, which is applied under pressure … The exact dimensions of the product can range in size and thickness and in certain types of materials used in the face ply ….
The face ply, which forms the external, functional part of the flooring panels, is composed of one, three, four or six strips, … is composed of a thin veneer of solid, deciduous tree wood … regardless of the finish, the surface finish of the face ply is always transparent ….
The center ply is composed of different types of materials. In the center ply’s middle section are slats of solid coniferous wood (pine or spruce), measuring approximately 30mm in width, which slats are laid side-by-side, but are separated from each other by a space which can range from 0.5-3.0mm. These slats are not glued together … The wood slats and the … rails in the center ply are not glued to each other, but are just glued to the face ply and the bottom ply ….
… the HWPW [high weight proportional wood] and rail slats are embedded with a special plastic locking mechanism which runs the length of the rail. This plastic locking mechanism, as well as the special contoured edging of the rails enables the wood panel to be locked in place side by side. The locking mechanism and the entire locking system are patented products that distinguish these wood flooring panels from others. …
The bottom ply is composed [of] solid coniferous wood (pine or spruce) and is glued to the center ply with a urea-formaldehyde adhesive applied under pressure ….
Below are images of the provided sample:
ISSUE:
Whether the three-ply flooring panel is classifiable as a “blockboard” and “plywood” under subheading 4412.94, HTSUS, or as “other” wood flooring under subheading 4412.99, HTSUS.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The HTSUS subheadings under consideration are as follows:
4412 Plywood, veneered panels and similar laminated wood:
Other:
4412.94 Blockboard, laminboard and battenboard:
With at least one outer ply of nonconiferous wood:
Plywood:
Not surface covered, or surface covered with a clear or transparent material which does not obscure the grain, texture or markings of the face ply:
4412.94.10 With a face ply of birch (Betula spp.)
4412.94.31 Other
. . .
4412.99 Other:
With at least one outer ply of nonconiferous wood:
Other:
4412.99.51 Other
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 44.12 states, in relevant part:
This heading covers:
(1) Plywood consisting of three or more sheets of wood glued and pressed one on the other and generally disposed so that the grains of successive layers are at an angle; this gives the panels greater strength and, by compensating shrinkage, reduces warping. Each component sheet is known as a “ply” and plywood is usually formed of an odd number of plies, the middle ply being called the “core”.
(2) Veneered panels, which are panels consisting of a thin veneer of wood affixed to a base, usually of inferior wood, by glueing under pressure.
Wood veneered on to a base other than wood (e.g., panels of plastics) is also classified here provided it is the veneer which gives the panel its essential character.
(3) Similar laminated wood. This group can be divided into two categories:
Blockboard, laminboard and battenboard, in which the core is thick and composed of blocks, laths or battens of wood glued together and surfaced with the outer plies. Panels of this kind are very rigid and strong and can be used without framing or backing.
Panels in which the wooden core is replaced by other materials such as a layer or layers of particle board, fibreboard, wood waste glued together, asbestos or cork….
At GRI 1, there is no dispute that the merchandise is classified in heading 4412, HTSUS because this heading provides eo nomine for plywood, veneered panels, and similar laminated wood. Rather, the issue is the proper classification at the subheading level. As a result, GRI 6 applies.
You claim that the products are veneered panels that are not blockboard, laminboard or battenboard, and should be classified as “other” wood flooring under subheading 4412.99.51, HTSUS, as there are small spaces between the lumber blocks within the panel core. You cite to
NY N242974, dated July 10, 2013, where CBP classified a multilayered wood flooring panel as other wood flooring in subheading 4412.99.51, HTSUS.
In Boen Hardwood Flooring, Inc. v. United States, 357 F.3d 1262, 1265 (Fed. Cir. 2004), the Court of Appeals for the Federal Circuit determined that “plywood” has “at least three layers,” that “each layer must be arranged at a right angle to its adjacent layer,” and that “the layers must be bonded together.” The court held that there is “no requirement that each layer be constructed in a certain manner” and that the terms “sheet” and “veneer” are “not limited to a continuous expanse” and that “plywood” “encompasses a product whose middle layer is composed of slats or strips with minor spacing between them.” Id. The court classified the three-layer panels constructed of two hardwood strips, with a core constructed of spruce slats laid lengthwise, with minor spacing between each piece of the core as plywood under heading 4412, HTSUS, specifically under subheading 4412.29.10, HTSUS, which covered plywood with a birch face ply, and under subheading 4412.29.30, HTSUS, as a mix of hardwoods not directly referenced in the HTSUS.
There is no requirement in EN 44.12 of alternating grain angles in the layers of a veneered panel. The multilayered wood flooring panel in NY N242974 did not meet the definition of “plywood” because the core ply had grains that were both parallel and perpendicular to the successive layers. It was classified as a “veneered panel” because a thin veneer of wood was affixed to the base by glueing under pressure. The wood flooring in NY N242974 is distinguishable from the instant merchandise in its construction. The product in NY N242974 had a core ply with grains that were both parallel and perpendicular to those of the successive plies. In NY N304028, the product is “plywood” because the core layer is constructed of wood blocks with the grains of each being oriented at 90 degrees to those of the face and back plies. As the court held in Boen, supra the spacing between the core lumber blocks is irrelevant. Further, the plastic locking mechanism which runs the length of the center ply does not distinguish these wood flooring panels from others.
We note that the current product also meets the definition of blockboard panels in the ENs because “the core is thick and is composed of blocks, … of wood glued together and surfaced with the outer plies.” EN 44.12. It is immaterial whether the blocks are glued to each other or have minor spaces between them. See Boen, supra. Thus, the instant three-ply wood flooring panel is both plywood and blockboard..
Even if the instant three-ply wood flooring panel were not blockboard, it still would not be classifiable in subheading 4412.99.51, HTSUS, because it is “plywood” and classification under the “other” provision of subheading 4412.99.51, HTSUS, would be precluded.
Therefore, we affirm our finding in NY N304028 that the flooring panels meet the terms of subheading 4412.94.1050, HTSUSA, as “Plywood, veneered panels and similar laminated wood: Other: Blockboard, laminboard and battenboard: With at least one outer ply of nonconiferous wood: Plywood: Not surface covered, or surface covered with a clear or transparent material which does not obscure the grain, texture or markings of the face ply: With a face ply of birch (Betula spp.): Other” and under subheading 4412.94.3105, HTSUSA, as “Plywood, veneered panels and similar laminated wood: Other: Blockboard, laminboard and battenboard: With at least one outer ply of nonconiferous wood: Plywood: Not surface covered, or surface covered with a clear or transparent material which does not obscure the grain, texture or markings of the face ply: Other: Wood flooring.” We note that CBP previously classified Barlinek flooring panels of the same construction in subheadings 4412.94.10 and 4412.94.31, HTSUS, in NY N011028, dated June 11, 2007.
HOLDING:
By application of GRIs 1 and 6, the three-ply wood flooring panels in in NY N304028 are classified under heading 4412, HTSUS, and specifically provided for in subheadings 4412.94.1050 and 4412.94.3105, HTSUSA. The column one, general rate of duty for subheading 4412.94.1050, HTSUSA is free. The column one, general rate of duty for subheading 4412.94.3105, HTSUSA is 8% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov/current.
EFFECT ON OTHER RULINGS:
HQ N304028, dated April 29, 2019, is hereby AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division