CLA-2 OT:RR:CTF:TCM H017035 KSH
Port Director
U.S. Customs and Border Protection
555 Battery Street San Francisco, CA 94111
RE: Internal Advice Request No. 07/019; Classification of “Active Floor Panels”
Dear Port Director: This ruling is in response to a request for Internal Advice initiated by the Law Offices of George Tuttle, on behalf of their client, Kahrs International, Inc. At issue is the proper classification of “Active Floor Panels”, classified at the time of entry in subheading 4412.99.5100 of the Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “Plywood, veneered panels and similar laminated wood: Other: Other: With at least one outer ply of nonconiferous wood: Other: Other.” You classified the product in subheading 4418.72.9000, HTSUS, which provides for “Builders’ joinery and carpentry of wood, including cellular wood panels and assembled flooring panels; shingles and shakes: Assembled flooring panels: Other, multilayer: Other.” The request for internal advice is sought based on the importer’s disagreement with CBP’s classification. The importer asserts that proper classification is in subheading 4412.99.5100, HTSUS.
FACTS:
The merchandise at issue is identified as 30 mm “Active Floor Panels.” They are 15 mm thick and 205 mm wide. They are constructed from a veener face, lumber strips core and a veneer back. The face is approximately 3.6 mm thick. The panel is tongue and grooved on the edges and ends. A strip of fiberboard measuring 6 mm in thickness and 80 mm wide has been glued to the back of the flooring panel along one edge. A combination foam/rubber strip which measures 9 mm thick and 80 mm wide is then glued to the fiberboard. The fiberboard and foam/rubber strip is attached to the flooring panels after the three plys are laminated together. The flooring panels are designed for use as flooring for sporting activities.
ISSUE:
Whether the floor panels are classified in heading 4412, HTSUS, as plywood, veneer or similar laminated wood or heading 4418, HTSUS, as multi-layer assembled flooring.
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). 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 GRI may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Heading 4412, HTSUS, provides for “Plywood, veneered panels and similar laminated wood.” The EN to heading 4412, HTSUS, 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.
* * *
The products of this heading remain classified herein whether or not they have been worked to form the shapes provided for in respect of the goods of heading 44.09, curved, corrugated, perforated, cut or formed to shapes other than square or rectangular and whether or not they have been worked at the surface, the edge or the end, or coated or covered (e.g., with textile fabric, plastics, paint, paper or metal) or submitted to any other operation, provided these operations do not thereby give such products the essential character of articles of other headings.
The heading also covers plywood panels, veneered panels and panels of similar laminated wood, used as flooring panels, some of which are referred to as “parquet flooring”. These panels have a thin veneer of wood affixed to the surface, so as to imitate an assembled flooring panel.
The heading also excludes :
* * *
Cellular wood panels and assembled flooring panels, including
parquet flooring panels, or tiles including those consisting of wooden blocks, strips, friezes, etc., assembled on a support of one or more layers of wood and known as “multilayer” parquet flooring panels (heading 44.18).
* * *
Heading 4418, HTSUS, provides for “Builders' joinery and carpentry of wood, including cellular wood panels and assembled flooring panels; shingles and shakes.” The EN to heading 4418, HTSUS, provides in relevant part:
This heading also covers solid blocks, strips, friezes, etc., assembled into flooring panels (including parquet panels) or tiles, with or without borders. It also includes flooring panels or tiles consisting of blocks, strips, friezes, etc., assembled on a support of one or more layers of wood, known as “multilayer” parquet flooring panels. The top layer (wear layer) is commonly made from two or more rows of strips making up the panel. These panels or tiles may be tongued and grooved at the edges to facilitate assembly.
Classification in heading 4418, HTSUS, is governed by Additional U.S. Note 4 to Chapter 44, HTSUS. It states, in relevant part:
4. Heading 4418 includes--
(b) multi-layer assembled flooring panels having a face ply 4 mm or more in thickness.
At issue is whether the addition of the fiberboard strip and foam/rubber strip to the panels after manufacture give the floor panel the character of another heading other than heading 4412, HTSUS.
In Boen Hardwood Flooring, Inc. v. United States, 357 F.3d 1262, the Court of Appeals for the Federal Circuit set forth the common characteristics of plywood. They are (1) there must be at least three layers; (2) each layer must be arranged at a right angle to its adjacent layer; and (3) the three layers must be bonded together. Id. at 1264.
Inasmuch as the strips of fiberboard and foam/rubber do not have a grain, counsel argues that the flooring panels fall outside the scope of plywood. Counsel further argues that the fiberboard and foam/rubber do not extend throughout the panel because it is designed to provide an energy-absorbing construction. Counsel maintains that the fiberboard and foam/rubber strips give the flooring panels their essential character. Further, counsel adds that the flooring panels cannot be classified in heading 4418 because Note 4(b) to heading 4418, HTSUS, excludes flooring whose face is not at least 4 mm thick. Accordingly, counsel states that the flooring panels are classified as veneered panels and similar laminated wood.
The veneer face, lumber strips core and veneer back meet the definition of plywood as they consist of at least three layers which are arranged at a right angle to the adjacent layer and the layers are laminated together. However, once the panel is formed, a strip of fiberboard and a strip of foam/rubber has been glued to the panel. The addition of the strips to the existing panel preclude it from classification as a veneered panel or similar laminated wood.
The EN’s state that the products of the heading remain classified therein whether or not they have been subjected to some other operation provided it does not give the product the essential character of another heading. We agree that the addition of the fiberboard and foam/rubber strips are integral to the structure and intended use of the flooring. As such, these operations cause the flooring panel to loose the character of a product of heading 4412, HTSUS. Rather, they are more accurately described by the terms of heading 4418, HTSUS, as an assembled flooring panel.
Additional U.S. Note 4(b) to Chapter 44, HTSUS, states that heading 4418 “includes multi-layer assembled flooring panels having a face ply 4 mm or more in thickness.” It is an inclusive provision rather than an exclusive provision. In the instant matter, the face ply is not determinative of classification. As noted above, the flooring panels cannot be classified in heading 4412, HTSUS, because the presence of the fiberboard and foam/rubber strips causes the flooring panels to have the character of products of heading 4418, HTSUS. Thus, they are classified in heading 4418, HTSUS.
HOLDING:
Pursuant to GRI 1, the “Activity Floor Panels” are classified in heading 4418, HTSUS. They are provided for in subheading 4418.72.9000, HTSUS, which provides for “Builders' joinery and carpentry of wood, including cellular wood panels and assembled flooring panels; shingles and shakes: Assembled flooring panels: Other, multilayer: Other.” The general, column one rate of duty at the time of entry was 8% ad valorem.
You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel and to the public on the CBP Home Page on the World Wide Web at
www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division