CLA-2-44:OT:RR:NC:2:230
Stephen J. Leahy, Esq.
Law Office of Stephen J. Leahy
175 Derby Street, Suite 9
Hingham, MA 02043
RE: The tariff classification of surface finished solid maple flooring from Canada
Dear Mr. Leahy:
In your letter dated April 23, 2008, on behalf of your client, Metropolitan Hardwood Floors Inc., you requested a tariff classification ruling.
A representative sample of the solid maple flooring was submitted and will be returned as you requested. The sample is tongued and grooved on the edges and the ends. It measures approximately 18 mm thick, 12” long x 3-1/2” wide, and it is stated to be surface finished.
You state that the finishing materials are furnished by Treffert Industrial Wood Coatings of China. You have provided the name and chemical breakdown for each type of coating used in the finishing process. The coatings are as follows:
1. UV-Filler,
2. UV-Duro Sealer,
3. UV Sandable Sealer,
4. UV-PU Insulation Coat,
5. HPC Anti Scratch Top Coat.
The wood is finished with one or more coatings of each of the above materials. The desired finish will dictate how many coatings of each material will actually be used on the wood, but at least one coating of each of the above materials will be used.
You contend that the subject wood flooring should be classified in subheading 4409.29.25, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for other, other wood flooring. You have present two positions in support of your claim. In the first position, you believe that we should exclude the possible classification of the subject product under subheading 4409.29.05, HTSUS, based on the construction of the language of this subheading. Your second position is based on your opinion that the materials used to finish the flooring boards should be considered varnish.
It is your opinion that subheading 4409.29.0500, HTSUS, does not include products that are surface finished because the language of this subheading includes the following phrase: “…all of the foregoing whether or not planed, sanded or end-jointed.” You believe that this phrase restricts subheading 4409.29.0500, HTSUS, to products that are simply planed, sanded, or end-jointed. We do not agree for two reasons.
First, the same phrase appears at the heading level of 4409, HTSUS. Thus, if we were to follow your proposed interpretation, heading 4409, HTSUS, would not provide for any surface covered products, an obvious contradiction to the Explanatory Notes and the terms of heading 4409, HTSUS.
Second, in the phrase “…all of the foregoing whether or not planed, sanded or end-jointed,” the operative term is “whether or not.” This is not a restrictive term, but rather it is an inclusive one.
There are three competing provisions for the subject wood flooring, and they are as follows:
1. Subheading 4409.29.0555, HTSUS, which provides for: Wood (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rebated, chamfered, V-jointed, beaded, molded, rounded or the like) along any of its edges, ends or faces, whether or not planed, sanded or end-jointed: Nonconiferous: Other (than coniferous or bamboo): Wood continuously shaped along any of its ends, whether or not also continuously shaped along any of its edges or faces, all the foregoing whether or not planed, sanded or end-jointed: Wood Flooring (end-matched): other. The general rate of duty is 3.2 percent ad valorem.
2. Subheading 4409.29.2530, HTSUS, which provides for: Wood (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rebated, chamfered, V-jointed, beaded, molded, rounded or the like) along any of its edges, ends or faces, whether or not planed, sanded or end-jointed: Nonconiferous: Other (than coniferous or bamboo): Other: Wood flooring, Maple (Acer spp.). The general rate of duty is free.
3. Subheading 4418.90.4605, HTSUS, which provides for: Builders’ joinery and carpentry of wood, including cellular wood panels and assembled flooring panels; other: Other: Wood flooring. The general rate of duty is 3.2 percent ad valorem.
The classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) is governed by the General Rules of Interpretation (GRIs), taken in order. GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. In the event that goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs will be applied, in the order of their appearance.
The hierarchal arrangement of the headings and subheadings of the Schedule mandates that in order to classify an article at the six, eight or ten digit levels, the criteria at the four digit level must first be satisfied.
The subject wood flooring boards are tongued and grooved on the edges and the ends. Therefore, subheading 4409.29.05 is the first and most specific provision at the 8-digit level. It provides for wood continuously shaped along any of its ends, whether or not also continuously shaped along any of its edges or faces, all the foregoing whether or not planed, sanded or end-jointed. We do not need to consider any of the less specific provisions under heading 4409, HTSUS.
Subheading 4409.29.25, HTSUS, is not a viable competing provision for the subject flooring boards. The only two remaining competing provisions are as follows: subheading 4409.29.0555, HTSUS, and subheading 4418.90.4605, HTSUS.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and the General Rules of Interpretation. While neither legally binding nor dispositive of classification issues, the ENs provide commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
The General ENs to Chapter 44 state as follows:
Generally speaking, throughout the Nomenclature, the classification of wood is not affected by treatment necessary for its preservation …; nor is it affected by reason of being painted, stained or varnished.
In addition, the ENs to heading 44.09 state as follows:
The heading also excludes:
(e) Wood which has been surface worked beyond planing or sanding, other than painting, staining or vanishing (e.g. veneered, polished, bronzed, or faced with metal leaf) (generally heading 44.21). (Emphasis in original.)
The ENs tell us that under heading 4409 there are limitations as to the type of surface working that can be performed on the provided products and remain classified in the heading. However, there are three surface processes that are allowed, painting, staining, or vanishing. In the present case, you believe that the surface coatings used to finish the subject flooring boards should be considered “varnish,” and the flooring boards classified under subheading 4409.29.25, HTSUS. As we have already determined, subheading 4409.29.25, HTSUS, is not a viable competing provision. Thus, we will only consider subheading 4409.29.0555, HTSUS, and subheading 4418.90.4605, HTSUS.
You believe that the coatings described above, which are more fully detailed in your letter, should be considered “varnish.” You have cited a number of internet sources describing “varnish,” e.g., http://en.wikipedia.org/wiki/Varnish. In this article “varnish” is described as being a combination of a drying oil, a resin, and a thinner or solvent. The Encyclopedia Britannica Online gives a similar description.
When a wood product is said to have been "polyurethaned" or "varnished," it generally has gone through a series of actions or processes. Some of the processes include sanding, the application of fillers, the application of sealers, and the application of hardeners, e.g., aluminum oxide. Thus, the question is more complex than determining if polyurethane is a varnish. Rather, we need to determine if the entire finishing process has made a product of heading 4409 "surface worked beyond planing or sanding, other than painting, staining or varnishing". (See ENs to 4409, exclusion (e), supra.)
Exclusion (e) to the ENs of heading 4409 should be read within the context of treatment of wood beyond its preservation, including when the preservation is accomplished by processes such as painting, staining, and varnishing. It excludes products that have gone through complex finishing processes, e.g., polishing, bronzing, and metal leaf application. The finishing process that you describe as a “polyurethane” application is a complex and a multi-step and multi-compound procedure. The finishing process does not simply preserve the wood, but it gives the wood specific engineered properties. The subject wood flooring is surfaced in an at least a five step multi-compound procedure, which is well beyond any surface coating that could reasonably be considered “varnish.”
The finishing process described above ("polyurethaning" or “varnishing”) regarding the subject flooring, specifically the application of fillers, sealers, urethane, waxes, and aluminum oxide, is beyond the processes allowed under heading 4409, HTSUS, that is, planing, sanding, painting, staining, or varnishing. Thus, the subject finished wood flooring is excluded from heading 4409, HTSUS. CBP has consistently recognized that a “polyurethane” process is not “varnish.” (See rulings NY L82292, NY K88580, NY K82706, and HQ 955712.)
The ENs to heading 4418 state as follows:
This heading applies to woodwork … used in the construction of any kind of building, etc., in the form of assembled goods or as recognizable unassembled pieces (e.g., prepared with tenons, mortises, dovetails or similar joints for assembly) …
We find that the subject solid, face finished wood flooring is encompassed within the terms of heading 4418, HTSUS.
The applicable tariff provision for the finished wood flooring will be subheading 4418.90.4605, HTSUS, which provides for other builders’ joinery and carpentry of wood, other, other, wood flooring. The general rate of duty will be 3.2 percent 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 on World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Paul Garretto at 646-733-3035.
Sincerely,
Robert B. Swierupski
Director,
National Commodity
Specialist Division