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HQ 082805


January 13, 1989

CLA-2 CO:R:C:G 082805 JLJ

CATEGORY: CLASSIFICATION

TARIFF NO.: TSUS 202.03; 202.09; 202.18; 4407.10.00

Mr. Joseph Kaplan, Esquire
Ross & Hardies
529 Fifth Avenue
New York, New York 10017-4609

RE: Tariff classification of rectangular boards which have been cut to certain sizes, surfaced, eased and square cut.

Dear Mr. Kaplan:

In your letter of September 15, 1988, you requested a reconsideration of New York letter 828524 of April 26, 1988, concerning certain softwood boards imported from Canada by your client, National Frame Company. New York letter 828524 classified the boards under the provisions for softwood lumber in items 202.03, 202.09, and 202.18, Tariff Schedules of the United States (TSUS), depending upon the species of the wood, and under the provision for coniferous wood sawn or chipped lengthwise in item 4407.10.00, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue consists of various size boards, e.g, 3/4 inch by 1-1/2 inches, 3/4 inch by 2-1/2 inches, and 3/4 inch by other widths up to 5 1/2 inches, in varying lengths up to 7 feet. The boards are of spruce, pine or fir (i.e, softwood). The samples submitted have square cut ends. They have been surfaced and eased on one or both edges.

ISSUE:

Is the instant merchandise classified under the provisions for lumber, rough, dressed, or worked, softwood, in items 202.03, 202.09, and 202.18, TSUS, or it is classified under the provision for wood blocks, blanks, or sticks, rough shaped by boring,
hewing or sawing so as to be dedicated to finishing into specific items such as gunstocks, lasts, heels, handles, oars, shuttles, archery bows, or billiard cues, other, in item 200.55, TSUS? How is the instant merchandise classified under the HTSUSA?

LAW AND ANALYSIS:

Headnote 2(a) of Subpart 1B, Schedule 2, TSUS, defines "lumber" as follows:

A product of a sawmill or sawmill and planing mill derived from a log by lengthwise sawing which in its original sawed condition has at least 2 approximately parallel flat longitudinal sawed surfaces, and which may be rough, dressed, or worked, as set forth below:

(i) rough lumber is lumber just as it comes from the saw, whether in the original sawed size or edged, resawn, crosscut, or trimmed to smaller sizes;

(ii) dressed lumber is lumber which has been dressed or surfaced by planing on at least one edge or face; and

(iii) worked lumber is lumber which has been matched (provided with a tongued-and- grooved joint at the edges or ends), shiplapped (provided with a rabbetted or lapped joint at the edges), or patterned (shaped at the edges or on the faces to a patterned or molded form) on a matching machine, sticker, or molder.

While softwood lumber from Canada classified in items 202.03, 202.09, and 202.18, TSUS, is free of duty, since January 8, 1987, it has been subject to a 15 percent export charge levied by the Canadian Government under the Memorandum of Understanding (MOU) of December 30, 1986.

You argue that the instant merchandise should be classified as wood blanks, rough shaped by boring, hewing or sawing so as to be dedicated to finishing into specific items like gunstocks, lasts, heels, handles, oars, shuttles, archery bows, or billiard cues, in item 200.55, TSUS. You claim that the instant boards are dedicated to use as bed rail frames and slats and cannot be
used for anything other than box spring frames because they have been cut to certain dimensions. You cite United States v. F. B. Vandegrift & Co., Inc., 44 CCPA 15, C.A.D. 628 (1956), in support of your position. You maintain that additional processing, including precision cutting and radiusing, removes the instant boards from the lumber provisions. Finally, you contend that the boards are more specifically described as wood blanks shaped by sawing so as to be dedicated to finishing into specific items than as lumber, citing General Interpretative Headnote 10(c), TSUS.

Initially we note that the final cutting (i.e, cutting to the exact size needed), radiusing (i.e, cutting some of the ends in a curve to make them in the shape of the bed frame), and finishing are done after the instant merchandise is imported, as stated in National Frame Company's affidavit of July, 1988. Prior to importation, the instant boards have been kiln dried, cut to rough sizes, surfaced, square cut on the ends and eased (i.e, rounded slightly on the edges). None of these operations would serve to remove the instant boards from the category of "lumber" as defined in Headnote 2(a), supra.

You cite United States v. F.B. Vandegrift & Co., Inc., supra, for the proposition that if an article has been designed and processed with a single purpose in mind and made to specifications which peculiarly adapt it to that end, it may be considered dedicated to that purpose.

In A.N. Deringer v. United States, 61 Cust. Ct. 66, C. D. 3530 (1968), the court held that "horse feathers," articles of wood which were made by sawing logs into boards, resawing the boards longitudinally, and then bevel cutting the resawn boards, were lumber notwithstanding the fact that they were known by a different name than lumber and notwithstanding the fact that their character was so changed that they were useful for only a single purpose. The court observed that the horse feathers were not so advanced as dressed or worked lumber. It concluded that the classification of horse feathers as lumber was not precluded by the fact that they could only be used for a definite purpose.

In Pacific Hardwood Sales Co., Judson Sheldon International Corp. v. United States, 64 Cust. Ct. 68, C.D. 3960 (1970), edge- glued hardwood which had been cut, surfaced, eased and grooved and which was further processed after importation by precision cutting, sanding and dovetailing for use in making drawer sides was held to be lumber even though it was "used for one thing only." The court held that the merchandise at issue fit the specific provision for hardwood lumber.

In C.T. Takahashi & Co., Inc. v. United States, 74 Cust. Ct. 38 (1975), the court held that plywood panels which had been V- grooved, sanded and prefinished, were still classified as plywood. The court also said that the mere fact that the plywood panels had been cut and made suitable for a particular use would not prevent their classification under the provision for plywood.

The Court of Customs and Patent Appeals held in B.A. McKenzie & Co., et al. v. United States, 47 CCPA 42, C.A.D. 726 (1959), that plywood panels known as "doorskins," which were made to the importer's manufacturing specifications as to quality, finish, thickness and size and which were used extensively in the manufacture of flush panel doors, not carried as stock items by dealers, and ordered and manufactured according to the specifica- tions of door manufacturers were still classified as plywood. The court held that the evidence did not establish that the dimensions of the imported plywood panels made them articles distinct from plywood which could no longer be used for a large portion of the potential uses of plywood. The court also held that neither the importer's intent nor the actual uses of the panels were alone determinative of the proper tariff classification.

Customs has previously ruled on similar merchandise. In Customs Headquarters Ruling Letter (HRL) 040369 of May 29, 1975, we held that similar merchandise imported from Canada, intended for use in bed frames after additional processing in the United States, was classified under the tariff provisions for softwood lumber in items 202.03 through 202.30, TSUS. In HRL 079308 of August 11, 1987, we held that Canadian softwood lumber used in the manufacture of box spring frames was classified under the softwood lumber provisions. HRL 079308 held that such lumber was classified in subheading 4407.10.00, HTSUSA.

While it would be inappropriate for us to rule on the applicability of the Canadian export charge, for your informa- tion, we note that both item 200.55, TSUS, and items 202.03, 202.09 and 202.18, TSUS, are free of duty, but that the 15 percent export charge under the MOU applies only to the lumber tariff provisions. However, the December 16, 1987, amendment of the MOU explicitly includes "box spring mattress frame components" in Appendix E, which amends Appendix B of the MOU. Appendix B covers further manufactured products. Box spring mattress frame components are defined in Appendix E as "Pre-cut frame components...supplied to manufacturers of box spring mattresses which use the components for side rails, end rails, slats, etc., in box spring mattress frames. Such components are supplied to customer specifications." Items covered by Appendix B are subject to an export charge of 15 percent of the certified
value of the softwood lumber inputs used in the manufacture of the items. Inasmuch as both softwood lumber and boxspring mattress frame components are covered by the MOU, it would seem clear that the intent behind the MOU was to cover this merchandise.

HOLDING:

Following the cases and ruling letters cited above, we find that the instant softwood boards are classified as lumber in items 202.03, 202.09 and 202.18, TSUS, depending upon the species of the wood involved. Effective January 1, 1989, the HTSUSA has replaced the TSUS. The applicable subheading for the lumber under the HTSUSA is 4407.10.00, which provides for wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or fingerjointed, of a thickness exceeding 6 millimeters, coniferous.

Sincerely,

John Durant, Director

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