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HQ 088538

March 2, 1992

CLA-2 CO:R:C:T 088538jlj

CATEGORY: CLASSIFICATION

TARIFF NO.: 4412.29.5000

District Director
U. S. Customs Service
P. O. Box 1490
St. Albans, Vermont 05478

RE: Decision on Application for Further Review of Protest No. 0201-90-000084; Classification of strips of laminated wood; Heading 4412

Dear Sir:

This protest was filed against your decision in the liquidation of certain entries covering strips of laminated wood imported from Canada. A sample was submitted to Customs Headquarters along with this protest.

FACTS:

The merchandise in question is strips of wood which appear to have been cut to size from laminated panels consisting of 13, 17, or 19 veneer plies. The grain of each ply runs in the same direction--along the length of the wood strip. The wood used is either birch or aspen.

The instant merchandise comes in various dimensions, e.g., .785 inch wide by 1.18 inch thick by 53 inches long, 19 ply. The wood strips are used in the manufacture of hockey sticks. They are rectangular pieces of wood cut to size but not further processed in any manner.

The protestant states that the wood strips are material used in the manufacture of hockey sticks. In the United States, each imported laminated strip is shaped, removing about 5 percent of the wood. Fiberglass may then be attached to each side of the wood strip. The strip is then prepared to accept the blade. The instant merchandise was liquidated under the provision for plywood, veneered panels and similar laminated wood: other, with at least one outer ply of nonconiferous wood: other: other, in subheading 4412.29.5000, HTSUSA.

ISSUE:

Are the instant laminated wood strips classified in Heading 4412, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for plywood, veneered panels and similar laminated wood, or in Heading 9506, HTSUSA, which provides for articles and equipment for gymnastics, athletics, or other sports or outdoors games?

LAW AND ANALYSIS:

Articles are classified under the HTSUSA in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that the classification of articles is determined by the terms of the headings and any relative section and chapter notes. The competing provisions are listed above under "Issue."

Chapter Note 1 (p) of Chapter 44, HTSUSA, states that:

1. This chapter does not cover:

(p) Articles of Chapter 95 (for example, toys, games, sports equipment);

This chapter note means that, if the instant merchandise is found to be properly classified in Chapter 95, HTSUSA, as unfinished parts of hockey sticks it cannot be considered for classification in Chapter 44, HTSUSA.

Counsel for the protestant claims that the instant laminated wood strips should be classified in subheading 9506.99.2540, HTSUSA, which provides for articles and equipment for gymnastics, athletics, other sports or outdoor games: other: other: ice hockey and field hockey articles and equipment, and parts and accessories thereof. He contends that the instant wood strips are unfinished ice hockey sticks.

Counsel cites GRI 2 (a), HTSUSA, which states as follows:

Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or unfinished article.

He argues that the wood strips are unfinished ice hockey shafts which have the essential character of the finished shafts. He states that the instant strips are made to the specifications of the ice hockey stick manufacturer and are used only to make the finished ice hockey shafts. He cites United States v. John A. Steer Co., 46 CCPA 132, C.A.D. 715 (1959) for the legal principle that the strips are a part of the ice hockey sticks.

Counsel also cites American Import Co. v. United States, 26 CCPA 72, C.A.D. 4121 (1938), for the principle that an article may be classified under an eo nomine provision if that article has been so far processed toward its ultimate completed form as to be dedicated to the making of that article or has been so far advanced beyond the stage of materials as to be dedicated to and commercially fit only for use on the particular article.

Counsel claims that GRI 3 (a), HTSUSA, which states that the most specific heading shall be preferred to headings providing a more general description, mandates that the strips be classified in subheading 9506.99.2540, HTSUSA, rather than in subheading 4412.29.5000, HTSUSA.

He reiterated the arguments above in written submissions dated May 21, 1991, June 25, 1991, and July 8, 1991, as well as in his initial brief submitted with the protest. He amplified his position at conferences held April 19, 1991, and June 27, 1991, at Customs Headquarters with personnel from this office.

He submitted letters from two United States importers of the instant merchandise and from the protestant which state that the strips are designed to be used as parts of ice hockey sticks.

At the second conference and in his submission of July 8, 1991, counsel raised for the first time the issue of whether the instant merchandise constituted "blanks" for tariff purposes. The Explanatory Notes for GRI 2 (a), HTSUSA, define "blanks" as follows:

(II) The provisions of this rule also apply to blanks unless these are specified in a particular heading. The term "blank" means an article, not ready for direct use, having the approximate shape or outline of the finished article or part, and which can only be used, other than in exceptional cases, for completion into the finished article or part.

Semi-manufactures not having the essential shape of the finished articles (such as is generally the case with bars, discs, tubes, etc.) are not regarded as "blanks".

Counsel argues that the instant merchandise constitutes blanks for unfinished parts of hockey sticks for the following reasons:

1. They are not ready for direct use because they must undergo shaping;

2. They have the approximate shape and size of the finished shafts because only a little processing is necessary to make them into the finished shafts; and

3. They can only be used and are only used for completion into finished shafts, which are used only for incorporation into finished sticks.

Chapter Note 4 of Chapter 44, HTSUSA, says the following:

4. Products of Heading 4410, 4411 or 4412 may be worked to form the shapes provided for in respect of the articles of heading 4409, 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.

This chapter note gives a broad interpretation to the headings it mentions, including Heading 4412. It indicates that the merchandise in Heading 4412 may be processed in a vast variety of ways and still be classified in that heading, as long as it does not take on the character of another heading.

The "shapes provided for" in Heading 4409 include wood which has been continuously shaped along any of its edges or faces and which has been planed, sanded or end-jointed. Heading 4409 also provides for tongue and grooved wood (where one edge is grooved and the other is tongued or flanged), for chamfered boards (those in which one or more corners have been removed lengthwise at an angle to the face and the edge), for rebated boards (those in which one or both edges have been cut to form a step), for round- edged boards, for V-jointed wood (wood tongued and grooved with chamfered edges) and center-V-jointed wood (wood with a V-shaped channel in the center of the board and also usually tongued and grooved and sometimes chanfered at the edges), for beaded wood (wood which has been tongued and grooved with a simple bead between the edge and the tongue) and center-beaded wood (which has been tongued and grooved with a simple bead along the center of the face), molded wood (strips of wood shaped to various contours), and rounded woods (dowelling and woods with round cross sections).

The variety and the complexity of the operations allowed under Heading 4412, as indicated by the examples given above, is so vast that the simple operation performed upon the instant merchandise (i.e., cutting to size) is without question included within the scope of that heading. In its condition as imported, the instant strips have been cut from a larger laminated sheet. An examination of the sample shows that it is a rectangular piece of wood cut to size but not further processed in any way.

In the wood industry, cutting to size is a common operation which is not regarded as imparting specific characteristics to the wood nor removing it from the material state. For instance, lumber and panels are cut to size but are still regarded as material by the industry and for tariff classification purposes.

At the time of importation, the instant wood strips do not have the essential character of unfinished hockey sticks nor parts for hockey sticks. They have been cut to size, but they have not been so far advanced in manufacture as to be commercially fit only for use in hockey sticks. The instant strips are still merely pieces of wood which could be used for any number of things. There is nothing about the instant sticks which would dedicate them to use as ice hockey sticks.

Even articles which have been much further advanced than the instant strips have been held to be materials for tariff purposes. In A. N. Deringer v. United States, 61 Cust. Ct. 66, C. D. 3530 (1968), the court held that "horsefeathers," 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 their character was so changed that they were useful for only a single purpose and notwithstanding the fact that they were known by a different name than lumber. 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 hardboard 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, C. D. 4583 (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.D. 726 (1959), that plywood panels known as "doorskins," which were made to the importer's specifications as to quality, finish, thickness and size and which were used extensively in the manufacture of flush door panels, not carried as stock items by dealers, and ordered and manufactured according to the specifications 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.

Counsel argues that the instant merchandise constitutes blanks for ice hockey stick shafts. As set forth above, the Explanatory Note for GRI 2(a), HTSUSA, state that the term "blank" means an article which has the approximate shape or outline of the finished article or part. The Explanatory Notes further state that semi-manufactures not having the essential shape of the finished articles are not regarded as blanks.

The instant merchandise is rectangular strips of wood which have not been shaped in any way to resemble the shafts of ice hockey sticks. They do not have the approximate shape or outline of finished ice hockey sticks or shafts. As such, they do not constitute blanks for ice hockey stick shafts. The instant merchandise is merely laminated pieces of wood. This merchandise is provided for eo nomine in Heading 4412, HTSUSA.

Following the reasoning above, we find that the instant cut to size strips of laminated wood are classified as laminated wood rather than as unfinished hockey sticks.

HOLDING:

The instant strips of wood are classified in subheading 4412.29.5000, HTSUSA, dutiable at the rate of 4 percent ad valorem. Products of Canada which are classified in this provision and which meet all the requirements of the United States-Canada Free Trade Agreement are eligible for a duty rate of 0.8 percent ad valorem.

The protest should be denied in full. A copy of this decision should be sent to the protestant along with the CF 19 Notice of Action.

Sincerely,

John Durant, Director

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