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HQ 950682


June 16, 1992

CLA-2 CO:R:C:T 950682 CRS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4421.90.9040

Area Port Director
United States Customs Service
9901 Pacific Highway
Blaine, WA 98320

RE: Application for further review of Protest No. 30041-000158; tree stakes; EN 44.04.

Dear Sir:

Protest No. 30041-000158 dated July 2, 1991, filed by Norman G. Jensen, Inc., on behalf of North Idaho Post & Pole, has been referred to this office for further review. Our decision follows below.

FACTS:

The merchandise at issue consists of tree stakes made from lodgepole pine logs approximately three and one-half inches in diameter. The cut logs are fed into a machine containing several cutting knives. The knives remove the bark and a portion of the wood to produce finished "stakes" with a uniform diameter of approximately two inches. The finished tree stakes have a diameter of two inches, are pointed at one end, and chamfered at the other. The stakes are available in six, eight, ten and twelve foot lengths.

Protestant contends that the tree stakes in question are classifiable as stakes of subheading 4404.10.0080, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

ISSUE:

The issue presented is whether tree stakes, pointed at one end and chamfered at the other, with a uniform diameter of two inches throughout most of the length, are classifiable as stakes of wood, or under a residual provision for other articles of wood.

LAW AND ANALYSIS:

Heading 4404, HTSUSA, provides, inter alia, for stakes of wood. The term "stake" is defined as a "length of wood or metal pointed at one end for driving into the ground, as for marking a boundary, supporting a plant, etc." Webster's New World Dictionary, 3rd Coll. Ed. 1988, 1304. The merchandise at issue consists of lengths of wood that are pointed at one end and used for supporting trees. Protestant therefore contends that the instant stakes are specifically provided for in heading 4404 and are classifiable accordingly.

An eo nomine designation includes all forms of the article unless there exists a contrary legislative intent. American Rusch Corp. v. United States, 394 F.Supp. 1402, 1405 (1975). In this instance, there is no issue as to whether the articles in question are stakes, but merely one as to whether they are the type of stakes provided for in heading 4404.

The Explanatory Notes (EN) are the official interpretation of the Harmonized System at the international level. While not legally binding, the EN provide in pertinent part that heading 4404 covers:

(2) Split poles, consisting of branches of trees split along the length. These are largely used as supports in agriculture, for fencing or in some cases as ceiling or roofing laths.

(3) Pointed piles, pickets and stakes (including fence posts), consisting of round or split poles, pointed at the ends, whether or not peeled or impregnated with preservative, but not sawn lengthwise.

EN 44.04(3), EN/AS 3, July 1988, 625. The EN make it clear that stakes of heading 4404 consist of round or split poles. The latter are defined at EN 44.04(2), as stems or branches of trees split along the length. It can be inferred from this that round poles consist of stems or branches of trees not split along the length. Thus to rephrase EN 44.04(3), stakes of heading 4404 may be said to consist of branches of trees split along the length. The instant stakes, however, were manufactured by feeding lodge pole pine logs into a machine which removes the bark and some of the wood to produce an article with a uniform diameter. Customs is therefore of the opinion that the drafters of the Harmonized System intended that heading 4404 be confined to roughly hewn stakes. Accordingly, Customs considers the stakes in question to be distinguishable from stakes of heading 4404.

Heading 4421, HTSUSA, provides for other articles of wood. This heading is a residual provision covering all articles of wood manufactured by turning or any other method that are not more specifically provided for elsewhere in the nomenclature. There are no headings which specifically provide for processed stakes; consequently, the instant merchandise is classifiable in heading 4421.

HOLDING:

The merchandise in question is classifiable in subheading 4421.90.9040, HTSUSA, under the provision for other articles of wood: other: other: other.

You are instructed to deny the protest in full. A copy of this decision should be attached to the Form 19 Notice of Action.

Sincerely,


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