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HQ 957673

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July 14, 1995
CLA-2 CO:R:C:T 957673 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 4421.90.9540

District Director
P.O. Box 610- 112 West Stutsman
Pembina, ND 58271

RE: Application for further review of Protest No. 3401-94-100121; subheadings 4421.90.9540 and 9905.44.15; duty-free treatment for certain articles under subheading 9905.44.15 denied; edge-glued lumber; TSUS definition of lumber; HRL 087616

Dear Sir:

This is a decision on application for further review of a protest timely filed by Norman G. Jensen, Inc., on behalf of West Fraser Mills Limited, on November 22, 1994.

FACTS:

The merchandise at issue consists of a "round", which is an edge-glued board made of individual solid pieces of wood which have been edge-glued together. A sample of one round was submitted for our review and it measures approximately 3/4 of an inch thick and 12 inches in diameter. The top and bottom edges (along the circumference) are rounded or shaped. A letter from West Fraser Mills LTD. states that the boards will be used to make tables or plant stands by attaching leg kits.

The merchandise was entered by the protestant under subheading 4421.90.9540, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for "[o]ther articles of wood: [o]ther: [o]ther: [o]ther." In addition, the protestant claimed subheading 9905.44.15, HTSUSA, applied to this merchandise. This subheading extends duty free treatment to certain wood products, provided they qualify as goods originating in the territory of Canada pursuant to the North American Free Trade Agreement (NAFTA) and it states the following:

Goods of Canada, under the terms of general note 12 of the tariff schedule:

Laminated hemlock post blanks, finger-jointed lumber, and edge-glued lumber (provided for in subheading 4421.90.95)

The merchandise was classified in subheading 4421.90.9540, HTSUSA. However, your office determined that subheading 9905.44.15, HTSUSA, did not apply to the subject merchandise and the duty free allowance was denied.

ISSUE:

Whether or not the duty free provision under subheading 9905.44.15, HTSUSA, applies to the instant merchandise?

LAW AND ANALYSIS:

The classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings 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's may be applied, taken in order.

There is no dispute regarding classification of the subject articles in subheading 4421.90.9540, HTSUSA. Therefore a discussion of this classification is not warranted.

Duty Free Treatment under subheading 9905.44.15

Subheading 9905.44.15, Subchapter V, Chapter 99, HTSUSA, extends duty free treatment to certain wood products, provided they qualify as goods originating in the territory of Canada pursuant to the terms of the NAFTA. Subheading 9905.44.15, HTSUSA, states the following:

Goods of Canada, under the terms of general note 12 of the tariff schedule: .
Laminated hemlock post blanks, finger-jointed lumber, and edge-glued lumber (provided for in subheading 4421.90.95)

[Subheading 4421.90.95 describes "[o]ther articles of wood:[o]ther: [o]ther."]

The language of subheading 9905.44.15, HTSUSA, does not mimic the language of subheading 4421.90.95, HTSUSA, to which it refers. Therefore, it is apparent from the language of subheading 9905.44.15, HTSUSA, that not all articles of wood classifiable under subheading 4421.90.95, HTSUSA, which are products of Canada, are meant to be included within its scope. Based on the language alone, the articles included would have to be "lumber" products.

However, the HTSUSA does not define or even employ the term "lumber" at the international level. The term lumber" is only found at the eight-digit U.S. level and in Chapter 99. As a general matter, the term refers to: timber or logs that have been prepared for market; the product of a saw and planing mill not further manufactured; a manufactured product derived from a log in a sawmill. See Webster's Third New International Dictionary, 1986, 1345; Wood Handbook: Wood as an Engineering Material, U.S. Dept. Ag., 1987, G-6; McBarron, Dana's Lumber Dictionary and Handbook, 1986, 31. In addition, in the previous tariff, the Tariff Schedules of the United States (TSUS), lumber was defined as part of the legal headnotes in Subpart B of Schedule 2, which provided for, inter alia, wood and wood products. Subpart B headnote 2 provided as follows:

2. For the purpose of this part the following terms have the meanings hereby assigned to them:

(a) Lumber: 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

(i ii) worked lumber is lumber which has been matched (provided with a tongued- and-grooved joint at the edges or ends), shiplapped (provided with a rabbeted 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.

Edge-glued or end-glued wood over 6 feet in length and not over 15 inches in width shall be classified as lumber if such wood as a solid piece without glue joints would be deemed to be lumber as defined above.

The conference report to the 1988 Omnibus Trade Bill, states that "on a case-by-case basis prior decisions should be considered instructive in interpreting the HTSUSA, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTSUSA." H. Rep. No. 100-576, 100th Cong., 2D Sess. 548, 550 (1988). While the issue we are dealing with here involves a definition of terminology and not a prior decision involving the TSUS, we believe the TSUS definition of lumber should be considered "instructive" as the subject nomenclature in the TSUS and HTSUSA has remained unchanged and the HTSUSA provides no dissimilar interpretation of the term "lumber".

Within the above definition of lumber, there can be a variety of products. The Summaries of Trade and Tariff Information (1967) state, for example, "such articles as siding and flooring are generally considered to be types of lumber." The merchandise under protest, however, would not be considered lumber. The round board with worked edges is processed beyond the point of being worked lumber. It is more than just shaped at the edges or on the faces. The whole board is shaped. Therefore, it is more than the "edge-glued lumber" provided for in subheading 9905.44.15, HTSUSA, and it is not entitled to duty free treatment pursuant to subheading 9905.44.15.

Subdivision (b) of General Note 12, HTSUSA, sets forth the rules of origin for determining whether an imported good is an originating good. It provides, in pertinent part, the following:

For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods origin ating in the territory of a NAFTA party" only if--

(I) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or

(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that-

(A) except as provided in subdivision (f) of this note, each of the non- originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein....

(iii) they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials;

Since the subject articles are made from Canadian wood, they are"wholly obtained or produced in the territory of Canada and/or United States " and are eligible for a reduced rate of duty under NAFTA.

HOLDING:

The subject boards are not entitled to a duty free allowance under subheading 9905.44.15, HTSUSA. However, as goods originating in the territory of Canada, pursuant to General Note 12, HTSUSA, they are subject to a 2% ad valorem rate of duty.

The protest should be denied in full and a copy of this ruling should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in the ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial rulings Division

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