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HQ 962042




August 14, 1998
CLA-2 RR:CR:TE 962042 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 4407.10.0015

Area Director
U.S. Customs Service
P.O. Box 610
112 West Stutsman
Pembina, ND 58271

RE: Decision on Application for Further Review of Protest No. 340198100012; drilled softwood studs

Dear Sir:

This is a decision on application for further review of a protest timely filed by H.A. & J.L. Wood, Inc., on behalf of American Bayridge Corporation, on July 17, 1998, against your decision regarding the classification of predrilled studs in heading 4407, Harmonized Tariff Schedule of the United States (HTSUS), without the 60 day delayed effective date due the importer who was the person involved in HQ 961555, pursuant to 19 U.S.C. 1625(c). The entry at issue
(No. 1245929-1) was liquidated on July 17, 1998. .

FACTS:

The merchandise that is the subject of the present protest consists of softwood lumber studs measuring 2"x 6" and cut to lengths of 92 5/8", invoiced as "predrilled studs",with a one inch diameter hole drilled in the center of each board near each end which may serve as electrical conduits for wires and cables (referenced on the invoice as "C/W E.C."). We note that although the subject predrilled studs are cut slightly less than eight foot lengths and are not invoiced as drilled for possible conduits for pipes, Protestant has signed a July 22, 1998, letter (copy attached), whereby "the importer agrees to be bound by the terms of these Stipulated Procedures; Dismissal Court No. 98-06-02426", which stipulated that the subject merchandise is "substantially identical" to the merchandise at issue in HQ 961555.

ISSUE:

1. What is the proper classification for the merchandise at issue?

2. Whether Customs is required to give the Protestant, as a third party, the 60 day delay from the July 1, 1998, date of publication of the revocation of New York Ruling Letter (NY) B81564 involving substantially identical merchandise, in the Customs Bulletin before classifying the drilled softwood studs here in issue in heading 4407, HTSUS?

LAW AND ANALYSIS:

Classification

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRIs.

Chapter 44, HTSUS, provides for, among other things, wood and articles of wood. This chapter is structured so that less processed wood appears at the beginning of the chapter followed by more advanced wood subjected to more significant processing in later headings within the same chapter. Thus, for example, heading 4403, HTSUS (the third heading), is a general provision for wood in the rough, whether or not stripped of bark or sapwood or roughly squared, and heading 4421, HTSUS (final heading), is a basket provision for more advanced articles of wood that cannot be classified elsewhere in the chapter.

Thus, with this understanding of the general sequential structure of chapter 44, HTSUS, in mind, heading 4407, HTSUS, which provides for wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding 6mm, is representative of a relatively basic category of lumber products. The Explanatory Notes of the Harmonized Commodity Description and Coding System (EN) to heading 4407, HTSUS, consulted for guidance, state in pertinent part:

The products of this heading may be planed (whether or not the angle formed by two adjacent sides is slightly rounded during the process), sanded, or end-jointed, e.g. finger- jointed (see the General Explanatory Notes to this
Chapter).

There is nothing in the tariff description of heading 4407, HTSUS, which absolutely limits the types of processes that can be performed on products classified in that heading; the terms of the heading are not written as words of absolute limitation and should not be read as such. It is Customs position that the process of drilling two small holes in a stud is insignificant and neither changes the essential resemblance of the article as lumber without such drilling, to which there is no dispute that the undrilled lumber would be properly classified in heading 4407, HTSUS, nor renders the product materially more advanced such as the articles properly understood to be classified in heading 4418, HTSUS.

Heading 4418, HTSUS, however, which provides for among other things, builder's joinery and carpentry of wood, is representative of a more advanced category of lumber products. The EN to heading 4418, HTSUS, state in pertinent part:

This heading applies to woodwork, including that of wood marquetry or inlaid wood, 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 other similar joints for assembly), whether or not with their metal fittings such as hinges, locks, etc.

The term "joinery" applies more particularly to builders' fittings (such as doors, windows, shutters, stairs, door or window frames), whereas the term "carpentry" refers to woodwork (such as beams, rafters, and roof struts) used for structural purposes or in scaffoldings, arch supports, etc., and includes assembled shuttering for concrete constructional work.* * *

In the absence of contrary legislative intent, Customs is required to construe tariff terms in accordance with their common and commercial meaning. Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 789, cert. denied, 488 U.S. 943 (Fed. Cir. 1988); E.M. Chemicals v. United States, 920 F.2d 910, 913 (Fed. Cir. 1990); Verosol USA, Inc. v. United States, 941 F.Supp 139, 142 (CIT 1996). "Carpentry" is defined as:
the art of shaping and assembling structural woodwork. Webster's Ninth New Collegiate Dictionary, 1991
work which is performed by a craftsman in cutting, framing, and joining pieces of timber in the construction of ships, houses and other structures of a similar character.
Architectural and Building
Trades Dictionary, 1974

"Joinery" is defined as:
a term used in Europe to denote the higher grades of lumber suitable for such uses as cabinetry, millwork or interior trim. Random Lengths Terms of the Trade, 1993, at 149
the art of framing the finishing work, making permanent wooden fittings and covering rough lumber, as in houses and vessels; joiner's work: distinguished from carpentry. Funk & Wagnalls, 1928, at 1323
the art of preparing and fixing the wood finishings of buildings. Woodwork prepared by the joiner; it does not usually serve any structural purpose. The Complete Dictionary of Wood, 1979, at 273

Consistent with the EN to 4418, HTSUS, the above lexicographic sources illustrate that joinery and carpentry are materially more advanced products which require more than the simple drilling of studs. As seen in the terms of heading 4418, HTSUS, the common and trade specific definitions show that joinery and carpentry are joined together or designated pieces for assembly rather than mere boards with holes possibly serving the purpose of conduits for electrical wiring or cables. Products within the proper meaning of carpentry or joinery reflect processing that the foregoing lexicographic sources characterize as an "art" or "craft" while the minor drilling operation at issue here does not. The EN to heading 4418, HTSUS, contemplate a specific meaning for "structural purposes;" the Notes speak of structural purpose in the sense that products are already assembled goods or unassembled pieces recognizable as such because they have been subjected to materially more advanced processing, e.g., tenons, mortises and dovetails.

Any interpretation calling for drilled studs to be understood as woodwork used for structural purposes in the form of assembled goods or as recognizable pieces is in error. A drilled stud cannot be viewed as a recognizable unassembled piece of an assembled good, e.g., a "wall frame," on the basis that the studs are connected to other pieces of the frame. Application of this generalization in logic would require classification, at a minimum, of all dimension lumber as builder's joinery and carpentry since dimension or framing lumber is designed for, and the vast bulk is used for, construction applications. It is Customs position that this understanding does not accord with the structural and proper meaning of the tariff. Likewise, assertions made that drilled studs are joinery because of an "end joint" or "butt joint" is untenable. An end or butt joint is nothing more than joining together the square ends of two pieces of wood and as such is not a joint for assembly that can qualify as recognizable unassembled pieces.

As was set forth in the legal analysis in Headquarters Ruling Letter (HQ) 961555, published in the Customs Bulletin, Vol. 32, No. 26, dated July 1, 1998, which revoked New York Ruling Letter (NY) B81564, on substantially identical drilled softwood studs used in framing houses:

First, this understanding of the structural purpose of these articles exists whether or not the articles are drilled and, as stated above, notwithstanding the undrilled articles are generally understood to be used for the structural purpose of framing houses, they fall under heading 4407, HTSUS. Second, a close reading of the EN to heading 4418, HTSUS, suggests that the first and second paragraphs are to be read in relation to one another. In that respect, the language regarding the term "carpentry" appearing in [the] EN to heading 4418, should be read in the context of the paragraph immediately preceding it so that heading 4418 applies only to woodwork used for structural purposes which is in the form of assembled goods or as recognizable unassembled pieces. In other words, the article must be in the form of an assembled good or exhibit some feature (e.g., prepared with tenons, mortises, dovetails or other similar joints for assembly) which qualifies it as a recognizable unassembled piece. It follows that, because the subject drilled softwood studs containing a hole which may act as a conduit for wires or pipes are not in the form of assembled goods and do not qualify as a recognizable unassembled piece, the subject articles do not serve a structural purpose within the meaning of the EN to heading 4418, HTSUS, as properly understood.

Protestant has not put forth any persuasive argument or evidence to distinguish the foregoing analysis. There is no question that softwood studs without such drilling are properly classifiable in heading 4407, HTSUS. The drilling at issue is insignificant because it does not change the essential resemblance of the merchandise to softwood studs without such holes, and does not render the article a materially more advanced article within later provisions of the same chapter, such as heading 4418, HTSUS, "Builder's joinery and carpentry of wood." Heading 4421, HTSUS, which provides in a basket provision for articles of wood at the most advanced condition, is also inapplicable.

Finally, we note that it was congressional intent that the present HTSUS reflect the tariff treatment under the former Tariff Schedules of the United States (TSUS). Under the latter, all softwood lumber, whether or not drilled, treated or worked, was imported into the United States duty free. Classification of drilled studs under 4418, HTSUS, would ignore the administrative and legislative intent that conversion to the present HTSUS was to be revenue neutral. The TSUS included drilled studs in category 202, which was subject to a general duty rate of "0". Classification of drilled studs in heading 4418, HTSUS, would result in a duty being imposed on those studs from column one general countries, which appears contrary to congressional intent, simply due to the drilling. While the headnote to TSUS Schedule 2, Part 1, Subpart B, indicates that the specific reference to "drilled" in the TSUS was understood to refer to lumber drilled with holes "for nails, screws, bolts," and the drilled holes at issue may be for electrical conduits for wire and cables, there is no evidence Congress intended a significant tariff increase due to either of the drilling applications, which are at most minor changes.

In conclusion, the subject studs are insignificantly processed by the drilling and do not satisfy the term "carpentry" or "joinery" as envisioned by the terms of heading 4418, HTSUS, nor are they more advanced articles of wood as provided for in heading 4421, HTSUS. Rather, they are classified in heading 4407, HTSUS.

Delayed Effective Date

Section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), which requires publication of a notice by Customs, followed by a period of public comment in the event of a modification or revocation of a prior Customs interpretive ruling or decision, relates only to the ruling recipient and not to the

Protestant. Section 177.9(c) of the Customs Regulations (19 CFR 177.9(c)) relates to reliance on ruling letters by others and specifically states that "no other person should rely on the ruling letter or assume that the principle of that ruling will be applied in connection with any transactions other than the one described in the letter."

Additionally, on October 27, 1997, the public was advised that there should be no reliance by third parties on NY B81564 for prospective or future importations of drilled softwood lumber. This was reiterated in the April 15, 1998, Customs Bulletin notice which was issued pursuant to 19 U.S.C. 1625(c)(1). The 60 day delay period is not applicable to the Protestant. It is only the party who requested the original ruling that is subject to a modification or revocation who is entitled to the 60 day delayed effective date set forth in section 625(c)(1). To hold otherwise would elevate every Customs ruling letter to the level of a practice (which these rulings are not) and render meaningless the requirements for creating and changing a practice under 19 U.S.C. 1315(d) as well as be in potential conflict with 19 U.S.C. 1516(b). The 60 day delay period for rulings or decisions which have the effect of modifying treatment previously accorded by Customs to substantially identical transactions (19 U.S.C. 1625(c)(2))was not at issue in finalizing HQ 961555, is not relevant here, and Protestant did not present any persuasive evidence or arguments with respect to the applicability of this subsection in its protest.

HOLDING:

The subject merchandise, was correctly classified in subheading 4407.10.00, HTSUS, and statistically in subheading 4407.10.0015, HTSUSA, which provides for wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding 6mm: coniferous: other: not treated: mixtures of spruce, pine and fir ("S-P-F"). The applicable rate of general duty is "Free".

The protest should be denied in full and a copy of this decision should be appended to the CF 19, Notice of Action, to satisfy the notice requirement of section 174.30(a) Customs Regulations.

In accordance with Section 3(A)(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be delivered by your office to the Protestant no later than Friday, August 14, 1998.

Sincerely,

John Durant, Director
Commercial Rulings Division

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