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NY E86123




October 15, 1999

CLA-2-44:RR:NC:2:230 E86123

CATEGORY: CLASSIFICATION

TARIFF NO.: 4407.10.0076; 4407.10.0077; 4409.10.9040; 4421.90.7040

Mr. Gerry O’Connor
Williamsburg Woods & Garden Inc.
13425 County Road 18
R.R.#2
Williamsburg, Ontario
K0C 2H0 Canada

RE: The tariff classification of cedar fence posts, rails, pickets, fence kits and roughly squared wood from Canada

Dear Mr. O’Connor:

In your letter dated July 16, 1999 you submitted additional information regarding several wood products for which you requested a tariff classification ruling.

The products in question are referred to as follows: (1)fence posts, (2)backer rails, (3)pickets, (4)fence kits and (5)roughly squared wood. All products are made of eastern white cedar. Representative samples of each were submitted.

(1) FENCE POSTS - The fence posts in question will be imported in sizes of 4” x 4” and 5” x 5” and in lengths of 5,6,7,8,9,10, and 12 feet. They consist of solid wood squares with one end either beveled or doweled. A foot long end section of each type was submitted as a sample. The 5” x 5” post is stated to be beveled, that is, one end has one inch of the four edges cut off at about a 45 degree angle. The 4” x 4” post is stated to be doweled, that is, one inch of the end is rounded off at about a 45 degree angle. Both submitted samples are rough sawn, but the posts may also be imported with four dressed or surfaced sides.

Classification of goods under the Harmonized Tariff Schedule is governed by the General Rules of Interpretation (GRI’s). Additional U.S. Rule of Interpretation 1(a) states as follows:
a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use; The applicability of certain headings (and subheadings) of chapter 44, HTSUS, depends on the principal use in the United States at, or immediately prior to, the date of importation of goods of the class or kind to which the imported merchandise belongs. The 4” x 4” and 5” x 5” posts with a beveled or doweled end and in lengths of 5, 6, 7 and 8 feet are recognizable as fence posts and belong to that class or kind of posts which are principally used as fence posts in the United States.

The applicable subheading for these posts will be 4421.90.7040, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for pickets, palings, posts and rails, the foregoing which are sawn. The general rate of duty will be Free.

We could not find any information to substantiate a conclusion that wood posts in sizes other than those we have specified above are principally used as fence posts in the United States. Thus, we find that the applicable subheading for the wood posts in question in sizes other than 4” x 4” and 5” x 5” and lengths of 5, 6, 7 and 8 feet, will be 4407.10.0076, HTSUSA, if rough sawn, or 4407.10.0077, HTSUSA, if dressed or surfaced. These subheadings provide for wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding 6 mm; coniferous; not finger-jointed; not treated; other cedar. The general rate of duty will be Free.

(2) BACKER RAILS - The backer rails consist of 2” x 3” and 2” x 4” solid wood boards with one side molded. Both size rails may have square ends or doweled ends. A sample section of each type was submitted. The sample of the 2” x 3” board has one curved or rounded width surface and square unworked ends. The sample of the 2” x 4” board has one curved or rounded width surface and a doweled end, that is, the end is shaped into a half round dowel about 1-5/8 inches in diameter for a length of 2-1/2 which then tapers out to the full width of the board. These rails are used as backer rails to which pickets are nailed to make fence sections. The rails with unworked ends may also be used as handrails for a deck. The rails will be imported in specific sizes of 2” x 3” x 8’, 2” x 3” x 10’, 2” x 4” x 8’ and

The molded rails with doweled ends are dedicated for use as backer rails for fences. The applicable subheading for these backer rails will be 4421.90.7040, HTSUSA, which provides for other articles of wood: pickets, palings, posts and rails, the foregoing which are sawn. The general rate of duty will be Free.

You have indicated that the molded (rounded face) rails with unworked square cut ends may be used as fence backer rails or as handrails for a deck. These boards are specifically provided for under subheading 4409.10.9040, HTSUSA, which provides for other coniferous wood continuously shaped (tongued, grooved, rebated, chamfered, V-jointed, beaded, molded, rounded or the like) along any of its edges or faces, whether or not planed, sanded or finger-jointed. The general rate of duty will be Free.

(3) PICKETS - The subject pickets consist of solid wood boards which will be imported in specific sizes of 1” x 4” and 1” x 6” and lengths of 4, 5, 6, 8 feet. They may be either tongued and grooved (T&G) along the edges or dog-eared on one end. The T&G boards have square unworked ends. In the case of the dog-eared boards, you have not submitted any drawings or other information to show the size of the corner cuts that produce the dog-eared style pickets. However, a sample of the 1” x 6” dog-eared boards and a sample of the 1” x 4” T&G boards were submitted.

According to the sample of the 1” x 6” dog-eared boards, small pieces of wood in the shape of isosceles right angle triangle, with sides measuring approximately 11/16”, have been cut off the corners of one end of the board. The edges of the sample are unworked, i.e. square cut.

We cannot issue a ruling on the 1” x 4” dog-eared boards since you have not submitted any samples or drawings showing the exact sizes of the corner cuts in making the dog-eared style. You may want to resubmit your request for this product with samples, drawings, and measurements of the dog-eared cuts.

The 1” x 6” boards with corners on one end cut as represented by the submitted sample and described above do not represent the commercially recognized style for fence pickets known as “dog-eared”. The corners have minimal cuts which do not clearly establish the dog-eared style and do not produce the aesthetic effect that has consumers’ appeal. As such, it is our opinion that these boards are open to multiple uses in the United States.

Classification of goods under the Harmonized Tariff Schedule is governed by the General Rules of Interpretation (GRI’s). GRI 1 provides that classification is first in accordance with the terms of the headings of the tariff and any relative section or chapter notes. Thus, the boards in question, as represented by the submitted sample, belong to the class or kind of boards covered by the provision for sawn wood of heading 4407, HTSUS.

The applicable subheadings for the 1” x 6” boards in question, of all lengths, will be 4407.10.0076 (if rough) or 4407.10.0077 (if dressed or surfaced), HTSUSA, which provide for wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding 6 mm; coniferous; not finger-jointed; not treated; other cedar. The general rate of duty will be Free.

The subject boards with tongued and grooved edges and unworked square cut ends, in all sizes, are not recognizable as fence parts, but are more specifically provided for as continuously shaped wood of heading 4409, HTSUS. The applicable subheading for these boards will be 4409.10.9040, HTSUSA, which provides for other coniferous wood continuously shaped (tongued, grooved, rebated, chamfered, V-jointed, beaded, molded, rounded or the like) along any of its edges or faces, whether or not planed, sanded or finger-jointed. The general rate of duty will be Free.

(4) FENCE KITS - The fence kits are unassembled fence components and are stated to consist of enough pickets, backer rails and posts to make a complete section of fencing. A typical section would include 20 to 30 pickets, 2 posts and 2 backer rails.

GRI 1 provides that classification is first in accordance with the terms of the headings of the tariff and any relative section or chapter notes. Next, provided that the headings or notes do not otherwise require, classification may be determined according to the subsequent GRI’s.

GRI 2(a) states that any reference in a heading to an article includes that article whether or not finished or unfinished, provided that the unfinished article has the essential character of the finished article, and also includes that article whether assembled or unassembled.

The terms of subheading 4421.90.70, HTSUSA, are as follows:

Pickets, palings, posts and rails, the foregoing which are sawn; assembled fence sections.

Thus, we see that the applicable subheading for wood fencing panels specifies that they be assembled fence sections. If they are not assembled in condition as imported, all the components (pickets, palings, posts, and rails) are classified separately.

Since the fence kits you intend to import will be unassembled, they may not be classified as if they were assembled. The terms of the heading preclude reliance on GRI 2(a) for classification of the unassembled fence kits. Accordingly, each unassembled component is classifiable separately depending on its condition as imported. (See discussion for items(1), (2) and (3) above.)

(5) ROUGHLY SQUARED WOOD - In your correspondence with this office, you refer to the subject product as “wood roughly squared” which is produced at your mill by coarse sawing with a circular saw. The wood is processed from debarked logs. Timbers of various sizes such as 4” x 4” and 2” x 8” will be produced. The sample submitted is a 4” x 4” rough sawn piece of wood with no bark or wane present. A photograph of the product in question shows the preponderance of timbers having no bark or wane.

You suggested that this product be classified in heading 4403, HTSUS, as roughly squared wood. Heading 4403, HTSUS, provides for:

Wood in the rough, whether or not stripped of bark or sapwood, or roughly squared.

The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) provide a commentary on the scope of each heading. The ENs, although not dispositive or legally binding, may be consulted when determining the classification of a product under particular heading (T.D. 89-90, 54 Fed. Reg. 35127, August 23, 1989).

The EN to heading 4403, HTSUS, state in pertinent part:

This heading includes timber in the natural state as felled, usually with the branches lopped off, and such timber stripped of its outer and inner bark or from which merely the rough protuberances have been removed. It also includes wood from which the waste outer layers, consisting of the most recent growths (sapwood), have been removed for economy in transport or to prevent decay.

This heading also includes roughly squared wood which consists of trunks or sections of trunks of trees, the round surfaces of which have been reduced to flat surfaces by means of axe or adze, or by coarse sawing, to form wood roughly rectangular (including square) cross-section; roughly squared wood is characterized by the presence of rough areas or bark traces.

The roughly squared wood produced by your mill is processed more than the terms of heading 4403 allow, as described in the EN. The wood, as shown by the sample and photographs, is not characterized by rough areas, wane, or bark traces. It does not reflect the condition of the original tree trunk. Rather, it has the character of sawn wood described in heading 4407, HTSUS.

The applicable subheading for the roughly squared wood represented by the sample and the information submitted by you will be 4407.10.0076, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed; of a thickness exceeding 6 mm; coniferous; not finger-jointed; not treated; other cedar; rough. The general rate of duty will be Free.

Articles classifiable under subheadings 4407.10.0076, 4407.10.0077 and 4409.10.9040, HTSUSA, which are the products of Canada are subject to entry requirements based on the U.S./Canadian Softwood Lumber Agreement of 1996. All invoices of such articles must be annotated with the Canadian province of manufacture. If manufactured in Ontario, Quebec, British Columbia or Alberta, a permit is required.

In the event that the subject goods, when imported into the United States, do not meet the description and the facts set forth in this ruling, the subject ruling letter will not be applicable to those goods. As such, in the event that the merchandise or the facts are modified in any way, you should resubmit for a ruling request to cover the new situation. You should also be aware that the material facts described in the foregoing ruling may be subject to periodic verification by the Customs Service.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Paul Garretto at 212-637-7009.

Sincerely,

Robert B. Swierupski

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