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HQ 963876




February 12, 2001

CLA-2 RR:CR:TE 963876 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 4407.10.0015

Port Director
U.S. Customs
196 West Service Road
Champlain, NY 12919

RE: Protest Number 0712-00-100107; classification of angle cut lumber; heading 4407; heading 4418; truss components

Dear Sir:

This is in reply to the Application for Further Review of Protest (AFR) number 0712-00-100107, filed by the law firm of Kirkland & Ellis, on behalf of Abitibi Consolidated, Inc. (“Abitibi”), and Produits Forestiers Petit Paris, Inc. (“Petit Paris”), concerning the classification of merchandise claimed to be angle cut truss components.

Customs uses the term "truss component" and "truss member" interchangeably. The AFR was timely filed on June 15, 2000.

Initially, we note that Kirkland & Ellis filed a Request for Internal Advice (IA), on behalf of Abitibi and Petit Paris, concerning the same issue (classification of merchandise claimed to be angle cut truss components) at the Port of St. Albans on February 24, 2000. Although the IA request covers two different entries of merchandise, the issues and arguments are identical. Accordingly, we are consolidating the two cases and issuing one ruling letter on the classification of the merchandise.

We also note that Kirkland & Ellis withdrew from both cases on October 31, 2000, and the law firm of Arnold and Porter now represents the importers.

FACTS:

Abitibi is the exclusive sales representative of Petit Paris merchandise. Abitibi and Petit Paris produce and Abitibi sells softwood lumber made from spruce, pine and fir (SPF), of varying grades and dimensions. Abitibi and Petit Paris are not and have never been in the business of producing trusses. Prior to 1999, neither Abitibi nor Petit Paris manufactured truss components. However, at the beginning of 1999, Abitibi began to offer angle cut lumber to its customers.

The merchandise in question is 2 x 4 and 2 x 6 SPF dimension lumber with an 8 degree angle cut on one end and in standard lengths, specifically 8’, 10’, 12’, 14’ and 16’. However, the boards were shipped over length (approximately 2"). The 8-degree angle cut is made across the width of the boards. The lumber is machine stress-rated (“MSR”). Machine stress-related lumber is dimension lumber that has been evaluated by mechanical stress-rating equipment which measures the stiffness of the material and sorts it into various modulus of elasticity classes. The importers entered the merchandise under subheading 4418.90.4090, HTSUSA, as other builder’s joinery and carpentry of wood.

After conducting a NAFTA verification of the merchandise, Customs issued Notices of Action (CF 29) advising the importers that the merchandise would be classified as sawn lumber under subheading 4407.10.0015, HTSUSA.

The importer submits that the merchandise is correctly classified under subheading 4418.90.4090, HTSUSA. They further claim that Customs has issued rulings establishing a treatment and that it is legally improper to change this classification treatment and de facto revoke existing rulings without proper notice and comment.

Our office met with counsel for the importers on November 16, 1999 (Kirkland & Ellis) and December 1, 2000 (Arnold & Porter) to discuss the issues in this case.

ISSUE:

Whether dimension lumber with an 8 degree angle cut on one end and in approximately two inches over standard lengths should be classified in heading 4407, “Wood sawn or chipped lengthwise, sliced or peeled,” as sawn lumber, or classified in heading 4418, “Builders’ joinery and carpentry of wood” as truss components.

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). 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 GRI's taken in order.

Chapter 44, HTSUSA, 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 in later headings within the same chapter. Thus, for example, heading 4403, HTSUSA, is a general provision for wood in the rough, whether or not stripped of bark or sapwood or roughly squared, and heading 4421, HTSUSA, is a basket provision for more advanced articles of wood that cannot be classified elsewhere in the chapter.

As heading 4407 resides at the beginning of Chapter 44, HTSUSA, it reflects coverage of a relatively basic category of lumber products in relation to heading 4418, which, residing closer to the end of Chapter 44, HTSUSA, reflects coverage of a relatively more advanced category of products.

Heading 4407, HTSUSA, provides for wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding 6mm.

Additionally, the Explanatory Notes (EN’s) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the nomenclature at the international level. The EN’s are not legally binding. However, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the EN’s when interpreting the HTSUSA.

In this regard, the EN to heading 4407 HTSUSA, state in relevant part:

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

Heading 4418 provides for, among other things, builder’s joinery and carpentry of wood. The EN to heading 4418, HTSUSA, 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. . . .

As stated in the long line of cases cited by counsel, Customs must classify the merchandise in question in its condition as imported. The question confronting Customs is not how the angle-cut boards may be used after importation. The issue is not one of actual use pursuant to the HTSUSA, but rather, whether cutting an angle at one end has changed the identity of the dimension lumber classified in heading 4407 into builders’ carpentry classified in heading 4418. Thus, Customs task in this case is to determine if the 2 x 4 and 2 x 6 SPF dimension lumber in lengths of approximately 8’, 10’, 12’, 14’ and 16’ with an 8 degree angle cut on one end are truss components under heading 4418, in condition as imported.

A truss is defined as: "An assembly that forms a rigid framework to support the roof or other part of a building." A chord is defined as: "The top or bottom member of a truss, to which the web members are attached." A web is defined as: "A supporting member in a truss; one that joints the chords, or top and bottom members, together." Terms of Trade, Random Lengths, Third Edition (1993).

Truss components are designed, measured and cut, that is manufactured, depending on the specific type of truss required for a specific building. Moreover, truss components are manufactured according to specific plans and specifications that take into consideration, among many factors, the pitch of the roof and load-bearing requirements. Different roof pitches and different load-bearing requirements will call for different trusses and, therefore, different truss component specifications.

In the normal course of manufactuing a truss, the first step entails the production of all the truss memebers in the exact dimensions and shape required by the truss design. The Metal Plate Connected Wood Truss Handbook, Wood Truss Council of America, Second Edition, (1997), at G-2, item 2.02, describes manufacturing of trusses as follows:

Trusses shall be manufactured in accordance with the final approved truss design drawings in properly equipped manufacturing facility of a permanent nature. Trusses shall be manufactured by experienced workers, using precision cutting, jigging and pressing equipment meeting requirements of ANSI/TPI 1-1995, Section 4.

Accordingly, if a board being imported is a component of a truss, the importer must be able to establish to the satisfaction of Customs that it was manufactured and, in the condition in which it was imported, was a constituent member ready to be assembled into a truss.

In their submission counsel cites New York Ruling Letter (NY) B88564, dated September 9, 1997, NY B81359, dated February 6, 1997, and NY C82807, dated January 9, 1998, which held that the merchandise described therein was classified in heading 4418, HTSUSA, as truss components, as proof that the subject merchandise should be similarly classified. Counsel also claims that Abitibi modeled its lumber after visiting production facilities of Donohue Forest Products, Inc. (to whom NY C82807 was issued).

We do not agree with counsel that the subject merchandise meets the parameters set forth in the cited rulings or the above definition of a truss or a truss member. The cited rulings clearly state that the components were cut to specific size, in other words, the length, thickness and angles were cut and no further cutting or processing was necessary for assembly into a truss. See also, NY D81970, dated September 30, 1998; NY D80342, dated September 18, 1998; NY C89668, dated August 17, 1998. In addition, in the cited rulings the importer submitted samples of the truss components and drawings of the particular trusses into which they would be assembled. Therefore, unlike the instant merchandise, the merchandise in the above referenced rulings was recognizable in its condition as imported as truss components.

Our findings firmly establish that the imported lumber in question is not recognizable as truss components in its condition as imported. Perhaps the most compelling evidence is a statement by counsel in footnote 6 of the February 24, 2000 submission, stating that “these are unfinished truss components that need to be cut to length, and perhaps ripped to width, for the particular truss
design.” Additionally, by counsel’s own admission, Abitibi and Petit Paris are not, and have never been, in the business of producing trusses, and prior to the entries at issue, neither Abitibi nor Petit Paris manufactured any “truss components.”

Further evidence that the merchandise in question is not recognizable as truss components in its condition as imported was discovered after Customs conducted a NAFTA verification of the merchandise. With regard to one of the entries in question, Abitibi states that it cut each piece of the MSR dimensional lumber at an 8 degree angle, as ordered by XXXXX XXXXXXXXXXX. Similarly, Petit Paris cut each piece of MSR dimensional lumber at an 8-degree angle as ordered by XXXXXX XXXXXX XXXXX, Inc. Purchase orders from both of these companies list “angle cut” lumber without specifying the degree of the cut. Counsel claims that Abitibi had previously advised its customers that Petit Paris could provide 8 degree cuts, so the “angle cut” order meant 2 x 4s with an 8 degree angle cut at one end. Our findings are not consistent with this claim.

Following the NAFTA verification, Customs issued a CF-29 to Abitibi on August 16, 1999, stating:

[T]he lumber was sold to an intermediate buyer, XXXXXXXX XXXXXXXXXXXXX and shipped to their customer XXXX XXXXXXXXXXX, a truss manufacturing company located in XXXXXX XXXXXXXX, MA.

XXXX XXXXXXXXXXX, when contacted by this office, indicated that the 8-degree angle cut lumber is not utilized in trusses manufactured by them without being recut. All lumber in this shipment must be recut with the proper angle for manufacturing a given size truss, in this case for a 5/12 truss the necessary angle would be 22 ½ degrees.

On another entry in question, Customs issued a CF-29 to Petit Paris on August 16, 1999, stating:

[T]he lumber was sold to a lumber wholesaler, XXXXXX XXXXXX XXXXX and shipped to Quaboag Transfer a rail transfer yard in Barrett, MA. The lumber was then shipped to XXXXXX XXXXXX’s customer who was not identified on the entry summary.

The buyer/salesman for XXXXXX XXXXXX, Mr. XX XXXX), when interviewed by telephone, indicated that their customers do not order angle cut lumber. The angle cut indicated on the purchase order was put there so that they would receive a price reduction.

We note counsel’s reference to Heartland By-Products, Inc. v. United States, 74 F. Supp. 2d 1324 (Ct. Int'l Trade 1999), and we are aware of the precedent that an importer has the right to fashion merchandise to obtain the lowest rate of duty or to avoid quota restrictions, provided no deceit is practiced, goods are truly invoiced and freely and honestly exposed to Customs for their examination. Id.

With that in mind, we agree with counsel that trusses can be any shape or size and thus the parts of a truss, the chords and webs, vary in length and the angles of the ends. Moreover, we do not hold issue with the fact that lumber may be significantly processed into merchandise classifiable in heading 4418, HTSUSA, a provision which provides for products of “joinery and carpentry”, resulting in acceptable “tariff engineering.” However, that being said, this is not the case with the subject merchandise.

As stated previously, trusses and truss components are not designed by the lumber mill but manufactured according to the truss manufacturer’s specifications. The Metal Plate Connected Wood Truss Handbook, Wood Truss Council of America, Second Edition, (1997), at G-2, item 2.02, describes manufacturing of truss members as follows:

Truss members shall be accurately cut to length, angle and true to line to assure proper fitting joints within tolerances set forth in ANSI/TPI 1-1995, Section 4.

We have reviewed the Declaration and Supplemental Declaration of XXXX,X. XXXXXXXX, XX, submitted by counsel to establish that dimension lumber cut at an 8-degree angle is recognizable as a truss component. Mr. XXXXXXXX is a professional engineer with 20 years of experience in the manufacture and design of wood trusses.

Mr. XXXXXXXX goes into great detail regarding the different truss designs and the variety of shapes, slopes and angles of the various components. He also attached truss designs created at the request of the importer, after the importation of the merchandise. These designs are deep parallel chord trusses with an 8 degree slope and made with 2 x 4s and 2 x 6s in a flat chord configuration requiring web members in a range of 7 to 16 feet in length, turned sideways to span the width of the top chords, with an 8-degree angle cut on one
end. He states that such web members are completely finished except that some must be trimmed to fit the shallower end of the truss. The same web members are well suited for use in a parallel chord bowstring truss in flat chord configurations, again with only minor trimming of some of the members on the square ends.

Mr. XXXXXXXX concludes by stating that it is the tell-tale angle cut on the end, plus the length and the exceptionally high grade of the lumber which would make it recognizable to him as roof truss web members and clearly distinguishable from square-cut stud grade framing lumber.

We note that when we spoke to Mr. XXXXXXXX about his declarations he also stated that 2 x 4 or 2 x 6 lumber in standard lengths with square cut ends also “could be” truss components if they are destined to go to a truss manufacturer. In other words, a truss could be designed to accommodate such boards. However, Customs does not look at hypothetical situations to classify merchandise; merchandise is classified based on what it is at the time of importation. The fact that Mr. XXXXXXXX was able to design hypothetical trusses, at counsel’s request after the merchandise was imported and its classification challenged by Customs, is not within the spirit of tariff engineering contemplated by Heartland and the cases cited therein. If that were the case, all dimension lumber of heading 4407 could be considered truss members in that an engineer could design a hypothetical truss using any piece of dimension lumber. Clearly, truss members are precise components, which are born from a final approved truss design drawing and not manufactured in the hope that someone can use them.

We also note that the difference between Heartland and the cases cited therein and the instant case is in the fact that the merchandise in the Heartland cases were in intermediate phases of processing in their condition as imported but nevertheless met the terms of a particular tariff provision in that condition, i.e., the plain language of the tariff provision described the imported product. The courts are clear that goods may be imported at various stages of manufacturing or processing even if at an artificially interrupted point, to obtain lower rates of duty.

As further support that the boards in question are not truss components, in condition as imported, we refer to another case cited by counsel, Worthington v. Robbins, 139 U.S. 337 (1891), concerning the classification of white hard enamel in which the court stated:

The article in question was, to all intents and purposes, raw material. If it were to be classed as 'watch materials,' it would follow that any metal which could ultimately be used, and was ultimately used, in the manufacture of a watch, but could be used for other purposes also, would be dutiable as 'watch materials.' In order to be 'watch materials,' the article must in itself bear marks of its special adaptation for use in making watches. The fact that the article in question was used in the manufacture of watches has no relation to the condition of the article as imported, but to what afterwards the importer did with it.

In the instant case, there is nothing about the dimension lumber in its condition as imported which "bears marks of its special adaptation" or makes it a recognizable part of an unassembled roof truss. The merchandise was bought and treated as material lumber, i.e., square cut dimension lumber of standard lengths. The merchandise either requires further processing or the angle will be cut off entirely.

Accordingly, we find that the importer has failed to provide Customs with the information necessary to recognize the boards as members of a truss. The importer’s inability to establish that the boards being imported with angle-cuts were, in fact, components of trusses at the time of importation results in the classification of the boards in heading 4407, HTSUSA, as general sawn lumber.

HOLDING:

The subject angle cut lumber is classified 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 general column one rate of duty is “Free”.

Articles classifiable under subheading 4407.10.0015, HTSUSA, which are products of Canada, are subject to entry requirements based on the U.S.-Canada 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.

The holding set forth above applies only to the specific factual situation and merchandise description as identified in the ruling request. This position is clearly set forth in 19 CFR 177.9(b)(1). This section states that a ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated therein, either directly, by reference, or by implication, is accurate and complete in every material respect.

This ruling is being issued under the assumption that the subject goods, in their condition as imported into the United States, conform to the facts and the description as set forth both in the ruling request and in this ruling. In the event that the facts or merchandise are modified in any way, you should bring this to the attention of Customs and you should resubmit for a new ruling in accordance with 19 CFR 177.2. You should also be aware that the material facts described in the foregoing ruling may be subject to periodic verification by the Customs Service.

Sincerely,

John Durant, Director
Commercial Rulings Division

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