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HQ 964446




January 15, 2001

CLA-2 RR:CR:TE 964446 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 4407.10.0068

Mr. Kevin R. Redl
Secretary – Treasurer
Anglo-American Cedar Products Ltd.
7160 Beatty Street
Mission, British Columbia
Canada V2V 4M6

RE: Reconsideration of HQ 082694; Western Red Cedar “short boards”; Subheadings 4407.10.0068 and 4418.50.0010; General Rule of Interpretation 2 (a); Unfinished shakes and shingles.

Dear Mr. Redl:

The purpose of this correspondence is to advise you that the United States Customs Service has reconsidered Headquarters Ruling Letter 082694 issued to Anglo-American Cedar Products Ltd. (Anglo-American) on April 11, 1989. The article in issue in HQ 082694 was Western Red Cedar “short boards.”

The Customs Service classified Western Red Cedar “short boards” in HQ 082694 in subheading 4418.50.0040

The statistical suffix has changed since 1989. HTSUS subheading 4418.50.0040 as it appeared in 1989 is currently 4418.50.0010. of the Harmonized Tariff Schedule of the United States (HTSUS). It is the conclusion of the Customs Service, subsequent to a review of HQ 082694, that the classification of Western Red Cedar “short boards” in subheading 4418.50.0040 was incorrect. The correct subheading is 4407.10.0068, HTSUS.

Pursuant to section 625 (c), Tariff Act of 1930, as amended,19 U.S.C. 1625 (c), notice of the proposed revocation of HQ 082694 was published on November 15, 2000, in the Customs Bulletin, Volume 34, Number 46. During the notice and comment period, Customs received three comments. The initial comment addressed countervailing duty issues involving Canadian lumber imports, but was non-responsive to the issue of Customs proposed classification. The second comment disagreed with Customs proposed classification, but did not provide support for the position asserted. The principle focus of the second comment was perceived problems with the United States – Canada Softwood Lumber Agreement. The third comment received supported the position of the Customs Service and offered legal analysis.

The Customs Service, subsequent to reviewing the comments and pursuant to the following analysis, is revoking HQ 082694.

FACTS

The articles in issue, identified as Western Red Cedar “short boards”, were described in HQ 082694 as “boards...5/8 to 1-1/4 inches thick, 18 inches or 24 inches in length, and in random widths.”

ISSUE

Are the articles in issue, identified as Western Red Cedar “short boards”, unfinished shakes or shingles pursuant to General Rule of Interpretation 2 (a) ?

LAW AND ANALYSIS

The classification of imported merchandise pursuant to the Harmonized Tariff Schedule of the United States is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” GRI 1 further provides that merchandise which can not be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation in their sequential order.

The principal HTSUS subheadings considered by the Customs Service in rendering this reconsideration were: (1) 4407.10.0068; and (2) 4418.50.0010. Subheading 4407.10.0068 provides:

Wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding 6mm:

4407.10.00 Coniferous

4407.10.0068 Other:
Not treated:
Other:
Western red cedar:
Rough
The term “rough” is defined in Statistical Note 1 to Chapter 44 HTSUS to include “wood that has been edged, resawn, crosscut or trimmed to smaller sizes.” The Note continues that the term “rough” does not include wood that has been dressed or surfaced by planing on one or more edges or faces or has been edge-glued or end-glued.”.

Subheading 4418.50.0010 provides:

Builders’ joinery and carpentry of wood, including cellular wood panels and assembled parquet panels; shingles and shakes:

Shingles and shakes

4418.50.0010 Shingles:
Of western red cedar.

It is the conclusion of the Customs Service that the Western Red Cedar “short boards” in issue are properly classified pursuant to GRI 1. The “short boards” literally satisfy the dictates of heading 4407 because they are “[w]ood sawn or chipped lengthwise of a thickness exceeding 6 mm.”

Heading 4407 was drafted to be a broad provision for the classification of material. The Explanatory Notes (EN) of the Harmonized Commodity Description and Coding System lend support to this proposition. The Explanatory Notes represent the official interpretation of the HTSUS at the international level. Although the EN’s are not law in the United States and the Customs Service is not, therefore, legally obligated to follow them, they are valued as an interpretative aid. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

The breadth of heading 4407 is evidenced from a reading of EN 44.07. The Explanatory Notes to Chapter 44 of the HTSUS provide that heading 4407 encompasses, “with few exceptionsall wood and timber, of any length but of a thickness exceeding 6mm, sawn or chipped along the general direction of the grain or cut by slicing or peeling.” The EN further states that “[s]uch wood and timber includes sawn beams, planks, flitches, boards, laths, etc.” (Emphasis added.) Explanatory Note 44.07.

General Rule of Interpretation 2 (a) provides that any reference in a HTSUS heading to an article “shall be taken to include a reference to that article incomplete or unfinished.” GRI 2 (a) requires, however, that the incomplete or unfinished article have the “essential character” of the complete or finished article.

The General Rules of Interpretation do not define the phrase “essential character”, however, its meaning may be understood from an examination of the Explanatory Notes to GRI 2(a). The EN’s to GRI 2 (a) draw a distinction between a “blank” which possesses the essential character of an article and a “semi-manufacture[d]” item that does not have the essential character of an article.

A “blank,” as defined in the EN, is an article “not ready for direct use, having the approximate shape or outline of the finished article or part.” The EN continues stating that a “blank” is an article “which can only be used, other than in exceptional cases, for completion into the finished article or part.” A plastic bottle preform is offered in the EN as an example of a blank. Bottle preforms of plastic are “intermediate products having tubular shape, with one closed end and one open end threaded to secure a screw type closure, the portion below the threaded end being intended to be expanded to a desired size and shape.”

“Semi-manufactures” are items that do not yet have the essential shape or character of the finished articles. Examples of semi-manufactures set forth in the EN’s are: “bars, discs, tubes, etc.” Semi-manufactures are specifically not regarded as “blanks.”

A review of the description of the Western Red Cedar boards or “short boards,” in the condition in which they will be imported, reveals semi-manufactured items rather than blanks. The boards do not have the essential character of shakes or shingles. The adjective “short,” it should be noted, is an industry term that simply refers to lengths of sawn timber, generally less than six feet long.

A shake, as described by EN 44.18, is “wood split by hand or machine from a bolt or block. Its face reveals the natural texture of the wood resulting from the splitting process. Shakes are sometimes sawn lengthwise through their thickness to obtain two shakes, each then having a split face and a sawn back.” The Complete Dictionary of Wood defines “shakes” as “[h]and riven ½-in. shingles, longer than normal, and often staggered for special effect.” Corkhill, The Complete Dictionary of Wood, 501 (1979). Reference to the World Wide Web site of Anglo-American suggests that the principal distinction between a shake and a shingle is that shakes have a “natural split face, and a sawn backside” while shingles are “sawn on both sides and produce a smooth finished look.” Anglo-American Cedar Products Ltd., www.angloamerican.com/products.htm, visited Sept. 14, 2000.

A shingle, as defined in the EN’s to heading 4418, is “wood sawn lengthwise which is generally thicker than 5mm at one end (the butt) but thinner than 5mm at the other end (the tip). It may have its edges resawn to be parallel; its butt may be resawn to be at right angles to its edges or to form a curve or other shape. One of its faces may be sanded from the butt to the tip or grooved along its length.” See also, Corkhill, The Complete Dictionary of Wood, 504 (1979).

The boards that were the subject of HQ 082694 issued to Anglo-American in 1989 have not been sufficiently processed beyond the stage of material lumber. They are rectangular lumber boards sawn to size. They are not tapered to any degree, nor are they in a condition in which they may be deemed dedicated to use only as shakes or shingles. They do not have the approximate shape or outline of a shake or shingle and are more closely analogous to the examples of semi-manufactured items in the EN’s than to the plastic bottle preform identified as the example of a blank. The “short boards” in issue are plain sawn wood suitable for multiple uses and not recognizable as one particular article of commerce. See generally, Ludvig Svensson (US) v. United States, 62 F. Supp. 2d 1171 (C.I.T.1999); Doherty-Barrow of Texas, Inc. v. United States, 3 C.I.T. 228 (1982); and American Import Co. v. United States, 26 C.C.P.A. 72 (1938).

The Customs Service is apprised of HQ Ruling Letter 083795 issued on May 26, 1989. HQ 083795 classified Red Cedar “short boards” in HTSUS subheading 4418.50.0040 as unfinished shakes and shingles. It is specifically noted that the articles in issue in that ruling letter, in the condition as imported, possessed the approximate shape or outline of a shingle. The sample was a tapered board measuring eighteen and one-fourth inches in length and ten and eleven-sixteenth inches in width. The tip of the board measured nine-thirty-seconds of an inch (7 mm) and the bottom or butt measured seven-eighths of an inch (22mm). HQ 083795 is, therefore, distinguishable from HQ 082694.

HOLDING

Headquarters Ruling Letter 082694 has been reconsidered and it is the conclusion of the Customs Service that the merchandise was incorrectly classified. The correct classification of the Western Red Cedar boards or “short boards” in issue is 4407.10.0068, HTSUS.

The general column one duty rate is Free.

Headquarters Ruling Letter 082694 is revoked.

Sincerely,

John Durant, Director


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