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HQ 965016




July 10, 2001

CLA-2 RR:CR:TE 965016 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 4407.10.0015

Claire E. Reade, Esq. arnold & porter
555 Twelfth Street, N.W.
Washington, D.C. 20004-1202

Dear Ms. Reade:

This is in reply to your letter of April 6, 2001, on behalf of Abitibi Consolidated, Inc. (“Abitibi”) and Produits Forestiers Petit Paris (“Petit Paris”), requesting a written decision confirming that 19 U.S.C. §1625(c) applies to Headquarters Ruling Letter (HQ) 963876, because it modifies a prior interpretive ruling which has been in effect for 60 days and has the effect of modifying a treatment accorded by Customs to substantially identical transactions involving Abitibi and Petit Paris.

FACTS:

Customs issued HQ 963876 on February 12, 2001, denying the Application for Further Review of Protest (AFR) number 0712-00-100107, concerning lumber claimed to be angle cut truss components. Customs classified the merchandise in subheading 4407.10.0015, 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: coniferous: other: not treated: mixtures of spruce, pine and fir (“S-P-F”).

ISSUES:

Do the revocation procedures set forth in 19 U.S.C. §1625(c)(1) apply to New York Ruling Letters (NY) B88564, dated September 9, 1997, NY B81359, dated February 6, 1997 and NY C82087, dated January 9, 1998?

Has Abitibi and Petit Paris established a treatment under 19 U.S.C. §1625?

LAW AND ANALYSIS:

The revocation procedures set forth in section 625 of the Tariff Act of 1930, as amended, 19 U.S.C. §1625 (1994), read:
c) Modification and revocation

A proposed interpretive ruling or decision which would –

(1) modify (other than to correct a clerical error) or revoke a prior interpretive ruling or decision which has been in effect for at least 60 days; or

(2) have the effect of modifying the treatment previously accorded by the Customs Service to substantially identical transactions;
shall be published in the Customs Bulletin. The Secretary shall give interested parties an opportunity to submit, during not less than the 30-day period after the date of such publication, comments on the correctness of the proposed ruling or decision. After consideration of any comments received, the Secretary shall publish a final ruling or decision in the Customs Bulletin within 30 days after the closing of the comment period. The final ruling or decision shall become effective 60 days after the date of its publication.

In your letter you claim that HQ 963876 does not address your client’s 19 U.S.C. §1625(c) claims. However, HQ 963976 specifically addressed the ruling letters you cited and determined that your client’s merchandise was not the same or substantially similar to the merchandise in those rulings. Specifically, we stated:

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.

Next, we note that neither your submissions nor those of prior counsel raised a perfected claim for treatment under 19 U.S.C. §1625(c)(2), or provided any evidence of treatment, even though you were advised during the meeting on December 1, 2000, that you could raise that issue and, in fact, submitted additional arguments after the meeting which did not raise that claim. We note that the submission by prior counsel dated February 24, 2000, stated in footnote 14, on page 20, that “[i]n addition, it appears that a uniform and established practice may exist as a result of the entry of this merchandise under 4418, HTSUS, at numerous ports. See 19 C.F.R. § 177.9.” Customs does not consider this to be a valid assertion of treatment under 19 U.S.C. §1625(c)(2).

The evidence in your recent letter asserting a treatment consists of a list of 182 entries for 1999. No reference is made to entries for the years 2000 through 2001. Of the 182 entries listed, twenty-one were liquidated. Customs liquidated ten of those entries under heading 4407.

Under the facts and circumstances of this particular case, it is Customs opinion that a regular, sustained and continued treatment does not exist. Accordingly, Abitibi and Petit Paris are not entitled to the delayed effective date set forth in 19 U.S.C. §1625(c)(2). Moreover, Customs is not required under 19 U.S.C. §1625(c)(1) to publish notice of revocation of the rulings cited in your letter as the classification of that merchandise is correct and your client’s merchandise is not the same or substantially similar thereto. The procedures set forth in 19 U.S.C. §1625(c)(1), for modification or revocation of a ruling letter do not apply to rulings that are correct as a matter of law.

Moreover, the number of entries liquidated under heading 4418 is miniscule in comparison to the overall number of unliquidated entries for which your client has received a Notice of Action or Request for Information advising them that the merchandise will be liquidated under heading 4407.

HOLDING:

The revocation procedures set forth in 19 U.S.C. §1625(c)(1) do not apply to the revocation of NY B88564, dated September 9, 1997, NY B81359, dated February 6, 1997 or NY C82087, dated January 9, 1998. Furthermore, Abitibi and Petit Paris have not established a treatment under 19 U.S.C. §1625(c)(2). The lumber claimed to be angle cut truss components was correctly classified in HQ 963876 in subheading 4407.10.0015, 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: coniferous: other: not treated: mixtures of spruce, pine and fir (“S-P-F”).

Sincerely,

John A. Durant, Director
Commercial Rulings Division


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