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HQ 965565




August 30, 2002

CLA-2 RR:CR:TE 965565 ttd

CATEGORY: CLASSIFICATION

TARIFF NO.: 4407.10.0001

Port Director
1000 Second Avenue
Suite 2100
Seattle, WA 98104

RE: Application for Further Review of Protest No. 3001-02-100012; Classification of Deck-Mate Lumber; Heading 4409; Heading 4407

Dear Sir or Madam:

This is a decision on the application for further review (AFR) of Protest Number 3001-02-100012, timely filed by Kirkland & Ellis, on behalf of Vanderhoof Specialty Wood Products Inc. (Protestant), regarding the tariff classification of Deck-Mate lumber. The AFR challenges the liquidation of 15 entries of Deck-Mate lumber, entered between November 22 and November 30, 2000, and liquidated on October 5 and October 12, 2001, which were classified under subheading 4407.10.0001 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The Protestant contends that the finger-jointed wood is classifiable in subheading 4409.10.4500 of the Harmonized Tariff Schedule of the United States (HTSUSA), as wood moldings.

In his letter dated January 12, 2001, the Protestant requested “confidential treatment for the information contained herein and in the attachments.” The Protestant claimed that “[t]he information constitutes confidential commercial and/or financial information, the release of which would cause substantial harm to the competitive position of Vanderhoof” and also stated that “this information is not otherwise available to the public.”

The Protestant requested confidential treatment under 19 CFR 177.2(b)(7), which reads:

Information which is claimed to constitute trade secrets or privileged or confidential commercial or financial information regarding the business transactions of private parties the disclosure of which would cause substantial harm to the competitive position of the person making the request (or of another interested party), must be identified clearly and the reasons such information should not be disclosed, including, where applicable, the reasons the disclosure of the information would prejudice the competitive position of the person making the request (or of another interested party) must be set forth.

While the Protestant has labeled the request as containing confidential information, the mere labeling does not in itself make the information confidential. The Protestant has not specifically identified the material for which confidentiality is sought nor established in what way the disclosure of that information would cause it substantial commercial or financial harm.

It has long been the position of the Customs Service that a section 177.2(b)(7) grant of confidentiality is coterminous with Exemption 4 of the Freedom of Information Act (5 U.S.C. 552(b)(4)). Exemption 4 was enacted to protect from disclosure information such as customer lists, costs, identities of suppliers, quantities of merchandise, formulas, assets, profits, losses, market shares, and similar information, the disclosure of which would enure to the competitive disadvantage of the party providing the information. However, we do not find that the information describing the materials and how they are manufactured discloses any harmful facts about the Protestant. Moreover, that information pertains to the underlying classification issue. Accordingly, confidentiality is denied. However, under the provisions of 31 CFR 1.6, if a Freedom of Information Act request is made for the Protestant’s submission the Protestant will be notified and given an opportunity to further justify the request and, if appropriate, an opportunity to prevent disclosure through judicial action.

FACTS:

The merchandise at issue is described as “Deck-Mate handrails.” The wood is finger-jointed Canadian spruce, pine and/or fir (“S-P-F) measuring 2 inches by 4 inches up to 24 feet in length.

The Protestant claims that the goods are classifiable under subheading 4409.10.4500, HTSUSA, as continuously shaped wood standard coniferous wood moldings. The Protestant claims that it makes the product using stud grade lumber, which it produces and sells, and then “adding a classic decking handrail profile by shaping ¼” continuous chamfers to the top face to achieve an architecturally aesthetic appearance and a 1-3/8” wide, shallow groove to the bottom face as a guide to allow uniform placement of balusters.”

A review of correspondence reveals that the Customs Service previously examined samples of the subject goods. We determined that the groove along the bottom face was of an inconsistent depth ranging from 1 to 2 millimeters (mm). We also found that the bevels along the top face were rough and varied in width along the length. The products exhibited an uneven, rather crude appearance that undermines the Protestant’s claim that the items are “readily recognizable as handrails and bought and sold as handrails in the trade.” In their imported condition, the subject items are not suitable for use as handrails.

We note that the lumber at issue is precision end trimmed (PET), of “stud” grade, and stamped by the Protestant with a mill mark showing the grade and the term “vertical use only.”

ISSUE:

Whether the finger-jointed wood is classifiable under heading 4407, HTSUSA, as general sawn lumber, or under heading 4409, HTSUSA, as continuously shaped wood?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

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.

Heading 4409, HTSUSA, provides for “Wood (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rebated, chamfered, V-jointed, beaded, molded, rounded or the like) along any of its edges, ends or faces, whether or not planed, sanded or edge-jointed.” We note that at the time of entry, heading 4409 did not encompass wood worked on the ends.

The Protestant argues that classification in subheading 4409.10.4500, HTSUSA, is proper based on oral classification advice received from U.S. Customs personnel and “in accordance with three ruling letters on identical or nearly identical products.” However, under 19 C.F.R. 177.1(b), oral advice or opinions of Customs Service personnel are not binding on the Customs Service. Moreover, upon review of three New York Rulings cited by the Protestant, we find that the products in those rulings are noticeably distinguishable from the subject merchandise.

The Protestant contends that Customs has previously classified identically described handrails in subheading 4409.10.4500, HTSUSA, as standard wood moldings. To support its claim, the Protestant cites NY 816080, dated November 22, 1995. However, in that ruling, the lengths of wood had been worked to a greater degree than the subject lumber. In NY 816080, the edges were rounded and the bottoms grooved to a uniform cross-section throughout their length. The Protestant also cites NY E82856, dated June 23, 1999, in which we classified decking handrails in subheading 4409.10.4500, HTSUSA. Unlike here, in NY E82856, the handrail considered had a continuously shaped groove down the length with a 1 to 2 inch wide groove or cutout on the center of the bottom side for attachment to a deck. Moreover, the corners of the top side were cutoff or shaped uniformly throughout the length. Likewise, the Protestant cited NY A85712, dated July 31, 1996, where we also classified continuously shaped deck rails as moldings in subheading 4409.10.4500, HTSUSA. In that ruling, unlike here, the handrails were continuously shaped pieces of wood used in finishing and holding lattice panels in order to make lattice style deck rails or walls. See also NY 802028, dated October 13, 1994 and NY E86123, dated October 15, 1999, wherein Customs classified continuously shaped rails in subheading 4409.10, HTSUSA.

Despite the Protestant’s claims, the merchandise in this case is not continuously chamfered and grooved to the necessary degree to categorize it within heading 4409, HTSUSA. Upon examination, Customs found that the groove along the bottom of each 2 by 4 was shallow and inconsistent, ranging between 1 and 2 millimeters (mm). Moreover, we found that the bevels along the top face were rough and of varying width along the length. Overall, the merchandise exhibited an uneven and relatively crude appearance, undermining the Protestant’s claim that they are “readily recognizable as handrails and bought and sold as handrails in the trade.” In their imported condition, the articles are not as worked as the railings in the above rulings or even suitable for use as handrails.

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. The terms of heading 4407, HTSUSA, do not limit the classification of lumber by grade, price, size or length. The EN to heading 4407, HTSUSA, read, in pertinent part:

With few exceptions, this heading covers all wood and timber, of any length but of a thickness exceeding 6 mm. Such wood and timber includes sawn beams, planks, flitches, boards, laths, etc.

The products of this heading may be planedsanded or end-jointed, e.g., finger-jointed. Emphasis added.

All the physical characteristics and the manufacturing process described, e.g., the length of the boards and producing longer boards by finger-jointing shorter boards, do not prepare the subject merchandise into a recognizable product of heading 4418, HTSUS. Otherwise, any 2 x 4 x 8 would be classifiable in headng 4418, HTSUS, as builder’s joinery and carpentry of wood since it would have the precise length of studs used for building a wall.

In NY 873209, dated May 4, 1992, we found that cutting wood strips or boards to certain specific sizes and easing the edges does not remove the products from the sawn wood of heading 4407, HTSUSA. In this case, the “¼” continuous chamfers” are paramount to easing. Accordingly, we find that the wood in question falls squarely within the terms of heading 4407, HTSUSA, and there is no evidence that the wood is ready, in its condition as imported, to be used as a handrail.

Finally, the Protestant implies that it is entitled to a claim for treatment under 19 U.S.C. 1625(c)(2), contending that over 300 entries of the subject merchandise have been liquidated under subheading 4409.10.4500, HTSUSA, during the period July 1998 through late 2000. However, as the Protestant has not submitted any evidence whatsoever to establish a treatment claim under 19 U.S.C. §1625(c)(2)

To substantiate a claim for treatment under 19 U.S.C. 1625(c)(2), Customs requires evidence of a consistent classification treatment by it on identical or substantially identical transactions. The showing must go back two years prior to the date of the last liquidated entry subject to the claim. The entry information must include a list of every entry of the merchandise both liquidated and unliquidated up to the point where your client was advised to change the classification to that asserted by Customs, the entry number, port of entries, and it must identify any entries that were subject to examination by Customs. The request must also provide the tariff classification, dollar value and the volume of the merchandise. We also require a statement from the importer or his designee that there have been no entries of the merchandise under a tariff provision different from the claimed treatment provision for the same or similar merchandise. This information will then be verified with the affected ports. , we find the request without merit. Accordingly, the request for a claim for treatment under 19 U.S.C. 1625(c)(2) is denied.

HOLDING:

The protest is hereby DENIED.

The subject lumber is classified in subheading 4407.10.0001, HTSUSA, which provides for “Wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or end-jointed, of a thickness exceeding 6mm: Coniferous: Finger-jointed.” The applicable general column one rate of duty is “Free”.

At the time of importation of the merchandise, articles classifiable under subheading 4407.10.0001, HTSUSA, which were products of Canada, were 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.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, a copy of this decision attached to Customs Form 19 (Notice of Action) should be mailed to the protestant no later than 60 days from the date of this decision. Any additional Applications for Further Review currently being held in abeyance and involving merchandise and issues similar to those of the instant case should be disposed of by your office in a manner consistent with the analysis and holding above. Any reliquidation of the entry or entries in accordance with this decision must be accomplished prior to mailing the decision.

No later than sixty days from the date of this letter the Office of Regulations and Rulings will make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act and by other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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