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HQ 965869





November 21, 2002

CLA-2 RR:CR:TE 965869 ttd

CATEGORY: CLASSIFICATION

TARIFF NO: 4407.10.00; 4421.90.7040

F. Gordon Lee, Esq.
O’Connor & Hannan, L.L.P.
Suite 500
1666 K Street, NW
Washington, DC 20006-2803

RE: Classification of Fence Pickets and Backer Rails

Dear Mr. Lee:

This is in response to your letter, dated July 31, 2002, on behalf of Universal Forest Products, Inc., requesting a binding ruling regarding the classification of unassembled fence panels under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Your letter, which was originally submitted to the Customs National Commodity Specialist Division (NCSD) in New York, was referred to this office for reply.

FACTS:

The articles under consideration are described as unassembled fence panels, consisting of fence pickets and backer rails. The pickets are described as 1-inch or less in actual thickness, up to 8-inches wide and 6-feet or less in length. The pickets have finials or decorative cuttings that clearly identify them as fence pickets. Their tops are either French Gothic, Gothic or dog-ear cut. In the case of the dog-eared cut pickets, the corners of the boards will be cut so as to remove pieces of wood in the shape of isosceles right angle triangles with sides measuring ¾ inch or more. The backer rails are plain boards with straight-cut edges, faces and ends and have nominal dimensions of 2-inches by 3-inches, 1-inch by 3-inches, or 1-inch by 4-inches. The length of the rails range from 3 feet to 8 feet. We note that the type of wood of the pickets and backer rails is not specified, but we presume that softwood species are utilized. We further note that although the pickets and rails “will not be packaged together as single unassembled fence panels,” they will nevertheless be shipped together in the proper ratio to assemble a predetermined number of such panels. The individual pickets and rails will not require further processing after importation, and need only be fastened together in the appropriate configuration to produce a fence panel.

ISSUE:

What is the proper classification of the subject merchandise?

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.

Regarding the subject merchandise, the competing headings under consideration are heading 4407, HTSUSA, which covers wood sawn or chipped lengthwise and heading 4421, HTSUSA, which covers other articles of wood. As heading 4407 resides near the beginning of chapter 44, it reflects coverage of a relatively basic category of lumber products in relation to heading 4421, which residing closer to the end of the chapter, reflects coverage of a relatively more advanced category of products.

In your letter, you contend that the component parts for fence panels (pickets and backer rails) are classified under subheading 4421.90.7040, HTSUSA, which provides for “Other articles of wood: Other: Pickets, palings, posts and rails, the foregoing which are sawn; assembled fence sections, Other.” You assert that “the foregoing eo nomine provision is believed by Universal to be the correct classification in that it specifically describes the product, i.e., pickets, rails, and fence sections.” You further assert that GRI 2(a) should apply. We disagree.

GRI 2(a) states:

Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.

However, as stated above, GRI 1 provides, in part, that classification is “determined according to the terms of the headings and any relative section or chapter notes.” Therefore, the remaining GRI may only be applied 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 goods under consideration can be classified solely on the basis of GRI 1 and, therefore, GRI 2(a) is inapplicable to this situation.

In NY E86123, dated October 15, 1999, Customs classified fence kits (unassembled fence components), consisting of pickets, backer rails and posts, as separate components. In that ruling, we noted that the applicable subheading for wood fencing panels (4421.70.7020) specifies that they be assembled fence sections. (emphasis added). Accordingly, we found that when fence panels are imported in an unassembled condition, they are properly classified according to their separate components (i.e., pickets, palings, posts, and rails). Therefore, as the terms of subheading 4421.90.7020, HTSUSA, preclude reliance on GRI 2(a) for classification of the unassembled fence panels, each unassembled component must be classified separately depending on its condition as imported. Likewise, in NY I84125, dated August 6, 2002, we classified “unassembled fences shipped as an entirety” in subheading 4407.10.00, HTSUSA, finding that they were merely collections of unworked lumber, which lacked distinctive characteristics. In their imported condition, we found the “unassembled fences” were recognizable only as separate components of lumber. Since they were neither assembled fence sections nor recognizable pickets, palings, posts or rails, the merchandise lacked attributes advancing it beyond the terms of heading 4407, HTSUSA.

Heading 4407, HTSUSA, provides for "Wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or end-jointed, of a thickness exceeding 6 mm." Like the backer rails in NY I84125, the backer rails under consideration are neither assembled into fence sections nor recognizable as rails. The subject backer rails are unfinished, have not been further worked and have not been advanced beyond the point of being dedicated as fence rails. Rather, they are plain boards, recognizable only as lumber. Therefore, like the rails in NY I84125, they lack the attributes necessary to advance them beyond the terms of heading 4407, or to render them “other articles of wood” under heading 4421. Accordingly, the subject backer rails fall squarely within the terms of heading 4407, HTSUSA.

Heading 4421, HTSUSA, which provides for "Other articles of wood," is a basket provision for more advanced articles of wood that cannot be classified elsewhere in the chapter. As the subject rails are more specifically provided for in heading 4407, HTSUSA, they are precluded from classification in heading 4421, HTSUSA. However, the subject pickets are processed beyond the sawn wood of heading 4407, HTSUSA, and are not provided for elsewhere in chapter 44. They have finials or decorative cuttings and their tops are either French Gothic, Gothic or dog-ear cut, clearly identifying them as fence pickets. Accordingly, they are recognizable as pickets and are within the dimensions considered normal for pickets. See NY F87691, dated June 19, 2000, wherein Customs determined pickets classified in subheading 4421.90.7040, HTSUSA, must be imported in lengths of 6 feet or less. Therefore, the subject pickets are classified under subheading 4421.90.7040, HTSUSA, which provides for “Other articles of wood: Other: Pickets, palings, posts and rails, the foregoing which are sawn; assembled fence sections, other.”

HOLDING:

The subject pickets are classified under subheading 4421.90.7040, HTSUSA, which provides for “Other articles of wood: Other: Pickets, palings, posts and rails, the foregoing which are sawn; assembled fence sections, Other.” The general one column rate of duty will be free.

The subject backer rails are classified in subheading 4407.10.00, HTSUSA, which provides for “Wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or end-jointed, of a thickness exceeding 6 mm: Coniferous.” We note that we have insufficient information to classify the merchandise beyond the 8 digit subheading level. The general one column rate of duty will be free. The backer rails at issue may be subject to antidumpting duties and/or countervailing duties. A list of AD/CVD proceedings at the Department of Commerce (DOC) and their product coverage can be obtained from the DOC website at www.ia.ita.doc.gov, or you may write to them at the U.S. Department of Commerce, International Trade Administration, Office of Antidumping Compliance, 14th Street and Constitution Avenue, NW, Washington, DC20230. Written decisions regarding the scope of AD/CVD orders are issued by the Import Administration in the Department of Commerce and are separate from tariff classification rulings issued by Customs.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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