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HQ 966122




March 26, 2003

CLA-2 RR:CR:TE 966122 ttd

CATEGORY: CLASSIFICATION

TARIFF NO.: 4407.10.0069

William Robertson
Kettle Valley Garden Products
1151 West 8th Ave., 2nd Floor
Vancouver, B.C. V6H 1C5
Canada

RE: Request for Reconsideration of New York Ruling Letter I88203; Classification of Cedar Grilling Planks from Canada; Heading 4407

Dear Mr. Robertson:

This is in reply to your letter dated December 10, 2002, requesting reconsideration of New York Ruling Letter (NY) I88203

NY I88203 was modified in part by NY I88740, dated December 19, 2002, to correct an inadvertent typographical error transposing the tariff number at the 8-digit and 10-digit levels., dated November 26, 2002, regarding the classification of cedar grilling planks under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). After review of NY I88203, Customs has determined that the classification of the grilling planks in subheading 4407.10.0069, HTSUSA, was correct. For the reasons that follow, this ruling affirms NY I88203, as modified by NY I88740.

FACTS:

In NY I88203, the merchandise under consideration was classified in subheading 4407.10.0069 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, Other: Not treated: Other: Western red cedar: Other.” In NY I88203, the cedar grilling planks were described as follows:

. . . The planks consist of rectangular boards of western red cedar measuring approximately 15” long by 7” wide by 3/8” thick. The edges and ends of the boards are square and unworked. Both faces of the boards have a rough combed texture. You refer to the surface work as grooving; however, the boards do not have the appearance of wood continuously grooved on the faces. The surface processing appears similar to rougher header planing.

The boards are sold in packages of four as cedar grilling planks to be used as cooking utensils on a barbecue. . . .

We note that you submitted two samples of the grilling planks. The first sample exhibits a straight, rough, combed pattern texture on the surfaces of the boards that you claim are continuously grooved faces. A second sample of grilling planks submitted on February 3, 2003, to the National Commodity Specialist Division (NCSD) in New York has a rough sawn wood texture and is stamped or branded with a fish design near two diagonal corners of one surface.

ISSUE:

Whether the subject grilling planks are classified under heading 4407, HTSUSA, as general sawn lumber; heading 4418, HTSUSA, as shingles and shakes; heading 4419, HTSUSA, as kitchenware or tableware; or heading 4421, HTSUSA, as other articles of 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 4407, HTSUSA, provides for “[w]ood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or end-jointed, of a thickness exceeding 6mm.” Heading 4407 is drafted to be a broad provision for the classification of material. 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 planed . . . sanded or end-jointed, e.g., finger-jointed. Emphasis added.

In Headquarters Ruling Letter (HQ) 964446, dated January 15, 2001, Customs reclassified Western Red Cedar “short boards” from subheading 4418.50.0040 to subheading 4407.10.0068, HTSUSA. In that ruling, we concluded that the boards considered were properly classified pursuant to GRI 1 because they satisfied the dictates of heading 4407, since they were “Wood sawn or chipped lengthwise . . . of a thickness exceeding 6 mm.”

In this situation, the subject boards have not been sufficiently processed beyond the stage of material lumber. Rather, they are rectangular lumber boards sawn to size and used for grilling fish. Heading 4407, HTSUSA, does not distinguish products according to their end use or by their method of packaging. Merely because general sawn lumber, like the subject planks, can be used for grilling purposes does not mean that they advance beyond anything other than general sawn lumber. The subject planks fall squarely within the terms of heading 4407, HTSUSA, as “Wood sawn or chipped lengthwise of a thickness exceeding 6 mm.” This finding is consistent with NY I81875, dated June 3, 2002, and NY I88161, dated December 5, 2002, wherein Customs classified planed western red cedar planks used to serve fish in subheading 4407.10.0069, HTSUSA.

We disagree with your assertion, in your letter dated December 10, 2002, that the planks could be classified in subheading 4418.50, HTSUSA, as shingles or shakes. Subheading 4418.50 provides for “Builders’ joinery and carpentry of wood, including cellular wood panels and assembled parquet panels; shingles and shakes: Shingles and shakes.” The EN to heading 4418 provides, in pertinent part, the following:

A shingle is wood sawn lengthwise which is generally thicker than 5 mm at one end (the butt) but thinner than 5 mm at the other end (the tip). It may have its edges resawn to 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.

A shake 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.

In HQ 964202, dated October 25, 2000, we affirmed HQ 085187, dated September 6 1989, finding that certain Western Red Cedar “short boards” were not sufficiently processed beyond the stage of material lumber. In that ruling, the rectangular lumber boards were sawn to size but were not tapered from end to end, nor were they in a condition in which they were dedicated for use only as shingles. They did not have the approximate shape or outline of shingles, and we concluded that the short boards were “plain sawn wood suitable for multiple uses and not recognizable as one particular article of commerce.”

Here, the subject planks, like the “short boards” in HQ 964202, are not tapered from end to end, nor are they in condition to be dedicated for use only as shingles. Moreover, the subject planks are not split like shakes. Therefore, like the short boards in HQ 964202, the subject planks are not properly classified in subheading 4418.50, HTSUSA, as shingles or shakes.

In addition, we disagree with your assertion that the product qualifies as a cooking utensil under subheading 4419.00.8000, HTSUSA. Heading 4419, HTSUSA, provides for “Tableware and kitchenware, of wood.” The EN to heading 4419 provide the following:

This heading covers only household articles of wood, whether or not turned, or of wood marquetry or inlaid wood, which are of the nature of tableware or kitchenware. . . .

The EN to heading 4419 also provide the following list of exemplars included within the scope of the heading:

This heading includes: spoons, forks, salad-servers; platters and serving-dishes; jars, cups and saucers; common spice-boxes and other kitchen containers; crumb-scoops, not incorporating brushes; napkin rings; rolling pins; pastry moulds; butter patters; pestles; nutcrackers; trays; bowls; bread boards; chopping boards; plate racks; capacity measures for use in the kitchen.

The subject grilling planks, contrasted to the articles encompassed by heading 4419, are not used as either kitchenware or tableware. When utilized, the planks at issue will char and blister until they deteriorate and decompose during the grilling process. While the subject planks may be used for grilling purposes, which may be considered a cooking process, they are not kitchenware nor tableware. The planks have not been processed to the degree of the articles encompassed by the exemplars nor are they recognizable as tableware or kitchenware. Accordingly, the planks are not classified in subheading 4419.00.8000, HTSUSA, as other tableware and kitchenware, of wood.

Finally, we disagree with your claim that the subject grilling planks are properly classified in heading 4421. 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 grilling planks are specifically provided for in heading 4407, HTSUSA, they are precluded from classification in heading 4421, HTSUSA.

HOLDING:

NY I88203, as modified by NY I88740, is AFFIRMED.

The subject grilling planks are classified in subheading 4407.10.0069, 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: Other: Not treated: Other: Western red cedar: Other.” The applicable general column one rate of duty is “Free”.

The merchandise at issue may be subject to antidumping 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: http://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, DC 20230. Written decisions regarding the scope of AD/CVD orders are issued by the Import Administration in Department of Commerce and are separate from tariff classification and origin rulings issued by Customs.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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