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HQ W968173




September 7, 2006

CLA-2 RR:CTF:TCM 968173 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 4409.20.6500

Port Director
U.S. Customs and Border Protection
101 E. Main Street
Norfolk, VA 23510

RE: Application for Further Review of Protest No. 1401-06-100026

Dear Port Director:

On March 23, 2006, you forwarded an Application for Further Review (“AFR”) of Protest 1401-06-100026, together with the protest and appropriate documents, to the Office of Regulations and Rulings (“ORR”) pursuant to 19 C.F.R. §174.26. We have completed our review of this protest and are returning the protest and appropriate documents forwarded for review to you along with directions for disposition of the protest as set forth below.

FACTS:

Protest 1401-06-100026 was timely filed by Oceanair, Inc., on behalf of Saunders Brothers, on January 26, 2006. The decision protested is the classification and duties chargeable on two entries of beech dowels made through the Port of Norfolk, Virginia on June 2, 2004, and January 18, 2005, respectively. The beech dowels were manufactured in Lithuania.

On each of the entries, Saunders Brothers classified the beech dowels at issue in subheading 4409.20.6000, HTSUSA, as plain wood dowel rods. At the time of entry, merchandise classified in subheading 4409.20.6000, HTSUSA, was subject to a column-one (general) free duty rate.

On October 13, 2005, CBP rate advanced both entries prior to liquidation, classifying the beech dowels at issue in subheading 4409.20.6500, HTSUSA, as wood dowel rods that have been sanded, grooved or otherwise advanced in condition. At the time of entry, merchandise classified in subheading 4409.20.6500, HTSUSA, was subject to a column-one (general) rate of 4.9% ad valorem. Both entries liquidated on October 28, 2005.

Further review of Protest Number 1401-06-100026 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling.

In the Protest, you state: “All of these plain beech dowels have not been sanded, grooved or advanced in condition by any process. We have enclosed pictures from the manufacturer that identifies the Richardson dowel machine and the single production step during which the square wooden blank is rounded into a dowel by the four knife cutter head. The extreme sharpness of each knife produces a dowel of uniform thickness (diameter) with a smooth surface.” You did include the referenced pictures, as well as a statement from the manufacturer stating that the dowels at issue have not been sanded, grooved or advanced in condition prior to importation.

A sample from one of the entries covered by Protest Number 1401-06-100026 was forwarded to this office for review. This sample was reviewed by the National Import Specialist whose area of responsibility includes wood and, subsequently, tested by CBP’s Savannah Laboratory.

ISSUE:

What is the classification of the beech dowels at issue?

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." If the 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, in order.

It is not disputed that the dowels at issue are classified in heading 4409, HTSUSA. Classification at the subheading level is disputed in this matter. Classification at the subheading level is made in accordance with GRI 6, which states:

For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

A decision in this matter rests on a question of fact rather than a question of law. If the beech dowels at issue have been sanded, grooved or otherwise advanced in condition, they are classified in subheading 4409.20.6500, HTSUSA. If they have not, they are classified in subheading 4409.20.6000, HTSUSA, as plain wood dowel rods.

CBP’s National Import Specialist (“NIS”) whose area of responsibility includes wood products reviewed a sample of the merchandise at issue on May 17, 2006. The NIS reported that: “An examination of the sample shows two sets of cross marks diametrically positioned on the surface. The cross marks are evidence of additional smoothing of the ridges that would normally appear after dowels are manufactured.” The NIS further indicated that the ridges may have been removed through a smoothing process such as tumbling.

Subsequent to the NIS’ review of the sample, it was sent to CBP’s Savannah Laboratory, which issued Laboratory Report SV20061386, dated August 22, 2006, regarding its review of the sample. In this report, the analyst stated:

The sample is one wooden dowel that is 1 5/8 inches in diameter by 14 inches in length. Under magnification it appears that there are no tooling marks present that would be consistent with the stock having been turned on a lathe or extrusion methods for producing the dowel. It is therefore our opinion that the dowel has been sanded.

Based on our review of the merchandise as described above, we conclude that the entries were properly liquidated. We emphasize that there are no tooling marks or ridges on the sample that we evaluated, both of which would normally be present on dowels manufactured using a single rod dowel machine with a four knife cutter head that have not been sanded or further worked.

HOLDING:

The wood dowels at issue are classified in subheading 4409.20.6500, HTSUSA, as wood dowel rods that have been sanded, grooved or otherwise advanced in condition. The applicable column one (general) rate of duty at the time of entry was 4.9% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov.

Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny the protest in full. In accordance with Section IV of the Customs Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision.

No later than 60 days from the date of this letter, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and by other methods of public distribution.

Sincerely,


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