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NY I89196




December 24, 2002

CLA-2-44:RR:NC:2:230 I89196

CATEGORY: CLASSIFICATION

TARIFF NO.: 4407.10.0068

Mr. Curtis Smelser
Ryan, Swanson, Cleveland, PLLC
1201 Third Avenue
Suite 3400
Seattle, Washington 98101-3034

RE: The tariff classification of Western Red Cedar boards from Canada

Dear Mr. Smelser:

In your letter dated November 22, 2002, you requested a tariff classification ruling on behalf of Shakertown 1992, Inc. (Shakertown).

The product in question is described in your letter as “Western Red Cedar Straight Sawn Shakes” measuring less than 24 inches in length, less than 14 inches in width (the edges are parallel to within ½ inch), and ¾ inch thick, nominal. In addition, one end of the boards is stated to have been grooved. A sample was submitted.

The submitted sample measures approximately 5-13/16 inches wide by 18-5/16 inches long and ¾ inch thick. It exhibits rough sawn surfaces. At one end, it has a rabbet that runs across the width of one surface. The rabbet measures 1/8 inch wide and 1/8 inch deep.

As you indicate in your letter, the Customs Service reviewed the classification of the subject product in ruling HQ 964202 dated October 25, 2000. At that time, Shakertown identified the subject product as “Western Red Cedar short boards”. The Customs Service reaffirmed the classification of your product under subheading 4407.10.0068, Harmonized Tariff Schedule of the United States (HTSUS). In your present letter, you are identifying the subject product as “Western Red Cedar Straight Sawn Shakes”. In addition, you are indicating that the product reviewed in HQ 964202 has been modified by adding a rabbet at one end of the boards. The rabbet, you state, is designed to aid in the manufacturing process of a “shake panel” and to reduce waste during the manufacturing process. (The tariff classification of “shake panels” was the subject of ruling NY I83626 dated July 8, 2002 issued to Norman G. Jensen, Inc. on behalf of Shakertown.)

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) 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 HTSUS by offering guidance in understanding the scope of the headings and General Rules of Interpretation. While neither legally binding nor dispositive of classification issues, the ENs provide commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

Although not at issue in this case, it is relevant and instructive to call attention to the definition of the term “shake” under ENs 44.18:

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.

The subject boards are sawn boards. Thus, they are not “shakes”.

It is your opinion that the subject boards should be classifiable under heading 4409, HTSUS, which provides for wood 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 end-jointed. Specifically, you believe that they should be classified under subheading 4409.10.05, HTSUS, which provides for wood continuously shaped along any of its ends. We disagree.

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI), taken in order. GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.

Heading 4407, HTSUS, provides for wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or end-jointed, of a thickness exceeding 6mm.

The ENs to heading 44.07 state in relevant part as follows:

With a few exceptions, this heading covers all wood and timber, of any length but of a thickness exceeding 6 mm, sawn or chipped along the general direction of the grain Such wood and timber includes sawn beams, planks, flitches, boards, laths, etc

It is to be noted that the wood of this heading need not necessarily be of rectangular (including square) section nor of uniform section along the length.

Heading 4409, HTSUS, provides for wood 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 end-jointed.

The ENs to heading 44.09 state as follows:

This heading covers timber, particularly in the form of boards, planks, etc., which after sawing or squaring, has been continuously shaped along any of its edges, ends or faces either to facilitate subsequent assembly or to obtain the mouldings or beadings described in Item (4) below, whether or not planed, sanded or end-jointed, (emphasis added)

The critical question in the classification of the subject product regards the identification of the merchandise in the condition as imported, that is, end-worked in the fashion described. Specifically, we need to determine if the addition of an 1/8 inch rabbet at one end of the subject boards for the purpose of preventing damage and reducing waste during the manufacturing of another product (shake panels) in the United States has created a new, distinct, and separate commercial article.

Heading 4409, HTSUS, requires that products classifiable therein have to be continuously shaped. The ENs to 44.09 explain that the envisioned shaping has to be for the purpose of facilitating subsequent assembly. Various exemplars are given including “rebated”.

We do not believe that the 1/8 inch rabbet present at one end of the subject boards accomplishes what is envisioned by the language of heading 4409, HTSUS, that is, facilitates subsequent assembly. In fact, the rabbet has no relevant purpose in the identity and the application of the imported boards. The rabbet has not changed the “short boards” that were the subject ruling HQ 964202 into new commercial articles.

The manufacturing of “shake panels” from the subject “short boards” is a complex and multiple step process. (See rulings NY I83626 and HQ 964202.) The subject 1/8 inch rabbet has no direct function at all in the process of manufacturing “shake panels”.

We find that the rabbet feature neither dedicates the subject merchandise to any specific use not is it a commercially relevant feature. More importantly, the subject 1/8 inch rabbet does not constitute shaping for purposes of heading 4409, HTSUS.

The applicable subheading for the subject “Western red cedar straight sawn shakes” (also known as “short boards”) will be 4407.10.0068, Harmonized Tariff Schedule of the United States, 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, Western red cedar, rough. The rate of duty will be free.

The merchandise in question 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, N.W. Washington, DC 20230. 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 and origin rulings issued by Customs.

The holding set forth above applies only to the specific factual situation and merchandise description as identified in the ruling request. This position is clearly set forth in 19 CFR 177.9(b)(1). This section states that a ruling letter is issued on the assumption that all of the information furnished in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect.

This ruling is being issued under the assumption that the subject goods, in their condition as imported into the United States, conform to the facts and the description as set forth both in the ruling request and in this ruling. In the event that the facts or merchandise are modified in any way, you should bring this to the attention of Customs and you should resubmit for a new ruling in accordance with 19 CFR 177.2. You should also be aware that the material facts described in the foregoing ruling may be subject to periodic verification by the Customs Service.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Paul Garretto at 646-733-3035.

Sincerely,

Robert B. Swierupski
Director,

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