United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2004 HQ Rulings > HQ 966658 - HQ 966771 > HQ 966756

Previous Ruling Next Ruling
HQ 966756

August 19, 2004

CLA-2 RR:CR:TE 966756 RH


TARIFF NO.: 4407.10.0015

Port Director
U.S. Customs and Border Protection
111 West Huron Street
Buffalo, New York 14202

RE: Decision on Application for Further Review of Protest 0901-03-100044; Notched Lumber for Wiring or for Joining; Heading 4407; Heading 4418;

Dear Sir:

This letter addresses the Application for Further Review of Protest (AFR) number 0901-03-100044 that you forwarded to our office for a decision.

Your request for confidential treatment is granted.


The law firm of Alston & Bird, LLP, timely filed the AFR, on behalf of Banks Lumber Co., Inc. (“Banks”), against the classification and liquidation of numerous entries of lumber. Customs and Border Protection (“CBP”) liquidated the entries on November 8, 2002, under subheading 4407.10.0015 of the Harmonized Tariff Schedule of the United States (HTSUS), as general sawn lumber.

The protestant entered the lumber between March 31, 1999 through July 17, 2000, under subheading 4418. 90.4090, HTSUS, as other builders’ joinery and carpentry of wood.

Headquarters Review of the AFR is warranted pursuant to 19 CFR §§174.24 and 174.25.

The protestant states that it produces highly specialized fabricated structural wood members, commonly referred to as “notched studs” and “notched floor
joists” that are completely finished, prefabricated parts of wall and floor systems used by the U.S manufactured housing and recreational vehicle industry. The protestant further states that these “parts” are made to HUD-approved plans and specifications provided by each manufactured home or recreational vehicle industry customer. Typical manufactured homes and recreational vehicles consist of non-structural sheathing fastened to a frame made from prefabricated structural wood members. This frame is characterized by one or more horizontal reinforcing members, called "belt rails" in the walls and "strongbacks" in the floors, joined to the studs and joists with pre-cut dados or “notches.” These horizontal members provide the lateral strength and rigidity provided by the structural sheathing, such as drywall, used in conventional home construction. They also permit the home to withstand the unique stresses to which manufactured homes are subjected when moved or exposed to strong winds and updrafts. Furthermore, the petitioner states that additional notches are provided to form a prefabricated chase for running wiring and plumbing. Customer specifications determine the size, location and number of notches, which are used in both floor and wall stud application. In the floor joint application, there are from one to six notches that are ¾” deep and from ¾” to 1” wide in 2 x 4, 2 x 6, or 2 x 10 lumber of various precision-cut lengths. Wall stud applications include one to six notches on one or both sides of the stud that are ¾” to 1” deep and ¾” to 2 ½” wide in 2 x 2, 2 x 3, 2 x 4, and 2 x 6 lumber of various precision-cut lengths. The notches for both floor joists and wall studs are used to accommodate belt rails or strongbacks as well as electrical wiring and plumbing.


Is the merchandise under protest classifiable under heading 4407, HTSUS, as general sawn lumber or under heading 4418, HTSUS, as builders’ joinery and carpentry of wood?


Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order.

Chapter 44, HTSUS, 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, HTSUS, is a general provision for wood in the rough, whether or not stripped of bark or sapwood or
roughly squared, and heading 4421, HTSUS, is a basket provision for more advanced articles of wood that cannot be classified elsewhere in the chapter.

As heading 4407 resides at the beginning of Chapter 44, HTSUS, it reflects coverage of a relatively basic category of lumber products in relation to heading 4418, which, residing closer to the end of Chapter 44, HTSUS, reflects coverage of a relatively more advanced category of products. Heading 4407, HTSUS, provides for wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding 6mm. CBP believes that, while not dispositive, the Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) should always be consulted when resolving a particular classification question. In this regard, the EN to heading 4407, HTSUS, state in relevant part:

The products of this heading may be planed (whether or not the angle formed by two adjacent sides is slightly rounded during the planing process), sanded, or end-jointed, e.g. finger-jointed (see the General Explanatory Note to this Chapter).

Heading 4418, provides for, among other things, builder’s joinery and carpentry of wood. The EN to heading 4418, HTSUS, state in pertinent part:

This heading applies to woodwork, including that of wood marquetry or inlaid wood, used in the construction of any kind of building, etc., in the form of assembled goods or as recognizable unassembled pieces (e.g., prepared with tenons, mortises, dovetails or other similar joints for assembly), whether or not with their metal fittings such as hinges, locks, etc.

The term "joinery" applies more particularly to builders' fittings (such as doors, windows, shutters, stairs, door or window frames), whereas the term "carpentry" refers to woodwork (such as beams, rafters and roof struts) used for structural purposes or in scaffoldings, arch supports, etc., and includes assembled shuttering for concrete constructional work. ...

On June 9, 1999, CBP published a final notice of revocation of four ruling letters and revocation of treatment relating to the tariff classification of notched lumber used to facilitate the installation of electrical wires, cables or pipes in a wall. Customs Bulletin, Vol. 33, No. 22/23, dated June 9 1999. In that notice, classification of the notched studs was changed from heading 4418, HTSUS, to heading 4407, HTSUS. In the notice, we found that the notched studs were not
in the form of assembled goods, did not qualify as recognizable unassembled pieces and did not serve the “structural purpose” intended by the EN to heading 4418. The revocation notice was effective for merchandise entered or withdrawn, from warehouse for consumption on or after August 9, 1999, in accordance with 19 U.S.C. § 1625(c)(1).

The protestant states that “64 out of the 100 entries” under protest cover notched lumber utilized in wiring applications and that CBP erred in liquidating those entries under heading 4407, HTSUS, because they were entered before August 9, 1999. In order to verify this claim, we asked the protestant to submit evidence establishing that those entries covered lumber notched for wiring as opposed to joining, since the entry documents only provide the dimensions of the lumber and number of notches but does not specify their intended purposes. Specifically, we identified five entries and asked the protestant to submit documentation, i.e., purchase orders, invoices, drawings, specifications, etc., and any other evidence to support its allegations.

The protestant responded by stating that it “knows the use of the notches based on its customer’s specifications.” If there is only one notch, “it is typically for use in wiring applications” and multiple notches are “typically used for joining.” For the five entries, the protestant produced broker invoices, bills of lading and schematic drawings. In a footnote, the protestant states that the drawings provided with each of the five entries were originally generated by Banks as exhibits to petitions responsive to the assessment of liquidated damages on Bank’s entries of notched lumber. The images were produced using specialized design software and several images were included on a single page to conserve space. Additionally, the protestant claims that the notched studs depicted on each drawing were specifically manufactured according to exacting customer specifications. Typically, however, the protestant states that it relies upon verbal instructions, or handwritten notes or drawings, from its customers regarding the number of notches, as well as their locations and dimensions.

The images with “exacting customer specifications” produced by the protestant for the notched lumber in the five entries do not correspond to the lumber from the actual shipments. For example, invoices for two of the entries list the boards’ dimensions as 2 x 6 x 14’ with one dado. The submitted drawings for these entries show the dado to be 4” from the end of the board. However, in one of the entries the board actually has only one notch ¾” from the end of the board and in the other entry the board has only one notch one inch from the end of the board. An invoice for another one of the five entries describes the merchandise as 2 x 6 x 81 ¾” with one dado. The drawing submitted for this entry does not specify in inches where the dado is located on the board. However, the drawing depicts the dado located approximately ¼th of the way from the end of the board, which would be approximately 20”, if the drawing is accurate. The board pulled from
the shipment, however, has one notch only 3 ½ inches from the end of the board. In the other two entries, the notches are less than 6 inches from the end of the board but are within an inch of what is depicted in the drawings. We note that at a meeting, the protestant’s representative stated that its notches for wiring are generally from 10” to 14” from the end of the board, and that they would not be less than 4” to 6” from the end of the board.

The merchandise that was the subject of the revocation letters covered lumber measuring between 81” to 120” in length with notches between 6” to 18” from the end of the board. The protestant’s merchandise is not similar to the merchandise covered by that notice. In our opinion, the notches on three of the five boards sampled clearly have no functional purpose, and CBP would never have classified those boards in heading 4418, HTSUS. The classification of the protestant’s merchandise, even prior to the revocation notice, would have been in heading 4407, HTSUS, as general lumber. We find that the information submitted by the protestant to support its claim that the entries were for lumber notched for wiring is not credible, as it is so different from the samples examined. We further find that CBP correctly liquidated the 64 entries of lumber entered prior to August 9, 1999, in heading 4407, HTSUS, as general sawn lumber.

Another issue raised by the protestant is that it established a treatment of notched lumber for joining under heading 4418, that was not revoked, and that CBP erroneously liquidated the entries for notched lumber for joining under heading 4407, HTSUS, without following the 19 U.S.C. 1625(c)(2) notice and comment procedures.

The protestant also states that CBP “admitted” that Banks’ treatment was not revoked in the August 9th revocation, as evidenced by the following language from the notice:

One commenter [Banks] noted that his notched studs included studs which feature notches on the face of the board to accommodate another piece of lumber, and when assembled together produce another good, allegedly qualifying within the parameters of the distinction set forth by Customs in the proposed revocation notice, although such merchandise is outside the scope of this revocation notice, that merchandise is still subject to Customs ongoing review.” Emphasis added.

Contrary to counsel’s contention, this language indicates that the classification of notched lumber for joining was still “under review” and in no way suggests that the protestant has a classification treatment.

CBP has held that to substantiate a claim for treatment under 19 U.S.C. §1625(c)(2), CBP 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 the importer was advised to change the classification to that asserted by CBP, the entry number, port of entries, and must identify any entries that were subject to examination by CBP. 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 is then verified with the affected ports. See HQ 964427, dated October 27, 2000, HQ 965138, dated August 1, 2001, HQ 965079, dated July 25, 2001, and HQ 964515, dated August 16, 2001. These requirements were codified at 19 CFR § 177.12.

The claim of treatment fails for several reasons. The protestant states that the first liquidation of notched lumber for joining under heading 4418, HTSUS, occurred on October 22, 1999, and the last one occurred on August 10, 2001. During that time frame, the protestant states that fifty-two entries of notched lumber for joining liquidated under heading 4418, HTSUS. Exhibit 4 to Tyler Steele’s Declaration is a list of 52 entries. However, the protestant did not provide any documentation to prove that these entries were, in fact, lumber notched for joining as opposed to wiring, other than the mere dimensions of the boards with the alleged number of notches.

We also deny the protestant's statement that the National Import Specialist or anyone from Headquarters advised it that the notched lumber was correctly classified under heading 4418. In any event, oral advice is not binding on CBP. See 19 CFR § 177.1(a)(1).

In Headquarters Ruling Letter (HQ) 963814, dated May 9, 2000, CBP stated that lumber notched for joining is not readily distinguishable from cable and pipe notches, which were the subject of the Customs Bulletin notice. We further stated that this office cannot distinguish notches stated to be for purposes of “joining” the studs together from notches stated to be designed for the purpose of installing cables. The same is true in this case. The protestant has not provided any credible evidence to aid us in distinguishing the notched lumber allegedly for wiring and the notched lumber allegedly for joining.

As we stated in the Customs Bulletin notice, it is the agency’s position that the notching of these studs does not cause this merchandise to be considered as one of the relatively advanced articles provided for under heading 4418, HTSUS,
that is, “builders’ joinery and carpentry of wood.” This merchandise is neither in the form of an assembled good nor exhibits some feature (e.g., prepared with tenons, mortises, dovetails or other similar joints for assembly) which qualifies it as a recognizable unassembled piece. Accordingly, the notched studs at issue are not considered to serve a structural purpose within the meaning of the EN to heading 4418, HTSUS, and are correctly classified in heading 4407, HTSUS.

Based on the foregoing, we conclude that the protestant failed to establish a treatment of notched lumber for joining under heading 4418, HTSUS, and, contrary to the protestant’s claim, the 19 U.S.C. § 1625(c)(2) procedures revoking a treatment were not required to liquidate the entries at issue under heading 4407, HTSUS.

Additionally, we disagree with the protestant that the extensions of liquidation in this case were unreasonable and unwarranted. The extensions occurred during the statutorily prescribed time and the entries were all liquidated prior to the extension period.

Finally, counsel for the protestant argues that CBP cannot liquidate the entries of notched lumber under heading 4407, HTSUS, based on a panel convened under the Canada-United States Softwood Lumber Agreement, which found that notched lumber, as well as drilled studs, was properly classified under heading 4418, HTSUS. In the Matter of the U.S. Customs Service’s Revocation of Ruling Letters Relating to the Tariff Classification of Drilled Studs and Notched Lumber on July 1, 1998 and June 9, 1999 Respectively, Report of the Panel at 57 (March 29, 2001).

We do not agree. A decision by an arbitration tribunal on the subject of whether the United States violated an international agreement with another country is not binding on the United States vis-a-vis classification decisions. The Court of International Trade has exclusive jurisdiction to review CBP’s classification decisions. 28 U.S.C. § 1581.


The subject notched studs are properly classifiable in subheading 4407.10.0015, HTSUS, which provides for “Wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding 6 mm: Coniferous: Other: Not treated: Mixtures of spruce, pine and fir.” The applicable general column one rate of duty is “Free”.

Articles classifiable under subheading 4407.10.0015, HTSUS, during the time period in question, 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 had to be annotated with the Canadian province of manufacture. If manufactured in Ontario, Quebec, British Columbia or Alberta, a permit was required. Sincerely,

Myles B. Harmon
Director, Commercial Rulings Division

Previous Ruling Next Ruling

See also: