HQ 963876

February 12, 2001

CLA-2 RR:CR:TE 963876 RH

CATEGORY: Classification

TARIFF NO.: 4407.10.0015

Port Director

U.S. Customs

196 West Service Road

Champlain, NY 12919

RE: Protest Number 0712-00-100107; classification of angle cut lumber;
heading 4407; heading 4418; truss components

Dear Sir:

This is in reply to the Application for Further Review of Protest (AFR)
number 0712-00-100107, filed by the law firm of Kirkland & Ellis, on
behalf of Abitibi Consolidated, Inc. ("Abitibi"), and Produits
Forestiers Petit Paris, Inc. ("Petit Paris"), concerning the
classification of merchandise claimed to be angle cut truss
components.[^1] The AFR was timely filed on June 15, 2000.

Initially, we note that Kirkland & Ellis filed a Request for Internal
Advice (IA), on behalf of Abitibi and Petit Paris, concerning the same
issue (classification of merchandise claimed to be angle cut truss
components) at the Port of St. Albans on February 24, 2000. Although the
IA request covers two different entries of merchandise, the issues and
arguments are identical. Accordingly, we are consolidating the two cases
and issuing one ruling letter on the classification of the merchandise.

We also note that Kirkland & Ellis withdrew from both cases on October
31, 2000, and the law firm of Arnold and Porter now represents the
importers.

\- 2 -

FACTS:

Abitibi is the exclusive sales representative of Petit Paris
merchandise. Abitibi and Petit Paris produce and Abitibi sells softwood
lumber made from spruce, pine and fir (SPF), of varying grades and
dimensions. Abitibi and Petit Paris are not and have never been in the
business of producing trusses. Prior to 1999, neither Abitibi nor Petit
Paris manufactured truss components. However, at the beginning of 1999,
Abitibi began to offer angle cut lumber to its customers.

The merchandise in question is 2 x 4 and 2 x 6 SPF dimension lumber with
an 8 degree angle cut on one end and in standard lengths, specifically
8', 10', 12', 14' and 16'. However, the boards were shipped over length
(approximately 2\"). The 8-degree angle cut is made across the width of
the boards. The lumber is machine stress-rated ("MSR").[^2] The
importers entered the merchandise under subheading 4418.90.4090, HTSUSA,
as other builder's joinery and carpentry of wood.

After conducting a NAFTA verification of the merchandise, Customs issued
Notices of Action (CF 29) advising the importers that the merchandise
would be classified as sawn lumber under subheading 4407.10.0015,
HTSUSA.

The importer submits that the merchandise is correctly classified under
subheading 4418.90.4090, HTSUSA. They further claim that Customs has
issued rulings establishing a treatment and that it is legally improper
to change this classification treatment and *de facto* revoke existing
rulings without proper notice and comment.

Our office met with counsel for the importers on November 16, 1999
(Kirkland & Ellis) and December 1, 2000 (Arnold & Porter) to discuss the
issues in this case.

ISSUE:

Whether dimension lumber with an 8 degree angle cut on one end and in
approximately two inches over standard lengths should be classified in
heading 4407, "Wood sawn or chipped lengthwise, sliced or peeled," as
sawn lumber, or classified in heading 4418, "Builders' joinery and
carpentry of wood" as truss components.

\- 3 -

LAW AND ANALYSIS:

Classification of goods under the HTSUSA 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, 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.

As heading 4407 resides at the beginning of Chapter 44, HTSUSA, 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, HTSUSA, reflects coverage of a relatively more advanced category of
products.

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

Additionally, the Explanatory Notes (EN's) to the Harmonized Commodity
Description and Coding System constitute the official interpretation of
the nomenclature at the international level. The EN's are not legally
binding. However, they do represent the considered views of
classification experts of the Harmonized System Committee. It has
therefore been the practice of the Customs Service to follow, whenever
possible, the terms of the EN's when interpreting the HTSUSA.

In this regard, the EN to heading 4407 HTSUSA, 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).

\- 4 -

Heading 4418 provides for, among other things, builder's joinery and
carpentry of wood. The EN to heading 4418, HTSUSA, 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. . . .

As stated in the long line of cases cited by counsel, Customs must
classify the merchandise in question in its condition as imported. The
question confronting Customs is [not]{.underline} how the angle-cut
boards may be used after importation. The issue is [not]{.underline} one
of actual use pursuant to the HTSUSA, but rather, whether cutting an
angle at one end has changed the identity of the dimension lumber
classified in heading 4407 into builders' carpentry classified in
heading 4418. Thus, Customs task in this case is to determine if the 2 x
4 and 2 x 6 SPF dimension lumber in lengths of approximately 8', 10',
12', 14' and 16' with an 8 degree angle cut on one end are truss
components under heading 4418, in condition as imported.

A truss is defined as: \"An assembly that forms a rigid framework to
support the roof or other part of a building.\" A chord is defined as:
\"The top or bottom member of a truss, to which the web members are
attached.\" A web is defined as: \"A supporting member in a truss; one
that joints the chords, or top and bottom members, together.\" [Terms of
Trade]{.underline}, Random Lengths, Third Edition (1993).

Truss components are designed, measured and cut, that is manufactured,
depending on the specific type of truss required for a specific
building. Moreover, truss components are manufactured according to
specific plans and specifications that take into consideration, among
many factors, the pitch of the roof and load-bearing requirements.
Different roof pitches and different load-bearing requirements will call
for different trusses and, therefore, different truss component
specifications.

\- 5 -

In the normal course of manufactuing a truss, the first step entails the
production of all the truss memebers in the **exact** dimensions and
shape required by the truss design. [The Metal Plate Connected Wood
Truss Handbook]{.underline}, Wood Truss Council of America, Second
Edition, (1997), at G-2, item 2.02, describes manufacturing of trusses
as follows:

> Trusses shall be manufactured in accordance with the final approved
> truss design drawings in properly equipped manufacturing facility of a
> permanent nature. Trusses shall be manufactured by experienced
> workers, using precision cutting, jigging and pressing equipment
> meeting requirements of ANSI/TPI 1-1995, Section 4.

Accordingly, if a board being imported is a component of a truss, the
importer must be able to establish to the satisfaction of Customs that
it was manufactured and, in the condition in which it was imported, was
a constituent member ready to be assembled into a truss.

In their submission counsel cites New York Ruling Letter (NY) B88564,
dated September 9, 1997, NY B81359, dated February 6, 1997, and NY
C82807, dated January 9, 1998, which held that the merchandise described
therein was classified in heading 4418, HTSUSA, as truss components, as
proof that the subject merchandise should be similarly classified.
Counsel also claims that Abitibi modeled its lumber after visiting
production facilities of Donohue Forest Products, Inc. (to whom NY
C82807 was issued).

We do not agree with counsel that the subject merchandise meets the
parameters set forth in the cited rulings or the above definition of a
truss or a truss member. The cited rulings clearly state that the
components were cut to [specific]{.underline} [size]{.underline}, in
other words, the length, thickness and angles were cut and no further
cutting or processing was necessary for assembly into a truss. See also,
NY D81970, dated September 30, 1998; NY D80342, dated September 18,
1998; NY C89668, dated August 17, 1998. In addition, in the cited
rulings the importer submitted samples of the truss components and
drawings of the particular trusses into which they would be assembled.
Therefore, unlike the instant merchandise, the merchandise in the above
referenced rulings was recognizable in its condition as imported as
truss components.

Our findings firmly establish that the imported lumber in question is
not recognizable as truss components in its condition as imported.
Perhaps the most compelling evidence is a statement by counsel in
footnote 6 of the February 24, 2000 submission, stating that "these are
unfinished truss components that need to be cut to length, and perhaps
ripped to width, for the particular truss

\- 6 -

design." Additionally, by counsel's own admission, Abitibi and Petit
Paris are not, and have never been, in the business of producing
trusses, and prior to the entries at issue, neither Abitibi nor Petit
Paris manufactured any "truss components."

Further evidence that the merchandise in question is not recognizable as
truss components in its condition as imported was discovered after
Customs conducted a NAFTA verification of the merchandise. With regard
to one of the entries in question, Abitibi states that it cut each piece
of the MSR dimensional lumber at an 8 degree angle, as ordered by XXXXX
XXXXXXXXXXX. Similarly, Petit Paris cut each piece of MSR dimensional
lumber at an 8-degree angle as ordered by XXXXXX XXXXXX XXXXX, Inc.
Purchase orders from both of these companies list "angle cut" lumber
without specifying the degree of the cut. Counsel claims that Abitibi
had previously advised its customers that Petit Paris could provide 8
degree cuts, so the "angle cut" order meant 2 x 4s with an 8 degree
angle cut at one end. Our findings are not consistent with this claim.

Following the NAFTA verification, Customs issued a CF-29 to Abitibi on
August 16, 1999, stating:

> \[T\]he lumber was sold to an intermediate buyer, XXXXXXXX
> XXXXXXXXXXXXX and shipped to their customer XXXX XXXXXXXXXXX, a truss
> manufacturing company located in XXXXXX XXXXXXXX, MA.
>
> XXXX XXXXXXXXXXX, when contacted by this office, indicated that the
> 8-degree angle cut lumber is not utilized in trusses manufactured by
> them without being recut. All lumber in this shipment must be recut
> with the proper angle for manufacturing a given size truss, in this
> case for a 5/12 truss the necessary angle would be 22 ½ degrees.
>
> \* \* \* \* \*

On another entry in question, Customs issued a CF-29 to Petit Paris on
August 16, 1999, stating:

> \[T\]he lumber was sold to a lumber wholesaler, XXXXXX XXXXXX XXXXX
> and shipped to Quaboag Transfer a rail transfer yard in Barrett, MA.
> The lumber was then shipped to XXXXXX XXXXXX's customer who was not
> identified on the entry summary.
>
> \- 7 -
>
> The buyer/salesman for XXXXXX XXXXXX, Mr. XX XXXX), when interviewed
> by telephone, indicated that their customers do not order angle cut
> lumber. The angle cut indicated on the purchase order was put there so
> that they would receive a price reduction.

\* \* \* \* \* \*

We note counsel's reference to [Heartland By-Products, Inc. v. United
States]{.underline},

74 F. Supp. 2d 1324 (Ct. Int\'l Trade 1999**),** and we are aware of the
precedent that an importer has the right to fashion merchandise to
obtain the lowest rate of duty or to avoid quota restrictions, provided
no deceit is practiced, goods are truly invoiced and freely and honestly
exposed to Customs for their examination. [Id]{.underline}.

With that in mind, we agree with counsel that trusses can be any shape
or size and thus the parts of a truss, the chords and webs, vary in
length and the angles of the ends. Moreover, we do not hold issue with
the fact that lumber may be significantly processed into merchandise
classifiable in heading 4418, HTSUSA, a provision which provides for
products of "joinery and carpentry", resulting in acceptable "tariff
engineering." However, that being said, this is not the case with the
subject merchandise.

As stated previously, trusses and truss components are not designed by
the lumber mill but manufactured according to the truss manufacturer's
specifications. [The Metal Plate Connected Wood Truss
Handbook]{.underline}, Wood Truss Council of America, Second Edition,
(1997), at G-2, item 2.02, describes manufacturing of truss members as
follows:

> Truss members shall be accurately cut to length, angle and true to
> line to assure proper fitting joints within tolerances set forth in
> ANSI/TPI 1-1995, Section 4.

We have reviewed the Declaration and Supplemental Declaration of XXXX,X.
XXXXXXXX, XX, submitted by counsel to establish that dimension lumber
cut at an 8-degree angle is recognizable as a truss component. Mr.
XXXXXXXX is a professional engineer with 20 years of experience in the
manufacture and design of wood trusses.

Mr. XXXXXXXX goes into great detail regarding the different truss
designs and the variety of shapes, slopes and angles of the various
components. He also attached truss designs created at the request of the
importer, after the importation of the merchandise. These designs are
deep parallel chord trusses with an 8 degree slope and made with 2 x 4s
and 2 x 6s in a flat chord configuration requiring web members in a
range of 7 to 16 feet in length, turned sideways to span the width of
the top chords, with an 8-degree angle cut on one

-8-

end. He states that such web members are completely finished except that
some must be trimmed to fit the shallower end of the truss. The same web
members are well suited for use in a parallel chord bowstring truss in
flat chord configurations, again with only minor trimming of some of the
members on the square ends.

Mr. XXXXXXXX concludes by stating that it is the tell-tale angle cut on
the end, plus the length and the exceptionally high grade of the lumber
which would make it recognizable to him as roof truss web members and
clearly distinguishable from square-cut stud grade framing lumber.

We note that when we spoke to Mr. XXXXXXXX about his declarations he
also stated that 2 x 4 or 2 x 6 lumber in standard lengths with square
cut ends also "could be" truss components if they are destined to go to
a truss manufacturer. In other words, a truss could be designed to
accommodate such boards. However, Customs does not look at hypothetical
situations to classify merchandise; merchandise is classified based on
what it is at the time of importation. The fact that Mr. XXXXXXXX was
able to design hypothetical trusses, at counsel's request
[after]{.underline} the merchandise was imported and its classification
challenged by Customs, is not within the spirit of tariff engineering
contemplated by [Heartland]{.underline} and the cases cited therein. If
that were the case, all dimension lumber of heading 4407 could be
considered truss members in that an engineer could design a hypothetical
truss using **any** piece of dimension lumber. Clearly, truss members
are precise components, which are born from a final approved truss
design drawing and not manufactured in the **hope** that someone can use
them.

We also note that the difference between [Heartland]{.underline} and the
cases cited therein and the instant case is in the fact that the
merchandise in the [Heartland]{.underline} cases were in intermediate
phases of processing in their condition as imported but nevertheless met
the terms of a particular tariff provision in that condition, i.e., the
plain language of the tariff provision described the imported product.
The courts are clear that goods may be imported at various stages of
manufacturing or processing even if at an artificially interrupted
point, to obtain lower rates of duty.

\- 9 -

As further support that the boards in question are not truss components,
in condition as imported, we refer to another case cited by counsel,
[Worthington v. Robbins]{.underline}, 139 U.S. 337 (1891), concerning
the classification of white hard enamel in which the court stated:

> The article in question was, to all intents and purposes, raw
> material. If it were to be classed as \'watch materials,\' it would
> follow that any metal which could ultimately be used, and was
> ultimately used, in the manufacture of a watch, but could be used for
> other purposes also, would
>
> be dutiable as \'watch materials.\' In order to be \'watch
> materials,\' the article must in itself bear marks of its special
> adaptation for use in making watches. The fact that the article in
> question was used in the manufacture of watches has no relation to the
> condition of the article as imported, but to what afterwards the
> importer did with it.

In the instant case, there is nothing about the dimension lumber in its
condition as imported which \"bears marks of its special adaptation\" or
makes it a recognizable part of an unassembled roof truss. The
merchandise was bought and treated as material lumber, i.e., square cut
dimension lumber of standard lengths. The merchandise either requires
further processing or the angle will be cut off entirely.

Accordingly, we find that the importer has failed to provide Customs
with the information necessary to recognize the boards as members of a
truss. The importer's inability to establish that the boards being
imported with angle-cuts were, in fact, components of trusses at the
time of importation results in the classification of the boards in
heading 4407, HTSUSA, as general sawn lumber.

HOLDING:

The subject angle cut lumber is classified in subheading 4407.10.0015,
HTSUSA, which provides for wood sawn or chipped lengthwise, sliced or
peeled, whether or not planed, sanded or finger-jointed, of a thickness
exceeding 6mm: coniferous: other: not treated: mixtures of spruce, pine
and fir ("S-P-F"). The applicable general column one rate of duty is
"Free".

Articles classifiable under subheading 4407.10.0015, HTSUSA, which are
products of Canada, are subject to entry requirements based on the
U.S.-Canada Softwood Lumber Agreement of 1996. All invoices of such
articles must be annotated with the Canadian province of manufacture. If
manufactured in Ontario, Quebec, British Columbia or Alberta, a permit
is required.

\- 10 -

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 connection with the ruling request and
incorporated therein, 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.

Sincerely,

John Durant, Director

Commercial Rulings Division

[^1]: Customs uses the term \"truss component\" and \"truss member\"
    interchangeably.

[^2]: Machine stress-related lumber is dimension lumber that has been
    evaluated by mechanical stress-rating equipment which measures the
    stiffness of the material and sorts it into various modulus of
    elasticity classes.