# HQ 964202

October 25, 2000

CLA-2 RR:CR:TE 964202 jsj

CATEGORY: Classification

TARIFF NO.: 4407.10.0068

Ms. Cherry Sherwin

Export Services, Inc.

16023 Snake River Road

Asotin, Washington 99402

Re: Request for Reconsideration of HQ 085187; Western Red Cedar "short
boards"; Subheadings 4407.10.0068 and 4418.50.0010; General Rule of
Interpretation 2 (a); Unfinished shingles.

Dear Ms. Sherwin:

The purpose of this correspondence is to respond to your request of
April 13, 2000, directed to the New York office of the U.S. Customs
Service. The correspondence in issue requested, on the behalf of your
client Shakertown 1992, Inc., reconsideration of Headquarters Ruling
Letter 085187 issued on September 6, 1989 to Shakertown Corporation, the
predecessor of your client.

This reconsideration is being issued subsequent to the following: (1) A
review of correspondence from you dated April 13, 2000 and July 25,
2000; (2) A review of correspondence from Mr. Brian C. Gabbard,
Operations Manager, Shakertown 1992, Inc. dated July 25, 2000; (3) A
telephone conversation with you conducted on June 23, 2000; and (4) An
examination of samples which accompanied your correspondence of April
13, 2000 and Mr. Gabbard's correspondence of July 25, 2000.

FACTS

The article in issue has been identified as Western Red Cedar "short
boards." The correspondence sent to the New York office of the Customs
Service in April of 2000 indicated that the "short boards" under
reconsideration measured nine (9) inches to twenty-four (24) inches in
length, five-eighths (5/8) of an inch to one and one-fourth (1 1/4)
inches thick and would be imported in random widths. The two samples
provided with that correspondence had the following measurements: Sample
One -- eighteen and six-eighths (18 6/8) inches in length, five and
five-eighths (5 5/8) inches wide and five-eighths (5/8) of an inch
thick; Sample Two - eighteen and six-eighths (18 6/8) inches in length,
seven and one-eighth (7 1/8) inches wide and six-eighths (6/8) of an
inch thick.

Mr. Gabbard's correspondence of July of 2000 provided a step-by-step
description of the manufacturing process of "cedar shingle sidewall
panels" and "rebutted and rejointed shingles." A set of twelve samples
accompanied Mr. Gabbard's correspondence exhibiting each step in the
manufacturing process of the two final products. Eight of the samples
reflected the different steps in the manufacture of "cedar shingle
sidewall panels" and four of the samples reflected the manufacture of
"rebutted and rejointed shingles."

The manufacture of "cedar shingle sidewall panels," as described by Mr.
Gabbard, included the following seven steps:

1.  Start with a green \# 1 18" Board.

2.  Dry the board down to a moisture content of less than ten percent.

3.  Put a grove in the side of the board and trim the edges.

4.  Sand both the top and bottom of the board.

5.  Cut the 18" Sanded Grooved board into two nine inch pieces.

6.  Glue plywood to the top and bottom of the cedar board.

7.  Rip this piece down the middle to produce a cedar shingle panel.

The sample identified by Mr. Gabbard as a "green #1 18" Board", the
board with which the production process begins, measured eighteen and
one-fourth (18 1/4) inches in length, approximately six (6) to six and
one-fourth (6 1/4) inches wide and five-eighths (5/8) of an inch thick.
The width varied because the board was rough. The board was not
precisely cut and reflected a board in the early stage of the production
process.

The sample reflecting the finished "cedar shingle sidewall panels"
encompasses four separate pieces of wood glued together, only three of
which are Western Red Cedar. The fourth piece is a one-fourth (1/4) of
an inch thick plywood backing onto which the three separate pieces of
Western Red Cedar are glued. The Western Red Cedar boards, glued onto
the plywood side-to-side, measure eight and one-fourth (8 1/4) inches
from top to bottom and a total of eight and seven-eighths (8 7/8) inches
in width, with two approximately one-eighth (1/8) inch to one-fourth
(1/4) inch wide grooves. The grooves run from the top of the siding
panel to the bottom and were cut on the ends of the cedar boards. The
individual cedar boards are one-fourth (1/4) of an inch thick.

The manufacture of "rebutted and rejointed shingles," as describe by Mr.
Gabbard, included the following four steps:

1.  Start with a green \# 1 18" Perfection shingle.

2.  Dry the #1 18" Perfection shingle down to a moisture content of less
    than ten percent.

3.  Trim the edges, butt and tip of the dry #1 18" Perfection Shingle.

4.  Sand the top of the #1 18" Perfection Shingle, producing a #1 18"
    Sanded rebutted and Rejointed Shingle.

Mr. Grabbard's description of the production process does not note
sawing the boards diagonally. An examination of the finished shingle,
however, evidences a tapered board.

The board with which the production process of the "rebutted and
rejointed shingles" begins is the same board used in the production of
the "cedar shingle sidewall panels." The finished "rebutted and
rejointed shingle" sample measures seventeen and one-fourth (17 1/4)
inches in length and five and seven-eighths (5 7/8) inches to six (6)
inches wide. The shingle is three-eighths (3/8) of an inch thick at the
top and smoothly tapered to approximately one-sixteenth (1/16) of an
inch thick at the bottom.

ISSUES

Are the articles in issue, identified as Western Red Cedar "short
boards", unfinished shingles pursuant to General Rule of Interpretation
2 (a) necessitating modification or revocation of HQ Ruling Letter
085187 ?

LAW AND ANALYSIS

The United States Customs Service issued Headquarters Ruling Letter
082694 to Anglo-American Cedar Products Ltd. (Anglo-American) on April
11, 1989. The Customs Service in HQ 082694 classified Western Red Cedar
boards in subheading 4418.50.0040[^1] of the Harmonized Tariff Schedule
of the United States (HTSUS). The articles in issue in HQ 082694 were
described as Western Red Cedar "short boards" eighteen to twenty-four
inches long with random widths and having a thickness between
five-eighths of an inch and one and one-fourth inches.

The Customs Service on September 6, 1989 issued Headquarters Ruling
Letter 085187 to Shakertown Corporation. Headquarters Ruling Letter
085187 classified the Western Red Cedar boards in issue pursuant
subheading 4407.10.0060[^2] HTSUS. The articles submitted to the Customs
Service for classification in HQ 085187 were described as rough Western
Red Cedar boards eighteen inches long with random widths and sawn on
both sides. The samples were seventeen and one-half and eighteen inches
long, respectively, and eleven-sixteenths of an inch thick.

Shakertown 1992, Inc., the successor company to Shakertown Corporation,
requested this reconsideration. It is the position of Shakertown 1992
that the articles submitted with its request for reconsideration and the
articles classified in both HQ Rulings 082694 and 085187 are identical.
The requestor further maintains that the Customs Service correctly
classified the Anglo-American articles in HQ 082694 pursuant to HTSUS
subheading 4418.50.0040 and requests that its merchandise be similarly
classified as unfinished shingles.

The principal HTSUS subheadings considered by the Customs Service in
rendering this reconsideration were: (1) 4407.10.0068; and (2)
4418.50.0010. Subheading 4407.10.0068 provides:

4407. Wood sawn or chipped lengthwise, sliced or peeled, whether or not
      planed, sanded or finger-jointed, of a thickness exceeding 6mm:

> 4407.10.00 Coniferous
>
> 4407.10.0068 Other:
>
> Not treated:
>
> Other:
>
> Western red cedar:
>
> Rough[^3].

Subheading 4418.50.0010 provides:

4418. Builders' joinery and carpentry of wood, including cellular wood
      panels and assembled parquet panels; shingles and shakes:

      0.  Shingles and shakes

> 4418.50.0010 Shingles:
>
> Of western red cedar.

The classification of imported merchandise pursuant to the Harmonized
Tariff Schedule of the United States (HTSUS) is governed by the General
Rules of Interpretation. GRI 1 provides that classification decisions
are to be "determined according to the terms of the headings and any
relative section or chapter notes." GRI 1 further provides that
merchandise which can not be classified in accordance with the dictates
of GRI 1 should be classified pursuant to the other General Rules of
Interpretation in their sequential order.

It is the conclusion of the Customs Service that the Western Red Cedar
"short boards" in issue are properly classified pursuant to GRI 1. The
"short boards" literally satisfy the dictates of heading 4407 because
they are "\[w\]ood sawn or chipped lengthwise ...of a thickness
exceeding 6 mm."

Heading 4407 was drafted to be a broad provision for the classification
of material. The Explanatory Notes (EN) of the Harmonized Commodity
Description and Coding System lend support to this proposition. The
Explanatory Notes represent the official interpretation of the HTSUS at
the international level. Although the EN's are not law in the United
States and the Customs Service is not, therefore, legally obligated to
follow them, they are valued as an interpretative aid. *See* T.D. 89-80,
54 Fed. Reg. 35127-28 (Aug. 23, 1989).

The breadth of heading 4407 is evidenced from a reading of EN 44.07. The
Explanatory Notes to Chapter 44 of the HTSUS provide that heading 4407
encompasses, "with few exceptions...all wood and timber, of any length
but of a thickness exceeding 6mm, sawn or chipped along the general
direction of the grain or cut by slicing or peeling." The EN further
states the "\[s\]uch wood and timber includes *sawn* beams, planks,
flitches, *boards*, laths, ect." (Emphasis added.).

Shakertown 1992 maintains in its request for reconsideration of HQ
085187 that the "short boards" in issue are properly classified in HTSUS
subheading 4418.10.0068. The requestor, relying on the reasoning in the
Anglo-American Ruling, HQ 082694, suggests that the "short boards" are
"incomplete or unfinished" shingles pursuant to GRI 2(a).

General Rule of Interpretation 2 (a) provides that any reference in a
HTSUS heading to an article "shall be taken to include a reference to
that article incomplete or unfinished." GRI 2 (a) requires, however,
that the incomplete or unfinished article have the "essential character"
of the complete or finished article.

The General Rules of Interpretation do not define the phrase "essential
character", however, its meaning may be understood from an examination
of the Explanatory Notes to GRI 2(a). The EN's to GRI 2 (a) draw a
distinction between a "blank" which possesses the essential character of
an article and a "semi-manufacture\[d\]" item that does not have the
essential character of an article.

A "blank," as defined in the EN, is an article "not ready for direct
use, having the approximate shape or outline of the finished article or
part." The EN continues stating that a "blank" is an article "which can
only be used, other than in exceptional cases, for completion into the
finished article or part." A plastic bottle preform is offered in the EN
as an example of a blank. Bottle preforms of plastic are "intermediate
products having tubular shape, with one closed end and one open end
threaded to secure a screw type closure, the portion below the threaded
end being intended to be expanded to a desired size and shape."

"Semi-manufactures" are items that do not yet have the essential shape
or character of the finished articles. Examples of semi-manufactures set
forth in the EN's are: "bars, discs, tubes, etc." Semi-manufactures are
specifically not regarded as "blanks."

An examination of the instant Western Red Cedar boards or "short
boards," in the condition in which they will be imported, reveals
semi-manufactured items rather than blanks. The boards do not have the
essential character of shingles. The adjective "short," it should be
noted, is an industry term that simply refers to lengths of sawn timber,
generally less than six feet long.

A shingle, as defined in the EN's to heading 4418, is "wood sawn
lengthwise which is generally thicker than 5mm at one end (the butt) but
thinner than 5mm at the other end (the tip). It may have its edges
resawn to be 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."

The boards that were the subject of HQ 085187 issued to Shakertown
Corporation in 1989 and the samples provided to the Customs Service by
Shakertown 1992 have not been sufficiently processed beyond the stage of
material lumber. They are rectangular lumber boards sawn to size. They
are not tapered from end to end, nor are they in a condition in which
they may be deemed dedicated to use only as shingles. They do not have
the approximate shape or outline of a shingle and are more closely
analogous to the examples of semi-manufactured items in the EN's than to
the plastic bottle preform identified as the example of a blank. The
boards or "short boards" in issue are plain sawn wood suitable for
multiple uses and not recognizable as one particular article of
commerce. *See generally*, *Ludvig Svensson (US) v. United States*, 62
F. Supp. 2d 1171 (C.I.T. 1999); *Doherty-Barrow of Texas, Inc. v. United
States*, 3 C.I.T. 228 (1982); and *American Import Co. v. United
States*, 26 C.C.P.A. 72 (1938).

The Customs Service, as previously indicated in this Ruling Letter, is
aware of HQ 082694 issued on April 11, 1989 which classified merchandise
substantially similar to the instant merchandise pursuant to HTSUS
subheading 4418.50.0040. Headquarters Ruling Letter 082694 is currently
being reviewed for revocation. Attached is a copy of the notice of
proposed revocation.

The Customs Service is also apprised of HQ Ruling Letter 083795 issued
on May 26, 1989. HQ 083795 classified Red Cedar "short boards" in HTSUS
subheading 4418.50.0040 as unfinished shakes and shingles. It is
specifically noted that the articles in issue in that ruling letter, in
the condition as imported, possessed the approximate shape or outline of
a shingle. The sample was a tapered board measuring eighteen and
one-fourth inches in length and ten and eleven-sixteenth inches in
width. The tip of the board measured nine-thirty-seconds of an inch (7
mm) and the bottom or butt measured seven-eighths of an inch (22mm).
Accordingly, it is distinguishable from HQ 082694.

HOLDING

Headquarters Ruling Letter 085187 has been reconsidered and it is the
conclusion of the Customs Service that the merchandise was correctly
classified.

The Western Red Cedar boards or "short boards" in issue in both HQ
085187 and submitted by Shakertown 1992, Inc. with its request for
reconsideration are classified in subheading 4407.10.0068 HTSUS.

The general column one duty rate is Free.

Sincerely,

John Durant, Director

Commercial Rulings Division

[^1]: The statistical suffix has changed since 1989. HTSUS subheading
    4418.50.0040 as it appeared in 1989 is currently 4418.50.0010.

[^2]: The statistical suffix has changed since 1989. HTSUS subheading
    4407.10.0060 as it appeared in 1989 is currently 4407.10.0068.

[^3]: The term "rough" is defined in Statistical Note 1 to Chapter 44
    HTSUS to include "wood that has been edged, resawn, crosscut or
    trimmed to smaller sizes." The Note continues that the term "rough"
    does not include wood that has been dressed or surfaced by planing
    on one or more edges or faces or has been edge-glued or end-glued."