NY F87691

June 19, 2000

CLA-2-44:RR:NC:SP:230 F87691

CATEGORY: Classification

TARIFF NO.: 4407.10.0069

Mr. Dale Forsberg

Porcupine Wood Products Ltd.

P.O. Box 850

Salmo, BC V0G 1Z0

CANADA

RE: The tariff classification of wooden fence pickets from Canada.

Dear Mr. Forsberg:

In your letter dated May 15, 2000 you requested a tariff classification
ruling.

The items in question are 96"-long Western Red Cedar boards that have
been rougher-headed to a cross section measuring 25/32" thick by 3-9/16"
wide (1x4 nominal size). One end of each board will be square cut, while
the other will be dog-eared (meaning that a piece of wood in the shape
of an isosceles right-angle triangle will be cut off each corner). You
state that the size of the triangular pieces cut off to form the
dog-eared ends can vary from ¾" x ¾" to 1" x 1".

An end-use certificate from your customer states that the
above-described boards will be used in the manufacture of prefabricated
fence panels, and that the dog-eared ends will not be cut off prior to
such use. You therefore suggest that the boards are classifiable in HTS
subheading 4421.90.7040, HTS, which provides for other articles of wood:
pickets, palings, posts and rails, the foregoing which are sawn.

However, the applicability of the above subheading depends on the
principal use in the United States of goods of the class or kind to
which the imported merchandise belongs. Additional U.S. Rule of
Interpretation 1(a), HTS, reads as follows:

a tariff classification controlled by use (other than actual use) is to
be

determined in accordance with the use in the United States at, or

immediately prior to, the date of importation, of goods of that class

or kind to which the imported goods belong, and the controlling use

is the principal use.

As you have noted, Customs has previously classified similar dog-eared
boards, when imported in lengths of 6 feet or less, as pickets in
subheading 4421.90.7040. The instant boards, however, are 8 feet long,
and while they may in fact be used for their stated purpose, we have
nevertheless been unable to substantiate a conclusion that dog-eared
boards of this length are **principally** used as **fence** pickets in
the United States.

Accordingly, the applicable subheading for the 25/32" x 3-9/16" x 96"
dog-eared boards will be 4407.10.0069, Harmonized Tariff Schedule of the
United States (HTS), 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...not finger jointed...not treated:
western red cedar: other. The rate of duty will be free.

Articles classifiable in subheading 4407.10.0069, HTS, which are
products of Canada are subject to entry requirements based on the
U.S./Canadian 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.

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.

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 212-637-7009.

Sincerely,

Robert B. Swierupski

Director,

National Commodity Specialist Division