SLIP OP. 07-56 UNITED STATES COURT OF INTERNATIONAL TRADE

: MIL LENI UM LUMBER DI STRIBUTI ON LTD., : : Plaintiff, : : v. : : Before: Jane A. Res tani, Chief Judge : UNI TED STATE S, : Court No. 02-00595 : Defend ant. :

:

OPINI ON [Plaintiff’s motion for summary judgment denied. De fendant’s cross-motion for summary judgment granted.] Dated: April 16, 2007

Joel R. Junker & Associates ( Joel R. Junker ) for the plaintiff. Peter D. Keisler , Assistan t Attorne y G eneral ; Barba

ra S. Willia

ms , Attorney-inCharge , Inte

rnationa l Trade F ield Off

ice, Comme

rcial L itigation Branc

h, Civil Division, U .S. Department of Justice ( Jack S. Rockafellow and Aimee Lee ), Chi S. Choy , Office of Assistant Chief Coun sel, I

nternat ional Tra de Li tigation , Burea

u of Customs

and Bor der Prote ction, U. S. Department of Ho meland Se curity, Of Counse l, for the defenda nt. Restani, Chief Judge: This matter is before the court on cross-motions for summary judgme

nt by plaintiff Millenium L umber Distribution, Ltd. (“Millenium”), and defendant United States (“Government”) pursua nt to USCIT R. 56. Millenium challenges the classification for tariff purposes of its imported merchandise. The United States Bureau of Customs and Border Protection (“Customs”), formerly the United States Customs Service, classified the merchandise as standard lumber under Harmonized Tariff Schedule of the UnitedCourt No. 02-00595 Page 2

1 The rele vant port ion of the HTSUS Chap ter 44 re ads as fo llows: 4407 Wood sawn or chipped lengthwise, sliced or peeled, whe ther or not planed, s anded or

finger -jointed, of a thickness exce eding 6mm; 4407.10.00 Conifero

us

. . . Other:

. . . [4407.10.00]15 Not trea ted: Mixtures of spruce, pine, and fir (“S-P-F”). It should be noted that the numbering of relevant subheadings varies in subsequent versions of the HTSUS, but will be cited here as used by the parties, and as listed when this dispute arose.

2 The rele vant port ion of the HTSUS Chap ter 44 re ads as fo llows: 4418 Builders’ joiner

y a nd carpe ntry of wood, i

ncluding cellular wood pane ls and asse mbled par

quet pane ls; shing les and shakes:

. . . 4418.90 Other:

. . . 4418.90.40 Other

. . . [4418.90.40]20 Roof trusses.

. . . [4418.90.40]90 Other.

3 The rele vant port ion of the HTSUS Chap ter 44 re ads as fo llows: 4421 Other articles of wood:

. . . 4421.90 Other. States (2000) (“HTSUS”) subheading 4407.10.00. 1 Millenium asserts that the proper classification is under subheading 4418.90.40, 2 i.e., roof trusses, or alternatively under 4421.90, 3 i.e., other articles of wood.Court No. 02-00595 Page 3

BACKGROUND Millenium is an importer of wood products from Canada, including the subject mercha ndise, wh ich it iden tifies as cut lumbe

r or “tru ss compone

nts” inten ded for u se in completed wood trusses. ( Compl. ¶¶ 1 1–14; Pl.’s Mot. for Summ. J., Attach. 1, Ex. C.) The parties a gree t hat the su bject mer chandise is compris ed of 2 x 3, 2x 4, and 2 x 6 spr uce/pine /fir (S-P-F) lumber, of various grades, c ut to lengths of 5', 6', 7', 8' , 10', 12', 14', 16', 18' , and 20'. ( Compl. ¶¶ 1 1–14; Answer ¶ 11.) One end of ea ch piece of lumber

is “squar e cut,” a t 90 deg rees, and the other end is “angle cut,” a t angles between 67.4 degr ees and 80.5 degrees. ( Compl. ¶¶ 10, 12; Answer ¶¶ 10, 12.)

According to Millenium, this lumber was intended for use in wood trusses manufactured in the United States, (Compl. ¶ 11), which are installed to form a tr iangular framework used in the support of rooftops and floors. See Webster’s Third New Inter national Dictionary

2456 (1981). The parties agree that completed wood trusses, either assembled or unassembled, would be classified under HTSUS subheading 4418.90.40. The pa rties disagree, however, as to whether the subject mercha ndise constitutes complete and/or unassembled wood
trusses c lassifia

ble under subhead ing 4418 .90.40, or

lumber, w

hich req uires fu rther pr ocessing to be suitable for assembly

into a truss and is therefore properly classified under subheading 4407.10.00. ( Compl. ¶¶ 1 8–22; Answer ¶¶ 18–22.)

Between October 1999 and January 2001, Millenium imported approximately 215 entries of the subject merchandise under HTSUS subheading 4418.90.40 through the port of entry in Bla

ine, Washington. ( See Summons.) On December 28, 2000, Millenium received fromCourt No. 02-00595 Page 4

4 The Government disputes the court’s jurisdiction over Entry No. 144-7025313-0, because the entry

was liquidated under subheading 4418.90.40. See Entry Summ. No. 144- 7025313-0. Because this single entry was liquidated under the subheading requested by Millenium, no relief can be granted as to the entr y. The cur

rent dispute as to Entry No. 144- 7025313-0 is therefore moot.

5 Following submission of the briefs on the parties’ Motion and Cross-Motion for Summary Judgment, Millenium moved to strike evidence submitted in support of the Government’s position, including that found in various websites cited in the Government’s brief , on the grounds that these materials constituted unauthenticated hea rsay. B ecause the court was not required to and did not consider any of the challenged materials in determining the proper classifi cation of

the subje ct merchandise, t he court need not r

esolve th e issues r

aised in Millenium’s Motion to Strike. The motion therefore will be denied as moot. Customs a Notice of Action stating that “[t]he subject angle-cut lumber in condition as imported is not a truss component ready to be assembled into a specific truss,” and was theref ore classifiable under HTSUS subheading 4407.10.00. ( Compl. ¶ 15. ) Customs su bsequen tly liquidated the various entries under subheading 4407.10.00 on April 20, 2001, May 4, 2001, May 11, 2001, and August 17, 2001. ( See Summons.)

Millenium timely filed protest numbers 3004-01-100052 on July 18, 2001, and 3004-01-100070 on August 29, 2001. 4 ( Id. at 1.) Millenium’s protests sought review of Customs’ classification, arguing that the merchandise should be properly c lassified as roof trusses under subheading 4418.90.40, or alternatively under subheading 4421.90, as other articles of wood. ( Id. at 2.) The

protests were dee

med denie d on April 8 , 2002, an d Millenium

timely commenced the present action. ( Id. ) Both pa rties the n moved for summary

judgmen t pursuan t to USCIT R. 56. 5

JURISDIC TION AND STA NDARD OF

REVIEW The court has jurisdiction pursuant to 28 U.S.C. § 1581(a) (2000) (protest denialCourt No. 02-00595 Page 5

6 Millenium also claimed in its Complaint that Customs’ classification and liquidation of the en tries under headi ng 4407 had “t he effe ct of m odifying o r revok ing pri or int erpret ive ru lings . . . . [without] the process of publication, opportunity for final comment, and fina l notice.” (Compl. ¶¶ 30–32.) Millenium has abandoned this claim by not de veloping it for purposes of summary judgme

nt. jurisdiction). The proper construction of a tariff provision is an issue of law. Carl Zeiss, Inc. v. United States , 195 F.3d

1375, 1378 (Fed. Ci

r. 1999). Determi

nation of the natur e of a g ood in order to place it in the proper tariff cate gory is an issue of fact. Id. Both determinations are made de novo

. Metchem, Inc. v. United States , 441 F. Supp. 2d 1269, 1271 (CIT 2006).

DISCUSSION The issue before the court is the correct tariff classification of angle-cut lumber that, as imported, does not constitute assembled or fabricated articles a nd that is unidentifiable as pieces of any

particular wood truss or trusses. Customs refused to classify the subject merchandise as builders’ joinery or carpentry

of wood under HTSUS heading 4418, treating it as general sawn lumber under he ading 4407. Millenium challenges the classification on the grounds that the merchandise was specific ally cut and intended f or use in wood trusses and should therefore be classified under hea ding 4418. 6 In the alternative, Millenium contends that the angle cut lumber constitutes “wooden parts of the [prec eding] articles” classifiable as “other” under heading 4421.

To determine the proper classification of imported g oods, the court follows the General Rules of Inter

pretation (“GRIs”) of

the HTSUS. Orlando Food Corp. v. United States , 140 F.3d 1437, 1439 (Fed. Cir. 1998). The GRI s set forth the order in which the elements of classification are considered. Pillowtex Corp. v. United States , 171 F.3d 1370, 1374 (Fed. Cir.Court No. 02-00595 Page 6

7 It is c lear tha

t the hea dings at issue in thi s case a

re mutua lly e xclusive. I

tems clas sifiable as builders’ carpentry

or joinery under

heading 4418 are excluded from classifica tion as general sawn lumber under heading 4407. Explanatory Note 44.07 (“The heading also excludes . . . [b ]u il de rs ’ j oi ne ry a nd ca rp en tr y ( heading 44.18 ).”). Sim ilarly, heading

44.21 cov ers items

“ other than

those specified or included in the preceding he adings and other than articles of a kind classified elsewhere.” Id. at 44.21. Therefore, the decision here must be made under GRI 1. If viewed as a GRI 3 spec ificity inquiry, here the result would be the same. Contrast BASF Corp. v. United States , ___ F.3d ___, 2007 WL

949717 (F ed. Cir. Ma

r. 29, 200 7) (major

ity a naly sis under GRI 3 reac

hed differing outcome from dissent in part under GRI 1).

8 “Although the Explanatory Notes are not legally

binding or dispositive, they may be consulted for guidance and are generally indicative of the proper interpretation of the various HTSUS provisions.” N. Am. Processing Co. v. United States , 236 F.3d 695, 698 (Fed. Cir. 2001). 1999). Under GRI 1, the cour t must determine the appropriate classification “accor ding to the terms of t he head ings and any relative section or chapte

r notes,” and may refer to subsequ

ent GRI provisions only where the he adings and notes “do not otherwise require” a particular classifi cation. I

n so doing , the ter

ms of the H TSUS must be construe d “acco

rding to their common and commercial meanings.” Len-Ron Mfg. Co. v. United States , 334 F.3d 1304, 1309 (Fed. Cir. 2003). Therefore, in this case, the court must consider whether the subject merchandise is classifiable under HTSUS heading 4407, 4418, or 4421. 7 A. The Subject Merchandise is Classifiable Under Heading 4407 Heading 4407 covers “[w]ood sawn or chipped leng thwise, sliced or peeled, whether or not planed, sanded or finge r-jointed, of a thickness exceeding 6 mm.” This heading serves as a general c ategory , which “[w]ith few exceptions . . . covers all wood and timber.” World Customs Organization, Harmonized Commodity Description & Coding Sy stem Explanatory Notes , Explanatory Note 44.07, 676 (2d ed. 1996) (“Explanatory Note( s)”). 8 The heading includes products such as “sawn be ams, planks, flitches, boards, laths, etc.,” and theCourt No. 02-00595 Page 7

wood “need not necessarily be of rectangular (including square) section nor of uniform section along the length.” Id. Here, the parties agre e that the subject merchandise was comprised of cut lumber, of various lengths and grade s. ( Compl. ¶ 11; Answer ¶ 11.) The parties also do not dispute that the merchandise was unassembled upon entry , and that each board was of the appropriate thickness for classification under 4407, excee ding 6 mm. For these reasons, the imported merchandise at issue is described by the terms of heading 4407. Therefore , the court next considers whether the merchandise is also described by the terms of heading 4418 and therefore is excluded from 4407, and finally , whether it is described by the terms of heading 4421. B. The Subject Merchandise is Not Classifiable Under Heading 4418

Millenium a

rgues t hat 4407 w as incor

rectly applied b ecause

the merc handise m

ust be classified under heading 4418, and is there fore not within 4407. Heading 4418 covers “[b]uilders’ joinery and car pentry of wood.”

Explanatory Note 44.18 states that “[heading 4418] 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 rec ognisable unassembled pieces. ” “Carp entry

” of wood is define d as “woo dwork (s uch as be ams, raf

ters and roof stru ts) used for structural purposes or in scaffoldings, a rch supports, etc.” Id. Millenium asserts that the imported boards constitute wood trusses or unassembled pieces of wood trusses based on the fact that each board contained an ang le cut at one end, and on its c laim that the merchandise w as speci fically cut and in

tended f or use in trusses. ( See Compl. ¶ 11.) This is not enough to satisfy the re quirements for classificationCourt No. 02-00595 Page 8

9 It is clear that the merc

handise at issue is not joinery. under he ading 4 418. Altho ugh 4418 is not limite d to assem bled go ods and inc ludes re latively advanced recognizable unassembled pie ces, they must be c arpentry , or joinery, i.e., “ prepared with tenons, mortises, dovetails or other similar joints for assembly.” 9 Explanatory Note 44.18. This head ing doe s not inclu

de a subh eading

for basi c or rel atively

unproce ssed par

ts. In order to be classifiable under heading 4418, there fore, the merchandise as imported must constitute either identifiable truss pieces ready for assembly, in other w

ords, “carpentry

of wood” according to the terms of 4418. The parties have not focused on definitions of carpe ntry but have re lied on the law regar ding pa rts of pro ducts, he

re, of w ood roof t

russes. A s indicate d, 4418 doe s not cove r parts per se. But if Millenium cannot satisfy the tests for classification as parts, in view of the ty pe of product at issue here, it will not be able to demonstrate that this product is carpentry . The product is either so unidentifiable as something other than lumber that it must be classified as lumber, or it is something mor e, i.e. c arpentr

y. If it is rec ognizabl e as a component of a truss, it will have passed an important step for classification under 4418. I f it cannot reach that hurdle, th er e i s n o r ea so n t o f

ur th er ex pl or e a ny p ot en ti al ad di ti on al re qu ir em en ts of 44 18 . A cc or di ng ly, the court turns to the body of la w addressed by

the parties. “It is well settled law that mercha ndise is classified according to its condition when imported.” Mita Copystar Am. v. United States , 21 F.3d 1079, 1082 (Fed. Cir. 1994). To determine whether imported merchandise is sufficiently advanced and recognizable a t the time of importati on, the co

urt must consider whether th e merchandise is : 1) identi fiable a nd “fix[ed] withCourt No. 02-00595 Page 9

certainty” as part of the final product at the time of importation, Baxter H ealthca re Corp. of P.R. v. United States , 182 F.3d 1333, 1339 (Fed. Cir. 1999); 2) so far advanc ed as to be “dedicated solely or principally

for use” in the final product, id. at 1338; see also Heraeus-Amersil, I nc. v. United States , 10 CIT 258, 261, 640 F. Supp. 1331, 1333 (1986); and 3) discer nable as pieces of specific product structures, not just “the making of [the products] in the abstract,” Bendix Mouldings, Inc. v. United States , 73 Cust. Ct. 204, 206, 3 88 F. Supp . 1193, 119 4 (1974). These may simply

be different ways of saying the same thing, but the court will address each. “[P]roof of use is not sufficient” to overcome these requireme nts. Benteler Indus., I

nc. v. United States , 17 CIT 1349, 1355, 840 F. Supp. 912, 917 (1993).

1. The Subject Merchandise Was Not Identifiable or Fixed With Certainty at the Time of Importation In the instant ca se, the me

rchandi se as imported was not identif

iable or fixed with certainty a s unassembled pieces of wood trusses at the time of importation. Although Millenium argue s that the e

xistence o f the ang

le cuts a nd end use

r stateme nts indica tes that the wood wa s to be used in

trusses, Millenium’ s asserti on that the imported merchan

dise was i dentifia

ble with certainty a

t the time of importation on the basis of these items does not stand. In order to be consider

ed recognizable unassembled pieces of a final product, the imported items must have reached the point where they are “too developed in form and detail and too close to the final product to be considered mere materia l.” Lee Enter., I

nc. v. United States , 84 Cust. Ct. 208, 215, C.D. 4680 (1980). Here, the evidence on the record de monstrates that there is no genuine issue as to the fact that some or a ll of the imported lumber would require significant additional processing in order to be a ssembled into completed wood trusses.Court No. 02-00595 Page 10

10 Millenium also admits that, due to pricing distortions resulting from the Softwood Lumber Agre ement between the United States and Canada, there was a significant possibility that “the purchase of advanced wood pr oducts classified under 4418 could be utilized as a cheaper source of fiber [than standard lumber] through re-c utting.” (Pl.’s Mot. for Summ. J. 37–38.) Althoug h this does

not affe ct the condition of the merc handise a t the time o f importa

tion, it als o indicate s an incr

eased li kelihood t

hat the imp orted lumb er would be recu t subseque

nt to importation, for use as truss lumber or otherwise. Millenium has failed to present plausible evidence that the merchandise a s imported could be assembled into one or more completed trusses without additional cuts or recutting. Acme Venetian Blind & Window Shade Corp. v. United States explains that “wood products not processed bey

ond sawing and planing, etc., do not lose their cha racter as lumber . . . unless they are a new and different a

rticle, having a specific name and f unction.” 56 Cust. Ct. 563, 570, C.D. 2704 (196 6). Her

e, the ne ed for a

dditional c

uts or re cutting

render s the subje ct merchandise unidentifiable as unassembled pieces of trusses under 4418.

The evidence presented by both parties demonstrates that the need for recutting resul ted fr om sev eral fa ctors exis ting at the ti me of i mport ation , incl udin g stand ard tr uss d esign requirements, unpredictable shrinkage and swelling that commonly oc curs during transport, the lengths of the imported boa

rds, and t he potent ial for the merch

andise to be effi ciently

used in
truss design s afte r addi tion al pro cessi ng. 10 In particular, the squar e cuts on one end of each board, although potentially useful in occasional square cut overhang s or splicing, ( see Woeste Report 7, Pl.’s Mot. f

or Summ. J., At

tach. 5, T ab 1 (“Woe ste Repor t”); see also

Garretto Dep. 145:24–14 6:4, Jan. 27, 2004, Pl.’ s Mot. for Summ. J., Atta

ch. 2 (“G arretto

Dep.”) ), would a

lmost certain ly r equire r ecutting to achie ve nece ssary

angles in the top a

nd bottom chords. (Wo este Report 8– 9 (“[N]one

of the imported lumbe

r would fi t into the bottom chord

of a US tru ssCourt No. 02-00595 Page 11

without additional cuts.” (emphasis omitted)).) Moreover, even if the original cuts produced the require d angle s for por

tions of a truss des ign, a su

bstantial number of

the boar ds would lik

ely require trimming or recu tting to a ccount f or shrink age or swelling that resu lts from exposure to heat and/or moisture during transport. ( See, e .g. , Garre tto Dep. 1 73:10–25, 221:2–18; see also Woeste Report 9; Woeste Dep. 122:13–19, Jan 25, 2005, Pl.’s Mot. for Summ. J., Attach. 5 (“Woeste Dep.”) (“If the intent is for them to somehow be installed dire ctly into a truss without additional cuts [given the possibility of shrinkag e and swelling], that doesn’t make sense.”).)

In addition, the length of the boa rds combined with the square cut ends indicates the need for addi tional cu ts in orde r to const ruct a c ompleted

truss. Alt

hough Mi llenium cl aims that the boards were imported at standard leng ths ready for

assembly, mere a ssertion of such a conclusion is insufficient to create a genuine issue of fact. Instead, the e

vidence on the record indicates an overwhelming improbability that an actual truss design would require all component pieces cut to the exact foot, and each piece squar e cut at one end. (Woeste Report 9 (stating that it is “a near zero [ ] probability that a set of building pla ns would require roof trusses with a square cut overhang and re quire top chord members to have an overall leng th falling on the exact even foot, with no inches or sixteenths.”).) Moreover, “[w]hile an exact foot [total] ‘truss span’ has a re asonable

chance of occur rence i n US produc

tion, it is extremely

unlikely for the d esign to also have a top chord overall length fa lling on the exact foot.” ( Id. at 5 (emphasis omitted).) While Millenium has produced a hypothetical de sign in which exact-footage leng ths may occur, (Pl.’s Mot. for Summ. J., Attach. 1, Ex. D (design submitted by Millenium); Woeste Report 1–2, 4, 8 (stating that the design is hy pothetical)), it has not presented actual designs re presentative ofCourt No. 02-00595 Page 12

or intended for the construction of the imported merchandise. I n addition, Millenium has failed to present any pla

usible evidence that the materials as imported constituted realistic or ready-toassemble pieces of any

identifiable truss or trusses. Based on a description of the phy sical charac teristic s of the me

rchandi se at the

time of imp ortation, “at the b order, [a n expert] wo

uld not recognize it as a truss member. . . . [Y]ou would recognize it - - in the context of being use d . . . as something that had to be processed.” (Woeste Dep. 30:21–31:8.) U pon further processing, however, the imported lumber would be “ nearly 100%

useful in US truss production by the addition of one or more cuts to each piece.” (Woeste Report 9.) Therefore, the evidence pre sented regarding the c ondition of the merchandise at the time of importation, as well as the likelihood of alteration subsequent to importation, demonstrates that no reasonable fact-finder could find that the merchandise as imported was identifiable as unassembled wood truss pieces, or that the materials wer e fixed with certainty as such pieces at the time of importation.

2. The Merchandise is Not Sufficiently Advanced as to be Dedicated Solely or Principally for Use in Completed Wood Trusses Even if the merchandise w ere ide ntifiable as intend ed for us e in wood t

russes, Millenium has not presented evidence to suggest that the imported me rchandise was so far advanced as to be considered “ca rpentry” under heading 4418, or to be “dedica ted solely or principally for use ” as pieces of wood trusses at the time of importation. See Baxter , 182 F.3d at 1338. State

ments of in

tended us e or eve

n “proof of use” a re not suf ficient t o overcome this requirement. See Benteler , 17 CIT at 1355, 840 F. Supp. at 917.

Millenium a

rgues t hat the imp orted boa

rds, cut t o an ang le other

than nine tyCourt No. 02-00595 Page 13

degrees at one end, are

sufficiently adva

nced to be considered recog nizable truss pieces, or even complete trusses, for the purposes of tariff classifica tion. It is clear, however, tha t the boards were not sufficiently

advanced to be dedicated to the single use of constructing wood trusses. ( See Billows Dep. 209:7–210:9, Jan. 28, 2004, Pl.’s Mot. for Summ. J., Attach. 1.) In addition, although it asserts that the merchandise was solely intended for use in wood trusses, Millenium admit s that the wo od cou ld be u sed by pur chaser s as an alter nate s ource o f raw lu mber t hrough recutting for other purposes subsequent to importation. (Pl.’s Mot. for Summ. J. 38 .) Becau se the merc handise maintaine d its identi ty a nd useful ness as g eneral

sawn lumbe

r for pot entially numerous purposes, it was not sufficiently advanced at the time of importation to be classified under 4418. The subject merchandise is neither “too developed” nor “too close to the final product” to be considered “mere mater ial” under this portion of the analy sis. Lee Enter., I nc. , 84 Cust. Ct. at 214.

3. The Merchandise Was Not Discernable as Parts of Specific Product Structures at the Time of Importation Finally , the mer chandise must be re cogniza

ble as una ssembled

pieces o f specif

ic product s tructure s when impo rted, an d not just “the makin

g of [the products ] in the abst

ract,” in order to be classified under the heading for the final product. Bendix , 73 Cust. Ct. at 206 , 388 F. Supp. at 11 94. Millen

ium itself a

cknowle dged th at the sub ject mer chandise was not ide

ntifiable as pieces of any

particular truss at the time of importation, stating that each board “ may be used either as a stand alone chord or attache d to another truss component . . . . Truss manufacturers order and maintain an inventory of available truss components . . . . [and] may not know which specific truss design a truss component will go into.” (Pl.’s Mot. for Summ. J. 5.) MilleniumCourt No. 02-00595 Page 14

11 In contrast, Customs’ New York Ruling C89668 allowe d for a tariff classification under 4418 where all wood components necessary for each truss were shipped toge ther. The componen

ts were “ marked c onsistent w

ith [their] un

ique conf igurat ion to ensu

re an ac curate assembly of the truss. . . . [and] no cutting [was] necessar y at the time of assembly .” NY C89668 (Aug. 17, 1998). asserts that the merchandise is relatively interchangeable betwee

n designs, but also admits that the intended designs did not exist when the merchandise was imported. ( See id. ) Millenium sugge sts that ind

ividual tr uss desig ns would be

gener ated subs equent to

importati on according to “a variety of truss designs produced by recognized and accepted c omputer software sy stems.” ( Id. at 61.) This is not sufficient to establish the identity of the imported mater ials as ready-touse truss components.

In addition, Millenium has not presented evidence tha t the individual wood pieces were dedicated to use as any particular truss elements. As mentioned previously , many of the boards would have to be further cut in order to serve as either top or bottom chords in a standard truss design. ( See Woeste Report 8–9.) In addition, the merchandise a s imported was neither bundled as “truss kits” ready for assembly, nor la

beled as specific components of completed
trusses. 11 The evidence as presented demonstrate s that no reasonable fact-finder could find that the merchandise was imported as recog nizable unassembled pieces of specific trusses, or even tha t the merc handise was desig

nated pie ces for

specific truss des igns tha

t existed at

the time of importation. Because the subject merchandise was not identifiable or fixed with certainty a s wood trusses or pieces thereof at the time of importation, and was not suff iciently advanc ed to be dedicated for use in wood trusses, but was instead simply lumber, it is not classifiable asCourt No. 02-00595 Page 15

carpentry of wood under heading 4418. C. The Subject Merchandise is Not Classifiable Under Heading 4421 Heading 4421 covers “[o]ther articles of wood,” inc luding relatively advanced wood parts that are not classifiable under previous hea dings. See Explanatory Note 44.21. The court has established that the subject merchandise is classifiable as g eneral sawn lumber under heading 4407, and is not classifiable as unassembled piece s of builders’ carpentry of wood under heading 4418. The merchandise there fore does not fall within the “other” categ ory, and is not classifiable under heading 4421. Acc ordingly, unde r GRI 1, the merchandise is c lassified under heading 4407, as imported.

CONCLUSION

For the foregoing r

easons, Millenium’s Motion for Summary Judgment is denied, and the G overnme

nt’s Cross -Motion fo

r Summary

Judgment i s grant

ed. Millen

ium’s Motion to Strike Evi dence is

denied a s moot. Mille

nium’s ch alleng e as to Ent ry No. 144-7 025313-0

is dismissed as moot. Customs’ classification of the subject merchandise as to all remaining entries under subheading 4407.10.00 is sustained.

/s/ Jane. A. Restani Jane A. Restani Chief Judge Dated: This 16th day of Apr il, 2007. New York, New York.UNITED STATES COURT OF I NTERNATIONAL

TRADE

__________________________________________ : MIL LENI UM LUMBER DI STRIBUTI ON LTD., : : Plaintiff, : : v. : : Before: Jane A. Res tani, Chief Judge : UNI TED STATE S, : Court No. 02-00595 : Defend ant. :

: __________________________________________: JUDGMENT This case having been submitted for decision and the Court, af ter deliberation, having rendered a dec ision therein; now, in conformity with that decision,

IT I S HEREBY ORDERED that Plaintiff Millenium Lumber Distribution, Ltd.’s Motion for Summary Judgment is denied, and De fendant United States’ Cross-Motion for Summary Judgment is gra nted. Plaintiff’s Motion to Strike Evidence is denied as moot. Plaintiff ’s challe nge as to Entry No. 144-7 025313-0

is dismisse d as moot. Cu stoms’ classification of the subject merchandise as to all remaining entries under subheading 4407.10.00 is sustained.

/s/ Jane A. Re stani Jane A. Restani Chief Judge Dated: This 16th Day of A pril, 2007. New York, New York.