CLA-2 CO:R:C:G 087616 JMH
Mr. Dave Walser
Arthur J. Humphreys, Inc.
P.O. Box 249
Sumas, Washington 98295
RE: United States-Canada Free Trade Agreement duty free status
under Chapter 99 of the Harmonized Tariff Schedule of the
United States Annotated for laminated wood and finger-
jointed hemlock handrails, hemlock "turning squares",
laminated and bullnosed hemlock stair treads, and laminated
shoerails; builders' joinery and carpentry of wood,
articles of wood, edge-glued lumber, pressure treated
lumber, finger-jointed lumber
Dear Mr. Walser:
Your June 18, 1990 request for a classification ruling under
the Harmonized Tariff Schedule of the United States Annotated
("HTSUSA") for certain wood products was referred to this office
for a reply. Your classification request concerned the duty free
status of the products in question under the United States-Canada
Free Trade Agreement ("FTA").
FACTS:
The articles in question are wood products made of Canadian
hemlock and imported from Canada. They are used to form complete
staircase systems for residential and/or commercial buildings.
Three of the products were the subject of New York Ruling Letter
847226 ("NY 847226"), dated December 12, 1989. The items in
question are:
1. Hemlock handrails made of laminated wood sections,
finger-jointed and worked to a pattern having the
same profile in cross section throughout its
length. These handrails, were classified by NY
847226 in subheading 4418.90.40, HTSUSA.
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2. Hemlock stair treads made of laminated wood
sections and bullnosed along the front edge. The
stair treads were classified by NY 847226 in
subheading 4418.90.40, HTSUSA.
3. Hemlock "turning squares" made of various wood
sections (which may be finger-jointed) laminated
together to form a 10.7 cm square block with a 3.5
cm square hole in the center. The "turning
squares" were classified by NY 847226 in
subheading 4421.90.90, HTSUSA.
4. Hemlock shoe rails made of clear (knot-free)
lumber pieces, finger-jointed and worked to
produce the same profile in cross section
throughout its length. It is not stated whether
these shoe rails are solid or laminated.
Laminated wood articles are made from edge-glued lumber.
Edge-glued lumber is lumber made of layers of wood that have been
glued together. Articles which are finger-jointed are made from
finger-jointed lumber. Finger-jointed lumber consists of shorter
pieces of lumber that are connected to make longer pieces of
lumber. Articles may be both laminated and finger-jointed.
ISSUE:
Issue 1: What is the appropriate classification of the Canadian
hemlock products under the HTSUSA?
Issue 2: Whether the Canadian hemlock products are entitled to
duty free treatment under the FTA?
LAW AND ANALYSIS:
Issue 1: What is the appropriate classification of the Canadian
hemlock products under the HTSUSA?
The classification of merchandise under the HTSUSA is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUSA, states in part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes..."
This office concurs with NY 847228 in the classification of
the handrails and stair treads in subheading 4418.90.40. The
handrails and the bull-nosed stair treads are builders' carpentry
and joinery. This subheading describes "Builders' joinery and
carpentry of wood, including cellular woods panels and assembled
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parquest panels; shingles and shakes...Other...Other..." There
is a 4 percent ad valorem rate of duty applicable to goods of
this classification that are of Canadian origin under the FTA.
This office also concurs with NY 847228 in the
classification of the "turning squares" in subheading 4421.90.90.
This subheading describes "Other articles of wood...Other...
Other..." NY 847228 states that these articles "do not meet the
description of products under heading 4418 since they are
neither dedicated nor recognizable as woodwork used in the
construction of any kind of building." Classification in
subheading 4421.90.90 requires a 4 percent ad valorem rate of
duty for goods of Canadian origin under the FTA.
The hemlock shoe rail has two possible classifications. If
the shoe rail is a solid, unfinished molding, it is classified in
subheading 4409.10.45, HTSUSA, as "Wood continuously shaped
(...molded..) along any of its edges or faces, whether or not
planed, sanded or finger-jointed...Wood moldings...Other..." All
articles of this classification from Canada may enter the United
States duty free. Since this classification provides for duty
free entry regardless of the FTA, the question of the
applicability of the FTA to a solid hemlock shoe rail does not
arise.
If the hemlock shoe rail is laminated, then the proper
classification is in subheading 4418.90.40 as "Builders' joinery
and carpentry of wood, including cellular wood panels and
assembled parquet panels; shingles and shakes...Other...Other..."
As stated previously, articles of this classification of Canadian
origin under the FTA are charged a 4 percent ad valorem rate of
duty.
Issue 2: Whether the Canadian hemlock products, whose tariff is
based upon whether they originate in Canada, are entitled to duty
free treatment under the FTA?
General Note 3(c)(vii), HTSUSA, provides the FTA country of
origin rules to be applied under the HTSUSA. These rules were
taken from Articles 301 and 304 and Annex 301.2 of the FTA.
Chapter Three, Articles 301 and 304, Annex 301.2, FTA published
in full at 19 U.S.C. 2112(E)(2), 2212(A), H.R. Doc. No. 216,
100th Cong., 2d Sess. (1988). General Note 3(c)(vii)(B)(1),
HTSUSA, states that "goods originating in the territory of
Canada" includes "goods wholly obtained or produced in the
territory of Canada..."
"Goods wholly obtained or produced in the territory of
Canada..." means "goods harvested in the territory of Canada..."
General Note 3(c)(vii)(L)(2), HTSUSA. The hemlock which is grown
in Canada is a good "wholly obtained or produced" in Canada.
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Wood is considered an agricultural crop which is harvested. See
United States v. Border Brokerage Co., 706 F.2d 1579 (1983),
United States v. Norman G. Jensen, 550 F.2d 662 (CCPA 1977),
Headquarters Ruling Letter 082963, dated July 25, 1990,
Headquarters Ruling Letter 078239, dated March 23, 1987.
Therefore, the Canadian hemlock in question is a good
"originating in the territory of Canada" within the meaning of
the FTA. The wood is eligible for any provisions which apply to
products covered by the FTA.
Chapter 99 of the HTSUSA contains two duty free provisions
relevant to the wood articles of Canadian origin in question.
The two provisions, subheadings 9905.44.10 and 9905.44.15,
HTSUSA, provide free rates of duty for "Goods originating in the
territory of Canada under general note 3(c)(vii) of the tariff
schedule." The subheadings state the following:
9905.44.10 Pressure treated lumber, finger-jointed
builders' joinery, and edge-glued lumber
(provided for in subheading
4418.90.40)...
[Subheading 4418.90.40 describes
"Builder's joinery and carpentry of
wood, including cellular wood
panels and assembled parquet
panels; shingles and shakes...
Other...Other..."]
9905.44.15 Laminated hemlock post blanks, finger-
jointed lumber, and edge-glued lumber
(provided for in subheading
4421.90.90)...
[Subheading 4421.90.90 describes
"Other articles of wood...Other...
Other..."]
The laminated handrails and shoe rails and the bull-nosed
stair treads are classified in subheading 4418.90.40. However,
the language of subheading 9905.44.10 does not mimic the language
of subheading 4418.90.40, to which it refers. Therefore, it must
be determined exactly what articles classified in subheading
4418.90.40 are to receive duty free treatment under subheading
9905.44.10.
Heading 4418 covers "Builders' joinery and carpentry of
wood, including cellular wood panels and assembled parquet
panels; shingles and shakes..." Subheading 4418.90.40, is the
"other" subheading for heading 4418. It covers articles that
fall within heading 4418, but which do not fall in any of the
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specific subheadings. Specific subheadings exist for parquet
panels, and shingles and shakes. Therefore, since these articles
are not covered by subheading 4418.90.40, they are not included
within subheading 9905.44.10. This exclusion of parquet panels,
shingles and shakes leaves "Builders' joinery and carpentry of
wood, including cellular wood panels..." to be possibly covered
by subheading 9905.44.10.
Subheading 9905.44.10 covers in part "Pressure treated
lumber..." Pressure treated lumber is lumber that has been
treated with a chemical under pressure. Lumber, within the
HTSUSA, is unfinished wood of all types that has been sawn,
chipped, sliced or peeled lengthwise and that does not exceed 6
mm in thickness. Lumber which meets this definition is
classified in heading 4407, HTSUSA, not under heading 4418.
Heading 4407 provides a free rate of duty. Since pressure
treated lumber is already duty free, it is unlikely that
subheading 9905.44.10 refers to pressure treated lumber of these
types.
Also covered by subheading 9905.44.10 is "edge-glued
lumber". Edge-glued lumber does not meet the definition of
lumber in order to be classified in heading 4407. This layered
lumber is classified under various headings of the HTSUSA
according to the product made from the lumber.
Since heading 4418 covers specific articles, builders'
joinery and carpentry, the subheading 9905.44.10 reference to
pressure treated lumber and edge-glued lumber alludes to articles
made of these types of lumber. It is the opinion of this office
that subheading 9905.44.10 refers to builders' joinery and
carpentry made of pressure treated lumber, and builders' joinery
and carpentry made of edge-glued lumber, whether or not they are
finger-jointed. Cellular wood panels are not considered to be
builders' joinery and carpentry. Thus, cellular wood panels are
not included in subheading 9905.44.10.
The articles in question classified in subheading
4418.90.40, the laminated handrail and shoe rail and the stair
treads, are covered by subheading 9905.44.10. Laminated wood
articles are articles made of edge-glued lumber. Thus, under the
above interpretation of subheading 9905.44.10, the laminated
handrails, shoe rails and stair treads are eligible for duty free
entry into the Customs territory of the United States.
The "turning squares" are classified in subheading
4421.90.90, the "basket" provision of heading 4421, HTSUSA, which
describes "Other articles of wood..." The language of subheading
9905.44.15 is clear that laminated hemlock post blanks are
included in this duty free provision. However, the remainder of
the provision refers to types of lumber, finger-jointed lumber
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and edge-glued lumber. Since lumber is classified in heading
4407 or in the heading appropriate to the product made from the
lumber, in the case of edge-glued lumber, the language of
subheading 9905.44.15 cannot be referring to lumber. It is the
opinion of this office that subheading 9905.44.15 is meant to
cover laminated hemlock post blanks, articles made of finger-
jointed lumber and articles made of edge-glued lumber, whether or
not finger-jointed, that are classified in subheading 4421.90.90.
The "turning squares" are laminated, and therefore, edge-
glued. Since the "turning squares" are articles of edge-glued
lumber that are classified in subheading 4421.90.90. They are
eligible for duty free entry under subheading 9905.44.15.
Subheadings 9905.44.10 and 9905.44.15 were announced on May
25, 1990 in Presidential Proclamation 6142. This proclamation
was not pubished until May 30, 1990. 55 Fed. Reg. 21835 (May 30,
1990). The Chapter 99 subheadings were included in Section C of
the proclamation. Section C states "Effective with respect to
articles entered, or withdrawn from warehouse for consumption, on
or after April 1, 1990, subchapter V of chapter 99 to the HTS is
modified..." 55 Fed. Reg. at 21838. Therefore, the effective
date of subheadings 9905.44.10 and 9905.44.15 is April 1, 1990.
HOLDING:
It is the opinion of this office that subheading 9905.44.10
is meant to be read as "builders joinery and carpentry made of
pressure treated lumber, and builders joinery and carpentry made
of edge-glued lumber classified in subheading 4418.90.40, whether
or not finger-jointed."
The Canadian hemlock items classified in subheading
4418.90.40, the laminated handrails, shoe rails, and stair treads
are builders' carpentry or joinery made of edge-glued lumber, are
eligible for duty free entry under subheading 9905.44.10.
It is the opinion of this office that subheading 9905.44.15
is meant to be read as "laminated hemlock post blanks and other
articles made of edge-glued lumber, whether or not finger-
jointed, classified in subheading 4421.90.90."
The Canadian laminated hemlock shoe rails are articles made
of edge-glued lumber that are also finger jointed. Since the
shoe rails are classified in subheading 4421.90.90 and are
articles made of edge-glued lumber, they are eligible for duty
free treatment under subheading 9905.44.15.
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The effective date of subheadings 9905.44.10 and 9905.44.15
for articles entered or withdrawn from a warehouse for
consumption is April 1, 1990, in accordance with Presidential
Proclamation 6142 of May 25, 1990.
Sincerely,
John Durant, Director
Commercial Rulings Division