CLA-2 CO:R:C:T 088538jlj
District Director
U. S. Customs Service
P. O. Box 1490
St. Albans, Vermont 05478
RE: Decision on Application for Further Review of Protest No.
0201-90-000084; Classification of strips of laminated wood;
Heading 4412
Dear Sir:
This protest was filed against your decision in the
liquidation of certain entries covering strips of laminated wood
imported from Canada. A sample was submitted to Customs
Headquarters along with this protest.
FACTS:
The merchandise in question is strips of wood which appear
to have been cut to size from laminated panels consisting of 13,
17, or 19 veneer plies. The grain of each ply runs in the same
direction--along the length of the wood strip. The wood used is
either birch or aspen.
The instant merchandise comes in various dimensions, e.g.,
.785 inch wide by 1.18 inch thick by 53 inches long, 19 ply. The
wood strips are used in the manufacture of hockey sticks. They
are rectangular pieces of wood cut to size but not further
processed in any manner.
The protestant states that the wood strips are material used
in the manufacture of hockey sticks. In the United States, each
imported laminated strip is shaped, removing about 5 percent of
the wood. Fiberglass may then be attached to each side of the
wood strip. The strip is then prepared to accept the blade.
The instant merchandise was liquidated under the provision
for plywood, veneered panels and similar laminated wood: other,
with at least one outer ply of nonconiferous wood: other: other,
in subheading 4412.29.5000, HTSUSA.
ISSUE:
Are the instant laminated wood strips classified in Heading
4412, Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), which provides for plywood, veneered panels and similar
laminated wood, or in Heading 9506, HTSUSA, which provides for
articles and equipment for gymnastics, athletics, or other sports
or outdoors games?
LAW AND ANALYSIS:
Articles are classified under the HTSUSA in accordance with
the General Rules of Interpretation (GRI's). GRI 1 provides that
the classification of articles is determined by the terms of the
headings and any relative section and chapter notes. The
competing provisions are listed above under "Issue."
Chapter Note 1 (p) of Chapter 44, HTSUSA, states that:
1. This chapter does not cover:
* * *
(p) Articles of Chapter 95 (for example,
toys, games, sports equipment);
* * *
This chapter note means that, if the instant merchandise is found
to be properly classified in Chapter 95, HTSUSA, as unfinished
parts of hockey sticks it cannot be considered for classification
in Chapter 44, HTSUSA.
Counsel for the protestant claims that the instant laminated
wood strips should be classified in subheading 9506.99.2540,
HTSUSA, which provides for articles and equipment for gymnastics,
athletics, other sports or outdoor games: other: other: ice
hockey and field hockey articles and equipment, and parts and
accessories thereof. He contends that the instant wood strips
are unfinished ice hockey sticks.
Counsel cites GRI 2 (a), HTSUSA, which states as follows:
Any reference in a heading to an article shall be
taken to include a reference to that article
incomplete or unfinished, provided that, as
entered, the incomplete or unfinished article has
the essential character of the complete or
unfinished article.
He argues that the wood strips are unfinished ice hockey
shafts which have the essential character of the finished shafts.
He states that the instant strips are made to the specifications
of the ice hockey stick manufacturer and are used only to make
the finished ice hockey shafts. He cites United States v. John
A. Steer Co., 46 CCPA 132, C.A.D. 715 (1959) for the legal
principle that the strips are a part of the ice hockey sticks.
Counsel also cites American Import Co. v. United States, 26
CCPA 72, C.A.D. 4121 (1938), for the principle that an article
may be classified under an eo nomine provision if that article
has been so far processed toward its ultimate completed form as
to be dedicated to the making of that article or has been so far
advanced beyond the stage of materials as to be dedicated to and
commercially fit only for use on the particular article.
Counsel claims that GRI 3 (a), HTSUSA, which states that the
most specific heading shall be preferred to headings providing a
more general description, mandates that the strips be classified
in subheading 9506.99.2540, HTSUSA, rather than in subheading
4412.29.5000, HTSUSA.
He reiterated the arguments above in written submissions
dated May 21, 1991, June 25, 1991, and July 8, 1991, as well as
in his initial brief submitted with the protest. He amplified
his position at conferences held April 19, 1991, and June 27,
1991, at Customs Headquarters with personnel from this office.
He submitted letters from two United States importers of the
instant merchandise and from the protestant which state that the
strips are designed to be used as parts of ice hockey sticks.
At the second conference and in his submission of July 8,
1991, counsel raised for the first time the issue of whether the
instant merchandise constituted "blanks" for tariff purposes.
The Explanatory Notes for GRI 2 (a), HTSUSA, define "blanks" as
follows:
(II) The provisions of this rule also apply to
blanks unless these are specified in a
particular heading. The term "blank" means
an article, not ready for direct use, having
the approximate shape or outline of the
finished article or part, and which can only
be used, other than in exceptional cases, for
completion into the finished article or part.
Semi-manufactures not having the essential
shape of the finished articles (such as is
generally the case with bars, discs, tubes,
etc.) are not regarded as "blanks".
Counsel argues that the instant merchandise constitutes blanks
for unfinished parts of hockey sticks for the following reasons:
1. They are not ready for direct use because
they must undergo shaping;
2. They have the approximate shape and size of
the finished shafts because only a little
processing is necessary to make them into the
finished shafts; and
3. They can only be used and are only used for
completion into finished shafts, which are
used only for incorporation into finished
sticks.
Chapter Note 4 of Chapter 44, HTSUSA, says the following:
4. Products of Heading 4410, 4411 or 4412 may be
worked to form the shapes provided for in
respect of the articles of heading 4409,
curved, corrugated, perforated, cut or formed to
shapes other than square or rectangular or
submitted to any other operation provided it
does not give them the character of articles of
other headings.
This chapter note gives a broad interpretation to the headings it
mentions, including Heading 4412. It indicates that the
merchandise in Heading 4412 may be processed in a vast variety of
ways and still be classified in that heading, as long as it does
not take on the character of another heading.
The "shapes provided for" in Heading 4409 include wood which
has been continuously shaped along any of its edges or faces and
which has been planed, sanded or end-jointed. Heading 4409 also
provides for tongue and grooved wood (where one edge is grooved
and the other is tongued or flanged), for chamfered boards (those
in which one or more corners have been removed lengthwise at an
angle to the face and the edge), for rebated boards (those in
which one or both edges have been cut to form a step), for round-
edged boards, for V-jointed wood (wood tongued and grooved with
chamfered edges) and center-V-jointed wood (wood with a V-shaped
channel in the center of the board and also usually tongued and
grooved and sometimes chanfered at the edges), for beaded wood
(wood which has been tongued and grooved with a simple bead
between the edge and the tongue) and center-beaded wood (which
has been tongued and grooved with a simple bead along the center
of the face), molded wood (strips of wood shaped to various
contours), and rounded woods (dowelling and woods with round
cross sections).
The variety and the complexity of the operations allowed
under Heading 4412, as indicated by the examples given above, is
so vast that the simple operation performed upon the instant
merchandise (i.e., cutting to size) is without question included
within the scope of that heading. In its condition as imported,
the instant strips have been cut from a larger laminated sheet.
An examination of the sample shows that it is a rectangular piece
of wood cut to size but not further processed in any way.
In the wood industry, cutting to size is a common operation
which is not regarded as imparting specific characteristics to
the wood nor removing it from the material state. For instance,
lumber and panels are cut to size but are still regarded as
material by the industry and for tariff classification purposes.
At the time of importation, the instant wood strips do not
have the essential character of unfinished hockey sticks nor
parts for hockey sticks. They have been cut to size, but they
have not been so far advanced in manufacture as to be
commercially fit only for use in hockey sticks. The instant
strips are still merely pieces of wood which could be used for
any number of things. There is nothing about the instant sticks
which would dedicate them to use as ice hockey sticks.
Even articles which have been much further advanced than the
instant strips have been held to be materials for tariff
purposes. In A. N. Deringer v. United States, 61 Cust. Ct. 66,
C. D. 3530 (1968), the court held that "horsefeathers," articles
of wood which were made by sawing logs into boards, resawing the
boards longitudinally, and then bevel cutting the resawn boards,
were lumber notwithstanding the fact that their character was so
changed that they were useful for only a single purpose and
notwithstanding the fact that they were known by a different name
than lumber. The court observed that the horse feathers were not
so advanced as dressed or worked lumber. It concluded that the
classification of horse feathers as lumber was not precluded by
the fact that they could only be used for a definite purpose.
In Pacific Hardwood Sales Co., Judson Sheldon International
Corp. v. United States, 64 Cust. Ct. 68, C. D. 3960 (1970), edge-
glued hardboard which had been cut, surfaced, eased and grooved
and which was further processed after importation by precision
cutting, sanding and dovetailing for use in making drawer sides
was held to be lumber even though it was "used for one thing
only." The court held that the merchandise at issue fit the
specific provision for hardwood lumber.
In C. T. Takahashi & Co., Inc. v. United States, 74 Cust.
Ct. 38, C. D. 4583 (1975), the court held that plywood panels
which had been V-grooved, sanded and prefinished, were still
classified as plywood. The court also said that the mere fact
that the plywood panels had been cut and made suitable for a
particular use would not prevent their classification under the
provision for plywood.
The Court of Customs and Patent Appeals held in B. A.
McKenzie & Co., et al. v. United States, 47 CCPA 42, C.D. 726
(1959), that plywood panels known as "doorskins," which were made
to the importer's specifications as to quality, finish, thickness
and size and which were used extensively in the manufacture of
flush door panels, not carried as stock items by dealers, and
ordered and manufactured according to the specifications of door
manufacturers were still classified as plywood. The court held
that the evidence did not establish that the dimensions of the
imported plywood panels made them articles distinct from plywood
which could no longer be used for a large portion of the
potential uses of plywood. The court also held that neither the
importer's intent nor the actual uses of the panels were alone
determinative of the proper tariff classification.
Counsel argues that the instant merchandise constitutes
blanks for ice hockey stick shafts. As set forth above, the
Explanatory Note for GRI 2(a), HTSUSA, state that the term
"blank" means an article which has the approximate shape or
outline of the finished article or part. The Explanatory Notes
further state that semi-manufactures not having the essential
shape of the finished articles are not regarded as blanks.
The instant merchandise is rectangular strips of wood which
have not been shaped in any way to resemble the shafts of ice
hockey sticks. They do not have the approximate shape or outline
of finished ice hockey sticks or shafts. As such, they do not
constitute blanks for ice hockey stick shafts. The instant
merchandise is merely laminated pieces of wood. This merchandise
is provided for eo nomine in Heading 4412, HTSUSA.
Following the reasoning above, we find that the instant cut
to size strips of laminated wood are classified as laminated wood
rather than as unfinished hockey sticks.
HOLDING:
The instant strips of wood are classified in subheading
4412.29.5000, HTSUSA, dutiable at the rate of 4 percent ad
valorem. Products of Canada which are classified in this
provision and which meet all the requirements of the United
States-Canada Free Trade Agreement are eligible for a duty rate
of 0.8 percent ad valorem.
The protest should be denied in full. A copy of this
decision should be sent to the protestant along with the CF 19
Notice of Action.
Sincerely,
John Durant, Director