CLA-2 CO:R:C:T 950682 CRS
Area Port Director
United States Customs Service
9901 Pacific Highway
Blaine, WA 98320
RE: Application for further review of Protest No. 30041-000158;
tree stakes; EN 44.04.
Dear Sir:
Protest No. 30041-000158 dated July 2, 1991, filed by Norman
G. Jensen, Inc., on behalf of North Idaho Post & Pole, has been
referred to this office for further review. Our decision follows
below.
FACTS:
The merchandise at issue consists of tree stakes made from
lodgepole pine logs approximately three and one-half inches in
diameter. The cut logs are fed into a machine containing several
cutting knives. The knives remove the bark and a portion of the
wood to produce finished "stakes" with a uniform diameter of
approximately two inches. The finished tree stakes have a
diameter of two inches, are pointed at one end, and chamfered at
the other. The stakes are available in six, eight, ten and
twelve foot lengths.
Protestant contends that the tree stakes in question are
classifiable as stakes of subheading 4404.10.0080, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA).
ISSUE:
The issue presented is whether tree stakes, pointed at one
end and chamfered at the other, with a uniform diameter of two
inches throughout most of the length, are classifiable as stakes
of wood, or under a residual provision for other articles of
wood.
LAW AND ANALYSIS:
Heading 4404, HTSUSA, provides, inter alia, for stakes of
wood. The term "stake" is defined as a "length of wood or metal
pointed at one end for driving into the ground, as for marking a
boundary, supporting a plant, etc." Webster's New World
Dictionary, 3rd Coll. Ed. 1988, 1304. The merchandise at issue
consists of lengths of wood that are pointed at one end and used
for supporting trees. Protestant therefore contends that the
instant stakes are specifically provided for in heading 4404 and
are classifiable accordingly.
An eo nomine designation includes all forms of the article
unless there exists a contrary legislative intent. American
Rusch Corp. v. United States, 394 F.Supp. 1402, 1405 (1975). In
this instance, there is no issue as to whether the articles in
question are stakes, but merely one as to whether they are the
type of stakes provided for in heading 4404.
The Explanatory Notes (EN) are the official interpretation
of the Harmonized System at the international level. While not
legally binding, the EN provide in pertinent part that heading
4404 covers:
(2) Split poles, consisting of branches of trees split
along the length. These are largely used as supports
in agriculture, for fencing or in some cases as ceiling
or roofing laths.
(3) Pointed piles, pickets and stakes (including fence
posts), consisting of round or split poles,
pointed at the ends, whether or not peeled or
impregnated with preservative, but not sawn
lengthwise.
EN 44.04(3), EN/AS 3, July 1988, 625. The EN make it clear that
stakes of heading 4404 consist of round or split poles. The
latter are defined at EN 44.04(2), as stems or branches of trees
split along the length. It can be inferred from this that round
poles consist of stems or branches of trees not split along the
length. Thus to rephrase EN 44.04(3), stakes of heading 4404 may
be said to consist of branches of trees split along the length.
The instant stakes, however, were manufactured by feeding lodge
pole pine logs into a machine which removes the bark and some of
the wood to produce an article with a uniform diameter. Customs
is therefore of the opinion that the drafters of the Harmonized
System intended that heading 4404 be confined to roughly hewn
stakes. Accordingly, Customs considers the stakes in question to
be distinguishable from stakes of heading 4404.
Heading 4421, HTSUSA, provides for other articles of wood.
This heading is a residual provision covering all articles of
wood manufactured by turning or any other method that are not
more specifically provided for elsewhere in the nomenclature.
There are no headings which specifically provide for processed
stakes; consequently, the instant merchandise is classifiable in
heading 4421.
HOLDING:
The merchandise in question is classifiable in subheading
4421.90.9040, HTSUSA, under the provision for other articles of
wood: other: other: other.
You are instructed to deny the protest in full. A copy of
this decision should be attached to the Form 19 Notice of Action.
Sincerely,
John Durant, Director