CLA-2-OT:RR:CTF:TCM H256547 RSD
Tariff No. 4421.90.97
Area Port Director
U.S. Customs and Border Protection
555 Battery Street
San Francisco, California 94111-2312
RE: Internal Advice Concerning Classification of Wood Moldings for Blinds and Wood Shutter Components
Dear Area Port Director:
This is in response to your memorandum date stamped July 10, 2014, forwarding a request for internal advice submitted by the Law Office of George R. Tuttle on behalf of San Benito Shutter Company, Inc., (San Benito) concerning the classification of wood molding products under the Harmonized Tariff Schedule of the United States (HTSUS). This letter responds to that request.
FACTS:
The moldings, which are the subject of this internal advice, are items commonly referred to as louvers, tilt-rods, astragals, stiles, rails, and frames or trim. The specific products under consideration in this case are imported from Indonesia and China. San Benito markets finished shutters, as well as moldings that are components utilized for both shutters and other products, used for doors, wainscoting, shoji screens, decks, vents, and fabric frames. All the imported moldings addressed in this internal advice decision are only made of edge-glued and/or face-glued wood. The wood is glued edge to edge to increase the article’s width, and the wood is continuously shaped throughout its length. In other words, smaller pieces of wood are edged-glued together to form larger pieces.
After the edge-gluing, the wood is run though a molding machine to form the desired type of molding. Then, a gesso coating is applied to the moldings, which prepares them for painting after importation and assembly into the final product, whether it be shutters, doors, wainscoting, screens, decks, etc.
Each of San Benito’s imported wood moldings have the following properties:
Are made from non-coniferous wood and are imported in standard wood lengths of 6 feet to 14 feet and are all less than 15 inches wide;
Have been worked to a pattern and have the same profile in the cross section through their length;
Have a repeating design worked along an edge or face;
Are continuously shaped along their edges, ends or faces to form moldings that are used for various purposes, such as the manufacture of picture frames, decoration of walls, furniture, doors, shutters, windows and other carpentry, or joinery;
Are standard wood moldings and are not “parts” as they have all multiple uses;
Are imported in a “primed” condition in order to preserve them and ready for painting.
ISSUE:
Whether the imported moldings are classified in subheading 4409.29.40, HTSUS, as: Wood continuously shaped, standard wood moldings or in subheading 4421.90.94, HTSUS as edge-glued lumber, or in subheading 4421.90.97, HTSUS, as other articles of wood: other: other?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The HTSUS provisions under consideration are as follows:
4409 Wood (including strips and friezes for parquet flooring, not
Assembled) continuously shaped (tongued, grooved, rebated, chamfered, V-jointed, beaded molded, rounded or the like) along any of its edges, ends or faces, whether or not planed, sanded or end-jointed:
4409.20 Other:
4409.20.40 Standard wood moldings
* * * * * *
4421 Other articles of wood:
4421.90 Other:
Edged-glued lumber
4421.90.97 Other
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The EN to heading 44.09 states the following:
This heading covers timber, particularly in the form of boards, planks, etc., which after sawing or squaring, has been continuously shaped along any of its edges, ends or faces either to facilitate subsequent assembly or to obtain the mouldings or beading …Whether or not planed, sanded or end jointed, e.g. finger-jointed (see the General Explanatory Note to this Chapter). Continuously shaped wood covers both products with a uniform cross-section through the length or width and products having a repetitive design in relief.
EN to heading 44.09 further provides that the heading also excludes:
(d) Moulded wood built up by superimposing a moulding on another piece of mould or unmoulded wood (heading 44.18 or 44.21).
(e) Wood which has been surface worked beyond planing or sanding, other than painting, staining, or varnishing (e.g., veneered, polished, bronzed or faced with metal leaf) (generally heading 44.21).
Based on a series of previous court decisions, B.A. McKenzie & Co., Inc. v. United States, 39 Cust. Ct 52 (1957); Border Brokerage Co. v. United States, 52 Cust. Ct. 204, C.D. 2461 (1964); Pacific hardwood Sales Co. v. United States, 64 Cust. Ct. 68, C.D. 3960 (1970), and C.B. Smith Co. v. United States, 64 Cust. Ct. 278, C.D.3991 (1970), San Benito’s counsel asserts that the gluing of the separate pieces of wood together to increase the size of the article should be classified in the same way as articles consisting of one piece materials. According to counsel, the edge-gluing together of the separate pieces is done solely to obtain a piece of wood that is of the same size performance as that of a single piece of wood. It is maintained that the purpose for gluing two or more pieces together is not to layer them or to increase their strength, durability or resistance to warping, as is done with plywood, but to make them the same size as one piece stock. Under the above cited cases, counsel argues that edge-gluing does not preclude classification in heading 4409, HTSUS. The edge-gluing pieces of wood side-by-side to achieve a wider, thicker, or longer piece of wood is not beyond the scope of the term “end-jointed” which describes boards joined end-to-end to achieve a longer expanse. The edge-glued pieces are no different in substance from the one piece material and should be treated in the same way for classification purposes. Thus, whether articles are molded from one piece or if they are made up of two or more separate pieces of wood that are glued on their edges, they should be considered as solid wood moldings, and consequently are classifiable under heading 4409, HTSUS.
However, a review of the actual language of heading 4409, HTSUS, indicates that the heading only provides for articles that have been “end-jointed”, and there is no mention of the term edge-jointing. Therefore, it is necessary to consider for purposes of the HTSUS, whether the terms “edge” and “end” for wood products classified in chapter 44 of the HTSUS should be considered as synonymous terms. There is no definition or guidance for these two terms in the HTSUS. When the HTSUS does not define terms, they will be construed in accordance with their common and commercial meanings. In such cases, the courts consult industrial or commercial standards within the affected industry, particularly those sanctioned by the American National Standards Institute (ANSI). See Headquarters Ruling (HQ) H095040 dated November 1, 2010.
The initial responsibility of the Customs Service is to examine the plain meaning of the statutory text. See Marcor Dev. Corp. v. United States, 926 F. Supp. 1124, 1129 (Ct. Int’l Trade 1996) citing Trans-Border Customs Services v. United States, 843 F. Supp. 1482, 1485 (Ct. Int’l Trade 1994). If the plain language of the heading establishes the clear and unambiguous intent of Congress, the classification inquiry at the heading level is complete. See Id. The meaning of a tariff term, absent contrary congressional intent, is one that is in accord with its common and popular understanding. See Carl Zeiss, Inc. v. United States, 195 F. 3d 1375, 1379 (Fed. Cir. 1999). If the common and popular meaning of a tariff term is not ascertainable from the schedule, Customs may rely on its own understanding of the terms and may consult lexicographic and scientific authorities, dictionaries and other reliable sources. See Generally Precision Specialty Metals, Inc. v. United States, 116 F. Supp. 2d 1350, 1362 (Ct. Int’l Trade 2000).
To learn about the meaning of the terms “end” and “edge” for wood products, we have consulted a recognized reference book on wood terminology, Terms of the Trade, Fourth Edition Revised and Expanded, Random Lengths, which is a wood industry glossary. It defines the term edges as “the narrow faces of rectangular-shaped lumber.” In the same book, “Face” is defined as “the face of a piece of lumber or plywood is that side showing the better quality or appearance.” While the term “End” is not defined in the book Terms of the Trade, it is considered by its common meaning. “End grain” is defined as “the end of a piece of wood that is exposed when the wood fibers are cut across the grain.” This means that in considering a board, the faces are the widest surface, the edges are the sides, and the ends are the points at which the length of the board terminates. Based on this authority, we conclude that the terms “end” and “edge” of a piece of wood have distinct meanings. In this case, the pieces of the wood used to make the moldings are glued at the edges and not at the ends of the wood pieces. Because heading 4409, HTSUS provides only for end-jointing and not edge-jointing, the moldings in this case would be outside the scope of heading 4409.
Along these lines, CBP has previously ruled on several occasions that edge-gluing precludes classification in heading 4409, HTSUS. For example, in NY N246758, dated October 31, 2013, CBP considered classification of a continuously shaped flat jamb which was of edge-glued construction. The ruling indicated that the edge-gluing and the gesso coating precluded classification in heading 4409, HTSUS.
In another case, NY N242434 dated June 12, 2013, CBP considered the classification of solid wood and edge-glued moldings identified as “Moulded Wood Astragal”. The applicable subheading in which the solid wood moldings were classified was 4409.29.40, HTSUS. However, in the case of the edge-glued molding, it was held that edge-gluing precluded classification in heading 4409, HTSUS. The ruling stated that edge-gluing of pieces of wood in a side by side manner to achieve a wider panel is beyond the scope of the term “end-jointed” which describes boards joined end to end to achieve a longer expense. The ruling further noted that EN 44.09 states that only solid wood, with the exception of wood that has been end-jointed is classified in that heading. Consequently, the applicable subheading for the edge-glued molding was determined to be subheading 4421.90.97, HTSUS.
Similarly, in NY N231419 dated September 11, 2012, CBP again stated that the edge-gluing of wood pieces precludes classification in headings 4407 and 4409, HTSUS. The shaping also precluded classification in heading 4407, HTSUS and the coating excluded classification in heading 4409, HTSUS.
In this case, considering the furnished sample moldings, we do not agree with counsel that the edge-gluing of the pieces of wood only increases the size of the moldings. We believe that the edge-gluing changed the individual pieces of wood into different articles. In reviewing the furnished samples, we note that the individual pieces of wood do not appear to be identical in that there are differences in the configuration and the shape of the pieces of wood that are glued together. This means that when the individual pieces are edge-glued together, they undergo a change in identity to form the finished molding products. As a result, the edge-gluing of the wood pieces together constitutes a further processing of the wood pieces which does more than increase the size of the pieces. Therefore, we find that the moldings are precluded from classification in heading 4409, HTSUS, which is a heading intended to include only minimally processed wood products.
We further note that ENs for heading 4409, HTSUS, indicate that wood which has been surface worked beyond planing or sanding, other than painting, staining, or varnishing (e.g., veneered, polished, bronzed or faced with metal leaf) are precluded from being classified in heading 4409, HTSUS. Accordingly, if the only work that is performed to a wood product is painting, then the ENs indicate that the wood product can be classified in heading 4409, HTSUS, but if they are processed beyond painting they would be ineligible for classification in heading 4409, HTSUS. In this instance, the imported subject moldings have been coated with gesso. Counsel contends that the coating of gesso is a method of priming of the wood, which constitutes a form of painting the wood. It is stated that the type of primers used on San Benito’s products are the type that are commonly used for millwork before painting and are not a veneer. Counsel maintains that the gesso-type primer fits within the definition of a paint product and consequently, its application to San Benito’s imported wood moldings should not impact their classification.
Accordingly we must consider whether applying a gesso coating to the wood molding products is the equivalent of painting the wood. Therefore, we have conducted research on gesso to determine if coating wood with gesso would be the equivalent of painting wood. According to the web-site woodweb.com:
Today, gesso is a much-overlooked material that has a place in most woodworking and finishing shops. Besides being a multi-purpose product for doing repairs, filling open-grained woods and creating decorative finish, it is excellent for finishing MDF that will have an opaque finish. And it can be used to make castings and molds to duplicate intricate carvings. Among its advantages, it is fast-drying, has very little shrinkage and sands smooth. It also can be colored and finished with most conventional mediums and coatings…” See: http://www.woodweb.com/knowledge_base/A_Little_about_Gesso.html#sthash.mBnZhTpM.dpuf
Our research further indicates that gesso is a white, pasty medium generally that can be used for priming of canvases. Gesso can also be used to sculpt shapes that will later be painted over. Gesso can be made from glue and an inert white pigment such as chalk or gypsum. Because gesso does not lend itself well to three-dimensional sculpture, it usually used on surfaces with some sort of backing, such as a wood panel, to sculpt on.
According to the web site Oxford Dictionaries.com: a primer is “A substance used as a preparatory coat on previously unpainted wood, metal, or canvas, especially to prevent the absorption of subsequent layers of paint or the development of rust.” Conversely, a gesso coating has the consistency of putty or wood filler and is extruded onto the wood rather than brushed on like liquid primer. It forms to the contours of the wood filling in any nicks or imperfections. It also increases the size of the wood and can be used to create a more exact fit. It dries to a hard smooth surface coating, unlike primer. Therefore, because the wood moldings are coated with gesso, they are worked beyond painting, and thus in accordance with the EN’s for heading 4409, HTSUS, they are precluded from classification in heading 4409, HTSUS. See: http://www.wholesalehardwoodint.com/documents/PrimedPineFlyerforweb.pdf
Counsel agrees that barring classification in heading 4409, HTSUS, the only other appropriate heading for the subject is heading 4421, HTSUS, as other articles of wood. There is also no dispute that the instant merchandise is classifiable as “other” at the six-digit level of subheading 4421.90 HTSUS. Counsel suggests, however, that at the eight-digit level, the instant merchandise is classifiable in subheading 4421.90.94, HTSUS, as edge-glued lumber. Because it is not disputed that the moldings are edged-glued, in determining whether the moldings should be classified in subheading 4421.90.94, HTSUS, the issue that must be resolved is whether they can be considered as “lumber”.
Citing HQ 957673 dated July 14, 1995, Counsel offers a definition for the term “lumber” set forth in TSUS (Tariff Schedule of the United States) which provides as follows:
Lumber: A product of a sawmill or sawmill and planing mill derived from a log by lengthwise sawing which, in its original sawed condition has at least two approximately parallel flat longitudinal sawed surfaces, and which may be rough, dressed or worked as set forth below:
***
(IV) worked lumber is lumber which has been matched (provided with a tongued-and-grooved joint at the edges or ends), shiplapped (provided with a rabbeted or lapped joint at the edges), or patterned (shaped at the edges or on the faces to a patterned or molded form) on a matching machine, sticker, or molder.
Assuming the TSUS language regarding worked lumber is relevant here, we note that the controlling first paragraph of the definition requires that lumber must be a product of a sawmill or sawmill and planing mill derived from a log by lengthwise sawing, “which in its original sawed condition, has at least 2 approximately parallel flat longitudinal sawed surfaces and which may be… worked…” (Emphasis added). The instant molding products do not meet this definition for lumber because they are not sawn. Rather, these products are fully molded. Moreover, the products do not have parallel, flat longitudinal sawed surfaces. They have entirely molded surfaces, several of which are not even parallel or flat. In other words, the instant products cannot be viewed as “worked lumber” and classified in the subheading for “edged-glued lumber” because they have not first met the necessary requirements of being lumber.
In keeping with this analysis, in NY N005788 dated February 22, 2007, CBP considered whether stair treads made from boards with rounded edges could be classified in subheading 4421.90.94, HTSUS, as edge-glued lumber. CBP pointed out that the photograph of the end profile of the board showed that one edge was, in fact, rounded. Since the board had been further processed with a bull-nose edge, CBP ruled that it could not be classified as plain edge-glued lumber in subheading 4421.90.9400, HTSUS. Similarly in the instant case, the products are further manufactured than sawed planed and tongued and grooved. In as much as the imported moldings do not qualify as lumber, they cannot be classified as edge-glued lumber classified in subheading 4421.90.94, HTSUS. Consequently, we find that the subject imported wood molding products must be classified in the remaining provision of the HTSUS under consideration, which is the basket provision of subheading 4421.90.97, HTSUS, as Other articles of wood: Other: Other.
HOLDING:
Pursuant to GRI 1, the “Wood moldings for Blinds and Wood Shutter Components products” are classified in heading 4421, HTSUS. They are specifically provided for in subheading 4421.90.9780, HTSUSA (Annotated) which provides for: Other articles of wood: Other: Other: Other. The general column one rate of duty, for merchandise classified under this subheading is 3.3% ad valorem. Duty rates are provided for Internal Advice applicant’s convenience and subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division