CLA-2 CO:R:C:M 955503 KCC
Regional Commissioner of Customs
c/o Protest and Control Section
6 World Trade Center, Room 762
New York, New York 10048-0945
RE: Protest 1001-93-103514; bitumen-impregnated fiberboard; EN
44.11; NY 843212; 6807.90.00; other articles of asphalt; EN
68.07
Dear Sir:
This is in reference to Protest 1001-93-103514, which pertains
to the tariff classification of bitumen-impregnated fiberboard
under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The article at issue is bitumen-impregnated fiberboard which
is used as an expansion joint in concrete sidewalks, roads, etc.
The bitumen-impregnated fiberboard is manufactured from wood fibers
and chips, then saturated in an asphalt emulsion and dried.
According to the invoice and literature enclosed with the protest,
the bitumen-impregnated fiberboard has various thicknesses and
measures 1220 mm by 3050 mm.
The entry of the bitumen-impregnated fiberboard was liquidated
on May 7, 1993, under subheading 6807.90.00, HTSUS, as other
articles of asphalt. In a protest timely filed on June 3, 1993,
the protestant contends that the bitumen-impregnated fiberboard is
classified under subheading 4411.99.00, HTSUS, as other fiberboard
of wood.
The competing subheadings are:
4411.99.00 Fiberboard of wood or other ligneous materials,
whether or not bonded with resins or other organic
substances...Other...Other.
6807.90.00 Articles of asphalt or of similar material (for
example, petroleum bitumen or coal tar
pitch)...Other....
ISSUE:
Is the bitumen-impregnated fiberboard classified under
subheading 4411.99.00, HTSUS, as other fiberboard of wood, or under
subheading 6807.90.00, HTSUS, as other articles of asphalt?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is governed
by the General Rules of Interpretation (GRI's). GRI 1, HTSUS,
states, in part, that "for legal purposes, classification shall be
determined according to terms of the headings and any relative
section or chapter notes...."
This office is of the opinion that the bitumen-impregnated
fiberboard is classified under heading 4411, HTSUS. In
understanding the language of the HTSUS, the Harmonized Commodity
Description and Coding System ENs may be utilized. The ENs,
although not dispositive, are to be used to determine the proper
interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127,
35128 (August 23, 1989). EN 44.11 (pg. 631), states that:
Fibreboard is most often manufactured from wood chips which
have been mechanically defibred (defibrated) or steam exploded
or from other defibred ligno-cellulosic material (obtained
e.g., from bagasse or bamboo)...Impregnating or other agents
may also be added during or after manufacture of the board to
give an extra property, e.g., impermeability to water or
resistance to rot, insect attack, fire or the spread of
flame....
In the instant case, the product is wood fiberboard which has
been saturated/impregnated with asphalt/bitumen after its
manufacture. Pursuant to EN 44.11, the bitumen-impregnated
fiberboard is properly classified under heading 4411, HTSUS. See,
New York Ruling (NY) 843212 dated July 28, 1989, which classified
similar products under heading 4411, HTSUS.
No information was submitted on the density of the fiberboard,
but we are of the opinion that it is a low density board. Based
on the information presented on the submitted invoices, we have
calculated the density of the fiberboard as approximately 0.3
g/cm3. This calculation agrees with the density stated in the
submitted report from the Norwegian Pulp and Paper Research
Institute. Therefore, the bitumen-impregnated fiberboard is
classified under subheading 4411.91.00, HTSUS, as other fiberboard
of a density not exceeding 0.35 g/cm3, not mechanically worked or
surface covered.
Classification as an asphalt product under subheading
6807.90.00, HTSUS, is incorrect. EN 68.07 (pg. 903) states:
This heading covers articles made from natural asphalt or
bitumen, coal tar pitch, petroleum bitumen, bituminous
mixtures, etc. (see heading 27.08, 27.13, 27.14 or 27.15).
These articles usually contain fillers such as sand, slag,
chalk, plaster, cement, talc, sulphur, asbestos fibre, wood
fibre, sawdust, waste cork and natural resins.
Clearly, the products classified under subheading 6807.90.00,
HTSUS, are asphalt products with fillers such as wood fiber. The
bitumen-impregnated fiberboard is not an asphalt product with a
filler of wood fibers. As stated previously, the bitumen-
impregnated fiberboard is wood fiberboard which is impregnated with
asphalt. Therefore, classification under subheading 6807.90.00,
HTSUS, is incorrect.
We note that Customs Laboratory Report No. 2-92-31449-001
dated July 14, 1992, found that a sample piece of the bitumen-
impregnated fiberboard was composed of 53.5% asphalt and 46.5%
fiberboard. However, in classifying this product, the issue does
not involve a percentage breakdown of the product, but an analysis
of the construction of the product. The product at issue is wood
fiberboard which, after manufacture, is impregnated with bitumen.
Therefore, it is classified under subheading 4411.91.00, HTSUS.
HOLDING:
The bitumen-impregnated fiberboard is classified under
subheading 4411.91.00, HTSUS, which provides for other fiberboard
of a density not exceeding 0.35 g/cm3, not mechanically worked or
surface covered.
Since reclassification of the merchandise as indicated above
will result in the same rate of duty as claimed by the protestant,
the protest should be GRANTED. In accordance with Section 3A(11)(b)
of Customs Directive 099 3550-065, dated August 4, 1993, Subject:
Revised Protest Directive, this decision should be mailed, with the
Customs Form 19, by your office to the protestant no later than 60
days from the date of this letter. Any reliquidation of the entry
in accordance with the decision must be accomplished prior to
mailing of the decision. Sixty days from the date of the decision
the Office of Regulations and Rulings will take steps to make the
decision available to Customs personnel via the Customs Rulings
Module in ACS and the public via the Diskette Subscription Service,
Lexis, Freedom of Information Act, and other public access
channels.
Sincerely,
John Durant, Director