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HQ 955503

March 24, 1994
CLA-2 CO:R:C:M 955503 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 4411.91.00

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

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