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HQ 961157




September 28, 1999

CLA-2 RR:CR:GC 961157 HMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 4411.19.40

Port Director of Customs
40 S. Gay St.
Baltimore, MD 21202

RE: Protest 1303-97-100332; Fiberboard of Wood or Other Ligneous Materials, Whether or Not Bonded with Resins or Other Organic Substances

Dear Port Director:

This is our decision on Protest 1303-97-100332, filed against your classification of “Duraplac Markerboard,” also referred to as “Duratex Markerboard.” The entry under protest was liquidated on May 9, 1997, and this protest timely filed on July 15, 1997. In preparing this ruling consideration was given to arguments presented by the protestant at a meeting on August 24, 1999.

FACTS:

The merchandise under protest is a board made of fiberboard in sheets measuring 4' x 6' or 4' x 8'. The surface of the product is composed of acrylic melanine, which allows for the board to be written upon with an erasable felt tip pen (not imported with the merchandise) and wiped off easily with a paper towel.

The entry was liquidated under a provision for other fiberboard of wood or other ligneous materials, whether or not bonded with resins or other organic substances under subheading 4411.19.40 of the Harmonized Tariff Schedule of the United States (HTSUS). Counsel for the protestant claims that the merchandise is described instead by subheading 9610.00.00, HTSUS, as slates and boards, with writing or drawing surfaces, whether or not framed.

The 1997 HTSUS provisions under consideration are as follows:

4411 Fiberboard of wood or other ligneous materials, whether or not bonded with resins or other organic substances: Fiberboard of a density exceeding 0.8 g/cm³: 4411.19 Other:
Other:
4411.19.40 Other.

9610.00.00 Slates and boards, with writing or drawing surfaces, whether or not framed.

ISSUE:

Whether the markerboards are classifiable as slates and boards, with writing or drawing surfaces, whether or not framed under subheading 9610.00.00, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

Chapter 44, note 1(q), HTSUS, provides that Chapter 44 does not cover articles of Chapter 96 (for example, smoking pipes and parts thereof, buttons, pencils) excluding bodies and handles, of wood, for articles of heading 9603. Accordingly, if the markerboards are described by heading 9610, they are excluded from classification under heading 4411.

Chapter 44, note 4, states that

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.

Counsel argues that the markerboards are classifiable under subheading 9610.00.00, HTSUS, because the boards are designed to be writing or drawing boards. To support his argument that the merchandise has unique characteristics, literature was provided indicating that the markerboard has a special topcoat. The merchandise goes through a special painting process to eliminate minor imperfections in the surface, such as pinholes, dust particles, or tiny scratches that render the markerboard defective.

The Harmonized Commodity Description And Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the EN’s should always be consulted. See T.D. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

EN 44.11, at page 680, states that the products of this heading remain classified herein whether or not they have been worked to form the shapes provided for in respect of the goods of heading 44.09, curved, corrugated, perforated, cut or formed to shapes other than square or rectangular and whether or not they have been surface or edge worked, or coated or covered (e.g., with textile fabric, plastics, paint, paper or metal) or submitted to any other operation, provided these operations do not thereby give such products the essential character of articles of other headings.

EN 96.10, at page 1734, states that heading 9610 covers slates and boards, clearly designed to be used for writing or drawing with slate pencils, chalks, felt or fibre tipped markers (e.g., school children’s slates, blackboards and certain notice boards). The EN further states that these articles, framed or not, may be of slate, including agglomerated slate, or may consist of any material (wood, paperboard, textile material, asbestos cement, etc.) covered on one or both sides with a preparation of powdered slate or any other coating suitable for writing on, or sheeting of plastics. Boards or slates may bear permanent markings (lines, squares, lists of commodities, etc.) and may incorporate counting frames.

It is our view that the markerboards in this instance are described by heading 4411, HTSUS. The evidence presented shows that the subject boards are submitted to a painting operation that makes them suitable for writing. However, this operation, we find, does not make the board articles of heading 9610, HTSUS. The boards are subjected to an operation which is not substantially different from fiberboard imported in 4 x 6 or 4 x 8 sheets. There is no way of differentiating the subject merchandise from regular fiberboard. As advanced by the ENs, the Duraplac markerboard remains classified in heading 4411, HTSUS, whether or not it has been worked or coated or covered by a special paint (in this regard, see American Hardboard Association [AHA] standard for Prefinished Hardboard Paneling, Table 1, and 3.8 (c), stain resistance). In its imported condition, of 4' x 8' and 4' x 6', the merchandise is not clearly designed to be used for writing or drawing.

In contrast, we note HQ 954862, dated October 19, 1993, which involved a combination bulletin board and writing board. The writing board portion was made of a “smooth, hard, reusable writing surface (white “Permo-Delta”). Customs determined that the writing board component was prima facie classifiable under subheading 9610.00.00. The writing boards of HQ 954862, which was part of a 12" x 24" bulletin board was a small board clearly designed solely for writing or drawing.

HOLDING:

The Duraplac’s markerboards are classifiable under subheading 4411.19.40, HTSUS, as “Fiberboard of wood or other ligneous materials, whether or not bonded with resins or other organic substances: Fiberboard of a density exceeding 0.8 g/cm³: Other: Other: Other.”

This protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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