HQ 952325: Application for further review of protest no. 3801-2-100216;classification of wood fiberboard moldings covered with paper;surface covered; edge covered; subheading 4411.39.0000;subheading 4421.90.9040

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 952325

                        February 26, 1993

CLA  CO:R:C:T  952325 BC

CATEGORY:  Classification

TARIFF:  4411.39.0000; 4421.90.9040

District Director
U.S. Customs Service
477 Michigan Avenue
Suite 200
Detroit, Michigan 48266

RE:  Application for further review of protest no. 3801-2-100216;
classification of wood fiberboard moldings covered with paper;
surface covered; edge covered; subheading 4411.39.0000;
subheading 4421.90.9040

Dear Sir:

     This responds to the above referenced protest and
application for further review submitted to us by memorandum of
July 23, 1992, from the Assistant District Director, Commercial
Operations Division (PRO-1-CO:CT GT; P2100216/TXTFRISC).

FACTS:

     The merchandise here involved is described as moldings of
various shapes and sizes made from medium density fiberboard of
wood.  The moldings are covered on the front surface, the edge,
and part of the back surface with a 30-gram paper.  The density
of the moldings is reported to be between 0.4 and 0.5 g/cubic cm. 
The moldings are stated to be used in the production of
furniture.  The manufacturer's literature shows that they are
used for various purposes, such as crown molding and baseboard.
Other information indicates that they can be used in the building
industry for such things as kitchen cabinets, wall moldings, and
door and window frames.

     Customs classified the moldings at issue under subheading
4421.90.9040, HTSUSA, which covers "Other articles of wood:
Other: Other . . . Other."  Customs liquidated the entry covered
by this protest at the then applicable duty rate of 3.5% ad
valorem.  PROTESTANT protests this liquidation and asserts that
the moldings should be classified as fiberboard moldings under
subheading 4411.39.0000, HTSUSA, or, alternatively, as parts of
furniture under 9403.90.8080, HTSUSA.

ISSUE:

     What is the proper classification of the paper covered
fiberboard moldings?

LAW AND ANALYSIS:

Alternate Claim

      PROTESTANT claims as an alternative classification
subheading 9403.90.8080, HTSUSA, which covers "Other furniture
and parts thereof: Parts: Other: Other . . . Other."  This claim
is without merit.  Moldings imported in various sizes and shapes
are material used for various purposes, as the manufacturer's
literature indicates.  The moldings are not recognizable as parts
of any particular product.  The fact that moldings can be used in
the manufacture of various kinds of furniture does not make them
furniture parts.  This alternate claim must be rejected.

Primary Claim

     PROTESTANT's primary claim is that the moldings should be
classified as wood fiberboard moldings under the appropriate
subheading that accurately describes the moldings's density. 
Since the moldings have been described as having a density
between 0.4 and 0.5 g/cubic cm, PROTESTANT asserts that the
appropriate subheading should be 4411.39.0000, HTSUSA, which
covers "Fiberboard of wood or other ligneous materials, whether
or not bonded with resins or other organic substances: Fiberboard
of a density exceeding 0.35 g/cubic cm but not exceeding 0.5
g/cubic cm: Other."

     Customs determined that the moldings were classifiable under
subheading 4421.90.9040, HTSUSA, as other articles of wood, as
above (see "FACTS").  In this protest, Customs cites New York
Ruling Letter 858725, dated January 8, 1991, as precedent for the
proposition that fiberboard moldings that are surface and edge
covered with paper are classified under subheading 4421.90.9040,
HTSUSA.  In that case, Customs stated the following regarding the
moldings there at issue: "The MDF [medium density fiberboard]
moldings in question have been laminated with decorative paper
not only on the surface but also on the edges.  Therefore, they
cannot be considered material fiberboard 'surface covered' as
provided for under heading 4411, HTS."

     The EN's for heading 4411 (Explanatory Notes, Harmonized
Commodity Description and Coding System, Vol. 2, p. 631) provide
the following: 

     Fibreboard remains classified in this heading whether
     or not it has been mechanically worked, surface worked,
     or covered, e.g., with metal, plastics, paint, paper.
     In addition, fiberboard may be worked to form the
     shapes provided for in heading 44.09, 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.  

     While heading 4411 is general in its terms, covering
generally wood fiberboard of specified densities, within its
scope are the various shapes provided for under heading 4409,
which covers articles of solid wood.  These shapes include
moldings.  Thus, moldings made of solid wood are classified under
heading 4409, while moldings made of wood fiberboard are
classified under heading 4411, according to the density of the
fiberboard.

     The central question here concerns the significance of the
paper covered edges.  In this protest, Customs contends that
because the moldings are edge covered, they cannot be classified
under heading 4411 and must, therefore, be classified under
heading 4421 covering other articles of wood.  That is, it is the
edge covering, not the surface covering, that causes the moldings
to be classified in 4421.

     The definition of "surface covered" is set forth in
Additional U.S. Note 1(c) of Chapter 44, HTSUSA:

     The term "surface covered," as applied to the articles
     of headings 4411 and 4412, means that one or more
     exterior surfaces of a product have been treated with
     creosote or other wood preservatives, or with fillers,
     sealers, waxes, oils, stains, varnishes, paints or
     enamels, or have been overlaid with paper, fabric,
     plastics, base metal, or other material.

     In this protest, Customs contends that "surface covered"
applies only to the front and back surfaces.  Since the moldings
at issue are covered also on the edges, they are said to be "not
surface covered."  Since they are not surface covered, they do
not fall within the language of the above quoted EN: "Fiberboard
remains classified in this heading whether or not it has been
mechanically worked, surface worked, or covered, e.g., with
metal, plastics, paint, paper."  Having been determined to fall
outside the language of the EN, the edge covered moldings, it is
reasoned, are not within the scope of heading 4411 and,
therefore, must be classified under heading 4421, the provision
for other articles of wood. 

     We disagree with this analysis.  The EN is clearly intended
to include fiberboard that has been subjected to various
processes.  Fiberboard is to remain classified under the heading
whether mechanically worked or not, whether surface worked or
not, and whether covered with metal, plastic, paint, or paper or
not.  In addition, the fiberboard may be worked to form the
shapes allowed under heading 4409; it can also be curved,
corrugated, perforated, cut or formed to shapes other than square
or rectangular, or submitted to any other operation provided it
does not give the fiberboard the character of articles of other
headings (such as identifiable parts of furniture that would be
classified in Chapter 94, HTSUSA).

     Given this broad scope, it is inconsistent to posit that
edge covering must be accorded such rigidly precise significance. 
Moreover, the EN does not specify that fiberboard that is covered
with metal, plastic, paint, or paper must be "surface covered" -
and only surface covered - with such materials in order to fall
within the scope of the heading.  The EN uses the term "covered,"
not "surface covered."  The EN does not specify that if the
moldings are more than surface covered, or other than surface
covered, they cannot be classified under the heading.  

     An examination of heading 4411 yields the conclusion that
surface and/or edge covered moldings should be classified
thereunder.  The heading is divided into four major parts, the
first three parts are based on the density of the fiberboard and
the fourth part is an "other" provision.  Each of these major
parts is further subdivided into two subparts: 1) "Not
mechanically worked or surface covered" and 2) "Other."  This
means that fiberboard that is not surface covered can be
classified under the former subpart (if not mechanically worked)
and fiberboard that is surface covered, or other than surface
covered, can be classified under the latter subpart.  For
purposes of classification under heading 4411, whether the
moldings are concluded to be "surface covered and edge covered"
or "other than surface covered" is immaterial.  (See Arthur J.
Humphreys v. United States, CAFC Appeal No. 92-1032, decided
August 24, 1992; 26 Cust. Bull., No. 39, p. 21, 32, Sept. 23,
1992, concluding that hardboard covered with creosote and
overlaid with base metal or otherwise processed would be more
than face finished and, thus, would be other than face finished. 
("Face finished" is the TSUS equivalent to the HTSUS definition
of "surface covered."))

     Based on the foregoing, the classification of the moldings
at issue is as follows:  The moldings are between 0.4 and 0.5
g/cubic cm and, therefore, will be classified under the
subheading covering fiberboard between 0.35 (exclusive) and 0.5
(inclusive) g/cubic cm.  Since the moldings are both mechanically
worked and either surface covered (in addition to being edge
covered) or other than surface covered, they cannot be classified
under the first subdivision covering fiberboard that is "not
mechanically worked or surface covered."  Since the moldings are
mechanically worked and either surface covered or other than
surface covered, they are properly classified under the second
subdivision covering "Other."  This subheading is 4411.39.0000,
HTSUSA.

     Regarding NYRL 858725, in view of the foregoing analysis,
its reasoning must be addressed.  As stated hereinbefore, the
ruling concluded that because the fiberboard moldings were edge
covered, in addition to being covered on the surface, "they
cannot be considered material fiberboard 'surface covered' as
provided for under heading 4411, HTS."  As we pointed out above,
heading 4411 covers merchandise that is "Not mechanically worked
or surface covered" and "Other."  The fact that fiberboard
moldings are concluded to be "not surface covered," or "other
than surface covered," or "more than surface covered" does not
necessarily preclude their classification under heading 4411. 
New York Ruling Letter 858725 will be revoked.

HOLDING:

     The wood fiberboard moldings at issue, mechanically worked
as well as surface and edge covered with paper, are classifiable
under subheading 4411.39.0000, HTSUSA.  The rate of duty is
"Free."

     You are instructed to approve the protest.  A copy of this
ruling should be attached to the CF 19 Notice of Action.

                               Sincerely,




                               John Durant, Director
                               Commercial Rulings Division