CLA-2 CO:R:C:T 950056 KWM
District Director, Seattle District
United States Customs Service
909 First Avenue, Room 2039
Seattle, Washington 98174
RE: Protest number 3001-91-100435; Protest allowed; Bulletin Board Cork; Linoleum.
Dear Sir:
This is in response to your request for further review of Protest number 3001-91100435,
regarding the tariff classification of merchandise invoiced as bulletin board cork. After review
of the documents submitted, and consultation with Customs commodity experts at the New
York
Seaport, we find that the protest should be allowed.
FACTS:
The merchandise at issue is described as either linoleum or bulletin board cork (hereafter
"linoleum"). The samples received with the protest documents are representative of the
material
normally sold in linear rolls. The sample is a stiff but bendable material approximately 1/4
inch
thick. The Protestant's submission indicates that the sample is composed of:
45% Cork
40% Linseed Oil
8% Pigments
7% Chalk
Protestant's sales literature states that the material is available in rolls approximately 95 feet
long
and 48 inches wide. Two thicknesses, or gauges, are available, 1/4 inch and 1/8 inch. The
sales
literature details the product's features for use as a bulletin board material: Ease of
maintenance,
self healing surface, color selection, etc. The material is also backed with burlap for a "strong,
lasting foundation as well as dimensional stability..
Protestant entered the merchandise through the port of Seattle as linoleum of heading
5904, Harmonized Tariff Schedule of the United States (HTSUSA). A Notice of Action (CF
19)
was issued proposing that the goods be reclassified under HTSUSA heading 4504. The goods
were liquidated under heading 4504, HTSUSA, and this protest was timely filed on April 29,
l99l. It has been forwarded to Customs Headquarters for further review under the authority of
Section 174.21, et seq, of the Customs Regulations.
ISSUE:
Is the merchandise classified as linoleum of heading 5904, HTSUSA, or as a cork product
of heading 4504, HTSUSA?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). The
systematic detail of the harmonized system is such that virtually all goods are classified by
application of GRI l, that is, according to the terms of the headings of the tariff schedule and
any
relevant Section or Chapter Notes.
The Customs Service has, in the past, taken the position that goods classified as linoleum
in HTSUSA heading 5409 must be used as a floor or wall covering. Since the imported
product
was not used in such a manner, it could not be considered linoleum under the HTSUSA.
Customs' commodity experts at the New York Seaport have reviewed the HTSUSA
provisions for linoleum, and the accompanying Explanatory Notes, and have concluded that
we
should no longer limit "linoleum"by its use. Linoleum is clearly described as having a specific
composition:
.. a textile backing (usually jute canvas but sometimes cotton, etc.) coated on one side
with a compact paste composed of oxidised linseed oil, resins and gums and fillers
(usually ground cork, but sometimes sawdust or wood flour); in most cases, coloured
pigments are also added to the paste...
Explanatory Notes to heading 59, HTSUSA. We note that the Explanatory Note language is
note
legally binding. However, we have stated that Customs will consult the Explanatory Notes in
almost every instance. When we are examining the scope of an international heading, as we
are
in this case, the Explanatory Notes are particularly instructive. The New York Seaport
suggests,
and we agree, that the wording of the tariff and notes indicates that all material having the
"character of linoleum" (i.e., the linoleum mixture described in the heading 59, HTS,
Explanatory Notes) should be classified in heading 5904. We find that the description of
linoleum
found in the Explanatory Note to heading 5904, HTSUSA, is the most concise description of
the
term, and accurately defines the scope "linoleum" for classification purposes. To exclude
certain
merchandise based on use would improperly restrict the scope of the heading.
HOLDING:
The protest should be allowed.
The merchandise at issue, a combination of cork, linseed oil, chalk and pigments, backed
with burlap, is within the scope of the term "linoleum" in heading 5904, HTSUSA.
Specifically,
it falls under subheading 5904.10.0000, HTSUSA. The applicable rate of duty is 4.2 percent
ad
valorem.
A copy of this letter should be attached to the CF 19 notice of action to be returned to
the protestant.
Sincerely,
John A. Durant, Director