CLA R:C:T 957168 ch
Mr. Thomas Mattina
Area Director, JFK Area
U.S. Customs Service
Building #77, JFK Airport
Jamaica, NY 11430
RE: Internal Advice 47/94; Tariff Classification of Composition
Cork Sheets
Dear Mr. Mattina:
This is in response to your memorandum, dated August 23,
1994, requesting internal advice concerning the tariff
classification of composition cork sheets under the Harmonized
Tariff Schedule of the United States (HTSUS). The request was
submitted by Serko & Simon, on behalf of their client, APS Supply
Company.
FACTS:
The merchandise consists of composition cork sheets. The
sheets are usually 2 x 3 feet in size and from 3/8 to 1 inch
thick. The cork is agglomerated, with a plastic resin as a
binder. Two products are at issue: standard cork and self-expanding cork. Standard cork is used as an underlay and
insulation material beneath flooring and may be found in, for
example, gymnasium floors and ice rinks. Self-expanding cork is
used as an expansion joint filler for concrete and is utilized in
the construction of dams, sewage treatment plants and other
structures. Self-expanding cork possesses a glue which dissolves
when exposed to heat and water, thereby allowing the cork to
expand.
ISSUE:
What is the proper classification for the composition cork
sheets?
LAW AND ANALYSIS:
The cork sheets are classifiable within heading 4504, HTSUS,
which provides for agglomerated cork (with or without a binding
substance) and articles of agglomerated cork. At the subheading
level, the relevant provisions are set forth below:
4504.10 Blocks, plates, sheets and strip; tiles
of any shape; solid cylinders, including
disks:
4504.10.30 Floor coverings
4504.10.40 Wallcoverings, backed with
paper or
otherwise reinforced
4504.10.50 Other
Counsel contends that the cork sheets are classifiable either
within subheading 4505.10.3000, HTSUS, as floor coverings; or
within subheading 4504.10.4000, HTSUS, as wallcoverings, backed
with paper or otherwise reinforced.
The term "floor coverings" is not defined within Chapter 45,
HTSUS. However, Chapter 57, HTSUS, encompasses carpets and
textile floor coverings. Note 1, to Chapter 57 provides that:
For the purposes of this chapter, the term "carpets and
other textile floor coverings" means floor coverings in
which textile materials serve as the exposed surface of the
article when in use and includes articles having the
characteristics of textile floor coverings but intended for
use for other purposes.
Moreover, Chapter 57, Note 2, states that "this chapter does not
cover floor covering underlays." Thus, textile floor coverings
must have an exposed surface when in use. In addition, floor
covering underlays are not regarded as floor coverings. While
these notes do not apply specifically to heading 4504, in the
absence of evidence to the contrary, we are of the opinion that
they shed some light on how the term "floor covering" should be
interpreted elsewhere in the tariff schedule.
Furthermore, in prior decisions in this area, we have
concluded that the legal notes to Chapter 57 comport with the
common and commercial meaning of the phrase "floor coverings."
In Headquarters Ruling Letter (HRL) 087649, dated October 26,
1990, it was stated:
In order to determine which heading most specifically
describes the polyurethane foam underlay, we must
decide if the underlay may be considered a floor
covering. Although the polyurethane foam underlay
material covers floorings when used as carpet underlay,
we do not believe it falls within the common meaning of
floor coverings. Floor coverings are commonly thought
to be articles such as carpets, rugs, mats, etc. These
are articles which cover a floor area and which are
open to view. Carpet underlay, on the other hand, is
not seen, but is under the perceived floor covering,
i.e., the carpet.
For this reason, the underlay was not regarded as a plastic floor
covering of heading 3918, HTSUS.
Similarly, in HRL 088142, dated January 18, 1991, concerning
the classification of anti-slip mesh, we observed:
Heading 3918, HTSUS provides for "floor coverings." We
believe that the mesh in this case is not properly
considered a "floor covering." While this product may cover
the floor, the goods encompassed by heading 3918, HTSUS, are
those which have an exposed surface with which pedestrian
and other traffic has contact.
Thus, at various places in the tariff schedule the term "floor
covering" has either been defined or construed to mean a covering
with an exposed surface when in use.
However, counsel submits that "floor coverings" of heading
4504 should be distinguished from "floor coverings" described
elsewhere in the HTSUS. Counsel deems it significant that the
Notes to Chapter 57 were restricted in scope to goods of the
Chapter. Hence, there was no intent to apply the notes elsewhere
in the Nomenclature. Citing lexicographic sources for the
individual terms "floor" and "coverings," it is contended that a
"floor covering" describes any material providing "protection to
the lower part of a room or other hollow structure." As the cork
sheets are used for this purpose, counsel argues that they fall
within the plain meaning of the phrase "floor coverings."
In addition, our attention is directed to the Explanatory
Note to heading 4504, at page 649, which states that:
Agglomerated cork is manufactured by agglomerating crushed,
granulated or ground cork generally under heat and pressure
either:
(1) With an added binding substance (e.g., unvulcanised
rubber, glue, plastics, tar, gelatin), or
(2) Without an added binding substance at a temperature of
about 300 degrees C. In this latter case the natural
gum in the cork acts as a binder.
Agglomerated cork of this heading may be impregnated (e.g.,
with oil), or reinforced by backing with paper or cloth
provided it does not have the character of linoleum or
similar materials classified in heading 59.04.
Agglomerated cork retains most of the properties of natural
cork, and in particular is an excellent heat-or sound-insulating material. In many cases, however, the addition
of the binders required for the agglomeration modifies some
of the characteristic features of the cork, in particular
the specific gravity and the tensile or crushing strengths.
In addition, agglomerated cork has the advantage of being
suitable for direct moulding to any size or shape.
Agglomerated cork is used to make much the same range of
products as those referred to under heading 45.03 but,
whereas it is rarely used for making stoppers, it is used
more often than natural cork for crown cork discs.
Agglomerated cork is also used largely, and in preference to
natural cork, for building materials such as panels, blocks
and tiles, and as moulded shapes (cylinders, shells, etc.),
for insulating or protecting hot water or steam piping, for
lining petrol pipelines, for expansion jointing in the
construction industry and for the manufacture of filters.
(Emphasis added).
The Explanatory Note specifies that agglomerated cork is used for
various building materials. From this premise, counsel reasons
that the subheading providing for floor coverings should be read
so as to include agglomerated cork used in constructing floors
and other structures. In support of this reading, counsel notes
the exclusion for agglomerated cork which has the character of
linoleum. Thus, certain coverings with exposed surfaces are
excluded from heading 4504. This fact is offered as evidence
that floor coverings of Chapter 45 should be distinguished from
floor coverings classified elsewhere.
Counsel proffers an expansive definition of the term "floor
coverings" which is at odds with commercial reality. While
conceding that the composition cork sheets are placed beneath
flooring, counsel contends that they remain floor coverings for
the reason that they lie over another surface. Under this
interpretation, we must reach the anomalous conclusion that
layered surfaces constitute multiple floors; or, in the
alternative, we must be prepared to accept that a surface is
"covered" by a material placed beneath it. We are of the opinion
that it is more accurate to describe the cork sheets, when used
in this fashion, not as a "floor covering," but as an underlay or
insulation material.
Furthermore, it should be noted that the international
Harmonized System is coded to six digits. The applicable section
and chapter notes were drafted with the six-digit Nomenclature in
mind. Consequently, the legal notes to Chapter 57 were made
without reference to the eight-digit breakout for floor coverings
contained within heading 4504. Accordingly, there was no
conscious intent to distinguish "floor coverings" of Chapters 57
and 45.
In addition, the allusion to the Explanatory Note to heading
4504 is not persuasive. The Explanatory Note indicates that
agglomerated cork used for building materials is classified in
the heading. However, the Note also states that it covers a
range of products similar to those set forth in the Explanatory
Note to heading 4503 (e.g., corks, stoppers, bath mats and table
mats). Hence, articles of heading 4504 include a wide variety of
goods. In addition, the National Import Specialist for this line
of merchandise possesses representative samples of agglomorated
cork flooring with an exposed surface. Consequently, subheading
4504.10.3000, HTSUS, will not be an empty provision if
agglomerated cork sheets used for building materials are
classified elsewhere in the heading. Therefore, there is no need
to alter the meaning of the term "floor coverings" to reflect the
scope of heading 4504.
The Explanatory Note to heading 4504 also states that the
heading includes agglomerated cork "impregnated (e.g., with oil),
or reinforced by backing with paper or cloth provided it does not
have the character of linoleum." By way of contrast, it should
be noted that linoleum is provided for, defined and described in
the Explanatory Note to heading 5904, at pages 816 and 817, as
follows:
Linoleum consists of a textile backing (usually jute canvas
but sometimes cotton, etc.) coated on one side with a
compact paste composed of oxidized linseed oil, resins and
gums and fillers (usually ground cork, but sometimes sawdust
or wood flour)...
* * *
Linoleum is made in various thicknesses and is used as floor
coverings and also as coverings for walls, shelves, etc.
(Emphasis added).
As this language indicates, if the essential character of the
composite material is cork, it is classified in heading 4504.
However, if the essential character of the composite material is
imparted by the textile backing, it may be regarded as linoleum
of heading 5904. Accordingly, such composites are classified on
the basis of their material composition and not on their status
as floor coverings.
In view of the foregoing, we are of the opinion that "floor
coverings" must possess an exposed surface when in use for the
purposes of heading 4504. The instant goods do not feature an
exposed surface. Accordingly, subheading 4504.10.3000, HTSUS, is
inapplicable.
It has also been suggested that the cork sheets are
classifiable in subheading 4504.10.4000, HTSUS, which provides
for wallcoverings, backed with paper or otherwise reinforced.
Specifically, counsel notes that the self-expanding cork may be
used as an expansion joint within the walls of various
structures.
The term "wallcoverings" is not discussed in the applicable
section, legal and Explanatory Notes to Chapter 45 or heading
4504, as the breakout within heading 4504 for these goods occurs
at the eight-digit classification level. However, Chapter 39
(Plastics and Articles Thereof), Note 9, states:
For the purposes of heading No. 3918, the expression "wall
or ceiling coverings of plastics" applies to products in
rolls, of a width not less than 45 cm, suitable for wall or
ceiling decoration, consisting of plastics fixed permanently
on a backing of any material other than paper, the layer of
plastics (on the face side) being grained, embossed,
colored, design-printed or otherwise decorated. (Emphasis
added).
Thus, "wall coverings of plastics" refers to certain goods
suitable for wall decoration.
Similarly, Chapter 48 (Paper and Paperboard; Articles of
Paper Pulp, of Paper or of Paperboard), Note 8, provides that:
For the purposes of heading No. 48.14, the expression
"wallpaper and similar wall coverings" applies only to:
(a) Paper in rolls, of a width of not less than 45 cm and
not more than 160 cm, suitable for wall or ceiling
decoration:
(i) Grained, embossed, surface-colored, design-printed
or otherwise surface-decorated (e.g., with textile
flock), whether or not coated or covered with
transparent protective plastics;
(ii) With an uneven surface resulting from the
incorporation of particles of wood, straw, etc.;
(iii) Coated or covered on the face side with
plastics, the layer of plastics being
grained, embossed, colored, design-printed or
otherwise decorated; or
(iv) Covered on the face side with plaiting material,
whether or not bound together in parallel strands
or woven;
(b) Borders and friezes, of paper, treated as above,
whether or not in rolls, suitable for wall or ceiling
decoration;
(c) Wall coverings of paper made up of several panels, in
rolls, or sheets, printed so as to make up a scene,
design or motif when applied to a wall.
Products on a base of paper or paperboard, suitable for use
both as floor coverings and as wall coverings, are to be
classified in heading No. 48.15.
(Emphasis added).
Hence, "wall coverings" of paper or paperboard must be suitable
for decorative purposes.
Based on the foregoing, we conclude that the term "wall
covering" is used elsewhere in the tariff to refer to goods
suitable for decorative purposes. We are of the opinion that the
term "wallcoverings" should be interpreted in a consistent manner
throughout the tariff, absent evidence to the contrary. For
reasons stated above, there is no compelling reason to
distinguish between "wallcoverings" of heading 4504 and "wall
coverings" as defined elsewhere in the tariff. The self-expanding cork is used as an expansion joint and does not serve a
decorative purpose. Accordingly, subheading 4504.10.4000, HTSUS,
does not describe the merchandise.
As the agglomerated cork sheets are not described more
specifically elsewhere in the heading, classification devolves to
subheading 4504.10.5000, HTSUS.
HOLDING:
The cork sheets are classifiable as agglomerated cork (with
or without a binding substance) and articles of agglomerated
cork: blocks, plates, sheets and strip; tiles of any shape; solid
cylinders, including disks: other, under subheading 4504.10.5000,
HTSUS. Pursuant to Section 141.69 of the Customs Regulations (19
CFR 141.69), the rate of duty applicable to this merchandise is
the rate in effect at the time of entry. Entries of the cork
sheets made in 1994 were dutiable at 18% ad valorem. The
applicable rate of duty for entries made on or after January 1,
1995 is Free, in accordance with Presidential Proclamation 6763
of December 23, 1994 (see Vol. 60 Federal Register p. 1007, dated
January 4, 1995).
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, this decision should be
mailed by your office to the protestant no later than 60 days
from the date of this letter. Any reliquidation of an 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, Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division