CLA-2 R:C:T 957953 BC
Carole Graves
District Director of Customs
U.S. Customs Service
200 St. Paul Place
Baltimore, MD 21202
RE: Further review of protest no. 1303-93-100322; classification of rolls and sheets made of agglomerated cork and a polyurethane binder; synthetic rubber; Legal Note 1, Chapter 40, HTSUSA; Legal Note 4; classification of cork tiles; backed with paper; reinforced
Dear Ms. Graves:
This is a decision on an application for further review of protest no. 1303-93-100322, timely filed on December 13, 1993, by Daniel K. Astin, Esq., Donohue & Donohue, on behalf of Universal Cork, Inc. The protest objects to your classification of agglomerated cork sheets, rolls, and tiles.
FACTS:
This protest covers five entries made in March, June, and July, 1993, and liquidated on October 15, 1993. The entries cover two cork products. One product consists of granulated cork which has been agglomerated under heat and pressure with an added binder (or binding agent). It is imported in rolls and sheets. The binder is a prepolymer of polyurethane. Customs classified the cork rolls and sheets in subheading 4504.10.5000, which provides for blocks, plates, sheets, and strip of agglomerated cork, other. PROTESTANT contends that the rolls/sheets are classifiable in subheading 4504.10.1000, which provides for vulcanized sheets and slabs wholly of ground or pulverized cork and rubber.
The second product is tile of agglomerated cork that measures 12 inches square. There are two types. The first is identified as style #10260. PROTESTANT has submitted a sample of it with this protest. It is a dark cork tile with an adhesive applied to the back surface. The adhesive is covered with paper to protect it until the tile is used as designed and to prevent the
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tiles from sticking from sticking together or to other surfaces before use. The paper is removed during installation of the tiles to expose the adhesive and is then discarded.
The second type of cork tile is described as the “CS Series.” These tiles consist of two sheets of agglomerated cork laminated together. A sample was submitted with this protest, identified as style #CS35K-Red. One sheet of the sample tile consists of uniform, small ganules. The outer surface of this sheet has been dyed red. The other sheet is made of large agglomerated cork pieces, constructed in such a way as to produce holes and large spaces throughout the sheet. When laminated together, the red bottom sheet shows through these holes and spaces, producing a decorative effect.
Customs classified the tiles in subheading 4504.10.5000, HTSUSA, as tiles of agglomerated cork, other. PROTESTANT contends that they are classifiable in subheading 4504.10.40, HTSUSA, as wallcoverings, backed with paper or otherwise reinforced.
ISSUE:
(1) What is the proper classification for the rolls and sheets made of agglomerated cork and a polyurethane binding agent?
(2) What is the proper classification for the two types of corkd tile at issue?
LAW AND ANALYSIS:
Initially, we note that classification of the cork products at issue in heading 4504, HTSUSA, is hot in dispute. That heading provides for agglomerated cork (with or without a binding substance) and articles of agglomerated cork. The dispute in this protest concerns classification at the subheading level.
ISSUE 1: Classification of cork rolls and sheets
As stated in the “FACTS” section, Customs classified these products in subheading 4504.10.5000, which provides for blocks, plates, sheets, and strip of agglomerated cork, other. PROSTESTANT contends that they are classifiable in subheading 4504.10.1000, which provides for vulcanized sheets and slabs wholly of ground or pulverized cork and rubber. Specifically, the dispute in this protest concerns the identity of binding agent: Is it a synthetic rubber and or a plastic? PROTESTANT asserts that it is a synthetic rubber and submitted a report issued by a private laboratory supporting that conclusion. Therefore, PROTESTANT argues, since the tariff definition of rubber includes synthetic rubber (see below), these cork sheets and rolls should be classified as consisting of cork and rubber.
Legal Note 1, Chapter 40, HTSUSA, which pertains to rubber and articles of rubber, provides as follows:
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Except where the context otherwise requires, throughout the
tariff schedule the expression “rubber” means the following
products, whether or not vulcanized or hard: natural rubber,
balata, gutta-percha, guayule, chicle a nd similar natural
gums, synthetic rubber, factice derived from oils and such
substances reclaimed.
Legal Note 4 to Chapter 40, HTUSUA, provides that the term “synthetic
rubber” applies, in pertinent part, to:
Unsaturated synthetic substances which can be irreversibly
transformed by vulcanization with sulfur into non-
thermoplastic substances which, at a temperature between [18
and 29 degrees Celsius], will not break on being extended to
three times their original length and will return, after
being extended to twice thie original length, within a
period of 5 minutes, to a length not greater than 1-1/2
times their original length. . . . [Italics added.]
Thus, in order for the binding agent of the cork products at issue to be considered a synthetic rubber, it must meet the above definition, including the threshold requirement that it be an “ unsaturated synthetic substance.” The laboratory report submitted by PROTESTANT indicates that the binding agent is such a substance. This report bases its conclusion on a test that produced a reaction causing the disappearance of the red color in the sample tested. However, the Customs laboratory, asked to comment on PROSTESTANT’S lab report, stated that the disappearance of the red color could result could result from the presence of another substance, isocyanate, in the sample. Thus, in these circumstances, the color change cannot be accepted as conclusive proof that the binding aent is an unsaturated synthetic substance.
In addition, the report of our National Import Specialist (NIS) experienced in the classification of cork and cork products indicated that PROTESTANT submitted a diagram of the chemical structure of the binder (referred to as a prepolymer of polyurethane). The NIS reported that an official from the Customs laboratory examined the diagram and confirmed that the product represented in the diagram is not unsaturated for purposes of Chapter 40.
Moreover, the Customs laboratory tested binder samples submitted with this protest in dumbbell form and liquid form. Customs Laboratory Report No. 2-94-30822-001, dated
June 1, 1994, concerning analysis of the dumbbell sample, indicates that the binding agent is a polyurethane type elastomeric plastic, not a synthetic rubber. Customs Laboratory Report
No. 2-94-30774-001, dated June 7, 1994, concerning analysis of the liquid sample, indiates that the binder is a plastic polyurethane type polymer in primary form. In fact then, for tariff purposes, the binder at issue is a polyurethane.
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In addressing the prospect of the binder being considered a polyurethane, PROTESTANT appears to agrgue that since the binder is an integrated component of the finished products, the rolls/sheets, it is not in a primary form and it, therefore, cannot be a polyurethane of heading 3909, HTSUSA. We disagree with this reasoning. Polyurethanes are provided for in
subheading 3909.50, HTSUSA, of Chapter 39, the chapter pertaining to plastics and articles of plastic. Heading 3909, HTSUSA, provides for amino-resins, phenolic resins, and polyurethanes, in primary forms. Legal Note 6, Chapter 39, HTSUSA, defines the term “primary forms”
(in headings 3901 to 3914) to include liquid form, which the binder at issue occupies prior to production of the rolls/sheets. It is this liquid polyurethane polymer that is mixed with agglomerated cork to produce the rolls/sheets. Thus, the rolls/sheets consist of cork and a polyurethane binder. We are unpersuaded by PROTESTANT’S argument that the binding agent is not a material of heading 3909 because, after production of the rolls/sheets, it no longer is in a primary form.
Based on the foregoing, particularly the findings and conclusions
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of the Customs laboratory, we conclude that the evidence shows that the binder used in the cork products at issue is not a rubber; therefore, the cork is not classifiable in subheading 4504.10.1000, HTSUSA, as PROTESTANT contends. Rather, it is classifiable in subheading 4504.10.5000, HTSUSA, as liquidated. In this regard, we note that there is a presumption of validity for the results obtained by the Customs laboratory, absent a showing that Customs failed to utilize proper procedures. See Exxon Corp. v. United States, 81 Cust.
Ct. 87, C.D. 4772 (1978).
ISSUE 2: Classification of cork tiles
The other cork products at issue in this protest are two types of wall tiles. As stated
in the “FACTS” section, the first is identified as style #10260. The back of this tile is coated with an adhesive that is covered with paper. The paper is removed during installation of the
tiles to expose the adhesive and is then discarded. The other tile sample, identified as style #CS35K-Red, consists of two cork sheets laminated together, with the underlying sheet showing through holes and spaces in the top sheet.
Customs classified both tiles in subheading 4504.10.5000, HTSUSA, as other tiles of agglomerated cork, of any shape. PROTESTANT contends that they are classifiable in subheading 4504.10.4000, HTSUSA, as wallcoverings, backed with paper or otherwise reinforced. PROTESTANT argues that in the absence of a tariff definition of the term “backing,” “backed with,” or “reinforced,” the paper of style #10260 and the bottom sheet of style #CS35K-Red must be considered to qualify, respectively, as a backing and a reinforcement. We disagree.
The terms “backed with” or “with a backing of” and “reinforced” appear at various places throughout the tariff. These terms are not defined in the tarifff, but a review of them indicates they derive their meaning from the context in which they appear. It is our view that the phrase, “backed with paper or otherwise reinforced,” within the context of subheading 4504.10.4000, HTSUSA, means that the paper backing or other reinforcement must play a role in the functioning of the article. That is, it must provide strength, support, firmness, etc., to the article as the article funtions in its ordinary manner.
The dictionary provides the common meaning of the term “reinforce” as follows: “1. To give more force or effectiveness to: STRENGTHEN. . . 3. To strengthen, as by adding extra support or padding.” WEBSTER’S II New Riverside Univeristy Dictionary (1984). These definitions clearly indicate that the purpose of reinforcement is to provide or add strength or support to something in order to enhance its function. Given the language of the subheading, it is clear that the phrase, ‘backed with paper,” means reinforced with paper. This is indicated by the phrase, “or otherwise reinforced,” that comes after it. Thus, both reinforcement and backing have the same meaning in the context of subheading 4504.10.4000, HTSUSA. The Explanatory Notes (EN’s) are supportive of this view. Therein, the following is provided under subheading 45.03: “Agglomerated cork of this heading may be impregnated (e.g., with oil), or reinforced by
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backing with paper or cloth provided it does not have the character of linoleum or similar materials classified in heading 59.04 [italics supplied].” (See Harmonized Commodity Description and Coding System, Vol. 2, p. 649.) Thus, in our view, the phrase, “backed with paper or otherwise reinforced,” as it appears in subheading 4504.10.4000, HTSUSA, means that the paper backing or other reinforcement material functions primarily to provide support or strength to the wallcovering for the purpose of enhancing its function.
Clearly, the paper of tile #10260 does not play a reinforcing role. It is used merely to facilitate the preservation of the adhesive during storage and transport prior to the tile’s application and use as a wall covering. It is absent from the tile when the tile is applied to the wall to perform its ordinary function. Therefore, it is not a backing of paper as contemplated by subheading 4504.10.4000, HTSUSA.
With respect to tile #CS35K-Red, we do not recognize the bottom sheet of this tile as a “reinforcement,” for the reason that its primary function is otherwise than to provide this limited, supporting contribution to the tile. Rather, its funciton is more substantial. The bottom sheet acts in concert with the top sheet to form the tile. In fact, given the characteristics of this particular tile, it would be more accurate to say that the bottom sheet is the main body of the tile and the top sheet, with its holes and spaces, enhances the tiles’s form and appearance. We prefer, however, to view the sheets of this tile as contributing equally to its form and function. Without either sheet, the tile does not exist in its identifiable form. This finding serves only to demonstrate that neither the bottom sheet nor the top sheet functions primarily to support or strengthen the other. This is a tile without a backing or reinforcement material.
Further, to recognize the bottom sheet as a reinforcement only because it is placed behind or below the top sheet is to invite such a finding for all and any articles or materials that consist of sheets, strips, etc., that are laminated or similarly combined together. This is an unsound interpretation. The reinforcement contemplated in the subheading’s terms ‘backing” and “reinforced” is limited to materials that provide support ofr strength enhancement to a wallcovering, while that wallcovering functions as such.
Finally, we note that the EN’s, as quoted above, indicate that an article of heading 4504, HTSUSa, can be “reinforced by backing with paper or cloth [italics supplied].” This indicates that a sheet of cork cannot be considered reinforcement ofr another sheet of cork. This conclusion is in accord with W.J. Byrnes & Co. v. United States, 52 Cust. Ct. 159; C.D. 2454 (1964). Where the U.S. Customs Court determined that a reinforced paper had to be reinforced with another material other than paper. Of course, that determination was limited to the tariff provision there under consideration, just as our determination inthe instant case is limitd to the
context of subheading 4504.10.4000, HTSUSA.
Based on the foregoing, we conclude that neither thepaperof tile #10260, nor the bottom cork sheet of tile #CS35K-Red, is a subheading 4504.10.4000, HTSUSA. Therefore, neither tile can be classified thereunder.
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HOLDING:
The agglomerted cork sheets and rolls at issue, as well as the two styles of cork tiles at issue, are classifiable, as liquidated, in subheading 4504.10.5000, HTSUSA, which provides for agglomerated cork (with or without a binding substance) and articles of agglomerated cork: blocks, plates, sheets, strip; and tiles of any shape: other.
Accordingly, this protest is DENIED. 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 by your office to the PROTESTANT no later than 60 days from the date of this letter. Sixty days fromt hedate of the mailing 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