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HQ 957168

June 8, 1995

CLA R:C:T 957168 ch


TARIFF NO.: 4504.10.5000

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.


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.


What is the proper classification for the composition cork sheets?


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.


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.


John Durant, Director

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