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HQ 950056


March 5, 1992

CLA-2 CO:R:C:T 950056 KWM

CATEGORY: CLASSIFICATION

TARIFF NO.: 5904.10.0000

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 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

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