H297792

 HQ H297792 March 4, 2021 OT:RR:CTF:CPM H297792 RFC CATEGORY: Classification TARIFF NO.: 4503.90.6000 Center Director Center of Excellence and Expertise for Industrial & Manufacturing Materials U.S. Customs and Border Protection 726 Exchange Street, Suite 400 Buffalo, NY 14210 Attn: Fernando Biscarra, Import Specialist RE: Internal Advice Request; Classification of Cork Flooring Dear Center Director: This is in response to a June 12, 2018, request by the Center of Excellence and Expertise for Industrial & Manufacturing Materials (“CEE”) for internal advice as to the proper classification of certain cork flooring under the Harmonized Tariff Schedule of the United States (HTSUS). The CEE submitted its request following receipt of an April 27, 2017, request by Neville Peterson LLP on behalf of Toryls Inc. (“Toryls”) that the CEE seek internal advice from our office pursuant to 19 C.F.R. §177.11(a) (“internal advice request”). FACTS: The merchandise at issue is invoiced as “Florence Designer.” The submission requesting internal advice, dated April 27, 2017, describes the flooring as follows: The finished imported product is agglomerated cork flooring described on the invoices as "Florence Designer" agglomerated cork flooring ("Agglomerated Flooring"). The Agglomerated Flooring is composed of (3) layers: a top layer of agglomerated cork 3.5mm thick, a core middle layer of high-density fiberboard (HDF) 9mm thick, and an underlayment backing layer 2.5mm of agglomerated cork… Finally, a veneer is placed on top of the agglomerated sheets of cork. This latter description aligns with that found in U.S. Customs and Border Protection’s Laboratory and Scientific Services Directorate (LSSD) Report # CH20171044A, dated September 26, 2017, analyzing a submitted sample of the product. That report states, in pertinent part, the following: This is an amended report of CH20171044 dated 8/24/17. The sample, a multi-layered flooring product measuring approximately 19.3 x 25.5 x 1.5 centimeters is composed of the following layers: (1) Natural cork veneer adhered to agglomerated cork with an average thickness of 3.57 millimeters. The veneer on the outermost surface has an average thickness of 0.175 millimeters and has a finish of a rubber/plastics material. (2) Medium density fiberboard with a density of 0.9g/cm3 and an average thickness of 9.02 millimeters. (3) Agglomerated cork with an average thickness of 2.25 millimeters. ISSUE: What is the proper classification of each of the subject cork floorings: (1) in heading 4503 HTSUS, as an article of natural cork, or (2) in heading 4504, HTSUS, as an article of agglomerated cork? LAW AND ANALYSIS: Merchandise imported into the United States is classified under the Harmonized Tariff Schedule of the United States (HTSUS). The tariff classification of merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provision of law for all purposes. See Sections 1204(a) and 1204(c) of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. 1204(a) and 1204(c)). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule (i.e., (1) merchandise is to be classified under the 4-digit heading that most specifically describes the merchandise; (2) only 4-digit headings are comparable; and (3) merchandise must first satisfy the provisions of a 4-digit heading before consideration is given to classification under a subheading within this 4-digit heading) and any relative section or chapter notes and, provided such headings or notes do not otherwise require, then according to the other GRIs. GRI 3 states, in pertinent part, as follows: 3. When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: o o o (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. GRI 6 prescribes that, for legal purposes, GRIs 1 to 5 shall govern, mutatis mutandis, classification at subheading levels within the same heading. Therefore, merchandise is to be classified at equal subheading levels (i.e., at the same digit level) within the same 4-digit heading under the subheading that most specifically describes or identifies the merchandise. The HTSUS headings at issue are as follows: 4503: Articles of natural cork: 4504: Agglomerated cork (with or without a binding substance) and articles of agglomerated cork: The Explanatory Notes to the Harmonized Commodity Description and Coding System (hereinafter "Harmonized System") represent the official interpretation of the Customs Cooperation Council on the scope of each heading. See H.R. Conf. Rep. No.100-576, 100th Cong., 2d Sess. 549 (1988); 23 Customs Bulletin No. 36, 3 (T.D. 89-90, September 6, 1989), 59 F.R. 35127 (August 23, 1989). Although not binding on the contracting parties to the Harmonized System Convention or considered to be dispositive in the interpretation of the Harmonized System, the Explanatory Notes should be consulted on the proper scope of the Harmonized System. Id. The Explanatory Notes to heading 4504 state, in pertinent part, 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 °C. In this latter case the natural gum in the cork acts as a binder. There is no dispute that the merchandise is cork flooring of Chapter 45. The issue centers around whether the product is described and classifiable as an “article of agglomerated cork” of heading 4504, HTSUS, by application of GRI 1. The instant flooring product consists of layers of cork, i.e., natural cork and agglomerated cork, and fiberboard. The natural cork layer is referred to as a “veneer” by the requester and in the report from LSSD. The starting material for agglomerated cork is crushed, granulated or ground cork. Even if produced by heat without a binder, natural cork remains classified in heading 4503, HTSUS, as natural cork if the cork had not first been crushed granulated or ground. The instant “veneer” consists of natural cork according to the report from LSSD. It is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.”? Aluminum Co. of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398, C.A.D. 1102 (1973) (hereinafter Alcoa). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 81 Cust. Ct. 87, 90-91, 462 F. Supp. 378, 381-82, Cust. Dec. 4772 (1978) (citations omitted).? “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.” Alcoa, 60 C.C.P.A. at 151, 477 F.2d at 1399. As such, the instant flooring product is not an article of agglomerated cork of heading 4504, HTSUS. Rather, it is a composite good classified by application of GRI 3(b) according to its essential character. Although the layer of natural cork is the thinnest, it comprises the front face (or top layer) when the flooring 

Merchandise imported into the United States is classified under the Harmonized Tariff Schedule of the United States (HTSUS). The tariff classification of merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provision of law for all purposes. See Sections 1204(a) and 1204(c) of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. 1204(a) and 1204(c)).GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule (i.e., (1) merchandise is to be classified under the 4-digit heading that most specifically describes the merchandise; (2) only 4-digit headings are comparable; and (3) merchandise must first satisfy the provisions of a 4-digit heading before consideration is given to classification under a subheading within this 4-digit heading) and any relative section or chapter notes and, provided such headings or notes do not otherwise require, then according to the other GRIs.GRI 3 states, in pertinent part, as follows:3. When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:o o o (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. GRI 6 prescribes that, for legal purposes, GRIs 1 to 5 shall govern, mutatis mutandis, classification at subheading levels within the same heading. Therefore, merchandise is to be classi