Port Director
U.S. Customs and Border Protection
Boston Service Port
10 Causeway Street, Suite 603
Boston, MA 02222-1059

Attn: James Knight, Supervisory Import Specialist

Re: Application for Further Review of Protest Number 0401-2015-100035; tariff classification of comfort flooring; interlocking foam tiles

Dear Port Director:

This letter is in reply to the Application for Further Review (AFR) of Protest Number 0401-2015-100035, filed September 2, 2015 by Drinker Biddle & Reath LLP on behalf of BJ’s Wholesale Club, Inc. (BJ’s or “protestant”). The protest concerns the classification of foam tiles under the Harmonized Tariff Schedule of the United States (HTSUS). While a meeting was requested in the AFR, we note that the protestant declined to proceed with a meeting on March 22, 2016.


The foam tiles are manufactured by Venture Products, LLC and sold under the brand name “Best Step.” They are constructed from Ethylene-Vinyl Acetate (EVA) and are imported in sets of six or eight. Each tile is 2 feet x 2 feet and 12 mm thick with notched borders that are interlocking so that the tiles can be easily attached to one another to form a mat. The sets also include matching side borders that will finish the edges of a mat, once the tiles have been assembled into the end user’s preferred configuration. Selling mats in the form of unassembled foam tiles and side borders enhances their versatility because the end user can customize the shape to accommodate their own space. Multiple sets can be combined to create larger mats. While an adhesive can be applied, it is not necessary for the assembly of the foam tiles and their subsequent use as mats.

The SKUs in issue are as follows: 707569, 718486, and 725037. SKU 707569 is available in black with a diamond plate texture and green with a basket weave texture. The retail packaging boldly specifies that it is “anti-fatigue flooring,” and it is sold in sets of eight tiles. SKU 718486 is available as a combination of bright tiles – blue, raspberry, orange, and lime green. The retail packaging boldly specifies that it is “comfort flooring” and it is sold in sets of eight tiles (with two of each available color). SKU 725037 is available in a simulated wood finish (maple or birch). The retail packaging boldly specifies that it is “comfort flooring” and it is sold in sets of six “interlocking tiles.” Collectively, the images on the retail packaging show the foam mats for use in various parts of the home.

The BJ’s website describes the product features of SKU 707569, referred to online as “Comfort Flooring,” as follows: “[d]ark gray diamond-plate texture or a dark blue T-texture (varies by Club) will complement any décor”; “8-interlocking tiles are easy to assemble”; “[b]orders are included for a finished look”; “[c]overs 32 sq. ft. (roughly 4' x 8')”; “[c]an be expanded by purchasing multiple sets”; “Microban antimicrobial product technology fights the growth of stains and odors from bacteria, mold and mildew for the life of the product”; and, “[i]Includes 8-pack of flooring squares.” The website shows the front of the retail packaging, which states “instant flooring solution” and indicates that it contains eight “interlocking tiles.” The packaging advertises the following features: “expandable,” “protection” and “comfort”; and it shows images of the foam tiles being used to cover the floors in a household, specifically in a laundry room, a mudroom, and a workspace/entertaining area.

The foam tiles described in the paragraph above were marketed on the BJ’s website in the section on “Rugs & Flooring.” That section subdivides products into the discrete categories of “rugs” and flooring,” and the foam tiles were categorized by BJ’s in the latter. At this time, substantially similar products are being sold on the websites of other well-known retailers. For example, Home Depot and Lowe’s sell them in their respective online “flooring” departments. We also note that the manufacturer of the Best Step brand of foam tiles markets substantially similar products on its own website as flooring made of “EVA Foam Interlocking Tiles.” According to protestant, and consistent with the manufacturer’s website, the foam tiles are designed to form mats that are intended to cover floors used in a variety of household settings: “comfort mats for work out activities”; “anti-fatigue support for standing work areas like kitchens, garages or laundry rooms; and “as protective foam mats for child play areas.”

Protestant imported six shipments of the foam tiles described above, which were entered at the Port of Boston between April and June of 2014. U.S. Customs and Border Protection (CBP) liquidated the entries with the foam mats classified, as entered, under subheading 3918.90.1000, HTSUS. Protestant subsequently filed the subject protest and AFR, alleging that the foam mats should have been classified under subheading 3924.90.1050, HTSUS. The Port of Boston has taken the position that the foam mats were properly classified, as entered.


Whether the interlocking plastic foam tiles that form mats are classified in heading 3918, HTSUS, as “[f]loor coverings … of plastics” or heading 3924, HTSUS, as “other household articles … of plastics.”


Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3)(2006)). Further review of Protest Number 0401-2015-100035 is properly accorded pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve a question of law or fact that has not previously been ruled upon by CBP or the courts.

The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. In this case, the 2014 HTSUS headings under consideration are the following:

3918 Floor coverings of plastics, whether or not self-adhesive, in rolls or in the form of tiles; wall or ceiling coverings of plastics, as defined in note 9 to this chapter

3924 Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System (HS) at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The ENs that apply to relevant headings provide very limited guidance. The ENs to heading 3918 state, in relevant part, as follows: “The first part of the heading covers plastics of the types normally used as floor coverings, in rolls or in the form of tiles. It should be noted that self-adhesive floor coverings are classified in this heading.” We note that there is no definition of “floor coverings” in the ENs for heading 3918 or for any other HTSUS headings that reference “floor coverings” (or include a reference thereto at the subheading level). The ENs to Heading 3924, specifically EN (C), define the scope of “other households articles” by listing the following exemplars: “ash trays, hot water bottles, matchbox holders, dustbins, buckets, watering cans, food storage containers, curtains, drapes, table covers and fitted furniture dust-covers (slipovers).”

The threshold inquiry in this case goes to whether the competing headings, as described above, apply to the foam tiles pursuant to GRI 1. We have taken into consideration protestant’s claim that heading 3918 is not applicable and, for the reasons set forth in Part A, below, we disagree. Heading 3924 is also applicable because the foam tiles are principally for use in a household, and so classification pursuant to GRI 1, alone, is not possible. The outcome in this case is controlled by a relative specificity analysis pursuant to GRI 3(a), which is provided in Part B, below. In short, we have determined that the foam tiles are more specifically classified under heading 3918, HTSUS, thereby confirming the classification of the subject merchandise, as entered, under subheading 3918.90.1000, HTSUS.

Overview of Competing Headings at GRI 1

It has been CBP’s longstanding position that floor coverings of plastic for use in the home are classified under heading 3918, HTSUS, if imported in rolls or in the form of tiles, or heading 3924, if imported in any other form. Protestant’s position in this case urges a more narrow approach to defining the scope of what CBP has traditionally classified under heading 3918, HTSUS, such that the foam tiles in issue would be excluded (thereby warranting their classification under heading 3924, HTSUS). We have considered protestant’s approach and found that defining “floor coverings” to exclude plastic mats of interlocking tiles would be inconsistent with CBP’s past rulings and unwarranted by the plain language of heading 3918, HTSUS.

Past Rulings on Headings 3918 and 3924

Historically, CBP has determined that products which are substantially similar to the foam tiles in issue are classified under heading 3918, HTSUS. See, e.g., NY L80832, dated November 29, 2004 (plastic foam “puzzle mat” made of 9 - 10 interlocking tiles, each approximately 12 inches square and 3/8 inches in thickness); NY K81519, dated December 19, 2003 (interlocking plastic foam tiles “used to create a floor mat”); NY H83375, dated July 19, 2001 (“Playmats” imported as a 16 piece set of plastic interlocking tiles “used to create various styles of floor coverings); NY A82976, dated May 9, 1996 (“Keum Kang Mat” made of plastic interlocking tiles, each approximately 12.5 inches square and 1 inch thick, designed to be “joined together the tiles form a sport/gym mat” that “acts as a floor covering for exercise rooms, nursery rooms, martial arts rooms, etc.”); and, NY 806942, dated March 6, 1995 (plastic “puzzle mat” made of interlocking tiles “used to create various styles of floor coverings”). The aforementioned rulings clearly demonstrate that for classification purposes, CBP has consistently considered plastic floor mats imported in the form of sets of interlocking plastic tiles to be “floor coverings” of heading 3918, HTSUS.

The rulings discussed above may be contrasted with others that CBP has issued when plastic mats for household use were not imported in the form of tiles. See, e.g., NY N235313, dated November 21, 2012 (a rectangular mat that consisted of a patterned top surface made predominantly of plastic material, measuring approximately 29.5” x 13.75” and “designed to be used in the home”); NY N091575, dated February 12, 2010 (“Toddler Playmat” made of plastic foam, ranging in size from 6’ x 4’ to 8’ x 5’ that was “designed to provide cushioning that will protect children from hurting themselves if they fall, as well as to muffle noise and create a barrier between the child and a cold floor”); NY N089976, dated February 2, 2010 (“MedaMat” predominantly made of plastic foam that was “designed for use as a pad on which to stand while cooking and washing dishes in the kitchen, as a means of relieving the stress and fatigue on the feet, legs and back that can be the result of standing in one place for an extended period of time”). As per the aforementioned rulings, when plastic mats are not imported in the form of tiles (or rolls), CBP classifies them under heading 3924, HTSUS, if they are designed for use in a household.

In light of past rulings, plastic mats for household use can be classified in either of headings 3918 and 3924, HTSUS; and, we reject protestant’s claim that the plastic mats in issue cannot be both a floor covering and a household article. In taking this position, protestant relied on NY N089976, cited above, claiming that “Customs found that the plastic foam mat [classified in heading 3924, HTSUS] was intended not as a ‘floor covering,’ but instead a household article designed to provide comfort and support to the user.” On the contrary, the plastic mat in NY N089976 was a floor covering intended for use in a household. It may have provided benefits to the user (such as comfort), but that did not detract from the fact that it was inherently a “floor covering.” The reason it was not classified as such under heading 3918 is because that provision is limited to “floor coverings” in the form of either “rolls” or “tiles” (and the plastic mat in NY N089976 was not in either form). The fact that heading 3918, HTSUS, specifies two particular forms of floor coverings demonstrates that there are other forms that exist and those forms are to be classified under other headings (including heading 3924, HTSUS, if the floor coverings are for use in a household).

CBP has previously taken the following position regarding the scope of the eo nomine provision in heading 3918, HTSUS, for “floor coverings”: “Floor coverings are commonly thought to be articles such as carpets, rugs, mats, tiles, etc. These are articles which cover a floor area and which are open to view.” HQ 088909, dated April 22, 1991 (wherein CBP excluded rug pads from classification under heading 3918, HTSUS, because a “rug pad, on the other hand, is not seen, but is under the perceived floor covering, i.e. the rug). A floor covering will thus be classified under heading 3918, HTSUS, so long as it visibly covers some part of a floor area and is imported “in rolls or in the form of tiles.” The foam tiles in issue are used to form mats that are placed on the floor and would be visible to the users. As such, they fall squarely within CBP’s common understanding of floor coverings, which has been consistently applied in the context of heading 3918, HTSUS, for more than two decades.

Scope of Heading 3918

We note the difference between CBP’s common understanding of floor coverings, as discussed above, and protestant’s position that heading 3918, HTSUS, should be limited to “resilient” floor coverings. Protestant collectively cites to the category of standards referred to as “Resilient Floor Covering Standards,” which are issued by the American Society for Testing and Materials (ASTM). Resilient floor coverings are a specific type of floor covering and there is nothing to suggest that heading 3918, HTSUS, was intended to be limited to floor coverings that qualify as “resilient.” The Resilient Floor Covering Institute (RFCI), which defines itself as “an industry association of leading resilient flooring manufacturers and suppliers of raw materials, additives, and sundry flooring products for the North American market,” does not define “resilient floor coverings,” but it does define “resilient flooring” as follows: An organic floor surfacing material made in sheet or tile form or formed in place as a seamless material of which the wearing surface is non-textile. The resilient floor covering classification by common usage includes, but is not limited to, asphalt, cork, linoleum, rubber, vinyl, vinyl composition, and polymeric poured seamless floors. Resilient in this sense is used as a commonly accepted term, but does not necessarily define a physical property.

Presumably, the physical properties could be defined by industry standards including what has been promulgated by the ASTM (although we do not have sufficient information from protestant to conclusively support such a conclusion). The RFCI defines “resilient” in general, as follows:

These floors have some “give” or elasticity when you walk across them. Tending or able to recover from strain or deformation caused especially by compressive stress. This category includes linoleum, cork, rubber and specialty resilient.

When composed of plastic and imported in rolls or in the form of tiles, the resilient floor coverings described by the definitions above would fall within the scope of heading 3918, HTSUS. However, the tiles of this heading are not limited to those made of resilient flooring. We note that the RFCI defines “tile” as “flat pieces which can be installed in individual units.” This definition may be within the context of resilient flooring, but it is generally consistent with CBP’s position as to what constitutes “tile” within the meaning of heading 3918, HTSUS. There is nothing in the text of the heading to suggest that tile exists only in the form of resilient flooring. A floor covering that does not comport with the ASTM standards for resilient floor coverings may not be as durable or high quality, but it is nonetheless a floor covering.

We emphasize that heading 3918, HTSUS, is an eo nomine provision that describes goods by a specific name, and a fundamental rule of tariff classification is that “an eo nomine provision that names an article without terms of limitation and, absent evidence of contrary legislative intent, is deemed to include all forms of the article.” Chevron Chem. Co. v. United States, 59 F. Supp. 2d 1361, 1367 (Ct. Int’l Trade 1999). To this end, heading 3918, HTSUS is properly interpreted to include all floor coverings imported in the form of plastic tiles and not just those that meet industry standards for resilient flooring. See, e.g., NY M87516, dated November 16, 2006, wherein CBP classified molded PVC plastic floor tiles “designed to interconnect to form a solid flooring to sit on top of an existing floor or sub-floor” in a garage under heading 3918, HTSUS. In that ruling, CBP pointed out that “[t]he flooring is not designed for permanent fastening or adhesion to the existing floor.” The foam tiles in the instant case are similar in form and function, and would also be within the scope of heading 3918, HTSUS.

In light of the foregoing, we disagree with protestant’s claim that the reference in the ENs to heading 3918 to indicate that its scope “covers plastics of the types normally used as floor coverings” would exclude the foam tiles in this case. The preponderance of the evidence actually supports that the foam tiles are considered to be floor coverings, notwithstanding that they may be outside of the standards set by the ASTM for resilient flooring. When analyzing what falls within the scope of an eo nomine provision, the courts have advised that there are certain factors that provide guidance. The relevant factors in this case are “design and use/function of the subject articles” as well as commercial factors such as “how the subject articles are regarded in commerce” and “how the subject articles are described in sales and marketing literature.” CamelBak Products, LLC v. United States, 649 F.3d 1361, 1367-68 (Fed. Cir. 2011) (internal citations omitted).

The foam tiles are, in fact, designed for use as floor coverings. The retail packaging boldly specifies “anti-fatigue flooring” and/or “comfort flooring.” The foam tiles are sold in sets of six or eight tiles and multiple sets can be purchased for custom-size configurations for flooring. The packaging identifies the foam tiles as an “instant flooring solution” consisting of “interlocking tiles.” Protestant’s own website markets the foam tiles in their flooring department, as do its competitors who sell a substantially similar products. Even the manufacturer markets the brand on its own website as an anti-fatigue mat made of “EVA Foam Interlocking Tiles.” In every instance cited in this paragraph, the foam tiles are indicated to be designed by the manufacturer, and both regarded by and marketed for use by the retailer and comparable companies as floor coverings to be used in a household. In short, the factors analyzed herein show that a product can fall within the scope of heading 3918, HTSUS, without satisfying the performance requirements set forth by the ATSM or any other requirements unique to the resilient flooring industry.

Relative Specificity Analysis at GRI 3(a)

The foam mats are within the scope heading 3918, HTSUS, for the reasons set forth above; however, they also fall within the scope of heading 3924, HTSUS, because they are principally used in a household. GRI 3(a) requires that we proceed to a relative specificity analysis to determine the heading under which the plastic mats should be classified. According to GRI 3(a):

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:

The heading which provides the most specific description shall be preferred to headings providing a more general description. …

Where articles can be classified under two HTSUS headings, under GRI 3(a) the classification "turns on which of these two provisions are more specific." Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998). To do so, CBP will "look to the provision with requirements that are more difficult to satisfy and that describe the article with the greatest degree of accuracy and certainty." Orlando Food, 140 F.3d at 1441 (internal citations omitted).

Under a GRI 3(a) analysis, heading 3918, HTSUS, prevails over heading 3924, HTSUS. “Floor coverings of plastics … in rolls or in the form of tiles” is a much more specific description that “other household articles ... of plastics.” The ENs to heading 3924 support this conclusion, as the exemplars provided (ash trays, hot water bottles, matchbox holders, dustbins, buckets, watering cans, food storage containers, curtains, drapes, table covers and fitted furniture dust-covers) represent a broad array of very different “household” articles. Floor coverings may be included, but they are described more specifically by the eo nomine provision in heading 3918, HTSUS, which captures them by name, as well as their particular form and actual use. The fact that the foam tiles form mats that are principally used in a household setting puts them into a very broad class or kind or articles in heading 3924, HTSUS, which obviously lacks the accuracy and certainty conferred by “floor coverings … of plastics, in rolls or in the form of tiles.”

HOLDING: By application of GRIs 1, 3(a) and 6, the interlocking foam tiles are classified under subheading 3918.90.1000, HTSUS, which provides, in pertinent part, for: “Floor coverings of plastics, whether or not self-adhesive, in rolls or in the form of tiles …: Of other plastics: Floor coverings.” As such, the 2014 column one, general rate of duty was 5.3% ad valorem.

You are instructed to DENY the protest. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at, by means of the Freedom of Information Act, and other methods of public distribution.


Myles B. Harmon, Director
Commercial and Trade Facilitation Division