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HQ 079710


April 21, 1988

CLA-2 CO:R:C:G 079710 c

CATEGORY: CLASSIFICATION

TARIFF NO.: 389.50

District Director of Customs
300 South Ferry Street
Terminal Island, San Pedro CA. 90731

RE: Decision an Application for Further Review of Protest No. 2704-5-004924

Dear Sir:

This protest was filed against your decision in the liquidation on August 9, 1985, of entry No. XX-XXXXXX-X dated XXXXXXXXX XX, XXXX, covering a shipment of floor mats manufactured in Japan.

FACTS

The merchandise involved is in three stages of manufacture. The first form consists of finished carpet floor mats, each of which consists of nylon pile carpet with the auto maker's name or trade logo on the carpet surface and a PVC or latex base. The second form is die-cut carpet for floor mats which consists of nylon pile carpet only, pre-cut to the prescribed shape. The third form is nylon pile carpet for floor mats in rolls approximately 41 inches wide by 60 yards in length. The component material of chief value for this merchandise in all three forms is nylon.

The above-listed entry was liquidated under the provision for other articles not specially provided for, not ornamented, of man-made fibers, pile or tufted construction in item 389.50, Tariff Schedules of the United States (TSUS).

The protestant claims that the merchandise is properly classifiable under the provision for floor coverings of pile or tufted construction, in which the pile or tufts were inserted or knotted into a pre-existing base, of textile materials, other, other, of man-made fibers in item 360.83, TSUS.

ISSUE:

Does the instant merchandise fall within the definition of "floor coverings" for tariff purposes?

LAW AND ANALYSIS

Schedule 3, Part 5, Subpart A, Headnote 2(a), TSUS, provides that "the term 'floor coverings' means carpeting, carpets, rugs, matting, and mats, all the foregoing of any size or shape, including squares or other segments designed to be joined together, suitable for use as floor coverings in homes, business establishments, institutions, vehicles, or elsewhere".

The words "suitable for use" as applied in Customs law mean actually, practically and commercially fit for such use. Such suitability does not require that the merchandise be chiefly used for the stated purpose, but it does require more than evidence of a casual, incidental, exceptional, or possible use. Keer, Maurer Co. v. United States, 46 CCPA 110, 114, C.A.D. 710 (1959), and cases cited therein.

The protestant asserts that its claim for classification as floor coverings is supported by the following rulings:

(1) T.D. 56041(71) as modified by T.D. 56153(24);

(2) CIE 1393/66 abstracted as T.D. 66-72 (12);

(3) Headquarters Ruling letter (HRL) 046980;

(4) HRL 066849;

(5) HRL 077914;

(6) T.D. 56521(64), and

(7) HRL 045459

We agree that T.D. 56041(71) modified by T.D. 56153(24) supports the protestant's claim. Specifically, that ruling held that automobile mats made of cocoa fiber are classifiable as floor coverings.

We do not agree that CIE 1393/66 abstracted as T.D. 66- 72(12) supports the protestant's claim. In that ruling it was determined that carpets cut to a specific size and shape for automobiles are classifiable as floor coverings. That merchandise is distinguishable from the instant automobile mats in that it appears the carpeting was used to actually cover the floor of an automobile, rather than as a protective mat to be placed upon the existing floor covering.

We do not agree that HRL 046980 dated September 7, 1976, supports the protestant's claim. In that ruling it was held that coir door mats claimed to be used in vestibules, hall- ways, automobiles, etc., are classifiable as floor coverings. However, it should be noted that the ruling states that "[t]he mats are placed on the floor with a degree of permanency * * * they will last, depending on quality, from one season to 4 to 5 seasons. They are not kept in a closet and used only during inclement weather. The mats cover a distinct area of a floor."

We do not agree that HRL 066849 dated December 1, 1980, supports the protestant's claim. In that ruling it was held that a bath rug designed to withstand the normal wear and tear of a floor covering as well as absorb water is classifiable as a floor covering. It is our view that this bath rug differs from the floor mats in issue because it is placed directly on the floor.

We do not agree that HRL 077914 dated May 6, 1986, supports the protestant's claim. In that ruling certain fire- retardant carpets or hearth rugs used to protect floor coverings or the floor adjacent to the hearth were classified as floor coverings. Again, those carpets may be distinguished from the instant floor mats because they are used to protect the floor when there is no floor covering near the hearth.

The protestant's claim that T.D. 56521(64) supports its position with respect to the automobile mats in issue is not well founded. In that ruling certain rubber matting in rolls which was determined to be suitable for use as floor cover- ings, protective coverings and automobile mats was classified as floor coverings. It appears to us that the rubber matting had multiple uses including use directly over a floor.

HRL 045409 dated September 3,1976, does not appear to support the protestant's position in this matter. In this ruling it was held that carpet blanks 6 feet long and 3 feet 10 inches wide are classifiable as floor coverings. Noting that there is an overlay of plastic located where an automobile operator's foot would rest while working the gas
pedal and the presence of a circular hole cut into the carpet blank for the headlight dimmer switch, it appears that these carpet blanks directly cover the floor of the automobile.

With the exception of the ruling set out in T.D. 56041(71), modified by T.D. 56153(24), all of the rulings cited by the protestant covered mats, carpets and rugs which were used directly on the floor. Thus, there was no question that they were "suitable for use" as floor coverings within the purview of Schedule 3, Part 5, Subpart A, Headnote 2(a), TSUS.

In Bureau Letter (B/L) MFC 475.24-002460, dated February 27, 1970, this office ruled that a vinyl carpet runner is not classifiable as floor covering, because it is a protector for a floor covering and is not suitable for use as a floor covering.

In B/L MCS 475.24 dated March 9, 1970, this office ruled that a carpet protective plastic matting is classifiable as flexible sheets of plastics and not as floor coverings.

In HRL 068846 dated November 2, 1981, this office ruled that a rubber floor mat placed over a car's natural floor covering is classifiable under item 774.55, TSUS, rather than as floor coverings.

It is our opinion that the last three rulings control the classification of the instant merchandise. Certainly it is the common understanding that car mats represented by the sample are used to protect existing floor coverings from wearing out. They are not placed directly over the floor of an automobile. Also, there has been no evidence submitted showing that the automobile mats are actually used to cover the original floor of an automobile.

In view of the foregoing it is our position that the finished floor mats for automobiles and the die-cut carpets for floor mats are classifiable as liquidated under item 389.50, TSUS. Assuming that the carpeting imported in rolls is suitable for use as a floor covering and is not dedicated solely for use in the manufacture of floor mats, it is classifiable under the provision for floor coverings of pile or tufted construction, in which the pile or tufts were inserted or knotted into a pre-existing base, of textile materials, other, other, of man-made fibers in item 360.83, TSUS.

HOLDING

The protest is denied as to the claimed classification of the finished floor mats and die-cut carpets for floor mats. The protest should be allowed as to the carpeting imported in rolls provided it is suitable for use as floor covering and is not dedicated solely for use in the manufacture of floor mats. T.D. 56041(71) as modified by T.D. 56153(24) is revoked.

A copy of this decision should be attached to the Form 19 Notice of Action to be sent to the protestant.

Sincerely,

John Durant

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