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HQ 964509




July 25, 2001

CLA-2 RR:CR:TE 964509 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 5703.20.2090; 5703.30.0080

Steven B. Zisser, Esq.
Suite 34
2155 Paseo De Las Americas
San Diego, CA 92173

RE: Request for reconsideration of classification: Tufted fabrics and tufted floor coverings

Dear Mr. Zisser:

This is in response to a letter, dated September 8, 2000, on behalf of your client, Camsal Enterprises, requesting reconsideration of Customs New York Ruling (NY) D86098, which involved the classification of tufted fabrics and tufted floor coverings under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted to this office for examination. Regarding your request for a meeting, on two separate occasions, we offered to meet with you to discuss the classification of this merchandise. Most recently by way of correspondence which was issued to you in April, 2001. Since you have failed to respond, we are presuming that you no longer wish to have a meeting.

FACTS:

NY D86098, dated January 20, 1999, concerned the classification of tufted fabrics and tufted floor coverings. The only articles now in issue are identified as Product 2213 (also known as the 9400 series), and Product 215 (also known as the 215 series). Customs classified the aforementioned products as tufted floor coverings under subheading 5703.20.2090, HTSUSA, if of nylon, and under subheading 5703.30.0080, HTSUSA, if of other man-made fibers. You disagree with this classification and request classification for all three products as tufted textile fabric under subheading 5802.20.0030, HTSUSA.

You describe the article identified as Product 2213 as a tufted textile fabric constructed in 40-inch widths on 50-yard rolls. The yarn weight ranges from 20 to 24 ounces per square yard. The fabric is made of nylon or other man made fibers. The article identified as Product 215 is described as a tufted textile fabric constructed in 41-inch widths on 35-yard rolls. The yarn weight is 50 ounces per square yard and will also be constructed of nylon or other man made fibers. Neither of these products has been impregnated or backed with any fabric, rubber or plastic, and the yarns are not twisted. Furthermore, you assert that each of these products can be easily folded, crumpled and formed.

ISSUE:

What is the proper classification for the merchandise?

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). GRI 1 provides that the classification of goods 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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The EN, although not dispositive, are used to determine the proper interpretation of the HTSUSA by providing a commentary on the scope of each heading of the HTSUSA. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The EN to Ch. 57 states in the Chapter Notes as follows:

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.

The General notes in the EN to Ch. 57 further state that “ articles having the characteristics of textile floor coverings (e.g. thickness, stiffness and strength) but intended for use for other purposes (for example, as wall hangings or table covers or for other furnishing purposes). are classified in this chapter whether made up or in the form of carpeting for installationin the length for cutting and making up.” Of particular importance to the products now in issue is the fact that the EN to 5703 specifically notes that “Products of this heading are distinguished from the tufted textile fabrics of heading 58.02 by, for example, their stiffness, thickness and strength, which render them suitable for use as floor coverings.”

You assert that the subject articles are not classifiable under heading 5703, HTSUSA, as floor coverings because they have no backing, the yarns are not twisted, and they are not intended for use as floor coverings at the time of importation. We do not agree. According to the EN to Ch. 57, articles which are not intended for use as textile floor coverings are still classifiable within the chapter as long as they have the requisite thickness, stiffness and strength which is characteristic of floor coverings.

In addition, “tufted” carpets intended for use as floor coverings include those which have been constructed with yarns that have not been twisted. In referencing the book “Beyond Basic Textiles”, we have identified that the subject products are similar to carpets which have a “cut pile”. This is where the pile loops are cut leaving individual tufts of yarn. This results in a “plush carpeting” which has a “velvet” surface. The “velvet” surface yarn is described as follows:

Velvet. The surface yarns in velvet carpets have very little twist. The ends tend to blend together to give a smooth, unbroken surface. Velvet carpets are usually made in a solid color.

Velvet plush carpeting usually has single yarns instead of plied yarns for a softer effect. It tends to show footsteps, since the surface yarns having little twist, possess a minimum degree of resiliency. [emphasis supplied]

With respect to backings, the EN to 5703 notes that “normally” there is a fixative coating of rubber or plastic applied and “usually” there is a secondary backing of loosely woven textile material. In using the terms “normally” and “usually”, the EN suggests that not every carpeting classifiable within the heading will have a coating of rubber/plastic or a secondary backing.

Therefore, we believe that in determining whether the subject articles are classifiable as “floor coverings” of Ch. 57 or “tufted textile fabric” of Ch. 58, we must look to their construction to assess the “thickness, stiffness and strength” of each product. The subject articles consist of tufted yarn pulled through a coarse woven backing. The yarns have not been twisted but it appears that the backing has been coated with a thick rubber or plastic material that secure the yarns in place. The article identified as Product 215 has a dense pile which, in turn, gives it a heavier weight (50 ounces per square yard). The result is a thick luxurious nap, approximately ½ inch in length, with a backing of moderate stiffness. The article identified as Product 2213 is not as densely tufted as Product 215, however, the pile is of moderate thickness and weight (20 to 24 ounces per square yard) with a nap that is also approximately ½ inch in length. Although Product 2213 is not as thick or stiff as Product 215, it still has the requisite strength of a floor covering, albeit, a lower end carpeting.

In view of the foregoing, it is our determination that both Product 215 and Product 2213 fall within the acceptable range of thickness, stiffness, and strength that renders them suitable for floor coverings classifiable within heading 5703, HTSUSA.

HOLDING:

NY D86098 is affirmed.

The subject merchandise, identified as Product 215 and Product 2213, are classifiable as follows:

If of nylon, in subheading 5703.20.2090,HTSUSA, which provides for, “Carpets and other textile floor coverings, tufted, whether or not made up: Of nylon or other polyamides: Other: Other.” The general column one duty rate is 7 percent ad valorem. The textile category is 665. If of other man-made fibers, in subheading 5703.30.0080, HTSUSA, which provides for, “Carpets and other textile floor coverings, tufted, whether or not made up: Of other man-made textile materials, Other: Other.” The general column one duty rate is 6.5 percent ad valorem. The textile category is 665.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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