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.

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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.

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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

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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.

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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

Acting Director

Commercial Rulings Division

6cc: AD NY Seaport

1cc: Commercial Compliance

2cc: Chief CIE Branch

1cc: John Durant

DFCahill:mm:3/1/88