HQ 079710: Decision an Application for Further Review of Protest No. 2704-5-004924

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                     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.















                                        - 2 -


          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.

















                                        - 3 -


               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











                                        - 4 -


          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.














                                        - 5 -


          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