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HQ 962664




April 7, 2000

CLA-2 RR: CR: TE 962664 mbg

CATEGORY: CLASSIFICATION

Tariff No.: 5702.99.1010

Ms. Kim Supik
Import Manager
Homemaker Industries, Inc.
295 Fifth Avenue
New, NY 10016-7186

RE: Request for Reconsideration of NY D86775; classification of a rug made of tubular material

Dear Ms. Supik:

This letter is in response to your correspondence with this office dated February 9, 1999, requesting reconsideration of Customs New York Ruling (“NY”) D86775 in which the subject article was classified as a carpet of non-pile construction under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”).

FACTS:

The subject merchandise is identified as the Style Velvet Tube rug. The sample submitted is constructed of 100 percent cotton pile fabric and cotton yarns. The weft is constructed by a velvet like pile fabric that has been formed into an approximately 1 inch wide tube. This fabric tube is filled with twelve loosely twisted coarse yarns. The warp is constructed of cotton yarns that are woven in a tight, flat manner with the velvet tubes to ensure that the velvet tubes securely form a rectangular rug shape. The sample measures 22 X 34 inches.

On February 3, 1999, Customs issued NY D86775, which classified the merchandise as a made up, woven rug, not of pile construction under subheading 5702.99.1010, HTSUSA. You requested reconsideration based on the belief that the rug is made of a tubular chenille material, which you consider to be “low pile” Thus, it is your assertion that the rug is properly classified under 5702.49.1020, HTSUSA, the provision for woven carpets of pile construction.

ISSUE:

Whether the rug is properly classified as a rug “not of pile construction” under heading 5702.99.1010, HTSUSA, or as a rug “of pile construction” under heading 5702.49.1020, HTSUSA?

LAW AND ANAYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined according to the terms of the heading 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 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.

Determination of whether a rug is or is not of “pile construction” requires an understanding of industry terminology which is germane to the issue and utilized by the HTSUSA. A “pile carpet” is defined as “a carpet with cut and/or uncut pile surface.” Fairchild’s Dictionary of Textiles 436 (2nd ed. 1959). Additionally, “pile” is defined as “[r]aised loops, cut interlacings of double cloths or tufts (cut loops), and other erect yarns or fibers deliberately produced on cloth, which form all or part of the surface of the fabric.” Id.

In order to determine whether or not such materials, once woven, have become a carpet of “pile” construction under 5702, HTSUA, we can look to the ENs for guidance. Specifically, the ENs for 5702, HTSUSA, discuss one type of “pile” surface carpeting as follows:

Wilton and similar carpets. These have a strong heavy ground fabric covered by a pile surface (i.e., a right side formed by adjacent threads or tufts standing upright) or by a looped surface.

The surface of these carpets is formed by additional warp threads which are made to form loops on the right side of the fabric during the weaving process by the temporary insertion of metal rods or wires.

Other types of carpets described in the ENs for 5702, HTSUSA, relative to this discussion include:

Chenille carpets. The principal characteristic of these is that their pile surface is produced by the use of chenille yarns (see Explanatory Note to heading 56.06). These yarns may be used as an additional weft woven in the normal way; in some cases short pieces of chenille yarn are inserted as an extra discontinuous warp held in place by the ground fabric.

Flat weave carpets which have no loops or pile but can be distinguished from the textile fabrics of Chapters 50 to 55 in that, being heavy and strong, they are clearly intended for use as floor coverings.

These include Kidderminster or so-called “Belgian” carpets which are double fabrics, the design being produced by the interchange at intervals of the two fabrics. Apart from these relatively fine house carpets, the heading also covers coarse carpets or carpeting (such as drugget) of jute, coir, hair, paper yarns, etc. (usually plain, twill or chevron weaves), and rag carpets with a warp of jute yarn and a weft made of strips of waste fabric tied end to end.

You assert that the merchandise under consideration is “made of a tubular chenille material, which [you] consider to be low pile,” yet also assert that the carpet is made of 100 percent cotton pile and cotton yarns. The EN for heading 5702, HTSUSA, specifically state that chenille carpets have a pile surface made of chenille yarn (emphasis added.) A chenille yarn is defined in the EN to heading 5606, HTSUSA, as:

Chenille yarn consists generally of two or more strands of textile yarn twisted together and gripping short ends of textile yarn which stand out practically perpendicularly. It therefore looks like yarn tufted with pile threads throughout its length. It is usually manufactured directly on special looms or by cutting up special leno fabric; in the latter process, after the fabric has been cut along either side of each group of warp threads, it is these warp threads (ground and crossing threads) which serve as support in the chenille yarn, and the weft which forms the pile.

Chenille yarn is used, inter alia, in the manufacture of chenille fabric or of various trimmings.

The warp of this rug is formed by cotton yarns woven tightly with the velvet tubing which forms the weft. The construction of the velvet tubing, i.e., chenille fabric covering twelve yarns, has no bearing on the classification of the rug as the fabric becomes a “yarn” used in the weaving of the rug. The use of the chenille fabric does not result in classification as a chenille rug, or a pile rug, since the rug is not constructed of chenille yarn.

It is possible to create a woven pile rug using strips of pile fabric, or of any other fabric, by raising portions of these strips above the surface of the rug as in standard pile fabrics and rugs. However, the Velvet Tube rug does not have any raised loops or tufts which are considered characteristic of a pile carpet and essential for classification as such. The carpet does not meet the definition of a “pile carpet” as set forth in the HSTUSA. It is of a woven construction and would be akin to the rag carpets described in the aforementioned EN. Therefore, the proper classification under subheading 5702.99.1010, HTSUSA, as a woven carpet not of pile construction is correct.

HOLDING:

NY D86775 is affirmed.

The carpet identified as the Velvet Tube style rug, is properly classified under subheading 5702.99.1010, HTSUSA, which provides for “Carpets and other textile floor coverings, woven, not tufted or flocked, whether or not made up, including “Kelem,” Schumacks,” Karamanie,” and similar hand-woven rugs: Other, not of pile construction, made up: Of other textile materials: Of cotton, Woven, but not made on a power-driven loom.” The provision is dutiable under the general column one rate at 7.2 percent ad valorem. The textile category designation is 369.

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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