CLA-2 CO:R:C:G 086286 WAW

Edmund Maciorowski, Esq.
Sonnenberg, Anderson, O'Donnell & Rodriguez
900 Buhl Building
Detroit, MI 48226

RE: Reconsideration of New York Ruling Letter 847787; Textile PomPons

Dear Mr. Maciorowski:

This letter is in response to your request for a reconsideration of New York Ruling Letter (NYRL) 847787, dated December 13, 1989, on behalf of your client, United Industrial Trading Corporation, concerning the classification of a textile pompon from Korea. A sample of the merchandise was submitted along with your request.

FACTS:

The sample submitted consists of two pompons with an outer surface of man-made fiber textile construction that are stuffed with a plush ground cloth also of man-made fibers. Each pompon measures approximately 2-1/2 inches in diameter. Attached to each pompon is a lace or cord which can be used to tie the pompon to ice skates, roller skates or other types of athletic footwear. A small metal bell is attached to the pompon which produces a sleigh bell sound when jiggled. The two pompons are affixed to a retail header card which is used to display and market the articles to the consumer.

In NYRL 847787 the sample pompons were classified under subheading 5808.90.0010, HTSUSA, which provides for pompons and similar articles: Other. . . Of cotton; of man-made fibers. Counsel for the importer maintains that these articles are more properly classifiable under subheading 9506.70.6080, HTSUSA, as "other parts and accessories for roller skates and ice skates".

ISSUE:

Whether the sample merchandise is classifiable as "other parts and accessories for roller skates and ice skates" under subheading 9506.70.6080, HTSUSA, or as "pompons and similar articles" under subheading 5808.90.0010, HTSUSA.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

The importer has presented two arguments to support his position. First, the importer maintains that the articles are not defined by the eo nomine provision for "tassels" and/or "pompons" in Chapter 58 of the tariff schedule. Second, he states that since these articles fall within Chapter 95, HTSUSA, they cannot be included within Chapter 58, HTSUSA, based on Legal Note 1(t) to Section XI.

The issue in this case centers on the determination of whether the sample merchandise is more properly classifiable as a "part and accessory for a roller skate or ice skate", or as a "pompon and similar article" used to decorate a roller skate or ice skate or other type of athletic footwear. We are of the opinion that the sample pompons are classifiable as similar articles intended to be included within Heading 5808, HTSUSA, and hereby affirm NYRL 847787, for the reasons discussed below.

Rule 1(c) of Additional U.S. Rules of Interpretation states that:

a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for "parts" or "parts and accessories" shall not prevail over a specific provision for such part or accessory.

Heading 5808, HTSUSA, includes articles such as braids in the piece; ornamental trimmings in the piece, without embroidery, other than knitted or crocheted; tassels, pompons and similar articles. You maintain that Explanatory Note (B)(4) to Heading 5808, HTSUSA, which constitutes the official interpretation of the tariff at the international level, excepts the sample article from this heading. Explanatory Note (B)(4) describes pompons in the following manner:

Pompons, i.e., short threads secured together in the middle and fluffed out in all directions.

The Explanatory Notes to Heading 5808, HTSUSA, also state that:

All these articles may be provided with a loop for attachment purposes; they are of general use mainly in furnishing but also to a lesser extent for clothing. They are predominately ornamental in character.

Subheading 9506.70, HTSUSA, includes ice skates and roller skates, including skating boots with skates attached; parts and accessories thereof. Neither the Legal Notes nor the Explanatory Notes provide any criteria for the inclusion of goods in subheading 9506.70, HTSUSA.

We agree that the sample pompon does not fit the definition of a "pompon" as described in the Explanatory Note to Heading 5808, HTSUSA. The pompon in the instant case is not made of "short threads secured together in the middle" as that term is used in the Explanatory Notes. However, we are of the opinion that the article is the same class or type of good intended to be included within Heading 5808, HTSUSA, since it is similar to those articles specifically enumerated within the heading. Like those articles included within the heading, the pompon contains a lace or cord which facilitates its attachment to other objects. Moreover, based on our research of the product and the information you have supplied to us, the sample merchandise is used only for decorative or ornamental purposes.

Failing a clear statement of congressional intent, tariff terms are construed in accordance with their common and commercial meanings, which are presumed to be the same. Nippon Kogaku (USA) Inc. v. United States, 673 F.2d 380 (1982). Congress is presumed to know the language of commerce and to have framed tariff acts so as to classify commodities according to general usage and denomination of the trade. Nylos Trading Company v. United States, 37 CCPA 71, C.A.D. 422 (1949). To ascertain the common [and commercial] meaning [of a tariff term], in addition to relying upon its own understanding of the terms used, the courts may consult dictionaries, lexicons, the testimony of record, and other reliable sources of information as an aid to its knowledge. Pistorino & Co., Inc. v. United States, 461 F. Supp. 331, 334 (1978).

In the instant case, a representative dictionary definition of the common and commercial meaning of a pompon states the following:

pompon - an ornamental ball or tuft of silk, wool, feathers, etc., used on clothing, draperies, etc. Webster's New World Dictionary, Third College Edition (1988).

Although the sample pompon is not the type specifically described in the Explanatory Notes to Heading 5808, HTSUSA, it clearly falls within the purview of the dictionary definition of a pompon which is one representation of the common and commercial meaning of the article. Thus, it is our position that the above definition further substantiates our classification of the sample merchandise as a "pompon or similar article."

Based on Additional U.S. Rules of Interpretation 1(c), a specific provision for a part or accessory prevails over any general provision for such part or accessory. It is clear that subheading 5808.90.00, HTSUSA, is a more specific provision for the subject merchandise and thus prevails over the more general subheading 9506.70.60, HTSUSA, which covers parts and accessories for roller skates or ice skates.

You claim that the sample merchandise is excepted from classification in view of the exclusionary language employed in Legal Note 1(t) to Section XI which covers textiles and textile articles. This note excludes from Section XI, of which Chapter 58 is a part, "Articles of Chapter 95 (for example, toys, games, sports requisites and nets). It is our position, however, that the pompons are not parts and accessories, since based on Legal Note 3 to Chapter 95, they are not "suitable for use solely or principally" with ice skates or roller skates. Although the pompons may be marketed and sold for use with roller skates and ice skates, they may also be used as decoration for other types of athletic footwear. The sample pompons are not a recognized article associated exclusively with ice skates and roller skates. Thus, it is our position that the exception in Legal Note 1(t) does not apply in the instant case.

HOLDING:

Based on the foregoing analysis, the sample pompons are properly classifiable under subheading 5808.90.0010, HTSUSA, which provides for braids in the piece; ornamental trimmings in the piece, without embroidery, other than knitted or crocheted; tassels, pompons and similar articles: Other. . .Of cotton; of man-made fibers. Articles classifiable under this subheading are subject to a 7.8 percent ad valorem rate of duty. This merchandise also falls within textile category designation 229. Based upon international textile trade agreements, products of Korea are subject to quota and the requirement of a visa. NYRL 847787, is hereby affirmed.

The designated textile and apparel category may be subdivided into parts. If so, the 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 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 updated weekly and 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, 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
Commercial Rulings Division