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