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HQ 962079




December 15, 1999

CLA-2 RR:CR:TE 962079 SS

CATEGORY: CLASSIFICATION

TARIFF NO.: 5609.00.3000

Ms. Joanne Balice
CBI Distributing Corp.
2400 W. Central Road
Hoffman Estates, Il 60195-1930

RE: Request for Ruling on ACheerleading Pom Pom@; Heading 5609, HTSUSA; Not Trimming; Not APompons@ Within the Meaning of Heading 5808, HTSUSA and Explanatory Note (B) to Heading 5808, HTSUSA.

Dear Ms. Balice:

This is in response to your request dated June 17, 1998, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a Cheerleading Dress Up Skirt, Dress Up Vest and Pom Pom. A sample of each article was submitted with your request. The classification of the skirt and vest were addressed separately in New York Ruling (NY) C98325, dated July 16, 1998. Accordingly, this ruling only pertains to the ACheerleading Pom Pom.@

FACTS:

The submitted sample, identified by style number 200-P, is described by the importer as a APom Pom.@ The article is a Apom pom@ used in cheering activities. The APom Pom@ is composed of lurex-type strip with a width of less than 5 millimeter. The man-made textile strips, measuring approximately two feet in length, are gathered in the center and attached to a 4-1/2 inch plastic handle.

ISSUE:

What is the proper tariff classification for the ACheerleading Pom Pom@?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings 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.

Section XI, Textiles and Textile Articles, HTSUSA, Note 1(g), states that the section does not cover: AMonofilament of which any cross-section dimension exceeds 1 mm or strip or the like (for example, artificial straw) of an apparent width exceeding 5 mm, of plastics (chapter 39), or plaits or fabrics or other basketware or wickerwork of such monofilament or strip (chapter 46).@ The width of the flat synthetic strips on the subject APom Pom@ does not exceed 5 mm. Thus, for the purposes of tariff classification under the HTSUSA, the synthetic strips on the ACheerleading Pom Pom@ are considered a textile.

Pompons are an eo nomine exemplar of heading 5808, HTSUSA. Heading 5808, HTSUSA, provides for A[b]raids in the piece, ornamental trimmings in the piece, without embroidery, other than knitted or crocheted; tassels, pompons and similar articles.@ However, upon closer examination it is clear that the subject ACheerleading Pom Poms@ are not Apompons@ within the meaning of heading 5808, HTSUSA.

Chapter 58 covers ASpecial Woven Fabrics; Tufted Textile Fabrics; Lace; Tapestries; Trimmings; Embroidery.@ The subject APom Poms@ are not similar to such articles. Upon a review of the layout of chapter 58, HTSUSA, it appears that pompons of heading 5808, HTSUSA, are included within the ATrimmings@ portion of the chapter. Furthermore, a review of the Alphabetical Index at the end of the HTSUSA indicates that pompons of heading 5808, HTSUSA, are Afor trimmings.@ See page 50 of the Alphabetical Index. The instant ACheerleading Pom Poms@ are not for trimmings.

Explanatory Note (B) to heading 5808, HTSUSA (Explanatory Note (B)), covers ATASSELS, POMPONS AND SIMILAR ARTICLES.@ Unlike the remainder of the products in the heading which are products in the length designed for the ornamentation or decoration of articles of apparel or of furnishing articles, Explanatory Note (B) states that tassels, pompons and similar articles are separate individual articles. APompons@ are described in Explanatory Note (B) as Ai.e., short threads secured together in the middle and fluffed out in all directions.@ Explanatory Note (B) states that the articles are of general use mainly in furnishing but also to a
lesser extent for clothing. The articles may have a loop for attachment purposes and are predominantly ornamental in character. The EN to heading 5808, HTSUSA, specifically states that the heading does not include individual articles other than those mentioned in the EN.

The instant ACheerleading Pom Poms@ are not Apompons@ as contemplated by the Explanatory Notes. The ACheerleading Pom Poms@ are not used in furnishing nor for clothing. There are no loops or other features which would suggest that the subject merchandise is for ornamentation. The ACheerleading Pom Poms@ are used primarily in cheering activities. Although the subject merchandise is similar in construction to the pompons described in Explanatory Note (B), it is not used as trimming or for decoration. The EN to heading 5808, HTSUSA, define the scope of the heading. The ACheerleading Pom Poms@ are not of the same nature as the articles described in the EN. Just because the article is called a APom Pom@ does not make it a Apompon@ classifiable under heading 5808, HTSUSA. Accordingly we find that the instant ACheerleading Pom Poms@ are not Apompons@ within the meaning of heading 5808, HTSUSA, and are thus excluded from the heading.

In Headquarters Ruling Letter (HQ) 086286, dated April 8, 1990, Customs classified articles called Apompons@ as articles similar to pompons under heading 5808, HTSUSA. The pompons were approximately 2-1/2 inches in diameter and had an attached cord which was used to tie the pompons to ice skates or roller skates. They had an outer surface of man-made fiber textile construction and were stuffed with a plush ground cloth also made of man-made fibers. Customs found that the pompons at issue did not meet the definition of Apompons@ as described in Explanatory Note (B), in that they were not made of short threads secured together in the middle. However, since they were similar to the enumerated articles, Customs found that the pompons were of the same class or type of good intended to be included within heading 5808, HTSUSA. Customs relied on the fact that the pompons had a cord which facilitated attachment to other objects and determined that the article was used only for decorative or ornamental purposes. To further substantiate its position, Customs pointed to a dictionary definition from Webster=s New World Dictionary, Third College Edition (1978) which defined the term Apompon@ as Aan ornamental ball or tuft of silk, wool, feathers, etc. used on clothing, draperies, etc.@ Although the pompons were not the type specifically described in Explanatory Note (B), Customs found that they fell within the purview of the dictionary definition of a pompon and classified them under heading 5808, HTSUSA.

The ACheerleading Pom Poms@ are distinctly different from the pompons that were the subject of HQ 086286. Obviously the subject APom Poms@ are much larger than the skate pompons and serve an entirely different purpose. They do not meet the dictionary definition of Apompons@ in that they are not ornamental or used on clothing or drapes. Furthermore, the ACheerleading Pom Poms@ are not of the same class or kind as the pompons of heading 5808, HTSUSA. We also consulted Webster=s II New Riverside University Dictionary (1984) which defines Apompoms,@ in relevant part, as Aa tuft or ball of material, as cotton, wool or feathers,
worn as a decoration.@ The instant APom Poms@ are not worn for decoration. Considering these factors, the ACheerleading Pom Poms@ are not classifiable as articles similar to pompons under heading 5808, HTSUSA.

An argument has been raised that ACheerleading Pom Poms@ are tassels or a similar article covered by heading 5808, HTSUSA. Explanatory Note (B) indicates that the heading includes tassels of all sizes and shapes and simple bundles of textile threads folded or bound with the ends hanging loose. Although the ACheerleading Pom Pom@ resembles a very large tassel when held pointing down, we do not believe that the heading was meant to cover the subject APom Poms.@ The subject APom Poms@ are used for entirely different purposes than any of the named exemplars or articles described in heading 5808, HTSUSA, and Explanatory Note (B). For rulings describing tassels covered by heading 5808, HTSUSA, see HQ 953230, dated March 3, 1993 (graduation tassels) and HQ 957248, dated March 3, 1995 (decorative hanging tassel). Accordingly, we find that the ACheerleading Pom Poms@ are not classifiable as tassels or similar articles under heading 5808, HTSUSA.

We note that there are numerous Customs rulings on clothing or other articles which have Apompons@ present as decoration or ornamentation. See HQ 082984, dated October 23, 1989 (clown outfit); HQ 084601, dated September 8, 1989 (lion outfit); HQ 084731, dated September 7, 1989 (clown outfit); HQ 088575, dated May 31, 1991 (clown outfit); HQ 951301, dated July 16, 1992 (playsuit); HQ 953037, dated April 5, 1993 (doll clothing); HQ 957948, May 7, 1996 (clown outfit); HQ 084288, dated July 6, 1989 (santa hat); HQ 085321, May 10, 1990 (scarecrow figure); HQ 087321, dated August 10, 1990 (infant bonnet); HQ 951350, dated October 30, 1992 (Christmas stocking); HQ 983032, dated July 13, 1990 (doll dress); HQ 950792, dated March 31, 1992 (infant hats) and HQ 950933, dated March 25, 1992 (floral picks). We find that these rulings exemplify the type of pompons that are meant to be included in heading 5808, HTSUSA. Based on the above, the subject ACheerleading Pom Poms@ are beyond the scope of heading 5808, HTSUSA.

Heading 5609, HTSUSA, covers, among other things, articles of strip or the like of heading 5404. Chapter 54, HTSUSA, provides for man-made filaments. Heading 5404, HTSUSA, covers, inter alia, strip and the like of synthetic textile materials of an apparent width not exceeding 5 mm. As stated earlier, the width of the subject strips does not exceed 5 mm. As such, the ACheerleading Pom Poms@ are classifiable under heading 5609, HTSUSA, as articles of strip of heading 5404, HTSUSA. However, this does not end our inquiry.

The ACheerleading Pom Poms@ consist of both textile strips and plastic handles. The plastic handles would be classifiable under heading 3926, HTSUSA, which provides for, among other things, other articles of plastics. GRI 2(b) directs that classification of goods consisting of more than one material shall be according to GRI 3. GRI 3(a) states that the heading which provides the most specific description is to be preferred to a heading which provides a more general description. However, when two headings each refer to a part only of the materials or substances contained in composite goods, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description than the other. Since headings 5609 and 3926, HTSUSA, cover only a part of the ACheerleader Pompom,@ the headings are considered to be equally specific. In such circumstances, the EN direct that classification of the goods shall be determined by GRI 3(b).

GRI 3(b) states that goods composed of mixed or combined materials are classifiable as if they consisted wholly of the material or component which gives them their essential character. Factors which determine essential character may include bulk, quantity, weight, value or the role of a constituent material in relation to the use of the goods. Explanatory Note VII to GRI 3. In this instance, we find that the synthetic textile strips provide the essential character of the APom Poms.@ The strips are primary to the use of the good. Accordingly, the ACheerleading Pom Poms@ are classifiable under heading 5609, HTSUSA. This is consistent with HQ 960805, dated August 22, 1997, in which similar cheerleading pompons were found to have their essential character imparted by the synthetic strips and were classified in heading 5609, HTSUSA.

To the extent that New York Ruling B83581, dated June 17, 1997, and issued to another party, is inconsistent with the reasoning set forth in this ruling, please be advised that it is being considered for possible modification.

HOLDING:

The ACheerleading Pom Poms@ are classifiable under subheading 5609.00.3000, HTSUSA, which provides for AArticles of yarn, strip of the like of heading 5404 or 5405, twine, cordage, rope or cables, not elsewhere specified or included: Of man-made fibers.@ The general column one duty rate is 6.8 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division


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