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HQ 964861




January 24, 2002

CLA-2 RR:CR:TE 964861 SS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6701.00.3000

Ms. Vera Adams, Port Director
Los Angeles-Long Beach Seaport
U. S. Customs Service
300 S. Ferry Street
Terminal Island, CA 90731

RE: Decision on Application for Further Review of Protest 2704-00-103186; Classification of Feather Boas

Dear Ms. Adams:

This is in response to the Application for Further Review of Protest Number 2704-00-103186 filed by the importer, Consolidated Stores, contesting the classification of feather boas which you forwarded to our office for review on February 21, 2001. One sample was forwarded for examination. The Protestant disagrees with the decision of the port to liquidate the subject merchandise under subheading 6701.00.3000, HTSUSA, as articles of feathers, with a 4.7 percent rate of duty, and claims that the merchandise was properly classified under subheading 9505.90.6000, HTSUSA, as festive articles, with a free rate of duty.

The Application for Further Review of Protest was timely filed and is proper pursuant to Part 174 of the Customs Regulations (19 CFR 174).

FACTS:

The articles under protest are feather boas measuring approximately 5 inches in width and 5 feet in length. The boas are available in white, blue, pink and lilac. The boa is described by the importer as a child’s feather boa and is advertised as “5 feet of glamour.”

ISSUE:

Whether feather boas are properly classifiable under heading 6701, HTSUSA, as articles of feathers, or under heading 9505, HTSUSA, as festive articles, carnival or other entertainment articles?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI taken in order. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings.

Chapter 67, HTSUSA, covers, among other things, articles made of feathers. Heading 6701, HTSUSA, provides for “[s]kins and other parts of birds with their feathers or down, feathers, parts of feathers, down and articles thereof (other than goods of heading 0505 and worked quills and scapes).” The EN to heading 6701, HTSUSA, state that the heading covers articles made of feathers including feather boas. Customs has previously classified feather boas under heading 6701, HTSUSA. See New York Ruling Letter (NY) A83686, dated July 3, 1996; Port Ruling Letter (PD) C83873, dated February 24, 1998; NY F80244, dated December 9, 1999 ; NY F82788, dated March 6, 2000; and NY F87231, dated June 15, 2000. Thus, the instant feather boas are classifiable under subheading 6701.00.3000, HTSUSA, as articles of feathers.

However, the Protestant claims the instant feather boas are classified as festive articles under heading 9505, HTSUSA. Heading 9505, HTSUSA, provides for “[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof.” The EN to heading 9505, HTSUSA, state that the heading covers:

Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. They include:

(3) Articles of fancy dress, e.g. masks, false ears and noses, wigs, false beards and moustaches (not being articles of postiche - heading 67.04), and paper hats. However, the heading excludes fancy dress of textile materials of Chapter 61 or 62.

Customs finds that, in general, feather boas are not contemplated by the EN to heading 9505, HTSUSA. The instant feather boas are made of durable material and are not similar to one time party items like a paper hat. Customs has classified similar boas made of dyed chicken feathers, goose feathers and turkey feathers under heading 6701, HTSUSA. See PD C83873, dated February 24, 1998; PD F80244, dated December 9, 1999; and NY F87231, dated June 15, 2000. Furthermore, Customs has classified feather boas made by twisting and tying feathers to a yarn similar to the instant feather boas under heading 6701, HTSUSA. See PD F80244, dated February 24, 1998. We note that the instant feather boas are fluffy and full. The boas are durable and well-made; even after extensive handling there was no shedding or release of dye. Accordingly, we find that the instant feather boas are not festive articles contemplated by the EN to heading 9505, HTSUSA.

The Protestant claims that the instant boas should be classified under heading 9505, HTSUSA, because they are flimsy, lacking durability and are marketed for use by children. The importer cites to NY C88185, dated June 5, 1998, in which a feather boa was classified under heading 9505, HTSUSA. The boa was described as being made of turkey feathers and measuring five feet in length. Additionally, in NY C88189, dated June 9, 1998, Customs classified a feather boa under heading 9505, HTSUSA. In both rulings Customs stated that the boas were considered to be of flimsy construction, lacking in durability and generally not recognized as being normal articles of apparel. It is evident that these two rulings followed the standard relating to the classification of textile costumes. Customs classifies textile costumes of a flimsy nature and construction, lacking in durability, and generally recognized as not being a normal article of apparel, as festive articles of heading 9505, HTSUSA. See HQ 957318, dated October 18, 1994. However, since the feather boas were not textile costumes, the flimsy/non-flimsy standard was improperly applied. Accordingly, this office is in the process of reviewing the rulings to determine whether or not they should be the subject of a proposed revocation notice.

In HQ 961728, dated April 8, 1999, Customs found that the flimsy/non-flimsy textile costume test was only to be used when the competing provisions were within chapter 61 or 62, HTSUSA, and heading 9505, HTSUSA. The analysis does not apply to goods classifiable outside chapter 61 or 62, HTSUSA, such as hats of chapter 65, HTSUSA. Customs specifically stated that although the issue was whether the hats could be classified as “articles of fancy dress” of heading 9505, HTSUSA, the analysis of determining whether an article is wearing apparel of chapter 61 or 62, HTSUSA, or an “article of fancy dress” was not applicable. In refusing to classify five styles of “novelty hats” as festive articles of heading 9505, HTSUSA, Customs stated that the decision in Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed. Cir. 1997) provided new guidelines for the classification of “festive articles.” In general, merchandise is classifiable in heading 9505, HTSUSA, as a “festive article” when the article as a whole:

Is not predominantly of precious or semiprecious stones, precious metal or metal clad with precious metal;

Functions primarily as a decoration or functional item used in celebration of and for entertainment on a holiday; and

Is associated with or used on a particular holiday.

Customs found that the hats were not classifiable as festive articles since there was no evidence that the “novelty hats” were used in celebration of and for entertainment on a holiday or that any of them were a symbol of, associated with or used on a particular recognized holiday. Applying this rationale to the instant feather boas, the feather boas are not used in celebration of and for entertainment on a holiday and are not associated with or used on a particular holiday. Furthermore, it appears the instant feather boas are sold throughout the entire year. Accordingly, the feather boas are not classified under heading 9505, HTSUSA, as festive articles pursuant to the decision in Midwest of Cannon Falls.

Feather boas are articles of feathers. Boas come in all sizes, lengths, colors and quality. All feather boas will be used the same way, regardless of quality, as an accessory or accent article to some outfit. Whether the feather boas is accessorizing a Las Vegas show girl, a Hollywood star, a Halloween beauty queen or a little girl’s dress up fantasy, it is being used the same way and should be classified uniformly.

HOLDING:

Based on the foregoing, the feather boas are classifiable under subheading 6701.00.3000, HTSUSA, which is the provision for articles of feathers. The applicable rate of duty is 4.7 percent ad valorem.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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