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HQ 965912




June 25, 2003

CLA-2 RR:CR:GC 965912 TF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6701.00.3000

Mr. Kim Young
BDP International, Inc.
2721 Walker NW
Grand Rapids, MI 49504

RE: Revocation of NY C88185; children’s feather boa; Chapter 95, HTSUSA; Midwest of Cannon Falls, Inc. v. United States; HQ 963561, dated January 24, 2002

Dear Mr. Young:

Pursuant to your request dated May 20, 1998 for a binding tariff classification ruling of certain children’s feather boa on behalf of your client Meijer, Inc., Customs issued NY C88185, dated June 5, 1998. In NY C88185, Customs classified the subject children’s feather boa as a festive article within subheading 9505.90.6000, Harmonized Tariff Schedule of the United States Annotated.

Upon review, the Bureau of Customs and Border Protection (CBP) has determined that the merchandise was erroneously classified. This ruling letter sets forth the correct classification determination.

Pursuant to section 625(c), Tariff Act of 1930, as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub.L. 103-182, 107 Stat. 2057, 2186 (1993) notice of the proposed revocation of NY C88185 was published on May 7, 2003, in Vol. 37, No.19 of the CUSTOMS BULLETIN. One timely received comment was submitted in response to this notice.

FACTS:

"Dazzling Dreams Feather Boa," item #862335, is made up of turkey feathers and measures five feet in length. The boa is available in purple, pink and white colors. It will be imported wrapped around a hanger-style cardboard for display purposes. It is indicated in the facts of NY C88185 that the article is marketed for use by children in playing "dress-up."

ISSUE:

What is the classification of the subject children’s feather boa?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1, HTSUS, provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, HTSUS, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6, HTSUS, may be applied.

The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System are the official interpretation of the Harmonized System at the international level. The ENs, although not dispositive provide a commentary on the scope of each heading of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Chapter 67, HTSUSA, provides for, 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).” EN 67.01(B)(3) states that heading 6701 includes “Trimmings made of birds, parts of birds, of feathers or down, for hats, boas [emphasis added], collars, capes or other articles of apparel or clothing accessories.”

Customs has previously classified feather boas within heading 6701, HTSUSA, see HQ 963561, dated January 24, 2002, referring to 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.

In HQ 963561, the importer contended that the boas were classifiable as festive articles under heading 9505, HTSUSA, on the basis that they were not apparel items, but Halloween costume accessories. The importer also claimed the boas were not the same as boas of heading 6701 because they were sold at a lower price, made of turkey feathers, lack substantial backing and when shaken, they would release dye when handled. In HQ 963561, Customs rejected the importer’s arguments and stated that in general, feather boas are not contemplated by the EN to heading 9505, HTSUSA.

An article may be classified in heading 9505 if it meets the "class or kind" criteria for festive articles as provided for in Midwest of Cannon Falls, Inc. v. United States, 122 F.3d. 1423 (Fed. Cir. 1997). In this case, the Court addressed the scope of heading 9505, specifically the class or kind of merchandise termed "festive articles," and provided new guidelines for classification of such goods in the heading. It then applied its conclusions to 29 specific articles to determine whether they were included within the scope of the class of "festive articles". In general, merchandise is classifiable as a festive article in heading 9505, when the article, as a whole:

1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal; 2. Functions primarily as a decoration or functional item used in the celebration of and for entertainment on a holiday; and 3. Is associated with or used on a particular holiday.

In this instance, although the subject boa is marketed for children to be used in playing “dress-up”, it fails to satisfy any of the Midwest criteria. We refer you to HQ 963561, which states, in pertinent part:

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 [sic] 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.

Therefore, as the subject boa is not a festive article within heading 9505, and it is substantially similar to the boas in the aforementioned rulings, the subject boa is classifiable under subheading 6701.00.3000, HTSUSA, as an article of feathers.

For your reference, HQ 963561 is enclosed.

HOLDING:

NY C88185, dated June 5, 1998, is hereby revoked. Based on the foregoing, the feather boa is 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.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN.

Sincerely,

Myles B. Harmon, Director


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