CLA-2 R:C:M 957677 DFC
District Director of Customs
300 South Ferry St
Terminal Island, CA 90731
RE: Protest 2704-94-101090; Imitation jewelry;; Necklace, lip
balm; HRL's 082265, 083644, 956001, 956566
Dear District Director:
This is in response to Protest 2704-94-101090 concerning
your action in classifying and assessing duty on an article
referred to as a lip balm necklace, produced in Hong Kong. A
sample was submitted for examination. In preparing this decision
consideration was given to a supplemental submission of May 17,
1995, from counsel to the protestant
FACTS:
The sample is an empty rigid plastic container attached to a
coordinating colored textile cord permitting it to be worn around
the neck in the manner of a necklace or pendant. The container
measures approximately 3-1/2 inches in length and is in the form
of four miniature heart shapes which are vertically connected one
to the other. Each one of the four heart shapes is decorated in
a different shade of pink. The container opens and closes by
means of two plastic hinges and is imported empty into the U.S.
Presumedly, it will be filled with lip balm after importation.
The entries covering this merchandise were liquidated
starting on February 11, 1994, under subheading 7117.90.50,
Harmonized Tariff Schedule of the United States (HTSUS), which
provides for imitation jewelry, other, other, valued over 20
cents per dozen pieces or parts. The protest against these
liquidations was timely filed on April 1, 1994.
Counsel for protestant claims that the merchandise is
classifiable under subheading 3926.90.95, HTSUS, which provides
for other articles of plastics, other, other.
ISSUE:
Does the lip balm necklace qualify as "imitation jewelry"
for tariff purposes?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes, and, provided
such headings or notes do not otherwise require, according to
[the remaining GRI's]." In other words, classification is
governed first by the terms of the headings of the tariff and any
relative section or chapter notes.
The competing provisions are as follows:
3926 Other articles of plastics and articles of other
materials of heading 3901 to 3914
* * *
3926.90 Other:
* * *
3926.90.95 Other . . . . . .
* * *
7117 Imitation jewelry:
* * *
Other:
* * *
Other:
* * *
7117.90.50 Valued over 20 cents per dozen
pieces or parts . . . . .
* * *
9503 Other toys; reduced-size ("scale") models and similar
recreational models, working or not; puzzles of all
kinds; parts and accessories thereof:
In the supplemental submission, protestant's counsel now
contends as an alternative claim that the article is classifiable
as a toy by virtue of its diversion and "amusement" features.
We disagree with the assertion of counsel that the
merchandise is classifiable as a toy under heading 9503, HTSUS,
because it is clearly not intended to be principally used by a
child as a source of fun, amusement or unique diversion and does
not meet the definition of the term "toy" See, e.g. Headquarters
Ruling Letter (HRL) 082001 dated February 13, 1990. See, also
HRL 956566 dated August 31, 1994.
Counsel asserts that the merchandise is not classifiable as
imitation jewelry under heading 7117, HTSUS, because it is not in
the familiar shape and design of usual and customary jewelry-type
pendants and a young child would therefore not likely be
interested in the article for its imitation jewelry aspect.
Further, counsel urges that despite the presence of the
textile cord which enables the user to wear the plastic container
around the neck, the item is of the class or kind of merchandise
commonly recognized and understood to be an other article of
plastic classifiable under subheading 3926.90, HTSUS.
In support of this position, counsel considers the lip balm
necklace as analogous to ski wallets with a neck strap for wear
around the neck which was the subject of HRL 082265 dated March
20, 1989. In that ruling Customs concluded that the ski wallet
was of a kind that would normally be carried in the pocket or
purse despite being intended to be worn around the neck while
skiing. For additional support, counsel cites HRL 083644 dated
April 23, 1989, wherein Customs considered the tariff
classification of a travel pouch with a lanyard for wear around
the neck and concluded that the item was ordinarily carried in
the pocket or in the handbag and was small enough that it could
be carried in the pocket or in the handbag.
It is our opinion that the lip balm necklace is not
analogous to the ski wallet with a neck strap and the travel
pouch with a lanyard for wear around the neck. Our rationale for
this position is that the lip balm necklace, which will be worn
by young children, will normally not be carried in the pocket or
purse, but rather will be normally worn around the child's neck.
Further, as a practical matter, the lip balm necklace is less
liable to get lost if it is worn around the neck and it is more
convenient for the child to apply the lip balm.
Notes 8 and 10 to "Chapter 71, HTSUS, state, in pertinent
part, that the expression "imitation jewelry" includes any small
object of personal adornment (gem-set or not) such as rings,
bracelets, necklaces, brooches, earrings, watch chains, fobs,
pendants, etc., not incorporating pearls, precious metal or
precious or semiprecious stones.
Note 2(n) to Chapter 39, HTSUS, states that '[t]his chapter
does not cover: . . . [i]mitation jewelry of heading 7117."
On September 21, 1994, Customs published a notice in the
Customs Bulletin, Volume 28, Number 38, modifying and revoking
certain HRL's and New York Ruling Letters (NYRL's) relating to
the tariff classification of a water gun attached to a textile
cord and toy bubble necklaces comprised of plastic bottles filled
with bubble solution and accompanied by a wand attached to a
textile cord. Specifically, ruling letters were issued holding
that these products are classifiable under subheading 9503.90.60,
HTSUS, as toys, rather than under subheading 7117.90.50, HTSUS,
as imitation jewelry.
We agree with counsel's assertion that Customs has concluded
that the bubble necklaces are not within the ambit of items
commonly understood or considered to be jewelry, even though they
were designed to be worn around the neck. We also agree with his
statement that the neck cord does not transmute the plastic case
into an article of jewelry anymore than the textile carrying cord
or wearing straps of a camera, bubble necklace or pair of
binoculars makes such items jewelry.
However, the lip balm necklace can be distinguished from the
water gun attached to a textile cord and the bubble necklaces.
The water gun and the plastic bottles and bubble solutions are
clearly toys, i.e., principally used for amusement. However, the
rigid plastic container attached to the textile cord (lip balm
necklace) is not a toy for tariff purposes for reasons previously
stated.
Further, we note that neither the water gun nor the plastic
bottles with bubble solution are worn for adornment, whereas the
lip balm necklace decorated with pink heart shapes and a
coordinating colored textile cord with a matching clasp is worn
around the neck as adornment. It is also invoiced and advertised
as a necklace. In HRL 956001 dated June 20, 1994, Customs ruled
that a "Pendant Perfume" which is a small, transparent, heart-
shaped, metal-capped plastic bottle [filled with "perfume"],
suspended on a steel chain is classifiable under heading
7117.90.50, HTSUS, as imitation jewelry.
In view of the foregoing, it is our opinion that the lip
balm necklace meets the definition of "imitation jewelry" set out
in Notes 8 and 10 to Chapter 71, HTSUS, supra.
HOLDING:
The lip balm necklace is dutiable at the rate of 11% ad
valorem under subheading 7117.90.50, HTSUS.
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, this decision together
with the Customs Form 19, should be mailed by your office to the
protestant, through counsel, no later than 60 days from the date
of this letter. Any reliquidation of the entry in accordance
with the decision must be accomplished prior to mailing of the
decision. Sixty days from the date of the decision the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and the public via the Diskette Subscription Service, Freedom
of Information Act and other public access channels.
Sincerely
John Durant, Director
Commercial Rulings Division