HQ 0950941 - Bear Bubble Bottle - United States International Trade Commision Rulings

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HQ 950941

July 22, 1992

CLA-2 CO:R:C:F 950941 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 7117.90.5000

Mr. Robert P. Rait
12 West 37th Street
New York, N.Y. 10018

RE: Bear Bubble Bottle

Dear Mr. Rait:

This is in response to your inquiry of December 23, 1991, requesting the tariff classification of merchandise marketed by Almar Sales Co. as "Bear Bubble Bottle" to be imported from Taiwan. A sample was provided with your inquiry.

FACTS:

The sample submitted is a bear-shaped bubble bottle made of translucent, pink colored plastic, attached to an orange textile cord that is intended to be worn on the neck. The bottle is approximately 2-3/4 inches in height, from the top of the pink cap to the bottom paws, and is filled with bubble solution. A plastic wand for blowing bubbles is attached to the inside of the bottle's cap. The bottle is attached to the cord by a removable plastic "C" clasp around the neck of the bottle.

No packaging or marketing literature was provided with the sample. In a telephone conversation of April 7, 1992, you stated that these items are sold both in blister packaging and with no packaging, hanging as "attention-getters" by cashier stands. Upon our request, you provided a section of a catalog which depicts the blister packaging that is often used for the retail sale of the merchandise. The package displays an actual picture of a little girl playing "dress-up", wearing a fancy flower arrangement in her hair, a bracelet on her arm, and various other adorning items including your "Bear Bubble Bottle." The words "Bear Bubble Bottle" also appear on the package as well as the drawings of bubbles that are blue, pink and yellow in color.

You further stated in the above mentioned telephone conversation that the bottles are available in shapes other than bears (most of them are heart-shaped, but may also be shaped as perfume bottles and seashells). Your price for these items is over 5 cents per piece or unit.

ISSUE:

Whether the Bear Bubble Bottle is classified as imitation jewelry or as a toy?

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's). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, 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's may then be applied.

In this instance, the subject merchandise can be classified by reference to GRI 1. The competing provisions are as follows:

1. Subheading 7117.90.5000, HTSUSA, the provision for Imitation jewelry, other, other, valued over 20 cents per dozen pieces or parts, and,

2. Subheading 9503.90.6000, HTSUSA, the provision for Other toys, other, other, other toys (except models), not having a spring mechanism.

It is our determination that this merchandise is properly classified under subheading 7117.90.5000, HTSUSA. Note 8 to Chapter 71 sets out the broad sweep of the term "jewelry" in stating that, for the purposes of the jewelry provision (heading 7113), the expression "articles of jewelry" means "[A]ny small objects of personal adornment (gem-set or not) (for example, rings, bracelets, necklaces, brooches, earrings, watch chains, fobs, pendants...)." Note 10 to Chapter 71 applies Note 8 specifically to the merchandise and heading at issue here by stating that "[F]or the purposes of heading 7117, the expression "imitation jewelry" means articles of jewelry within the meaning of paragraph (a) of note 8 above...."

We also note that footnote 1 of the general rate of duty column for subheading 7117.90.5000, HTSUSA, refers us to subheading 9902.71.13, HTSUSA, which temporarily suspends duties on some items valued not over 5 cents per piece or unit. This provision specifically includes "[T]oy jewelry" in subheading 7117.90.5000, HTSUSA, as well as in various other provisions of Chapter 71. The duty rate on the subject merchandise is not suspended, however, because the merchandise is valued at over 5 cents per piece.

The determination that the Bear Bubble Bottles should be classified as imitation jewelry is consistent with a long line of Customs Rulings concerning similar bubble jewelry merchandise including Headquarters Ruling Letter (HRL) 089523, dated January 6, 1992, and the following New York Ruling Letters (NYRLs): NYRL 863525, dated June 14, 1991; NYRL 863507, dated June 13, 1991; NYRL 861617, dated March 29, 1991; NYRL 856320, dated October 2, 1990; NYRL 856151, dated September 19, 1990, and NYRL 855676, dated September 7, 1990.

In your December 23 inquiry and in our telephone conversations you raise several arguments. These arguments relate to your contention that the "primary function" of this item is as a novelty or a toy and that the cord is no more important to its function than the carrying strap is to the function of a camera. We addressed similar arguments in the above cited HRL 089523, and are enclosing a copy of that ruling. The only real difference between the issues involved herein and the issues involved in the classification of the similar merchandise at issue in HRL 089523 is that the prior merchandise was actually marketed as a "Bubble Pendant" (emphasis added). However, your merchandise is clearly marketed toward little girls for the use of adornment as shown by the picture on the packaging. The other shapes in which these bottles are available, i.e., mostly "heart-shaped" but also shaped as perfume bottles and seashells, are shapes that are well suited for adornment purposes.

HOLDING:

The merchandise marketed as "Bear Bubble Bottle" is classified in subheading 7117.90.5000, HTSUSA, the provision for
imitation jewelry, other, other, valued over 20 cents per dozen pieces or parts, and is dutiable at a rate of 11 percent ad valorem.

Sincerely,

John Durant, Director

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