HQ 957677 - Protest 2704-94-101090; Imitation jewelry;; Necklace, lip balm; HRL's 082265, 083644, 956001, 956566 - United States International Trade Commision Rulings

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HQ 957677

June 7, 1995

CLA-2 R:C:M 957677 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7117.90.50

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

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