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HQ 960137





December 12, 1998

CLA-2 RR:TC:FC 960137 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7117.90.50

Port Director
U.S. Customs Service
300 S. Ferry Street
Terminal Island, CA 90731

RE: Protest 2704-94-101898; Teapot Necklace Surprise

Dear Port Director:

The following is our response to protest 2704-94-101898 concerning your classification decision regarding an article identified as a "Teapot Surprise Necklace", under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was submitted for our review.

FACTS:

The article is described as a "Teapot Surprise Necklace." It is a plastic teapot shaped pendant hung on a textile cord. The pendant measures 1« inches high and 1« inches wide. The bottom of the teapot separates from the remainder and reveals plastic bunny rabbit figurines drinking tea. The manufacturer's invoice describes the articles as "nesting necklaces." Packaging for the article states:

Slide upper part of teapot up the cord to see the "bunny" pop out. CLEANING INSTRUCTIONS: Wipe with a damp cloth, dry with a soft one. Do not immerse in water or jewelry cleaner. WARNING: NOT INTENDED FOR CHILDREN UNDER THREE. CONTAINS SMALL PARTS WHICH MAY CAUSE CHOKING. CREATED IN CHINA EXCLUSIVELY FOR AVON PRODUCTS, INC., DISTR.

Protestant was directed to enter the necklace under subheading 7117.90.50, HTSUS, as "Imitation jewelry: Other: Other: Valued over 20 cents per dozen pieces or parts." Protestant asserts that the articles are classifiable under subheading 9503.90.60, HTSUS, as "Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; and accessories thereof: Other: Other toys (except models), not having a spring mechanism." The entries were made in December of 1993 and January and February of 1994. The entries were liquidated in April , May and June of 1994. A protest was timely filed on July 5, 1994. The headings under consideration are as follows:

7117 Imitation Jewelry

9503 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; and accessories thereof

ISSUE:

Whether the plastic "Teapot Surprise Necklace" is classified as an article of imitation jewelry or as a toy?

LAW AND ANALYSIS:

Classification under the HTSUS 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. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI's.

Protestant makes three assertions: that the presence of the textile cord which enables the user to wear the plastic teapot around the neck does not automatically indicate that the "Teapot Surprise Necklace" is classifiable as imitation jewelry; that the "Teapot Surprise Necklace" is not described by the heading "imitation jewelry" because it is not in the familiar shape and design of usual and customary jewelry-type pendants; and that the "Teapot Surprise Necklace" is classifiable as a toy by virtue of its diversion and "amusement" features.

Protestant, in support of the textile cord position, asserts that the "Teapot Surprise Necklace" is analogous to ski wallets with a neck strap for wear around the neck. Such ski wallets were the subject of Headquarters Ruling Letter (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, protestant 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 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 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 teapot portion of the necklace is less liable to get lost if it is worn around the neck. For a further discussion of the classification of articles on cords or straps see HRL 957677 dated June 7, 1995, which classified lip balm on a textile cord as imitation jewelry.

Notes 8 and 10 to Chapter 71, HTSUS, (now Notes 9 and 11) state, in pertinent part, that the scope of the term "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.

A series of cases, including HRLs 952296 dated December 15, 1992, 956566 dated August 31, 1994, and 953102 dated April 26, 1993, 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, applied former Notes 8 and 10 to determine whether the articles were imitation jewelry or toys. The rulings 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. Additionally, the rulings indicate that a neck cord does not, in and of itself, transmute such articles into an article of jewelry any more than the textile carrying cord or wearing straps of a camera, bubble necklace or pair of binoculars makes such items jewelry.

However, the "Teapot Surprise Necklace" can be distinguished from the water gun attached to a textile cord and the bubble necklaces because in these cases the articles hanging on the cord were themselves toys. The teapot portion of this pendant is not.

Heading 9505, HTSUS, provides, in pertinent part, for other toys. Although the term "toy" is not defined in the tariff, the ENs to chapter 95 indicate that a toy is an article designed for the amusement of children or adults. It is Customs position that the amusement requirement means toys should be designed and used principally for amusement. Customs defines principal use as that use which exceeds each other single use of the article.

HRL 956524 dated January 31, 1995, discussed the classifiication of an article identified as a "Polly Pocket Necklace." The "Polly Pocket Necklace" consisted of an oval-shaped, plastic pendant with a transparent front and a colored border and backing. The backing was a removable piece which contained a slot into which the removable "Polly Pocket" doll (which in each article, measured approximately 1 inch in height and bent at the waist) may have been inserted. The pendant was suspended from a gold colored chain, which had a clasp allowing the item to be worn about the neck. The pendant measured approximately 1-3/4 inches in height, and the looped chain measured approximately 9 inches in length.

In HRL 956524 we indicated that the American Heritage Dictionary, Second College Edition (1985), defines a pendant as "something suspended from something else, esp. an ornament or piece of jewelry attached to a necklace or bracelet." Webster's Third New International Dictionary (1968), defines a necklace as "1(a) (1): a string of beads or other small objects (as precious stones) that is worn about the neck as an ornament (2): a chain or band usu. of metal often specially decorated...and worn about the neck as an ornament."

As the "Polly Pocket Necklace" consisted of a pendant, a chain and a doll we determined that the "Polly Pocket Necklace" was described by three different headings, i.e., 7117, 9502 (for dolls) and 9503; therefore we had to determine its essential character. It was held that the essential character was provided by the pendant component because the article, as a whole, met the definitions for pendant and necklace, respectively. Additionally, the article as a whole, functioned primarily as an article of personal adornment, and retained that use irrespective of the doll's presence or absence within the pendant. Finally, the pendant portion provided the greatest share of the article's bulk, quantity, weight, and value.

We are of the opinion that like the "Polly Pocket Necklace," the plastic teapot portion containing a little plastic "tableau" of bunnies attached to the textile cord is not principally used for amusement. Rather it is principally worn around the neck and functions as a pendant or locket-like article. That is, when opened it displays not a picture but a 3 dimensional tableau.

Further, we note that neither the water gun nor the plastic bottles with bubble solution of the above cited ruling letters was worn for adornment. However the "Teapot Surprise Necklace" is decorated with pink tulips on the outside and has a coordinating colored textile cord with a matching clasp is worn around the neck. Both of these features are indicative of the necklace's adornment nature. Furthermore, the article is invoiced and advertised as a necklace and sold by a company known for retailing jewelry . For a further discussion of necklace like articles see: HRL 956001 dated June 20, 1994, in which 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 was classifiable under heading 7117, HTSUS, as imitation jewelry.

In view of the foregoing, it is our opinion that the "Teapot Surprise Necklace" meets the definition of "imitation jewelry" set out in former Notes 8 and 10 to Chapter 71, HTSUS, supra and is not described by heading 9503, HTSUS as a toy.

HOLDING:

The "Teapot Surprise Necklace" is dutiable at the 1994 rate of 11 percent ad valorem and classifiable under subheading 7117.90.50, HTSUS, which provides for "Imitation jewelry: Other: Other: Valued over 20 cents per dozen pieces or parts."

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

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