CLA-2 CO:R:C:F 089523 STB
James C. Tuttle, Esq.
Kmart Legal Department
3100 West Big Beaver Road
Troy, MI 48084
RE: Twin Pack Bubble Pendant, Imitation Jewelry
Dear Mr. Tuttle:
This is in response to your inquiry of May 29, 1991,
requesting the tariff classification of merchandise marketed by
your client, Kmart Corporation, as "Twin Pack Bubble Pendant"
to be imported from Taiwan. A sample was provided with your
inquiry.
FACTS:
The sample submitted, Kmart's code No. 04-32-62, consists of
two bubble pendant necklaces in blister packaging. Each bubble
pendant necklace consists of an oval shaped, 2-1/2 inch by 2 inch
bottle, filled with bubble solution. A plastic wand for blowing
bubbles is attached to the inside of the bottle's cap. The
bottles are attached to a textile cord by a removable plastic "C:
clasp around the neck of the bottle.
The picture on the packaging depicts a young girl wearing
the pendant around her neck while blowing bubbles with the wand.
The items are referred to on the packaging as "Bubble Pendants."
Counsel for the importer states that the merchandise is designed,
marketed and sold by Kmart in its toy department as toys for
children ages five and older.
We understand from Kmart's counsel that the cost of the
blister-packaged bubble pendant necklaces is 77 cents, or 38-1/2
cents per bubble pendant necklace.
ISSUE:
Should the Twin Pack Bubble Pendants be classified as toys
or as imitation jewelry?
-2-
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.
-3-
The determination that the bubble pendants should be
classified as imitation jewelry is consistent with a long line of
Customs Rulings concerning similar bubble jewelry merchandise
including 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 submission of May 29, 1991, you raise several
arguments. You cite several Headquarters Ruling Letters (HRLs),
contending that the classification therein of toy jewelry items
as toys in heading 9503, HTSUSA, indicates that these bubble
pendants should be similarly classified. We note, however, that
the items at issue in all three of those rulings, none of which
were bubble jewelry items, were all put up for sale as parts of
sets that included various toy and other non-imitation jewelry
items. Our decisions in those rulings were based on the fact
that these sets were marketed and sold as toys, and thus were
classified as other toys, regardless of the fact that some of the
individual items may have been classified differently had they
been imported separately. Moreover, at the time of the drafting
of those rulings, subheading 9902.71.13, HTSUSA, had not been
amended to specifically include "Toy jewelry" in the various
Chapter 71 headings, but, instead, merely referred to certain
"jewelry" as being eligible for duty suspension.
You also contend that the principal use that one derives
from this merchandise is the amusement from the bubble solution
and that the string is really no more than a method to hang and
carry the bottle of bubble solution, similar to the carrying or
wearing straps of a camera or pair of binoculars.
We believe, however, that the marketing and design of the
merchandise refutes this claim. The item is sold under the name
"Bubble Pendants" which is printed in large letters on the
package.
The primary definition of "pendant" as provided in Webster's
New World Dictionary, Third College Edition, 1988, at p. 998 is
"a hanging ornamental object, as one suspended from an earring or
necklace." The other examples and partial definitions all stress
the hanging and/or ornamental qualities identified with the term
"pendant." In contrast, the marketing of cameras and binoculars
does not ordinarily stress the hanging and ornamental nature of
those items. The package also depicts a young girl clearly
wearing the item around her neck; the package is mostly pink in
color. The depiction of a girl together with the dominating pink
color indicates that the target consumers are little girls which
is just the group that is likely to be interested in the item for
-4-
its imitation jewelry aspect. The bubble containers have the
familiar shape and design of jewelry type pendants and are not
large enough to hold an amount of bubble solution that even
approximates the amount normally sold in individual bottles.
Thus, the wearing function of these items is more significant to
their central use and value than are the carrying or wearing
straps of cameras and binoculars.
HOLDING:
The merchandise marketed as "Twin Pack Bubble Pendant" 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% ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division