CLA-2 CO:R:C:F 950941 STB
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.
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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...."
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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
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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
Commercial Rulings Division
Enclosure