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HQ 086839


July 6, 1990

CLA-2 CO:R:C:G 086839 AJS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9005.10.00

Mr. Frank A. Wiener II
Vice President
Wiener Industries
Suite 615, Investment Building
Pittsburgh, PA 15222

RE: Power speculars with carrying case and textile cord. binoculars; GRI 3; composite good; GRI 5(a); specially shaped or fitted case.

Dear Mr. Wiener:

Your letter of March 9, 1990, requesting a tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), has been referred to this office for reply.

FACTS:

The articles in question are a pair of power speculars, a textile cord and a carrying case. The speculars are worn like a pair of eyeglasses. They are similar to binoculars in that they may be focused by adjusting a knob located on each temple. They are intended for use as binoculars in order to aid vision at sporting events, the opera, ballet, or concerts. The speculars are to be imported with a textile cord composed of nylon and a plastic carrying case.

The carrying case is manufactured of a cellular plastic sheeting material. The case has a nylon top zipper closure, a front storage pocket, a self material swagger handle and belt loops so that it may be worn on a belt and used for transporting the articles outdoors.

ISSUE:

Whether the merchandise at issue is classifiable as a composite good for tariff purposes.

If considered a composite good, which item provides the essential character for classification purposes; and if not considered a composite good, how are the items properly classified.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order.

Heading 9005, HTSUSA, provides for binoculars. Explanatory Note (EN) 90.05 states that this heading includes "[b]inoculars, such as opera glasses, binoculars for touring or hunting, military binoculars . . . and binoculars made in the form of spectacles." Binoculars are described as an optical device designed for use by both eyes simultaneously. Webster's II New Riverside University Dictionary, (1984). The power speculars themselves satisfy these descriptions and are classifiable as binoculars. More specifically, they are provided for within subheading 9005.10.00 as other binoculars. However, the merchandise as a whole does not satisfy this description.

GRI 3 governs the classification of goods which are prima facie classifiable within two or more headings. The power speculars are classifiable within subheading 9005.10.00, HTSUSA, which provides for other binoculars. The carrying case is classifiable within subheading 4202.92.90, HTSUSA, which provides for cases composed of an outer surface of plastic sheeting. The textile cord is classifiable within subheading 6307.90.90, HTSUSA, which provides for made-up textile articles. However, not one of these headings by itself covers the subject merchandise. Therefore, the merchandise as a whole is prima facie classifiable within two or more headings.

GRI 3(a) requires the heading which provides the most specific description of the article to govern over one which provides a more general description. However, when two or more headings each refer to part only of the components contained in composite goods those headings are to be regarded as equally specific in relation to those goods. This is the situation which
exists in the present case. Goods which cannot be classified according to this rule are then to be classified according to GRI

GRI 3(b) provides for composite goods made up of different components. Composite goods can consist of separable components, provided these components are adapted one to the other and are mutually complementary and together form a whole which would not normally be offered for sale in separate parts. GRI 3(b) EN (IX). The components at issue satisfy this description. They are separable into the speculars, case and cord. They also are adapted for use together. For instance, the case operates as both a storage place and carrying case for the speculars and cord. The cord is attached to the speculars to enable the user to wear them loosely around the neck and to prevent them from falling to the ground. In addition, these components are mutually complementary to each other based on the fact that they are intended to be used together as a whole. Lastly, they are also not normally offered for sale separately. The speculars would not normally be offered without some kind of case, the case is manufactured for the speculars and would not normally be sold without them, and the cord would normally be sold with the speculars or similar items.

Composite goods are classifiable as if they consisted of the component which gives them their essential character. GRI 3(b) EN (VII). The factor which determines essential character will vary as between different kinds of goods. GRI 3(b) EN (VIII). The component which establishes essential character in this case is the speculars based on the fact that they are the constituent component of the merchandise. As discussed previously, the speculars are classifiable within subheading 9005.10.00, HTSUSA. Accordingly, the composite good would be classifiable as if it consisted solely of the power speculars.

GRI 5(a) states that certain cases and similar containers which are "specially shaped or fitted to contain a specific article . . . , suitable for long-term use and presented with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith." The issue has been raised regarding the applicability of this provision to the carrying case in question.

Cases which are specially shaped or fitted to contain an article are those designed specifically to accommodate the article for which they are intended. GRI 5(a) EN(I)(1). Some of these cases are shaped in the form of the article which they are intended to contain. Examples of these types of cases are jewelry boxes and cases, electric shaver cases, binocular cases,
telescope cases, gun cases, and musical instrument cases, boxes and bags. GRI 5(a) EN(II). You claim that the case at issue is manufactured for use with the power speculars. However, this factor alone does not establish that the case at issue is designed specifically to accommodate the speculars. The body of the specular case is soft and flexible. This design does not appear to be specially shaped or fitted to accommodate any intended article. In fact, this design is not specific enough to prevent the case from being used to accommodate other items which are comparable in size and shape to the speculars. Almost all of the examples of the cases listed above are designed in a manner which would prevent them from accommodating any item other than the one intended to be used with the case. Thus, the case at issue fails to satisfy the first requirement of GRI 5(a).

The description of the terms "shaped" and "fitted" also support this conclusion. The term "shaped" is described as "[d]esigned to conform to the contours of something." The Random House Dictionary of the English Language (1983). The case at issue is not designed to conform to the contours of the speculars. In addition, the term "fitted" is described as "[m]ade so as to follow closely the contours of a form or shape." The Random House Dictionary of the English Language (1983). The case also is not made to follow closely the contour of the speculars. Once again, the examples of the cases mentioned previously satisfy each of these descriptions. Therefore, the case in question is not a specially "shaped" or "fitted" container within the meaning of GRI 5(a).

HOLDING:

The power speculars, carrying case and textile cord are a composite good classifiable according to their essential character within subheading 9005.10.00, HTSUSA, which provides for other binoculars, free of duty.

Sincerely,

John Durant, Director
Commercial Rulings Division

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