HQ 0087113 - Spotting scope, tripod, eyepiece and straps imported in carrying case. optical telescope; Chapter 90, note 2(b); GRI 5(a); GRI 5(a) Explanatory Note I(1); GRI 3(b) set; GRI 3(b) composite good. - United States International Trade Commision Rulings

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HQ 087113

July 26, 1990

CLA-2 CO:R:C:G 087113 AJS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.90; 6307.90.95; 9005.80.40; 9005.90.00

Mr. Colin R. Thorpe
Vice President
George S. Bush & Co., Inc.
1400 Exchange Building
821 Second Avenue
Seattle, Washington 98104

RE: Spotting scope, tripod, eyepiece and straps imported in carrying case. optical telescope; Chapter 90, note 2(b); GRI 5(a); GRI 5(a) Explanatory Note I(1); GRI 3(b) set; GRI 3(b) composite good.

Dear Mr. Thorpe:

Your letter of March 16, 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 consist of a spotting scope, tripod, photo adapter eyepiece, carrying case and two general utility straps.

The spotting scope is a 15X-60Xmm telescope. It will be imported in the 9000T and 90002T series. The 90002T will be imported with a tripod, extra straps, photo adapter eyepiece and carrying case. The 9000T is imported with all these items except the tripod. In addition, the 9000T may also be used as a telephoto lens.

The tripod is a table-top tripod with a universal mount which can be attached to a spotting scope or to a camera.

The carrying case contains individual compartments to store and protect the scope, tripod, and the photo adapter eyepiece. It also contains additional compartments for other accessory items such as optional lenses. These items are not imported with the case. The case's surface is composed of 100 percent nylon fabric. The interior is padded and also composed of 100 percent nylon.

The photo adapter eyepiece is included so that the scope can be used with a camera.

The general utility straps are composed of 90 percent nylon. The remaining 10 percent is not identified. They are used for attaching other pieces of equipment or devices to the carrying case.

ISSUE:

Whether the spotting scope is classifiable within subheading 9005.80.40, HTSUSA, which provides for optical telescopes.

Whether the tripod and the photo adapter eyepiece are classifiable within subheading 9005.90.00, HTSUSA, which provides for parts and accessories for the goods of heading 9005.

Whether the carrying case is classifiable within subheading 4202.92.90, HTSUSA, which provides for "[t]runks, suitcases, . . . and similar containers . . . [o]ther: with outer surface of plastic sheeting or of textile materials: other."; or with the spotting scope as a specially fitted case.

Whether the general utility straps are classifiable within subheading 6307.90.95, HTSUSA, which provides for "[o]ther made up [textile] articles . . . [o]ther."

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.

Subheading 9005.80.40, HTSUSA, provides for optical telescopes. Explanatory Note (EN) 90.05 states that this heading includes telescopes for hunting, touring, for use at sea, for firing ranges, for health resorts, etc. These scopes may be in one piece or with sliding drawers for focusing; they may also be designed to be fitted on a stand. EN 90.05. A telescope is
described as "[a]n arrangement of lenses or mirrors or both that gathers visible light, allowing direct observation . . . of distant objects." Webster's II New Riverside University Dictionary, (1984). The spotting scope at issue satisfies this description of a telescope. It is also intended for use while hunting and observing wildlife. Furthermore, it is in one piece and designed to be fitted on a stand. Therefore, the spotting scope is accurately described by the terms of subheading 9005.80.40 and classifiable therein.

Subheading 9005.90.00, HTSUSA, provides for parts and accessories for the goods of heading 9005. Parts and accessories which are solely or principally used with a particular machine, instrument or apparatus are to be classified with that machine, instrument or apparatus. Chapter 90, Note 2(b). Both the tripod and photo adapter eyepiece are principally used with the spotting scope. Therefore, they are classifiable with the spotting scope as an and accessory of the instrument. These accessories are provided for within the above subheading.

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."

Containers which are specially shaped or fitted to contain an article or set of articles are those designed specifically to accommodate the article for which they are intended. GRI 5(a) EN I(1). Some of these containers are shaped in the form of the article which they are intended to contain. Examples of these type of containers 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. The case at issue contains six interior compartments with straps to secure items in place. One compartment is designed for the spotting scope and another for the tripod. The utility straps and photo adapter eyepiece may be placed into two of the other compart- ments. All four of these items are placed in the case before importation. 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 four compartments which contain items are specially fitted to specifically accommodate these four items. However, the other two compartments do not contain any articles. Thus, we cannot ascertain if these compartments are specially fitted to accommodate any particular article. The design of this case could qualify as a specially fitted case if all of the compartments are designed to accommodate specific articles and these articles are all present at the time of importation.

GRI 5(a) additionally requires that the case be presented with the article or articles for which it is intended. The case is presented with the scope, tripod, eyepiece and straps. In some instances, the case will not be presented with the tripod. As stated previously, the case contains two compartments which are not presented with an article. A case which is presented with empty compartments is not presented with the articles for which it is intended. Therefore, the case is excluded from classification as a GRI 5(a) container because it is not presented with the articles for which it is intended.

Heading 4202, HTSUSA, provides for trunks, suitcases and a wide variety of similar containers with an outer surface of textile material. The case at issue is described by the terms of this heading. More specifically, subheading 4202.92.90 provides for other containers with an outer textile surface. The case at issue is accurately described by the terms of this subheading.

Subheading 6307.90.95, HTSUSA, provides for other made up textile articles. This heading covers made up articles of any textile material which are not included more specifically in other headings of the HTSUSA. EN 63.07. The utility straps at issue are a made up article of textile material, and they also are not included more specifically elsewhere in the HTSUSA. Thus, they are accurately described by the terms of this subheading.

You claim that all the articles in question are classifiable as a unit based on the fact that they are packed together and intended to be used with the spotting scope. This argument relies on the GRI 3 concept of "goods put up in sets for retail sale." GRI 3(b) EN(X) states that "goods put up in sets for retail sale" must:

(a) consist of at least two different articles which are prima facie, classifiable in different headings.

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

In ruling letter HQ 082213 (February 13, 1990), Customs stated that a tool box which contained a drain cleaning system did not satisfy the requirements of GRI 3(b). In part, this ruling was based on the fact that the tool box was capable of containing additional items. This is the situation in the
present case. The carrying case at issue is capable of carrying additional items, so it is not clear whether the case contributes to the specific activity of the merchandise. Therefore, the goods at issue do not constitute a set put up for retail sale and thus must be classified separately.

GRI 3(b) additionally 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 articles at issue do not satisfy this description. They do not together form a whole which would not normally be offered for sale in separate parts. The straps and case could be separated and sold together. In addition, the scope and tripod could be separated and sold together or separately. The photo adapter eyepiece also could be sold separately.

HOLDING:

The spotting scope in question is classifiable within subheading 9005.80.40.40, HTSUSA, which provides for optical telescopes dutiable at 8 percent ad valorem.

The tripod and photo adapter eyepiece are classifiable within subheading 9005.90.00.00, HTSUSA, which provides for parts and accessories of the goods of heading 9005 dutiable at 8 percent ad valorem.

The carrying case is classifiable within subheading 4202.92.90.20, HTSUSA, which provides for trunks, suitcases and similar containers with an outer surface of textile material dutiable at 20 percent ad valorem, textile category 670.

The utility straps at issue are classifiable within subheading 6307.90.95.90, HTSUSA, which provides for made-up textile articles dutiable at 7 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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