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HQ 963785




June 5, 2001

CLA-2 RR:TC:TE 963785 mbg

CATEGORY: CLASSIFICATION

TARIFF NO.: 9004.10.0000; 9003.11.0000; 9003.19.0000; 4202.32.1000; 4202.32.9550

Amy J. Johannesen, Esq.
Coudert Brothers
1114 Avenue of the Americas
New York, NY 10036-7703

RE: Classification of eyeglass cases; application of GRI 5(a)

Dear Ms. Johannesen:

This is in response to your letter, dated November 18, 1999, on behalf of your client, Marchon Eyewear, regarding the classification of eyeglass cases imported from Japan, Italy or other countries under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). Samples were submitted to this office for review and will be returned under separate cover.

FACTS:

The subject merchandise consists of eyeglass cases having an outer surface of reinforced/laminated plastics, foam backed PVC, or other materials, and drawstring eyeglass pouches of microfiber textile fabric. These cases and/or pouches bear the trademarked logo of the brand of frame or sunglasses they are designed to carry and will be imported together in the same shipment with an equal number of corresponding frames for eyeglasses and/or sunglasses.

The spectacle cases may be imported with spectacle frames made of gold tone metal and as presented these frames have “demonstration” lens inserts. The sample submitted is frame style number F86 as shown on the submitted Fendi catalogue. Unlike most of the other frames shown in the catalogue, style F86 is available in only one configuration of lens, bridge and temple. Most styles have at least two varieties which result in varied sizes and configurations.

You state that these cases and pouches are suitable for reuse and are intended to be used to protect the imported eyewear during storage and to transport the eyewear by the purchaser. They are not sold separately, but are provided to the consumer free of charge with the purchase of an eyeglass frame or pair of sunglasses. The value of the cases ranges between approximately 5 to 15 percent of the corresponding eyewear they are intended to contain.

For tariff classification purposes, the difference in duty between classification of the frames or the spectacle cases is less than 8 percent ad valorem, however, spectacle cases from the European Union are subject to a 100 percent ad valorem rate of duty pursuant to trade sanctions imposed by the United States Trade Representative (“USTR”).

Please be advised that USTR issued a press release on April 11, 2001, which indicated the withdrawal of the 100 percent duties as of July 1, 2001. For further information regarding duty rates for goods imported from the European Union, please see the USTR website at .

It is your position that the subject eyeglass cases/pouches are properly classified under the provision for the eyewear frames with which they are imported, in accordance with General Rule of Interpretation (GRI) 5(a).

ISSUE:

What is the proper classification for the subject merchandise?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) is in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The HTSUSA headings and subheadings under consideration are as follows:

Heading 4202, HTSUSA, covers:

Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber, or of paperboard, or wholly or mainly covered with such materials or with paper.

Heading 9003, HTSUSA, covers:

Frames and mountings for spectacles, goggles or the like, and parts thereof.

Heading 9004, HTSUSA, covers:

Spectacles, goggles and the like, corrective, protective or other.

The ENs for heading 9004, HTSUSA, state:

This heading covers articles (usually comprising a frame or support with lenses or shields of glass or other material), for use in front of the eyes, generally intended either to correct certain defects of vision or to protect the eyes against dust, smoke, gas, etc., or dazzle; it also covers spectacles for viewing stereoscopic (three-dimensional) pictures.

Spectacles, pince-nez, lorgnettes, monocles, etc., used for correcting vision, generally have optically worked lenses.

The heading also includes goggles for underwater use; removable spectacles (e.g., sunglasses) for fitting to other spectacles (generally corrective spectacles) and used either as protective filters or, in some cases, as additional corrective lenses; polarizing spectacles fitted with lenses of plastics for viewing three-dimensional films (whether or not with a paperboard frame).

Due to the eo nomine classification of the merchandise in the HTSUSA, there is no dispute concerning the fact that the subject metal frame, referenced style number F86, is classified in subheading 9003.19.0000, HTSUSA, which provides for, among other things, frames and mountings for spectacles, of other materials. Concurrence is also found in the classification of the subject frames in subheading 9003.11.0000, HTSUSA, when the frames are made of plastic as well as for the classification of the sunglasses in subheading 9004.10.0000, HTSUSA. However, a dispute arises with respect to whether the spectacle cases, which are imported with the frames for eyeglasses and sunglasses, should be classified with the frames pursuant to GRI 5(a) or whether the spectacle cases should be separately classified under heading 4202, HTSUSA.

Application of GRI 5(a)

GRI 5 states:
a. Camera cases, musical instruments, gun cases, drawing instrument cases, necklace cases and similar containers, specifically shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character;
b. Subject to the provisions of rule 5(a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use.

The EN, to GRI 5(a) state:

This rule shall be taken to cover only those containers which:
are specially shaped or fitted to contain a specific article or set of articles, i.e., they are designed specifically to accommodate the article for which they are intended. Some containers are shaped in the form of the article which they contain;
are suitable for long–term use, i.e., they are designed to have a durability comparable to that of the articles for which they are intended. These containers also serve to protect the article when not in use (during transport or storage, for example). These criteria enable them to be distinguished from simple packings;
are presented with the articles for which they are intended, whether or not the articles are packed separately for convenience of transport. Presented separately the containers are classified in their appropriate headings;
are of a kind normally sold with such articles; and
do not give the whole its essential character.

Each of these EN criteria will be addressed with respect to the goods at issue.

1. Specially Shaped or Fitted to Contain a Specific Article

To arrive at a proper tariff classification determination for the subject containers we must look both to the merchandise itself and to the specific language set forth in GRI 5(a). The first criteria explicitly stated in GRI 5(a) is that the containers be specially shaped or fitted to contain a specific article. This is further emphasized in EN I(1), which requires that the containers be designed specifically to accommodate the article for which they are intended.

Customs has previously classified eyeglass cases in HQ 960218, dated October 22, 1997, and stated therein:

The [eyeglass case] is designed to suit the needs of the glasses it will carry. The dimensions of the bag are more than adequate to snugly accommodate eyeglasses regardless of the absence of internal fittings or compartments. The PVC construction of the case provides a sturdy and protective case to transport the glasses, thus ensuring not only the repetitive use of the subject article, but that it will also be used as a decorative and “protective packing” for the glasses it will transport. The fact that the [eyeglass case] might also be used to carry and protect other small items does not detract from the obvious purpose of the subject eyewear case, that is, to carry and protect, for a prolonged or extended period of time, the initial eyeglass purchase.

The eyeglass cases here in issue are shaped to hold eyewear and are in the shape commonly associated with containers for eyewear. The cases are of an oblong shape that is similar to the dimensions of eyewear, and of a size that is large enough to accommodate glasses, but not so large that the articles can move around excessively within the case and become damaged. Customs finds that the subject eyeglass cases which have a sturdy construction and are designed to specifically contain the corresponding name brand frames or sunglasses are “specially shaped or fitted” for GRI 5(a) consideration.

However, Customs finds that the subject eyeglass pouches are lacking in any features which would substantiate a claim of “specially shaped or fitted” for GRI 5(a) consideration. The pouches are constructed of textile fabric with side seams sewn together and a draw string closure. There is no fitted nose piece nor specific shaping to the pouches to hold the eyeglasses securely in place within the pouch. The pouches are also lacking any hard plastic shell which would protect the eyeglasses during transport or storage. Customs finds the subject pouches are not specially shaped or fitted as required by GRI 5(a). Therefore the subject pouches will be classified separately from the eyeglasses and sunglasses pursuant to GRI 1. See HQ 962551, dated June 16, 1999, which held that a substantially similar micro-fiber drawstring pouch for sunglasses was classified in heading 4202, HTSUSA. Despite the disqualification of the pouches from the coverage of GRI 5 by not satisfying GRI 5(a)(1), we will address the cases and pouches satisfaction of the remaining four criteria.

2. Suitable for Long-Term Use

We also do not dispute that the subject containers are suitable for long term use, therefore satisfying another of the criteria set forth in GRI5(a). The eyeglass cases are made of a strong construction of durable reinforced laminated plastic covering with hinges or snaps that can withstand repeated use. Customs has previously held that similar cases and pouches are suitable for repeated use and designed to accommodate the spectacles. See, e.g., HQ 961549, dated July 27, 1998, New York Ruling Letter (“NY”) C83714, dated January 29, 1998, Port Decision Letter (“PD”) B87778, dated August 13, 1997, and NY 817426, dated December 19, 1995. These rulings, issued to your client, addressed virtually identical containers, classified the eyeglasses cases and pouches, in subheading 4202. 32.1000, HTSUSA.

3. Normally Sold With the Article

Additionally, Customs notes that you state the normal sales practice of Marchon Eyewear, Inc., is to give away the subject cases/pouches with the purchase of the brand name eyewear. Customs notes that it is the practice of some higher end vendors of spectacles and sunglasses to either sell the case on its own or to offer a case to the retail customer upon purchase and payment for the sunglasses or the eyewear. For instance, when a consumer purchases a pair of Fendi® frames or sunglasses, then the customer will receive an eyeglass case with the Fendi® logo rather than an eyeglass case with the Gorgio Armani® logo. Furthermore, when a consumer wishes to purchase a replacement eyeglass case and makes such a purchase at the local drug store or all purpose store such as Target or Wal-Mart, eyeglass cases bearing a name brand logo are not separately available for purchase. The consumer may only get a “name brand” eyeglass case to match the corresponding “name brand” frames at the optician.

GRI 5(a) requires that the containers be of a kind normally sold with the article. Customs believes that the normal sales practice for the eyewear industry as a whole is to provide the customer with a case upon purchase of a pair of prescription glasses or prescription sunglasses and therefore this aspect of GRI 5(a) is satisfied.

4. Essential Character

GRI 5(a) also requires that the container not give the whole its essential character. In determining the essential character, Customs has considered the nature of each component, its weight or value, or its role in relation to the use of the good. EN VIII to GRI 3(b), p. 4, gives guidance, stating that “The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” With the subject merchandise, the eyeglass cases or pouches do not provide the essential character as the value of the spectacles is significantly greater. You have stated that the value of the cases ranges between approximately 5 to 15 percent of the corresponding eyewear they are intended to contain. Furthermore, the nature and role of the case is to protect the spectacles and sunglasses to prevent bending and scratching.

5. Presented with Article For Which Intended

The final criterion to discuss for GRI 5(a) application concerns the presentation of the subject cases with the eyeglasses. As pointed out in your submission, the subject merchandise consists of cases or pouches which are imported with frames which will be used for either eyeglasses or sunglasses. The ENs provide that the containers must be presented with the articles for which they are intended but does allow for the container to be packed separately from the article for convenience of transport. Customs will not require that the actual eyeglasses or sunglasses must be packaged in the eyeglass case or pouch upon entry, however, Customs does mandate that the eyeglasses or sunglasses must enter in the same container as the eyeglass cases with which you claim they will be sold. Also, each shipment of the subject merchandise must contain an equal number of glasses and cases.

Given all of the factors stated above, the subject eyeglass cases are classified with the submitted frames, spectacles or sunglasses in Chapter 90 pursuant to GRI 5(a). Based upon their condition at the time of importation, shipments of equal numbers of eyeglass cases and spectacles, frames or sunglasses will be classified by Customs pursuant to GRI 5(a) and will therefore not be subject to the sanctions imposed on importation for certain EU countries of this merchandise by the United States Trade Representative. The subject eyeglass pouches will be classified separately from the frames, spectacles and sunglasses pursuant to GRI 1.

Inventories under GRI 5(a)

You have raised issues of post importation commingling of cases. Specifically you have stated that after importation the frames and cases might be mixed with other frames that are stated to be "interchangeable" with the imported frames and cases, respectively. However, you did not provide the factual or legal basis for the conclusion of interchangeability. Counsel did not provide any description of the so-called commingling or any sample of any inventory record that records the asserted fact of commingling. While Customs, by Regulation, provides for the identification of specific items of fungible merchandise that are commingled (see General Note 19 which explains commingling), the information needed to rule on that identification principle here is missing. Generally, the application of identification of fungible merchandise within a commingled inventory is set forth in 19 CFR 191.14, Schedule X to Part 181 Appendix and in T.D 95-61. If you wish to pursue this issue, you should file a ruling request containing the above information to the Duty Refunds and Determination Branch, Office of Regulations and Rulings.

HOLDING:

When imported together in the same shipment containing equal numbers of eyeglasses and cases, the subject eyeglasses of plastic and their cases are classifiable in subheading 9003.11.0000, HTSUSA, which provides for “Frames and mountings for spectacles, goggles or the like, and parts thereof: Frames and mountings: Of plastics.” The applicable rate of duty is 2.5 percent ad valorem.

When imported together in the same shipment containing equal numbers of eyeglasses and cases, the subject eyeglasses of materials other than plastics and their cases are classifiable in subheading 9003.19.0000, HTSUSA, which provides for “Frames and mountings for spectacles, goggles or the like, and parts thereof: Frames and mountings: Of other materials.” The applicable rate of duty is free.

When imported together in the same shipment containing equal numbers of sunglasses and cases, the sunglasses and their cases are classifiable in subheading 9004.10.0000, HTSUSA, which provides for “Spectacles, goggles and the like, corrective, protective or other: Sunglasses.” The applicable rate of duty is 2 percent ad valorem.

When imported separately or when imported in quantities that exceed the number of corresponding eyewear, the subject eyeglass cases are classified in subheading 4202.32.1000, HTSUSA, which provides for “Trunks . . . . : Articles of a kind normally carried in the pocket or in the handbag: With outer surface of sheeting of plastic or of textile materials: With outer surface of sheeting of plastic: of reinforced or laminated plastics.” The applicable rate of duty is 12.1 cents per kilogram plus 4.6 percent ad valorem.

Since any eyeglass cases imported separately, or in quantities which exceed the number of corresponding eyewear are classified in subheading 4202.32.1000, HTSUSA, and if products of Italy, they are subject to the provision of subheading 9903.08.08, HTSUSA, which makes this merchandise dutiable at the rate of 100 percent ad valorem pursuant to trade sanctions imposed by the United States Trade Representative.

The subject eyeglass pouches, regardless of whether imported in quantities equal to the sunglasses, are classified in subheading 4202.32.9550, HTSUSA, which provides for “Trunks . . . . : Articles of a kind normally carried in the pocket or in the handbag: With outer surface of sheeting of plastic or of textile materials: With outer surface of textile materials: Other: Other, Of man-made fibers. The applicable rate of duty is 18.3 percent ad valorem and the quota category is 670.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, we suggest that your client check, close to the time of the shipment, the Status Report On Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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