HQ 964443

May 14, 2001

CLA-2 RR:TC:TE 964443 mbg

CATEGORY: Classification

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

4202.32.9550

Peter W. Klestadt & Laurence M. Friedman, Esqs.

Grunfeld, Desiderio, Lebowitz & Silverman, LLP

245 Park Avenue

33^rd^ Floor

New York, NY 10167-3397

RE: Classification of Eyeglass cases imported from Italy with frames or

sunglasses; Application of GRI 5(a)

Dear Mr. Klestadt & Mr. Friedman:

This is in response to your letter requesting a binding ruling, dated
August 16, 2000, on behalf of your client, Avant Garde, regarding the
classification of eyeglass cases imported from Italy 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:

Avant Garde is an importer of a range of eyewear of various brand names
such as Giorgio Armani®, Brooks Brothers®, Persol®, Moschino®, Vogue®,
Sergio Tacchini®, Ferragamo®, Bulgari®, Chanel®, Revo® and Ray Ban®. The
"hard" eyewear cases have a metal frame with an outer surface of
reinforced or laminated plastics to which an inner textile lining has
been glued. The "soft" eyewear cases have double-sided layers of a
plastic-coated textile fabric. The cases come in various shapes and
sizes depending upon the size and shape of eyeglass each contains. The
spectacle cases may be imported with spectacle frames of either plastic
or metal and as presented these frames have "demonstration" lens
inserts.

Although no samples were submitted of eyeglass pouches, textile pouches
have been discussed in subsequent telephone conversations with attorneys
from the Office of Regulations & Rulings and therefore, classification
of textile drawstring eyeglass pouches will also be provided. The
subject cases and/or pouches bear the trademarked logo of the brand of
frame or sunglasses they are designed to carry and you state they will
be imported together in the same shipment with an equal number of
corresponding frames for eyeglasses and/or sunglasses. 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. You claim 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").
[^1]

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 rules 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]{.underline} 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 subject metal frames are
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)]{.underline}**

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:

(I) This rule shall be taken to cover only those containers which:

```{=html}
<!-- -->
```
(1) are specially shaped or fitted to contain a specific article of 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;

(2) 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;

(3) 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;

(4) are of a kind normally sold with such articles; and

(5) 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]{.underline}**

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 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 drawstring 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]{.underline} HQ 962551, dated June
16, 1999, which held that a substantially similar micro-fiber drawstring
pouch for sunglasses was classified in heading 4202, HTSUSA.

**[2. Suitable for Long-Term Use]{.underline}**

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.]{.underline}, 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 addressed virtually identical
containers and classified the eyeglasses cases and pouches in subheading
4202. 32.1000, HTSUSA.

**[3. Normally Sold With the Article]{.underline}**

Additionally, Customs notes that you state the normal sales practices of
Avant Garde 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 Brooks Brothers frames or sunglasses, then the
customer will receive an eyeglass case with the Brooks Brothers® 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]{.underline}**

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]{.underline}**

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
by the United States Trade Representative. The subject eyeglass pouches
will be classified separately from the frames, spectacles and sunglasses
pursuant to GRI 1.

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 may be the 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)]{.underline}, 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

Commercial Rulings Division

[^1]: 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
    \<www.ustr.gov\>.