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HQ 950358


June 30, 1992

CLA-2 CO:R:C:T 950358 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.4500

Mr. Donald W. Myhra
District Director
U.S. Customs Service
300 Second Avenue
Great Falls, MT 59401

RE: Application for Further Review of Protest No. 3307-91- 100043; Aqua Tunes

Dear Mr. Myhra:

This is in reply to your Memorandum CD 3550-39 D of September 10, 1991, forwarding documentation concerned with an Application for Further Review of Protest No. 3307-91-100043. You recommended that the Protest be denied. Our decision follows.

FACTS:

The merchandise at issue is described in U.S. Patent Number 4,584,718 of April 22, 1986, as:

ABSTRACT

A waterproof enclosure for a portable radio, tape recorder/player or the like includes a flexible membrane with a finger control pocket adjacent the control knobs of the radio, an opening for inserting and removing the radio from the enclosure with a waterproof sealed cover to close the opening, and a waterproof seal around the earphone plug connector that extends through the flexible membrane. A waterproof earphone speaker is also provided, which has a conical waterproof boot fitted snugly over the speaker. Annular collars on the conical boot anchor the speaker in a person's ear and seal water out of the ear and conical boot.

BACKGROUND OF THE INVENTION

This invention is related to portable radios and tape players, and more specifically, to a waterproof enclosure for portable radios and tape players.

In recent years very small portable radios and tape players have been developed which are lightweight, not bulky, and very easy to carry. These small portable radios and tape players have become quite popular with sports enthusiasts who enjoy listening to music for entertainment while engaging in physical activity and sporting events. Such radios and tape players, however, as currently manufactured are not waterproof, so they cannot be used in water sports activities, such as swimming, surfing, wind surfing, water skiing, and the like.
Therefore, prior to the development of this invention, people have not been able to use their portable radios and tape players while engaging in water sports activities.

SUMMARY OF THE INVENTION

Accordingly, it is an object of the present invention to provide a waterproof enclosure for ... conventional portable radios which allows the manipulation of the radio controls from the exterior of the waterproof enclosure without breaking the waterproof seal of the enclosure[, and] ... to provide waterproof earphones for portable radios....

Attorneys Stein Shostak Shostak & O'Hara, on behalf of their client xxxxxxxxxxx xxxxxxx xxxxx of xxxxxxx, xxxxxxxx, argue that the instant merchandise, hereinafter Aqua Tunes~, should be classified "under the eo nomine provision for ~other accessories for water-sports equipment~ in Subheading 9506.29.0040, [Harmonized Tariff Schedule of the United States Annotated (HTSUSA)], at 4.64% ad valorem or alternatively, under the provision for earphones, other, in Subheading 8518.30.2000, at 4.9% ad valorem." You disagree, maintaining that classification as a sports bag under subheading 4202.92.4500, is more appropriate.

ISSUE:

Whether the Aqua Tunes~ is a sports bag, a sports accessory, or are earphones under the HTSUSA?

LAW AND ANALYSIS:

Heading 9506, HTSUSA, provides for, inter alia, parts and accessories for water-sports equipment. The Explanatory Notes (EN) to the HTSUSA constitute the official interpretation of the tariff at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA. The EN to this heading states: This heading covers:

(B) Requisites for other sports and outdoor games ..., e.g.:

(2) Water-skis, surf-boards, sailboards and other water-sports equipment, such as diving stages (platforms), chutes, divers' flippers and respiratory masks of a kind used without oxygen or compressed air bottles, and simple underwater breathing tubes (generally known as
"snorkels") for swimmers or divers.

The heading excludes:

(b) Sports bags and other containers of heading 42.02, 43.03 or 43.04.

It is clear that the Aqua Tunes~ is not equipment considered "requisite" for water-sports. Counsel claims that it should be classified "under the eo nomine provision for ~other accessories for water-sports equipment.~" This argument, however, results from a misreading of the tariff language and its accompanying legal notes. Heading 9506, HTSUSA, specifically provides for, inter alia, "Articles and equipment for gymnastics, athletics and other sports ... or outdoor games...; parts and accessories thereof." (Emphasis added). For merchandise to classified herein as an accessory, it must be an accessory of articles and equipment for sports, not an accessory of sports. See Note 3 to Chapter 95, HTSUSA (stating that parts and accessories suitable for use solely or principally with articles of Chapter 95 are to be classified with those articles). Since radio and cassette players are not, in and of themselves, articles or equipment for sports, classification of the Aqua Tunes~ in Chapter 95, HTSUSA, would be incorrect.

The Aqua Tunes~ is composed of the earphone speakers, a polyvinyl chloride pouch, a nylon belt and plastic buckle. The General Rules of Interpretation (GRIs) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part, that such "classification shall be determined according to the terms of the headings and any relative section or chapter notes...." Goods which cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRIs, taken in order. GRI 3 states, in pertinent part:

When by application of Rule 2(b) [goods of more than one material or substance] or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(b)[C]omposite goods ... made up of different components, ... which cannot be classified by reference to 3(a)
[which requires that goods be classified, if possible, under the more specific of the competing provisions], shall be classified as if they consisted of the ... component which gives them their essential character, insofar as this criterion is applicable.

Explanatory Note (IX) to GRI 3 provides:

For the purposes of [GRI 3(b)], composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted to one another and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

[C]lassification [of composite goods] is made according to the component, or components taken together, which can be regarded as conferring on the set as a whole its essential character.

The factors which determine essential character of an article will vary from case to case. It may be the nature of the materials or the components, its bulk, quantity, weight, value, or the role a material plays in relation to the use of the goods; however, an essential character analysis is not intended to be a mere "numbers game". In general, essential character has been construed to mean the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure or condition of an article.

Counsel has argued that none of the above-listed components impart the essential character of the Aqua Tunes~. We do not agree. While the nylon belt plus the plastic buckle hold the PVC pouch to the body, and the earphones allow the user to hear the music from the radio or tape player, it is the plastic pouch which provides that attribute for which the Aqua Tunes~ is purchased for: protection from the saturated environment of water sports. Indeed, promotional material on the product's packaging notes that "[i]t will provide protection against water, dust or sand and is completely submersible." Therefore, your classification as a sports bag under subheading 4202.92.4500, HTSUSA, was correct.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 4202.92.4500, HTSUSA, as trunks, suitcases, vanity cases, attache 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 plastic sheeting, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials, other, with outer surface of plastic sheeting or of textile materials, travel, sports and similar bags, other. The applicable rate of duty is 20 percent ad valorem.

Since classification of the merchandise as indicated above would result in the same rate of duty as the liquidated rate, you are instructed to deny the protest in full. A copy of this decision should be forwarded to the protestant, or protestant's counsel, as part of the Form 19 Notice of Action.

Sincerely,

John Durant, Director
Commercial Rulings Division

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