HQ 954775: Combination Programmable Pedometer/Calorie Counter and AM/FM Radio/Cassette Player; GRI 3; HQ 086765; Explanatory 3(b)(VIII); GRI 3(c); 8527.11.11

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 954775
                         October 7, 1993


CLA-2 CO:R:C:M 954775 DWS

CATEGORY: Classification

TARIFF NO.: 9029.10.00

Ms. Gail T. Cumins
Sharretts, Paley, Carter & Blauvelt, P.C.
Sixty-seven Broad Street
New York, NY 10004

RE: Combination Programmable Pedometer/Calorie Counter and
    AM/FM Radio/Cassette Player; GRI 3; HQ 086765; 
    Explanatory 3(b)(VIII); GRI 3(c); 8527.11.11

Dear Ms. Cumins:

     This is in response to your letter of July 29, 1993, on behalf
of Sanyo Fisher (U.S.A.) Corp., concerning the classification of a
combination programmable pedometer/calorie counter and AM/FM
radio/cassette player under the Harmonized Tariff Schedule of the
United States (HTSUS).  A sample was furnished for our examination.

FACTS:

     The merchandise consists of a combination programmable
pedometer calorie/counter and AM/FM radio/cassette player (model
no. SPT-1500).  The unit also contains a set of yellow headphones
and a yellow adjustable belt.  The SPT-1500 allows its user to
custom design a fitness program based upon the user's data, which
is entered into the unit prior to a workout.  The pedometer
measures three types of activity: walking, jogging, and speed-
walking.  First, the user chooses one of the aforementioned
activities and sets the pedometer accordingly.  Then, the user
enters his or her stride length, distance goal (1 - 50 miles),
pace, and weight.  After entering the input data, the user hooks
the SPT-1500 to the adjustable belt, which is worn around the
waist.  It is necessary that the unit be worn in this fashion in
order to get an accurate reading.  With the belt and unit in place,
the user pushes the unit's "start" button.

     The program begins by sending a "pace tone" through the stereo
system for 30 seconds.  These metered beeps assist the user in
establishing the target pace necessary to realize the workout goal. 
Using the personalized data which has been entered into the unit,
the pedometer's micro-computer calculates the energy output which
is measured in calories.  The calorie display tells the user how
many calories have been burned during any segment of the workout. 
This number appears on the "cal" display for 30 seconds before
returning to the "dist" (distance) display.  Once the user reaches
the target distance goal, the "beep" tone sounds for three seconds
to alert the user that the workout goal has been attained.

     The value of the SPT-1500 is $33.00 per unit.  Of this amount,
$12.00 is for the cassette player, $8.20 is for the radio
apparatus, $10.50 is for the pedometer/calorie counter, and $2.30
is for the headphones.

     The subheadings under consideration are as follows:

     8527.11.11: [r]eception apparatus for radiotelephony, 
                 radiotelegraphy or radiobroadcasting, whether or
                 not combined, in the same housing, with sound    
                 recording or reproducing apparatus or a clock: 
                 [r]adiobroadcast receivers capable of operating
                 without an external source of power, including
                 apparatus capable of receiving also
                 radiotelephony or radiotelegraphy: [c]ombined 
                 with sound recording or reproducing apparatus:
                 [c]ombinations incorporating tape players which
                 are incapable of recording.

     The general, column one rate of duty for goods classifiable
     under this provision is 3.7 percent ad valorem.

     9029.10.80: [r]evolution counters, production counters,
                 taximeters, odometers, pedometers and the like:
                 [o]ther.

     Goods classifiable under this provision receive duty-free
     treatment.

ISSUE:

     Whether the SPT-1500 is classifiable under subheading
8527.11.11, HTSUS, as a radiobroadcast receiver incorporating a
sound reproducing apparatus, or under subheading 9029.10.80, HTSUS,
as a pedometer.

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUS is in accordance
with the General Rules of Interpretation (GRI's), taken in order.
GRI 1 provides that classification is determined according to the
terms of the headings and any relative section or chapter notes.

     Because the SPT-1500 is a composite good consisting of two
different components, GRI 3 must be consulted.  It states that:

     [w]hen, by application of 2(b) or for any other reason, goods
     are, prima facie, classifiable under two or more headings,
     classification shall be effected as follows:

     (a) The heading which provides the most specific description
         shall be preferred to headings providing a more
         general description.  However, when two or more headings
         each refer to a part only of the materials or
         substances contained in mixed or composite goods or to   
         part only of the items in a set put up for retail sale,
         those headings are to be regarded as equally specific in
         relation to those goods, even if one of them gives a more
         complete or precise description of the goods.

     (b) Mixtures, composite goods consisting of different        
         materials or made up of different components, and goods
         put up in sets for retail sale, which cannot be classified
         by reference to 3(a), shall be classified as if they     
         consisted of the material or component which gives them
         their essential character, insofar as this criterion is 
         applicable.

     (c) When goods cannot be classified by reference to 3(a) or  
         3(b), they shall be classified under the heading which
         occurs last in numerical order among those which equally
         merit consideration.

     Because headings 8527 and 9029, HTSUS, each describe part only
of the components contained within the SPT-1500, according to GRI
3(a), they are to be regarded as equally specific in relation to
the classification of the SPT-1500.  See HQ 086765, dated July 18,
1990, which held that a calorie counter incorporating a pedometer
is classifiable under subheading 9029.10.80, HTSUS.  

     Consequently, we must next consult GRI 3(b).  In understanding
the language of the HTSUS, the Harmonized Commodity Description and
Coding System Explanatory Notes may be utilized.  The Explanatory
Notes, although not dispositive, are to be used to determine the
proper interpretation of the HTSUS.  54 Fed. Reg. 35127, 35128
(August 23, 1989).  Explanatory Note 3(b)(VIII) (p. 4) states that:

     [t]he 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.    

     It is our position that neither the AM/FM radio/cassette
player nor the programmable pedometer/calorie counter imparts the
essential character of the SPT-1500.  Both components interact with
each other in such a way that neither one imparts the principal
role in relation to the use of the SPT-1500.  The user may listen
to music while exercising and simultaneously keep track of his or
her workout through the use of the pedometer/calorie counter and
the signal "beeps" the user hears through the headphones.   
It appears to us that if someone wanted to only listen to music,
then that person would want to purchase a less expensive product
incorporating only the AM/FM radio/cassette player.  Similarly, if
someone wanted to only keep track of his or her workout pace, then
that person would want to purchase an inexpensive pedometer/calorie
counter.  The SPT-1500 appears to be designed for use by people who
want to both listen to music and keep track of their pace while
exercising.  Consequently, both components play an equal role in
relation to the use of the SPT-1500. 

     Inasmuch as we have determined that neither component imparts
the essential character of the SPT-1500, GRI 3(c) must be
consulted.  Because heading 9029, HTSUS, occurs last in numerical
order between it and heading 8527, HTSUS, we find that the SPT-1500
is classifiable under subheading 9029.10.80, HTSUS.

HOLDING:

     The SPT-1500 combination programmable pedometer/calorie
counter and AM/FM radio/cassette player is classifiable under
subheading 9029.10.80, HTSUS, as a pedometer.

                            Sincerely,



                           John Durant, Director
                           Commercial Rulings Division