CLA-2 OT:RR:CTF:TCM HQ H105016 TNA
Port Director, Port of Cleveland
U.S. Customs and Border Protection
6747 Engle Road Middleburg Heights, OH 44130
Attn: Lydia Goldsmith, Supervisory Import Specialist
RE: Internal Advice Request 10/028; classification of a universal media disk cover.
Dear Port Director:
This is in response to your Request for Internal Advice, dated May 4, 2010, initiated by the Area Port of Cleveland, concerning the proper classification of a universal media disk cover under the Harmonized Tariff Schedule of the United States (HTSUS).
This letter is to inform you that HQ H105016, dated October 28, 2010, no longer represents the view of Customs and Border Protection (CBP) and is revoked in accordance with section 177.12(d) of title 19 of the Code of Federal Regulations (19 C.F.R. §177.12 (d)). Pursuant to section 625, Tariff Act of 1930, (19 U.S.C. §1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub.L. 103-182, 107 Stat. 2057, 2186 (1993), publication is not required when the revocation is issued within 60 days of the issuance of the ruling. The following represents our position.
FACTS:
The subject merchandise consists of a plastic case for an optical universal media disk. It is used for a Play Station Portable (PSP) system as a replacement part. The case consists of front and back panels that have pins and clasps to snap the two halves together. The back of the cover has pins with beveled edges and clasps with teeth to connect it to the top half. Furthermore, there is an opening cut out on the underside of one of the halves, which allows the games on the optical disk to be read by the PSP machine. The case is designed to hold the game disk for the PSP and is essential in order to play the disk. Without the case, the disks are rendered useless.
The subject merchandise was designed as an after-market solution to recover high-priced multimedia files which had been lost because of broken disk cases. It is reusable and resealable.
ISSUE:
Whether plastic disk covers designed to hold video game disks are classified in heading 3926, HTSUS, as other articles of plastics, or under heading 9504, HTSUS, as parts and accessories of game machines?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.90 Other:
3926.90.99 Other
9504 Articles for arcade, table or parlor games, including pinball machines, bagatelle, billiards and special tables for casino games; automatic bowling alley equipment; parts and accessories thereof:
9504.90 Other:
9504.90.40 Game machines, other than those operated by coins, banknotes (paper currency), discs or similar articles; parts and accessories thereof
Legal Note 3 to Chapter 95, HTSUS, provides, in pertinent part, that:
Subject to note 1 above, parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
The EN to heading 3926, HTSUS, provides, in pertinent part:
This heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14.
The EN to heading 9504, HTSUS, provides, in pertinent part:
The heading also includes parts and accessories of video game consoles and machines (for example cases, game cartridges, game controllers, steering wheels), provided they fulfil the conditions of Note 3 to this Chapter.
Your request for Internal Advice questions whether the subject merchandise should be classified in accordance with NY N045112, dated December 18, 2008. In that ruling, U.S. Customs and Border Protection (CBP) classified a universal media disk cover that was described as a protective silicone shell designed to protect games and movies from dust, dirt and fingerprints in subheading 3926.90.99, HTSUS, which provides for “Other articles of plastics, other.” The ruling stated that that this disk cover “did not relate directly to the use of the PSP and did not contribute to the effectiveness of the principle article- i.e., it did not facilitate the use or handling of the principle article, widen the range of its uses, or improve its operation.” Thus, the case was not necessary for the game to function in the PSP. As a result, this type of UMD is more akin to the types of plastic jewel cases in which audio CDs are packaged.
By contrast, while the subject merchandise is also meant to protect and store the optical game disk, it is nevertheless necessary in order to insert the game into the PSP machine. The cover is an essential component of the game, which cannot be played without the case. As a result, the subject merchandise is distinguishable from the UMD cover at issue in NY N045112.
Legal Note 3 to Chapter 95, HTSUS, requires that parts and accessories that are used solely or principally with the merchandise of this chapter are to be classified with that merchandise. In the present case, the subject UMD cover is designed for use with optical game disks for the PSP; while the PSP is a game machine that is classified in heading 9504, HTSUS, the optical game discs are classified in heading 8523, HTSUS. See, e.g., NY R04890, dated September 19, 2006; HQ H083275, dated June 17, 2010.
Technicolor Videocassette, Inc. v. United States (Technicolor) examined whether empty video cassette housings made of plastic could be considered a part or accessory of a VCR. Technicolor Videocassette, Inc. v. United States, 19 C.I.T. 942; 896 F. Supp. 1220; 17 Int’l Trade Rep. (BNA) 2128; 1995 Ct. Intl. Trade LEXIS 171; Slip Op. 95-127. Upon entry, CBP had classified the merchandise in heading 3926, HTSUS, as articles of plastic, while Technicolor argued for classification as a part of the VHS machine. Id. at 943. The Court found that the empty video cassette could not be considered media because the cassette’s magnetic tape was media, and the empty cassettes were imported separately from the magnetic tape. However, the Court decided that while the V-O cassettes were not part of media, they directly interacted with the VCR and were necessary for the VCR to function. As a result, the Court found that they were integral and constituent parts vital to the functioning of VCRs, and classified them as parts of the VCR. Id. at 945-946.
In the present case, like in Technicolor, the subject merchandise cannot be considered media because it is imported separately from the PSP disc. Unlike the merchandise at issue in Technicolor, however, the subject UMD cover does not interact with the PSP machine when the game disc is inside it. To the contrary, the UMD cover simply holds the disk in place while it is being read by the machine, and contains a small cutout through which the disc is read. As a result, the UMD cover cannot be considered a part of a PSP game machine and is therefore excluded from classification in heading 9504, HTSUS. As a result, it is classified in heading 3926, HTSUS, as an other article of plastic.
HOLDING:
By application of GRI 1, the subject UMD covers are classified in heading 3926, HTSUS. They are specifically provided for in subheading 3926.90.99, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” The applicable duty rate is 5.3% ad valorem.
You are to mail this decision to the Internal Advice requester no later than 60 days from the date of the decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel and to the public on CBP’s website, located at www.cbp.gov by means of the Freedom of Information Act and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division