OT:RR:CTF:TCM H063638 HvB
Port Director, Seattle Service Port
U.S. Customs and Border Protection
1000 Second Ave., Suite 2100 Seattle, WA 98104
Re: Protest and Application for Further Review No: 3001-09-100111; Screen protectors for PlayStation Portable (PSP)
Dear Port Director:
The following is in response to the Application for Further Review (“AFR”) on Protest No. 3001-09-100111, timely filed on March 24, 2009, by counsel on behalf of Target Stores (“Protestant”), a division of Target Corporation (Item # DPCI 207-00-0833), regarding classification of Psyclone screen guards for PlayStation Portable (PSP) under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise at issue consists of two screen shields, a “squeegee” and a cleaning cloth, marketed and packaged together for use for the PSP 2000, a handheld videogame system. The screen shield is a piece of plastic film measuring 96 mm by 55 mm with rounded corners. It is designed to be secured to the game screen to keep it free of dust and scratches. The “squeegee” is a smaller rectangular sheet of smaller plastic that is used when applying the screen guard to keep the plastic film flat and free of air bubbles. A cleaning cloth made of knit textile fabric is included.
On November 19 and December 17, 2007, Target’s merchandise was entered under subheading 3926.90.998, HTSUS, which provides for: “Other Articles of plastic and articles of other materials of headings 3901 to 3915: Other…Other.” Protestant claims that the merchandise should have been entered under subheading 9504.90.4000, HTSUS, which provides for “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; Other: Game machines, other than those operated by coins, banknotes (paper currency), disc or similar articles; parts and accessories thereof.” The screen protectors were liquidated in subheading 3926.90.00, HTSUS, on October 3, 2008 and October 31, 2008.
ISSUE:
Whether the screen protectors are classifiable as “other articles of plastic and articles of other materials of headings 3901 to 3914” in subheading 3926.90, HTSUS, or in subheading 9504.90, HTSUS, as “game machines, other than those operated by coins, banknotes (paper currency), discs, or similar articles; parts and accessories thereof”?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed on March 24, 2009 within 180 days of liquidation. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, §2103(2)(B)(ii),(iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 3001-09-100111 was properly accorded to protestant pursuant to 19 C.F.R. §§ 174.24 and 174.25. In this instance, Protestant alleges that the decision against which the protest was filed is alleged to be inconsistent with ruling of the Commissioner of Customs or his designee on the same or substantially similar merchandise under § 174.24(a). Specifically, Protestant alleges the action of the Port is inconsistent with New York Ruling Letter(s) (“NY”) N031818, dated July 21, 1998, NY N011865, dated June 4, 2007, and NY N025735, dated May 5, 2008, in which CBP classified screen guards in heading 9504, HTSUS.
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, the remaining GRIs 2 through 6 may then be applied in order.
The 2007 HTSUS provisions under consideration are:
3926 Other articles of plastic and articles of other materials:
3926.90.99 Other: Other
* * *
9504 Articles for arcade, table or parlor games, including pinball machines, billiards and special tables for casino games, automatic bowling alley equipment; parts and accessories thereof:
9504.90 Other:
9504.90.40 Games, machines, other than those operated by coins, banknotes (paper currency), discs or similar article; parts and accessories thereof
Chapter 39, Note 2, HTSUS, provides in relevant part:
This chapter does not cover:
(y) Articles of chapter 95 (for example, toys, games, sports equipment);
Chapter 95, Note 3, HTSUS, provides:
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.
Note 2(y) to Chapter 39, Section VII, HTSUS, which covers heading 3926 states that Chapter 39 does not cover “[a]rticles of Chapter 95.” Note 3 to chapter 95, states, in pertinent part, that “…parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles.” Accordingly, we must first determine whether classification in heading 9504, HTSUS, as an accessory, is appropriate before consideration is given to classification in heading 3926, HTSUS.
To be classified under Chapter 95 as an accessory, CBP has held that an article must be suitable for use solely or principally with articles of that Chapter, in conformance with Legal Note 3 to Chapter 95. See, e.g., HQ 952716, dated March 3, 1993; HQ 966216, dated May 27, 2003; HQ H072236, dated February 18, 2010. In determining whether an article is an accessory or not, we have also in the past looked to see whether it contributes to the effectiveness of the primary article. See HQ 967858, dated May 19, 2006 and HQ 966736, dated November 17, 2003. Thus, to be classified as an accessory of heading 9504, the article must contribute directly to the effectiveness of the primary article (the handheld video game machine) and it must be suitable for use solely or principally with the primary article. See HQ H021138, dated November 10, 2008.
CBP has previously classified merchandise that is designed specifically to be used with accessories for video games under subheading 9504.90.4000, HTSUS, as accessories. See, e.g., NY R04890, dated September 16, 2006; NY N045112, dated December 18, 2008; N025735, dated May 5, 2008; NY N011865, dated June 4, 2007, and NY N007595, dated March 6, 2007.
In the present case, the subject merchandise is designed to fit and to be used exclusively with the PSP. In this case, the Psyclone screen guard is designed to protect the PSP’s screen from scratches and dust. As a result, the merchandise is correctly classified under subheading 9504.90.40, HTSUS, as other game machines, parts and accessories.
HOLDING
By application of GRI 1, the merchandise is classified in heading 9504, HTSUS, specifically in subheading 9504.90.40, HTSUS, which provides for: “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; Other: Game machines, other than those operated by coins, banknotes (paper currency), disc or similar articles; parts and accessories thereof.” As such, the applicable duty rate at the time of entry was free.
Since reclassification of the merchandise as indicated above would result in a lower duty rate, you are instructed to Allow the Protest in Full. In accordance with Sections IV and VI of the CBP Protest /Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division