Dentons US LLP
1900 K Street NW
Washington, DC 20006
RE: The tariff classification of View-Master Virtual Reality Experience Packs from an undisclosed country.
Dear Mr. Baisburd:
In your letter, you requested a tariff classification ruling. Descriptive and illustrative literature, and a “View Master Virtual Reality Starter Pack” instruction pamphlet were provided. As requested, the View-Master Virtual Reality Experience Pack (VMVREP) / Wildlife and the View-Master Virtual Reality viewer will be returned to you.
Each VMVREP is packaged in an outer printed cardboard box and has an inner printed cardboard box with an affixed plastic portfolio similar to a multi-disc DVD case or software case. Each inner printed cardboard box with plastic portfolio contains three plastic discs and has a pouch for a cardboard Pass Card. The VMVREPacks (VMVREPs) include the following experiences: (1) Destinations, (2) Discovery™ Underwater, (3) National Geographic™ Wildlife (the “Wildlife Experience Pack”), and (4) Space. Each of the discs (reels) is approximately 3½-inches in diameter and is constructed primarily of two pieces of plastic: one piece of plastic is white and the other piece of plastic is a bright primary color (e.g., the Wildlife Experience Pack discs are white on top and mustard yellow on bottom). The white piece of plastic has rectangular holes arranged around its perimeter, which are filled by rectangular shapes in the contrasting piece of plastic, such that the two pieces of plastic combine into a disc are reminiscent of the iconic cardboard View-Master stereoscopic reel, designed for use in the original View-Master. On the center of the face of each disc is a [black and white printed drawing, an icon]. The drawing is different for each disc in an “experience pack” and different from one experience pack to another. For example, the three drawings for the “Wildlife Experience Pack” depict, respectively, a kangaroo with its joey, a lion’s head and a parrot in flight. The discs and Pass Card function as game pieces for smartphone video game software “Apps,” separately downloaded. The Pass Card interacts with the smartphone screen to unlock features of the downloaded software. Similarly, viewing the printed drawings on the face of the discs with a smartphone equipped with the software unlocks additional features.The VMVREPs are intended for use with the View-Master Virtual Reality viewer. When so used, the result is an immersive 3-D virtual reality experience. While users hold the viewer to their eyes, they can look up or down, left or right, and find themselves completely surrounded by the virtual reality of whichever scene is currently triggered by use of one of the discs contained within the VMVREPs. The view in the viewer changes just as if the user were actually standing within the scene taking a look around. Icons within the scene, which can be activated by pressing a button on the viewer, allow the user to travel to different vantage points within the scene (e.g., if the Acropolis scene is loaded, the user can move to different points on the Acropolis to look around and within specific features, such as the Temples to Poseidon and Athena). Different VMVREPs can be purchased and used with the viewer, such as Destinations, which transports the user to places from the Statute of Liberty to the Tower of London to the ancient Mayan city of Chichen Itza. Some VMVREPs are also equipped with sound, such as the National Geographic Wildlife Experience, further adding to the immersive environment.
From the instruction pamphlet, we note the following features for use of the reel(s): (1) ensure that the “App” is running, (2) close the viewer with the smartphone inside, (3) place your hand through the wrist strap, (4) place the preview reel on a flat surface, (5) look through the viewer at the reel from a distance of 10-inches or less, (6) digital icons will appear above the reel – this effect is called the “Augmented Reality” (AR), and (7) select the experience you want to explore by looking at the appropriate AR icon and pulling the lever/trigger. For the merchandise concerned the downloaded “App” recognizes the printed icon on the reel providing an AR, thereby allowing the user to engage in a virtual experience. You indicate that the VMVREPs carry-on the View-Master’s long tradition as a leading educational toy. Additionally, you indicate that in 1999, the earlier iterations of the View-Master, were inducted into the National Toy Hall of Fame based in part on a recognition of their value as educational toys. You state that the VMVREPs are game pieces, which—when used in conjunction with a smartphone to which certain software “Apps” have been downloaded—permit the user to unlock various features of an immersive experience, and are intended as a pleasurable diversion for children ages seven and up. With case in point laid-out, it is your “view” that the merchandise concerned is classifiable in subheading 9503.00.0073 of the Harmonized Tariff Schedule of the United States (HTSUS), as a toy.
Your contention is that the VMVREPs are examples of “app toys” and cite several rulings (See NY N258465 dated 11/14/14, regarding the Ozobot miniature motorized robot with coordinating “Ozobot app”; NY N222060 dated 6/27/12, regarding the SpellShot Battle Wizards “designed to be used with the SpellShot App on the iPad”). However, the VMVREPs are distinguishable from the goods found in those rulings. In those rulings, the goods were still physically toys which provided imaginary and manipulative play even without an iPad or other mobile device. You also compare the VMVREPs to the Sphero robotic ball and AR.Drone Quadricopter which were ruled as toys in NY N175730 dated 8/15/11 and NY N108937 dated 6/29/10, respectively. Again, the goods in both those rulings were toys in their own right, independent of any smart phone or device. For the merchandise concerned, there is nothing inherently amusing with the discs themselves.
The View Master “goggles,” for which the VMVREPs are solely designed to be used with, were the subject of NY N274341 dated 4/28/16. In that ruling, we classified the View Master goggles under subheading 9004.90.0000, HTSUS, which provided for “Spectacles, goggles and the like, corrective, protective or other: Other.” Being that the entire virtual reality experience requires the use of a smart-phone to be used in conjunction with the View Master goggles, and the disks are solely used with the View Master goggles and provide no amusement independent of these articles, classification as a toy is not appropriate.
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 VMVREPs are composed of different components (i.e., plastic and paper) and are considered composite goods. The ENs to the HTSUS, at GRI, Rule 3 (b) (VIII), state that “The factor which determines essential character will vary between different kinds of goods. It may for example, be determined by the nature of the materials or components, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” When the essential character of a composite good can be determined, the whole product is classified as if it consisted only of the material or component that imparts the essential character to the composite good. It is our position that the printed icon on each of the discs imparts the essential character to the VMVREPs, because without the printed icon the “App” cannot provide an AR, allowing the user to gain access to the virtual world.
When terms are not defined in the Harmonized Tariff Schedule of the United States (HTSUS) or the Explanatory Notes (ENs) to the HTSUS, they are construed in accordance with their common and commercial meaning – Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).
The Online Merriam-Webster Dictionary defines a “label” as a piece of paper, cloth, or similar material that is attached to something to identify or describe it. The Online Merriam-Webster Dictionary defines a “sticker” as piece of paper with a picture or writing on it and a sticky substance on its back that is used to attach it to a surface. Although there are similarities between a label and a sticker, we are of the opinion that the printed icon is not a label for tariff purposes, in that the printed icon does not identify or describe the nature of the object to which it is attached to. Consequently, the merchandise concerned falls to printed matter of heading 4911, HTSUS.
The applicable subheading for the VMVREPs, if not over 0.51 in thickness, will be 4911.91.2040, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Other printed matter, including printed pictures and photographs: Other: Pictures, designs and photographs: Printed not over 20 years at time of importation: Other: Lithographs on paper or paperboard: Not over 0.51 mm in thickness: Other.” The rate of duty will be free under Column 1, General, HTSUS, provided that the country of origin is one that the United States has “normal trade relations.”
The applicable subheading for the VMVREPs, if over 0.51 in thickness, will be 4911.91.3000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Other printed matter, including printed pictures and photographs: Other: Pictures, designs and photographs: Printed not over 20 years at time of importation: Other: Lithographs on paper or paperboard: Over 0.51 mm in thickness: Other.” The rate of duty will be free under Column 1, General, HTSUS, provided that the country of origin is one that the United States has “normal trade relations.”
The applicable subheading for the VMVREPs, if not lithographically printed, will be 4911.91.4040, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Other printed matter, including printed pictures and photographs: Other: Pictures, designs and photographs: Printed not over 20 years at time of importation: Other: Other: Other.” The rate of duty will be free under Column 1, General, HTSUS, provided that the country of origin is one that the United States has “normal trade relations.”
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at https://hts.usitc.gov/current.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Neil H. Levy at [email protected].
Steven A. Mack
National Commodity Specialist Division