CLA-2-95:OT:RR:NC:N4:424
Mr. Jason P. Matechak
Reed Smith LLP
1301 K Street, N.W.
Suite 1100 – E. Tower
Washington, DC 20005
RE: The tariff classification and country of origin marking requirements of
Two Wii Video Game Peripherals from China and Malaysia
Dear Mr. Matechak:
In your letter dated April 17, 2009, you requested a tariff classification ruling on behalf of Electronic Arts Inc. (EA).
In lieu of samples, photographs of the leg strap and resistance band for use with EA’s new video game designed for the Nintendo Wii, “EA Sports Active,” were submitted with your request. Each of these items will be imported separately and repackaged and sold in the U.S. with the “EA Sports Active” video game or repackaged and sold together as a multiplayer accessory.
The leg strap, which attaches to the upper thigh, is designed to hold the Wii Nunchuck controller and allows the gamer to utilize the Nunchuck’s motion sensing capabilities while connected to the Wii Remote by monitoring one’s leg movements during the various video game exercise activities. The gamer’s movements/actions are displayed via the on-screen avatar. The resistance band is used to increase the intensity of the various video game exercises and has the same design and physical properties as standard resistance bands used in strength training exercises. You state that each of the items are designed and marketed solely or principally for use with the “EA Sports Active” and therefore classified under subheading 9504.10.0000, Harmonized Tariff Schedule of the United States (HTSUS).
Merchandise imported into the United States is classified under the Harmonized Tariff Schedule of the United States. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
The items together are not considered a set for tariff purposes since each item is not put up in a manner suitable for sale directly to users with out repacking. Each component is imported separately and repackaged in the U.S., either with each other or with the actual video game. Therefore, both the leg strap and resistance band will be classified separately.
Additional U.S Rule of Interpretation 1(a) states that in the absence of special language or context which otherwise requires, a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.
Note 3, to chapter 95, states 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 leg strap meets this requirement and will be classified as an accessory to the Wii.
The resistance band is of the same class or kind as other commercially available resistance bands. It is suitable for use on its own and is a type of exercise equipment principally used during strength exercises, not as a video game accessory.
The applicable subheading for the leg strap will be 9504.10.0000, HTSUS, which provides for “Articles for arcade, table or parlor games… parts and accessories thereof: Video games of a kind used with a television receiver and parts and accessories thereof.” The rate of duty is free.
The applicable subheading for the premium resistance bands will be 9506.91.0030, HTSUS, which provides for “Other: Articles and equipment for general physical exercise, gymnastics or athletics; parts and accessories thereof...Other.” The rate of duty will be 4.6 % ad valorem.
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 http://www.usitc.gov/tata/hts/.
In your ruling request, you also sought the proper country of origin markings for the leg strap and resistance band when imported in bulk as well as when repackaged for retail sale in the U.S. together with the “EA Sports Active” video game by the importer EA. The leg strap is manufactured in China and the resistance band is manufactured in Malaysia. You propose to mark the shipping containers of the leg strap and resistance band in bulk with “Made in China” and “Made in Malaysia,” respectively. You also propose to mark the repackaged game bundle for retail sale with “Game Made in the U.S.A. Leg Strap Made in China. Resistance Band Made in Malaysia.”
The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article.
Articles for which the marking of the containers will reasonably indicate the origin of the article are excepted from marking under 19 U.S.C. §1304(a)(3)(D). For an exception to be granted under 19 U.S.C. §1304(a)(3)(D), generally the article must be imported in a marked retail container which will reach the ultimate purchaser unopened. (See also 19 CFR 134.32(d)).
In addition, when imported articles are repacked or manipulated in the United States after importation, the provisions of 19 CFR 134.26 are also applicable. Section 134.26(a) states that if an article subject to these requirements is intended to be repacked in retail containers (e.g., blister packs) after its release from Customs custody, or if the port director having custody of the article, has reason to believe such article will be repacked after its release, the importer shall certify to the port director that: (1) If the importer does the repacking, he shall not obscure or conceal the country of origin marking appearing on the article, or else the new container shall be marked to indicate the country of origin of the article in accordance with the requirements of this part.
In the instant case, the leg strap and premium resistance bands imported in bulk may be excepted from individual marking pursuant to 19 CFR 134.32(d), provided that their respective outer containers are marked with the proper country of origin (“Made in China” and “Made in Malaysia”) and that CBP officials at the port of entry are satisfied that the articles will reach the ultimate purchaser in properly marked containers and the certification requirements of 19 CFR 134.26 are executed.
As for the marking of the repackaged game bundle to be sold at retail, your proposed marking of “Game Made in the U.S.A. Leg Strap Made in China. Resistance Band Made in Malaysia” would be acceptable provided the general requirements for permanency, legibility and conspicuousness are met.
The issue of marking articles "Made in the U.S.A." or similar words denoting U.S. origin, is under the authority of the Federal Trade Commission (FTC). We suggest that you contact the FTC Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508 on the propriety of proposed markings indicating that an article is “Made in the U.S.A.”.
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 James Forkan at (646) 733-3025.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division