RR:TC:MM 960624 DWS
Port Director of Customs
300 S. Ferry Street
Terminal Island, CA 90731
RE: Protest 2704-96-103354; Power Supplies; Chapter 95, Note 3;
Additional U.S.
Rule of Interpretation 1(a); Principal Use; U.S. v. The
Carborundum Company;
HQ 957836; 9504.30.00
Dear Port Director:
The following is our decision regarding Protest 2704-96-103354 concerning your action in classifying and assessing duty
on power supplies under the Harmonized Tariff Schedule of the
United States (HTSUS).
FACTS:
The merchandise consists of power supplies (model nos. 44-1045/USP-11-200XT, 44-1035/USP-11-150XT, 44-1011-12A/UK-9, and
44-1015-15A/UK-9) which, as is claimed by the protestant, are
used in commercial video game machines. All of the above models
of power supplies share the same characteristics. They are
enclosed in rectangular metal boxes which, depending upon the
model number and type, measure 6 in. x 5.5 in. x 3.5 in., 8.5 in.
x 5.5 in. 4 in., or 7.75 in. x 5 in. x 2 in. The power supplies
each contain a printed circuit board (PCB) on which numerous
electrical components have been mounted, including resistors,
capacitors, a transformer, etc. They each have numerous, narrow
slots cut throughout the housing to aid in the dissipation of
heat from the unit. Some of the power supplies are shipped with
a printed electrical schematic, and, where necessary, mounting
plates with pre-drilled holes and machine screws for mounting the
units within video games.
Models 44-1045 and 44-1035 share the following
characteristics which, as the protestant claims, dedicates their
use as parts of video games. They have been modified so that
they have connections for only one or two devices, such as a
video game monitor and central processing unit (CPU) board. They
also contain "molex" connectors, which are standard connectors
for video games. Model 44-1035 contains an on/off button on one
side which is designed to protrude through a video game cabinet
after installation. Model 44-1045 contains a separate connector
for steering wheel controls. The protestant claims that models
44-1011 and 44-1015 possess voltages and amperages which
specifically service video games.
The power supplies were entered on April 6, 1996, under
subheading 9504.30.00, HTSUS, as parts of other games. The entry
was liquidated on August 2, 1996, under subheading 8504.40.90,
HTSUS, as other static converters. The protest was timely filed
on October 31, 1996.
ISSUE:
Whether the power supplies are classifiable under subheading
8504.40.90, HTSUS, as other static converters, or under
subheading 9504.30.00, HTSUS, as parts of other games.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's). GRI
1 provides that classification is determined according to the
terms of the headings and any relative section or chapter notes.
The HTSUS provisions under consideration are as follows:
8504.40.90: [e]lectrical transformers, static converters
(for example, rectifiers)
and inductors; power supplies for automatic
data processing
machines or units thereof of heading 8471;
parts thereof: [s]tatic
converters; power supplies for automatic data
processing machines
or units of heading 8471: [o]ther.
The general, column one rate of duty for goods classifiable
under this provision
is 2.4 percent ad valorem.
9504.30.00: [a]rticles 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:
[o]ther games, coin-or token-operated, other
than bowling alley
equipment; parts and accessories thereof.
Goods classifiable under this provision receive duty-free
treatment.
Chapter 95, note 3, HTSUS, states that:
[s]ubject 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.
Additional U.S. Rule of Interpretation 1(a), HTSUS, states
that:
[i]n the absence of special language or context which
otherwise requires--
(a) 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.
The protestant claims that because the power supplies are
principally used as parts of video games classifiable under
heading 9504, HTSUS, based upon chapter 95, note 3, HTSUS, they
are also classifiable under heading 9504, HTSUS. However, the
protestant must sufficiently prove that the power supplies belong
to a class of merchandise which is principally used as parts of
video games. Whether the power supplies are actually used with
game machines of heading 9504, HTSUS, is irrelevant.
Factors pertinent in determining whether merchandise falls
within a particular class or kind include general physical
characteristics, the expectation of the ultimate purchaser,
channels of trade, environment of sale (accompanying accessories,
manner of advertisement and display), use in the same manner as
merchandise which defines the class, economic practicality of so
using the import, recognition in the trade of this use.
Susceptibility, capability, adequacy, or adaptability of the
import to the common use of the class is not controlling. U.S.
v. The Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373
(1976).
Model 44-1025, which is part of a companion protest (Protest
No. 2704-96-103383) filed by the same protestant and similar to
the power supplies of this protest in both construction and use,
was submitted to the U.S. Customs Laboratory, Los Angeles,
California, for analysis. In the Laboratory Report, dated April
18, 1997, it states, in part, that:
. . . the sample is a power supply. In its present form,
the unit cannot be used
as a power supply for personal computers. However, it can
be used as a power
supply for video game machines as claimed or any other
machine requiring
these power requirements and connectors. (emphasis
supplied).
We find that, although the subject power supplies may
actually be used for video game machines, the protestant has not
sufficiently proven that, in their condition as imported, they
are in the class of merchandise principally used with the
merchandise of heading 9504, HTSUS. Heading 9504, HTSUS, is a
principal use provision; it is not an actual use provision.
Based upon the Customs Laboratory Report and literature provided
by the protestant, it is our position that the power supplies,
which may be used with other machines as power supplies, are
classifiable under subheading 8504.40.90, HTSUS.
The protestant has offered a report from an "independent
laboratory" which states that the power supplies are used with
television games. This report is vague in that it does not state
whether "television games" are coin- or token-operated games
(with which the protestant claims the power supplies are used) or
standard home video games used with a television set. Also, we
find that this report does not override the findings in the
Customs Laboratory Report or the information provided in the
protestant's literature.
The protestant cites HQ 957836, dated October 17, 1995, in
which we held that VGA monitors, because of their special design,
were principally used as parts of game machines and were
classifiable with those machines under heading 9504, HTSUS. It
is our position that HQ 957836 is irrelevant to this protest
because issues involving principal use, by their nature, must be
handled on a case-by-case basis. In this case, the protestant
has failed to prove that the power supplies are part of a class
of merchandise which is principally used with the game machines
of heading 9504, HTSUS.
HOLDING:
The power supplies are classifiable under subheading
8504.40.90, HTSUS, as other static converters.
The protest should also be DENIED. In accordance with
Section 3A(11)(b) of Customs Directive 099 3550-065, dated August
4, 1993, Subject: Revised Protest Directive, this decision,
together with the Customs Form 19, should be mailed by your
office to the protestant no later than 60 days from the date of
this letter. Any reliquidation of the entry in accordance with
the decision must be accomplished prior to mailing of this
decision. Sixty days from the date of the decision the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and the public via the Diskette Subscription Service, Freedom
of Information Act, and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division