CLA-2: OT:RR:CTF:TCM H235178 DSR
Mr. Steven W. Baker
Law Offices of Steven W. Baker
448 Ignacio Boulevard #323
Novato, CA 94949
RE: Revocation of NY L83006 (classification of a Nintendo “Wavebird” Wireless
Controller from China); Modification of NY M86614 (classification of a Wii controller from China); Revocation of NY N118298 (classification of three video game components from China); Revocation of NY N143476 (classification of a Wii compatible remote controller from China)
Dear Mr. Baker:
This letter is in reference to four New York Ruling Letters (NY) in which certain wireless video game controllers, or retail sets containing such controllers, were classified under subheading 9504.10.00, Harmonized Tariff Schedule of the United States (HTSUS), which covers parts and accessories of video games of a kind used with a television receiver. The four rulings are NY L83006 (April 22, 2005); NY M86614 (October 11, 2006); NY N118298 (August 30, 2010); and NY N143476 February 2, 2011). We have re-examined those rulings and now believe that we incorrectly classified the subject articles. This letter serves to revoke or modify the rulings, as explained below.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed revocations of NY L83006, NY N118298 and NY N143476 , and modification of NY M86614, was published in the Customs Bulletin, Volume 52, No. 8, on February 21, 2018. CBP received no comments in response to the notice.
FACTS:
In NY L83006, the merchandise, labeled as the "Wavebird" controller, is a wireless controller for the Nintendo Game Cube. The controller contains an RF transmitter that sends joystick and button information to an RF receiver that is designed to plug into the front of the Game Cube console. The controller replaces standard controllers, and it allows people to play the Nintendo Game Cube from anywhere in the room without wires.
In NY M86614, the merchandise at issue here, labeled as the "Wii" controller, is a handheld, motion-sensitive wireless device. The controller contains an RF transmitter that sends joystick and button information to control a Wii video game console.
In NY N118298, the first item, the Snakebyte Premium Fitness Board (White), item number SB90412, is designed to be used with the Nintendo Wii video game system and is compatible with the Wii Fit video game and other similar games that utilize the board’s technology. The Premium Fitness Board acts as a game controller, similar in design and function to Nintendo’s Balance Board, and contains four sensors that measure one’s weight and body balance, necessary for proper playing of the video games, and then replicates the body movements in the game. The Fitness Board, which connects wirelessly to the Wii via Bluetooth technology, emits a blue light on two sides when activated and also has a small LCD screen which displays one’s weight as well as a timer that measures one’s exercise duration. While providing a display to show one’s weight may be informative, the item’s ability to measure one’s weight is essential for proper game play. It is principally designed as a video game device. The second item, the Snakebyte Premium Remote XL+, item number SB905278, is also designed for use with the Nintendo Wii. The item is packaged as a set containing a Wii compatible remote with motion plus technology, two wrist straps, two rechargeable batteries and a generic USB cable for charging the remote. The last item, the Snakebyte Premium Bluetooth Controller, item number SB904714, is designed for use with Sony’s PlayStation 3 (PS3) video game console. The item is packaged as a set containing a PS3 compatible remote, two bonus clip-on triggers and a generic USB cable for charging the remote.
In NY N143476, the product is a radio remote controller that is compatible with the Wii console. The controller measures approximately 6” long x 1.5” wide. The remote controller features a clear jacket skin, an attached wrist strap and includes pointer, motion sensor and speaker functions. The item will be packaged and sold in a hanging box.
ISSUE:
Whether the articles are properly classified under heading 9405, HTSUS, as video game accessories or under heading 8526, HTSUS, as radio remote control apparatus for video game consoles.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs). GRI 1 requires that classification be determined first according to the terms of the heading of tariff schedule and any relative section or chapter notes, and unless otherwise required, according to the remaining GRIs taken in their appropriate order. The HTSUS provisions under consideration in this case are as follows:
8526 Radar apparatus, radio navigational aid apparatus and radio remote control apparatus:
Other:
8526.92 Radio remote control apparatus:
8526.92.10 Radio remote control apparatus for video game consoles.
* * *
9504 Video game consoles and machines, 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 :
9504.50.00 Video game consoles and machines, other than those of subheading
9504.30, and parts and accessories thereof.
* * * *
With particular regard to NY N118298, the Snakebyte Premium Fitness Board is imported alone. However, the Snakebyte Premium Remote XL+ and the Snakebyte Premium Bluetooth Controller are imported as retail sets subject to GRI 3. Our position is unchanged that the essential character of the Snakebyte Premium Remote XL+ set is imparted by the included Wii remote, while the essential character of the Snakebyte Premium Bluetooth Controller set is imparted by the included PS3 remote.
Note 3 to Chapter 95, HTSUS, states that “Subject to Note 1 [to Chapter 95, HTSUS], parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles.” However, Note 1(m) to Chapter 95, HTSUS, states that the chapter does not cover, in relevant part, “radio remote control apparatus (heading 8526).” Bluetooth technology is based upon radio frequencies, and the subject controllers in each of the rulings at issue employ Bluetooth technology to control video game consoles. Applying Note 1(m) to Chapter 95, HTSUS, the controllers are excluded from classification in Chapter 95 because they fit squarely within the scope of eo nomine heading 8526, HTSUS, which provides for, in pertinent part, “radio remote control apparatus.” They are specifically provided for under subheading 8526.92.10, HTSUS, which covers “radio remote control apparatus for video game consoles.”
HOLDING:
By application of GRI 1, the subject articles are classified in heading 8526, HTSUS. Specifically, they are classified in subheading 8526.92.10, HTSUS, which provides for “Radar apparatus, radio navigational aid apparatus and radio remote control apparatus: Other: Radio remote control apparatus: Radio remote control apparatus for video game consoles.” The column one, general rate of duty is “Free.”
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY L83006, NY N118298 and NY N143476 are revoked in accordance with this decision. NY M86614 is modified in accordance with this decision with respect to the classification of the Wii controller. The classification of the other item described therein remains unchanged.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division