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HQ 960624



August 29, 1997

RR:TC:MM 960624 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8504.40.90

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

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