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NY K80367




November 17, 2003
CLA-2-85: RR: NC: 1:108 K80367

CATEGORY: CLASSIFICATION

TARIFF NO.: 8524.39.4000

Ms. Lorrie Heavey
ATE Logistics, Inc.
855 South 192nd Street, Suite 900
SeaTac, Washington 98148

RE: The tariff classification of a computer game from China.

Dear Ms. Heavey:

In your letter dated October 23, 2003, on behalf of your client Healing Rhythms, Inc. DBA the Wild Divine Project, you requested a tariff classification ruling.

The merchandise at issue is a computer based CD-ROM game entitled the Journey to the Wild Divine. It is packaged for retail sale with a user-worn interface device called “Magic Rings”, software for both Macintosh and other PCs, a printed users guide, USB cables, background music CD-ROM and a docking station.

The proposed classification, of this CD-ROM computer based game under HTS heading 9504.10 is incorrect since this heading provides for video home game consoles or video game machines such as Nintendo, Sega Genesis, and the PS2 (and parts of those game systems) that are designed for connection to television sets.

Legal Note 6 to chapter 85 requires, in part, that records, tapes and other media of heading 8523 or 8524 remain classified in those headings when entered with the apparatus for which they are intended. For the purpose of this note, the term “apparatus for which they are intended” refers to apparatus which reads or plays the media or which records or writes on the media. Based upon the configuration of this particular group of commodities no item qualifies as an “intended” apparatus for the CD-ROM computer game. Therefore it is imported with “non-intended” apparatus. Legal Note 6 does not apply to the CD-ROM computer game. Classification of the configured commodities will be in accordance with Section XVI Chapter 85 General Note B (1), Harmonized tariff Schedule of the United States. This requires one to determine if the configured commodities comprise a set in accordance with Explanatory Note X.

Explanatory Note X to GRI 3b provides for the purpose of this rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:

A. Consist of at least two different articles which are, prima facie, classifiable in different headings.

B. Consist of products put up together to meet a particular need or carry out a specific activity; and

C. Are put up in a manner suitable for sale to users without repackaging (e.g. in boxes or cases or on boards).

All the aforementioned articles are prima facie classifiable in different headings. Together they enable the user to play the CD-ROM game on a computer. Based upon the information provided the imported condition will be the retail packaging. Therefore it is the opinion of this office that the CD-ROM game, entitled The Journey to the Wild Divine constitutes a set in accordance with Explanatory Note X.

In accordance, in part, with GRI3b goods put up in sets for retail sale, which cannot be classified by reference to GRI 3a, shall be classified as if they consisted of the material or component which gives them their essential character.

EN VIII to GRI 3b states that the factor, which determines essential character, will vary as between different kinds of goods. It may for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the goods.

Based upon the particular configuration of this retail set it is the opinion of this office that no single article, that merit equal consideration, impart an essential character. Both the user-worn interface device and the CD-ROM computer game are equally necessary for the purpose of playing the game. Therefore classification will be in accordance with GRI 3c, Harmonized tariff schedule of the United States (HTS), which requires in part, that the item be classified in the heading which occurs last in numerical order among those which merit equal consideration. Therefore classification will be in the appropriate provision for the computer based CD-ROM as recorded media.

The applicable subheading for the Journey to the Wild Divine computer based game set will be 8524.39.4000, Harmonized Tariff Schedule of the United States (HTS), which provides for Records, tapes and other recorded media for sound or other similarly recorded phenomena, including matrices and masters for the production of records, but excluding products of chapter 37: Discs for laser reading systems: Other: For reproducing representations of instructions, data, sound, and image, recorded in a machine readable binary form, and capable of being manipulated or providing interactivity to a user, by means of an automatic data processing machine; proprietary format recorded discs. The rate of duty will be free. 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 Michael Contino at 646-733-3014.

Sincerely,

Robert B. Swierupski
Director,

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