Tariff classification of the OZEN Heart Rate Sensor

HQ H248106 February 24, 2014 CLA-2 OT:RR:CTF:TCM H248106 TNA CATEGORY: Classification TARIFF NO.: 9029.20.40 Mr. Vincent Barone VP, Customs Operations Secure Customs Brokers 10 Fifth Street, 4th Floor Valley Stream, NY 11581 RE: Tariff classification of the OZEN Heart Rate Sensor Dear Mr. Barone: This is in response to your request on behalf of Ubisoft, submitted on August 23, 2013, to U.S. Customs and Border Protection (“CBP”), National Commodity Specialist Division (“NCSD”), for a binding ruling on the tariff classification of the OZEN heart rate sensor under the Harmonized Tariff Schedule of the United States (“HTSUS”). Your ruling request was forwarded to this office for a response. FACTS: The subject merchandise consists of a product named OZEN. It consists of a fingertip attachment that measures heart rate, attached to a USB key by a retractable plastic cable. The fingertip attachment has an infrared LED and a photo transistor. The USB key contains a mixed signal microcontroller to read analog data and detect the user’s pulse. It also contains analog amplifiers to amplify the signal it receives from the user’s fingertip and supply LED current to the fingertip attachment. Lastly, it contains a voltage regulator. Analog signals are sent from the fingertip attachment to the USB key via the phototransistors in the fingertip attachment. The data contained therein is read using an analog to digital converter embedded in the USB key’s microcontroller. When the USB key is plugged into a computer, the computer reads the data using USB HID protocol. The USB key contains a minimal amount of memory that allows it to store the user’s profile- i.e., prior heart rate data- but little else. The subject merchandise is intended to be used in conjunction with a specially designed computer program that is downloaded separately onto the user’s computer. The program, described in your ruling request as a “game” is designed to teach people how to relax and fight stress by teaching breathing techniques and other relaxation methods. The subject merchandise’s USB key does not contain sufficient memory to run the software. The separate components of the subject merchandise cannot be used alone: the hardware cannot be used without the software, and the software program cannot be used without the subject merchandise’s fingertip sensor and USB key. The device cannot be plugged into a video game machine or any similar device other than a computer. The subject merchandise cannot be used as a medical device, nor is it certified to comply with FDA regulations. The whole product is imported with a plastic carrying case and outer packaging. A sample of the subject merchandise was received and examined by this office. The sample is being returned to you as per your request. ISSUE: Whether the subject OZEN heart rate sensor is classified in heading 8471, HTSUS, as a unit of an automatic data processing machine, in heading 9029, HTSUS, as a heart rate monitor, or in heading 9504, HTSUS, as a video game. LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order. The HTSUS provisions under consideration in this case are as follows: 8471 Automatic data processing machines and units thereof; magnetic or optical readers, machines for transcribing data onto data media in coded form and machines for processing such data, not elsewhere specified or included: 9029 Revolution counters, production counters, taximeters, odometers, pedometers and the like; speedometers and tachometers, other than those of heading 9014 or 9015; stroboscopes; parts and accessories thereof: 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: Note 1 to Section XVI, HTSUS, of which heading 8471, HTSUS, is a part, provides that: This section does not cover: * * * (m) Articles of Chapter 90; * * * (p) Articles of Chapter 95; Note 5 to Chapter 84, HTSUS, provides, in pertinent part, the following: * * * (C) Subject to paragraphs (D) and (E) below, a unit is to be regarded as being part of an automatic data processing system if it meets all of the following conditions: (i) It is of a kind solely or principally used in an automatic data processing system; (ii) It is connectable to the central processing unit either directly or through one or more other units; and (iii) It is able to accept or deliver data in a form (codes or signals) which can be used by the system. Separately presented units of an automatic data processing machine are to be classified in heading 8471. However, keyboards, X-Y co-ordinate input devices and disk storage units which satisfy the conditions of paragraphs (C) (ii) and (C) (iii) above, are in all cases to be classified as units of heading 8471. * * * (E) Machines incorporating or working in conjunction with an automatic data processing machine and performing a specific function other than data processing are to be classified in the headings appropriate to their respective functions or, failing that, in residual headings. Subheading Note 1 to Chapter 95, HTSUS, states the following: Subheading 9504.50 covers: (a) Video game consoles from which the image is reproduced on a television receiver, a monitor or other external screen or surface; or (b) Video game machines having a self-contained video screen, whether or not portable. This subheading does not cover video game consoles or machines operated by coins, banknotes, bank cards, tokens or by any other means of payment (subheading 9504.30). The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The EN for heading 8471, HTSUS, states, in pertinent part: (I) AUTOMATIC DATA PROCESSING MACHINES AND UNITS THEREOF (B) SEPARATELY PRESENTED UNITS Subject to the provisions of Notes 5 (D) and (E) to this Chapter, this heading also covers separately presented constituent units of automatic data processing systems. These may be in the form of units having a separate housing or in the form of units not having a separate housing and designed to be inserted into a machine (e.g., insertion onto the main board of a central processing unit). Constituent units are those defined in Part (A) above and in the following paragraphs, as being parts of a complete system. An apparatus can only be classified in this heading as a unit of an automatic data processing system if it: (a) Performs a data processing function; (b) Meets the following criteria set out in Note 5 (C) to this Chapter: (i) It is of a kind solely or principally used in an automatic data processing system; (ii) It is connectable to the central processing unit either directly or through one or more other units; and (iii) It is able to accept or deliver data in a form (codes or signals) which can be used by the system. (c) Is not excluded by the provisions of Notes 5 (D) and (E) to this Chapter. In accordance with the last paragraph of Note 5 (C) to this Chapter, keyboards, X-Y co-ordinate input devices and disc storage units which satisfy the conditions of items (b) (ii) and (iii) above, are in all cases to be classified as constituent units of data processing systems. If the unit performs a specific function other than data processing, it is to be classified in the heading appropriate to that function or, failing that, in a residual heading (see Note 5 (E) to this Chapter). If an apparatus does not meet the criteria set out in Note 5 (C) to this Chapter, or is not performing a data processing function, it is to be classified according to its characteristics by application of General Interpretative Rule 1, if necessary in combination with General Interpretative Rule 3 (a)… The EN for heading 9029, HTSUS, states, in pertinent part: The heading includes: (A) Counters indicating a total number of units of any kind (revolutions, items, length, etc.), or an amount to be paid. But the heading excludes totalling devices of a kind falling in heading 84.73, the gas, liquid or electricity supply or production meters of heading 90.28, and opisometers or planimeters of heading 90.17 or 90.31. (B) Apparatus indicating a speed of revolution or a linear speed in relation to a time factor (tachometers and speed indicators), other than those of heading 90.14 or 90.15… Such apparatus and instruments remain classified here whether or not they incorporate a clockwork recording device, and whether or not they are fitted with simple mechanical or electric devices for bringing a signalling apparatus, machine controls, brakes, etc., into action…. (B) SPEED INDICATORS AND TACHOMETERS These instruments differ from the revolution counters and production counters of Part (A) above in that they indicate the number of revolutions, speed, output, etc., per unit of time (e.g., revolutions per minute, miles per hour, kilometres per hour, metres per minute). They are usually mounted on vehicles (cars, motorcycles, bicycles, locomotives, etc.) or machines (motors, turbines, paper-making machines, printing machinery, textile machinery, etc.)…. Speed indicators and tachometers of this heading may be fixed or portable, simple or multi-function (e.g., maximum or minimum), differential (in which case they give the difference between two speeds as a percentage), combined with an adding counter or a time meter or graphical recording device, etc. The heading also covers certain instruments which simultaneously record speed, mileage, time in motion and at a standstill, etc. The EN for heading 9504, HTSUS, states, in pertinent part: This heading includes: * * * (2) Video game consoles and machines as defined in Subheading Note 1 to this Chapter. Video game consoles and machines whose objective characteristics and principal function are such that they are intended for entertainment purposes (game-playing) remain classified in this heading, whether or not they fulfil the conditions of Note 5 (A) to Chapter 84 regarding automatic data processing machines. The heading also includes parts and accessories of video game consoles and machines (for example cases, game cartridges, game controllers, steering wheels), provided they fulfil the conditions of Note 3 to this Chapter. However, the heading excludes: (a) Optional peripherals (keyboards, mouses, disk storage units, etc.) which fulfil the conditions of Note 5 (C) to Chapter 84 (Section XVI). (b) Optical discs recorded with game software and used solely with a game machine of this heading (heading 85.23). We begin by noting that the subject merchandise is imported with outer packaging and a plastic carrying case. GRI 5 provides that: In addition to the foregoing provisions, the following rules shall apply in respect of the goods referred to therein: (a) Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character; (b) Subject to the provisions of rule 5(a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use. In the present case, the plastic carrying case is fitted to contain the subject merchandise and is suitable for long-term use. As such, it will be classified with the subject OZEN heart rate sensor. Furthermore, the information provided suggests that packing materials imported with the subject merchandise are of a kind normally used for packing the subject merchandise. There is no indication that these materials are for repeated use. As such, we classify the packing materials with the rest of the subject merchandise as well. We now examine the classification of the OZEN heart rate sensor under GRI 1. Initially, we note that “Articles of Chapter 90” and “Articles of Chapter 95” are excluded from Section XVI, HTSUS, by Note 1 to Section XVI. Because your ruling request describes the subject merchandise as a recreational computer game or accessory of heading 9504, HTSUS, we examine classification in heading 9504, HTSUS, first. Heading 9504, HTSUS, provides for “video game consoles and machines.” Specifically, the video game consoles and machines of this heading are those from which the image is reproduced on a television receiver, a monitor or other external screen or surface, or those having a self-contained video screen, whether or not portable. The subject merchandise does not contain a screen of its own. Furthermore, it is imported without the software that allows a consumer to use the merchandise with a computer. Lastly, the subject merchandise can only to be used with a computer, and cannot be used with a television receiver, monitor, or other external screen or surface. The subject merchandise is clearly distinguishable from merchandise such as Sega Genesis or Nintendo Wiis that CBP has previously classified as video game consoles or video game machines of heading 9504, HTSUS. See, e.g., HQ 952673, dated February 3, 1993; NY N026579, dated May 13, 2008; NY N049400, dated February 4, 2009. As a result, the subject merchandise cannot be classified in heading 9504, HTSUS, and we examine alternate headings. Heart rate monitors are described by the terms of heading 9029, HTSUS. Articles of Chapter 90, HTSUS, are precluded from classification in Section XVI, HTSUS, which encompasses headings 84 and 85, HTSUS. See Note 1(m) to Section XVI, HTSUS. Thus, if the subject merchandise is described by the terms of heading 9029, HTSUS, it cannot be classified in Section XVI, HTSUS. As a result, we examine classification in heading 9029, HTSUS. Heading 9029, HTSUS, provides for “Revolution counters, production counters, taximeters, odometers, pedometers and the like; speedometers and tachometers, other than those of heading 9014 or 9015; stroboscopes; parts and accessories thereof.” Instruments of this heading indicate the number of revolutions, speed, output, etc., per unit of time- usually in revolutions per minute, miles per hour, kilometres per hour, metres per minute. See EN 90.29. Furthermore, the speed indicators of this heading may be fixed or portable, simple or multi-function (e.g., maximum or minimum), differential (in which case they give the difference between two speeds as a percentage), combined with an adding counter or a time meter or graphical recording device, etc. See EN 90.29. The subject merchandise is described by these terms, as it detects and measures a pulse, converts analog to digital data, and inputs that signal to a computer. This item’s minimal memory, which allows a user to save past data for comparison, is evidence of its function of detecting a pulse and sending the signal to another device (i.e., a computer). Furthermore, CBP has long classified these types of heart rate monitors for detecting a pulse in heading 9029, HTSUS. See, e.g., NY N173124, dated July 7, 2011; NY N170438, dated July 5, 2011; NY N017407, dated October 10, 2007. See also HQ 087550, dated February 28, 1991; NY 863773, dated June 20, 1991; NY N167295, dated June 9, 2011; NY N167297, dated June 9, 2011. As a result, the subject merchandise is classified in heading 9029, HTSUS, as a speedometer. Lastly, we note that CBP considered classification of the subject merchandise in heading 8471, HTSUS, as a separately presented unit of an ADP machine. However, the subject merchandise is precluded from classification in Chapter 84, HTSUS, because it is an article of Chapter 90, HTSUS. See Note 1(m) to Section XVI, HTSUS. Furthermore, although the subject merchandise qualifies as a unit of an ADP machine under the terms of Note 5(C) to Chapter 84, HTSUS, it has a function other than data processing- i.e., as a heart monitor. As a result, it is precluded from classification in heading 8471, HTSUS, by virtue of note 5(E) to Chapter 84, HTSUS. HOLDING: By operation of GRI 1, the subject OZEN heart rate sensor is classified in heading 9029, HTSUS. It is specifically provided for in subheading 9029.20.40, HTSUS, which provides for “Revolution counters, production counters, taximeters, odometers, pedometers and the like; speedometers and tachometers, other than those of heading 9014 or 9015; stroboscopes; parts and accessories thereof: Speedometers and tachometers; stroboscopes: Other speedometers and tachometers.” The column one, general rate of duty is free. By operation of GRI 5, the plastic carrying case and the packing materials that are imported with the OZEN heart rate sensor are classified with it in subheading 9029.20.40, HTSUS. 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 on the World Wide Web at www.usitc.gov. A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction. Sincerely, Ieva K. O’Rourke, Chief Tariff Classification and Marking Branch