CLA-2 RR:CR:GC 962507 BJB
Mr. Lee Silberzahn
Sony Electronics Inc.
123 Tice Boulevard,
Woodcliff Lake, NJ 07675
RE: Sony Flash Memory Stick; PCMCIA adapter card
Dear Mr. Silberzahn:
This is in response to your letter of September 17, 1998, to the Customs National Commodity Specialist Division, New York, requesting a ruling on the classification of a “non-volatile” or “flash memory card,” and a flash memory adapter card, pursuant to the Harmonized Tariff Schedule of the United States (“HTSUS”). Your letter and attachments were referred to this office for reply. In preparing this ruling, we also gave consideration to Sony’s supplemental correspondence of December 22, 1998, November 10, and 22, and December 15, 2000, and April 10, 2002. We regret the delay.
The articles are identified as a “Sony Flash Memory Stick,” (“flash memory card”), and a “flash memory card adapter,” (“adapter card”). The flash memory card measures 21.5mm (width), by 2.8mm (length), by 50mm (thickness), weighs 40 grams. It contains four integrated circuits, including those for an interface flash memory controller, flash memory, a flash memory reset, and noise protection. The flash memory card also contains capacitors, resistors, diodes, and a ceramic oscillator. It has a 64 MB memory capacity, equivalent to forty-four 3.5 inch floppy discs, and is concurrently capable of storing recorded still image, animation image, sound, music and other data.
The adapter card, Model MSAC-PC1, is capable of holding the flash memory card. Once the flash memory card is inserted into an adapter card, the flash memory card may then be used by inserting it into the PCMCIA slot of an ADP machine (PCMCIA is an association of companies that control and license a PC card standard). The adapter card measures 85.6 mm by 54 mm by 5 mm, and weighs 30 grams. You state that the adapter’s only function is to convert Sony’s flash memory card external “proprietary format” to the open format PCMCIA standard.
The flash memory card and adapter card will be imported: 1) separately; and 2) together as a set. The flash memory card will also be imported in a third manner: 3) without the adapter card, but with a video camcorder or digital still image camera.
Flash memory cards provide memory in a flexible and non-volatile form. They record data through semi-conductor technology rather than magnetic field or laser beam technology. They hold their contents without power, and retain recorded data indefinitely. Flash memory may be written upon and erased in fixed blocks, generally ranging from 512 bytes up to 256 KB. Absent an adapter card, or other connection, the flash memory card does not fit, and therefore, cannot be inserted into the PCMCIA slot of an ADP machine.
To write or record information on the flash memory card, the host device initiates and sends a command to the card. Through the controller chip located either in the host, or as in this case, on the card, this command applies a charge to the transistors on the flash memory card. This charge may be stored in the flash memory until it is erased by further command. Once the host device has recorded data in flash memory, the device can read and decode the information, and use it to perform its intended function.
You seek classification of the flash memory card under subheading 8542.50.00, HTSUS, currently subheading 8542.70.00, HTSUS, which provides for “[e]lectronic integrated circuits and microassemblies; parts thereof: Electronic microassemblies[.]” In the alternative, you claim it is classifiable under subheading 8523.90.00, HTSUS, which provides, in pertinent part, for “prepared unrecorded media[:] Other.” You claim that the adapter card is classifiable under subheading 8471.80.10, HTSUS, which provides for, in pertinent part, “[A]utomated data process machines and units thereof; …: Other units of automatic data processing machines: Control or adapter units.”
What is the classification of the Sony Flash Memory Stick and Flash Memory Adapter Card?
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 understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. Customs believes the ENs should always be consulted. See T.D. 98-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The HTSUS provisions under consideration 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:
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Prepared unrecorded media for sound recording or similar recording of other phenomena, other than products of chapter 37:
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Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders, junction boxes), for a voltage not exceeding 1,000V:
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8542 Electronic integrated circuits and microassemblies; parts thereof:
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We shall consider the classification of the subject goods in the following order: 1) the classification of each article separately: the flash memory card, and the flash memory adapter card; 2) the classification of the flash memory card and flash memory adapter card when packaged together; and 3) the classification of the flash memory card when entered as “additional media,” or memory, with a camcorder or digital camera.
Classification of Flash Memory Card and Flash Memory Card Adapter Imported Separately:
A) Flash Memory Card
At GRI 1, you claim that the goods are classifiable in heading 8542, HTSUS, as “Electronic microassemblies,” or alternatively, in heading 8523, HTSUS, which provides for “prepared unrecorded media.”
Chapter 85, Note 5, HTSUS, in pertinent part provides that, “[f]or the classification of the articles defined in this note, headings 8541 and 8542 shall take precedence over any other heading in the tariff schedule which might cover them by reference to, in particular, their function.” Thus, before considering heading 8523, we must first consider heading 8542, HTSUS.
You claim the flash memory card is classifiable under heading 8542, insofar as Chapter 85, Note 5(b), provides for it in its definition of “integrated circuits and microassemblies.” Chapter 85, Note 5(b) provides, “[f]or the purposes of headings 8541 and 8542: “[e]lectronic integrated circuits and microassemblies” include:
(iii) Microassemblies of the molded module, micromodule or similar types, consisting of discrete, active or both active and passive, components which are combined and interconnected.”
EN 85.42 (II) further describes microassemblies:
Microassemblies are made from discrete, active or both active and passive components which are combined and interconnected.
Discrete components are indivisible and are the basic electronic construction components in a system. They may have a single active electrical function (semiconductor devices defined by Note 5(A) to Chapter 85) or a single passive electrical function (resistors, capacitors, interconnections, etc).
However, components consisting of several electric circuit elements and having multiple electrical functions, such as integrated circuits, are not considered as discrete components.”
As noted above, the subject flash memory card contains four integrated circuits including an interface flash memory controller, and one circuit each for flash memory, flash memory reset, and noise protection. Based on the ENs descriptions, and absent evidence to the contrary, these four integrated circuits are not considered discrete components. As the purpose of each of the integrated circuits is different, each has a different electrical function. Thus, the flash memory card contains multiple integrated circuits having multiple electrical functions. The flash memory card is not a microassembly within the scope of heading 8542 because its composition takes it beyond the terms of the heading.
Sony notes that the flash memory card is used in a variety of host devices. The majority of these host devices are not ADP machines or apparatus. Documentation provided, and information obtained from Sony’s internet website, confirm that the flash memory card is used with MP3 players, video cameras, still digital cameras, global positioning systems, as well as ADP machines.
Heading 8523 provides eo nomine for “[p]repared unrecorded media for sound recording or similar recording of other phenomena, other than products of chapter 37[.]” EN 85.23 lists five types of media that are “included” within the heading. We interpret the word “include” to mean that the list provides examples of prepared unrecorded media. None of the examples either mention, or exclude, “flash” or “non-volatile” memory.
The terms, “prepared,” “unrecorded,” or “media,” are not more fully described. In the absence of a contrary legislative intent, tariff terms that are not defined in an HTSUS section or chapter note, or clearly described in an EN, are construed in accordance with their common and commercial meanings, which are presumed to be the same. Nippon Kogasku (USA), Inc., v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Dictionaries, scientific authorities, and other reliable lexicographic sources are often consulted; and, where the terms under consideration are technical in nature, appropriate technical sources of information should be consulted. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).
With respect to the terms “prepared,” “unrecorded,” and “media,” in heading 8523, the term “prepared” is described in Merriam-Webster’s Collegiate Dictionary, p. 920 (Tenth Ed., 1998), as “subjected to a special process or treatment[.]” The flash memory card is prepared with a controller, and placed in a molded card with electrical connectors for insertion into host devices.
The term “record” is defined as (1) A group of related fields that store data about a subject (master record) or activity (transaction record). A collection of records make up a file. (2) In certain disk organization methods, a record is a block of data read and written at one time without any relationship to records in a file.” The Computer Glossary, A. Freedman, p. 346 (Sixth Ed., 1993), and “to cause (as sound, visual images, or data) to be registered on something (as a disc or magnetic tape) in reproducible form[;]” and “something on which sound or visual images have been recorded[.]” Merriam-Webster’s Collegiate Dictionary, Id., at 977. The subject flash memory card has “unrecorded” memory upon which data may be stored, recorded in block, and retrieved in reproducible form.
The term “media” is described, as “a material that stores or transmits data,” in The Computer Glossary, Id., at 256, and as “a medium of cultivation, conveyance, or expression[,] in Merriam-Webster’s Collegiate Dictionary, Id., at 721.
EN 85.23 does not set limitations with regard to the manner in which the media, within the scope of heading 8523, must function. The feature or function common to all media, regardless of type, is that they function as an instrument on which phenomena may be stored or retrieved upon demand from a host machine. Heading 8523 provides eo nomine for “prepared unrecorded media,” and “an eo nomine designation, without limitation or a shown contrary legislative intent, judicial decision, or administrative practice, and without proof of commercial designation, will include all forms of the article.” Nootka Packing Co. v. United States, 22 CCPA 464, T.D. 47464 (1935); Crosse & Blackwell Co. v. United States, 36 CCPA 33, C.A.D. 393 (1948) and cases cited; T.M. Duche & Sons, Inc. et al. v. United States, 44 CCPA 60, C.A.D. 638 (1957). The flash memory card is in fact one of the latest forms of unrecorded storage media.
The subheading which describes the flash memory card is 8523.90.00, HTSUS, which provides for “[p]repared unrecorded media for sound recording or similar recording of other phenomena, other than products of chapter 37: Other.” Having established that the subject merchandise satisfies the terms provided in heading 8523, HTSUS, at GRI 1, consideration of any other headings is precluded.
B) Flash Memory PCMCIA Adapter Card:
You claim that the flash card adapter is classifiable under heading 8471, HTSUS, which provides, in pertinent part, for “automatic data processing machines and units thereof.” Legal Note 5(B) to chapter 84, HTSUS, provides guidance regarding units of automatic data processing machines. It states that "automatic data processing machines may be in the form of systems consisting of a variable number of separate units." A unit is to be regarded as a part of the complete system if it meets all of the following conditions:
(a) It is of a kind solely or principally used in an automatic data processing system; (b) It is connectable to the central processing unit whether directly or through one or more other units; and (c) It is able to accept or deliver data in a form (codes or signals) which can be used by the system.
The ENs for 84.71, - Automatic Data Processing Machines and units thereof, Part (I) (D) describe separately presented ADP units as follows:
This heading also covers separately presented constituent units of data processing systems. These may be in the form of units having a separate housing and designed to be connected, for example, by cables to other machines on a system, 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 parts (A) and (B) above as being parts of a complete system.
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(4) Control and adaptor units such as those to effect interconnection of the central processing unit to other digital processing machines or to groups of input or output units which may comprise visual display units, remote terminals, etc.
This category includes channel to channel adaptors used to connect two digital systems to each other.
(5) Signal converting units. At input, these enable an external signal to be understood by the machine, while at output, they convert the output signals that result from the processing carried out by the machine into signals which can be used externally.”
From the documentation submitted by Sony, it appears that the adapter card provides nothing more than an electrical connection for the flash memory card in an outer shell compatible with an ADP machine slot. The adapter card itself is unable to accept or deliver data in a form (codes or signals) which can be used by the ADP system. On the contrary, it is the flash memory stick that delivers or accepts encoded data or signals recorded on it, to or from an ADP machine. This occurs only once the adapter card with the flash memory card inside is inserted and connected to the ADP machine’s CPU, in conjunction with recognition software already loaded onto the hard drive of the ADP machine.
Control and adapter boards provided for in heading 8471, HTSUS, usually incorporate signal conversion or signal formatting functions (see HQ 951331, dated September 18, 1992, and HQ 952659, dated October 7, 1992, which modifies the former). None of the available evidence indicates that the adapter card is capable of providing or incorporating signal conversion, or signal formatting functions.
Heading 8536, HTSUS, specifically provides for “[e]lectrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders, junction boxes), for a voltage not exceeding 1,000 V.” The flash memory card and the card adapter are fitted with metal connector pins. When the flash memory card is inserted into the card adapter, and the card adapter is inserted into an ADP machine’s slot, the metal connector pins complete an electrical circuit. The completion of an electrical connection meets the heading’s description of “making connections to or in electrical circuits[.]” Thus, the card adapter is classifiable under heading 8536, HTSUS, specifically under subheading 8536.90.80, HTSUS, which describes “[e]lectrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits, for a voltage not exceeding 1,000 V. Other apparatus: Other[.]”
2) Flash Memory Card and Adapter Card Kit:
The flash memory card and adapter card are not classifiable under the same tariff heading. Thus, the kit containing both articles cannot be classified on the basis of GRI 1. GRI 3(a) indicates that when goods are classifiable in more than one heading, headings which refer to only part of the items put up for retail sale are to be regarded as equally specific. When, as in the present case, those headings each refer to only part of the materials contained in sets, they are treated as equally specific and classifiable pursuant to GRI 3(b). GRI 3(b) provides, in pertinent part, that “goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.”
EN (X) to GRI 3(b) states, that for a group of articles to qualify, as a set put up together for retail sale, they must meet the following three requirements:
consist of at least two different articles, which are, prima facie, classifiable in different headings.
consist of products or articles put up together to meet a particular need or carry out a specific activity; and
are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).
These two articles prima facie meet the criteria in GRI 3(b). First, the flash memory card is classifiable under heading 8523, HTSUS, and the adapter card, is classifiable under heading 8536, HTSUS.
Secondly, the articles are packaged together for the common purpose of providing flash memory, “prepared unrecorded media,” that may be used with ADP machines. Together the two goods carry out the specific activity of taking a flash memory card of one size and shape, and provide for its insertion into a slot of a different size and shape common to many ADP machines.
Thirdly, evidence provided shows that the goods are put up in a manner suitable for sale directly to consumers without the need to further repack them. Specifically, advertisements for the set on Sony’s internet website confirm the conditions of the kit’s retail sale. Under the instant facts, the articles meet all three criteria of the GRI 3(b) EN. Therefore, we conclude that at GRI 3(b), they form a set put up for retail sale.
At GRI 3(b) a set is classifiable according to the one article that gives the whole its “essential character,” insofar as this criterion is applicable. The ENs indicate that the characteristic which gives the set its “essential character” may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value or by the role of a constituent material in relation to the use of the goods.
The two articles are not of equal importance, use, or value. The flash memory card is the costlier of the two articles. Moreover, the flash memory card provides the memory that meets the need of the consumer, and establishes the essential character of the set at GRI 3(b). The set is, therefore, classifiable at subheading 8523.90.00, HTSUS, which provides for “[p]repared unrecorded media for sound recording or similar recording of other phenomena, other than products of chapter 37: Other.”
Flash Memory Card and Host Device:
Chapter 85, Note 6, HTSUS, provides that, “[r]ecords, tapes and other media of heading 8523 or 8524 remain classified in those headings when entered with the apparatus for which they are intended.” It also provides that, “[f]or the purposes 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.” In those cases in which Sony packages a flash memory card with a host device, e.g., a camcorder or digital camera, capable of recording or writing and erasing on it, the flash memory card will remain classifiable under heading 8523, HTSUS, as “prepared unrecorded media.”
At GRI 1, the flash memory card is classifiable in subheading 8523.90.00, HTSUS, which provides for “[p]repared unrecorded media for sound recording or similar recording of other phenomena, other than products of chapter 37: Other.” At GRI 1, the adapter card is classifiable in subheading 8536.90.80, HTSUS, which provides for “[e]lectrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders, junction boxes), for a voltage not exceeding 1,000V. Other apparatus: Other[.]”
At GRI 3(b), the flash memory card and flash memory adapter card, when packaged for retail sale, and entered together, constitute a set. The essential character
of this set is determined by the flash memory card, and is classifiable in subheading 8523.90.00, HTSUS, which provides for “[p]repared unrecorded media for sound recording or similar recording of other phenomena, other than products of chapter 37: Other.”
At GRI 1, the subject flash memory card when entered with a host device remains classifiable under subheading 8523.90.00, HTSUS.
John Durant, Director
Commercial Rulings Division