CLA-2 RR:CR:GC 964875 BJB

Jennifer F. Kessinger
Worldtrade Management Services
PricewaterhouseCoopers LLP
333 Market Street
San Francisco, CA 94105

RE: SanDisk flash memory cards: CompactFlash; SmartMedia; MultiMedia; and Secure Digital Memory.

Dear Ms. Kessinger:

This is in response to your letter of August 30, 2001, on behalf of your client, “SanDisk Corporation” (“SanDisk”), requesting a ruling on the classification of “non-volatile” or “flash memory” cards, pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). In your letter, you also asked that an earlier ruling request, dated October 18, 2000, submitted by a customs broker, on behalf of SanDisk, and related to similar merchandise, be withdrawn. We regret the delay in responding.


The articles are identified as “flash memory cards.” They are SanDisk’s:

CompactFlash Card (“CF”); SmartMedia Card (“SM”); MultiMedia Card (“MM”); and Secure Digital Memory Card (“SDM”).

Flash memory cards provide memory in a flexible and non-volatile form. These cards hold their contents without power. They retain recorded data indefinitely. Flash memory may be written upon and erased in fixed blocks, generally ranging from 512 bytes up to 256 KB. The flash memory cards use the PCMCIA PC Card format, and are compatible with a range of host devices to store pictures, music, and data. Flash memory cards record data through semi-conductor technology rather than, e.g., magnetic field or laser beam technology. Flash memory retains information in a series of transistors, or cells, located on the card’s silicon chip.

To write or record information on the flash memory card, the host device initiates and sends a command to the card. Through a controller chip located either in the host, or on the card, this command applies a charge to the transistor. The charge is permanently stored until it is erased. The user’s ability to erase or record entire “blocks” of information in flash memory is a major advantage of the flash memory cards.

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. A single flash memory card is capable of having multiple types of data files recorded upon it, enabling multiple applications to be run, by multiple types of host devices.

There are two types of the CompactFlash Card (CF card), Type I, original form factor, and Type II, a later type, form factor. In Type I, the CF card measures 42.8 mm x 36.4mm x 3.3 mm, about the size of a matchbook. The Type II CF card is 5 mm thick. The other dimensions remain the same, however, Type II also has more memory capacity. Thus, Type II provides up to 300 megabytes of formatted flash memory, and Type I provides up to 192 megabytes. In the Type II form factor, CF cards may be incorporated into a “CompactFlash” slot, for use with pagers, networking systems, and fax and modems.

The CF cards are used for digital cameras, handheld ADP machines, personal digital assistants (“PDAs”), personal communicators/pagers, audio recorders/MP3s, and global positioning devices (“GPS”).

2) The SmartMedia Card (SM), is approximately 45mm x 37mm x 0.76 mm. It is comprised of a plane electrode connected to a flash memory chip by bonding wires. These are embedded in a resin using a technique called over-molded thin package. The SM card can be purchased in a range of flash memory capacity from 8 to 32 megabytes.

3) The MultiMedia Card (MM) is smaller in size, measuring 32.0 mm x 24.0 mm x 1.4 mm. It weighs approximately 1.5 grams, and is available with memory capacities of 8, 16, 32, or 64 megabytes. It is smaller in size and used for compact electronic devices such as mobile telephones, pagers, voice recorders, digital audio players, digital cameras, multimedia devices, digital video recorders, and handheld global positioning devices.

4) The Secure Digital Memory Card (SDM) is 32 mm x 24 mm x 2.1mm. It is slightly thicker than a MultiMedia Card. This enables it to contain more memory for higher data capacity. It is designed and used for the same purposes as the MM card but has additional features, including: cryptographic security for protection of copyrighted data, a quadrupled maximum data transfer rate, a user-selectable write protect switch on the card casing, and improved electro-static discharge (“ESD”) tolerance through changes in the card’s protective casing. This card allows the host device to store and read data from flash memory in a way that is fully compatible with the licensing restrictions that may be imposed by an original source distributor.


What is the classification of the flash memory cards?


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:

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:

( ( ( ( ( ( (

8473 Parts and accessories (other than covers, carrying cases and the like) suitable for use solely or principally with machines of headings 8469 to 8472:

( ( ( ( ( ( (

Prepared unrecorded media for sound recording or similar recording of other phenomena, other than products of chapter 37:

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Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter, parts thereof:

( ( ( ( ( ( (

At GRI 1, prima facie, there are several headings that may provide for the subject flash memory cards. Heading 8471, HTSUS, provides for “[a]utomatic data processing machines and units thereof[;]” heading 8473, HTSUS, provides for “[p]arts and accessories . . . suitable for use solely or principally with machines of headings 8469 to 8472[;]” heading 8523, HTSUS, “[p]repared unrecorded media for sound recording or similar recording of other phenomena, other than products of chapter 37[;]” and heading 8543, HTSUS, which provides for “[e]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter, parts thereof[.]”

Proceeding in numerical order, we consider heading 8471, which provides for “[c]ontrol or adapter units for ADP machines,” and heading 8473, which provides for “[p]rinted circuit assemblies for ADP machines[.]”

Chapter 84, Note 5(B) provides that, “[a]utomatic data processing machines may be in the form of systems consisting of a variable number of separate units[,]” subject to Note 5(E). Subject to the terms of Chapter 84, Legal Note 5(E), an article is regarded as being a part of a complete system “if it meets all of the following conditions:

It is of a kind solely or principally used in an automatic data processing system; It is connectable to the central processing unit either directly or through one or more other units; and It is able to accept or deliver data in a form (codes or signals) which can be used by the system.”

While the flash memory cards may be used as additional memory, or interactively, with certain computer laptops and ADP machines, SanDisk represents that they are used in a variety of host devices, the majority of which are not ADP machines or apparatus. Specifically, documentation you have provided, and further information obtained directly from SanDisk’s internet website, confirm that all of the flash memory cards are used with a wide array of machines, including MP3 players, video cameras, still digital cameras, global positioning systems, as well as ADP machines.

Thus, although these flash memory cards may be used in conjunction with ADP machines, they all fail to meet the requirements of Chapter 84, Legal Note 5(B), insofar as they are not solely or principally used in an ADP system. As such, they may not be considered as units, or as parts or accessories of an ADP machine, and are not classifiable under headings 8471 or 8473, HTSUS.

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.

Further, 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 cards are prepared with flash memory chips, and placed in molded cards with electrical connectors for ready 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. All of the flash memory cards have “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 cards are in fact one of the latest forms of unrecorded storage media.

Flash memory cards also often contain an integrated circuit called a “controller chip.” This controller works electronically with the host device to ensure detection of bits in memory that have failed or are likely to fail due to the number of erase and write cycles such bits have undergone. This process allows the host with the controller to identify and write data to the spare “good” bits still remaining in the flash memory. This defect control appears to occur only when the flash memory card is inserted into a host device, and only when the host device is actively recording data to or erasing data from the flash memory. The controller chip function is similar to a “file allocation table” used on a magnetic floppy disk. The controller chip deals only in digital data and performs the mapping of the flash memory card for use by the host machine. Although SanDisk did not provide documentation as to which of its flash memory cards contain a controller chip, we find that, in the subject merchandise, the presence or absence of a controller chip does not change the basic storage repository function of the cards.

Heading 8543, HTSUS, provides for “[e]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter, parts thereof[.]” EN 85.43 also provides that the “heading covers all electrical appliances and apparatus, not falling in any other heading of this Chapter, nor covered more specifically by a heading of any other Chapter of the Nomenclature, nor excluded by the operation of a Legal Note to Section XVI or to this Chapter.” (Emphasis in the original). EN 85.43 lists types of electrical machines and apparatus that are included within the heading. In particular, EN 85.43(14) provides,

“Proximity cards or tags and electronic proximity cards/tags, which may or may not have a magnetic stripe. Proximity cards/tags usually consist of an integrated circuit with a read only memory, which is attached to a printed antenna. The card/tag operates by creating a field interference (the nature of which is determined by a code contained in the read only memory) at the antenna in order to affect a signal transmitted from, and reflected back to, the reader. This type of card/tag does not transmit data.

Electrostatic proximity (ESP) cards/tags usually consist of a coil which is activated by a signal from a reader and produces a voltage to power a microcircuit, a code generator which on receiving a signal from the coil generates data, and a signal transmission antenna.”

While the proximity cards described here have “read only” memory capability, the subject flash memory cards are not “read only” memory devices. In contrast to the proximity cards described in EN 85.43 (14), encoded music and pictures, and other data, may be transmitted to, read, written, and erased, back and forth from the subject flash memory cards to an array of host devices. Further, as discussed above, the instant flash memory cards are specifically provided for as “media” of heading 8523, and are therefore, not classifiable in heading 8543, HTSUS..

The subheading which describes the flash memory cards 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, and Chapter 85, Note 6, consideration of any other headings is precluded.

HOLDING: At GRI 1, the flash memory cards are 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.”


John Durant, Director
Commercial Rulings Division