CLA-2 CO:R:C:M 956077 MBR
Mr. Ivan P. Koves
Program Manager
International Business Machines Corporation
P.O. Box 1900
Boulder, Colorado 80301-9191
RE: Reconsideration of HQs 084217, 084219 and 084647; Unfinished
Hard Disks for ADP Disk Drives; Not "Prepared" Unrecorded
Media
Dear Mr. Koves:
This is in reply to your letter of March 8, 1994, requesting
reconsideration of HQs 084217, 084219 and 084647, regarding the
classification of unfinished IBM hard disks for Automatic Data
Processing ("ADP") machine disk drives, under the Harmonized Tariff
Schedule of the United States (HTSUS).
FACTS:
International Business Machines Corporation ("IBM") currently
imports 18 separate types of disks for use in ADP hard disk drives.
These disks are imported in various stages of completion. However,
none are finished. In particular, none of the disks have been
"sputtered" with the substrate magnetic media necessary to retain
data, nor have they been surface burnished. These processes are
performed after importation.
ISSUE:
Whether the unfinished ADP hard disks are classifiable in
heading 8473, HTSUS, which provides for parts of ADP machines,
under heading 8523, HTSUS, which provides for prepared unrecorded
media, or under heading 7616, HTSUS, which provides for other
articles of aluminum?
-2-
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule. GRI 1
states, in pertinent part:
...classification shall be determined according to the terms
of the headings and any relative section or chapter notes...
You assert that the disks are classifiable in subheading
8473.30.50, HTSUS, which provides for parts of Automatic Data
Processing ("ADP") machines. Customs has addressed this issue in
HQ 084217, dated June 28, 1989, HQ 084219, dated July 7, 1989, and
HQ 084647, dated September 14, 1989.
Chapter 85, Legal Note 6, states as follows:
Records, tapes and other media of heading 8523 or 8524 remain
classified in those headings, whether or not they are entered
with the apparatus for which they are intended.
This Legal Note clearly directs that media, recorded and
unrecorded, shall be separately classifiable from the merchandise
for which it is intended. Therefore, media is not classifiable as
a part of the merchandise for which it is intended based on chapter
85, Legal Note 6. However, the instant disks are not "prepared"
media, as required by the terms of heading 8523, HTSUS, since none
of the disks have been "sputtered" with the substrate magnetic
media necessary to retain data. Therefore, chapter 85, Legal Note
6, does not apply.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes ("ENs")
may be utilized. The ENs, although not dispositive, should be
looked to for the proper interpretation of the HTSUS. See T.D. 89-
80, 54 FR 35127, 35128, (August 23, 1989). The ENs for heading
8523, HTSUS, page 1372, state:
The heading excludes:
(a) Articles intended for use as media for recording sound
or other phenomena but not yet prepared as such; these
are
classified in their respective headings (for example, in
Chapter 39 or 48, or Section XV).
This EN embodies the principle that unprepared media is not
classifiable in heading 8523, HTSUS, under GRI 2(a) regarding
"unfinished" goods, since it is not possible to classify
"unprepared" media as unfinished "prepared" media (i.e., it is self
evident that "unprepared prepared" media is a contradiction in
terms). This EN also embodies the principle that unprepared media
is not classifiable as a part of the merchandise for which it is
-3-
intended, but instead, is classifiable pursuant to its constituent
material.
Therefore, the disks are excluded from classification under
heading 8523, HTSUS, because they are not "prepared" unrecorded
media, as directed by the ENs, and are also excluded from
classification under heading 8473, HTSUS, based on the exclusionary
EN which directs classification pursuant to the constituent
material.
Thus, classification of the disks is appropriate pursuant to
its constituent material, in subheading 7616.90.00, HTSUS, which
provides for other articles of aluminum.
HOLDING:
The IBM unfinished ADP hard disks are classifiable in
subheading 7616.90.00, HTSUS, which provides for other articles of
aluminum. For the reasons stated above, HQs 084217, 084219 and
084647 are affirmed.
Sincerely,
Harvey B. Fox, Director