HQ 0951432 - Protest No. 3901-91-100227; Hitachi Ltd; Magnetic Bubble Memory; No Principal Use; Electrical Machine N.S.P.F. - United States International Trade Commision Rulings

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HQ 951432

July 9, 1992

CLA-2 CO:R:C:M 951432 MBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 8543.80.90

District Director
U.S. Customs Service
610 South Canal Street
Chicago, Illinois 60607

RE: Protest No. 3901-91-100227; Hitachi Ltd; Magnetic Bubble Memory; No Principal Use; Electrical Machine N.S.P.F.

Dear Sir:

This is our response to Protest Number 3901-91-100227, dated February 26, 1991, and application for further review, regarding the classification of "Magnetic Bubble Memory," under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The imported merchandise consists of "Magnetic Bubble Memories." The submitted literature states that Hitachi magnetic bubble memories are used as file memory in a wide variety of applications such as CNC machines (computer numerical control), electronic switching systems, ECR/POS, PBX, portable computers, robots, and measuring instruments. The Hitachi magnetic bubble memory is incorporated in a wide variety of boards, cassettes, bubble disks and kits to meet customer demands for a wide range of applications. The bubble memory is a rewritable, non-volatile memory with no moving parts. The memory is retained even when the power is turned off. The bubble memories are comprised of gallium, gadolinium and garnet (GGG) magnetized wafers. The substrates are assembled together in the form of a sandwich.

The Computer Glossary, by Alan Freedman (1989) defines "bubble memory as follows: "[b]ubble memory is a technology that combines both semiconductor and magnetic recording methods to create a solid state storage device. Like disk and tape, bubble memory holds its contents without power and is about as fast as a slow hard disk. It's used in equipment designed for rugged, heavy duty applications. Conceptually, bubble memory can be thought of as a stationary disk whose bits spin instead of the disk. Bubble memory units are only a couple of square inches in size and contain a thin film magnetic recording layer. The bits, called bubbles because of
their globular shape, are electromagnetically generated in circular strings inside this layer. In order to read or write the bubbles, the strings of bubbles are made to rotate past the equivalent of a read/write head in a disk or tape drive."

ISSUE:

What is the classification of magnetic bubble memories with no principal use, under the Harmonized Tariff Schedule of the United States (HTSUS)?

LAW AND ANALYSIS:

The Hitachi magnetic bubble memories at issue are utilized as memory in a wide variety of applications. There is no information regarding the principal use of the bubble memories in any one type of application. They are also not dedicated by their design to any one type of application. The bubble memories are prima facie classifiable in a number of headings. However, many of those classifications would require a principal use with a specific type of merchandise. There is no such principal use, as defined in the Additional U.S. Rules of Interpretation 1(a), which states:

1. In the absence of special language or context which otherwise requires--

(a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.

The protestant argues that bubble memories are hybrid integrated circuits classifiable in subheading 8542.20.00, HTSUS. The Legal Notes to chapter 85 require the following in order to be classifiable under the provision for hybrid integrated circuits:

5. For the purposes of headings 8541 and 8542:

(b) "Electronic integrated circuits and microassemblies" are:

(ii) Hybrid integrated circuits in which passive elements (resistors, capacitors, interconnections, etc.) obtained by thin- or thick-film technology and active elements (diodes, transistors, monolithic integrated circuits, etc.) obtained by semiconductor technology, are combined to all intents and purposes indivisibly, on a single insulating substrate (glass, ceramic, etc.). These circuits may also include discrete components.

Representatives of Hitachi Ltd. state that the instant merchandise does not contain any active elements. Therefore, the magnetic bubble memories are not classifiable in heading 8542, HTSUS.

Upon importation, the bubble memories were classified in subheading 8543.80.90, HTSUS, which provides for: "[e]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter: [o]ther machines and apparatus: [o]ther." The importer argues that the bubble memory "contains no moving parts and therefore cannot be considered to be a finished electrical product or apparatus...." However, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) to heading 8543, page 1402, in pertinent part state:

Most of the appliances of this heading consist of an assembly of electrical goods or parts (valves, transformers, capacitors, chokes, resistors, etc.) operating wholly electrically. However, the heading also includes electrical goods incorporating mechanical features provided that such features are subsidiary to the electrical function of the machine or appliance.

There is no requirement that there be "moving parts" present for classification in heading 8543, HTSUS. As the ENs delineate, heading 8543 may include mechanical features, provided that they are subsidiary. Therefore, the Hitachi magnetic bubble memories are classifiable in subheading 8543.80.90, HTSUS.

HOLDING:

The Hitachi magnetic bubble memories are classifiable as entered in subheading 8543.80.90, HTSUS, which provides for: "[e]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter: [o]ther machines and apparatus: [o]ther."

The protest should be denied in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

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