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HQ 963170

June 5, 2002

CLA-2 RR:CR:GC 963170 BJB


TARIFF NO.: 8520.90.00

Mr. Peter Weinrauch
Import Commodity Group Ltd.
131 East Merrick Road, 2nd Floor
Valley Stream, NY 11580

RE: MP3 Music Recorder/Player Set; Internal flash memory

Dear Mr. Weinrauch:

This is in response to your letter of August 9, 1999, on behalf of Audiovox Corporation (“Audiovox”), requesting the classification of an “MP3 recorder/player,” Model MP-1000, CD software, owner’s manual, hand carrying strap, USB cable, earphones, and two AAA batteries, under the Harmonized Tariff Schedule of the United States (HTSUS). A sample MP3 recorder/player and earphones were submitted. We regret the delay in responding.


The Audiovox MP3, Model MP-1000, recorder/player, CD software, owner’s manual, hand carrying strap, USB cable, earphones, and two AAA batteries, are packaged together and advertised for retail sale.

The MP3 recorder/player, also described as an “Internet Music Recorder,” uses the Moving Picture Experts Group’s (“MPEG-3”) file format that compresses audio files. This audio file compression enables music to be downloaded from the Internet, or audio CDs, at an accelerated rate while minimizing the amount of memory required. Compressed audio data files are transferred from an ADP machine and recorded into the MP3 recorder/player’s (“MP3”) internal flash memory. MP3 audio files may also be recorded from an ADP machine onto a portable flash memory card and inserted into the MP3’s flash memory card slot.

The MP3 has 32 MB of internal flash memory and a slot for inserting a flash memory card for additional memory. It measures 63.4 mm by 83 mm by 18.3 mm, weighs 56 grams, and has an audio jack to connect earphones. The MP3 also has an LCD screen for playing status, with standard forward, reverse, play, stop, and pause control buttons. A USB cable compatible connector is located on the left side edge, and a compartment for two batteries (depending on the model) is located at the base of the back side.

In general, an MP3 has a microprocessor, a “digital signal processor chip” (“DSP chip”), digital-to-analog converter, and an amplifier. The microprocessor monitors the recorded audio files through the playback controls, displays information about the music playing, and sends directions to the DSP chip to instruct it exactly how to process the audio signal. The DSP chip pulls the MP3 audio files recorded in the flash memory, runs a decompression algorithm, that undoes the MP3 audio file compression. The digital-to-analog converter turns the bytes back into waves, and the amplifier boosts the strength of the signal, sending it to the audio port where the earphones are connected. See www.howstuffworks.com/mp3-player.


(1) Is the MP3 classifiable in heading 8519, HTSUS, as “other sound reproducing apparatus, not incorporating a sound recording device[,]” or in heading 8520, HTSUS, as “other sound recording apparatus, whether or not incorporating a sound reproducing device” ? (2) What is the classification of the MP3 recorder/player, the CD software, owner’s manual, hand carrying strap, USB cable, earphones, and two AAA batteries, imported together, under the HTSUS?


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. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). At GRI 1, heading 8519, HTSUS, provides for “[t]urntables, record players, cassette players and other sound reproducing apparatus, not incorporating a sound recording device[.]” EN 85.19 notes that the heading covers all sound reproducing apparatus. It further provides that “[b]roadly speaking, the main constituent parts of a sound reproducer are a sound-head, a mechanism for displacing the sound-head in relation to the recording (or vice versa) and sometimes a system for producing sound-waves.” We agree that the MP3 player has comparable components for sound reproduction, including a microprocessor, DSP chip, digital-to-analog converter, and amplifier. The MP3’s microprocessor allows a listener to select recorded audio files via the playback controls, the DSP chip decompresses the MP3 audio files, the converter decodes the signals into audio-waves, and the amplifier boosts the signal to an audible level.

However, heading 8519 excludes devices that record sound. We turn to consideration of heading 8520, HTSUS, to determine if the MP3 device can record sound.

Heading 8520, provides for “[m]agnetic tape recorders and other sound recording apparatus, whether or not incorporating a sound reproducing device[.]” EN 85.20 indicates that the “heading covers all sound recording apparatus, whatever the purpose for which it is intended . . . [and] also includes sound recording apparatus, incorporating a sound reproducing device.”

The issue presented is whether or not the transfer and storage of MP3 format audio files from an ADP machine, or other source, into the MP3’s internal flash memory constitutes “recording” provided for under heading 8520, HTSUS.

Customs has addressed the definition of the term “record,” when it classified a number of portable flash memory cards as “prepared unrecorded media” under subheading 8523.90.00, HTSUS. See HQ 962507, dated May 22, 2002; HQ 964875, dated March 27, 2002; and HQ 962845, dated February 27, 2002. Citing common and commercial meanings, Customs noted that Merriam-Webster’s Collegiate Dictionary, (Tenth Ed., 1998, at p. 977), defined the term “record” 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.” Further, Customs determined that “to record” is “to cause (as sound, visual images, or data) to be registered on something (as a disc or magnetic tape) in reproducible form[;] (The Computer Glossary, A. Freedman, p. 346 (Sixth Ed., 1993)); and “something on which sound or visual images have been recorded[.]” Merriam-Webster’s Collegiate Dictionary, supra., at 977. Flash memory cards in these cases were held to be prepared “unrecorded” media upon which data may be recorded in block and retrieved in reproducible form. Similarly, internal flash memory in MP3 players is recording media.

EN 85.20 further provides that, “[t]he term ‘sound recording apparatus’ means apparatus which, on receiving a suitable audio-frequency vibration generated by a sound-wave, so modifies a recording medium as to enable it to be used subsequently to reproduce the original sound-wave. Broadly speaking, a sound recording apparatus, comprises a device which modifies the recording medium, and a mechanism which moves this device in relation to the recording medium.”

In reference to EN 85.20, the MP3 is recent technology, and while it does not receive an “audio-frequency vibration generated by a sound-wave,” it does receive a digital equivalent. The microprocessor is the apparatus that interacts with the audio files to modify the memory. The DSP chip is the mechanism that interacts with the microprocessor to activate the audio file from that recorded medium. Finally, the signal converter turns the accessed file into audio sound waves. Taken together, these devices make the MP3 player a sound recording apparatus within the meaning of the EN.

At GRI 1, the MP3 is both a “sound reproducing” and a “sound recording” apparatus, classifiable under subheading 8520.90.00, HTSUS, which provides for “[m]agnetic tape recorders and other sound recording apparatus, whether or not incorporating a sound reproducing device: Other[.]”

The other articles are each described under a different heading. As such they cannot be classified according to GRI 1. Heading 4901, provides, in pertinent part, for printed books, brochures . . . and similar printed matter. Heading 6307, provides, in pertinent part, for other made up articles. Heading 8506, provides, in pertinent part, for primary cells and primary batteries. Heading 8518, provides, in pertinent part, for microphones, . . . loudspeakers, . . . and headphones and earphones, whether or not combined with a microphone. Heading 8524, provides, in pertinent part, for other recorded media for sound or other similarly recorded phenomena. Heading 8544, provides, in pertinent part, for insulated cable, whether or not fitted with connectors.

GRI 2(a) is also not applicable, however GRI 2(b) provides, in pertinent part, that “[t]he classification of goods consisting of more than one material or substance shall be according to the principles of Rule 3.”

GRI 3 provides, “when, by application of Rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

Mixtures, composite goods consisting of different materials or made up of different components, and 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.”

The EN to GRI 3(b) indicates that to meet the criteria of a set put up together for retail sale, “articles must:
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).”

Applying the GRI 3(b) EN criteria, these several different articles are, prima facie, classifiable in different headings. The articles work together to carry out the specific activity of downloading and recording audio files from another audio source onto the MP3’s internal flash memory for retrieval and replay.

The MP3 is imported and packaged together for direct sale with the earphones, USB cable, printed owner’s manual, CD software, two batteries, and a hand carrying strap. This is confirmed by the printed owner’s manual, and advertisements for the set provided on Audiovox’s Internet website. Under these facts, the articles meet all three criteria of the GRI 3(b) EN, and therefore, form a set put up for retail sale.

To be classified at GRI 3(b), the set must be classifiable as if the set consisted of the one article that gives the whole its “essential character,” insofar as this criterion is applicable. EN VIII to GRI 3(b) provides that the characteristic which gives a 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.

In this case, the CD software (classifiable in heading 8524), the USB cable (classifiable in heading 8544), earphones (classifiable in heading 8518), and the MP3 recorder/player (classifiable in heading 8520), all support transferring and recording music files to the MP3 for listening. It is clear that the MP3 is the most important article in achieving this central purpose. The MP3 is also the most valuable article, financially from the manufacturer’s perspective, in terms of marketability for the importer, and in terms of utility for the consumer. As such, we conclude that the MP3 imparts the “essential character” of the set. At GRI 3(b) we find that the MP3 recorder/player set is described in subheading 8520.90.00, HTSUS, which provides for “[m]agnetic tape recorders and other sound recording apparatus, whether or not incorporating a sound reproducing device: Other[.]”

Chapter 85, Legal 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.” However, the note “does not apply to such media when they are entered with articles other than the apparatus for which they are intended.” The CD software is for use in an ADP machine. However, it is packaged with, and part of, the MP3 set. Therefore, because the CD software is entered with articles other than the apparatus for which it is intended, at GRI 3(b), it is classifiable with the MP3 set under subheading 8520.90.00, HTSUS.


At GRI 3(b), the Audiovox MP3 recorder/player, CD software, owner’s manual, hand carrying strap, USB cable, earphones, and batteries are a set classifiable in subheading 8520.90.00, HTSUS, which provides for “[m]agnetic tape recorders and other sound recording apparatus, whether or not incorporating a sound reproducing device: Other[.]”


John Durant, Director
Commercial Rulings Division

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