H302169

U.S. Customs and Border Protection HQ H302169 December 7, 2020 CLA-2 OT:RR:CTF:EMAIN H302169 SKK CATEGORY: Classification TARIFF NO.: 9027.50.40 Ms. Sarah M. Nappi Latham & Watkins LLP 555 Eleventh Street, N.W., Suite 1000 Washington, D.C. 20004-1304 RE: Request to reconsider NY N301117; Classification of monitor calibration kit Dear Ms. Nappi: This is in response to your correspondence of November 15, 2018 in which you request reconsideration of New York Ruling Letter (NY) N301117, dated November 2, 2018, and issued to you on behalf of your client, Datacolor, Inc. In NY N301117, U.S. Customs and Border Protection (CBP) classified two monitor calibration kits (“SpyderX Pro” and “SpyderX Elite”) under heading 9027, Harmonized Tariff Schedule of the United States (HTSUS), specifically subheading 9027.50.40, HTSUS, which provides for “[I]nstruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters); microtomes; parts and accessories thereof: Other instruments and apparatus using optical radiations (ultraviolet, visible, infrared): Other: Electrical.” No sample was submitted with your reconsideration request. In an email to this office dated December 3, 2020, you withdrew your request to discuss this matter per Section 177.4 of Title 19 of the Code of Federal Regulations (19 C.F.R. §177.4). For the reasons set forth below, we are affirming NY N30117. The articles at issue in NY N301117 are described as monitor color calibration kits, identified as the “SpyderX Pro” and “SpyderX Elite.” The kits are comprised of a colorimeter device and a universal serial bus (USB) flash drive loaded with Datacolor’s calibration software. The colorimeter and software function together to color calibrate a computer monitor to an industry color reference standard. To use the calibration kit, the Datacolor software is loaded onto a computer and the colorimeter is plugged into the computer’s USB port. The downloaded software guides the user through the calibration process. The colorimeter measures the output of the monitor and relays this information to the software program. The components of the SpyderX kits work in conjunction with one another to allow a user to calibrate their computer monitors. According to the information provided, the SpyderX Pro and SpyderX Elite kits differ from one another only in respect to the version of the Datacolor calibration software loaded onto the USB drive (the SpyderX Elite contains the software version with more advanced features than that of the SpyderX Pro). Classification under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods will 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 2 through 6 will then be applied in order. GRI 3(a) provides that “the heading which provides the most specific description shall be preferred to headings providing a more general description.” GRI 3(b) states, 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. GRI 3(c) provides that when goods cannot be classified by reference to GRI 3(a) or 3(b), they are to be classified in the heading that occurs last in numerical order among the competing headings that equally merit consideration. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The ENs to GRI 3(b) provide, in pertinent part: (VII) In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. (VIII) The factor which determines essential character will vary as between different kinds of goods. It 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 NY N301117, CBP determined that the Datacolor software and accompanying colorimeter constituted a kit for tariff classification purposes, packaged together to perform the specific function of calibrating a computer monitor by optically analyzing certain variables (luminance, brightness, white balance, color output, etc.). CBP determined that the software, if imported separately, was classified under heading 8523, HTSUS, specifically subheading 8523.51.00, HTSUS, which provides for “[D]iscs, tapes, solid-state non-volatile storage devices, "smart cards" and other media for the recording of sound or of other phenomena, whether or not recorded, including matrices and masters for the production of discs, but excluding products of Chapter 37: Semiconductor media: Solid-state non-volatile storage devices.” See Headquarter Ruling Letter (HQ) Hl68206 (March 12, 2014); NY N264692 (May 29, 2015), and; NY N214920 (May 7, 2012). CBP further determined that the colorimeter, if imported separately, was classified under subheading 9027.50.40, HTSUS. See NY 184843 (August 28, 2002). In NY N301117, CBP noted, “The Datacolor software does play an important role in the calibration process, guiding a user through the necessary steps and analyzing the data collected by the colorimeter. However, the calibration process does require the use of the colorimeter to measure the aforementioned variables to effectively perform the calibration activity.” For this reason, CBP determined that as neither the software nor the colorimeter components imparted the essential character to the monitor calibration kit, classification fell to subheading 9027.50.40, HTSUS, pursuant to GRI 3(c). In your request for consideration, you express agreement with CBP’s determination that the subject articles are kits for classification purposes. You also agree with CBP’s assessment that, if imported separately, the Datacolor software is properly classified under subheading 8523.51.00, HTSUS, and the colorimeter under subheading 9027.50.40, HTSUS. You disagree, however, with CBP’s determination that neither the Datacolor software nor the colorimeter impart the essential character to the subject calibration kits. Specifically, you argue that the software component imparts the essential character in accordance with GRI 3(b) and therefore classification of the kit is proper under subheading 8523.51.00, HTSUS. In support of this argument, you note the following: The software performs the calibration function for which a consumer would purchase this merchandise. Color calibration products are offered for sale in software-only formats (they rely on the user's own visual perception of the colors on the display monitor to provide input into the calibration function). The colorimeter cannot function without the software, but the software can be used for other related functions that do not require the colorimeter. A user typically performs hardware calibration using the colorimeter approximately once per month, b

(for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters); microtomes; parts and accessories thereof: Other instruments and apparatus using optical radiations (ultraviolet, visible, infrared): Other: Electrical.” No sample was submitted with your reconsideration request. In an email to this office dated December 3, 2020, you withdrew your request to discuss this matter per Section 177.4 of Title 19 of the Code of Federal Regulations (19 C.F.R. §177.4). For the reasons set forth below, we are affirming NY N30117.The articles at issue in NY N301117 are described as monitor color calibration kits, identified as the “SpyderX Pro” and “SpyderX Elite.” The kits are comprised of a colorimeter device and a universal serial bus (USB) flash drive loaded with Datacolor’s calibration software. The colorimeter and software function together to color calibrate a computer monitor to an industry color reference standard. To use the calibration kit, the Datacolor software is loaded onto a computer and the colorimeter is plugged into the computer’s USB port. The downloaded software guides the user through the calibration process. The colorimeter measures the output of the monitor and relays this information to the software program. The components of the SpyderX kits work in conjunction with one another to allow a user to calibrate their computer monitors. According to the information provided, the SpyderX Pro and SpyderX Elite kits differ from one another only in respect to the version of the Datacolor calibration software loaded onto the USB drive (the SpyderX Elite contains the software version with more advanced features than that of the SpyderX Pro). Classification under the HTSUS is in accordance with the General Rules o