HQ 0089268 - Protest number 2501-0-000141; base plate assembly; data cartridge; Subheading 8473.30.40; Heading 8523; GRI 1; Chapter 85, note 6; HQ 087299; HQ 087204; HQ 088229; GRI 2(a); GRI 2(b); GRI 3; GRI 3(a); GRI 3(b); composite good; GRI 3(b), EN (VIII); APF Electronics Inc. v. United States. - United States International Trade Commision Rulings

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HQ 089268

December 10, 1991

CLA-2 CO:R:C:M 089268 AJS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7616.90.00

District Director
U.S. Customs Service
880 Front Street
Room 5-S-9
San Diego, CA 92188

RE: Protest number 2501-0-000141; base plate assembly; data cartridge; Subheading 8473.30.40; Heading 8523; GRI 1; Chapter 85, note 6; HQ 087299; HQ 087204; HQ 088229; GRI 2(a); GRI 2(b); GRI 3; GRI 3(a); GRI 3(b); composite good; GRI 3(b), EN (VIII); APF Electronics Inc. v. United States.

Dear District Director:

Protest for further review number 2501-0-000141 dated 12/21/90, was filed against the classification of a base plate assembly (BPA) within subheading 7616.90.00, Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The BPA consists of an aluminum base plate with metal and/or plastic tape guides, rollers, pins, hubs and a mirror. After importation, recording media, belts and a plastic covering will be added to produce a data cartridge. This cartridge is used to down-load and store information contained on the hard drive of an automatic data processing machine.

ISSUE:

Whether the subject BPA is properly classifiable within subheading 7616.90.00, HTSUS, which provides for "other" articles of aluminum; or classifiable within subheading 8473.30.40, HTSUS, which provides for parts and accessories of the machines of
heading 8471 not incorporating a cathode ray tube; or classifiable within heading 8523, HTSUS, which provides for prepared unrecorded media.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1 states in part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . and according to the following provisions . . ."

Heading 8523, HTSUS, provides for prepared unrecorded media for sound recording or similar recording of other phenomena. Media of this heading remain classified in this heading, whether or not they are entered with the apparatus for which they are intended. Chapter 85, note 6. A complete data cartridge satisfies the terms of this heading. The subject BPA is a part used solely for making a complete data cartridge. However, no subheading exists for parts of the articles of this heading. Therefore, the BPA cannot be classified within heading 8523, HTSUS, as a part.

Heading 8473, HTSUS, provides for parts and accessories suitable for use solely or principally with the machines of headings 8469 to 8472. The protestant claims that the subject BPA is classifiable as an accessory within this heading. However, the BPA is not used solely or principally with any of the machines of this heading. As stated previously, the BPA is used solely with the unrecorded media of heading 8523, HTSUS. Accordingly, the subject BPA is not classifiable within heading 8473, HTSUS.

In HQ 087299 (8/3/90), Customs addressed the classification of similar articles (i.e., floppy diskette clamshells). See HQ 087204 (8/3/90) and HQ 088229 (2/14/91) for rulings on similar merchandise. In HQ 087299, we also rejected the classification of this type of merchandise within heading 8473, HTSUS, for similar reasons. The protestant claims that these rulings are not applicable in this instance because the BPA itself is a "machine". In the above rulings, we stated that finished magnetic media and micro floppy diskettes are not "machines", but either "equipment" or "apparatus". The courts have stated that in order to be a "machine", an article must have some moving parts and must utilize, apply, or modify force, or be used for the translation of motion. APF Electronics Inc. v. United States, 82 Cust. Ct. 25 (1979). The BPA does not satisfy this
description, it is an unfinished cartridge principally used to house media. Accordingly, we do not view the BPA as a "machine". Furthermore, we would also not view the completed cartridge as a "machine".

GRI 2(a), one of the "following provisions" mentioned in GRI 1, states that any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. The subject BPA does not have the essential character of prepared unrecorded media because it does not possess any tape (i.e., the essential element of media). Accordingly, the BPA is not an unfinished article of heading 8523, HTSUS.

In HQ 087299, we stated that since these types of articles cannot be classified as a part, they must be classified according to their constituent material. GRI 2(b) states that any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. Heading 7616, HTSUS, provides for articles of aluminum. Heading 3926, HTSUS, provides for articles of plastic. The BPA is made of aluminum and plastic. Goods consisting of more than one material or substance shall be classified according to GRI 3.

GRI 3(a) states that when two or more headings each refer to part only of the material or substance contained in mixed or composite goods, those headings are to be regarded as equally specific in relation to those goods. The subject BPA satisfies this description. Heading 7616, HTSUS, refers only to the aluminum component and heading 3926, HTSUS, only to the plastic component. Accordingly, these two headings are equally specific in relation to the classification of the BPA.

Composite goods consisting of different materials, which cannot be classified by reference to GRI 3(a), shall be classified as if they consisted of the material which gives them their essential character. GRI 3(b). As stated previously, the BPA is a composite good consisting of plastic and aluminum. Essential character may be determined by the value of the materials of the composite good. GRI 3(b), Explanatory Note (VIII). In this case, the aluminum gives the BPA its essential character based on its value. Accordingly, the BPA is classifiable within heading 7616, HTSUS. More specifically, it is described within subheading 7616.90.00, HTSUS, which provides for "other" articles of aluminum.

HOLDING:

The subject BPA is classifiable within subheading 7616.90.00, HTSUS, which provides for "other" articles of aluminum. You should deny the protest 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,

John Durant, Director
Commercial Rulings Division

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