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HQ 957965




October 11, 1995

CLA-2 R:C:M 957965 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 8524.90.40

Ms. Margaret Noble
Perfect Data
110 West Easy Street
Simi Valley, CA 93065-1689

RE: CD Lens Cleaner; Accessory for Computer; Accessory for CD player; Accessory for Video Games; Compact Disk; Brushes; Composite Good; Essential Character; GRI 3(b); Legal Note 6 to Chapter 85; Headings 8473, 8522, 9504, 8524, 9603; HQs 087704, 950925, 952154, 956490, 956960; DD 807509, revoked

Dear Ms. Noble:

In a letter dated May 9, 1995, you requested reconsideration of DD 807509, issued on March 30, 1995, by Customs in Nogales, Arizona, in which the tariff classification of a compact disk (CD) Lens Cleaning System was determined under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was referred to this office for a response. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057)(1993), notice of the proposed revocation of DD 807509 was published on September 6, 1995, in the Customs Bulletin, Volume 29, Number 36. One comment which agrees with the proposal, was received in response to the notice.

FACTS:

The merchandise, labeled as a compact disk (CD) Lens Cleaning System, consists of a CD with two, small precision-engineered lens cleaning brushes (measuring 1/8" long and 5/16" long), a storage case, and instructions for use. The CD with the attached brushes is placed in a CD player or CD-ROM (compact disk-read only memory) drive to remove impairing debris from the optical lens within the player or drive.

In DD 807509, issued on March 30, 1995, Customs in Nogales, Arizona, classified the CD Lens Cleaning System under subheading 8522.90.75, HTSUS, which provides for parts and accessories of apparatus of headings 8519 to 8521, HTSUS. You claim that the CD Lens Cleaning System should be classified under subheading 8473.30.50, HTSUS, as parts and accessories of headings 8469 to 8472, HTSUS. In the process of researching this issue, we found that the subject merchandise can also be used to clean CD-ROM video games.

ISSUE:

Is the CD Lens Cleaning System classifiable as an accessory to computers under heading 8473, as an accessory to a CD player under heading 8522, as an accessory to a video game under heading 9504, or elsewhere under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

The subheadings under consideration are as follows:

8473.30.50: Parts and accessories (other than covers, carrying cases and the like) suitable for use solely or principally with machines of headings 8469 to 8472: Parts and accessories of the machines of heading 8471:
Not incorporating a cathode ray tube:
[o]ther: [o]ther. . . . .

Goods classifiable under this provision have a general, column one rate of duty of free.

8522.90.75: Parts and accessories of apparatus of headings 8519 to 8521: [o]ther:
[o]ther:[o]ther. . . .

Goods classifiable under this provision have a general, column one rate of duty of 3.5 percent ad valorem.

9504.10.00: Articles for arcade, table or parlor games, including pinball machines, bagatelle, billiards and special tables for casino games; automatic bowling alley equipment; parts and accessories thereof: Video games of a kind used with a television receiver and parts and accessories thereof. . . .

Goods classifiable under this provision have a general, column one rate of duty of free.

8524.90.40: Records, tapes and other recorded media for sound or other similarly recorded phenomena, including matrices and masters for the production of records, but excluding products of chapter 37: [o]ther: [o]ther. . . . .

Goods classifiable under this provision have a general, column one rate of duty of 7.8 cents per square meter of recording surface.

9603.50.00: Brooms, brushes (including brushes constituting parts of machines, appliances or vehicles), hand-operated mechanical floor sweepers, not motorized, mops and feather dusters; prepared knots and tufts for broom or brush making; paint pads and rollers; squeegees (other than roller squeegees): [o]ther brushes constituting parts of machines, appliances or vehicles. . . .

Goods classifiable under this provision have a general, column one rate of duty of 2.7 percent ad valorem.

You indicate that because your products are sold to the computer industry, the subject merchandise should be classifiable under heading 8473, HTSUS, as parts and accessories for computers. The CD Lens Cleaning System is not considered a "part" as it is not a necessary component needed for the functioning of a CD player or CD-ROM drive.

In HQ 087704, dated September 27, 1990, this office considered the classification of "accessories" under the HTSUS, and stated as follows:

The term "accessory" is not defined in either the tariff schedule or the Explanatory Notes. An accessory is generally an article which is not necessary to enable the goods with which it is used to fulfill their intended function. An accessory must be identifiable as being intended solely or principally for use with a specific article. Accessories are of secondary importance, not essential in and of themselves. They must, however, somehow contribute to the effectiveness of the principal article (e.g., facilitate the use or handling of the principal article, widen the range of its uses, or improve its operation).

The CD Lens Cleaning System is an "accessory" which can be used with a CD music player, a CD-ROM drive for a personal computer, and for a video game. Because the subject merchandise can be used for more than one article, we find that its principal or sole use cannot be determined for classification purposes based upon GRI 1. Therefore, classification under headings 8473, 8522, and 9504, HTSUS, is precluded.

Because classification in a single heading cannot be determined by applying GRI 1, we must apply the other GRI's. GRI 2(a) is not applicable here because the merchandise is not incomplete or unfinished. The subject merchandise essentially consists of a compact disk with brushes attached to the underneath surface of the disk. According to the information provided, the compact disk has "On-Disc" voice instructions and music to explain the cleaning process while in use. Compact disks with recorded media are prima facie classifiable under heading 8524, HTSUS. Brushes are prima facie classifiable under heading 9603, HTSUS. GRI 2(b) states that if a product is a mixture or combination of materials or substances that are, prima facie, classifiable in two or more headings, then GRI 3 applies.

GRI 3(a) states that if a product is classifiable in two or more headings by application of GRI 2(b), then 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.

Because the CD and the brushes fall under separate headings in the tariff schedule which describe only a portion of the CD Lens Cleaning System, the headings are to be regarded as equally specific under GRI 3(a). Therefore, GRI 3(a) fails in establishing classification, and GRI 3(b) becomes applicable.

GRI 3(b) provides that composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the HTSUS. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989). EN IX to GRI 3(b), page 4, states that:

[f]or the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts. (emphasis in original)

Because the item is a composite good, we must determine which component provides the essential character. EN VIII to GRI 3(b), page 4, states that:

[t]he 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.

We believe that the CD imparts the essential character of the merchandise because it makes up the bulk and weight of the merchandise and it is the component which interacts with the CD player, drive or video game. Therefore, we find that the CD Lens Cleaning System is classifiable under heading 8524, HTSUS, because it plays voice instructions and music.

Classification of the subject merchandise under this provision is supported by Legal Note 6 to Chapter 85, HTSUS, which states that: "[r]ecords, 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." In classifying retail sets containing media of heading 8523 or 8524, HTSUS, Customs has interpreted the meaning of Legal Note 6 to Chapter 85, HTSUS, as requiring that the media is to be broken out from a retail set and classified separately. See HQ 952154 (November 17, 1992); HQ 950925 (May 12, 1992). In these situations, the essential character of the retail sets, which contained the media of headings 8523 or 8524, HTSUS, were held to be other than the media. In situations where the essential character of the retail set is the media, Customs has found that Legal Note 6 to Chapter 85, HTSUS, allows for a retail set, whose essential character is the media, to be classified as media. See HQ 956960 (September 19, 1994); HQ 956490 (August 19, 1994). We believe that Legal Note 6 to Chapter 85, HTSUS, allows for composite goods consisting of the media of heading 8523 or 8524, HTSUS, to be classified under these provisions.

Based upon the above analysis, DD 807509 is revoked.

HOLDING:

The CD Lens Cleaning System is classifiable under subheading 8524.90.40, HTSUS, which provides for: "[r]ecords, tapes and other recorded media for sound or other similarly recorded phenomena, including matrices and masters for the production of records, but excluding products of chapter 37: [o]ther: [o]ther. . . . ." The general, column one rate of duty is 7.8 cents per square meter of recording surface.

EFFECT ON OTHER RULINGS:

DD 807509, issued on March 30, 1995, is revoked. In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations [19 CFR 177.10(c)(1)].

Sincerely,

John Durant, Director
Tariff Classification Appeals Division

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