CLA-2 R:C:M 957965 RFA
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