HQ 089268: Protest number 2501-0-000141; base plate assembly; datacartridge; Subheading 8473.30.40; Heading 8523; GRI 1; Chapter85, 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.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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 





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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 



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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.




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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