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HQ 954665

August 18, 1993
CLA-2 CO:R:C:M 954665 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8479.89.90

District Director
U.S. Customs Service
300 South Ferry St.
Terminal Island, Room 2017
San Pedro, California 90731

RE: Protest No. 2704-89-001476; tint tank; 9013.90.40; EN 90.13; 8419.89.50; Note 2(e), Chapter 84; EN 84.19; heating secondary function; tinting principal function; EN 84.79

Dear District Director:

This is in response to the Application for Further Review of Protest No. 2704-89-001476, which pertains to the tariff classification of a tink tank under the Harmonized Tariff Schedule of the United States (HTSUS). We regret the delay in responding to this protest.

FACTS:

The article at issue is a tint tank which is used to immerse plastic eyeglass lenses into a fluid dye to color the lenses for cosmetic reasons. The dye is contained in a thermostatically controlled bath that performs quick, repeatable coloring (tinting). The tint tank heats the dye to control the dye's flow or consistency.

Upon importation, the tint tank entry was liquidated on March 24, 1989, under subheading 9013.90.40, HTSUS, which provides for "Liquid crystal devices not constituting articles provided for more specifically in other headings; lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in this chapter; parts and accessories thereof...Parts and accessories...Other."

In a protest timely filed on April 11, 1989, Salem Distribution Co., contends that the tint tank is properly classified under subheading 8419.89.50, HTSUS, which provides for "Machinery, plant or laboratory equipment, whether or not electrically heated, for the treatment of materials by a process involving a change of temperature such as heating, cooking, roasting, distilling, rectifying, sterilizing, pasteurizing, steaming, drying, evaporating, vaporizing, condensing or cooling, other than machinery or plant of a kind used for domestic purposes; instantaneous or storage water heaters, nonelectric; parts thereof...Other machinery, plant or equipment...Other...Other...."

ISSUE:

What is the proper tariff classification of the tint tank under the HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, 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...."

Subheading 9013.90.40, HTSUS, provides for parts or accessories of liquid crystal devices not constituting articles provided for more specifically in other headings. The Harmonized Commodity Description and Coding System (HCDCS) Explanatory Note (EN) 90.13 (pgs. 1478-1480), states that heading 9013, HTSUS, includes liquid crystal devices, lasers, hand magnifying glasses and magnifiers, telescopic sights, telescopes stereoscopes, kaleidoscopes, magnifying periscopes, optical lightbeam signalling apparatus, slide viewers, etc. The ENs, although not dispositive, are to be looked to for the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). The tint tank is not similar to any of the listed examplers and, therefore, it is not a part or accessory of any of the listed examplers. As the tint tank does not satisfy the terms of the subheading, it is not classifiable under subheading 9013.90.40, HTSUS.

Subheading 8419.89.50, HTSUS, provides for other machinery, plant or laboratory equipment, whether or not electrically heated, for the treatment of materials by a process involving a change of temperature. Note 2(e), Chapter 84, HTSUS, states that heading 8419, HTSUS, does not cover "[m]achinery or plant, designed for mechanical operation, in which a change of temperature, even if necessary, is subsidiary." Additionally, EN 84.19 (pg. 1173), states that:

...the heading excludes machinery and plant in which the heating or cooling, even if essential, is merely a secondary function designed to facilitate the main mechanical function of the machine or plant, e.g., machines for coating biscuits, etc., with chocolate, and conches (heading 84.38), washing machines (heading 84.50 or 84.51), machines for spreading and tamping bituminous road-surfacing materials (heading 84.79).

Although heating of the dye appears to be one of the functions of the tinting tank, the principal function appears to be the coloring or tinting of the plastic lenses. Therefore, inasmuch as heating is a secondary function of the tint tank, it is excluded from classification under subheading 8419.89.50, HTSUS.

We are of the opinion that the tint tank is classified under subheading 8479.89.90, HTSUS, which provides for "Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof...Other machines and mechanical appliances...Other...Other...." EN 84.79 (pgs. 1313- 1319) states that this heading is restricted to machinery having individual functions which:

(a) Is not excluded from this Chapter by the operation of any Section or Chapter Note.
and (b) Is not covered more specifically by a heading in any other Chapter of the Nomenclature.
and (c) Cannot be classified in any other particular heading of this Chapter since:

(i) No other heading covers it by reference to its method of functioning, description or type.
and (ii) No other heading covers it by reference to its use or to the industry in which it is employed.
or (iii) It could fall equally well into two (or more) other such headings (general purpose machines).

The tint tank is not excluded from classification within Chapter 84, HTSUS, pursuant to Section XVI and Chapter 84, HTSUS, notes and, as stated previously, it is not more specifically covered by another heading in the HTSUS. Additionally, the tint tank cannot be classified in any other heading of Chapter 84, HTSUS, because no other heading covers it by reference to its function, description or type, nor by reference to its use or to the industry in which it is employed. Therefore, the tint tank is classified under subheading 8479.89.90, HTSUS.

HOLDING:

The tink tank is classified under subheading 8479.89.90, HTSUS, as other machines having individual function, not specified or included elsewhere in Chapter 84, HTSUS.

As reclassification of the merchandise as indicated above would result in a lower rate of duty than claimed, the protest should be granted. 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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