HQ 954665: 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

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 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