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NY 817908

January 23, 1996

CLA-2-84:RR:NC:1:103 817908


TARIFF NO.: 8479.89.9598

Mr. Jerry P. Wiskin
Sonnenberg & Anderson
90 West Street, 10th Floor
New York, NY 10006

RE: The tariff classification of a machine used in the manufacture of cosmetic pencils from Germany

Dear Mr. Wiskin:

In your letter dated December 18, 1995 on behalf of Schwan-STABILO, Schwanhausser GmbH & Co. you requested a tariff classification ruling.

Along with your letter you submitted a schematic drawing of the machine to be imported as well as a sample of the finished cosmetic pencil. The imported machine will be used to fill a mechanical pencil with a cosmetic "lead" and also assemble components of the mechanical pencil to produce a finished article. The machine will consist of two sections, connected together by a transfer system, and the control equipment necessary to operate the machine. In one section of the machine the cosmetic "lead", which is in the form of a paste, is injected into its holder and pressed to form a compact mass. The holder will then be transferred to the other section of the machine, where individual stations will assemble various components, including the outer plastic shell, mechanical propelling mechanism, sealing balls, seals, and protective cap, in order to produce the finished article. The imported machine will also incorporate stations for checking the integrity of the filling and assembly processes.

You contend that the imported machine should be classified in the provision for other machinery for filling, closing, sealing or labeling bottles, cans, boxes, bags or other containers in subheading 8422.30.90, Harmonized Tariff Schedule of the United States (HTS). In support of this claim you cite note 4 to section XVI, as well as Ruling Letter NY 864565 of July 19, 1991. In Ruling Letter NY 864565 machines which took an empty bag and placed it onto a filling spout, filled the bag to a pre-determined weight, released the filled bag onto a conveyor, and transferred the bag to a separate station which closed the bag were held classifiable in subheading 8422.30.90, HTS. You claim the imported machine which will be used to produce the cosmetic pencil is similar to the machines of that ruling.

Not every article which can contain something is a container for purposes of heading 8422 and, likewise, not every machine which fills an article is a container filling machine provided for in heading 8422. For example, a comforter may contain feathers, down, or a similar stuffing. Nevertheless, the Harmonized Commodity Description And Coding System Explanatory Notes (ENs) indicate that machines for filling eiderdowns are not classifiable in heading 8422 but in heading 8479 of the HTS. Although the ENs are not legally binding on the contracting parties, and therefore not dispositive, Customs believes they are useful in ascertaining the classification of merchandise under the Harmonized System and should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). A bag is clearly recognized as a container in the language of subheading 8422.30.90, HTS. However, a mechanical writing pencil, to which the cosmetic pencil is akin, is not commonly or commercially considered to be a container. Rather, like a comforter, it is an article in its own right.

Even if the pencil is considered a container, we are of the opinion that the assembly function performed by the imported machine is equal in importance to the filling of the pencil, and this assembly function falls outside the scope of heading 8422, HTS. Without the assembly function the mechanical cosmetic pencil, which is the end result of the various operations performed by the imported machine, would not exist. Accordingly, as the imported machine does not have a single clearly defined function covered by a heading in chapter 84 or chapter 85, note 4 to section XVI is not applicable. Finally, we do not believe the machine described in Ruling Letter 864565 is similar to the imported machine. Based on the foregoing, subheading 8422.30.90, HTS, does not apply to the imported machine.

Note 7 to chapter 84 states among other things that "...a machine the principal purpose of which is not described in any heading or for which no one purpose is the principal purpose is, unless the context otherwise requires, to be classified in heading 8479." The applicable subheading for the imported machine, whose purpose is the fabrication of a mechanical cosmetic pencil, will be 8479.89.9598, Harmonized Tariff Schedule of the United States (HTS), which provides for machines and mechanical appliances having individual functions, not specified or included elsewhere...: other machines and mechanical appliances: other: other: other: other. The rate of duty will be 3.2 percent ad valorem.

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Alan Horowitz at 212-466-5494.


Roger J. Silvestri

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