HQ 960816

August 27, 1998

CLA-2 RR:CR:GC 960816 PH

CATEGORY: Classification

TARIFF NO.: 8428.90.00; 8452.21.90; 8452.90.00; 8479.89.90

Port Director of Customs

18011K Cross Beam Drive

Charlotte, NC 28217

RE: Protest 1512-97-100177; Automatic Gusset Line Closer; sewing

machines; lifting, handling, loading or unloading machines;

stretching; incomplete functional unit; parts of functional

unit; principal function; GRIs 2(a); 3(c); Note 4, Section

XVI; Note 3, Section XVI; EN 84.28; HQs 087077; 950218;

957326; 961003

Dear Port Director:

This is our decision on protest 1512-97-100177, against your

classification under the Harmonized Tariff Schedule of the United

States (HTSUS) of machines used to make up automatic gusset line

closer machines.

FACTS:

The merchandise is invoiced as \"ONE PICK UP AND ORIENTATION

SET WITH CONTROL KEY BOARD\" and \"ONE TURRET UNIT WITH CONTROL

CABINET AND ACCESSORIES AS MACHINE AUTOMATIC GUSSET\". The

importer states that these articles are two of the four machines

which make up an \"Automatic Gusset Line Closer\" (AGLC) machine

used to make pantyhose. The first article, also called a

\"Schadok Lifting and Handling Device\", lifts fabric blanks from

the supply reservoir of tubular fabric blanks, orients the

blanks, and transports them to the second article (also called a

\"Loader\"). The Loader positions the blanks and removes creases

and pleats from them, after which the other two machines in the

AGLC perform sewing functions.

The merchandise was entered in 14 entries between April and

December, 1993, as other sewing machines, automatic units, in

subheading 8452.21.90, HTSUS. The entries were liquidated on

January 31, 1997, with classification as other machines and

mechanical appliances having individual functions, not specified

or include elsewhere, in subheading 8479.89.90, HTSUS.

The importer\'s counsel filed this protest with Customs on

April 30, 1997, against the classification of the merchandise.

Citing Harmonized Commodity Description and Coding System

Explanatory Note (EN) 84.79, the protestant contends that the

machines are precluded from classification under heading 8479,

HTSUS, because they can be properly classified in another more

specific heading of Chapter 84, HTSUS, namely heading 8428 or

8452, HTSUS. The protestant also contends that the machines are

used exclusively as components for the AGLCs and that their

principal functions are the lifting, handling, and loading

functions specifically provided for in subheading 8428, HTSUS.

Alternatively, the protestant argues that the machines, when

combined with the other two machines making up the AGLCs,

contribute together to the clearly defined function performed by

sewing machines, and that the four machines are interdependent on

one another. Therefore, under Note 4, Section XVI, HTSUS, the

machines should be classified as sewing machines in heading 8452,

HTSUS. In this alternative argument, the protestant contends

that the machines would be classified as parts of sewing machines

in subheading 8452.90.00, HTSUS.

The subheadings under consideration are as follows:

8428.90.00: Other lifting, handling, loading or unloading

machinery (for example, elevators, escalators,

conveyors, teleferics): \... Other machinery.

The 1993 general column one rate of duty for goods classifiable

under this provision is 2% ad valorem.

8452.21.90: Sewing machines, \...; furniture, bases and covers

specially designed for sewing machines; sewing

machine needles; parts thereof: \... Other sewing

machines: Automatic units: \... Other.

The 1993 general column one rate of duty for goods classifiable

under this provision is 2.5% ad valorem.

8452.90.00: Sewing machines, \...; furniture, bases and covers

specially designed for sewing machines sewing

machine needles; parts thereof: \... Other parts of

sewing machines.

The 1993 general column one rate of duty for goods classifiable

under this provision is 2.5% ad valorem.

8479.89.90: Machines and mechanical appliances having

individual functions, not specified or included

elsewhere in this chapter; parts thereof: \...

Other machines and mechanical appliances: \...

Other: \... Other.

The 1993 general column one rate of duty for goods classifiable

under this provision is 3.7% ad valorem.

ISSUE:

Whether the Schadok Lifting and Handling Devices and the

Loaders, two of the four machines making up Automatic Gusset Line

Closer machines, are classifiable as other lifting, handling,

loading or unloading machinery in subheading 8428.90.00, HTSUS,

other sewing machines in subheading 8452.21.90, HTSUS, other

parts of sewing machines in subheading 8452.90.00, HTSUS, or

other machines and mechanical appliances in subheading

8479.89.90, HTSUS.

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed (i.e.,

within 90 days after but not before the notice of liquidation;

see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is

protestable (see 19 U.S.C. 1514(a)(2) and (5)).

Classification of merchandise under the HTSUS is in

accordance with the General Rules of Interpretation (GRI\'s),

taken in order. 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 provided

the headings or notes do not require otherwise, according to GRIs

2 through 6. GRI 2(a) provides, in part, 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 entered,

the incomplete or unfinished article has the essential character

of the complete or finished article. GRI 3(c) provides that when

goods are prima facie classifiable under two or more headings,

goods which cannot be classified by reference to GRI 3(a) (by

reference to the heading which provides the most specific

description) or GRI 3(b) (classification of mixtures, composite

goods consisting of different materials or made up of different

components, and goods put up in sets for retail sale as if they

consisted of the material or component which gives them their

essential character) shall be classified under the heading which

occurs last in numerical order among those which equally merit

consideration.

The Harmonized Commodity Description and Coding System

Explanatory Notes (ENs) constitute the official interpretation of

the Harmonized System. While not legally binding on the

contracting parties, and therefore not dispositive, the ENs

provide a commentary on the scope of each heading of the

Harmonized System and are thus useful in ascertaining the

classification of merchandise. Customs believes the ENs should

always be consulted. See T.D. 89-80, published in the Federal

Register August 23, 1989 (54 FR 35127, 35128).

Note 4, Section XVI, HTSUS, provides that:

Where a machine (including a combination of machines)

consists of individual components (whether separate or

interconnected by piping, by transmission devices, by

electric cables or by other devices) intended to contribute

together to a clearly defined function covered by one of the

headings in chapter 84 or chapter 85, then the whole falls

to be classified in the heading appropriate to that

function.

The protestant contends that the machines are parts of

sewing machines made up of the two machines imported in the

protested entries and two other machines which perform the sewing

function, so that the individual components combine to contribute

together to a clearly defined function covered by heading 8452,

HTSUS, and the whole should be classified in that heading,

pursuant to Note 4, Section XVI, HTSUS. In applying Note 4,

Section XVI, HTSUS, Customs has repeatedly noted that there are

no Legal Notes or ENs that provide for \"unfinished functional

units\" or \"parts of functional units\". The fact that several

machines, if imported together, would be classified under a

single heading as a \"functional unit\" does not mean that the same

would hold true if they are imported separately. (See, e.g., HQs

087077 dated March 27, 1991; 950218 dated April 17, 1992; 957326

dated July 17, 1995; and 961003 dated June 10, 1998.) This is

particularly true when, as in this case, the machines imported in

the protested entry do not include the machines which give the

complete or finished article its essential character (i.e., that

of a sewing machine) (see GRI 2(a)). When imported separately,

the machines must be individually classified and classification

in subheading 8452.21.90 or 8452.90.00, HTSUS, by virtue of Note

4, Schedule XVI, HTSUS, is precluded.

The functions of the Schadok Lifting and Handling Device are

to remove fabric blanks from a supply reservoir, orient the

blanks in a predetermined manner, and convey them to the Loader.

Each of these functions is encompassed within the language of

heading 8428, HTSUS (see also EN 84.28, according to which \"\...

this heading covers a wide range of machinery for the mechanical

handling of materials, goods, etc. (lifting, conveying, loading,

unloading, etc.) \[and\] \[t\]hey remain here even if specialised for

a particular industry, for agriculture, metallurgy, etc.\"). The

Schadok Lifting and Handling Device is classified as other

lifting, handling, loading or unloading machinery in subheading

8428.90.00, HTSUS.

The functions of the Loader are to orient the fabric blanks

received from the Schadok Lifting and Handling Device, remove

creases and pleats from the fabric blanks (by stretching them,

according to materials provided by the protestant), and position

a pair of them on another machine for slitting and sewing. Two

of these functions are basically the same as the functions of the

Schadok Lifting and Handling Device (orienting the fabric blanks

and positioning them). These functions are encompassed within

the language of heading 8428, HTSUS (see above). The third

function, removing creases and pleats by stretching, is not

encompassed within the language of heading 8428, HTSUS, nor is it

specified or included elsewhere in Chapter 84, HTSUS, other than

in the \"basket\" provision in heading 8479, HTSUS.

Note 3, Section XVI, HTSUS, provides, in part:

Unless the context otherwise requires \... machines adapted

for the purpose of performing two or more complementary or

alternative functions are to be classified \... as being that

machine which performs the principal function.

\"Principal\" is defined as \"first in rank, authority,

importance, degree, etc.\" (Webster\'s New World Dictionary of

American English, 3rd Coll. Ed. (1988), 1070). We conclude that

removing creases and pleats by stretching is the most important

function of the Loader. This function, preparatory to sewing the

gusset into the pantyhose, is critical to the successful

production of pantyhose. The other two functions are subsidiary

to, or preparatory for, this function, and are actually

continuations of the functions of the Schadok Lifting and

Handling Device. Therefore, the Loaders are classified as other

machines and mechanical appliances having individual functions,

not specified or included elsewhere in Chapter 84, in subheading

8479.89.90, HTSUS (we note that if the principal function of the

Loader could not be determined, classification would remain in

subheading 8479.89.90, HTSUS (GRI Section XVI (VI) \"\[w\]here it is

not possible to determine the principal function \... it is

necessary to apply \[GRI\] 3(c)\")).

HOLDING:

The Schadok Lifting and Handling Devices are classified as

other lifting, handling, loading or unloading machinery in

subheading 8428.90.00, HTSUS, and the Loaders are classified as

other machines and mechanical appliances in subheading

8479.89.90, HTSUS.

The protest is GRANTED in part (as to the Schadok Lifting

and Handling Devices) and DENIED in part (as to the Loaders). In

accordance with Section 3A(11)(b) of Customs Directive 099

3550-065, dated August 4, 1993, Subject: Revised Protest

Directive, this decision should be mailed, with the Customs Form

19, by your office to the protestant no later than 60 days from

the date of this letter. Any reliquidation of the entry in

accordance with the decision must be accomplished prior to

mailing of the decision. Sixty days from the date of the

decision the Office of Regulations and Rulings will take steps to

make the decision available to Customs personnel via the Customs

Rulings Module in ACS and the public via the Diskette

Subscription Service, Freedom of Information Act, and other

public access channels.

Sincerely,

John Durant, Director,

Commercial Rulings Division