CLA-2 CO:R:C:G 086199 JGH
TARIFF: 3707.90.3000
Mr. James B. Clawson
International Business-Government Counsellors, Inc.
818 Connecticut Avenue, N.W.
12th Floor
Washington, D.C. 20006
RE: Xerox Process Toners and Developers
Dear Mr. Clawson:
We have received your correspondence dated December 22,
1989, requesting reconsideration of Headquarters Ruling Letter
(HRL) 084572. We have reviewed the facts of the case and have
determined that HRL 084572 represents the proper classification
of the subject toners and developers.
HRL 084572 provided for the classification of Xerographic
process toners and developers under the Harmonized Tariff
Schedule of the United States (HTSUS). The facts and analysis of
the case are set out at length in HRL 084572, in an original
submission from Xerox Corporation dated February 2, 1988, and in
you letter of December 22, 1989.
Further, our response to the issues you raised in your
submission dated December 22, 1990, is set forth below.
We agree with your statement that "the term products" as
used in heading 3707 encompasses any substance, whether element,
compound, mixture . . . which is used to perform one of the
photographic functions noted in the Explanatory Notes." In
fact, in HRL 084572, we specifically stated that "'products' as
used herein [the Explanatory Notes] refer both to substances
described as single substances, or (emphasis added) . . .
preparations obtained by mixing or compounding two or more
substances for photographic use."
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The Explanatory Notes to heading 3707, HTSUS, state that
this heading covers products of a kind used directly in the
production of photographic images. Such products include:
(1) Emulsions . . . .
(2) Developers to render latent photographic images
visible (e.g., hydroquinone, catechol . . .).
(3) Fixers . . . (e.g., sodium thiosulphate (hypo),
sodium metabisulphite . . .).
(4) Intensifiers and reducers . . . (e.g., potassium
dichromate, mercuric chloride . . . ).
(5) Toners . . . (e.g., sodium sulphide).
* * *
All the products cited above fall within the heading only
when they are:
(A) Single substances which are:
(i) Put up in measured portions that is uniformly
divided into the quantities in which they will be
used . . . ; or
(ii) In packings for retail sale and put up with any
indication that they are ready for use in
photography. . . .
Single substances put up other than as above, are
classified according to their nature (e.g., as chemical products
in Chapter 28 or 29 . . . .
or (B) Preparations obtained by mixing or compounding
together two or more substances for photographic use.
Such preparation remain within the heading whether
put up in bulk or small quantities, and whether or
not presented for retail sale.
In your submission you interpret the above language to mean
that a "toner or developer would be classified under HTS heading
3707, if specifically packaged or put up as specified in (A)
above. Mixtures of two or more "substances for photographic use"
(e.g. a combination of developer-fixer) would fall within the
heading pursuant to (B), even if imported in bulk." We agree
with this interpretation with regard to (A) to the extent that
the developer or toner or any other of the above products is only
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a chemical compound, and not a chemical compound mixed with other
substances (including other chemical compounbds), for
photographic use and put up pursuant to heading 37.07, HTSUS. It
is clear that the products of (A) above are single chemical
compounds. This is supported by the above exemplars of the
products included under 37.07, HTSUS. For instance, the
exemplars for developers include hydroquinone, catechol, and not
hydroquinone or catechol mixed with other substances.
Stated differently, the products of (A) are not a mixture
of a chemical compound and other substances, as is the
composition of the toners and developers under consideration.
Rather, they are single chemical compounds which would be
classifiable in Chapter 28 or 29, but because they are
specifically put up for photographic use pursuant to heading
3707, HTSUS, they are classified within this heading.
In contrast, the facts submitted in HRL 084572 clearly
state that the subject toners are composed of chemical compounds
and other substances, including other chemical compounds. Thus,
they are preparations obtained by mixing or compounding together
two or more substances for photographic use. Such a product is
clearly and specifically described in (B) above.
You also claim that mixing the toner and developer is
required before there can be a photographic use. Further, you
assert that this fact was not stated in HRL 084572. This fact
was considered in determining our position in HRL 084572, and has
been reconsidered in the instant case. However, this fact is not
in dispute. The mixing of the compounds, products, elements or
substances for photographic use is not the issue in the instant
case. The issue in the instant case is whether the subject
products are unmixed or single substances for purposes of heading
37.07, HTSUS
As we discussed in HRL 084572, and again in the instant
case, the subject toners are not unmixed or single products and
are properly classifiable in subheading 3707.90.30, HTSUS,
dutiable at a rate of 8.5 percent ad valorem.
Accordingly HRL 084572 is affirmed.
Sincerely,
Jerry Laderberg
Acting Director
Commercial Rulings Division