HQ 953466
May 10,1994
CLA-2 CO:R:C:F 953466 JGH
TARIFF NO.: 3707.90.30
Area Director of Customs
110 S. Fourth Street
Minneapolis, Minnesota 55401
RE: Decision on Application for Further Review of Protest
No. 3501-92-100366, on the Classification of Toners and
Developers.
Dear Sir:
This protest filed at your port concerns the classification
of toners and developers, products of Japan, entered in June
1992.
FACTS:
Toners and developers are used in photocopy machines to
impart an image. They are separate products which are
individually placed in the machine and mixed together during the
photocopying process.
ISSUE:
Whether the toners and developers are classifiable as
unmixed products for photographic uses, put up in measured
portions or put up for retail sale in a form ready for use, in
subheading 3707.90.60, HTSUS; or under the provision for chemical
preparations for photographic uses, in subheading 3707.90.30,
HTSUS.
LAW & ANALYSIS:
In behalf of the importer it is claimed that the toner and
developer are unmixed products within the meaning of 3707.90.60,
since the term "unmixed products" refers to the products function
rather than their chemical composition. Such products, it is
claimed, are distinguishable from the type of toner and developer
which are mixed outside the photocopy machine and, as a result,
are known as a monocomponent toner. - 2 -
The classification of toners and developers similar to the
ones under consideration was the subject of Mita Copystar Corp.,
v. United States, (Slip Op. 93-76, dated May 20, 1993). The
merchandise in that case involved separate toners and developers;
the toners were said to consist of a mixture of resins, dye and
an oxide; the developer was said to be a combination of metal
oxides. As with the products in this case, the Court noted that
the developer and toner were separately installed in the copy
machine, and were mixed during the operation. The Court went on
to state that the Explanatory Note to 3707.90 made it clear that
a toner or developer may be a single substance or a mixture of
substances; and that single substances were composed of an
identifiable chemical element or compound. It therefore
concluded that products classifiable in 3707.90.60 as "unmixed
products" are only those composed of an element or compound. The
products which are combinations of two or more elements or
chemical compounds, the Court stated, were chemical preparations
classifiable in subheading 3707.90.30, HTSUS.
Thus, the toners and developers in issue here, like those of
the court case, being mixtures of chemical elements and compounds
are classifiable as chemical preparations for photographic uses
in subheading 3707.90.30, HTSUS.
HOLDING:
You are directed to deny the protest in full. A copy of
this decision should be attached to the Form 19 Notice of Action
sent to the protestant.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-65, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed 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 the 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 Diskette Subscription Service, Lexis, Freedom
of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division