CLA-2 RR:CR:GC 962650 PH
Port Director of Customs
9777 Via de la Armistad
San Diego, CA 92173
RE: Protest 2501-99-100001; Bubble Jet Ink Cartridges
Dear Port Director:
This is our decision on protest 2501-99-100001, against your classification under the Harmonized Tariff Schedule of the United States (HTSUS) of certain Bubble Jet Cartridges. Samples were provided.
FACTS:
The merchandise is invoiced as "BUBBLE JET CARTRIDGE BCI-21 BK TANK" and "BUBBLE JET CARTRIDGE BCI-21 COLOR TANK". The samples consist of small (approximately 2 1/2" X 1 1/2" X 3/4"), specially shaped or configured (with tabs, grooves, etc.) plastic rectangular containers with their contents. Each article consists of the container or tank, an ink sponge (the color cartridge has three sponges), a plastic cartridge cover, an air intake plate, and ink (black for the black cartridge; cyan, magenta, and yellow for the color tank). The protestant states, and Customs has no information to the contrary, that the cartridges are specifically designed for use with the print head mechanism of various color bubble jet printers of a manufacturer of such printers. Further, the printers cannot operate without the cartridges and the cartridges are not designed for reuse.
The merchandise was entered in 71 entries in 1997 and 1998, as printing ink, black, in subheading 3215.11.00, HTSUS, or printing ink, other, in subheading 3215.19.00, HTSUS. The entries were liquidated with classification as entered.
The importer’s counsel filed this protest with Customs on January 6, 1999, against the classification of the merchandise. Citing General Rule of Interpretation (GRI) 1, Note 2, Section XVI, HTSUS, and Mita Copystar, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), rehearing denied 994 F. Supp. 393 (CIT 1998), reversed 160 F.3d 710 (Fed. Cir. 1998), and CIT decisions vacated CIT Slip Opinion 99-4 (1999), the protestant contends that the articles are parts of output units for automatic data processing (ADP) machines properly classified in subheading 8473.30.50, HTSUS.
ISSUE:
Whether the Bubble Jet Cartridges are classifiable as printing ink, black or other (than black), in subheading 3215.11.00 or 3215.19.00, HTSUS, respectively, or parts and accessories of machines of heading 8471, HTSUS, in subheading 8473.30.50, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the protest was timely for those entries for which the notice of liquidation was within 90 days after but not before the notice of liquidation (see 19 U.S.C. 1514(c)(3)(A)) (i.e., entries liquidated on or after October 23, 1998, and on or before January 6, 1999). However, in this regard we note that according to Customs records, the notice of liquidation of some of the entries (e.g., entry #’s **4-*****086 liquidated May 7, 1999, and **4-*****907 liquidated April 16, 1999) was after the protest was filed and therefore the protest must be DENIED as to these entries, as untimely. Also in regard to procedural issues, we note that 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 (GRIs), 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.
The 1997 and 1998 HTSUS headings and subheadings under consideration are as follows:
3215 Printing ink, writing or drawing ink and other inks, whether or not concentrated or solid:
Printing ink:
3215.11.00 Black
3215.19.00 Other
8473 Parts and accessories (other than covers, carrying cases and the like) suitable for use solely or principally with machines of headings 8469 to 8472:
8473.30 Parts and accessories of the machines of heading 8471:
Not incorporating a cathode ray tube:
8473.30.50 Other
Note 2, Section XVI (which includes Chapter 84, HTSUS), HTSUS, provides in pertinent part:
2. ... [P]arts of machines ... are to be classified according to the following rules:
(a) Parts which are goods included in any of the headings of chapter 84 and 85 ... are in all cases to be classified in their respective headings;
(b) Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading ... are to be classified with the machines of that kind or in heading ... 8473 ... as appropriate. ...
Mita Copystar, supra, involved the classification of toner cartridges which are shaped to fit into specific electrostatic photocopiers. Customs classification of the articles was as chemical preparations for photographic uses in subheading 3707.90.30, HTSUS (currently broken out in subheadings 3707.90.31 and 3707.90.32, HTSUS). The final Court decision held the proper classification to be as parts and accessories of electrostatic photocopying apparatus in subheading 9009.90.00, HTSUS (currently broken out into four subheadings within subheading 9009.90, HTSUS).
The Court of Appeals for the Federal Circuit based its decision on Note 2(b), Chapter 90, HTSUS (this Note provides for the classification of parts and accessories of articles of Chapter 90 and is substantively similar to Note 2, Section XVI, HTSUS, quoted above, in part). (Before so deciding, the Court held that a Note for Section VI (including heading 3707, HTSUS) did not require classification in that heading, reversing the CIT which had held that the Note did require classification in heading 3707; there is no such note for heading 3215, HTSUS.) The Court set forth the following factors resulting in the determination that the cartridges were parts of photocopying apparatus (160 F.3d at 712-713):
The cartridges are sold with toner inside; they remain with the toner throughout its use by the photocopier; they are the standard device for providing toner to the photocopier; and they are not designed for reuse.
Similarly, "[t]he cartridges [in this case] are sold with [ink] inside; they remain with the [ink] throughout the use by the [printer]; they are the standard device for providing [ink] to the [printer]; and they are not designed for reuse." Printer units of ADP machines are classifiable in heading 8471, HTSUS (see, e.g., New York Ruling (NY) 815407 dated October 6, 1995). Accordingly, pursuant to Note 2, Section XVI, HTSUS, the language of which is substantively the same as that interpreted in Mita Copystar, supra, we conclude that the cartridges are classified as other parts and accessories suitable for use solely or principally with machines of headings 8471, HTSUS, not incorporating a cathode ray tube, in subheading 8473.30.50, HTSUS. This is consistent with NY D86345 dated January 13, 1999.
HOLDING:
The Bubble Jet Cartridges are classifiable as other parts or accessories suitable for use solely or principally with machines of heading 8471, HTSUS, not incorporating a cathode ray tube, in subheading 8473.30.50, HTSUS.
The protest is DENIED in part (as to the entries for which the protest was filed untimely (i.e., entries liquidated on or after October 23, 1998, and on or before January 6, 1999) and ALLOWED in part (as to the remaining entries). 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