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HQ 953466




May 10,1994

CLA-2 CO:R:C:F 953466 JGH

CATEGORY: CLASSIFICATION

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

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