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HQ 958890





February 28, 1996

CLA-2 RR:TC:MM 958890 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 3707.90.32

Port Director
Port of New York c/o Chief, Residual Liquidation and Protest Branch 6 World Trade Center
Room 761
New York, New York 10048-0945

RE: Protest 1001-95-108250; Laser Printer Toner Cartridges; no moving parts; heading 8473; HQs 082357, 089122, 089260; Mita Copystar America v. U.S.

Dear Port Director:

The following is our decision regarding Protest 1001-95-108250, which concerns the classification of toner cartridges under the Harmonized Tariff Schedule of the United States (HTSUS). The subject merchandise was entered on May 15, 1995, and the entry was liquidated on September 22, 1995. The protest was timely filed on September 27, 1995.

FACTS:

The Model TK-2 Laser Printer Toner Cartridge is a plain plastic container with toner powder. It is designed to fit into a specific location in a designated laser printer, which has been specifically designed to accommodate the cartridge. However, the TK-2 does not have any moving parts or electrical contacts. The TK-2 is activated by removing a seal. The toner powder flows from the container into the fuser and developer compartments to be used for printing. Once the seal is removed, the cartridge cannot be removed without spilling the toner until all of the toner has been used.

The Model TK-12 Laser Printer Toner Cartridge contains several moving parts, including upper and lower agitators, a toner supply roller and shutter. By facsimile received February - 2 -

21, 1996, your office has advised that it will grant the protest regarding the TK-12.

The TK-2 (and TK-12) toner cartridges were entered under subheading 8473.30.40, HTSUS, which provides for other parts of automatic data processing (ADP) printers. They were classified upon liquidation under subheading 3707.90.32, HTSUS, which provides for other chemical preparations for photographic uses.

ISSUE:

Whether the TK-2 toner cartridges, which have no moving parts or electrical contacts, are classifiable under subheading 8473.30.40, HTSUS, which provides for other parts of automatic data processing (ADP) printers.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ."

The protestant cites HQ 089122, dated November 5, 1991, for the proposition that the TK-2 should be classified as a printer part under subheading 8473.30, HTSUS. However, the laser printer toner cartridges of HQ 089122, which were classified under subheading 8473.30, HTSUS, are distinguishable from the TK-2 (though similar to the TK-12).

The cartridges of HQ 089122 are composed of a container, toner and shaft (with vane). The shaft runs through the inside of the container and is connected to the machine on the outside by a vane. When the article is positioned in the printer, the vane is turned by the machine. As the vane turns, so does the shaft inside the cartridge, thereby providing a continuous agitation of the toner in the cartridge. See also HQ 089260, dated August 12, 1991 (toner cartridge with several integral, constituent component parts, including an agitator blade, was classified under subheading 8473.30, HTSUS).

The TK-2, on the other hand, consists of a plain plastic container with toner powder. Unlike the toner cartridges of HQ 089122 and HQ 089260, the TK-2 does not contain any moving parts or electrical contacts. The classification of the TK-2 is not governed by our holdings in HQ 089122 and HQ 089260, but the U.S. - 3 -

Court of Appeals for the Federal Circuit's (CAFC) holding in Mita Copystar America v. United States [Mita I], 21 F.3d 1079 (Fed. Cir. 1994).

In Mita I, the CAFC affirmed the U.S. Court of International Trade's (CIT) decision to classify toners and developers for use in Mita's photocopy machines under subheading 3707.90.32, HTSUS, which provides for other chemical preparations for photographic uses. The toner at issue consisted of "two different resins, carbon black (or, pigments, in the case of red or blue toners), dye, and silica and/or aluminum oxide." Id. at 1080. In operation, the toner, which is placed in the toner reservoir, "is automatically fed into the developing unit, where it is continuously mixed with the developer in a predetermined ratio." Id.

Like the Mita I toners, the TK-2 does not contain any moving parts or electrical contacts, and the cartridge "is nothing more than a container for fuel [the toner] which must be constantly replenished." See HQ 082357, dated November 29, 1989. Although the TK-2 is designed to fit into a specific location in a designated laser printer, the fact that a container may be specially fitted does not lead to the conclusion that the container is classifiable as a printer "part" under subheading 8473.30, HTSUS. The TK-2 is simply a container of toner, and it is classifiable under subheading 3707.90.32, HTSUS.

Finally, we note that the classification of toner cartridges without integral, constituent parts is presently before the CIT in Mita Copystar America v. United States [Mita II], Court No. 93-03-00189.

HOLDING:

The TK-2 toner cartridges are classifiable under subheading 3707.90.32, HTSUS, while the TK-12 toner cartridges are classifiable under subheading 8473.30.40, HTSUS.

The protest should be DENIED with regard to the TK-2 toner cartridges, but, as you have indicated, GRANTED with regard to the TK-12 toner cartridges. In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, 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 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

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