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HQ 962911




OCTOBER 15, 1999

CLA-2 RR:CR:GC 962911 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3707.90.32, 8473.30, 9009.90

Port Director of Customs
1624 E. 7th. Ave., Suite 101
Tampa, FL 33605

RE: Protest 1801-98-100076; Toner Cartridges

Dear Port Director:

This is our decision on Protest 1801-98-100076, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of cartridges, toner bottles and laser drum cleaning kits for photocopy machines and printers for automatic data processing machines. The entries under protest were liquidated on August 28, 1998, and this protest timely filed on October 26, 1998.

FACTS:

The merchandise at issue is toner in bottles, toner/ developer cartridges and laser laser drum cleaning kits. Some of these cartridges contain toner and are used with photocopy machines. Other cartridges contain ink and are used with printers. The submitted literature indicates that at least some of the cartridges contain a gear that meshes with the internal gears of the machine. The cartridges are sold with toner or ink inside and remain with their contents throughout its use by the machine. The cartridges are not designed for reuse.

The articles were entered under a provision in heading 9009, HTSUS, as other parts and accessories of photocopying machines. On the belief that the cartridges were classifiable based on their contents, the entries were liquidated under a provision in heading 3707, HTSUS, as chemical preparations for photographic uses. On protest, the claim is that Chapter 90, Additional U.S. Note 5(a), HTSUS, requires that the cartridges be classified as parts
of the machine or apparatus with which they are solely or principally used. With respect to certain of the toner in bottles, a claim is made under the duty-free provision of heading 9801.00.10, HTSUS, as products of the United States when returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad.

The HTSUS provisions under consideration are as follows:

3707 Chemical preparations for photographic uses...:

3707.90 Other:

Chemical preparations for photographic uses:

3707.90.32 Other

8473 Parts and accessories...suitable for use solely or principally with machines of headings 8469 to 8472:

8473.30 Parts and accessories of the machines of heading 8471 (automatic data processing machines, machines for transcribing data and machines for processing such data):

Not incorporating a cathode ray tube:

Other:

9009 Photocopying apparatus incorporating an optical system or of the contact type and thermocopying apparatus; parts and accessories thereof:

9009.90 Parts and accessories:

ISSUE:

Whether cartridges containing toner or ink are Aparts@ classifiable with the machine or machines with which they are solely or principally used.

LAW AND ANALYSIS:

Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified 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.

Section VI, Note 2, HTSUS, states in part that goods classifiable in heading 3707 by reason of being put up in measured doses or for retail sale are to be classified in that heading and in no other heading of the tariff schedule.

Parts which are goods included in any of the headings of Chapters 84 and 85 are in all cases to be classified in their respective headings. See Section XVI, Note 2(a), HTSUS. Other parts, if suitable for use solely or principally with a particular machine, or with a number of machines of the same heading, to include heading 8473, among others, are to be classified with the machines of that kind. See Section XVI, Note 2(b), HTSUS.

Parts and accessories which are goods included in any of the headings of Chapters 84, 85, 90 and 91, are in all cases to be classified in their respective headings. See Chapter 90, Note 2(a), HTSUS. Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments and apparatus of the same heading, are to be classified with the machines, instruments and apparatus of that kind. See Chapter 90, Note 2(b), HTSUS. Chapter 90, Additional U.S. Note 5(a), HTSUS, states, in part, that with respect to parts of photocopying apparatus of subheading 9009.12, subheadings 9009.90.10 and 9009.90.30 cover imaging assemblies incorporating a toner receptacle unit and toner distribution unit.

Initially, the classification of toner for photocopy machines in subheading 3707.90.30, HTSUS, was settled in Mita Copystar America v. United States, 21 F.3d 1079 (Fed. Cir. 1994) (Mita I). The record indicates that a number of the items listed in this protest are classifiable within this provision.

Many of the remaining items in this protest are identified as Akits@ which contain either toner bottles or cartridges, together with other articles for cleaning or maintaining the copier or printer. This suggests that these are goods put up in sets for retail sale which, under GRI 3(b), are to be classified as the material or component which imparts the essential character to the whole. For this purpose, it is apparent that the toner bottle or cartridge, as appropriate, imparts the essential character to the set.

The classification of toner cartridges for electrostatic photocopiers was addressed in Mita Copystar America v. United States, Appeal No. 98-1203 (Fed. Cir., decided November 6, 1998) (Mita II). These were cartridges sold with toner inside, the cartridges being the standard device for providing toner to the copier, and which remained with the toner throughout its use by the photocopier. The cartridges were not designed for reuse. The court in Mita II held that the cartridges were classified in heading 9009, HTSUS, as parts and accessories of photocopiers, citing Chapter 90, Note 2(b). The court reasoned that the photocopiers could not function without the cartridges which were dedicated for use with them. Whether the toner cartridges in Mita II contained a gear, as many of the ones in this protest do, is unclear. However, what is clear is that toner cartridges, with or without a gear attached, that are solely or principally used with photocopying apparatus of heading 9009, are also classified in that heading, in accordance with Chapter 90, Note 2(b), HTSUS.

The remaining cartridges, apparently containing ink, are used with laser printers and other printers provided for in heading 8471. Such cartridges qualify as Aparts@ under the authority of Mita II. As such, they are provided for in heading 8473, in accordance with Section XVI, Note 2(b), HTSUS.

HOLDING:

Under the authority of GRI 1, toner in bottles is provided for in heading 3707. These articles are classifiable in subheading 3707.90.32, HTSUS. Goods put up in sets for retail sale that contain bottled toner are similarly classifiable. The protest should be DENIED as to both categories of merchandise. As there are no facts or legal arguments in support of the claim under heading 9801.00.10, HTSUS, with respect to this merchandise, the protest should be DENIED as to this claim.

Under the authority of GRI 1 and Section XVI, Note 2(b), HTSUS, toner cartridges for laser printers and other printers are provided for in heading 8473. They are classifiable in the appropriate provisions of subheading 8473.30, HTSUS. Goods put up in sets for retail sale that contain these cartridges are similarly classifiable. The protest should be ALLOWED as to both categories of merchandise.

Under the authority of GRI 1 and Chapter 90, Note 2(b), HTSUS, toner cartridges for photocopiers are provided for in heading 9009. They are classifiable in the appropriate provisions of subheading 9009.90, HTSUS. Goods put up in sets for retail sale that contain these cartridges are similarly classifiable. The protest should be ALLOWED as to both categories of merchandise.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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