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HQ 964351

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August 22, 2001

CLA-2 RR:CR:GC 964351 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9009.90.50

Port Director
U.S. Customs Service
610 S. Canal Street
Chicago, IL 60607

RE: Protest 3901-98-101247; Toner cartridges

Dear Port Director:

This is our decision regarding Protest 3901-98-101247, concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of certain toner cartridges.

FACTS:

The file reflects the following. The subject entry was filed on January 18, 1996, and was liquidated on September 25, 1998. The protest was filed on November 25, 1998.

The merchandise at issue was entered under subheading 9009.90.50, HTSUS, as: “Photocopying apparatus incorporating an optical system or of the contact type and thermocopying apparatus: ... Parts and accessories: ... Other: Parts and accessories, other than photoreceptors or assemblies containing photoreceptors, of electrostatic copying machines of heading 9009.12.” The entry was liquidated under subheading 3707.90.32, HTSUS, as: “Chemical preparations for photographic uses ... : Other: Chemical preparations for photographic uses: ... Other.”

In a submission of February 22, 2000, the protestant’s counsel describes the merchandise as follows:

Each of the imported cartridges is specially engineered to be used with a particular model of Canon copier. The cartridges consist of molded plastic housings which are specially shaped and sized to hold a specific quantity of toner chemicals. [Footnote omitted.] The cartridges are specially engineered, in terms of size, shape, and surface contact characteristics, to interface and engage with toner hopper assemblies of various Canon copier models. The cartridges are assembled with the toner hopper assemblies, and discharge their toner supplies into the hoppers. The toner cartridges are essential to the operation of the copiers and expand their uses. ...
Each of the Katun cartridges involved in the protested entries are engineered for use with specific models of Canon copiers ... each Canon copier model uses a toner cartridge and toner hopper of unique dimensions. The cartridges are specially designed to match the toner hopper dimensions of each Canon copier, to engage with the toner hopper assemblies (being held firmly in place thereto), and, in some cases, to be rotated or moved in a particular direction in order to promote the flow of toner chemicals between the cartridge and the hopper.

In a submission of June 15, 2000, the protestant’s counsel states that the goods “are ‘dispenser’-type cartridges which are designed to be fitted into a specific aperture engineered into specific models of Canon copiers.” In a submission of February 22, 2000, protestant’s counsel states that the goods “are intended for use as ‘aftermarket’ parts of specific models of Canon indirect process electrostatic photocopiers.”

The Customs Protest and Information Report (CF 6445A) states that the Katun part numbers at issue are 11746, 11747, 11748, and 11749. It refers to the items as “Advantage Can Toners.”

The protestant’s counsel has advised that the goods were known commercially as toner cartridges (B style) and “machine dedicated dump-style gravity fed” cartridges. Counsel advises that the goods are no longer sold by the protestant.

ISSUE:

What is the tariff classification of the subject toner cartridges and toner bottles?

LAW AND ANALYSIS:

We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1).

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

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

9009 Photocopying apparatus incorporating an optical system or of the contact type and thermocopying apparatus:

9009.90 Parts and accessories:

Other:

9009.90.50 Parts and accessories, other than photoreceptors or assemblies containing photoreceptors, of electrostatic copying machines of heading 9009.12.

Note 2 to Section VI, HTSUS (which includes Chapter 37, HTSUS), provides as follows:

Subject to note 1 above, goods classifiable in heading 3004, 3005, 3006, 3212, 3303, 3304, 3305, 3306, 3307, 3506, 3707 or 3808 by reason of being put up in measured doses or for retail sale are to be classified in those headings and in no other heading of the tariff schedule.

Note 2 to Chapter 90, HTSUS, provides as follows:

Subject to note 1, above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules:

(a) Parts and accessories which are goods in any of the headings of this chapter or of chapter 84 and 85 or 91 (other than heading 8485, 8548 or 9033) are in all cases to be classified in their respective headings;

(b) 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 or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013, or 9031) are to be classified with the machines, instruments or apparatus of that kind;

(c) All other parts and accessories are to be classified in heading 9033.

In Mita Copystar America v. United States, 160 F.3d 710 (Fed. Cir. 1998), rev’g 21 CIT 611, 966 F. Supp. 1245 (1997), which involved toner cartridges shaped to fit into specific electrostatic photocopiers, the CAFC found that note 2 of section VI, HTSUS, was not applicable. The court then stated:

Absent the prohibition of note 2 of section VI, the trial court’s conclusion that the toner cartridges are “parts” of photocopy machines within the meaning of subheading 9009.90.00 is dispositive of the classification issue in this case. As the trial court pointed out, note 2(b) of chapter 90 requires that parts of particular machines, instruments, or apparatus “are to be classified with the machines, instruments, or apparatus of that kind.” That note resolves any conflict between subheading 3707.90.60 and subheading 9009.90.00, and makes clear that subheading 9009.90.00 applies to the toner cartridges at issue in this case.

The file indicates and the protestant confirms that the goods at issue here differ from the goods in Mita Copystar in the following manner. The cartridges in Mita Copystar remained in the machines until the machines were empty of toner, i.e., the cartridges were “united with” the machines for the entire period during which the toner was used by the copying process of the machine. With respect to the goods at issue in this protest, the toner is dispensed into the machines (and the machines may operate while the toner is being dispensed); when the toner has been fully dispensed into the machines, but before the toner has been fully used in the copying process, the containers are removed from the machines and discarded; at that point the toner itself remains in the machines to be used in the copying process. The toner cartridges are designed to mate with the hopper (in most cases) or developing unit and to refill the machine with toner. The cartridges have specific shapes and/or lock into grooves on the hopper. The cartridges and/or the hoppers are fitted with seals, tabs, or shutters. The design of the cartridges thereby improves the way toner is delivered to the photocopier, prevents spillage and possible damage to the machine, and prevents the introduction of the wrong toner into the machine.

As indicated in the FACTS section, each of the subject goods is manufactured to be used with a specific model of photocopy machine.

The CIT in Mita Copystar, 21 CIT 611, 613, 966 F. Supp. 1245, 1247 (1997) discussed the issue of parts and accessories within the context of the toner cartridges at issue there. The court stated:

A part may be defined as an essential portion or integral element of something. Webster’s Third New International Dictionary of the English Language Unabridged 1645 (1986). A part may also be defined as an element of a subassembly that is not normally useful by itself. McGraw-Hill Dictionary of Scientific and Technical Terms 1167 (3rd ed. 1984). The Court finds that Mita’s toner cartridges come within the scope of both definitions. A toner cartridge is an essential portion or integral element of a photocopier because the machine cannot perform its intended function without one. A toner cartridge is also a subassembly not normally used by itself.

An accessory, in turn, may be defined as a part or subassembly that contributes to the effectiveness of a piece of equipment without changing its basic function. Id. at 10. Toner cartridges satisfy the accessory definition as well because they contribute to the effectiveness of the photocopier without changing its basic function. Thus, the Court finds that these authorities likewise support Mita’s argument that a toner cartridge constitutes a part and accessory of the photocopy machine.

The instant toner cartridges are parts or accessories suitable for use solely or principally with electrostatic photocopiers of heading 9009, HTSUS.. In addition, they meet the definitions of parts and accessories put forth by the CIT in Mita Copystar, supra.

Therefore, by application of note 2(b) to Chapter 90, they are classified as such in subheading 9009.90.50, HTSUS, as: “Photocopying apparatus incorporating an optical system or of the contact type and thermocopying apparatus: ... Parts and accessories: ... Other: Parts and accessories, other than photoreceptors or assemblies containing photoreceptors, of electrostatic copying machines of heading 9009.12.” This result is consistent with the CAFC decision in Mita Copystar, supra.

HOLDING:

As detailed above, the toner cartridges are classified in subheading 9009.90.50, HTSUS, as: “Photocopying apparatus incorporating an optical system or of the contact type and thermocopying apparatus: ... Parts and accessories: ... Other: Parts and accessories, other than photoreceptors or assemblies containing photoreceptors, of electrostatic copying machines of heading 9009.12.”

You are instructed to GRANT the protest.

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 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.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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See also:

• Tariff No.: 3707.90.32 - Chemical preparations for photographic uses, nesoi
• Tariff No.: 3707.90.60 - Unmixed products for photographic uses, put up in measured portions or put up for retail sale in a form ready for use
• Tariff No.: 9009.90.50 - Parts of photocopiers of 9009.12, not specified in addl' U.S. note 5 to chap. 90, except photoreceptors or assemblies contng photoreceptors