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HQ 966673




December 22, 2003

CLA-2 RR:CR:GC 966673AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 8473.30.30, 8473.30.50

Port Director
U.S. Customs and Border Protection
P.O. Box 3130
Laredo, TX 78044-3130

RE: Internal Advice; spent inkjet and toner printer cartridges

Dear Port Director:

This is in regard to Internal Advice (I/A) request 03/014, dated June 30, 2003, initiated by letter, dated June 6, 2003, from HP Global Trade, regarding the classification of spent inkjet and toner printer cartridges, under the Harmonized Tariff Schedule of the United States (HTSUS). We have also considered arguments presented in a telephone conference on November 20, 2003 and supplemental submission dated December 5, 2003.

FACTS:

The merchandise consists of spent inkjet and toner printer cartridges imported for recycling purposes. The cartridges are intact upon entry into the U.S. The inkjet cartridges are composed of plastics, either polysulfone (PSU) or polyethylene terephthalate (PET). They also contain a flex material consisting of copper, gold, silver, and/or palladium. The toner cartridges are composed of plastic, primarily polystyrene, and metals, primarily ferrous iron/steel. All of the cartridges may contain residual ink or toner.

The imported cartridges are not damaged, defective, or incapable of being refilled. Statistics provided by counsel show that 35% of spent cartridges are refilled for reuse. Our Internet research confirms that this is a significant practice. However, the importer, a maker of new toner cartridges, warrants the merchandise for single use and does not recommend refurbishing or refilling the cartridge. Instead, the importer provides a recycling service that imports the spent cartridges for recovery and sale of the following products: (1) a mixture of plastics; (2) a mixture of precious metals; and (3) a mixture consisting primarily of ferrous iron/steel.

ISSUE:

Are spent, but intact, inkjet and toner printer cartridges classified as parts of machines of heading 8471, or as waste and scrap of heading 3915?

LAW AND ANALYSIS:

Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to the GRIs.

In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

3915 Waste, parings and scrap, of plastics:

3915.90.00 Of other plastics

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:

8473.30.30 Other parts for printers, specified in additional U.S. note 2 to this chapter

8473.30.50 Other

Additional U.S. Note 2 to Chapter 84 states, in pertinent part, the following:

Subheadings 8473.30.30 and 8473.30.60 cover the following parts of printers of subheading 8471.60:

(c) Laser imaging assemblies, incorporating more than one of the following: photoreceptor belt or cylinder, toner receptacle unit, toner developing unit, charge/discharge units, cleaning unit;

(e) Ink jet marking assemblies, incorporating more than one of the following: thermal print head, ink dispensing unit, nozzle and reservoir unit, ink heater;

EN 39.15 states, in pertinent part, that "The products of this heading may consist of broken or worn articles of plastics, clearly not usable for their original purposes, or of manufacturing waste (shavings, dust, trimmings, etc.)."

There is no definition of waste and scrap in the text or ENs to Chapter 39. However, several cases have discussed the definition of waste and scrap. For instance, in Latimer v. United States, 223 U.S. 501 (1912), the Court held that broken tobacco leaves used in making a cheaper grade of tobacco products were not waste because they were used for the main purpose of making tobacco products. Likewise, in Mawer-Gulden-Annis (Inc.) v. United States, 17 CCPA 270, T.D. 43689 (1929), the court held that imperfect or broken olives, not salable as perfect or whole or stuffed olives, were not waste. The court reached its decision by noting that while inferior to perfect or whole olives, they nevertheless possessed the same food qualities and some of the uses of whole, pitted green olives. In citing these cases, the court in the United States v. David Studner, et al., 57 C.C.P.A. 122, 427 F.2d 819, 821, C.A.D. 990 (1970), approved the following definition of waste: "[T]hat which has no original value or no value for the ordinary or main purpose of manufacture" (emphasis in the original). This reading comports with the language of EN 39.15.

These definitions center on the inability of the waste or scrap to retain any of its original purpose. HP Global Trade cites HQ 952994, dated January 6, 2003, for the proposition that the inability to be reused is not necessary for classification as waste or scrap. We disagree with this reading of that ruling. In that case, the merchandise was defective and irreparable telephone equipment imported for recovery of metal and plastic. We stated that mutilation of such equipment is unnecessary to find that such equipment is classifiable as waste and scrap.

The instant merchandise is distinguishable. The instant cartridges are not irreparable or defective like the telephone equipment in HQ 952994. Internet research produces numerous sites which market refilled cartridges. The Internet sites we found, that purchase used toner and inkjet cartridges, claim to simply replace small parts if necessary and refill them. These sites also provide money back guarantees on the cartridges' performance. Certain after-market research indicates that a significant portion (thirty-five percent) of spent cartridges are refilled for use as toner cartridges. HQ 561412, dated January 31, 2000, discusses just such an operation and finds that disassembling, reassembling and filling spent cartridges does not result in a tariff shift to subheading 8473.30.30, HTSUS, from any other heading. As imported, the spent inkjet and toner printer cartridges, although processed for recoverable materials, are indistinguishable from cartridges which are refurbished or refilled and reused in printers. Hence, we find the toner cartridges in the instant case are well suited to refurbishment and refilling even if not warranted by the manufacturer for such reuse. It is their suitability for such use as imported, rather than their actual use in the U.S., that determines whether the instant spent cartridges are described by heading 8473.

Without being damaged or defective, the cartridges are designed and dedicated for use as a part of a printer. In Technicolor Videocassette, Inc. v. U.S., 19 C.I.T. 942; 896 F. Supp. 1220 (1995), the court concluded that newly manufactured empty video cassettes without the magnetic tape media, are "integral and constituent parts vital to the functioning of VCRs" and ruled for classification as a part of a VCR in heading 8522, HTSUS. We believe the instant merchandise is virtually indistinguishable from the video cassette housing in that case. The instant merchandise is the housing for the ink used in a machine of Chapter 84.

In short, the cartridges belong to the class or kind of merchandise that are described as parts of printers, albeit containing residue from prior use and without the ink. The spent cartridges are identifiable as a part of a printer and dedicated to use as such. Therefore, the terms of heading 8473, HTSUS, the provision for parts and accessories of the machines of heading 8471 describes this merchandise.

HOLDING:

The subject toner cartridges are classified in subheading 8473.30.30, HTSUS, the provision for "Parts and accessories (other than covers, carrying cases and the like) suitable for use solely or principally with machines of headings 8469 to 8472: Parts and accessories of the machines of heading 8471: Not incorporating a cathode ray tube: Other parts for printers, specified in Additional U.S. Note 2 to this chapter" based on the picture and diagram provided.

The inkjet cartridges are likewise classified in 8473.30.30, HTSUS, provided they meet the requirements of Additional U.S. Note 2 to Chapter 84. If not, they are classified in subheading 8473.30.50, HTSUS, the provision for "Parts and accessories (other than covers, carrying cases and the like) suitable for use solely or principally with machines of headings 8469 to 8472: Parts and accessories of the machines of heading 8471: Not incorporating a cathode ray tube: Other"

You are directed to mail this decision to the internal advice applicant, no later than 60 days from the date of this letter. On that date 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.cbp.gov, by means of the Freedom of Information Act, and other public methods of distribution.

Sincerely,

Myles B. Harmon, Director

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