CLA-2 CO:R:C:G 084572 SS

Tariff NO.: 3707.90.30

Mr. William R. Wilson
Manager, Customs Operations
Centralized Logistics Organization
800 Phillips Road
Building 0205-99P
Webster, N.Y. 14580

RE: Toners and Developers

Dear Mr. Wilson:

In New York Ruling Letter (NYRL) 828241, dated March 11, 1988, our New York office provided you with the tariff classification of toners and developers imported from Japan, for use in copy machines, under the Harmonized Tariff Schedule of the United States (HTSUS).

We have reconsidered NYRL 828241 and we have determined that the subject toners and developers are properly classifiable under subheading 3707.90.30, HTSUS. Our ruling to this effect is set forth below.

FACTS:

The merchandise at issue consists of toners and developers for use in copy machines. The toners are described as follows:

1. The black toner is a mixture composed of styrene/acrylate polymer, acrylic resin, carbon black, polyolefin and amorphous silica. It is imported packaged for retail sale in a form ready for use.

2. The colored toner is composed of styrene, acrylate copolymer, acrylic resin, polyolefin, amorphous silica, and pigment including a phthalocyanine derivative. It is imported packaged for retail sale in a form ready for use.

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The developers are described as follows:

1. The black developer is a mixture of ferrite powder and the black toner.

2. The colored developer is a mixture consisting of nickel powder and a toner which is composed of styrene, acrylate copolymer and a phthalocyanine derived pigment.

ISSUE:

Whether the subject toners and developers are properly classifiable in subheading 3707.90.60, HTSUS, which provides for unmixed products for photographic uses, put up in measured portions or put up for retail sale in a form ready for use; or in subheading 3707.90.30, HTSUS, which provides for other chemical preparations for photographic uses.

LAW AND ANALYSIS:

The relevant statutory provisions for the merchandise at issue are:

3707 Chemical preparations for photographic uses (other than varnishes, glues, adhesives and similar preparations); unmixed products for photographic uses, put up in measured portions or put up for retail sale in a form ready for use:

* * *

3707.90 Other:

3707.90.30 Chemical preparations for photographic uses....................................8.5%

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.................,......................1.5%

The Explanatory Notes (Notes) to 37.07 provide that this heading covers products of a kind used directly in the production of photographic images. Such products include developers to render latent photographic images visible, including developers used for electrostatic document reproduction, and toners to modify the colour of the image. The Notes further state that the products cited in these Notes fall within the heading only when they are:

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(A) Single substances which are:

(i) Put up in measured portions, that is uniformly divided up into quantities in which they will be used, e.g., tablets, small envelopes put up containing the measured amount of powder for one developing bath; or

(ii) In packaging for retail sale and put up with any indication that they are ready for use in photography, whether by label, literature or otherwise (e.g., instructions for use, etc).

Single substances put up other than as above, are classified according to their nature (e.g., as chemical products in Chapter 28 or 29, ...).

or (B) Preparations obtained by mixing or compounding together two or more substances for photographic use. Such preparations remain within the heading whether put up in bulk or small quantities, and whether or not presented for retail sale.

It is stated that the copy process utilizes the developer to make a copy of the latent (electrostatic) image which has been imparted to the photoreceptor. The result is a copy (usually black, though it may be in color) transferred to the copy media, usually plain paper. The developer includes toner in its constituents. As the developer's toner is consumed it is replaced from a supply of toner separately maintained in the machine.

Importer claims that the subject toners and developers are properly classifiable in subheading 3707.90.60, HTSUS. As a basis for this claim, importer contends that "using the language of the [E]xplanatory [N]otes the toners and developers imported by Xerox are "unmixed products" which are individually referenced in the [E]xplanatory [N]otes ; they are put up in measured portions (and for the most part they are also put up for retail sale)."

Importer further claims that the subject toners and developers are products as named in the Explanatory Notes to 3707, HTSUS, in that the developers render latent photographic images visible and the toners modify the colour of the image, that they are single substances, being "material of specified constitutions" in packings for retail sale, and are unmixed products after becoming either developer or toner.

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As a preliminary matter, it is our position that the subject toners and developers are properly classifiable in heading 3707, HTSUS. However, we do not agree with importer's claim that this merchandise is properly in subheading 3707.90.60.

Specifically, we do not agree with importer's claim that the subject merchandise are "products", "single substances" and unmixed products" within the meaning of the Explanatory Notes to heading 3707, HTSUS.

Although the Notes use the word "products" in referring to toners and developers of subheading 3707.90, the word "product" cannot be construed to mean that preparations composed of different chemical substances are "unmixed products" within the meaning of the Notes. That the word "product" is used in a general sense in the Explanatory Notes to 3707.90 is readily apparent by noting that "products" as used herein refer both to substances described as single substances, or (emphasis added) (part (B)) preparations obtained by mixing or compounding two or more substances for photographic use.

The notes to Chapter 28, HTSUS are more instructive in the use of the word "product" in the HTSUS. Note 1 to this chapter states that:

1. Except where the context otherwise requires, the headings of this chapter apply to:

(a) Separate chemical elements and separate chemically defined compounds, whether or not containing impurities;

(b) The products (emphasis added) mentioned in (a) above dissolved in water;

(c) The products (emphasis added) mentioned in (a) above dissolved in other solvents provided that the solution constitutes a normal and necessary method for putting up these products adopted solely for reasons of safety or transport and that the solvent does not render the product particularly suitable for specific use rather than for general use;

(d) The products (emphasis added) mentioned in (a), (b), or (c) above with an added stabilizer necessary for their preservation or transport;

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(e) The products (emphasis added) mentioned in (a), (b), (c) or (d) above with an added antidusting agent or a coloring substance added to facilitate their identification or for safety reasons, provided that the additions do not render the product particularly suitable for specific use rather than general use.

The above Chapter note clearly indicates that the HTSUS does not necessarily use the word "chemical" when referring to chemicals consisting of a single element or compound which may contain impurities, which may be dissolved in water or other necessary solvents, or which may have stabilizers, antidusting or coloring substance. The HTSUS refers to these single elements and compounds and their necessary additives as "products". These "products" are distinct from preparations and mixtures in that the additions to the basic element or compound must be present solely for the purpose of preserving the basic element or compound, and/or facilitating its transport, identification and safety. These additives must not be present for their individual functions, or to enhance the function of the particular element or compound.

In contrast, the subject toners and developers are not single elements or compounds with additives which function as necessary solvents or as stabliziers etc. Rather, they are mixtures or preparations composed of various chemical compounds contributing to the function of developing and toning for photographic use in copy machines.

Importer also claims that the subject toners and developers are "unmixed" within the meaning of the Explanatory Notes to heading 3707, HTSUS, because the subject merchandise will be mixed later in the photocopying machine. However, based on their chemical composition and functions, the subject toners and developers are mixtures. The fact that the merchandise is later mixed with other products after their importation has no relevance or bearing on the proper classification of the subject merchandise. Under the HTSUS, classification is determined according to the the General Rules of Interpretation and the relative Section or Chapter notes.

Mixed photographic chemicals are provided for in Chapter 37, HTSUS, and are specifically excluded from Chapters 28 and 29 by definition. Unmixed products for photographic use, put up for retail sale, are properly classifiable in subheading 3707.90.60, HTSUS. These products would be classifiable in Chapters 28 or 29 if this provision did not exist. The subject toners and developers are mixed products and are properly classified in subheading 3707.90.30, HTSUS.

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HOLDING:

The subject toners and developers are properly classifiable in subheading 3707.90.30, HTSUS, dutiable at a rate of 8.5 percent ad valorem.

NYRL 828241 is modified accordingly.

Sincerely,

John Durant, Director
Commercial Rulings Division

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