CLA-2 CO:R:C:G 086199 JGH

TARIFF: 3707.90.3000

Mr. James B. Clawson
International Business-Government Counsellors, Inc.
818 Connecticut Avenue, N.W.
12th Floor
Washington, D.C. 20006

RE: Xerox Process Toners and Developers

Dear Mr. Clawson:

We have received your correspondence dated December 22, 1989, requesting reconsideration of Headquarters Ruling Letter (HRL) 084572. We have reviewed the facts of the case and have determined that HRL 084572 represents the proper classification of the subject toners and developers.

HRL 084572 provided for the classification of Xerographic process toners and developers under the Harmonized Tariff Schedule of the United States (HTSUS). The facts and analysis of the case are set out at length in HRL 084572, in an original submission from Xerox Corporation dated February 2, 1988, and in you letter of December 22, 1989.

Further, our response to the issues you raised in your submission dated December 22, 1990, is set forth below.

We agree with your statement that "the term products" as used in heading 3707 encompasses any substance, whether element, compound, mixture . . . which is used to perform one of the photographic functions noted in the Explanatory Notes." In fact, in HRL 084572, we specifically stated that "'products' as used herein [the Explanatory Notes] refer both to substances described as single substances, or (emphasis added) . . . preparations obtained by mixing or compounding two or more substances for photographic use."

- 2 -

The Explanatory Notes to heading 3707, HTSUS, state that this heading covers products of a kind used directly in the production of photographic images. Such products include:

(1) Emulsions . . . .

(2) Developers to render latent photographic images visible (e.g., hydroquinone, catechol . . .).

(3) Fixers . . . (e.g., sodium thiosulphate (hypo), sodium metabisulphite . . .).

(4) Intensifiers and reducers . . . (e.g., potassium dichromate, mercuric chloride . . . ).

(5) Toners . . . (e.g., sodium sulphide).

* * *

All the products cited above fall within the heading only when they are:

(A) Single substances which are:

(i) Put up in measured portions that is uniformly divided into the quantities in which they will be used . . . ; or

(ii) In packings for retail sale and put up with any indication that they are ready for use in photography. . . .

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 preparation remain within the heading whether put up in bulk or small quantities, and whether or not presented for retail sale.

In your submission you interpret the above language to mean that a "toner or developer would be classified under HTS heading 3707, if specifically packaged or put up as specified in (A) above. Mixtures of two or more "substances for photographic use" (e.g. a combination of developer-fixer) would fall within the heading pursuant to (B), even if imported in bulk." We agree with this interpretation with regard to (A) to the extent that the developer or toner or any other of the above products is only

- 3 -

a chemical compound, and not a chemical compound mixed with other substances (including other chemical compounbds), for photographic use and put up pursuant to heading 37.07, HTSUS. It is clear that the products of (A) above are single chemical compounds. This is supported by the above exemplars of the products included under 37.07, HTSUS. For instance, the exemplars for developers include hydroquinone, catechol, and not hydroquinone or catechol mixed with other substances.

Stated differently, the products of (A) are not a mixture of a chemical compound and other substances, as is the composition of the toners and developers under consideration. Rather, they are single chemical compounds which would be classifiable in Chapter 28 or 29, but because they are specifically put up for photographic use pursuant to heading 3707, HTSUS, they are classified within this heading.

In contrast, the facts submitted in HRL 084572 clearly state that the subject toners are composed of chemical compounds and other substances, including other chemical compounds. Thus, they are preparations obtained by mixing or compounding together two or more substances for photographic use. Such a product is clearly and specifically described in (B) above.

You also claim that mixing the toner and developer is required before there can be a photographic use. Further, you assert that this fact was not stated in HRL 084572. This fact was considered in determining our position in HRL 084572, and has been reconsidered in the instant case. However, this fact is not in dispute. The mixing of the compounds, products, elements or substances for photographic use is not the issue in the instant case. The issue in the instant case is whether the subject products are unmixed or single substances for purposes of heading 37.07, HTSUS

As we discussed in HRL 084572, and again in the instant case, the subject toners are not unmixed or single products and are properly classifiable in subheading 3707.90.30, HTSUS, dutiable at a rate of 8.5 percent ad valorem.

Accordingly HRL 084572 is affirmed.


Sincerely,

Jerry Laderberg
Acting Director
Commercial Rulings Division