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HQ 088366

August 2, 1991

CLA-2 CO:R:C:F 088366 ALS

TARIFF NO.: 3707.90.60; 3707.90.30

District Director of Customs
111 West Huron Street
Buffalo, New York 14202

RE: Request for Further Review of Protest 0901-90-950024, dated March 13, 1990, Concerning Toners and Developers

Dear Mr. Brainard:

This decision is on a protest filed against your decisions in the liquidation of series of entries filed at the port of Rochester, N.Y. during January 1 through March, 1990, and 2 entries filed at the port of Buffalo and liquidated in January and February, 1990. The protested entries are identified in the copy of Headquarters Ruling Letter (HRL) 085947 of May 3, 1991 and HRL 088366 of July 15, 1991, enclosed herewith.

The arguments raised in the instant protest/further review request have been previously raised by Xerox in their letter of February 2, 1988 and by counsel for the importer in a letter of December 2, 1989. These arguments were all previously considered in connection with the decision reached in HRL 086199, issued May 2, 1990, pursuant to counsel's request for reconsideration of our prior decision in HRL 084572, issued September 29, 1989. HRL 084572 reconsidered and modified New York Ruling Letter (NYRL) 828241, issued March 11, 1988. HRL 086199, issued on May 2, 1990, affirmed the holding in HRL 084572.

We have reviewed our prior conclusion, as discussed in HRL 084572 and HRL 086199, that the subject toners/developers are not unmixed or single products and are properly classifiable in subheading 3707.90.30, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), and are dutiable at a general rate of 8.5 percent ad valorem. We have concluded that our prior - 2 -
decisions were correct and there is no basis for changing them. We, however, also concluded, pursuant to a detrimental reliance claim filed on behalf of the protestant, that a delay in the implementation of HRL 084572, until December 30, 1990, was appropriate, pursuant to section 177.9, Customs Regulations (19 CFR 177.9), (letters to counsel of May 3, 1991, file 085947 and July 15, 1991, file 088366, enclosed). This delay, in effect, authorized the continued application of NYRL 828241, dated March 11, 1988, through December 29, 1989. Accordingly, the aforementioned letters authorized the liquidation or reliqui- dation, under subheading 3707.90.60, HTSUSA, of the entries identified therein.

Since all the entries which are the subject of the instant protest were filed no later than December 29, 1989, reliquidation of these entries, as to the subject toners and developers, would result in the same rate of duty as the liquidated rate authorized by the aforementioned letters, you are instructed to deny the protest in full.

This protest decision covers only entries, identified in the above letters, filed prior to the delayed effective date of HRL 084572. Appropriate care should be exercised in the liquidation or reliquidation of such entries and protests related thereto since the delay granted in the detrimental reliance claim gives the importer the relief sought in the protest.

A copy of this ruling, along with a copy of HRL 084572, HRL 086199, HRL 085947, and HRL 088366 of July 15, 1991, (copies enclosed) should be attached to the Form 19 Notice of Action furnished the protestant.


John Durant, Director
Commercial Rulings Division

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