CLA-2 RR:TC:TE 958368 GGD
Port Director
U.S. Customs Service
200 St. Paul Place, 28th Floor
Baltimore, Maryland 21202
RE: Decision on Application for Further Review of Protest No.
1303-94-100302, filed October 11, 1994, concerning the
classification of paper
Dear Sir:
This is a decision on a protest timely filed on October 11,
1994, against your decision in the classification and liquidation
of paper, entered from January to June 1994.
FACTS:
At the time of the entries, the merchandise was described on
invoices as "Impregnated Paper." You classified the merchandise
under subheading 4804.39.6040, HTSUSA, the provision for
"Uncoated kraft paper and paperboard, in rolls or sheets, other
than that of heading 4802 or 4803: Other kraft paper and
paperboard weighing 150 grams per square meter or less: Other:
Other, Other," with an applicable duty rate (in 1994) of 4 (now
3.6) percent ad valorem.
The protestant's current claim is that the goods should be
classified in subheading 4802.60.9000, HTSUSA, the provision for
"Uncoated paper and paperboard, of a kind used for writing,
printing or other graphic purposes, and punch card stock and
punch tape paper, in rolls or sheets, other than paper of heading
4801 or 4803; handmade paper and paperboard: Other paper and -2-
paperboard, of which more than 10 percent by weight of the total
fiber content consists of fibers obtained by a mechanical
process: Other," with an applicable duty rate of free.
In the alternative, the protestant claims that the paper
should be classified in subheading 4805.60.3000, HTSUSA, the
provision for "Other uncoated paper and paperboard, in rolls or
sheets: Other paper and paperboard, weighing 150 grams per square
meter or less: Bibulous paper," with an applicable duty rate of
free.
Although the entered merchandise was described as
"Impregnated Paper" manufactured by Tentok Paper Co., Ltd.
(Tentok), the manufacturer's specification sheets (prepared by
Tentok) that accompany each of the 11 grades of paper samples
submitted with the protest, state that the paper is not coated or
impregnated. The manufacturer does not specify the percentage by
weight of the total fiber content obtained by a mechanical
(versus chemical) process for any of the samples. The paper is
said to be used for print sheets that are used in the manufacture
of furniture.
Customs laboratory test results do not indicate that any of
the sample paper is impregnated. Test results reveal that 10 of
the 11 grades of paper weigh between 22.7 and 50 grams per square
meter (the B-HP-S-50 paper weighs 79.6), and that all 11 grades
are made of 100 percent chemical sulfate pulp (i.e., no sample
contains fibers obtained by a mechanical process). The testing
essentially confirmed that each of the samples is classifiable as
uncoated, bleached kraft paper. Each sample's ash content,
brightness, and burst index, are specified below in 2 groups, the
first containing 7 grades, and the second containing 4 grades.
Group of 7
Grade Specifications
U-M30-C Ash Content = 0.8 percent
Brightness = 78 percent
Burst Index = 3.1 kiloPascals per grams per
square meter (kPa/g/square meter)
B-TP-3 (B/L) Ash Content = 0.0 percent
Brightness = 78 percent
Burst Index = 3.1 kPa/g/square meter -3-
(Group of 7 continued)
B-TP-30 Ash Content = 0.0 percent
Brightness = 78 percent
Burst Index = 2.9 kPa/g/square meter
U-HP-S-50 Ash Content = 0.0 percent
Brightness = 78 percent
Burst Index = 4.7 kPa/g/square meter
B-TP-23 Ash Content = 0.0 percent
Brightness = 78 percent
Burst Index = 4.9 kPa/g/square meter
U-HP-30 Ash Content = 0.0 percent
Brightness = 39 percent
Burst Index = 3.3 kPa/g/square meter
B-M30-C Ash Content = 0.0 percent
Brightness = 78 percent
Burst Index = 4.1 kPa/g/square meter
Group of 4
Grade Specifications
B-TP-50 Ash Content = 0.5 percent
Brightness = 67 percent
Burst Index = 2.4 kPa/g/square meter
OP-M-30 Ash Content = 7.6 percent
Brightness = 73 percent
Burst Index = 3.3 kPa/g/square meter
U-TP-30 Ash Content = 0.6 percent
Brightness = 78 percent
Burst Index = 2.2 kPa/g/square meter
B-HP-S-50 Ash Content = 8.2 percent
Brightness = 78 percent
Burst Index = 3.2 kPa/g/square meter
(Weight = 79.6 g/square meter) -4-
ISSUE:
Whether the paper is properly classified in heading 4802,
HTSUS, as uncoated paper of a kind (principally) used for
writing, printing or other graphic purposes; in heading 4805,
HTSUS, as other uncoated paper, bibulous paper; or in heading
4804, HTSUS, as uncoated kraft paper.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRI). The systematic detail
of the harmonized system is such that virtually all goods are
classified by application of GRI 1, that is, 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 may then
be applied. The Explanatory Notes (EN) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and GRI.
Chapter 48, HTSUS, covers paper and paperboard, and articles
of paper pulp, of paper, or of paperboard. Heading 4802, HTSUS,
provides for "Uncoated paper and paperboard, of a kind used for
writing, printing or other graphic purposes, and punch card stock
and punch tape paper, in rolls or sheets, other than paper of
heading 4801 or 4803; handmade paper and paperboard." In
pertinent part, note 4 to chapter 48 states that heading 4802
covers only paper and paperboard made mainly from bleached pulp
or from pulp obtained by a mechanical process and satisfying any
of the following criteria:
For paper or paperboard weighing not more than 150 grams per
square meter:
(a) Containing 10 percent or more of fibers obtained by a
mechanical process, and
1. weighing not more than 80 grams per square meter, or
2. colored throughout the mass; or -5-
(b) Containing more than 8 percent ash, and
1. weighing not more than 80 grams per square meter, or
2. colored throughout the mass; or
(c) Containing more than 3 percent ash and having a
brightness of 60 percent or more [Brightness is to be
measured by the Elrepho, GE or any equivalent
internationally recognized brightness testing method.]; or
(d) Containing more than 3 percent but not more than 8
percent ash, having a brightness under 60 percent and a
burst index equal to or less than 2.5 kPa/g/square meter; or
(e) Containing 3 percent ash or less, having a brightness of
60 percent or more and a burst index equal to or less than
2.5 kPa/g/square meter.
Paper must satisfy any of the above criteria to be eligible
for consideration as paper described in the language of heading
4802, HTSUS. As previously noted, none of the 11 grades of paper
contains fibers obtained by a mechanical process (a requirement
of note 4(a) to chapter 48, HTSUS). Since all of the samples in
the Group of 7 contain 3 percent ash or less, a sample from this
group must satisfy the criteria set forth in note 4(e), i.e., it
must have a brightness of 60 percent or more and a burst index of
2.5 kPa/g/square meter or less. Although 6 of the 7 samples have
sufficient brightness, none has a burst index of 2.5 or less.
The samples which compose the Group of 7 do not conform to note
4(e), nor to any of the criteria set forth in note 4 to chapter
48. Thus, these seven grades of paper cannot be covered under
heading 4802, HTSUS.
With respect to the Group of 4 samples, both grades B-TP-50
and U-TP-30 meet the criteria contained in note 4(e) to chapter
48. Grade OP-M-30 meets the criteria of note 4(c). Grade B-HP-S-50 satisfies the criteria in note 4(b) and (c). In order to be
properly classified within heading 4802, however, the samples
which make up the group of 4 must also be the kind of paper
described in the language of heading 4802, HTSUS, above. Since
the sample paper is not used as punch card stock or punch tape
paper, it must be determined whether the 4 samples are "of a kind -6-
used for writing, printing or other graphic purposes." In
pertinent part, Additional U.S. Rule of Interpretation 1(a)
states that:
a tariff classification controlled by use (other than actual
use) is to be determined in accordance with the use...of
goods of that class or kind to which the imported goods
belong, and the controlling use is the principal use.
Although the paper of this case will likely be printed upon in
preparation for its principal use, it is not of a kind
principally used for writing, printing or other graphic purposes.
The subject paper is principally used as surface sheets in
laminae, allowing for the introduction of resins or other
materials into a lamination process. The paper is very
absorbent, and may be imprinted to give the appearance of wood
grain or other enhancements to furniture and other manufactured
articles. Since the paper's principal use does not conform to
the language of the heading, the samples composing the Group of
4, are not classifiable in heading 4802, HTSUS.
Heading 4804, HTSUS, covers "Uncoated kraft paper and
paperboard, in rolls or sheets, other than that of heading 4802
or 4803." Note 5 to chapter 48, HTSUS, states that "[i]n this
chapter "kraft paper and paperboard" means paper and paperboard
of which not less than 80 percent by weight of the total fiber
content consists of fibers obtained by the chemical sulfate or
soda processes." The assessed classification of all 11 grades of
paper in heading 4804 is consistent with both the manufacturer's
specifications and Customs laboratory testing. The paper is
uncoated kraft paper of which 100 percent of the total fiber
content was obtained by the chemical sulfate process. None of
the 11 samples satisfies both the criteria of note 4 to chapter
48, and the language of heading 4802, HTSUS. The 11 grades of
paper are classifiable in heading 4804, HTSUS.
With respect to the protestant's alternative claim, heading
4805, HTSUS, provides for "Other uncoated paper and paperboard,
in rolls or sheets." The EN to heading 4805 indicate that the
heading covers machine-made uncoated papers and paperboards as
manufactured in the form of rolls or sheets other than those
included in headings 4801 to 4804 (emphasis in original).
Therefore, if paper is found to be uncoated paper classifiable in
heading 4804, it may not be classified in heading 4805, HTSUS. -7-
We find that all 11 grades of paper are properly classified
in subheading 4804.39.6040, HTSUSA, as uncoated kraft paper
weighing 150 grams per square meter or less.
HOLDING:
The merchandise, consisting of 11 separate grades of paper,
is classified in subheading 4804.39.6040, HTSUSA, the provision
for "Uncoated kraft paper and paperboard, in rolls or sheets,
other than that of heading 4802 or 4803: Other kraft paper and
paperboard weighing 150 grams per square meter or less: Other:
Other, Other." The applicable duty rate (in 1994) is 4 percent
ad valorem.
The protest should be denied in full. A copy of this
decision should be attached to the Form 19 to be returned to the
protestant.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office 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 take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS, and to the
public via the Diskette Subscription Service, the Freedom of
Information Act, and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division