CLA-2 CO:R:C:G 086743 KWM
TARIFF No.: 4802
District Director
United States Customs Service
Buffalo, New York
RE: Abiform paper classification under the HTSUSA; Request for
Internal Advice No. 11/90
Dear Sir:
FACTS:
We have received your request for internal advice regarding
the classification of Abiform paper under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) in light of the
Abitibi Price Sales Corporation decision. We concur with your
conclusion that the rationale of the Abitibi holding is applicable
under the HTSUSA.
ISSUE:
Is the Abitibi decision applicable under the HTSUSA?
LAW AND ANALYSIS:
The Abitibi court was concerned with the distinctions between
"writing paper" and "printing paper" because the TSUS provided
different classification items for each type. Under the HTSUSA,
we are also concerned with the finding that merchandise is or is
not "writing paper", since the new nomenclature provides a specific
heading for those goods. Neither the legal notes nor the
Explanatory Notes provide a definition of "writing paper" for
purposes of heading 4802. The Abitibi court considered five
factors in its evaluation of the Abiform paper in that case:
1. The general physical characteristics, and
2. The expectations of ultimate consumers, and
3. The channels, class or kind of trade in which Abiform
moves, and
4. The economic practicality of using the merchandise for
either writing or printing, and
5. Trade recognition of its writing or printing use.
HOLDING:
On the basis of these criteria, the court found that Abiform
was not writing paper. None of the above criteria are TSUS
specific. Upon review of the Abitibi case and the terms of the
HTSUSA, the above factors appear to be applicable under the new
nomenclature as well. Further, we agree that the change in tariff
schedules does not comprise a change in the law to conform tariff
language to be "compatible with the ultimate end use", as the
Abitibi court discussed.
Please note that we are not endorsing the above criteria as
applicable in every case involving paper which may be considered
for classification under subheading 4802.60, HTSUSA, or any other
heading of the HTSUSA. In this case, and with regard to these
goods, however, we believe that the issue of whether Abiform paper
is "writing paper" of subheading 4802.60.1000 is settled, and that
the answer is "no". Abiform paper which is the same or
substantially similar to that in the Abitibi Price Sales Corp. case
is classified under subheading 4802.60.9040, HTSUSA.
Sincerely,
John A. Durant, Director
Commercial Rulings Division