CLA-2 CO:R:C:T 089165 KWM
TARIFF No.: 4804.39.6040
Mr. John F. Manahan
Assistant District Director
United States Customs Service
P.O. Box 1490
St. Albans, Vermont 05478
RE: Application for Further Review of Protest Number
0201-91-100015; Tissue paper; Kraft paper; Wrapping paper;
087165; Protest Number 0201-90-000398, HQ 089166; Protest Number
0712-90-001027, HQ 089377.
Dear Mr. Manahan:
This application for further review was filed in response to
your liquidation of merchandise under subheading 4804.39.6040,
HTSUSA, in a series of entries dating from August 14, 1990
through August 28, 1990. After considering the issues and facts
presented, we find that the protest should be denied. Our
analysis follows.
FACTS:
The protestant here appeals the classification of merchandise
in six (6) separate entries. In entry number 702-0860067-9, the
merchandise was entered under HTSUSA subheading 4805.60.70, which
provides for certain uncoated papers. We do not have the
documentation, and therefore the proposed classification, for the
remaining entries. At the time of entry, the port of St. Albans
re-classified the paper under subheading 4804.39.6040, HTSUSA,
which provides for:
4804 Uncoated kraft paper and paperboard, in rolls or
sheets, other than that of heading 4802 or 4803:
. . .
Other kraft paper and paperboard weighing 150 g/m2
or less:
. . .
4804.39 Other:
. . .
4804.39.60 Other:
4804.39.6040
Other.....................................
The importer timely filed this protest in accordance with Section
177.12 of the Customs Regulations, alleging that the proper
classification for all the merchandise (all six entries) should
be in subheading 4804.39.4040, HTSUSA, which provides for:
4804 Uncoated kraft paper and paperboard, in rolls or
sheets, other than that of heading 4802 or 4803:
. . .
Other kraft paper and paperboard weighing 150
g/m2 or less:
. . .
4804.39 Other:
. . .
4804.30.40 Wrapping paper:
4804.39.4040
Other.....................................
This Application for Further Review was prepared in
conjunction with 2 other Applications for Further Review (AFR's),
regarding protest numbers 0712-90-001027 and 0201-90-000398
(Headquarters Ruling Letters (HRL's) 089377 and 089166,
respectively). The importer and broker are the same in all three
cases. It is our understanding that the merchandise at issue in
all three cases is virtually the same. The importer has included
identical supporting documents in all three cases, and advances
the same arguments in each. Therefore, we have considered all
relevant evidence in deciding HRL's 089165, 089166 and 089377.
Documentation which accompanied protest number
0712-90-001027 indicates that the material used in the
manufacture of the merchandise is recycled paper. The importer
states that the kraft fiber content may vary from sample to
sample, depending on the source of recycled fibers: "[we] are
therefore unable to state that the tissue contains any constant
percentage of any fibers." In other words, while this shipment
may have over 80 percent kraft fibers, other shipments may not.
A shipment may also contain residual traces of materials from the
source paper: Customs Laboratory tested a sample drawn from an
entry at issue in protest number 0712-90-001027, and found that
is contained traces of paraffin wax. One description of the
merchandise is found in a Laboratory report on a sample drawn
from an entry in protest number 0201-90-000398:
. . . sheets of tissue like white paper, weighing 14.8
grams per square meter, and having a thickness of 0.030 mm. [It]
is composed of more than 95% chemical kraft pulp fibers. The
sample is not coated (ash 2.1%), and has a brightness of more
than 77%.
The importer submits in all three cases that "the tissue paper in
question has a basis weight of 9.25 pounds." The merchandise is
referred to in the protest documents as "kraft paper", "tissue
paper", "wrapping paper" or "tissue wrapping paper."
ISSUE:
Is the merchandise classified as kraft paper?
If so, is it further classified as wrapping paper or as
other kraft paper?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) is made in accordance with the
General Rules of Interpretation (GRI's). 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 relevant
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's may be
applied, taken in order.
Both the port and the protestant appear to agree that
heading 4804, HTSUSA, is correct for classifying this merchandise
and we concur. Legal Note 5 to chapter 48, HTSUSA, defines
"kraft paper":
5. In 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.
Emphasis in the original. As we noted above, the Customs
Laboratory found that a sample of the paper at issue contained
more than 95 percent "chemical kraft pulp fibers." The paper
therefore falls within the definition of kraft paper in heading
4804, HTSUSA.
Within heading 4804, merchandise is classified as
"kraftliner", "sack kraft paper", or as "other kraft paper."
The terms "kraftliner" and "sack kraft paper" are defined in
subheading notes 1 and 2 to chapter 48, HTSUSA. The notes do not
address themselves to "wrapping paper", the definition of which
is the central question here. We find the "wrapping paper" as
used in subheading 4804.39.4040, HTSUSA, does not include the
paper at issue.
Protestant's argument for classification as "wrapping
paper" is three-fold: First, protestant argues that tissue is a
type of paper, and that this paper is used for wrapping.
Therefore, it is a "wrapping paper." Second, that the HTSUSA
does not specify what should be included under "wrapping paper"
and that this paper may therefore be included. Third, protestant
attempts to analogize HTSUSA classification to classification
under the Tariff Schedules of the United States (TSUS).
We agree with protestant that tissue paper is a type of
paper, and that the instant merchandise might be used to "wrap"
other goods. We do not, however, agree that these bring the
paper within the scope of subheading 4804.39.4040, HTSUSA.
Wrapping paper, as that term is used in the nomenclature, refers
to a specific type of paper. Not every "paper" which may or may
not be used for "wrapping" is considered "wrapping paper" for
tariff purposes. We note the following definitions from the
Dictionary of Paper:
Kraft paper - A paper made essentially from wood pulp
produced by a modified sulfate pulping process. It is a
comparatively course paper particularly noted for its strength,
and in unbleached grades is used primarily as a wrapper or
packaging material.
Kraft wrapping - A wrapping sheet for general commercial
purposes, made of kraft pulp, M.F. and M.G. finish, in a large
range of basis weights, usually from 25 to 120 pounds.
Wrapping paper - A general term applied to a class of
papers made of a large variety of furnishes on any type of paper
machine and used for wrapping purposes. Strength and toughness
are predominant qualities.
Wrapping tissue - A term applied to a variety of tissues
made for wrapping and packing of merchandise. Basis weights run
from 10 to 17 pounds. Qualities vary in accordance with
particular uses, but most requirements call for a paper that is
strong, well-formed and clean.
(The Dictionary of Paper, Fourth Edition, 1980, page 456). These
definitions support a distinction between wrapping papers versus
tissue which may be used for "wrapping." The heading in question
provides simply for "wrapping paper." We find that these terms
contemplate a product different from that at issue.
Specifically, "wrapping paper" is a heavier, stronger grade of
paper used for exterior wrapping or covering of parcels, and has
a higher basis weight, such as the paper described as "Kraft
wrapping" above. Wrapping paper does not include tissue-like
paper which may be used to cushion or protect articles which are
placed in separate and more substantial containers, such as that
described as "wrapping tissue."
We do not agree with the protestant that the absence of
limiting language permits the inclusion of this paper under the
provision for "wrapping paper." Customs considers many factors
in reaching a classification decision. We will not classify a
product under a heading or subheading which should not properly
include that merchandise, according to the commercial meaning of
the tariff terms and the applicable legal notes. In this case,
we find that subheading 4804.39.4040, HTSUSA, does not properly
include this merchandise, based on the product's weight and
strength, the eventual use of the product, as well as our
understanding of the commercial designation given the paper.
Lastly, we have reviewed the classification of similar
papers under the TSUS, but do not find that it supports the
protestant's position. By enacting the HTSUSA, Congress changed
the classification criteria for imported merchandise.
Classification under the TSUS is not binding in this case. This
paper was not then, and is not in this case, considered a
wrapping paper. In addition, we note that the TSUS-to-HTSUSA
cross reference is not legally binding under the HTSUSA. While
the TSUS-to-HTSUSA conversion was intended to "rate neutral",
some changes in duty rates were enacted. The Customs Service
does not set or influence the duty rates; that responsibility
belongs to the Congress. Customs is charged simply with
enforcing the rates set by Congress.
Paper having a kraft fiber content less than 80 percent
As noted above, the laboratory analysis of this paper
indicated a kraft fiber content in excess of 95 percent.
However, other entries may contain considerably less kraft fiber,
by weight. In each entry, protestant should provide
specifications for each shipment, or be subject to Customs
Laboratory's analysis of the goods' component materials. In
addition, care should be exercised to prevent the presence of
other, stray materials from improperly affecting the
classification of recycled papers.
Because we are concerned here with the classification of
the subject entries, we chose not to speculate on other papers'
classification other than to note that paper containing less than
80 percent kraft fiber (see, note 5, chapter 48, HTSUSA) must be
classified in a heading other than 4804, HTSUSA.
HOLDING:
The protest should be denied.
The merchandise at issue, having over 80 percent by weight
of kraft fibers, is considered a kraft paper of heading 4804,
HTSUSA. However, the merchandise is not considered wrapping
paper. It is classified under subheading 4804.39.6040, HTSUSA,
as other kraft paper.
A copy of this decision should be attached to the CF 19
notice of action to be sent to the protestant.
Sincerely,
John A. Durant,
Director
Commercial Rulings