CLA-2; CO:R:C:T 953244 ch
District Director
Seattle (Area/Port of Blaine)
Attn: Protest Reviewer
9901 Pacific Highway
Blaine, WA 98230
RE: Application for further review of Protest No. 3004-92-
100070 under 19 U.S.C., section 1514(c)(2); paper;
coated v. uncoated; Reprobond; Dillingham.
Dear Sir:
The above-referenced protest was forwarded to this office
for further review. We have considered the protest and our
decision follows.
FACTS:
The subject item is identified as "Reprobond" paper. This
merchandise consists of sheets of white semi-translucent paper
weighing 61.8 grams per square meter, having a thickness of 0.065
mm, composed of 100 percent bleached and unbleached pulp fibers
and having a grease resistance greater than 1800 seconds. Each
sheet contains traces of kaolin (China clay) on its surface.
In NYRL 860858, paper substantially similar to the instant
article was classified under subheading 4810.11.9000, which
provides for other clay-coated paper of a kind used for writing,
printing or other graphic purposes, containing not more than 10
percent by weight of mechanical-process fibers, weighing not more
than 150 grams per square meter. Based on this ruling, the
subject merchandise was liquidated under the identical
subheading.
ISSUE:
Whether Reprobond paper is classified under subheading
4810.11.9000, HTSUSA, which provides for other paper and
paperboard, coated on one or both sides with kaolin (China clay)
or other inorganic substances, or subheading 4806.20.0000,
HTSUSA, which provides for, inter alia, greaseproof papers and
other glazed transparent or translucent papers, in rolls or
sheets?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI). GRI 1 provides that
classification is determined first in accordance with the terms
of the headings of the tariff and any relative section or chapter
notes. Where goods cannot be classified on the basis of GRI 1,
the remaining GRI will be applied in order.
Heading 4810, HTSUSA, provides for:
Paper and paperboard, coated on one or both sides with
kaolin (China clay) or other inorganic substances, with
or without a binder, and with no other coating, whether
or not surface-colored, surface-decorated or printed,
in rolls or sheets. (Emphasis added).
This language indicates that kaolin and other inorganic
substances are regarded as coating agents when applied to the
surface of paper or paperboard.
Prior to May 20, 1991, it was our position that any
application of coating agents to the surface of paper or
paperboard would render it "coated" for the purposes of heading
4810. In NYRL 860858, dated April 15, 1991, the New York Customs
Laboratory noted the presence of kaolin and titanium dioxide (an
inorganic substance) on the surface of the article at issue in
that ruling. Accordingly, that merchandise was regarded as
"coated" for classification purposes.
However, in E. Dillingham, Inc. v. United States, Slip Op.
91-40, dated May 20, 1991, the Court of International Trade
discussed the meaning of this term under the Tariff Schedules of
the United States (TSUS). In that case, the Court found that in
order for paper to be "coated," sufficient coating material must
be applied to constitute a "layer." A "layer" is formed by the
creation of "a new paper surface." Such a surface must be
"smoother and more uniform than the previous surface" in order to
meet the common industry understanding of the term "coated."
These findings represented a rejection of our position with
regard to this issue.
Although decided under the TSUS, we are of the opinion that
the discussion of "coated" paper in Dillingham is applicable to
"coated" paper under the HTSUSA. We have asked the New York
Customs Laboratory to re-examine the merchandise at issue in NYRL
860858 in light of the standards enunciated in Dillingham. Under
these standards, the laboratory has determined that said
merchandise is "not coated." Hence, contemporaneous with this
ruling letter, we are revoking NYRL 860858 and are re-classifying
that merchandise to reflect this fact. It follows that we need
not classify the instant item as "coated paper."
Subheading 4806.20.0000, HTSUSA, provides in part for
greaseproof papers. The Explanatory Notes (EN) to heading 4806
state, in pertinent part, that greaseproof papers are
"translucent and to a large extent impervious to oil and grease."
The New York Customs Laboratory has determined that the subject
merchandise meets these specifications. Accordingly, it is
classifiable under this subheading.
HOLDING:
Therefore, based on the foregoing discussion, this protest
should be granted in full, and the merchandise should be re-
liquidated under subheading 4806.20.0000, HTSUSA. A copy of this
decision should be attached to the CF 19 Notice of Action to
satisfy the notice requirement of section 174.30(a), Customs
Regulations.
Sincerely,
John Durant, Director