CLA-2 RR:TC:TE 958062 GGD
Port Director
U.S. Customs Service
4477 Woodson Road, Room 200
Saint Louis, Missouri 63134-3716
RE: Decision on Application for Further Review of Protest No.
4503-95-100006, filed February 23, 1995, concerning the
classification of paper
Dear Sir:
This is a decision on a protest timely filed on February 23,
1995, against your decision in the classification and liquidation
of paper, entered from April to August 1994.
FACTS:
At the time of the entries, the protestant contended that
the paper was classifiable in subheading 4805.70.4060, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), the
provision for "Other uncoated paper and paperboard, in rolls or
sheets: Other paper and paperboard, weighing more than 150 grams
per square meter but less than 225 grams per square meter: Other,
Other," with an applicable duty rate of free.
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, -2-
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
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 invoice describes the entered merchandise as
"HP-T, 30 gsm" and "Impregnated Paper," manufactured by Tentok
Paper Co., Ltd. (Tentok), the paper sample submitted with the
protest is described as "HP-TS45." A manufacturer's
specification sheet prepared by Tentok, describes the HP-TS45
sample as weighing 44.5 grams per square meter, and does not
specify the paper's brightness, burst index, ash content, nor the
percentage by weight of the total fiber content obtained by a
mechanical (versus chemical) process.
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. -3-
Chapter 48, HTSUS, covers paper and paperboard, and articles
of paper pulp, of paper, or of 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
(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.
Although the invoice and manufacturer's specifications
reference paper that weighs 30 and 44.5 grams per square meter,
respectively, there is no evidence of record as to the
brightness, burst index, ash content, or processes (i.e.,
mechanical or chemical) by which certain percentages of the pulp
were obtained. Without a showing that the paper conforms to any
of the criteria set forth in note 4 to chapter 48, the paper
cannot be classified in heading 4802, HTSUS.
An examination of entry summaries reflecting previous
shipments of paper manufactured by Tentok and imported by the
protestant (but not subject to the instant protest) reveals -4-
that paper described on invoices as "B-HP" and "TAN-HP" was
entered under subheading 4805.70.4060, HTSUSA (the provision
under which the currently protested entries were entered), and
found to be misclassified. Further, paper manufactured by Tentok
and described as "Impregnated Paper" was shipped to an importer
other than the protestant and entered under subheading
4805.60.3000, HTSUSA (protestant's alternative claim). That
paper was also found to be misclassified. Customs laboratory
testing indicated that the paper was neither impregnated nor
bibulous, but was found to be bleached, uncoated, kraft paper
commonly used for lamination to wood for furniture decoration.
The paper was properly classified in subheading 4804.39.6040,
HTSUSA, the classification assessed on the currently protested
entries.
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."
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).
In light of the lack of evidence that the submitted sample
meets specifications required of paper classified in heading
4802, HTSUS, the record of past transactions involving attempted
entries of merchandise misdescribed/misclassified under heading
4805, and laboratory results showing that the misclassified paper
tested was uncoated kraft paper, we find that the instant
merchandise is properly classified in subheading 4804.39.6040,
HTSUSA, as uncoated kraft paper weighing 150 grams per square
meter or less.
HOLDING:
The merchandise is classified 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 paper board weighing 150 grams per square
meter or less: Other: Other, Other." The applicable duty rate
(in 1994) is 4 percent ad valorem. -5-
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