CLA-2 RR:CR:TC 961068 RH
TARIFF NO: 4804.31.4040
Area Director
New York/Newark Area
U.S. Customs Service
6 World Trade Center, Room 761
New York, NY 10048-0945
RE: Protest number 1001-97-103442; Wrapping Paper; Subheading 4804.31.4040;
Subheading 4804.31.6040; principal use
Dear Sir:
This is in reply to your memorandum dated October 30, 1997, regarding the Application for Further Review of Protest (AFR) number 1001-97-103442 filed by the law firm of Neville, Peterson & Williams, on behalf of P.L. Thomas Paper Co., Inc.
An attorney on my staff met with David C. Williams, counsel for the protestant, and Mr. Richard Green from P.L. Company, Inc., on February 6, 1998, to discuss the issues raised in this case.
FACTS:
On February 14, 1996, the protestant entered numerous reels of paper at the Port of New York under subheading 4804.31.4040 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as wrapping paper. The entry automatically liquidated on February 7, 1997. Merchandise entered under that tariff provision is free of duty.
On March 18, 1997, Customs issued a Notice of Action (Customs Form 29), informing the protestant that the paper would be reclassified under subheading 4804.39.6040, HTSUSA, as other kraft paper, dutiable at 3.2 percent ad valorem. The entry was reliquidated on April 11, 1997.
The protestant timely filed this protest on May 12, 1997, and review is justified under 19 CFR §§174.24(a) and (b).
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A description of the merchandise supplied by counsel is as follows:
[A] commercial grade of paper commonly known as kraft paper. More specifically, the paper can be described as MG pure Swedish natural brown unbleached plain sulphate kraft paper. The paper is made from 100% virgin unbleached Swedish kraft pulp and is uncoated. The paper is made either with a machine finish or a machine glaze; the latter being designated as “MG” finish and was the type imported in this instance. The paper is supplied on rolls maximum of 40" in diameter with varying widths from 49 to 97", each roll weighs about 1,000 kilos. The paper has a minimum basis weight of 38 grs/ms (23#-24x36/500); a caliper reading of .002" +/-; and a high porosity measurement of 40/50 seconds 100cc gurley. Samples of the paper are enclosed with this memorandum. The imported paper was sold to an [sic] manufacturer of reinforced tape which is used to [sic] by shippers and the public to seal cartons.
ISSUE:
Is the paper classifiable under subheading 4804.31.4040, HTSUSA, as wrapping paper, or under subheading 4804.39.6040, HTSUSA, as other kraft paper?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.
Subheading 4804.31.4040, HTSUSA, provides for uncoated kraft paper and paperboard in rolls or sheets, other than that of heading 4802 or 4803, unbleached wrapping paper. Subheading 4804.39.6040, HTSUSA, encompasses other unbleached, uncoated kraft paper and paperboard in rolls or sheets, other than that of heading 4802 or 4803.
Counsel argues that under the principles of GRI 3 the merchandise is classifiable as wrapping paper under subheading 4804.31.4040 because that provision is more specific than the provision for “other” paper in subheading 4804.39.6040.
We disagree with counsel that wrapping paper is classifiable under a GRI 3 analysis. Subheading 4804.30.4040 is an eo nomine provision and a use provision. “An eo nomine designation is one which describes a commodity by a specific name, usually one well known to commerce." 2 R. Sturm, Customs Law and Administration 53.2 (3rd Edition 1990).
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The common meaning of an eo nomine designation is determined by the meaning it had at the time of enactment of the tariff act. United States v. Brager Larsen, 36 C.C.P.A. 1, 3 4, C.A.D. 388 (1948); Davies Turner & Co. v. United States, 45 C.C.P.A. 39, C.A.D. 669 (1957). In their determination of what this "common meaning" encompasses, Customs and the courts may examine the use to which the imported goods are put. United States v. Quon Quon Co., 46 C.C.P.A. 70, 73, C.A.D. 699 (1959).
Counsel provides numerous technical sources to demonstrate that wrapping paper has many uses. A copy of pages 368-374 of the Dictionary and Encyclopedia of Paper and Papermaking (Second Edition 1952), provides in relevant part:
Wrapping papers . . . represent such a varied and extensive category of papers that it is not practicable to provide adequate details about them in one article . . . What one may expect and demand in all wrapping papers, however, each naturally in varying degree according to its value, is that it should, above all, be able to fulfill its task of wrapping, that is to contain and protect.
On page 373, the many uses of wrapping paper, not necessarily complete, are listed as including:
Ammunition; Bag; Biscuit Caps; Black-out; Butter; Cable; Cartridge; Casings; Counter Reel; Cutlery; Drapers Caps; Envelope; Fruit; Grocery; Hosiery; Insulating; Mill Wrappers; Needle; Oil-proof; Orange; Pin; Pottery; Preservative; Ream Wrappers; Sealing; Self-sealings; Shops; Skips; Sugar; Teas; Tissues; Tobacco.
In a decision decided under the former Tariff Schedule of the United States (TSUS), the court in D.C. Andrews & Co. Of Mass. v. United States, 55 Cust. Ct. 354 (1965), addressed the classification of 10 caliper semibleached sulfate paper (otherwise known as kraft paper) used to make tabs and folders. The court rejected the plaintiff’s claim that the paper was wrapping paper and agreed the government that the term sulfate kraft paper is a broad term that embraced many kinds of paper.
Several witnesses testified for on behalf of both parties. One witness for the plaintiff stated that about 85 percent of all coarse paper would fit into the wrapping paper category and he considered bag paper, sack paper, beaming paper, asphalt paper, gumming paper, and waxing stocks to be wrapping.
Another plaintiff’s witness stated that 100 percent sulphate paper was for wrapping and packaging and that “a package is a form of a wrapper” and that the terms are “generally used interchangeably in the trade.”
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A witness for the defense testified that he considered bag paper as a paper used for wrapping purposes and since shipping sack paper is a coarse paper, it might be characterized as wrapping paper in the generic sense. Another witness testified for the defense that his understanding of the general consensus in the paper industry and market was that “wrapping paper is generally considered to be an unbleached kraft paper, brown color, and it can vary from light weight 30 pound up to 120 or 130 pound paper. There are some special uses of wrapping paper
that does [sic] not require additional strength, and that can be a mixed grade of paper and does not necessarily have to be 100 percent kraft paper.” The witness agreed that 100 percent sulphate bleached paper is used for wrapping purposes. He further testified “when you get up to a caliper of 10., you are at the very maximum limits of our wrapping paper,”
The court considered all of the evidence and concluded that there are a myriad of uses of sulphate kraft paper, depending on the weight, thickness, texture, finish and/or color. The court stated that:
And while it appears to have been the purpose of plaintiff to attempt to show that the very substantial use which certain qualities of kraft paper have in the manufacture of bags, cartons, and containers constitutes a use for wrapping purposes, we do not so construe the term “wrapping paper.”
Wrapping paper is defined in Webster’s New World Dictionary of the American Language, 1964 college edition, as “heavy paper made for wrapping parcels, etc.”
The court concluded the following:
[A]ll of the witnesses who were asked to comment upon the matter distinguished paper such as is here involved from the kind of coarse paper which the trade might consider to be wrapping paper and agreed that the subject paper was of a class or kind used for the for the making of tags, labels, and file folders. These are uses which we do not find synonymous with, nor so related to, the process of enclosing and covering a package, as to respond to characterization as wrapping paper uses.
In support of its claim that the paper under protest is a wrapping paper principally used to make sacks and bags, the Protestant submitted an article from Pulp and Paper Week, dated March 3, 1997, which compiled industry statistics which divide kraft bag and sack paper into 3 categories: 1) shipping sack paper (50 lb); 2) grocery sack paper (70 lb); and 3) lightweight bag paper such as used in bakeries, fast-food and convenience stores (30 lb).
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Additionally, the protestant submitted industry statistics from the American Forest and Paper Association which show that the annual production in the United States of unbleached kraft paper is roughly 2,000,000 tons. The protestant further claims that industry experts estimate that approximately 25 percent of the unbleached paper (500,000 tons) is light weight or under 60 gms and used to make small bags and sacks. The remaining 1,500,000 tons is over 60 gms and is used for making heavier sacks such as grocery bags and industrial paper sacks for items such as cement or fertilizer.
In this case, however, the strongest evidence of the use of the paper under protest is a letter from the protestant to Customs in response to a request for information, which lists “all” of its customers as well as what they are manufacturing from the paper. The protestant lists seven customers, four of which manufacture the paper into tape. One company twists the imported paper into yarn. Another uses the paper as wrap for wires inside car doors to prevent rattling and, finally, the other company spins and weaves the paper into mesh for potato bags.
The uses of the imported paper are not synonymous with, nor related to the process of enclosing and covering a package and do not constitute wrapping paper.
HOLDING:
The protest should be DENIED. The paper under protest is classifiable under subheading 4804.39.6040 of the 1996 HTSUSA, as other kraft paper. It is dutiable at the general column one rate of 3.2 percent ad valorem.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to the mailing of this decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division