CLA-2 RR:CR:TE 962032 RH
Port Director
United States Customs Service
300 South Ferry Street
Los Angeles, CA 90731
RE: Protest number 2704-98-100060; heading 4804; heading 4811; wrapping paper
Dear Sir:
This is in reply to your memorandum of July 1, 1998, regarding the Application for Further Review of Protest (AFR) number 2704-98-100060. On February 12, 1998, Neutral Customs Broker, Inc., timely filed the AFR on behalf of Arjo Wiggins Medical, Inc., against a rate increase assessed on the merchandise in question.
Review of the AFR is warranted pursuant to 19 CFR §174.23.
FACTS:
On October 21, 1997, the protestant entered 295 cartons of “Medical Paper” into the United States at the Port of Los Angeles under subheading 4811.39.4040 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as paper or paperboard coated, impregnated or covered with plastics.
Customs issued a Notice of Action (CF 29) on December 5, 1997, advising the protestant of a rate advance on the dutiable value of the entered merchandise. An explanation of the action read:
Entered at 4811394040/Free. Liquidation will be at 4805.60.9040/2.8%. All future entries of this merchandise must be classified accordingly and must be described accurately (not as “medical paper”).
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In the protest action, however, the protestant claims that the merchandise is classifiable as uncoated kraft wrapping paper under subheading 4804.39.4040, HTSUSA. The protestant states that the merchandise under consideration is known as “Ethypel or Propypel (paper).” It is imported in rolls or sheets of white, green or blue. The rolls will be greater than 15 cm in width.
The paper is composed of 100 percent “NBSK” wood cellulose fibers. It is not coated, impregnated or creped. It weighs between 35 and 105 gsm and is 3 micrometers or less in thickness. The paper is bleached uniformly throughout the mass and more than 95 percent of the total fiber content is fiber obtained by a chemical process. The protestant describes the manufacturing process as follows:
The preparation of stock NBSK, which is a wood pulp base that comes in board form from a pulp factory, is broken up and placed in a paper digester to separate the individual pulp fibers for paper making. The stock then moves through a large number of filters to purify the slurry before its placement on the paper machine. Once the slurry is moved toward the paper machine it is dropped onto a moving web that separates the water from the pulp fibers and begins the process of drying. It goes through a large number of drying cylinders and a size press that begin to make the material into the desired substance. The paper product is then reeled up and is prepared for transportation and sales.
The protestant further states that the primary use of the paper is as a base component of flexible packaging application used for wrapping medical and dental instruments before sterilization in an autoclave.
Customs liquidated the entry on December 29, 1997.
ISSUE:
Is the paper under protest classifiable in heading 4805.60.9040, HTSUSA, as other uncoated paper and paperboard, in rolls or sheets, or under heading 4804.39.4040, HTSUSA, as wrapping 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. Additionally, in interpreting the terms of the headings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes, which, although not legally binding, are recognized as the official interpretation of the Harmonized System at the international level.
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Customs liquidated the paper in question under subheading 4805.60.9040, which encompasses “Other uncoated paper and paperboard, in rolls or sheets, not further worked or processed than as specified in note 2 to this chapter: Other paper and paperboard, weighing 150 g/m² or less: Weighing over 30 g/m²: Other.”
Classification proposed by the protestant is heading 4804.39.4040, which encompasses 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: Other: Wrapping paper: Other.”
Subheading 4804.39.4040 is an eo nomine by 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).
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).
Additional U.S. Rule of Interpretation 1 reads, in relevant part:
(a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use;
In a decision under the predecessor to the HTSUSA, the Tariff Schedules of the United States Annotated (TSUSA), but still relevant, 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. There 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 Headquarters Ruling Letter (HQ) 089166, dated September 5, 1991, we stated that 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. The definition of “wrapping paper” in the Dictionary of Paper, Fourth Edition (1980) reads:
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 predominate qualities.
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The protestant cites New York Ruling Letter (NY) 858258, dated December 28, 1990, in support of its claim that the paper is question is wrapping paper. In that ruling, Customs classified Packraft Non Opaque B 40g” under subheading 4804.39.40, HTSUSA. The paper was uncoated and composed of chemical bleached kraft pulp fibers. It weighed 33.4 grams per square meter and was imported in rolls exceeding 15 cm in width. In that ruling, however, Customs established that the paper was used for wrapping purposes, a fact which has not been shown in this case.
In this case, the designated use of the imported paper is to make sealed containers to house medical instruments. Thus, the paper itself becomes a package; it is not used to wrap a package. Moreover, the record contains no evidence establishing that the imported paper falls within the class or kind of paper used for wrapping purposes. Accordingly, we find that the paper was correctly classified under subheading 4805.60.9040.
HOLDING:
The protest should be DENIED. The paper under protest is classifiable under subheading 4805.60.9040, HTSUSA, which provides for “Other uncoated paper and paperboard, in rolls or sheets, not further worked or processed than as specified in note 2 to this chapter: Other paper and paperboard, weighing 150 g/m2 or less: Weighing over 30: Other.” It is dutiable at the 1997 general column one rate of 2.8 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