CLA-2: RR:CR:TE 964582 ASM
Port Director
U.S. Customs Service
Norfolk, Virginia
RE: Decision on Application for Further Review of Protest No. 1401-00-100095; Concerning the classification of Powdered Wood Pulp
Dear Port Director:
This is a decision on a protest timely filed on August 29, 2000, against your decision in the classification and liquidation of powdered wood pulp entered in three separate entries on February 19, 1999, December 30, 1999, and January 14, 2000.
FACTS:
The subject merchandise is identified as “Arbocel™ BC 200.” Pursuant to the U.S. Customs Laboratory Report #4-1999-10522, this product is described as a fine white powder composed of partially ground chemical bleached sulfate pulp fibers, dissolving grade type.
Upon entry, the subject merchandise was classified under subheading 3912.90.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for “Cellulose and its chemical derivitives, not elsewhere specified or included, in primary forms: Other."
The protestant claims that the proper classification for the subject merchandise is under subheading 4704.29.0000, HTSUSA, which provides for “Chemical woodpulp, sulfite, other than dissolving grades: Semibleached or Bleached: Nonconiferous.”
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ISSUE:
What is the proper classification for the merchandise?
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 heading 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 international Harmonized System, although not dispositive facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The relevant headings for consideration in classifying the subject product are as follows: Heading 4702, HTSUSA, which provides for “Chemical woodpulp, dissolving grades”; heading 4704, HTSUSA, which provides for “Chemical woodpulp, sulfite, other than dissolving grades”; and heading 3912, HTSUSA, which provides for “Cellulose and its chemical derivatives, not elsewhere specified or included, in primary forms”. Of particular importance to this classification is Chapter 47, Note 1, which states:
1. For the purposes of heading 4702, the expression “chemical wood pulp, dissolving grades” means chemical woodpulp having by weight an insoluble fraction of 92 percent or more for soda or sulfate woodpulp or of 88 percent or more for sulfite woodpulp after one hour in a caustic soda solution containing 18 percent sodium hydroxide (NaOH) at 20 degrees C, and for sulfite woodpulp an ash content that does not exceed 0.15 percent by weight.
As noted above, heading 4702, HTSUSA, covers wood pulp of dissolving grade that has been broken down by a caustic soda solution containing chemicals comprised of 18 percent sodium hydroxide. The EN for heading 4702 states that “This heading covers chemical wood pulp of dissolving grades only, as defined in Note 1 to this Chapter.” The EN to 4702 further states that this pulp is used for making “regenerated cellulose, cellulose ethers and esters and products of these materials.” In contrast, heading 4704, HTSUSA, provides for chemical wood pulp, suplphite, other than dissolving grades. According to the EN for heading 4704, products classified in this heading have been exposed to the sulphite process, which generally employs an acid solution. Finally, the EN to heading 3912 notes that cellulose not elsewhere specified or included, in primary forms, falls in this heading along with certain chemical derivatives of cellulose. Thus, heading 3912, HTSUSA, is intended as a residual provision for cellulose and its chemical derivatives when it has not been more specifically provided for elsewhere in the tariff.
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According to the Handbook of Fillers, Extenders and Diluents, by Michael and Irene Ash, “cellulose” is defined as a natural polysaccharide derived from plant fibers for which “wood pulp, bleached” is identified as a synonym for “cellulose”. It is further noted in this definition that its properties are “Colorless to wh. Solid odorless; sl. Sol. In sodium hydroxide sol’n; insol. In water, dil. Acids, and org. solvs.; m.w. 160,000-560,000; dens. = 1.5”. The uses for “cellulose” are set forth as follows:
Fibers: reinforcing filler, visc./sag control for textile, paper, rubber,
Plastics, coatings, grouts; for mfg. Of nitrocellulose, cellulose acetate, etc.; in chromatograpy; as ion exchange material; microcrystalline: as binder-disintegrants in pharmaceutical tableting; colloidal: stabilizer, emulsifier, thickener, dispersant, anticaking agent, binding agent in foods.
Customs Lab Report (4-1999-10522) describes the subject product as a white powder composed of partially grounded chemical bleached sulfate pulp fibers, dissolving grade type. Thus, we note that “Arbocel”™ is composed of bleached wood pulp fibers which have been identified by the importer for use in fiber reinforcement. However,in Headquarters Ruling (HQ) 089456, dated Sept. 10, 1991, Customs stated that in order for wood pulp to be classified as “cellulose” in heading 3912, HTSUSA, the cellulose contained in the wood pulp and its chemical derivatives must have been “obtained by a chemical processing.” This ruling further stated that “This form of pulp, which can be in powder or flake form, is said to be a source for regenerated cellulose, cellulose ethers and esters." Nevertheless, before we can finally determine whether or not the subject product is classifiable as a “cellulose” or “chemical derivative” under heading 3912, HTSUSA, we must first determine whether or not it is more specifically provided for in another heading of the HTSUSA.
In determining whether “Arbocel”™ is classifiable in heading 4702, HTSUSA, or heading 4704, HTSUSA, we note that the Customs Lab Report specifically indicates that the product is composed of “sulfate” pulp fibers, “dissolving grade type”. Accordingly, because the subject product is neither a “sulfite” or “other than dissolving grade”, it cannot be classified in heading 4704, which specifically provides for “Chemical woodpulp, sulfite, other than dissolving grades” (emphasis supplied). Furthermore, the Customs Laboratory has indicated that the sample was tested and resulted in a 94.3 percent by weight sulfate woodpulp residue after digestion, thereby meeting the definition for a “dissolving grade”. Thus, at 94.3 percent sulfate residue, the subject product exceeds the requirement set forth in Note 1, Chapter 47, HTSUSA, which states that for the purposes of heading 4702, the expression “chemical wood pulp, dissolving grades” means chemical wood pulp having by weight an insoluble fraction of 92 percent or more for sulfate wood pulp. Inasmuch as the subject product is a chemical woodpulp of dissolving grade, it has met the requirement set forth in the EN to 4702 which states that “This heading covers chemical wood pulp of dissolving grades only, as defined in Note 1 to this Chapter.” As such, “Arbocel”™ is specifically provided for in heading 4702, HTSUSA, as a “chemical wood pulp, dissolving grades.”
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HOLDING:
The subject merchandise is correctly classified in subeading 4702.00.0040, HTSUSA, which provides for, “Chemical woodpulp, dissolving grades, Sulfate or soda.” The duty is free at the general column one rate.
Since reclassification of the merchandise as indicated above will result in the same rate of duty as claimed, you are instructed to allow the protest in full.
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 reliqudation of the entry or entries in accordance with the decision must be accomplished prior to mailing of the decision.
No later than 60 days from the date of this letter, 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.gov, by means of the Freedom of Information Act, and by other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division