CLA-2: RR:CTF:TCM W968457 KSH
Port Director
U.S. Customs and Border Protection
477 Michigan Ave Room 210 Detroit, MI 48226
RE: Application for Further Review of Protest 3801-03-150056
Dear Port Director: This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 3801-03-150056, filed by A.N. Deringer, Inc., on behalf of its client Cascades Sonoco.
The protest is against Customs and Border Protection’s (CBP) classification of one entry of merchandise identified as kraft linerboard in heading 4811 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Paper, paperboard, cellulose wadding and webs of cellulose fibers, coated, impregnated, covered, surface-colored, surface-decorated or printed, in rolls or rectangular (including square) sheets, other than goods of the kind described in heading 4803, 4809 or 4810.”
On December 17, 2002, protestant entered the merchandise subject to this protest free of duty in heading 4804, HTSUS, which provides for “Uncoated kraft paper and paperboard, in rolls or sheets, other than that of heading 4802 or 4803.” On June 27, 2003, a notice of action was issued reclassifying the merchandise in heading 4811, HTSUS. The merchandise was liquidated under heading 4811, HTSUS, on October 17, 2003.
Protestant filed a protest with an application for further review on October 27, 2003, challenging the classification of the merchandise in heading 4811, HTSUS. Protestant’s AFR request was approved. The protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3) and 19 C.F.R. 174.12 (e)(1).
In support of protestant’s application for further review, protestant alleges that the application for further review involves the existence of an established and uniform practice. Further review is warranted pursuant to 19 CFR §§174.26(b)(1)(ii).
FACTS:
The merchandise at issue is identified as “kraft linerboard”. It is imported in rolls of widths of 152 cm and 107 cm with a basis weight of 161g/m2. In Canada, the “kraft linerboard” is printed in a blue pattern and cut to width per the customer’s specifications. It is used to wrap rolls of newsprint paper.
ISSUE: Whether the paper is classified in heading 4804, HTSUS, as uncoated kraft paper, or in heading 4811, HTSUS, as printed paper. LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 headings and legal notes do not otherwise require, the remaining GRI may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protections’ (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
In support of the application for further review, protestant argues that an
issue exists regarding a uniform and established practice. Traditionally, a uniform practice is established by a finding of the Secretary of the Treasury that such a practice exists. In Heraeus-Amersil, Inc. v. United States, 600 F. Supp. 221 (1984), the Court of International Trade stated that an established and uniform practice could be shown by actual uniform liquidations, even though the Secretary of the Treasury had made no “finding” that such a practice existed. Id. at 226. The essence of such a de facto established uniform practice is a determination by the court that CBP consistently classified a specific type of merchandise under a particular category of the tariff schedules prior to some distinct point in time. See Atari Caribe, Inc. v. United States, 799 F. Supp. 99, 106-07 (1992). In Hereaus- Amersil, the court stated that the factors to be considered in determining an established and uniform practice are: the number of entries resulting in the alleged uniform classifications, the number of ports at which the merchandise was entered, the period of time over which the alleged uniform classifications took place, and whether there had been any uncertainty regarding the classification over its history. In essence, the question is whether a uniform and established practice existed that would lead an importer, in the absence of notice that a change in classification will occur, reasonably to expect adherence to the established classification practice when making an importation.
Although protestant alleges that a "uniform and established practice" exists, it is not premised on any substantive fact. Protestant has provided absolutely no evidence to support its claim. Accordingly, protestant has failed to perfect a claim of a uniform and established practice.
Protestant also argues that the paper is merely printed with a pattern that does not alter the use of the paper. Protestant asserts that the printing is incidental to the use of the paper and that its weight and strength are the most important characteristics. In support of its position, protestant cites to Note 12 to Chapter 48, HTSUS, which states:
12. Except for the goods of heading 4814 or 4821, paper, paperboard, cellulose wadding and articles thereof, printed with motifs, characters or pictorial representations, which are not merely incidental to the primary use of the goods, fall in Chapter 49.
Protestant suggests that because the printing is merely incidental to the primary use of the goods as wrap for rolls of newsprint paper, it should remain in heading 4804, HTSUS.
Note 3 to Chapter 48, HTSUS, provides:
Subject to the provisions of note 7, headings 4801 to 4805 include paper and paperboard which have been subjected to calendering, super-calendering, glazing or similar finishing, false water-marking or surface sizing, and also paper, paperboard, cellulose wadding and webs of cellulose fibers, colored or marbled throughout the mass by any method. Except where heading 4803 otherwise requires, these headings do not apply to paper, paperboard, cellulose wadding or webs of cellulose fibers which have been otherwise processed.
This Note allows certain processing to be done to paper of heading 4804, HTSUS. However, printing is not an acceptable processing. Accordingly, it cannot be classified in heading 4804, HTSUS.
Moreover, Note 7 to Chapter 48, HTSUS provides:
Except where the terms of the headings otherwise require, paper, paperboard, cellulose wadding and webs of cellulose fibers answering to a description in two or more of the headings 4801 to 4811 are to be classified under that one of such headings which occurs last in numerical order in the tariff schedule.
Assuming arguendo that the paper could be classified in heading 4804, HTSUS, it is also classifiable in heading 4811, HTSUS. In accordance with Note 7 to Chapter 48, HTSUS, the paper must be classified in heading 4811, HTSUS.
Note 12 to Chapter 48, HTSUS, is irrelevant as heading 4811, HTSUS, provides for paper in which the printing is merely incidental to its primary use. The EN to heading 4811, HTSUS, provides in relevant part:
Paper and paperboard are classified in this heading only if they are in strips or rolls or in rectangular (including square) sheets, of any size. If they have been cut to any other shape, they fall in later headings of this Chapter (for example, 48.23). Subject to these conditions and the
exceptions mentioned in the heading and those referred to at the end of this Explanatory Note, this heading applies to the following in rolls or sheets:
* * *
(D) Paper, paperboard, cellulose wadding and webs of cellulose fibres, coloured on the surface with a single colour or with different colours, including surface marbled and design printed paper, and those printed with motifs, characters or pictorial representations merely incidental to their primary use and not constituting printed matter of Chapter 49 (see
Note 12 and General Explanatory Note to this Chapter: coloured or printed paper and paperboard).
HOLDING:
Protest number 3801-03-150056 is denied. Pursuant to GRI 1, the printed paper is classified in heading 4811, HTSUS. It is provided for in subheading 4811.90.8000, HTSUS, which provides for “Paper, paperboard, cellulose wadding and webs of cellulose fibers, coated, impregnated, covered, surface-colored, surface-decorated or printed, in rolls or rectangular (including square) sheets, other than goods of the kind described in heading 4803, 4809 or 4810: Other paper, paperboard, cellulose wadding and webs of cellulose fibers: In strips or rolls of a width exceeding 15 cm or in rectangular (including square) sheets with one side exceeding 36 cm and the other side exceeding 15 cm in the unfolded state: Other: Other: Other: Weighing over 30 g/m2.” The column one general rate of duty at the time of entry was 0.4% ad valorem. For goods classified in subheading 4811.90.8000, HTSUS, which qualify for preferential treatment under the North American Free Trade Agreement, the duty rate at the time of entry was Free.
In accordance with the Protest/Petition Processing Handbook, (CIS HB, January 2002, pp 18 and 21), 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 in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division