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HQ 086743

August 14, 1990

CLA-2 CO:R:C:G 086743 KWM

CATEGORY: CLASSIFICATION

TARIFF No.: 4802

District Director
United States Customs Service
Buffalo, New York

RE: Abiform paper classification under the HTSUSA; Request for Internal Advice No. 11/90

Dear Sir:

FACTS:

We have received your request for internal advice regarding the classification of Abiform paper under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) in light of the Abitibi Price Sales Corporation decision. We concur with your conclusion that the rationale of the Abitibi holding is applicable under the HTSUSA.

ISSUE:

Is the Abitibi decision applicable under the HTSUSA?

LAW AND ANALYSIS:

The Abitibi court was concerned with the distinctions between "writing paper" and "printing paper" because the TSUS provided different classification items for each type. Under the HTSUSA, we are also concerned with the finding that merchandise is or is not "writing paper", since the new nomenclature provides a specific heading for those goods. Neither the legal notes nor the Explanatory Notes provide a definition of "writing paper" for purposes of heading 4802. The Abitibi court considered five factors in its evaluation of the Abiform paper in that case:

1. The general physical characteristics, and 2. The expectations of ultimate consumers, and 3. The channels, class or kind of trade in which Abiform moves, and
4. The economic practicality of using the merchandise for either writing or printing, and
5. Trade recognition of its writing or printing use.

HOLDING:

On the basis of these criteria, the court found that Abiform was not writing paper. None of the above criteria are TSUS specific. Upon review of the Abitibi case and the terms of the HTSUSA, the above factors appear to be applicable under the new nomenclature as well. Further, we agree that the change in tariff schedules does not comprise a change in the law to conform tariff language to be "compatible with the ultimate end use", as the Abitibi court discussed.

Please note that we are not endorsing the above criteria as applicable in every case involving paper which may be considered for classification under subheading 4802.60, HTSUSA, or any other heading of the HTSUSA. In this case, and with regard to these goods, however, we believe that the issue of whether Abiform paper is "writing paper" of subheading 4802.60.1000 is settled, and that the answer is "no". Abiform paper which is the same or substantially similar to that in the Abitibi Price Sales Corp. case is classified under subheading 4802.60.9040, HTSUSA.

Sincerely,

John A. Durant, Director
Commercial Rulings Division


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See also:

• Tariff No.: 4802.60.10 - Writing & cover paper, of which over 10% by weight total fiber content consists of fiber obtained by mechanical process, in rolls or sheets
• Tariff No.: 4802.60.90 - Paper and paperboard for graphic arts purposes, nesi, 10 percent or more mechanical pulp, in uncut rolls