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HQ 952268


February 3, 1993

CLA-2; CO:R:C:T 952268 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 4804.11.0000

K.R. Stewart
Canadian Pacific Forest Products Limited
1 Nicholas Street
Suite 528
Ottawa, Ontario K1N 7B7

RE: Modification of NYRL 869843; tariff classification of Kraft Linerboard, Kraftliner; unbleached v. other; 4804.11.0000 v. 4804.19.0000.

Dear Mr. Stewart:

New York Ruling Letter (NYRL) 869843, dated January 16, 1992, concerned the classification of kraft linerboard imported from Canada under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have had occasion to review this ruling and find that the classification of said linerboard under subheading 4804.19.0000, HTSUSA, is partially in error.

FACTS:

The merchandise at issue are samples of Grade 203 Kraft Linerboard (161 gsm) and Grade 223 Export Kraftliner (300 gsm). The New York Customs Laboratory analyzed these samples and found them to be sheets of uncoated paper composed of 85% or more kraft pulp fibers, bleached and unbleached. In NYRL 869843, Customs found that the samples met the definition of "kraftliner" set forth in Subheading Note 1, Chapter 48, HTSUSA. In addition, the presence of both bleached and unbleached fibers led Customs to believe that classification at the subheading level was proper in the category for kraft paper, other than unbleached. Accordingly, these articles were classified in subheading, 4804.19.0000, HTSUSA.

On May 15 and May 25, 1992, you wrote U.S. Customs, New York, and indicated that the presence of bleached fibers in the samples was inadvertent and in a quantity that you considered to be negligible. You submitted new samples to U.S. Customs, New York, and requested that the merchandise be re-classified as kraft paper, unbleached. The new samples were analyzed and found to meet the specifications of "kraftliner," pursuant to Subheading Note 1, Chapter 48, HTSUSA. In addition, they were found to contain "more than 80% unbleached kraft pulp fibers."

ISSUE:

Are the submitted samples to be classified as kraftliner, unbleached, pursuant to subheading 4804.11.0000, or kraftliner, other than unbleached, pursuant to 4804.19.0000, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes. Where goods cannot be classified on the basis of GRI 1, the remaining GRI will be applied in order. In this instance, the pertinent subheadings provide:

4804 Uncoated kraft paper and paperboard

Kraftliner:

4804.11.0000 Unbleached

4804.19.0000 Other

Chapter 48, Subheading Note 1, provides, in pertinent part:

For the purposes of subheadings Nos. 4804.11 and 4804.19, "kraftliner" means machine-finished or machine-glazed paper and paperboard, of which not less than 80% by weight of the total fibre content consists of wood fibres...(Emphasis added).

Hence, the term "kraftliner" is a term describing a particular form of "paper and paperboard."

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the nomenclature at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the EN when interpreting the HTSUSA.

The General EN to Chapter 48 provides, in pertinent part:

In the Explanatory Notes to this Chapter, except where the context otherwise requires, a reference to "paper" includes references to paperboard (irrespective of thickness or weight).

Paper consists essentially of the cellulosic fibres of the pulps of Chapter 47 felted together in sheet form. (Emphasis added).

As stated above, the term "kraftliner" describes a particular type of "paper and paperboard." The General EN to Chapter 48 makes it clear that the term "paper" and "paperboard" are used interchangeably in the EN. Furthermore, "paper" and "paperboard" consist essentially of the fibres of the pulps described in Chapter 47. It follows that "kraftliner" consists essentially of the fibres of Chapter 47.

The General EN to Chapter 47 provides, in pertinent part:

Wood pulp may be brown or white. It may be semi- bleached or bleached by chemicals or may be unbleached. A pulp should be regarded as semi-bleached or bleached if, after manufacture, it has been subjected to any treatment intended to increase its degree of whiteness (brightness). (Emphasis added).

Subheading Note 1 to Chapter 48 makes it clear that "kraftliner" consists of wood fibres that comprise at least 80% by weight its total fibre content. By implication, the General EN to Chapter 47 provide that wood-pulp in "kraftliner" may be bleached, semi- bleached or unbleached.

Subheading 4804.11.000 is the proper classification for "kraftliner" that is unbleached. Therefore, "kraftliner, other," must cover "kraftliner" that has been bleached or semi-bleached. Pursuant to the EN of Chapter 47, "kraftliner" that has been bleached or semi-bleached describes "kraftliner" that has been subjected to treatment intended to increase its whiteness.

In your correspondence to Customs you indicate that you did not intend for there to be any bleached fibres in your samples. You also aver that only a "negligible" quantity of bleached fibres are present in said samples. These claims are borne out by the fact that the New York Customs Laboratory found your samples to contain "more than 80% unbleached kraft pulp fibres." Moreover, the samples you submitted appear to be unbleached; i.e. the paperboard is brown. We find no reason to believe that you intended to bleach or semi-bleach the wood fibres in your sample. Accordingly, the samples are properly classified under subheading 4804.11.0000, which provides for kraftliner, unbleached.

HOLDING:

The subject merchandise is classifiable under subheading 4804.11.0000, HTSUSA, which provides for uncoated kraft paper and paperboard, in rolls or sheets, other than that of heading No. 48.02 or 48.03, kraftliner, unbleached. This classification is currently Free of duty.

In order to insure uniformity in Customs classification of this merchandise and eliminate uncertainty, we are modifying NYRL 869843 to reflect the above classification effective with the date of this letter. However, if after your review you disagree with the legal basis for our decision, we invite you to submit any arguments you might have with respect to this matter for our review. Any submission you wish to make should be received within 30 days of this letter.

This notice to you should be considered a modification of NYRL 869843 under 19 CFR 177.9(d)(1). It is not to be applied retroactively to NYRL 869843 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your client's merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, NYRL 869843 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, your client may, at its discretion, notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstances. However, please be advised that in some instances involving import restraints, such relief may require separate approvals from other government agencies.

Sincerely,

John Durant, Director

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