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HQ 957497




April 24, 1995

CLA-2 R:C:T 957497 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 4823.90.8500

District Director
U.S. Customs Service
Main & Stebbins Streets
P.O. Box 1490
St. Albans, Vermont 05478

RE: Application for further review of Protest No. 0201-94-100432 under 19 U.S.C., section 1514(c)(2); tariff classification of filler material used in filled rolls for supercalendars.

Dear Sir:

This is a decision on application for further review of a protest timely filed by Trans-Border Customs Service, on behalf of Ahlstrom Jagenberg. We have considered the protest and our decision follows.

FACTS:

The imported goods are sheets, described as felt paper, which have been die-cut or guillotined into octagon shape. After importation, a hole is cut into the sheets so that they may be placed on a steel shaft. The sheets are compressed onto the shaft, which is then fitted onto a lathe and ground to a fine polish. The finished product is referred to as a "filled roll" and is used in supercalendars.

A supercalendar is an apparatus used to impart a high gloss or finish to paper. It consists of a vertical stack of alternating steel and filled rolls through which a paper web is passed. The steel rolls are indented by means of pressure onto the filled rolls, causing a friction or rubbing action which imparts the smooth, glossy appearance to the paper web.

The merchandise was entered in subheading 4805.50.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for felt paper and paperboard. The appraised classification is subheading 4823.90.8500, HTSUS, which provides in part for other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape. The Protestant claims classification in subheading 8420.91.2000, HTSUS, which provides for parts (cylinders) for calendering or other rolling machines for machines for making paper pulp, paper or paperboard.

ISSUE:

What is the proper tariff classification for the instant material?

LAW AND ANALYSIS:

Classification of goods under the HTSUS 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 of chapter notes. Where goods cannot be classified on the basis of GRI 1, the remaining GRI will be applied in order.

The filler material was entered as felt paper of subheading 4805.50, HTSUS. Chapter 48, HTSUS, provides for paper and paperboard and articles thereof. Chapter 48, Note 7, states that:

Headings 4801, 4802, 4804 to 4808, 4810 and 4811 apply only to paper, paperboard, cellulose wadding and webs of cellulose fibers:

(a) In strips or rolls of a width exceeding 15 cm; or

(b) In rectangular (including square) sheets with one side exceeding 36 cm and the other side exceeding 15 cm in unfolded state.

(Emphasis added).

Thus, felt paper of heading 4805 must be entered in the form of strips, rolls, or rectangular (including square) sheets. In this instance, the sheets have been cut into the shape of an octagon. Hence, the sheets have been processed in a manner which removes them from the scope of the heading.

Heading 4823, HTSUS, provides in part for other paper and paperboard, cut to size or shape. The Explanatory Notes to the HTSUS, while not legally binding, represent the Customs Cooperation Council's official interpretation of the Harmonized System. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUS. The Explanatory Note to heading 4823, at page 689, indicates that the heading includes paper and paperboard cut to shape other than rectangular (including square). As the imported sheets meet this description, they are prima facie classifiable in the heading.

Protestant argues that the filler material is properly classified in subheading 8420.91.2000, HTSUS, which provides for parts (cylinders) for calendering or other rolling machines. In support thereof, Protestant contends that the material is capable of no other use than as an element used for the creation of a filler roll. In addition, our attention is directed to the Explanatory Note to heading 8420, at page 1179, which states in pertinent part:

Parts

Subject to the general provisions regarding the classification of parts (see the General Explanatory Note to Section XVI), parts of the machines of this heading are also classified here. These include cylinders clearly identifiable as for use with calendering or rolling machines of this heading. These cylinders may be made of metal, wood or other suitable material (e.g. compressed paper). They may be of various lengths and diameters, may be solid or hollow and, depending on the particular purpose for which they are required, their surface may be polished, corrugated, grained, or may bear engraved patterns. They may also be covered with other materials (e.g., leather, textile fabric or rubber). Metal cylinders are usually so designed that they can be heated internally by means of steam, gas, etc. Sets of cylinders for a particular calendering machine may comprise cylinders of different composition. (Emphasis added).

The Explanatory Note indicates that cylinders for calendering or rolling machines are classifiable as parts within the scope of heading 8420, HTSUS. Protestant reasons that as the filler material will be incorporated into a cylinder for a supercalendering machine after importation, the material should be classified as a part within the ambit of the heading. We note that in the alternative the Protestant could claim that the material is a general part for a paper making machine, pursuant to subheading 8420.99.2000, HTSUS.

The issue presented is whether the goods have been sufficiently advanced so that they lose the character of sheets cut to specific size or shape and take on the character of an article identifiable as a part for a supercalendering machine. In this regard, we note General Rule of Interpretation (GRI) 2(a), which provides in pertinent part that:

Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article.

Therefore, if the filler material has the "essential character" of a cylinder or general part for a supercalendering machine, it is classifiable in heading 8420, HTSUS.

It is the opinion of this office that the cut sheets do not possess the essential character of a part for supercalendars. At the time of importation, the filler material is a semi-manufacture which does not have the approximate shape or outline of a finished part or cylinder. The processing operations occurring after importation, including cutting, compressing, lathing and grinding the material, transform the sheets into the essential shape of the finished part. As goods are classified in the condition imported, we conclude that the filler material is not classifiable in heading 8420. Hence, the imported goods are classifiable as paper cut to specific size or shape, in subheading 4823.90.8500, HTSUS.

HOLDING:

Therefore, based on the foregoing discussion, this protest should be denied in full. A copy of this decision should be attached to the CF 19 Notice of Action to satisfy the notice requirement of section 174.30(a), Customs Regulations.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office 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 of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John A. Durant, Director
Commercial Rulings Division

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