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HQ 958062




December 28, 1995

CLA-2 RR:TC:TE 958062 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 4804.39.6040

Port Director
U.S. Customs Service
4477 Woodson Road, Room 200
Saint Louis, Missouri 63134-3716

RE: Decision on Application for Further Review of Protest No. 4503-95-100006, filed February 23, 1995, concerning the classification of paper

Dear Sir:

This is a decision on a protest timely filed on February 23, 1995, against your decision in the classification and liquidation of paper, entered from April to August 1994.

FACTS:

At the time of the entries, the protestant contended that the paper was classifiable in subheading 4805.70.4060, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for "Other uncoated paper and paperboard, in rolls or sheets: Other paper and paperboard, weighing more than 150 grams per square meter but less than 225 grams per square meter: Other, Other," with an applicable duty rate of free.

You classified the merchandise under subheading 4804.39.6040, HTSUSA, the provision for "Uncoated kraft paper and paperboard, in rolls or sheets, other than that of heading 4802 or 4803: Other kraft paper and paperboard weighing 150 grams per square meter or less: Other: Other, Other," with an applicable duty rate (in 1994) of 4 (now 3.6) percent ad valorem.

The protestant's current claim is that the goods should be classified in subheading 4802.60.9000, HTSUSA, the provision for "Uncoated paper and paperboard, of a kind used for writing, -2-
printing or other graphic purposes, and punch card stock and punch tape paper, in rolls or sheets, other than paper of heading 4801 or 4803; handmade paper and paperboard: Other paper and paperboard, of which more than 10 percent by weight of the total fiber content consists of fibers obtained by a mechanical process: Other," with an applicable duty rate of free.

In the alternative, the protestant claims that the paper should be classified in subheading 4805.60.3000, HTSUSA, the provision for "Other uncoated paper and paperboard, in rolls or sheets: Other paper and paperboard, weighing 150 grams per square meter or less: Bibulous paper," with an applicable duty rate of free.

Although the invoice describes the entered merchandise as "HP-T, 30 gsm" and "Impregnated Paper," manufactured by Tentok Paper Co., Ltd. (Tentok), the paper sample submitted with the protest is described as "HP-TS45." A manufacturer's specification sheet prepared by Tentok, describes the HP-TS45 sample as weighing 44.5 grams per square meter, and does not specify the paper's brightness, burst index, ash content, nor the percentage by weight of the total fiber content obtained by a mechanical (versus chemical) process.

ISSUE:

Whether the paper is properly classified in heading 4802, HTSUS, as uncoated paper of a kind (principally) used for writing, printing or other graphic purposes; in heading 4805, HTSUS, as other uncoated paper, bibulous paper; or in heading 4804, HTSUS, as uncoated kraft paper.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, 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 Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI. -3-

Chapter 48, HTSUS, covers paper and paperboard, and articles of paper pulp, of paper, or of paperboard. In pertinent part, note 4 to chapter 48 states that heading 4802 covers only paper and paperboard made mainly from bleached pulp or from pulp obtained by a mechanical process and satisfying any of the following criteria:

For paper or paperboard weighing not more than 150 grams per square meter:

(a) Containing 10 percent or more of fibers obtained by a mechanical process, and

1. weighing not more than 80 grams per square meter, or

2. colored throughout the mass; or

(b) Containing more than 8 percent ash, and

1. weighing not more than 80 grams per square meter, or

2. colored throughout the mass; or

(c) Containing more than 3 percent ash and having a brightness of 60 percent or more [Brightness is to be measured by the Elrepho, GE or any equivalent internationally recognized brightness testing method.]; or

(d) Containing more than 3 percent but not more than 8 percent ash, having a brightness under 60 percent and a burst index equal to or less than 2.5 kPa/g/square meter; or

(e) Containing 3 percent ash or less, having a brightness of 60 percent or more and a burst index equal to or less than 2.5 kPa/g/square meter.

Although the invoice and manufacturer's specifications reference paper that weighs 30 and 44.5 grams per square meter, respectively, there is no evidence of record as to the brightness, burst index, ash content, or processes (i.e., mechanical or chemical) by which certain percentages of the pulp were obtained. Without a showing that the paper conforms to any of the criteria set forth in note 4 to chapter 48, the paper cannot be classified in heading 4802, HTSUS.

An examination of entry summaries reflecting previous shipments of paper manufactured by Tentok and imported by the protestant (but not subject to the instant protest) reveals -4-
that paper described on invoices as "B-HP" and "TAN-HP" was entered under subheading 4805.70.4060, HTSUSA (the provision under which the currently protested entries were entered), and found to be misclassified. Further, paper manufactured by Tentok and described as "Impregnated Paper" was shipped to an importer other than the protestant and entered under subheading 4805.60.3000, HTSUSA (protestant's alternative claim). That paper was also found to be misclassified. Customs laboratory testing indicated that the paper was neither impregnated nor bibulous, but was found to be bleached, uncoated, kraft paper commonly used for lamination to wood for furniture decoration. The paper was properly classified in subheading 4804.39.6040, HTSUSA, the classification assessed on the currently protested entries.

Heading 4804, HTSUS, covers "Uncoated kraft paper and paperboard, in rolls or sheets, other than that of heading 4802 or 4803." Note 5 to chapter 48, HTSUS, states that "[i]n this chapter "kraft paper and paperboard" means paper and paperboard of which not less than 80 percent by weight of the total fiber content consists of fibers obtained by the chemical sulfate or soda processes."

Heading 4805, HTSUS, provides for "Other uncoated paper and paperboard, in rolls or sheets." The EN to heading 4805 indicate that the heading covers machine-made uncoated papers and paperboards as manufactured in the form of rolls or sheets other than those included in headings 4801 to 4804 (emphasis in original).

In light of the lack of evidence that the submitted sample meets specifications required of paper classified in heading 4802, HTSUS, the record of past transactions involving attempted entries of merchandise misdescribed/misclassified under heading 4805, and laboratory results showing that the misclassified paper tested was uncoated kraft paper, we find that the instant merchandise is properly classified in subheading 4804.39.6040, HTSUSA, as uncoated kraft paper weighing 150 grams per square meter or less.

HOLDING:

The merchandise is classified under subheading 4804.39.6040, HTSUSA, the provision for "Uncoated kraft paper and paperboard, in rolls or sheets, other than that of heading 4802 or 4803: Other kraft paper and paper board weighing 150 grams per square meter or less: Other: Other, Other." The applicable duty rate (in 1994) is 4 percent ad valorem. -5-

The protest should be denied in full. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

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 to the public via the Diskette Subscription Service, the Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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