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HQ H005111




August 20, 2007

CLA-2 OT:RR:CTF:TCM H005111 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 4811.59.4040

Port Director
U.S. Customs and Border Protection
101 East Main Street
Norfolk, VA 23510

RE: Application for Further Review of Protest 1401-05-100303

Dear Port Director:

This is in reply to your correspondence dated April 10, 2006, forwarding the Application for Further Review of Protest (AFR) 1401-05-100303, filed by Tompkins & Davidson, LLP, on behalf of its client, Sopal SA. The protest is against Customs and Border Protection’s (CBP) classification and liquidation of one entry of “Herculink #26” paper under subheading 3921.90.5050 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

On December 16, 2004, protestant entered the merchandise subject to this protest in subheading 4811.59.4040, HTSUSA, 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, of any size, other than goods of the kind described in heading 4803, 4809 or 4810: Paper and paperboard, coated, impregnated or covered with plastics (excluding adhesives): Other: 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.” The merchandise was liquidated on May 27, 2005, in subheading 3921.90.5050, HTSUSA, which provides for “Other plates, sheets, film, foil and strip, of plastics: Other: Other: Other, Other.”

On March 24, 2005, CBP issued a Notice of Action giving notice of a rate advance and proposing classification under subheading 3921.90.5050, HTSUSA. On August 18, 2005, protestant filed a protest and application for further review against the classification and liquidation of the merchandise in subheading 3921.90.5050, HTSUSA. The protest was timely filed. On December 20, 2005, protestant’s AFR request and protest were denied. On January 27, 2006, protestant filed a request to set aside the denial of further review and void denial of the protest pursuant to 19 U.S.C. 1515(c). On March 22, 2006, CBP granted protestant’s request.

FACTS:

The merchandise at issue is identified as “Herculink #26” (Herculink) paper. It is constructed from cross laminated airy fabric (CLAF) laminated over a polyethylene extrusion layer onto a layer of bleached, chemical kraft pulp paper. The CLAF is a polyethylene open mesh nonwoven fabric. The three layers are laminated and forced together under pressure by being put through various rolls. The result is a product of varying thickness. The Herculink paper will subsequently be converted into envelopes.

A sample of Herculink paper examined by CBP’s Office of Laboratories and Scientific Services evidenced a thickness averaging 0.22mm and a weight of 106.2g/m2. In a supplemental laboratory report dated May 31, 2005, the sample’s plastic components comprised 0.1453mm or 68% of the thickness of the sample while the paper comprised 0.0678mm or 32% of the thickness.

ISSUE:

Whether the Herculink paper is classified in heading 4811, HTSUSA, as paper covered, impregnated or coated with plastics or in heading 3921, HTSUSA, as “Other plates, sheets, film, foil and strip, of plastics.”

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." In the event that 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, in order.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

Protestant argues that specifications and measurements deduced from independent laboratory testing establish that the scrim layers are substantially thinner than the measurements of the paper layer. Protestant also maintains that the Scanning Electron Microscopy method of evaluation employed by the independent laboratory more accurately measured the individual components of the merchandise than the “TAPPI” (thickness of paper and paperboard) method purported to be used by CBP laboratories. Protestant cites to the findings in the independent laboratory report that 97% of the product is composed of plastics and paper with the paper composing the majority of the thickness and concludes that the 3% of the product that may have thicker plastic than paper should be ignored for purposes of classification. Alternatively, protestant asserts that a GRI 3(b) essential character analysis should be employed whereby the essential character is imparted by the paper.

Initially we note that pursuant to 28 U.S.C. § 2639(a)(1) (1994), CBP enjoys a statutory presumption of correctness. Thus, an importer has the burden to prove by a preponderance of the evidence that a CBP decision was incorrect. Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998). Furthermore, "[i]t is well settled that the methods of weighing, measuring, and testing merchandise used by [CBP] officers and the results obtained are presumed to be correct." Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 F.2d 1396, 1398 (1973). Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP's laboratory results are erroneous, there is a presumption that the results are correct. See Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (1978).

In cases such as this, where an outside laboratory report is submitted that differs from the CBP laboratory report, the CBP laboratory report cannot be disregarded and takes precedence over the outside report. See, HQ 957282, dated March 28, 1995 (citing Customs Directive 099 3820-002, dated May 4, 1992). CBP cannot rely on outside reports that may or may not utilize different testing methods and still remain consistent in its tariff classification. Therefore, CBP must rely on its own laboratory analysis when determining the proper tariff classification of merchandise and need not consult an independent laboratory. See HQ 963748, dated November 20, 2000. Protestant has not conclusively shown that the testing method used by the CBP laboratory is in error or that the CBP's laboratory results are erroneous, protestant simply argues that there is an allegedly better testing method. Therefore, protestant has not overcome the presumption that the results are correct.

When, by application of rule 2(b) or for any reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a) shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

The ENs to GRI 3(b)(VIII) state, in part, that "[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods."

In the instant case, the product is a composite good consisting of plastic coated kraft paper and a plastic textile scrim. The plastic coated kraft paper is classified under heading 4811 as paper coated with plastics; and the plastic textile scrim is classified under heading 5603 as a nonwoven fabric, whether or not impregnated, coated, covered or laminated. As both of these headings provide for articles of which the instant product is composed, the product is, prima facie, classifiable under both of these headings. GRI 3(b), therefore, is applicable to the instant classification analysis.

Marketing material for Herculink products emphasizes its durability, moisture resistance and burst and tear resistance. See www.mpidirect.com, www.papercone.com and www.baystateenvelope.com. These features are imparted by the coated kraft paper and are what gives the product its commercial appeal as a high strength envelope. The scrim is included as a component to give the paper added support, and the scrim does not impart the above-mentioned qualities to the product that the paper does. Therefore, the role of the coated kraft paper in relation to the use of the product gives the product it essential character. The instant product, thus, must be classified as if consisting of the coated kraft paper, pursuant to GRI 3(b).

HOLDING:

Protest number 1401-05-100303 is granted. In accordance with GRI 3(b), the Herculink paper is classified in heading 4811, HTSUSA. It is provided for in subheading 4811.59.4040, HTSUSA, 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, of any size, other than goods of the kind described in heading 4803, 4809 or 4810: Paper and paperboard, coated, impregnated or covered with plastics (excluding ashesives): Other: 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.” The rate of duty 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 CBP 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

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