HQ 089377

September 5, 1991

CLA-2 CO:R:C:T 089377 KWM

CATEGORY: Classification

TARIFF No.: 4804.39.6040

Mr. Rodney Ralston

Assistant District Director

United States Customs Service

U.S. Customhouse

Interstate 87

Champlain, New York 12919

RE: Application for Further Review of Protest Number

0712-90-001027; Tissue paper; Kraft paper; Wrapping paper;

087165; Protest Number 0201-91-100015, HQ 089165; Protest Number

0201-91-100015, HQ 089166.

Dear Mr. Ralston:

This application for further review was filed in response to

your liquidation of merchandise under subheading 4804.39.6040,

HTSUSA, in a series of entries dating from April 14, 1989 to Jun

15, 1990. After considering the issues and facts presented, we

find that the protest should be denied. Our analysis follows.

FACTS:

The protestant here appeals the classification of merchandise

in nineteen (19) separate entries. In entry number

702-0385430-5, the merchandise was entered under HTSUSA

subheading 4805.60.70, which provides for certain uncoated

papers. We do not have the documentation, and therefore the

proposed classification, for the remaining entries. At the time

of entry, the port of Champlain re-classified the paper under

subheading 4804.39.6040, HTSUSA, which provides for:

4804 Uncoated kraft paper and paperboard, in rolls or

sheets, other than that of heading 4802 or 4803:

. . .

Other kraft paper and paperboard weighing 150 g/m2

or less:

. . .

4804.39 Other:

. . .

4804.39.60 Other:

4804.39.6040

Other\...\...\...\...\...\...\...\...\...\...\...\....

The importer timely filed this protest in accordance with Section

177.12 of the Customs Regulations, alleging that the proper

classification for all the merchandise (all six entries) should

be in subheading 4804.39.4040, HTSUSA, which provides for:

4804 Uncoated kraft paper and paperboard, in rolls or

sheets, other than that of heading 4802 or 4803:

. . .

Other kraft paper and paperboard weighing 150

g/m2 or less:

. . .

4804.39 Other:

. . .

4804.30.40 Wrapping paper:

4804.39.4040

Other\...\...\...\...\...\...\...\...\...\...\...\....

This Application for Further Review was prepared in

conjunction with 2 other Applications for Further Review (AFR\'s),

regarding protest numbers 0201-90-000398 and 0201-91-100015

(Headquarters Ruling Letters (HRL\'s) 089165 and 089166,

respectively). The importer and broker are the same in all three

cases. It is our understanding that the merchandise at issue in

all three cases is virtually the same. The importer has included

identical supporting documents in all three cases, and advances

the same arguments in each. Therefore, we have considered all

relevant evidence in deciding HRL\'s 089165, 089166 and 089377.

Documentation which accompanied protest number

0712-90-001027 indicates that the material used in the

manufacture of the merchandise is recycled paper. The importer

states that the kraft fiber content may vary from sample to

sample, depending on the source of recycled fibers: \"\[we\] are

therefore unable to state that the tissue contains any constant

percentage of any fibers.\" In other words, while this shipment

may have over 80 percent kraft fibers, other shipments may not.

A shipment may also contain residual traces of materials from the

source paper: Customs Laboratory tested a sample drawn from an

entry at issue in protest number 0712-90-001027, and found that

is contained traces of paraffin wax. The merchandise is

described in a Laboratory report on a sample drawn from an entry

in protest number 0201-90-000398:

. . . sheets of tissue like white paper, weighing 14.8

grams per square meter, and having a thickness of 0.030 mm. \[It\]

is composed of more than 95% chemical kraft pulp fibers. The

sample is not coated (ash 2.1%), and has a brightness of more

than 77%.

The importer submits in all three cases that \"the tissue paper in

question has a basis weight of 9.25 pounds.\" The merchandise is

referred to in the protest documents as \"kraft paper\", \"tissue

paper\", \"wrapping paper\" or \"tissue wrapping paper.\"

ISSUE:

Is the merchandise classified as kraft paper?

If so, is it further classified as wrapping paper or as

other kraft paper?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the

United States Annotated (HTSUSA) is made in accordance with the

General Rules of Interpretation (GRI\'s). 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 relevant

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\'s may be

applied, taken in order.

Both the port and the protestant appear to agree that

heading 4804, HTSUSA, is correct for classifying this merchandise

and we concur. Legal Note 5 to chapter 48, HTSUSA, defines

\"kraft paper\":

5\. In 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.

Emphasis in the original. As we noted above, the Customs

Laboratory found that a sample of the paper at issue contained

more than 95 percent \"chemical kraft pulp fibers.\" The paper

therefore falls within the definition of kraft paper in heading

4804, HTSUSA.

Within heading 4804, merchandise is classified as

\"kraftliner\", \"sack kraft paper\", or as \"other kraft paper.\"

The terms \"kraftliner\" and \"sack kraft paper\" are defined in

subheading notes 1 and 2 to chapter 48, HTSUSA. The notes do not

address themselves to \"wrapping paper\", the definition of which

is the central question here. We find the \"wrapping paper\" as

used in subheading 4804.39.4040, HTSUSA, does not include the

paper at issue.

Protestant\'s argument for classification as \"wrapping

paper\" is three-fold: First, protestant argues that tissue is a

type of paper, and that this paper is used for wrapping.

Therefore, it is a \"wrapping paper.\" Second, that the HTSUSA

does not specify what should be included under \"wrapping paper\"

and that this paper may therefore be included. Third, protestant

attempts to analogize HTSUSA classification to classification

under the Tariff Schedules of the United States (TSUS).

We agree with protestant that tissue paper is a type of

paper, and that the instant merchandise might be used to \"wrap\"

other goods. We do not, however, agree that these bring the

paper within the scope of subheading 4804.39.4040, HTSUSA.

Wrapping paper, as that term is used in the nomenclature, refers

to a specific type of paper. Not every \"paper\" which may or may

not be used for \"wrapping\" is considered \"wrapping paper\" for

tariff purposes. We note the following definitions from the

Dictionary of Paper:

Kraft paper - A paper made essentially from wood pulp

produced by a modified sulfate pulping process. It is a

comparatively course paper particularly noted for its strength,

and in unbleached grades is used primarily as a wrapper or

packaging material.

Kraft wrapping - A wrapping sheet for general commercial

purposes, made of kraft pulp, M.F. and M.G. finish, in a large

range of basis weights, usually from 25 to 120 pounds.

Wrapping paper - A general term applied to a class of

papers made of a large variety of furnishes on any type of paper

machine and used for wrapping purposes. Strength and toughness

are predominant qualities.

Wrapping tissue - A term applied to a variety of tissues

made for wrapping and packing of merchandise. Basis weights run

from 10 to 17 pounds. Qualities vary in accordance with

particular uses, but most requirements call for a paper that is

strong, well-formed and clean.

(The Dictionary of Paper, Fourth Edition, 1980, page 456). These

definitions support a distinction between wrapping papers versus

tissue which may be used for \"wrapping.\" The heading in question

provides simply for \"wrapping paper.\" We find that these terms

contemplate a product different from that at issue.

Specifically, \"wrapping paper\" is a heavier, stronger grade of

paper used for exterior wrapping or covering of parcels, and has

a higher basis weight, such as the paper described as \"Kraft

wrapping\" above. Wrapping paper does not include tissue-like

paper which may be used to cushion or protect articles which are

placed in separate and more substantial containers, such as that

described as \"wrapping tissue.\"

We do not agree with the protestant that the absence of

limiting language permits the inclusion of this paper under the

provision for \"wrapping paper.\" Customs considers many factors

in reaching a classification decision. We will not classify a

product under a heading or subheading which should not properly

include that merchandise, according to the commercial meaning of

the tariff terms and the applicable legal notes. In this case,

we find that subheading 4804.39.4040, HTSUSA, does not properly

include this merchandise, based on the product\'s weight and

strength, the eventual use of the product, as well as our

understanding of the commercial designation given the paper.

Lastly, we have reviewed the classification of similar

papers under the TSUS, but do not find that it supports the

protestant\'s position. By enacting the HTSUSA, Congress changed

the classification criteria for imported merchandise.

Classification under the TSUS is not binding in this case. This

paper was not then, and is not in this case, considered a

wrapping paper. In addition, we note that the TSUS-to-HTSUSA

cross reference is not legally binding under the HTSUSA. While

the TSUS-to-HTSUSA conversion was intended to \"rate neutral\",

some changes in duty rates were enacted. The Customs Service

does not set or influence the duty rates; that responsibility

belongs to the Congress. Customs is charged simply with

enforcing the rates set by Congress.

Paper having a kraft fiber content less than 80 percent

As noted above, the laboratory analysis of this paper

indicated a kraft fiber content in excess of 95 percent.

However, other entries may contain considerably less kraft fiber,

by weight. In each entry, protestant should provide

specifications for each shipment, or be subject to Customs

Laboratory\'s analysis of the goods\' component materials. In

addition, care should be exercised to prevent the presence of

other, stray materials from improperly affecting the

classification of recycled papers.

Because we are concerned here with the classification of

the subject entries, we chose not to speculate on other papers\'

classification other than to note that paper containing less than

80 percent kraft fiber (see, note 5, chapter 48, HTSUSA) must be

classified in a heading other than 4804, HTSUSA.

HOLDING:

The protest should be denied.

The merchandise at issue, having over 80 percent by weight

of kraft fibers, is considered a kraft paper of heading 4804,

HTSUSA. However, the merchandise is not considered wrapping

paper. It is classified under subheading 4804.39.6040, HTSUSA,

as other kraft paper.

A copy of this decision should be attached to the CF 19

notice of action to be sent to the protestant.

Sincerely,

John A. Durant,

Director

Commercial Rulings