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HQ 089165

September 5, 1991

CLA-2 CO:R:C:T 089165 KWM


TARIFF No.: 4804.39.6040

Mr. John F. Manahan
Assistant District Director
United States Customs Service
P.O. Box 1490
St. Albans, Vermont 05478

RE: Application for Further Review of Protest Number 0201-91-100015; Tissue paper; Kraft paper; Wrapping paper; 087165; Protest Number 0201-90-000398, HQ 089166; Protest Number 0712-90-001027, HQ 089377.

Dear Mr. Manahan:

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 August 14, 1990 through August 28, 1990. After considering the issues and facts presented, we find that the protest should be denied. Our analysis follows.


The protestant here appeals the classification of merchandise in six (6) separate entries. In entry number 702-0860067-9, 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 St. Albans 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:

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:

This Application for Further Review was prepared in conjunction with 2 other Applications for Further Review (AFR's), regarding protest numbers 0712-90-001027 and 0201-90-000398 (Headquarters Ruling Letters (HRL's) 089377 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. One description of the merchandise is found 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."


Is the merchandise classified as kraft paper?

If so, is it further classified as wrapping paper or as other kraft paper?


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.


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.


John A. Durant,
Commercial Rulings

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