Abitibi Price Sales Corp. v. United States

13 Ct. Int'l Trade 787
CourtUnited States Court of International Trade
DecidedOctober 6, 1989
DocketCourt No. 85-06-00793
StatusPublished

This text of 13 Ct. Int'l Trade 787 (Abitibi Price Sales Corp. v. United States) is published on Counsel Stack Legal Research, covering United States Court of International Trade primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abitibi Price Sales Corp. v. United States, 13 Ct. Int'l Trade 787 (cit 1989).

Opinion

Opinion

Restani, Judge:

Plaintiff, Abitibi-Price Sales Corporation (Abitibi), brings suit pursuant to 28 U.S.C. § 1581(a) (1982) and 19 U.S.C. 1515 (1982) protesting the United States Customs Service (Customs) classification of certain entries of paper from Canada as "writing paper” under item 252.75 of the Tariff Schedules of the United States (TSUS) (1983). Plaintiff claims that the correct paper classification is uncoated "book paper and printing paper, not specially provided for,” as set forth at TSUS item 252.67.1 In addition, plaintiff claims that some of its shipments should have been classified as "standard newsprint,” under TSUS item 252.65. Defendant for its part argues that it correctly classified the subject merchandise as "writing paper” under TSUS item 252.75. Alternatively, if the paper is found to be neither writing nor printing paper, defendant claims that classi[788]*788fication under the basket provision for plain paper of the applicable weight under TSUS item 252.90 is appropriate.

A. Facts

This case involves the importation of paper products from Canada. The subject paper as sold is marked "Abiform,” followed by a numerical designation referring to the brightness of the stock (i.e., Abiform 65, Abiform 70). Abiform is composed of approximately 75% to 80% "groundwood” or "mechanical” fiber, with the remaining composition consisting of chemical pulp. It is principally used to make computer printout paper for high speed data processing systems which utilize impact printers. The paper is sold to form converters which slit, punch, perforate, fan fold the paper, and additionally, sometimes print bars and numbers on the sheets.

During the 1970’s paper products entered as "printing paper” under TSUS item 252.67 were dutiable. See e.g. TSUS item 252.67 (1978). Beginning in 1980, however, such products became duty free. See TSUS item 252.67 (1980). Plaintiff claims that as early as 1978, and until 1983, it imported Abiform into the United States under TSUS item 252.67. Plaintiffs Post-trial Brief at 47. Plaintiff introduced both testamentary and documentary evidence to demonstrate that from 1980 until 1983 Abiform was generally imported into the United States duty free under either TSUS item 252.65 or item 252.67. See e.g. TR at 42, 602-03, 145, 147 & Plaintiffs Exhibit 67. Customs, on the other hand, produced no evidence on this issue.

The evidence reveals that in 1983 Customs began to classify Abiform as "writing paper” under TSUS item 252.75. If Abiform was ever classified as writing paper before that time it was not apparent from the evidence. Classified as writing paper, the goods are dutiable. Plaintiff filed timely protests for those entries classified as writing paper. Those protests were denied by Customs and later forwarded to Customs Headquarters for further review. On November 26, 1984, Customs issued a Headquarters Ruling Letter confirming its view that the subject merchandise was writing paper. See Headquarters Ruling Letter (HRL) 074564. On December 12, 1985, Customs issued a second Ruling Letter regarding a separate set of entries and a separate protest, stating that Abiform entries meeting the standard newsprint physical specifications of Treasury Decision (TD) 68-265(20), 2 Cust. Bull. 597, 598 (1968) should be reliquidated as standard newsprint under item 252.65 and that the balance of the paper was correctly classified as writing paper under item 252.75. Plaintiffs Exhibit 8 (HRL 076053).2 Plaintiff therefore filed suit in this court challenging Customs’ denial of its protests.

[789]*789B. Parties’ Arguments

Plaintiff asserts that a uniform and established practice existed which bound Customs to continue accepting classification of Abiform under TSUS item 252.67 until such time as Customs effectively notified the parties of a change in practice. In addition, plaintiff seeks to require Customs to abide by its Ruling Letter of December 12, 1985, and thus classify under TSUS item 252.65 any of plaintiffs goods which meet the descriptive specifications of "standard newsprint paper” set forth in T.D. 68-265(20). Plaintiff also claims that defendant’s writing paper classification is based on an erroneous assumption that the paper is not properly classifiable as printing paper. It claims that printing paper is a general or common use provision.3

Defendant’s classification is based on two sets of criteria. First, the government determined that a physical analysis of Abiform demonstrated that it has the characteristics of writing paper. Second, the government reasoned that Abiform could not qualify as printing paper under TSUS item 252.67 because that provision is a "chief use” provision4 and the subject merchandise is not used principally for printing.5 Therefore, the government reasoned, Abiform must necessarily be writing paper.

C. Discussion

1. Framework for Analysis and Background:

In determining whether the subject merchandise was correctly classified as "writing paper” under TSUS item 252.75, the court must determine de novo "whether the government’s classification is correct, both independently and in comparison with the importer’s alternative.” Kalan Inc. v. United States, Slip op. 88-165 at 2 (December 1, 1988) (quoting Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (1984), reh’q denied, 739 F.2d 628 (Fed. Cir. 1984)). Defendant’s classification of the subject goods as writing paper is presumptively correct. Plaintiff, therefore, bears the burden of overcoming this presumption of validity. Id. at 2-3.

Some historical background is needed for a full understanding of this matter. What appears to have happened in this area is that technology has blurred the lines between what in the trade were once known as, and under the TSUS are still classified as, distinct categories of merchandise. That is, except for certain papers with very specific uses, communications papers have generally fallen in[790]*790to three basic categories: (1) standard newsprint, (2) book and printing paper, and (3) writing paper. Although at the time of enactment of the Tariff Act of 1930 there was apparently some confusion over the boundary between standard newsprint and book and printing paper,6 there appears to have been no such confusion as to the dividing line between printing paper and writing paper.

The Tariff Schedules of 1960 reflected the same basic division, although some of the former items were divided and placed under new headings. For example, the United States Tariff Commission, Tariff Classification Study, Schedule 2 — Wood and Paper; Printed Matter at 102,7 states that writing paper under item 252.75, along with two other items, covers those products formally classified under paragraph 1407(a) of the Tariff Act of 1930.8

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