CLA-2 OT:RR:CTF:TCM H264891 NCD
Rajinder Shoor
Skyline International, Inc.
4774 Murrieta St. #3
Chino, CA 91710
RE: Request for classification of tendu leaf cones
Dear Mr. Shoor:
This is in response to your request, filed February 20, 2015 on behalf of Skyline International, Inc., for a binding ruling as to the classification of tendu leaf cones under the Harmonized Tariff System of the United States (HTSUS). Your request letter was received by the National Commodity Specialist Division of U.S. Customs and Border Protection (CBP) and was forwarded to our office for review. Our decision as to the proper classification of the subject merchandise under the HTSUS is set forth below.
FACTS:
Your request pertains to several varieties of tendu leaf cones, which consist of tendu leaves rolled into tapered tubes and secured in tubular form by threads and a circular band. You state, and our research confirms, that tendu leaves are collected from tendu, i.e., Indian Ebony, trees and are commonly used as wrappers for “bidis”, which are cigarette substitutes. As such, the instant cones function like cigarette or cigar wrappers, inasmuch as they can be filled with tobacco or other “smoking mixtures” and subsequently ignited and inhaled.
Photos included with your request indicate that the cones will be imported in retail packaging, which takes the form of either an air-sealed tube or a large box. You state that the cones do not contain tobacco or nicotine, as indicated by disclaimers on the packaging labels, and that they include both flavored and unflavored varieties. You also state that each packaging tube includes a “hard plastic stick packing tool” that can be used to facilitate the filling and packing of the enclosed cones.
ISSUE:
Whether the subject tendu leaf cones, packaged with or without plastic packing sticks, are classified as “other” vegetable materials in heading 1404, HTSUS, as “other” plastics of heading 3926, HTSUS, or as cigarette paper in heading 4813, HTSUS.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 3 governs the classification of goods that are prima facie classifiable in two or more headings, including, inter alia, goods put up in sets for retail sale. GRI 3(b) provides, in relevant part, that "goods put up in sets for retail sale… shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.”
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the Harmonized System at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The following provisions of the 2016 HTSUS are under consideration:
1404 Vegetable products not elsewhere specified or included
1404.90 Other:
1404.90.90 Other
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.90 Other:
3926.90.99 Other
4813 Cigarette paper, whether or not cut to size or in the form of booklets or tubes:
4813.10.00 In the form of booklets or tubes
Because heading 1404, HTSUS, is a basket provision, the subject merchandise can be classified there by application of GRI 1 only if it is not prima facie classifiable in heading 4813, HTSUS. See R.T. Foods, Inc. v. United States, 757 F.3d 1349, 1354 (Fed. Cir. 2014) (stating that a provision that contains the terms “not elsewhere specified or included” is a basket provision, in which classification of a given product “is only appropriate if there is no tariff category that covers the merchandise more specifically”). Accordingly, we initially consider whether the subject merchandise is classifiable in heading 4813.
Heading 4813, HTSUS, applies to “Cigarette paper.” The term “paper” is not defined in the HTSUS, but is described in the General EN to Chapter 48 as follows:
Paper consists essentially of the cellulosic fibres of the pulps of Chapter 47 felted together in sheet form.
The General EN to Chapter 47 describes the “pulps of Chapter 47” as follows:
The pulp of this Chapter consists essentially of cellulose fibres obtained from various vegetable materials, or from waste textiles of vegetable origin.
Collectively, the relevant ENs describe “paper” as cellulose fibres of pulps derived from vegetable material. This description comports with dictionary definitions of the term. See American Heritage College Dictionary 1205 (4th ed. 2004) (defining “paper” as “[a] material made of cellulose pulp, derived mainly from wood and rags”); Richard J. Lewis, Sr., Hawley’s Condensed Chemical Dictionary 943 (15th ed. 2007) (defining “paper” as “A semisynthetic product made by chemically processing cellulosic fibers”). It is well-established that when a tariff term is not defined by the HTSUS or its legislative history, its correct meaning is its common or commercial meaning, which can be ascertained through reference to “dictionaries, scientific authorities, and other reliable information sources and ‘lexicographic and other materials.” See Rocknell Fastener, Inc. v. United States, 267 F.3d 1354, 1356-57 (Fed. Cir. 2001). In accordance with the above-cited ENs, CBP has consistently excluded from heading 4813, as well as other provisions describing paper, articles that are not made up of cellulose fibres of vegetable pulp. See Headquarters Ruling Letter (HQ) H073917, dated July 17, 2014 (ruling that tobacco wrappers composed of homogenized tobacco were not classifiable in heading 4813); see also HQ H171857, dated June 26, 2012; and HQ H101580, dated September 1, 2010.
According to your request, the instant tendu leaf cones are made up of unprocessed tendu leaves. Having been taken directly from the tendu tree rather than obtained from pulp, the leaves cannot be described as paper for purposes of heading 4813, HTSUS.
We next consider heading 1404, HTSUS, which applies to “vegetable products not specified or included elsewhere in the Nomenclature.” EN 14.04 states, in relevant part, as follows:
This heading covers all vegetable products, not specified or included elsewhere in the Nomenclature.
It includes…
(F) Other vegetable products.
These products include…
Japanese rice paper (so-called) made by slicing the pith of certain trees indigenous to the Far East. It is used for making artificial flowers, for paintings, etc. Sheets of this rice paper remain classified in this heading whether or not they have been calendered to level their surface or have been cut to rectangular (including square) shape.
Betel leaves, consisting of the fresh, green leaves of the vine Piper betle L. Betel leaves are most commonly chewed after meals for their refreshing and stimulating effects.
The exemplars listed in EN 14.04 indicate that heading 1404 applies to leaves and to other products that, while obtained directly from vegetal material rather than from the pulp of such, effectively function as paper. Consistent with this, CBP has regularly classified leaves for use as cigarette wrappers in heading 1404. See New York Ruling Letter (NY) N102797, dated May 4, 2010; NY K80576, dated November 23, 2003; NY I80951, dated May 10, 2002; and NY F86795, dated May 19, 2000 (all classifying tobacco “paper” made from various types of leaves in heading 1404).
Similar to the products in the above-cited rulings, the instant cones consist of leaves which are taken directly from the tendu tree and rolled for use as cigarette wrappers. As such, they can be described as “vegetable products” within the meaning of heading 1404 and are classifiable there. The tendu leaf cones are therefore properly classified in heading 1404 when packaged in boxes. However, as you state in your request, cones packaged in air-sealed tubes include plastic packing sticks. Because the enclosed packing sticks are of plastic, rather than of vegetal material, they are excluded from heading 1404.
We accordingly consider whether the packing sticks can be classified in heading 3926, HTSUS, which provides for “other articles of plastic.” EN 39.26 states, in relevant part, that “[t]his heading covers articles, not elsewhere specified or included, of plastics…” As plastic articles that cannot be described by a more specific provision of the HTSUS, the packing sticks are classifiable in heading 3926.
Because the tubes of tendu leaf cones with enclosed packing sticks consist of items that are classifiable in two headings, they must be classified in accordance with GRI 3. EN (X) to GRI 3(b) states, in pertinent part, as follows:
For the purposes of this Rule, the term "goods put up in sets for retail sale" shall be taken to mean goods which:
Consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this rule;
Consist of products or articles put up together to meet a particular need or carry out a specific activity; and
Are put up in a manner suitable for sale directly to users without repacking (e.g. in boxes or cases or on boards)…
For the sets mentioned above, the classification is made according to the component or components taken together, which can be regarded as conferring on the set as a whole its essential character.
With respect to “essential character” for purposes of GRI 3(b), EN (VIII) to GRI 3(b) states as follows:
The 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 by the role of a constituent material in relation to the use of the goods.
When applying the above-listed factors to sets, courts have emphasized the importance of components’ respective roles in relation to the end-use of the set. Accordingly, they have consistently identified, as the component conferring the essential character of a given set, the item without which the set could not “meet a particular need” or “carry out a specific activity.” See Estee Lauder, Inc. v. United States, 815 F. Supp. 2d 1287, 1296 (Ct. Int'l Trade 2012) (holding that make-up components were essential to a cosmetics set because they enable the purchaser to “meet the particular need of putting on makeup”); and Toy Biz, Inc. v. United States, 248 F. Supp. 2d 1234, 1256-57 (Ct. Int'l Trade 2003) (holding that a doll conferred the essential character of a doll and trampoline set because the doll imparted the set’s value as an object of play, whereas the trampoline merely enhanced this value).
As discussed above, the tendu leaf cones are classifiable in heading 1404, HTSUS, whereas the plastic packing sticks are classifiable in heading 3926, HTSUS. They are put up together, in labelled, air-sealed tubes, for the specific purpose of enabling users’ consumption of tobacco or similar smoking substances. Accordingly, the tendu leaf cones and packing sticks constitute “goods put up in sets for retail sale” for purposes of GRI 3. As such, they are classified “according to the component…which can be regarded as conferring on the set as a whole its essential character.”
Of the two components, only the tendu leaf cones are indispensable with relation to the set’s use. In the absence of the tendu leaf cones, which themselves are the objects of consumption, the packing sticks alone could not be used for smoking. In contrast, the packing sticks merely facilitate this end-use by increasing the efficiency with which the cones are filled and packed. The absence of these sticks would not impair the user’s ability to fill, pack, ignite, and smoke the tendu cones. To wit, the packing sticks are not included with cones packaged in boxes. We accordingly conclude that the tendu leaf cones impart the essential character of the tubes containing cones and packing sticks. These tubes are consequently classified in heading 1404, HTSUS.
In summary, all tendu leaf cones, irrespective of whether they are packaged with packing sticks, are classified in heading 1404, HTSUS.
HOLDING:
By operation of GRIs 1 and 3(b), the subject tendu leaf cones are classified in heading 1404, HTSUS. They are specifically classified in subheading 1404.90.9090, HTSUSA (Annotated), which provides for: Vegetable products not elsewhere specified or included: Other: Other. The 2016 column one general rate of duty for this subheading is free.
Duty rates are provided for the internal advice applicant’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
Please note that this ruling does not address whether the subject merchandise is admissible into the United States. To obtain an admissibility ruling, you may send your request to the following address:
U.S. Customs and Border Protection
Office of International Trade
Regulations and Rulings
ATTN: Chief, Cargo Security, Carriers, and Restricted Merchandise Branch
90 K Street, NE 10th Floor
Washington, D.C. 20229-1177
This merchandise may be subject to the Federal Food, Drug, and Cosmetic Act (FDCA), as amended by the Family Smoking Prevention and Tobacco Control Act (FSPTCA), both of which are administered by the U.S. Food and Drug Administration (FDA). Information on the FDCA and FSPTCA can be obtained by calling the FDA at 1 (888) 463-6332, or by visiting www.fda.gov.
Imported cigarette tubes are subject to additional federal excise taxes imposed by the Alcohol and Tobacco Tax Bureau (TTB). Importers are instructed to consult the TTB for updated information on federal excise tax liability for imported cigarette tubes and other tobacco products. You may contact the TTB by telephone at (202) 453-2000 or by email at [email protected]. Written requests may be addressed to the following address: Alcohol and Tobacco Tax and Trade Bureau, Regulations and Rulings Division Attn: Industrial Alcohol Program, 1310 G Street NW, Box 12, Washington, D.C. 20005.
A copy of this decision should be filed with the port of entry at the time of entry.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification & Marking Branch