CLA-2 CO:R:C:G 087135 RFC
Mr. C.R. Piercy, Jr.
Philip Morris Inc.
P.O. Box 26603
Richmond, VA 23261
RE: Tobacco
Dear Mr. Piercy:
This ruling letter is in response to your request of April
6, 1990, on behalf of Philip Morris Inc., concerning the tariff
classification under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) of certain tobacco products. Samples
were submitted for examination.
FACTS:
In your request, you identify and describe the tobacco
products for which classification rulings are sought as follows:
1. fines (small, broken bits of tobacco)
2. dust (minute tobacco particles)
3. winnowers (filler clumps, veins and stems)
These tobacco products are generated (through an extraction
process) during both the primary processing operation phase
(stemmed tobacco--i.e., unmanufactured tobacco that has been
threshed or similarly processed--is conditioned, blended,
flavored, cut and dried) and the cigarette manufacturing
operation phase (tobacco that has gone through a primary
processing operation is fed into cigarette making machines) of
the cigarette manufacturing process. The tobacco products are
then used in the manufacture of reconstituted or homogenized
tobacco.
ISSUES:
What is the proper classification under the HTSUSA of
small, broken bits of tobacco, minute tobacco particles, and
tobacco filler clumps, veins and stems generated during either
the primary processing operation phase or the cigarette
manufacturing operation phase of the cigarette manufacturing
process for use in the manufacture of reconstituted or
homogenized tobacco?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRIs). GRI 1 requires
that classification be determined first according to the terms of
the headings of the tariff and any relative section or chapter
notes and, unless otherwise required, then according to the
remaining GRIs, taken in order. Under GRI 3 (a), when goods are,
prima facie, classifiable under two or more headings, the goods
shall be classified under the heading that provides the most
specific description from among headings providing a more general
description (i.e., the goods should be classified under the
heading that most clearly identifies them). GRI 6 prescribes
that, for legal purposes, GRI 1 to 5 shall govern, mutatis
mutandis, classification at subheading levels within the same
heading. In view of the above, then, when goods are, prima
facie, classifiable under two or more subheadings within the same
heading, the goods shall be classified under the subheading that
most specifically describes or identifies them.
In the instant classification analysis, the chapter in which
the goods are classified is chapter 24, which covers tobacco and
manufactured tobacco substitutes. Within this chapter, there
exist two headings under which the goods may be potentially
classified: heading 2401 and heading 2403.
Heading 2403 provides for, among other things, manufactured
tobacco not provided for earlier in chapter 24. Within this
heading, subheading 2403.99.0065 provides for other manufactured
tobacco, partially manufactured, blended or mixed tobacco. In
the memorandum submitted with your request and entitled "Tobacco
Processing: Purchase to Products," it states that "[f]ines,
dust, and winnowers may be captured in both the primary
processing operation and the cigarette making operation. The
H.S. classification most accurately describing these by-products
is 2403.99.00653 `other manufactured tobacco-partially
manufactured, blended or mixed tobacco.'" For a tobacco product
to be considered manufactured tobacco, either entirely or
partially, it must, of course, have first gone through some
manufacturing process. In the U.S. Department of
Agriculture's regulations set forth in 7 C.F.R. 30.2 (which was
cited by the U.S. Court of International Trade as authority and
with approval in Kuehne & Nagel, Inc. v. United States, 10 CIT
814, 818 (1986)), the acts of stemming, sweating, fermenting, and
conditioning are identified as non-manufacturing tobacco
processes. In the instant case, the processes that the tobacco
products go through essentially involve these same processes.
Therefore, the tobacco products do not go through a manufacturing
process. They are, then, not properly classified under
subheading 2403.99.0065.
Within heading 2401, the second heading in chapter 24 under
which the instant tobacco products may be potentially classified,
subheading 2401.30 provides for tobacco refuse. By way of
example, the Explanatory Notes to heading 2401 identify tobacco
refuse as "waste resulting from the manipulation of tobacco
leaves, or from the manufacture of tobacco products (stalks,
stems, midribs, trimmings, dust, etc.)" (emphasis added). There
exist no specific or exact definitions of the terms "tobacco
refuse" or "waste tobacco" in the HTSUSA or the Explanatory Notes
thereto. The term "waste," in reference to tobacco, however, has
been discussed elsewhere.
In the U.S. Department of Agriculture's regulations set
forth in 7 C.F.R. 29, the term "waste," in reference to tobacco,
has been generally defined as the portion or portions of the web
of tobacco leaves which have been lost, rendered less
serviceable, or rendered unserviceable for use in tobacco
products. Listed as types of such waste included with this
definition are "(a) [p]ortions which have decomposed or largely
decomposed by field diseases, field-firing, pole-burning, or
bulk-burning; (b) portions which have been frozen or sunburned;
and (c) portion which are dead, trashy, and do not have
sufficient strength or stability to hold together in the normal
manufacturing process due to excessive injury of any kind." (See
7 C.F.R. sections 29.1082, 29.4301, and 29.4552.) Additionally,
the term "refuse" is generally regarded as "the worthless or
useless part of something" and the term "waste" as a "damaged,
defective, or superfluous material produced by a manufacturing
process". See Webster's Ninth New Collegiate Dictionary 991,
1330 (1989). In your April 6, 1990, letter of request, you
describe and identify the tobacco products for which
classification rulings are sought as "tobacco refuse." In view
of the above, however, these tobacco products are clearly not
"tobacco refuse" or "tobacco waste" (i.e., they do not consist of
tobacco that has been rendered less serviceable or unserviceable
for use in tobacco products nor is the tobacco worthless,
useless, damaged, defective or superfluous). Rather, each of the
products simply consists of tobacco exacted from other tobacco,
and then used to make a usable tobacco product (i.e.,
reconstituted or homogenized tobacco in sheet form). These
products, then, are not properly classified as tobacco refuse
under subheading 2401.30.
There exists another subheading within heading 2401 in which
the instant tobacco products may be potentially classified:
Subheading 2401.20.80 provides for unmanufactured tobacco,
whether or not threshed or similarly processed, partly or wholly
stemmed or stripped. Explanatory Note 2401(1) states, in part,
that heading 2401 covers "[u]nmanufactured tobacco
in...stemmed/stripped, trimmed or untrimmed, broken or cut
[form]...." In view of the above discussion and analysis, each
of the instant tobacco products simply consists of tobacco that
has been extracted (through whatever method and at various phases
of tobacco processing) from threshed or similarly processed,
unmanufactured tobacco. Quite logically, then, these tobacco
products themselves simply consist of threshed or similarly
processed, unmanufactured tobacco. Moreover, in Headquarters
Ruling Letters (HRL) 083651 and 084808 (which was affirmed in HRL
085970), all threshed or similarly processed cigarette leaf
tobacco reduced to particles of 1/16 or less were classified
under subheading 2401.20.80 as threshed or similarly processed,
unmanufactured tobacco. Accordingly, the above-described
tobacco products are properly classified under subheading
2401.20.80 as threshed or similarly processed, unmanufactured
tobacco.
HOLDING:
The above-described tobacco products are properly classified
under subheading 2401.20.80, HTSUSA, which provides for
unmanufactured tobacco (whether or not threshed or similarly
processed), tobacco, partly or wholly stemmed/stripped, threshed
or similarly processed, other. The general rate of duty is 44.1
cents per kilogram.
Sincerely,
John Durant, Director
Commercial Rulings Division