CLA-2 OT:RR:CTF:TCM H278987 NCD
Barry M. Boren
Law Offices of Barry M. Boren
One Datran
9100 South Dadeland Boulevard
Suite 402
Miami, FL 33156
RE: Request for classification of rolling paper cones and packing straws
Dear Mr. Boren:
This is in response to your request, filed July 15, 2016 on behalf of Good Times USA, LLC (“GTUSA”), for a binding ruling as to the classification of rolling paper cones and packing straws 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. In reaching this decision, we have taken into consideration information provided in your July 15, 2016 request (“ruling request”) and in a November 21, 2016 teleconference. Additionally, descriptions of the subject merchandise are based on descriptions of the same included in your ruling request and upon our inspection of a product sample, the latter of which is enclosed with this decision.
In your ruling request, you also inquire as to whether federal excise taxes will be assessed upon the subject merchandise at entry. However, the Alcohol and Tobacco Tax Bureau (TTB), rather than CBP, is responsible for calculating and imposing federal excise taxes upon cigarette and tobacco products. Accordingly, we advise that you request a ruling from TTB, whose contact information is provided below.
FACTS:
The subject merchandise consists of rolling paper cones, which are made up of thin papers rolled into conical form and fitted at their bases with paperboard mouthpiece “filters,” and plastic packing straws used to fill and pack the cones (see photo below). The cones function like cigarettes inasmuch as they are filled with smokable contents and subsequently ignited for consumption. However, the products’ package indicates that the cones are for use only with “legal herbs,” and are not for use with tobacco.
ISSUE:
Whether the subject rolling paper cones and packing straws are classified as “other” articles of plastics in subheading 3926.90.99, HTSUS, as cigarette paper in the form of tubes in subheading 4813.10.00, HTSUS, as “other” cigarette paper in subheading 4813.90.00, HTSUS, or as “other” paper in subheading 4823.90.86, 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.” GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
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 2017 HTSUS are under consideration:
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
4813.90.00 Other
4823 Other paper, paperboard, cellulose wadding and webs of cellulose fibers, cut to size or shape; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibers
4823.90 Other:
Other:
Other:
Other:
4823.90.86 Other
At the outset, we note that the subject merchandise consists of both rolling paper cones and plastic packing straws. We initially consider classification of the rolling paper cones in heading 4813, HTSUS, which applies to “Cigarette paper…whether or not in the form of…tubes.” EN 48.13 states, in pertinent part, as follows:
The heading covers all cigarette paper (including plug wrap and tipping paper, used for wrapping the filter mass and for assembling the filter-tip and the cigarette, respectively), regardless of its size or presentation…
* * *
Paper in the form of tubes may also be fitted with filters, generally consisting of small plugs of absorbent paper, cellulose wadding or cellulose acetate fibres, or the tip ends may be reinforced with paper of heavier quality.
The EN to heading 2402, HTSUS, which applies, inter alia, to “cigarettes of tobacco or of tobacco substitutes,” states as follows with respect to the term “cigarette”:
This heading covers:
* * *
Cigars, cheroots, cigarillos and cigarettes of tobacco substitutes, for example, “cigarettes” (“smokes”) made from specially processed leaves of a variety of lettuce, containing neither tobacco nor nicotine.
The heading does not cover medicinal cigarettes (Chapter 30). However, cigarettes containing certain types of products specifically formulated to discourage the habit of smoking but which do not possess medicinal properties remain classified in this heading. (emphasis added).
EN 48.13 indicates that heading 4813, HTSUS, applies to all “cigarette paper,” irrespective of its particular presentation. The term “cigarette” is not defined in the HTSUS. 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 by 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). According to various dictionaries, a “cigarette” consists of rolled paper in which tobacco or, alternatively, an herbal or narcotic substance is enclosed. See Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/cigarette (last visited Feb. 7, 2017); Oxford English Dictionary Online, https://en.oxforddictionaries.com/definition/cigarette (last visited Feb. 7, 2017). This understanding of “cigarette” is consistent with the terms of heading 2402, HTSUS, which make clear that cigarettes within the meaning of the HTSUS may contain either tobacco or “tobacco substitutes.” See Diamond Sawblades Mfrs. Coalition v. United States, 11 F. Supp. 3d 1303, 1312 (Ct. Int'l Trade 2014) (citing Gustafson v. Alloyd Co., 513 U.S. 561, 568 (1995), in stating that “the same words used twice in the same act are presumed to have the same meaning”). It is also supported by EN 24.02, which specifically identifies non-tobacco substances, such as processed lettuce leaves and nicotine replacement substances, as examples of permissible cigarette contents. In view of this, cigarette paper can be understood as paper, rolled or otherwise, for use as a container and consumption mechanism for tobacco or other smokable substances.
Here, the instant rolling paper cones indisputably consist of paper strips that have been rolled and secured in conical form and fitted with paperboard mouthpieces so as to enable the deposition and subsequent consumption of tobacco or other smokable substances. While you suggest that the label on the products’ package deters use of the cones with tobacco, it does not preclude such use. In fact, there is no indication that the cones are any less suitable for use with tobacco than they are for use with “legal herbs.” Moreover, even assuming that the cones are filled solely with non-tobacco substances, the filled cones would nevertheless fall under the scope of the term “cigarette” as indicated by the terms of heading 2402, HTSUS, by EN 24.02, and by the above-cited dictionary definitions. Consequently, we find that the instant rolling paper cones are described as “cigarette paper” within the meaning of heading 4813, HTSUS. As such, they are classified in that heading, rather than in heading 4823, HTSUS. See EN 48.23 (“This heading includes: (A) Paper…not covered by any of the previous headings of this Chapter…”). However, the packing straws, which are made up entirely of plastic, do not fall within the scope of either heading 4813 or heading 4823 and must therefore be classified elsewhere.
As to the 8-digit subheading classification of the instant rolling paper cones, subheading 4813.10.00, HTSUS, provides, inter alia, for cigarette paper that is specifically in the form of tubes. Like “cigarette”, “tube” is not defined in the HTSUS. However, according to various dictionaries, it denotes a long, hollow cylinder or, alternatively, an object that resembles a tube but which may not necessarily retain a strictly cylindrical form. See The Oxford English Dictionary Online, https://?en.oxford?dictionaries.com?/?definition/tube (last visited Feb. 7, 2017); The Merriam-Webster Online Dictionary, http://? www.merriam-webster.com/dictionary/tube (last visited Feb. 7, 2017) (defining “tube” in part as “any of various usually cylindrical structures or devices” (emphasis added)). Consistent with this understanding of “tube,” the statutory language of the HTSUS indicates that tubes may be tapered rather than strictly cylindrical for purposes of classification. This is evident, for example, in references to “tapered tubes” in the nomenclatures of subheadings 7305.31.20, 7306.30.30, 7306.50.30, and 7308.20.00, HTSUS. See Diamond Sawblades, 11 F. Supp. 3d at 1312; Gustafson v. Alloyd Co., 513 U.S. at 568. We are therefore of the position that “cigarette tubes” within the meaning of subheading 4813.10.00, HTSUS, include cigarette papers rolled into conical form. Here, the rolling paper cones, while slightly tapered, are long, hollow, and quasi-cylindrical in form. As such, they bear sufficient resemblance to tubes to qualify as such within the meaning of subheading 4813.10.00, HTSUS.
Citing Internal Revenue Code and TTB regulation definitions of “cigarette tube” as a “hollow cylinder for use in making cigarettes,” as well as a single dictionary definition of “cylinder,” you suggest that cigarette tubes are limited to cigarette papers rolled into a form in which their opposite planes remain strictly parallel. See 26 U.S.C. §5702(f); 27 C.F.R. §40.11; Random House Dictionary, http://www.dictionary.com?/browse?/cylinder (last visited Feb. 7, 2017). However, there is no indication, in the form of a binding TTB decision or otherwise, that TTB has adopted the position that a cigarette tube must strictly adhere to a precise geometrical configuration. Even if this were the case, moreover, statutes and regulations unrelated to tariff classification do not govern interpretation of the HTSUS, and accordingly cannot support a position that is inconsistent with a proper interpretation of the latter. See HQ H243087, dated January 13, 2015 (citing Amersham Corp. v. United States, 564 F. Supp. 813, 817 (Ct. Int’l Trade 1983). To wit, your characterization of “tube” as strictly cylindrical is irreconcilable with the clear indications throughout the HTSUS that tubes may be tapered, as well as the above-cited dictionary definitions that support such an interpretation of “tube.” Accordingly, we find that the instant cones, as cigarette papers rolled into the form of a tapered tube, do in fact qualify as “cigarette tubes” of subheading 4813.10.00, HTSUS. We note that this determination is consistent with CBP precedent. See New York Ruling Letter (NY) N075375, dated March 15, 2010 (classifying “funnel-shaped cigarette tubes” in subheading 4813.10.00).
With respect to the packing straws, which fall outside the scope of headings 4813 and 4823, we consider classification in heading 3926, HTSUS. Heading 3926 provides, inter alia, 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 straws are classifiable in heading 3926.
Because the subject merchandise consists of items that are classifiable in two different headings, it 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 rolling paper cones are classifiable in heading 4813, HTSUS, whereas the plastic packing straws are classifiable in heading 3926, HTSUS. They are put up together, in labelled, cardboard packages, for the specific purpose of enabling users’ consumption of smokable substances. Accordingly, the rolling paper cones and packing straws constitute “goods put up in sets for retail sale” for purposes of GRI 3. They are consequently 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 rolling paper cones are indispensable with relation to the set’s use. In the absence of the cones, which themselves are the objects of consumption, the packing straws alone could not be used for smoking. In contrast, the packing straws merely facilitate this end-use by increasing the efficiency with which the cones are filled and packed. The absence of these straws would not impair the user’s ability to fill, pack, ignite, and smoke the rolling paper cones. We accordingly conclude that the rolling paper cones impart the essential character of the subject merchandise. The subject merchandise is consequently classified in heading 4813, HTSUS, specifically subheading 4813.10.00, HTSUS. We note that this determination is consistent with HQ H264891, supra, in which we concluded that the essential character of tubes containing tendu leaf cones and plastic packing sticks was imparted by the cones.
HOLDING:
By operation of GRIs 1 and 3(b), the subject rolling paper cones and packing straws, packaged together for retail sale, are classified in heading 4813, HTSUS. They are specifically classified in subheading 4813.10.0000, HTSUSA (Annotated), which provides for: Cigarette paper, whether or not cut to size or in the form of booklets or tubes: In the form of booklets or tubes. The 2017 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.
As stated above, imported cigarette tubes are subject to additional federal excise taxes imposed by 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, 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