CLA-2-85:OT:RR:NC:N2:212
Richard O'Neill
Neville Peterson LLP
701 Fifth Avenue, Ste 4200-2159 Seattle, WA 98104
RE: The tariff classification of an electric vaporizer from China
Dear Mr. O'Neill:
In your letter dated May 24, 2024, you requested a tariff classification ruling on behalf of your client, DRD, LLC.
The merchandise under consideration is identified as the Dr. Dabber XS e-rig kit, which is described as an electronic device designed for the vaporization of certain cannabis concentrates. The subject submission requests the classification for the kit as well as some of the individual components when they are separately imported. We will address each scenario in the coming paragraphs.
We note that, based on the descriptions and supporting evidence provided with the ruling request, the subject products meet the definition of marijuana-related drug paraphernalia under 21 USC 863(d), the importation of which is prohibited under 21 USC 863(a)(3). However, in Eteros Technologies USA, Inc. v. United States, 592 F. Supp. 3rd 1313 (Ct. Int'l Trade 2022), and Keirton USA Inc. v. United States, 600 F. Supp. 3rd 1270 (Ct. Int'l Trade 2022), the Court of International Trade held that importers importing marijuana-related drug paraphernalia through a port where individuals are authorized by the state to possess such items, within the meaning of the exemption in 21 USC 863(f)(1), and are therefore exempt from this prohibition.
We recommend that any and all admissibility issues within the state to which the items will be imported be addressed prior to the entry of the devices. If you wish to obtain a specific admissibility ruling through a certain port of entry, you may write to the following CBP office: Attn: Cargo Security, Carriers, and Restricted Merchandise Branch Office of Trade Regulations and Rulings U.S. Customs and Border Protection 90 K Street NE Washington, DC 20229.
The complete XS e-rig kit consists of the following items: XS e-rig Main Unit, XS e-rig e-chamber, XS e-rig glass attachment, XS e-rig Carb Cap, XS e-rig water filling tool, loading tool, and Iso-Snaps. We note that, per your request, the water filling tool and loading tool are only incorporated within the finished kit and are not intended to be imported separately. As such, no individual classification will be given for those items. You also state that you request the classification of a similar device to the glass attachment, which we will also address herein.
The first item, identified as the XS e-rig Main Unit, is primarily comprised of a lithium-ion battery and Printed Circuit Board (PCB) housed within an enclosure. The outside of the unit incorporates a power button and LED indicator light as well as a USB charging receptacle. This unit is the control element of the finished vaporizer unit and allows the user to interact by powering on the device as well as selecting the correct heat levels.
The second item is identified as the XS e-rig e-chamber. This unit is comprised of a stainless-steel housing that encloses a quartz chamber with a built-in temperature sensor and heating element, which you state can be heated to temperatures ranging from 475 degrees Fahrenheit to 625 degrees Fahrenheit. The e-chamber is further designed to hold the substance to be vaporized within the incorporated quartz dish. This chamber is electrically connected to the Main Unit and functions as the primary atomizer for the device.
The third item is identified as the XS e-rig Glass attachment. This unit is a teardrop shaped glass container within which is a glass tube and glass funnel. The attachment is designed to attach, via the housing at the end of the tube, to the Main Unit and to act as a cooling and filtration chamber as well as the primary mouthpiece of the finished device. The glass container is meant to be filled with water that will be turned to vapor and will be mixed with the substance for the user to inhale.
The fourth item is identified as the XS e-rig Carb Cap, which is described as a glass and silicone piece designed to be placed on the top of the completed device. This cap controls the airflow into and out of the vaporization chamber.
The above four items are the primary components of the finished vaporizing device and, when connected, encompass all of the necessary functions needed to vaporize the intended substance. As such, when packaged and imported together, they would be considered as having the essential character of a complete vaporizing device.
The final item incorporated within the kit, which you also request an individual classification, is identified as the Iso-Snap, which is described as a cleaning tool for the vaporizer device. The cleaning tool consists of a dual ended cotton swab, the shaft of which contains a solution of 70% isopropyl alcohol. When the shaft is bent or snapped, the solution is released to the ends of the swab to allow the user to clean all of the components of the subject vaporizer.
There is an additional item in your request, identified as the Fractal Sidecar, which is described as an additional glass attachment. This is not included within the XS e-rig kit but is purchased separately as a replacement and enhancement to the included glass attachment. The subject item is designed virtually identical to the included glass attachments with differences in the interior to the glass filtration elements. There are fractal patterns cut within the glass of the device that, you state, enhance the filtration and cooling properties.
In your request, you state that when the components are packaged together as the XS e-rig kit, they meet the definition of goods put up in sets for retail sale and would be classified per the completed vaporizer under subheading 8543.40.0040, Harmonized Tariff Schedule of the United States (HTSUS). Based upon the information provided and the relevant research, we agree.
The applicable subheading for the XS e-rig kit will be 8543.40.0040, HTSUS, which provides for Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: electronic cigarettes and similar personal electric vaporizing devices: other. The general rate of duty will be 2.6% ad valorem.
Further in your request, you suggest that when imported separately, the XS e-rig main unit, XS e-rig chamber, XS e-rig glass attachment, XS e-rig carb cap, and the Fractal Sidecar are considered parts of personal vaporizing devices and are accurately classified under subheading 8543.90.8865, HTSUS. As none of the above referenced parts contain all of the necessary components to vaporize and inhale the substance by themselves and must be combined in order perform the necessary function, we would not consider any component to be the complete vaporizer. Further, all of these components are specifically designed for use with the vaporizer and have no function specifically described elsewhere in the tariff. As such, we agree that they are considered parts.
The applicable subheading for the XS e-rig main unit, XS e-rig chamber, XS e-rig glass attachment, XS e-rig carb cap, and the Fractal Sidecar will be 8543.90.8865, HTSUS, which provides for Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Parts: Other: Other: Of electronic cigarettes and similar personal electric vaporizing devices. The general rate of duty will be free.
You indicate that the Iso-Snap is a composite good classified in subheading 3808.99.95.01, HTSUS, with the alcohol being considered the essential character and, thus, being the element by which we would classify the entire good. Though we agree that the item is a composite good, we disagree that the alcohol is the essential character.
The applicator tip not only serves to eventually carry and transfer the alcohol component to the subject equipment but also serves to scrub and remove debris and assist in cleaning the subject equipment. Further, the swabs can be completely utilized on their own, free of the introduction of alcohol. For example, after the alcohol is introduced to one end of the swab, the other end can be used without alcohol to remove any additional residue, etc. Therefore, this office believes that it is the cotton applicators that serve as the essential character of the Iso Swabs. The Iso-Snap Swabs are composed of cotton wadding adhered to a plastic tube which contains alcohol to clean the various kits being imported. Heading 5601, HTSUS, specifically provides for articles of cotton wadding.
The applicable subheading for the Iso-Snap will be 5601.21.0090, HTSUS, which provides for Wadding of textile materials and articles thereof; textile fibers not exceeding 5 mm in length (flock), textile dust and mill neps: Wadding of textile materials and articles thereof: Of cotton: Other. The rate general of duty will be 3.6% ad valorem.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 8543.40.0040, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.02, in addition to subheading 8543.40.0040, HTSUS, listed above.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 8543.90.8865 and 5601.21.0090, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.03, in addition to subheading 8543.90.8865 and 5601.21.0090, HTSUS, listed above.
The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the Section 301 trade remedy, you may refer to the relevant parts of the USTR and CBP websites, which are available at:
https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions
https://www.cbp.gov/trade/remedies/301-certain-products-china
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/.
The holding set forth above applies only to the specific factual situation and merchandise description as identified in the ruling request. This position is clearly set forth in Title 19, Code of Federal Regulations (CFR), Section 177.9(b)(1). This section states that a ruling letter is issued on the assumption that all of the information furnished in the ruling letter, whether directly, by reference, or by implication, is accurate and complete in every material respect. In the event that the facts are modified in any way, or if the goods do not conform to these facts at time of importation, you should bring this to the attention of U.S. Customs and Border Protection (CBP) and submit a request for a new ruling in accordance with 19 CFR 177.2. Additionally, we note that the material facts described in the foregoing ruling may be subject to periodic verification by CBP.
This ruling is being issued under the provisions of Part 177 of the Customs and Border Protection Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, please contact National Import Specialist Luke LePage at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division