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