CLA-2 OT:RR:CTF:TCM H073917 RES
Mr. Konrad W. Adderley
Brown Sack Trading Company
217 East 86th Street
New York, NY 10028
RE: Revocation of New York Ruling Letter C82943, dated January 13, 1998.
Dear Mr. Adderley:
This is in regard to New York (“NY”) Ruling Letter C82943, issued to you on January 13, 1998, regarding the classification of tobacco wrappers, under the Harmonized Tariff Schedule of the United States (“HTSUS”). In NY C82943, Customs and Border Protection (“CBP”) classified the tobacco wrappers as cigarette paper, under heading 4813, HTSUS. We have reconsidered this ruling and determined that the tobacco wrappers are properly classified under heading 2403, HTSUS, which provides for “’homogenized’ or ‘reconstituted’ tobacco suitable for use as wrapper tobacco.”
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published on August 29, 2012, in Volume 46, Number 36, of the Customs Bulletin. CBP did not receive any comments during the notice period.
FACTS:
The following facts were set forth in NY C82943:
A sample was submitted and will be retained for reference. It is a small paperboard dispenser package containing ten loose 2 1/8” x 3 7/8” sheets of paper-like product identified as “Brownies Original Tobacco Wrapper”. The sheets have a brown color, and are said to be composed of 75.37% homogenized tobacco (also known as tobacco foil), 8.07% methylcellulose, and 14.58% carrier T6 (a teabag-like paper used to carry or hold tobacco). The sheets are said to be used for the hand-rolling of loose tobacco filler into cigarettes.
ISSUE:
Whether the tobacco wrappers are classified under heading 2403, HTSUS, as homogenized or reconstituted tobacco suitable for use as wrapper tobacco or under heading 4813, HTSUS, as cigarette paper?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings and any relative section or chapter notes.” In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI 2 through 6 may be applied in order.
The HTSUS headings under consideration in this case are as follows:
2403 Other manufactured tobacco and manufactured tobacco substitutes; “homogenized” or “reconstituted” tobacco; tobacco extracts and essences:
4813 Cigarette paper, whether or not cut to size or in the form of booklets or tubes:
Note 1 to Chapter 24, HTSUS, states in pertinent part:
The term “wrapper tobacco”, as used in this chapter, means that quality of leaf tobacco which has the requisite color, texture and burn, and is of sufficient size for cigar wrappers, and the term “filler tobacco” means all other leaf tobacco.
* * * * *
(Emphases in original).
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 EN’s to heading 2403 provide in pertinent part the following:
This heading covers:
* * * * *
(6) “Homogenised” or “reconstituted” tobacco made by agglomerating finely divided tobacco from tobacco leaves, tobacco refuse or dust, whether or not on a backing (e.g., sheet of cellulose from tobacco stems), generally put up in the form of rectangular sheets or strip. It can be either used in the sheet form (as a wrapper) or shredded/chopped (as a filler).
* * * * *
(Emphases in original). The relevant ENs to Chapter 48, HTSUS, are the following:
* * * * *
Paper consists essentially of the cellulosic fibres of the pulps of Chapter 47 felted together in sheet form. Many products, such as certain tea-bag materials, consist of a mixture of these cellulose fibres and of textile fibres (in particular man-made fibres as defined in Note 1 to Chapter 54). Where the textile fibres predominate by weight, the products are not regarded as paper and are classified as nonwovens . . . .
* * * * *
The pertinent ENs to Chapter 47 are as follows:
* * * * *
General
The pulp of this Chapter consists essentially of cellulose fibres obtained from various vegetable materials, or from waste textiles of vegetable origin.
* * *
Other materials used for making pulp include:
Cotton liners.
Recovered (waste and scrap) paper or paperboard.
Rags (particularly cotton, linen or hemp) and other textile wastes such as old ropes.
Straw, esparto, flax, ramie, jute, hemp, sisal, bagasse, bamboo and various other grasses and reeds.
* * * * *
The tobacco wrappers at issue in NY C82943 are composed of three different materials: homogenized tobacco, methylcellulose, and a material called “carrier T6”. Homogenized tobacco is a mixture of chopped scrap tobacco that is held together by the methylcellulose, which acts as an adhesive. The chopped scrap tobacco is mashed into a pulp and then it is reconstituted with the methylcellulose. The “carrier T6” material is a teabag-like paper that is added as part of the wrapper sheet. The tobacco wrappers are thicker than non-homogenized tobacco cigarette rolling papers and are used to make cigarillos by adding loose short filler tobacco in the tobacco wrapper and rolling into a cylinder like shape.
The wrappers were originally classified as cigarette papers under heading 4813, HTSUS, because the importer stated that the wrappers were to be used for hand-rolling of loose tobacco filler into cigarettes. The tariff term “paper” is not defined in the Chapter 48, HTSUS, legal notes. However, the ENs to Chapter 48 indicate that “paper” consists of cellulosic fibres of the pulps of Chapter 47. The wrappers do not meet the definition of “paper” as they are composed of homogenized tobacco, which is not a pulp of Chapter 47. Thus, the tobacco wrappers would not be classified under heading 4813, HTSUS, because the articles are composed of homogenized/reconstituted tobacco which is not a material used for making pulp for classification purposes.
Rather, EN(6) to heading 2403 describes homogenized/reconstituted tobacco as an agglomeration of various tobacco materials that may be on a backing and is fabricated and sold in the form of rectangular sheets. The tobacco wrappers here meet this description of homogenized/reconstituted tobacco, which is eo nomine classifiable under heading 2403. Furthermore, pursuant to Note 1 of Chapter 24, the homogenized /reconstituted tobacco used in the Brownies product is considered wrapper tobacco because it possesses a brown color, rough texture, slow burning quality, and is made into sufficient sized wrappers for use as cigarillos. A wrapper for cigars may be composed of materials in addition to tobacco and still be considered a tobacco wrapper as long as it contains a substantial amount of tobacco, does not lose its tobacco character (e.g., taste, aroma, identifiable chemical compounds), and is of a color consistent with that of the natural leaf tobaccos traditionally used as a wrapper for American cigars. See ATF Ruling 73-72; 26 U.S.C. § 5702. The methylcellulose and T6 in the instant articles act as binders and backing to form the tobacco sheets and do not alter the character of the reconstituted tobacco wrappers.
Therefore, the Brownies Original Tobacco Wrappers are classified under heading 2403, HTSUS, as “[o]ther manufactured tobacco and manufactured tobacco substitutes; ‘homogenized’ or ‘reconstituted’ tobacco; tobacco extracts and essences.”
HOLDING:
By the application of GRI 1, the Brownies Original Tobacco Wrappers are classified under subheading 2403.91.2000, HTSUSA, which provides for “[o]ther manufactured tobacco and manufactured tobacco substitutes; ‘homogenized’ or ‘reconstituted’ tobacco; tobacco extracts and essences: [o]ther: ‘[h]omogenized’ or ‘reconstituted’ tobacco: [s]uitable for use as wrapper tobacco.” The general, column one, rate of duty is 62 cents/kg.
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 on the World Wide Web at www.usitc.gov/tata/hts/.
Imported tobacco products are subject to additional federal excise taxes. Importers are instructed to check with the Alcohol and Tobacco Tax Bureau for updated information on federal excise tax liability for imported tobacco products at http://www.ttb.gov/.
EFFECTS ON OTHER RULINGS:
NY C82943, dated January 13, 1998, is hereby REVOKED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division