OT:RR:CTF:FTM H319673 PJG
JoAnne Colonnello
Center Director
Pharmaceuticals, Health, and Chemicals Center of Excellence and Expertise
U.S. Customs and Border Protection
301 E. Ocean Blvd., Suite 700
Long Beach, California 90802
ATTN: Ms. TaTanisha Lankford, Supervisory Import Specialist
RE: Internal Advice; Tariff Classification of Hemp Wraps
Dear Center Director:
This is in response to the internal advice request, initiated by Dentons Bingham Greenebaum LLP (“Dentons”), on behalf of their client, Crown Distributing LLC (“Crown Distributing”), dated July 16, 2021, concerning the tariff classification of certain hemp wraps under the Harmonized Tariff Schedule of the United States (“HTSUS”). The request was initially filed with the National Commodity Specialist Division (“NCSD”), who informed Dentons in a letter dated May 20, 2021, that if the inquiry concerned a current transaction, then Dentons would need to seek internal advice through the Center Director having jurisdiction over the entry. Instead, the request was filed directly with U.S. Customs and Border Protection (“CBP”) Headquarters, and we subsequently coordinated with the Pharmaceuticals, Health, and Chemicals Center of Excellence and Expertise. Samples of the product were submitted to CBP Headquarters, and we are retaining them in our sample room.
Dentons requested that certain information submitted in connection with this request be treated as confidential. Inasmuch as this request conforms to the requirements of 19 C.F.R.
§ 177.2(b)(7), the request for confidentiality is approved. The items specified by Dentons will not be released to the public and will be withheld from the published version of this decision.
FACTS:
The merchandise for which an internal advice on tariff classification was requested are hemp wraps that are described by the requester as not containing Tetrahydrocannabinol (“THC”) and are stated to be intended for use only with non-tobacco legal herbal smoking mixtures. The product is packaged in foil packs containing 4 hemp wraps and 4 filter tips. The requester indicates that the foil packages are meant to maintain a certain moisture content for the hemp wraps.
The requester describes the manufacturing process for the hemp wraps as follows:
The subject hemp wraps are manufactured using a hot slurry/cast process. The process starts with finely ground/pulverized hemp flour and herbal flour[] (combined, roughly 80% by weight) to which adhesive agents (guar gum (which is less than 10% by weight) and cellulose sheet (dissolved) (which is less than 10% by weight)) are added and heated to form a paste (with the consistency of toothpaste (approximately 80% moisture level)). The heated paste is dropped onto
a solid metal belt to a specific weight and density to create a cast film. The moist film on the metal bed is passed through a series of adjustable drying ovens until the film hits a desired moisture level, approximately 14.5%. The film is finally rolled into a bobbin consisting of a continuous sheet. The bobbins are stored in a refrigerated state to maintain the target moisture level. The bobbins are cut to width size and unrolled; moisture is added to bring up the moisture content to the
consumer level of 27% (flavoring, e.g., grape, is also added to certain varieties); the sheet is then cut to individual sheet length size, and packaged (typically 4 to a package) in foil consumer packaging to maintain the target consumer moisture content.
The requester also indicates that the herbal flour is made of hemp flour and taro flour.
Dentons believes the product to be properly classified under subheading 5603.92.0090, HTSUSA (“Annotated”), which provides for “Nonwovens, whether or not impregnated, coated, covered or laminated: Other: Weighing more than 25 g/m2 but not more than 70 g/m2: Other” and the product has been previously entered under this subheading. The current entry at issue was entered on May 8, 2022.
Samples of the hemp wraps were sent to the CBP Laboratories and Scientific Services Directorate (“CBP laboratory”) for analysis. The CBP laboratory determined, in relevant part, that the hemp wraps are not textile and “not non-woven, there is no web of fibers, no mechanical entanglement, [and] no thermal bonding.” The CBP laboratory also stated that the hemp wraps are constructed of cellulosic material and that there is no felting present.
ISSUE:
What is the proper tariff classification of the hemp wraps?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) is determined 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 of the tariff schedule 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 may then be applied.
The 2022 HTSUS provisions under consideration are as follows:
1404 Vegetable products not elsewhere specified or included:
* * *
1404.90 Other:
* * *
1404.90.90 Other:
* * *
4706 Pulps of fibers derived from recovered (waste and scrap) paper or paperboard or of other fibrous cellulosic material:
* * *
4813 Cigarette paper, whether or not cut to size or in the form of booklets or tubes:
* * *
5603 Nonwovens, whether or not impregnated, coated, covered or laminated:
* * *
Other:
* * *
5603.92.00 Weighing more than 25 g/m2 but not more than 70 g/m2:
* * *
5603.92.0090 Other
Note 1 to Chapter 14, HTSUS, states as follows:
This chapter does not cover the following products which are to be classified in section XI: vegetable materials or fibers of vegetable materials of a kind used primarily in the manufacture of textiles, however prepared, or other vegetable materials which have undergone treatment so as to render them suitable for use only as textile materials.
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). While neither legally binding nor dispositive, the ENs “provide a commentary on the scope of each heading” of the HTSUS and are “generally indicative of [the] proper interpretation” of these headings. See id.
The General EN to Chapter 47 states, in pertinent part:
The pulp of this Chapter consists essentially of cellulose fibres obtained from various vegetable materials, or from waste textiles of vegetable origin.
The General EN to Chapter 48 states, in pertinent part:
* * *
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 (heading 56.03).
The EN to 56.03 states, in pertinent part:
A nonwoven is a sheet or web of predominantly textile fibres oriented directionally or randomly and bonded. These fibres may be of natural or man-made origin. They may be staple fibres (natural or man-made) or man-made filaments or be formed in situ.
* * *
The requester argues that the subject hemp wraps are not classifiable under Chapter 48, HTSUS. In accordance with the General EN to Chapter 47 and Chapter 48, paper is made from felted cellulosic fibers obtained from vegetable materials. The CBP laboratory determined that the hemp wraps are constructed of cellulosic material that is not felted. Accordingly, we agree that the subject merchandise is not classifiable under Chapter 48, HTSUS.
The requester suggests that the subject hemp wraps are classifiable under heading 5603, HTSUS. Heading 5603, HTSUS, provides for “Nonwovens, whether or not impregnated, coated, covered or laminated.” In accordance with EN to 56.03, a “nonwoven is a sheet or web of predominantly textile fibres.” In this case, the CBP laboratory determined that the hemp wraps are not constructed of textile fibers. Since they are not constructed of textile fibers, they cannot meet the definition of “nonwoven” provided in EN to 56.03. Accordingly, the hemp wraps do not fall within the scope of heading 5603, HTSUS.
We next consider heading 1404, HTSUS, which provides for “Vegetable products not elsewhere specified or included.” Heading 1404, HTSUS, is a basket provision and therefore, the subject merchandise is classified in heading 1404, HTSUS, by application of GRI 1 only if it is a vegetable product and it is not prima facie classifiable elsewhere. See R.T. Foods, Inc. v. United States, 757 F.3d 1349, 1354 (Fed. Cir. 2014) (stating that a provision that contains the terms “not elsewhere specified or included” is a basket provision, in which classification of a given product “is only appropriate if there is no tariff category that covers the merchandise more specifically”). Since we have determined that the subject merchandise is not classifiable in other tariff provisions, it is appropriate to consider heading 1404, HTSUS.
The requester argues that the subject hemp wraps are not classifiable under heading 1404, HTSUS, and bases this argument on the language of Note 1 to Chapter 14, HTSUS, which states that “[t]his chapter does not cover the following products which are to be classified in section XI: vegetable materials or fibers of vegetable materials of a kind used primarily in the manufacture of textiles, however prepared, or other vegetable materials which have undergone treatment so as to render them suitable for use only as textile materials.” Note 1 to Chapter 14, HTSUS, does not preclude the subject hemp wraps from classification under Chapter 14, HTSUS, because the subject hemp wraps are products that are intended for use with non-tobacco legal herbal smoking mixtures. In other words, they are not used primarily in the manufacture of textiles or suitable for use only as textile materials.
Based on the information provided by the requester, the subject merchandise is composed of hemp flour and taro flour. Hemp and flour are both classifiable under Section II (Vegetable Products) of the HTSUS. Moreover, we note that EN 14.04 states, in relevant part, as follows:
This heading covers all vegetable products, not specified or included elsewhere in the Nomenclature.
It includes:
* * *
(F) Other vegetable products.
These products include:
(5) Flours of corozo, of doum palm “nuts”, of coconut shell or the like.
This non-exhaustive list of exemplars of “other vegetable products” suggests that vegetable products that are flours are also included in the scope of heading 1404, HTSUS.
The inclusion of the adhesive agents, guar gum and cellulose sheet, do not impact the classification under GRI 1 of the subject merchandise under heading 1404, HTSUS, because the final product that is imported into the United States still falls within the broad scope of “vegetable product.” The guar gum and cellulose sheet are only used to adhere the herbal flour (made from products of Section II, HTSUS) by forming a paste, which is eventually formed into the subject sheets that are used for smoking non-tobacco legal herbal smoking mixtures. We also note that CBP has previously classified products that function like cigarette or cigar wrappers in heading 1404, HTSUS. See, e.g., HQ H264891 (April 5, 2016); NY F86795 (May 19, 2000); and NY N304097 (May 16, 2019).
Moreover, similar to cigarette paper of heading 4813, HTSUS, wherein the ENs to 48.13 indicate that “paper in the form of tubes may also be fitted with filters…or the tip ends may be reinforced with paper of a heavier quality,” we do not find that the small paper filter tips in this case impact the classification of the subject merchandise under heading 1404, HTSUS. Accordingly, the subject merchandise is classified under heading 1404, HTSUS, and specifically in subheading 1404.90.90, HTSUS, which provides for “Vegetable products not elsewhere specified or included: Other: Other.”
HOLDING:
Under the authority of GRI 1 and 6, the hemp wraps are classified under heading 1404, HTSUS, and specifically in subheading 1404.90.90, HTSUS, which provides for “Vegetable products not elsewhere specified or included: Other: Other.” The 2022 column one, general rate of duty is Free.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at https://hts.usitc.gov/current.
You are to mail this decision to the requester no later than 60 days from the date of the decision. At that time, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division