Micro pipe of brass; tobacco; EN 96.14; drug paraphernalia; 21 U.S.C. 863(a)(3), 863(d), 863(e)

HQ 962401 January 15, 1999 CLA-2/ENF-4-02 RR:CR:GC/RR:IT:IP 962401/467094 PH/MS CATEGORY: Classification TARIFF NO.: 9614.20.80 Mr. Dominic Teh Sun Bay International 5250 W. Century Boulevard, Suite 608 Los Angeles, CA 90045 RE: Micro pipe of brass; tobacco; EN 96.14; drug paraphernalia; 21 U.S.C. 863(a)(3), 863(d), 863(e) Dear Mr. Teh: This is in reference to your request on behalf of Lynn’s Company, to the Director, Customs National Commodity Specialist Division, New York, N.Y., dated November 16, 1998, for a ruling as to the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a "JOONBUG deluxe micro pipe 1". You noted that the ruling request was made pursuant to the advice of Customs Fines, Penalties and Forfeitures office in Los Angeles, in regard to a determination by that office that the pipes are drug paraphernalia and not smoking tobacco pipes. A sample was provided. Your letter was referred to this office for reply. FACTS: The merchandise consists of a brass article approximately 3 1/4" long, 1" in height, and 3/4" in width. It has a small "bowl" (approximately 5/8" in diameter, with depth approximately the same. A cylindrical hollow tube, attached to the outside of the "bowl", is described as a "5 bowl tobacco container ... also used to tamp the tobacco." The "stem" is a straight tube approximately 1/8" in diameter, with a rubber washer at the end opposite the "bowl." There is a "poker" affixed to the outside of the "bowl" which has a steel tip which is stated to be used to stir the "bowl", clean it, and remove tar. A swivel bowl cover is attached to the top of the "bowl". You provided a list of customers "attesting to the fact that these are sold as tobacco smoking pipes." The documentation submitted with the ruling request relates to a patent on the ornamental design of a smoking pipe named Proto Pipe Deluxe under Letters Patent No. Des 259,587. The documentation included with the documents indicates that the "tar trap is removed by pushing through center hole with poker". We note that the submitted sample does not have a removable tar trap beneath the bowl. The bowl’s shell is solid brass with no opening at the bottom to permit the removal of a tar trap. Hence, we conclude that the sample does not contain a removable tar trap beneath the bowl and that the sample is not identical to the documentation submitted. We also note that the patent was issued on June 16, 1981, for a period of 14 years and has expired. ISSUES: Whether the brass "JOONBUG deluxe micro pipe 1" is classifiable as an other smoking pipe in subheading 9614.20.80, HTSUS. Whether the brass "JOONBUG deluxe micro pipe 1" is drug paraphernalia, the importation of which is unlawful, under 21 U.S.C. 863. LAW AND ANALYSIS: CLASSIFICATION Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6, taken in order. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 8980, published in the Federal Register August 23, 1989 (54 FR 35127, 35128). The applicable HTSUS provisions are as follows: 9614 Smoking pipes (including pipe bowls) and cigar or cigarette holders, and parts thereof: 9614.20 Pipes and pipe bowls: Of wood or root: * * * 9614.20.60 Pipes and bowls wholly of clay and pipes with bowls wholly of clay. 9614.20.80 Other. The EN for heading 9614, EN 96.14 states that the heading covers "[s]moking pipes of all kinds (including calumets, chibouks or Turkish pipes, hookahs, etc.)" (emphasis added). The article is a smoking pipe. Accordingly, the article is within the heading. Since the article is a pipe, it is classifiable within subheading 9614.20. Because it is neither of wood or root nor wholly of clay or with a bowl of clay, it is classifiable in subheading 9614.20.80, HTSUS, the provision for smoking pipes, other (than of wood or root or of clay or with a bowl of clay). 21 U.S.C. 863 Pursuant to 21 U.S.C. 863(a)(3) the importation or exportation of drug paraphernalia is unlawful. The term drug paraphernalia, pursuant to section 863(d) means any equipment, product, or material of any kind which is primarily intended or designed for use in connection with controlled substances. Included in the list of paraphernalia are metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls and water pipes. The statute provides guidance with regard to factors to be considered in determining whether an article is drug paraphernalia. Pursuant to section 863(e), in addition to all other logically relevant factors, the following may be considered: (1) instructions, oral or written, provided with the item concerning its use; (2) descriptive materials accompanying the item which explain or depicts its use; (3) national and local advertising concerning its use; (4) the manner in which the item is displayed for sale; (5) whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products; (6) direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise; (7) the existence and scope of legitimate uses of the item in the community; and (8) expert testimony concerning its use. Pursuant to section 863(f)(2), this section shall not apply to any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper or accessories. The record as presented contains none of the documentation referenced in section 863(e) that would indicate that the product is traditionally intended for tobacco use. The list of customers attesting to the fact that the product is sold as a tobacco smoking pipe is not dispositive. Inasmuch as the sample is a metal pipe containing a punctured metal bowl, we find that the product falls within the list of drug paraphernalia, the importation of which is unlawful. HOLDINGS: The brass "JOONBUG deluxe micro pipe 1" is classifiable as an other smoking pipe in subheading 9614.20.80, HTSUS. The 1998 general column one rate of duty for goods classifiable in subheading 9614.20.80 is 0.3¢ each + 3.8% ad valorem. The brass "JOONBUG deluxe micro pipe 1" falls within the list of drug paraphernalia, the importation of which is unlawful. Sincerely, John Durant, Director Commercial Rulings Division