CLA-2-ENF-4-02-RR:CR:GC 967666 IOR
Tariff No: 2403.10.2020; 9613.20.0000; 9614.20.1500; 9614.90.8090
Stefan Kollasch
Product Manager
Piparette Pty Ltd
Level 5, 300 Adelaide St
Brisbane QLD 4000
Australia
RE: Revolution™ pipe; Evolution™ pipe; Piparette™ filter modules; pipe tobacco, and Light ‘n Store ashtray/lighter
Dear Mr. Kollasch:
This is in response to your ruling request of February 14, 2005, to the National Commodity Specialist Division (NCSD) New York, requesting a binding ruling on the classification of the Piparette™ Tobacco Smoking System, which consists of a Revolution™ pipe, an Evolution™ pipe, Piparette™ filter modules, pipe tobacco, and Light ‘n Store ashtray/lighter combination, under the Harmonized Tariff Schedule of the United States (HTSUS). Your ruling request was referred to this office by the NCSD for reply. Samples of the products were submitted to the NCSD and forwarded to this office. In addition, you have provided additional information by submission dated April 23, 2005, and telephone conversation on April 22, 2005.
FACTS:
The Piparette™ Tobacco Smoking System will be marketed in the U.S. as a pipe smoking program designed for both current pipe and cigarette smokers, to help customers gradually reduce the amount of tobacco they smoke, each time they smoke, and to minimize the amount of side stream smoke impacting other people. To achieve this goal, the system offers smokers pipes with filters, and pipe bowl sizes that accommodate less tobacco than is typically smoked in a cigarette. You have stated that there is no independent advertising for the subject articles.
The merchandise consists of the Revolution™ pipe, Evolution™ pipe, Piparette™ Filter Modules, pipe tobacco, and Light ‘n Store ashtray lighter combination. The Revolution™ pipe, and the Evolution™ pipe, are comprised of multiple components and can be disassembled. The pipe bowls are traditional wooden bowls. The filter modules, and mouthpieces are replaceable. The filter modules not only filter the smoke but also serve as an integral part of the pipe stem.
The Revolution™ pipe is approximately 4 ¾ inches long and 1 ¼ inch wide at its widest point, and consists of four separable components. Two samples of the Revolution™ Pipe were submitted. The first, consisting of a plastic bowl housing is a prototype, but demonstrates the larger bowl size and the final bowl shape. The imported version would consist of a metal housing and arms. In the prototype sample, a hole, approximately ½-inch in diameter and ½-inch deep, drilled into the side of a short wooden dowel, serves as the pipe bowl. The dowel, about 1-5/8 –inches long, is encased in a plastic housing with a short sleeve at one end which slides over the end of the pipe body. Plastic arms on either side of this housing attach to each end of the dowel, and extend parallel to the length of the pipe stem. These arms, about 2-inches in length, are connected to either side of the dowel at one end and, at the other, are joined by a curved band of plastic. Manipulation of these arms rotates the pipe bowl in the plastic housing.
There are three basic positions for the arm-piece in using the pipe. First, when the arm-piece is moved forward, so that the arms are parallel to the body of the pipe, the pipe bowl will be positioned horizontally, facing into the pipe body. The pipe body is hollow and serves as a storage compartment for a day’s supply of tobacco. By tapping the pipe on its end, the tobacco moves from the pipe body into the pipe bowl. Next, when the pipe bowl has been filled with tobacco, the arm piece is moved to a right angle directly beneath the pipe. This moves the pipe bowl to a vertical position within the housing, so that the full bowl opening is exposed through the hole at the top of the pipe for smoking. Finally, when smoking has been completed, the arm-piece is brought up under the pipe, so that it is parallel with the pipe body, the rounded cross-piece of the handle fitting the contour of the pipe body. This moves the opening of the pipe bowl facing forward, toward the front of the pipe, closing the pipe bowl turning it in towards the housing.
The pipe body itself is plastic and hollow, about 1-inch across and 7-8-inch in height. The housing is not completely circular because a circular channel, about ½-inch in diameter, runs lengthwise along the bottom of the housing. This channel accommodates the plastic filter tube and mouthpiece, which snap into the channel. This pipe comes in two styles, each style having a different bowl capacity. One pipe has a bowl capacity of 0.30 grams (large bowl) of tobacco, and one pipe has a bowl capacity of 0.15 grams (small bowl) of tobacco. Both pipes have smaller bowls than more traditional pipes, since their capacities are calibrated against the amount of tobacco actually consumed with one cigarette, rather than the amount of tobacco contained in a cigarette, 20 to 30 percent of which is estimated to be wasted. Following the QUIT program sequence, a smoker will eventually move from the 0.3 gram to the 0.15 gram bowl sizes, as he gradually becomes used to smoking less.
The Evolution™ pipe consists of five components. The first, and basic, component is a slotted metal body. A wooden bowl, about ½-inch in diameter, with grooves cut into each side at the bottom, is fitted to slide into the end of the body on the upper slot. The plastic filter tube, attached to the mouthpiece is inserted, along the lower groove, under the pipe bowl. Finally, a flat, plastic piece, grooved along the top and bottom, slides into the top of the metal pipe body up to the base of the bowl, thus holding the bowl in place. The groove on the top of this plastic piece is designed to hold a flat cigarette lighter, slotted along the bottom edge (the lighter portion of the ashtray/lighter combination).
Both the Revolution™ pipe and the Evolution™ pipe, will only be sold packaged with Piparette™ Filter Modules and a mouthpiece.
The replacement filters for the pipes, labeled as Piparette™ Filter Modules will be packaged as 10 filter modules and one disposable polypropylene mouthpiece in each retail box. The filter modules consist of plastic tubes, approximately 2¼-inches in length and 3/8-inch in diameter, each containing a filter of cellulose acetate. Fixed to one end of the tube is a cylindrical connector, about 7/8-inch long. A small passage, about 1/8-inch in diameter, runs through this connector parallel to the length of the tube till, near the exposed end, it runs at right angles to a flattened surface on one side of the piece. Affixed to the flattened surface is a small white rubber gasket, which is designed to press against the bottom of the pipe bowl and, thus, form the beginning of the stem. In addition to being packaged for sale with the smoking pipes, these filter modules will also be packaged with a retail pouch of smoking tobacco, or they will be sold as a separate product.
You have provided us with samples of two different types of tobacco. One is a standard cut of roll your own or pipe tobacco suitable for the Evolution™ pipe. The second is a fine-cut in “tea-leaf” size pieces suitable for the Revoution™ pipe, which can be fed into the bowl of the pipe through the auto-loading function. You state that the required tobacco format will be supplied by a U.S. tobacco manufacturer or their agent, and sold together with the Piparette™ filter modules.
One final product, the Piparettetm Light ‘n Store, ashtray and lighter combination, is a combination of a lighter and a plastic container for cigarette butts. A sample of the lighter was not provided, instead a plastic model in the shape of the lighter was provided. The plastic container for the cigarette butts is approximately 7/8-inch high, 4 inches at its longest point, and ¾ wide, tapering to about ½-inch at the back end. The front contains a removable head with a ½-inch diameter hole at the top. The upper surface, which extends back about 2 ¾-inches, before tapering down to the bottom surface, is grooved to accept a piggy-back, cigarette lighter, in much the same way as with the Evolution™ smoking pipe. The end of the cigarette lighter acts as a cover to the hole at the top of the butt-holder. The lighter will be a refillable butane lighter.
The submission included two-sided colored information sheets for the Revolution™ and Evolution™ pipes, and the Light ‘n Store. The Piparette™ slogans on the information sheets are “smoking with fewer drawbacks” and “join the revolution.” The text on the front side of each information sheet is as follows:
Congratulations! By choosing Piparette, you are now one step closer to becoming a more responsible smoker. Your actions will make a difference both to yourself, those around you and to the environment. Smoking satisfaction is achieved with less tobacco and through a superior filter system. Piparette is the ‘Diet’ alternative to cigarettes providing you with a cleaner smoking system and a more convenient product at a fraction of the cost.
The front side of each sheet also depicts the Revolution™ and Evolution™ pipes, and the Light ‘n Store. The reverse side of each sheet contains information regarding the particular product, operating instructions and accompanying illustrations. The information sheets refer to using less tobacco and an alternative to cigarettes.
ISSUES:
1) What is the classification of the Revolution™ pipe, Evolution™ pipe, Piparette™ filter modules, pipe tobacco, and Light ‘n Store ashtray/lighter combination, under the HTSUS.
2) Whether the Revolution™ and Evolution™ pipes are drug paraphernalia, the importation of which is unlawful, under 21 U.S.C. §863.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the GRIs. The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 GRIs 2 through 6 may then be applied in order.
The subheadings under consideration are:
2403 Other manufactured tobacco and manufactured tobacco
substitutes; “homogenized” or “reconstituted” tobacco; tobacco
extracts and essences:
2403.10 Smoking tobacco, whether or not containing tobacco substitutes in any proportion:
2403.10.20 Prepared for marketing to the ultimate consumer in
the identical form and package in which imported…
* * *
3926 Other articles of plastics and articles of other materials of headings
3901 to 3914:
3926.90 Other:
3926.90.98 Other………………………………………………………
* * *
9613 Cigarette lighters and other lighters, whether or not mechanical or
electrical, and parts thereof other than flints and wicks:
9613.20.00 Pocket lighters, gas fueled, refillable………………………….
* * *
9614 Smoking pipes (including pipe bowls) and cigar or cigarette holders, and parts thereof:
9614.20 Pipes and pipe bowls:
Of wood or root:
9614.20.15 Other……………………………………………….
9614.90 Other:
9614.90.80 Other……………………………………………………….
The pipes, packaged, with the filter modules are classified as “smoking pipes” in heading 9614, HTSUS, specifically subheading 9614.20.15, HTSUS. Since the pipes are complete in themselves, as packaged, the filter modules and mouthpieces represent replacement parts. The box of Piparette™ Filter Modules, with mouthpiece, whether packaged with the pipes, tobacco, or as a stand alone product are classified as “parts” in that same heading, specifically in subheading 9614.90.80, HTSUS.
The smoking tobacco, imported in retail packaging as smoking tobacco, and whether or not packaged with the filter modules is classified under heading 2403, HTSUS, specifically subheading 2403.10.20, HTSUS. Importers of tobacco products, such as retail packaged pipe tobacco, are required to have an import permit, issued by the Alcohol and Tobacco Tax and Trade Bureau (TTB). Further, imports of certain U.S. tobacco products, exported from the United States marked for export, are precluded from re-entry into the U.S. (See 26 U.S.C. §5754.) Questions regarding the applicability of 26 U.S.C. §5754 to the tobacco products described in this ruling request may be addressed to the TTB
at the following location:
Alcohol and Tobacco Tax & Trade Bureau
Regulations and Procedures Division
1310 G Street, N.W.
Washington, D.C. 20220
With regard to the Light ‘n Store, ashtray/lighter combination, GRI 3(b) provides that composite goods which are prima facie classifiable under two or more headings, “shall be classified as if they consisted of the material or component which gives them their essential character.” In this case, the Light ‘n Store is a composite article composed of an ashtray and a lighter, each of which are classifiable under separate headings. The ashtray is prima facie classifiable in heading 3926, HTSUS, which provides for “[o]ther articles of plastics,” and the lighter is classifiable in heading 9613, HTSUS, which provides for “[c]igarette lighters and other lighters.” In light of the fact that both the lighter and ashtray are of importance to the purchaser, but only a prototype of the lighter was provided as a sample, the essential character of the combination article cannot be determined and under GRI 3(c), the article is classified under the heading which occurs last in numerical order among those which equally merit consideration. The Light ‘n Store is classified in heading 9613, HTSUS, specifically subheading 9613.20.00, HTSUS.
The importation of cigarette lighters is subject to regulations administered by other U.S. Government agencies. Questions about import requirements for lighters may be addressed to the following agency:
Consumer Products Safety Commission (CPSC)
Office of Compliance
4330 East West Highway
Bethesda, MD 20814-4408
As to whether the pipes are drug paraphernalia, 21 U.S.C. §863(a)(3) provides that 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. 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.
Section 863(f)(2), provides an exemption for 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 accessory.”
The record presented addresses items 1), 2), 3), 4) and 7). The information submitted includes instructions and descriptive materials to accompany the pipes, consistent with use of the pipes for smoking tobacco. The manner in which the pipes are to be displayed, including the tobacco is consistent with use of the pipes for smoking tobacco. There is no independent advertising of the pipes. The promotional materials as well as the literature to accompany the pipes indicates that there is a legitimate use of the pipes in the community. With regard to items 5), 6) and 8), we do not have any information. Based on the foregoing, we find that the pipes are not primarily intended or designed for use in connection with controlled substances, and thus the pipes are not drug paraphernalia. Further, we conclude that the pipes are intended for use with tobacco products.
HOLDING:
1) By application of GRI 1, the Revolution™ and Evolution™ pipes, packaged with the filter modules are classified in subheading 9614.20.1500, HTSUSA, as “[s]moking pipes (including pipe bowls) and cigar or cigarette holders, and parts thereof: Pipes and pipe bowls: Of wood or root: Other,” with a column one, general duty rate of 0.4 ¢ each + 3.2% ad valorem.
By application of GRI 1, the Piparette™ Filter Modules, whether packaged separately or with the pipes or with tobacco, are classified in subheading 9614.90.8090, HTSUSA, as “[s]moking pipes (including pipe bowls) and cigar or cigarette holders, and parts thereof: Other…Other,” with a column one, general duty rate of 0.5¢ each + 3% ad valorem. The specific duty rate is applicable to each item in the set.
By application of GRI 1, the tobacco packages, packaged with the filter modules, are classified in subheading 2403.10.2020, HTSUSA, as “[o]ther manufactured tobacco and manufactured tobacco substitutes; “homogenized” or “reconstituted” tobacco; tobacco extracts and essences: Smoking tobacco, whether or not containing tobacco substitutes in any proportion: Prepared for marketing to the ultimate consumer in the identical form and package in which imported…Pipe tobacco,” with a column one, general duty rate of 32.8¢/kg.
By application of GRI 1 and 3, the Light ‘n Store ashtray/lighter combination is classified in subheading 9613.20.0000, HTSUSA, as “[ci]garette lighters and other lighters, whether or not mechanical or electrical, and parts thereof other than flints and wicks: Pocket lighters, gas fueled, refillable,” with a column one, general duty rate of 9% ad valorem. 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 internet at www.usits.gov/tata/hts/.
2) The Revolution™ and Evolution™ pipes are not drug paraphernalia under 21U.S.C. §863, and are not prohibited from importation.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division