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HQ 116316

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December 9, 2004

RES-2:RR:IT:EC 116316 TLS

CATEGORY: RESTRICTED MERCHANDISE

Mr. Paul Vroman
Danzas AEI Intercontinental
2660 20th Street
Port Huron, Michigan 48060

RE: Restricted Merchandise; 21 U.S.C. § 863; Drug paraphernalia; glass pipes

Dear Mr. Vroman:

This is in response to your request for a ruling on behalf of MS Enterprises, dated August 3, 2004, that you submitted to the National Commodity Specialist Division (NCSD) of the New York office of the U.S. Customs and Border Protection (CBP). NCSD forwarded your request to this office for determination. Our response is set forth below.

FACTS:

On behalf of MS Enterprises, you submitted a ruling request on the proper tariff classification of glass pipes. NCSD responded to that request by letter dated July 1, 2004, stating that it was returning your request because it needed samples before it could issue a ruling. You responded in turn with the subject ruling request and provided a sample along with it.

The sample glass pipe is a single-piece construction that is a shaped hollow tube. The glass is heatproof and is similar to the glass used to form pyrex beakers and the like. The pipe is three and one-forth inches (3¼”) in length and has a shallow, circular bowl at one end leading to a stem of about two inches in length with a hole at the end. The stem expands in diameter from five-eighths inch (5/8”) diameter where it meets the bowl to seven-eighths inch (7/8”) diameter halfway down the stem, before narrowing to a one-eighth inch (1/8”) diameter at the tip where the mouth meets the stem. There is a small hole on the right exterior bowl of the pipe which is described as a “carburetor.” The carburetor allows additional air to be mixed with the smoke inside the bowl as the smoker inhales. The pipe is decorated in a blue, yellow, and gold pattern.

ISSUE:

Whether admission of the subject glass pipe, as described above, is prohibited under 21 U.S.C. § 863.

LAW AND ANALYSIS:

Title 21, United States Code, section 863(a) (21 U.S.C. § 863(a)), provides in pertinent part the following:

In general

It is unlawful for any person-
(1) to sell or offer for sale drug paraphernalia; (2) to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or (3) to import or export drug paraphernalia.

Under 21 U.S.C. § 863(d), the term “drug paraphernalia” is defined as “any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under this subchapter. It includes items primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, hashish oil, PCP, or amphetamines into the human body, such as- metal, wooden, acrylic, glass,... bowls;
(8) carburetor pipes;.... (Emphasis added.)

In determining whether an item constitutes drug paraphernalia, 21 U.S.C. § 863(e) provides that 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 depict 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.

Under 21 U.S.C. § 863(f)(2), it is provided that section 863 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 accessory.”

In your submission, the subject pipes are designated as merchandise specifically listed in 21 U.S.C. § 863(d) as drug paraphernalia, e.g., glass pipes. The small bowl, which is suitable only for small amounts of material consistent with the ingestion of controlled substances, leads us to conclude that this is an article of drug paraphernalia. See Customs Ruling HQ 459156 (December 18, 1995). In addition, there is nothing in your submission, e.g., any of the documentation listed in 21 U.S.C. § 863(e), which shows that the subject pipes are traditionally intended for use with tobacco products. Consequently, we find that the subject pipes are considered drug paraphernalia pursuant to 21 U.S.C. § 863.

HOLDING:

The subject pipe is drug paraphernalia and is therefore prohibited from importation, pursuant to 21 U.S.C. § 863.

Sincerely,

Glen E. Vereb
Chief

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