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HQ 114968




May 2, 2000

RES-2-RR:IT:EC 114968 CC

CATEGORY: RESTRICTED MERCHANDISE

Paul S. Anderson, Esq.
Sonnenberg & Anderson
333 West Wacker Drive
20th Floor
Chicago, IL 60606

RE: Pipe; drug paraphernalia; 21 U.S.C. § 863

Dear Mr. Anderson:

This is in response to a request that Customs issue a classification ruling concerning a smoking assembly which holds a pipe, lighter and smoking material to be imported by Sezco Products, LLC (“Sezco”). Initially, letters of September 28, 1999, and January 5, 2000, were sent to our National Commodity Specialist Division in New York through the Camelot Company. The ruling request was forwarded to Customs Headquarters, with a request that we determine whether the subject merchandise constitutes drug paraphernalia, the importation of which is prohibited by 21 U.S.C. § 863. You have made a supplemental submission on behalf of Sezco, dated April 14, 2000, concerning this matter.

FACTS:

A sample of the merchandise has previously been submitted with the ruling request. You state that the imported merchandise will be substantially identical to the sample except that it will be imported filled with butane, and with descriptive literature, product descriptions, and other materials as attached to your supplemental submission.

The submitted sample is a flat, rectangular, metal case that measures 5/8-inch in height, 2 1/16-inches in width, and 4 inches in length. The lengthwise side is rounded, and the other side is squared. On the top end, at the center, is an aperture for a gas lighter. Extending from the top about 1 1/8-inches on the squared side, and fitting the contours of the rectangle, is a metal slide, which when pushed up activates the lighter. About ½-inch beneath the lighter aperture, on either side of the piece, a thin glass slot, about ¾-inch long, allows the user to monitor the level of the lighter’s fuel reservoir.

The bottom end of the article consists entirely of a moveable strip that has limited movement within its grooves in either direction. When the slide is moved towards the rounded edge, it opens access to a storage compartment that is about 2 inches deep, 1 ½-inches wide and 3/8-inch thick. If the slide is moved toward the squared edge, a cylindrical opening appears, in which is housed an all-metal, one-piece smoking pipe on a spring. The smoking pipe appears to be made of brass and is roughly cylindrical in shape, about 3 ½ -inches long. The pipe bowl is in line with the pipe stem. It consists of the final quarter inch of the pipe, expanded to the full ¼-inch diameter of the metal cylinder. Presumably, this assembly will allow the lighter, pipe, and smoking supply to be carried in a single unit, and the article’s dimensions permit ready transport in either a shirt or jacket pocket.

ISSUE:

Whether the subject merchandise is drug paraphernalia, the importation of which is unlawful, under 21 U.S.C. § 863.

LAW AND ANALYSIS:

21 U.S.C. § 863(a) provides that it is unlawful for any person to import or export drug paraphernalia. Pursuant to 21 U.S.C. § 863(d), the term “drug paraphernalia” means any equipment, product, or material of any kind which is primarily intended or designed for use in connection with controlled substances. Examples of drug paraphernalia, listed in 21 U.S.C. § 863(d), include, among other things, metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls; water pipes; chamber pipes; carburetor pipes; electric pipes; air-driven pipes; chillums; bongs; and ice pipes or chillers.

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.

Pursuant to 21 U.S.C. § 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 accessory.

In your submission, the subject pipe is designated as merchandise specifically listed in 21 U.S.C. § 863(d) as drug paraphernalia, e.g., metal pipes. The small bowl, which is suitable only for small amounts of material consistent with the ingestion of controlled substances, leads us to find reasonable grounds for believing that this is an article of drug paraphernalia. See Headquarters Ruling (HQ) 459156, dated December 18, 1995. In addition, your submission does not establish, pursuant to 21 U.S.C. § 863(e), that the subject pipe is traditionally intended for use with tobacco products. Consequently, we find that the subject merchandise is considered drug paraphernalia pursuant to 21 U.S.C. § 863.

You argue that because this article is patented, and has been approved for shipment by the U.S. Postal Service and the Department of Transportation, it should be lawful to import it into the United States. In addition, you claim that the composition of the subject pipe should not automatically render it drug parapher- nalia due to the language of 21 U.S.C. § 863. You state that the language of that statute, containing a list of drug paraphernalia including pipes of metal, wood, acrylic, plastic and ceramic, is “so broad that it would seem to cover the entire universe of any conceivable pipe product, which would result in a total embargo on the importation of pipes of any composition.”

Any determination by another government agency that the subject merchandise may be shipped or is patented would have no bearing on the issue of whether it is considered drug paraphernalia under 21 U.S.C. § 863. Concerning your argument that 21 U.S.C. § 863 is overly broad, many defendants have argued that the statute is unconstitutional due to vagueness. The courts have recognized that because there exists a level of ambiguity for certain items, in that some items can be used for both legitimate and illegitimate purposes, there exists a level of ambiguity in the statute. But the courts have found that the statute provides fair warning of what is considered drug paraphernalia and therefore is not unconstitutionally vague. See e.g., Posters ‘N’ Things, LTD. v. United States, 114 S.Ct. 1747 (1994), United States v. Mishra, 979 F.2d 301 (3rd Cir. 1992), United States v. 57,261 Items of Drug Paraphernalia, 869 F.2d 955 (6th Cir. 1989), and United States v. Main Street Distributing Inc., 700 F.Supp. 655 ( E.D.N.Y. 1988). In addition, see Validity and Construction of Drug Paraphernalia Act, 123 A.L.R. Fed. 637. In addition, we note that the courts have been able to apply the statute to differentiate what constitutes drug paraphernalia as opposed to what does not constitute drug paraphernalia. Consequently, it is clear that the statute does not proscribe the importation of all pipes. Also, we note that the composition of the subject pipe is only one factor in considering it to be drug paraphernalia.

Because the importation of this article is unlawful and prohibited, a determination as to the classification is not appropriate. In this regard, we note 19 CFR § 177.7(a), which provides in pertinent part:
no ruling letter will be issued with regard to transactions or questions which are essentially hypothetical in nature or in any instance in which it appears contrary to the sound administration of the Customs and related laws to do so.

You have also asked if the merchandise is considered drug paraphernalia if it is imported without the pipe. If it is not considered drug paraphernalia, you request that we classify the article.

It is the pipe that is considered drug paraphernalia. Without the pipe, the merchandise consists of a lighter and a storage compartment. Consequently, if the merchandise is imported without the pipe, it is not considered drug paraphernalia and thus its importation would not be unlawful pursuant to 21 U.S.C. § 863.

Classification of merchandise under the Harmonized Tariff Schedule of the United States (HTSUS) is in accordance with the General Rules of Interpretation (GRI’s), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

For classification of the merchandise without the pipe, the merchandise consists of two components, which are the storage compartment and the lighter. If made of steel, the storage compartment would be classifiable in Heading 7326, HTSUS, which provides for other articles of iron or steel. If made of aluminum, the storage compartment would be classifiable in Heading 7616, HTSUS, which provides for other articles of aluminum. The lighter is classifiable in Heading 9613, HTSUS, which provides for cigarette lighters and other lighters, whether or not mechanical or electrical, and parts thereof other than flints and wicks.

GRI 3 provides for the classification of goods when, by application of rule 2(b) or for any other reason, they are, prima facie, classifiable under two or more headings. GRI 3(b) provides that mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale shall be classified as if they consisted of the material or component which gives them their essential character.

The Harmonized Commodity Description and Coding System, Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. Although not legally binding, the Explanatory Notes are useful in interpreting the HTSUS, and Customs believes they should be consulted. See T.D. 89-80.

Concerning GRI 3(b), the Explanatory Notes state, in pertinent part, the following:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

The storage compartment and lighter are attached to each other and form an inseparable whole. Thus, they are clearly composite goods, and are classifiable in accordance with GRI 3(b) as to which component imparts the essential character. The lighter can perform a specific, multi-use function as a lighter for cigarettes, cigars, candles, etc. Its role, therefore, is more important than that of the storage compartment. Consequently, the lighter imparts the essential character and the merchandise is classifiable in Heading 9613, HTSUS. The appropriate subheading is 9613.20.0000, HTSUS, which provides at the subheading level for pocket lighters, gas fueled, refillable, dutiable at 9 percent ad valorem.

HOLDING:

The subject merchandise is drug paraphernalia, the importation of which is unlawful, under 21 U.S.C. § 863. If imported without the pipe, the merchandise is not drug paraphernalia, and its importation would not be unlawful pursuant to 21 U.S.C. § 863. Classification of the subject merchandise without the pipe is under subheading 9613.20.0000, HTSUS.

Sincerely,

Acting Chief
Entry Procedures and Carriers Branch


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