21 U.S.C. § 863 — Drug paraphernalia

Page 872 TITLE 21—FOOD AND DRUGS § 863 1 So in original. Probably should be ‘‘marihuana,’’. use of controlled substances nor from sanc- tioning welfare recipients who test positive for use of controlled substances. (Pub. L. 104–193, title IX, § 902, Aug. 22, 1996, 110 Stat. 2347.) Editorial Notes CODIFICATION Section was enacted as part of the Personal Responsi- bility and Work Opportunity Reconciliation Act of 1996, and not as part of the Controlled Substances Act which comprises this subchapter. § 863. Drug paraphernalia (a) In general It is unlawful for any person— (1) to sell or offer for sale drug para- phernalia; (2) to use the mails or any other facility of interstate commerce to transport drug para- phernalia; or (3) to import or export drug paraphernalia. (b) Penalties Anyone convicted of an offense under sub- section (a) of this section shall be imprisoned for not more than three years and fined under title 18. (c) Seizure and forfeiture Any drug paraphernalia involved in any viola- tion of subsection (a) of this section shall be subject to seizure and forfeiture upon the con- viction of a person for such violation. Any such paraphernalia shall be delivered to the Adminis- trator of General Services, General Services Ad- ministration, who may order such paraphernalia destroyed or may authorize its use for law en- forcement or educational purposes by Federal, State, or local authorities. (d) ‘‘Drug paraphernalia’’ defined The term ‘‘drug paraphernalia’’ means any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, in- jecting, ingesting, inhaling, or otherwise intro- ducing into the human body a controlled sub- stance, possession of which is unlawful under this subchapter. It includes items primarily in- tended or designed for use in ingesting, inhaling, or otherwise introducing marijuana,1 cocaine, hashish, hashish oil, PCP, methamphetamine, or amphetamines into the human body, such as— (1) metal, wooden, acrylic, glass, stone, plas- tic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punc- tured metal bowls; (2) water pipes; (3) carburetion tubes and devices; (4) smoking and carburetion masks; (5) roach clips: meaning objects used to hold burning material, such as a marihuana ciga- rette, that has become too small or too short to be held in the hand; (6) miniature spoons with level capacities of one-tenth cubic centimeter or less; (7) chamber pipes; (8) carburetor pipes; (9) electric pipes; (10) air-driven pipes; (11) chillums; (12) bongs; (13) ice pipes or chillers; (14) wired cigarette papers; or (15) cocaine freebase kits. (e) Matters considered in determination of what constitutes drug paraphernalia In determining whether an item constitutes drug paraphernalia, in addition to all other logi- cally relevant factors, the following may be con- sidered: (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 dis- played 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 li- censed distributor or dealer of tobacco prod- ucts; (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. (f) Exemptions This section shall not apply to— (1) any person authorized by local, State, or Federal law to manufacture, possess, or dis- tribute such items; or (2) 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. (Pub. L. 91–513, title II, § 422, as added and amended Pub. L. 101–647, title XXIV, § 2401(a)–(c), Nov. 29, 1990, 104 Stat. 4858, 4859; Pub. L. 106–310, div. B, title XXXVI, § 3614, Oct. 17, 2000, 114 Stat. 1230.) Editorial Notes CODIFICATION The text of section 857(b) to (f) of this title, which was transferred to subsecs. (b) to (f) of this section by Pub. L. 101–647, § 2401(b), was based on Pub. L. 99–570, title I, § 1822(b)–(f), Oct. 27, 1986, 100 Stat. 3207–51; Pub. L. 100–690, title VI, § 6485, Nov. 18, 1988, 102 Stat. 4384. AMENDMENTS 2000—Subsec. (d). Pub. L. 106–310 inserted ‘‘meth- amphetamine,’’ after ‘‘PCP,’’ in introductory provi- sions. 1990—Subsec. (b). Pub. L. 101–647, § 2401(c)(1), sub- stituted ‘‘fined under title 18’’ for ‘‘fined not more than $100,000’’. Pub. L. 101–647, § 2401(b), redesignated subsec. (b) of section 857 of this title as subsec. (b) of this section. See Codification note above. Subsecs. (c) to (e). Pub. L. 101–647, § 2401(b), redesig- nated subsecs. (c) to (e) of section 857 of this title as Page 873 TITLE 21—FOOD AND DRUGS § 865 1 So in original. A second closing parenthesis probably should precede the comma. subsecs. (c) to (e) of this section. See Codification note above. Subsec. (f). Pub. L. 101–647, § 2401(c)(2), made technical amendment to reference to ‘‘This section’’ to correct reference to corresponding provision of original act. Pub. L. 101–647, § 2401(b), redesignated subsec. (f) of section 857 of this title as subsec. (f) of this section. See Codification note above. § 864. Anhydrous ammonia (a) It is unlawful for any person— (1) to steal anhydrous ammonia, or (2) to transport stolen anhydrous ammonia across State lines, knowing, intending, or having reasonable cause to believe that such anhydrous ammonia will be used to manufacture a controlled substance in violation of this part. (b) Any person who violates subsection (a) shall be imprisoned or fined, or both, in accord- ance with section 843(d) of this title as if such violation were a violation of a provision of sec- tion 843 of this title. (Pub. L. 91–513, title II, § 423, as added Pub. L. 106–310, div. B, title XXXVI, § 3653(a), Oct. 17, 2000, 114 Stat. 1240.) § 864a. Grants to reduce production of methamphetamines from anhydrous ammo- nia (a) Definitions In this section: (1) Eligible entity The term ‘‘eligible entity’’ means— (A) a producer of agricultural commod- ities; (B) a cooperative association, a majority of the members of which produce or process agricultural commodities; or (C) a person in the trade or business of— (i) selling an agricultural product (in- cluding an agricultural chemical) at retail, predominantly to farmers and ranchers; or (ii) aerial and ground application of an agricultural chemical. (2) Nurse tank The term ‘‘nurse tank’’ shall be considered to be a cargo tank (within the meaning of sec- tion 173.315(m) of title 49, Code of Federal Reg- ulations, as in effect as of the date of the en- actment of this Act). (b) Grant authority The Secretary may make a grant to an eligi- ble entity to enable the eligible entity to obtain and add to an anhydrous ammonia fertilizer nurse tank a physical lock or a substance to re- duce the amount of methamphetamine that can be produced from any anhydrous ammonia re- moved from the nurse tank. (c) Grant amount The amount of a grant made under this sec- tion to an eligible entity shall be the product obtained by multiplying— (1) an amount not less than $40 and not more than $60, as determined by the Secretary; and (2) the number of fertilizer nurse tanks of the eligible entity. (d) Authorization of appropriations There is authorized to be appropriated to the Secretary to make grants under this section $15,000,000 for the period of fiscal years 2008 through 2012. (Pub. L. 110–234, title XIV, § 14203, May 22, 2008, 122 Stat. 1458; Pub. L. 110–246, § 4(a), title XIV, § 14203, June 18, 2008, 122 Stat. 1664, 2220.) Editorial Notes REFERENCES IN TEXT The date of the enactment of this Act, referred to in subsec. (a)(2), is the date of enactment of Pub. L. 110–246, which was approved June 18, 2008. CODIFICATION Pub. L. 110–234 and Pub. L. 110–246 enacted identical sections. Pub. L. 110–234 was repealed by section 4(a) of Pub. L. 110–246. Section was enacted as part of the Food, Conserva- tion, and Energy Act of 2008, and not as part of the Con- trolled Substances Act which comprises this sub- chapter. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Enactment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as a note under section 8701 of Title 7, Agriculture. DEFINITION OF ‘‘SECRETARY’’ ‘‘Secretary’’ as meaning the Secretary of Agri- culture, see section 8701 of Title 7, Agriculture. § 865. Smuggling methamphetamine or meth- amphetamine precursor chemicals into the United States while using facilitated entry programs (a) Enhanced prison sentence The sentence of imprisonment imposed on a person convicted of an offense under the Con- trolled Substances Act (21 U.S.C. 801 et seq.) or the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), involving meth- amphetamine or any listed chemical that is de- fined in section 102(33) of the Controlled Sub- stances Act (21 U.S.C. 802(33),1 shall, if the of- fense is committed under the circumstance de- scribed in subsection (b), be increased by a con- secutive term of imprisonment of not more than 15 years. (b) Circumstances For purposes of subsection (a), the cir- cumstance described in this subsection is that the offense described in subsection (a) was com- mitted by a person who— (1) was enrolled in, or who was acting on be- half of any person or entity enrolled in, any dedicated commuter lane, alternative or accel- erated inspection system, or other facilitated entry program administered or approved by the Federal Government for use in entering the United States; and (2) committed the offense while entering the United States, using such lane, system, or pro- gram.