Sunday, January 29, 2017

Ruling of the Week 2017.4: Midwakh from UAE

This is a good week to be talking about trade with the Middle East. I am talking about trade in goods, which is what I do. I don't talk about immigration issues. That's too bad because yesterday was a doozy of day in the history of immigration law in America. Congratulations to the ACLU and everyone who helped secure a stay of the President's order barring entry for people from seven majority-Muslim countries (including those already holding green cards and visas). That was a tremendous effort at ensuring the rule of law, not to mention humane treatment for people who had the bad luck of being on a plane at the moment he signed the order. There were many examples of lawyers showing up at airports around the country to help stranded travelers. Some of them were affiliated with the International Refugee Assistance Project. Both the ACLU and IRAP deserve your support.

That said, I will focus on something entirely superficial: the customs treatment of mewakh pipes.

These are small wooden pipes that, in N257162 (Oct. 3, 2014), Customs and Border Protection described as being "of Arabian origin." That puts me in mind to watch Lawrence of Arabia and makes me wonder why they were not described as originating in the United Arab Emirates, which is what the facts state.

These are pipes traditionally used in the region to smoke dokha, which is a blend of tobacco, other leaves, bark and herbs. Dokha can also be flavored with fruit.

According to Customs and Border Protection, the pipes are classifiable in 9614.00.2500, not surprisingly, as "smoking pipes . . . of wood . . . ."

In the ruling, CBP made a couple useful observations. First, dokha of Iranian origin is probably subject to sanctions and not admissible into the United States. That seems to have been a complete aside as there is no indication that dokha was the subject of the ruling. But, I am not being sarcastic, that extra bit of information may have been useful to the ruling requester.

Second, CBP noted that the importer might want to look into whether the medwakh constitute drug paraphernalia, which would also not be admissible. Under 21 U.S.C. § 863, it is unlawful to sell or transport drug paraphernalia. But, under subsection 21 U.S.C. § 863(f)(2), the prohibition does 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.” That standard has come to mean that Customs looks to whether the imported item is primarily intended for use with illegal drugs, including a review of the labeling, instructions, marketing, display, etc. Under that standard, a mirror might be treated as drug paraphernalia if it is etched to depict razor blades, tiny spoons, and rolled dollar bills. [Note to my parents: The only reason I thought of those particular items is because I have seen Scar Face one too many times. Really.] For more on this, see HQ H150766 (Mar. 8, 2011)(holding that hookas area not drug paraphernalia).

1 comment:

Larry said...

An anonymous reader asked the really good question of whether these items are also subject to Lacey Act reporting. Based on this APHIS enforcement document, it appears not. At least not yet. You are on your own to check.