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.

From Medwakh.com

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).

Ruling of the Week 2015.6 Human Remains and the Walking Dead

Note, this has been updated to add a little more context for those among you who are not trade compliance professionals.

Lately, I have been on a slow binge of watching the Walking Dead. Like most TV adaptations of graphic novels and comics, I am finding it very entertaining. I'm only in Season 3, so no one tell me . . . well, anything. As a result, I have been seeing a lot of images of corpses, both animate and inanimate. That reminded me that there is a specific provision in the Harmonized Tariff Schedule of the United States ("HTSUS") for the importation of corpses.

The HTSUS is the statute (19 USC 1202) by which imported products are assigned rates of duty. It also sets out certain other regulatory requirements and exceptions. General Note 3(e), HTSUS, exempts from customs duties "corpses, together with their coffins and accompanying flowers."

When goods arrive at a port in the U.S., they are usually subject to an "entry." That is the process of legally entering the goods into the commerce of the United States and reporting that fact to Customsd and Border Protection. The Customs Regulations provide that "all merchandise" is subject to entry unless exempted and lists HTSUS General Note 3(e) as an exemption. That seems confirm that corpses are not subject to entry requirements and not subject to duty. Or maybe not.

What if the "merchandise" to be imported is human heads, heads with necks, torsos, legs, arms, etc. taken from body donors. That is the question answered by Customs and Border Protection in its private letter ruling HQ H235506 (Jan.14, 2013). As customs rulings go, this is awesome. I don't know how I missed it when it was issued.

The ruling starts with the ancient legal principal that there can be no commercial property interest in a dead body. Among other sources, Customs cited Chief Justice of the King's Bench, Sir Edward Coke (1552-1634) for this legal proposition. At the same time, we all have a legal right to a decent burial, which puts a duty on survivors to properly care for the body of the decedent. For this, Customs cites a book I desperately want: The Law of Cadavers by Percival Jackson. All of which must be weighed against the right of the not-yet-dead to donate their body to science under the Uniform Anatomical Gift Act.

Getting to the substance of the issue, Customs looked at prior rulings in which it determined that cadavers imported for medical analysis are "corpses" for purposes of General Note 3(e). Customs has long had the practice of exempting corpses from duty and entry.

But this case involves parts of corpses. Counsel for the importers made the hand waving argument that it would be distasteful for CBP "to begin quibbling about the relative portions of human remains that are imported before qualifying for the GN 3(e)" exemption. Based solely on longstanding practice, a couple rulings, and "the weight of history," Customs agreed. Given that the body parts will eventually be given a decent burial, Customs saw no reason to interfere with the disposition of the "merchandise."

I have a couple questions. First, is there a flipside to the distasteful task of deciding how much of a body should be treated as a corpse? Counsel for the importer seemed to be wondering how much can be removed from the deceased and still have it remain a corpse for purposes of the customs laws. Apparently, the answer is that an entire body can be removed leaving the head legally a "corpse." What about a sample taken from a living human? This ruling says an arm or leg taken from a cadaver is a "corpse" and exempt from classification and entry. What about an arm or leg taken from a living person? Is that extremity now a corpse if imported into the United States. How would Customs know whether the "donor" was living or dead? Is the legal distinction administrable?

My second question has to do with the looming zombie apocalypse depicted in the Walking Dead TV series and presumably in the graphic novel. What if the unlucky victim of viral zombie reanimation happens to be visiting the Windsor Ballet at the time of his or her demise? When the undead start shuffling north toward the tunnel to Detroit, will there be a problem when it arrives at Customs? Is the walker a "corpse?" If so, it will not need to be entered as merchandise, and can continue walking.

If it is a person, it will need to clear immigration checks, which will be hard for the inarticulate shuffler lacking a passport. Customs might have to make accommodations under the Americans with Disabilities Act. Also, would the passport still be valid? It seem the correct "birthday" would now be the date of reanimation. I will leave that to the immigration lawyers.

Assuming the walker is no longer a person, Customs should treat it like an animal. If it is a dead but still walking animal, the best guidance ruling I can find (with minimal research) is HQ 975664, in which dead animals are treated as zoological specimens in HTSUS item 9705.00.00 (it's duty free!). In this case, the dead animal is walking itself across the border, which raises questions of whether the walker is the "owner, purchaser, or consignee" of the merchandise (which is the walker). Since we know there can be no property interest in a dead body (or living person), the walker would need to be his or her own consignee to have the legal right to make entry of himself or herself. If it is alive but non-human, I suggest an HTSUS classification of 0106.11.00 as live primates, which is also duty free.

Finally, there are, of course, issues of admissibility. As Customs pointed out in the ruling that sparked this post, the importation of corpses is subject to regulation by the Centers for Disease Control. Given the plot of The Walking Dead, it seems pretty certain that the CDC would have something to say about this.

If anyone from Customs and Border Protection knows what would happen if an unaccompanied non-human primate showed up at the border crossing, please drop a comment below.

Also, if any readers have rulings to nominate for Ruling of the Week treatment, please note them in a comment. I am particularly interested in bizarre products, crazy food items, and restricted merchandise. I am aware of the numerous NSFW rulings on personal massage devices, so no need to reference those. I try and keep this a family and office friendly site.