CLA-2 OT:RR:CTF:TCM H022179 RM
Mr. Fahim Khalid
A & Y Tobacco Inc.
2637 Annapolis Road
Hanover, MD 21076
RE: Drug Paraphernalia; Classification of Hookahs
Dear Mr. Khalid:
This is in response to your letter dated January 10, 2008, to United States Customs and Border Protection (CBP), in which you requested a binding ruling pertaining to classification of hookahs under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
You propose to import hookahs, i.e., water pipes of a kind traditionally used to smoke flavored tobacco, called shisha. The hookah has a bowl at its top, in which tobacco is heated by charcoal. A hose (or several) and mouthpiece attached to the bowl are used to draw smoke through a tube, into a water-filled chamber, and up through the water to the user.
Along with your request, you submitted numerous pages of product literature depicting smoking/tobacco products (e.g., assorted shisha) and different hookah models and accessories (e.g., charcoal holders, charcoal tongs, hose port adapters, etc.). You also provided empty boxes of flavored shisha bearing pictures of hookahs, an “owner’s manual” with instructions on how to assemble and use a hookah, and a list of “hookah bars” operating within the United States. Further, you submitted a one page document, titled “A Brief History of Hookah,” describing shisha and discussing the Middle Eastern origin and evolution of hookah smoking as a social activity. Finally, you submitted pictures of the interior of your business establishment, A &Y Tobacco Inc., along with State of Maryland documents that appear to verify that A & Y Tobacco Inc. is a licensed retailer of tobacco products.
ISSUES:
Are the subject hookahs drug paraphernalia, the importation of which is unlawful, under 21 U.S.C. § 863?
What is the proper tariff classification of the hookahs under the HTSUS?
LAW AND ANALYSIS:
We first address whether the hookahs are “drug paraphernalia” and thus, prohibited from entry into the United States. 21 U.S.C. §863(a)(3) provides that the importation or exportation of drug paraphernalia is unlawful. The term "drug paraphernalia," pursuant to section 863(d) means “any equipment, product, or material of any kind which is primarily intended or designed for use in connection with controlled substances.” Included in the list of paraphernalia are water pipes. The statute provides guidance with regard to factors to be considered in determining whether an article is drug paraphernalia. Pursuant to section 863(e), 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 depicts 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.
Section 863(f)(2), provides an exemption for 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."
Previously, in Headquarters’ Ruling (HQ) 114939, dated February 14, 2000, CBP held that hookahs were drug paraphernalia and could not be imported. However, in that ruling, we noted that the importer did not submit any documentary evidence to establish or tend to establish that the articles were primarily intended for use with tobacco products.
In this case, you submitted evidence to support the legitimacy of the proposed importations, relating to the above-mentioned criteria. For criteria 1 and 2, you provided an “owner’s manual” for hookah assembly and use, as well as a one page document titled “Brief History of Hookah,” which describes hookah smoking as a popular social activity of Middle Eastern origin. Regarding criterion 3, you submitted a list of “hookah bars” in the United States. However, no information was submitted concerning the independent advertisement of the hookahs. Regarding criterion 4, you submitted photos of hookahs on display at your shop, as well as photos and price lists of hookahs from the websites of one domestic and one overseas company. Regarding criterion 5, you submitted photos of your business establishment as well as copies of business licenses which appear to verify that A&Y Tobacco Inc. is a licensed dealer of tobacco products. For criterion 7, you provided empty boxes of flavored shisha to show what the hookahs are used for, as well as a list of hookah bars in the United States, and a one page document titled “Brief History of Hookah,” to document the legitimate uses and growing popularity of hookahs. No evidence was submitted regarding criteria 6 or 8.
This case is similar to HQ 116060, dated November 7, 2003, concerning the admissibility of hookahs. In that case, along with a prospective ruling request, the importer submitted numerous articles reporting on the rising popularity of hookah bars in the U.S., dictionary and encyclopedia definitions of the terms “nargileh” and “hookah,” and photos depicting the traditional use of hookahs with tobacco products. In addition, the importer submitted two New York binding rulings on flavored tobacco. See NY 814794, dated September 28, 1995 and NY C86794, dated April 23, 1998. CBP found the supporting documentation to be “sufficient evidence ... probative of the claim that the nargilehs/hookahs … are intended to be used with tobacco; they are not drug paraphernalia.”
Likewise, weighing the 8 criteria described above, as no one criterion is determinative, we find that sufficient evidence has been submitted to support the claim that the hookahs that will be imported are intended for use with tobacco and are not drug paraphernalia, as defined by 21 U.S.C. § 863.
Having established that the articles are admissible, we now address their tariff classification. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
GRI 6 provides that the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to GRIs 1 through 5, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires
The applicable HTSUS provisions are as follows:
9614 Smoking pipes (including pipe bowls) and cigar or cigarette holders, and parts thereof:
Pipes and pipe bowls:
9614.00.26 Pipes and bowls wholly of clay and pipes with bowls wholly of clay …
9614.00.28 Other …
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Heading 9614, HTSUS, provides for “smoking pipes (including pipe bowls) and cigar and cigarette holders, and parts thereof.” The ENs to heading 9614, HTSUS, indicate that the heading covers “[s]moking pipes of all kinds (including calumets, chibouks or Turkish pipes, hookahs, etc.).”
Recently, in HQ 967666, dated June 7, 2005, we considered the tariff classification of the Revolution™ pipe and the Evolution™ pipe, tobacco smoking pipes with filters and wooden bowls. There, applying GRI 1, we classified the pipes in subheading 9614.20.15, HTSUS, as “[s]moking pipes (including pipe bowls) and cigar and cigarette holders, and parts thereof: [p]ipes and pipe bowls: [o]f wood or root: [o]ther.” CBP has also classified hookahs under heading 9614, HTSUS. See NY M86831, dated October 11, 2006 and NYR04775, dated September 7, 2006.
We find the subject hookahs to be classifiable as “smoking pipes” under heading 9614, HTSUS. From the information submitted, we do not know what the bowls in the hookahs are made of. If the bowls are made wholly of clay, the hookahs are classifiable in subheading 9614.00.26, HTSUS. Otherwise, heading 9614.00.28, HTSUS, applies.
HOLDING:
The hookahs are not drug paraphernalia under 21 U.S.C. § 863, and are not prohibited from importation.
By application of GRI 1, the hookahs are classifiable under subheading 9614.00.28, HTSUS, which provides for: “[s]moking pipes (including pipe bowls) and cigar or cigarette holders, and parts thereof: [p]ipes and pipe bowls: [o]ther.” The general, column one rate of duty is 0.3 cents each plus 3.2 percent ad valorem.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts/.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch