CLA-2 OT:RR:CTF:TCM H015360 HkP
9304.00.4000
Port Director
Port of Minneapolis
U.S. Customs and Border Protection
330 2nd Avenue South
Suite 560
Minneapolis, MN 55401
RE: AFR of Protest No. 3501-06-100053; toy rifles and pistols
Dear Port Director:
This is our decision regarding the Application for Further Review (“AFR”) of Protest No. 3501-06-100053, timely filed on behalf of Palco Marketing, Inc., concerning the classification of various toy guns under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
There are two types of merchandise at issue. The first is toy guns in the form of rifles - the 47389C3, 47383C3, 47380B6, F4BOYS, 47340B6, 2888 and M8 models (“automatic electric guns”, explained below), and the 62001B6 model (a “spring gun”, explained below). The second is toy guns in the form of pistols - the P198G and P698A models (spring guns). According to The Oxford Essential Dictionary of the U.S. Military, a “rifle” is “a gun, especially one fired from shoulder level, having a long spirally grooved barrel intended to make a bullet spin and thereby have greater accuracy over a long distance.” A “pistol” is “a small firearm designed to be held in one hand.” Collectively, the types of toy guns at issue are known in the industry as airsoft guns. Generally, airsoft guns are realistic, non-lethal, shooting replicas of actual firearms either for display or for the purposes of skirmishing in friendly competition that fire round plastic pellets, or “BBs”. Samples of the rifle-type guns only as well as schematic drawings and product literature were submitted for our review. The samples were packaged together with accessories and parts including a carrying sling, fully extendable stock, rechargeable batteries, BBs and auto loading magazines.
According to Protestant, automatic electric guns under consideration eject missiles by releasing compressed air. They include an electric motor, powered by a battery, which turns a series of three gears – the bevel, spur and sector gears. Once the trigger is pulled, an electrical circuit is completed which activates the motor. The motor turns the bevel gear, which turns the spur gear, which turns the sector gear. The sector gear pulls the piston back and compresses the spring. The sector gear also pulls back the tappet plate and air seal nozzle which allows one BB to feed from the magazine into the chamber. The tappet plate and air seal nozzle are then pulled into their original forward position by the tappet plate spring. When the tappet plate is in the forward position, it blocks the feed tube to prevent multiple BBs from entering the chamber and creates an airtight seal. Once the main spring is fully compressed, the sector gear releases the piston and the spring forces the piston forward into the gun’s cylinder. The forward motion of the piston causes the piston head to compress air in the cylinder. The compressed air is then forced through the cylinder head and through the air seal nozzle. This in turn forces the BB pellet that is in the chamber down the barrel of the gun.
Protestant states that the spring guns at issue operate similar to the automatic electric guns, except that the spring is compressed manually by the operator who uses an external charging handle.
The merchandise was entered on May 12, 2006, and classified in subheading 9304.00.4000, HTSUSA, which provides for: “Other arms (for example, spring, air or gas guns and pistols, truncheons), excluding those of heading 9307: Pistols, rifles and other guns which eject missiles by release of compressed air or gas, or by the release of a spring mechanism or rubber held under tension: Other.” This entry was later rate advanced by U.S. Customs and Border Protection (“CBP”) and liquidated under subheading 9304.00.6000, HTSUSA, which provides for: “Other arms (for example, spring, air or gas guns and pistols, truncheons), excluding those of heading 9307: Other.” The entry was liquidated on September 1, 2006. A protest was timely filed on September 26, 2006, in which the protestant alleged that the correct classification of the merchandise is subheading 9304.00.4000, HTSUSA.
ISSUE:
What is the correct classification of the toy guns?
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 90 days of liquidation of the first entry for entries made before December 18, 2004, and within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 3501-06-100053 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee with respect to the same or substantially similar merchandise.
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.
The HTSUS provisions under consideration are as follows:
9304.00 Other arms (for example, spring, air or gas guns and pistols, truncheons), excluding those of heading 9307:
Pistols, rifles and other guns which eject missiles by release of compressed air or gas, or by the release of a spring mechanism or rubber held under tension:
9304.00.2000 Rifles …..
9304.00.4000 Other …..
9304.00.6000 Other…..
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. 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.
EN 93.04 provides:
The heading covers arms other than firearms of headings 93.01 to 93.03 and arms of heading 93.07.
It includes the following:
* * *
(4) Air guns, rifles and pistols. These resemble normal rifles, pistols, etc., but they have provision for compressing a column of air which is released into the barrel of the weapon when the trigger is pulled, thus ejecting the ammunition.
* * *
(5) Similar weapons operated by the release of a heavy spring mechanism.
There is no dispute that the merchandise at issue is provided for in heading 9304, HTSUS, because they are arms (weapons) not provided for in heading 9307. In addition, in keeping with the explanation provided in EN 93.04, they are not firearms of heading 9301 to 9303, HTSUS.
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.
CBP previously found that the merchandise at issue was classified in subheading 9304.00.6000 because they did not meet the terms of the subheading superior to subheading 9304.00.2000 through 9304.00.4000, HTSUSA. Specifically, we found that the ejection of BBs from the guns was not caused by one of the listed methods, that is, by release of compressed air or gas, or by the release of a spring mechanism or rubber held under tension.
Protestant argues that the correct classification of the merchandise is in subheading 9304.00.4000, HTSUSA, because the guns function either through the release of compressed air or by the release of a spring mechanism.
After reviewing the samples provided as well as the schematic drawings and product literature discussed in the FACTS section above, we find that the merchandise at issue ejects missiles (BBs) by the release of compressed air or by the release of a spring mechanism. As such, they are provided for in subheadings 9304.00.2000 and 9304.00.4000, HTSUSA, with the applicable subheading depending on their configuration.
Based on the definition of the term “rifle” provided earlier in this decision, we find that the 47389C3, 47383C3, 47380B6, F4BOYS, 47340B6, 62001B6, 2888 and M8 models of toy guns are classified in subheading 9304.00.2000, HTSUSA, because they are replicas of types of rifles. CBP has previously classified an air gun replicating an AK-47 machine gun in subheading 9304.00.4000. See New York Ruling Letter (“NY”) C86214, dated April 9, 1998. See also NY G84861, dated December 7, 2000, and NY J87966, dated September 9, 2003. The other types of guns at issue, the P698A and P198G models, are classified in subheading 9304.00.4000, HTSUSA.
Finally, for the sake of completeness, we address the instances in which the guns are imported packaged together with accessories and parts. GRI 3(b) provides that when goods, which are, prima facie, classifiable under two or more headings, are put up in sets for retail sale, they shall be classified as if they consisted of the material or component which gives them their essential character. We have found that the guns are classified under heading 9304. We now conclude that the parts and accessories are classifiable in headings other than 9304, HTSUS, as that heading does not provide for parts or accessories. As such, we find that the components of the set are classified in different headings. In addition, the components are “put up together” to enable a user to operate the guns, and are offered for sale directly to users without repacking. Consequently, the items may not be classified separately under their respective classifications. Furthermore, CBP finds that the item which imparts the essential character of these sets is the guns. They are the dominant component by their role in relation to the use of the sets and are the reason why consumers would purchase the sets.
HOLDING:
By application of GRI 1, through the provision of GRI 6, the 47389C3, 47383C3, 47380B6, F4BOYS, 47340B6, 62001B6, 2888 and M8 models of toy guns are classified in subheading 9304.00.2000, HTSUSA, which provides for: “Other arms (for example, spring, air or gas guns and pistols, truncheons), excluding those of heading 9307: Pistols, riles and other guns which eject missiles by release of compressed air or gas, or by the release of a spring mechanism or rubber held under tension: Rifles.” The 2006 column one, general rate of duty is 3.9% ad valorem.
By application of GRI 1, through the provision of GRI 6, the P198G and P698A models of toy guns are classified in subheading 9304.00.4000, HTSUSA, which provides for: “Other arms (for example, spring, air or gas guns and pistols, truncheons), excluding those of heading 9307: Pistols, riles and other guns which eject missiles by release of compressed air or gas, or be the release of a spring mechanism or rubber held under tension: Other.” The 2006 column one, general rate of duty is Free.
You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.
No later than 60 days from the date of this letter, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP homepage on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division