CLA-2 OT:RR:CTF:TCM H054812 IDL
Mr. Peter D. Alberdi
A.J. Arango, Inc.
1516 East 8th Avenue
Tampa, Florida 33605
Re: Paintballs from Italy; Revocation of NY B85784
Dear Mr. Alberdi:
This letter concerns New York Ruling Letter (NY) B85784, dated June 4, 1997, issued to you, on behalf of your client, R.P. Scherer North America, by the National Commodity Specialist Division, U.S. Customs Service (now Customs and Border Protection (CBP)). The decision in NY B85784 involves the classification of "paintballs from Italy" under the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed NY B85784 and have found it to be incorrect.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. § 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification was published in the Customs Bulletin, Vol. 43, No. 18, on May 1, 2009. One comment was received in response to the notice.
FACTS:
In NY B85784, the paintballs were described as follows:
Paintballs are soft gelatin capsules which are a mixture of vegetable oil and food coloring. These paintballs are used in the game of paintball.... [P]aintball is a game in which opposing teams attempt to capture the other's flag station. When a player gets tagged (hit by a paintball) he/she is out of the game. The paintballs are an essential part of the game of paintball.
The game of paintball is described in an article written by the chief editor of a popular paintball magazine, "Recon," as posted on the Web site (http://www.paintball.org) of the Paintball Sports Trade Association, thus:
Paintball is a game in which players use compressed-gas-powered guns (paintball markers) to shoot each other with small balls of encapsulated gelatin. When these paintballs break, they leave a brightly-colored mark, about the size of a quarter, signifying that the player is eliminated from the game.
* * *
Games are played in the woods...or on small fields containing brightly colored inflatable bunkers....
(Allcot, Dawn, Ed., Recon Magazine).
In NY B85784, the U.S. Customs Service classified the subject paintballs in heading 9504, HTSUS, as "articles for arcade, table or parlor games." CBP now takes the position that the subject paintballs are properly classified in heading 9306, HTSUS, as "projectiles."
ISSUE:
Whether the subject paintballs are properly classified in heading 9306, HTSUS, as "projectiles," or in heading 9504, HTSUS, as "articles for arcade, table or parlor games"?
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, HTSUS, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied in order. GRI 3 provides for goods that are, prima facie, classifiable under two or more headings. GRI 6 provides that "for legal purposes", classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. GRI 6 thus incorporates GRIs 1 through 5 in classifying goods at the subheading level.
The 2009 HTSUS provisions under consideration are as follows:
9306 Bombs, grenades, torpedoes, mines, missiles and similar munitions of war and parts thereof; cartridges and other ammunition and projectiles and parts thereof, including shot and cartridge wads:
* * *
9306.30 Other cartridges and parts thereof:
9306.30.41 Cartridges and empty cartridge shells. . . .
* * *
9306.90.00 Other. . . .
* * *
9504 Articles for arcade, table or parlor games, including pinball machines, bagatelle, billiards and special tables for casino games; automatic bowling alley equipment; parts and accessories thereof:
* * *
9504.90 Other:
9504.90.40 Game machines, other than those operated by coins,
banknotes (paper currency), discs or similar articles; parts and accessories thereof. . . .
Note 1(s) to chapter 95, HTSUS, provides the following:
1. This chapter does not cover:
* * *
(s) Arms or other articles of chapter 93;
* * *
The game of paintball is "played in the woods...or on small fields," as described above, not in an arcade, parlor, or on a table. As such, the subject articles are not "articles for arcade, table or parlor games," as provided in heading 9504, HTSUS. Therefore, we find that the subject articles do not meet the terms of heading 9504, HTSUS. Furthermore, pursuant to Note 1(s) to chapter 95, HTSUS, insofar as the subject articles are classifiable in a heading of chapter 93, HTSUS, they cannot be classified in a heading of chapter 95.
Heading 9306 of chapter 93, HTSUS, describes cartridges and projectiles. Merriam-Webster's Third New International Dictionary, Unabridged (1965), defines "cartridge", in pertinent part, as follows:
1a: a tube of metal, paper, or a combination of both containing a complete charge for a firearm and in modern ammunition usu. containing a cap or other initiating device.... b: a case containing an explosive charge for blasting.... [Emphasis added]
Similarly, the American Heritage Dictionary of the English Language:
Fourth Ed. (2000), defines "cartridge", in pertinent part, as follows:
1a: a cylindrical, usually metal casing containing the primer and charge of ammunition for firearms." [Emphasis added]
Further, "projectile" is defined in Merriam-Webster's, in pertinent part, as
follows:
1: a body projected by external force and continuing in motion by its own inertia....
The subject articles are not cartridges, as they contain no casing, primer, or charge. Although no specific information is available in the instant case regarding the precise mechanism used to propel the subject paintballs, paintballs are ordinarily propelled using "compressed-gas-powered guns," as discussed above. Upon firing, paintballs continue in motion by their own inertia. As such, the articles meet the definition of "projectiles." Therefore, we find that the subject articles are classified in heading 9306, HTSUS, and specifically, in subheading 9306.90.00, HTSUS.
We received one comment opposing the revocation of NY B85784. The commenter argued that the scope of heading 9306, HTSUS, is limited to projectiles that are used as weapons that cause severe damage to a target. We disagree. The paintball capsules meet the provisions of heading 9306, HTSUS, as projectiles, and we find no such limitation in scope. Therefore, the subject articles are classified in heading 9306, HTSUS, and specifically, in subheading 9306.90.00, HTSUS.
HOLDING:
By application of GRI 1, the paintballs described above are classified in
heading 9306, HTSUS, and are specifically provided for under subheading 9306.90.00, HTSUS, as: "[P]rojectiles...: Other." The 2009 column one, general rate of duty is "free."
Duty rates are provided for your convenience 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 http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY B85784, dated June 4, 1997, is revoked. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
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