CLA-2 OT:RR:CTF:TCM H080595 DAC
Area Port Director
Service Port of Buffalo
Attn: Supervisory Import Specialist Mruk
726 Exchange Street, Suite 400
Buffalo, NY 14210
RE: Internal Advice: classification of Kongsberg Remote Weapons System (RWS)
Dear Area Port Director:
This is in response to your request for Internal Advice, dated September 30, 2009, regarding the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a military weapons system, identified as the Kongsberg Remote Weapons System. The importer of the subject products, Kongsberg Defense Corp., asserts through counsel that the merchandise is classifiable under subheading 9305.91.3030, HTSUS, as “Parts and accessories of articles of headings of 9301 to 9304: …Other: …Of military weapons of heading 9301: …Other: …Other”.
FACTS:
The subject merchandise was previously imported by Kongsberg Defense Corp. of Johnstown, PA (Kongsberg PA) under Temporary Import Bonds (TIB’s). As Kongsberg PA may enter future shipments in a manner that will require classification under the HTSUS, an Internal Advice determination is solicited from CBP Headquarters pursuant to 19 CFR § 177.11. According to Kongsberg PA, the Kongsberg Remote Weapon System (RWS) is used exclusively on military vehicles and provides a variety of functions in connection with the operation of a machine gun, such as target identification, target tracking, fire control and range finding. The RWS is an integrated system that enables the remote operation of a variety of crew-served weapons from inside an armored vehicle, so that the operator is not exposed to hostile fire.
Kongsberg PA asserts the RWS, (also referred to as a Remote Weapon Station in Kongsberg materials), is a system comprised of the following standard equipment: 1) a “CCD Day Camera” that provides real-time video to the operator for target identification, tracking and overall situational awareness; 2) an “Uncooled Infrared Imager” that provides night vision capabilities for the system and enables the use of the system in inclement environmental conditions; 3) a “Laser Range Finder” that is a military eye-safe, “Class 1 laser range finder” used to calculate distance for targeting functions; 4) a “Control Group” (consisting of a “Control Grip” and a “Fire Control Unit” (“FCU”)) that is made up of units that include a control lever-handle (a “joystick”) and a computer (consisting of a “main processing unit” and a “flat panel touch screen display”) that enables the operator to control the orientation of the system, and control remote operation of the system, and computes and transmits solutions to the “retical sight” on the operator’s display unit; and 5) a “Cocking Actuator and Firing Solenoid” that is used for cocking the weapon and mechanical operation of the weapon.
ISSUE:
Whether the Kongsberg Remote Weapons System (RWS) is classifiable under subheading 9305.91.3030, as “Parts and accessories of articles of headings of 9301 to 9304: …Other: …Of military weapons of heading 9301: …Other: …Other”?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). 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 GRI’s 2 through 6 may then be applied in order.
The 2010 HTSUS provision under consideration in this case reads as follows:
9305 Parts and accessories of articles of headings 9301 to 9304:
9305.91 Other:
Of military weapons of heading 9301:
9305.91.30 Other
9305.91.3030 Other
In understanding the language of the HTSUS, the Explanatory Notes (EN’s) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be used. The EN’s, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89 80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN’s to heading 9305 provide in pertinent part:
93.05 Parts and accessories of articles of headings 93.01 to 93.04.
The parts and accessories of this heading include:
(1) Parts for military weapons, e.g., liners (tubes for barrels), recoil mechanisms and breeches for guns of all kinds; turrets, carriages, tripods and other special mountings for guns, machine guns, sub machine guns, etc., whether or not with aiming and loading mechanisms.
Heading 9305, HTSUS, specifically provides for "[P]arts and accessories of articles of headings 9301 to 9304.” Heading 9301, HTSUS, provides for “[M]ilitary weapons, other than revolvers, pistols and the arms of heading 9307.” Heading 9307, HTSUS, provides for “[S]words, cutlasses, bayonets, lances and similar arms and parts thereof and scabbards and sheaths therefore.” Heading 9301, HTSUS, provides for firearms, such as the kind mounted to the RWS. The determinative issue, therefore, is whether the RWS is appropriately classifiable as a “part” or “accessory” thereof.
The term “parts and accessories” is not defined in the tariff; however, in a line of judicial cases the courts have defined those terms and CBP has applied those definitions. See e.g. HQ 966441 (June 12, 2003), citing Bauerhin Technologies Limited v. United States, 19 CIT 1441, 914 F.Supp. 554 (1995), aff’d 110 F.3d 774 (Fed. Cir. 1997) and United States v. Antonio Pompeo, 43 C.C.P.A. 9, C.D. 1669 (1955), in which CBP stated:
Customs generally will consider an article to be a part if: it is combined with other articles to be used; or it is an integral, constituent or component part, without which the article to which it is joined could not function; or it aids in the safe and efficient operation of the main article; or it is identifiable by shape or other characteristics as an article solely or principally used as a part. In contrast, Customs generally will consider an article to be an accessory if: it facilitates use or handling; or it widens the range of uses of the main article; or it improves the operation of the main article; or it is not needed to enable the goods with which it is used to fulfill its intended function; or it is identifiable as being intended solely or principally for use with a specific article. (emphasis added.)
Based on the submitted documents, images and brochures, as well as product information available on the internet, CBP agrees with the requester's assertion that the Kongsberg RWS is marketed and designed to function exclusively with military weapons systems. The RWS aids in the safe and efficient operation of the mounted firearm and, as indicated by the fact that the turret is the main structural component of this system, the RWS is identifiable by its shape and design as solely used as part of a mounted firearm. It is further noted that the RWS can only be used with mounted firearms and cannot be used with any other article.
Based on the foregoing, the RWS fits the courts’ accepted definition of “part” or “accessory” and the product is properly classifiable within heading 9305, HTSUS, as a part or accessory of a military weapon of heading 9301.
HOLDING:
By application of GRI 1, the subject merchandise, identified as the Kongsberg Remote Weapons System (RWS) is classifiable under subheading 9305.91.3030, HTSUS, which provides for “Parts and accessories of articles of headings of 9301 to 9304: …Other: …Of military weapons of heading 9301: …Other: …Other”.
You are to mail this decision to the Internal Advice requester no later than sixty days from the date of the decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public, on the CBP website located 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