CLA-2 OT:RR:CTF:TCM H201118 ALS
Port Director
U.S. Customs and Border Protection
301 E. Ocean Boulevard, Suite 1400 Long Beach, California 90802
Attn.: Paul Sumbi, Import Specialist
RE: Application for Further Review of Protest # 2704-11-102333; Telescopic Sights (Scopes) for Rifles; Harmonized Tariff Schedule of the United States (HTSUS) subheading 9013.10.10
Dear Port Director:
This is in response to your memorandum forwarding the Application for Further Review (AFR) and Protest # 2704-11-102333 to this office for our review. The protest was timely filed by Givens & Johnston, PLLC, on behalf of their client, Xisico USA, Inc. We have also considered the supplemental information that the Protestant provided in an email dated July 24, 2013. Our decision is set forth below.
FACTS:
The articles at issue are telescopic sights, also referred to as scopes, which in this case were entered with air rifles. The model numbers for the scopes are listed on the invoice as 4*32AO and 3-9*40AO. Your office issued a Notice of Action, dated March 22, 2011, to the protestant to explain that scopes entered on December 10, 2010 were reclassified from HTSUS subheading 9013.10.3000 to HTSUS subheading 9013.10.1000. The entry was liquidated on April 15, 2011. The protestant had claimed a classification under HTSUS subheading 9304.00.20 as rifles.
ISSUE:
What is the tariff classification of the telescopic sights?
LAW AND ANALYSIS:
Initially, we note that the Protest was timely filed on October 12, 2011, which is within 180 days of the date of the liquidation, April 15, 2011. See 19 U.S.C. § 1514(c)(3). Additionally, CBP’s classification of the merchandise is a protestable matter under 19 U.S.C. § 1514(a)(2). Further Review of Protest No. 2704-11-102333 is properly accorded to the Protestant pursuant to 19 CFR 174.24(a).
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation (“ARI”). GRI 1 provides that the classification of goods 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, and if the headings and legal notes do not otherwise require, GRIs 2 through 6 may be applied in order.
The HTSUS provisions consideration are as follows: 9013 Liquid crystal devices not constituting articles provided for more specifically in other headings; lasers,other
than laser diodes; other optical appliances and instruments, not specified or included elsewhere in this
chapter; parts and accessories thereof:
9013.10 Telescopic sights for fitting to arms; periscopes;
telescopes designed to form parts of machines,
appliances, instruments or apparatus of this chapter
or section XVI:
Telescopic sights for rifles:
9013.10.10 Not designed for use with infrared light.. . . . . . . .
* * *
9013.10.30 Other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
* * *
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:
9304.00.20 Rifles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Note 1(d) to HTSUS Chapter 93 provides that Chapter 93 does not cover “[t]elescopic sights or other optical devices suitable for use with arms, unless mounted on a firearm or entered with the firearm on which they are designed to be mounted (chapter 90);…”
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither 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).
The protestant contends that Note 1(d) is in contrast with the ENs of HTSUS heading 9013, which provides in relevant part that “[t]elescopic sights for weapons, refracting or reflecting, presented separately, optical devices suitable for use with arms and mounted thereon or presented with the firearms on which they are designed to be mounted, are classified with the arm.” The protestant emphasizes that “presented separately” should mean that the EN excludes telescopic sights presented together with the firearm. The protestant further emphasizes that Note 1(d) excludes telescopic sights suitable for use with arms “unless” the sights are mounted on a firearm or entered with the firearm on which they are designed to be mounted. The protestant contends that the ENs of heading 9013 excludes the scopes from classification under heading 9013, and therefore the scopes are classifiable under subheading 9304.00.20.
Upon further consideration, your office notes in particular that the definition for “entered for consumption” “means that an entry summary for consumption has been filed with Customs in proper form, with estimated duties attached.” See 19 CFR 141.0a(f). Your office further notes that the scopes were imported in the same shipping container, listed on the same invoice, and released from CBP custody at the same time as the arms the protestant claims that they were designed to be used with. As a result, your office concludes that the subject scopes are “entered with the arms that they are designed to be used with” within the meaning of subheading 9304.00.20. We agree.
Your office also considered whether or not the scopes are designed to be mounted on the arms they were entered with. The protestant claims that the some of the arms entered with the subject scopes, specifically air guns, are in fact designed to be used with such. To support its claim, the protestant cites to CBP Ruling NY M81332 (March 20, 2006). In NY M81332, CBP ruled that telescopic sights that were entered with air rifles were to be classified under subheading 9304.00.2000. You are correct, however, in distinguishing that case from the present case in noting that M81332 involved telescopic sights that were mounted onto the air rifles, leaving no question as to whether those telescopic sights were designed to be mounted on those air rifles.
In the present case, while the subject scopes were entered with the air guns that the protestant claims they are designed to be mounted on, the scopes were not mounted onto those air guns upon entry. The protestant did not provide samples of the subject merchandise, but directed us to a customer’s website that markets the air guns in question, the Ruger® Air Hawk and the Ruger® Blackhawk® as evidence of the scopes being designed for use with these particular arms. Each corresponding webpage show pictures of the air rifle with a scope attached. There is no indication, however, of the particular model number of the scope attached to each air gun, and the picture does not clearly indicate what particular scope is mounted to the air gun. The protestant acknowledges that its own website does not refer to these air guns.
We therefore agree that no evidence has been presented that the subject scopes were designed to be mounted on any of the arms that they were entered with. Thus, HTSUS subheading 9304.00.20 is not applicable to the subject scopes pursuant to HTSUSA Chapter 93 Note 1(d), which excludes from classification under that chapter telescopic sights unless mounted on or entered with the firearm on which they designed to be mounted. The ENs of HTSUS heading 9013 only exclude telescopic sights from classification under that heading to the extent that the telescopic sights are “mounted on a firearm or entered with the firearm on which they are designed to be mounted.” With no evidence proving such, the subject scopes are properly classified under HTSUS subheading 9013.10.10, which specifically provides for telescopic sights for rifles not designed for use with infrared light.
Incidentally, we note that the protestant attempts to distinguish “air guns” from “firearms.” The protestant contends that scopes designed to be mounted to air guns are not suitable for mounting to firearms. We do not find any such possible distinction to be relevant in this case, given that no such distinction is made under either HTSUS subheading at issue here.
HOLDING:
The telescopic sights is classified under Harmonized Tariff Schedule of the United States Annotated subheading 9013.10.00 , which provides for “Liquid crystal devices not constituting articles provided for more specifically in other headings; lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in [Chapter 90]; parts and accessories thereof: telescopic sights for fitting to arms; periscopes; Telescopes designed to form parts of machines, appliances, instruments or apparatus of this chapter or section XVI: Telescopic sights for rifles: Not designed for use with infrared light....” The rate of duty according to the 2010 HTSUS, Revision 2 is 14.9% ad valorem.
Duty rates are provided for your convenience and 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.
The Protest should be DENIED. A copy of this ruling should be attached to the CBP Form 19 or equivalent document and provided to the protestant as part of the notice of action on the protest.
Sixty days from the date of the decision the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on 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