CLA-2 OT:RR:CTF:TCM H242664 ALS
Mr. Marin Tanese
Canadian Technology Systems
75, Boulevard de Mortagne, Bureau 129
Boucherville, Quebec, Canada J4B 6Y4
RE: Request for Reconsideration of Customs and Border Protection (CBP) Ruling NY N103295 (May 14, 2010) regarding classification of the Lance Disrupter System®, a water jet disrupter system
Dear Mr. Tanese:
This letter is in response to your request for reconsideration of CBP Ruling NY N103295, as noted above, regarding the legal tariff classification of the Lance Disrupter System® (hereinafter referred to as “LDS”). You also request tariff classification of the accessories and ammunition for the LDS. Our decision is set forth below.
FACTS:
The Lance Disrupter component of the LDS is designed to discharge blank cartridges to propel water or special projectiles against an explosive charge in order to counteract such charge. It may be fitted with one or two barrels, with the two-barreled version referred to as the Twin Lance Disrupter System®. The LDS is not designed for use as a firearm, but could be converted to be used to discharge firearm ammunition. The primary users of the LDS are law enforcement agencies.
The ammunition for the LDS is a 12-gauge blank cartridge that projects water from the LDS is the same manner as firearm ammunition would be projected. It is a shotshell case that consists of a brass head fitted onto a plastic tube. In addition to water, the ammunition may also be used to project a granular water shot, a microshot (consisting of micro beads), dusty rounds (an ultra-hard ceramic), solid rounds (consisting of solid steel), metal fork-shaped projectiles, and metal blade-shaped projectiles.
The list of items imported with the LDS includes the following:
1) Wire Wheels: A spool of wires used to electronically initiate a breech.
2) Bore sighter: Fits onto the nozzle of the barrel to calibrate the LDS. Can also be used as a backup target sighter.
3) Initiator (Blaster Machine): Used to trigger a breach.
4) Initiator Line Check: Tests the wires in the wire wheel.
5) Spare Parts Kit: Tools for cleaning and repairing the LDS.
6) Firing Adapter System: A power source between the LDS and a robotic platform.
7) Backpack: A carry case for the LDS and accessories when broken down into parts.
You request reconsideration of NY N103295 because of “significant changes in regards to the way that [the LDS] is classified around the world.” Specifically, you note that the U.S. Bureau of Alcohol, Tobacco, and Firearms (BATF) issued your company a letter in which it determined that the LDS is “an industrial bomb-disposal tool” and “is not a ‘destructive device’ as defined in the National Firearms Act.” You also note that the Wassenaar Agreement, to which Canada and the United States are signatories, changed the classification of equipment such as the LDS to “duel use items” (as opposed to “military only” equipment).
The BATF letter states that “[p]rovided that the Lance Disrupter is designed, intended, and used solely in the capacity of destroying ‘IEDs’ as a bomb-disposal tool, it is not a ‘destructive device’ as defined in the NFA [National Firearms Act].” (Emphasis in original.) The BATF letter further states, however, that “we caution that if [the LDS] or a similar launcher were [sic] used as an offensive or defensive weapon—being loaded to expel nails, rocks, or flaming projectiles—or used in an inappropriate way (fired at a person, group, building, or car or generally used in an act of violence or destruction)—it would qualify as a ‘destructive device’ subject to NFA and GCA provisions.”
ISSUES:
Is the Lance Disrupter System properly classified under HTSUS heading 9303 as another firearm or similar device which operates by the firing of an explosive charge?
LAW AND ANALYSIS:
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation 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 LDS subject to NY N103295 consists of the Lance® Disrupter along with the additional items listed above, which are prima facie classifiable under more than one heading under the HTSUS inasmuch as the additional items are not “firearms”. Accordingly, in light of the fact that the items comprising the LDS are prima facie classifiable under two or more headings, are put up together in a manner suitable for retail sale, and are put up together to meet the specific need of conducting so-called “demining” operations, we find that the subject merchandise constitutes a “set” per the terms of GRI 3, which provides the following:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
* * *
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which
cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
It is undisputed that the Lance® Disrupter imparts the LDS with its essential character, so this matter turns on whether the device falls under the scope of heading 9303, HTSUS, which provides for the following:
9303 Other firearms and similar devices which operate by the firing of an explosive charge (for example, sporting shotguns and rifles, muzzle-loading firearms, Very pistols and other devices designed to project only signal flares, pistols
and revolvers for firing blank ammunition, captive-bolt humane killers, line-throwing guns):
The term “firearm” is defined under Gun Control Act (GCA) at 18 U.S.C. §921(a)(3) as “any weapon (including a starter gun) which will or is designed to or may be readily converted to expel a projectile by the action of an explosive... [and]… the frame or receiver of any such weapon…” The following definition for “destructive device,” pursuant to the National Firearms Act, is provided for at 26 U.S.C. §5845(f):
(f) Destructive device
The term “destructive device” means
(1) any explosive, incendiary, or poison gas
(A) bomb,
(B) grenade,
(C) rocket having a propellent charge of more than four ounces,
(D) missile having an explosive or incendiary charge of more than one-quarter ounce,
(E) mine, or
(F) similar device;
(2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes; and
(3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled. The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684 (2), 4685, or 4686 of title 10 of the United States Code; or any other device which the Secretary finds is not likely to be used as a weapon, or is an antique or is a rifle which the owner intends to use solely for sporting purposes. (Emphasis added.)
We note that the Gun Control Act and National Firearms Act, which are interpreted by the BATF letter, generally pertain to the treatment of certain firearms designated to be regulated and/or taxed as they are transferred within the United States. Although the definitions of “firearm” and “destructive device” may be helpful for the purposes of identifying whether a product is considered a product of heading 9303, HTSUS, the BATF letter is of limited value in this case due to the fact that the subject of that correspondence is not tariff classification. See Amersham Corp. v. United States, 5 CIT 49, 56, 564 F. Supp. 813, 817 (1983) (Noting that “statutes, regulations and administrative interpretations relating to ‘other than tariff purposes’ are not determinative of [CBP] classification disputes”). Stated differently, that BATF considers a particular product to be outside its responsibility under the Gun Control Act and/or the National Firearms Act has no bearing on whether the subject merchandise is a firearm of heading 9303, HTSUS.
The LDS fires an explosive charge, whether that be a blank cartridge used to propel water or traditional firearm ammunition. It is a device that is, at the least, similar to a firearm in that it is designed to expel a projectile by means of an explosive, consistent with the GCA definition of a firearm. As such, we find that the LDS is properly classified under HTSUS subheading 9303.90.8000 as another device similar to a firearm that operates by firing an explosive charge.
HOLDING:
By application of GRI 3(b), the instant LDS is properly classified under HTSUS subheading 9303.90.80 as another device similar to a firearm that operates by firing an explosive charge. The general column one rate of duty, for merchandise classified under this subheading is free. NY N103295 (May 14, 2010) is thus affirmed.
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.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division