CLA-2 OT:RR:CTF:TCM H061202 RES
Port Director
U.S. Customs and Border Protection
Service Port
Suite 160
7501 Esters Blvd.
Irving, TX 75063
RE: Tariff classification of Soft Air USA, Inc., Air Guns; Application for Further Review of Protest Number 5501-09-100032.
Dear Port Director:
This letter is in reply to your memorandum dated June 8, 2009, regarding the Application for Further Review (“AFR”) of Protest Number 5501-09-100032 filed on behalf of Soft Air USA, Inc. (“Protestant”). The protest is against the U.S. Customs and Border Protection’s (“CBP”) classification of spring-powered air guns (“airsoft guns”) under the 2007 Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The articles at issue in the instant AFR are three different types of spring-powered air guns: the SW M3000 Shotgun replica, item # 27721; a Kalashnikov AK47, item # 12720; and a Colt DMPS M4 electronic rifle, item # 18980. The SW M3000 is a single-shot device with a spring assembly that is hand cocked prior to each shot. The AK47 and the M4 are automatic electric guns (“AEG”) that use a battery to drive an electric motor that cycles a piston/spring assembly that compresses the air to launch the pellets in single shots, 3-round bursts, or multiple shots in automatic mode. All three guns have a smooth bore barrel and shoot 6 mm plastic pellets.
These articles were entered on September 11, 2007, and October 4, 2007. They were liquidated, respectively, on August 1 and 22, 2008, under the subheading 9304.00.20, HTSUS, as ““[o]ther arms (for example, spring, air or gas guns and pistols, truncheons), excluding those of heading 9307: [p]istols, 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: [r]ifles.” The Protestant asserts that the proper classification of the airsoft guns is under subheading 9503.00.40, HTSUS, as “[o]ther arms . . . [p]istols, 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: [o]ther.”
ISSUE:
Whether the subject airsoft guns are classified under subheading 9304.00.20, HTSUS, as spring-powered rifles, or under subheading 9304.00.40, HTSUS, as other spring-powered guns?
LAW AND ANALYSIS:
Initially, CBP notes that the protest was timely filed on January 28, 2009, which is within 180 days after the August 1, 2008, liquidation date. 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. 5501-09-100032 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because the Protestant asserts that although CBP’s classification involves matters previously ruled upon by the Commissioner of Customs or his designee, CBP at the time of the original ruling failed to consider all facts and legal arguments that were presented.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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, the remaining GRI 2 through 6 may be applied in order.
The following HTSUS provisions are under consideration:
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
9304.00.40 Other
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, 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 (August 23, 1989). Thus, EN 93.04 provides in pertinent part:
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.
Guns rifles and pistols operating on the same principle, but with gases other than air, are also included.
(5) Similar weapons operated by the release of a heavy spring mechanism.
* * * * *
Initially, there is no dispute that the three types of airsoft guns at issue here are classified in heading 9304, HTSUS, because they are arms (weapons) not provided for in heading 9307, HTSUS, and are not firearms of headings 9301 to 9303, HTSUS. The airsoft guns are replicas in external appearance of three different types of firearms: a shotgun, an AK47 assault rifle, and a Colt M4 carbine rifle. They were classified under subheading 9304.00.20, HTSUS, as rifles that eject projectiles by the release of air compressed by a spring mechanism.
In previous rulings, the analytical approach used by CBP to determine which subheading of 9304 that replica air, gas, and spring-powered guns fell under was to classify such guns on the basis of whatever real firearm they resembled was classified in the real firearm’s respective subheading. Thus, after the initial determination that an article falls under heading 9304, HTSUS, the issue becomes whether the real firearm an air gun replicates meets the definition of a rifle in ascertaining what subheading of 9304 an air gun is classifiable under.
In Headquarters Ruling (“HQ”) H023504, dated July 31, 2008, CBP classified a replica M16 gun (the ruling didn’t elaborate on whether the gun operated by air, gas, or spring-powered) under subheading 9304.00.20, HTSUS, as a rifle under the premise that replicas of real guns are classified on the basis of their similarity in appearance to the real gun, of which they resemble, are classified. In HQ H015360, dated March 31, 2008, CBP classified various air guns under subheading 9304.00.20, HTSUS, on the basis that air guns should be classified in an analogous subheading to the subheading that the real firearms they resemble would be classified under.
In NY J87966, dated September 9, 2003, CBP classified a spring-powered airsoft gun that was a replica of a Heckler & Koch MP5 submachine gun under heading 9304.00.20, HTSUS. This ruling stated that “in most instances, an airsoft gun will be classified on the basis of the configuration of the real firearm the airsoft gun is intended to duplicate.” The ruling further added that since a real MP5 submachine is classifiable as a rifle, then airsoft replicas of real MP5s are classified as rifles in heading 9304, HTSUS. In NY G84861, dated December 7, 2000, CBP classified gas-powered pistols that shot BB’s and paintballs and resembled various real handguns (such as a 357, Glock 17, and Walther P99) under heading 9304.00.40, HTSUS. Because the guns the pistols in NY G84861 resembled were not rifles, the pistols were properly classified in the subheading for “other.” Finally, In NY G84370, dated November 27, 2000, CBP classified a spring-powered air gun and a gas-powered gun, both of which resembled an M16 carbine rifle, under subheading 9304.00.20, HTSUS. The ruling stated that the air guns were “rifles” because an air rifle is described as “a rifle using compressed air or gas to propel a pellet or BB from its barrel” and that this description of an air rifle meets the definition of the term “rifle” used in the HTSUS. Because a real M16 carbine rifle meets the definition of a rifle, the replica air gun in NY G84370 was properly classified as a rifle as well.
The Protestant is not challenging CBP’s analytical approach for determining under what subheading of 9304 air guns fall under by classifying air guns based on the classification of the real gun they are designed to resemble. Instead, the Protestant argues that the guns the articles at issue resemble—a real AK47, Shotgun, and Colt DMPS M4—do not meet the definition of “rifle.”
“Rifle” is not defined in the HTSUS. A tariff term that is not defined in the HTSUS or in the ENs is construed in accordance with its common and commercial meaning. Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). The common definition of “rifle” is a shoulder weapon with a rifled bore,” which is a barrel that has a helical groove or pattern of grooves cut into the internal barrel walls. The purpose of a rifled bore is to impart a spin on a projectile which serves to stabilize the projectile and improve its accuracy. “Rifle” is similarly defined in the United States Code and Regulations as a weapon fired from the shoulder that fires a projectile through a rifled bore. See 18 U.S.C. § 921(a)(7); 26 U.S.C. § 5845(c); and 27 C.F.R. § 447.11. Accordingly, in order for a gun, whether operating by ejecting a projectile by the firing of an explosive charge or by air, gas, or spring-powered, to be categorized as a rifle it must as a threshold have a rifled bore barrel and second, be commonly fired from the shoulder.
If the common meaning of the term “rifle” represents the fundamental definition or species, then the various types and configurations of guns that, at a minimum, meet this definition are merely different subspecies of rifles, i.e., hunting rifles, military rifles, assault rifles, that may either be classified in a catchall “rifle” subheading or, if one exists, a subheading for that specific subspecies of rifles. Under heading 9304, HTSUS, there is one subheading for rifles, 9304.00.20, and hence, all subspecies the real guns that air, gas, or spring-powered guns are replicas of that meet the threshold requirements, as defined supra, to be categorized as a “rifle” would fall under this subheading.
In regard to a real AK47 and M4 (“real guns”), these guns have rifled bore barrels and are commonly fired from the shoulder. Thus, the guns meet the threshold definition of a rifle and would be classifiable as a rifle under heading 9301. The AK47 is referred to as an “assault rifle” while the M4 is a “carbine rifle.” They have the functionality of being able to operate in three different firing modes: fire one round, three-round bursts, or fully automatic, with each trigger pull. Although, in fully automatic mode they are considered to be functioning as machine guns, they would still be classifiable in subheading 9301.90.30, HTSUS, as rifles because they meet the common definition of a rifle. The Protestant argues that because the real guns are capable of functioning as machine guns that they would be classified under subheading 9301.90.90, HTSUS, as “other” military weapons. However, even if an actual AK47 or M4 were classified in subheading 9301.90.90 or if there was a specific eo nomine subheading in heading 9301 for assault or carbine rifles, this does not mean that the real guns do not meet the fundamental definition of rifles. The real AK47 and M4, are a subspecies of rifles.
Employing CBP’s previous analytical approach in conjunction with the common definition of the term “rifle”, the AK47 replica and the Colt DMPS M4 replica are classified in subheading 9304.00.20, HTSUS, as rifles because this subheading is a catchall for all types of real guns that meet the threshold definition of rifles, such as a real AK47 or M4, regardless of what subspecies of rifles these real guns would be classified under in the headings that cover real guns.
However, CBP agrees that because a real shotgun would not be classified as a rifle, then the airsoft replica shotgun should not be classified as a rifle under subheading 9304.00.20, HTSUS, but should be classified under the subheading, 9304.00.40, HTSUS, as “other.”
Therefore, the SW M3000 Shotgun replica is classified under the specific subheading of 9304.00.40, HTSUS, as “[o]ther arms . . . [p]istols, 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: [o]ther” while the AK47 replica and the Colt DMPS M4 replica are classified under subheading 9304.00.20, “[o]ther arms . . . [p]istols, 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: [r]ifles.”
HOLDING:
Pursuant to GRI 1 through the provisions of GRI 6, the SW M3000 Shotgun replica is classified under subheading 9304.00.40, HTSUS, as “[o]ther arms . . . [p]istols, 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: [o]ther.” The general, column one, rate of duty is free. The AK47 replica and the Colt DMPS M4 replica are classified under subheading 9304.00.20, “[o]ther arms . . . [p]istols, 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: [r]ifles.” The general, column one, rate of duty is 3.9%, ad valorem.
The Protest should be GRANTED in part and DENIED in part. A copy of this ruling should be attached to the CBP Form 19 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 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