CLA-2 OT:RR:CTF:EMAIN H260564 ALS
Center Director
Automotive and Aerospace Center for Excellent and Expertise
U.S. Customs and Border Protection
477 Michigan Avenue, Rm. 281 Detroit, MI 48226
Attn: Quoc Tran, Supervisory Import Specialist
RE: Internal Advice request regarding the tariff classification of certain models of small, unmanned aircraft
Dear Director
This letter is in reply to the request for Internal Advice, dated November 14, 2014, on behalf of 3D Robotics, Inc. (also referred to herein as “3DR”). The internal advice request concerns the Harmonized Tariff Schedule of the United States [HTSUS] classification of certain models of 3D Robotics’ small unmanned aircraft under Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The articles at issue are four models of small, unmanned aircraft (also referred to herein as “SUAs”), the IRIS, the Y6, and the X8, and the fully assembled Styrofoam Aero. The IRIS, the Y6, and the X8 are plastic-bodied and resemble an helicopter while the Aero has a Styrofoam body and resembles an airplane. The SUAs include the following: a Remote-Control Transmitter Unit, a rechargeable battery-Lithium polymer power pack, a micro-USB ground station connector cable, an Android tablet USB adapter, a 3DR Radio wireless data, GPS, and an optional mounting system for accessories such as cameras. All the SUAs have a flight range of 100 meters, a maximum speed of at least 50 miles per hour (56 mph for the Aero), an average flight time of at least 10-15 minutes (40 minutes for the Aero), and a payload capacity ranging from 425 grams to two kilograms. None of the four SUAs exceed 2,000 kilograms (4,409.24 pounds) in unladen weight.
The SUAs can be controlled via either remote control, computer, telephone, or tablet, and they can communicate via wireless data. They have mission planning/analysis software, but flight planning can also be done on a mobile telephone application. The SUAs also feature automatic takeoff and landing, a “return-to-launch” command, and a “follow me” function. The Aero has an autopilot system and dynamic air pressure sensor.
ISSUE:
Are the IRIS, the Y6, the X8, and the Aero, as described above, properly classified under heading 8802, which provides for "Other aircraft (for example, helicopters, airplanes); spacecraft (including satellites) and suborbital and spacecraft launch vehicles", or under heading 9503, HTSUS, which provides for “Tricycles, scooters, pedal cars and similar wheeled toys; dolls' carriages; dolls, other toys; reduced-scale (“scale?) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof...”
LAW AND ANALYSIS:
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, GRls 2 through 6 may be applied in order.
The following headings and subheadings of the 2014 HTSUS are under consideration:
8802 Other aircraft (for example, helicopters, airplanes); spacecraft (including satellites) and suborbital and spacecraft launch vehicles:
Helicopters:
8802.11.00 Of an unladen weight not exceeding 2,000 kg...
* * *
8802.20.00 Airplanes and other aircraft, of an unladen weight not exceeding 2,000 kg...
* * *
9503.00.00 Tricycles, scooters, pedal cars and similar wheeled toys; dolls' carriages; dolls, other; reduced-scale (“scale?) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof...
Subheading Note 1 to Chapter 88, HTSUS, provides “For the purposes of subheadings 8802.11 to 8802.40, the expression ‘unladen weight’ means the weight of the machine in normal flying order, excluding the weight of the crew and of fuel and equipment other than permanently fitted items of equipment.”
The Explanatory Notes (ENs) 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). We note that the EN for heading 8802, HTSUS, clarifies that “toys or models for recreational purposes” of heading 9503, HTSUS, are not covered by heading 8802, HTSUS. We also note that the EN for heading 9503 specifically includes “working scale models” of aircraft.
3DR contends that the SUAs are classifiable under heading 9503, HTSUS, because they “operate like any other remote controlled model vehicle and [provide] similar amusement and recreation”, referencing the language of heading 9503, which includes “models of a kind mainly used for recreational purposes.”
In CBP ruling HQ H257373 (May 15, 2015), we stated the following:
Classification as a toy under heading 9503, HTSUS, requires that the article be principally used as a toy for amusement and should not serve a utilitarian purpose. See StoreWALL, LLC. v. United States, 644 F.3d 1358, 1365-66 (Fed. Cir. 2011). Toys have been found to include “articles whose principal use is amusement, diversion, or play, rather than practicality.” Processed Plastic Co. v. United States, 473 F.3d 1164, 1169 (Fed. Cir. 2006) (quoting Minnetonka Brands, Inc. v. United States, 24 CIT 645, 110 F. Supp. 2d 1020 (Ct. Int’l Trade 2000). See also HQ H236028, dated December 31, 2013 (classifying an Aquadoodle product as a “toy”).
The subject SUAs are more robust in their capabilities than recreational models, given that they have functions such as mission planning/analysis and flight planning, and may be fitted with a camera to perform surveillance. The SUAs are similar in function to other unmanned aerial vehicles that perform surveillance or surveying operations. Additionally, we note that 3DR’s website, in referring to the subject aircraft, at one point stated that “all 3D robotic drones... serve as tools for data analysis including mapping, surveying and 3D modeling.” This more than suggests that the subject UAs are not merely scale working models of aircraft, rather they are fully functional unmanned aerial vehicles designed and intended for use in mapping, surveillance, and other commercial or industrial operations.
With respect to whether the instant SUAs are covered by heading 8802, HTSUS, as “other aircraft”, the EN to heading 8802 provides, in relevant part, as follows:
This heading covers:
Heavier-than-air aircraft, which are mechanically propelled. This group includes aeroplanes (landplanes, seaplanes and amphibians), gyroplanes (equipped with one or more rotors rotating freely on vertical axes), and helicopters (equipped with one or more mechanically driven rotors).
Such aircraft may be used for military purposes, the transport of persons or goods or for such activities as training, aerial photography, agricultural work, rescue duties, fire fighting or for meteorological or other scientific purposes.
Radio guided aircraft controlled from the ground or from another aircraft are covered by this heading, as are aircraft specially constructed so that they can be used as road vehicles….
The above referenced control and flight capabilities associated with the instant SUAs, along with their intended use, indicate that they fall under the scope of “other aircraft” of heading 8802, HTSUS, as clarified by the EN. Moreover, we note that the description of the scope of “other aircraft” in EN 88.02(1) is consistent with the definitions of aircraft found in Federal Aviation Administration (FAA) regulations. The FAA defines unmanned aircraft as “aircraft operated without the possibility of direct human intervention from within or on the aircraft.” See 14 CFR 107.3. The FAA defines “small unmanned aircraft” as “unmanned aircraft weighing less than 55 pounds on takeoff, including everything that is on board or otherwise attached to the aircraft. See 14 CFR 107.3. The SUAs at issue all weigh less than 55 pounds (24.95 kilograms). We note that 3DR used the colloquial term “drone” in referring to the subject SUAs on their website at the time this request for Internal Advice was submitted. The FAA notes on its website that the term “drone” is used interchangeably with “unmanned aircraft.” See https://www.faa.gov/newsroom/small-unmanned-aircraft-systems-uas-regulations-part-107. Thus, we proceed with the understanding that 3DR’s reference to the subject articles as “drones” is also reference to them as SUAs.
Based on the foregoing, we conclude that the subject UAs are not merely scale working models of aircraft; rather, they are fully functional unmanned vehicles designed and intended for use in mapping, surveillance, and other commercial or industrial operations. Therefore, in harmony with StoreWALL v. U.S., supra, as the design, functions, and operations of the subject SUAs are consistent with the unmanned aerial vehicles described EN 88.02, we find the subject SUAs are indeed aircraft of heading 8802, HTSUS.
HOLDING:
By application of GRI 1, the IRIS, the Y6, the X8, and the Aero are to be classified under heading 8802, HTSUS. Specifically, by application of GRI 6 (Note 1 to Chapter 88), the IRIS, the Y6, and the X8 are classified under subheading 8802.11.00, HTSUS, which provides for "Other aircraft (for example, helicopters, airplanes); spacecraft (including satellites) and suborbital and spacecraft launch vehicles: Helicopters: Of an unladen weight not exceeding 2,000kg..." The Aero is classified under subheading 8802.20.00, HTSUS, which provides for "Other aircraft (for example, helicopters, airplanes); spacecraft (including satellites) and suborbital and spacecraft launch vehicles: Airplanes and other aircraft, of an unladen weight not exceeding 2,000 kg..." The general column one rate of duty, for merchandise classified in these subheadings is Free.
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.
You are to mail this decision to the internal advice requester no later than 60 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 Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division