HQ H023504

July 31, 2008

**CLA-2 OT:RR:CTF:TCM** H023504 HkP

**CATEGORY:** Classification

**TARIFF NO.:** 9304.00.20

Port Director

Port of Los Angeles

U.S. Customs and Border Protection

301 E. Ocean Blvd., Suite 1400

Long Beach, CA 90802

**RE:** AFR of Protest No. 2704-07-102107; replica DPMS M-16 guns

Dear Port Director:

This is our decision regarding the Application for Further Review
("AFR") of Protest No. 2704-07-102107, timely filed on behalf of Soft
Air USA, Inc. ("SAUSA"), concerning the classification of replica M-16
guns under the Harmonized Tariff Schedule of the United States
("HTSUS").

**FACTS:**

The product at issue is described in the entry documents as a "DPMS M16
dual tone" guns, and are replicas of the DPMS Panther Arms M-16 carbine
gun. According to [The Oxford Essential Dictionary of the U.S.
Military]{.underline}, (Oxford University Press (2002)) the term
"carbine" refers to "a short rifle or musket used by cavalry." The
[Britannica Concise Encyclopedia]{.underline} (Encyclopaedia Britannica,
Inc., (2006)) further explains, in pertinent part, that a carbine is a
"light, short-barreled rifle.... Carbine versions of modern assault
rifles (such as the Russian AK-47 or the U.S. M16 rifle) are intended
for close-quarter fighting, partly replacing the submachine gun."

The merchandise was entered as part of a larger shipment on August 12,
2006, and classified in subheading 9304.00.40, HTSUS, which provides
for: "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: Other." This
entry was later rate advanced by U.S Customs and Border Protection
("CBP") and liquidated under subheading 9304.00.20, HTSUS, which
provides for: "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:
Rifles." The entry was liquidated on March 15, 2007. A protest was
timely filed on September 1, 2007, in which the protestant alleged that
the correct classification for the merchandise is under subheading
9304.00.40, HTSUS.

**ISSUE:**

What is the correct classification of the DPMS M-16 guns?

**LAW AND ANALYSIS:**

Initially, we note that the matter protested is protestable under 19
U.S.C. §1514(a)(2) as a decision on classification. The protest was
timely filed, within 90 days of liquidation of the first entry for
entries made before December 18, 2004, and within 180 days of
liquidation of the first entry for entries made on or after December 18,
2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L.
108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. §
1514(c)(3) (2006)).

Further Review of Protest No. 2704-07-102107 was properly accorded to
protestant pursuant to 19 C.F.R. § 174.24 because the decision against
which the protest was filed is alleged to involve matters previously
ruled upon by the Commissioner of Customs or his designee or the Customs
courts but facts are alleged or legal arguments presented which were not
considered as the time of the original ruling.

Classification under the HTSUS is made in accordance with the General
Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order.

The HTSUS provisions under consideration are as follows:

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 .....

The Harmonized Commodity Description and Coding System Explanatory Notes
(ENs) constitute the official interpretation of the HTSUS. While not
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]{.underline} T.D. 89-80,
54 Fed. Reg. 35127 (August 23, 1989).

EN 93.04 provides:

> 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.
>
> \* \* \*

Initially, we note two things. The first is that Protestant has made a
general argument concerning the classification of unspecified "airsoft
replica automatic weapons and machines guns." However, this AFR only
concerns replica M-16 guns that are a part of a specified entry and, as
such, only the classification of the subject M-16 guns will be addressed
by this decision. The second is that Protestant has asked CBP to
reconsider New York Ruling Letter ("NY") J87966, dated September 9,
2003, because Protestant is of the opinion that the definition of the
term "rifle" provided in that ruling was incorrect. Part 177, Bureau of
Customs and Border Protection Regulations (19 C.F.R. § 177.1 (2)),
provides, in relevant part:

> \(c\) *Who may request a ruling*. Except as otherwise provided ... a
> ruling may be requested under this part by any person who, as an
> importer or exported of merchandise, or otherwise, has a direct and
> demonstrable interest in the question or questions presented in the
> ruling request, or by an authorized agent of such person.

Based on the CBP Regulations cited above, we find that Protestant does
not have a direct and demonstrable interest in any aspect of the
classification decision made by CBP in NY J87966 and, therefore, does
not have standing to seek reconsideration of that ruling. However,
insofar as the arguments made concerning NY J87966 are relevant to the
merchandise presently being considered, they will be addressed.

There is no dispute that the merchandise at issue is provided for in
heading 9304, HTSUS, because they are arms (weapons) not provided for in
heading 9307. In addition, in keeping with the explanation provided in
EN 93.04, they are not firearms of heading 9301 to 9303, HTSUS. CBP
previously classified the merchandise at issue in subheading 9304.00.20,
HTSUS, as rifles. Protestant believes that the proper classification is
under subheading 9304.00.40, HTSUS, as arms other than rifles.

GRI 6 provides that the classification of goods in the subheadings of a
heading shall be determined according to the terms of those subheadings
and any related subheading notes and, *mutatis mutandis*, to GRIs 1
through 5, on the understanding that only subheadings at the same level
are comparable.

Protestant argues that real automatic weapons, machine guns and other
similar military firearms are properly classified as "military weapons"
in various subheadings under heading 9301, HTSUS, and that replicas of
such weapons should be similarly separately classified under heading
9304. Specifically, Protestant argues that replicas of rifles should be
classified in the *eo nomine* provision for rifles under heading 9304
(subheading 9304.00.20) and that replicas of guns other than rifles
should be classified in subheading 9304.00.40. Protestant believes that
the latter provision is the correct classification for the merchandise
at issue. In support of this argument, Protestant cites NY I84100, dated
July 22, 2002, in which CBP classified an air-powered shotgun in
subheading 9304.00.40, HTSUSA, as "other" than pistols, rifles and other
guns of subheading 9304.00.20, HTSUSA; and, NY J87966, dated September
9, 2003, in which CBP stated that, "In most instances, an airsoft gun
will be classified on the basis of the configuration of the real firearm
the airsoft gun was intended to duplicate."

Protestant also argues, although not directly, that based on the actual
linguistic meaning of the term "rifle", that is, "a device with a rifled
bore," (citing *Miriam-Webster's Online Dictionary*) or, "a gun, the
inside of whose barrel is grooved with spiral chambers, thus giving the
ball a rotary motion and insuring greater accuracy of fire," (citing
*www.dictionary.net*), the M-16 guns at issue should be classified as
other than rifles because they do not impart any spin on the plastic
pellets they shoot. Further, the "inclusion of non-rifled barrels in a
'rifle' classification would make meaningless the various distinctions
between many classes of weapons established in the tariff (e.g. rifles,
shotguns, submachine guns, etc.)."

It has been the long-standing position of CBP that replicas of real guns
are classified on the basis of their similarity in appearance to the
real gun of which they are an imitation. [See, for example]{.underline},
NY G84370, dated November 7, 2000. Furthermore, it is our view that an
imitation gun need not operate in the same way as the real gun in order
to be classified as a replica of the real gun. Our position is supported
by the explanation provided in EN 93.04 (4), that air guns, rifles and
pistols of heading 9304 "resemble" (look like) normal rifles, pistols
and the like, but may operate on the basis or compressed air or other
gas. In this case, we find, based on the definitions in the FACTS
section above, that an M-16 is a type of rifle and that the guns at
issue are replicas of M-16s, that is, they look like M-16 rifles. As
such, we find that they are properly classified under subheading
9304.00.20, HTSUSA, as rifles.

**HOLDING:**

By application of GRI 1 through the provisions of GIR 6, the replica
DSPM M-16 guns are classified in heading 9304, HTSUS. They are
specifically provided for in subheading 9304.00.20, HTSUSA, which
provides for: "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:
Rifles." The 2006 column one, general rate of duty is 3.9% *ad valorem*.

Since the rate of duty under the classification indicated above is the
same as the liquidated rate, you are instructed to deny the protest in
full. In accordance with Sections IV and VI of the CBP [Protest/Petition
Processing Handbook]{.underline} (HB 3500-08A, December 2007, pp. 24 and
26), you are to mail this decision, together with the CBP Form 19, to
the protestant no later than 60 days from the date of this letter.

No later than 60 days from the date of this letter, the Office of
International Trade, Regulations and Rulings, will make the decision
available to CBP personnel, and to the public on the CBP homepage on the
World Wide Web 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