HQ H015360

March 31, 2008

**CLA-2 OT:RR:CTF:TCM** H015360 HkP

**CATEGORY:** Classification

**TARIFF NO.:** 9304.00.2000

9304.00.4000

Port Director

Port of Minneapolis

U.S. Customs and Border Protection

330 2^nd^ Avenue South

Suite 560

Minneapolis, MN 55401

**RE:** AFR of Protest No. 3501-06-100053; toy rifles and pistols

Dear Port Director:

This is our decision regarding the Application for Further Review
("AFR") of Protest No. 3501-06-100053, timely filed on behalf of Palco
Marketing, Inc., concerning the classification of various toy guns under
the Harmonized Tariff Schedule of the United States ("HTSUS").

**FACTS:**

There are two types of merchandise at issue. The first is toy guns in
the form of rifles - the 47389C3, 47383C3, 47380B6, F4BOYS, 47340B6,
2888 and M8 models ("automatic electric guns", explained below), and the
62001B6 model (a "spring gun", explained below). The second is toy guns
in the form of pistols - the P198G and P698A models (spring guns).
According to [The Oxford Essential Dictionary of the U.S.
Military]{.underline}[^1], a "rifle" is "a gun, especially one fired
from shoulder level, having a long spirally grooved barrel intended to
make a bullet spin and thereby have greater accuracy over a long
distance." A "pistol" is "a small firearm designed to be held in one
hand." Collectively, the types of toy guns at issue are known in the
industry as airsoft guns. Generally, airsoft guns are realistic,
non-lethal, shooting replicas of actual firearms either for display or
for the purposes of skirmishing in friendly competition that fire round
plastic pellets, or "BBs". Samples of the rifle-type guns only as well
as schematic drawings and product literature were submitted for our
review. The samples were packaged together with accessories and parts
including a carrying sling, fully extendable stock, rechargeable
batteries, BBs and auto loading magazines.

According to Protestant, automatic electric guns under consideration
eject missiles by releasing compressed air. They include an electric
motor, powered by a battery, which turns a series of three gears -- the
bevel, spur and sector gears. Once the trigger is pulled, an electrical
circuit is completed which activates the motor. The motor turns the
bevel gear, which turns the spur gear, which turns the sector gear. The
sector gear pulls the piston back and compresses the spring. The sector
gear also pulls back the tappet plate and air seal nozzle which allows
one BB to feed from the magazine into the chamber. The tappet plate and
air seal nozzle are then pulled into their original forward position by
the tappet plate spring. When the tappet plate is in the forward
position, it blocks the feed tube to prevent multiple BBs from entering
the chamber and creates an airtight seal. Once the main spring is fully
compressed, the sector gear releases the piston and the spring forces
the piston forward into the gun's cylinder. The forward motion of the
piston causes the piston head to compress air in the cylinder. The
compressed air is then forced through the cylinder head and through the
air seal nozzle. This in turn forces the BB pellet that is in the
chamber down the barrel of the gun.

Protestant states that the spring guns at issue operate similar to the
automatic electric guns, except that the spring is compressed manually
by the operator who uses an external charging handle.

The merchandise was entered on May 12, 2006, and classified in
subheading 9304.00.4000, 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: Other." This entry was
later rate advanced by U.S. Customs and Border Protection ("CBP") and
liquidated under subheading 9304.00.6000, HTSUSA, which provides for:
"Other arms (for example, spring, air or gas guns and pistols,
truncheons), excluding those of heading 9307: Other." The entry was
liquidated on September 1, 2006. A protest was timely filed on September
26, 2006, in which the protestant alleged that the correct
classification of the merchandise is subheading 9304.00.4000, HTSUSA.

**ISSUE:**

What is the correct classification of the toy 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. 3501-06-100053 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 be inconsistent with a ruling
of the Commissioner of Customs or his designee with respect to the same
or substantially similar merchandise.

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:

9304.00.2000 Rifles .....

9304.00.4000 Other .....

9304.00.6000 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.

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.
>
> \* \* \*
>
> \(5\) **Similar weapons operated by the release of a heavy spring
> mechanism**.

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.

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.

CBP previously found that the merchandise at issue was classified in
subheading 9304.00.6000 because they did not meet the terms of the
subheading superior to subheading 9304.00.2000 through 9304.00.4000,
HTSUSA. Specifically, we found that the ejection of BBs from the guns
was not caused by one of the listed methods, that is, by release of
compressed air or gas, or by the release of a spring mechanism or rubber
held under tension.

Protestant argues that the correct classification of the merchandise is
in subheading 9304.00.4000, HTSUSA, because the guns function either
through the release of compressed air or by the release of a spring
mechanism.

After reviewing the samples provided as well as the schematic drawings
and product literature discussed in the FACTS section above, we find
that the merchandise at issue ejects missiles (BBs) by the release of
compressed air or by the release of a spring mechanism. As such, they
are provided for in subheadings 9304.00.2000 and 9304.00.4000, HTSUSA,
with the applicable subheading depending on their configuration.

Based on the definition of the term "rifle" provided earlier in this
decision, we find that the 47389C3, 47383C3, 47380B6, F4BOYS, 47340B6,
62001B6, 2888 and M8 models of toy guns are classified in subheading
9304.00.2000, HTSUSA, because they are replicas of types of rifles. CBP
has previously classified an air gun replicating an AK-47 machine gun in
subheading 9304.00.4000. [See]{.underline} New York Ruling Letter ("NY")
C86214, dated April 9, 1998. [See also]{.underline} **NY G84861**, dated
December 7, 2000, and **NY J87966**, dated September 9, 2003. The other
types of guns at issue, the P698A and P198G models, are classified in
subheading 9304.00.4000, HTSUSA.

> Finally, for the sake of completeness, we address the instances in
> which the guns are imported packaged together with accessories and
> parts. GRI 3(b) provides that when goods, which are, *prima facie*,
> classifiable under two or more headings, are put up in sets for retail
> sale, they shall be classified as if they consisted of the material or
> component which gives them their essential character. We have found
> that the guns are classified under heading 9304. We now conclude that
> the parts and accessories are classifiable in headings other than
> 9304, HTSUS, as that heading does not provide for parts or
> accessories. As such, we find that the components of the set are
> classified in different headings. In addition, the components are "put
> up together" to enable a user to operate the guns, and are offered for
> sale directly to users without repacking. Consequently, the items may
> not be classified separately under their respective classifications.
> Furthermore, CBP finds that the item which imparts the essential
> character of these sets is the guns. They are the dominant component
> by their role in relation to the use of the sets and are the reason
> why consumers would purchase the sets.

**HOLDING:**

By application of GRI 1, through the provision of GRI 6, the 47389C3,
47383C3, 47380B6, F4BOYS, 47340B6, 62001B6, 2888 and M8 models of toy
guns are classified in subheading 9304.00.2000, HTSUSA, which provides
for: "Other arms (for example, spring, air or gas guns and pistols,
truncheons), excluding those of heading 9307: Pistols, riles 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*.

By application of GRI 1, through the provision of GRI 6, the P198G and
P698A models of toy guns are classified in subheading 9304.00.4000,
HTSUSA, which provides for: "Other arms (for example, spring, air or gas
guns and pistols, truncheons), excluding those of heading 9307: Pistols,
riles and other guns which eject missiles by release of compressed air
or gas, or be the release of a spring mechanism or rubber held under
tension: Other." The 2006 column one, general rate of duty is Free.

You are instructed to deny the protest, except to the extent
reclassification of the merchandise as indicated above results in a net
duty reduction and partial allowance. 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

[^1]: *Available at* http://www.answers.com/topic/rifle.