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HQ 451579




October 21, 1991

TRA CO:R:IT:I 451579 TPT

CATEGORY: RESTRICTED MERCHANDISE TOY GUNS

John B. Brew, Esq.
Donohue & Donohue
5th Floor, The Bank Building
421 Chestnut Street
Philadelphia, PA 19106

RE: Admissibility of Toy Guns

Dear Mr. Brew:

This is in response to your request for a binding ruling dated July 23, 1991, regarding sample toy guns which your client intends to import into the commerce of the United States. We understand that you wish to obtain a ruling as to the applicability of the marking requirements enacted under the Federal Energy Management Improvement Act of 1988.

ISSUE:

Whether the samples submitted satisfy the requirements of title 15, U.S.C., 5001 and title 15, C.F.R., Part 1150?

LAW AND ANALYSIS:

Section 5001 (15 U.S.C. 5001) mandates that any toy, look- alike, or imitation firearms shall have a permanently affixed blaze orange plug inserted in the barrel of such an imported article and recessed no more than six (6) millimeters from the muzzle end of the barrel. See 15 C.F.R. Part 1150.

Part 1150 enumerates the types of markings which have been approved by the Secretary of Commerce. Under section 1150.3(b) (15 C.F.R. 1150.3(b)) water guns, air-soft guns, light-emitting guns or other ejecting toy guns must have blaze orange markings permanently affixed to the exterior of the barrel and cover the circumference of the barrel from the muzzle end. Devices made entirely of transparent or translucent material are also approved if it permits unmistakable observation of the complete contents. 15 C.F.R. 1150.3(c). Also, if the exterior of the article is in bright red, orange, yellow, green, or blue, singly or as the predominant color in combination with other colors in a pattern, the article satisfies the marking requirements. 15 C.F.R. 2

1150.3(d). Finally, the marking would meet the requirements if the exterior surface is predominantly in white in combination with one or more of the colors bright red, orange, yellow, green, or blue in any pattern. 15 C.F.R. 1150.3(e).

The first sample is the Motorized Water Gun "Commando," made in China. The packaging indicates that this water gun is a product of the Larami Corporation (Item No. 9950-0). This water gun has the general appearance, shape, and/or configuration of a firearm and, therefore, must comply with the above marking requirements. The predominant color of the water gun is bright green. The portions of the gun not of bright green are the muzzle end and the plastic piece which simulates the ammunition magazine. We conclude that this sample complies with section 1150.3(d).

The next sample is described as an X-Ray Water Gun, a product of Larami Corporation, made in China (Item No. 9970-0). This item is transparent except for the green trigger, blaze orange plug, and two other small parts which are green. We conclude that this item complies with section 1150.3(c).

The third sample is also a motorized water gun, a product of the Larami Corporation, made in China (Item No. 9973-0). This item is bright orange and bright green. Along the side of the water gun "MAC 10" appears. Because the water gun is made of approved colors, we conclude that this item complies.

The last item is a motorized water gun, a product of the Larami Corporation, made in China (Item No. 9959-0). It is argued in the letter requesting a ruling that this item does not fall within the scope of 15 U.S.C. 5001 because it does not have the general appearance of a firearm. The regulations issued by the Department of Commerce state that the marking requirements apply "to toy, look-alike and imitation firearms ("devices") having the general appearance, shape, and/or configuration of a firearm . . .." 15 C.F.R. 1150.1 (emphasis added). We, therefore, conclude that this item is subject to the marking requirements.

It is implied that, based upon a previous ruling (HQ 451080 DRR), this item should not be subject to the marking requirements because of its "fluorescent blue and pink" coloring. However, we note that the toy gun ruled upon in HQ 451080 DRR was found to be beyond the scope of the marking statute because of its futuristic appearance, not the colors.

The requester also contends that if this toy gun is subject to the marking requirements, it should be found to comply because "fluorescent" pink should be considered as bright red or, alternatively, that the bright pink color be accepted as 3
complying with the intent of the law despite the fact that it is not one of the colors enumerated in the regulations.

Section 5001 (15 U.S.C. 5001) neither charged the Department of Treasury (Customs) with the administration of this law nor authorized the Department of Treasury to promulgate regulations. This section explicitly states that a plug of a specific color must be applied to the muzzle end of the barrel unless the merchandise bears alternative markings approved by the Secretary of Commerce. Customs, therefore, defers to the Department of Commerce the role of interpreting the subject statute and will continue to enforce the implementing regulations as they are currently written.

We, therefore, conclude that Item No. 9959-0 does not comply with the marking regulations.

HOLDING:

We conclude that three toy gun samples (Item Nos. 9950-0, 9970-0, and 9973-0) comply with 15 U.S.C. 5001 and 15 C.F.R. 1150.3 and, therefore, toys which are identical to the submitted samples may be imported. We further find that the sample identified as the Motorized Water Gun, Item No. 9959-0, does not comply with the marking regulations and is subject to seizure pursuant to 19 U.S.C. 1595a(c) for violations of 15 U.S.C. 5001 and 15 C.F.R. 1150.3.

Sincerely,

John F. Atwood, Chief

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