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Knife Rights Under Attack II

Posted on 22nd Jul 2009 @ 3:41 PM

Here is the entire 63 page document outlining the Proposed Rule changes on assisted opening knives.  Read it and provide formal written comments as instructed  - then PLEASE write your congressional leaders, Department of Homeland Security, and the President to voice your opposition to this new threat to our civil liberties and that age-old tradition of carrying this most useful of tools - the venerable POCKET KNIFE.

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DEPARTMENT OF HOMELAND SECURITY,
OFFICE OF THE COMMISSIONER OF CUSTOMS.
Washington, DC, May 6, 2009
The following documents of U.S. Customs and Border Protection
(‘‘CBP’’), Office of Regulations and Rulings, have been determined to
be of sufficient interest to the public and CBP field offices to merit
publication in the CUSTOMS BULLETIN.
SANDRA L. BELL,
Executive Director,
Regulations and Rulings,
Office of International Trade.
r
19 CFR PART 177
PROPOSED REVOCATION OF RULING LETTERS AND
REVOCATION OF TREATMENT RELATING TO THE
ADMISSIBILTY OF CERTAIN KNIVES WITH
SPRING-ASSISTED OPENING MECHANISMS
AGENCY: U.S. Customs and Border Protection, Department of
Homeland Security.
ACTION: Notice of proposed revocation of four ruling letters and revocation
of treatment relating to the admissibility of certain knives
with spring-assisted opening mechanisms.
SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C.
§1625(c)), as amended by section 623 of Title VI (Customs Modernization)
of the North American Free Trade Agreement Implementation
Act (Pub. L. 103–182,107 Stat. 2057), this notice advises interested
parties that U.S. Customs and Border Protection (CBP)
intends to revoke four ruling letters relating to the admissibility,
pursuant to the Switchblade Knife Act, 15 U.S.C. §§ 1241–1245 (and
the CBP Regulations promulgated pursuant thereto set forth in 19
CFR §§ 12.95–12.103) of certain knives with spring-assisted opening
mechanisms. Similarly, CBP proposes to revoke any treatment
previously accorded by it to substantially identical transactions.
Comments are invited on the correctness of the intended actions.
DATE: Comments must be received on or before June 21, 2009.
ADDRESS: Written comments are to be addressed to U.S. Customs
and Border Protection, Office of International Trade, Regulations
BUREAU OF CUSTOMS AND BORDER PROTECTION 5
and Rulings, Attention: Intellectual Property and Restricted Merchandise
Branch, Mint Annex, 799 9th Street, N.W., Washington,
D.C. 20229. Submitted comments may be inspected at U.S. Customs
and Border Protection, 799 9th Street, N.W., Washington, D.C., during
regular business hours. Arrangements to inspect submitted comments
should be made in advance by calling Joseph Clark, Trade
and Commercial Regulations Branch, at (202) 325–0089.
FOR FURTHER INFORMATION CONTACT: Andrew M. Langreich,
Intellectual Property and Restricted Merchandise Branch, at (202)
325–0089.
SUPPLEMENTARY INFORMATION:
BACKGROUND
On December 8, 1993, Title VI (Customs Modernization) of the
North American Free Trade Agreement Implementation Act (Pub. L.
103–182, 107 Stat. 2057) (hereinafter ‘‘Title VI’’) became effective.
Title VI amended many sections of the Tariff Act of 1930, as
amended, and related laws. Two new concepts which emerged from
the law are informed compliance and shared responsibility.
These concepts are premised on the idea that in order to maximize
voluntary compliance with customs laws and regulations, the trade
community needs to be clearly and completely informed of its legal
obligations. Accordingly, the law imposes a greater obligation on
CBP to provide the public with improved information concerning the
trade community’s responsibilities and rights under the customs and
related laws. In addition, both the trade and CBP share responsibility
in carrying out import requirements. For example, under section
484 of the Tariff Act of 1930 (19 U.S.C. §1484), as amended, the importer
of record is responsible for using reasonable care to enter,
classify and value imported merchandise, and provide any other information
necessary to enable CBP to properly assess duties, collect
accurate statistics and determine whether any other applicable legal
requirement is met.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.
§1625(c)(1)), as amended by section 623 of Title VI, this notice advises
interested parties that CBP intends to revoke four ruling letters
concerning to the admissibility of certain knives with springassisted
opening mechanisms. Although in this notice CBP is
specifically referring to the revocation of Headquarters Ruling Letters
(HQ) 116315, dated March 1, 2005 (Attachment A); HQ
W116730, dated November 7, 2006 (Attachment B); HQ H016666,
dated December 12, 2007 (Attachment C) and HQ H032255, dated
August 12, 2008 (Attachment D), this notice covers any rulings on
the admissibility of such merchandise which may exist but have not
been specifically identified. CBP has undertaken reasonable efforts
to search existing databases for rulings in addition to those identi-
6 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
fied. No further rulings have been found. Any party who has received
an interpretive ruling or decision (i.e., ruling letter, internal advice
memorandum or decision or protest review decision) on the admissibility
of merchandise subject to this notice should advise CBP during
this notice period.
Similarly, pursuant to section 625(c)(2), Tariff Act of 1930 (19
U.S.C. § 1625 (c)(2)), as amended by section 623 of Title VI, CBP intends
to revoke any treatment previously accorded by CBP to substantially
identical transactions. Any person involved with substantially
identical transactions should advise CBP during this notice
period. An importer’s failure to advise CBP of substantially identical
transactions or of a specific ruling not identified in this notice, may
raise issues of reasonable care on the part of the importer or its
agents for importations of merchandise subsequent to the effective
date of the final decision on this notice.
In HQ 116315, HQ W116730, HQ H016666, and HQ H032255,
CBP determined that certain knives with spring- or release-assisted
opening mechanisms were admissible pursuant to the Switchblade
Knife Act, 15 U.S.C. §§ 1241–1245 and the CBP Regulations promulgated
pursuant thereto and set forth in 19 CFR §§ 12.95–
12.103. Based on our recent review and reconsideration of HQ
116315, HQ W116730, HQ H016666, and HQ H032255, and reexamination
of several of the knives therein at issue, we have determined
that the admissibility determination in the aforementioned rulings
is incorrect. It is now CBP’s position that knives incorporating
spring- and release-assisted opening mechanisms are prohibited
from entry into the United States pursuant to the Switchblade Knife
Act, 15 U.S.C. §§ 1241–1245.
Pursuant to 19 U.S.C. § 1625(c)(1), CBP intends to revoke HQ
116315, HQ W116730, HQ H016666, and HQ H032255, and any
other ruling not specifically identified that is contrary to the determination
set forth in this notice to reflect the proper admissibility
determination pursuant to the analysis set forth in proposed Headquarters
Ruling Letters (HQs) H043122 (Attachment E), H043124
(Attachment F) H043126 (Attachment G) and H043127 (Attachment
H) . Additionally, pursuant to 19 U.S.C. §1625(c)(2), CBP intends to
revoke any treatment previously accorded by CBP to substantially
identical transactions that are contrary to the determination set
forth in this notice. Before taking this action, consideration will be
given to any written comments timely received.
DATED: May 1, 2009
JEREMY BASKIN,
Director,
Border Security & Trade Compliance Division
Attachments
BUREAU OF CUSTOMS AND BORDER PROTECTION 7
[ATTACHMENT A]
DEPARTMENT OF HOMELAND SECURITY.
U.S. CUSTOMS AND BORDER PROTECTION,
HQ 116315
March 1, 2005
RES–2–23 RR:IT:EC 116315 GOB
CATEGORY: Restricted Merchandise
THOMAS M. KEATING, ESQ.
HODES, KEATING & PILON
39 South LaSalle Street Suite 1020
Chicago, IL 60603–1731
RE: HQ 116229 Modified; Knives; Switchblade Knives; 15 U.S.C. §§ 1241–
1245; 19 CFR §§ 12.95–12.97
DEAR MR. KEATING:
This letter is in reply to your letter of September 17, 2004 on behalf of
Fiskars Brands, Inc. (‘‘Fiskars’’), requesting reconsideration of HQ 116229,
dated July 8, 2004. You made an additional submission of December 14,
2004 and participated in a telephone conference on October 29, 2004. We
have reviewed HQ 116229 and have determined that it should be modified.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as
amended by section 623 of Title VI (Customs Modernization) of the North
American Free Trade Agreement Implementation Act, Pub. L. 103–182, 107
Stat. 2057, 2186 (1993), notice of the proposed modification of HQ 116229, as
described below, was published in the Customs Bulletin on January 26,
2005. No comments were received in response to the notice. One request for
reconsideration of another ruling was received. That request will be considered
separately from the subject notice.
FACTS:
You request reconsideration of HQ 116229, wherein we determined that the
knives at issue were switchblades and therefore prohibited entry into the
United States pursuant to the Switchblade Knife Act (15 U.S.C. §§ 1241–
1245).
You describe the knives as follows:
The subject merchandise are release assisted knives designed to be primarily
used as a ‘‘general carry.’’ The knife’s features, such as the belt
clip and serrated edge, are characteristic of a jackknife or pocket knife,
rather than a weapon. There are two versions of the knives at issue.
Part number 22–0761 [07161] is a serrated blade version (previously attached
as Sample A) and part number 22–07162 is a fine edged version
(previously attached as Sample B) [Footnote omitted.]
. . . part number 22–07161 (Exhibit A) is a folding blade knife made in
Taiwan. The knife is made of metal and includes a pocket clip on the
side of the handle. The knife has the visual appearance of a jackknife or
pocketknife. The knife measures 4 1⁄4 inches long when closed. When extended,
the blade of the knife measures 3 inches total. The blade has a
serrated section measuring 1 1⁄4 inches. The overall length of the knife,
when extended, is 7 1⁄4 inches. There is a 3/16 inch thumb stud on each
8 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
side of the unsharpened edge near the base of the blade used for pulling
the blade open. The blade has a single edge and can be locked into an
open position by the use of a safety device. The same safety device is
used to lock the knife in the closed position. This device does not act to
open or close the knife – its sole function is to keep the knife locked in
the knife’s then-existing position. The knife also has a lock mechanism
that must be released to close the knife once the knife is open. This
mechanism is not engaged in any way to open the knife. Release assisted
knife, part number 22–07162 (Exhibit B), is identical in description
to part number 22–07161 (Exhibit A), except that it has a fine edge,
not a serrated blade.
ISSUE:
Whether the subject knives are prohibited entry into the United States pursuant
to the Switchblade Knife Act, 15 U.S.C. §§ 1241–1245.
LAWAND ANALYSIS:
Statutory and Regulatory Background
Pursuant to the Act of August 12, 1958 (Pub. L. 85–623, codified at 15 U.S.C.
§§ 1241–1245, otherwise known as the ‘‘Switchblade Knife Act’’), whoever
knowingly introduces, or manufactures for introduction, into interstate commerce,
or transports or distributes in interstate commerce, any switchblade
knife, shall be fined or imprisoned, or both.
The Customs and Border Protection (‘‘CBP’’) Regulations promulgated pursuant
to the Switchblade Knife Act are set forth in 19 CFR §§ 12.95–12.103.
In this regard we note the following definitions:
§ 12.95 Definitions.
Terms as used in §§ 12.96 through 12.103 of this part are defined as follows:
(a) Switchblade knife. . . . any imported knife, . . . including ‘‘Balisong’’,
‘‘butterfly’’ . . . knives, which has one or more of the following
characteristics or identities:
(1) A blade which opens automatically by hand pressure applied to
a button or device in the handle of the knife, or any knife with a
blade which opens automatically by operation of inertia, gravity,
or both;
(2) Knives which, by insignificant preliminary preparation, as described
in paragraph (b) of this section, can be altered or converted
so as to open automatically by hand pressure applied to
a button or device in the handle of the knife or by operation of
inertia, gravity, or both;
(3) Unassembled knife kits or knife handles without blades which,
when fully assembled with added blades, springs, or other
parts, are knives which open automatically by hand pressure
applied to a button or device in the handle of the knife or by operation
of inertia, gravity, or both; or
(4) Knives with a detachable blade that is propelled by a springoperated
mechanism, and components thereof.
. . .
BUREAU OF CUSTOMS AND BORDER PROTECTION 9
(c) Utilitarian use. ‘‘Utilitarian use’’ includes but is not necessarily
limited to use:
(1) For a customary household purpose;
(2) For usual personal convenience, including grooming;
(3) In the practice of a profession, trade, or commercial or employment
activity;
(4) In the performance of a craft or hobby;
(5) In the course of such outdoor pursuits as hunting and fishing;
and
(6) In scouting activities.
Other pertinent regulations are as follows:
§ 12.96 Imports unrestricted under the Act.
(a) Common and special purpose knives. Imported knives with a blade
style designed for a primary utilitarian use, as defined in § 12.95(c),
shall be admitted to unrestricted entry provided that in condition as
entered the imported knife is not a switchblade knife as defined in
§ 12.95(a)(1). . . .
§ 12.97 Importations contrary to law.
Importations of switchblade knives, except as permitted by 15 U.S.C.
1244, are importations contrary to law and are subject to forfeiture under
19 U.S.C. 1595a(c).
HQ 116229
In HQ 116229, dated July 8, 2004, this office ruled that the subject knives
were switchblades within the meaning of 19 CFR 12.95(a)(4) and were
therefore prohibited entry into the U.S. pursuant to the Switchblade Knife
Act. HQ 116229 did not address whether the knives were switchblades
within the meaning of 19 CFR 12.95(a)(1) or whether they had a utilitarian
use pursuant to 19 CFR 12.95(c).
Your Claims
In your submission of December 14, 2004, you made the following claims:
(1) The subject knives are not switchblade knives within the meaning of 19
CFR 12.95(a)(1).
(2) In HQ 114990 CBP found that knives similar to the subject knives had
blades designed for utilitarian uses within the meaning of 19 CFR 12.95(c).
(3) Marketing and promotional materials with respect to the subject knives
are not yet available as Fiskars has not begun commercially importing the
knives. You submitted various marketing materials with respect to other
Fiskars’ products, some of which are similar to the subject knives. Such
similar knives, which are within the same class of lightweight folding knives
as the subject knives, are the ‘‘E-Z-Out,’’ ‘‘Gator’’ and ‘‘L.S.T.’’ knives. Promotional
materials for the Gator knives provide that they are ‘‘used by a wide
assortment of people including fishing and hunting enthusiasts, electricians
and repairmen and many more.’’ Materials for the E-Z-Out knives provide:
‘‘A hard working electrician, repairman, policeman or home repair person
seldom has both hands free to retrieve a knife. With the E-Z-Out
10 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
they need only one hand to reach down, grab the knife, open it, use it and
put it away.’’ Materials for the L.S.T. knives refer to them as ‘‘the perfect
pocket knives.’’ They are ‘‘light enough to be carried everywhere, strong
enough for everyday activities, and tough enough to do anything.’’
You therefore contend that the subject knives should be admitted to unrestricted
entry pursuant to 19 CFR 12.96(a).
Our Analysis and Determination
As indicated above, in HQ 116229 this office found that the subject knives
are switchblades within the meaning of 19 CFR 12.95(a)(4). Upon further review,
however, we have now determined that the subject knives are not
switchblades within the meaning of 19 CFR 12.95(a)(1) because they do not
meet the criteria therein, i.e., they do not open automatically by hand pressure
applied to a button or device in the handle, nor do they open automatically
by operation of inertia, gravity, or both. We find additionally that the
subject knives have a blade style designed for a primary utilitarian use
within the meaning of 19 CFR 12.95(c).
Accordingly, we conclude that the requirements of 19 CFR 12.96(a) are satisfied,
i.e., the subject knives have a blade style designed for a primary utilitarian
use as defined in 19 CFR 12.95(c) and they are not switchblades
within the meaning of 19 CFR 12.95(a)(1). Therefore, pursuant to 19 CFR
12.96(a), the subject knives (part nos. 22–07161 and 22–07162) are permitted
unrestricted entry into the United States.
HOLDING:
The subject knives (part nos. 22–07161 and 22–07162) are permitted unrestricted
entry into the United States pursuant to 19 CFR 12.96(a).
EFFECT ON OTHER RULINGS:
HQ 116229 is modified. In accordance with 19 U.S.C. 1625(c), this ruling
will become effective 60 days after publication in the Customs Bulletin.
CHARLES D. RESSIN
Acting Director,
International Trade Compliance Division.
r
[ATTACHMENT B]
DEPARTMENT OF HOMELAND SECURITY.
U.S. CUSTOMS AND BORDER PROTECTION,
HQ W116730
November 7, 2006
RES–2–23 RR:BSTC:CCI W116730 GOB
CATEGORY: Restricted Merchandise
MATTHEW K. NAKACHI, ESQ.
SANDLER, TRAVIS & ROSENBERG AND GLAD & FERGUSON, P.C.
One Sutter Street 10th Floor
San Francisco, CA 94104
RE: Knives; Switchblade Knives; 15 U.S.C. §§ 1241–1245; 19 CFR
§§ 12.95–12.97
DEAR MR. NAKACHI:
This letter is in reply to your letter of May 31, 2006 on behalf of Columbia
BUREAU OF CUSTOMS AND BORDER PROTECTION 11
River Knife and Tool (‘‘CRKT’’), requesting a ruling with respect to the admissibility
of certain knives described below. Your ruling request was transferred
to this branch for response on October 11, 2006. Our ruling is set
forth below.
FACTS:
You describe the knives as follows:
The Outburst mechanism operates via a slight spring action, which assists
in the opening of the knife by application of the finger or thumb
pressure on a thumb stud or disc which protrudes from the side of the
blade, allowing the blade to be more easily pushed to an open and
locked position. The interior of the blade is engineered such that the
spring actually provides resistance, which prevents the knife from opening,
until the blade is opened to approximately a 30-degree angle.
Hence, when incorporated into knives, the Outburst mechanism only
assists in the opening of the knife when the blade is opened to approximately
30-degrees. The user is unable to modify this restriction since at
angles less than 30-degrees, the spring exerts back-pressure which
holds the blade closed. . . . This back-pressure arises from the engineering
of the tempered blade shape and not from the mere tightening of a
blade screw.
Since the Outburst mechanism holds the blade closed, it renders the
tightness of the blade screw irrelevant for purposes of review under
the Switchblade Knife Act. . . .As a secondary level of protection, even if
the main spring of the Outburst mechanism is removed, the locking arm
of the knife itself contains a ball-detent bias against the blade which
prevents the knife from being flicked open by inertia or gravity. The
ball-detent bias is also not readily accessible to modification by the user.
The knife models subject to this ruling are as follows:
1. The Koji Hara Ichi consists of a drop-point, pen-knife blade, in black
or silver. The body of the knife is built on an open frame with Zytel
scale inserts and fasteners and a removable clip. . . .
2. The My Tighe consists of a stainless-steel, utilitarian blade with optional
serrations. The knife includes black Zytel inserts, black hardware
and a black Teflon-plated, removable clip. . . .
3. The Kommer Full Throttle consists of a stainless-steel, straight blade
with optional serrations. The knife is built on an open frame with a
flat handle profile. . . .
All of the blades are readily identifiable as being designed for personal,
utilitarian use. . . .
. . .
. . . Such single-handed opening is greatly beneficial to craftsmen,
outdoorsmen and workers, who are engaged in a particular task when
the need to simultaneously make a cut arises. For example, a fisherman
could be holding a fish caught on a fishing line with one hand, while
both drawing and opening an Outburst assisted-opening knife with the
other hand.
[All emphasis in original.]
12 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
You have submitted samples of the following knives, as identified on their
packages: 1080 Full Throttle; 1081 Full Throttle; 1070 Ichi; 1070KSC Ichi;
1070R Red Ichi Asist.; 1090 My Tighe; 1091 My Tighe; and 1091K My Tighe
Black. It is these eight knives which are the subject of this ruling. In the
closed position, these knives range in length from four and one-half inches to
three and one-quarter inches. The blades range in length from three and
one-half inches to two and three-eighths inches.
ISSUE:
Whether the subject knives are prohibited entry into the United States pursuant
to the Switchblade Knife Act, 15 U.S.C. §§ 1241–1245.
LAWAND ANALYSIS:
Pursuant to the Act of August 12, 1958 (Pub. L. 85–623, codified at 15 U.S.C.
§§ 1241–1245, otherwise known as the ‘‘Switchblade Knife Act’’), whoever
knowingly introduces, or manufactures for introduction, into interstate commerce,
or transports or distributes in interstate commerce, any switchblade
knife, shall be fined or imprisoned, or both.
The Customs and Border Protection (‘‘CBP’’) Regulations promulgated pursuant
to the Switchblade Knife Act are set forth in 19 CFR §§ 12.95–12.103.
In this regard we note the following definitions:
§ 12.95 Definitions.
Terms as used in §§12.96 through 12.103 of this part are defined as follows:
(a) Switchblade knife. . . . any imported knife, . . . including
‘‘Balisong’’, ‘‘butterfly’’ . . . knives, which has one or more of the following
characteristics or identities:
(1) A blade which opens automatically by hand pressure applied to
a button or device in the handle of the knife, or any knife with a
blade which opens automatically by operation of inertia, gravity,
or both;
(2) Knives which, by insignificant preliminary preparation, as described
in paragraph (b) of this section, can be altered or converted
so as to open automatically by hand pressure applied to
a button or device in the handle of the knife or by operation of
inertia, gravity, or both;
(3) Unassembled knife kits or knife handles without blades which,
when fully assembled with added blades, springs, or other
parts, are knives which open automatically by hand pressure
applied to a button or device in the handle of the knife or by operation
of inertia, gravity, or both; or
(4) Knives with a detachable blade that is propelled by a springoperated
mechanism, and components thereof.
(c) Utilitarian use. ‘‘Utilitarian use’’ includes but is not necessarily limited
to use:
(1) For a customary household purpose;
(2) For usual personal convenience, including grooming;
BUREAU OF CUSTOMS AND BORDER PROTECTION 13
(3) In the practice of a profession, trade, or commercial or employment
activity;
(4) In the performance of a craft or hobby;
(5) In the course of such outdoor pursuits as hunting and fishing;
and
(6) In scouting activities.
Other pertinent regulations are as follows:
§ 12.96 Imports unrestricted under the Act.
(a) Common and special purpose knives. Imported knives with a blade
style designed for a primary utilitarian use, as defined in § 12.95(c),
shall be admitted to unrestricted entry provided that in condition as
entered the imported knife is not a switchblade knife as defined in
§ 12.95(a)(1). . . .
§ 12.97 Importations contrary to law.
Importations of switchblade knives, except as permitted by 15 U.S.C.
1244, are importations contrary to law and are subject to forfeiture under
19 U.S.C. 1595a(c).
In HQ 116315, dated March 1, 2005, we stated as follows:
. . . we have now determined that the subject knives are not
switchblades within the meaning of 19 CFR 12.95(a)(1) because they do
not meet the criteria therein, i.e., they do not open automatically by
hand pressure applied to a button or device in the handle, nor do they
open automatically by operation of inertia, gravity, or both. We find additionally
that the subject knives have a blade style designed for a primary
utilitarian use within the meaning of 19 CFR 12.95(c).
Accordingly, we conclude that the requirements of 19 CFR 12.96(a) are
satisfied, i.e., the subject knives have a blade style designed for a primary
utilitarian use as defined in 19 CFR 12.95(c) and they are not
switchblades within the meaning of 19 CFR 12.95(a)(1). Therefore, pursuant
to 19 CFR 12.96(a), the subject knives (part nos. 22–07161 and
22–07162) are permitted unrestricted entry into the United States.
We have carefully examined the eight knives which you have submitted.
These knives are substantially similar in operation to the knives in HQ
116315. We find that the subject knives are not switchblade knives within
the meaning of 19 CFR § 12.96(a)(1) in that the blades do not open automatically
by hand pressure applied to a button or device in the handle of the
knife (there is no opening device on the handle), nor do the knives open automatically
by operation of inertia or gravity. We further find that the knives
have a blade style designed for a primary utilitarian use within the meaning
of 19 CFR § 12.95(c).
Based upon these findings, we conclude that the requirements of 19 CFR
12.96(a) are satisfied, i.e., the subject knives have a blade style designed for
a primary utilitarian use as defined in 19 CFR 12.95(c) and they are not
switchblades within the meaning of 19 CFR 12.95(a)(1). Therefore, pursuant
to 19 CFR 12.96(a), the subject knives (1080 Full Throttle; 1081 Full
Throttle; 1070 Ichi; 1070KSC Ichi; 1070R Red Ichi Asist.; 1090 My Tighe;
14 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
1091 My Tighe; and 1091K My Tighe Black) are permitted unrestricted entry
into the United States.
HOLDING:
The subject knives are permitted unrestricted entry into the United States
pursuant to 19 CFR 12.96(a).
GLEN E. VEREB
Chief,
Cargo Security, Carriers, and Immigration Branch.
r
[ATTACHMENT C]
DEPARTMENT OF HOMELAND SECURITY.
U.S. CUSTOMS AND BORDER PROTECTION,
HQ H016666
December 12, 2007
ENF–4–02–OT:RR:BSTC:IPR H016666 AML
CATEGORY: Restricted Merchandise
MS. LARA A. AUSTRINS
MR. THOMAS J. O’DONNELL
RODRIGUEZ, O’DONNELL ROSS
8430 W. Bryn Mawr Ave., Suite 525
Chicago, Illinois 60631
RE: Request for Ruling Regarding the Admissibility of Knives
DEAR MS. AUSTRINS AND MR. O’DONNELL:
This is in reply to your letters dated July 17, and August 2, 2007, to the
National Commodity Specialist Division, New York, in which you requested
a ruling regarding the admissibility of certain knives described below. As
you are aware, your ruling request was transferred to this branch for response.
A sample was provided for our consideration.
FACTS:
You describe the knife at issue, marketed as the ‘‘Tailwind’’ (model number
HD0071), as a single edged, release assisted, folding knife. The knife has a
‘‘false edge grind’’ on the topside of the 3 1⁄2 inch blade and measures 4 1⁄2
inches when closed. When extended, the overall length of the knife is 73⁄4
inches. The knife weighs 4.2 ounces.
The Tailwind name is derived from the patented opening mechanism. The
opening mechanism, subject of U.S. Patent number 7,051,441, is equipped
‘‘with an assist spring, which assists in the opening of the knife only after
the knife has been manually opened to approximately thirty degrees.’’ The
blade must be opened manually until the blade reaches approximately
thirty degrees at which point the mechanism engages and the blade springs
open to its extended and locked. The knife is refolded by depressing a
manual release.
BUREAU OF CUSTOMS AND BORDER PROTECTION 15
Images of the Tailwind:
ISSUE:
Whether the subject knives are prohibited from entry into the United
States pursuant to the Switchblade Knife Act, 15 U.S.C. §§ 1241–1245 and
the Customs and Border Protection (‘‘CBP’’) Regulations promulgated pursuant
to the Switchblade Knife Act set forth in 19 CFR §§ 12.95–12.103.
LAWAND ANALYSIS:
Headquarters Ruling Letters (HQ) W116730, dated November 7, 2006 and
116315, dated March 1, 2005 (copies enclosed), address CBP’s position on
the admissibility of knives with spring assisted mechanisms substantially
similar to the ones under consideration. In HQ W116730, we determined
that the ‘‘Outburst’’ knife ‘‘with a mechanism [that] only assists in the opening
of the knife when the blade is opened to approximately 30-degrees’’ was
admissible under the Switchblade Knife Act. Similarly, in HQ 116315, we
determined that a ‘‘Release assisted knife, part number 22–07162’’ are permitted
unrestricted entry into the United States pursuant to 19 CFR
12.96(a).
Accordingly, we incorporate the LAWAND ANALYSIS section of the aforementioned
rulings in this decision, as they are dispositive of the issue you
have raised.
HOLDING:
The subject knife (the ‘‘Tailwind’’ (model number HD0071)) has a blade
style designed for a primary utilitarian use as defined in 19 CFR 12.95(c)
and it is not a switchblade within the meaning of 19 CFR 12.95(a)(1). Therefore,
pursuant to the Switchblade Knife Act, 15 U.S.C. §§ 1241–1245 and 19
16 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
CFR 12.96(a), the subject knives are permitted unrestricted entry into the
United States.
GEORGE FREDERICK MCCRAY,
Chief,
Intellectual Property Rights Branch Enclosures
r
[ATTACHMENT D]
DEPARTMENT OF HOMELAND SECURITY.
U.S. CUSTOMS AND BORDER PROTECTION,
HQ H032255
August 12, 2008
ENF–4–02–OT:RR:BSTC:IPR H032255 AML
CATEGORY: Restricted Merchandise
MR. MATTHRE K. NAKACHI
SANDLER, TRAVIS & ROSENBERG, P.A.
1300 Pennsylvania Avenue Suite 400
Washington, DC 20004
RE: Request for Ruling Regarding the Admissibility of Knives
DEAR MR. NAKACHI:
This is in reply to your letter dated July 1, 2008, in which you requested a
ruling regarding the admissibility of a knife, set forth in images and described
below, pursuant to the Switchblade Knife Act, 15 U.S.C. § 1241, et
seq. A sample was provided for our consideration.
FACTS:
You describe the knife at issue, tentatively planned by your client to be
called the ‘‘VanHoy Assist,’’ as a knife ‘‘of new design.’’ The prototype is of
standard knife construction with a single-edged, utilitarian blade. You state
that ‘‘the unique nature of the knife is that the assisted-opening mechanism
operates by thumb or hand pressure downward on the blade/thumbscrew
(rather than the traditional upward pressure).’’ You further indicate that
‘‘the downward pressure releases the locking mechanism and then a slight
spring action assists the opening of the blade to the fully locked position.’’
The knife has a 3 inch blade and measures approximately 4 5⁄8 inches when
closed. When extended, the overall length of the knife is approximately 7 5⁄8
inches. The knife is refolded by depressing a manual release.
You contend that there are prior rulings which determined that knives
with similar spring-assisted opening mechanisms are admissible pursuant
to the Switchblade Knife Act, 15 U.S.C. §§ 1241–1245 and the implementing
Customs and Border Protection (‘‘CBP’’) Regulations set forth at 19 CFR
§§ 12.95–12.103. You cite New York Ruling Letter (‘‘NY’’) I86378, dated October
1, 2002, in which CBP determined that a knife that was opened by
pressing a thumb knob on the surface of the blade was admissible under the
Switchblade Knife Act. Similarly, you cite Headquarters Ruling Letter
(‘‘HQ’’) 116315, dated March 1, 2005, which modified HQ 116229, dated July
8, 2004, and held that release assisted knives were admissible pursuant to
the Switchblade Knife Act.
You contend that the VanHoy Assist is similar to the knife in HQ 116229
in that the assisted-opening mechanism holds the blade within the knife
body and does not have a button in the handle to ‘‘trigger the blade to open.’’
Thus you contend that the knife should not be considered to be a
switchblade knife under the relevant statute and regulations.
BUREAU OF CUSTOMS AND BORDER PROTECTION 17
Images of the VanHoy Assist:
ISSUE:
Whether the subject knives are prohibited from entry into the United
States pursuant to the Switchblade Knife Act, 15 U.S.C. §§ 1241–1245 and
CBP Regulations promulgated pursuant thereto set forth in 19 CFR
§§ 12.95–12.103.
LAWAND ANALYSIS:
Pursuant to the Act of August 12, 1958 (Pub. L. 85–623, codified at 15
U.S.C. §§ 1241–1245, otherwise known as the ‘‘Switchblade Knife Act’’),
whoever knowingly introduces, or manufactures for introduction, into interstate
commerce, or transports or distributes in interstate commerce, any
switchblade knife, shall be fined or imprisoned, or both.
18 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
The Customs and Border Protection (‘‘CBP’’) Regulations promulgated
pursuant to the Switchblade Knife Act are set forth in 19 CFR §§ 12.95–
12.103. In this regard we note the following definitions:
§ 12.95 Definitions.
Terms as used in §§ 12.96 through 12.103 of this part are defined as follows:
(a) Switchblade knife. . . . any imported knife, . . . including
‘‘Balisong’’, ‘‘butterfly’’ . . . knives, which ha[ve] one or more of the following
characteristics or identities:
(1) A blade which opens automatically by hand pressure applied to
a button or device in the handle of the knife, or any knife with a
blade which opens automatically by operation of inertia, gravity,
or both;
(2) Knives which, by insignificant preliminary preparation, as described
in paragraph (b) of this section, can be altered or converted
so as to open automatically by hand pressure applied to
a button or device in the handle of the knife or by operation of
inertia, gravity, or both;
(3) Unassembled knife kits or knife handles without blades which,
when fully assembled with added blades, springs, or other
parts, are knives which open automatically by hand pressure
applied to a button or device in the handle of the knife or by operation
of inertia, gravity, or both; or
(4) Knives with a detachable blade that is propelled by a springoperated
mechanism, and components thereof.
(c) Utilitarian use. ‘‘Utilitarian use’’ includes but is not necessarily
limited to use:
(1) For a customary household purpose;
(2) For usual personal convenience, including grooming;
(3) In the practice of a profession, trade, or commercial or employment
activity;
(4) In the performance of a craft or hobby;
(5) In the course of such outdoor pursuits as hunting and fishing;
and
(6) In scouting activities.
Other pertinent regulations are as follows:
§ 12.96 Imports unrestricted under the Act.
(a) Common and special purpose knives. Imported knives with a
blade style designed for a primary utilitarian use, as defined in
§ 12.95(c), shall be admitted to unrestricted entry provided that
in condition as entered the imported knife is not a switchblade
knife as defined in § 12.95(a)(1). . . .
BUREAU OF CUSTOMS AND BORDER PROTECTION 19
§ 12.97 Importations contrary to law.
Importations of switchblade knives, except as permitted by 15 U.S.C.
§ 1244, are importations contrary to law and are subject to forfeiture
under 19 U.S.C. § 1595a(c).
Headquarters Ruling Letters (HQ) W116730, dated November 7, 2006 and
HQ 116315, dated March 1, 2005, address CBP’s position on the admissibility
of knives with spring-assisted mechanisms substantially similar to those
under consideration. In HQ W116730, we determined that the ‘‘Outburst’’
knife ‘‘with a mechanism [that] only assists in the opening of the knife when
the blade is opened to approximately 30-degrees’’ was admissible under the
Switchblade Knife Act. Similarly, in HQ 116315, we determined that a ‘‘Release
assisted knife, part number 22–07162’’ is permitted unrestricted entry
into the United States pursuant to 19 CFR Part 12.96(a).
We examined the sample knife considered in HQ 116315 and compared it
to the VanHoy Assist. Although the VanHoy Assist has a button on the blade
(rather than ‘‘thumb studs’’ on the knife in HQ 116315) which must be depressed
in order to unlock and open the knife, the spring assist mechanisms
are the same.
In turning to the VanHoy Assist, application of the regulatory criteria set
forth above reveals that the subject knives are not switchblades within the
meaning of 19 CFR Part 12.95(a)(1) because they do not meet the criteria
enumerated therein, i.e., they neither open automatically by hand pressure
applied to a button or device in the handle, nor do they open automatically
by operation of inertia, gravity, or both. We find additionally that the subject
knives have a blade style designed for a primary utilitarian use within the
meaning of 19 CFR Part 12.95(c).
Accordingly, we conclude that the requirements of 19 CFR 12.96(a) are
satisfied, i.e., the subject knives have a blade style designed for a primary
utilitarian use as defined in 19 CFR Part 12.95(c) and the knives are not
switchblades within the meaning of 19 CFR Part 12.95(a)(1). Therefore, pursuant
to 19 CFR 12.96(a), the subject knives are permitted unrestricted entry
into the United States.
HOLDING:
The subject knife (the ‘‘VanHoy Assist’’) has a blade style designed for a
primary utilitarian use as defined in 19 CFR 12.95(c) and it is not a
switchblade within the meaning of 19 CFR 12.95(a)(1). Therefore, pursuant
to the Switchblade Knife Act, 15 U.S.C. §§ 1241–1245 and 19 CFR 12.96(a),
the subject knives are permitted unrestricted entry into the United States.
GEORGE FREDERICK MCCRAY,
Chief,
Intellectual Property Rights Branch.
r
20 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
[ATTACHMENT E]
DEPARTMENT OF HOMELAND SECURITY.
U.S. CUSTOMS AND BORDER PROTECTION,
HQ H043122
April 30, 2009
ENF–4–02–OT:RR:BSTC:IPR H043122 AML
CATEGORY: Restricted Merchandise
THOMAS M. KEATING, ESQ.
HODES, KEATING & PILON
134 North LaSalle Street
Suite 1300
Chicago, Illinois 60602
RE: Revocation of HQ 116315; Admissibility of Knives; Switchblade Knife
Act, 15 U.S.C. §§ 1241–1245; 19 CFR Parts 12.95–12.103
DEAR MR. KEATING:
This is in reference to Headquarters Ruling Letter (‘‘HQ’’) 116315, dated
March 5, 2005, and issued to you on behalf of Fiskars Brands, Inc., which
concerned the admissibility of the ‘‘release-assisted ’’ knives described below,
pursuant to the Switchblade Knife Act, 15 U.S.C. § 1241, et seq. In the referenced
ruling, the U.S. Customs Service (hereinafter ‘‘CBP’’)1 determined
that the knives at issue were admissible into the United States pursuant to
the Switchblade Knife Act. We have reconsidered the rationale of, and the
admissibility determination made in HQ 116315 and found both to be in error.
For the reasons set forth below, we hereby revoke HQ 116315.
FACTS:
CBP paraphrased your description of the knives at issue in HQ 116315
as follows:
The subject merchandise are release assisted knives designed to be primarily
used as a ‘‘general carry.’’ The knife’s features, such as the belt
clip and serrated edge, are characteristic of a jackknife or pocket knife,
rather than a weapon. There are two versions of the knives at issue.
Part number 22–0761 [07161] is a serrated blade version (previously attached
as Sample A) and part number 22–07162 is a fine edged version
(previously attached as Sample B) [Footnote omitted.]
. . . part number 22–07161 (Exhibit A) is a folding blade knife made in
Taiwan.
The knife is made of metal and includes a pocket clip on the side of the
handle.
The knife has the visual appearance of a jackknife or pocketknife. The
knife measures 41⁄4 inches long when closed. When extended, the blade
of the knife measures 3 inches total. The blade has a serrated section
measuring 11⁄4 inches. The overall length of the knife, when extended, is
1 Effective March 1, 2003, the United States Customs Service was renamed the United
States Bureau of Customs and Border Protection. See Homeland Security Act of 2002,
Pub. L. No. 107–296 § 1502, 2002 U.S.C.C.A.N. (116 Stat.) 2135, 2308; Reorganization Plan
Modification for the Department of Homeland Security, H.R. Doc. No. 08–32, at 4 (2003).
BUREAU OF CUSTOMS AND BORDER PROTECTION 21
71⁄4 inches. There is a 3⁄16 inch thumb stud on each side of the
unsharpened edge near the base of the blade used for pulling the blade
open. The blade has a single edge and can be locked into an open position
by the use of a safety device. The same safety device is used to lock
the knife in the closed position. This device does not act to open or close
the knife – its sole function is to keep the knife locked in the knife’s
then-existing position. The knife also has a lock mechanism that must
be released to close the knife once the knife is open. This mechanism is
not engaged in any way to open the knife. Release assisted knife, part
number 22–07162 (Exhibit B), is identical in description to part number
22–07161 (Exhibit A), except that it has a fine edge, not a serrated
blade.
The sample from HQ 116315 bears the word ‘‘Gerber’’ on its blade. A
search of that word, in combination with the part numbers recited in the
‘‘Facts’’ section above, produced results (see http://www.gerberknivesdirect.
com/ product/07162; last visited on January 13, 2009) that describe the
opening mechanism as follows: ‘‘The FAST Draw relies on our proprietary
new blade opening concept—Forward Action Spring Technology—that’s so
lightning-quick, so pleasingly easy to open with just one hand, it’s already
drawing a lot of attention among knife folks everywhere . . . Should you
choose, you can open the FAST Draw in the traditional way, using the
thumb stud. Or, if speed is the order of the day, you can simply trigger the
blade’s sudden release with your index finger.’’
ISSUE:
Whether the subject knives are prohibited from entry into the United
States pursuant to the Switchblade Knife Act, 15 U.S.C. §§ 1241–1245 and
the CBP Regulations promulgated pursuant thereto set forth in 19 CFR
§§ 12.95–12.103.
LAWAND ANALYSIS:
Pursuant to the Act of August 12, 1958 (Pub. L. 85–623, codified at 15
U.S.C. §§ 1241–1245, otherwise known as the ‘‘Switchblade Knife Act’’),
whoever knowingly introduces, or manufactures for introduction, into interstate
commerce, or transports or distributes in interstate commerce, any
switchblade knife, shall be fined or imprisoned, or both.
The Switchblade Knife Act defines ‘‘interstate commerce’’ at 15 U.S.C.
§ 1241(a):
The term ‘‘interstate commerce’’ means commerce between any State,
Territory, possession of the United States, or the District of Columbia,
and any place outside thereof.
The Switchblade Knife Act defines ‘‘switchblade knife’’ at 15 U.S.C.
§ 1241(b):
The term ‘‘switchblade knife’’ means any knife having a blade which
opens automatically—
(1) by hand pressure applied to a button or other device in the handle of
the knife, or
(2) by operation of inertia, gravity, or both[.]
The CBP Regulations promulgated pursuant to the Switchblade Knife Act
are set forth in 19 CFR §§ 12.95–12.103. We note the following definitions:
22 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
§ 12.95 Definitions.
Terms as used in §§ 12.96 through 12.103 of this part are defined as follows:
(a) Switchblade knife. ‘‘Switchblade knife’’ means any imported knife,
or components thereof, or any class of imported knife, including
‘‘switchblade’’, ‘‘Balisong’’, ‘‘butterfly’’, ‘‘gravity’’ or ‘‘ballistic’’ knives,
which has one or more of the following characteristics or identities:
(1) A blade which opens automatically by hand pressure applied to a
button or device in the handle of the knife, or any knife with a blade
which opens automatically by operation of inertia, gravity, or both;
(2) Knives which, by insignificant preliminary preparation, as described
in paragraph (b) of this section, can be altered or converted so
as to open automatically by hand pressure applied to a button or device
in the handle of the knife or by operation of inertia, gravity, or
both;
(3) Unassembled knife kits or knife handles without blades which,
when fully assembled with added blades, springs, or other parts, are
knives which open automatically by hand pressure applied to a button
or device in the handle of the knife or by operation of inertia,
gravity, or both; or
(4) Knives with a detachable blade that is propelled by a springoperated
mechanism, and components thereof[.]
(b) Insignificant preliminary preparation. ‘‘Insignificant preliminary
preparation’’ means preparation with the use of ordinarily available
tools, instruments, devices, and materials by one having no special
manual training or skill for the purpose of modifying blade heels, relieving
binding parts, altering spring restraints, or making similar minor
alterations which can be accomplished in a relatively short period of
time.
Other pertinent regulations are as follows:
§ 12.96 Imports unrestricted under the Act.
(a) Common and special purpose knives. Imported knives with a
blade style designed for a primary utilitarian use, as defined in
§ 12.95(c), shall be admitted to unrestricted entry provided that in
condition as entered the imported knife is not a switchblade knife as
defined in § 12.95(a)(1) [italicized emphasis added] . . .
§ 12.97 Importations contrary to law.
Importations of switchblade knives, except as permitted by 15 U.S.C.
§ 1244, are importations contrary to law and are subject to forfeiture
under 19 U.S.C. § 1595a(c).
The plain language of the Switchblade Knife Act and relevant CBP regulations
prohibit, inter alia, the importation of knives which are for use as
weapons while explicitly permitting the importation of ‘‘common and special
purpose’’ knives (see 19 CFR 12.95(c) ‘‘Utilitarian Use’’ and 12.96(a) (‘‘Unrestricted
Imports’’)). Several courts have addressed the breadth of the prohibition
set forth in the statute. See, e.g., Precise Imports Corp. v. Kelly, 378
BUREAU OF CUSTOMS AND BORDER PROTECTION 23
F.2d 1014, 1017 (2d Cir. 1967), cert. denied, 389 U.S. 973, 19 L. Ed. 2d 465,
88 S. Ct. 472 (1967), in which the Court of Appeals for the Second Circuit
stated that:
The report of the Senate Committee on Interstate and Foreign Commerce
which recommended passage of the Switchblade Knife Act stated
that the enforcement of state laws banning switchblade knives would be
extremely difficult as long as such knives could be freely obtained in interstate
commerce, and added:
‘‘In supporting enactment of this measure, however, your committee
considers that the purpose to be achieved goes beyond merely aiding
States in local law enforcement. The switchblade knife is, by design
and use, almost exclusively the weapon of the thug and the delinquent.
Such knives are not particularly adapted to the requirements
of the hunter or fisherman, and sportsmen generally do not employ
them. It was testified that, practically speaking, there is no legitimate
use for the switchblade to which a conventional sheath or jackknife is
not better suited. This being the case, your committee believes that it
is in the national interest that these articles be banned from interstate
commerce.’’ S.Rep. No. 1980, 85th Cong., 2d Sess., reprinted in 2
U.S. Code Cong. & Ad. News 1958, at 3435–37.
The congressional purpose of aiding the enforcement of state laws
against switchblade knives and of barring them from interstate commerce
could be easily frustrated if knives which can be quickly and easily
made into switchblade knives, and one of whose primary uses is as
weapons, could be freely shipped in interstate commerce and converted
into switchblade knives upon arrival at the state of destination. We decline
to construe the act as permitting such facile evasion.
. . . We hold, therefore, that a knife may be found to be a switchblade
knife within the meaning of the Switchblade Knife Act if it is found that
it can be made to open automatically by hand pressure, inertia, or gravity
after insignificant alterations, and that one of its primary purposes
is for use as a weapon.
In Taylor v. United States, 848 F.2d 715, 717 (6th Cir. 1988) the court, in
describing a Balisong knife, stated that:
[T]he district court described a Balisong knife as ‘‘basically a folding
knife with a split handle.’’ It went on to set out its prime use: while the
exotic knife has some utilitarian use, it is most often associated with the
martial arts and with combat . . . [and is] potentially dangerous, lethal.
. . .’’ Citing another district court decision involving the same issue,
Precise Imports Corp. v. Kelly, 378 F.2d 1014 (2d Cir.), cert. denied, 389
U.S. 973, 19 L. Ed. 2d 465, 88 S. Ct. 472 (1967) (upholding a seizure of
certain knives with no legitimate purpose), the district court described
it as of ‘‘minimal value’’ and distinguished another ‘‘seminal case interpreting
the Act’’, United States v. 1,044 Balisong Knives, No. 70–110 (D.
Ore. Sept. 28, 1970) (refusing to support seizure). The district court concluded
that ‘‘congress intended to prohibit knives that opened automatically,
ready for instant use . . . [and] was not concerned with whether
the knife’s blade would merely be exposed by gravity’’, . . . [it] intended
‘open’ to mean ‘ready for use.’ ’’ Taylor v. United States, 848 F.2d 715,
717 (6th Cir. 1988).
24 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
See also Taylor v. McManus, 661 F. Supp. 11, 14–15 (E.D. Tenn. 1986), in
which the Court of Appeals for the Eastern District of Tennessee observed:
In examining the congressional record, it seems obvious that congress
intended to prohibit knives which opened automatically, ready for instant
use. Rep. Kelly, for example, described the switchblade ‘‘as a
weapon (which) springs out at the slightest touch and is ready for instant
violence.’’ Switchblade Knives: Hearings Before a Subcommittee of
the Committee on Interstate and Foreign Commerce, House of Rep., 85th
Cong., 2d Sess. 13, 29 (1958). She also noted that the prohibited gravity
knife opens and ‘‘anchors in place automatically. Every bit as fast as the
switchblade, it has proved to be as effective a killer.’’ Id. at 29. Similarly,
Rep. Delaney described the prohibited gravity knives as ‘‘knives (which)
open and lock automatically at a quick flick of the wrist.’’ 104 CONG.
REC., 85th Cong., 2nd Sess. 12398 (June 26, 1958). (Emphasis supplied).
Apparently, then, Congress was not concerned with whether the
knife’s blade would merely be exposed by gravity. Instead, they intended
‘‘open’’ to mean ‘‘ready for use’’, as exhibited in Rep. Kelley’s testimony
that the switchblade opened ‘‘ready for instant violence’’ and her and
Rep. Delaney’s comments that the gravity knife opened and locked automatically.
While the Court does not intend to read into the Statute a requirement
that the blades ‘‘lock’’ automatically, it does seem apparent
that Congress intended ‘‘open’’ to mean ‘‘ready for use’’. Obviously a
knife that has not locked into an open position is not ready for use.
Since the Balisong knives cannot be used until the second handle is
manually folded back and clasped, the Court finds that they do not open
automatically by force of gravity or inertia.2
Based primarily on 15 U.S.C. § 1241(b)(1) (see also the first clause of 19
CFR Part 12.95(a)(1)) which defines a switchblade knife as being a knife
having a blade which opens automatically by hand pressure applied to a
button or device in the handle of the knife, as well as reliance upon the exception
set forth at 19 CFR Part 12.95(c) regarding knives with a blade style
designed for a primary utilitarian use, CBP decided in several rulings, including
HQ 116315, that knives with spring-assisted opening mechanisms
are not switchblades as contemplated by the Switchblade Knife Act and
implementing regulations.
Notwithstanding, because of the intrinsic health and public safety concerns
underlying the statute and regulations, it is necessary to reassess our
position regarding knives with spring-assisted opening mechanisms as 1)
there are no judicial decisions interpreting, other than in the context of
balisong knives, 15 U.S.C. § 1241(b)(2) and the second clause of 19 CFR
Part 12.95(a) (discussed below) and 2) CBP has issued inconsistent rulings,
2The conclusion regarding Balisong knives was reversed by Taylor v. United States, 848
F.2d 715, 1988 U.S. App. LEXIS 7761 (6th Cir. Tenn. 1988): ‘‘There is sufficient indication in
the legislative history that the intent was to exclude these martial arts weapons, which
even the district court admitted ‘‘can be opened very rapidly, perhaps in less than 5
seconds . . . [and] are potentially dangerous, lethal weapons.’’ Id. at 720. Further, Balisongs
were added to the list of prohibited knives when the regulations were amended in 1990. See
the discussion of the regulatory amendments in HQ H030606, dated August 12, 2008, page
4.
BUREAU OF CUSTOMS AND BORDER PROTECTION 25
of which HQ 116315 is one, regarding the issue of whether knives with
spring-assisted opening mechanisms are admissible or prohibited from importation
into the United States.
In Alaska Trojan P’ship v. Gutierrez, 425 F.3d 620, 628 (9th Cir. Alaska
2005), the Court of Appeals for the 9th Circuit stated, with regard to the interpretation
of agency regulations that:
‘‘In ascertaining the plain meaning of [a] statute, the court must look to
the particular statutory language at issue, as well as the language and
design of the statute as a whole.’’ McCarthy v. Bronson, 500 U.S. 136,
139, 114 L. Ed. 2d 194, 111 S. Ct. 1737 (1991) (quoting K Mart Corp. v.
Cartier, Inc., 486 U.S. 281, 291, 100 L. Ed. 2d 313, 108 S. Ct. 1811
(1988)) (alteration in original). When a statute or regulation defines a
term, that definition controls, and the court need not look to the dictionary
or common usage. Compare F.D.I.C. v. Meyer, 510 U.S. 471, 476,
127 L. Ed. 2d 308, 114 S. Ct. 996 (1994) (‘‘In the absence of such a definition,
we construe a statutory term in accordance with its ordinary or
natural meaning.’’). An agency’s interpretation of a regulation must
‘‘conform with the wording and purpose of the regulation.’’ Public Citizen
Inc. v. Mineta, 343 F.3d 1159, 1166 (9th Cir. 2003).
Because of the existence of conflicting rulings (i.e., rulings which have determined
that knives with spring-assisted opening mechanisms are
switchblades as defined in the statute and others which have made the opposite
conclusion), we have reexamined the definition of the word
‘‘switchblade knife’’ set forth at 15 U.S.C. § 1241(b) and 19 CFR Part
12.95(a)(1) and have determined that the definition set forth therein captures
and proscribes, in addition to ‘‘traditional’’ switchblades, the importation
of knives with spring-assisted opening mechanisms, often equipped
with thumb studs or protrusions affixed to the base of the blade (rather than
in the handle of the knives as set forth in the first clause of 19 CFR Part
12.95(a)(1)). The relevant regulatory language identifies and defines
‘‘switchblade knives’’ by exemplars (‘‘ ‘‘switchblade’’, ‘‘Balisong’’, ‘‘butterfly’’,
‘‘gravity’’ or ‘‘ballistic’’ knives’’) and by definition (‘‘or any class of imported
knife . . . which has one or more of the following characteristics or identities:
(1) A blade which opens automatically by hand pressure applied to a button
or device in the handle of the knife, or any knife with a blade which opens
automatically by operation of inertia, gravity or both[.]’’)
In reconsidering what types of knives are contemplated by the statute, we
interpret the controlling terms according to their common meanings3. The
term ‘‘automatically’’ is defined at http://www.merriam-webster.com/
dictionary/ automatically as:
1 a: largely or wholly involuntary ; especially : reflex 5 <automatic
blinking of the eyelids> b: acting or done spontaneously or unconsciously
c: done or produced as if by machine : mechanical <the answers
3A fundamental canon of statutory construction requires that ‘‘unless otherwise defined,
words will be interpreted as taking their ordinary, contemporary, common meaning.’’ Perrin
v. United States, 444 U.S. 37, 42, 62 L. Ed. 2d 199, 100 S. Ct. 311 (1979); see also 2A Norman
J. Singer, Sutherland Statutory Construction § 46:01 (6th ed. 2000). United States v.
Lehman, 225 F.3d 426, 429 (4th Cir. S.C. 2000).
26 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
were automatic> 2: having a self-acting or self-regulating mechanism
<an automatic transmission> 3 of a firearm : firing repeatedly until the
trigger is released.
The term ‘‘inertia’’ is defined at http://www.merriam-webster.com/
dictionary/inertia as:
1 a: a property of matter by which it remains at rest or in uniform motion
in the same straight line unless acted upon by some external force
b: an analogous property of other physical quantities (as electricity).
See also, http://physics.about.com/od/glossary/g/inertia.htm: Definition:
Inertia is the name for the tendency of an object in motion to remain
in motion, or an object at rest to remain at rest, unless acted upon
by a force. This concept was quantified in Newton’s First Law of Motion;
and http://dictionary.reference.com/browse/ inertia: 2. Physics. a. the
property of matter by which it retains its state of rest or its velocity
along a straight line so long as it is not acted upon by an external force.
In Taylor v. United States, 848 F.2d 715, 720 (6th Cir. Tenn. 1988), the
United States Court of Appeals for the Sixth Circuit, in analyzing the terms
of the statute and regulations at issue stated that:
‘‘Automatically’’ as used in the statute does not necessarily mean simply
by operation of some inanimate connected force such as the spring in
a literal switchblade. For example, the type of gravity or ‘‘flick’’ knife
which is indisputably within the statute requires some human manipulation
in order to create or unleash the force of ‘‘gravity’’ or ‘‘inertia’’
which makes the opening ‘‘automatic.’’
Knives equipped with spring- and release-assisted opening mechanisms
are knives which ‘‘require[ ] some human manipulation in order to create or
unleash the force of ‘‘gravity’’ or ‘‘inertia’’ which makes the opening ‘‘automatic.’’
’’ See Taylor, supra. The fact that they differ in design (most if not all
are equipped with thumb studs affixed to the base of the blunt side of the
blade) from a traditional switchblade (in which the button that activates the
spring mechanism is located in the handle of the knife), the spring-assisted
mechanisms cause, via inertia, the blades of such knives to open fully for instant
use, potentially as a weapon. Such knives are prohibited by the
Switchblade Knife Act.
Our interpretation of 15 U.S.C. § 1241(b) and 19 CFR 12.95(a)(1) is supported
by case law. In Demko v. United States, 44 Fed. Cl. 83, 88–89 (Fed.
Cl. 1999), the Court of Federal Claims, in analyzing a regulation regarding
the grandfathered sale of ‘‘street sweeper’’ shotguns, recited the following interpretations
of the word ‘‘or’’ as used in statutes and regulations:
‘‘Generally the term ‘or’ functions grammatically as a coordinating conjunction
and joins two separate parts of a sentence.’’ Ruben v. Secretary
of DHHS, 22 Cl. Ct. 264, 266 (1991) (noting that ‘‘or’’ is generally ascribed
disjunctive intent unless contrary to legislative intent). As a disjunctive,
the word ‘‘or’’ connects two parts of a sentence, ‘‘but disconnect[
s] their meaning, the meaning in the second member excluding
that in the first.’’ Id. (quoting G. Curme, A Grammar of the English Language,
Syntax 166 (1986)); see Quindlen v. Prudential Ins. Co., 482 F.2d
876, 878 (5th Cir. 1973) (noting disjunctive results in alternatives,
which must be treated separately). Nonetheless, courts have not ad-
BUREAU OF CUSTOMS AND BORDER PROTECTION 27
hered strictly to such rules of statutory construction. See Ruben, 22 Cl.
Ct. at 266. For instance, ‘‘it is settled that ‘or’ may be read to mean ‘and’
when the context so indicates.’’Willis v. United States, 719 F.2d 608, 612
(2d Cir. 1983); see Ruben, 22 Cl. Ct. at 266 (quoting same); see also
DeSylva v. Ballentine, 351 U.S. 570, 573, 100 L. Ed. 1415, 76 S. Ct. 974
(1956) (‘‘We start with the proposition that the word ‘or’ is often used as
a careless substitute for the word ‘and’; that is, it is often used in
phrases where ‘and’ would express the thought with greater clarity.’’);
Union Ins. Co. v. United States, 73 U.S. 759, 764, 18 L. Ed. 879 (1867)
(‘‘But when we look beyond the mere words to the obvious intent we
cannot help seeing the word ‘or’ must be taken conjunctively. . . . This
construction impairs no rights of the parties . . . and carries into effect
the true intention of Congress. . . .’’).
In analyzing the language of 15 U.S.C. § 1241(b) and the relevant regulation,
we conclude that the word ‘‘or’’ is used conjunctively yet distinguishes
the paradigm switchblade knife (paraphrased: spring action blade released
by depression of a button in the handle) from other knives which function
similarly to the paradigm switchblade but do not have the ‘‘traditional’’ configuration
or function. Given its legislative and judicial history, the
Switchblade Knife Act is intended to proscribe the importation of any knife
that opens automatically by hand pressure applied to a button or device in
the handle of the knife and any knife with a blade which opens automatically
by operation of inertia, gravity or both.
The knives at issue open via inertia – once pressure is applied to the
thumb stud (or protrusion at the base of the blade), the blade continues in
inertial motion (caused by the combined effect of manual and springassisted
pressure) until it is stopped by the locking mechanism of the knife.
Such knives open instantly for potential use as a weapon. We therefore conclude,
in consideration of the authorities and sources Switchblade Knife Act
and implementing regulations, that the knives with spring-and release- assisted
opening mechanisms, that such knives are described and prohibited
by 15 U.S.C. § 1241(b)(2) and 19 CFR Part 12.95(a)(1).
We also have reconsidered our interpretation of the term ‘‘utilitarian use’’,
as we have in several rulings found knives with spring-assisted opening
mechanisms to be admissible because they were equipped with blades for
utilitarian use. The regulation defines, albeit by exemplar, the types of
knives (subject to the condition precedent set forth in 19 CFR 12.96: Imported
knives with a blade style designed for a primary utilitarian use, as
defined in § 12.95(c), shall be admitted to unrestricted entry provided that
in condition as entered the imported knife is not a switchblade knife as defined
in § 12.95(a)(1) [italicized emphasis added] . . .) that are considered to
be ‘‘utilitarian’’ for purposes of the statute. See 19 CFR 12.95(c):
(c) Utilitarian use. ‘‘Utilitarian use’’ includes but is not necessarily limited
to use:
(1) For a customary household purpose;
(2) For usual personal convenience, including grooming;
(3) In the practice of a profession, trade, or commercial or employment
activity;
(4) In the performance of a craft or hobby;
28 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
(5) In the course of such outdoor pursuits as hunting and fishing; and
(6) In scouting activities.
As we stated in HQ H030606, dated August 12, 2008, with regard to the
regulations implementing the Switchblade Knife Act:
The relevant CBP regulations were implemented in 1971, following notice
and comment, via Treasury Decision (‘‘T.D.’’) 71–243, and the Final
Rule was published in the Federal Register on September 13, 1971. See
Final Rule, 36 FR 18859, Sept. 23, 1971. HQ H030606 at page 3.
The notice of proposed rulemaking, published in the Federal Register on
October 24, 1970, set forth ‘‘[t]he proposed regulations . . . in tentative form
as follows’’:
(a) Definitions. As used in this section the term ‘‘switchblade knife’’
means any imported knife-
(1) Having a blade which opens automatically by hand pressure applied
to a button or device in the handle of the knife or by operation of
inertia, gravity, or both; or
(2) Having a handle over 3 inches in length with a stiletto or other
blade style which is designed for purposes that include a primary use as
a weapon, as contrasted with blade styles designed for a primary utilitarian
use, when, by insignificant preliminary preparation a Customs
officer can alter or convert such stiletto or other weapon to open automatically
as described in subparagraph (1) of this paragraph, under the
principle of the decision in the case of ‘‘Precise Imports Corporation and
Others v. Joseph P. Kelly, Collector of Customs, and Others’’ (378 F. 2d
1014). The term ‘‘utilitarian use’’ means use for any customary household
purpose; use for any usual personal convenience; use in the practice of a
profession, trade, or commercial or employment activity; use in the performance
of a craft or hobby; use, in the course of such outdoor pursuits
as hunting and fishing; use related to scouting activities; and use for
grooming, as demonstrated by jack-knives and similar standard pocket
knives, special purpose knives, scout knives, and other knives equipped
with one or more blades of such single edge nonweapon styles as clip,
skinner, pruner, sheep foot, spey, coping, razor, pen, and cuticle [italicized
emphasis added]. 35 FR 16594.
The introductory language to the Final Rule made the following prefatory
declarations:
On October 24, 1970, notice was published in the Federal Register (35
FR 16594) of a proposal to prescribe regulations to govern the importation
of articles subject to the so-called Switchblade Knife Act, sections
1 – 4, 72 Stat. 562 (15 U.S.C. 1241 – 1244).
Importers or other interested persons were given the opportunity to
participate in the rule making through submission of relevant comments,
suggestions or objections. No comments were received from importers
or other persons. 36 FR 18859.
CBP announced its proposed intention to amend the regulations via Federal
Register notice on August 18, 1989. See 54 FR 34186 of the same date.
In the introductory ‘‘Background’’ in the proposed rule, CBP (then ‘‘Customs’’)
emphasized the characteristics that would be considered in making
BUREAU OF CUSTOMS AND BORDER PROTECTION 29
determinations regarding the types of blades knives bore which would be
proscribed by the Switchblade Knife Act and implementing regulations, stating
that:
To implement the law, Customs adopted regulations which followed the
legislative language extremely closely (19 CFR 12.95–12.103). Those
regulations also specifically referred to the court decision of Precise Imports
Corp. and Others v. Joseph P. Kelly, Collector of Customs, and Others
(378 F. 2d 1014). Because of this reference, the existing regulations
appear to imply that one of the principal considerations in determining
the legality of a knife is the type of blade style the weapon possesses.
While style is relevant, it is not of overriding importance. Concealability,
and the ease with which the knife can be transformed from a ‘‘safe’’ or
‘‘closed’’ condition to an ‘‘operational’’ or ‘‘open’’ state are much more important.
The Customs position, which has been supported by court decisions,
is that Congressional intent was to address the problem of the importation,
subsequent sale, and use of a class of quick-opening, easily
concealed knives most frequently used for criminal purposes. The deletion
of the reference to the Precise Imports case does not imply that customs
does not consider the principles contained in that case important,
or that they are in any way no longer relevant. Rather, the principles in
the Precise Imports case could not be considered too limiting [italicized
emphasis added]. 54 FR 34186
There is no reference in the statutory language of the Switchblade Knife
Act to the term ‘‘utilitarian use’’; the only references appear in the CBP
regulations. Similarly, the term has received only passing reference judicially
(‘‘The government indicated that had the knives been ’’designed with a
single-edge blade and were primarily used for utilitarian purposes‘‘ rather
than ‘‘double-edged stiletto-style blades’’ they would have been admitted.’’
Taylor v. United States, 848 F.2d 715, 720 (6th Cir. Tenn. 1988)) and in the
Federal Register notices cited above. Therefore, against the explanatory language
from the Federal Register notices set forth above, we consider the ordinary
meaning of the words employed:
The term ‘‘utilitarian’’ is defined at http://dictionary.reference.com/
search?q =utilitarian as:
1. pertaining to or consisting in utility.
2. having regard to utility or usefulness rather than beauty, ornamentation,
etc.
And at the same site:
1. having a useful function; ‘‘utilitarian steel tables’’.
2. having utility often to the exclusion of values; ‘‘plain utilitarian
kitchenware’’.
The term ‘‘utility’’ is defined at http://www.merriam-webster.com/
dictionary/utility as:
1: fitness for some purpose or worth to some end.
2: something useful or designed for use.
30 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
From the exemplars set forth in 19 CFR Part 12.95(c)4 and definitions set
forth above, we conclude that knives with a primary (constructively or practically
vs. tactically, lethally or primarily as a weapon) utilitarian design
and purpose that are not captured by the definition of switchblades are admissible
pursuant to the Switchblade Knife Act. Thus, for example, pocketknives,
tradesman’s knives and other folding knives for a certain specific use
remain generally admissible, with such determinations being made, by necessity,
on a case-by-case basis. Further, the opening mechanisms of imported
knives must be considered and those that open instantly subjected to
strict scrutiny in order to determine admissibility. As we found in HQs
W479898, dated June 29, 2007 and H017909 dated December 26, 2007, that
‘‘all knives can potentially be used as weapons’’; likewise the blades of all
knives have some utility. Therefore, consideration of the characteristics of
the knives should be made, focused on those emphasized (‘‘Concealability,
and the ease with which the knife can be transformed from a ‘‘safe’’ or
‘‘closed’’ condition to an ‘‘operational’’ or ‘‘open’’ state . . .’’) in the Federal
Register notice amending the regulations at issue. Thus, given the clear purpose
enunciated during the notice and comment rulemaking process which
amended the relevant regulation, we conclude that the type of opening
mechanism is ‘‘much more important’’ than blade style in making admissibility
determinations under the Switchblade Knife Act (see 54 FR 34186,
supra).
We therefore find that knives with spring-assisted opening mechanisms
that require minimal ‘‘human manipulation’’ in order to instantly spring the
blades to the fully open and locked position cannot be considered to have a
primary utilitarian purpose; such articles function as prohibited switchblade
knives as defined by the relevant statute and regulations.
In reaching this conclusion, we reexamined the sample provided. We note
that other than a bald assertion that the knives at issue are for a primary
utilitarian purpose (you characterize the knife as ‘‘general carry’’), no evidence
substantiating that claim was presented. The knife at issue can be instantly
opened into the fully locked and ready position with one hand, simply
by pushing on either of the thumb tabs. Although the knife is marketed
as a ‘‘release-assist’’ model, it nevertheless opens via human manipulation
and inertia. See Taylor, supra, at footnote 1 on page 5. Further, it is possible
to ‘‘lock’’ the safety of the knife, adjust the blade (by pushing it ‘‘against’’ the
safety button) and to instantly deploy it by depressing the ‘‘safety’’ button in
a manner indiscernible from a ‘‘traditional’’ switchblade (and in a manner
which can be considered to be insignificant preliminary preparation; see 19
CFR Part 12.95(b), above). It is based upon the foregoing analysis and these
factual observations that we conclude that the knife at issue is a
switchblade prohibited from importation into the United States.
This decision is necessary to reconcile CBP’s position regarding the admissibility
of such knives and comports with the conclusions made in the following
rulings:
4See also 19 CFR Part 12.96(a): Among admissible common and special purpose knives
are jackknives and similar standard pocketknives, special purpose knives, scout knives,
and other knives equipped with one or more blades of such single edge nonweapon styles as
clip, skinner, pruner, sheep foot, spey, coping, razor, pen, and cuticle.
BUREAU OF CUSTOMS AND BORDER PROTECTION 31
In New York Ruling Letter (‘‘NY’’) G83213, dated October 13, 2000, CBP
determined that ‘‘a folding knife with a spring-loaded blade [which could] be
easily opened by light pressure on a thumb knob located at the base of the
blade, or by a flick of the wrist’’ was an ‘‘inertia-operated knife’’ that ‘‘is prohibited
under the Switchblade Act and subject to seizure.’’ See 19 C.F.R.
§ 12.95 (a)(1).
In NY H81084, dated May 23, 2001, CBP determined that 18 models of
knives ‘‘may be opened with a simple flick of the wrist, and therefore are
prohibited as inertial operated knives.’’
In HQ 115725, dated July 22, 2002, CBP determined that a ‘‘dual-blade
folding knife’’ in which the ‘‘non-serrated blade is spring-assisted [and] is
opened fully by the action of the spring after the user has pushed the
thumb-knob protruding from the base of the blade near the handle to approximately
45 degrees from the handle’’ ‘‘is clearly a switchblade as defined
in § 12.95(a)(4) (Knives with a detachable blade that is propelled by a
spring-operated mechanism and components thereof.)’’
In HQ 115713, dated July 29, 2002, CBP determined that four styles of
knives, three of which could ‘‘be opened by the application of finger or thumb
pressure against one of the aforementioned studs that protrudes from the
side of the blade which activates a spring mechanism automatically propelling
the blade into a fully open and locked position[,]’’ and the fourth which
‘‘opened by depressing a bar-like release on the handle which, when pushed,
releases the blade which is then partially opened by a spring mechanism’’
were switchblades pursuant to the Switchblade Knife Act and pertinent
regulations, prohibited from entry into the United States.
In H040319, dated November 26, 2008, we held that knives with springassisted
opening mechanisms are ‘‘switchblades’’ within the meaning of 19
CFR Part 12.95(a)(1) and are therefore prohibited entry into the United
States pursuant to the Switchblade Knife Act (15 U.S.C. §§ 1241–1245).
In turning to the knives at issue in HQ 116315, examination of the sample
provided and application of the regulatory criteria set forth above reveals
that the subject knives are switchblades within the meaning of 19 CFR Part
12.95(a)(1) because they meet the criteria enumerated therein, i.e., they
open automatically by operation of inertia, gravity, or both. Accordingly, we
conclude that knives with spring-assisted opening mechanisms are
switchblades within the meaning of 19 CFR Part 12.95(a)(1) and are prohibited
from importation into the United States.
HOLDING:
HQ 116315 is hereby revoked.
The subject knife is a switchblade within the meaning of 19 CFR
12.95(a)(1). Therefore, pursuant to the Switchblade Knife Act, 15 U.S.C.
§§ 1241–1245, the subject knives are prohibited from entry into the United
States.
GEORGE FREDERICK MCCRAY,
Chief,
Intellectual Property Rights and Restricted Merchandise Branch.
r
32 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
[ATTACHMENT F]
DEPARTMENT OF HOMELAND SECURITY.
U.S. CUSTOMS AND BORDER PROTECTION,
HQ H043124
April 30, 2009
ENF–4–02–OT:RR:BSTC:IPR H043124 AML
CATEGORY: Restricted Merchandise
MATTHEW K. NAKACHI, ESQ.
SANDLER, TRAVIS & ROSENBERG, P.A.
505 Sansome Street
Suite 1475
San Francisco, California 94111
RE: Revocation of HQ W116730; Admissibility of Knives; Switchblade Knife
Act, 15 U.S.C. §§ 1241–1245; 19 CFR Parts 12.95–12.103
DEAR MR. NAKACHI:
This is in reference to Headquarters Ruling Letter (‘‘HQ’’) W116730, dated
November 7, 2006, issued to you on behalf of Columbia River Knife and Tool
(‘‘CRKT’’), and concerned the admissibility of the ‘‘Outburst’’ line of ‘‘releaseassisted
’’ knives described below, pursuant to the Switchblade Knife Act, 15
U.S.C. § 1241, et seq. In the referenced ruling, U.S. Customs and Border
Protection (hereinafter ‘‘CBP’’) determined that the knives at issue were admissible
into the United States pursuant to the Switchblade Knife Act. We
have reconsidered the rationale of, and the admissibility determination
made in HQ W116730 and found both to be in error. For the reasons set
forth below, we hereby revoke HQ W116730.
FACTS:
CBP paraphrased your description of the knives at issue in HQ
W116730 as follows:
The Outburst mechanism operates via a slight spring action, which assists
in the opening of the knife by application of the finger or thumb
pressure on a thumb stud or disc which protrudes from the side of the
blade, allowing the blade to be more easily pushed to an open and
locked position. The interior of the blade is engineered such that the
spring actually provides resistance, which prevents the knife from opening,
until the blade is opened to approximately a 30-degree angle.
Hence, when incorporated into knives, the Outburst mechanism only
assists in the opening of the knife when the blade is opened to approximately
30-degrees. The user is unable to modify this restriction since at
angles less than 30-degrees, the spring exerts back-pressure which
holds the blade closed. . . . This back-pressure arises from the engineering
of the tempered blade shape and not from the mere tightening of a
blade screw.
Since the Outburst mechanism holds the blade closed, it renders the
tightness of the blade screw irrelevant for purposes of review under the
Switchblade Knife Act. . . .As a secondary level of protection, even if the
main spring of the Outburst mechanism is removed, the locking arm of
the knife itself contains a ball-detent bias against the blade which prevents
the knife from being flicked open by inertia or gravity. The balldetent
bias is also not readily accessible to modification by the user.
BUREAU OF CUSTOMS AND BORDER PROTECTION 33
The knife models subject to this ruling are as follows:
1. The Koji Hara Ichi consists of a drop-point, pen-knife blade, in black
or silver. The body of the knife is built on an open frame with Zytel scale
inserts and fasteners and a removable clip[.]
2. The My Tighe consists of a stainless-steel, utilitarian blade with optional
serrations. The knife includes black Zytel inserts, black hardware
and a black Teflon-plated, removable clip[.]
3. The Kommer Full Throttle consists of a stainless-steel, straight
blade with optional serrations. The knife is built on an open frame with
a flat handle profile[.]
All of the blades are readily identifiable as being designed for personal,
utilitarian use[.]
. . . Such single-handed opening is greatly beneficial to craftsmen,
outdoorsmen and workers, who are engaged in a particular task when
the need to simultaneously make a cut arises. For example, a fisherman
could be holding a fish caught on a fishing line with one hand, while
both drawing and opening an Outburst assisted-opening knife with the
other hand.
A search of the CRKT website (last visited on January 13, 2009) reveals
the following information regarding the ‘‘Outburst’’ mechanism and each of
the models described above: the Koji Hara Ichi is equipped with ‘‘an ambidextrous
thumb disk allows easy one-hand opening,’’ and ‘‘is available in
conventional non-assisted opening models, or with our patented OutBurstTM
assisted opening mechanism, which instantly springs the blade fully open
after you have opened the blade approximately 30 degrees.’’ Descriptions of
the ‘‘My Tighe’’ and ‘‘Kommer Full Throttle’’ models repeat the ‘‘springs the
blade to fully open’’ statement verbatim.
ISSUE:
Whether the subject knives are prohibited from entry into the United
States pursuant to the Switchblade Knife Act, 15 U.S.C. §§ 1241–1245 and
the CBP Regulations promulgated pursuant thereto set forth in 19 CFR
§§ 12.95–12.103.
LAWAND ANALYSIS:
Pursuant to the Act of August 12, 1958 (Pub. L. 85–623, codified at 15
U.S.C. §§ 1241–1245, otherwise known as the ‘‘Switchblade Knife Act’’),
whoever knowingly introduces, or manufactures for introduction, into interstate
commerce, or transports or distributes in interstate commerce, any
switchblade knife, shall be fined or imprisoned, or both.
The Switchblade Knife Act defines ‘‘interstate commerce’’ at 15 U.S.C.
§ 1241(a):
The term ‘‘interstate commerce’’ means commerce between any State,
Territory, possession of the United States, or the District of Columbia,
and any place outside thereof.
The Switchblade Knife Act defines ‘‘switchblade knife’’ at 15 U.S.C.
§ 1241(b):
The term ‘‘switchblade knife’’ means any knife having a blade which
opens automatically--
34 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
(1) by hand pressure applied to a button or other device in the handle of
the knife, or
(2) by operation of inertia, gravity, or both[.]
The CBP Regulations promulgated pursuant to the Switchblade Knife Act
are set forth in 19 CFR §§ 12.95–12.103. We note the following definitions:
§ 12.95 Definitions.
Terms as used in §§ 12.96 through 12.103 of this part are defined as follows:
(a) Switchblade knife. ‘‘Switchblade knife’’ means any imported knife,
or components thereof, or any class of imported knife, including
‘‘switchblade’’, ‘‘Balisong’’, ‘‘butterfly’’, ‘‘gravity’’ or ‘‘ballistic’’ knives,
which has one or more of the following characteristics or identities:
(1) A blade which opens automatically by hand pressure applied to a
button or device in the handle of the knife, or any knife with a blade
which opens automatically by operation of inertia, gravity, or both;
(2) Knives which, by insignificant preliminary preparation, as described
in paragraph (b) of this section, can be altered or converted so
as to open automatically by hand pressure applied to a button or device
in the handle of the knife or by operation of inertia, gravity, or
both;
(3) Unassembled knife kits or knife handles without blades which,
when fully assembled with added blades, springs, or other parts, are
knives which open automatically by hand pressure applied to a button
or device in the handle of the knife or by operation of inertia,
gravity, or both; or
(4) Knives with a detachable blade that is propelled by a springoperated
mechanism, and components thereof[.]
(b) Insignificant preliminary preparation. ‘‘Insignificant preliminary
preparation’’ means preparation with the use of ordinarily available
tools, instruments, devices, and materials by one having no special
manual training or skill for the purpose of modifying blade heels, relieving
binding parts, altering spring restraints, or making similar minor
alterations which can be accomplished in a relatively short period of
time.
Other pertinent regulations are as follows:
§ 12.96 Imports unrestricted under the Act.
(a) Common and special purpose knives. Imported knives with a
blade style designed for a primary utilitarian use, as defined in
§ 12.95(c), shall be admitted to unrestricted entry provided that in
condition as entered the imported knife is not a switchblade knife as
defined in § 12.95(a)(1) [italicized emphasis added] . . .
§ 12.97 Importations contrary to law.
Importations of switchblade knives, except as permitted by 15 U.S.C.
§ 1244, are importations contrary to law and are subject to forfeiture
under 19 U.S.C. § 1595a(c).
BUREAU OF CUSTOMS AND BORDER PROTECTION 35
The plain language of the Switchblade Knife Act and relevant CBP regulations
prohibit, inter alia, the importation of knives which are for use as
weapons while explicitly permitting the importation of ‘‘common and special
purpose’’ knives (see 19 CFR 12.95(c) ‘‘Utilitarian Use’’ and 12.96(a) (‘‘Unrestricted
Imports’’)). Several courts have addressed the breadth of the prohibition
set forth in the statute. See, e.g., Precise Imports Corp. v. Kelly, 378
F.2d 1014, 1017 (2d Cir. 1967), cert. denied, 389 U.S. 973, 19 L. Ed. 2d 465,
88 S. Ct. 472 (1967), in which the Court of Appeals for the Second Circuit
stated that:
The report of the Senate Committee on Interstate and Foreign Commerce
which recommended passage of the Switchblade Knife Act stated
that the enforcement of state laws banning switchblade knives would be
extremely difficult as long as such knives could be freely obtained in interstate
commerce, and added:
‘‘In supporting enactment of this measure, however, your committee
considers that the purpose to be achieved goes beyond merely aiding
States in local law enforcement. The switchblade knife is, by design
and use, almost exclusively the weapon of the thug and the delinquent.
Such knives are not particularly adapted to the requirements
of the hunter or fisherman, and sportsmen generally do not employ
them. It was testified that, practically speaking, there is no legitimate
use for the switchblade to which a conventional sheath or jackknife is
not better suited. This being the case, your committee believes that it
is in the national interest that these articles be banned from interstate
commerce.’’ S.Rep. No. 1980, 85th Cong., 2d Sess., reprinted in 2
U.S. Code Cong. & Ad. News 1958, at 3435–37.
The congressional purpose of aiding the enforcement of state laws
against switchblade knives and of barring them from interstate commerce
could be easily frustrated if knives which can be quickly and
easily made into switchblade knives, and one of whose primary uses
is as weapons, could be freely shipped in interstate commerce and
converted into switchblade knives upon arrival at the state of destination.
We decline to construe the act as permitting such facile evasion.
. . . We hold, therefore, that a knife may be found to be a
switchblade knife within the meaning of the Switchblade Knife Act if
it is found that it can be made to open automatically by hand pressure,
inertia, or gravity after insignificant alterations, and that one of
its primary purposes is for use as a weapon.
In Taylor v. United States, 848 F.2d 715, 717 (6th Cir. 1988) the court, in
describing a Balisong knife stated that:
[T]he district court described a Balisong knife as ‘‘basically a folding
knife with a split handle.’’ It went on to set out its prime use: while the
exotic knife has some utilitarian use, it is most often associated with the
martial arts and with combat . . . [and is] potentially dangerous, lethal
. . . .’’ Citing another district court decision involving the same issue,
Precise Imports Corp. v. Kelly, 378 F.2d 1014 (2d Cir.), cert. denied,
389 U.S. 973, 19 L. Ed. 2d 465, 88 S. Ct. 472 (1967) (upholding a seizure
of certain knives with no legitimate purpose), the district court described
it as of ‘‘minimal value’’ and distinguished another ‘‘seminal case
interpreting the Act’’, United States v. 1,044 Balisong Knives, No. 70–
36 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
110 (D. Ore. Sept. 28, 1970) (refusing to support seizure). The district
court concluded that ‘‘congress intended to prohibit knives that opened
automatically, ready for instant use . . . [and] was not concerned with
whether the knife’s blade would merely be exposed by gravity’’, . . . [it]
intended ‘open’ to mean ‘ready for use.’ ’’ Taylor v. United States, 848
F.2d 715, 717 (6th Cir. 1988).
See also Taylor v. McManus, 661 F. Supp. 11, 14–15 (E.D. Tenn. 1986), in
which the Court of Appeals for the Eastern District of Tennessee observed:
In examining the congressional record, it seems obvious that congress
intended to prohibit knives which opened automatically, ready for instant
use. Rep. Kelly, for example, described the switchblade ‘‘as a
weapon (which) springs out at the slightest touch and is ready for instant
violence.’’ Switchblade Knives: Hearings Before a Subcommittee of
the Committee on Interstate and Foreign Commerce, House of Rep., 85th
Cong., 2d Sess. 13, 29 (1958). She also noted that the prohibited gravity
knife opens and ‘‘anchors in place automatically. Every bit as fast as the
switchblade, it has proved to be as effective a killer.’’ Id. at 29. Similarly,
Rep. Delaney described the prohibited gravity knives as ‘‘knives (which)
open and lock automatically at a quick flick of the wrist.’’ 104 CONG.
REC., 85th Cong., 2nd Sess. 12398 (June 26, 1958). (emphasis supplied).
Apparently, then, Congress was not concerned with whether the
knife’s blade would merely be exposed by gravity. Instead, they intended
‘‘open’’ to mean ‘‘ready for use’’, as exhibited in Rep. Kelley’s testimony
that the switchblade opened ‘‘ready for instant violence’’ and her and
Rep. Delaney’s comments that the gravity knife opened and locked automatically.
While the Court does not intend to read into the Statute a requirement
that the blades ‘‘lock’’ automatically, it does seem apparent
that Congress intended ‘‘open’’ to mean ‘‘ready for use’’. Obviously a
knife that has not locked into an open position is not ready for use.
Since the Balisong knives cannot be used until the second handle is
manually folded back and clasped, the Court finds that they do not open
automatically by force of gravity or inertia.5
Based primarily on 15 U.S.C. § 1241(b)(1) (see also the first clause of 19
CFR Part 12.95(a)(1)) which defines a switchblade knife as being a knife
having a blade which opens automatically by hand pressure applied to a
button or device in the handle of the knife, as well as reliance upon the exception
set forth at 19 CFR Part 12.95(c) regarding knives with a blade style
designed for a primary utilitarian use, CBP decided in several rulings, including
HQ W116730, that knives with spring-assisted opening mechanisms
were not switchblades as contemplated by the Switchblade Knife Act and
implementing regulations.
5The conclusion regarding Balisong knives was reversed by Taylor v. United States, 848
F.2d 715, 1988 U.S. App. LEXIS 7761 (6th Cir. Tenn. 1988): ‘‘There is sufficient indication in
the legislative history that the intent was to exclude these martial arts weapons, which
even the district court admitted ‘‘can be opened very rapidly, perhaps in less than 5
seconds . . . [and] are potentially dangerous, lethal weapons.’’ Id. at 720. Further, Balisongs
were added to the list of prohibited knives when the regulations were amended in 1990. See
the discussion of the regulatory amendments in HQ H030606, dated August 12, 2008, page
4.
BUREAU OF CUSTOMS AND BORDER PROTECTION 37
Notwithstanding, because of the intrinsic health and public safety concerns
underlying the statute and regulations, it is necessary to reassess our
position regarding knives with spring-assisted opening mechanisms as 1)
there are no judicial decisions interpreting, other than in the context of
balisong knives (discussed above), 15 U.S.C. § 1241(b)(2) and the second
clause of 19 Part CFR 12.95(a) (discussed below) and 2) CBP has issued inconsistent
rulings, of which HQ W116730 is one, regarding the issue of
whether knives with spring-assisted opening mechanisms are admissible or
prohibited from importation into the United States.
In Alaska Trojan P’ship v. Gutierrez, 425 F.3d 620, 628 (9th Cir. Alaska
2005), the Court of Appeals for the 9th Circuit stated, with regard to the interpretation
of agency regulations that:
‘‘In ascertaining the plain meaning of [a] statute, the court must look
to the particular statutory language at issue, as well as the language
and design of the statute as a whole.’’ McCarthy v. Bronson, 500 U.S.
136, 139, 114 L. Ed. 2d 194, 111 S. Ct. 1737 (1991) (quoting K Mart
Corp. v. Cartier, Inc., 486 U.S. 281, 291, 100 L. Ed. 2d 313, 108 S. Ct.
1811 (1988)) (alteration in original). When a statute or regulation defines
a term, that definition controls, and the court need not look to the
dictionary or common usage. Compare F.D.I.C. v. Meyer, 510 U.S. 471,
476, 127 L. Ed. 2d 308, 114 S. Ct. 996 (1994) (‘‘In the absence of such a
definition, we construe a statutory term in accordance with its ordinary
or natural meaning.’’). An agency’s interpretation of a regulation must
‘‘conform with the wording and purpose of the regulation.’’ Public Citizen
Inc. v. Mineta, 343 F.3d 1159, 1166 (9th Cir. 2003).
Because of the existence of conflicting rulings (i.e., rulings which have determined
that knives with spring-assisted opening mechanisms are
switchblades as defined in the statute and others which have made the opposite
conclusion), we have reexamined the definition of the word
‘‘switchblade knife’’ set forth at15 U.S.C. § 1241(b) and 19 CFR Part
12.95(a)(1) and have determined that the definition set forth therein captures
and proscribes, in addition to ‘‘traditional’’ switchblades, the importation
of knives with spring-assisted opening mechanisms, often equipped
with thumb studs or protrusions affixed to the base of the blade (rather than
in the handle of the knives as set forth in the first clause of 19 CFR Part
12.95(a)(1)). The relevant regulatory language identifies and defines
‘‘switchblade knives’’ by exemplars (‘‘ ‘‘switchblade’’, ‘‘Balisong’’, ‘‘butterfly’’,
‘‘gravity’’ or ‘‘ballistic’’ knives’’) and by definition (‘‘or any class of imported
knife . . . which has one or more of the following characteristics or identities:
(1) A blade which opens automatically by hand pressure applied to a button
or device in the handle of the knife, or any knife with a blade which opens
automatically by operation of inertia, gravity or both[.]’’)
In reconsidering what types of knives are contemplated by the statute, we
interpret the controlling terms according to their common meanings6. The
6A fundamental canon of statutory construction requires that ‘‘unless otherwise defined,
words will be interpreted as taking their ordinary, contemporary, common meaning.’’ Perrin
v. United States, 444 U.S. 37, 42, 62 L. Ed. 2d 199, 100 S. Ct. 311 (1979); see also 2A Norman
J. Singer, Sutherland Statutory Construction § 46:01 (6th ed. 2000). United States v.
Lehman, 225 F.3d 426, 429 (4th Cir. S.C. 2000).
38 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
term ‘‘automatically’’ is defined at http://www.merriam-webster.com/
dictionary/ automatically as:
1 a: largely or wholly involuntary ; especially : reflex 5 <automatic
blinking of the eyelids> b: acting or done spontaneously or unconsciously
c: done or produced as if by machine : mechanical <the answers
were automatic> 2: having a self-acting or self-regulating mechanism
<an automatic transmission> 3 of a firearm : firing repeatedly until the
trigger is released.
The term ‘‘inertia’’ is defined at http://www.merriam-webster.com/
dictionary/inertia as:
1 a: a property of matter by which it remains at rest or in uniform
motion in the same straight line unless acted upon by some external
force b: an analogous property of other physical quantities (as electricity).
See also, http://physics.about.com/od/glossary/g/inertia.htm: Definition:
Inertia is the name for the tendency of an object in motion to remain
in motion, or an object at rest to remain at rest, unless acted upon
by a force. This concept was quantified in Newton’s First Law of Motion;
and http://dictionary.reference.com/browse/inertia: 2. Physics. a. the
property of matter by which it retains its state of rest or its velocity
along a straight line so long as it is not acted upon by an external force.
In Taylor v. United States, 848 F.2d 715, 720 (6th Cir. Tenn. 1988), the
United States Court of Appeals for the Sixth Circuit, in analyzing the terms
of the statute and regulations at issue stated that:
‘‘Automatically’’ as used in the statute does not necessarily mean simply
by operation of some inanimate connected force such as the spring in
a literal switchblade. For example, the type of gravity or ‘‘flick’’ knife
which is indisputably within the statute requires some human manipulation
in order to create or unleash the force of ‘‘gravity’’ or ‘‘inertia’’
which makes the opening ‘‘automatic.’’
Knives equipped with spring- and release-assisted opening mechanisms
are knives which ‘‘require[ ] some human manipulation in order to create or
unleash the force of ‘‘gravity’’ or ‘‘inertia’’ which makes the opening ‘‘automatic.’’
’’ See Taylor, supra. Despite the fact that they differ in design (most
if not all are equipped with thumb studs affixed to the base of the blunt side
of the blade) from a traditional switchblade (in which the button that activates
the spring mechanism is located in the handle of the knife), the
spring-assisted mechanisms cause the knives to open fully for instant use,
potentially as a weapon. Such knives are prohibited by the Switchblade
Knife Act.
Our interpretation of 15 U.S.C. § 1241(b) and 19 CFR 12.95(a)(1) is supported
by case law. In Demko v. United States, 44 Fed. Cl. 83, 88–89 (Fed.
Cl. 1999), the Court of Federal Claims, in analyzing a regulation regarding
the grandfathered sale of ‘‘street sweeper’’ shotguns, recited the following interpretations
of the word ‘‘or’’ as used in statutes and regulations:
‘‘Generally the term ‘or’ functions grammatically as a coordinating conjunction
and joins two separate parts of a sentence.’’ Ruben v. Secretary
of DHHS, 22 Cl. Ct. 264, 266 (1991) (noting that ‘‘or’’ is generally ascribed
disjunctive intent unless contrary to legislative intent). As a disjunctive,
the word ‘‘or’’ connects two parts of a sentence, ‘‘but discon-
BUREAU OF CUSTOMS AND BORDER PROTECTION 39
nect[s] their meaning, the meaning in the second member excluding
that in the first.’’ Id. (quoting G. Curme, A Grammar of the English Language,
Syntax 166 (1986)); see Quindlen v. Prudential Ins. Co., 482 F.2d
876, 878 (5th Cir. 1973) (noting disjunctive results in alternatives,
which must be treated separately). Nonetheless, courts have not adhered
strictly to such rules of statutory construction. See Ruben, 22 Cl.
Ct. at 266. For instance, ‘‘it is settled that ‘or’ may be read to mean ‘and’
when the context so indicates.’’ Willis v. United States, 719 F.2d 608, 612
(2d Cir. 1983); see Ruben, 22 Cl. Ct. at 266 (quoting same); see also
DeSylva v. Ballentine, 351 U.S. 570, 573, 100 L. Ed. 1415, 76 S. Ct. 974
(1956) (‘‘We start with the proposition that the word ‘or’ is often used as
a careless substitute for the word ‘and’; that is, it is often used in
phrases where ‘and’ would express the thought with greater clarity.’’);
Union Ins. Co. v. United States, 73 U.S. 759, 764, 18 L. Ed. 879 (1867)
(‘‘But when we look beyond the mere words to the obvious intent we
cannot help seeing the word ‘or’ must be taken conjunctively. . . . This
construction impairs no rights of the parties . . . and carries into effect
the true intention of Congress. . . .’’).
In analyzing the language of 15 U.S.C. § 1241(b) and 19 CFR Part
12.95(a)(1), we conclude that the word ‘‘or’’ is used conjunctively yet distinguishes
the paradigm switchblade knife (paraphrased: spring action blade
with a button in the handle) from other knives which function similarly to
the paradigm switchblade but do not have the ‘‘traditional’’ configuration or
function. Given its legislative and judicial history, the Switchblade Knife Act
is intended to proscribe the importation of any knife that opens automatically
by hand pressure applied to a button or device in the handle of the
knife and any knife with a blade which opens automatically by operation of
inertia, gravity or both.
The knives at issue open via inertia – once pressure is applied to the
thumb stud (or protrusion at the base of the blade), the blade continues in
inertial motion (caused by the combined effect of manual and springassisted
pressure) until it is stopped by the locking mechanism of the knife.
Such knives open instantly for potential use as a weapon. We therefore conclude,
in consideration of the authorities and sources Switchblade Knife Act
and implementing regulations, that the knives with spring-and release- assisted
opening mechanisms, that such knives are described and prohibited
by 15 U.S.C. § 1241(b)(2) and 19 CFR Part 12.95(a)(1).
We also have reconsidered our interpretation of the terms ‘‘utilitarian
use’’, as we have in several rulings found knives with spring-assisted opening
mechanisms to be admissible because they were equipped with blades
for ‘‘utilitarian use’’. The regulation defines, albeit by exemplar, the types of
knife (subject to the condition precedent set forth in 19 CFR 12.96: Imported
knives with a blade style designed for a primary utilitarian use, as defined
in § 12.95(c), shall be admitted to unrestricted entry provided that in condition
as entered the imported knife is not a switchblade knife as defined in
§ 12.95(a)(1) [italicized emphasis added] . . .) that are considered to be
‘‘utilitarian’’ for purposes of the statute. See 19 CFR 12.95(c):
(c) Utilitarian use. ‘‘Utilitarian use’’ includes but is not necessarily limited
to use:
(1) For a customary household purpose;
(2) For usual personal convenience, including grooming;
40 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
(3) In the practice of a profession, trade, or commercial or employment
activity;
(4) In the performance of a craft or hobby;
(5) In the course of such outdoor pursuits as hunting and fishing; and
(6) In scouting activities.
As we stated in HQ H030606, dated August 12, 2008, with regard to the
regulations implementing the Switchblade Knife Act:
The relevant CBP regulations were implemented in 1971, following
notice and comment, via Treasury Decision (‘‘T.D.’’) 71–243, and the Final
Rule was published in the Federal Register on September 13, 1971.
See Final Rule, 36 FR 18859, Sept. 23, 1971. HQ H030606 at page 3.
The notice of proposed rulemaking, published in the Federal Register on
October 24, 1970, set forth ‘‘[t]he proposed regulations . . . in tentative form
as follows’’:
(a) Definitions. As used in this section the term ‘‘switchblade knife’’
means any imported knife-
(1) Having a blade which opens automatically by hand pressure applied
to a button or device in the handle of the knife or by operation of
inertia, gravity, or both; or
(2) Having a handle over 3 inches in length with a stiletto or other
blade style which is designed for purposes that include a primary use as
a weapon, as contrasted with blade styles designed for a primary utilitarian
use, when, by insignificant preliminary preparation a Customs
officer can alter or convert such stiletto or other weapon to open automatically
as described in subparagraph (1) of this paragraph, under the
principle of the decision in the case of ‘‘Precise Imports Corporation and
Others v. Joseph P. Kelly, Collector of Customs, and Others’’ (378 F. 2d
1014). The term ‘‘utilitarian use’’ means use for any customary household
purpose; use for any usual personal convenience; use in the practice of a
profession, trade, or commercial or employment activity; use in the performance
of a craft or hobby; use, in the course of such outdoor pursuits
as hunting and fishing; use related to scouting activities; and use for
grooming, as demonstrated by jack-knives and similar standard pocket
knives, special purpose knives, scout knives, and other knives equipped
with one or more blades of such single edge nonweapon styles as clip,
skinner, pruner, sheep foot, spey, coping, razor, pen, and cuticle [italicized
emphasis added]. 35 FR 16594.
The introductory language to the Final Rule made the following prefatory
declarations:
On October 24, 1970, notice was published in the Federal Register (35
FR 16594) of a proposal to prescribe regulations to govern the importation
of articles subject to the so-called Switchblade Knife Act, sections
1 – 4, 72 Stat. 562 (15 U.S.C. 1241 – 1244).
Importers or other interested persons were given the opportunity to
participate in the rule making through submission of relevant comments,
suggestions or objections. No comments were received from importers
or other persons. 36 FR 18859.
BUREAU OF CUSTOMS AND BORDER PROTECTION 41
CBP announced its proposed intention to amend the regulations via Federal
Register notice on August 18, 1989. See 54 FR 34186 of the same date.
In the introductory ‘‘Background’’ in the proposed rule, CBP (then ‘‘Customs’’)
emphasized the characteristics that would be considered in making
determinations regarding the types of blades knives bore which would be
proscribed by the Switchblade Knife Act and implementing regulations, stating
that:
To implement the law, Customs adopted regulations which followed the
legislative language extremely closely (19 CFR 12.95–12.103). Those
regulations also specifically referred to the court decision of Precise Imports
Corp. and Others v. Joseph P. Kelly, Collector of Customs, and Others
(378 F. 2d 1014). Because of this reference, the existing regulations
appear to imply that one of the principal considerations in determining
the legality of a knife is the type of blade style the weapon possesses.
While style is relevant, it is not of overriding importance. Concealability,
and the ease with which the knife can be transformed from a ‘‘safe’’ or
‘‘closed’’ condition to an ‘‘operational’’ or ‘‘open’’ state are much more important.
The Customs position, which has been supported by court decisions,
is that Congressional intent was to address the problem of the importation,
subsequent sale, and use of a class of quick-opening, easily
concealed knives most frequently used for criminal purposes. The deletion
of the reference to the Precise Imports case does not imply that customs
does not consider the principles contained in that case important,
or that they are in any way no longer relevant. Rather, the principles in
the Precise Imports case could not be considered too limiting [italicized
emphasis added]. 54 FR 34186
There is no reference in the statutory language of the Switchblade Knife
Act to the term ‘‘utilitarian use’’; the only references appear in the CBP
regulations. Similarly, the term has received only passing reference judicially
(‘‘The government indicated that had the knives been ’’designed with a
single-edge blade and were primarily used for utilitarian purposes‘‘ rather
than ’’double-edged stiletto-style blades‘‘ they would have been admitted.’’
Taylor v. United States, 848 F.2d 715, 720 (6th Cir. Tenn. 1988)) and in the
Federal Register notices cited above. Therefore, against the explanatory language
from the Federal Register notices set forth above, we consider the ordinary
meaning of the words employed:
The term ‘‘utilitarian’’ is defined at http://dictionary.reference.com/
search?q =utilitarian as:
1. pertaining to or consisting in utility.
2. having regard to utility or usefulness rather than beauty, ornamentation,
etc.
And at the same site:
1. having a useful function; ‘‘utilitarian steel tables’’.
2. having utility often to the exclusion of values; ‘‘plain utilitarian
kitchenware’’.
The term ‘‘utility’’ is defined at http://www.merriam-webster.com/
dictionary/utility as:
1: fitness for some purpose or worth to some end.
42 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
2: something useful or designed for use.
From the exemplars set forth in 19 CFR Part 12.95(c)7, and definitions set
forth above we conclude that knives with a primary (constructively or practically
vs. tactically, lethally or primarily as a weapon) utilitarian design and
purpose that are not captured by the definition of switchblades are admissible
pursuant to the Switchblade Knife Act. Thus, for example, pocketknives,
tradesman’s knives and other folding knives for a certain specific use
remain generally admissible, with such determinations being made, by necessity,
on a case-by-case basis. Further, the opening mechanisms of imported
knives must be considered and those that open instantly subjected to
strict scrutiny in order to determine admissibility. As we found in HQs
W479898, dated June 29, 2007 and H017909 dated December 26, 2007, that
‘‘all knives can potentially be used as weapons’’; likewise the blades of all
knives have some utility. Therefore, consideration of the characteristics of
the knives should be made, focused on those emphasized (‘‘Concealability,
and the ease with which the knife can be transformed from a ’’safe‘‘ or
’’closed‘‘ condition to an ’’operational‘‘ or ’’open‘‘ state . . . ’’) in the Federal
Register notice amending the regulations at issue. Thus, given the clear purpose
enunciated during the notice and comment rulemaking process which
amended the relevant regulation, we conclude that the type of opening
mechanism is ‘‘much more important’’ than blade style in making admissibility
determinations under the Switchblade Knife Act (see 54 FR 34186,
supra).
We therefore find that knives with spring-assisted opening mechanisms
that require minimal ‘‘human manipulation’’ in order to instantly spring the
blades to the fully open and locked position cannot be considered to have a
primary utilitarian purpose; such articles function as prohibited switchblade
knives as defined by the relevant statute and regulations.
In reaching this conclusion, we reexamined the sample provided. We note
that other than a bald assertion that the knives at issue are for a primary
utilitarian purpose (you state that ‘‘[a]ll of the blades are readily identifiable
as being designed for personal, utilitarian use[.]’’), no evidence substantiating
that claim was presented. The knife at issue can be instantly opened
into the fully locked and ready position with one hand8, simply by pushing
on either of the thumb tabs. Although the knife is marketed as a ‘‘releaseassist’’
model, it nevertheless opens via human manipulation and inertia.
See Taylor, supra at footnote 1 on page 6. Further, it is possible to ‘‘lock’’ the
safety of the knife, adjust the blade (by pushing it ‘‘against’’ the safety button)
and to instantly deploy it in a manner indiscernible from a ‘‘traditional’’
switchblade (and in a manner which can be considered to be insignificant
preliminary preparation; see 19 CFR 12.95(b), above). It is based upon this
analysis and these factual observations that we conclude that the knife at
issue is a switchblade prohibited from importation into the United States.
This decision is necessary to reconcile CBP’s position regarding the admis-
7See also 19 CFR Part 12.96(a): Among admissible common and special purpose knives
are jackknives and similar standard pocketknives, special purpose knives, scout knives,
and other knives equipped with one or more blades of such single edge nonweapon styles as
clip, skinner, pruner, sheep foot, spey, coping, razor, pen, and cuticle.
8See the marketing statements from the CRKT website in the ’’FACTS‘‘ section above.
BUREAU OF CUSTOMS AND BORDER PROTECTION 43
sibility of such knives and comports with the conclusions made in the following
rulings:
In New York Ruling Letter (‘‘NY’’) G83213, dated October 13, 2000, CBP
determined that ‘‘a folding knife with a spring-loaded blade [which could] be
easily opened by light pressure on a thumb knob located at the base of the
blade, or by a flick of the wrist’’ was an ‘‘inertia-operated knife’’ that ‘‘is prohibited
under the Switchblade Act and subject to seizure. See 19 C.F.R.
§12.95 (a)(1).’’
In NY H81084, dated May 23, 2001, CBP determined that 18 models of
knives ‘‘may be opened with a simple flick of the wrist, and therefore are
prohibited as inertial operated knives.’’
In HQ 115725, dated July 22, 2002, CBP determined that a ‘‘dual-blade
folding knife’’ in which the ‘‘non-serrated blade is spring-assisted [and] is
opened fully by the action of the spring after the user has pushed the
thumb-knob protruding from the base of the blade near the handle to approximately
45 degrees from the handle’’ ‘‘is clearly a switchblade as defined
in § 12.95(a)(4) (Knives with a detachable blade that is propelled by a
spring-operated mechanism and components thereof.)’’
In HQ 115713, dated July 29, 2002, CBP determined that four styles of
knives, three of which could ‘‘be opened by the application of finger or thumb
pressure against one of the aforementioned studs that protrudes from the
side of the blade which activates a spring mechanism automatically propelling
the blade into a fully open and locked position[,]’’ and the fourth which
‘‘opened by depressing a bar-like release on the handle which, when pushed,
releases the blade which is then partially opened by a spring mechanism’’
were switchblades pursuant to the Switchblade Knife Act and pertinent
regulations, prohibited from entry into the United States.
In H040319, dated November 26, 2008, we held that knives with springassisted
opening mechanisms are ‘‘switchblades’’ within the meaning of 19
CFR Part 12.95(a)(1) and are therefore prohibited entry into the United
States pursuant to the Switchblade Knife Act (15 U.S.C. §§ 1241–1245).
In turning to the knives at issue in HQ W116730, examination of the description
of the ‘‘OutBurst’’ release mechanism and application of the regulatory
criteria set forth above reveals that the subject knives are switchblades
within the meaning of 15 U.S.C. § 1241(b)(2) and 19 CFR Part 12.95(a)(1)
because they meet the criteria enumerated therein, i.e., they open automatically
by operation of inertia, gravity, or both.
HOLDING:
HQ W116730 is hereby revoked.
The subject knives, equipped with the ‘‘OutBurst’’ release-assist mechanism,
are switchblade knives within the meaning of 15 U.S.C. § 1241(b) and
19 CFR Part 12.95(a)(1). Therefore, pursuant to the Switchblade Knife Act,
15 U.S.C. §§ 1241–1245, the subject knives are prohibited from entry into
the United States.
GEORGE FREDERICK MCCRAY,
Chief,
Intellectual Property Rights and,
Restricted Merchandise Branch.
r
44 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
[ATTACHMENT G]
DEPARTMENT OF HOMELAND SECURITY.
U.S. CUSTOMS AND BORDER PROTECTION,
HQ H043126
April 30, 2009
ENF–4–02–OT:RR:BSTC:IPR H043126 AML
CATEGORY: Restricted Merchandise
MS. LARA A. AUSTRINS
MR. THOMAS J. O’DONNELL
RODRIGUEZ, O’DONNELL ROSS
8430 W. Bryn Mawr Ave., Suite 525
Chicago, Illinois 60631
RE: Revocation of HQ H016666; Admissibility of Knives; Switchblade Knife
Act, 15 U.S.C. §§ 1241–1245; 19 CFR Parts 12.95–12.103
DEAR MS. AUSTRINS AND MR. O’DONNELL:
This is in reference to Headquarters Ruling Letter (‘‘HQ’’) H016666, dated
December 12, 2007, which concerned the admissibility of the ‘‘Tailwind’’, a
‘‘release-assisted ’’ knife described below, pursuant to the Switchblade Knife
Act, 15 U.S.C. § 1241, et seq. In the referenced ruling, U.S. Customs and
Border Protection (hereinafter ‘‘CBP’’) determined that the knives at issue
were admissible into the United States pursuant to the Switchblade Knife
Act. We have reconsidered HQ H016666 and the rulings upon which it relied
and found it and them to be in error. For the reasons set forth below, we
hereby revoke HQ H016666.
FACTS:
CBP paraphrased your description of the knives at issue in HQ
H016666 as follows:
[T]he knife at issue, marketed as the ‘‘Tailwind’’ (model number
HD0071), as a single edged, release assisted, folding knife. The knife
has a ‘‘false edge grind’’ on the topside of the 3 1⁄2 inch blade and measures
4 1⁄2 inches when closed. When extended, the overall length of the
knife is 7 3⁄4 inches. The knife weighs 4.2 ounces.
The Tailwind name is derived from the patented opening mechanism.
The opening mechanism, subject of U.S. Patent number 7,051,441, is
equipped ‘‘with an assist spring, which assists in the opening of the
knife only after the knife has been manually opened to approximately
thirty degrees.’’ The blade must be opened manually until the blade
reaches approximately thirty degrees at which point the mechanism engages
and the blade springs open to its extended and locked position.
The knife is refolded by depressing a manual release.
With regard to the blade of the knife, you indicated that:
The knife’s blade is such that it is designed for a primary utilitarian use
and the intended customer base for the knife is wide and varied.
BUREAU OF CUSTOMS AND BORDER PROTECTION 45
ISSUE:
Whether the subject knives are prohibited from entry into the United
States pursuant to the Switchblade Knife Act, 15 U.S.C. §§ 1241–1245 and
the CBP Regulations promulgated pursuant thereto set forth in 19 CFR
§§ 12.95–12.103.
LAWAND ANALYSIS:
Pursuant to the Act of August 12, 1958 (Pub. L. 85–623, codified at 15
U.S.C. §§ 1241–1245, otherwise known as the ‘‘Switchblade Knife Act’’),
whoever knowingly introduces, or manufactures for introduction, into interstate
commerce, or transports or distributes in interstate commerce, any
switchblade knife, shall be fined or imprisoned, or both.
The Switchblade Knife Act defines ‘‘interstate commerce’’ at 15 U.S.C.
§ 1241(a):
The term ‘‘interstate commerce’’ means commerce between any State,
Territory, possession of the United States, or the District of Columbia,
and any place outside thereof.
The Switchblade Knife Act defines ‘‘switchblade knife’’ at 15 U.S.C.
§ 1241(b):
The term ‘‘switchblade knife’’ means any knife having a blade which
opens automatically—
(1) by hand pressure applied to a button or other device in the handle of
the knife, or
(2) by operation of inertia, gravity, or both[.]
The CBP Regulations promulgated pursuant to the Switchblade Knife Act
are set forth in 19 CFR §§ 12.95–12.103. We note the following definitions:
§ 12.95 Definitions.
Terms as used in §§12.96 through 12.103 of this part are defined as follows:
(a) Switchblade knife. ‘‘Switchblade knife’’ means any imported knife,
or components thereof, or any class of imported knife, including
‘‘switchblade’’, ‘‘Balisong’’, ‘‘butterfly’’, ‘‘gravity’’ or ‘‘ballistic’’ knives,
which has one or more of the following characteristics or identities:
(1) A blade which opens automatically by hand pressure applied to a
button or device in the handle of the knife, or any knife with a blade
which opens automatically by operation of inertia, gravity, or both;
(2) Knives which, by insignificant preliminary preparation, as described
in paragraph (b) of this section, can be altered or converted so
as to open automatically by hand pressure applied to a button or device
in the handle of the knife or by operation of inertia, gravity, or
both;
(3) Unassembled knife kits or knife handles without blades which,
when fully assembled with added blades, springs, or other parts, are
knives which open automatically by hand pressure applied to a button
or device in the handle of the knife or by operation of inertia,
gravity, or both; or
46 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
(4) Knives with a detachable blade that is propelled by a springoperated
mechanism, and components thereof[.]
(b) Insignificant preliminary preparation. ‘‘Insignificant preliminary
preparation’’ means preparation with the use of ordinarily available
tools, instruments, devices, and materials by one having no special
manual training or skill for the purpose of modifying blade heels, relieving
binding parts, altering spring restraints, or making similar minor
alterations which can be accomplished in a relatively short period of
time.
Other pertinent regulations are as follows:
§ 12.96 Imports unrestricted under the Act.
(a) Common and special purpose knives. Imported knives with a
blade style designed for a primary utilitarian use, as defined in
§ 12.95(c), shall be admitted to unrestricted entry provided that in
condition as entered the imported knife is not a switchblade knife as
defined in § 12.95(a)(1) [italicized emphasis added] . . .
§ 12.97 Importations contrary to law.
Importations of switchblade knives, except as permitted by 15 U.S.C.
§ 1244, are importations contrary to law and are subject to forfeiture
under 19 U.S.C. § 1595a(c).
The plain language of the Switchblade Knife Act and relevant CBP regulations
prohibit, inter alia, the importation of knives which are for use as
weapons while explicitly permitting the importation of ‘‘common and special
purpose’’ knives (see 19 CFR 12.95(c) ‘‘Utilitarian Use’’ and 12.96(a) (‘‘unrestricted
imports’’)). Several courts have addressed the breadth of the prohibition
set forth in the statute. See, e.g., Precise Imports Corp. v. Kelly, 378
F.2d 1014, 1017 (2d Cir. 1967), cert. denied, 389 U.S. 973, 19 L. Ed. 2d 465,
88 S. Ct. 472 (1967), in which the Court of Appeals for the Second Circuit
stated that:
The report of the Senate Committee on Interstate and Foreign Commerce
which recommended passage of the Switchblade Knife Act stated
that the enforcement of state laws banning switchblade knives would be
extremely difficult as long as such knives could be freely obtained in interstate
commerce, and added:
‘‘In supporting enactment of this measure, however, your committee
considers that the purpose to be achieved goes beyond merely aiding
States in local law enforcement. The switchblade knife is, by design
and use, almost exclusively the weapon of the thug and the delinquent.
Such knives are not particularly adapted to the requirements
of the hunter or fisherman, and sportsmen generally do not employ
them. It was testified that, practically speaking, there is no legitimate
use for the switchblade to which a conventional sheath or jackknife is
not better suited. This being the case, your committee believes that it
is in the national interest that these articles be banned from interstate
commerce.’’ S.Rep. No. 1980, 85th Cong., 2d Sess., reprinted in 2
U.S. Code Cong. & Ad. News 1958, at 3435–37.
The congressional purpose of aiding the enforcement of state laws
against switchblade knives and of barring them from interstate com-
BUREAU OF CUSTOMS AND BORDER PROTECTION 47
merce could be easily frustrated if knives which can be quickly and easily
made into switchblade knives, and one of whose primary uses is as
weapons, could be freely shipped in interstate commerce and converted
into switchblade knives upon arrival at the state of destination. We decline
to construe the act as permitting such facile evasion.
. . . We hold, therefore, that a knife may be found to be a switchblade
knife within the meaning of the Switchblade Knife Act if it is found that
it can be made to open automatically by hand pressure, inertia, or gravity
after insignificant alterations, and that one of its primary purposes
is for use as a weapon.
In Taylor v. United States, 848 F.2d 715, 717 (6th Cir. 1988) the court, in
describing a Balisong knife stated that:
[T]he district court described a Balisong knife as ‘‘basically a folding
knife with a split handle.’’ It went on to set out its prime use: while the
exotic knife has some utilitarian use, it is most often associated with the
martial arts and with combat . . . [and is] potentially dangerous, lethal.
. . .’’ Citing another district court decision involving the same issue,
Precise Imports Corp. v. Kelly, 378 F.2d 1014 (2d Cir.), cert. denied, 389
U.S. 973, 19 L. Ed. 2d 465, 88 S. Ct. 472 (1967) (upholding a seizure of
certain knives with no legitimate purpose), the district court described
it as of ‘‘minimal value’’ and distinguished another ‘‘seminal case interpreting
the Act’’, United States v. 1,044 Balisong Knives, No. 70–110 (D.
Ore. Sept. 28, 1970) (refusing to support seizure). The district court concluded
that ‘‘congress intended to prohibit knives that opened automatically,
ready for instant use . . . [and] was not concerned with whether
the knife’s blade would merely be exposed by gravity’’, . . . [it] intended
‘open’ to mean ‘ready for use.’ ’’ Taylor v. United States, 848 F.2d 715,
717 (6th Cir. 1988).
See also Taylor v. McManus, 661 F. Supp. 11, 14–15 (E.D. Tenn. 1986), in
which the Court of Appeals for the Eastern District of Tennessee observed:
In examining the congressional record, it seems obvious that congress
intended to prohibit knives which opened automatically, ready for instant
use. Rep. Kelly, for example, described the switchblade ‘‘as a
weapon (which) springs out at the slightest touch and is ready for instant
violence.’’ Switchblade Knives: Hearings Before a Subcommittee of
the Committee on Interstate and Foreign Commerce, House of Rep., 85th
Cong., 2d Sess. 13, 29 (1958). She also noted that the prohibited gravity
knife opens and ‘‘anchors in place automatically. Every bit as fast as the
switchblade, it has proved to be as effective a killer.’’ Id. at 29. Similarly,
Rep. Delaney described the prohibited gravity knives as ‘‘knives (which)
open and lock automatically at a quick flick of the wrist.’’ 104 CONG.
REC., 85th Cong., 2nd Sess. 12398 (June 26, 1958). (emphasis supplied).
Apparently, then, Congress was not concerned with whether the
knife’s blade would merely be exposed by gravity. Instead, they intended
‘‘open’’ to mean ‘‘ready for use’’, as exhibited in Rep. Kelley’s testimony
that the switchblade opened ‘‘ready for instant violence’’ and her and
Rep. Delaney’s comments that the gravity knife opened and locked automatically.
While the Court does not intend to read into the Statute a requirement
that the blades ‘‘lock’’ automatically, it does seem apparent
that Congress intended ‘‘open’’ to mean ‘‘ready for use’’. Obviously a
knife that has not locked into an open position is not ready for use.
48 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
Since the Balisong knives cannot be used until the second handle is
manually folded back and clasped, the Court finds that they do not open
automatically by force of gravity or inertia.9
Based primarily on 15 U.S.C. § 1241(b)(1) (see also the first clause of 19
CFR Part 12.95(a)(1)) which defines a switchblade knife as being a knife
having a blade which opens automatically by hand pressure applied to a
button or device in the handle, as well as reliance upon the exception set
forth at 19 CFR Part 12.95(c) regarding knives with a blade style designed
for a primary utilitarian use, CBP decided in several rulings, including HQ
H016666, that knives with spring- and release-assisted opening mechanisms
are not switchblades as contemplated by the Switchblade Knife Act
and implementing regulations.
Notwithstanding, because of the intrinsic health and public safety concerns
underlying the statute and regulations, it is necessary to reassess our
position regarding knives with spring-assisted opening mechanisms as 1)
there are no judicial decisions interpreting, other than in the context of
balisong knives (discussed above), 15 U.S.C. § 1241(b)(2) and the second
clause of 19 Part CFR 12.95(a) (discussed below) and 2) CBP has issued inconsistent
rulings, of which HQ H016666 is one, regarding the issue of
whether knives with spring-assisted opening mechanisms are admissible or
prohibited from importation into the United States.
In Alaska Trojan P’ship v. Gutierrez, 425 F.3d 620, 628 (9th Cir. Alaska
2005), the Court of Appeals for the 9th Circuit stated, with regard to the interpretation
of agency regulations that:
‘‘In ascertaining the plain meaning of [a] statute, the court must look
to the particular statutory language at issue, as well as the language
and design of the statute as a whole.’’ McCarthy v. Bronson, 500 U.S.
136, 139, 114 L. Ed. 2d 194, 111 S. Ct. 1737 (1991) (quoting K Mart
Corp. v. Cartier, Inc., 486 U.S. 281, 291, 100 L. Ed. 2d 313, 108 S. Ct.
1811 (1988)) (alteration in original). When a statute or regulation defines
a term, that definition controls, and the court need not look to the
dictionary or common usage. Compare F.D.I.C. v. Meyer, 510 U.S. 471,
476, 127 L. Ed. 2d 308, 114 S. Ct. 996 (1994) (‘‘In the absence of such a
definition, we construe a statutory term in accordance with its ordinary
or natural meaning.’’). An agency’s interpretation of a regulation must
‘‘conform with the wording and purpose of the regulation.’’ Public Citizen
Inc. v. Mineta, 343 F.3d 1159, 1166 (9th Cir. 2003).
Because of the existence of conflicting rulings (i.e., rulings which have determined
that knives with spring-assisted opening mechanisms are
switchblades as defined in the statute and others which have made the opposite
conclusion), we have reexamined the definition of the word
‘‘switchblade knife’’ set forth at 15 U.S.C. § 1241(b) and 19 CFR Part
9The conclusion regarding Balisong knives was reversed by Taylor v. United States, 848
F.2d 715, 1988 U.S. App. LEXIS 7761 (6th Cir. Tenn. 1988): ’’There is sufficient indication in
the legislative history that the intent was to exclude these martial arts weapons, which
even the district court admitted ‘‘can be opened very rapidly, perhaps in less than 5
seconds . . . [and] are potentially dangerous, lethal weapons.’’ Id. at 720. Further, Balisongs
were added to the list of prohibited knives when the regulations were amended in 1990. See
the discussion of the regulatory amendments in HQ H030606, dated August 12, 2008, page
4.
BUREAU OF CUSTOMS AND BORDER PROTECTION 49
12.95(a)(1) and have determined that the definition set forth therein captures
and proscribes, in addition to ‘‘traditional’’ switchblades, the importation
of knives with spring-assisted opening mechanisms, often equipped
with thumb studs or protrusions affixed to the base of the blade (rather than
in the handle of the knives as set forth in the first clause of 19 CFR Part
12.95(a)(1)). The relevant regulatory language identifies and defines
‘‘switchblade knives’’ by exemplars (‘‘ ‘‘switchblade’’, ‘‘Balisong’’, ‘‘butterfly’’,
‘‘gravity’’ or ‘‘ballistic’’ knives’’) and by definition (‘‘or any class of imported
knife . . . which has one or more of the following characteristics or identities:
(1) A blade which opens automatically by hand pressure applied to a button
or device in the handle of the knife, or any knife with a blade which opens
automatically by operation of inertia, gravity or both[.]’’)
In reconsidering what types of knives are contemplated by the statute, we
interpret the controlling terms according to their common meanings10. The
term ‘‘automatically’’ is defined at http://www.merriam-webster.com/
dictionary/ automatically as:
1 a: largely or wholly involuntary ; especially : reflex 5 <automatic
blinking of the eyelids> b: acting or done spontaneously or unconsciously
c: done or produced as if by machine : mechanical <the answers
were automatic> 2: having a self-acting or self-regulating mechanism
<an automatic transmission> 3of a firearm : firing repeatedly until the
trigger is released.
The term ‘‘inertia’’ is defined at http://www.merriam-webster.com/
dictionary/inertia as:
1 a: a property of matter by which it remains at rest or in uniform motion
in the same straight line unless acted upon by some external force
b: an analogous property of other physical quantities (as electricity).
See also, http://physics.about.com/od/glossary/g/inertia.htm: Definition:
Inertia is the name for the tendency of an object in motion to remain
in motion, or an object at rest to remain at rest, unless acted upon
by a force. This concept was quantified in Newton’s First Law of Motion;
and http://dictionary.reference.com/browse/ inertia: 2. Physics. a. the
property of matter by which it retains its state of rest or its velocity
along a straight line so long as it is not acted upon by an external force.
In Taylor v. United States, 848 F.2d 715, 720 (6th Cir. Tenn. 1988), the
United States Court of Appeals for the Sixth Circuit, in analyzing the terms
of the statute and regulations at issue stated that:
‘‘Automatically’’ as used in the statute does not necessarily mean simply
by operation of some inanimate connected force such as the spring in
a literal switchblade. For example, the type of gravity or ‘‘flick’’ knife
which is indisputably within the statute requires some human manipulation
in order to create or unleash the force of ‘‘gravity’’ or ‘‘inertia’’
which makes the opening ‘‘automatic.’’
10A fundamental canon of statutory construction requires that ‘‘unless otherwise defined,
words will be interpreted as taking their ordinary, contemporary, common meaning.’’
Perrin v. United States, 444 U.S. 37, 42, 62 L. Ed. 2d 199, 100 S. Ct. 311 (1979); see also 2A
Norman J. Singer, Sutherland Statutory Construction § 46:01 (6th ed. 2000). United States
v. Lehman, 225 F.3d 426, 429 (4th Cir. S.C. 2000).
50 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
Knives equipped with spring- and release-assisted opening mechanisms
are knives which ‘‘require[ ] some human manipulation in order to create or
unleash the force of ‘‘gravity’’ or ‘‘inertia’’ which makes the opening ‘‘automatic.’’
’’ See Taylor, supra. Despite the fact that they differ in design (most
if not all are equipped with thumb studs affixed to the base of the blunt side
of the blade) from a traditional switchblade (in which the button that activates
the spring mechanism is located in the handle of the knife), the
spring-assisted mechanisms cause, via inertia, the knives to open fully for
instant use, potentially as a weapon. Such knives are prohibited by the
Switchblade Knife Act.
Our interpretation of 15 U.S.C. § 1241(b) and 19 CFR 12.95(a)(1) is supported
by case law. In Demko v. United States, 44 Fed. Cl. 83, 88–89 (Fed.
Cl. 1999), the Court of Federal Claims, in analyzing a regulation regarding
the grandfathered sale of ‘‘street sweeper’’ shotguns, recited the following interpretations
of the word ‘‘or’’ as used in statutes and regulations:
‘‘Generally the term ‘or’ functions grammatically as a coordinating
conjunction and joins two separate parts of a sentence.’’ Ruben v. Secretary
of DHHS, 22 Cl. Ct. 264, 266 (1991) (noting that ‘‘or’’ is generally
ascribed disjunctive intent unless contrary to legislative intent). As a
disjunctive, the word ‘‘or’’ connects two parts of a sentence, ‘‘but disconnect[
s] their meaning, the meaning in the second member excluding
that in the first.’’ Id. (quoting G. Curme, A Grammar of the English Language,
Syntax 166 (1986)); see Quindlen v. Prudential Ins. Co., 482 F.2d
876, 878 (5th Cir. 1973) (noting disjunctive results in alternatives,
which must be treated separately). Nonetheless, courts have not adhered
strictly to such rules of statutory construction. See Ruben, 22 Cl.
Ct. at 266. For instance, ‘‘it is settled that ‘or’ may be read to mean ‘and’
when the context so indicates.’’Willis v. United States, 719 F.2d 608, 612
(2d Cir. 1983); see Ruben, 22 Cl. Ct. at 266 (quoting same); see also
DeSylva v. Ballentine, 351 U.S. 570, 573, 100 L. Ed. 1415, 76 S. Ct. 974
(1956) (‘‘We start with the proposition that the word ‘or’ is often used as
a careless substitute for the word ‘and’; that is, it is often used in
phrases where ‘and’ would express the thought with greater clarity.’’);
Union Ins. Co. v. United States, 73 U.S. 759, 764, 18 L. Ed. 879 (1867)
(‘‘But when we look beyond the mere words to the obvious intent we
cannot help seeing the word ‘or’ must be taken conjunctively. . . . This
construction impairs no rights of the parties . . . and carries into effect
the true intention of Congress. . . .’’).
In analyzing the language of 15 U.S.C. § 1241(b) and 19 CFR Part
12.95(a)(1), we conclude that the word ‘‘or’’ is used conjunctively yet distinguishes
the paradigm switchblade knife (paraphrased: spring action blade
with a button in the handle) from other knives which function similarly to
the paradigm switchblade but do not have the ‘‘traditional’’ configuration or
function. Given its legislative and judicial history, the Switchblade Knife Act
is intended to proscribe the importation of any knife that opens automatically
by hand pressure applied to a button or device in the handle of the
knife and any knife with a blade which opens automatically by operation of
inertia, gravity or both.
The knives at issue open via inertia – once pressure is applied to the
thumb stud (or protrusion at the base of the blade), the blade continues in
inertial motion (caused by the combined effect of manual and spring-
BUREAU OF CUSTOMS AND BORDER PROTECTION 51
assisted pressure) until it is stopped by the locking mechanism of the knife.
Such knives open instantly for potential use as a weapon. We therefore conclude,
in consideration of the authorities and sources Switchblade Knife Act
and implementing regulations, that the knives with spring-and release- assisted
opening mechanisms, that such knives are described and prohibited
by 15 U.S.C. § 1241(b)(2) and 19 CFR Part 12.95(a)(1).
We also have reconsidered our interpretation of the terms ‘‘utilitarian
use’’, as we have in several rulings found knives with spring-assisted opening
mechanisms to be admissible because they were equipped with blades
for utilitarian use. The regulation defines, albeit by exemplar, the types of
knife (subject to the condition precedent set forth in 19 CFR 12.96: Imported
knives with a blade style designed for a primary utilitarian use, as defined
in § 12.95(c), shall be admitted to unrestricted entry provided that in condition
as entered the imported knife is not a switchblade knife as defined in
§ 12.95(a)(1) [italicized emphasis added] . . .) that are considered to be
‘‘utilitarian’’ for purposes of the statute. See 19 CFR 12.95(c):
(c) Utilitarian use. ‘‘Utilitarian use’’ includes but is not necessarily limited
to use:
(1) For a customary household purpose;
(2) For usual personal convenience, including grooming;
(3) In the practice of a profession, trade, or commercial or employment
activity;
(4) In the performance of a craft or hobby;
(5) In the course of such outdoor pursuits as hunting and fishing; and
(6) In scouting activities.
As we stated in HQ H030606, dated August 12, 2008, with regard to the
regulations implementing the Switchblade Knife Act:
The relevant CBP regulations were implemented in 1971, following
notice and comment, via Treasury Decision (‘‘T.D.’’) 71–243, and the Final
Rule was published in the Federal Register on September 13, 1971.
See Final Rule, 36 FR 18859, Sept. 23, 1971. HQ H030606 at page 3.
The notice of proposed rulemaking, published in the Federal Register on
October 24, 1970, set forth ‘‘[t]he proposed regulations . . . in tentative form
as follows’’:
(a) Definitions. As used in this section the term ‘‘switchblade knife’’
means any imported knife-
(1) Having a blade which opens automatically by hand pressure applied
to a button or device in the handle of the knife or by operation of
inertia, gravity, or both; or
(2) Having a handle over 3 inches in length with a stiletto or other
blade style which is designed for purposes that include a primary use as
a weapon, as contrasted with blade styles designed for a primary utilitarian
use, when, by insignificant preliminary preparation a Customs
officer can alter or convert such stiletto or other weapon to open automatically
as described in subparagraph (1) of this paragraph, under the
principle of the decision in the case of ‘‘Precise Imports Corporation and
Others v. Joseph P. Kelly, Collector of Customs, and Others’’ (378 F. 2d
52 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
1014). The term ‘‘utilitarian use’’ means use for any customary household
purpose; use for any usual personal convenience; use in the practice of a
profession, trade, or commercial or employment activity; use in the performance
of a craft or hobby; use, in the course of such outdoor pursuits
as hunting and fishing; use related to scouting activities; and use for
grooming, as demonstrated by jack-knives and similar standard pocket
knives, special purpose knives, scout knives, and other knives equipped
with one or more blades of such single edge nonweapon styles as clip,
skinner, pruner, sheep foot, spey, coping, razor, pen, and cuticle [italicized
emphasis added]. 35 FR 16594.
The introductory language to the Final Rule made the following prefatory
declarations:
On October 24, 1970, notice was published in the Federal Register (35
FR 16594) of a proposal to prescribe regulations to govern the importation
of articles subject to the so-called Switchblade Knife Act, sections
1 – 4, 72 Stat. 562 (15 U.S.C. 1241 – 1244).
Importers or other interested persons were given the opportunity to
participate in the rule making through submission of relevant comments,
suggestions or objections. No comments were received from importers
or other persons. 36 FR 18859.
CBP announced its proposed intention to amend the regulations via Federal
Register notice on August 18, 1989. See 54 FR 34186 of the same date.
In the introductory ‘‘Background’’ in the proposed rule, CBP (then ‘‘Customs’’)
emphasized the characteristics that would be considered in making
determinations regarding the types of blades knives bore which would be
proscribed by the Switchblade Knife Act and implementing regulations, stating
that:
To implement the law, Customs adopted regulations which followed
the legislative language extremely closely (19 CFR 12.95–12.103). Those
regulations also specifically referred to the court decision of Precise Imports
Corp. and Others v. Joseph P. Kelly, Collector of Customs, and Others
(378 F. 2d 1014). Because of this reference, the existing regulations
appear to imply that one of the principal considerations in determining
the legality of a knife is the type of blade style the weapon possesses.
While style is relevant, it is not of overriding importance. Concealability,
and the ease with which the knife can be transformed from a ‘‘safe’’ or
‘‘closed’’ condition to an ‘‘operational’’ or ‘‘open’’ state are much more important.
The Customs position, which has been supported by court decisions,
is that Congressional intent was to address the problem of the importation,
subsequent sale, and use of a class of quick-opening, easily
concealed knives most frequently used for criminal purposes. The deletion
of the reference to the Precise Imports case does not imply that customs
does not consider the principles contained in that case important,
or that they are in any way no longer relevant. Rather, the principles in
the Precise Imports case could not be considered too limiting [italicized
emphasis added]. 54 FR 34186
There is no reference in the statutory language of the Switchblade Knife
Act to the term ‘‘utilitarian use’’; the only references appear in the CBP
regulations. Similarly, the term has received only passing reference judicially
(‘‘The government indicated that had the knives been ‘‘designed with a
BUREAU OF CUSTOMS AND BORDER PROTECTION 53
single-edge blade and were primarily used for utilitarian purposes’’ rather
than ‘‘double-edged stiletto-style blades’’ they would have been admitted.’’
Taylor v. United States, 848 F.2d 715, 720 (6th Cir. Tenn. 1988)) and in the
Federal Register notices cited above. Therefore, against the explanatory language
from the Federal Register notices set forth above, we consider the ordinary
meaning of the words employed:
The term ‘‘utilitarian’’ is defined at http://dictionary.reference.com/
search?q=utilitarian as:
1. ertaining to or consisting in utility.
2. having regard to utility or usefulness rather than beauty, ornamentation,
etc.
And at the same site:
1. having a useful function; ‘‘utilitarian steel tables’’.
2. having utility often to the exclusion of values; ‘‘plain utilitarian
kitchenware’’.
The term ‘‘utility’’ is defined at http://www.merriam-webster.com/
dictionary/utility as:
1: fitness for some purpose or worth to some end.
2: something useful or designed for use.
From the exemplars set forth in 19 CFR 12.95(c), and definitions set forth
above, we conclude that knives with a primary (constructively or practically
vs. tactically, lethally or primarily as a weapon) utilitarian design and purpose
that are not captured by the definition of switchblades are admissible
pursuant to the Switchblade Knife Act. Thus, for example, pocketknives,
tradesman’s knives and other folding knives for a certain specific use remain
generally admissible, with such determinations being made, by necessity,
on a case-by-case basis. Further, the opening mechanisms of imported
knives must be considered and those that open instantly subjected to strict
scrutiny in order to determine admissibility. As we found in HQs W479898,
dated June 29, 2007 and H017909 dated December 26, 2007, that ‘‘all knives
can potentially be used as weapons’’; likewise the blades of all knives have
some utility. Therefore, consideration of the characteristics of the knives
should be made, focused on those emphasized (‘‘Concealability, and the ease
with which the knife can be transformed from a ‘‘safe’’ or ‘‘closed’’ condition
to an ‘‘operational’’ or ‘‘open’’ state . . .’’) in the Federal Register notice
amending the regulations at issue. Thus, given the clear purpose enunciated
during the notice and comment rulemaking process which amended the relevant
regulation, we conclude that the type of opening mechanism is ‘‘much
more important’’ than blade style in making admissibility determinations
under the Switchblade Knife Act (see 54 FR 34186, supra).
We therefore find that knives with spring-assisted opening mechanisms
that require minimal ‘‘human manipulation’’ in order to instantly spring the
blades to the fully open and locked position cannot be considered to have a
primary utilitarian purpose; such articles function as prohibited switchblade
knives as defined by the relevant statute and regulations.
In reaching this conclusion, we reexamined the sample provided. We note
that other than a bald assertion that the knives at issue are for a ‘‘primary
54 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
utilitarian purpose’’, no evidence substantiating that claim was presented.
The knife at issue can be instantly opened into the fully locked and ready
position with one hand, simply by pushing/applying thumb pressure on either
of the thumb tabs. Although the knife is marketed as a ‘‘release assist’’
model, it nevertheless opens via human manipulation and inertia. See Taylor,
supra. It is based upon this analysis and these factual observations that
we conclude that the knife at issue is a switchblade prohibited from importation
into the United States.
This decision is necessary to reconcile CBP’s position regarding the admissibility
of such knives and comports with the conclusions made in the following
rulings:
In New York Ruling Letter (‘‘NY’’) G83213, dated October 13, 2000, CBP
determined that ‘‘a folding knife with a spring-loaded blade [which could] be
easily opened by light pressure on a thumb knob located at the base of the
blade, or by a flick of the wrist’’ was an ‘‘inertia-operated knife’’ that ‘‘is prohibited
under the Switchblade Act and subject to seizure. See 19 C.F.R.
§12.95 (a)(1).’’
In NY H81084, dated May 23, 2001, CBP determined that 18 models of
knives ‘‘may be opened with a simple flick of the wrist, and therefore are
prohibited as inertial operated knives.’’
In HQ 115725, dated July 22, 2002, CBP determined that a ‘‘dual-blade
folding knife’’ in which the ‘‘non-serrated blade is spring-assisted [and] is
opened fully by the action of the spring after the user has pushed the
thumb-knob protruding from the base of the blade near the handle to approximately
45 degrees from the handle’’ ‘‘is clearly a switchblade as defined
in § 12.95(a)(4) (Knives with a detachable blade that is propelled by a
spring-operated mechanism and components thereof.)’’
In HQ 115713, dated July 29, 2002, CBP determined that four styles of
knives, three of which could ‘‘be opened by the application of finger or thumb
pressure against one of the aforementioned studs that protrudes from the
side of the blade which activates a spring mechanism automatically propelling
the blade into a fully open and locked position[,]’’ and the fourth which
‘‘opened by depressing a bar-like release on the handle which, when pushed,
releases the blade which is then partially opened by a spring mechanism’’
were switchblades pursuant to the Switchblade Knife Act and pertinent
regulations, prohibited from entry into the United States.
In H040319, dated November 26, 2008, we held that knives with springassisted
opening mechanisms are ‘‘switchblades’’ within the meaning of 19
CFR Part 12.95(a)(1) and are therefore prohibited entry into the United
States pursuant to the Switchblade Knife Act (15 U.S.C. §§ 1241–1245).
In turning to the knives at issue in HQ H016666, examination of and the
description of the Tailwind assisted release mechanism and application of
the regulatory criteria set forth above reveals that the subject knives are
switchblades within the meaning of 19 CFR Part 12.95(a)(1) because they
meet the criteria enumerated therein, i.e., they open automatically by operation
of inertia, gravity, or both.
HOLDING:
HQ H016666 is revoked.
The subject knives equipped with the Tailwind release assist mechanism
are switchblade knives within the meaning of 15 U.S.C. § 1241(b)(2) and 19
BUREAU OF CUSTOMS AND BORDER PROTECTION 55
CFR Part 12.95(a)(1). Therefore, pursuant to the Switchblade Knife Act, 15
U.S.C. §§ 1241–1245, the subject knives are prohibited from entry into the
United States.
GEORGE FREDERICK MCCRAY,
Chief,
Intellectual Property Rights and,
Restricted Merchandise Branch.
r
[ATTACHMENT H]
DEPARTMENT OF HOMELAND SECURITY.
U.S. CUSTOMS AND BORDER PROTECTION,
HQ H043127
April 30, 2009
ENF–4–02–OT:RR:BSTC:IPR H043127 AML
CATEGORY: Restricted Merchandise
MR. MATTHEW K. NAKACHI
SANDLER, TRAVIS & ROSENBERG, P.A.
505 Sansome Street
Suite 1475
San Francisco, California 94111
RE: Revocation of HQ H032255; Admissibility of Knives; Switchblade Knife
Act, 15 U.S.C. §§ 1241–1245; 19 CFR Parts 12.95–12.103
DEAR MR. NAKACHI:
This is in reference to Headquarters Ruling Letter (‘‘HQ’’) H032255, dated
August 12, 2008, which concerned the admissibility of the ‘‘VanHoy Assist’’,
a ‘‘release-assisted’’ knife described below, pursuant to the Switchblade
Knife Act, 15 U.S.C. § 1241, et seq. In the referenced ruling, U.S. Customs
and Border Protection (hereinafter ‘‘CBP’’) determined that the knives at issue
were admissible into the United States pursuant to the Switchblade
Knife Act. We have reconsidered the rationale of, and the admissibility determination
made in HQ H032255 and found both to be in error. For the reasons
set forth below, we hereby revoke HQ H032255.
FACTS:
CBP paraphrased your description of the knives at issue in HQ
H03225511 as follows:
[T]he knife at issue, tentatively planned by your client to be called the
‘‘VanHoy Assist,’’ is a knife ‘‘of new design.’’ The prototype is of standard
knife construction with a single-edged, utilitarian blade. You state that
‘‘the unique nature of the knife is that the assisted-opening mechanism
operates by thumb or hand pressure downward on the blade/
thumbscrew (rather than the traditional upward pressure).’’ You further
11 In the ruling request, you indicated that the ‘‘VanHoy Assist’’ was similar to the knife
at issue in New York Ruling Letter (‘‘NY’’) I86378, dated October 1, 2002. Other than the
similarity of the thumb stud on the base of the blade, there is no indication that the knife at
issue in NY I86378 bore a spring-assisted opening mechanism.
56 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
indicate that ‘‘the downward pressure releases the locking mechanism
and then a slight spring action assists the opening of the blade to the
fully locked position.’’ The knife has a 3 inch blade and measures approximately
45⁄8 inches when closed. When extended, the overall length
of the knife is approximately 75⁄8 inches. The knife is refolded by depressing
a manual release.
ISSUE:
Whether the subject knives are prohibited from entry into the United
States pursuant to the Switchblade Knife Act, 15 U.S.C. §§ 1241–1245 and
CBP Regulations promulgated pursuant thereto set forth in 19 CFR
§§ 12.95–12.103.
LAWAND ANALYSIS:
Pursuant to the Act of August 12, 1958 (Pub. L. 85–623, codified at 15
U.S.C. §§ 1241–1245, otherwise known as the ‘‘Switchblade Knife Act’’),
whoever knowingly introduces, or manufactures for introduction, into interstate
commerce, or transports or distributes in interstate commerce, any
switchblade knife, shall be fined or imprisoned, or both.
The Switchblade Knife Act defines ‘‘interstate commerce’’ at 15 U.S.C.
§ 1241(a):
The term ‘‘interstate commerce’’ means commerce between any State,
Territory, possession of the United States, or the District of Columbia,
and any place outside thereof.
The Switchblade Knife Act defines ‘‘switchblade knife’’ at 15 U.S.C.
§ 1241(b):
The term ‘‘switchblade knife’’ means any knife having a blade which
opens automatically—
(1) by hand pressure applied to a button or other device in the handle of
the knife, or
(2) by operation of inertia, gravity, or both[.]
The CBP Regulations promulgated pursuant to the Switchblade Knife Act
are set forth in 19 CFR §§ 12.95–12.103. We note the following definitions:
§ 12.95 Definitions.
Terms as used in §§ 12.96 through 12.103 of this part are defined as follows:
(a) Switchblade knife. ‘‘Switchblade knife’’ means any imported knife,
or components thereof, or any class of imported knife, including
‘‘switchblade’’, ‘‘Balisong’’, ‘‘butterfly’’, ‘‘gravity’’ or ‘‘ballistic’’ knives,
which has one or more of the following characteristics or identities:
(1) A blade which opens automatically by hand pressure applied to a
button or device in the handle of the knife, or any knife with a blade
which opens automatically by operation of inertia, gravity, or both;
(2) Knives which, by insignificant preliminary preparation, as described
in paragraph (b) of this section, can be altered or converted so
as to open automatically by hand pressure applied to a button or device
in the handle of the knife or by operation of inertia, gravity, or
both;
BUREAU OF CUSTOMS AND BORDER PROTECTION 57
(3) Unassembled knife kits or knife handles without blades which,
when fully assembled with added blades, springs, or other parts, are
knives which open automatically by hand pressure applied to a button
or device in the handle of the knife or by operation of inertia,
gravity, or both; or
(4) Knives with a detachable blade that is propelled by a springoperated
mechanism, and components thereof[.]
(b) Insignificant preliminary preparation. ‘‘Insignificant preliminary
preparation’’ means preparation with the use of ordinarily available
tools, instruments, devices, and materials by one having no special
manual training or skill for the purpose of modifying blade heels, relieving
binding parts, altering spring restraints, or making similar minor
alterations which can be accomplished in a relatively short period of
time.
Other pertinent regulations are as follows:
§ 12.96 Imports unrestricted under the Act.
(a) Common and special purpose knives. Imported knives with a
blade style designed for a primary utilitarian use, as defined in
§ 12.95(c), shall be admitted to unrestricted entry provided that in
condition as entered the imported knife is not a switchblade knife as
defined in § 12.95(a)(1) [italicized emphasis added] . . .
§ 12.97 Importations contrary to law.
Importations of switchblade knives, except as permitted by 15 U.S.C.
§ 1244, are importations contrary to law and are subject to forfeiture
under 19 U.S.C. § 1595a(c).
The plain language of the Switchblade Knife Act and relevant CBP regulations
prohibit, inter alia, the importation of knives which are for use as
weapons while explicitly permitting the importation of ‘‘common and special
purpose’’ knives (see 19 CFR 12.95(c) ‘‘Utilitarian Use’’ and 12.96(a) (‘‘Unrestricted
Imports’’)). Several courts have addressed the breadth of the prohibition
set forth in the statute. See, e.g., Precise Imports Corp. v. Kelly, 378
F.2d 1014, 1017 (2d Cir. 1967), cert. denied, 389 U.S. 973, 19 L. Ed. 2d 465,
88 S. Ct. 472 (1967), in which the Court of Appeals for the Second Circuit
stated that:
The report of the Senate Committee on Interstate and Foreign Commerce
which recommended passage of the Switchblade Knife Act stated
that the enforcement of state laws banning switchblade knives would be
extremely difficult as long as such knives could be freely obtained in interstate
commerce, and added:
‘‘In supporting enactment of this measure, however, your committee
considers that the purpose to be achieved goes beyond merely aiding
States in local law enforcement. The switchblade knife is, by design and
use, almost exclusively the weapon of the thug and the delinquent. Such
knives are not particularly adapted to the requirements of the hunter or
fisherman, and sportsmen generally do not employ them. It was testified
that, practically speaking, there is no legitimate use for the
switchblade to which a conventional sheath or jackknife is not better
58 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
suited. This being the case, your committee believes that it is in the national
interest that these articles be banned from interstate commerce.’’
S.Rep. No. 1980, 85th Cong., 2d Sess., reprinted in 2 U.S. Code Cong. &
Ad. News 1958, at 3435–37.
The congressional purpose of aiding the enforcement of state laws
against switchblade knives and of barring them from interstate commerce
could be easily frustrated if knives which can be quickly and easily
made into switchblade knives, and one of whose primary uses is as
weapons, could be freely shipped in interstate commerce and converted
into switchblade knives upon arrival at the state of destination. We decline
to construe the act as permitting such facile evasion.
. . . We hold, therefore, that a knife may be found to be a switchblade
knife within the meaning of the Switchblade Knife Act if it is found that
it can be made to open automatically by hand pressure, inertia, or gravity
after insignificant alterations, and that one of its primary purposes
is for use as a weapon.
In Taylor v. United States, 848 F.2d 715, 717 (6th Cir. 1988) the court, in
describing a Balisong knife stated that:
[T]he district court described a Balisong knife as ‘‘basically a folding
knife with a split handle.’’ It went on to set out its prime use: while the
exotic knife has some utilitarian use, it is most often associated with the
martial arts and with combat . . . [and is] potentially dangerous, lethal.
. . .’’ Citing another district court decision involving the same issue,
Precise Imports Corp. v. Kelly, 378 F.2d 1014 (2d Cir.), cert. denied, 389
U.S. 973, 19 L. Ed. 2d 465, 88 S. Ct. 472 (1967) (upholding a seizure of
certain knives with no legitimate purpose), the district court described
it as of ‘‘minimal value’’ and distinguished another ‘‘seminal case interpreting
the Act’’, United States v. 1,044 Balisong Knives, No. 70–110 (D.
Ore. Sept. 28, 1970) (refusing to support seizure). The district court concluded
that ‘‘congress intended to prohibit knives that opened automatically,
ready for instant use . . . [and] was not concerned with whether
the knife’s blade would merely be exposed by gravity’’, . . . [it] intended
‘open’ to mean ‘ready for use.’ ’’ Taylor v. United States, 848 F.2d 715,
717 (6th Cir. 1988).
See also Taylor v. McManus, 661 F. Supp. 11, 14–15 (E.D. Tenn. 1986), in
which the Court of Appeals for the Eastern District of Tennessee observed:
In examining the congressional record, it seems obvious that congress
intended to prohibit knives which opened automatically, ready for instant
use. Rep. Kelly, for example, described the switchblade ‘‘as a
weapon (which) springs out at the slightest touch and is ready for instant
violence.’’ Switchblade Knives: Hearings Before a Subcommittee of
the Committee on Interstate and Foreign Commerce, House of Rep., 85th
Cong., 2d Sess. 13, 29 (1958). She also noted that the prohibited gravity
knife opens and ‘‘anchors in place automatically. Every bit as fast as the
switchblade, it has proved to be as effective a killer.’’ Id. at 29. Similarly,
Rep. Delaney described the prohibited gravity knives as ‘‘knives (which)
open and lock automatically at a quick flick of the wrist.’’ 104 CONG.
REC., 85th Cong., 2nd Sess. 12398 (June 26, 1958). (Emphasis supplied).
Apparently, then, Congress was not concerned with whether the
BUREAU OF CUSTOMS AND BORDER PROTECTION 59
knife’s blade would merely be exposed by gravity. Instead, they intended
‘‘open’’ to mean ‘‘ready for use’’, as exhibited in Rep. Kelley’s testimony
that the switchblade opened ‘‘ready for instant violence’’ and her and
Rep. Delaney’s comments that the gravity knife opened and locked automatically.
While the Court does not intend to read into the Statute a requirement
that the blades ‘‘lock’’ automatically, it does seem apparent
that Congress intended ‘‘open’’ to mean ‘‘ready for use’’. Obviously a
knife that has not locked into an open position is not ready for use.
Since the Balisong knives cannot be used until the second handle is
manually folded back and clasped, the Court finds that they do not open
automatically by force of gravity or inertia.12
Based primarily on 15 U.S.C. § 1241(b)(1) (see also the first clause of 19
CFR Part 12.95(a)(1)) which defines a switchblade knife as being a knife
having a blade which opens automatically by hand pressure applied to a
button or device in the handle of the knife, as well as reliance upon the exception
set forth at 19 CFR Part 12.95(c) regarding knives with a blade style
designed for a primary utilitarian use, CBP decided in several rulings, including
HQ H032255, that knives with spring- or release-assisted opening
mechanisms are not switchblades as contemplated by the Switchblade Knife
Act and implementing regulations.
Notwithstanding, because of the intrinsic health and public safety concerns
underlying the statute and regulations, it is necessary to reassess our
position regarding knives with spring-assisted opening mechanisms as 1)
there are no judicial decisions interpreting, other than in the context of
Balisong knives (discussed above), 15 U.S.C. § 1241(b)(2) and the second
clause of 19 Part CFR 12.95(a) (discussed below) and 2) CBP has issued inconsistent
rulings, of which HQ H032255 is one, regarding the issue of
whether knives with spring-assisted opening mechanisms are admissible or
prohibited from importation into the United States.
In Alaska Trojan P’ship v. Gutierrez, 425 F.3d 620, 628 (9th Cir. Alaska
2005), the Court of Appeals for the 9th Circuit stated, with regard to the interpretation
of agency regulations that:
‘‘In ascertaining the plain meaning of [a] statute, the court must look
to the particular statutory language at issue, as well as the language
and design of the statute as a whole.’’ McCarthy v. Bronson, 500 U.S.
136, 139, 114 L. Ed. 2d 194, 111 S. Ct. 1737 (1991) (quoting K Mart
Corp. v. Cartier, Inc., 486 U.S. 281, 291, 100 L. Ed. 2d 313, 108 S. Ct.
1811 (1988)) (alteration in original). When a statute or regulation defines
a term, that definition controls, and the court need not look to the
dictionary or common usage. Compare F.D.I.C. v. Meyer, 510 U.S. 471,
476, 127 L. Ed. 2d 308, 114 S. Ct. 996 (1994) (‘‘In the absence of such a
definition, we construe a statutory term in accordance with its ordinary
12The conclusion regarding Balisong knives was reversed by Taylor v. United States, 848
F.2d 715 (6th Cir. Tenn. 1988): ‘‘There is sufficient indication in the legislative history that
the intent was to exclude these martial arts weapons, which even the district court admitted
‘‘can be opened very rapidly, perhaps in less than 5 seconds . . . [and] are potentially
dangerous, lethal weapons.’’ Id. at 720. Further, Balisongs were added to the list of prohibited
knives when the regulations were amended in 1990. See the discussion of the regulatory
amendments in HQ H030606, dated August 12, 2008, page 4.
60 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
or natural meaning.’’). An agency’s interpretation of a regulation must
‘‘conform with the wording and purpose of the regulation.’’ Public Citizen
Inc. v. Mineta, 343 F.3d 1159, 1166 (9th Cir. 2003).
Because of the existence of conflicting rulings (i.e., rulings which have determined
that knives with spring-assisted opening mechanisms are
switchblades as defined in the statute and others which have made the opposite
conclusion), we have reexamined the definition of the word
‘‘switchblade knife’’ set forth at 15 U.S.C. § 1241(b) and 19 CFR Part
12.95(a)(1) and have determined that the definition captures and proscribes,
in addition to ‘‘traditional’’ switchblades, the importation of knives with
spring-assisted opening mechanisms, often equipped with thumb studs or
protrusions affixed to the base of the blade (rather than in the handle of the
knives as set forth in the first clause of 19 CFR Part 12.95(a)(1)). The relevant
regulatory language identifies and defines ‘‘switchblade knives’’ by exemplars
(‘‘ ‘‘switchblade’’, ‘‘Balisong’’, ‘‘butterfly’’, ‘‘gravity’’ or ‘‘ballistic’’
knives’’) and by definition (‘‘or any class of imported knife . . . which has one
or more of the following characteristics or identities: (1) A blade which opens
automatically by hand pressure applied to a button or device in the handle
of the knife, or any knife with a blade which opens automatically by operation
of inertia, gravity or both[.]’’)
In reconsidering what types of knives are contemplated by the statute, we
interpret the controlling terms according to their common meanings13. The
term ‘‘automatically’’ is defined at http://www.merriam-webster.com/
dictionary/ automatically as:
1 a: largely or wholly involuntary; especially: reflex 5 <automatic
blinking of the eyelids> b: acting or done spontaneously or unconsciously
c: done or produced as if by machine: mechanical <the answers
were automatic> 2: having a self-acting or self-regulating mechanism
<an automatic transmission> 3of a firearm: firing repeatedly until the
trigger is released.
The term ‘‘inertia’’ is defined at http://www.merriam-webster.com/
dictionary/inertia as:
1 a: a property of matter by which it remains at rest or in uniform motion
in the same straight line unless acted upon by some external force
b: an analogous property of other physical quantities (as electricity).
See also, http://physics.about.com/od/glossary/g/inertia.htm: Definition:
Inertia is the name for the tendency of an object in motion to remain
in motion, or an object at rest to remain at rest, unless acted upon
by a force. This concept was quantified in Newton’s First Law of Motion;
and http://dictionary.reference.com/browse/ inertia: 2. Physics. a. the
property of matter by which it retains its state of rest or its velocity
13A fundamental canon of statutory construction requires that ‘‘unless otherwise defined,
words will be interpreted as taking their ordinary, contemporary, common meaning.’’
Perrin v. United States, 444 U.S. 37, 42, 62 L. Ed. 2d 199, 100 S. Ct. 311 (1979); see also 2A
Norman J. Singer, Sutherland Statutory Construction § 46:01 (6th ed. 2000). United States
v. Lehman, 225 F.3d 426, 429 (4th Cir. S.C. 2000).
BUREAU OF CUSTOMS AND BORDER PROTECTION 61
along a straight line so long as it is not acted upon by an external force.
In Taylor v. United States, 848 F.2d 715, 720 (6th Cir. Tenn. 1988), the
United States Court of Appeals for the Sixth Circuit, in analyzing the terms
of the statute and regulations at issue stated that:
‘‘Automatically’’ as used in the statute does not necessarily mean simply
by operation of some inanimate connected force such as the spring in
a literal switchblade. For example, the type of gravity or ‘‘flick’’ knife
which is indisputably within the statute requires some human manipulation
in order to create or unleash the force of ‘‘gravity’’ or ‘‘inertia’’
which makes the opening ‘‘automatic.’’
Knives equipped with spring- and release-assisted opening mechanisms
are knives which ‘‘require[ ] some human manipulation in order to create or
unleash the force of ‘‘gravity’’ or ‘‘inertia’’ which makes the opening ‘‘automatic.’’
’’ See Taylor, supra. Despite the fact that they differ in design (most
if not all are equipped with thumb studs affixed to the base of the blunt side
of the blade; the VanHoy Assist a ‘‘button’’ on the blade) from a traditional
switchblade (in which the button that activates the spring mechanism is located
in the handle of the knife), the spring- and release-assisted mechanisms
cause the knives to open fully for instant use, potentially as a weapon.
Such knives are prohibited by the Switchblade Knife Act.
Our interpretation of 15 U.S.C. § 1241(b) and 19 CFR 12.95(a)(1) is supported
by case law. In Demko v. United States, 44 Fed. Cl. 83, 88–89 (Fed.
Cl. 1999), the Court of Federal Claims, in analyzing a regulation regarding
the grandfathered sale of ‘‘street sweeper’’ shotguns, recited the following interpretations
of the word ‘‘or’’ as used in statutes and regulations:
‘‘Generally the term ‘or’ functions grammatically as a coordinating
conjunction and joins two separate parts of a sentence.’’ Ruben v. Secretary
of DHHS, 22 Cl. Ct. 264, 266 (1991) (noting that ‘‘or’’ is generally
ascribed disjunctive intent unless contrary to legislative intent). As a
disjunctive, the word ‘‘or’’ connects two parts of a sentence, ‘‘but disconnect[
s] their meaning, the meaning in the second member excluding
that in the first.’’ Id. (quoting G. Curme, A Grammar of the English Language,
Syntax 166 (1986)); see Quindlen v. Prudential Ins. Co., 482 F.2d
876, 878 (5th Cir. 1973) (noting disjunctive results in alternatives,
which must be treated separately). Nonetheless, courts have not adhered
strictly to such rules of statutory construction. See Ruben, 22 Cl.
Ct. at 266. For instance, ‘‘it is settled that ‘or’ may be read to mean ‘and’
when the context so indicates.’’Willis v. United States, 719 F.2d 608, 612
(2d Cir. 1983); see Ruben, 22 Cl. Ct. at 266 (quoting same); see also
DeSylva v. Ballentine, 351 U.S. 570, 573, 100 L. Ed. 1415, 76 S. Ct. 974
(1956) (‘‘We start with the proposition that the word ‘or’ is often used as
a careless substitute for the word ‘and’; that is, it is often used in
phrases where ‘and’ would express the thought with greater clarity.’’);
Union Ins. Co. v. United States, 73 U.S. 759, 764, 18 L. Ed. 879 (1867)
(‘‘But when we look beyond the mere words to the obvious intent we
cannot help seeing the word ‘or’ must be taken conjunctively. . . . This
construction impairs no rights of the parties . . . and carries into effect
the true intention of Congress. . . .’’).
62 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
In analyzing the language of 15 U.S.C. § 1241(b) and 19 CFR Part
12.95(a)(1), we conclude that the word ‘‘or’’ is used conjunctively yet distinguishes
the paradigm switchblade knife (paraphrased: spring action blade
with a button in the handle) from other knives which function similarly to
the paradigm switchblade but do not have the ‘‘traditional’’ configuration or
function. Given its legislative and judicial history, the Switchblade Knife Act
is intended to proscribe the importation of any knife that opens automatically
by hand pressure applied to a button or device in the handle of the
knife and any knife with a blade which opens automatically by operation of
inertia, gravity or both.
The knives at issue open via inertia – once pressure is applied to the
thumb stud (or button on the base of the blade), the blade continues in inertial
motion (caused by the combined effect of manual and spring-assisted
pressure) until it is stopped by the locking mechanism of the knife. Such
knives open instantly for potential use as a weapon. We therefore conclude,
in consideration of the authorities and sources Switchblade Knife Act and
implementing regulations, that the knives with spring-and release- assisted
opening mechanisms, that such knives are described and prohibited by 15
U.S.C. § 1241(b)(2) and 19 CFR Part 12.95(a)(1).
We also have reconsidered our interpretation of the terms ‘‘utilitarian
use’’, as we have in several rulings found knives with spring-assisted opening
mechanisms to be admissible because they were equipped with blades
for utilitarian use. The regulation defines, albeit by exemplar, the types of
knife (subject to the condition precedent set forth in 19 CFR 12.96: Imported
knives with a blade style designed for a primary utilitarian use, as defined
in § 12.95(c), shall be admitted to unrestricted entry provided that in condition
as entered the imported knife is not a switchblade knife as defined in
§ 12.95(a)(1) [italicized emphasis added] . . .) that are considered to be
‘‘utilitarian’’ for purposes of the statute. See 19 CFR 12.95(c):
(c) Utilitarian use. ‘‘Utilitarian use’’ includes but is not necessarily limited
to use:
(1) For a customary household purpose;
(2) For usual personal convenience, including grooming;
(3) In the practice of a profession, trade, or commercial or employment
activity;
(4) In the performance of a craft or hobby;
(5) In the course of such outdoor pursuits as hunting and fishing; and
(6) In scouting activities.
As we stated in HQ H030606, dated August 12, 2008, with regard to the
regulations implementing the Switchblade Knife Act:
The relevant CBP regulations were implemented in 1971, following
notice and comment, via Treasury Decision (‘‘T.D.’’) 71–243, and the Final
Rule was published in the Federal Register on September 13, 1971.
See Final Rule, 36 FR 18859, Sept. 23, 1971. HQ H030606 at page 3.
The notice of proposed rulemaking, published in the Federal Register on
October 24, 1970, set forth ‘‘[t]he proposed regulations . . . in tentative form
as follows’’:
BUREAU OF CUSTOMS AND BORDER PROTECTION 63
(a) Definitions. As used in this section the term ‘‘switchblade knife’’
means any imported knife-
(1) Having a blade which opens automatically by hand pressure applied
to a button or device in the handle of the knife or by operation of
inertia, gravity, or both; or
(2) Having a handle over 3 inches in length with a stiletto or other
blade style which is designed for purposes that include a primary use as
a weapon, as contrasted with blade styles designed for a primary utilitarian
use, when, by insignificant preliminary preparation a Customs
officer can alter or convert such stiletto or other weapon to open automatically
as described in subparagraph (1) of this paragraph, under the
principle of the decision in the case of ‘‘Precise Imports Corporation and
Others v. Joseph P. Kelly, Collector of Customs, and Others’’ (378 F. 2d
1014). The term ‘‘utilitarian use’’ means use for any customary household
purpose; use for any usual personal convenience; use in the practice of a
profession, trade, or commercial or employment activity; use in the performance
of a craft or hobby; use, in the course of such outdoor pursuits
as hunting and fishing; use related to scouting activities; and use for
grooming, as demonstrated by jack-knives and similar standard pocket
knives, special purpose knives, scout knives, and other knives equipped
with one or more blades of such single edge nonweapon styles as clip,
skinner, pruner, sheep foot, spey, coping, razor, pen, and cuticle [italicized
emphasis added]. 35 FR 16594.
The introductory language to the Final Rule made the following prefatory
declarations:
On October 24, 1970, notice was published in the Federal Register (35
FR 16594) of a proposal to prescribe regulations to govern the importation
of articles subject to the so-called Switchblade Knife Act, sections
1 – 4, 72 Stat. 562 (15 U.S.C. 1241 – 1244).
Importers or other interested persons were given the opportunity to
participate in the rule making through submission of relevant comments,
suggestions or objections. No comments were received from importers
or other persons. 36 FR 18859.
CBP announced its proposed intention to amend the regulations via Federal
Register notice on August 18, 1989. See 54 FR 34186 of the same date.
In the introductory ‘‘Background’’ in the proposed rule, CBP (then ‘‘Customs’’)
emphasized the characteristics that would be considered in making
determinations regarding the types of blades knives bore which would be
proscribed by the Switchblade Knife Act and implementing regulations, stating
that:
To implement the law, Customs adopted regulations which followed
the legislative language extremely closely (19 CFR 12.95–12.103). Those
regulations also specifically referred to the court decision of Precise Imports
Corp. and Others v. Joseph P. Kelly, Collector of Customs, and Others
(378 F. 2d 1014). Because of this reference, the existing regulations
appear to imply that one of the principal considerations in determining
the legality of a knife is the type of blade style the weapon possesses.
While style is relevant, it is not of overriding importance. Concealability,
and the ease with which the knife can be transformed from a ‘‘safe’’ or
64 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
‘‘closed’’ condition to an ‘‘operational’’ or ‘‘open’’ state are much more important.
The Customs position, which has been supported by court decisions,
is that Congressional intent was to address the problem of the importation,
subsequent sale, and use of a class of quick-opening, easily
concealed knives most frequently used for criminal purposes. The deletion
of the reference to the Precise Imports case does not imply that customs
does not consider the principles contained in that case important,
or that they are in any way no longer relevant. Rather, the principles in
the Precise Imports case could not be considered too limiting [italicized
emphasis added]. 54 FR 34186
There is no reference in the statutory language of the Switchblade Knife
Act to the term ‘‘utilitarian use’’; the only references appear in the CBP
regulations. Similarly, the term has received only passing reference judicially
(‘‘The government indicated that had the knives been ‘‘designed with a
single-edge blade and were primarily used for utilitarian purposes’’ rather
than ‘‘double-edged stiletto-style blades’’ they would have been admitted.’’
Taylor v. United States, 848 F.2d 715, 720 (6th Cir. Tenn. 1988)) and in the
Federal Register notices cited above. Therefore, against the explanatory language
from the Federal Register notices set forth above, we consider the ordinary
meaning of the words employed:
The term ‘‘utilitarian’’ is defined at http://dictionary.reference.com/
search?q =utilitarian as:
1. pertaining to or consisting in utility.
2. having regard to utility or usefulness rather than beauty, ornamentation,
etc.
And at the same site:
1. having a useful function; ‘‘utilitarian steel tables’’.
2. having utility often to the exclusion of values; ‘‘plain utilitarian
kitchenware’’.
The term ‘‘utility’’ is defined at http://www.merriam-webster.com/
dictionary/utility as:
1: fitness for some purpose or worth to some end.
2: something useful or designed for use.
From the exemplars set forth in 19 CFR 12.95(c), and definitions set forth
above, we conclude that knives with a primary (constructively or practically
vs. tactically, lethally or primarily as a weapon) utilitarian design and purpose
that are not captured by the definition of switchblades are admissible
pursuant to the Switchblade Knife Act. Thus, for example, pocketknives,
tradesman’s knives and other folding knives for a certain specific use remain
generally admissible, with such determinations being made, by necessity,
on a case-by-case basis. Further, the opening mechanisms of imported
knives must be considered and those that open instantly subjected to strict
scrutiny in order to determine admissibility. As we found in HQs W479898,
dated June 29, 2007 and H017909 dated December 26, 2007, that ‘‘all knives
can potentially be used as weapons’’; likewise the blades of all knives have
some utility. Therefore, consideration of the characteristics of the knives
should be made, focused on those emphasized (‘‘Concealability, and the ease
with which the knife can be transformed from a ‘‘safe’’ or ‘‘closed’’ condition
BUREAU OF CUSTOMS AND BORDER PROTECTION 65
to an ‘‘operational’’ or ‘‘open’’ state . . .’’) in the Federal Register notice
amending the regulations at issue. Thus, given the clear purpose enunciated
during the notice and comment rulemaking process which amended the relevant
regulation, we conclude that the type of opening mechanism is ‘‘much
more important’’ than blade style in making admissibility determinations
under the Switchblade Knife Act (see 54 FR 34186, supra).
We therefore find that knives with spring-assisted opening mechanisms
that require minimal ‘‘human manipulation’’ in order to instantly spring the
blades to the fully open and locked position cannot be considered to have a
primary utilitarian purpose; such articles function as prohibited switchblade
knives as defined by the relevant statute and regulations.
We note that other than a bald assertion that the knives at issue are for a
primary utilitarian purpose (you stated that the knife is of standard construction
and has a single-edged, utilitarian blade’’), no evidence substantiating
that claim was presented. The knife at issue can be instantly opened
into the fully locked and ready position with one hand, simply by pushing on
the thumb tab on the blade. Although the knife is marketed as a ‘‘release assist’’
model, it nevertheless opens via human manipulation and inertia. See
Taylor, supra. It is based upon this analysis and these factual observations
that we conclude that the knife at issue is a switchblade prohibited from importation
into the United States.
This decision is necessary to reconcile CBP’s position regarding the admissibility
of such knives and comports with the conclusions made in the following
rulings:
In New York Ruling Letter (‘‘NY’’) G83213, dated October 13, 2000, CBP
determined that ’’a folding knife with a spring-loaded blade [which could] be
easily opened by light pressure on a thumb knob located at the base of the
blade, or by a flick of the wrist’’ was an ‘‘inertia-operated knife’’ that ‘‘is prohibited
under the Switchblade Act and subject to seizure. See 19 C.F.R.
§12.95 (a)(1).’’
In NY H81084, dated May 23, 2001, CBP determined that 18 models of
knives ‘‘may be opened with a simple flick of the wrist, and therefore are
prohibited as inertial operated knives.’’
In HQ 115725, dated July 22, 2002, CBP determined that a ‘‘dual-blade
folding knife’’ in which the ‘‘non-serrated blade is spring-assisted [and] is
opened fully by the action of the spring after the user has pushed the
thumb-knob protruding from the base of the blade near the handle to approximately
45 degrees from the handle’’ ‘‘is clearly a switchblade as defined
in § 12.95(a)(4) (Knives with a detachable blade that is propelled by a
spring-operated mechanism and components thereof.)’’
In HQ 115713, dated July 29, 2002, CBP determined that four styles of
knives, three of which could ‘‘be opened by the application of finger or thumb
pressure against one of the aforementioned studs that protrudes from the
side of the blade which activates a spring mechanism automatically propelling
the blade into a fully open and locked position[,]’’ and the fourth which
‘‘opened by depressing a bar-like release on the handle which, when pushed,
releases the blade which is then partially opened by a spring mechanism’’
were switchblades pursuant to the Switchblade Knife Act and pertinent
regulations, prohibited from entry into the United States.
In H040319, dated November 26, 1008, we held that knives with springassisted
opening mechanisms are ‘‘switchblades’’ within the meaning of 19
66 CUSTOMS BULLETIN AND DECISIONS, VOL. 43, NO. 21, MAY 22, 2009
CFR Part 12.95(a)(1) and are therefore prohibited entry into the United
States pursuant to the Switchblade Knife Act (15 U.S.C. §§ 1241–1245).
In turning to the knives in HQ H032255, reconsideration of the ‘‘VanHoy
Assist’’ and its assisted-release mechanism and application of the regulatory
criteria set forth above reveals that the subject knives are switchblades
within the meaning of 19 CFR Part 12.95(a)(1) because they meet the criteria
enumerated therein, i.e., they open automatically by operation of inertia,
gravity, or both.
HOLDING:
HQ H032255 is hereby revoked.
The subject knives equipped with the Tailwind release assist mechanism
are switchblade knives within the meaning of 15 U.S.C. § 1241(b)(2) and 19
CFR Part 12.95(a)(1). Therefore, pursuant to the Switchblade Knife Act, 15
U.S.C. §§ 1241–1245, the subject knives are prohibited from entry into the
United States.
GEORGE FREDERICK MCCRAY,
Chief,
Intellectual Property Rights and,
Restricted Merchandise Branch.
r
REVOCATION OF A RULING LETTER AND REVOCATION
OF TREATMENT RELATING TO THE TARIFF
CLASSIFICATION OF WALL BANNERS AND PENNANTS
AGENCY: Bureau of Customs and Border Protection; Department
of Homeland Security.
ACTION: Notice of revocation of a tariff classification ruling letter
and revocation of treatment relating to the classification of wall banners
and pennants
SUMMARY: Pursuant to section 625(c), Tariff Act of 1930, as by
section 623 of Title VI (Customs Modernization) of the North American
Free Trade Agreement Implementation Act (Pub. L. 103–182,
107 Stat. 2057), this notice advises interested parties that Customs
and Border Protection (CBP) is revoking a ruling letter relating to
the tariff classification of certain wall banners and pennants, under
the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). CBP is also revoking any treatment previously accorded
by it to substantially identical transactions. Notice of the proposed
revocation was published on March 19, 2009, in the Customs Bulletin,
Volume 43, Number 12. No comments were received in response
to the proposed revocation.
EFFECTIVE DATE: This action is effective for merchandise entered
or withdrawn from warehouse for consumption on or after July
21, 2009.
BUREAU OF CUSTOMS AND BORDER PROTECTION 67