OT:RR:CTF:EMAIN H331516 LCB
Port Director
301 East Ocean Boulevard
Long Beach, California 90802
Re: Tariff classification of CO2 cartridges; AFR/Protest No. 2704-23-164523
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2704-23-164523 filed on behalf of Crosman Corporation (“Protestant”). Protestant contests the tariff classification by U.S. Customs and Border Protection (“CBP”) of “Crosman Powerlet CO2 Cartridges” (hereinafter “CO2 cartridges”). The subject entry occurred on September 18, 2021, after having been liquidated under heading 2811, HTSUS, on September 13, 2021. In preparing this ruling, consideration was given to protestant’s AFR as well as our conference with protestant’s counsel, held on June 15, 2023, and protestant’s follow-up submission sent to our office June 16, 2023.
FACTS:
At issue in the present case is compressed carbon dioxide (“CO2”) gas in small steel cylinders, referred to by protestant as “cartridges.” Each cartridge consists of a main body and a neck containing a cap and seal. The welded neck is unthreaded.
The subject CO2 cartridges are sold in quantities of twenty-five pieces and are labeled “Crosman Powerlet CO2 Cartridges.” The CO2 cartridges may be used in air guns. When the CO2 cartridge is inserted into an air gun, the seal is punctured to release the CO2, which is used to propel BBs or pellets. Once the CO2 is depleted, the steel cylinder is disposed of. The cartridges are not refillable and are not suitable for repetitive use.
ISSUE:
Whether the subject CO2 cartridges are classified under heading 2811, HTSUS, which provides for, “Other inorganic acids and other inorganic oxygen compounds of nonmetals,” under heading 7311, HTSUS, which provides for “Containers for compressed or liquefied gas, of iron or steel,” or under heading 9306, HTSUS, which provides for, in pertinent part, “cartridges and other ammunition and projectiles and parts thereof.”
LAW AND ANALYSIS:
Initially, we note that the matters protested are protestable under 19 U.S.C. §1514(a)(2) as decisions on classification. The protest was timely filed, within 180 days of liquidation of the entries at issue. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further Review of Protest No. 2704-23-164523 is properly accorded to protestant pursuant to 19 C.F.R. § 174.24(c) because the decision against which the protest was filed involves matters previously ruled upon by CBP, but facts are alleged or legal arguments presented which were not considered at the time of the original ruling. Namely, the protestant acknowledges that CBP classified “Crosman Powerlet CO2 Cartridges” under heading 2811, HTSUS, in Headquarters Ruling Letter (“HQ”) H320777, dated December 16, 2023, but in so doing did not address the scope of heading 9305, HTSUS.
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. If the goods cannot be classified solely based on GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
GRI 5 provides, in pertinent part, the following:
(b) Subject to the provisions of rule 5(a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use.
In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The HTSUS provisions under consideration in this ruling are as follows:
2811 Other inorganic acids and other inorganic oxygen compounds of nonmetals:
* * *
7311 Containers for compressed or liquefied gas, of iron or steel
* * *
9306 Bombs, grenades, torpedoes, mines, missiles and similar munitions of war and parts thereof; cartridges and other ammunition and projectiles and parts thereof, including shot and cartridgewads:
The EN to heading 28.11 provides, in pertinent part, the following:
This heading covers mineral acids and anhydrides and other oxides of non-metals. The most important are listed below according to their non-metal component (*):
***
(L) CARBON COMPOUNDS
(2) Carbon dioxide (CO2) … Carbon dioxide can be presented either as a liquid (compressed in steel cylinders), or as a solid (compressed cubes in insulated container, “carbonic snow” or “carbonic ice”) ...
The EN to heading 73.11 provides, in pertinent part, the following:
This heading covers containers of any capacity used for the transport or storage of compressed or liquefied gases (e.g., helium, oxygen, argon, hydrogen, acetylene, carbon dioxide or butane).
The EN to heading 93.06 provides, in pertinent part, the following:
This heading includes:
Ammunition, e.g.:
***
(2) Cartridges of all types: blank (including blank cartridges for riveting tools or for starting compression ignition internal combustion piston engines), bulleted, tracer, incendiary, armor piercing, ball and shot cartridges for sporting guns, etc.
Note 2(a) to Chapter 28 of the HTSUS provides, inter alia, that certain compounds of carbon are classified under the chapter, including “oxides of carbon.” Carbon dioxide is one of several “oxides of carbon . . . (heading 2811),” and is therefore classifiable within Chapter 28, HTSUS. Additionally, the EN to heading 2811 specifically provides that “Carbon dioxide can be presented either as a liquid (compressed in steel cylinders) or as a solid (compressed cubes in insulated containers, “carbonic snow” or “carbonic ice”) (Emphasis added). Therefore, the subject CO2 cartridges, which contain pressurized carbon dioxide, are properly classified under heading 2811, HTSUS.
Protestant argues that the CO2 cartridges are classified under heading 9306, HTSUS, which provides for “Bombs, grenades, torpedoes, mines, missiles and similar munitions of war and parts thereof; cartridges and other ammunition and projectiles and parts thereof, including shot and cartridgewads.” We disagree.
Exemplars of cartridges that fall within heading 9306 are listed in the EN as:
Ammunition, e.g.:
(2) Cartridges of all types: blank (including blank cartridges for riveting
tools or for starting compression ignition internal combustion piston
engines), bulleted, tracer, incendiary, armour piercing, ball and shot
cartridges for sporting guns, etc.
Because Item (A)(2) “Cartridges of all types” falls under the superior designation for “Ammunition” within the EN to heading 9306, HTSUS, it follows that the cartridges of heading 9306, HTSUS, are those used as ammunition. This conclusion comports with the relevant legal text of heading 9306, HTSUS, which provides for “cartridges and other ammunition and projectiles.” (Emphasis added). The CO2 cartridges at issue do not constitute rounds nor ammunition. They are merely cylinders that store energy in the form of compressed CO2. Consequently, a cylinder of compressed CO2 is not a cartridge or other ammunition of heading 9306, HTSUS, regardless of whether it is sized to fit into an air gun.
In support of its claim that the CO2 cartridges should be classified under 9306, HTSUS, protestant cites New York Ruling Letter (“NY”) L84342 (April 28, 2005), and Headquarters Ruling Letter (“HQ”) 95854 (February 5, 1996). However, neither of the products classified by the aforementioned rulings are analogous to the CO2 cartridges at issue in the present case.
NY L84342 concerns power boosters, described as follows:
The booster cartridge is of a rim-fire design, contains standard black powder propellant and employs a brass power cell contained within a plastic piston and encased within a nylon cartridge. The booster provides the force necessary to propel wedge connectors at a powder-actuated high velocity into direct contact with conductors forming a stable connection.
NY L84342 concludes that the subject booster cartridge was properly classified in heading 9306, HTSUS. Each booster cartridge features a rim-fire design synonymous with ammunition and uses a black powder propellant to propel a wedge connector at a high velocity into a conductor. In contrast, the subject CO2 cartridges simply contain compressed CO2 gas and do not require a firing pin to activate a propellant powder.
HQ 958546 examines the Aircartridge, described as follows:
The Aircartridge consists of a shell filled with compressed air, a projectile or bullet at the mouth of the shell, and a mechanical valve at the base which acts as a primer. When the weapon’s firing pin strikes the valve it releases the compressed air, thus driving the bullet or projectile out of the barrel.
In HQ 958546, we classified the Aircartridge under heading 9306, HTSUS, because it is a unit of ammunition that includes a shell, a projectile, a mechanical valve (acting as the primer), and compressed air (acting as the propellant). Its construction differs from the CO2 cartridges in the present case, which are mere containers that hold CO2 gas, not an assembly composed of multiple components arranged in sequence with the goal of propelling a projectile from the shell.
Although HQ Ruling 958546 states that heading 9306, HTSUS, is an eo nomine provision that covers not only cartridges that use gunpowder, but also compressed air as the propellant, it also emphasizes that the Aircartridge is a complete round of ammunition. It is true that both the subject CO2 cartridges and the Aircartridge may be referred to as cartridges. However, they differ in their construction, operation, and use. Whereas the Aircartridge is a complete round of ammunition classified under 9306, HTSUS, the subject CO2 cartridges are not.
Moreover, CO2 cartridges have uses beyond powering an air gun, including to carbonate soda, to inflate tires, to charge kegs, to supply carbon dioxide in aquariums, to blow out clogged pipes, or to inflate a personal flotation device such as a life preserver. CO2 cartridges are also interchangeable; for example, an unthreaded CO2 cartridge may be suitable for use in either an air gun, an inflator, or a CO2 charger. A CO2 cartridge that can be used with an air gun, a CO2 inflator, or with CO2 charger, cannot be classified merely as a cartridge of heading 9306, HTSUS. The instant CO2 cartridges are not appreciably different from those used in the aforementioned applications.
Finally, protestant alternatively argues that the CO2 cartridges may be classified under heading 7311, HTSUS. In support of this argument, protestant contends that the steel cylinders filled with CO2 are composite goods classifiable in accordance with GRI 3(b), with the essential character of the cartridge being the steel cylinder. However, as previously discussed, the CO2 cartridges are classified under heading 2811, HTSUS, pursuant to GRI 1. GRI 3(b) therefore has no role in the analysis. The cylinders are merely disposable packaging classifiable with the CO2 in accordance with GRI 5(b), supra. While empty steel cylinders of the kind used for the instant CO2 cartridges would be classifiable in heading 7311 as “Containers for compressed or liquefied gas, of iron or steel,” the present cylinders are filled with CO2 and are not refillable.
HOLDING:
By application of GRIs 1 (Note 2(a) to Chapter 28), 5(b) and 6, the CO2 cartridges are classified in heading 2811, HTSUS, specifically in subheading 2811.21.00, HTSUS, which provides for: “Other inorganic acids and other inorganic oxygen compounds of nonmetals: Other inorganic oxygen compounds of nonmetals: Carbon dioxide.” The general, column one rate of duty is 3.7 percent ad valorem.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 2811.21.00, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.03, in addition to subheading 2811.21.00, HTSUS, listed above.
For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division