CLA-2 OT:RR:CTF:TCM H273316 NCD
S. Anthony Grasso
Senior Manager, Trade Compliance
Tyco Fire Protection Products
One Stanton Street
Marinette, WI 54143
RE: Request for classification of filled canisters for fire suppression systems
Dear Mr. Grasso:
This is in response to your letter of November 5, 2015, filed on behalf of Tyco Fire Protection Products, requesting a binding ruling as to the classification of filled canisters for fire suppression system under the Harmonized Tariff System of the United States (HTSUS). Your letter was received by the National Commodity Specialist Division of U.S. Customs and Border Protection (CBP) and was forwarded to our office for review. In arriving at the determination set forth below, we have taken into account your November 5, 2015 letter (“ruling request”) and your supplemental submission of December 8, 2015 (“supplemental submission”).
FACTS:
The subject merchandise consists of seamless steel canisters filled with a fire extinguishing agent made up of nitrogen, argon, and carbon dioxide (see Figure 1). At the time of importation, the canisters are labeled “DOT SPECIFICATION: 3AA2300” and are affixed with brass valves that enable the canisters’ attachment to fire suppression systems installed in multi-room buildings.
The fire suppression systems are in turn made up of networks of pipes placed in the floors, walls and ceilings of the coverage areas, as well as valves, nozzles, pressure reducers, detection systems, alarms, and electronic, manual, or pneumatic actuators situated throughout these areas (see Figure 2). Upon detection of heat, smoke, or particles in a particular area, an alarm is triggered and the ventilation system is automatically closed. Following this, the canisters’ valves are opened by the actuators so as to release the fire extinguishing agent into the piping network for delivery to and discharge by the nozzles. The canisters and actuators are ideally situated in dedicated areas, such as hallways or storage areas, that are offset from the more fire-prone locations in which the nozzles are installed.
ISSUE:
Whether the subject canisters are classified in heading 3824, HTSUS, as chemical preparations, heading 7311, HTSUS, as steel containers for compressed gas, or in heading 8424, HTSUS, as parts of fire extinguishers.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. GRI 5(b) states that “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,” and that “this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use.”
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the Harmonized System at the international level, 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 following provisions of the 2016 HTSUS are under consideration:
3824 Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included:
3824.90 Other:
Other:
Other:
Other:
3824.90.92 Other
7311.00.00 Containers for compressed or liquefied gas, of iron or steel
8424 Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines; parts thereof:
8424.90 Parts:
8424.90.05 Of fire extinguishers
You assert that the subject canisters are properly classified in heading 8424, HTSUS, which provides, inter alia, for parts of fire extinguishers. EN 84.24 states, in pertinent part, as follows:
(A) FIRE EXTINGUISHERS, WHETHER OR NOT CHARGED
This group covers extinguishers, filled or not, of the kind which use foam producing or other charges, including simple extinguishers fitted with taps, valves, percussion caps or other opening devices.
Pursuant to the plain language of heading 8424, HTSUS, the subject canisters can be described as parts of fire extinguishers within the meaning of heading 8424 if the fire suppression system to which they are connected can be described as a fire extinguisher within the meaning of heading 8424. The term “fire extinguisher” is not defined in heading 8424 or elsewhere in the HTSUS. Undefined tariff terms are construed in accordance with their common meanings, which may be ascertained by reference to “standard lexicographic and scientific authorities,” as well as the pertinent ENs. GRK Can., Ltd. v. United States, 761 F.3d 1354, 1357 (Fed. Cir. 2014). According to various dictionary definitions, a fire extinguisher denotes “a portable apparatus” or “metal container” that “contain[s] chemicals that can be discharged…to extinguish a small fire.” The American Heritage Dictionary 522 (4th ed. 2004); see also The Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/?fire%20extinguisher (defining the term as “a metal container filled with chemicals that is used to put out a fire”); see also The Oxford English Dictionary Online, http://www.oxforddictionaries.com/us/definition/american_english/fire-extinguisher (defining fire extinguisher as “a portable device that discharges a jet of water, foam, gas, or other material to extinguish a fire”); and The Macmillan Dictionary, http://www.macmillandictionary.com/us/dictionary/american/fire-extinguisher (defining the term as “a metal container filled with water or a chemical that you pour onto a fire to stop it burning”). The EN does not define “fire extinguisher,” but consistent with the above-cited dictionary entries, it suggests that they can be “filled” or “charged.”
Here, the fire suppression systems to which the subject canisters are attached include, aside from the canisters themselves, extensive networks of pipes, fittings, and electronic machinery that are integrated into the structures of buildings. They cannot be characterized as “portable apparatus” insofar as they cannot be transported absent disassembly of the entire system. Nor can they be described as “metal containers” that are filled or charged with fire extinguishing agents, as the canisters account for only a portion of the totality of components of which the system is made up. Consequently, the fire suppression systems cannot be described as fire extinguishers within the meaning of heading 8424, HTSUS, and the canisters cannot be described as parts of fire extinguishers classifiable in the heading. This determination is supported by previous rulings in which CBP classified containers of fire extinguishing agents for use in fire suppression systems outside of heading 8424. See New York Ruling Letter (NY) N069857, dated August 18, 2009 (classifying nitrogen cartridge for use in fire suppression system in heading 2804, HTSUS); NY L87876, dated November 14, 2005 (classifying tanks filled with nitrogen “used to detect and suppress explosions” in headings 2804 and 7613, HTSUS); and NY C88319, dated June 11, 1998 (classifying Halon 1301 for use in fire suppression system of civil aircraft in heading 2903, HTSUS).
In contending that the instant canisters are classified in heading 8424, HTSUS, as parts of fire extinguishers, you cite NY N075780, dated October 14, 2009, and NY E84679, dated July 20, 1999, in which CBP classified “fire extinguisher canisters” and “fire extinguisher cylinders” as such. However, by all indications, the canisters at issue in those rulings were not attached to fire suppression systems once completed. Rather, they were fitted following importation with discharge mechanisms that rendered them self-contained fire extinguishers, made up simply of metal containers filled with fire extinguishing agents, in the meaning of heading 8424, HTSUS. As such, the unfinished canisters in NY N075780 and NY E84679 are distinguishable from the instant canisters, which, as components in a fire suppression system, cannot be classified in heading 8424, HTSUS.
In considering the remaining provisions at issue, we note that the subject merchandise consists of a gaseous mixture and a container for this mixture. We therefore must determine whether the canisters, as containers for the fire extinguishing agents, must be classified in the heading in which the fire extinguishing agent is classified in accordance with GRI 5(b). EN(IV) to GRI 5(b) states, with respect to GRI 5(b), as follows:
This Rule governs the classification of packing materials and packing containers of a kind normally used for packing the goods to which they relate. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use, for example, certain metal drums or containers of iron or steel for compressed or liquefied gas.
EN(IV) to GRI 3(b) specifically identifies containers for compressed gas as an exemplar of a packing material that is “clearly suitable for repetitive use.” Moreover, our research indicates that the instant canisters can in fact be refilled by authorized recharge facilities. See Ansul, Inergen® 150-Bar Systems, Section VIII, Page 8-2. Consequently, while the subject canisters may be “of a kind normally used” as containers for gas, they are “clearly suitable for repetitive use.” As such, they are not subject to GRI 5(b), and their classification is independent from that of the extinguishing agent contained within. See, e.g., Headquarters Ruling Letter H181677, dated February 10, 2012 (classifying painting kit in heading 3213, HTSUS, and the wooden box in which the kit is put up for retail sale in heading 4420, HTSUS, upon determining that the latter is suitable for repetitive use); HQ 966961, dated May 3, 2004 (“Customs has repeatedly…[held] that packing clearly suited for repetitive use is separately classified.”); and NY I85498, dated August 27, 2002 (classifying mixtures of krypton, xenon, and neon in heading 2804, HTSUS, and the steel cylinders in which mixture is classified in heading 7311, HTSUS).
Regarding classification of the canisters, we consider heading 7311, HTSUS, which provides, inter alia, for steel containers for compressed gas. EN 73.11 states, in pertinent part, as follows:
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).
Some are strong cylinders, tubes, bottles, etc., tested at high pressure; these may be weldless or welded (e.g., at the bases, round the middle or along the length). Others consist of an inner vessel and one or more outer shells, the intervening space being packed with insulating material, maintained under vacuum or arranged to contain a cryogenic fluid, thus enabling certain liquefied gases to be kept at atmospheric pressure or low pressure.
These containers may be fitted with control, regulating and measuring devices such as valves, taps, pressure gauges, level indicators, etc.
According to the above-cited excerpt of EN 73.11, steel containers of heading 7311, HTSUS, may be in cylindrical form, may be fitted with valves, and are used for the transport or storage of compressed gases such as argon and carbon dioxide. Consistent with this, CBP has regularly classified steel canisters used for storage or conveyance of gas, and bearing the permissible features listed in EN 73.11, in heading 7311. See, e.g., NY N234016, dated October 26, 2012 (classifying stainless steel tanks fitted with valves, pipes, sensors, and controls in heading 7311); NY I85498 (classifying steel cylindrical containers for gaseous mixture in heading 7311); and NY H87858, dated February 1, 2002 (classifying “reusable steel gas cylinder with a manually operated valve on top” in heading 7311).
The instant steel canisters are in cylindrical form, are fitted with valves at their times of entry, and are used to transport and store mixtures of nitrogen, argon, and carbon dioxide. In accordance with EN 73.11, as well as CBP precedent, the canisters are classified in heading 7311, HTSUS.
Finally, with respect to classification of the gaseous mixture contained in the canisters, we consider heading 3824, HTSUS, which provides, inter alia, for “chemical products and preparations of the chemical or allied industries…not elsewhere specified or included.” EN 38.24 states, in pertinent part, as follows:
(B) CHEMICAL PRODUCTS AND CHEMICAL OR OTHER PREPARATIONS
With only three exceptions…this heading does not apply to separate chemically defined elements or compounds.
***
The chemical or other preparations are either mixtures (of which emulsions and dispersions are special forms) or occasionally solutions…
EN 38.24 indicates that heading 3824, HTSUS, includes mixtures of separate chemically defined elements and/or compounds. Accordingly, CBP has issued various rulings classifying mixtures of gaseous elements and compounds in the heading. See NY N270590, dated December 2, 2015 (classifying “compressed gas mixture of boron triflouride, diborane, and hydrogen” in heading 3824); NY N205394, dated March 22, 2012 (classifying mixture of fluorine and nitrogen in heading 3824, HTSUS); NY N017188, dated October 17, 2007 (classifying various mixtures consisting of oxygen, oxygen dioxide, hydrogen sulfide, methane, carbon monoxide, and nitrogen in heading 3824). Similar to the products in those rulings, the fire extinguishing agents contained in the canisters are made up of three separately defined elements and compounds, i.e., nitrogen, argon, and carbon dioxide, and are therefore classified in heading 3824, HTSUS.
HOLDING:
By operation of GRI 1, the subject canisters are classified in heading 7311, HTSUS. They are specifically classified in subheading 7311.00.0030, HTSUSA (Annotated), which provides for: “Containers for compressed or liquefied gas, of iron or steel: Certified prior to exportation to have been made in accordance with the safety requirements of sections 178.36 through 178.68 of title 49 CFR or under a specific exemption to those requirements: Seamless steel containers not overwrapped, marked DOT 3A, 3AX, 3AA, 3AAX, 3B, 3E, 3HT, 3T or DOT-E followed by a specific exemption number.” The 2016 column one rate of duty is free.
By operation of GRI 1, the fire extinguishing agents contained in the canisters are classified in heading 3824, HTSUS. They are specifically classified in subheading 3824.90.9295, HTSUSA (Annotated), which provides for: “Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: Other: Other: Other: Other: Other: Other.” The 2016 column one rate of duty is 5.0% ad valorem.
Duty rates are provided for the internal advice applicant’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
Additionally, please note that the subject canisters may fall within the scope of antidumping orders, published May 7, 2012, on high pressure steel cylinders from China. See 77 Fed. Reg. 26739. We highly recommend that you obtain a scope ruling from the U.S. Department of Commerce, International Trade Administration (ITA), which issues written decisions regarding the scope of antidumping and countervailing (AD/CVD) orders. Scope rulings issued by the ITA are separate from tariff classification rulings issued by CBP. You may contact the ITA at http://www.trade.gov/ia/ (click on “Contact Us”). For further information, you may view a list of current AD/CVD cases at the United States International Trade Commission website at http://www.usitc.gov (click on “Antidumping and countervailing duty investigations”), and you can search AD/CVD deposit and liquidation messages using the AD/CVD Search tool at http://addcvd.cbp.gov/.
A copy of this decision should be filed with the port of entry at the time of entry.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification & Marking Branch