CLA-2 OT:RR:CTF:EMAIN H320777 MFT
Jon P. Yormick
Flannery Georgalis, LLC
1375 East 9th Street, 30th Floor
Cleveland, OH 44114
Re: Request for reconsideration of NY N311593; tariff classification of non-powder gun propellant CO2 cartridges
Dear Mr. Yormick:
This letter is in response to your request, dated September 16, 2021, and filed on behalf of your client Crosman Corp., for the reconsideration of New York Ruling Letter (NY) N311593, issued on May 22, 2020, in which U.S. Customs and Border Protection (CBP) classified non-powder gun propellant carbon dioxide cartridges (CO2 cartridges) under subheading 2811.21.00 of the Harmonized Tariff Schedule of the United States (HTSUS). You request that CBP reclassify the merchandise at issue under subheading 9305.99.50, HTSUS. For the reasons set forth below, we affirm our conclusion in NY N311593 that the instant merchandise is correctly classified under subheading 2811.21.00, HTSUS.
FACTS:
As described in the original ruling, the subject CO2 cartridges are non-refillable, pressurized metal cylinders containing carbon dioxide. The cylinders are specifically shaped to fit inside air guns. The cylinders consist of a main body and a neck containing a cap and seal. When the cylinder is placed into an air gun, the seal is punctured to release the carbon dioxide. The released carbon dioxide then propels BBs or pellets. Your submitted photograph indicates that each cartridge is 12 grams, packaged in quantities of 25 pieces and labeled “Crosman Powerlet CO2 Cartridges.”
ISSUE:
Whether the subject CO2 cartridges are classified under subheading 2811.21.00, HTSUS, as “Other inorganic acids and other inorganic oxygen compounds of nonmetals: Other inorganic oxygen compounds of nonmetals: Carbon dioxide,” or under subheading 9305.99.50, HTSUS, as “Parts and accessories of articles of headings 9301 to 9304: Other: Other: Of articles of subheading 9304.00.20 or 9304.00.40: Other.”
LAW AND ANALYSIS:
Classification under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods will be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 will then be applied in order.
The HTSUS headings and subheadings under consideration are as follows:
2811 Other inorganic acids and other inorganic oxygen compounds of nonmetals:
2811.21 Other inorganic oxygen compounds of nonmetals:
2811.21.00 Carbon dioxide
* * * * *
9305 Parts and accessories of articles of headings 9301 to 9304:
Other:
9305.99 Other:
9305.99.50 Of articles of subheading 9304.00.20 or 9304.00.40
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).” Because the subject CO2 cartridges contain pressurized carbon dioxide, the CO2 cartridges are properly classifiable under heading 2811, HTSUS.
You claim that GRI 1 allows for classification of the subject CO2 cartridges under heading 9305, HTSUS. As provided above, heading 9305, HTSUS, provides for “parts and accessories” of articles classified under headings 9301 to 9304, HTSUS. For purposes of this request, GRI 1 requires that the subject CO2 cartridges meet the definition of a “part” of air guns classified under heading 9304, HTSUS.
The term “part” is not defined in the HTSUS. The courts have considered the nature of “parts” under the HTSUS and two distinct though not inconsistent tests have resulted. See Bauerhin Tech’s Ltd. P’ship v. United States, 110 F. 3d 774 (Fed. Cir. 1997). The first, articulated in United States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 332, 324 (1933), requires a determination of whether the imported item is an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 778 (quoting Willoughby, 21 C.C.P.A. 322, 324). The second, set forth in United States v. Pompeo, 43 C.C.P.A. 9, 14 (1955), states that an “imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS.” Bauerhin, 110 F.3d at 779 (citing Pompeo, 43 C.C.P.A. at 13). Pompeo also requires that “the claimed part, when applied to its intended use with that article, meets the definition of a ‘part’ established in Willoughby.” See Pompeo, 43 C.C.P.A. at 14. Under either line of cases, an imported item is not a part if it is “a separate and distinct commercial entity.” See Pomeroy Collection, Ltd. v. United States, 783 F. Supp. 2d 1257, No. 11-78 (Ct. Int’l Trade 2011).
The subject CO2 cartridges do not meet the Pompeo test as they are not “dedicated solely for use” in air guns. You argue that the CO2 cartridges are dedicated solely for use with air guns because they were designed to meet the “exacting standards” for air gun propellant as prescribed in a technical specification by the American Society for Testing and Materials (ASTM). But you provide no evidence that meeting those standards necessarily excludes other applications. Just because the CO2 cartridges “are specially designed by Crosman to meet” the ASTM specification does not, without more, make them “parts” of air guns. The fact that the size of the CO2 cartridges coincides with that of the air guns is not sufficient to establish that they are dedicated for use solely or principally with an air gun of heading 9304, HTSUS. Since the subject CO2 cartridges are not “dedicated solely for use” in air guns, we find that they cannot be considered a “part” under the HTSUS. Moreover, the subject CO2 cartridges are separate and distinct commercial entities inasmuch as they are carbon dioxide in pressurized metal cylinders described by heading 2811, HTSUS.
HOLDING:
For the foregoing reasons, we hereby affirm NY N311593. Accordingly, the CO2 cartridges are properly classified by application of GRIs 1 and 6 under 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 the 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