us-cbp-cross-rulings-hq-085005•HQ 085005: Fishing Chums or Attractants
HQ 085005: Fishing Chums or Attractants
us-cbp-cross-rulings-hq-085005HQ 085005: Fishing Chums or AttractantsGuidance
Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.
HQ 085005
January 16, 1990
CLA-2 CO:R:C:G 085005 SS
CATEGORY: Classification
TARIFF N0.: 9507.90.70
Ms. Marcia Mee-Lee
543 Walnut Street
Newtonville, MA 12160
RE: Fishing Chums or Attractants
Dear Ms. Mee-Lee:
This letter is in reply to your letter dated May 30, 1989,
requesting a tariff classification for a fishing chum designated
"Hodgson's Set & Forget Berley Plus", imported from Australia
under the Harmonized Tariff Schedule of the United States
(HTSUS). On September 18, 1989, we also received additional
information submitted by Mr. Peter C. Hodgson.
FACTS:
The subject "Set & Forget Berley Plus", developed by Mr.
Peter Hodgson, is stated to be a chum used as a fish attractant
by fishermen to attract fish to an area where a line and bait are
dropped and waiting. It is a dried product, having the
appearance of a large fat sausage contained in a netting bag. It
is used by removing it from the outer plastic bag, tying it to a
rope or cord and lowering it into the water to the depth at which
the fisherman is fishing.
It is further stated that over a period of 1-3 hours,
depending on the strength of the water currents, the Berley Plus
slowly liberates its particles into the water creating a chum
stream of natural fish meal, cereal products and fish oils, the
flavors of which have been dramatically enhanced and optimized by
a specially developed production process.
-2-
The fish are attracted up the chum stream, and in their
excitement to feed, they are ready to grab at any bait in the
vicinity. The composition of the subject chum is as follows:
Ingredient Approximate
percent by weight
High protein wheat flour 12 percent
Coarse wheat bran 31.2 percent
Fine wheat bran 31.2 percent
Aqueous sodium chloride solution 16 percent
Dried fish waste solids 6 percent
Extracted fish oil 3.6 percent
It is also stated (in a subsequent submission) that the
products used in the preparation of chums include worms,
molluscs, cephalopods, echinoderms, crustaceans, fish, seaweed,
cereal products and legumes. The protein content of the subject
chum is said to vary from 10 percent for low grade cereal
products up to 45 percent for high protein chums.
The product is stated to be made in the following manner:
1. A bran/fish oil mixture is made.
2. Flour, water and salt are mixed then combined with
the bran/fish oil mixture.
3. The fish waste solids are obtained by passing them
(the fish waste) through a screen; then they are added
to the mixture described in step 2.
4. All the above materials are extruded through an
extruder, and made into the resulting cylindrical
shape.
5. The extruded mass is then dried to reduce the total
water content of the product.
-3-
6. It (the product) is put into a Sarlon netting bag
or an extruded plastic or polyethylene net bag.
7. It is then housed in its outer white polyethylene bag.
"Set & Forget Plus" is proposed to be sold as a clean, no-
mess, easy-to-use chum for all kinds of saltwater and freshwater
fishing. The word "chum" is not used in the fishing vocabulary
in Australia -- a chum is referred to as a "berley." Similarly,
in the United States, the word "berley" is not part of the
fishing vocabulary -- the word chum is used instead.
ISSUE:
What is the proper tariff classification for chums used for
fishing?
LAW AND ANALYSIS:
Classification under the HTSUS is governed by the General
Rules of Interpretation (GRI)1. GRI 1 provides that
classification is determined first in accordance with the terms
of the headings and any relative Section or Chapter notes.
Heading 9507, HTSUS, provides for fishing rods, fish hooks
and other line fishing tackle ... parts and accessories thereof.
The Explanatory Notes to this heading state in pertinent part
that this heading covers:
(1) Fish hooks of all kinds (e.g., with single
or multiple barbs) and sizes. These are usually
made of steel but they may be bronzed, tinned,
silvered or gilded.
* * *
(3) Line fishing rods and tackle ... Fishing tackle
comprises such items as reels and reel mountings;
artificial bait (e.g., imitation fish, flies,
insects or worms)....
The question presented here is whether the subject product
can be considered to be other fishing tackle, i.e., bait, within
the meaning of this heading.
-4-
Although the Explanatory Notes state that fishing bait is
within the scope of this heading, the Notes also make clear that
the type of bait included under this heading is artificial bait.
In fact, all of the exemplars of this heading are of the kind
used either as fishing equipment or as artificial fishing lures
and artificial bait (e.g., imitation fish, flies, insects or
worms). While it might be argued that the subject chum is a lure
and thus within the scope of this heading, the obvious rebuttal
to this argument is that the subject chum is not an artificial
lure or bait of the kind described under this heading. Further,
since the language and the Explanatory Notes to heading 9507
specifically refer to artificial bait, it can be argued by
inference that the Harmonized Committee intended to exclude
natural and organic bait from the scope of this heading.
Heading 0511, HTSUS, provides for animal products not
elsewhere specified or included. The General Notes to the
Explanatory Notes of Chapter 5, HTSUS, state this Chapter covers
a variety of materials of animal origin, unworked or having
undergone a simple process of preparation. The animal matter of
the subject chums is a worked product. Accordingly, the subject
merchandise is not properly classifiable in heading 0511, HTSUS.
Since classification cannot be determined under GRI 1, GRI 2
becomes operative. Under GRI 2(b), goods composed of more than
one material or substance are considered to be prima facie
classifiable in two or more headings if those headings correspond
to the constituent materials or substances. This rule indicates
that GRI 3 should govern the classification of goods consisting
of more than one material or substance.
GRI 3(b) provides that goods consisting of different
materials "shall be classified as if they consisted of the
material ... which gives them their essential character, insofar
as this criterion is applicable." The Explanatory Notes for GRI
3(b) state that "[t]he factor which determines essential
character will vary as between different kinds of goods. It may,
for example, be determined by the nature of the material or
component, its bulk, quantity, weight or value, or by the role of
a constituent material in relation to the use of the goods."
Heading 2301, HTSUS, provides for flours, meals and pellets,
of meat or meat offal, of fish or of crustaceans, molluscs or
other aquatic invertebrates, unfit for human consumption ....
-5-
The General Notes to the Explanatory Notes of Chapter 23
state that this Chapter covers various residues and wastes
derived from vegetable materials used by food-preparing
industries, and also certain products of animal origin.
The Explanatory Notes to heading 2301, HTSUS, state in
pertinent part, that this heading covers flours and meals unfit
for human consumption, obtained by processing either the whole
animal (including poultry, marine mammals, fish or crustaceans,
molluscs or other aquatic invertebrates) or animal products. The
Notes further state that the flours, meals and pellets of this
heading are used mainly in animal feeding, but may also be used
for other purposes.
The subject chum is composed of various ingredients. It is
used chiefly for attracting fish to the area where a fishing line
has been dropped and is awaiting the bite of the fish. The fish
are attracted to the chums chiefly because of the waste fish and
aquatic invertebrates which are component ingredients of the
subject chum. Without this ingredient, the chum would not
attract the fish, and the remaining materials would have no value
or use as chums to fishermen.
In our view, the residue of the fish and aquatic
invertebrates represents the constituent material which imparts
the essential character of the subject chum.
However, the subject merchandise is not a flour, meal or
pellet within the common meaning of these terms. The Random
House Dictionary of the English Language (Unabridged, 1966)
defines "pellet" as follows:
1. a small, rounded or spherical body, as of food
or medicine.
Accordingly, the subject chums is not properly
classifiable under heading 2301, HTSUS.
-6-
When merchandise cannot be classified using GRI's 1 through
3, GRI 4 becomes operative. GRI 4 states that goods which cannot
be classified in accordance with the above rules shall be
classified under the heading appropriate to the goods to which
they are most akin. As previously stated, heading 9507, HTSUS,
provides for fishing rods, fish hooks and other line fishing
tackle ... parts and accessories thereof. The subject chum is
most akin to the merchandise described under heading 9507, HTSUS,
and accordingly, by application of GRI 4, is properly
classifiable under this heading.
HOLDING:
The subject chum is properly classifiable under subheading
9507.90.7000 HTSUS, which provides for fishing rods, fish hooks
and other line fishing tackle ...: other: other, artifical
baits and flies, dutiable at a rate of 9 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc: Area Director, New York Seaport
SSingh:jaj:10/19/89
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