OT:RR:CTF:CPMM:TJD H333652
Category: Classification
Tariff Nos.: 4503.90.6000; 9507.90.8000
Mr. Gregory Cedotal
CEDot Tackle Company, LLC
40239 La Rochelle Rd.
Prairieville, LA 70769
Re: Tariff classification of cork tackle gear
Dear Mr. Cedotal,
This is in response to your request, dated June 26, 2023, for a binding ruling for your company, CEDot Tackle Company, LLC, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of cork used in fishing gear.
FACTS:
The instant merchandise are pieces of natural cork shaped like conical stoppers and natural cork balls with cuts and flat spots imported from Portugal. The cork pieces are glued to fishing hooks and then painted to make lures. The cork pieces come in a variety of shapes and sizes. The first shape, item A, is a sphere cut to have a flat surface near one “side”. The sphere is cut with a radius-type slot inward to the center from the flat surface. The second shape, item B, is a truncated cone. The cone is cut with two slots; one is a chord, or line across the wider end of the cone terminating at two opposite points along the circle’s curve, and the other is a radius cut inward from the edge to the center of the cone. The third shape, item C, is a small, pointed bullet shape with the flat, circular end cut at an angle. The bullet is cut with a radius slot from the edge to the center of the bullet. The fourth shape, item D, is a larger bullet than the third. The flat side of the bullet has a circular, concave indentation and there is a radius slot cut from the edge to the center of the bullet. The fifth and final shape, item E, is a cylinder with a rounded end. The cylinder is not cut with any slots.
The cork pieces are used to produce fly lures with a cork base that floats constantly. The cork is critical because it allows the fly lure to float. The shaping and slots are cut precisely, because they impact how the fly will float or skip across the water. The fishhooks are inserted into the slots cut into the cork. The shape and cuts of the cork may influence the sounds and movement of the lure in the water.
The cork pieces are not complete fishing lures, but will be used as components of fishing lures after further manufacture.
You request that the items be entered duty free, but you have not requested a specific HTSUS heading for the merchandise. Based on the material and physical characteristics of the merchandise, the HTSUS headings that will be considered for classification of the cork pieces are heading 4503, HTSUS, which provides for “Articles of natural cork,” and heading 9507, HTSUS, which provides for “Fishing rods, fish hooks and other line fishing tackle; fish landing nets, butterfly nets and similar nets; decoy “birds” (other than those of heading 9208 or 9705) and similar hunting or shooting equipment; parts and accessories thereof.”
ISSUE:
Whether the subject cork pieces are classifiable as natural cork under heading 4503, HTSUS, or as fishing tackle under heading 9507, HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs), and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation (AUSRI). 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. 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 may then be applied in order.
AUSRI 1(a), which applies to principal use provisions, provides as follows:
In the absence of special language or context which otherwise requires--
a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use ….
* * *
The HTSUS provisions under consideration are the following:
4503 Articles of natural cork:
4503.90 Other:
4503.90.6000 Other
. . .
9507 Fishing rods, fish hooks and other line fishing tackle; fish landing nets, butterfly nets and similar nets; decoy "birds" (other than those of heading 9208 or 9705) and similar hunting or shooting equipment; parts and accessories thereof:
9507.90 Other:
9507.90.8000 Other, including parts and accessories
Note 1 to Chapter 45 provides as follows:
1. This chapter does not cover:
(c) Articles of chapter 95 (for example, toys, games, sports equipment).
Note 3 to Chapter 95 provides as follows:
3. Subject to note 1 above, parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles.
* * *
The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System (hereinafter "Harmonized System") represent the official interpretation of the Customs Cooperation Council on the scope of each heading. See H.R. Conf. Rep. No.100-576, 100th Cong., 2d Sess. 549 (1988); 23 Customs Bulletin No. 36, 3 (T.D. 89-90, September 6, 1989), 59 F.R. 35127 (August 23, 1989). Although not binding on the contracting parties to the Harmonized System Convention or considered to be dispositive in the interpretation of the Harmonized System, the Explanatory Notes should be consulted on the proper scope of the Harmonized System. Id.
EN 45.03 provides, in pertinent part, as follows:
This heading covers, inter alia :
(1) Corks and stoppers of all kinds, of natural cork, including blanks with rounded edges. Cork stoppers may sometimes be fitted with caps of metal, plastics, etc. Pourer stoppers, measure stoppers and other articles in which a cork stopper is a subsidiary part are, however, classified elsewhere according to the kind of article or the material giving it its essential character.
…
(3) Blocks, plates, sheets and strip of natural cork, cut to shape other than rectangular (including
square); lifebuoys, floats for fishing nets, bath-mats, table-mats, typewriter or other mats.
The following are, however, excluded from this heading :
(e) Toys, games and sports requisites, including fishing line floats, and parts thereof (Chapter 95).
EN 95.07 provides, in pertinent part, as follows:
This heading covers :
Line fishing rods and tackle. Fishing rods may be of various sizes, and may be made
of various materials (bamboo, wood, metal, glass fibre, plastics, etc.). They may consist of a single piece or be jointed. Fishing tackle comprises such items as reels and reel mountings; artificial bait (e.g., imitation fish, flies, insects or worms) and hooks mounted with such bait; spinning bait; mounted lines and casts; fishing floats (cork, glass, quill, etc.) including luminous floats; line winding frames; automatic striking devices; mounted fishing rings (other than mounted rings of precious or semi precious stone); sinkers, and fishing rod bells when mounted or attached to external clamps, clips or other devices.
The ENs to heading 4503, HTSUS, state that corks and stoppers, including those with blanks and rounded edges, are classified under that heading. Articles in which a cork stopper is a subsidiary part are classified according to the kind of article or material giving it its essential character. EN 45.03 further states that floats for fishing nets are included in heading 4503 HTSUS, but fishing line floats (for use in sports fishing), are excluded from heading 4503, HTSUS. By contrast, cork fishing floats are explicitly included as fishing tackle in 9507, HTSUS, according to the ENs of that heading.
Chapter 95, Note (3) provides, subject to those items specifically excluded from classification in Chapter 95 pursuant to Note (1), that “parts and accessories” are items which are “suitable for use solely or principally with articles of” Chapter 95. The test of whether an article is classifiable as a “part” or an “accessory” of an article of Chapter 95, and thereby in heading 9505, HTSUS, is whether it is suitable for use solely or principally with the article of which it is a part or an accessory. The legal note 3 to chapter 95 provides that “parts and accessories which are suitable for use solely or principally with articles of [chapter 95] are to be classified with those articles.”
Heading 9507, HTSUS, which provides for parts of fishing tackle, is a principal use provision subject to AUSRI 1(a). To classify an article under a principal use provision, AUSRI 1(a) requires that the classification is controlled by the principal use of “goods of that class or kind to which the imported goods belong.” In United States v. Carborundum Co., the U.S. Court of Customs and Patent Appeals held that to determine whether an article is included in a particular class or kind of merchandise, the court must consider a variety of factors, including: (1) the general physical characteristics of the merchandise; (2) the channels, class or kind of trade in which the merchandise moves (i.e., where the merchandise is sold); (3) the expectation of the ultimate purchasers; (4) the environment of the sale (i.e., accompanying accessories and marketing); (5) usage, if any, in the same manner as merchandise which defines the class; (6) the economic practicality of so using the import; and (7) the recognition in the trade of this use. United States v. Carborundum Co., 536 F.2d 373, 377 (C.C.P.A. 1976). While these factors were developed under the Tariff Schedule of the United States (predecessor to the HTSUS), the courts have also applied them under the HTSUS. See e.g., Minnetonka Brands v. United States, 24 C.I.T. 645, 651-2 (2000); Aromont USA, Inc. v. United States, 671 F.3d 1310 (Fed. Cir. 2012); Essex Manufacturing, Inc. v. United States, 30 C.I.T. 1 (2006).
The courts have considered the nature of “parts” under the HTSUS and two distinct, though not inconsistent, tests have resulted. See Bauerhin Techs. 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. 322, 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 at 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. 9 at 13). Under either line of cases, an imported item is not a part if it is “a separate and distinct commercial entity.” Bauherin, 110 F. 3d at 779.
Cork items A-D comport with the above definitions of parts and thus fall under subheading 9507.90.8000, HTSUSA. Each piece is shaped and cut in such a manner as to make them unsuitable for any use other than as fishing tackle. The particular cuts have considerable impact on the trajectory of the popper and the manner in which it floats on and skips across the water. These cuts that ensure the pieces are dedicated for use as fishing tackle. Without the cuts, the cork pieces could have many other uses, with cuts they must be used as floats for fishing lures. While the cork pieces are not complete fishing lures, they are parts of fishing lures because they are integral to the function of the completed fishing lures without which the lures could not function. Additionally, the items are imported solely for use with fishing lures. Finally, cork fishing floats are explicitly included under heading 9507 according to the ENs for that heading. As parts of articles of heading 9507, items A-D are classified with those articles, in heading 9507, pursuant to Note 3 to Chapter 95.
Cork item E is not cut with any slots and appears to be an undedicated article of cork. Item E contains no cuts and minimal shaping. The thin cylindrical shape does not function as a stopper. Lacking additional cuts or shaping, it does not appear dedicated to any particular use. It is not a disk, wafer, or wallcovering. Accordingly, it is not a part of an article of heading 9507, HTSUS and it therefore falls under subheading 4503.90.6000, HTSUSA, as an other article of cork.
HOLDING:
By application of GRI 1, cork items A-D are classified in heading 9507, HTSUS, specifically subheading 9507.90.8000, HTSUSA, which provides for “Fishing rods, fish hooks and other line fishing tackle; fish landing nets, butterfly nets and similar nets; decoy “birds” (other than those of heading 9208 or 9705) and similar hunting or shooting equipment; parts and accessories thereof: Other: Other parts and accessories.” The column one, general rate of duty is 9%. Cork item E will be classified in heading 4503, HTSUS, specifically in subheading 4503.90.6000, HTSUSA, which provides for “Articles of natural cork: Other: Other.” The column one, general rate of duty is 14%.
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,
Andrew M. Langreich, Chief
Chemicals, Petroleum, Metals, and
Miscellaneous Articles Branch