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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.

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.

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.

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 ....

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.

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

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