• HQ H285928
• Sep 25, 2017

• Type : Classification • HTSUS : 8541.40.60; 9023.00.00
•  Related:   H266154; H042579; H050116; H084604   

CLA-2 OT:RR:CTF:CPM H285928 NCD

Center Director
Center of Excellence and Expertise for Machinery
U.S. Customs and Border Protection
109 Shiloh Dr., Suite 300
Laredo, TX 78045

Attn: Cristina Yudico, Supervisory Import Specialist

RE: Internal Advice Request; Classification of items for use in “educational projects”

Dear Center Director:

This is in response to a March 15, 2017 request by the Center of Excellence and Expertise for Machinery (“CEE”) for internal advice as to the proper classification of various items for use in “educational projects” under the Harmonized Tariff Schedule of the United States (HTSUS). The CEE submitted its request following receipt of a March 6, 2017 request by Pitsco, Inc., DBA Pitsco Education (“Pitsco”), that the CEE seek internal advice from our office pursuant to 19 C.F.R. §177.11(a) (“internal advice request”). In determining the items’ classifications, we have considered information provided and contentions set forth in Pitsco’s internal advice request, in a July 12, 2017 telephonic conference with representatives of Pitsco, and in Pitsco’s supplemental submission of August 11, 2017 (“supplemental submission”).

FACTS:

The subject merchandise consists of rectangular solar panels of various sizes, as well as foam blocks and plastic tubes in the general form of right prisms. According to Pitsco, all items are designed and marketed for use solely for “educational projects” undertaken by primary and secondary school students in settings like classrooms, science fairs, and science competitions. Pitsco asserts that when used in conjunction with complementary components, as well as instructional materials, the merchandise effectively promotes understanding of science, technology, engineering, and mathematics (i.e., “STEM”) principles.

The solar panels are of three types – designated “Panel 1”, “Panel 2”, and “Ray Catcher” – all of which consist of solar cells mounted on a plastic frame or base (See Figures 1, 2, and 3 below). All three solar panel types include electrical wires, which, in the cases of Panel 1 and Panel 2, are capped with electrical alligator clamps.




 Figure 1 (Panel 1) Figure 2 (Panel 2) Figure 3 (Ray Catcher)   Each panel is of unique dimensions and energy output capacity, which are summarized in the following chart excerpted from Pitsco’s internal advice request:




According to Pitsco, the solar panels are designed for use, and are actually used, exclusively in projects undertaken in classrooms and similar academic environments, the objective of which is to impart an understanding of solar energy principles. Projects in which the solar panels are ostensibly used include, among others, those entailing the construction of miniature solar-powered cars (see Figure 5 below).

The tube is hollow, open-ended, and composed of lightweight, malleable plastic (see Figure 4 below). Running the length of its bottom side is an indent that imparts the tube’s aperture with a general “U” shape. The tube’s top side incorporates a separate rectangular opening approximately 1 ¼ inches from its back end. Pitsco asserts that the plastic tube’s unique size, shape, and composition render it suitable for use only in educational projects involving the construction of miniature solar-powered cars, an example of which is depicted in Figure 5 below. The ostensible objective of such projects is to advance students’ understanding of STEM principles like modeling, aerodynamics, friction, calculating speed, and Newton’s laws of motion. Pitsco also states that the tube is packaged for retail sale to educators in kits containing other project components, including the aforementioned Panel 1 or Panel 2, a motor, gear font, wheels, axles, and washers, as well as an instructional guide.



 Figure 4 Figure 5   The block is composed of high-density foam and incorporates along its bottom side a continuous indent similar to, albeit narrower than, that of the tube (see Figure 6 below). Its back end contains a pre-drilled 2-inch hole, which, according to Pitsco, is designed to accommodate a carbon dioxide-filled cartridge. As with the plastic tube, Pitsco asserts that the block’s unique size, shape, and composition render it suitable for use only in student construction of a miniature CO2-powered “F1” car, the purpose of which is to promote STEM principles like, for example, the scientific method, acceleration, reaction time, and surface area calculation. Pitsco also states that the tube is packaged for retail sale to educators in kits containing other solar-powered car components, including a CO2 cartridge, wheels, axles, sandpaper, screw eyes, washers, and a wooden “blank” with a form and dimensions identical to those of the subject foam block (see Figure 7 below).



 Figure 6 Figure 7   The solar panels were entered in heading 8541, HTSUS, the foam block was entered in heading 3909, HTSUS, and the plastic tube was entered in heading 3926, HTSUS. Pitsco claims that all merchandise at issue is properly classified in heading 9023, HTSUS.

ISSUE:

Whether the solar panels are classified in heading 8541, HTSUS, as photosensitive semiconductor devices, or in heading 9023, HTSUS, as instruments or parts of models or apparatus designed for demonstrational purposes.

Whether the foam blocks are properly classified in heading 3909, HTSUS, as polyurethanes, or in heading 9023, HTSUS, as parts of models or apparatus designed for demonstrational purposes.

Whether the plastic tubes are properly classified in heading 3923, HTSUS, as “other” articles of plastics, or in heading 9023, HTSUS, as parts of models or apparatus designed for demonstrational purposes.

LAW AND ANALYSIS:

Merchandise imported into the United States is classified under the HTSUSA. 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 (AUSRIs). The GRIs and the 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 requires that classification be determined first 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 heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.

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 HTSUS 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 HTSUS provisions under consideration in this case are as follows:

3909 Amino-resins, phenolic resins and polyurethanes, in primary forms

3926 Other articles of plastics and articles of other materials of headings 3901 to 3914

8541 Diodes, transistors and similar semiconductor devices; photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes (LED); mounted piezoelectric crystals; parts thereof

9023 Instruments, apparatus and models, designed for demonstrational purposes (for example, in education or exhibitions), unsuitable for other uses, and parts and accessories thereof

Pitsco contends that the solar panels are articles of heading 9023, HTSUS, and that the foam blocks and plastic tubes are parts of articles of the heading. Note 1(m) to Section XVI precludes classification of articles falling within heading 9023 from classification in heading 8541. Moreover, Note 2(a) to Section XVI provides that, with some exceptions, parts falling within the scope of heading 9023 must be classified in the heading. See also EN 90.23 (“Subject to the provisions of Notes 1 and 2 to this Chapter (see the General Explanatory Note), parts and accessories of apparatus or appliances of this heading remain classified here.”). Accordingly, we initially consider whether the products at issue are, as Pitsco contends, classifiable as articles or parts within heading 9023.

Heading 9023 describes “instruments, apparatus and models” which are “designed for demonstrational purposes” and are “unsuitable for other uses” (emphasis added). EN 90.23 states, in relevant part, as follows:

This heading covers a wide range of instruments, apparatus and models designed for demonstrational purposes (e.g., in schools, lecture rooms, exhibitions) and unsuitable for other uses.   Subject to this proviso, the heading includes:   Special demonstrational machines or appliances such as the Wimshurst machine (for experiments with electricity), the Atwood machine (for demonstrating the law of gravity), Magdeburg hemispheres (for demonstrating the effects of atmospheric pressure), the Gravesande ring (for demonstrating thermal expansion), Newton’s disc (for demonstrating the colour composition of white light).

Models of human or animal anatomies (whether or not articulated or fitted with electric lighting); models of stereometric bodies, of crystals, etc. Models of this kind are usually made of plastics or of compositions based on plaster.

Training dummies, constituting an inflatable life-size model of the human body with artificial respiratory parts reproducing those of a human being; used for training in the “kiss-of-life” revival method.

Cross-sectional models of ships, locomotives, engines, etc., cut to show their internal operation or the functioning of an important part; panels showing, in relief, for example, the assembly of a radio (for radiotelegraphists’ schools), or the oil circulation in an engine, etc., whether or not fitted with an electric lighting system.

Show-cases and exhibit panels, etc., displaying samples of raw materials (textile fibres, woods, etc.), or showing the various stages of manufacture or processing of a product (for instruction in technical schools).

Models, etc., for artillery training, used in training courses held indoors.

Prepared slides for microscopic study.

Models of towns, public monuments, houses, etc. (of plaster, paperboard, wood, etc.).

Small scale demonstrational models (of aircraft, ships, machines, etc.) generally of metal or wood (e.g., for advertising purposes, etc.). It should, however, be noted that models suitable solely for ornamental purposes are classified in their respective headings.  Relief maps (of provinces, towns, mountain ranges, etc.), relief plans of towns, and terrestrial or celestial globes in relief, whether or not printed.

Military tank simulators which are used for the training (including advanced training) of tank drivers…

* * *

The heading also excludes:

* * *

Articles designed for both recreational and demonstrational purposes (e.g., certain model sets of mechanical parts; mechanical or electrical toy locomotives, boilers, cranes, aircraft, etc.) (Chapter 95).

Heading 9023 and EN 90.23 alike make clear that articles of heading 9023 are those designed for “demonstrational purposes” to the exclusion of all other uses. The term “demonstrational” is not defined in the HTSUS and must therefore be construed in accordance with its common meaning, which may be ascertained by reference to “standard lexicographic and scientific authorities” and to the pertinent ENs. See GRK Can., Ltd. v. United States, 761 F.3d 1354, 1357 (Fed. Cir. 2014). Dictionary definitions of “demonstrate” and “demonstration” previously cited by CBP for this purpose indicate that, in the context of “education” or “exhibits”, “demonstrational” denotes an inherent capacity to illustrate certain concepts, functions, processes, etc. See, e.g., Headquarters Ruling Letter (HQ) H266154, dated February 23, 2016, and HQ H042579, dated October 27, 2010 (both citing Oxford English Dictionary definition of “demonstrate”, as well as American College Dictionary definition of “demonstration”, to define “demonstrational” as “used to explain the use or operation of [a] good”); see also HQ H050116, dated March 26, 2009 (determining that a humanoid robot designed to “explain and demonstrate the facts and science on robots” was sufficiently “demonstrational”, given the dictionary definition of “demonstrate”, because the robot “is pointing out information about robotics generally”).

This understanding of the term is supported by EN 90.23, insofar as the exemplars of items “designed for demonstrational purposes” set forth in the EN all share, as a unifying characteristic, the capacity to convey conceptual or practical knowledge. See LeMans Corp. v. United States, 660 F.3d 1311, 1320-21 (Fed. Cir. 2011) (holding that the use of EN exemplars to define the scope of a tariff term is permissible). Specifically, the exemplars include small-scale models that illustrate the anatomical construction and/or mechanics of their full-scale counterparts (e.g., of human or animal bodies, vehicles, structures), interactive simulators and dummies whose use hones certain operational skills (e.g., life-saving techniques, military vehicular navigation), and dynamic objects that provide visual representations of certain technical concepts (e.g., laws of gravity, effects of atmospheric pressure). Articles which do not share this pedagogical characteristic, or otherwise fall within the definitional scope of “demonstrational”, must be classified outside heading 9023, HTSUS. See HQ H042579, supra (ruling that a “camera display model” was excluded from heading 9023 because the article “does not contain any internal electronics, which severely limits the demonstrational abilities of the display model” and because “[a] salesperson cannot use the display model to explain the use or operation of the digital camera to a consumer”).

Here, the subject solar panels, as well as the cars and other items into which the panels, foam block, and plastic tube are incorporated, are all purportedly items “designed for demonstrational purposes” within the meaning of heading 9023, HTSUS. As to the former, we disagree with Pitsco’s contention that the solar panels themselves can be described in this manner. While we do not dispute that the panels are made up of cells capable of converting light energy to electrical energy in the same manner as full-scale commercial solar panels, it is also undisputed that the subject solar panels are designed to be used exclusively in conjunction with the aforementioned cars and other items. See Pitsco Education: Solar Mini Panels, https://www.pitsco.com??/Solar-Mini-Panels (last visited Sept. 6, 2017) (advising prospective purchasers to “[c]onnect these solar panels to motors to make solar-powered vehicles and other projects”; Pitsco Education: Ray Catcher Solar Panel, https://www.pitsco.com/Ray-Catcher-Solar-Panel (last visited Sept. 6, 2017) (advertising that “each panel has two holes for easy connection of the Ray Catcher to the car” and that “the leads are tinned to ensure easy soldering when attaching to the motor”). This is because, as Pitsco concedes and its product literature indicates, the solar cells’ capacity to enlighten users as to “principles of solar energy” is derived from their powering of those cars and other items. Only when attached to the motors of those items can they effectively illustrate to their users how solar energy is converted to propulsive or actuating power. See, e.g., Pitsco Education, Sun Tracker User Guide 59017 V0211 (describing entire Sun Tracker, rather than its constituent Ray Catcher Solar Panel, as the item “designed for demonstrational purposes”). A user of the solar panels could not otherwise develop an understanding of energy conversion by, for example, merely exposing the free-standing panels to light or examining the panels’ make-up. The solar panels therefore lack any independent demonstrational value in their condition as imported, and as such, cannot be classified as articles “designed for demonstrational purposes” within the meaning of heading 9023, HTSUS.

Pitsco contends that the solar panels are in fact “designed for demonstrational purposes” because they are “designed to represent the intricacies of what real-world solar panels do.” However, as stated above, their representation of the energy conversion conducted by “real-world” solar panels is entirely contingent upon their connection to items which make use of the energy provided by the panels. Pitsco also contends that the solar panels fall within the scope of heading 9023, HTSUS, because they are used strictly in “educational” environments. While we do not dispute that this is the case, it is ultimately immaterial because the solar panels fail to satisfy a wholly separate criterion of the heading. The numerous rulings cited by Pitsco for this purpose, all of which involved articles with inherent demonstrational value, are consequently inapplicable here. Similarly, Pitsco’s reliance on various rulings to support its contention that heading 9023 is the “most appropriate provision” presupposes that the solar panels, like the articles at issue in those rulings, are actually prima facie classifiable in the heading. Again, it is our position that they are not.

However, we agree with Pitsco’s contention that the miniature cars into which the solar panels, foam block, and plastic tube are assembled can be described as “designed for demonstrational value.” Pitsco’s product literature indicates that the foam block and plastic tube are specifically tailored for use with, respectively, the “F1” car and “Solar Designer” car. See Pitsco Education, Solar Designer User Guide 28961 V0513. It is evident from this product literature, as well as product descriptions on Pitsco’s website, that the “F1” and “Solar Designer” cars are designed and marketed for use solely in educational contexts, such as classrooms and science fairs or competitions, to bolster students’ understanding of certain STEM principles. By all indications, these cars are in fact capable of fulfilling their intended purpose. Their relatively simple construction allows for independent assembly by students, thereby fostering basic engineering skills, and their inclusion of a functional propulsive system provides first-hand exposure to principles of locomotion and energy conversion. Unlike the free-standing solar panels, an assembly kit for a “F1” or “Solar Designer” car imparts an understanding of how their full-size counterparts operate in practice. To this extent, they are akin to the exemplars of heading 9023 articles, particularly “small scale demonstrational models” and “special demonstrational machines” listed in EN 90.23. Moreover, while we recognize that per EN 90.23, articles designed for dual recreational and demonstrational use fall outside the scope of heading 9023, we do not find that this exception applies here. Although the completed cars are capable of propulsion, thereby introducing a slight aspect of amusement to their educational value, they are of such basic construction and limited mobility so as to lack any meaningful recreational appeal. Therefore, we find that the “F1” and “Solar Designer” cars qualify as articles “designed for demonstrational purposes” within the meaning of heading 9023.

Because the cars qualify as articles “designed for demonstrational purposes” within the meaning of heading 9023, their constituent foam block and plastic tube fall within the scope of the heading if they can be described as “parts” of those cars. Like “demonstrational”, the term “part” has been left undefined in the HTSUS. In the absence of a statutory definition of “part,” courts have fashioned two distinct yet fully reconcilable tests for determining whether a particular item can be described as such. Bauerhin Techs. Ltd. Pshp. v. United States, 110 F.3d 774, 779 (Fed. Cir. 1997). Under the test initially promulgated in United States v. Willoughby Camera Stores, Inc. (“Willoughby”), 21 C.C.P.A. 322, 324 (1933), an imported item is a part for classification purposes only if can be described as 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 779. Under the test set forth in United States v. Pompeo, 43 C.C.P.A. 9, 14 (1955), a good is a “part” if it is “dedicated solely for use” with a particular article.” Bauerhin, 110 F.3d at 779 (citing Pompeo, 43 C.C.P.A. at 14).

Here, as discussed above, the foam block and plastic tube are designed as components of, respectively, the “F1” and “Solar Designer” cars. Relevant product literature indicates that the cars could not function without those components, as the latter comprise almost the entireties of their respective cars’ frames. Moreover, it is evident that the foam block is “dedicated solely for use” with the “F1” car insofar as its general properties, including its lightweight composition, indent, and pre-drilled hole, render it unsuitable for any other conceivable uses. In a similar vein, the plastic tube is sufficiently unique in composition and form to qualify as “dedicated solely for use” with the “Solar Designer” car. The foam block and plastic tube thus satisfy both definitional “part” tests. Moreover, insofar as they are “dedicated solely for use” with articles of heading 9023, they satisfy Note 2(b) to Chapter 90, which provides that parts suitable for use solely with articles of the heading are to be classified there. We therefore find that the foam block and plastic tube are excluded from the other headings other consideration, specifically headings 3909 and 3926, HTSUS, and are classified in heading 9023, HTSUS. 

Because the solar panels are excluded from the heading, we consider classification in heading 8541, HTSUS. Heading 8541 provides, inter alia, for “photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels.” EN 85.41 states, in relevant part, as follows:

(B) PHOTOSENSITIVE SEMICONDUCTOR DEVICES   This group comprises photosensitive semiconductor devices in which the action of visible rays, infrared rays or ultraviolet rays causes variations in resistivity or generates an electromotive force, by the internal photoelectric effect.

* * *

The main types of photosensitive semiconductor devices are:

* * *

Photovoltaic cells, which convert light directly into electrical energy without the need for an external source of current. Photovoltaic cells based on selenium are used mainly in luxmeters and exposure meters. Those based on silicon have a higher output and are used, in particular, in control and regulating equipment, for detecting light impulses, in communication systems using fibre optics, etc.

Special categories of photovoltaic cells are:

Solar cells, silicon photovoltaic cells which convert sunlight directly into electric energy. They are usually used in groups as sources of electric power, e.g., in rockets or satellites employed in space research, for mountain rescue transmitters.

The heading also covers solar cells, whether or not assembled in modules or made up into panels. However the heading does not cover panels or modules equipped with elements, however simple (for example, diodes to control the direction of the current), which supply the power directly to, for example, a motor, an electrolyser (heading 85.01).

Per its own plain language, heading 8541 applies to panels of photovoltaic cells, which, according to EN 85.41 and various technical sources, consist of cells which convert sunlight into electrical energy. See National Renewable Energy Laboratory: Solar Photovoltaic Technology Basics, https://www.nrel.gov/?workingwithus/re-photovoltaics.html (last visited Sept. 7, 2017) (“Solar cells, also called photovoltaic (PV) cells by scientists, convert sunlight directly into electricity.”); Solar Energy Industries Assn.: Photovoltaic (Solar Electric), http://www.seia.org/?policy/solar-technology/?photovoltaic-solar-electric (last visited Sept. 7, 2017) (“Photovoltaic (PV) devices generate electricity directly from sunlight.”). The solar panels at issue consist of framed series of photosensitive cells which, according to the voltage, wattage, and amperage specifications in the above-referenced chart, generate electrical energy upon exposure to light. As such, they fall squarely within the scope of heading 8541. We note that the panels include wires and (in the cases of Panels 1 and 2) clamps which are used to form an electrical circuit between the panels and the motors of the miniature cars and other items into which they are integrated. However, it is CBP’s position that wires and clamps do not qualify as “elements” of the sort described in EN 85.41, and that, accordingly, panels equipped with such remain “photovoltaic cells…made up into modules” for purposes of heading 8541. See HQ H084604, dated August 30, 2016 (classifying solar module replete with “cables and connectors for external wiring” in heading 8541).

Pitsco contends that the solar panels cannot be classified within Chapter 85, or elsewhere outside heading 9023, HTSUS, because they are “fundamentally different” from the types of solar panels “contemplated by heading 8541.” To this end, Pitsco suggests that the heading is reserved for solar panels with relatively high voltage and amperage ratings, energy storage capacity, protective seals, and various electrical components. By its own plain language, however, the heading applies simply to panels of photovoltaic cells, whose sole defining feature is a capacity to convert light to energy. Nowhere in the HTSUS, relevant ENs, or elsewhere is it indicated that solar panels of the heading must also include anything other than solar cells, meet certain output thresholds, or store the energy they generate. In fact, according to EN 85.41, the inclusion of additional components may render such panels outside the scope of the heading.

Relatedly, Pitsco contends that the solar panels’ relatively small size and low output renders them economically impractical or altogether unsuitable for commercial, residential, industrial, or any other non-educational applications. Even supposing this is the case, it is ultimately immaterial since heading 8541 is not a use provision. Rather, heading 8541 provides eo nomine for “photovoltaic cells…assembled in modules or made up into panels.” Again, the instant solar panels satisfy this description insofar as they convert light to electrical energy, and they consequently fall within the scope of the heading irrespective of which apparatus they can feasibly and cost-effectively power. In view of this, and that they cannot be described as articles of heading 9023, the solar panels are properly classified in heading 8541.

HOLDING:

By application of GRI 1, the three solar panels are classified in heading 8541, HTSUS. They are specifically classified in subheading 8541.40.60, HTSUS (Annotated), which provides for: “Diodes, transistors and similar semiconductor devices; photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes (LED); mounted piezoelectric crystals; parts thereof: Photosensitive semiconductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes (LED): Other diodes.” The general column one rate of duty for subheading 8541.40.60, HTSUS, is free.

By application of GRI 1, the foam block and plastic tube are classified in heading 9023, HTSUS. They are specifically classified in subheading 9023.00.00, HTSUS, which provides for: “Instruments, apparatus and models, designed for demonstrational purposes (for example, in education or exhibitions), unsuitable for other uses, and parts and accessories thereof.” The general column one rate of duty for subheading 9023.00.00, HTSUS, is free.

Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.

Additionally, please note that the subject solar panels may fall within the scope of antidumping and countervailing duty orders on “crystalline silicon photovoltaic cells, whether or not assembled into modules” from the People’s Republic of China. See A-357-988, 76 Fed. Reg. 70960 (November 16, 2011), and C-357-989, 76 Fed. Reg. 70966 (November 16, 2011). We highly recommend that the importer obtain a scope ruling from the U.S. Department of Commerce, International Trade Administration (ITA), to determine whether the subject solar panels fall within the scope of the order. The importer may contact the ITA at http://www.trade.gov/ia/ (click on “Contact Us”).  A list of current AD/CVD cases is available at the United States International Trade Commission website at http://www.usitc.gov (click on “Antidumping and countervailing duty investigations”), and AD/CVD deposit and liquidation messages can be searched using the AD/CVD Search tool at http://addcvd.cbp.gov/.

Sixty days from the date of this decision, the Office of International Trade, Regulations and Rulings, will make this decision available for CBP personnel, and to the public on the CBP Home Page at http://www.cbp.gov by means of the Freedom of Information Act, and other methods of publication.


Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division