OT:RR:CTF:EMAIN H305273 PF
Daniel Miers
King Sailfish Mounts
5881 N.E. 14th Avenue
Fort Lauderdale, FL 33334
RE: Tariff Classification of Unfinished Fiberglass Fish Blanks from China
Dear Mr. Miers:
This is in reply to your request for a prospective ruling under the Harmonized Tariff
Schedule of the United States (HTSUS) for unfinished fiberglass fish blanks (subject
merchandise). Your request was forwarded by the National Commodity Specialist Division to
this office for a response.
FACTS:
The products at issue are unfinished fiberglass fish blanks. These items are molded
overseas using fiberglass and epoxy resin, then shipped to the United States, where they are
hand-finished and painted by marine artists. The fish blanks are not designed to be taken apart or
labeled to show the internal organs of the fish. The complete product is a highly realistic,
anatomically correct replica of specific marine species, created to full scale and built for public
display and decorative appeal. While some of the unfinished fiberglass blanks are installed in
museums and aquariums, the majority are used by conservation-minded anglers and brands who
display them in public or commercial settings as visual representations of ethical fishing
practices. You also note that in some cases, the mounts are used in educational exhibits with
signage or supplementary materials, but in many cases, their role is purely visual, allowing
viewers to appreciate the form, scale, and beauty of a species without harming the animal.
ISSUE:
Whether the subject merchandise is classified in heading 3926, HTSUS, as other plastic
articles, or in heading 9023, HTSUS, as demonstrational instruments.
LAW AND ANALYSIS:
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. GRI 2(a)
provides the following:
Any reference in a heading to an article shall be taken to include a reference to that article
incomplete or unfinished, provided that, as entered, the incomplete or unfinished article
has the essential character of the complete or finished article. It shall also include a
reference to that article complete or finished (or falling to be classified as complete or
finished by virtue of this rule), entered unassembled or disassembled.
The HTSUS provisions under consideration are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914
3926.40.00 Statuettes and other ornamental articles…
* * *
9023.00.00 Instruments, apparatus and models, designed for demonstrational purposes (for
example, in education or exhibitions), unsuitable for other uses, and parts and
accessories thereof…
Note 2 to Chapter 39 states the following, in relevant part:
This chapter does not cover:
(u) Articles of chapter 90 (for example, optical elements, spectacle frames, drawing
instruments)….
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).
Heading 9023 describes “instruments, apparatus and models” which are “designed for
demonstrational purposes” and are “unsuitable for other uses.” 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:
2
(1) 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).
(2) 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.
(3) 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.
(4) 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.
(5) 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).
(6) Models, etc., for artillery training, used in training courses held indoors.
(7) Prepared slides for microscopic study.
(8) Models of towns, public monuments, houses, etc. (of plaster, paperboard, wood,
etc.).
(9) 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.
* * *
Chapter 39, Note 2(u) states that articles of Chapter 90 cannot be classified in Chapter 39.
As such, our initial analysis is whether the subject merchandise is classifiable as an instrument,
apparatus or model, designed for demonstrational purposes of heading 9023, HTSUS.
Heading 9023 and EN 90.23 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
3
and HQ H042579, dated October 27, 2010 (both citing Oxford English Dictionary definition of
“demonstrate,” as well as the 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”).
The subject unfinished fish blanks are not “designed for demonstrational purposes.”
Instead, they are visual additions to schools, museums or homes, i.e., they are decorative objects.
They are not designed to be cut or taken apart or labeled to show the internal organs of the fish.
The unfinished fish blanks do not illustrate or explain the anatomy, characteristics or mechanics
of a fish. While you state that the unfinished fish blanks can be installed in museums and
aquariums, you also note that the majority of the unfinished fish blanks are displayed in public or
commercial settings. As a result, the unfinished fish blanks are display pieces that serve as a
visual enhancement in a public or commercial setting rather than a demonstrational or teaching
device. Therefore, the unfinished fish blanks are not classifiable in heading 9023, HTSUS.
The subject unfinished fish blanks are constructed of fiberglass and epoxy resin. They
are decorative and commercial articles made of plastic. Heading 3926, HTSUS provides for in
relevant part “other articles of plastics” and subheading 3926.40 provides for “[s]tatuettes and
other ornamental articles.” Since the unfinished fish blanks are plastic display fish used in
commercial establishments, they are classifiable in subheading 3926.40, HTSUS.
Our decision is consistent with Headquarters Ruling HQ H188945 (dated May 9, 2016),
where CBP affirmed New York Ruling N141939 (dated October 5, 2011). The merchandise in
HQ H188945/NY N141939 were glass reinforced plastic fish blanks which were created in
molds to simulate game fish such as sail fish, marlin and swordfish. While the manufacturing
process in HQ H188945/NY N141939 may be slightly different than the hand-crafted
4
workmanship of the fish blanks in the present case, both products are nearly identical in use and
in their condition as imported. Like the fish blanks in HQ H188945/NY N141939, the subject
unfinished fish blanks are fish statuettes used in commercial settings for their decorative appeal.
As we noted in NY N141939, the fish blanks are “plastic display fish”; the same conclusion
applies to the subject merchandise, and we consider this question to be settled. Therefore, the
subject unfinished fish blanks are also classifiable in heading 3926, HTSUS, and specifically in
subheading 3926.40, HTSUS.
Finally, we note that after importation to the United States, the subject unfinished fish
blanks are hand-finished and painted by marine artists. Per GRI 2(a), we conclude that the
unfinished fish blanks have the essential character of finished fish blanks. As such, the
unfinished fish blanks are classifiable in subheading 3926.40, HTSUS.
HOLDING:
By application of GRIs 1, 2(a) and 6, the subject merchandise is classified in heading
3926, HTSUS, and specifically in subheading 3926.40, HTSUS, which provides for “Other
articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other
ornamental articles.” The column one, general rate of duty for merchandise of this subheading is
5.3% ad valorem.
This ruling does not address the applicability of any additional duties that may apply to
the goods discussed herein. Likewise, 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 on the World Wide Web at www.usitc.gov.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations
(19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided
with the entry documents filed at the time this merchandise is imported.
Sincerely,
Gregory Connor, Branch Chief
Electronics, Machinery, Automotive, and
International Nomenclature Branch
5