CLA-2 CO:R:C:F 954332 K
TARIFF No.: 9505.10.25; 3926.40.00
District Director of Customs
610 S. Canal Street
Chicago, Illinois 60607
RE: Application For Further Review of Protest No. 3901-93-100009;
Mushroom Birds and Houses
Dear Sir:
The following is our decision in response to the referral by
the Assistant District Director, Commercial Operations, dated June
4, 1993, of the request for further review of the above-referenced
protest.
FACTS:
Ten consumption entries, , , , ,
, , , , , and 2, covering
imported mushroom birds and houses, were liquidated between the
dates of September 25 and December 4, 1992, and a timely protest
was filed on December 14, 1992. The protest does not cover any
other consumption entry that was timely protested within ninety
days after the date of liquidation as required by 19 U.S.C. 1514.
The consumption entries listed above covering mushroom articles
were liquidated under subheading 0604.99.60, Harmonized Tariff
Schedule of the United States (HTSUS), as other parts of plants,
without flowers or flower buds, being goods of a kind suitable for
bouquets or for ornamental purposes, not fresh, not dried, with
duty at the rate of 11 percent ad valorem. The protestant claims
that the merchandise is classifiable under heading 0604 as dried
plants, subheading 0604.99.30, free of duty or in the alternative
as articles for Christmas festivities, other than of glass or wood,
subheading 9505.10.25, dutiable at 5 percent ad valorem.
The merchandise is described as mushroom birds and houses
which are handmade from dried mushrooms and other component
materials. The inner bodies of the birds are made of Dylite
(styrofoam) and the outer bodies of the birds are covered by wood
fibers. Mushrooms, selected for their layered appearance, are
-2-
boiled, dried, and sliced paper thin. Thin pieces of mushrooms
are cut into wing, crown, and tail shapes and glued onto the
bodies. The pieces are held in place with pins until dry. Seeds
are glued onto the bodies for eyes. The birds range in sizes from
1-1/2 to 3-1/2 inches and are painted with water colors. The birds
contain no strings or hooks for hanging. Photostats from a catalog
indicate that the birds are used in floral displays and advertised
in the catalog as "Mushroom Birds".
The mushroom houses depicted in the catalog measure
approximately 3 x 4 x 1-1/2 inches and are made in a similar manner
with the use of dried mushrooms and wood fibers. Generally, the
roofs of the houses contain the thin pieces of dried mushrooms.
The mushroom houses depicted in the catalog contain strings for
hanging.
ISSUE:
The issue is whether the mushroom articles are classifiable
under heading 0604, HTSUS.
LAW AND ANALYSIS:
The classification of imported merchandise under the HTSUS is
governed by the principles set forth in the General Rules of
Interpretation (GRI). GRI 1 requires that classification be
determined first according to the terms of the headings of the
tariff schedule and any relative section and chapter notes and,
unless otherwise required, according to the remaining GRI, taken
in their appropriate order. Accordingly, we first have to
determine whether the articles are classified under GRI 1.
Heading 0604, HTSUS, covers foliage, branches and other parts
of plants, without flowers or flower buds, and grasses, mosses and
lichens, being goods of a kind suitable for bouquets or for
ornamental purposes, fresh, dried, dyed, bleached, impregnated or
otherwise prepared. The Explanatory Notes to the Harmonized
Commodity Description and Coding System (EN), a guideline for use
in determining classification under HTSUS, states that "this
heading covers not only foliage, branches, etc., as such, but also
bouquets, wreaths, floral baskets and similar articles
incorporating foliage or parts of trees, shrubs, bushes or other
plants, or incorporating grasses, mosses or lichens. Provided that
such bouquets, etc., have the essential character of florists'
wares, they remain in the heading even if
they contain accessories of other materials (ribbons, wire frames,
etc.)."
The articles described under the protest do not consist of
foliage, branches and other parts of plants suitable for bouquets
or ornamental purposes. The articles described under the protest
are finished articles in which one of the components consists of
-3-
thin sliced pieces of boiled-dried mushrooms. The finished
articles represent considerable artistic work in the assembly of
the thin sliced pieces of dried mushrooms to the styrofoam bird
bodies and the subsequent decorations. We are satisfied that the
merchandise is not covered under heading 0604.
Subheading 9505.10.25, HTSUS, provides for other festive
Christmas ornaments (other than of glass or wood), with duty at 5
percent ad valorem. The EN for heading 9505 states articles made
for Christmas trees are classified under this heading. The
mushroom houses have strings attached to them to hang them on a
tree and are not too big or heavy to be hung on a tree. The
mushrooms houses with the attached strings are classified by virtue
of GRI 1 under subheading 9505.10.25.
The mushroom birds which do not have strings or hooks for tree
hanging are not classified under subheading 9505.10.25 and we are
satisfied that the birds cannot be classified according to the
terms of the other headings of the tariff. Since the mushroom
birds cannot be classified by virtue of GRI 1, then we proceed to
the next GRI. GRI 2(b) requires that the "classification of goods
consisting of more than one material or substance shall be
according to the principles of rule 3." GRI 3(b) is applicable for
goods made up of different components and that rule requires that
"...composite goods of different materials or made up of different
components...which cannot be classified by reference to 3(a), shall
be classified as if they consisted of the material or component
which gives them their essential character, insofar as this
criterion is applicable."
The mushroom pieces and the styrofoam (plastic) in the form
of birds are the competing components that may consist of the
material or component which gives the birds their essential
character. We conclude that the mushroom pieces and the plastic
birds are equally essential in character. Accordingly, the
mushroom birds cannot be classified by reference to GRI 3(b).
GRI 3(c) provides that "when goods cannot be classified by
reference to 3(a) or (b), they shall be classified under the
heading which occurs last in numerical order among those which
equally merit consideration."
The subheadings which equally merit consideration for the
mushroom birds are subheading 1404.90.00, that provides for other
vegetable products (mushrooms) not elsewhere specified or
included, free of duty, and 3926.40.00, that provides for other
articles of plastics (the styrofoam in the form of birds),
statuettes and other ornamental articles, with duty at 5.3 percent
ad valorem. Accordingly, the mushroom birds are classified by
reference to GRI 3(c) under subheading 3926.40.00.
-4-
HOLDING:
The mushroom houses as described above are classifiable as
"festive, carnival or other entertainment articles, ...: Articles
for Christmas festivities and parts and accessories thereof:
Christmas ornaments: other: other", subheading 9505.10.25, HTSUS,
with duty at the general rate of 5 percent ad valorem.
The mushroom birds as described above are classifiable by
reference to GRI 3(c), as statuettes and other ornamental articles
of plastics, subheading 3926.40.00, HTSUS, with duty at the general
rate of 5.3 percent ad valorem.
You are directed to deny the protest in part and allow the
protest in part on the basis of this decision as follows.
The protest should be denied for classification of the
mushroom houses under subheading 0604.99.30, HTSUS. However, the
protest is allowed under the alternative claim for classification
of the mushroom houses as other festive Christmas ornaments (other
than glass or wood), subheading 9505.10.25, HTSUS, with duty at 5
percent ad valorem.
The protest should be denied for the claim of classification
of the mushroom birds under subheading 0604.99.30, HTSUS, or under
the alternative claim for subheading 9505.10.25, HTSUS. However,
final liquidation should reflect the correct rate of duty under
subheading 3926.40.00, HTSUS.
In accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, Revised Protest Directive, dated August 4, 1993, a copy
of this decision attached to Customs Form 19, Notice of Action,
should be provided by your office to the protestant no later than
60 days from the date of this decision and any reliquidation of
entries in accordance with this decision must be accomplished prior
thereto. Sixty days from the date of this decision the Office of
Regulations and Rulings will take steps to make this decision
available to Customs personnel via the Customs Rulings Module in
ACS and the public via the Diskette Subscription Service, Lexis,
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division