CLA-2 CO:R:C:F 954674 K
TARIFF No.: 3926.40.00
District Director of Customs
610 S. Canal Street
Chicago, Illinois 60607
RE: Application For Further Review of Protest No. 3901-92-101557;
Mushroom Birds
Dear Sir:
The following is our decision in response to the referral by
the Assistant District Director, Commercial Operations, dated July
22, 1993, of the request for further review of the above-
referenced protest.
FACTS:
A consumption entry covering a shipment of mushroom birds was
liquidated on September 4, 1992, and a timely protest was filed on
December 2, 1992. The consumption entry was 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.
The merchandise is described as mushroom birds 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 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 purposes such as ornaments for
Christmas trees. Photostats from a catalog indicate that the
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birds are used in floral displays and advertised in the catalog
as "Mushroom Birds".
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
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.
We are also satisfied that since the mushroom birds do not
have strings or hooks for tree hanging they are not classified
under subheading 9505.10.25, HTSUS, as articles for Christmas
festivities, other than of glass or wood.
Since we conclude that 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
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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
bird bodies 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.
HOLDING:
The mushroom birds as described above are classifiable 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.
The protestant's position that the mushroom birds are
classified under subheading 0604.99.30, free of duty, is denied.
However, the protestant should have the benefit of this decision
with reliquidation of the entry covering the mushroom birds at the
correct classification 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 reliquidations 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
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ACS and the public via the Diskette Subscription Service, Freedom
of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division