HQ 0954332 - Application For Further Review of Protest No. 3901-93-100009; Mushroom Birds and Houses - United States International Trade Commision Rulings

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HQ 954332

March 15, 1994

CLA-2 CO:R:C:F 954332 K

CATEGORY: CLASSIFICATION

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
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
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.

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

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