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HQ 956065


July 25, 1994

CLA-2 CO:R:C:F 956065 K

CATEGORY: CLASSIFICATION

TARIFF No.: 3926.40.00

Ms. Elizabeth Mince
Import Manager
Atlanta Customs Brokers
5099 Southridge Parkway, Suite 116
Atlanta, Georgia 30349

RE: Classification of Mushroom Ornamental Articles

Dear Ms. Mince:

This is in response to your request of January 5, 1994, for a ruling for ornamental articles, styrofoam-mushroom ornamental articles. A catalogue depicting various types of mushroom ornamental articles, a page taken from a floral retailer's catalogue depicting miniature mushroom birds sitting on tree stems, and a sample mushroom bird were submitted. Our ruling is limited to the articles as represented by the submitted sample of a mushroom bird and the specifications listed in your letter.

FACTS:

The sample bird measures approximately 1-1/2 x 2 inches (plus a 1 inch tail). The body of the bird is made of styrofoam (plastics). White paper made of wood fibre wraps the body. Dried paper thin pieces of mushrooms are glued onto the body in the form of wings and tails. The material for the eyes and mouth was not stated. The bird is painted and decorated with various colors and has a flat bottom. The bird contains no strings or hooks for hanging purposes such as ornaments for Christmas trees.

ISSUE:

What is the tariff classification of the mushroom birds as described above.

LAW AND ANALYSIS:

The classification of imported merchandise under the Harmonized Tariff Schedule of the United States (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.

We first consider whether the birds consisting of dried plants (mushrooms) are classifiable under heading 0604, HTSUS, which 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 mushroom birds do not consist of foliage, branches and other parts of plants suitable for bouquets or ornamental purposes. The mushroom birds 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 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 (plastics) 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.

Customs Headquarters Ruling Letters 954674 and 954332 dated March 15, 1994, and 955452 dated March 17, 1994, are cited and followed.

Sincerely,

John Durant, Director

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