CLA-2 CO:R:C:F 956763 K
TARIFF No.: 1404.90.0000; 3926.40.0000
Ms. Marty Langtry
Castelazo & Associates
Tower Group International, Inc.
5420 W. 14th Street
Los Angeles, California 90045-6069
RE: Classification of Mushroom Ornamental Articles
Dear Ms. Langtry:
This is in response to your request of October 13, 1993, for
a ruling for mushroom ornamental articles made in China (a similar
request of the same date was responded to on March 17, 1994,
955452). Four samples were submitted.
FACTS:
Sample No 1, MI20126 is an ornamental bark/mushroom house with
an 1/8 of an inch paperboard base upon which imitation shrubs and
a wooden fence are attached. The house is made of paperboard
approximately 5 x 4 x 3 inches in size and less than 1/8 inches in
thickness. The exterior walls of the house are covered with thin
slices of dried mushrooms and the roof is covered with thin pieces
of bark.
Sample No. 2, MI5830 is a birds nest containing two decorated
styrofoam birds approximately 1/2 x 1/2 inches in size. The nest
measures approximately 3-1/2 inches tall and 4 inches wide at the
top and it is made of twigs and vines. One side of the nest is
flat and the other side is in the shape of a half moon and covered
with 1/2 inch shell like pieces of dried mushrooms.
Sample No. 3, MI5690 is a bird sitting in a nest. The bird
measures approximately 3/4 x 3/4 inches in size and has a tail 1/2
inch wide and 3/4 inch long. The body of the bird is made of
styrofoam (plastics) and thin dried pieces of mushrooms are glued
onto the body in the form of wings and a tail. The bird is painted
and decorated with various colors. The nest is made of
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twigs and contains a wire about 6 inches in length extending from
the bottom. It appears that the wire stem is designed to use the
article in a floral display.
Sample 4, MI116, is a styrofoam bird approximately 1.5 x 1.5
inches, including the length of the tail. The wings and tail
consist of thin pieces of dried mushrooms. The bird contains a
wire stem similar to Sample No. 3.
None of the articles contain strings or hooks for hanging
purposes such as ornaments for Christmas trees. No information
was submitted containing a breakdown of the value and weight of
the component parts used to make the articles.
ISSUE:
What is the tariff classification of the mushroom ornamental
articles 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 articles which contain 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 articles do not consist of foliage, branches and
other parts of plants suitable for bouquets or ornamental purposes.
The articles are finished articles in which one of the components
consists of thin sliced pieces of boiled-dried mushrooms. The
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finished articles represent considerable artistic work in the
assembly of the thin sliced pieces of dried mushrooms to the
styrofoam bird bodies and onto the sides of the house and the
subsequent decorations. We are satisfied that the merchandise is
not covered under heading 0604.
We are also satisfied that since the mushroom articles 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.
Subheading 1404.90.0000, HTSUS, provides for other vegetable
products, and we are satisfied that the bark/mushroom house, sample
MI20126, by reference to GRI 1, is classified in subheading
1404.90.0000, HTSUS, which provides for other vegetable products
(mushrooms), free of duty.
However, since we conclude that the other mushroom articles
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 nest in sample no. 2, MI5830, made of twigs and plants
(mushrooms), would be classified in Subheading 1410.90.0000, which
provides for other vegetable products. The two birds in the nest
(which do not contain mushroom pieces) are made of styrofoam
(plastics) and would be classifiable in subheading 3926.40.0000,
HTSUS, which provides for other articles of plastics, statuettes
and other ornamental articles.
The nest in sample no. 3, MI5690, is made of twigs and would
be classifiable in subheading 1410.90.0000, HTSUS. The styrofoam
bird in the nest would be classifiable in subheading 3926.40.0000,
HTSUS, and the mushroom pieces in subheading 1414.90.0000, HTSUS.
The styrofoam bird in sample no. 4, MI116, would be
classifiable in subheading 3926.40.0000, HTSUS, and the mushroom
pieces in subheading 1410.90.0000, HTSUS.
The mushroom pieces, twigs and vines, and the styrofoam
(plastics) in the form of birds are the competing components that
may consist of the material or component which gives samples 2, 3,
and 4 their essential character. We conclude that the mushroom
pieces, twigs and vines, and the plastic bird bodies are equally
essential in character. Accordingly, the articles as
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represented by samples numbered 2, 3, and 4, 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." Accordingly, the articles are
classified by reference to GRI 3(c) under subheading 3926.40.0000,
HTSUS.
HOLDING:
Sample no. 1, MI20126, an ornamental bark/mushroom house is
classifiable in subheading 1404.90.0000, HTSUS, as other vegetable
products, free of duty.
Sample no. 2, MI5830, a birds nest with two birds, sample no,
3, MI5690, a bird in a nest, and sample no. 4, MI116, a styrofoam
mushroom bird, are classified by reference to GRI 3(c) in
subheading 3926.40.0000, HTSUS, as statuettes and other ornamental
articles of plastics, 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
Commercial Rulings Division