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HQ 954674

March 15, 1994

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.


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
birds are used in floral displays and advertised in the catalog as "Mushroom Birds".


The issue is whether the mushroom articles are classifiable under heading 0604, HTSUS.


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
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.


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

ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.


John Durant, Director

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