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HQ 956763


July 25, 1994

CLA-2 CO:R:C:F 956763 K

CATEGORY: CLASSIFICATION

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
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
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
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

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