CLA-2 RR:CR:GC 960657 PH

Port Director of Customs
1000 2nd Avenue
Seattle, Washington 98104-10409

RE: Protest 3001-97-100168; toothpick holder; toothpicks; tableware; other household articles; GRIs 2(b); 3(b); ENs GRI Rule 3(b)(VII), (VIII), (IX); 69.11; 69.12; common and commercial meaning; ejusdem generis; United States v. Butler Bros., 33 CCPA 22 (1945); M. Pressner & Co. v. United States, 2 Cust. Ct. 763, Abstract 51652 (1939); Nippon Kogaku, Inc. v. United States, 69 CCPA 89 (1982); Nylos Trading Company v. United States, 37 CCPA 71 (1949); Winter-Wolff, Inc., v. United States, CIT Slip Op. 98-15; Sports Graphics, Inc. v. United States, 24 F.3d 1390 (Fed. Cir. 1994); F. L. Smidth & Co. v. United States, 56 CCPA 77 (1969); House Conf. Report 100-576, April 20, 1988; NYs A88963; 838469 Dear Port Director:

This is our decision on protest 3001-97-100168, against your classification under the Harmonized Tariff Schedule of the United States (HTSUS) of certain porcelain toothpick holders with toothpicks. A sample was provided.

FACTS:

The merchandise is invoiced as "PORCELAIN MILK CAN TOOTHPICK HOLDER W/12 PCS TOOTHPIC[K]S". The sample is in the shape of a miniature milk can, approximately 2 and 1/4 inches high, with an outside diameter at the base of approximately 1 and 3/4 inches and at the opening of approximately 1 inch. There is a country scene, with a cow, affixed to the article. Twelve wooden toothpicks, wrapped in cellophane, are included with the sample.

The merchandise was entered on September 2, 1996, with classification under subheading 6911.10.80, HTSUS. The entry was liquidated (under "no change" liquidation procedures) on December 13, 1996, as entered.

The importer's broker filed this protest with Customs on March 12, 1997, against the classification of the merchandise. Citing General Rule of Interpretation (GRI) 3(b), the protestant contends that the essential character of the article is imparted by the toothpick holder, on the basis of the "much greater value and ornate design of the porcelain toothpick holder as compared to the 12 toothpicks." Citing New York (NY) ruling A88963 dated November 12, 1996, the protestant contends that toothpick holders such as those under consideration would be principally used in the household area and not restricted to table or kitchen use and, accordingly, should be classified as other household articles of porcelain in subheading 6911.90.00, HTSUS.

The subheadings under consideration are as follows:

4421.90.50: Other articles of wood: ... Other: ... Toothpicks, skewers, candy sticks, ice cream sticks, tongue depressors, drink mixers and similar small wares: Toothpicks.

The 1996 general column one rate of duty for goods classifiable under this provision is 2.5% ad valorem.

6911.10.80: Tableware, kitchenware, other household articles and toilet articles, of porcelain or china: Tableware and kitchenware: ... Other: ... Other: ... Other: ... Other.

The 1996 general column one rate of duty for goods classifiable under this provision is 25% ad valorem.

6911.90.00: Tableware, kitchenware, other household articles and toilet articles, of porcelain or china: ... Other.

The 1996 general column one rate of duty for goods classifiable under this provision is 7.6% ad valorem.

ISSUE:

Whether the toothpick holder and 12 toothpicks are classifiable as toothpicks in subheading 4421.90.50, HTSUS, other tableware of porcelain or china in subheading 6911.10.80, HTSUS, or other household articles of porcelain or china in subheading 6911.90.00, HTSUS.

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is protestable (see 19 U.S.C. 1514(a)(2) and (5) and LG Electronics U.S.A., Inc., v. United States, 991 F. Supp. 668 (CIT 1997), distinguishing between "automatic liquidation" and "no change liquidation" procedures and holding the latter to be protestable decisions under 19 U.S.C. 1514).

Classification of merchandise under the HTSUS is governed by accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 states in part that, for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6. GRI 2(b) provides that any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances, any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance, and the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3. GRI 3(b) provides that when goods are prima facie classifiable under two or more headings, classification of mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale which cannot be classified by reference to GRI 3(a) (by reference to the heading which provides the most specific description), shall be classified as if they consisted of the material or component which gives them their essential character.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).

EN GRI Rule 3(b)(VII) and (VIII) state:

(VII) In all these cases [including composite goods consisting of different materials or components] the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

The merchandise under consideration is a composite good consisting of different components (the toothpick holder and the toothpicks) prima facie classifiable under two different headings (the toothpicks under heading 4421, HTSUS; the toothpick holders under heading 6911, HTSUS) (see the examples in EN GRI Rule 3(b)(IX)). The protestant concedes that the essential character of the merchandise is provided by the toothpick holder, on the basis of its value compared to the toothpicks and its ornate design. In the absence of any evidence to the contrary (e.g., addressing the criteria set forth in EN GRI Rule 3(b)(VIII), above), we so hold. Accordingly, pursuant to GRI 3(b), the merchandise is classifiable as if it consisted of the toothpick holders only.

Tariff terms are to be construed in accordance with their common and commercial meanings which are presumed to be the same (Nippon Kogaku, Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380 (1982); see also Nylos Trading Company v. United States, 37 CCPA 71, 73, C.A.D. 423 (1949), and Winter-Wolff, Inc., v. United States, CIT Slip Op. 98-15 (Customs Bulletin and Decisions, March 25, 1998, vol. 32, no. 12, 71, at 74, "When, however, a tariff term is not clearly defined by the statute or its legislative history, it is also fundamental that the correct meaning of the tariff term is presumed to be the same as its common or dictionary meaning in the absence of evidence to the contrary'"). The dictionary definition of "tableware" is "china, glassware, silver, and other utensils used for setting a table or serving food and drink" (Webster's Third New International Dictionary of the English Language, Unabridged (1993), tableware; see also Random House Unabridged Dictionary (2d. Ed., 1993), tableware "the dishes, utensils, etc., used at the table").

In interpreting the term "tableware" in previous tariff schedules, the Courts have relied upon the dictionary definition of the term (see United States v. Butler Bros., 33 CCPA 22, C.A.D. 310 (1945); United States v. The Baltimore & Ohio R.R. Co., 47 CCPA 1, C.A.D. 719 (1959); W. Kay Company, Inc. v. United States, 53 Cust. Ct. 130, C.D. 2484 (1964). In Butler Bros. (supra at 28), described as "the leading case" in W. Kay Company (supra at 136), the Court stated:

We think it is evident from the dictionary definitions of the term "tableware" that in using that term in paragraph 212, supra, the Congress intended to provide for only such articles as are chiefly used upon a table for the service of meals ....

In W. Kay Company (supra at 136-137), the Court lists a number of articles which had been held not to be tableware under the then applicable tariff schedules. Among those articles are decorated china toothpick holders, in the case of M. Pressner & Co. v. United States, 2 Cust. Ct. 763, Abstract 41652 (1939).

Although decisions by the Courts interpreting the TSUS are not to be deemed dispositive in interpreting the HTS, "... on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS" (House Conf. Report 100-576, April 20, 1988, pp. 549-550, 100th Cong., 2d Sess. (1988 U.S.C.C.A.N. 1547, 1582-1583); see also F. L. Smidth & Co. v. United States, 56 CCPA 77, 80, C.A.D. 958, 409 F.2d 1369 (1969)). Use of the cited Court cases to interpret the term "tableware" is consistent with the foregoing. Further, the interpretation of the term in the cited Court cases is consistent with the common, dictionary definition of the term, in fact the interpretation is based on that definition (see Nippon Kogaku and other cases cited supra, for the proposition that tariff terms are to be construed in accordance with their common and commercial meanings which are presumed to be the same).

A "holder" is be defined as "a device or contrivance by which or a container in which something is held" (Webster's Third New International Dictionary, supra, holder; see also Random House Unabridged Dictionary, supra, holder "something that holds or secures"). A "toothpick" is defined as "a slender pointed piece of wood used after eating to remove bits of food lodged between the teeth [or] a similar instrument of metal, bone, or plastic used for picking the teeth and cleaned for reuse" (Webster's Third New International Dictionary, supra, toothpick; see also Random House Unabridged Dictionary, supra, toothpick "a small pointed piece of wood, plastic, etc., for removing substances, esp. food particles, from between the teeth"). Thus, "when [these definitions are] cobbled together" (see Winter-Wolff, supra at 79), the term "toothpick" may be defined as "something in which is held a slender pointed piece of wood, plastic, or bone for removing substances, especially food, from between the teeth."

Thus, although a toothpick holder may be placed on the table (or alternatively, it may not be placed on the table; see, e.g., M. Pressner & Co., supra, in which the Court found that the toothpick holders were "used on knick-knack tables and shelves"), it is not used "for setting a table or serving food and drink" ("setting a table" is defined as "to distribute or arrange china, silver, etc., for use on (a table): to set the table for dinner" (Random House Unabridged Dictionary, supra, set). In fact, a toothpick holder is used for holding toothpicks which are used after food or drink is served, or may be used for removing substances other than food from the teeth (i.e., they may not be connected with food (see Random House Unabridged Dictionary definition of "toothpick", supra).

The exemplars in EN 69.12 (EN 69.11 refers to EN 69.12, which describes the merchandise covered by both headings) for tableware are consistent with the dictionary definition of "tableware" and with treating toothpick holders as other than tableware. Heading 69.11 states, in part:

The headings [i.e., headings 69.11 and 69.12] therefore include:

(A) Tableware such as tea or coffee services, plates, soup tureens, salad bowls, dishes and trays of all kinds, coffee-pots, teapots, sugar bowls, beer mugs, cups, sauce-boats, fruit bowls, cruets, salt cellars, mustard pots, egg-cups, teapot stands, table mats, knife rests, spoons and serviette rings.

Each of these exemplars is an article "... used for setting a table or serving food and drink" (Webster's Third New International, supra, tableware). That (i.e., setting a table or serving food and drink) is the essential characteristic which unites the exemplars listed in EN 69.12. Based on the definitions of tabaleware and toothpick holders (see above), toothpick holders are not ejusdem generis with the tableware exemplars listed in EN 69.12.

The Courts describe the rule of ejusdem generis, as applied to tariff classification cases, as follows:

Under the rule of ejusdem generis, which means "of the same kind," where an enumeration of specific things is followed by a general word or phrase, the general word or phrase is held to refer to things of the same kind as those specified. ... As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms. [Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1392 (Fed. Cir. 1994), citing Nissho-Iwai Am. Corp. v. United States, 10 CIT 154, 157, 641 F. Supp. 808 (1986)]

Thus, the applicable EN, as interpreted under the rule of ejusdem generis, supports the dictionary definition and Court interpretations of the term tableware under past tariff schedules in precluding classification of the toothpick holders as tableware in subheading 6911.10.80, HTSUS. We conclude that the toothpick holders are classifiable as other household articles in subheading 6911.90.00, HTSUS.

HOLDING:

The toothpick holder and 12 toothpicks are classifiable as other household articles of porcelain or china in subheading 6911.90.00, HTSUS.

The protest is GRANTED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed, with the Customs Form 19, by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the 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.

Sincerely,

John Durant, Director,
Commercial Rulings Division