CLA-2 OT:RR:CTF:TCM H005207 JER
Mr. Joe Schmid
JS International
Custom House Broker
110 West Ocean Blvd., Suite 307
Long Beach, CA 90802
RE: Classification of Porcelain, China and Ceramic Toothpick Holders;
Revocation of NY A88963
Dear Mr. Schmid:
This is in regard to New York Ruling Letter (NY) Ruling A88963, dated November 12, 1996 issued to you for the tariff classification of the above captioned product under the Harmonized Tariff Schedule of the United States (HTSUS). In that ruling, U.S. Customs and Border Protection (CBP) determined that the product referred to as “The Porcelain Toothpick Holder” was classified in heading 6911, HTSUS, specifically subheading 6911.90.00, HTSUS, which provides, in relevant part, for household articles of porcelain or china.
We have recently revisited this issue and for the reasons set forth below, CBP presently considers a “Toothpick Holder” made of porcelain or china to be classified under heading 6911, HTSUS and specifically subheading 6911.10.80 HTSUS, as other tableware and kitchenware of porcelain or china. Likewise, a toothpick holder made of ceramic shall be classified under subheading 6912.00.48, HTSUS, as other tableware and kitchenware not of porcelain or china.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY A88963 was published on May 7, 2008, in the Customs Bulletin, Volume 42, Number 20. No comments were received in response to the proposed revocation.
FACTS:
The merchandise in issue was described as a porcelain toothpick holder.
ISSUE:
Whether a “Toothpick Holder” should be classified as tableware, kitchenware under subheading 6911.10.80, HTSUS, or as other household article under subheading 6911.90.00, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
When the subheadings, rather than the headings are at issue, GRI 6 is applied. GRI 6 provides in pertinent part that: “the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to [rules 1 through 5] on the understanding that only subheadings at the same level are comparable for the purposes of this rule and the relative section and chapter notes also apply, unless the context otherwise requires.”
The HTSUS headings and subheadings under consideration are as follows:
6911 Tableware, kitchenware, other household articles and toilet articles, of porcelain or china:
6911.10 Tableware and kitchenware:
Other:
Other:
Other:
* * *
6911.10.80 Other
* * *
6911.90.00 Other
6912.00 Ceramic tableware, kitchenware, other household articles and toilet articles, other than porcelain or china:
Tableware and kitchenware:
Other:
Other:
Other:
* * *
6912.00.48 Other
* * *
6912.00.50 Other
* * *
NY A88963 based its classification on the rationale that a toothpick holder could be located in any room of the house (not just the kitchen) and therefore classified the product under the provision for other household articles rather than as tableware or kitchenware. The decision in NY A88963 narrowly construed the scope of the heading and thereby failed to give meaning to terms of the heading as indicated in the Explanatory Notes to heading 6911, HTSUS. As a result, NY A88963 reasoned that a toothpick holder should be treated as an item within the same class or kind as utilitarian household articles of heading 6911, HTSUS.
In cases where a term is not defined in the section notes, chapter notes or the ENs of the HTSUS, it is construed in accordance with its common and commercial meaning. Unless a contrary legislative intent is shown, tariff terms are construed in accordance with their common and commercial meanings, which are presumed to be the same. Nippon Kogaku (USA), Inc. v. United States, 673 F.2d 380, 382 (1982); Schott Optical Glass, Inc. v. United States, 612 F.2d 1283, 1285 (1979). Absent an express definition, however, dictionaries, lexicons, scientific authorities, and other such reliable sources may be consulted to determine common meaning. C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271 (1982). By definition, the term tableware includes those items traditionally used in serving food or associated with table settings. See Webster’s Collegiate Dictionary, 1195, 10th ed., (2001) (tableware is defined as: “utensils {as of china, glass or silver} for table use).” The definition of kitchenware is, “utensils and appliances for use in a kitchen.” Webster’s Collegiate Dictionary at 643. Moreover, a “toothpick” is defined as a “slender pointed piece of wood used after eating to remove food lodged between the teeth.” Webster’s Third New International Dictionary of the English Language, Unabridged (1993). A “holder” is defined as a “device or container in which something is held.” Id. It follows that the common and commercial meaning of a toothpick holder firmly suggests that its primary usage is associated with foods and that its primary location is therefore associated with kitchen areas if not the dining table.
In addition to the dictionary definitions, the exemplars set forth in the Explanatory Notes (“ENs”) to heading 6911, HTSUS, indicate the type of goods considered to be within the class or kind classifiable as tableware and kitchenware. The ENs to heading 6911, HTSUS, while not legally binding or dispositive, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.
The ENs to heading 6912 (and by reference to heading 6911) HTSUS, state in pertinent part that:
[t]he headings therefore include:
(A) Tableware such as tea or coffee services, plates, soup tureens, salad bowls, dishes…sugar bowls, beer mugs, cups…salt cellars, mustard pots, egg-cups, teapot stands, table mats, knife rests, spoons and serviette rings.
(B) Kitchenware such as stew-pans, casseroles of all shapes and sizes, baking or roasting dishes, basins, pastry or jelly moulds, kitchen jugs, preserving jars, storage jars and bins (tea caddies, bread bins, etc.), funnels, ladles, graduated kitchen capacity measures and rolling-pins.
(C) Other household articles such as ashtrays, hot water bottles and matchbox holders.
According to the ENs to heading 6911, HTSUS, and dictionary definitions, tableware and kitchenware of this heading are articles immediately associated with food preparation, food storage and food consumption. Unlike household articles, the articles listed in the ENs to heading 6911, HTSUS, as tableware and kitchenware, can be used in a variety of table and kitchen related functions. For instance, such merchandise can be used in the preparation of food and beverage items or act as table settings. These articles may also store or display foods as well as serve food and beverage items.
In HQ 087602, dated, February 13, 1991, we noted that the ENs to heading 6911, HTSUS, distinguish between household articles and kitchenware articles. Whereas the latter category includes such sundries as ashtrays, hot water bottles and the like, the subject provision covers kitchenware such as storage jars, measuring utensils and baking dishware. Likewise, in NY R03430, dated March 29, 2006, CBP classified a toothpick holder made of ceramic in heading 6912, HTSUS, and specifically subheading 6912.00.48, HTSUS, as tableware and kitchenware. We stated in NY R03430, that the article was intended to be placed on a (kitchen) table, countertop or the like.
In order to fully discern whether the instant toothpick holder is classifiable as a household article or more appropriately as tableware and kitchenware, we refer to the statutory construction known as the rule of ejusdem generis. In Sports Graphics, Inc. v. United States, the Court noted that:
“As applicable to classification cases, ejusdem generis (which means “of the same kind”) requires that the imported merchandise possess the essential character or purpose that unite the articles enumerated eo nomine, in order to be classified under the general terms. (24 F. 3D 1390, 1392,Fed. Cir 1994), citing Nissho-Iawi Am. Corp. v. United States, 10 CIT 154, 157, 641 F. Supp. 808 (1986).
Those articles enumerated eo nomine (which means “by name”) in the ENs to heading 6912, HTSUS (and by reference, 6911, HTSUS) among other things, have as their primary purpose(s) to hold, display, store, prepare and serve food items. Without question, toothpicks are used in connection with the consumption of foods, with the serving of hors d’oeurves, mixed drinks and for removing food particles from between the teeth. Additionally, according to our research, toothpick holders are marketed in retail sections under kitchenware, cookware or dinning. Hence, the character and purpose of this item suggests that it be used in close connection with dinning areas, food and beverage preparation or consumption.
The U.S. Court of International Trade (CIT) has provided factors to apply when determining whether merchandise falls within a particular class or kind. They include among other things: “general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale, use in the same manner as merchandise which defines the class … and recognition in the trade of this use.” See Kraft, Inc. v. United States, USITR, 16 CIT 483, (June 24, 1992). Insofar as the use of a toothpick holder is associated with dining, food preparation and food consumption, it would appear that this merchandise falls within the class or kind of those articles enumerated eo nomine in heading 6911, HTSUS, as tableware and kitchenware. Conversely, a toothpick holder is not used in a manner similar to an ashtray, hot water bottle or other utilitarian household articles. Instead it is used in a substantially similar manner as other merchandise classified as either tableware or kitchenware.
CBP has on several occasions ruled that items closely connected with serving food, storing certain foods and merchandise ancillary to other kitchen or table articles, are merchandise classifiable as either tableware or kitchenware. For example, in NY A81749, dated May 14, 1996, we stated that a porcelain tea bag holder was tableware of heading 6911, HTSUS, despite its limited association with the actual consumption of tea. Likewise, in NY N006490, we classified a ceramic condiment bowl as tableware in heading 6912, HTSUS. These items are of the same class or kind enumerated in the headings at issue as either tableware or kitchenware.
By contrast, we have classified certain (ceramic) articles unassociated with food consumption, food storage or food preparation under heading 6912, HTSUS, as other household articles. For example, in NY 885897, dated June 15, 1993, CBP classified a ceramic “memo holder” as a household article of heading 6912, HTSUS. Similarly, in HQ 964364, dated January 9, 2001, CBP classified a ceramic “Treasured Heart Box” as a household article of heading 6912, HTSUS. Likewise, in NY 818767, dated February 26, 1996, we classified a hand-held “teddy bell” as a household article of heading 6912, HTSUS, because its functional purpose was that of a household bell.
We find that the scope of the heading as indicated by the ENs to heading 6911, HTSUS, demonstrate a distinction between household articles and articles classifiable as either tableware or kitchenware. We do not agree that a toothpick holder is a general household item located in any area of the house. By contrast, we find that the expectation of the consumer would in all reasonable contemplation, not place a toothpick holder in a den, bedroom or study but rather in the kitchen area or dinning area. Based on the analysis above, we find that a toothpick holder is ejusdem generis with those articles enumerated eo nomine in heading 6911, HTSUS, and by reference, heading 6912, HTSUS, and therefore is classifiable as tableware and kitchenware.
HOLDING:
For the reasons set forth above and by application of GRI 1, the subject “Porcelain Toothpick Holder” is classified under heading 6911, HTSUS, and specifically subheading 6911.10.80 which provides for: “Tableware, kitchenware, other household articles and toilet articles, of porcelain or china: Tableware and kitchenware: Other: Other: Other: Other.” The 2008 column one, general rate of duty is 20.8% ad valorem.
By application of GRI 1, a “Ceramic Toothpick Holder” is classified in heading 6912 HTSUS, and specifically subheading 6912.00.48 which provides for: “Ceramic tableware, kitchenware, other household articles and toilet articles, other than porcelain or china: Tableware and kitchenware: Other: Other: Other: Other.” The 2008 column one, general rate of duty is 9.8% ad valorem.
EFFECT ON OTHER RULINGS:
NY Ruling Letter A88963, dated November 12, 1996, is hereby revoked. In accordance with 19 USC §1625 (c), this ruling will become effective 60 days after publication the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division