# HQ H005209

June 20, 2008

**CLA-2 OT:RR:CTF:TCM** H005209 JER

**CATEGORY:** Classification

**TARIFF NO.:** 6911.10.80; 6912.00.48

David G. Porter

Fingerhut Corporation

4400 Baker Road, Suite 228

Minnetonka, MN 55343

**RE:** Classification of Porcelain, China and Ceramic Toothpick
Holders;

> Revocation of HQ 960657

Dear Mr. Porter:

This is in regard to Headquarters Ruling Letter ("HQ") 960657, dated
June 9, 1998, issued for the tariff classification of the above
captioned products under the Harmonized Tariff Schedule of the United
States (HTSUS). In this ruling letter, U.S. Customs and Border
Protection (CBP) determined that the product referred to as a

"Toothpick Holder" was classifiable as other household articles in
subheading 6911.90.00, HTSUS, rather than as a tableware or kitchenware
articles in subheading 6911.10.80, HTSUS. Based on the decision in HQ
960657, subheading 6911.90.00 HTSUS would apply to a porcelain toothpick
holder and subheading 6912.00.50 would apply to a ceramic toothpick
holder.

HQ 960657 is a Headquarters ruling on Protest 3001-97-100168. Under [San
Francisco Newspaper Printing Co. v. United States]{.underline}, 9 CIT
517, 620 F. Supp. 738 (1985), the liquidation of the entries covering
the merchandise which was the subject of Protest 3001-97-100168 was
final on both the protestant and CBP. Therefore, this decision has no
effect on those entries.

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 HQ 960657
was published on May 7, 2008, in the [Customs Bulletin]{.underline},
Volume 42, Number 20. No comments were received in response to the
proposed revocation.

**FACTS:**

The merchandise in HQ 960657 was described as a porcelain milk can
toothpick holder and was in the shape of a miniature milk can. It was
described as having a one inch opening at the top and being
approximately 2 ¼ inches in height. There was a cow and country scene
depicted on the article. Twelve wooden toothpicks were included with the
sample.

**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 item consists of more than one component which in addition to the
toothpick holder includes twelve wooden toothpicks. Therefore, the item
is not specifically provided for at the heading level and cannot be
classified solely on the basis of GRI 1. HQ 960657 found that the
subject merchandise was a composite good consisting of different
components.

GRI 3 (b) provides that when, by application of rule 2(b), goods are,
*prima facie*, classifiable under two or more headings, classification
shall be effected as follows:

> \(b\) 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 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.

While not legally binding nor dispositive, the Explanatory Notes provide
a commentary on the scope of each heading of the HTSUS and are generally
indicative of the proper interpretation of these headings.
[See]{.underline} T.D. 89-80.

The ENs to GRI 3 (b) provide in pertinent part:

> \(IX\) For purposes of this Rule, composite goods made up of different
> components shall be taken to mean not only those in which the
> components are attached to each other to form a practically
> inseparable whole but also those with separable components,
> **provided** these components are adapted one to the other and are
> mutually complementary and that together they form a whole which would
> normally be offered for sale in separate parts.

The Explanatory Notes to GRI 3 (b) further provide in part:

> \(X\) For purposes of this Rule, the term "goods put up in sets for
> retail sale" shall be taken to mean goods which:

(a) consist of at least two different articles which are *prima facie*,
    classifiable in different headings. Therefore, for example, six
    fondue forks cannot be regarded as a set within the meaning of this
    Rule;

(b) consists of products or articles put up together to meet a
    particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without
    repacking (e.g., in boxes or cases or on boards).

We find that the subject merchandise does not meet the terms of
Explanatory Note (IX) to GRI 3 (b) as the holder and toothpicks are not
adapted one to the other and do not form a whole. Therefore, they are
not classifiable as a composite good. Instead we consider the instant
merchandise to be classifiable as "goods put up for retail sale" as a
set according to Explanatory Note (X) to GRI 3 (b).

We find that the toothpick holder rather than the actual toothpicks, by
reason of its function and essential nature, imparts the essential
character of the toothpick holder "set" as a whole. Hence, our analysis
will discuss the subject merchandise as a retail set whose activity is
to hold, display and to make toothpicks readily accessible.

The HTSUS provisions 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

\* \* \*

HQ 960657 based its classification on the position that toothpick
holders are not tableware but rather general household articles. In HQ
960657, CBP reasoned that by its common and commercial meaning,
tableware is limited to utensils chiefly used for setting a table or
serving food or drinks. We find that the reasoning in HQ 960657 relied
too heavily upon court cases interpreting the previous tariff schedules
and did not fully consider the structure of the HTSUS. Likewise, HQ
960657 narrowly interpreted the scope of the heading and also failed to
consider that the heading includes both tableware and kitchenware
articles. As noted in H. Conf. Rep. No. 576, p.550, decisions by the
Customs Service and courts interpreting nomenclature under the TSUS are
not deemed dispositive in interpreting the HTSUSA. Nevertheless, on a
case-by-case basis, TSUS decisions should be considered instructive, in
interpreting the HTSUS, particularly where the nomenclature previously
interpreted in those decisions remains unchanged and no dissimilar
interpretation is required by the text of the HTSUS. In this instance, a
dissimilar interpretation is indicated by the text of the HTSUS, which
provides for tableware and kitchenware. By definition, the term
tableware includes those items traditionally used in serving food or
associated with table settings. [See]{.underline} Webster's Collegiate
Dictionary, 1195, 10^th^ ed., (2001) (tableware is defined as: "utensils
{as of china, glass or silver} for table use)." However, we find that
the scope of the heading as it relates to either tableware or
kitchenware is not limited to articles "chiefly used upon a table to
serve foods."

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]{.underline}, 673 F.2d 380, 382 (1982);
[[Schott Optical Glass, Inc. v. United States,]{.underline} 612 F.2d
1283, 1285
(1979).](https://www.lexis.com/research/buttonTFLink?_m=b0dc79596a16fa2691f2f0c9a9a84f9b&_xfercite=<cite cc%3D"USA"><!%5BCDATA%5B46 F.3d 1098%5D%5D><%2Fcite>&_butType=3&_butStat=2&_butNum=28&_butInline=1&_butinfo=<cite cc%3D"USA"><!%5BCDATA%5B67 C.C.P.A. 32%2Cat 34%5D%5D><%2Fcite>&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVlb-zSkAA&_md5=88edfa3386fe14cea4d9107fb316deda)
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]{.underline}, 673 F.2d 1268, 1271
(1982).](https://www.lexis.com/research/buttonTFLink?_m=b0dc79596a16fa2691f2f0c9a9a84f9b&_xfercite=<cite cc%3D"USA"><!%5BCDATA%5B46 F.3d 1098%5D%5D><%2Fcite>&_butType=3&_butStat=2&_butNum=31&_butInline=1&_butinfo=<cite cc%3D"USA"><!%5BCDATA%5B69 C.C.P.A. 128%2Cat 133%5D%5D><%2Fcite>&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVlb-zSkAA&_md5=236a2fd844054afe23c3d847a20855a8)
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]{.underline}. 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 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 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.

According to the ENs to heading 6911, HTSUS, and dictionary definitions,
tableware and kitchenware of this heading can be used in a variety of
table and kitchen related functions which are not limited to table
settings. For instance, such merchandise can remain exposed to public
view, used in the preparation of food and beverage items or act as a
table setting. 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. Unlike household articles, the articles
listed in the ENs to heading 6911, HTSUS, as tableware and kitchenware
are immediately associated with food preparation, food storage and food
consumption.[^1]

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]{.underline}, 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]{.underline}, 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. The provisions at issue are sufficiently
broad in their scope to include tableware articles which are not
exclusively used upon a table for the sole purpose of serving food and
to include kitchenware articles which have functions similar to and
indicative of the subject toothpick holder.

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]{.underline} [Kraft, Inc. v. United States]{.underline}, 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. Finally, 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.

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. Furthermore, 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. 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.[^2] Hence,
the use of this item suggests that it be used in close connection with
dinning areas, food and beverage preparation or consumption.

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 3 (b), the
subject "Porcelain Toothpick Holder" set 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 3(b), a "Ceramic Toothpick Holder" set 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:**

HQ 960657 dated June 9, 1998, is hereby revoked. In accordance with 19
USC §1625 (c), this ruling will become effective 60 days after
publication the [Customs Bulletin]{.underline}.

> Sincerely,

Myles B. Harmon, Director

> Commercial and Trade Facilitation Division

[^1]: Note that for purposes of this discussion a reference made to
    food(s) encompasses a reference to ingredients, beverages and other
    items associated therein.

[^2]: See generally, *Kitchen & Dining*, Wexner Center Store at
    [http://store.wexnercenterstore.com](http://store.wexnercenterstore.com/);
    *Kitchenware*, CNKC Kitchenware Co. Ltd
    [www.kitchenwarecn.com](http://www.kitchenwarecn.com/);*Toothpick
    Holders*, Stainless Steel Kitchenware.com
    [www.stainless-steel-kitchenware.com/toothpick-holders.html](http://www.stainless-steel-kitchenware.com/toothpick-holders.html)