HQ 960657

June 9, 1998

CLA-2 RR:CR:GC 960657 PH

CATEGORY: Classification

TARIFF NO.: 4421.90.50; 6911.10.80; 6911.90.00

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