# HQ 967356

## November 24, 2004

## CLA-2 R:CR:GC 967356 RSD

**CATEGORY:** Classification

## 

## TARIFF No. 8215.99.2000

Port Director

U.S. Customs Border Protection

Port of Newark and New York

C/O Protest and Control Section

1100 Raymond Blvd.

Suite 402

Newark, New Jersey 07102

**RE:** Protest 4601-04-101035; jumbo corn skewer sets

Dear Port Director:

This is our decision on Protest 4601-04-101305, filed by International
Tariff Management, Inc., on behalf of the Walgreen Company on April 29,
2004, against your decision on the classification under the Harmonized
Tariff Schedule of the United States (HTSUS) for a 8 piece jumbo corn
skewer set. No sample or picture of the product under consideration was
provided.

**FACTS:**

The product under consideration is stated to be an eight-piece jumbo
corn skewer set. Each corn skewer is made of plastic and has
nickel-plated steel prongs that are presumably used to grab and hold
ears of corn. No further description was provided regarding the product.
Your office classified the merchandise in subheading 8215.99.20, HTSUS
as forks with plastic handles. The protested entry was liquidated on
January 30, 2004, and the Protest was filed on April 29, 2004.

**ISSUE:**

What is the proper classification of the jumbo corn skewer set?

**LAW AND ANALYSIS:**

We first note that the Protest was timely filed pursuant to 19 U.S.C.
1514 (c)(3) and 19 C.F.R. 174.12 (e)(1).

Classification under the HTSUS is made in accordance with the General
Rules of Interpretation (GRI's). GRI 1 provides that the classification
of goods shall be determined 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 may then be applied. GRI 6 requires that the
classification of goods in the subheadings of headings shall be
determined according to the terms of those subheadings, any related
subheading notes and mutatis mutandis, to the GRIs.

The Harmonized Commodity Description and Coding System Explanatory Notes
(EN's) constitute the official interpretation of the Harmonized System.
While not legally binding on the contracting parties, and therefore not
dispositive, the EN's 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 Harmonized System. CBP believes
the EN's should always be consulted. See T.D. 89‑80, 54 Fed. Reg. 35127,
35128 (Aug. 23, 1989).

The HTSUS provisions under consideration are as follows:

8215 Spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter-
knives, sugar tongs and similar kitchen or tableware;...

Other:

8215.99 Other:

Forks:

8215.99.20 With rubber or plastic handles.

8215.99.50 Other.

\* \* \* \* \* \* \* \* \* \* \* \*

> EN 82.15 indicates that:

This heading includes:

...

> \(2\) Table forks; caving forks, serving forks, cooks' forks; cake
> forks; oyster
>
> forks; snail forks; toasting forks.
>
> ...
>
> \(7\) Other tableware, such as poultry or meat grips, and lobster or
> unit grips.
>
> These goods may be one piece or fitted with handles of base metal,
> wood, plastics, etc.

However, neither the Legal Notes for Chapter 82, HTSUS, or the ENs
provide a definition for the term fork. A tariff term that is not
defined in the HTSUS or in the ENs is construed in accordance with its
common and commercial meanings, which are presumed to be the same.
[Nippon Kogasku (USA) Inc. v. United States,]{.underline} 69 CCPA 89,
673 F. 2d 380 (1982). Common and commercial meaning may be determined by
consulting dictionaries, lexicons, scientific authorities and other
reliable sources. [C.J. Tower & Sons v. United States,]{.underline} 69
CCPA 128, 673 F. 2d 1268 (1982).

Merriam-Webster Online Dictionary describes a fork as:

> An implement with two or more prongs used especially for taking up (as
> in eating), pitching or digging.

Oxford English Dictionary Online defines the word fork as:

An implement with two or more prongs used for lifting or holding

food.

Because corn skewers have prongs and are used to lift and hold food, it
appears that they fit these definitions for forks.

In NY 883095 dated March 23, 1993, Customs and Border Protection (CBP)
held that six corn skewers were classified in subheading 8215.99.20,
HTSUS: as forks with rubber or plastic handles. The determination that
corn skewers are classified in subheading 8215.99.20, HTSUS as forks
with plastic handles was reiterated in NY C88203 dated June 12, 1993,
and NY C88204 dated June 10, 1998.

Protestant contends that the corn skewers should be classified in
subheading 8215.99.50 which as similar tableware... Other; Other:
Other". According to the Protestant corn skewers are not forks but are
other tableware similar to items mentioned in EN 82.15 such as "poultry
or meat grips and lobster or unit grips." However, the Protestant did
not provide any analysis to support this contention nor did it elaborate
on its position. Accordingly, in view of the definitions for forks
mentioned above, we find no reason to alter our established position
that corn skewers are forks that are classified in subheading
8215.99.20, HTSUS.

**HOLDING:**

The corn skewers are classified in subheading 8215,90.2000, HTSUS as
Spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter
knives, sugar tongs and similar kitchen or tableware: Other: Other:
Forks: With rubber or plastic handles, dutiable at a general column one
duty rate of 0.5 cents each plus 3.2 percent ad valorem. Duty rates are
provided for your convenience and are subject to change. The text of the
most recent HTSUS and the accompanying duty rates are provided on the
World Wide Web at [www.usitc.gov]{.underline}.

You are instructed to **DENY** the protest in full. In accordance with
the Protest/Petition Processing Handbook (CIS HB, June 2002, pp. 18 and
21), you are to mail this decision, together with the CBP Form 19, 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 make the
decision

available to CBP personnel, and to the public on the CBP Home Page on
the World Wide Web at www.cbp.gov, by means of the Freedom of
Information Act, and other methods of public distribution.

> Sincerely,
>
> Myles B. Harmon,
>
> Director, Commercial Rulings Division