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
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.
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:
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: ...
The 1996 general column one rate of duty for goods classifiable
under this provision is 7.6% ad valorem.
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
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
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
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
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
(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.
The toothpick holder and 12 toothpicks are classifiable as
other household articles of porcelain or china in subheading
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.
John Durant, Director,
Commercial Rulings Division