CLA-2 CO:R:C:T 088182 jlj
Ms. Sarita W. Tao
Lorrex Health Products
1170 Broadway, Suite 215
New York, New York 10001
RE: Revocation of DD854860; Classification of wooden spoons
Dear Ms. Tao:
On July 20, 1990, our Ogdensburg District Office issued to
you ruling DD 854860, classifying certain wooden spoons imported
from China, under subheading 4421.90.6000, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA). Upon further
review, that ruling is determined to be in error.
FACTS:
The merchandise at issue, fabricated from wood, is flat,
spoon shaped and 3-5/8 inches in length. You state that the
spoons are sold to hospitals, nursing homes, food institutions
and consumers. The spoons are used to feed patients and are
discarded after one use.
DD 854860 classified the instant spoons under subheading
4421.90.6000, HTSUSA, which provides for other articles of wood:
other: toothpicks,skewers, candy sticks, ice cream sticks, tongue
depressors, drink mixers and similar small wares.
ISSUE:
Are the instant wooden spoons classified under the provision
for wooden spoons in subheading 4419.00.4000, or as tongue
depressors and similar small wares in subheading 4421.90.6000,
HTSUSA?
-2-
LAW AND ANALYSIS:
Comparing the wooden spoon shaped articles with tongue
depressors for purposes of tariff classification, the latter are
long, flat and of uniform width throughout their length (with the
exception of rounded tips). They are intended for medical or
dental use, to enable a doctor or dentist to examine the mouth,
throat or teeth by pressing the tongue down with a depressor.
You have previously obtained a ruling from the District Director
of Pembina, North Dakota (DD 854780 of August 10, 1990),
covering tongue depressors measuring 6 inches in length and a
uniform 3/4 inches in width, which classified the tongue
depressors in subheading 4421.90.6000, HTSUSA.
The instant spoon is short, flat and has a wider rounded
area (the spoon part) at one end. It measures only 3-5/8 inches
in length and is not uniform in width, having a handle measuring
approximately 3/4 inch at one and a spoon part measuring
approximately 1 inch in width at the other end. Both the handle
end and the spoon part have rounded edges. The sample is the type
of wooden spoon commonly used in ice cream stores; it is
obviously intended to be used for eating.
In terms of the legal issue, Heading 4419 covers tableware
and kitchenware, of wood. Subheading 4419.00.0000, HTSUSA, is
an eo nomine provision for forks and spoons.
The Explanatory Notes (EN) for Heading 4419 state:
This heading covers only household
articles of wood,...which are of
the nature of tableware or kitchenware.
It does not, however, cover goods
which are primarily ornamental in
character....
The heading includes: spoons....
The EN make it clear that the distinction is between household
articles, including spoons, and ornamental articles, rather than
household and institutional articles.
-3-
Eo nomine provisions cover all forms of the named article
unless the provision contains a limitation or there is a contrary
legislative intent, judicial decision or administrative practice.
Nootka Packing Co. v. United States, 22 CCPA 464, T. D. 47464
(1935). An eo nomine provision must, unless a legislative
intent to the contrary is clearly indicated, be preferred to
terms of general description and and to designations which are
broader and less specific. United States v. Astra Trading Corp.,
44 CCPA 8, C. A. D. 627 (1956).
Subheading 4421.90.6000 covers other articles of wood, with
certain exemplars spelled out. Inasmuch as that subheading is a
provision which is both broader in scope and less specific than
subheading 4419.00.4000, the latter eo nomine provision must be
chosen over the former general provision.
HOLDING:
Based on the reasoning and cases set forth above, the
instant wooden spoon is hereby classified as a spoon in
subheading 4419.00.4000, HTSUSA, dutiable at the rate of 5.3
percent ad valorem.
In order to insure uniformity in Customs classification of
this merchandise and eliminate uncertainty, we are revoking DD
854860 to reflect the above classification effective with the
date of this letter. However, if, after your review, you
disagree with the legal basis for our decision we invite you to
submit any arguments you might have with respect to this matter
for our review. Any submission you wish to make should be
received within 30 days of the date of this letter.
This notice to you should be considered a revocation of DD
854860 under 19 CFR 177.9 (d)(1). It is not to be applied
retroactively to DD 854860 (19 CFR 177.9 (d) (2) and will not,
therefore, affect past transactions for the importation of your
client's merchandise under that ruling. However, for the
purposes of future transactions in merchandise of this type,
DD 854860 will not be valid precedent. We recognize that
pending transactions may be adversely affected by this revocation
in that current contracts for importations arriving at a port
subsequent to this decision will be classified pursuant to it.
-4-
If such a situation arises, your client may, at its discretion,
notify this office and apply for relief from the binding effects
of this decision as may be warranted by the circumstances.
However, please be advised that in some instances involving
import restraints, such relief may require separate approvals
from other government agencies.
Sincerely,
John Durant, Director
Commercial Rulings Division