us-cbp-cross-rulings-hq-084122•HQ 084122: Reconsideration of New York Ruling Letter 836362, dated February 17, 1989, concerning tariff classification of porcelain moulds
HQ 084122: Reconsideration of New York Ruling Letter 836362, dated February 17, 1989, concerning tariff classification of porcelain moulds
us-cbp-cross-rulings-hq-084122HQ 084122: Reconsideration of New York Ruling Letter 836362, dated February 17, 1989, concerning tariff classification of porcelain mouldsGuidance
Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.
HQ 084122
January 9, 1990
CLA-2 CO:R:C:G 084122 LS
CATEGORY: Classification
TARIFF NO.: 6913.10.50
Marjorie M. Shostak, Esq.
Stein Shostak Shostak & O'Hara
Suite 806
1101 Seventeenth St., N.W.
Washington, D.C. 20036-4704
RE: Reconsideration of New York Ruling Letter 836362, dated
February 17, 1989, concerning tariff classification of
porcelain moulds
Dear Ms. Shostak:
This is in response to your request for a reconsideration
of New York Ruling Letter 836362, dated February 17, 1989.
Your request was submitted on behalf of your client, The
Franklin Mint Trading Corp.
FACTS:
The articles at issue consist of two series of six
different designs of sculptured porcelain molds imported by
The Franklin Mint Trading Corp. as the "Cordon Bleu Porcelain
Mould Collection." The bottom of each mold has a raised
surface decorated with a convex reproduction of a food or
animal which is hand painted. The four sample molds which you
have submitted have the following designs: a goose, a rabbit,
asparagus, and lemons. They are further decorated with ribbon
and flower motifs along the sides. The molds are round, oval,
rectangular, or diamond shaped with scalloped edges. Each
mold has a hole on the outside rim designed for hanging the
article on the wall. The accompanying literature states that
each mold comes with a hanging device. The elaborate
decorations on the bottom of each mold are exposed when the
mold is hung on the wall. The literature states that the
designs are fired at an extremely high temperature and then
glazed to create a lustrous finish.
Although the designs are distinct on the exterior of the
molds, they are rather amorphous on the inside surface. The
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indentations which appear along the sides of the molds are not
very marked on the inside surface. Thus, it appears that food
placed in the molds does not take on the detailed design
appearing on the outside of the molds. For example, when the
importer prepared a basic carrot cake recipe in the round mold
with the lemon design, the finished product was basically a
round shape with only rough and indistinct indentations on the
surface of the cake. Of the four samples of molds submitted,
only one of them can be positioned to sit level on a flat
surface. Even this one mold, however, is relatively unstable
in that position and could easily tilt to one side when
handled. The other molds tilt to one side when placed on a
flat surface. The importer submitted the lemon mold after it
was used to prepare a lemon custard and was washed in a
dishwasher. The markings of the lemon custard which remain
after washing show that the custard neither fills the mold
evenly nor solidifies evenly because the mold does not sit
level when placed on a flat surface.
The importer has submitted considerable advertising
material. The molds are sold as a collection by mail order
subscription. The subscription provides for the purchase of a
series of six molds, with each mold priced at $37.50, which is
to be paid in two monthly installments. One mold is to be
delivered every other month. Each mold comes with a
certificate of authenticity and a specially designed Cordon
Bleu recipe. The literature states that each mold is inspired
by a different Cordon Bleu recipe. For example, the goose
mold comes with a recipe for duck pate with prunes and the
lemon mold comes with a recipe for lemon custard.
The literature emphasizes the decorative aspects of the
articles. Each mold is described as an "original work of art
sculptured and painted by hand - in the authentic French
tradition." The authentic tradition refers to the sculptured
molds displayed in the great country homes of the seventeenth
and eighteenth centuries. The colored photographs of a
brochure show the series of six molds displayed in an
arrangement on a dining room or kitchen wall in a French
country setting. The accompanying literature states that the
collection "will brighten the decor of every home, from
country to contemporary."
A letter from the president of Le Cordon Bleu de Paris, a
leading authority on culinary arts, states that the culinary
institute joined with The Franklin Mint in presenting the
porcelain mold collection. The letter states that, with the
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enclosed recipe, the purchaser "can actually use and enjoy
these splendid works of art . . . when they're not being
admired on the] walls!" In another letter, which accompanies
the subscription application and is signed by an officer of
The Franklin Mint, the fact that the molds can actually be
used for food preparation is mentioned only in a postscript at
the bottom. The brochure which emphasizes the decorative
aspects of the molds also states that the molds are completely
oven safe.
A memorandum from an employee of the Home Decor Marketing
Group Research Department of The Franklin Mint explains that
the importer took the rough beauty of the exterior of
traditional food molds and refined the look for decorative
display. The memorandum states that if someone really wanted
to use these items as food molds they could do so. However,
they are not designed for actual use. With respect to the
recipes, The Franklin Mint states that each recipe includes an
ingredient representative of the artistic motif on the mold.
Although none of the twelve recipes explicitly state that a
"Le Cordon Bleu" mold should be used in preparing the food,
five recipes refer to the use of a mold. One of the recipes
state that the mold should be placed in a roasting pan when
put into the oven, and another recipe states that the mold
should be placed in a baking pan. The memorandum further
states that even when the molds are placed in a water filled
pan, as provided for in the recipes, they do not sit flatly.
As stated in your letter of July 7, 1989, the molds mentioned
in two of the recipes refer to souffle molds, and one of the
other recipes is really referring to a tart dish. The recipe
providing for duck pate with prunes is said to provide for
more food than would fit into the Cordon Bleu goose mold. The
head chef of The Franklin Mint has recommended the use of a
flat bottomed porcelain or ceramic tureen for preparation of
the duck pate in order to obtain even settling of the pureed
mixture. The seven remaining recipes do not refer to molds
and we are told that they are not the types of food which
would be prepared in a mold.
New York Ruling Letter 836362, dated February 17, 1989,
classified the subject porcelain molds in subheading
6911.10.50, Harmonized Tariff Schedules of the United States
Annotated (HTSUSA), which provides for "Tableware,
kitchenware, other household articles and toilet articles, of
porcelain or china: Tableware and kitchenware: Other:
Other: Other: Other." In your original ruling request
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directed to Customs New York Seaport, dated January 27, 1989,
you claimed that the molds were classifiable in subheading
6913.90, HTSUSA [should read 6913.10], which provides for
"Statuettes and other ornamental ceramic articles: Of
porcelain or china." The New York ruling found that, although
the molds are highly decorative, the decoration does not
nullify the articles' usefulness. The ruling further
determined that the molds, which are oven safe and are
packaged with a recipe, can be and are made to be used in the
same manner as plainer molds. Applying the Explanatory Notes
to heading 6913, the ruling concluded that the molds were not
classifiable under subheading "6913.90" (6913.10), HTSUSA.
In a letter dated March 29, 1989, you requested
reconsideration of the New York ruling. You contend that the
Explanatory Notes to heading 6913 require the classification
of the molds in that provision. Explanatory Note 6913 states
in pertinent part:
(B) Tableware and other domestic articles only if the
usefulness of the articles is clearly subordinate
to their ornamental character, for example, trays
moulded in relief so that their usefulness is
virtually nullified, ornaments incorporating a
purely incidental tray or container usable as a
trinket dish or ashtray, miniatures having no
genuine utility value, etc. In general, however,
tableware and domestic utensils are designed
essentially to serve useful purposes, and any
decoration is usually secondary so as not to
impair the usefulness. If, therefore, such
decorated articles serve a useful purpose no less
efficiently than their plainer counterparts, they
are classified in heading 69.11 or 69.12 rather
than in this heading.
With respect to this Explanatory Note, you state that the
characteristics which give the molds their decorative
qualities also impair their utilitarian use. For example, you
state that because the molds are subject to tipping and
rocking when the convex design is placed on a surface, their
use as bowls is hampered. Their use as molds is also said to
be severely limited because any food placed in them would not
take on the shape of the design which protrudes from their
exterior surface.
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Applying the Explanatory Notes, you contend that the
usefulness of the molds is clearly subordinate to their
physical decorative characteristics. You state that the items
are "moulded in relief" so that their usefulness for moulding
food is "virtually nullified." You further claim that the
decorative characteristics do impair the molds' usefulness and
are not secondary to that usefulness. Classification in
heading 6911 is said to be inappropriate because the molds
serve their useful purpose less efficiently than their plainer
counterparts. In order to be classified in heading 6911, you
state that the molds would have to be chiefly used as
kitchenware, tableware, or other household articles. Because
the molds are specially designed and sold as decorative and
ornamental articles to be collected and displayed in the home,
you contend they are not classifiable in heading 6911.
In your letter of July 7, 1989, which was submitted at
the time of a conference at Customs Headquarters, you state
that the subject molds do not have any of the characteristics
of a food mold or a serving dish. For comparison purposes,
you have submitted a copper mold which is designed to impart a
design to the food prepared in it. The exterior surface of
the mold contains raised configurations of strawberries which
come through in detail on the inside.
Along with your subsequent letter, dated September 8,
1989, you have submitted a report prepared by the associate
counsel of The Franklin Mint which summarizes the results of a
series of kitchen tests performed by the head chef using the
subject molds. In the report you state that a leading
cookware buying guide recommends metallic molds for the
creation of intricately detailed and smoothly contoured
shapes, while porcelain molds are recommended only for the
creation of smoothly contoured shapes. You state that the
subject molds are not capable of imparting either detailed
designs or smooth surfaces to food. These statements are
supported by photographs of a carrot cake prepared both in a
metallic mold and a porcelain mold. In summary, the report
states that use of the molds for culinary purposes, although
not impossible, would be less effective than other vessels and
would entail considerable inconvenience.
ISSUE:
Whether the subject porcelain molds are properly
classifiable as porcelain tableware or kitchenware in
subheading 6911.10.50, HTSUSA, or as ornamental ceramic
articles in subheading 6913.10.50, HTSUSA?
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LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is
governed by the General Rules of Interpretation (GRI's), taken
in order. GRI 1 states, in pertinent part, that
"classification shall be determined according to the terms of
the headings and any relative section or chapter notes. . ."
The Explanatory Notes constitute the official interpretation
of the HTSUSA at the international level.
Heading 6911, which provides for "Tableware, kitchenware,
other household articles and toilet articles, of porcelain or
china", is a use provision. U.S. Rule of Interpretation 1(a)
states:
a tariff classification controlled by use (other
than actual use) is to be determined in accordance
with the use in the United States at, or immediately
prior to, the date of importation, of goods of that
class or kind to which the imported goods belong, and
the controlling use is the principal use.
Thus, in order to be classified in heading 6911 it must be
shown that the porcelain molds are principally used as
tableware or kitchenware. Although tableware and kitchenware
are not defined in the HTSUSA or in the Explanatory Notes,
examples of such articles are listed in the Explanatory Note
to heading 6912, which provides for "Ceramic tableware,
kitchenware, other household articles and toilet articles,
other than of porcelain or china" (such as stoneware,
earthenware, or imitation porcelain). The Explanatory Note to
heading 6912 is incorporated by reference into the Explanatory
Note to heading 6911. Part B of the Explanatory Note to
heading 6912 lists "pastry or jelly moulds" among the examples
of "kitchenware." The types of examples listed suggest that
the term "kitchenware" encompasses various articles used in
preparing, serving, or storing food or beverages, or food or
beverage ingredients.
The Explanatory Note to heading 6913 states that the
heading covers a wide range of ceramic articles of the type
designed essentially for the interior decoration of homes,
offices . . ., etc." We have already quoted herein Part B of
this Explanatory Note.
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Applying Part B of the Explanatory Note to heading 6913,
we find that an examination of the porcelain molds themselves,
and the evidence which you have presented, support a
conclusion that the usefulness of the molds is clearly
subordinate to their ornamental character. The subject molds
do not appear to be designed essentially to serve a useful
purpose and their elaborate decoration is not secondary to
their usefulness. In fact, we find that the decorative
aspects do impair, but do not necessarily "virtually nullify,"
the molds' usefulness. We base these conclusions on the
following facts discussed earlier in this ruling: (1) the
distinct designs on the outside surface of the molds are
rather amorphous on the inside, so as not to be imparted to
the food prepared in the molds; and (2) generally the molds do
not sit level when placed on a flat surface, including a
baking dish, thus resulting in the uneven solidification of
the food prepared in them. Although these articles could be
used for preparing and cooking food, that use would not be the
principal use. A mold is defined as "a cavity in which a
fluid or malleable substance is given form: as . . . (5) a
cooking utensil in which a dish (as a pudding or jelly) is
given a decorative shape." Webster's Third New International
Dictionary (1971) at 1454. Food is generally removed from a
mold prior to being served. The subject articles do not serve
the purpose of molds since they do not impart their external
decorative designs and shapes to the food prepared in them.
Even if these articles were to be used as casseroles, their
usefulness as such is limited and not efficient.
The Explanatory Note further states that if the decorated
articles serve a useful purpose no less efficiently than their
plainer counterparts, they are classified in heading 6911 or
6912 rather than in heading 6913. We have been unable to
compare the subject molds to plainer porcelain molds since you
have not provided us with samples of such molds, and we have
been unable to locate any porcelain molds in specialty stores
or department stores. The copper mold is not a "plainer
counterpart" since it is not made of ceramic. However, we
have compared these molds to handcrafted stoneware shortbread
and cookie molds which are made of a type of clay material.
The shortbread mold has a flat bottom and is shaped like a
plate with a raised circumference. The intricate pattern or
design appears on the top surface of the mold, and is clearly
imparted to the shortbread, as shown in a photograph on the
packaging. Although this stoneware mold may not be considered
a "plainer counterpart" of the subject molds, as that term is
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used in the Explanatory Note, it does serve as an example of
the type of "pastry or jelly mould" classifiable in heading
6912, and referred to in the Explanatory Note to headings 6911
and 6912 as "kitchenware."
Since the subject porcelain molds are not of that class
or kind of articles which are principally used as tableware or
kitchenware, they are not classifiable in heading 6911. We
find that they generally meet the criteria for "other
ornamental ceramic articles" set forth in Explanatory Note (B)
to heading 6913. Since they are made of porcelain they are
classifiable in subheading 6913.10.50, HTSUSA.
HOLDING:
For the foregoing reasons, the molds in the "Cordon Bleu
Porcelain Mould Collection" are classifiable in subheading
6913.10.50, HTSUSA, as ornamental ceramic articles.
Accordingly, we modify New York Ruling Letter 836362, dated
February 17, 1989, which found that the molds were
classifiable in subheading 6911.10.50, HTSUSA, as tableware or
kitchenware.
Sincerely,
John Durant, Director
Commercial Rulings Division
schreiber library 084122LS
6cc: Area Dir New York Seaport
LSchreiber:za:1/9/90
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