CLA-2 CO:R:C:G 084122 LS

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

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