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HQ 965704




August 30, 2002

CLA-2 RR:CR:GC 965704 BJB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.10.60; 9405.20.60

Port Director
U.S. Customs Service
P.O. Box 17423
Washington, DC 20041

RE: Protest 5401-02-100007; Electric table lamp; and Electric wall lamp

Dear Port Director:

This is our decision regarding Protest 5401-02-100007, filed by a Customs broker on behalf of Geoffrey Diner Gallery, Inc. (“protestant”) concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of electric table lamps and an electric wall lamp.

FACTS:

The merchandise consists of electric wall lamps and an electric table lamp made of wrought iron and alabaster, designed by French architect and furniture designer Pierre Chareau, circa 1923-1927. Protestant filed the subject entry on August 7, 2001 with an invoice describing the goods as being made of brass, and seeking classification under subheading 9405.10.40, HTSUS, as “[l]amps and lighting fittings, . . . and parts thereof, not elsewhere specified or included; . . .: Chandeliers and other electric ceiling or wall lighting fittings, excluding those of a kind used for lighting public open spaces or thoroughfares: Of base metal: Of brass”, and subheading 9405.20.40, HTSUS, as “. . . Electric table, desk, bedside or floor-standing lamps: Of base metal: Of brass[,]” respectively.

Customs determined that the goods were made of wrought iron, and not of brass, and issued a “Notice of Action,” on July 24, 2001, reclassifying the goods under subheadings 9405.10.60, and 9405.20.60, HTSUS, as “[l]amps and lighting fittings . . . and parts thereof, not elsewhere specified or included; . . .: Chandeliers and other electric ceiling or wall lighting fittings . . . : Of base metal: Other”; and “. . . Electric table, desk, bedside or floor-standing lamps: Of base metal: Other[,]” respectively. On November 16, 2001, Customs liquidated the entry.

The protest was filed on February 14, 2002, seeking classification of the subject goods under heading 9705, HTSUS, as “[c]ollections and collectors’ pieces of . . . historical, . . . interest[.]”

Protestant submitted a photocopy of a commercial brochure inclusive of pictures and descriptions of works by Mr. Chareau, presumably of those covered by the consumption entry in question. The documentation, including pictures, identifies the goods as “Lot 66:” “a ‘Masque’ of wrought iron and alabaster applique;” “Lot 68:” “a wrought iron and alabaster table lamp;” and “Lot 75:” “a pair of wrought iron and alabaster wall lights.” The subject articles were designed by Mr. Chareau but produced by other craftspeople.

Lot 66 is described as a “two part wrought iron support, twin fan-shaped alabaster panel” wall lamp of 16.25 maximum width. Lot 68 is described as a table lamp made of a “[b]ent metal support with trapezoidal base, twin fan shaped alabaster panels, 11 inches high, 10.25 inches wide, and 8.5 inches deep. Lot 75, is described as made of “[s]quare metal support with central dividing panel, twin block alabaster shades,” 14 inches high and 13 inches wide. The accompanying estimated prices, listed next to the description of each of the subject goods in the brochure, are approximately half the price value listed on separate sales invoices.

The goods are functioning electric lamps designed and intended for use as wall and table lamps. They are intended for commercial sale, not for use by a non-profit organization or for public exhibition.

ISSUE:

Whether the electric wall and table lamps are classifiable under heading 9705, HTSUS, as “[c]ollections and collectors’ pieces of . . .historical, . . . interest[,]” or under heading 9405, HTSUS, which provides for “[l]amps and lighting fittings . . .[.]”

LAW AND ANALYSIS:

We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 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 GRI’s may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. Customs believes the ENs 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:

Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included:

Collections and collectors’ pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic or numismatic interest . . .

Protestant claims that the subject goods should be considered “collectibles of historical interest,” classifiable under heading 9705, HTSUS, as they are: 1) rare, only a limited number of Mr. Chareau’s works are available worldwide; 2) of little intrinsic value, their value being derived from the importance of the designer’s reputation; and 3) of “historical interest,” because of the impact of Mr. Chareau’s work during an historical period (the 1930’s and 1940’s) as a change in style from 19th century functionality to 20th century modern design.

Heading 9705, HTSUS, in pertinent part, provides for “[c]ollections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic or numismatic interest (emphasis added).

The EN’s for heading 9705, in pertinent part, provide that “these articles are very often of little intrinsic value but derive their interest from their rarity, their grouping or their presentation.”

Rarity, grouping and presentation are guidelines. Value is not a controlling guideline for rarity but it may be considered to show rarity. The Compact Edition of the Oxford English Dictionary (1987) defines grouping as “the action of placing in groups, a manner in which things are grouped”, and defines presentation as “a display, show, exhibition”. The Random House Unabridged Dictionary (1993) also defines presentation as “an exhibition or performance, as of a play or film.” These guidelines indicate that the articles must be rare, placed in groups indicating more than one article, and consist of articles for exhibition and not for utilitarian use.

The EN’s for heading 9705 further state, in part, that the heading includes:

“(B) Collections and collectors’ pieces of historical, ethnographic, paleontological of archaeological interest, for example:

(1) Articles being the material remains of human activity suitable for the study of the activities of earlier generations, such as: mummies, sarcophagi, weapons, objects of worship, articles of apparel, articles which have belonged to famous persons.

(2) Articles having a bearing on the study of the activities, manners, customs and characteristics of contemporary primitive peoples, for example, tools, weapons or objects of worship.

(3) Geological specimens for the study of fossils (extinct organisms which have left their remains or imprints in geological strata), whether animal or vegetable.”

The guidelines of the EN’s indicate a narrow interpretation of coverage under heading 9705. The EN’s further state:

“Goods produced as a commercial undertaking to commemorate, celebrate, illustrate or depict an event or any other matter, whether or not production is limited in quantity or circulation, do not fall in this heading as collections or collectors’ pieces of historical or numismatic interest unless the goods themselves have subsequently attained that interest by reason of their age or rarity.”

In support of its claim that the subject goods are both rare, and of historical interest because of their designer’s fame, protestant submitted evidence that the lamps are sold for prices twice of those advertised in an auction house brochure. As noted above, price alone is not a conclusive indication of rarity. Further, we have determined that “estimates” listed in an auction house brochure are most often “reserves,” amounts below which objects will not be sold, and are not attempts to denominate the real value of an object. Absent any contrary evidence, the disparity between “estimated” prices and actual sale prices, combined with the goods’ commercial sale as functional lamps, is a reflection of the market for these articles and not of a designer’s role in advancing modern design in lamps.

Although protestant claims that many of Mr. Chareau’s designs were not mass-produced, no evidence has been provided to show that the subject articles are of a limited production or that they derive their value or historical interest from such a limited production.

Specifically, under heading 9705, there must be a connection established between the article and history. Protestant has not demonstrated that the goods were owned by or identified with a particular famous person, or identified with a particular historical event. Protestant has also not demonstrated that the goods are put up in collections, or for use in a particular exhibition. On the contrary, it is clear that these lamps will be sold commercially and continue to serve their utilitarian function as lamps.

Customs has addressed the definition of the term “historical . . . interest,” when it determined that miniature lead soldiers made in France were not classifiable as collectibles of “historical . . .interest.” See HQ 085851, dated June 1, 1990. In that ruling, Customs held it was clear from EN 97.05, “that the phrase ‘historical . . .interest’ as specified in chapter 9705 is meant to include items that were in use during a specific historical period and are valuable for that reason, i.e., an actual uniform worn by a soldier during the Napoleonic wars, a cannon used during the United States Revolutionary war, etc.” Protestant has not demonstrated such an historical use or relationship. Protestant clearly intends to sell the subject articles for present use.

Protestant claims that the lamps are of historical interest because they were designed, though not produced or owned by, a participant in the historical evolution of utilitarian design, not because of any identification with a specific historical event. Protestant’s documentation does not support the claim that nearly three decades of evolution of design qualify as an historical event or establish an “historic interest” under heading 9705, HTSUS.

In HQ 089226, dated July 29, 1991, Customs held that a uniquely designed, one of a kind, 18-carat gold watch, valued at $4,975,000.00, did not qualify it as an article of “historical interest” under heading 9705, HTSUS. Although the watch took 5 years to design, and four years to complete, and was considered technologically one the world’s most complicated watches, it did not establish an “historical interest.”

Customs also determined that uniquely designed cars, only 50 of which had ever been produced, were not sufficiently rare or technologically significant to establish an “historical interest” under heading 9705. Without evidence that each car had been owned by a famous person and/or involved in an historically significant event (HQ 961297, dated November 5, 1998), they also did not meet the description of an “historical event” under the tariff.

Heading 9405, HTSUS, in pertinent part, provides eo nomine for “[l]amps and lighting fittings . . . not elsewhere specified or included[,]” EN 94.05, in pertinent part, provides that the heading “covers in particular:

Lamps and lighting fittings normally used for the illumination of rooms, e.g. : hanging lamps: bowl lamps; ceiling lamps; chandeliers; wall lamps; standard lamps; table lamps; bedside lamps; desk lamps; night lamps; water-tight lamps.”

At GRI 1, we find that the table and wall lamps are described in subheadings 9405.10.60, and 9405.20.60, HTSUS, which provide for “[l]amps and lighting fittings . . . and parts thereof, not elsewhere specified or included; . . .: Chandeliers and other electric ceiling or wall lighting fittings . . . : Of base metal: Other”; and “. . . Electric table, desk, bedside or floor-standing lamps: Of base metal: Other[,]” respectively.

HOLDING:

At GRI 1, the wall lamps are classifiable under subheading 9405.10.60, HTSUS, which provides for “[l]amps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included: Chandeliers and other electric ceiling or wall lighting fittings . . . : Of base metal: Other[.]” The table lamp is classifiable under subheading 9405.20.60, HTSUS, which provides for “[l]amps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included: Electric table, desk, bedside or floor-standing lamps: Of base metal: Other[.]”

You are instructed to DENY the protest in FULL.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs 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 Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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