CLA-2 OT:RR:CTF:TCM H016036 RM
Joel Simon, Esq.
Serko Simon Gluck & Kane LLP
1700 Broadway, Suite 3100
New York, NY 10019
RE: Classification of Certain 19th Century Lighting Fixtures; I/A 06/016
Dear Mr. Simon:
This is in response to your internal advice request filed on behalf of your client, Mallet Inc., dated April 19, 2007, in accordance with Customs and Border Protection (CBP) Regulations, Part 177 (19 CFR 177). This regulation allows requests for "advice or guidance to the interpretation or proper application of the Customs and related laws with respect to a specific Customs transaction . . . from the Headquarters Office at any time, whether the transaction is prospective, current, or completed." 19 CFR § 177.11(a). Specifically, the request for internal advice was made pursuant to 19 CFR §177.11(b)(3), which provides:
(3) Form of request by importers and others. An importer or other person requesting that a Customs Service field office seek advice from the Headquarters Office must make such a request, in writing, to the field office having jurisdiction over the transaction in question. The request shall contain a complete statement setting forth a description of the transaction, the specific questions presented, the applicable law, and an argument for the conclusions advocated. The statement must also specify whether, to the knowledge of the person submitting the statement, the same transaction, or one identical to it, has ever been considered, or is currently being considered, by any Customs Service office. In addition, the statement should indicate at which port or ports of entry identical or substantially identical merchandise has been entered.
On behalf of your client, Mallet Inc., you are seeking internal advice on the classification of certain lamps described below.
FACTS:
The subject products are seven 19th Century lighting fixtures imported by Mallet Inc., an antiques dealer that specializes in 18th and 19th Century silver and furniture. The imports were invoiced as follows:
Item 2238 – A pair of gilt bronze appliqués, circa 1820
Item 2240 – A pair of red tole wall appliqués, circa 1815
Item 2241 – A pair of green tole wall appliqués, circa 1815
Item 2242 – A green tole chandelier, circa 1850
Item 2246 – A pair of gothic wall lamps, circa 1840
Item 2279 – A 19th Century brass hall lantern, circa 1840
Item 2295 – A regency brass & cut glass dish light, circa 1840.
The instant lamps were originally lit by candle, gas or kerosene lamps, but have now been converted into electrical lamps.
ISSUE:
At issue is whether the conversion of the imported fixtures from lighting fittings designed to be operated by candle, gas or kerosene to lighting fittings designed to be operated by electricity constitutes a repair or a renovation under 19 CFR §10.53(b).
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
9405 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:
9405.10 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:
9405.10.40 Of brass ….
9405.10.40 10 Household ….
* * *
9405.10.60 Other ….
9405.10.6010 Household ….
* * *
9706.00.00 Antiques of an age exceeding one hundred years ….
* * *
9706.00.0060 Other ….
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The relevant ENs are as follows:
The EN to heading 9706 provides, in pertinent part:
This heading covers all antiques of an age exceeding one hundred years….
Subject to these conditions, this heading includes:
* * *
(8) Chandeliers and lamps.
* * *
Provided they retain their original character, the heading includes antique articles which have been repaired or restored. For example, the heading includes: antique furniture incorporating parts of modern manufacture (e.g., reinforcements and repairs)….
* * *
The classification of antique products is governed by 19 CFR §10.53 which provides, in pertinent part:
(b) Antiques of the age prescribed by subheading 9706.00.00, HTSUS, or admitted under the provisions of paragraph (e) of this section, shall be admitted free of duty though repaired or renovated. If, however, an antique has been repaired with a substantial amount of additional material, without changing the original form or shape, the original and added portions shall be appraised and reported as separate entities and the basis for such report shall be plainly indicated on the invoice by the appraiser. In such cases duty shall be assessed on the portion added. If the repairs consist of an addition to an article of a feature which changes it substantially from the article originally produced, or if the antique portion has otherwise been so changed as to lose its identity as the article which was in existence prior to the time prescribed in subheading 9706.00.00, HTSUS, the entire article shall be excluded from free entry under subheading 9706.00.00, HTSUS.
(Emphasis added)
The above provision allows for certain repairs or renovations of antique products, provided that the antique does not “lose its identity as the article which was in existence prior to the time prescribed in subheading 9706.00.00, HTSUS.” This notion is supported by the ENs to heading 9706, HTSUS. That note allows for antiques which have been repaired or restored “provided they retain their original character.” (Emphasis in original). At issue in the present matter is whether the conversion of the subject lamps from gas, candle or kerosene to electricity changed their identity or original character.
It is your contention that the mere wiring does not represent a change of character for any of the seven imports. You further assert that the wiring merely enhances their use in a contemporary setting because, by today’s safety standards, the use of gas, candles or kerosene, would be both unsafe and inefficient. Furthermore, you argue that even when electrified, the lights have a very low wattage and are only capable of providing ambient light.
In order to determine whether the lamps have been restored or repaired within the meaning of 19 CFR §10.53, it is necessary to understand the meaning of these key terms. Neither “repair” nor “restore” are defined in the HTSUS or its legislative history. When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. See Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). "To ascertain the common meaning of a term, a court may consult 'dictionaries, scientific authorities, and other reliable information sources' and 'lexicographic and other materials.'" Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271, 69 C.C.P.A. 128 (C.C.P.A. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)). These two key terms, with their respective common meanings, are:
Restore: (1) to bring back to a former, original, or normal condition. See www.dictionary.com; (2) to bring back to or put back into a former or original state, See Merriam Webster Dictionary online at www.m-w.com
Repair: (1) to restore to a good or sound condition after decay or damage, www.dictionary.com; (2) to restore by replacing a part or putting together what is torn or broken, Merriam Webster Dictionary online at www.m-w.com
Based on the common meanings of these terms, an antique is repaired or restored if it is brought back to its original condition.
CBP has previously considered this issue as it relates to both clocks and lamps. In Headquarters Ruling Letter (HQ) 562149, dated August 1 2002, we discussed the classification of clocks from China. These clocks were altered in two different ways. One category had antique movements but newly added cases. The other category of clocks had antique cases with newly added movements. Applying the ENs to heading 9706, HTSUS, and 19 CFR §10.53, we stated:
[CBP] does not go beyond the provisions in the ENs to include within the terms “repaired or restored” completely new movements in old clock cases and completely new cases or faces that have been altered to appear to be antique with old movements inserted in them. These articles are known in the antiques trade as being other than antique, regardless of the claims made about them by the importer, the shipper, or the originating factory where they were constructed. Therefore, the…two categories of clocks under consideration do not rise to the level of antique because substantial
alterations and changes in the structure cause them to lose their original character…. [They] are so changed as to lose their identity as the article which was in existence more than 100 years ago.
(Emphasis added)
In a more recent decision, CBP classified chandeliers which were over one hundred years of age. See New York Ruling Letter (NY) L89460, dated December 21, 2005. Prior to import, the chandeliers had been electrified. As a
result, CBP found that they were excluded from classification in heading 9706, HTSUS, and were instead classifiable under heading 9405, HTSUS.
Applying this administrative precedent and the above definitions, we find that the subject lamps have been altered such that they have lost their identity “as the article which was in existence more than 100 years ago.” The articles have not been restored because they were not brought back to their former, original or normal condition. Furthermore, they have not been repaired because the alterations did not restore them to a sound condition after decay or damage, nor did it restore or replace a part by “putting together what is torn or broken.” Instead, the lamps were altered in order to satisfy modern safety and efficiency standards. The electrification changed the way in which the lamps work and are used. Notwithstanding the fact that they do not produce a large body of light, the lamps have been manufactured beyond restoration. As in HQ 562149 and NY L89460, the seven lamps do not retain their original character in their condition as imported.
In your request for internal advice, you cite certain CBP rulings in order to support your argument that the subject lamps have maintained their original character, in accordance with 19 CFR §10.53. You suggest that HQ 563422, dated May 30, 2006, provides an additional perspective of changing a product’s inherent characteristic. The ruling concerned the manufacture of Mannose, a liquid sugar, which was sent to either India or Ireland to be crystallized. The liquid Mannose was classifiable under subheading 9802.00.50, HTSUS. CBP found that the transformation of the liquid sugar to a crystalline sugar did not constitute an alteration of the sugar under subheading 9802.00.50, HTSUS. You assert that this analysis of the alteration or transformation of a product is applicable in the present matter. We disagree.
Subheading 9802.00.50 of the 2006 HTSUS provided as follows: “[a]rticles returned to the United States after having been exported to be advanced in value or improved in condition by any process of manufacture or other means: [a]rticles exported for repairs or alterations: [o]ther.” The terms of the subheading specifically envision alteration of the product outside of the United States. Furthermore, the subheading does not limit these alterations to the narrow category of repair or restoration, nor does it require the imported merchandise to maintain its original character after alterations. To the contrary, the subheading broadly applies to articles which have simply been “exported to be advanced in value or improved in condition by repair or alteration.” Due to the broad scope of the subheading, the classification of the Mannose was appropriate even after it had been altered from a liquid to a crystal. However, the analysis used in HQ 563422 is not applicable in the present matter.
A number of the rulings cited in your submission are based on the Tariff Schedules of the United States (TSUS), the predecessor to the Harmonized Tariff Schedule of the United States. The HTSUS, which went into effect January 1, 1989, is a new tariff system with rules of interpretation and application somewhat different from the TSUS. As noted in House Conference Report No. 100-576, dated April 20, 1998, on the Omnibus Trade and Competitiveness Act of 1988 (P.L. 100-418), decisions by the Customs Service and the courts interpreting nomenclature under the TSUS are not to be deemed dispositive in interpreting the HTSUS. Nevertheless, on a case-by-case basis prior decisions should be considered instructive in interpreting the HTSUS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTSUS. In this case both the merchandise and the nomenclature of the tariff provisions lend themselves to similar interpretations under both tariff systems. See HQ 961127, dated February 16, 1999.
In your submission, you cite to HQ 554842, dated March 1, 1991, in which a gilded, carved bronze chandelier was described as an “antique.” The chandelier’s center was a “globe which [was] decorated with star motifs. Lighted branches which symbolize bucking horses extend from the center of the globe. The upper part of the chandelier contain[ed] a ceiling light that [was] decorated with gilded palm fronds.” Originally, the chandelier was entered under item 653.39, TSUS, as an illuminating article. The importer protested this classification, asserting instead that the chandelier was an antique of item 766.25, TSUS – the provision for antiques. In your submission, you state that “the chandelier denoted in HQ Ruling 554842 was definitively stated to be a certified antique over one hundred years of age despite being electrified.” However, from the description of this chandelier, it is unclear whether the article was electrified or whether an individual ceiling lamp was merely attached. Furthermore, it is unclear whether the “lighted branches” were lit by candlelight or electricity. Without further information as to the nature of this chandelier, we are unable to compare it to the subject imports or view it as persuasive in this matter.
HOLDING:
Item 2238 – A pair of bronze appliqués, circa 1820; Item 2240 – A pair of red tole wall appliqués, circa 1815; Item 2241 – A pair of green tole wall appliqués, circa 1815; Item 2242 – A green tole chandelier, circa 1850; and Item 2246 – A pair of gothic wall lamps, circa 1840, are classified under subheading 9405.10.6010, 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: [c]handeliers and other electric ceiling or wall lighting fittings, excluding those of a kind used for lighting public open spaces or thoroughfares: [o]f base metal: [o]ther….[h]ousehold….” The general, column one rate of duty is 7.6 percent ad valorem.
Item 2279 – A 19th Century brass hall lantern, circa 1840 and Item 2295 – A regency brass & cut glass dish light, circa 1840, are classified under subheading 9405.10.4010, 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: [c]handeliers and other electric ceiling or wall lighting fittings, excluding those of a kind used for lighting public open spaces or thoroughfares: [o]f base metal: [o]f brass…. [h]ousehold….” The column one, general rate of duty is 3.9 percent ad valorem.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division