CLA-2 OT:RR:CTF:TCM H244591 CkG
TARIFF NO: 9405.99.40
Port Director
U.S. Customs and Border Protection
Port of Charleston
200 East Bay Street
Charleston, SC 29401
ATTN: Elizabeth Laxague, Import Specialist
Re: Application for Further Review of Protest No. 1601-13-100191; classification of iron light pendant
Dear Port Director:
This is in reply to the Application for Further Review (AFR) of Protest No. 1601-13-100191, dated June 25, 2013, submitted by Frost Brown Todd LLC on behalf of Ironware International, Inc. (“Protestant”), contesting U.S. Customs and Border Protection’s (CBP) classification and liquidation of one entry of an iron light pendant in heading 9405, HTSUS.
The subject light pendant was entered on September 28, 2012, in subheading 9703.00.00, HTSUS, which provides for “Original sculptures and statuary, in any material”. The entry was liquidated on January 24, 2013, in subheading 9405.40.60, HTSUS, as an other electric lamp or lighting fitting of base metal. Protestant claims classification as entered, in subheading 9703.00.00, HTSUS.
FACTS:
The instant merchandise is a forged iron rod, measuring 2” x 25” x 33” and weighing roughly 2 pounds. It is described on the importer’s website as a “light pendant”. It is brown in color, with gold accents, and features three presumably decorative knobs at regularly spaced intervals. The pendant is equipped with a phenolic light socket and shade rings to accommodate a lamp, and on the other end a circular hook for attachment to a ceiling fixture. The pendant is stated to be an original sculpture crafted under the guidance of artist and blacksmith Pierre Picard.
ISSUE:
Whether the instant iron pendant is classified in heading 9405, HTSUS, as a lighting fitting or part thereof, or in heading 9703, HTSUS, as an original sculpture.
LAW AND ANALYSIS:
The matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii),(iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 1601-13-100191 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise.
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings 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 or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied.
The 2013 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:
9405.40: Other electric lamps and lighting fittings:
Of base metal:
9405.40.60: Other:
Parts:
9405.99: Other:
9405.99.40: Other...
9703.00.00: Original sculptures and statuary, in any material.
* * * *
Note 3 to Chapter 97 provides as follows:
Heading 9703 does not apply to mass-produced reproductions or works of conventional craftsmanship of a commercial character, even if these articles are designed or created by artists.
* * * *
19 CFR 10.48 provides as follows:
§ 10.48 Engravings, sculptures, etc.
(a) Invoices covering works of art claimed to be free of duty under subheadings 9702.00.00 and 9703.00.00, HTSUS, shall show whether they are originals, replicas, reproductions, or copies, and also the name of the artist who produced them, unless upon examination the Customs officer is satisfied that such statement is not necessary to a proper determination of the facts.
(b) The following evidence shall be filed in connection with the entry: A declaration in the following form by the artist who produced the article, or by the seller, shipper or importer, showing whether it is original, or in the case of sculpture, the original work or model, or one of the first twelve castings, replicas, or reproductions made from the original work or model; and in the case of etchings, engravings, woodcuts, lithographs, or prints made by other hand-transfer processes, that they were printed by hand from hand-etched, hand-drawn, or hand-engraved plates, stones, or blocks:
I, ----------, do hereby declare that I am the producer, seller, shipper or importer of certain works of art, namely ---------- covered by the annexed invoice dated ----------; that any sculptures or statuary included in that invoice are the original works or models or one of the first twelve castings, replicas, or reproductions made from the sculptor's original work or model; and that any etchings, engravings, woodcuts, lithographs, or prints made by other hand-transfer processes included in that invoice were printed by hand from hand-etched, hand-drawn, or hand-engraved plates, stones, or blocks.
(c) The port director may waive the declaration requirement set forth in paragraph (b) of this section.
* * * *
EN 97.03 provides as follows:
This heading covers original sculptures and statuary, ancient or modern. They may be in any material (stone, reconstituted stone, terra cotta, wood, ivory, metal, wax, etc.), in the round, in relief or in intaglio (statues, busts, figurines, groups, representations of animals, etc., including reliefs for architectural purposes).
The same sculpture may therefore be reproduced as two or three “copies” in marble, wood, wax, bronze, etc., and a few in terra cotta or in plaster. Not only the preliminary model, but also the “clay form”, the “plaster model” and these “copies” constitute original works of the artist; the copies are in fact never quite identical as the artist has intervened at each stage with additional modelling, corrections to casts, and for the patina imparted to each article. Only rarely does the total number of replicas exceed twelve.
The heading therefore covers not only the original models made by the sculptor but also copies and reproductions of those models made by the second process described above, whether these are made by the sculptor himself or by another artist.
The heading excludes the following articles, even if they are designed or created by
artists:
(a) Ornamental sculptures of a commercial character.
(b) Articles of personal adornment and other works of conventional craftsmanship of a
commercial character (ornaments, religious effigies, etc.).
(c) Mass produced reproductions in plaster, staff, cement, papier maché, etc
* * * *
Heading 9703, HTSUS, provides for original sculptures and statuary. The ENs to heading 97.03 note that "[t]his heading covers original sculptures and statuary, ancient or modern." Note 3 to Chapter 97 further observes that works of conventional craftsmanship of a commercial character are excluded from this heading.
Counsel references New York Ruling Letter (NY) 866093, dated October 28, 1991, in which CBPO determined that Pierre Picard was a professional artist of the free fine arts, and that several unspecified sculptures of his creation were therefore an original sculpture of heading 9703, HTSUS. However, in the instant case, counsel has submitted no evidence that it was Pierre Picard that created the instant pendant. Rather, counsel states that the light pendant was created “under the guidance” of Pierre Picard—and further provides no proof that Picard was in any way involved, either as a creator or as a supervisor, in the making of the pendant. Neither has any declaration or affidavit by the artists, seller, or importer been submitted pursuant to 19 CFR 10.48. We also have no evidence that Picard’s apprentices, Thierry and David Duboscq, are professional artists of the free fine arts. Thus, we cannot be certain of either the identity of the creator of the pendant, nor whether the creator is or should be recognized as a professional artist. Consequently, NY 866093 has little bearing on the applicability of heading 9703, HTSUS, to the instant merchandise. Furthermore, since no declaration was filed by the artist, seller, shipper, or importer of the instant merchandise showing that the item is original, the evidentiary requirements, of 19 CFR 10.48, supra, have not been met.
In addition, without detracting from the skill or work that may have been involved in creating the pendant, we do not find that it is an original sculpture for the purposes of heading 9703, HTSUS. The Courts have addressed the requirement of “originality” in the context of this heading in several rulings, which have stated that a sculpture or statue is “original” for the purpose of classification within this provision if the artist who executed the sculpture or statuary exercised his own esthetic imagination and artistic conception in creating the work. See H.H. Elder & Co, Forest Lawn Co. v. United States, 64 Cust. Ct. 182, C.D. 3979 (1970). In H.H. Elder, the Court, using this “originality” test, determined that a bust of George Washington, sculpted by a professional sculptor with instructions to produce a bust that would look like the one in the Old North Church in Boston, Massachusetts, was not classifiable as "original sculpture or statuary" of item 765.15, TSUS (emphasis added), but was classifiable as "[s]tone statutory and sculptures not specially provided for, the professional productions of sculptors only" of item 513.51, TSUS.
The Court went on to state:
Since there is also no proof that the bust of George Washington in Old North Church, Boston, is itself an original sculpture and work of art in the tradition of the free fine arts in that medium, there is no basis upon which we can find that the imported bust is a reproduction of an original sculpture [citation omitted], let alone a reproduction of a work of art, made from the sculptor's original work or model, as the law provides... These statues are merely faithful imitations of the ones at Forest Lawn; their successful execution was dependent solely upon [the sculptor's] skill in copying the so-called originals.
In HQ 966030, CBP similarly found that a stone figurine (ushabti) of Neferhotep was not an original statue or sculpture of heading 9703, HTSUS, because the underlying character and form of the piece was commonly used at its time of fabrication. The only unique portion of the ushabti was a small area where the hieroglyphics identifying the article as Neferhotep's were carved. Similarly, in HQ H136955, dated August 06, 2014, CBP held that a carved statute of Our Lady of Guadalupe was not an “original” statue because it did not differ in any substantial respect from common and widespread images and statues of Our Lady of Guadalupe.
While cases decided under the TSUS are not dispositive on classification issues under the HTSUS, they may offer some guidance in determining classification under the HTSUS, particularly when the corresponding language is essentially identical. The nomenclature in heading 9703, "[o]riginal sculptures or statuary" is unchanged from predecessor tariffs (item 765.15, TSUS; paragraph 1807(a), Tariff Act of 1930, as amended), and the modifier "in any material" and applicable legal notes represent only "minor changes" (see Hewlett-Packard Co. v. United States, CIT Slip Op. 98-76 (1998), affirmed, CAFC Slip Op. 98-1537)) from the predecessor provisions. Accordingly, decisions under the TSUS and previous tariffs in regard to heading 9703 are properly instructive in the interpretation of heading 9703. See e.g., HQ 966030, dated January 28, 2003.
While attractive in appearance, the pendant is a fairly generic example of pendants of a kind used for hanging lights. We note numerous examples of similar merchandise. See e.g., http://www.ironwareinternational.com/catalog?q=pendant; http://www.homedepot.com/p/Hampton-Bay-Bristol-Collection-1-Light-Nutmeg-Bronze-Pendant-FNK8911AL/202064733; http://www.delmarfans.com/murray-feiss/celine/p1205fsv/; http://www.delmarfans.com/murray-feiss/lucia/p1258bus/; https://www.amazon.com/s/ref=sr_pg_3?rh=n%3A228013%2Cn%3A%21468240%2Cn%3A495224%2Cn%3A5486428011%2Cn%3A3736681%2Cp_n_material_two_browse-bin%3A5740651011&page=3&ie=UTF8&qid=1487194796; https://www.amazon.com/Currey-Company-9054-1-Light-Cupertino/dp/ B00AWKBO1M/ref=sr_1_137?s=lamps-light&ie=UTF8&qid=1487195460&sr=1-137&refinements=p_n_material_two_browse-bin%3A5740651011.
We do not find that the instant pendant differs in any substantial respect from similar merchandise available from either Ironware International or numerous other retails. The number of knobs on the pendant shaft or the form of attachment to a ceiling fixture or shade are relatively minor decorative flourishes.
Finally, the instant pendant is not classified in heading 9703, HTSUS, because it is a commercial and utilitarian article. The predecessor of the HTSUS, the Tariff Schedules of the United States (TSUS), contained a similar provision to heading 9703.00.00, HTSUS. Item 765.15, TSUS, which provided for original sculptures and statuary (including the first 10 castings, replicas, or reproductions made from a sculptor’s original work or model with or without a change in scale and whether or not the sculptor is alive at the time the castings, replicas, or reproductions are completed) all the foregoing made in any form from any material as the professional productions of sculptors only, whether in round or in relief, and whether cut, carved or otherwise wrought by hand or cast. The headnotes for item 765.15, TSUS, specifically excluded from coverage, “any articles of utility or for industrial use”. This specific wording of the exclusion of articles of utility is not found in heading 9703.00.00, HTSUS. However, the exclusions stated in Note 3, Chapter 97, HTSUS, and as enumerated by the EN’s, of “works of conventional craftsmanship” and/or “ornamental sculptures of a commercial character”, even if the articles are designed or created by artists (sculptors), equates to the exclusion of articles of utility. See e.g., HQ H234009 April 15, 2015; HQ 966363, dated October 14, 2002; HQ 950127, dated August 31, 1992; NY 889119, dated August 17, 1993, cited by counsel, limited the sculptures to furniture “that are not capable of any functional use”, that is to say, articles of utility are not covered under heading 9703.00.00, HTSUS. The preceding rulings explained that while the courts have found that "articles of utility were not excluded if the artistic character became ‘so compelling that the utilitarian achievement of the artisan is lost in the realized sentiment of the artist’" (citing United States v. Olivotti, supra), articles such as teapots (HQ H234009), (vases, plates and candlesticks (HQ 966363), and lacquer boxes (HQ 950127), were still fulfilling their utilitarian purpose, and were not so rare or of special genius that it ought to be attributed to the works of the free fine arts. This same reasoning applies here. The instant pendant is sold and marketed on the importer’s website, www.ironwareinternational.com, as a ”light pendant”, compliant with a 60 watt max bulb, and crafted with a socket for the insertion of a light bulb. However decorative a light pendant may be, it serves the functional, utilitarian purpose of hanging a light from a ceiling, just as a candlestick is used to hold candles, or a teapot to dispense tea.
The instant pendant was liquidated in subheading 9405.40.60, HTSUS, as an other lamp of lighting fitting. However, the light pendant itself is not a lamp or light fitting, but rather a component of a complete article of heading 9405, HTSUS. The appropriate subheading to consider under heading 9405 is therefore 9405.99, HTSUS, and not 9405.40, HTSUS.
The courts have considered the nature of “parts” under the HTSUS and two distinct though not inconsistent tests have resulted. See Bauerhin Techs. Ltd. v. United States (“Bauerhin”), 110 F. 3d 774 (Fed. Cir. 1997). The first, articulated in United States v. Willoughby Camera Stores, Inc. (“Willoughby”), 21 C.C.P.A. 322, 324 (1933), requires a determination of whether the imported item is an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 778 (quoting Willoughby, 21 C.C.P.A. 322 at 324). The second, set forth in United States v. Pompeo (“Pompeo”), 43 C.C.P.A. 9, 14 (1955), states that an “imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS.” Id. at 779 (citing Pompeo, 43 C.C.P.A. 9 at 13). Under either line cases, an imported item is not a part if it is “a separate and distinct commercial entity.” Bauherin, 110 F. 3d at 779.
The pendant is described, marketed and sold as a light pendant on the importer’s website. After importation, it is incorporated into a complete lighting fixture and wired to transmit electricity to the lamp fitted in the socket. As the iron pendant contains the light socket and rings for attachment of the lamp shade, the pendant becomes an integral part of the whole article once assembled, without which the light could not function. The pendant further has no independent use, other than to hang a light. Thus, the light pendant is a part of a lighting fixture, classified in subheading 9405.99, HTSUS.
HOLDING:
The instant light pendant is classified in heading 9405, HTSUS, specifically subheading 9405.99.40, HTSUS, which provides for “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: Parts: Other: Other.” The 2013 column one, general rate of duty is 6% ad valorem.
You are instructed to deny the protest. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 CBP personnel, and to the public online at
http://www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division