Application for Further Review of Protest No: 5501-08-100078; Bath Bar, Wall and Pendant Lighting Fixtures

HQ H071903 February 18, 2010 CLA-2- OT:RR:CTF:TCM H071903 TNA CATEGORY: Classification TARIFF NO.: 9405.10.60, 9405.10.80 Port Director, Dallas/Ft. Worth Service Port U.S. Customs and Border Protection 7501 Esters Blvd.,Suite 160Irving, TX 75063 Re: Application for Further Review of Protest No: 5501-08-100078; Bath Bar, Wall and Pendant Lighting Fixtures Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 5501-08-100078, timely filed on February 9, 2008, on behalf of LG Sourcing, Inc (“LG Sourcing”). The AFR concerns the classification of bath bar, wall and pendant lighting fixtures under the Harmonized Tariff Schedule of the United States (HTSUS). FACTS: The subject merchandise consists of six different types of lighting fixtures. The fixture assigned SKU 115280 is a bath bar fixture consisting of a round metal black plate with a single metal arm extending outward to a rolling horizontal metal bar that supports four metal fitters. These fitters contain lamp-holders and bell shaped glass shades. The commercial invoice for SKU 115280 states that it is 64% glass, 24% steel, and 12% electrical. The fixture assigned SKU 226823 is a restoration style bath bar fixture consisting of a metal back plate with a single metal arm extending outwards to a horizontal metal bar suspending three metal fitters with lamp-holders and stylized glass shades. It contains an escutcheon plate and cross bar. The fixture assigned SKU 161928 is a bath bar fixture consisting of a metal back plate with four metal arms extending outwards to four metal fitters with lamp-holders and stylized bell shaped glass shades. The fixture assigned SKU 155478 is a pendant fixture consisting of a large, round, concave glass shade suspended by a chain from the ceiling with metal leaves that decorate the glass and chain. In the center of the glass shade is a single fitter with lamp-holder. The fixture assigned SKU 155479 is a chandelier, which is a type of pendant or hanging fixture. It has a large metal center section consisting of three decorative metal arms extending out from the center, supporting three metal fitters with lamp-holders and stylized bell-shaped glass shades. The fixture assigned SKU 161922 is a wall-mounted sconce consisting of a back plate and a single metal arm that extends outward and supports a metal fitter with lamp holder and stylized bell-shaped glass shade with a single metal decorative wire, which has a leaf design, circling the glass. On September 28, 2006, the lighting fixtures entered at the Dallas/Fort Worth Port under subheading 9405.10.60, HTSUS. CBP liquidated the entries on August 10, 2007. The port classified the lighting fixtures in subheading 9405.10.60, HTSUS. The importer filed its protest on February 9, 2008, claiming that the correct classification for the fixtures is under subheading 9405.10.80, HTSUS. ISSUE: Whether wall, pendant, and restoration style bath bar lighting fixtures should be classified under subheading 9504.10.60, HTSUS, as lighting fittings: of base metal, or under subheading 9405.10.80, HTSUS, as lighting fittings, of other than of base metal? LAW AND ANALYSIS: This protest is properly filed under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation 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. 5501-08-100197 is 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. Specifically, the Protestant states that the port’s classification of its merchandise is inconsistent with the Court of International Trade’s decision in Home Depot, U.S.A., Inc. v. United States, 427 F. Supp. 2d 1278 (C.I.T. 2006). Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5. GRI 3(b) states that: When, by application of Rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows: … Mixtures, composite goods consisting or different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. GRI 3(c) states that: When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. The HTSUS headings under consideration are the following: 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: 9405.10.60 Other: 9405.10.80 Other In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The EN for heading 9405 states, in pertinent part, the following: This 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; watertight lamps Explanatory Note IX to GRI 3(b) states that: For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole, but also those with separable components, provided these components are adapted one to the other and are mutually complementary, and that together they form a whole which would not normally be offered for sale in separate parts… As a general rule, the components of these composite goods are put up in a common packing. EN VIII to GRI 3(b) provides: The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods. There is no dispute at GRI 1 that the merchandise is classified in heading 9405. The fixtures in the present case are imported packaged ready for retail sale with the metal fixture fully assembled and the glass shades individually wrapped or otherwise protected within the same box as the fixture.  Light bulbs are the only component that the consumer needs to add. Furthermore, the glass parts of the fixtures are adapted to fit the metal parts, and together they form a whole whose components are not generally put up for sale individually. As a result, we find that the subject light fixtures are composite goods under GRI 3(b), and must classify them according to their essential character into the appropriate subheadings as per GRI 6. In Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278, 1295-1356 (CIT 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007), the court classified many types of lighting fixtures, including a number that were restoration bath bars that were nearly identical to the subject merchandise. The court performed an “essential character” analysis on each lighting fixture at issue, examining such factors as the metal and glass’ surface area and weight, as well as each component’s material's role in relation to the use of the good. The good’s essential character varied based on the outcome of each part of the analysis. In particular, the Home Depot court found that the restoration bath bar it examined contained “metal components- ‘the arm break’ and ‘smooth tubing’- [that] creates the restoration style.” Home Depot, 427 F.Supp.2d 1278, 1342. The fixture’s metal component “consists of mounting plate with stem and cross-bar of a brushed chrome finish that gives the fixture its name,” the court stated. Id. at 1342-1343. The court found that the glass component comprised approximately two-fifths of the total visible surface area; weighed one-fifth of the entirety of the fixture; “direct[ed] and soften[ed] light through diffusion; protect[ed] the lamp; shield[ed] the lamp from view; contribute[d] to the decorative appearance and structure; and contribute[d] to the fixture's scale.” As for the fixture’s metal component, the court found that it made up one-half of the total visible surface area and weighed three quarters of the entirety of the fixture. In addition, the metal component “contribute[d] to the decorative appearance and structure; affixe[d] the fixture to the wall; house[d] the electrical components; largely establishe[d] the fixture's scale; and distinguishe[d] this fixture from a design and marketability stand.” Id. at 1342-1343. In accordance with Home Depot, CBP published “Guidance on the Classification of Decorative Light Fixtures” to guide the classification of these fixtures in accordance with the Home Depot decision. See http://www.cbp.gov/xp/cgov/trade/trade_programs/ entry_summary/light_fixtures.xml. This guidance states that: In general, bath bars consisting of a long back plate usually placed over the bathroom sink and mirror, containing multiple lamp holders, are classified in subheading 9405.10.80, HTSUS… However, if the metal component is highly stylized or visually the most prominent component, and provides the greatest visual appeal, the fixture is classified in subheading 9405.10.60, HTSUS, the provision for light fixtures of base metal. Such is the case in restoration bath bars, brass-end bath bars and other bath bars containing stylized metal components. In the present case, the restoration bath bar (SKU 226823) has arm breaks and smooth tubing that creates the restoration-style. Its escutcheon plate and cross bar are detailed and play an important part in the design and appearance of the fixture. These features distinguish this feature in terms of its marketability and design. As a result, this is a restoration style bath bar fixture. Therefore, its metal component provides its essential character, and the fixture is classifiable under subheading 9405.10.60, HTSUS, as other electric ceiling or wall lighting fittings of base metal. As such, the applicable duty rate is 7.6% ad valorem. On the other hand, the bath bar (SKU 115280) lacks the escutcheon plate and cross bar features that would define it as restoration style. The fixture appears to consist predominantly of glass, making the glass the dominant component of this fixture. As a result, it is this fixture’s glass component that forms its essential character. In accordance with CBP’s Guidance on the Classification of Decorative Light Fixtures, the bath bar (SKU 115280) is classified under subheading 9405.10.80, HTSUS, which provides for chandeliers and other electric ceiling or wall lighting fittings other than of base metal. As such, the duty rate is 3.9% ad valorem. The bath bar (SKU 161928) has a long black metal plate containing multiple lamp holders. It too lacks the distinguishing features of a restoration style fixture. Furthermore, the lamp shades are highly stylized. At the same time, however, the fixture contains metal leaves that wrap around the glass portion, thereby partially obscuring the glass. Because the glass and the metal appear to contribute equally to the item’s essential character, we classify the merchandise according to GRI 3(c). Therefore, it is classified under subheading 9405.10.80, HTSUS, which provides for chandeliers and other electric ceiling or wall lighting fittings other than of base metal. As such, the duty rate is 3.9% ad valorem. The pendant fixture (SKU 155478) is a hanging fixture. Metal leaves decorate the glass shades and chain, and partially cover the fixture’s glass component. The glass piece, however, is large, concave, and decorative. CBP’s Guidance on the Classification of Decorative Light Fixtures states that “in general, interior and exterior ceiling mounted pendant (hanging) fixtures are classified in subheading 9405.10.80, HTSUS… This is especially so when the non-metal component is highly stylized… However, if the metal component is highly stylized or visually the most prominent component and provides the greatest visual appeal, the fixture is classified in subheading 9405.10.60, HTSUS.” CBP believes that the glass and metal components contribute equally to this fixture’s essential character and therefore classifies it according to GRI 3(c). As a result, the instant fixture (SKU 155478) is classifiable under subheading 9405.10.80, HTSUS, which provides for chandeliers and other electric ceiling or wall lighting fittings other than of base metal. As such, the duty rate is 3.9% ad valorem. The chandelier (SKU 155479) is also a pendant, or hanging, fixture. In contrast to the pendant fixture (SKU 155478), this fixture features a highly stylized, large metal section consisting of three different arms and supporting three metal fitters. The fixture also contains three stylized glass shades, but it is the metal component that establishes the fixture’s scale and size, and contributes to its structure and decorative appearance. The metal part also defines the fixture from a marketing and design perspective. As a result, the metal component provides its essential character, and the fixture is classifiable under subheading 9405.10.60, HTSUS, as other electric ceiling or wall lighting fittings of base metal. As such, the applicable duty rate is 7.6% ad valorem. The wall-mounted sconce (SKU 161922) includes a black plate with a single metal arm. It has a stylized bell-shaped glass shade with a single metal decorative wire with a leaf design encircling the glass. The metal, therefore, covers part of the glass, but the glass contributes to the item’s overall appearance and function. CBP’s Guidance on the Classification of Decorative Light Fixtures states that “in general, interior or exterior wall mounted fixtures (sconces), consisting of a back plate and one or more arms attached to a lamp holder, fitter and shade, are classified in subheading 9405.10.80, HTSUS… This is especially so when the non-metal component is highly stylized. However, if the metal component is highly stylized or visually the most prominent component and provides the greatest visual appeal, the fixture is classified in subheading 9405.10.60, HTSUS.” Here, the glass and metal components contribute equally to this fixture’s essential character and therefore classifies the fixture according to GRI 3(c). As a result, the sconce (SKU 161922) is classifiable under subheading 9405.10.80, HTSUS, which provides for chandeliers and other electric ceiling or wall lighting fittings other than of base metal. As such, the duty rate is 3.9% ad valorem. HOLDING: By application of GRI 3(b), the restoration style bath bar (SKU 226823) and the chandelier (SKU 155479) are classified in heading 9405, HTSUS, specifically under subheading 9405.10.60, HTSUS, which provides for: 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: other: household. As such, the duty rate is 7.6% ad valorem. The bath bar (SKU 115280) is classified under subheading 9405.10.80, HTSUS, which provides for chandeliers and other electric ceiling or wall lighting fittings other than of base metal. As such, the duty rate is 3.9% ad valorem. By application of GRI 3(c), the bath bar (SKU 161928), the pendant fixture (SKU 155478), and the wall-mounted sconce (SKU 161922) are classified under subheading 9405.10.80, HTSUS, which provides for chandeliers and other electric ceiling or wall lighting fittings other than of base metal. As such, the duty rate is 3.9% ad valorem. You are instructed to deny the protest, except to the extent that reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance. 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 CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at 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