CLA 2 RR:CR:GC 960861 PH
Port Director
U.S. Customs Service
1 East Bay Street
Savannah, Georgia 31401
RE: Protest 1703-97-100079; Lighting fixtures
Dear Port Director:
This is in response to protest 1703-97-100079, which pertains to the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of electric lighting fittings of metal and glass. In the preparation of this ruling, consideration was given to the supplemental submissions of July 31, 1997, and February 25 and June 21, 1999, as well as arguments made by counsel for the protestant in a meeting with representatives of this office on June 21, 1999. We regret the delay.
FACTS:
Five entries, each in 1996, are included in the protest. The merchandise in the protested entries consists of lighting fixtures, specifically described as follows:
Item # (colors Description
omitted)
2030_02 Outdoor ceiling fixture (similar in shape to item #2030_08, below).
2030_08 Outdoor ceiling fixture (square metal base to attach to the ceiling, from which metal framing extends to hold four trapezoidally shaped side panes of glass and a square bottom pane of glass).
311_OCO Florentine wall fixture (circular wall-mount, from which a "U"-shaped connection extends to a small circular metal fitting to which a tulip-shaped glass shade (with fluted petals) is attached).
327/1 Wall fixture with clear prismatic ribbed glass shade fixture (circular wall-mount, from which a connection ("fancy" in shape and design) extends to a small circular metal fitting to which a half-globe ribbed shade is attached and which has a substantial piece of metal trim attached to its outer edge).
401_OJO Jelly jar wall light with coated aluminum screw shell (circular wall mount, metal cylindrical top, with jelly jar-like one-piece glass bottom (not threaded)).
406S3NBK Outdoor coach lantern with coated aluminum screw shell (similar in appearance to item #59411, below, except that there is a metal protuberance from the bottom of the article almost as long as the body of the article is high and a "knobbed" top).
406SB5VBB Solid brass beveled glass outdoor coach lantern (same as item 406S3NBK, above, except the metal is brass instead of aluminum).
54602 Outdoor aluminum wall mount, scroll & etched glass (top portion similar in appearance to item #59411, below, although not as large in proportion to the rest of the article; no bottom portion, metal framing with rectangular panes of glass in the framing).
59408 Cast aluminum wall lantern with Photo Cell, beveled glass (similar in appearance to item #59411, below, except that there are six panes of glass and they are not trapezoidal in shape, but curved, so that the diameter of the top of the glassed-in portion is greater than that of the bottom of that portion).
59411 Cast aluminum outdoor carriage lantern, down light, beveled glass (has the appearance of an old-fashioned wall lamp, with metal shaped top (taking up almost half of the height of the article), metal framing, and four trapezoidally shaped panes of glass (decreasing in width toward the bottom of the fixture), with a bottom also of metal).
59412 Cast aluminum outdoor carriage lantern, post top, beveled glass (similar in appearance to item # 59411, above, except some of these items appear to be constructed for placing on top of a post; others of this item are constructed for placement on a wall).
59455 Cast aluminum outdoor six sided lantern (similar in appearance to item #59411, above, except that there are six trapezoidally shaped panes of glass).
59460 Cast aluminum outdoor "mini" lantern (metal top portion, with one piece glass bottom portion, appearing to be 8-sided, diminishing in diameter towards the bottom).
811B0C0 Five light chandelier with frosted tulip glass shades ("Fancy" metal cylinder piece to which are attached five "U"-shaped metal connections ending in small circular fixtures to which are attached tulip shaped shades).
814B000 Five light candlestick chandelier (similar to item # 811B0C0, except that the metal connections end in candle-like light holders; protestant agrees with Customs classification of these articles in subheading 9405.10.60, HTSUS).
832008 Hanging pendant, clear ribbed glass (chain from which hangs a small metal or ceramic fixture, to which is attached a ribbed glass crown from which a gradually downward curving shade (apparently not of glass) hangs; protestant may agree with Customs classification of these articles in subheading 9405.10.60, HTSUS).
RV5004PB Four light alabaster glass vanity strip (circular wall attachment to which is attached a"fancy" metal strip onto which at regular intervals are attached four "U" shaped metal connections to circular fixtures to which are attached shades similar in shape to a bell).
The percentages of component materials by weight and cost or value, respectively (weight/cost or value), for the items are as follows (the percentages may vary slightly with the different permutations of the items (e.g., polished brass, painted black, white), but they are considered to be representative for each item):
Item # Brass Ceramic Glass Steel or Other
(solid) other metal
2030L02 .5/10.26 7/10.26 43.3/20.5 47.1/48.72 2.2/10.26
2030S02 .7/10.17 5.3/6.78 46.5/15.25 45.1/61.02 2.4/6.78
2030L08 .47/.49 6.95/6.49 43.29/43.56 47.08/47.17 2.21/2.29
2030S08 .72/.7 5.27/4.66 45.52/45.22 46.09/47.09 2/4/2.33
2030L28 .47/.49 6.95/6.49 43.29/43.56 47.08/47.17 2.21/2.29
2030S28 .72/.7 5.27/4.66 45.52/45.22 46.09/47.09 2.4/2.33
311_0C0 _ 11.35/11.07 45.6/40.4 42.84/46.46 .21/2.01
327/1 _ 7.18/5/36 59.94/40 31.58/53.66 1.3/.99
401_0J0 .01/.79 11.6/12.4 55.9/49.61 32/59/37.20 _
406S3NBK .13/.2 7.03/11.07 32.14/40.24 59.42/46.48 1.28/2.01
406SB5VBB 50.54/66.14 6.93/10.05 36.23/18.52 6.3/5.29 _
54602 _ 2/10 42/5 56/85 _
59408 _ 3/25 26/5 71/70 _
59411 _ 3/10 26/5 71/70 _
59412 _ 3/10 26/5 71/70 _
59455 _ 3/10 22/10 75/80 _
59460 _ 2/10 42/15 56/75 _
811B0C0 _ 11.35/10.79 41.65/14.7 35/64.71 12/9.8
814B000 _ _ 2.16/3.78 76.24/80.99 21.6/15.24
832008 _ 3.35/1.64 44.23/25.47 51.82/71.83 .6/1.06
RV5004PB 7.3/6.7 4.9/38.3 42.1/42.8 45.7/12.2 _
The surface area percentages of glass vs. metal are given for some of the items. Those percentages are (glass/metal): item #’s 311_0C0 (41/59); 327/1 (55/45); 401_0J0 (41/59); 811B0C0 (72/28); RV5004PB (58/42).
The entries were liquidated January 10 or February 7, 1997, with classification of the merchandise as chandeliers and other electric ceiling or wall lighting fittings, excluding those of a kind used for lightning public open spaces or thoroughfares of base metal other than brass, in subheading 9405.10.60, HTSUS. On April 9, 1997, counsel for the importer filed this protest.
The protestant contends that the articles should be classified as other electric lamps and lighting fittings of base metal other than brass, in subheading 9405.40.60, HTSUS, except for item #’s 2030L02, 2030L08, 311A0C0, 311B0C0, 327/1, 406SB5VBB, 59408, 811B0C0, 814B000, 832008, and RV5004PB. The protestant contends that item #’s 2030L02, 2030L08, and 59408 should be classified as other electric lamps and lighting fittings of other than base metal, in subheading 9405.40.80, HTSUS; item #’s 311A0C0, 311B0C0, and RV5004PB should be classified as chandeliers and other electric ceiling or wall lighting fittings, excluding those of a kind used for lighting public open spaces or thoroughfares of other than base metal, in subheading 9405.10.80, HTSUS; and item # 406SB5VBB should be classified as other electric lamps and lighting fittings of brass, in subheading 9405.40.40, HTSUS. The protestant concedes that item #’s 814B000 and 832008 are correctly classified as liquidated (see above).
The protestant argues that the language in subheading 9405.10, HTSUS "excluding those of a kind used for lighting public open spaces or thoroughfares" excludes from coverage of the subheading all exterior lighting which, therefore, must be classified as other electric lamps and lighting fittings in subheading 9405.40, HTSUS. The protestant cites Appendix O of Annex III to Doc. 26.010 E, Summary Record of the 20th Session of the Harmonized System Committee and its Working Party (April 2, 1980) for the proposition that "[t]he Working Party (and eventually the Contracting Parties) agreed ‘to restrict products of the first 1-dash subheading [i.e., 9405.10] to those not suitable for exterior use.’" The protestant argues that the structure of heading 9405 supports this distinction, with subheadings 9405.10 and 9405.20, HTSUS, naming interior lighting (chandeliers and other electric ceiling and wall lighting fittings, table, desk, bedside or floor-standing lamps, so that "[w]ith the exception of christmas tree lighting sets, the balance of electric lighting is covered by heading 9405.40." The protestant cites the Harmonized Commodity Description And Coding System Explanatory Notes (ENs) for heading 9405 (i.e., in that "porch and gate-lamps" are distinguished from "lamps and lighting fittings normally used for illumination of rooms") and Customs rulings (i.e., Headquarters Rulings (HQs) 088232 dated March 15, 1991, 087838 dated December 7, 1990, 085074 dated November 3, 1989, and 080758 dated June 24, 1988) in support of its contentions.
The protestant also argues that some of the articles are mounted on poles or otherwise mounted as sidewalk lighting or similar exterior lighting and, thus, they may not be classified as "ceiling or wall lighting fittings" in subheading 9405.10, HTSUS. The two items cited as examples of these articles are not included in the protest , although an illustration of item #59412 bears the annotation "[a]ppears to be intended for lamp post".
The protestant contends that the articles are composite goods composed of glass and metal components and, pursuant to GRI 2(b) and 3, they must be classified according to the component material that gives them their essential character. The protestant cites EN GRI 3(b)(VIII) in this regard, and argues that the weight and surface area of the glass component versus the base metal component support the glass component as providing the essential character of the articles. The protestant argues that "... the emphasis placed upon the glass components in the items’ design and marketing, provide persuasive support for this conclusion." The protestant contends that the position Customs has taken in this regard (that the metal components are indispensable because they form the structure of the fixture to allow it to perform its basic function of providing light and they hold the lamp sockets and electric circuitry in place) "render[s] nugatory" the subheadings for lighting fixtures of other than base metal. The protestant also contends that the Court of Appeals for the Federal Circuit (CAFC) decision in the leading case of Better Home Plastics Corp. v. United States, 119 F.3d 969 (Fed. Cir. 1997), makes clear that other factors than the function of the components must be considered (i.e., quoting from Better Homes, 119 F.3d at 971, "the court’s decision did not rely solely, or even hinge, on the indispensability of the water retaining function [and] [t]he decision was substantially based on the importance of the other functions as well as the cost of the entire set").
The protestant argues that the essential character of different kinds of articles should be determined by different criteria, contending that although "[l]ooking at the functional role of the constituent materials in sausage casings [see Vista International Packaging Co. v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995)], or at the indispensable function of a plastic shower curtain that is part of a cheap set to keep water in the bathtub, is a logical way to make a difficult essential character determination as to those products[,] [i]t is not however, the basis for engaging in such an analysis when other considerations are present, such as the lack of any one indispensable function performed by the metal or glass components, or the significance of the components in the appearance and perception of the article." The protestant cites two rulings (New York Ruling Letter (NY) 806691 (undated, responding to a February 8, 1995, letter) and HQ 959270 dated January 24, 1997, in support of the argument that for the articles under consideration, the component which gives the outward appearance is an important factor in determining essential character. The protestant provides three affidavits, by an official of a lighting company, a dealer in antiques, including lighting accessories, and an interior decorator, in support of its contention that "[t]he visual impact of the glass simply renders the glass components [of the articles under consideration] the most distinguishing feature of the light fixtures." Related to this argument, the protestant contends that it is the glass component which gives the commercial appeal of the articles and, in several instances, determines the commercial description of the articles. Each of the affiants concludes that the glass components distinguish the articles and have the greatest visual impact on consumers (except for item #RV5004PB, in which the metal and glass components are stated by each affiant to provide equal distinction and have an equal visual impact, and item # 811B0C0, in which the metal and glass components are stated by one affiant to provide equal distinction and have an equal visual impact on the consumer).
ISSUES:
(1) Whether the lighting fixtures are classifiable as chandeliers and other electric ceiling or wall lighting fittings, excluding those of a kind used for public open spaces or thoroughfares, in subheading 9405.10, HTSUS, or other electric lamps and lighting fittings, in subheading 9405.40, HTSUS.
(2) Within either of those subheadings, whether the lighting fixtures are classifiable as of base metal or other than base metal, and if of base metal, of brass or other than brass.
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed (within 90 days after but not before the notice of liquidation (19 U.S.C. 1514(c)(3)(A)) and the matter protested is protestable (see 19 U.S.C. 1514(a)(2) and (5)).
The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, provides, in pertinent part, that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes. GRI 2(b) provides, in pertinent part, that "[a]ny reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance [and] [t]he classification of goods consisting of more than one material or substance shall be according to the principles of [GRI] 3." Pursuant to GRI 3(b), "... goods [which] are, prima facie, classifiable under two or more headings [and are] [m]ixtures, composite goods consisting of different materials or made up of different components, [or] goods put up in sets for retail sale, which cannot be classified by reference to [GRI] 3(a) [i.e., by the heading which provides the most specific description], shall be classified as if they consisted of the material or component which gives them their essential character ...." GRI 6 provides, in pertinent part, that "... the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable."
The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the ENs should always be consulted. See T.D. 89 80, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).
The 1996 HTSUS subheadings under consideration are as follows:
9405 Lamps and lighting fittings including searchlights and spotlights 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
9405.10.60 Other
9405.10.80 Other
9405.40 Other electric lamps and lighting fittings:
Of base metal:
9405.40.40 Of brass
9405.40.60 Other
9405.40.80 Other
There is no disagreement that the articles under consideration are lamps and lighting fittings classified in heading 9405. The disagreement is over the meaning of the clause, "excluding those [chandeliers and other electric ceiling or wall lighting fittings] of a kind used for lighting public open spaces or thoroughfares" and the material or substance of the articles which gives them their essential character.
In regard to the meaning of "public open spaces or thoroughfares" in the above-quoted phrase, it is well established that tariff terms are to be construed in accordance with their common and commercial meanings which are presumed to be the same (Nippon Kogaku, Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380 (1982); see also Nylos Trading Company v. United States, 37 CCPA 71, 73, C.A.D. 423 (1949); Winter-Wolff, Inc., v. United States, 996 F. Supp. 1258 (CIT 1998)). The common meaning of "public" is "1 of, belonging to, or concerning the people as a whole; of or by the community at large" and that of "thoroughfare" is "1 a way or passage through [or] 2 a public street open at both ends, esp. one through which there is much traffic; highway; main road" (Webster’s New World Dictionary, Third College Edition, at 1087, 1393 (1988)). Clearly, the common meaning of the quoted phrase is not equivalent to "exterior" ("1 a) on the outside; outer; outermost", supra, at 481), as opposed to "interior" ("1 situated within; on the inside; inner", supra, at 704), as contended by the protestant.
We disagree with the contention by the protestant that the history of the Harmonized Tariff Schedule (HTS) supports the conclusion that subheading 9405.10, HTSUS, was intended to be restricted to articles not suitable for exterior use. In this regard, the protestant quotes Appendix O of Annex III to Doc. 26.010 E, Summary Record of the 20th Session of the Harmonized System Committee and its Working Party (April 2, 1980) for the proposition that "[t]he Working Party (and eventually the Contracting Parties) agreed ‘to restrict products of the first 1-dash subheading [i.e., 9405.10] to those not suitable for exterior use.’" A thorough review of the available record demonstrates that although the Harmonized System Committee (HSC) and other HTS bodies considered such a provision, it was rejected. That is, in 1977 there was no restriction, whether for exterior lighting or with the current language (see HSC document 22.924E, February 23, 1977). In 1979, apparently at the suggestion of Sweden, an exclusion "not suitable for exterior use" was proposed to be added to subheading 9405.10 (HSC documents 25.864 E, December 18, 1979; 25.908, January 24, 1980). In 1980, it was determined to delete the exclusion "not suitable for exterior use" because "it would not be easy to establish a distinction between lamps and lighting fittings for indoor lighting and those more specifically designed for outdoor use [so the HSC] considered it preferable to envisage regrouping these two categories in a single heading of the Nomenclature [this conclusion was specifically stated to be] in connexion with the application of subheadings 9405.10 and 9405.40" (HSC document 26.094 E, March 24, 1980). We believe that this history supports a conclusion that the phrase in subheading 9405.10 "excluding those of a kind used for lighting public open spaces or thoroughfares" is not equivalent to an exclusion of exterior lighting.
We are bound by the common meaning of the quoted exclusion. That is, those lighting fittings excluded from subheading 9405.10, HTSUS, by the quoted phrase are of a kind used for lighting places which "[belong] to, or [concern] the people as a whole" or public streets or highways. Examples of lighting within the restriction would be lights of a kind used for lighting streets or parks. This conclusion is not inconsistent with EN 94.05 (i.e., the listing of lamps "normally used for the illumination of rooms" and "lamps for exterior lighting" does not necessarily indicate an intent to classify these categories in subheading 9405.10 and 9405.40, HTSUS, respectively, particularly given the above-described history of the provision). Nor are the rulings cited by the protestant in this regard inconsistent with this conclusion. That is, the motion sensor lighting systems or security lighting systems, in HQs 080758 (a ruling under the Tariff Schedules of the United States (TSUS)), 085074, 087838 (also under the TSUS), and 088232 were not "[c]handeliers and other electric ceiling or wall lighting fittings" within subheading 9405.10; they were special purpose lighting not similar to chandeliers or other ceiling or wall lighting. Furthermore, we have been advised that such fixtures are of the kind affixed to a roof, eave, or light pole, so that they are not "ceiling or wall lighting fittings".
The lighting fixtures under consideration are not of a kind used for public open spaces or thoroughfares (as commonly defined; see above). Accordingly, we conclude that, with one exception, the articles under consideration are "[c]handeliers and other electric ceiling or wall lighting fittings" within subheading 9405.10, HTSUS. The exception is the models of item #59412 which are constructed for placement on a pole (item #’s 59412PTWHT and 59412PTBLK) which, as indicated above, are not "ceiling or wall" lighting fittings. They are classifiable in subheading 9405.40, HTSUS.
Regardless of whether the articles are classifiable in subheading 9405.10 or 9405.40, HTSUS, we must determine the material or component which gives the articles their essential character. That is, pursuant to GRI 2(b), made applicable by GRI 6 to the subheadings of heading 9405 at the same level, the reference in the subheadings of heading 9405 to lighting fixtures of base metal or other than of base metal, and within the "other" provision, of brass or other than of brass, is taken to include a reference to goods consisting wholly or partly of such materials or substances and classification is required to be according to the principles of GRI 3. Under GRI 3 (again, made applicable to the subheadings of heading 9405 by GRI 6), the articles are, prima facie, classifiable under two or more subheadings, and they are not classifiable pursuant to GRI 3(a) (according to the most specific description) because the competing subheadings each refer to part only of the materials or substances so that the subheadings are to be regarded as equally specific. Therefore, pursuant to GRI 3(b), the articles "... shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable."
EN Rule 3(b)(VIII) lists as factors to help determine the essential character of such goods the nature of the materials or components, their bulk, quantity, weight or value, and the role of the constituent materials or components in relation to the use of the goods. Recently, there have been several Court decisions on "essential character" for purposes of GRI 3(b). These cases have looked primarily to the role of the constituent materials or components in relation to the use of the goods to determine essential character. See, Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F.3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also, Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), affirmed CAFC No. 98-1227 (March 16, 1999). We note that, as pointed out by the protestant, the CAFC in Better Home Plastics emphasized that all of the relevant factors should be considered in an essential character analysis. That is, the CAFC stated (119 F.3d at 971):
The [CIT] carefully considered all of the facts, and, after a reasoned balancing of all the facts, concluded that Better Home Plastics offered sufficient evidence and argument to overcome the presumption of correctness. The court concluded that the indispensable function of keeping water inside the shower along with the protective, privacy and decorative functions of the plastic liner, and the relatively low cost of the sets all combined to support the decision that the plastic liner provided the essential character of the sets. ... The court’s decision did not rely solely, or even hinge, on the indispensability of the water-retaining function. The decision was substantially based on the importance of the other functions as well as the cost of the entire set.
Based on the foregoing, we have taken the position that, in an essential character analysis for purposes of GRI 3(b), the role of the constituent materials or components in relation to the use of the goods is generally of primary importance, but the other factors listed in EN Rule 3(b)(VIII) should also be considered, as applicable (see, e.g., HQ 961095 dated July 20, 1998; HQ 962047 dated May 17, 1999). Specifically, with regard to essential character analyses of lighting fixtures of heading 9405, we have looked primarily to the roles of the constituent materials or components and to the component or material which is indispensable to the use of the good. See, e.g., HQ 957363 dated March 15, 1995, in which we held that the metal component provided the essential character of the lighting fixtures considered therein because "[t]he metal components are indispensable to the structure of the ... fittings as the metal forms the structure ... [and] hold[s] the lamp sockets and electric circuitry in place" (HQ 951126 dated May 12, 1992, and the rulings cited therein reasoned similarly to determine that the metal component of lighting fixtures provided their essential character).
As the protestant notes, we have also looked to the effect of the component materials on the overall appearance of a lighting fixtures (see HQ 959270 dated January 24, 1997, and NY 806691 (referred to above)). In HQ 959270, the essential character was determined to be provided by the glass and ceramic components on the basis of the special appearance (with a "peach blossom" motif) of the lighting fixture, which was found to be provided by those components (i.e., "[a]n appropriate description of this lamp is a glass and ceramic lamp with metal trim"). NY 806691 also involved a lighting fixture with a special appearance, a "Tiffany-style" fixture with decorative glass panels. We have considered the affidavits provided by the protestant in our consideration of this factor.
The various ceiling fixtures with a square metal base attached to the ceiling, from which a metal frame extends to hold side panes and a bottom pane of glass (item #’s 2030...) do not have the special appearance of a "peach blossom" or "Tiffany-style" lamp. The metal provides the structure for the fixture, holding in place the lamp sockets and electric circuitry, as well as the simple panes of glass fitted into the metal framework. The weight and cost or value of the base metal versus those of the glass and other materials for these articles is not conclusive (the weight is no less than 45% of the total and the cost is no less than 47% of the total). We conclude that the essential character of these articles is provided by the base metal. Because the brass content is negligible, they are classified in subheading 9405.10.60, HTSUS.
In regard to the jelly jar light and "mini" lantern (item #’s 401_0J0 and 59460), these articles appear to be relatively inexpensive fixtures (see Better Home Plastics, supra). The metal component of the articles provides the structure, holding in place the lamp sockets and electric circuitry, with the glass component basically used to protect the light bulb. Although the weight and cost or value of glass and other non-base metal components in item # 401_0J0 are greater than the weight and cost or value of the base metal components, that is not true of item # 59460 and, in any case, the comparative amounts are not large enough to be conclusive. Based on the contribution of the components to the indispensable function of the articles, as well as all other relevant factors (see above), including the relatively inexpensive nature of these articles, we conclude that the essential character of these articles is provided by the base metal and, as there is no brass content or only a negligible brass content, they are classified in subheading 9405.10.60, HTSUS. Similarly, item # 832008, which also appears to be a relatively inexpensive fixture, and in which the non-base metal components make up a lesser percentage of the weight and cost or value of the whole, is classified in subheading 9405.10.60, HTSUS, as the protestant appears to concede.
In the case of the various outdoor coach or carriage lanterns and similar fixtures (item #’s 406S3NBK, 406SB5VBB, 54602, 59408, 59411, 59412, and 59455), the metal component provides a substantial part of the appearance of the article (i.e., in the worked, decorative, tops and bottoms of the articles and the substantial framework), as well as providing the structure for the lamp sockets and electric circuitry. The glass components basically consist of panes of glass fit into the metal framework. In each of these items, the weight and cost or value of the base metal components are greater than those of the non-base metal components. We conclude that the essential character of these articles is provided by the base metal. The base metal of item # 406SB5VBB is primarily brass and, therefore, this item is classified in subheading 9405.10.40, HTSUS. The remaining articles addressed here have no brass or a negligible brass content and, therefore, that they are classified in subheading 9405.10.60, HTSUS.
In the case of the two chandeliers (item #’s 811B0C0 and 814B000), the protestant concedes that classification of item # 814B000 in subheading 9405.10.60 is correct, apparently because there is virtually no glass component in this article. The glass components of item # 811B0C0 basically consist of shades to go over the light bulbs. The metal components provide the physical structure and contribute substantially to the decorative appearance of the article. They also provide the structure for the lamp sockets and electric circuitry. Although the weight of the non-base metal components is greater than that of the base metal components, the cost or value of the base metal components is greater. We conclude that the essential character of both of these chandeliers is provided by the base metal and, as there is no brass content, they are classified in subheading 9405.10.60, HTSUS.
The remaining articles (item #’s 311_0C0, 327/1 and RV5004PB) are varieties of interior wall lamps. Although each has a glass shade (or shades in the case of item # RV5004PB), the shades do not have the special appearance of those of the "peach blossom" or "Tiffany-style" lamps of HQ 959270 and NY 806691, respectively (see above). In fact, the shades merely shade, or cover, the light bulb, and are not part of a special motif. The metal components of each of the articles contribute substantially to the decorative appearance of the articles (e.g., the graceful U-shaped holder for the fixture in item # 311_0C0, the "curlicue" on the end of the holder and the trim around the shade in item 327/1, and the special form of the portion that holds the four sockets and shades in item RV5004PB). As with the other articles, the physical structure (which contributes substantially to the form of the articles), as well as the structure for the lamps sockets and electric circuitry, is provided by the base metal component. The percentages of weight and cost or value are not conclusive (e.g.,base metal component weight and cost or value percentages for item # 311_0C0 not less than 42/46, # 327/1 not less than 31/53, and RV5004PB not less than 53/18 (in the case of the last, this figure may be understated in view of the 38.3% for "electric parts")). We conclude that the essential character of these articles is provided by the base metal and, as there is no brass content or, in the case of item #RV5004PB, the brass component is substantially less than the "other" base metal component, they are classified in subheading 9405.10.60, HTSUS.
HOLDINGS:
(1) The lighting fixtures are classifiable as chandeliers and other electric ceiling or wall lighting fittings, excluding those of a kind used for public open spaces or thoroughfares, in subheading 9405.10, HTSUS, except for the models of item #59412 which are constructed for placement on a pole (item #’s 59412PTWHT and 59412PTBLK) which are classifiable as other electric lamps and lighting fittings, in subheading 9405.40, HTSUS.
(2) Within these subheadings, the essential character of the lighting fixtures is provided by the base metal component and they are classified as lamps and lighting fittings of base metal other than brass, in subheading 9405.10.60, HTSUS, or, in the case of the models of item # 59412 which are constructed for placement on a pole, as other electric lamps and lighting fittings of base metal other than brass, in subheading 9405.40.60, HTSUS, except for item # 406SB5VBB in which the base metal which provides the essential character is brass and the item is classified as lamps and lighting fittings of brass, in subheading 9405.10.40, HTSUS.
The protest should be ALLOWED in part (as to the models of item # 59412 which are constructed for placement on a pole and item # 406SB5VBB, which are to be classified as above) and DENIED in part (as to the remaining items). 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director,
Commercial Rulings Division