CLA 2 RR:CR:GC 962431 HMC
Port Director
U.S. Customs Service
2nd & Chesnut Sts.
Philadelphia, PA 19106
RE: Protest 1101-98-100203; Lighting Fixtures; Chandeliers and Other Electric Ceiling or Wall Lighting Fittings, Of Base Metal
Dear Port Director:
This is in response to protest 1101-98-100203, 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 a submissions from counsel for the protestant, dated January 19, 1999, and September 1, 1999. The 1997 entry under protest was liquidated on September 4, 1998, and this protest timely filed on November 16, 1998.
FACTS:
The merchandise under protest is lighting fixture, model 67478. Counsel for the protestant provided pictures for various models and a chart with weights and values for models 66035, 66244, 67666, 67674 and 67478. Counsel also informed this office that these items are representative of models involved in other pending protests. A description of the other models follows (there may be other items invoiced in the entries; treatment of unlisted items should be consistent with this ruling):
Item # (colors Description
omitted)
66035 A chandelier with two levels of glass/acrylic panes. The top level has twelve octagonal panes shaped as a vertical rectangle with longer sides and 3-short sided ends. The lower level has a smaller circumference and eight octagonal panes. The metal and lights can be seen through the glass.
66054 A glass/acrylic chandelier with 5 shades shaped like domes. The shades are made of metal rims and opaque glass/acrylic. They are held by metal in the shape of an inverted U, which protrudes from the center of the lamp. The center is made of a shiny metal pendant.
66244 A glass/acrylic ceiling lamp shaped like an inverted funnel with a metal rim on top. A cable goes through the center of the metal rim and holds the lamp.
67666 5-light chandelier with polished brass finish and clear, diamond cut, acrylic prisms. Diameter: 17 inches, height: 131/2 inches, chain: 36 inches. Uses (5) clear candelabra base bulbs, torpedo, 60 watt max.
67674 8-light chandelier with polished brass finish and clear, diamond-cut, acrylic prisms. Diameter: 191/2 inches, height: 26 inches, chain: 36 inches. Uses (8) clear candelabra base bulbs, torpedo, 60 watt max.
67478 A wall fixture in the form of a bowl with a small plate that attaches to the wall. It is completely white and has a double cord-like design around the top of the bowl.
The percentages of component materials by weight and cost or value, respectively (weight/cost or value) were provided, as follows (the values 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 #
glass-acrylic/value
other parts weight/value
66035
4.52 lbs. / $20.93
4.52 lbs. / $9.18
66054
2.43 lbs. / $2.82
0.44 lbs. / $12.19
66244
5.03 lbs. / $3.81
4.52 lbs. / $1.80
67666
8.38 lbs. / $22.58
3.52 lbs. / $9.48
67674
16.41 lbs. / $44.29
5.83 lbs. / $15.71
67478
1.46 lbs. / $5.30
0.11 lbs. / $0.72
The entry was liquidated under a provision 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 under subheadings 9405.10.40, HTSUS, if made of brass, and 9405.10.60, HTSUS, if other than brass. The protestant contends that the articles 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. The protestant argues that the articles are composite goods and that the glass/acrylic is the component material that gives the lamps and chandeliers their essential character. Thus, the protestant contends that HQ 957363, dated March 15, 1995, which involved similar goods and upon which the port relied, should not apply. The protestant cites HQ 086166, dated April 9, 1990, in support of the argument that for the articles under consideration, the glass component that attracts the consumer is an important factor in determining essential character.
ISSUE:
Whether the lighting fixtures are classifiable as of base metal or other than base metal.
LAW AND ANALYSIS:
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 1997 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
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).
There is no disagreement that the articles under consideration are lamps and lighting fittings classified in heading 9405. The disagreement is over the material or component of the articles which gives them their essential character.
General EN (VIII) to GRI 3(b) states that the factor which determines essential character will vary as between different kinds of goods. The EN 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 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 961837, dated July 19, 1999, HQ 960861, dated July 19, 1999, and 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).
Counsel states that the holding of HQ 957363 is overly broad and that it nullifies the subheading 9405.10.80, HTSUS. We disagree. In classifying the lighting fixtures in that case we determined that the lighting fittings were similar to the electrical lighting fixtures of HQ 951126, in which we found that the role of the glass did not predominate over the role of the metal because the metal was indispensable. It was Customs view that the determinative factor in finding the essential character of the lighting fixtures in that case was the role of the constituent materials in relation to the use of the goods. This decision is not a nullification of classification of lighting fixture, under any other subheading.
We note rulings that have 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, dated March 7, 1995). 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. Furthermore, HQ 086166, dated April 9, 1990, held that curio and trinket boxes, both largely of glass, were described by heading 7013, HTSUS, as household articles of glass because the glass constituted the most distinctive feature of the box. It was the component that attracted the consumer. These cases demonstrate that Customs has considered appearance as a factor in essential character determinations.
It is our view that the essential character of lamp model 67478 is imparted by the glass/acrylic component. As the lights of HQ 086166, the glass/acrylic in the subject lights fixture is the most distinctive feature of the lamp. One would clearly buy this lamp for the shade’s white finish.
Notwithstanding this, we find that, as determined in HQ 957363, the metal in models 66035, 66054, 66244, 67666 and 67674 predominates over the glass. The metal framework of these models form the basic support and structure of the glass/acrylic and provides a striking appearance. The glass in these fixtures is clear-transparent glass that allow the light sockets, held by a metal base, to be visible through the glass. Thus, the design features of the lamps is such that it accentuates the lamps metal finishes.
Although the glass/acrylic prisms may have some effect on the light given by the fixtures, they do not have the special, decorative appearance of a "peach blossom" or "Tiffany-style" lamp. The metal components we find contribute more to the appearance of the articles (because of the framework) and, as the fixtures of HQ 957363, the metal components provide the basic structure, holding in place the lamp sockets and electric circuitry, as well as providing the form of the article and holding the prisms. Based on all relevant factors, including particularly the functions of the components, we conclude that the essential character of these articles is provided by the base metal. Therefore, the merchandise is classifiable under subheading 9405.10.40, HTSUS, if made of brass, or in subheading 9405.10.60, HTSUS, if made of a metal other than brass.
HOLDING:
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 in subheading 9405.10.40, HTSUS, if of brass or in subheading 9405.10.60, HTSUS, if of base metal other than brass.
The protest should be DENIED. 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