• HQ H106787
• Aug 08, 2010

• Type : Classification • HTSUS : 9405.10.80; 9405.10.60

CLA-2- OT:RR:CTF:TCM H106787 TNA

Port Director
Savannah Service Port
U.S. Customs and Border Protection
1 East Bay StreetSavannah, GA 31401

Re: Application for Further Review of Protest No: 1703-10-100130; Classification of Decorative Lighting Fixtures

Dear Port Director:

The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 1703-10-100130, timely filed on March 10, 2010, on behalf of Kichler Lighting. The AFR concerns the classification of bath bar, ceiling, wall and pendant lighting fixtures under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS: The subject merchandise consists of 17 light fixtures. SKU #3667AP is a pendant ceiling fixture that consists of a large square textured glass diffuser suspended by a single metal support. SKU #3752NI is a pendant ceiling fixture that consists of a large bubble glass diffuser suspended by a center metal tube and three additional metal tubes. The metal is steel with a nickel finish. SKU #65185 is a pendant ceiling fixture that consists of a multi-colored, Tiffany-style glass, bell-shaped shade that is suspended by a single metal tube. SKU #65244 is a pendant ceiling fixture consisting of a stylized, Tiffany-style, oval-shaped glass shade that is suspended by two metal supports. The glass shade measures 16 1/2 wide by 10 1/2 inches high by 36 1/2 inches long. SKU #65278 is a pendant-style ceiling fixture with a glass shade consisting of geometric insets of colored glass in a modernist arrangement (akin to Tiffany-style shades), suspended from an elongated hourglass-shaped tube.

SKU #5097NI is a restoration-style bath fixture that consists of a metal mounting plate, stem, and cross bar that support two glass components that may be mounted either above or below the bar. SKU #5097OZ is a restoration-style bath fixture. It is in the same style as SKU #5097NI but has an Olde Bronze finish. SKU #5098NI is a restoration-style bath fixture that consists of a metal mounting plate, stem and cross bar that support three white etched glass components. SKU #5932NI is a bath bar fixture with a metal backplate and two curved metal arms that support two decorative, bell-shaped glass components.

SKU #6006WH is a flush wall sconce with a large white shade that completely covers the fitting. SKU#6521NI is a wall sconce with a metal back plate and a single glass component that is significantly larger than the metal component. SKU #6966BK is a wall fixture with a metal backplate that supports five curved glass components.

SKU #7003OZ is a ceiling mount fixture with a single bubble glass component that is mounted into a fitter. SKU #7011NI is a square ceiling flush mount with a bubble glass component mounted into a fitter. SKU #8053MUL is a ceiling flush mount dome fixture with a glass dome that is nearly the whole fixture. SKU #10310WH is a square ceiling flush mount fixture that consists of a flat white plastic diffuser mounted to a square metal fitter. SKU #10315WH is a ceiling flush mount that is a 4’ fluorescent strip fixture. It consists of a clear prismatic plastic strip diffuser that covers both the fixture and the lamps.

The lighting fixtures entered at the Savannah Port between October 26, 2008 and November 13, 2008. One of the subject fixtures, SKU #3667AP, was entered under subheading 9405.10.40, HTSUS, as “Lamps and lighting fittings… Of brass.” The rest were entered under subheading 9405.10.60, HTSUS, as “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: 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.”

CBP liquidated the entries as entered between September 11, 2009 and September 25, 2009. The importer filed its protest on March 10, 2010, claiming that the correct classification for the fixtures is under subheading 9405.10.80, HTSUS, which provides for “Lamps and lighting fittings:… other...”

ISSUE:

Whether bath bar, pendant, wall, and ceiling lighting fixtures should be classified under subheading 9504.10.60, HTSUS, as other electric ceiling or wall lighting fittings of base metal, or under subheading 9405.10.80, HTSUS, as other electric ceiling or wall lighting fittings?

LAW AND ANALYSIS:

Initially, we note that the matter is protestable under 19 U.S.C. §1514(a)(2) against your 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. 1703-10-100130 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 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: …. 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:

9405.10.40 Of brass

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, HTSUS. 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.  Furthermore, the glass parts of the fixtures are adapted to fit the metal parts, and together they form a whole. As a result, at GRI 6, we find that the subject light fixtures are composite goods under GRI 3(b).

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 of restoration bath bars similar to some of the subject fixtures. 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 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 bars 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 a 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 the holding in 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, SKU #5097NI, SKU #5097OZ, and SKU #5098NI are restoration-style bath fixtures. They all contain the escutcheon plate or detail cross bar that are typical of the restoration style. As a result, as per Home Depot and CBP’s published guidance, the metal gives these items their essential character. Therefore, these fixtures are classified under subheading 9405.10.60, HTSUS, which provides for chandeliers and other electric ceiling or wall lighting fittings of base metal.

SKU #5932NI is a bath bar fixture containing two lamp holders and decorative bell-shaped glass diffusers. Its metal component is simple and its glass component is highly stylized. As per Home Depot and CBP’s published guidance, the glass gives SKU #5932NI its essential character. As a result, it is classified under subheading 9405.10.80, HTSUS, which provides for chandeliers and other electric ceiling or wall lighting fittings of other than base metal.

SKU #3667AP, SKU #3752NI, SKU #65185, SKU #65244, and SKU #65278 are hanging, pendant fixtures. 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.” SKU #65185, SKU #65244, and SKU #65278 all contained highly stylized Tiffany-style or other stylized, colored glass shades suspended by one or two metal tubes. In each case the glass is the prominent feature of the fixture. As a result, we find that the glass imparts the essential character of the fixtures and they are classified in subheading 9405.10.80, HTSUS, which provides for chandeliers and other electric ceiling or wall lighting fittings of other than base metal.

In SKU #3667AP and SKU #3752NI, the glass is highly stylized and is the more prominent feature of the fixture. As a result, SKU #3667AP, SKU #3752NI, SKU #65185, SKU #65244, and SKU #65278 are classified in subheading 9405.10.80, HTSUS, which provides for chandeliers and other electric ceiling or wall lighting fixtures of other than base metal.

The Home Depot court also examined other types of interior ceiling-mounted fixtures, such as globes and domes, that are at issue here. There, the court found that the glass portion of the fixture had a larger weight than the fixture’s metal component and contributed more to the role of the fixture in relation to the use of the good than did the metal component. As a result, the court found that the glass formed the essential character of a globe-shaped fixture. With respect to globe and dome fixtures, CBP’s “Guidance on the Classification of Decorative Light Fixtures” states that “interior ceiling mounted fixtures consisting of a standard metal fitter and shade are classified by the material of the shade. These usually include, but are not limited to: globe, bubble, mushroom, dome, and drum.”

Thus, the flush wall sconces, SKU #6006WH, SKU#6521NI, and SKU #6966BK, are classified in subheading 9405.10.80, HTSUS, which provides for chandeliers and other electric ceiling or wall lighting fixtures of other than base metal. See Home Depot, 427 F. Supp. 2d 1278; “Guidance on the Classification of Decorative Light Fixtures.”

SKU #7003OZ, SKU #7011NI, SKU #8053MUL, and SKU #10315WH are flush ceiling mount fixtures classified in subheading 9405.10.80, HTSUS, which provides for chandeliers and other electric ceiling or wall lighting fixtures of other than base metal. See Home Depot, 427 F. Supp. 2d 1278; “Guidance on the Classification of Decorative Light Fixtures.” Upon examination of pictures of this flush mount fixture, SKU #10310WH’s metal fitter and plastic diffuser appear equally prominent. As a result, under GRI 3(c), Home Depot and CBP’s “Guidance on the Classification of Decorative Light Fixtures,” SKU #10310WH is classified in subheading 9405.10.80, HTSUS, which provides for chandeliers and other electric ceiling or wall lighting fixtures of other than base metal. See Home Depot, 427 F. Supp. 2d 1278; “Guidance on the Classification of Decorative Light Fixtures.”

HOLDING:

By application of GRI 3(b) via GRI 6, SKU #5097NI, SKU #5097OZ, and SKU #5098NI 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. The 2008, general column one duty rate is 7.6% ad valorem. SKU #5932NI, SKU #3667AP, SKU #3752NI, SKU #65185, SKU #65244, SKU #65278, SKU #6006WH, SKU#6521NI, SKU #6966BK, SKU #7003OZ, SKU #7011NI, SKU #8053MUL, and SKU #10315WH are classified under subheading 9405.10.80, which provides for chandeliers and other electric ceiling or wall lighting fittings other than of base metal. The 2008, general column one duty rate is 3.9% ad valorem.

By application of GRI 3(c) via GRI 6, SKU #10310WH is classified in subheading 9405.10.80, HTSUS, which provides for chandeliers and other electric ceiling or wall lighting fixtures of other than base metal. The 2008, general column one duty rate is 3.9% ad valorem.

You are instructed to ALLOW the protest in part, and DENY it in part.

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