CLA-2 OT:RR:CTF:TCM HQ H271913 NCD
Port Director
Port of New York/Newark
U.S. Customs and Border Protection
1210 Corbin Street
Elizabeth, NJ 07201
Attn: Jennifer Tagliaferro, Supervisory Liquidation Specialist
Re: Protest and Application for Further Review No: 4601-15-101369; Classification of lava lamps; Revocation of NY J85271 and NY H82040 by operation of law
Dear Port Director:
The following is our decision as to Protest and Application for Further Review No. 4601-15-101369, timely filed on September 16, 2015 on behalf of BJ’s Wholesale Club, Inc. (“BJ’s” or “Protestant”), concerning classification of various lava lamps under the Harmonized Tariff Schedule of the United States (HTSUS). The merchandise at issue was entered with and liquidated by U.S. Customs and Border Protection (CBP) at the Port of New York/Newark (“the Port”). Protestant asserts that CBP’s classification of the subject merchandise at liquidation is incorrect.
FACTS:
At issue in the instant protest are five different types of lava lamps which are identical in design and vary only in color. Each lamp consists of a metal base housing an incandescent bulb and various electrical components, a glass container filled with a liquid medium in which wax formations are dispersed, and a metal cap. The glass container is affixed between the metal base and cap, and the entire item is conical in form. Upon activation of the lamp, soft light is projected from the base onto the contents of the glass container and the wax is set in motion within the container. This results in a visual display in which the wax formations dynamically flow, collide, and separate within the liquid medium, and which provides a calming effect for the observer.
The subject lava lamps were entered on June 10, 2014 and liquidated on April 24, 2015 in subheading 9405.40.60, 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: Other electric lamps and lighting fittings: Of base metal: Other.” Protestant claims that the subject merchandise is properly classified in subheading 9405.40.80, 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: Other electric lamps and lighting fittings: Other: Other.”
Following submission of the instant protest, we requested and received from Protestant a letter detailing the respective weights and surface areas of the lava lamps’ bases, glass components, and caps (“supplemental submission”). The supplemental submission was forwarded, along with samples of the subject merchandise, to a CBP laboratory for verification. The weight and surface area breakdowns provided in Protestant’s supplemental submission, as well as the results of the CBP laboratory’s analysis, are detailed in the below tables:
Table 1: Component Weights
Supplemental Submission
CBP Laboratory Report
In pounds
As percentage of total
In pounds
As percentage of total
All components
2.81 lbs.
100%
2.76 lbs.
100%
Cap
0.03 lbs.
1%
0.026 lbs.
1%
Base + cap
0.24 lbs.
9%
Base + cap + electrical
0.52 lbs.
19%
0.53 lbs.
19%
Glass component
0.88 lbs.
32%
Globe + liquid + wax
2.29 lbs.
81%
2.24 lbs.
81%
Table 2: Component Surface Areas
Supplemental Submission
CBP Laboratory Report
In square inches
As percentage of total
In square inches
As percentage of total
All components
140.57 sq. in.
100%
134.86 sq. in.
100%
Base
52.23 sq. in.
37%
52.75 sq. in.
39%
Glass
76.10 sq. in.
54%
71.14 sq. in.
53%
Cap
12.24 sq. in.
9%
10.98 sq. in.
8%
ISSUE:
Whether the subject lava lamp is properly classified in subheading 9405.40.60, HTSUS, as an electric lamp of base metal or in subheading 9405.40.80, HTSUS, as an “other” electric lamp.
LAW AND ANALYSIS:
Initially, we note that 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. (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. 4601-15-101369 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because Protestant alleges that the decision is inconsistent with a previous CBP decision with respect to substantially similar merchandise.
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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. GRI 2(b) states, 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 that “classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3 provides that "composite goods consisting of different materials or made up of different components” are to be classified “as if they consisted of the material or component which gives them their essential character,” and where this is not possible, “under the heading which occurs last in numerical order among those which equally merit consideration.” 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.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The 2014 HTSUS provisions under consideration in the instant case 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
9405.40.80 Other
As a preliminary matter, it is undisputed that the subject merchandise is described as an electric lamp and is therefore classified at the 4-digit level in heading 9405, HTSUS, and at the 6-digit subheading level in heading 9405.40, HTSUS. At issue is the lava lamps’ classification at the 8-digit subheading level, a determination that requires identification of the material(s) of which the lamps are constructed.
Subheading 9405.40.60, HTSUS, applies to electric lamps “of base metal,” whereas subheading 9405.40.80, HTSUS, covers electric lamps of materials other than base metal. Pursuant to the Court of International Trade (C.I.T.)’s decision in Home Depot, U.S.A., Inc. v. United States, lamps comprised of base metal and other materials are composite goods partially described as “of base metal” and partially as “other” for classification purposes. See 427 F. Supp. 2d 1278, 1291-92 (Home Depot I), aff’d Home Depot USA, Inc. v. United States, 491 F.3d 1334 (Fed. Cir. 2007) (Home Depot II). As such, lamps of heading 9405 are not prima facie classifiable in either provisions pertaining to lamps of base metal or those covering lamps of other materials. See id. It is undisputed that in the instant case, the complete lava lamps are each comprised of a multitude of materials in addition to base metal, including glass, wax, liquid, and various electrical components. Consequently, they do not fall fully within the scopes of either heading 9405.40.60, HTSUS, or subheading 9405.40.80, HTSUS, and, in effect, cannot be classified by application of GRI 1.
Rather, as composite goods, the lava lamps are classified pursuant to GRIs 3(b) and 6, as if it consisted of the material that imparts its essential character. Home Depot I, 427 F. Supp. 2d at 1292. With respect to “essential character” for purposes of GRI 3(b), EN (VIII) to GRI 3(b) states as follows:
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.
In Home Depot II, in which the U.S. Court of Appeals for the Federal Circuit (C.A.F.C.) affirmed the C.I.T.’s above-referenced decision, the court held that an article’s essential character can only be correctly ascertained upon consideration of “many factors…specifically including but not limited to those factors enumerated in Explanatory Note (VIII) to GRI 3(b).” See 491 F.3d at 1337. The C.A.F.C. accordingly endorsed the C.I.T.’s approach to identifying essential character, which entailed comparing the respective surface areas, weights, and roles of the materials comprising the light fixtures at issue. See id.; see Home Depot I, 427 F. Supp. 2d at 1293-1358. Notably, in applying this approach, the C.I.T. found that while both the glass and metal components of the fixtures at issue contributed to the fixtures’ structural framework and decorative appearance, the glass components in a number of fixtures “further function[ed] to direct and soften light through diffusion, to protect the lamp, and to shield the lamp from view.” See Home Depot I, 427 F. Supp. 2d at 1293-1358. Where the glass components of those fixtures also exceeded the metal components in terms of surface area and weight, they were deemed the component imparting the fixtures’ essential character. See id.
Here, as discussed above, the instant lava lamps are comprised of metal bases and caps, glass globes filled with liquid and wax, and various internal electrical components. As demonstrated in Tables 1 and 2 above, Protestant’s supplemental submission and the CBP laboratory report are highly consistent, even if slightly incongruent, as to the reported surface areas and weights of these components. Both unequivocally indicate that the lava lamps’ glass component accounts for the majority – specifically 53-54% – of the lamps’ surface areas. The CBP laboratory report further indicates that the glass outweighs the metal components, which constitute only a small portion, possibly as low as 9%, of the lamps’ total weights. Moreover, similar to several of the fixtures in Home Depot, the glass arguably plays a more important role in relation to the lamps’ use than do the metal components. While the base and cap enable the upright placement of the lamp, contribute to its unique conical design, and house the electrical components, the glass further contributes to the lamps’ design, refracts and dampens light emitted by the bulb, and contains the liquid and wax that in turn provide the lamps’ signature visual display. Absent the tapered glass, therefore, the lava lamps would lack the features that impart its commercial identity. Given this, that the glass outweighs the metal components, and that the glass accounts for a majority of the lava lamps’ surface area, it is the glass that imparts the lamps’ essential character. As such, the lava lamps cannot be considered “of base metal” and are instead properly classified in subheading 9405.40.80, HTSUS, as “other” electric lamps.*
Lastly, we recognize that in New York Ruling Letter (NY) J85271, dated June 20, 2003, and NY H82040, dated June 25, 2001, CBP classified similarly-described lava lamps in subheading 9405.40.60, HTSUS. However, those rulings were issued prior to both Home Depot decisions and, to the extent they are inconsistent with the Home Depot decisions, are revoked by operation of law. Consequently, NY J85271 and NY H82040 do not preclude classification of the instant lava lamps in subheading 9405.40.80, HTSUS. In fact, as noted by Protestant, classification of the instant lava lamps there is supported by CBP’s most recent ruling on similar merchandise, NY L86161, dated July 22, 2005, in which a “Lava Night Light” was classified in subheading 9405.40.80, HTSUS.
HOLDING:
By application of GRIs 3(b) and 6, the subject lava lamps are classified in heading 9405, HTSUS, specifically in subheading 9405.40.8000, HTSUSA (Annotated), 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: Other electric lamps and lighting fittings: Other: Other.” The 2014 general column one rate of duty for subheading 9405.40.8000, HTSUSA, is 3.9% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
You are instructed to ALLOW 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 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 website 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