CLA-2 RR:CTF:TCM H278850 MB
Director
Customs and Border Protection
Centers of Excellence and Expertise
Consumer Products & Mass Merchandising
157 Tradeport Drive
Atlanta, GA 30354
Attn: Loreen Buchanan, Senior Import Specialist
Re: Application for Further Review of Protest No. 1704-16-100178; Classification of Lava Lamps
Dear Director:
The following is our decision regarding the Application for Further Review (AFR) of Protest 1704-16-100178, filed January 27, 2016, on behalf of Home Depot USA, Inc. (Protestant). The Protest AFR concerns the classification of lava lamps under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
At issue in the instant protest are two different types of lava lamps which are identical in size (14-1/2”) and design (“Classic Novelty Lamp”). They vary only in color (Pink/Purple and Yellow/Blue). 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 protest covers seven (7) entries of the subject merchandise made from September 24, 2014, through December 3, 2014, and liquidated from August 7, 2015, through October 16, 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.”
ISSUE:
Whether the subject lava lamps are 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 is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on 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. 1704-16-100178 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’s (C.I.T.) 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 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.
The classification of substantially similar merchandise was addressed in HQ H271913, dated March 31, 2017. Specifically, it addressed five (5) different types of lava lamps which were identical in design and varied only in color. The lava lamps at issue are substantially similar in that they measure approximately the same, are made from the same component materials, and function in the same manner.
By application of GRI 3(b) and 6, the 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.
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.
You are instructed to GRANT 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 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, Regulations and Rulings of the Office of International Trade 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 Harmon, Director
Commercial and Trade Facilitation Division