Application for Further Review of Protest No: 5501-08-100197; Bath Bar Lighting Fixtures

HQ H071797 January 15, 2010 CLA-2- OT:RR:CTF:TCM H071797 TNA CATEGORY: Classification TARIFF NO.: 9405.10.60 Port Director, Dallas/Ft. Worth Service Port U.S. Customs and Border Protection 7501 Esters Blvd.,Suite 160Irving, TX 75063 Re: Application for Further Review of Protest No: 5501-08-100197; Bath Bar Lighting Fixtures Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 5501-08-100197, timely filed on June 5, 2008, on behalf of LG Sourcing, Inc (“LG Sourcing”). The AFR concerns the classification of bath bar lighting fixtures under the Harmonized Tariff Schedule of the United States (HTSUS). FACTS: The subject merchandise consists of two different types of lighting fixtures, SKU 226879 and SKU 246490 (hereinafter “226879” and “246490”). 226879 is a restoration bath bar fixture that consists of a metal back plate with a single metal arm extending outwards to a horizontal metal bar suspending three metal fitters with lamp-holders and stylized alabaster glass shades. 246490 is also a restoration style bath bar fixture consisting of a metal back plate. It has a single metal arm extending outwards to a horizontal metal bar which supports three metal fitters with-holders and stylized glass shades. The merchandise covered by this protest consists of four entries of lighting fixtures entered from January 24, 2007, through February 3, 2007 and liquidated on December 14, 2007 in subheading 9405.10.60, HTSUS, as fixtures of base metal. The protest was filed on June 5, 2008, claiming classification in subheading 9405.10.80, as fixtures of other than base metal. ISSUE: Whether restoration style bath bar lighting fixtures should be classified as lighting fittings of base metal, or as lighting fittings, of other than base metal at the eight digit level of heading 9405, HTSUS? LAW AND ANALYSIS: This protest is properly filed under 19 U.S.C. §1514(a)(2) as a 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. 5501-08-100197 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 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. 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: 9405.10.60 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. 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.  The glass parts of the fixtures are adapted to fit the metal parts, and together they form a whole. As a result, we find that the subject light fixtures are composite goods under GRI 3(b), and must classify them according to their essential character into the appropriate subheadings as per GRI 6. 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 that were nearly identical to the subject merchandise. The court performed an “essential character” analysis on each restoration bath bar and found, first, that it was the “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 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 then examined such factors as the metal and glass’ surface area and weight, as well as each component’s role in relation to the use of the good. 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, as in Home Depot, the subject merchandise’s metal components- “the arm break” and “smooth tubing”- create the merchandise’s restoration style. Pictures of the merchandise show the metal component and the glass component as visually about equal in surface area. The metal component, however, also contributes to the fixture’s structure and is used to affix the fixture to the wall and house its electrical components. The metal section of the subject merchandise also makes up the majority of the fixture's scale and is the distinguishing feature from a design and marketability standpoint. Therefore, CBP finds that the fixtures’ metal component is visually the most prominent component and provides the fixture’s visual appeal. As a result, CBP finds that the subject merchandise should be classified in subheading 9405.10.60, HTSUS, as lighting fixtures of base metal, in accordance with the decision in Home Depot. HOLDING: By application of GRI 3(b), the bath bars lighting fixtures 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. As such, the duty rate is 7.6% ad valorem. You are instructed to DENY 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 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