Application for Further Review of Protest No: 5501-08-100365; Bath Bar and Pendant Fixtures

HQ H071902 March 18, 2010 CLA-2- OT:RR:CTF:TCM H071902 TNA CATEGORY: Classification TARIFF NO.: 9405.10.80, 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: 5501-08-100365; Bath Bar and Pendant Fixtures Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 5501-08-100365, timely filed on August 29, 2008, on behalf of LG Sourcing, Inc (“LG Sourcing”). The AFR concerns the classification of bath bar, wall and pendant lighting fixtures under the Harmonized Tariff Schedule of the United States (HTSUS). FACTS: The subject merchandise consists of four different light fixtures: two bath bars (SKU 210972 and 210974); a chandelier (SKU 210979); and a wall-mounted fixture (SKU 210980). The importer claims that the merchandise consists of the components and proportions listed below, but does not provide the measurements used, whether weight, surface area, or some other form. SKU 210972 is a bath bar fixture consisting of a metal back plate with four metal arms extending outwards to four metal fitters with lamp-holders and stylized bell-shaped glass shades made of 48% glass, 30% polymer, 2% metal and 3% other. SKU 210974 is a bath bar fixture consisting of a metal back plate with three metal arms extending outwards to three metal fitters with lamp-holders and stylized bell-shaped glass shades. It is 43% glass, 35% polymer, 2% metal and 3% other. SKU 210979 is a chandelier and contains a highly stylized large metal stylized large metal center suspended from the ceiling by a metal chain. It contains several decorative metal arms that extend outwards and support metal fitters with lamp-holders and bell-shaped glass shades. It is made up of 43% glass, 18% polymer, 17% metal and 4% other. SKU 210980 is a type of pendant or hanging fixture. It contains a large metal center section suspended from the ceiling from two metal chains. It contains two decorative metal arms that extend outwards and support metal fitters with lamp-holders and stylized glass shades. It consists of 39% glass, 28% polymer, 17% metal, and 2% other. On April 29, 2007, the lighting fixtures entered at the Dallas/Fort Worth Port under subheading 9405.10.60, HTSUS. CBP liquidated the entries on March 14, 2008 in subheading 9405.10.60, HTSUS, as 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: household. The importer filed its protest on February 9, 2008, claiming that the correct classification for the fixtures is under subheading 9405.10.80, 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: other: household. ISSUE: Whether bath bar and pendant 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 protested 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. 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 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. 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, 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 that were nearly identical to the subject merchandise. 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's 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 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 210972 and SKU 210974 are both bath bar fixtures. However, neither of them contain the escutcheon plate or detail cross bar that are typical of the restoration style. In addition, the glass parts of these fixtures are their most prominent features. As a result, the glass gives these items their essential character. Therefore, these fixtures are classified under subheading 9405.10.80, HTSUS, which provides for chandeliers and other electric ceiling or wall lighting fittings other than of base metal. SKU 210979 is a chandelier, a type of pendant or hanging fixture. SKU 210980, referred to as a “semi flush mount” fixture, is attached to two chains that are suspended from a square metal piece that is itself attached to a vertical wall. Because of its suspension from a vertical wall, SKU 210980 is more of a sconce than a hanging or pendant fixture. Both SKU 210979 and SKU 210980 contain highly stylized metal centers and long metal chains with which to suspend the glass part of the fixture. They both also contain stylized metal arms and metal fitters. As a result, the metal constitutes these items’ essential character. Home Depot classified similar lighting fixtures according to their metal component, finding that in these types of fixtures, the metal “consists of a highly stylized framework, contributes mainly to the decorative appearance and structure; suspends the fixture from the ceiling; houses the electrical components; establishes the fixture's scale; creates the fixture's style; and defines and distinguishes this fixture from a design and marketing perspective.” Home Depot, 30 C.I.T. 445, 514-515. As a result, SKU 210979 and 210980 are both classified under subheading 9405.10.60, HTSUS, as other electric ceiling or wall lighting fittings of base metal. As such, the applicable duty rate is 7.6% ad valorem. HOLDING: By application of GRI 3(b), SKU 210979 and 210980 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. SKU 210972 and SKU 210974 are classified under subheading 9405.10.80, which provides for chandeliers and other electric ceiling or wall lighting fittings other than of base metal. As such, the duty rate is 3.9% ad valorem. You are instructed to deny the protest, except to the extent that reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance. 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