Application for Further Review of Protest No 1703-10-100210; Forty Light Fixtures

HQ H127198 March 11, 2011 CLA-2- OT:RR:CTF:TCM H127198 EG CATEGORY: Classification TARIFF NO.: 9405.10.80; 9405.10.60 Port Director U.S. Customs and Border Protection 1 East Bay Street Savannah, GA 31401 Attn: Jessilynn Pilato, Import Specialist Re: Application for Further Review of Protest No: 1703-10-100210; Forty Light Fixtures Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 1703-10-100210, timely filed on May 5, 2010, on behalf of Kichler Lighting (“Kichler”). The AFR concerns the classification of forty light fixtures under the Harmonized Tariff Schedule of the United States (HTSUS). FACTS: The subject merchandise consists of forty different types of light fixtures. Twenty-two of the light fixtures are flush mount ceiling fixtures which consist of a metal fitter and a large glass shade/diffuser. Fourteen of these flush mount ceiling fixtures have a dome-shaped shade/diffuser (SKU #s 8048NI, 8052MUL, 8065TZ, 8076NI, 8108NI, 8110NI, 8654NI, 8655AB, 8841NI, 8842NI, 8849OB, 10864NI, 10864TZ and 10865TZ) (dome-shaped fixtures). Five of these flush mount ceiling fixtures have a mushroom-shaped glass shade/diffuser (SKU #s 206NI, 209NI, 209OB, 209OZ and 8209NI) (mushroom-shaped fixtures), and three of them have a bubble-shaped glass shade/diffuser (SKU #s 8880TZ, 8880WH and 8882WH) (bubble-shaped fixtures). Six of the light fixtures are pendant lights. These pendant lights are semi flush ceiling mounted fixtures with large, satin-etched white glass stylized shades/diffusers. Five of these pendant lights are suspended by a central metal tube with three additional metal tubes or rods extending outwards from the ceiling mount plate to the perimeter of the shade (SKU #s 3121NI, 3121NIA, 3121TZ, 3122NI and 3122TZ). The sixth pendant light consists of a large dome-shaped, satin-etched white glass stylized shade/diffuser and is suspended by a single central metal tube (SKU # 3242AP). Three of the light fixtures are wall sconces with small metal accents and large decorative glass shades/diffusers. One has a flower-petal shaped diffuser (SKU # 6930OB) and two have long oval contemporary shaped diffusers (SKU #s 6598NI and 6559NI). Three of the light fixtures are wall mount fixtures which feature a small oval back plate and curved metal arms (SKU #s 5913NI, 5913TZ and 5914TZ) (small back plate fixtures). The arms extend outwards to support between three and four lamp holders. The lamp holders contain bell-shaped glass shades. Six of the light fixtures are wall mounted bath bars. Five of these feature a long back plate with two or more curved metal arms extending outwards to support lamp-holders with bell-shaped, stylized glass shades (SKU #s 5992CH, 5992OZ, 5993CH, 5993NI and 5993OZ) (simple bath bars). The sixth bath bar is a five-light restoration bath bar with alabaster swirl glass shades (SKU # 6085NI) (restoration bath bar). This fixture consists of a mounting plate with a metal stem and cross-bar. 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. There are four entries at issue in this protest. The fixtures entered at the Port of Savannah between December 17, 2008 and January 14, 2009, under subheading 9405.10.60, HTSUS, which provides for lighting fixtures of base metal. CBP liquidated the entries as entered between November 6 and November 27, 2009. The importer filed its protest on May 5, 2010, claiming that the correct classification for the fixtures is under subheading 9405.10.80, HTSUS, which provides for lighting fixtures other than the base metal lighting fixtures of 9405.10.60, HTSUS. ISSUE: Whether the forty light fixtures should be classified under subheading 9504.10.60, HTSUS, as light fixtures of base metal, or under subheading 9405.10.80, as light fixtures of a material other than base metal? LAW AND ANALYSIS: This matter 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 for entries made on or after November 27, 2009.  19 U.S.C. § 1514(c)(3). Further Review of Protest No. 1703-10-100210 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 of Savannah’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 (Ct. Int’l Trade 2006) and with protest decisions at the Ports of Cleveland and Los Angeles. Merchandise imported into the United States is classified under the HTSUS. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 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 the 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 2009 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 * * * There is no dispute at GRI 1 that the merchandise is classified in heading 9405, HTSUS. Since both subheadings at issue fall under the same heading, GRI 6 requires that the classification of goods shall be determined according to the terms of those subheadings and to the GRIs 1 through 5. The fixtures in the present case are imported packaged ready for retail sale with the metal fixture fully assembled. The glass shades are individually wrapped or otherwise protected within the same box as the fixture.  In addition, the glass parts of the fixtures are adapted to fit the metal parts, and together they form a whole. As a result, the subject light fixtures are composite goods under GRI 3(b). Therefore, the component which imparts the essential character of the light fixture will determine the light fixture’s tariff classification. The Home Depot court examined the same types of light fixtures at issue here using a GRI 3(b) analysis. The court found that when the glass portion of the fixture was larger than the fixture’s metal component and when the glass portion contributed more to the use of the good than the metal component, the glass formed the essential character of the fixture. Home Depot, 427 F. Supp. 2d at 1295. When the glass forms the essential character of the fixture, the fixture must be classified under subheading 9405.10.80, HTSUS, as a light fixture comprised of a material other than base metal. Id. 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 (Guidance). This Guidance addresses all of the lighting fixtures at issue. Regarding flush ceiling mounted fixtures, the Guidance 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.” The twenty-two flush ceiling mounted light fixtures at issue are identical to the fixtures addressed in the Guidance. Each of the subject ceiling mounted fixtures consists of a standard metal fitter and a glass shade. For each one, the glass plays a larger role in relation to the use of the good than the metal fixture because it contributes both to the fixture’s function and decorative aspects. The glass diffuses light and protects the lamp while the metal supports the structure. The metal fitters are minimal and not highly stylized. As such, the twenty-two flush ceiling mounted fixtures (fourteen dome-shaped fixtures, five mushroom-shaped fixtures and three bubble-shaped fixtures) are classified under subheading 9405.10.80, HTSUS, as light fixtures consisting of a material other than base metal. With regard to pendant fixtures, the Guidance states that these are generally classified under subheading 9405.10.80, HTSUS, unless the metal components are highly stylized or more visually prominent. The six pendant fixtures at issue have large, satin-etched glass diffusers and simple metal arms which support the structure. Since the glass is a larger, more stylized component and plays a greater role in the pendant fixtures’ function, the six pendant fixtures are classified based upon the glass shade under subheading 9405.10.80, HTSUS. CBP’s Guidance states that wall sconces which consist of a shade mounted into a metal mounting cap or housing such that the shade appears flush with the wall are classified by the material of the shade. The three subject wall sconces are largely comprised of glass shade diffusers with minimal metal elements. The glass shade diffusers are stylized: one has a flower-petal shape (SKU # 6930OB) and two have long oval contemporary shapes (SKU #s 6598NI and 6559NI). Since the glass shades play a larger role in the function and style of the light fixtures, these light fixtures will be classified based upon their glass shades under subheading 9405.10.80, HTSUS. The Guidance also states that wall mounted fixtures which consist of a back plate and one or more arms attached to a lamp holder, fitter and shade, are typically classified by the glass shade under subheading 9405.10.80, HTSUS. However, if the metal component is highly stylized or visually the most prominent, then the wall mounted fixture will be classified by its base metal under subheading 9405.10.60, HTSUS. The three subject wall mounted fixtures consist of a small oval back plate and curved metal arms which are not highly stylized. The lamp holders contain bell-shaped, stylized glass shades. Since the glass shades are more visually prominent and contribute more to the function of the light fixture, the three wall mounted fixtures are classified according to the glass shades under subheading 9405.10.80, HTSUS. Under the Guidance, bath bars which consist of a long back plate and contain multiple lamp holders are generally classified based upon the glass shades under subheading 9405.10.80, HTSUS. However, if the metal component is visually the most prominent component and provides the greatest visual appeal, then the fixture is classified in subheading 9405.10.60, HTSUS. Such is the case with restoration bath bars, brass-end bath bars and other bath bars containing stylized metal components. Of the six bath bars at issue, five of them have long back plates with very little styling. (SKU #s 5992CH, 5992OZ, 5993CH, 5993NI and 5993OZ). Since the glass shades are more visually prominent and highly stylized then the metal component, these five bath bars are classified under subheading 9405.10.80, HTSUS. However, the sixth bath bar is a restoration bath bar (SKU # 6085NI). It features a prominent metal component of the restoration style, which hangs above the five bell-shaped glass shades. Since the metal component is more visually prominent then the glass shades and also plays a large role in the fixture’s function, the restoration bath bar will be classified according to its base metal component under subheading 9405.10.60, HTSUS. In the present case, thirty-nine of the forty light fixtures are classified according to their glass shades/diffusers under subheading 9405.10.80, HTSUS. The restoration bath bar (SKU # 6085NI) is the only light fixture which will be classified according to its prominent base metal component under subheading 9405.10.60, HTSUS. HOLDING: By application of GRI 3(b), thirty-nine light fixtures (SKU #s 8048NI, 8052MUL, 8065TZ, 8076NI, 8108NI, 8110NI, 8654NI, 8655AB, 8841NI, 8842NI, 8849OB, 10864NI, 10864TZ, 10865TZ, 206NI, 209NI, 209OB, 209OZ, 8209NI, 8880TZ, 8880WH, 8882WH, 3121NI, 3121NIA, 3121TZ, 3122NI, 3122TZ, 3242AP, 6598NI, 6559NI, 6930OB, 5913NI, 5913TZ, 5914TZ, 5992CH, 5992OZ, 5993CH, 5993NI and 5993OZ are classified in heading 9405, HTSUS, specifically under subheading 9405.10.80, 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: chandeliers and other electric ceiling or wall lighting fittings, excluding those of a kind used for lighting public open spaces or thoroughfares: chandeliers and other electric ceiling or wall lighting fittings, excluding those of a kind used for lighting public open spaces or thoroughfares: other.” As such, the general, column one 2009 rate of duty is 3.9% ad valorem. By application of GRI 3(b), one light fixture (SKU # 6085NI) is classified under subheading 9405.10.60, 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: chandeliers and other electric ceiling or wall lighting fittings, excluding those of a kind used for lighting public open spaces or thoroughfares: 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.” As such, the general, column one 2009 rate of duty is 7.6% ad valorem. Since re-classification of the merchandise as indicated above will result in a lower rate of duty than claimed on thirty-nine of the fixtures, you are instructed to ALLOW the protest in part and DENY the protest 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 of 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