Application for Further Review of Protest No 1703-10-100282; Ceiling Lighting Fixtures

HQ H129675 March 28, 2011 CLA-2- OT:RR:CTF:TCM H129675 EG CATEGORY: Classification TARIFF NO.: 9405.10.60; 9405.10.80 Port Director U.S. Customs and Border Protection 1 East Bay Street Savannah, GA 31401 Attn: Ann Herche, Import Specialist Re: Application for Further Review of Protest No: 1703-10-100282; Ceiling Lighting Fixtures Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 1703-10-100282, timely filed on June 24, 2010, on behalf of Kichler Lighting (“Kichler”). The AFR concerns the classification of ceiling lighting fixtures under the Harmonized Tariff Schedule of the United States (HTSUS). FACTS: The subject merchandise consists of twenty-eight different types of light fixtures. U.S. Customs and Border Protection (CBP) has already issued rulings which classify seven of the subject light fixtures. In Headquarters Ruling (HQ) H112720, dated October 22, 2010, CBP classified two of the subject light fixtures (SKU #s 2752NI and 8209NI) under the Harmonized Tariff Schedule of the United States (HTSUS). CBP classified both light fixtures under subheading 9405.10.80, HTSUS, which provides for other electric ceiling or wall lighting fittings other than of base metal. In HQ H127198, dated March 11, 2011, CBP classified five of the subject light fixtures (SKU #s 206NI, 209OB, 5913NI, 5913TZ and 8110NI) under subheading 9405.10.80, HTSUS. Therefore, this ruling will only classify the twenty-one remaining light fixtures. Nine of the light fixtures are flush mount ceiling fixtures with a dome-shaped shade/diffuser (SKU #s 8208NI, 8076OZ, 8109NI, 8653 TZ, 8654TZ, 8655NI, 8655TZ, 8851SC and 10865NI). Three of the light fixtures are flush mount ceiling fixtures with a mushroom-shaped shade/diffuser (SKU #s 206OZ, 208WH and 210WH). One of the light fixtures is a flush mount ceiling fixture with a bubble-shaped shade/diffuser (SKU # 8881TZ). Three of the light fixtures are bath bars which feature a wide oval back plate and curved arms which extend out to support glass bell-shaped shades (SKU #s 5992OZ, 5993NI and 5993OZ). One of the light fixtures is a three lamp wall mount restoration style bath bar (SKU # 6083NI). This light fixtures consists of a small back plate with a single arm and cross bar. The arm break and smooth tubing creates the “restoration style.” Two of the light fixtures have small metal back plates with arms that curve outwards to support stylized glass bell-shaped glass shades (SKU #s 5914NI and 6122CH). One of the light fixtures is a wall sconce (SKU # 5471NI). This fixture consists of a back plate and a single arm attached to a lamp holder, fitter and a glass shade. One of the light fixtures is a semi flush pendant fixture with a large bubble-shaped glass shade (SKU # 3718NIA). The pendant is suspended by a central metal tube with three additional metal tubes extending outwards from the ceiling mount to the perimeter of the shade. The metal tubes are simple in design and are not highly stylized. 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 two entries at issue in this protest. The fixtures entered at the Port of Savannah on February 11, 2009 and March 11, 2009, under subheading 9405.10.60, HTSUS. CBP liquidated the entries as entered on December 28, 2009 and January 22, 2010, respectively. The importer timely filed its protest on June 24, 2010, claiming that the correct classification for the fixtures is under subheading 9405.10.80, HTSUS, which provides for lighting fixtures other than base metal lighting fixtures. ISSUE: Whether the 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, as other electric ceiling or wall lighting fittings other than of 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 February 11, 2009.  19 U.S.C. § 1514(c)(3). Further Review of Protest No. 1703-10-100282 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 (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. 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 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 2009-2010 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. 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, we find that the subject light fixtures are composite goods under GRI 3(b). 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 thirteen flush ceiling mounted light fixtures at issue (SKU #s 8208NI, 8076OZ, 8109NI, 8653 TZ, 8654TZ, 8655NI, 8655TZ, 8851SC, 10865NI, 206OZ, 208WH, 210WH and 8881TZ) 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 thirteen flush ceiling mounted fixtures (nine dome-shaped fixtures, three mushroom-shaped fixtures and one bubble-shaped fixtures) are classified under subheading 9405.10.80, HTSUS, as light fixtures consisting of a material other than base metal. 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 four bath bars at issue, three of them have wide oval back plates with very little styling (SKU #s 5992OZ, 5993NI and 5993OZ). Since the glass shades are more visually prominent and highly stylized then the metal component, these three bath bars are classified under subheading 9405.10.80, HTSUS. However, the fourth bath bar is a restoration bath bar (SKU # 6083NI). It features a very prominent smooth metal rod above the three 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 metal component under subheading 9405.10.60, 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 two wall mounted fixtures consist of a small oval back plate and curved metal arms which are not highly stylized (SKU #s 5914NI and 6122CH). The lamp holders contain bell-shaped, stylized glass shades. Since the glass shades are more visually prominent and make up a larger portion of the fixture than the base metal portion, the two wall mounted fixtures are classified according to the glass shades 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 subject wall sconce is comprised of a large glass shade with basic metal housing (SKU # 5471NI). The glass shade diffuser is more stylized than the metal components. Since the glass shade plays a larger role in the function and style of the light fixture, this wall sconce will be classified based upon its glass shade under subheading 9405.10.80, HTSUS. 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 pendant fixture at issue has a large, bubble-shaped glass diffuser and simple metal arms which support the structure (SKU # 3718NIA). Because the glass shade is larger, more stylized and visually prominent than the metal portion, the pendant fixture is classified based upon the glass shade under subheading 9405.10.80, HTSUS. In the present case, twenty of the twenty-one light fixtures are classified according to their glass shades/diffusers under subheading 9405.10.80, HTSUS. The restoration bath bar (SKU # 6083NI) 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), SKU #s 8208NI, 8076OZ, 8109NI, 8653 TZ, 8654TZ, 8655NI, 8655TZ, 8851SC, 10865NI, 206OZ, 208WH, 210WH, 8881TZ, 5914NI, 6122CH, 5471NI, 3718NIA, 5992OZ, 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), SKU # 6083NI 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 twenty-one 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