Application for Further Review of Protest No 3401-12-100069; Lighting Fixtures

HQ H236645 July 16, 2014 CLA-2- OT:RR:CTF:TCM H236645 EGJ CATEGORY: Classification TARIFF NO.: 9405.10.80 Port Director U.S. Customs and Border Protection 112 West Stutsman Street Pembina, ND 58271 Attn: Heidi Olsonawski, Senior Import Specialist Re: Application for Further Review of Protest No: 3401-12-100069; Lighting Fixtures Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 3401-12-100069, timely filed on August 14, 2012, on behalf of Menards, Inc. (“Menards”). The AFR concerns the classification of lighting fixtures under the Harmonized Tariff Schedule of the United States (HTSUS). FACTS: Menards has protested the Port of Pembina’s classification of seven styles of lighting fixtures. The Port has already approved Menards’ protest for three out of the seven styles. This AFR will only address the tariff classification of those four styles which are still at issue: SKUs 3507040, 3507041, 3507044 and 3507045. SKU 3507040 is a chandelier style ceiling fixture which features a stylized, cylindrical metal center and seven curved metal arms. Each of the seven arms extends outwards to support a standard fitter. Each fitter holds a bell-shaped, opal-colored glass shade. The chandelier includes a base metal chain to hang from the ceiling. Glass comprises approximately half of the fixture’s total materials; the other half consists of a combination of steel, zinc and copper. This lighting fixture is pictured below:
SKU 3507041 is a wall-mounted fixture which features a small round back plate and four curved metal arms. The arms extend outwards to support four standard fitters. Each fitter holds a bell-shaped, opal-colored glass shade. Glass comprises approximately half of the fixture’s total materials; the other half consists of a combination of steel, zinc and copper. This lighting fixture is pictured below:
SKU 3507044 is a wall-mounted fixture which features a small round back plate and three curved metal arms. The arms extend outwards to support three standard fitters. Each fitter holds a bell-shaped, opal-colored glass shade. Glass comprises approximately half of the fixture’s total materials; the other half consists of a combination of steel, zinc and copper. This lighting fixture is pictured below:
SKU 350745 is a chandelier style ceiling fixture which features a stylized, cylindrical metal center and five curved metal arms. Each of the five arms extends outwards to support a standard fitter. Each fitter holds a bell-shaped, opal-colored glass shade. The chandelier includes a base metal chain to hang from the ceiling. Glass comprises approximately one-third of the fixture’s total materials; the two-thirds consist of a combination of steel, zinc and copper. This lighting fixture is pictured below:
One entry is at issue in this protest. The fixtures entered at the Port of Pembina North Dakota on February 10, 2012, under subheading 9405.10.60, HTSUS, as lamps of base metal. On April 27, 2012, Menards filed a post entry amendment to change the entered classification to 9405.10.80, HTSUS, as lamps other than of base metal. However, CBP denied the post entry amendment and on June 1, 2012, CBP liquidated the entry under subheading 9405.10.60, HTSUS, as lamps of base metal. On August 14, 2012, Menards timely filed the instant protest and AFR. ISSUE: Are the lighting fixtures 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: The matter is protestable as a decision on classification. 19 U.S.C. §1514(a)(2). Menards’ AFR satisfies the application criteria because Menards alleges that the Port of Pembina’s decision is inconsistent with a decision on the same or substantially similar merchandise by the Port of Minneapolis. 19 C.F.R. § 174.24(a). Menards filed Protest No. 3501-11-100021 at the Port of Minneapolis to protest the classification of certain lighting fixtures. Menards asserted that all of the subject lighting fixtures were classified under subheading 9405.10.80, HTSUS. The Port of Minneapolis granted Menards’ protest, which included three of the instant SKUs: 3507040, 3507041 and 3507045. 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. * * * GRI 3(c) states that: When goods cannot be classified by reference to 3 (a) or 3 (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration * * * The 2012 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. 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). In Home Depot, U.S.A., Inc. v. United States, 427 F. Supp. 2d 1278 (C.I.T. 2006) (Home Depot I) aff’d by Home Depot U.S.A., Inc. v. United States, 491 F.3d 1334 (Fed. Cir. 2007) (Home Depot II), the Court of International Trade (CIT) determined the tariff classification of different types of lighting fixtures. Applying GRI 3(b), the CIT examined several factors to determine which material imparted the essential character to each fixture, including: visible surface area, weight and role in relation to the finished good. Home Depot I, 427 F.Supp. 2d. at 1295. When the CIT could not determine which component imparted the essential character to a lighting fixture, the CIT applied GRI 3(c) to classify the fixture in subheading 9405.10.80, HTSUS. Id. at 1311 – 1312, 1323 - 1324. SKUs 3507041 and 3507044 are wall mounted fixtures which each consist of a small back plate, slender arms, standard fitters and bell-shaped glass shades. The glass shades are more visually prominent than the arms and the back plates. The glass shades and the metal components each comprise roughly half of the total constituent materials. While the base metal provides structural support for the glass shades, the base metal components are basic and are not highly stylized. The glass shades, however, diffuse the light from the lamps and have stylized bell-shaped glass. As the glass shades are more visually prominent, comprise half of the total materials, diffuse the light and create visual appeal, the glass shades impart the essential character to the wall mounted fixtures. SKUs 3507041 and 3507044 are both classified under subheading 9405.10.80, HTSUS, as lighting fittings of material other than base metal. SKUs 3507040 and 3507045 are chandeliers which each consist of a base metal chain, stylized cylindrical center, metal arms, standard fitters and bell-shaped glass shades. Both the metal and the glass components create visual appeal. The metal provides the structure to the chandelier and the glass shades diffuse the light. For SKU 3507040, the metal and glass components each provide approximately half of the total constituent materials. For SKU 3507045, the glass component comprises one-third of the total constituent material while the metal components comprise approximately two-thirds. Applying GRI 3(b), the material which imparts the essential character cannot be determined for these two SKUs. Thus, we must turn to GRI 3(c). Under GRI 3(c), we must classify the chandeliers under the subheading which occurs last in numerical order. Therefore, the two chandeliers of SKUs 3507040 and 3507045 are both classified under subheading 9405.10.80, HTSUS, as chandeliers of materials other than base metal. HOLDING: By application of GRI 3(b) and GRI 6, SKUs 3507041 and 3507044 are classified under subheading 9405.10.80, HTSUS, which provides, in pertinent part, for: “Lamps and lighting fittings …: chandeliers and other electric ceiling or wall lighting fittings …: other.” As such, the 2012 column one, general rate of duty is 3.9% ad valorem. By application of GRI 3(c) and GRI 6, SKUs 3507040 and 3507045 are classified under subheading 9405.10.80, HTSUS, which provides, in pertinent part, for: “Lamps and lighting fittings …: chandeliers and other electric ceiling or wall lighting fittings …: other.” As such, the 2012 column one, general rate of duty is 3.9% ad valorem. You are instructed to ALLOW 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 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