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HQ 962799




December 15, 1999

CLA2 RR:CR:GC 962799 HMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.10.60

Chief, Residual Liquidation and Protest Branch U.S. Customs Service
Hemisphere Center
Routes 1 & 9, Rm. 200
Newark, NJ 07114

RE: Protest 1001-99-100640; Lighting Fixtures; Chandeliers and Other Electric Ceiling or Wall Lighting Fittings, Of Base Metal

Dear Chief:

This is in response to protest 1001-99-100640, which pertains to the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of electric lighting fittings of metal and glass. The 1998 entry under protest was liquidated on November 11, 1998, and this protest timely filed on February 4, 1999.

FACTS:

The merchandise in the protested entry consists of three lighting fixtures, specifically described as follows:

Style # Description

F 1596 Hanging chandelier, 30 inches in height and diameter. The fitting is made of metal with six lead crystal shades. The shades are shaped like a tall vase, wider at the top. The metal (with a golden brass finish) provides a candelabra look to the chandelier and supports the shades and light sockets. A component percentage breakdown shows that the glass component is 51% and the metal is 39%. The glass is valued at $28.63 and the metal at $22.10.

SF 116 Semi-flush ceiling light, 13 inches in height and diameter, which attaches directly to the ceiling. Literature refers to the lamp as a matte glass/polished brass medallion pan. The “shade” resembles a large bowl made with matte glass and metal trimming (brass finish) around the top edge. A metal rod extends from a metal base attached to the ceiling to the center of the lamp. Also, four metal wires protrude from the metal base to the shade’s top edge. These metal rods hold the shade. A component percentage breakdown shows that the glass component is 77% and the metal is 17%. The glass is valued at $13.87 and the metal at $3.00.

VS 3003 36 inch beveled mirror vanity strip with three halogen lights. The three shades resemble an short bowl. The shades are supported at the bottom by a metal base that is itself attached to the metal strip. A component percentage breakdown shows that the glass component of the vanity strip is 46% and the metal is 45%. The glass is valued at $20.30 and the metal at $19.56.

The entries were liquidated under a provision 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 than brass, under subheading 9405.10.60, HTSUS. The protestant argues that the articles should be classified, based on the glass, under subheading 9405.10.80, HTSUS, because that is the component material that gives the lamps their essential character. The protestant cites NY 806691, to argue that the subject lamps are like the “Tiffany style” lamps of that case.

ISSUE:

Whether the lighting fixtures are classifiable as of base metal or other than base metal.

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, provides, in pertinent part, that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes. GRI 2(b) provides, in pertinent part, that "[a]ny reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance [and] [t]he classification of goods consisting of more than one material or substance shall be according to the principles of [GRI] 3." Pursuant to GRI 3(b), "... goods [which] are, prima facie, classifiable under two or more headings [and are] [m]ixtures, composite goods consisting of different materials or made up of different components, [or] goods put up in sets for retail sale, which cannot be classified by reference to [GRI] 3(a) [i.e., by the heading which provides the most specific description], shall be classified as if they consisted of the material or component which gives them their essential character ...." GRI 6 provides, in pertinent part, that "... the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable."

There is no disagreement that the articles under consideration are lamps and lighting fittings described by heading 9405. However, we must determine which material or component gives the articles their essential character. The 1998 HTSUS subheadings under consideration are as follows:

9405 Lamps and lighting fittings including searchlights and spotlights 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:
9405.10.40 Of brass
9405.10.60 Other
9405.10.80 Other

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the ENs should always be consulted. See T.D. 8980, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).

General EN (VIII) to GRI 3(b) states that the factor which determines essential character will vary as between different kinds of goods. The EN lists as factors to help determine the essential character of such goods the nature of the materials or components, their bulk, quantity, weight or value, and the role of the constituent materials or components in relation to the use of the goods.

Several court decisions have looked primarily to the role of the constituent materials or components in relation to the use of the goods to determine essential character of GRI 3(b). See, Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F.3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also, Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), affirmed CAFC No. 98-1227 (March 16, 1999). We note that the CAFC in Better Home Plastics emphasized that all of the relevant factors should be considered in an essential character analysis. That is, the CAFC stated (119 F.3d at 971):

The [CIT] carefully considered all of the facts, and, after a reasoned balancing of all the facts, concluded that Better Home Plastics offered sufficient evidence and argument to overcome the presumption of correctness. The court concluded that the indispensable function of keeping water inside the shower along with the protective, privacy and decorative functions of the plastic liner, and the relatively low cost of the sets all combined to support the decision that the plastic liner provided the essential character of the sets. ... The court’s decision did not rely solely, or even hinge, on the indispensability of the water-retaining function. The decision was substantially based on the importance of the other functions as well as the cost of the entire set.

Based on the foregoing, we have taken the position that, in an essential character analysis for purposes of GRI 3(b), the role of the constituent materials or components in relation to the use of the goods is generally of primary importance, but the other factors listed in EN Rule 3(b)(VIII) should also be considered, as applicable (see, e.g., HQ 961095 dated July 20, 1998; HQ 962047 dated May 17, 1999). Specifically, with regard to essential character analyses of lighting fixtures of heading 9405, we have looked primarily to the roles of the constituent materials or components and to the component or material which is indispensable to the use of the good. See, e.g., HQ 957363 dated March 15, 1995, in which we held that the metal component provided the essential character of the lighting fixtures considered therein because "[t]he metal components are indispensable to the structure of the ... fittings as the metal forms the structure ... [and] hold[s] the lamp sockets and electric circuitry in place" (HQ 961837, dated July 19, 1999, HQ 960861, dated July 19, 1999, and HQ 951126, dated May 12, 1992, and the rulings cited therein reasoned similarly to determine that the metal component of lighting fixtures provided their essential character).

Protestant claims that the holding of HQ 957363 is overly broad and that it nullifies the subheading 9405.10.80, HTSUS. We disagree. In classifying the lighting fixtures in that case we determined that the lighting fittings were similar to the electrical lighting fixtures of HQ 951126, in which we found that the role of the glass did not predominate over the role of the metal because the metal was indispensable. It was Customs view that the determinative factor in finding the essential character of the lighting fixtures in that case was the role of the constituent materials in relation to the use of the goods. This decision is not a nullification of classification of lighting fixture under any other subheading.

We note rulings that have looked to the effect of the component materials on the overall appearance of a lighting fixtures (see HQ 959270 dated January 24, 1997, and NY 806691, dated March 7, 1995). In HQ 959270, the essential character was determined to be provided by the glass and ceramic components on the basis of the special appearance (with a "peach blossom" motif) of the lighting fixture, which was found to be provided by those components (i.e., "[a]n appropriate description of this lamp is a glass and ceramic lamp with metal trim"). NY 806691, cited by protestant, also involved a lighting fixture with a special appearance, a "Tiffany-style" fixture with decorative glass panels. Furthermore, HQ 086166, dated April 9, 1990, held that curio and trinket boxes, both largely of glass, were described by heading 7013, HTSUS, as household articles of glass because the glass constituted the most distinctive feature of the box. It was the component that attracted the consumer. These cases demonstrate that Customs has considered appearance as a factor in essential character determinations.

It is our view that, as in the lighting fixtures of HQ 957363, the metal in the subject lighting fixtures predominates over the glass. A metal framework delineates the lamps’ contours and supports the shades. The combination of the glass and the metal framework results in a striking appearance. Thus, the design features of the lamps is such that it accentuates the lamps’ metal finishes. Although the glass may have some effect on the light given by the fixtures, they do not have the special, decorative appearance of a "peach blossom" or "Tiffany-style" lamp. The metal components we find contribute more to the appearance of the articles (because of the framework) and, as the fixtures of HQ 957363, the metal components provide the basic structure, holding in place the lamp sockets and electric circuitry, as well as providing the form of the article and holding the glass shades. Based on all relevant factors, including particularly the functions of the components, we conclude that the essential character of these articles is provided by the base metal. Therefore, the merchandise is classifiable under subheading 9405.10.60, HTSUS, if made of a metal other than brass. See also HQ 962431 and 962293, dated December 9, 1999, for a similar conclusion.

HOLDING:

The essential character of the lighting fixtures is provided by the base metal component and they are classified as lamps and lighting fittings of base metal under subheading 9405.10.60, HTSUS, if of base metal other than brass.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director,

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