HQ 961837

July 19, 1999

CLA‑2 RR:CR:GC 961837 PH

CATEGORY: Classification

TARIFF NO.: 9405.10.60; 9405.10.80

Port Director

U.S. Customs Service

200 East Bay Street

Charleston, SC 29401

RE: Protest 1601-97-100061; Lighting fixtures

Dear Port Director:

This is in response to protest 1601-97-100061, which pertains to the
tariff classification, under the Harmonized Tariff Schedule of the
United States (HTSUS), of electric lighting fittings of metal and glass.
In the preparation of this ruling, consideration was given to the
supplemental submissions of July 31, 1997, and February 25 and June 21,
1999, as well as arguments made by counsel for the protestant in a
meeting with representatives of this office on June 21, 1999. We regret
the delay.

FACTS:

Three entries, each in 1996, are included in the protest. The
merchandise in the protested entries consists of lighting fixtures,
specifically described as follows (there may be other items invoiced in
the entries - these are the articles described by the protestant;
treatment of unlisted items should be consistent with this ruling):

> [Item \# (colors]{.underline} [Description]{.underline}

[omitted)]{.underline}

> 1220 6\" globe or \"acorn\", white glass (small metal base to fit
> against the ceiling, with white globe-like glass shade or cover, pull
> switch on side of the base on some models, not on others).
>
> 1221 8\" globe or \"acorn\" white glass ceiling fixture (similar to
> 1220 except for size).
>
> CF46 13\" semi flush mount leaf clear glass (small circular metal base
> to fit against the ceiling, metal structure suspended therefrom
> holding a large, heavy glass shade embossed with, and shaped like,
> leaves).
>
> CF204 10\" 3-head spot flush mount (flat circular metal base to fit
> against the ceiling three short metal cylinders drop down from the
> base onto which are attached metal desk-lamp light fixtures into which
> are placed light bulbs).
>
> CF231 13\" dome flush mount ceiling fixture, swirl glass (similar to
> CF 275, below, except for size).
>
> CF232 15\" dome flush mount ceiling fixture, swirl glass (similar to
> CF275, below, except for size).
>
> CF275 11\" dome flush mount ceiling fixture, swirl glass (circular
> metal base to fit against the ceiling, with frosted or clear formed
> half-globe glass shade and metal holder (to hold shade to the metal
> base)).
>
> CF301 8\" mushroom flush mount ceiling fixture (similar to CF302,
> below, except for size).
>
> CF302 10\" mushroom flush mount ceiling fixture (circular metal base
> to fit against the ceiling, with inverted dome-like shade (similar in
> shape to a mushroom) facing the floor).
>
> CF304 9\" drum flush mount ceiling fixture, clear/white glass
> (circular metal base to fit against the ceiling, with a \"drum\"
> shaped (large cylinder, with formed surface facing the floor)).
>
> F172 9\" 3-light bevel clear glass (similar to F173, below, except for
> size).
>
> F173 11\" 4-light octagon (octagon-shaped metal base to fit against
> the ceiling with metal framework into which crystal-like rectangular
> panes form the sides of the fixture and triangular panes descend
> inward and downward to the center of the fixture where a metal
> cylinder from the base of the article holds it together ).

The percentages of component materials by weight and cost or value,
respectively (weight/cost or value), and a comparison of the glass
versus the metal surface area, where available, for the items are as
follows (the percentages may vary slightly with the different
permutations of the items (*e.g.*, polished brass, painted black,
white), but they are considered to be representative for each item):

[Item \#]{.underline} [Brass]{.underline} [Electric]{.underline} [Glass
or]{.underline} [Steel]{.underline} [Glass/metal %]{.underline}

[parts]{.underline} [plastic]{.underline} [surface area]{.underline}

1220 \_ 17/6.87 64/40 19/53.13 79/21

1221 \_ 14/5.72 69/48.57 17/45.71 87/13

CF46 \_ 2/5.1 79/58.49 19/36.4 \_

CF204 \_ 14/11.11 10/.74 76/88.15 \_

CF231 \_ 10/5.87 64/43.62 26/50.51 45/55

CF232 \_ 7/5.08 67/47.46 26/47.46 47/53

CF275 \_ 6/3.91 68/44.58 26/51.51 45/55

CF301 \_ 15/6 51/42 34/52 69/31

CF302 \_ 8/7.7 68/44.3 24/48 76/24

CF304 \_ 12/8.65 66/38.72 22/52.63 72/28

F172 10/21.58 3/6.84 68/37.23 19/34.35 64/36

F173 10/20.56 3/6.54 68/39.41 19/33.49 67/33

The entries were liquidated December 20 and 27, 1996, and January 3,
1997, with classification of the merchandise as chandeliers and other
electric ceiling or wall lighting fittings, excluding those of a kind
used for lightning public open spaces or thoroughfares, of base metal
other than brass, in subheading 9405.10.60, HTSUS. On April 9, 1997,
counsel for the importer filed this protest.

With one exception, the protestant contends that the articles should be
classified as chandeliers and other electric ceiling or wall lighting
fittings, excluding those of a kind used for lighting public open spaces
or thoroughfares, of other than base metal, in subheading 9405.10.80,
HTSUS. The protestant concedes that item #'s CF204 is correctly
classified as liquidated (see above).

The protestant contends that the articles are composite goods composed
of glass and metal components and, pursuant to GRI 2(b) and 3, they must
be classified according to the component material that gives them their
essential character. The protestant cites Harmonized Commodity
Description And Coding System Explanatory Note (EN) GRI 3(b)(VIII) in
this regard, and argues that the weight and surface area of the glass
components versus the base metal components support the glass components
as providing the essential character of the articles. The protestant
argues that \"\... the emphasis placed upon the glass components in the
items' design and marketing, provide persuasive support for this
conclusion.\" The protestant contends that the position Customs has
taken in this regard (that the metal components are indispensable
because they form the structure of the fixture to allow it to perform
its basic function of providing light and they hold the lamp sockets and
electric circuitry in place) \"render\[s\] nugatory\" the subheadings
for lighting fixtures of other than base metal. The protestant also
contends that the Court of Appeals for the Federal Circuit (CAFC)
decision in the leading case of *Better Home Plastics Corp. v. United
States*, 119 F.3d 969 (Fed. Cir. 1997), makes clear that other factors
than the function of the components must be considered (*i.e.*, quoting
from *Better Homes*, 119 F.3d at 971, \"the court's decision did not
rely solely, or even hinge, on the indispensability of the water
retaining function \[and\] \[t\]he decision was substantially based on
the importance of the other functions as well as the cost of the entire
set\").

The protestant argues that the essential character of different kinds of
articles should be determined by different criteria, contending that
although \"\[l\]ooking at the functional role of the constituent
materials in sausage casings \[see *Vista International Packaging Co. v.
United States*, 19 CIT 868, 890 F. Supp. 1095 (1995)\], or at the
indispensable function of a plastic shower curtain that is part of a
cheap set to keep water in the bathtub, is a logical way to make a
difficult essential character determination *as to those products*\[,\]
\[i\]t is not however, the basis for engaging in such an analysis when
other considerations are present, such as the lack of any one
indispensable function performed by the metal or glass components, or
the significance of the components in the appearance and perception of
the article.\" The protestant cites two rulings (New York Ruling Letter
(NY) 806691 (undated, responding to a February 8, 1995, letter) and HQ
959270 dated January 24, 1997, in support of the argument that for the
articles under consideration, the component which gives the outward
appearance is an important factor in determining essential character.
The protestant provides three affidavits, by an official of a lighting
company, a dealer in antiques, including lighting accessories, and an
interior decorator, in support of its contention that \"\[t\]he visual
impact of the glass simply renders the glass components \[of the
articles under consideration\] the most distinguishing feature of the
light fixtures.\" Related to this argument, the protestant contends that
it is the glass component which gives the commercial appeal of the
articles and, in several cases, determines the commercial description of
the articles. Each of the affiants concludes that the glass components
distinguish the articles and have the greatest visual impact on
consumers.

ISSUE:

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

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed (within 90 days
after but not before the notice of liquidation (19 U.S.C. 1514(c)(3)(A))
and the matter protested is protestable (see 19 U.S.C. 1514(a)(2) and
(5)).

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.\"

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. 89‑80, published in the [Federal
Register]{.underline} August 23, 1989 (54 FR 35127, 35128).

The 1996 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

There is no disagreement that the articles under consideration are lamps
and lighting fittings classified in heading 9405. The disagreement is
over the material or component of the articles which gives them their
essential character. That is, pursuant to GRI 2(b), made applicable by
GRI 6 to the subheadings of heading 9405 at the same level, the
reference in the subheadings of heading 9405 to lighting fixtures of
base metal or other than of base metal is taken to include a reference
to goods consisting wholly or partly of such materials or substances and
classification is required to be according to the principles of GRI 3.
Under GRI 3 (again, made applicable to the subheadings of heading 9405
by GRI 6), the articles are, *prima facie*, classifiable under two or
more subheadings, and they are not classifiable pursuant to GRI 3(a)
(according to the most specific description) because the competing
subheadings each refer to part only of the materials or substances so
that the subheadings are to be regarded as equally specific. Therefore,
pursuant to GRI 3(b), the articles \"\... shall be classified as if they
consisted of the material or component which gives them their essential
character, insofar as this criterion is applicable.\"

EN Rule 3(b)(VIII) 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. Recently,
there have been several Court decisions on \"essential character\" for
purposes of GRI 3(b). These cases have looked primarily to the role of
the constituent materials or components in relation to the use of the
goods to determine essential character. 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, as pointed out
by the protestant's counsel, 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 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).

As the protestant notes, we have also 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 (referred to
above)). 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 also involved a lighting fixture with a special
appearance, a \"Tiffany-style\" fixture with decorative glass panels. We
have considered the affidavits provided by the protestant in our
consideration of this factor.

The globe or \"acorn\" fixtures (item #'s 1220 and 1221) appear to be
relatively inexpensive fixtures (see *Better Home Plastics*, *supra*).
The metal components of the articles provide the structure, holding in
place the lamp sockets and electric circuitry, while the glass
components are basically used to protect the light bulb(s). The weight
of the glass components of each is greater than that of the metal
components, but the value of the metal components is greater than that
of the glass components in item #1220 and almost as great as that of the
glass components in item #1221 (*i.e.*, these comparisons are not
conclusive). Although the surface area of the glass is substantially
greater than that of the metal, based on the contribution of the
components to the indispensable function of the article, as well as all
other relevant factors (see above), including the relatively inexpensive
nature of these articles, we conclude that the essential character of
these articles is provided by the base metal. Because there is no brass
content in the items, they are classified in subheading 9405.10.60,
HTSUS.

The dome, mushroom, and drum fixtures (item #'s CF231, CF232, CF275,
CF301, CF302, and CF304) are various ceiling fixtures in which the metal
base is attached to the ceiling and a glass shade of a particular shape
is attached to the base, with the descriptive name based on the shape of
the glass shade or cover, according to the affidavits provided by the
protestant. These items appear to be utilitarian, relatively inexpensive
fixtures, without the special, decorative appearance of a \"peach
blossom\" or \"Tiffany-style\" lamp (see above). Although the weight of
the non-base metal components is greater than that of the base metal
components, the cost or value of the base metal components is greater
than that of the non-base metal components. The surface area of the
metal components is greater than that of the glass components in the
first three items and the reverse is true of the last three items.
Although we recognize that the glass shades for these items may provide
the shape which gives them their names, it is the metal components which
provide the structure, holding in place the lamp sockets and electric
circuitry, while the glass components are basically used to protect the
light bulb(s). Based on all relevant factors (see above), including
particularly the functions of the components and the relatively
inexpensive nature of these articles, we conclude that the essential
character of these articles is provided by the base metal. Because there
is no brass content in the items, they are classified in subheading
9405.10.60, HTSUS.

The octagonally-shaped fixtures (item #'s F172 and F173) are ceiling
fixtures in which the octagonally-shaped metal base is attached to the
ceiling and a glass shade is made up of metal framework in which
rectangular or triangular panes of glass, with faceted edges, are
placed. The combination of faceted glass and metal framework results in
a striking appearance, and these articles appear to be relatively (to
the above-described articles) expensive. Although the faceted edges of
the glass panes 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 (see above). The metal components
contribute more to the appearance of the articles than in the preceding
items (because of the framework) and, as in the other items, 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 panes. Although the weight and the surface
area of the non-base metal components are greater than those of the base
metal components, the cost or value of the base metal components is
greater than that of the non-base metal components. Based on all
relevant factors (see above), including particularly the functions of
the components, we conclude that the essential character of these
articles is provided by the base metal. Because the weight and cost or
value of the steel components are substantially greater than those of
the brass components, these articles are classified in subheading
9405.10.60, HTSUS.

Of the remaining fixtures, the protestant concedes that the liquidated
classification of item CF204, a 3-head flush mount fixture which has
only insignificant non-base metal components, is correct (*i.e.*, in
subheading 9405.10.60, HTSUS). Item CF46 is a decorative ceiling fixture
with a small metal base for attachment to the ceiling and a heavy glass
shade. The shade is of very heavy glass, with an \"embossed-like\" leaf
motif. Because of the nature of the glass, the base would ordinarily not
be visible, nor would the structure of the fixture \"inside\" or above
the shade, so that only the metal holder which holds the shade in place
is visible. The weight of the glass component is substantially greater
than that of the base metal components (more than 4 times), and the cost
or value of the glass component is also substantially greater than that
of the base metal components. Based on all relevant factors (see above),
we conclude that, as with the \"peach blossom\" or \"Tiffany-style\"
lamp (see above), the essential character of this article is provided by
the glass. It is classified in subheading 9405.10.80, HTSUS.

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 other than brass, in subheading 9405.10.60, HTSUS,
[except]{.underline} for Item \# CF46 in which the glass provides the
essential character and the item is classified as lamps and light
fittings of other than base metal, in subheading 9405.10.80, HTSUS.

**The protest should be ALLOWED in part (as to item \# CF46, which is to
be classified as above) and DENIED in part (as to the remaining items).
In accordance with Section 3A(11)(b) of Customs Directive 099 3550‑065,
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,

Commercial Rulings Division