HQ 962293

December 9, 1999

CLA‑2 RR:CR:GC 962293 HMC

CATEGORY: Classification

TARIFF NO.: 9405.10.60; 9405.10.80

Port Director

U.S. Customs Service

2nd & Chesnut Sts.

Philadelphia, PA 19106

RE: Protest 1101-98-100124; Lighting Fixtures; Chandeliers and Other
Electric Ceiling or Wall Lighting Fittings, Of Base Metal

Dear Port Director:

This is in response to protest 1101-98-100124, 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 a
submission from counsel for the protestant, dated September 4, 1998, and
September 1, 1999. The two 1997 entries under protest were liquidated on
May 22, 1998, and this protest timely filed on August 13, 1998.

FACTS:

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 counsel for the
protestant; treatment of unlisted items should be consistent with this
ruling):

> [Item \#]{.underline} [Description]{.underline}
>
> 3309-02 5-light hexagon-shaped chandelier with a polished brass finish
> and a clear beveled glass. The chandelier contains a metal framework
> that supports and shapes the glass "shade." Each side resembles a
> triangle that extends diagonally from the top center metal base. The
> panes are wider at the bottom, hence the triangular shape. A
> semi-rectangular glass pane with a rounded bottom side extends
> straight down from the bottom of the triangular pane.
>
> 5116-15 This is a hexagonal chandelier with two identical sides and a
> white finish. This fixture is like model 3309-02, but it has a bottom
> part that mirrors the top. The metal framework is shaped like a
> triangle, wider where both sides meet. These are joined together at
> the center with a metal strip that serves as the "ecuator" for the
> framework and glass panes.
>
> 5117-02 Except for its larger size and polished brass finish, this
> chandelier looks like model 5116-15.
>
> 6173-02 A hexagonal polished solid brass chandelier with two identical
> sides and an additional middle section. This chandelier has a metal
> framework with a shape on the top and bottom sides similar to that of
> models 5116-15 and 5117-02. The middle section is made with a
> rectangular framework and clear glass panes that separates the bottom
> side from the top side.
>
> 6186-02 Except for its smaller size, this model looks just like model
> 6173-02.
>
> 7661-15 An octagon-shaped lamp with a metal base that fits directly
> against the ceiling. The metal framework supports and shapes the glass
> "shade," into individual eight rectangular glass panes that protrude
> vertically from the ceiling base. At the bottom of the rectangular
> panes, 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) were provided for two items, as
follows (the values 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             [glass                      [other parts
  \#]{.underline}   weight/value]{.underline}   weight/value]{.underline}

  3309-02           7 lbs. / \$8.19             6 lbs. / \$7.33

  5116-15           4 lbs. / \$5.58             2 lbs. / \$5.10

  5117-02           9.6 lbs. / \$8.77           2.4 lbs. / \$5.10

  6173-02           14.8 lbs. / \$11.53         3.1 lbs. / \$8.45

  6186-02           7.9 lbs. / \$9.25           2.7 lbs. / \$5.11

  7661-15           Not Provided                Not Provided
  ----------------- --------------------------- -------------------------------

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
under subheadings 9405.10.40, HTSUS, if made of brass, and 9405.10.60,
HTSUS, if other than brass. 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 argues that the articles are composite
goods and that the glass is the component material that gives the lamps
and chandeliers their essential character. Thus, the protestant contends
that HQ 957363, dated March 15, 1995, which involved similar goods and
upon which the port relied, should not apply. The protestant cites HQ
086166, dated April 9, 1990, in support of the argument that for the
articles under consideration, the glass component that attracts the
consumer is an important factor in determining essential character.

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.\"

The 1997 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. 89‑80, published in the [Federal
Register]{.underline} August 23, 1989 (54 FR 35127, 35128).

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.

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.

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
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).

Counsel states 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 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 rectangular or triangular panes of glass that
forms the "shade." The combination of the clear faceted glass and the
metal framework results in a striking appearance. Also, the light
sockets are held by a metal base, which is clearly visible through the
glass. Thus, the design features of the lamps is such that it
accentuates the lamps' metal finishes. 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. 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 panes. 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 9405.10.40,
HTSUS, if made of brass, or in subheading 9405.10.60, HTSUS, if made of
a metal other than brass.

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 in subheading 9405.10.40, HTSUS, if of brass or in
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 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