HQ H012350

March 14, 2008

CLA-2 OT:RR:CTF:TCM H012350 KSH

CATEGORY: Classification

TARIFF NO.: 9405.10.8010

Port Director

U.S. Customs and Border Protection

10 Causeway Street - Room 603

Boston, MA 02222      

RE: Application for Further Review of Protest 0401-07-100086

Dear Port Director:\
\
This is in reply to your correspondence dated May 29, 2007, forwarding
the Application for Further Review of Protest (AFR) 0401-07-100086,
filed by

LG Sourcing, Inc. The protest is against Customs and Border Protection's
(CBP) classification and liquidation of one entry of dome light fixtures
under subheading 9405.10.6010 of the Harmonized Tariff Schedule of the
United States (HTSUS).

On December 11, 2005, protestant entered the merchandise subject to this
protest in subheading 9405.10.6010, 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: Of base metal: Other, Household." The merchandise was
liquidated on October 27, 2006, in subheading 9405.10.6010, HTSUS, as
entered. Protestant claims the merchandise is classified in subheading
9405.10.8010, 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: Other, Household."

On April 24, 2007, protestant filed a protest and application for
further review against the classification and liquidation of the
merchandise in subheading 9405.10.6010, HTSUS. The protest was timely
filed.

In support of protestant's application for further review, protestant
alleges that the classification is inconsistent with the Court of
International Trade's decision in [Home Depot, USA, Inc. v. United
States]{.underline}, 427 F. Supp. 2d 1278 (2006) *aff'd* 491 F.3d 1334
(2007). Further review is warranted pursuant to 19 CFR §§174.24(a) and
174.25.

FACTS:

The merchandise at issue is identified as Item numbers 112067 and
112109. Item 112067 is a 13" flush mount brushed nickel finish dome
light. Item 112109 is a 13" flush mount white finish dome light.

ISSUE:

Whether the dome light fixtures are classified in subheading
9405.10.6010, HTSUS, as a wall lighting fitting of base metal (other
than of brass) or subheading 9405.10.8010, HTSUS, as a wall lighting
fitting of material other than of base metal.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General
Rules of Interpretation (GRI). GRI 1 provides, in part, that
classification decisions are to be \"determined according to the terms
of the headings and any relative section or chapter notes.\" In the
event that goods cannot be classified solely on the basis of GRI 1, and
if the headings and legal notes do not otherwise require, the remaining
GRI may then be applied, in order.

The Harmonized Commodity Description and Coding System Explanatory Notes
(EN) constitute the official interpretation of the Harmonized System at
the international level (for the 4 digit headings and the 6 digit
subheadings) and facilitate classification under the HTSUSA by offering
guidance in understanding the scope of the headings and GRI. While
neither legally binding nor dispositive of classification issues, the EN
provide commentary on the scope of each heading of the HTSUSA and are
generally indicative of the proper interpretation of the headings. See
T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

There is no dispute that the merchandise at issue is classifiable at the
six-digit (international) level as a wall lighting fitting. The sole
issue presented for consideration is whether it is of base metal or of
glass.

In [Home Depot]{.underline}, *supra*, the Court of International Trade
determined the classification of 124 various lighting fixtures. Among
the various types of lighting fixtures at issue were thirteen styles of
dome lights which differed only in their metal finish. In determining
the classification of the lights, the court employed GRI 3(b) which
provides as follows:

> Mixtures, composite goods consisting of 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 ENs to GRI 3(b)(VIII) state, in part, that \"\[t\]he factor which
determines essential character will vary as between different kinds of
goods. It may, for example, be determined by the nature of the material
or component, its bulk, quantity, weight or value, or the role of a
constituent material in relation to the use of the goods.\"

In classifying the dome lights in subheading 9405.10.80, HTSUS, the
court determined that generally with regard to the dome lights, the
metal component comprised approximately one-third of the total visible
surface area; weighed approximately one-third of the entirety of the
fixture; contributed to the decorative appearance and structure; housed
the electrical components; and mounted the fixture to the ceiling while
the glass component comprised approximately two-thirds of the total
visible surface area; weighed approximately two-thirds of the entirety
of the fixture; reflected and refracted light; protected the lamp;
contributed to the decorative appearance and structure; and defined the
fixture from design and marketability standpoints. [Id]{.underline}. at
1303.

Like the dome lights at issue in [Home Depot]{.underline}, *supra*, the
metal components of the subject dome lights contribute to the decorative
appearance and structure, house the electrical components and mount the
fixture to the ceiling. The glass comprises a greater visible surface
area, reflects and refracts light, protects the lamp, contributes to the
decorative appearance and defines the fixture from design and
marketability standpoints. Based on the totality of these factors, the
dome lights are classified in subheading 9405.10.8010, HTSUS.

HOLDING:

> Protest number 0401-07-100086 is allowed. In accordance with GRI 3(b),
> the

dome lights are classified in heading 9405, HTSUS. They are provided for
in subheading 9405.10.8010, 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: Other, Household." The general, column one rate of duty
at the time of entry was 3.9% *ad valorem*.

In accordance with the Protest/Petition Processing Handbook, (CIS HB,
January 2002, pp 18 and 21), 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 in accordance with
the decision must be accomplished prior to mailing the decision. Sixty
days from the date of the decision Regulations and Rulings of the Office
of International Trade 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