Revocation of NY N020891; Tariff classification of an “Electronic Flashing Button”

HQ H281923 November 30 2018 CLA-2 OT:RR:CTF:CPMM H281923 RGR CATEGORY: Classification TARIFF NO.: 7117.90.7500 Barbara J. Hill Manager of System Operations The Diploma Mill Inc. 11585 E. 53rd Avenue, Unit D Denver, CO 80239 Re: Revocation of NY N020891; Tariff classification of an “Electronic Flashing Button” Dear Ms. Hill: This is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered New York (“NY”) Ruling Letter N020891, dated January 9, 2008, regarding the classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of an item referred to as an “Electronic Flashing Button” from China. The electronic flashing button was classified under subheading 8543.70.9650, HTSUSA (Annotated), as “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and apparatus: Other: Other: Other: Other.” We have reviewed NY N020891 and determined that the classification of the electronic flashing button in subheading 8543.70.9650, HTSUSA, was incorrect. Pursuant to 19 U.S.C. § 1625(c)(1), a notice was published in the Customs Bulletin, Volume 52, No. 40 on October 3, 2018, proposing to modify NY N020891, and any treatment accorded to substantially similar transactions. No comments were received in response to this notice. FACTS: In NY N020891, we described the merchandise as follows: The item concerned is referred to as an “Electronic Flashing Button”. This item is a circular piece of hard plastic with a pin or clip mounted on the back. Within the plastic housing there is an expression or saying such as “Happy Birthday”, “The Greatest”, “I made It”, etc. The button incorporates four rapidly flashing LED lights which draw attention to, and illuminate, the decorative expression. The item is battery-operated and has an on/off switch located on the back. The button can be worn on a lapel or shirt. It is a novelty item which is to be worn on festive occasions. The flashing button is intended for ages four years and up. ISSUE: Whether the electronic flashing button is classified in heading 7117, HTSUS, which provides for “imitation jewelry,” in heading 9505, HTSUS, which provides for “festive, carnival or other entertainment articles,” or in heading 8543, HTSUS, which provides for “electrical machines and apparatus.” LAW AND ANALYSIS: Classification under the HTSUS is governed by the General Rules of Interpretation (“GRI”). GRI 1 provides, in part, that “for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes….” In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order. The following provisions of the HTSUS are under consideration: 7117 Imitation jewelry * * * * 8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof * * * * 9505 Festive, carnival or other entertainment articles, including magic tricks, and practical joke articles; parts and articles thereof * * * * Note 9 to Chapter 71 states as follows: 9. For the purposes of heading 7113, the expression “articles of jewelry” means: (a) Any small objects of personal adornment (for examples, rings, bracelets, necklaces, brooches, earrings, watch chains, fobs, pendants, tie pins, cuff links, dress studs, religious or other medals and insignia); and (b) Articles of personal use of a kind normally carried in the pocket, in the handbag or on the person (for example, cigar or cigarette cases, snuff boxes, cachou or pill boxes, powder boxes, chain purses or prayer beads). These articles may be combined or set, for example, with natural or cultured pearls, precious or semiprecious stones, synthetic or reconstructed precious or semiprecious stones, tortoise shell, mother-of-pearl, ivory, natural or reconstituted amber, jet or coral. * * * * Note 11 to Chapter 71 states as follows: 11. For the purposes of heading 7117, the expression “imitation jewelry” means articles of jewelry within the meaning of paragraph (a) of note 9 above (but not including buttons or other articles of heading 9606, or dress combs, hair slides or the like, or hairpins, of heading 9615), not incorporating natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed) nor (except as plating or as minor constituents) precious metal or metal clad with precious metal. * * * * Note 1(p) to section XVI (chapters 84-85), states that: This section does not cover: * * * * (p) Articles of chapter 95. * * * * In interpreting the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The EN to 85.43 states, in relevant part: This heading covers all electrical appliances and apparatus, not falling in any other heading of this Chapter, nor covered more specifically by a heading of any other Chapter of the Nomenclature. The EN to 95.05 states, in relevant part: This heading covers :   (A)  Festive, carnival or other entertainment articles, which in view of their intended use are generally made of nondurable material. They include:     * * * (3) Articles of fancy dress, e.g., masks, false ears and noses, wigs, false beards and moustaches (not being articles of postiche  heading 67.04), and paper hats. However, the heading excludes fancy dress of textile materials, of Chapter 61 or 62. * * * * In NY N020891, CBP classified electronic flashing buttons under heading 8543, HTSUS, as electrical apparatus not covered more specifically by a heading of any other chapter of the HTSUS. However, pursuant to the EN to 85.43, if the merchandise is covered more specifically by a heading of any other chapter of the HTSUS, then it would not be classified in heading 8543, HTSUS. Heading 7117, HTSUS, provides for imitation jewelry. Note 11 to chapter 71 states that imitation jewelry means “articles of jewelry” within the meaning of note 9(a) to chapter 71, which do not consist of cultured pearls, precious/semiprecious stones or precious metal. Note 9(a) states that, for the purposes of heading 7113, HTSUS, “articles of jewelry” are small articles of adornment, such as bracelets, necklaces, brooches, earrings, etc. The electronic flashing buttons at issue are most akin to the brooches set forth in note 9(a) to chapter 71. The Merriam-Webster Online Dictionary defines a “brooch” as “an ornament that is held by a pin or clasp and is worn at or near the neck.” Brooch Definition, Merriam-Webster, https://www.merriam-webster.com/dictionary/brooch (last visited Apr. 19, 2018). It is also defined in the Jeweler's Dictionary, 3rd Ed. 1976, as: "[a] piece of jewelry to be worn pinned to clothing, as at the neck or shoulder, on the breast or hat, or in the hair." Turning to the instant merchandise, we note that the electronic flashing button, consisting of hard plastic with a pin or clip mounted on the back and worn on a lapel or shirt, is similar to a brooch, which is among the listed exemplars of articles of jewelry in note 9(a) to chapter 71. See, e.g., Russ Berrie & Co. v. United States, 381 F.3d 1334 (Fed. Circ. 2004) (finding that inexpensive lapel pins similar to the exemplars in note 9(a) of chapter 71, which contain Christmas themes, are classified in heading 7117, HTSUS, as imitation jewelry). In addition, the electronic flashing button does not include pearls, precious stones or precious metal. We further note that in past rulings, we have classified novelty badges/buttons with light-up features or that depict recognized festive motifs under heading 7117, HTSUS. See, e.g., Headquarters Ruling Letter (“HQ”) 087960, dated January 4, 1991 (classifying a Christmas corsage pin in heading 7117, HTSUS, as imitation jewelry); HQ 087109, dated August 16, 1990 (classifying a dancing Halloween skeleton pin in heading 7117, HTSUS, as imitation jewelry); HQ 086630, dated July 3, 1990 (classifying lite-up buttons with Christmas and Halloween themes in heading 7117, HTSUS, as imitation jewelry); NY N121916, dated September 21, 2010 (classifying a St. Patrick’s Day LED flashing button pin in heading 7117, HTSUS, as imitation jewelry); and NY L82750, dated March 8, 2005 (classifying a light up flashing badge in the shape of a pumpkin, skull head, ghost or bat, attached to a card that states “Halloween Flashing Pin,” in heading 7117, HTSUS, as imitation jewelry). Here, the subject electronic flashing button features a pin or clip upon which the button is mounted, and is of a type of pin or clip that is routinely affixed to jewelry pins or brooches that are worn on a lapel or shirt. Therefore, the electronic flashing buttons are prima facie classifiable in heading 7117, HTSUS, as imitation jewelry. As stated in the EN to 85.43, heading 8543, HTSUS, only covers electrical apparatus not covered more specifically by a heading of any other chapter. As the electronic flashing buttons are more specifically provided for in heading 7117, HTSUS, we find that the buttons in NY N020891 were improperly classified in heading 8543, HTSUS. While the subject merchandise is classifiable in heading 7117, HTSUS, heading 9505, HTSUS, must also be considered. In Midwest of Cannon Falls, Inc. v. United States (Midwest), 122 F.3d 1423, 1429 (Fed. Cir. 1997), the Court of Appeals for the Federal Circuit (“CAFC”) held that classification of merchandise as “festive articles” under chapter 95 requires that the article satisfy two criteria: (1) it must be closely associated with a festive occasion, and (2) it must be used or displayed principally during that festive occasion. Additionally, the item must be “ ‘closely associated with a festive occasion’ ” to the degree that “ ‘the physical appearance of an article is so intrinsically linked to a festive occasion that its use during other time periods would be aberrant.’ ” Park B. Smith, Ltd. v. United States, 347 F.3d 922, 927 (Fed. Cir. 2003) (quoting Park B. Smith, Ltd. v. United States, 25 CIT 506, 509 (2001)). Hence, the courts have established a 2-prong test to determine whether an article is “festive,” and have not said that heading 9505, HTSUS is a “principal use” provision. See HQ H258442, dated August 18, 2016. Under the 2-prong test set forth in Midwest and Park B. Smith, Ltd., an article’s physical appearance and the court’s examination of such is part of the determination of whether an article is prima facie classifiable as a “festive article.” “Festive occasions” are not limited to recognized holidays but can also include “special occasions and events such as weddings, anniversaries, and birthdays.” Wilton Industries, Inc. v. United States, 31 CIT 863, 890 (2007). Accordingly, merchandise classifiable under the 2-prong test in heading 9505, HTSUS, includes articles associated with a birthday celebration. As the electronic flashing buttons printed with the expression “Happy Birthday” are classifiable in heading 7117, HTSUS, and heading 9505, HTSUS, we must turn to GRI 3(a), which states, in pertinent part, that “when…goods are, prima facie, classifiable under two or more headings,…[t]he heading which provides the most specific description shall be preferred to headings providing a more general description.” The EN to GRI 3(a) further states that “[a] description by name is more specific than a description by class,” and that “if the goods answer to a description which more clearly identifies them, that description is more specific than one where identification is less complete.” The CAFC explained that “ ‘[u]nder this so-called rule of relative specificity, we look to the provision with requirements that are more difficult to satisfy and that describe the article with the greatest degree of accuracy and certainty.’ ” Russ Berrie & Co., 381 F.3d at 1337 (citing Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998)). Accordingly, a comparison of the terms in heading 7117 and heading 9505 is in order. In Russ Berrie & Co., the CAFC compared heading 7117 and heading 9505 for purposes of GRI 3(a). There, the CAFC explained that the “imitation jewelry” heading is more specific than the “festive articles” heading because it covers a narrower set of items. “Imitation jewelry” is limited to small items of personal adornment that do not contain an appreciable amount of precious or semiprecious stones or metal.…“Festive articles,” however, need only to be closely associated with and used or displayed during a festive occasion.…Because heading 9505 covers a far broader range of items than heading 7117, the latter is more specific than the former. It is also more specific because it describes the item by name (“imitation jewelry”) rather than by class (“festive articles”). It therefore follows that the imported merchandise is classifiable under heading 7117 rather than under heading 9505. Russ Berrie & Co., 381 F.3d at 1338. Applying GRI 3(a) and the reasoning of the CAFC in Russ Berrie & Co., even if the electronic flashing buttons were described by the terms of heading 9505, HTSUS, they are more specifically described in heading 7117, HTSUS, as “imitation jewelry.” Therefore, the flashing buttons are properly classified in heading 7117, HTSUS. HOLDING: By application of GRIs 1 and 3(a), the electronic flashing buttons are classified in heading 7117, HTSUS, specifically in subheading 7117.90.7500, HTSUSA (Annotated), which provides for “Imitation jewelry: Other: Valued over 20 cents per dozen pieces or parts: Other: Of plastics.” The 2018 column one, general rate of duty is Free. EFFECT ON OTHER RULINGS: NY N020891, dated January 9, 2008, is revoked. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division