CLA-2 CO:R:C:F 952253 ALS
Ms. Valerie Haack
ClearFreight
1201 Third Ave.
Suite 1890
Seattle, WA 98101
RE: Pacifiers Manufactured in China
Dear Ms. Haack:
This is reference to your inquiry concerning the tariff
classification of two types of pacifiers.
FACTS:
The articles under consideration are two types of baby
pacifiers on which a baby may suck or chew. One type of pacifier
has a soft rubber nipple and soft rubber handle while the other
type has a plastic handle and soft rubber nipple.
ISSUE:
Are the articles classifiable in subheading 3926.90.1500 or
subheading 4014.90.5000, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA)?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed by
the General Rules of Interpretation (GRI's) taken in order. GRI
1 provides that the classification is determined first in
accordance with the terms of the headings and any relative
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section and chapter notes. If GRI 1 fails to classify the goods
and if the heading and legal notes do not otherwise require, the
remaining GRI's are applied taken in order.
Based on the fact that one article is composed of both rubber
and plastic and the other article is composed entirely of rubber,
we considered the possible classification of these articles in both
chapter 39 and chapter 40.
The articles have been classified in subheading 4014.90.5000,
HTSUSA, the provision for hygienic or pharmaceutical articles
(including nursing nipples), of vulcanized rubber other than hard
rubber, with or without fittings of hard rubber; other; other. The
inquiry suggests classification in subheading 3926.90.1500, HTSUSA,
the provision for other articles of plastic and articles of other
materials of heading 3901 to 3914; other; nursing nipples and
pacifiers....
We first considered the pacifier which is composed entirely
of soft rubber. While the referenced subheading specifically
provides for nursing nipples and pacifiers, we noted that both the
governing heading and chapter in which the subheading is found
refer to plastic or articles thereof. Since the soft rubber
pacifier is composed entirely of soft rubber without any plastic
components, we concluded that the all rubber pacifier should not
be classified in that chapter. We have concluded that it would be
more appropriate to classify that article in the aforementioned
subheading in chapter 40.
We next considered the pacifier which is composed of a rubber
nipple with the remaining parts composed of plastic. In
considering the possible classification of this article we
considered GRI 3, which states in pertinent part:
When by application of Rule 2(b) [goods of more than one
material or substance] or for any other reason, goods are, prima
facie, classifiable under two or more headings, classification
shall be effected as follows:
(b) 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) [which requires that goods be classified,
if possible, under the more specific of the completing
provisions], shall be classified as if they consisted of the
material or component which gives them their essential
character, insofar as this criterion is applicable.
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The Explanatory Notes (EN) to the Harmonized System which
represents the considered views of the classification experts at
the international level, states as to GRI 3(b):
For the purposes of [GRI 3)b)], composite goods made up of
different components shall be taken to mean not only those in which
the components are attached to each other to form a practically
inseparable whole but also those with separable components,
provided these components are adapted to one another and are
mutually complementary and that together they form a whole which
would not normally be offered for sale in separate parts.
[C]lassification is made according to the component, or
components taken together, which gives the article is essential
character. The EN states that the essential character can 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 by the role of a constituent material
in relation to the use of the goods.
In determining the essential character of the article composed
of plastic and rubber parts applying these criteria, we concluded
that neither the rubber or plastic portion of the article give the
article its essential character. We believe that both elements are
essential for the article for perform its function. While the
nipple is the element on which the infant sucks or chews, it is
useless, and even dangerous, without the handle which permits the
pacifier to be partially inserted in the infants mouth while
preventing it from being swallowed. Accordingly, we have concluded
that this article cannot be classified pursuant to GRI 3(b).
When articles cannot be classified by reference to GRI 3(a)
or GRI 3(b), they must be classified, pursuant to GRI 3(c), under
the heading which occurs last in numerical order among those which
equally merit consideration in determining their classification.
Pursuant thereto, classification under the chapter 40 provision
would be appropriate.
HOLDING:
Baby pacifiers composed entirely of soft rubber or of a soft
rubber nipple and a plastic handle are classifiable in subheading
4014.90.5000, HTSUSA, which provides for hygienic or
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pharmaceutical articles (including nursing nipples) of vulcanized
rubber other than hard rubber...other, other. Articles so
classifiable are subject to a general rate of duty of 4.2 percent
ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc: AD NYSEAPORT
1cc: NIS J. Preston