CLA-2 OT:RR:CTF:TCM H238475 TNA
Donna L. Shira, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C.
75 Broad Street
New York, New York 10004
RE: Tariff classification of a Children’s Pacifier and Pacifier Clip; Revocation of NY F83431 and NY H87109 by operation of law noted
Dear Ms. Shira:
This is in response to your request on behalf of your client, Sassy, submitted on January 4, 2013, to U.S. Customs and Border Protection (“CBP”), National Commodity Specialist Division (“NCSD”), for a binding ruling on the tariff classification of a children’s pacifier and pacifier clip under the Harmonized Tariff Schedule of the United States (HTSUS). Your ruling request was forwarded to this office for a response.
FACTS:
The subject merchandise consists of Style Number 61289, which contains a baby’s pacifier and a pacifier clip in a single package. The pacifier is made of green and clear plastic. The pacifier clip is stuffed, plush, and in the shape of a sleeping cow’s head. A small plastic and metal clip is attached to the back of the head, and a small ribbon is attached to the bottom of the head. The ribbon contains a hook and eye self-closure patch that allows the clip to be fastened to the pacifier.
The pacifier and clip are packaged and sold together on a cardboard header card. The pacifier is enclosed in a plastic blister pack for safety and sanitary reasons. The clip and pacifier are intended to be used together. A sample was received and examined by this office.
ISSUE:
Whether a children’s pacifier and pacifier clip are classified as a toy of heading 9503, HTSUS, or as an other plastic article of heading 3926, HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule 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 HTSUS provisions under consideration in this case are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof
Note 2 to Chapter 39, HTSUS, provides, in pertinent part, as follows:
This chapter does not cover: …
(y) Articles of chapter 95 (for example, toys, games, sports equipment)
Note 1 to Chapter 95, HTSUS, provides, in pertinent part, as follows:
This chapter does not cover: …
(v) Tableware, kitchenware, toilet articles, carpets and other textile
floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material).
Note 4 to Chapter 95, HTSUS, provides, in pertinent part, as follows:
Subject to the provisions of Note 1 above, heading 9503 applies, inter alia, to articles of this heading combined with one or more items, which cannot be considered as sets under the terms of General Interpretative Rule 3(b), and which, if presented separately, would be classified in other headings, provided the articles are put up together for retail sale and the combinations have the essential character of toys.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The EN to heading 3926, HTSUS, states, in pertinent part:
This heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14.
They include: …
(11) Pacifiers (or “baby’s dummies”); ice-bags; douche bags, enema
bags, and fittings therefor; invalid and similar nursing cushions; pessaries; sheath contraceptives (prophylactics); bulbs for syringes.
The EN to heading 9503, HTSUS, states, in pertinent part, the following:
This heading covers :
…
(D) Other toys.
This group covers toys intended essentially for the amusement of persons (children or adults)… This group includes:
…
(i) Toys representing animals or non-human creatures even if possessing predominantly human physical characteristics (e.g., angels, robots, devils, monsters), including those for use in marionette shows.
You argue that the clip and pacifier, which are put up for sale and intended to be used together, constitute a set within the meaning of GRI 3(b) and should be classified according to their essential character. You argue that the clip imparts the essential character, and that as a result, the merchandise should be classified as a toy of heading 9503, HTSUS. In support of this argument, you point to the packaging, which indicates that both items are sold together as a “Pacifier Clip.” You also note that consumers who purchase this merchandise do so for the design and soft, plush nature of the clip rather than for the pacifier.
In response, we note that, as imported, the subject merchandise consists of two separate items that are classified in different headings. The plastic pacifier is described by the terms of heading 3926, HTSUS, and the clip could be described by the terms of either heading 6307, HTSUS, as a made up article, or as a toy of heading 9503, HTSUS. As such, the subject merchandise cannot be classified under GRI 1.
GRI 3(b) states that:
When, by application of Rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows:
…
Mixtures, composite goods consisting or 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.
For purposes of GRI 3(b), EN IX to GRI 3(b) explains, in relevant part, that:
For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those 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
For purposes of GRI 3(b), EN X to GRI 3(b) explains, in relevant part, that:
For purposes of this Rule, the term “goods put up in sets for retail sale” shall mean goods which:
consist of at least two different articles which are, prima facie, classifiable in different headings….
consist of products or articles put up together to meet a particular need or carry out a specific activity; and
are put up in a manner suitable for sale directly to consumers without repacking
In the present case, both pacifiers and similar clips are often sold separately. See, e.g., www.carters.com/carters/Little-Bear-Pacifier-Clip/V_61127,default,pd.html. Furthermore, the pacifier is generic enough that it could be used with a number of clips on the market; the same is true of the clip, which could be used with a variety of pacifiers. As a result, the subject merchandise cannot be classified as a composite good of GRI 3(b). However, the subject merchandise can be classified as a set. The pacifier and clip are two different goods that are prima facie classifiable in different headings. They are also packaged together in a manner that is suitable for sale directly to consumers without repacking. Lastly, they are put up together to secure the pacifier to a child, thereby preventing it from being dropped or lost. As such, the pacifier and clip are put up together to meet a particular need or carry out a specific activity. Thus, the subject merchandise meets the definition of a set under GRI 3(b). This conclusion is consistent with prior CBP rulings that have classified merchandise as a set under GRI 3(b) when the merchandise consisted of multiple items, one of which was clearly the main item for which consumers were purchasing the set, and the rest of which were accessories or similar items. See, e.g., NY G80633, dated August 23, 2000; NY C89322, dated July 8, 1998; NY C87032, dated May 6, 1998; NY G81067, dated September 13, 2000; NY F87441, dated June 1, 2000; HQ 965103, dated September 12, 2002.
Because the subject merchandise meets the definition of a set, we examine its essential character. EN VIII to GRI 3(b) states the following:
The 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 by the role of the constituent material in relation to the use of the goods.
In the present case, the pacifier clip is meant to be used with the pacifier. Its whole purpose is to keep the pacifier in place on a child, and it could not be used on its own, without the pacifier. Furthermore, if consumers already own a pacifier and wish to purchase a clip, they could purchase the clip separately. Yet, it is unlikely that a consumer would purchase a clip without already owning a pacifier. The pacifier is a product that stands on its own, however, as a consumer could well purchase a pacifier on its own, without any expectation of needing a clip. As such, we find that the pacifier is the main product here, and that the clip meets the definition of an accessory. See Rollerblade, Inc. v. United States, 116 F.Supp. 2d 1247 (CIT 2000), aff’d 282 F.3d 1349 (Fed. Cir. 2002) (holding that an accessory must relate directly to the thing accessorized, and that, as a result, inline roller skating protective gear was not an accessory because it did not directly act on or contact the roller skates in any way). See also HQ 958710, dated April 8, 1996, HQ 950166, dated November 8, 1991, HQ 966216, dated May 27, 2003 (all stating that the term “accessory” is generally understood to mean an article which is not necessary to enable the goods with which they are intended to function. They are of secondary importance, but must contribute to the effectiveness of the principal article- e.g., they must facilitate the use or handling of the particular article, widen the range of its uses, or improve its operation).
Furthermore, while you did not submit information on the relative weight or value of the pacifier and the clip, the essential character is determined by the role of the constituent materials in relation to the use of the good. Where, as here, one item is an accessory to another item in the set, the main item imparts the essential character. As a result, we find that the pacifier imparts the essential character of this set.
The pacifiers are made of plastic. Heading 3926, HTSUS, describes articles of plastic that are not classified elsewhere in the nomenclature. The exemplars of this heading include pacifiers made of plastic. See EN 39.26. These exemplars describe the subject pacifiers. As a result, we find that the subject merchandise is described by the terms of heading 3926, HTSUS. This conclusion is consistent with prior CBP rulings. See, e.g., NY E89124, dated November 16, 1999; NY F84235, dated March 23, 2000; NY C87542, dated June 11, 1998; NY N199955, dated February 8, 2012.
Furthermore, we note that even if we had considered the clip to impart the essential character of the subject merchandise, we still would not consider it to be a toy of heading 9503, HTSUS. First, Note 1(v) to Chapter 95, HTSUS, excludes merchandise from the heading when it has a utilitarian function. Courts have also held that “an object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality.” Minnetonka Brands v. United States, 24 C.I.T. 645; 110 F. Supp. 2d 1020; 2000 Ct. Intl. Trade LEXIS 87; SLIP OP. 2000-86 (Ct. Int’l. Trade 2000). See also Ideal Toy Corp. v. United States, 78 Cust. Ct. 28; 1977 Cust. Ct. LEXIS 952 (Cust. Ct. 1977). In the present case, the clip serves a utilitarian purpose in that it clips the pacifier to a baby’s clothing, thereby preventing it from falling or being lost. Consumers who buy the clip purchase it for this practical function first; the product’s amusement value, if any, is clearly secondary. As such, the subject merchandise is precluded from classification in heading 9503, HTSUS.
In support of your argument to classify the subject merchandise as a toy of heading 9503, HTSUS, you cite NY F83431, dated March 15, 2000, and NY H87109, dated January 24, 2002. We acknowledge that these rulings classified similar merchandise as toys of heading 9503, HTSUS. However, we note that both rulings were issued before the implementation of Note 1(v) to Chapter 95, HTSUS, as Note 1(v) was implemented in 2007. Thus, NY F83431 and NY H87109 are revoked by operation of law. As such, they do not have any precedential value and will not be followed here. See HQ H017693, dated December 12, 2007.
Lastly, you argue that if the essential character analysis of GRI 3(b) does not resolve the issue of classification, then GRI 3(c) would resolve the issue in favor of heading 9503, HTSUS, because it is last in numerical order of the provisions being considered. In response, we note that because we have resolved the issue of classification at GRI 3(b), we do not reach a GRI 3(c) analysis.
HOLDING:
By operation of GRI 3(b), the subject pacifier and pacifier clip are classified under heading 3926, HTSUS. It is specifically provided for in subheading 3926.90.16, HTSUS, as “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Pacifiers.” The column one, general rate of duty is 3.1% ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Ieva O’Rourke, Chief
Tariff Classification and Marking Branch