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HQ 952253

December 8, 1992

CLA-2 CO:R:C:F 952253 ALS


TARIFF NO.: 4014.90.5000

Ms. Valerie Haack
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.


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.


Are the articles classifiable in subheading 3926.90.1500 or subheading 4014.90.5000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?


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
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.

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.


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
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.


John Durant, Director
Commercial Rulings Division

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