CLA-2 RR:CR:GC 958719 ALS
Mr. Herbert Lynch
Sullivan and Lynch, P.C.
Attorneys and Counselors at Law
156 State St.
Boston, MA 02109-2508
RE: M&M Fun Machine
Dear Mr. Lynch:
This is in reference to your letter of November 28, 1995,
requesting reconsideration of New York Ruling Letter (NYRL)
868430, dated November 25, 1991, as to the subject item. We
regret the delay in responding to your request.
FACTS:
The item under consideration is made of molded plastic and
is composed of 2 parts with an overall height of approximately 9
inches. The bottom portion, which is approximately 3-1/2 inches
high and is fire engine red in color, serves as a stand for the
top of the article. The top portion of the article is reservoir-like and is designed to hold M&M candy or other similarly- sized
items which can be dispensed through a bright yellow spring-activated chute in the front of its base. The top portion of the
article has a green cap with the letter M on it. The cap can be
removed to load the candy into the reservoir. The request states
that the reservoir portion of the article is shaped like a M&M
candy and that the essential character of the article is to
provide amusement through interactive play and visual observation
and that the utilitarian aspect of the article is subservient to
its amusement aspects. It is further stated that the article
should be classified as a toy under subheading 9503.90.0060,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA).
ISSUE:
Is the instant molded plastic candy dispenser a toy
classifiable under subheading 9503.90.0060, HTSUSA?
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LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUSA.
GRI 1 requires that classification is to be 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 headings and legal notes do not otherwise require, the
remaining GRI's are applied, taken in order.
We have reviewed NYRL 868430, dated November 26, 1991, and
found that it described the article as being approximately 9
inches in height in the form of a traditional gumball machine
with a clear bubble-type top. The candy is dispensed from the
chute on the front of the article, which is controlled by a
spring loaded door. Through observation of the sample provided
with the request, we have confirmed that this description is
correct.
Although counsel states that the primary purpose of the
article is to provide amusement and only secondarily to perform
the utilitarian function of dispensing candy, (Counsel indicates
that is why the article is called a Fun Machine), we have
examined the article and have been unable to confirm the stated
amusement function. It appears to be nothing more or less than
an inexpensive, but functional, candy dispenser and is
essentially similar to inexpensive gumball dispensers. Any
amusing qualities the article might possess are clearly
subsidiary to its utilitarian function. Accordingly, we have
concluded that classification of the item in NYRL 868430 was
appropriate.
HOLDING:
A molded plastic candy dispenser with a base which supports
clear plastic reservoir top designed to hold and dispense M&M
candy or other similarly sized item is classifiable in subheading
3924.10.5000, HTSUSA, the provision for Tableware, kitchenware,
other household articles...of plastics: Other. Merchandise so
classified is subject to a general rate of duty of 3.4 percent ad
valorem.
NYRL 868430, dated November 2, 1991, is hereby confirmed as
to the instant article.
Sincerely,
John Durant, Director
Commercial Rulings Division