CLA-2 RR:CR:GC 959750 RC
Port Director of Customs
c/o Chief, Residual Liquidation and Protest Branch
World Trade Center, Room 761
New York, New York 10048-0945
RE: PRD 1001-96-105526, plastic "gumball machines"; NY A85113
distinguished
Dear Sir:
This is our decision on Protest 1001-96-105526 timely filed
July 16, 1996, against your decision in the classification under
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA) of plastic "gumball machines."
FACTS:
The plastic "gumball machines" (item # EYKP44) measure
approximately 6-inches in height. They consist of a pink and
black base, a clear plastic globe (about the size of a tennis
ball) and a pink screw-top. The top opens to place small
articles inside that may be dispensed by turning a small geared
handle. The "gumball machines" are imported containing hair
ornaments that were classified separately in heading 9615,
HTSUSA. Classification of the hair ornaments is not in dispute.
The "gumball machines" are not designed to operate with coins. A
sample was submitted.
The protestant classified the "gumball machines" under
subheading 9503.90.0030, HTSUSA, the provision for other toys
(except models), not having a spring mechanism. You reclassified
the "gumball machines" under subheading 3924.90.5500, HTSUSA, the
provision for household articles of plastic.
ISSUE:
Whether "gumball machines" (item # EYKP44) are classifiable
as other household articles of plastic or as other toys.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRI's). The systematic
detail of the HTSUSA is such that virtually all goods are
classified by application of GRI 1, that is, 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 GRI's may
then be applied. The Harmonized Commodity Description and Coding
System Explanatory Notes (EN's), which represent the official
interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRI's. See, T.D.
89-80, 54 Fed.Reg. 35127 (August 23, 1989).
Heading 3924, HTSUSA, provides for other household articles
of plastic. Heading 9503, HTSUSA, provides for "Other toys . . .
and accessories thereof," i.e., all toys not specifically
provided for in the other headings of chapter 95. Although the
term "toy" is not defined in the tariff, the EN's to chapter 95
(page 1711) indicate that a toy is an article intended
essentially for the amusement of children or adults. In
comparing the competing provisions, household articles of plastic
and toys, we find that the toy provision describes the "gumball
machines" more specifically. While the "gumball machines" are
made of plastic, they do not appear to be durable as household
items.
It is Customs position that the amusement requirement means
toys should be designed and used principally for amusement.
Although neither the HTSUSA nor the EN's define the term, Customs
defines "principal use" as that use which exceeds each other
single use of the article. The EN's to heading 9503 (page 1712)
indicate that "[C]ertain toys (e.g., electric irons, sewing
machines, musical instruments, etc.) may be capable of a limited
use'; but they are generally distinguishable by their size and
limited capacity from real sewing machines, etc."
In Ideal Toy Corp. v. United States, 78 Cust, Ct. 28, C.D.
4688 (1977), the court stated that "[W]hen amusement and utility
become locked in controversy, the question becomes one of
determining whether the amusement is incidental to the
utilitarian purpose, or the utility purposes incidental to the
amusement."
In New York Ruling Letter (NYRL) A85113, dated July 3, 1996,
Customs held that a "gumball machine" measuring approximately 13
inches in height, consisting of a cast aluminum body, a glass
globe, and a plastic base with a tray, that did not take coins,
was "of a class or kind of machinery used in households,
restaurants, etc., to store snack foods" classifiable in heading
7615, HTSUSA, the provision for table, kitchen or other household
articles of aluminum. The "gumball machines" in NYRL A85113 were
fully functional and made of relatively durable materials.
These "gumball machines" (item # EYKP44) are limited in
function and durability. They are in essence designed to imitate
"real" "gumball machines" for the amusement of children. The
small-sized operating handles are well suited for child-size
fingers. Children will play with these "gumball machines"
pretending that they are operating "real" ones. These items are
analogous to the toy irons, sewing machines, tea pots, etc.,
cited in the EN's, that may be actually used, but are
distinguishable by their size and limited capacity from "real"
ones. They are not designed for household use. Instead, we find
that these "gumball machines" are designed primarily for the
amusement of children. Their capacity to store and dispense
small items is secondary. Therefore, these "gumball machines"
are properly classified in heading 9503, HTSUSA.
HOLDING:
The "gumball machines" (item # EYKP44) are properly
classified in subheading 9503.90.0030, HTSUSA, the provision for
"Other toys . . . and accessories thereof: Other, Other: Other
toys (except models), not having a spring mechanism." The
applicable duty rate is free.
You are instructed to allow the protest in full. A copy of
this decision should be attached to the Customs Form 19 to be
returned to the protestant.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated
August 4, 1993, Subject: Revised Protest Directive, this
decision should be mailed by your office to the protestant no
later than 60 days from the date of this letter. Any
reliquidation of the entries in accordance with the decision must
be accomplished prior to mailing of the decision. Sixty days
from the date of the decision, the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS, and to the
public via the Diskette Subscription Service, the Freedom of
Information Act, and other public access channels.
Sincerely,
John Durant, Director
Commercial RulingsDivision