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HQ 958719




February 26, 1998

CLA-2 RR:CR:GC 958719 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3924.10.5000

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?

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

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