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HQ 959750




November 25, 1997

CLA-2 RR:CR:GC 959750 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.0030

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

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