nn

HQ 954131

June 4, 1993

CLA-2 CO:R:C:F 954131 ALS

CATEGORY: Classification

TARIFF NO.: 9503.49.0020

Mr. Larry K. Kaye

Transportation Manager

Cyrk International, Inc.

3 Pond Rd.

Gloucester, MA 01930

RE: Plastic Hand-Held Candy Dispenser; Modification of New York

Ruling Letter (NYRL) 868430, dated November 25, 1991

Dear Mr. Kaye:

In NYRL 868430, date November 2, 1991, our New York Seaport

Area Office advised you that a 3-1/2 inch high plastic hand-held

candy dispenser, one of several articles noted therein, was

classifiable in subheading 3924.10.5000, Harmonized Tariff

Schedule of the United States (HTSUSA). We have recently

reviewed that ruling in connection with a request for further

review of protest 4101-92-100033, dated July 16, 1992, filed on

behalf of your company. We have concluded that the prior

classification was incorrect. Our decision follows:

FACTS:

The article under consideration is a 3-1/2 inches high

plastic cartoon depiction of an M&M\~ candy. The face and body

portion of the article is oval-shaped, 3 inches high, 2 inches

wide and 1-1/2 deep. There is a large letter \"M\" on the front

thereof, like the actual candy, and a whimsical face. Arms and - 2 -

gloved hands are appended to the sides thereof, with one hand

raised in a waving position and the other hand at the side. Legs

with shoes are appended to the bottom of the article. The body

of the article is orange or brown according to the samples

submitted. The arms and legs are flesh colored. The gloves and

shoes are white. On the reverse side of the article there is a

disc with a flange which can be pushed upward to expose an

opening to an interior cavity.

ISSUE:

What is the classification of the subject article?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed

by the General Rules of Interpretation (GRI\'s). 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.

Although the article under consideration was originally

classified in subheading 3924.10.5000, HTSUSA, in NYRL 868430, it

was entered under subheading 8210.00.0000, HTSUSA, in the Customs

entry covered by the aforementioned protest. That protest

questioned the classification of the article in subheading

9503.49.0020, HTSUSA, in liquidation of the entry.

In considering this matter we noted that the Explanatory

Notes to Chapter 95 of the Harmonized System, which represent the

opinion of the classification experts at the international level,

indicates that \"\[T\]his chapter covers toys of all kinds whether

designed for the amusement of children or adults.\" In order for

an articles to be classified as a toy it must provide enjoyment

or amusement. It, however, does not have to be something with

which the possessor thereof physically plays, as long as it

evokes the same emotion. (See Headquarters Ruling Letter (HRL)

068668, dated October 23, 1981.) In considering the

applicability of the chapter 95 provisions to this article we - 3 -

noted the comical appearance and relatively sturdy construction

of the article.

We believe that the play value inherent in this article,

combined with its amusing features and anthropomorphic qualities

are intended to amuse the owner thereof the same way as toys.

While the article is functionally a dispenser we believe it is

intended to function primarily as a toy. 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 this instance,

the primary value of the item is its play value; the utilitarian

aspect of the merchandise is incidental to the amusement factor.

Thus, we have concluded that the primary propose of the article,

with its anthropomorphic and durable qualities and its ability to

provide amusement or enjoyment after the candy is consumed, is a

toy.

Accordingly, the hand-held candy dispenser which was one of

the articles subject of NYRL 868430, should be classified in

subheading 9503.49.0020, the provision for toys.

HOLDING:

Durable plastic cartoon depictions of M&M\~ candy are

considered to be for the enjoyment or amusement of their

possessors. Such articles, although they are functional hand-

held candy dispensers, are classifiable in subheading

9503.49.0020, HTSUSA, as a toy representing animals or non-human

creatures, and are subject to a general rate of duty of 6.8

percent ad valorem.

NYRL 868430 is accordingly modified.

We realize that your client may have undertaken contractual

obligations in reliance on NYRL 868430. Under the provisions of

section 177.9(d), Customs Regulations (19 CFR 177.9(d)), you may

obtain a delay of up to 90 days in the implementation of this

ruling if you can establish by documentary evidence, that you

reasonably relied on NYRL 868430 to your detriment. If you wish - 4 -

to request such a delay, your request and appropriate

documentation such as contracts, purchase order, shipping

documents, etc. should be received in this office within 30 days

from the issuance of this ruling. You should also include an

explanation therewith of the reason for the subheading utilized

in the entry which was covered by protest 4101-92-100033, as

noted above.

Sincerely,

John Durant, Director

Commercial Rulings Division