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HQ 950288


January 10, 1992
CLA-2 CO:R:C:F 950288 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.6000

District Director of Customs
55 Erieview Plaza
Cleveland, Ohio 44114

RE: Decision on Application for Further Review of Protest No. 4102-91-100073, filed May 28, 1991, concerning the classification of a Beetlejuice Vanishing Vault from China.

Dear Sir:

This is a decision on a protest filed May 28, 1991, against your decision in the classification and liquidation of an item marketed as "Beetlejuice Vanishing Vault" also known as "BJ Magic Box (Condo)", item number 30140, entry made on August 15, 1990, and liquidated on May 17, 1991.

FACTS:

You classified the Beetlejuice vault in subheading 9503.90.6000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for other toys not having a spring mechanism. Protestant claims that the merchandise should be classified in subheading 9505.90.2000, HTSUSA, the provision for magic tricks, practical joke articles and parts and accessories thereof.

The Beetlejuice vault is a plastic replica of a grave site with the vault/plot measuring approximately eight inches long and 2-1/2 inches in height. The tombstone at the end of the plot measures approximately 7-1/2 inches in height. The Beetlejuice vault is green and purple in color and is decorated with images of skeletons, worms, spiders and other insects. Imprinted on the tombstone are the words "Here Lies Beetlejuice" with an arrow pointing down towards the vault. Various stickers are included with the item. Also sold with the item, although not included with the sample which we received, is a miniature (described on the box as "micro") Beetlejuice figure.

The merchandise is described on the box in which it is sold as "Vanishing Vault Playset, With "Disappearing" Micro Beetlejuice." The operation of the item is based on the fact
that although there appears to be only one drawer in the box, there are, in fact, two drawers. By manipulating a sign which is attached to the vault, a person can orchestrate which drawer is seen. In this way, the user can make it appear that a large Beetlejuice figure (not sold with the merchandise) has been shrunk to the miniature figure that is sold with the merchandise. The box states that "[Y]ou can also transform any of the accessory pieces that come with the Beetlejuice action figures the same way."

ISSUE:

Whether the "Beetlejuice Vanishing Vault" should be classified as an "other toy" or as a magic trick and/or practical joke article?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system 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.

First, we will determine whether this item can be properly classified by reference to GRI 1 as a magic trick or practical joke article under heading 9505, HTSUSA, and particularly subheading 9505.90.2000, HTSUSA. If the Beetlejuice vault does not qualify for classification in heading 9505, HTSUSA, it will be classified as a toy in heading 9503, HTSUSA, since it is clearly designed and principally used for amusement.

Subheading 9505.90.2000, HTSUSA, applies to the following:

Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:

Other:

Magic tricks and practical joke articles: parts and accessories thereof.

The Explanatory Notes, which constitute the official interpretation of the tariff at the international level, provide guidance as to what types of items are to be classified in the various headings and the first six digits of subheadings of the tariff schedule. Explanatory Note 95.05(B) states that the subheading includes:

(B) Conjuring tricks and novelty jokes, e.g., packs of cards, tables, screens and containers, specially designed for the performance of conjuring tricks; novelty jokes such as sneezing powder, surprise sweets, water-jet button-holes and "Japanese flowers".

Although subheading 9505.90.2000, HTSUSA, includes both magic tricks and practical joke articles, your primary contention is that this item should be classified as a magic trick. To support this claim, you note that the "micro-figure enclosed can be made to disappear/reappear by a flip of the sign." You also point to the artwork on the box and the writing, also on the box, which states that the user may place any Beetlejuice action figure in the vault and "magically transform them into micro Beetlejuice."

It is our determination, however, that the Beetlejuice vault is not classifiable as a magic trick. In order for an item to be classified as a magic trick, Customs has stated that there must be evidence that the item would be used as part of a performance of magic. As a logical rule under this test, Customs has also stated that the mere use of the word "magic" on a product does not qualify the merchandise for tariff treatment as a magic trick. These rules were stated and applied in Headquarters Ruling Letter (HRL) 072946, dated August 7, 1984, and HRL 078864, dated November 4, 1986. There is no evidence that the Beetlejuice vault is to be, or is ever intended to be, used as part of a performance of magic.

It is also our determination that this item is not classifiable as a practical joke article. In Parksmith Corporation v. United States, 67 Cust. Ct. 405, 408, C.D. 4304 (1970), the court stated that a practical joke article is an article which causes humor by "somehow placing an individual at a disadvantage through a trick or prank." Although a person may be humorously amused by the appearance and operation of the Beetlejuice vault, no individual will be placed at a humorous disadvantage.

Therefore, as this item appears to be designed and principally usedfor amusement, it is classifiable as a toy in
heading 9503, HTSUSA. We note that it is marketed in a catalog entitled "Kenner Action Toy Guide" that was included with the submitted sample. This catalog depicts mostly toys and dolls; the Beetlejuice vault appears in a section dedicated to various Beetlejuice related toys and dolls. There are no sections dedicated to magic tricks or practical joke items.

HOLDING:

The item marketed as "Beetlejuice Vanishing Vault", item number 30140, is classified in subheading 9503.90.6000, HTSUSA, the provision for other toys, other, other toys (except models), not having a spring mechanism. The applicable duty rate is 6.8% ad valorem.

The protest should be denied. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

Sincerely,

John Durant, Director

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