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HQ 958298




January 17, 1996

CLA-2 RR:TC:MM 958298 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 9504.90.40

Mr. Richard Miller
Recoton Corporation
2950 Lake Emma Road
Lake Mary, Florida 32746

RE: Lighted Magnifier; Section XVI, note 2; Chapter 90, note 1(k), 2; Chapter 95, note 3; Additional U.S. Rule of Interpretation 1(c); accessory; HQs 950166, 952673, 952716; NYs 812016, 812913; NY 810663 revoked

Dear Mr. Miller:

This is in response to your letter of August 7, 1995, requesting the classification of a lighted magnifier for a hand held video game under the Harmonized Tariff Schedule of the United States (HTSUS). Specifically, you request that we reconsider NY 810663, which was issued to you on May 30, 1995, by the Area Director of Customs, New York Seaport. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY 810663 was published November 22, 1995, in the Customs Bulletin, Volume 29, Number 47.

FACTS:

The article in question is the "Light & Magnifier" for the "Gameboy," hand held video game (product number V357). The battery-powered, plastic article magnifies the video game's display screen, and, by the use of two small bulbs, illuminates it to allow the user to play the game in the dark. The light is also useful during the day to increase the contrast and sharpness of the screen.

ISSUE:

Whether the lighted magnifier is classifiable as an optical instrument (magnifying glass) under heading 9013, HTSUS, or as an accessory for arcade, table or parlor games under heading 9504, HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ."

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The headings under consideration are as follows:

9013 Liquid crystal devices not constituting articles provided for more specifically in other headings; lasers, other than laser diodes; other optical appliances and instruments, not specified or included elsewhere in this chapter; parts and accessories thereof

9504 Articles for arcade, table or parlor games, including pinball machines, bagatelle, billiards and special tables for casino games; automatic bowling alley equipment; parts and accessories thereof

In NY 810663, the Area Director of Customs, New York Seaport, held that the lighted magnifier was classifiable under subheading 9013.80.20, HTSUS, which provides for other optical appliances and instruments: magnifying glasses. You contend that the magnifier is classifiable as an accessory for a game machine under subheading 9504.90.40, HTSUS.

With regard to the classification of accessories, Additional U.S. Rule of Interpretation 1(c), HTSUS, states that "[i]n the absence of special language or context which otherwise requires . . . a provision for 'parts' or 'parts and accessories' shall not
prevail over a specific provision for such part or accessory [underlining added]." In the instant case, the "special language or context" contemplated by the above rule exists.

Note 3 to chapter 95, HTSUS, provides that "parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles." Thus, subject to note 1 to chapter 95, HTSUS (which is not at issue in this instance), if the articles in question are accessories that are solely or principally used with an article of chapter 95 (specifically, the arcade, table or parlor games of heading 9504, HTSUS), they must be classified under that heading, regardless of whether they are covered by another provision elsewhere in the tariff schedule (i.e., heading 9013, HTSUS). See HQ 952716, dated March 3, 1993 (wherein swimming pool thermometers were classified as swimming pool accessories under heading 9506, HTSUS, rather than as thermometers under heading 9025, HTSUS); Chapter 90, note 1(k), HTSUS. See also Section XVI, note 2; Chapter 90, note 2, HTSUS (for contrasting treatment of parts and/or accessories).

EN 95.04, pg. 1589, states that heading 9504, HTSUS, includes "[v]ideo games (used with a television receiver or having a self-contained screen) . . . ." Thus, "Gameboy" video games are classifiable under heading 9504, HTSUS. See HQ 952673, dated February 3, 1993 (wherein the "Sega CD" video game was classified under heading 9504, HTSUS). The lighted magnifier, which is solely used with the "Gameboy" video game, magnifies and illuminates the game's display screen. The device, although not necessary to enable the game to fulfill its intended function, facilitates its use and improves its operation. See HQ 950166, dated November 8, 1991 (concerning the classification of "accessories"). Thus, the lighted magnifier is a video game accessory, and it is classifiable under subheading 9504.90.40, HTSUS, which provides for accessories for game machines. See NY 812016, dated June 29, 1995; NY 812913, dated July 26, 1995 (concerning the classification of other video game accessories under subheading 9504.90.40, HTSUS). Accordingly, NY 810663 must be revoked.

HOLDING:

The "Light & Magnifier" is classifiable under subheading 9504.90.40, HTSUS, which provides for accessories for game machines, other than coin- or token-operated. The corresponding rate of duty for articles of this subheading is free.

In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after publication in the Customs Bulletin. Publication of rulings or decisions
pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,

John Durant, Director

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