CLA-2 RR:CR:GC 961882 JAS
Mr. Ed Ohlmann
Tektronix, Inc.
P.O. Box 500
Beaverton, OR 97077-0001
RE: N Y C86285 Revoked; Signal Generator, Signal-Producing Device for Testing the Accuracy of Receiver Devices; Measuring or Checking Instrument; Instrument That Carries Out Steps in a Process for Inspecting Goods, Checking, United States v. Corning Glass Works; Section XVI, Note 1(m); HQ 954856
Dear Mr. Ohlmann:
In NY C86285, which the Director, National Commodity
Specialist Division, New York, issued to you on April 30, 1998,
signal generator models SME03, SMIQ02, SMIQ03, and R3561L, were
held to be classifiable in subheading 8543.20.00, Harmonized
Tariff Schedule of the United States (HTSUS), as other electrical
machines and apparatus, not specified or included elsewhere in
Chapter 85.
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. 103-182, 107 Stat. 2057, 2186 (1993),
notice of the proposed modification of NY C86285 was published on
July 1, 1998, in the Customs Bulletin, Volume 32, Number 26. No
comments were received in response to that notice.
FACTS:
The merchandise in issue, signal generators or function
generators, are electronic instruments that produce periodic
voltage or current waveforms, signals or pulses, that are used in
testing and calibration applications for a variety of electronic
equipment. These signal generators perform no independent
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measuring or checking function; rather, other instruments utilize
the signals they produce to measure or check the performance of
various electronic systems.
ISSUE:
Whether the signal generators in issue are checking
instruments of heading 9030.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). GRI 1 states in part
that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg.
35127, 35128 (Aug. 23, 1989).
Relevant heading 85.43 ENs, at p. 1518 and 1519, state the
heading covers all electrical appliances and apparatus not
falling in any other heading of Chapter 85, nor covered more
specifically by a heading of any other Chapter of the
Nomenclature, nor excluded by an applicable Section XVI legal
note.
Section XVI, Note 1(m), HTSUS, excludes from that Section
goods of Chapter 90. The issue, then, is whether there exists
any provision Chapter 90 that describes the signal generators
under consideration. In this regard, other ENs, at p. 1652,
contain the following statement regarding the scope of heading
90.30 "Apart from the above-mentioned types of instruments or
apparatus which generally effect direct measurements, the heading
also includes those which supply the operator with certain data
from which the quantity to be measured can be calculated
(comparative method)." (Emphasis added.) While not necessarily
conclusive, these ENs suggest that heading 9030 encompasses not
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only instruments and apparatus which directly perform a measuring
or checking function, but also those which generate electrical
signals utilized by other instruments and apparatus that do
perform such measuring or checking functions.
On a case-by-case basis, prior administrative and judicial
decisions should be considered instructive in interpreting
provisions of the HTSUS, particularly where the nomenclature
previously interpreted in those decisions remains unchanged and
no dissimilar interpretation is required by the text of the
HTSUS. In this respect, the Court of Customs and Patent Appeals
(now the Court of Appeals for the Federal Circuit) in United
States v. Corning Glass Works, C.D. 4716, rev'd., C.A.D. 1216
(1978), considered whether ampul inspection machines were
measuring or checking instruments under a nearly identical
provision of the Tariff Schedules of the United States (TSUS),
the HTSUS predecessor tariff code. The Court recited its
understanding of the common meaning of the term "checking" and
concluded it encompasses machines that carry out steps in a
process for inspecting ampuls to determine whether they conform
to an imperfection-free standard. Limiting the provision to
devices that (actually) measure or verify the accuracy of a
measurement, the Court concluded, improperly renders "checking"
superfluous. We find this decision instructive in determining
the scope of heading 9030, particularly when read in conjunction
with the referenced 90.30 ENs. See also HQ 954856, dated
September 10, 1993, and cases cited. For these reasons, the
signal generators in issue are provided for in heading 9030.
Section XVI, Note 1(m) thus eliminates heading 8543 from
consideration.
HOLDING:
Under the authority of GRI 1, signal generator models SME03,
SMIQ02, SMIQ03, and R3561L, are provided for in heading 9030.
They are classifiable in subheading 9030.89.00, HTSUS, as other
instruments and apparatus. The rate of duty is 2.3 percent ad
valorem.
NY C86285, dated April 30, 1998, is revoked. In accordance
with 19 U.S.C. 1625(c)(1), this ruling will become effective 60
days after its publication in the Customs Bulletin. Publication
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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
Commercial Rulings Division