CLA-2 RR:CR:GC 961888 JAS
Mr. Nathan Lampert
Techcomp International, Ltd.
5007 Concord Avenue
Great Neck, NY 11020
RE: PD B88154 Modified; Bit Pattern Generator, Signal-Producing Device Used in Testing Communications Equipment; Measuring or Checking Instrument; Instrument That Carries Out Steps in
a Process of Inspecting Goods, Checking, United States v. Corning Glass Works; Section XVI, Note 1(m); HQ 954856
Dear Mr. Lampert:
In PD B88154, which the Area Port Director of Customs,
Washington, D.C., issued to you on August 12, 1997, the model SHF
BPG20GIG bit pattern generator was 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. The
classification expressed in PD B88154 with respect to the model
SHF EA20GIG error analyzer (EA) remains unaffected and is not in
issue here.
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 PD B88154 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 model SHF BPG20GIG bit pattern generator (BPG), is
described as being used in testing communications equipment. The
device sends either an electrical or optical signal to the device
being tested and also to the EA which compares the signals. PD
B88154 contained no further description of the BPG. However,
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available information suggests the BPG is a type of signal
generator which performs no independent measuring or checking
function; rather, other instruments like the EA utilize the
signals it produces to measure or check the performance of
various electronic systems.
ISSUE:
Whether the BPG in issue is a checking instrument 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 in Chapter 90 that describes the BPG 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
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method)." (Emphasis added). While not necessarily conclusive,
these ENs suggest that heading 9030 encompasses not 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, we
conclude that the BPG in issue here is provided for in heading
9030. Section XVI, Note 1(m) thus eliminates heading 8543 from
consideration.
HOLDING:
Under the authority of GRI 1, the model SHF BPG20GIG bit
pattern generator is provided for in heading 9030. It is
classifiable in subheading 9030.89.00, HTSUS, as other
instruments and apparatus. The rate of duty is 2.3 percent ad
valorem.
PD B88154, dated August 12, 1997, is modified accordingly.
In accordance with 19 U.S.C. 1625(c)(1), this ruling will become
effective 60 days after its publication in the Customs Bulletin.
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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
Commercial Rulings Division