United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1998 HQ Rulings > HQ 961504 - HQ 961986 > HQ 961888

Previous Ruling Next Ruling
HQ 961888

AUGUST 3, 1998

CLA-2 RR:CR:GC 961888 JAS


TARIFF NO.: 9030.89.00

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.


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,
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.


Whether the BPG in issue is a checking instrument of heading 9030.


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
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.


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.

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)).


John Durant, Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: