CLA-2 CO:R:C:M 954869 MBR

Mr. Arne Midtskog
Midtskog & Associates
17221 N.E. 152nd Street
Woodinville, WA 98072

RE: "Opticall"; PTS 109 Tone Tracker; PTS 287 Oscillator; T 1544 Carrier Detector; Optical Telephone Hand Test Set; Pair Tracking System; Electrical Apparatus For Line Telephony; Instruments and Apparatus for Measuring or Checking Electrical Quantities; Specially Designed for Telecommunications; Measuring; Checking; HQs 954057, 089594, 089928; NYs 864957, 864960, 864992

Dear Mr. Midtskog:

This is in reply to your letter of August 13, 1993, requesting classification of the Chesilvale Electronics "Opticall," the "PTS 109 Tone Tracker," "PTS 287 Oscillator" and the "T 1544 Carrier Detector," under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

You state that the "Opticall" is identical to the DSTS 5 telephone hand test set (ruled upon in HQ 954057, dated July 26, 1993), except that the Opticall is used for testing fiber optic cables instead of a copper line or cable. The Opticall consists of a hand set and a portable base unit. The literature submitted states that its features are as follows: continuous wave & 2kHz output, full duplex digital, field ruggedised and easy to use. Telephone "test sets" are designed for use in telephonic installation and repair, central office frame and switch train analysis, PABX and station equipment installation, and trouble isolation. These devices can also be used to "butt in" to an ongoing call to listen for static or other irregularities.

You also state that the PTS (Pair Tracing System) 109 Tone Tracker (PTS Super Range) and its PTS 287 Oscillator are identical

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in usage to the PTS 100 (also ruled upon in HQ 954057), except that the PTS 109 is more sensitive. This merchandise functions as follows: the oscillator is connected to twisted pair telephone lines, at which point the tone tracker probe can be used to trace the line.

The T1544 Carrier Detector is similar to the PTS except it is designed to trace carrier circuits with no interference or interruption.

ISSUE:

Are the Opticall telephone hand test set and the various pair tracing system units classifiable in heading 8517, HTSUS, as electrical apparatus for line telephony, in heading 9030, HTSUS, which provides for oscilloscopes and other instruments for checking electrical quantities, or in heading 9031, HTSUS, as checking instruments, appliances and machines, not specified or included elsewhere in Chapter 90?

LAW AND ANALYSIS:

The Harmonized Tariff Schedule of the United States (HTSUS) provides that the classification of articles is governed by the General Rules of Interpretation (GRI's). GRI 1 states in pertinent part:

"...classification shall be determined according to the terms of the headings and any relative section or chapter notes...."

The promotional literature lists numerous applications for the Opticall, including military communications, secure intercoms, and private networks. However, you state that the Opticall is strictly used in the U.S. as a fiber optic telephone hand test set. The Additional U.S. Rules of Interpretation state as follows:

1. In the absence of special language or context which otherwise requires--

(a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of the goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.

Similar merchandise was ruled upon in HQ 954057, dated July 26, 1993, HQ 089594, dated September 26, 1991, and HQ 089928, dated November 6, 1991. These rulings held that, pursuant to Section XVI, Legal Note 1(m) [which provides that Section XVI does not

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cover articles of chapter 90], the telephone test sets were classifiable in subheading 9031.80.00, HTSUS. The principal function of the Opticall is to check telephonic operation. Therefore, since the Opticall is used, in the U.S., at this time, as a telephone hand test set, it is also classifiable in subheading 9031.80.00, HTSUS.

However, it is important to note that other types of telephone line test equipment have been properly classified in subheading 9030.40.00, HTSUS, which provides for: "[o]scilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities...: [o]ther instruments and apparatus, specially designed for telecommunications (for example, cross-talk meters, gain measuring instruments, distortion factor meters, psophometers)." See NY 864957, dated July 29, 1991, NY 864960, dated July 29, 1991, NY 864992, dated July 29, 1991. These goods where found to have the principal function of "instruments and apparatus for measuring or checking electrical quantities."

The PTS 109 Tone Tracker Probe, PTS Oscillator and the T1544 Carrier Detector are also similar to the merchandise ruled upon in HQ 954057. The oscillator is connected to a twisted pair telephone line and the tone tracker probe can then be used to trace the line. The T1544 Carrier Detector functions like the PTS 109, the only difference being that the T1544 is designed to trace carrier circuits. These devices are all designed to perform the function of measuring or checking electrical quantities. Therefore, since they are "specially designed for telecommunications," they are classifiable in subheading 9030.40.00, HTSUS. HOLDING:

The Chesilvale Electronics "Opticall" fiber optic telephone hand test set is classifiable in subheading 9031.80.00, HTSUS, which provides for: "[m]easuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter: [o]ther instruments, appliances and machines." The rate of duty is 4.9 percent ad valorem.

The PTS 109 Tone Tracker, PTS 287 Oscillator and the T1544 Carrier Detector are all classifiable in subheading 9030.40.00, HTSUS, which provides for: "[o]scilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities...: [o]ther instruments and apparatus, specially designed for telecommunications (for example, cross-talk

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meters, gain measuring instruments, distortion factor meters, psophometers)." The rate of duty is 4.9 percent ad valorem.

Sincerely,

John Durant, Director