CLA-2 RR:CR:GC 962897 HMC
Port Director of Customs
511 NW. Broadway
Rm. 198
Portland, OR 97209
RE: Protest 2904-99-100004; Signal Generators; Other Instruments and Apparatus, Specially Designed for Telecommunications
Dear Port Director:
This is our decision on Protest 2904-99-100004, filed against your classification of signal generators, models SME03, SMIQ02, SMIQ03, R3561L, imported by Tektronix, Inc. The entries under protest were liquidated between October 30, 1998, and January 15, 1999, and this protest timely filed on January 19, 1999.
FACTS:
The merchandise under protest consists of signal generators, which have been the subject of New York (NY) and Headquarters (HQ) ruling letters. In NY C86285, dated April 30, 1998, the merchandise was held to be classifiable under 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. On August 3, 1998, Customs issued HQ 961882, reclassifying the signal generators under subheading 9030.89.00, HTSUS, and revoking NY C86285. The facts provided in HQ 961882 are as follows:
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 measuring or checking function; rather, other instruments utilize the signals they produce to measure or check the performance of various electronic systems.
In a letter dated January 19, 1999, the protestant provided new information which states that the signal generators are designed for testing telecommunication products, such as radios, mobile and cellular telephones and cellular telephone base stations, by producing a variety of analog and/or digital signals conforming to telecommunications standards. The protestant explains that the signal generators create a test signal based on a specific telecommunication standard that acts as a stimulus, transmitted via metallic cable. The telecommunication products connect to a designated signal generator and to a measuring or checking device that verifies the operation and accuracy of the product. Without the designed and calibrated signal generators, this testing cannot be carried out.
The entries were liquidated with classification under subheading 9030.89.00, HTSUS, as other instruments and apparatus. Protestant contends that the merchandise is more specifically classifiable under subheading 9030.40.00, HTSUS.
The 1997 and 1998 HTSUS provisions under consideration are as follows:
9030 Oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028; instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionizing radiations; parts and accessories thereof:
9030.40.00 Other instruments and apparatus, specially designed for telecommunications (for example, cross-talk meters, gain measuring instruments, distortion factor meters, psophometers)
* * * *
Other instruments and apparatus:
9030.89.00 Other
ISSUE:
Whether the signal generators are classifiable as other instruments and apparatus, specially designed for telecommunications under subheading 9030.40.00, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the 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. GRI 6 states that the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
In HQ 961882, Customs found that the merchandise was described by heading 9030, HTSUS. Citing United States v. Corning Glass Works, 66 C.C.P.A. 25, 586 F.2d 822 (1978), Customs determined that heading 9030, HTSUS, encompasses not only instruments and apparatus which directly performed 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. It found that the signal generators were not classifiable under subheading 8543.20.00, HTSUS, reasoning that they were excluded from classification in Chapter 85 by Note 1(m) to Section XVI, HTSUS. The merchandise was classified under subheading 9030.89.00, HTSUS. (See also HQ 961888, dated August 3, 1993, for a similar finding.) Protestant claims that the signal generators should have been classified under subheading 9030.40.00, HTSUS, because they are used exclusively for testing wireless telecommunication products.
GRI 3(a), states in part that when, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more subheadings (through GRI 6), the subheading which provides the most specific description shall be preferred to subheadings providing a more general description. Classification turns on which subheading is more definite or specific. The more specific subheading will prevail over a more general subheading.
Courts have applied the “more difficult to satisfy” test to determine the more specific of competing tariff provisions. The provision with requirements that are more difficult to satisfy and that describe the article with the greatest degree of accuracy and certainty will prevail. See Mitsui Petrochemicals (America), Ltd. v. U.S., Slip Op. 97-108 (CIT 1997), and Orlando Food Corp. v. US, 140 F.3d 1437 (Fed. Cir. 1998), citing United States v. Siemens Am., Inc., 68 C.C.P.A. 62, 70, 653 F.2d 471, 477 (1981). The “analysis is also guided by the general rule of customs jurisprudence that, in the absence of legislative intent to the contrary, a product described by both a use provision and an eo nomine provision is generally more specifically provided for under the use provision.” Orlando Food Corp. v. US, 140 F.3d 1437, 1441 (Fed. Cir. 1998)(quoting, United States v. Siemens Am., Inc., 653 F.2d 471, 478 (CCPA 1981))(internal quotation marks omitted). In addition, insofar as classification in a “basket” provision is concerned, the Courts have stated that “[c]lassification of imported merchandise in a ‘basket’ provision is appropriate only when there is no tariff category that covers the merchandise more specifically.” See Apex Universal, Inc. v. United States, CIT Slip Op. 98-69 (1998). These are aids “for resolving issues where the competing provisions are otherwise in balance.” Orlando Food Corp. v. US, 140 F.3d at 1441 (Fed. Cir. 1998)(quoting, Siemens Am., 653 F.2d at 478 n.6 (CCPA 1981)).
Subheading 9030.89.00, which provides for other instruments and apparatus; other, is a “basket” provision and thus less specific than subheading 9030.40.00, which provides for other instruments and apparatus, specially designed for telecommunications (for example, cross-talk meters, gain measuring instruments, distortion factor meters, psophometers). Subheading 9030.40.00 describes an identifiable class of instruments and apparatus of heading 9030, HTSUS, whereas subheading 9030.89.00 describes a more general category of instruments and apparatus of heading 9030.
Protestant has provided sufficient evidence to show that the merchandise is specially designed for telecommunications. Protestant has shown that the signal generators are specifically engineered to generate electronic signals for testing wireless communication devices, based on specific telecommunications standards. The signal generators in conjunction with checking devices allow the tester to verify the operation and accuracy of the cellular telephone, radio or other telecommunications products. Therefore, we find that the signal generators are classifiable under subheading 9030.40.00, HTSUS. Accordingly, pursuant to 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 (1993)), appropriate action will be taken to revoke HQ 961882 and HQ 961888.
HOLDING:
The signal generators, models SME03, SMIQ02, SMIQ03, R3561L are classifiable under subheading 9030.40.00, HTSUS, as “Other instruments and apparatus, specially designed for telecommunications (for example, cross-talk meters, gain measuring instruments, distortion factor meters, psophometers).”
This protest should be ALLOWED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division