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HQ 963267




January 27, 2000

CLA-2 RR:CR:GC 963267 HMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9030.40.00

Mr. Nathan Lampert
Techcomp International, Ltd.
5007 Concord Avenue
Great Neck, NY 11020

RE: Signal Generators; Other Instruments and Apparatus, Specially Designed for Telecommunications; HQ 961882 and HQ 961888, Revoked

Dear Mr. Lampert:

In Headquarters Ruling Letter (HQ) 961888, issued to you on August 3, 1998, Customs classified various signal generators under subheading 9030.89.00 of the Harmonized Tariff Schedule of the United States (HTSUS), as other instruments and apparatus for measuring or checking electrical quantities. We have reviewed this ruling and determined that the classification set forth is in error. See also HQ 963266, issued on this date, revoking HQ 961882, dated August 3, 1998. 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. 103182, 107 Stat. 2057 (1993), notice of the proposed revocation of HQ 961882 was published on December 15, 1999, in the Customs Bulletin, Volume 33, Number 50. No comments were received in response to this notice.

Therefore, this ruling revokes HQ 961888, and sets forth the correct classification for the signal generators. See also HQ 963266, issued on this date, revoking HQ 961882, dated August 3, 1998.

FACTS:

The merchandise consists of bit pattern generators, model SHF BPG20GIG, which have been the subject of New York (NY) and Headquarters (HQ) ruling letters. In PD B88154, dated August 12, 1997, 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 961888, reclassifying the signal generators under subheading 9030.89.00, HTSUS, and revoking PD B88154 (HQ 961882 also reclassified similar signal generators under subheading 9030.89.00, revoking NY C86285, dated April 30, 1998). The facts provided in HQ 961888 are as follows:

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.

New available information suggests 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 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 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 961888, 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 961882, dated August 3, 1998, 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.

The new evidence shows that the merchandise is specially designed for telecommunications. 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, HQ 961888 is hereby revoked.

HOLDING:

The signal generator, model SHF BPG20GIG is 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).”

EFFECT ON OTHER RULINGS:

HQ 961888, dated August 3, 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.

Sincerely,

John Durant, Director
Commercial Rulings Division


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