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HQ 966560




May 17, 2004

CLA-2 RR:CR:GC 966560 NSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 9030.40.0000

Area Director
JFK International Airport c/o Chief, Liquidation and Protest Branch Building 77
Jamaica, NY 11430

RE: Protest 4701-03-100488; Signal generators and signal analyzer

Dear Area Director:

This is our decision on Protest 4701-03-100488, filed by Vastera Solution Services Corporation on behalf of Lucent Technologies, Inc., against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of two signal generators and one signal analyzer. The entries under protest were liquidated on March 14, 2003 under subheading 9030.89.00, HTSUS, and this protest was timely filed on April 16, 2003.

FACTS:

The merchandise at issue is the E4432B Signal Generator, SMIQ03B Vector Signal Generator and FSIQ3 Signal Analyzer. Both the signal generators and analyzer are used in conjunction with one another for the following purposes:

Model E4432B signal generator is a bit error rate tester for data communication applications that measures the bit sequence output from a receiver with a known reference bit sequence.

Model SMIQ03B is a signal generator for analog and digital modulation that generates time division multiple access, code division multiple access, wideband code division multiple access and code division multiple access 2000 standard signals to all main mobile radio standards.

Model FSIQ3 signal analyzer can measure the intermodulation and harmonics in a domain frequency, making it an appropriate tool for Adjacent Channel Power Ratio measurements in all mobile radio systems by providing diverse measurements on signals with digital or analog modulation.

In HQ 963266, dated January 27, 2000, Customs classified signal generators under subheading 9030.40.00, HTSUS, finding that the signal generators were specifically designed for telecommunications. In that ruling, which included the classification of model SMIQ03, a substantially similar model to SMIQ03B at issue, signal generators were described as 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. Customs ruled that although signal generators perform no independent measuring or checking function, other instruments utilize the signals they produce to measure or check the performance of various electronic systems.

Protestant claims classification under subheading 9030.40.00, HTSUS, as “Other instruments and apparatus, specially designed for telecommunications...”

ISSUE:

What is the tariff classification under the HTSUS of the signal generators and signal analyzer?

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. The ENs, although neither dispositive or legally binding, facilitate classification by providing a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

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.

The HTSUS provisions under consideration are as follows:

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:

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

The articles at issue are two signal generator models and one signal analyzer. At liquidation, this equipment was classified under subheading 9030.89.00, HTSUS. Protestant claims that the two signal generators and signal analyzer are classified under heading 9030.40.00, HTSUS, as other instruments and apparatus, specially designed for telecommunications.

We note initially that in HQ 963266, dated January 27, 2000, Customs classified signal generators substantially similar to the instant articles under subheading 9030.40.00, HTSUS. In doing so, Customs revoked HQ 961882, dated August 3, 1998, which previously classified those signal generators under subheading 9030.89.00, HTSUS. In revoking that ruling, Customs held that subheading 9030.89.00, HTSUS, is a “basket” provision and thus less specific than subheading 9030.40.00, HTSUS, which provides for other instruments and apparatus that are designed for telecommunications. Therefore, because the signal generators at issue therein were more specifically described under subheading 9030.40.00, HTSUS, classification under the more specific subheading was appropriate.

As in that ruling, because in the instant case the same two competing subheadings within heading 9030, HTSUS, are at issue, GRI 3(a) is applied through GRI 6. GRI 3(a) states that when goods are prima facie classifiable under two or more subheadings, the subheading which provides the most specific description shall be preferred to a subheading providing a more general description. In 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)), the court addressed GRI 3(a), holding that under the rule of relative specificity, the subheading with requirements more difficult to satisfy will prevail and be applied over a more general subheading because it describes the article with the greatest degree of accuracy and certainty. Additionally, with regard to classification when a “basket” provision is being considered, classification therein 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).

In this instance, the Protestant has provided sufficient evidence to show the signal generators and analyzer at issue are specially designed for analog and digital telecommunication. The signal generators consist of a real time I/Q baseband and data generator and the signal analyzer consists of a global system for mobile telecommunications test software base station and firmware; the signal generators are used in conjunction with the signal analyzer. Furthermore, the signal generators comply with International Telecommunications Union standards and can generate signals to all main mobile radio standards. These specifications indicate that the equipment is designed for analog and digital telecommunication devices. Lastly, both signal generators are geared to radio frequency signals, which is typical of those that are used for telecommunication devices.

In view of the foregoing, the signal generators and analyzer are more specifically described, and therefore classified, under subheading 9030.40.00, HTSUS.

HOLDING:

The two signal generators, models E4432B and SMIQ03B, and signal analyzer, model FSIQ3, are classified under subheading 9030.40.0000, Harmonized Tariff Schedule of the United States Annotated, as “Other instruments and apparatus, specially designed for telecommunications...” The applicable rate of duty is Free.

You are instructed to ALLOW the protest.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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