CLA-2 OT:RR:CTF:TCM H047556 TNA
Port Director, San Francisco Service Port
U.S. Customs and Border Protection
555 Battery Street San Francisco, CA 94111
Re: Application for Further Review of Protest No: 2809-08-100468; classification of spectrum analyzers
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2809-08-100468, timely filed on August 20, 2008, on behalf of Agilent Technologies Inc. (“Agilent”). The AFR concerns the classification of spectrum analyzers under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject merchandise consists of three models spectrum analyzers: model number E4405B - ESA-E; model number E4447A – PSA High Performance; model number E4407B – ESA-E; and one signal source analyzer, model number E5052A.
In general, spectrum analyzers are devices used to examine the spectral composition of some electrical, acoustic, or optical waveform. They can also measure the power spectrum. Model number E4405B is a general purpose spectrum analyzer with an operating range of up to 13.2 GHz. Model number E4407B is a general purpose spectrum analyzer with an operating range of up to 26.5 GHz. The term “general purpose” means that these devises can test many of the parameters within radio communications.
Model number E4447A monitors complex RF, microwave, and millimeter-wave signals up to 42.98 GHz. It is used to make phase noise or noise figure measurements, and to perform modulation analysis on digital cellular formats.
Model number E5052A is a signal source analyzer that measures phase noise testing, principally for cellular telephone handsets, cellular base stations, and other communications applications.
All four of these products are digital electronic devices used to examine the frequency and power of radio and microwave communications signals in communications components and systems. The vast majority of their applications are in the research and development, manufacture, and maintenance of cellular telephone systems and other wireless communications systems.
On December 26, 2007, the merchandise was entered at the port of San Francisco under subheading 9030.40.00, HTSUS, as “Other instruments and apparatus, specially designed for telecommunications.” On July 11, 2008, Customs and Border Protection (“CBP”) liquidated the merchandise in subheading 9030.89.01, HTSUS, which provides for “Other instruments and apparatus: Other.” Agilent timely filed its protest and AFR on August 20, 2008, claiming classification as entered under subheading 9030.40.00, HTSUS.
ISSUE:
Whether spectrum analyzers are classified in subheading 9030.40.00, HTSUS, as apparatus specifically designed for telecommunications, or under subheading 9030.89.01, HTSUS, as an other instrument or apparatus?
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 2809-08-100468 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or similar merchandise. Specifically, protestant argues that substantially similar merchandise was classified under subheading 9030.40.00, HTSUS, as being specially designed for telecommunications in HQ 963266, dated January 27, 2000; HQ 966560, dated May 17, 2004; and NY F86652, dated May 26, 2000.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The 2007 HTSUS headings under consideration are the following:
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:
Other
Because there is no dispute that the merchandise is classified in heading 9030, HTSUS, by application of GRI 1, consideration must now be given to classification of the merchandise within subheadings of heading 9030, HTSUS. Protestant argues that the subject merchandise should be classified in subheading 9030.40, HTSUS, because the subject merchandise performs spectrum analysis on radio frequency (“RF”) or microwave signals. Engineers and technicians use them to measure transmitters such as those for radio stations, cell phone base stations, and wireless local area network (“LAN”) transmitters. The models of the merchandise at issue can tune in to many different frequencies and measure the strength of many signals at once.
Neither the relevant headings of the HTSUS nor the relevant ENs define the term “telecommunications,” however. Therefore, we must consult dictionaries and other lexicographic materials to determine its meaning. See, e.g., Lonza v. United States, 46 F.3d. 1098; 1995 U.S. App. LEXIS 1821; 16 Int’l Trade Rep (BNA) 2551.
Newton’s Telecom Dictionary defines telecommunications as “the art and science of ‘communicating’ over a distance by telephone, telegraph, and/or radio. The transmission, reception and the switching of signals, such as electrical or optical, by wire, fiber or electromagnetic (i.e., through-the-air) means.” See Newton’s Telecom Dictionary, 23rd Edition (2009). The General Services Administration Glossary defines telecommunications as “1. any transmission, emission, or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic systems. 2. Any transmission, emission, or reception of signs, signals, writings, images, sounds, or information of any nature by wire, radio, visual, or other electromagnetic systems.” See www.everyspec.com. Other dictionaries provide similarly broad definitions. See, e.g., Webster’s New World Dictionary, 4th Ed. (2007) and Computer Telephone & Electronics Glossary (www.csgnetwork.com).
Other definitions of the term “telecommunications” include the following:
Telecommunications is a general term for a vast array of technologies that send information over distances. Mobile phones, land lines, satellite phones and voice over Internet protocol (VoIP) are all telephony technologies -- just one field of telecommunications. Radio, television and networks are a few more examples of telecommunication.
See http://www.wisegeek.com/what-is-telecommunications.htm.
1. The science and technology of communication at a distance by electronic transmission of impulses, as by telegraph, cable, telephone, radio, or television.
2. The electronic systems used in transmitting messages, as by telegraph, cable, telephone, radio, or television.
See http://www.answers.com/topic/telecommunication.
[T]he transmission of information, as words, sounds, or images, usually over great distances, in the form of electromagnetic signals, as by telegraph, telephone, radio, or television.
See http://dictionary.reference.com/browse/telecommunications.
In light of these definitions, it is clear that the term “telecommunications” covers a broad range of activities and functions, including those discussed and described above with respect to each of the four analyzers (i.e., testing, examining, measuring or analyzing various telecommunications-related radio and microwave signals and transmissions). Moreover, by its terms, the scope of subheading 9030.40, HTSUS, is not limited to apparatus and instruments that can only and exclusively be used for telecommunications. Thus, we interpret the provision to cover such apparatus and instruments that while specifically designed for telecommunications, may also have applications, uses and functions other than telecommunications. Accordingly, we conclude that the subject spectrum analyzers are described by the terms of subheading 9030.40, HTSUS. This logic is consistent with prior CBP rulings. See, e.g., HQ H096888, dated June 8, 2010.
HOLDING:
By application of GRI 1 all four analyzers are classified in heading 9030, HTSUS. By application of GRIs 1 and 6, all four analyzers are properly classified in subheading 9030.40.00, HTSUS, which provides for: “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).” The general, column one duty rate at the time of entry was free.
You are instructed to ALLOW the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.
Sixty days from the date of the decision, the Office International Trade, 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 and Trade Facilitation Division