CLA-2- OT:RR:CTF:TCM H078795 TNA
Port Director, Cleveland Service Port
U.S. Customs and Border Protection
6747 Engle Road Middleburg Heights, OH 44130
RE: Application for Further Review of Protest No: 4198-07-100247; Classification of Agilent Model 86100C Infinium DCA-J Wide Bandwidth Oscilloscope
Dear Port Director:
This is in reference to your correspondence, dated November 11, 2007, forwarding Application for Further Review (“AFR”) of Protest No. 4198-07-100247, timely filed on November 29, 2007, on behalf of Agilent Technologies, Inc. (“Agilent”). The AFR concerns the classification of Model 86100C Infinium DCA-J Wide Bandwidth Oscilloscopes under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise at issue is the Agilent Model 86100C Infinium DCA-J Wide Bandwidth Oscilloscope (“Model 86100C”), a machine for viewing and recording electrical signals. As described by Agilent, the Model 86100C has four functions: a digital communications analyzer with automated eye measurements; a time domain reflectometer for impedance analysis; an oscilloscope with bandwidth in excess of 80 GHz; and a jitter analyzer for electrical and optical signals.
Communications analyzers, such as the subject merchandise’s first function, test communications products such as satellites, using such tools as radio frequencies and microwave radar systems.
Time domain reflectometers, which make up the subject merchandise’s second function, are electronic instruments used to characterize and locate faults in metallic cables such as twisted wire pairs and coaxial cables. They can also be used to locate discontinuities in a connector, printed circuit board, or any other electrical path. They are also used for preventive maintenance of telecommunication lines, for technical surveillance counter-measures, failure analysis of modern high-frequency printed circuit boards whose signal traces emulate transmission lines. In industrial settings, they can be used in situations as different as the testing of integrated circuit packages to measuring liquid levels.
Oscilloscopes, such as the subject merchandise’s third function, are a type of electronic test instrument that allows observation of constantly varying signal voltages, usually as a two-dimensional graph of one or more electrical potential differences using the vertical axis, plotted as a function of time. They are generally used to observe the exact wave shape of an electrical signal.
The subject merchandise’s fourth function is a jitter analyzer. Jitter is the deviation in or displacement of some aspect of the pulses in a high-frequency digital signal. It is the time variation of a periodic signal in both electronics and telecommunications.
The merchandise was entered on August 21, 2007 under subheading 9030.20.1000, HTSUS, which provides for “oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028: Other oscilloscopes and oscillographs.” U.S. Customs and Border Protestion (“CBP”) liquidated the merchandise as entered on October 26, 2007. The importer filed its protest on November 29, 2007, claiming that the correct classification for the merchandise is under subheading 9027.50.40, HTSUS, which provides for “Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters); microtomes; parts and accessories thereof: Other instruments and apparatus using optical radiations (ultraviolet, visible, infrared): other: electrical.”
ISSUE:
Whether Model 86100C oscilloscopes are classified under heading 9207, HTSUS, as “Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters); microtomes; parts and accessories thereof”; or under heading 9030, HTSUS, as “Oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities”?
LAW AND ANALYSIS:
This matter 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. 4198-07-100247 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 point with respect to the same or similar merchandise. Specifically, the Protestant states that CBP has issued conflicting opinions regarding this line of merchandise.
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.
The 2007 HTSUS headings under consideration are the following:
9027 Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters); microtomes; parts and accessories thereof
* * * * * * * * * * * *
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:
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The ENs to heading 9030, HTSUS, state, in pertinent part, the following:
(B) OSCILLOSCOPES, SPECTRUM ANALYSERS AND OTHER INSTRUMENTS AND APPARATUS FOR MEASURING OR CHECKING ELECTRICAL QUANTITIES
Oscilloscopes and oscillographs are used respectively for observing or recording rapid variations of an electrical quantity (voltage, current, etc.). The instruments may be divided into three main categories:
(a) Duddell oscillographs, in which a coil, usually consisting of a loop of taut wire with mirrors attached, moves in the field of an electro magnet. The periodic phenomenon under study can be observed directly on a sheet of frosted glass, or recorded on a photographic tape.
(b) Soft iron and graver type oscillographs, with a coil acting on a strip of soft iron placed in a constant field. A lightweight rod, pointed at one end, is fixed to the strip and traces the phenomenon (e.g., by cutting a coated cellulose acetate tape).
(c) Cathode ray oscilloscopes and oscillographs; these operate by recording how a cathode ray beam is deflected by electrostatic or electro magnetic forces. These instruments, which may be in one or more parts, consist essentially of the cathode ray tube, feeding devices and transformers, amplifiers, a sweeping or scanning system and other auxiliary devices and, sometimes, an electronic switch. Oscilloscopes with a memory, used to examine isolated rapid transient phenomena, are equipped with either a cathode ray memory tube or a numeric memory associated with a cathode ray tube. In the first type, the image of the signal is captured and maintained on the cathode ray tube. In the second type, the signal is recorded in the memory and can be retrieved at will to be viewed on the screen….
The heading covers transient phenomena recorders which are apparatus designed to capture a signal and to record it with a view to transmitting it later, in an appropriate form, onto a display apparatus (television monitor, for example). “Logic analysers”, which are apparatus used to examine electrical circuits consisting for the most part of semiconductor devices, are also classified here…
Instruments and apparatus for measuring or checking electrical quantities may be indicating or recording types…
The main types of electrical measurements are:
(I) Measurement of electric currents. This is carried out, in particular, by means of galvanometers or amperemeters (ammeters).
(II) Voltage measurement, by voltmeters, potentiometers, electrometers, etc. The electrometers used for measuring very high voltages are electrostatic; they differ from the usual type of voltmeter in that they are fitted with spheres or plates held on insulating pillars.
(III) Measurement of resistance and conductivity, by means of ohmmeters or measuring bridges, in particular.
(IV) Measurement of power by means of wattmeters.
(V) Measurement of capacitance and inductance, effected by means of measuring bridges, and expressed in farads or henrys.
(VI) Measurement of frequencies, by means of frequency meters graduated in hertz (cycles per second).
(VII) Measurement of wavelengths or radio frequencies by wavemeters, or slotted line or slotted waveguideinstruments.
(VIII) Measurement of phase angles or power factors, carried out with phase meters, calibrated in power factors (cos phi).
(IX) Measurement of the ratios of two electrical quantities by ratiometers.
(X) Measurement of magnetic fields or magnetic fluxes, effected with galvanometers or fluxmeters.
(XI) Measurement of the electrical or magnetic properties of materials, carried out with hysteresis testers, permeameters or similar instruments.
(XII) Testing of synchronism, by means of synchroscopes, instruments for indicating the phase relation and difference in frequency between two periodic phenomena. Such instruments can be recognised by the fact that their dials bear the indications “Fast” and “Slow” (with corresponding arrows).
(XIII) Measurement and recording of rapid variations of electrical quantities by means of the oscilloscopes or oscillographs described above.
Agilent argues in favor of classification in subheading 9027.50.40, HTSUS, as an “other” instrument or apparatus using optical radiations such as ultraviolet, visible, or infrared. Before we assess the merits of the classification of the subject merchandise at the subheading level, we must assess classification at the heading level. An examination of heading 9027, HTSUS, shows that the terms of the heading do not cover the subject merchandise.
Heading 9027, HTSUS, covers such instruments as spectrometers, colorimeters, photometers, and luxmeters, which cannot be said to cover the subject merchandise. In particular, the rulings to which Agilent cites classify merchandise such as LAN testers, Optical Sampling Modules, fiber optic test equipment, and a lightwave measurement system under heading 9027, HTSUS, as instruments and apparatus for measuring or checking quantities of heat, sound or light. See HQ 966722, dated July 29, 2004; NY H89812, dated March 27, 2002; HQ 966208, dated December 18, 2003; HQ 965639, dated September 12, 2002. In those rulings, the primary, if not the only, function of the merchandise was to check or test optical components. In the present case, by contrast, one function of the subject merchandise is a jitter analyzer for both electrical and optical signals. Although we acknowledge that one function of the jitter analyzer measures or checks a quantity of light, this one function cannot be said to be the dominant feature of the subject merchandise. Neither can the Model 86100C’s other functions be said to test or check quantities of light, heat or sound. To the contrary, the device’s time domain reflectometer is not used for optical fibers; the equivalent device for optical fiber is an optical time-domain reflectometer. In addition, the Model 86100C’s multiple functions are the reasons consumers buy it.
In support of its argument that the subject merchandise is classified in heading 9027, HTSUS, Agilent cites to prior CBP rulings that classify merchandise in this heading. In HQ 966722, dated July 29, 2004, for example, CBP classified electrical sampling modules under subheading 9027.50.40, HTSUS. Electric sampling modules are distinguishable from the present merchandise in that they are designed to analyze optical line output- that is, they measure electrical signals rather than recording and displaying them as oscilloscopes do. Furthermore, these sampling modules are designed to be used with oscilloscopes, not as oscilloscopes themselves. As a result, we find that the terms of heading 9027, HTSUS, do not cover the subject merchandise.
Heading 9030, HTSUS, covers oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities. Merchandise, such as oscilloscopes, that is used to observe or record rapid variations of an electrical quantity such as voltage and current is classified within this heading. See EN 90.30. The subject merchandise allows observation of constantly varying signal voltages. It also tests jitter, which is the deviation in high-frequency digital signal, as well as using signals such as radio frequency to test communications products and electrical signals to test cables and circuit board. As a result, the terms of heading 9030, HTSUS, cover the subject merchandise.
Furthermore, CBP has classified similar merchandise in heading 9030, HTSUS. In NY N011222, dated June 11, 2007, to which Agilent cites, CBP classified the “infiniium SCA-J Agilent 86100C Wide-Bandwidth Oscilloscope” in subheading 9030.20.1000. This machine is indistinguishable from the subject merchandise and even contains the same name and model number. Agilent’s attempts to distinguish this ruling are unpersuasive. As a result, the subject merchandise is classified in heading 9030, HTSUS.
With respect to specific subheadings within heading 9030, HTSUS, Agilent, as an alternative to classification in heading 9027, HTSUS, proposes classification in subheading 9030.20.05, as oscilloscopes “specially designed for telecommunications.” Agilent argues that the subject merchandise should be classified here because it is designed to test telecommunications/network components. We recognize that one of the merchandise’s functions, its digital communications analyzer, is designed to test telecommunications products. The merchandise’s other functions, however, can be used in a range of settings that include telecommunications but are not limited to this industry. For example, the Model 86100C is called an oscilloscope, and its oscilloscope function can be used to record any signals. Its jitter function can test the jitter in high-frequency digital signal that is used in both electronics and telecommunications. Thus, the Model 86100C cannot be said to be specially designed for telecommunications. As a result, the Agilent Model 86100C Infinium DCA Wide Bandwidth Oscilloscope is classified in subheading 9030.20.10, HTSUS, as “other oscilloscopes and oscillographs.”
HOLDING:
By application of GRI 1, the Agilent Model 86100C Infinium DCA Wide Bandwidth Oscilloscope is classified in heading 9030, HTSUS, and specifically under subheading 9030.20.1000, HTSUS, which provides for: “oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028: Other oscilloscopes and oscillographs.” The general, column one duty rate at the time of entry was 1.7% ad valorem.
You are instructed to DENY 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. 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 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