CLA-2 OT:RR:CTF:TCM H096888 TNA
Mr. Edward F. Juliano, Jr., Esq.
Attorney at Law
1050 Winter Street, Suite 1000
Waltham, MA 02451
RE: Tariff classification of microwave analog signal generator
Dear Mr. Juliano:
This is in response to your request on behalf of your client, Agilent Technologies, Inc., submitted on December 2, 2009, to U.S. Customs and Border Protection (“CBP”), National Commodity Specialist Division, for a binding ruling on the tariff classification of a microwave analog signal generator under the Harmonized Tariff Schedule of the United States (HTSUS). Your ruling request was forwarded to this office for a response. In reaching our decision, we have taken into account arguments you presented to us during a conference in our office on May 26, 2010, as well as supplemental submissions dated April 12, 2010, and January 18, 2010.
FACTS:
The subject merchandise consists of the E8257D-UNY model microwave analog signal generator. The E8257D-UNY is designed to operate as a signal source in numerous tests of telecommunications products including satellites, phase noise, noise figure, SONET, level accuracy, jitter clock, adjacent channel selectivity, and output power tests. It generates standard levels of radio frequency (“RF”), output power with amplitude (“AM”), frequency (“FM”), phase (“PM”), and pulse modulation. The E8257D-UNY is similar to the earlier model E8257D-PSG model and performs similar functions. Research on Agilent’s website shows that the E8257D-PSG model is designed to test advanced RF and microwave radar systems, communications systems, and control systems. The E8257D-UNY is designed to improve on that standard.
However, the E8257-UNY is not identical to the E8257D-PSG because it has a greater range and improved phase noise testing. It is also physically different in that it has different sub-assemblies within the product that have been changed to conform to hazardous substance requirements now in effect in Europe. For example, solder and components containing lead have been replaced with other substances and components that comply with the new laws.
ISSUE:
Whether a microwave analog signal generator should be classified in subheading 9030.40.00, HTSUS, as an apparatus specifically designed for telecommunications, or under subheading 9030.89.01, HTSUS, as an other instrument or apparatus?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in 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 2010 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
There is no dispute at the heading level that the subject merchandise should be classified in heading 9030, HTSUS. HQ 961882, dated August 3, 1998, for example, stated that EN 90.30 suggests that “the heading encompasses not only instruments and apparatus which directly perform 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.”
Furthermore, United States v. Corning Glass Works, 66 C.C.P.A. 25; 586 F.2d 822; 1978 CCPA LEXIS 219; C.A.D. 1216 (1978), considered whether ampul inspection machines were measuring or checking instruments under a nearly identical provision of the Tariff Schedules of the United States (TSUS), the HTSUS predecessor tariff code. The Court recited its understanding of the common meaning of the term “checking” and concluded it encompasses machines that carry out steps in a process for inspecting ampuls to determine whether they conform to an imperfection-free standard. Limiting the provision to devices that actually measure or verify the accuracy of a measurement, the Court concluded, improperly renders “checking” superfluous. In HQ 961882, we found this decision instructive in determining the scope of heading 9030, HTSUS, particularly when read in conjunction with the referenced ENs. See also HQ 954856, dated September 10, 1993, and cases cited therein. For these reasons, the signal generators at issue are provided for in heading 9030, HTSUS. Subsequent CBP rulings have consistently followed this reasoning. See, e.g., HQ 963266, dated January 27, 2000.
At issue in the present case is the six-digit subheading, and whether the subject merchandise can be said to be “designed for telecommunications” such that it may be classified in subheading 9030.40, HTSUS. Neither the relevant headings of the HTSUS nor the relevant ENs define the term “telecommunications,” therefore, CBP is permitted to 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).
You argue that the E8257D-UNY should be classified in subheading 9030.40.00, HTSUS, as being “specifically designed for telecommunications,” because it is designed to test telecommunications systems, such as satellites, which transmit radio waves and microwaves at particular frequencies. Furthermore, in our conference you discussed that the E8257D-UNY’s other capabilities, such as radar testing, are also telecommunications functions because radar technology has evolved to the point where it uses microwave transmitters and receivers which are then converted into high-speed data transmissions. Thus, you argue that radar technology has evolved into imaging and communication technology, and the subject signal generator tests these data transmissions. In all of these systems, you argue that the manner of transmission and what they transmit is telecommunications, and as a result, the E8257D-UNY, which is designed to test these systems is “designed for telecommunications” within the meaning of subheading 9030.40, HTSUS. The E82570-UNY is also specially designed to conduct specific tests of telecommunications products, including phase noise, level accuracy, jitter clock, and adjacent channel selectivity, among other things.
Although signal generators generally perform no independent measuring or checking function, other instruments utilize the signals they produce to measure or check the performance of various electronic systems. CBP has consistently classified similar products in subheading 9030.40.00, HTSUS. See e.g., NY R02562, dated October 5, 2005; NY R02274, dated July 26, 2005; HQ 966560, dated May 17, 2004; and HQ 963266, dated January 27, 2000.
Furthermore, given the evolution in technology in radar and the E8257D-UNY’s other capabilities into telecommunications functions, we agree that the subject merchandise is specifically designed for telecommunications. The definitions of the term cited above are broad enough to encompass the functions of the subject merchandise. As a result, the E8257D-UNY is classified in subheading 9030.40.00, HTSUS, as an “Other instrument and apparatus, specially designed for telecommunications.”
HOLDING:
By application of GRI 1 and 6, the microwave analog signal generator is classified in heading 9030, HTSUS, and specifically under 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 is free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch