HQ 962897

November 24, 1999

CLA-2 RR:CR:GC 962897 HMC

CATEGORY: Classification

TARIFF NO.: 9030.40.00

Port Director of Customs

511 NW. Broadway

Rm. 198

Portland, OR 97209

RE: Protest 2904-99-100004; Signal Generators; Other Instruments and
Apparatus, Specially Designed for Telecommunications

Dear Port Director:

This is our decision on Protest 2904-99-100004, filed against your
classification of signal generators, models SME03, SMIQ02, SMIQ03,
R3561L, imported by Tektronix, Inc. The entries under protest were
liquidated between October 30, 1998, and January 15, 1999, and this
protest timely filed on January 19, 1999.

FACTS:

The merchandise under protest consists of signal generators, which have
been the subject of New York (NY) and Headquarters (HQ) ruling letters.
In NY C86285, dated April 30, 1998, 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 961882, reclassifying the signal generators under
subheading 9030.89.00, HTSUS, and revoking NY C86285. The facts provided
in HQ 961882 are as follows:

> The merchandise in issue, signal generators or function generators,
> are 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. These signal
> generators perform no independent measuring or checking function;
> rather, other instruments utilize the signals they produce to measure
> or check the performance of various electronic systems.

In a letter dated January 19, 1999, the protestant provided new
information which states 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 protestant explains that 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 entries were liquidated with classification under subheading
9030.89.00, HTSUS, as other instruments and apparatus. Protestant
contends that the merchandise is more specifically classifiable under
subheading 9030.40.00, HTSUS.

The 1997 and 1998 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 961882, 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 961888, dated August 3,
1993, 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]{.underline} provision is
[generally]{.underline} 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.

Protestant has provided sufficient evidence to show that the merchandise
is specially designed for telecommunications. Protestant has shown that
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, pursuant to 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.
103-182, 107 Stat. 2057 (1993)), appropriate action will be taken to
revoke HQ 961882 and HQ 961888.

HOLDING:

The signal generators, models SME03, SMIQ02, SMIQ03, R3561L are
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)."

This protest should be ALLOWED. In accordance with Section 3A(11)(b) of
Customs Directive 099 3550‑065, dated August 4, 1993, Subject: Revised
Protest Directive, 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 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 of Regulations and
Rulings will make the decision available to Customs personnel, and to
the public on the Customs Home Page on the World Wide Web at
www.customs.ustreas.gov, by means of the Freedom of Information Act, and
other methods of public distribution.

Sincerely,

John Durant, Director

Commercial Rulings Division