HQ 955054: Stone Electronics, Ltd.; Divelink Underwater Communicator; Ultrasonic Upper Side Band Frequency; Voice Actuated; Electrical Machines and Apparatus, N.S.P.F.; HQ 088599

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

     


 

                            HQ 955054
                                                               
                         January 26, 1994

CLA-2 CO:R:C:M  955054 MBR

CATEGORY:  Classification

TARIFF NO.:  8543.80.90

Mr. Dale G. Vander Yacht
Border Brokerage Company
P.O. Box 3549
Blaine, Washington 98231

RE:  Stone Electronics, Ltd.; Divelink Underwater Communicator;
     Ultrasonic Upper Side Band Frequency; Voice Actuated;
     Electrical Machines and Apparatus, N.S.P.F.; HQ 088599

Dear Mr. Vander Yacht:

     This is in reply to your letter of August 26, 1993, on behalf
of Stone Electronics, Ltd., requesting classification of the
"Divelink Underwater Communicator," under the Harmonized Tariff
Schedule of the United States (HTSUS).

FACTS:

     The "Divelink Underwater Communicator" ("Divelink") is a voice
actuated ultrasonic transmission/reception device designed for
underwater communication between scuba divers.  The Divelink
consists of a communicator headpiece, facemask strap, mouthpiece
with microphone and a rechargeable battery pack.  

     To communicate, the scuba diver speaks into the mouthpiece
(which contains a microphone).  The voice signal is converted to
ultrasonic waves and transmitted via the headpiece.  The ultrasonic
waves emanate in 360 degrees from the transmitter using  the water
as the transmission carrier medium.  The Ultrasonic waves are
similarly received by another diver's headpiece and converted to
audible signals.  The Divelink does not operate by electromagnetic
(radio) waves.

ISSUE:

     What is the classification of the Divelink under the
Harmonized Tariff Schedule of the United States (HTSUS)?



                               -2-

LAW AND ANALYSIS:

     The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule.  GRI 1
states, in pertinent part:

     ...classification shall be determined according to the terms 
    of the headings and any relative section or chapter notes...

     Radiotelephony, radiotelegraphy, radiobroadcasting and
television, are all specific forms of electromagnetic radiation. 
"The McGraw-Hill Encyclopedia of Science & Technology, 6th Edition
(1987), page 154, defines "Electromagnetic radiation" as follows:

     Energy transmitted through space or through a material
     medium in the form of electromagnetic waves.  The term
     can also refer to the emission and propagation of such
     energy.  Whenever an electric charge oscillates or is
     accelerated, a disturbance characterized by the existence
     of electric and magnetic fields propagates outward from
     it.  This disturbance is called an electromagnetic wave. 
     The frequency range of such waves is tremendous, as is
     shown by the electromagnetic spectrum in the table. 
     (Emphasis added).

     McGraw-Hill also tells us that the electromagnetic waves
emitted from a source are oscillatory in character and are
described in terms of their frequency of oscillation.  Local
telephone lines (not using carrier systems) carry electromagnetic
waves with frequencies of about 200-4000 Hz.  Medium-wave radio
uses frequencies of the order of 10(6th power) Hz, whereas
television utilizes frequencies of the order of 10(8th power) Hz. 

     Webster's New World Dictionary Third College Edition (1988),
defines "Ultrasonic" as follows: "designating or of a frequency of
mechanical vibrations above the range audible to the human ear,
i.e., above 20,000 vibrations per second."  However, these
inaudible vibrations are not an electrical charge.  Therefore,
ultrasonic vibrations are not electromagnetic or radio waves.  See
also HQ 088599, dated May 2, 1991, in which "infrared"
electromagnetic waves were distinguished from "radio"
electromagnetic waves.

     The Divelink consists of four components which are
interconnected to provide the function of ultrasonic transmission
and reception.  Section XVI, Legal Note 4 states as follows:

     Where a machine (including a combination of machines) consists
     of individual components (whether separate or interconnected
     by piping, by transmission devices, by electric cables or by
     other devices) intended to contribute together to a clearly
     defined function covered by one of the headings in chapter 84

                               -3-

     or chapter 85, then the whole falls to be classified in the
     heading appropriate to that function.

     There is no specific heading in chapter 84 or chapter 85 that
describes the function that the Divelink performs.  Therefore,
since there is no more specific subheading for under water
ultrasonic transceiver systems, the instant merchandise is
classifiable in subheading 8543.80.90, HTSUS, which provides for:
"[e]lectrical machines and apparatus, having individual functions,
not specified or included elsewhere in this chapter: [o]ther
machines and apparatus: [o]ther."

HOLDING:

     The "Divelink Underwater Communicator" is classifiable in
subheading 8543.80.90, HTSUS, which provides for: "[e]lectrical
machines and apparatus, having individual functions, not specified
or included elsewhere in this chapter: [o]ther machines and
apparatus: [o]ther."  The rate of duty is 3.9% ad valorem.

     The instant merchandise may be eligible for the North American
Free Trade Agreement, if the provisions thereof are met.

                              Sincerely,




                              John Durant, Director