HQ 0224662 - Protest 5201-92-100229; motherboards; description on invoice; 19 CFR 141.86(a)(3); 19 CFR 142.6(l); Subheading 8471.91.00; Subheading 8473.30.40; weight of affidavit. - United States International Trade Commision Rulings

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HQ 224662

April 1, 1994

ENT-1-01-CO:R:C:E 224662 AJS

CATEGORY: ENTRY

District Director of Customs
U.S. Customs Service
77 S.E. 5th Street
Miami, Fla 33131

RE: Protest 5201-92-100229; motherboards; description on invoice; 19 CFR 141.86(a)(3); 19 CFR 142.6(l); Subheading 8471.91.00; Subheading 8473.30.40; weight of affidavit.

Dear District Director:

This is our decision in protest number 5201-92-100229, dated April 10, 1992, concerning mainboards or motherboards.

FACTS:

The subject motherboards were invoiced as "286-20 main board w/dram" or "286-20 mother board". The protestant claims that the subject boards do not contain a central processing unit (CPU). The subject boards were entered under subheading 8473.30.40, Harmonized Tariff Schedule of the United States (HTSUS), which provides for "parts and accessories of the machines under heading 8471: not incorporating a cathode ray tube." The boards were rated advanced from the duty-free parts provision to the provision for "other: digital processing units" within subheading 8471.91.00, HTSUS.

Invoice 10595 of November 4, 1991, indicates that a 286-20 motherboard is priced at $60.00 per unit. Invoice 10621 of November 30, 1991, indicates that a 286-20 motherboard without a CPU is priced at $58.00. Another unnumbered invoice dated October of 1991 indicates that 286-20 CPU is priced at $12.00 per unit. Invoice 10575, which relates to the entry forwarded to this office, indicates that a 286-20 motherboard w/dram is priced at $89.60. Counsel for the protestant asserts that this last price difference is due to the price of the dram and not the inclusion of a CPU.

ISSUE:

Whether the subject boards are properly described on their invoices.

What is the proper classification of the subject boards.

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed pursuant to 19 U.S.C. 1514(c)(2)(A). Two of the subject entries were liquidated on 1/10/92, and this protest was filed on 4/3/92. One of the entries on the Customs Form 19 was not liquidated and is thus not protestable at this time.
We also note that the issue at protest is protestable. The liquidation of an entry is protestable pursuant to section

19 CFR 141.86(a)(3) provides that each invoice of imported merchandise shall set forth a detailed description of the merchandise including the name by which each item is known. 19 CFR 142.6(1) states that a commercial invoice shall contain an adequate description of the merchandise.
The subject merchandise was invoiced as a "main board" or "mother board". As the protestant correctly notes, these types of boards are classified within subheading 8471.91.00, HTSUS, or within subheading 8473.30.40, HTSUS, if the boards lack a CPU. HQ 083957 (July 11, 1989). The protestant previously invoiced motherboards and mainboards as without a CPU if that was, in fact, the case on various importations between May of 1991 and February of 1993. Consequently, the invoice description of a board stating it to be a "main board" or "mother board" would be one containing a CPU. Furthermore, in our view merchandise invoiced as a "motherboard" would by definition be considered to possess a CPU. See A. Freedman, The Computer Glossary, p. 468 (4th ed. 1988). Therefore, the subject boards were inadequately described on the invoice to support the asserted classification under subheading 8473.30.40, HTSUS.

19 CFR 141.89(a) states that a invoice for machine parts shall contain a statement specifying the kind of machine for which the parts are intended, or if this is not known to the shipper, the kinds of machines for which the parts are suitable. Therefore, an invoice for a motherboard without a CPU should also specify the kind of machine for which the motherboard is intended. For example, an invoice stating "286-20 motherboard w/o a CPU, a part for the machines of heading 8471" would correctly describe the merchandise as a motherboard without a CPU.

The protestant's Vice President submitted an affidavit stating that the subject boards did not in fact contain a CPU. In order for statements in an affidavit to be entitled to any weight, they must be within the knowledge of the affiant, related to the merchandise or the issue involved, and supported by factual information. R.F. Sturm, Customs Law and Administration, sect. 46.3, 17 (3rd ed. 1982); See also Sam Yeung Co. v. United States, 40 Cust Ct. 871, A.R.D. 84 (1958). No factual information was initially submitted with the protest to support the claim made in the affidavit concerning the presence of a CPU. Therefore, we did not initially accord any weight to the subject affidavit.

Counsel for the protestant subsequently submitted additional information to this office in support of the Vice President's affidavit. For instance, invoices were submitted indicating that 286-20 motherboards without a CPU were priced at either $58 or $60 during the relevant time period, and that a price difference of approximately $12.00 should exist between a 286-20 motherboard with a CPU and one without a CPU. Therefore, a 286-20 motherboard with CPU would be priced at approximately $70 or $ 72. The motherboards in question are not priced in this range. Consequently, based on the documentary evidence and the supporting affidavit, we conclude that the subject boards did not in fact contain a CPU. Thus, these boards are classifiable within subheading 8473.30.40, HTSUS.

The protestant also argues that the appraisement was erroneous as the result of a mistake of fact or clerical error but fails to identify any facts in support of that argument. In view of our decision with respect to the classification issue, together with that failure to develop an argument on the alleged erroneous appraisement, we do not address that issue.

HOLDING:

The protest is granted. The subject boards are classifiable within subheading 8473.30.40, HTSUS, and thus duty-free. However, the boards were not invoiced properly. Motherboards or mainboards without a CPU should be invoiced as such. Customs was initially correct in classifying the subject boards as invoiced within subheading 8471.91.00, HTSUS.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed with Customs Form 19, by your office to the protestant no
later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Ruling Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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