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HQ 966204




May 29, 2003

CLA-2 RR:CR:GC 966204 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9017.90.00

Port Director
U.S. Customs Service
555 Battery Street
San Francisco, CA. 94111

RE: Protest 2809-02-100891; SmartTool/NEW PRO

Dear Port Director:

This is our decision on protest 2809-02-100891 filed by Hecny Brokerage Services, Inc., on behalf of Wedge Innovations against your action regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of “PCB ASSYs.”

FACTS:

The six entries under protest were filed between November 5, 2001, and January 3, 2002. The entries were liquidated beginning September 20, 2002, through November 15, 2002, and this protest was timely filed on December 16, 2002. The articles at issue are described in the entry materials as “PCB ASSY, SMARTTOOL, V4.05” and “PCB ASSY, PRO3600, W/O SSS.” These articles may be parts for a “SmartTool/NEW PRO” which the importer calls an electronic level. There is no further description of the particular articles imported. In protestant’s “Attachment A,” protestant states “See attachment Illustrations.” However, no illustrations have been submitted.

Protestant describes the SmartTool/NEW PRO as an electronic level to be used to measure angles with respect to a gravity reference. The SmartTool/NEW PRO is used to measure angles of inclination using the earth’s horizontal plane as a reference. Protestant states that the principal use of the device is as an electronic angle measuring product capable of reading all angles through 360 degrees with speed, accuracy and the precision of a digital readout. The SmartTool/NEW PRO also has bubble vials like a traditional level, but the bubble vials are ancillary and only to give the device the more familiar look of a non-electronic level. Protestant states that the SmartTool/ NEW PRO can not be used for drafting or drawing because if the unit is placed on its side the angle measuring sensor does not operate properly.

The articles were entered under subheadings 9015.90.00, HTSUS, as surveying, hydrographic, oceanographic, hydrological, meteorological or geophysical instruments and appliances, excluding compasses; rangefinders; parts and accessories thereof; and 9031.90.90, HTSUS, as parts and accessories of measuring or checking instruments, appliances and machines, not specified elsewhere in this chapter. Customs liquidated the entries under protest under subheading 9017.90.00, HTSUS, as parts and accessories of articles classifiable in subheading 9017.20.80, HTSUS, as other drawing, marking-out or mathematical calculating instruments, other. Protestant believes the articles should be classified in subheading 9015.90.00, HTSUS.

ISSUE:

What is the classification under the HTSUS of the PCB ASSYs?

LAW AND ANALYSIS:

Initially we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. §1514 (c)(3)(A)) and the matters protested are protestable (see 19 U.S.C. §1514 (a)(2) and (5)).

Protests against decisions of the appropriate Customs officers must be in conformity with applicable statutory and regulatory requirements. Under 19 U.S.C. 1514(c)(1), a protest of a decision under subsection (a) of section 1514 must set forth distinctly and specifically each decision as to which a protest is made. United States v. E.H. Bailey & Co., 32 CCPA 89, C.A.D. 291 (1945); United States v. Parksmith Corp., 514 F. 2d 1052, 62 CCPA 76 (1975) and related cases. Additionally, the Customs Regulations require that a protest set forth the nature of, and justification for the objection set forth distinctly and specifically with respect to each decision. 19 CFR 174.13(a)(6).

The scope of review in a protest filed under 19 U.S.C. 1514 is limited to the administrative record. Customs will consider all relevant allegations that are supported by competent evidence. In acting on a protest, however, Customs lacks the legal authority to assume facts and arguments that are not presented and, therefore, not in the official record.

In this case, protest is made against your decision to classify the goods as described above. However, the record is insufficient for this office to make a determination that the classification assigned to the importation is incorrect. The articles actually imported are described as “PCB ASSY, SMARTTOOL, V4.05” and “PCB ASSY, PRO3600, W/O SSS”. This brief description is insufficient to describe for this office what the part looks like or how it operates. The protestant’s “Attachment A” only describes the completed article and not the particular part or parts imported. The illustrations mentioned in the protest have not been submitted. Therefore, protestant has provided no evidence to support its claims, nor is there other evidence of record from which we can independently determine the validity of the claims. Accordingly, there is no basis upon which the protest may be granted.

HOLDING:

The protest should be DENIED.

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.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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