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HQ 967157




September 7, 2004

CLA-2-RR:CR:GC 967157 RSD

CATEGORY: CLASSIFICATION

TARIFF NO: 9014.80.1000

Port Director
U.S. Customs and Border Protection
11099 South La Cienega Blvd.
Los Angeles, CA 90045

RE: Protest 2720-04-100173; fiber optic gyroscopic compass

Dear Port Director:

This is in reference to protest 2720-04-100173, filed on behalf of the Oceans Innovations regarding the classification of the Octans 6000 Fiber Optic Gyroscopic Compass under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The product at issue is known as the Octans 6000 Fiber Optic Gyroscopic Compass. It is a composite appliance that has a gyrocompass and a motion sensor designed for indicating the roll, pitch, heave surge, sway and heading of boats, other sea-going vessels, remotely operated vehicles and autonomous underwater vehicles. In addition to containing gyroscopes, the Octans 6000 has fiber optic components. According to the Protestant, the gyroscopes contained within the Octans 6000 are used to measure the movement of the vessels, while the fiber optics measure the rotation of the gyroscopes. Customs and Border Protection (CBP) liquidated the entry under protest in subheading 9014.80.10, HTSUS, as direction finding compasses, other navigational instruments and appliances, other instruments and appliances, optical instruments. However, the Protestant believes that product should be classified in 9014.80.40, HTSUS, as other navigational instruments and appliances, other instruments and appliances, electrical.

ISSUE:

What is the proper classification of the Octans 6000 fiber optic gyroscopic compass under the HTSUS?

LAW AND ANLYSIS:

Initially we note the entry in question was liquidated on February 13, 2004, and that the protest was timely filed on April 4, 2004 (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 CBP 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. CBP will consider all relevant allegations that are supported by competent evidence. In acting on a protest, however, CBP 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 the Octans 6000 fiber optic gyroscopic compass. This brief description that the Protestant provided is insufficient for this office to determine what the product looks like or how it works. In addition, the protestant’s attachment does not describe what function the different components in the product perform. Although on the CBP Form 19, it is claimed that a brochure for the Octans is available upon request, we have consulted with Protestant’s attorney to obtain additional information regarding the Octans 6000 Gyroscopic Compass. Counsel has advised that no further evidence would be forthcoming at this time. Therefore, protestant has not provided sufficient evidence to support its claims, nor is there other evidence in the record from which we can independently determine the validity of its claims. Accordingly, there is no basis upon which the protest may be granted.

HOLDING:

The protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB 3500-08, June 2002, pp. 18 and 21), you are to mail this decision, together with the CBP 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 CBP personnel, and to the public on the CBP 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,


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