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HQ 959574




December 18, 1996

CLA-2 RR:TC:MM 959574 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 9031.80.00

Port Director
U.S. Customs Service
9901 Pacific Highway
Blaine, WA 98230

RE: Protest 3004-96-100215; Scientific Control Modules, Data Compactors and RF Fanouts; Measuring or Checking Instruments; Denial of Protest for Failure to Provide Evidence in Support of Claim, 19 CFR 174.13(a)(6)

Dear Port Director:

The following is our decision regarding Protest 3004-96-100215, filed against your classification of certain scientific apparatus used in high-energy physics experiments under the Harmonized Tariff Schedule of the United States (HTSUS). The merchandise was entered under subheading 8471.99.15, HTSUS, as automatic data processing units, on December 21, 1994, January 10, 17, and 26, 1995. The entries were liquidated on December 15, 1995, under subheading 9031.80.00, HTSUS, as other measuring and checking instruments and apparatus. The protest was timely filed on March 13, 1996.

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 protest is made. In addition, section 174.13(a)(6) of the Customs Regulations [19 CFR 174.13(a)(6)] require that a protest set forth the nature of, and justification for the objection set forth distinctly and specifically with respect to each decision. The scope of review in a protest filed under 19 U.S.C. 1514 is limited to the administrative record. In acting on a protest 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 scientific apparatus used in high-energy physics experiments in subheading 9031.80.00, HTSUS, as "[m]easuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter . . . : [o]ther instruments, appliances and machines. . . ." You classified this merchandise based upon HQ 952235 (November 4, 1992) and HQ 089391 (February 6, 1992), which held that data recorders and sensors used in measuring systems were measuring instruments of heading 9031, HTSUS, even though they did not perform any actual measuring function themselves. However, protestant has submitted no evidence in support of the claim under heading 8471, HTSUS or why the merchandise is not covered by heading 9031, HTSUS. Heading 8471 falls within section XVI, HTSUS. Legal Note 1(m) to section XVI, HTSUS, excludes articles of chapter 90 (which includes heading 9031) from being classified in either chapter 84 or 85, HTSUS. Even if the exclusion did not apply, protestant has not provided any evidence that the articles met the terms of Legal Note 5(B) to chapter 84, which defines when an article is an automatic data processing unit of heading 8471, HTSUS. There is no other evidence in the protest file from which we can independently assess the validity of protestant's claim. Based on protestant's failure to comply with the requirements of 19 CFR 174.13(a)(6), this protest is DENIED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you should 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 take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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