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HQ 956808

OCTOBER 26, 1994

CLA-2:CO:R:C:M 956808 JAS


TARIFF NO.: 8105.10.30

District Director of Customs
200 St. Paul Street, 28th. Floor
Baltimore, MD 21202

RE: PRD 1303-93-100034; Alloy of Cobalt, Unwrought Cobalt; Cobalt Waste and Scrap, Subheading 8105.10.90; Denial of Protest for Failure to Provide Evidence in Support of Claim, 19 CFR 174.13(a)(6)

Dear Sir:

This is our decision on Protest No. 1303-93-100034, filed against your action in classifying certain cobalt material. The entry was liquidated on November 27, 1992, and this protest timely filed on February 19, 1993.

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 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. In addition, 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 properly made against your decision to liquidate the entry in question under subheading 8105.10.30, Harmonized Tariff Schedule of the United States (HTSUS), as unwrought cobalt alloys. However, protestant has submitted no evidence in support of the claim that the material is waste and - 2 -
scrap under subheading 8108.10.90, HTSUS, nor is there other evidence of record from which we can independently determine the validity of the claim. In fact, the invoice description of this material confirms it is an alloy of cobalt, as defined in Chapter 81, Additional U.S. Note 1, HTSUS, a fact protestant does not contest.

Based on protestant's failure to comply with the requirements of 19 CFR 174.13(a)(6), 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 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.


John Durant, Director
Commercial Rulings Division

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