United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2001 HQ Rulings > HQ 964723 - HQ 964837 > HQ 964745

Previous Ruling Next Ruling
HQ 964745

JAN 2 2001

CLA-2-42: RR: CR:TE 964745 JFS


Port Director
Port of New York
C/O Chief, Residual liquidation and Protest Branch 6 World Trade Center
Room 761
New York, New York 10048-0945

RE: Request for Further Review of Protest Number 1001-98-102073

Dear Sir or Madam:

The above-referenced protest was forwarded to this office for further review. We have considered the protest and our decision follows.


The record indicates that the subject protest was timely filed on June 23, 1998, by Grunfeld, Desiderio, Lebowitz & Silverman, LLP, on behalf of Judy-Philippine, Inc., in connection with an entry filed at your port. The Protestant disputes

Customs’ classification, liquidation and assessment of supplemental duty with respect to the . . . referenced entry. The subject merchandise, water resistant anoraks, should have been liquidated as entered, within subheading 6202.93.45 HTSUSA, and 6204.63.30 HTSUSA, both dutiable at 7.4% ad val.

The Protestant further states "[p]lease withhold action on this protest pending a submission detailing and supporting our claims.” Your office has advised us that the Protestant failed to provide the additional submission detailing and supporting their claims.

The classification made by the Protestant at the time of entry was for water-resistant anoraks, 6202.93.4500, HTSUSA and 6204.63.3000, HTSUSA. Customs reclassified the entry under subheadings 6202.93.5011, HTSUSA, and 6204.63.3510, HTSUSA. The garments were reclassified because they did not meet the criteria necessary to be considered water-resistant for classification purposes. Testing by the Customs lab confirmed that the garments were not water-resistant.


Whether the evidence presented by the Protestant creates a sufficient basis upon which relief may be granted?


Protestant's request for further review may be disposed of summarily. The scope of review is limited to the administrative record. The Protestant’s initial protest did not contain any evidence to support their claim that the reclassification by Customs was improper. The Protestant also failed to provide the additional submission “detailing and supporting” their claims. Thus, there is no evidence in the record to support the Protestant’s claim that the reclassification of the garments was improper.

To comply with the mandatory provisions of 19 U. S. C. §1514 (c) (1), a protest of a decision must set forth distinctly and specifically each decision as to which protest is made. See generally, United States v. Parksmith Corp., 62 C.C.P.A. 76, 514 F. 2d 1052, C.A.D. 1149 (1975); American Commerce Co. v. United States, 42 Cust. Ct. 98, 173 F. Supp. 812, C.D. 2072 (1959); United States v. E. H. Bailey & Co., 32 C.C.P.A. 89, C.A.D. 291 (1944). In addition, the Customs regulations require that a protest set forth "[t]he nature of, and justification for the objection set forth distinctly and specifically with respect to each category, payment, claim, decision, or refusal." 19 C.F.R. §174.13 (a) (6). General allegations, without more, are insufficient. While Customs will consider all relevant claims that are supported by competent evidence, it lacks the legal authority to assume facts and arguments that are not presented and, therefore, not in the official record.

Therefore, we find that there is no basis upon which relief can be granted. The protest should be denied in full for failure to comply with the requirements of 19 U.S.C. 1514 (c) (1) and 19 CFR 174.13 (a) (6).

Additionally, under 28 U.S.C. § 2639 (a) (1) (1994), Customs enjoys a statutory presumption of correctness. Thus an importer has the burden to prove by a preponderance of the evidence that a Customs decision was incorrect. Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998). Furthermore, “[i]t is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” Aluminum Company of America v. United States, 60 C.C.P.A. 148, 151, 477 f.2d 1396, 1398 (1973). The Protestant has failed to present any evidence to rebut the presumption that the lab results and the classification made by Customs was correct. Thus the protest should be denied on the merits.


The application for further review should not have been approved and the protest should be denied because the protestant has not complied with the requirements of 19 U.S.C. §1514 (c) (1) and 19 C.F.R. §174.13 (a) (6). See HQ 227411, dated May 29, 1997, and HQ 223267, dated June 20, 1991. See also, Koike Aronson, Inc. v. U.S., 165 F.3d 906 (Fed. Cir., January 5, 1999).

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision. Since there are no reliquidations involved in this protest, you should be able to accomplish this direction prior to the 60 day period.

Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act and other public access channels


John Durant, Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: