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HQ 089291


September 30, 1991

CLA-2 CO:R:C:M 089291 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6404.11.20

District Director
United States Customs Service
555 Battery Street
P.O. Box 2450
San Francisco CA 94126

RE: Protest No. 2809-91-100129; sports footwear; men's sneakers with uppers of leather and textiles and soles of plastics or Heading 6403; Heading 6404

Dear District Director:

This is our decision on Application for Further Review of protest No. 2809-91-100129, dated January 24, 1991. The issue presented is whether various styles of men's footwear are properly classified in subheading 6404.11.2030, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for footwear with outer soles of rubber or plastics, sports footwear, having uppers of which over 50 percent of the external surface area (including any leather accessories or reinforcements such as those mentioned in note 4(a) to this chapter) is leather, for men. Counsel for the protestant claims the footwear should be classified in subheading 6403.19.45, HTSUSA, which provides for footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, sports footwear, other, for men, youths and boys, other.

Protests against decisions of the appropriate Customs officers must be in conformity with applicable statutory and regulatory requirements. Under 19 U.S.C. Section 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. See, United States v. Parksmith Corp., 514 F.2d 1052, 62 CCPA 76 (1975); American Commerce Co. v. United States, 173 F. Supp. 812 (Cust. Ct, 1959); United States v. E.H. Bailey & Co., 32 CCPA 89, C.A.D. 291 (1945). In addition, section 174.13 (a)(6) of the Customs Regulations requires that a protest contain 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. 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, the protest stated that detailed legal arguments would be submitted. Despite numerous requests by Customs, samples of the footwear and the above mentioned legal arguments were never submitted by the protestant. Therefore, protestant has submitted no evidence in support of his claim, nor is there other evidence of record from which we can independently determine the validity of the claim.

Based on protestant's failure to comply with the requirements of 19 U.S.C. 1514(c)(1) and 19 CFR 174.13(a)(6), this protest should be denied. A copy of this decision should be attached to the Customs Form 19 and mailed to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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