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HQ 962960




May 2, 2000

CLA-2 RR:CR:GC 962960 HMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.00

Port Director of Customs
111 W. Huron Street
Buffalo, NY 14202

RE: Protest 0901-98-100264; Koala Counters; Toys Representing Animals or Non-Human Creatures

Dear Port Director:

This is our decision on Protest 0901-98-100264, filed against your decision concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of "Koala Counters." The articles were classified under subheading 9503.49.00, which provides for toys representing animals or non-human creatures. Protestant states that there is no other use for these goods other than to demonstrate mathematical principles. Because they are imported by educational institutions and cannot be purchased for use as toys, the protestant contends that the Koala Counters are properly classified under subheading 9023.00.00, HTSUS, as apparatus for demonstrational purposes.

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. 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, 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. However, after our written request for evidence, dated March 29, 2000, protestant has submitted no evidence in support of this claim, nor is there other evidence of record from which we can independently determine the validity of the claim.

HOLDING:

Based on the protestant's failure to comply with the requirements of 19 CFR 174.13 (a)(6), this protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to 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 make the decision available to Customs personnel, and to the 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 methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division


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