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HQ 964564




March 19, 2001

CLA-2-42: RR: CR:TE 964564 JFS

Category: CLASSIFICATION VALUATION

Port Director
Port of Denver
4735 Oakland Street
Denver, Colorado 80239

RE: Protest with Application for Further Review, Protest Number 3307-00-100024; Valuation of Athletic Footwear Possessing a Foxing Like Band.

Dear Sir:

This letter is in response to protest number 3307-00-100024 with application for further review, dated May 4, 2000, and timely filed by James M. Allen, LLC, on behalf of Team Shoe, Inc. The request concerns the valuation and classification under Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of athletic footwear. The Protestant did not request a conference.

FACTS:

This protest involves five entries of essentially the same footwear. The Protestant raises two issues, the first of which is a value issue relating to one of the five entries (3307-110-04621735). The other issue is a classification issue and it applies to all five of the entries (3307-110-04621735 above, 3307-110-0462154-5, 3307-110-04619804, 3307-110-04547146, and 3307-110-04612023).

The value question is whether the footwear was properly appraised by Customs using transaction value of identical or similar merchandise under 19 U.S.C. § 1401a(c) instead of transaction value (19 U.S.C. § 1401a(b)) as claimed by the Protestant. The footwear was entered under subheading 6404.19.40, HTSUSA, which provides for footwear that is not over $3 per pair. However, Customs determined that the footwear was identical to the merchandise in the other four entries which were entered as having a value of $3 or more per pair. Customs reclassified the footwear accordingly.

As to all five entries, the Protestant entered the footwear under subheading 6404.19.60, HTSUSA, which provides for, among other things, footwear with outer soles of rubber or plastics, uppers of textile materials, not athletic footwear. Customs, based on a representative sample, reclassified the footwear under subheading 6404.11.70, HTSUSA, which provides for athletic footwear. The Protestant, in support of its protest, argued the following:

With regard to the entry numbers 110/04621735, 110/04619804, 110/04547146, 110/04621545, and 110/04612023, the importer/buyer protests the reclassification of the merchandise in question, and asserts that such reclassification is improper given previous classifications on entries into this port.

The Protestant provided no further argument in support of the decision by Customs to reclassify the footwear.

ISSUES:

1. As to entry 3307-110-04621735, did Customs properly determine the value of the footwear?

2. As to all five of the entries, did the evidence presented create a sufficient basis upon which to determine that Customs misclassified the merchandise?

LAW AND ANALYSIS:

ISSUE 1. As to entry 3307-110-04621735, did Customs properly determine the value of the footwear?

Merchandise imported into the United States is appraised in accordance with section 402 of the Tariff Act of 1930, as amended by the Trade agreements Act of 1979, (TAA; 19 U.S.C. § 1401a). The preferred method of appraisement is transaction value, which is defined as the “price actually paid or payable for merchandise when sold for exportation to the United States,” plus certain enumerated additions. 19 U.S.C. § 1401a(b)(1).

Transaction value may not be used unless there is sufficient information available to determine the price actually paid or payable. At the time of entry, you requested documentation from the importer to support the value declared for the shoes in entry 3307-110-04621735. You determined that the shoes in entry 3307-110-04621735 were identical to those in the other entries which are the subject of this protest; however, the value declared for the shoes in entry 3307-110-04621735 was lower than the values declared for the shoes in the remaining entries. The documentation submitted by the importer, in response to your request, failed to establish proof of payment or to explain the reason for the lesser values in the subject entry. Accordingly, the Protestant has failed to meet its burden of proof.

In instances where transaction value cannot be used, section 402(a) of the TAA provides for appraisement under one of the other hierarchical methods of appraisement, which in this instance would be section 402(c) of the TAA – transaction value of identical or similar merchandise. Given the fact that the Protestant failed to establish that the merchandise should be appraised under transaction value, we find that your decision to appraise the merchandise under transaction value of identical or similar merchandise is correct. This protest should be denied with regard to the appraisement issue.

ISSUE 2. As to all five of the entries, did the evidence presented create a sufficient basis upon which to determine that Customs misclassified the merchandise?

Protestant's request for further review may be disposed of summarily. The scope of review is limited to the administrative record. The Protestant does not provide any evidence to support its claim that the reclassification by Customs was improper. The Protestant merely “asserts that such reclassification is improper given previous classification on entries into this port.” While the Protestant implies that Customs has previously classified the same footwear as it was entered in this instance, the Protestant does not substantiate this assertion. Thus, there is no evidence in the record to support the Protestant’s claim that the footwear was improperly reclassified.

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). 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).

HOLDING:

The protest should be denied as to the value issue because the decision by Customs to appraise the merchandise under transaction value of identical or similar merchandise was correct.

The protest as to the classification issue 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).

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

Sincerely,

John Durant, Director
Commercial Rulings Division

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