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HQ 965469




AUGUST 6, 2002

CLA-2:CO:R:C:M 965469 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8515.39.00

Port Director of Customs
101 East Main Street
Norfolk, VA 23510

RE: PRD 1401-01-100217; 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 1401-01-100217, filed by the Aegis Security Insurance Company, as surety for the importer, Q3 JMC Inc., against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a rolling and seaming machine. The entry was liquidated on May 25, 2001, and the first formal demand for payment of delinquent amounts due was made on the surety on August 2, 2001. This protest was timely filed on October 26, 2001.

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 distinctly and specifically with respect to each decision. See Section 174.13(a)(6), Customs Regulations (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 classify the goods as other machines and apparatus for arc welding of metals, in subheading 8515.39.00, HTSUS. However, while protestant maintains that the rolling and seaming machine is classifiable as a machine for bending, folding and straightening semiconductor leads, in subheading 8462.29.40, HTSUS, the protestant has provided no evidence to support this claim, nor is there other evidence of record from which we can independently determine the validity of the claim. A representative of the surety informed a member of my staff by telephone today that the company does not plan to supplement this protest and, in fact, is abandoning the protest.

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 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.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division


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