HQ 954645: Protest No. 1001-93-100249

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 954645
                                             November 15, 1993

CLA-2-CO:R:C:M 954645 MMC

CATEGORY: Classification

TARIFF NO.: 6404.19.35

Regional Commissioner of Customs
c/o Protest and Control Section
6 World Trade Center Rm 761
New York, New York 10048-0945

RE: Protest No. 1001-93-100249

Dear Regional Commissioner:

     The following is our decision regarding the request for
further review of Protest No. 1001-93-100249 concerning your
action in classifying and assessing duty on mesh-leather ladies
footwear under the Harmonized Tariff Schedule of the United
States (HTSUS).  

     Protestant's request for further review may be summarily 
denied.  The scope of review in this protest is on the
administrative record, and protestant has not presented any
evidence in support of its assertions.    

     Protestant must comply with the statutory and regulatory
requirements. Section 174.13(a)(6) of the Customs Regulations [19
CFR 174.13(a)(6)], requires that a protest set forth the nature
of, and justification for the objection distinctly and
specifically with respect to each claim.  Furthermore, section
174.24(b) of the Customs Regulations [19 CFR 174.24(b)], requires
that a protest forwarded to Headquarters for review contain
questions of law or fact which have not been ruled upon by the
Commissioner of Customs or his designee or by the Customs courts.

     In the instant case, protestant simply contends that the
entry for the footwear was improperly liquidated under subheading
6404.19.35, HTSUS, and should be reliquidated as entered, in
subheading 6403.99.90, HTSUS, or, in the alternative, under
subheading 6404.19.15, HTSUS.  Customs Laboratory Report 2-92-
11352-001 dated July 13, 1992, indicates that the external
surface of the upper is composed of 55% textiles and 45% leather
and has the following components by weight: rubber/plastic 55.4%,
paper/cardboard 21.6%, textile 10.1%, metal 8.0%, leather 4.9%. 

     Based on this laboratory report, Customs classified the
subject footwear under subheading 6404.19.35, HTSUS, as
[f]ootwear with outer soles of rubber, plastics, leather or
composition leather and uppers of textile materials: [f]ootwear
with outer soles of rubber or plastics: [f]ootwear with open toes
or open heels; footwear of the slip-on type, that is held to the
foot without the use of laces or buckles or other fasteners, the
foregoing except footwear of subheading 6404.19.20 and except
footwear having a foxing or foxing-like band wholly or almost
wholly of rubber or plastics applied or molded at the sole and
overlapping the upper: [o]ther.  Protestant presents no factual
or legal argument contrary to the findings of the laboratory or
the original classification by the port.  

     The Customs Service has and will continue to fully consider
any relevant allegation in a protest, supported by competent
evidence.  However, in acting on a protest, Customs cannot and
will not assume facts that are not presented.  

     Therefore, based on the foregoing discussion, this protest
should be denied in full.  In accordance with Section 3A (11)(b)
of Customs Directive 0993550-065, dated August 4, 1993, Subject:
Revised Protest Directive, this decision, together with the
Customs Form 19, should be mailed by your office to the
protestant, through counsel, no latter than 60 days from the date
of this letter.  Any reliquidation of the entry in accordance
with the decision must be accomplished prior to mailing of the
decision.  Sixty days from the date of the ruling, the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Ruling Module in
ACS and the public via the Diskette Subscription Service, Lexis,
Freedom of Information Act and other public access channels.


                              Sincerely,




                              John Durant, Director