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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

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