CLA-2: RR:CTF:TCM 967720 KSH
Port Director
U.S. Customs and Border Protection
6747 Engle Road Middleburg Heights, OH 44130
RE: Application for Further Review of Protest 4101-05-100142
Dear Port Director: This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 4101-05-100142, timely filed by UPS Supply Chain Solutions, on behalf of its client, Tru Mold Shoes Inc.
FACTS: The protest is against Customs and Border Protection’s (CBP) classification and liquidation of one entry of custom made-to-measure orthopedic footwear under subheading 6403.59.9061 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
On February 13, 2004, protestant entered the merchandise subject to this protest in subheading 6403.59.9061, HTSUSA, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Other footwear with outer soles of leather: Other: Other: For other persons, Other.” Protestant subsequently filed a supplemental information letter (SIL) seeking to classify the merchandise in subheading 9021.90.8000, HTSUSA, which provides for “Orthopedic appliances, including crutches, surgical belts and trusses; splints and other fracture appliances; artificial parts of the body; hearing aids and other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability; parts
and accessories thereof: Other, Other.” The merchandise was liquidated in subheading 6403.59.9061, HTSUSA, on December 27, 2004. On March 23, 2005, protestant filed a protest and application for further review against the decision of the Port Director to decline liquidation of the merchandise in subheading 9021.90.8000, HTSUSA. Protestant’s AFR request was approved. The protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3) and 19 C.F.R. 174.12 (e)(1).
ISSUE: Does AFR 4101-05-100142 satisfy the criteria for further review under 19 CFR §§174.24 and 174.25?
LAW AND ANALYSIS: Section 174.24 of the Customs and Border Protection (CBP) Regulations (19 CFR §174.24) lists the criteria for granting an AFR. It states that an AFR will be granted when the decision against which the protest was filed:
Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise;
Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts;
Involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling; or
Is alleged to involve questions which the Headquarters Office, United States Customs Service, refused to consider in the form of a request for internal advice pursuant to §177.11(b)(5) of this chapter.
Additionally, Section 174.25(b)(3) of the CBP Regulations (19 CFR §174.25(b)(3)) provides, in pertinent part, that an application for further review shall contain a statement of any facts or additional legal arguments, not part of the record, upon which the protesting party relies, including the criterion set forth in §174.24 which justifies further review.
Under Section V of the instant Protest (“Justification of Further Review Under the Criteria in 19 CFR 174.24 and 174.25”), the protestant does not provide any statement or evidence to substantiate that this protest involves facts or legal arguments which warrant further review by this office. Protestant has completely failed to complete Section V of the Protest in which justification for further review under the criteria set forth in 19 CFR 174.24 and 174.25 is required.
Accordingly, we find that the protest fails to meet the criteria of 19 CFR §174.24 and the justification requirements of 19 CFR §174.25(b)(3), and that further review of the AFR is not warranted.
For your consideration, we note that the issue of custom made-to-measure orthopedic footwear has not been addressed since Note 6 to Chapter 90, HTSUSA, became effective. Although rulings have been issued classifying post-operative orthopedic footwear in heading 9021, HTSUSA, none of the merchandise, the subject of those rulings, has been made-to-measure. See NY J80707, dated February 20, 2003 and NY G81671, dated October 17, 2000. Note 6 to Chapter 90, HTSUSA, states that orthopedic appliances include those that prevent or correct bodily deformities or support or hold body parts following an illness, operation or injury. Note 6 to Chapter 90, HTSUSA, further states that orthopedic appliances also covers footwear provided that it is made to measure or mass-produced, entered singly and not in pairs and designed to fit either foot. Information submitted by protestant indicates that the orthopedic footwear at issue is made to measure and is used to correct and support abnormal or harmful foot positions. Through correction of the abnormality, the purchaser is provided comfort from the abnormal and/or harmful foot position.
HOLDING:
Protest number 4101-05-100142 does not meet the criteria for further review under 19 CFR §174.24 and 19 CFR §174.25. Accordingly, the AFR should not have been granted. We are returning the protest file to your office for consideration of the above comments and appropriate action.
In accordance with the Protest/Petition Processing Handbook, (CIS HB, January 2002, pp 18 and 21), 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 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 CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division