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HQ 967085

June 14, 2004

CLA-2 RR:CR:GC 967085 IOR

Port Director
U.S. Bureau of Customs and Border Protection 1901 Cross Beam Dr.
Charlotte, NC 28217

RE: AFR Protest 1512-03-100217

Dear Port Director:

We are returning the Application for Further Review (“AFR”) and Protest 1512-03-100217 for your action. We find that the criteria for further review was not met as further explained below.

The protest is against the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of certain merchandise upon liquidation of entry 004-xxxx793-1, made on October 3, 2002. The entry was liquidated on August 15, 2003, and the protest was timely filed on November 13, 2003. Attachment “A” to the protest identifies one item on the entry for which a different classification is claimed. Attachment “B” to the protest, “Detailed reasons for Protest Against Classification” is stated to describe the classification issues raised in the protest.

The item described in attachment “A” is said to be line item 9 on the entry, and is described as “Compaq Server Consol Switch 1x8 Ports.” On attachment “A” it is asserted that the claimed classification was in subheading 8536.50.9065, HTSUS, and that the correct classification is in subheading 8471.80.1000, HTSUS. The CF 6445A incorrectly states that the appraised classification was in subheading 9013.80.9000, HTSUS, and the claimed classification is in subheading 8517.50.9000.

Attachment “B” to the protest addresses the correct classification for the following items:

Networking Equipment and Parts thereof Including Transponders and Amplifiers 9013.80.9000
8517.50.9000, 8517.90.4400, 8517.90.5600, or 8517.90.6600 Other Optical Apparatus
9013.80.9000 or 9013.90.9000
None stated

In the portion of attachment “B”, which addresses the foregoing types of merchandise, Customs and Border Protection (“CBP”) Headquarters rulings and court decisions are cited in support of the proposed classification. Appendix I to attachment “B” addresses transponders and optical amplifiers.

According to the CF 7501, line item 9 was entered as stated above, and no merchandise was entered under Chapter 90 of the HTSUS. According to CBP’s Automated Commercial System (ACS), the merchandise was liquidated as entered. Therefore, the arguments made in Attachment “B” are not applicable to the protested entry, as no merchandise was liquidated under Chapter 90, HTSUS. Further, subheading 8471.80.10, HTSUS, covers "control or adapter units" as other units of automatic data processing machines, not networking equipment, amplifiers or transponders.

In the “Application for Further Review” paragraph, no basis for further review is stated, except the boilerplate language that “this protest continues to involve questions of law which have not been ruled upon by the Commissioner, his designee, or the Customs courts, namely, the proper classification of Cisco’s other networking equipment classified as other optical apparatus.” (Emphasis supplied).

The protestant’s AFR does not meet the requirements set forth in the applicable regulations, section 174.24 (19 C.F.R. 174.24), which provide:

Further review of a protest which would otherwise by denied by the port director shall be accorded a party filing an application for further review which meets the requirements of § 174.25 when the decision against which the protest was filed:

(a) 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; (b) 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; (c) 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 (d) 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.

Further review will be accorded to a party filing an AFR which meets the requirements of section 174.25 and at least one of the criterion in § 174.24.

In the subject protest, the AFR was approved notwithstanding the fact the protestant has not alleged any of the conditions required in §174.24 with regard to the specific decision protested. The protestant offers no specific ruling or decision with which the port’s decision in the liquidation of the one item protested is inconsistent, nor what questions of law or fact have not been ruled upon previously. The protest may allege one or more of the required conditions with respect to other matters asserted in the protest, however those matters do not pertain to any of subheadings of the HTSUS, under which the subject merchandise was entered and liquidated. For example, attachment “B” to the protest discusses HQ rulings pertaining to transponders and amplifiers entered under subheading 9013.80.9000, HTSUS, however none of the entered merchandise was entered or liquidated under that subheading. None of the arguments pertain to the protested entry. Consequently, the criteria for further review have not been met and therefore, we are returning the protest to you for your disposition.

Further, we recommend that the protest be denied summarily, for failure to provide any information pertaining to the merchandise the liquidation of which is protested. Pursuant to section 484 of the Tariff Act of 1930, as amended (19 U.S.C. 1484), the importer of record is responsible for using reasonable care to enter, classify and value imported merchandise, and provide any other information necessary to enable CBP to properly assess duties, collect accurate statistics and determine whether any other applicable legal requirement is met. In this case, the importer did not provide such information regarding the “Compaq Server Consol Switch 1x8 Ports” listed on attachment “A.” In addition, upon the filing of the protest, counsel for the importer failed to provide any information whatsoever regarding the “Compaq Server Consol Switch 1x8 Ports” listed on attachment “A.”

If you have any questions regarding the foregoing, please call Ieva O’Rourke, of my staff at 202-572-8803.


Myles B. Harmon, Director

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