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HQ 967086

June 14, 2004

CLA-2 RR:CR:GC 967086 IOR

Port Director
U.S. Bureau of Customs and Border Protection 10 Causeway St., Suite 603
Boston, MA 22220

RE: AFR Protest 0401-04-100047

Dear Port Director:

We are returning the Application for Further Review (“AFR”) and Protest 0401-04-100047 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 the subject entries. The entries were liquidated on December 12, 2003, and the protest was timely filed on February 4, 2004. Attachment B to the protest, “Detailed reasons for Protest Against Classification” is stated to describe the classification issues raised in the protest, and refers to Attachment A, as identifying the merchandise. According to Attachment A, the protest is against the classification of two items, each in one of two protested entries.

The first item was imported under entry 004-xxxx987-0, made on January 30, 2003, which entry was comprised of one line item. The second item was imported under entry 004-xxxx034-9, made on January 27, 2003, which entry was comprised of eight line items. Attachment A does not identify the line for either item.

On attachment A, the first item is identified as model no. “ONS15200” and is described as “Multi-Channel Unit, Mechanics, Covers, Accessory Kit.” The item was entered under subheading 9031.49.9000, HTSUS, and the correct classification is claimed to be in subheading 8517.50.9000, HTSUS. Under the “comment” heading on Attachment A, the information provided is “Optical Telecommunications Platform.” On attachment A, the second item is identified as model no. “IPVC-3540-DS03” and is described as “IP/VC 3540 T.120 Data Conferencing S/W-3.” The item was entered and liquidated under subheading 8525.10.3040, HTSUS, and the correct classification is claimed to be in subheading 8517.50.9000, HTSUS. The comment information given is “IPVC System.” No further information regarding either item or its classification is provided either in the documentation or the protest itself.

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

Transponders and Amplifiers
8517.50.9000, 8517.90.5600, or 8517.90.6600 Dispersion Compensation Modules

 The protestant points out that in a Customs Service (now Customs and Border Protection) (“CBP”) General Notice issued on January 8, 2003, CBP reclassified dispersion compensation modules from Chapter 90 to Subheading 8517.50.9000, HTSUS. Based on this assertion of the protestant, it is not clear which classification the protestant seeks for its merchandise. For the purposes of the subject protest, none of the line items were liquidated in Chapter 90, and none were liquidated under subheading 8517.50.9000, HTSUS, therefore this portion of the protest is irrelevant. Multiplexers/ Demultiplexers
None stated
8517.50.9000, 8517.90.5600, or 8517.90.6600 Laser Diode Modules
9013.20.0000 or 9013.80.9000
Other Networking Equipment and Parts
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.

There is one other category of merchandise described as “Other Misclassified Merchandise” for which the protestant’s argument is as follows:

In addition, certain other merchandise covered by the entries was classified incorrectly. The specific merchandise and its entered and claimed classifications are shown in Attachment A. The erroneous classification is evident from the description of the merchandise and applicable rulings that are also identified in Attachment A.

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 application for further review (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 two protested line items 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 the merchandise which was the subject of the protested entries. For example, the protest discusses HQ rulings and court cases pertaining to Laser Diode Modules entered under subheading 9013.20.0000 or 9013.80.9000, HTSUS, at length, however, there is no indication that any of those arguments pertain to the subject merchandise. 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. We received a report, dated May 28, 2004, from the National Commodity Specialist Division (NCSD) which has reviewed the protest. According to the report, based on the information provided, the NCSD cannot determine if either the “ONS15200” or the “IPVC-3540-DS03” is an optical telecommunications platform, transponder, optical amplifier or circuit pack, which are classified in subheading 8517.50.90, HTSUS, pursuant to HQ 965367, dated September 26, 2002.

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 Customs to properly assess 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 two protested items. Further, upon the filing of the protest, counsel for the importer failed to provide any information whatsoever regarding the “Multi-Channel Unit, Mechanics, Covers, Accessory Kit.”, and “IPVC-3540-DS03”, which are asserted to be respectively, a “Optical Telecommunications Platform” and “IPVC System.”

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


John Elkins, Chief

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