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HQ W967259

February 28, 2006



TARIFF NO.: 8465.93.00

Port Director
Bureau of Customs and Border Protection
610 S. Canal Street
Chicago, IL 60607

RE: Application for Further Review 3901-04-100921; Lens Generator; Machine Tool

Dear Port Director:

This is our decision on application for further review (AFR) 3901-04-100921 filed by counsel on behalf of LOH Optical Machinery, Inc., against your action regarding the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a lens generator that machines plastic, glass, aluminum and other materials.


The entry under protest was filed August 4, 2003. The entry was liquidated on April 2, 2004, and this AFR was timely filed on June 30, 2004. The importer previously filed a protest and received a ruling on the same article in HQ 966621 (February 18, 2004). In HQ 966621, CBP determined that the article had been properly classified by the port in subheading 8465.93.00, HTSUS, which provides, in relevant part, for machine tools for grinding, sanding and polishing hard plastic, and denied the protest.

The merchandise at issue is the LOH V-Pro lens generator ("V-Pro generator), imported by LOH Optical Machinery, Inc. ("LOH"). The operation manual for the LOH V-Pro states that it is a grinding/milling machine used primarily for machining ophthalmic lenses and for making tools for grinding and polishing. The machine has interchangeable cutting tools with varying diamond pads, shapes and positions of the cutting edge for the various materials it processes. These materials are CR-39 resin (a plastic), polycarbonate, high index materials, mineral glass, other ophthalmic materials, aluminum tools, plastic tools and ceramics.

The V-Pro generator has a single workstation. It performs multiple operations of generating and turning with a single cutting tool. The V-Pro combines high-speed disc cutting and single point lens turning. The cutting wheel for working plastic has eight (8) generating bits and four (4) turning bits. During the lens generating process the cutting wheel and the lens blank (also referred to as a workpiece) both rotate so that the generating bits can cut away at the material. The individual bits do not rotate. During the turning process, only the workpiece rotates while the turning bits are fed into it to remove material similarly to a lathe. When the operator manually switches to working glass, he removes this wheel and replaces it with a wheel coated with diamond bond material. The machining leaves the lenses with a ready-to-polish surface.

The V-Pro generator performs milling, lathing or grinding functions of semi-finished blanks. The grinding process is used on glass, plastic, polycarbonate and other high index materials using special galvanic wheels. However, the generator cannot mill or lathe glass (as it does plastic).

You classified the V-Pro generator in subheading 8465.93.00, HTSUS, which provides, in relevant part, for machine tools for grinding, sanding and polishing hard plastic. The protestant claims the generator is classified in subheading 8464.20.50, HTSUS, which provides, in part, for machine tools for grinding glass.


Does the AFR satisfy the criteria for further review under 19 CFR § 174.24(c) by presenting a new issue of facts or legal argument which were not previously considered in HQ 966621?


Initially we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. §1514 (c)(3)(A)). Protests against decisions of the appropriate Bureau of Customs and Border Protection (“CBP”) officers must be in conformity with applicable statutory and regulatory requirements. Under 19 U.S.C. 1514(c)(1), a protest of a decision under subsection (a) of section 1514 must set forth distinctly and specifically each decision as to which a protest is made. United States v. E.H. Bailey & Co., 32 CCPA 89, C.A.D. 291 (1945); United States v. Parksmith Corp., 514 F. 2d 1052, 62 CCPA 76 (1975) and related cases. Additionally, the CBP Regulations require that a protest set forth the nature of, and justification for the objection distinctly and specifically with respect to each decision. 19 CFR §174.13(a)(6).

The scope of review in a protest filed under 19 U.S.C. §1514 is limited to the administrative record. CBP will consider all relevant allegations that are supported by competent evidence. In acting on a protest, however, CBP lacks the legal authority to assume facts and arguments that are not presented and, therefore, not in the official record.

Section 174.24 of the CBP Regulations (19 CFR §174.24) lists the criteria for granting an AFR. It states that a request for AFR will be granted when the decision against which the protest is 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;

(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;

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;

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.

Section 174.25(b)(2)(i) of the CBP Regulations (19 CFR §174.25(b)(2)(i)) states that the AFR must contain an allegation that the protesting party:

(i) Has not previously received an adverse administrative decision from the Commissioner of Customs or his designee nor has presently pending an application for an administrative decision on the same claim with respect to the same category of merchandise;

Additionally, Section 174.25(b)(3) of the CBP Regulations (19 CFR §174.25(b)(3)) provides that the AFR must 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. A showing of facts that support the allegations of a criterion set forth in §174.24(c) will constitute a ground for the granting of further review in circumstances where the applicant’s inability to affirmatively make the allegations described in paragraph (b)(2) of this section would otherwise result in its denial.

Thus, in order to warrant further review per §§174.24 and 175.25, a protestant must identify the matters previously ruled upon by the Commissioner of Customs, his designee or the courts and further, explain what facts or legal arguments the protestant contends were not presented at the time of the decision. Here the protestant was previously issued a ruling concerning the same article in HQ 966621 (February 18, 2004). The protestant has not presented any new facts or legal arguments not previously considered by CBP in HQ 966621. Therefore, the protestant fails to meet the criteria of 19 CFR §§174.24 and 174.25 and further review of the AFR is not warranted. We, therefore, direct your attention to the determination in HQ 966621 and the description of the article therein. See HQ 953309 (June 3, 1993), HQ 966765 (January 14, 2005).


Protest number 3901-04-100921 does not meet the criteria for further review under 19 CFR §§174.24 and 174.25. Accordingly, the AFR should not have been granted. We are returning the protest file to your office for appropriate action.


Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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