# HQ W967259

February 28, 2006

**CLA-2** RR:CTF:TCM 967259 KBR

**CATEGORY:** Classification

**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.

**FACTS:**

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.

**ISSUES:**

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?

**LAW AND ANALYSIS:**

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:

(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;

(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.

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).

**HOLDING:**

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.

Sincerely,

Myles B. Harmon, Director

Commercial and Trade Facilitation Division