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:

  ----------------------- ----------------------- -----------------------
  DESCRIPTION             ENTERED HTSUS           ASSERTED CORRECT HTSUS
                          CLASSIFICATION          CLASSIFICATION

  Networking Equipment    9013.80.9000            8517.50.9000,
  and Parts thereof                               8517.90.4400,
  Including Transponders                          8517.90.5600, or
  and Amplifiers                                  8517.90.6600

  Other Optical Apparatus 9013.80.9000 or         None stated
                          9013.90.9000            
  ----------------------- ----------------------- -----------------------

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]{.underline} 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.

Sincerely,

Myles B. Harmon, Director

Commercial Rulings Division

Enc.