CLA-2 CO:R:C:M 953145 MBR

District Director
U.S. Customs
1717 East Loop
Houston, Texas 77029

RE: Protests 5301-93-100002, 5301-93-100018, 5301-93-100015, 5301- 92-100410, 5301-92-100473, 5301-92-100423, 5301-92-100440, 5301-92-100266, 5301-92-100351, 5301-90-000526, 5301-92- 100188, 5301-92-100347, 5301-92-100327, 5301-92-100322, 5301- 92-100287, 5301-92-100359; Processor Boards; ADP Motherboards; ADP Power Supplies; Presidential Proclamation 6310

Dear District Director:

The following is our decision regarding the request for further review of the subject protests, regarding the tariff status of ADP motherboards and internally mounted ADP power supplies, under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

Counsel for Compaq Computer Corporation ("Compaq") has requested reliquidation of its entries regarding power supplies designed to be internally mounted in ADP machines, based upon Presidential Proclamation 6310, dated June 28, 1991, 56 FR 30303 (1991).

Counsel is also protesting all entries pertaining to the importation of Compaq processor boards (motherboards) for ADP machines, in anticipation of passage of H.R. 1499, which was pending in Congress, and if enacted into law, would provide duty free status for ADP motherboards.

ISSUE:

Are power supplies which are designed for internal mounting in ADP machines subject to reliquidation based on Presidential Proclamation 6310?

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Are ADP motherboards subject to duty free status based upon proposed legislation?

LAW AND ANALYSIS:

We agree with counsel that, pursuant to Presidential Proclamation 6310, ADP power supplies which are suitable for physical incorporation are classifiable in subheading 8471.99.32, HTSUS, which provides for: "[a]utomatic data processing machines and units thereof: [o]ther: [o[ther: [p]ower supplies: [u]nits suitable for physical incorporation into automatic data processing machines or units thereof."

However, counsel for the importer argues for retroactive application of Presidential Proclamation 6310. The proclamation provides, in pertinent part, as follows:

This section further provides that any changes proclaimed by the President shall be effective both for entries made on or after the date of the proclamation and for entries made between January 1, 1989, and the date of the proclamation, upon request by the importer for liquidation or reliquidation thereof within 180 days after the effective date of the proclamation.

Therefore, although this proclamation does provide for retroactivity between January 1, 1989, and the date of the proclamation, it also requires that the importer seek reliquidation within 180 days after the effective date of the proclamation. All of the instant protests are dated in 1992, and 1993, and are therefore, dated more than 180 days from the date of the proclamation (June 28, 1991). However, protests which were filed subsequent to the proclamation dated June 28, 1991, regarding power supplies, are classifiable in subheading 8471.99.32, HTSUS, pursuant to the proclamation.

Counsel is also protesting all entries pertaining to the importation of Compaq motherboards for ADP machines, in anticipation of passage of H.R. 1499, which, if enacted into law, would provide duty free entry for ADP motherboards.

However, H.R. 1499 was not passed into law before the 102nd Congress adjourned. Motherboards are currently classifiable in subheading 8471.91.00, HTSUS, which provides for: [a]utomatic data processing machines and units thereof: [o]ther: [d]igital processing units, whether or not entered with the rest of a system....," at a general duty rate of 3.9% ad valorem. Counsel has requested that liquidation be kept open to preserve their rights should the legislation be enacted in the future. However, it is not appropriate to extend liquidation in favor of proposed legislation. However, if the legislation is reintroduced in the 103rd Congress, and enacted into law, and if it provides for

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retroactivity and reliquidation, Compaq will be entitled to a refund of duty.

Counsel further argues that, as a result of a clerical error on their part, some of the motherboards were misclassified at the time of entry under subheading 8471.20.00, HTSUS, instead of the correct subheading, 8471.91.00, HTSUS, (this entry is dated February 20, 1992). However, this was not a "clerical error," it was a legal error. The Customs broker had the correct invoice and part numbers, and simply arrived at the incorrect HTSUS subheading. Under the protest procedure of 19 U.S.C. 1514, all errors in the classification, valuation, etc., of merchandise can be corrected if the error is brought to the attention of the appropriate Customs officer within 90 days of the liquidation. In the instant case, the classification error was raised within 90 days of the liquidation. Therefore, reclassification of the motherboards in the February 20, 1992, entry is appropriate under subheading 8471.91.00, HTSUS.

HOLDING:

For the foregoing reasons we find that the power supplies, entered on or after June 28, 1991, are classified under subheading 8471.99.32, HTSUS. The motherboards are classifiable under 8471.91.00, HTSUS.

Regarding power supplies suitable for physical incorporation into ADP machines or units thereof, for entries dated on or after June 28, 1991, the protests should be granted, resulting in the classification of power supplies in subheading 8471.99.32, HTSUS.

Regarding the misclassified motherboards in the entry dated February 20, 1992, reclassification under subheading 8471.91.00, HTSUS, is appropriate and the protest should be granted.

A copy of this decision should be attached to the Customs Form 19, and provided to the protestant as part of the Notice of Action on the protests.

Sincerely,

John Durant, Director