CLA-2 CO:R:C:M 953481 MBR
District Director
U.S. Customs
1717 East Loop
Houston, Texas 77029
RE: Protests 5301-92-100323, 5301-92-100324; Processor Boards; ADP
Motherboards; ADP Power Supplies; Presidential Proclamation
6310; HQ 953145
Dear District Director:
The following is our decision regarding the request for
further review of protests numbered 5301-92-100323, and 5301-92-
100324, 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 the 102nd Congress, and if enacted into law, would have
provided 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?
Are ADP motherboards subject to duty free status based upon
proposed legislation?
-2-
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
retroactivity and reliquidation, Compaq will be entitled to a
refund of duty.
-3-
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.
See HQ 953145, dated May 6, 1993, for a similar holding
regarding the same merchandise.
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