HQ 961466

April 6, 1999

CLA-2 RR:CR:GC 961466 gah

**CATEGORY: Classification**

**TARIFF NO.: 8528.21.7000**

Port Director

U.S. Customs Service

300 S. Ferry Street

Terminal Island, CA 90731

**RE:** Protest 2704-98-100032

Dear Sir:

This is a decision on protest 2704-98-100032 filed by counsel on behalf
of Fujitsu General America, Inc. on January 21, 1998, against your
decision regarding the classification under the Harmonized Tariff
Schedule of the United States (HTSUS) of plasma display monitors.

**FACTS:**

CLASSIFICATION

The merchandise has been described as 42 inch Color Plasma Display
Monitors (model PDS4201U-H), capable of displaying computer images
through connection to a personal computer (PC). As a PC monitor, the
plasma display monitors can be used to display automatic data processing
(ADP) information in presentations to groups of people. As video
monitors, the units accept signals from video equipment such as video
cassette recorders (VCRs), laser disc players and camcorders.

The monitor has a screen size of 42 inches or 105.6 cm wide on the
diagonal, with a 852 x 480 pixel configuration, with a Video Graphics
Array (VGA) connector which is compatible with VGA, SVGA and MAC PC's
standards. Its pixel resolution is 852 x 480 pixels. No dot pitch is
given. The monitors have a depth of 15 cm and a weight of 87 pounds, or
39.5 kg. The audio input is through L &R RCA type connectors for
built-in stereo speakers, 2W each. It has a composite BNC connector or
S-video and is compatible with NTSC, PAL and SECAM standards for
television viewing. It has a control panel on the monitor as well as on
a remote. The technology allows viewing images on the screen in a
breadth of 160 degrees without seeing any image distortion. It can
display images delivered from other apparatus as well, in particular,
liquid displays and digital video discs. It can disseminate information
as an indoor advertising and bulletin board device. It is useable in
multimedia conferencing and presentations.

TIMELINESS OF RELIQUIDATION AND PROTEST

As to entry 110-xxxx8703, it is undisputed that the reliquidation and
protest were timely. Entry 110-xxxx2789 was made on March 25, 1997, and
liquidated on July 11, 1997, with no change. According to Customs
Automated Commercial System (ACS), the create date was March 24, 1997.
According to a Notice of Action, CF 29, dated October 8, 1997 (including
a date stamp), on October 8, 1997 a manual Bulletin of Entries
Liquidated (CF 4333) was posted at Terminal Island (hereinafter referred
to as the "reliquidation CF 29\"). The reliquidation CF 29 indicates
that the date of entry and importation was March 24, 1997, and
specifically identifies the subject entry number. The file includes a
copy of a CF 4333, dated by hand and date stamped October 8, 1997. The
CF 4333 identifies the subject entry, the importer and in the remarks
column states "Manual; Liq Rate Advance." The date of entry is listed as
March 24, 1997.

A second CF 29, dated October 8, 1997 identifies the entries and entry
dates as "various," and gives notice of a rate advance having been made
to re-classify the merchandise from subheading 8471.60.4580, HTSUS, to
subheading 8528.21.7000 HTSUS (hereinafter referred to as the
"classification CF 29\"). The explanation section of the classification
CF 29 identifies the subject entry among others, to which the notice
applies. The explanation section also states that the protestant had
been previously sent a proposed Notice of Action dated July 11, 1997, to
which no response was received.

The file includes a copy of the July 11, 1997 CF 29 which refers to an
entry which is not the subject of this protest, and which gives notice
of a proposed rate advance of the entered merchandise from subheading
8471.60.4580, HTSUS, to subheading 8528.21.7000, HTSUS. The notice has a
handwritten note indicating that the importer's response date is
extended to September 9, 1997, as according to a cover fax sheet sent to
the importer, the initial July 11, 1997 CF29 was "apparently" never
received by the importer. The cover fax sheet states that the CF 29 of
July 11, 1997 is being sent pursuant to a conversation with the fax
addressee. The file also contains a September 22, 1997 CF 29, and an
amended September 22, 1997 CF 29, which state that rate advance action
has been taken by Customs with respect to four different entries, not
including the subject entry.

The ACS indicates that the date of reliquidation of the subject entry
was October 24, 1997. In a telephone conversation of February 23, 1999
with the entry specialist that prepared the reliquidation CF 29, a
manual liquidation is done when there is less than two weeks time
between the date the entry must be liquidated or reliquidated and the
date the liquidation or reliquidation information is submitted to the
entry specialist. In those cases, the date on ACS reflects the date on
which the entry would have automatically liquidated or reliquidated
based on the date the information is submitted to the entry specialist,
had the liquidation or reliquidation not been performed manually. The
entry specialist stated that the reliquidation CF 29 is a document that
is routinely prepared when an entry is manually liquidated or
reliquidated.

The protestant takes the position that the reliquidation of the entry
occurred on October 24, 1997 and was untimely under 19 U.S.C. §1501, as
it occurred more than 90 days after the prior, original, liquidation.
The protest of the reliquidation and the classification was filed on
January 21, 1998.

**ISSUE:**

As to the classification issue, is the plasma display monitor properly
classified in heading 8471 as an ADP monitor, in heading 8528 as a video
monitor, or in heading 8543 as electrical machines and apparatus, having
individual functions, not specified or included elsewhere in chapter 85?

As to the timeliness issues, was the reliquidation of entry 110-xxxx2789
timely, in accordance with 19 U.S.C. 1501 and was the protest itself
timely filed under 19 U.S.C. 1514?

**LAW AND ANALYSIS:**

CLASSIFICATION

Classification of merchandise under the Harmonized Tariff Schedule of
the United States (HTSUS) is in accordance with the General Rules of
Interpretation (GRI). GRI 1 provides that classification shall be
determined according to the terms of the headings and any relative
section or chapter notes. Merchandise that cannot be classified in
accordance with GRI 1 is to be classified in accordance with subsequent
GRI.

Section XVI, legal note 3, HTSUS, requires in pertinent part that
composite machines and other machines adapted for the purpose of
performing two or more complementary or alternative functions are to be
classified as if consisting only of that component or as being that
machine which performs the principal function. The plasma monitors are
such machines, as they perform ADP and video monitor functions. For the
principal function of the monitors, we turn to the headings under
consideration.

Heading 8471, HTSUS, covers in pertinent part units of automatic data
processing machines. Chapter 84, note 5 (B)(a-c) sets forth the
technical requirements that a unit must meet in order to fall within the
scope of heading 8471. The Fujitsu Plasmavision specifications indicate
that it can be used in an ADP system, but no evidence is given that it
is solely or principally used as such. Counsel has submitted advertising
literature indicating that the monitors have two uses, as monitors for
ADP and monitors for video. Factors tending to support a principal use
are well established and include channels of trade, environment of sale
such as advertisements, and recognition of use in the trade. *See,
e.g.*, HQ 960354, dated October 22, 1998. However, counsel provides no
evidence of a principal use. Thus, the gas plasma monitor fails to meet
the terms of note 5(B), and classification in heading 8471 is precluded.
Further, section XVI, legal note 3 fails to resolve classification,
because there is no defined principal function.

Chapter 84, note 5 (E) states that machines performing a specific
function other than data processing and incorporating or working in
conjunction with an ADP machine are classified in a heading appropriate
to their respective functions or failing that, in residual headings.
This note contemplates that there are machines that have dual functions
but have no principal function and can be used in both ADP and another
setting.

Heading 8528, HTSUS, covers in pertinent part video monitors. As noted
above, the subject monitor is capable of displaying signals from any
video source in any video standard. It allows for the viewing of images
on the screen in a breadth of 160 degrees without seeing any image
distortion. Counsel claims that the monitor is used but not principally
used as a video monitor. Principal use as a video monitor is not
required for classification as such in heading 8528.

Counsel argues that given their dual functions classification of these
goods in heading 8543 must be considered, and cites rulings on flat
panel displays. Customs has classified certain flat panel displays in
heading 8543, which provides for electrical machines and apparatus,
having individual functions, *not specified or included elsewhere in
this chapter.* HQ 960634, dated June 27, 1997. In that ruling, the goods
could not function as video monitors, and hence were not included within
heading 8528. The rulings cited by counsel in support of heading 8543
are not relevant to how the merchandise at issue functions, nor the
legal analysis that applies.

The goods meet the terms of heading 8528, are specified and included
therein, and at GRI 1, are therefore properly classifiable in heading
8528 as video monitors. Given that heading 8543 is discarded for not
describing the merchandise, consideration of subdivisions within that
heading cannot be reached.

We note that counsel claims that the Information Technology Agreement
(ITA) supports consideration of heading 8543. Presidential Proclamation
No. 7011, 62 FR 35909 (1997). In pertinent part, the Harmonized Tariff
Schedule was amended to implement the ITA with subheading 8543.89.9200.
That provision covers, *inter alia*, flat panel displays other than for
articles of heading 8528. The language of this provision recognizes that
flat panel displays which can display video signals, such as the instant
monitors, are included in heading 8528. The very provision in which
counsel would have us classify its goods was drafted in recognition of
the multiple functions of flat panel displays, and that their
classification depends on their technical capabilities.

We find that the subject merchandise is specifically provided for in
heading 8528 as a color video monitor with a flat panel screen, not
incorporating video recording or reproducing apparatus, and with a video
display diagonal exceeding 33.02 cm.

RELIQUIDATION AND PROTEST

The reliquidation of an entry is a protestable matter under 19 U.S.C.
§1514(a)(5). Under 19 U.S.C. §1514(c)(3), a protest must be filed within
90 days after a notice of liquidation or reliquidation. Under 19 U.S.C.
§1501, Customs may reliquidate a liquidation made under 19 U.S.C. §1500,
or any reliquidation made under section 1501, in any respect, "within
ninety days from the date on which **notice** of the original
liquidation is given or transmitted to the importer, his consignee or
agent." (Emphasis added). The statute provides that notice of such
reliquidation shall be given or transmitted in the manner prescribed for
original liquidations under 19 U.S.C. §1500(e). The provision for notice
of original liquidation requires Customs to "give or transmit, pursuant
to an electronic data interchange system, notice of \... liquidation to
the importer, his consignee, or agent in such form and manner as the
Secretary shall by regulation prescribe."

Therefore we must determine both for purposes of timeliness of the
protest, and timeliness of the reliquidation, the date of notice of the
reliquidation.

It is well settled that the only notice of liquidation that is
statutorily mandated is bulletin notice. [See]{.underline} [Goldhofer
Fahrzeugwerk GmbH & Co. v. United States]{.underline}, 13 CIT 54, 706 F.
Supp. 892 (1989), [aff'd]{.underline}, 885 F.2d 858 (Fed. Cir. 1989);
[Tropicana Products, Inc. v. United States]{.underline}, 13 CIT 390,
395, 713 F.Supp. 415 (1989). The bulletin notice is the only effective
notice of liquidation and the courtesy notice is predictive only. [SSR
v. Robles]{.underline}, 18 C.I.T. 475, 476, 853 F. Supp. 451 (1994). The
Court of International Trade has held that the importer has the burden
to check for posted notices of liquidation and to protest in a timely
manner. [See]{.underline}, [Juice Farms, Inc. v. United
States]{.underline}, 18 CIT 1037, 1040 (1994) (stating that although
Customs erroneously liquidated entries, protestant had no relief to
protest after the running of 90 day periods after the posting of the
bulletin notices of liquidation); [Penrod Drilling Co., v. United
States]{.underline}, 13 CIT 1005, 1009, 727 F.Supp. 1463 (1989),
[reh'g]{.underline} [denied]{.underline}, 14 C.I.T. 281, 740 F.Supp. 858
(1990), [aff'd]{.underline}. 925 F.2d 406 (Fed. Cir. 1991). In addition,
a presumption of regularity attaches to the acts of government
officials. [See]{.underline}, [e.g]{.underline}., [International Cargo &
Surety Ins. Co., v. United States]{.underline}, 15 CIT, 544, 779 F.
Supp. 174, 177 (1991).

The requirements for bulletin notices of liquidation are set forth in
Customs Regulations 159.9 (19 CFR 159.9):

> \(a\) *Bulletin notice of liquidation.* Notice of liquidation of
> formal entries shall be made on a bulletin notice of liquidation,
> Customs Form 4333.
>
> \(b\) *Posting of bulletin notice*. The bulletin notice of liquidation
> shall be posted for the information of importers in a conspicuous
> place in the customhouse at the port of entry (or Customs station,
> when the entries listed were filed at a Customs station outside the
> limits of a port of entry), or shall be lodged at some other suitable
> place in the customhouse in such a manner that it can readily be
> located and consulted by all interested persons, who shall be directed
> to that place by a notice maintained in a conspicuous place in the
> customhouse stating where notices of liquidation of entries are to be
> found.
>
> \(c\) *Date of liquidation*---(1) *Generally*. The bulletin notice of
> liquidation shall be dated with the date it is posted or lodged in the
> customhouse for the information of importers. This posting or lodging
> shall be deemed the legal evidence of liquidation. For electronic
> entry summaries, the date of liquidation will be the date of posting
> of the bulletin notice of liquidation. Customs will endeavor to
> provide the filer with electronic notification of this date as an
> informal, courtesy notice of liquidation.

The regulations do not require an electronic notice. The statute on
liquidation procedure, 19 U.S.C. §1500, was amended by section 638,
title VI ‑ Customs Modernization, Pub. L. No. 103‑182, the North
American Free Trade Agreement Implementation (NAFTA) Act (107 Stat.
2057), enacted December 8, 1993, to allow Customs to give notice of
liquidation pursuant to an electronic data interchange system. House
Report 103‑361, 103d Cong., 1st Sess., 137 (1993), describes that the
amended provision "authorizes Customs to give or electronically transmit
notice of liquidation in such form and manner as is prescribed by
regulation." The House Report, at page 137, explains that the amendment
would allow Customs to utilize electronic means to transmit notices of
liquidation. Similarly, the Senate Report for the NAFTA Act (S. Rep.
103‑189, 103d Cong., 1st Sess., 88‑89 (1993)), states that the amendment
updates the law to acknowledge that information and data "may" be
electronically transmitted, and "authorizes" Customs to give or transmit
notice of liquidation electronically. The legislative history expresses
the same intention with respect to notice of reliquidation, for the
amendment of 19 U.S.C. §1501, which was amended by section 639 of the
NAFTA. *See* House Report, at 138; Senate Report at 89. Nothing in the
legislative history indicates that notice of the liquidation must be
given by electronic data. The statute provides that notice of
liquidation will be provided as prescribed by regulation.

The applicable regulations have not been revised since the amendment of
the statute. We find that the existing regulation is not inconsistent
with the amended statute, as it implements the statute by specifying how
notice of liquidation is to be given. There is no requirement that an
agency must re-promulgate a pre-existing regulation that is not
inconsistent with a subsequent statute, in order for the regulation to
remain effective. The relationship between regulations and statutes, and
annulment of regulations upon enactment of statutes is stated as
follows:

> Administrative rules must conform to the laws enacted by the
> legislature.
>
> \....
>
> A regulation, valid when promulgated, becomes invalid upon the
> enactment of a statute **in conflict** with the regulation. However,
> an administrative regulation will not be considered as having been
> impliedly annulled by a subsequent act of the legislature unless the
> two are **irreconcilable, clearly repugnant, and so inconsistent**
> that they cannot have concurrent operation. Moreover, implied repeal
> of a regulation by a statute is disfavored, especially where the
> regulation has been approved by the legislative regulation review
> committee.
>
> \....
>
> If a regulation has been in existence for a substantial period of time
> and the legislature has not sought to override the regulation, this
> fact, although not determinative, provides persuasive evidence of the
> continued validity of the regulation.

2 Am. Jur. 2d [Administrative Law]{.underline} §227 (1994) (emphasis
added). We do not find that the statute is in conflict with the
regulation, irreconcilable with the regulation, clearly repugnant or so
inconsistent that the statute and regulation cannot have concurrent
operation.

In this case, according to the reliquidation CF 29, and the date of the
bulletin notice, notice of the reliquidation was given on October 8,
1997. The fact that the date of reliquidation in ACS is October 24,
1997, does not mean that the bulletin notice was not posted on October
8, 1997. According to a Customs official, ACS is not automatically
updated with the date of a manual bulletin notice, and the date of the
notice is not verifiable by ACS.

In [Tropicana Products, Inc. v. United States]{.underline},
[supra]{.underline}, the plaintiff claimed that the date of liquidation
it had been given in a telephone conversation, should be considered the
date of liquidation. Customs asserted that the bulletin notice had been
posted in accordance with 19 CFR 159.9(b), and the court cited the
presumption of regularity to the acts of government officials and stated
that the plaintiff had not met its burden of proof to rebut the
presumption by competent evidence. 13 CIT at 393. The court stated that:

> Plaintiff has not shown that any of its agents or representatives went
> to the customhouse in Tampa, and were unable to find the bulletin
> notice of liquidation for the entries in question. Plaintiff has not
> offered any evidence to show that bulletin notice was not posted in
> the manner prescribed by the Customs Regulations.

[Id]{.underline}. Similarly, in this case, Customs has evidence, in the
form of the October 8, 1997 CF 4333, that the liquidation occurred on
October 8, 1997. The protestant has failed to offer any evidence that
the bulletin notice was not posted as required. Although the date of
entry on the CF 4333, is actually the create date in the ACS entry
record, as opposed to the ACS date of entry, the entry number is
correct, as is the identity of the importer. Evidence relied upon by the
court in [Tropicana]{.underline} made reference to the entry numbers and
identity of the importer included in the posted notice, and did not
refer to the date of the entry. It was stressed in
[Goldhofer]{.underline}, [supra]{.underline}, 13 CIT at 58, that it is
the plain duty of a prudent importer to monitor the customhouse bulletin
in order to determine whether or not liquidation has been made.
[See]{.underline} [also]{.underline}, [Juice Farms, Inc. v. United
States]{.underline}, [supra]{.underline}. In addition, although it is
not relevant to the issue of whether the bulletin notice served as
notice to protestant, the protestant had been on notice that a rate
advance was contemplated for the subject merchandise, by the CF 29\'s of
July 11, and September 22, 1997, and the conversation with the importer
on or before August 20, 1997.

We conclude that the reliquidation took place on October 8, 1997 and
that notice was properly given in accordance with 19 CFR 159.9.
Therefore, the reliquidation was timely made within 90 days from the
date of notice of the original liquidation. Furthermore, the protest as
to the entry at issue is untimely as it was filed more than 90 days
after notice of reliquidation. Without a timely protest the liquidation
of the entry is final and conclusive. [Juice Farms]{.underline},
[supra]{.underline}, 18 CIT at 1040. Based on the foregoing the protest
should be denied as untimely, and on the merits on the issue of the
timeliness of the reliquidation.

**HOLDING:**

The reliquidation was timely, within 90 days from the date of notice of
the original liquidation, and proper notice was provided to the
importer. The protest as to entry 110-xxxx2789 is untimely as it was
filed more than 90 days after notice of reliquidation.

The gas plasma display monitors are classifiable in subheading
8528.21.7000, which provides for video monitors, color, with a flat
panel screen, other, other, and carries a 5 percent ad valorem duty
rate.

The protest should be denied. In accordance with Section 3A(11)(b) of
Customs Directive 099 3550‑065, dated August 4, 1993, Subject: Revised
Protest Directive, you are to mail this decision, together with the
Customs Form 19, to the protestant no later than 60 days from the date
of this letter. Any reliquidation of the entry or entries in accordance
with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and
Rulings

will make the decision available to Customs personnel, and to the public
on the Customs Home Page on the World Wide Web at
www.customs.ustreas.gov, by means of the Freedom of Information Act, and
other methods of public distribution.

Sincerely,

John Durant, Director

Commercial Rulings Division