HQ 953145

May 6, 1993

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

CATEGORY: Classification

TARIFF NO.: 8471.99.32; 8471.91.00

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