CLA-2 CO:R:C:G 088753 KWM
TARIFF No.: 6307.90.9050
Mr. Donald W. Myhra
District Director
United States Customs Service
300 Second Avenue, South
Great Falls, Montana 59401
RE: Application for Further Review of Protest Numbers
3303-0-1000045, 3303-0-1000046 & 3303-0-1000047; Color charts;
Samples; Temporarily free of duty under bond.
Dear Mr. Myhra:
This application for further review of a protest decision was
filed in response to your reclassification of merchandise
referred to as vertical blind color charts. For the reasons set
out below, we recommend that the protest be denied.
FACTS:
In a series of entry summaries dating from April 16, 1990 to
June 20, 1990, merchandise referred to as "color charts" or
"sample books" was classified on the import documentation in
subheading 9813.00.20, HTSUSA. At the time of entry the
merchandise was reclassified under subheading 6307.90.9050,
HTSUSA, and the tariff rate advanced accordingly. The goods were
liquidated and this protest ensued within the time prescribed by
the Customs Regulations, 19 CFR 174.12(e).
The Customs Form 19 (protest form) filed by counsel for the
importer contains the following statement:
Protest is hereby made against the reclassification of this
merchandise in heading 6307.90.9050 HTSUSA. This merchandise is
properly classified in heading 9813.00.20 per Customs
Headquarters Ruling HQ 086354. A copy of the ruling is attached
to and incorporated by reference into this protest. In addition,
we protest the amount of merchandising fee assessed for each
entry.
Headquarters Ruling Letter (HRL) 086354, a copy of which was
attached, addressed the classification of merchandise which we
assume is similar to that at issue here. However, no detailed
description of the goods at issue in HRL 086354, nor description
of the transaction contemplated in that case, was attached. In
addition, no sample of the merchandise at issue in the instant
case was included with the protest form, nor was a memorandum
detailing the protested classification claims.
ISSUE:
Are the sample books classified in subheading 9813.00.20,
HTSUSA?
LAW AND ANALYSIS:
Merchandise classification
The suggested Harmonized Tariff Schedule (HTSUSA) subheading
provides for:
9813.00.20 Samples solely for use in taking orders for
merchandise
The applicable rate of duty for such goods is "Free, under bond,
as prescribed in U.S. note 1 to this subchapter." U.S. Note 1 to
Subchapter XIII (including heading 9813, HTSUSA) provides that:
1. (a) The articles described in the provisions of this
subchapter, when not imported for sale or for sale on approval,
may be admitted into the United States without the payment of
duty, under bond for their exportation within 1 year from the
date of importation . . .
Classification in subheading 9813.00.20, HTSUSA, requires
therefore that the goods are samples solely for use in taking
orders for merchandise, that the goods are not for sale, and that
they will be exported within the required time set forth in the
U.S. note. However, the protest form contains no information
that any of these conditions have been or will be met. Counsel
for the protestant would apparently have us refer to the
submissions forwarded with regard to HRL 086354. We will not do
so. The Customs Regulations require that a protest set forth the
nature of, and justification for the objection set forth
distinctly and specifically with respect to each claim. 19 CFR
174.13 (a)(6). Counsel's "incorporation by reference" of HRL
086354 is insufficient for that purpose. The Customs Service has
and will continue to fully consider competent evidence put forth
in support of a protest claim. However, the determinations
required for classification in subheading 9813.00.20, HTSUSA, are
such that we will not assume facts that are not presented with
particularity in regard to each objection. The protestant's
claim may be summarily denied.
Merchandise processing fee
Merchandise processing fees, commonly referred to as Customs
users' fees, are provided for by statute at 19 U.S.C. 58(c).
Under certain circumstances, as detailed in the statute,
merchandise processing fees may be waived or reduced. However,
as we have noted above, counsel for the importer has failed to
provide any evidence which would substantiate any finding that
the merchandise fee should have been reduced. As with the
classification issue, we will not assume into the record unstated
facts or information inferred by reference to prior Customs
rulings. The protestant's claim to reduction in merchandise
processing fees is also summarily dismissed.
HOLDING:
Therefore, you should deny the protest in full. A copy of
this decision should be attached to the Customs Form 29, Notice
of Action, to be forwarded to the protestant.
The merchandise invoiced as "color charts" or "sample books"
is classified as other made up articles of textiles, under
subheading 6307.90.9050, HTSUSA, absent any competent showing
that such merchandise should be reclassified. Further, the
merchandise processing fee should remain as assessed, absent any
competent evidence that they should be reduced.
Sincerely,
John A. Durant, Director