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HQ 088753


September 19, 1991

CLA-2 CO:R:C:G 088753 KWM

CATEGORY: CLASSIFICATION

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

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