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HQ 559452




February 5, 1996

CLA-2-05 RR:TC:SM 559452 KR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9811.00.60

Ms. Jane B. O'Dell
Import Manager
Eddie Bauer
15010 N.E. 36th Street
Redmond, Washington 98052

RE: Applicability of subheading 9811.00.60, HTSUS, to sample shirts

Dear Ms. O'Dell:

This is in reference to your letter dated July 7, 1995, requesting a ruling on the acceptable marking of "SAMPLE" on shirts in order to be eligible for treatment under subheading 9811.00.60, Harmonized Tariff Schedule of the United States (HTSUS). You have submitted several samples of shirts and a "transparency gauge" for our review.

FACTS:

You state that you intend to import sample garments for various purposes including: quality control testing, design and development, specification approval, and photography for catalog and advertising. You state that the appearance of the samples is often critical, particularly for photography and advertising purposes. Although you generally have the imported samples marked with a textile marking pen, there are certain garments which you believe are either transparent or of a sufficiently light color that the indelible marking pen ink will bleed through the fabric and damage the sample for some of the necessary uses, such as photographing. You would like to use a sewn-in label on such transparent and light colored garment samples.

To this effect, you have submitted a "transparency gauge" to test the opacity of the fabric. This gauge is a piece of paper with five circles on it. The circles go from a thin dotted line to increasingly thicker lines. The instructions direct the user to place a single ply of the fabric against the paper and see which, if any, of the lines show through the fabric. The user is instructed not to mark the fabric with ink if: for white and light colors, any of the circles are visible through the fabric; and for medium and dark colors, the three lightest circles are visible through the fabric. You wish to use this transparency gauge for all future importations of any garment samples to make the determination as to whether a sewn-in label may be used instead of marking the garment samples with an ink pen.

ISSUE:

Whether the transparency gauge may be used to determine whether a sewn- in label may be used or if marking with an indelible ink pen must be used to designate an imported garment as a sample for treatment under subheading 9811.00.60, HTSUS.

LAW AND ANALYSIS:

Subheading 9811.00.60, HTSUS, provides for the free entry of articles used in the U.S. as samples only to solicit orders for products of foreign countries, provided they are valued not over $1.00 each, or are marked, torn, perforated or otherwise treated so as to render them unsuitable for sale or for use otherwise than as samples. See HQ 558973 (March 30, 1995); HQ 556138 (November 18, 1991); HQ 557013 (March 19, 1993).

With regard to those samples which are valued over $1.00, the issue is the nature of the mark, tear, perforation, or other treatment which will comply with the statute. To meet the requirements of the statute, the mark, tear, perforation, or other treatment must alter items and make them unsuitable for commercial sale, while at the same time, preserve their usefulness as samples.

Guidelines regarding the manner in which textile samples should be marked or otherwise treated to render them eligible for duty-free treatment under subheading 9811.00.60, HTSUS, are set forth in the telex (Interim Update to Customs Directive 3500-07), dated February 11, 1987. See HQ 559079( July 7, 1995); HQ 555875 (MAY 03, 1991); HQ 556138 (November 18, 1991). These guidelines provide as follows for marking of wearing apparel:
a) The inside of the garment must be indelibly stamped with the word "SAMPLE". This stamp must be in contrasting color to the article and near the country of origin label, in one (1) inch or greater letters and physically placed on the article itself.
b) The following guidelines are provided for apparel which is transparent or incapable of being marked (i.e. briefs, bikinis, hosiery, sheer or very thin garments etc.) and for which the stamping of "SAMPLE" would render the article unsuitable for use as a trade sample:

Fabric labels, not smaller than 2 1/2" by 1/2" containing the words "SAMPLE-NOT FOR RESALE" must be conspicuously and permanently affixed to the article in close proximity to the country of origin label. Labels that are loosely placed on a garment, or that can be easily removed will disqualify the entire shipment from being eligible for properly marked commercial sample treatment.

It must be understood that option (b) can only be used when option (a) is not applicable. This is not an either/or proposition. Under no circumstances can a label be used when a garment can be properly marked with an indelible stamp. The burden of proof lies with the importer to show that a stamp would make a garment unsuitable for modeling or photographing purposes.

In the instant case, Eddie Bauer seeks to import shirt samples in order to determine whether the shirts are of acceptable quality for their catalogue and store sales. The samples must be used for the purpose of determining whether to make a purchase from the foreign manufacturer in order to qualify for treatment under 9811.00.60, HTSUS. Samples may not be imported under this provision solely for the purpose of performing additional work on the good or making photographs for use in a catalogue. These latter uses of a sample are not solicitation for sale. In the case of photographing the samples, only the photograph will be used to solicit sales. In such a case, any photographs could be taken prior the sample's importation to the US or the sample could be imported under a temporary importation bond.

The three sample shirts that were submitted were each marked "SAMPLE" on the interior of the garment with an indelible marker, two in black ink and one in yellow ink. In each of the garments the ink bled through so that the ink was visible on the exterior of the garment. Each of these three garments was of a white or ‘bone' color. We find that these three garments could have properly been marked with a sewn-in label indicating they were a "SAMPLE - NOT FOR RESALE". In placing these garments against the "transparency gauge", all of the circles on the gauge are visible through each of the garments. In these three situations, the gauge would lead to an acceptable conclusion that these three garments may use a sewn-in label rather than ink marking. However, we are unable to state definitively that the use of this "transparency gauge" is the test to be used to make this determination under all circumstances. We find that with the different inks and fabrics and garment styles available, it is best left to be determined on a case-by-case basis whether ink marking or a sewn-in labels are appropriate for purposes of obtaining duty-free entry under subheading 9811.00.60. Therefore, as long as the samples are imported for the purpose of soliciting sales as discussed above, and pursuant to the textile marking guidelines, the three samples provided may be marked with a sewn- in label indicating that they are a "SAMPLE - NOT FOR RESALE".

HOLDING:

Based on the information submitted, the three sample shirts may be marked with a sewn-in label indicating that they are a "SAMPLE - NOT FOR RESALE" pursuant to the textile marking guidelines, and be eligible for duty-free treatment under subheading 9811.00.60, HTSUS, when imported into the U.S., assuming they are used only as samples to solicit orders for foreign merchandise. The samples may not be imported under this provision solely for purposes of performing additional work on the good or making photographs for use in a catalogue. A determination as to whether marking "SAMPLE" in ink is required or a sewn-in label may be used should be made on a case-by-case basis and not exclusively through use of the submitted "transparency gauge."

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director
Tariff Classification Appeals Division

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