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HQ 560135




September 9, 1997

CLA-2-05 RR:TC:SM 560135 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: Modification of prior ruling HQ
559452; applicability of subheading 9811.00.60, HTSUS, to sample shirts

Dear Ms. O'Dell:

This is in reference to a ruling issued to you, HQ 559452 (February 5, 1996), concerning 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 submitted three samples of shirts for our review.

FACTS:

According to the facts set forth in HQ 559452, Eddie Bauer intended to import sample garments for various purposes including: quality control testing, design and development, specification approval, and photography for catalog and advertising. You stated that the appearance of the samples is often critical, particularly for photography and advertising purposes. Although you advised that the imported samples are generally 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 asked whether a sewn-in label indicating that the garments are samples may be used on such transparent and light colored articles.

In HQ 559452, Customs cited to the Interim Update to Customs Directive 3500-07, Textile Sample Guidelines, and determined that the three sample shirts submitted may properly be marked with a sewn-in label indicating that they are a "SAMPLE - NOT FOR RESALE" and be eligible for duty-free treatment under subheading 9811.00.60, HTSUS. After further review of this matter, we have determined that the holding in HQ 559452 is incorrect.

ISSUE:

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 Interim Update to Customs Directive 3500-07, Textile Sample Guidelines, dated January 4, 1989. See HQ 559079 (July 7, 1995); HQ 555875 (May 3, 1991); HQ 556138 (November 18, 1991). These guidelines provide as follows for marking of wearing apparel:

A) A section may be cut or torn from the main body of the garment. This cut must be on the outside of the garment and visible and should not be on a seam or border. The size of the cut or tear should be at a minimum of 2 inches in length.

B) The item may be marked with the word "SAMPLE" in indelible ink or paint. The size of the word "SAMPLE" should be at least 1 inch in height and not less than 2 inches in length. The word "SAMPLE" should be placed in a prominent area of the garment which will be visible when worn and in a contrasting color to the garment.

The definition of an indelible marking is that which is incapable of being erased or obliterated. Markings in chalk or white-out are two types of markings that do not meet that definition.

For items A and B above, Customs officers are authorized to allow smaller markings or cuts for garments which, in their opinion, do not meet the suggested sizes, i.e., infant wear.

C) A hole or section may be punched or cut into a garment on the outside in a prominent area of at least 1 inch in diameter or approximately the size of a U.S. quarter and in a location where it cannot be covered by a patch or an emblem.

The Textile Sample Guidelines also include more lenient guidelines for marking garments as samples to be entered for photographing, modeling, and other similar uses. However, these more lenient guidelines are applicable only to garments which are not classifiable under subheading 9811.00.60, HTSUS, and are therefore not exempt from duty. These guidelines, which were cited in HQ 559452, provide as follows:

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
«" by «" 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.

The guidelines further provide as follows:

The provisions for properly marked commercial samples were developed to allow an option or more lenient method for samples to be entered for photographing, modeling, etc. This was done to allow these articles to enter without mutilation or marking required under 9811.00.60 which might otherwise cause the article to be of little use for such photography or modeling purposes.

Properly marked [c]ommercial samples, which are not classifiable under . . . 9811.00.60, from all countries, ... are not exempt from duty and may be entered on informal entry (including formal mail entry)....

The three sample shirts that were submitted in connection with HRL 559452 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. Pursuant to the above guidelines relating to the marking of commercial samples which are not classifiable in subheading 9811.00.60, HTSUS, we find that the three garments may properly be marked with a sewn-in label indicating they are a "SAMPLE - NOT FOR RESALE". However, if the sewn-in label is used, the shirts will not be eligible for duty-free treatment under subheading 9811.00.60, HTSUS.

It is Customs position that in order for textile wearing apparel to be considered as "unsuitable for sale or for use otherwise than as a sample," for purposes of duty-free treatment under subheading 9811.00.60, HTSUS, it must be either marked, "SAMPLE", in indelible ink or paint (as submitted) or cut or torn in the manner described in the above guidelines relating to the treatment of textile samples entered under subheading 9811.00.60, HTSUS.

HOLDING:

Based on the information submitted, the three sample shirts which are valued over $1.00 each, may not be entered duty-free under subheading 9811.00.60, HTSUS, if they are merely marked with a sewn-in label indicating that they are a "SAMPLE - NOT FOR RESALE" pursuant to the textile marking guidelines. In order to be eligible for duty-free entry under subheading 9811.00.60, HTSUS, the shirts must be marked "SAMPLE", in indelible ink or paint or cut or torn in the manner prescribed in the Interim Update to Customs Directive 3500-07, Textile Sample Guidelines, dated January 4, 1989. HQ 559452 is modified accordingly.

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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