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NY M85547




August 09, 2006

CLA-2-98:RR:NC:3:353 M85547

CATEGORY: CLASSIFICATION

TARIFF NO.: 9817.85.01

Mr. Stephen M. Zelman
Stephen M Zelman & Associates
888 Seventh Avenue – Suite 4500
New York, NY 10106

RE: Treatment of samples of a women’s leather anorak from Italy as a prototype.

Dear Mr. Zelman:

In your letter dated July 31, 2006, on behalf of Elie Tahari, Ltd., you requested a determination of the eligibility of samples of a women’s leather anorak as a prototype of subheading 9817.85.01.

The instant merchandise is a women’s leather anorak that would ordinarily be classified in subheading 4203.10.40. There will be up to four identical prototype garments imported together. You state that the garments will be imported exclusively for development or product evaluation and are originals of a style in its pre-production stage, are not sold after importation into the United States or incorporated into other products that are sold, are not subject to quantitative restrictions, antidumping or countervailing duty orders and otherwise qualify under US Note 7(c), Subchapter XVII, HTSUS.

You explain that the importer often requires several of the same prototype for development or evaluation by different departments (design, trims, production and marketing). These departments need to confer among themselves about the style during their review of a prototype and review the sample at approximately the same time for a smooth and efficient process. This allows the departments to have a meaningful discussion about the style and this can best be accomplished when each has a prototype style before it.

Up to four identical prototype garments will be imported together and covered by the same entry. You ask whether the importation would be considered “limited quantities in accordance with industry standards.”

Subheading 9817.85.01 in Subchapter XVII of Chapter 98, HTSUS, provides for “Prototypes to be used exclusively for development, testing, product evaluation, or quality control purposes.”

Note 7 in Subchapter XVII of Chapter 98 defines prototypes for the purposes of HTSUS subheading 9817.85.01 and sets forth certain conditions and limitations governing classification in the subheading. This Note provides:

For purposes of this subchapter, including heading 9817.85.01, the term “prototypes” means originals or models of articles that –
are either in the pre-production, production, or postproduction stage and are to be used exclusively for development, testing, product evaluation, or quality control purposes; and in the case of originals or models of articles that are either in the production or postproduction stage, are associated with a design change from current production (including a refinement, advancement, improvement, development, or quality control in either the product itself or the means for producing the product).

(b) (i) Prototypes may be imported only in limited noncommercial quantities in accordance with industry practice.

(ii) Except as provided for by the Secretary of the Treasury, Prototypes or parts of prototypes may not be sold after importation into the United States or be incorporated into other products that are sold.

(c) Articles subject to quantitative restrictions, antidumping orders, or countervailing duty orders may not be classified as prototypes under this note. Articles subject to licensing requirements, or which must comply with laws, rules, or regulations administered by agencies other than the United Sates Customs Service before being imported, may be classified as prototypes if they comply with all applicable provisions of law and otherwise meet the definition of “prototypes” under paragraph (a).

Based on the information provided, this office believes that in this situation the importation of four identical prototype garments would be considered to be in a quantity that is a normal “noncommercial quantity in accordance with industry practice.” The garments are articles in a pre-production stage and will be used exclusively for product development, testing, product evaluation, or quality control purposes. The garments satisfy the conditions set forth for classification in subheading 9817.85.01.

Please note that the garments cannot be commercially sold without governmental approval in accordance with subparagraph (b)(ii) of Note 7. In addition, eligibility for prototype treatment also requires that the garments not be subject to any of the restrictions in subparagraph (c) of Note 7, i.e. quantitative restrictions, antidumping or countervailing duty orders.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Kenneth Reidlinger at 646-733-3053.

Sincerely,

Robert B. Swierupski
Director,

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