CLA-2-05 RR:TC:SM 560135 KR
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