CLA-2 CO:R:C:G 084577 HP
Mr. David Ackerman
Economy Color Card Co., Inc.
1000 S. Elmora Ave.
Elizabeth, NJ 07202
RE: Classification of swatch charts
Dear Mr. Ackerman:
This is in reply to your letters of May 12, 1989, and June
26, 1989, concerning the tariff classification, importation and
marking requirements of swatch charts, produced in Mexico from
American materials, under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA).
The merchandise at issue consists of small swatches of
material glued to cards, creating display cards for various types
of fabric and wall coverings. The sample cards are used for
soliciting orders. The cards will be produced in Mexico
completely from American materials, supplied by the
manufacturers. The materials to be supplied are printed paper,
glue, and the material that is to be presented.
In Example 1, the swatch card contains 32 pieces of fabric
glued to one side. The fabric, paper and glue would be shipped
from the U.S. to Mexico. The fabric is sent to Mexico in 54 inch
by 72 inch pieces. The folders are sent to Mexico in final form.
The glue is sent in 55 gallon drums. The fabric is then cut
length and width to give it serrated edges, and then glued to the
card. You state the material values are as follows:
Fabric.......$0.00* (once cut)
Card.........$0.35 per card
Glue.........$0.01 per card
Mexico.....$0.50 per card
*The fabric swatches on this card are cut from fabric costing
45, if the fabric was sold in 50 yards long by 54 inch wide
In Example 2, the swatch card contains 31 swatches and two
paper strips glued to one side. Each sample has a paper label
which must be attached before the fabric is cut to finished size.
This causes the fabric and label to be serrated together.
Serration is performed to keep the fabric from fraying and
looking ragged. The fabric is sent to Mexico in 54 inch by 30
yard pieces. You state the component values are as follows:
Fabric.......$0.00* (once cut)
4 @ 4......$0.16
*The fabric swatches on this card are cut from fabric that would
cost $1.48 if sold as a 50 yard long by 54 inch wide piece.
In Example 3, the swatch card contains 46 swatches of vinyl
wall covering. The wall covering samples are first assembled
into rows of 2, 3 or 4 colors. These rows are then glued to one
side of the folder. To produce the rows, the vinyl is cut into
strips. After cutting, the strips are glued together on paper
backing. This unit is then cut again into final form. Assembly
must take place in this manner to insure all samples are evenly
shown. The vinyl is sent to Mexico in 54 inch wide by 10 yard
long pieces. You state the component values are as follows:
Vinyl........$0.00* (once cut)
*The vinyl swatches on this card are cut from vinyl that would
cost 59 if sold as a piece 54 inches wide by 30 yards long.
What is the classification of the swatch cards under HTSUSA?
LAW AND ANALYSIS:
Examples 1 and 2
Articles Assembled Abroad From American Components
Heading 9811, HTSUSA, provides for, inter alia, any sample
used for soliciting orders. However, this heading also requires
the samples to be used for solicitation of orders for products of
foreign countries. As you state that the instant merchandise is
used to sell products made in the United States, classification
in heading 9811 is precluded.
Subheading 9802.00.80, HTSUSA, provides for:
Articles assembled abroad in whole or in part of
fabricated components, the product of the United
States, which (a) were exported in condition ready for
assembly without further fabrication, (b) have not lost
their physical identity in such articles by change in
form, shape or otherwise, and (c) have not been
advanced in value or improved in condition abroad
except by being assembled and except by operations
incidental to the assembly process such as cleaning,
lubricating and painting. [Merchandise covered by this
subheading was previously covered by heading 807.00,
Tariff Schedules of the United States (TSUS).]
As the fabric is sent to Mexico in large pieces, and must be
cut to length and width prior to assembly, classification under
subheading 9802.00.80, HTSUSA, is precluded. The cutting of the
fabric is not an operation which is considered incidental to the
assembly process. See section 10.16(c)(2), Customs Regulations
(19 C.F.R. 10.16(c)(2)). We are enclosing for your information
copy of the Customs Regulations relating to subheading
You ask whether slitting or in some other way changing the
material to be cut into swatches prior to exportation to Mexico
would in some way affect classification. We would need specific
details to fully respond to this question.
Classification for Tariff Purposes
Heading 4905, HTSUSA, provides for, inter alia, charts. The
Explanatory Notes to the HTSUSA constitute the official
interpretation of the tariff at the international level. The
Explanatory Note to this heading states that it is intended to
include "...maps, charts and plans designed to represent the
natural or artificial features of countries, towns, seas, the
heavens, etc...." As Examples 1 and 2 do not portray any
physical or political geographic features, they clearly are not
the type of article intended to be classified under heading 4905,
Heading 4911, HTSUSA, provides for other printed matter.
The Explanatory Notes to this heading indicate that this heading
is intended to cover all printed matter not more particularly
covered by any preceding heading.
The General Explanatory Notes to Chapter 49, HTSUSA, state:
With the few exceptions referred to below, this Chapter
covers all printed matter of which the essential nature
and use is determined by the fact of its being printed
with motifs, characters, or pictorial representations.
Thus, in considering classification under this heading, we must
decide whether the essential character of the sample cards is
determined by the fact that they contain printing.
GRI 3 states, in pertinent part:
When by application of Rule 2(b) [goods of more than
one material or substance] or for any other reason,
goods are, prima facie, classifiable under two or more
headings, classification shall be effected as follows:
* * *
(b) Mixtures, composite goods consisting of different
materials or made up of different components, and
goods put up in sets for retail sale, which cannot
be classified by reference to 3(a) [which requires
that goods be classified, if possible, under the
more specific of the competing provisions], shall
be classified as if they consisted of the material
or component which gives them their essential
character, insofar as this criterion is
The factors which determine essential character of an
article will vary from case to case. It may be the nature of the
materials or the components, its bulk, quantity, weight, value,
or the role a material plays in relation to the use of the goods.
In general, essential character has been construed to mean the
attribute which strongly marks or serves to distinguish what an
article is; that which is indispensable to the structure or
condition of an article.
A comparison of the textile portions of the sample cards
with the non-textile materials indicates that is the textile
portions that impart the essential character of the goods. The
cards only serve to support and display the samples, and are of
no use in and of themselves. The primary use of the articles is
to advertise and sell the textiles. Without the samples, the
displays would have nothing to show.
As a result, Examples 1 and 2 are classifiable as other made
up textile articles.
The "articles assembled abroad" analysis and conclusion and
the "classification" analysis for Examples 1 and 2, supra, are
incorporated herein as if repeated verbatim.
Note 1 to Section XI, HTSUSA, provides, in pertinent part:
This section [textiles and textile articles] does not
* * *
(h) Woven, knitted or crocheted fabrics, felt or
nonwovens, impregnated, coated, covered or
laminated with plastics, or articles thereof, of
chapter 39; * * *
Applying the statutory test to the submitted samples, using
normally corrected vision in a well lighted room, we consider the
instant merchandise to be fully covered with plastics visible to
the naked eye. As a result, the wall coverings swatch card, as
represented by Example 3, is not classifiable in Section XI,
Heading 3918, HTSUSA, provides for, inter alia, wall
coverings of plastics. Note 9 to Chapter 39, HTSUSA, states:
For the purposes of heading 3918, the expression "wall
or ceiling coverings of plastics" applies to products
in rolls, of a width not less than 45 cm, suitable for
wall of ceiling decoration, consisting of plastics
fixed permanently on a backing of any material other
than paper, the layer of plastics (on the face side)
being grained, embossed, colored, design-printed or
As the instant plastic swatches are not in rolls, and are fixed
to paper, classification in heading 3918 would be incorrect.
Heading 3921, HTSUSA, provides for other plates, sheets,
film, foil and strips, of plastics. Note 10 to Chapter 39,
HTSUSA, states that these articles may be "uncut or cut into
rectangles (including squares) but not further worked (even if
when so cut they become articles ready for use)." Emphasis
added. It is our opinion that, although the swatches prior to
insertion into the swatch cards meet the definition of sheets,
the gluing of the sheets into the folders is a further working
sufficient to preclude classification in heading 3921. See also
HRL 081298 of March 21, 1989 (considering fabric squares and
rectangles, when glued into sample folders, no longer fabric but
made up articles).
Marking of the Swatch Cards
You have requested a waiver of the requirement to mark each
sample card with Mexico as the country of origin. You state,
however, that the cartons in which the cards will be imported
will be clearly marked with Mexico as the country of origin. You
indicate that the imported swatch cards will be used by your
customers, who are manufacturers or distributors of fabric and
wall coverings, to demonstrate the qualities of their products.
The sample cards are only to be used in the solicitation of
business and are distributed by your customers free of charge to
those individuals or firms that may have the need to see the
product. You also indicate that your customers ship the U.S.
materials directly to the Mexican manufacturer of the swatch
Section 304 of the Tariff Act of 1930, as amended, provides,
in general, that all articles of foreign origin imported into the
U.S. shall be legibly, conspicuously and permanently marked to
indicate to an ultimate purchaser in the U.S. the English name of
the country of origin of the article.
Section 134.1, Customs Regulations, defines ultimate
purchaser as generally the last person in the U.S. who will
receive the article in the form in which it was imported.
Section 134.32, Customs Regulations, lists the general
exceptions to the marking requirements, providing, in pertinent
* * *
(d) Articles for which the marking of the
containers will reasonably indicate the
origin of the articles;
* * *
(f) Articles imported for use by the
importer and not intended for sale in their
imported or any other form;
* * *
(h) Articles for which the ultimate
purchaser must necessarily know the country
of origin by reason of the circumstances of
their importation or by reason of the
character of the articles even though they
are not marked to indicate their origin;
* * *
(m) Products of the U.S. exported and
Before we can determine whether any of the above exceptions
apply, we must decide who is the ultimate purchaser. In HQ
732082 of March 14, 1989, we ruled on the country of origin
requirements of imported articles to be used by the importer as
samples to be shown to prospective customers to solicit sales of
similar articles. We determined that the ultimate purchaser was
the importer who uses the samples in his business, and not the
prospective customer. As such, we determined that the imported
samples may be excepted from marking under either section
134.32(d) or 134.32(f).
In the instant matter, the ultimate purchasers of the
imported swatch charts are also the companies that use the cards
to solicit sales of fabric and wall coverings; i.e., your
customers. As such, two exceptions from marking may apply.
First, as long as the charts are imported in properly marked
cartons, and Customs officials at the port of entry are satisfied
that the swatch charts will reach the ultimate purchasers in
their original marked containers, the charts may be excepted from
individual marking under section 134.32(d). Alternatively, if
you submit satisfactory evidence at the time of importation which
shows that the ultimate purchasers sent the U.S. materials to the
Mexican manufacturers, the swatch charts and their containers are
excepted from marking under section 134.32(h). In such
circumstances, the ultimate purchasers would "necessarily know
from the circumstances of the importation" that the swatch charts
were manufactured in Mexico.
The exception in section 134.32(f) is not applicable in this
case, since the importer is not the ultimate purchaser. Finally,
the exception for U.S. goods exported and returned, provided in
section 134.32(m) does not apply, since the Mexican processing
substantially transforms the U.S. materials into a product of
Mexico for purposes of 19 U.S.C. 1304.
As a result of the foregoing, the instant merchandise is
classified as follows: Examples 1 and 2, under subheading
6307.90.9050, HTSUSA, as other made up articles, including dress
patterns, other, other, other. There are currently no visa or
textile category restrictions for this merchandise. Articles
classified under subheading 6307.90.90, when imported from
designated beneficiary countries, are entitled to a Free duty
rate under the Generalized System of Preferences, provided the
requirements for that special tariff treatment program set forth
in sections 10.171 - 10.178, Customs Regulations (19 C.F.R.
10.171 - 10.178), are satisfied. Otherwise, the General rate of
duty is 7 percent ad valorem.
Example 3 is classified under subheading 3926.90.9050,
HTSUSA, as other articles of plastics and articles of other
materials of headings 3901 to 3914, other, other, other.
Articles classified under subheading 3926.90.90, when imported
from designated beneficiary countries, are entitled to a Free
duty rate under the Generalized System of Preferences, provided
the requirements for that special tariff treatment program set
forth in sections 10.171 - 10.178, Customs Regulations (19 C.F.R.
10.171 - 10.178), are satisfied. Otherwise, the General rate
of duty is 5.3 percent ad valorem.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, you should contact your local
Customs office prior to importing the merchandise to determine
the current applicability of any import restraints or
John Durant, Director
Commercial Rulings Division