CLA-2 RR:TC:SM 560231 MLR

Ms. Debra Stapleton
L.A. Gear
2850 Ocean Park Boulevard
Santa Monica, CA 90405

RE: Applicability of duty exemption to footwear; sewn in label; hole; photography

Dear Ms. Rossoff:

This is in response to your letter of December 4, 1996, requesting a ruling concerning the free entry of footwear. Samples were submitted with your request.

FACTS:

L.A. Gear intends to import footwear into the U.S. for photo shooting purposes. The footwear appears to be composed of a plastic or leather-like material, and does not appear to be footwear subject to any quota or visa requirements. Rather than drill a hole in the bottom of the shoe, L.A. Gear proposes to use a sewn-in label measuring approximately 1 « x 3/4 inches with the words "SAMPLE NOT FOR RESALE." The first sample of an athletic-type shoe contains the label on the inside of the shoe on the tongue. The second shoe sample contains the label on the inside side of the shoe.

ISSUE:

Whether footwear imported for photo shooting purposes containing a sewn-in label with the words "SAMPLE NOT FOR RESALE" either on the inside tongue or on the inside side portion may receive duty-free treatment under subheading 9811.00.60, Harmonized Tariff Schedule of the United States (HTSUS), as samples.

LAW AND ANALYSIS:

Subheading 9811.00.60, HTSUS, provides for the free entry of any sample valued not over $1.00 each, or marked, torn, perforated, or otherwise treated so that it is unsuitable for sale or for use otherwise than as a sample, to be used in the U.S. only for soliciting orders for products of foreign countries. The controlling factor is whether the importer uses the samples for the purpose of soliciting purchase orders for foreign merchandise and the creation of demand for future orders.

Inasmuch as the footwear in this case appears to be valued at more than $1 each, they may not be entered free of duty under this tariff provision unless they are marked as samples or treated in some way to render them unsuitable for commercial sale or any use other than as samples for obtaining orders for similar articles.

Customs has considered several rulings concerning the methods of marking footwear used as samples. In Headquarters Ruling Letter (HRL) 557825 dated March 15, 1994, Customs found that marking footwear by embossing the sole of the shoe with the visible legend "Sample Not For Resale" in a contrasting color was sufficient to render the footwear suitable only for soliciting orders for foreign articles as required by subheading 9811.00.60, HTSUS, provided the legend could not be removed without disfiguring the soles of the shoe. See also HRL 056847 dated October 25, 1978. In HRL 555552 dated August 10, 1990, Customs held that non-quota footwear imported for sample use may either have a 1/4 inch hole drilled in each sole or a label with the words "Sample Not For Resale" permanently attached to a readily visible place in order to qualify for free entry under subheading 9811.00.60, HTSUS, provided the district director was satisfied that such treatment rendered the shoes unsuitable for use for any purpose other than soliciting orders for foreign merchandise. Additionally, in HRL 557460 dated September 29, 1993, Customs held that stamping the legend "Sample Not For Resale" in indelible ink or gold leaf onto the lining of the shoe or embossing this legend onto the upper leather of the outside heel area was sufficient treatment under subheading 9811.00.60, HTSUS. See also HRL 557282 dated September 16, 1993 (athletic type footwear imported into the U.S. with a stencil of the legend "SAMPLE NOT FOR RESALE" on the inside rear quarter of the footwear and also a sewn-in label on the inside quarter at the arch were eligible for duty-free entry under subheading 9811.00.60, HTSUS).

Based upon the rulings discussed above, footwear may be stamped on the outside of the shoe or on a visible area of the inside of the shoe in order to receive duty-free treatment under subheading 9811.00.60, HTSUS. In this case, the shoes are marked on the inside, one shoe containing a label on the tongue and the other on the side. Therefore, as determined by the rulings above, especially HRL 555552 which considered non-quota footwear, it is our opinion that in this case the shoes used for photography purposes do not need to drilled with a hole in order to receive duty-free treatment under subheading 9811.00.60, HTSUS. However, each of the rulings above also required that in order to receive subheading 9811.00.60, HTSUS, treatment, the marking needed to be conspicuous, whether on the outside of the shoe or on the inside. In this case, we do not find either sewn-in label to be conspicuous. In order to see the label on the tongue, the tongue must be turned over, and the label on the side inside of the other shoe is too far down inside the shoe to be readily seen because of the angled design of the shoe. Therefore, it is our opinion that both shoes are currently not marked conspicuously enough to receive duty-free treatment under subheading 9811.00.60, HTSUS. However, if the sewn-in label is placed higher up on the inside of the shoe, the shoes may receive duty-free treatment under subheading 9811.00.60, HTSUS.

HOLDING:

Based on the information and samples submitted, both shoes imported for photo shooting purposes containing a sewn in label with the words "SAMPLE NOT FOR RESALE" either on the inside tongue or on the inside side portion are not marked conspicuously enough to receive duty-free treatment under subheading 9811.00.60, HTSUS, as samples. If the sewn-in label is placed higher up on the inside of the shoe, the shoes may receive duty-free treatment under subheading 9811.00.60, HTSUS.

A copy of this ruling letter should be attached to the entry documents filed at the time the goods are 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