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