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HQ 967718




October 31, 2005

CLA-2 RR:TCM:CTF 967718 TMF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6309.00.0010

Mr. Joel R. Junker
Joel R. Junker and Associates
1191 Second Avenue, Suite 1800
Seattle, WA 98101

RE: Reconsideration of New York Ruling Letter L83110, dated March 23, 2005; classification of used clothing from various sources

Dear Mr. Junker:

This is in reply to your request dated April 27, 2005 on behalf of your client, Buffalo Industries, to our office for reconsideration of New York Ruling Letter (NY) L83110 dated March 23, 2005.

FACTS:

You indicated in your original request to the National Commodity Specialist Division that your client will purchase used clothing from sorting and grading companies in countries such as India. The used clothing processed by these companies is obtained on a per pound basis by your client from a variety of sources in the United States, Canada and other countries. The merchandise is shipped overseas, typically India, where it is graded and sorted. You state that used clothing is purchased by your client from sorting/grading offshore companies, and is shipped to the United States and entered by your client for the purposes of handling for resale to export markets.

In your original submission to the National Commodity Specialist Division, you requested classification under 6309.00.0010, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for worn clothing. Your request was denied on the grounds that you indicated that a bale could not be segregated and may contain one or more articles that CBP does not consider ‘appreciably worn’. Based on this, the NCSD determined that classification in subheading 6309.00.0010, HTSUSA, would not be appropriate based on General Note 3(f), HTSUSA. Therefore, it was determined that the commingled garments would be classified in Chapters 61 or 62 with the highest duty rates applicable.

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation ("GRI"). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes ("EN") to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

You requested reconsideration of New York Ruling Letter (NY) L83110, dated March 23, 2005 on the basis that this decision “fails to address the principal issues raised therein on which [your client’s] ability to import prospectively rests.” In NY L83110, you requested classification in subheading 6309.00.0010, HTSUSA, which provides for worn clothing. We refer to the Explanatory Note (EN) to that heading which states:

In order to be classified in this heading the articles, of which a limitative list is given in paragraphs (1) and (2) of this Explanatory Note, must comply with both of the following requirements. If they do not meet these requirements they are classified in their appropriate headings.

(A) They must show signs of appreciable wear, whether or not they require cleaning or repair before use.

New articles with faults in weaving, dyeing, etc., and shop-soiled articles are excluded from this heading.

(B) They must be presented in bulk (e.g., in railway goods wagons) or in bales, sacks or similar bulk packings, or in bundles tied together without external wrapping, or packed roughly in crates.

These articles are normally traded in large consignments, usually for resale, and are less carefully packed than is generally the case with new articles.

The term “appreciable wear” has been addressed previously by CBP in Headquarters Ruling Letter 960577, dated August 7, 1988 [sic] [1998], which states, in pertinent part:

It is evident that the tariff draws a clear distinction between those articles which are beyond recovering in their original state, and therefore useless as they were originally intended (rags, heading 6310, HTSUS), and those articles which although not useless, show considerable deterioration from their original state (worn clothing and other worn articles, heading 6309, HTSUS).

When this distinction is applied in conjunction with the common meanings of the term “appreciable wear” we arrive at a practical understanding of that term. In essence, appreciable wear is descriptive of a garment or other article whose appearance has noticeably changed from its original/new/unused stage. This change in appearance must be the result of the various naturally occurring stages to which a fabric succumbs as a result of continuous use.

The term “worn clothing” as provided by subheading 6309.00.0010 is not synonymous with the term “used clothing”. Although you indicate that the merchandise at issue is worn clothing, we disagree and believe that, at a minimum, some is used clothing, not the same as clothing of a kind described in subheading 6309.00.0010, HTSUSA. We again refer to HQ 960577, which goes on to state:

It is clear that the terms “antique” and “vintage” do not speak to the physical condition of the garment, but to the time period in which the article was the style of the day. It is thus conceivable that a garment although “antique” or “vintage” may not show any signs (as described above) of appreciable wear. The simple fact that a garment is old or out of style will not make it classifiable as a “worn” article for tariff purposes. Furthermore, as clearly stated in the EN to heading 6309, HTSUS, neither will the fact that the article requires some cleaning or repair before it can be used. In a nutshell, when classifying merchandise under heading 6309, HTSUS, the ill-effects of continued or habitual use of the article must be readily apparent (as evidenced by the fabric of that article).

Commingled of merchandise is provided for within General Note 3(f) of the Harmonized Tariff Schedule of the United States, which states:

(i) Whenever goods subject to different rates of duty are so packed together or mingled that the quantity or value of each class of goods cannot be readily ascertained by customs officers (without physical segregation of the shipment or the contents of any entire package thereof), by one or more of the following means:

(A) sampling,

(B) verification of packing lists or other documents filed at the time of entry, or

(C) evidence showing performance of commercial settlement tests generally accepted in the trade and filed in such time and manner as may be prescribed by regulations of the Secretary of the Treasury,
the commingled goods shall be subject to the highest rate of duty applicable to any part thereof unless the consignee or his agent segregates the goods pursuant to subdivision (f)(ii) hereof [emphasis added].

General Note 3(f)(ii), HTSUSA, states:

Every segregation of goods made pursuant to subdivision (f) of this note shall be accomplished by the consignee or his agent at the risk and expense of the consignee within 30 days (unless the Secretary authorizes in writing a longer time) after the date of personal delivery or mailing, by such employee as the Secretary of the Treasury shall designate, of written notice to the consignee that the goods are commingled and that quantity or value of each class of goods cannot be readily ascertained by customs officers. Each such segregation shall be accomplished under customs supervision, and the compensation and expenses of the supervising customs officers shall be reimbursed to the Government by the consignee under such regulations as the Secretary of the Treasury may prescribe.

As stated in NY L83110, if the goods cannot be segregated, the commingled garments would be subject to the appropriate provisions of HTS Chapter 61 or 62 for which the highest rate of duty applies.

In your reconsideration request, you state that Carborundum factors should be used to determine if the merchandise is principally used as worn clothing in subheading 6309.00.0010. We disagree and find that application of Carborundum is not appropriate in this case. Determining signs of appreciable wear is not a factor of channels of trade or other elements considered in Carborundum.

Further, it is Customs position that an entry will not be accepted under subheading 6309.00.0010, HTSUSA, if any article within the bale, sack or similar packing does not meet the requirements of “appreciable wear” as outlined above, and has been commingled with clothing classified under subheading 6309.00.0010, HTSUSA, which does show appreciable wear.

We appreciate your request for reconsideration. However, General Note 3(f) and the Explanatory Notes are clear on this matter. Therefore, when you state that a bale “may contain one or more articles which CBP does not consider ‘appreciably worn’,” within 6309.00.0010, the bale would not be considered classifiable therein.

HOLDING:

NY L83110, dated March 23, 2005 is affirmed. Commingled merchandise will be classified by application of General Note 3(f), and assessed duty according to the garment that is assessed the highest rate of duty. Quota/visa requirements are no longer applicable for merchandise which is the product of a World Trade Organization (WTO) member countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas”, which is available on our web site at www.cbp.gov.

For current information regarding possible textile safeguard actions and related issues, we refer you to the web site at the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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