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HQ 967814




October 13, 2005

CLA-2 RR:TCM:CTF 967814 TMF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6309.00.0010

Port Director
Port of Seattle
Customs and Border Protection
1000 Second Avenue, Ste 2100
Seattle, Washington 98104

RE: Request for Internal Advice; Timing of Segregation of Merchandise of Subheading 6309.00.0010 within General Note 3(f), HTSUSA

Dear Port Director:

This letter is in response to a Request for Internal Advice, filed by letter dated July 6, 2005, which was initiated by your office. This request concerns the inspection procedures of various bales of clothing from the importer, Buffalo Industries, Inc, which are submitted by counsel as classifiable as worn clothing of subheading 6309.00.0010, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

We note that the law firm of Joel R. Junker and Associates, on behalf of Buffalo Industries, Inc., requested our reconsideration of New York Ruling Letter L83110, dated March 23, 2005 (which is identified as Headquarters Ruling Letter 967718.) This office is considering this reconsideration request concurrently. We are enclosing a copy for your review.

FACTS:

You state that the importer proposes to import bales of clothing for inspection under subheading 6309.00.0010, which provides for worn clothing. After clearance through CBP, the importer proposes to separate out any items which do not qualify for classification as goods of subheading 6309.00.0010, HTSUSA, for either export or other disposal. After this process, the importer will resubmit a corrected entry within 90 days from the date of release of the entry.

You indicate the importer cites to Headquarters Ruling Letter 960577, dated August 7, 1998, which according to you in summary states, when articles that qualify for subheading 6309.00.0010 are commingled in the same bale with articles that do not qualify in this respective subheading, the articles are not classifiable therein, and the burden falls on the importer to resubmit the entry and classify the goods appropriately elsewhere within the tariff. Further, if any article does not qualify as worn clothing of subheading 6309.00.0010 and it does not meet any applicable quota or visa requirements, the importer may opt to separate out those garments and export or otherwise dispose of the merchandise.

You state that it is the position of the Port of Seattle, pursuant to 19 U.S.C. 1499(a)(1), that the inspection and sorting of items that qualify and do not qualify as worn clothing of subheading 6309.00.0010 may not take place after release.

LAW AND ANALYSIS:

Subheading 6309.00.0010, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), 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.

HQ 960577 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).

In this case, commingling 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.

We refer to General Note 3(f)(ii), HTSUSA, which 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.

We refer to 19 U.S.C. 1499(a)(1), which provides that imported merchandise that is required by law or regulation to be inspected, examined, or appraised shall not be delivered from customs custody until inspection, appraised or examined and reported by Customs to have been truly and correctly invoiced and found to be in compliance with the laws of the United States. Thus, where the importer makes an entry of goods as articles of subheading 6309.00.0010, the goods may not be released until the inspection is completed.

The importer may consider using a Class 8 Bonded Warehouse for the purpose of segregating the merchandise. The segregation remains under the supervision of CBP and at the expense of the proprietor. See 19 C.F.R. §19.1(a)(8). The importer may also consider a storage-manipulation warehouse, in which merchandise may be entered into a warehouse then transferred to a storage-manipulation warehouse for segregation. For further information on this procedure, please see 19 C.F.R.§ 19.11.

In sum, inspection and required segregation may occur at any time prescribed by your office prior to merchandise release provided that the consignee bears the risk and expense of the segregation under customs supervision.

HOLDING:

Inspection and segregation of merchandise that is purported to be classifiable in subheading 6309.00.0010, HTSUSA, which provides for worn clothing, may occur at anytime prior to release into the customs territory. However, it is noted that every segregation of goods shall be made pursuant to subdivision General Note 3(f)(ii), under customs supervision, and accomplished by the consignee or his agent, within 30 days of notice from CBP, at the risk and expense of the consignee, with the compensation and expenses of any supervising customs officers reimbursable to the Government by the consignee.

You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other means of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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