CLA-2 CO:R:C:T 954435 ch
District Director
U.S. Customs Service
111 West Huron Street
Buffalo, New York 14202
Re: Internal Advice 16/93; tariff classification of garbage
and construction demolition debris from Canada;
commingled goods; General Note 5.
Dear Mr. McMullen:
This is in response to your memorandum of February 10, 1993,
requesting internal advice with regard to the tariff
classification of garbage and construction demolition debris
under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA).
FACTS:
Garbage and construction debris are imported into the United
States from Canada over their inland border. The garbage may
consist of paper, food waste, wood, metal or other materials.
The construction debris consist of materials including wood,
metal, concrete, brick, glass and various other materials from
the demolition of buildings. You advise us that it is impossible
to segregate the garbage and construction debris into their
component materials.
ISSUE:
What is the proper tariff classification for the garbage and
construction debris?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI). GRI 1 provides that
classification is determined first in accordance with the terms
of the headings of the tariff and any relative section or chapter
notes. Where goods cannot be classified on the basis of GRI 1,
the remaining GRI will be applied in order.
The HTSUSA does not contain a general provision for garbage
or demolition debris. However, there are 30 provisions for waste
and scrap of various specific materials. In addition, the HTSUSA
contains numerous basket provisions which would describe those
materials which are not classifiable as waste and scrap.
Accordingly, a separate tariff provision will provide for each
component material of the garbage and debris.
GRI 2(b) states that:
Any reference in a heading to a material or substance
shall be taken to include a reference to mixtures or
combinations of that material or substance with other
materials or substances. Any reference to goods of a
given material or substance shall be taken to include a
reference to goods consisting wholly or partly of such
material or substance. The classification of goods
consisting of more than one material or substance shall
be according to the principles of Rule 3. (Emphasis
added).
Thus, "goods," as well as "mixtures or combinations," of
materials and or substances are classifiable pursuant to the
principles of GRI 3.
Goods are commodities or wares. They are generally useful
objects capable of yielding commercial or other advantage. As
garbage and construction debris are not commodities or objects,
and have no commercial use or value, they are not goods.
Furthermore, the terms "mixtures" and "combinations" suggest
that materials or substances must be united or blended in some
fashion in order for GRI 3 to be applicable. Garbage and debris
are not combined in any fashion. Rather, they are merely a
collection of unrelated and miscellaneous objects that have been
compacted together. Hence, they are not mixtures or
combinations. It follows that the principles of GRI 3 are not
applicable and that the materials making up the garbage and
debris are separately classifiable.
We recognize that it is impractical to classify the
materials comprising garbage and debris individually. In order
to resolve this difficulty, we resort to General Note 5, HTSUSA.
General Note 5 provides for commingled goods, and states:
(a) 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:
(i) sampling,
(ii) verification of packing lists or
other documents filed at the time
of entry, or
(iii) 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
subparagraph (b) hereof.
Hence, commingled goods which cannot be segregated are generally
subject to the rate of duty applicable to the material or
substance which carries the highest rate.
In addition, subparagraph (c) provides that:
The foregoing provisions of this note do not apply with
respect to any part of a shipment if the consignee or
his agent furnishes, in such time and manner as may be
prescribed by regulations of the Secretary of the
Treasury, satisfactory proof --
(i) that such part (A) is commercially
negligible, (B) is not capable of segregation
without excessive cost and (C) will not be
segregated prior to its use in a
manufacturing process or otherwise, and
(ii) that the commingling was not intended to
avoid the payment of lawful duties.
Any goods with respect to which such proof is furnished
shall be considered for all customs purposes as a part
of the goods, subject to the next lower rate of duty,
with which they are commingled.
If the requirements of subparagraph (c) are met, the commingled
goods shall be assessed at the next lower rate of duty.
Finally, subparagraph (d) sets forth another option:
The foregoing provisions of this note do not apply with
respect to any shipment if the consignee or his agent
shall furnish, in such time and manner as may be
prescribed by regulations of the Secretary of the
Treasury, satisfactory proof --
(i) that the value of the commingled
goods is less than the aggregated
value would be if the shipment were
segregated;
(ii) that the shipment is not capable of
segregation without excessive cost
and will not be segregated prior to
its use in a manufacturing process
or otherwise; and
(iii) that the commingling was not
intended to avoid the payment of
lawful duties.
Any goods with respect to which such proof is furnished
shall be considered for all customs purposes to be
dutiable at the rate applicable to the material present
in greater quantity than any other material.
Thus, if the goods cannot practically be segregated, and the
value of the commingled goods is less than the value for the
component materials segregated, the importer may elect the rate
of duty applicable for the material of greatest quantity.
Under the Plant Protection and Quarantine Program (PPQ), the
Animal and Plant Health Inspection Service of the Department of
Agriculture is concerned with shipments of international garbage.
Specifically, the PPQ is charged with inspecting garbage which
may carry plant and animal diseases. However, the PPQ has no
authority to inspect non-hazardous garbage transported inland
across the United States - Canadian border. In addition, the
Environmental Protection Agency has statutory authority under The
Toxic Substances Control Act over hazardous waste. However, as
the incoming garbage is non-hazardous, we are aware of no
restrictions on its importation.
HOLDING:
Shipments of garbage and construction debris shall be
classified pursuant to the terms of General Note 5, HTSUSA.
Sincerely,
John Durant, Director