CLA-2 RR:CR:TE 960577 jb
Area Director of Customs
New York/Newark Area
6 World Trade Center
New York, NY 10048
RE: Request for Internal Advice; worn clothing and other worn articles; appreciable wear; heading 6309, HTSUS
Dear Sir:
This is in response to memorandum CLA-2-63:RR:NC:WA:353, dated June 2, 1997, requesting Internal Advice regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of worn clothing and other worn articles. Samples were submitted to this office and will be returned under separate cover.
FACTS:
Heading 6309, HTSUS, provides for worn clothing and other worn textile articles. Both legal note 3 to chapter 63, HTSUS, and the Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to heading 6309, HTSUS, explicitly state that for merchandise to qualify in this provision, two criteria must be met, that is, signs of appreciable wear, and presentation in bulk.
Examination of importations of this type of merchandise has revealed that what is entered under heading 6309, HTSUS, does not always comply with the requisite criteria as established by the legal note to chapter 63 and the EN to heading 6309, HTSUS. Partially, this problem is attributed to the lack of understanding of the terms used in the EN, namely ?appreciable wear?. Accordingly, some guidance is requested with respect to developing objective working definitions of the term ?appreciable wear?. In light of this, a number of garments were submitted, each representing different stages of wear.
The garments are as follows:
Man?s poncho with snap front closure and hood
some wearing away of the paint on the snap closures
Man?s wool pants with button front closure and tightening at the ankles
canvas leg openings show fading, abrasion and loose threads; leather strap closures are stained from the metal buckle and show crease and abrasion; inner waistband of the pants is faded and abraded
Man?s cotton pants with button front closure, zippered leg opening and elasticized cuffs
waistband is faded; signs of abrasion of the fabric on waistband and inside pockets; abrasion of the fabric at the cuffs and sides of the zipper; top button hole has loose finishing threads where fabric is separated and torn
Man?s long wool overcoat with self-fabric belt, partial lining and pewter buttons
inside seams by the shoulder show missing threads; inside shoulder seam appears to have been cut at certain points
Man?s polyester/cotton pants with drawstring waist, elasticized leg openings, with zippered pockets, and zippered leg openings
inside seams at the crotch slightly pulled apart by stress; faded color at the elasticized cuffs; pilling on the inside lining by the crotch
Man?s polyester pants with drawstring waist, zippered pocket and zippered leg openings
fading of the outer fabric; sweat stains at the waist; inside openings where the drawstring enters the waist show raw edges and missing threads; seams show stress at the leg openings where some threads are missing; elastic at waistband has little tension
Man?s olive drab jersey pullover with shoulder and elbow patches
slight pilling at the armpit area
Man?s cotton field jacket with button front closure, long sleeves with buttoned wrists, and tightening at the waist
slightly dirty at the front placket and near the cuffs; small amount of fraying of the garment near the front pocket
Man?s button waist trousers with button pockets, tightening at the ankle with leather straps, and tightening at the waist
seams at the fly are loose; fabric is torn at various places; leggings are worn
Woman?s blouse
fabric is very frayed; threadbare at waist; tears by button holes; missing threads at collar
Women?s cotton step-in pantaloons with ties at the waist, lace at the leg bottoms
some stains and small holes
Man?s polyester/cotton camouflage jacket with zippered front, tightening at the waist, long sleeves and pockets
some fading and pilling of the fabric; jacket appears dirty
Man?s sweat top with zippered front opening and zippered pockets
torn seam at the right armpit, slight overall pilling, stained emblem
Woman?s knit shirt with capping
dirty at the top of the shoulder
15 Man?s shirt with button front closure
seams at the underarm are loosed at points of stress, inside back yoke shows some pilling; top buttonhole shows loose threads and raw fabric edges, third button is broken, inside collar has sweat stains
Woman?s black lined jacket with button front closure
some pilling at the shoulders and collar
ISSUE:
Which garments are appropriately classified in heading 6309, HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI), taken in order. GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes, taken in order. In the event that the goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.
Heading 6309, HTSUS, provides for worn clothing and other worn articles. The EN to that heading state:
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.
(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 packaged 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.
In understanding the term ?appreciable wear?, we refer to a number of lexicographic sources for guidance:
Webster?s Ninth New Collegiate Dictionary, 1991, at 96 and 1335, respectively:
Appreciable:
capable of being perceived or measured
Wear:
to cause to deteriorate by use;
consume or waste gradually;
to diminish or decay through use.
Random House Dictionary of the English Language, 1973, at 73 and 1616, respectively:
Appreciable:
capable of being readily perceived or estimated
considerable
Wear:
to cause (garments, linens, etc.) to deteriorate or change by wear;
to impair, deteriorate, or consume gradually by use or any continuous process;
to waste or diminish gradually by rubbing, scraping, washing, etc.;
to make or become unfit or useless through hard or extended use.
Heading 6310, HTSUS, provides for, among other things, used or new rags. The EN to that heading state, in pertinent part:
Rags of textile fabrics (including knitted or crocheted fabrics, felt or nonwovens). Rags may consist of articles of furnishing or clothing or of other old textile articles so worn out, soiled or torn as to be beyond cleaning or repair, or of small new cuttings (e.g., dressmaker?s or tailors? snippings).
* * *
To fall in the heading, these products must be worn, dirty, or torn, or in small pieces. They are generally fit only for the recovery (e.g., by pulling) of the fibres (which are usually re-spun), for the manufacture of paper or plastics, for the manufacture of polishing materials (e.g., polishing wheels), or for use as industrial wipers (e.g., machine wipers).
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. For example, the following descriptions are indicative that an article has been ?appreciably worn?, that is, the article has been used over an extended period of time such that the following physical changes can be seen on the fabric (this list is not exhaustive):
fraying the slipping or raveling of yarns at the edges of the garments;
threadbare the nap has worn off enough so that the threads are revealed;
shiny fabric the nap has been worn away, revealing a smooth fabric that reflects light;
fabric worn thin abrasion has caused the yarns to become so thin that the fabric becomes virtually transparent, revealing the skin or undergarment;
loose seams repeated stress on the seams where the components are joined causing the seams to loosen or separate;
torn seams stress of wear over time has caused the seams to tear;
pilling small tangles or balls of fibers formed when the surface of the material is rubbed against itself or another substance (very common with polyester and acrylic fibers);
abrasion loss of appearance, utility, pile or surface due to the destructive action of surface wear and rubbing;
fading fabric?s color dyes lighten due to a chemical reaction to the sun, pollutants, etc.;
shrinkage reduction in the length or width of material caused by certain treatment (e.g., washing);
staining discoloration caused by exposure to sweat or other external sources such as oil, dirt, grease, etc.;
holes, tears, rips resulting from exposure to moths or other insects, or as a result of continuous use.
At this time we make reference to another distinction which could result in some confusion when classifying merchandise in heading 6309, HTSUS. We have been advised by many of our import specialists who have examined shipments entered under heading 6309, HTSUS, that ?antique? or ?vintage? clothing has also been claimed as qualifying for classification in heading 6309, HTSUS.
Antique, is defined in the Fashion Dictionary by Mary Brooks Picken (1973) at 7, as:
Of another age; applied to any garment or accessory made in ancient style; used derisively of a garment that is old-fashioned, antiquated, out of style.
Vintage, is defined by Random House Dictionary of the English Language, 1973, at 1594, as:
the output of a particular time, or the style of something produced then;
being of a past era;
representing the highest quality of another time.
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). As such, the following factors should be taken into consideration:
Do the articles show ?appreciable wear? (that is, what is the overall appearance of the articles)?
a. what are the physical changes in the fabric ? (see above list)
b. how many of these physical changes are evident?
c. to what degree have these changes occurred, thereby changing the appearance of the article (e.g., slightly, extensively)?
II. Do the attributable changes in the fabric of the article detract from the overall appearance of the article?
III. Are the articles presented in bulk or in bundles, as per the EN to heading 6309, HTSUS?
Thus, a determination of whether a garment shows signs of ?appreciable wear? is neither based on the age (in years) of the garment, nor one of quantifying the number of times it has been worn (that is, 20 times or 200 times). Such a determination is correlated directly to the appearance of the garment?s fabric and thus, the garment as a whole.
Finally, we come to the submitted garments. Using the above analysis, it is the opinion of
this office that only items 9 and 10, show signs of appreciable wear. Item 9, the man?s button waist trousers, exhibits stressed seams, tears at numerous places, and leggings which in general, show much fraying. Similarly, item 10, the women?s blouse, exhibits fabric which in general, is frayed and particularly threadbare at the waist, tears by the button holes and missing threads at the collar. Overall, the remaining garments, numbers 1-8 and 11-16, do not exhibit fabric which is greatly stressed or fabric which reflects the physical deterioration resulting from continued use.
It should be noted that 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 the clothing classified under subheading 6309.00.0010, HTSUSA, which does show appreciable wear. The burden will be on the importer to resubmit the entry and classify the merchandise in the appropriate tariff provision, other than subheading 6309.00.0010, HTSUSA, and meet any applicable quota/visa requirements. If for any reason the importer is unable to fulfill the quota/visa requirements applicable to merchandise that is not eligible for classification in subheading 6309.00.0010, HTSUSA, the importer may opt to separate out those garments and export the remaining unaffected merchandise or otherwise dispose of the merchandise in accordance with Customs Regulations.
HOLDING:
As per the analysis followed above, only garments nine and ten, meet the criteria for ?appreciable wear? and are classified in subheading 6309.00.0010, HTSUSA, which provides for worn clothing and other worn articles: worn clothing. The applicable rate of duty is 1.1 percent ad valorem.
The remaining garments are classified separately in the appropriate headings for garments.
The Office of Regulations and Rulings will take steps to make this decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels 60 days from the date of this decision.
Sincerely,
John Durant, Director
Commercial Rulings Division