Dis Vintage LLC v. United States ( 2020 )

Slip Op. 20-60
UNITED STATES COURT OF INTERNATIONAL TRADE
DIS VINTAGE LLC,
Plaintiff,
Before: Timothy M. Reif, Judge
v.
Court No. 16-00013
UNITED STATES,
Defendant.
OPINION
[Staying the cross-motions for summary judgment and remanding to Customs to
determine the classification and appropriate rate of duty in conformity with this
decision.]
Dated: May 6, 2020
Peter S. Herrick, Peter S. Herrick, P.A. of St. Petersburg, FL argued for plaintiff
DIS Vintage LLC. With him on the brief was Josh Levy, Marlow, Adler, Abrams,
Newman and Lewis, P.A. of Coral Gables, FL.
Monica P. Triana, Trial Attorney, Civil Division, Commercial Litigation Branch,
U.S. Department of Justice of New York, NY argued for defendant United States. With
her on the brief was Chad A. Readler, Acting Assistant Attorney General and Amy M.
Rubin, Assistant Director, International Trade Field Office of New York, NY. Of Counsel
was Sheryl A. French, Office of the Assistant Chief Counsel, International Trade
Litigation, U.S. Customs and Border Protection.
Reif, Judge: This case is before the court to determine the proper classification of
the imported subject merchandise. The dispute concerns the tariff classification of
secondhand clothing imported by DIS Vintage LLC (“plaintiff” or “DIS Vintage”). Plaintiff
challenges the determination by United States Customs and Border Protection
Court No. 16-00013 Page 2
(“Customs”) that the subject merchandise comprises “commingled goods.” This
determination in turn led to Customs’ subsequent classification of the subject
merchandise under subheading 6204.63.3510 of the Harmonized Tariff Schedule of the
United States (“HTSUS”), 1 which covers women’s trousers or breeches and carries a
28.6 percent ad valorem duty. Plaintiff argues that the subject merchandise is properly
classified under subheading 6309.00.0010 of the HTSUS, which covers “worn clothing”
and is duty-free. The question presented is whether the subject merchandise is
properly classified as “worn clothing” in Heading 6309 or whether the subject
merchandise is “commingled goods” and properly classified as “women’s trousers or
breeches” under Heading 6204 or as another item of clothing contained in the entry.
Plaintiff and the United States (“defendant” or “Government”) filed cross-motions
for summary judgment addressing the proper classification of the imported
merchandise. See Pl.’s Mem. of Law in Supp. of Pl.’s Mot. For Summ. J., ECF No. 26
(“Pl. Br.”); Mem. In Opp. to Pl.’s Motion for Summ. J and in Supp. of Def. Cross-Mot.
For Summ. J., ECF No. 36 (“Def. Br.”). This Court has jurisdiction over this action under
28 U.S.C. § 1581(a).
For the reasons set forth below, the court stays the cross-motions for summary
judgment and remands to Customs to determine the appropriate classification and rate
of duty in conformity with this decision.
1All citations to the HTSUS, including Chapter Notes and General Notes, are to the
2013 edition. This version was in effect on April 23, 2013, when plaintiff entered the
subject merchandise. See 19 C.F.R. § 141.69.
Court No. 16-00013 Page 3
BACKGROUND
The action before the court pertains to 443 bales of secondhand clothing
imported into the United States (the “subject merchandise”). DIS Vintage Statement of
Material Facts for Which There is No Genuine Issue to be Tried (“Pl. Stmt. Facts”), ECF
No. 27 ¶ 16; Defendant’s Responses to Plaintiff DIS Vintage’s Rule 56.3 Statement of
Material Facts (“Def.’s Resp. to Pl. Stmt. Facts”), ECF No. 36-3 ¶ 16. The bales were
entered in two sizes, 100 pounds and 1,000 pounds. Def.’s Statement of Undisputed
Facts (“Def. Stmt. Facts”), ECF No. 36-2. ¶ 6; DIS Vintage’s Responses to Defendant’s
Rule 56.3 Statement of Undisputed Facts (“Pl.’s Resp. to Def. Stmt. Facts”), ECF No.
41. ¶ 6. The subject merchandise was filed under Entry No. AFP-1304311 on April 23,
2013, at the Port of Miami, with a declared value of $23,079.45. Pl. Stmt. Facts ¶¶ 13,
16; Def.’s Resp. to Pl. Stmt. Facts ¶¶ 13, 16. Plaintiff entered the subject merchandise
as “[w]orn clothing” under HTSUS heading 6309.00.0010, which is duty-free. Pl. Stmt.
Facts ¶ 18; Def.’s Resp. to Pl. Stmt. Facts ¶ 18. The subject merchandise was sold to
DIS Vintage (a broker of secondhand clothing) by Le Relais, an entity in France that
receives donated clothing. 2 Pl. Stmt. Facts ¶¶ 3, 19-20, 23; Def.’s Resp. to Pl. Stmt.
Facts ¶¶ 3, 19-20, 23.
After the subject merchandise was entered, Customs selected 20 samples for
review and inspection. Pl. Stmt. Facts ¶ 31; Def. Stmt. Facts ¶ 27. On June 3, 2013,
2 Plaintiff maintains that Le Relais is “one of the biggest charitable institutions in France
that receives donations of used clothes.” Pl. Stmt. Facts ¶ 19. Defendant does not
dispute that the subject merchandise from Le Relais is donated clothing, but denies that
“plaintiff has cited or produced any evidence to establish that all clothing imported from
Le Relais is ‘used.’” Def.’s Resp. to Pl. Stmt. Facts ¶¶ 19-20. Defendant “[d]enies that
plaintiff has provided any evidence to establish that Le Relais is a charity.” Def.’s Resp.
to Pl. Stmt. Facts ¶ 19. This dispute is not material to the classification of the goods.
Court No. 16-00013 Page 4
Customs notified DIS Vintage that the “review of the samples and prior rulings revealed
that the subject [merchandise] ‘did not meet the requirements of appreciable wear in
order to be classified under HTS 6309.00.0010.’” Pl. Stmt. Facts ¶ 33; Def.’s Resp. to
Pl. Stmt. Facts ¶ 33. Customs determined that, while some of the samples were
classifiable as “[w]orn clothing”, other samples were properly classified in a heading in
Chapter 61 or 62. See, Def. Stmt. Facts ¶ 29; Pl.’s Resp. to Def. Stmt. Facts ¶ 29. As
such, Customs ascertained that the subject merchandise was “commingled goods” and
thus subject to the highest duty rate of any one of the samples, which led to the
classification of the subject merchandise under subheading 6204.63.3510 with a duty
rate of 28.6 percent. Pl. Stmt. Facts ¶ 34; Def.’s Resp. to Pl. Stmt. Facts ¶ 34.
Plaintiff timely filed administrative protest 5201-13-100191 challenging Customs’
classification of subject merchandise. Pl. Stmt. Facts ¶ 53; Def.’s Resp. to Pl. Stmt.
Facts ¶ 53. The protest was denied, and on January 13, 2016, plaintiff filed this action
with the Court to contest the final decision under section 515 of the Tariff Act of 1930,
as amended (19 U.S.C. §1515). Second Amended Compl., ECF No. 19 ¶¶ 1, 11.
In addition to the 20 samples selected and reviewed by Customs, plaintiff
submitted 16 and defendant submitted 5 additional samples to the Court. Def. Stmt.
Facts ¶¶ 43, 50; Pl.’s Resp. to Def. Stmt. Facts ¶¶ 43, 50. Plaintiff retained possession
of four bales from the entry at issue in its warehouse. Def. Stmt. Facts ¶ 38; Pl.’s Resp.
to Def. Stmt. Facts ¶ 38. The four bales were marked with green inspection tape stating
that they had been “examined by U.S. Customs and Border Protection.” Def. Stmt.
Facts ¶ 39; Pl.’s Resp. to Def. Stmt. Facts ¶ 39. On February 24, 2017, “Plaintiff
selected and removed four samples from each of the four bales it retained.” Def. Stmt.
Court No. 16-00013 Page 5
Facts ¶¶ 41, 42 (quoting Pl. Ex. 1 (Interrogatories) at 11). Plaintiff supplied defendant
with pictures of the 16 additional samples during discovery. Def. Stmt. Facts ¶ 40; Pl.’s
Resp. to Def. Stmt. Facts ¶ 40.
Defendant obtained the five samples that it submitted to the Court during an
inspection on March 14, 2017 of the four bales in plaintiff’s possession. Def. Stmt.
Facts ¶¶ 47, 50; Pl.’s Resp. to Def. Stmt. Facts ¶ 47, 50. The parties agree that the 41
samples in the Court’s possession are representative of the subject merchandise. Def.
Reply Br. at 14; Pl.’s Resp. to Def. Stmt. Facts ¶¶ 23-24.
STANDARD OF REVIEW
Customs’ protest decisions are reviewed de novo on the record before the
Court. 28 U.S.C. § 2640(a)(1). USCIT Rule 56 permits summary judgment when
“there is no genuine dispute as to any material fact….” USCIT R. 56(a). “[A]ll
evidence must be viewed in the light most favorable to the nonmoving party, and all
reasonable factual inferences should be drawn in favor of the nonmoving party.”
Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994)
(citations omitted). In a dispute over a tariff classification, plaintiff has the burden of
showing that Customs’ classification is incorrect. Jarvis Clark Co. v. United States,
733 F.2d 873, 876 (Fed. Cir. 1984). If plaintiff meets that burden, the court has an
obligation to arrive at “the correct result, by whatever procedure is best suited to the
case at hand.” Id. at 878 (footnote omitted).
The Court has “an independent responsibility” to ascertain the proper meaning
and scope of HTSUS terms in a tariff classification dispute. Warner-Lambert Co. v.
United States, 407 F.3d 1207, 1209 (Fed. Cir. 2005). Determining whether an
Court No. 16-00013 Page 6
imported item has been properly classified necessitates a two-step process. Sports
Graphics, Inc. v. United States, 24 F.3d 1390, 1391 (Fed. Cir. 1994). First, the Court
must “ascertain[] the proper meaning of specific terms within the tariff provision.”
BenQ America Corp. v. United States, 646 F.3d 1371, 1376 (Fed. Cir. 2011) (citations
omitted). Second, the Court needs to “determin[e] whether the merchandise at issue
comes within the description of such terms as properly construed.” Id. The first step is
a question of law and the second step is one of fact. Pillowtex Corp. v. United States,
171 F.3d 1370, 1373 (Fed. Cir. 1999).
LEGAL FRAMEWORK
The General Rules of Interpretation (“GRIs”) of the HTSUS govern the proper
classification of merchandise coming into the United States. Carl Zeiss, Inc. v. United
States, 195 F.3d 1375, 1379 (Fed. Cir. 1999). GRI 1 requires that classification “be
determined according to the terms of the headings and any relative section or chapter
notes.” GRI 1. “Section and chapter notes are not optional interpretive rules, but are
statutory law….” Aves. in Leather, Inc. v. United States, 423 F.3d 1326, 1333 (Fed.
Cir. 2005) (internal quotations omitted). “HTSUS terms are construed according to
their common commercial meanings.” Len–Ron Mfg. Co. v. United States, 334 F.3d
1304, 1309 (Fed. Cir. 2003). To construe a given term, the Court may rely on its own
understanding of terms as well as consult sources such as lexicographic and scientific
authorities, dictionaries and other reliable information. Baxter Healthcare Corp. v.
United States, 182 F. 3d 1333, 1338 (Fed. Cir. 1999). For additional guidance on the
scope and meaning of tariff headings and chapter and section notes, the Court may
also look to the Harmonized Commodity Description and Coding System Explanatory
Court No. 16-00013 Page 7
Notes which are developed by the World Customs Organization (WCO). Dell Prods.
LP v. United States, 34 CIT 688, 692, 714 F. Supp. 2d 1252, 1257 (2010). While not
binding law, Explanatory Notes are “generally indicative of the proper interpretation of
a tariff provision.” Agfa Corp. v. United States, 520 F.3d 1326, 1239 (Fed. Cir. 2008)
(citation omitted).
DISCUSSION
In conducting its de novo review, first, the court will state the positions of the
parties. Second, the court will turn to interpreting Heading 6309 “[w]orn clothing and
other worn articles” (collectively, “worn clothing”). To do so, the court will define
“appreciable wear” in Chapter Note 3(i), which requires that “worn clothing” “show signs
of appreciable wear.” The court will also determine whether the requirement in Chapter
Note 3(ii), that “worn clothing” be entered “in bulk or in bales, sacks or similar packings”
(collectively, “in bales”), is a “particular tariff treatment” such that it prevails over the
general rule for commingled goods in General Note 3(f)(i). Additionally, the court will
address Customs’ reliance on past HQ Rulings that applied Heading 6309, specifically
as Customs’ reliance on those rulings helped to guide Customs’ review with regard to
the samples in the instant case. Finally, the court will determine that a remand to
Customs is the appropriate remedy in deciding whether the subject merchandise is
classifiable under Heading 6309 or whether the subject merchandise is properly
identified as “commingled goods” and, thus, subject to a rate of duty under an
alternative heading.
Court No. 16-00013 Page 8
I. Positions of the Parties
Plaintiff supports classification of the subject merchandise under Heading 6309,
which covers “worn clothing.” Pl. Br. at 16. Specifically, plaintiff contends that the
subject merchandise is classifiable under subheading 6309.00.0010, which provides as
follows:
6309 Worn clothing and other worn articles.
6309.00.00 Worn clothing and other worn articles.
6309.00.0010 Worn clothing.
Plaintiff’s proposed criteria for “worn clothing” “permit[s] all used or secondhand clothing
with any trace of diminished value or appearance as a result of any previous use, wear,
or handling” to satisfy the requirements of Heading 6309. Pl.’s Combined Reply in
Support of Mot. for Summ. J. and Resp. to Def.’s Cross-Mot. for Summ. J., ECF No. 40
(“Pl. Reply Br.”) at 6. In sum, plaintiff’s position is that all “used clothing” presented in
bales is “worn clothing” under Heading 6309. Pl. Br. at 25.
Defendant’s standard for “worn clothing” requires that an item must “(1) ‘show
visible damage, impairment or change to its physical condition,’ and that change must
be (2) the ‘result of use.’” Def. Reply Mem. in Further Support of Cross-Mot. for Summ.
J., ECF No. 42 (“Def. Reply Br.”) at 6. Applying this standard, defendant agrees that
some of the samples taken from the subject merchandise would have been classifiable
as “worn clothing” under Heading 6309 and, as such, duty-free; however, defendant
argues that other samples were classifiable under other headings that are dutiable.
Def. Br. at 24.
Court No. 16-00013 Page 9
On this basis, defendant concludes that Customs was required to apply General
Note 3(f), which defines “commingled goods” as goods that are subject to different rates
of duty and are mingled together. Def. Br. at 26-27. Applying General Note 3(f),
defendant argues that when a shipment is found to be comprised of commingled goods,
the entire shipment is subject to the rate of duty of the sample with the highest rate of
duty from the entry. Def. Br. at 23. In this case, Customs determined that at least one
of the samples was classifiable in subheading 6204.63.3510, dutiable at 28.6 percent,
which covers women’s trousers and breeches. 3 4 Def. Br. at 9.
II. The Tariff Provision
Heading 6309 covers “[w]orn clothing and other worn articles.” As the positions
of the parties, above, indicate, proper classification of the subject merchandise in this
case hinges on the meaning of “worn clothing.” The term “worn clothing” is not defined
3 The record does not contain an itemized list of the classification determinations within
Chapters 61 (“Articles of Apparel and Clothing Accessories; Knitted or Crocheted”) and
62 (“Articles of Apparel and Clothing Accessories; Not Knitted or Crocheted”) as
assigned to each of the 20 samples reviewed by Customs. The record shows only that
Customs determined that subheading 6204.63.3510 was the proper classification for at
least one of the samples, which Customs determined to be the highest duty rate among
the samples, and, therefore, determined to be the classification for the entire entry. Def.
Br. at 31.
4 The relevant subheading provides as follows:
6204 Women's or girls' suits, ensembles, suit-type jackets, blazers,
dresses, skirts, divided skirts, trousers, bib and brace overalls,
breeches and shorts (other than swimwear); Suits:
6204.63 Of synthetic fibers:
6204.63.35 Other. Trousers and breeches.
6204.63.3510 Women’s (648).
Court No. 16-00013 Page 10
in the HTSUS and has not been defined by this Court. Chapter Note 3 provides
additional requirements for Heading 6309.
Heading 6309 applies only to the following goods:
(a) Articles of textile materials:
(i) Clothing and clothing accessories, and parts thereof;
(ii) Blankets and traveling rugs;
(iii) Bed linen, table linen, toilet linen and kitchen linen;
(iv) Furnishings, other than carpets of headings 5701 to 5705 and
tapestries of heading 5805.
(b) Footwear and headgear of any material other than asbestos.
In order to be classified in this heading, the articles mentioned above must
comply with both of the following requirements:
(i) They must show signs of appreciable wear; and
(ii) They must be entered in bulk or in bales, sacks or similar packings.
In sum, for the subject merchandise to be covered by Heading 6309, it must
meet three requirements: (1) be one of the aforementioned articles of textile materials or
specified footwear and headgear; (2) “show signs of appreciable wear”; and, (3) be
entered “in bales.” The parties do not contest that the subject merchandise meets the
first requirement. Accordingly, the court proceeds to consider the second and third
requirements.
A. Show Signs of Appreciable Wear
The first requirement of Chapter Note 3 mandates that the merchandise “show
signs of appreciable wear.” “Appreciable wear” is not defined by the HTSUS and has
not been defined by this Court.
Court No. 16-00013 Page 11
Both parties offer dictionary definitions of “appreciable.” Plaintiff cites W EBSTER’S
THIRD NEW INT’L DICT. UNABRIDGED (1993), “capable of being readily perceived or
estimated.” Pl. Br. at 25. Defendant supplies the definition “large enough to be
important or clearly noticed.” Def. Br. at 16 (citing COLLINS DICTIONARY,
https://www.collinsdictionary.com/us/dictionary/english/appreciable (last visited July 16,
2017)). Defendant also offers, “enough to be perceived or estimated; noticeable;
measurable.” Def. Br. at 17 (citing W EBSTER’S NEW W ORLD DICTIONARY, THIRD COLLEGE
EDITION 67 (1988)). Based on the definitions provided, defendant asserts that
“appreciable” means “visible” in the context of the Chapter Note. Def. Reply Br. at 9.
While the parties offer different definitions, the definitions share a common
thread. All of the definitions provided support a reading of “appreciable” that is
synonymous with “noticeable.” Pl. Br. at 25; Def. Br. at 16-17. The definition offered by
plaintiff includes the term “readily perceived,” and the definition offered by defendant
includes the term “clearly noticed” (emphasis supplied). Id. Thus, under Heading 6309,
“appreciable” means that the quantity or extent of the “wear” matters only insomuch as
the “wear” on the merchandise can be readily or clearly noticed. In full context, the
requirement reads that “[the articles] must show signs of appreciable wear” (emphasis
supplied). The phrasing “show signs” bolsters the understanding that for the “wear” to
be readily or clearly noticeable, it needs to be visible to eye.
Next, the court turns to defining “wear” in the context of the term “appreciable
wear” as it appears in Chapter Note 3. The parties provided numerous definitions,
which fall into two main categories: (1) a definition offered by plaintiff meaning “the act
Court No. 16-00013 Page 12
of wearing” (emphasis supplied); and, (2) various definitions offered by both parties
meaning “the result of wear” or “damage” (emphasis supplied).
For the first category, plaintiff offered the definition “[t]he act of wearing or the
state of being worn; use” from the AMERICAN HERITAGE DICTIONARY OF THE ENGLISH
LANGUAGE (2011). Pl. Br. at 25. The definition of “wear” as “the act of wearing…” is not
per se inconsistent with the term “worn” in the Heading; however, the definition is
inconsistent with Chapter Note 3(i) because “the act of wearing” cannot show signs that
are “appreciable.” It would not make sense for “worn” to have one meaning in the
Heading and “wear” to have another meaning in the Chapter Note intending to clarify
the Heading. Therefore, notwithstanding that “worn” is an adjective in “worn clothing”
and “wear” is a noun in “appreciable wear,” the two must share the same underlying
meaning. In sum, the court concludes that the definition of “wear” as “the act of
wearing” is not supported by the language of Heading 6309 and Chapter Note 3.
None of the definitions in the second category that were offered by both parties is
inconsistent with the language of Heading 6309 and Chapter Note 3. The definitions
support “worn” as meaning “damaged” or “impaired,” and “wear” as meaning “damage”
or “impairment.” 5 In the forthcoming discussion, “wear” will be used to include “wear”
and its corresponding adjective form “worn.”
5 Plaintiff offers two definitions: (1) “worn” as “diminished in value or usefulness through
wear, use, handling, etc.: worn clothing” RANDOM HOUSE DICT. OF THE ENGLISH
LANGUAGE (1973) (“RANDOM HOUSE DICTIONARY definition”); and, (2) “wear” as “The
result of wearing or use: diminution or impairment due to use.” W EBSTER’S THIRD NEW
INT’L DICT. UNABRIDGED (1993). Pl. Br. at 25. Defendant offers seven definitions: (1)
“worn” as “past participle of wear,” “1. Showing the effects of use, wear, etc.” and “2.
Damaged by use or wear.” W EBSTER’S NEW WORLD DICTIONARY, THIRD COLLEGE EDITION
1540 (1988); (2) “worn” as “1. Damaged and shabby as a result of much use.” NEW
Court No. 16-00013 Page 13
It is clear from the definitions provided that “wear” has two components: (1) a
change involving deterioration; and, (2) how the change came to be. With regard to the
first component, a change, the parties disagree as to whether that change has to be a
physical change. Plaintiff’s preferred definition is one in which “wear” includes a change
in “value or usefulness.” See Pl. Br. at 25-26. However, all other definitions provided
by plaintiff and defendant involve a physical change. See supra note 5. The court
determines that the change involving deterioration is a physical change — damage or
impairment. For reasons similar to above, this component of “wear” is supported by the
requirement in Chapter Note 3(i) that an article must “show signs of appreciable wear.”
The second component of “wear” is how the damage or impairment came to be.
The court determines that the physical change comes to be by “use.” To “use” a
garment means to wear a garment on one’s person. In discussing the second
component, the court will utilize the word “use” exclusively so as to avoid confusion with
the term the court seeks to define: “wear.”
In defendant’s briefs and at Oral Argument, defendant at times supports having
“continued use” be the standard for the second component — how the damage or
impairment came to be. Def. Br. at 16-17; Recording of Oral Argument at 37:38-37:45.
OXFORD AMERICAN DICTIONARY, THIRD EDITION 1993 (2010); (3) “worn” as “2. Used, as a
garment; hence, much used and showing the results of wear.” FUNK & W AGNALL’S NEW
STANDARD DICTIONARY OF THE ENGLISH LANGUAGE 273 (1952); (4) “worn” as “1. Affected
by wear or use,” “2. Impaired or damaged by wear or use.” THE AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE, NEW COLLEGE EDITION 1475-76 (1976); (5) “worn”
as “something that is worn looks old and damaged because it has been used a lot.”
MACMILLAN DICTIONARY; (6) “wear” as “to cause to deteriorate by use…b: to impair or
diminish by use or attrition.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2589
(1981); and, (7) “wear” as “the verb as ‘damage or destroy something by friction or
continued use’ or the noun as “damage caused by continuous use.” OXFORD AMERICAN
DICTIONARY AND THESAURUS, SECOND EDITION 1484. Def. Br. at 15-16.
Court No. 16-00013 Page 14
Customs has also offered “continued use” as the standard for this component since
issuing HQ 960577 in 1998. Customs Ruling Letter, HQ 960577 (Aug. 7, 1998).
The court determines that “continued use” is not necessary, “use” is sufficient,
and “use” is the correct definition for the second component of the meaning of “wear.”
The court reaches this conclusion because the first component of “wear” requires
physical damage or impairment. If “use” is not sufficient to cause damage or
impairment, then the merchandise will not and should not meet the definition of “wear.”
Plaintiff favors a definition of “wear” in which “handling” is one means by which
the wear may occur. Pl. Br. at 26. Plaintiff relies on the RANDOM HOUSE DICTIONARY
definition to argue that the first component — viz., the physical change — can come
from something other than “use,” namely “packing, shipping, and handling.” 6 Pl. Reply
Br. at 11. Defendant points to Explanatory Note 63.09 to support its contention that
damage or impairment from handling does not have a place within the definition of
“worn clothing.” Def. Br. at 16. Explanatory Note 63.09 states:
To be classified in this heading the articles…must comply with both of the
following requirements. If they do not meet these requirements, they are
classified in their appropriate headings.
6 Related to this point, plaintiff argues that the “in bales” requirement of Chapter Note
3(ii) diminishes the appearance of the clothing. Pl. Reply Br. at 11. Plaintiff points to
clothing being “disheveled and wrinkled as a result of being pressure-crammed into
bales.” Pl. Reply Br. at 11. Essentially, plaintiff argues that the “in bales” requirement
makes the clothing contained therein show “appreciable wear.” Id. This logic is circular
and would mean that any clothing arriving “in bales” per se satisfies both requirements
of Heading 6309. Chapter Note 3 and Explanatory Note 63.09 make clear that articles
having to “show signs of appreciable wear” and to be entered “in bales” are two
separate requirements. See Chapter Note 3; Explanatory Note 63.09. The “in bales”
requirement cannot impart “appreciable wear” onto the articles.
Court No. 16-00013 Page 15
(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.… 7
Defendant argues that subsection A is “a list of items damaged other than by use.” Def.
Br. at 16 (emphasis in original).
The court finds this explanation convincing. “New articles with faults” are items
with damage or impairment caused by manufacturing. Dictionary definitions of the term
“shop-soiled” indicate that the damage or impairment is caused to items from being on
display, or handled, in a store. 8 While Explanatory Notes are not binding on this Court,
they are persuasive, and further support the court’s determination that the second
component of the term “wear” requires that the damage or impairment be by “use.” In
sum, the court determines that the term “appreciable wear” is noticeable damage or
impairment caused by use.
7 All citations to the Explanatory Notes are to the 2012 edition. See World Customs
Org., Harmonized Commodity Description and Coding System.
8 “Shopsoiled: 1. Worn, faded, tarnished, etc. from being displayed in a shop or store.
US equivalent: shopworn.” (COLLINS DICTIONARY,
https://www.collinsdictionary.com/dictionary/english/shopsoiled (last visited April 14,
2020)). “Shop-soiled: 1. If goods sold in shops are shop-soiled, they are slightly dirty or
damaged and therefore reduced in price.” (CAMBRIDGE DICTIONARY,
https://dictionary.cambridge.org/us/dictionary/english/shop-soiled (last visited April 14,
2020)). “Shopworn: 1. If clothes or other goods in a store are shopworn, they look
slightly damaged or dirty, especially because they have been used in a display.”
(MACMILLAN DICTIONARY,
https://www.macmillandictionary.com/us/dictionary/american/shopworn (last visited April
14, 2020)).
Court No. 16-00013 Page 16
B. Entered in Bulk or in Bales, Sacks or Similar Packings
The third requirement in Chapter Note 3 is that “worn clothing” be entered “in
bulk or in bales, sacks or similar packings.” The parties agree on what it means for
articles to be entered “in bales.” However, plaintiff challenges the justification provided
by Customs for its determination that the subject merchandise is commingled goods.
Plaintiff bases its challenge on the grounds that the “in bales” requirement is a
“particular tariff treatment” that supersedes Customs’ authority to apply the general rule
for commingled goods. See Pl. Br. at 28-29. Plaintiff argues in particular that the
weight and packaging requirements in Heading 6309 constitute a particular tariff
treatment. Recording of Oral Argument at 32:20-32:59.
The relevant parts of HTSUS General Note 3(f) are as follows:
(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 … 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.
…
(v) The provisions of subdivision (f) of this note shall apply only in cases where
the tariff schedule does not expressly provide a particular tariff treatment for
commingled goods.
General Note 3(f) (emphasis supplied). General Note 3(f)(v) declares that the HTSUS
must “expressly provide a particular tariff treatment” and that if a “particular tariff
treatment” is provided, that tariff treatment would take precedence over the default
“commingled goods” rule of General Note 3(f)(i) (emphasis supplied).
Court No. 16-00013 Page 17
A “particular tariff treatment” is “expressly provide[d]” by the HTSUS when goods
subject to different rates of duty are so mingled that a classification as commingled
goods would be appropriate, but for the HTSUS providing a specific tariff provision for
the goods. See Amoco Oil Co. v. United States, 749 F.2d 1576 (Fed. Cir. 1984) (where
the Court of Appeals for the Federal Circuit (“CAFC”) affirmed this Court’s decision to
uphold the determination by the U.S. Customs Service (“USCS,” the agency
predecessor to Customs) that the merchandise of plaintiff Amoco was not “commingled
goods”); see also General Note 3(f). In Amoco Oil, Amoco imported a mixture of center-
cut natural gas liquids (NGLs) and propane (“Amoco Mixture”). Amoco Oil Co. at 1577-
1578. NGLs and propane each received duty-free treatment under the predecessor to
the HTSUS, the Tariff Schedule of the United States (“TSUS”). 9 Amoco argued that the
Amoco Mixture was “commingled goods” under General Heading 7 (the TSUS
equivalent to General Note 3(f)) and subject to classification under either heading. 10
Instead, the USCS classified the Amoco Mixture under TSUS 430.00, which covered
9 Under the TSUS, propane was classified under Heading 475.15 and NGLs under
475.70.
10 TSUS, General Heading 7, stated as follows:
“7. Commingling of articles:
(a) Whenever articles subject to different rates of duty are so packed
together or mingled that the quantity or value of each class of articles 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 … the commingled articles shall be subject to the
highest rate of duty applicable to any part thereof unless the consignee or
his agent segregates the articles pursuant to subdivision (b) hereof.
…
(e) The provisions of this headnote shall apply only in cases where the
schedules do not expressly provide a particular tariff treatment for
commingled articles.”
Court No. 16-00013 Page 18
“mixtures of two or more organic compounds.” This provision carried a duty rate of 5
percent ad valorem.
The CAFC found that by the terms of General Heading 7, the Amoco Mixture
could not be “commingled goods” because the “highest rate rule is applicable only
where articles subject to different rates of duty are commingled.” Id. at 1580.
Additionally, the CAFC noted “that case law supports the conclusion that where
merchandise is determined to be a mixture, the commingling headnote does not apply.”
Id. Therefore, Amoco Oil suggests that a mixture of two goods, provided for in a
specific tariff provision, is an example of a “particular tariff treatment.”
Plaintiff asserts that “[a] tariff heading that requires massive amounts of clothing
with uncertain quantities to be mixed together in a specific type of packaging qualifies
as a ‘particular’ treatment for commingled goods.” Pl. Br. at 29. Plaintiff finds it
significant that importers have “no choice” in packaging if they want their merchandise
to enter duty-free under Heading 6309. Id. Plaintiff seeks to differentiate Heading 6309
from other headings pertaining to articles of clothing by pointing out that no other
articles classified under Chapters 61 or 62 are required to be entered “in bales.” Id.Defendant offers two points in response. First, defendant argues that the “in
bales” language is a packaging requirement, not a tariff treatment. Def. Reply Br. at 13.
Defendant adds that “a packaging requirement does not dictate that all goods in the
same package receive the same tariff treatment.” Id. Second, defendant notes that the
packaging requirement in Heading 6309 is the second of two requirements for
classification under that Heading. Id. Defendant argues that “to apply [Chapter] Note 3
in the manner that plaintiff suggests would eviscerate the first independent
Court No. 16-00013 Page 19
requirement,” id.: viz., that every article “show signs of appreciable wear.” Chapter
Note 3(i). In other words, defendant argues that plaintiff’s reading would lead to the
result that any clothing, so long as it was imported “in bales,” would be eligible for duty-
free treatment, regardless of whether the clothing showed “signs of appreciable wear.”
The court determines that the requirement that an article be entered “in bales”
and by weight is not a “particular tariff treatment.” The HTSUS contains other tariff
provisions that include packing requirements, which, similarly, do not constitute a
particular tariff treatment.11 Conversely, the HTSUS contains particular tariff
treatments. 12 Finally, if the “in bales” requirement of Heading 6309 were treated as a
“particular tariff treatment” within the meaning of General Note 3(f)(v), that treatment
would render the first requirement of Heading 6309 — that the articles “show signs of
appreciable wear” — a nullity, contrary to basic precepts of statutory interpretation.13 In
conclusion, “worn clothing” under Heading 6309 is merchandise that complies with the
11 For example: subheading 1604.14.40, “Prepared fish…tunas, skipjack, and
bonito…In bulk or in immediate containers weighing with their contents over 6.8 kg
each…”; subheading 1806.20.20, “Chocolate and other food preparations containing
cocoa…Other preparations in blocks, slabs or bars, weighing more than 2 kg or in
liquid, paste, powder, granular or other bulk form in containers or immediate packings,
of a content exceeding 2 kg … In blocks or slabs weighing 4.5 kg or more each;” and,
subheading 0804.30.20, “Pineapples, fresh or dried, not reduced in size: in bulk.”
12 At Oral Argument, defendant offered “mixed vegetables” in subheading 0712.90.85
and “mixed nuts” in subheading 0813.50.00 as examples of items that could be
considered “commingled goods” under General Note 3(f), but are not, because
particular tariff provisions are provided for these items in the HTSUS. Recording of Oral
Argument at 25:15-26:01.
13 “The cardinal principle of statutory construction is to save and not to destroy. It is our
duty to give effect, if possible, to every clause and word of a statute….” United States v.
Menasche, 348 U.S. 528, 538-539 (1955) (internal citations and quotations omitted).
See also “The rules of statutory construction require a reading that avoids rendering
superfluous any provision of a statute.” Ishida v. United States, 59 F.3d 1224, 1230
(Fed. Cir. 1995) (internal citation omitted).
Court No. 16-00013 Page 20
three requirements of Chapter Note 3, including the above definition of “appreciable
wear.”
III. Classification of the Subject Merchandise
The subject merchandise is comprised of 443 bales of secondhand clothing. Pl.
Br. at 2. There are 41 samples in the court’s possession. It is not disputed that the
subject merchandise is comprised of articles of textile materials or the specified
footwear or headgear as required under Chapter Note 3. It is also not disputed that the
subject merchandise arrived “in bales,” under Chapter Note 3(ii). Classification,
therefore, of the subject merchandise hinges on the requirement of Chapter Note 3(i) —
whether the samples of the subject merchandise “show signs of appreciable wear.”
A. Customs’ Rulings and Guidance Pertaining to “Show Signs of
Appreciable Wear” Are Inconsistent with Heading 6309
The court defined “appreciable wear” as noticeable damage or impairment
caused by use. See supra Section II.A. In this case, Customs’ determination of
whether the samples “show signs of appreciable wear” “was based, in part, on a review
of Customs rulings, including rulings interpreting heading 6309….” Answer, ECF No. 23
¶ 39. In particular, on June 3, 2013, Customs issued a Notice of Action advising plaintiff
that Customs was relying on several past Customs and USCS rulings, including
HQ960577, HQ967718, HQ968010 and HQ967814:
Review of samples from entry AFP-1304309-5 and Headquarters rulings
HQ960577, HQ967718, HQ968010 and HQ967814, revealed that the
merchandise imported does not meet the requirements of appreciable wear in
order to be classified under HTS 6309.00.0010/Free. The imported garments are
classifiable under Chapter 61 or 62. The commingled garments are subject to the
appropriate provision of Chapter 61 or 62 for which the highest duty rate applies.
The entries will be liquidated at the highest duty rate of the commingled goods
under HTS 6204.63.3510 at 28.6%.
Court No. 16-00013 Page 21
Second Amended Compl. ¶ 21. 14
In HQ 960577 (the “1998 ruling”), the USCS explained “appreciable wear” as
follows: “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.” Customs Ruling Letter, HQ 960577 (Aug. 7,
1998) ("1998 ruling”) at 9. In the 1998 ruling, USCS reviewed 16 garments in an
attempt to provide guidance for importers regarding what merchandise qualifies for
classification within Heading 6309. Fourteen of the garments were determined to not
have “appreciable wear” because they did not “exhibit fabric which is greatly stressed or
fabric which reflects the physical deterioration resulting from continued use.” Id. at 11.
The 1998 ruling by the USCS is inconsistent with Heading 6309 because, as
settled in Section II, the definition for the first component of “wear” is “damage or
impairment.” Damage or impairment within the meaning of Heading 6309 may include
“fabric which is greatly stressed or fabric which reflects physical deterioration resulting
from continued use”; however, neither of those elements — greatly stressed fabric, or
fabric reflecting physical deterioration resulting from continued use — is necessary to
find “damage or impairment” within the meaning of Heading 6309.
Heading 6309 and Chapter Note 3 also do not require that the damage or
impairment occur only to a garment’s fabric to meet the definition of “appreciable wear.”
14 See also “Admits that plaintiff correctly quotes portions of the CBP Form 29, Notice
of Action, issued on June 3, 2013; however, avers that the CBP Form 29, Notice of
Action speaks for itself and is the best evidence of what is provided therein.” Answer ¶
21.
Court No. 16-00013 Page 22
The language of Heading 6309 and Chapter Note 3 permit the possibility that damage
to something other than fabric can comprise “appreciable wear.” As defendant
conceded at Oral Argument, the damage may be to any part of the garment—not only
the fabric. 15 With respect to the second component of “wear” — how the damage or
impairment came to be — “use” is the appropriate definition, not “resulting from
continued use” as offered by the 1998 ruling. 1998 ruling at 9 (emphasis supplied). As
shown, the “practical understanding” of “appreciable wear” that USCS offers in the 1998
ruling is not supported by the Heading or Chapter Note 3.
The 1998 ruling has informed Customs’ treatment of secondhand clothing for
more than two decades and has been in force and applied by subsequent rulings and
guidance. HQ967718 and HQ967814 in 2005, and HQ 968010 in 2006 relied heavily
on the 1998 ruling. The 1998 and 2006 rulings also culminated in guidance issued in
2014 by Customs. This guidance, addressed by both parties in this action, provides (in
relevant part):
Heading 6309 in the Harmonized Tariff Schedule (HTS) allows previously worn
clothing entering the U.S. to enter free of duty. However, most shipments of
“used clothing” imported commercially for sale would not be eligible for the
provision 6309. In order to qualify for the provision 6309, the goods must show
clear signs of appreciable wear (be in poor condition) and must be entered in
bulk or in bales, sacks or similar packing. The assumption is that clothing
imported under this provision will most likely be used as rags or other non-
apparel purpose.
Pl. Br. Exhibit A (emphasis supplied).
This guidance has been in effect for a number of years. Defendant stated that
the guidance was posted in several different places. Defendant also asserted that the
15
“We don’t contend that the damage has to be to the fabric, the damage from the
continued use has to be to the article.” Recording of Oral Argument at 37:38-37:45.
Court No. 16-00013 Page 23
guidance was intended to be removed “several years ago." Recording of Oral
Argument at 48:27 – 50:55. However, defendant further stated that, as of February 21,
2020, the guidance remained posted. Id. 16
The court determines that the 2014 guidance is inconsistent on its face with
Heading 6309. In fact, Customs’ guidance meets the definition of an entirely different
provision of the HTSUS, Heading 6310. Heading 6310 covers “used or new rags… and
worn out articles of twine, cordage, rope or cables, of textile materials.” In short,
Customs has been erroneously applying Heading 6309 for at least 22 years, including
as represented in the 1998 and 2006 rulings and in the 2014 guidance.
B. Subject Merchandise as “Commingled Goods”
As discussed in Section II.B, above, General Note 3(f) sets out the general rule
for “commingled goods.” General Note 3(f) requires that the goods are: (1) “subject to
different rates of duty;” (2) “so packed together or mingled;” and, (3) that the “quantity or
value of each class of goods cannot be readily ascertained by … (A) sampling, (B)
verification of packing lists ….” If these conditions are met, “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.”
In the instant case, at least two of the three requirements are met. The court will
address requirements (2) and (3) at the outset. The court determines that the subject
merchandise is “so packed together or mingled” — having arrived in 100-pound and
16Defendant stated at Oral Argument that defendant removed the guidance in February
2020. Defendant also sought to emphasize that, from its perspective, this guidance
does not represent the position of the Government, notwithstanding that it remained in
place until February 2020. Id.
Court No. 16-00013 Page 24
1000-pound bales, whether the bales were “loosely packed” or “compressed” — as to
not be segregable. The court further establishes that the “quantity or value of each
class of goods cannot be readily ascertained” because the subject merchandise may be
composed of a potentially voluminous number of classes. The subject merchandise is
composed of articles that if determined not to be “worn clothing” under Heading 6309,
are properly classified under various provisions in Chapters 61 or 62, which carry
varying rates of duty based on the type of garment and the type of fabric. See Def. Br.
at 28-29.
With respect to the first requirement, it is possible that some of the samples of
the subject merchandise may be classifiable at different duty rates. However, because
Customs misapplied Heading 6309 and Chapter Note 3 to the samples, a determination
with respect to this requirement would be premature. Therefore, a determination as to
whether the subject merchandise comprises “commingled goods” is also premature.
IV. Remedy
The Court "may order such further administrative or adjudicative procedures as
the court considers necessary to enable it to reach the correct decision." 28 U.S.C. §
2643(b). See United States v. UPS Customhouse Brokerage, Inc., 34 CIT 96, 128, 686
F. Supp. 2d 1337, 1365-1366 (2010) (internal citations omitted) (holding that remand is
within the Court’s discretion and a case should be remanded “when doing so will assist
the Court in reaching the correct result”). In a civil action, the Court may order any form
of appropriate relief, including an order of remand. 28 U.S.C. § 2643(c)(1). “When an
administrative agency has made an error of law, the duty of the Court is to correct the
error of law committed by that body, and after doing so to remand the case to the
Court No. 16-00013 Page 25
agency so as to afford it the opportunity of examining the evidence and finding the facts
as required by law.” NLRB v. Enterprise Ass'n of Steam, 429 U.S. 507, 522 (1977)
(internal quotations and citations omitted). The reviewing court must ensure “not [to]
intrude impermissibly on the authority of the administrative agency by itself taking action
that implicates the agency's expertise and discretion.” Int'l Light Metals v. United
States, 279 F.3d 999, 1003 (Fed. Cir. 2002). Whether the Court should remand a case
to an administrative agency to correct an error of law “necessarily turns upon the
precise issues the reviewing court has decided and what questions remain for the
agency to decide on remand.” Id.The court determines that Customs committed an error of law in interpreting
Heading 6309 and Chapter Note 3. Accordingly, the court concludes that a remand to
Customs pursuant to 28 U.S.C. § 2643 is appropriate.
CONCLUSION
Upon meeting their new nanny, Mary Poppins, Jane and Michael Banks show
Mary Poppins the nursery and her new room. 17 Mary Poppins is wearing a long dress,
with an overcoat, a pink scarf and a hat with flowers. She is holding an umbrella and
carrying a large bag.
Michael notices Mary Poppins’ bag: “That's a funny sort of bag.”
Mary Poppins: “Carpet.”
Michael: “You mean to carry carpets in?”
Mary Poppins: “No. Made of.”
17Walt Disney’s MARY POPPINS (1964), based on the book series MARY POPPINS (1933 –
1962) by P. L. Travers (Pamela Lyndon Travers, OBE, born Helen Lyndon Goff).
Court No. 16-00013 Page 26
Jane: “This is your room, and there's a lovely view of the park.”
Mary Poppins: “Hmm. Well, it's not exactly Buckingham Palace. Still, it's clean.
Yes, I think it will be quite suitable. Just needs a touch here and there. Well, first things
first. I always say, the place to hang a hat is on a hat stand.” Mary Poppins pulls a six-
foot tall hat stand out of her bag whilst Jane and Michael stare in amazement, then peer
inside Mary Poppins’ empty bag and turn it upside down. “Ah! This will never do!”
Mary Poppins says, removing a small mirror from the wall. “I much prefer seeing all of
my face at the same time.” Mary Poppins pulls a large mirror out of her bag.
Michael, amazed again: “There — but there was nothing in it!”
Mary Poppins: “Never judge things by their appearance. Even carpetbags. I'm
sure I never do.” Mary Poppins pulls out a three-foot tall plant: “A thing of beauty is a
joy forever.” Michael, looking under the table on which Mary Poppins has placed her
bag, seeing nothing there. Mary Poppins pulls out a five-foot tall lamp, a pair of shoes
and jacket.
Michael to Jane: “We better keep our eye on this one.”
In this instant case, the court remands to Customs for it to keep its eye on the
subject merchandise and take the following steps in conformity with this decision: (1)
examine and apply Heading 6309 and Chapter Note 3 to the 41 samples of subject
merchandise to determine the appropriate classification of each sample; and, (2) if
Customs determines that the subject merchandise is “commingled goods” pursuant to
General Note 3(f), Customs shall then apply the highest rate of duty for any one of the
samples to the subject merchandise.
For the foregoing reasons, it is hereby
Court No. 16-00013 Page 27
ORDERED that consideration of the parties’ cross-motions for summary
judgment is stayed; it is further
ORDERED that this matter is remanded to Customs to determine the appropriate
classification and rate of duty in conformity with this decision; it is further
ORDERED that remand results are due within 90 days of the date of this
decision; it is further
ORDERED that any comments on the remand results shall be submitted within
30 days of the filing of the results; and it is further
ORDERED that any replies to the comments are due 15 days thereafter.
/s/ Timothy M. Reif
Timothy M. Reif, Judge
Dated: May 6, 2020
New York, New York