CLA-2 RR:TC:TE 957768
Tariff No.: 9705.00.0090
Port Director
300 South Ferry St.
Terminal Island, CA 9073 1
RE: Application for Further Review of Protest No.2720-94-101337, concerning the classification of wearing apparel from Indonesia
Dear Port Director:
This is a decision on a protest filed December 8, 1994, against your decision on the classification and liquidation of an entry of wearing apparel from Indonesia.
FACTS:
The merchandise at issue was liquidated under subheading 6309.00.0010, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for worn clothing and other worn articles. The rate of duty for this provision in 1994 was 1.8 percent ad valorem. Protestant_ asserts that the articles should have been classified as collectors' pieces of ethnographic interest under subheading 9705.00.0090, HTSUSA, which is a duty free provision under the general column one rate.
The subject articles are identified by the Protestant as 24 pieces of textile articles indicative of the Indonesian culture. Protestant further describes the pieces as being between 50 to 100 years old. Protestant claims that these articles of wearing apparel are representative of human activity and have a beating on the study of activities, customs and characteristics of Indonesian culture.
ISSUE:
Whether the subject articles are properly classified as "worn clothing" under heading 6309, HTSUSA, or as "collectors' pieces" of ethnographic interest under heading 9705, HTSUSA.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA, is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN' s), 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's.
The competing provisions of the HTSUSA which have been asserted as the correct classification for these items are "worn clothing and worn textile articles" under heading 6309, and "collectors' pieces" under heading 9705, HTSUSA. It is first necessary to determine whether or not the articles are classifiable in Chapter 97, HTSUSA, because Note 4(a) to Chapter 97, HTSUSA, states as follows:
4. (a) Subject to notes 1 through 3 above, articles of this chapter are to be
classified in this chapter and not in any other chapter of the tariff schedule.
The EN's to 9705 indicate that "Collections and collectors' pieces of historical, ethnographic, palaeontological or archaeological interest" may include articles of apparel suitable for the study of the activities of earlier generations. Based on the description provided it appears that the items at issue are, in fact, Indonesian textile garments between 50 - 100 years old. Thus, it would seem that, in spite of their contemporary design, the garments may provide information regarding human activity of the Indonesian culture from an earlier generation, albeit, from a fairly recent historical perspective.
While it is clear from the record that these garments are indeed "old" or "used" pieces of wearing apparel, it is our determination that they are classifiable as "collector's pieces" under Ch. 97 and not as "worn clothing" under Ch. 63, HTSUSA. The EN's to heading 6309 clearly indicate that "worn clothing" is normally traded in large consignments, usually for resale, which tends to be less carefully packaged than is generally the case with new articles. This language suggests that such clothing is usually traded on consignment in very large quantities because of it's diminished commercial value. Expensive shipping and packaging charges would not be cost-effective for such merchandise. The instant case involves only 24 textile items for which a significant mount of money was paid at the time of acquisition. There is nothing in the record which would indicate that these items were acquired on a "consignment basis," i.e., where the dealer would pay for only what is sold and return the unsold items.
It is also clear from the record that the Protestant is highly regarded as a leading authority on ethnographic textiles and has been an important commercial resource for several museums who collect and display such items. In particular, we have noted a letter dated January 30, 1995, from the Director of the Museum of New Mexico in which she states that after reviewing the articles in question she believes that according to the standards applicable to museums displaying such items, the subject textiles are all of ethnographic value.
HOLDING:
The Indonesian textile articles are properly classified in subheading 9705.00.0090, HTSUSA, the provision for "Collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic or numismatic interest; Other," which is duty free at the general column one rate.
Since reclassification of the merchandise as indicated above will result in a refund to the Protestant, you are instructed to allow the protest in full. A copy of this decision should be attached to the Form 19 Notice of Action.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Diskette Subscription Service, Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division