CIT Finds Used Clothing Shipment Commingled, Subject to Highest Duty Rate

The Court of International Trade ruled that a shipment of 443 bales of secondhand clothing imported by DIS Vintage should be classified as “commingled goods” and subject to the “highest rate of duty for any part thereof,” siding with the government in a May 17 opinion. Judge Timothy Reif, after a government analysis of 41 samples of the subject merchandise, determined that nine weren't classified under Harmonized Tariff Schedule subheading 6309 as “worn clothing and other worn articles” since they had no visible signs of appreciable wear.

The court previously ruled on the question of what it means to "show signs of appreciable wear," but hadn't yet weighed in on the correct classification of the entire bales. DIS Vintage in the case attempted to argue that all the entries of secondhand clothing belonged under HTS subheading 6309 and were thus duty-free.

To determine whether the clothes were worn, the court reviewed the sample entries for signs of appreciable wear. Considerations for such wear include loose threads, faded designs, frayed hems, etc. on the clothing. Among the nine found not classifiable as worn, three are classified in a subheading with a 16.6% duty rate. The 16.6% duty rate is the highest rate for any article, which means the whole bale must be classified at that rate, Reif said.

Also under consideration was DIS Vintage's alternate argument that said that if the court rules that the entries are commingled, the shipment should not be granted the highest rate of duty for any part because the importer did not have an opportunity to address the issue of commingling. The judge shot down this claim. “The court concludes that plaintiff’s additional argument will not help the court classify the subject merchandise correctly, and, therefore, the court declines to consider the argument,” Reif said.

(Dis Vintage LLC v. United States, Slip Op. 21-61, CIT # 16-00013, dated 05/18/21, Judge Reif. Attorneys: Peter Herrick for plaintiff Dis Vintage LLC; Monica Triana for defendant U.S. government)