OT:RR:CTF:FTM H333371 KRM
Center Director
Consumer Products & Mass Merchandising
Center of Excellence and Expertise
U.S. Customs and Border Protection
1699 Phoenix Parkway, Suite 400
College Park, Georgia 30349
Attn: Ann Marie Vargas, Import Specialist; Darren W. Mackaly, Supervisory Import Specialist
Re: Application for Further Review of Protest No. 1401-22-107120; Applicability of Section 301 Trade Remedy on Certain Work Gloves
Dear Center Director:
The following is our decision regarding the Application for Further Review (AFR) of Protest No. 1401-22-107120, timely filed on December 7, 2022, by counsel on behalf of Greenbrier International Inc. (hereinafter “Protestant”), concerning the tariff classification of work gloves under the Harmonized Tariff Schedule of the United States (“HTSUS”) and the assessment of duties pursuant to Section 301(b) of the Trade Act of 1974 (“Section 301”).
FACTS:
The subject merchandise consists of “Tool Bench Hardware Touch Screen + Work Gloves (Item 300002).” The gloves are comprised of knit polyester fabric coated in polyurethane. Each knit glove is green with grey fingertips. The palm side of both gloves is coated with a light-colored application. The wrist section has rubber embedded in polyester yarns. The gloves do not have fourchettes. Protestant describes the gloves’ composition as 48% polyester, 45% polyurethane, 2% copper, 3% softening/acceleration agents, and 2% dyes/pigments. Protestant also states that the gloves are designed for enhanced grip.
A sample of the subject work gloves was sent to the U.S. Customs and Border Protection (CBP) laboratory for analysis. On June 8, 2023, the CBP Laboratory issued CBP Lab Report No. LA20230437S in which the lab determined that the sample gloves did not contain metallized yarn and were composed of approximately 76% textile and 24% plastic/rubber by weight.
On December 8, 2020, Protestant entered the merchandise as the “Tool Bench Hardware Touch Screen + Work Gloves (Item 300002)” under subheading 6116.10.65, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Gloves, mittens and knits, knitted or crocheted: Impregnated, coated or covered with plastics or rubber: Other: Without fourchettes: Other: Other.” As products of China classified under subheading 6116.10.65, HTSUS, unless specifically excluded, the subject merchandise was also subject to an additional 7.5 percent ad valorem rate of duty pursuant to U.S. Note 20 to Subchapter III, Chapter 99 for entries through December 31, 2020, under subheading 9903.88.15, HTSUS. On June 17, 2022, CBP liquidated the work gloves under subheading 6116.10.65, HTSUS, and subheading 9903.88.15, HTSUS.
Protestant does not dispute CBP’s classification of the subject merchandise under subheading 6116.10.65, HTSUS. Instead, Protestant claims that the work gloves are excluded from the Section 301 duties because the work gloves are provided for in in subheading 9903.88.57, HTSUS. Specifically, Protestant alleges that the work gloves are not subject to the additional duties because the subject merchandise was previously classified under subheading 9903.88.57, HTSUS, in Protest No. 4601-22-130407, filed on January 31, 2022.
ISSUE:
Whether the subject work gloves fall within the scope of the Section 301 exclusion granted under U.S. note 20(jjj)(33) to Chapter 99, HTSUS, and corresponding subheading 9903.88.57, HTSUS.
LAW AND ANALYSIS:
A decision on the classification, rate, and amount of duties chargeable is a protestable matter under 19 U.S.C. § 1514(a)(2). The subject Protest was timely filed on December 7, 2022, within 180 days of liquidation, pursuant to 19 U.S.C. § 1514(c)(3). (Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii)-(iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 1401-22-107120 is properly accorded pursuant to 19 C.F.R. § 174.24(b), as Protestant has alleged that the decision against which the Protest was filed involves questions of law and fact that have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. Namely, Protestant alleges that the decision to liquidate under subheading 9903.88.15, HTSUS, is inconsistent with the scope of an exclusion to the Section 301 trade remedy, and in particular the requirement that the products under the exclusion contain “less than 50% by weight of textile fibers.”
Classification under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods will be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. If the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 will then be applied in order.
The 2020 HTSUS provisions under consideration are as follows:
6116 Gloves, mittens and knits, knitted or crocheted:
6116.10 Impregnated, coated, covered or laminated with plastics or rubber:
Other:
Without fourchettes:
6116.10.65 Other
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U.S. note 20(jjj)(33) to Chapter 99, HTSUS, provides as follows, in relevant part:
“The U.S. Trade Representative determined to establish a process by which particular products classified in heading 9903.88.15 and provided for in U.S. notes 20(r) and 20(s) to this subchapter could be excluded from the additional duties imposed by heading 9903.88.15. See 84 Fed. Reg. 43304 (August 20, 2019), 84 Fed. Reg. 45821 (August 30, 2019), 84 Fed. Reg. 57144 (October 24, 2019), and 85 Fed. Reg. 3741 (January 22, 2020). Pursuant to the product exclusion process, the U.S. Trade Representative has determined that, as provided in heading 9903.88.57, the additional duties provided for in heading 9903.88.15 shall not apply to the following particular products, which are provided for in the enumerated statistical reporting numbers: […]
(33) Gloves, containing less than 50 percent by weight of textile fibers, coated with rubber or plastics designed for enhanced grip (described in statistical reporting number 6116.10.6500)[.]”
* * *
As an initial matter, we note that there is no dispute concerning CBP’s classification of the subject merchandise under subheading 6116.10.65, HTSUS, which provides for “Gloves, mittens and knits, knitted or crocheted: Impregnated, coated or covered with plastics or rubber: Other: Without fourchettes: Other: Other.” We further note that products of China classified under subheading 6116.10.65 HTSUS, unless specifically excluded, are subject to an additional 7.5 percent ad valorem rate of duty under subheading 9903.88.15, HTSUS. See U.S. Note 20 to Subchapter III, Chapter 99.
To meet the exclusion to Section 301 provided for in U.S. note 20(jjj)(33) to Chapter 99, HTSUS, the products must be “[g]loves, containing less than 50 percent by weight of textile fibers, coated with rubber or plastics designed for enhanced grip (described in statistical reporting number 6166.10.6500).” Although the subject gloves are coated with polyurethane plastic and are designed for enhanced grip, satisfying the third and fourth criteria, we note that the CBP Laboratory found that the subject gloves are composed of approximately 76% textile and 24% plastic/rubber by weight. Therefore, consistent with the text of the exclusion, the subject product does not satisfy the requirement that the gloves contain less than 50 percent by weight of textile fibers.
Protestant argues that CBP should classify the subject merchandise in accordance with Protest Number 4601-22-13040. Yet, CBP specifically tested gloves from the entry in this protest. CBP Laboratory results carry a presumption of correctness: “It is well settled that the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.”? Aluminum Co. of America v. United States, 477 F.2d 1396, 1398 (C.C.P.A. 1973) (hereinafter Alcoa) (citations omitted).? Absent a conclusive showing that the testing method used by the CBP laboratory is in error, or that the CBP laboratory results are erroneous, there is a presumption that the results are correct.? See Exxon Corp. v. United States, 462 F. Supp. 378, 381-82 (Cust. Ct. 1978) (citations omitted).? “If a prima facie case is made out, the presumption is destroyed, and the Government has the burden of going forward with the evidence.”? Alcoa, 477 F.2d at 1399.
In the instant case, Protestant has not refuted CBP laboratory’s presumption of correctness. Absent a conclusive showing that CBP’s laboratory results are erroneous, we find that in accordance with CBP Laboratory Report No. LA20230437S, the subject entry is 76 percent textile by weight. As such, the work gloves at issue here do not fall within the scope of the exclusion to Section 301 provided for in U.S. Note 20(jjj)(33) to Chapter 99, HTSUS, because the products must be “less than 50 percent by weight of textile fibers.” Accordingly, we hold that the subject merchandise was properly classified under subheading 6116.10.65, HTSUS, and is subject to the additional Section 301 duties of subheading 9903.88.15, HTSUS.
HOLDING:
By application of GRI 1, the subject work gloves are classified under subheading 6116.10.65, HTSUS, which provides for “Gloves, mittens and mitts, knitted or crocheted: Impregnated, coated or covered with plastics or rubber: Other: Without fourchettes: Other: Other.” The column one, general rate of duty is 7 percent ad valorem.
Furthermore, the work gloves at issue are subject to the additional Section 301 duties of subheading 9903.88.15, HTSUS, provided for in U.S. Note 20 to Subchapter III, Chapter 99, HTSUS. The work gloves are not eligible for the exclusion from Section 301 duties under U.S. note 20(jjj)(33) to Chapter 99, HTSUS, and corresponding subheading 9903.88.57, HTSUS.
You are instructed to DENY IN PART the protest. With regard to the Tool Bench Hardware Touch Screen + Work Gloves (Item 300002), the protest should be denied. You are instructed to notify the protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division