H330005

 HQ H330005 February 20, 2024 OT:RR:CTF:CPMMA H330005 NAH CATEGORY: Classification TARIFF NO.: 8215.20.0000; 8215.99.5000 Center Director Consumer Products and Mass Merchandising Center of Excellence and Expertise U.S. Customs and Border Protection Attn: Bradley M. Clemence, Import Specialist RE: Request for Further Review of Protest Number 3002-21-103548; Tariff classification of and Applicability of Section 301 Trade Remedy to BBQ Tools. Dear Center Director, This is in reply to the Application for Further Review (“AFR”) of Protest No. 3002-21-103548, filed on April 5, 2021, by Target General Merchandise, Inc. (“Protestant”), contesting U.S. Customs and Border Protection’s (“CBP”) classification of “BBQ Tools” from China under the Harmonized Tariff Schedule of the United States (“HTSUS”) and the application of certain Section 301 trade remedies. The subject merchandise includes 4 sets of “BBQ Tools” that were entered between December 8, 2019, and March 8, 2020, in subheading 8215.20.0000, HTSUSA (“Annotated”), which provides for “Spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter-knives, sugar tongs and similar kitchen or tableware; and base metal parts thereof: Other sets of assorted articles” and subheading 9903.88.37, HTSUS, as a product of China. Between December 8, 2019, and March 8, 2020, the Port of Tacoma, WA, liquidated the subject entries under subheadings 8215.20.0000, 8215.99.5000, and 9903.88.03, HTSUS. At the time of liquidation, no 301 trade remedies, such as found in 9903.88.37, HTSUS, were applied to the subject merchandise classified under subheading 8215.20.0000, HTSUSA. FACTS: The products at issue are grill tool sets that appear in four variations: The first set, referred to as the SS Tool Set 3pc – Room Essentials (item 009-06-1139), consists of tongs, a spatula, and a three-prong fork. Each component of the set has a ring on the end for hanging and the handle is covered in a black silicon. The ends for interacting with food are steel. The second set, referred to as the SS Tool Set 7pv – Room Essentials (item 009-06-1161), consists of four skewers, a three-prong fork, a spatula, and tongs. Each component has a ring on the end for hanging and the handles of the fork, spatula, and tongs are covered in wood. The ends for interacting with food and the entirety of the skewers are steel. The third set, referred to as the Char-Broil 2pc Medallion Grill Tool Set Stainless Steel (item 009-06-8150), consists of a spatula and tongs. Each component of the set has a ring on the end for hanging and the handle is covered in a black silicon. The ends for interacting with food are steel. Additionally, the spatula has a serrated side designed for cutting food. The fourth set, referred to as the 3pc Americana Grill Set Red – Sun Squad (item 009-09-1709), consists of a three-prong fork, tongs, and a spatula. Each component of the set has a ring on the end for hanging and the handle is covered in a red silicon. The ends for interacting with food are steel except for the tongs which are covered in red silicon. The protested merchandise consist of ten entries that were entered at the Port of Tacoma, Washington, (“Port”) between December 8, 2019, and March 8, 2020, and were liquidated between November 6, 2020, and January 29, 2021, under the following subheadings: 8215.20.0000, HTSUSA, as “Spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter-knives, sugar tongs and similar kitchen or tableware; and base metal parts thereof: Other sets of assorted articles”; 8215.99.5000, HTSUSA, as “Spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter-knives, sugar tongs and similar kitchen or tableware; and base metal parts thereof: Other: Other: Other (including parts)”; and 9903.88.03, HTSUS, as “articles the product of China, as provided for in U.S. note 20(e) to this subchapter and as provided for in the subheadings enumerated in U.S. note 20(f).” The Protestant filed this Protest and AFR on April 5, 2021, asserting that the subject merchandise, classified under subheading 8215.20.0000, HTSUSA, should have 301 remedies applied as stipulated under 9903.88.37, HTSUS, as “articles the product of China . . . each covered by an exclusion granted by the U.S. Trade Representative.” ISSUE: Whether the subject articles are entitled to a Section 301 exclusion as flatware? LAW AND ANALYSIS: Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. See 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. 3002-21-103548 is properly accorded pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve a question of law or fact that has not previously been ruled upon by CBP or the courts. The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that 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 may then be applied in order. In this case, the 2019 HTSUS headings under consideration are as follows: 8215 Spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter-knives, sugar tongs and similar kitchen or tableware. 8215.20 .0000 Other sets of assorted articles. Other: 8215.99 Other: 8215.99.5000 Other (including parts). 9903.88.03 Except as provided in headings 9903.88.13, 9903.88.18, 9903.88.33, 9903.88.34, 9903.88.35, 9903.88.36, 9903.88.37, 9903.88.38, 9903.88.40, 9903.88.41, 9903.88.43, 9903.88.45, 9903.88.46, 9903.88.48, 9903.88.56, 9903.88.64, 9903.88.66, 9903.88.67 or 9903.88.68, articles the product of China, as provided for in U.S. note 20(e) to this subchapter and as provided for in the subheadings enumerated in U.S. note 20(f) 9903.88.37 Articles the product of China, as provided for in U.S. note 20(pp) to this subchapter, each covered by an exclusion granted by the U.S. Trade Representative * * * * * Note 3 to Chapter 82 states in pertinent part: 3. Sets consisting of one or more knives of heading 8211 and at least an equal number of articles of heading 8215 are to be classified in heading 8215. Additional U.S. Notes to Chapter 82 state in pertinent part: 1. The provisions in this chapter which specifically refer to kitchen or tableware include articles of types which are used outdoors as well as those which are used indoors. *** 3. For the purposes of determining the rate of duty applicable to sets provided for in heading 8205, 8206, 8211 or 8215, a specific rate of duty or a compound rate of duty for any article in the set shall be converted to its ad valorem equivalent rate, i.e., the ad valorem rate which, when applied to the full value of the article determined in accordance with section 402 of the Tariff Act of 1930, as amended, would provide the same amount of duties as the specific or compound rate. Statistical Notes to Chapter 82 state in pertinent part: 1. For the purposes of statistical reporting of sets in heading 8205, 8206, 8211 or 8215, the number of pieces reported shall be the total number of separate pieces in the set(s). U.S. note 20(pp) to 9903.88.37, HTSUS, states in pertinent part: The U.S. Trade Representative determined to establish a process by which particular products classified in heading 9903.88.03 and provided for in U.S. notes 20(e) and (f) to this subchapter could be excluded from the additional duties imposed by heading 9903.88.03, and by which particular products classified in heading 9903.88.04 and provided for in U.S.

Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. See 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. 3002-21-103548 is properly accorded pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve a question of law or fact that has not previously been ruled upon by CBP or the courts. The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that 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 may then be applied in order. In this case, the 2019 HTSUS headings under consideration are as follows:8215 Spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter-knives, sugar tongs and similar kitchen or tableware.8215.20 .0000 Other sets of assorted articles. Other:8215.99 Other:8215.99.5000 Other (including parts).9903.88.03 Except as provided in headings 9903.88.13, 9903.88.18, 9903.88.33, 9903.88.34, 9903.88.35, 9903.88.36, 9903.88.37, 9903.88.38, 9903.88.40, 9903.88.41, 9903.88.43, 9903.88.45, 9903.88.46, 9903.88.48, 9903.88.56, 9903.88.64, 9903.88.66, 9903.88.67 or 9903.88.68, articles the product of China, as provided for in U.S. note 20(e) to this subchapter and as provided for in the subheadings enumerated in U.S. note 20(f)9903.88.37 Articles the product of China, as provided for in U.S. note 20(pp) to this subchapter, each covered by an exclusion granted by the U.S. Trade Represen