Aris Gloves, Inc. v. United States, C.D. 2185

• Decision Date: 09 June 1960
• Docket Number: Protest No. 187094-K.,C.D. 2185
• Citation: 188 F. Supp. 50
• Court: U.S. Court of Customs and Patent Appeals (CCPA)
• Parties: ARIS GLOVES, INC. v. UNITED STATES.

188 F. Supp. 50

ARIS GLOVES, INC. v. UNITED STATES.

C.D. 2185, Protest No. 187094-K.

United States Customs Court, First Division.

June 9, 1960.

Mary Rehan, Brooks & Brooks, New York City, Associate Counsel (Thomas J. McKenna, New York City, of counsel), for plaintiff.

George Cochran Doub, Asst. Atty. Gen. (Richard E. FitzGibbon, Trial Atty., New York City), for defendant.

Before OLIVER, MOLLISON, and WILSON, Judges.

MOLLISON, Judge.

The plaintiff in this case imported into the United States certain women's leather gloves, under 12 inches in length, unlined, and not trimmed with fur, partly hand and partly machine seamed, and not overseamed, on which the collector took duty at the rate of 35 per centum ad valorem under the provisions of paragraph 1532(a), Tariff Act of 1930, 19 U. S.C.A. § 1001, par. 1532(a), as modified by the Presidential proclamation relating to the Torquay Protocol to the General Agreement on Tariffs and Trade, T.D. 52739.

The protest claim is for duty at the rate of 25 per centum ad valorem under the provisions of paragraph 1532(a), supra, as modified by the Presidential proclamation relating to the General Agreement on Tariffs and Trade, T.D. 51802. It is the plaintiff's contention that the duty increase provided by the Torquay protocol and the Presidential proclamation relating thereto on leather gloves of the kind here involved was a nullity because a condition precedent to the lawful negotiation of a trade agreement with respect to such duty was not complied with. The condition precedent referred to is that required by section 4 of the Trade Agreements Act of 1934, as amended (19 U.S.C.A. § 1354), and paragraph 5 of Executive Order No. 10082 (14 F.R. 6105), 19 U.S.C.A. § 1351 note, with respect to the giving of reasonable public notice to interested parties of an opportunity to present their views to the Committee for Reciprocity Information, the agency designated by the President to receive such views, concerning the articles or products as to which it was proposed to conduct trade agreement negotiations.

An account of the background of the situation presented by the present case may be helpful in understanding the matter.

As originally enacted, paragraph 1532 (a) of the Tariff Act of 1930 provided for certain duties in addition to the basic duties therein prescribed on gloves "When machine seamed, otherwise than overseamed," and "when seamed by hand." The duties with respect to women's gloves, when seamed by hand, were reduced by the Presidential proclamation relating to the French Trade Agreement, T.D. 48316, and those with respect to gloves, when machine seamed, were reduced by the Presidential proclamation relating to the Czechoslovakian Trade Agreement, T.D. 49458.

Litigation arose as to the status of gloves, partly seamed by hand and partly machine seamed, and, in the case of United States v. Aris Gloves, Inc., 31 CCPA 169, C.A.D. 268, it was held that if a glove had not first been made into a completed glove by one or the other types of seaming, i. e., where part of the seaming which made the article into a glove was by hand and the other part was by machine, the provisions of neither trade agreement modification applied, and such gloves were held to be properly classifiable under the provisions in paragraph 1532(a), supra, as unmodified, and dutiable only according to the basic duty applicable thereto, without the additional duties imposed by reason of hand or machine seaming.

Although there were some changes in language and rates, essentially the same tariff situation as to women's leather gloves, seamed partly by hand and partly by machine, obtained upon the proclamation by the President relating to the General Agreement on Tariffs and Trade, T.D. 51802, and the provisions of paragraph 1532(a), as modified by that proclamation under which the plaintiff in this case claims, read as follows:

                    ----------------------------------------------------------------
                    Tariff    |                                      |
                    Act of    |        Description of Products       | Rate of Duty
                    1930,     |                                      |
                    paragraph |                                      |
                    ----------|--------------------------------------|---------------
                    1532(a)   | Gloves made wholly or in chief value |
                              |  of leather, whether wholly or       |
                              |  partly manufactured:                |
                              |   *      *      *       *      *     |
                              |   Women's and children's gloves      |
                              |    not over twelve inches in         |
                              |    length .......................... | $5 per doz
                              |                                      |    pairs
                              |   *      *      *       *      *     |
                              |   Provided further, That the         |
                              |    foregoing shall be dutiable at    |
                              |    not less than the following       |
                              |    rates:                            |
                              |   *      *      *       *      *     |
                              |      If women's or children's        |
                              |        gloves:                       |
                              |   *      *      *       *      *     |
                              |              Other than machine     |
                              |              seamed or               |
                              |              hand seamed ..         | 25% ad val
                    -----------------------------------------------------------------
                

Prior to the importation of the gloves involved in this case, the United States entered into negotiations with the Governments which were contracting parties to the General Agreement on Tariffs and Trade, and other Governments, as the result of which the agreement known as the Torquay Protocol to the General Agreement on Tariffs and Trade was entered into. Part I of schedule XX annexed to the said protocol contains a list of the items relating to United States import duties as to which agreement had been made.

With respect to the items covered by paragraph 1532(a) of the Tariff Act of 1930, schedule XX of the Torquay protocol reads as follows:

                   ------------------------------------------------------------------
                   Tariff Act |                                        |
                    of 1930,  |      Description of Products           | Rate of Duty
                   paragraph  |                                        |
                   -----------|----------------------------------------|-------------
                    1532(a)   | Gloves made wholly or in chief         |
                    part    |   value of leather, whether wholly     |
                   (Geneva)   |   or partly manufactured:              |
                              |     *    *    *    *    *              |
                              |    Provided further, That the          |
                              |      foregoing shall be dutiable       |
                              |      at not less than the following    |
                              |      rates:                            |
                              |     *    *    *    *    *              |
                              |        If women's or children's        |
                              |          gloves:                       |
                              |     *    *    *    *    *              |
                              |            Other ......................| Withdrawn
                    1532(a)   | Gloves made wholly or in chief         |
                              |   value of leather, whether wholly     |
                              |   or partly manufactured, if women's   |
                              |   or children's (except machine        |
                              |   seamed gloves, not lined,            |
                              |   and not trimmed with fur, and except |
                              |   hand seamed gloves, not              |
                              |   lined, and not trimmed with fur),    |
                              |   shall be dutiable at not less than   |
                              |   the following rates:                 |
                              |      Seamed in part by hand and in     |
                              |        part by machine, not lined,     |
                              |        and not trimmed with fur:       |
                              |          Not over 12 inches long ......| 35% ad val
                              |          Over 12 inches long ..........| 30% ad val
                              |      Other ............................| 25% ad val
                              |                                        |
                   ------------------------------------------------------------------
                

By Presidential Proclamation No. 2929, of June 2, 1951 (reported in T.D. 52739), the President of the United States proclaimed that his earlier proclamation relating to the General Agreement on Tariffs and Trade (reported in T.D. 51802), was thereby terminated to the extent that, among other things, "items 1532(a) part (Geneva) and 1532(a), respectively" in part I of schedule XX annexed to the Torquay protocol, and hereinbefore quoted, should be applied, effective on and after July 6, 1951, with the modifications provided for in the said items as contained in the said schedule XX annexed to the Torquay protocol.

Section 4 of the Trade Agreements Act of 1934 (48 Stat. 943, as amended, 63 Stat. 698; 19 U.S.C.A. § 1354), as in force and effect at the time of the negotiation of the Torquay protocol, provided in part as follows:

"Before any foreign trade agreement is concluded with any foreign government or instrumentality thereof under the provisions of this Act, reasonable public notice of the intention to negotiate an agreement with such government or instrumentality shall be given in order that any interested person may have an opportunity to present his views to the President, or to such agency as the President may designate, under such rules and regulations as the President may prescribe; * * *."

Paragraphs 4 and 5 of Executive Order No. 10082, promulgated by the President under the foregoing authority, read as follows:

"4. Before entering into the negotiation of a proposed trade agreement under the Trade Agreements Act, as amended the Trade Agreements Committee shall submit to the President for his approval a list of all articles imported into the United States which it is

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