RUBIES COSTUME CO. v. UNITED STATES
Court No. 13-00407
United States Court of International Trade
October 31, 2017
Slip Op. 17-147
Before: Mark A. Barnett, Judge
UNITED STATES COURT OF INTERNATIONAL TRADE
RUBIES COSTUME CO., Plaintiff, v. UNITED STATES, Defendant.
Before: Mark A. Barnett, Judge
Court No. 13-00407
OPINION
[The court denies Plaintiff‘s motion for summary judgment and grants Defendant‘s cross-motion for summary judgment.]
Dated: October 31, 2017
Glenn H. Ripa, John A. Bessich, and Suzanne L. McCaffery, Follick & Bessich, of New York, NY, for Plaintiff.
Peter A. Mancuso, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, for Defendant. With him on the brief were Chad A. Readler, Acting Assistant Attorney General, and Amy M. Rubin, Assistant Director. Of Counsel on the brief was Michael W. Heydrich, Office of the Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection, of New York, NY.
Barnett, Judge: In this case, the court addresses the issue of the proper classification of a Santa Claus costume. Is it a “festive article” entitled to duty free treatment, or is it fancy dress, of textile, akin to wearing apparel, dutiable at the rates applicable to the particular parts of the costume? Application of classification principles in this case (the General Rules of Interpretation, which direct the court to apply the terms of the Harmonized Tariff Schedule, and relevant judicial precedent) leads to a finding that, while flimsy and non-durable costumes (whether for Halloween, Christmas,
Before the court are cross-motions for summary judgment. See Pl.‘s Mot. for Summ. J., ECF No. 28, and Mem. of Law in Supp. of Pl.‘s Mot. for Summ. J (“Pl.‘s MSJ“), ECF No. 28-1; Def.‘s Cross-Mot. for Summ. J. and Mem. in Supp. of Def.‘s Cross-Mot. for Summ. J (“Def.‘s XMSJ“), ECF No. 30. Plaintiff Rubies Costume Company (“Rubies” or “Plaintiff“) contests the denial of its protest challenging U.S. Customs and Border Protection‘s (“Customs” or “CBP“) classification of a multi-piece Santa Claus suit (“Santa Suit“). See Summons, ECF No. 1; Compl., ECF No. 5. Plaintiff contends the Santa Suit qualifies for duty free treatment as a “[f]estive, carnival or other entertainment article[]” (hereinafter referred to as a “festive article“) pursuant to
I. Material Facts Not in Dispute
The party moving for summary judgment must show “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” United States Court of International Trade (“USCIT“) Rule 56(a). Movants should present material facts as short and concise statements, in numbered paragraphs, and cite to “particular parts of materials in the record” as support. USCIT Rule 56(c)(1)(A); see also USCIT Rule 56.3(a)(“factual positions described in Rule 56(c)(1)(A) must be annexed to the motion in a separate, short and concise statement, in numbered paragraphs“). In responsive papers, the nonmovant “must include correspondingly numbered paragraphs responding to the numbered paragraphs in the statement of the movant.” USCIT Rule 56.3(b). Parties filed cross motions for summary judgment and submitted separate statements of undisputed material facts with their respective motions. See Pl.‘s Am. Statement of Material Facts Not in Dispute (“Pl.‘s SOF“), ECF No. 34; Def.‘s Statement of Undisputed Material Facts (“Def.‘s SOF“), ECF No. 30-1. Defendant also filed a response to Plaintiff‘s statement of facts. See Def.‘s Resp. to Pl.‘s Statement of Material Facts Not in Dispute (“Def.‘s Resp. to Pl.‘s SOF“), ECF No. 30-2. Plaintiff did not file a response to Defendant‘s statement of facts and has informed the court that it admits all of Defendant‘s factual assertions. See Notice from the Court (June 26, 2017), ECF No. 36. Parties also filed supplemental facts specific to the Santa Suit jacket. See Pl.‘s Resp. to the Court‘s Order of July 28, 2017 (“Pl.‘s Suppl. Br.“), Ex. 1 (CBP Lab Report NY20171073), ECF No. 40-1; Def.‘s Resp. to the
Rubies, a wholesale and retail costume company, is the importer of record of the subject Santa Suit. Pl.‘s SOF ¶¶ 1, 9; Def.‘s Resp. to Pl.‘s SOF ¶¶ 1, 9; see also Pl.‘s SOF ¶ 21; Def.‘s Resp. to Pl.‘s SOF ¶ 21 (subject merchandise is imported for domestic resale).3 The Santa Suit consists of a red jacket, pants, and hat, a black belt with a metal buckle, white gloves, black shoe covers, a white wig, and a Santa sack that are packaged together for retail sale as the “Premier Plush 9 Piece Santa Suit.” Def.‘s SOF ¶ 1. Only the jacket, pants, gloves, and sack are at issue in this case.4
The jacket and pants consist of 73% acrylic and 27% knit polyester material,5 and have sewn-in care labels stating that each item is “Dry Clean Only.” Id. ¶¶ 2, 3.
The Santa Suit has a wholesale price of USD 60-70 and a retail price of USD 100, which is considered “a mid-to-high price point.” Id. ¶ 24. It is “manufactured to be worn repeatedly during a single Christmas season” and “is intended to survive multiple wearings and cleanings” over several Christmas seasons. Id. ¶¶ 25-26. The Santa Suit
II. Procedural History
On June 20, 2012, Rubies sought a binding pre-importation ruling from Customs regarding the classification of the Santa Suit. See Def.‘s XMSJ, Ex. 2 (“HQ H237067“), ECF No. 30-4. On June 20, 2013, Customs issued its ruling. See generally HQ H237067. Relying on the Court of Appeals for the Federal Circuit‘s (“Federal Circuit“) opinion in Rubie‘s Costume Co. v. Unites States (“Rubie‘s II“),7 337 F.3d 1350 (Fed. Cir. 2003),8 and Customs’ informed compliance publication regarding the classification of textile costumes, Customs distinguished the “well-made” Santa Suit from the “flimsy costumes” it classifies as festive articles. HQ H237067 at 6-9.9 Accordingly, Customs determined that the jacket and pants are classifiable as “wearing apparel” under headings 6105 and 6103, respectively. Id. at 9. Customs further found that the gloves and sack are classifiable under headings 6116 and 4202, respectively. Id. at 9-10.
| Item | HTSUS Classification | Duty Rate |
|---|---|---|
| Jacket | 6105.20.20 | 32.0% ad valorem |
| Pants | 6103.43.15 | 28.2% ad valorem |
| Gloves | 6115.95.6010 | 10.0% ad valorem |
| Sack | 4202.92.30 | 17.6% ad valorem |
| Beard, Wig, Hat, Belt, and Shoe covers | 9505.90.60 | Free of Duty |
Pl.‘s SOF ¶ 4; Def.‘s Resp. to Pl.‘s SOF ¶ 4.
Rubies timely protested Customs’ classification of the subject merchandise; on December 14, 2013, that protest was deemed denied. Pl.‘s SOF ¶¶ 5-6; Def.‘s Resp. to Pl.‘s SOF ¶¶ 5-6; see also Summons at 1. Rubies challenges the denial of its protest. Parties have fully briefed the issues. The court now rules on the cross-motions for summary judgment.
The court has subject matter jurisdiction pursuant to
The court may grant summary judgment when “there is no genuine issue as to any material fact,” and “the moving party is entitled to judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); USCIT R. 56(a). The court‘s review of a classification decision involves two steps. First, it must determine the meaning of the relevant tariff provisions, which is a question of law. See Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1365 (Fed. Cir. 1998) (citation omitted); see also id. at 1366 (characterizing the first step as “constru[ing] the relevant (competing) classification headings“). Second, it must determine “what the merchandise at issue is,” which is a question of fact. Id. at 1366. When no factual dispute exists regarding the merchandise, summary judgment is appropriate and resolution of the classification turns solely on the first step. See id. at 1365-66; id. at 1365 (“The ultimate question in a classification case is whether the merchandise is properly classified under one or another classification heading,” which is “a question of law[] . . . because what is at issue is the meaning of the terms set out in the statute . . . .“) (citations omitted); see also Sigma-Tau HealthScience, Inc. v. United States, 838 F.3d 1272, 1276 (Fed. Cir. 2016) (citations omitted).
The court reviews classification cases on “the basis of the record made before the court.”
DISCUSSION
I. Legal Framework
The General Rules of Interpretation (“GRIs“) provide the analytical framework for the court‘s classification of goods. See N. Am. Processing Co. v. United States, 236 F.3d 695, 698 (Fed. Cir. 2001). “The HTSUS is designed so that most classification questions can be answered by GRI 1.” Telebrands Corp. v. United States, 36 CIT ___, ___, 865 F. Supp. 2d 1277, 1280 (2012), aff‘d, 522 F. App‘x 915 (Fed. Cir. 2013). GRI 1 states that, “for legal purposes, classification shall be determined according to thе terms of the headings and any [relevant] section or chapter notes.” GRI 1, HTSUS. The court considers chapter and section notes of the HTSUS in resolving classification disputes because they are statutory law, not interpretive rules. See Arko Foods Int‘l, Inc. v. United States, 654 F.3d 1361, 1364 (Fed. Cir. 2011) (citations omitted); see also Park B. Smith, Ltd. v. United States, 347 F.3d 922, 929 n. 3 (Fed. Cir. 2003) (chapter and section notes are binding on the court).
II. Competing Tariff Provisions
Plaintiff contends the Santa Suits are properly classified as festive articles under subheading 9505.10.50 or, alternatively, 9505.90.60. Pl.‘s MSJ at 2-3. Chapter 95 covers “Toys, Games, and Sports Requisites; Parts and Accessories thereof.” The asserted subheadings (and relevant legal notes) are as follows:
9505: Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
9505.10.50: Other ………………………………………………Free.
9505.90: Other:
9505.90.60: Other ……………………………………………….Free.
Pursuant to the chapter notes, “fancy dress, of textiles, of chapter 61 or 62,” are excluded from classification under Chapter 95.
Defendant contends the jacket, pants, and gloves are properly classified as articles of apparel pursuant to subheadings of Chapter 61, and the sack is properly classified pursuant to a subheading of Chapter 42. Def.‘s XMSJ at 1-2. Chapter 61 covers “Articles of Apparel and Clothing Accessories, Knitted or Crocheted.” Chapter 42 covers “Articles of Leather; Saddlery and Harness; Travel Goods, Handbags and Similar Containers; Articles of Animal Gut (other than Silkworm Gut).” The specific subheadings (and relevant legal notes) asserted by Defendant are as follows:
6103: Men‘s or boys’ . . . trousers, . . . breeches and shorts (other than swimwear), knitted or crocheted:
6103.43: Of synthetic fibers:
6103.43.15: Other …………………………..………….…28.2% ad valorem.
6105: Men‘s or boys’ shirts, knitted or crocheted:
6105.20: Of man-made fibers:
6116: Gloves, mittens and mitts, knitted or crocheted:
6116.93: Of synthetic fibers:
6116.93.94: Other: With fourchettes…………………….18.6% ad valorem.
4202: [T]traveling bags, . . . knapsaсks and backpacks, handbags, shopping bags, . . . sports bags, . . . and similar containers, . . . of textile materials, . . . or wholly or mainly covered with such materials . . . :
4202.92: Other: With outer surface of sheeting of plastic or of textile materials:
Travel, sports and similar bags: With outer surface of textile materials:
4202.92.30: Other ………………………….……………. 17.6% ad valorem.
Section XI, which includes Chapter 61, excludes “[a]rticles of chapter 95.”
The GRIs govern the proper classification of merchandise and are applied in numerical order. N. Am. Processing Co., 236 F.3d at 698. Pursuant to GRI 1, the court first “must determine the appropriate classification ‘according to the terms of the headings and any relative section or chapter notes’ . . . [with] terms of the HTSUS . . . construed according to their common commercial meaning.” Millenium Lumber Dist. Ltd. v. United States, 558 F.3d 1326, 1328-29 (Fed. Cir. 2009) (citations omitted).
A. Construction of Note 1(e) to Chapter 95
Pursuant to Note 1(e), “fancy dress, of textiles, of chapter 61 or 62,” is barred from classification under chapter 95.
The merchandise at issue in Rubie‘s II consisted of five textile costumes “traditionally worn [at] . . . Halloween or to costume parties.” Id. at 1352. They included a child-sized “Witch of the Webs” dress, “Pirate Boy” top and pants, and “Witch” dress, an adult-sized “Abdul, Sheik of Arabia” sheath, and a “Cute and Cuddly Clown” jumpsuit. Id. at 1352 & n.2. On June 2, 1997, in response to a request filed by Rubie‘s, Customs determined “that the ‘Cute and Cuddly Clown’ would be classified as ‘Babies’ garments and clothing accessories’ with a duty rate of 16.7 (now 16.1) percent ad valorem, while the other costumes . . . would be classified as ‘festive articles,’ requiring duty free entry.” Id. at 1352 (citing HQ 959545 (June 2, 1997)). Thereafter, Customs denied the Domestic Interested Party Petition filed by Rubie‘s, which asserted that the five textile costumes should be classified as wearing apparel, and affirmed its prior determination. Id. at 1352-53 (citing HQ 961447 (July 22, 1998) (“HQ 961447“)); see also supra note 8.
HQ 961447 reiterated the classification analysis that Customs had relied on for the decade prior to its issuance, tracing its origin to a case in this court styled as Traveler Trading Co. v. United States, 13 CIT 380, 713 F. Supp. 409 (1989). See HQ 961447 at 2; Rubie‘s II, 337 F.3d at 1353, 1358. In that case, Traveler Trading Co. (“Traveler“) sued the United States regarding Customs’ classification of “flimsy” adult textile costumes as “wearing apparel” under the predecessor to the HTSUS, the TSUS, rather than as “toys” as it classifies children‘s costumes. Traveler, 13 CIT at 380, 384,
A few years later, Traveler again sued the United States over Customs’ “classification of textile costumes as articles of ‘fancy dress’ excluded from classification in Chapter 95 [of the HTSUS].” HQ 961447 at 2 (citing Traveler Trading Co. v. United States, Court No. 91-02-00084). Customs subsequently determined that the court‘s opinion in Traveler and recent judicial opinions concerning relevant provisions of the HTSUS meant that it should “reexamine[] its view regarding the scope of the term ‘fancy dress’ as it relates to costumes.” HQ 961447 at 2 (noting that “Customs [initially] tоok the view that fancy dress included ‘all’ textile costumes regardless of quality, durability,
In later rulings, Customs identified certain characteristics that it would assess to determine whether an article was “of a flimsy nature and construction, lacking in durability, and generally [not] recognized as a normal article of apparel.” HQ 961447 at 4 (citations omitted) (identifying “zipper closures,” “abundant styling features such as a fitted bodice with darts,” “petal shaped panels sewn into a waistline,” and “sheer/decorative panels sewn into the seams of costumes” as indicative of fancy dress). Applying those characteristics to the merchandise at issue in Rubie‘s II, Customs determined that four of the five costumes were classifiable as festive articles. Id. (noting that those costumes “featured simple pull-on type garments with no zippers, inset panels, darts, or hoops,” and raw and unhemmed edges leaving the costumes “susceptible to runs and frays“). In contrast, the “Cute and Cuddly Clown” costume “was particularly well-constructed аnd had a substantial amount of finishing work (i.e., the sewing used to construct the article),” and did not have any raw edges. Id. For those reasons, Customs classified the Cute and Cuddly Clown costume as wearing apparel. Id.
On appeal to the USCIT, the court disagreed with Customs’ interpretation of Note 1(e). Rubie‘s I, 26 CIT at 210, 196 F. Supp. 2d at 1322. Citing several dictionary
The Federal Circuit reversed on the basis that HQ 961447 was sufficiently persuasive to be accorded Skidmore deference. See Rubie‘s II, 337 F.3d at 1356; Skidmore, 323 U.S. at 140. The Fеderal Circuit agreed with the lower court that “fancy dress” means “a costume (as for a masquerade or party) departing from conventional style and [usually] representing a fictional or historical character.” Rubie‘s II, 337 F.3d at 1356-57 (citing Rubie‘s I, 26 CIT at 216, 196 F. Supp. at 1327); see also id. at 1357 (“That the term ‘fancy dress,’ . . . includes costumes is plain enough . . . .“). According to the Federal Circuit, however, the lower court insufficiently analyzed the type of fancy dress excluded:
a reading of the exclusion in Note 1(e) to Chapter 95, HTSUS, that focuses solely on the term “fancy dress” and turns a blind eye to the immediately following words “of textiles, of chapter 61 or 62” construes the term fancy dress in disregard of the context of the exclusion as a whole. . . . The words in Note 1(e) “of textiles, of chapter 61 or 62” immediately following “fancy dress,” establish the context in which the term “fancy dress” is to be applied, and thereby circumscribe, qualify, and limit the type of “fancy dress” that was intended by the drafters to be excluded from Chapter 95, HTSUS, to textile costumes falling within the purview “of chapter 61 or 62.” Thus, . . . the exclusion to Chapter 95, HTSUS, encompasses textile costumes that are classifiable as “wearing apparel” under Chapter 61 or 62.
Id. (emphasis added). The Federal Circuit interpreted “wearing apparel” as “embracing all articles which are ordinarily worn—dress in general,” id. (quoting Arnold, 147 U.S. at 496), and “clothes or coverings for the human body worn for decency or comfort,” id.
“Cognizant of [those] definitions,” the Federal Circuit found HQ 961447 “logical and well-reasoned.” Id. The court determined that HQ 961447 correctly classifies as festive articles “flimsy, non-durable costumes having utility and used as well for festive occasions, based on functional or structural deficiencies as compared with the standard counterpart articles (e.g., wearing apparel).” Id. The court cited Customs’ identification of “the texture and quality of the materials as ‘flimsy and non-durable‘” suggesting that the textile costumes’ “principal intended use is for a one time festive occasion [which] [is] distinct from ‘wearing apparel’ which the courts have held to be used for decency, comfort, adornment or protection.” Id. (quoting HQ 961447) (second alteration added).17 Additionally, although the subject merchandise “may simulate the structural features of wearing apparel, and have some incidents of ‘clothes or coverings for the human body worn for decency or comfort,‘” id. at 1358 (quoting Antonio Pompeo, 40 Cust. Ct. at 364), “they are not practical ‘articles which are ordinarily worn,‘” id. (quoting Arnold, 147 U.S. at 496); see also id. (“[T]he Halloween costumes . . . have enormous ‘make believe’ or festive value . . . and incidentally afford the element of covering for decency or comfort.“). The Federal Circuit, therefore, was persuaded by Customs’ view
same criteria.19 Avenues in Leather, Inc. v. United States, 423 F.3d 1326, 1331 (Fed. Cir. 2005) (the Federal Circuit‘s interpretation of tariff terms are binding on this court).
B. Whether the Jacket and Pants are “Fancy Dress, of Textiles, of Chapter 61 or 62”
a. Parties’ Contentions
Plaintiff contends that the Santa Suit “is not well-made, and does not meet wearing apparel production standards.” Pl.‘s MSJ at 9.20 To support its contention, Plaintiff primarily relies on a report prepared by its expert witness, Roni Start.21 See
In response to Plaintiff‘s expert, Defendant asserts that Ms. Start has too “narrowly define[d] articles of apparel by equating them with articles of ‘fashion.‘” Def.‘s XMSJ at 17 (noting that Ms. Start concluded that because the Santa Suit “was never part of any fashion development process” it is not “apparel” but is instead a “costume“) (quoting Start Report at 5-8). Pointing to the court‘s Allstar opinion, Defendant notes that none of the dictionary definitions cited by the court in its examination of the term “apparel” refer to “fashion” or a “fashion development process.” Id. at 17-18 (citing Allstar, 211 F. Supp. 3d at 1329-31). Defendant cites several additional cases to support its contention “that ‘non-traditional’ articles of clothing constitute wearing apparel for classification purposes.” Id. at 18-19 (citing Riddell, Inc. v. United States, 754 F.3d 1375 (Fed. Cir. 2014) (football jerseys, pants, and girdles); Lemans Corp. v. United States, 660 F.3d 1311 (Fed. Cir. 2011) (motocross jerseys and pants, and motorcycle jackets); H.I.M./Fathom, 981 F. Supp. 610 (wetsuits and related accessories)).
Additionally, Defendant asserts the court should accord little weight to Ms. Start‘s expert opinion because it is unreliable and irrelevant. Def.‘s XMSJ at 28-32; Def.‘s Reply at 9-12. Specifically, Dеfendant contends that Ms. Start‘s opinion is “not based on relevant industry standards” and instead represents her “subjective beliefs,” is contradictory at times, arbitrary, and lacking a logical foundation. Def.‘s XMSJ at 30. Defendant further contends that Ms. Start‘s opinion “touch[es] on issues of common
Finally, Defendant contends that the Santa Suit “is well[-]constructed, made to last[,] and [able to] withstand multiple wearings and cleanings,” and “provides decency, comfort, adornment and protection.” Id. at 13.
b. Consideration of Plaintiff‘s Expert‘s Opinion
The court‘s consideration of Plaintiff‘s proffered expert testimony is guided by the factors stated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and
(a) the expert‘s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
Ms. Start‘s opinion fails to meet any of the
Moreover, Ms. Start‘s opinion is unhelpful--and, thus, irrelevant--because she approaches the inquiry from the perspective of “fashion theory” and “fashion development,” Start Report at 5-8, but whether an article constitutes apparel or fancy dress for classification purposes does not depend on whether it is fashionable, see, e.g., Rubie‘s II, 337 F.3d at 1357. Ms. Start‘s analysis of the Santa Suit applies standards relevant to “menswear,” Start Report at 10-11, but those are not the standards articulated by the Federal Circuit, see Rubie‘s II, 337 F.3d at 1357, 1360.24
Ms. Start‘s opinion on this issue is also unreliable. “[R]eliability is the touchstone for expert testimony,” Libas, 193 F.3d at 1366, and it requires more than subjective
Ms. Start‘s preconceived opinion regarding the Santa Suit highlights the problem with her expert testimony. She begins her report by stating that she has “been asked by counsel for investigate [sic] and opine on the extent to which the Santa Claus costume which [Plaintiff] created is a costume or well-made apparel, and therefore which customs classification should be applied.” Start Report at 4. She concludes her report by noting that “[i]n casual discussions with friends and colleagues about this question of whether a Santa Claus costume is a costume or apparel, it is usually followed by laughter. They cannot believe someone would consider a Santa costume as apparel.” Start Report at 12. Ms. Start misunderstands the precise nature of the inquiry--or was misinformed. The issue is not whether the Santa Suit is a costume or apparel as those terms are cоlloquially understood; rather, the issue is whether the Santa Suit is “fancy dress, of textiles, of Chapters 61 or 62,” or a “festive article,” as those terms are defined
c. The Jacket and Pants are “Fancy Dress, of Textiles, of Chapters 61 or 62”
The court is guided by the criteria stated in Rubie‘s II; that is, whether the jacket and pants “are of a flimsy nature and construction, lacking in durability[,] and generally not recognized as normal articles of wearing apparel.” 337 F.3d at 1360.25
Considerations relevant to flimsiness and durability include the presence of “zippers, inset panels, [and] darts or hoops, and whether the edges of the materials [are] raw or finished.” Id. at 1357 (citing HQ 961447 generally as well as HQ 957948 and HQ 957952, which “set[] forth certain styling and sewing features of costumes which exemplify the characteristics of ‘textile articles of fancy dress’ under Chapter 61 or 62“).
In contrast to the merchandise at issue in Rubie‘s II, which “featured simple pull-on type garments with no zippers,” and raw and unhemmed edges, HQ 961447 at 4;
The pants present a closer question. They are a “simple pull-on type garment” with an elastic waist, but common knowledge dictates that the same may be said of many pairs of pants that are unquestionably “wearing apparel.” The bottom of the pants are not hemmed, though the image depicted on the packaging demonstrates that the pants are to be tucked into the shoe covers; thus, the unhemmed bottom will not be visible. See Physical Sample. The pants are lined, with tightly stitched interior seams, and feature pockets with hemmed edges. Def.‘s SOF ¶¶ 11-12. Taken together, the pants, like the jacket, indicate a durable item that will survive multiple wearings and cleanings. Id. ¶¶ 3, 25-26.
To be sure, the jacket and pants may be intended for use only during the Christmas season. See Pl.‘s MSJ at 22 (“It cannot be argued that people wear Santa Claus costumes as everyday apparel . . . .“); Def.‘s SOF ¶ 25. But regularity of wear is not dispositive; items that are worn for specific, perhaps infrequent, purposes may constitute wearing apparel. See Riddell, 754 F.3d at 1375 (football jersey‘s pants, and
There is language in Rubie‘s II that suggests the festive value of the costumes at issue disfavored classification as wearing apparel:
[while the imports may simulate the structural features of wearing apparel, and have some incidents of “clothes or coverings for the human body worn for decency or comfort,” Antonio [Pompeo], 40 Cust. Ct. at 364, they are not practical “articles which are ordinarily worn,” Arnold, 147 U.S. at 496 . . . . Rather, the Halloween costumes for consumers have enormous “make believe” or festive value during appropriate occasions such as Halloween and incidentally afford the element of covering for decency or comfort. To the extent that such elements have any characteristics similar to “wearing apparel” to consumers of Halloween costumes, such features are clearly secondary to the costumes’ festive value.
Rubie‘s II, 337 F.3d at 1358 (emphasis added); see Pl.‘s MSJ at 15-16 (contending the Santa Suit‘s “value as wearing apparel to the consumer is clearly secondary to its ‘make-believe’ or festive value“). The context in which the statement in Rubie‘s II was made, however, involved costumes so flimsy their “principal intended use [was] for a one time festive occasion,” as “distinct from ‘wearing apparel’ which courts have held to be used for decency, comfort, adornment or protection.” Rubie‘s II, 337 F.3d at 1356 (quoting HQ 961447 at 3).26 Thus, they were not “practical” articles of apparel, and their
Further, the court does not interpret Rubie‘s II as supplying a bright-line rule whereby any item of festive value is excluded from classification as wearing apparel.
Proceeding to the precise classification, “[g]arments of [Chapter 61] designed for left over right closure at the front shall be regarded as men‘s or boys’ garments.” Ch. 61, Note 9. The jacket has a left-over-right faux fur cover held in place by two metal snaps, one at the collar of the jacket and one at the base of the jacket, Def.‘s SOF ¶¶ 6-7; thus, it is classifiable as a men‘s or boy‘s garment.
Heading 6105, pursuant to which Customs classified the jacket, covers “[m]en‘s or boy‘s shirts, knitted or crocheted.” See HQ H237067 at 11. However, Note 4 to
Parties dispute the proper alternative classification. Plaintiff contends the jacket may be classifiable as a coat pursuant to
Heading 6101 covers “Men‘s or boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles, knitted or crocheted, other than those of heading 6103.” The relevant Explanatory Note indicates that such items are “characterised [sic] by the fact that they are generally worn over all other clothing for protection against the weather.” EN 61.01. The subject jacket may be worn over other clothing or just undergarments, Def.‘s SOF ¶ 10, and although it affords some protection, id. ¶ 27, it is not worn for protection as are the heading‘s exеmplars.
Heading 6103 covers “suit-type jackets [and] blazers.”30 The relevant Explanatory Note indicates that “[t]he ‘jackets or blazers’ have the same characteristics as the suit coats and suit jackets described in Chapter Note 3(a) and in Part (A) [to EN 61.03].” EN 61.03. Part (A) to EN 61.03 describes jackets with “a full front opening without a closure or with a closure other than a slide fastener (zipper).” The Santa Suit jacket has a zipper closure, Def.‘s SOF ¶ 6; thus, it is not covered by heading 6103.
are united by the following essential characteristics: each article covers the upper body; provides some warmth but does not protect against the elements (wind, rain or extreme cold); and, may be worn over a lighter garment (shirt or undershirt) but is not designed to be worn over all other clothing.
The rule of ejusdem generis33 provides that when “general words follow an enumeration of specific items, the general words are read as applying only to other items akin to those specifically enumerated.” Schlumberger Tech. Corp. v. United States, 845 F.3d 1158, 1165 n.8 (Fed. Cir. 2017) (citation omitted). In “classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine [by name] in order to be classified under the general terms.” Totes II, 69 F.3d at 498 (citation omitted) (emphasis added); see also Victoria‘s Secret Direct, LLC v. United States, 769 F.3d 1102, 1107 (Fed. Cir. 2014) (“Applying the phrase ‘and similar articles’ to the merchandise at issue, then, requires determining whether the merchandise, considering all of its features, shares the unifying characteristics of the particular heading.“).34
Identifying the essential (or unifying) characteristics is “a question of law” and “a matter of common sense.” Victoria‘s Secret, 769 F.3d at 1107. “[T]he unifying charaсteristics may consist of both affirmative features and limitations.” Id.
As Defendant suggests, the named articles share the essential characteristics of covering the upper body, providing some degree of warmth, and being suitable for wear
The relevant Explanatory Note supports the court‘s finding with respect to the exemplars’ essential characteristics and the jacket‘s sharing of those characteristics. It provides that “heading [6110] covers a category of knitted or crocheted articles, without distinction between male or female wear, designed to cover the upper parts of the body (jerseys, pullovers, cardigans, waistcoats and similar articles).” EN 61.10 (emphasis added). Defendant defines “cardigan” as “a sweater or jacket that opens the full length of the center front and usu. has a round or V-shaped collarless neck,” Def.‘s Suppl. Br. at 5 (quoting Webster‘s Third New Int‘l Dictionary of the English Languаge Unabridged (1993) (“Webster‘s“) at 337), or as “[a]n adjective used to describe collarless garments
The Explanatory Note provides examples of articles that share the essential characteristics of the articles named in the heading; that is, articles that cover the upper body, provide warmth, and may be worn over a light garment. Moreover, the Explanatory Note‘s exemplars do not represent the limits of what may be deemed “similar” to the heading‘s exemplars. See EN 61.10 (heading 6110 includes “jerseys, pullovers, cardigans, waistcoats and similar articles“) (emphasis added); Rubie‘s II, 337 F.3d at 1359 (courts should not employ any “limiting characteristics [in the Explanatory Notes’ exemplars], to the extent there are any, to narrow the language of the classification heading itself“). The jacket‘s addition of a collar, which a cardigan may have, see Def.‘s Suppl. Br. at 5 (quoting Webster‘s at 337), is not dispositive because the absence of a collar is not a defining feature of the exemplars in the heading or Explanatory Note. Moreover, common knowledge dictates that waistcoats (or vests) may have a collar and, thus, are not, by definition, collarless. See Brookside Veneers, 847 F.2d at 789 (courts may rely upon their own understanding of HTSUS terms). The
As to the pants, heading 6103 covers “men‘s or boy‘s . . . trousers . . . .” “Trousers” may be defined as “an outer garment extending from the waist to the ankle . . . , covering each leg separately, made close-fitting or loose-fitting in accord with the fashion of different periods.” Webster‘s at 2453. The pants are classifiable pursuant thereto; specifically,
IV. Classification of the Gloves
Heading 6116 covers knitted gloves, mittens and mitts. The gloves, which consist of polyester knit fabric, Def.‘s SOF ¶ 13, are prima facie classifiable pursuant to heading 6116. Accordingly, they are excluded from classification under Chapter 95. See Ch. 95, Note 1(u). The gloves are properly classified pursuant to
V. Classification of the Sack
Heading 4202 covers “traveling bags, . . . knapsacks and backpacks, handbags, shopping bags, . . . sports bags, . . . and similar containers, . . . of textile materials.” The sack consists of the same plush fabric as the jacket and pants, and has a drawstring cord. Def.‘s SOF ¶ 14. It is described in the packaging as a “toy bag.” Physical Sample. The Government contends that the sack is classifiable pursuant to
Heading 4202 is an eo nomine provision, Totes II, 69 F.3d at 498, which therefore “include[s] all forms of the named article,” Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999). Additionally, the term “similar containers” implicates the rule of ejusdem generis. Processed Plastic, 29 CIT at 1147 n.30, 395 F. Supp. 2d at 1313 n.30. The Federal Circuit has defined the essential characteristics of the heading 4202 exemplars as “organizing, storing, protecting, and carrying various items.” Totes II, 69 F.3d at 498 (approving of the trial court‘s determination of same).
Here, the sack‘s plush material, drawstring cord, and description as a “toy bag” indicates that it serves the purpose of storing, protecting, and carrying toys. Def.‘s SOF ¶ 14; Physical Sample.43 With some effort, the drawstring cord may be pulled tightly
Proceeding to the appropriate subheading, “[t]ravel, sports and similar bags . . . of textile materials: [o]ther,” are covered by subheading 4202.92.30. The phrase “travel, sports and similar bags,” includes articles “designed for carrying clothing and other personal effects during travel, including . . . shopping bags.” Ch. 42, Add‘l U.S. Note 1. The sack appears capable of carrying toys (or other personal effects) from A to B, similar to a shopping bag. Acсordingly, the sack is properly classified pursuant to
For the reasons discussed above, the components of the Santa Suit at issue in this case are properly classified pursuant to the following HTSUS provisions: (1) jacket:
Judgment will be entered accordingly.
/s/ Mark A. Barnett
Mark A. Barnett, Judge
Dated: October 31, 2017
New York, New York