Trade Updates for Week of September 6, 2018

United States Court of International Trade


These Dolls are Not Festive Articles

Before the Court in Russ Berrie & Company, Inc. v. United States, Slip Op. 18-108, Court No. 93-00391 (August 30, 2018) were cross motions for summary judgement regarding the proper tariff classification nine different types of products imported and liquidated in 1993. Plaintiff, an importer of various goods, argued that all of the goods were classifiable under HTSUS subheading 9505.90.60, as festive objects with a duty rate of 3.1% ad valorem. The Government argued the merchandise was not festive and was classifiable under various HTSUS subheadings. For the following reasons the Court agreed with the government in regards to the classification of all products, except one which was classified as a festive article.

“Tariff classification under the HTSUS is determined according to the General Rules of Interpretation (“GRIs”) … the GRIs are applied in numerical order.” Id. at 6. GRI 1 provides that “classification shall be determined according to the terms of the headings and any relative section or chapter notes” construed according to their common and commercial meanings.   Some of the many articles the Court dealt with were toy trolls, goblin finger puppets, grim weeper figurines and Christmas Hug figurines. The trolls were dressed with Christmas outfits, the finger puppets and Christmas figurines were Halloween and Christmas themed, and the grim weeper figurine depicted the figure holding a scythe. The Court said the trolls, finger puppets, and figurines “have the amusing physical characteristics of toys, are not decorations or ornaments. Whether or not they are dressed in outfits with” or related to Christmas or Halloween themes.” Id. at 16. The correct subheading for the dolls, finger puppets and hugs was HTSUS subheading 9503.49.00, as toys with a 6.8% ad valorem duty rate.   The Court also used the same reasoning to classify a bobble head like model of a skeleton popping up from a head stone under HTSUS subheading 9503.90.70, as a toy with a spring with a 6.8 % ad valorem duty rate.

The next product at issue was the Trick ‘n Treat Fun Center. The center was a set that consisted of five articles: multiplying viewers, puzzle watches, squirt balls, paint palettes, and stencil sets. A threshold issue regarding this product was if it should be classified as a set. The Court declined to do this because the plaintiffs catalog described the product as individual articles which “may be sold separately at retail.” Id. at 31. The Court individually classified the multiplying viewers, puzzle watches, and stencil set under HTSUS Subheading 9503.90.60 as toys, using the same analysis as was used on the dolls, finger puppets and figurines. These were dutiable at 6.8% ad valorem. Under a similar analysis the paint pallet was classified under heading 3213 as a paint set for children’s use. The squirt balls, which can shoot water, were classifiable under subheading 9505.90.20 as festive practical joke articles, with a duty rate of 5.8% ad valorem.

Plaintiff also claimed that various candleholders were classifiable as festive articles. The candleholders had numerous designs including a pilgrim, a Santa Claus teddy bear, and angel’s wings. After evaluation the different possible classifications the Court said “goods that are holiday-themed decorations but also are lamps, if of a non-durable construction, fall within the scope of heading 9505, HTSUS, while such decorations of more durable construction (such as the candleholders at issue in this case) generally do not and remain classified under heading 9405, HTSUS.” Id. at 44.  The applicable HTSUS Subheading for the candleholders was 9405.50.40. In addition, plaintiff claimed that baby booties were classifiable as festive articles because the baby shoes each depict either a Halloween, Christmas, or Thanksgiving face. The Court found the shoes classifiable under HTSUS subheading 6405.20.90 as other footwear with a 12.5% duty rate ad valorem

The only product plaintiff’s festive article claims were successful on was its etched image plaques. The plaque depicts an Easter lily, a white dove and a gold chalice, and includes the words “The Lord is risen, alleluja!” The Court said “The Easter lilies, the gold chalice …, and the message referencing the resurrection of Jesus Christ are symbolic of the Easter holiday” therefore classification under HTSUS 9505.90.60 as a festive was correct. Id. at 47.


Motion for Preliminary Injunction and Motion to Strike were Both Denied

The Court in Sumecht NA, Inc. d.b.a., Sumec North America v. United States et. al., Slip Op. 18-109 (August 30, 2018) considered plaintiff’s motion for a preliminary injunction and motion to strike certain citations and claims made by the defendant in its reply brief to the motion for a preliminary injunction. Plaintiffs are importers of photovoltaic cells from China, who “initiated this case to contest certain administrative and enforcement actions taken by the U.S. Department of Commerce.” Id. at 2. For the following reasons the plaintiff’s motion for a preliminary injunction and motion to strike were both denied.

“A motion to strike constitutes an extraordinary remedy, and should be granted only in cases where there has been a flagrant disregard of the rules of court.” Id. at 4. The Court said plaintiff “has not made a sufficient showing to warrant granting the extraordinary remedy it seeks” because they could not prove bad faith or prejudice by the Government.  Id. at 5.  For purposes of the preliminary injunction, the Court considers four factors. These are “(1) whether the party is likely to suffer irreparable harm in the absence of such injunction; (2) whether the party is likely to succeed on the merits of the action; (3) whether the balance of hardships favors the imposition of the injunction; and (4) whether the injunction is in the public interest.” The Court said “Sumec does not specify any concrete, individualized harm, and does not proffer further evidence in support of its allegations. Plaintiff’s perceived financial harm is hypothetical and unsubstantiated.” Id. at 6. The Court choose not to consider the other factors due to plaintiff’s failure to establish irreparable harm.