UNITED STATES COURT OF INTERNATIONAL TRADE

Blue Sky the Color of Imagination, LLC, v. United States,  Slip Op. 24-42

Before the Court in Blue Sky the Color of Imagination, LLC, v. United States, Court No. 21-00624, Slip Op. 24-42 (April 10, 2024) were cross motions for summary judgment by the parties concerning U.S. Customs and Border Protection’s (“CBP”) denial of Plaintiff’s protest against the reclassification of certain paper products imported by Blue Sky. The subject merchandise consists of four paper products consisting of different weekly/monthly models of planners and planning calendars. No material factual disputes existed about the fact that Blue Sky imported ten models of desk calendars and planners and classified them under heading 4910 of the Harmonized Tariff Schedule of the United States (HTSUS) as “[c]alendars of any kind”.

The issue turned on Customs’ reclassification of all ten models of desk calendars and planners as “[o]ther” under subheading 4820.10.40.00 HTSUS and denied Blue Sky’s protest against such reclassification. Although the sizes of the models varied, all four models included full page month calendars followed by weekly sections that include space to write notes and were labeled with the term “planner” on the front. The subject merchandise is undisputably used to note future appointments and they are notebooks with certain additional pages for addresses and phone numbers all bound by a spiral bound.

Pursuant to its jurisdiction under 28 U.S.C. § 1581(a) and USCIT Rule 56(a), the Court of International Trade, the court granted plaintiff’s summary judgment motion in part and denied the Government’s motion, holding that the Government improperly classified the subject merchandise under subheading 4820.10.40.00 HTSUS.

Judge Restani concluded that the subject merchandise was instead properly classified as “diaries” under subheading 4820.10.20.10 HTSUS. The court reasoned, according to Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed. Cir. 1984) that the plaintiff has the burden of establishing that the government’s classification of the subject merchandise was incorrect but does not bear the burden of establishing the correct classification; that it is the court’s independent duty to arrive at “the correct result, by whatever procedure is best suited to the case at hand.” Id. The court “must consider whether the government’s classification is correct, both independently and in comparison with the importer’s alternative.” Id.

Blue Sky argued that the merchandise in this case was incorrectly classified by CBP as “[o]ther” because it argued that these products were eo nomine calendars. Furthermore, it argued, because there is no ambiguity in the HTSUS provision, the Explanatory Note should not be reached in this case because they conflict with the HTSU’s unambiguous language. By contrast, the Government argued that the merchandise is not calendars given the predominant use of the objects was not calendars. It argued that even though the merchandise contains some limited printed calendar pages, the products were not defined by those pages, but instead as a whole the product’s use is to provide space for writers to record information. The Government cited Mead Corp. v. Untied States, 283 F.3d 1342, 1349 (Fed. Cir. 2002), arguing that like the items at issue in Mead, Blue Sky’s merchandise should not be classified as calendars, rather as “[o]ther paper products.”

The CIT used General Rule of Interpretation 1 to analyze the proper classification of the subject merchandise. The court noted that while portions of the merchandise meet the definition of calendar, the whole of each item exceeds the eo nomine classification because the products are not merely charts for showing the division of a given year; rather are bound notebooks that contain charts that meet the calendar definition along with space to write information about each day/month as well as space to write additional notes, addresses, and telephone numbers. The court considered the fact that consumers can not only keep trach of the days but also make notations regarding them. It concluded that heading 4820 HTSUS, thus, is most appropriate and classification under 4910 HTSUS as argued by plaintiff was not appropriate.

The CIT relied on the Explanatory Note associated with heading 4910 HTSUS. It clarifies that heading 4910 HTSUS “does not cover articles whose essential character is not determined by the presence of a calendar” and also excludes “[m]emorandum pads incorporating calendars and diaries (including so-called engagement calendars) (heading 48.20).) The CIT also relied on its examination of the French interpretation of the Harmonized Tariff, which uses “agendas” in place of the English “diary”, as well as an assessment of the dictionary definition of “diary”. It concluded that diaries are both retrospective journals, and prospective scheduling devices. Thus, the court reasoned that the subject merchandise meets the definition of “diaries” which under the Cambridge Essential British English dictionary is “a book in which you write about what you have done and your thoughts and feelings” or “a book in which you write things that you must remember to do.” Under the Oxford English Dictionary, a diary is “[a] daily record of events or transactions, a journal; specifically, a daily record of matters affecting the writer personally, or which come under his or her personal observation” or “[a] book prepared for keeping a daily record, or having spaces with printed dates for daily memoranda and jottings; also, applied to calendars containing daily memoranda on matters of importance to people generally, or to members of a particular profession, occupation, or pursuit.” Therefore, the court held Blue Sky’s diaries as properly excluded from heading 4910 HTSUS and properly classified within heading 4820 HTSUS.