Trade Court Says Planning Calendars Are 'Diaries,' Uses English, French Definitions

April 10, 2024 by Jacob Kopnick|Penalties and Courts

The Court of International Trade on April 10 rejected the preferred tariff classification of notebooks with calendars from both CBP and importer Blue Sky the Color of Imagination, slotting the products under Harmonized Tariff Schedule subheading 4820.10.20.10 as "diaries." Judge Jane Restani explained that the court should prefer readings of the HTS that establish "conformity" across both the English and French translations of the Harmonized System.

The goods at issue included four different types of "weekly/monthly" planners and "planning calendars." Each contains full-page month calendars with weekly sections that come with a space to write notes.

Blue Sky entered the goods under subheading 4910.00.20.00 as calendars not over 0.51mm in thickness, though CBP classified the items under subheading 4820.10.40.00 as "other" registers, accounts books, notebooks and the like.

Prior to assessing the parties' arguments, Restani noted that the HS was drafted in both French and English and that both versions of the system are considered "equally authoritative treaty texts." As a result, the interpretation that considers both versions should apply.

The judge added that the court presumes that HS terms implemented into the HTS encompass both British and American definitions of the term, noting the "linguistic distinctions" present in the dialects. Without a specific "American change" the court will find what the tariff term means if used as part of the "common core language for trade" and consider the British meaning of the term "where appropriate," she said, echoing these sentiments in the case's recent oral argument (see 2403290059).

Restani first addressed whether the goods fit under heading 4820, which contains headings that classify paper and paperboard and articles of paper pulp, or heading 4910, which covers headings that classify "printed books, newspapers, pictures and other products of the printing industry."

The judge said that parts of the goods could be described as "eo nomine calendars," as argued by Blue Sky, "but the whole of each item" exceeds this classification, since the planners "are not merely charts for showing the division of a given year, but 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 goods not only allow consumers to "keep track of the days" but also to "make notations regarding them," making heading 4820 the proper home for the products, and not heading 4910.

In addition, heading 4910's Explanatory Note says that it doesn't cover goods whose "essential character is not determined by the presence of a calendar" and that "diaries" are excluded, she said. The court turned to two British definitions of a "diary," which generally defined the article as either "a book in which you write things that you must remember to do" or a "book prepared for keeping a daily record, or having spaces with printed dates for daily memoranda and jottings." The definitions also acknowledged that diaries "are both retrospective journals, and prospective scheduling devices."

Restani said the merchandise "appears to the court to be diaries" classifiable under heading 4820. The judge supported the finding with the French definition of the word "agendas," which was used in the French-version HS in place of "diary." This definition "roughly translates as 'registers, a notebook with a calendar and in which one writes for each day what one proposes to do.'" Classifying the goods as "diaries" satisfies both the French and English translations of the HS, she said.

Chris Duncan, counsel for Blue Sky, said in an email that he is "disappointed with the court’s decision" and that the company "is reviewing its options."

(Blue Sky the Color of Imagination v. United States, Slip Op. 24-42, CIT # 21-00624, dated 04/10/24; Judge: Jane Restani; Attorneys: Christopher Duncan of Stein Shostak for plaintiff Blue Sky the Color of Imagination; Monica Triana for defendant U.S. government)