Weekly/Monthly Planners Are Diaries, Not Calendars, US Tells CAFC

On appeal, the U.S. supported Court of International Trade Judge Jane Restani’s decision that imported weekly/monthly planners were properly classified as “diaries” under heading 4820 of the Harmonized Tariff Schedule (see 2404100052). The decision subjected the importer to Section 301 tariffs (Blue Sky The Color of Imagination v. U.S., Fed. Cir. # 24-1710).

Importer Blue Sky The Color of Imagination brought its case saying that it has been importing its planners under the duty-free calendar heading, heading 4910, “for over 20 years” (see 2405280063). It said its products were only reclassified as “other” paper products after the imposition of Section 301 tariffs in 2019.

But the importer “fails to identify any error in the trial court’s analysis,” the government told the U.S. Court of Appeals for the Federal Circuit. It argued the planners are not calendars because they are not “a system or chart representing the days, weeks, and months of the year.” This finding is consistent with the schedule’s explanatory note, which holds that the item’s essential character “must be determined by the presence of a calendar,” it said.

It acknowledged that the notes are not binding, but said that they are generally understood to be “generally indicative of the proper interpretation” of a heading.

Restani, it said, found that the planners were “diaries,” which it defined as books used both “to record retrospective events of importance” and to serve as a “prospective scheduling device.” Even if the CAFC case Mead dictated a narrower definition of the word “diary,” the heading Restani landed on, 4820, includes other terms; alternatively, the planners are “similar articles” pursuant to the principles of ejusdem generis, it said.

The case raised the issue of whether, when dictionaries are referred to, British or American dictionaries should be used to interpret certain statutory terms. Restani based her “diary” determination on the British-English and French definitions of the word, which Blue Sky argued was a novel rationale raised sua sponte by the court that it hadn’t had proper time to address.

But “Blue Sky cannot cite to any judicial precedent that holds it is improper to consider British English or the French translation of a tariff term, particularly given the history of the HS,” the government said.