US Agrees Trade Court Committed Reversible Error, Planner Importer Tells CAFC

An importer of weekly/monthly planners told the U.S. Court of Appeals for the Federal Circuit on Sept. 18 that it and the government were in agreement that the Court of International Trade had committed a reversible error by classifying its planners as diaries (Blue Sky The Color of Imagination v. U.S., Fed. Cir. # 24-1710).

The U.S. said in its own brief that it supported CIT Judge Jane Restani’s classification (see 2409040052).

Blue Sky said that the government admitted in its response brief that the trade court violated stare decisis by ignoring the finding in a CAFC case, Mead, that held diaries to be “records of the past.” CIT in its decision, however, ruled that diaries are also “books to write about the future,” it said.

As a result, the U.S. also was “apparently” conceding that the court erred in finding that Blue Sky’s weekly/monthly planners were classified as diaries under Harmonized Tariff Schedule heading 4820, it said.

But, “despite the government’s acknowledgement that the trade court erred, it then spends much of its 50-page response brief defending the erroneous decision,” Blue Sky said.

It said the U.S. seeks to take a “novel approach” to the case, arguing that, despite the errors, “this Court should forgo its own analysis and instead partially defer to the trade court by reclassifying the planning calendars in a similar subheading within the heading erroneously chosen by the trade court,” it said. It called this contrary to the appellate court’s de novo standard of review.

The importer also said that the U.S. was presenting “a lengthy argument” for classifying the weekly/monthly planners under heading 4820 because “their essential character is that of a notebook” under General Rule of Interpretation 1. But GR1 “does not involve an essential character analysis,” it said -- it covers eo nomine provisions.

“The government argues the planning calendars contain both calendars and stationery,” it said. “If the government is correct then GRI 3, not GRI 1, applies.”

But the U.S. doesn’t make any essential character arguments under GR3, and in fact argues that GR3 doesn’t apply, it said. As a result, it cannot raise GR3 arguments on appeal, having waived them, the importer said.

Blue Sky’s brief comes in a case regarding the proper classification of its weekly/monthly planning notebooks. The importer argues that its planners are properly considered calendars, and that it has been importing its planners under the duty-free calendar heading, heading 4910, “for over 20 years” (see 2405280063). It argues that its products were only reclassified after the imposition of Section 301 tariffs on its new heading in 2019.

But CIT classified its planners neither as “calendars,” as the importer preferred, nor as “other paper products,” as the heading pushed by the government. Instead, it turned to British and French dictionaries to determine the definition of the word “diary,” pointing out that terms in the Harmonized Tariff Schedule of the U.S. come from the global Harmonized System and thus use British English unless specifically Americanized by Congress (see 2404100052).