Rubies Costume Co. v. United States , 2017 CIT 147 ( 2017 )

Slip Op. 17-147
UNITED STATES COURT OF INTERNATIONAL TRADE
RUBIES COSTUME CO.,
Plaintiff,
Before: Mark A. Barnett, Judge
v.
Court No. 13-00407
UNITED STATES,
Defendant.
OPINION
[The court denies Plaintiff’s motion for summary judgment and grants Defendant’s
cross-motion for summary judgment.]
Dated: October 31, 2017
Glenn H. Ripa, John A. Bessich, and Suzanne L. McCaffery, Follick & Bessich, of New
York, NY, for Plaintiff.
Peter A. Mancuso, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of New York, NY, for Defendant. With him on the brief were
Chad A. Readler, Acting Assistant Attorney General, and Amy M. Rubin, Assistant
Director. Of Counsel on the brief was Michael W. Heydrich, Office of the Assistant
Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection, of
New York, NY.
Barnett, Judge: In this case, the court addresses the issue of the proper
classification of a Santa Claus costume. Is it a “festive article” entitled to duty free
treatment, or is it fancy dress, of textile, akin to wearing apparel, dutiable at the rates
applicable to the particular parts of the costume? Application of classification principles
in this case (the General Rules of Interpretation, which direct the court to apply the
terms of the Harmonized Tariff Schedule, and relevant judicial precedent) leads to a
finding that, while flimsy and non-durable costumes (whether for Halloween, Christmas,
Court No. 13-00407 Page 2
or any other holiday) generally receive duty free treatment as festive articles, and non-
flimsy, durable Christmas sweaters may also receive duty free treatment as festive
articles (because they are not fancy dress), a relatively well-made, durable, dry clean
only Santa Claus costume constitutes fancy dress, of textile, and is, therefore, excluded
from classification as a festive article.
Before the court are cross-motions for summary judgment. See Pl.’s Mot. for
Summ. J., ECF No. 28, and Mem. of Law in Supp. of Pl.’s Mot. for Summ. J (“Pl.’s
MSJ”), ECF No. 28-1; Def.’s Cross-Mot. for Summ. J. and Mem. in Supp. of Def.’s
Cross-Mot. for Summ. J (“Def.’s XMSJ”), ECF No. 30. Plaintiff Rubies Costume
Company (“Rubies” or “Plaintiff”) contests the denial of its protest challenging U.S.
Customs and Border Protection’s (“Customs” or “CBP”) classification of a multi-piece
Santa Claus suit (“Santa Suit”). See Summons, ECF No. 1; Compl., ECF No. 5.
Plaintiff contends the Santa Suit qualifies for duty free treatment as a “[f]estive, carnival
or other entertainment article[]” (hereinafter referred to as a “festive article”) pursuant to
subheading 9505.10.50 of the Harmonized Tariff Schedule of the United States
(“HTSUS”), or, alternatively, subheading 9505.90.60 of the HTSUS. Pl.’s MSJ at 2-3.
Defendant United States (“Defendant” or the “Government”) contends that Customs
correctly classified the Santa Suit under tariff provisions corresponding to the individual
garments and accessories that, together, compose the Santa Suit. Def.’s XMSJ at 1-2.
For the following reasons, the court finds that the Santa Suit is not a festive article, and,
therefore, is properly classified pursuant to the below-stated individual tariff provisions.
Court No. 13-00407 Page 3
BACKGROUND
I. Material Facts Not in Dispute
The party moving for summary judgment must show "there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law."
United States Court of International Trade (“USCIT”) Rule 56(a). Movants should
present material facts as short and concise statements, in numbered paragraphs, and
cite to “particular parts of materials in the record” as support. USCIT Rule 56(c)(1)(A);
see also USCIT Rule 56.3(a)("factual positions described in Rule 56(c)(1)(A) must be
annexed to the motion in a separate, short and concise statement, in numbered
paragraphs"). In responsive papers, the nonmovant "must include correspondingly
numbered paragraphs responding to the numbered paragraphs in the statement of the
movant." USCIT Rule 56.3(b). Parties filed cross motions for summary judgment and
submitted separate statements of undisputed material facts with their respective
motions. See Pl.’s Am. Statement of Material Facts Not in Dispute (“Pl.’s SOF”), ECF
No. 34; Def.’s Statement of Undisputed Material Facts (“Def.’s SOF”), ECF No. 30-1.
Defendant also filed a response to Plaintiff’s statement of facts. See Def.’s Resp. to
Pl.’s Statement of Material Facts Not in Dispute (“Def.’s Resp. to Pl.’s SOF”), ECF No.
30-2. Plaintiff did not file a response to Defendant’s statement of facts and has
informed the court that it admits all of Defendant’s factual assertions. See Notice from
the Court (June 26, 2017), ECF No. 36. Parties also filed supplemental facts specific to
the Santa Suit jacket. See Pl.’s Resp. to the Court’s Order of July 28, 2017 (“Pl.’s
Suppl. Br.”), Ex. 1 (CBP Lab Report NY20171073), ECF No. 40-1; Def.’s Resp. to the
Court No. 13-00407 Page 4
Court Order Dated July 28, 2017 Req. Suppl. Briefing (“Def.’s Suppl. Br.”), Ex. 2 (CBP
Lab Report NY20171073), ECF No. 41-2. Upon review of the Parties' facts (and
supporting exhibits), 1 the court finds the following undisputed and material facts. 2
Rubies, a wholesale and retail costume company, is the importer of record of the
subject Santa Suit. Pl.’s SOF ¶¶ 1, 9; Def.’s Resp. to Pl.’s SOF ¶¶ 1, 9; see also Pl.’s
SOF ¶ 21; Def.’s Resp. to Pl.’s SOF ¶ 21 (subject merchandise is imported for domestic
resale). 3 The Santa Suit consists of a red jacket, pants, and hat, a black belt with a
metal buckle, white gloves, black shoe covers, a white wig, and a Santa sack that are
packaged together for retail sale as the “Premier Plush 9 Piece Santa Suit.” Def.’s SOF
¶ 1. Only the jacket, pants, gloves, and sack are at issue in this case. 4
The jacket and pants consist of 73% acrylic and 27% knit polyester material, 5
and have sewn-in care labels stating that each item is “Dry Clean Only.” Id. ¶¶ 2, 3.
1 The exhibits include a physical sample of the Santa Suit. See Def.’s XMSJ, Ex. 3
(“Physical Sample”), ECF No. 30-5 (certification of filing and service of physical exhibit
or item).
2 Citations are provided to the relevant paragraph number of the undisputed facts and
response; internal citations generally have been omitted.
3 Plaintiff also produces and sells children’s Halloween costumes. The “typical”
children’s Halloween costumes Plaintiff markets “do not have finished edges or zippers,
and close in the back with Velcro or a snap, or are made to ‘slipover’ the wearer.” Def.’s
SOF ¶¶ 19, 21. Those costumes are intended for one-time use and retail for 10-20
USD. Id. ¶¶ 22-23.
4 The belt, beard, wig, hat, and shoe covers were liquidated duty free as entered under
subheading 9505.90.60. Pl.’s SOF ¶ 4; Def.’s Resp. to Pl.’s SOF ¶ 4; see also Def.’s
XMSJ at 2 n. 1.
5 Defendant does not expressly state that the jacket and pants are made from “knitted”
material. However, laboratory testing on the jacket performed in response to the court’s
inquiry demonstrates that the fabric (which matches the fabric used to construct the
pants) “is of cut-pile weft knit construction.” Pl.’s Suppl. Br, Ex. 1; Def.’s Suppl. Br., Ex.
2.
Court No. 13-00407 Page 5
The jacket is made in one “standard size,” consists of plush fabric, and is fully lined with
satin polyester. Id. ¶ 4; Physical Sample. The jacket fabric “has a stitch count per one
centimeter of [seven] in the horizontal [direction] and [seven] in the vertical direction.”
Pl.’s Suppl. Br, Ex. 1; Def.’s Suppl. Br., Ex. 2. The jacket has “a full front opening
secured by a zipper,” which is hidden by a left-over-right faux fur cover held in place by
two metal snaps, one at the collar of the jacket and one at the base of the jacket. Def.’s
SOF ¶¶ 6-7. The double-layer collar consists of white faux fur fabric. Id. ¶ 5. “The
jacket has long sleeves with turned edges, trimmed with white faux fur fabric cuffs,” id.
¶ 8, and “a straight cut hemmed bottom trimmed with the same white faux fur fabric,” id.
¶ 9. The jacket may be worn over other clothing or undergarments, id. ¶ 10, and has
belt loops for the belt, Physical Sample. The pants have a satin polyester lining,
pockets with hemmed edges, an elasticized waist, and tightly stitched interior seams.
Def.’s SOF ¶¶ 11-12. The white knit gloves consist of 100% polyester knit fabric. Id.
¶ 13. 6 The sack is made from the same material as the jacket and pants, and has a
drawstring cord. Id. ¶ 14. The Santa Suit packaging describes the sack as a “toy bag.”
Physical Sample.
The Santa Suit has a wholesale price of USD 60-70 and a retail price of USD
100, which is considered “a mid-to-high price point.” Id. ¶ 24. It is “manufactured to be
worn repeatedly during a single Christmas season” and “is intended to survive multiple
wearings and cleanings” over several Christmas seasons. Id. ¶¶ 25-26. The Santa Suit
6Physical inspection of the gloves reveals strips of material that form the sides of two
adjacent fingers. See Physical Sample.
Court No. 13-00407 Page 6
covers the body of the individual wearing it and provides warmth and protection to the
wearer. Id. ¶ 27.
II. Procedural History
On June 20, 2012, Rubies sought a binding pre-importation ruling from Customs
regarding the classification of the Santa Suit. See Def.’s XMSJ, Ex. 2 (“HQ H237067”),
ECF No. 30-4. On June 20, 2013, Customs issued its ruling. See generally HQ
H237067. Relying on the Court of Appeals for the Federal Circuit’s (“Federal Circuit”)
opinion in Rubie’s Costume Co. v. Unites States (“Rubie’s II”), 7 337 F.3d 1350 (Fed. Cir.
2003), 8 and Customs’ informed compliance publication regarding the classification of
textile costumes, Customs distinguished the “well-made” Santa Suit from the “flimsy
costumes” it classifies as festive articles. HQ H237067 at 6-9. 9 Accordingly, Customs
determined that the jacket and pants are classifiable as “wearing apparel” under
headings 6105 and 6103, respectively. Id. at 9. Customs further found that the gloves
and sack are classifiable under headings 6116 and 4202, respectively. Id. at 9-10.
7 Rubie’s II reversed the USCIT’s decision in Rubie's Costume Co. v. United States
(“Rubie’s I”), 26 CIT 209, 196 F. Supp. 2d 1320 (2002). In Rubie’s II, the same plaintiff
as in this case (but therein described as a domestic manufacturer of costumes) had filed
a Domestic Interested Party Petition asserting that all imported textile costumes should
be classified as wearing apparel in Chapters 61 or 62. 337 F.3d at 1352.
8 In accordance with the summons filed in this case, there is no apostrophe in “Rubies.”
See Summons at 1. In contrast, in the case giving rise to the Rubie’s I and Rubie’s II
opinions, the summons contains an apostrophe in “Rubie’s” in the case caption. See
Rubie’s Costume Co. v. United States, Court No. 99-00388, ECF No. 44 (electronic
docket sheet).
9 Following the Federal Circuit’s opinion in Rubie’s II, in June 2008 Customs issued an
informed compliance publication titled, “What Every Member of the Trade Community
Should Know About: Classification of Textile Costumes under the HTSUS.” See Def.’s
XMSJ, Ex. 5 (“Textile Costumes ICP” or “the ICP”), ECF No. 30-7.
Court No. 13-00407 Page 7
On August 20, 2013, Plaintiff entered 36 Santa Suits under Entry Number BPQ-
1066668-8 through the John F. Kennedy Airport in New York. Compl. ¶¶ 5-6; Answer
¶¶ 5-6, ECF No. 11; see also Summons at 1. On October 25, 2013, Customs liquidated
the Santa Suits as follows:
Item HTSUS Classification Duty Rate
Jacket 6105.20.20 32.0% ad valorem
Pants 6103.43.15 28.2% ad valorem
Gloves 6115.95.60 10 10.0% ad valorem
Sack 4202.92.30 17.6% ad valorem
Beard, Wig, Hat, 9505.90.60 Free of Duty
Belt, and Shoe
covers
Pl.’s SOF ¶ 4; Def.’s Resp. to Pl.’s SOF ¶ 4.
Rubies timely protested Customs’ classification of the subject merchandise; on
December 14, 2013, that protest was deemed denied. Pl.’s SOF ¶¶ 5-6; Def.’s Resp. to
Pl.’s SOF ¶¶ 5-6; see also Summons at 1. Rubies challenges the denial of its protest.
Parties have fully briefed the issues. The court now rules on the cross-motions for
summary judgment.
10 Defendant contends the gloves should have been classified under subheading
6116.93.94. Def.’s Resp. to Pl.’s SOF ¶ 4. Cf. HQ H237067 at 9 (finding the gloves
classifiable under heading 6116). Heading 6115 covers “Panty hose, tights, stockings,
socks and other hosiery, including graduated compression hosiery (for example,
stockings for varicose veins) and footwear without applied soles, knitted or crocheted,”
and, thus, does not describe the subject gloves.
Court No. 13-00407 Page 8
JURISDICTION AND STANDARD OF REVIEW
The court has subject matter jurisdiction pursuant to 28 U.S.C. § 1581(a).
Jurisdiction is uncontroverted in this case. Pl.’s SOF ¶ 2; Def.’s Resp. to Pl.’s SOF ¶ 2.
The court may grant summary judgment when “there is no genuine issue as to
any material fact,” and “the moving party is entitled to judgment as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); USCIT R. 56(a). The court’s
review of a classification decision involves two steps. First, it must determine the
meaning of the relevant tariff provisions, which is a question of law. See Bausch &
Lomb, Inc. v. United States, 148 F.3d 1363, 1365 (Fed. Cir. 1998) (citation omitted); see
also id. at 1366 (characterizing the first step as “constru[ing] the relevant (competing)
classification headings”). Second, it must determine “what the merchandise at issue is,”
which is a question of fact. Id. at 1366. When no factual dispute exists regarding the
merchandise, summary judgment is appropriate and resolution of the classification turns
solely on the first step. See id. at 1365-66; id. at 1365 (“The ultimate question in a
classification case is whether the merchandise is properly classified under one or
another classification heading,” which is “a question of law[] . . . because what is at
issue is the meaning of the terms set out in the statute . . . .”) (citations omitted); see
also Sigma–Tau HealthScience, Inc. v. United States, 838 F.3d 1272, 1276 (Fed. Cir.
2016) (citations omitted).
The court reviews classification cases on “the basis of the record made before
the court.” 28 U.S.C. § 2640(a). While the court accords deference to Customs’
classification rulings relative to their “power to persuade,” United States v. Mead Corp.,
Court No. 13-00407 Page 9
533 U.S. 218, 235 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)),
it has “an independent responsibility to decide the legal issue of the proper meaning and
scope of HTSUS terms,” Warner-Lambert Co. v. United States, 407 F.3d 1207, 1209
(Fed. Cir. 2005) (citing Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1358
(Fed. Cir. 2001)). It is “the court’s duty to find the correct result, by whatever procedure
is best suited to the case at hand.” Jarvis Clark Co. v. United States, 733 F.2d 873, 878
(Fed. Cir. 1984).
DISCUSSION
I. Legal Framework
The General Rules of Interpretation (“GRIs”) provide the analytical framework for
the court's classification of goods. See N. Am. Processing Co. v. United States, 236
F.3d 695, 698 (Fed. Cir. 2001). “The HTSUS is designed so that most classification
questions can be answered by GRI 1.” Telebrands Corp. v. United States, 36 CIT ___,
___, 865 F. Supp. 2d 1277, 1280 (2012), aff’d 522 F. App’x 915 (Fed. Cir. 2013). GRI 1
states that, “for legal purposes, classification shall be determined according to the terms
of the headings and any [relevant] section or chapter notes.” GRI 1, HTSUS. The court
considers chapter and section notes of the HTSUS in resolving classification disputes
because they are statutory law, not interpretive rules. See Arko Foods Int’l, Inc. v.
United States, 654 F.3d 1361, 1364 (Fed. Cir. 2011) (citations omitted); see also Park
B. Smith, Ltd. v. United States, 347 F.3d 922, 929 n. 3 (Fed. Cir. 2003) (chapter
and section notes are binding on the court).
Court No. 13-00407 Page 10
“Absent contrary legislative intent, HTSUS terms are to be ‘construed [according]
to their common and popular meaning.’” Baxter Healthcare Corp. of Puerto Rico v.
United States, 182 F.3d 1333, 1337 (Fed. Cir. 1999) (quoting Marubeni Am. Corp. v.
United States, 35 F.3d 530, 533 (Fed. Cir. 1994)). Courts may rely upon their own
understanding of terms or consult dictionaries, encyclopedias, scientific authorities, and
other reliable information. Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 789
(Fed. Cir. 1988); BASF Corp. v. United States, 35 CIT ___, ___, 798 F. Supp. 2d 1353,
1357 (2011). For additional guidance on the scope and meaning of tariff headings and
chapter and section notes, the court also may consider the Explanatory Notes to the
Harmonized Commodity Description and Coding System, developed by the World
Customs Organization. See Deckers Outdoor Corp. v. United States, 714 F.3d 1363,
1367 n. 1 (Fed. Cir. 2013). Although Explanatory Notes do not bind the court's analysis,
they are “indicative of proper interpretation” of the tariff schedule. Lynteq, Inc. v. United
States, 976 F.2d 693, 699 (Fed. Cir. 1992) (quoting H.R. Rep. No. 100–576, at 549
(1988) (Conf. Rep.), reprinted in 1988 U.S.C.C.A.N. 1547, 1582).
II. Competing Tariff Provisions
Plaintiff contends the Santa Suits are properly classified as festive articles under
subheading 9505.10.50 or, alternatively, 9505.90.60. Pl.’s MSJ at 2-3. Chapter 95
covers “Toys, Games, and Sports Requisites; Parts and Accessories thereof.” The
asserted subheadings (and relevant legal notes) are as follows:
9505: Festive, carnival or other entertainment articles, including magic tricks and
practical joke articles; parts and accessories thereof:
Court No. 13-00407 Page 11
9505.10: Articles for Christmas festivities and parts and accessories thereof:
9505.10.50: Other ………………………………………………Free.
9505.90: Other:
9505.90.60: Other ……………………………………………….Free.
Pursuant to the chapter notes, “fancy dress, of textiles, of chapter 61 or 62,” are
excluded from classification under Chapter 95. Ch. 95, Note 1(e). Also excluded are
“[s]ports bags or other containers of heading 4202, 4303 or 4304,” Ch. 95, Note 1(d),
and “gloves, mittens and mitts (classified according to their constituent material),” Ch.
95, Note 1(u).
Defendant contends the jacket, pants, and gloves are properly classified as
articles of apparel pursuant to subheadings of Chapter 61, and the sack is properly
classified pursuant to a subheading of Chapter 42. Def.’s XMSJ at 1-2. Chapter 61
covers “Articles of Apparel and Clothing Accessories, Knitted or Crocheted.” Chapter
42 covers “Articles of Leather; Saddlery and Harness; Travel Goods, Handbags and
Similar Containers; Articles of Animal Gut (other than Silkworm Gut).” The specific
subheadings (and relevant legal notes) asserted by Defendant are as follows:
6103: Men’s or boys’ . . . trousers, . . . breeches and shorts (other than swimwear),
knitted or crocheted:
6103.43: Of synthetic fibers:
6103.43.15: Other …………………………..………….…28.2% ad valorem.
6105: Men’s or boys’ shirts, knitted or crocheted:
6105.20: Of man-made fibers:
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6105.20.20: Other ……………………….…………...…….32% ad valorem.
6116: Gloves, mittens and mitts, knitted or crocheted:
6116.93: Of synthetic fibers:
6116.93.94: Other: With fourchettes…………………….18.6% ad valorem.
4202: [T]traveling bags, . . . knapsacks and backpacks, handbags, shopping bags, . . .
sports bags, . . . and similar containers, . . . of textile materials, . . . or wholly or
mainly covered with such materials . . . :
4202.92: Other: With outer surface of sheeting of plastic or of textile materials:
Travel, sports and similar bags: With outer surface of textile materials:
4202.92.30: Other ………………………….……………. 17.6% ad valorem.
Section XI, which includes Chapter 61, excludes “[a]rticles of chapter 95.” Sect.
XI, Note 1(t). 11 Pursuant to Note 9 to Chapter 61, “[g]arments of this chapter designed
for left over right closure at the front shall be regarded as men's or boys' garments.” Ch.
61, Note 9. Chapter 42 also excludes “[a]rticles of chapter 95.” Ch. 42, Note 1(l).
Pursuant to Additional U.S. Note 1 to Chapter 42, “[f]or the purposes of heading 4202,
the expression ‘travel, sports and similar bags’ means goods . . . of a kind designed for
carrying clothing and other personal effects during travel, including backpacks and
shopping bags of this heading . . . .” Ch. 42, Add’l U.S. Note 1.
11Also relevant is Note 14 to Section XI, which provides that “[u]nless the context
otherwise requires, textile garments of different headings are to be classified in their
own headings even if put up in sets for retail sale. For the purposes of this note, the
expression ‘textile garments’ means garments of headings 6101 to 6114 and headings
6201 to 6211.” Sect. XI, Note 14.
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The legally binding notes attendant to Chapters 42, 61, and 95 demonstrate that
articles may be described by headings of each chapter, and “expressly resolve[] this
conflict in favor of classification in chapter 95” unless the article falls into one of Chapter
95’s exclusionary notes. See Michael Simon Design, Inc. v. United States, 501 F.3d
1303, 1305, 1306-07 (Fed. Cir. 2007) (explaining that note 1(e) to Chapter 95 excludes
“only certain clothing articles”; thus, festive sweaters were properly classified as festive
articles and not wearing apparel). In other words, Chapter 95’s exclusionary notes
provide exceptions to the general rule of classification thereunder for particular articles
of Chapters 42, 61, and 62. See Sect. XI, Note 1(t) (Chapter 61 excludes “[a]rticles of
chapter 95); Ch. 42, Note 1(l) (Chapter 42 excludes “[a]rticles of chapter 95). But see
Ch. 95, Notes 1(d), (e), (u) (“[s]ports bags or other containers” of headings 4202, 4303,
and 4304; “fancy dress, of textiles, of chapter 61 or 62”; and “gloves . . . (classified
according to their constituent material)” are not covered by Chapter 95). Accordingly,
for Plaintiff’s asserted classification to be correct, the components of the Santa Suit
must be prima facie classifiable as festive articles and must not be covered by any of
Chapter 95’s exclusions. As discussed below, the Santa Suit components are covered
by the exclusions to Chapter 95; thus, the court need not and does not reach the issue
of whether they constitute festive articles. 12
12 In its moving brief, Plaintiff contends that
the classification of the Santa [Suit] at issue should not be determined on
the basis of an analysis that focuses primarily and arbitrarily on the type of
construction and/or the quality of the materials, and diminishes the
intended use of the costume, and the festive holiday or occasion for which
it was designed. . . . The determination as to whether a costume is
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III. Classification of the Jacket and Pants
The GRIs govern the proper classification of merchandise and are applied in
numerical order. N. Am. Processing Co., 236 F.3d at 698. Pursuant to GRI 1, the court
first “must determine the appropriate classification ‘according to the terms of the
headings and any relative section or chapter notes' . . . [with] terms of the HTSUS . . .
construed according to their common commercial meaning.” Millenium Lumber Dist.
Ltd. v. United States, 558 F.3d 1326, 1328-29 (Fed. Cir. 2009) (citations omitted).
A. Construction of Note 1(e) to Chapter 95
Pursuant to Note 1(e), “fancy dress, of textiles, of chapter 61 or 62,” is barred
from classification under chapter 95. Ch. 95, Note 1(e). That phrase is not defined in
the HTSUS. In Rubie’s II, however, the Federal Circuit spoke to the meaning of the
phrase and addressed when costumes should be classified as festive articles rather
than wearing apparel. 337 F.3d at 1356-60. The court’s analysis, therefore, begins with
classifiable as a festive article is more properly based upon whether it is
closely associated with a festive occasion, whether it is displayed or used
principally during that festive occasion, and whether its nature and
appearance precludes its characterization as wearing apparel.
Pl.’s MSJ at 22 (emphasis added). According to Plaintiff, the Federal Circuit’s opinions
in Michael Simon Design, 501 F.3d 1303, and Park B. Smith, 347 F.3d 922, provide the
proper criteria for classifying the Santa Suit. Pl.’s MSJ at 22-23. Those cases provide
the test for determining whether an article is a festive article under heading 9505. See
Michael Simon Design, 501 F.3d at 1306 (citing Park B. Smith, 347 F.3d at 927). They
do not interpret Chapter 95’s exclusionary notes, and, thus, address only part of the
pertinent inquiry. As discussed infra, Chapter 95’s exclusionary notes bar classification
pursuant to that chapter; therefore, the court does not address Plaintiff’s arguments
regarding the proper application of the Federal Circuit’s festive article test to the subject
merchandise. See Pl.’s MSJ at 19-21; Pl.’s Affirmation in Opp’n to Summ. J. Mot. (“Pl.’s
Resp.”) at 8-9, ECF No. 32; see also Def.’s XMSJ at 20-21; Reply Mem. of Law in Supp.
of the Government’s Cross-Mot. for Summ. J. (“Def.’s Reply”) at 12-13, ECF No. 35.
Court No. 13-00407 Page 15
an explication of the Federal Circuit’s opinion and related judicial and Customs rulings
to the extent that they illuminate the proper construction of Note 1(e).
The merchandise at issue in Rubie’s II consisted of five textile costumes
“traditionally worn [at] . . . Halloween or to costume parties.” Id. at 1352. They included
a child-sized “Witch of the Webs” dress, “Pirate Boy” top and pants, and “Witch” dress,
an adult-sized “Abdul, Sheik of Arabia” sheath, and a “Cute and Cuddly Clown”
jumpsuit. Id. at 1352 & n.2. On June 2, 1997, in response to a request filed by Rubie’s,
Customs determined “that the ‘Cute and Cuddly Clown’ would be classified as ‘Babies’
garments and clothing accessories’ with a duty rate of 16.7 (now 16.1) percent ad
valorem, while the other costumes . . . would be classified as ‘festive articles,’ requiring
duty free entry.” Id. at 1352 (citing HQ 959545 (June 2, 1997)). Thereafter, Customs
denied the Domestic Interested Party Petition filed by Rubie’s, which asserted that the
five textile costumes should be classified as wearing apparel, and affirmed its prior
determination. Id. at 1352-53 (citing HQ 961447 (July 22, 1998) (“HQ 961447”)); see
also supra note 8.
HQ 961447 reiterated the classification analysis that Customs had relied on for
the decade prior to its issuance, tracing its origin to a case in this court styled as
Traveler Trading Co. v. United States, 13 CIT 380, 713 F. Supp. 409 (1989)). See HQ
961447 at 2; Rubie’s II, 337 F.3d at 1353, 1358. In that case, Traveler Trading Co.
(“Traveler”) sued the United States regarding Customs’ classification of “flimsy” adult
textile costumes as “wearing apparel” under the predecessor to the HTSUS, the TSUS,
rather than as “toys” as it classifies children’s costumes. Traveler, 13 CIT at 380, 384,
Court No. 13-00407 Page 16
713 F. Supp. at 410, 413. During settlement negotiations, Customs reconsidered its
basis for distinguishing adult Halloween costumes from children’s Halloween costumes.
Id. at 380-81, 713 F. Supp. at 410-11. Customs reasoned that “[t]hese are costumes
which are flimsily constructed and possess no significant utilitarian value. . . . These
costumes are distinguishable from theatrical costumes or religious and folk-like regalia
which are detailed, well-constructed, and intended for a specific use other than mere
amusement.” Id. at 380-81, 713 F. Supp. at 410-11 (citation omitted). In ruling on
Traveler’s application for attorneys’ fees and costs, the court deemed “unreasonable”
Customs’ initial classification of “flimsy [adult] Halloween costumes as wearing apparel.”
Id. at 383-84, 713 F. Supp. at 412-13 (distinguishing “expensive, well-constructed
ballroom gowns, safari outfits, certain types of uniforms, and other adult garments,”
which “may serve as both Halloween costumes and wearing apparel” from “witches,
pirates, and [similar costumes], which are flimsily constructed”) (internal quotation
marks and citation omitted).
A few years later, Traveler again sued the United States over Customs’
“classification of textile costumes as articles of ‘fancy dress’ excluded from classification
in Chapter 95 [of the HTSUS].” HQ 961447 at 2 (citing Traveler Trading Co. v. United
States, Court No. 91-02-00084). Customs subsequently determined that the court’s
opinion in Traveler and recent judicial opinions concerning relevant provisions of the
HTSUS meant that it should “reexamine[] its view regarding the scope of the term ‘fancy
dress’ as it relates to costumes.” HQ 961447 at 2 (noting that “Customs [initially] took
the view that fancy dress included ‘all’ textile costumes regardless of quality, durability,
Court No. 13-00407 Page 17
or the nature of the item”). Following the execution of a settlement agreement between
Customs and Traveler, Customs issued HQ 957318 (Nov. 15, 1994) (“HQ 957318”),
wherein it stated that costumes that “are of a flimsy nature and construction, lack
durability, and are generally recognized as not normal articles of apparel” would be
classified as festive articles. HQ 957318 at 1; see also HQ 961447 at 2.
In later rulings, Customs identified certain characteristics that it would assess to
determine whether an article was “of a flimsy nature and construction, lacking in
durability, and generally [not] recognized as a normal article of apparel.” HQ 961447 at
4 (citations omitted) (identifying “zipper closures,” “abundant styling features such as a
fitted bodice with darts,” “petal shaped panels sewn into a waistline,” and
“sheer/decorative panels sewn into the seams of costumes” as indicative of fancy
dress). Applying those characteristics to the merchandise at issue in Rubie’s II,
Customs determined that four of the five costumes were classifiable as festive articles.
Id. (noting that those costumes “featured simple pull-on type garments with no zippers,
inset panels, darts, or hoops,” and raw and unhemmed edges leaving the costumes
“susceptible to runs and frays”). In contrast, the “Cute and Cuddly Clown” costume
“was particularly well-constructed and had a substantial amount of finishing work (i.e.,
the sewing used to construct the article),” and did not have any raw edges. Id. For
those reasons, Customs classified the Cute and Cuddly Clown costume as wearing
apparel. Id.
On appeal to the USCIT, the court disagreed with Customs’ interpretation of Note
1(e). Rubie’s I, 26 CIT at 210, 196 F. Supp. 2d at 1322. Citing several dictionary
Court No. 13-00407 Page 18
definitions, the court defined “fancy dress” as synonymous with “costume” generally,
and, therefore, rejected the Government’s argument that “fancy dress” is limited to
“elaborate or substantial costumes such as those worn by actors in the theater, and
formal wear such as tuxedos and ball gowns worn to special events.” Id. at 216-17, 19
F. Supp. 2d at 1328 (citations omitted). 13 The Rubie’s I court proceeded to examine the
scope of Chapters 61 and 62 to determine the type of fancy dress (costumes) excluded.
Id. at 219, 196 F. Supp. 2d at 1330-31. Relying on the U.S. Supreme Court’s opinion in
Arnold 14 and this court’s opinion in H.I.M./Fathom, 15 the Rubie’s I court found that “for
merchandise to be properly classified within Chapters 61 or 62, strong emphasis must
be placed on the material[16] of the merchandise and whether it could be worn at a
particular time.” Id. at 219, 196 F. Supp. at 1331. Because the costumes at issue were
“meant to adorn the human body at a particular time, either on Halloween or at any
other event where the wearer desires to mimic another,” and as they were “within the
13 The Rubie’s I court determined that Traveler, which addressed tariff provisions
covering wearing apparel and toys, was inapposite because it related to the pre-HTSUS
code and the interpretation of the term “fancy dress” was not at issue. Rubie’s I, 26 CIT
at 217-18, 196 F. Supp. 2d at 1329. Accordingly, the Rubie’s I court rejected Customs’
reliance on “[t]he criteria of flimsiness” favored in Traveler as a way to distinguish
costumes that are classifiable as toys from costumes that are classifiable as wearing
apparel. Id.
14 In Arnold, the Court defined “wearing apparel” as “embracing all articles which are
ordinarily worn, [] dress in general.” Arnold v. United States, 147 U.S. 494, 496 (1893).
15 In H.I.M./Fathom, the court concluded that wetsuits constituted clothing because they
“are articles worn as an outer covering for the human body at a particular time.”
H.I.M./Fathom, Inc. v. United States, 21 CIT 776, 781, 981 F. Supp. 610, 615 (1997).
16 Chapter 61 covers knitted or crocheted “Articles of Apparel and Clothing
Accessories,” whereas Chapter 62 covers “Articles of Apparel and Clothing
Accessories” that are not knitted or crocheted.
Court No. 13-00407 Page 19
norms of apparel as it is viewed in the United States,” the Rubie’s I court held that the
costumes were classifiable pursuant to subheading 6114.30.30 of the HTSUS. Id. at
219-220, 196 F. Supp. at 1331.
The Federal Circuit reversed on the basis that HQ 961447 was sufficiently
persuasive to be accorded Skidmore deference. See Rubie’s II, 337 F.3d at 1356;
Skidmore, 323 U.S. at 140. The Federal Circuit agreed with the lower court that “fancy
dress” means “a costume (as for a masquerade or party) departing from conventional
style and [usually] representing a fictional or historical character.” Rubie’s II, 337 F.3d
at 1356-57 (citing Rubie’s I, 26 CIT at 216, 196 F. Supp. at 1327); see also id. at 1357
(“That the term ‘fancy dress,’ . . . includes costumes is plain enough . . . .”). According
to the Federal Circuit, however, the lower court insufficiently analyzed the type of fancy
dress excluded:
a reading of the exclusion in Note 1(e) to Chapter 95, HTSUS, that
focuses solely on the term “fancy dress” and turns a blind eye to the
immediately following words “of textiles, of chapter 61 or 62” construes the
term fancy dress in disregard of the context of the exclusion as a whole. . .
. The words in Note 1(e) “of textiles, of chapter 61 or 62” immediately
following “fancy dress,” establish the context in which the term “fancy
dress” is to be applied, and thereby circumscribe, qualify, and limit the
type of “fancy dress” that was intended by the drafters to be excluded from
Chapter 95, HTSUS, to textile costumes falling within the purview “of
chapter 61 or 62.” Thus, . . . the exclusion to Chapter 95, HTSUS,
encompasses textile costumes that are classifiable as “wearing apparel”
under Chapter 61 or 62.
Id. (emphasis added). The Federal Circuit interpreted “wearing apparel” as “embracing
all articles which are ordinarily worn—dress in general,” id. (quoting Arnold, 147 U.S. at
496), and “clothes or coverings for the human body worn for decency or comfort,” id.
Court No. 13-00407 Page 20
(quoting Antonio Pompeo v. United States, 40 Cust. Ct. 362, 364 (1958) (also noting
that “common knowledge indicates that adornment is also an element of many articles
of wearing apparel”)).
“Cognizant of [those] definitions,” the Federal Circuit found HQ 961447 “logical
and well-reasoned.” Id. The court determined that HQ 961447 correctly classifies as
festive articles “flimsy, non-durable costumes having utility and used as well for festive
occasions, based on functional or structural deficiencies as compared with the standard
counterpart articles (e.g., wearing apparel).” Id. The court cited Customs’ identification
of “the texture and quality of the materials as ‘flimsy and non-durable’” suggesting that
the textile costumes’ “principal intended use is for a one time festive occasion [which]
[is] distinct from ‘wearing apparel’ which the courts have held to be used for decency,
comfort, adornment or protection.” Id. (quoting HQ 961447) (second alteration
added). 17 Additionally, although the subject merchandise “may simulate the structural
features of wearing apparel, and have some incidents of ‘clothes or coverings for the
human body worn for decency or comfort,’” id. at 1358 (quoting Antonio Pompeo, 40
Cust. Ct. at 364), “they are not practical ‘articles which are ordinarily worn,’” id. (quoting
Arnold, 147 U.S. at 496); see also id. (“[T]he Halloween costumes . . . have enormous
‘make believe’ or festive value . . . and incidentally afford the element of covering for
decency or comfort.”). The Federal Circuit, therefore, was persuaded by Customs’ view
17The court also approved of Customs’ consideration of “such factors as the extent of
the styling features such as zippers, inset panels, darts or hoops, and whether the
edges of the materials had been left raw or finished” to determine the “texture and
quality of the [costumes’] materials.” Rubie’s II, 337 F.3d at 1357 (citing HQ 961447).
Court No. 13-00407 Page 21
that “fancy dress” for purposes of Note 1(e) does not include “imported textile costumes
[that] are of a flimsy nature and construction, lacking in durability and generally not
recognized as normal articles of wearing apparel”; instead, such costumes are
classifiable as “festive articles.” Id. at 1360. 18 Accordingly, this court is guided by the
18 Strictly speaking, the Federal Circuit held that “[w]hen the imported textile costumes
are of a flimsy nature and construction, lacking in durability and generally not
recognized as normal articles of wearing apparel, it is neither illogical nor unreasonable
to conclude that the subject merchandise is classifiable as festive articles.” Id. at 1360.
However, the context of the opinion, the court’s discussion therein, and the fact that
“festive articles” and “fancy dress, of textiles, of Chapters 61 or 62” are mutually
exclusive categories, supports the conclusion that the court’s holding regarding the
nature of the items that belong in the first category reflect its opinion regarding those
that do not belong in the second category.
This understanding is supported by Customs’ ICP regarding the classification of
textile costumes. See supra note 9; Textile Costumes ICP. Pursuant to Rubie’s II, the
Textile Costumes ICP recommends that “all flimsy, non-durable textile costumes that
are not recognized as ordinary articles of apparel are classified under 9505.90.6000,
HTSUS[] (flimsy); all textile costumes that exceed the flimsy, non-durable standards or
are recognized as ordinary articles of apparel are classified in Chapters 61 or 62,
HTSUS[] (well-made).” Id. at 10.
Additionally, the ICP’s guidance recognizes that Customs’ flimsiness analysis is
distinct from the inquiry whether an item is an ordinary article of apparel. This
distinction makes sense given the origin of Customs’ flimsiness analysis as determining
“the scope of the term ‘fancy dress’ as it relates to costumes.” Textile Costumes ICP at
9; see also HQ 961447 at 2. Customs does not employ its flimsiness analysis to
determine what constitutes apparel for purposes of Chapter 61 or 62; rather, “CBP only
applies this test to garments which are prima facie classifiable in Chapter 95.” HQ
H145555 (Aug. 6, 2012) at 9 (declining to apply the test for what constitutes “fancy
dress” for purposes of Note 1(e) as discussed in Rubie’s II to determine whether the
subject item (the “Snuggie®”) should be classified as a garment or a blanket) (citing
Textile Costumes ICP). But cf. Allstar Marketing Group, LLC v. United States, 41 CIT
___, ___, 211 F. Supp. 3d 1319, 1329-31 (2017) (Rubie’s II’s discussion of what
constitutes “wearing apparel” informs the court’s interpretation of “garment” pursuant to
subheading 6114.30.30).
Court No. 13-00407 Page 22
same criteria. 19 Avenues in Leather, Inc. v. United States, 423 F.3d 1326, 1331 (Fed.
Cir. 2005) (the Federal Circuit’s interpretation of tariff terms are binding on this court).
B. Whether the Jacket and Pants are “Fancy Dress, of Textiles, of Chapter
61 or 62”
a. Parties’ Contentions
Plaintiff contends that the Santa Suit “is not well-made, and does not meet
wearing apparel production standards.” Pl.’s MSJ at 9. 20 To support its contention,
Plaintiff primarily relies on a report prepared by its expert witness, Roni Start. 21 See
19 Plaintiff contends that Rubie’s II “established” that the type of fancy dress excluded by
Note 1(e) consists of “expensive and well-constructed ballroom gowns, safari outfits
such as those used for hunting, certain types of uniforms, and other adult garments.
Pl.’s MSJ at 15. As Defendant contends, however, the Federal Circuit did not disturb
Customs’ finding that the “Cute and Cuddly Clown” costume met the criteria for fancy
dress. Def.’s XMSJ at 15. Thus, the Federal Circuit’s understanding of that term is not
so limited. Moreover, the Rubie’s II court’s only reference to such items is contained in
a passing reference to what “Customs determined.” 337 F.3d at 1356 (“Customs
determined that ‘fancy dress . . . of chapter 61 or 62’ refers to elaborate or substantial
costumes such as ‘expensive, well-constructed ballroom gowns, safari outfits, certain
types of uniforms, and other adult garments.’”) (citing HQ 961447). Customs did not,
however, define fancy dress in that manner. Rather, it was, in part, the Traveler court’s
view that “expensive, well-constructed ballroom gowns, safari outfits, certain types of
uniforms, and other adult garments may serve both as Halloween costumes and
wearing apparel” that prompted Customs to “reexamine[] its view regarding the scope of
the term ‘fancy dress’ as it relates to costumes.” HQ 961447 at 2; see also Traveler, 13
CIT at 383, 713 F. Supp. at 412.
20 Plaintiff presents its arguments in connection with the Santa Suit generally, although,
as previously noted, only the jacket, pants, gloves, and sack are at issue here. See
supra note 4 and accompanying text.
21 Defendant does not contest Ms. Start’s qualifications. See Def.’s XMSJ at 28-32.
Ms. Start is the Department Chair of Apparel Industry Management and Menswear at
the Fashion Institute of Design and Merchandising in Los Angeles, California, and the
Owner/President of RJM Consulting. Start Report, Ex. A (“Start Resume”), ECF No. 28-
3. Plaintiff also submitted Ms. Start’s deposition testimony. See Pl.’s MSJ, Ex. 5 (“Start
Dep.”), ECF No. 28-5.
Court No. 13-00407 Page 23
Pl.’s MSJ, Ex. 3 (“Start Report”), ECF No. 28-3. 22 Ms. Start distinguishes “well-made”
from “well-sewn,” and concludes that the Santa Suit “is not well-made.” Start Report at
10 (“Parts of Rubies’ Santa Claus costume are ‘well sewn’ but not ‘well made’ . . . .”);
see also Pl.’s Resp. at 2 (“A well-sewn costume . . . [is] not necessarily . . . an article of
wearing apparel for tariff classification purposes.”); id. at 5 (“The distinction between a
well-made garment and a well-sewn costume is critical [to] determining whether . . . the
[Santa Suit] is ‘fancy dress.’”). As evidence that the Santa Suit is not well-made, Ms.
Start points to its one-size fits all sizing, the quality of fabric and lining, and its
flammability directive. Start Report at 10-11; see also Pl.’s MSJ at 10-11; Pl.’s Resp. at
3-4.
Plaintiff also contends that the Santa Suit “is not a well-constructed ball gown, a
safari outfit, or like garment that one would expect to find at a stylish soiree. It is not a
uniform or an adult garment. It is a costume . . . .” Pl.’s MSJ at 15. According to
Plaintiff, the Santa Suit “is worn, [but] it is not ordinarily worn; instead, it is placed on the
body and intended to depict Santa Claus.” Pl.’s Resp. at 8; see also Pl.’s MSJ at 23
(“The [Santa Suit is] not ordinarily worn and [was] created for Christmas festivities.”).
22 Plaintiff also contends that Customs erred because “[v]irtually all of Rubies’ costumes
are . . . sewn in [costume] factories,” and “[a] ‘costume’ factory . . . generally [does not]
make[] . . . apparel[,] which has vastly different quality requirements.” Pl.’s MSJ at 11
(citing Pl.’s MSJ, Ex. 7 (“Beige Decl.”), ECF No. 28-7). Plaintiff’s argument is premised
on facts that are both disputed by Defendant and that are immaterial to the classification
issue in question; thus, the court will not consider it. See Pl.’s SOF ¶ 10; Def.’s Resp. to
Pl.’s SOF ¶ 10.
Court No. 13-00407 Page 24
Finally, Plaintiff contends that the Santa Suit’s design, use, function, and commercial
market are relevant factors. Pl.’s Resp. at 9-11.
In response to Plaintiff’s expert, Defendant asserts that Ms. Start has too
“narrowly define[d] articles of apparel by equating them with articles of ‘fashion.’” Def.’s
XMSJ at 17 (noting that Ms. Start concluded that because the Santa Suit “was never
part of any fashion development process” it is not “apparel” but is instead a “costume”)
(quoting Start Report at 5-8). Pointing to the court’s Allstar opinion, Defendant notes
that none of the dictionary definitions cited by the court in its examination of the term
“apparel” refer to “fashion” or a “fashion development process.” Id. at 17-18 (citing
Allstar, 211 F. Supp. 3d at 1329-31). Defendant cites several additional cases to
support its contention “that ‘non-traditional’ articles of clothing constitute wearing
apparel for classification purposes.” Id. at 18-19 (citing Riddell, Inc. v. United States,
754 F.3d 1375 (Fed. Cir. 2014) (football jerseys, pants, and girdles); Lemans Corp. v.
United States, 660 F.3d 1311 (Fed. Cir. 2011) (motocross jerseys and pants, and
motorcycle jackets); H.I.M./Fathom, 981 F. Supp. 610 (wetsuits and related
accessories)).
Additionally, Defendant asserts the court should accord little weight to Ms. Start’s
expert opinion because it is unreliable and irrelevant. Def.’s XMSJ at 28-32; Def.’s
Reply at 9-12. Specifically, Defendant contends that Ms. Start’s opinion is “not based
on relevant industry standards” and instead represents her “subjective beliefs,” is
contradictory at times, arbitrary, and lacking a logical foundation. Def.’s XMSJ at 30.
Defendant further contends that Ms. Start’s opinion “touch[es] on issues of common
Court No. 13-00407 Page 25
knowledge” and contains “an entire section dedicated to fashion theory and
development,” which is “irrelevant to whether the Santa Suit is an article of ‘wearing
apparel’ or a ‘festive article’” for classification purposes. Id. at 31.
Finally, Defendant contends that the Santa Suit “is well[-]constructed, made to
last[,] and [able to] withstand multiple wearings and cleanings,” and “provides decency,
comfort, adornment and protection.” Id. at 13.
b. Consideration of Plaintiff’s Expert’s Opinion
The court’s consideration of Plaintiff’s proffered expert testimony is guided by the
factors stated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and Rule
702 of the Federal Rules of Evidence. See Libas, Ltd. v. United States, 193 F.3d 1361,
1366 (Fed. Cir. 1999); G.G. Marck & Associates, Inc. v. United States, Slip Op. 15-62,
2015 WL 3757040, at *9 (2015) (relying on Rule 702 to determine the weight to afford
expert testimony to resolve summary judgment motions in a classification case).
Pursuant to Rule 702, expert testimony is admissible when
(a) the expert's scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods; and (d) the
expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702. The “trial judge, acting as ‘gatekeeper,’ must ‘ensure that any and all
[expert] testimony or evidence admitted is not only relevant, but reliable.’” Libas, 193
F.3d at 1366 (quoting Daubert, 509 U.S. at 589); see also Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137 (1999) (extending the court’s “gatekeeping” role to all expert
Court No. 13-00407 Page 26
testimony). 23 In short, “for an expert witness's testimony to be admissible, it must be
reliable, relevant, and helpful to the trier of fact.” G.G. Marck, 2015 WL 3757040, at *9.
Ms. Start’s opinion fails to meet any of the Rule 702 requirements. Preliminarily,
the correct classification of the Santa Suit is a legal issue, not a factual issue, and one
that is resolved on the basis of the undisputed material facts set forth above. Bausch &
Lomb, 148 F.3d at 1365; supra Background Sect. I. Thus, there is no “trier of fact” to
aid.
Moreover, Ms. Start’s opinion is unhelpful--and, thus, irrelevant--because she
approaches the inquiry from the perspective of “fashion theory” and “fashion
development,” Start Report at 5-8, but whether an article constitutes apparel or fancy
dress for classification purposes does not depend on whether it is fashionable, see,
e.g., Rubie’s II, 337 F.3d at 1357. Ms. Start’s analysis of the Santa Suit applies
standards relevant to “menswear,” Start Report at 10-11, but those are not the
standards articulated by the Federal Circuit, see Rubie’s II, 337 F.3d at 1357, 1360. 24
Ms. Start’s opinion on this issue is also unreliable. “[R]eliability is the touchstone
for expert testimony,” Libas, 193 F.3d at 1366, and it requires more than subjective
23 The Libas court noted that “Daubert and Kumho were decided in the context of
determining standards for the admissibility of expert testimony under the Federal Rules
of Evidence,” but opined that “the proposition for which they stand, that expert testimony
must be reliable, goes to the weight that evidence is to be accorded as well as to its
admissibility.” 193 F.3d at 1366.
24 Plaintiff, therefore, is incorrect in its assertion that the Start Report “is based upon
[Ms. Start’s] comprehension and understanding of relevant industrial standards in the
wearing apparel industry, and not on any subjective belief.” Pl.’s Resp. at 4 (emphasis
added).
Court No. 13-00407 Page 27
belief or unsupported speculation, Daubert, 509 U.S. at 590. Ms. Start’s assertions are
highly general and often unsupported. For example, she offers no basis for her
distinction between “well-made” and “well-sewn” for purposes of identifying wearing
apparel. See Start Report at 10. Ms. Start then contradicts her report during her
deposition when she acknowledges that apparel need not be “well-made,” see Start
Dep. 122:11-14, and that the “[Santa Suit] jacket in particular was pretty much well-
made but [has] an acetate lining,” id. at 149:20-150:3. In fact, Ms. Start admitted that
she formed her opinion that the Santa Suit was not apparel before she even examined
it. Id. at 124:13-21; see also id. at 182:22-183:4 (opining that a Santa Claus costume
“would still be a costume” even if “it was the most well-made”).
Ms. Start’s preconceived opinion regarding the Santa Suit highlights the problem
with her expert testimony. She begins her report by stating that she has “been asked by
counsel for investigate [sic] and opine on the extent to which the Santa Claus costume
which [Plaintiff] created is a costume or well-made apparel, and therefore which
customs classification should be applied.” Start Report at 4. She concludes her report
by noting that “[i]n casual discussions with friends and colleagues about this question of
whether a Santa Claus costume is a costume or apparel, it is usually followed by
laughter. They cannot believe someone would consider a Santa costume as apparel.”
Start Report at 12. Ms. Start misunderstands the precise nature of the inquiry--or was
misinformed. The issue is not whether the Santa Suit is a costume or apparel as those
terms are colloquially understood; rather, the issue is whether the Santa Suit is “fancy
dress, of textiles, of Chapters 61 or 62,” or a “festive article,” as those terms are defined
Court No. 13-00407 Page 28
in the HTSUS and relevant case law, which is a legal question. Though Ms. Start may
be a menswear/apparel fashion expert, her expertise is not helpful to the court’s
analysis of the legal question before it, and, therefore, the court will not consider the
Start Report in making its determination.
c. The Jacket and Pants are “Fancy Dress, of Textiles, of Chapters 61
or 62”
The court is guided by the criteria stated in Rubie’s II; that is, whether the jacket
and pants “are of a flimsy nature and construction, lacking in durability[,] and generally
not recognized as normal articles of wearing apparel.” 337 F.3d at 1360. 25
Considerations relevant to flimsiness and durability include the presence of “zippers,
inset panels, [and] darts or hoops, and whether the edges of the materials [are] raw or
finished.” Id. at 1357 (citing HQ 961447 generally as well as HQ 957948 and HQ
957952, which “set[] forth certain styling and sewing features of costumes which
exemplify the characteristics of ‘textile articles of fancy dress’ under Chapter 61 or 62”).
In contrast to the merchandise at issue in Rubie’s II, which “featured simple pull-
on type garments with no zippers,” and raw and unhemmed edges, HQ 961447 at 4;
25 Customs’ Textile Costumes ICP, upon which CBP relied in the underlying ruling,
further sets forth four criteria for assessing flimsiness and durability: styling,
construction, finishing touches, and embellishments. See Textile Costumes ICP at 11;
HQ H237067 at 8. The Textile Costumes ICP also recommends that “it is important to
consider the garment as a whole,” and “whether . . . it is reasonable to conclude that the
article is a normal article of apparel.” Textile Costumes ICP at 11. The only additional
criteria provided for determining whether an article is a normal article of apparel are that
“[n]ormal articles of apparel are usually designed for multiple wear and cleaning.” Id.
Here, Customs based its classification determination on its finding that the jacket and
pants are “well-made” pursuant to the ICP’s four-factor flimsiness criteria and “are
suitable for repeated wear and can only be dry cleaned.” See HQ H237067 at 9.
Court No. 13-00407 Page 29
see also Rubie’s II, 337 F.3d at 1352 n.2, the jacket, which is lined, has “a full front
opening secured by a zipper,” which is hidden by a left-over-right faux fur cover held in
place by two metal snaps, one at the collar of the jacket and one at the base of the
jacket, Def.’s SOF ¶¶ 4, 6-7. “The jacket has long sleeves with turned edges, trimmed
with white faux fur fabric cuffs,” id. ¶ 8, and “a straight cut hemmed bottom trimmed with
the same white faux fur fabric,” id. ¶ 9. The physical characteristics (and physical
inspection) of the jacket indicate a substantial, durable item that will survive multiple
wearings and cleanings over several Christmas seasons, see id. ¶¶ 3, 25-26.
The pants present a closer question. They are a “simple pull-on type garment”
with an elastic waist, but common knowledge dictates that the same may be said of
many pairs of pants that are unquestionably “wearing apparel.” The bottom of the pants
are not hemmed, though the image depicted on the packaging demonstrates that the
pants are to be tucked into the shoe covers; thus, the unhemmed bottom will not be
visible. See Physical Sample. The pants are lined, with tightly stitched interior seams,
and feature pockets with hemmed edges. Def.’s SOF ¶¶ 11-12. Taken together, the
pants, like the jacket, indicate a durable item that will survive multiple wearings and
cleanings. Id. ¶¶ 3, 25-26.
To be sure, the jacket and pants may be intended for use only during the
Christmas season. See Pl.’s MSJ at 22 (“It cannot be argued that people wear Santa
Claus costumes as everyday apparel . . . .”); Def.’s SOF ¶ 25. But regularity of wear is
not dispositive; items that are worn for specific, perhaps infrequent, purposes may
constitute wearing apparel. See Riddell, 754 F.3d at 1375 (football jersey’s pants, and
Court No. 13-00407 Page 30
girdles are classifiable as wearing apparel); Lemans, 660 F.3d at 1311 (motocross
jerseys and pants, and motorcycle jackets are wearing apparel); H.I.M./Fathom, 981 F.
Supp. at 610 (wetsuits and related accessories are wearing apparel).
There is language in Rubie’s II that suggests the festive value of the costumes at
issue disfavored classification as wearing apparel:
[while the imports may simulate the structural features of wearing apparel,
and have some incidents of “clothes or coverings for the human body worn
for decency or comfort,” Antonio [Pompeo], 40 Cust. Ct. at 364, they are
not practical “articles which are ordinarily worn,” Arnold, 147 U.S. at 496 . .
. . Rather, the Halloween costumes for consumers have enormous “make
believe” or festive value during appropriate occasions such as Halloween
and incidentally afford the element of covering for decency or comfort. To
the extent that such elements have any characteristics similar to “wearing
apparel” to consumers of Halloween costumes, such features are clearly
secondary to the costumes' festive value.
Rubie’s II, 337 F.3d at 1358 (emphasis added); see Pl.’s MSJ at 15-16 (contending the
Santa Suit’s “value as wearing apparel to the consumer is clearly secondary to its
‘make-believe’ or festive value”). The context in which the statement in Rubie’s II was
made, however, involved costumes so flimsy their “principal intended use [was] for a
one time festive occasion,” as “distinct from ‘wearing apparel’ which courts have held to
be used for decency, comfort, adornment or protection.” Rubie’s II, 337 F.3d at 1356
(quoting HQ 961447 at 3). 26 Thus, they were not “practical” articles of apparel, and their
26 The costumes at issue in Rubie’s II appear to resemble the children’s Halloween
costumes Plaintiff produces and sells, which “do not have finished edges or zippers,
and close in the back with Velcro or a snap, or are made to ‘slipover’ the wearer,” are
intended for one-time use, and retail for 10-20 USD. Def.’s SOF ¶¶ 19, 21-23. In
contrast, the Santa Suit retails for 100 USD and is intended to be worn numerous times.
Id. ¶¶ 25-26.
Court No. 13-00407 Page 31
festive value exceeded their value as wearing apparel. See id. at 1358. In contrast, the
Santa Suit jacket and pants are manufactured for “repeated[]” wear over several
Christmas seasons, i.e., years, are suitable for dry cleaning, and provide warmth and
protection to the wearer. Def.’s SOF ¶¶ 3, 25-27. They are articles--jackets and pants--
that are “ordinarily worn.” See Arnold, 147 U.S. at 496 (the term “wearing apparel”
covers “all articles of dress”).
Further, the court does not interpret Rubie’s II as supplying a bright-line rule
whereby any item of festive value is excluded from classification as wearing apparel.
Note 1(e) excludes from Chapter 95 articles that are prima facie festive articles but also
“fancy dress, of textiles, of Chapter 61 or 62.” In other words, Note 1(e) excludes a
subset of festive articles that also meet certain requirements. Undue emphasis on the
festive or make-believe nature of the article would nullify Note 1(e); such an interpretive
approach has long been disfavored. Cf, e.g., D. Ginsberg & Sons, Inc. v. Popkin, 285
U.S. 204, 208 (1932) (it is a “cardinal rule” that “if possible, effect shall be given to every
clause and part of a statute”). Accordingly, the Santa Suit’s association with the
Christmas season does not foreclose its classification as wearing apparel. 27
27 Plaintiff seeks to rely on the court’s recent Allstar opinion. Pl.’s MSJ at 23. According
to Plaintiff, the court, in Allstar, noted that Rubie’s II “held that costumes are not
ordinarily worn, and although costumes impart decency or comfort for the wearer, such
benefits were incidental to their primary purpose, that is, . . . Halloween fun.” Id. (citing
Allstar, 211 F. Supp. 3d at 1331). The Allstar court discusses the Rubie’s II court’s
findings vis-à-vis the costumes at issue in that case, not costumes generally. The court
did not--and does not--construe Rubie’s II as foreclosing all costumes from classification
as wearing apparel. If all items reflecting festive or make-believe value were eliminated
from the scope of the phrase “of textiles, of Chapter 61 or 62,” there would be nothing
for Note 1(e) to exclude.
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In sum, the jacket and pants constitute fancy dress of a durable, non-flimsy
nature, and are normal articles of apparel classifiable pursuant to Chapter 61. They
are, therefore, excluded from Chapter 95. 28
Proceeding to the precise classification, “[g]arments of [Chapter 61] designed for
left over right closure at the front shall be regarded as men's or boys' garments.” Ch.
61, Note 9. The jacket has a left-over-right faux fur cover held in place by two metal
snaps, one at the collar of the jacket and one at the base of the jacket, Def.’s SOF ¶¶ 6-
7; thus, it is classifiable as a men’s or boy’s garment.
Heading 6105, pursuant to which Customs classified the jacket, covers “[m]en’s
or boy’s shirts, knitted or crocheted.” See HQ H237067 at 11. However, Note 4 to
28 This finding is supported by Explanatory Note (“EN”) 95.05, which suggests that
heading 9505 covers “[f]estive, carnival or other entertainment articles, which in view of
their intended use are generally made of non̻durable material,” for example, “[a]rticles
of fancy dress, [such as] masks, false ears and noses, wigs, false beards and
moustaches,” but not “fancy dress of textile materials, of Chapter 61 or 62.” EN 95.05
(boldtype omitted) (other emphasis added). The Federal Circuit disapproved of the
Rubie’s I court’s reliance on EN 95.05 as support for the lower court’s conclusion that
the costumes at issue did not belong in Chapter 95 because the type of fancy dress EN
95.05 contemplates as covered thereunder includes accessories to costumes rather
than the actual textile costumes. Rubie’s II, 337 F.3d at 1359 (“Although the examples
in the Explanatory Notes are probative and sometimes illuminating, we shall not employ
their limiting characteristics, to the extent there are any, to narrow the language of the
classification heading itself. Nothing from the pertinent subheading 9505.90.6000—
‘Festive, carnival or other entertainment articles: Other: Other’—limits 9505.90.6000
only to accessories.”). It is also true, however, that the ENs are generally “indicative of
proper interpretation” of the tariff schedule. Lynteq, 976 F.2d at 699. Although not all
festive articles are made of non-durable material, see Michael Simon Design, 501 F.3d
at 1305, 1306-07 (classifying festive sweaters as festive articles), EN 95.05 supports
the court’s consideration of the Santa Suit jacket’s durability, and its finding that the
jacket’s durability distinguishes it from the costumes in Rubie’s II and disfavors
classification in Chapter 95.
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Chapter 61 states that “[h]eading[] 6105 . . . [does] not cover . . . garments having an
average of less than 10 stitches per linear centimeter in each direction counted on an
area measuring at least 10 centimeters by 10 centimeters.” Ch. 61, Note 4. Laboratory
testing conducted in the course of this litigation demonstrates that the jacket does not
meet Note 4’s requirement. Pl.’s Suppl. Br, Ex. 1; Def.’s Suppl. Br., Ex. 2. Thus, it is
not classifiable as a shirt.
Parties dispute the proper alternative classification. Plaintiff contends the jacket
may be classifiable as a coat pursuant to HTSUS 6101.30.20, a suit-type jacket
pursuant to HTSUS 6103.33.20, or in the “basket” provision pursuant to HTSUS
6114.30.30, which covers articles not specifically described elsewhere in Chapter 61.
Pl.’s Suppl. Br. at 3-4. 29 Defendant disagrees with most of Plaintiff’s proposed
alternatives. See generally Def.’s Resp. to Pl.’s Suppl. Br., ECF No. 42. Defendant
instead contends that the jacket is classifiable as a “[s]weater[], pullover[], sweatshirt[],
waistcoat[] (vest[]) [or] similar article[]” pursuant to HTSUS 6110.30.30. Def.’s Suppl.
Br. at 3-5 (emphasis added). Defendant alternatively contends the jacket is classifiable
pursuant to the basket provision, HTSUS 6114.30.10. Id. at 5-6. Plaintiff disagrees with
Defendant’s assertion that the jacket is classifiable pursuant to HTSUS 6110.30.30, see
Pl.’s Reply to Government’s Resp. as to Alternative Classifications (“Pl.’s Suppl. Reply”)
at 2, ECF No. 43, and contends that the whole inquiry underscores its assertion that the
29Plaintiff affirms its position that the Santa Suit should be classified pursuant to
Chapter 95, and responds to the court’s order only “by assuming arguendo that it is
not.” Pl.’s Suppl. Br. at 1.
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Santa Suit “is a ‘festive’ article celebrating the Christmas holiday, and not an ‘apparel’
article normally worn as clothing,” id. at 3.
Heading 6101 covers “Men's or boys' overcoats, carcoats, capes, cloaks,
anoraks (including ski-jackets), windbreakers and similar articles, knitted or crocheted,
other than those of heading 6103.” The relevant Explanatory Note indicates that such
items are “characterised [sic] by the fact that they are generally worn over all other
clothing for protection against the weather.” EN 61.01. The subject jacket may be worn
over other clothing or just undergarments, Def.’s SOF ¶ 10, and although it affords
some protection, id. ¶ 27, it is not worn for protection as are the heading’s exemplars.
Heading 6103 covers “suit-type jackets [and] blazers.” 30 The relevant
Explanatory Note indicates that “[t]he ‘jackets or blazers’ have the same characteristics
as the suit coats and suit jackets described in Chapter Note 3(a) and in Part (A) [to EN
61.03].” EN 61.03. Part (A) to EN 61.03 describes jackets with “a full front opening
without a closure or with a closure other than a slide fastener (zipper).” The Santa Suit
jacket has a zipper closure, Def.’s SOF ¶ 6; thus, it is not covered by heading 6103.
30Heading 6103 also covers “[m]en’s or boy’s suits [and] ensembles.” Note 3(a)
provides that “[t]he term ‘suit’ means,” inter alia, “two or three pieces made up, in
respect of their outer surface, in identical fabric.” Ch. 61, Note 3(a). Likewise, the term
“ensemble” refers to “a set of garments . . . composed of several pieces made up in
identical fabric.” Ch. 61, Note 3(b). The subject jacket and pants are not made of
identical fabric: the jacket features faux fur fabric, whereas the pants do not. Def.’s SOF
¶¶ 8, 11-12. And, the Santa Suit as a whole is composed of several additional pieces
made up of different materials. Id. ¶ 1. Thus, neither the jacket and pants, nor the
Santa Suit as a whole, are classifiable as a “suit” or “ensemble.”
Court No. 13-00407 Page 35
Heading 6110 covers “[s]weaters, pullovers, sweatshirts, waistcoats (vests) and
similar articles, knitted or crocheted.” Defendant offers the following dictionary
definitions of the named articles: (1) sweater: “[c]lothing for the upper part of the body
worn either as an outer-garment or under a coat or jacket,” Charlotte Mankey
Calasibetta, Essential Terms of Fashion: A Collection of Definitions (“Essential Terms of
Fashion”) 210 (Fairchild Publications) (1986)); 31 (2) pullover: “[a]ny light knit shirt
without neck placket or fastening,” alternatively, “[s]weater with round, crew, or V-neck
pulled on over the head as contrasted with a cardigan or coat sweater, which opens
down the front, Charlotte Mankey Calasibetta & Phyllis Tortora, The Fairchild Dictionary
of Fashion (“Dictionary of Fashion”) 408, 441 (Fairchild Publications, Inc.) (2003); 32 (3)
sweatshirt: “[l]ong-sleeved, fleece-backed, cotton-knit pullover or zipped-front knit shirt
made with rib-knit crew neck . . ., rib-knit cuffs and waistband,” id. at 408; and (4) vest:
“[a]n item of wearing apparel extending to the waist or longer . . ., usually worn over a
blouse or shirt and sometimes under a suit jacket,” Essential Terms of Fashion at 225.
According to Defendant, the named articles
are united by the following essential characteristics: each article covers
the upper body; provides some warmth but does not protect against the
elements (wind, rain or extreme cold); and, may be worn over a lighter
garment (shirt or undershirt) but is not designed to be worn over all other
clothing.
31 Essential Terms of Fashion is Exhibit 3 to Defendant’s supplemental brief. See Def.’s
Suppl. Br., Ex. 3, ECF No. 41-3.
32 Dictionary of Fashion is Exhibit 1 to Defendant’s supplemental brief. See Def.’s
Suppl. Br., Ex. 1, ECF No. 41-1.
Court No. 13-00407 Page 36
Def.’s Suppl. Br. at 4. Defendant contends that because the jacket shares these
characteristics, it is a “similar article” pursuant to the rule of ejusdem generis. Id. at 3-4.
The rule of ejusdem generis 33 provides that when “general words follow an
enumeration of specific items, the general words are read as applying only to other
items akin to those specifically enumerated.” Schlumberger Tech. Corp. v. United
States, 845 F.3d 1158, 1165 n.8 (Fed. Cir. 2017) (citation omitted). In “classification
cases, ejusdem generis requires that the imported merchandise possess the essential
characteristics or purposes that unite the articles enumerated eo nomine [by name] in
order to be classified under the general terms.” Totes II, 69 F.3d at 498 (citation
omitted) (emphasis added); see also Victoria's Secret Direct, LLC v. United States, 769
F.3d 1102, 1107 (Fed. Cir. 2014) (“Applying the phrase ‘and similar articles’ to the
merchandise at issue, then, requires determining whether the merchandise, considering
all of its features, shares the unifying characteristics of the particular heading.”). 34
Identifying the essential (or unifying) characteristics is “a question of law” and “a matter
of common sense.” Victoria’s Secret, 769 F.3d at 1107. “[T]he unifying characteristics
may consist of both affirmative features and limitations.” Id.
As Defendant suggests, the named articles share the essential characteristics of
covering the upper body, providing some degree of warmth, and being suitable for wear
33 Ejusdem generis “means ‘of the same kind.’” Totes, Inc. v. United States (“Totes II”),
69 F.3d 495, 498 (Fed. Cir. 1995), aff’g Totes, Inc. v. United States (“Totes I”), 18 CIT
919, 865 F. Supp. 867 (1994).
34 The rule of ejusdem generis “does not apply . . . when the items do not fit into any
kind of definable category.” Victoria's Secret, 769 F.3d at 1107 n.1 (internal quotation
marks and citation omitted).
Court No. 13-00407 Page 37
over a light garment. The Santa Suit jacket shares these characteristics. See Physical
Sample (demonstrating the obvious point that the jacket is worn on the upper body);
Def.’s SOF ¶¶ 10, 27 (it is undisputed that the jacket may be worn over an
undergarment or clothing, and provides warmth to the wearer); Victoria’s Secret, 769
F3d at 1107 (instructing courts to first consider the unifying characteristics before
determining whether the subject merchandise shares those characteristics). 35
The relevant Explanatory Note supports the court’s finding with respect to the
exemplars’ essential characteristics and the jacket’s sharing of those characteristics. It
provides that “heading [6110] covers a category of knitted or crocheted articles, without
distinction between male or female wear, designed to cover the upper parts of the body
(jerseys, pullovers, cardigans, waistcoats and similar articles).” EN 61.10 (emphasis
added). Defendant defines “cardigan” as “a sweater or jacket that opens the full length
of the center front and usu. has a round or V-shaped collarless neck,” Def.’s Suppl. Br.
at 5 (quoting Webster's Third New Int'l Dictionary of the English Language Unabridged
(1993) (“Webster’s”) at 337), or as “[a]n adjective used to describe collarless garments
35The Federal Circuit notes that an article may not “share[] the heading's unifying
characteristics” when it has “a more specific primary purpose that is inconsistent with
the listed exemplars.” Victoria's Secret, 769 F.3d at 1107 (citation omitted). In other
words, the subject merchandise may share the essential characteristics but have some
other features that “defeat ‘similarity’— necessarily meaning that the unifying
characteristics of the heading's list include a limitation that excludes such other
features.” Id. at 1107-08. The Santa Suit jacket’s festive value is not inconsistent with
the named articles. Moreover, the enumerated items are not strictly limited to items
lacking festive or make-believe value. Indeed, Note 1(e) instructs that wearing apparel
may have festive or make-believe value, or else there would be no “fancy dress, of
textiles, of chapter 61 or 62” to exclude. See supra note 27 and accompanying text.
Court No. 13-00407 Page 38
with round or V-necklines that button down the front,” id. (quoting Dictionary of Fashion
at 61). Defendant contends that the jacket is like a cardigan “because, although it has a
collar which cardigans do not, it is a knitted article, designed to cover the upper body,
and it has a full length opening in the center front.” Id. (citing Physical Sample). Plaintiff
characterizes Defendant’s argument as “convoluted” and “ludicrous.” Pl.’s Suppl. Reply
at 2 (“In support of its position, [D]efendant actually makes the convoluted argument
that since a cardigan is a collarless sweater or jacket, a jacket can be classified as a
sweater. This argument is ludicrous . . . .”). But Plaintiff is incorrect.
The Explanatory Note provides examples of articles that share the essential
characteristics of the articles named in the heading; that is, articles that cover the upper
body, provide warmth, and may be worn over a light garment. Moreover, the
Explanatory Note’s exemplars do not represent the limits of what may be deemed
“similar” to the heading’s exemplars. See EN 61.10 (heading 6110 includes “jerseys,
pullovers, cardigans, waistcoats and similar articles”) (emphasis added); Rubie’s II, 337
F.3d at 1359 (courts should not employ any “limiting characteristics [in the Explanatory
Notes’ exemplars], to the extent there are any, to narrow the language of the
classification heading itself”). The jacket’s addition of a collar, which a cardigan may
have, see Def.’s Suppl. Br. at 5 (quoting Webster’s at 337), is not dispositive because
the absence of a collar is not a defining feature of the exemplars in the heading or
Explanatory Note. Moreover, common knowledge dictates that waistcoats (or vests)
may have a collar and, thus, are not, by definition, collarless. See Brookside Veneers,
847 F.2d at 789 (courts may rely upon their own understanding of HTSUS terms). The
Court No. 13-00407 Page 39
exemplars in the heading and the Explanatory Note are all distinct in various respects,
but they also share the essential characteristics of covering the upper body, providing
warmth, and being suitable for wear over a light garment, as does the Santa Suit jacket.
Accordingly, it is classifiable pursuant to heading 6110, specifically, HTSUS 6110.30.30,
which covers “[s]weaters, pullovers, sweatshirts, waistcoats (vests) and similar articles,
knitted or crocheted. . . . [o]f man-made fibers . . . [o]ther.”36
As to the pants, heading 6103 covers “men’s or boy’s . . . trousers . . . .”
“Trousers” may be defined as “an outer garment extending from the waist to the ankle . .
. , covering each leg separately, made close-fitting or loose-fitting in accord with the
fashion of different periods.” Webster’s at 2453. The pants are classifiable pursuant
thereto; specifically, HTSUS 6103.43.15 (covering “men’s or boy’s . . . trousers . . . [o]f
synthetic fibers . . . [o]ther”). 37
36 HTSUS 6110.30.30 provides a rate of duty of 32% ad valorem, which is the same as
HTSUS 6105.20.20 pursuant to which Customs classified the jacket. See Pl.’s SOF ¶ 4;
Def.’s Resp. to Pl.’s SOF ¶ 4.
37 Plaintiff contends, without citation to supporting authority, that the Santa Suit’s
“design, use, function[,] and commercial market” are “highly relevant” to its
classification. Pl.’s Resp. at 9-10. The Federal Circuit has held that use may be an
appropriate consideration when examining classification under competing eo
nomine provisions. GRK Can., Ltd. v. United States, 761 F.3d 1354, 1355 (Fed. Cir.
2014) (trial court erred in refusing to consider use to determine whether subject
merchandise should be classified as self-tapping screws or wood screws).
Accordingly, use may be considered when determining the commercial meaning of a
term in an eo nomine provision when the merchandise named in that provision
“inherently suggests a type of use,” or when determining whether a particular article “fits
within the classification’s scope.” Id. at 1358-59 (citations omitted). As to the latter
inquiry, the court may consider “the subject article's physical characteristics, as well as
what features the article has for typical users, how it was designed and for what
objectives, and how it is marketed.” Id. at 1358 (citations omitted). Here, the court is
tasked with determining whether the Santa Suit jacket and pants are described by Note
Court No. 13-00407 Page 40
IV. Classification of the Gloves
Heading 6116 covers knitted gloves, mittens and mitts. The gloves, which
consist of polyester knit fabric, Def.’s SOF ¶ 13, are prima facie classifiable pursuant to
heading 6116. Accordingly, they are excluded from classification under Chapter 95.
See Ch. 95, Note 1(u). The gloves are properly classified pursuant to HTSUS
6116.93.94 38 (covering “[g]loves . . . [o]f synthetic fibers . . . . [o]ther . . . [w]ith
fourchettes”). 39
V. Classification of the Sack
Heading 4202 covers “traveling bags, . . . knapsacks and backpacks, handbags,
shopping bags, . . . sports bags, . . . and similar containers, . . . of textile materials.”
The sack consists of the same plush fabric as the jacket and pants, and has a
drawstring cord. Def.’s SOF ¶ 14. It is described in the packaging as a “toy bag.”
Physical Sample. The Government contends that the sack is classifiable pursuant to
1(e) to Chapter 95, thereby foreclosing them from classification as festive articles
pursuant to that chapter. Cf. Sigma–Tau HealthScience, Inc., 838 F.3d at 1277, 1278
(declining to consider use when interpreting an eo nomine provision, and noting that a
chapter note determined under which of two competing provisions the subject
merchandise must be classified); Allstar, 211 F. Supp. 3d at 1332-37 (considering such
factors as design, use, function, and marketing to determine whether the Snuggie® is
classifiable as a garment or blanket). That determination is guided by the Federal
Circuit’s interpretation of the relevant tariff terms. See Avenues in Leather, 423 F.3d at
1331 (the court is bound by the Federal Circuit’s interpretation of tariff terms).
Accordingly, Plaintiff’s argument is unavailing.
38 HTSUS 6116.93.94 provides a rate of duty of 18.6% ad valorem, which is more than
the 10% duty rate Customs assessed pursuant to HTSUS 6115.95.60. See Pl.’s SOF
¶ 4; Def.’s Resp. to Pl.’s SOF ¶ 4.
39 A “fourchette” is “the strip or shaped piece used for the sides of the fingers of a
glove.” Webster’s at 898. The subject gloves have fourchettes. See supra note 6.
Court No. 13-00407 Page 41
heading 4202 because it shares the “essential purpose” or “essential characteristics,”
and “is of the same class of kind,” as the named articles. Def.’s XMSJ at 24, 25. 40
Defendant points the court to Totes I, 18 CIT at 924-25, 865 F. Supp. at 872, 41 and
Processed Plastic Co. v. United States, 29 CIT 1129, 395 F. Supp. 2d 1296 (2005). 42
Heading 4202 is an eo nomine provision, Totes II, 69 F.3d at 498, which
therefore “include[s] all forms of the named article,” Carl Zeiss, Inc. v. United
States, 195 F.3d 1375, 1379 (Fed. Cir. 1999). Additionally, the term “similar containers”
implicates the rule of ejusdem generis. Processed Plastics, 29 CIT at 1147 n.30, 395 F.
Supp. 2d at 1313 n.30. The Federal Circuit has defined the essential characteristics of
the heading 4202 exemplars as “organizing, storing, protecting, and carrying various
items.” Totes II, 69 F.3d at 498 (approving of the trial court’s determination of same).
Here, the sack’s plush material, drawstring cord, and description as a “toy bag”
indicates that it serves the purpose of storing, protecting, and carrying toys. Def.’s SOF
¶ 14; Physical Sample. 43 With some effort, the drawstring cord may be pulled tightly
40 Plaintiff did not respond to Defendant’s argument. See generally Pl.’s Resp.
41 In Totes I, the court applied the rule of ejusdem generis to classify trunk organizers
pursuant to Heading 4202 because they “possess[ed] the essential characteristics of or
serve[ed] a common purpose like that served by the exemplars in Heading 4202, and
hence by the operation of ejusdem generis fall within the purview of ‘similar containers.’”
18 CIT at 924-25, 865 F. Supp. at 872.
42 In Process Plastics, the court determined that children’s backpacks and beach bags
were properly classified pursuant to Heading 4202, and not as “toys” pursuant to
heading 9503, in part, because they “serve[d] the purposes of organizing,
storing, and protecting toys or other personal effects.” 29 CIT at 1145-48, 395 F. Supp.
2d at 1312-14.
43 Webster’s defines “bag,” inter alia, as “a container made of . . . cloth, . . . or other
flexible material and usu. closed on all sides except for an opening that may be closed
(as by folding, pasting, tying, or sewing), being of sizes ranging from small to very large
Court No. 13-00407 Page 42
closed to prevent toys from falling out, or it may be used to tie off the top of the sack.
Physical Sample. To the extent the sack lacks compartments and pockets, its
organizational capacity is unclear. However, the ubiquitous textile “shopping bag,” one
of the named articles, also generally lacks organizational features, so the court does not
find the lack of organizational capacity dispositive. See, e.g., Brookside Veneers, 847
F.2d at 789 (courts may rely on their own understanding of terms). Further, not all of
heading 4202’s exemplar’s necessarily share all of the above-stated essential
characteristics. See Totes I, 18 CIT at 925, 865 F. Supp. at 873 (noting that “some” of
the exemplars are designed to carry their contents). Because the sack serves the
purposes of storing, protecting, and carrying, it is prima facie classifiable pursuant to
heading 4202. It is, therefore, foreclosed from classification pursuant to Chapter 95.
Ch. 95, Note 1(d).
Proceeding to the appropriate subheading, “[t]ravel, sports and similar bags . . .
of textile materials: [o]ther,” are covered by subheading 4202.92.30. The phrase “travel,
sports and similar bags,” includes articles “designed for carrying clothing and other
personal effects during travel, including . . . shopping bags.” Ch. 42, Add’l U.S. Note 1.
The sack appears capable of carrying toys (or other personal effects) from A to B,
similar to a shopping bag. Accordingly, the sack is properly classified pursuant to
HTSUS 4202.92.30.
and being specially designed and treated for properly holding, storing, carrying,
shipping, or distributing any material or product--compare POUCH, SACK.” Webster’s
at 162. The sack fits that definition. See Physical Sample.
Court No. 13-00407 Page 43
CONCLUSION
For the reasons discussed above, the components of the Santa Suit at issue in
this case are properly classified pursuant to the following HTSUS provisions: (1) jacket:
HTSUS 6110.30.30; (2) pants: HTSUS 6103.43.15; (3) gloves: HTSUS 6116.93.94; and
(4) sack: HTSUS 4202.92.30. Accordingly, the court denies Plaintiff’s motion for
summary judgment and grants Defendant’s cross-motion for summary judgment. 44
Judgment will be entered accordingly.
/s/ Mark A. Barnett
Mark A. Barnett, Judge
Dated: October 31, 2017
New York, New York
44 Defendant requested summary judgment for the reasons “explained in [its]
accompanying memorandum of law.” Def.’s Cross-Mot. for Summ. J. at 1. Defendant’s
memorandum of law urged the court to affirm Customs’ classification of the subject
jacket pursuant to HTSUS 6105.20.20. Def.’s XMSJ at 1. As discussed above, in
supplemental briefing, Defendant acknowledged that HTSUS 6105.20.20 does not
cover the subject jacket, and asserted that HTSUS 6110.30.30 is the correct
classification. Def.’s Suppl. Br. at 4-5. The court agrees. Accordingly, the court
construes Defendant’s cross-motion as being amended by its supplemental brief, and
therefore grants the motion in full.