HTS Should Be Interpreted Using British English, Not American English, Judge Restani Says

She also denied the government's motion to strike one of the plaintiff's statement of facts from the record.

The United States’ tariff schedule is based on the Harmonized Commodity Description and Coding System, published by the World Customs Organization, Restani noted in questions she sent to the parties prior to oral arguments. The WCO is located in Belgium and uses British English in the HS.

In her questions, Restani cited a 2013 CIT case, Victoria’s Secret Direct, LLC v. U.S., which held that its own parties had to use British definitions in its HTS classification dispute. She asked if they should do the same for the terms “diary” and “calendar,” some of the proposed definitions for importer Blue Sky The Color of Imagination’s planners.

Blue Sky, which is arguing that its products are calendars (see 2312260055), said that it does believe they should be using the British English definitions.

However, the government’s counsel, Monica Triana, said that she hasn't found any CIT or U.S. Court of Appeals for the Federal Circuit holdings that require U.S. courts to always use British English to interpret the HTS. She also pointed out that both CIT and CAFC regularly define statutory terms using American English dictionaries.

Restani said that she assumes they must use British English anyway. She noted that the preamble to the HTS “basically says we're trying to comply with an international system” that is written in English and French, she said. If Congress intended U.S. courts to use American definitions, it would go through the International Trade Commission -- something it has done in the past, as it exchanged the word “lorries” for “motor vehicles” in one instance, she said.

She also said that the issue wouldn’t always arise in court cases because “if it’s the same word, and there’s no difference in the two dialects, English versus American, then you don’t have any reason to say anything about it.”

Triana said that the British definition of a “diary” was favorable to the U.S. case anyway.

“I think to me, if I were you, I would be arguing ‘British English, British English, British English,’” Restani said. “You know, that’s the only way you can win.”

Restani also told Blue Sky attorney Christopher Duncan that the HS calendar heading's explanatory notes were “big problems” for Blue Sky. Those, she said, exclude “memorandum pads” and “engagement calendars." If Blue Sky's planners were "engagement planners," she couldn't find that they were classifiable as planners, she said.

Both Restani and Duncan noted that there were no British English definitions for “engagement calendars” and very few American English ones. Duncan found one on Dictionary.com, while Restani located another “from a museum.”

“It's kind of nice picture on one side, and it's got a week on the other,” she said. “It’s not a diary, it doesn’t have a lot of space to write things down …. But it’s got space to write down my dentist appointment.”

And Restani and the parties also discussed a similar 2002 CAFC case, The Mead Corporation v. U.S., which held that imported day planners were not bound diaries and should be classified under an “other” subheading. This case threatened the government's position that Blue Sky's planners belonged in the "notebook" section CBP had classified them under, as that was the same section that had been rejected in Mead, Restani said.

Duncan argued that the case didn't prevent classification of the planners as calendars. That case was partly distinguishable because Mead’s day planners didn't contain any calendar pages at all, so the court never considered an alternative classification under the calendar heading, he said. However, he argued that because the case defined a “diary” as “a record of past daily events, experiences and observations," CBP's chosen classification only covers books for logging past events, not for writing down reminders of upcoming ones.

Asked how he knew what had been in Mead’s planners, he said that he’d received help tracking down the products in Canada.

Restani said she wasn’t convinced diaries are only retrospective recordings. However, she said that Mead was a “big problem” for her, asking the government to explain to her how she wasn’t bound by its holding.

Triana said that she didn’t think Mead properly analyzed the definition of a diary, but that the issue hadn’t been discussed in the government’s briefs because they “had the same problem that” Restani was having and hadn’t been able to answer it.

Restani told the government to prepare a supplemental brief to consider the question.