International Trade Update February 26-27, 2015 Washington, DC VARIATIONS ON THE THEME OF PRINCIPAL USE IN CLASSIFICATION CASES

Transcription

1 International Trade Update February 26-27, 2015 Washington, DC VARIATIONS ON THE THEME OF PRINCIPAL USE IN CLASSIFICATION CASES Amy M. Rubin U.S. Department of Justice New York, NY

2 VARIATIONS ON THE THEME OF PRINCIPAL USE IN CLASSIFICATION CASES By Amy M. Rubin 1 Author s Preliminary Comments In preparing for my appearance at Georgetown on a panel entitled Principal Use And Classification, I was pleased to see the term principal use in quotation marks. This is because, after reviewing many decisions of the U.S. Court of International Trade and the U.S. Court of Appeals for the Federal Circuit discussing principal use or applying a principal use analysis in deciding the correct classification of imported products, it became clear that not all principal use cases involve traditional use tariff provisions. The concept of principal use has been employed in at least three varieties of classification cases: (1) cases involving provisions in the Harmonized Tariff Schedule of the United States (HTSUS) that either (i) expressly require a product to be used in or with or for a particular purpose or (ii) unequivocally imply that classification is to be based upon principal use - these are the traditional principal use cases; (2) cases involving HTSUS provisions containing terms with common meanings that incorporate a principal or primary use, i.e., principal use cases by dictionary definition; and (3) cases involving HTSUS provisions that have been deemed by the courts to implicate use, that is, judicially ordained principal use cases. Each variety will be discussed herein. 1 Ms. Rubin is an Assistant Director with the International Trade Field Office, U.S. Department of Justice. This paper reflects the views of the author and does not necessarily represent the position of the Government.

3 I Case Zero Carborundum When a classification issue relates, in some manner, to the use of an imported product, the classifier - be it U.S. Customs and Border Protection or a court will often reference the Carborundum factors. While many of us are familiar with the factors, we may not be familiar with the decision from which they were derived. United States v. The Carborundum Company, 63 CCPA 98, 536 F.2d 373 (1976) (Carborundum), involved the classification, under the Tariff Schedules of the United States (TSUS), 1 of an imported iron-silicon alloy powder. The powder was mixed with water to create a slurry used in a heavy-media separation process, i.e. a process in which two raw materials having different specific gravities were introduced into the slurry, with one sinking to the bottom and the other floating on the slurry surface. Carborundum, 536 F.2d at 374. The goal was to have two materials physically separated in a mixture that contained them both. Id. Carborundum claimed that the product was classifiable as ferrosilicon under Schedule 6, part 2, TSUS. Although the product satisfied the compositional definition of ferrosilicon contained in headnote 2(v), the claimed provision for ferrosilicon appeared indented under the term ferroalloys, and ferroalloys were defined in headnote 2(e) as, among other things, commonly used as a raw material in the manufacture of ferrous metals. Id. The Court of Customs and Patent Appeals (CCPA) determined that, for a product to be classifiable in the claimed provision, it had to satisfy not only headnote 2(v), but also the definition of ferroalloys, including the commonly used limitation. 1 The TSUS was the predecessor to the HTSUS. 3

4 The language at issue in Carborundum indicated how products classifiable as ferroalloys were commonly used, but not how they were principally used. Common uses would seemingly include uses other than principal, chief or primary uses. Nevertheless, the CCPA found that the claimed provision contained a use requirement and that such requirements were governed by General Interpretive Rule 10(e)(i), TSUS, which provided that: (e) in the absence of special language or context which otherwise requires - - (i) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of articles of that class or kind to which the imported articles belong, and the controlling use is the chief use, i.e., the use which exceeds all other uses (if any) combined.. [ 2 ] In determining that the importer had not satisfied its burden of proof, the court analyzed whether the iron-silicon powder at issue was of the same class or kind as that commonly used as a raw material in the manufacture of ferrous metals, by applying the now-famous Carborundum factors. 536 F.2d at 377. Factors which have been considered by courts to be pertinent in determining whether imported merchandise falls within a particular class or kind include the general physical characteristics of the merchandise, the 2 General Interpretive Rule 10(e)(i), TSUS, was similar to Additional U.S. Interpretive Rule 1(c), HTSUS, which provides: 1. In the absence of special language or context which otherwise requires (a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use; 4

5 expectation of the ultimate purchasers, the channels, class or kind of trade in which the merchandise moves, Maher-App & Co., supra at 37, 418 F.2d at 926 (Baldwin, J., concurring), the environment of the sale (i.e., accompanying accessories and the manner in which the merchandise is advertised and displayed, United States v. Baltimore & Ohio R. R., 47 CCPA 1, C.A.D. 719 (1959)), the use, if any, in the same manner as merchandise which defines the class, the economic practicality of so using the import, and the recognition in the trade of this use. Bob Stone Cordage Co. v. United States, 51 CCPA 60, C.A.D. 838 (1964). Susceptibility, capability, adequacy, or adaptability of the import to the common use of the class is not controlling. Baltimore & Ohio R. R., supra; Maher-App & Co., supra at 37, 418 F.2d at 926 (Baldwin, J., concurring). Id. These factors, in various combinations and subsets, have formed the basis for numerous decisions involving whether the principal use of the product in question is the same as that of the class or kind of merchandise encompassed by a particular tariff provision, in accordance with ARI 1(a). Sometimes, however, though the court declares a particular provision to be a use provision, it is not readily apparent from the published decision that the court has considered or applied these factors, particularly in cases where Carborundum is not expressly referenced. Given the mandate of ARI 1(a), though, we should presume that every time a court declares a tariff provision to be a use provision, it is considering the class or kind of merchandise encompassed by that provision and performing a Carborundum-like analysis. That said, the reason a use analysis is performed may vary from case to case, as discussed in the remainder of this paper. II Traditional Principal Use Cases Carborundum involved a situation where use was incorporated into the statutory language. The HTSUS also contains statutory language requiring consideration of a product s use. Some of this language is found in the tariff provisions and some is found in the legal notes that limit or explain the scope of the provision(s) to which they 5

6 apply. Often, these provisions or notes expressly include a variation on the word use or at least include the word for. For example, in Group Italglass U.S.A., Inc. v. United States, 17 CIT 226, 228, 1993 WL (1993), the court held that the provision in Heading 7010, HTSUS, addressing Carboys, bottles, flasks, jars, pots, vials, ampoules and other containers, of glass, of a kind used for the conveyance or packing of goods, is a principal use provision. According to the court, [t]he language in heading 7010 of a kind used for explicitly invokes use as a criterion for classification and under heading 7010 principal use is controlling. Id. Courts have been called upon to construe and apply other similarly apparent use provisions as well, such as Heading 3206: Inorganic products of a kind used as luminophores, whether or not chemically defined (USR Optonix, Inc. v. United States, 362 F.Supp.2d 1365, 29 CIT 229 (2005)), Heading 7010: Carboys, bottles, flasks, jars, pots, vials, ampoules and other containers, of glass, of a kind used for the conveyance or packing of goods, and Heading 7013: Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes... (Automatic Plastic Molding, Inc. v. United States, 26 CIT 1201 (2002)). 3 Sometimes the provision being construed is not a heading, but, rather, a subheading, as in subheading : lighting sets of a kind used for Christmas trees (Primal Lite v. United States, 182 F.3d 1362 (Fed. Cir. 1999)). Certain provisions may fall into this traditional category for reasons other than the express terms of a particular tariff provision. For example, parts provisions fall 3 Headings 7010 and 7013, HTSUS, were also at issue in Dependable Packaging Solutions v. United States, 757 F.3d 1374 (Fed. Cir. 2014), and Mark D. Myers v. United States, 969 F. Supp. 66, 21 CIT 654 (1997). Heading 7013, HTSUS, was also at issue in Pomeroy Collection, Ltd. v. United States, 559 F. Supp. 2d 1374, 32 CIT 526 (2008). 6

7 within this traditional category either because they expressly cover parts that are used solely or principally with a primary product, 4 because an HTSUS legal note so dictates, 5 or because of the application of ARI 1(c). 6 While it is not difficult to figure out that a tariff provision incorporating or subject to express limitations through words such as used for or principally used as is a use provision that requires the application of ARI 1(a), courts have found that the express inclusion of such magic words is not always necessary. For example, in E.M. Chemicals v. United States, 923 F. Supp. 202, 207, 20 CIT 382 (1996), the court stated: [w]hile 4 For example, Heading 8473, HTSUS, encompasses [p]arts and accessories (other than covers, carrying cases and the like) suitable for use solely or principally with machines of headings 8469 to E.G., Section XVI Note 2, HTSUS: 2 Subject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules: (a) Parts which are goods included in any of the headings of chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8485, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings; (b) Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517; (c) All other parts are to be classified in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate or, failing that, in heading 8485 or This Note was discussed in ENI Technology, Inc. v. United States, 641 F. Supp. 2d 1337, 33 CIT 1219 (2009). 6 ARI 1(c) directs that a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for parts or parts and accessories shall not prevail over a specific provision for such part or accessory. 7

8 some provisions expressly declare that classification of designated merchandise is dependent upon principal use, in most cases, principal use is implied from the language of the HTSUS. In other words, [a] designation by use may be established, although the word use or used does not appear in the language of the statute. Id. In that decision, the court concluded that the provision for coloring matter in Heading 4204, HTSUS, is a principal use provision, but found a trial necessary due to conflicting evidence relating to the Carborundum factors. Id. Other HTSUS provisions that have been deemed to be use provisions based on the statutory language include provisions that include the term preparations. Preparations provisions straddle the line between traditional use provisions and those where the common meaning of a tariff term implicates use, as described in the next section. While preparations provisions are considered use provisions, the rationale for this conclusion is based upon the common meaning of the term preparation. The tariff term preparation implies a particular application or use. For example, in Orlando Food Corp. v. United States, 140 F.3d 1437 (Fed. Cir. 1998) (Orlando Food), the Federal Circuit held that the provision for sauces and preparations therefor (Heading 2103) is a use provision: Sauces and preparations therefor, may be understood as a use provision, at least insofar as it covers preparations for sauces. Inherent in the term preparation is the notion that the object involved is destined for a specific use. The relevant definition from The Oxford English Dictionary defines preparation as a substance specially prepared, or made up for its appropriate use or application, e.g. as food or medicine, or in the arts or sciences. 12 The Oxford English Dictionary 374 (2d. ed. 1989). The inclusion of the term preparation in HTSUS 2103, Sauces and preparations therefor, clearly contemplates that some of the products falling within the provision s reach will be used to make sauces. Consequently, HTSUS 2103 is a use provision, insofar as it provides for preparations for sauces. 8

9 Id. at 1441; see, also Aromont USA, Inc. v. United States, 671 F.3d 1310 (Fed. Cir. 2012), construing Heading 2104 ( Soups and broths and preparations therefor ); and BASF Corp. v. United States, 497 F.3d 1309 (Fed. Cir. 2007), construing Heading 3811 ( Antiknock preparations, oxidation inhibitors, gum inhibitors, viscosity improvers, anti corrosive preparations and other prepared additives, for mineral oils (including gasoline) or for other liquids used for the same purposes as mineral oils ). By construing the common meaning of preparation and declaring preparation provisions to be use provisions, the Federal Circuit seems to have paved the way for the application of a use analysis to what might otherwise appear to be an eo nomine tariff term. III Tariff Terms That Imply Use In a second category of cases, the principal use of products encompassed by a particular provision is deemed relevant when a term within that provision has a common meaning that implicates use. This has occurred even though a use restriction might not, at first blush, be as apparent as with, e.g., the term preparation. Although such cases may be somewhat controversial as they appear to blur the line between mutually distinct categories use provisions and eo nomine (by name) provisions they are becoming more common. For example, in Avecia, Inc. v. United States, 469 F. Supp. 2d 1269, 1292, 30 CIT 1956, 1982 (2006) opinion adhered to as modified on reconsideration, 483 F. Supp. 2d 1251, 31 CIT 399 (2007) and amended, 481 F. Supp. 2d 1350, 31 CIT 414 (2007), the court employed the rationale of Orlando Food to find that Heading 3215 ( printing inks ) is a use provision: 9

10 As an initial matter, the parties dispute whether heading 3215 is eo nomine or a use provision.... the Court considers that the absence of for use in (or as ) in heading 3215 does not render the provision purely eo nomine. In Orlando Food, the appellate court reasoned that the inclusion of the term preparation in heading 2103, HTSUS ( sauces and preparations therefor ) clearly contemplate[d] that some of the products falling within the provision's reach will be used to make sauces. 140 F.3d at 1441 (italics added)... The various definitions of printing ink here present a similar construct... the Court concludes that heading 3215 is inherently a use provision and is to be construed as such. The Court thus finds as a matter of law that printing is a process of image reproduction, and that in order to be classifiable as a printing ink of heading 3215 an imported product must be used or intended for use in printing. One of the oft-cited cases in this use-implied eo nomine category is United States v. Quon Quon Co., 46 CCPA 70, 73 (1959) (Quon Quon), which considered the classification of woven articles that looked like shallow, flat baskets: While unhesitatingly granting the truth of the contention that baskets in the tariff act provides for baskets eo nomine, this does not help us in the least to decide whether the imported articles are baskets. We are not so trusting of our own notions of what things are as to be willing to ignore the purpose for which they were designed and made and the use to which they were actually put. Of all things most likely to help in the determination of the identity of a manufactured article, beyond the appearance factors of size, shape, construction and the like, use is of paramount importance. To hold otherwise would logically require the trial court to rule out evidence of what things actually are every time the collector thinks an article, as he sees it, is specifically named in the tariff act. See also, Kobata v. United States, 326 F. Supp (Cust. Ct. 1971) (finding wood frames with painted inserts to be properly classifiable as paintings rather than as screens because evidence established that the frames were used as wall decorations rather than as furniture). As described earlier, Carborundum considered whether a product s principal (or chief) use corresponds to that of the class or kind of merchandise encompassed by a particular tariff provision. In contrast, cases such as Quon Quon involve a specific eo 10

11 nomine tariff term such as frames or baskets, and consider whether the actual use of the product in question prevents it from falling within the common meaning of that term. While pure Quon Quon-type cases might not rightly belong in a paper dealing with principal use, some decisions have comingled the concepts derived from Quon Quon and Carborundum. 7 For example, in CamelBak Products, LLC v. United States, 649 F.3d 1361 (Fed. Cir. 2011), the Federal Circuit reversed the U.S. Court of International Trade s determination that a product consisting of a textile bag with padded adjustable shoulder straps and additional features was classifiable as a backpack. The additional features included: (a) a polyurethane reservoir or bladder surrounded by a closed-cell polyethylene foam compartment designed to carry and maintain the temperature of water or another beverage; (b) a hydration delivery system composed of flexible tubing attached to the reservoir, a bite valve and a shutoff valve; and (c) a cargo compartment designed to hold food, clothing, gear and supplies. Id. at While the Court of International Trade (CIT) found that the additional features did not render the product more than an improved form of backpack, the Federal Circuit disagreed, holding that the product possessed features substantially in excess of those within the common meaning of the term backpack and, therefore, had to be classified as a composite good under General Rule of Interpretation (GRI) 3(b). 8 Id. at In so doing, the Court 7 Moreover, consideration of actual use has been deemed an important factor in determining principal use. See, e.g., Aromont USA, Inc. v. United States, 671 F.3d 1310, 1313 (Fed. Cir. 2012) ( under principal use provisions, actual use of the particular imported goods is evidence of the principal use of the merchandise involved. Actual use of the goods involved is but one of a number of factors, and perhaps one of the more important of the Carborundum factors. ). 8 GRI 3(b) provides: 11

12 considered a number of factors similar to those considered in both Carborundum and Quon Quon, 9 including the design of the product, the primary use/function of the product, how the product is regarded in commerce, and how the product is described in marketing materials. Id. Perhaps the largest group of cases in which the guidance of Carborundum and Quon Quon are mingled involves the tariff term toys. In Minnetonka Brands, Inc. v. United States, 110 F. Supp. 2d 1020, 24 CIT 645 (2000), appeal dismissed, the CIT was called upon to determine the classification of hollow plastic bodies and heads in the shapes of well-known children s characters that were imported empty but sold at retail filled with bubble bath. The importer claimed that the products were classifiable in Heading 9503, HTSUS, as other toys. In sustaining the importer s claim, the court noted that the term toys for purposes of heading 9503 is not defined by statute (110 F. Supp. 2d at 1026), yet determined that inherent in the dictionary definitions of toy is the notion that an object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality. Id. After applying the Carborundum factors, the court found the products to be classifiable as toys. The court provided, however, for the possibility that toys might not be a principal use provision and might, instead, be an eo When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: * * * (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. 9 While Quon Quon is cited in CamelBak (649 F.3d at ), Carborundum is not. 12

13 nomine provision. Id. at 1028 n. 4 (citation omitted). Either way, according to the Minnetonka court, the products were classifiable as toys. The question of whether Heading 9503, HTSUS, is considered a principal use provision appears to have been laid to rest by the Federal Circuit in Processed Plastics Co. v. United States, 473 F.3d 1164 (2006), involving the classification of children s backpacks and children s beach bags. The Processed Plastics court fully embraced the Minnetonka view of the toys provision: We agree with the standard adopted in Minnetonka to determine whether merchandise should be classified as a toy.... the Minnetonka court determined that the principal use of a toy is amusement, diversion, or play (or as the trial court termed it, play value ) rather than practicality. 110 F. Supp. 2d at 1021, Id. at Later cases have continued to apply a Minnetonka/Processed Plastics analysis to products claimed to be toys to determine whether they belong to the class or kind of merchandise principally used for amusement. See, e.g., Infantino, LLC v. United States, 2014 WL (Ct. Int l Trade Dec. 24, 2014) (considering the physical characteristics, packaging, and manner of marketing of a padded shopping cart seat cover/activity center to find that the essential character of the product is imparted by its toy features); Streetsurfing LLC v. United States, 11 F. Supp. 3d 1287 (Ct. Int l Trade 2014) (classifying waveboards as sports equipment rather than as toys); Springs Creative Products Group v. United States, 2013 WL (Ct. Int l Trade 2013) (classifying fleece throw kits as toys); Simon Marketing, Inc. v. United States, 395 F. Supp. 2d 1280, 29 CIT 1111 (2005) (classifying as watches, rather than as toys, a McDonalds promotional item depicting characters from the movie A Bug s Life and containing an opto-electronic digital display for the date and time). 13

14 Even when the term toy is not at issue, courts have applied a Minnetonka-type analysis to find a tariff provision to be a use provision based upon the definition of one or more of the included terms. See, e.g., Cargill, Inc. v. United States, 318 F. Supp. 2d 1279, 1289, 28 CIT 401 (2004), citing Minnetonka as guidance in construing the term industrial in the tariff provision for Industrial monocarboxylic fatty acids ( In heading 3823, the term industrial is an adjective describing the manner in which monocarboxylic fatty acids are to be used. ); see, also, Essex Mfg., Inc. v. United States, 30 CIT 1 (2006), construing a tariff subheading encompassing plastic rainwear as a use provision, defining the term rainwear and applying the Carborundum factors. Id. at 4. Both parties contend that rainwear, as contained in subheading , is a use provision... As such, the term is properly read in the subheading as plastic apparel used as rainwear. See United States v. Hillier s Son Co., 14 Ct. Cust. App. 216, 222 (1929) ( Obviously, the test of use must be applied to a preparation in order to determine whether it is to be classified as a medicinal preparation, although the word use does not appear in paragraph 5. ); see also Stewart-Warner Corp. v. United States, 748 F.2d 663, 667 (Fed. Cir. 1984) (stating that [d]og food is a tariff item which, like smokers articles, household utensils, tableware, and other classifications too numerous to detail, is a use classification. It means food that is used to feed dogs. ). Moreover, in completing the first step of the two-step process, the court is required to reach a conclusion as to the principal use of the subject merchandise.... Use was also deemed relevant in construing the eo nomine provision for wood screws in GRK Canada, Ltd. v. United States, 761 F.3d 1354 (Fed. Cir. 2014) ( In sum, even under the HTSUS, use of subject articles may, under certain circumstances, be considered in tariff classification according to eo nomine provisions ). Id. at However, since that matter was remanded and is not final as of the date this paper is being submitted, we will just have to wait and see not only the final outcome of that case but also the effect, if any, that it will have on future cases. 14

15 IV Judicially Ordained Principal Use Provisions Finally, we come to a somewhat ad hoc category in which the courts apply Carborundum-type factors to determine classification when none of the competing provisions expressly or implicitly requires that the articles classifiable thereunder be principally used for a particular purpose or contains a tariff term defined by a principal or primary use. These cases fall into two categories inclusive and exclusive. The inclusive cases employ a principal use analysis to determine whether a particular product is encompassed by the provision in question. The exclusive cases, by contrast, employ a principal use analysis to determine whether a product is excluded from a provision because it has a principal purpose different from all of the items that are expressly identified in the provision. The most significant group of inclusive cases are the so-called festive articles cases. These cases all involve tariff classification under Heading 9505, HTSUS, which covers, in relevant part: Festive, carnival or other entertainment articles... Although not all festive articles cases cite Carborundum, they all incorporate a principal use requirement. The earliest decision interpreting Heading 9505, HTSUS, included a lengthy Carborundum analysis in determining that certain nutcrackers, wooden pull toys, toy smokers, fabric mache figures and porcelain figures were classifiable in the claimed heading 9505 and, specifically, as Christmas ornaments in subheading , rather than as dolls. Midwest of Canon Falls Inc. v. United States, 20 CIT 123 (1996), aff'd in part, rev'd in part sub nom. Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed. Cir. 1997). An eo nomine provision is one which describes merchandise by a specific name, usually one well known in the trade, which includes all forms of the 15

16 article as if each were provided for by name in the tariff provisions.... The tariff provision for Christmas ornaments, on the other hand, is best characterized as a use provision because the defining feature of an ornament is implied by its use. * * * Rather than adopting any rule for deciding between eo nomine and use classifications under the HTSUS, the Court will determine which classification is more specific based on all the facts and circumstances. First, the Court consults the Chapter Notes. It finds that these provide no guidance in this case. Next, the Court examines the Explanatory Notes.... The Court finds that nothing in the Explanatory Notes, other than that already discussed, suggests that either classification more specifically describes the items at issue. As such, the Court will apply the factors delineated in United States v. Carborundum Co., 63 CCPA 98, 536 F.2d 373, cert. denied, 429 U.S. 979 (1976), for classifying imports under the most specific heading:.. Id. at (internal citations omitted). The Federal Circuit affirmed the classification of these products, apparently finding no error in the trial court s application of a principal use analysis to Christmas ornaments. While subsequent festive articles decisions have not included full Carborundum analyses, they have considered Heading 9505 to incorporate a principal use component. See, e.g., Park B. Smith, Ltd. v. United States, 347 F.3d 922, 927 (Fed. Cir. 2003): In Midwest of Cannon Falls the court held that classification as a festive article under Chapter 95 requires that the article satisfy two criteria: (1) it must be closely associated with a festive occasion and (2) the article is used or displayed principally during that festive occasion. 122 F.3d at The court in Midwest held that all of the items at issue are used in celebration of and for entertainment on a joyous holiday, and they are all prima facie classifiable as festive articles under heading Id. at The Court of International Trade elaborated that closely associated with a festive occasion requires that the physical appearance of an article is so intrinsically linked to a festive occasion that its use during other time periods would be aberrant Ct. Intl. Trade LEXIS 71 at *7-8, 2001 WL , *2 (citing Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 789 (Fed. Cir. 1988)). 16

17 See, also, Michael Simon Design, Inc. v. United States, 501 F.3d 1303 (Fed. Cir. 2007); Russ Berrie & Co. v. United States, 381 F.3d 1334 (Fed. Cir. 2004); Wilton Indus., Inc. v. United States, 493 F.Supp.2d 1294, 31 CIT 863 (2007) appeal dismissed; Berwick Indus., Inc. v. United States, 30 CIT 337 (2006). Thus, while the courts have not re-applied the Carborundum factors each time they have been faced with a festive article claim, they have reviewed the products to determine whether their physical characteristics and manner and timing of use renders them of the same class or kind of good as others that satisfy the festive articles test for classification in Heading In contrast to, e.g., the festive articles cases, in which classification within a particular provision has been governed by a product s use, some judicial decisions have employed a principal use type of analysis to exclude products from an otherwise broad provision. In both SGI, Inc. v. United States, 122 F.3d 1468 (Fed. Cir. 1997) (SGI, Inc.) and A.D. Sutton & Sons v. United States, 32 CIT 804 (2008) (A.D. Sutton), soft-sided bags used primarily to store food and beverages were determined not to be similar containers to the list of containers named in the version of Heading 4202 then in effect, which included, among others, trunks, suitcases, handbags, traveling bags and bottle cases. The courts reasoned that the storage of food and beverages was a primary purpose that was not shared by any of the named exemplars. As under the comparable luggage provision under TSUS, none of the exemplars under subheading involves containment of any food or beverage. The additional exemplars in HTSUS that the Court of International Trade states makes the provision broader than the comparable luggage provision under TSUS also do not include containers that organize, store, protect, or carry food or beverages. An alternative classification under HTSUS presented by SGI, however, does encompass 17

18 exemplars that are ejusdem generis with the coolers because their purpose is to contain food and beverages. SGI, Inc., 122 F.3d at In A.D. Sutton, the court performed a Carborundum analysis, after noting: The court is not writing on a clean slate here. The Federal Circuit, in SGI, Inc. v. United States, 122 F.3d 1468 (Fed. Cir. 1997), held that imported merchandise possessing the primary purpose of storing food and beverages are properly classifiable under heading 3924 and are not classifiable under heading Bound by the holding in SGI, the court must classify the bags under heading 3924 if their primary use is to store food or beverages, even if the bags appear to be similar to the exemplars listed in heading Thus, applying this precedent, the court must now determine the principal use of the bags. A.D. Sutton, 32 CIT at While the variety of cases in what appears to be an eo nomine provision is being analyzed with an eye towards use appears to be expanding, there are limits. Compare, for example, the A.D. Sutton court, which incorporated use into an ejusdem generis analysis to exclude the products at issue from a tariff provision based upon principal use, with Lerner New York, Inc. v. United States, 908 F. Supp. 2d 1313 (2013), aff d, 769 F.3d 1102 (2014), and its companion case, Victoria s Secret Direct LLC v. United States, 908 F. Supp 2d 1332 (2013), aff d, 769 F.3d 1102 (Fed. Cir. 2014), where a request for a principal use analysis was rejected. The plaintiffs contended that the classification of their products combination camisoles and shelf bras should be determined via a Carborundum analysis because the term brassiere in the claimed provision, Heading 6212, 10 constitutes the class or kind of garments to which the product belongs. Lerner New York, 908 F. Supp. 2d at 1330 and Victoria s Secret Direct, 908 F. Supp. 2d at The court rejected this position because the garment was not a form of a brassiere 10 Heading 6212 encompasses: Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted. 18

19 and, instead, considered whether the garments were similar articles by reviewing the unifying characteristics of all of the goods named in the claimed heading to determine whether the imported garments shared those characteristics, ultimately finding that they did not. V Final Thoughts The foregoing pages provide but a brief overview of the different types of cases in which the principal or primary use of an imported good has factored into the determination of its tariff classification. While reasonable folks might disagree as to whether each of these cases actually involves tariff provisions that are controlled by use, as indicated in ARI 1(a), it does seem that the courts are taking more notice of how and when imported items are used in order to determine how they should be classified or, more appropriately, whether they are of the same class or kind of goods as those that the tariff provision was intended to cover. Given this apparent trend, it behooves importers who dispute a classification decision of U.S. Customs and Border Protection to gather specific information regarding the physical characteristics, sales and marketing, consumer expectations, trade views, actual uses and capabilities of the imported product to establish that it is principally used in the same manner as those goods described by the claimed provision, regardless of whether the claimed provision is a traditional use provision. 19