The Classification of Merchandise by the U.S. Customs and Border Protection is Important

Apple filed suit against the U.S. in the U.S. Court of International Trade in which Apple challenged U.S. Customs and Border Protection’s classification of Apple’s iPad 2 Smart Cover under the Harmonized Tariff Schedule of the United States (“HTSUS”) Subheading 6307.90.98.  Apple, Inc. v. United States, 375 F. Supp. 3d 1288 (Ct. Int’l Trade 2019).  Apple and the United States filed cross-motions for summary judgment, with Apple contending that its subject merchandise is properly classified under Subheading 8473.30.51 duty free, and the United States contending that Apple’s subject merchandise is properly classified under Subheading 3926.90.99, at a duty rate of 5.3 percent ad valorem.  The U.S. Court of Appeals for the Federal Circuit affirmed the decision by the Court of International Trade that the subject merchandise was properly classified.

By way of background, this suit is in connection with a single entry of merchandise made by Apple at the port of San Francisco International Airport.  The entry consisted of two models of the Smart Cover, which “differ[ed] as to their outer layer:” one was made of leather and the other was “composed of plastic.”  Apple, 375 F. Supp. 3d at 1295.  Because U.S. Customs and Border Protection had liquefied the leather Smart Covers duty-free, the Court of International Trade held that Apple had not suffered an injury or harm that the CIT’s order could redress, thereby holding that Apple did not have standing to challenge the Customs’ classification of the leather Smart Covers as duty-free.  Accordingly, the issue in the present case remained the classification of the Smart Cover with plastic outer layer. 

The classification of merchandise involves a two-step inquiry.  ADC Telecomms., Inc. v. United States, 916 F.3d 1013, 1017 (Fed. Cir. 2019). First, we “determin[e] the proper meaning” of the terms within the relevant tariff pro-vision, “which is a question of law,” and, second, we determine whether the subject merchandise “falls within” those terms, “which is a question of fact.” Sigma-Tau Health Sci., Inc. v. United States, 838 F.3d 1272, 1276 (Fed. Cir. 2016).

The HTSUS governs the classification of merchandise imported into the United States. See Wilton Indus., Inc. v. United States, 741 F.3d 1263, 1266 (Fed. Cir. 2013). The HTSUS is “considered . . . [a] statutory provision[] of law for all purposes.” 19 U.S.C. § 3004(c)(1); see Chemtall, Inc. v. United States, 878 F.3d 1012, 1026 (Fed. Cir. 2017) (explaining that “the tenth-digit statistical suffixes . . . are not statutory,” as those suffixes are not incorporated in the HTSUS’s legal text). “The HTSUS scheme is organized by headings, each of which has one or more subheadings; the headings set forth general categories of merchandise, and the subheadings provide a more particularized segregation of the goods within each category.” Wilton Indus., 741 F.3d at 1266. “The first four digits of an HTSUS provision constitute the heading, whereas the remaining digits reflect subheadings.” Schlumberger, 845 F.3d at 1163 n.4. “[T]he headings and subheadings . . . are enumerated in chapters 1 through 99 of the HTSUS (each of which has its own section and chapter notes)[.]” R.T. Foods, Inc. v. United States, 757 F.3d 1349, 1353 (Fed. Cir. 2014). There are two types of HTSUS headings, “eo nomine [and] use provisions.” Schlumberger, 845 F.3d at 1164. “[A]n eo nomine provision . . . describes an article by a specific name.” CamelBak Prods., LLC v. United States, 649 F.3d 1361, 1364 (Fed. Cir. 2011) (citation omitted). A use provision describes an article by its principal or actual use. See Aromont USA, Inc. v. United States, 671 F.3d 1310, 1313 (Fed. Cir. 2012).

The HTSUS “contains the ‘General Notes,’ the ‘General Rules of Interpretation’ (‘GRI’), the ‘Additional [U.S.] Rules of Interpretation’ (‘ARI’), and various appendices for particular categories of goods.” R.T. Foods, 757 F.3d at 1353 (footnote omitted). The GRI and ARI govern the classification of goods within the HTSUS. See Otter Prods., 834 F.3d at 1375. The GRI “govern the proper classification of all merchandise[.]” Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999). The ARI are specific to use provisions. See Schlumberger, 845 F.3d at 1163 n.5 (ex-plaining that the ARI do not apply to eo nomine provisions).

The GRI “apply in numerical order, meaning that subsequent rules are inapplicable if a preceding rule provides proper classification.”  Id. at 1163.  GRI 1 provides, in relevant part, that “classification shall be determined according to the terms of the headings and any relative section or chapter notes.”  GRI 1.  “Under GRI 1, [the Court] first construe[d] the language of the heading, and any section or chapter notes in question, to determine whether the product at issue is classifiable under the heading.” Schlumberger, 845 F.3d at 1163 (internal quotation marks and citation omit-ted). “[T]he possible headings are to be evaluated without reference to their subheadings, which cannot be used to expand the scope of their respective headings.” R.T. Foods, 757 F.3d at 1353 (citations omitted). “Absent contrary legislative intent, HTSUS terms are to be construed according to their common and commercial meanings, which are presumed to be the same.” Well Luck Co. v. United States, 887 F.3d 1106, 1111 (Fed. Cir. 2018) (internal quotation marks and citation omitted). “To discern the common meaning of a tariff term, the Court may consult dictionaries, scientific authorities, and other reliable information sources.” Kahrs Int’l, Inc. v. United States, 713 F.3d 640, 644 (Fed. Cir. 2013) (citation omitted). The Court may also consider the relevant Explanatory Notes (“EN”). See Fuji Am. Corp. v. United States, 519 F.3d 1355, 1357 (Fed. Cir. 2008). “The [E]xplanatory [N]otes provide persuasive guidance and are generally indicative of the proper interpretation, though they do not constitute binding authority.” Chemtall, 878 F.3d at 1019 (internal quotation marks and citation omitted).

GRI 3 provides guidance when “goods are, prima facie, classifiable under two or more headings.” GRI 3.5.  In such cases “[t]he heading which provides the most specific description shall be preferred to headings providing a more general description.” GRI 3(a). “Under this rule of relative specificity, we look to the provision with requirements that are more difficult to satisfy and that describe the article with the greatest degree of accuracy and certainty.” Carl Zeiss, 195 F.3d at 1380 (internal quotation marks and citation omitted). “[C]omposite goods” that “cannot be classified by reference to [GRI] 3(a), shall be classified as if they consisted of the material or component which gives them their essential character[.]” GRI 3(b). The essential character inquiry “var[ies] as between different kinds of goods,” and “may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” Home Depot U.S.A., Inc. v. United States, 491 F.3d 1334, 1336–37 (Fed. Cir. 2007) (quoting EN (VIII) to GRI 3(b)). “[T]he essential character of the subject articles is a question of fact.” CamelBak, 649 F.3d at 1369. Once the appropriate heading is determined, GRI 6 is applied to determine the appropriate subheading. GRI 6 (providing that “the classification of goods” by subheadings “shall be determined according to the terms of those sub-headings and any related subheading notes and, mutatis mutandis, to the above [GRI], on the understanding that only subheadings at the same level are comparable”).

The ARI contain specific rules for interpreting use provisions in the HTSUS. See ARI 1(a)–(d). ARI 1(a) provides that, when a tariff provision is “controlled by use (other than actual use),” then classification “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[.]” ARI 1(b) governs classification by “actual use.” “[A]ctual use” considers only the “[a]ctual use of the imported goods”; “principal use” considers a variety of factors, including actual use, “to classify particular merchandise according to the ordinary use of such merchandise, even though particular imported goods may be put to some atypical use.” Aromont, 671 F.3d at 1313–14 (internal quotation marks and citation omitted).

The Court of Appeals for the Federal Circuit upheld the Court of International Trade’s ruling that, because HTSUS Heading 8473 expressly excludes accessories that are “covers, carrying cases and the like,” Apple’s Smart Cover, as a cover, could not be properly classified under HTSUS Heading 8473.  Apple, 375 F. Supp. 3d at 1301-02. 

It was also argued that the Explanatory Note to HTSUS Heading 8473 creates an exception to HTSUS Heading 8473 for covers that also act as stands for certain machines, and, therefore HTSUS Heading 8473 captures hybrid stand-covers like the Smart Cover.  However, the Court of Appeals for the Federal Circuit held that Explanatory Notes cannot create an exception to an HTSUS heading.  Explanatory Notes are “generally useful as guides to the scope of unclear HTSUS headings, but they are not legally binding.” Sigma-Tau, 838 F.3d at 1280 (internal quotation marks, alterations, and citation omitted); see H.R. REP. No. 100–576, at 549 (1988) (Conf. Rep.), as reprinted in 1988 U.S.C.C.A.N. 1547, 1582 (“Although generally indicative of proper interpretation of the various provisions of the [HTSUS], the Explanatory Notes . . . are not legally binding,” and, therefore “should not be treated as dispositive.”). They cannot be used to “narrow” or amend or create ambiguity in “the language of [a] [HTSUS] heading[.]” Rubie’s Costume Co. v. United States, 337 F.3d 1350, 1359 (Fed. Cir. 2003).

In conclusion, this case is significant because it illustrates the importance—commercially—of classifying merchandise and provides guidance for doing so. As a side note, I spent the last couple of summers reading the Bible, and I humbly question whether similar principles should be utilized when reading passages (as opposed to verses of the Bible).

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