Rubies Costume Company v. United States , 922 F.3d 1337 ( 2019 )

United States Court of Appeals
for the Federal Circuit
______________________
RUBIES COSTUME COMPANY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-1305
______________________
Appeal from the United States Court of International
Trade in No. 1:13-cv-00407-MAB, Judge Mark A. Barnett.
______________________
Decided: April 29, 2019
______________________
GLENN H. RIPA, New York, NY, argued for plaintiff-ap-
pellant. Also represented by JOHN ANTHONY BESSICH,
SUZANNE MCCAFFERY, Follick & Bessich, P.C., Huntington
Station, NY.
PETER MANCUSO, International Trade Field Office,
Commercial Litigation Branch, Civil Division, United
States Department of Justice, New York, NY, argued for
defendant-appellee. Also represented by AMY RUBIN;
JEANNE DAVIDSON, JOSEPH H. HUNT, Washington, DC;
MICHAEL W. HEYDRICH, Office of the Assistant Chief Coun-
sel, United States Bureau of Customs and Border
2 RUBIES COSTUME COMPANY v. UNITED STATES
Protection, United States Department of Homeland Secu-
rity, New York, NY.
______________________
Before PROST, Chief Judge, REYNA and HUGHES, Circuit
Judges.
REYNA, Circuit Judge.
Rubies Costume Company appeals the grant of sum-
mary judgment by the Court of International Trade in fa-
vor of the Government as to the tariff classification of
certain imported merchandise. The imported merchandise
consists of a nine-piece Santa Claus costume packaged and
sold together as a set. The Santa Claus costume is custom-
arily worn in connection with the celebration of the Christ-
mas holiday. The parties argue as to the implications of
the “festive” nature of the costume. The merchandise, how-
ever, is excluded from classification as “festive articles” by
the notes to chapter 95 of the Harmonized Tariff Schedule
of the United States. The correct classification of the mer-
chandise is under HTSUS 6110.30.30, 6103.43.15,
6116.93.94, and 4209.92.30. On that basis, we affirm the
judgment of the Court of International Trade.
BACKGROUND
I. The Imported Merchandise
The Court of International Trade (“CIT”) set forth the
following undisputed facts. Rubies Costume Company
(“Rubies”) imports and sells traditional Christmas Santa
Claus costumes, including the “Premier Plush 9 Piece
Santa Suit” (“the Santa Suit”) at issue in this case. The
Santa Suit consists of a jacket, pants, gloves, a toy sack, a
beard, a wig, a hat, a belt, and shoe covers. Rubies pack-
ages and sells the nine pieces of the Santa Suit together in
a zippered plastic bag as shown below:
RUBIES COSTUME COMPANY v. UNITED STATES 3
J.A. 649.
The jacket and pants are made from 73% acrylic/27%
polyester knit pile fabric. The sewn-in care instruction la-
bels in the jacket and pants state that the garments require
dry cleaning.
The jacket comes in one standard size and has a dou-
ble-layer collar with white faux fur fabric and a front snap
closure. The jacket features a full-length zipper closure in
the front, concealed by an overlapping flap of white faux
fur that snaps at top and bottom. The jacket sleeves have
turned-edge hemming and white faux fur cuffs. The jacket
also includes double-layer belt loops and tightly stitched
interior seams. Woven satin fabric lines the entire jacket.
The pants have pockets with turned-edge hemming
and tightly stitched seams. An elasticized waist with a
1.75”-wide waist band secures the pants on the wearer.
4 RUBIES COSTUME COMPANY v. UNITED STATES
The ankle edge of the pants is sewn with a loose overlock
stitch that the wearer tucks into boots during use. Woven
satin fabric also lines the pants.
Of the other pieces of the Santa Suit, only the gloves
and toy sack are also at issue in this case. The gloves con-
sist of 100% polyester knit fabric and have fourchettes be-
tween the fingers. The toy sack measures thirty-six inches
in length and is constructed from 100% polyester knit pile
fabric. The toy sack closes with a drawstring cord.
II. The Procedural History
On June 20, 2012, Rubies requested a binding pre-im-
portation ruling from U.S. Customs and Border Protection
(“Customs”) on the tariff classification of the Santa Suit.
Exactly one year later, Customs issued Ruling Letter
HQ H237067 in which it classified the Santa Suit under
several tariff classifications of the Harmonized Tariff
Schedule of the United States (“HTSUS”). See Customs
Ruling HQ H237067 (June 20, 2013), 2013 WL 3783025, at
*1. On October 25, 2013, after Rubies entered the subject
merchandise, Customs applied its HQ H237067 ruling and
liquidated the entry of the Santa Suit according to the fol-
lowing classifications and duty rates for each piece:
Piece HTSUS Class Duty Rate
Jacket 6105.20.20 32.0% ad valorem
Pants 6103.43.15 28.2% ad valorem
Gloves 1 6115.95.60 10.0% ad valorem
1 In Ruling Letter HQ H237067, Customs classified
the gloves under 6116.93.94. Otherwise, Customs’ liquida-
tion of the entry was consistent with the Ruling Letter.
RUBIES COSTUME COMPANY v. UNITED STATES 5
Toy Sack 4202.92.30 17.6% ad valorem
Beard, Wig, Hat, 9505.90.60 Free of Duty
Belt, Shoe Covers
J.A. 6–7; J.A. 719–21.
Rubies protested the liquidation of the entry pursuant
to 19 U.S.C. § 1514(a). Rubies contended that all nine
pieces of the Santa Suit fall under HTSUS chapter 95 as
“[f]estive . . . articles,” requiring duty-free entry, and re-
quested an accelerated disposition of the protest. Customs
did not render a decision on the protest within thirty days,
so the protest was deemed denied under 19 U.S.C.
§ 1515(b) on December 14, 2013. On December 27, 2013,
Rubies filed suit in the CIT, challenging the denied protest.
After discovery, Rubies and the Government filed
cross-motions for summary judgment. The CIT denied Ru-
bies’ motion and granted summary judgment in favor of the
Government. The CIT found that “the Santa Suit is not a
festive article.” J.A. 2. The CIT found that the pieces of
the Santa Suit fell under the following HTSUS provisions:
6110.30.30 for the jacket; 6103.43.15 for the pants;
6116.93.94 for the gloves; and 4202.92.30 for the toy sack.
The parties did not dispute the classification of the beard,
wig, hat, belt, and shoe covers.
The CIT’s classification of the Santa Suit jacket dif-
fered from Customs’ classification. The CIT determined
that the jacket fell under heading 6110, and not heading
6105. Note 4 of chapter 61 requires that garments under
heading 6105 must have more than ten stitches per linear
centimeter. J.A. 33. The undisputed facts at summary
judgment showed that the jacket did not meet this require-
ment. The CIT, therefore, found that the proper classifica-
tion for the jacket was under heading 6110, specifically
6110.30.30, which does not have the same requirement and
6 RUBIES COSTUME COMPANY v. UNITED STATES
coincidentally provides the same duty as HTSUS
6105.20.20: 32.0% ad valorem.
The CIT also determined that the gloves were classified
under heading 6116, rather than heading 6115, as Customs
classified them at liquidation. The CIT’s classification was
consistent with Ruling Letter HQ H237067 and resulted in
an increased duty of 18.6% ad valorem.
Rubies timely appealed. We have jurisdiction under 28
U.S.C. § 1295(a)(5).
DISCUSSION
We review the CIT’s grant of summary judgment de
novo. Gerson Co. v. United States, 898 F.3d 1232, 1235
(Fed. Cir. 2018) (citing Otter Prods., LLC v. United States,
834 F.3d 1369, 1374–75 (Fed. Cir. 2016)). Despite our de
novo review, “we give great weight to the informed opinion
of the CIT.” Schlumberger Tech. Corp. v. United States,
845 F.3d 1158, 1162 (Fed. Cir. 2017).
The classification of goods under the HTSUS requires
a two-step process. First, the court “determines the proper
meaning of specific terms in the tariff provisions, which is
a question of law that we review without deference.” Ger-
son, 898 F.3d at 1235. Second, the court determines
whether the subject merchandise falls within the descrip-
tion of such terms as properly construed, which is a ques-
tion of fact that we review for clear error. La Crosse Tech.,
Ltd. v. United States, 723 F.3d 1353, 1358 (Fed. Cir. 2013).
If there is “no dispute as to the nature of the merchandise,
the two-step classification analysis collapses entirely into
a question of law.” Gerson, 898 F.3d at 1235 (internal quo-
tation marks omitted).
The HTSUS comprises a hierarchical structure that
separates goods by headings and subheadings. Otter
Prods., 834 F.3d at 1375. The General Rules of Interpreta-
tion (“GRIs”) of the HTSUS and the Additional United
States Rules of Interpretation govern the classification of
RUBIES COSTUME COMPANY v. UNITED STATES 7
goods. Id. We apply the GRIs in numerical order, starting
with GRI 1. Carl Zeiss, Inc. v. United States, 195 F.3d
1375, 1379 (Fed. Cir. 1999).
GRI 1 provides that “classification shall be determined
according to the terms of the headings and any relative Sec-
tion or Chapter notes.” “We apply GRI 1 as a substantive
rule of interpretation, such that when an imported article
is described in whole by a single classification heading or
subheading, then that single classification applies, and the
succeeding GRIs are inoperative.” La Crosse Tech., 723
F.3d at 1358 (quoting CamelBak Prods., LLC v. United
States, 649 F.3d 1361, 1364 (Fed. Cir. 2011)). We interpret
HTSUS terms according to their common and commercial
meaning unless there is contrary legislative intent and
may consult dictionaries, scientific authorities, and other
reliable sources to ascertain the common meaning. Otter
Prods., 834 F.3d at 1375.
The applicable HTSUS 2 headings in this case are as
follows:
4202
[T]oiletry bags, knapsacks and backpacks, hand-
bags, shopping bags, wallets, purses . . . tobacco
pouches, tool bags, sports bags . . . and similar con-
tainers, of leather or of composition leather, of
sheeting of plastics, of textile materials, of vulcan-
ized fiber or of paperboard, or wholly or mainly cov-
ered with such materials or with paper
....
6110
2 We cite to the 2013 version of the HTSUS in effect
on the date of importation. See LeMans Corp. v. United
States, 660 F.3d 1311, 1314 n.2 (Fed. Cir. 2011).
8 RUBIES COSTUME COMPANY v. UNITED STATES
Sweaters, pullovers, sweatshirts, waistcoats
(vests) and similar articles, knitted or crocheted:
....
6116
Gloves, mittens and mitts, knitted or crocheted:
....
9505
Festive, carnival or other entertainment arti-
cles, including magic tricks and practical
joke articles; parts and accessories thereof.
(emphasis added). Notes 1(d), 1(e), and 1(u) to chapter 95
state the following:
[t]his chapter does not cover
....
(d) Sports bags or other containers of heading 4202,
4303 or 4304;
(e) Sports clothing or fancy dress, of textiles, of
chapter 61 or 62;
....
(u) Racket strings, tents or other camping goods, or
gloves, mittens and mitts (classified according to
their constituent material).
(emphasis added).
I. Rubies I
This court previously addressed the tariff classification
of textile costumes in Rubie’s Costume Co. v. United States,
RUBIES COSTUME COMPANY v. UNITED STATES 9
337 F.3d 1350, 1352 (Fed. Cir. 2003) (“Rubies I”). 3 In Ru-
bies I, Rubies, the largest manufacturer of costumes in the
United States, filed a Domestic Interested Party Petition,
asserting that Customs should classify certain textile Hal-
loween costumes manufactured by others being imported
into the United States as articles of apparel under chapter
61 or 62. Id. Rubies contended that these costumes were
virtually identical to those manufactured by Rubies, and
that Customs had erroneously classified them as duty-free
“festive articles.” Id. The CIT agreed with Rubies and
granted summary judgment in its favor. Id. at 1353.
On appeal, this court in Rubies I observed that Note
1(e) excludes from chapter 95 “fancy dress, of textiles of
chapter 61 or 62,” but does not define “fancy dress.” Id. at
1356. According to the Rubies I court, “that the term ‘fancy
dress,’ . . . includes costumes is plain enough.” Id. at 1357.
The Rubies I court further determined that the “fancy
dress” exclusion under Note 1(e) to chapter 95 “encom-
passes textile costumes that are classifiable as ‘wearing ap-
parel’ under Chapter 61 or 62.” Id. at 1356–57. The court
identified factors as indicators of wearing apparel such as
the extent of styling features, including “zippers, inset pan-
els, darts or hoops, and whether the edges of the materials
[are] left raw or finished.” Id. at 1357. The court reversed
the CIT’s decision and concluded that Customs correctly
determined that “textile costumes of a flimsy nature and
construction, lacking in durability, and generally recog-
nized as not being normal articles of apparel, are
3 The parties’ briefing refers to this 2003 decision as
“Rubies II” and to the underlying CIT decision in that case
as “Rubies I.” We reference only our prior decision here, so
we refer to it as “Rubies I.”
10 RUBIES COSTUME COMPANY v. UNITED STATES
classifiable as ‘festive articles’” under chapter 95 of the
HTSUS. 4 Id. at 1360.
Following Rubies I, Customs issued an Informed Com-
pliance Publication, identifying factors that distinguish
flimsy, nondurable costumes classified in chapter 95 from
those that are well-made, comparable to normal wearing
apparel classified in chapters 61 and 62. U.S. Customs &
Border Prot., Classification of Textile Costumes Under the
HTSUS (2008), https://www.cbp.gov/sites/default/files/doc-
uments/icp077_3.pdf (“Textile Costume ICP”). The Textile
Costume ICP establishes four distinguishing factors to con-
sider in determining whether the costume is flimsy or well
made: styling, construction, finishing touches, and embel-
lishments. Id. at 11. Customs relied on the Textile Cos-
tume ICP in classifying the Santa Suit in Ruling Letter
HQ H237067. Although not binding on this court, the ICP
provides examples for each factor and guidance as to Cus-
toms’ analysis in this matter.
The examples provided in the ICP align with the fac-
tors identified by the court in Rubies I, which recited “zip-
pers, inset panels, darts or hoops, and whether the edges of
the materials [are] left raw or finished” as indicators of
wearing apparel. 337 F.3d at 1357. The ICP provides ex-
amples of well-made styling, including merchandise with
two layers of fabric and double-layer collars or belts. Tex-
tile Costume ICP 12. Examples of well-made construction
include tight stitching and finished edges. Id. at 13. Ex-
amples of well-made finishing touches include thick, dura-
ble elastics and zipper closures with a fold fabric that
covers the zipper. Id. at 14. Examples of well-made
4 The Rubies I court afforded Skidmore deference to
Customs’ interpretation of textile costumes classifiable as
“festive articles.” Id. at 1354 (citing Skidmore v. Swift &
Co., 323 U.S. 134 (1944)). In this appeal, neither party
challenges the Rubies I interpretation.
RUBIES COSTUME COMPANY v. UNITED STATES 11
embellishments include “embroidery, trimmings, and ap-
pliqués that have been sewn to the fabric,” as well as “dec-
orative overlock stitching visible at the neckline or wrists
which provides ornamentation and increased durability at
edges which receive significant wear.” Id. at 15.
II. The Santa Suit
Classification of the Santa Suit requires a two-step pro-
cess: (1) determining the meaning of terms in the HTSUS,
a legal question, Gerson, 898 F.3d at 1235; and (2) deter-
mining whether the subject merchandise falls within the
description of such terms as properly construed, a factual
question, La Crosse Tech., 723 F.3d at 1358. The two-step
classification inquiry ends at step one and remains solely a
legal question if the nature of the merchandise is not in
dispute. See Gerson, 898 F.3d at 1235.
Rubies argues that the CIT erred in granting summary
judgment in favor of the Government because a genuine is-
sue of fact exists as to whether the Santa Suit is “either [a]
festive article or fancy dress.” Appellant Br. 9. Rubies ar-
gues that the Santa Suit “does not constitute fancy dress
because it does not constitute a usual and normal article of
wearing apparel.” Id. at 7. Rubies further argues that
“there is a distinction between well-made wearing apparel
and a well-sewn costume that is intended to be worn by a
person for the purpose of accurately portraying a festive
character during a festive season.” Id. at 16. Rubies’ argu-
ments rely on its belief that because the Santa Suit is
plainly a festive costume worn for festive occasions, it can-
not be a normal article of wearing apparel.
There is no dispute that the Santa Suit is a costume
traditionally worn in conjunction with the celebration of
Christmas, a festive occasion, to portray Santa Claus, a fic-
tional jolly character that significantly contributes to the
festivity of the occasion. Instead, the dispute centers on
the meaning and scope of terms in the HTSUS, not on the
nature of the Santa Suit.
12 RUBIES COSTUME COMPANY v. UNITED STATES
Rubies’ arguments misapprehend that in Rubies I, we
recognized that “fancy dress” plainly includes costumes.
337 F.3d at 1356–57 (“[T]he relevant definition of ‘fancy
dress’ is ‘a costume (as for a masquerade or party) depart-
ing from conventional style and usu[ally] representing a
fictional or historical character, an animal, the fancy of the
wearer, or a particular occupation.’” (citing Fancy Dress,
Webster’s Third New International Dictionary (1986))).
That a person wears the Santa Suit or portions thereof
during festive Christmas holiday occasions does not pre-
clude it from classification as “fancy dress” of textile mate-
rial. Indeed, the “fancy dress, of textiles, of chapter 61 or
62” exclusion under Note 1(e) of chapter 95 presumes that
we may otherwise recognize the subject merchandise as a
festive article, unless it qualifies as fancy dress, i.e., a cos-
tume, of textile material. Thus, an article classified as
“fancy dress of textile material” can plainly constitute a
costume worn on festive occasions without conflicting with
the requirement set forth in Rubies I that a “festive article”
is “not generally recognized as normal wearing apparel.”
In view of the foregoing, we start our analysis by ap-
plying GRI 1, which requires us to consult the language in
the headings and the chapter notes to determine each arti-
cle’s classification. Gerson, 898 F.3d at 1235–36. If the rel-
evant heading terms and chapter notes describe the
merchandise such that a single classification subheading
applies to each article, we are not required to consult the
subsequent GRIs. The application of GRI 1, however, re-
quires that we determine whether the relevant pieces of
the subject Santa Suit fall within the Note 1(e) exclusion
pursuant to the factors set forth in Rubies I. 5 This process
requires us to determine if the undisputed facts establish
5 “1. This chapter does not cover . . . (e) Sports cloth-
ing or fancy dress, of textiles, of chapter 61 or 62.” HTSUS
Chapter 95, Note 1(e).
RUBIES COSTUME COMPANY v. UNITED STATES 13
whether the pieces are of durable and nonflimsy construc-
tion and otherwise generally recognized as normal wearing
apparel.
The CIT determined that the classification for the
Santa Suit jacket is HTSUS 6110.30.30, which covers
“[s]weaters, pullovers, sweatshirts, waistcoats (vests) and
similar articles, knitted or crocheted . . . [o]f man-made fi-
bers . . . [o]ther.” J.A. 39. Applying the styling, construc-
tion, and finishing touch factors noted above, the
undisputed facts establish that the Santa Suit jacket has
the features of a well-made textile costume, classifiable as
wearing apparel under HTSUS chapter 61. The jacket has
woven satin fabric lining and is constructed of an acrylic
and polyester knit pile fabric. The jacket also has a double-
layer collar with white faux fur fabric and a front snap clo-
sure, a full-length zipper concealed by white faux fur, fin-
ished edges with white faux fur cuffs, double-layer belt-
loops, and well-sewn seams. The jacket does not have any
embellishments, but that does not change the well-made
nature of the jacket based on other factors.
Additionally, the record shows that Rubies manufac-
tures the jacket so that it can be worn and cleaned multiple
times throughout the Christmas season, such that the
jacket may survive several Christmas seasons. The jacket
requires “Dry Clean Only” care. These, along with the fac-
tors described above, are all characteristics of normal wear-
ing apparel, and there is no dispute that the jacket is of
durable and nonflimsy construction.
Although the precise term for the type of jacket in-
cluded with the Santa Suit does not appear in the list of
items in heading 6110, the jacket shares the characteristics
of the named articles in the heading. Like a sweater or
sweatshirt, the jacket covers the upper body and provides
some warmth to the wearer but does not protect against
wind, rain, or extreme cold. The wearer can also wear the
jacket over either undergarments or other clothing. Thus,
14 RUBIES COSTUME COMPANY v. UNITED STATES
we hold that heading 6110 covers the Santa Suit jacket un-
der the rule of ejusdem generis because the jacket shares
the essential characteristics of the articles named in the
heading. See Victoria’s Secret Direct, LLC v. United States,
769 F.3d 1102, 1107 (Fed. Cir. 2014). The CIT therefore
correctly found that the proper classification for the jacket
is under HTSUS heading 6110, which excludes it from clas-
sification as a “festive article.”
The CIT classified the Santa Suit pants under HTSUS
6103.43.15, covering “men’s or boy’s . . . trousers . . . [o]f
synthetic fibers . . . [o]ther.” J.A. 39. The undisputed facts
establish that the pants also have the features of a well-
made textile costume, classifiable as wearing apparel un-
der HTSUS chapter 61. Like the jacket, the pants have
woven satin fabric lining and are constructed of an acrylic
and polyester knit pile fabric. The pants also have finished,
turned-edge hemmed pockets and a thick, durable elastic
1.75”-waist band. Although the ankle edges have loose,
overlock stitching, the ankle edges are hidden when the
pants are tucked into boots. The pants do not have any
embellishments, but as with the jacket, that factor does not
change the classification of the pants as a well-made textile
costume.
Further, Rubies manufactured the pants in such a way
to survive multiple wears throughout the Christmas sea-
son and subsequent Christmas seasons, and the pants also
require dry cleaning. In addition to the factors identified
above, these are characteristics of normal wearing apparel,
and there is no dispute that the pants are of durable and
nonflimsy construction. Thus, the CIT correctly found that
the proper classification for the pants is under HTSUS
heading 6103, which excludes them from classification as
“festive articles.”
The CIT also concluded that the Santa Suit gloves are
classified under HTSUS 6116.93.94, covering “[g]loves . . .
[knitted] . . . [o]f synthetic fibers . . . [o]ther . . . [w]ith
RUBIES COSTUME COMPANY v. UNITED STATES 15
fourchettes.” J.A. 40. Note 1(u) to chapter 95 excludes
“gloves” from classification as “festive articles.” The undis-
puted facts establish that the Santa Suit gloves consist of
100% polyester knit fabric and have fourchettes and are
thus plainly described in the HTSUS heading and subhead-
ing. Therefore, the CIT correctly found that the proper
classification for the gloves is under HTSUS heading 6116,
which excludes them from classification as “festive arti-
cles.”
The CIT found that the Santa Suit toy sack is classified
under HTSUS 4202.92.30, covering “[t]ravel, sports and
similar bags . . . of textile materials: [o]ther.” J.A. 42. Alt-
hough chapters 61 and 62 do not cover the toy sack, Note
1(d) to chapter 95 also excludes “[s]ports bags or other con-
tainers of heading 4202, 4303 or 4304” from classification
as “festive articles.” HTSUS heading 4202 encompasses a
variety of bags, knapsacks, backpacks, and similar bags of
textile materials. The undisputed facts establish that the
toy sack is made from the same fabric as the jacket and
pants, measures thirty-six inches in length, and closes with
a drawstring cord. Although “toy sack” does not specifically
appear in the list of items in heading 4202, we have defined
the essential characteristics of items under this heading as
“organizing, storing, protecting, and carrying various
items.” Totes, Inc. v. United States, 69 F.3d 495, 498 (Fed.
Cir. 1995). The toy sack, with its drawstring closure and
size, has at least the essential characteristic of carrying
various items. Thus, the CIT correctly found the proper
classification for the toy sack is under heading 4202, which
excludes it from classification as a “festive article.”
CONCLUSION
Based on the foregoing, we hold that the items of mer-
chandise in question are articles of normal wearing ap-
parel, and that the tariff classifications for the Santa Suit
jacket, pants, and gloves are, respectively, HTSUS
6110.30.30, 6103.43.15, and 6116.93.94. The classification
16 RUBIES COSTUME COMPANY v. UNITED STATES
for the toy sack is HTSUS 4209.92.30. On that basis, the
judgment of the CIT is affirmed.
AFFIRMED
COSTS
No Costs.