US Conceded CIT Committed Error in Customs Spat on The Comfy, Importer Tells CAFC
The U.S. either "concedes, does not dispute, or misses the point of, [importer Cozy Comfort's] key arguments" in the importer's appeal of the Court of International Trade's decision classifying The Comfy, an oversized pullover, as a pullover and not a blanket, Cozy argued in a Jan. 9 reply brief at the U.S. Court of Appeals for the Federal Circuit (Cozy Comfort v. United States, Fed. Cir. # 25-1889).
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Cozy argued that the government doesn't dispute the company's claim that the trade court "misinterpreted" the CAFC's 2019 ruling in Rubies Costume v. U.S., which said that articles in Harmonized Tariff Schedule heading 6110, which covers pullovers, provide "some warmth" but don't protect against "extreme cold."
The importer added that the U.S. "tacitly quibbles with" the company's discussion of the Supreme Court's decision Arnold, Constable & Co v. U.S., which concerns the classification of apparel, but it "does not engage with the central claim that the CIT misinterpreted the Arnold framework." Lastly, Cozy said the government failed to address its claim that CIT failed to address the trade court's prior decision in Allstar Mktg. Grp. v. U.S., which concerned the classification of the Snuggie.
In the Rubies Costume decision, CAFC said goods that qualify as pullovers under heading 6110 cover the upper body, are worn "over either undergarments or other clothing" and provide some warmth but don't guard against extreme cold. In its opening brief, Cozy said the trade court misinterpreted this ruling when it essentially converted the "extreme cold" requirement to a subjective case-by-case approach to a review of whether an article is "technically capable of being actually used in freezing temperatures" (see 2508270047).
The U.S. responded by arguing that Cozy incorrectly characterized CIT's decision (see 2512220047). The trade court said four "essential characteristics" apply to goods falling under heading 6110: the goods cover the upper body, provide "some warmth," don't protect against extreme cold and can be worn over undergarments or other clothing. The government argued that CIT properly took these characteristics from the Rubies decision.
In its response, Cozy argued that the government actually conceded that CIT misinterpreted the Rubies ruling, since the government's only trial witness, CBP National Import Specialist Renee Orsat, said as much. Under oath during the case's bench trial, Orsat admitted that in applying the Rubies standard, CBP's official position "that all articles with a sherpa lining designed to provide extra warmth like The Comfy are excluded from classification in heading 6110 because of this cold weather protection physical characteristic," the brief said. CBP's position doesn't rest on the "demonstrated capacity to withstand certain temperatures as the CIT held," Cozy said.
The U.S. "does not contest, rebut, or even discuss Customs Specialist Orsat’s admission," the importer argued. Instead, the government said that "whether an article protects from extreme cold is to be assessed by testing the item, perhaps in an environmental chamber with thermometers on each side," Cozy said. This method of analysis is contradicted by the "language of" Rubies itself; the HTS, which "differentiates articles based on whether the article is constructed with 'insulation for cold weather protection'; and heading 6110's Explanatory Notes, which "disqualify a vest from classification in heading 6110 based solely on the presence of padding fabric for protection from the elements," the brief said.
Cozy added that the trade court erred by not even affording Skidmore deference to CBP's stated position.
The importer additionally argued that the government's reply brief doesn't grapple with the company's core point that the trade court failed to apply the framework for assessing whether a good is "wearing apparel" established by the Supreme Court in Arnold. Under Arnold, to be wearing apparel an article must be "ordinarily worn as dress, i.e., recognized clothing," the brief said.
The U.S. doesn't contest the claim that "no person would consider wearing the bulky, thick, long The Comfy to work, the gym, a restaurant, or other public locations where a person might typically wear a sweater or pullover of heading 6110, or another type of upper body clothing of Chapter 61," the brief said.
Lastly, Cozy argued that the trade court erred, since The Comfy is a blanket of heading 6301. The government agrees that CIT's Allstar decision provides the "legal standard for classifying blankets," laying out two key characteristics: "(a) a piece of fabric and (b) used as a covering for warmth."
While the U.S. said a blanket must only cover the front of a person and not have a closure, "neither Allstar, nor any cited dictionary definition, include these additional limitations," Cozy argued. In fact, in Allstar, the U.S. itself said the "absence of a closure was not determinative because even a closure-less blanket (like the Snuggie) can be 'wrapped around the body of the wearer' and so 'remain in place as an outer covering on the body despite its lack of closures and its length.'"