Punctuation matters. I’ve always remembered a poster on the wall of a co-worker’s office—this was back in the 80s—that showed baby seals dancing at a disco under a four-word caption: STOP CLUBBING, BABY SEALS. The poster (which has become an internet meme forty years later) cleverly showed how something as seemingly minor as a comma can change the meaning of a phrase or sentence. If a comma can flip the meaning of a four-word sentence, is it hard to imagine the effect that punctuation, or lack of punctuation, might have on our interpretation of a law or regulation? This was the challenge that the Supreme Court faced in 1818 in United States v. Palmer, a case involving a maritime piracy law. The Court had to determine whether the placement of a comma in a statute meant that the death penalty could be imposed for murder and robbery committed on the high seas.[1] The Court remarked that “it really is the fact in this case, that these mens’ [sic] lives may depend upon a comma”.
A tariff dispute isn’t a matter of life or death, but an importer’s tariff liability can be decided by punctuation. When the provisions of the Tariff Act of 1872 were published, a printer’s typographical punctuation error caused a tariff revenue shortfall of about $3,000,000.[2] A “free list” provision that Congress had drafted with a hyphen as “Fruit-plants, tropical and semi-tropical, for the purpose of propagation or cultivation” was inadvertently published with a comma as “Fruits, plants, tropical and semi-tropical, for the purpose of propagation or cultivation.” Despite the erroneous published language, Customs forced importers to pay duty based on the intended statutory language, which listed tropical fruit as dutiable under a different paragraph.[3] Importers of tropical fruit protested these duty assessments, claiming that the published provision, albeit incorrect, ought to allow all tropical fruit to enter the U.S. duty-free until the provision could be officially corrected. The New York Times scolded Congress in February of 1874:[4]
The publishers of the laws [Little Brown & Company, as a contractor for the federal government] erred in adding the letter “s,” and printing “fruits” instead of “fruit.” It was also said that Congress put a hyphen after “fruit,” and not a comma, which proves the word to be an adjective. Here we have it! The intention of Congress depending on a punctuation mark, as if debate were had and votes taken on punctuation! Who can now say whether hyphen or comma, or either, was the will of Congress and the President? Mr. Stimson shouts for hyphen, and Mr. Stimpkins for comma. Good draughtsmen of title-deeds, or laws, do not need the aid of punctuation of any kind to make their meaning clear. Indeed, the first thing taught the beginner is to so construct his sentences that punctuation cannot alter or vary their meaning.
[Congress] should have taken care that unambiguous language was employed, which could not mislead or confuse importers or Customs officers, or be the occasion of differences between them. Such loose and slip-shod legislation by persons pretending to understand the English language is disgraceful.
Two days after this tongue lashing by The Times, Congress debated the root cause of the error[5] and fixed it several weeks later, on May 9, 1874, with corrective legislation called An Act in Relations to the Customs Duty on Imported Fruits:[6]
Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That the … error in the punctuation of the clause relating to fruit-plants in the 5th section of the act approved June 6, 1872, entitled “An act to reduce duties on imports, and to reduce internal taxes, and for other purposes,” of inserting a comma instead of a hyphen after the word “fruit,” is hereby corrected, and such clause shall read as follows: Fruit-plants tropical and semi-tropical for the purpose of propagation or cultivation: Provided, That the duties imposed by virtue of this amendment shall not be levied or collected upon fruits entered for consumption at any port of entry prior to July first, 1874.
Although the provision was corrected, Customs was required to honor the flawed language for any fruits imported before July of 1874, which meant that the affected entries were liquidated duty-free. The comma defeated the hyphen in this legal battle of punctuation marks.
This is but one of many cases that illustrates the potential consequences of ambiguous, unintended, misused, or missing punctuation.[7] In the remainder of this article we will focus on how one particular punctuation mark is used today in one particular statute: the semicolon in the HTSUS.
Understanding the semicolon in the HTSUS
When interpreting a tariff provision in the HTSUS,[8] whether it’s a heading or a subheading, the function of the semicolon is often misunderstood. Within a heading (or subheading), a semicolon typically, but not always, indicates total separation between the text preceding it and the text following it—nothing less than an impenetrable wall. This is demonstrably different from how we use semicolons in standard prose English, which is to join related but independently significant clauses of a compound sentence lacking a coordinating conjunction (such as and or but); to separate the clauses of a compound sentence that contain other internal punctuation, such as commas (like this sentence); to separate a serial listing of items that contain internal punctuation (again, like this sentence); or to separate the clauses of a compound sentence joined by a conjunctive adverb, such as however or thus. So while a semicolon in traditional prose joins closely related thoughts rather than isolating them, in an HTSUS provision it usually functions as a brick wall.
The significance of the semicolon in HTSUS provisions is perhaps most effectively illustrated by the language of heading 4202:
Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper.
Hidden among the thirty-one commas in this heading is a solitary semicolon, immediately before “traveling bags”. The language before this semicolon comprises a list of specific containers used “to organize, store, protect and carry”[9] different kinds of items. The language after the semicolon also comprises a list of various personal containers, but the construction of these containers is expressly limited to specific materials (i.e., leather, plastic, etc.). Take as one example an attaché case, which can be made of any material (wood, aluminum, leather, plastic, kryptonite, petrified spaghetti, or whatever) because it is listed before the semicolon and thus isn’t subject to the material limitations imposed upon the articles listed on the other side of the semicolon. Or let’s say that we are tasked with classifying a jewelry box, which is listed after the semicolon. To be captured prima facie by heading 4202 it must be made of or covered with leather, plastic, or one of the other specified materials. But we know that the jewelry box is wooden and therefore it is classified (prima facie, by principal use) in a different chapter—in Chapter 44, specifically under heading 4420 between the first two semicolons:
Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94.
We find that Note 1(e) to Chapter 44 (“Wood and articles of wood”) excludes articles of heading 4202 from Chapter 44. This exclusion would apply without limitation to any of the articles listed before the semicolon in heading 4202 because they can be made of wood (or any other material), but the exclusion isn’t relevant to an article after the semicolon because those articles cannot, by the terms of the provision, be made of wood. This demonstrates that the language before the semicolon cannot be applied to the language after the semicolon, and vice versa. In other words, because of the plain language of the provision (i.e., the “terms of the headings”, per GRI 1), the semicolon as used here is an absolute barrier, effectively creating two functionally discrete headings within heading 4202.
This absolute barrier concept in the HTSUS is a long-standing common law principle that has been discussed in several court opinions, including Wagner Spray Tech Corporation, Inc. v. United States, in which the U.S. Court of International Trade (CIT) said in 2007 that “heading 9603 [in regard to paint rollers] contains four distinct groupings of merchandise separated by semicolons, which in tariff provisions ‘create a wall around each grouping of items, preventing the qualifying language from one grouping from applying to another.’”[10] Commercial Aluminum Cookware Co. v. United States decided a 1996 classification dispute in which the CIT reviewed the correct interpretation of the semicolons used in eo nomine heading 7010.[11] The court said that “the semicolons dividing the classes of merchandise in Heading 7010, HTSUS, create a wall around each grouping of items preventing the qualifying language from one grouping from applying to another. … [Hence] the Court finds the tariff provision describes three classes of merchandise in Heading 7010, HTSUS, and the qualifying language of one class does not apply to the merchandise listed in the other classes in the heading.” In Otter Products, LLC v. United States, the CIT looked in 2015 at the effect of the semicolon in determining whether protective plastic cases for electronic devices were classifiable under heading 4202.[12] In Mead Corp. v. United States—one of only two HTSUS tariff classification cases to be heard ultimately by the Supreme Court—the CIT in 1998 addressed the effect of the semicolon in heading 4820 on the classification of “loose-leaf books containing calendars, room for daily notes, telephone numbers, addresses and notepads.”[13]
Many other court decisions, both tariff- and non-tariff-related, have addressed the interpretation of a semicolon’s use in a specific statute or regulation. For instance, in 1911 in United States v. Marsching, the Court of Customs Appeals looked at the effect of a semicolon when comparing the language in the 1890, 1894, 1897, and 1909 versions of the tariff provision for coloring pigments.[14] Another example is Norfolk Dredging Co., Inc. v. United States, a non-tariff case from 2004 in which the CAFC’s analysis of a statute found that “[t]hese three self-contained, semi-colon delimited subparagraphs are independent of each other.”[15] And in 2010 in Laminated Woven Sacks Committee v. United States, the CIT reviewed the proper interpretation of semicolons in antidumping and countervailing duty orders issued by the Commerce Department.[16] Here the CIT necessarily reached a different interpretation than if the court had reviewed an HTSUS provision:
These two clauses are separated by a semicolon. A common method of interpretation holds that an ending clause or phrase applies to the last subject matter to which it is pertinent. … Likewise, use of the semicolon in this manner serves to link the two closely related independent clauses, and is indicative of the petitioners’ intention that the second clause act as a modifier of the first.
These cases show that the legal interpretation of a semicolon hinges on the specific context in which it is used.
Although caselaw like Wagner Spray Tech and Commercial Aluminum Cookware advise that a semicolon may create an absolute barrier in an HTSUS provision, this does not mean that we ought to ignore any insight that may be gleaned by reading a provision’s full language. Knowing the scope of items described on one side of a semicolon helps define the scope of the other side (as heading 4202 clearly shows us). In fact, the same logic we use to distinguish between headings is applicable to distinguishing the scope of each clause in a heading divided by one or more semicolons. By this we mean that just as an article may answer, prima facie, to more than one heading, it’s possible that an article might be prima facie classifiable on both sides of a semicolon (as we see in the kayak|canoe discussion below). Looked at another way, a semicolon denotes where a heading could be split into separate headings without any change to the scope of the new headings. The analytical difference is that the choice between two (or among several) prima facie headings is governed by GRI 3, while the choice between or among the clauses in the same heading separated by semicolons is ostensibly governed by GRI 1. Another important point is that semicolons do not create a hierarchy of clauses within headings; no clause may take precedence over another clause due to its placement within the heading.
Heading 6703 is another example in which a semicolon is used as an absolute barrier:
Human hair, dressed, thinned, bleached or otherwise worked; wool or other animal hair or other textile materials, prepared for use in making wigs or the like
To qualify under this heading, human hair doesn’t necessarily have to be used in wig-making, while animal hair must be used in wig-making “or the like”. Again, the semicolon is used as an absolute barrier to separate two functionally unconnected clauses that are independently viable on their own merit. The scope of the language on one side of the semicolon is unaffected by the language on the other side.
We now look at heading 8414 to illustrate an exception—yes, of course there are exceptions!—to the absolute barrier rule commonly found in the HTSUS (but found less frequently in the HS nomenclature).[17] This is the language of heading 8414 in the HTSUS:
Air or vacuum pumps, air or other gas compressors and fans; ventilating or recycling hoods incorporating a fan, whether or not fitted with filters; gas-tight biological safety cabinets, whether or not fitted with filters; parts thereof.
After the last semicolon is a “parts thereof” clause. The language before this last semicolon is governed by the absolute barrier rule, which creates three stand-alone clauses. But the structural logic of this heading (and all similarly structured headings) tells us that the “parts thereof” clause applies to the entire heading. This necessarily is contrary to the absolute barrier rule because if we apply this rule then the “parts thereof” clause stands forever isolated from the rest of the heading, which doesn’t make any sense because the “thereof” would have no referent—in other words, parts of what? In this example, the “parts thereof” clause applies, by design, to the entire heading.[18]
Another example of an exception to the absolute barrier rule is found in subheading 3924.90:
Curtains and drapes, including panels and valances; napkins, table covers, mats, scarves, runners, doilies, centerpieces, antimacassars and furniture slipcovers; and like furnishings.
After the last semicolon we find “and like furnishings”. This clause cannot be evaluated in isolation. As with a “parts thereof” clause, its meaning and scope is dependent on the preceding clauses. (Contrast this with “and the like” under heading 6703, which we noted was limited to the “making wigs” clause.)
Applying the semicolon rule to a specific classification example: kayaks and canoes
[Danger! Danger! This is where it starts to get in-the-weeds geeky, so your eyes may glaze over if you aren’t a true classification nerd. You have been warned.]
In the spirit of thinking outside the box, here’s a classification exercise in which a semicolon plays a central role. We know that when an item is prima facie classifiable under two or more headings that we typically must break the tie using GRI 3. But what if an item is prima facie classifiable under two clauses, separated by a semicolon, in the same heading? Does the semicolon effectively create two stand-alone headings? Our exercise looks at how kayaks (the non-inflatable kind) might be classified in the HTS under heading 8903, which is separated into two clauses by a semicolon:
Yachts and other vessels for pleasure or sports; row boats and canoes.
As an initial observation we notice that the pre-semicolon prepositional phrase “… for pleasure or sports” makes this a principal use provision subject to Additional U.S. Rule of Interpretation 1(a), while the post-semicolon language is strictly eo nomine (“row boats and canoes”). We will keep this in mind as we analyze heading 8903.
Before even looking at the Explanatory Notes (ENs), relevant rulings, or court decisions, we may be inclined to say that a kayak is, prima facie per GRI 1, a vessel “for pleasure or sports” rather than a “canoe”. We note that the words “vessel”, “kayak”, and “canoe” are not defined in the HTSUS. But there is an applicable statutory definition of “vessel” in 19 U.S.C. § 1401(a): “The word ‘vessel’ includes every description of watercraft or other contrivance used, or capable of being used, as a means of transportation on water, but does not include aircraft.”[19] Thus, both kayaks and canoes are clearly vessels of Chapter 89—but this is where the clarity ends. The American Heritage Dictionary defines a kayak as “a very light, slender, usually covered boat that has pointed ends and is propelled by a double-bladed paddle”[20] while the Merriam-Webster Dictionary identifies a kayak as “a light narrow boat that has both ends tapered to a point, is propelled by a double-bladed paddle, and often has a closed top except for an opening in which the paddler sits with the legs extended straight out in front”.[21] These definitions seem to differentiate a kayak from a canoe, but a fair sampling of other reputable dictionaries reveals that some definitions equate canoes with kayaks to some degree, while most others do not. Hence, while a kayak is unambiguously a “vessel” of Chapter 89 by statutory definition, the subtle variances in the dictionary definitions of a kayak makes it difficult for classification purposes to adopt one definition over another.
A kayak clearly is not a “row boat”[22] nor, though less clearly, is it a “canoe”—so let’s see if we can reach some reasonable understanding about the characteristics that distinguish kayaks from canoes. (And by the way, this isn’t just an empty exercise; the duty rate is dependent on how we classify a kayak.) Although kayaks and canoes share similarities, they differ in several significant ways, not least of which are design, construction, and use. Other than general dictionaries, where can we turn for guidance? The International Canoe Federation, an organization with authoritative expertise on this matter, explains the differences between a kayak and a canoe:[23]
What’s the difference between a Canoe and Kayak? Well the difference is relatively simple; it’s related to one’s position in the boat and the type of paddle they use to propel the boat. In a kayak, the paddler is seated and uses a double-bladed paddle pulling the blade through the water on alternate sides to move forward. In a canoe, the paddler kneels and uses a single-bladed paddle to propel the boat forward.
An article in an on-line magazine called Much Better Adventures provides a similar explanation:[24]
Despite the fact that many use the two words interchangeably, there is a clear distinction between a kayak and canoe. The boats are different. The gear is different. Even the history is different. … The main difference between a kayak and a canoe—and so between kayaking and canoeing—is the vessel itself. Canoes have an open-top design, with the rower sitting or kneeling and using a single-bladed paddle to propel themselves forward. Kayaks tend to have a closed deck. The rower sits inside with their legs stretched out in front of them and uses a double-ended paddle to move forwards and backwards on the water.
And this differentiation is supported by the fact that these vessels have separate advocacy organizations in the U.S., namely the American Canoe Association and the American Kayaking Association. From a functional perspective, canoes, unlike kayaks, are generally better designed for transporting items (say, camping equipment and supplies). Unlike canoes, most kayaks can safely overturn—in fact, most kayaks are typically designed with the ability to overturn without compromising their use or their occupant’s safety, as so-designed kayaks do not fill with water when capsized. Canoes, though, become unusable and can, in fact, be dangerous to their occupants when they capsize. Kayaks generally remain fully functional when they capsize, as their occupants can readily return them to an upright position, while canoes typically cannot be easily righted once overturned. We should call for emergency help when a canoe capsizes, but we can sit back and enjoy the spectacle of a kayak-rolling class.
The differences are even more apparent if we analyze this under each of the Carborundum factors.[25] Canoes and kayaks are marketed and sold as distinct products. A review of major U.S. retailers (like Dick’s and REI) shows that canoes and kayaks are sold as separate and coequal categories of watercraft, not as canoes with a subcategory of kayaks.[26] To those people whose opinions matter the most—consumers who buy and use kayaks and canoes—the differences between the two watercraft are considerable. As the ICF noted, the paddling techniques are fundamentally different; a canoe paddle has a blade only at one end, and the canoeist, who sits higher above the water than the kayaker, holds the paddle near its end, while a kayak paddle is held in the middle because it’s double-bladed. And those who buy and use canoes call themselves canoeists while those who buy and use kayaks are kayakers; a canoeist who is mistaken for a kayaker would be quick to correct the misidentification, and vice versa. A website called watersportswhiz.com lists eight fundamental differences between kayaks and canoes that mesh well with the Carborundum factors: hull design and appearance, weight and load capacity, onboard storage, seating position and overall comfort, intended uses and paddling environments, paddle design and how you use it, stability and maneuverability, and cost.[27] By any functional, physical, and commercial measure, kayaks and canoes are separate and coequal vessels. But perhaps most important for the purposes of understanding the principal use clause of heading 8903—”for pleasure or sports”—is that virtually all activities involving a kayak are for pleasure or sports. No one can dispute that the overwhelming principal use of a kayak, as required by AUSRI 1(a), is “pleasure or sports”.[28] Canoes, though, cannot be analyzed by principal use because they are named eo nomine on the other side of the semicolon.
Further research takes us to U.S. Notes 20(p)(9) and 20(p)(10) of Subchapter III in Chapter 99, which expressly identify “kayaks and canoes” as discrete products:
(9) Inflatable boats, other than kayaks and canoes, with over 20 gauge polyvinyl chloride (PVC), each valued at $500 or less and weighing not over 52 kg (described in statistical reporting number 8903.10.0060).
(10) Inflatable kayaks and canoes, with over 20 gauge polyvinyl chloride (PVC), each valued at $500 or less and weighing not over 22 kg (described in statistical reporting number 8903.10.0060).
While these recently added notes in Chapter 99, created specifically to administer Section 301 duties, are not dispositive regarding the meaning and scope of heading 8903, their syntax strongly suggests (despite being specific to inflatables) that kayaks and canoes are commercially coequal and discrete items.
Moreover, we draw relevant guidance from U.S. Notes 20(yy)(66) and 20(yy)(84), also of Subchapter III in Chapter 99:
(66) Racks of steel for storing kayaks, paddle boards and fishing poles (described in statistical reporting number 8302.50.0000).
(84) Molds (other than blow molds or bladder operated molds) of rubber or plastics, not injection or compression type, for kayaks (described in statistical reporting number 8480.79.9090).
Were these notes intended to exclude racks for storing canoes and molds for making canoes? By their plain language, the answer can only be yes. An importer of canoe racks or canoe molds would reasonably conclude that these notes are applicable only to kayak racks and kayak molds. These notes provide further evidence that, at least in the HTSUS, canoes and kayaks must be considered legally distinct and separate classes of vessels.
Consulting the Explanatory Notes we find that EN 89.03 provides relevant guidance. Although this EN is not very extensive, one paragraph is informative:
This heading covers all vessels for pleasure or sports and all rowing boats and canoes. This heading includes yachts, marine jets and other sailboats and motorboats, dinghies, kayaks, sculls, skiffs, pedalos (a type of pedal-operated float), sports fishing vessels, inflatable craft and boats which can be folded or disassembled.
The first sentence repeats the distinction in heading 8903 between “vessels for pleasure or sports” and “canoes”. And each of the vessels listed in the second sentence—kayaks among them—is clearly a vessel principally used “for pleasure or sport”. Because heading 8903 explicitly names canoes and row boats, we can reasonably infer that the absence of these vessels from the second sentence of the EN is a clear signal that it was intended to address only those vessels captured by the clause before the semicolon in heading 8903. Hence this EN provides further support that canoes and kayaks represent different classes of vessels and therefore must be classified on opposite sides of the semicolon.
So we’ve determined beyond any reasonable doubt that a kayak is not a canoe, right? Not so fast—in a binding ruling, HQ 088499 (April 19, 1991), CBP’s John Durant, whose rulings were usually spot-on, essentially told us that the definition of canoes includes kayaks (citing Encyclopedia Americana), and therefore classification is determined at the heading level by application of GRI 1, and then GRIs 1 and 6 take us to subheading 8903.99.05 (the subheading for canoes in the 1991 HTSUS). But he inexplicably ignored the pre-semicolon heading language in his analysis, focusing solely on “row boats and canoes”; he framed the issue narrowly, as whether a kayak is classified as a canoe or as a row boat, without regard to whether it might also be classifiable as a vessel for “pleasure or sport”. And his analysis didn’t include any reference to EN 89.03. A ruling is, of course, binding only on the party to whom it was issued, but a ruling (particularly an HQ ruling) may exert its influence on subsequent rulings involving substantially similar products. Thus we see that subsequent rulings for kayaks, such as HQ 950019 (November 5, 1991) and HQ H251131 (August 28, 2014), merely mimicked the flawed finding in HQ 088499 without conducting additional analyses.
So now let’s circle back to the question that kicked off this discussion: Can something be prima facie classifiable under two discrete clauses, separated by a semicolon, in the same heading? If it can, what methodology must be followed? Let’s review our options. Option one: we decide that a kayak is prima facie classifiable only as a vessel for pleasure or sport, not as a canoe. This then would become a simple GRI 1 analysis, based also on principal use per AUSRI 1, with GRI 6 taking us to subheadings 8903.93.90 or 8903.99.91 (depending on length). Option two: it would be a simple GRI 1 analysis were we to defer to Mr. Durant’s guidance, which is that a kayak “fall[s] within the term ‘canoes’”. GRI 6 would lead us to the subheadings for canoes, 8903.93.05 or 8903.99.06 (again depending on length). But then we have option three, which is that the kayak is prima facie classifiable on either side of the semicolon—by principal use on the front side and eo nomine on the back side. Do we have a legal basis for conducting such an analysis? GRI 1 doesn’t have a tie-breaking mechanism, so is there any way we can invoke GRI 3, even though the plain language of GRI 3 limits its applicability only to a choice between two (or more) prima facie headings? We can argue quite persuasively that the semicolon effectively creates two mutually exclusive stand-alone headings within 8903, one walled off from the other, but on what basis do we form a defendable argument for applying GRI 3, when there is no legal mechanism in this scenario for proceeding from GRI 1 to GRI 3 when only one prima facie heading is applicable? Does GRI 2(b) help? No. Can we perhaps invoke the mutatis mutandis magic of GRI 6? No. GRI 4? Absolutely not. Option three, it seems, inflicts serious discomfort on our understanding of normal GRI-based methodology, which prevents us from moving beyond GRI 1 when only one prima facie heading is under consideration. If the kayak is ultimately classified pre-semicolon solely by its principal use as a “pleasure or sports” vessel, then we follow the path of the first option. If we are confident that a kayak is classified solely because it is de facto a canoe, then we follow the Durant ruling in option two. As wondrous as it would be to discover a viable methodology for option three, the GRIs simply are not constructed to handle such a scenario.[29]
To this point in our analysis we’ve focused exclusively on heading 8903, but let’s pour a little more muddy water into our puddle by asking, as required under GRI 1, whether there might be other headings under which a kayak may be prima facie classifiable. We appear to have only one other heading to consider: 9506, which covers “articles and equipment for general physical exercise …”. But as it turns out neither canoes nor kayaks can be classified prima facie under heading 9506 because Note 1(q) of Chapter 95 excludes from that chapter “Sports craft such as canoes and skiffs …”. Note 1(q) is significant for more than its exclusionary powers. Whether we think a kayak is a canoe or a distinct vessel “for pleasure or sports” on its own merit, this note adds confusion to our analysis by legally equating canoes with sports craft, which flies in the face of the structure of heading 8903 where canoes are named eo nomine after the semicolon but sports vessels are separately named by principal use before the semicolon. Granted, Note 1(q) is a non-invasive exclusory note (meaning its legal reach is limited to Chapter 95) that is not qualified by any language that would render it determinative in our scope analysis of heading 8903 (such as an invasive phrase like “throughout the tariff …”), but it nonetheless presents an interesting drafting inconsistency.[30]
After all this, have we settled on the “correct” classification for a kayak? Reasonable minds can disagree, but I think that a kayak is not a canoe, and thus ought to be classified as a vessel “for pleasure or sport” under option one. But reaching a final answer is not really the point of this exercise. The point is to expose the complexities that often arise during an HTSUS classification analysis, such as when a language convention as mundane as the semicolon becomes critical to the proper interpretation of a heading. Classification is the keystone to import compliance because it drives not only the assessment of duties but it also triggers a broad range of admissibility requirements, so it is crucial that a classifier knows how to determine the best legally defendable classification based on the GRIs, the ENs, and relevant precedents—and sometimes the guidance of a potentially problematic punctuation mark like the semicolon.
[1] United States v. Palmer, 16 U.S. 610 (1818).
[2] Arthur Settel, A Pictorial History of the United States Customs Service (New York: Crown Pubs, 1975), 52.
[3] “After a tariff has been enacted, come the interpretations and decisions of treasury officials and courts to unmake and re-make it, and duties are raised or lowered by a printer’s placing of a comma or by arbitrary constructions, frequently open to grave suspicion, and which no one can foresee[.]” Henry George, Protection or Free Trade: An examination of the tariff question, with especial regard to the interests of labor (New York: Doubleday and McClure Company, 1898), 93.
[4] Hyphen or Comma?, The New York Times (February 18, 1874). Here we have a major newspaper opining that good legal writing does not need punctuation to achieve clarity.
[5] An Expensive Comma, The New York Times (February 21, 1874).
[6] Synopsis No. 1833. Synopsis of Sundry Decisions of the Treasury Department on the Construction of the Tariff, Navigation, and other Acts for the Year Ending December 31, 1874. (Washington, DC: Government Printing Office, 1875). See also: Lewis Heyl, United States Duties on Imports, 1886, Revised, Corrected, and Supplemented, 32nd Ed. (Washington, DC: W.H. Morrison, 1886).
[7] Many non-tariff court cases have been decided based on a statute’s punctuation. One such appellate ruling affirmed the deportation of a British citizen (McLeod v. Nagle, 48 F.2d 189 (9th Cir. 1931)). Another is a Supreme Court decision in an insurance dispute (Insurance Company v. Slaughter, 79 U.S. 404 (1870)). A more recent Supreme Court decision, United States v. Ron Pair Enterprises, Inc., 489 U.S. 235 (1989), included a dissent by Justice Sandra Day O’Connor in which she discussed the interpretive impact of a comma, noting that it isn’t necessarily a controlling factor.
[8] Harmonized Tariff Schedule of the United States. The HTSUS, which is administered by the U.S. International Trade Commission (USITC) and enforced primarily by U.S. Customs and Border Protection (CBP), is statutory law enacted by Congress per Section 1204 of the Omnibus Trade and Competitiveness Act of 1988, Pub. L. 100–418, Title I, Subtitle B, §§ 1201–1217, 102 Stat. 1147–1163 (August 23, 1988); 19 U.S.C. §§ 3001–3012. Enactment was codified in 19 U.S.C. § 3004. The HTSUS is based on the World Customs Organization’s Harmonized System (HS).
[9] The CIT analyzed the essential character of items classified under heading 4202 in Totes, Inc. v. United States, 865 F. Supp. 867 (Ct. Int’l Trade 1994).
[10] Wagner Spray Tech Corporation, Inc. v. United States, 493 F. Supp. 2d 1265 (Ct. Int’l Trade 2007).
[11] Commercial Aluminum Cookware Co. v. United States, 938 F. Supp. 875 (Ct. Int’l Trade 1996).
[12] Otter Products, LLC v. United States, 70 F. Supp. 3d 1281 (Ct. Int’l Trade 2015).
[13] Mead Corp. v. United States, 17 F. Supp. 2d 1004 (Ct. Int’l Trade 1998). Neither the Court of Appeals for the Federal Circuit (CAFC) nor the Supreme Court saw the need to address the semicolon in heading 4820. Indeed, the CAFC evidently has never addressed semicolons in any of its HTSUS-related opinions. And looking north of the border, the Canadian International Trade Tribunal (CITT), which in trade disputes is Canada’s equivalent to the U.S. CIT, found in 1997 in Boss Lubricants v. The Deputy Minister of National Revenue (Appeal Nos. AP-95-276 and AP-95-307 (September 3, 1997)) that “the description preceding the semicolon in tariff item No. 2710.00.20, “Other lubricating oils put up in packings for retail sale,” has no bearing and does not qualify or limit in any way the relevant portion that follows the semicolon and pursuant to which the goods in issue are classified.”
[14] United States v. Marsching, 1 Ct. Cust. 216 (Ct. Cust. App. 1911).
[15] Norfolk Dredging Co., Inc. v. United States, 375 F.3d 1106 (Fed. Cir. 2004).
[16] Laminated Woven Sacks Committee v. United States, 716 F. Supp. 2d 1316 (Ct. Int’l Trade 2010).
[17] Among the notable differences between the HTSUS and the HS is the way “parts” or “parts and accessories” are determined to be included or excluded from a heading. In the HTSUS, they are generally presumed to be excluded from a heading unless the heading’s language explicitly mentions “parts” or “parts and accessories”. This practice of excluding parts from a heading silent about parts was not a new standard in 1989 when the HTSUS was implemented. Indeed, the practice has a long common law history, with roots in the nineteenth century when it was first established by the Supreme Court, and there have been numerous decisions over the decades, including HTSUS cases, in which the lower courts have faithfully reaffirmed this practice. Hence the U.S. has modified the language of certain headings to expressly include clauses for “parts” or “parts and accessories” (while continuing to conform to the nomenclature modification prohibitions in Article 3 of the HS Convention). For all the potential subjectivity that may complicate a given classification analysis, at least we are assured that it is an objectively indisputable practice to exclude parts or accessories from the scope of an HTSUS heading when the heading’s plain language does not expressly mention parts or accessories. This is one of the first concepts drilled into me when I was learning how to classify in the old TSUS over forty years ago.
[18] Another example similar to the “parts thereof” exception is the “salts thereof” clause found in many subheadings of Chapter 29.
[19] 1 U.S.C. § 1–8 provide definitions and limitations that are broadly applicable throughout the U.S. Code (which includes the HTSUS), unless the context dictates otherwise. The definition of “vessel” is in 1 U.S.C. § 3, but this definition, codified in 1947, is superseded in customs-related contexts by a nearly identical (and older by seventeen years) definition in § 401 of the Tariff Act of 1930 (codified in 19 U.S.C. § 1401(a)). The only differences in the newer definition are the addition of the adjective “artificial” before “contrivance” and the deletion of a prepositional phrase at the end, “but does not include aircraft.” As another example of the interplay between 1 U.S.C. § 1–8 and the HTSUS, we find that the limitation on “products of American fisheries” in 1 U.S.C. § 6 is paraphrased in U.S. Note 2, Chapter 98, Subchapter XV.
[20] See: https://ahdictionary.com/word/search.html?q=kayak.
[21] See: https://www.merriam-webster.com/dictionary/kayak.
[22] A row boat is “a small boat propelled by oars” according to virtually all dictionaries, including The American Heritage Dictionary of the English Language, 5th ed. Joseph Pickett, Executive Editor, and Steve Kleinedler, Supervising Editor. (Houghton Mifflin Harcourt: Boston and New York, 2011).
[23] See https://www.canoeicf.com/canoe-kayak-difference. The ICF was founded in 1946.
[24] Stuart Kenny, Canoe vs. Kayak: What’s the Difference (Much Bette Adventures, March 28, 2023). Accessed at https://www.muchbetteradventures.com/magazine/canoe-vs-kayak-whats-the-difference/. See also: https://www.goodwave.co/blogs/parenting-in-the-wild/canoe-vs-kayak-how-they-re-different-and-which-one-is-right-for-you, https://www.blazinpaddles.com/kayaking-vs-canoeing/, https://buffaloriveroutfitters.com/blog/kayaking-vs-canoeing-whats-the-difference/, https://www.boatsafe.com/canoe-vs-kayak/, and https://paddlingmag.com/skills/buying-advice/canoe-vs-kayak/.
[25] United States v. Carborundum Co., 536 F.2d 373 (CCPA 1976) devised seven factors frequently cited by the courts and CBP as a guide to determine “whether imported merchandise falls within a particular class or kind” of goods. Carborundum is relevant when conducting a “principal use” analysis of language like “for pleasure or sports”.
[26] Surveying retailers is entirely appropriate under Carborundum. In one example of a Carborundum-based analysis, CBP even relied on customer reviews posted on Amazon.com to support the agency’s findings in a binding ruling for glass plant watering bulbs (HQ H258963 (July 24, 2017)).
[27] See https://www.watersportswhiz.com/kayak-vs-canoe/.
[28] To be clear, AUSRI 1(a) does not require that a principal use must be an overwhelming use. Principal use is simply the use that “exceeds any other single use.” (See, e.g., Aromont USA, Inc. v. United States, 671 F.3d 1310 (Fed. Cir. 2012).)
[29] A counter argument might say that it really doesn’t matter which side of the semicolon captures a kayak, because as long as the heading captures it then any distinction between kayaks and canoes would ultimately be resolved at the subheading levels. But this argument accepts ambiguity over clarity. To be defendable under audit, a classification rationale must provide clear justification for choosing the heading before proceeding to the subheadings.
[30] The tenet of invasive language was discussed, e.g., in Pillowtex Corp. v. United States, 983 F. Supp. 188 (Ct. Int’l Trade 1997).
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