                                     Slip Op. 17-21

                UNITED STATES COURT OF INTERNATIONAL TRADE


 WWRD U.S., LLC,

       Plaintiff,
                                              Before: Mark A. Barnett, Judge
           v.
                                              Court No. 11-00238
 UNITED STATES,

       Defendant.


                                       OPINION

[The court finds that U.S. Customs and Border Protection correctly classified the subject
imports. Accordingly, the court denies Plaintiff’s motion for summary judgment and
grants Defendant’s cross-motion for summary judgment.]

                                                             Dated: March 1, 2017

Daniel J. Gluck, Christopher M. Kane, and Mariana del Rio Kostenwein, Simon Gluck &
Kane LLP, of New York, NY, for plaintiff.

Beverly A. Farrell, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of New York, NY, for defendant. With her on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson,
Director, and Amy M. Rubin, Assistant Director.

      Barnett, Judge: Before the court are cross-motions for summary judgment. Pl.’s

Mot. for Summ. J., ECF No. 33-7; Pl.’s Mem. of Law in Supp. of Pl.’s Mot. for Summ. J.

(“Pl.’s Mem.”), ECF No. 33; Def.’s Cross-Mot. for Summ. J. and Def.’s Mem. of Law in

Opp’n to Pl.’s Mot. for Summ. J. and in Supp. of Def.’s Cross-Mot. for Summ. J. (“Def.’s

Mem.”), ECF No. 43. Plaintiff WWRD U.S., LLC, (“Plaintiff” or “WWRD”) contests the
Court No. 11-00238                                                                      Page 2


denial of several protests1 challenging U.S. Customs and Border Protection’s

(“Customs”) classification of the subject imports2 according to their constituent materials

and dutiable at rates ranging from three to six percent ad valorem. See generally

Summons, ECF No. 1; Compl., ECF No. 15; see also Pl.’s Mem. at 3-5.3 Plaintiff

contends that the subject imports qualified for duty free treatment pursuant to

subheading 9817.95.01 of the Harmonized Tariff Schedule of the United States

(“HTSUS”)4 as “Utilitarian articles of a kind used in the home in the performance of

specific religious or cultural ritual celebrations for religious or cultural holidays, or

religious festive occasions, such as Seder plates, blessing cups, menorahs or kinaras.”



1
  WWRD contests the denial of protest numbers 4601-11-100133, 4601-11-100149,
4601-11-100150, 4601-11-100152, 4601-11-100153, 4601-11-100363, and 4601-11-
100364. Summons at 4.
2
  The merchandise consists of dinnerware from Plaintiff’s “Old Britain Castles”
Christmas collections, dinnerware from Plaintiff’s “His Majesty” line of Thanksgiving
dinnerware, and crystalware from Plaintiff’s “12 Days of Christmas” collection. Pl.’s
Statement of Material Facts as to Which No Genuine Issue Exists (“Pl.’s SOF”) ¶ 10,
ECF No. 33-1; Def.’s Resp. to Pl.’s Statement of Material Facts as to Which No
Genuine Issue Exists (“Def.’s Resp. to Pl.’s SOF”) ¶ 10, ECF No. 47 (admitting the
above as material facts but denying that self-designation by Plaintiff of “Christmas” or
“Thanksgiving” merchandise qualifies it for duty free treatment). Plaintiff has withdrawn
its claim concerning “Wedding Heirloom Bowls.” See Pl.’s Mem. at 1 n.3; see also
Compl. ¶¶ 27-37. For a summary of the subject imports and their respective tariff
classifications assigned by Customs, see infra p. 7.
3
  Seven entries are at issue: Entry Numbers 31670184352, 31670186480,
31670180012, 31670179998, 31670180004, 31670210579, and 31670219208.
Summons at 4; Compl., Ex. 1.
4
  All citations to the HTSUS are to the 2009 and 2010 versions, which are identical in all
relevant respects, as determined by the date of importation of the merchandise. All
items from Plaintiff’s “Old Britain Castles” and “His Majesty” collections, and the flutes
from Plaintiff’s “12 Days of Christmas” collection, entered on several dates in 2009.
Decl. of Daniel J. Gluck, Esq. in Supp. of Pl.’s Mot. for Summ. J. (“Gluck Decl.”), Ex. G,
ECF No. 33-2. The hurricane lamps and punchbowls from Plaintiff’s “12 Days of
Christmas” collection entered on January 15, 2010. Gluck Decl., Ex. G.
Court No. 11-00238                                                                  Page 3


See generally Compl.; see also Pl.’s Mem. at 4, 6-7. Defendant United States

(“Defendant” or “the Government”) contends that Customs correctly classified the

subject imports. See Def.’s Mem. at 1, 3-4.

       There is no genuine issue of material fact regarding the properties of the subject

imports that would preclude summary judgment. The sole issue before the court is

whether, as a matter of law, the subject imports are properly classified under

subheading 9817.95.01 in addition to the tariff provisions corresponding to their

constituent materials. For the following reasons, the court finds that Customs properly

classified the subject imports according to their constituent materials and not under

HTSUS 9817.95.01.

                                      BACKGROUND

I.     Material Facts Not in Dispute

       The party moving for summary judgment must show "there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law."

United States Court of International Trade (“USCIT”) Rule 56(a). Movants should

present material facts as short and concise statements, in numbered paragraphs, and

cite to “particular parts of materials in the record” as support. USCIT Rule 56(c)(1)(A);

see also USCIT Rule 56.3(a)("factual positions described in Rule 56(c)(1)(A) must be

annexed to the motion in a separate, short and concise statement, in numbered

paragraphs"). In responsive papers, the nonmovant "must include correspondingly

numbered paragraphs responding to the numbered paragraphs in the statement of the

movant." USCIT Rule 56.3(b). Parties filed cross motions for summary judgment and
Court No. 11-00238                                                                      Page 4


submitted separate statements of undisputed material facts with their respective

motions and responses to the opposing party's statements. See Pl.’s SOF; Def.’s Resp.

to Pl.’s SOF; Def.’s Statement of Facts as to Which There Are No Genuine Issues to be

Tried (“Def.’s SOF”), ECF No. 43-2; Pl.’s Resp. to Def.’s Statement of Material Facts as

to Which No Genuine Issue Exists (“Pl.’s Resp. to Def.’s SOF”), ECF No. 44-2. Upon

review of the parties' facts (and supporting exhibits), the court finds the following

undisputed and material facts.5

       Plaintiff WWRD is the importer of record. Pl.’s SOF ¶ 2; Def.’s Resp. to Pl.’s

SOF ¶ 2. The subject imports comprise decorative ceramic plates and mugs from

WWRD’s “Old Britain Castles” dinnerware collections; decorative ceramic plates and

gravy boats from WWRD’s “His Majesty” dinnerware collection; and crystal flutes, punch

bowls, and footed hurricane lamps from WWRD’s “12 Days of Christmas” collection.6

Def.’s SOF ¶ 1; Pl.’s Resp. to Def.’s SOF ¶ 1; see also Pl.’s Mem., Ex.’s A-E (physical

samples of plates from Plaintiff’s “Old Britain Castles” and “His Majesty” lines of

dinnerware, and flutes from Plaintiff’s “12 Days of Christmas” line of crystalware); Gluck

Decl. ¶¶ 2-6 (verification of manual filing of exhibits). The "Old Britain Castles"

Christmas plates and mugs and the “12 Days of Christmas” crystal flutes and punch



5
  Citations are provided to the relevant paragraph number of the undisputed facts and
response; internal citations generally have been omitted.
6
  In their briefs, both parties refer to the plates as ceramic without citing support in the
record. Pl.’s Mem. at 1, 11; Def.’s Mem. at 3. While the underlying classification of the
subject merchandise according to its constituent material is not in dispute, the court
reviewed the physical samples provided and confirmed that the plates are ceramic.
Pl.’s Mem., Ex.’s A-E (physical samples of plates from Plaintiff’s “Old Britain Castles”
and “His Majesty” lines of dinnerware).
Court No. 11-00238                                                                  Page 5


bowls are "designed to be used to serve food and beverages at Christmas . . . dinner."

Pl.’s SOF ¶ 14; Def.’s Resp. to Pl.’s SOF ¶ 14.7

       The “Old Britain Castles Pink Christmas” plates and mugs feature a Christmas

tree motif. Aff. of Michael Craig (“Craig Aff.”) ¶¶ 5-8, ECF No. 33-3;8 Craig Aff., Ex’s. 1-

4, ECF No. 33-4; Pl.’s Mem., Ex.’s A, B. The plates measure 22cm and 27cm in

diameter. Craig Aff. ¶¶ 5-6; Gluck Decl., Ex. G (summary of subject merchandise).

Mugs in the “Old Britain Castles Christmas” collection feature a Christmas tree and

Santa Claus motif. Craig Aff. ¶ 9, Ex. 5.

       The plates and gravy boat in Plaintiff’s “His Majesty” collection feature a “regal

tom turkey” surrounded by “nuts, fruits, berries, and vegetables.” Craig Aff. ¶¶ 10-14,

Ex.’s 6-10; Pl.’s Mem., Ex. C. The plates measure 20cm in diameter. Craig Aff. ¶¶ 10-

13; Gluck Decl., Ex. G.

       The “Eileen” flute in WWRD’s “12 Days of Christmas” collection features “the

figure of a lady surrounded by hollies and berries symbolizing the ‘Nine Ladies Dancing’

portion of the ‘Twelve Days of Christmas’ song lyrics.” Craig Aff. ¶ 15, Ex. 11; Pl.’s

Mem., Ex. D. The “Glenmore” flute features “the figure of a lord surrounded by hollies



7
  Defendant denies the “His Majesty” plates and gravy boats, which feature a turkey
motif, were designed to be used as part of Thanksgiving dinner. Def.’s Resp. to Pl.’s
SOF ¶ 14. Defendant neither admits nor denies Plaintiff’s assertion that the “12 Days of
Christmas” hurricane lamps “provide light and ambiance to the holiday dinner table.”
See id.; Pl.’s SOF ¶ 14.
8
  The Craig Affidavit contains duplicate paragraphs numbered three through eight. See
Craig. Aff., pp.1-2 (page one contains paragraphs numbered one to eight, and a
subsequent paragraph numbered three; page two continues with paragraphs numbered
four onwards). The paragraphs cited to in connection with the court’s description of the
subject merchandise are those numbered paragraphs beginning on page 2.
Court No. 11-00238                                                               Page 6


and berries symbolizing the ‘Ten Lords A-Leaping’ portion of the ‘Twelve Days of

Christmas’ song lyrics.” Craig Aff. ¶ 16, Ex. 12; Pl.’s Mem., Ex. E. The footed hurricane

lamp and punchbowl depict various figures from the “Twelve Days of Christmas” song.

Craig Aff. ¶¶ 17, 18, Ex.’s 13, 14.

II.      Procedural History

         As noted above, this case involves seven entries of merchandise. Summons at

4; Compl., Ex. 1. The subject imports entered at the Ports of Newark, New Jersey, and

New York, New York, on several dates in 2009 and 2010, and Customs liquidated the

entries between August 20, 2010, and January 3, 2011. Summons at 4; Compl., Ex. 1;

see also Entry Documents in Court File.9 The following table summarizes the subject

imports and their respective tariff provisions assigned by Customs based upon the

items’ constituent materials:




9
    See supra note 4 regarding which products entered in 2009 and 2010.
Court No. 11-00238                                                                  Page 7



                                                                           Dutiable Rate
                                                         Customs’
                 Subject Import                                            (percentage
                                                       Classification
                                                                            ad valorem)
 Old Britain Castles - Pink Christmas (Pink and    6912.00.391010          4.5
 Green) plates and mugs
 Old Britain Castles - Pink Christmas (Pink)       6912.00.3910            4.5
 plates and mugs
 Old Britain Castles - Christmas coffee mugs       6912.00.3910            4.5
 His Majesty dinnerware plates                     6912.00.3910            4.5
 His Majesty gravy boats                           6912.00.3950            4.5
 12 Days of Christmas crystal flutes               7013.22.500011          3.0
 12 Days of Christmas punch bowls                  7013.41.500012          6.0
 12 Days of Christmas footed hurricane lamps       9405.50.400013          6.0

See Pl.’s SOF ¶¶ 19-23; Def.’s Resp. to Pl.’s SOF ¶¶ 19-23; Def.’s SOF ¶¶ 6(b)-10;

Pl.’s Resp. to Def.’s SOF ¶¶ 6(b)-10.14 WWRD timely and properly protested, which

protests Customs denied. Summons at 1; Compl. ¶ 4; Answer ¶ 4, ECF No. 19; Def.’s


10
    Subheading 6912.00.39 covers “Ceramic tableware, kitchenware, other household
articles and toilet articles, other than of porcelain or china: Tableware and kitchenware:
Other: Other: Available in specified sets: In any pattern for which the aggregate value of
the articles listed in additional U.S. note 6(b) of this chapter is over $38…4.5 [percent].”
11
    Subheading 7013.22.50 covers: “Glassware of a kind used for table, kitchen, toilet,
office, indoor decoration or similar purpose (other than that of heading 7010 or 7018):
Stemware drinking glasses, other than of glass-ceramics: Of lead crystal: Valued over
$5 each…3 [percent]."
12
    Subheading 7013.41.50 covers: “Glassware of a kind used for table, kitchen, toilet,
office, indoor decoration or similar purpose (other than that of heading 7010 or 7018):
Glassware of a kind used for table (other than drinking glasses) or kitchen purposes
other than that of glass-ceramics: Of lead crystal: Valued over $5 each…6 [percent].”
13
    Subheading 9405.50.40 covers: “Lamps and light fittings including searchlights and
spotlights and parts thereof, not elsewhere specified or included; illuminated signs,
illuminated nameplates and the like, having a permanently fixed light source, and parts
thereof not elsewhere specified or included: Non-electrical lamps and lighting fittings:
Other…6 [percent].”
14
    Defendant’s statement of facts contains two paragraphs numbered six. See Def.’s
SOF at 1-2. Plaintiff’s response duplicates Defendant’s numbering. See Pl.’s Resp. to
Def.’s SOF at 2-3, 4. For ease of identification, the court cites to the second paragraph
numbered six as paragraph 6(b).
Court No. 11-00238                                                                 Page 8


SOF ¶¶ 3-4; Pl.’s Resp. to Def.’s SOF ¶¶ 3-4. WWRD challenges the denial of its

protests. Parties have fully briefed the issues. The court now rules on the cross-

motions for summary judgment.

                          JURISDICTION AND STANDARD OF REVIEW

       The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1581(a).

Jurisdiction is uncontroverted in this case. Compl. ¶ 2; Answer ¶ 2; Pl.’s SOF ¶ 1; Def.’s

Resp. to Pl.’s SOF ¶ 1.

       The Court may grant summary judgment when “there is no genuine issue as to

any material fact,” and “the moving party is entitled to judgment as a matter of law.”

Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986); USCIT Rule 56(a).15 The court's

review of a classification decision involves two steps. First, it must determine the

meaning of the relevant tariff provisions, which is a question of law. See Bausch &

Lomb, Inc. v. United States, 148 F.3d 1363, 1365 (Fed. Cir. 1998) (citation omitted).

Second, it must determine whether the merchandise at issue falls within a particular

tariff provision, as construed, which is a question of fact. Id. (citation omitted). When

no factual dispute exists regarding the merchandise, resolution of the classification turns

solely on the first step. See id. at 1365–66; see also Carl Zeiss, Inc. v. United States,

195 F.3d 1375, 1378 (Fed. Cir. 1999).



15
  When parties have filed cross-motions for summary judgment, the court generally
must evaluate each party’s motion on its own merits, drawing all reasonable inferences
against the party whose motion is under consideration. JVC Co. of America, Div. of US
JVC Corp. v. United States, 234 F.3d 1348, 1351 (Fed. Cir. 2000); Specialty
Commodities Inc. v. United States, 40 CIT ___, ___, 19 F. Supp. 3d 1277, 1282 (2016).
Here, the material facts are undisputed.
Court No. 11-00238                                                                 Page 9


       The court reviews classification cases de novo. See 28 U.S.C. § 2640(a). While

the court accords deference to Customs classification rulings relative to their “power to

persuade,” United States v. Mead Corp., 533 U.S. 218, 235 (2001) (quoting Skidmore v.

Swift & Co., 323 U.S. 134, 140 (1944)), it has “an independent responsibility to decide

the legal issue of the proper meaning and scope of HTSUS terms,” Jedwards Int’l, Inc.

v. United States, 40 CIT ___, ___, 161 F. Supp. 3d 1354, 1357 (2016) (quoting Warner-

Lambert Co. v. United States, 407 F.3d 1207, 1209 (Fed. Cir. 2005)).16 It is “the court's

duty to find the correct result, by whatever procedure is best suited to the case at hand.”

Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed. Cir. 1984).

                                       DISCUSSION

I.     Legal Framework

       The General Rules of Interpretation (“GRIs”) provide the analytical framework for

the court's classification of goods. See N. Am. Processing Co. v. United States, 236

F.3d 695, 698 (Fed. Cir. 2001). “The HTSUS is designed so that most classification

questions can be answered by GRI 1.” Telebrands Corp. v. United States, 36 CIT ___,

___, 865 F. Supp. 2d 1277, 1280 (2012), aff’d 522 Fed. App’x 915 (Fed. Cir. 2013).

GRI 1 states that, “for legal purposes, classification shall be determined according to the

terms of the headings and any [relevant] section or chapter notes.” GRI 1, HTSUS.

The court considers chapter and section notes of the HTSUS in resolving classification



16
  According to Plaintiff, Customs issued a summary denial “without detailed analysis”
and parties have not otherwise provided the court with a Customs ruling. See Pl.’s
Mem. of Law in Resp. to Def.’s Cross-Mot. for Summ. J. and Pl.’s Reply in Further
Supp. of Pl.’s Mot. for Summ. J. (“Pl.’s Resp.”) at 3, ECF No. 44.
Court No. 11-00238                                                                 Page 10


disputes because they are statutory law, not interpretive rules. See Arko Foods Intern.,

Inc. v. United States, 654 F.3d 1361, 1364 (Fed. Cir. 2011) (citations omitted); see also

Park B. Smith, Ltd. v. United States, 347 F.3d 922, 929 (Fed. Cir. 2003) (chapter

and section notes are binding on the court).

       “Absent contrary legislative intent, HTSUS terms are to be ‘construed [according]

to their common and popular meaning.’” Baxter Healthcare Corp. v. United States, 182

F.3d 1333, 1337 (Fed. Cir. 1999) (quoting Marubeni Am. Corp. v. United States, 35 F.3d

530, 533 (Fed. Cir. 1994)). Courts may rely upon their own understanding of terms or

consult dictionaries, encyclopedias, scientific authorities, and other reliable information.

Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 789 (Fed. Cir. 1988); BASF

Corp. v. United States, 35 CIT ___, ___, 798 F. Supp. 2d 1353, 1357 (2011).17

II.    Overview of Plaintiff’s Proposed Classification

       The relevant chapter is Chapter 98, titled “Special Classification Provisions.”

Plaintiff contends the subject imports are properly classified under subheading

9817.95.01. See generally Pl.’s Mem.; Pl.’s Resp. Subheading 9817.95.01 covers:

       9817.95       Articles classifiable in subheadings 3924.10, 3926.90,
                     6307.90, 6911.10, 6912.00, 7013.22, 7013.28, 7013.41,
                     7013.49, 9405.20, 9405.40 or 9405.50, the foregoing
                     meeting the descriptions set forth below:
                     9817.95.01 Utilitarian articles of a kind used in the home in
                                    the performance of specific religious or cultural


17
  For additional guidance on the scope and meaning of tariff headings and chapter and
section notes, the court also may consider the Explanatory Notes (“EN”) to the
Harmonized Commodity Description and Coding System, developed by the World
Customs Organization. See Deckers Outdoor Corp. v. United States, 714 F.3d 1363,
1367 n. 1 (Fed. Cir. 2013). However, Chapter 98 and its associated subheadings do
not have ENs.
Court No. 11-00238                                                                                 Page 11


                                    ritual celebrations for religious or cultural
                                    holidays, or religious festive occasions, such
                                    as Seder plates, blessing cups, menorahs or
                                    kinaras. . . . . . . . . . . . . . . . . . . . . . . . . . . .Free.

       Subheading 9817.95.01 went into effect on February 3, 2007. See Michael

Simon Design, Inc. v. United States, 609 F.3d 1335, 1337, 1340-44 (Fed. Cir. 2010)

(discussing the President’s authority to modify tariff rates by proclamation in response to

a challenge to Proclamation 8097, which, inter alia, adopted the International Trade

Commission’s (“ITC”) recommended amendment to the HTSUS establishing

subheading 9817.95.01); see also Proclamation 8097, 72 Fed. Reg. 453 (Jan. 4, 2007)

(“Proclamation 8097”). Before then, utilitarian items associated with a holiday or festive

occasion were classified under heading 9505, HTSUS, which covers “Festive, carnival

or other entertainment articles,” as interpreted by the Federal Circuit in a line of cases

beginning with Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed. Cir.

1997). See Michael Simon Design, Inc. v. United States, 33 CIT 1003, 1004-07, 637 F.

Supp. 2d 1218, 1220-23, (2009), aff’d 609 F.3d 1335 (Fed. Cir. 2010).

       In 2007, pursuant to Proclamation 8097, Chapter 9518 was amended to add Note

1(v), which excludes from Chapter 95 “Tableware, kitchenware, toilet articles, carpets

and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen

and similar articles having a utilitarian function (classified according to their constituent

material).” See Note 1(v) to Chapter 95; see also Michael Simon Design, 33 CIT at




18
  Chapter 95 covers “Toys, games and sports equipment; parts and accessories
thereof.”
Court No. 11-00238                                                                 Page 12


1006-07, 637 F. Supp. 2d at 1222-23; Proclamation 8097. A footnote to Note 1(v)

refers readers to subheading 9817.95. See Note 1(v) to Chapter 95. According to

Plaintiff, subheading 9817.95.01 was added so that certain items remained eligible for

duty free treatment in compliance with domestic obligations pursuant to the International

Convention on the Harmonized Commodity Description and Coding System

(“Convention”). See Pl.’s Mem. at 10.19

       Subheading 9817.95 contains two relevant provisions: (1) subheading

9817.95.01, defined above; and (2) subheading 9817.95.05, which covers “Utilitarian

items in the form of a three-dimensional representation of a symbol or motif clearly

associated with a specific holiday in the United States.” Although Plaintiff originally

claimed classification under both subheadings (as alternatives), Plaintiff now limits its

argument to subheading 9817.95.01. See Compl. ¶¶ 24-25, 34-35; Pl.’s Mem. at 10-20.




19
   The HTSUS constitutes domestic implementation of the Convention. See Faus
Group, Inc. v. United States, 28 CIT 1879, 1881 n.5, 358 F. Supp. 2d 1244, 1248 n.5
(2004) (citing the Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100–
418, § 1217, 102 Stat. 1107, 1147 (1988)). ITC-proposed modifications to the HTSUS
generally must “ensure substantial rate neutrality,” i.e., no significant changes in duties,
unless the changes are “consequent to, or necessitated by, nomenclature modifications
that are recommended under [§ 3005].” 19 U.S.C. § 3005(d)(1)(C), (d)(2) (2012); see
also Michael Simon Design, 33 CIT at 1005-06 & n.5, 637 F. Supp. 2d at 1221 & n.5.
While substantial rate neutrality is to guide the ITC’s exercise of its responsibilities in
proposing modifications to the HTSUS pursuant to 19 U.S.C. § 3005(d)(1)(C), it is not
an interpretive rule that guides or constrains the court in determining the correct
classification of a good after that modification has been proclaimed by the President.
See infra pp. 20-21.
Court No. 11-00238                                                                   Page 13


III.   The Subject Imports Are Not Classifiable Under Subheading 9817.95.01

       1. Parties’ Contentions

       In order to be classifiable under subheading 9817.95.01, the subject imports

must be: (1) classifiable in subheading 3924.10, 3926.90, 6307.90, 6911.10, 6912.00,

7013.22, 7013.28, 7013.41, 7013.49, 9405.20, 9405.40 or 9405.50; (2) utilitarian; (3) of

a kind used in the home; and (4) used in the performance of specific religious or cultural

ritual celebrations for religious or cultural holidays, or religious festive occasions.

Parties agree the subject imports meet the first three requirements;20 however, Parties

dispute whether the subject imports meet the fourth requirement. See Pl.’s Mem. at 11-

16; Pl.’s Resp. at 4; Def.’s Mem. at 9; Def.’s Reply at 5.

       Parties disagree about the scope of the term “ritual,” and whether the dinner

meals on Thanksgiving and Christmas, during which Plaintiff contends the merchandise

is used, constitute “specific cultural ritual celebrations.” See Pl.’s Mem. at 14-15; Def.’s

Mem. at 11-14. Plaintiff asserts that Thanksgiving and Christmas dinners “are specific

cultural ritual celebrations.” Pl.’s Mem. at 15. Defendant counters that “there is nothing



20
   Parties do not dispute that, for purposes of classifying the merchandise in question,
Thanksgiving and Christmas are “cultural holidays.” See Pl.’s Resp. at 5; Def.’s Reply
Mem. of Law in Opp. to Pl.’s Mot. for Summ. J. and in Further Supp. of Def.’s Cross-
Mot. for Summ. J. (“Def.’s Reply”) at 3, ECF No. 48 (arguing the merchandise is not
classifiable under subheading 9817.95.01 because it is not “used in the performance of
a ritual celebration,” not because Thanksgiving and Christmas are not cultural holidays);
Def.’s Reply at 6 (referring to Thanksgiving and Christmas as holidays). While
Christmas also is a religious holiday, Plaintiff does not assert that the merchandise in
question is used in connection with a specific religious ritual celebration. See Pl.’s
Mem. at 1, 14-16. Moreover, the decorations on the goods are secular in nature –
Christmas trees, Santa Claus, and depictions tied to the song “The Twelve Days of
Christmas.” See, e.g., Craig Aff. ¶¶ 5-18.
Court No. 11-00238                                                                  Page 14


ritualistic about Christmas or Thanksgiving dinner”; rather, they are “opportunities for

friends and families to get together and share a meal.” Def.’s Mem. at 13, 14.

       Parties also disagree about the test the court should use to determine whether

the subject imports are “of a kind . . . used in the performance of specific . . . cultural

ritual celebrations.”21 However, because resolution of the first issue disposes of this

case, the court does not reach this second issue.

       2. The Scope of “Specific Cultural Ritual Celebrations”

       As discussed above, classification is generally determined according to chapter

headings and relevant section or chapter notes. GRI 1, HTSUS. Section XXII22 does



21
   Plaintiff contends that subheading 9817.95.01 is a “use provision” requiring
application of Additional U.S. Interpretive Rule (“AUSIR”) 1(a). Pl.’s Mem. at 16.
Pursuant to AUSIR 1(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 articles belong, and the controlling use is the
         principal use[.]
Thus, Plaintiff contends, the court must apply the factors stated in United States v.
Carborundum Co., 63 C.C.P.A. 98 (1976), to determine whether the subject imports are
used in the performance of a specific cultural ritual celebration. Pl.’s Mem. at 17-20;
Pl.’s Resp. at 14-15. Defendant contends that classification under subheading
9817.95.01 requires the merchandise to meet the “Federal Circuit Festive Article Test,”
developed pursuant to the line of cases interpreting heading 9505, beginning with
Midwest of Cannon Falls, Inc. Def.’s Mem. at 7-11 (citing Midwest of Cannon Falls, 122
F.3d at 1423, Park B. Smith, Ltd., 347 F.3d at 922, and Michael Simon Design, 501
F.3d at 1303, as collectively forming the “Federal Circuit Festive Article Test”); Def.’s
Reply at 6-8. Defendant also relies on the exemplars in subheading 9817.95.01 to
argue that items classifiable under that provision must be “integral” to the ritual cultural
celebration. Def.’s Mem. at 13 (merchandise must be “necessary and integral” to the
ritual); Def.’s Reply at 9 (merchandise “must be clearly identifiable with and integral to
performing the ritual”).
22
   Section XXII includes “Special Classification Provisions; Temporary Legislation;
Temporary Modifications Established Pursuant to Trade Legislation; Additional Import
Court No. 11-00238                                                                     Page 15


not contain any section notes, and the only allocable chapter note does not inform the

meaning of the relevant tariff terms. 23 Chapter 98 does not contain four-digit headings,

but rather, is a collection of eight- or ten-digit subheadings covering a diverse array of

articles. Accordingly, the court considers the common meaning of the phrase “specific

… cultural ritual celebration” and, in particular, the term “ritual.” See Baxter Healthcare

Corp., 182 F.3d at 1337.

       Plaintiff offers several definitions of the term “ritual.” Plaintiff points to Merriam

Webster’s Collegiate Dictionary, which defines “ritual” as “a customarily repeated often

formal act or series of acts.” Pl.’s Mem. at 15 (citing Merriam Webster’s Collegiate

Dictionary 1011 (10th Ed.)). Plaintiff also cites various books and journal articles. First,

Plaintiff relies on a 1973 article, “Symbols in African Ritual,” which defines “ritual” as “a

stereotyped sequence of activities involving gestures, words, and objects, performed in

[sic] sequestered place.” Pl.’s Mem. at 14 (citing Victor W. Turner, Symbols in African

Ritual at 123, in Annual Editions: Readings in Anthropology ’75-‘76 (1975)); see also

Gluck Decl., Ex. I (copy of the article). Next, Plaintiff offers that a “ritual” is “a type of

expressive, symbolic, activity constructed of multiple behaviors that occur in a fixed,

episodic sequence, and that tend to be repeated over time. Ritual behavior is

dramatically scripted and acted out and is performed with formality, seriousness, and




Restrictions Established Pursuant to Section 22 of the Agricultural Adjustment Act, As
Amended.”
23
   Pursuant to Note 1 to Chapter 98, subheading 9817.95 “[is] not subject to the rule of
relative specificity in [GRI] 3(a).” There are no subchapter notes applicable to
subheading 9817.95.01.
Court No. 11-00238                                                                  Page 16


inner intensity.” Pl.’s Mem. at 14-15 (citing Dennis W. Rook, The Ritual Dimension of

Consumer Behavior, 12 J. of Consumer Behavior 251, 252 (1985)). Plaintiff also

proposes that “rituals” are “characterized by formalism, traditionalism, invariance, rule-

governance, sacral symbolism, and performance.” Pl.’s Mem. at 15 (citing Catherine

Bell, Ritual: Perspective and Dimensions 138-69 (1997)).

       Plaintiff seeks to establish that “Christmas and Thanksgiving dinners are specific

cultural ritual celebrations, involving the same motifs, themes and celebrations each

year.” Pl.’s Mem. at 15. Plaintiff contends that Christmas is a “vigorous ritual occasion .

. . prescrib[ing] the consumption of special food and drink at ceremonious occasions.”

Pl.’s Mem. at 15 (quoting Rook, supra). Plaintiff asserts that “[p]reparing or attending

Christmas dinner has been recognized as an unwritten rule,” Pl.’s Mem. at 15 (citing

Theodore Caplow, Rule Enforcement Without Visible Means: Christmas Gift Giving in

Middletown, 89 Am. J. of Sociology 1306, 1312-13 (1984)), and that Thanksgiving and

Christmas dinners “often involve festive table settings.” Pl.’s Mem. at 15 (citing A

Thanksgiving Tablescape with a View (Sept. 28, 2016, 1:02 PM),

http://betweennapsontheporch.net/thanksgiving-tablescape-with-johnson-brothers-his-

majesty-dishware/); see also Gluck Decl., Ex. H (copy of the webpage).

       Though proposing similar definitions of the term “ritual,” Defendant argues that

the dinners associated with Thanksgiving and Christmas lack “formal actions and words

that are repeated every year in the same fashion by everyone who celebrates those

events,” and instead are opportunities to share a meal. Def.’s Mem. at 13. Defendant

points to Webster’s New Collegiate Dictionary, which defines “ritual” as (1) “the
Court No. 11-00238                                                                 Page 17


established form for a ceremony,” such as “the order of words prescribed for a religious

ceremony,” and (2) “a ritual observance,” such as “a system of rites,” “a ceremonial act

or action,” or “any formal and customarily repeated act or series of acts.” Def.’s Mem. at

11-12 (quoting Webster’s New Collegiate Dictionary 992 (1979)). Defendant also relies

on an online dictionary defining “ritual” as “[a] ceremony in which the actions and

wording follow a prescribed form and order.” Def.’s Mem. at 12 (quoting Ritual,

http://www.thefreedictionary.com/ritual).

       Plaintiff responds that Defendant has interpreted the term “ritual” too narrowly,

and the sources Plaintiff supplied “define the term[] in less religious and more general

terms.” Pl.’s Resp. at 12. Plaintiff cites to an online dictionary in support of its argument

that “customary, traditional, annual dinners” are “central and important” to Thanksgiving

and Christmas. Pl.’s Resp. at 12 (citing Ritual, https://www.vocabulary.

com/dictionary/ritual); see also Decl. of Daniel J. Gluck, Esq. in Supp. of Pl.’s Resp. to

Def.’s Cross-Mot. for Summ. J. and Pl.’s Reply in Further Supp. of Pl.’s Mot. for Summ

J. (“Gluck Suppl. Decl.”), Ex. M (copy of webpage containing the dictionary definition),

ECF No. 44-1. That definition suggests an interpretation that roughly equates “ritual”

with “routine” or “tradition.” See Gluck Suppl. Decl., Ex. M (defining “ritual” as “a

ceremony or action performed in a customary way,” and providing the example of a

family “hav[ing] a Saturday night ritual of eating a big spaghetti dinner and then taking a

long walk to the ice cream shop”) (emphasis omitted). It further suggests that the term

“ritual” can describe “any time-honored tradition, like the Superbowl, or Mardi Gras, or

Sunday morning pancake breakfast.” Gluck Suppl. Decl., Ex. M
Court No. 11-00238                                                                  Page 18


       There is little question that Thanksgiving and Christmas are both cultural holidays

and the dinners associated with them are widely-observed cultural celebrations

performed on or around those holidays. That, however, is not the question before the

court. The subheading in question requires the performance of a “specific … cultural

ritual celebration.” As discussed by both parties, rituals generally encompass specific

scripted acts or series of acts that are customarily performed in an often formal or

solemn manner. The plain language of subheading 9817.95.01 does not support

broadly interpreting the term “ritual” as any event that occurs on a regular basis.

       Thanksgiving and Christmas -- like other cultural or religious holidays -- recur

annually, as do the celebrations associated with them. However, if subheading

9817.95.01 was intended to cover utilitarian items used in the home during religious or

cultural celebrations, whenever they routinely occur, and whatever they might entail, the

term “ritual” could have been omitted altogether. It is well settled “that a statute must, if

possible, be construed in such a fashion that every word has some operative effect.”

United States v. Nordic Village Inc., 503 U.S. 30, 36 (1992); see also China Diesel

Imports, Inc. v. United States, 18 CIT 1086, 1090, 870 F. Supp. 347, 351 (1994)

(“Courts are required to give effect to each word of a statute, whenever possible.”). The

term “ritual” only serves a purpose in this subheading when interpreted to mean the

performance of prescribed cultural or religious acts.

       Indeed, subheading 9817.95.01 speaks of “the performance of specific . . .

cultural ritual celebrations.” In support of its argument that Thanksgiving and Christmas

dinners involve ritualistic performance, Plaintiff offers nothing more than the highly non-
Court No. 11-00238                                                                  Page 19


specific “consumption of special food and drink,” and, perhaps, the use of “festive table

settings.” See Pl.’s Mem. at 15 (citations omitted). Plaintiff’s examples do not persuade

that Thanksgiving and Christmas dinners are “specific cultural ritual celebrations.”

       The exemplars included in the subheading support this interpretation.

Subheading 9817.95.01 covers “[u]tilitarian articles of a kind used in the home in the

performance of specific religious or cultural ritual celebrations . . ., such as Seder plates,

blessing cups, menorahs or kinaras.” In classification cases, the statutory construction

rule of ejusdem generis (“of the same kind”) requires that the subject imports “possess

the essential characteristics or purposes that unite the articles enumerated eo nomine in

order to be classified under the general terms.” Sports Graphics, Inc. v. United States,

24 F.3d 1390, 1392 (Fed. Cir. 1994) (citation omitted). As Defendant explains, a Seder

plate is used during Passover to hold six symbolic foods, a menorah is a candelabrum

used during Hanukkah, both Jewish celebrations, and a kinara is a candelabrum used

during Kwanzaa, which is a “secular seven-day festival in celebration of the African

heritage of African Americans.” Def.’s Mem. at 12-13 (citations omitted).24 Unlike the

subject imports, which are merely decorative items used to serve food and beverages or

provide lighting, see Def.’s SOF ¶ 1; Pl.’s Resp. to Def.’s SOF ¶ 1; Pl.’s Mem., Ex.’s A-




24
  Blessing cups appear to refer to the four cups of wine that participants consume
during Passover Seder, each of which corresponds to a significant phrase in the Torah,
see Samuel J. Levine, Second Annual Holocaust Remembrance Lecture at Washington
University[:] Jewish Law From Out of the Depths: Tragic Choices in the Holocaust, 10
Wash. U. Global Stud. L. Rev. 133, 139-40 (2011), and/or the cup that is used to hold
wine during Eucharistic prayer, see Albert S. Thayer, Sacramental Features of Ancient
and Modern Law, 14 Harv. L. Rev. 509, 516-517 (1901).
Court No. 11-00238                                                                   Page 20


E, the exemplars play a particular role within the sequence of activities that form the

respective religious or cultural ritual celebrations, see Def.’s Mem. at 12-13.25 Although

the exemplars do not necessarily indicate the limits of subheading 9817.95.01, they are

consistent with, and, therefore, support, the court’s consideration of “ritual” as

determinative here.

       One final point merits attention. Plaintiff suggests that classifying the

merchandise according to its constituent materials and not under subheading

9817.95.01 results in a “breech [sic] [of the Government’s] treaty obligations under the

[Convention]” because they would no longer be eligible for duty free treatment. Pl.’s

Mem. at 10. Assuming arguendo the merchandise would have qualified for duty free

treatment prior to February 2007, the requirement for substantial rate neutrality applies

to the ITC when it is recommending changes to the HTSUS. See supra note 19; 19

U.S.C. § 3005(d)(1)(C). Substantial rate neutrality does not factor into this court’s

mandate to apply the GRIs to determine the correct classification. See N. Am.

Processing Co., 236 F.3d at 698.

       Moreover, had the intention been to cover articles under subheading 9817.95.01

that previously would have qualified as “festive articles” under heading 9505 and the




25
   Plaintiff, without elaboration, appears to suggest that Thanksgiving and Christmas are
similar to Passover because each involves “a holiday dinner ritual.” Pl.’s Mem. at 16.
The fact of dinner, however, is insufficient to rise to the level of a ritualistic celebration.
Thanksgiving and Christmas dinners do not involve a particular sequence of events, or
even particular foods, unlike Passover, which involves the ordered consumption of six
symbolic foods during which “the narrative of the Exodus is recited.” See Def.’s Mem.
at 12 (citations omitted).
Court No. 11-00238                                                                      Page 21


Federal Circuit’s interpretation thereof, subheading 9817.95.01 could have been drafted

to more closely parallel subheading 9817.95.05.26 See Subheading 9817.95.05,

HTSUS (covering “[u]tilitarian items in the form of a three-dimensional representation of

a symbol or motif clearly associated with a specific holiday in the United States”)

(emphasis added); Park B. Smith, 347 F.3d at 927 (“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.”) (citing Midwest of

Cannon Falls, 122 F.3d at 1429) (emphasis added). The plain language of subheading

9817.95.01 requires more than that the article is “closely associated” with a holiday or

that it is “used” in some capacity during the celebrations; rather, subheading 9817.95.01

requires that the article is “used . . . in the performance of specific . . . cultural ritual

celebrations.” Accordingly, the court is not persuaded by Plaintiff’s appeal to substantial

rate neutrality.

       In sum, the court finds that the dinners associated with Thanksgiving and

Christmas are not “specific . . . cultural ritual celebrations” within the meaning of

subheading 9817.95.01. Accordingly, the subject imports are not classifiable under



26
  The ITC, later, expressly rejected Customs’ proposal to amend the HTSUS to replace
subheading 9817.95.05 with proposed subheading 9817.95.02, which would cover
“utilitarian articles ‘incorporating a symbol and/or motif that is closely associated with a
festive occasion,’” whether three-dimensional or not. See Certain Festive Articles:
Recommendations for Modifying the Harmonized Tariff Schedule of the United States,
USITC Pub. No. 4224, Inv. No. 1205-9 at 3-4, 9-10 (Apr. 2011); see also id. App. A
(Customs’ Request Letter). Customs proposed the change on the basis that Note 1(v)
to Chapter 95 had resulted in increased duties on festive utilitarian articles that formerly
would have been entitled to duty free treatment under Chapter 95 pursuant to Federal
Circuit case law. See id. at 3, App. A.
Court No. 11-00238                                                               Page 22


subheading 9817.95.01. Upon review of Parties’ statements of undisputed facts and

supporting exhibits, the court holds that Customs correctly classified the subject imports

according to their constituent materials.

                                       CONCLUSION

       For the foregoing reasons, the court holds that Customs correctly classified the

subject imports. The court denies Plaintiff’s motion for summary judgment and grants

Defendant’s cross-motion for summary judgment. Judgment will be entered

accordingly.




                                                /s/   Mark A. Barnett
                                                Mark A. Barnett, Judge

Dated: March 1, 2017
      New York, New York
