Decisions of the United States Court of International Trade

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Decisions of the United States

Court of International Trade

䉬

Slip Op. 07–92

GATEC CORP., Plaintiff, v. UNITED STATES, Defendant.

Before: Richard W. Goldberg, Senior Judge

Court No. 03–00165

[Plaintiff’s motion for summary judgment is denied, anddefendant’s motion for

summary judgment is granted.]

Dated: June 6, 2007

Weiss Berzowski Brady LLP (Barry R. White) for Plaintiff Agatec Corp.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director Barbara S.

Williams, Attorney-in-Charge, International Trade Field Office, Commercial Litiga-

tion Branch, Civil Division, United States Department of Justice (James A. Curley);

Su-JinYoo, Office of Assistant Chief Counsel, Bureau of Customs and Border Protec-

tion, United States Department of Homeland Security, of counsel, for Defendant

United States.

OPINION

Goldberg, Senior Judge: This is a classification case brought by

plaintiff Agatec Corp., a distributor of electrical levels and accesso-

ries manufactured by Agatec France, against defendant U.S. Cus-

toms and Border Protection (‘‘Customs’’). Before the Court are the

parties’ cross-motions for summary judgment under USCIT Rule 56.

I. BACKGROUND

On February 6, 2002, Agatec imported a shipment of two varieties

of electrical laser levels, the A410S and the GAT120, along with sev-

eral accessories. In its import documentation, Agatec classified the

merchandise under subheading 9015.30.4000 of the Harmonized

Tariff Schedule of the United States (2002) (‘‘HTSUS’’). Customs liq-

uidated the merchandise on June 6, 2002 under subheading

9031.49.9000 of the HTSUS. Agatec timely protested Customs’ clas-

sification. After Customs denied the protest, Agatec commenced this

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case pursuant to 19 U.S.C. § 1514(a) and 28 U.S.C. §§ 2631–37. The

Court has jurisdiction under 28 U.S.C. § 1581(a).

II. RECORD CHARACTERISTICS OF THE

IMPORTED PRODUCT

The A410S and GAT120 products at issue in this case emit hori-

zontal or vertical beams of light allowing the user to find level and

plumb. See Tawil Aff. ¶ 3; Def.’s Resp. Pl.’s Stat. ‘‘Undisputed’’ Facts

2–3. Both laser levels can be used only in one dimension. Kiss Decl.

¶ 7. Their maximum operational range is 1000 feet. Id. ¶7(citing

Pl.’s Ex. A (The Level of Excellence) (Agatec’s product catalogue) at 6

&8).

Both levels are usually mounted on a tripod, especially when it is

helpful to give the laser some height off the ground. Tawil Aff. ¶ 7;

Def.’s Resp. Pl.’s Stat. ‘‘Undisputed’’ Facts 9. The levels may work in

tandem with a receiver which is mounted on an excavator or grade

rod to receive the level’s beam. Tawil Aff. ¶ 7; Def.’s Resp. Pl.’s Stat.

‘‘Undisputed’’ Facts 9.

The A410S and GAT120 levels are used in construction projects for

houses or small buildings, as well as landscaping for such struc-

tures. Kiss Decl. ¶¶ 6–7 & 9; Pl.’s Ex. C at 2 (instruction manual for

GAT120 electronic level); Pl.’s Ex. D at 2 (instruction manual for

A410S automatic laser). The instruction manual for the GAT120

level describes the product as ‘‘ideal for leveling applications in the

construction industry.’’ Pl.’s Ex. C at 2. It can be used for indoor and

outdoor projects. Id. Agatec’s product catalogue advertises the

GAT120 as ‘‘[i]deal for contractors who work primarily in horizontal,

but have occasional use for vertical alignment at short distances.’’

Pl.’s Ex. A, at 6. The instruction manual for the A410S level de-

scribes the product as ‘‘an automatic visible laser that can be used

for leveling, vertical alignment, plumbing and squaring. Applications

include installing suspended ceilings, technical flooring, partitions

and a variety of outdoor alignment work.’’ Pl.’s Ex. D at 2. Notwith-

standing its occasional outdoor applications, the A410S product was

‘‘designed with the interior contractor in mind,’’ Pl.’s Ex. A at 13, and

is used for ‘‘[i]nstalling and aligning tilt-up walls, partitions and

window and door frames’’ as well as ‘‘[s]quaring walls, decks, and

foundations.’’ Id. at 8. In addition to the functionality described in

the product catalogue and instruction manuals, Agatec president

Gabriel Tawil states that with the help of a receiver mounted on an

excavator, ‘‘the laser precisely measures the distance above or below

an established benchmark.’’ Tawil Aff. ¶ 3.

Customs produced an affidavit of Richard Kiss, the Chief of Sur-

vey for the New York District of the Operations Division of the U.S.

Army Corps of Engineers. Kiss describes the operability of these la-

ser levels as one of ‘‘lower order surveying,’’ which he defines in dis-

tinction to ‘‘higher order surveying.’’ See id. ¶¶ 5–7. ‘‘Higher order

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survey’’ levels require great accuracy and operate in three dimen-

sions. Kiss Decl. ¶¶5&7.TheU.S.Army Corps of Engineers ex-

ecutes ‘‘higher order surveying’’ projects such as preparing land or

hydrographic maps, establishing boundaries, preparing for the con-

struction of major public works such as dams, highways or bridges,

calculating the area of a piece of land, triangulating, or determining

the height of objects above or below some horizontal reference level.

See id. ¶ 5. Kiss lists representative ‘‘lower order surveying’’ applica-

tions as ‘‘smaller-scale foundation and landscaping work, and inte-

rior work such as finding level and plumb.’’ Id. ¶ 9.

III. CONTESTED HTSUS HEADINGS

Agatec believes that both the GAT120 and the A410S laser levels

are correctly classified under HTSUS 9015.30.4000. Customs classi-

fied the laser levels under HTSUS 9031.49.9000 and the parts and

accessories under HTSUS 9031.90.5800.

HTSUS subheading 9015.30.4000 covers:

Surveying (including photogrammetrical surveying), hydro-

graphic, oceanographic, hydrological, meteorological or geo-

physical instruments and appliances, excluding compasses; range

finders; parts and accessories thereof:

...

Levels:

...

Electrical....

HTSUS 9015.30.4000. By contrast, HTSUS subheading

9031.49.9000 covers:

Measuring or checking instruments, appliances and machines, not

specified or included elsewhere in this chapter; profile projectors;

parts and accessories thereof:

...

Other:

...

Other....

Id. 9031.49.9000. HTSUS subheading 9031.90.5800 covers ‘‘parts

and accessories...of other optical instruments and appliances,

other than test benches....’’Id. 9031.90.5800.

IV. STANDARD OF REVIEW

‘‘[S]ummary judgment is proper ‘if the pleadings [and the discov-

ery materials] show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter

of law.’ ’’ Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting

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Fed. R. Civ. P. 56(c)) (alteration added).

‘‘In ruling on cross-motions

for summary judgment, the court must determine if there exist any

genuine issues of material fact and, if there are none, decide whether

either party has demonstrated its entitlement to judgment as a mat-

ter of law.’’ Am. Motorists Ins. Co. v. United States, 5 CIT 33, 36

(1983). The appropriate standard of review consists of two separate

inquiries: (1) a de novo review of Customs’ legal interpretations of

the tariff headings, see 28 U.S.C. § 2640(a)(1); and (2) a non-

deferential review of Customs’ factual findings subject to a presump-

tion of correctness in favor of Customs, see id. § 2639(a)(1). Cf. Uni-

versal Elec., Inc. v. United States, 112 F.3d 488, 493 (Fed. Cir. 1997)

(holding that ‘‘as a practical matter’’ the presumption of correctness

‘‘has force only as to factual components’’ of a Customs classification

decision).

V. DISCUSSION

A. Is HQ 965484 Entitled to Judicial Deference?

When reviewing a Customs classification, the Court is not bound

by the authority of any Customs ruling or interpretation. However,

where Customs has issued a thorough and logical ruling that reflects

its expertise in administering its detailed statutory scheme and ac-

cords with its previous interpretations, such decision may ‘‘claim re-

spect’’ in proportion to its persuasiveness under Skidmore v. Swift &

Co., 323 U.S. 134 (1944). United States v. Mead Corp., 533 U.S. 218,

221 (2001); see id. at 235.

Here, Customs argues in favor of extending Skidmore deference to

HQ 965484, a prior Customs classification ruling analyzing whether

certain merchandise was a ‘‘surveying instrument’’ as understood by

HTSUS heading 9015. In that ruling, Customs responded to a pro-

test by TLZ, Inc., a company that had imported three varieties of

‘‘electro-mechanical pendulum-based leveling system’’ using a laser

diode. HQ 965484 at 1. The laser diode is suspended on a pendulum

and uses gravity to find true level. See id. All three items were uti-

lized in construction projects to ‘‘align pipes, piers, and posts; square

foundations, walls, decks, window frames and door frames; plumb

walls, posts and door frames; set drainage grades; and furnish refer-

ence points for HVAC (heating, ventilation, air conditioning), light-

ing, sprinkler systems and skylights.’’ Id. In short, TLZ’s products

were in some respects similar, though by no means identical, to

Agatec’s laser levels. Customs analyzed the relevant HTSUS head-

ings and determined that TLZ’s laser diodes were not described in

HTSUS heading 9015. That determination rested on two alternative

‘‘When the Court’s rules are materially the same as the [Federal Rules of Civil Proce-

dure (‘‘FRCP’’)], the Court has found it appropriate to consider decisions and commentary

on the FRCP in interpreting its own rules.’’ Former Employees of Tyco Elec. v. U.S. Dep’t of

Labor, 27 CIT 380, 385, 259 F. Supp. 2d 1246, 1251 (2003).

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premises: (1) ‘‘protestant has not established that these goods are

used for surveying or that they are surveyor’s levels’’; and (2) the

goods ‘‘are within the exclusion of [Explanatory Note] 90.15....’’Id.

at 2. The cited Explanatory Note suggested that ‘‘levels (air bubble

type, etc.) used in building or constructional work’’ are not covered

by HTSUS heading 9015. The entirety of the agency’s analysis of

that issue is as follows:

We find that the [TMZ laser diodes] are within the exclusion of

EN 90.15, excerpted above. The laser diode aids these goods in

determining true level. Therefore, we find that they are not de-

scribed in heading 9015, HTSUS.

Id.

Customs contends that the Court should defer to the HQ 965484’s

holding ‘‘that construction laser levels are classifiable under Head-

ing 9031 and not Heading 9015....’’Def.’s Br.17–18. The problem

with that contention is that HQ 965484 says nothing of the sort. In

sum, HQ 965484 contains a straightforward recitation of the statu-

tory HTSUS text, as well as two factual findings: (1) that TLZ had

failed to prove that their laser diodes were used in surveying and (2)

that the TMZ laser diodes fell within the ‘‘construction levels’’ exclu-

sion of the explanatory note.

It is inappropriate to apply Customs’ findings in one highly fact-

specific classification ruling to a different product. See Structural

Indus., Inc. v. United States, 356 F.3d 1366, 1371 (Fed. Cir. 2004)

(‘‘[P]rior rulings with respect to similar but non-identical items are

also of little value in assessing the correctness of the classification of

a similar but not identical item.’’). The factual findings contained in

HQ 965484 respect an import product that is similar, though by no

means identical, to the A410S and GAT120 laser levels. No deference

is therefore due to Customs’ classification of the TLZ laser diodes.

On the other hand, if Customs is arguing that HQ 965484 articu-

lates a broad principle that all construction levels – and not merely

the TMZ laser diodes – are classifiable under heading 9031, HQ

965484 is hardly the sort of thorough and logical explanation to

which a court may defer under Skidmore. Indeed, no fair reading of

the ruling could countenance such an expansive interpretation. The

agency’s decision in that protest review remained focused squarely

on the product at issue, and avoided generalized characterizations of

construction levels. The Court finds that for purposes of this case

HQ 965484 is not entitled to Skidmore deference.

B. Are Agatec’s A410S and GAT120 Levels, Along with Their Acces-

sories, Classifiable Under Heading 9031 of the HTSUS?

The U.S. Court of Appeals for the Federal Circuit’s statement of

law in Orlando Food Corp. v. United States applies equally to this

case:

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The proper classification of merchandise entering the United

States is directed by the General Rules of Interpretation

(‘‘GRIs’’) of the HTSUS and the Additional United States Rules

of Interpretation. The HTSUS scheme is organized by head-

ings, each of whichhas one or more subheadings; the headings

set forth general categories of merchandise, and the

subheadingsset forth a more particularized segregation of the

goods within each [heading] category. At issue in this case are

two headings of the HTSUS and their accompanying subhead-

ings....

140 F.3d 1437, 1439 (Fed. Cir. 1998). Under GRI 1, a court is to con-

strue the competing headings to determine the heading under which

the merchandise at issue is classifiable. See id. (citing GRI 1,

HTSUS). The express terms of heading 9031 exclude any imported

merchandise that could be classified under heading 9015. See

HTSUS 9031 (including measuring or checking instruments ‘‘not

specified or included elsewhere in this chapter’’). As such, the parties

agree that the critical question in this case is whether heading 9015

applies to the merchandise.

The Federal Circuit has similarly provided guidance as to how

courts should construe HTSUS language:

HTSUS terms are construed according to their common and

commercial meanings, which are presumed to be the same ab-

sent contrary legislative intent. In construing a tariff term, the

court may rely on its own understanding of the terms as well as

upon lexicographic and scientific authorities. The court may

also refer to the Explanatory Notes accompanying a tariff sub-

heading. While these notes are not controlling legislative his-

tory, they are nonethelessintended to clarify the scope of

HTSUS subheadings and to offer guidance in their interpreta-

tion.

Len-Ron Mfg. Co., Inc. v. United States, 334 F.3d 1304, 1309 (Fed.

Cir. 2003) (citations omitted). In a case such as this, where the rel-

evant tariff classification is controlled by use, Customs must classify

the merchandise ‘‘in accordance with the use in the United States at,

or immediately prior to, the date of importation, of goods of that

class or kind to which the imported goods belong, and the controlling

useistheprincipaluse....’’Additional U.S. Rule of Interpretation 1.

‘‘Principal use’’ is the use that ‘‘exceeds any other single use.’’ Lenox

Collections v. United States, 20 CIT 194, 196 (1996) (quotation

marks omitted).

Agatec argues that its laser levels are electrical ‘‘surveying’’ equip-

ment. Agatec relies heavily on the 2002 decision Heli-Support v.

United States, which contains a helpful discussion of prior judicial

interpretations of HTSUS heading 9015. See Heli-Support, Inc. v.

United States, 26 CIT 352 (2002). The imported product at issue in

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Heli-Support was a helicopter – or aircraft – mounted high precision

instrument used to measure topography with a laser for later carto-

graphic use. See id. at 353. The court stressed the broad scope of

HTSUS heading 9015, noting that surveying includes more than

‘‘mere surface examinations’’ and was intended to include items that

are not the traditional tools of a surveyor’s trade. Id. at 355–56. Ulti-

mately, the court held that the imported product was classifiable un-

der heading 9015 and that the plaintiff’s interpretation of heading

9015 to include only instruments ‘‘used in the practice and science of

surveying by a surveyor’’ was incorrect. Id. at 356.

In finding that the imported instruments fell within the scope of

heading 9015, the court drew on three dictionary definitions of the

terms ‘‘survey’’ and ‘‘surveying.’’ Surveying, according to the Colum-

bia Encyclopedia (2d ed. 1950), is defined as ‘‘the science of finding

the relative position on or near the earth’s surface. Boundaries, ar-

eas, elevations, construction lines, and geographical or artificial fea-

tures are determined by the measurement of horizontal and vertical

distances and angles and by computations based in part on the prin-

ciples of geometry and trigonometry.’’ Id. Encyclopedia Americana

(1953) defines ‘‘surveying’’ as

the science of determining the positions of points on the earth’s

surface for the purpose of making therefrom a graphic repre-

sentation of the area. By the term earth’s surface is meant all of

the earth that can be explored – the bottoms of seas and rivers,

and the interior of mines, as well as the more accessible por-

tions. It includes the measurement of distances and angles and

the determination of elevations.

Id. The court then quoted a third and final definition of ‘‘surveying’’

from Webster’s Third New International Dictionary of the English

Language (1981) (‘‘Webster’s’’):

1. Survey:...2: to determine and delineate theform, extent,

and position of (as a tract of land, acoast, or a harbor) by taking

linear and angular measurements and by applying the prin-

ciples of geometry and trigonometry....

2. Survey:...3a:theprocess of surveying an area of land or

water: the operation of finding and delineating the contour, di-

mensions, and position of any part of the earth’s surface

whether land or water (a topographic and hydrographic, of a lo-

cality)....

Id. at 355–56.

Consideration of the three definitions cited in Heli-Support results

in a complicated picture. All three definitions would seem at first

blush to accommodate Agatec’s laser levels, which are capable of ex-

ecuting ‘‘precise[ ] measure[ments of] the distance above or below an

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established benchmark.’’ Pl.’s Stat. Mat. Facts Not Dispute ¶ 4. Re-

calling, however, that use designations must be made on the basis of

a product’s principal use, see Lenox Collections, 20 CIT at 196, it is

obvious that Agatec’s laser levels are not ‘‘surveying’’ instruments

and are therefore not classifiable under heading 9015. Nowhere in

the laser levels’ instruction manuals or catalogue product descrip-

tions does Agatec mention its levels’ ability to measure distance. The

laser levels themselves are incapable of spatial measurement; only

with the help of a mounted receiver device, such as the MR80S, can

they do so. See id. ¶¶ 4 & 17.

Still other infirmities undermine Agatec’s attempt to fit its laser

levels into the cited definitions. It is not enough that a product be

able to measure distance precisely; all three definitions include addi-

tional definitional prerequisites. For example, they all invoke the

‘‘earth’s surface’’ as a benchmark for the surveying measurements.

The Columbia Encyclopedia refers to the measurement of distances

and angles ‘‘on or near the earth’s surface.’’ Heli-Support 26 CIT at

355. Encyclopedia Americana requires that the measurements be

made relative to the ‘‘earth’s surface’’ itself. Id. Webster’s refers to

‘‘delineating the contour, dimensions, and position of any part of the

earth’s surface.’’ Id. Agatec’s laser levels operate chiefly in a con-

struction environment, and are not principally measuring positions

relative to the earth’s surface.

The A410S instruction manual lists its primary applications as

‘‘installing suspended ceilings, technical flooring, partitions and a

variety of outdoor alignment work.’’ Pl.’s Ex. D at 2. Indeed, the

A410S is designed for use by interior construction contractors, see

Pl.’s Ex. A at 13, a trade that is by definition involved in edifying

spaces that are distinct from the earth’s surface. The GAT120 level is

‘‘ideal for leveling applications in the construction industry.’’ Pl.’s Ex.

C at 2. Nowhere in the instruction manuals and the product cata-

logues is it suggested that the laser levels are used to measure the

The Explanatory Note to heading 9015 provides explicitly that some instruments used

in ‘‘constructional work’’ are included in heading 9015. It lists the varieties of instruments

includable in heading 9015:

These are generally intended for use in the field, for example, in cartography (land or

hydrographic maps); in the preparation of plans; for triangulation measurements; for

calculating the area of a piece of land; in determining heights above or below some hori-

zontal reference level; and for all similar measurements in constructional work (building

roads, dams, bridges, etc.), in mining, in military operations, etc.

Explanatory Notes, Chapter 90.15, 1603 (2d ed. 1996). Read in context, the mention of ‘‘con-

structional work’’ refers back to the listed ‘‘similar measurements’’ that properly determine

the scope of heading 9015. It is the nature of those ‘‘similar measurements’’ with which the

Explanatory Note is concerned, and the reference to ‘‘constructional work’’ simply affirms

that surveying work is not excludable from the ambit of heading 9015 on account of its be-

ing ‘‘constructional’’ in nature. It is not, as Agatec seems to suggest, an independent expan-

sion of heading 9015 to cover all merchandise roughly analogous to surveying instruments

that is used in the ‘‘constructional’’ industry.

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surface of the earth or determine the relative position of points to

the earth’s surface. Even the president’s affidavit, which is the only

evidence Agatec has produced referring to the measuring capabilities

of the laser levels, stops short of describing such use as the principal

use.

Looking at all the record evidence, references to construction

applications overshadow the sporadic mentions of direct measure-

ment of the earth’s surface. Measurements incident to man-made

construction projects may be taken ‘‘near’’ the earth surface and

therefore such measurements are not excludable for that reason

from the Columbia Encyclopedia’s definition. However, the Encyclo-

pedia Americana and Webster’s require the determination of posi-

tions of points on the earth’s surface. As such, those definitions are

not susceptible to a reading that would include Agatec’s laser levels.

Webster’s reports an alternative definition of ‘‘survey’’ that does not

refer to the earth’s surface as a benchmark. ‘‘To survey’’ is defined as

‘‘to determine and delineate the form, extent, and position of...by

taking linear and angular measurements and by applying the prin-

ciples of geometry and trigonometry.’’ Heli-Support, 26 CIT at 355.

This definition does not require the measurements to be relative to

the earth’s surface. On the other hand, it requires the taking of lin-

ear and angular measurements and the application of geometric and

trigonometric principles. Agatec’s laser levels are capable of measur-

ing in one dimension only and there is no evidence that they can

measure angles. See Kiss Decl. ¶ 7; Pl.’s Resp. Def.’s Stat. Mat. Facts

Not Dispute ¶ 13. Moreover, Agatec has not adduced any evidence at

all to establish how geometric or trigonometric principles may be ap-

plied to the data obtained from the laser levels’ measurements to dis-

cern the form and the position of objects.

As a final note, the Court should address the Explanatory Note to

heading 9015, invoked in support of both parties’ arguments. The

Explanatory Note explicitly includes instruments used ‘‘in determin-

ing heights above or below some horizontal reference level.’’ Ex-

planatory Notes, Chapter 90.15, at 1603. The Explanatory Note con-

cludes with the following limitation: ‘‘This heading does not

cover . . . [l]evels (air bubble type, etc.) used in building or construc-

tional work (e.g., by masons, carpenters or mechanics), and plumb-

Agatec’s product catalogue has a separate section for ‘‘Construction/Surveying Equip-

ment.’’ See Pl.’s Ex. A at 1 (providing table of contents for product catalogue). Neither the

GAT120 nor the A410S is included in that section. See id. at 20–22 Instead, both appear in

the ‘‘General Construction’’ section. See id. at 6 & 8.

The Encyclopedia Americana definition also requires the surveying measurements to

be made ‘‘for the purpose of making therefrom a graphic representation of the area.’’ Heli-

Support, 26 CIT at 355. Nowhere in the record is it suggested that Agatec’s laser levels may

be used in such a capacity. Furthermore, nowhere is it suggested that the targeted opera-

tors of Agatec’s laser levels create graphic representations based on the measurements reg-

istered by the laser levels.

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lines (heading 90.31).’’

Id. at 1604. The Explanatory Note, which of

course in no way hems the Court’s discretion to interpret the various

headings, see Len-Ron Mfg., 334 F.3d at 1309, sets up a mutually ex-

clusive set of categories: (1) instruments used in determining heights

above or below a horizontal reference level and (2) instruments that

are levels used in building or constructional work. As noted above,

the A410S and GAT120 laser levels seem to fit both descriptions. The

principal use of the products will control, and the record demon-

strates that such use is apparently that of a level used in construc-

tion work. Thus, the Explanatory Note supports the Court’s indepen-

dent finding that the common dictionary meanings prevent a

classification of the A410S and GAT120 laser levels under heading

9015 of the HTSUS.

C. If Agatec’s A410S and GAT120 Levels Are Not Classifiable Under

Heading 9015, Are They Classifiable under Heading 9031?

Heading 9031 includes ‘‘[m]easuring or checking instruments, ap-

pliances and machines, not specified or included elsewhere in this

chapter....’’Heading 9031, HTSUS. ‘‘Checking’’ is the present parti-

ciple of ‘‘check,’’ which Webster’s defines as ‘‘to inspect and ascertain

the condition of esp. in order to determine if the condition is satisfac-

tory’’ or to ‘‘investigate and ensure accuracy, authenticity, reliability,

safety, or satisfactory performance of.’’ Webster’s 381. ‘‘Measuring’’ is

the present participle of ‘‘measure,’’ which Webster’s defines as ‘‘to

lay off, mark, or fix (a specified distance or extent) by making mea-

surements’’ or ‘‘to appraise in comparison with something taken as a

criterion.’’ Id. 1400. The A410S and GAT120 laser levels are optical

instruments that aid in leveling, alignment, plumbing, and squaring

for building and construction projects. See supra Part II at 3. In ad-

dition, they may measure distance in one dimension. See id. These

functionalities obviously constitute measuring and checking as de-

fined by Webster’s and therefore classifiable under heading 9031.

Subheading 9031.49 includes those measuring or checking instru-

ments that (1) are ‘‘other optical instruments and appliances’’ and (2)

are not used for inspecting semiconductor wafers. See HTSUS

9031.49. The Explanatory Note to subheading 9031.49 provides that

‘‘[t]his subheading covers not only instruments and appliances which

Agatec also argues that the exclusionary clause of the Explanatory Note covers air

bubble levels only. See Pl.’s Reply 10. On Agatec’s reading, the exclusionary note differenti-

ates between electrical levels (which are covered by heading 9015) and non-electrical levels

(which are not). A quick glance at the text of the Explanatory Note suffices to demonstrate

the incorrectness of that position. The parenthetical reads ‘‘airbubble type, etc.’’ The use of

‘‘et cetera’’ (albeit complicated by the puzzling choice of ‘‘e.g.’’ later in the same sentence)

must mean that ‘‘air bubble type’’ levels are intended merely as an illustrative example of a

level ‘‘used in building or construction work’’ rather than a further turn in the already laby-

rinthine classification apparatus of heading 9015. The relevant distinction, then, is between

levels used in construction work and surveying instruments.

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provide a direct aid or enhancement to human vision, but also other

instruments and apparatus which function through the use of opti-

cal elements or processes.’’ Explanatory Notes, Chapter 90.31, at

1658. The A410S and GAT120 laser levels utilize visible laser beams

to aid human sight when aligning, plumbing, squaring, and leveling.

They are therefore classifiable under heading 9031, subheading 49.

VI. CONCLUSION

After careful review of the record, the relevant HTSUS provisions,

and the parties’ thorough and thoughtful briefs, the Court finds that

Customs has conclusively established that Agatec’s A410S and

GAT120 laser levels were properly classified under HTSUS

9031.49.9000. There remain no genuine issues of material fact, and

judgment shall be entered in favor of Customs in this case.

䉬

AGATEC CORP., Plaintiff, v. UNITED STATES, Defendant.

Before: Richard W. Goldberg, Senior Judge

Court No. 03–00165

JUDGMENT

Upon review of the parties’ respective motions for summary judg-

ment, and upon due deliberation, it is hereby

ORDERED that Plaintiff Agatec Corp.’s Motion for Sum-

maryJudgment is DENIED; and it is further

ORDERED that Defendant U.S. Customs and Border Protection’s

Motion for Summary Judgment is GRANTED; and it is further

ORDERED that judgment be entered in favor of

DefendantUnited States Customs and Border Protection.

IT IS SO ORDERED

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Slip Op. 07–93

OBERT L. ANDERSON, Plaintiff, v. UNITED STATES SEC’Y OF AGRICUL-

TURE, Defendant.

Before: Pogue, Judge

Court No. 05–00329

[Defendant’s remand determination affirmed as to result.]

Dated: June 7, 2007.

Robert L. Anderson, Plaintiff pro se.

Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia

M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S.

Department of Justice (David S. Silverbrand), for Defendant United States Secretary

of Agriculture.

OPINION AND ORDER

Pogue, Judge: In Anderson v. United States Sec’y of Agric.,30

CIT

, 462 F. Supp. 2d 1333 (2006) (‘‘Anderson I’’)

, the court re-

manded an initial determination from the United States Depart-

ment of Agriculture (‘‘USDA’’) denying Plaintiff ’s application for

Trade Adjustment Assistance (‘‘TAA’’) on the basis of the agency’s

summary conclusion that Mr. Anderson’s net fishing income had not

declined during the 2000 to 2003 time period. The court found not in

accordance with law the agency’s refusal to consider Mr. Anderson’s

claim that his net income, reported on an accrual basis, had declined

during the relevant time period.

The USDA filed its first remand determination with the court on

December 11, 2006. Reconsideration upon Remand of the Application

of Robert L. Anderson. (‘‘First Remand Determination’’). In its first

remand determination, the USDA did not, as directed by the court in

Anderson I, consider Mr. Anderson’s accrual-basis claim, but rather

once again found, relying solely on the net fishing income line as pre-

sented on Mr. Anderson’s tax return as submitted to the Internal

Revenue Service (‘‘IRS’’), that Mr. Anderson’s income did not decline

from the marketing year to the qualifying year. First Remand Deter-

mination. Upon review of the first remand determination, the court

again remanded the determination to the USDA, ordering the USDA

to comply with the court’s initial remand order. Anderson v. United

States Sec’y of Agric., 30 CIT

, 469 F. Supp. 2d 1300 (2006)

(‘‘Anderson II’’). On February 9, 2007, the USDA issued its second re-

mand determination, finding that using the accrual method of ac-

counting, Mr. Anderson’s income did decline over the period from the

marketing year to the qualifying year, and as such found that Mr.

Familiarity with the court’s decision is presumed.

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Anderson would be entitled to a TAA payment. Reconsideration upon

the Second Remand of the Application of Robert L. Anderson (‘‘Sec-

ond Remand Determination’’). The court affirms the results of

USDA’s second remand determination.

DISCUSSION

As discussed in the court’s opinion in Anderson I, Mr. Anderson

was part of a group of salmon fishermen that had been certified by

the USDA as eligible for TAA. To continue the two-part process for

obtaining TAA benefits, Mr. Anderson was then required to demon-

strate that he was personally qualified for such assistance, by pro-

viding evidence to the USDA that his net fishing income had de-

clined over the relevant two-year period. Anderson I,30CITat

462 F. Supp. 2d at 1334.

The net fishing income line on Mr. Anderson’s IRS returns indi-

cated that his income had actually increased between 2002 and

2003. Id. at 1335. Mr. Anderson, however, provided other supporting

information in conjunction with his TAA application. Id.

Mr. Ander-

son claimed that this other information documented that, considered

on an accrual basis, Mr. Anderson’s net fishing income had actually

declined over the period in question. The USDA never considered

Mr. Anderson’s supporting information, deeming it unnecessary to

do so, because the net fishing income line on his tax return had indi-

cated an increase in income.

The court found that the USDA’s determination failed to consider

an important aspect of the problem presented and was therefore not

in accordance with law. Id. at 1342. Specifically, the court concluded

that the USDA’s blind application of its regulation 7 C.F.R.

§ 1580.102(2004), without any consideration of the fact that appli-

cants can report their income on either an accrual or cash basis,

leads to the possibility of the USDA treating similarly situated

people differently. Id. at 1339. Additionally, the court explained that

in adopting the definition of ‘‘net farm income,’’ the USDA did not

comment on how the regulatory definition would have the effect of

including or excluding people based on their election of cash or ac-

crual accounting, and why such effects would be legally acceptable.

Id. at 1342. The court remanded the determination to the USDA in

order that the USDA:

consider the reasonableness of its regulation as applied to Mr.

Anderson, in view of the differences in cash versus accrual ac-

counting, the inequities the agency’s application presents, and

the fact that applicants elect their accounting technique with-

out knowing that it could adversely impact their eligibility for

For example, Mr. Anderson cited evidence of delayed payment for fish sold.

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benefits in the future. On remand, the agency shall reconsider

its position and may reopen the record to permit an acceptable

alternative solution.

Id.

In the USDA’s first remand determination, the USDA refused to

comply with the court’s order. First Remand Determination; Ander-

son II,30CIT

, 469 F. Supp. 2d 1300. In doing so, the agency

cited the decision of the U.S. Court of Appeals for the Federal Circuit

(‘‘CAFC’’) in Steen v. United States, 468 F. 3d 1357 (Fed. Cir. 2006) as

standing for the proposition that the USDA’s ‘‘regulatory definition

of the term ‘net farm income’ as applied to fishing income was rea-

sonable and cannot be condemned as arbitrary, capricious, or mani-

festly contrary to the statute.’’ First Remand Determination at 1

(quoting Steen, 468 F. 3d at 1363). Based on the USDA’s reading of

Steen, the USDA determined that it had no obligation to evaluate

the reasonableness of its application, to Mr. Anderson’s accrual-basis

claim, of its regulation defining ‘‘net fishing income.’’ The agency

stated that Steen ‘‘explicitly rejected the [P]laintiff ’s argument that

the agency is barred from using the standards applied under the In-

ternal Revenue Code as a basis for makings [sic] its determination of

eligibility of cash benefits under the TAA program.’’ First Remand

Determination at 2.

Finding that the agency failed to comply with the court’s remand

order by reading the holding of Steen too broadly, the court once

again remanded the matter to the USDA. Anderson II,30CIT

469 F. Supp. 2d 1300. The court noted that, in Steen, the CAFC ex-

plicitly qualified its holding regarding the net fishing income regula-

tion. Specifically, the CAFC stated: ‘‘Mr. Steen does not contend that

his tax returns distort the net amount of his income derived from all

fishing sources in the two relevant years....’’Anderson II, 30 CIT at

, 469 F. Supp. 2d at 1300–01; Steen, 468 F. 3d at 1364. Because

Mr. Anderson raised just such a claim—that his cash-basis tax re-

turns distorted the net amount of his income derived from all fishing

sources in the two relevant years—the court remanded the matter to

the USDA for reconsideration consistent with the court’s remand or-

ders. Anderson II, 30 CIT at

, 469 F. Supp. 2d. at 1301.

Notwithstanding the USDA’s assertion that it had no need to revisit the reasonableness

of the regulation as applied to Mr. Anderson, the USDA separately found that ‘‘based on the

evidence in the record, it [was] not possible to surmise how Mr. Anderson’s Schedule C’s

would have been calculated had he chosen the accrual method of accounting, nor is it pos-

sible to ascertain whether the IRS would have accepted them if they were submitted in such

a manner.’’ First Remand Determination at 2.

As the court further explained in Anderson II, the agency’s action in the first remand

was not only wrong on the law; it was also improper procedurally. The agency is not free to

disobey remand instructions by invoking its interpretation of precedent. Its choices are to

ask for rehearing, to accede or to fully comply under protest. Anderson II,30CIT

, 469

F. Supp. 2d.at 1301.

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In the second remand determination the USDA reopened the

record, and requested additional documentation from Mr. Anderson,

advising him that:

Acceptable documentation includes supporting documentation

from a certified public accountant orattorney, or relevant docu-

mentation and other supportingdocumentation and other sup-

porting financial data, suchas financial statements, balance

sheets, and reportsprepared for or provided to the Internal Rev-

enue Serviceor another U.S. Government agency.

Second Remand Determination at 1.

In response to the Department

of Agriculture’s request, Mr. Anderson provided a letter from his ac-

countant, with accompanying Schedule C’s prepared using the ac-

crual form of accounting (as opposed to the cash form of accounting

originally used by Mr. Anderson in his tax returns). Id. at 3. The ac-

countant’s statement reconstructed Mr. Anderson’s cash-basis tax fil-

ing, to present accrual-basis Schedule C’s. Id. In the letter, Mr.

Anderson’s accountant also includes the normal tax-filing disclaimer,

stating:

Our compilation was limited to presenting in the form pre-

scribed by the Internal Revenue Service information that is the

representation of the owner. We have not audited or reviewed

the financial statements referred to above, and, accordingly, do

not express an opinion or anyother form of assurance on them.

***

This report is intended solely for the information anduse of

Robert L. Anderson and the United States Department of Agri-

culture for determining qualification under the Trade Adjust-

ment Assistance for Farmers program, and is not intended and

should not be used by anyone other than these specified par-

ties.

Second Remand Determination at 2; Letter from Charles E. Morgan,

CPA, Jason, Morgan & Hent, PLLC, to Mr. Anderson (Apr. 6, 2007),

Attach. to Pl.’s Resp. to USDA Letter (‘‘Reply Letter’’).

The Department of Agriculture based this advice upon its own regulation, 7 C.F.R.

§ 1580.301(e)(6). This regulation explains the form of documentation that can be provided

to demonstrate to the agency that an individual producer’s net fishing income was less than

that during the producer’s pre-adjustment year. The regulations state that an applicant

shall provide either:

(i) Supporting documentation from a certified public accountant or attorney, or (ii) Rel-

evant documentation and other financial data, such as financial statements, balance

sheets, and reports prepared for or provided to the Internal Revenue Service or another

U.S. Government agency.

7 C.F.R. § 1580.301(e)(6)(2004); see also Second Remand Determination at 2.

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In commenting on the information provided by Mr. Anderson in re-

sponse to the agency’s request for additional information, the USDA

stated that

[t]he agency does not regard this documentation which accord-

ing to his certified public account [sic] only relies upon Mr.

Anderson’s representations, rather than documentation or

other supporting financial data reported to the Internal Rev-

enue Service or another U.S. Government agency, without any

audit or review of the statements, in conjunction with the certi-

fied public accountant’s unwillingness to express an opinion or

any assurance on them, as complying with the certification that

his net fishing income was less than that during the pre-

adjustment year. The very purpose of requiring such documen-

tation is to verify the producer’s certification that his income

actually declined in order to determine eligibility for cash ben-

efits. Merely presenting Mr. Anderson’s representations on

Schedule C’s does not adequately support his certification that

his net fishing income was less than his income in the pre-

adjustment year. Furthermore, the certified public accountant’s

limiting the use of the report to Mr. Anderson and the Depart-

ment of Agriculture does not meet the requirement in the regu-

lation that the net fishing income be net profit or loss reported

to the Internal Revenue Service. 7 C.F.R. § 1580.102 (2004). In

addition, it appears that these revisions to his income are not

being reported to the Internal Revenue Service.

Second Remand Determination at 3.

Despite this analysis, the agency then determined, based on Mr.

Anderson’s submissions, that his ‘‘income on an accrual basis de-

clined from the pre-adjustment year, 2001, to the most recent mar-

keting year, 2002.’’ Id. at 3. Based on that finding, the USDA further

found that ‘‘[i]f this Court’s decision is the final decision after all op-

portunities for appeal have been exhausted, based upon an accrual

method of accounting...Mr.Anderson would be entitled to a TAA

payment.’’ Id. at 4.

The USDA, in its second remand determination, provided no further analysis of the

reasonableness of its application of its regulation to Mr. Anderson, but rather continued to

object to the usage of the accrual method of accounting to determine whether or not Mr.

Anderson’s net fishing income declined, stating:

[t]he agency disagrees with the application of the accrual method of accounting in deter-

mining whether Mr. Anderson’s net fishing income declined, because Mr. Anderson had

reported his net fishing income on a cash basis to the Internal Revenue Service, and is

only doing so under protest, in accordance with the Court’s Order.

Second Remand Determination at 2.

The court notes that in its initial opinion, it had directed the USDA to reexamine the rea-

sonableness of its regulation (and the regulation’s interaction with farmers’ legal right to

choose to report their business income on either a cash or accrual basis), as applied to Mr.

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Mr. Anderson, in his Reply Letter, stated that he provided informa-

tion in accordance with the plain language of the USDA’s regulation

and the agency’s request to Mr. Anderson for supporting documenta-

tion. Mr. Anderson, a pro se plaintiff, stated, in his response:

I did provide supporting documentation from a CPA. This sup-

porting documentation was provided to the USDA, (a US gov-

ernment agency). The regulation asked me to provide support-

ing documentation from a CPA, OR a report prepared for, or

provided to a US government agency. I provided both.

Reply Letter at 2 (emphasis in original).

The plain language of the regulation, with which Mr. Anderson

sought to comply,

supports Mr. Anderson’s interpretation. 7 C.F.R.

§ 1580.301(e)(6)(2004); see Christensen v. Harris County, 529 U.S.

576, 588 (2000)(An agency’s interpretation of its own regulation is

not entitled to deference when it is contrary to the plain language of

the regulation). The USDA, as indicated by its comments quoted

above, seems to believe that its regulations require more than is

stated by their terms. This, however, in addition to ignoring the

plain language of the regulation, ignores the court’s two previous

rulings which require the USDA to evaluate the reasonableness of

its application of 7 C.F.R. § 1580.102,

upon which the USDA relies

for its definition and determination of net income, to Mr. Anderson.

Remand Determination at 2; Def.’s Resp. to Pl.’s Comments Upon

Remand at 5. The agency cannot have it both ways. If it wished to

invoke 7 C.F.R. § 1580.102 as a basis for rejecting Mr. Anderson’s fil-

ing, it was required to explain why its reasons for doing so were rea-

sonable and in accordance with law.

Despite the USDA’s refusal to evaluate the effects of its regulation

on individual producers, in light of the fact that farmers are in the

unique position of being permitted to choose accrual or cash account-

Anderson, in light of the fact that the regulation has the effect of treating similarly situated

people differently. Anderson I,30CITat

, 462 F. Supp. 2d at 1339; see Former Employ-

ees of Merrill Corporation v. United States,31CIT

, Slip Op. 07–46 at 27 (Mar. 28,

2007). The USDA has yet to make a reasonableness determination, as it first relied on Steen

to avoid evaluating the reasonableness of the application of the regulation, and then side-

stepped the issue altogether in the second remand determination by stating that it was ap-

plying the accrual method ‘‘only . . . under protest, in accordance with the Court’s order.’’

Second Remand Determination at 2. Accordingly, the court considers the issue waived.

Mr. Anderson claims, and Defendant does not dispute, that his attempts at compliance

with the USDA’s rules included a conversation with a contact person at the USDA in order

to ‘‘clarify exactly what the USDA wanted,’’ as the ‘‘USDA’s letter requesting supporting

documentation was not clear to [Mr. Anderson].’’ Reply Letter at 2 (emphasis in original). Ac-

cording to Mr. Anderson, he was told ‘‘that they wanted me to have a CPA recalculate my

2001 and 2002 fishing income on an accrual basis, using an IRS style format.’’ Id.

Under 7 C.F.R. § 1580.102, the USDA defines net farm in come as ‘‘net farm profit or

loss, excluding payments under this part, reported to the Internal Revenue Service Sched-

ules C or C-EZ for individuals or taxable income . . . during the tax year that most closely

corresponds with the marketing year under consideration.’’ 7 C.F.R. § 1580.102(2004).

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ing as a means of reporting their income, and despite the agency’s

seeming rejection of Mr. Anderson’s supporting information, the

USDA did approve the granting of TAA benefits to Mr. Anderson

pending the exhaustion of the agency’s opportunities for appeal.

Therefore, this court affirms the remand determination only as to

the results. See Hontex Enters., Inc. v. United States,30CIT

425 F. Supp. 2d 1315 (affirming the conclusion of a remand determi-

nation, but finding the summary and discussion sections not to be in

accordance with the remand instructions).

SO ORDERED.

䉬

Slip Op. 07–93

OBERT L. ANDERSON, Plaintiff, v. UNITED STATES SEC’Y OF AGRICUL-

TURE

, Defendant.

Before: Pogue, Judge

Court No. 05–00329

Judgment

This action has been duly submitted for decision, and this Court,

after due deliberation, has rendered a decision herein; now, in con-

formity with that decision, it is hereby

ORDERED that the United States Department of Agriculture re-

mand determination with respect to the application of Robert L.

Anderson is affirmed as to the results.

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Slip Op. 07–94

ILTON INDUSTRIES,INC., Plaintiff,v.UNITED STATES, Defendant.

Court No. 00–11–00528

[Plaintiff’s Motion for Summary Judgment granted in part; Defendant’s Cross-

Motion granted in part; Judgment to enter accordingly.]

Dated: June 11, 2007

Neville Peterson LLP (John M. Peterson, Michael T. Cone, and Maria E. Celis), for

Plaintiff.

Peter D. Keisler, Assistant Attorney General; Barbara S. Williams, Attorney in

Charge, International Trade Field Office, Commercial Litigation Branch, Civil Divi-

sion, U.S. Department of Justice (Mikki Graves Walser); Yelena Slepak, Office of the

Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border

Protection, U.S. Department of Homeland Security, Of Counsel; for Defendant.

OPINION

RIDGWAY, Judge:

At stake in this action is the tariff classification of more than 280

articles imported by plaintiff Wilton Industries, Inc.–including cake

toppers, as well as wedding cake figurine/topper bases, separator

plates, pillars, columns, plate legs, and plate pegs; wedding cake

fresh flower holders, inserts, and bowls; place card holders; various

models and styles of bakeware; cookie cutters and cookie stamps;

cake picks; and cake presses and cooking tools. The merchandise

was imported from the People’s Republic of China through the Port

of Chicago between May 5, 1999 and July 22, 1999. All entries were

liquidated between March 17, 2000 and June 2, 2000.

Over the course of litigation, the parties have reached agreement

on the classification of 123 articles. See Stipulation (Oct. 16, 2002).

In addition, Wilton has abandoned its claims as to another 15 ar-

ticles. See Plaintiff ’s Amended Statement of Material Facts As To

Which No Genuine Issue Exists ¶¶2–6.

Now pending before the Court are the parties’ cross-motions for

summary judgment as to the 158 articles still at issue. Wilton con-

tends that all remaining merchandise is properly classifiable as ‘‘fes-

tive articles’’ under heading 9505 of the Harmonized Tariff Schedule

of the United States (‘‘HTSUS’’),

duty-free. See generally Memoran-

dum in Support of Plaintiff ’s Motion for Summary Judgment (‘‘Pl.’s

The parties have agreed that their Stipulation is to be incorporated into the Judgment

in this action. All articles subject to the Stipulation are classified as ‘‘festive articles’’ under

one of two subheadings of HTSUS heading 9505. See Stipulation.

All citations are to the 1999 version of the HTSUS (including all Section and Chapter

Notes, and the General Rules of Interpretation). In addition, except as otherwise noted, all

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Brief’’); Memorandum in Opposition to Defendant’s Cross-Motion for

Summary Judgment (‘‘Pl.’s Reply Brief’’); Supplement to Plaintiff’s

Memorandum of Points and Authorities (‘‘Pl.’s Supp. Brief ’’); Plain-

tiff’s Response to Defendant’s Supplemental Memorandum (‘‘Pl.’s

Supp. Reply Brief’’).

According to the Government, however, the U.S. Customs Service

properly classified the remaining merchandise under HTSUS head-

ing 3924, heading 3926, heading 7615, or heading 7323 (depending

on the item at issue),

liquidating it at rates of duty ranging from

3.1% to 6.5% ad valorem. See generally Defendant’s Opposition to

Plaintiff’s Motion for Summary Judgment and Cross-Motion for

Summary Judgment (‘‘Def.’s Brief ’’); Defendant’s Reply to Plaintiff ’s

Opposition to Defendant’s Cross-Motion for Summary Judgment

(‘‘Def.’s Reply Brief ’’); Defendant’s Supplemental Memorandum in

Opposition to Plaintiff ’s Motion for Summary Judgment and In Sup-

port of Defendant’s Cross-Motion for Summary Judgment (‘‘Def.’s

Supp. Brief ’’); Defendant’s Reply to Plaintiff ’s Supplement to Plain-

tiff’s Memorandum of Points and Authorities (‘‘Def.’s Supp. Reply

Brief’’).

For the reasons set forth below, both Plaintiff ’s Motion for Sum-

mary Judgment and Defendant’s Cross-Motion for Summary Judg-

ment are granted in part and denied in part.

I. Background

On its website – an online paradise for the aspiring Martha

Stewarts of the world – plaintiff Wilton Industries, Inc. promotes it-

self as ‘‘the number one preferred brand name in baking and cake

decorating products for over 50 years.’’

Wilton is both a retailer

(selling directly to the public, through its Online Store and its cata-

citations to the Explanatory Notes are to the 1996 version, the relevant provisions of which

were in effect in 1999.

HTSUS heading 3924 covers ‘‘Tableware, kitchenware, other household articles and toi-

let articles, of plastics,’’ while heading 3926 covers ‘‘Other articles of plastics and articles of

other materials of headings 3901 to 3914.’’ Heading 7615 covers ‘‘Table, kitchen or other

household articles and parts thereof, of aluminum; pot scourers and scouring or polishing

pads, gloves and the like, of aluminum; sanitary ware and parts thereof, of aluminum.’’ And

heading 7323 covers ‘‘Table, kitchen or other household articles and parts thereof, of iron or

steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of

iron or steel.’’

According to Wilton’s website, the Illinois-based company markets a wide range of prod-

ucts. Wilton’s Online Store includes a Baby Shop, a Bakeware Shop, Books & Videos, a

Cake Decorating Shop, a Candy Shop, a Cookie Shop, a Party Shop, a Seasonal Shop, a

Theme & Character Shop, a Wedding Shop, and Stationery.

Among other things, Wilton’s website also offers tips on cake decorating techniques, sug-

gested party ideas, recommended recipes and projects, details about contests, information

about Wilton’s own School of Cake Decorating & Confectionary Art (as well as information

on ‘‘Wilton Method’’ classes at locations nationwide), and an online ‘‘Discussion Forum’’ de-

voted to the exchange of ideas on cake decorating and similar arts.

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log, the ‘‘Yearbook of Cake Decorating’’) and a wholesaler (selling to

general merchandise and specialty stores, such as Target, Wal-Mart,

and Michael’s).

Except as otherwise noted, the information in this section is drawn generally from the

Affirmation filed by Wilton, from the Statements of Material Facts Not in Dispute filed by

the parties, and from the pages printed from Wilton’s website and the pages from Wilton’s

Yearbook catalog which Wilton filed in support of its motion.

Throughout the course of litigation, the Government has criticized the quantum, the

quality, and the timing of the submission of Wilton’s evidence. Wilton, in turn, has criticized

the Government for proffering no evidence of its own (and, indeed, apparently conducting

little or no discovery in this matter). See Pl.’s Supp. Brief at 11–12; Pl.’s Supp. Reply Brief

at 5–6.

In Defendant’s Response to Plaintiff’s Statement of Facts, for example, the Government

emphasized that the exhibits filed with Wilton’s opening brief did not include depictions of

some of the bakeware and some of the cookie cutters and cookie stamps at issue (although

the Government failed to specify which were missing). See Def.’s Response to Pl.’s State-

ment of Facts ¶¶ 8–9; see also Def.’s Reply Brief at 10 n.3. The Government similarly criti-

cized Wilton for not filing affidavits in support of its case. See Def.’s Brief at 3, 21; Def.’s

Reply Brief at 9.

When Wilton later sought to cure the deficiencies in its exhibits, however, the Govern-

ment criticized Wilton’s submissions as ‘‘belated.’’ See, e.g., Def.’s Supp. Reply Brief at 1–2;

Letter to Court from Counsel for Defendant to Court (May 16, 2007). And the Government

has argued that the affirmation that Wilton filed should be stricken from the record on vari-

ous grounds. See generally Def.’s Reply Brief at 9–12.

To be sure, Wilton is obligated to submit proof documenting the nature of its merchan-

dise; and, to be sure, it largely defaulted on that obligation until relatively recently. It is not

the job of the court or opposing counsel to police the completeness of a party’s evidence, and

then notify that party of any deficiencies. The bottom line, however, is that the Government

has not even alleged – much less demonstrated – any actual prejudice as a result of Wilton’s

belated submissions in this action.

The Government’s objections to the affirmation that Wilton filed are also wide of the

mark. Accordingly, the Government’s motion to strike must be denied. The affirmation is

‘‘bare-bones,’’ to put it charitably. But the Government’s principal criticisms are that the af-

firmation is undated, and that the affiant was not in Wilton’s employ at the time of the

events at issue here. See generally Def.’s Reply Brief at 9–12. As a general matter, however,

‘‘the absence of the formal requirements of a jurat in a sworn affidavit does not invalidate

the statements [in the affidavit] or render them inadmissible.’’ Peters v. United States, 408

F.2d 719, 722 (Ct. Cl. 1969) (quoted in Pfeil v. Rogers, 757 F.2d 850, 859 (7

Cir. 1985)).

Thus, in the interests of justice, trial courts are admonished not to be ‘‘unnecessarily

hypertechnical and overly harsh on a party who unintentionally fails to make certain that

all technical, non-substantive requirements of execution are satisfied.’’ Pfeil, 757 F.2d at 859

(holding that district court erred in rejecting affidavits for lack of notarial seal); 11 James

Wm. Moore et al., Moore’s Federal Practice § 56.14[1][b] (3d ed. 2006). Certainly the Gov-

ernment has not suggested that the absence of a date on Wilton’s affirmation casts doubt on

the truth of any specific statement therein. See generally Pl.’s Supp. Brief at 12–13.

Moreover, the mere fact that the affiant was not in the employ of a company at the time

of specific events does not ipso facto mean that the affiant lacks the personal knowledge re-

quired to attest to facts that predate his or her tenure at the company. See Def.’s Reply Brief

at 9–10 (arguing that ‘‘there is no indication that [the affiant] has ever seen the merchan-

dise at issue, which was imported approximately three years prior to her assuming the posi-

tion of Vice President of Wilton’’). ‘‘[C]orporate officers are presumed to have personal

knowledge of acts of their corporation.’’ See 11 Moore’s Federal Practice § 56.14[1][c]. And it

is clear beyond cavil that ‘‘[p]ersonal knowledge ...doesnotrequirecontemporaneous

knowledge.’’ Id. (citing, inter alia, Dalton v. FDIC, 987 F.2d 1216, 1223 (5

Cir. 1993) (affi-

davit of corporate officer was not defective simply because he learned of transaction after it

had occurred)). Here, the Government has ‘‘produced no evidence to show that [Wilton’s affi-

ant] did not know what [s]he was talking about.’’ Zayre Corp. v. S.M. & R. Co., 882 F.2d

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Wilton sells the imported merchandise at issue (described in

greater detail below) as seasonal goods, and as goods associated with

certain special occasions. All of the merchandise is imported and sold

only in conjunction with holidays or other special occasions. Many of

1145, 1151 (7

Cir. 1989). Nor has the Government ‘‘produce[d] any evidence to specifically

cast doubt on [the affiant’s] credibility.’’ Id.; see generally Pl.’s Supp. Brief at 12–13.

At the eleventh hour (in the course of supplemental briefing), the parties have traded

barbs as to matters such as their respective evidentiary burdens and the effect of the pre-

sumption of correctness. See 28 U.S.C. § 2639(a)(1) (2000) (presumption of correctness).

Wilton argues that ‘‘once the plaintiff has provided a prima facie case, the government has

an obligation to provide its own evidentiary support for its claims that plaintiff ’s merchan-

dise is not entitled to classification under Heading 9505.’’ See generally Pl.’s Supp. Brief at

9–12. Wilton emphasizes: ‘‘[The Government] has not provided any factual evidence that

the subject merchandise should not be classified under Heading 9505. It has simply criti-

cized every aspect of [Wilton’s] evidence and stated that whatever has been provided is not

enough.’’ See Pl.’s Supp. Reply Brief at 5–6.

The Government argues – for the first time in its Supplemental Brief – that it ‘‘is not

required to produce evidence,’’ because, it asserts, ‘‘Wilton has failed to meet its burden of

contradicting Customs’ presumptively correct factual finding that the imported articles are

not ‘festive articles.’ ’’ See Def.’s Supp. Brief at 15–16 (quoting Saab Cars USA, Inc. v.

United States, 434 F.3d 1359, 1368 (Fed. Cir. 2006)).

In briefing these points, however, neither party has adequately addressed the interplay

of all relevant principles and doctrines. For example, the Government fails to acknowledge

that the parties are in agreement that no material facts are in dispute. See, e.g., Pl.’s Brief

at 13; Def.’s Brief at 2, 4, 6. And the statutory presumption of correctness attaches only to

Customs’ factual findings. Thus, where – as here – there are no disputes of material fact,

the presumption of correctness has no practical effect. See, e.g., Universal Elecs., Inc. v.

United States, 112 F.3d 488, 492 (Fed. Cir. 1997) (quoting Marbury v. Madison, 5 U.S. 137,

177 (1803)); id.(citing Goodman Mfg., L.P. v. United States, 69 F.3d 505, 508 (Fed. Cir.

1995)) (‘‘[W]e conclude that although the presumption of correctness applies to the ultimate

classification decision, [plaintiff] properly interprets Goodman as standing for the proposi-

tion that, as a practical matter, the presumption carries no force as to questions of law.’’).

As Wilton emphasizes, the Government similarly fails to acknowledge that it has cross-

moved for summary judgment, and ignores the implications of that fact. See Pl.’s Supp. Re-

ply Brief at 6. It is one thing for a party to defeat a movant’s motion for summary judgment;

it is something else entirely to prevail as cross-movant.

Finally, Saab – on which the Government seeks to rely heavily – was not a classification

case, and is thus distinguishable from the case at bar. See Saab, 434 F.3d at 1368. In classi-

fication cases, the Court has an independent obligation under Jarvis Clark to ascertain the

proper classification of merchandise in dispute. See Jarvis Clark Co. v. United States, 733

F.2d 873, 876 (Fed. Cir. 1984). And, as officers of the court, counsel have a duty to assist the

Court in that function. Even if Wilton had not made out a prima facie case for ‘‘festive ar-

ticles’’ classification of any of its merchandise, neither party has argued that the Court

would somehow be relieved of its Jarvis Clark obligation (and that the Government could

somehow, in essence, prevail on its cross-motion by default).

Fortunately, there is no need to definitively resolve such issues here. Notwithstanding

their posturing, the parties have steadfastly maintained throughout the course of litigation

– despite countless opportunities to indicate to the contrary (before, during, and after oral

argument) – that there are no disputes of material fact which would preclude summary

judgment in favor of either party. And, although the existing evidentiary record is thin on a

number of points, and does not afford the pristine basis for summary judgment that would

be optimal (and which a court is certainly entitled to expect), it is also abundantly clear that

a trial would serve no real purpose in this matter. See, e.g., Pl.’s Brief at 13 (stating that

‘‘[t]here is no genuine dispute of material fact’’); Def.’s Brief at 2 (noting that ‘‘[t]here is no

dispute between the parties regarding what the merchandise is or how it is actually used’’),

4 (‘‘Summary judgment is proper as there are no material facts in dispute.’’), 6 (‘‘Inasmuch

as the parties agree as to what the merchandise is and how it is used, this action is ripe for

summary judgment.’’).

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the items are marketed in connection with a particular holiday –

such as Christmas, Valentine’s Day, or Halloween – and are designed

and intended specifically for use in celebration of that holiday. Other

goods are marketed for so-called ‘‘private festive occasions,’’ such as

birthdays, or weddings and anniversaries, and are similarly de-

signed and intended specifically for use on such an occasion.

The merchandise that Wilton sells in connection with a holiday

(such as Christmas, Valentine’s Day, or Halloween) is advertised and

marketed in the appropriate section of the ‘‘Seasonal Shop’’ of

Wilton’s Online Store (e.g., the Christmas, Valentine’s Day, or Hal-

loween section), and in the appropriate section of Wilton’s Yearbook

catalog (e.g., the Christmas, Valentine’s Day, or Halloween section).

In stores such as Target, Wal-Mart, and Michael’s, such holiday mer-

chandise is displayed and sold in the seasonal section or festive prod-

ucts section of the store. The stores display the holiday merchandise

only in the weeks immediately preceding the holiday with which the

merchandise is associated. Thus, for example, shoppers will not find

Christmas tree cookie cutters or Santa-shaped baking pans on dis-

play in stores in the summer months. Nor does Wilton offer such

merchandise in its Online Store or its Yearbook catalog, except in the

Christmas sections. In Wilton’s Online Store, in its Yearbook catalog,

and in the retail stores that carry Wilton’s merchandise (e.g., Target,

Wal-Mart, and Michael’s), Wilton’s holiday-specific merchandise is

displayed and marketed alongside other holiday merchandise, in-

cluding festive cookware, kitchenware, and bakeware (such as Hal-

loween cookie jars, Christmas dinnerware, or Valentine’s Day mugs,

depending on the holiday season).

Merchandise like the non-holiday merchandise at issue – wedding

and anniversary merchandise, and birthday and other non-holiday

bakeware, for example – is advertised and marketed in the ‘‘Wedding

Shop,’’ the ‘‘Theme & Character Shop,’’ or the ‘‘Novelty Shaped Pans’’

section of the ‘‘Bakeware Shop’’ of Wilton’s Online Store, and in the

‘‘Wedding,’’ ‘‘Famous Characters,’’ or ‘‘Novelty Pans’’ section of

Wilton’s Yearbook catalog (as appropriate). Stores such as Target,

Wal-Mart, and Michael’s display such merchandise year-round in the

‘‘wedding’’ and/or the ‘‘birthday’’ or ‘‘party goods’’ sections of their

stores (as appropriate).

As described in greater detail below, the remaining merchandise

at issue includes various styles of wedding cake separator plates, pil-

lars and columns, and plate legs; Cherub Place Card Holders; sev-

eral dozen different items of bakeware, as well as cookie cutters and

cookie stamps; and certain cake press sets.

A. The Merchandise At Issue

Wedding Cake Separator Plates, Pillars/Columns, and Plate Legs.

The wedding merchandise remaining at issue consists of wedding

cake ‘‘separator plates,’’ pillars and columns, and separator plate

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‘‘legs.’’ All of the items are made of plastic, and are designed to be

used together to separate the tiers of a multi-tiered wedding cake, to

enhance the cake’s appearance and appeal at wedding celebrations.

Separator plates support each of the tiers of a multi-tiered wed-

ding cake. The separator plates are typically round (ranging from six

to eighteen inches in diameter), but also come in other shapes, in-

cluding square, hexagon, oval, and heart-shaped. A separator plate

can be converted to a ‘‘base plate’’ (used to support the bottom tier of

a cake, generally the largest of the tiers) by the addition of one-inch

plate ‘‘legs.’’ Plate ‘‘pegs’’ – which are no longer at issue in this action

– are used to anchor the cake tiers themselves to the separator

plates, and to prevent the tiers of the cake from slipping off the sepa-

rator plates when the cake is cut. The coordinating pillars and col-

umns range from three to eleven inches tall, and are designed to

snap onto the undersides of the separator plates, to separate and

support each tier of the wedding cake.

Because they are visible parts of a tiered wedding cake as it is pre-

sented, items such as separator plates, pillars and columns, and

plate legs must be not only strong, but also aesthetically pleasing.

Thus, descriptions of the items emphasize their beauty, as well as

their strength and their stability. And, while the separator plates,

pillars and columns, and plate legs are actually made of plastic (and

thus are inexpensive enough to be disposable), they are designed to

look like they are made from finely-cut crystal and other expensive

materials. They are also sold in several different styles (some el-

egantly simple and others more ornate, some traditional and others

more modern), to coordinate with one another,

and to appeal to the

differing personal tastes of bridal couples by enhancing whatever

overall look they are seeking to create with their wedding cake.

Although Wilton claims that the merchandise is properly classifi-

able as ‘‘festive articles’’ under HTSUS heading 9505, Customs liqui-

dated the wedding cake separator plates, pillars, and columns as

‘‘Tableware, kitchenware, other household articles and toilet articles,

of plastics: Tableware and kitchenware: Plates, cups, saucers, soup

Multi-tiered wedding-type cakes are created using one of two methods – the ‘‘stacked’’

method (where one tier is stacked directly on top of the tier below it), or the ‘‘pillar construc-

tion’’ method (where a tier is held aloft – above the tier below it – through the use of pillars

or columns, in combination with separator plates).

Thus, for example, pillars and/or columns are used to separate the tiers of a multi-

tiered cake. Pillars are offered in styles including ‘‘Crystal-Look,’’ ‘‘Crystal-Look Spiked,’’

‘‘Grecian,’’ ‘‘Grecian Spiked,’’ ‘‘Arched,’’ ‘‘Dancing Cupid,’’ ‘‘Swan,’’ and ‘‘Hidden.’’ Similarly,

columns are offered in ‘‘Lattice’’ and ‘‘Roman’’ styles.

All pillars and columns are available in a range of heights, and are specifically designed

to coordinate with various styles of cake separator plates, including ‘‘Crystal-Look [Separa-

tor] Plates’’ and other wedding merchandise from Wilton’s ‘‘Crystal-Look’’ line (for use with

Crystal-Look and Crystal-Look Spiked Pillars), and ‘‘Decorator Preferred,’’ ‘‘Baker’s Best,’’

‘‘Square,’’ ‘‘Heart,’’ ‘‘Oval,’’ and ‘‘Hexagon’’ separator plates (for use with other styles of pil-

lars, as well as all columns).

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bowls, cereal bowls, sugar bowls, creamers, gravy boats, serving

dishes and platters’’ and ‘‘Tableware, kitchenware, other household

articles and toilet articles, of plastics: Tableware and kitchenware:

Other,’’ under subheadings 3924.10.20 and 3924.10.50, respectively.

The plate legs were liquidated as ‘‘Other articles of plastics...:

Other: Other,’’ under subheading 3926.90.98.

Cherub Place Card Holders. Wilton’s Cherub Place Card Holders

are classic, bisque white cherub figurines (approximately three-and-

one-half inches tall), designed for use at wedding receptions to hold

place cards designating guests’ seating assignments or guests’ places

at their tables, and to coordinate with other stylistic and design ele-

ments of the nuptial celebration. Like the other wedding merchan-

dise discussed above, the place card holders are made of plastic, so

as to be inexpensive enough to be disposable.

Wilton contends that the Cherub Place Card Holders are properly

classifiable as ‘‘festive articles’’ under HTSUS heading 9505. How-

ever, Customs liquidated them under subheadings 3924.10.20 and

3926.90.98, as ‘‘Tableware, kitchenware, other household articles

and toilet articles, of plastics: Table and kitchenware: Plates, cups,

saucers, soup bowls, cereal bowls, sugar bowls, creamers, gravy

boats, serving dishes and platters’’ and ‘‘Other articles of plas-

tics...:Other: Other,’’ respectively.

Cake Press Sets. Cake presses are used to stamp or imprint special

designs, messages, or greetings onto frosted cakes. Typically, con-

trasting frosting or other edible material is then piped onto the de-

sign or lettering, to further highlight it. The cake press sets at issue

here feature greetings and sentiments such as ‘‘Merry Christmas,’’

‘‘Happy New Year,’’ and ‘‘Congratulations,’’ as well as presses of indi-

vidual words to be used in combination to form messages and greet-

ings, such as ‘‘Best’’ and ‘‘Wishes.’’ The cake presses are made of plas-

tic, and thus are inexpensive enough to be disposable.

Although Wilton claims that the cake press sets are properly clas-

sifiable as ‘‘festive articles’’ under HTSUS heading 9505, Customs

liquidated them under Chapter 39, ‘‘Plastics and Articles Thereof.’’

As Wilton pointedly observes, much of the merchandise that is the subject of the par-

ties’ Stipulation consists of wedding cake separator plates, columns, and pillars similar to

those still at issue. According to Wilton, there is ‘‘no reasonable basis’’ for distinguishing be-

tween the merchandise to which the parties have stipulated and that which remains in dis-

pute. See Stipulation; Pl.’s Brief at 21. And the parties have agreed that all merchandise

subject to the Stipulation should be classified as ‘‘festive articles’’ under heading 9505. See

Pl.’s Brief at 21; Pl.’s Reply Brief at 2; Pl.’s Supp. Reply Brief at 4–5. But see Def.’s Brief at

17 n.10, 18 n.11; Def.’s Supp. Brief at 8–9.

Customs liquidated different entries of the exact same merchandise under two different

tariff provisions. Contrary to the Government’s claim (see Def.’s Brief at 29), the different

classifications cannot be attributed to differences in ‘‘the material of which the article was

comprised.’’

The parties agree that the cake press sets were liquidated under Chapter 39 of the

HTSUS. However, there is a discrepancy in the record as to the precise heading and sub-

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Bakeware, Cookie Cutters, and Cookie Stamps. The bakeware at

issue consists of baking pans which are made of aluminum (except

for one pan), cookie cutters made of plastic (or, in one instance, stain-

less steel), and plastic cookie stamps.

With holiday baking a tradition in many households, Wilton’s line

of bakeware predictably includes pans marketed for specific holidays

(including pans in shapes such as Santa, a snowman, a heart, and a

jack-o-lantern), as well as pans in a wide range of other shapes (in-

cluding, inter alia, a dinosaur, a football, a sports utility vehicle, and

a horseshoe, as well as characters and themes with special appeal

for children, such as Blue’s Clues and Barbie). In addition to their

special shapes, a number of the pans also feature designs in ‘‘relief’’

or raised designs which are molded into the pans themselves. The

baking pans scan be filled with cake batter (or, in a few instances,

cookie dough or pie crust dough), and placed in the oven. When re-

moved from the pan after baking, the cake or other treat takes the

special shape of the pan, and may or may not be further decorated.

Like its baking pans, Wilton’s cookie cutters are in assorted

shapes such as Santa, a gingerbread man, a snowflake, a jack-o-

lantern, a ghost, and a heart. The cookie cutters can be pressed

down on cookie dough, producing ‘‘cut-outs’’ that – after baking –

yield cookies in the shapes of the cutters. The resulting cookies may

or may not be further decorated.

Wilton’s cookie stamps also feature a variety of designs and motifs

such as a Christmas tree, a gingerbread man, and a jack-o-lantern.

When a cookie stamp is pressed onto cookie dough, it ‘‘stamps’’ the

dough with an imprint of a design or motif. The design or motif is

then baked into the cookie itself. As with cookies produced using

cookie cutters, cookies featuring stamped designs or motifs may or

may not be further decorated after baking.

Over Wilton’s objections, Customs liquidated the bakeware as

‘‘Table, kitchen or other household articles..., of aluminum;...:

Table, kitchen or other household articles...: Other: Cooking and

kitchen ware: Not enameled or glazed and not containing nonstick

interior finishes: Other’’ under subheading 7615.19.70, except for

one pan, which was liquidated as ‘‘Table, kitchen or other household

articles...,ofironorsteel;...:Other: Other: Not coated or plated

with precious metal: Other: Cookingware’’ under subheading

7323.99.70. The cookie cutters and cookie stamps were liquidated as

‘‘Tableware, kitchenware, other household articles and toilet articles,

heading under which the merchandise was liquidated.

According to Wilton, Customs liquidated the cake press sets as ‘‘Tableware, kitchenware,

other household articles and toilet articles, of plastics: Tableware and kitchenware: Other,’’

under HTSUS subheading 3924.10.50. See, e.g., Pl.’s Brief at 7; Pl.’s Exh. G–1; Pl.’s

Amended Exh. G–1. In contrast, the Government contends that the cake press sets were liq-

uidated under subheading 3926.90.98, as ‘‘Other articles of plastics ...:Other:Other.’’See,

e.g., Def.’s Brief at 3, 29.

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of plastics: Tableware and kitchenware: Other,’’ under subheading

3924.10.50 (with the exception of one material cookie cutter, which

was liquidated as ‘‘Table, kitchen or other household articles...,of

iron or steel;...: Other: Of stainless steel,’’ under subheading

7323.93.00). Wilton contends that all the merchandise is properly

classifiable as ‘‘festive articles’’ under HTSUS heading 9505.

B. ‘‘Festive Articles’’ Under Heading 9505

As discussed above, the Government maintains that Customs

properly classified the merchandise at issue under various subhead-

ings of HTSUS headings 3924, 3926, 7615, and 7323. However, rel-

evant Section and Chapter Notes specifically and expressly exclude

merchandise from classification under those headings if – as Wilton

contends – the merchandise is classifiable under heading 9505.

See

Section Note 1(l) (excluding from classification under Section XV –

including, inter alia, headings under Chapters 73 and 76 – ‘‘[a]rticles

of chapter 95’’), Section XV (‘‘Base Metals and Articles of Base Met-

als’’), HTSUS; Chapter Note 2(v) (excluding from classification under

headings under Chapter 39 ‘‘[a]rticles of chapter 95’’), Chapter 39

(‘‘Plastics and Articles Thereof’’), HTSUS; see also Midwest of Can-

non Falls, Inc. v. United States, 122 F.3d 1423, 1429 (Fed. Cir. 1997)

(discussing application of similar exclusionary Chapter Note, in ‘‘fes-

tive articles’’ case); Park B. Smith, Ltd. v. United States, 347 F.3d

922, 926, 928 (Fed. Cir. 2003) (discussing application of similar ex-

clusionary Section Note, in ‘‘festive articles’’ case). Accordingly, if the

merchandise at issue is classifiable under HTSUS heading 9505, the

merchandise cannot be classified as Customs liquidated it.

In its entirety, the text of HTSUS heading 9505 – including its

subheadings – reads:

9505 Festive, carnival or other entertainment articles, includ-

ing magic tricks and practical joke articles; parts and ac-

cessories thereof:

9505.10 Articles for Christmas festivities and parts and ac-

cessories thereof:

Christmas ornaments:

9505.10.10 Of glass

Other:

9505.10.15 Of wood

9505.10.25 Other

Section and Chapter Notes are not optional interpretive rules, but – instead – are

statutory law, codified at 19 U.S.C. § 1202. See Park B. Smith, Ltd. v. United States, 347

F.3d 922, 926 (Fed. Cir. 2003) (citing Libas, Ltd. v. United States, 193 F.3d 1361, 1364 (Fed.

Cir. 1999)).

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9505.10.30 Nativity scenes and figures thereof

Other:

9505.10.40 Of plastics

Artificial Christmas trees

Other

9505.10.50 Other

Artificial Christmas trees

Other

9505.90 Other:

9505.90.20 Magic tricks and practical joke articles; parts

and accessories thereof

9505.90.40 Confetti, paper spirals or streamers, party favors

and noisemakers; parts and accessories thereof

9505.90.60 Other

See Heading 9505, HTSUS.

The Explanatory Notes to heading 9505, in turn, further provide:

95.05 – FESTIVE, CARNIVAL OR OTHER ENTERTAINMENT

ARTICLES, INCLUDING CONJURING TRICKS AND

NOVELTY JOKES

9505.10 – Articles for Christmas festivities

9505.90 – Other

This heading covers:

(A) Festive, carnival or other entertainment articles, which

in view of their intended use are generally made of non-durable ma-

terial. They include:

(1) Decorations such as festoons, garlands, Chinese lanterns,

etc., as well as various decorative articles made of paper,

metal foil, glass fibre, etc., for Christmas trees (e.g., tinsel,

stars, icicles), artificial snow, coloured balls, bells, lanterns,

etc. Cake and other decorations (e.g., animals, flags) which

are traditionally associated with a particular festival are

also classified here.

(2) Articles traditionally used at Christmas festivities, e.g.,ar-

tificial Christmas trees (these are sometimes of the folding

type), nativity scenes, Christmas crackers, Christmas

stockings, imitation yule logs.

(3) Articles of fancy dress, e.g., masks, false ears and noses,

wigs, false beards and moustaches (not being articles of

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postiche – heading 67.04), and paper hats. However, the

heading excludes fancy dress of textile materials, of

Chapter 61 or 62.

(4) Throw-balls of paper or cotton-wool, paper streamers (car-

nival tape), cardboard trumpets, ‘‘blow-outs’’, confetti, car-

nival umbrellas, etc. The heading excludes statuettes,

statues and the like of a kind used for decorating places of

worship.

(B) Conjuring tricks and novelty jokes, e.g., packs of cards,

tables, screens and containers, specially designed for the perfor-

mance of conjuring tricks; novelty jokes such as sneezing powder,

surprise sweets, water-jet button-holes and ‘‘Japanese flowers’’:

This heading also excludes:

(a) Natural Christmas trees (Chapter 6).

(b) Christmas candles and Christmas tree candles (heading

34.06).

(classified according to constituent material, for example,

Chapter 39 or 48).

(d) Christmas trees stands (classified according to constituent

material).

(e) Textile flags or bunting of heading 63.07.

(f) Electric garlands of all kinds (heading 94.05).

See Explanatory Notes, Heading 9505, HTSUS.

II. The Standard of Review

Under USCIT Rule 56, summary judgment is appropriate where

‘‘there is no genuine issue as to any material fact and...themoving

party is entitled to[]judgment as a matter of law.’’ USCIT R. 56(c).

Customs’ classification decisions are reviewed through a two-step

analysis – first construing the relevant tariff headings, then deter-

mining under which of those headings the merchandise at issue is

properly classified. Bausch & Lomb, Inc. v. United States, 148 F.3d

1363, 1365 (Fed. Cir. 1998) (citing Universal Elecs., Inc. v. United

States, 112 F.3d 488, 491 (Fed. Cir. 1997)).

Unlike Section and Chapter Notes (see n.11, supra), Explanatory Notes are not bind-

ing. See Park B. Smith, 347 F.3d at 929 n.3 (citing JVC Co. of America v. United States, 234

F.3d 1348, 1352 (Fed. Cir. 2000)). They may, however, be consulted for guidance and ‘‘are

generally indicative of the proper interpretation of the various HTSUS provisions.’’ JVC,

234 F.3d at 1352 (quoted in Park B. Smith, 347 F.3d at 929 n.3).

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Interpretation of the relevant tariff headings is a question of law,

while application of the terms to the merchandise is a question of

fact. See Bausch & Lomb, 148 F.3d at 1365. Summary judgment is

thus appropriate where the nature of the merchandise is not in ques-

tion, and the sole issue is its proper classification. See id. (it is ‘‘clear

that summary judgment is appropriate when there is no genuine

dispute as to the underlying factual issue of exactly what the mer-

chandise is’’) (citation omitted).

On review, Customs’ classification decisions are afforded a mea-

sure of deference proportional to their power to persuade, in accor-

dance with the principles set forth in Skidmore v. Swift & Co., 323

U.S. 134, 140 (1944). See United States v. Mead Corp., 533 U.S. 218,

235 (2001); Mead Corp. v. United States, 283 F.3d 1342, 1346 (Fed.

Cir. 2002). According to the Government, Customs’ determination in

the case at bar – denying ‘‘festive articles’’ classification to the mer-

chandise in dispute – is entitled to the full measure of Skidmore def-

erence. See generally Def.’s Brief at 4, 6–7; see also section III.D,

infra.

III. Analysis

The law of ‘‘festive articles’’ has been crisply and succinctly articu-

lated by the Court of Appeals. The challenge lies in the application of

that law. The seminal case is Midwest of Cannon Falls, which estab-

lished the basic criteria for classification of ‘‘festive articles’’ under

heading 9505. See generally Midwest of Cannon Falls, Inc. v. United

States, 122 F.3d 1423 (Fed. Cir. 1997). As synthesized and distilled in

Park B. Smith, those criteria require both (1) that the article ‘‘be

closely associated with a festive occasion,’’ and (2) that the article be

‘‘used or displayed principally during that festive occasion.’’ Park B.

Smith, Ltd. v. United States, 347 F.3d 922, 927 (Fed. Cir. 2003) (cit-

ing Midwest of Cannon Falls, 122 F.3d at 1429). If the use or display

of the article at other times would not be ‘‘aberrant,’’ then the article

does not satisfy the criteria. Park B. Smith, 347 F.3d at 929. See gen-

erally Russ Berrie & Co. v. United States, 381 F.3d 1334, 1336 (Fed.

Cir. 2004).

Wilton contends that all the merchandise here at issue is classifi-

able as ‘‘festive articles’’ under heading 9505. The Government vigor-

ously disputes Wilton’s claim, advancing several different argu-

ments.

The Government’s principal argument is a reprise of – and a varia-

tion on – an argument that has been raised (and rejected) in prior

‘‘festive article’’ cases. Specifically, the Government asserts that the

‘‘functional’’ or ‘‘utilitarian’’ nature of the subject merchandise pre-

cludes its classification as ‘‘festive articles’’ under heading 9505. In a

related argument, the Government contends that the vast majority

of the goods at issue are, at best, ‘‘one step removed’’ from ‘‘festive ar-

ticles.’’

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The Government further maintains that ‘‘festive’’ occasions for

purposes of heading 9505 are limited to recognized ‘‘holidays,’’ so

that merchandise related to occasions such as weddings, anniversa-

ries, and birthdays cannot be classified under that heading. In addi-

tion, as to most – if not all – of the items in dispute, the Government

contests Wilton’s claim that the articles’ motifs are ‘‘closely associ-

ated with’’ and/or that the articles themselves are ‘‘used or displayed

principally during’’ a particular festive occasion.

The parties’ respective claims and arguments are addressed in

turn below.

A. The Functional/Utilitarian Nature of the Subject Merchandise

As the Government emphasizes, much of the subject merchandise

can fairly be characterized as having a ‘‘functional’’ or ‘‘utilitarian’’

purpose (at least to some degree).

The bakeware, for example, is

Although the Government’s principal argument focuses on the ‘‘functional’’ or ‘‘utilitar-

ian’’ nature of the merchandise, its briefs are not models of clarity. They are laced with a

number of scattered, occasional, casual allusions to other concepts such as whether the mer-

chandise at issue is ‘‘displayed’’ (apparently in an ‘‘ornamental’’ sense), whether the mer-

chandise has ‘‘entertainment’’ value, and similar issues. The Government’s briefs do noth-

ing whatsoever to develop those arguments in any coherent fashion, however; and, indeed,

the Government often seems to be using concepts interchangeably. Such scattered, casual,

offhand references cannot give rise to an obligation – on the part of either opposing counsel

or the Court – to flesh out and then respond to a party’s barest intimations.

In the interest of completeness, the Government’s briefs have been ‘‘mined’’ for such inti-

mations, which are collected and addressed in summary fashion here. However, it is far

from clear that the Government’s briefs filed in this forum should suffice to preserve its

rights. Any attempt to raise such issues on appeal should meet with skepticism, and merits

very close scrutiny.

As an initial matter, both parties devote ink to whether merchandise classifiable as ‘‘fes-

tive articles’’ under heading 9505 must be both ‘‘used’’ and ‘‘displayed’’ in connection with a

‘‘festive’’ occasion. The Government repeatedly insists that merchandise must be ‘‘used and

displayed.’’ See, e.g., Def.’s Brief at 19 (asserting that ‘‘Midwest and Smith involved articles

which were themselves displayed and used’’); Def.’s Reply Brief at 2 (asserting that ‘‘festive

articles’’ classification requires that ‘‘the article must be displayed and used’’ in connection

with ‘‘festive’’ occasion), 7–8 (same); Def.’s Supp. Brief at 2 (same). However, in Park B.

Smith, the Court of Appeals has spoken clearly and unequivocally to the contrary, explain-

ing that ‘‘festive article’’ classification ‘‘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.’’ Park B. Smith, 347 F.3d at 927 (emphasis added)

(citing Midwest of Cannon Falls, 122 F.3d at 1429); see also Pl.’s Reply Brief at 13 (noting

that Park B. Smith ‘‘states that festive items may be displayed or used during a festive oc-

casion’’).

In any event, contrary to the Government’s implications, there is – as a practical matter

– no apparent discernible, meaningful ‘‘bright line’’ distinction between ‘‘display’’ and ‘‘use.’’

In several places, the Government suggests that ‘‘festive articles’’ must be, in essence, ‘‘deco-

rations’’ – apparently reading the term ‘‘display’’ in an ‘‘ornamental’’ sense. See, e.g., Def.’s

Brief at 19 (asserting that ‘‘Midwest and Smith involved articles which were themselves

displayed and used as decorations’’) (second emphasis added); Def.’s Reply Brief at 5 (argu-

ing that Wilton bakeware cannot be classified as ‘‘festive articles’’ because it is not ‘‘decora-

tions’’); Def.’s Supp. Brief at 7 (arguing that bakeware cannot be classified as ‘‘festive ar-

ticles’’ because a ‘‘baking pan is not itself used as decoration’’). But see Pl.’s Reply Brief at 13

n.6 (disputing Government’s contention that ‘‘display’’ means ‘‘ornamental’’ display, and ar-

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used to bake cakes in various special shapes. In the past, however,

the Court of Appeals has twice squarely rejected the Government’s

guing, inter alia, that ‘‘[e]ven if both use and display were required ...,thedisplaymaybe

nothing more than that which is incidental to the use of the article. It need not be a decora-

tiveuse...’’).

The Government claims that there is no evidence that Wilton’s bakeware is used as

‘‘decorations.’’ See, e.g., Def.’s Brief at 20 (asserting that bakeware ‘‘is not used as decora-

tions,’’ and that there is ‘‘absolutely no evidence that anyone would decorate a home with

baking pans, cookie cutters, cake message presses, or any other cooking tools during any

holiday’’); Def.’s Supp. Brief at 7 (asserting that ‘‘the baking pan is not itself used as decora-

tion and there is absolutely no evidence that such articles are displayed’’).

The Government is simply wrong on the record. Contrary to the Government’s claims,

text from Wilton’s Yearbook catalog and other promotional literature filed in this action em-

phasizes a range of ‘‘decorative’’ uses for Wilton’s bakeware, cookie cutters, and cookie

stamps. Thus, for example, the description of the Jolly Shapes Cookie Cutter Set (item

# 2308–1201) emphasizes: ‘‘Our metal [cookie] cutters look great with their bright colors

and glossy enamel finish. Four shapes are perfect for hanging on the [Christmas] tree until

your next cookie-baking bash.’’ (Emphasis added.) To the same end is the description of the

Spooky Shapes Cookie Cutter Set (item # 2308–1200): ‘‘Our metal [cookie] cutters will look

great in your kitchen with their glossy enamel finish. Four favorite shapes are perfect for

hanging on the wall until your next cookie baking bash.’’ (Emphasis added.) Similarly, the

description of the Star Nesting Perimeter Cutter Set (item # 2304–111) advertises: ‘‘[R]e-

member all the fun ways to use our [cookie] cutters – for bread shapes, stencils, sun catch-

ers, and so much more.’’ (Emphasis added.) And the description of the Gingerbread Boy

Cookie Mold (item # 2306–1019) emphasizes: ‘‘Our finely detailed mold helps you and the

family create beautifully-sculpted cookies with ease....Moldsaregreat to hang for a festive

decoration all season long.’’ (Emphasis added.) See Pl.’s Exhs., passim. Moreover, it is a rea-

sonably safe assumption that additional evidence would have been proffered on this point

had the Government briefed the matter adequately, so as to put Wilton on proper notice.

Any complaints by the Government about the state of the evidentiary record must therefore

fall on deaf ears.

Not only is the Government wrong about the record evidence – but, more importantly,

the Government is wrong on the law. There is simply nothing in the Explanatory Notes to

heading 9505 or in the HTSUS itself – just as there is nothing in either Midwest of Cannon

Falls or Park B. Smith – that requires that ‘‘festive articles’’ must, by definition, be ‘‘decora-

tive’’ (at least in the sense that the Government appears to be using that term). The Ex-

planatory Notes plainly envision classification under heading 9505 of not only ‘‘[d]ecora-

tions such as festoons, garlands ...,’’butalsonon-decorative items as well, including – but

not limited to – other (non-decorative) types of ‘‘[a]rticles traditionally used at Christmas

festivities.’’ See Explanatory Notes, Heading 9505, HTSUS. Indeed, the Explanatory Notes

specifically list ‘‘Christmas crackers’’ as one examplar of ‘‘festive articles,’’ with no implica-

tion that the crackers must be used to ‘‘decorate’’ a household or otherwise ‘‘displayed’’ be-

fore being pulled. See Explanatory Notes, Heading 9505, HTSUS (providing for classifica-

tion of ‘‘Christmas crackers’’ as ‘‘festive articles’’ under heading 9505); Wikipedia, Christmas

cracker, http://en.wikipedia.org/wiki/Christmas_cracker (as of June 8, 2007) (explaining

that Christmas crackers ‘‘are an integral part of Christmas celebrations in the United King-

dom,’’ among other places; ‘‘A cracker consists of a cardboard tube wrapped in a brightly

decorated twist of paper ...[whichis]pulledbytwopeople,and, much in the manner of a

wishbone,...splitsunevenly.Thesplitisaccompanied by a small bang produced by the ef-

fect of friction on a chemically impregnated card strip (similar to that used in a cap

gun)...Typically the [] contents [of the Christmas cracker] are a coloured paper hat or

crown; a small toy or other trinket and a motto, a joke or piece of trivia on a small strip of

paper. Crackers are often pulled after Christmas dinner or at parties.’’)

The Government also makes the vague claim that ‘‘the use of cooking tools to bake cakes

or make cookies is not the kind of ‘use’ contemplated by the courts in Midwest and Smith.’’

See Def.’s Reply Brief at 8. But the Government wholly fails to elucidate that conclusory as-

sertion, except to argue that ‘‘[t]he cooking tools imported by Wilton are clearly used in

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claim that only ‘‘non-utilitarian’’ merchandise is classifiable as ‘‘fes-

tive articles’’ under heading 9505. See Midwest of Cannon Falls, 122

preparation for, not in celebration [of], nor for entertainment on a joyous holiday.’’ Id. (em-

phasis added).

That argument intimates the existence of some stringent temporal restriction on ‘‘festive

articles’’ that finds no basis in the HTSUS, the Explanatory Notes, or the law of Midwest of

Cannon Falls and Park B. Smith. For example, it is clear from the subheadings of heading

9505 of the HTSUS and from the existing caselaw that ‘‘Christmas ornaments’’ are classifi-

able as ‘‘festive articles’’ under heading 9505. See Subheading 9505.10, HTSUS (providing

for classification of ‘‘Christmas ornaments’’); Midwest of Cannon Falls, 122 F.3d at 1427

(discussing classification of ‘‘Christmas ornaments’’ under heading 9505). There is no re-

quirement that such ornaments be put out only on Christmas Eve and, in turn, returned to

storage or disposed of on December 26. So too, it would defy logic and common sense to rule

that – to the extent that making Christmas cookies is typically an activity that families en-

joy in the days leading up to the actual holiday – Christmas cookie cutters are per se ex-

cluded from the scope of heading 9505 because they are used ‘‘in preparation for’’ the actual

holiday. The distinction that the Government seeks to draw is much too simplistic.

Indeed, in questions sent to the parties in preparation for oral argument, the Court spe-

cifically inquired: ‘‘In fact, isn’t the use of Christmas cookie cutters to make Christmas ‘cut

out’ cookies a holiday tradition? Isn’t the process of making Christmas cookies itself thus a

part of the holiday festivities, rather than mere preparation for the festivities?’’ The Govern-

ment never directly responded to that point.

Whether treated as merchandise used ‘‘in preparation for,’’ used ‘‘in celebration of,’’ or

used ‘‘for entertainment on’’ a holiday, the Government has failed to explain how the tempo-

ral use of Wilton’s Christmas cookie cutters, for example, differs fundamentally from that of

‘‘festive articles’’ such as Christmas ornaments (see subheading 9505.10, HTSUS), nativity

scenes (see subheading 9505.10.30, HTSUS), festive table linens (see Park B. Smith), and

nutcrackers (see Midwest of Cannon Falls) – all of which are typically used and/or displayed

‘‘in preparation for’’ (that is, in the days leading up to) Christmas itself.

Finally, the Government suggests that Wilton’s bakeware, cookie cutters, and cookie

stamps cannot be classified as ‘‘festive articles’’ because they lack ‘‘entertainment’’ value.

See, e.g., Def.’s Reply Brief at 8 (arguing that merchandise at issue is not used ‘‘in celebra-

tion’’ of or ‘‘for entertainment on a joyous holiday’’); Def.’s Supp. Brief at 6 (asserting that

merchandise at issue does not ‘‘share the toy-like amusement qualities of the articles ex-

pressly provided for in subheading 9505.90’’). The Court of Appeals met this argument

head-on in Midwest of Cannon Falls, and made short work of it. See generally Midwest of

Cannon Falls, 122 F.3d at 1427 (rejecting Government’s argument that merchandise in that

action was not classifiable under heading 9505 because it was not used for ‘‘entertainment,’’

or for ‘‘amusement or merriment’’).

In Midwest of Cannon Falls, the Court of Appeals noted that it was ‘‘somewhat unclear

what the government means by articles for ‘entertainment, amusement or merriment’ be-

cause the imported items (e.g., various Santa figures) are at least as ‘entertaining’ as

Christmas tree ornaments that the government admits belong under heading 9505.’’ Id. The

Court of Appeals emphasized that ‘‘even under the government’s own argument, heading

9505 covers a range of products spanning Christmas tree ornaments to nativity scenes.’’ Id.

The Court of Appeals concluded that the merchandise at issue in that action was ‘‘at least

as ‘entertaining’ as the nativity scenes’’ expressly covered by one of the subheadings of

heading 9505. Id. In sum, even if ‘‘festive articles’’ must have ‘‘entertainment’’ value (as the

Government continues to insist), the ‘‘entertainment’’ threshold is nowhere near as high as

the Government suggests.

If articles such as nativity scenes and the festive table linens of Park B. Smith are

deemed to provide ‘‘entertainment,’’ there can be no serious dispute as to the ‘‘entertain-

ment’’ value of Christmas cookie cutters and other similar bakeware. As discussed in the

course of oral argument in this matter, for example, the making of Christmas cookies is a

cherished holiday rite in many U.S. households, for both the young and the young-at heart

– a tradition steeped in warm memories of Christmases past, and a tradition passed down

from one generation to the next in kitchens all across the country.

The Government’s folly here may lie, at least in part, in its analytical proclivity to

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F.3d at 1429; Park B. Smith, 347 F.3d at 927. The Government nev-

ertheless resurrects the argument once again here, but with a new

twist.

See generally Def.’s Brief at 21–25; Def.’s Reply Brief at 4–6;

Def.’s Supp. Brief at 11–14. But see Pl.’s Reply Brief at 4–11; Pl.’s

Supp. Reply Brief at 3–4.

conflate the ultimate product of the baking process (cookies or other baked goods) with the

baking process itself – that is, the ‘‘use’’ of the merchandise actually at issue here. See, e.g.,

Def.’s Brief at 20 (arguing that ‘‘cake pans, cookie cutters, presses and other cooking tools

are not themselves used to celebrate any holiday,’’ and that it is the cookies and the cakes

that are so used).

As Wilton’s Yearbook catalog aptly observes, however, at least in the eyes of children, the

making of cookies – that is, the use of cookie cutters and cookie stamps – is as much fun as

the eating. See Pl.’s Exh. (describing Star Nesting Perimeter Cutter Set (item # 2304–111) –

‘‘With our shaped [cookie] cutters, the making is as much fun as the eating! Child-safe de-

sign means kids can have a great time helping.’’) (emphases added); Pl.’s Protest at 14 (not-

ing that ‘‘[b]aking holiday cookies’’ is integral part of Christmas festivities); see also Wilton

Indus. Canada Ltd. v. Comm’r of Canada Customs & Revenue Agency, AP–2001–088 (CITT

Nov. 8, 2002) (‘‘Wilton-Canada II’’) (summarizing witness testimony that ‘‘the preparation

of...baked goods is an integral part of the Christmas holidays’’). In this sense, the active,

participatory – and often social – nature of the baking process associated with special occa-

sions (a phenomenon which the Government has steadfastly ignored) gives Wilton’s

bakeware an ‘‘entertainment’’ value that exceeds that of much other ‘‘festive’’ merchandise –

such as Christmas ornaments, nativity scenes, festive table linens and such – which, by

their very nature, help ‘‘celebrate’’ an occasion in a much more passive manner. See also

Pl.’s Exhs. (describing Gingerbread Boy Cookie Mold (item # 2306–1019), emphasizing often

festive, social nature of baking process itself – ‘‘Our finely detailed mold helps you and the

family create beautifully-sculpted cookies with ease’’) (emphasis added); id. (describing

Jolly Shapes Cookie Cutter Set (item # 2308–1201), emphasizing often festive, social nature

of baking process itself – ‘‘Four shapes are perfect for hanging on the [Christmas] tree until

your next cookie-baking bash.’’) (emphasis added); id. (describing Spooky Shapes Cookie

Cutter Set (item # 2308–1200), emphasizing often festive, social nature of baking process

itself – ‘‘Four favorite shapes are perfect for hanging on the wall until your next cookie bak-

ing bash.’’) (emphasis added).

In their briefs, both parties consistently failed to clearly indicate which of their argu-

ments relate to which items of Wilton’s merchandise. The parties were pressed several

times to clarify their positions. For example, in questions provided to the parties in prepa-

ration for oral argument, the Court specifically inquired: ‘‘Is it crystal clear from the parties’

papers, as to each and every item remaining at issue in this action, which arguments apply

to which items? Is it crystal clear from the parties’ papers, as to each and every item re-

maining at issue in this action, exactly which classification the parties assert?’’ (First em-

phasis added.) The Court raised the matter with the parties again, in the course of oral ar-

gument.

Although Wilton clarified its positions (to some extent) in its supplemental submissions,

the Government never did so. As a result, as a general matter, it is extremely difficult – and

often impossible – to definitively discern from the Government’s briefs which of its argu-

ments relates to which items of the merchandise at issue. Under the circumstances, it is

reasonable to construe any ambiguities against the Government.

The only items that the Government expressly refers to in making the argument under

discussion here – that is, the argument that ‘‘utilitarian’’ or ‘‘functional’’ items are not clas-

sifiable under heading 9505 – are ‘‘baking pans, cookie cutters and other cooking tools.’’ See

Def.’s Brief at 25. ‘‘Cooking tools’’ is a reference to Wilton’s tree former sets, which are no

longer at issue in this action. See Pl.’s Brief at 6–7 (dividing merchandise into general cat-

egories for purposes of discussion, and referring to ‘‘Cake Presses and Cooking Tools’’). In

any event, whether the Government’s argument relates only to Wilton’s bakeware and

cookie cutters, or to all of the merchandise still at issue, the result is the same.

In briefing this issue, neither party has relied in any way on Customs’ recent action

seeking to limit the application of Park B. Smith to the entries before the courts in that

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Invoking Jewelpak, the Government asserts that – in determining

the proper scope of heading 9505 – the court should consider the Ex-

planatory Notes to heading 9505, which were amended in 2003 to ex-

pressly exclude from the scope of that heading articles that ‘‘have a

utilitarian function,’’ such as ‘‘kitchenware.’’ See Def.’s Brief at 21

(citing Jewelpak Corp. v. United States, 20 CIT 1402, 950 F. Supp.

343 (1996), aff’d, 297 F.3d 1326, 1336 (Fed. Cir. 2002)); Def.’s Reply

Brief at 5–6; Explanatory Notes, Heading 9505, HTSUS, at xx–

9505–1 (2007) (reflecting 2003 amendment).

The plaintiff in Jewelpak complained, among other things, that

Customs had changed the classification of the jewelry boxes there at

issue based upon an amendment to the applicable Explanatory

Notes. Jewelpak, 20 CIT at 1402, 950 F. Supp. at 345. The plaintiff

maintained that, absent action by the International Trade Commis-

sion and the President to formally amend the HTSUS, Customs’ ac-

tion was improper. Id.

Finding that Customs was entitled to consider the amended Ex-

planatory Notes, this court noted that ‘‘Congress recognized that the

Explanatory Notes would be occasionally modified, and could still be

‘consulted for guidance.’ ’’ Jewelpak, 20 CIT at 1411, 950 F. Supp. at

351. The Court of Appeals affirmed: ‘‘[D]espite Jewelpak’s protesta-

tion, the law is clear that it was wholly appropriate to reference the

Amended Explanatory Note...tohelpdefinetheproper scope of the

tariff term.’’ Jewelpak, 297 F.3d at 1336 (citations omitted).

But Jewelpak is inapposite. As Wilton emphasizes, the amend-

ment to the Explanatory Notes at issue in Jewelpak came into force

several years before the merchandise at issue in that case was im-

ported. Jewelpak thus had no occasion to address the issue of

‘‘retroactivity’’ (for lack of a better word) that is presented in this

case. See Pl.’s Reply Brief at 4–5; Jewelpak, 297 F.3d at 1334 (em-

phasizing that, in that case, Customs’ revocation of its earlier rul-

ings was expressly ‘‘limited to...futureimportations; it did not ap-

ply retroactively to merchandise that already had been liquidated.’’).

In contrast, the amendment to the Explanatory Notes invoked by the

Government here was not enacted, and did not become effective, un-

case. See generally Limitation of the Application of the Decisions of the Court of Interna-

tional Trade and the Court of Appeals for the Federal Circuit in Park B. Smith v. United

States, 40 Cust. Bull. & Dec. No. 15 at 5 (April 5, 2006); Proposal to Limit the Decisions of

the Court of International Trade and the Court of Appeals for the Federal Circuit in Park B.

Smith v. United States, 39 Cust. Bull. & Dec. No. 27 at 33 (June 29, 2005).

The relevant section of the Explanatory Notes, as amended, reads:

The heading [9505] also excludes articles that contain a festive design, decoration, em-

blem or motif and have a utilitarian function, e.g., tableware, kitchenware, toilet ar-

ticles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet

linen, kitchen linen.

Explanatory Notes, Heading 9505, HTSUS, at xx–9505–1 (2007) (reflecting 2003 amend-

ment).

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til long after the merchandise at bar had been imported, and – in-

deed – several years after this action was filed.

The Government emphasizes that the amendment to the Explana-

tory Notes to heading 9505 was a ‘‘clarifying’’ amendment, and as-

serts that some countries were excluding ‘‘utilitarian’’ articles from

the scope of heading 9505 even before the Explanatory Notes were

amended. See Def.’s Supp. Brief at 11–14; see also Def.’s Brief at 23;

Def.’s Reply Brief at 5–6. The Government seeks to dismiss the issue

of retroactivity as an ‘‘irrelevant factual distinction.’’ See Def.’s Reply

Brief at 5. But that is much too cavalier.

Even apart from the general legal principles governing the retro-

active application of laws, however, there are reliance interests at

stake here. Cf. Jewelpak, 297 F.3d at 1340 (dissent) (noting that

‘‘[t]he international trade community premises its actions and deci-

sions on the expectation that Customs will conform to... estab-

lished and uniform practices,’’ and that ‘‘[t]he reliance and fairness

interests of the international importing community are implicated

by the practices in which Customs uniformly engages’’ – ‘‘regardless

of whether the Secretary formally deems Customs’ practice estab-

lished and uniform.’’).

Under the circumstances of this case, in importing the merchan-

dise at issue, Wilton was entitled to rely on the existing state of the

law of this land. Wilton was entitled to rely on the fact that, in Mid-

west of Cannon Falls, the Court of Appeals flatly and unambiguously

rejected the argument that ‘‘utilitarian’’ goods could not be classified

as ‘‘festive articles’’ under heading 9505. See Michael Simon Design,

Inc. v. United States, 30 CIT

, , 452 F. Supp. 2d 1316, 1323–24

(2006), appeal docketed, No. 2007–1028 (Fed. Cir. Oct. 26, 2006) (re-

jecting same argument by the Government; noting that ‘‘the

amended EN 95.05 contradicts the Federal Circuit’s current inter-

pretation of the scope of heading,’’ that Midwest of Cannon Falls and

Park B. Smith ‘‘held, without qualification, that the term ‘festive ar-

ticles’ includes utilitarian articles,’’ and that ‘‘the Federal Circuit’s

current interpretation of the meaning of the term ‘festive articles’

controls’’) (footnote and citation omitted).

See also Decolin Inc. v. President of Canada Border Services Agency, AP–2004–011

(CITT Sept. 13, 2005) (declining to apply 2003 amendment to the Explanatory Notes to

heading 9505 to merchandise imported in 2001; finding that ‘‘it would be unfair to give ret-

roactive effect to the August 2003 amendment,’’ because the goods were imported ‘‘with a

reasonable expectation that they would be classified in accordance with the terms of the

Customs Tariff, including the relevant Explanatory Notes, at the time of importation’’; rul-

ing that retroactive application of the amended Explanatory Notes would be ‘‘contrary to

natural justice and principles of fairness’’).

Of course, as both parties agree, the decisions of foreign tribunals are not binding on the

courts of the United States. See Pl.’s Brief at 17; Pl.’s Reply Brief at 3, 12 (citing Medtronic,

Inc. v. Daig Corp., 789 F.2d 903, 908 (Fed. Cir. 1986) (noting, in patent case, that decision of

German tribunal does not bind U.S. courts)); Def.’s Brief at 27; Def.’s Reply Brief at 6. Cf.

Cummins Inc. v. United States, 454 F.3d 1361, 1366 (Fed. Cir. 2006). Such decisions are,

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Contrary to the Government’s assertions, the amendment to the

Explanatory Notes to heading 9505 excluding ‘‘utilitarian’’ articles

has no relevance here. This action is controlled by the Court of Ap-

peals’ decision in Midwest of Cannon Falls, as amplified by Park B.

Smith. See Midwest of Cannon Falls, 122 F.3d 1423; Park B. Smith,

347 F.3d 922.

That said, it is difficult not to be somewhat sympathetic to the

frustration the Government has expressed. As the Government prop-

erly notes, the 2003 amendment to the Explanatory Notes (and other

recent developments) suggest that the law of ‘‘festive articles’’ – in

the U.S., and elsewhere – has drifted far from the HTSUS drafters’

intent. Although it will have to await another case and another day,

it seems a virtual certainty that the recent developments cited by

the Government will result in a sea change in the law of ‘‘festive ar-

ticles.’’

In the meantime, however, as discussed both above and below, the

Government has identified no reasoned, principled basis for distin-

guishing the merchandise at issue in this action from that at issue in

Midwest of Cannon Falls, Park B. Smith, and Russ Berrie. Whatever

significance those decisions may hold for the classification of ‘‘festive

articles’’ in the future, they lead directly – and largely inexorably –

to the result reached here today.

B. The Government’s ‘‘One Step Removed’’ Argument

In addition to its relatively straightforward claim that the ‘‘utili-

tarian’’ or ‘‘functional’’ nature of the subject merchandise precludes

however, entitled to ‘‘respectful consideration,’’ and may have persuasive power. Id. And

there is merit in promoting uniformity and predictability in international trade and com-

merce, where possible. See generally Cummins,29CIT

, , , 377 F. Supp. 2d

1365, 1368–69, 1375–76 (2005), aff’d, 454 F.3d 1361.

Wilton apparently contends that the 2003 amendment to the Explanatory Notes is of

no effect whatsoever absent action by the Court of Appeals to expressly rescind Midwest of

Cannon Falls and Park B. Smith. Wilton boldly asserts:

Any decision which seeks to abandon the Federal Circuit’s definition of ‘‘festive articles,’’

as enunciated in Midwest of Cannon Falls and Park B. Smith ...mustcome from the

Federal Circuit itself, and not from [the Court of International Trade]. Certainly, the

adoption of the amended Explanatory Note cannot be said in any way to work a revoca-

tion or overruling of those governing precedents.

Pl.’s Reply Brief at 7. Although it is not necessary to reach the point here, Wilton’s position

would seem to be extreme.

Because Midwest of Cannon Falls and Park B. Smith are predicated on the HTSUS (in-

cluding the Explanatory Notes) pre-amendment, it cannot be said that the Court of Appeals

has spoken on the effect of the Explanatory Notes, as amended. Thus, the outcome on this

issue might very well have been quite different if the chronology of events in this case had

differed vis-a-vis the importation of the goods, the adoption of the amendment to the Ex-

planatory Notes, and the entry into force of that amendment. Cf. Michael Simon Design,30

CIT at

n.4, 452 F. Supp. 2d at 1324 n.4 (explaining how ‘‘the court’s task would be more

difficult had the timing been different’’ in that case).

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its classification as ‘‘festive articles,’’ the Government advances a

second, related argument, which – although ultimately unavailing –

is both novel and more nuanced.

The Government points to the decision of the Canadian Interna-

tional Trade Tribunal (‘‘CITT’’) in Wilton-Canada II, which ruled

that certain Christmas-themed bakeware was not classifiable under

heading 9505. See Wilton Indus. Canada Ltd. v. Comm’r of Canada

Customs & Revenue Agency, AP–2001–088 (CITT Nov. 8, 2002)

(‘‘Wilton-Canada II’’). According to the reasoning of Wilton-Canada

II, the baking pans there at issue were not – in and of themselves –

festive articles, but instead were ‘‘used to make, or [were] one step

removed from, the festive article, that is, the Christmas cookie or

cake.’’ See Def.’s Brief at 27–28 (quoting Wilton-Canada II).

At first blush, the rationale of Wilton-Canada II has both visceral

and rhetorical appeal. But, in fact, that rationale is woven from

three strands of analysis (an analogy, an interpretation of U.S. law,

and a public policy concern), none of which withstands close scru-

tiny.

In Wilton-Canada II, the CITT emphasized that the Explanatory

Notes to heading 9505 list ‘‘articles that are actually used during the

[Christmas] festivities, e.g., Christmas crackers and Christmas

stockings.’’ See Wilton-Canada II, AP–2001–088 (CITT Nov. 8, 2002).

The CITT further noted that, in the Explanatory Notes, ‘‘[o]ne does

not find the articles used to make such articles, for example, the pat-

terns used to make the Christmas stockings.’’ Id. The CITT con-

cluded: ‘‘Similarly, while cakes [in festive motifs] are covered [as ‘‘fes-

tive articles’’ under heading 9505],

the goods used to produce them

– cake and cookie pans – are not mentioned.’’ Id. (footnote added).

But the CITT’s analogy in Wilton-Canada II is strained at best.

Patterns used to make Christmas stockings are fundamentally dif-

ferent from festive-themed pans used to make Christmas baked

goods, in several respects. Perhaps most significantly, sewing pat-

terns can be used to make Christmas stockings year-round. While it

would be aberrant to hang Christmas stockings on the mantle other

than at Christmas time, it would not be aberrant to sew such stock-

See also Def.’s Brief at 19–20; Def.’s Reply Brief at 6–8; Def.’s Response to Pl.’s State-

ment of Facts ¶¶ 8–10.

As noted above, the Government has failed to specify clearly which of its various argu-

ments relate to which items of Wilton’s merchandise. See n.14, supra. It appears that this

argument – that certain merchandise is at least ‘‘one step removed’’ from ‘‘festive articles’’ –

relates only to the cake press sets, and to the cookie cutters, cookie stamps, and bakeware.

See Def.’s Brief at 19–10, 27–28; Def.’s Reply Brief at 6–7; Def.’s Response to Pl.’s Statement

of Facts ¶¶ 8–10. The argument thus has no apparent application to the wedding cake sepa-

rator plates, pillars, columns, and plate legs, or to the Cherub Place Card Holders.

Although the CITT states in its decision that baked goods in festive motifs are classifi-

able under heading 9505, the Government here indicated – both in briefing, and in the

course of oral argument – that it does not necessarily agree. See, e.g., Def.’s Brief at 19–20.

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ings at other times of the year, in anticipation of (and in preparation

for) the Christmas season. Thus, it would not be aberrant to use pat-

terns for Christmas stocking year-round. See generally Park B.

Smith, Ltd. v. United States, 347 F.3d 922, 929 (Fed. Cir. 2003) (ar-

ticle is classifiable under heading 9505 only if its use at times other

than festive occasion would be ‘‘aberrant’’).

In contrast, Christmas-themed cookies and cakes generally are

baked only during the Christmas season. Thus, the distinctive,

festive-shaped bakeware used to make such treats is used only dur-

ing the Christmas season; and its use at any other time of the year

would be ‘‘aberrant.’’ See id. Indeed, as the record evidence in Wilton-

Canada II indicated, ‘‘the preparation of...baked goods is an inte-

gral part of the Christmas holidays.’’ See Wilton-Canada II, AP–

2001–088 (CITT Nov. 8, 2002).

Just as the analogy drawn in Wilton-Canada II was (to indulge a

pun) somewhat ‘‘half-baked,’’ so too the Canadian tribunal misread

the U.S. caselaw on which it relied in reaching its decision. The

CITT wrote:

Although it is clearly not bound by U.S. decisions, the Tribunal

notes that, in Midwest and Park Smith, it was required that

the goods be ‘‘displayed and used’’ (emphasis added) only dur-

ing the festive season. The goods in issue [in the case before the

CITT] are used, it could be argued, at Christmas time, but they

are certainly not displayed. The appellant has not cited a case

in which the goods were not displayed, but nonetheless in-

cluded in heading No. 95.05.

Wilton-Canada II, AP–2001–088 (CITT Nov. 8, 2002) (emphasis in

the original) (citing Midwest of Cannon Falls, 122 F.3d 1423; Park B.

Smith, Ltd. v. United States, 25 CIT 506 (2001)).

Contrary to the premise of Wilton-Canada II, however, nothing in

the U.S. caselaw to date limits ‘‘festive article’’ classification to only

that themed merchandise which is ‘‘displayed’’ on festive occasions.

For example, in Park B. Smith, the Court of Appeals observed:

In Midwest of Cannon Falls the court held that classification as

a ‘‘festive article’’ under Chapter 95 requires that the article

satisfy two criteria: (1) it must be closely associated with a fes-

tive occasion and (2) the article is used or displayed principally

during that festive occasion.

In the context of a linguistic analysis comparing the French and English texts of the

language of heading 9505 and the relevant Explanatory Notes, the Wilton-Canada II tribu-

nal opined that – to be ‘‘festive’’ – merchandise must be used ‘‘during the Christmas festivi-

ties, not before them.’’ Wilton-Canada II, AP–2001–088 (CITT Nov. 8, 2002). Inherent in the

CITT’s decision is an assumption that Christmas bakeware is used before (that is, in prepa-

ration for) the Christmas festivities, and is not used as part of those festivities. As discussed

above, however, that line of reasoning finds little basis in law or fact. See n.13, supra.

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Park B. Smith, 347 F.3d at 927 (emphasis added).

In short, to the

extent that the CITT’s decision in Wilton-Canada II read U.S.

caselaw to require that ‘‘festive articles’’ be ‘‘displayed’’ to justify clas-

sification under heading 9505, that decision was in error.

Finally, in the context of a linguistic analysis comparing the

French and English texts of the language of heading 9505, the CITT

voiced a public policy concern, noting that it was ‘‘not convinced that

Parliament meant that everything used in the preparation toward

Christmas festivities should be classified in heading No. 95.05 as a

festive article.’’ See Wilton-Canada II, AP–2001–088 (CITT Nov. 8,

2002) (emphasis added).

At least under the law of this country, however, any such concern

would be unwarranted. Whether merchandise is ‘‘used’’ or ‘‘dis-

played’’ (or both), U.S. caselaw permits its classification under head-

ing 9505 only if its principal ‘‘use’’ or ‘‘display’’ is limited to a festive

occasion, such that its ‘‘use’’ or ‘‘display’’ at other times of the year

would be ‘‘aberrant.’’ See Russ Berrie, 381 F.3d at 1336, 1338; Park

B. Smith, 347 F.3d at 927, 929; Midwest of Cannon Falls, 122 F.3d at

1429. That ‘‘aberrant use’’ test serves as a discriminating filter,

screening out the vast majority of goods that are – in the words of

the CITT – ‘‘used in the preparation toward [a festive occasion],’’

Accord Park B. Smith, 347 F.3d at 927 (referring in two other places to ‘‘use’’ and to

how item is ‘‘used’’ – not ‘‘displayed’’; no references to ‘‘display’’), 929 (four references to

‘‘use’’; no references to ‘‘display’’); Russ Berrie, 381 F.3d at 1336 (referring to merchandise

‘‘used or displayed’’) (emphasis added); Id. at 1336 (discussing ‘‘symbols . . . used princi-

pally’’) (emphasis added), 1338 (referring to articles ‘‘used or displayed’’) (emphasis added).

See generally n.13, supra (discussing, inter alia, meaning of ‘‘display’’ in context of

classification of merchandise as ‘‘festive articles’’ under heading 9505).

Contrary to the implication of the Government here and the CITT in Wilton-Canada II,

there simply is no intimation in Park B. Smith that the holiday-themed napkins at issue in

that case had to be in view, full-time, for any specific minimum number of hours or days, or

seen by some certain minimum number of people, to have been ‘‘displayed’’ and thus eligible

for classification as ‘‘festive articles’’ under heading 9505. See Park B. Smith, 347 F.3d at

926. Similarly, Christmas- and Halloween-themed earrings and other jewelry were held to

be prima facie classifiable as ‘‘festive articles’’ in Russ Berrie . See Russ Berrie, 381 F.3d at

1335. But that jewelry could not be said to be ‘‘displayed’’ in the same sense that a jack-o-

lantern centerpiece or Christmas tree ornament (or even a festive table runner) might be

‘‘displayed.’’ For example, it is unlikely in the extreme that someone would wear a Christ-

mas lapel pin 24 hours a day, seven days a week throughout the Christmas season. Nor was

there any indication in Russ Berrie that eligibility for classification as ‘‘festive articles’’

turned on whether the jewelry was worn in public. See also Michael Simon Design,30CIT

, 452 F. Supp. 2d at 1324 (sweaters featuring Christmas and Halloween motifs).

In short, there is nothing in either Park B. Smith or Russ Berrie to suggest that Christ-

mas cookie cutters or other festive bakeware cannot be classified as ‘‘festive articles’’ under

heading 9505 simply because they might be used only by a mother and child for a few hours

each holiday season in the comfort, warmth, and privacy of the kitchen of the family home.

Thus, for example, just as the sewing patterns used to produce Christmas stockings

would not be classifiable under heading 9505 because – as discussed above – the use of the

patterns year-round would not be ‘‘aberrant,’’ so too the sewing machines used to make the

Christmas stockings would not be classifiable under heading 9505 for the same reason; nor

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and precluding the classification of such goods as ‘‘festive articles’’

under heading 9505.

In sum, for all these reasons, the Government’s reliance on Wilton-

Canada II in this case is misplaced. Contrary to the Government’s

implication and Wilton-Canada II, festive bakeware is not categori-

cally and by definition ‘‘one step removed’’ from ‘‘festive articles’’ clas-

sifiable under heading 9505 – at least not under the law of Midwest

of Cannon Falls and Park B. Smith.

C. ‘‘Festive’’ Occasions Within the Scope of Heading 9505

According to Wilton, much of the merchandise at issue is associ-

ated not with traditional holidays such as Halloween, Christmas, or

Valentine’s Day, but instead with what Wilton terms ‘‘private festive

celebrations’’ – special occasions such as birthdays, weddings, anni-

versaries, and graduations. The Government maintains that such

goods are not prima facie classifiable as ‘‘festive articles,’’ because –

according to the Government – only recognized ‘‘holidays’’ are festive

occasions within the meaning of heading 9505.

See generally Def.’s

Brief at 18–19, 24–25; Def.’s Reply Brief at 3, 5; Def.’s Supp. Brief at

2–3 (asserting that ‘‘[n]either Midwest, Smith, Russ Berrie, Rubie’s,

nor any other court action involving classification within Heading

9505 and which was the subject of a decision of this Court or the

Federal Circuit involved the classification of wedding, birthday, an-

niversary or any other celebratory event not related to a recognized

holiday’’).

The Government insists that the ship has already sailed on this is-

sue – that is, that the Court of Appeals has previously expressly

ruled that heading 9505 covers only merchandise associated with

would templates and machinery used to produce Christmas tree decorations, or other simi-

lar festive articles.

While it may be that such sewing patterns, sewing machines, and similar templates and

machinery are – in the words of Wilton-Canada II – ‘‘one step removed’’ from ‘‘festive ar-

ticles’’ classifiable under heading 9505, the bakeware here at issue is not (at least to the ex-

tent that its use at other times of the year would be ‘‘aberrant’’).

As footnote 14 above explains, the Government has failed to clearly indicate which of

its various arguments relate to which items of Wilton’s merchandise. It appears that this

argument – that is, the argument that so-called ‘‘private festive celebrations’’ are not ‘‘fes-

tive’’ occasions for purposes of heading 9505 – relates to the wedding cake separator plates,

pillars, columns, and plate legs; to the Cherub Place Card Holders (as wedding-related mer-

chandise); to the cake press sets (to the extent that the greetings and sentiments reflected

in the cake presses extend beyond recognized ‘‘holidays’’); and to the cookie cutters, cookie

stamps, and bakeware (other than Christmas, Valentine’s Day, or Halloween merchandise).

See Def.’s Brief at 18–19, 24–25; Def.’s Reply Brief at 3, 5; Def.’s Supp. Brief at 2–3.

The pages of Defendant’s supplemental brief are misnumbered. The brief has two

pages numbered 2, and two pages numbered 3. The pages are not duplicates, however; and,

with all pages (including the misnumbered pages), the text of the brief reads properly.

See also Def.’s Response to Pl.’s Statement of Facts ¶ 9 (denying ‘‘any inference that

birthday celebrations are festive occasions for purposes of classification of goods in Heading

9505’’). But see Pl.’s Brief at 19; Pl.’s Reply Brief at 15 n.7.

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specific recognized holidays. See generally Def.’s Brief at 19, 24–25;

Def.’s Reply Brief at 2, 5; Def.’s Supp. Brief at 3 (asserting that Court

of Appeals has limited ‘‘festive articles’’ under heading 9505 to ‘‘par-

ticular holiday occasion[s]’’). But, contrary to the Government’s as-

sertions, whether ‘‘private festive celebrations’’ such as birthdays,

weddings, anniversaries, and graduations are within the scope of

heading 9505 is an issue of first impression – at least in the courts of

the United States.

To be sure, as the Government emphasizes, the U.S. caselaw on

heading 9505 has often discussed festive occasions in terms of ‘‘holi-

days.’’ In Park B. Smith, for example, the Court of Appeals stated

that, to be classifiable as a ‘‘festive article,’’ Midwest of Cannon Falls

requires that merchandise ‘‘have a direct association with and lim-

ited use to a particular holiday occasion.’’ Park B. Smith, 347 F.3d at

929 (emphasis added).

However, the Government reads much too

much into that use of the word ‘‘holiday.’’

A careful review of Park B. Smith reveals that the Court of Ap-

peals there used ‘‘holiday’’ essentially as a shorthand reference, in

the context of drawing a distinction between merchandise that is

properly classifiable as ‘‘festive articles’’ under heading 9505 and

other merchandise that is merely ‘‘directed to general or seasonal

use.’’ See Park B. Smith, 347 F.3d at 929.

Indeed, all the merchan-

dise at issue in Park B. Smith and Midwest of Cannon Falls was as-

serted to be associated with particular recognized holidays – specifi-

cally, Valentine’s Day, Easter, the Fourth of July, Halloween,

Thanksgiving, and Christmas. None of the merchandise in either of

the cases was claimed to be associated with what Wilton here terms

‘‘private festive occasions.’’ Thus, to date the U.S. courts have had no

reason to speak to whether ‘‘private festive celebrations’’ such as

birthdays,weddings, anniversaries, and graduations are ‘‘festive’’ oc-

casions within the scope of heading 9505. The issue simply has never

presented itself.

As a threshold matter, the Government overlooks the salient

point: Presumably, had the drafters intended HTSUS heading 9505

to refer to ‘‘holiday’’ (rather than ‘‘festive’’) articles, they would have

See also Park B. Smith, 347 F.3d at 929 (referring to articles with a ‘‘holiday associa-

tion,’’ ‘‘articles with symbolic content associated with a particular recognized holiday ,’’ ar-

ticles that ‘‘are not associated with a particular festive holiday,’’ articles not directed to

‘‘specific holiday festivals,’’ ‘‘articles that might be associated with a particular holiday,’’

whether use of articles ‘‘at times other than holidays would not be aberrant,’’ and whether

articles are ‘‘directed to a specific festive holiday, and whether their use at times other than

that holiday would be aberrant’’) (emphases added).

Further, it appears that the Court of Appeals used ‘‘holiday’’ interchangeably with the

term ‘‘particular festival’’ – which is the term used in the Explanatory Notes to heading

9505. See Park B. Smith, 347 F.3d at 929 (‘‘The general autumnal colors or other seasonal

association do not invoke a particular festival.’’; ‘‘In view of these rulings, [Plaintiff’s] cross

appeal as to the third category must fail, for these three items are not associated with a

particular festival.’’) (emphases added).

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used that more specific term. But they chose not to do so. Nor is

there anything about the language that they did use that suggests

that the language was intended to have the restrictive meaning that

the Government seeks to ascribe to it.

Tariff terms – such as the term ‘‘festive’’ in the title of heading

9505 – are construed according to their common and commercial

meanings, which are presumed to be the same. Warner-Lambert Co.

v. United States, 407 F.3d 1207, 1209 (Fed. Cir. 2005). The meaning

of a tariff term may be discerned by consulting dictionaries and

other reliable sources of information. Id. (citing Mead Corp. v.

United States, 283 F.3d 1342, 1346 (Fed. Cir. 2002)). And, contrary to

the implication of the Government here, nothing in the definition of

the word ‘‘festive’’ suggests that the term is limited to civic and reli-

gious holidays, or that it excludes private celebrations such as birth-

days, weddings, anniversaries, and graduations.

According to the Encarta World English Dictionary (North Ameri-

can Edition), for example, ‘‘festive’’ is defined as ‘‘1. relating to cel-

ebration: relating to, suitable for, or typical of a feast, festival, or

holiday.’’ Encarta World English Dictionary (North Am. Edition)

(Microsoft 2007) (emphasis added). As the disjunctive ‘‘or’’ in that

definition makes clear, ‘‘festive’’ occasions are not limited to holidays.

Similarly, Webster’s Third New International Dictionary (Un-

abridged) defines the term as ‘‘1: of, belonging to, or befitting a feast,

festival, or other celebration,’’ and – as one illustration of the use of

the word – notes: ‘‘<raise the flag on public holidays and other ***

occasions > .’’ Webster’s Third New International Dictionary (Un-

abridged) (Merriam-Webster Inc. 2002) (emphasis added). Thus, that

definition too demonstrates that ‘‘festive occasions’’ are not limited to

‘‘public holidays.’’

Most dictionary definitions of ‘‘festive’’ do not even mention the

word ‘‘holiday.’’ For example, The Oxford English Dictionary defines

‘‘festive’’ as ‘‘1. Of or pertaining to a feast; such as befits a feast.’’ The

Oxford English Dictionary 853 (2d ed. 1989). The definition in

Webster’s New World Dictionary: Second College Edition is to the

same effect: ‘‘of, for, or suited to a feast or festival; merry; joyous.’’

Webster’s New World Dictionary: Second College Edition 517 (Will-

iam Collins 1979). Similarly, in Webster’s Ninth New Collegiate Dic-

tionary, ‘‘festive’’ is defined as ‘‘1: of, relating to, or suitable for a

feast or festival[;] 2: JOYFUL, GAY.’’ Webster’s Ninth New Collegiate

Dictionary 458 (Merriam-Webster Inc. 1983).

Even more to the point, at least one dictionary definition goes so

far as to specifically identify birthdays and weddings as ‘‘festive oc-

casions.’’ See, e.g., Gage Canadian Dictionary 574 (1997)

(defining

The Gage dictionary is the principal lexicographic authority used by the Canadian

Government Translation Bureau for purposes of official state business. See Wilton-Canada

II, AP–2001–088 (CITT Nov. 8, 2002).

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‘‘festive’’ as ‘‘for a feast, festival, or holiday; gay; joyous; merry: A

birthday or wedding is a festive occasion.’’) (quoted in Nicholson

Equip. Ltd. v. Deputy Minister of Nat’l Revenue, AP–96–080 (CITT

April 25, 1997) (‘‘Nicholson I’’); Nicholson Equip. Ltd. v. Deputy Min-

ister of Nat’l Revenue, AP–97–110 & AP–97–113 (CITT Sept. 2, 1998)

(‘‘Nicholson II’’); Wilton Indus. Canada Ltd. v. Canada (Comm’r of

Customs & Revenue Agency), AP–2001–081 (CITT Sept. 24, 2002)

(‘‘Wilton-Canada I’’)).

Further, although the question of the occasions within the scope of

heading 9505 is an issue of first impression here, that is not to say

that the matter has not been addressed by comparable tribunals and

other authorities elsewhere in the world. Defining the scope of head-

ing 9505 to include ‘‘private festive celebrations’’ such as birthdays,

weddings, anniversaries, and graduations is consistent with the law

and practice of other nations. Canadian customs and international

trade authorities, for example, have expressly recognized birthdays,

weddings, and anniversaries as ‘‘festive’’ occasions within the mean-

ing of heading 9505. See, e.g., Wilton I, AP–2001–081 (CITT Sept. 24,

2002) (birthdays); Nicholson II, AP–97–110 & AP–97–113 (CITT

Sept. 2, 1998) (birthdays, as well as ‘‘other joyous events in a child’s

life’’)

; Nicholson I, AP–96–080 (CITT April 25, 1997) (weddings and

anniversaries).

Indeed, neither party has here identified any coun-

In Nicholson II, the Canadian International Trade Tribunal held that the ‘‘festive occa-

sions’’ within the scope of heading 9505 include not only birthdays, but also – for example –

‘‘other joyous events in a child’s life,’’ such as ‘‘a child’s soccer party’’ or ‘‘a child obtaining a

good report card.’’ See Nicholson II, AP–97–110 & AP–97–113 (CITT Sept. 2, 1998).

There is, however, no need here to reach the issue of the outer limits of the non-holiday

events and occasions within the embrace of ‘‘festive occasions’’ for purposes of heading 9505.

All the non-holiday merchandise in this action is assertedly associated with either wed-

dings and anniversaries, or birthdays – occasions comfortably within any reasonable defini-

tion of a ‘‘festive occasion.’’

See also Def.’s Supp. Brief at 9 (conceding that ‘‘some countries may consider birthdays

to be ‘festive occasions’’’).

In addition to citing the Canadian decisions discussed above, both parties submitted for

the record in this action summaries of various customs rulings from the European Union,

drawn from the Binding Tariff Information (‘‘BTI’’) database. Like the Canadian decisions

above, a number of the BTIs evidence other countries’ treatment of non-‘‘holiday’’ special oc-

casions as ‘‘festive’’ occasions for purposes of heading 9505.

The BTIs submitted by both Wilton and the Government include GB [Great Britian]

105198189 (May 26, 2000) (multi-colored confetti spelling out ‘‘congratulations’’ classified

under heading 9505); DEB/2140/04–1 [Germany] (December 22, 2004) (garland spelling out

‘‘Happy Birthday’’ classified under heading 9505); and GB 106575082 (May 17, 2001) (edible

decorations for birthday cake classified under heading 9505). In addition, the Government

submitted BTI DEB/1232/04–1 (wooden miniature train candle holders, and numbers 1

through 6, for use in decorating birthday cakes, classified under heading 9505).

To be sure, as noted in section III.A above, U.S. courts are not bound even by the deci-

sions of foreign tribunals, much less those of the administrative authorities of those coun-

tries. Such decisions may, however, be entitled to ‘‘respectful consideration.’’ And there is

merit in promoting uniformity and predictability in international trade and commerce,

where possible. See generally Cummins,29CITat

, , 377 F. Supp. 2d at 1368–69,

1375–76, aff’d, 454 F.3d 1361, 1366.

100

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try that limits classification as ‘‘festive articles’’ under heading 9505

solely to merchandise associated with recognized ‘‘holidays.’’

The icing on the cake – so to speak – is Customs’ agreement to

classify certain merchandise at issue in this action as ‘‘festive ar-

ticles’’ under heading 9505. The vast majority of the merchandise

that is subject to the parties’ Stipulation is made up of white or clear

wedding cake separator plates, pillars, and columns marketed and

sold by Wilton as wedding-related merchandise, for use on the

elaborately-decorated, multi-tiered cakes typically served at wed-

ding and wedding anniversary celebrations. See Stipulation.

The

Government thus has already agreed that that merchandise – like

all the merchandise subject to the Stipulation – is classifiable as

‘‘festive articles’’ under heading 9505. And the Government has iden-

tified no recognized ‘‘holiday’’ with which the stipulated wedding

cake separator plates, pillars, and columns are ‘‘closely associated.’’

Nor can the Government do so.

Equally, if not even more, clear cut is the Government’s agreement

under the parties’ Stipulation to classify under heading 9505

Wilton’s ‘‘Black Graduation Caps Topper Set’’ (item # 2113–1801) –

which, as its name suggests, consists of two identical, miniature

black graduation caps (with the word ‘‘Graduation’’ in script across

the front of the caps), sold for use as ‘‘cake toppers’’ or ‘‘party favors.’’

Again, the Government has identified no recognized ‘‘holiday’’ with

which the ‘‘Black Graduation Caps Topper Set’’ is closely associated.

Nor can it do so.

In short, the Government’s claim that ‘‘private fes-

Although not necessarily for this specific point, the Government did submit for the

record some BTIs in which countries classified certain merchandise under headings other

than 9505. But such classification does not necessarily indicate that the countries in ques-

tion limit classification under heading 9505 to only that merchandise associated with recog-

nized ‘‘holidays.’’

To be classifiable under heading 9505, merchandise must be determined to be ‘‘Festive,

carnival or other entertainment articles ....’’See Heading 9505, HTSUS (emphasis added).

Thus, a country’s classification of assertedly ‘‘festive’’ merchandise under heading 9505 indi-

cates that the country in question treats as a ‘‘festive occasion’’ that special occasion with

which the merchandise is associated – whether that special occasion is a ‘‘holiday’’ or not.

In contrast, the classification of merchandise under some heading other than heading

9505 does not necessarily indicate that the authorities in the country at issue do not treat

as a ‘‘festive occasion’’ the non-‘‘holiday’’ special occasion (such as a birthday) with which the

allegedly ‘‘festive’’ merchandise is associated. For example, the classification may mean sim-

ply that – although the country recognizes birthdays and other non-‘‘holiday’’ special occa-

sions as ‘‘festive’’ occasions for purposes of heading 9505 – the relevant customs authorities

determined that the symbolic content of the particular merchandise was not sufficiently

closely identified with the non-‘‘holiday’’ festive occasion.

See also Pl.’s Brief at 19 n.4 (noting that ‘‘the Stipulation filed in this case provides for

the classification as ‘festive articles’ of Heading 9505 of many articles designed for use in

connection with birthdays, weddings and other private festive occasions’’), 21 (same); Pl.’s

Reply Brief at 2 (same).

In light of the position that the Government takes in its briefs filed with the Court, the

basis for the Government’s agreement to the classification of other merchandise subject to

the Stipulation is similarly unclear – Wilton’s Carousel Separator Topper Set (item # 2103–

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tive celebrations’’ such as birthdays, weddings, anniversaries, and

graduations are not ‘‘festive’’ occasions for purposes of heading 9505

simply cannot be reconciled with the Government’s position as evi-

denced in the parties’ Stipulation.

In sum, there is no merit to the Government’s claim that the ‘‘fes-

tive’’ occasions within the scope of HTSUS heading 9505 are limited

to ‘‘recognized’’ holidays. At a minimum, special occasions and events

such as the weddings, anniversaries, and birthdays at issue here are

‘‘festive’’ occasions within the meaning of that heading.

D. Customs’ Claim to Skidmore Deference

Although Customs denied Wilton’s Protests in this matter without

issuing a ruling letter, the Government nevertheless asserts that

Customs’ position is entitled to the full measure of Skidmore defer-

ence. See Def.’s Brief at 4, 6–7 (quoting Park B. Smith, 347 F.3d at

925, for the proposition that, ‘‘even where no formal decision has

been issued with respect to specific merchandise, ‘Skidmore weight

should be given to Customs’ position’’’). But see Pl.’s Reply Brief at

17–19; Pl.’s Supp. Brief at 4–9.

According to the Government, Skidmore deference is due because

‘‘Customs’ classification decisions in this case are consistent with its

position regarding the classification of cake decorations as set forth

in several Headquarters Ruling Letters (‘HQ’), New York Ruling Let-

ters (‘NY’), and its interpretation of the tariff term ‘festive articles’

set forth in the informed compliance publication entitled ‘What Ev-

ery Member of the Trade Community Should Know About Classifica-

tion of Festive Articles as a result of the Midwest of Cannon Falls

Court Case (1997).’ ’’ See Def.’s Brief at 5. But Customs has no color-

able claim to deference under the circumstances of this case.

1139), Wilton’s Circus Balloons Topper Set (item # 2113–2366), Wilton’s Pooh Pick (item

# 2113–3000), Wilton’s Mickey Pick (item # 2113–3600), and Wilton’s Teen Doll Pick - Bru-

nette (item # 2815–101), to name a few. Indeed, a review of the list of the more than 120

items classified as ‘‘festive articles’’ pursuant to the parties’ Stipulation suggests that the

sole item with symbolic content that is obviously associated with a recognized ‘‘holiday’’ is

Wilton’s ‘‘Glowing Pumpkin Fun Pix’’ (item # 2113–1287), which depict smiling Halloween

jack-o-lanterns.

The Government’s claim that ‘‘private festive celebrations’’ such as birthdays, weddings,

anniversaries, and graduations are not ‘‘festive’’ occasions for purposes of heading 9505 also

cannot be reconciled with Customs’ classification determinations in certain other cases. See,

e.g., NYRL A80948 (April 2, 1996) (cited in Pl.’s Protest at 11) (classifying ‘‘wedding cake

ornaments/tier toppers’’ as ‘‘festive articles’’ for purposes of heading 9505). But see NYRL

J89592 (Oct. 29, 2003) (stating that ‘‘weddings are not regarded as festivals or holidays’’ for

purposes of heading 9505).

The Government takes strong exception to Wilton’s reliance on the parties’ Stipulation

to support its claim that ‘‘festive’’ occasions under heading 9505 are not limited to recog-

nized ‘‘holidays.’’ See Def.’s Brief at 18 n.11; Def.’s Supp. Brief at 8–9. The Government’s ob-

jections are largely lacking in merit, however. In any event, quite apart from the Stipula-

tion, Wilton’s point is proved by the drafters’ choice of the term ‘‘festive’’ (rather than

‘‘holiday’’), and by dictionary definitions of the term‘‘festive.’’

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First, as noted above, not only was Customs’ position in this mat-

ter not the product of a deliberative notice-and-comment process, it

was not even embodied in a ruling letter specific to the merchandise

at issue in this action. Nor does the Government suggest that any of

the other Customs ruling letters to which it alludes were subject to

notice and comment. See Structural Indus., 356 F.3d at 1370 (refus-

ing Skidmore deference where, inter alia , Customs ruling letter was

not product of notice-and-comment process); Hartog Foods Int’l, Inc.

v. United States, 291 F.3d 789, 791 (Fed. Cir. 2002) (extending no

Skidmore deference ‘‘because Customs denied [the] protest without

an official ruling’’).

Further, the ‘‘position’’ for which the Government seeks deference

is entirely unclear. The Government’s brief (quoted above) asserts

broadly that Customs’ classification decisions in this case are ‘‘con-

sistent with [the agency’s] position regarding the classification of

cake decorations as set forth in several Headquarters Ruling Letters

(‘HQ’), [and] New York Ruling Letters (‘NY’).’’ See Def.’s Brief at 5.

However, nowhere in its briefs does the Government identify the

specific Customs ruling letters to which it is there referring.

And

Although they are expressly not cited to support Customs’ claim to Skidmore defer-

ence, the Government did append to its opening brief copies of eight Customs ruling letters.

Two of the eight ruling letters are cited to show that ‘‘Customs has interpreted subheading

9505.90.40 to cover single use, disposable party goods.’’ See Def.’s Brief at 17 n.10 (citing

NYRL G81888 (Sept. 29, 2000); NYRL D83845 (Nov. 18, 1998)). The other six ruling letters

are cited to illustrate that ‘‘Customs has classified toy figures used to decorate a cake but

which could be retained by the consumer for lasting entertainment purposes ...as‘dolls’in

Heading 9502 or as ‘other toys’ in Heading 9503.’’ See Def.’s Brief at 27 n.17 (citing HQ

954996 (April 15, 1994); HQ 954997 (July 1, 1994); HQ 954998 (July 1, 1994); HQ 954999

(June 24, 1994); HQ 954616 (May 10, 1994); NYRL 804188 (Dec. 15, 1994)).

But even if those eight ruling letters were the ones on which the Government was rely-

ing to support Customs’ claim to deference here, that reliance would be in vain.

As the dates of the ruling letters indicate, all but two antedate the decisions of both this

court and the Court of Appeals in Midwest of Cannon Falls, a case that the Government

itself has labeled ‘‘seminal.’’ See Def.’s Brief at 10. And the two ruling letters that were is-

sued after Midwest of Cannon Falls do not mention (or even reflect the teachings of) the

Court of Appeals in that case. See NYRL G81888 (Sept. 29, 2000); NYRL D83845 (Nov. 18,

1998).

All eight of the ruling letters attached to the Government’s brief deal with cake decora-

tions. See NYRL G81888 (American flag picks); NYRL D83845 (wedding cake topper); HQ

954996 (teen boy and girl cake toppers); HQ 954997 (‘‘Walking Waldo’’ cake topper); HQ

954998 (assorted cake toppers of ‘‘Garfield’’ figure attired for various sports); HQ 954999

(cake toppers of Jasmine on Rajah the Tiger and Genie with Aladdin on a Carpet); HQ

954616 (Beauty and the Beast cake toppers); NYRL 804188 (Power Ranger cake toppers).

As Wilton notes, however, none of those items is similar to the merchandise still in dispute

in this action. See Pl.’s Reply Brief at 19 (asserting that Government ‘‘has not pointed to one

ruling . . . [involving merchandise that] closely resembles the merchandise’’ in this action).

Nor does a review of the ruling letters suggest that there are to be distilled from them

any general principles with real relevance to the facts of this case. Indeed, two of the ruling

letters include no rationale whatsoever. They state simply that the merchandise and the

parties at issue are the same as those in a prior ruling, and endorse that prior ruling. See

HQ 954997; HQ 954998. A third letter includes no analysis of heading 9505. See HQ

954999.

Several of the remaining ruling letters indicate that cake decorations within the scope of

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nowhere in its briefs does the Government explain how those un-

specified Customs ruling letters concerning cake decorations are

consistent with Customs’ actions in this case.

heading 9505 must be ‘‘inexpensive,’’ ‘‘flimsy,’’ and for one-time use. See NYRL D83845; HQ

954996; HQ 954616; NYRL 804188. However, Customs did not deny Wilton’s Protests on

the grounds that the merchandise at issue was durable or expensive, and the Government

has not challenged any specific item remaining at issue in this action on such grounds. Nor

could the Government do so. The record as to Wilton’s wedding merchandise (including the

Cherub Place Card Holders) and its cake press sets indicates to the contrary. See, e.g.,Pl.’s

Reply Brief at 16–17 (noting that wedding items ‘‘are mainly plastic and are not intended to

be used again – they are inexpensive and relatively cheap items’’); Pl.’s Supp. Reply Brief at

5 (noting that wedding items ‘‘are one-time use and are generally thrown away after the

wedding or anniversary’’); Pl.’s Exhs. (some of which list the very modest prices of items at

issue, as well as the prices of other merchandise comparable to that at issue). More impor-

tantly, the Court of Appeals has flatly rejected Customs’ attempts to exclude merchandise

from classification under heading 9505 based on its durability and value. See Midwest of

Cannon Falls, 122 F.3d at 1428. Cf. Nicholson II, AP–97–110 & AP–97–113 (CITT Sept. 2,

1998) (holding that ‘‘goods do not necessarily have to be made of non-durable material’’ to be

classifiable as ‘‘festive articles’’ under heading 9505).

It is similarly irrelevant that six of the ruling letters indicate that ‘‘Customs has classi-

fied toy figures used to decorate a cake but which could be retained by the consumer for

lasting entertainment purposes ...as‘dolls’inHeading9502 or as ‘other toys’ in Heading

9503.’’ See Def.’s Brief at 27 n.17 (citations omitted). The merchandise still at issue includes

no figurines used to decorate cakes. The Government does not contend otherwise. See Def.’s

Brief at 26 (stating that ‘‘[n]one of the articles at issue here are ‘figurines,’ and the articles

at issue here have a function other than as ‘cake decorations’ ’’). Nor was any of the mer-

chandise still at issue liquidated by Customs either as ‘‘dolls’’ under heading 9502 or as

‘‘other toys’’ under heading 9503. Cf. Def.’s Supp. Brief at 6 (asserting that none of the ar-

ticles at issue have ‘‘toy-like amusement qualities’’).

In addition, two of the Customs rulings recite the fact that the Explanatory Notes to

heading 9505 expressly refer to cake decorations, but fail to acknowledge that such decora-

tions are limited to those ‘‘traditionally associated with a particular festival.’’ See NYRL

G81888; NYRL D83845. It is impossible to tell from a reading of those rulings whether Cus-

toms’ analysis there simply suffered from a lack of rigor, or whether – more fundamentally

– the agency was taking the position that all cake decorations were classifiable under head-

ing 9505, without regard to their association with a ‘‘particular festival’’ (provided that the

decorations were flimsy, inexpensive, and disposable). Both possibilities are troubling – par-

ticularly since two of the key issues in this case deal directly with that particular limitation

(i.e., whether or not ‘‘particular festival[s]’’ are restricted to recognized ‘‘holidays,’’ and

whether certain motifs are ‘‘closely associated with’’ festive occasions within the scope of

heading 9505).

Further, the only ruling of the eight that found merchandise classifiable under heading

9505 – the ruling on the American flag picks – fails to indicate which ‘‘festive’’ occasion Cus-

toms found that merchandise to be ‘‘closely associated with.’’ See NYRL G81888. That fail-

ing is all the more troubling because the ruling postdates Midwest of Cannon Falls. The

only other ruling letter that postdates Midwest of Cannon Falls concerned a wedding cake

topper. As noted above, that ruling too is conspicuously silent as to requirement of a ‘‘close

association with’’ a specific festive occasion. See NYRL D83845. Thus, Customs there denied

classification under heading 9505 not because the agency interpreted the heading to ex-

clude wedding-related merchandise (the position that the agency has taken in this case),

but – rather – because the wedding cake topper was not flimsy, inexpensive, and disposable.

Id. The coup de grace here is NYRL A80948, cited in Wilton’s Protest. See Protest at 11–12

(citing NYRL A80948 (April 2, 1996)). In that ruling, Customs classified a wedding cake top-

per under heading 9505. Quite apart from the merits of the numerous other criticisms listed

above, that ruling would alone suffice to lay to rest the Government’s claim that Customs

has had a consistently held position on the classification of cake decorations as ‘‘festive ar-

ticles’’ under heading 9505.

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In addition to the unspecified Customs ruling letters that it in-

vokes, the Government also asserts that Customs’ determination in

this matter is consistent with the agency’s position on the classifica-

tion of ‘‘festive articles’’ as set forth in the Customs publication,

‘‘What Every Member of the Trade Community Should Know About

Classification of Festive Articles as a Result of the Midwest of Can-

non Falls Court Case’’ (Nov. 1997), published at 32 Cust. Bull. & Dec.

Nos. 2/3 at 169 (Jan. 21, 1998). However, that publication has been

so thoroughly discredited that Customs has now withdrawn it. See

generally Pl.’s Reply Brief at 18–19; Pl.’s Supp. Brief at 6–7.

The

publication thus does nothing to support Customs’ claim to deference

in this action. More generally, to the extent that the Government’s

argument here is that Customs has taken a ‘‘consistent’’ position on

the scope of ‘‘festive articles’’ under heading 9505, it is little exag-

geration to say that the Court of Appeals has just as consistently re-

jected Customs’ position.

Further, there is nothing else about the position that Customs

took at the administrative level in this case that would support a

claim of deference. There is no relationship between any rationale

for the agency’s denial of the protests at issue, and the arguments

made here to defend those denials. In denying Wilton’s Protests, for

example, Customs did not rely on the 2003 amendment to the Ex-

planatory Notes excluding ‘‘utilitarian’’ or ‘‘functional’’ articles from

the scope of heading 9505, on which the Government relies so

heavily here. See Protests (annotated by Customs to indicate denial,

stating simply that ‘‘merchandise does not qualify as toys or festive

articles,’’ and that ‘‘mdse. does not qualify for either toys or festive

articles’’). Indeed, Customs could not have done so. At the time Cus-

toms denied the Protests in 2000, no such change to the Explanatory

Notes was even under consideration by the World Customs Organi-

zation.

See Pl.’s Reply Brief at 5 (noting that, in denying Protest,

‘‘Customs did not, and could not, rely upon the later-adopted Ex-

planatory Note change as the basis for its classification of Wilton’s

goods in liquidation’’); see generally Michael Simon Design,30CITat

, 452 F. Supp. 2d at 1323 (denying deference in ‘‘festive articles’’

case, noting that Government relied on 2003 amendment to Ex-

planatory Notes in litigation, but that protest was denied solely on

other grounds, which in turn were not asserted in litigation).

See, e.g., Park B. Smith, 25 CIT at 508 n.1 (criticizing Customs publication and casti-

gating the agency for its ‘‘inexcusably irresponsible attempt ...topresent to the public its

two-dimensional/three-dimensional distinction theory as the current state of the law after

Midwest’’), aff’d in part, rev’d in part, and remanded, 347 F.3d at 929 (firmly rejecting, inter

alia, the ‘‘two-dimensional’’ versus ‘‘three-dimensional’’ distinction that Customs and Gov-

ernment sought to draw).

Customs’ denial of Wilton’s Protest also predated even this court’s opinion in Park B.

Smith, and thus – by definition – did not reflect the gloss that the Court of Appeals’ opinion

in that case added to Midwest of Cannon Falls.

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Nor did Customs’ denial of Wilton’s Protests make any reference to

the ‘‘one step removed’’ argument that the Government has asserted

in this litigation. See section III.B, supra. Customs’ terse dismissal of

Wilton’s Protests similarly failed to focus to any degree on issues

such as the scope of the ‘‘festive’’ occasions within the ambit of head-

ing 9505, and the specific motifs of the merchandise here at issue –

arguments that the Government has advanced strenuously in this

forum. See section III.C, supra; section III.F, infra.

For all these reasons, Customs’ position lacks ‘‘power to persuade,’’

and thus merits no deference in this action. See Skidmore, 323 U.S.

at 140.

E. The Classification of Merchandise in Sets

As discussed in greater detail below, some of the items at issue

consist of multiples of the same article.

For example, Wilton’s

Cherub Place Card Holders are sold in sets of four identical card

holders. In other instances, an item consists of multiple articles that

are identical, except for variations in size – the Star Nesting Perim-

eter [Cookie] Cutter Set, for example. Other items – such as the

Christmas Cookie Collection Set – comprise a number of different ar-

ticles (in that case, assorted Christmas cookie cutters). And, finally,

the merchandise at issue includes three different types of Counter

Display Units (‘‘CDUs’’), which are retail displays offered by Wilton

for seasonal use in stores such as Target, Wal-Mart, or Michael’s.

Each such retail display unit includes several different types of

cookie cutters or cookie stamps, which the retailer sells to shoppers

individually. See generally 144 ct. North Pole Mini Cookie Cutter

CDU [Counter Display Unit]; 48 ct. Jolly Stamps! Cookie Stamp

CDU [Counter Display Unit]; Halloween Mini [Cookie] Cutter CDU

[Counter Display Unit] (96 ct.).

Where all of the articles in a set are classifiable under a single

heading of the HTSUS, no special classification analysis is required.

In this case, that includes sets that are made up of several articles

that are identical (or identical except for size), as well as sets that

are made up of several different articles all of which are classifiable

under the same heading of the HTSUS. Further, no special analysis

of the CDUs is required, because the assorted articles included in

them are not ‘‘put up in sets for retail sale,’’ but, instead, are sold –

Until expressly requested to do so, neither party ever identified any items of merchan-

dise at issue as sets, much less briefed the issue of the classification of such merchandise –

notwithstanding ample opportunity through two full rounds of initial briefing, followed by

oral argument and another two additional rounds of post-oral argument supplemental

briefing. See generally Pl.’s Response to the Court’s Letter of May 7, 2007 at 4–8; Letter to

Court from Counsel for Plaintiff (May 15, 2007); Letter to Court from Counsel for Defen-

dant (May 16, 2007).

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and classified – individually. See Explanatory Notes VI & X, General

Rule of Interpretation (‘‘GRI’’) 3(b), HTSUS.

In contrast, where an item consists of two or more articles ‘‘put up

in [a] set[ ] for retail sale’’ and the articles within that set ‘‘prima fa-

cie, fall under two or more headings,’’ classification is governed by

GRI 3(b) of the HTSUS.

Under GRI 3(b) – which sets forth the so-

called ‘‘essential character’’ test – ‘‘goods put up in sets for retail

sale...shall be classified as if they consisted of the material or com-

ponent which gives them their essential character.’’ See GRI 3(b),

HTSUS.

As the Court of Appeals has emphasized, the ‘‘essential character’’

inquiry is fundamentally factual in nature. See Structural Indus.,

Inc. v. United States, 356 F.3d 1366, 1370 (Fed. Cir. 2004) (citing Pil-

lowtex Corp. v. United States, 171 F.3d 1370, 1376 (Fed. Cir. 1999)).

And, as the Explanatory Notes to GRI 3(b) make clear, there is no

hard-and-fast rule for conducting that inquiry, which is more art

than science:

The factor which determines essential character will vary as

between different kinds of goods. It may, for example, be deter-

mined by the nature of the material or component, its bulk,

quantity, weight or value, or by the role of a constituent mate-

rial in relation to the use of the goods.

Explanatory Note VIII, GRI 3(b), HTSUS; Canadian Vinyl Indus.,

Inc. v. United States, 76 Cust. Ct. 1, 2, 408 F. Supp. 1377, 1378

(1976), aff’d, 64 C.C.P.A. 97, 555 F.2d 806 (1977) (noting that ‘‘[d]is-

cernment’’ of ‘‘essential character’’ is not ‘‘an exact science’’).

In addition to the examples listed in the Explanatory Notes, Better

Home Plastics identified various other factors that may be consid-

ered in determining ‘‘essential character,’’ including the respective

indispensability of the properties of the components of the merchan-

dise, the respective cost of the components of the merchandise, the

basis for a consumer’s decision to purchase the merchandise, the re-

spective duration and/or frequency of the use of the components, and

the manner in which the merchandise is invoiced. See Better Home

Plastics Corp. v. United States, 20 CIT 221, 224, 916 F. Supp. 1265,

1267 (1996), aff’d, 119 F.3d 969 (Fed. Cir. 1997); see also Conair

Corp. v. United States,29CIT

, , 2005 WL 1941649 at*5-*6

(2005) (‘‘essential character’’ of tabletop fountains imparted by

pump, rather than sculpture element of fountain; consumer’s deci-

sion to purchase fountain ‘‘based entirely on the presence of the sub-

The Explanatory Notes to GRI 3(b) explain that – for purposes of that rule – ‘‘goods

put up in sets for retail sale’’ means goods which ‘‘consist of at least two different articles

which are, prima facie, classifiable in different headings. Therefore, for example, six fondue

forks cannot be regarded as a set within the meaning of this Rule.’’ See Explanatory Note X,

GRI 3(b), HTSUS.

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mersible pump and its ability to generate the sound of flowing wa-

ter’’). The marketing of the merchandise is relevant as well, though

it does not dictate classification. See Mead Corp. v. United States,

283 F.3d 1342, 1349 (Fed. Cir. 2002).

If merchandise cannot be classified pursuant to GRI 3(b) and the

‘‘essential character’’ test, then it is classified ‘‘under the heading

which occurs last in numerical order among those which equally

merit consideration,’’ pursuant to GRI 3(c). See GRI 3(c), HTSUS.

F. The Classification of the Subject Merchandise

In light of the analyses above, all that remains is to classify each

individual piece of the subject merchandise, applying the two-prong

test for ‘‘festive articles’’ established in Midwest of Cannon Falls, 122

F.3d 1423. As distilled in Park B. Smith and outlined above, that test

requires that an article be both (1) ‘‘closely associated with a festive

occasion,’’ and (2) ‘‘used or displayed principally during that festive

occasion.’’ See Park B. Smith, 347 F.3d at 927 (citing Midwest of Can-

non Falls, 122 F.3d at 1429). If the article’s use or display at other

times would not be ‘‘aberrant,’’ then the merchandise does not satisfy

the test and cannot be classified as a ‘‘festive article’’ under heading

9505. Park B. Smith, 347 F.3d at 927, 929.

1. Wedding Cake Separator Plates, Pillars, Columns,

and Plate Legs

Much of the Wilton merchandise remaining at issue consists of

wedding cake separator plates, pillars and columns, and separator

plate legs, all of which Wilton contends are classifiable as ‘‘festive ar-

ticles’’ under heading 9505.

Specifically, the separator plates, pillars and columns, and plate

legs at issue include the 9⬙ Square Separator Plate (item # 302–

1020), the 13⬙ Square Separator Plate (item # 302–1063), the 7⬙

Hexagon Separator Plate (item # 302–1705), the 10⬙ Hexagon Sepa-

rator Plate (item # 302–1748), the 13⬙ Hexagon Separator Plate

(item # 302–1764), the 16⬙ Hexagon Separator Plate (item # 302–

1799), the 17⬙ Crystal-Look Separator Plate (item # 302–1810), the

7⬙ Crystal-Look Separator Plate (item # 302–2013), the 9⬙ Crystal-

Look Separator Plate (item # 302–2035), the 11⬙ Crystal-Look Sepa-

Incredibly, although their briefs are replete with casual, offhand (and generally

conclusory) assertions as to whether or not a particular symbol or motif is ‘‘closely associ-

ated with’’ a particular ‘‘festive’’ occasion, neither party systematically briefed the motifs

and symbols at issue in this action.

Accordingly, the Court has been forced to scour both the caselaw in general and the evi-

dence of record here, in an effort to remedy the shortcomings of the parties’ briefs and to

dispose of the pending cross-motions. Under the circumstances, however, any attempt by ei-

ther party to raise on appeal an issue concerning symbols and motifs should meet with

skepticism and should be scrutinized closely.

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rator Plate (item # 302–2051), the 13⬙ Crystal-Look Separator Plate

(item # 302–2078), the 16½⬙ Heart Separator Plate (item # 302–

2118), the 8½⬙ Oval Separator Plate (item # 302–2130), the 11½⬙

Oval Separator Plate (item # 302–2131), the 14½⬙ Oval Separator

Plate (item # 302–2132), the 14⬙ Tier Stand Additional Cake Plate

(item # 302–7940), the 16⬙ Tier Stand Additional Cake Plate (item

# 302–7967), the 18⬙ Tier Stand Additional Cake Plate (item # 302–

7983), the 6⬙ Separator Plate – White (Replacement) (item # 302–

9730), the 8⬙ Separator Plate – White (Replacement) (item # 302–

9749), the 10⬙ Separator Plate – White (Replacement) (item # 302–

9757), the 16⬙ Separator Plate – White (Replacement) (item # 302–

9780), the 7⬙ Crystal-Look Spiked Pillars (item # 303–2322), the 9⬙

Crystal-Look Spiked Pillars (item # 303–2324), the 6½⬙ Tier Stand

Additional Column (item # 303–7910), the 7¾⬙ Tier Stand Additional

Column (item # 304–5009), the Tall Tier Cake Stand Basic Set (item

# 304–7915), and the Glue-On Plate Legs (item # 304–7930). See Pl.’s

Amended Exh. B–1.

As discussed above, the wedding cake separator plates, pillars and

columns, and plate legs are used in combination with one another to

separate and elevate the layers of a multi-tiered cake of the type

typically served at a wedding reception or an anniversary celebra-

tion. To be sure, the merchandise has a ‘‘functional’’ or ‘‘utilitarian’’

purpose. But, because the separator plates, pillars and columns, and

plate legs are visible when the wedding cake is presented (and, in-

deed, are part of the ‘‘presentation’’ of the wedding cake as a

whole),

they must be beautiful, as well as stable and strong. See

generally section I.A, supra.

The separator plates, pillars and columns, and plate legs are, in

essence, non-edible cake decorations for use on multi-tiered

wedding-type cakes. And the Explanatory Notes to heading 9505 ex-

pressly state that the heading covers ‘‘[c]ake and other

decorations . . . which are traditionally associated with a particular

festival.’’

See Explanatory Notes, Heading 9505, HTSUS; Pl.’s Brief

As the Government correctly observes, both the original and the amended versions of

Plaintiff’s Exhibit B–1 mistakenly list three articles (with three different item numbers)

which are actually covered by the parties’ Stipulation, and thus are no longer in dispute.

See Def.’s Response to Pl.’s Statement of Material Facts ¶ 5; Stipulation (item # 303–2171;

item # 303–2196; item # 303–2197); Pl.’s Amended Exh. B–1 (same item numbers); Pl.’s

Exh. B–1 (same item numbers).

No one speaks of an assembled multi-tiered wedding cake as ‘‘wedding cakes’’ (plural).

Instead, the creation is viewed as a whole – ‘‘the wedding cake.’’

The fact that numerous different styles of separator plates, pillars and columns, and

plate legs are offered for sale is further proof of their decorative nature. See generally sec-

tion I.A, supra (highlighting various styles of merchandise offered for sale). Presumably, if

the appearance of the separator plates, pillars and columns, and plate legs were of no sig-

nificance, there would be no reason to offer more than a single style.

The Government itself describes as ‘‘cake decorations’’ the merchandise that is the

subject of the parties’ Stipulation. See Def.’s Supp. Brief at 9. And, as discussed in greater

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at 16–17 (asserting that items at issue are ‘‘cake decorations’’ within

meaning of Explanatory Notes to heading 9505); section III.C, supra

(discussing weddings as ‘‘festive’’ occasions within meaning of head-

ing 9505).

In addition, as a review of the exhibits that Wilton filed with the

Court amply demonstrates, Wilton’s separator plates, pillars and col-

umns, and plate legs are designed to evoke the look of fine leaded

crystal, elegant lace, and other nuptial motifs ‘‘closely associated

with’’ weddings and anniversaries. See Park B. Smith, 347 F.3d at

927 (citation omitted). They are, in short, unmistakably wedding

merchandise, and are marketed and sold as such by Wilton itself,

and by the retailers to which Wilton sells the merchandise. More-

over, the design, style, and overall look of the separator plates, pil-

lars and columns, and plate legs are so distinctively nuptial that

their use on routine occasions would be patently ‘‘aberrant.’’

See

Park B. Smith, 347 F.3d at 927, 929.

The determination that Wilton’s wedding cake separator plates,

pillars and columns, and plate legs are ‘‘festive articles’’ under head-

ing 9505 is consistent with the decision of the Canadian Interna-

tional Trade Tribunal (‘‘CITT’’) in a case involving similar merchan-

dise, and is further reinforced by the parties’ Stipulation in this

action.

The imported items at issue in Nicholson I were Wilton merchan-

dise comparable to that at issue here – wedding cake separator

plates, columns, and pillars (as well as cake toppers). See Nicholson

I, AP–96–080 (CITT April 25, 1997). The CITT observed that the Ex-

planatory Notes to heading 9505 expressly state that ‘‘festive ar-

ticles’’ include ‘‘[c]ake and other decorations...whicharetradition-

ally associated with a particular festival.’’ Id. Noting that ‘‘[a]

‘decoration’ is generally defined as ‘anything used to add beauty: or-

nament,’ ’’ the CITT ruled that ‘‘the goods in issue, which sit on or

beside wedding or anniversary cakes, are decorations or ornaments

associated with particular festive occasions or festivals, namely wed-

dings and anniversaries.’’ Id.

detail below, much of that merchandise is virtually identical to the wedding cake separator

plates, pillars and columns, and plate legs still at issue.

Nowhere in its briefs does the Government dispute that the separator plates, pillars

and columns, and plate legs reflect a ‘‘bridal’’ or ‘‘nuptial’’ motif. Nowhere does the Govern-

ment suggest that the separator plates, pillars and columns, and plate legs are not obvi-

ously wedding merchandise. See, e.g., Def.’s Brief at 5 (noting that ‘‘the parties agree that

the imported merchandise consists of wedding cake pillars, separator plates, cake bases,

[and] plate pegs ...’’;and‘‘[t]he parties agree that the wedding cake separators, plate pegs,

and pillars are used to separate segments of a wedding cake which is comprised of several

tiers.’’) (emphases added). Nor does the Government anywhere dispute that it would be

clearly aberrant to use the merchandise other than for a tiered wedding-style cake.

Indeed, as Wilton points out, a multi-tiered cake is served only on an occasion such as

a wedding, when a very large cake is needed because there are a very large number of

guests. See Pl.’s Reply Brief at 16; Pl.’s Supp. Reply Brief at 4.

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And the CITT expressly ruled that the Wilton wedding cake sepa-

rator plates, columns, and pillars at issue there – virtually identical

to the merchandise in dispute here – were wedding cake decorations,

and thus ‘‘festive articles’’ within the scope of heading 9505:

With respect to the columns or pillars and separator plates, in

particular,...they are, in part, a structural element of the

cake and, for that reason, have a function, in themselves.

However,...the physical appearance of these products is deco-

rative such that they may also be considered to be decorations or

ornaments of cakes.

Nicholson I, AP–96–080 (CITT April 25, 1997) (emphasis added).

Finally, there is the Stipulation between the parties. As Wilton

notes, ‘‘Customs has already agreed that [items similar to the sepa-

rator plates, columns and pillars, and plate legs still at issue] are

classified under HTS Subheading 9505.90.4000.’’ Pl.’s Brief at 21; see

also id. at 19 n.4; Pl.’s Reply Brief at 2; Pl.’s Supp. Reply Brief at

4–5. Wilton further asserts that ‘‘[t]here is no reasonable basis to

distinguish the disputed merchandise...fromthegoods which have

been stipulated’’ for classification under heading 9505. Pl.’s Brief at

21.

It is true that the Government has made no meaningful attempt –

really, no attempt at all – to distinguish the merchandise which is

the subject of the Stipulation from the separator plates, pillars and

columns, and plate legs remaining at issue. See Def.’s Brief at 17

n.10.

And an independent comparison of the two lists, and a review

of the exhibits illustrating the merchandise, reveals no basis for

drawing meaningful distinctions.

Thus, for example, Customs stipulated to the classification under

heading 9505 of the 9⬙ Round Crystal Separator Set (item # 301–

1509), the 11⬙ Round Crystal Separator Set (item # 301–1511), and

the 13⬙ Round Crystal Separator Set (item # 301–1513). Each of

those sets consists of crystal-look separator plates of the specified di-

ameters (9⬙,11⬙,or13⬙), together with pillars in a corresponding

size. It is therefore entirely unclear why Customs refused to stipu-

late to the classification of the 9⬙ Crystal-Look Separator Plate (item

The Government states that Customs agreed to stipulate to the classification of ‘‘nu-

merous cake decorations which are single use, disposable party goods.’’ See Def.’sBriefat17

n.10. However, rather than attempting to factually distinguish the stipulated merchandise

from that remaining at issue, the Government simply states summarily that ‘‘the articles

which are before the Court in the parties’ cross-motions are not single-use, disposable party

goods.’’ Id.; see also id. at 18 n.11 (asserting in conclusory fashion that ‘‘the merchandise

which the parties have proposed for stipulation and those articles which remain at issue

are, simply put, not identical or substantially similar enough to justify the same classifica-

tion’’); Def.’s Supp. Brief at 8–9 (asserting that ‘‘unlike the article which the parties have

agreed to stipulate, the articles ...intheparties’ cross-motions are not single use, dispos-

able party goods’’).

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# 302–2035), the 11⬙ Crystal-Look Separator Plate (item # 302–

2051), and the 13⬙ Crystal-Look Separator Plates (item # 302–2078).

Similarly, although Customs stipulated to the classification under

heading 9505 of the 7⬙ Grecian Spiked Pillars and the 9⬙ Grecian

Spiked Pillars (item # 303–3710 and item # 303–3712, respectively)

(emphasis added) – and although Customs stipulated to the classifi-

cation under heading 9505 of the 3⬙ Crystal-Look Pillars, the 5⬙

Crystal-Look Pillars, and the 7⬙ Crystal-Look Pillars (item # 303–

2171, item # 303–2196, and item # 303–2197) (emphasis added) –

Customs inexplicably refused to stipulate to the classification of the

7⬙ Crystal-Look Spiked Pillars or the 9⬙ Crystal-Look Spiked Pillars

(item # 303–2322 and item # 303–2324).

Like the wedding merchandise subject to the parties’ Stipulation,

the remaining wedding cake separator plates, pillars and columns,

and plate legs are all classifiable as ‘‘festive articles’’ under HTSUS

heading 9505 – as that heading is interpreted in the companion Ex-

planatory Notes, and under the criteria articulated by the Court of

Appeals in Midwest of Cannon Falls and Park B. Smith.

Specifically, the 9⬙ Square Separator Plate, the 13⬙ Square Separa-

tor Plate, the 7⬙ Hexagon Separator Plate, the 10⬙ Hexagon Separa-

tor Plate, the 13⬙ Hexagon Separator Plate, the 16⬙ Hexagon Separa-

tor Plate, the 17⬙ Crystal-Look Separator Plate, the 7⬙ Crystal-Look

Separator Plate, the 9⬙ Crystal-Look Separator Plate, the 11⬙

Crystal-Look Separator Plate, the 13⬙ Crystal-Look Separator Plate,

the 16½⬙ Heart Separator Plate, the 8½⬙ Oval Separator Plate, the

11½⬙ Oval Separator Plate, the 14½⬙ Oval Separator Plate, the 14⬙

Tier Stand Additional Cake Plate, the 16⬙ Tier Stand Additional

Cake Plate, the 18⬙ Tier Stand Additional Cake Plate, the 6⬙ Separa-

tor Plate – White (Replacement), the 8⬙ Separator Plate – White (Re-

placement), the 10⬙ Separator Plate – White (Replacement), the 16⬙

Separator Plate – White (Replacement), the 7⬙ Crystal-Look Spiked

Pillars, the 9⬙ Crystal-Look Spiked Pillars, the 6½

⬙ Tier Stand Addi-

tional Column, the 7¾⬙ Tier Stand Additional Column, the Tall Tier

Cake Stand Basic Set, and the Glue-On Plate Legs are properly clas-

sified under HTSUS subheading 9505.90.40, as ‘‘Festive, carnival or

other entertainment articles...: Other: Confetti, paper spirals or

streamers, party favors and noisemakers; parts and accessories

thereof.’’

2. Cherub Place Card Holders

Also in dispute are Wilton’s Cherub Place Card Holders (item #

1001–9374). See Pl.’s Exh. D–1. Like the other wedding merchandise

(discussed above), Wilton contends that its Cherub Place Card Hold-

ers too are classifiable as ‘‘festive articles’’ under heading 9505.

As discussed in section I.A above, the Cherub Place Card Holders

are small, classic cherub figurines with their arms outstretched

above their heads, to hold seating cards. They are designed specifi-

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cally for use at wedding receptions, to designate guests’ seating as-

signments or guests’ places at their tables.

Like the other wedding merchandise at issue, the Cherub Place

Card Holders are made of plastic, so as to be inexpensive and dispos-

able. But, due to the nature of the event for which they are designed,

they are styled to look like much more expensive material (such as

porcelain or marble), and are used to complement the other design

elements of a nuptial celebration. See generally section I.A, supra.

The Cherub Place Card Holders are thus ‘‘decorations’’ for use at a

wedding celebration. And the Explanatory Notes to heading 9505 ex-

pressly state that the heading covers ‘‘[c]ake and other

decorations . . . which are traditionally associated with a particular

festival.’’ See Explanatory Notes, Heading 9505, HTSUS (emphasis

added); Pl.’s Brief at 16 (quoting definition of ‘‘decoration’’ in Ameri-

can Heritage Dictionary 372 (1991), as ‘‘an object...used to furnish

or adorn with fashionable or beautiful things’’); section III.C, supra

(discussing weddings as ‘‘festive’’ occasions within meaning of head-

ing 9505).

Even if the Cherub Place Card Holders were not deemed to be

‘‘decorations’’ within the express language of the Explanatory Notes

to heading 9505, they would nevertheless be classifiable under that

heading pursuant to Midwest of Cannon Falls and Park B. Smith.As

a review of the exhibits submitted by Wilton reveals, both by their

luxury-look design and their use of a symbol traditionally identified

with love and romance, the Cherub Place Card Holders reflect clas-

sic nuptial motifs. See Park B. Smith, 347 F.3d at 927 (citation omit-

ted); Pl.’s Brief at 4–5 (noting that cherub is ‘‘a typical romantic

theme featured at wedding or anniversary celebrations’’); see gener-

ally Pl.’s Exhs. (depicting numerous items of wedding merchandise

reflecting cherub motif). Indeed, as part of the Stipulation entered

into by the parties to this action, Customs agreed to classify as ‘‘fes-

tive articles’’ under heading 9505 Wilton’s Harvest Cherub Separator

Set (item # 301–3517). See Stipulation. As its name suggests, that

item – like numerous other pieces of Wilton’s wedding merchandise –

features cherubs as the most prominent motif. See Stipulation.

As discussed in section III.A above, the Government in this litigation has sought to

rely on the 2003 amendment to the Explanatory Notes to heading 9505 to support its argu-

ment that ‘‘utilitarian’’ or ‘‘functional’’ merchandise is not classifiable under that heading.

It is worth noting that the 2003 amendments expressly refer to table decorations. See Ex-

planatory Notes, Heading 9505, HTSUS, at xx–9505–1 (2007) (reflecting 2003 amendment)

(indicating that scope of heading 9505 includes ‘‘[f]estive decorations used to decorate

rooms, tables, etc.’’) (emphasis added). To that extent, the 2003 amendment to the Explana-

tory Notes may buttress Wilton’s claim that its Cherub Place Card Holders – which serve

both to designate wedding guests’ seating assignments and to decorate wedding reception

tables (while complementing other elements of the design and ambience of the event) – are

classifiable as ‘‘festive articles’’ within the scope of heading 9505, even under the terms of

the Explanatory Notes prior to the 2003 ‘‘clarifying’’ amendments.

As noted elsewhere above, the Government repeatedly asserts that this action is ripe

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Like Wilton’s cake separator plates, pillars and columns, and plate

legs (discussed above), the Cherub Place Card Holders are wedding

merchandise, and are marketed and sold as such by Wilton itself,

and by the retailers to which Wilton sells the merchandise. More-

over, the design, style, and overall look of the Cherub Place Card

Holders are so distinctively nuptial that their use on routine occa-

sions would clearly be ‘‘aberrant.’’ See Park B. Smith, 347 F.3d at

927, 929.

In sum, under the criteria set forth by the Court of Appeals in

Midwest of Cannon Falls and Park B. Smith, Wilton’s Cherub Place

Card Holders – like its other wedding merchandise – are properly

classifiable under HTSUS subheading 9505.90.40, as ‘‘Festive, carni-

val or other entertainment articles...: Other: Confetti, paper spi-

rals or streamers, party favors and noisemakers; parts and accesso-

ries thereof.’’ See Subheading 9505.90.40, HTSUS.

3. Cake Press Sets

The cake press sets in dispute are Wilton’s Script Message Press

Set (item # 2104–2061), its Block Letter Press Set (item # 2104–

2077), and its All-Occasion Script Message Press Set (item # 2104–

2090). See Pl.’s Amended Exh. G–1. The cake presses are disposable

for summary judgment. It nevertheless seems to quibble with Wilton’s statement that a

cherub is a motif closely associated with weddings. See Def.’s Response to Pl.’s Statement of

Facts ¶ 7 (denying ‘‘that a ‘cherub’ is ‘a typical romantic theme featured at wedding or anni-

versary celebrations’ ’’). The Government proffers not a scintilla of evidence to support its

position, however. See Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390–91

(Fed. Cir. 1987) (‘‘[m]ere denials or conclusory statements are not sufficient’’ to put a mate-

rial fact into dispute). Nor does the Government attempt to distinguish between the cherub

motif of the Cherub Place Card Holders and the cherub motif of the Harvest Cherub Sepa-

rator Set, the classification of which it has stipulated. Similarly, it offers no explanation for

the numerous other wedding items reflecting some sort of cherub motif which are offered by

Wilton, and which constitute additional evidence supporting Wilton’s position.

Whether or not the use of a plain cherub motif alone would be ‘‘aberrant’’ at times

other than a wedding or anniversary, the use of the motif as incorporated into the item here

at issue – a classically-styled cherub, rendered as a (disposable) place card holder, with its

arms outstretched precisely for the purpose of holding a standard-sized seating place card –

is limited to weddings and anniversaries. See Pl.’s Reply Brief at 16 (by definition, place

card holders used for weddings – romantic, large-scale events ‘‘with tens or hundreds of

guests’’). The use of the Cherub Place Card Holders on other occasions would be ‘‘aberrant.’’

Thus, for example, as Wilton wryly observes, the Cherub Place Card Holders would not be

used to indicate the seating arrangements at a corporate board meeting. See Pl.’s Brief at

19–20.

Although the Government insists that weddings are not ‘‘festive’’ occasions for purposes

of heading 9505, nowhere does the Government suggest that the Cherub Place Card Hold-

ers are not obviously wedding merchandise. See, e.g., Def.’s Brief at 18–19 (emphasizing

that Wilton ‘‘admits’’ that Cherub Place Card Holders are used for weddings, and arguing

that weddings are not ‘‘festive’’ occasions under heading 9505); Def.’s Reply Brief at 3 (em-

phasizing that Wilton has ‘‘admitted’’ that Cherub Place Card Holders are used for wed-

dings, and arguing that weddings are not ‘‘festive’’ occasions under heading 9505). Nor does

the Government anywhere dispute that it would be clearly aberrant to use the Cherub

Place Card Holders other than for a wedding or similar celebration.

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and are used – alone, or in combination with one another – to stamp

or imprint specific, celebratory greetings and sentiments onto

frosted cakes before serving. See generally section I.A, supra.

Wilton advertises and sells the cake press sets through the Cake

Decorating Shop of its Online Store, and in the corresponding sec-

tion of its Yearbook catalog. Retailers such as Target, Wal-Mart, and

Michael’s display the sets year-round in the ‘‘wedding’’ and/or the

‘‘birthday’’ or ‘‘party goods’’ sections of their stores (as appropriate).

See generally section I, supra.

The Explanatory Notes to heading 9505 expressly state that the

heading covers ‘‘[c]ake ...decorations . . . which are traditionally as-

sociated with a particular festival.’’ See Explanatory Notes, Heading

9505, HTSUS. Wilton emphasizes that ‘‘‘decoration’ is generally de-

fined as ‘an object or group of objects used to furnish or adorn with

fashionable or beautiful things.’ ’’ See Pl.’s Brief at 16 (quoting

American Heritage Dictionary 372 (1991)).

Because a cake press is

‘‘an object...used to furnish or adorn’’ a cake (by imprinting the

frosted cake with a special greeting or sentiment), the cake presses

at issue are arguably ‘‘cake decorations’’ within the meaning of the

Explanatory Notes to heading 9505,

and thus ‘‘festive articles’’ to

the extent that they are ‘‘traditionally associated with a particular

festival.’’ See Explanatory Notes, Heading 9505, HTSUS.

Even if they are not treated as ‘‘cake decorations’’ within the ex-

press language of the Explanatory Notes to heading 9505, however,

The Government erroneously asserts that the cake press sets at issue ‘‘include letters

(italics, block and script)...whichcanbeusedtodecorate any cake for any purpose.’’ See

Def.’s Response to Pl.’s Statement of Facts ¶ 10 (emphases added). The Government is sim-

ply flat wrong on the facts as to the nature of the merchandise.

The cake press sets at issue include no individual letters whatsoever. They consist en-

tirely of words and two or three-word phrases. There is thus no truth to the Government’s

claim that the press sets can be used to decorate any cake ‘‘for any purpose.’’ The press sets

cannot be used, for example, to spell out ‘‘Have a Great Day!’’ And it would be patently ‘‘ab-

errant’’ to use a Wilton cake press to decorate ‘‘any cake [to be used] for any purpose’’ with

the greeting ‘‘Merry Christmas’’ (one of the greetings included in the cake press sets at issue

here). Such a greeting would be appropriate only on a cake served during the Christmas

season.

As discussed in section III.C above, tariff terms such as ‘‘decoration’’ are construed ac-

cording to their common and commercial meanings, which are presumed to be the same.

And the meaning of such terms may be discerned by consulting dictionaries and other reli-

able sources of information. See, e.g., Warner Lambert Co., 407 F.3d at 1209 (citation omit-

ted).

There are essentially two ways of decorating a cake with a celebratory message or sen-

timent. The cake may be decorated with edible or non-edible lettering that is left on the

cake when the cake is presented, spelling out the message or sentiment. Alternatively, a

cake press can be used to imprint the celebratory message or sentiment into the frosting of

the cake itself.

There would seem to be little doubt that the lettering in the first case would be consid-

ered ‘‘cake decorations’’ within the meaning of the Explanatory Notes to heading 9505. And

it is unclear whether a reasonable, logical distinction can be drawn between the lettering in

the first case and the lettering in the second case – particularly where, as here, the lettering

in the second case is one-time use, disposable merchandise.

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the cake presses are nevertheless classifiable as ‘‘festive articles’’

pursuant to Midwest of Cannon Falls and Park B. Smith. The cake

press greetings – such as ‘‘Merry Christmas,’’ ‘‘Happy New Year,’’ and

similar sentiments appropriate for other holidays such as Easter,

Thanksgiving, and Valentine’s Day – are all motifs ‘‘closely associ-

ated with’’ those holidays. See Park B. Smith, 347 F.3d at 927 (cita-

tions omitted); U.S. Customs Service, ‘‘What Every Member of the

Trade Community Should Know About Classification of Festive Ar-

ticles as a Result of the Midwest of Cannon Falls Court Case’’ (Nov.

1997), published at 32 Cust. Bull. & Dec. Nos. 2/3 at 169, 177–78

(Jan. 21, 1998) (acknowledgment by Customs that symbols/motifs

justifying ‘‘festive articles’’ classification may include words and

phrases, such as ‘‘Merry Christmas,’’ ‘‘Happy Thanksgiving,’’ ‘‘Happy

Easter,’’ and ‘‘Happy Valentine’s Day’’).

Similarly, sentiments such

as ‘‘Happy Birthday,’’ ‘‘Happy Anniversary,’’ ‘‘Congratulations,’’ and

‘‘Best Wishes’’ are motifs ‘‘closely associated with’’ non-holiday ‘‘fes-

tive’’ occasions including birthdays, weddings, anniversaries, and

baptisms or First Communions.

Moreover, such messages and greetings are so intrinsically linked

to ‘‘festive’’ occasions that their use on non-special occasions would

clearly be ‘‘aberrant.’’ See Park B. Smith, 347 F.3d at 927, 929. No

one would decorate a cake to read ‘‘Congratulations’’ or ‘‘Best

Wishes’’ – much less ‘‘Merry Christmas’’ or ‘‘Happy Birthday’’ – if the

cake was to be served for dessert at a regular, everyday family din-

ner.

Accordingly, under the criteria set forth by the Court of Appeals in

Midwest of Cannon Falls and Park B. Smith, Wilton’s Script Mes-

sage Press Set, Block Letter Press Set, and All-Occasion Script Mes-

sage Press Set are all properly classifiable under HTSUS subhead-

ing 9505.90.40, as ‘‘Festive, carnival or other entertainment

articles...:Other: Confetti, paper spirals or streamers, party favors

and noisemakers; parts and accessories thereof.’’

As discussed above, this publication has been withdrawn by Customs (largely because

the publication espoused the ‘‘two-dimensional’’ versus ‘‘three-dimensional’’ distinction that

has now been thoroughly discredited by the courts). See generally section III.D, supra.How-

ever, the publication retains vitality as evidence of symbols and motifs that Customs has

recognized are ‘‘closely associated with’’ ‘‘festive’’ occasions for purposes of heading 9505.

Specifically, the Script Message Press Set includes presses of the words and phrases

‘‘Best,’’ ‘‘Wishes,’’ ‘‘Happy,’’ ‘‘Birthday,’’ ‘‘Anniversary,’’ and ‘‘Congratulations.’’ The Block Let-

ter Press Set includes presses of the same words – ‘‘Best,’’ ‘‘Wishes,’’ ‘‘Happy,’’ ‘‘Birthday,’’

‘‘Anniversary,’’ and ‘‘Congratulations’’ – in block letters, rather than script. And the All-

Occasion Script Message Press Set includes presses of ‘‘Merry Christmas,’’ ‘‘Happy New

Year,’’ ‘‘Easter,’’ ‘‘Thanksgiving,’’ ‘‘God Bless You,’’ ‘‘I Love You,’’ and ‘‘Good Luck.’’ See Pl.’s

Exh. G–2.

The result – classification of the cake press sets under heading 9505 – would be the

same if each of the three items were analyzed as a set and classified in accordance with its

‘‘essential character’’ pursuant to GRI 3(b). See generally section III.E, supra. The very na-

ture of the cake press sets, and the way in which they are marketed by Wilton and the re-

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4. Bakeware, Cookie Cutters, and Cookie Stamps

The final merchandise remaining at issue – bakeware, cookie cut-

ters, and cookie stamps – includes merchandise which is, according

to Wilton, associated with Christmas, Valentine’s Day, Halloween,

and birthdays (as well as a few miscellaneous other events).

a. Christmas Merchandise

Wilton identifies 11 items as Christmas merchandise, and asserts

that all are classifiable as ‘‘festive articles’’ under heading 9505.

Those items include the Treeliteful Pan (item # 2105–425), the

Snowman Pan (item # 2105–803), the Smiling Santa Pan (item

# 2105–3310), the Holiday House Pan (item # 2105–3311), the Poin-

settia Pan (item # 2105–3312), the Star Nesting Perimeter Cutter

Set (item # 2304–111), the Gingerbread Perimeter Cutter Set (item

# 2304–121), the Christmas Cookie Collection Set (item # 2304–

802), and item # 516–1007, a Christmas cookie cutter or cookie

stamp. Also included are Wilton’s 144 ct. North Pole Mini Cookie

Cutter CDU [Counter Display Unit] (item # 2301–1036), as well as

its 48 ct. Jolly Stamps! Cookie Stamp CDU [Counter Display Unit]

(item # 2307–1001). See Pl.’s Exh. E–1; Pl.’s Amended Exh. F–1.

Included in the North Pole Mini Cookie Cutter Counter Display

Unit are 144 separate cookie cutters in the shapes of a Christmas

tree, a snowman, an angel, a Christmas stocking, and a snowflake.

See Letter to Court from Counsel for Plaintiff (May 15, 2007) (cor-

recting Pl.’s Response to the Court’s Letter of May 7, 2007 at 5). The

Jolly Stamps! Cookie Stamp Counter Display Unit includes 48 sepa-

rate cookie stamps with motifs of a Christmas tree, a gingerbread

man, and bells with holly. See Letter to Court from Counsel for

Plaintiff (May 15, 2007).

As discussed elsewhere above, the listed merchandise is generally

imported and sold only in conjunction with the Christmas holiday

season. Indeed, much of it is distinctively Christmas merchandise.

Santa Claus, Christmas trees, Christmas stockings, angels, bells

tailers to which Wilton sells them, are compelling evidence that it is the association be-

tween the content of the greetings/sentiments and the ‘‘festive’’ occasions to which they are

related that is the basis for a consumer’s decision to purchase such sets. See Better Home

Plastics, 20 CIT at 224, 916 F. Supp. at 1267; Conair Corp.,29CITat

, 2005 WL

1941649 at * 5 - * 6.

Similarly, even if one or two of the individual words or phrases in a cake press set were

found not to be prima facie classifiable as ‘‘festive articles’’ under heading 9505, the remain-

der of the words and phrases in the set would impart the ‘‘essential character’’ of the set as

a whole – at least under the circumstances presented here (where, inter alia, the items are

marketed specifically for ‘‘cake decorating’’ and most of the presses are, by definition, lim-

ited to use solely on ‘‘festive’’ occasions). See generally Letter to Court from Defendant (May

16, 2007) at 3 (citing Explanatory Note X, GRI 3(b), HTSUS (discussing example of classifi-

cation of ‘‘[d]rawing kits’’)).

The individual cookie stamps are depicted in the ‘‘Christmas’’ pages of Wilton’s Year-

book catalog that were filed with the Court.

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with holly, poinsettias, and snowmen wearing top hats prominently

decorated with sprigs of holly leaves and berries are all motifs

‘‘closely associated with’’ Christmas. See Park B. Smith, 347 F.3d at

927 (citation omitted); id. at 926, 929 (Santa and Christmas trees);

Midwest of Cannon Falls, 122 F.3d at 1428 (angels); Russ Berrie, 381

F.3d at 1335–36 (bells and holly); San Francisco Candle Co. v.

United States, 26 CIT 523, 529, 206 F. Supp. 2d 1304, 1312 (2002),

aff’d, 104 Fed. Appx. 714 (Fed. Cir. 2004) (Christmas stockings); A

Dictionary of Agricultural and Allied Terminology 583 (John N.

Winburne, ed.-in-chief, Michigan State Univ. Press 1962) (‘‘poinset-

tia’’ is ‘‘a shrub grown as a Christmas pot plant for its showy, usually

vermilion bracts’’) (emphasis added)

; Russ Berrie, 381 F.3d at 1336

(‘‘[s]nowmen decorated with holly).

Moreover, the symbols of Santa, Christmas trees, Christmas stock-

ings, angels, bells with holly, poinsettias, and snowmen sporting top

hats adorned with sprigs of holly are so intrinsically linked to

Christmas that the use of cookie cutters and cookie stamps featuring

those motifs at other times of the year would clearly be ‘‘aberrant.’’

See Park B. Smith, 347 F.3d at 927, 929. Accordingly, under the cri-

teria articulated by the Court of Appeals in Midwest of Cannon Falls

and Park B. Smith, Wilton’s Smiling Santa Pan, its Poinsettia Pan,

and its Snowman Pan – together with certain cookie cutters included

in its North Pole Mini Cookie Cutter Counter Display Unit (specifi-

cally, the Christmas tree cookie cutter, the Christmas stocking cookie

cutter, and the angel cookie cutter), as well as certain cookie stamps

included in its Jolly Stamps! Cookie Stamp Counter Display Unit

(specifically, the Christmas tree cookie stamp and the bells with

holly cookie stamp) – are all properly classifiable under HTSUS sub-

heading 9505.10.50, as ‘‘Festive, carnival or other entertainment ar-

Customs itself has recognized the poinsettia as a traditional Christmas motif. See, e.g.,

32 Cust. Bull. & Dec. Nos. 2/3 at 174 (Jan. 21, 1998) (artificial poinsettia wreaths, center-

pieces, candle rings, and garlands classifiable as ‘‘festive articles’’ under heading 9505). And

the Poinsettia Pan is described in Wilton’s Yearbook catalog as ‘‘[a] delightful sign of the

Christmas season ...’’See Wilton Yearbook (emphasis added).

See also The Columbia Encyclopedia 2601 (Barbara A. Chernow & George A. Vallasi,

eds., Columbia U. Press 5

ed. 1993) (noting that ‘‘[t]he poinsettia ...,whoseseveralspe-

cies are sometimes considered a separate genus (Poinsettia), is a popular Christmas decora-

tion with its large rosettes of usually bright-red bracts’’); Dictionary of Agricultural and En-

vironmental Science (Frederick R. Troeh & Roy L. Donahue, eds., Iowa State Press 2003)

(poinsettia is ‘‘commonly used for Christmas decorations’’). But see Def.’s Reply Brief at 3

(arguing that baking pan in shape of poinsettia is merely ‘‘directed to general or seasonal

use’’).

See generally 32 Cust. Bull. & Dec. Nos. 2/3 at 176–77 (Jan. 21, 1998) (acknowledg-

ment by Customs that Christmas symbols/motifs including Santa Claus, Christmas trees,

Christmas stockings, and angel may justify ‘‘festive article’’ classification); Stipulated Judg-

ment (April 6, 2005), filed in Park B. Smith, Court No. 96–00344 (classifying as ‘‘festive ar-

ticles’’ holiday table linens and rugs with motifs including ‘‘Jingle Bells,’’ ‘‘Ringing Bells,’’

‘‘Poinsettia,’’ ‘‘Poinsettia Plaid,’’ ‘‘Christmas Holly,’’ ‘‘Holiday Blossom/Holly Blossom,’’ ‘‘Holly

Border,’’ and ‘‘Holly Leaves, aka Hollileaves Christmas, aka Hollileaves’’).

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ticles...:Articles for Christmas festivities and parts and accesso-

ries thereof: Other: Other.’’

Also included among the merchandise at issue is Wilton’s Christ-

mas Cookie Collection Set – a set of ten cookie cutters in the shapes

of Santa, a Christmas tree, a Christmas stocking, a nutcracker, a

candy cane, a snowman, a star, a drum, a rocking horse, and a teddy

bear. Like Santa, Christmas trees, and Christmas stockings (all dis-

cussed above), the nutcracker and the candy cane too are symbols

‘‘closely associated with’’ Christmas. See Park B. Smith, 347 F.3d at

927 (citation omitted); Midwest of Cannon Falls, 122 F.3d at 1428

(candy canes), 1425 (nutcrackers), 1429 (same).

Moreover, the

Santa, Christmas tree, Christmas stocking, nutcracker, and candy

cane motifs are so intrinsically linked to Christmas that the use of

cookie cutters featuring those motifs at other times of the year would

clearly be ‘‘aberrant.’’ See Park B. Smith, 347 F.3d at 927, 929.

The motifs of the remaining cookie cutters in the Christmas

Cookie Collection Set – an unadorned snowman, a star, a drum, a

rocking horse, and a teddy bear – are not similarly ‘‘closely associ-

ated with’’ Christmas, and their use at other times would not be ‘‘ab-

errant.’’ See Park B. Smith, 347 F.3d at 927, 929.

However, the

cookie cutters in the Christmas Cookie Collection Set are ‘‘put up in

sets for retail sale,’’ and thus must be classified together in accor-

See generally 32 Cust. Bull. & Dec. Nos.2/3 at 176 (Jan. 21, 1998) (acknowledgment by

Customs that Christmas symbols/motifs including nutcrackers justify ‘‘festive article’’ clas-

sification).

For example, a snowman – without more (such as a holly-decorated hat or muffler, and

a red and green color scheme) – is merely symbolic of the winter season in general. See

Def.’s Reply Brief at 3 (snowmen are merely seasonal); HQ 962252 (July 23, 1999) (noting

that ‘‘[t]he snowman is generally recognized as a symbol for the winter season, not neces-

sarily the Christmas holiday,’’ and stating that even ‘‘the presence of holly or a hat and

scarf, or other Christmas-related images do not automatically qualify the article’’ as a ‘‘fes-

tive article’’).

So too a star – without more – is just a basic geometric shape (like a circle, a square, a

triangle, or a heart). Thus, a curious young child learning his or her shapes might enjoy us-

ing a star cookie cutter year-round. See, e.g., Def.’s Reply Brief at 3 (star is merely a ‘‘gen-

eral shape[ ]’’); Def.’s Brief at 20 n.13 (arguing that, because a star ‘‘can be associated with

patriotism or have no particular association,’’ articles with star motif ‘‘can be used at any

time of the year’’). Indeed, in the Yearbook pages filed as exhibits with the Court, Wilton

advertises a child-safe Geometric Bite-Size [Cookie] Cutter Set (item # 2303–9310) – a set

of five cookie cutters in assorted basic geometric shapes. See Yearbook.

Similarly, a drum, a rocking horse, and a teddy bear are classic toys that might be re-

ceived as Christmas gifts. However, they are not so closely associated with Christmas that

the use of cookie cutters in those shapes would be deemed ‘‘aberrant’’ at other times of the

year. See Park B. Smith, 347 F.3d at 927, 929. As discussed in section III.F.4.d below, Wilton

itself recognizes that bakeware with rocking horse and teddy bear motifs has year-round

use. See Huggable Teddy Bear Pan (item # 2105–4943) (promoting pan as ‘‘being used all

year ’round’’); Rocking Horse Pan (item # 2105–2388) (suggesting that ‘‘Wild West pony or

Christmastime toy are just a couple of the themes to give this loveable cake’’). But see Stipu-

lated Judgment (April 6, 2005), filed in Park B. Smith, Court No. 96–00344 (classifying as

‘‘festive articles’’ holiday table linens and rugs with motifs including ‘‘Rocking Horse’’); cf.

Russ Berrie, 381 F.3d at 1335–36 (associating with Christmas ‘‘a teddy bear dressed in [a]

red and white Santa outfit and holding a present’’) (emphasis added).

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dance with their ‘‘essential character.’’ See generally section III.E,

supra (explaining classification of merchandise pursuant to GRI

3(b)).

Vis-a-vis the Christmas Cookie Collection Set, none of the illustra-

tive ‘‘essential character’’ factors listed in the Explanatory Notes to

GRI 3(b) is illuminating. That is, all the cookie cutters in the set are

basically the same – both individually, and in their respective rela-

tionships to the set as a whole – as to matters such as ‘‘the nature of

the material or component, its bulk, quantity, weight or value,

or...theroleofaconstituent material in relation to the use of the

goods.’’ See Explanatory Note VIII, GRI 3(b), HTSUS; Pl.’s Response

to the Court’s Letter of May 7, 2007 at 8 (asserting that all cookie

cutters in the subject set ‘‘are relatively equal in size, weight, cost

and utility,’’ and that ‘‘[a]ll cookie cutters contribute equally to the

set’’). On the other hand, the very name of the item – Christmas

Cookie Collection Set – and the way in which it is marketed by

Wilton and the retailers to which Wilton sells the merchandise are

compelling evidence that it is the association of the merchandise

with the Christmas holiday that drives the consumer’s decision to

purchase the set. See Better Home Plastics, 20 CIT at 224, 916 F.

Supp. at 1267; Conair Corp., 29 CIT at

, 2005 WL 1941649 at * 5

-*6.

Accordingly, under GRI 3(b) and the criteria articulated by the

Court of Appeals in Midwest of Cannon Falls and Park B. Smith,

Wilton’s Christmas Cookie Collection Set is properly classifiable un-

der HTSUS subheading 9505.10.50 as ‘‘Festive, carnival or other en-

tertainment articles...parts and accessories thereof: Articles for

Christmas festivities and parts and accessories thereof: Other:

Other.’’

Wilton’s claims as to its other Christmas merchandise are, how-

ever, unavailing. For example, the Treeliteful Pan is not the holiday-

specific item that its name suggests. Indeed, although Wilton’s Year-

book indicates that the pan is the company’s ‘‘most popular holiday

pan,’’ the second line of the two-line description of the item states:

In this instance, the end result – classification under heading 9505 – would be the

same if, as the Government suggests, the ‘‘essential character’’ of the set were instead to be

determined based on the number of cookie cutters in the set found to be prima facie classifi-

able as ‘‘festive articles’’ relative to the number of cookie cutters found not to be so classifi-

able. See Letter to Court from Defendant (May 16, 2007) at 3 (citing Explanatory Note X,

GRI 3(b), HTSUS (discussing example of classification of ‘‘[d]rawing kits’’)).

Specifically, as discussed above, five of the cookie cutters in the set – in the shapes of

Santa, a Christmas tree, a Christmas stocking, a nutcracker, and a candy cane – individu-

ally would be prima facie classifiable under heading 9505, while the other five – in the

shapes of a snowman, a star, a drum, a rocking horse, and a teddy bear – would not. The

fact that half of the items in the set would be individually prima facie classifiable under

heading 9505 would be determinative of the ‘‘essential character’’ of the set as a whole, at

least under the circumstances presented here (where, inter alia, the item is called the

Christmas Cookie Collection Set, and where the item is marketed exclusively in connection

with the Christmas holiday).

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‘‘Instructions are included [with the pan] for year-round decorating

ideas.’’ (Emphasis added.) To be sure, a cake baked in the pan could

be frosted or otherwise decorated to look like a Christmas tree. But,

by Wilton’s own admission (i.e., the promotional text quoted above),

the shape of the pan itself lacks the requisite ‘‘close association with’’

Christmas. See Park B. Smith, 347 F.3d at 927 (citation omitted).

Nor is there anything about the pan that would limit its use to

Christmas, or render its use ‘‘aberrant’’ at other times of the year.

See id. at 927, 929. It is simply a pan in the shape of a fir tree. See

Def.’s Supp. Brief at 7 (pan yields evergreen tree-shaped cake; to

look like Christmas tree, cake would require further decoration). The

Treeliteful Pan thus cannot be classified as a ‘‘festive article’’ under

heading 9505 pursuant to the criteria articulated by the Court of Ap-

peals in Midwest of Cannon Falls and Park B. Smith. It was prop-

erly classified by Customs under HTSUS subheading 7615.19.70, as

‘‘Table, kitchen or other household articles..., of aluminum;...:

Table, kitchen or other household articles...: Other: Cooking and

kitchen ware: Not enameled or glazed and not containing nonstick

interior finishes: Other.’’

Similarly, the Holiday House Pan is – as its name suggests–apan

in the shape of a house. There is nothing at all inherent in the shape

or design of the pan that is holiday-specific. It thus lacks any sort of

‘‘close association with’’ Christmas, apart from its name and its mar-

keting as seasonal merchandise.

See Park B. Smith, 347 F.3d at

927 (citation omitted); Def.’s Reply Brief at 3 (arguing that house

shape is merely a ‘‘general shape[ ]’’). Moreover, although Wilton il-

lustrates the item with a depiction of a cake decorated as a ginger-

bread house, there is nothing about the pan itself that would limit

its use to gingerbread or to Christmas, or that would render its use

‘‘aberrant’’ at other times of the year. See Park B. Smith, 347 F.3d at

927, 929. The Holiday House Pan thus cannot be classified as a ‘‘fes-

tive article’’ under heading 9505 pursuant to the criteria articulated

by the Court of Appeals in Midwest of Cannon Falls and Park B.

Smith. Like the Treeliteful Pan, the Holiday House Pan was prop-

erly classified by Customs under HTSUS subheading 7615.19.70, as

‘‘Table, kitchen or other household articles..., of aluminum;...:

Table, kitchen or other household articles...: Other: Cooking and

kitchen ware: Not enameled or glazed and not containing nonstick

interior finishes: Other.’’

Wilton’s case for ‘‘festive article’’ classification of its Star Nesting

Perimeter [Cookie] Cutter Set and its Gingerbread Perimeter

[Cookie] Cutter Set is no more compelling. As discussed in note 63

Indeed, even as to its marketing, the Holiday House Pan is promoted to have broad

appeal for use well beyond the ornately-decorated gingerbread house often seen at Christ-

mas. Wilton’s Yearbook emphasizes that the pan is accompanied by: ‘‘Five great design

ideas, including a fresh bread house.’’

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above, a star – without more – is simply a basic geometric shape.

Thus, a pre-schooler learning his or her shapes might enjoy using a

star-shaped cookie cutter all year long. And The Gingerbread Man is

a favorite children’s folk tale, timeless and told year-round. See, e.g.,

Nancy Nolte & Richard Scarry, The Gingerbread Man (Big Little

Golden Book).

In short, neither the basic star motif nor the motif of

a gingerbread family

are sufficiently ‘‘closely associated with’’

Christmas. See Park B. Smith, 347 F.3d at 927 (citation omitted).

Moreover, nothing about either the Star Nesting Perimeter Cut-

ters or the Gingerbread Perimeter Cutters would limit their use to

Christmas, or render ‘‘aberrant’’ their use at other times of the year.

See Park B. Smith, 347 F.3d at 927, 929; Def.’s Brief at 20 n.13 (ar-

ticles with star motif ‘‘can be used at any time of the year’’). Under

the criteria articulated by the Court of Appeals in Midwest of Can-

non Falls and Park B. Smith, the Star Nesting Perimeter Cutter Set

and the Gingerbread Perimeter Cutter Set therefore cannot be clas-

sified under HTSUS heading 9505, and were properly classified by

Customs under subheading 3924.10.50, as ‘‘Tableware, kitchenware,

other household articles and toilet articles, of plastics: Tableware

and kitchenware: Other.’’

Similarly lacking in merit is Wilton’s claim to ‘‘festive article’’ clas-

sification of the remaining items included in its North Pole Mini

Cookie Cutter Counter Display Unit and its Jolly Stamps! Cookie

Stamp Counter Display Unit, in the motifs of snowmen, gingerbread

men, and snowflakes. Like the snowmen and the gingerbread men

discussed above, snowflakes also are not ‘‘closely associated with’’

Christmas. See Park B. Smith, 347 F.3d at 927 (citation omitted).

The snowflake motif is not Christmas-specific, but – rather – sym-

bolic of the winter season in general. See, e.g., San Francisco Candle

Co., 26 CIT at 527, 206 F. Supp. 2d at 1310 (citing with approval

Commerce Department ruling that candles decorated with snow-

flakes are ‘‘seasonal’’ and therefore do not qualify for ‘‘holiday nov-

elty candle’’ exclusion from scope of antidumping order); Def.’s Brief

at 18–19 (‘‘articles directed to general or seasonal use’’ not classifi-

able as ‘‘festive articles’’) (citing Park B. Smith, 347 F.3d at 929).

In addition, nothing about the cookie cutters or the cookie stamp

would limit their use to Christmas, or render ‘‘aberrant’’ their use at

other times of the year. See Park B. Smith, 347 F.3d at 927, 929. Ac-

cordingly, under the criteria articulated by the Court of Appeals in

Midwest of Cannon Falls and Park B. Smith, the snowman and

snowflake cookie cutters included in Wilton’s North Pole Mini Cookie

In this telling of the classic tale, the Gingerbread Man taunts: ‘‘RUN, RUN as fast as

you can. You can’t catch me – I’m the Gingerbread Man!’’ Nancy Nolte & Richard Scarry,

The Gingerbread Man.

The Gingerbread Perimeter Cutter Set consists of four cookie cutters, in the shapes of

a Gingerbread man, woman, boy, and girl.

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Cutter Counter Display Unit, and the gingerbread man stamp in-

cluded in Wilton’s Jolly Stamps! Cookie Stamp Counter Display

Unit, cannot be classified under HTSUS heading 9505. Instead, they

were properly classified by Customs under subheading 3924.10.50,

as ‘‘Tableware, kitchenware, other household articles and toilet ar-

ticles, of plastics: Tableware and kitchenware: Other.’’

Wilton claims ‘‘festive article’’ classification for one final piece of

Christmas merchandise – item # 516–1007 – which is apparently a

cookie cutter or a cookie stamp. However, Wilton is unable to pro-

duce any evidence as to the specific nature of that item, to establish

that it is both ‘‘closely associated with’’ and used principally for

Christmas. See Park B. Smith, 347 F.3d at 927 (citation omitted);

Pl.’s Supp. Brief at 2 (indicating that Wilton has no evidence as to

item # 516–1007). Wilton’s claim to ‘‘festive article’’ classification of

item # 516–1007 must therefore fail. Based on the existing state of

the record, the merchandise was properly classified by Customs un-

der HTSUS subheading 3924.10.50, as ‘‘Tableware, kitchenware,

other household articles and toilet articles, of plastics: Tableware

and kitchenware: Other.’’

b. Valentine’s Day Merchandise

Wilton identifies five items as Valentine’s Day merchandise, and

asserts that all are classifiable as ‘‘festive articles’’ under heading

9505 – the Heart Tart Singles! pan (item # 2105–1139), the Heart

Springform Pan (item # 2105–2122), the Heart Pan Set (item

# 2105–2131), the Heart Giant Cookie Pan (item # 2105–6203), and

the Heart Comfort Grip [Cookie] Cutter (item # 2310–616). See Pl.’s

Exh. E–1; Pl.’s Amended Exh. F–1. However, Wilton’s claim is lack-

ing in merit.

All five items are imported and sold in conjunction with Valen-

tine’s Day, and feature a ‘‘heart’’ motif. The four pans produce baked

goods in the classic shape of a heart, and the cookie cutter slices

cookie dough into classic heart shapes. But none of the items has

any distinctive thematic design elements–a‘‘Happy Valentine’s

Day!’’ greeting, for example – to tie the merchandise specifically to

Valentine’s Day.

Without more, the heart motif alone simply is not

sufficiently ‘‘closely associated with’’ Valentine’s Day (or, for that

matter, any other particular festive occasion). See Park B. Smith,

347 F.3d at 927 (citation omitted); Russ Berrie & Co. v. United

The Heart-Shaped Wreath at issue in Midwest of Cannon Falls was classified as a

‘‘festive article.’’ But that merchandise was much more than just a basic heart shape. In

contrast to the bakeware and cookie cutters at issue here, the wreath in Midwest of Cannon

Falls was ‘‘a metal wreath with dozens of small, heart-shaped decorations attached to it,

painted bright red, with a hook, allowing the item to hang from a wall.’’ See Midwest of Can-

non Falls, 20 CIT at 132; see also 32 Cust. Bull. & Dec. Nos. 2/3 at 177 (Jan. 21, 1998) (in

some cases, heart pattern/motif may justify ‘‘festive article’’ classification).

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States, 23 CIT 429, 57 F. Supp. 2d 1184 (1999) (heart-shaped terra

cotta container filled with wax did not fall within ‘‘holiday novelty

candle’’ exclusion from scope of antidumping order).

Nor would the use of the subject bakeware at times other than

Valentine’s Day be ‘‘aberrant.’’ See Park B. Smith, 347 F.3d at 927,

929. As discussed above, a young child learning different shapes

might enjoy using Wilton’s Star Nesting Perimeter [Cookie] Cutters

year-round, to make cookies shaped like stars. Similarly, the child

could use the heart-themed cutter at issue here to make cookies in a

second basic shape – a heart. As to the four pans, Wilton itself pro-

motes year-round use of its heart-shaped bakeware. For example,

touting its Heart Pans (item # 2105–5168) – not at issue in this ac-

tion, but comparable in all relevant respects to the four heart-shaped

baking pans here in question – Wilton’s Yearbook emphasizes: ‘‘For

graceful expressions of love on Valentine’s Day or anytime....’’(Em-

phasis added.)

Accordingly, under the criteria articulated by the Court of Appeals

in Midwest of Cannon Falls and Park B. Smith, Customs properly

classified the Heart Tart Singles! pan, the Heart Pan Set, and the

Heart Giant Cookie Pan under HTSUS subheading 7615.19.70, as

‘‘Table, kitchen or other household articles..., of aluminum;...:

Table, kitchen or other household articles...: Other: Cooking and

kitchen ware: Not enameled or glazed and not containing nonstick

In Russ Berrie, the court sustained Commerce’s finding that ‘‘the heart shape of [Russ

Berrie’s] candle does not limit its use to a particular holiday.’’ See Russ Berrie,23CITat

439, 57 F. Supp. 2d at 1194. The court noted that, in support of its determination, Com-

merce quoted one of its prior decisions:

Nothing inherent in the design of the subject candles would limit their use to a specific

occasion....[T]hesole distinguishing characteristic of the Sweetheart candle is its pink

heart. [However,] the year-round ubiquity of this particular shape renders it meaning-

less as a holiday scene or symbol.

Russ Berrie, 23 CIT at 439, 57 F. Supp. 2d at 1194 (citation omitted). The court also quoted

another prior decision cited in Commerce’s determination, to the same effect:

The familiar two-lobed heart design is ubiquitous as a symbol of affection or familial or

romantic love....[I]t is used throughout the year in, for example, greeting cards ....

Russ Berrie, 23 CIT at 439–40, 57 F. Supp. 2d at 1194 (citation omitted). Elsewhere, the

court concluded: ‘‘Plaintiff cites no authority, and the Court has found none, holding that

the heart is a symbol solely associated with Valentine’s Day because of its distinguishable

shape and color.’’ Russ Berrie, 23 CIT at 444, 57 F. Supp. 2d at 1197.

Without more, a heart is simply a basic geometric shape. See n.63, supra (noting that ‘‘a

star – without more – is just a basic geometric shape (like a circle, a square, a triangle, or a

heart). Thus, a curious young child learning his or her shapes might enjoy using a star

cookie cutter year-round.’’) (emphasis added); Def.’s Reply Brief at 3 (heart is merely a ‘‘gen-

eral shape[ ]’’).

Cf. Russ Berrie, 57 F. Supp. 2d at 1195 n.9 (noting that ‘‘it is unlikely that during July

a consumer would purchase a Santa Claus shaped candle ...as compared to a heart-

shaped candle....[I]f, in July, one purchases hears and flowers for one’s spouse, the likely

intent is quite evident; on the other hand, a July gift of a Santa Claus figure will surely, at

best, give rise to puzzlement.’’).

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interior finishes: Other.’’ Similarly, the Heart Springform Pan was

properly classified under HTSUS subheading 7323.99.70, as ‘‘Table,

kitchen or other household articles...,ofironorsteel;...:Other:

Other: Not coated or plated with precious metal: Other:

Cookingware.’’ And the Heart Comfort Grip [Cookie] Cutter was

properly classified under HTSUS subheading 7323.93.00, as ‘‘Table,

kitchen or other household articles...,ofironorsteel;...Other: Of

stainless steel.’’

c. Halloween Merchandise

According to Wilton, 15 of the items still at issue in this action are

Halloween merchandise, properly classifiable as ‘‘festive articles’’ un-

der heading 9505. See Pl.’s Exh. E–1; Pl.’s Amended Exh. F–1. As

discussed elsewhere above, the items at issue generally are imported

and sold in conjunction with Halloween.

Several of the Halloween items – including Wilton’s Mini Pumpkin

Pan (item # 2105–1499), its Jack-O-Lantern Giant Cookie Pan (item

# 2105–6207), and its Pumpkin Cookie Stamp (item # 2307–1003) –

feature the traditional ‘‘jack-o-lantern’’ motif which is ‘‘closely associ-

ated with’’ Halloween. See Park B. Smith, 347 F.3d at 927 (citation

omitted); Midwest of Cannon Falls, 122 F.3d at 1429 (jack-o-lantern);

Park B. Smith, 347 F.3d at 929 (jack-o-lantern); Russ Berrie, 381

F.3d at 1335–36 (jack-o-lantern).

Moreover, jack-o-lanterns are so

intrinsically linked to Halloween that the use of the jack-o-lantern

cookie stamp or either of the jack-o-lantern shaped baking pans at

other times of the year would clearly be ‘‘aberrant.’’ See Park B.

Smith, 347 F.3d at 927, 929. Accordingly, under the criteria articu-

lated by the Court of Appeals in Midwest of Cannon Falls and Park

B. Smith, both the Mini Pumpkin Pan and the Jack-O-Lantern Gi-

ant Cookie Pan, as well as the Pumpkin Cookie Stamp, are properly

classifiable as ‘‘festive articles,’’ under subheading 9505.90.60 of the

HTSUS.

Like its Pumpkin Cookie Stamp, Wilton’s Ghost Cookie Stamp

(item # 2307–1013), its Spider Cookie Stamp (item # 2307–1004),

and its Bat Cookie Stamp (item # 2307–1005) also feature motifs

that are ‘‘closely associated with’’ Halloween. See Park B. Smith, 347

F.3d at 927 (citation omitted); id. at 926 (ghosts); Russ Berrie, 381

F.3d at 1336 (ghosts); Michael Simon Design,30CITat

, 452 F.

Supp. 2d at 1325–26 (spiders and bats).

Further, because ghosts,

Indeed, the parties’ Stipulation in this action provides for the classification of Wilton’s

Glowing Pumpkin Fun Pix (item # 2113–1287) – which have a jack-o-lantern motif – as

‘‘festive articles’’ under heading 9505. See Stipulation; see generally 32 Cust. Bull. & Dec.

Nos. 2/3 at 176 (Jan. 21, 1998) (acknowledgment by Customs that Halloween symbols/

motifs including jack-o-lanterns may justify ‘‘festive article’’ classification).

See also Stipulated Judgment (April 6, 2005), filed in Park B. Smith, Court No. 96–

00344 (classifying as ‘‘festive articles’’ holiday table linens and rugs with motifs including

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spiders, and bats are so intrinsically linked to Halloween, the use of

cookie stamps with those motifs at other times of the year would be

clearly ‘‘aberrant.’’ See Park B. Smith, 347 F.3d at 927, 929. Accord-

ingly, the Ghost Cookie Stamp, the Spider Cookie Stamp, and the

Bat Cookie Stamp – like the Pumpkin Cookie Stamp – are properly

classifiable under HTSUS subheading 9505.90.60, under the criteria

articulated by the Court of Appeals in Midwest of Cannon Falls and

Park B. Smith.

The motifs reflected in Wilton’s Monster Party Pan (item # 2105–

2039) – a witch and a vampire, over a cauldron of witches’ brew – are

just as ‘‘closely associated with’’ Halloween. See Park B. Smith, 347

F.3d at 927 (citation omitted); Russ Berrie, 381 F.3d at 1336 (witches

and monsters).

In addition, because witches and vampires are so

intrinsically linked to Halloween, the use of this bakeware at any

other time of the year would be ‘‘aberrant.’’ See Park B. Smith, 347

F.3d at 927, 929. Accordingly, under the criteria articulated by the

Court of Appeals in Midwest of Cannon Falls and Park B. Smith,

like the other Halloween merchandise discussed above, Wilton’s

Monster Party Pan is also properly classifiable under HTSUS sub-

heading 9505.90.60, ‘‘Festive, carnival or other entertainment ar-

ticles...:Other: Other.’’

Wilton’s Halloween Mini [Cookie] Cutter CDU [Counter Display

Unit] (96 ct.) (item # 2301–1035) includes an assortment of 96 min-

iature cookie cutters in five different shapes – specifically, in the

shapes of bats and ghosts, the word ‘‘BOO,’’ and two different styles

of jack-o-lanterns (a Happy Jack-o-Lantern and a Scary Jack-o-

Lantern). See Letter to Court from Counsel for Plaintiff (May 15,

2007) (correcting Pl.’s Response to the Court’s Letter of May 7, 2007

at 4–5). Like bats, ghosts, and jack-o-lanterns (discussed above), the

word ‘‘BOO’’ is also ‘‘closely associated with’’ Halloween. See Park B.

Smith, 347 F.3d at 927 (citation omitted); 32 Cust. Bull. & Dec. Nos.

2/3 at 177 (Jan. 21, 1998) (acknowledgment by Customs that Hallow-

een symbols/motifs including the word ‘‘Boo’’ may justify ‘‘festive ar-

ticle’’ classification). Further, use of the bat, ghost, jack-o-lantern,

and ‘‘BOO’’ mini-cookie cutters at times of the year other than Hal-

loween would be ‘‘aberrant.’’ See Park B. Smith, 347 F.3d at 927, 929.

Accordingly, like the other Halloween merchandise discussed above,

the mini-cookie cutters in the shapes of jack-o-lanterns, bats, ghosts,

and the word ‘‘BOO’’ included in Wilton’s Halloween Mini Cutter

Counter Display Unit are properly classifiable as ‘‘festive articles’’

‘‘Bats & Ghosts’’); 32 Cust. Bull. & Dec. Nos. 2/3 at 177 (Jan. 21, 1998) (acknowledgment by

Customs that Halloween symbols/motifs including ghosts may justify ‘‘festive article’’ classi-

fication).

See generally 32 Cust. Bull. & Dec. Nos. 2/3 at 177 (Jan. 21, 1998) (acknowledgment by

Customs that Halloween symbols/motifs including witches may justify ‘‘festive article’’ clas-

sification).

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under HTSUS subheading 9505.90.60, pursuant to the criteria set

forth by the Court of Appeals in Midwest of Cannon Falls and Park

B. Smith.

Also included among the Halloween items at issue is Wilton’s

Spooky Cookie Cutter Set (item # 2304–9210), which includes cookie

cutters in ten different shapes, including a witch, a ghost, a bat, a

spider, two different jack-o-lanterns, a skeleton head, a Franken-

stein head, and the words ‘‘BOO’’ and ‘‘EEK.’’ Like jack-o-lanterns,

witches, ghosts, bats, spiders, and the word ‘‘BOO’’ (all discussed

above), so too skeleton heads, Frankenstein heads, and the word

‘‘EEK’’ are ‘‘closely associated with’’ Halloween. See Park B. Smith,

347 F.3d at 927 (citation omitted); Russ Berrie, 381 F.3d at 1335–36

(Frankenstein monster and monsters’ heads); 32 Cust. Bull. & Dec.

Nos. 2/3 at 177 (Jan. 21, 1998) (Halloween symbols/motifs including

ghosts, skeletons, witches, and the word ‘‘Boo’’ may justify ‘‘festive

article’’ classification).

In addition, like the merchandise in the mo-

tifs of jack-o-lanterns, witches, ghosts, bats, spiders, and the word

‘‘BOO’’ (discussed above), the use of cookie cutters in the shapes of a

witch, a ghost, a bat, a spider, a jack-o-lantern, a skeleton head, a

Frankenstein head, and the words ‘‘BOO’’ and ‘‘EEK’’ at times of the

year other than Halloween would be ‘‘aberrant.’’ See Park B. Smith,

347 F.3d at 927, 929.

To the extent that all the cookie cutters in the Spooky Cookie Cut-

ter Set would be individually classifiable under heading 9505 (as

suggested above), the set as a whole is classifiable under heading

9505 without resort to a determination of the ‘‘essential character’’ of

the set pursuant to GRI 3(b). See generally section III.E, supra (ex-

plaining classification of merchandise pursuant to GRI 3(b)). More-

over, even if several of the cookie cutters individually would not be

prima facie classifiable under heading 9505, the set as a whole

would nevertheless merit classification under that heading.

As with Wilton’s Christmas Cookie Collection Set (discussed in

section III.F.4.a, above), none of the illustrative ‘‘essential character’’

factors set forth in the Explanatory Notes to GRI 3(b) is helpful. In

other words, all the cookie cutters in the Spooky Cookie Cutter Set

are basically the same – both individually, and in their respective re-

lationships to the set as a whole – as to matters such as ‘‘the nature

of the material or component, its bulk, quantity, weight or value,

or...theroleofaconstituent material in relation to the use of the

See generally 32 Cust. Bull. & Dec. Nos. 2/3 at 177 (Jan. 21, 1998) (acknowledgment by

Customs that Halloween symbols/motifs justifying ‘‘festive article’’ classification may in-

clude words such as ‘‘Happy Halloween’’ and ‘‘Boo’’).

‘‘Eek!’’ is an exclamation of fear or horror – such as what one shrieks when startled by a

ghost’s ‘‘Boo!’’ or frightened by some haunting Halloween sight. See, e.g., Merriam-Webster’s

Collegiate Dictionary (11

ed.) (defining ‘‘eek’’ as an interjection ‘‘used to express surprise

or dismay’’); The New Oxford American Dictionary 543 (Oxford Univ. Press 2001) (defining

‘‘eek’’ as an exclamation of ‘‘alarm, horror, or surprise’’).

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goods.’’ See Explanatory Note VIII, GRI 3(b), HTSUS; cf. Pl.’s Re-

sponse to the Court’s Letter of May 7, 2007 at 8 (asserting that all

cookie cutters in the Christmas Cookie Collection Set ‘‘are relatively

equal in size, weight, cost and utility,’’ and that ‘‘[a]ll cookie cutters

[in the Christmas Cookie Collection Set] contribute equally to the

set’’).

On the other hand, the very name of the item – the Spooky Cookie

Cutter Set – and the manner in which it is marketed by Wilton and

the retailers to which Wilton sells the merchandise are compelling

evidence that it is the association of the merchandise with Hallow-

een festivities that is the impetus for the consumer’s decision to pur-

chase the set. See Better Home Plastics, 20 CIT at 224, 916 F. Supp.

at 1267; Conair Corp.,29CITat

, 2005 WL 1941649 at * 5 - * 6.

Accordingly, under GRI 3(b) and the criteria articulated by the Court

of Appeals in Midwest of Cannon Falls and Park B. Smith, Wilton’s

Spooky Cookie Cutter Set is properly classifiable as a ‘‘festive ar-

ticle’’ under HTSUS subheading 9505.90.60.

Wilton does not fare as well on its claims as to its other Halloween

merchandise. For example, notwithstanding the name of the item,

the Jack-O-Lantern Nesting [Cookie] Cutter Set (item # 2303–191)

– like the Pumpkin Pie Pan (item # 2105–3970) – features not a

jack-o-lantern motif, but rather that of a plain pumpkin.

Unlike a

jack-o-lantern, a plain, basic pumpkin is simply a symbol of the au-

tumn harvest season generally. It thus lacks the requisite ‘‘close as-

sociation with’’ Halloween. See Park B. Smith, 347 F.3d at 927 (cita-

tion omitted); Def.’s Brief at 18–19 (‘‘articles directed to general or

seasonal use’’ not classifiable as ‘‘festive articles’’) (citing Park B.

Smith, 347 F.3d at 929), 20 n.13 (pumpkin motif not restricted to

Halloween or other festive occasion; pumpkin is ‘‘associated with the

fall season or harvest in general’’); Def.’s Reply Brief at 3 (pumpkin

motif is merely seasonal); Pl.’s Brief at 5 (conceding that pumpkin

motif is ‘‘traditionally associated with Halloween or fall harvest cel-

ebrations’’) (emphasis added).

Moreover, nothing about the Jack-O-Lantern Nesting Cutter Set

or the Pumpkin Pie Pan would limit their use to Halloween, or ren-

Again, the end result – classification under heading 9505 – would be the same if, as

the Government suggests, the ‘‘essential character’’ of the set were instead to be determined

based on the number of cookie cutters in the set found to be prima facie classifiable as ‘‘fes-

tive articles’’ relative to the number of cookie cutters found not to be so classifiable. See Let-

ter to Court from Defendant (May 16, 2007) at 3 (citing Explanatory Note X, GRI 3(b),

HTSUS (discussing example of classification of ‘‘[d]rawing kits’’)).

It does appear that there is a jack-o-lantern face on the handle of the largest of the

nesting cookie cutters. However, those jack-o-lantern features would not imprint onto cook-

ies. Thus, even the use of that one particular cookie cutter would not be limited to Hallow-

een.

See also Def.’s Supp. Brief at 7 (arguing that pan in shape of plain pumpkin may be

used to bake plain apple-shaped cake, but would require further decoration to look like

jack-o-lantern).

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der ‘‘aberrant’’ their use throughout the autumn of the year. See Park

B. Smith, 347 F.3d at 927, 929; Def.’s Brief at 20 n.13 (use of

pumpkin-shaped pan not restricted to Halloween or other festive oc-

casion). Wilton’s Jack-O-Lantern Nesting Cutter Set and its Pump-

kin Pie Pan thus cannot be classified as ‘‘festive articles’’ under head-

ing 9505 pursuant to the criteria articulated by the Court of Appeals

in Midwest of Cannon Falls and Park B. Smith. The cookie cutters

were properly classified by Customs under HTSUS subheading

3924.10.50 as ‘‘Tableware, kitchenware, other household articles and

toilet articles, of plastics: Tableware and kitchenware: Other,’’ and

the Pumpkin Pie Pan was properly classified by Customs under

HTSUS subheading 7615.19.70 as ‘‘Table, kitchen or other household

articles...,ofaluminum;...:Table,kitchen or other household ar-

ticles...:Other: Cooking and kitchen ware: Not enameled or glazed

and not containing nonstick interior finishes: Other.’’

Wilton’s case for ‘‘festive article’’ classification of its Scarecrow

Cookie Stamp (item # 2307[00ad]1036) and its Maple Leaf Cookie

Stamp (item # 2307–1037) is just as weak. Neither the scarecrow

motif nor the maple leaf motif can be said to have the requisite close

association with Halloween. See Park B. Smith, 347 F.3d at 927 (ci-

tation omitted). Instead, they are associated with the autumn and

harvest seasons generally. See, e.g., Def.’s Reply Brief at 3 (motifs of

scarecrows and leaves are merely seasonal). Indeed, Wilton markets

the two cookie stamps not as Halloween merchandise, but as ‘‘Au-

tumn’’ merchandise. And the items are described in the Wilton Year-

book as seasonal merchandise: ‘‘Imprint a fun fall design on your

homemade cookie dough...’’ See Wilton Yearbook (emphasis

added).

Further, nothing about either the Scarecrow Cookie Stamp or the

Maple Leaf Cookie Stamp would limit its use to Halloween, or ren-

der ‘‘aberrant’’ its use throughout the months of fall. See Park B.

Smith, 347 F.3d at 927, 929. Under the criteria articulated by the

Court of Appeals in Midwest of Cannon Falls and Park B. Smith,

Wilton’s Scarecrow Cookie Stamp and its Maple Leaf Cookie Stamp

therefore cannot be classified under HTSUS heading 9505, and were

properly classified by Customs under subheading 3924.10.50 as

‘‘Tableware, kitchenware, other household articles and toilet articles,

of plastics: Tableware and kitchenware: Other.’’

In addition to the articles discussed above, Wilton also claims ‘‘fes-

tive article’’ classification for two final pieces of Halloween merchan-

dise – item # 516–1002 and item # 2307–1053 – which are appar-

ently cookie cutters and/or cookie stamps. Wilton is unable to

Not only is the maple leaf identified with autumn and the harvest season in general, it

has other significant associations as well. For example, the maple leaf is also the national

symbol of Canada, and is the focal point of that country’s flag. And, as any avid hockey fan

knows, it is the symbol of Toronto’s team, the Maple Leafs.

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produce any evidence as to the specific nature of those items, how-

ever, to establish that they are ‘‘closely associated with’’ and used

principally for Halloween. See Park B. Smith, 347 F.3d at 927 (cita-

tion omitted), 929; Pl.’s Supp. Brief at 2 (indicating that Wilton has

no evidence as to item # 516–1002 and item # 2307–1053). Accord-

ingly, Wilton’s claim to ‘‘festive article’’ classification of the two items

must fail. Based on the existing record, both items were properly

classified by Customs under HTSUS subheading 3924.10.50, as

‘‘Tableware, kitchenware, other household articles and toilet articles,

of plastics: Tableware and kitchenware: Other.’’

d. Birthday and Other Merchandise

Wilton brazenly contends that most of the bakeware at issue in

this action is birthday merchandise classifiable as ‘‘festive articles’’

under heading 9505. See Pl.’s Exh. E–1. Wilton thus implicitly as-

serts that 21 of its bakeware items are both ‘‘closely associated with’’

and principally used for birthdays, such that their use at other times

of the year would be ‘‘aberrant.’’ See Park B. Smith, 347 F.3d at 927,

929; Pl.’s Brief at 20 (asserting that dinosaur, football, and doll mo-

tifs ‘‘would only be used in connection with a birthday celebration’’).

As to virtually all of those pieces of bakeware, however, Wilton’s

claims simply strain credulity beyond all reason.

In fact, only one of the 21 pieces of ‘‘birthday’’ bakeware can rea-

sonably be said to be ‘‘closely associated with’’ and principally used

for birthdays. See Park B. Smith, 347 F.3d at 927, 929. Wilton’s

Happy Birthday Pan (item # 2105–1073) is a round aluminum pan

with a broadly-scalloped edge, and the phrase ‘‘HAPPY BIRTHDAY’’

in very large letters molded into the pan itself (so that the raised

message covers virtually the entire face of the baked cake). As the

Yearbook description of the item notes, ‘‘The message is loud and

clear!’’ See Yearbook. The ‘‘Happy Birthday’’ greeting which is im-

printed into the cake pan itself is – by definition – ‘‘closely associ-

ated’’ with birthdays, and would render the use of that cake pan at

any other time patently ‘‘aberrant.’’

Thus, under the criteria ar-

ticulated by the Court of Appeals in Midwest of Cannon Falls and

Park B. Smith, Wilton’s Happy Birthday Pan is properly classifiable

under HTSUS subheading 9505.90.60, ‘‘Festive, carnival or other en-

tertainment articles...:Other: Other.’’

See generally 32 Cust. Bull. & Dec. Nos. 2/3 at 177–78 (Jan. 21, 1998) (acknowledg-

ment by Customs that symbols/motifs justifying ‘‘festive article’’ classification may include

words, such as ‘‘Noel,’’ ‘‘Peace on Earth,’’ ‘‘Merry Christmas,’’ ‘‘Ho Ho Ho,’’ ‘‘[w]ords from well

known Christmas Carols and Christmas songs,’’ ‘‘Boo,’’ ‘‘Happy Halloween,’’ ‘‘Happy Thanks-

giving,’’ ‘‘Happy Easter,’’ and ‘‘Happy Valentine’s Day’’).

Since – like Christmas, Halloween, Thanksgiving, Easter, and Valentine’s Day – birth-

days are ‘‘festive’’ occasions for purposes of heading 9505 (see section III.C, supra), the

phrase ‘‘Happy Birthday’’ is similarly a symbol/motif justifying ‘‘festive article’’ classification

in appropriate circumstances.

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In addition to its Happy Birthday Pan, Wilton also claims as ‘‘fes-

tive articles’’ related to birthdays its Stand-Up Cuddly Bear Pan

(item # 2105–603), its Partysaurus Pan (item # 2105–1280), its

Mini Ball Pan (item # 2105–1760), its Noah’s Ark Pan (item

# 2105–2026), its Megasaurus Pan (item # 2105–2028), its En-

chanted Castle Pan (item # 2105–2031), its Sports Utility Vehicle

Pan (item # 2105–2034), its Rocking Horse Pan (item # 2105–2388),

its Choo-Choo Train Pan (item # 2105–2861), its Mini Wonder Mold

(item # 2105–3020), its Flower Power Cake Pan (item # 2105–

3055), its Blue’s Clues Cake Pan (item # 2105–3060), its A Bug’s Life

Cake Pan (item # 2105– 3203), its Big Bird With Banner Pan (item

# 2105–3654), its Huggable Teddy Bear Pan (item # 2105–4943), its

First and Ten Football Pan (item # 2105–6504), its Sports Ball Pan

(item # 2105– 6506), and its New Barbie Cake Pan with Facemaker

(item # 2105–9815, now item # 2105–8934 and item # 504–8934).

There is, however, nothing about any of those 18 pieces of

bakeware that is ‘‘closely associated with’’ birthdays (or, for that

matter, any other ‘‘festive’’ occasion).

See Park B. Smith, 347 F.3d

at 927 (citation omitted). Indeed, Wilton sells the pans as either

‘‘Novelty Pans’’ or ‘‘Famous Character’’ pans, depending on the item.

Moreover, there is nothing whatsoever about any of the bakeware

that would limit its use to birthdays (or to any other ‘‘festive’’ occa-

sion), or that would render ‘‘aberrant’’ its use on a routine basis

throughout the year. See Park B. Smith, 347 F.3d at 927, 929.

In Nicholson II, AP–97–110 & AP–97–113 (CITT Sept. 2, 1998), the CITT ruled that

plastic figurines of characters including ‘‘R2-D2,’’ ‘‘Simba,’’ and ‘‘The Lion King’’ which were

used as decorations for children’s birthday cakes were ‘‘festive articles’’ under heading 9505.

In its ruling, the CITT apparently gave great weight to the importer’s argument that

‘‘traditions are created continuously’’ and that ‘‘characters which are popular this year may

be popular for a few years before becoming unpopular and eventually being replaced by

other characters.’’ The CITT wrote:

[T]he Tribunal agrees that traditions are created continuously. As a result cake decora-

tions which may be associated with a birthday one year may not necessarily be associ-

ated with such an event the following year. Furthermore, in the Tribunal’s view, there

are many factors which could influence what cake decorations are traditionally associ-

ated with a birthday, for example, religion. As such, the Tribunal agrees with the [im-

porter’s] representative that the use of the word ‘traditionally’ [in the Explanatory Notes

to Heading 9505] cannot stop the goods in issue from being classified in heading No.

95.05.

Nicholson II, AP–97–110 & AP–97–113 (CITT Sept. 2, 1998). Cf. Park B. Smith, 122 F.2d at

1428 (‘‘embrac[ing] the trial court’s notion that absent legislative intent to the contrary, the

term ‘Christmas ornament’ [in subheading 9505.10] should be construed to embrace evolv-

ing consumer tastes and not be limited to traditional Christmas themes’’) (citation omitted).

However, Nicholson II provides no support for the proposition that the motifs of the pans

at issue here – motifs such as Noah’s Ark, a Sports Utility Vehicle, a Choo-Choo Train,

Blue’s Clues, and Barbie, to name but a few – should be deemed ‘‘festive articles’’ under the

law of this country. Unlike the U.S. courts, the CITT apparently does not limit ‘‘festive ar-

ticles’’ classification to only those items whose use or display would be ‘‘aberrant’’ at times

other than a particular ‘‘festive’’ occasion. Park B. Smith, 347 F.3d at 927, 929.

As discussed in section III.F.4.a above, cookie cutters in the shapes of a rocking horse

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Accordingly, under the criteria articulated by the Court of Appeals

in Midwest of Cannon Falls and Park B. Smith, the Stand-Up Cud-

dly Bear Pan, the Partysaurus Pan, the Mini Ball Pan, the Noah’s

Ark Pan, the Megasaurus Pan, the Enchanted Castle Pan, the

Sports Utility Vehicle Pan, the Choo-Choo Train Pan, the Mini Won-

der Mold, the Flower Power Cake Pan, the Blue’s Clues Cake Pan,

the A Bug’s Life Cake Pan, the Big Bird With Banner Pan, the Hug-

gable Teddy Bear Pan, the First and Ten Football Pan, the Sports

Ball Pan, and the New Barbie Cake Pan with Facemaker cannot be

classified as ‘‘festive articles’’ under HTSUS heading 9505. All the

items were properly classified by Customs under subheading

7615.19.70, as ‘‘Table, kitchen or other household articles...,ofalu-

minum;...: Table, kitchen or other household articles...: Other:

Cooking and kitchen ware: Not enameled or glazed and not contain-

ing nonstick interior finishes: Other.’’

In addition to the bakeware listed above, Wilton identifies another

two cake pans as merchandise associated with birthdays as well as

other events – the Yearbook Flashback! T-Shirt Pan (item # 2105–

2347), said to be associated with birthdays, graduations, and ‘‘sports

cheers,’’ and the Horseshoe Pan (item # 2105–3254), said to be asso-

ciated with birthdays, graduations, and ‘‘good luck’’ parties. The first

item is a pan in the shape of a basic t-shirt, which Wilton depicts

decorated variously as a plain t-shirt, a striped baseball jersey, a

football jersey, an infant’s ‘‘onesie,’’ and a toddler’s overalls-style

jumper. And, as its name suggests, the Horseshoe Pan is a pan in the

shape of a basic horseshoe.

There is, however, nothing about either a t-shirt motif or a horse-

shoe motif that is ‘‘closely associated with’’ birthdays, or any other

‘‘festive’’ occasion. See Park B. Smith, 347 F.3d at 927 (citation omit-

ted). Moreover, there is nothing whatsoever about either piece of

bakeware that would limit its use to birthdays or any other ‘‘festive’’

occasion, or that would render ‘‘aberrant’’ its use on a routine basis

throughout the year. See Park B. Smith, 347 F.3d at 927, 929. In-

deed, the two pans are sold simply as ‘‘Novelty Pans.’’ Accordingly,

under the criteria articulated by the Court of Appeals in Midwest of

Cannon Falls and Park B. Smith, neither the Yearbook Flashback!

T-Shirt Pan nor the Horseshoe Pan is classifiable as a ‘‘festive ar-

ticle’’ under HTSUS heading 9505. Both items were properly classi-

fied by Customs under subheading 7615.19.70, as ‘‘Table, kitchen or

other household articles..., of aluminum;...: Table, kitchen or

and a teddy bear are included in Wilton’s Christmas Cookie Collection Set, which is classi-

fied as a ‘‘festive article’’ under heading 9505. However, that merchandise is classified in ac-

cordance with the ‘‘essential character’’ of the set as a whole, pursuant to GRI 3(b). See GRI

3(b), HTSUS. As section III.F.4.a notes, rocking horse and teddy bear motifs themselves are

not ‘‘closely associated with’’ any ‘‘festive’’ occasion. Nor would the use of merchandise incor-

porating such motifs be ‘‘aberrant’’ at any time of the year.

132

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other household articles...:Other: Cooking and kitchen ware: Not

enameled or glazed and not containing nonstick interior finishes:

Other.’’

IV. Conclusion

For all the reasons set forth above, Plaintiff ’s Motion for Summary

Judgment is granted in part and denied in part, and Defendant’s

Cross-Motion for Summary Judgment is granted in part and denied

in part.

Judgment will enter accordingly.

䉬

Slip Op. 07–94

ILTON INDUSTRIES,INC., Plaintiff,v.UNITED STATES, Defendant.

Court No. 00–11–00528

JUDGMENT

This action having been duly submitted for decision; and the

Court, after due deliberation, having rendered a decision herein;

NOW, therefore, in conformity with said decision, it is

ORDERED, ADJUDGED, and DECREED that Plaintiff ’s Motion

for Summary Judgment is granted in part and denied in part; and it

is further

ORDERED, ADJUDGED, and DECREED that Defendant’s Cross-

Motion for Summary Judgment is granted in part and denied in

part; and it is further

ORDERED, ADJUDGED, and DECREED that the U.S. Customs

Service’s classification under subheadings 3924.10.20, 3924.10.50,

and 3926.90.98 of the Harmonized Tariff Schedule of the United

States (‘‘HTSUS’’) (1999) of the 9⬙ Square Separator Plate (item

# 302–1020), the 13⬙ Square Separator Plate (item # 302–1063), the

7⬙ Hexagon Separator Plate (item # 302–1705), the 10⬙ Hexagon

Separator Plate (item # 302–1748), the 13⬙ Hexagon Separator Plate