Russ Berrie & Co. v. United States

Slip Op. 18-108
UNITED STATES COURT OF INTERNATIONAL TRADE
RUSS BERRIE & COMPANY, INC.,
Plaintiff,
Before: Timothy C. Stanceu, Chief Judge
v.
Court No. 93-00391
UNITED STATES,
Defendant.
OPINION AND ORDER
[Determining, upon cross motions for summary judgment, the tariff classifications of various
articles]
Dated: August 30, 2018
Daniel J. Gluck, Simon Gluck & Kane LLP, of New York, NY, for plaintiff Russ
Berrie & Company, Inc. With him on the brief were Christopher M. Kane and Mariana del Rio
Kostenwein.
Beverly A. Farrell, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of New York, NY, for defendant United States. With her on the brief
were Joyce R. Branda, Acting Assistant Attorney General, and Amy M. Rubin, Assistant
Director. Of counsel on the brief was Sheryl A. French, Office of the Assistant Chief Counsel,
U.S. Customs and Border Protection.
Stanceu, Chief Judge: Plaintiff Russ Berrie & Company, Inc. (“Russ Berrie & Co.”)
brought this action to challenge the tariff classifications by the United States Customs Service,
predecessor of U.S. Customs and Border Protection (“Customs”), of various articles it imported
in 1992.
Before the court are cross-motions for summary judgment. Concluding that there are no
genuine issues of material fact, the court grants in part, and denies in part, each motion.
Court No. 93-00391 Page 2
I. BACKGROUND
This action, which was commenced in 1993, has a long history and includes claims
regarding the tariff classification of a large number of articles. See Summons (July 14, 1993),
ECF No. 1; Compl. (Mar. 17, 2010), ECF No. 28. Over the course of the litigation, the parties
have agreed to the disposition of plaintiff’s claims as to certain articles. At the court’s request,
the parties consulted with the objective of identifying the articles for which classification
remains in dispute. Plaintiff filed a submission on June 26, 2014 identifying those articles. See
Letter from Simon Gluck & Kane LLP to Ct. at Sched. 1 (June 26, 2014), ECF No. 111-1.
Plaintiff also identified articles as to which the parties have agreed to a settlement, id. at
Sched. 3, ECF No. 111-3, and articles for which plaintiff states it will abandon its claims, id. at
Sched. 2, ECF No. 111-2. Plaintiff was granted leave to file an amended complaint on
August 21, 2014. See First Am. Compl. (Aug. 21, 2014), ECF No. 117 (“Am. Compl.”). The
parties thereafter filed their respective motions for summary judgment.
A. The Merchandise Remaining in Dispute
Upon review of the parties’ submissions, the court determines that the tariff classification
of nine categories of merchandise remains in dispute: (1) various styles of “Trolls,” which are
articles made to depict mythical creatures; (2) “Goonie Goblins” finger puppets; (3) figures
identified as “Haunting Horrors” that feature holographic faces, in three designs; (4) an article
identified as “Bobbling Bones”; (5) a group of articles organized as a “Trick ‘n Treat Fun
Center” consisting of five types of articles, identified as “multiplying viewers,” “puzzle
watches,” “squirt balls,” “paint palettes,” and “stencil sets”; (6) articles identified as “Christmas
Hugs”; (7) various porcelain and earthenware candleholders; (8) an “Etched Images Plaque”; and
(9) four styles of “Baby Booties.” See Letter from Simon Gluck & Kane LLP to Ct. at Sched. 1.
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B. Entries, Liquidations, and Protests
The articles remaining at issue were entered from July 6, 1992 through October 26, 1992
in a number of entries through the ports of New York/Newark and San Francisco.
See Summons; Letter from Simon Gluck & Kane LLP to Ct. at Sched. 1 (entry information for
articles remaining at issue). Customs liquidated the entries between November 6, 1992 and
February 19, 1993. See Summons; Letter from Simon Gluck & Kane LLP to Ct. at Sched. 1.
The articles remaining in dispute were classified by Customs upon liquidation under a
number of different headings of the Harmonized Tariff Schedule of the United States
(“HTSUS”) (1992). 1 See Am. Compl. ¶ 12(a)-(ppp) (declaring the classification by Customs);
Answer to First Am. Compl. ¶ 12 (Oct. 20, 2014), ECF No. 122-1 (“Def.’s Am. Answer”)
(admitting as to the classification by Customs). The majority of these articles, including the
various models of Trolls, were classified by Customs upon liquidation under heading 9503,
HTSUS, which includes within its scope certain types of toys. Customs classified the
candleholders under heading 9405, HTSUS, which includes “[l]amps and lighting fittings . . . not
elsewhere specified or included.” Customs classified the Baby Booties under heading 6405,
HTSUS (“Other footwear”). Customs classified the Etched Images Plaques under heading 3926,
HTSUS (“Other articles of plastics . . .”) and the paint palettes under heading 3213, HTSUS
(“Artists’, students’ or signboard painters’ colors, modifying tints, amusement colors and the
like, in tablets, tubes, jars, bottles, pans or in similar forms or packings”). Customs classified the
squirt balls under heading 9505, HTSUS (“Festive . . . or other entertainment articles, including
magic tricks and practical joke articles . . .”).
1
All citations to the Harmonized Tariff Schedule of the United States (“HTSUS”) are to
the 1992 edition, the version in effect when all of the articles in dispute were entered.
Court No. 93-00391 Page 4
Between February 4, 1993 and April 1, 1993, Russ Berrie & Co. filed protests contesting
the classification determinations Customs made upon liquidation. See Summons. In its protests,
plaintiff claimed that the articles should be classified in certain subheadings under heading 9505,
HTSUS (“Festive, carnival or other entertainment articles, including magic tricks and practical
joke articles . . . ”). See id.; Am. Compl. ¶¶ 18-21. Customs denied each of plaintiff’s protests.
See Summons; Am. Compl. ¶ 3.
C. Proceedings before the Court
Plaintiff filed its current motion for summary judgment and supporting brief in
September 2014. See Pl.’s Mem. of Law in Supp. of Pl.’s Mot. for Summ. J. (Sept. 15, 2014),
ECF No. 118-3 (“Pl.’s Mot.”). On October 20, 2014, defendant cross-moved for summary
judgment, see Def.’s Mem. of Law in Opp’n to Pl.’s Mot. for Summ. J. and in Supp. of Def.’s
Cross-Mot. for Summ. J. (Oct. 20, 2014), ECF No. 122 (“Def.’s Mot.”), and on the same day
filed its answer to plaintiff’s amended complaint, Def.’s Am. Answer. On November 24, 2014,
plaintiff filed a reply in support of its summary judgment motion and in opposition to
defendant’s cross-motion. Pl.’s Mem. of Law in Opp’n to Def.’s Cross-Mot. for Summ. J. and in
Further Supp. of Pl.’s Mot. for Summ. J. (Nov. 24, 2014), ECF No. 123 (“Pl.’s Reply”). On
January 28, 2015, defendant filed its reply in support of its cross-motion and in opposition to
plaintiff’s motion for summary judgment. Def.’s Mem. of Law in Opp’n to Pl.’s Mot. for Summ.
J. and Reply in Further Supp. of Def.’s Cross-Mot. for Summ. J. (Jan. 28, 2015), ECF. No. 131
(“Def.’s Reply”).
On January 29, 2015, plaintiff requested the court’s leave to respond to what plaintiff
construed as a de facto motion, made in defendant’s reply, to strike certain of plaintiff’s
evidentiary submissions. Letter from Simon Gluck & Kane LLP to Ct. (Jan. 29, 2015), ECF
Court No. 93-00391 Page 5
No. 132. Plaintiff filed its response to the de facto motion to strike on February 11, 2015. Pl.’s
Mem. of Law in Opp’n to Def.’s Mot. to Strike the Mr. Berrie, Foster, and Lohwasser Affidavits
as well as Russ Berrie Catalog Excerpts (Feb. 11, 2015), ECF No. 134.
At the request of the parties, and following conferences with the parties, the court entered
orders staying this action to allow the parties to conduct settlement negotiations. Order
(Feb. 17, 2017), ECF No. 138 (staying action for 90 days); Order (June 16, 2017), ECF No. 142
(extending stay). Following the expiration of the stay, the parties reported that they were unable
to reach further settlement. Letter from Simon Gluck & Kane LLP to Ct. (July 19, 2017), ECF
No. 143 (indicating that settlement of the action could not be reached and requesting that the
court render a decision). In response to the court’s questions in conference, which pertained to
articles for which samples were missing or for which no clear description of the merchandise had
been submitted, plaintiff submitted an affidavit and additional samples. Aff. of Mariana del Rio
Kostenwein, Esq. (July 19, 2017), ECF No. 143-1 (“Kostenwein Aff.”) (providing court with
more detailed descriptions); Notice of Manual Filing (July 19, 2017), ECF No. 144 (physical
exhibits accompanying Kostenwein affidavit).
II. DISCUSSION
A. Jurisdiction and Standard of Review
The court exercises jurisdiction over this action pursuant to section 201 of the Customs
Courts Act of 1980, 28 U.S.C. § 1581(a). In cases contesting the denial of a protest, the court
makes its determinations de novo based upon the record made before the court. 28 U.S.C.
§ 2640(a)(1). The plaintiff has the burden of showing that the government’s determined
classification of the subject merchandise was incorrect but does not bear the burden of
establishing the correct classification; instead, it is the court’s independent duty to arrive at “the
Court No. 93-00391 Page 6
correct result, by whatever procedure is best suited to the case at hand.” Jarvis Clark Co. v.
United States, 733 F.2d 873, 878 (Fed. Cir. 1984) (footnote omitted). Where, as here, Customs
has denied a protest without issuing an official ruling, the court considers the parties’ arguments
without deference. Hartog Foods Int’l, Inc. v. United States, 291 F.3d 789, 791 (Fed. Cir. 2002).
In a tariff classification dispute, “summary judgment is appropriate when there is no
genuine dispute as to the underlying factual issue of exactly what the merchandise is.” Bausch &
Lomb, Inc. v. United States, 148 F.3d 1363, 1365 (Fed. Cir. 1998) (citing Nissho Iwai Am.
Corp. v. United States, 143 F.3d 1470, 1472-73 (Fed. Cir. 1998)). In ruling on a motion for
summary judgment, the court credits the non-moving party’s evidence and draws all inferences
in that party’s favor. Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)). A genuine factual dispute is one potentially affecting the
outcome under the governing law. Anderson, 477 U.S. at 248.
The material facts as stated in this Opinion and Order are not in dispute between the
parties except where specifically indicated. For each of the articles at issue, the court has
available samples, illustrations, or descriptions of the items in question that would be admissible
and are sufficient to allow the court to reach a classification decision upon facts as to which there
is no genuine dispute.
B. Principles of Tariff Classification Law
Tariff classification under the HTSUS is determined according to the General Rules of
Interpretation (“GRIs”) and the Additional U.S. Rules of Interpretation, both of which are part of
the legal text of the HTSUS. The GRIs are applied in numerical order, beginning with GRI 1,
HTSUS, which provides that “classification shall be determined according to the terms of the
headings and any relative section or chapter notes.” GRI 1, HTSUS. The chapter and section
Court No. 93-00391 Page 7
notes of the HTSUS are not optional interpretive rules but statutory law. Libas, Ltd. v. United
States, 193 F.3d 1361, 1364 (Fed. Cir. 1999).
Unless there is evidence of “contrary legislative intent, HTSUS terms are to be construed
according to their common and commercial meanings.” La Crosse Tech., Ltd. v. United States,
723 F.3d 1353, 1358 (Fed. Cir. 2013) (quoting Carl Zeiss, Inc. v. United States, 195 F.3d 1375,
1379 (Fed. Cir. 1999)). The common meaning of a tariff term is a question of law to be decided
by the court, while the determination of whether a particular item fits within that meaning is a
question of fact. E.M. Chems. v. United States, 920 F.2d 910, 912 (Fed. Cir. 1990) (citation
omitted).
In order to define tariff terms, the court “may consult lexicographic and scientific
authorities, dictionaries, and other reliable information” or may rely on its “own understanding
of the terms used.” Baxter Healthcare Corp. of Puerto Rico v. United States, 182 F.3d 1333,
1337-38 (Fed. Cir. 1999) (citation omitted). Where a tariff term has various definitions or
meanings and has broad and narrow interpretations, the court must determine which definition
best expresses the congressional intent. See Richards Med. Co. v. United States, 910 F.2d 828,
830 (Fed. Cir. 1990).
Although not part of U.S. tariff law and therefore not legally binding on the court, the
Explanatory Notes (“ENs”) to the Harmonized Commodity Description and Coding System
(“Harmonized System” or “HS”) are evidence of the intent of the drafters of the Harmonized
System. H.R. Rep. No. 100-576, at 549 (1988) (Conf. Rep.), reprinted in 1988 U.S.C.C.A.N.
1547, 1582. Explanatory Notes “are generally indicative of the proper interpretation of a tariff
Court No. 93-00391 Page 8
provision.” Degussa Corp. v. United States, 508 F.3d 1044, 1047 (Fed. Cir. 2007) (citation
omitted). 2
C. Tariff Classification of the Articles Remaining in Dispute
1. The “Trolls”
The court’s decision regarding the classification of the Trolls is based on the undisputed
facts stated by the parties in their respective motions for summary judgment and the court’s in
camera analysis of the evidence, including in particular the physical samples. Where no sample
was provided, the court considered catalog pages submitted by plaintiff as exhibits in support of
its motion for summary judgment. 3
Trolls are three-dimensional figures, made principally of plastic (with one exception,
discussed herein), in various sizes (up to one foot in length) and styles. See, e.g., Pl.’s Exs. 2-41
(Sept. 15, 2014), ECF No. 119 (images of various Trolls). They are designed to resemble
mythical creatures. The Trolls come with removable or non-removable articles of “attire” of
textile composition (including hats, coats, pants, and dresses). The textile articles in which the
Trolls are dressed include miniature attire articles made to resemble various garments such as
wedding gowns, tuxedos, Santa Claus suits, and witches’ costumes. Some Trolls come with
attached items, including, for example, miniature books and brooms made of fabric and
2
Citations to the Explanatory Notes (“ENs”) in this Opinion and Order are to the 1986
edition, the relevant provisions of which were in effect in 1992. See Customs Co-operation
Council, Harmonized Commodity Description and Coding System (1st ed. 1986).
3
Unless otherwise indicated, all citations to catalog pages are to exhibits plaintiff
submitted in support of its original and current motions for summary judgment. See Pl.’s Exs.
(Sept. 15, 2014), ECF No. 119; see also Letter from Simon Gluck & Kane LLP to Ct. (Dec. 12,
2014), ECF No. 125 (submitting revised versions of exhibits 42 through 46, exhibit 50, and
submitting an additional exhibit) (“Pl.’s Rev. Exs.”).
Court No. 93-00391 Page 9
miniature boxes resembling wrapped presents. See, e.g., Pl.’s Ex. 8 (image of Caroler Trolls
holding books).
a. Tariff Classifications Claimed by the Parties
Upon liquidation, Customs classified the Trolls in subheading 9503.49.00, HTSUS
(“Other toys . . . : Toys representing animals or non-human creatures (for example, robots or
monsters) . . . : Other”), subject to duty at 6.8% ad val. See, e.g., Am. Compl. ¶ 12(a)-(n); Def.’s
Am. Answer ¶ 12. Before the court, the United States claims that this is the correct
classification. See Def.’s Mot. 14-16.
For the Trolls that are outfitted in a Christmas-related theme, plaintiff claims
classification in subheading 9505.10.25, HTSUS (“Festive, carnival or other entertainment
articles, including magic tricks and practical joke articles . . . : Articles for Christmas
festivities . . . : Christmas ornaments: Other: Other”), temporarily free of duty according to
subheading 9902.95.05, HTSUS. Am. Compl. ¶ 19; Pl.’s Mot. 9-11. Plaintiff claims that all
other Trolls at issue in this case should be classified in subheading 9505.90.60, HTSUS
(“Festive, carnival or other entertainment articles, including magic tricks and practical joke
articles . . . : Other: Other”), subject to duty at 3.1% ad val. Am. Compl. ¶ 21; Pl.’s Mot. 9-11.
b. Tariff Classification of the Trolls
As directed by GRI 1, HTSUS, the court first considers the terms of the headings and any
relative section and chapter notes.
Chapter 95, HTSUS (“Toys, Games and Sports Equipment; Parts and Accessories
Thereof”) is organized such that the first three headings apply specifically to articles identified as
“toys.” Within the chapter, heading 9501, HTSUS applies to “[w]heeled toys designed to be
ridden by children,” heading 9502, HTSUS carries the article description “[d]olls representing
only human beings,” and heading 9503, HTSUS, the heading advocated by defendant, applies to
Court No. 93-00391 Page 10
“[o]ther toys.” The next two headings do not refer specifically to toys in the respective article
descriptions. Heading 9504, HTSUS applies to “[a]rticles for arcade, table or parlor games” and
heading 9505, HTSUS, the heading advocated by plaintiff, has the article description “[f]estive,
carnival or other entertainment articles, including magic tricks and practical joke articles.”
Whether or not they are described by the term “toys,” the court eliminates heading 9502
from consideration because, even if the Trolls are considered to be “dolls,” they are not “dolls
representing only human beings.” See Heading 9502, HTSUS. Instead, they are intended to
represent mythical, non-human creatures. 4 While some of the features of the Trolls resemble
human features, Trolls are not of human proportions, and they have cartoon-like, exaggerated
and distorted features, including a flattened head that is about one-third of the total size of the
body, cartoon-like faces with oversized eyes, ears, and noses, hands with only four digits, and
feet with only four toes. Some have non-human skin tones such as lime green. See, e.g., Pl.’s
Rev. Ex. 43 (Dec. 12, 2014), ECF No. 125 (catalog image of Frankenstein Troll). Attached to
the head of each Troll are strands of fluffy artificial “hair” in any of various colors (including
red, blue, green, and black) that extends upwards, nearly equaling the height of the Troll’s body.
Heading 9503, by using the term “[o]ther toys,” includes within its scope those toys that
do not fall within the scope of headings 9501 and 9502, HTSUS. See also EN 95.03 (instructing
4
The Explanatory Notes confirm the court’s understanding of the intended scope of
heading 9502 relative to that of heading 9503. EN 95.02 (“Dolls Representing Only Human
Beings”) must be read together with EN 95.03, which informs the reader that heading 95.03
includes within its scope “[t]oys representing animals or non-human creatures even if possessing
predominantly human physical characteristics (e.g., angels, robots, devils, monsters), including
those for use in marionette shows.” Further clarifying the distinction between the “dolls” of
heading 95.02 and the “other toys” of heading 95.03, EN 95.02 provides that heading 95.02
excludes “[t]in soldiers and the like (heading 95.03)” (emphasis in original) which the note
considers to be toys but not dolls. See EN 95.03(A)(1). The Explanatory Notes instruct,
additionally, that dolls “of a caricature type” (i.e., dolls depicting human beings, but typically
with exaggerated features) are included in heading 95.02. EN 95.02.
Court No. 93-00391 Page 11
that heading 95.03 covers “all toys” not included in headings 95.01 and 95.02). Heading 9503,
HTSUS, therefore, encompasses the Trolls if they are described by the term “toys.”
Common dictionary definitions of the term “toy” typically refer to an article intended
solely or primarily for amusement rather than practical use. See Webster’s Third New
International Dictionary 2419 (1986) (defining a “toy” as “something designed for amusement or
diversion rather than practical use”); 18 The Oxford English Dictionary 329 (2d ed. 1989)
(defining a “toy” as “[a] material object for children or others to play with (often an imitation of
some familiar object); a plaything; also something contrived for amusement rather than for
practical use”); see also EN to Chapter 95 (“This Chapter covers toys of all kinds whether
designed for the amusement of children or adults.”).
That the Trolls are designed for amusement (either of children or adults) is amply
demonstrated by the samples and illustrations of these articles. The cartoon-like faces and
bodies create a whimsical and fanciful impression and the “apparel” in which the Trolls are
clothed contribute further to a conclusion that these articles are intended to amuse. The plastic
and fabric composition, like the humorous features, is typical of a toy rather than a decorative
statuette or figurine. Based on the undisputed facts, plaintiff is unable to show that the Trolls are
not “toys” within the scope of heading 9503, HTSUS (“Other toys”).
Plaintiff argues that even if the Trolls are prima facie described by the terms of
heading 9503, HTSUS, they also fall within the scope of heading 9505, HTSUS (“Festive,
carnival or other entertainment articles, including magic tricks and practical joke articles”) and
that the latter heading should be preferred to heading 9503, HTSUS by application of the rule of
relative specificity set forth in GRI 3(a), HTSUS. Pl.’s Mot. 17. The court must reject this
argument. The terms of heading 9505, HTSUS cause the court to conclude that heading 9505,
Court No. 93-00391 Page 12
HTSUS, while including a certain class of goods (identified below) that may be considered to
fall within some definitions of the word “toy,” was never intended to encompass doll-like toys
representing creatures, such as the Trolls at issue herein.
The term “[f]estive, carnival or other entertainment articles” as used in heading 9505,
HTSUS has been the subject of considerable litigation, but the term has not been construed by
the courts to encompass toys generally or, specifically, a doll-like toy representing a non-human
creature. Plaintiff grounds its argument that the Trolls are described by this heading term in the
clothing items with which the Trolls are dressed, which have themes related to a holiday or other
festive event or a celebration. See Pl.’s Mot. 13 (stating that “[a]ll of the items bear motifs,
symbols, and contain symbolic content, traditionally associated with particular festive
occasions”). But however dressed, these goods are still toys, i.e., they are designed to provide
amusement.
The intended meaning of the heading term “festive, carnival or other entertainment
articles” is vague, and common dictionary definitions consulted by the court, which regard the
term “entertainment” as a noun, offer little clarification of the meaning of the term when used as
an adjective. While it can be suggested, as plaintiff’s argument might be taken to connote, that
toys are, by definition, “entertainment articles,” such a contention blurs the distinctions between
the meanings of the terms “amusement” and “entertainment.” Moreover, absent an indication of
clear legislative intent, the court is not convinced that Congress could have intended for heading
9505, HTSUS to include countless varieties of toys that offer “entertainment” in the form of
“amusement,” thus overlapping the scopes of headings 9501, 9502, and 9503, HTSUS. The
HTSUS, like the HS on which its nomenclature is based, is designed such that GRI 1 will be
paramount, and in that sense GRI 1 can be expected to resolve most classification issues.
Court No. 93-00391 Page 13
Plaintiff has not convinced the court that Congress, by including heading 9505 in the HTSUS,
intended to sweep into the scope of this heading any type of toy simply because it displays a
design related to a festival or holiday.
Here, due to the vagueness inherent in the heading term “festive, carnival or other
entertainment articles” when considered in relation to goods such as the Trolls, resort to the
Explanatory Notes for clarification is particularly warranted. The Explanatory Notes confirm the
court’s interpretation of the scope of heading 9505, HTSUS as it relates to the Trolls. EN 95.05
gives two separate lists of examples to illustrate the scope of the heading. The first list,
(list “A”), is of four groups of products that are examples of “[f]estive, carnival or other
entertainment articles,” with the guidance that these articles “in view of their intended use are
generally made of non-durable material.” EN 95.05. Listed as examples are:
(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., artificial Christmas
trees . . . 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 . . . 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 (carnival tape),
cardboard trumpets, “blow-outs”, confetti, carnival umbrellas, etc.
EN 95.05 (emphasis in original). The examples in paragraphs (A)(1) and (A)(4), above, have in
common their decorative character. The examples in (A)(2) serve to clarify that the heading
includes a class of articles traditionally used at Christmas festivities (or, by implication, other
holiday festivals), whether or not decorative in character. This is shown by the example of the
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traditional English Christmas crackers (or “cracker bon bons,” which when opened at both ends
release party favors or candy), which might not be seen as “decorative” in an ordinary sense but
can be considered “festive” due to their traditional association with the Christmas holiday. They
are collections of articles, including edible ones, and it would not be correct to consider them
toys (although they may contain small toys as well as candy and such). The example of
Christmas stockings is to a class of articles that are decorative, festive, and functional, i.e., they
are designed to hold small presents as well as serve as a home decoration during the Christmas
season. Trolls are not analogous to a Christmas stocking (although they might be placed inside
one). The example in (A)(3) of “fancy dress” articles (excluding textile apparel) sheds further
light on the meaning of the term “festive, carnival or other entertainment articles” by including a
class of goods made for use at certain special occasions, e.g., costume balls and masquerades.
But none of the examples in the four groups listed in (A) is of goods that ordinarily would be
considered “toys.”
The second list of examples in EN 95.05, (list “B”), is directed to the term in HS heading
95.05, “including conjuring tricks and novelty jokes” that modifies the term “festive, carnival
and other entertainment articles.” EN 95.05 explains that the heading includes:
Conjuring tricks and novelty jokes, e.g., packs of cards, tables, screens
and containers, specially designed for the performance of conjuring tricks;
novelty jokes such as sneezing powder, surprise sweets, water-jet
button-holes and “Japanese flowers”.
EN 95.05 (emphasis in original). These examples are of articles that are “entertainment” articles,
but they illustrate distinctly different classes of goods than do the “festive” and decorative
examples in list (A). Unlike the examples in list (A), some articles of a type exemplified by
list (B) (which includes “water-jet button-holes”) might be considered to be “toys” in the broad
sense of the term. In this regard, it is noteworthy that Congress indicated that some goods that
Court No. 93-00391 Page 15
may be described as “toys” could fall within the scope of heading 9505, HTSUS when it
temporarily suspended the duty on “articles . . . provided for in heading 9502, 9503, or 9504, or
subheading 9505.90 (except balloons, marbles, dice, and diecast vehicles), valued not over 5¢
per unit.” Subheading 9902.71.13, HTSUS (emphasis added). Subheading 9505.90 contains the
following footnote (footnote 1) directing the reader to this temporary duty suspension: “Duty on
certain toys temporarily suspended. See subheading 9902.71.13.” The note applies to
subheading 9505.90, one of the two subheadings of heading 9505, HTSUS. That subheading
applies to goods of the heading other than “[a]rticles for Christmas festivities and parts and
accessories thereof” (subheading 9905.10, HTSUS).
The “magic tricks and practical joke articles” term in the article description for heading
9505, HTSUS is the U.S. expression of the international HS term “including conjuring tricks and
novelty jokes.” EN 95.05. By using the term “including magic tricks and practical joke articles”
as a modifier of the general term “festive, carnival or other entertainment articles,” Congress
indicated that the general term must be read to include two classes of goods, “magic tricks” and
“practical joke articles,” that ordinarily might not be considered to fall within that term. See
Norman J. Singer & Shambie Singer, Statutes and Statutory Construction § 47.23 (7th ed. 2014)
(Sutherland) (explaining that “[t]he maxim expressio unius est exclusio alterius” instructs that
“where a statute designates . . . the persons and things to which it refers, courts should infer that
all omissions were intentional exclusions” (footnotes omitted)); see also DWA Holdings LLC v.
United States, 889 F.3d 1361, 1371 (Fed. Cir. 2018) (“[W]here Congress includes particular
language in one section of a statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”
(quoting Brown v. Gardner, 513 U.S. 115, 120 (1994))). In this case, by including “magic tricks
Court No. 93-00391 Page 16
and practical joke articles” in heading 9505, HTSUS, articles that are not normally decorative or
utilitarian, but that in some instances may be considered “toys,” Congress intended to treat
entertainment articles described by the terms “magic tricks and practical joke articles” differently
than the “toys” classified under headings 9501, 9502, and 9503, HTSUS. The term “including
magic tricks and practical joke articles” connotes that only these two special classes of goods
(some of which may be describable as toys), as opposed to toys generally, fall within the scope
of heading 9505.
In summary, the undisputed facts, and in particular the samples, demonstrate that the
Trolls, which have the amusing physical characteristics of toys, are not decorations or ornaments.
Whether or not they are dressed in outfits with Christmas-related themes, they cannot truthfully
be described as articles “traditionally used at Christmas festivities,” as are artificial Christmas
trees, nativity scenes, Christmas crackers, Christmas stockings, or imitation yule logs. They
have the physical composition (plastic and fabric) and appearance of doll-like toys rather than
the decorative characteristics of Christmas ornaments or Christmas tree ornaments. And while
they are toys that provide “amusement,” the Trolls are not within the class of “entertainment”
articles that have the characteristics of magic tricks, novelty, or practical joke articles. Because
of the terms of heading 9505, HTSUS, and because of the common characteristics of the classes
and kinds of articles the drafters intended heading 95.05 to cover, as shown by the examples in
EN 95.05, classifying the Trolls under heading 9505, HTSUS impermissibly would expand the
scope of the heading to encompass a class of goods, i.e., doll-like toys, that do not share any of
the common characteristics of the goods of that heading.
Court No. 93-00391 Page 17
Plaintiff advances various arguments in an attempt to show that heading 9505, HTSUS
includes within its scope the Trolls that are at issue in this case. For the reasons discussed below,
the court does not find merit in these arguments.
Citing various decisions of this Court and the Court of Appeals for the Federal Circuit
(“Court of Appeals”), plaintiff argues, first, that classification of the Trolls under heading 9505,
HTSUS, is required by case law. Pl.’s Mot. 10-15. Plaintiff asserts that “[t]he Trolls were
manufactured and imported together attired in clothing bearing symbols associated with several
holidays, including Christmas, Thanksgiving, Halloween, Easter, St. Patrick’s Day, and
Valentine’s Day, as well as private festive occasions such as Bat Mitzvahs, Birthdays, and
Weddings.” Id. at 9. Plaintiff relies on Midwest of Cannon Falls, Inc. v. United States, 122
F.3d 1423 (Fed. Cir. 1997), as well as various cases interpreting that decision, for the proposition
that the Trolls must be classified under heading 9505, HTSUS because of close association with
a festive occasion and use or display principally during that festive occasion. Id. at 12. Plaintiff
also argues that heading 9505, HTSUS, which it characterizes as a provision controlled by use
within the scope of Additional U.S. Rule of Interpretation 1(a), HTSUS, is to be preferred by
application of GRI 3(a), HTSUS. Pl.’s Mot. 17-20. It argues that such is the case whether the
court considers heading 9503, HTSUS to be an eo nomine provision or a provision controlled by
use. Id. at 20. The court is not persuaded by these arguments. Midwest of Cannon Falls did not
involve the classification of any article similar to Trolls. That case involved the classification of
27 articles, 23 of which were found to be Christmas ornaments and classified accordingly under
heading 9505, HTSUS. Midwest of Cannon Falls, 122 F.3d at 1429. Of the 23 Christmas
ornaments, only two—a “[w]ooden pull toy (ice skater)” and a “[t]oy smoker (Santa)”—were
described as “toys” in the opinion. Both of these articles, however, were found to be Christmas
Court No. 93-00391 Page 18
ornaments and determined for tariff classification purposes to be “Christmas ornaments of wood”
classified under subheading 9505.10.15, HTSUS. Id. The court finds nothing in the samples or
illustrations of the Trolls that causes the court to conclude that any of the Trolls are Christmas
ornaments. The other four articles at issue in Midwest of Cannon Falls were described by the
Court of Appeals as a “[h]eart-shaped metal wreath,” a “[j]ack-o’-lantern earthenware mug,” a
“[j]ack-o’-lantern earthenware pitcher,” and an “Easter water globe.” Id. The Court of Appeals
determined that these four articles were “Other festive articles” classifiable under heading 9505,
HTSUS. Id. These articles are each dissimilar to Trolls: the pitcher and mug are tableware, and
the wreath and globe are decorative articles. In summary, Midwest of Cannon Falls does not
hold that doll-like toys such as the Trolls will be classified under heading 9505, HTSUS as
“festive . . . or other entertainment articles” simply because they are outfitted in holiday or
festive garb.
Plaintiff argues, further, that “[t]o the extent that the question at issue in this discussion
concerns the consideration of two competing tariff provisions, each lacking defining or limiting
legal notes, Midwest [of Cannon Falls] and the Russ Berrie Festive Jewelry Case are the most
relevant cases among those involving the proper classification of ‘festive articles.’” Pl.’s
Mot. 12. Plaintiff’s latter citation is to Russ Berrie & Co. v. United States, 27 CIT 1438, 281 F.
Supp. 2d 1351 (2003), rev’d, 381 F.3d 1334 (Fed. Cir. 2004). The decision of the Court of
Appeals in Russ Berrie & Co. held that certain jewelry items with Halloween and Christmas
themes were correctly classified under heading 7117, HTSUS (“Imitation jewelry”), not heading
9505, HTSUS, by application of the principle of relative specificity stated in GRI 3(a). Russ
Berrie & Co., 381 F.3d at 1338. Because it did not involve the issue of whether doll-like toys
Court No. 93-00391 Page 19
could fall within the scope of heading 9505, HTSUS, the case is not a precedent requiring
classification of the Trolls under that heading.
In support of its position in favor of classification of the Trolls as “festive articles,”
plaintiff cites two other decisions of the Court of Appeals, Michael Simon Design, Inc. v. United
States, 501 F.3d 1303 (Fed. Cir. 2007) and Park B. Smith, Ltd. v. United States, 347 F.3d 922
(Fed. Cir. 2003). See Pl.’s Mot. 10-13. Because neither case involved the classification of
“toys,” neither establishes a precedent controlling on the issue the court must resolve in this case.
Park B. Smith concerned the tariff classification of placemats, table napkins, table runners, and
woven rugs, all of which either were decorated with holiday symbols or were in designs or colors
often associated with holidays or seasons. Park B. Smith, 347 F.3d at 926. The Court of
Appeals ruled that those of the articles “with symbolic content associated with a particular
recognized holiday” were correctly classified under heading 9505, HTSUS, but those “that are
merely cheerful or colorful or associated with specific seasons of the year, either by symbol or
color” and are not associated with a particular festive holiday do not meet the criteria of Midwest
of Cannon Falls and must be classified outside of chapter 95, HTSUS. Id. at 929. Michael
Simon Design is also inapposite. That case affirmed a decision of this Court, Michael Simon
Design, Inc. v. United States, 30 CIT 1160, 452 F. Supp. 2d 1316 (2006), holding that certain
sweaters with Christmas or Halloween motifs were properly classified under heading 9505,
HTSUS, as festive articles. Michael Simon Design, 501 F.3d at 1307. The decision, in a case
involving apparel, not toys, entailed the application of notes to section XI, HTSUS and to
chapter 95, HTSUS that are not relevant to the classification of the Trolls in this case.
In summary, Midwest of Cannon Falls, Russ Berrie & Co., Park B. Smith, and Michael
Simon Design all involved the tariff classification of products other than doll-like toys such as
Court No. 93-00391 Page 20
the Trolls. Each of those cases involved the question of whether an article with a utilitarian
function (including an “apparel” or “jewelry” function) also could be a “festive, carnival or other
entertainment article[]” within the scope of heading 9505, HTSUS due to a “festive” or
“holiday” decorative characteristic. That question is not presented by the Trolls, which have no
utilitarian function and are toys, not decorations. Plaintiff is incorrect in advocating that these
decisions of the Court of Appeals are controlling on the issue of classification of the Trolls. 5
The court is not convinced by plaintiff’s argument that the Trolls are “festive, carnival or
other entertainment articles” within the meaning of the heading term due to the way they are
dressed, i.e., in garb associated with holidays or festivals. See Pl.’s Mot. 13. The clothing and
accessories of the Trolls do not change the doll-like or toy-like character of this merchandise and
instead may be observed to contribute to the amusing qualities. Explanatory Note 95.02 is
instructive in providing that dolls of HS heading 95.02 may be “dressed.” Under plaintiff’s
logic, it could be contended that a doll representing a human being outfitted in a dress with a
holiday theme would be prima facie classifiable under heading 9505, HTSUS even though that
heading was not intended to encompass dolls or toys generally. Such a contention would be
contrary to the organization of chapter 95, HTSUS and the guidance provided in ENs 95.02,
95.03, and 95.05. As the court has explained, the headings of chapter 95, HTSUS are organized
such that the toys of headings 9501 through 9503, HTSUS are distinguishable from the goods
that are classified in heading 9505, HTSUS. The latter includes magic tricks and practical joke
5
Plaintiff also cites a number of tariff classification decisions of the Court of
International Trade that plaintiff views as applying principles established by the cited appellate
decisions. None of these citations is to a case in which merchandise analogous to the Trolls at
issue in this action were held to be classified under heading 9505, HTSUS.
Court No. 93-00391 Page 21
articles, but it would be error to construe the heading to include other classes or kinds of toys,
such as the Trolls.
In conclusion, the Trolls at issue in this case are not described by the terms of
heading 9505, HTSUS, when those terms are properly construed. The Trolls instead answer to a
descriptive term of heading 9503, HTSUS (“Other toys”). The parties identify no other
candidate headings, and the court finds none. Because no heading other than heading 9503,
HTSUS contains a term describing the Trolls, the court resolves the question of the correct
heading according to GRI 1, HTSUS and therefore does not reach an issue of relative specificity
that would call for the application of GRI 3(a), HTSUS. Therefore, the Trolls are properly
classified under heading 9503, HTSUS. 6
The correct subheading for the Trolls is subheading 9503.49.00, HTSUS (“Other
toys . . . : Toys representing animals or non-human creatures . . . : Other”), subject to duty at
6.8% ad val., with the exception of one Troll, identified as Style No. 2385, “Soft Body Troll in
Candy Cane Print Pajamas.” This Troll, a sample of which plaintiff provided in its separate
submission, differs from the other Trolls at issue in having a fabric-covered body stuffed with a
soft material; only the face of the article is of plastic. See Notice of Manual Filing at Ex. 1
(submitting physical sample to court). Because this model of Troll is a stuffed toy, the correct
subheading is 9503.41.10, HTSUS (“Other toys . . . : Toys representing animals or non-human
6
As the court discussed previously, during the time that the entries at issue were made,
“articles . . . provided for in heading 9502, 9503, or 9504 or subheading 9505.90 . . . valued not
over 5¢ per unit” qualified for duty-free tariff treatment according to subheading 9902.71.13,
HTSUS. The court has reviewed the entry documents for each article that it has determined to be
properly classified in heading 9503, HTSUS or subheading 9505.90, HTSUS and determined
that, based on undisputed evidence, none of these articles had a dutiable unit value of 5¢ or less.
Accordingly, none of these articles qualify for classification in subheading 9902.71.13, HTSUS,
free of duty.
Court No. 93-00391 Page 22
creatures . . . : Stuffed toys”), temporarily free of duty according to subheading 9902.95.02,
HTSUS (“Stuffed or filled toys representing animals or nonhuman creatures, not having a spring
mechanism and not exceeding 63.5 cm in either length, width, or height (provided for in
subheading 9503.41.10 or 9503.49.00)”).
2. The “Goonie Goblins” Finger Puppets
Next in dispute are articles of Style No. 3030, “Goonie Goblins.” Based on plaintiff’s
submitted catalog pages and the undisputed facts as submitted by the parties, Goonie Goblins are
rubber finger puppets that come in six designs resembling such creatures as a bat, medusa, and a
devil, among others. Pl.’s Rev. Ex. 43. The finger puppets come in six different colors
(depending on design), slip onto the wearer’s finger approximately to the first knuckle, and
contain arms, wings, or antennae that stick out from the sides of the puppet. Id.
a. Tariff Classifications Claimed by the Parties
Upon liquidation, Customs classified the Goonie Goblins in subheading 9503.90.60,
HTSUS (“Other toys . . . : Other: Other toys (except models), not having a spring mechanism”),
subject to duty at 6.8% ad val. See Am. Compl. ¶ 12(oo); Def.’s Am. Answer ¶ 12. Plaintiff
argues before the court that the merchandise should be classified in subheading 9505.90.60,
HTSUS (“Festive . . . or other entertainment articles . . . : Other: Other”), subject to duty at 3.1%
ad val. Am. Compl. ¶ 21. Defendant maintains that the Goonie Goblins must be classified as
toys under heading 9503, HTSUS. Def.’s Mot. 14-16.
b. Tariff Classification of the Goonie Goblins
The analysis the court applied to the Trolls applies also to the Goonie Goblins. EN 95.03
states that the heading covers “[t]oys representing . . . non-human creatures,” including,
explicitly, “devils” and “monsters,” and clarifies that this class or kind of goods may include
Court No. 93-00391 Page 23
puppets by specifying that it includes “those for use in marionette shows.” EN 95.03. Goonie
Goblins are prima facie classifiable under heading 9503, HTSUS.
Plaintiff claims classification under heading 9505, HTSUS (“Festive . . . or other
entertainment articles”). Pl.’s Mot. 20-29. The court rejects this claim because the Goonie
Goblins are not described by the terms of heading 9505, HTSUS as properly interpreted. They
are toys, not decorations. The connection with Halloween is only that the toys have
Halloween-related themes, and in that respect these goods cannot truthfully be described as a
traditional article of celebration or festivity. While intended for amusement, they do not belong
to the class or kind of “magic tricks” or “practical joke articles” encompassed by heading 9505,
HTSUS.
The court, therefore, concludes that the Goonie Goblins are classified under
heading 9503, HTSUS (“Other toys . . .”). The applicable subheading is 9503.49.00, HTSUS
(“Other toys . . . : Toys representing animals or non-human creatures (for example, robots and
monsters) . . . : Other”), subject to duty at 6.8% ad val. The court determines classification in
this subheading rather than the more general one under which the Goonie Goblins were classified
upon liquidation, subheading 9503.90.60, HTSUS (“Other toys . . . : Other: Other toys (except
models), not having a spring mechanism”), also subject to duty at 6.8% ad val. This was
incorrect in ignoring the defining characteristic of the merchandise, which is as toys representing
non-human creatures.
3. The “Haunting Horrors”
The merchandise advertised by plaintiff in its catalog as Style No. 14088, “Haunting
Horrors,” is described by the parties’ submissions as three-inch-tall plastic (polyvinyl chloride)
figures. Pl.’s Rev. Ex. 43; see Pl.’s Reply 24-25. They come in three designs: a hairy, green
Court No. 93-00391 Page 24
monster with horns, a grim reaper holding a scythe, and a witch stirring a bubbling cauldron.
Pl.’s Rev. Ex. 43. Each has what plaintiff calls a “ghostlike holographic face,” Am. Compl.
¶12(pp), which displays a three-dimensional image of a skull. Id.
a. Tariff Classifications Claimed by the Parties
Upon liquidation, Customs classified the Haunting Horrors in subheading 9503.49.00,
HTSUS (“Other toys . . . : Toys representing animals or non-human creatures . . . : Other”),
subject to duty at 6.8% ad val. See Am. Compl. ¶ 12(pp); Def.’s Am. Answer ¶ 12. Defendant
maintains that classification of these articles as toys under heading 9503, HTSUS is required.
Def.’s Mot. 13-16.
Plaintiff contends that the Haunting Horrors should have been classified in
subheading 9505.90.60, HTSUS (“Festive, carnival or other entertainment articles, including
magic tricks and practical joke articles . . . : Other: Other”), subject to duty at 3.1% ad val. Am.
Compl. ¶ 21; Pl.’s Reply 24-28.
For the reasons discussed below, the court concludes that plaintiff has not met its burden
of showing that the classification by Customs upon liquidation was incorrect.
b. Tariff Classification of the Haunting Horrors
The court eliminates heading 9505, HTSUS from consideration because the Haunting
Horrors, like the Trolls and the Goonie Goblins finger puppets, are toys of a type that do not fall
within the scope of that heading. Simply stated, they are plastic articles that have the
characteristics of toys, not the characteristics of decorative figurines or of any other of the classes
of “festive, carnival or other entertainment articles” that fall within the scope of heading 9505,
HTSUS. The holographic “skull” feature, as are the other grotesque physical features, are
characteristic of articles of amusement rather than of the types of goods that heading 9505,
HTSUS was intended to encompass.
Court No. 93-00391 Page 25
The court also eliminates heading 9502, HTSUS (“Dolls representing only human
beings . . .”) from consideration because these figures are not “dolls” representing human beings.
Although the witch and grim reaper have some human-like characteristics, the Haunting Horrors
represent imaginary creatures with grotesque features.
In summary, the court agrees with defendant that classification under heading 9503,
HTSUS is correct. Because the Haunting Horrors are toys representing non-human creatures, the
correct subheading is 9503.49.00, HTSUS (“Other toys . . . : Toys representing animals or
non-human creatures . . . : Other”), subject to duty at 6.8% ad val.
4. The “Bobbling Bones”
As described in the submissions, Style No. 18179, “Bobbling Bones,” are described in
plaintiff’s catalog as self-standing “push puppets” made of plastic that are four-and-a-half inches
tall. Pl.’s Rev. Ex. 43 (catalog image of Bobbling Bones from plaintiff’s 1992 Halloween
catalog). These puppets are composed of three main segments: a base in one of four colors, a
headstone featuring a saying, and the upper half of a skeleton’s body, wearing a bow tie, which
appears to be popping up from the top of the headstone. Id. The Bobbling Bones come in four
designs, which differ in the color of the base and the saying featured on the headstone; these
sayings are: “R.I.P.,” “Trick or Treat,” “Happy Haunting,” and “Ghoulish Greetings.” Id. When
the base of a Bobbling Bones figure is depressed, the arms, skull, and torso of the skeleton
become limp. See Kostenwein Aff. ¶ 6 (explaining that the functioning of the Bobbling Bones is
similar to that of the “Lazy Bones” collapsible skeleton article submitted to the court). 7 Once the
7
Samples of Bobbling Bones were not available to the court. As an alternative, plaintiff
submitted a collapsible string puppet (“Lazy Bones”). See Notice of Manual Filing at Ex. 3
(July 19, 2017), ECF No. 144 (collapsible skeleton similar to the “Bobbling Bones”). This
article varies somewhat from the catalog illustrations, in particular because it lacks a tombstone
(continued . . .)
Court No. 93-00391 Page 26
pressure on the bottom of the base is released, the bones of the skeleton snap back into the
original, upright position. See id.
a. Tariff Classifications Claimed by the Parties
Upon liquidation, Customs classified the Bobbling Bones in subheading 9503.90.60,
HTSUS (“Other toys . . . : Other: Other toys (except models), not having a spring mechanism”),
subject to duty at 6.8% ad val. See Am. Compl. ¶ 12(qq); Def.’s Am. Answer ¶ 12. Defendant
contends that the Bobbling Bones were properly classified on liquidation. See Def.’s Mot. 14-16.
Plaintiff argues that the correct classification for the Bobbling Bones is in subheading
9505.90.60, HTSUS (“Festive, carnival or other entertainment articles, including magic tricks
and practical joke articles . . . : Other: Other”), subject to duty at 3.1% ad val. Am. Compl. ¶ 21;
Pl.’s Mot. 26-28.
b. Tariff Classification of the Bobbling Bones
The Bobbling Bones push puppets have the amusing characteristics of toys. As shown in
the catalog illustration, see Pl.’s Rev. Ex. 43, they are not dolls and in any event depict partial
skeletons, not live or complete human beings, so the court may eliminate heading 9502, HTSUS
(“Dolls representing only human beings . . .”) from consideration. Heading 9503, HTSUS
(“Other toys . . .”), which is intended to encompass toys not classified in headings 9501 and
9502, HTSUS contains a term describing these push puppets.
Plaintiff maintains that heading 9505, HTSUS is the more appropriate heading in which
to classify the goods because, even if the Bobbling Bones are prima facie classifiable in
heading 9503, HTSUS, the goods must be classified according to their principal use, which
(. . . continued)
component and is a complete skeleton, but has a spring mechanism in the base and in that respect
is similar to the description of the Bobbling Bones articles. See Pl.’s Rev. Ex. 43 (Dec. 12,
2014), ECF No. 125 (catalog image of Bobbling Bones).
Court No. 93-00391 Page 27
plaintiff contends is as a “festive article.” Pl.’s Reply 24-28. The court is not persuaded by this
argument. The Bobbling Bones are not decorative articles, nor do they have the characteristics
of the other types of festive or other entertainment articles encompassed by heading 9505,
HTSUS. The association of the Bobbling Bones with Halloween is the depiction of a tombstone,
a part of a skeleton, and a Halloween-themed saying, but this association is the source of the
amusing characteristic of these articles as Halloween-themed toys. As the court has discussed,
heading 9505, HTSUS is not so broad as to encompass any kind of a toy simply because it has
the theme of a holiday or festive occasion.
The Bobbling Bones have amusing characteristics, but they lack the characteristics of the
magic tricks, practical joke articles and similar novelty items that find classification within
heading 9505, HTSUS. The “bobbling” feature is an amusing feature, not a “magic trick” or
“practical joke” feature.
As to the correct subheading, the court concludes that the subheadings applicable to
“[t]oys representing animals or non-human creatures” does not describe the whole article, which
consists of a tombstone as well as a partial skeleton. The subheading under which the article was
liquidated, 9503.90.60, HTSUS (“Other toys . . . : Other: Other toys (except models), not having
a spring mechanism”), is also incorrect. The court so concludes because these goods are “push
puppets” that require a spring mechanism in the base for their operation (as does “Lazy Bones”).
Therefore, by operation of GRI 6, HTSUS the correct subheading is 9503.90.70, HTSUS (“Other
toys . . . : Other: Other”). The duty rate is the same, 6.8% ad val.
5. The Articles of the Trick ‘n Treat Fun Center
Style No. 18181 is advertised in the Russ Berrie & Co. catalog as the “Trick ‘n Treat Fun
Center.” Pl.’s Rev. Ex 43. No sample was provided. According to plaintiff, the Trick ‘n Treat
Court No. 93-00391 Page 28
Fun Center is a collection of “similar Halloween gift items packaged and sold together.” Pl.’s
Mot. 11. Plaintiff states that the “items are collectively packaged and sold together at retail in a
jack-o’-lantern-designed gift basket” and “are intended as give-away items to trick or treaters on
Halloween.” Pl.’s Reply 28. The set contains an assortment of five articles: (1) “multiplying
viewers” (36 pieces); (2) “puzzle watches” (36 pieces); (3) “squirt balls” (24 pieces); (4) “paint
palettes” (36 pieces); and (5) “stencil sets” (36 pieces). Pl.’s Mot. 11; Pl.’s Rev. Ex. 43. They
are priced by the piece and by the “168 piece deal in counter display” at $75.60. Pl.’s Rev.
Ex. 43.
The multiplying viewers appear in the catalog as short, cylindrical tubes, id., and are
described by plaintiff as “small telescope-type articles,” Pl.’s Reply 27. They bear assorted
images such as skeletons, witches, and mummies on the outside of the viewing tube. Id. The
catalog price is $0.30 each. Pl.’s Rev. Ex. 43.
The next item, the “puzzle watches,” also have a catalog price of $0.30 each. Id.
Plaintiff describes these goods as “small, give-away, plastic wrist watches” that have
“puzzle-designed faces containing Halloween themes and images, e.g., witches, ghosts, and
jack-o’-lanterns.” Pl.’s Reply 27.
The “squirt balls” are roughly spherical in shape and come in three designs resembling a
blue monster, black cat, and bloody eyeball. Pl.’s Rev. Ex. 43. According to plaintiff, the squirt
balls, when filled with water and squeezed, squirt water out of the pinhole opening. Pl.’s
Reply 27. The catalog price for the squirt balls is $0.75 each. Pl.’s Rev. Ex. 43.
Next, the “paint palette” is a black, winged-bat shaped plastic board holding five
containers of dry paint in the colors of yellow, brown, orange, blue, and purple. Id. The paint
Court No. 93-00391 Page 29
palette comes with a small paint brush. Id. The catalog price is $0.50 each. Id. According to
plaintiff’s uncontested submission, the paint palettes feature watercolor paint. Pl.’s Reply 27.
Finally, the “stencil sets” are plastic stencils in the outer shape of a jack-o’-lantern (in
orange) and a cat (in black). Pl.’s Rev. Ex. 43. The catalog price for the stencil set is $0.50. Id.
Each stencil has multiple openings that can be used to trace shapes of objects associated with
Halloween, such as bats, cats, and flying witches. Pl.’s Reply 27-28.
a. Tariff Classifications Claimed by the Parties
Upon liquidation, Customs classified the multiplying viewers, stencil sets, and puzzle
watches in subheading 9503.90.60, HTSUS (“Other toys . . . : Other: Other toys (except models),
not having a spring mechanism”), subject to duty at 6.8% ad val. Id. at 27; Entry Docs. for Entry
No. 1314530-2. Customs classified the squirt balls in subheading 9505.90.20, HTSUS
(“Festive . . . or other entertainment articles, including . . . practical joke articles . . . : Other:
Magic tricks and practical joke articles . . .”), subject to duty at 5.8% ad val. Pl.’s Reply 27;
Entry Docs. for Entry No. 1314530-2. Customs classified the paint palettes in subheading
3213.10.00, HTSUS (“Artists’, students’ or signboard painters’ colors, . . . amusement colors and
the like, in tablets . . . or in similar forms or packings: Colors in sets”), subject to duty at 6.5% ad
val. Pl.’s Reply 27; Entry Docs. for Entry No. 1314530-2. Defendant supports these
classifications. Def.’s Reply 7-8.
Plaintiff contends that all of the items are properly classified in subheading 9505.90.60,
HTSUS (“Festive, carnival or other entertainment articles, including magic tricks and practical
joke articles . . . : Other: Other), subject to duty at 3.1% ad val. Am. Compl. ¶ 21.
b. Classification as Individual Articles
The threshold issue is whether the Trick ‘n Treat Fun Center is to be classified as a single
collection or as individual articles. As the court discusses below, one article in the Fun Center,
Court No. 93-00391 Page 30
the paint palette, if classified separately, would be classified under heading 3213, HTSUS
(“Artists’, students’ or signboard painters’ colors, . . . amusement colors and the like, in
tablets . . . or in similar forms or packings”) and not under heading 9503, HTSUS. See EN 95.03
(instructing that HS heading 95.03 excludes “[p]aints put up for children’s use (heading 32.13)).
Another group in the collection (the Squirt Balls) is classified under heading 9505, HTSUS.
Goods classifiable under different headings are classified in a single heading according to
essential character, by operation of GRI 3(b), HTSUS if they are “put up in sets for retail sale.”
To constitute a set put up for retail sale, the goods must be packaged together for retail sale and
also must be put up together to meet a particular need or carry out a specific activity.
See EN X(b) to General Interpretive Rule (“GIR”) 3(b). Here, the court cannot conclude that the
Fun Center is packaged exclusively for retail sale, as the Fun Center is described in a Russ
Berrie & Co. catalog as a “168 piece deal in counter display” with individually priced items. See
Pl.’s Rev. Ex. 43. Even were it assumed that it is a retail package, the collection still would not
qualify as being “put up in sets for retail sale” because the individual items have separate uses
and in that respect cannot be said to be packaged together to meet a particular need or carry out a
specific activity for purposes of GRI 3(b), HTSUS. From the examples given in Explanatory
Note X to GIR 3(b), the individual articles must meet a particular need or carry out a specific
activity; it is therefore insufficient for purposes of GRI 3(b), HTSUS that they are suitable for
handing out as Halloween gifts. EN X to GIR 3(b) gives as an example of a collection that is
“put up in sets for retail sale” goods comprising the components of a spaghetti meal (uncooked
spaghetti, grated cheese, and sauce) and gives as an example of a collection that does not qualify
as a set put up for retail sale a retail package consisting of different, unrelated food or beverage
items packaged together. In summary, the individual items of the Trick ‘n Treat Fun Center are
Court No. 93-00391 Page 31
designed for separate uses and therefore are not packaged together to meet a particular need or
carry out a specific activity for purposes of GRI 3(b), HTSUS.
The next question is whether, given the general character of the collection as articles for
amusement, the Trick ‘n Treat Fun Center could be classified entirely under heading 9503,
HTSUS. EN 95.03 provides the following guidance:
Collections of articles, the individual items of which if presented
separately would be classified in other headings in the Nomenclature, are
classified in this Chapter [95] when they are put up in a form clearly indicating
their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets).
EN 95.03. The articles in the Trick ‘n Treat Fun Center do not comprise a set of related articles
that together serve an individual amusement activity, as does a chemistry or sewing set. This is
especially the case because of the reference in the catalogue description to a “counter display,”
which connotes that the individual articles may be sold separately at retail. Therefore, the court
proceeds, as Customs did, to classify the articles individually. 8
c. The Multiplying Viewers
Defendant argues that the multiplying viewers are properly classified in the subheading in
which Customs classified the goods, subheading 9503.90.60, HTSUS (“Other toys . . . : Other:
Other toys (except models), not having a spring mechanism”), subject to duty at 6.8% ad val.
See Def.’s Reply 7; Entry Docs. for Entry No. 1314530-2. Plaintiff claims that the goods are
properly classified in subheading 9505.90.60, HTSUS (“Festive, carnival or other entertainment
articles, including magic tricks and practical joke articles . . . : Other: Other”), subject to duty at
8
The parties do not mention in their submissions the tariff treatment Customs accorded
upon liquidation to the “jack-o’-lantern-designed gift basket,” which appears from the catalogue
illustration to be a cardboard box container. The court does not address this issue because the
tariff treatment of the basket is not the subject of a claim by plaintiff.
Court No. 93-00391 Page 32
3.1% ad val. Am. Compl. ¶ 21. The court notes that there is no genuine issue of material fact
pertaining to the Multiplying Viewers.
The Multiplying Viewers have the “amusement” characteristics of toys. Plaintiff
describes these as “depicting . . . scary Halloween scenes.” Id. ¶ 12(rr). Despite this description,
the unit price of $0.30, see Pl.’s Rev. Ex. 43, demonstrates that any such function is limited and
more of an amusement than a utilitarian function. EN 95.03 clarifies that the scope of the
heading includes articles that “may be capable of a limited ‘use’” that is “generally
distinguishable by their size and limited capacity.”
Plaintiff does not argue that the Multiplying Viewers are not prima facie classifiable
under heading 9503, HTSUS but contends the goods should nonetheless be classified in
heading 9505, HTSUS as festive or other entertainment articles associated with Halloween. Pl.’s
Reply 28. Heading 9505, HTSUS is not correct because, as the court has explained, the
“amusement” articles within the scope of the terms of heading 9505, HTSUS are the magic tricks
and practical joke articles that find classification under that heading.
As Customs concluded upon liquidation, the Multiplying Viewers are classified under
subheading 9503.90.60, HTSUS (“Other toys . . . : Other: Other toys (except models), not having
a spring mechanism”), subject to duty at 6.8% ad val.
d. The Puzzle Watches
Defendant argues that the puzzle watches are properly classified in the subheading in
which Customs classified the goods upon liquidation, subheading 9503.90.60, HTSUS (“Other
toys . . . : Other: Other toys (except models), not having a spring mechanism”), subject to duty at
6.8% ad val. See Def.’s Reply 7; Entry Docs. for Entry No. 1314530-2. Plaintiff contends that
the puzzle watches are properly classified in subheading 9505.90.60, HTSUS (“Festive, carnival
Court No. 93-00391 Page 33
or other entertainment articles, including magic tricks and practical joke articles . . . : Other:
Other”), subject to duty at 3.1% ad val. Am. Compl. ¶ 21.
Because the puzzle watches are priced in the catalog at $0.30 each, see Pl.’s Rev. Ex. 43,
and because neither party states that they are actual watches, the undisputed facts show that these
articles are not correctly classified as timepieces and instead have the characteristics of toy
watches. The classification determined by Customs upon liquidation was correct. Classification
under heading 9505, HTSUS is not correct because these goods are not “festive, carnival or other
entertainment articles” within the scope of that heading, even though the faces of the toy watches
display Halloween themes. As the court has discussed, toys described by the terms of heading
9503, HTSUS are a class of goods distinct from the festive or other entertainment articles
classifiable under heading 9505, HTSUS.
e. The Squirt Balls
Customs classified the squirt balls as entered, which was in subheading 9505.90.20,
HTSUS (“Festive . . . or other entertainment articles, including . . . practical joke articles . . . :
Other: Magic tricks and practical joke articles . . .”), subject to duty at 5.8% ad val., Entry Docs.
for Entry No. 1314530-2, and defendant supports this classification, see Def.’s Reply 7.
Plaintiff contends that the squirt balls are properly classified in subheading 9505.90.60,
HTSUS (“Festive . . . or other entertainment articles, including . . . practical joke articles . . . :
Other: Other”), subject to duty at 3.1% ad val. Am. Compl. ¶ 21. The court determines that
there is no genuine issue of material fact as to these articles.
The squirt balls are “practical joke” articles described by the terms of heading 9505,
HTSUS (“Festive . . . or other entertainment articles, including . . . practical joke articles . . .”).
The practical joke aspect is provided by the disguised ability to shoot a stream of water toward
an unsuspecting victim. EN 95.05 mentions as an example of the “conjuring tricks and novelty
Court No. 93-00391 Page 34
jokes” of heading 95.05 “water-jet button-holes,” which are similar to the articles in question.
Plaintiff claims that the squirt balls should be classified in the “basket” subheading, 9505.90.60,
HTSUS, subject to duty at 3.1% ad val. This subheading is not correct because it pertains only
to goods that are not classified in subheading 9505.90.20, HTSUS as “practical joke articles,” a
subheading term that precisely describes the squirt balls.
f. The Paint Palettes
Customs classified the paint palettes in subheading 3213.10.00, HTSUS (“Artists’,
students’ or signboard painters’ colors, . . . amusement colors and the like, in tablets . . . or in
similar forms or packings: Colors in sets”), subject to duty at 6.5% ad val. Pl.’s Reply 27; Entry
Docs. for Entry No. 1314530-2. Defendant supports the classification of the goods in this
manner before the court. See Def.’s Reply 7.
Plaintiff contends that the paint palettes should be classified in subheading 9505.90.60,
HTSUS (“Festive, carnival or other entertainment articles . . . : Other: Other”), subject to duty at
3.1% ad val. Am. Compl. ¶ 21.
The term “amusement colors” of heading 3213, HTSUS specifically describes the paint
palettes. EN 95.03 confirms the intent of the HS drafters that paint sets for children’s use are
classified under heading 32.13 rather than as toys of heading 95.03. Plaintiff’s position that the
term “festive . . . or other entertainment articles” of heading 9505, HTSUS also describes this
good does not accord with the undisputed facts. The article is an inexpensive ($0.50 each)
watercolor set of a type suitable for children and must be classified as such. The winged-bat
shape of the palette does not by itself impart to this article the character of a Halloween
decoration or other article falling within the scope of heading 9505, HTSUS.
Plaintiff acknowledges that the paint palettes are prima facie classifiable under
heading 3213, HTSUS but nonetheless posits that heading 9505, HTSUS more properly
Court No. 93-00391 Page 35
describes the goods “by application of GRI 3(a) and the Rule of Relative Specificity.” Pl.’s
Reply 28. GRI 3(a) applies when there are two headings that both prima facie describe the
merchandise to be classified. That situation is not present here.
The next issue is the selection of the correct subheading. The paint palette is a set
featuring several colors, packaged together with a paintbrush. The correct subheading is,
therefore, the one determined by Customs, subheading 3213.10.00, HTSUS (“Colors in sets”),
subject to duty at 6.5% ad val. on the entire set.
g. The Stencil Sets
Defendant argues that the stencil sets are properly classified in the subheading in which
Customs classified the goods, subheading 9503.90.60, HTSUS (“Other toys . . . : Other: Other
toys (except models), not having a spring mechanism”), subject to duty at 6.8% ad val. See
Def.’s Reply 7; Entry Docs. for Entry No. 1314530-2. Plaintiff contends that the stencil sets, like
the other items in the Trick ‘n Treat Fun Center, are properly classified in subheading
9505.90.60, HTSUS (“Festive, carnival or other entertainment articles, including magic tricks
and practical joke articles . . . : Other: Other”), subject to duty at 3.1% ad val. Am. Compl. ¶ 21.
The court can eliminate heading 9505, HTSUS from consideration because the stencil
sets are not Halloween decorations or other articles falling within the scope of that heading.
Heading 9017, HTSUS deserves consideration due to the inclusion therein of the term
“[d]rawing, marking-out or mathematical calculating instruments (for example, drafting
machines, pantographs, protractors, drawing sets, slide rules, disc calculators).” EN 90.17
clarifies that the heading covers “[s]tencils of a kind clearly identifiable as being specialised as
drawing instruments.” EN 90.17 (emphasis removed). This note indicates that not all stencils
fall within the heading. The stencils in question here have characteristics typical of toys. They
are small and inexpensive ($0.50 each set). Pl.’s Rev. Ex. 43. The orange stencil is shaped as a
Court No. 93-00391 Page 36
jack-o’-lantern and the black one is in the shape of a cat. Id. The openings for drawing are in
Halloween themes. Id. These physical characteristics indicate that the stencils are articles
designed more for the amusement of children rather than as specialized drawing instruments.
See EN 95.03 (explaining that toys may be capable of limited use but “are generally
distinguishable by their size and limited capacity”).
Plaintiff acknowledges that the stencil sets are prima facie classifiable under
heading 9503, HTSUS but argues that they are nonetheless properly classified under
heading 9505, HTSUS because of “the application of GRI 1 and principal use.” Pl.’s Reply 28.
Because the stencils are not suitable for use as decorations and do not have the characteristics of
the goods classifiable under heading 9505, HTSUS, this argument is unavailing.
With respect to subheading, the court determines that the stencil sets are properly
classified as Customs classified them, in subheading 9503.90.60, HTSUS (“Other toys . . . :
Other: Other toys (except models), not having a spring mechanism”), subject to duty at 6.8% ad
val.
6. The “Christmas Hugs”
According to the Russ Berrie & Co. catalog page submitted by plaintiff, the Christmas
Hugs are small, rounded objects depicting non-human creatures. Pl.’s Rev. Ex. 42. Each figure
consists of a head (with a red bulb for a nose) out of which emerge two hands with five fingers
each and two feet with three toes each. Id. The Hugs are sold in a packages that state “I’m a
Hug.” Id. Hugs come with one of six messages related to Christmas. Am. Compl. ¶ 12(w). In
its supplemental submission, plaintiff provided a sample Hug, similar to the Christmas Hugs but
with one pair of appendages and no Christmas-related message. Notice of Manual Filing at
Ex. 4. It is a plastic article, two inches tall, labeled “I’m a Best Friend Hug” and has a message
Court No. 93-00391 Page 37
printed on the packaging, “Close at heart . . . in all we do, It’s so nice to have a friend like you!”
Id.
a. Tariff Classifications Claimed by the Parties
Upon liquidation, Customs classified the Christmas Hugs in subheading 9503.90.60,
HTSUS (“Other toys . . . : Other: Other toys (except models), not having a spring mechanism”),
subject to duty at 6.8% ad val. See Am. Compl. ¶ 12(w); Def.’s Am. Answer ¶ 12. Defendant
contends that classification under heading 9503, HTSUS is appropriate. See Def.’s Mot. 14-16.
Plaintiff claims the Christmas Hugs should have been classified in subheading 9505.10.25,
HTSUS (“Festive . . . or other entertainment articles . . . : Articles for Christmas festivities . . . :
Christmas ornaments: Other: Other”), temporarily free of duty according to subheading
9902.95.05, HTSUS. Am. Compl. ¶ 19.
b. Tariff Classification of the Christmas Hugs
From the catalog illustration and the sample provided, there can be no genuine issue of
material fact as to the nature of the Christmas Hugs. Nothing about their physical structure,
appearance, or packaging indicates that they are Christmas decorations or articles traditionally
used at Christmas. Instead, these small plastic, cartoon-like figures have the amusing
characteristics of toys. Accordingly, the Christmas Hugs are classified under heading 9503,
HTSUS (“Other toys . . .”). Determining the proper subheading requires the court to consider
whether the Christmas Hugs possess features that represent “animals or non-human creatures.”
The undisputed evidence requires the court to conclude that the Christmas Hugs do in fact
represent “non-human creatures.” See Pl.’s Rev. Ex. 42. For example, each Christmas Hug has
a head to which hands and feet, but no body, is attached. Because the Christmas Hugs represent
“non-human creatures,” the subheading determined by Customs was incorrect. The proper
Court No. 93-00391 Page 38
subheading for the Christmas Hugs is 9503.49.00, HTSUS (“Other toys . . . : Toys representing
animals or non-human creatures . . . : Other”), also subject to duty at 6.8% ad val.
7. The Candleholders
Style No. 14384, “Porcelain Embossed Mini Message Votives,” are porcelain
candleholders for votive candles, in three designs: (1) a design showing figures in pilgrim attire;
(2) a design showing various food items and the phrase “Bless Our Home”; and (3) a design
bearing the phrase “Let Us Give Thanks for Family and Friends.” Pl.’s Rev. Ex. 43. These
designs are not two-dimensional but protrude out from the cylindrical candleholder, akin to a
frieze. Id.
Style No. 2462, “Christmas Votive Candles,” are two-and-a-half inch tall earthenware
candleholders made to hold votive candles. Pl.’s Rev. Ex. 42. Each of the four candleholders
depicts a unique design: (1) an image of a teddy bear wearing a Santa Claus hat and the phrase
“Have A Magical Christmas”; (2) an image of Santa Claus and the phrase “Merry Christmas”;
(3) an image of a snowman “with holly and berries in its hat, a red and white scarf, a traditional
candy cane in its hand, and with holiday gifts” at its feet and the phrase “Friends Make The
Holidays Happy”; and (4) an image of three carolers and the phrase “Dreams Come True At
Christmas.” Id.; Am. Compl. ¶ 12(y).
Style No. 35744 is the “Little Miracles” porcelain candleholder. Pl.’s Rev. Ex. 42. The
candleholder is three-and-three-quarter inches in diameter by five inches in height. Id. Plaintiff
included a sample of this article in its supplemental submission. Notice of Manual Filing at
Ex. 5. The article depicts three child-like angels with wings that are wearing winter hats, coats,
and boots. Id. The angels are arranged in a circle facing outwards on a circular base, at the
Court No. 93-00391 Page 39
center of which is a metal fitting suitable for holding a taper-style candle. Id. The packaging
includes a message mentioning Christmas and the “joy of the season.” Id.
a. Tariff Classifications Claimed by the Parties
Upon liquidation, Customs classified the candleholders in subheading 9405.50.40,
HTSUS (“Lamps and lighting fittings . . . not elsewhere specified or included . . . : Non-electrical
lamps and lighting fittings: Other: Other”), subject to duty at 7.6% ad val., see, e.g., Am. Compl.
¶ 12(x); Def.’s Am. Answer ¶ 12, which defendant contends before the court is the proper
classification, Def.’s Mot. 16-17. 9
Plaintiff argues that the candleholders in Thanksgiving themes should be classified in
subheading 9505.90.60, HTSUS (“Festive . . . articles . . . : Other: Other”), subject to duty at
3.1% ad val. Am. Compl. ¶ 21. Plaintiff claims that certain candleholders with Christmas
themes should be classified in subheading 9505.10.25, HTSUS (“Festive . . . articles . . . :
Articles for Christmas festivities . . . : Christmas ornaments: Other: Other”), temporarily free of
duty pursuant to subheading 9902.95.05, HTSUS. See id. ¶ 19 (stating that articles including the
porcelain “Little Miracles” should be classified in subheading 9505.10.25, HTSUS). Plaintiff
claims that other candleholders with Christmas themes should be classified in subheading
9505.10.50, HTSUS (“Festive . . . articles . . . : Articles for Christmas festivities . . . : Other:
Other”), subject to duty at 5.8% ad val. Id. ¶ 20 (stating that articles including the “Christmas
Votive Candles” (Style No. 2462) should be classified in subheading 9505.10.50, HTSUS).
9
Plaintiff’s amended complaint states that certain porcelain candleholders were classified
by Customs on liquidation in heading 9503, HTSUS (“Other toys . . .”). See Am. Compl.
¶ 12(ww).
Court No. 93-00391 Page 40
b. Tariff Classification of the Candleholders
The court considers the two headings the parties identify, headings 9405 and 9505,
HTSUS, having identified no other competing headings. As required by GRI 1, the court
considers the terms of these headings and any relative section and chapter notes.
Dictionary definitions of the term “lamps” indicate that the term can be used to describe
candleholders. See, e.g., 8 The Oxford English Dictionary 609-10 (2d ed. 1989) (defining lamp
as “[a] vessel containing oil, which is burnt at a wick, for the purpose of illumination. Now also
a vessel of glass or some similar material, enclosing the source of illumination, whether a candle,
oil, gas-jet, or incandescent wire”); see also EN 94.05(I) (“Lamps . . . of this group can be
constituted of any material . . . and use any source of light . . . [and] covers in particular: . . .
Candelabra, candlesticks, candle brackets, e.g., for pianos.) (emphasis in original). 10
Because the terms of heading 9405, HTSUS (“Lamps . . . not elsewhere specified or
included . . .” (emphasis added)) encompass only those lamps that do not fall within the scope of
other headings of the HTSUS, the court must consider whether the candleholders in question also
fall within the scope of a term of heading 9505, HTSUS, which is “[f]estive . . . or other
entertainment articles.” Because of this limitation on the scope of heading 9405, HTSUS, only
one of the two headings, 9405 or 9505, HTSUS, can be correct for the candleholders in question.
Each of the candleholders has a “decorative” characteristic and display holiday-related
themes (Christmas or Thanksgiving). It is well established that the term “festive . . . or other
entertainment articles” as used in heading 9505, HTSUS may include decorative items associated
10
Unlike candleholders, candles are excluded from the heading. See EN 94.05; Heading
3406, HTSUS (“Candles, tapers and the like”).
Court No. 93-00391 Page 41
with a particular holiday or festival, and the fact that an article also has a utilitarian function did
not by itself exclude an article from the heading at the time these goods were entered. 11
GRI 1 requires the court to consider, in addition to the terms of the headings, “any
relative section or chapter notes.” GRI 1, HTSUS. Two chapter notes of the HTSUS are
particularly instructive as to the question of which of the two headings is correct for the
candleholders. Note 1(a)-(l) to chapter 94, HTSUS is a list of exclusions from chapter 94. One
of the exclusions, note 1(l), excludes from chapter 94, HTSUS, inter alia, “decorations (other
than electric garlands) such as Chinese lanterns (heading 9505).” A related exclusion from
chapter 95, HTSUS is contained in note 1(t) to chapter 95, which excludes from that chapter
“[e]lectric garlands of all kinds (heading 9405).”
Read together, the two exclusions instruct that some “lamps” that are also “decorations”
fall within the scope of heading 9405, HTSUS while others fall within the scope of heading
9505, HTSUS. “Electric garlands” is a term the court did not find in common dictionaries, but
the intended meaning of the term as used in the two related chapter notes is revealed by the
Explanatory Note to heading 94.05, which provides as guidance that heading 94.05 “covers in
particular . . . electric garlands (including those fitted with fancy lamps for carnival or
entertainment purposes or for decorating Christmas trees).” EN 94.05. Thus, according to the
chapter notes, garlands, which are decorations, and electric garlands, which typically are
decorations and also are lamps, are classified in heading 9405, HTSUS and excluded from
heading 9505, HTSUS. For example, a string of decorative electric lights (suitable, for example,
11
The HTSUS was amended to provide that heading 9505, HTSUS excludes articles that
contain a festive design, decoration, emblem or motif and that also have a utilitarian function
(e.g., apparel). Note 1(v) to Chapter 95, HTSUS (effective Feb. 3, 2007). Because the
candleholders were entered prior to the effective date of the amendment, the amendment does not
govern classification in this case.
Court No. 93-00391 Page 42
as Christmas or Halloween decorations) would be classified under heading 94.05 and not under
heading 95.05, despite the decorative “holiday” or “festive” characteristic.
The court finds it significant that note 1(l) to chapter 94 does not exclude from chapter 94
all lamps that are decorations but instead excludes “decorations . . . such as Chinese lanterns
(heading 9505).” The court, therefore, must discern the class of illuminating decorations of
which Chinese lanterns are an example. Neither the HTSUS nor the Explanatory Notes define
the term “Chinese lantern,” but dictionary definitions are instructive. See Webster’s Third New
International Dictionary 390 (1986) (defining a “Chinese lantern” as “a collapsible lantern of
thin colored paper mostly for ceremonial or decorative use”); 3 The Oxford English
Dictionary 128 (2d ed. 1989) (defining a “Chinese-lantern” as “a collapsable lantern of thin
coloured paper, chiefly used in illuminations”). Under these definitions, a Chinese lantern must
be considered to fall within the common meaning of the term “lamp.”
The question presented, then, is which holiday-themed or festive illuminating decorations
fall within heading 9405, HTSUS and which fall within heading 9505, HTSUS; as the court has
noted, an article cannot fall within both. While clearly lamps, it is less clear that the
candleholders at issue fall within the intended meaning of the term “festive . . . or other
entertainment articles,” a term that has engendered considerable tariff litigation. Plaintiff relies
on several appellate decisions in support of its classification position that they do, see Pl.’s
Mot. 26-29, but none of these decisions is controlling on the narrow question presented, which
involves only decorative, holiday-themed porcelain or earthenware candleholders. In addition to
the indications the court gleans from note 1(l) to chapter 94 and note 1(t) to chapter 95, EN 95.05
provides helpful guidance in stating that heading 95.05 “covers . . . Festive, carnival or other
entertainment articles, which in view of their intended use are generally made of non-durable
Court No. 93-00391 Page 43
material.” EN 95.05(A). Within the limitation that they are generally made of non-durable
material, the EN lists various examples of decorations that fall within heading 95.05, some of
which are lamps:
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.
EN 95.05(A)(1) (emphasis added). Chinese lanterns serve as examples of non-durable
illuminating decorations, being typically constructed of paper. Other examples of articles falling
within heading 95.05, as provided by EN 95.05, and also within the limitation that they are
generally made of non-durable material, are “[a]rticles traditionally used at Christmas festivities,
e.g., artificial Christmas trees (these are sometimes of the folding type), nativity scenes,
Christmas crackers, Christmas stockings, imitation yule logs.” EN 95.05(A)(2).
The court notes, further, that candleholders are expressly identified in EN 94.05 as a class
or kind of goods within the scope of heading 94.05. In comparison, EN 95.05 does not make
specific mention of candleholders even though specifically identifying (as do the relevant
HTSUS chapter notes) a class of non-durable decorative lamps, i.e., Chinese lanterns, as falling
within the scope of heading 95.05.
Note 1(l) to chapter 9405, HTSUS and note 1(t) to chapter 9505, HTSUS when read
together and also interpreted consistently with the guidance provided in the Explanatory Notes,
indicate a general principle under which certain illuminating decorations associated with festive
or holiday occasions fall within heading 9505, HTSUS, but these, as a general matter, are
constructed of non-durable material. In summary, the different treatment accorded to electric
garlands and to Chinese lanterns by the relevant chapter notes, the placement of “decorations . . .
Court No. 93-00391 Page 44
such as Chinese lanterns,” but not all illuminating decorations (whether or not holiday–or
festival–themed) within heading 9505, HTSUS, the mention of candleholders in EN 94.05 and
the absence of a similar mention in EN 95.05, and the clarification in EN 95.05 that identifies the
criterion of durability of construction as relevant to classification, are consistent in indicating an
intended division between the two headings when applied to the particular situation posed by
festive or holiday-themed decorations with an illuminating function. In summary, the HTSUS
embodies a general principle that goods that are holiday-themed decorations but also are lamps,
if of a non-durable construction, fall within the scope of heading 9505, HTSUS, while such
decorations of more durable construction (such as the candleholders at issue in this case)
generally do not and remain classified under heading 9405, HTSUS. 12
There can be no genuine dispute that the candleholders at issue, being either porcelain or
earthenware, are made of durable material, befitting the candle-holding function for which they
are designed. The court concludes that by operation of GRI 1, HTSUS, in full consideration of
the terms of the competing headings and the relative chapter notes, the candleholders at issue are
properly classified under heading 9405, HTSUS. The correct subheading, as defendant
maintains, is subheading 9405.50.40, HTSUS (“Lamps and lighting fittings . . . not elsewhere
12
EN 95.05 provides that the festive, decorative articles of heading 95.05 generally are
made of non-durable material. The use of the qualifier “generally” and the examples given in the
note suggest that there are exceptions (e.g., “nativity scenes”) that in some instances might be
rather durable yet still find classification under the heading. But in the particular situation of
lamps, Note 1(l) to chapter 94, HTSUS and note 1(t) to chapter 95, HTSUS indicate that the
court, to reach the correct result according to GRI 1, HTSUS, must draw a distinction between
the class or kind of non-durable, festive or holiday-themed decorative lamps, which are classified
under heading 9505, HTSUS, and the class or kind consisting of more durable ones, such as
Christmas tree lights and porcelain or earthenware candleholders, which are classified under
heading 9405, HTSUS.
Court No. 93-00391 Page 45
specified or included . . . : Non-electrical lamps and lighting fittings: Other: Other”), subject to
duty at 7.6% ad val.
8. The “Etched Images Plaque”
Style No. 14700 is labeled on the packaging as an “Etched Images Plaque.” Am. Compl.
¶ 12(yy); Pl.’s Rev. Ex. 44. According to the undisputed facts submitted by the parties and an
examination of a sample plaintiff provided in its supplemental submission, the Etched Images
Plaque is a rectangular object, five-and-a-half inches tall and four inches wide. Notice of
Manual Filing at Ex. 2. The component forming the background for the design is a thin, clear
Lucite panel in the five-and-a-half inch by four inch outer dimensions, with beveled edges. Id.
The article also features a metal rod that, when inserted from the back through a hole drilled into
the lower central portion of the Lucite panel and secured with a threaded metal cap that protrudes
from the front of the panel, serves as a stand allowing the object to be displayed nearly vertically
on a flat surface. Id. At the top of the plaque, etched from the back, are images of a white, six-
petaled flower depicting an Easter Lily and a white dove. Id. Images of a gold chalice and
another Easter Lily are etched at the bottom. Id. At the center of the plaque, in black script, is
the following message: “The Lord is risen, alleluja! May His peace be with you always, and
may He bestow on you His promise of the Holy Spirit, strong faith, abiding hope, and enduring
love.” 13 Id.
a. Tariff Classifications Claimed by the Parties
Upon liquidation, Customs classified the Etched Images Plaque in subheading
3926.40.00, HTSUS (“Other articles of plastics . . . : Statuettes and other ornamental articles”),
13
The Etched Images Plaque was featured in Russ Berrie & Co.’s Easter catalog for 1993
and sold for $5.50 each. Pl.’s Rev. Ex. 44. This catalog also lists for sale Trolls wearing Easter
Bunny costumes and candleholders with Easter Bunny motifs. See id. As discussed below, the
court makes its classification determination without considering this catalog.
Court No. 93-00391 Page 46
subject to duty at 5.3% ad val. See Am. Compl. ¶ 12(yy); Def.’s Am. Answer ¶ 12. Before the
court, defendant advocates classification under heading 3924, HTSUS (“Tableware, kitchenware,
other household articles and toilet articles, of plastics”), arguing that this article “is prima facie
classified as other household articles of plastics in Heading 3924.” Def.’s Mot. 17. Plaintiff
argues that the plaque is properly classified in subheading 9505.90.60, HTSUS (“Festive . . . or
other entertainment articles . . . : Other: Other”), subject to duty at 3.1% ad val. Am. Compl.
¶ 21; Pl.’s Reply 23-24.
b. Tariff Classification of the Etched Images Plaque
The court eliminates from consideration heading 3924, HTSUS (“Tableware,
kitchenware, other household articles and toilet articles, of plastics”) and heading 3926, HTSUS
(“Other articles of plastics and articles of other materials of heading 3901 to 3914”). These
headings do not describe the entire article but only a part thereof. As the sample shows, the
Etched Images Plaque is assembled from seven components, only one of which is plastic. Notice
of Manual Filing at Ex. 2. The two-piece threaded stand assembly and the gold frame, which is
of four pieces, are of metal. Id. These are not insignificant components. The gold frame is
integral to the decorative aspect of the article, harmonizing with the gold-metallic-toned etched
image of the chalice. The two-piece threaded metal stand, also gold-toned, allows the item to
function as a decorative article that is designed to be displayed on a horizontal surface.
Unlike the other candidate headings, which do not describe the whole article, heading
9505, HTSUS contains a term, “festive . . . articles,” that describes the Etched Images Plaque in
the entirety. The heading contains within its scope certain decorations that are associated with
particular holidays or festivals. The sample demonstrates, beyond any genuine issue of material
fact, that the Etched Images Plaque is an Easter decoration. The Easter Lilies, the gold chalice
Court No. 93-00391 Page 47
(depicting the Holy Chalice of the Last Supper), and the message referencing the resurrection of
Jesus Christ are symbolic of the Easter holiday. Classification under heading 9505, HTSUS is,
therefore, correct. See, e.g., Midwest of Cannon Falls, 122 F.3d at 1429 (classifying under
heading 9505, HTSUS an Easter water globe).
Defendant argues that the article “fails the criteria for ‘festive article’ developed by the
United States Court of Appeals for the Federal Circuit . . . in the Midwest, Park, and Michael
Simon cases because it is not so tied to a festive occasion that it would be aberrant to use the
plaque year-round.” Def.’s Mot. 4-5 (footnote omitted). The court disagrees with this logic.
The cited cases did not involve merchandise analogous to the Etched Images Plaque and raised
different considerations. Moreover, defendant’s argument disregards the readily apparent
symbolism of the Easter Lilies and the gold chalice. It also disregards the wording of the
inscribed message, which pertains to Easter.
In summary, heading 9505, HTSUS is the correct heading for classification of the Etched
Images Plaque by operation of GRI 1, HTSUS. Within the heading, the correct subheading is the
one advocated by plaintiff, subheading 9505.90.60, HTSUS (“Festive . . . or other entertainment
articles . . . : Other: Other”), subject to duty at 3.1% ad val.
9. The “Baby Booties”
At issue is the tariff classification of four styles of merchandise (Style Nos. 1419, 1424,
1458, and 3050) identified as “Feet Treats Baby Booties” or “Mistle-Toes Baby Booties.” See
Letter from Simon Gluck & Kane LLP to Ct. at Sched. 1. All are footwear designed to be worn
by infant children. They are shaped like a shoe, cover the entire foot, taper around the toes, and
extend to the wearer’s ankle, where the bootie is secured around the ankle by an elastic inner
strap. See Pl.’s Rev. Ex. 42; Pl.’s Rev. Ex. 43. The top of each bootie is decorated with a design
Court No. 93-00391 Page 48
of a face that relates to the Halloween, Thanksgiving, or Christmas season. See Pl.’s Rev.
Ex. 42; Pl.’s Rev. Ex. 43.
Style Nos. 1419 and 1458 depict ghosts (in white, with extended “hands”),
jack-o’-lanterns (in orange, one version with teeth, one without), or “bats” (in dark blue, with
orange “ears”). Pl.’s Rev. Ex. 43; Pl.’s Reply 22-23. Style No. 1458 appears in Russ Berrie &
Co.’s Halloween and Thanksgiving 1992 catalog with the descriptions “‘Feet Treats’ Baby
Booties with no slip bottoms,” “2 dozen assortment in counter display,” and “4 assorted styles.”
Pl.’s Rev. Ex. 43. Both style numbers appear on the catalog page that bears the general
description “Halloween” and that has an illustration of a witch on a broomstick inside a crescent
moon. Id. Style No. 1419 (“Feet Treats”) appears to be the same as Style No. 1458, except that
it is a “1 dozen assortment.” Id.
Style No. 1424 has a symbol of a turkey with the word “Thanksgiving” written across it
and appears in the same Russ Berrie & Co. catalog. See id. This style number also has the
description “‘Feet Treats’ Baby Booties” and was offered for sale as a “1 dozen assortment.” Id.
The catalog page lists “2 styles,” “Male Turkey” (with what appears to be a pilgrim’s hat) and
“Female Turkey” (with what appears to be a pilgrim’s bonnet); both are principally in shades of
orange and have large protruding orange “ears.” Id.
Style No. 3050 appears in Russ Berrie & Co.’s Christmas 1992 catalog on a page that
contains the image of a Christmas tree. See Pl.’s Rev. Ex. 42. This style number has the
descriptions “Mistle-Toes Baby Booties with no slip bottoms,” “[a] 1 dozen assortment” and
“[c]onsists of 3 styles.” Id. The listed styles are “Santa – 6 pieces,” “Snowman – 3 pieces,” and
“Reindeer – 3 pieces.” Id. The Santa style is in mostly white with red accents, the Snowman is
Court No. 93-00391 Page 49
mostly white with gray ears and a black hat, and the Reindeer is in mostly brown with protruding
“ears” and “antlers.” Id.
a. Tariff Classifications Claimed by the Parties
Upon liquidation, Customs classified all of the Baby Booties in subheading 6405.20.90,
HTSUS (“Other footwear: With uppers of textile materials: Other”), subject to duty at 12.5% ad
val. See, e.g., Am. Compl. ¶ 12(bb); Def.’s Am. Answer ¶ 12. Before the court, defendant
claims that this is the proper classification. Def.’s Mot. 17. For the reasons discussed below, the
court concludes that plaintiff has failed to demonstrate that the government’s classification is
incorrect.
Plaintiff claims that the Baby Booties displaying Christmas themes are properly classified
according to subheading 9505.10.50, HTSUS (“Festive . . . or other entertainment articles . . . :
Articles for Christmas festivities . . . : Other: Other”), subject to duty at 5.8% ad val. Am.
Compl. ¶ 20. For the remaining styles of Baby Booties, plaintiff claims classification in
subheading 9505.90.60, HTSUS (“Festive . . . or other entertainment articles . . . : Other: Other),
subject to duty at 3.1% ad val. Am. Compl. ¶ 21.
b. Tariff Classification of the Baby Booties
In response to questions by the court about the composition of the Baby Booties, plaintiff
submitted three samples of Baby Booties. Notice of Manual Filing at Exs. 6-8. They are not in
the same styles as the Baby Booties that were imported on the entries at issue in this case
(samples of which are no longer available), but they appear to be of the same construction as the
Baby Booties at issue, according to illustrations in plaintiff’s catalogs. The court bases its
classification decision on the catalog illustrations and the samples.
Footwear, as a general matter, is classified within section XII of the HTSUS, in
chapter 64 (“Footwear, gaiters and the like; parts of such articles”). Footwear of textile material
Court No. 93-00391 Page 50
without applied soles are an exception to this general principle and are classified within
section XI (“Textile and textile articles”). Note 1(a) to Chapter 64, HTSUS (excluding from
chapter 64, HTSUS “[f]ootwear without applied soles, of textile material (Chapter 61 or 62)”).
More specifically, headings 6111, HTSUS (“Babies’ garments and clothing accessories,” of
knitted or crocheted fabrics) and 6209, HTSUS (“Babies’ garments and clothing accessories,” of
fabrics other than knitted or crocheted fabrics) include certain types of baby booties. The booties
of these headings are those “without an outer sole glued, sewn, or otherwise affixed or applied to
the upper.” ENs 61.11, 62.09; see Note 1(a) to Chapter 64, HTSUS.
The court’s examination of the samples and illustrations reveals that the Baby Booties
have outer soles that are separate from the uppers and are sewn to the uppers at the bottom edge.
As shown by labels on the samples, the uppers are made of “polyester fiber” and the soles are
“100% cotton.” They are, therefore, not excluded from chapter 64, HTSUS by reason of their
construction. Within chapter 64, the first four headings do not describe the baby booties. See
HTSUS headings 6401 (certain waterproof footwear), 6402 (footwear with outer soles and
uppers of rubber or plastics), 6403 (footwear with outer soles of rubber, plastics, leather or
composition leather and uppers of leather), and 6404 (footwear with outer soles of rubber,
plastics, leather or composition leather and textile uppers). The Baby Booties are described by
the terms of heading 6405, HTSUS (“Other footwear”). Within the heading, subheading
6405.20.90, HTSUS applies to “[o]ther footwear: [w]ith uppers of textile materials: [o]ther,”
subject to duty at 12.5% ad val. This is the classification determined by Customs upon
liquidation.
Plaintiff submits that the Baby Booties are excluded from classification in heading 6405,
HTSUS, arguing that Michael Simon Design “rejected” the “argument that ‘normal articles of
Court No. 93-00391 Page 51
apparel’ were excluded from classification under Heading 9505, HTSUS.” Pl.’s Mot. 27
(citation omitted). This argument is unpersuasive because the Baby Booties are footwear, not
apparel. As the court has pointed out, these goods, having outer soles that are separate from the
uppers, are classified in section XII, HTSUS (“Footwear, gaiters and the like; parts of such
articles”), not in section XI, HTSUS (“Textile and textile articles”). Because Michael Simon
Design did not involve the tariff classification of footwear bur rather involved apparel,
specifically, certain sweaters with Christmas or Halloween motifs, the case does not establish a
precedent controlling on the tariff classification issue presented by the Baby Booties. It is also
dissimilar to this case with respect to certain of its reasoning. In significant part, the Court of
Appeals based its conclusion that the sweaters with holiday or similar themes were to be
classified under heading 9505, HTSUS rather than within chapter 61, HTSUS on the effect of
note 1(t) to section XI, HTSUS (providing that section XI (which includes the apparel chapters,
chapters 61 and 62, HTSUS) “does not cover: . . . [a]rticles of chapter 95 (for example, toys,
games, sports requisites and nets)”). See Michael Simon Design, 501 F.3d at 1306 (“The notes to
Section XI of the HTSUS, in which chapters 61 and 62 fall, expressly state that the section does
not cover articles of chapter 95. Thus, the tariff scheme contemplates articles falling into both
apparel and festive article categories, and it expressly resolves this conflict in favor of
classification in chapter 95.” (citation omitted)). The HTSUS does not contain a provision for
chapter 64 (“Footwear, gaiters and the like . . .”), which is in section XII, that is analogous to
note 1(t) to section XI. 14
14
After the goods at issue were entered, the Explanatory Notes were amended to explain
that heading 95.05 “excludes articles that contain a festive design, decoration, emblem or motif
and have a utilitarian function, e.g., . . . apparel.” EN 95.05. As the court noted earlier, note 1(v)
to chapter 95, HTSUS (effective Feb. 3, 2007), which effectuated in U.S. law the change in the
(continued . . .)
Court No. 93-00391 Page 52
Plaintiff also argues that the Baby Booties are excluded from classification under
heading 6405, HTSUS by note 1(e) to chapter 64, HTSUS. Pl.’s Reply 22-23. That note states
that chapter 64, HTSUS “does not cover: . . . [t]oy footwear or skating boots with ice or roller
skates attached.” Note 1(e) to Chapter 64, HTSUS. Plaintiff argues that the Baby Booties are
“toy footwear” on the premise that they “qualify under the recognized definition of ‘toys’”
because they “provide the same degree of ‘entertainment, amusement or merriment’ to enhance
‘the state of merriment at the yuletide [or other festive] holiday season’ as recognized by the
courts as indicative of festive articles.” Pl.’s Reply 23 (quoting Midwest of Cannon Falls, 122
F.3d at 1427. This argument fails to confront the uncontested fact that the Baby Booties are
designed as real footwear for infants, not playthings for children or adults. While some footwear
(specifically, sportswear) is identified by note 1(e) as falling within chapter 95, HTSUS (the
chapter plaintiff submits is correct), the note, notably, does not provide for classification of
footwear within heading 9505, HTSUS. See Note 1(e) to Chapter 64, HTSUS (excluding from
chapter 64 “[t]oy footwear or skating boots with ice or roller skates attached; shin-guards or
similar protective sportswear (chapter 95)”). 15
(. . . continued)
international HS nomenclature, excludes from classification in heading 9505, HTSUS certain
articles having utilitarian functions. Because the baby booties at issue were entered prior to the
addition of note 1(v), the amendment does not govern classification in this case.
15
The general Explanatory Note to Chapter 64 supports the court’s conclusion, providing
as follows: “With certain exceptions (see particularly those mentioned at the end of this General
Note) this Chapter covers, under headings 64.01 to 64.05, various types of footwear (including
overshoes) irrespective of their shape and size, the particular use for which they are designed,
their method of manufacture or the materials of which they are made.” EN to Chapter 64
(emphasis in italics added).
Court No. 93-00391 Page 53
Nor can the court find an intent on the part of the HS drafters that within chapter 95, HS
heading 95.05 is sufficiently broad in scope to encompass footwear of any kind. As the court
discussed previously, the court’s understanding of the meaning the HS drafters intended for the
term “festive, carnival or other entertainment articles” is informed by the examples given in
EN 95.05, which describe: (1) “decorations” and “decorative articles”; (2) “[a]rticles
traditionally used at Christmas festivities” such as artificial Christmas trees, nativity scenes,
Christmas crackers, Christmas stockings and imitation yule logs; (3) “fancy dress” i.e., costume,
articles such as masks and false beards and mustaches, not including apparel articles made of
textiles; (4) “[t]hrow-balls of paper or cotton-wool, paper streamers . . . cardboard trumpets” and
the like; and (5) magic tricks and practical joke items. All the examples are dissimilar to the
footwear at issue.
In summary, the court concludes that the classification of the Baby Booties determined
by Customs upon liquidation, subheading 6405.20.90, HTSUS (“Other footwear: With uppers of
textile materials: Other”), subject to duty at 12.5% ad val., was correct.
D. Defendant’s Objection to Plaintiff’s Exhibits 42, 43, 44, 45 and 46
Defendant objects to plaintiff’s revised exhibits 42, 43, 44, 45, and 46, which plaintiff
submits are pages from Russ Berrie & Co. catalogs, arguing that evidence that would be
admissible at trial has not been presented to authenticate these catalog pages, to establish that
they were published or distributed, or that the articles therein were for sale or display during the
period of importation. Def.’s Reply 6. The court interprets the real basis of defendant’s
objection to be that the catalog pages would not be admissible for the purpose of showing that
merchandise shown therein was associated with, or sold during, certain holidays or festive
occasions. In response to defendant’s argument, plaintiff submitted two affidavits from former
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Russ Berrie & Co. employees, endeavoring to authenticate the catalog pages. See Pl.’s Reply 7-8
and accompanying affidavits. Defendant responds that these affidavits violate USCIT Rule 26
because neither employee “was identified during the discovery phase of this action as persons
with information upon which Russ Berrie would rely.” Def.’s Reply 4-5. Defendant also
opposed a third affidavit from the former head of the plaintiff company, Mr. Russ Berrie himself,
because of the affiant’s death “over seven years before the complaint in this action was filed,”
which prevented defendant from cross-examining the affiant in this action. Def.’s Mot. 2 n.3.
As to an evidentiary objection grounded in the timing of holidays or festive events, and as
to all merchandise except for the Etched Images Plaque, the court considers defendant’s
objection to the five revised exhibits to be moot because the court concludes that the articles at
issue are not classifiable as festive or other entertainment articles of heading 9505, HTSUS, for
the reasons discussed previously. This is the case regardless of whether these goods can be
shown to have been advertised in a seasonal or holiday catalog or imported or sold during certain
times of the year. The court concludes that defendant’s evidentiary objection must be overruled
to the extent that it might be construed to object to introduction of the pages for a purpose other
than to show a relationship to a holiday or festive occasion. The court concludes that, in the
situation in which samples are no longer available, the catalog pages could be shown to be
admissible to demonstrate the appearance of these items. Because the catalog pages are the only
evidence that could be introduced for this purpose, the court disagrees with defendant that these
pages necessarily would be required to be excluded at trial as inadmissible. The situation the
court describes, i.e., where no samples are available and it is necessary to view the appearance of
the articles, occurred with respect to certain articles on revised exhibit 42 (Christmas Hugs and
certain Baby Booties) and revised exhibit 43 (Haunting Horrors, Bobbling Bones, Goonie Goblin
Court No. 93-00391 Page 55
Finger Puppets, the Trick ’n Treat Fun Center, and other Baby Booties). As to all of these items,
the catalog pages are part of the basis for the court’s conclusions as to classification, in particular
the conclusion that none of these goods falls within the meaning of the term “festive . . . or other
entertainment articles” as used in heading 9505 (although the Trick ’n Treat Fun Center
contained Squirt Balls that the court ruled to be classified under a different term of that heading,
a classification to which defendant agrees). Despite its objection to the exhibits, defendant
nevertheless has moved for summary judgment on the articles at issue, even though, in the
absence of samples, the catalog pages are the only evidence of the appearance of the
merchandise.
In summary, defendant’s evidentiary objections are directed to catalog pages that
associate merchandise with particular holidays or festive events, and defendant makes these
objections in support of its position that the articles at issue are not properly classified as
“festive . . . or other entertainment articles” under heading 9505, HTSUS. The court has rejected
plaintiff’s argument that any of the merchandise depicted in the catalogs (with the exception of
the Etched Images Plaque, above) fall within the meaning of that heading term. The court
concludes that there is no genuine issue of material fact as to any of these articles, and
defendant’s arguments as to the proper classification, as a general matter, have prevailed in this
action as to each of them. 16 The Etched Images Plaque appeared in an Easter catalog of Russ
16
The government’s classification has prevailed as to all articles except for one of the
Trolls (the Soft Body Troll in Candy Cane Print Pajamas), the Goonie Goblins, the Bobbling
Bones, the Christmas Hugs, and the Etched Images Plaque. As to the articles other than the
Etched Images Plaque, the court agreed with defendant that heading 9503, HTSUS (“Other
toys . . .”) is correct but determined a different subheading. The court’s disagreement with the
classifications determined by Customs affected the rate of duty only as to the Etched Images
Plaque and the Soft Body Troll in Candy Cane Print Pajamas (which was temporarily free of
duty according to subheading 9902.95.02, HTSUS).
Court No. 93-00391 Page 56
Berrie & Co., to which defendant’s evidentiary objection applies. No catalog page is required for
the court to reach the classification determination for that article, for which the sample itself is
more than sufficient to demonstrate that the article is decorative and symbolic of Easter. In light
of the sample, there is no genuine issue of material fact as to what that merchandise is.
E. Preparations for Entry of Judgment to Resolve this Action
Although plaintiff has submitted a list of articles identified as the subject of stipulation,
no stipulation on behalf of both parties has been submitted. 17 See Pl.’s Mot. 29 (listing articles to
which the parties agree to settle and citing Pl.’s Ex. 48); Def.’s Mot. 2 (stating that the parties
have agreed to settle certain claims, also citing Pl.’s Ex. 48). Therefore, the court is unable to
enter a judgment that resolves this case in the entirety, and the court finds no justification for
entering a partial judgment according to USCIT Rule 54(b). Instead, the court will order the
parties to submit a proposed judgment that directs the reliquidations necessary to effectuate the
court’s classification decisions on the articles that remained in dispute (ordering appropriate
refunds with interest as provided by law), encompasses and identifies precisely the stipulations to
which the parties have agreed, and specifies that plaintiff’s remaining claims are abandoned.
III. CONCLUSION AND ORDER
For the reasons discussed in the foregoing, upon consideration of all papers and
proceedings had herein, and upon due deliberation, it is hereby
ORDERED that Plaintiff’s Motion for Summary Judgment (Sept. 15, 2014), ECF
No. 118 be, and hereby is, granted in part and denied in part; it is further
17
Plaintiff’s Exhibit 48 is insufficient as a basis for the court to enter judgment on the
stipulated articles. While the parties inform the court that a settlement has been reached for
items identified in the exhibit, see Pl.’s Mot. 29; Def.’s Mot. 2, Exhibit 48 specifies an entry and
invoice for each item. The submissions of the parties suggest but do not confirm that the parties
contemplate that the settlement will affect the classification of the identified articles regardless of
the entries subject to this action in which the articles appear.
Court No. 93-00391 Page 57
ORDERED that Defendant’s Cross-Motion for Summary Judgment (Oct. 20, 2014),
ECF No. 122 be, and hereby is, granted in part and denied in part; it is further
DETERMINED that the Soft Body Trolls in Candy Cane Print Pajamas are classified in
subheading 9503.41.10, HTSUS (“Other toys . . . : Toys representing animals or non-human
creatures . . . : Stuffed toys”), temporarily free of duty according to subheading 9902.95.02,
HTSUS; it is further
DETERMINED that the other Trolls remaining at issue in this case are classified in
subheading 9503.49.00, HTSUS (“Other toys . . . : Toys representing animals or non-human
creatures . . . : Other”), subject to duty at 6.8% ad val.; it is further
DETERMINED that the Goonie Goblins are classified in subheading 9503.49.00,
HTSUS (“Other toys . . . : Toys representing animals or non-human creatures . . . : Other”),
subject to duty at 6.8% ad val.; it is further
DETERMINED that the Haunting Horrors are classified in subheading 9503.49.00,
HTSUS (“Other toys . . . : Toys representing animals or non-human creatures . . . : Other”),
subject to duty at 6.8% ad val.; it is further
DETERMINED that the Bobbling Bones are classified in subheading 9503.90.70,
HTSUS (“Other toys . . . : Other: Other), subject to duty at 6.8% ad val.; it is further
DETERMINED that the multiplying viewers, the puzzle watches, and the stencil sets,
included in the Trick ‘n Treat Fun Center, are classified in subheading 9503.90.60, HTSUS
(“Other toys . . . : Other: Other toys (except models), not having a spring mechanism”), subject
to duty at 6.8% ad val.; it is further
DETERMINED that the squirt balls included in the Trick ‘n Treat Fun Center are
classified in subheading 9505.90.20, HTSUS (“Festive . . . or other entertainment articles,
including . . . practical joke articles . . . : Other: Magic tricks and practical joke articles . . .”),
subject to duty at 5.8% ad val.; it is further
DETERMINED that the paint palette included in the Trick ‘n Treat Fun Center is
classified in subheading 3213.10.00, HTSUS (“Artists’, students’ or signboard painters’
colors, . . . amusement colors and the like, in tablets . . . or in similar forms or packings: Colors
in sets”), subject to duty at 6.5% ad val. on the entire set; it is further
DETERMINED that the Christmas Hugs are classified in subheading 9503.49.00,
HTSUS (“Other toys . . . : Toys representing animals or non-human creatures . . . : Other”),
subject to duty at 6.8% ad val.; it is further
DETERMINED that the Candleholders are classified in subheading 9405.50.40, HTSUS
(“Lamps and lighting fittings . . . not elsewhere specified or included . . . : Non-electrical lamps
and lighting fittings: Other: Other”), subject to duty at 7.6% ad val.; it is further
Court No. 93-00391 Page 58
DETERMINED that the Etched Images Plaque is classified in subheading 9505.90.60,
HTSUS (“Festive . . . or other entertainment articles . . . : Other: Other”), subject to duty at 3.1%
ad val.; it is further
DETERMINED that the Baby Booties are classified in subheading 6405.20.90, HTSUS
(“Other footwear: With uppers of textile materials: Other”), subject to duty at 12.5% ad val.; and
it is further
ORDERED that the parties shall consult and file with the court, no later than 60 days
from the date of this Opinion and Order, a proposed judgment in accordance with this Opinion
and Order that (1) directs the reliquidations necessary to effectuate the court’s classification
decisions on the articles that remained in dispute and orders the appropriate refunds, with interest
as provided by law; (2) encompasses the stipulations to which the parties have agreed; and
(3) specifies that plaintiff’s remaining claims are abandoned.
/s/ Timothy C. Stanceu
Timothy C. Stanceu, Chief Judge
Dated: August 30, 2018
New York, New York