Slip Op. 23-139 

UNITED STATES COURT OF INTERNATIONAL TRADE

SECOND NATURE DESIGNS LTD., 

Plaintiff, 

v. 

UNITED STATES, 

Defendant. 

Before: Gary S. Katzmann, Judge 

Court No. 17-00271 

OPINION 

[ Plaintiff’s Motion for Summary Judgment is granted in part and denied in part. Defendant’s 

Cross-Motion for Summary Judgment is granted in part and denied in part. ] 

 Dated: September 21, 2023 

John M. Peterson, and Patrick B. Klein, Neville Peterson LLP, of New York, N.Y., argued for 

Plaintiff Second Nature Designs Ltd. 

Brandon A. Kennedy, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. 

Department of Justice, of New York, N.Y., argued for Defendant United States. With him on the 

briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. 

McCarthy, Director, Justin R. Miller, Attorney-In-Charge. Of counsel on the brief was Alexandra 

Khrebtukova, Office of the Assistant Chief Counsel, International Trade Litigation, U.S. Customs 

and Border Protection of New York, N.Y. 

Katzmann, Judge: Before the court are cross-motions for summary judgment. Plaintiff 

Second Nature Designs Ltd. (“Second Nature”) contests the denial of protests challenging the 

United States Customs and Border Protection’s (“Customs”) classification decision of imports 

containing various decorative items of plant parts (“subject merchandise”). Customs classified the 

subject merchandise under subheading 0604.90.60 of the Harmonized Tariff Schedule of the 
Court No. 17-00271 Page 2 

United States (“HTSUS”),1 carrying a duty rate of 7 percent ad valorem. Second Nature argues 

that the proper classification is subheading 0604.90.30, HTSUS, a duty-free provision. Defendant 

the United States (“the Government”) contends that in addition to Customs’s original classification 

for certain categories of the subject merchandise, other headings of HTSUS provide the correct 

classification for other categories. 

For the reasons established herein, the court agrees with Second Nature’s preferred 

classifications for certain categories of the subject merchandise involving dried items and curled 

items. For certain other categories, the court agrees with the Government’s preferred classification 

regarding certain styles of merchandise constituting artificial flowers or fruit. The court further 

finds that factual issues persist as to the remainder of the categories, precluding the grant of 

summary judgment. Accordingly, the court grants in part and denies in part both Plaintiff’s Motion 

for Summary Judgment and Defendant’s Cross-Motion for Summary Judgment. 

BACKGROUND 

The court first sets out the overarching legal, factual, and procedural background necessary 

to contextualize the various classification claims brought forth by Second Nature and the 

Government. The court will further develop such backgrounds as relevant and necessary in the 

forthcoming discussion. 

I. Legal Background 

The HTSUS governs the classification of merchandise imported into the United States. See 

Wilton Indus., Inc. v. United States, 741 F.3d 1263, 1266 (Fed. Cir. 2013). The HTSUS sets out 

the tariff rates and statistical categories using a series of nested chapters, headings, and 

1

 References to “chapter,” “heading,” or “subheading” herein refer to the relevant parts of the 

HTSUS. 
Court No. 17-00271 Page 3 

subheadings. In general, the HTSUS’s primary headings describe broad categories of 

merchandise, while its subheadings provide a particularized division of the goods within each 

category. The HTSUS “shall be considered to be statutory provisions of law for all purposes.” 19 

U.S.C. § 3004(c)(1). Proper classification is governed by the General Rules of Interpretation 

(“GRIs”) of the HTSUS as well as the Additional U.S. Rules of Interpretation. See Roche 

Vitamins, Inc. v. United States, 772 F.3d 728, 730 (Fed. Cir. 2014) (citing Orlando Food Corp. v. 

United States, 140 F.3d 1437, 1439 (Fed. Cir. 1998)). 

Judicial review of classification decisions involves two steps. First, the court determines 

the proper meaning of the terms used in the HTSUS provision, which is a question of law. See 

Link Snacks, Inc. v. United States, 742 F.3d 962, 965 (Fed. Cir. 2014) (citing Warner-Lambert 

Co. v. United States, 407 F.3d 1207, 1209 (Fed. Cir. 2005)). Second, the court determines whether 

the subject merchandise falls within the description of those terms, which is a question of fact. See 

id. (citing Orlando Food, 140 F.3d at 1439). The key factual issue is the nature of the merchandise. 

See Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1365 (Fed. Cir. 1998) (“[S]ummary 

judgment is appropriate when there is no genuine dispute as to the underlying factual issue of 

exactly what the merchandise is.”). 

The court applies the GRIs in numerical order beginning with GRI 1; the court will reach 

subsequent GRIs only if analysis under the preceding GRI does not yield proper classification of 

the subject merchandise. See Link Snacks, 742 F.3d at 965; see also Carl Zeiss, Inc. v. United 

States, 195 F.3d 1375, 1379 (Fed. Cir. 1999). “The HTSUS is designed so that most classification 

questions can be answered by GRI 1 . . . .” Telebrands Corp. v. United States, 36 CIT 1231, 1235, 

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

first construes the language of the heading, and any section or chapter notes in question.” Orlando 
Court No. 17-00271 Page 4 

Food, 140 F.3d at 1440. Once imported merchandise is determined to be classifiable under a 

particular heading, a court must then look to the subheadings to find the correct classification of 

the merchandise in question. Id. Only after “exhausting the terms of the subheadings and related 

[chapter] notes would one turn to GRI 3 to choose between two or more potentially applicable 

subheadings.” Telebrands, 36 CIT at 1236, 865 F. Supp. 2d at 1281. 

GRI 2 provides that the classification of “goods consisting of more than one material or 

substance” shall be determined according to the principles of GRI 3. GRI 2, HTSUS. Under GRI 

3(a), goods are classified into “[t]he heading which provides the most specific description”; but if 

multiple headings “each refer to part only of the materials or substances contained in [a mixed 

good],” the headings are regarded as equally specific and the court moves to GRI 3(b) by 

classifying the good according to the material that gives the good its “essential character.” GRI 3, 

HTSUS. If no essential character can be found, then the good is classified pursuant to GRI 3(c) 

“under the heading which occurs last in numerical order among those which equally merit 

consideration.” Id. After using the GRIs to determine the correct heading, the court determines 

the correct HTSUS subheading using GRI 6, which directs that GRIs 1 through 5 be reapplied at 

the subheading level. GRI 6, HTSUS. “Only after determining that a product is classifiable under 

the heading should the court look to the subheadings to find the correct classification for the 

merchandise.” Orlando Food, 140 F.3d at 1440. 

HTSUS terms are “construed according to their common and commercial meanings, which 

are presumed to be the same.” Carl Zeiss, 195 F.3d at 1379 (citing Simod Am. Corp. v. United 

States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)). The court defines HTSUS tariff terms by relying 

on its own understanding of the terms and “consult[ing] lexicographic and scientific authorities, 

dictionaries, and other reliable information sources.” Id. at 1379. For additional direction on 
Court No. 17-00271 Page 5 

construing HTSUS provisions, the court may also consult the Harmonized Commodity Description 

and Coding System’s Explanatory Notes (“Explanatory Notes” or “ENs”). See StoreWALL, LLC 

v. United States, 644 F.3d 1358, 1363 (Fed. Cir. 2011). Although the “Explanatory Notes are not 

legally binding,” they “may be consulted for guidance and are generally indicative of the proper 

interpretation of a tariff provision.” Roche Vitamins, 772 F.3d at 731. 

II. Procedural Background 

From August 26, 2015, to November 13, 2015, Second Nature filed nine entries regarding 

the subject merchandise with the port of Detroit, Michigan. Joint Rule 56.3 Stmt. of Material Facts 

as to Which There Are No Genuine Issues to Be Tried ¶ 2, Jan. 28, 2022, ECF No. 91-1 (“Joint 

SOF”). From July 9, 2015, to December 26, 2016, Second Nature filed 140 entries of the subject 

merchandise with the port of Buffalo, New York. Id. Customs classified the merchandise under 

subheading 0604.90.60, HTSUS, which covers: “Foliage, branches and other parts of plants, 

without flowers or flower buds, and grasses, mosses and lichens, being goods of a kind suitable 

for bouquets or for ornamental purposes, fresh, dried, dyed, bleached, impregnated or otherwise 

prepared: Other: Other.” Joint SOF ¶ 4. 

Second Nature timely filed eleven protests between February 23, 2016, and June 29, 2017, 

with the Port Directors of Customs at the Port of Buffalo, New York, and the Port of Detroit, 

Michigan. Compl. ¶ 11, Dec. 21, 2017, ECF No. 7; Am. Answer ¶ 11, Aug. 24, 2022, ECF No. 

114. These protests contested the classification, rate, and amount of duty assessed in liquidation, 

pursuant to 19 U.S.C. §1514(a)(2).2 Compl. ¶ 11; Am. Answer ¶ 11. Specifically, Second Nature 

2

 Goods imported into the customs territory of the United States must first be “entered,” or in other 

words declared, to Customs. Customs is then responsible for determining the final classification 

and valuation of the goods through a process called “liquidation of the entry.” 19 U.S.C. § 1500 

sets out the procedures for the liquidation process, which includes final appraisal, a final 
Court No. 17-00271 Page 6 

argued that the entries should have instead been classified under subheading 0604.90.30, HTSUS, 

which covers: “Foliage, branches and other parts of plants, without flowers or flower buds, and 

grasses, mosses and lichens, being goods of a kind suitable for bouquets or for ornamental 

purposes, fresh, dried, dyed, bleached, impregnated or otherwise prepared: Other: dried or 

bleached.” Compl. ¶ 11; Am. Answer ¶ 11. 

On May 8, 2017, Customs issued Headquarters Ruling Letter H279097, again confirming 

the 0604.90.60 classification for the further worked dried or bleached botanicals. Joint Mot. at 5; 

Compl. ¶ 12; Am. Answer ¶ 12. As support, Customs cited rulings where it had considered 

numerous other botanical products and found that dried natural goods which were decorated 

beyond bleaching or drying were classified under 0604.90.60. Id. Between May 19, 2017, and 

October 30, 2017, Customs denied certain protests underlying this action. Compl. ¶ 13; Am. 

Answer ¶ 13. 

Following the denial of its protests, Plaintiff timely filed suit on November 17, 2017, 

contesting Customs’s classification and alleging that the goods are instead properly classified 

under subheading 0604.90.30, HTSUS. See Summons, Nov. 17, 2017, ECF No. 1; Compl. at 4. 

The Government filed its Answer on April 12, 2018, defending Customs’s classification under 

subheading 0604.90.60, HTSUS. See Answer, Apr. 12, 2018, ECF No. 12. 

The parties entered the discovery phase of the case. Joint SOF at 3. Discovery was slated 

to conclude on November 2, 2018. Scheduling Order, May 25, 2018, ECF No. 17. However, 

classification decision, and liquidation, i.e., final ascertainment of duties. After liquidation of the 

entry occurs, an importer may seek administrative review of a classification decision by protesting 

the decision to Customs, which results in an internal review of the decision by a higher level of 

authority within Customs. If the importer is dissatisfied with the decision resulting from its protest, 

it may then, as here, seek judicial review. See Amcor Flexibles Kreuzlingen AG v. United States, 

46 CIT __, __, 560 F. Supp. 3d 1326, 1329–30 (2022). 
Court No. 17-00271 Page 7 

following numerous motions for extension by the parties, discovery was ultimately extended until 

February 14, 2022—largely to accommodate the parties’ joint efforts to establish the scope of the 

litigation and prepare an agreed-upon statement of facts. See Order, Oct. 27, 2021, ECF No. 80; 

Joint Status Report at 1–3, Dec. 1, 2021, ECF No. 84 (discussing efforts to produce a joint 

statement of facts pursuant to Rule 56.3 of the U.S. Court of International Trade (“CIT”)). 

On January 28, 2022, shortly before the close of discovery, the parties jointly moved for 

an order implementing certain case management procedures, staying discovery, and dividing the 

proceedings into two phases. See Joint Mot. for Entry of Order Providing Case Management Proc. 

& Dividing Remainder of Litigation into Two Phases, Jan. 28, 2022, ECF No. 91 (“Joint Mot.” or 

“Joint Motion”). In the Joint SOF that was attached to the Joint Motion, the parties divided the 

merchandise into eight categories, from Category One to Category Eight. See Joint SOF ¶¶ 6–41. 

The parties further stipulated that the parties sought only the court’s determination as to the 

“appropriate methodology” for applying the GRIs in Category Seven, and that the parties would 

further resolve the proper classification through “briefing or by trial” as necessary. Joint Mot. at 

2. The Parties further indicated that the Joint SOF would serve as the parties’ joint statement of 

facts for the purposes of USCIT Rule 56.3. See Joint SOF at 1. The court granted the Joint Motion 

and partitioned the litigation into two phases, and the parties proceeded with the following motions 

for summary judgment as part of the first phase. See Scheduling Order, Feb. 2, 2022, ECF No. 93 

(“Feb. 2022 Scheduling Order”). 

On the same day the Joint Motion was filed, the Government filed a motion for leave to 

amend its Answer and assert a counterclaim that the subject merchandise is, in part, correctly 

classified under HTSUS 6702.90.65. See Mot. to File an Am. Ans. & Suppl. Pleading Asserting 

a Counterclaim at 8–9, Jan. 28, 2022, ECF No. 92 (“Def.’s Am.”). Plaintiff responded in 
Court No. 17-00271 Page 8 

opposition on February 18, 2022, see Pl.’s Resp. in Opp. to Def.’s Mot. to Am. at 2, Feb. 18, 2022, 

ECF No. 95 (“Pl.’s Am. Resp.”), and the Government replied on March 22, 2022, see Def.’s Reply 

in Supp. of its Mot. to File an Am. Ans. & Suppl. Pleading Asserting a Counterclaim, Mar. 22, 

2022, ECF No. 99 (“Def.’s Am. Reply”). On July 25, 2022, the court granted the Government’s 

motion for leave to amend and designated the proposed counterclaim as a defense. See Second 

Nature Designs Ltd. v. United States, 46 CIT __, __, 586 F. Supp. 3d 1334, 1342 (2022). 

After the court’s order granting the motion, the Government filed its Amended Answer on 

August 24, 2022. See Am. Answer. In the Amended Answer, in addition to the alternative 

classification under HTSUS 6702.90.65 that the Government originally sought to add in its 

amendment, the Government included three more alternative classifications for certain items, 

variously under HTSUS subheadings 4602.12.45, 4602.19.45, and 4602.19.80. See id. ¶¶ 14, 17, 

20, 23. The additional alternative classifications under heading 4602 were not mentioned in the 

Government’s motion for leave to file an amended answer, nor in the Government’s subsequent 

briefs for its motion to amend. See Def.’s Mot. Am. Answer & Supp. Pleading, Jan. 28, 2022, 

ECF No. 92-1; Def.’s Am. Reply. 

Before the filing of the Amended Answer by the Government, on June 13, 2022, Second 

Nature filed a Motion for Summary Judgment to classify all eight categories of the subject 

merchandise under subheading 0604.90.30, HTSUS. See Pl.’s Mot. for Summ. J. at 1, June 13, 

2022, ECF No. 104 (“Pl.’s Mot.”); Pl.’s Mot. for Summ. J. Mem. of Points & Auth. at 1, June 13, 

2022, ECF No. 104-2 (“Pl.’s Br.”). The Government filed its Cross-Motion for Partial Summary 

Judgment on September 30, 2022. See Def.’s Resp. & Cross-Mot. for Partial Summ. J. Mem. of 

Law, Sept. 30, 2022, ECF No. 115 (“Def.’s Br.”). Thereafter, Second Nature moved out of time 

to file a reply brief, and the court granted the motion. See Mot. Out of Time Leave to File Reply 
Court No. 17-00271 Page 9 

Br., Dec. 14, 2022; ECF No. 118; Order, Dec. 15, 2022, ECF No. 119; Pl.’s Reply Br. in Supp. of 

its Mot. for Summ. J., Dec. 15, 2022, ECF No. 120 (“Pl.’s Reply”). On January 10, 2023, the 

parties jointly submitted fifteen physical exhibits as representative samples. See Joint Cert. of 

Filing & Serv. of Physical Exs., Jan. 10, 2023, ECF No. 121-1 (“Joint Cert. Exs.”). The 

Government filed its reply brief. See Def.’s Reply Br. in Supp. of its Cross-Mot. for Partial Summ. 

J., Mar. 15, 2023, ECF No. 129 (“Def.’s Reply”). 

On June 8, 2023, the court issued questions to the parties in advance of oral argument. See 

Letter, June 8, 2023, ECF No. 133. Second Nature and the Government filed written responses. 

See Pl.’s Resp. to Ct.’s Qs. For Oral Arg., June 16, 2023, ECF No. 135 (“Pl.’s OAQ Resp.”); Def.’s 

Answers to Ct.’s Qs. for Oral Arg., June 16, 2023, ECF No. 134 (“Def.’s OAQ Resp.”). Oral 

argument took place on Tuesday, June 20, 2023. See Oral Arg., June 20, 2023, ECF No. 136. The 

court invited the parties to file submissions after oral argument, and Second Nature and the 

Government made such submissions. See Pl.’s Post-Arg. Subm., June 27, 2023, ECF No. 137 

(“Pl.’s Post-Arg. Br.”); Def.’s Post-Arg. Subm., June 27, 2023, ECF No. 138. The court later 

issued supplemental questions to the parties, see Letter, June 30, 2023, ECF No. 139, and Second 

Nature and the Government timely responded. See Pl.’s Resp. to Ct.’s June 30, 2023 Letter, July 

12, 2023, ECF No. 140 (“Pl.’s Supp. Q. Resp.”); Def.’s Answers to Ct.’s Supp. Qs., July 12, 2023, 

ECF No. 141 (“Def.’s Supp. Q. Resp.”). 

III. Factual Background 

The parties have divided the subject merchandise into eight categories. Unless otherwise 

noted, the following facts are undisputed in the parties’ joint statement and subsequent briefing: 

In Category One, the subject product styles consist of foliage, branches, or other parts of 

plants, without flower buds, or grasses, mosses, or lichens, that have glitter or another coating 
Court No. 17-00271 Page 10 

applied to their exterior, and/or have been dyed. Joint SOF ¶ 6. The parties presented five styles 

as representative of the merchandise within Category One: (1) Exhibit No. 1, “Item No. 00055, 

Pinecones—Large Champagne Glitter—Consumer Pack”; (2) Exhibit No. 2, “Item No. 03379, 

Lotus Pods White Wash—Bulk Pack”; (3) Exhibit No. 3, “Item No. 15731, Palm Reed 

Mahogany—Value Pack”; (4) Exhibit No. 4, “Item 65536, Banana Stem White Wash, Value 

Pack”; and (5) Exhibit No. 5, “Item No. 64649, Pinecones Large Snow Item.” Id. ¶¶ 7–11; Joint 

Cert. Exs. at 1. 

Category Two comprises two product styles. Joint SOF ¶ 12. The parties submit that the 

styles of merchandise in Category Two are appropriately classified under HTSUS 0604.90.30. 

Def.’s Br. at 6, 24; Pl.’s Reply at 11. 

In Category Three, the subject product styles consist of thin flat strips of a plant of the 

Calamus genus that are dried, dyed, and/or glittered, and shaped directly into decorative curls. 

Joint SOF ¶ 15. Exhibit No. 6, “Item No. 01694, Cane Spring Red Glitter—Bulk Pack” is the sole 

representative style for this category. Id. ¶ 16; Joint Cert. Exs. at 1. 

In Category Four, the subject product styles consist of thin flat strips of colored willow 

(genus Salix) plaited into the shape of a triangle and impaled on a stick. Joint SOF ¶ 17. “Item 

No. 03322, Christmas Trees Gold Glitter—Consumer Pack” represents the characteristics of the 

merchandise within this category. Id. ¶ 18; Joint Cert. Exs. at 1. Despite designating the item as 

Exhibit No. 7, the parties did not submit a physical exhibit for Category Four because the 

manufacturer has discontinued the representative product. Joint Cert. Exs. at 1. 

In Category Five, the subject product styles consist of thin flat strips of vegetable materials, 

other than willow or wood, shaped directly into balls or other shapes, and some of which are also 

impaled on sticks. Joint SOF ¶ 19. Exhibit No. 8, “Item No. 00210, Kambu Balls 8cm—Stemmed 
Court No. 17-00271 Page 11 

Red Glitter—Consumer Pack” represents the characteristics of the merchandise within this 

category. Id. ¶ 20; Joint Cert. Exs. at 1. 

In Category Six, the subject product styles consist of articles that are handmade, using 

metal wire, tape, or glue to affix various dried plant materials into shapes resembling flowers or 

fruit. Joint SOF ¶ 21. Three styles represent the merchandise covered by Category Six: (1) Exhibit 

No. 9, “Item No. 16236, Deco Flowers Yellow—Value Pack”; (2) Exhibit No. 10, “Item No. 3229, 

Pumpkins—Stemmed Orange—Consumer Pack”; and (3) Exhibit No. 11, “Item No. 00696, Sola 

Berries Red Glitter—Consumer Pack.” Id. ¶ 22; Joint Cert. Exs. at 1. 

In Category Seven, the subject product styles all contain more than one type of item. Joint 

SOF ¶ 21. The parties have agreed that the following six styles may serve as representative styles 

for the merchandise covered by Category Seven: (1) Exhibit No. 12, “Item No. 00182, Deck The 

Halls Champagne Glitter—Bouquet”; (2) Exhibit No. 13, “Item No. 57170, Trick or Treat— 

Bouquet”; (3) Exhibit No. 14, “Item No. 40180, Pumpkin/Root Ball Mix Orange—Jumbo Bag”; 

(4) Exhibit No. 15, “Item No. 03347, Panchu Bouquet”; and (5) Exhibit No. 16 “Item No. 50970, 

Fall Harvest Bunch Bouquet.” Id.; Joint Cert. Exs. at 2. The parties indicated that “Item No. 

51670, Root Ball Bouquet Item” was inadvertently included as a representative style, and further 

that “they intended to omit it from the Joint SOF.” Joint Cert. Exs. at 2; Joint SOF ¶ 21. 

Category Eight contains 123 subject product styles, and the parties agree on the tariff 

classification of the imported merchandise under HTSUS subheadings 1401.10.00, 4602.19.60, 

0604.90.10, 0604.90.30, and 3926.40.00. Joint SOF ¶ 34. 

JURISDICTION AND STANDARD OF REVIEW 

The court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1581(a). 

The court may grant summary judgment when the movant shows that “there is no genuine issue 
Court No. 17-00271 Page 12 

as to any material fact,” and is thus “entitled to judgment as a matter of law.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 247 (1986); see also USCIT R. 56(a). “[S]ummary judgment will not 

lie . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 

Anderson, 477 U.S. at 248. In other words, the inquiry is “whether the evidence presents a 

sufficient disagreement to require submission to a jury or whether it is so one-sided that one party 

must prevail as a matter of law.” Id. at 251–52 (emphasis added). The movant bears the burden 

of demonstrating that there exists no genuine issue of material fact that would warrant a trial. See, 

e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 

144, 157 (1970). 

“With respect to cross-motions for summary judgment, each motion is evaluated on its own 

merits and reasonable inferences are resolved against the party whose motion is being considered.” 

Marriott Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968–69 (Fed. Cir. 2009) (citing Mingus 

Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)). “The fact that both 

parties have moved for summary judgment does not mean that the court must grant judgment as a 

matter of law for one side or the other . . . .” Mingus, 812 F.2d at 1391. “Rather, the court must 

evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable 

inferences against the party whose motion is under consideration.” Id. “To the extent there is a 

genuine issue of material fact, both motions must be denied.” Marriott Int’l, 586 F.3d at 969. 

DISCUSSION 

Before the court, Second Nature asserts that (1) pursuant to GRI 1, the subject merchandise 

in Categories One, Three, Four, Five, Six, and Seven are properly classified as “dried or bleached” 

botanicals under the eo nomine provision3 of HTSUS 0604.90.30; and (2) Note 2, Chapter 6 of the 

3

 See infra pp. 13–14.
Court No. 17-00271 Page 13 

HTSUS governs classification for Category Seven. The Government counters that (1) HTSUS 

0604.90.30 is not an eo nomine provision, and that the basket provision of HTSUS 0604.90.60 is 

the correct classification for Category One; (2) Category Three is appropriately classified under 

HTSUS 4602.12.45 as other articles of rattan; (3) Category Four is appropriately classified under 

HTSUS 4602.19.45 as other articles of willow or wood; (4) Category Five is appropriately 

classified under HTSUS 4602.19.80 as other articles; (5) Category Six is appropriately classified 

under HTSUS 6702.90.65 as artificial flowers or fruit; and (6) Category Seven consists of 

composite items that require GRI 3 to be read together with Note 2, Chapter 6 of the HTSUS. The 

court will address each argument in turn, focusing on specific categories at a time. 

I. HTSUS 0604.90.30 Is an Eo Nomine Provision as Between Subheadings 

Within Heading 0604 

A. Issue-Specific Legal Background 

1. Eo Nomine Provisions 

In examining the subheadings, the court must first “assess whether the subject Headings 

constitute eo nomine or use provisions because different rules and analysis will apply depending 

upon the heading type.” Schlumberger Tech. Corp. v. United States, 845 F.3d 1158, 1164 (Fed. 

Cir. 2017). An eo nomine provision “describes an article by a specific name,” whereas a use 

provision describes articles according to their principal or actual use. Id. An HTSUS provision is 

to be treated as eo nomine “when the interpretation [is] centered on the terms describing an article 

by a specific name.” Schlumberger, 845 F.3d at 1164 (citing Sigma-Tau HealthScience, Inc. v. 

United States, 838 F.3d 1272, 1278 (Fed. Cir. 2016)). In other words, when the “operative 

question” is whether the merchandise in question qualifies as an item that is “expressly named and 

covered by [the] HTSUS heading,” such HTSUS provisions can be treated as containing an eo 

nomine designation. Sigma-Tau, 838 F.3d at 1278. Subheadings, as well as headings, can 
Court No. 17-00271 Page 14 

constitute eo nomine provisions. CamelBak Prods., LLC v. United States, 649 F.3d 1361, 1364 

(Fed. Cir. 2011). 

“An eo nomine designation, with no terms of limitation, will ordinarily include all forms 

of the named article.” Irwin Indus. Tool Co. v. United States, 920 F.3d 1356, 1360 (Fed. Cir. 

2019) (quoting, ultimately, Hayes-Sammons Chem. Co. v. United States, 55 C.C.P.A. 69, 75 

(1968)). “Stated otherwise, all forms, grades and qualities of the named article are embraced by 

such a designation.” Hayes-Sammons, 55 C.C.P.A. at 75 (citation omitted and emphasis in 

original).4

Thus, once a provision is found to be eo nomine, “an article which has been improved or 

amplified but whose essential characteristic is preserved or only incidentally altered is not 

excluded from an unlimited eo nomine statutory designation.” Casio, Inc. v. United States, 73 

F.3d 1095, 1098 (Fed. Cir. 1996). The criterion is whether the item “possess[es] features 

substantially in excess of those within the common meaning of the term.” Id. (emphasis in 

original) (citation omitted). Factors such as design, use, or function may serve as “analytical tools 

or factors” in making this determination. CamelBak, 649 F.3d at 1367. 

4

 The U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) adopted the case law of the 

Court of Customs and Patent Appeals (“CCPA”) as binding precedent in its first ever en banc 

opinion, South Corp. v. United States, 690 F.2d 1368, 1369 (Fed. Cir. 1982) (en banc). See 

Deckers Corp. v. United States, 752 F.3d 949, 964 (Fed. Cir. 2014). “[T]he Court of Customs and 

Patent Appeals always sat [en] banc” and, therefore, the most recent decision of the CCPA controls 

as precedent over prior inconsistent decisions. Id. (quoting Celestaire, Inc. v. United States, 120 

F.3d 1232, 1235 (Fed. Cir. 1997)). For classification issues, “the construction of a Customs 

classification provision by a panel of [the Federal Circuit] is binding upon both the Court of 

International Trade and subsequent panels of [the Federal Circuit] in later protest cases involving 

the same subheading or heading” “unless and until overruled by an intervening Supreme Court or 

en banc decision.” Id. at 964, 966 (citing Robert Bosch, LLC v. Pylon Mfg. Corp., 719 F.3d 1305, 

1316 (Fed. Cir. 2013) (en banc)). 
Court No. 17-00271 Page 15 

2. Whether Reading Subheading Terms Together with the Terms of 

Superior Headings Can Constitute an Eo Nomine Designation 

under the HTSUS 

The key issue raised by Second Nature’s argument is whether a subheading constituting 

only of adjectival terms, such as subheading 0604.90.30 (“[d]ried or bleached”), can be interpreted 

as an eo nomine provision when read together with the words of the superior heading, for the 

purpose of comparison with another eight-digit level subheading. Second Nature argues that 

“while subheadings 0604.90.30 and 0604.90.60, HTSUS are not, in isolation, considered ‘eo 

nomine’ provisions, when read in conjunction with the superior headings and subheadings, they 

do in fact describe a type of merchandise eo nomine[.]” Pl.’s OAQ Resp at 1. Thus, according to 

Second Nature, “[g]oods of subheading 0604.90 are differentiated according to whether they were 

subjected to certain forms of processing (drying or bleaching).” Id. 

To the contrary, the Government contends that subheading 0604.90.30 is not an eo nomine 

designation because the terms “dried or bleached” are “not a specific or well-known name for any 

commodity, but rather are a description of a particular way of processing or preparing the articles 

in question.” Def.’s Br. at 17. In essence, the Government’s argument is that because the 

subheading does not name anything, i.e., contain a noun describing a commercial name for a 

product or merchandise, the provision is not an eo nomine designation. Id.; Def.’s Reply at 6–7; 

see also Def.’s OAQ Resp. at 3. 

Although the parties have not directly supported their respective arguments with cases on 

point, a close reading of two cases cited in the briefs only for general propositions offers 

comparative context. See Pl’s Br. at 10 (citing United States v. Bruckmann, 65 C.C.P.A. 90, 582 

F.2d 622 (1978)); Def.’s Br. at 9 (citing Link Snacks, Inc. v. United States, 742 F.3d 962, 965–66 

(Fed. Cir. 2014)). The first case, Bruckmann, was decided by the former CCPA and the second 
Court No. 17-00271 Page 16 

case, Link Snacks, was decided by the Federal Circuit. First, the holding in Bruckmann is that 

there is a general interpretive rule that a reference to “parts” in a superior heading will not travel 

down to a subheading if that subheading is an eo nomine provision. See 65 C.C.P.A. at 95, 582 

F.2d at 626 (“[T]he subheading argued by Bruckmann to be proper . . . is [n]ot adjectival in form 

. . . . That item is an [e]o nomine provision and, by the general rule, does not include parts.”). 

In Link Snacks, the Federal Circuit held that the subheading in HTSUS 1602.50.09,5

containing only the adjectival phrase “[c]ured or pickled,” is an eo nomine designation. 742 F.3d 

at 966 (“The subject beef jerky is described, eo nomine, by HTSUS 1602.50.09 as cured beef 

products.”).6 The Federal Circuit further held that the eo nomine designation within subheading 

1602.50.09 “does not draw distinctions based on whether or not the meat is dehydrated; the only 

inquiry is whether or not the meat has been cured.” Link Snacks, 742 F.3d at 966. Therefore, 

“[a]lthough there is a respectable argument that the further step of dehydration affects the beef 

5

 The relevant provisions of the HTSUS were as follows: 

1602 Other prepared or preserved meat, meat offal or blood: 

. . . . . 

1602.50 Of bovine animals 

1602.50.05 Offal 

 Other: 

 Not containing cereals or vegetables 

1602.50.09 Cured or pickled 

 Other: 

 In airtight containers: 

1602.50.10 Corned beef 

1602.50.20 Other: 

HTSUS (2006); see also Link Snacks, 742 F.3d at 966. 

6

 The Link Snacks court therefore affirmed the CIT’s holding that “the ‘[c]ured’ subheading, 

1602.50.09, is an eo nomine provision that ‘include[s] all forms of the named article,’ even 

improved forms.” Link Snacks, Inc. v. United States, 37 CIT 373, 378, 901 F. Supp. 2d 1369, 

1375 (2013) (alterations in original) (citation and internal quotation marks omitted), aff’d, 742 

F.3d 962. 
Court No. 17-00271 Page 17 

jerky product beyond the curing process, it does not overcome the simple and straightforward 

classification of the subject merchandise as cured beef products.” Id. Thus, even a subheading 

such as 1602.50.09 containing only the adjectival terms “[c]ured or pickled” can constitute an eo 

nomine provision. Id. 

B. Subheading 0604.90.30 Is an Eo Nomine Provision for the Purposes of 

This Case 

The court now turns to the HTSUS provision in question. Under the applicable HTSUS at 

the time of importation, heading 0604 and subheadings 0604.90.30 and 0604.90.60 were as 

follows: 

0604 Foliage, branches and other parts of plants, without flowers or flower buds, 

and grasses, mosses and lichens, being goods of a kind suitable for bouquets or for 

ornamental purposes, fresh, dried, dyed, bleached, impregnated or otherwise 

prepared: 

0604.20.00 Fresh 

. . . . . 

0604.90 Other: 

0604.90.10 Mosses and lichens 

 Other: 

0604.90.30 Dried or bleached 

0604.90.60 Other 

HTSUS (2015) (emphasis added). As of 2023, no significant changes have been implemented to 

the relevant provisions. See HTSUS (2023). 

While the court takes a “heading-specific approach,” Victoria’s Secret Direct, LLC v. 

United States, 769 F.3d 1102, 1110 (Fed. Cir. 2014), the opinions of the Federal Circuit and 

predecessor courts may provide several “analytical tools or factors” in interpreting other headings 

and subheadings under the HTSUS, see CamelBak, 649 F.3d at 1367 (examining, inter alia, case 

law pertaining to audio synthesizers in classification case of backpacks and other items). 

Examining the analytical tools employed by the two opinions in Bruckmann and Link Snacks, the 

court determines that HTSUS subheading 0604.90.30 is an eo nomine provision. Unlike the 
Court No. 17-00271 Page 18 

Bruckmann opinion, which interpreted the former Tariff Schedules of the United States, 65 

C.C.P.A. at 94–95, 582 F.2d at 626, the case at bar, like Link Snacks, involves interpretation of a 

subheading within the HTSUS. Also unlike Bruckmann, which involved the application of a 

specific rule of interpretation regarding a “parts” designation, this case involves general descriptors 

and raises the issue of whether such descriptors, names, or nouns may travel down, as was the case 

in Link Snacks. Thus the court follows the Federal Circuit’s approach in Link Snacks.7

As in the case of Link Snacks, a subheading consisting of only “descriptive terms” is to be 

read as an eo nomine provision when the operative question focuses on the terms describing an 

article. See 742 F.3d at 966. Just as a tariff subheading containing only the words “[c]ured or 

pickled” constitutes an eo nomine provision because the only relevant inquiry under that 

subheading is whether the product is “cured,” the court determines that subheading 0604.90.30, 

7

 Second Nature further argues that “classification provisions are either eo nomine or by use.” Pl.’s 

Supp. Q. Resp. at 1. In contrast, the Government only submits that it is not an eo nomine provision. 

See, e.g., Def.’s Supp. Q. Resp. at 1–2. The Government does not address whether the provision 

is a use provision, or if there is indeed such a dichotomy under the HTSUS. See id.; Def.’s Br; 

Def.’s Reply; Def.’s OAQ Resp. 

Recent Federal Circuit opinions instruct the court to first “assess whether the subject Headings 

constitute eo nomine or use provisions.” Schlumberger, 845 F.3d at 1164; see also Apple Inc. v. 

United States, 964 F.3d 1087, 1093 (Fed. Cir. 2020) (“There are two types of HTSUS headings, 

eo nomine [and] use provisions.” (alteration in original)). In determining whether a provision is 

eo nomine, the court must focus on the “operative question” of whether the merchandise “qualifies 

as . . . items that are expressly named and covered by [the relevant] HTSUS heading.” Sigma-Tau, 

838 F.3d at 1278; see also Schlumberger, 845 F.3d at 1164. In other words, “when the 

interpretation center[s] on the terms describing an article,” that provision is considered to be eo 

nomine. Schlumberger, 845 F.3d at 1164 (citing Sigma-Tau, 838 F.3d at 1278). 

The language within subheading 0604.90.30, “dried or bleached,” describes a condition of the 

merchandise. It does not describe a use to which the product is dedicated. As such, the key inquiry 

posed by the language of subheading 0604.90.30 is whether the item qualifies as such “dried or 

bleached” items. Therefore, under the eo nomine–use dichotomy, the provision constitutes an eo 

nomine provision for the purposes of this case. 
Court No. 17-00271 Page 19 

composed of the words “dried or bleached,” constitutes an eo nomine provision for the purposes 

of this case. 

II. Category One Is Properly Classified Under Subheading 0604.90.30 

The court now turns to the classification of the products in Category One. The Government 

argues that because the items are dyed or glittered or further decorated with artificial snow, they 

are not merely “dried or bleached” products as defined under subheading 0604.90.30. Def.’s Br. 

at 20–21. Accordingly, the Government contends that the basket provision of subheading 

0604.90.60 is the only appropriate classification for the products at issue, as the provision best 

describing the merchandise in whole. Id. at 21. Further, the Government avers that even if 

subheading 0604.90.30 is an eo nomine designation, the items are transformed with features 

substantially in excess of those within the common meaning of the terms “dried” and “bleached.” 

Def.’s OAQ Resp. at 3. Second Nature responds that the eo nomine designation is applicable to 

improved products, and the additional processing such as coloring or glittering does not convert 

them into something else. Pl.’s Reply at 6. 

It is undisputed that all of the representative samples within Category One are “dried” 

products, Joint SOF ¶¶ 7–9, consisting of foliage, branches or other parts of plants, without flower 

buds, or grasses, mosses or lichens, that have glitter or another coating applied to their exterior, 

and/or have been dyed, id. ¶ 6. However, it is also undisputed that the representative samples 

within Category One are not bleached: the word “bleached” does not appear in any of the samples’ 

descriptions. See id. ¶¶ 6–9. Indeed, of the merchandise currently in dispute, only two styles 

within Category Seven contain such bleached components, id. ¶¶ 29, 32, with the remainder of 

bleached items found in Category Eight, id. ¶¶ 35, 40. 

Following the approach of Link Snacks, the court determines that the subject merchandise 

is described, eo nomine, by subheading 0604.90.30 as “dried” foliage, branches, or other parts of 
Court No. 17-00271 Page 20 

plants, without flower buds, or grasses, mosses or lichens. The only inquiry of this eo nomine 

designation is whether or not the item has been dried. The styles of Category One have all been 

dried. Thus, any argument that the further processes of dyeing and glittering affect the product 

beyond the drying process fails to “overcome the simple and straightforward classification of the 

subject merchandise” as dried products. Link Snacks, 742 F.3d at 966. 

The Government’s arguments to the contrary are unpersuasive. First, the Government 

notes that dictionary definitions indicate that the common meaning of “bleach” is to remove color, 

Def.’s Mot. at 18, and thus the addition of dyes and glitter imparting a certain color to the 

merchandise may render the items substantially in excess of the common meaning of bleached 

goods. However, as noted supra p. 19, the merchandise in Categories One through Six contain 

only items that were, and remain, dried. Subheading 0604.90.30 was not defined as “dried and 

bleached.” The subsequent improvements to those items do not transform their dried 

characteristic, and thus do not remove the merchandise from the simple classification provided in 

subheading 0604.90.30. 

Second, the Government raises a syntactic point on the use of the word “dyed” in the 

superior heading to argue that the “dried or bleached” subheading only covers items that have been 

merely dried, and not items that have been dried and further “dyed and/or bleached.” Def.’s Reply 

at 12; Def.’s OAQ Resp. at 5–6. The Government’s position is based on a definition of “fresh” as 

not dry, based on an exemplar sentence of fresh from the Collins Dictionary Online, and a 

definition from the Britannica Dictionary Online. Def.’s Reply at 4–6; Def.’s OAQ Resp. at 6. 

Based on this definition, the Government argues that subheading 0604.90, labeled “other” as 

opposed to “fresh,” can only mean dried merchandise because fresh is “not dry” for the purposes 

of the term. But this argument is not persuasive because the structure of the table and the offered 
Court No. 17-00271 Page 21 

definitions do not necessitate such a reading. Subheading 0604.90 could easily be read as “dried, 

dyed, bleached, impregnated, or otherwise prepared” by simple elimination,8

 and the dictionaries 

cited by the Government do not explicitly define “fresh” as not dry. Likewise, the Government’s 

argument as to description in whole and the need to resort to the basket provision is without merit. 

Accordingly, the court determines that the merchandise identified in Category One is 

properly classified under subheading 0604.90.30. 

III. Category Three Is Properly Classified Under Subheading 0604.90.30 

The product styles in Category Three consist of thin flat strips of a plant of the Calamus 

genus that are dried, dyed, and/or glittered, and “shaped directly into decorative curls.” Joint SOF 

¶ 15. The parties present “Item No. 01694, Cane Spring Red Glitter—Bulk Pack” as a 

representative style for the merchandise covered by Category Three. Id. ¶¶ 15–16. 

The Government argues that in addition to heading 0604, these items are prima facie 

classifiable under heading 4602 as “other articles, made directly to shape from plaiting materials 

or made up from articles of heading 4601 . . . : Of vegetable materials: Of rattan: Other: Other,” 

Def.’s Br. at 25 (internal quotation marks omitted), following the “relative specificity” rule of GRI 

3(a). Id. at 26–27. The Government further argues that items curled into shape are covered by the 

“other articles, made directly to shape from plaiting materials” language within heading 4602. Id. 

Thus, by the application of the relative specificity rule provided in GRI 3(a), the proper heading 

8

 Under such a reading, it is possible to envision a type of merchandise such as “preserved grasses,” 

undergoing a form of chemical treatment to retain moisture, and thus rendering such products, not 

fresh, not mosses or lichens, not dried or bleached, but “impregnated or otherwise prepared.” That 

reading would not render subheading 0604.90.60 “meaningless” as the Government suggests. 

Def.’s Reply at 4–6. It may be true that drying is the most common form of preparation for 

botanical products, but based on the arguments and briefing, the court is not persuaded that the 

structure of the tariff provisions necessitates the conclusion that the word “Other” in Subheading 

0604.90 can only be read as “dried.” 
Court No. 17-00271 Page 22 

should be 4602 according to the Government. Id. at 25. 

Second Nature submits that (1) the language of heading 4602 is limited by interpretive 

canons and that (2) the calamus strips are not plaiting materials constituting articles of Heading 

4601, nor do the strips constitute “made up” articles. Pl.’s Reply at 12–13. Thus, according to 

Second Nature, only heading 0604 is prima facie applicable, and subheading 0604.90.30 remains 

the proper classification for the merchandise within this category. Id. 

Headings 4601 and 4602 read in relevant part: 

4601 Plaits and similar products of plaiting materials, whether or not assembled 

into strips; plaiting materials, plaits and similar products of plaiting materials, 

bound together in parallel strands or woven, in sheet form, whether or not being 

finished articles (for example, mats, matting, screens): 

. . . . . 

4602 Basketwork, wickerwork and other articles, made directly to shape from 

plaiting materials or made up from articles of heading 4601; articles of loofah: 

 Of vegetable materials: 

4602.12 Of rattan: 

. . . . . 

 Other: 

4602.12.35 Wickerwork 

4602.12.45 Other: 

HTSUS, ch. 46 (2015). As of 2023, no significant changes have been implemented to the relevant 

provisions. See HTSUS (2023). Note 1, Chapter 46 further defines “plaiting materials: as follows: 

In this chapter the expression “plaiting materials” means materials in a state or form 

suitable for plaiting, interlacing or similar processes; it includes straw, osier or 

willow, bamboos, rattans, rushes, reeds, strips of wood, strips of other vegetable 

material (for example, strips of bark, narrow leaves and raffia or other strips 

obtained from broad leaves), unspun natural textile fibers, monofilament and strip 

and the like of plastics and strips of paper, but not strips of leather or composition 

leather or of felt or nonwovens, human hair, horsehair, textile rovings or yarns, or 

monofilament and strip and the like of chapter 54. 

Id., ch. 46 n.1. 
Court No. 17-00271 Page 23 

A. The Relevant Language in HTSUS 4602 Is Ambiguous 

The key question is whether the language of heading 4602 can cover items “shaped directly 

into decorative curls,” or if it is limited to require that “other articles, made directly to shape from 

plaiting materials,” be woven or interlaced. Second Nature argues that the canon noscitur a sociis 

limits the range of permissible construction, and based on the dictionary definition of 

“basketwork” and “wickerwork,” the other articles under heading 4602 should also be interpreted 

as requiring weaving or interlacing. Pl.’s Reply at 13–14. The Government argues that the 

language does not contain any such limitation or requirement pertaining to weaving or interlacing, 

and thus such requirements are unnecessary. Def.’s OAQ Resp. at 7. 

While canons of construction are certainly valuable tools of statutory interpretation, they 

are “no more than [a] rule[] of thumb.”  Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 146 

(2013) (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992)). The text is the “one, 

cardinal canon” a court must turn to “before all others.” Germain, 503 U.S. at 253; accord Robert 

A. Katzmann, Judging Statutes 29 (2014) (“When statutes are unambiguous . . . , the inquiry for a 

court generally ends with an examination of the words of the statute.”). 

Thus, the court first turns to the text of the statute to determine whether there is any 

ambiguity in the text of heading 4602 referring to “[b]asketwork, wickerwork, and other articles, 

made directly to shape from plaiting materials or made up from articles of heading 4601.” The 

Government argues that because the other articles are limited to those articles “made directly to 

shape from plaiting materials,” and because the curled pieces of the calamus plant are such articles 

“made directly to shape,” there is no ambiguity and the items are clearly defined as such. Def.’s 

OAQ Resp. at 7. 

The parties have not offered any clear definition of the term “other articles” or the phrases 

“made directly to shape.” The terms are undefined in the statute, and the chapter notes do not 
Court No. 17-00271 Page 24 

provide further guidance. The broad nature of the terms creates ambiguity as to whether it may 

encompass items shaped into any form, such as curled sticks, or whether it requires some form of 

weaving or interlacing. Thus, the term is ambiguous as to the scope of merchandise covered within 

the phrase “other articles, made directly to shape from plaiting materials.” 

B. Applying the Tools of Statutory Interpretation, the Meaning of “Other 

Articles, Made Directly to Shape” Requires Weaving or Interlacing 

Resolving this ambiguity requires the court to first consider context imparted by other 

related HTSUS provisions. See Gerson Co. v. United States, 898 F.3d 1232, 1236–37 (Fed. Cir. 

2018) (“[An HTSUS heading] does not exist in a vacuum, and we must read it in conjunction with 

other relevant provisions to discern its meaning.”). The court “must read the words in their context 

and with a view to their place in the overall statutory scheme.” BMW of N. Am. LLC v. United 

States, 926 F.3d 1291, 1299 (Fed. Cir. 2019) (quoting King v. Burwell, 576 U.S. 473, 486 (2015)). 

“Generally, the HTSUS is not designed so that the headings overlap; therefore, a GRI 1 analysis 

should be a searching one.” Metchem, Inc. v. United States, 30 CIT 902, 905, 441 F. Supp. 2d. 

1269, 1272 (2006), aff’d, 513 F.3d 1342 (Fed. Cir. 2008). 

First, considering the context of the headings, the Government’s suggested reading of 

heading 4602 is overbroad. The Government argues that because the merchandise is “shaped 

directly into decorative curls,” it aligns with the language of heading 4602, and thus according to 

the Government two headings are prima facie applicable. However, such a reading that curled 

items are “other articles, made directly to shape” for the purposes of heading 4602 necessarily 

implies that any shaped item whatsoever would be classified under heading 4602 as long as that 

item is made of plaiting materials. Def.’s Br. at 28 (citing HTSUS, ch. 46 n.1). Plaiting materials 

include not only “strips of other vegetable material” but also “unspun natural textile fibers, 

monofilament and strip and the like of plastics and strips of paper.” HTSUS, ch. 46 n.1. Such a 
Court No. 17-00271 Page 25 

broad interpretation would lead to an anomalous result with respect to the scope of not just 

headings 0604 and 4602, but also several other headings within the HTSUS involving textiles, 

plastics, and paper. 

Further, the Explanatory Notes to Chapter 46 provide guidance on the interpretation of the 

terms within Heading 4602. “After consulting the headings and section or chapter notes, [the 

court] may also consult the World Customs Organization’s Explanatory Notes, which accompany 

each chapter of the HTSUS.” Gerson, 898 F.3d at 1237 (quoting Otter Prods., LLC v. United 

States, 834 F.3d 1369, 1375 (Fed. Cir. 2016)). “Although not binding, where a tariff term is 

ambiguous the Explanatory Notes may provide persuasive and clearly relevant guidance to the 

meaning of the term.” Id. (emphasis added) (quoting StoreWALL, LLC, 644 F.3d at 1363).9

The general EN to Chapter 46 provides that:  

In addition to articles of loofah, this Chapter covers semi-manufactured products 

(heading 46.01) and certain articles (headings 46.01 and 46.02) made by 

interlacing, weaving or by similar methods of assembling unspun materials . . . . 

As described in the EN, the chapter is intended to include certain semi-manufactured products and 

certain articles made by interlacing, weaving, or similar method of assembling unspun materials. 

Considering this language in the EN, the court finds that Government’s suggested reading of “other 

articles, made directly to shape from plaiting materials” is overinclusive. Heading 4602 is 

formulated in a way that captures items of basketwork, wickerwork, and other articles involving 

methods such as interlacing, weaving, or other similar methods. To hold that curled items would 

9

 Second Nature argues with regard to Category Seven that it is improper to import a limitation 

from the ENs, citing Midwest of Cannon Falls Inc. v. United States, 122 F.3d 1423, 1428 (Fed. 

Cir. 1997). However, as noted in Gerson, the tariff provisions in Midwest were unambiguous. 

Gerson, 898 F.3d at 1238. As such, the holding in Midwest that the EN’s limitations cannot be 

used to narrow a clear, unambiguous expression of legislative intent is inapposite here, when the 

tariff provision in question “is ambiguous standing alone.” See id. (emphasis in original). 
Court No. 17-00271 Page 26 

be prima facie classifiable under this heading would lead to an anomalous application of the 

HTSUS. 

IV. Genuine Issues of Material Fact Preclude Summary Judgment as to Categories 

Four and Five 

In a tariff classification dispute, summary judgment is appropriate only when “there is no 

genuine dispute as to the nature of the merchandise and the classification determination turns on 

the proper meaning and scope of the relevant tariff provisions.” Deckers Outdoor Corp. v. United 

States, 714 F.3d 1363, 1371 (Fed. Cir. 2013). A genuine issue of material fact regarding “the 

salient physical characteristics” of the merchandise, id., or regarding “exactly what the 

merchandise is,” id. (quoting Bausch & Lomb, 148 F.3d at 1365), precludes a grant of summary 

judgment. At summary judgment, “the judge’s function is not himself to weigh the evidence and 

determine the truth of the matter but to determine whether there is a genuine issue for trial.” 

Anderson, 477 U.S. at 249; see also Ford Motor Co. v. United States, 157 F.3d 849, 854 (Fed. Cir. 

1998). In ascertaining whether a genuine issue of material fact exists, a court draws all inferences 

against the moving party in reviewing the submitted evidence. See Matsushita Elecs. Indus. Co. 

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Moreover, on cross-motions for summary 

judgment in tariff classification cases, “each party carries the burden on its own motion to show 

entitlement to judgment as a matter of law after demonstrating the absence of any genuine disputes 

over material facts.” Plexus Corp. v. United States, 44 CIT __, __, 489 F. Supp. 3d 1379, 1388 

(2020) (quoting, ultimately, Massey v. Del Labs., Inc., 118 F.3d 1568, 1573 (Fed. Cir. 1997)).

Unlike their arguments regarding the merchandise in Category Three, the parties do not 

dispute that the styles in Category Four and Category Five are “plaited.” See Joint SOF ¶¶ 17–20; 
Court No. 17-00271 Page 27 

Pl.’s Reply at 14, 17; Def.’s Reply at 18, 20–21.10 Thus Second Nature’s arguments as to noscitur 

a sociis and the requirement of weaving and interlacing are inapposite here.11

For Category Four, Second Nature maintains that the proper classification for Category 

Four items is subheading 4602.19.35 as items of wickerwork, as opposed to the Government’s 

preferred classification of subheading 4602.19.45. Likewise, for Category Five, Second Nature 

submits that subheading 4602.19.60 is the proper classification for Category Five items, as 

opposed to the Government’s preferred classification of subheading 4602.19.80. In both cases, 

the key issue is whether the items qualify as wickerwork. 

The Government argues that the common meaning of wickerwork requires that the items 

be made of “vegetable twigs and rods, in contrast to strips, filaments, etc.,” with twigs and rods 

consistently held in Customs’s practice as having “a generally cylindrical shape” and “rounded 

cross-sections.” Def.’s Br. at 30 n.12, 34 n.14, 38 n.16 (emphasis added). According to the 

Government, because the parties do not dispute that the items in Categories Four and Five are 

made of “thin flat strips,” Joint SOF ¶¶ 17–20, the items are made of strips and filaments and 

cannot be classified as wickerwork. In contrast, Second Nature argues that the products at issue 

consist of “twigs, osiers or the like plaited together,” Pl.’s Reply at 16 (citation omitted), and that 

10 Second Nature originally submitted that the items in Category Five are “not plaited—that is they 

are not braided.” Pl.’s Br. at 18 (internal quotation marks omitted); Pl.’s OAQ Resp. at 8. 

However, Second Nature later clarified its position as follows: “Plaintiff’s argument is not that the 

material is not plaited, but rather, the shapes of these products not qualify for classification in 

Heading 4602, HTSUS . . . .” Pl.’s Post-Arg. Br. at 2 (emphasis in original). 

11 By Second Nature’s own preferred definition, plaiting is defined as “the interlacing of strands: 

BRAIDING.” See Pl.’s Br. at 17 (first emphasis added). Second Nature argues, without 

supporting authority, that the term “other articles made directly to shape” requires the article to 

have a certain intricate weaving and interlacing, or a form of “braiding” found in ordinary 

basketwork or wickerwork. Pl.’s Post-Arg. Br. at 2. The court finds this argument unpersuasive 

based on the text of the HTSUS, and further declines to require such a level of intricacy that has 

not been clearly presented or defined. 
Court No. 17-00271 Page 28 

the common meaning of “wickerwork” does not require the items to be cylindrical, id. 

Assuming arguendo that Government’s definition of the common meaning applies, that 

would only require the twigs and rods to be “generally” cylindrical or with rounded cross-sections. 

It does not require that the components be completely round. Further, in reviewing the submitted 

evidence, the court finds that there is a genuine issue of material fact as to the salient physical 

characteristic of the merchandise: whether the items within Category Four and Category Five are 

composed of twigs and the like, or whether they are made of strips, filaments, and the like. 

The Government avers that the description and photographs in the Joint SOF “clearly show 

that the article is made directly to shape from plaiting materials” because the articles are made of 

thin flat strips. Def.’s Reply at 17. However, Exhibit No. 8, supra p. 10, appears at odds with this 

statement. See Simod Am. Corp., 872 F.2d at 1578 (“[T]he merchandise itself is often a potent 

witness in classification cases.”). A factfinder considering the exhibit may reasonably conclude 

either that the items are made from twigs of a generally cylindrical shape, or that the cross-sections 

are rounded. 

The Government also argues that Second Nature’s position on the so-called “lata star” item, 

which the parties have agreed to classify under subheading 4602.19.60 as wickerwork in Category 

Eight, is inconsistent with its position that the styles of Categories Four and Five are not properly 

classified under heading 4602. See, e.g., Def.’s Reply at 17; Def.’s OAQ Resp. at 9–10. The lata 

star is an item made of a dogbane plant of the Apocynum genus, which is a vegetable material 

other than willow or wood, with a round cross-section, plaited into the shape of a star and impaled 

on a wooden stick. Joint SOF ¶¶ 27, 36. Per the Government, the lata star’s “physical composition 

and description closely resemble those of the styles of Categories Three, Four, and Five.” Def.’s 

Reply at 17. But examining the physical sample of the “lata star” component alongside the “kambu 
Court No. 17-00271 Page 29 

ball,” which is a representative sample of Category Five composed of the same vegetable material 

as the “lata star,” the court concludes that the two items are not sufficiently similar to foreclose 

Second Nature’s arguments here. A factfinder may reasonably discern a difference in the 

roundedness of the items’ cross-sections and may reasonably conclude that the kambu ball is 

composed of either “twigs” of wickerwork or “strips.”12

Thus, evaluating each party’s motion on its own merits, and drawing all reasonable 

inferences against the party whose motion is under consideration, the court finds genuine issues of 

material fact remain as to each motion. Again, “the judge’s function” at the summary judgment 

stage “is not himself to weigh the evidence and determine the truth of the matter but to determine 

whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249; see also Ford Motor Co., 

157 F.3d at 854. To grant Second Nature’s motion, the court would need to weigh the evidence, 

including the Joint SOF’s description of the item as consisting of “thin flat strips” and find as a 

matter of fact that the products at issue consist of “twigs, osiers or the like plaited together.” 

Likewise, to grant Government’s motion, the court would need to weigh the evidence, including 

the physical exhibits such as the lata star, and find as a matter of fact that the products at issue 

indeed are composed of “thin flat strips.” The court’s function at this stage is not to determine the 

truth of these factual contentions one way or another, especially when the dispute involves the 

genuine issue of material fact regarding “exactly what the merchandise is.” Deckers Outdoor, 714 

12 As noted by the predecessor court in International Fashions v. United States, when an article’s 

relevant characteristics are not apparent from a layperson’s visual examination of an exhibit, it is 

the movant’s responsibility to “adduce testimonial evidence from persons familiar” with the 

merchandise. 78 Cust. Ct. 153, 155 (1977). In essence, the parties here seek a factual 

determination of whether the pieces of willow or dogbane plant may constitute materials of 

wickerwork or other materials, based on statements and conflicting evidence alone, without 

presenting the court with such expert testimony or other relevant evidence. The court may not 

make such factual determinations at the summary judgment stage based on the record before it. 
Court No. 17-00271 Page 30 

F.3d at 1371. Thus, summary judgment for either party on this issue is improper at this stage of 

the litigation.13

V. Category Six Is Properly Classified Under Subheading 6702.90.65 

Regarding the items in Category Six, the Government proposes an alternative classification 

under subheading 6702.90.65 as artificial flowers or fruit. Second Nature argues that the common 

meaning of “artificial flower” can only refer to flowers composed of man-made materials, and not 

natural materials such as parts of plants that have been dried and bleached. Pl.’s Br. at 19; Pl.’s 

OAQ Resp. at 9–10. Further, Second Nature argues that the two representative samples of artificial 

fruit do not resemble the actual fruit because of the difference in size and because they are placed 

on a stick. The court finds Second Nature’s arguments unpersuasive and concludes that the 

Government’s classification is correct. 

A. Artificial Flowers Need Not Be Composed Solely of Non-Natural 

Materials 

With the first contention, the court again begins with the text of the headings and relevant 

chapter notes. Pointing to dictionary definitions and several decisions of the predecessor court, 

Second Nature argues that the plain meaning of “artificial flowers” encompasses only articles 

made from “artificial” materials. Pl.’s OAQ Resp. at 9–10; Pl.’s Reply at 19–21. 

As a preliminary matter, the definitions offered by Second Nature do not support its 

synecdochic proposition that the materials comprising an artificial flower must themselves be 

13 Especially in a case such as this, where the parties have filed cross-motions for summary 

judgment, supported only by a joint statement of facts and certain physical exhibits, the grant of 

summary judgment requires caution. See 10A Charles Alan Wright & Arthur R. Miller, Federal 

Practice & Procedure § 2720 (4th ed. 2023) (“[A] party may argue that no issue exists in the hope 

that his legal theory will be accepted . . . .”). In any event, “[t]o the extent there is a genuine issue 

of material fact, both motions must be denied.” Marriott Int’l, 586 F.3d at 969. 
Court No. 17-00271 Page 31 

artificial to warrant “artificial” classification for the whole.14 Further, as noted by the Government 

during oral argument, subheading 6702.90.10 lists “feathers,” by no means exclusively a manmade item, as a possible material for artificial flowers.15

The cases of the predecessor court also support this conclusion. As Second Nature itself 

notes, the predecessor court held under the former tariff provision that artificial flowers can be 

made using dried plant parts. Pl.’s Reply at 21 (citing Terra Firma Sales Corp. v. United States, 

84 Cust. Ct. 54, 55 (1980)). In Terra Firma, the merchandise at issue consisted of parts of dried 

plants which had been glued together to form a flower and then attached to a wrapped wire stem. 

84 Cust. Ct at 55. The importer argued that artificial flowers must be composed of artificial 

substances, and the predecessor court held as follows: 

[I]n the opinion of the court, the artificiality of artificial flowers resides in the 

manner of their creation and not in the synthetic nature of their components. An 

artificial flower is a flower whose body was not created by nature, and it matters 

not whether it is made from bits and pieces of natural plants. . . . There is no 

ambiguity in the term artificial flowers and no reason to refer to legislative history. 

In any event, plaintiff’s references reveal only that the fabrication of artificial 

flowers from parts of natural plants was not one of the princip[al] concerns of the 

legislators. There is no indication that such products were not to be considered 

artificial. 

14 Neither one of Second Nature’s dictionary definitions of “artificial” support its argument. Pl.’s 

OAQ Resp. at 9. First, the Merriam-Webster Online Dictionary defines “artificial” as “humanly 

contrived, often on a natural model.” Artificial, Merriam-Webster, https://www.merriamwebster.com/dictionary/artificial (last updated Sept. 11, 2023). Under that definition, an “artificial 

flower” would be a humanly-contrived flower, often on a natural model. Likewise, the Britannica 

Dictionary defines “artificial” as “not natural or real; made, produced or done to seem like 

something natural.” Artificial, Britannica Dictionary, https://www.britannica.com/dictionary/ 

artificial (last visited Sept. 11, 2023). Using the second definition, the term “artificial flower” is a 

flower that is not natural or real, or a flower that is made, produced, or done to seem like something 

natural. But neither definition is so narrow as to suggest that all of the component parts of an 

artificial flower must also be humanly contrived or man-made. 

15 Also instructive is the wording of Note 3(b), Chapter 67, HTSUS, which excludes “artificial 

flowers, foliage or fruit of . . . wood or other materials, obtained in one piece . . .” The fact that 

such artificial flowers of wood, a naturally occurring ingredient, were explicitly excluded suggests 

that the common meaning of artificial flowers would generally encompass such materials. 
Court No. 17-00271 Page 32 

Id. (emphasis added). 

Further, in Cochran Co. v. United States, an early leading case, one of the articles at issue 

was “a cluster of black straw wound into the form of berries or grapes and set on a black-straw 

leaf attached to a stem of black straw and metal.” 10 Ct. Cust. 62, 64 (1920); see also Marshall 

Field & Co v. United States, 45 C.C.P.A. 72, 76 (1958) (describing background to Cochran). The 

Cochran court held that such items were classifiable as artificial fruit, notwithstanding the fact that 

they are made of straw, a natural material. 10 Ct. Cust. at 64. It reasoned that: 

It may be that neither exhibit truly represents any natural flower, fruit, leaf, or stem. 

Nevertheless, both come within the tariff designation of “artificial and ornamental 

fruits, grains, leaves, flowers, and stems,” inasmuch as they are articles which 

simulate the natural fruit, flower, leaf, or stem in its physical characteristics and 

appearance sufficiently to cause them in common understanding to be regarded as 

leaves, stems, flowers, or fruits produced not by nature, but by the hand of man, 

and which at the same time are appropriate and suitable to be used for those 

purposes of ornamentation to which the natural products may be temporarily 

devoted. 

Id. (emphasis added). The court finds these opinions to be instructive for the case at bar. 

Ultimately, the common meaning of “artificial flowers” cannot be read as requiring that the articles 

consist solely of man-made materials. 

B. The Merchandise Falls Within the Common Meaning of Artificial 

Flowers or Fruit 

The court turns to Second Nature’s second contention, which is that certain articles at issue 

would not be considered a flower or fruit based solely on their physical characteristics and 

appearance. Pl.’s Reply at 21. Second Nature does not raise this argument regarding the “Item 

No. 16236, Deco Flowers Yellow—Value Pack” sample, and agrees that it may resemble a flower 

in appearance. Pl.’s OAQ Resp. at 9. Second Nature makes distinctions only as to Exhibit No. 

10, “Item No. 3229, Pumpkins—Stemmed Orange—Consumer Pack”; and Exhibit No. 11, “Item 
Court No. 17-00271 Page 33 

No. 00696, Sola Berries Red Glitter—Consumer Pack.” Pl.’s Reply at 21; Joint SOF ¶ 22; Joint 

Cert. Exs. at 1. Second Nature’s arguments are unpersuasive. 

Second Nature contends that “when dried plant parts are fashioned into a [two-inch] wide 

miniature structure resembling a pumpkin, and placed on a stick,” the resulting article is not an 

“artificial fruit” because “it would not be regarded as a fruit.” Pl.’s Reply at 21. Likewise, Second 

Nature argues that when dried plant parts are shaped into the form of berries and placed on a stick, 

the resulting article would not be considered to be artificial berries because “berries are not 

mounted on a stick.” Id. 

Whether Second Nature takes issue with the disparity in size between the samples and real 

fruit or the fact that both samples are mounted on a stick, see Pl.’s OAQ Resp. at 10–11, neither 

distinction is compelling. In both appearance and size, the relevant representative samples, Exhibit 

No. 10, “Item No. 3229, Pumpkins—Stemmed Orange—Consumer Pack” and Exhibit No. 11, 

“Item No. 00696, Sola Berries Red Glitter—Consumer Pack,” may reasonably be regarded as 

artificial fruit in common understanding.16 Further, even if the articles are mounted on a stick, 

16 In United States v. Dieckerhoff, Raffloer & Co., the Court of Customs Appeals held that wax 

pieces about the size of a small hickory nut, resembling in shape and color of various fruits and 

vegetables, are significantly different in terms of size and thus not considered artificial flowers. 4 

Ct. Cust. 384, 385 (1913). That case is inapposite here, where Second Nature has not established 

such a significant difference in size. The fact that the samples are only two inches wide does not 

necessarily create a significant disparity with natural products of pumpkin, especially when 

considering that pumpkins used for decoration are often miniature varieties of a similar size. The 

berries in the sample are also not significantly different in size from natural berries. 

Further, as noted in Cochran, there is no requirement that the merchandise must accurately 

represent an actual plant. 10 Ct. Cust. at 64 (“It may be that neither exhibit truly represents any 

natural flower, fruit, leaf, or stem. Nevertheless, both come within the tariff designation . . . .”). 

The relevant inquiry is whether a man-made article “looks enough like a flower (real or imaginary) 

to be regarded as an artificial flower [or fruit] ‘in common understanding.’” Marshall Field, 45 

C.C.P.A. at 80 (emphasis omitted) (quoting Cochran, 10 Ct. Cust. at 64). 
Court No. 17-00271 Page 34 

they would still fall under HTSUS heading 6702, which encompasses “articles made of artificial 

flowers, foliage or fruit.” 

Accordingly, the court determines that the merchandise within Category Six, as represented 

by the samples, are classified prima facie under heading 6702, HTSUS. The court further 

determines that subheading 6702.90.65 is the proper subheading for classification of the 

merchandise. 

VI. Genuine Issues of Material Fact Preclude Summary Judgment as to Category 

Seven 

A. The GRIs Are Applied in Numerical Order 

The Government argues that even if the subject merchandise within this category are 

properly described in Heading 0604, the bouquets and mixtures also contain items described under 

other headings, and thus the court must apply GRI 3(b) for the composite goods. In the 

Government’s words, “Note 2 to Chapter 6 must be read together with GRI 3,” Def.’s Reply at 26 

(emphasis in original). The problem with this argument is that it relies on GRI 3(b) analysis of 

composite goods when analysis under GRI 1 is not exhausted.

A basic tenet of HTSUS classification is that the GRIs operate in a hierarchy. See Otter 

Prods., 834 F.3d at 1375 (“We apply the GRIs in numerical order . . . .”). As noted above, because 

the HTSUS is not designed so that the headings overlap, the GRI 1 analysis should be searching. 

Metchem, 30 CIT at 905, 441 F. Supp. 2d at 1272. The court does not reach GRI 3 unless it is 

satisfied that more than one heading may cover the article. Orlando Food, 140 F.3d at 1440. 

GRI 1 provides that “classification shall be determined according to the terms of the 

headings and any relative section or chapter notes.” GRI 1, HTSUS (2015) (emphasis added). 

“We apply GRI 1 as a substantive rule of interpretation, such that when an imported article is 

described in whole by a single classification heading or subheading, then that single classification 
Court No. 17-00271 Page 35 

applies, and the succeeding GRIs are inoperative.” Rubies Costume Co. v. United States, 922 F.3d 

1337, 1342 (Fed. Cir. 2019) (citation omitted). “The Chapter Notes are an integral part of the 

HTSUS, and have the same legal force as the text of the headings.” Roche Vitamins, 772 F.3d at 

731; see also Libas, Ltd. v. United States, 193 F.3d 1361, 1364 (Fed. Cir. 1999) (treating Note 4 

to Chapter 52 as having the same weight as statutory language). Therefore, “a court first construes 

the language of the heading, and any section or chapter notes in question.” Orlando Food, 140 

F.3d at 1440. Once imported merchandise is determined to be classifiable under a particular 

heading, a court must then look to the subheadings to find the correct classification of the 

merchandise in question. Id. Only after “exhausting the terms of the subheadings and related 

[chapter] notes would one turn to GRI 3.” Telebrands, 36 CIT at 1236, 865 F. Supp. 2d at 1281.17

Thus, the Government’s argument that “Note 2 to Chapter 6 must be read together with 

GRI 3,” Def.’s Reply at 26 (emphasis in original), is unpersuasive. That argument runs counter to 

the well-recognized rule that the GRIs apply in numerical order; the interpretation of chapter notes 

is paramount when evaluating classification under GRI 1. Only after exhausting GRI 1 can the 

court turn to subsequent GRIs. Id.; see also Lemans Corp. v. United States, 660 F.3d 1311, 1316 

17 As the Telebrands court described in detail: 

What is clear from the legislative history . . . and case law is that GRI 1 is 

paramount. [GRI 1] provides in relevant part, “classification shall be determined 

according to the terms of the headings and any relative Section or Chapter Notes.” 

. . . The Explanatory Notes to GRI 1 state that “the terms of the headings and any 

relative Section or Chapter Notes are paramount, i.e., they are the first consideration 

in determining classification” and the GRIs are to be considered in numerical order. 

The headings and relevant notes are to be exhausted before inquiries, such as those 

of GRI 3, are considered, e.g., specificity or essential character. The HTSUS is 

designed so that most classification questions can be answered by GRI 1, so that 

there would be no need to delve into the less precise inquiries presented by GRI 3. 

36 CIT at 1235, 865 F. Supp. 2d at 1280 (emphasis added) (citations and footnotes omitted). 
Court No. 17-00271 Page 36 

(Fed. Cir. 2011) (“GRI 1 requires classification according to the terms of the headings and any 

relative section or chapter notes. If GRI 1 resolves the issue, the court is not to look to other GRIs.” 

(internal citation and quotation marks omitted)). 

B. Genuine Issues of Material Fact Remain as to the Nature of the 

Merchandise 

The Government’s other argument is that Note 2 to Chapter 6 cannot resolve the 

classification issue because of the nature of the merchandise. Thus the Government implies that 

application of GRI 1 does not solve the issue, necessitating application of the subsequent GRIs. 

In the Government’s words, “Note 2 does not obviate the need for an essential character analysis 

under GRI 3(b) for composite styles, when such bouquets consist in part of components that, if 

imported separately, would be classified under different tariff provisions.” Def.’s Br. at 50 

(emphasis added). The Government contends that because the goods all contain components that 

the parties agree would be classified under different tariff provisions, id. at 44, and further because 

those components are not mere accessories, the merchandise falls outside the scope of the chapter 

note, id. at 51; Def.’s Reply at 27–28. 

Second Nature counters that Note 2, Chapter 6 resolves the classification issue. According 

to Second Nature, “[o]nce it is determined that a bouquet contains a part of a plant specified in 

heading 0604, HTSUS, and that said plant part is dried or bleached, the bouquet is classified under 

subheading 0604.90.30, HTSUS, [and] resort to GRI 3 is precluded.” Pl.’s Reply at 23. Second 

Nature further argues that if a bouquet contained items falling within two or more subheadings 

within headings 0603 or 0604, HTSUS, a GRI 3 analysis may be necessary, but that this is not the 

situation at bar since Second Nature’s bouquets “contain only dried or bleached plant parts of 

subheading 0604.90.30.” Id. at 23 n.16. Thus, according to Second Nature, “mixtures in the form 
Court No. 17-00271 Page 37 

of bouquets, floral baskets, wreaths and similar articles, containing any of the goods of heading 

0603 or 0604, HTSUS, are classifiable in those headings.” Id. at 22. 

Note 2, Chapter 6 of the HTSUS provides in relevant part: 

Any reference in heading 0603 or 0604 to goods of any kind shall be construed as 

including a reference to bouquets, floral baskets, wreaths and similar articles made 

wholly or partly of goods of that kind, account not being taken of accessories of 

other materials. However, these headings do not apply to collages or similar 

decorative plaques of heading 9701. 

HTSUS, ch. 6 n.2 (emphasis added). 

Clearly, the parties dispute a material fact, which is the physical characteristics of the 

bouquets. See, e.g., Pl.’s Supp. Q. Resp. at 2; Def.’s Supp. Q. Resp. at 2. Despite the parties’ 

representations otherwise, the record shows pronounced disagreement on the question of whether 

(1) the items are bouquets and similar articles containing only dried or bleached plant parts of 

subheading 0604.90.30, or (2) the items are prima facie classifiable under a different heading and 

thus fall outside the scope of the text allowing “accessories” to be disregarded. As noted by the 

Government, the parties indicated that at least two of the styles contain items that, if individually 

imported, would be properly classified in subheading 4602.19.60, HTSUS. Def.’s Br. at 46, 48; 

Joint SOF ¶¶ 28, 31. That classification contrasts with Second Nature’s statement that the bouquets 

“contain only dried or bleached plant parts of subheading 0604.90.30.” Pl.’s Reply at 23 n.16; see 

also Pl.’s Supp. Q. Resp. at 2 (stating that Second Nature does not agree with the Government’s 

characterization). 

Further, in response to the Government’s arguments that Note 2 may not be read in an 

overbroad manner, Second Nature argues that the note limits its scope “to bouquets, floral baskets, 

wreaths and similar articles,” and disregards “accessories.” Pl.’s OAQ Resp. at 3. But the focus 

of Second Nature’s arguments has been on the bouquet products. See, e.g., Pl.’s OAQ Resp. at 12 
Court No. 17-00271 Page 38 

(“Note 2 to Chapter 6 specifically governs the classification of bouquets of Heading 0604 . . . .”); 

Pl.’s Post-Arg. Br. at 3. Second Nature does not address how “Item No. 40180, Pumpkin / Root 

Ball Mix Orange—Jumbo Bag,” an item that the parties agree is “representative” of the 

merchandise within this category, Joint SOF ¶¶ 26, 30, can be properly characterized as “bouquets, 

floral baskets, wreaths and similar articles” that contain “only dried or bleached plant parts of 

subheading 0604.90.30.”18 Further, Second Nature does not address how this item factually 

supports its legal argument “that when two or more products covered by the same tariff provision 

are imported together, they do not constitute a ‘mixture.’” Pl.’s Post-Arg. Br. at 4 (emphasis 

added); see also Pl.’s Supp. Q. Resp. at 2. Thus Second Nature, as movant, has not established the 

absence of a genuine issue of material fact, and summary judgment is improper at this stage. See 

Anderson, 477 U.S. at 247; USCIT R. 56(a). 

Likewise, the Government’s contention that all the merchandise within this category 

contains at least one item that is indisputably classified in a heading other than heading 0604 also 

leads to a genuine issue of material fact.19 Indeed, the Government suggests that it does not know 

18 By the parties’ submission of uncontroverted fact, that style consists of ball-shaped items, twothirds of which consist of “root balls” properly classified under subheading 4602.19.60 if 

individually imported. Id. ¶¶ 30, 31. The other components are the artificial pumpkins discussed 

supra p. 11, with the added fact that they are not stemmed. Id. ¶ 30. A factfinder inspecting the 

physical sample as represented in Exhibit No. 14, supra p. 11, may reasonably conclude that these 

items are simply placed together in a vinyl bag. See Trans-Atlantic Co. v. United States, 60 

C.C.P.A. 100, 102–03, 471 F.2d 1397, 1398 (1973) (“[T]he sample of the imported merchandise 

. . . is itself a potent witness . . . .”); see also Joint SOF ¶ 30; Joint Cert. Ex. at 2; Exhibit No. 14. 

Second Nature does not adequately address why this style, representative of the merchandise 

within Category Seven, fits its description of “all or most of the items in a bouquet [that], if 

individually imported, would be classified under the same HTS item, 0604.90.30.” Pl.’s Post-Arg. 

Br. at 4. 

19 Not only is the Government’s factual claim missing from the formal Joint SOF, but it is also in 

contention with the samples that the parties provided. Specifically, a factfinder may reasonably 

conclude that “Item No. 03347, Panchu Bouquet,” does not contain at least one item classified 

outside of Heading 0604, and the Government has failed to identify such an item on the record 
Court No. 17-00271 Page 39 

the actual components of the goods in this category and argues that further discovery is necessary 

to determine their components. Def.’s OAQ Resp. at 8. The court concludes, therefore, that the 

Government, as cross-movant, has also not demonstrated an absence of a genuine dispute of 

material fact. See Anderson, 477 U.S. at 247 (1986); USCIT R. 56(a). 

The parties here dispute a genuine issue of material fact regarding the salient physical 

characteristics of the individual components constituting Category Seven items. See Deckers 

Outdoor, 714 F.3d at 1371They dispute whether the merchandise comprises only items properly 

classified under heading 0604, or whether certain items may fall under a different heading. This 

dispute, in turn, implicates additional genuine issues of material fact about whether those items 

can be characterized as accessories to the primary article, and what the primary article is.20 The 

“salient physical characteristics” of the subject merchandise have thus not been established by 

undisputed facts, Deckers Outdoor, 714 F.3d at 1371, and this action may not be resolved on 

summary judgment. 

Again, “[t]he fact that both parties have moved for summary judgment does not mean that 

the court must grant judgment as a matter of law for one side or the other . . . .” Mingus, 812 F.2d 

at 1391. “Rather, the court must evaluate each party’s motion on its own merits, taking care in 

before the court at summary judgment. Joint SOF ¶ 32; Def.’s Supp. Q. Resp. at 2. Instead, the 

Government now claims that this item should be categorized in Category Eight. Def.’s Supp. Q. 

Resp. at 2–3. 

20 In essence, Second Nature asks the court to categorically determine that all merchandise within 

Category Seven may be properly classified under subheading 0604.90.30, Pl.’s Br. at 19–21, by 

focusing on specific samples without explaining why the “Pumpkin/Root Ball Mix Orange—

Jumbo Bag,” a sample representing the style of several items within Category Seven, is adequately 

covered by the text of Note 2, Chapter 6. Likewise, the Government asks the court to categorically 

determine that all merchandise within Category Seven must be resolved under GRI 3, without 

establishing the factual basis for that claim, i.e., that at least one component of each item in 

Category Seven is classifiable under a heading other than heading 0604. 
Court No. 17-00271 Page 40 

each instance to draw all reasonable inferences against the party whose motion is under 

consideration.” Id. “To the extent there is a genuine issue of material fact, both motions must be 

denied.” Marriott Int’l, 586 F.3d at 969. Accordingly, both motions are denied with respect to the 

classification of the items described in Category Seven at this stage of the litigation. 

CONCLUSION 

For the foregoing reasons, it is hereby: 

ORDERED that Second Nature’s Motion for Summary Judgment is GRANTED as to the 

merchandise identified in Categories One and Three, which are classified under HTSUS 

subheading 0604.90.30; and it is further 

ORDERED that the Government’s Cross-Motion for Summary Judgment is GRANTED

as to the merchandise identified in Category Six, which is classified under HTSUS subheading 

6702.90.65; and it is further 

ORDERED that the parties’ classification of the merchandise identified in Category Two 

under HTSUS subheading 0604.90.30, see Def.’s Br. at 6, 24; Pl.’s Reply at 11, and in Category 

Eight under HTSUS subheadings 1401.10.00, 4602.19.60, 0604.90.10, 0604.90.30, and 

3926.40.00, see Joint SOF ¶¶ 34–41, is hereby adopted by the court; and it is further 

ORDERED that, insofar as the motions do not pertain to the merchandise identified in 

Categories One, Two, Three, Six, and Eight, Second Nature’s Motion for Summary Judgment and 

the Government’s Cross-Motion for Summary Judgment are DENIED; and it is further 

ORDERED that, within fourteen days of this order, the parties will file a joint status report 

and a proposed scheduling order governing the second phase of the litigation. See Feb. 2022 

Scheduling Order at 2. The proposed scheduling order should provide for any discovery, including 
Court No. 17-00271 Page 41 

written discovery and depositions, that may be necessary for classifying the merchandise identified 

in Categories Four, Five, and Seven. 

SO ORDERED. 

/s/ Gary S. Katzmann 

Gary S. Katzmann, Judge 

Dated: September 21, 2023 

 New York, New York