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 J udgment is granted in part and denied in part. Defendant’s Cross-Motion for Summary Judgment is gr anted 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, Commercia l Litigation Branch, Civil Division, U.S. Department of Justice, of New York, N.Y., argued for Defendant Un ited States. With him on the briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, Justin R. Mille r, Attorney-In-Charge. Of couns el on the brief was Alexandra Khrebtukova, Office of the Assist ant Chief Counsel, Inte rnational Trade Litigation, U.S. Customs and Border Protection of New York, N.Y. Katzmann, Judge: Before the c ourt are cross-motions for su mmary judgment. Plaintiff Second Nature Designs Ltd. (“Second Nature”) cont ests the denial of pr otests challenging the United States Customs and Border Protection’s (“Customs”) classificatio n 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 Tari ff Schedule of theCourt No. 17-00271 Page 2 United States (“HTSUS”), 1 carrying a duty rate of 7 percent ad valorem. Second Nature argues that the proper classificati on 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 HT SUS provide the correct classification for other categories. For the reasons established herein, the cour t agrees with Second Nature’s preferred classifications for certain categor ies of the subject merchandise i nvolving dried items and curled items. For certain other categories, the court agrees with the Govern ment’s preferred classification regarding certain styles of merchandise constituting artificial flowers or fruit. The court further finds that factual issues persist as to the rema inder 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 Su mmary Judgment.
BACKGROUND The court first sets out the ove rarching legal, factual, and procedural background necessary to contextualize the various classification claims brought fo rth by Second Nature and the Government. The court will further develop suchbackgrounds 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 1 263, 1266 (Fed. Cir. 2013). The HTSUS sets out the tariff rates and statistical categories usi ng a series of nested chapters, headings, and

1 References to “chapter,” “heading,” or “subheadi ng” herein refer to the relevant parts of the HTSUS.Court No. 17-00271 Page 3 subheadings. In general, the HTSUS’s prim ary headings describe broad categories of merchandise, while its subheadings provide a particularized divi sion of the goods within each category. The HTSUS “shall be considered to be st atutory 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 Additi onal 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 classificatio n decisions involves two steps. First, the c ourt determines the proper meaning of the terms used in the HT SUS 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 under lying factual issue of exactly what the merchandise is.”). The court applies the GRIs in numerical orde r beginning with GRI 1; the court will reach subsequent GRIs only if analysis under the prec eding 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 HTSU S is designed so that most classification questions can be answered by GRI 1

. . . . ” Telebrands Corp. v. Un ited 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.” OrlandoCourt 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 co rrect classification of the merchandise in question. Id. Only after “ex hausting 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 classifi cation of “goods consisting of more than one material or substance” shall be determined according to the principles of GRI 3. GR I 2, HTSUS. Under GRI 3(a), goods are classified into “[t]he heading whic h provides the most speci fic description”; but if multiple headings “each refer to part only of th e 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 th e material that gives the good its “esse ntial character.” GRI 3, HTSUS. If no essential character can be found, then the good is classified pursuant to GRI 3(c) “under the heading whic h occurs last in numerical orde r among those which equally merit consideration.” Id. After using the GRIs to de termine the correct heading, the court determines the correct HTSUS subheading usin g GRI 6, which directs that GRIs 1 through 5 be reapplied at the subheading level. GRI 6, HTSUS. “Only after determining that a produc t is classifiable under the heading should the court look to the subheadi ngs 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 c ourt defines HTSUS tariff terms by relying on its own understanding of the te rms and “consult[ing] lexicographi c and scientific authorities, dictionaries, and other reliable information sources.” Id. at 1379. For additional direction onCourt 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 “Explan atory Notes are not legally binding,” they “may be consulted for gui dance and are generally indicative of the proper interpretation of a tariff provision.” Roche V itamins, 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, S econd Nature filed 140 entries of the subject merchandise with the port of Bu ffalo, New York. Id. Customs classified the merchandise under subheading 0604.90.60, HTSUS, which covers: “Foliage , branches and othe r 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, impr egnated or otherwise prepared: Other: Other.” Joint SOF ¶ 4. Second Nature timely filed eleven protes ts 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 N o. 7; Am. Answer ¶ 11, Aug. 24, 2022, ECF No. 114. These protests contested th e classification, rate, and amount of duty a ssessed 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 cu stoms territory of the United States mu st first be “entere d,” or in other words declared, to Customs. Customs is then re sponsible for determining the final classification and valuation of the goods through a process calle d “liquidation of the entry.” 19 U.S.C. § 1500 sets out the procedures for the liquidation pr ocess, which includes final appraisal, a finalCourt 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 flow ers or flower buds, and grasses, mosses and lichens, being goods of a kind suitable for bouquets or for ornamental purposes, fresh, dried, dyed, bleach ed, impregnated or otherwise prepared: Other: dried or bleached.” Compl. ¶ 11; Am. Answer ¶ 11. On May 8, 2017, Customs issued Headquarter s Ruling Letter H279097, again confirming the 0604.90.60 classification for the further worked drie d or bleached botanicals. Joint Mot. at 5; Compl. ¶ 12; Am. Answer ¶ 12. As support, Cu stoms cited rulings wher e 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 acti on. Compl. ¶ 13; Am. Answer ¶ 13. Following the denial of its protests, Plai ntiff timely filed suit on November 17, 2017, contesting Customs’s classification and alleging that the goods ar e 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 liquidatio n, i.e., final ascertainment of dut ies. After liquidation of the entry occurs, an importer may seek administrative review of a classificat ion decision by protesting the decision to Customs, which results in an in ternal review of the decision by a higher level of authority within Customs. If the importer is dissatis fied with the decision resulting from its protest, it may then, as here, seek judici al 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 ex tension by the parties, discoverywas ultimately extended until February 14, 2022—largely to accomm odate the parties’ jo int efforts to establ ish 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 N o. 84 (discussing effort s to produce a joint statement of facts pursuant to Rule 56.3 of the U.S. Cour t of International Trade (“CIT”)). On January 28, 2022, shortly before the close of discovery, the parties jointly moved for an order implementing certain ca se management procedures, stay ing discovery, and dividing the proceedings into two phases. S ee Joint Mot. for Entry of Order Providing Case Management Proc. & Dividing Remainder of Litigati on into Two Phases, Jan. 28, 2022, ECF No. 91 (“Joint Mot.” or “Joint Motion”). In the Joint SOF that was atta ched 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 th at the parties sought only the c ourt’s determination as to the “appropriate methodology” for applying the GRIs in Category Seven, and that the parties would further resolve the proper classifi cation through “briefing or by trial” as necessary. Joint Mot. at 2. The Parties further indicated that the Joint SO F would serve as the parties’ joint statement of facts for the purposes of USCIT Ru le 56.3. See Joint SOF at 1. The court granted the Joint Motion and partitioned the litigation into two phases, a nd the parties proceeded with the following motions for summary judgment as part of the first phase. See Scheduli ng 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 thatthe 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 inCourt 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 Asse rting a Counterclaim, Mar. 22, 2022, ECF No. 99 (“Def.’s Am. Reply”). On Ju ly 25, 2022, the court granted the Government’s motion for leave to amend and de signated 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, th e Government filed its Amended Answer on August 24, 2022. See Am. Answer. In the Amende d Answer, in addition to the alternative classification under HTSUS 6702.90.65 that the Gove rnment originally s ought to add in its amendment, the Government included three more alternative classifications for certain items, variously under HTSUS subheadi ngs 4602.12.45, 4602.19.45, and 4602.19.80. See id. ¶¶ 14, 17, 20, 23. The additional alternativ e classifications under heading 4602 were not mentioned in the Government’s motion for leave to file an amende d 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 Summar y Judgment to classify all ei ght 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 Governmentfiled its Cross-Moti on for Partial Summary Judgment on September 30, 2022. See Def.’s Resp. & Cross-Mot. for Partia l 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 brie f, and the court granted the motion. See Mot. Out of Time Leave to File ReplyCourt 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 Repl y”). On January 10, 2023, the parties jointly submitted fifteen phy sical 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 th e parties in advance of oral argument. See Letter, June 8, 2023, ECF No. 133. Second Nature a nd the Government filed written responses. See Pl.’s Resp. to Ct.’s Qs. Fo r 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., J une 20, 2023, ECF No. 136. The court invited the parties to fi le submissions after oral argu ment, 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, 2 023, 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. Se e Pl.’s Resp. to Ct.’s June 30, 2023 Letter, July 12, 2023, ECF No. 140 (“Pl.’s Supp. Q. Resp.”); De f.’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 merchand ise into eight categories. Unless otherwise noted, the following facts ar e undisputed in the part ies’ joint statement an d subsequent briefing: In Category One, the subject product styles c onsist of foliage, branch es, or other parts of plants, without flower buds, or gr asses, mosses, or lichens, that have glitter or another coatingCourt No. 17-00271 Page 10 applied to their exterior, and/or have been dyed. Joint SOF ¶ 6. Th e parties presented five styles as representative of the mercha ndise 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) Ex hibit No. 4, “Item 65536, Bana na Stem White Wash, Value Pack”; and (5) Exhibit No. 5, “Item No. 64649, Pin econes 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 classifi ed under HTSUS 0604.90.30. Def.’s Br. at 6, 24; Pl.’s Reply at 11. In Category Three, the subject pr oduct styles consist of thin fl at strips of a plant of the Calamus genus that are dried, dyed, and/or glittere d, 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 th is category. Id. ¶ 16; Joint Cert. Exs. at 1. In Category Four, the subject produ ct styles consist of thin fl at strips of colored willow (genus Salix) plaited into the shape of a triangl e and impaled on a stick. Joint SOF ¶ 17. “Item No. 03322, Christmas Trees Gold Glitter—Consumer Pack” represents the ch aracteristics 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 representa tive product. Joint Cert. Exs. at 1. In Category Five, the subject produc t styles consist of thin flat strips of vegetable materials, other than willow or wood, shaped di rectly into balls or other shap es, and some of which are also impaled on sticks. Joint SOF ¶ 19. Exhib it No. 8, “Item No. 00210, Kambu Balls 8cm—StemmedCourt No. 17-00271 Page 11 Red Glitter—Consumer Pack” repr esents the characteristics of the merchandise within this category. Id. ¶ 20; Joint Cert. Exs. at 1. In Category Six, the su bject product styles consist of ar ticles 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 styl es represent the merchandise cove red 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 pr oduct styles all contain more than one type of item. Joint SOF ¶ 21. The parties have agreed that the following six styles ma y 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) Exhib it 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 Bouque t”; and (5) Exhibit No. 16 “Item No. 50970, Fall Harvest Bunch Bouquet.” Id.; Joint Cert. Exs. at 2. The pa rties indicated that “Item No. 51670, Root Ball Bouquet Item” was inadvertently incl uded as a representative style, and further that “they intended to omit it from the Joint SO F.” Joint Cert. Exs. at 2; Joint SOF ¶ 21. Category Eight contains 123 subject product st yles, and the parties agree on the tariff classification of the imported mercha ndise 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 pursu ant to 28 U.S.C. § 1581(a). The court may grant summary judgment when the movant shows that “there is no genuine issueCourt 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 USCI T 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 ot her words, the inquiry is “whe ther the eviden ce 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 j udgment, each motion is evaluated on its own merits and reasonable inferences are resolved agai nst the party whose motion is being considered.” Marriott Int’l Resorts, L.P. v. United Stat es, 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. “R ather, 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 c onsideration.” 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 Se ven are properly classified as “dried or bleached” botanicals under the eo nomine provision 3 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 Seve n. 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 approp riately 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 appr opriately classified under HTSUS 6702.90.65 as artificial flowers or fr uit; and (6) Category Seven consists of composite items that require GRI 3 to be read toge ther with Note 2, Chapte r 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 “as sess whether the subject Headings constitute eo nomine or use prov isions because different rules an d 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 princi pal 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 pr ovisions can be treated as containing an eo nomine designation. Sigma-Tau, 838 F.3d at 1278. Subheadings, as well as headings, canCourt 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 ordinar ily include all forms of the named article.” Irwi n 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 incide ntally altered is not excluded from an unlimited eo no mine statutory designation.” Ca sio, 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 co mmon meaning of the term .” Id. (emphasis in original) (citation omitted). Fact ors such as design, use, or func tion 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, therefor e, 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)). Fo r classification issues, “the construction of a Customs classification provision by a pane l of [the Federal Circuit] is binding upon both the Court of International Trade and subsequent panels of [the Federal Circuit] in late r 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 Robe rt 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 ar gument 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 w ith the words of the s uperior heading, for the purpose of comparison with anot her eight-digit leve l subheading. Second Nature argues that “while subheadings 0604.90.30 and 0604.90.60, HTSUS ar e not, in isolation, considered ‘eo nomine’ provisions, when read in conjunction withthe superior headings and subheadings, they do in fact describe a t ype of merchandise eo no mine[.]” Pl.’s OAQ Resp at 1. Thus, according to Second Nature, “[g]oods of subheading 0604.90 are diff erentiated according to whether they were subjected to certain forms of proce ssing (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 orwell-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., cont ain a noun describing a co mmercial name for a product or merchandise, the provisi on is not an eo nomine designati on. Id.; Def.’s Reply at 6–7; see also Def.’s OAQ Resp. at 3. Although the parties have not directly supporte d their respective argu ments with cases on point, a close reading of two cas es cited in the briefs only fo r 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 secondCourt No. 17-00271 Page 16 case, Link Snacks, was decided by the Federal Circ uit. 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 argu ed by Bruckmann to be proper . . . is [n]ot adjec tival in form . . . . That item is an [e]o nomine provision a nd, by the general rule, doe s not include parts.”). In Link Snacks, the Federal Circuit he ld that the subheading in HTSUS 1602.50.09, 5 containing only the adjectival phr ase “[c]ured or pickled,” is an eo nomine designation. 742 F.3d at 966 (“The subject beef jer ky is described, eo nomine, byHTSUS 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 whet her 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 respect able argument that the further step of dehydration affects the beef

5 The relevant provisions of the HTSUS were as follows: 1602 Other prepared or preserve d 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 Li nk 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 th at ‘include[s] all forms of the named article,’ even improved forms.” Link Snacks, Inc. v. Un ited States, 37 CIT 373, 378, 901 F. Supp. 2d 1369, 1375 (2013) (alterations in original ) (citation and internal quotat ion 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 ad jectival terms “[c]ured or pi ckled” 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 HT SUS provision in question. Unde r 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 pl ants, without flower s 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 si gnificant changes have been implemented to the relevant provision s. See HTSUS (2023). While the court takes a “heading-specific appr oach,” Victoria’s Se cret Direct, LLC v. United States, 769 F.3d 1102, 1110 (Fed. Cir. 2014), the opinions of the Federal Circuit and predecessor courts may provide seve ral “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 classi fication 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 060 4.90.30 is an eo nomine provision. Unlike theCourt 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, lik e Link Snacks, involves interpretation of a subheading within the HTSUS. Also unlike Bruckmann, which involved the application of a specific rule of interpre tation regarding a “parts” designation, this case invo lves general descriptors and raises the issue of whether such descriptors, names, or nouns may tr avel down, as was the case in Link Snacks. Thus the court follows the Federal Circuit’s appr oach in Link Snacks. 7 As in the case of Link Snacks, a subheading consis ting of only “descriptive terms” is to be read as an eo nomine provision when the operati ve question focuses on th e terms describing an article. See 742 F.3d at 966. Justas a tariff subheading contai ning only the words “[c]ured or pickled” constitutes an eo nomine provision b ecause 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 provision s are either eo nomine or by use.” Pl.’s Supp. Q. Resp. at 1. In contrast, the Government onl y submits that it is not an eo nomine provision. See, e.g., Def.’s Supp. Q. Resp. at 1–2. The Gove rnment does not address whether the provision is a use provision, or if there is indeed such a dichotomy under th e HTSUS. See id.; Def.’s Br; Def.’s Reply; Def.’s OAQ Resp. Recent Federal Circuit opinions in struct 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 (Fe d. Cir. 2020) (“Ther e are two types of HTSUS headings, eo nomine [and] use provisions.” (alteration in original)). In determining whethe r a provision is eo nomine, the court must focus on the “operative question” of wh ether the merchandise “qualifies as . . . items that are expressly named and cove red by [the relevant] HTSU S 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 ar ticle,” 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 dedi cated. As such, the key inquiry posed by the language of subhead ing 0604.90.30 is whether the item quali fies as such “dried or bleached” items. Therefore, under the eo nomine–us e 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,” co nstitutes 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 cla ssification of the pro ducts in Category One. The Government argues that because the items are dy ed or glittered or further decora ted 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 conte nds that the basket provision of subheading 0604.90.60 is the only appropriate classi fication for the products at i ssue, 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 nomin e designation, the items are transformed with features substantially in excess of those within the comm on meaning of the terms “dried” and “bleached.” Def.’s OAQ Resp. at 3. Second Nature responds th at 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 representa tive samples within Category One are “dried” products, Joint SOF ¶¶ 7–9, c onsisting of foliage, branch es or other parts of plants, without flower buds, or grasses, mosses or lichens, that have glitter or another co ating applied to their exterior, and/or have been dyed, id. ¶ 6. However, it is also undisputed that th e 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 merc handise currently in dispute, only two styles within Category Seven contain such bleached com ponents, id. ¶¶ 29, 32, with the remainder of bleached items found in Category Eight, id. ¶¶ 35, 40. Following the approach of Link Snacks, the cour t determines that the subject merchandise is described, eo nomine, by subheading 0604.90.30 as “dried” foliage, branches, or other parts ofCourt No. 17-00271 Page 20 plants, without flower buds, or grasses, mosses or lichens. The only in quiry of this eo nomine designation is whether or not the item has been dried. The styles of Categor y One have all been dried. Thus, any argument that the further proc esses of dyeing and glit tering affect the product beyond the drying process fails to “overcome the simple and strai ghtforward classification of the subject merchandise” as dried produ cts. 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 th e common meaning of bleached goods. However, as noted supra p. 19, the merc handise in Categories On e through Six contain only items that were, and remain, dried. S ubheading 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 mercha ndise from the simple cl assification provided in subheading 0604.90.30. Second, the Government raises a syntactic po int on the use of the word “dyed” in the superior heading to argue that th e “dried or bleached” subheading onl y covers items that have been merely dried, and not items that have been dried and further “dyed and/or bl eached.” Def.’s Reply at 12; Def.’s OAQ Resp. at 5–6. Th e Government’s position is base d 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 Dicti onary Online. Def.’s Reply at 4–6; Def.’s OAQ Resp. at 6. Based on this definition, the Government argu es 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 offeredCourt No. 17-00271 Page 21

definitions do not necessitate su ch a reading. Subheading 0604.90 could easily be read as “dried, dyed, bleached, impregnate d, 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 th e 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 Th ree consist of thin flat stri ps of a plant of the Calamus genus that are dried, dyed, and/or glittered, and “shaped di rectly into decorative curls.” Joint SOF ¶ 15. The parties present “Item No. 01694, Ca ne Spring Red Glitter—Bulk Pack” as a representative style for the merchandis e 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 shap e from plaiting materials or made up from articles of heading 4601 . . . : Of vegetable ma terials: Of rattan: Other: Other,” Def.’s Br. at 25 (internal quotati on marks omitted), following the “rel ative specificity ” rule of GRI 3(a). Id. at 26–27. The Government further argues that items curledinto shape are covered by the “other articles, made directly to shape from plai ting materials” language within heading 4602. Id. Thus, by the application of the re lative 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 trea tment 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 subh eading 0604.90.60 “meaningle ss” 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 th e arguments and briefing, the c ourt is not pers uaded that the structure of the tariff provisions necessitates th e 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 li mited by interpretive canons and that (2) the calamus st rips are not plaiting materials c onstituting articl es of Heading 4601, nor do the strips constitute “made up” articles. Pl.’s Re ply at 12–13. Thus, according to Second Nature, only heading 0604 is prima faci e applicable, and subheading 0604.90.30 remains the proper classification for the merchandise with in this category. Id. Headings 4601 and 4602 read in relevant part: 4601 Plaits and similar product s of plaiting materials, whether or not assembled into strips; plaiting materials, plaits a nd similar products of plaiting materials, bound together in parallel strands or wove n, in sheet form, whether or not being finished articles (for exam ple, mats, matting, screens):

. . . . . 4602 Basketwork, wickerwork and other ar ticles, 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, interlac ing or similar processes; it includes straw, osier or willow, bamboos, rattans, rushes, reeds, st rips of wood, strips of other vegetable material (for example, stri ps of bark, narrow leaves and raffia or other strips obtained from broad leaves), unspun natural textile fibe rs, monofilamen t and strip and the like of plastics and st rips 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 th e 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. Seco nd 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 Re ply at 13–14. The Govern ment argues that the language does not contain any such limitation or re quirement pertaining to we aving or interlacing, and thus such requirements are unne cessary. Def.’s OAQ Resp. at 7. While canons of construction are certainly valu able 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.” Germai n, 503 U.S. at 253; accord Robert A. Katzmann, Judging Statutes 29 (2 014) (“When statutes are unambig uous . . . , the inquiry for a court generally ends with an examina tion 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 pl aiting materials or made up from articles of heading 4601.” The Government argues that because th e other articles are limi ted to those articles “made directly to shape from plaiting materials,” and because the curled pieces of th e 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 notCourt 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 cu rled 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 Inte rpretation, the Meaning of “Other Articles, Made Directly to Shape” Requires Weaving or Interlacing Resolving this ambiguity requires the court to first consider c ontext 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 vac uum, 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 thei r place in the overall statutory sche me.” BMW of N. Am. LLC v. United States, 926 F.3d 1291, 1299 (Fed. Cir. 2019) (quoti ng King v. Burwell, 576 U.S. 473, 486 (2015)). “Generally, the HTSUS is not designed so that th e 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 headi ngs, the Government’s suggested reading of heading 4602 is overbroad. The Government ar gues that because the merchandise is “shaped directly into decorative curls,” it aligns with the language of h eading 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 wh atsoever would be classified under heading 4602 as long as that item is made of plaiting materials. Def.’s Br. at 28 (citing HTSU S, ch. 46 n.1). Plaiting materials include not only “strips of other vegetable mate rial” but also “unspun natural textile fibers, monofilament and strip and the like of plastics and strips of pape r.” HTSUS, ch. 46 n.1. Such aCourt No. 17-00271 Page 25 broad interpretation would lead to an anomalous result with resp ect to the scope of not just headings 0604 and 4602, but also several other h eadings 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 Orga nization’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)). “Alt hough not binding, where a tariff term is ambiguous the Explanatory Notes ma y provide persuasive and clear ly relevant gu idance to the meaning of the term.” Id. (emphasis a dded) (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 article s (headings 46.01 and 46.02) made by interlacing, weaving or by s imilar methods of assembling unspun materials . . . . As described in the EN, the chapter is intended to include certain semi-m anufactured products and certain articles made by interlacing, weaving, or s imilar method of assembli ng unspun materials. Considering this language in the EN, the court find s that Government’s sugg ested reading of “other articles, made directly to shape from plaiting materials” is overinclu sive. Heading 4602 is formulated in a way that captures items of bask etwork, wickerwork, and other articles involving methods such as interlacing, weaving, or other simil ar 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, unambiguou s expression of legislative inte nt is inapposite here, when the tariff provision in question “is am biguous standing alone.” See id. (emphasis inoriginal).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 Preclud e Summary Judgment as to Categories Four and Five In a tariff classification dispute, summary judg ment is appropriate only when “there is no genuine dispute as to the nature of the merchand ise and the classification determination turns on the proper meaning and scope of the relevant tari ff provisions.” Decker s 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 merc handise, id., or regard ing “exactly what the merchandise is,” id. (quoting Ba usch & Lomb, 148 F.3d at 1365), precludes a grant of summary judgment. At summary j udgment, “the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determ ine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249; see also Ford Moto r Co. v. United States, 157 F.3d 849, 854 (Fed. Cir. 1998). In ascertaining whether a genuine issue of ma terial 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 CI T __, __, 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 merchand ise in Category Three, the parties do not dispute that the styles in Cate gory 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 weav ing 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 wi ckerwork, as opposed to the Government’s preferred classification of subheading 4602.19.45. Li kewise, 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 classi fication of subheading 4602.19.80. In both cases, the key issue is whether the items qualify as wickerwork. The Government argues that th e common meaning of wickerwork requires that the items be made of “vegetable twigs and ro ds, in contrast to strips, filame nts, etc.,” with twigs and rods consistently held in Customs’s practice as ha ving “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 th at the items in Categories Four and Five are made of “thin flat strips,” Joint SOF ¶¶ 17–20, th e items are made of strips and filaments and cannot be classified as wickerwork . In contrast, Second Nature argu es that the products at issue consist of “twigs, osiers or the like plaited togeth er,” Pl.’s Reply at 16 (citation omitted), and that

10 Second Nature originally submitte d that the items in Category Five are “not plaited—that is they are not braided.” Pl.’s Br. at18 (internal quotation marks o mitted); 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 cl assification in Heading 4602, HTSUS . . . .” Pl.’s Post-A rg. Br. at 2 (emphasis in original).

11 By Second Nature’s own preferred definition, plai ting is defined as “the interlacing of strands: BRAIDING.” See Pl.’s Br. at 17 (first emphas is added). Second Na ture 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, an d 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 notrequire the items to be cylindrical, id. Assuming arguendo that Government’s definiti on of the common mean ing 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 comple tely round. Further, in reviewing the submitted evidence, the court finds th at there is a genuine issue of materi al fact as to th e salient physical characteristic of the merchandise: whether the it ems within Category Four and Category Five are composed of twigs and the like, or whether they are made of strips, fi laments, and the like. The Government avers that the description and photographs in the Join t SOF “clearly show that the article is made directly to shape from plaiting materi als” 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. Cor p., 872 F.2d at 1578 (“[T]he merchandi se 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 gene rally 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 unde r subheading 4602.19.60 as wick erwork in Category Eight, is inconsistent with its position that the st yles 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 dogba ne plant of the Apocynum genus, which is a vegetable material other than willow or wood, with a round cross-sec tion, plaited into the shape of a star and impaled on a wooden stick. Joint SOF ¶¶ 27, 36. Per the Gove rnment, 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 phy sical sample of the “lata star” component alongsi de the “kambuCourt 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 tw o 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-s ections and may reasonably conc lude 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 whos e motion is under consideration, the court finds genuine issues of material fact remain as to eachmotion. Again, “the judge’s f unction” at the summary judgment stage “is not himself to weigh the evidence and dete rmine the truth of the matter but to determine whether there is a genuine issue for trial.” A nderson, 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 woul d 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 co urt in International Fashions v. United States, when an article’s relevant characteristics are not a pparent from a layperson’s visual ex amination of an exhibit, it is the movant’s responsibility to “adduce testimon ial evidence from persons familiar” with the merchandise. 78 Cust. Ct. 153, 155 (1977). In e ssence, the parties here seek a factual determination of whether the pieces of willo w or dogbane plant may constitute materials of wickerwork or other materials, based on stat ements 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 st age based on the record before it.Court No. 17-00271 Page 30 F.3d at 1371. Thus, summary judgment for either pa rty on this issue is impr oper 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 Govern ment proposes an alternative classification under subheading 6702.90.65 as artificia l flowers or fruit. Second Na ture 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 representativ e samples of artificial fruit do not resemble the actual fruit because of the di fference in size and because they are placed on a stick. The court finds Second Nature’s ar guments 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 c ourt 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 of fered by Second Nature do not support its synecdochic proposition that the materials comprisi ng an artificial flower must themselves be

13 Especially in a case such as this, where th e 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 Char les Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2720 (4th ed. 2023) (“[A] part y 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 moti ons must be denied.” Ma rriott Int’l, 586 F.3d at 969.Court No. 17-00271 Page 31

artificial to warrant “artificia l” classification for the whole. 14 Further, as noted by the Government during oral argument, subhead ing 6702.90.10 lists “feathers,” by no means exclusively a manmade item, as a possible mate rial for artificial flowers. 15 The cases of the predecessor court also support this conclusion. As Second Nature itself notes, the predecessor court held un der the former tariff provision that artificial flowers can be made using dried plant parts. Pl.’s Reply at 21 (citing Terra Fi rma Sales Corp. v. United States, 84 Cust. Ct. 54, 55 (1980)). In Terra Firma, the me rchandise at issue consis ted of parts of dried plants which had been glued togeth er to form a flower and then attached to a wrapped wire stem. 84 Cust. Ct at 55. The importer argued that artif icial flowers must be composed of artificial substances, and the predecesso r court held as follows: [I]n the opinion of the court, the artificiality of artificial flowers resides in the manner of their creation and notin the synthetic nature of their components. An artificial flower is a flower whose body was not creat ed 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 natura l plants was not one of the princip[al] concerns of the legislators. There is no indication that su ch products were not to be considered artificial.

14 Neither one of Second Nature’s dictionary definiti ons of “artificial” support its argument. Pl.’s OAQ Resp. at 9. First, the Merriam-Webster Online Dictionary defines “art ificial” as “humanly contrived, often on a natural model.” Artifi cial, Merriam-Webster, https://www.merriamwebster.com/dictionary/artificial (last updated Sept. 11, 2023). Under that definition, an “artificial flower” would be a humanly-contri ved flower, often on a natural m odel. 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 s econd definition, the term “artificial flower” is a flower that is not natura l or real, or a flower th at is made, produced, or don e 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, whic h excludes “artificial flowers, foliage or fruit of . . . wood or other mate rials, obtained in one piece . . .” The fact that such artificial flowers of wood, a naturally occurr ing ingredient, were explicitly excluded suggests that the common meaning of artificial flower s 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 me tal.” 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 exhib it truly represents any natural flower, fruit, leaf, or stem. Nevertheless, both come within the tariff designation of “artific ial and ornamental fruits, grains, leaves, flowers, and stems, ” inasmuch as they are articles which simulate the natural fruit, fl ower, leaf, or stem in its physical characteristics and appearance sufficiently to cau se them in common understand ing 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 th e 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 “a rtificial flowers” cannot be read as requiring that the articles consist solely of ma n-made materials.
B. The Merchandise Falls Within th e Common Meaning of Artificial Flowers or Fruit
The court turns to Second Nature’s second conten tion, which is that certain articles at issue would not be considered a flower or fruit based solely on thei r 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 ma y resemble a flower in appearance. Pl.’s OAQ Resp. at 9. Second Natu re makes distinctions only as to Exhibit No. 10, “Item No. 3229, Pumpkins—Stemmed Orange—Cons umer Pack”; and Exhibit No. 11, “ItemCourt 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,” th e 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 b ecause “berries are not mounted on a stick.” Id. Whether Second Nature takes issu e with the disparity in size between the samp les and real fruit or the fact that both sa mples are mounted on a stick, se e Pl.’s OAQ Resp. at 10–11, neither distinction is compelling. In both appearance and size, the rele vant representative samples, Exhibit No. 10, “Item No. 3229, Pumpkins —Stemmed Orange—Consumer Pack” and Exhibit No. 11, “Item No. 00696, Sola Berries Re d Glitter—Consumer Pack,” ma y reasonably be regarded as artificial fruit in common understanding. 16 Further, even if the ar ticles are mounte d on a stick,

16 In United States v. Dieckerhoff, Raffloer & C o., 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 fo r decoration are often miniature va rieties of a similar size. The berries in the sample are also not significan tly different in size from natural berries. Further, as noted in Cochran, there is no requi rement 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 artic le “looks enough like a flow er (real or imaginary) to be regarded as an artificial flower [or fru it] ‘in common understandin g.’” 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 HTSU S heading 6702, which encompasses “articles made of artificial flowers, foliage or fruit.” Accordingly, the court determines that the me rchandise within Categor y 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 pr oper subheading for classification of the merchandise.
VI. Genuine Issues of Material Fact Precl ude Summary Judgment as to Category Seven
A. The GRIs Are Applied in Numerical Order The Government argues that even if the s ubject merchandise within this category are properly described in Heading 0604, the bouquets a nd mixtures also contain items described under other headings, and thus the c ourt 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 probl em 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 classifi cation 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 thatthe 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 c over the article. Orlando Food, 140 F.3d at 1440. GRI 1 provides that “c lassification shall be determined according to the terms of the headings and any relative secti on or chapter notes.” GRI 1, HTSUS (2015) (emphasis added). “We apply GRI 1 as a substantive rule of interpre tation, such that when an imported article is described in whole by a single classification headi ng or subheading, then that single classificationCourt No. 17-00271 Page 35 applies, and the succeeding GRIs are inoperative.” Rubies Costum e Co. v. United States, 922 F.3d 1337, 1342 (Fed. Cir. 2019) (citation o mitted). “The Chapter Notes ar e an integral part of the HTSUS, and have the same legal force as the text of the headi ngs.” 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 statut ory 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 mercha ndise is determined to be cl assifiable 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 th at the GRIs apply in numerical order; the interp retation of chapter notes is paramount when evaluating cl assification 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 histor y . . . and case law is that GRI 1 is paramount. [GRI 1] provide s in relevant part, “classification shall be determined according to the terms of the headings a nd 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 consid ered in numerical order. The headings and relevant notes are to be exhausted before inqui ries, such as those of GRI 3, are considered, e .g., specificity or es sential character. The HTSUS is designed so that most classification ques tions 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 quo tation marks omitted)).
B. Genuine Issues of Material Fact Re main as to the Nature of the Merchandise The Government’s other argu ment is that Note 2 to Chapter 6 cannot resolve the classification issue because of the nature of the merchandise. Thus the G overnment implies that application of GRI 1 does not solv e the issue, necessitating applica tion of the subsequent GRIs. In the Government’s words, “Not e 2 does not obviate the need for an essential character analysis under GRI 3(b) for composite styl es, when such bouquets consist in part of components that, if imported separately, would be cla ssified under different tariff prov isions.” Def.’s Br. at 50 (emphasis added). The Government contends th at because the goods all contain components that the parties agree would be classifi ed under different tariff provisi ons, id. at 44, and further because those components are not mere accessories, the merc handise 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 cl assification issu e. 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] reso rt 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, accordi ng to Second Nature, “m ixtures in the formCourt 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 bask ets, wreaths and sim ilar articles made wholly or partly of goods of that kind, account not being taken of accessories of other materials. However, these headi ngs 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 otherwis e, the record shows pr onounced disagreement on th e question of whether (1) the items are bouqu ets and similar articles c ontaining only dried or bleached plant parts of subheading 0604.90.30, or (2) th e items are prima facie classifiab le 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 s ubheading 4602.19.60, HTSUS. Def.’s Br. at 46, 48; Joint SOF ¶¶ 28, 31. That classifi cation contrasts with Second Natu re’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 Sec ond Nature does not agree with the Government’s characterization). Further, in response to the Government’s argum ents 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,” an d disregards “accessories .” Pl.’s OAQ Resp. at 3. But the focus of Second Nature’s arguments has been on the b ouquet products. See, e.g., Pl.’s OAQ Resp. at 12Court No. 17-00271 Page 38 (“Note 2 to Chapter 6 specifically governs the classification of bouque ts 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 sim ilar articles” that contain “only dried or bleached plant parts of subheading 0604.90.30.” 18 Further, Second Nature does no t address how this item factually supports its legal argument “that when two or more products cove red by the same tariff provision are imported together, they do not constitute a ‘ mixture.’” Pl.’s Post-A rg. Br. at 4 (emphasis added); see also Pl.’s Supp. Q. Re sp. 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 ot her than heading 0604 also leads to a genuine issu e of material fact. 19 Indeed, the Government s uggests that it does not know

18 By the parties’ submission of uncontroverted fact, thatstyle consists of ball-shaped items, twothirds of which consist of “root balls” properly classified unde r subheading 4602.19.60 if individually imported. Id. ¶¶ 30, 31. The other co mponents are the artifici al 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 Jo int SOF ¶ 30; Joint Cert. Ex. at 2; Exhibit No. 14. Second Nature does not adequately address why th is style, representati ve of the merchandise within Category Seven, fi ts its description of “al l or most of the items in a bouquet [that], if individually imported, would be classified unde r the same HTS item, 0604.90.30.” Pl.’s Post-Arg. Br. at 4.

19 Not only is the Government’s f actual claim missing from the formal Joint SOF, but it is also in contention with the samples that the parties pr ovided. Specifically, a factfinder may reasonably conclude that “Item No. 03347, Pa nchu Bouquet,” does not contain at least one item classified outside of Heading 0604, and the Government has fa iled to identify such an item on the recordCourt 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 dem onstrated 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 regardi ng the salient physical characteristics of the individual components constituting Category Seven items. See Deckers Outdoor, 714 F.3d at 1371They dispute whether th e merchandise comprises only items properly classified under heading 0604, or whether certain items may fall under a differe nt heading. This dispute, in turn, implicates addi tional genuine issues of material fact about whether those items can be characterized as accessories to the pr imary 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 Out door, 714 F.3d at 1371, and this actio n may not be resolved on summary judgment. Again, “[t]he fact that both parties have m oved for summary judgment does not mean that the court must grant judgment as a matter of law fo r 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 SO F ¶ 32; Def.’s Supp. Q. Resp. at 2. Instead, the Government now claims th at 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 ca tegorically determine that all merchandise within Category Seven may be prope rly classified under subhead ing 0604.90.30, Pl.’s Br. at 19–21, by focusing on specific samples wi thout explaining why the “P umpkin/Root Ball Mix Orange— Jumbo Bag,” a sample representing the style of seve ral 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 Categor y Seven must be resolved under GRI 3, without establishing the factual basis for that claim, i.e., that at leas t one component of each item in Category Seven is classifiable unde r a heading other than heading 0604.Court No. 17-00271 Page 40

each instance to draw all reasonable infere nces against the party whose motion is under consideration.” Id. “To the extent there is a ge nuine issue of material fa ct, both motions must be denied.” Marriott Int’l, 586 F.3d at 969. Accordingly, both motions ar e denied with respect to the classification of the items described in Cate gory Seven at this stag e 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 an d 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 th e 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 cour t; and it is further
ORDERED that, insofar as the moti ons do not pertain to the merchandise identified in Categories One, Two, Three, Six, and Eight, Se cond Nature’s Motion fo r 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 propos ed scheduling order should provide for any discov ery, includingCourt No. 17-00271 Page 41 written discovery and depositions, that may be nece ssary 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