Slip Op. 03-122

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: RICHARD W. GOLDBERG, SENIOR JUDGE

RUSS BERRIE & COMPANY, INC.,

 Plaintiff,

 v.

UNITED STATES,

 Defendant.

 Court No. 00-00018

 

 

[Summary judgment for plaintiff.]

Dated: September 17, 2003

Serko & Simon, LLP (Joel Kenneth Simon) for plaintiff Russ

Berrie & Company, Inc.

Peter D. Keisler, Assistant Attorney General, John J. Mahon,

Acting Attorney in Charge, International Trade Field Office,

Commercial Litigation Branch, Civil Division, United States

Department of Justice (Mikki Graves Walser); Office of the

Assistant Chief Counsel, International Trade Litigation, United

States Bureau of Customs and Border Protection (Beth C. Brotman),

Of Counsel, for defendant United States.

OPINION

GOLDBERG, Senior Judge: This matter is before the Court on

plaintiff’s motion for summary judgment and defendant’s crossmotion for summary judgment pursuant to USCIT R. 56. It involves

the proper classification of earrings and pins portraying motifs

associated with Christmas and Halloween. The case requires the

Court to interpret the scope of the term “festive articles” as it
Court No. 00-00018 Page 2

1 It has since become the U.S. Bureau of Customs and Border

Protection per the Homeland Security Act of 2002, § 1502, Pub. L.

No. 107-296, 116 Stat. 2135, 2308-09 (Nov. 25, 2002), and the

Reorganization Plan Modification for the Department of Homeland

Security, H.R. Doc. 108-32, p. 4 (Feb. 4, 2003).

appears in heading 9505 of the Harmonized Tariff Schedules of the

United States (“HTSUS”) and determine the relationship between

Chapters 95 and 71 of the HTSUS. 

For the reasons that follow, the Court finds in favor of the

plaintiff and grants plaintiff’s motion for summary judgment. 

Defendant’s cross-motion for summary judgment is denied. The

Court exercises jurisdiction pursuant to 28 U.S.C. § 1581(a)

(1994).

I. BACKGROUND

Russ Berrie & Company, Inc. (“Russ Berrie”) imports consumer

gift products. The subject merchandise at issue in this case

consists of three varieties of earrings and one set of pins. All

of the items involved depict holiday symbols; the pins and two of

the earring sets contain Christmas themes, the remaining earring

set contains Halloween themes. The items were advertised in

seasonal Russ Berrie catalogues, and were distributed to be

displayed and sold for the appropriate holiday season. 

The items in question entered the United States between

April 1998 and July 1998. The U.S. Customs Service1 (“Customs”)

classified the items at liquidation under heading 7117, HTSUS
Court No. 00-00018 Page 3

(under subheadings 7117.19.90 or 7117.90.90, HTSUS) as “imitation

jewelry” at a duty rate of 11 percent ad valorem. Russ Berrie

protests Customs’ classification, contending that the subject

merchandise should be classified under heading 9505, HTSUS (under

subheadings 9505.10.2500 and 9505.90.6000, HTSUS) as “festive,

carnival or other entertainment articles. . .,” for which there

is no duty. 

II. STANDARD OF REVIEW

A. Summary Judgment and Presumption of Correctness

“Summary judgment is proper ‘if the pleadings show that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.’” 

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.

R. Civ. P. 56). However, “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party,”

summary judgment will not be granted. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). All inferences will be drawn in

favor of the party opposing the motion for summary judgment. 

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

Customs’ tariff classifications are given a presumption of

correctness; an importer before the court has the burden of

refuting any disputed classification. See 28 U.S.C. § 2639(a)(1)

(1994). In analyzing the viability of such a challenge, the

initial Customs classification must be evaluated “both
Court No. 00-00018 Page 4

independently and in comparison with the importers’ proposed

alternative.” Anval Nyby Powder AB v. United States, 20 CIT 608,

611, 927 F. Supp. 463, 467 (1996) (quoting Jarvis Clark Co. v.

United States, 733 F.2d 873, 878, reh’g denied, 739 F.2d 628

(Fed. Cir. 1984)).

B. Judicial deference to Customs’ classification rulings

Customs argues that its interpretation of headings 7117 and

9505, HTSUS in Headquarters Ruling Letters (“HRL”) 961913 and

961933 is entitled to judicial respect proportional to its power

to persuade. See Skidmore v. Swift & Co., 323 U.S. 134 (1944). 

In accordance with Skidmore, the Supreme Court has held that a

classification ruling by Customs may be granted deference on the

basis of “its writer’s thoroughness, logic, and expertness, its

fit with prior interpretations, and any other sources of weight.” 

United States v. Mead Corp., 533 U.S. 218, 235 (2001).

Applying these factors to the subject merchandise in the

instant case, the Court finds that Customs’ classification

rulings are not entitled to Skidmore deference. First, it is

debatable whether Customs gave sufficiently thorough

consideration to HRL 961913 and HRL 961933. Customs does not

claim that the classification rulings were adopted pursuant to a

deliberative notice-and-comment rulemaking process. This is

certainly not dispositive insofar as Skidmore deference is

concerned, but nonetheless may be considered by the Court. In
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addition, Customs’ classification rulings lack thoroughness and

valid reasoning. Neither ruling addresses the operation of

relevant chapter notes in Chapters 71 and 95 pursuant to the

General Rules of Interpretation (“GRI”). As discussed infra,

operation of Chapter 71 Note 3(n) and Chapter 95 Note 2 is

pivotal to the classification of the articles in question. 

Despite a number of letters submitted to the plaintiff during the

ruling process, Customs’ classification rulings fail even to make

note of this line of reasoning. Furthermore, classification of

festive articles has long been the subject of controversy, as

demonstrated by Customs’ repeated efforts to narrow the scope of

Chapter 95. See Plaintiff’s Memorandum of Law in Support of

Plaintiff’s Motion for Summary Judgment, 21-22 (“Pl.’s Mem.”). 

The Court recognizes that “Customs can bring the benefit of

specialized experience to bear on the subtle questions” that are

present in the instant case. Mead, 533 U.S. at 234. However,

for the aforementioned reasons, Customs’ classification rulings

lack the requisite persuasive power to warrant Skidmore

deference.

III. DISCUSSION

A. Customs’ classification as “imitation jewelry” under heading

7117, HTSUS

Customs classified the subject merchandise under heading

7117 as “imitation jewelry.” Customs argues that this heading is
Court No. 00-00018 Page 6

appropriate because it incorporates any small objects of personal

adornment that do not contain pearls, precious metals, or

precious or semiprecious stones. Memorandum in Support of

Defendant’s Opposition to Plaintiff’s Motion for Summary Judgment

and in Support of Defendant’s Cross-Motion for Summary Judgment,

4, 14-15 (“Def.’s Opp.”).

Plaintiff does not dispute that the subject merchandise

falls within the meaning and scope of the statutory definition of

“imitation jewelry” as defined in Notes 9(a) and 11 to Chapter

71. See Defendant’s Additional Statement of Material Facts Not

In Dispute; Plaintiff’s Response to Defendant’s Additional

Statement of Material Facts As To Which There Is No Genuine Issue

To Be Tried, ¶¶ 2, 3.

B. Classification as “festive articles” under heading 9505,

HTSUS

Customs interprets the decisions in Midwest of Cannon Falls,

Inc. v. United States to hold that heading 9505 only applies to

“articles used for amusement and merriment,” or articles used to

decorate the home during holiday festivities. Def.’s Opp. at 28;

see Midwest of Cannon Falls, Inc. v. United States, 20 CIT 123

(1996) (“Midwest I”) aff’d in part, rev’d in part, 122 F.3d 1423

(Fed. Cir 1997) (“Midwest II”). Customs argues that since the

court in Midwest I noted that the articles in question under

heading 9505 were, “principally, if not exclusively, used only
Court No. 00-00018 Page 7

during the holiday season for the specific purpose of decorating

or ornamenting the home or Christmas tree,” only like merchandise

can fit under the same heading. Def.’s Opp. at 27; see also

Midwest I, 20 CIT at 129. Therefore, according to Customs,

because the merchandise at issue is jewelry, which is used for

personal adornment, and not “entertainment” articles or home

decorations, it is not prima facie classifiable under heading

9505. Def.’s Opp. at 20, 28. 

The Court rejects Customs’ argument. In an effort to

maintain consumer flexibility and not limit heading 9505 to

traditional subjects, courts have been hesitant to impose

“extraneous limitations that are not based on the actual language

of the [heading].” Midwest II, 122 F.3d at 1428. Furthermore,

Customs mistakenly intimates that “personal adornment” and

“amusement and merriment” are mutually exclusive labels. Def.’s

Opp. at 28. This is simply untrue, as there is no reason why an

individual item cannot be construed as both. Midwest II, 122

F.3d at 1427 (“[A]ll of the items at issue are used in

celebration of and for entertainment on a joyous holiday, and

they are all prima facie classifiable as ‘festive articles’ under

heading 9505.”).

There are two requirements for finding a prima facie

classification under heading 9505. The merchandise must be (1)

“closely associated” with the applicable holiday, and (2)
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displayed and used only during that holiday. Midwest II, 122

F.3d at 1429. 

An item is “closely associated” if “the physical appearance

of an article is so intrinsically linked to a festive occasion

that its use during other time periods would be aberrant.” Park

B. Smith, Ltd. v. United States, 25 CIT __, Slip Op. 01-63, 6

(May 29, 2001); see also Brookside Veneers, Ltd. v. United

States, 6 Fed. Cir. (T) 121, 125, 847 F.2d 786, 789 (1988). An

item may be deemed closely associated if it incorporates

traditional festive symbols, such as a jack-o’-lantern for

Halloween. Midwest II, 122 F.3d at 1429; see also Springwater

Cookie & Confections, Inc. v. United States, 20 CIT 1192, 1196

(1996) (wax candles embellished with holly sprigs were considered

festive articles linked with Christmas). Another characteristic

indicative of close association is color schemes or patterns in

accordance with the respective holiday. Smith, 25 CIT at __,

Slip Op. 01-63 at 8 (for example, a cloth design labeled

“Christmas Highland” was deemed closely associated with

Christmas, despite no display of Christmas symbols, primarily

because “the colors green and red in combination are closely

associated with the festive association of Christmas.”).

The items in question are closely associated with their

respective holidays. Item # 19005, “Kringle Cuties,” consists of

three earring sets, two with Santa Claus designs and one of a
Court No. 00-00018 Page 9

snowman decorated with holly. The former designs incorporate

Santa Claus, the preeminent modern commercial Christmas symbol. 

The latter design is similar to the candles in Springwater in

that they both display hollies, except that the items in this

case additionally display a snowman. Item # 17347, “Li’l

Frightful Friends,” consists of four earring sets representing

ghosts, jack-o’-lanterns, witches’ heads, and monsters’ heads. 

All of these representations bear a strong traditional linkage to

Halloween. Items # 19054 and # 19055, “Jolly Jingles,” consist

of jingle bell earrings in red, green, and gold balls, decorated

with red or green ribbons. Jingle bells are symbolic of

Christmas. In addition, the color combinations and patterns of

the “Jolly Jingles” earring sets clearly resonate as Christmaslike. Smith, 25 CIT at __, Slip Op. 01-63 at 8.

The second requirement for a prima facie classification

under heading 9505 is that the items be displayed and used only

during the holiday with which they are associated. Midwest II,

122 F.3d at 1429. This analysis mandates balancing two distinct,

but coinciding factors. First, the item in question must be

linked to the respective holiday to such an extent that it would

be unlikely to be displayed at other points during the calendar

year. Smith, 25 CIT at __, Slip Op. 01-63 at 8 (this component

was met because “the design and the colors are so closely

associated with the festive occasion . . . that the design would
Court No. 00-00018 Page 10

likely not be used by a consumer during any other time of the

year.”). Essentially, this element is satisfied if the “close

association” requirement has been met, as has been found in the

instant case. The second factor is that the merchandise in

question must be only marketed and sold during the applicable

season. Id. (“[the subject merchandise] was also shown to have

been designed, marketed and sold for use during festive occasions

and was in fact displayed and used by consumers only during

festive occasions.”). As in Midwest II, the items in the instant

case were designed, marketed, and sold only during their

particular holidays. Midwest II, 122 F.3d at 1429. “Krinkle

Cuties” and “Jolly Jingles” were displayed and available for sale

only in the Russ Berrie Christmas 1998 catalog, and “Li’l

Frightful Friends” was displayed in the 1998 ThanksgivingHalloween catalog. They were all entered into the United States

to be distributed in time for their respective holiday seasons. 

Pl.’s Mem. at 5-7. 

Accordingly, because all of the items in question were

closely associated with the applicable holiday and were only

displayed and used during that holiday, the imports are prima

facie classifiable under heading 9505, HTSUS.

C. Operation of Chapter 71, Note 3(n), HTSUS

The Court holds that Customs’ classification of the

earrings and pins under heading 7117 as imitation jewelry is
Court No. 00-00018 Page 11

prima facie correct, and holds that Russ Berrie’s proposed

classification under heading 9505 as festive articles is also

prima facie correct. To resolve the classification conflict, the

Court looks to the relevant notes in Chapters 71 and 95.

GRI 1 dictates that “for all legal purposes,

classification shall be determined according to the terms of the

headings and any relevant section or chapter notes.” Chapter 71

Note 11 defines “imitation jewelry” as “articles of jewelry. . .

not incorporating natural or cultured pearls, precious or

semiprecious stones (natural, synthetic or reconstructed),

precious metal or metal clad with precious metal.” As noted

supra, the subject merchandise shares the characteristics of

imitation jewelry as defined in Chapter 71. However, the Court

finds that Chapter 71 Note 3(n) excludes the subject merchandise

that is prima facie classifiable under heading 9505 and

referenced in Chapter 95 Note 2. Note 3(n) to Chapter 71 states

that the chapter does not cover “Articles covered in note 2 to

chapter 95.” Note 2 to Chapter 95 provides: “This chapter

includes articles in which natural or cultured pearls, precious

or semiprecious stones (natural, synthetic or reconstructed),

precious metal or metal clad with precious metal constitute only

minor constituents.” The parties agree that the articles at

issue consist of earrings and pins which do not incorporate

natural or cultured pearls, precious or semiprecious stones, or
Court No. 00-00018 Page 12

precious metal or metal clad with precious metals. See

Plaintiff’s Statement of Material Facts as to Which There Is No

Genuine Issue To Be Tried (“Pl.’s Statement”) and Defendant’s

Response to Pl.’s Statement, ¶¶ 15, 16. Customs contends that

since the earrings and pins at issue do not contain the elements

listed in Chapter 95 Note 2 as minor constituents, they are not

covered by Chapter 95 Note 2 and thus cannot be excluded from

classification under heading 7117 by operation of Chapter 71 Note

3(n). The Court rejects this argument as it is clear that

articles of jewelry having no precious stones are not necessarily

classifiable in Chapter 71. The operation of the chapter notes

in the instant case parallels the Federal Circuit’s analysis of

Note 2(ij) to Chapter 95 in Midwest II. See 122 F. 3d at 1429. 

Accordingly, the Court finds the subject merchandise is properly

classified under heading 9505 by operation of Note 3(n) to

Chapter 71, which excludes articles covered by Note 2 to Chapter

95. 

III. CONCLUSION

For the aforementioned reasons, Customs erred in its

classification of the merchandise incorporating festive symbols,

color schemes, and patterns because operation of Chapter 71, Note

3(n), HTSUS compels Customs to classify these items as festive

articles under heading 9505, HTSUS.
Court No. 00-00018 Page 13

Accordingly, plaintiff’s motion for summary judgment is

granted and defendant’s cross-motion for summary judgment is

denied. Judgment for the plaintiff will be entered accordingly. 

_________________________________

Richard W. Goldberg

Senior Judge

Date: September 17, 2003

New York, New York
ERRATUM

Russ Berrie & Company, Inc. v. United States, Court No. 00-00018,

Slip Op. 03-122, issued September 17, 2003.

• On page 1, the identification of plaintiff’s counsel should

read: “Serko & Simon, LLP (Joel Kenneth Simon and Despina

Keegan) for plaintiff Russ Berrie & Company, Inc.”