from the United States Court of International Trade in No.
1:11-cv-00238-MAB, Judge Mark A. Barnett.
J. Gluck, Simon Gluck & Kane LLP, New York, NY, argued
represented by Christopher M. Kane, Mariana del Rio
Beverly A. Farrell, International Trade Field Office,
Commercial Litigation Branch, Civil Division, United States
Department of Justice, New York, NY, argued for
represented by Chad A. Readler, Robert E. Kirschman, Jr.,
Jeanne E. Davidson, Amy Rubin; Sheryl French, Office of the
Assistant Chief Counsel, United States Bureau of Cus- toms
and Border Protection, United States Department of Homeland
Security, New York, NY.
Taranto, Clevenger, and Chen, Circuit Judges.
CLEVENGER, CIRCUIT JUDGE.
US, LLC ("WWRD") appeals the United States Court of
International Trade's ("CIT") final decision
denying WWRD's motion for summary judgment and granting
the Government's cross-motion for summary judgment. In
doing so, the CIT agreed with the U.S. Customs and Border
Patrol's ("CBP") classification of WWRD's
subject imports, finding the articles were not eligible for
duty-free treatment. WWRD U.S., LLC v. United
States, 211 F.Supp.3d 1365 (Ct. Int'l Trade 2017).
October 2009 and February 2010, WWRD imported a series of
decorative ceramic plates and mugs from its "Old Britain
Castles" dinnerware collections; decorative ceramic
plates and gravy boats from its "His Majesty"
dinnerware collection; and crystal flutes, punch bowls, and
hurricane lamps from its "12 Days of Christmas"
collection. All of the subject imports had festive motifs,
such as Christmas trees, hollies, or turkeys, and were
intended to be used during Thanksgiving or Christmas dinner.
Upon arrival in the United States, the CBP classified the
articles based on their constituent materials, placing the
various goods in subheadings 6912.00.39,  7013.22.50,
7013.41.50, and 9405.50.40 of the Harmonized Tariff Schedule
of the United States ("HTSUS"). WWRD filed multiple
protests, arguing the articles should be classified in
9817.95.01, a duty-free subsection of the HTSUS covering
certain festive goods. Specifically, HTSUS 9817.95.01
provides duty-free status for "[a]rticles classifiable
in subheadings 3924.10, 3926.90, 6307.90, 6911.10, 6912.00,
7013.22, 7013.28, 7013.41, 7013.49, 9405.20, 9405.40, or
9405.50, the foregoing meeting the descriptions set forth
below: Utilitarian articles of a kind used in the home in the
performance of specific religious or cultural ritual
celebrations for religious or cultural holidays, or religious
festive occasions, such as Seder plates, blessing cups,
menorahs or kinaras." After the CBP denied WWRD's
protests, WWRD filed a complaint with the CIT, challenging
the denials. WWRD argued that Thanksgiving and Christmas
dinners are specific cultural ritual celebrations, its
articles are used in the performance of such celebrations,
and thus its articles belong in HSTUS 9817.95.01.
presented with cross-motions for summary judgment, the trial
court began by discussing the history of subheading
9817.95.01. Specifically, the court noted that, before the
creation of subheading 9817.95.01, utilitarian items
associated with holiday or festive occasions were classified
within Chapter 95, under heading 9505. This heading provided
broad duty-free coverage for "[f]estive, carnival or
other entertainment articles, " as interpreted by our
line of cases beginning with Midwest of Cannon Falls,
Inc. v. United States, 122 F.3d 1423 (Fed. Cir. 1997).
However, in 2007, Chapter 95 was amended to add Note 1(v),
which removed "[t]ableware, kitchenware, toilet
articles, carpets, and other textile floor coverings,
apparel, bed linen, table linen, toilet linen, kitchen linen
and similar articles having a utilitarian function
(classified according to their constituent material)"
from the scope of Chapter 95. But Note 1(v) also referred to
subheadings 9817.95.01 and 9817.95.05,  which provided
duty-free status to a select subset of articles that would
have lost such status under the Note. Thus, while many
festive utilitarian articles are no longer eligible for
duty-free status, those used "in the performance of
specific religious or cultural ritual celebrations" are
parties disputed only whether WWRD's subject imports are
used "in the performance of specific religious or
cultural ritual celebrations, " and therefore the trial
court set about defining the scope of this phrase in
subheading 9817.95.01. In assessing the phrase, the CIT
analyzed the text of the subheading using the General Rules
of Interpretation ("GRI"). But because the section
and chapter of the HTSUS did not assist in defining the
phrase, the court gave the terms in the subheading their
ordinary meaning, with specific focus on the word
court concluded that Thanksgiving and Christmas are cultural
holidays, and the associated dinners are cultural
celebrations, but not specific rituals. The court found that
"rituals generally encompass specific scripted acts or
series of acts that are customarily performed in an often
formal or solemn manner." WWRD, 211 F.Supp.3d
at 1375. While these dinners occur annually during religious
or cultural holidays, that alone is not sufficient; the
dinners themselves lack specific formal or solemn acts.
See id. ("[I]f subheading 9817.95.01 was
intended to cover utilitarian items used in the home during
religious or cultural celebrations, whenever they routinely
occur, and whatever they might entail, the term
'ritual' could have been omitted altogether.").
trial court then turned to the exemplars provided in the
subheading - the Seder plates, blessing cups, menorahs or
kinaras. Under the statutory construction rule of ejusdem
generis ("of the same kind"), the trial court
reasoned that the subject imports must "possess the
essential characteristics or purposes that unite the
[example] articles enumerated . . . ." Id. at
1376 (quoting Sports Graphics, Inc. v. United
States, 24 F.3d 1390, 1392 (Fed. Cir. 1994)). The court
distinguished the exemplars, which served specific purposes
to advance their respective rituals, from the subject
imports, which were "merely decorative items used to
serve food and beverages or provide lighting."