03-28409. Notice of a Decision of the United States Court of Appeals for the Federal Circuit Reversing the Decision of the Court of International Trade To Sustain a Domestic Party Petition Concerning the Classification of Textile Costumes

AGENCY:

Customs and Border Protection, Department of Homeland Security.

ACTION:

Notice of the decision of the United States Court of Appeals for the Federal Circuit in the matter of Rubie's Costume Company v. United States, Appeal No. 02-1373 (decided August 1, 2003), reversing the decision of the Court of International Trade which sustained a domestic party petition seeking classification of textile costumes as wearing apparel of chapters 61 or 62 of the Harmonized Tariff Schedule of the United States (HTSUS).

SUMMARY:

On August 1, 2003, the United States Court of Appeals for the Federal Circuit (CAFC) issued its decision in the matter of Rubie's Costume Company v. United States, Appeal No. 02-1373, reversing the Court of International Trade (CIT) in Rubie's Costume Company v. United States, 196 F. Supp 2d 1320 (Ct. Int'l Trade 2002). The CIT had ruled that the textile costumes before it were “fancy dress” of textile and therefore classifiable as wearing apparel of chapter 61, HTSUS. In reversing the CIT, the CAFC upheld the earlier classification determination of Customs and Border Protection (CBP), which classified textile costumes of a flimsy nature and construction, lacking in durability, and generally recognized as not being normal articles of apparel, as “festive articles” of chapter 95, HTSUS. This document provides notice of the CAFC decision and informs the public that imported textile costumes, which CBP determines to be of a flimsy nature and construction, lacking in durability and generally recognized as not being normal articles of wearing apparel, are to be classified and assessed duty in accordance with the CAFC decision as “festive articles” of chapter 95, HTSUS.

EFFECTIVE DATE:

CBP began liquidating suspended entries and classifying incoming entries of merchandise in accord with the decision in the matter of Rubie's Costume Company v. United States as of October 31, 2003.

FOR FURTHER INFORMATION CONTACT:

For questions regarding operational issues, contact Janet Labuda, Textile Enforcement and Operations Division, Office of Field Operations, 202-927-0414; for legal questions, contact Rebecca Hollaway, Textiles Branch, Office of Regulations and Rulings, 202-572-8814.

SUPPLEMENTARY INFORMATION:

Background

On February 19, 2002, the Court of International Trade (CIT) issued a decision in Rubie's Costume Company v. United States, 196 F. Supp 2d 1320 (Ct. Int'l Trade 2002), in which the court ruled that certain imported textile costumes before it were classifiable as wearing apparel of chapter 61 of the Harmonized Tariff Schedule of the United States (HTSUS). The decision sustained the position of a domestic interested party under the provisions of section 516, Tariff Act of 1930, as amended (19 U.S.C. 1516). Pursuant to 19 U.S.C. 1516(f) and 19 CFR 175.31, CBP published notice of the court's decision in the Federal Register, 67 FR 9504, on March 1, 2002, and notified the public that, effective the day after publication of the notice in the Federal Register, CBP would classify merchandise of the character of the merchandise at issue, which was entered for consumption or withdrawn from warehouse for consumption, in accordance with the court's decision. See “Notice of Decision of the United States Court of International Trade Sustaining Domestic Interested Party Petition Concerning Classification of Textile Costumes,” 67 FR 9504 (March 1, 2002) for detailed background of the domestic interested party petition.

On August 1, 2003, the Court of Appeals for the Federal Circuit (CAFC) reversed the decision of the CIT. The court held that the CBP classification ruling on the textile costumes at issue is persuasive and must be granted deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944). The court concluded that “textile costumes of a flimsy nature and construction, lacking in durability, and generally recognized as not being normal articles of apparel, are classifiable as ‘festive articles.’ ” The court reversed the decision of the CIT holding the merchandise at issue to be classifiable as “wearing apparel.” (The court's decision may be viewed on the court's Web site at http://www.fedcir.gov).

Under 19 CFR 175.31, CBP is not required to publish notice to the public of a decision of the CAFC reversing a cause of action before the CIT under the provisions of section 516, Tariff Act of 1930, as amended (19 CFR 1516). However, due to the length of the controversy of the classification of textile costumes and the significant interest in this issue, CBP believes notice to the public of the reversal of this decision of the CIT is warranted. CBP will take no action on entries subject to this case until the appeal period has run. See 19 CFR 176.31(b).

Dated: November 7, 2003.

Michael T. Schmitz,

Assistant Commissioner, Office of Regulations and Rulings.