[Federal Register Volume 68, Number 219 (Thursday, November 13, 2003)]
[Notices]
[Pages 64358-64359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28409]


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DEPARTMENT OF HOMELAND SECURITY

Bureau of Customs and Border Protection


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).

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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

[[Page 64359]]

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.
[FR Doc. 03-28409 Filed 11-12-03; 8:45 am]
BILLING CODE 4820-02-P