On June 18, 2010, the US Court of Appeals for the Federal Circuit (CAFC) ruled that the ITC’s recommended changes to the HTSUS, and the President’s adoption of those recommendations, were not subject to judicial review. This case involved an appeal by three importers, Michael Simon Design, Inc., Tru 8, Inc., and Target Stores, of a CIT decision denying the importers’ request for judicial review of HTSUS modifications to the duty-free classification of certain holiday-themed clothing.

The HTSUS modifications at issue stemmed from amendments to the international harmonized tariff system proposed by the World Customs Organization in 2004. The amendments excluded apparel and similar “articles having a utilitarian function” from duty-free classification. In its recommendations, the ITC protected the duty-free status of certain “festive articles” by excepting them from the amendments, but the exceptions did not cover the holiday apparel imported by the plaintiffs in this case.

In support of its decision, the CAFC relied on the Supreme Court’s ruling in Dalton v. Spector, holding that the importers were not entitled to judicial review of the ITC’s recommended modifications to the HTSUS because the modifications were not “final” for purposes of the Administrative Procedures Act.