[Code of Federal Regulations]

[Title 19, Volume 2]

[Revised as of April 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 19CFR177.12]



[Page 343-347]

 

                        TITLE 19--CUSTOMS DUTIES

 

   CHAPTER I--BUREAU OF CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF 

        HOMELAND SECURITY; DEPARTMENT OF THE TREASURY (CONTINUED)

 

PART 177_ADMINISTRATIVE RULINGS--Table of Contents

 

                   Subpart A_General Ruling Procedure

 

Sec.  177.12  Modification or revocation of interpretive rulings, 

protest review decisions, and previous treatment of substantially 

identical transactions.



    (a) General. An interpretive ruling, which includes an internal 

advice decision, issued under this part, or a holding or principle 

covered by a protest review decision issued under part 174 of this 

chapter, if found to be in error or not in accord with the current views 

of Customs, may be modified or revoked by an interpretive ruling issued 

under this section. In addition, an interpretive ruling issued under 

this section may have the effect of modifying or revoking the treatment 

previously accorded by Customs to substantially identical transactions. 

A modification or revocation under this section must be carried out in 

accordance with the notice procedures set forth in paragraph (b) or 

paragraph (c) of this section except as otherwise provided in



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paragraph (d) of this section, and the modification or revocation will 

take effect as provided in paragraph (e) of this section.

    (b) Interpretive rulings or protest review decisions. Customs may 

modify or revoke an interpretive ruling or holding or principle covered 

by a protest review decision that has been in effect for less than 60 

calendar days by simply giving written notice of the modification or 

revocation to the person to whom the original ruling was issued or whose 

current transaction was the subject of the internal advice decision or, 

in the case of a protest review decision, to the person identified on 

the Customs Form 19 as the protestant or to any other person designated 

to receive notice of denial of a protest under Sec.  174.30(b) of this 

chapter. However, when Customs contemplates the issuance of an 

interpretive ruling that would modify or revoke an interpretive ruling 

or holding or principle covered by a protest review decision which has 

been in effect for 60 or more calendar days, the following procedures 

will apply:

    (1) Publication of proposed action. A notice proposing the 

modification or revocation and inviting public comment on the proposal 

will be published in the Customs Bulletin. The notice will refer to all 

previously issued interpretive rulings or protest review decisions that 

Customs has identified as being the subject of the proposed action and 

will invite any member of the public who has received another 

interpretive ruling or protest review decision involving the issue that 

is the subject of the proposed action to advise Customs of that fact. 

Interested parties will have 30 calendar days from the date of 

publication of the notice to submit written comments on the proposed 

modification or revocation and to advise Customs in writing that they 

are recipients of an affected interpretive ruling or protest review 

decision that was not identified in the notice.

    (2) Notice of final action. In the absence of extraordinary 

circumstances, within 30 calendar days after the close of the public 

comment period, any submitted comments will be considered and a final 

modifying or revoking notice or notice of other appropriate final action 

on the proposed modification or revocation will be published in the 

Customs Bulletin. In addition, a written decision will be issued to the 

person to whom, or on whose transaction, the original interpretive 

ruling was issued or, in the case of a protest review decision, to the 

person identified on the Customs Form 19 as the protestant or to any 

other person designated to receive notice of denial of a protest under 

Sec.  174.30(b) of this chapter. Publication of a final modifying or 

revoking notice in the Customs Bulletin will have the effect of 

modifying or revoking any interpretive ruling or holding or principle 

covered by a protest review decision that involves merchandise or an 

issue that is substantially identical in all material respects to the 

merchandise or issue that is the subject of the modification or 

revocation, including an interpretive ruling or holding or principle 

covered by a protest review decision that is not specifically identified 

in the final modifying or revoking notice.

    (c) Treatment previously accorded to substantially identical 

transactions--(1) General. The issuance of an interpretive ruling that 

has the effect of modifying or revoking the treatment previously 

accorded by Customs to substantially identical transactions must be in 

accordance with the procedures set forth in paragraph (c)(2) of this 

section. The following rules will apply for purposes of determining 

under this section whether a treatment was previously accorded by 

Customs to substantially identical transactions of a person:

    (i) There must be evidence to establish that:

    (A) There was an actual determination by a Customs officer regarding 

the facts and issues involved in the claimed treatment;

    (B) The Customs officer making the actual determination was 

responsible for the subject matter on which the determination was made; 

and

    (C) Over a 2-year period immediately preceding the claim of 

treatment, Customs consistently applied that determination on a national 

basis as reflected in liquidations of entries or reconciliations or 

other Customs actions with respect to all or substantially all of that 

person's Customs transactions



[[Page 345]]



involving materially identical facts and issues;

    (ii) The determination of whether the requisite treatment occurred 

will be made by Customs on a case-by-case basis and will involve an 

assessment of all relevant factors. In particular, Customs will focus on 

the past transactions to determine whether there was an examination of 

the merchandise (where applicable) by Customs or the extent to which 

those transactions were otherwise reviewed by Customs to determine the 

proper application of the Customs laws and regulations. For purposes of 

establishing whether the requisite treatment occurred, Customs will give 

diminished weight to transactions involving small quantities or values, 

and Customs will give no weight whatsoever to informal entries and to 

other entries or transactions which Customs, in the interest of 

commercial facilitation and accommodation, processes expeditiously and 

without examination or Customs officer review;

    (iii) Customs will not find that a treatment was accorded to a 

person's transactions if:

    (A) The person's own transactions were not accorded the treatment in 

question over the 2-year period immediately preceding the claim of 

treatment;

    (B) The issue in question involves the admissibility of merchandise;

    (C) The person made a material false statement or material omission 

in connection with a Customs transaction or in connection with the 

review of a Customs transaction and that statement or omission affected 

the determination on which the treatment claim is based; or

    (D) Customs advised the person regarding the manner in which the 

transactions should be presented to Customs and the person failed to 

follow that advice; and

    (iv) The evidentiary burden as regards the existence of the previous 

treatment is on the person claiming that treatment. The evidence of 

previous treatment by Customs must include a list of all materially 

identical transactions by entry number (or other Customs assigned 

number), the quantity and value of merchandise covered by each 

transaction (where applicable), the ports of entry, the dates of final 

action by Customs, and, if known, the name and location of the Customs 

officer who made the determination on which the claimed treatment is 

based. In addition, in cases in which an entry is liquidated without any 

Customs review (for example, the entry is liquidated automatically as 

entered), the person claiming a previous treatment must be prepared to 

submit to Customs written or other appropriate evidence of the earlier 

actual determination of a Customs officer that the person relied on in 

preparing the entry and that is consistent with the liquidation of the 

entry.

    (2) Notice procedures--(i) When Customs has reason to believe that a 

contemplated interpretive ruling would have the effect of modifying or 

revoking the treatment previously accorded by Customs to substantially 

identical transactions, notice of the intent to modify or revoke that 

treatment will be published in the Customs Bulletin either as a separate 

action or in connection with a proposed modification or revocation of an 

interpretive ruling or holding or principle covered by a protest review 

decision under paragraph (b)(1) of this section. The notice will give 

interested parties 30 calendar days from the date of publication of the 

notice to submit written comments on the proposed modification or 

revocation and will invite any member of the public whose substantially 

identical transactions have been accorded the same treatment to advise 

Customs in writing of that fact, supported by appropriate details 

regarding those transactions, within that 30-day period. Within 30 

calendar days after the close of the public comment period, any 

submitted comments will be considered, notice of the final interpretive 

ruling or other final action on the proposed modification or revocation 

will be published in the Customs Bulletin. Written confirmation of the 

applicability of a final modification or revocation will be sent to each 

person identified as having had substantially identical transactions 

that were accorded the same treatment.



[[Page 346]]



    (ii) If Customs is not aware prior to issuance that a contemplated 

interpretive ruling would have the effect of modifying or revoking the 

treatment previously accorded by Customs to substantially identical 

transactions, the interpretive ruling will be issued and generally will 

be effective as provided in Sec.  177.9. However, Customs will, upon 

written application by a person claiming that the interpretive ruling 

has the effect of modifying or revoking the treatment previously 

accorded by Customs to his substantially identical transactions, 

consider delaying the effective date of the interpretive ruling with 

respect to that person, and continue the treatment previously accorded 

the substantially identical transactions, pending completion of the 

procedures set forth in paragraph (c)(2)(i) of this section.

    (d) Exceptions to notice requirements--(1) Publication and issuance 

not required. The publication and issuance requirements set forth in 

paragraphs (b) and (c) of this section are inapplicable in circumstances 

in which a Customs position is modified, revoked or otherwise materially 

affected by operation of law or by publication pursuant to other legal 

authority or by other appropriate action taken by Customs in furtherance 

of an order, instruction or other policy decision of another 

governmental agency or entity pursuant to statutory or delegated 

authority. Such circumstances include, but are not limited to, the 

following:

    (i) Adoption or amendment of a statutory provision, including any 

change to the Harmonized Tariff Schedule of the United States;

    (ii) Promulgation of a treaty or other international agreement under 

the foreign affairs function of the United States;

    (iii) Issuance of a Presidential Proclamation or Executive Order, or 

issuance of a decision or policy determination pursuant to authority 

delegated by the President;

    (iv) Subject to the provisions of Sec.  152.16 of this chapter, the 

rendering of a judicial decision which has the effect of overturning the 

Customs position;

    (v) Publication of a decision in the Federal Register as a result of 

a petition by a domestic interested party pursuant to 19 U.S.C. 1516 

(see part 175 of this chapter);

    (vi) Publication of an interim or final rule in the Federal Register 

in accordance with 5 U.S.C. 553;

    (vii) Publication of a final interpretative rule in the Federal 

Register in accordance with 5 U.S.C. 553 following public notice and 

comment procedures; and

    (viii) Publication of a final ruling in the Federal Register in 

accordance with 19 U.S.C. 1315(d) and Sec.  177.10(c) relating to change 

of established and uniform practice.

    (2) Publication not required. In the following circumstances a final 

modifying or revoking ruling will be issued to the person entitled to it 

under paragraph (b) or (c) of this section but Customs Bulletin 

publication under paragraph (b) or (c) of this section is not required:

    (i) The modifying ruling corrects a clerical error; or

    (ii) The modifying or revoking ruling is directed to a ruling issued 

under subpart I of part 181 of this chapter relating to advance rulings 

under the North American Free Trade Agreement.

    (e) Effective date and application to transactions--(1) Rulings or 

decisions in effect for less than 60 days. If an interpretive ruling or 

holding or principle covered by a protest review decision that is 

modified or revoked under this section had been in effect for less than 

60 calendar days, the modifying or revoking interpretive ruling:

    (i) Will be effective on its date of issuance with respect to the 

specific transaction covered by the modifying or revoking interpretive 

ruling: and

    (ii) Will be applicable to merchandise entered, or withdrawn from 

warehouse for consumption, on and after its date of issuance.

    (2) Rulings or decisions in effect for 60 or more days. If an 

interpretive ruling or holding or principle covered by a protest review 

decision that is modified or revoked under this section had been in 

effect for 60 or more calendar days, the modifying or revoking notice 

will, provided that liquidation of the entry in question has not become 

final, apply to merchandise entered, or withdrawn from warehouse for 

consumption:



[[Page 347]]



    (i) Sixty calendar days after the date of publication of the final 

modifying or revoking notice in the Customs Bulletin under paragraph 

(b)(2) of this section; or

    (ii) At the option of any person with regard to that person's 

transaction, on and after the date of publication of the final modifying 

or revoking notice in the Customs Bulletin under paragraph (b)(2) of 

this section.

    (3) Previous treatment accorded to substantially identical 

transactions. A final notice that modifies or revokes the treatment 

previously accorded by Customs to substantially identical transactions:

    (i) Will be effective with respect to transactions that are 

substantially identical to the transaction described in the modifying or 

revoking notice 60 calendar days after the date of publication of the 

final modifying or revoking notice in the Customs Bulletin under 

paragraph (b)(2) or paragraph (c)(2)(i) of this section; and

    (ii) Provided that liquidation of the entry in question has not 

become final, will apply to merchandise entered, or withdrawn from 

warehouse for consumption:

    (A) Sixty calendar days after the date of publication of the final 

modifying or revoking notice in the Customs Bulletin under paragraph 

(b)(2) or paragraph (c)(2)(i) of this section; or

    (B) At the option of a person who makes a valid claim regarding 

previous treatment, on and after the date of publication of the final 

modifying or revoking notice in the Customs Bulletin under paragraph 

(b)(2) or paragraph (c)(2)(i) of this section.



[T.D. 02-49, 67 FR 53497, Aug. 16, 2002; 67 FR 54733, Aug. 26, 2002]