[Federal Register Volume 66, Number 137 (Tuesday, July 17, 2001)]
[Proposed Rules]
[Pages 37370-37395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17630]



[[Page 37369]]

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Part IV





Department of the Treasury





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Customs Service



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19 CFR Part 177



Administrative Rulings; Proposed Rule

  Federal Register / Vol. 66, No. 137 / Tuesday, July 17, 2001 / 
Proposed Rules  

[[Page 37370]]


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DEPARTMENT OF THE TREASURY

CUSTOMS SERVICE

19 CFR Part 177

RIN 1515-AC56


Administrative Rulings

AGENCY: Customs Service, Department of the Treasury.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document sets forth proposed amendments to those 
provisions of the Customs Regulations that concern the issuance of 
administrative rulings and related written determinations and decisions 
on prospective and current transactions arising under the Customs and 
related laws. The proposed regulatory changes include amendments to 
Customs procedures in response to statutory changes made to the 
administrative ruling process by section 623 of the Customs 
Modernization provisions of the North American Free Trade Agreement 
Implementation Act, as well as organizational changes to clarify 
current administrative practice and otherwise improve the layout and 
readability of the present regulatory texts. The proposed changes 
involve principally the following areas: The issuance of rulings and 
other written advice on prospective transactions; the appeal of 
prospective rulings after issuance; the modification or revocation of 
prospective rulings or of protest review decisions or of treatment 
previously accorded by Customs to substantially identical transactions; 
the limitation of court decisions; the issuance, appeal, and 
modification or revocation of internal advice decisions on current 
transactions; and the treatment of requests for confidential treatment 
of business information submitted to Customs in connection with a 
request for written advice.

DATES: Comments must be received on or before September 17, 2001.

ADDRESSES: Written comments (preferably in triplicate) may be addressed 
to the Regulations Branch, Office of Regulations and Rulings, U.S. 
Customs Service, 1300 Pennsylvania Avenue, NW., Washington, DC 20229. 
Comments submitted may be inspected at the Regulations Branch, Office 
of Regulations and Rulings, U.S. Customs Service 1300 Pennsylvania 
Avenue, NW., 3rd Floor, Washington, DC.

FOR FURTHER INFORMATION CONTACT: John Elkins, Textiles Branch, Office 
of Regulations and Rulings (202-927-2380).

SUPPLEMENTARY INFORMATION:

Background

    Part 177 of the Customs Regulations (19 CFR part 177) contains 
general provisions regarding the issuance of binding administrative 
rulings to importers and other interested persons with regard to 
prospective and current transactions arising under the Customs and 
related laws and also contains provisions covering the issuance of 
country-of-origin advisory rulings and final determinations relating to 
Government procurement. The provisions regarding binding rulings under 
the Customs and related laws, which constitute the primary focus of 
this document, are currently set forth in subpart A of part 177 and do 
not include rulings, determinations, or decisions under specific 
statutory authorities provided for elsewhere in the Customs Regulations 
(for example, in part 133 for enforcement actions regarding 
intellectual property rights, in part 174 for protests, and in part 181 
for advance rulings under the North American Free Trade Agreement). The 
provisions regarding Government procurement country-of-origin advisory 
rulings and final determinations are set forth in subpart B of Part 177 
and are not dealt with in this document.
    On December 8, 1993, the President signed into law the North 
American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 
Stat. 2057). Title VI of that Act contained provisions pertaining to 
Customs Modernization and thus is commonly referred to as the Customs 
Modernization Act or ``Mod Act.'' The Mod Act included two statutory 
amendments that have particular relevance to the part 177 regulatory 
provisions.
    Section 640 of the Mod Act amended section 502 of the Tariff Act of 
1930, as amended (19 U.S.C. 1502), which, in paragraph (a), sets forth 
the authority of the Secretary of the Treasury to promulgate rules and 
regulations for the appraisement and classification of merchandise. The 
Mod Act amendment involved the insertion of the following parenthetical 
expression in the paragraph (a) text: ``(including regulations 
establishing procedures for the issuance of binding rulings prior to 
the entry of the merchandise concerned).''
    Section 623 of the Mod Act extensively amended section 625 of the 
Tariff Act of 1930 as described above. The Mod Act amendment involved 
the following specific changes:
    1. The then-existing text was designated as paragraph (a) and the 
following substantive changes were made within that text: the ``120 
days'' time limit was replaced by ``90 days''; and the reference to 
``any precedential decision (including any ruling letter, internal 
advice memorandum, or protest review decision)'' was replaced by a 
reference to ``any interpretive ruling (including any ruling letter, or 
internal advice memorandum) or protest review decision.''
    2. A new paragraph (b) was added to provide that a person may 
appeal an adverse interpretive ruling, and any interpretation of any 
regulation prescribed to implement such ruling, to a higher level of 
authority within Customs for de novo review. The new paragraph (b) text 
further provides that, upon a reasonable showing of business necessity, 
the appeal must be considered and decided no later than 60 days 
following the date on which the appeal was filed.
    3. A new paragraph (c) was added to require publication, in the 
Customs Bulletin and with opportunity for public comment, of a proposed 
interpretive ruling or decision which would modify (other than to 
correct a clerical error) or revoke a prior interpretive ruling or 
decision which has been in effect for at least 60 days or which would 
have the effect of modifying the treatment previously accorded by 
Customs to substantially identical transactions. This new paragraph (c) 
text further provides: That interested parties must be given not less 
than 30 days after the date of publication to submit comments on the 
proposed ruling or decision; that, after consideration of any comments 
received, a final ruling or decision must be published in the Customs 
Bulletin within 30 days after the closing of the comment period; and 
that the final ruling or decision will become effective 60 days after 
the date of its publication.
    4. A new paragraph (d) was added to provide that a decision that 
proposes to limit the application of a court decision must be published 
in the Customs Bulletin together with notice of opportunity for public 
comment prior to a final decision.
    5. Finally, a new paragraph (e) was added to provide that the 
Secretary of the Treasury may make available in writing or through 
electronic media all information, including directives, memoranda, 
electronic messages and telexes which contain instructions, 
requirements, methods or advice necessary for importers and exporters 
to comply with the Customs laws and regulations, subject to any 
exemption from disclosure provided by the Freedom of Information Act (5 
U.S.C. 552).

[[Page 37371]]

    With regard to the amendment made by section 640 of the Mod Act, 
Customs does not believe that it is necessary to amend the existing 
part 177 regulatory texts to implement this statutory amendment. 
Rather, Customs believes that it would be sufficient, as a matter of 
editorial clarity, to expressly refer to 19 U.S.C. 1502 in the 
authority citation for part 177.
    On the other hand, the amendment of section 625 effected by section 
623 of the Mod Act clearly requires extensive modifications to the part 
177 texts, particularly to reflect requirements and procedures for the 
appeal and modification or revocation of rulings and for the limitation 
of court decisions. In addition, Customs has performed a detailed, 
overall review of the existing provisions within subpart A of part 177 
and has concluded as a result of that review that a number of 
additional organizational and editorial changes should be made in order 
to update and otherwise enhance the clarity, application, and 
organization of those regulatory texts. The proposed changes set forth 
in this document, other than those involving minor wording or other 
editorial changes, are discussed in more detail below.

Overview of Proposed Changes

    The principal proposed organizational changes set forth in this 
document involve the following:
    1. Present Sec. 177.0 (Scope) would be eliminated and its terms 
would be included as part of a new Sec. 177.1 (a general overview of 
the part) which, together with new Sec. 177.2 (definitions) would 
comprise new subpart A (general provisions). These changes are 
primarily intended to better explain the purpose and content of part 
177 and to facilitate the division of present subpart A as described 
below.
    2. Present subpart B (country-of-origin advisory rulings and final 
determinations relating to Government procurement) would be 
redesignated as subpart E, and present subpart A would be divided into 
three new subparts B (advice on prospective transactions), C (internal 
advice procedure) and D (disclosure of confidential business 
information). The division of present subpart A is intended to achieve 
the following:
    a. By treating the internal advice procedure (set forth at present 
in Sec. 177.11) separately in subpart C, the contextual and procedural 
distinctions between that current transaction procedure and the 
prospective advice procedure under subpart B should be clearer; and
    b. By covering the issue of confidential treatment of business 
information separately in subpart D, those provisions can be expanded 
to reflect current Treasury and Customs procedures and practice and can 
apply equally and without unnecessary repetition to information 
submitted to Customs either under subpart B or under subpart C.
    The principal proposed changes set forth in this document involve 
the following: 1. The following proposed changes would address 
statutory changes made by section 623 of the Mod Act as mentioned 
above:
    a. Inclusion of appeal provisions for adverse prospective rulings 
(Sec. 177.20) and adverse internal advice decisions (Sec. 177.33);
    b. Inclusion of a provision (Sec. 177.21) covering the modification 
or revocation of prospective rulings, internal advice decisions, 
protest review decisions, and treatment previously accorded by Customs 
to substantially identical transactions; and
    c. Inclusion of a provision (Sec. 177.23) regarding publication of 
decisions that propose to limit the application of court decisions.
    2. It is proposed to eliminate the principle of detrimental 
reliance (which was a purely regulatory creation) from the part 177 
texts because the Mod Act statutory amendments regarding the 
modification or revocation of rulings and previous treatment (including 
the provision for a delayed effective date) accomplish essentially the 
same purpose and therefore should be viewed as replacing it. However, 
some aspects of the detrimental reliance concept have been retained 
(see the discussion of Sec. 177.21 below).
    3. Except in the case of Sec. 177.22 (established and uniform 
practice) where the regulatory text is directly based on 19 U.S.C. 
1315(d), it is proposed to remove all references to ``uniform 
practice'' or ``practice'' from the part 177 texts, because the 
statutory and regulatory modification/revocation standards and the 
proposed regulatory provisions regarding third party reliance have 
rendered these provisions redundant or otherwise unnecessary.
    4. It is proposed to eliminate the provision regarding inconsistent 
Customs decisions (present Sec. 177.12) because other procedures 
(including the proposed modification/revocation and internal advice 
procedures as set forth in this document) would accomplish much of the 
same purpose. Moreover, elimination of this provision will avoid any 
potential conflict with those statutory modification/revocation 
publication and effective date provisions.
    5. Under the proposed subpart B prospective transaction provisions:
    a. General reference is made to prospective ``advice'' in order to 
accommodate not only binding rulings but also written advice in the 
form of non-binding information letters;
    b. The concept of Customs-initiated prospective rulings has been 
clarified, and procedural safeguards have been included that provide 
(1) that the involved private person in most cases will be afforded a 
30-day period in which to present his written views to Customs before 
issuance of the ruling and (2) that the ruling may not be prepared 
below the level of a Field National Import Specialist; and
    c. The list of circumstances in which a prospective ruling will not 
be issued has been expanded. One of these circumstances would include a 
case in which the ruling requester has previously received a ruling on 
an identical or similar transaction and that previous ruling has been 
the subject of an appeal under Sec. 177.20 or a modification or 
revocation under Sec. 177.21. The purpose of this provision is to limit 
a ruling requester to no more than ``two-bites-at-the-apple.'' It has 
been included by Customs as a matter of administrative necessity in 
order to set an appropriate limit to the number of times that a private 
party may avail himself of administrative ruling and related procedures 
involving the same issue.
    6. Under the proposed subpart C internal advice provisions:
    a. A Customs field office will have discretion in most cases on 
whether to seek internal advice except where the regulatory text 
specifically mandates, or specifically precludes, use of the procedure. 
Thus, as a general rule, an importer or other interested person will 
not have an absolute right to initiate the internal advice procedure;
    b. Similar to the approach that has been used for applications for 
further review of protests under part 174 of the Customs Regulations 
(19 CFR part 174), one of several specific criteria would have to be 
met in order to request internal advice;
    c. Similar to the approach followed for the issuance of prospective 
rulings under subpart B, the proposed text sets forth specific 
circumstances in which internal advice may not be requested, including 
where the interested person has already received a prospective ruling 
on the same issue (the two-bites-at-the-apple limitation would apply, 
and thus either an appeal of the ruling under subpart B or the allowing 
of an

[[Page 37372]]

application for further review of a protest under part 174 would 
constitute the permissible second bite); and
    d. As in the case of Customs-initiated prospective rulings under 
subpart B, the importer or other interested person will have an 
opportunity to present his written views to Customs before issuance of 
the internal advice decision, even when the internal advice procedure 
is initiated within Customs rather than at the request of the 
interested person.
    7. Under the proposed subpart D confidential treatment provisions:
    a. A failure to request confidential treatment at the time the 
information is submitted to Customs will constitute a waiver of 
confidential treatment of that information, and no request for 
confidential treatment will be entertained by Customs if the 
information covered by the request was previously submitted to Customs 
without a request for confidential treatment;
    b. A request for confidential treatment may cover any information 
submitted to Customs under subpart B or subpart C, including 
information submitted with an appeal or in connection with a Customs-
initiated ruling or in connection with a request for internal advice 
initiated by Customs;
    c. In the case of an appeal of a ruling or when a ruling or an 
internal advice request is initiated by an importer or other interested 
person, a failure of Customs and the submitting person to reach 
agreement on a request for confidential treatment either will cause 
Customs to close the case file without action (that is, without issuing 
the requested ruling or internal advice decision or appeal decision) 
or, if the information at issue is contained in a further submission, 
will cause Customs to proceed with the ruling or internal advice 
decision or appeal decision without considering the further submission. 
In either case the appeal or the ruling or internal advice request or 
the further submission normally will be returned to submitting person; 
and
    d. A grant of confidential treatment generally would be valid for a 
period of 3 years and may be renewed for additional periods of up to 3 
years each.

Section-by-Section Discussion of Proposed Changes

Subpart A (General Provisions)

Section 177.1

    This section provides a general overview of part 177, in question-
and-answer (Q&A) format, and includes the terms of present Sec. 177.0 
(scope) and present Sec. 177.1(a)-(c) regarding general ruling 
practice, a general description of the structure and content of the 
Part, and more specific details regarding the operation of the 
prospective advice and internal advice programs under subparts B and C.
    The Q&A format was chosen in order to make the provisions more 
accessible and understandable to the average reader, in particular for 
purposes of alerting the prospective reader up front as to what 
benefits part 177 may offer, without requiring the reader to read 
through all of the considerable technical detail that of necessity must 
be contained in the part. The information provided in this Q&A format 
is intended to complement, and not replace, the more detailed 
corresponding proposed regulatory provisions set forth later in the 
part. Accordingly, each reader is ultimately responsible for consulting 
the specific, detailed provision in question and therefore should not 
place sole reliance on a statement made in the Q&A text.

Section 177.2

    This definitions section replaces present Sec. 177.1(d) and applies 
only for purposes of subparts A through D (the country-of-origin 
Government procurement provisions in redesignated Subpart E include a 
separate definitions section).
    This section includes new definitions of ``National Commodity 
Specialist Division'' and ``person.'' These new definitions are self-
explanatory.
    The following changes are proposed for the definitions contained in 
present Sec. 177.1(d):
    1. The definition of ``authorized agent'' has been modified to 
specify only attorneys at law, licensed customs brokers, and any other 
persons who are not representing a principal under part 177 in regard 
to a matter that constitutes ``customs business'' as defined in 19 
U.S.C. 1641(a)(2). Customs has reexamined the statutory definition of 
``customs business'' and has concluded that requesting rulings and 
making representations under part 177 will, in the great majority of 
cases, involve matters that fall within the definition of ``customs 
business'' and that should be left to those classes of persons who are 
specially qualified (for attorneys by virtue of admission to the bar 
and for customs brokers by virtue of being licensed to transact customs 
business pursuant to 19 U.S.C. 1641 and 19 CFR part 111) to make those 
requests and representations. The third class of authorized agent 
mentioned in the proposed text recognizes, however, that there are some 
matters that arise under part 177 that do not constitute ``customs 
business'' and therefore should not be so restricted (for example, 
issues involving marine transactions or transportation of merchandise 
in bond--see 19 CFR 111.2(a)(2)(iii) and (iv)).
    2. The definition of ``Customs transaction'' has been modified to 
more clearly distinguish between the three types of Customs 
transactions and to ensure that a ``current'' or a ``completed'' 
Customs transaction is not interpreted to include the filing of a 
ruling request under part 177.
    3. The definition of ``ruling'' has been modified:
    a. To include a reference to issuance by the National Commodity 
Specialist Division which is an organizational part of the Office of 
Regulations and Rulings but is physically separate from the 
Headquarters Office;
    b. To refer to issuance under subpart B and subpart C to reflect 
the move of the internal advice procedure provisions to subpart C; and
    c. To refer to the fact that a ruling may be issued in the absence 
of a specific request (Customs-initiated ruling).

Subpart B (Advice on Prospective Transactions)

Section 177.11

    This section concerns the preparation and submission of ruling 
requests involving prospective Customs transactions and replaces 
present Sec. 177.2. The following points are noted regarding the 
changes reflected in the proposed new text:
    1. In paragraph (a):
    a. Specific provision is made for submission of the request in the 
English language, because Customs does not have the resources needed to 
translate requests prepared in other languages; and
    b. For purposes of submitting a ruling request to Customs, a 
clearer and more specific subject matter jurisdictional division 
between the National Commodity Specialist Division and the Headquarters 
Office has been provided.
    2. In paragraph (b) which concerns the content of ruling requests:
    a. Statements have been added to remind the reader that a ruling is 
issued on the facts presented and that a ruling based on inaccurate or 
incomplete information will not be applied to the transaction for which 
it was intended;
    b. The requirement to identify the port where the prospective 
transaction will take place has been removed, because it is 
unnecessarily burdensome and has minimal legal relevance or utility;
    c. The specifications for the description of specific types of

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transactions for which rulings may be requested have been updated and 
otherwise revised, and specifications for additional types of 
transactions have been included, in order to provide more effective and 
precise guidance for the potential ruling requester;
    d. The paragraph concerning samples submitted in connection with a 
ruling request has been modified to provide that samples will be 
returned only at the expense of the ruling requester and to provide 
that samples not returned or retained by Customs or consumed during 
examination will be disposed of according to law 90 days after 
disposition of the ruling request;
    e. The paragraph requiring a statement concerning the existence of 
prior or current transactions has been revised to require submission of 
the statement in the form of a signed certification;
    f. The paragraph regarding privileged or confidential information 
has been revised to provide that the ruling requester who wants 
confidential treatment of information must make a written request for 
that treatment when the information is submitted to Customs and in 
conformity with the provisions of Subpart D; and
    g. A new paragraph has been added to require inclusion of a 
statement in the ruling request if the ruling requester wants to have a 
conference when issuance of an adverse ruling is contemplated.
    3. Present paragraph (d), which concerns requests for immediate 
consideration, has been transferred, with textual changes, to new 
Sec. 177.17 because it appears to relate more directly to the rulings 
issuance process. Of course, there is nothing that would preclude a 
ruling requester from including a request for expedited consideration 
in his ruling request, and Customs would consider it in accordance with 
the principles stated in new Sec. 177.17.

Section 177.12

    This section concerns nonconforming requests for rulings and 
replaces present Sec. 177.3. The only changes of note involve (1) 
providing for closing the Customs file in the case of a nonconforming 
request sent to the Headquarters Office that is not brought into 
conformity within the prescribed period, (2) providing for the 
immediate return of the request to the requester and closing of the 
file without further action in the case of a nonconforming request sent 
to the National Commodity Specialist Division but without prejudice to 
resubmission, and (3) inclusion of a statement that if a ruling request 
is sent to the wrong office, there will be a delay in processing the 
request while it is forwarded to the correct office (but the request 
would not be treated as a nonconforming request under the section).

Section 177.13

    This section concerns conferences on issues raised in ruling 
requests and replaces present Sec. 177.4. The following points are 
noted regarding changes reflected in the proposed new text:
    1. Conferences may be held only at the Headquarters Office and only 
in connection with rulings to be issued by that office. If a request 
for a conference (see proposed Sec. 177.11(b)(9)) is made in a ruling 
request submitted to the National Commodity Specialist Division and an 
adverse ruling is contemplated and the matter cannot be resolved 
informally by the ruling requester and that office, the ruling request 
will be forwarded to the Headquarters Office for processing (forwarding 
to the Headquarters Office is simply intended to preserve the ruling 
requester's right to have a conference in the described circumstances).
    2. Although a ruling requester will retain the right to have a 
conference if requested and provided that an adverse ruling is 
contemplated, under the revised text a conference also may be held 
whenever the Headquarters Office believes that a conference is 
necessary.
    3. The paragraph regarding representation has been modified to 
clarify that while there is no restriction regarding who may accompany 
a ruling requester at a conference, only an ``authorized agent'' may 
appear at the conference in place of the ruling requester.
    4. If additional information is to be provided after a conference, 
the new text prescribes a 30-day period (or longer period as may be 
specified by the Headquarters Office) for submission of that 
information.

Section 177.14

    This section concerns changes in the status of transactions (in 
particular when a prospective transaction described in a ruling request 
becomes a current transaction or when the ruling requester learns that 
a summons involving the same issue has been filed in the Court of 
International Trade) and replaces present Sec. 177.5. The text has been 
simplified to specify two basic circumstances in which a person must 
advise Customs of a change and the possible consequences for failing to 
do so.

Section 177.15

    This section concerns the withdrawal of ruling requests and 
replaces present Sec. 177.6. The text has been modified (1) to require 
that the withdrawal be in writing, (2) to refer to an exception under 
the new Subpart D texts to the normal rule that Customs will retain the 
ruling request and related materials in its file after a withdrawal, 
and (3) to more clearly state that Customs may issue a ruling on the 
matter on its own initiative notwithstanding the withdrawal if it is 
believed necessary for the sound administration of the Customs and 
related laws.

Section 177.16

    This section specifies situations in which a ruling will not be 
issued and replaces present Sec. 177.7. The list of situations has been 
significantly expanded and includes, among other things, the two-bites-
at-the-apple principle discussed above in the overview of the changes 
to the prospective ruling provisions.

Section 177.17

    This section concerns the issuance of rulings and replaces those 
portions of present Sec. 177.8 that specifically concern the issuance 
process. Paragraph (a) covers the issuance of rulings in response to 
requests and includes, in paragraph (a)(3), a simplified text taken 
from present Sec. 177.2(d) regarding the handling of requests for 
immediate consideration. It should also be noted that the provision in 
paragraph (a)(2) for issuance of ruling request responses by the 
National Commodity Specialist Division within 30 days is not intended 
to be mandatory because in some cases a longer period may be necessary. 
Paragraph (b) deals with the issuance of Customs-initiated rulings (as 
already discussed above in the overview of the changes to the 
prospective ruling provisions). It should be noted that an exception to 
the 30-day written submission period will apply to Customs-initiated 
rulings involving admissibility issues, because admissibility issues 
often involve time-sensitive enforcement considerations requiring 
immediate action on the part of Customs.

Section 177.18

    This section sets forth the requirement of recipients to bring 
prospective rulings to the attention of Customs field offices and to 
use positions set forth in those rulings when completing entry 
documentation. It in effect replaces present Sec. 177.8(a)(2).

[[Page 37374]]

Section 177.19

    This section concerns the effect of prospective rulings and in 
effect replaces present Sec. 177.9(a)-(c).

Section 177.20

    This section sets forth procedures regarding the appeal of adverse 
prospective rulings issued under subpart B. This section is entirely 
new and implements the terms of 19 U.S.C. 1625(b) as added by section 
623 of the Mod Act. The following points are noted regarding the 
proposed text which is otherwise self-explanatory:
    1. Although the statute refers to the appeal of an adverse 
``interpretive'' ruling, the proposed text refers to ``prospective'' 
rulings to ensure coverage of all rulings issued under subpart B.
    2. Although the proposed text makes provision for conferences at 
the Headquarters Office, it differs from the initial prospective ruling 
procedure by providing for conferences not as a matter of right but 
rather only if the Headquarters Office believes that a conference is 
necessary.
    3. An appeal under this section would constitute a second bite 
under the two-bites-at-the-apple principle discussed above.
    4. With regard to rulings that are modified or revoked on appeal, 
the effective date provisions in paragraph (g)(4) of the proposed text 
must reflect a distinction between rulings that have been in effect for 
less than 60 days and those that have been in effect for 60 or more 
days because, in the latter case, the publication and effective date 
requirements of 19 U.S.C. 1625(c) and proposed new Sec. 177.21 will 
control.

Section 177.21

    This section implements the modification and revocation provisions 
of 19 U.S.C. 1625(c) as added by section 623 of the Mod Act and it also 
in effect replaces present Sec. 177.9(d) and (e). The following points 
are noted regarding this proposed text:
    1. The proposed text reflects a decision Customs has taken to use a 
prospective ruling as the means for carrying out a modification or 
revocation referred to in the statute or in the present regulatory 
text. Therefore, under the general statement in paragraph (a) of the 
proposed text a prospective ruling issued under subpart B of part 177 
can (1) modify or revoke a previously issued prospective ruling, (2) 
modify or revoke a previously issued internal advice decision, (3) 
modify or revoke a holding or principle covered by a protest review 
decision issued previously under part 174, or (4) have the effect of 
modifying or revoking the treatment previously accorded by Customs to 
substantially identical transactions. The following additional points 
are noted regarding the general content of this section:
    a. The text reflects the statutory requirement of Customs Bulletin 
publication and thus ensures that the modification or revocation 
procedure will be controlled by the Headquarters Office;
    b. The text refers to the modification or revocation of a 
``prospective'' ruling (rather than an ``interpretive'' ruling) 
because, similar to the case of appeals under proposed Sec. 177.20, 
this will ensure coverage of all rulings issued under subpart B; and
    c. The text refers to the modification or revocation of a ``holding 
or principle covered by'' a protest review decision rather than using 
only the term ``protest review decision'' that appears in 19 U.S.C. 
1625. Customs notes in this regard that protests and protest review 
decisions arise under a separate statutory and regulatory framework (19 
U.S.C. 1514 and 1515 and 19 CFR part 174) and involve Customs decisions 
taken on current transactions. A previously issued protest review 
decision may already have resulted in an action (for example, 
reliquidation of an entry) that has become final and therefore is not 
technically susceptible to modification or revocation. On the other 
hand, a holding or principle reflected in a protest review decision can 
always be modified or revoked for purposes of applying the new position 
to prospective or current transactions.
    Customs also notes that protests, by virtue of their separate 
statutory and regulatory framework, represent an exception to the rule 
that applies when a ruling issued under part 177 is modified or revoked 
pursuant to 19 U.S.C. 1625(c), because the statutory right to file a 
protest cannot be infringed by an action taken by Customs under another 
statutory authority. Therefore, when the same issue is involved in a 
pending protest and in a proposed modification or revocation under 19 
U.S.C. 1625(c), Customs will first conclude the 19 U.S.C. 1625(c) 
procedure and then issue a decision on the protest consistent with the 
position taken in the modifying or revoking ruling unless the 
protestant is entitled to a different decision due to application of 
any procedural delay.
    2. Paragraph (b) of the proposed text concerns the procedures for 
modifying or revoking prospective rulings, internal advice decisions, 
and holdings or principles covered by protest review decisions. The 
following points are noted regarding this text:
    a. The text reflects the statutory distinction between rulings, 
etc. that have been in effect for less than 60 days and those that have 
been in effect for 60 or more days. In the latter case the text sets 
forth proposed and final action Customs Bulletin publication 
procedures. The modification and revocation procedures set forth in 
this paragraph reflect the procedures that Customs has followed under 
authority of the statute since the Mod Act provisions were enacted;
    b. In addition to soliciting comments on the proposed modification 
or revocation, the notice of the proposed action invites members of the 
public who have received an affected ruling, etc., but who are not 
specifically identified in the notice, to advise Customs in writing of 
that fact during the prescribed 30-day comment period. The purpose of 
this provision is to give all affected ruling, etc. recipients an 
opportunity to come forward to Customs so that they would be notified 
in writing of the final action taken on the proposed modification or 
revocation. It should be noted that a failure to respond to this 
solicitation would have no effect on the ruling, etc. recipient's 
statutory and regulatory rights regarding the effective date of the 
final modification or revocation action, including his right to 
exercise the option of having application of the modification or 
revocation to his transactions commencing on the date of publication of 
the final notice of modification or revocation rather than only upon 
the close of the statutory 60-day delayed effective date period (see 
the discussion below regarding the paragraph (e) effective date 
provisions); and
    c. The text makes it clear that a published final modifying or 
revoking notice applies to all existing rulings and decisions that 
involve substantially identical merchandise or issues, including 
rulings and decisions that are not specifically identified in that 
final notice.
    3. Paragraph (c) of the proposed text sets forth the standards that 
apply to the issuance of a prospective ruling that has the effect of 
modifying or revoking the treatment previously accorded by Customs to 
substantially identical transactions. The following points are noted 
regarding the proposed text:
    a. Paragraph (c)(1) includes a definition of the term 
``treatment,'' describes the general approach Customs will take in 
applying that definition to a specific situation, provides that a 
person may not claim as a treatment the treatment Customs accorded to

[[Page 37375]]

transactions of another person (because treatment is personal and thus 
not transferable), provides that the burden of proving the existence of 
a treatment is on the person claiming the treatment, and prescribes 
standards for evidence of previous treatment. In setting forth these 
regulatory standards, Customs has relied in part on the text of present 
Sec. 177.9(e) which concerns the use of delayed effective dates in the 
case of ruling letters covering transactions or issues not previously 
the subject of ruling letters and which have the effect of modifying 
the treatment previously accorded by Customs to substantially identical 
transactions. Customs believes that use of the present regulatory 
standards in this new regulatory text is appropriate because, given the 
similarity in language, it seems clear that the present regulation 
served as the model for the subsequently enacted statutory text except 
that application of a delayed effective date is now mandated. However, 
in the definition of ``treatment,'' the proposed regulatory text 
differs from the present regulatory standard in providing that Customs 
will give ``no weight'' (rather than ``diminished weight'') to 
transactions that Customs for facilitation purposes processes 
expeditiously and without examination or import specialist review. This 
proposed text is intended to reflect present Customs operational 
reality, that is, the fact that under selectivity and bypass and 
related procedures Customs simply does not intervene in the vast 
majority of the approximately 18 million formal entries filed annually 
(98 percent of which are filed electronically and over 60 percent of 
which do not require the presentation of invoices to Customs). Customs 
believes that it would be inappropriate to conclude, as a legal matter, 
that Customs accorded treatment to a transaction in those 
circumstances;
    b. Paragraph (c)(2)(i) describes the normal circumstance in which 
Customs will publish in the Customs Bulletin a notice of intent to 
modify or revoke a treatment, that is, when Customs has reason to 
believe at the outset that the proposed prospective ruling would have 
that effect. In this case the regulatory text states that the notice 
will be published either separately or as part of a notice of a 
proposed modification or revocation of a ruling, etc. under paragraph 
(b), will solicit comments on the proposed modification or revocation, 
and will invite members of the public to advise Customs in writing if 
they have received the same treatment on substantially identical 
transactions (as in the case of rulings, etc., a failure to respond to 
the notice would not prejudice a treatment recipient's right to avail 
himself of the benefits of the effective date provisions under 
paragraph (e)). The text also provides for publication of a notice of 
final action on the proposed modification or revocation; and
    c. Paragraph (c)(2)(ii) sets forth a second circumstance in which 
Customs might publish a notice of intent to modify or revoke a 
treatment, that is, when Customs issues a prospective ruling without 
being aware that it would have that effect but after issuance receives 
a written application from a person claiming previous treatment and 
requesting a delay in the effective date of the prospective ruling with 
respect to his transactions. In this case, if Customs agrees with the 
position of the person regarding the existence of the previous 
treatment: (1) the prospective ruling in effect would be void as 
regards the person who established that he had the previous treatment, 
and (2) Customs would continue the treatment previously accorded to 
that person's substantially identical transactions pending completion 
of the proposed modification or revocation and final action publication 
procedures prescribed in paragraph (c)(2)(i). The proposed text sets no 
time limit for submission of the written application.
    Paragraph (c)(2)(ii) has been included in the section text because 
the statutory publication requirements regarding modification or 
revocation of a treatment merely require the existence of a treatment 
and thus do not require advance knowledge on the part of Customs 
regarding the existence of the treatment. This being the case, in the 
absence of publication of notice of a proposed modification or 
revocation of a ruling, etc. under paragraph (b) which would 
automatically solicit comments regarding existing treatments, a post-
issuance mechanism must be provided whereby interested persons may 
inform Customs of the existence of treatments of which Customs is not 
otherwise aware (Customs does not keep the types of records that would 
enable Customs to determine routinely and independently that a 
treatment is being affected by a prospective ruling). As part of the 
general solicitation of public comments set forth in this document, 
Customs is interested in receiving comments on the approach proposed in 
this paragraph, including suggestions for any alternative approaches 
that commenters believe would be preferable.
    4. Paragraph (d) sets forth exceptions to application of the notice 
requirements of paragraphs (b) and (c). The following is noted 
regarding the proposed text:
    a. Paragraph (d)(1) sets forth a general statement and specific 
examples of circumstances in which Customs will not follow the 
paragraph (b) or paragraph (c) publication and issuance requirements. 
These circumstances generally involve modifications and revocations 
that result from governmental (legislative, judicial or administrative) 
decisions or other actions taken outside Customs or that result from 
publication procedures pursuant to other statutory authority. This 
paragraph has been included because it would be unreasonable, 
excessively burdensome, and unnecessary to require Customs to follow 
the paragraph (b) or paragraph (c) publication and issuance 
requirements with regard to matters as to which the public already has 
notice regarding their effect (by operation of law or otherwise) and 
with regard to changes that do not result from the exercise of 
discretionary decision-making authority on the part of Customs.
    Paragraph (d)(1)(v) refers to the publication of a decision in the 
Federal Register as a result of a domestic interested party petition, 
which is a procedure that (similar to a protest) has its own statutory 
and regulatory framework (19 U.S.C. 1516 and 19 CFR part 175) and that 
(similar to the 19 U.S.C. 1625(c) procedure) provides for public notice 
and comment. This paragraph was included because Customs does not 
believe that sound administrative practice would be well served by 
repeating in a 19 U.S.C. 1625(c) procedure what was already 
accomplished in a 19 U.S.C. 1516 context. While cases that could 
potentially give rise to both statutory procedures will occur only 
infrequently, Customs has developed the following internal approach to 
avoid any possible conflict between the two procedures: (1) if Customs 
agrees with the position presented by a domestic interested party under 
19 U.S.C. 1516, Customs will then attempt to determine whether there is 
an extant ruling, internal advice decision, protest review decision or 
treatment that is in conflict with that position and, if it is 
determined that a conflict exists, then Customs will initiate the 19 
U.S.C. 1625(c) modification or revocation procedure; or (2) if the 
position of Customs differs from the position of the domestic 
interested party and that party contests the Customs position, the 
matter will be resolved in accordance with the 19 U.S.C. 1516 
publication procedures. As part of the general solicitation of public 
comments contained in this document,

[[Page 37376]]

Customs is interested in receiving comments on the Customs position 
regarding this specific matter.
    b. Paragraph (d)(2) sets forth three specific circumstances in 
which Customs will issue a modifying or revoking ruling but is not 
required to follow the paragraph (b) or paragraph (c) Customs Bulletin 
publication procedure. The reference to correction of a clerical error 
reflects the terms of 19 U.S.C. 1625(c)(1) and the reference to rulings 
issued under the NAFTA regulations reflects the fact that different 
standards apply to the modification or revocation of advance rulings 
under the NAFTA.
    5. Paragraph (e) prescribes rules regarding the effective dates and 
application of modifications and revocations under Sec. 177.21. The 
following is noted regarding the proposed text:
    a. Paragraph (e)(1) covers the modification or revocation of 
prospective rulings, internal advice decisions, and holdings or 
principles covered by protest review decisions that have been in effect 
for less than 60 days. The proposed text provides for an effective date 
for the modifying or revoking ruling, and for its application to 
transactions, commencing on the date of issuance because the statutory 
Customs Bulletin publication and delayed effective date provisions do 
not apply in this case;
    b. Paragraph (e)(2) covers the modification or revocation of 
prospective rulings, internal advice decisions, and holdings or 
principles covered by protest review decisions that have been in effect 
for 60 or more days. The proposed text provides that the modifying or 
revoking notice will be effective 60 days after publication of the 
final modifying or revoking notice in the Customs Bulletin, in keeping 
with the statutory delayed effective date provision which applies in 
this case. With regard to the application of the modifying or revoking 
notice to transactions, the proposed text states that it will apply to 
merchandise entered, or withdrawn from warehouse for consumption, and 
provided that liquidation of the entry in question has not become 
final, as follows: (1) sixty days after publication of the final 
modifying or revoking notice in the Customs Bulletin; or (2) at the 
option of the person whose goods are in question, commencing on the 
date of publication of the final modifying or revoking notice in the 
Customs Bulletin.
    This proposal for alternatives in applying the modification or 
revocation to transactions is not specifically addressed in the delayed 
effective date language of the statute. However, Customs believes that 
Congress intended to protect importers and other persons who deal 
directly with Customs from the effect of unilateral decisions taken by 
Customs without prior notice. Thus, Customs believes that the proposal 
could have the following results: (1) It would allow the importer or 
other interested party to obtain a result earlier if the result 
reflected in the modifying or revoking notice is favorable to his 
position; (2) it would afford Customs more flexibility to apply the 
correct legal position at an earlier date (provided the importer or 
other interested person requests it); (3) it would reduce the need to 
resort to other administrative remedies (such as filing protests and 
applications for further review) at a later date; (4) by leaving the 
choice to the importer or other interested party who is always the best 
judge of what is in his interest, it would preserve the basic purpose 
behind the statutory delayed effective date provision; and (5) it is 
consistent with the principle that underlies the statutory obligation 
of an importer to exercise reasonable care when entering merchandise; 
and
    c. Paragraph (e)(3) covers the modification or revocation of 
treatment previously accorded to substantially identical transactions. 
Because the statutory Customs Bulletin publication and delayed 
effective date provisions apply in this case, this paragraph follows 
the general approach taken in paragraph (e)(2) regarding the effective 
date of the modification or revocation and its application to 
transactions, but the text in regard to advancing the date of 
application refers to ``a person who makes a valid claim regarding 
previous treatment.'' The additional observations regarding paragraph 
(e)(2) therefore also apply to this paragraph.
    As part of the general solicitation of public comments set forth in 
this document, Customs would be interested in receiving specific 
comments regarding the suitability of the proposal in paragraphs (e)(2) 
and (e)(3) of this section to allow alternatives in applying a final 
modifying or revoking notice to transactions.

Section 177.22

    This section concerns changes in established and uniform practices 
under 19 U.S.C. 1315(d) that result in a higher rate of duty or charge 
and is in part derived from present Sec. 177.10(c). The following 
points are noted regarding the proposed new text:
    1. Paragraph (a) sets forth traditional administrative and judicial 
principles regarding the meaning of an established and uniform practice 
and clarifies that the burden is on the importer to prove the existence 
of the practice except when Customs publishes a notice of a practice on 
its own initiative under paragraph (c). Similar to the approach taken 
in the definition of ``treatment'' in proposed Sec. 177.21(c)(1) as 
discussed above, this paragraph (a) text provides that ``treatment 
accorded by Customs'' means an actual review of entries and does not 
include cases where Customs had no direct, active involvement in the 
liquidation of the entry.
    2. Paragraph (b) concerns the procedures applicable to changes in 
established and uniform practices and is based both on the statute and 
on the present regulatory text.
    3. Paragraph (c) concerns publication of notice of the existence of 
an established and uniform practice by Customs on its own initiative. 
Once Customs publishes the notice of that practice in the Customs 
Bulletin, the practice would become subject to the paragraph (b) change 
procedures.

Section 177.23

    This section sets forth specific procedures for the limitation of 
court decisions. It implements 19 U.S.C. 1625(d) and in effect replaces 
present Sec. 177.10(d). The terms of the proposed text are otherwise 
self-explanatory.

Section 177.24

    This section concerns the availability of rulings to the public. It 
implements the terms of 19 U.S.C. 1625(a) and in effect replaces 
present Sec. 177.10(a). The following points are noted regarding the 
proposed new text:
    1. The text elaborates on the statutory language in referring to 
all ``rulings'' issued under Part 177 (rather than to only 
``interpretive rulings'') to ensure maintenance of the broad 
availability of all part 177 rulings as has been the practice of 
Customs since adoption of the Mod Act statutory changes.
    2. Although the reference to ``rulings'' would cover internal 
advice decisions issued under proposed new subpart C, it would not 
cover protest review decisions issued under part 174 of the 
regulations. Customs intends to address this matter in the context of a 
separate part 174 regulatory document.
    3. An exception has been included for rulings already made 
available to the public by virtue of publication under proposed 
Secs. 177.21, 177.22 and 177.23.

Subpart C (Internal Advice Procedure)

Section 177.31

    This section concerns requests for advice by Customs offices in 
general and is based on the general statement contained in present 
Sec. 177.11(a).

[[Page 37377]]

Section 177.32

    This section sets forth the standards that apply to requests for 
advice on current transactions and in effect replaces present 
Sec. 177.11(b). The following points are noted regarding the proposed 
text:
    1. Paragraph (a) concerns requests for advice in circumstances in 
which a prospective ruling has been issued. The text corresponds to 
present Sec. 177.11(b)(1). The following is noted regarding this 
proposed paragraph (a) text:
    a. In cases involving requests initiated by Customs, the text 
provides that the importer or other interested person having an 
interest in the current transaction at issue will be given 30 days to 
make a written submission on the issue; and
    b. In cases involving requests initiated by importers or other 
interested persons, the text provides that, so long as the matter meets 
the paragraph (c) standards for internal advice, the decision to 
request advice is solely at the discretion of the Customs office and 
will be made in writing within 30 days.
    2. Paragraph (b) concerns requests for advice in circumstances in 
which a prospective ruling has not been issued. The text corresponds to 
present Sec. 177.11(b)(2). The following is noted regarding this 
proposed paragraph (b) text:
    a. In proposed paragraph (b)(1), the text follows proposed 
paragraph (a) regarding written submissions when requests are initiated 
by Customs and regarding the discretion of the Customs office to 
request advice. However, the text also contains an exception to that 
discretionary authority in cases involving differences in tariff 
treatment as provided in proposed paragraph (b)(2); and
    b. Paragraph (b)(2) mandates that a Customs office request internal 
advice, subject to two conditions, when it learns that two or more 
Customs offices are applying different tariff results to the same 
merchandise. The text also provides that an importer of merchandise, as 
a function of the exercise of reasonable care, has an obligation to 
inform Customs when he files his entry if he knows that a 
``difference'' situation exists regarding his importations. This 
provision is intended to foster uniformity in tariff application and in 
effect replaces present Sec. 177.12 in this regard.
    3. Paragraph (c) sets forth criteria for internal advice and has no 
specific counterpart in the present Sec. 177.11 text. The following is 
noted regarding this proposed paragraph (c) text:
    a. Proposed paragraph (c)(1) sets forth specific circumstances in 
which internal advice may be requested and is modeled on the criteria 
for further review of protests contained in present Sec. 174.24 but 
with changes to reflect an internal advice context. It should be noted 
that these new criteria for internal advice do not permit the mere 
allegation of a fact by an importer or other interested person to 
establish that a criterion for internal advice has been met; and
    b. Proposed paragraph (c)(2) lists specific circumstances in which 
internal advice may not be requested and is similar to proposed 
Sec. 177.16 (which specifies when a prospective ruling under Subpart B 
will not be issued) but with changes to reflect an internal advice 
context. Thus, this proposed text incorporates, among other things, the 
two-bites-at-the-apple principle discussed above.
    4. Paragraph (d) sets forth content standards for submissions or 
requests made by importers and other interested persons and in effect 
replaces present Sec. 177.11(b)(3). The text has been modified to align 
on the language used in proposed Sec. 177.11(b) for prospective ruling 
requests as regards conferences, requests for confidential treatment 
and, if the second criterion for internal advice is used, the 
certification as regards pending consideration and accuracy of the 
information provided.
    5. Paragraph (e) concerns the initial review of statements 
submitted by importers and other interested persons and is based on 
present Sec. 177.11(b)(4).
    6. Paragraph (f) sets forth procedures regarding the submission and 
processing of requests for internal advice. The following is noted 
regarding this proposed paragraph (f) text:
    a. Proposed paragraph (f)(1) requires the involved Customs office 
to submit the internal advice request to the National Commodity 
Specialist Division if the request involves a matter on which the 
National Commodity Specialist Division is allowed to issue a 
prospective ruling under proposed Sec. 177.11(a)(1). The text also 
specifies three specific alternative actions that the National 
Commodity Specialist Division may take regarding the request (that is, 
in specific circumstances, return it to the requesting Customs office 
without decision, issue a decision to the requesting Customs office 
with a copy to the importer or other interested person, or forward the 
request to the Headquarters Office for consideration and decision) and 
the circumstances in which each of those actions may be taken;
    b. Proposed paragraph (f)(2) requires the involved Customs office 
to submit the internal advice request directly to the Headquarters 
Office if the request involves a matter on which only the Headquarters 
Office may issue a prospective ruling under proposed Sec. 177.11(a)(2). 
The text also specifies the manner in which the Headquarters Office 
will review an internal advice request and issue a decision and 
includes the terms of present Sec. 177.11(b)(5) regarding circumstances 
in which the Headquarters Office may refuse to consider a request; and
    c. Proposed paragraph (f)(3) concerns conferences on issues raised 
in internal advice requests and has no specific counterpart in present 
Sec. 177.11. This proposed text is modeled on the conference provisions 
for prospective rulings set forth in proposed Sec. 177.13.
    7. Paragraph (g) concerns the effect of internal advice decisions. 
The following is noted regarding this proposed text:
    a. Proposed paragraph (g)(1) sets forth a general statement 
regarding the effect and application of internal advice decisions and 
is derived from present Sec. 177.11(b)(6). The proposed text differs 
from the present text in that it (1) does not refer only to decisions 
issued by the Headquarters Office (because internal advice decisions 
can also be issued by the National Commodity Specialist Division in 
some cases), (2) does not include the language regarding 
reconsideration of the decision (which Customs does not believe is 
necessary given the extent of the participation of the requesting 
office in the process), (3) clarifies that a decision will be applied 
by Customs to future transactions of the importer or other interested 
person involving circumstances that are substantially identical in all 
material respects (rather than only to the one specific current 
transaction that gave rise to the decision), and (4) includes exception 
language for cases in which a decision is subsequently modified or 
revoked; and
    b. Proposed paragraph (g)(2) sets forth standards regarding the 
reliance on internal advice decisions by third parties. The text 
follows the approach taken in the case of prospective rulings under 
proposed Sec. 177.19(c).

Section 177.33

    This section sets forth procedures regarding the appeal of adverse 
internal advice decisions. The proposed text follows the proposed 
Sec. 177.20 text regarding the appeal of adverse prospective rulings 
but with some wording changes necessary to reflect an internal advice 
context. Therefore, the principles reflected in the points noted above 
regarding proposed Sec. 177.20 also apply to this proposed section.

[[Page 37378]]

Section 177.34

    This section concerns the availability of internal advice decisions 
to the public and consists of a simple cross-reference to proposed 
Sec. 177.24. It thus is consistent with the mandate of 19 U.S.C. 
1625(a) and replaces present Sec. 177.11(b)(7).

Subpart D (Disclosure of Confidential Business Information)

Section 177.41

    This section sets forth detailed standards for the treatment of 
requests for confidential treatment of business information submitted 
to Customs under subpart B or subpart C. In addition to the general 
comments regarding subpart D made above, the following points are noted 
regarding the proposed text:
    1. Paragraph (a) consists of a basic statement regarding (1) the 
position of Customs on the general availability to the public of 
information submitted to Customs under part 177 and (2) the right of a 
submitting person to request confidential treatment of information that 
he does not want to be disclosed to the public.
    2. Paragraph (b) prescribes the standards for submitting requests 
for confidential treatment. The proposed text represents an elaboration 
of, and therefore in effect replaces, present Sec. 177.2(b)(7) and is 
self-explanatory.
    3. Paragraph (c) specifies the procedures Customs will follow in 
handling requests for confidential treatment made under proposed 
paragraph (b). It has no direct counterpart in the present part 177 
texts. With regard to situations in which Customs and the requesting 
person cannot reach agreement on a request for confidential treatment, 
it should be noted that the proposed text does not provide for 
nonconsideration and return of a submission made in connection with a 
prospective ruling or internal advice request that is initiated by 
Customs. Rather, the text provides in this case that Customs will 
proceed with the prospective ruling or internal advice decision but 
will attempt to prepare a meaningful ruling or decision in such a way 
as to avoid disclosure of the information at issue. This provision was 
included in order to avoid a situation in which the issuance of a 
ruling that Customs deems to be necessary could be forestalled by an 
importer or other interested person simply by making a request for 
confidentiality. Customs believes that such a result must be avoided 
because it could seriously compromise the effectiveness of the Customs-
initiated ruling procedure.

Section 177.42

    This section provides for a time limitation on a grant of 
confidential treatment and is self-explanatory.

Section 177.43

    This section sets forth the procedures for renewing a grant of 
confidential treatment and is self-explanatory.

Section 177.44

    This section specifies the procedures that Customs and private 
parties must follow when a request for disclosure under the Freedom of 
Information Act (the FOIA, 5 U.S.C. 552) is made for business 
information submitted to Customs under subpart B or subpart C of part 
177. It has no counterpart in the present part 177 texts. The proposed 
text reflects the so-called ``reverse FOIA'' principles that apply to 
Federal government agencies under Exemption 4 of the FOIA and is based 
on the provisions regarding disclosure of business information 
contained in Sec. 1.6 of the Treasury Department Regulations (31 CFR 
1.6).

Subpart E (Government Procurement; Country-of-Origin 
Determinations)

    The only changes proposed for this subpart involve changes to 
section references within the texts to reflect the organizational 
changes and consequential renumbering of the sections within part 177.

Comments

    Before adopting these proposed regulatory amendments as a final 
rule, consideration will be given to any written comments timely 
submitted to Customs, including comments on the clarity of this 
proposed rule and how it may be made easier to understand. Comments 
submitted will be available for public inspection in accordance with 
the Freedom of Information Act (5 U.S.C. 552), Sec. 1.4, Treasury 
Department Regulations (31 CFR 1.4), and Sec. 103.11(b), Customs 
Regulations (19 CFR 103.11(b)), on regular business days between the 
hours of 9:00 a.m. and 4:30 p.m. at the Regulations Branch, Office of 
Regulations and Rulings, U.S. Customs Service, 1300 Pennsylvania 
Avenue, NW., 3rd Floor, Washington, DC.

Regulatory Flexibility Act and Executive Order 12866

    Pursuant to the provisions of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), it is certified that the proposed amendments, if 
adopted, will not have a significant economic impact on a substantial 
number of small entities. The administrative procedures reflected in 
the proposed regulatory amendments are designed to provide advance 
advice regarding the applicability of the Customs and related laws to 
planned import transactions and to assist in the proper application of 
those laws to current transactions, and direct involvement of the 
public in those administrative procedures is voluntary in nature. 
Accordingly, the proposed amendments are not subject to the regulatory 
analysis or other requirements of 5 U.S.C. 603 and 604. Furthermore, 
this document does not meet the criteria for a ``significant regulatory 
action'' as specified in E.O. 12866.

Paperwork Reduction Act

    The collections of information contained in this notice of proposed 
rulemaking have been submitted to the Office of Management and Budget 
(OMB) for review in accordance with the Paperwork Reduction Act of 1995 
(44 U.S.C. 3507).
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless the collection of 
information displays a valid control number.
    The collections of information in these proposed regulations are in 
Secs. 177.11, 177.14, 177.17, 177.18, 177.20, 177.21, 177.32, 177.33, 
177.41, 177.43 and 177.55. The information to be collected is required 
in connection with the consideration of requests for, and issuance of, 
rulings or other written advice from Customs regarding the application 
of the Customs and related laws to current or future transactions, in 
connection with appeals and modifications or revocations of prior 
Customs rulings or treatments, or in connection with the issuance of 
country-of-origin advisory rulings and final determinations relating to 
Government procurement. Failure to provide the required information may 
preclude issuance of the requested advice by Customs or may preclude 
the application of the requested relief or other action by Customs. The 
likely respondents are individuals and business or other for-profit 
institutions, including partnerships, associations, and corporations, 
and their authorized agents.
    Estimated total annual reporting and/or recordkeeping burden: 
128,000 hours.
    Estimated average annual burden per respondent/recordkeeper: 10 
hours.
    Estimated number or respondents and/or recordkeepers: 12,200.
    Estimated annual number of responses: 1.
    Comments on the collection of information should be sent to the 
Office of Management and Budget, Attention:

[[Page 37379]]

Desk Officer for the Department of the Treasury, Office of Information 
and Regulatory Affairs, Washington, DC 20503. A copy should also be 
sent to the Regulations Branch, Office of Regulations and Rulings, U.S. 
Customs Service, 1300 Pennsylvania Avenue, NW., Washington, DC 20229. 
Comments should be submitted within the time frame that comments are 
due regarding the substance of the proposal.
    Comments are invited on: (a) Whether the collection of information 
is necessary for the proper performance of the functions of the agency, 
including whether the information shall have practical utility; (b) the 
accuracy of the agency's estimate of the information collection burden; 
(c) ways to enhance the quality, utility, and clarity of the 
information to be collected; (d) ways to minimize the information 
collection burden on respondents, including through the use of 
automated collection techniques or other forms of information 
technology; and (e) estimates of capital or start up costs and costs of 
operations, maintenance, and purchase of services to provide 
information.

Drafting Information

    The principal author of this document was Francis W. Foote, Office 
of Regulations and Rulings, U.S. Customs Service. However, personnel 
from other offices participated in its development.

List of Subjects in 19 CFR Part 177

    Administrative practice and procedure, Confidential business 
information, Customs duties and inspection, Government procurement, 
Reporting and recordkeeping requirements, Rulings.

Proposed Amendments to the Regulations

    For the reasons stated above, it is proposed to amend Part 177 of 
the Customs Regulations (19 CFR Part 177) as set forth below:

PART 177--ADMINISTRATIVE RULINGS

    1. The authority citation for Part 177 is revised to read as 
follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 22, 
Harmonized Tariff Schedule of the United States), 1502, 1624, 1625.

    1a. Subpart A, consisting of Sec. 177.0, is removed.
    1b. Subpart B, consisting of Secs. 177.21 through 177.31, is 
redesignated as subpart E, consisting of Secs. 177.51 through 177.61.
    1c. New subparts A through D are added to read as follows:
Subpart A--General Provisions
Sec.
177.1   Overview of the part 177 ruling and related processes.
177.2   Definitions.
Subpart B--Advice on Prospective Transactions
177.11   Preparation and submission of requests for prospective 
rulings.
177.12   Nonconforming requests.
177.13   Conferences on issues.
177.14   Change in status of transaction.
177.15   Withdrawal of requests.
177.16   Situations in which no prospective ruling will be issued.
177.17   Issuance of prospective rulings.
177.18   Requirement to bring rulings to the attention of field 
offices.
177.19   Effect of prospective rulings.
177.20   Appeal of prospective rulings.
177.21   Modification or revocation of prospective rulings, internal 
advice decisions, protest review decisions, and previous treatment 
of substantially identical transactions.
177.22   Established and uniform practice.
177.23   Limitation of court decisions.
177.24   Availability of rulings to the public.
Subpart C--Internal Advice Procedure
177.31   Requests for advice by Customs offices in general.
177.32   Requests for advice on current transactions.
177.33   Appeal of internal advice decisions on current 
transactions.
177.34   Availability of internal advice decisions to the public.
Subpart D--Disclosure of Confidential Business Information
177.41   Treatment of requests for confidentiality.
177.42   Time limitation.
177.43   Renewal of confidential treatment.
177.44   Disclosure pursuant to the FOIA.

Subpart A--General Provisions


Sec. 177.1  Overview of the part 177 ruling and related processes.

    (a) General--(1) What does part 177 cover? This part covers:
    (i) The issuance by Customs of written advice on future 
(prospective) Customs transactions and the procedures Customs will 
follow when limiting court decisions or when changing an established 
and uniform practice involving tariff treatment (subpart B of this 
part);
    (ii) The issuance by Customs of written advice on current Customs 
transactions (subpart C of this part);
    (iii) The treatment of requests for confidential treatment of 
business information submitted to Customs under subpart B or C of this 
part (subpart D of this part); and
    (iv) The issuance of country-of-origin advisory rulings and final 
determinations relating to Government procurement (subpart E of this 
part).
    (2) What is a Customs transaction? A Customs transaction is an 
importation or other action that involves the application of the 
Customs and related laws (see also the definition of ``Customs 
transaction'' in Sec. 177.2).
    (3) What does part 177 not cover? The provisions of this part do 
not apply to:
    (i) Administrative rulings, determinations, or decisions requested 
or issued under procedures set forth in other parts within this 
chapter, including, but not limited to, those set forth in:
    (A) Part 12 (relating to submissions of proof of admissibility of 
articles detained under section 307 of the Tariff Act of 1930 (19 
U.S.C. 1307));
    (B) Part 103 (relating to disclosure of information in Customs 
files);
    (C) Part 133 (certain enforcement actions relating to intellectual 
property rights);
    (D) Subpart C of part 152 (relating to determinations concerning 
the dutiable value of merchandise by Customs field officers);
    (E) Part 162 (relating to the calculation of loss of revenue in 
penalty cases);
    (F) Part 171 (relating to fines, penalties, and forfeitures);
    (G) Part 172 (relating to liquidated damages);
    (H) Part 174 (relating to protests);
    (I) Part 175 (relating to petitions filed by American 
manufacturers, producers, or wholesalers pursuant to section 516 of the 
Tariff Act of 1930, as amended);
    (J) Part 181 (relating to the North American Free Trade Agreement); 
and
    (K) Part 191 (relating to general and specific manufacturing 
drawback rulings); and
    (ii) Other requests for decisions of an operational, 
administrative, or investigative nature.
    (b) Advice on prospective transactions under subpart B of this 
part.
    (1) How does Customs provide written advice on prospective 
transactions? Customs provides written advice on prospective Customs 
transactions under subpart B of this part through the issuance of 
rulings (see the definition of ``ruling'' in Sec. 177.2) either in 
response to a request made under Sec. 177.11 or in accordance with 
Sec. 177.17(b).
    (2) What is the main purpose of a prospective ruling? A ruling 
issued under subpart B of this part informs the recipient of the legal 
consequences of a Customs transaction (for example, the tariff 
classification and rate of duty that apply to an article to be imported 
into the United States from another country) before the transaction 
takes place.
    (3) Does a prospective ruling have specific legal significance and 
effect for

[[Page 37380]]

Customs and the recipient? Yes. Issuance of a ruling under subpart B of 
this part means that Customs is legally bound by the conclusion reached 
in it. This guarantees that Customs will apply that result to the 
recipient's transaction once it becomes a current transaction by virtue 
of importation or other action (absent a subsequent modification or 
revocation or superseding legal event that has taken effect). For more 
information on this point, see Sec. 177.19.
    (4) Does a prospective ruling impose any obligation on the 
recipient? Yes. The ruling recipient must follow the result of the 
prospective ruling when entering the merchandise in question. A failure 
to do so could result in the assessment of a monetary penalty. For more 
information on this point, see Sec. 177.18.
    (5) Who may request a prospective ruling? A ruling regarding tariff 
classification may be requested under subpart B of this part by any 
person who is an importer of merchandise into, or an exporter of 
merchandise to, the United States. A ruling may be requested in a non-
classification context under subpart B of this part by any person who 
has a direct and demonstrable interest in the question or questions 
presented under the Customs and related laws. An authorized agent (see 
the definition of ``authorized agent'' in Sec. 177.2) may submit a 
ruling request on behalf of an importer or other interested person.
    (6) What matters may be the subject of a request for a prospective 
ruling? A request for a ruling under subpart B of this part may cover 
any issue under the Customs and related laws that falls within the 
subject matter jurisdiction of the Headquarters Office or the National 
Commodity Specialist Division, including the following:
    (i) Tariff classification under the Harmonized Tariff Schedule of 
the United States;
    (ii) Country of origin determinations;
    (iii) Country of origin marking;
    (iv) Valuation;
    (v) Entry procedures;
    (vi) Customs brokers;
    (vii) Drawback;
    (viii) Duty-preference programs;
    (ix) Duty-deferral programs;
    (x) Transportation and conveyances; and
    (xi) Intellectual property rights.
    (7) When will Customs not issue a prospective ruling? Customs will 
not issue a prospective ruling in any of the circumstances described in 
Sec. 177.16.
    (8) Does it matter whether the prospective ruling is issued by the 
Headquarters Office or by the National Commodity Specialist Division? 
No. Regardless of which office issues the prospective ruling, Customs 
and the recipient must follow the conclusion reached in the ruling 
(unless it has been superseded, modified, or revoked and the 
supersession, modification or revocation has taken effect) and any 
person who is not the recipient of the prospective ruling may choose to 
rely on it when it is reasonable to do so. For more information on 
these points, see Sec. 177.19.
    (9) Can Customs issue prospective rulings on its own initiative? 
Yes. These rulings are referred to as Customs-initiated rulings and 
have the same legal effect as rulings issued under subpart B of this 
part in response to a request. For more information on Customs-
initiated rulings, see Sec. 177.17(b).
    (10) Does the recipient of a prospective ruling have any recourse 
under subpart B of this part if he disagrees with the result reached in 
the ruling? Yes. The recipient may appeal the prospective ruling in 
accordance with Sec. 177.20.
    (11) Are prospective rulings available for review and use by the 
general public after issuance? All prospective rulings are made 
available to the general public after issuance (see Sec. 177.24).
    (12) Can Customs modify or revoke a prospective ruling after 
issuance? Yes. The procedures for modifying or revoking prospective 
rulings are set forth in Sec. 177.21. A recipient of a prospective 
ruling that has been modified or revoked will receive actual or 
constructive notice of that fact. If Customs contemplates modifying or 
revoking a prospective ruling more than 60 calendar days after it was 
issued, the recipient of that ruling will be given an opportunity to 
comment on the contemplated action before Customs makes a final 
decision. Public notice with opportunity to comment will be published 
in the Customs Bulletin.
    (13) If a prospective ruling is modified or revoked, what are the 
consequences? A prospective ruling that has been modified or revoked is 
no longer binding on Customs or the recipient and no longer has 
relevance for third parties and therefore should not be followed. See 
Sec. 177.21 for more information on the modification or revocation of 
rulings.
    (14) If Customs has treated a person's transactions consistently in 
a certain way (for example, applied a specific tariff classification to 
imported merchandise) and then contemplates issuance of a prospective 
ruling that would change that treatment, will Customs provide the 
affected person with an opportunity to comment? Yes. When Customs has 
reason to believe that a contemplated prospective 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 and the affected 
person will have an opportunity to comment. See Sec. 177.21 for more 
information on the modification or revocation of treatment previously 
accorded to transactions.
    (15) Will Customs issue a prospective rulings that is orally 
requested? No. Customs will not issue a prospective ruling in response 
to an oral request. Oral opinions or advice of Customs personnel are 
not binding on Customs. However, oral inquiries may be made to Customs 
offices regarding existing rulings, the scope of existing rulings, the 
types of transactions with respect to which Customs will issue rulings, 
the scope of the rulings which may be issued, or the procedures to be 
followed in submitting ruling requests, as described in this part.
    (16) Will Customs issue a ruling in response to a current 
transaction? Yes. This is referred to as the internal advice procedure. 
If a question arising in connection with a Customs transaction already 
before a Customs office (a current transaction) cannot be resolved by 
that office in accordance with existing principles and precedents, the 
Customs office may forward the question for advice under the internal 
advice procedure in accordance with subpart C of this part. See also 
paragraph (c) of this section.
    (c) Advice on current transactions under subpart C of this part.
    (1) What is the internal advice procedure? The internal advice 
procedure under subpart C of this part involves the issuance of advice 
by the National Commodity Specialist Division or by the Headquarters 
Office to a Customs field office regarding the application of the 
Customs and related laws to a specific Customs transaction that has 
already come before that Customs field office (a current transaction). 
A completed Customs transaction may not be the subject of the internal 
advice procedure.
    (2) How is the procedure started? The internal advice procedure may 
be started by the Customs field office on its own initiative or as a 
result of a request for the procedure made by an importer or other 
interested person.
    (3) Does an importer or other interested person have a right to the 
internal advice procedure? No. While an importer or other interested 
person may request that a Customs field office seek internal advice, 
submission of the

[[Page 37381]]

internal advice request is generally at the discretion of the Customs 
field office. However, there are some circumstances in which internal 
advice must be requested and some circumstances in which internal 
advice may not be requested. In addition, the procedure regarding 
further review of protests may be available. For more information on 
the standards for requesting internal advice, see Sec. 177.32(a)-(c). 
For more information on the procedures for the further review of 
protests, see part 174 of this chapter.
    (4) Does an importer or other interested person have an opportunity 
to participate in the procedure? Yes. An importer or other interested 
person who requests the internal advice procedure is required to 
present his views on the matter at issue in his written request (see 
Sec. 177.32(d)). If the Customs field office starts the procedure on 
its own initiative, the importer or other interested person will be 
given an opportunity to present its written views on the matter. In 
addition, the importer or other interested person may ask for a 
conference with Customs to discuss the matter (see Sec. 177.32(f)(3)).
    (5) How is the internal advice decision issued? The internal advice 
decision is issued in writing to the Customs field office, and a copy 
of the decision is provided to the importer or other interested person 
at that time.
    (6) Does the importer or other interested person have any recourse 
under subpart C of this part if he disagrees with the result reached in 
the internal advice decision? Yes. The recipient may appeal the 
decision in accordance with Sec. 177.33.
    (7) What is the legal effect of an internal advice decision? As in 
the case of a prospective ruling issued under subpart B of this part, 
an internal advice decision issued under subpart C of this part 
represents the official position of Customs regarding the transaction 
described in it. For more information on this point, see 
Sec. 177.32(g)(1).
    (8) Are internal advice decisions available for review and use by 
the general public after issuance? Internal advice decisions issued 
under subpart C of this part constitute rulings as that term is defined 
for purposes of that subpart. Accordingly, as in the case of 
prospective rulings issued under subpart B of this part, internal 
advice decisions are made available to the general public after 
issuance (see Sec. 177.34).
    (9) What utility does an internal advice decision have for a person 
other than the importer or other interested person? A person may rely 
on an internal advice decision issued on a current transaction of 
another person. For more information on this point, see 
Sec. 177.32(g)(2).
    (10) Are there circumstances in which an internal advice decision 
should no longer be followed? Yes. The modification and revocation 
procedures and requirements that apply to prospective rulings issued 
under subpart B of this part are also applicable to internal advice 
decisions issued under subpart C of this part. Accordingly, an internal 
advice decision that has been modified or revoked by operation of law 
or by a prospective ruling issued under Sec. 177.21 no longer 
represents the official position of Customs and therefore should not be 
followed by the Customs field office or by the importer or other 
interested person or by third parties. See Sec. 177.21 for more 
information on the modification or revocation of internal advice 
decisions.


Sec. 177.2  Definitions.

    For purposes of subparts A through D of this part:
    (a) An authorized agent is a person expressly authorized by a 
principal to act on his behalf and may be an attorney at law, a 
licensed customs broker (see part 111 of this chapter), or any person 
who is not an attorney at law or a licensed customs broker provided 
that the matter on which the person represents his principal under this 
part does not constitute ``customs business'' as defined in 19 U.S.C. 
1641(a)(2). A ruling request submitted by an authorized agent must 
include a statement describing the authority under which the request is 
made. Any person appearing before Customs as an authorized agent in 
connection with a ruling request may be required to present evidence of 
his authority to represent the principal.
    (b) The term Customs and related laws includes any provision of the 
Tariff Act of 1930, as amended (including the Harmonized Tariff 
Schedule of the United States), or the Customs Regulations, or any 
provision contained in other laws (including the navigation laws), 
regulations, treaties, orders, proclamations, or other agreements 
administered by Customs.
    (c) A Customs transaction is an act or activity to which the 
Customs and related laws apply. There are three basic types of Customs 
transactions:
    (1) A prospective Customs transaction is one that has not resulted 
in any arrival or in the filing of any entry or other document or in 
any other act to bring the transaction, or any part of it, under the 
jurisdiction of any Customs office;
    (2) A current Customs transaction is one in which there has been an 
arrival or the filing of an entry or other document or any other act 
which brings the transaction, or any part of it, under the jurisdiction 
of any Customs office, other than the filing of a ruling request under 
this part or the filing of a request for other administrative action 
under a provision set forth elsewhere in this chapter; and
    (3) A completed Customs transaction is one, other than a ruling 
issued under this part, which has been acted upon by a Customs office 
and with respect to which that office has issued a determination which 
is final in nature, but is (or was) subject to appeal, petition, 
protest, or other review, as provided in the applicable Customs and 
related laws and regulations.
    (d) The term Headquarters Office means the Office of Regulations 
and Rulings located at Headquarters, United States Customs Service, 
Washington, DC.
    (e) An information letter is a written statement issued by the 
Headquarters Office that does no more than call attention to a well-
established interpretation or principle of the Customs and related 
laws, without applying it to a specific set of facts. If Customs 
believes that general information may be of some benefit to the person 
making the request, an information letter may be issued in response to 
a request for a ruling when:
    (1) The request suggests that general information, rather than a 
ruling, is actually being sought;
    (2) The request is incomplete or otherwise fails to meet the 
requirements for a ruling set forth in this part; or
    (3) The ruling requested cannot be issued for any other reason.
    (f) The National Commodity Specialist Division is a Customs office 
located in the port of New York that is an organizational part of the 
Customs Office of Regulations and Rulings and that includes among its 
functions the issuance of prospective rulings and internal advice 
decisions under this part.
    (g) A person includes an individual, corporation, partnership, 
association, or other entity or group.
    (h) A ruling is a written statement issued by the Headquarters 
Office or by the Customs National Commodity Specialist Division or by 
the appropriate field office of Customs as provided in subpart B or 
subpart C of this part that sets forth the official position of Customs 
on the interpretation and application of the provisions of the Customs 
and related laws under a specific set of facts. A ruling may be

[[Page 37382]]

issued in response to a specific request and be set forth in a letter 
addressed to the person making the request or his authorized agent. A 
ruling also may be issued in the form of a letter to a Customs field 
office or person in the absence of a specific request. Rulings provided 
for under subpart B of this part are generally prospective in nature. 
Rulings provided for under subpart C of this part generally relate to 
current transactions and consist of internal advice decisions issued to 
Customs offices.

Subpart B--Advice on Prospective Transactions


Sec. 177.11  Preparation and submission of requests for prospective 
rulings.

    (a) Form and address. A request for a ruling on a prospective 
Customs transaction should be in the form of a signed letter written in 
the English language. Requests for prospective rulings must be 
submitted as follows:
    (1) To the National Commodity Specialist Division. A request for a 
ruling involving a matter identified in paragraph (b)(3)(ii) or 
paragraph (b)(3)(iii) of this section, other than country of origin 
determinations involving duty-preference programs under General Notes 
3(a)(iv) and 4 through 11, Harmonized Tariff Schedule of the United 
States (HTSUS), must be submitted to the Director, National Commodity 
Specialist Division, Office of Regulations and Rulings, United States 
Customs Service, 6 World Trade Center, New York, New York 10048; and
    (2) To the Headquarters Office. A request for a ruling on country 
of origin involving duty-preference programs under General Notes 
3(a)(iv) and 4 through 11, HTSUS, or on any matter identified in 
paragraphs (b)(3)(iv) through (b)(3)(vii) of this section, must be 
submitted to the Office of Regulations and Rulings, United States 
Customs Service, Washington, DC 20229.
    (b) Content--(1) General. Each request for a ruling on a 
prospective Customs transaction must contain a complete statement of 
all facts and other information relating to the transaction. A ruling 
is issued on the basis of the facts presented to Customs. If an issued 
ruling was based on inaccurate or incomplete information regarding a 
material fact, it will not be applied to the transaction for which it 
was intended.
    (2) Names and addresses. The ruling request must specify the names, 
addresses, and other appropriate identifying information of all 
interested parties.
    (3) Description of transaction--(i) General. The Customs 
transaction to which the ruling request relates must be described in 
sufficient detail with all material and relevant facts to permit the 
proper interpretation and application of relevant Customs and related 
laws.
    (ii) Tariff classification rulings. If the transaction involves the 
importation of an article for which a ruling is requested as to its 
proper classification under the provisions of the Harmonized Tariff 
Schedule of the United States, including special program provisions or 
other provisions under Chapter 98 or Chapter 99, the ruling request 
should include a full and complete description of the article, 
including the country of origin of the article and any of its 
components, if known, and any applicable descriptive details required 
to be included on an invoice for such article under Sec. 141.89 of this 
chapter, a description of the manufacturing processes used to produce 
the article and the countries in which those processes took place, and 
information as to the article's principal use in the United States, its 
commercial, common, or technical designation, and, where the article is 
composed of two or more materials, the relative quantity (by weight and 
by volume) and value of each. The ruling request should also note, 
whenever germane, the purchase price of the article, and its 
approximate selling price in the United States. Individual requests for 
rulings may involve a maximum of five (5) merchandise items, all of 
which must be of the same class or kind.
    (iii) Country of origin and marking rulings--(A) Country of origin. 
If the ruling request involves a determination of the country of origin 
of an article that incorporates processing operations and/or 
constituent materials attributable to more than one country (including 
the United States), the ruling request should include a full and 
complete description of:
    (1) The article and/or material prior to the processing in each 
country, including its tariff classification, if known;
    (2) Each processing operation performed in each country, the type 
of machinery used, and the time expended during the processing; and
    (3) The article after the processing in each country, including its 
tariff classification, if known.
    (B) Marking issues not involving origin--(1) Manner of marking. If 
the ruling request involves a determination of the acceptability of a 
manner of marking (for example, whether a proposed marking is 
sufficiently conspicuous or permanent), a sample of the article is 
generally required. However, if a sample is not available, a ruling 
will be issued on a submitted photograph if the photograph adequately 
demonstrates the proposed marking.
    (2) Request for marking exception. If the ruling request involves 
the application of one or more exceptions from marking, all facts 
regarding the requested exception must be furnished. For example, a 
request involving a proposal to mark a container rather than the 
article contained therein should include: A complete description of the 
article and the container; a statement indicating whether or not the 
article will be repacked after importation; and a statement of how the 
article is to be used and to whom it is to be sold.
    (iv) Valuation rulings--(A) Required information. Each request for 
a ruling on the proper method of valuation or on any other issue 
relating to the appraised value of imported merchandise under 19 U.S.C. 
1401a should contain the following:
    (1) A narrative description of the import transaction;
    (2) A brief description of the imported merchandise;
    (3) The names of all parties involved in any sale or sales of the 
imported merchandise, including the manufacturer, the seller (if 
different from the manufacturer), the purchaser, the importer, the 
consignee, and any intermediaries (for example, middlemen acting as 
buying agents, selling agents, or sellers), or, if the imported 
merchandise is not sold, a detailed description of the circumstances 
surrounding the import transaction and the parties involved;
    (4) A detailed description of the roles of the various parties, 
including the intermediaries;
    (5) A description of the relationship, if any, of the various 
parties;
    (6) If a sale is involved, the terms of sale, the purchase price, 
and the method of payment;
    (7) How, when, and where the merchandise will be shipped and the 
place from which it will be shipped (to the extent known, the expected 
movement of the merchandise from the place of manufacture to its 
ultimate destination in the United States should be described);
    (8) A statement regarding whether or not any additional payments 
are made by the buyer to the seller or to a party related to the seller 
over and above the purchase price (and if so, a description of what 
each such payment is for);
    (9) A statement regarding whether or not any assists, as described 
in subpart

[[Page 37383]]

E of part 152 of this chapter, were furnished;
    (10) If there is more than one sale of the imported merchandise, 
the details concerning each sale;
    (11) If the person requesting the ruling does not have any relevant 
information specified in this paragraph (b)(3)(iv)(A), a statement 
identifying that missing information; and
    (12) Any additional information that is relevant to the particular 
issue presented (the provisions of subpart E of part 152 of this 
chapter should be consulted in order to determine what additional 
information might be relevant).
    (B) Documentary evidence. Each request for a ruling on the proper 
method of valuation or on any other issue relating to the appraised 
value of imported merchandise under 19 U.S.C. 1401a should include 
copies of all relevant documents pertaining to the issue presented, 
including purchase orders, sales contracts, invoices, bills of lading, 
buying agency agreements, and royalty agreements (a ruling request 
involving the dutiability of royalty payments must include copies of 
any written royalty agreement pertaining to the payment of such 
royalties and any written supply agreement pertaining to the sale of 
the imported merchandise).
    (v) Rulings on entry procedures, Customs brokers, drawback, and 
duty-deferral programs--(A) Required information. Each request for a 
ruling on entry procedures, issues concerning Customs brokers, drawback 
(other than applications for rulings under Secs. 191.7 and 191.8 of 
this chapter), and duty-deferral programs (foreign trade zones, 
temporary importations under bond, and Customs bonded warehouses, 
including duty-free sales enterprises) should include the following:
    (1) A complete statement of the specific statutory and regulatory 
provisions believed to be at issue, if known;
    (2) Citations to the specific judicial and administrative decisions 
believed to address the issue involved in the transaction;
    (3) A complete description of the transaction. The Customs ports at 
which the transaction is to occur should be identified. The anticipated 
time when the transaction will take place also should be stated;
    (4) If the issue involves a transfer of merchandise, then each 
transfer must be described completely and each party to the transfer 
must be identified;
    (5) If the issue involves the adequacy of records, those records 
must be described in detail, with particular emphasis on describing how 
the subject merchandise will be recorded and identifying the 
recordkeeper and where the records will be stored. If the records 
involve codes, the codes must be defined;
    (6) If the ruling request involves information that is intended to 
be filed with Customs when the transaction occurs, the request must 
state whether the information is to be filed in documentary form or 
electronically;
    (7) If the issue involves merchandise in a foreign trade zone, the 
intended zone status of the merchandise must be stated;
    (8) If the issue involves the processing of merchandise, a complete 
description of the processing and of the merchandise at the start and 
end of the processing must be provided. The ruling request must 
describe how the merchandise at the end of the process differs in name, 
use, or characteristics from the merchandise at the start of the 
process. If the processing involves a chemical reaction or a mixture of 
chemicals, the chemical formulas must be provided; and
    (9) If the issue involves commercial interchangeability of imported 
merchandise and merchandise to be substituted for that merchandise 
under 19 U.S.C. 1313(j)(2), the ruling request must include information 
on published governmental or industry standards, tariff classification, 
part numbers, and value for both the imported merchandise and the 
substituted merchandise. The request must include information as to 
whether, and if so how, these criteria are used as terms of sale or 
purchase of the merchandise.
    (B) Documentary evidence. Each request for a ruling on entry 
procedures, issues concerning Customs brokers, drawback, and duty-
deferral programs must include documentary evidence which illustrates 
the information required under paragraph (b)(3)(v)(A) of this section. 
For example:
    (1) If the issue involves the sale or purchase of merchandise, 
documentary evidence would include a complete representative sample of 
the documents covering the sale or purchase;
    (2) If the issue involves inventory procedures, documentary 
evidence would include a complete representative sample of the 
inventory records involved;
    (3) If the issue involves the processing of merchandise, 
documentary evidence would include photographs or drawings of the 
merchandise at each stage of the process and may include flow charts, 
if appropriate; and
    (4) If the issue involves the delivery of merchandise from a duty-
free sales enterprise, documentary evidence would include a map or 
drawing to scale of the store location with respect to the 
international border and photographs showing the representative amount 
of traffic during business hours.
    (vi) Rulings on transportation and conveyances--(A) Required 
information. Each request for a ruling involving transportation and 
conveyance issues should include the following:
    (1) A complete statement of the specific statutory and regulatory 
provisions believed to be at issue;
    (2) Citations to the specific judicial and administrative decisions 
believed to address the issue involved in the transaction;
    (3) A complete description of the transaction. The Customs ports at 
which, or nearest to which, the transaction is to occur should be 
identified. The anticipated time when the transaction will take place 
also should be stated;
    (4) If the issue involves a vessel, the ruling request must 
identify the vessel, its country of build, flag, and, if a vessel of 
the United States, any endorsements on the vessel's documentation;
    (5) If the issue involves vessel or air cabotage, a complete 
itinerary must be provided (that is, the ruling request must describe 
the location of all points in any movement involved, as well as any 
activity which would occur at each point). If the issue involves 
passengers, there must be a general description of the types of 
passengers involved and of their relationship to the conveyance. If the 
issue involves merchandise, the merchandise must be described;
    (6) If the issue involves a vehicle, the ruling request must 
identify the vehicle owner's principal base of operations;
    (7) If the issue involves fisheries, the ruling request must 
identify all activities, locations, and species of fish involved; and
    (8) If the issue involves instruments of international traffic, the 
ruling request must state the numbers of instruments that are expected 
to be used and must describe the instrument in detail, including how 
the instrument is suitable for, and capable of, reuse.
    (B) Documentary evidence. Each request for a ruling on 
transportation and conveyance issues must include documentary evidence 
which illustrates the information required under paragraph 
(b)(3)(vi)(A) of this section. If the issue involves the movement of a 
conveyance, documentary evidence would include maps showing the 
movement. If the issue involves an instrument of international traffic, 
documentary evidence would includes

[[Page 37384]]

photographs or drawings of the instrument.
    (vii) Rulings related to intellectual property rights--(A) General. 
If the transaction involves the importation of an article or articles 
for which a ruling is requested as to whether the proposed importation 
would infringe on a registered trademark or copyright or a recorded 
trade name, the ruling request should include a full and complete 
description of the article and a sample together with a description of 
the transaction to which the ruling request relates.
    (B) Gray market goods. If the transaction involves the importation 
of a gray market article (as defined in Sec. 133.23(a) of this 
chapter), in addition to the information specified in paragraph 
(b)(3)(vii)(A) of this section, the ruling request should include the 
country of origin of the article(s), the name(s) of the 
manufacturer(s), and, if known, a statement as to whether the trademark 
is owned outside of the United States by the U.S. trademark owner or by 
a parent, subsidiary, or other party otherwise subject to common 
ownership or control with the U.S. owner.
    (4) Samples. Each request for a ruling regarding the status of an 
article under any Customs or related law affecting the importation or 
arrival of that article should be accompanied by photographs, drawings, 
or other pictorial representations of the article and, whenever 
possible, by a sample article, unless a precise description of the 
article is not essential to the ruling requested. Any article 
consisting of materials in chemical or physical combination for which a 
laboratory analysis has been prepared by or for the manufacturer should 
include a copy of that analysis. A sample submitted in connection with 
a request for a ruling becomes a part of the Customs file in the matter 
and will be retained until the ruling is issued or the ruling request 
is otherwise disposed of. If the return of the sample is desired, the 
ruling request should say so and should provide for a means of return 
that will entail no cost to Customs for packing materials and shipping 
fees. A sample should only be submitted with the understanding that all 
or a part of it may be damaged or consumed in the course of 
examination, testing, analysis, or other actions undertaken in 
connection with the ruling request. All samples not returned or 
retained by Customs for official government use or consumed in the 
course of examination, testing, or analysis will be donated to a 
charity, destroyed, or otherwise disposed of according to law 90 days 
after issuance of the ruling or other disposition of the ruling 
request.
    (5) Related documents. If the question or questions presented in 
the ruling request directly relate to matters set forth in any invoice, 
contract, agreement, or other document, a copy of the document must be 
submitted with the request. (Original documents should not be submitted 
inasmuch as any documents or exhibits furnished with the ruling request 
become a part of the Customs file in the matter and cannot be returned 
except as otherwise provided in Sec. 177.12 or Sec. 177.41.) The 
relevant facts reflected in any documents submitted, and an explanation 
of their bearing on the question or questions presented, must be 
expressly set forth in the ruling request.
    (6) Prior or current transactions. Each ruling request must 
contain, or provide as a signed attachment to the request, the 
following certification by a person having knowledge of the facts:

    I certify that, to the best of my knowledge and belief, and 
except as otherwise stated herein, the transaction described in this 
ruling request, or one similar, identical, or related to it, is not 
currently being considered by any Customs office and will not be 
pending before any Customs office by virtue of a request for a 
prospective ruling or a request for internal advice or a protest 
filed simultaneously with this request and is not pending before any 
other Federal agency or before any Federal court, and that, to the 
best of my knowledge and belief, all information provided in 
connection with this ruling request is accurate and complete.

    (7) Statement of position. If the ruling request asks that a 
particular determination or conclusion be reached in the ruling letter, 
a statement must be included in the request setting forth the basis for 
that determination or conclusion, together with a citation of all 
relevant supporting authority.
    (8) Confidential information. If the person submitting a ruling 
request wants Customs to accord confidential treatment to any 
information submitted in connection with the ruling request, a written 
request for that confidential treatment must be made when the 
information is submitted to Customs and must conform to the 
requirements of subpart D of this part.
    (9) Conferences. If a person submitting a ruling request wants an 
opportunity to have a conference if issuance of an adverse ruling is 
contemplated (see Sec. 177.13), a statement to that effect must be 
included in the ruling request.
    (c) Signing; instructions as to reply. The ruling request must be 
signed by a person entitled to make the request, as provided in 
Sec. 177.1(b)(5). A ruling requested by a principal or authorized agent 
may direct that the ruling letter be addressed to the other.


Sec. 177.12  Nonconforming requests.

    (a) Notice of nonconformity. If a ruling request does not conform 
to the requirements of this subpart, the person submitting the ruling 
request will be so notified in writing, and the requirements that have 
not been met will be pointed out in the notice.
    (1) Request submitted to the Headquarters Office. In the case of a 
nonconforming ruling request submitted to the Headquarters Office, the 
person will be given 30 calendar days from the date of the notice (or 
such longer period as the notice may provide) to supply any additional 
information requested in the notice or to otherwise conform the ruling 
request to the requirements referred to in the notice. The file 
pertaining to a nonconforming ruling request submitted to the 
Headquarters Office will be administratively closed if the ruling 
request is not brought into conformity with the provisions of this part 
within the period of time allowed.
    (2) Request submitted to the National Commodity Specialist 
Division. In the case of a ruling request made to the Director, 
National Commodity Specialist Division, a failure to conform to the 
requirements of this part will result in the immediate return of the 
ruling request with the notice specifying the deficiencies, and the 
file pertaining to the nonconforming ruling request will be closed with 
no further action taken on the request but without prejudice to 
resubmission.
    (b) Submission to the wrong office. If a ruling request is not 
submitted to the proper Customs office specified in Sec. 177.11(a), 
Customs will not for that reason alone treat it as a nonconforming 
request under this section. However, there will be a delay in 
processing the request while it is forwarded to the proper office.


Sec. 177.13  Conferences on issues.

    (a) General. Conferences on issues presented in ruling requests 
under this subpart will be held only in connection with rulings to be 
issued by the Headquarters Office and only in circumstances in which 
either the Headquarters Office contemplates issuance of a ruling 
adverse to the ruling requester's position or the Headquarters Office 
for any other reason believes that a conference is necessary. 
Conferences are scheduled for the purpose of affording the parties an 
opportunity to freely and openly discuss the matters set forth in the 
ruling request. Accordingly, the parties will not be bound by any

[[Page 37385]]

argument or position advocated or agreed to, expressly or by 
implication, during the conference unless either party subsequently 
agrees to be so bound in writing. The conference will not conclude with 
the issuance of a ruling.
    (b) National Commodity Specialist Division rulings. If a ruling 
request filed with the Director, National Commodity Specialist 
Division, reflects a desire for a conference and it is determined after 
review of the issue or issues raised that the proposed ruling will be 
adverse to the ruling requester's position, and if the different 
positions cannot be resolved through telephonic or other informal 
discussions between the ruling requester and the National Commodity 
Specialist Division, the case will be referred to the Headquarters 
Office for processing.
    (c) Time, place, and number of conferences. If a request for a 
conference is granted, the person making the request will be notified 
of the time and place of the conference. No more than one conference 
with respect to the matters set forth in a ruling request will be 
scheduled unless, in the opinion of the Headquarters Office, additional 
conferences are necessary.
    (d) Representation. A person whose request for a conference has 
been granted may appear at the conference in person and may be 
accompanied by counsel or other representatives or, in lieu of a 
personal appearance, the person may designate an authorized agent to 
appear at the conference in his place.
    (e) Additional information presented at conference. It will be the 
responsibility of the person submitting the ruling request to provide 
for inclusion in the Headquarters Office file in the matter a written 
record setting forth any and all additional documents, exhibits, or 
other information introduced during the conference to the extent that 
person considers the material relevant to the consideration of the 
ruling request. Any further documentation, exhibits, or other 
information to be submitted as a result of the conference must be 
submitted to the Headquarters Office within 30 calendar days following 
the conference or within any longer period as the Headquarters Office 
may authorize.


Sec. 177.14  Change in status of transaction.

    Each person who submitted a ruling request in connection with a 
prospective Customs transaction must immediately advise in writing the 
Customs office in which the ruling request is pending when any 
transaction described in the ruling request becomes a current 
transaction or when the person subsequently learns that a summons has 
been filed in the U.S. Court of International Trade regarding the same 
issue as that involved in the ruling request. In addition, any person 
who is engaging in a current Customs transaction and who has knowledge 
that a ruling has been previously requested with respect to that 
transaction must advise the Customs field office in which the current 
transaction is occurring that a prospective ruling is pending 
concerning the matter. Failure to advise the Customs office in which 
the ruling request is pending or the Customs office in which the 
transaction is occurring may result in refusal to issue the ruling or, 
if a ruling was issued, revocation of the ruling.


Sec. 177.15  Withdrawal of requests.

    Any request for a prospective ruling may be withdrawn in writing by 
the person submitting it at any time before the issuance of a ruling 
letter or any other final disposition of the request. When a withdrawal 
occurs and except as otherwise provided in subpart D of this part, all 
correspondence, documents, and exhibits submitted in connection with 
the ruling request will be retained in the Customs file and will not be 
returned. The mere withdrawal of a ruling request will not preclude 
Customs from issuing a ruling on its own initiative if Customs 
determines that it would be consistent with the sound administration of 
the Customs and related laws to do so (see Sec. 177.17(b)).


Sec. 177.16  Situations in which no prospective ruling will be issued.

    As a general rule, no prospective ruling will be issued under this 
subpart:
    (a) In response to a ruling request which fails to comply with the 
provisions of this subpart;
    (b) With regard to transactions or questions that are essentially 
hypothetical in nature or in any instance in which it otherwise appears 
contrary to the sound administration of the Customs and related laws to 
issue a ruling;
    (c) With regard to a completed transaction;
    (d) When confidentiality issues raised in a ruling request cannot 
be resolved (see subpart D of this part);
    (e) When Customs determines that issuance of an information letter 
would be more appropriate;
    (f) When the ruling requester has previously received a ruling 
involving an identical or similar transaction and:
    (1) A decision on an appeal from that previous ruling has been 
issued under Sec. 177.20; or
    (2) A modification or revocation involving that previous ruling is 
pending or has been issued under Sec. 177.21;
    (g) If the issue involved is identical or similar to one that is 
the subject of a pending modification or revocation under Sec. 177.21;
    (h) An established and uniform practice involving an identical or 
similar transaction exists or is undergoing a change under Sec. 177.22;
    (i) A limitation of a court decision involving an identical or 
similar transaction is pending under Sec. 177.23;
    (j) A protest review decision involving an identical or similar 
transaction is pending under part 174 of this chapter; or
    (k) If the ruling involves an issue pending before the United 
States Court of International Trade as a result of a summons filing or 
other action or which is pending before the United States Court of 
Appeals for the Federal Circuit or any court of appeal from that court. 
Litigation before any other court will not preclude the issuance of a 
ruling letter, provided neither the United States nor any of its 
agencies, officers or agents is named as a party to the action.


Sec. 177.17  Issuance of prospective rulings.

    (a) Rulings issued in response to a request--(1) General. Customs 
will normally process requests for rulings on prospective Customs 
transactions in the order in which they are received and as 
expeditiously as possible. Additional time may be required for 
preparation of a ruling if a laboratory analysis of a sample is needed 
or if it is necessary to obtain additional information from another 
government agency.
    (2) Request processing by the National Commodity Specialist 
Division--(i) Issuance of rulings. Requests for prospective rulings 
involving tariff classification or country of origin or marking that 
are submitted to the Director, National Commodity Specialist Division, 
in accordance with Sec. 177.11(a) generally will be responded to within 
30 calendar days of receipt except when a referral to the Headquarters 
Office occurs under paragraph (a)(2)(ii) of this section.
    (ii) Referral of requests to the Headquarters Office. If the 
Director, National Commodity Specialist Division, believes that the 
issues or arguments presented are novel or complex, the ruling request 
may be referred to the Headquarters Office for response. In addition, 
if the ruling response contemplated by Customs would be adverse to the 
position advocated by the ruling requester and the ruling requester has 
requested a

[[Page 37386]]

conference in such a circumstance, the Director, National Commodity 
Specialist Division, will refer the ruling request to the Headquarters 
Office for response. In either case, Customs will in writing advise the 
person submitting the ruling request that it has been referred to the 
Headquarters Office.
    (3) Requests for immediate consideration. A request that a 
particular matter be given consideration ahead of its regular order, if 
made in the ruling request or thereafter in accordance with the 
submission procedures set forth in Sec. 177.11(a) and with a showing of 
a clear need for that treatment, will be given consideration as the 
particular circumstances warrant and permit. Ordinarily, no assurance 
can be given that a particular ruling request will be acted upon by the 
time requested.
    (b) Rulings initiated by Customs. The Headquarters Office or the 
National Commodity Specialist Division may issue, or a Field National 
Import Specialist may prepare for issuance by a port director, other 
rulings on the initiative of Customs with respect to issues or 
transactions described or suggested by ruling requests submitted under 
the provisions of this part, or with respect to issues or transactions 
otherwise brought to its attention. If Customs contemplates issuance of 
a Customs-initiated ruling, the importer or other interested party to 
whom the ruling would be issued will be notified in writing and, except 
when the contemplated ruling involves a question of admissibility of 
merchandise (see Sec. 151.16 of this chapter), will be afforded 30 
calendar days to make a written submission setting forth its position 
on the issue involved in the contemplated ruling. If the person making 
the written submission wants Customs to accord confidential treatment 
to any information contained in the written submission, a request for 
that confidential treatment must be included in the written submission 
and must conform to the requirements of subpart D of this part. These 
Customs-initiated rulings will be made available to the general public 
as provided in Sec. 177.24.


Sec. 177.18  Requirement to bring rulings to the attention of field 
offices.

    Any person, or a successor in interest of that person, to whom a 
ruling has been issued under this part must abide by the following 
principles and procedures when engaging in a current Customs 
transaction that involves imported merchandise to which that ruling 
relates:
    (a) The person must either attach a copy of the ruling to the 
documents filed with the appropriate Customs office in connection with 
the current transaction or otherwise include the ruling number in the 
information filed for the current transaction;
    (b) Except as otherwise specifically provided elsewhere in this 
chapter, the person must use the position set forth by Customs in the 
ruling in completing any documentation in connection with any 
subsequent entry involving the issues addressed, and a failure to do so 
may result in a rejection of the entry and may result in the assessment 
of a monetary penalty for failure to exercise reasonable care. If the 
person wishes to challenge a Customs position reflected in a ruling, 
the appropriate course of action would be to appeal the ruling under 
Sec. 177.20 or Sec. 177.33 or to file a protest in accordance with part 
174 of this chapter; and
    (c) The person must immediately bring to the attention of the 
appropriate Customs field office a ruling received after the filing of 
entry documents or information. Depending on the circumstances, failure 
to do so may result in the imposition of such penalties as may be 
appropriate.


Sec. 177.19  Effect of prospective rulings.

    (a) General. A prospective ruling represents the official position 
of Customs with respect to the particular transaction or issue 
described in it and is binding on Customs and the recipient until the 
ruling is modified or revoked as provided in Sec. 177.21. Accordingly, 
so long as the ruling has not been modified or revoked (whether by 
Customs action or by operation of law), the principle of that ruling 
may be cited by the recipient of the ruling as authority in the 
disposition of transactions involving circumstances that are 
substantially identical in all material respects. Generally, a ruling 
is effective on the date of issuance and may be applied to all entries 
of merchandise which are unliquidated, or may be applied to other 
transactions on which Customs has not taken final action, on that date 
(see, however, Secs. 177.21 and 177.22 regarding rulings which modify 
or revoke previous rulings or result in a change of an established and 
uniform practice). Notwithstanding the issuance of a ruling under this 
part, the admissibility of merchandise is determined at the time of 
entry or release.
    (b) Application to transactions--(1) Application of rulings in 
general. Each prospective ruling is issued on the assumption that all 
of the information furnished in connection with it and incorporated in 
it, either directly, by reference, or by implication, is accurate and 
complete in every material respect. The application of a ruling by a 
Customs field office to a current transaction to which it is purported 
to relate is subject to the verification of the facts incorporated in 
that ruling, a comparison of the described transaction and the current 
transaction, and the satisfaction of any conditions on which the ruling 
was based. If, in the opinion of any Customs field office by which the 
current transaction is under consideration or review, the ruling does 
not conform to the material facts of the current transaction or any 
conditions set forth in that ruling have not been satisfied, the ruling 
will not be applied to that current transaction. Otherwise, if the 
transaction described in the ruling and the current transaction are 
substantially identical in all material respects, and provided that any 
and all conditions set forth in the ruling have been satisfied, the 
ruling will be applied to the current transaction.
    (2) Tariff classification rulings. Each prospective ruling setting 
forth the proper classification of an article under the provisions of 
the Harmonized Tariff Schedule of the United States will be applied not 
only to the prospective transaction covered by the ruling request but 
also to any current transactions involving either articles identical in 
all material respects to the sample submitted with the ruling request 
or articles whose description is identical in all material respects to 
the description set forth in the ruling.
    (c) Third party reliance on rulings. A person engaging in a Customs 
transaction who has not received a ruling covering that transaction may 
rely on a prospective ruling issued to or on behalf of another person 
and made available to the public under Sec. 177.24, and may assume that 
Customs will apply the principles of that ruling to his transaction, 
provided that Customs determines that the relevant facts and principles 
reflected in the ruling are materially the same as those involved in 
the transaction under consideration and provided that the ruling has 
not been modified or revoked by operation of law or by Customs action 
(see Sec. 177.21). In addition, any person eligible to request a 
prospective ruling as provided in Sec. 177.1(b)(5) may request under 
this subpart a ruling on a transaction believed to be similar to one 
covered by an already issued ruling.


Sec. 177.20  Appeal of prospective rulings.

    (a) Scope of appeal. If the recipient of a prospective ruling 
issued under this subpart (other than a ruling issued

[[Page 37387]]

under Sec. 177.21) believes that the ruling is adverse to his position 
on one or more substantive issues reflected in the ruling, that 
recipient, or his authorized agent, may pursue an administrative appeal 
of that ruling in accordance with the procedures set forth in this 
section. An appeal filed under this section must be limited to issues 
involving the construction of the law and will involve a de novo review 
of the ruling which is the subject of the appeal. The decision on 
appeal may correct an erroneous statement in the original ruling, may 
affirm the result reached in the original ruling, may modify or revoke 
the original ruling (see Sec. 177.21), or may involve the issuance of a 
new ruling if new or additional facts are presented in the appeal.
    (b) Form and address. The appeal must be in the form of a signed 
letter written in the English language and must be addressed to the 
Office of Regulations and Rulings, United States Customs Service, 
Washington, DC 20229. The words ``Ruling Appeal'' should appear in a 
conspicuous place on the face of the envelope containing the appeal 
letter.
    (c) Time of filing. The appeal must be filed within 30 calendar 
days of the date of the adverse ruling. An appeal received by Customs 
after that 30-day appeal period will be rejected as untimely and will 
be returned to the person filing the appeal. The issues raised in a 
rejected appeal may be the subject of administrative review only under 
the internal advice procedure provided for in subpart C of this part or 
in connection with a valid protest filed under part 174 of this 
chapter.
    (d) Content. Each appeal letter should include a copy of the ruling 
which is the subject of the appeal, must include the certification 
required under Sec. 177.11(b)(6) appropriately modified to reflect an 
appeal context, and should include any other information, documents, 
samples or other materials submitted in connection with the original 
ruling request under Sec. 177.11 which are not reflected in the ruling 
and which the person filing the appeal deems relevant to the issues 
raised in the appeal.
    (e) Current or completed transactions. The filing of an appeal 
under this section will not result in a suspension of liquidation in 
the case of current transactions pending resolution of the appeal and 
will not extend or otherwise affect the period for filing a protest 
under part 174 of this chapter. However, if a person has filed a timely 
appeal under this section, he may protest under part 174 any 
liquidation that is consistent with the original ruling, and any 
resulting protest decision will reflect the decision on appeal under 
this section.
    (f) Confidential information. If the person filing the appeal wants 
Customs to accord confidential treatment to any information submitted 
in connection with the appeal, a written request for that confidential 
treatment must be made when the information is submitted to Customs and 
must conform to the requirements of subpart D of this part.
    (g) Processing of appeals--(1) General. Appeals of adverse rulings 
will normally be processed in the order they are received and as 
expeditiously as possible. The provisions of Sec. 177.13 relating to 
conferences will apply to appeals under this section, except that a 
conference on an appeal under this section will not be granted as a 
matter of right but rather only if the Headquarters Office believes 
that a conference is necessary. If a conference is held, the 
Headquarters Office may require additional time to prepare the decision 
on appeal.
    (2) Requests for expedited consideration. If a request that an 
appeal be given expedited consideration is made in the appeal letter 
with a reasonable showing of business necessity for that treatment, the 
appeal will be decided no later than 60 calendar days following the 
date on which the appeal is received by the Headquarters Office except 
when the publication requirements of Sec. 177.21 are applicable (see 
paragraph (g)(4)(ii) of this section).
    (3) Issuance of decision. Each appeal will be decided on the 
written record before Customs, that is, the record on the original 
appealed ruling plus the appeal letter submission and any submission 
made after a conference pursuant to Sec. 177.13(e) and any other 
information that Customs determines to be relevant. The Headquarters 
Office will issue a written ruling on the appeal to the person who 
filed the appeal or to any other person designated for that purpose in 
the appeal letter.
    (4) Effective dates. If the ruling on appeal affirms the result 
reflected in the original ruling, that original ruling will remain in 
effect for purposes of this subpart. If the Headquarters Office 
determines on appeal that the original ruling is in error in whole or 
in part or is otherwise not in accord with the current views of 
Customs, the ruling on appeal will modify or revoke the original ruling 
with regard to the issue or issues raised on appeal and will be given 
effect as follows:
    (i) If the ruling on appeal is issued less than 60 calendar days 
after the effective date of the original ruling, the result reflected 
in the ruling on appeal will be effective on the date of the original 
ruling and will be applied to Customs transactions as set forth in 
Sec. 177.19; or
    (ii) If the ruling on appeal is issued 60 or more calendar days 
after the effective date of the original ruling, the ruling on appeal 
will constitute a modifying or revoking ruling and the publication and 
effective date requirements set forth in Sec. 177.21 will apply.


Sec. 177.21  Modification or revocation of prospective rulings, 
internal advice decisions, protest review decisions, and previous 
treatment of substantially identical transactions.

    (a) General. A prospective ruling issued under this subpart or an 
internal advice decision issued under subpart C of 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 a 
prospective ruling issued under this subpart. In addition, a 
prospective ruling issued under this subpart 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 paragraph (d) of this section, and the 
modification or revocation will take effect as provided in paragraph 
(e) of this section.
    (b) Prospective ruling, internal advice decision or protest review 
decision. Customs may modify or revoke a prospective ruling or internal 
advice decision 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 a 
prospective ruling that would modify or revoke a prospective ruling or 
internal advice decision or holding or principle covered by a protest 
review decision which has been in effect for 60 or more

[[Page 37388]]

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 prospective rulings or internal advice decisions 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 prospective ruling or internal advice decision 
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 prospective ruling or internal advice decision 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 the original prospective 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. Publication of a final modifying or revoking notice in the 
Customs Bulletin will have the effect of modifying or revoking any 
prospective ruling or internal advice decision 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 a prospective ruling or internal advice decision 
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 a prospective 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. For purposes of this section:
    (i) Treatment means a consistent pattern of decisions involving the 
classification of imported merchandise under the Harmonized Tariff 
Schedule of the United States as determined upon liquidation of the 
applicable entry or reconciliation during the 2-year period immediately 
prior to publication of the notice of proposed modification or 
revocation under this section. 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 and/
or import specialist review.
    (ii) A person may not claim as a treatment the treatment that 
Customs accorded to transactions of another person; and
    (iii) The burden of proof 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 substantially 
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, and the dates of 
final action by Customs.
    (2) Notice procedures--(i) When Customs has reason to believe that 
a contemplated prospective 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 a prospective ruling or internal advice decision 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 prospective ruling or other final 
action on the proposed modification or revocation will be published in 
the Customs Bulletin, and written confirmation of the applicability of 
a final modification or revocation will be provided to each person 
identified in the notice or during the public comment period as having 
had substantially identical transactions that were accorded the same 
treatment.
    (ii) If Customs is not aware prior to issuance that a contemplated 
prospective ruling would have the effect of modifying or revoking the 
treatment previously accorded by Customs to substantially identical 
transactions, the prospective ruling will be issued and generally will 
be effective as provided in Sec. 177.19. However, Customs will, upon 
written application by a person claiming that the prospective 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 prospective 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

[[Page 37389]]

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. 177.22 of this part 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 a prospective ruling or 
internal advice decision 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 
ruling:
    (i) Will be effective on its date of issuance with respect to the 
specific transaction covered by the modifying or revoking 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 a 
prospective ruling or internal advice decision 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:
    (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.


Sec. 177.22  Established and uniform practice.

    (a) General. In determining under this section that an established 
and uniform practice exists for purposes of 19 U.S.C. 1315(d):
    (1) Only a practice regarding tariff classification under the 
Harmonized Tariff Schedule of the United States may be considered;
    (2) The practice must involve 100 percent uniform treatment 
accorded by Customs through liquidations performed at multiple ports 
over an extended period of time. For purposes of this paragraph, 
``treatment accorded by Customs'' means an actual review of entries and 
therefore does not include cases in which liquidation of an entry 
occurred without the direct, active involvement of Customs (for 
example, when liquidation took place by operation of law or involved 
bypass or automatic liquidation or similar procedures); and
    (3) The burden of proof is on the importer except in a situation 
described in paragraph (c) of this section.
    (b) Change of established and uniform practice--(1) Publication. 
Before the issuance of a ruling which has the effect of changing an 
established and uniform practice and which results in the imposition of 
a higher rate of duty or charge, notice that the established and 
uniform practice is under review will be published in the Federal 
Register and interested parties will be given an opportunity to make 
written submissions with respect to the correctness of the contemplated 
change. After the close of the public comment period, any submitted 
comments will be considered and a final ruling will be published in the 
Federal Register. The procedures set forth in this paragraph shall not 
apply with respect to a change of an established and uniform practice 
affecting the imposition of antidumping or countervailing duties.
    (2) Effective date. A final ruling which changes an established and 
uniform practice under this section and results in the imposition of a 
higher rate of duty or charge will be effective with respect to 
merchandise entered, or withdrawn from warehouse for consumption, 30 
calendar days after publication of that ruling in the Federal Register.
    (c) Notice of existence of an established and uniform practice. 
Customs may, on its own initiative, publish in the Federal Register or 
Customs Bulletin a notice informing the public of the existence of an 
established and uniform practice. Once published, that established and 
uniform practice will be subject to the requirements and limitations 
set forth in paragraph (b) of this section.


Sec. 177.23  Limitation of court decisions.

    (a) General. Subject to the notice and comment procedures set forth 
in paragraph (b) of this section, Customs may issue a decision that 
limits the application of a court decision to the specific article or 
issue under litigation, or to an article of a specific class or kind of 
merchandise that was the subject of the court decision, or to the 
particular circumstances or entries which were the subject of the court 
decision.
    (b) Publication procedures. When Customs contemplates promulgation 
of a decision that would limit a court decision, a notice of the 
proposed

[[Page 37390]]

decision will be published in the Customs Bulletin for public comment. 
Interested parties will have 30 calendar days from the date of 
publication of the proposed decision to submit comments. After the 
close of the public comment period, any submitted comments will be 
considered and a final decision will be published in the Customs 
Bulletin.
    (c) Effective date. A final limiting decision promulgated pursuant 
to this section will be effective upon publication of the decision in 
the Customs Bulletin.


Sec. 177.24  Availability of rulings to the public.

    All rulings issued under this part, except those for which specific 
publication procedures are prescribed (see Secs. 177.21, 177.22 and 
177.23), will be published or made available for public inspection by 
electronic or other means within 90 calendar days after the date of 
issuance.

Subpart C--Internal Advice Procedure


Sec. 177.31  Requests for advice by Customs offices in general.

    Advice or guidance as to the interpretation or proper application 
of the Customs and related laws with respect to a specific Customs 
transaction may be requested by Customs offices from the Headquarters 
Office or its designee at any time, whether the transaction is 
prospective, current, or completed. Advice as to the proper 
interpretation and application of the Customs and related laws with 
reference to a current transaction may be sought by a Customs office 
either on its own initiative or following a request made by an importer 
or other person having an interest in the transaction. Advice or 
guidance will be furnished by the Headquarters Office or its designee 
as a means of assisting Customs personnel in the orderly processing of 
Customs transactions under consideration by them and to ensure the 
consistent application of the Customs and related laws in the various 
Customs ports.


Sec. 177.32  Requests for advice on current transactions.

    (a) When a ruling has been issued--(1) Requests initiated by 
Customs. If a ruling with respect to a prospective Customs transaction 
has been issued under subpart B of this part and the Customs office 
having jurisdiction over a current Customs transaction to which the 
ruling purports to relate believes that the ruling should be modified 
or revoked or for any other reason should not be applied to the current 
transaction, that office may, subject to the provisions of paragraph 
(c) of this section and in accordance with the procedures of paragraph 
(f) of this section, forward a request that the ruling be reconsidered 
or otherwise reviewed to determine its correctness or its applicability 
to the current transaction. The Customs office will notify the importer 
or other person having an interest in the current transaction, in 
writing, that it intends to refer the matter for internal advice. The 
written notice to the importer or other interested person will identify 
the specific issue to be reviewed under the internal advice procedure 
and will afford the importer or other interested person 30 calendar 
days to make a written submission on the issue, which should be 
provided to the Customs office issuing the notice, for inclusion with 
the request for internal advice.
    (2) Requests initiated by importers and others. If a prospective 
ruling has been issued under subpart B of this part and the importer or 
other person having an interest in a current Customs transaction to 
which the ruling purports to relate disagrees with the Customs office 
having jurisdiction over the current transaction as to the correctness 
of the ruling or proper application of the ruling to the current 
transaction, the importer or other interested person may request in 
writing that the Customs office seek internal advice as to the 
correctness of the ruling or proper application of the ruling to the 
current transaction. Subject to the provisions of paragraph (c) of this 
section, a decision whether or not to seek internal advice in the 
circumstances outlined in this paragraph will be solely at the 
discretion of the Customs office, and the decision by that office will 
be made in writing within 30 calendar days of receipt of the written 
request from the importer or other interested person. If the Customs 
office agrees to seek internal advice, the request for internal advice 
will be submitted in accordance with paragraph (f) of this section.
    (b) When no ruling has been issued--(1) General. Subject to the 
provisions of paragraph (c) of this section, internal advice may be 
sought by a Customs office with respect to a current Customs 
transaction to which no ruling issued under subpart A of this part 
purports to relate whenever there is a difference of opinion, including 
a difference of opinion involving two or more Customs offices, as to 
the interpretation or proper application of the Customs and related 
laws to the current transaction. This internal advice may be sought by 
the Customs office having jurisdiction over the current transaction 
either on its own initiative or in response to a written request from 
the importer or other person having an interest in the current 
transaction and will be submitted in accordance with paragraph (f) of 
this section. If the request for internal advice is initiated by the 
Customs office, that office will notify the importer or other 
interested person in writing that it intends to refer the matter for 
internal advice; the written notice will identify the specific issue to 
be reviewed under the internal advice procedure and will afford the 
importer or other interested person 30 calendar days to make a written 
submission on the issue, which should be provided to the Customs office 
issuing the notice, for inclusion with the request for internal advice. 
If the importer or other interested person submits a written request 
for the internal advice procedure, a decision whether or not to seek 
internal advice under this paragraph will be solely at the discretion 
of the Customs office except as otherwise provided in paragraph (b)(2) 
of this section; the decision will be made in writing within 30 
calendar days of receipt of the written request from the importer or 
other interested person.
    (2) Differences in tariff application. If an importer of 
merchandise knows that two or more Customs offices are allowing 
different tariff results for the same merchandise imported by that 
importer, that importer has an obligation, as a function of the 
exercise of reasonable care, to bring that fact to the attention of 
Customs in connection with the filing of his entry covering that 
merchandise. When it comes to the attention of a Customs office through 
an importer or by any other means that two or more Customs offices are 
applying different tariff results to the same merchandise, that Customs 
office must seek internal advice in accordance with paragraph (f) of 
this section if:
    (i) The offices cannot reach agreement on the proper action to be 
taken with respect to the merchandise; and
    (ii) The matter at issue otherwise meets the requirements for 
internal advice under this subpart.
    (c) Criteria for internal advice--(1) When internal advice may be 
requested. Except as otherwise provided in paragraph (c)(2) of this 
section, when a Customs office would otherwise not accept the position 
presented by an importer or other interested person in connection with 
a current transaction, that office may request internal advice if:
    (i) The importer or other interested person demonstrates that his 
position is entirely consistent in all material respects with:
    (A) A ruling issued under subpart B of this part;

[[Page 37391]]

    (B) An internal advice decision issued under this subpart;
    (C) A protest review decision issued under part 174 of this 
chapter;
    (D) A decision made at any port with respect to a transaction that 
is substantially identical in all material respects; or
    (E) A decision of the United States Court of International Trade or 
the United States Court of Appeals for the Federal Circuit or any court 
of appeal from that court;
    (ii) The importer or other interested person demonstrates that the 
current transaction involves questions of law or fact which have not 
been ruled upon by the Commissioner of Customs or his designee or by 
the United States Court of International Trade or the United States 
Court of Appeals for the Federal Circuit or any court of appeal from 
that court; or
    (iii) The current transaction involves matters previously ruled 
upon by the Commissioner of Customs or his designee or by the United 
States Court of International Trade or the United States Court of 
Appeals for the Federal Circuit or any court of appeal from that court, 
but the importer or other interested person demonstrates that the 
current transaction involves facts or legal issues which were not 
considered at the time of the earlier ruling.
    (2) Circumstances in which internal advice may not be requested. A 
Customs office may not request internal advice on a current transaction 
if one of the criteria set forth in paragraph (c)(1) of this section is 
not met or in any of the following circumstances:
    (i) If the importer or other interested person requested that 
internal advice be sought and the internal advice request would have 
the effect of seeking reconsideration of either a ruling previously 
issued to that importer or other interested person under subpart B of 
this part or a protest review decision previously issued to that 
importer or other interested person under part 174 of this chapter;
    (ii) When confidentiality issues raised in an internal advice 
submission cannot be resolved (see subpart D of this part);
    (iii) When the issue involved is identical or similar to one that 
is the subject of a pending modification or revocation under 
Sec. 177.21;
    (iv) When an established and uniform practice involving an 
identical or similar transaction exists or is undergoing a change under 
Sec. 177.22;
    (v) When a limitation of a court decision involving an identical or 
similar transaction is pending under Sec. 177.23;
    (vi) When a protest review decision involving an identical or 
similar transaction is pending under part 174 of this chapter; or
    (vii) When an identical or similar transaction is pending before 
the Court of International Trade or is on appeal from that court. For 
purposes of this paragraph, a transaction is ``pending before the Court 
of International Trade'' if a summons has been filed.
    (d) Content of submissions or requests by importers and others. If 
an importer or other interested person makes a submission under 
paragraph (a)(1) or (b) of this section or requests that a Customs 
office seek internal advice under paragraph (a)(2) or (b) of this 
section, the written submission or request must contain a complete 
statement setting forth a description of the transaction, the specific 
questions presented, the applicable law, and an argument for the 
conclusions advocated. If the importer or other interested person wants 
Customs to accord confidential treatment to any information provided by 
him in connection with a request for internal advice under this 
section, a written request for that confidential treatment must be made 
when that information is provided to Customs and must conform to the 
requirements of subpart D of this part. If the importer or other 
interested person wants an opportunity to have a conference if issuance 
of an adverse decision is contemplated (see paragraph (f)(3) of this 
section), a statement to that effect must be included in the submission 
or request. In addition, where an importer or other interested person 
requests that a Customs office seek internal advice and relies upon the 
criterion set forth in paragraph (c)(1)(ii) of this section, the 
request must also contain, or provide as a signed attachment to the 
request, the following certification by a person having knowledge of 
the facts:

    I certify that, to the best of my knowledge and belief, and 
except as otherwise stated herein, the transaction described in this 
request, or one similar, identical, or related to it, is not 
currently being considered by any other Customs office and will not 
be pending before any Customs office by virtue of a request for a 
prospective ruling or a request for internal advice or a protest 
filed simultaneously with this request and is not pending before any 
other Federal agency or before any Federal court, and that, to the 
best of my knowledge and belief, all information provided in 
connection with this request is accurate and complete.

    (e) Review of statements by importers and others. Each written 
statement submitted by an importer or other interested person under 
paragraph (d) of this section will be reviewed by the Customs office to 
which it is submitted. In the event a difference of opinion exists as 
to the description of the transaction or as to the point or points at 
issue, the person submitting the statement will be so advised in 
writing. If agreement cannot be reached, the statement of the importer 
or other interested person, together with the written position of the 
Customs office, will be forwarded by the Customs office as a request 
for internal advice in accordance with paragraph (f) of this section.
    (f) Submission and processing of requests for internal advice--(1) 
Submission to, and decision by, the National Commodity Specialist 
Division. If the request for internal advice on a current Customs 
transaction involves a matter on which the National Commodity 
Specialist Division may issue a prospective ruling (see 
Sec. 177.11(a)(1)), the Customs office will submit the request to the 
Director, National Commodity Specialist Division, who will review the 
request to determine whether it meets the standards for internal advice 
set forth in paragraphs (c) and (d) of this section. At the conclusion 
of that review:
    (i) If the request for internal advice is complete and meets the 
criteria for internal advice set forth in paragraph (c) of this 
section, the Director, National Commodity Specialist Division, will 
issue a written decision on the request to the submitting office within 
30 calendar days of receipt of the request and will furnish a copy of 
the decision to the importer or other interested person, except in any 
of the following circumstances:
    (A) The issue presented in the request involves a position of the 
submitting office that reflects a position already taken by the 
Director, National Commodity Specialist Division. In this case, the 
Director will return the request to the submitting office with 
instructions to handle the matter in accordance with that Customs 
position;
    (B) The importer or other interested person has requested a 
conference in accordance with paragraph (f)(3) of this section and the 
Director, National Commodity Specialist Division, contemplates issuance 
of a decision adverse to the position of the importer or other person; 
or
    (C) The Director, National Commodity Specialist Division, believes 
that the nature of the issue presented in the request requires 
consideration and decision by the Headquarters Office;
    (ii) If the request for internal advice involves a circumstance 
described in paragraph (f)(1)(i)(B) or paragraph

[[Page 37392]]

(f)(1)(i)(C) of this section, the Director, National Commodity 
Specialist Division, will forward the request to the Headquarters 
Office for consideration and decision; or
    (iii) The Director, National Commodity Specialist Division, will 
return the request for internal advice to the submitting office without 
taking any further action on it if the request does not contain 
sufficient information on which to base a decision or if the request 
does not meet the criteria for internal advice set forth in paragraph 
(c) of this section. The Director, National Commodity Specialist 
Division, will provide a written explanation of the reason the request 
is being returned without action.
    (2) Submission to, and decision by, the Headquarters Office. If the 
request for internal advice on a current Customs transaction involves a 
matter on which only the Headquarters Office may issue a prospective 
ruling (see Sec. 177.11(a)(2)), the Customs office will submit the 
request to the Headquarters Office. Following receipt of a request for 
internal advice submitted under this paragraph or forwarded under 
paragraph (f)(1)(ii) of this section, the Headquarters Office will 
review the request to determine whether it meets the standards for 
internal advice set forth in paragraphs (c) and (d) of this section. At 
the conclusion of that review, the Headquarters Office will issue a 
written decision on the request, including a refusal to furnish advice, 
to the submitting office and will furnish a copy of the decision to the 
importer or other interested person. The Headquarters Office may refuse 
to consider the questions presented to it in a request for internal 
advice whenever:
    (i) The Headquarters Office determines that the period of time 
necessary to give adequate consideration to the questions presented 
would result in a withholding of action with respect to the 
transaction, or in any other situation that is inconsistent with the 
sound administration of the Customs and related laws; and
    (ii) The questions presented can subsequently be raised by the 
importer or other interested party in the form of a protest filed under 
part 174 of this chapter.
    (3) Conferences on issues. A request by the importer or other 
interested person for an opportunity to have a conference on an issue 
presented in a request for internal advice on a current Customs 
transaction will be granted only in connection with a decision to be 
issued by the Headquarters Office and only in circumstances in which 
the Headquarters Office contemplates issuance of a decision adverse to 
the position advocated by the importer or other interested person in 
the written submission or request prepared in accordance with paragraph 
(d) of this section. A conference held under this section will not 
conclude with the issuance of an internal advice decision and will be 
governed by the following principles and procedural requirements:
    (i) A conference is scheduled for the purpose of affording the 
parties an opportunity to freely and openly discuss the matters set 
forth in the written submission or request of the importer or other 
interested person. Accordingly, the parties will not be bound by any 
argument or position advocated or agreed to, expressly or by 
implication, during the conference unless either party subsequently 
agrees to be so bound in writing.
    (ii) If a request for a conference is granted, the person making 
the request will be contacted to arrange a time and place for the 
conference. No more than one conference with respect to the matters set 
forth in a request for internal advice will be scheduled, unless, in 
the opinion of the Headquarters Office, additional conferences are 
necessary.
    (iii) A person whose request for a conference has been granted may 
appear at the conference in person and may be accompanied by counsel or 
other representatives or, in lieu of a personal appearance, the person 
may designate an authorized agent to appear at the conference in his 
place.
    (iv) It will be the responsibility of the person who requested the 
conference to provide for inclusion in the Headquarters Office file on 
the matter a written record setting forth any and all additional 
documents, exhibits, or other information introduced during the 
conference to the extent that person considers the material relevant to 
the consideration of the request for internal advice. Any further 
documentation, exhibits, or other information to be submitted as a 
result of the conference must be submitted to the Headquarters Office 
within 30 calendar days following the conference or within any longer 
period as the Headquarters Office may authorize.
    (g) Effect of internal advice decisions--(1) General. Internal 
advice furnished by the Director, National Commodity Specialist 
Division, or by the Headquarters Office under this section represents 
the official position of Customs as to the interpretation and 
application of the Customs laws with reference to the facts of a 
specific transaction. Internal advice furnished under this section will 
be effective on the date of the written decision and will be applied by 
the Customs office in its disposition of the current transaction in 
question and in the disposition of future transactions of the importer 
or other interested person involving circumstances that are 
substantially identical in all material respects, provided that the 
decision has not been modified or revoked on appeal under Sec. 177.33 
or modified or revoked by a prospective ruling under Sec. 177.21.
    (2) Third party reliance on internal advice decisions. A person 
engaging in a Customs transaction who has not received a ruling 
covering that transaction may rely on an internal advice decision 
issued in connection with a Customs transaction of another person and 
made available to the public under Sec. 177.24, and may assume that 
Customs will apply the principles of that internal advice decision to 
his transaction, provided that Customs determines that the relevant 
facts and principles reflected in the internal advice decision are 
materially the same as those involved in the transaction under 
consideration and provided that the internal advice decision has not 
been modified or revoked by operation of law or by Customs action (see 
Sec. 177.21).


Sec. 177.33  Appeal of internal advice decisions on current 
transactions.

    (a) Scope of appeal. If an importer or other interested person on 
whose current transaction an internal advice decision was issued under 
Sec. 177.32 believes that the decision is adverse to his position on 
one or more substantive issues reflected in the decision, that person, 
or his authorized agent, may pursue an administrative appeal of that 
decision in accordance with the procedures set forth in this section. 
An appeal filed under this section must be limited to issues involving 
the construction of the law and will involve a de novo review of the 
decision which is the subject of the appeal. The decision on appeal may 
correct an erroneous statement in the original decision, may affirm the 
result reached in the original decision, may modify or revoke the 
original decision (see Sec. 177.21), or may involve the issuance of a 
new decision if new or additional facts are presented in the appeal.
    (b) Form and address. The appeal must be in the form of a signed 
letter written in the English language. In the case of an internal 
advice decision issued by the Headquarters Office, the appeal letter 
must be addressed to the Office of Regulations and Rulings, United 
States Customs Service, Washington, DC 20229. In the case of an 
internal advice decision issued by the

[[Page 37393]]

Director, National Commodity Specialist Division, the appeal letter 
must be addressed to the Director, National Commodity Specialist 
Division, Office of Regulations and Rulings, United States Customs 
Service, New York, New York 10048, who will forward the appeal letter, 
together with any comments as may be appropriate, to the Headquarters 
Office for processing. The words ``Internal Advice Appeal'' should 
appear in a conspicuous place on the face of the envelope containing 
the appeal letter.
    (c) Time of filing. The appeal must be filed within 30 calendar 
days of the effective date of the adverse internal advice decision. An 
appeal received by Customs after that 30-day appeal period will be 
rejected as untimely and will be returned to the person filing the 
appeal. The issues raised in a rejected appeal may be the subject of 
administrative review only in connection with a valid protest filed 
under part 174 of this chapter.
    (d) Content. Each appeal letter should include a copy of the 
internal advice decision which is the subject of the appeal and any 
other information, documents, samples or other materials submitted by 
the importer or other interested person in connection with the original 
request for internal advice under Sec. 177.32 which are not reflected 
in the internal advice decision and which the person filing the appeal 
deems relevant to the issues raised in the appeal.
    (e) Current or completed transactions. The filing of an appeal 
under this section will not result in a suspension of liquidation in 
the case of current transactions pending resolution of such appeal and 
will not extend or otherwise affect the period for filing a protest 
under part 174 of this chapter. However, if a person has filed a timely 
appeal under this section, he may protest under part 174 any 
liquidation that is consistent with the original decision, and any 
resulting protest decision will reflect the decision on appeal under 
this section.
    (f) Confidential information. If the person filing the appeal wants 
Customs to accord confidential treatment to any information submitted 
in connection with the appeal, a written request for that confidential 
treatment must be made when the information is submitted to Customs and 
must conform to the requirements of subpart D of this part.
    (g) Processing of appeals--(1) General. Appeals of adverse internal 
advice decisions will normally be processed in the order they are 
received and as expeditiously as possible. The provisions of 
Sec. 177.32(f)(3) relating to conferences will apply to appeals under 
this section except that a conference on an appeal under this section 
will not be granted as a matter of right but rather only if the 
Headquarters Office believes that a conference is necessary. If a 
conference is held, the Headquarters Office may require additional time 
to prepare the decision on appeal.
    (2) Requests for expedited consideration. If a request that an 
appeal be given expedited consideration is made in the appeal letter 
with a reasonable showing of business necessity for that treatment, the 
appeal will be decided no later than 60 calendar days following the 
date on which the appeal is filed with Customs except when the 
publication requirements of Sec. 177.21 are applicable.
    (3) Issuance of decision. Each appeal will be decided solely on the 
written record before Customs, that is, the record on the original 
appealed internal advice decision plus the appeal letter submission and 
any timely submission made after a conference and any other information 
that Customs determines to be relevant. The Headquarters Office will 
issue a written decision on the appeal to the person who filed the 
appeal or to any other person designated for that purpose in the appeal 
letter, and a copy of the appeal decision will be provided to the 
Customs field office and to the Director, National Commodity Specialist 
Division.
    (4) Effective dates. If the decision on appeal affirms the result 
reflected in the original internal advice decision, that original 
decision will remain in effect for purposes of this subpart. If it is 
determined on appeal that the original internal advice decision is in 
error in whole or in part or is otherwise not in accord with the 
current views of Customs, the decision on appeal will be given effect 
as follows:
    (i) If the decision on appeal is issued less than 60 calendar days 
after the effective date of the original internal advice decision, the 
decision on appeal will constitute a modification or revocation of the 
original internal advice decision with regard to the issue or issues 
raised on appeal and the result reflected in the decision on appeal 
will be applied to Customs transactions as follows:
    (A) If final Customs action has not been taken on the current 
transaction that was the subject of the original internal advice 
decision, Customs will follow the decision on appeal in handling the 
current transaction; or
    (B) If final Customs action has been taken on the current 
transaction that was the subject of the appeal, Customs will take the 
decision on appeal into account in considering a valid protest filed 
against that final action under part 174 of this chapter; or
    (ii) If the decision on appeal is issued 60 or more calendar days 
after the effective date of the original internal advice decision, the 
original internal advice decision will be modified or revoked in 
accordance with the procedures set forth in Sec. 177.21, and the 
decision on appeal will take effect on the effective date of the ruling 
that modifies or revokes the original internal advice decision (see 
Sec. 177.21(e)).


Sec. 177.34  Availability of internal advice decisions to the public.

    An internal advice decision issued under this subpart will be made 
available for public inspection in accordance with Sec. 177.24.

Subpart D--Disclosure of Confidential Business Information


Sec. 177.41  Treatment of requests for confidentiality.

    (a) General availability of information. Consistent with the basic 
principle of availability of information reflected in the Freedom of 
Information Act (the FOIA, 5 U.S.C. 552) and part 103 of this chapter, 
the general practice of Customs is to treat all information submitted 
under this part as a matter of public record that is available to the 
general public. However, a person who provides information to Customs 
in connection with a ruling or appeal under subpart B of this part, or 
who provides information to Customs in connection with an internal 
advice request or appeal under subpart C of this part, may in 
accordance with paragraph (b) of this section request that Customs 
accord confidential treatment to that information if the person does 
not want it to be disclosed to the public.
    (b) Submission of requests for confidential treatment. A request 
for confidential treatment under this section must conform to the 
following standards:
    (1) The request must be in writing and must relate to information 
that is alleged to constitute trade secrets or other confidential 
commercial or financial information regarding the business transactions 
of an interested person, the disclosure of which would cause 
substantial harm to the competitive position of that person;
    (2) The request must clearly identify the information that is the 
subject of the request;
    (3) The request must set forth the reasons why the information 
should not be disclosed, including the reasons the

[[Page 37394]]

disclosure of the information would prejudice the competitive position 
of the interested person;
    (4) The request must be supported by a signed statement by the 
interested person, or by an officer or authorized employee of an 
interested party company, certifying that the information in question 
is confidential commercial or financial information and is not already 
in the public domain; and
    (5) A failure to request confidential treatment at the time the 
information in question is submitted to Customs will constitute a 
waiver of confidential treatment. Accordingly, a request for 
confidential treatment will not be entertained under this subpart if 
the information to which the request relates was submitted to Customs 
without a request for confidential treatment.
    (c) Disposition of requests for nondisclosure--(1) General. An 
issue of confidentiality raised under paragraph (b) of this section 
will be resolved with reference to the principles that apply under 
Exemption 4 of the FOIA (5 U.S.C. 552(b)(4)) and under 31 CFR part 1 
and under part 103 of this chapter. A request for a conference to 
discuss an issue of confidentiality will be granted only if Customs 
believes that a conference is necessary. Each issue of confidentiality 
must be resolved to the satisfaction of Customs and the person who 
submitted the information to Customs before Customs will consider the 
substance of the ruling request or submission or appeal which contains 
the information at issue, except in the case of information submitted 
in connection with a prospective ruling or request for internal advice 
that was initiated by Customs (see paragraph (c)(2)(ii) of this 
section). If the issue of confidentiality is resolved to the mutual 
satisfaction of Customs and the person who submitted the information at 
issue, Customs will grant the request for confidential treatment by 
written notice to the person who made that request. Customs will then 
resume consideration of the appropriate ruling or internal advice 
decision or decision on appeal in accordance with subpart B or subpart 
C of this part.
    (2) Failure to agree on confidential treatment--(i) Action not 
initiated by Customs. In the case of a ruling request or request for 
internal advice that was made or initiated by an importer or other 
interested party, or in the case of an appeal of any ruling or internal 
advice decision, if an issue of confidentiality raised under paragraph 
(b) of this section cannot be resolved to the mutual satisfaction of 
Customs and the person who submitted the information to Customs, or if 
Customs determines for any other reason that there is not a sufficient 
basis for granting the request for confidential treatment, Customs will 
in writing notify the person that his request for confidential 
treatment is denied. In this case, no further submission will be 
accepted, and no conference will be held, on the issue of 
confidentiality after that notification. The person who submitted the 
information to Customs will be given 10 working days from the date of 
the notification letter to advise Customs in writing that he is 
withdrawing the ruling request or submission or appeal which contains 
the information at issue, and Customs will take one of the following 
actions:
    (A) If the issue of confidentiality relates to information 
submitted with the original ruling request or submission or appeal and 
the person who made the ruling request or submission or filed the 
appeal either withdraws the ruling request or submission or appeal or 
fails to do so in writing within the prescribed 10-day period, Customs 
will close the case file without action. Customs also will return the 
ruling request or submission or appeal to the person who filed it 
unless a FOIA request for any of that information has been filed under 
paragraph (d) of this section; or
    (B) If the issue of confidentiality relates only to information 
provided to Customs in a further submission which supplements a ruling 
request or submission or appeal and the person who made the original 
ruling request or submission or filed the appeal either withdraws the 
further submission or fails to do so in writing within the prescribed 
10-day period, Customs will return the further submission to the person 
who made the original ruling request or submission or filed the appeal 
without considering it and will proceed with consideration of the 
ruling request or submision or appeal as originally submitted so long 
as it has not been withdrawn in accordance with paragraph (c)(2)(i)(A) 
of this section.
    (ii) Action initiated by Customs. In the case of information 
contained in a submission made either in connection with a prospective 
ruling initiated by Customs under Sec. 177.17(b) or in connection with 
a request for internal advice initiated by Customs under 
Sec. 177.32(a)(1) or (b), if an issue of confidentiality raised under 
paragraph (b) of this section cannot be resolved to the mutual 
satisfaction of Customs and the person who submitted the information to 
Customs, or if Customs determines for any other reason that there is 
not a sufficient basis for granting the request for confidential 
treatment, Customs will in writing notify that person. Customs will 
proceed with the prospective ruling or internal advice decision 
notwithstanding the failure to reach agreement on the confidentiality 
issue but will attempt to prepare the prospective ruling or internal 
advice decision in such a way as to avoid disclosure of the information 
claimed to be confidential to the greatest extent practicable and 
consistent with the need to prepare meaningful rulings and decisions.


Sec. 177.42  Time limitation.

    A grant of confidential treatment under this subpart will be valid 
for a period of 3 years or for any shorter period of time specified in 
the written notice provided under Sec. 177.41(c)(1), after which time 
it will automatically expire by operation of law unless renewed under 
Sec. 177.43. Even if a grant expires, the information given 
confidential treatment will only be disclosed to the public pursuant to 
the Freedom of Information Act.


Sec. 177.43  Renewal of confidential treatment.

    A grant of confidential treatment under this subpart will be 
considered for renewal for one or more additional periods not to exceed 
3 years for each renewal period if a written request for renewal is 
received by Customs during the 3-month period prior to the scheduled 
expiration date. A request received either prior to the start of that 
3-month period or on or after the scheduled expiration date will be 
rejected as untimely, unless the requester shows good cause for the 
failure to make the request during that 3-month period. The request for 
renewal should be in the form of a letter and must contain a detailed 
explanation as to why the information continues to require confidential 
treatment. Customs will advise the requester in writing of the decision 
on the request for the extension.


Sec. 177.44  Disclosure pursuant to the FOIA.

    (a) General. Business information provided to Customs as part of a 
ruling request or other written submission or appeal under subpart B of 
this part, or provided to Customs in connection with an internal advice 
request or appeal under subpart C of this part, may be the subject of a 
request for disclosure under the Freedom of Information Act (the FOIA, 
5 U.S.C. 552) prior to resolution of a request for confidential 
treatment or subsequent to a grant of confidential treatment under 
Sec. 177.41 or when no request for confidential treatment has been made 
or granted under Sec. 177.41. In

[[Page 37395]]

any of these cases, the business information will not be disclosed 
pursuant to a FOIA request if, in the opinion of Customs, it falls 
within the scope of Exemption 4 of the FOIA.
    (b) Notice to ruling requester or submission filer or appellant and 
FOIA requester--(1) Notice to ruling requester or submission filer or 
appellant. Except as otherwise provided in paragraph (f) of this 
section, Customs will provide a ruling requester or submission filer or 
appellant with prompt notice of receipt of a request under the FOIA 
encompassing his business information whenever the ruling requester or 
submission filer or appellant has in good faith designated the 
information as commercially or financially sensitive information (even 
if Customs previously did not grant a request for confidential 
treatment under Sec. 177.41) or whenever Customs has reason to believe 
that disclosure of the information may result in commercial or 
financial injury to the ruling requester or submission filer or 
appellant. The notice will either describe the exact nature of the 
information requested or provide copies of the records or portions of 
records containing the information and will advise the ruling requester 
or submission filer or appellant of its right to file an objection to 
the requested disclosure in accordance with the procedures set forth in 
paragraph (c) of this section. Customs will also provide a copy of the 
FOIA request.
    (2) Notice to FOIA requester. When notice is given to a ruling 
requester or submission filer or appellant under paragraph (b)(1) of 
this section, Customs will in writing notify the FOIA requester that 
the notice has been given to the ruling requester or submission filer 
or appellant. The notice will also advise the FOIA requester that a 
delay by Customs in responding to the request may be considered a 
denial of access to records and that the FOIA requester may proceed 
with an administrative appeal or seek judicial review, if appropriate, 
in accordance with the FOIA and any applicable regulations. The notice 
will invite the FOIA requester to agree to a voluntary extension of 
time so that Customs may review the ruling requester's or submission 
filer's or appellant's objection to disclosure.
    (c) Filing of objection to disclosure. The ruling requester or 
submission filer or appellant may, within 10 working days of the date 
of the notice provided for in paragraph (b)(1) of this section, file 
with Customs a detailed statement of any objection to disclosure. The 
statement must specify all grounds for withholding any of the 
information under any exemption under paragraph (b) of the FOIA, and, 
in the case of Exemption 4, must demonstrate why the information is 
considered to be a trade secret or commercial or financial information 
that is privileged or confidential.
    (d) Notice of intent to disclose. Customs will consider any 
objections filed by a ruling requester or submission filer or appellant 
under paragraph (c) of this section and any other specific grounds for 
nondisclosure prior to determining whether to disclose the information 
pursuant to the FOIA request. If Customs determines that disclosure 
should be made over the objections of the ruling requester or 
submission filer or appellant, Customs will provide to the ruling 
requester or submission filer or appellant a written notice of that 
determination. The notice, a copy of which will be provided to the FOIA 
requester, will include:
    (1) A statement of the reasons the ruling requester's or submission 
filer's or appellant's objections to disclosure were not sustained;
    (2) A general description of the information to be disclosed; and
    (3) A specific date for disclosure which will be 10 working days 
after the date appearing on the notice.
    (e) Notice of FOIA lawsuit. Whenever a FOIA requester brings suit 
seeking to compel disclosure of information provided to Customs as part 
of a ruling request or other written submission or appeal under subpart 
B of this part or provided to Customs in connection with an internal 
advice request or appeal under subpart C of this part, Customs will 
promptly provide written notification of the suit to the ruling 
requester or submission filer or appellant.
    (f) Exceptions to notice requirements. The notice requirements of 
this section will not apply if:
    (1) Customs has granted confidential treatment for the information 
under Sec. 177.41 and intends to continue to honor that grant;
    (2) Customs has otherwise determined, by application of Exemption 4 
of the FOIA or pursuant to any other provision of law, that the 
information should not be disclosed;
    (3) The information lawfully has been published or otherwise made 
available to the public; or
    (4) Disclosure of the information is required by a provision of law 
other than the FOIA.


Sec. 177.52  [Amended]

    2. In newly redesignated Sec. 177.52, paragraph (b)(2) is amended 
by removing the reference ``Sec. 177.25(a)'' and adding, in its place, 
the reference ``Sec. 177.55(a)''.


Sec. 177.54  [Amended]

    3. In newly redesignated Sec. 177.54, the first sentence is amended 
by removing the reference ``Sec. 177.23'' and adding, in its place, the 
reference ``Sec. 177.53''.


Sec. 177.55  [Amended]

    4. In newly redesignated Sec. 177.55, paragraph (b)(1) is amended 
by removing the reference ``Sec. 177.24'' and adding, in its place, the 
reference ``Sec. 177.54''.


Sec. 177.57  [Amended]

    5. In newly redesignated Sec. 177.57, the first sentence is amended 
by removing the reference ``Sec. 177.23'' and adding, in its place, the 
reference ``Sec. 177.53'', and the second sentence is amended by 
removing the reference ``Sec. 177.4'' and adding, in its place, the 
reference ``Sec. 177.13''.


Sec. 177.58  [Amended]

    6. In newly redesignated Sec. 177.58, paragraph (c) is amended by 
removing the reference ``Sec. 177.25(b)(5)'' and adding, in its place, 
the reference ``Sec. 177.55(b)(5)''.


Sec. 177.60  [Amended]

    7. In newly redesignated Sec. 177.60, the first sentence is amended 
by removing the reference ``Sec. 177.22(d)'' and adding, in its place, 
the reference ``Sec. 177.52(d)''.


Sec. 177.61  [Amended]

    8. In newly redesignated Sec. 177.61, the last sentence is amended 
by removing the reference ``Sec. 177.29'' and adding, in its place, the 
reference ``Sec. 177.59'' and removing the reference ``Sec. 177.30'' 
and adding, in its place, the reference ``Sec. 177.60''.

Raymond W. Kelly,
Commissioner of Customs.
    Approved: July 9, 2001.
Timothy E. Skud,
Acting Deputy Assistant Secretary of the Treasury.
[FR Doc. 01-17630 Filed 7-16-01; 8:45 am]
BILLING CODE 4820-02-P