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HQ 966344

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February 13, 2004

CLA-2 RR:CR:TE
966344 KSH

C.J. Erickson, Esquire
Hodgson Russ LLP
Carnegie Hall Tower
152 West 57th Street
New York, New York 10019

RE: Classification of ladies lingerie tops and bottoms

Dear Mr. Erickson:

This letter concerns your request dated March 14, 2003, on behalf of your client, Jonathan K. Lingerie Inc., to delay “the implementation of the change in classification proposed in New York (NY) rulings I89340 and I89341”, both dated January 15, 2003, for ninety days from the issuance of the decisions.

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, in section 623, an extensive amendment of section 625 of the Tariff Act of 1930 (19 U.S.C. 1625) which, prior to that amendment, simply required that the Secretary of the Treasury publish in the Customs Bulletin, or otherwise make available to the public, any precedential decision with respect to any Customs transaction within 120 days of issuance of the decision.

The Mod Act amendment of section 1625 involved the following specific change among others: a new subsection (c) was added to set forth specific procedures for the modification or revocation of interpretive rulings or decisions or previous treatments by Customs.

Subsection (c) provisions require publication, in the Customs Bulletin and with opportunity for public comment, of any proposal to 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, require that interested parties be given not less than 30 days after the date of publication to submit comments on the proposed ruling or decision, and require that, after consideration of any comments received, a final ruling or decision be published in the Customs Bulletin within 30 days after the closing of the comment period, with the final ruling or decision to become effective 60 days after the date of its publication. 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.

As a result of the amendment of section 1625 of the Mod Act, extensive modifications to the part 177 texts were clearly required particularly to reflect requirements and procedures for the appeal and modification or revocation of rulings and for the limitation of court decisions.

Accordingly part 177.9(d)(3), which had previously allowed CBP to delay a ruling for up to 90 days from the date of issuance if an importer could demonstrate detrimental reliance upon an earlier ruling, was eliminated. In relevant part, part 177.9(c) now provides:

Reliance on ruling letters by others. Except when public notice and comment procedures apply under § 177.12, a ruling letter is subject to modification or revocation by Customs without notice to any person other than the person to whom the ruling letter was addressed. Accordingly, no other person should rely on the ruling letter or assume that the principles of that ruling will be applied in connection with any transaction other than the one described in the letter. However, any person eligible to request a ruling under § 177.1(c) may request information as to whether a previously-issued ruling letter has been modified or revoked by writing the Commissioner of Customs, Attention: Office of Regulations and Rulings, Washington, DC 20229, and either enclosing a copy of the ruling letter or furnishing other information sufficient to permit the ruling letter in question to be identified.

Thus, we no longer have the authority to delay the implementation of a classification ruling, such as requested here, based upon an importer’s showing of reliance. Moreover, based on the information before us we are unable to make a determination whether the merchandise at issue in the rulings you have cited, namely NY 858247, dated December 20, 1990 and NY 893422, dated January 14, 1994, is substantially similar to the merchandise at issue in rulings NY I89340 and I89341. Consequently, we cannot comment on the cited conflict in classification of those articles.

Based upon the foregoing, the above referenced file is hereby administratively closed.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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