On April 14, 2014, the Court of Appeals for the Federal Circuit (CAFC) issued its opinion inInternational Custom Products, Inc. v. United States, in which it affirmed an earlier Court of International Trade (CIT) decision in holding that "CF-29" "Notices of Action" issued by U.S. Customs and Border Protection (CBP) are subject to notice and comment procedures if they have the effect of revoking earlier CBP-issued private letter rulings.
The case involved a letter issued by CBP in 1999 classifying products imported by the Appellant a certain way, after which, in 2005, CBP issued a CF-29 Notice of Action reclassifying all pending and future entries of the product under a tariff provision subjecting it to much higher duties. After having its protest denied, the Appellant sued in the CIT alleging that 19 U.S.C. § 1625(c) required CBP to follow the notice and comment procedures when a notice of action would modify or revoke a prior interpretive ruling or decision which has been in effect for at least 60 days, or have the effect of modifying the treatment previously accorded by the Customs Service to substantially identical transactions.
The CIT held that the Notice of Action had the effect of revoking a prior interpretative ruling and that a Notice of Action having such an effect would be subject to notice and comment procedures, and the CAFC affirmed, rejecting the argument that a Notice of Action cannot effectively revoke a prior interpretative ruling because a Notice of Action is only specific to a given entry. The ruling could have the effect of significantly limiting CBP's ability to issue Notices of Action that contradict prior classification letters issued by CBP, even when those letters were not addressed to the importer the subject of the Notice, as long as that importer could demonstrate that the Notice has the effect of modifying treatment previously accorded by CBP to "substantially identical transactions."