 United States Court of Appeals for the Federal Circuit

                                        05-1087


                    CALIFORNIA INDUSTRIAL PRODUCTS, INC.,

                                                      Plaintiff-Appellee,

                                           v.


                                   UNITED STATES,

                                                      Defendant-Appellant.



        Mark L. Austrian, Collier Shannon Scott, PLLC, of Washington, DC, argued for
plaintiff-appellee. With him on the brief was Robin H. Gilbert. Of counsel was Michael
R. Kershow.

        Mikki Graves Walser, Attorney, International Trade Field Office, Commercial
Litigation Branch, Civil Division, United States Department of Justice, of New York, New
York, argued for defendant-appellant. With her on the brief were Peter D. Keisler,
Assistant Attorney General; David M. Cohen, Director, of Washington, DC; and Barbara
S. Williams, Attorney in Charge, of New York, New York. Of counsel on the brief was
Chi S. Choy, Attorney, Office of Assistant Chief Counsel, International Trade Litigation,
United States Customs and Border Protection, of New York, New York.

Appealed from: United States Court of International Trade

Judge Evan J. Wallach
    United States Court of Appeals for the Federal Circuit

                                         05-1087


                     CALIFORNIA INDUSTRIAL PRODUCTS, INC.,

                                                               Plaintiff-Appellee,

                                            v.


                                   UNITED STATES,

                                                               Defendant-Appellant.



                            _______________________

                           DECIDED: February 1, 2006
                           _______________________



Before MICHEL, Chief Judge, SCHALL, and GAJARSA, Circuit Judges.

SCHALL, Circuit Judge.


                                       DECISION

       The United States appeals from the final decision of the United States Court of

International Trade in California Industrial Products, Inc. v. United States, 350 F. Supp.

2d 1135 (Ct. Int’l Trade 2004). In its decision, the court granted the motion of California

Industrial Products, Inc. (“CIP”) for summary judgment and denied the government’s

cross-motion for summary judgment. In granting CIP’s motion, the court overturned the
ruling of the United States Customs Service (“Customs”)1 that CIP was not entitled to

manufacturing substitution drawbacks under 19 U.S.C. § 1313(b) (1994)2 based upon

its exportation of steel scrap. The court held that Customs erred in denying CIP’s

drawback claims because, before doing so, it failed to conduct notice and comment

proceedings. Such proceedings were required under 19 U.S.C. § 1625(c), the court

determined, because Customs’ denial of CIP’s claims represented, in the words of that

statute, a modification of the favorable “treatment previously accorded by [Customs] to

substantially identical transactions.” The court held that Customs was bound by this

previous favorable treatment. We affirm.

                                    BACKGROUND

                                           I.

      Under 19 U.S.C. § 1313, a manufacturer is entitled to recover a portion of

previously paid Customs duties on imported merchandise that is subsequently exported

or destroyed. In essence, the statute operates to give a party a refund on Customs

duties. The refund is called a drawback.3 Subsection (b) of section 1313 allows for




      1
              Effective March 1, 2003, the United States Customs Service was renamed
the United States Bureau of Customs and Border Protection. Homeland Security Act of
2002, Pub. L. No. 107-296, § 1502, 116 Stat. 2135, 2308-09 (2002).
       2
              Generally, the provisions of the United States Code (1994) relating to
drawback that were in effect in 1995, the relevant period of time, are cited. Section
1313(b), which governs manufacturing substitution drawback, has not been amended
since 1995.
       3
              A “drawback” is currently defined in 19 C.F.R. § 191.2(i) as “the refund or
remission, in whole or in part, of a customs duty, fee or internal revenue tax which was
imposed on imported merchandise under Federal law because of its importation . . . .”
19 C.F.R. § 191.2(i) (2005). In 1995, a “drawback” was defined similarly as “a refund or
remission, in whole or in part, of a customs duty, internal revenue tax, or fee lawfully
assessed or collected because of a particular use made of the merchandise on which
the duty, tax or fee was assessed.” 19 C.F.R. § 191.2(a) (1995). The purpose of


05-1087                                    2
manufacturing substitution drawbacks, through which a manufacturer may receive a

drawback when the manufacturer substitutes the same “kind and quality” of goods for

those that were actually originally imported. Section 1313(b) provides:

              If imported duty-paid merchandise and any other
              merchandise (whether imported or domestic) of the same
              kind and quality are used in the manufacture or production of
              articles within a period not to exceed three years from the
              receipt of such imported merchandise by the manufacturer
              or producer of such articles, there shall be allowed upon the
              exportation, or destruction under customs supervision, of
              any such articles, notwithstanding the fact that none of the
              imported merchandise may actually have been used in the
              manufacture or production of the exported or destroyed
              articles, an amount of drawback equal to that which would
              have been allowable had the merchandise used therein
              been imported . . . .

19 U.S.C. § 1313(b).      In order to receive a manufacturing substitution drawback

pursuant to section 1313(b), a manufacturer files a drawback claim requesting payment.

19 C.F.R. § 191.2(i) (1995).4

       For the purpose of simplifying the drawback claiming process for certain common

manufacturing operations, Customs issues offers in the form of general manufacturing

drawback contracts.     Id. §§ 191.2(f), 191.41.5      A manufacturer who meets the

requirements of a general manufacturing drawback contract may accept Customs’ offer

by submitting a letter notifying Customs of its intent to comply with the general contract.


(Cont’d. . . .)
allowing drawbacks is two-fold: to increase foreign commerce and to promote domestic
manufacturing. United States v. Int’l Paint Co., 35 C.C.P.A. 87, 90 (1948).
       4
                The regulations governing drawback were amended in 1998. See 63 Fed.
Reg. 10970 (Mar. 5, 1998). In this opinion, we cite to the regulations as in effect in
1995. Except as otherwise noted, the current regulations, see 19 C.F.R. § 191.1 et seq.
(2005), do not differ materially from the regulations as in effect in 1995.
       5
                When it amended the drawback regulations in 1998, Customs changed
the name of general drawback contracts to “general drawback rulings,” 63 Fed. Reg. at
10973. 19 C.F.R. §§ 191.1(p), 191.7.


05-1087                                     3
Id. §§ 191.2(f), 191.42(b). Customs then notifies the manufacturer of its receipt of the

letter of intent. Id. § 191.43. The contract is effective for fifteen years from the date of

Customs’ acknowledgement of receipt.6 Id. The manufacturer may then file individual

drawback claims that comply with the general drawback contract. Id. § 191.45. If an

individual drawback claim is denied, the manufacturer may file a protest with Customs

pursuant to 19 U.S.C. § 1514. An individual’s right to a manufacturing substitution

drawback under section 1313(b) is limited by 19 U.S.C. § 1313(l), which makes “the

privileges provided for in this section . . . subject to compliance with such rules and

regulations as the Secretary of the Treasury shall prescribe . . . .” 19 U.S.C. § 1313(l).

The regulations are made binding on officers of Customs by 19 U.S.C. § 1502(b).

       In addition to 19 U.S.C. § 1313(b) and the associated regulations, when dealing

with drawback claims, the Secretary of the Treasury (the “Secretary”) also must comply

with the procedural requirements of 19 U.S.C. § 1625(c). Under section 1625(c), the

Secretary must follow notice and comment procedures before issuing an interpretive

ruling or decision that would change a preexisting “treatment.” Section 1625(c) provides

in relevant part:

              A proposed interpretive ruling or decision which would--
                     (1) 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
                     (2) have the effect of modifying the treatment
                     previously accorded by the Customs Service to
                     substantially identical transactions;
              shall be published in the Customs Bulletin. The Secretary
              shall give interested parties an opportunity to submit, during

       6
              Under the regulations currently in effect, a general manufacturing
drawback contract lasts indefinitely unless no claims are filed for five years or the
manufacturer or producer files a request to terminate the contract. 19 C.F.R.
§§ 191.7(d), 191.8(h) (2005).


05-1087                                      4
                 not less than the 30-day period after the date of such
                 publication, comments on the correctness of the proposed
                 ruling or decision. After consideration of any comments
                 received, the Secretary shall publish a final ruling or decision
                 in the Customs Bulletin within 30 days after the closing of the
                 comment period. The final ruling or decision shall become
                 effective 60 days after the date of its publication.

19 U.S.C. § 1625(c) (1994) (emphases added).7

       In 2002, the Secretary promulgated regulations expressly defining “treatment

previously accorded by the Customs Service to substantially identical transactions” as

set forth in 19 U.S.C. § 1625(c). See 19 C.F.R. § 177.12(c) (2005). Subsection (c)(1)(i)

sets forth what must be shown to establish “substantially identical transactions” that give

rise to a “treatment.”      Subsection (c)(1)(ii) establishes guidelines for case-by-case

inquiries as to whether particular transactions involve sufficient Customs review to form

the basis of a “treatment.” The evidentiary burden for establishing a “treatment” is set

forth in subsection (c)(1)(iv). This case concerns subsection (c)(1)(iii), which limits the

“substantially identical transactions” that may form the basis of a section 1625(c)

“treatment” to only the transactions of the person alleging entitlement to section

1625(c)’s notice and comment process.               19 C.F.R. § 177.12(c)(1)(iii) provides in

relevant part:

                 The issuance of an interpretive ruling that has the effect of
                 modifying or revoking the treatment previously accorded by
                 Customs to substantially identical transactions must be in
                 accordance with the procedures set forth in paragraph (c)(2)
                 of this section. The following rules will apply for purposes of
                 determining under this section whether a treatment was
                 previously accorded by Customs to substantially identical
                 transactions of a person:

       7
            The statutory provisions cited are those that were in effect at the time
CIP’s drawback claims were formally denied in January of 1998. No substantive
amendments have been made to 19 U.S.C. § 1625 have been made since that time.


05-1087                                         5
                                               ***

              (iii) Customs will not find that a treatment was accorded to a
              person’s transactions if:

              (A) The person’s own transactions were not accorded the
              treatment in question over the 2-year period immediately
              preceding the claim of treatment . . . .

19 C.F.R. § 177.12(c)(1)(iii) (emphases added). Thus, under the regulations enacted in

2002, a “treatment” arises only as the result of “substantially identical transactions”

involving   the   person      claiming   the   benefit   of   section   1625(c).   See   id.

§ 177.12(c)(1)(iii)(A). Also in 2002, Customs repealed 19 C.F.R. § 177.9(e). That

provision contained language suggesting that transactions could be “substantially

identical” so as to form a “treatment” even if they did not involve the person claiming the

benefit of section 1625(c).

                                               II.

       CIP operates steel conversion mills that manufacture flat-rolled steel sheet

products.   CIP purchases the steel it uses for its products from domestic trading

companies, which previously paid Customs duties when importing the steel. These

domestic trading companies factor the Customs duties into the price CIP pays them for

the steel. In CIP’s mills, cold-rolled sheets of steel are trimmed to the desired size,

rolled in coils, and sold to customers. Trim or steel scrap is the material trimmed off the

sheets and may be re-smelted to make new steel products. CIP exports the steel trim

or scrap it produces in its manufacturing process and seeks to obtain drawback on this

product.




05-1087                                         6
      On February 16, 1994, CIP sent a letter of intent to comply with Treasury

Decision (“T.D.”) 81-74, 15 Cust. B. & Dec. 176 (Mar. 31, 1981).8 CIP revised its letter

of intent on October 25, 1995, to add several additional factories that would be

operating under T.D. 81-74. T.D. 81-74 comprises a general drawback contract for

manufactured steel articles composed of duty-paid steel or steel of the same kind or

quality under 19 U.S.C. § 1313(b).      Id. at 176-77.   T.D. 81-74 creates a specific

exception for “waste”:

                     The drawback claimant understands that no drawback
             is payable on any waste which results from the
             manufacturing operation. Unless the claim for drawback is
             based on the quantity of steel appearing in the exported
             articles, the drawback claimant agrees to keep records to
             establish the value (or the lack of value), the quantity, and
             the disposition of any waste that results from manufacturing
             the exported articles. If no waste results, the drawback
             claimant agrees to keep records to establish that fact.

T.D. 81-74, 15 Cust. B. & Dec. at 178. Neither CIP’s original February 16, 1994 letter

nor its revised October 25, 1995 letter of intent to comply with T.D. 81-74 mentioned

that CIP intended to claim a manufacturing substitution drawback for steel trim or scrap.

Cal. Indus. Prods., 350 F. Supp. 2d at 1137-38.

      Pursuant to its letter of intent to comply with T.D. 81-74, CIP filed twenty-six

drawback claims between December 2, 1995 and March 7, 2002. Id. at 1138. Two of

these claims are at issue in this case.9 The bill of lading for each of these two claims



      8
             When Customs amended the drawback regulations in 1998, it required
that general drawback contracts be published in Appendix A of 19 C.F.R. Part 191,
Subpart A. 19 C.F.R. § 191.7(b). T.D. 81-74 is now listed as “General Manufacturing
Drawback Ruling Under 19 U.S.C. 1313(b) For Steel (T.D. 81-74).” 19 C.F.R. § 191,
Subpart A, App. A, XII (2005).
       9
             Although only two claims are involved in the present appeal, there are
eleven other claims that have been suspended pending the outcome of this litigation.


05-1087                                    7
stated that part of the claim involved “Iron and Steel Scrap.” Id. at 1138. On January 2,

1998, Customs denied both claims on the ground that scrap was not eligible for a

drawback.   Id.   In so doing, Customs stated, “CANNOT CLAIM ON SCRAP,” and,

“DRAWBACK IS NOT ALLOWED ON SCRAP.”

      Prior to the denial of CIP’s claims, between June of 1992 and November of 1997,

Customs liquidated 145 entries for drawback on steel scrap. The entries were filed by

five companies other than CIP, including Calstrip Steel Corporation (“Calstrip”) and

Precision Specialty Metals, Inc. (“Precision”). CIP approached the consulting firm that

assisted these five companies in filing drawback claims in October of 1995 with a

request for aid in obtaining drawback for steel scrap. The firm agreed to assist CIP in

this endeavor. However, in 1996, after CIP filed its first claims for drawback, but before

it had received any decision, Customs began denying drawback claims for steel scrap

made by other companies such as Calstrip and Precision. In response to Calstrip’s

claims for drawback on steel scrap, Customs issued Headquarters Ruling Letter (“HQ”)

227375 on October 10, 1997, denying the claims. HQ 227375, slip op. (Oct. 10, 1997),

available at 1997 WL 897192. In HQ 227375, Customs ruled that steel scrap was

“waste” and therefore not eligible for drawback. HQ 227375, slip op. at 1. Based on

HQ 227375, Precision’s claims for drawback on steel scrap also were denied. Precision

successfully challenged the denial of its drawback claims for steel scrap in the Court of

International Trade. Precision Specialty Metals, Inc. v. United States, 116 F. Supp. 2d




(Cont’d. . . .)
Cal. Indus. Prods., 350 F. Supp. 2d at 1138 n.9. CIP received accelerated payments for
all thirteen of these claims. Id. Customs then demanded return of the accelerated
payments on steel scrap on the ground that it was not eligible for drawback. Id. at 1138.


05-1087                                     8
1350 (Ct. Int’l Trade 2000) (“Precision I”); Precision Specialty Metals, Inc. v. United

States, 182 F. Supp. 2d 1314 (Ct. Int’l Trade 2001) (“Precision II”).10

       CIP responded to Customs’ denial of its claims for drawback on steel scrap by

timely filing a request for further review in the form of a protest. In the protest, CIP

argued that Customs had impermissibly retroactively changed its practice regarding

drawback claims, that certain types of valuable waste are entitled to drawback, and that

Customs had erred when it found that steel scrap was waste. On March 3, 1998,

Customs issued a protest review decision affirming the January 2, 1998 denial of CIP’s

drawback claims. Customs based its denial of CIP’s protest on HQ 227375.




       10
              Like CIP, Precision filed claims with Customs for drawback on steel scrap.
Although Customs initially granted 69 drawback claims to Precision, it began denying
Precision’s claims in 1996. Precision I, 116 F. Supp. 2d at 1354-55. Precision
challenged Customs’ decision in the Court of International Trade, alleging, among other
things, that the denial of its claims without first following notice and comment
procedures violated section 1625(c). Responding to cross-motions for summary
judgment, the court conducted a lengthy analysis of section 1625(c) and determined
that Customs’ liquidation of 69 of Precision’s claims for drawback on steel scrap
constituted a “treatment” under section 1625(c) because they involved more than a
single transaction. Id. at 1377. However, the court found that Precision had failed to
come forward with evidence demonstrating the existence of other factors necessary to
trigger the procedural requirements of section 1625(c), making summary judgment
inappropriate. Id. at 1378-79.
       As the parties were preparing for trial, the Court of International Trade decided
that the issues before it were, in fact, entirely legal. It therefore directed the parties to
move again for summary judgment. Precision II, 182 F. Supp. 2d at 1316. In Precision
II, the Court of International Trade reiterated its interpretation of “treatment” under
section 1625(c) from Precision I and found, again, that Customs’ actions in granting
Precision’s claims prior to 1996 comprised a “treatment.” Id. at 1328-29. It then
granted summary judgment in favor of Precision on the ground that Customs had failed
to comply with section 1625(c) when it denied Precision’s drawback claims—thereby
reversing that treatment—without first engaging in a notice and comment process. Id.
at 1329-30.


05-1087                                      9
                                             III.

       CIP timely filed suit in the Court of International Trade challenging Customs’

denial of its protest. See 28 U.S.C. § 2636(c) (2000). The Court of International Trade

exercised jurisdiction over CIP’s suit pursuant to 19 U.S.C. § 1581(a).

       In due course, CIP and the United States filed cross-motions for summary

judgment. In its motion, CIP urged the Court of International Trade to adhere to the

interpretation of the term “treatment” in 19 U.S.C. § 1625(c) that it had adopted in

Precision I, 116 F. Supp. 2d at 1374, and Precision II, 182 F. Supp. 2d at 1323-28. CIP

also argued that the “substantially identical transactions” that form the basis of a

“treatment” in section 1625(c) may be transactions of parties other than the person

claiming that section 1625(c)’s notice and comment process applies. As a result, CIP

urged, under section 1625(c), Customs was required to engage in a notice and

comment process before changing the favorable treatment previously accorded to

claims for drawback on steel scrap. Because Customs did not do so, CIP argued, it

was bound by that favorable treatment in CIP’s case. Plaintiff’s Motion for Summary

Judgment at 9-10. Thus, CIP contended that the fact that CIP itself had not previously

been afforded drawbacks on steel scrap did not preclude the Court of International

Trade from finding that a “treatment” was established through Customs’ actions toward

the “substantially identical” claims of other steel scrap exporters. Id.

       In its cross-motion for summary judgment, the government did not dispute the

Court of International Trade’s finding in Precision I and Precision II that Customs’ grants

of drawback with respect to Precision formed the basis of a “treatment” with respect to

Precision.    Defendant’s Motion for Summary Judgment at 14.                However, the




05-1087                                      10
government argued that because 19 U.S.C. § 1625(c) is silent as to whether the

“treatment” afforded a company like Precision can be applied to a second company like

CIP, the regulation set forth at 19 C.F.R. § 177.12(c)(1)(iii)(A) should be afforded

deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984). Defendant’s Motion for Summary Judgment at 8-9. The government

argued that, under 19 C.F.R § 177.12(c)(1)(iii)(A), drawback claims filed by other

companies, such as Calstrip and Precision, did not constitute “substantially identical

transactions” that CIP, another company, could point to as giving rise to a “treatment”

under section 1625(c). Defendant’s Motion for Summary Judgment at 10.

      The Court of International Trade granted CIP’s motion for summary judgment

and denied the government’s cross-motion.         The court rejected the government’s

suggestion that it give Chevron deference to the Customs regulation at 19 C.F.R.

§ 177.12(c)(1)(iii)(A). Doing so, the court concluded, would amount to impermissible

retroactive application of the regulation. Cal. Indus. Prods., 350 F. Supp. 2d at 1141-42.

Likewise, the court declined to give deference under Skidmore v. Swift & Co., 323 U.S.

134 (1944), to Customs’ HQ 227375 because it concluded it did not represent a

consistent agency position. Cal. Indus. Prods., 350 F. Supp. 2d at 1140-41. Instead,

the court accepted CIP’s invitation to adopt the Precision I and Precision II courts’

interpretation of “treatment” in section 1625(c)(2).   Id. at 1142-45.    The court was

persuaded that a “treatment” can be established through Customs’ transactions with

other companies, id. at 1145, and reasoned that CIP had demonstrated that Customs

had established a “treatment” under section 1625(c) with respect to drawbacks for steel

scrap based on Customs’ grants of drawback to other companies. Consequently, the




05-1087                                    11
court ruled, Customs violated the procedural requirements of section 1625(c) when,

before denying CIP’s drawback claims, it changed that “treatment” without following

notice and comment procedures. Id. at 1147. The court therefore held that Customs

was “bound by and subject to its earlier treatment of steel scrap as eligible for

drawback.”11 Id. at 1148.

      The government has timely appealed the Court of International Trade’s decision.

We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1295(a)(5).

                                      DISCUSSION

                                           I.

      The Court of International Trade properly grants summary judgment “when there

is no genuine issue as to any material fact and . . . the moving party is entitled to a

judgment as a matter of law.” Sea-Land Serv. Inc. v. United States, 239 F.3d 1366,

1371 (Fed. Cir. 2001) (quoting Ct. Int’l Trade R. 56(d)). We review a grant of summary

judgment by the Court of International Trade “for correctness as a matter of law,

deciding de novo the proper interpretation of the governing statute and regulations as

well as whether genuine issues of material fact exist.” Guess?, Inc. v. United States,

944 F.2d 855, 857 (Fed. Cir. 1991).

                                           II.

      On appeal, the government argues first that the alleged violation of section

1625(c) was not raised before the agency and therefore was not properly heard for the

first time by the Court of International Trade. According to the government, the court



      11
            The court stated that its ruling was limited to the facts of “this case” and
should not be deemed precedential for claims of drawback on steel scrap filed
subsequent to the publication of its opinion. Id.


05-1087                                   12
“should have remanded the matter as it relates to section 1625(c)(2) to allow Customs

to apply its regulations and carry out its administrative functions as charged by

Congress.”   Consequently, the government argues, under the doctrine of “primary

jurisdiction” we may not consider the issue.

      On the merits of the section 1625(c) issue, the government raises several

arguments in support of reversing the Court of International Trade’s ruling that Customs

violated 19 U.S.C. § 1625(c) when it denied CIP’s claims. As seen above, section

1625(c) requires that Customs follow notice and comment procedures before issuing an

“interpretive ruling or decision which would . . . have the effect of modifying the

treatment previously accorded by the Customs Service to substantially identical

transactions.” The government contends that two provisions of section 1625(c) are not

implicated by its actions regarding CIP and that, therefore, section 1625(c) is

inapplicable. First, the government argues that none of Customs’ actions with respect

to CIP comprised an “interpretive ruling or decision” under section 1625(c). Second, the

government argues that section 1625(c) does not apply in this case because the

previously liquidated claims upon which CIP asserts that it relied were not “substantially

identical transactions.”   Relying solely on the terms of Precision’s contract, the

government claims that there are substantial differences between the drawback

contracts of the parties that previously were allowed drawback and CIP’s drawback

contract. The government also claims that the Court of International Trade erred when

it did not afford Chevron deference to its regulation at 19 C.F.R. § 177.12(c)(1)(iii)(A).

As noted, that regulation limits the reach of the notice and comment requirement of

section 1625(c) to the situation in which Customs issues an interpretive ruling with




05-1087                                    13
respect to a person and that ruling has the effect of modifying or revoking the treatment

previously accorded to “substantially identical transactions” of that person. Thus, the

government argues that the Court of International Trade erred in ruling that the 145

previously liquidated claims for drawback on steel scrap, which were not claims of CIP,

were “substantially identical transactions” to CIP’s drawback claims.

      Additionally, the government contends that the Court of International Trade erred

in its interpretation of 19 U.S.C. § 1625(c) because its construction conflicts with the

overall statutory scheme for drawback, particularly 19 U.S.C. § 1313(l) and 19 U.S.C.

§ 1502(b). Finally, the government urges that steel scrap is waste for which CIP was

not entitled to a drawback and that its ruling letter to that effect, HQ 227375, should be

afforded deference under Skidmore.

      Responding to the government’s arguments, CIP argues first that the

government’s violation of section 1625(c) was properly raised before the Court of

International Trade. According to CIP, an alleged violation of section 1625(c) is not the

type of claim that first must be raised before Customs.

      Turning to the merits of the section 1625(c) issue, CIP states that, in the Court of

International Trade, it was challenging a protest review decision, which CIP asserts was

a “decision” within the meaning of section 1625(c).       Alternatively, CIP states that

Customs’ decision to deny its drawback claims was based on HQ 227375, which CIP

asserts also is a “ruling” within the meaning of section 1625(c). With regard to the

government’s argument that Customs’ prior liquidations of other companies’ claims for

drawback on steel scrap did not constitute “substantially identical transactions” under

section 1625(c) because there are substantial differences between the drawback




05-1087                                    14
contracts of those parties and CIP’s drawback contract, CIP argues that there are only

insubstantial differences in the other companies’ letters of intent to comply with T.D. 81-

74 and CIP’s letter of intent. Next, CIP addresses the government’s argument that

Customs’ previous drawback allowances were not “substantially identical transactions”

so as to form the basis of a “treatment” with respect to CIP. CIP urges that we should

not accord Chevron deference to the definition of what constitutes “substantially

identical transactions” giving rise to a “treatment” that is contained in the regulation at

19 C.F.R. § 177.12(c)(1)(iii)(A).   CIP asks us to hold that the numerous grants of

drawbacks for scrap issued to other companies, like Precision, were “substantially

identical transactions” vis-à-vis CIP’s drawback claims so that they formed a “treatment”

for purposes of 19 U.S.C. § 1625(c). CIP argues that because section 1625(c) applies

to Customs’ actions towards it, the Court of International Trade correctly granted

summary judgment that Customs violated section 1625(c) by denying CIP’s claims for

drawback without first following notice and comment procedures.

       With regard to the government’s assertion that the Court of International Trade’s

interpretation of section 1625(c) conflicts with 19 U.S.C. § 1313(l) and 19 U.S.C.

§1502(b), CIP argues that the court’s ruling does not impermissibly restrict the

Secretary’s ability to act under either statute. Finally, CIP contends that the Court of

International Trade properly gave no deference to HQ 227375, in which Customs ruled

that steel scrap is not eligible for drawback because it is waste.

                                            III.

       We see no error in the Court of International Trade’s holding that, pursuant to 19

U.S.C. § 1625(c), Customs was required to engage in a notice and comment process




05-1087                                     15
before issuing HQ 227375. We therefore affirm the court’s decision granting CIP’s

motion for summary judgment and denying the government’s cross-motion.

                                           A.

      As a preliminary matter, we reject the government’s argument that the doctrine of

“primary jurisdiction” is a bar to our review of whether the government violated 19

U.S.C. § 1625(c). The doctrine of “primary jurisdiction” requires that “in cases raising

issues of fact not within the conventional experience of judges or cases requiring the

exercise of administrative discretion, agencies created by Congress for regulating the

subject matter should not be passed over.” Nippon Steel Corp. v. United States, 219

F.3d 1348, 1353 (Fed. Cir. 2000) (quoting Far E. Conference v. United States, 342 U.S.

570, 574 (1952)). The government correctly notes that Customs’ violation of 19 U.S.C.

§ 1625(c) was not explicitly raised in CIP’s protest or in its summons in the Court of

International Trade. It then argues that, under the doctrine of “primary jurisdiction,” we

should remand to Customs for it to decide in the first instance the section 1625(c) issue.

We do not agree. We are not asked in this case to make any factual determinations

that should be reserved for Customs under the doctrine of “primary jurisdiction.”

Compare Union Pac. R.R. Co. v. United States, 111 F. Supp. 266, 268 (Ct. Cl. 1953)

(finding that a legal question as to which of two rates apply was not reserved exclusively

for the agency), with Nippon Steel, 219 F.3d at 1354-55 (noting that the inquiry as to

whether an antidumping order was circumvented must first be heard by the agency

because    of   “expertise   and   experience”   required   to   make   complex    factual

determinations). Instead, the alleged violation of section 1625(c) presents purely legal

questions regarding the construction of “interpretive ruling or decision” and




05-1087                                    16
“substantially identical transactions.” Therefore, the doctrine of “primary jurisdiction”

does not require us to remand to Customs the issue of whether Customs violated

section 1625(c) when it denied CIP’s drawback claims.

                                            B.

       Turning to the merits, section 1625(c)(2) mandates that Customs follow notice

and comment procedures before issuing an “interpretive ruling or decision which would .

. . have the effect of modifying the treatment previously accorded by the Customs

Service to substantially identical transactions.” 19 U.S.C. § 1625(c)(2). As noted, two

aspects of section 1625(c)’s mandate are disputed by the parties: (1) whether Customs

issued an “interpretive ruling or decision” with respect to CIP, and (2) whether prior

transactions of companies other than CIP were “substantially identical” to CIP’s

transactions with Customs so that they constituted a “treatment.”

                                             1.

       Section 1625(c) only applies when Customs issues an “interpretive ruling or

decision.”   See Sea-Land, 239 F.3d at 1372.           We think Customs did issue an

“interpretive ruling or decision” to CIP in this case. Section 1625(c) is a subsection of

19 U.S.C. § 1625, which is titled “Interpretive rulings and decisions; public information.”

Subsection (a) of section 1625, titled “Publication,” provides as follows:

                      Within 90 days after the date of issuance of any
              interpretive ruling (including any ruling letter, or internal
              advice memorandum) or protest review decision under this
              Act with respect to any customs transaction, the Secretary
              shall have such ruling or decision published in the Customs
              Bulletin or shall otherwise make such ruling or decision
              available for public inspection.




05-1087                                     17
19 U.S.C. § 1625(a) (emphases added). Thus, “interpretive ruling” is expressly defined

as “including any ruling letter, or internal advice memorandum.” Id. At the same time,

two lines later, the text refers back to the previously noted “interpretive ruling . . . or

protest review decision” as “such ruling or decision.”     “[I]nterpretative ruling . . . or

protest review decision” and the later shorthand reference to that phrase (“such ruling or

decision”) should be construed consistently in section 1625. See Timex V.I., Inc. v.

United States, 157 F.3d 879, 884 (Fed. Cir. 1998) (“It is well-settled that words

appearing in a statute should be read consistently: a particular word appearing multiple

times in a statutory provision should be given the same reading, unless there is a clear

Congressional intent to the contrary.”).    In short, “decision” in the phrase “ruling or

decision” in 19 U.S.C. § 1625(c), includes a “protest review decision.” CIP is appealing

from Customs’ March 3, 1998 protest review decision.          Furthermore, the March 3

protest review decision was based on a Customs’ ruling letter, HQ 227375, which is a

ruling letter and, therefore, also an “interpretive ruling” under section 1625(a). We hold

that CIP is appealing from both a “decision” and a “ruling” within the meaning of 19

U.S.C. § 1625(c).

                                            2.

      Addressing the second issue relating to section 1625(c), we do not agree with

the government that the statute does not apply because the prior liquidations of other

companies’ drawback claims were not “substantially identical” to CIP’s claims. The

government argues first that Precision’s previously granted claims for drawback on steel

scrap were not “substantially identical” because Precision’s letter of intent to comply

with T.D. 81-74 listed “trim,” which is a synonym for scrap. See Precision II, 182 F.




05-1087                                     18
Supp. 2d at 1329 (mentioning the contents of Precision’s letter). In contrast, CIP’s letter

of intent did not list “trim” or “scrap” as a permissible item for which a drawback would

be issued. However, the requirement that transactions be “substantially identical” does

not require complete identity. While differences in the letters of intent to comply with a

general drawback contract underlying two different transactions could conceivably

render two transactions substantially different in another case, the claims of Precision

and CIP were, in fact, “substantially identical” within the meaning of 19 U.S.C.

§ 1625(c). Both Precision’s and CIP’s drawback claims were based on T.D. 81-74, and

Precision’s and CIP’s letters of intent both purported to comply with the terms of T.D.

81-74. See Precision II, 182 F. Supp. 2d at 1329. Furthermore, both companies were

denied drawbacks because their bills of lading mentioned scrap, which Customs

interpreted to be “waste” and therefore not eligible for drawback. See id. at 1318.

There is no evidence that the mention of “trim” in Precision’s original letter of intent

played any role in Customs’ ruling in that case or that the lack of a mention of “trim” had

any effect on its ruling on CIP’s claim.     We thus conclude that there was only an

insubstantial difference between the two companies’ claims.12




       12
               Additionally, Precision’s claims account for just 69 of the 145 successful
pre-1996 claims for drawback on steel scrap on which CIP relies. In HQ 227375,
Customs describes Calstrip’s letter of intent as stating “its intention to adhere to and
comply with the conditions of [T.D.] 81-74 [dated March 31, 1981,] drawback contract
under 19 USC 1313(b), articles manufactured using steel.” Unlike Precision’s letter, no
mention appears to have been made of scrap or trim in Calstrip’s letter of intent. Thus,
at least some of the letters of intent appear to have had the same content as CIP’s letter
of intent and were therefore “substantially identical” even under the government’s
interpretation.


05-1087                                     19
                                           3.

      The main issue in this case with respect to section 1625(c) is whether

“substantially identical transactions” should be defined narrowly in accord with Customs’

recently promulgated regulation at 19 C.F.R. § 177.12(c)(1)(iii)(A). As already seen,

under section 177.12(c)(1)(iii)(A), as far as any person is concerned, “substantially

identical transactions” giving rise to a “treatment” are only those transactions between

Customs and that person. See 19 C.F.R. § 177.12(c)(1)(iii)(A) (“Customs will not find

that a treatment was accorded to a person’s transactions if the person’s own

transactions were not accorded the treatment in question.”).           Accordingly, the

government contends that Customs’ granting of drawbacks to other companies such as

Precision could not form the basis of a “treatment” under 19 U.S.C. § 1625(c) with

regard to CIP.13




      13
             In its cross-motion for summary judgment in this case, the government
agreed with the holdings in Precision I and Precision II that the 69 drawback claims of
Precision, which Customs paid, comprised a “treatment” with regard to Precision. In its
motion, the government wrote:

                    We do not dispute the Precision court’s conclusion
             that, in spite of Customs publications, the erroneous
             liquidations granting drawback to Precision’s claims for
             exported steel scrap constituted a “treatment” under 19
             U.S.C. § 1625 for Precision itself. Customs also erroneously
             granted drawback to other claimants (i.e., Calstrip,
             Combined Metals of Chicago, Thypin, and Ulbrich) for their
             individual claims of exported steel scrap. These claimants
             did not get the benefit of Precision’s treatment, but were
             erroneously accorded their own—independent—treatment
             by Customs.
                    However, these erroneous liquidations cannot be
             expanded to include importers who were not similarly
             affected and for whom such expectations could not have
             been created. Congress could not have intended that,


05-1087                                    20
        Under Chevron, we must follow a two step inquiry to determine if deference

should be given to the government’s narrow definition of “substantially identical

transactions” that give rise to a “treatment” in 19 C.F.R. § 177.12(c)(1)(iii)(A). First, “we

must . . . carefully investigate the matter to determine whether Congress’s purpose and

intent on the question at issue is judicially ascertainable.” Timex V.I., 157 F.3d at 881

(citing Chevron, 467 U.S. at 842-43 & n.9). Second, if Congress has not spoken to the

meaning of “substantially identical transactions,” then we must give effect to Customs’

regulation so long as it represents a reasonable interpretation of the statute.           See

Chevron, 467 U.S. at 844, 846.

        When determining whether Congress has expressly spoken as to the meaning of

a statutory term such as “substantially identical transactions,” we must utilize the

“traditional tools of statutory construction.” Timex V.I., 157 F.3d at 882. We begin our

inquiry with the plain meaning of the text of the statute itself. Defenders of Wildlife v.

Hogarth, 330 F.3d 1358, 1366 (Fed. Cir. 2003) (“Deciphering the intent of Congress

begins with the text of the statute.”); Timex V.I., 157 F.3d at 882 (“The first and foremost

‘tool’ to be used is the statute’s text, giving it its plain meaning.” (citing VE Holding Corp.

v. Johnson Gas Appliance Co., 917 F.2d 1574, 1579 (Fed. Cir. 1990))).                 Section

1625(c) requires that Customs follow notice and comment procedures before issuing

“[a] proposed interpretive ruling or decision” that would “have the effect of modifying the

treatment previously accorded by the Customs Service to substantially identical



(Cont’d. . . .)
                  having made an error, Customs must then uniformly apply
                  that error to all importers.

        Defendant’s Motion for Summary Judgment at 14.


05-1087                                       21
transactions.”   19 U.S.C. § 1625(c) (emphasis added).           The statute provides no

definition of the term “substantially identical transactions.”    However, the intent of

Congress may be clear even in the absence of an express definition of the statutory

term. See, e.g., Chevron, 467 U.S. at 842.

       When a particular term is not expressly defined in a statute, the meaning of that

term may be discerned by “look[ing] to the provisions of the whole law, and to its object

and policy.” Warner-Lambert Co. v. Apotex Corp., 316 F.3d 1348, 1355 (Fed. Cir.

2003) (quoting U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439,

455 (1993)).      Although section 1625 does not define “substantially identical

transactions,” the language of the statute indicates that Congress clearly intended

transactions between Customs and multiple parties to be “substantially identical

transactions.” Section 1625(c) states that when it changes a prior “treatment,” Customs

“shall give interested parties an opportunity to submit, during not less than the 30-day

period after the date of such publication, comments on the correctness of the proposed

ruling or decision.” 19 U.S.C. § 1625(c) (emphasis added). We think that if the words

“substantially identical transactions” in section 1625(c) were only meant to refer, in each

case, to prior treatment accorded the person claiming entitlement to the notice and

comment process of the statute, as provided in 19 C.F.R. § 177.12(c)(1)(iii)(A), it is

unlikely that Congress would have required that “interested parties” be given notice of

the change of a prior “treatment.” In our view, use of the words “interested parties”

indicates that Congress intended, contrary to 19 C.F.R. § 177.12(c)(1)(iii)(A), that

“substantially identical transactions” forming the basis of a “treatment” include




05-1087                                     22
transactions other than transactions of just the person before Customs claiming the right

to a notice and comment process.

       Customs regulations in effect at the time of the enactment of section 1625(c) also

support the view that Congress intended “substantially identical transactions” forming a

single “treatment” to include the transactions of multiple parties. These regulations are

appropriately considered in the construction of 19 U.S.C. § 1625(c) because Congress

is presumed to be aware of pertinent existing law. Bristol-Myers Squibb Co. v. Royce

Lab., 69 F.3d 1130, 1136-37 (Fed. Cir. 1995) (“We presume ‘that Congress is

knowledgeable about existing law pertinent to legislation it enacts.’” (quoting VE

Holding, 917 F.2d at 1581)); Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85

(1988) (“We generally presume that Congress is knowledgeable about existing law

pertinent to the legislation it enacts.”); Minneapolis & St. Louis Ry. Co. v. United States,

361 U.S. 173, 187 (1959) (presuming that Congress was aware of applicable railroad

regulations when enacting pertinent legislation).

       In Precision I and Precision II, the Court of International Trade determined that

Congress modeled 19 U.S.C. § 1625(c) after former 19 C.F.R. § 177.10. Precision I,

116 F. Supp. 2d at 1375; Precision II, 182 F. Supp. 2d at 1323-28. The court noted, in

particular, the similarities between former 19 C.F.R. § 177.10(c) and 19 U.S.C.

§ 1625(c). Precision I, 116 F. Supp. 2d at 1375. Former section 177.10(c)(2) provided:

              Before the publication of a ruling which has the effect of
              changing a position of the Customs Service and which
              results in a restriction or prohibition, notice that the position
              (or prior ruling on which the position is based) is under
              review will be published in the FEDERAL REGISTER and
              interested parties given an opportunity to make written
              submissions with respect to the correctness of the
              contemplated change. This procedure will also be followed



05-1087                                      23
               when the change of position will result in a holding that an
               activity is not restricted or prohibited and the Headquarters
               Office determines that the matter is of sufficient importance
               to involve the interests of the general public.

19 C.F.R. § 177.10(c)(2) (1993) (amended 2002). Similar to 19 U.S.C. § 1625(c), which

requires notice and comment proceedings before Customs can change a “treatment,”

former 19 C.F.R. § 177.10(c)(2) required Customs to follow notice and comment

procedures before changing its “position.” Precision I, 116 F. Supp. 2d at 1375.

       Former 19 C.F.R. § 177.9(e)(1), in turn, clarifies the scope of “substantially

identical transactions” that form the basis of a “treatment” for purposes of section

1625(c).14 Former section 177.9(e)(1) provided:

               The Customs Service will from time to time issue a ruling
               letter covering a transaction or issue not previously the
               subject of a ruling letter and which has the effect of
               modifying the treatment previously accorded by the Customs
               Service to substantially identical transactions of either the
               recipient of the ruling letter or other parties. . . .

19 C.F.R. § 177.9(e)(1) (1993) (repealed 2002).         Subsection (e)(1) refers to the

“treatment previously accorded by the Customs Service to substantially identical

transactions of either the recipient of the ruling letter or other parties.” Thus, when

enacting § 1625(c), Congress relied on a definition of “treatment” that encompassed

actions towards “other parties.” Further, we think that if Congress had intended the

restrictive approach to “substantially identical transactions” embodied in 19 C.F.R.

§ 177.12(c)(1)(iii)(A), it would have made that intention clear with express language in

the statute.




       14
            The parties are in accord that 19 C.F.R. § 177.9(e) was the basis for 19
U.S.C. § 1625(c).


05-1087                                     24
       The government argues that in 19 C.F.R. § 177.9(e)(1), “the words ‘other parties’

clearly relate only to parties who had transactions that received the treatment in

question and not to parties who did not have transactions that received treatment.” We

do not see such “clear” indication in the former regulation.         The government also

attempts to discount the language of section 177.9(e) by arguing that “had Congress

intended to include the language ‘or other parties’ from the text of section 177.9(e) in

the text of section 1625(c)(2), in order to broaden the scope of the statute to include

parties who had not received a ‘treatment,’ then it could have done so; it did not.”

However, the regulations in effect in 1993 refer to “substantially identical transactions”

of “other parties.” Thus, when Congress wrote section 1625(c), it knew that under

Customs regulations, “treatment” included “substantially identical transactions” of “other

parties,” making it unnecessary for it to specify that it was referring to “substantially

identical transactions” of a single party or multiple parties.

       This construction of “substantially identical transactions” is further supported by

the legislative history of 19 U.S.C. § 1625(c), which demonstrates Congress’ intent to

increase the transparency of Customs’ actions.15 If “substantially identical transactions”



       15
             The only legislative history pertinent to 19 U.S.C. § 1625 reveals
Congress’ intent to increase the transparency of Customs’ actions. It provides:

                     Section 623 of H.R. 3450 amends 19 U.S.C. 1625 by
              requiring that interpretative rulings, ruling letters or internal
              advice memorandum [sic] be published within 90 days in the
              Customs Bulletin or otherwise be made available for public
              inspection.    Section 623 further provides that adverse
              interpretative rulings may be appealed within Customs, and
              require that a ruling modifying or revoking an existing ruling
              be first published in the Customs Bulletin for notice and
              comment. The Secretary of the Treasury will give interested
              parties an opportunity to submit comments and will strictly


05-1087                                       25
were limited to only the transactions of one particular person, as the government

argues, a “treatment” with respect to that person would have no effect on other parties.

In other words, under Customs’ interpretation, a particular company would have no

interest in other parties’ transactions, rendering the increase in transparency of

Customs’ interactions with other companies served by section 1625(c) meaningless.

        Our construction of “substantially identical transactions” giving rise to a section

1625 “treatment” does not conflict with either 19 U.S.C. §1313(l) or 19 U.S.C.

§ 1502(b). Both 19 U.S.C. § 1313(l) and 19 U.S.C. § 1502(b) give the Secretary of the

Treasury the authority to promulgate regulations relating to drawback. Section 1313(l)

makes “the privileges provided for in this section . . . subject to compliance with such

rules and regulations as the Secretary of the Treasury shall prescribe . . . .”        The


(Cont’d. . . .)
                  enforce the 30-day comment period in order to avoid unduly
                  delaying the process, absent extraordinary circumstances.
                  Also, section 623 states that Customs make available all
                  information necessary for importers to comply with
                  applicable laws and regulations.
                         Section 623 requires that a decision that limits the
                  application of a court decision shall also be published for
                  notice and comment in the Customs Bulletin.

                  Reasons for change

                          Section 623 will provide assurances of transparency
                  concerning Customs rulings and policy directives through
                  publication in the Customs Bulletin or other easily accessible
                  source.
                          It is the Committee’s intent that the Customs Service
                  shall be deemed to have satisfied any publication
                  requirements mandated by this section if it disseminates
                  such information by the U.S. Customs Service electronic
                  bulletin board and such information remains publicly
                  available in an accessible, retrievable format.

H.R. Rep. No. 103-361(I), at 123-24 (1993), reprinted in 1993 U.S.C.C.A.N. 2552.


05-1087                                        26
Secretary’s regulations are made binding on Customs officers through 19 U.S.C.

§ 1502(b), which mandates:

             It shall be the duty of all officers of the customs to execute
             and carry into effect all instructions of the Secretary of the
             Treasury relative to the execution of the revenue laws; and
             in case any difficulty arises as to the true construction or
             meaning of any part of the revenue laws, the decision of the
             Secretary shall be binding upon all officers of the customs.

19 U.S.C. § 1502(b). The government argues that the interpretation of “substantially

identical transactions” in section 1625(c) adopted by the Court of International Trade

conflicts with the Secretary’s power to promulgate binding regulations. Under such an

interpretation, the government states, the Secretary will be forced to follow “treatments”

established by what it terms “aberrant decisions” of Customs officers. We do not agree.

Section 1625(c), like 19 U.S.C. § 1313(l) and 19 U.S.C. § 1502(b), is a binding

Congressional mandate that limits the Secretary’s authority to make decisions when

Customs officers have decided “substantially identical transactions” in a consistent

manner so that a “treatment” arises.      Contrary to the government’s argument, the

interpretation of “substantially identical transactions” that we think is correct does not

limit the Secretary’s authority to change a prior “treatment.” It simply requires that the

Secretary utilize notice and comment procedures under 19 U.S.C. § 1625(c) before

doing so.

      Based on the foregoing, we conclude that Congress clearly intended that

“substantially identical transactions” in 19 U.S.C. § 1625(c) include transactions of

parties other than the person claiming entitlement to the statute’s notice and comment

process. Under Chevron, this finding ends the matter because we must give effect to

this clear intent of Congress. Chevron, 467 U.S. at 843; Whitman v. Am. Trucking



05-1087                                    27
Ass’ns, 531 U.S. 457, 471 (2001).        Because the regulation set forth at 19 C.F.R.

§ 177.12(c)(1)(iii)(A) is due no Chevron deference due to Congress’ unambiguously

expressed intent, it is unnecessary for us to reach the issue of whether the regulation is

impermissibly retroactive as found by the Court of International Trade.16       See Cal.

Indus. Prods., 350 F. Supp. 2d at 1141-42 (finding that no Chevron deference was due

because 19 C.F.R. § 177.12(c)(1)(iii)(A) was impermissibly retroactive). In sum, we

agree with the Court of International Trade that because Customs failed to comply with

section 1625(c) before it denied CIP’s drawback claims, it is, in CIP’s case, bound by

and subject to its earlier treatment of steel scrap as eligible for drawback.

                                             IV.

       We turn now to the government’s final argument. As noted, the government

contends that steel scrap is waste and that HQ 227375, in which Customs held that

steel scrap is waste, should be given Skidmore deference.                Under Skidmore,

administrative rulings or decisions that are not entitled to Chevron deference may still

be “eligible to claim respect according to [their] persuasiveness.” United States v. Mead

Corp., 533 U.S. 218, 221 (2001). We need not address the government’s Skidmore

argument, however. The reason is that any argument in support of Customs’ rejection

of CIP’s drawback claims is foreclosed by our holding in Part III. Because, contrary to

19 U.S.C. § 1625(c), Customs failed to engage in a notice and comment process before

rejecting CIP’s drawback claims, it is bound by and subject to, at least in this case, its

earlier treatment of steel scrap as eligible for drawback. No argument seeking to undo



       16
              This court has reached a different conclusion with regard to a different
portion of the regulation as applied to a different issue under 19 U.S.C. § 1625(c). See
Motorola, Inc. v. United States, Nos. 05-1025, 1041, decided today.


05-1087                                      28
that state of affairs—and that includes the government’s Skidmore argument—can be

heard.

                                    CONCLUSION

         For the foregoing reasons, the decision of the Court of International Trade

granting summary judgment in favor of CIP is

                                     AFFIRMED.




05-1087                                   29
