AMERICAN FIBER & FINISHING, 

INC.,

Plaintiff,

v. 

UNITED STATES, 

Defendant.

Slip Op. 15 - 

UNITED STATES COURT OF INTERNATIONAL TRADE 

OPINION and ORDER 

[Defendant’s motion for partial summary judgment denied; 

Plaintiff’s cross-motion for partial summary judgment granted in 

part and denied in part] 

Dated: October 21, 2015 

Arthur K. Purcell, Sandler, Travis & Rosenberg, P.A., 

of New York, NY, for the Plaintiff. 

Jason M. Kenner, Trial Attorney, Commercial Litigation 

Branch, Civil Division, U.S. Department of Justice, of New York, 

NY, for the Defendant. Also on the brief were Joyce R. Branda, 

Acting Assistant Attorney General, Jeanne E. Davidson, Director, 

and Amy M. Rubin, Assistant Director. Of counsel was Beth 

Brotman, Office of Assistant Chief Counsel, International Trade 

Litigation, U.S. Customs and Border Protection, of New York, NY.

Pogue, Senior Judge: In this action, Plaintiff, 

American Fiber & Finishing, Inc. (“AFF”), challenges the denial 

of its protests made pursuant to § 514 of the Tariff Act of 

Before: Donald C. Pogue, 

Senior Judge 

Court No. 12-00138 
Court No. 12-00138 Page 2 

1930, as amended, 19 U.S.C. § 1514 (2012),1 and 19 C.F.R. 

§ 174.11 (2012), by the Bureau of Customs and Border Protection 

(“CBP” or “Customs”). In those protests, and now before the 

court, Plaintiff claims that Customs incorrectly assessed the 

rate and amount of duties chargeable in liquidating2 sixteen of 

Plaintiff’s imports of cotton gauze fabric. Summons, ECF No. 1, 

at Form 1-3 (listing the sixteen entries); 2d Am. Compl., ECF 

No. 11-1, at ¶ 1. Plaintiff asserts that Customs violated 

19 U.S.C. § 1625(c)(2) by making an interpretive ruling or 

decision modifying or revoking a previously accorded treatment 

of AFF’s goods, reclassifying and rate-advancing them, without 

the statutorily required notice and comment. 2d Am. Compl., ECF 

No. 11-1, at ¶¶ 17-32. The court has jurisdiction over 

Plaintiff’s claim pursuant to 28 U.S.C. § 1581(a).3

Defendant and Plaintiff now cross-move for partial 



1 All further citations to the Tariff Act of 1930, as amended, 

are to Title 19 of the U.S. Code, 2012 edition, unless otherwise 

noted.

2 Liquidation is “the final computation or ascertainment of 

duties on entries for consumption or drawback entries.” 19 

C.F.R. § 159.1. 

3 28 U.S.C. § 1581(a) provides that this Court “shall have 

exclusive jurisdiction of any civil action commenced to contest 

the denial of a protest, in whole or in part, under [19 U.S.C. § 

1515].”
Court No. 12-00138 Page 3 

summary judgment.4 Because Plaintiff has alleged an appropriate 

interpretive ruling or decision within the meaning of 19 U.S.C. 

§ 1625(c) and claim of treatment, as discussed below, 

Defendant’s motion is denied, while Plaintiff’s cross-motion is 

granted in part and denied in part.

BACKGROUND

Plaintiff claims that it has, for some time, imported 

cotton gauze fabric under subheading 5803.00.10, Harmonized 

Tariff Schedule of the United States (“HTSUS”), a duty free 

provision.5 2d Am. Compl., ECF No. 11-1, at ¶¶ 9-13. Among these 

importations was an entry made on July 11, 2009. Following 

laboratory testing,6 on January 14, 2010, Customs issued a CF-29 

notice of action7 to Plaintiff indicating that this entry and all 



4 Def.’s Partial Mot. for Summ. J. or, in the Alt., for a 

Determination of the Date of Pl.’s Claim of Treatment, ECF No. 

36 (“Def.’s Mot.”); Pl.’s Partial Cross-Mot. for Summ. J., ECF 

No. 39 (“Pl.’s Mot.”).

5 5803.00.10, HTSUS, covers “Gauze, other than narrow fabrics of 

heading 5806: Of cotton.” 

6 See Laboratory Report, reproduced in Pl.’s Br. in Supp. of 

Partial Cross-Mot. for Summ. J. & in Opp’n to Def.’s Mot. for 

Summ. J., ECF No. 39-1 (“Pl.’s Br.”) at Ex. B. 

7 A CF-29 notice of action is issued pursuant to 19 C.F.R. 

§ 152.2 (providing that “[i]f the port director believes that 

the entered rate or value of any merchandise is too low, or if 

he finds that the quantity imported exceeds the entered 

quantity, and the estimated aggregate of the increase in duties 

on that entry exceeds $15, he shall promptly notify the importer 

(footnote continued) 
Court No. 12-00138 Page 4 

such entries “scheduled to liquidate” should be reclassified 

under subheading 5208.21.4090, HTSUS,8 at a duty rate of 10.2 

percent ad valorem. Notice of Action (Jan. 14, 2010), reproduced 

in Pl.’s Br., ECF No. 39-1 at Ex. A (“Jan. 2010 Notice of 

Action”); 2d Am. Compl., ECF No. 11-1, at ¶ 14.9 Subsequently, 

in September through November 2010, Customs issued a series of 

similar notices of action reclassifying and rate advancing a 

number of Plaintiff’s entries that had been made between 

September 2009 and April 2010.10



on Customs Form 29, specifying the nature of the difference on 

the notice”). 

8 5208.21.4090, HTSUS, covers “Woven fabrics of cotton, 

containing 85 percent or more by weight of cotton, weighing not 

more than 200 g/m2: Bleached: Plain weave, weighing not more than 

100 g/m2: Of Numbers 43 to 68: Cheesecloth.” 

9 Customs instructed Plaintiff to “provide to CBP a list of 

entries scheduled to liquidate under the 314 day liquidation 

cycle that were not entered as referenced above. Submit 

voluntary tenders where applicable.” Jan. 2010 Notice of Action, 

ECF No. 39-1 at Ex. A. 

10 See Notice of Action (Sept. 29, 2010), reproduced in Pl.’s 

Br., ECF No. 39-1 at Ex. C, at 5 (following laboratory testing, 

reclassifying and rate advancing eight of Plaintiff’s entries of 

“100 [percent] cotton leno weave gauze” from 5803.00.1000, 

HTSUS, duty-free to 5208.21.6090, HTSUS, 11.5 percent ad

valorem); Notice of Action (Sept. 29, 2010), reproduced in Pl.’s 

Br., ECF No. 39-1 at Ex. C, at 6 (following lab report, rate 

advancing three of Plaintiff’s entries of “100 [percent] cotton 

leno weave gauze roll” from 5803.00.1000, HTSUS, duty-free to 

5208.21.6090, HTSUS, 11.5 percent ad valorem); Notice of Action 

(Oct. 1, 2010), reproduced in Pl.’s Br., ECF No. 39-1 at Ex. C, 

at 2 (reclassifying and rate advancing Plaintiff’s entry of 

“leno weave gauze,” “as well as any previous/subsequent entries 

invoiced with this commodity,” as listed, to 5208.21.6090, 

(footnote continued) 
Court No. 12-00138 Page 5 

As instructed by these notices of action, from October 

2010 through January 2011, Plaintiff made sixteen entries of 

cotton gauze fabric under one of two HTSUS provisions — either 

subheading 5208.11.40, HTSUS,11 at a duty rate of 9 percent ad

valorem, or subheading 5208.21.40, HTSUS,12 at a duty rate of 

10.2 percent ad valorem – rather than the duty-free 5803, HTSUS 

provision Plaintiff had previously used. Summons, ECF No. 1, at 

Form 1-3; 2d Am. Compl., ECF No. 11-1, at ¶¶ 8-9. Customs then 

liquidated the merchandise as entered through “bypass” 

procedures.13 Decl. of Stephanie Allen, Senior Import Specialist, 



HTSUS, at a duty rate of 11.5 percent ad valorem); Notice of 

Action (Oct. 4, 2010), reproduced in Pl.’s Br., ECF No. 39-1 at 

Ex. C, at 1 (rate advancing Plaintiff’s entry, made on Sept. 4, 

2009, of “gauze in roll”); Notice of Action (Nov. 18, 2010), 

reproduced in Pl.’s Br., ECF No. 39-1 at Ex. C, at 7 (rate 

advancing one of Plaintiff’s entries of “gauze roll” to 

5208.21.6090, HTSUS, 11.5 percent ad valorem). Plaintiff 

protested the liquidation of some of these entries, had the 

protests denied, and then challenged those denials pursuant to 

19 U.S.C. § 1515. These denials are currently the subject of a 

related case on this Court’s Reserve Calendar. See Summons, Ct. 

No. 12-00139, ECF No. 1; Pl.’s Br., ECF No. 39-1, at 3 n.2. 

11 5208.11.40, HTSUS, covers “Woven fabrics of cotton, containing 

85 percent or more by weight of cotton, weighing not more than 

200 g/m2: Unbleached: Plain weave, weighing not more than 100 

g/m2: of Numbers 43 to 68.” 

12 5208.21.40, HTSUS, covers “Woven fabrics of cotton, containing 

85 percent or more by weight of cotton, weighing not more than 

200 g/m2: Bleached: Plain weave, weighing not more than 100 g/m2:

Of Numbers 43 to 68.” 

13 Under the bypass procedures “importers declare a value and 

tariff classification for their goods when they import them; 

Customs port directors may liquidate the goods as declared, 

(footnote continued) 
Court No. 12-00138 Page 6 

CBP, reproduced in Attach. to Def.’s Mem. in Supp. of its 

Partial Mot. for Summ. J. (“Attach. to Def.’s Br.”), ECF No. 36-

1 at Ex. 1 (“Allen Decl.”), at ¶ 3. On March 8 and 12, 2012, 

Plaintiff timely filed protests of these liquidations. 2d Am. 

Compl., ECF No. 11-1, at ¶ 15. Customs denied the protests. Id.

Plaintiff now contests Customs’ denials, id., at ¶ 5, claiming, 

as it did in its protests, that Customs violated 19 U.S.C. 

§ 1625(c) when it liquidated the sixteen entries, because 

Customs made an “interpretive ruling or decision” that modified 

or revoked a “treatment previously accorded” Plaintiff’s 

“substantially identical transactions” without the statutorily 

prescribed notice and comment. 19 U.S.C. § 1625(c)(2); 2d Am. 

Compl., ECF No. 11-1, at ¶¶ 17-32.14



without inspecting the goods or otherwise independently 

determining the proper duty to be paid.” Motorola, Inc. v. 

United States, 436 F.3d 1357, 1362 (Fed. Cir. 2006); see Customs 

Service: 19 C.F.R. Part 177, 67 Fed. Reg. 53,483, 53,491 (Dep’t 

Treasury Aug. 16, 2002) (“Customs must deal with a very large 

number of import transactions each year and must at the same 

time facilitate international trade. It is simply impossible 

for Customs to facilitate trade and at the same time review all 

import transactions. Accordingly, Customs has adopted 

procedures, such as selectivity and bypass, which are intended 

to strike a workable balance between these two competing goals.

As a result, the vast majority of import transactions do not 

receive Customs review.”). 

14 See Attach. to Protest 1512-12-100039 (Mar. 8, 2012) 

reproduced in Pl.’s Br., ECF No. 39-1 at Ex. D, at 1 (“Attach. 

to Protest”) (claiming that “the imported merchandise . . . is 

correctly classified in subheading 5803.00.1000, [HTSUS], for 

which the duty rate is Free, rather than in subheading 

(footnote continued) 
Court No. 12-00138 Page 7 

Currently before the court is Defendant’s motion for 

partial summary judgment, Def.’s Mot., ECF No. 36, and 

Plaintiff’s cross-motion for partial summary judgment, Pl.’s 

Mot., ECF No. 39. In their motions, Defendant and Plaintiff 

raise two issues: First, they argue whether Plaintiff’s claim 

fails as a matter of law because it cannot identify an 

“interpretive ruling or decision” through which Customs revoked 

or modified the alleged treatment, for the purposes of 19 U.S.C. 

§ 1625(c).15 Second, if Plaintiff’s claim does not fail as a 

matter of law, the parties seek a ruling on an issue of 

regulatory interpretation. Specifically, in order to establish 

the existence of a “treatment previously accorded” by Customs 

under 19 U.S.C. § 1625(c), Plaintiff must provide, inter alia,

evidence of that treatment “[o]ver a 2-year period immediately 

preceding the claim of treatment.” 19 C.F.R. § 

177.12(c)(1)(i)(C). The parties dispute the meaning of “claim 



5208.21.4090, HTSUS, the tariff provision under which the 

fabrics were liquidated,” and that “the fabrics are classifiable 

in Heading 5803 due to an established treatment of 

classification of [AFF’s] merchandise . . . under 19 U.S.C. § 

1625”).

15 Def.’s Mem. in Supp. of its Partial Mot. for Summ. J., ECF No. 

36 (“Def.’s Br.”), at 4-6; Mem. in Opp’n to [Pl.’s Mot.], ECF 

No. 47 (“Def.’s Resp.”), at 4-12; Pl.’s Br., ECF No. 39-1, at 6-

12; Pl.’s Reply to [Def.’s Resp.], ECF No. 50 (“Pl.’s Reply”), 

at 2-9. 
Court No. 12-00138 Page 8 

of treatment” to determine the relevant 2-year evidentiary 

period.16

STANDARD OF REVIEW 

Because the court has jurisdiction over this action 

pursuant to 28 U.S.C. § 1581(a), questions of both fact and law 

presented here are reviewed de novo. 28 U.S.C. § 2640(a)(1).17

The court will grant summary judgment when “there is 

no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” USCIT Rule 56(a). A 

dispute is genuine if “the evidence is such that a reasonable 

jury could return a verdict for the nonmoving party”; a fact is 

material when it “might affect the outcome of the suit under the 

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986). “[T]he plain language of [the rule] mandates the 

entry of summary judgment, after adequate time for discovery and 

upon motion, against a party who fails to make a showing 



16 Def.’s Br., ECF No. 36, at 7-9; Def.’s Resp., ECF No. 47, at 

12-17; Pl.’s Br., ECF No. 39-1, at 12-21; Pl.’s Reply, ECF No. 

50, ECF No. 50, at 9-14. 

17 Under 28 U.S.C. § 2640(a)(1), the court “make[s] its 

determination[] upon the basis of the record made before the 

court,” in “[c]ivil actions contesting the denial of a protest 

under [19 U.S.C. § 1515]. See also Park B. Smith, Ltd. v. United 

States, 347 F.3d 922, 924 (Fed. Cir. 2003) (“The Court of 

International Trade is required to decide, on a de novo basis, 

civil actions that contest the denial of a protest to a Customs 

classification ruling.”). 
Court No. 12-00138 Page 9 

sufficient to establish the existence of an element essential to 

that party’s case, and on which that party will bear the burden 

of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 

(1986). Where, as here, parties cross-move for summary 

judgment, “each party carries the burden on its own motion to 

show entitlement to judgment as a matter of law after 

demonstrating the absence of any genuine disputes over material 

facts.” Massey v. Del Labs., Inc., 118 F.3d 1568, 1573 (Fed. 

Cir. 1997). 

DISCUSSION

I. Whether Plaintiff can identify an “interpretive ruling or 

decision” for the purposes of 19 U.S.C. § 1625(c) 

Under 19 U.S.C. § 1625(c)(2), Customs must follow 

notice and comment procedures before it issues an “interpretive 

ruling or decision which would . . . have the effect of 

modifying [a] treatment previously accorded by [Customs] to 

substantially identical transactions.”18 Defendant argues that 

Plaintiff’s claim fails as a matter of law because Plaintiff has 



18 See Sea-Land Serv., Inc. v. United States, 239 F.3d 1366, 1372 

(Fed. Cir. 2001) (“Section 1625(c) mandates that Customs provide 

notice and comment under specific circumstances. First, 1625(c) 

only applies to a proposed interpretive ruling or decision by 

Customs. Second, the proposed interpretive ruling or decision 

must either modify or revoke a prior ruling or decision or have 

the effect of modifying Customs[’] previous treatment of 

substantially identical transactions.”) (citations omitted). 
Court No. 12-00138 Page 10 

not identified “a proposed interpretive ruling or decision” 

within the meaning of 19 U.S.C. § 1625(c). Def.’s Br., ECF No. 

36, at 4-6; Def.’s Resp., ECF No. 47, at 4-12. Plaintiff 

counters, arguing that Customs’ January 2010 Notice of Action, 

see Jan. 2010 Notice of Action, ECF No. 39-1 at Ex. A, may 

constitute an “interpretive ruling or decision” within the 

meaning of 19 U.S.C. § 1625(c). Pl.’s Br., ECF No. 39-1, at 

6-12; Pl.’s Reply, ECF No. 50, at 2-9; see also 2d Am. Compl., 

ECF No. 11-1, at ¶ 14. Plaintiff also cross-moves for an 

affirmative finding that the January 2010 notice of action is an 

interpretive ruling or decision within the meaning of 19 U.S.C. 

§ 1625(c). Pl.’s Mot., ECF No. 39; Pl.’s Br., ECF No. 39-1, at 

7-9; Pl.’s Reply, ECF No. 50, at 5. 

While 19 U.S.C. § 1625 does not define an 

“interpretive ruling or decision”, it does provide examples.19

An interpretive ruling “include[s] any ruling letter, or 

internal advice memorandum,” 19 U.S.C. § 1625(a), and a 

“decision” may be, but is not limited to, a protest review 

decision.20 Whether a determination falls within the ambit of 



19 See Int'l Custom Prods., Inc. v. United States, 748 F.3d 1182, 

1188 (Fed. Cir. 2014) (describing the statutory language as 

“exemplary, not exhaustive”). 

20 California Indus. Prods., Inc. v. United States, 436 F.3d 

1341, 1351 (Fed. Cir. 2006) (“In short, ‘decision’ in the phrase 

‘ruling or decision’ in 19 U.S.C. § 1625(c), includes a ‘protest 

(footnote continued) 
Court No. 12-00138 Page 11 

19 U.S.C. § 1625(c) depends on its substance, not its form. 

Int’l Custom Products, 748 F.3d at 1187-88. If a determination 

is the result of considered deliberations,21 if it “interprets 

and applies the provisions of the Customs and related laws to a 

specific set of facts,”22 if it has the effect of “unilaterally 

chang[ing] the rules” upon which importers have come to rely,23

if it is otherwise “the functional equivalent of interpretive 

rulings or decisions,”24 then it may be an interpretive ruling or 

decision and thereby may trigger 19 U.S.C. § 1625 notice and 



review decision.’”); Kahrs Int’l, Inc. v. United States, 33 CIT 

1316, 1353, 645 F. Supp. 2d 1251, 1285 (2009) (“Thus, based on 

Congress’ use of the word ‘includes’ in the statutory language 

of § 1625(c), a ‘protest review decision’ is to be included 

among the larger category of otherwise generic Customs’ 

‘decision[s].’”) (alteration in original). 

21 See Int’l Custom Prods., 748 F.3d at 1188. 

22 19 C.F.R. § 177.1(d)(1)(Customs’ regulation providing the 

definition of a “ruling,” promulgated pursuant to Commerce’s 

authority under 19 U.S.C. § 1624). 

23 S. Rep. No. 103–189, at 64 (1993) (discussing the purpose of 

19 U.S.C. § 1625); see also H.R. Rep. No. 103–361(I), at 124 

(1993), reprinted in 1993 U.S.C.C.A.N. 2552, 2674 (indicating 

that 19 U.S.C. § 1625 was meant to “provide assurances of 

transparency concerning Customs rulings and policy directives”).

24 Kahrs Int’l, 33 CIT at 1353, 645 F. Supp. 2d at 1285 

(“Accordingly, this Court finds for purposes of deciding this 

case, the text of [19 U.S.C.] § 1625 covers interpretive 

rulings, ruling letters, internal advice memoranda, protest 

review decisions, or decisions that are the functional 

equivalent of interpretive rulings or decisions.”).
Court No. 12-00138 Page 12 

comment requirements.25 Therefore, as the Federal Circuit has 

recently held, a notice of action may be an interpretive ruling 

or decision within the meaning of 19 U.S.C. § 1625(c), depending 

on the substance of the determination contained therein. Int’l 

Custom Products, 748 F.3d at 1188 (“The [Court of International 

Trade] did not err in holding that the Notice of Action in this 

case amounts to an interpretive ruling or decision subject to 

§ 1625(c)’s notice and comment procedures.”).

Accordingly, because a notice of action may be an 

interpretive ruling or decision, by offering the January 2010 

notice of action as a possible interpretive ruling or decision, 

Plaintiff has “establish[ed] a genuine issue of material fact” 

through evidence, a document, in the record, sufficient to 

survive summary judgment on this issue. See USCIT Rule 

56(c)(1)(A) (“A party asserting that a fact . . . is genuinely 

disputed must support the assertion by . . . citing to 

particular parts of materials in the record, including . . . 

documents[.]”).26 However, Plaintiff has not offered evidence 



25 See Int’l Custom Prods., 748 F.3d at 1185-89 (considering the 

contents and effect of a notice of action, as well as its 

deliberative nature and plaintiff’s reliance on the previous 

ruling, to determine whether it was an interpretive ruling 

within the meaning of 19 U.S.C. § 1625(c)). 

26 See also Long Island Sav. Bank, FSB v. United States, 503 F.3d 

1234, 1244 (Fed. Cir. 2007) (citing Anderson v. Liberty Lobby, 

Inc., 477 U.S. at 248); Netscape Commc’ns Corp. v. Konrad, 295 

(footnote continued) 
Court No. 12-00138 Page 13 

sufficient to establish that this notice of action is, 

substantively, an interpretive ruling or decision, as Plaintiff 

has yet to prove that the notice of action was the result of 

considered deliberation and effectively revoked a treatment.27

Accordingly, there still remains a genuine dispute of 

material fact, such that both motions, on this issue, must be 

denied. See Marriott Int’l Resorts, 586 F.3d at 969 (“To the 

extent there is a genuine issue of material fact, both motions 

must be denied.”) (citation omitted).28



F.3d 1315, 1319 (Fed. Cir. 2002) (“When ruling on a motion for 

summary judgment, all of the nonmovant’s evidence is to be 

credited, and all justifiable inferences are to be drawn in the 

nonmovant’s favor.”) (citation omitted). 

27 Plaintiff argues that “the 2010 Notice of Action meets all the 

core requirements . . . necessary to constitute a communication 

subject to notice and comment under [19 U.S.C. § 1625(c)],” 

because “[i]t identifies the product, expresses disagreement 

with the importer’s classification, and directs under pain of 

penalty that future imports be classified differently than had 

been the case prior.” Pl.’s Resp., ECF No. 50, at 5; see also 

Pl.’s Br., ECF No. 39-1, at 7-9. However, this only suggests 

that the notice of action “interprets and applies the provisions 

of the Customs and related laws to a specific set of facts,” 

19 C.F.R. § 177.1(d)(1). It does not establish that the notice 

of action was the result of considered deliberation and 

effectively revoked a treatment. Cf. Int’l Custom Prods., 748 

F.3d. at 1188-89 (finding that a notice of action was the result 

of “considered deliberations” after Plaintiff provided evidence 

of a “months-long deliberative process” by Custom’s Office of 

Regulations and Rulings (which is responsible for reviewing and 

issuing ruling letters) and “effectively revoked” a previous 

ruling letter made by that same office).

28 Plaintiff also argues that Customs’ liquidation of the entries 

at issue here may be considered an interpretive ruling or 

decision because, while the merchandise was liquidated as 

(footnote continued) 
Court No. 12-00138 Page 14 

II. Plaintiff’s “claim of treatment” 

While 19 U.S.C. § 1625 leaves the term “treatment” 

ambiguous,29 Customs has provided30 a reasonable and permissible 

construction in 19 C.F.R. § 177.12(c), where it defines what is 

necessary to prove a “treatment [was] previously accorded [by 

Customs] to substantially identical transactions.” Motorola, 436 

F.3d at 1365-66. In order to establish a previously accorded 

treatment, a party must show, inter alia, that “there was an 

actual determination by a Customs officer regarding the facts 



entered, the liquidation “subsumed and put into effect the 

agency’s prior tariff change decision, namely the January 2010 

Notice of Action.” Pl.’s Br., ECF No 39-1, at 11-12. However, 

the entries at issue here were liquidated as entered, through 

bypass procedures, “meaning that they were designated as entries 

that could be liquidated without scrutiny by Customs officials.” 

Ellen Decl., ECF No. 36-1 at Ex. 1, at ¶ 3. They “were 

processed without any review or examination by the commodity 

team charged with classifying the merchandise.” Id. “[T]he mere 

liquidation of merchandise at the declared bypass rate” is not 

an “interpretive ruling or decision” under 19 U.S.C. § 1625(c). 

Kahrs Int’l, 33 CIT at 1353, 645 F. Supp. 2d at 1285-86 (quoting 

California Indus. Prods., 436 F.3d at 1351 (“Section 1625(c) 

only applies when Customs issues an ‘interpretive ruling or 

decision.’”)).

29 Motorola, 436 F.3d at 1365 (holding that the term “treatment” 

is ambiguous in 19 U.S.C. § 1625(c)(2) because “[t]he question 

of what degree of [agency] action (as opposed to acquiescence) 

is sufficient to [create a treatment]” is left open). 

30 See 19 U.S.C. § 1624 (Customs is “authorized to make such 

rules and regulations as may be necessary to carry out the 

provisions of [Chapter 19].”); Customs Service: 19 CFR Part 177, 

67 Fed. Reg. at 53,484 (providing that 19 C.F.R. § 177.12 was 

promulgated, pursuant to notice and comment rulemaking, to 

implement “the terms of 19 U.S.C. § 1625(c) through appropriate 

regulatory standards”). 
Court No. 12-00138 Page 15 

and issues involved in the claimed treatment,” and that “[o]ver 

a 2-year period immediately preceding the claim of treatment, 

Customs consistently applied that determination [. . .].” 

19 C.F.R. §§ 177.12(c)(1)(i)(A), (C). Plaintiff and Defendant 

seek a ruling31 on the meaning of “claim of treatment,” in order 

to establish when the “2-year period immediately preceding claim 

of treatment” occurred, to provide a framework for the 

“remaining discovery in this case.” See Def.’s Br., ECF No. 36, 

at 7-8. 

Defendant argues that, based on the dictionary 

definition of the word “claim,” the phrase “claim of treatment” 

means a written application or mechanism through which Plaintiff 

“first asked or called for a finding that [a] treatment 

existed,” and dated to the time of filing. Def.’s Br., ECF No. 

36, at 8. According to the Defendant, Plaintiff’s claim of 

treatment was its March 8, 2012 protest, making the relevant 

“two year [evidentiary] ‘look back’ period . . . approximately 

March 8, 2010 — March 8, 2012.” Id. at 8. Plaintiff argues that 

“claim of treatment” is not defined in regulation or statute, 



31 Because this presents solely an issue of regulatory 

interpretation – the facts on this narrow issue are undisputed, 

Def.’s Br., ECF No. 36, at 7; Pl.’s Br., ECF No. 39-1, at 13-14 

– pursuant to USCIT Rule 56(a), it is a question ripe for 

summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 

at 247–48; see also Puerto Rico Towing & Barge Co. v. United 

States, 33 CIT 1131, 1133, 637 F. Supp. 2d 1266, 1267 (2009). 
Court No. 12-00138 Page 16 

Pl.’s Reply, ECF No. 50, at 12, such that a “claim of treatment” 

should be considered the statement, made in whatever filing 

procedurally was available, and dated according to the facts 

contained therein, Pl.’s Br., ECF No. 39-1, at 15-16. According 

to the Plaintiff, its claim of treatment was properly made in 

its March 8, 2012 protest, but the effective date of its claim 

is “the date of the earliest entry [at issue],” Pl.’s Mot., ECF 

No. 39, at 1, making the two-year “look-back” period 

approximately October 2008 through October 2010. Pl.’s Br., ECF 

No. 39-1, at 15-16; see Summons, ECF No. 1 (dating earliest 

entry at issue here to October 24, 2010). 

A. Defining a “claim of treatment” 

“When construing a regulation,” the “same 

interpretative rules” apply as when “analyzing the language of a 

statute.” Mass. Mut. Life Ins. Co. v. United States, 782 F.3d 

1354, 1365 (Fed. Cir. 2015) (citation omitted). This means 

that, under the de novo standard of review applicable here, our 

analysis begins with “the regulatory language itself,” Roberto 

v. Dep’t of Navy, 440 F.3d 1341, 1350 (Fed. Cir. 2006) (citation 

omitted), to ascertain its “plain meaning,” Lengerich v. Dep’t 

of Interior, 454 F.3d 1367, 1370 (Fed. Cir. 2006) (citations 
Court No. 12-00138 Page 17 

omitted).32 Because meaning is a function of context, “[i]n 

interpreting a regulatory provision, we examine the text of the 



32 While, under Auer v. Robbins, the court will defer to an 

agency’s interpretation of its own ambiguous regulation, such 

deference is unwarranted where the interpretation is “plainly 

erroneous,” “inconsistent with the regulation” itself, or “does 

not reflect the agency’s fair and considered judgment on the 

matter in question.” 519 U.S. 452, 461-462 (1997) (internal 

quotation marks and citations omitted). 

Although Defendant advances an interpretation of 19 C.F.R. 

§ 177.12(c)(1)(i)(C), see Def.’s Br., ECF No. 36, at 7-9; Def.’s 

Resp., ECF No. 47, at 12-17, deference is unwarranted here 

because the interpretation appears to be “nothing more than a 

convenient litigating position, or a post hoc rationalization

advanced” by counsel in order “to defend past agency action 

against attack.” See Christopher v. SmithKline Beecham Corp., 

132 S. Ct. 2156, 2166-67 (2012) (internal citations, quotation 

marks, and alteration marks omitted). “To merit deference” an 

agency’s interpretation “must have been actually applied in the 

present agency action.” Lengerich, 454 F.3d at 1372. It was not 

so applied here. Rather, the interpretation appears in 

Defendant’s briefings alone, without any reference to any 

decision or interpretation made by Customs at the administrative 

level, whether in this case or otherwise. See Def.’s Br., ECF 

No. 36, at 7-9; Def.’s Resp., ECF No. 47, at 12-17. This is 

likely because there was no agency interpretation or application 

of the regulation at the administrative level. See Protest 1512-

12-100039 (Mar. 8, 2012) reproduced in Pl.’s Br., ECF No. 39-1 

at Ex. D (denying protest in accordance with the disposition 

Protest, 1512-10-100149, without discussion of Plaintiff’s 

19 U.S.C. § 1625(c) claim); see HQ H158256 (Nov. 16, 2011), 

available at 2011 WL 8200988 (deciding Protest 1512-10-100149 

without discussion of 19 U.S.C. § 1625(c) or 19 C.F.R. 

§ 177.12). Moreover, outside of this action, Customs’ 

understanding of the “2–year period immediately preceding the 

claim of treatment,” 19 C.F.R. § 177.12(c)(1)(i)(C), has been 

inconsistent, being variously defined as “the two year period 

immediately preceding the [entry of the] merchandise subject to 

the claim of treatment,” HQ H076723 (Nov. 24, 2010), available 

at 2010 WL 5810910 at *11, the “two years prior to the date of 

the last liquidated entry subject to the claim,” HQ 966756 (Aug. 

19, 2004), available at 2004 WL 2904423, at *4 (also asserting 

that this requirement is “codified at 19 C.F.R. § 177.12”), and 

(footnote continued) 
Court No. 12-00138 Page 18 

regulation as a whole, reconciling the section in question with 

sections related to it,” id., including “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)). “The plain meaning 

that we seek to discern is the plain meaning of the whole 

[regulation], not of isolated sentences.” Beecham v. United 

States, 511 U.S. 368, 372 (1994) (citations omitted).33



the two years prior to the filing date of the document the claim 

comes in, see, e.g., HQ H025849 (Nov. 17, 2010), available at 

2010 WL 5810900 (in context of a protest determination, finding 

that the claim of treatment was made in protestant’s initial 

request for internal advice pursuant to 19 C.F.R. § 177.11 and 

the two years prior to that request were the relevant 

evidentiary period). It follows that, because there is no 

indication that Defendant’s interpretation represents “the 

agency’s considered position and not merely the views of 

litigating counsel,” it is afforded no deference under Auer. See 

Mass. Mut. Life Ins., 782 F.3d at 1370 (quoting Abbott Labs. v. 

United States, 573 F.3d 1327, 1333 (Fed. Cir. 2009)).

Further, this lack of deference is in better keeping with 

the plain language of the applicable, statutorily prescribed 

standard of review, as “civil actions [that] contest[] the 

denial of a protest” are reviewed “upon the basis of the record 

made before the court,” 28 U.S.C. § 2640(a)(1), that is “de

novo,” Park B. Smith, 347 F.3d at 924. Cf. Perez v. Mortgage 

Bankers Ass’n, 135 S. Ct. 1199, 1211-13 (2015) (Scalia, J., 

concurring) (arguing that Auer deference is in direct conflict 

with the standards of review provided in the Administrative 

Procedure Act at 5 U.S.C. § 706).

33 See King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) 

(“[T]he cardinal rule that a [regulation] is to be read as a 

whole, since the meaning of [regulatory] language, plain or not, 

depends on context.”) (citation omitted). 
Court No. 12-00138 Page 19 

19 C.F.R. § 177.12 does not provide a definition for 

the phrase “claim of treatment,” or even of the term “claim.”

Where a term or phrase is not expressly defined in a regulation, 

it is presumed to have its ordinary meaning.34 For the ordinary 

meaning, we look to the dictionary.35 At the time the 19 C.F.R. § 

177.12 was adopted, “claim” was variously defined as: “[t]he 

aggregate of operative facts giving rise to a right enforceable 

by a court”; “[t]he assertion of an existing right; any right to 

payment or an equitable remedy, even if contingent or 

provisional”; “[a] demand for money or property to which one 

asserts a right”; and “[a]n interest or remedy recognized at 

law; the means by which a person can obtain a privilege, 



34 See Mass. Mut. Life Ins., 782 F.3d at 1365 (considering the 

“plain language of the regulation and . . . the terms in 

accordance with their common meaning”) (internal citations, 

quotation marks, and alteration marks omitted); Warner-Lambert, 

316 F.3d at 1355 (“When a [regulation] does not define a given 

word or phrase, we presume that [the agency] intended the word 

or phrase to have its ordinary meaning.”) (citing Asgrow Seed 

Co. v. Winterboer, 513 U.S. 179, 187 (1995)). 

35 Massachusetts Mut. Life Ins., 782 F.3d at 1367 (“When terms 

are undefined, the court may consider the definitions of those 

terms in order to determine their meaning.”) (citations 

omitted); Am. Express Co. v. United States, 262 F.3d 1376, 1381 

n.5 (Fed. Cir. 2001) (“It is appropriate to consult dictionaries 

to discern the ordinary meaning of a term not explicitly defined 

by statute or regulation.”). 
Court No. 12-00138 Page 20 

possession, or enjoyment of a right or thing; [cause of 

action].” BLACK’S LAW DICTIONARY 240 (7th ed. 1999).36

A “claim,” then, may be either the assertion that a 

right exists or the means through which that assertion is made.

Under the former meaning, Plaintiff’s “claim” is the assertion 

made within its March 8, 2012 protest that the entries at issue 

here were “classifiable [under the duty-free provision, 5803, 

HTSUS,] due to an established treatment,” absent appropriate 

notice and comment, pursuant to 19 U.S.C. § 1625(c). See Attach. 

to Protest, ECF No. 39-1 at Ex. D, at 1. Under the latter 

meaning, Plaintiff’s “claim” is its March 8, 2012 protest 

itself. See Protest 1512-12-100039, ECF No. 39-1 at Ex. D. 

Reading “claim of treatment” in the context of the 

regulation as a whole, “reconciling the section in question with 

sections related to it,” Lengerich, 454 F.3d at 1370, clarifies 

which definition is appropriate here.37 While the phrase “claim

of treatment” appears at only one other time in the regulatory 



36 “Claim” is also defined therein as a “right to payment or to 

an equitable remedy for breach of performance if the breach gave 

rise to a right of payment,” and, in patent law, a “formal 

statement describing the novel features of an invention and 

defining the scope of the patent’s protection.” Id. at 241. 

37 See NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941) 

(L. Hand, J.) (“Words are not pebbles in alien juxtaposition; 

they have only a communal existence; and not only does the 

meaning of each interpenetrate the other, but all in their 

aggregate take their purport from the setting in which they are 

used[. . .].”). 
Court No. 12-00138 Page 21 

framework (and much to the same effect),38 “claim” and 

“treatment” appear in various iterations in relation to each 

other throughout. Specifically, 19 C.F.R. § 177.12 provides 

detailed guidance on what evidence is relevant and necessary to 

assert a treatment claim.39 In contrast, the regulation does not 

provide or require a specific mechanism through which that 

assertion, a treatment claim, must be made.40 Indeed, in 



38 Stating that there is no treatment if the importer fails to 

establish the treatment “over the 2–year period immediately 

preceding the claim of treatment.” 19 C.F.R. 

§ 177.12(c)(1)(iii)(A). 

39 In making a claim of treatment, the “evidentiary burden as 

regards the existence of the previous treatment is on the person 

claiming that treatment.” 19 C.F.R. § 177.12(c)(1)(iv). That 

person must provide, inter alia, evidence to establish that 

“[t]here was an actual determination by a Customs officer 

regarding the facts and issues involved in the claimed 

treatment,” id. at § 177.12(c)(1)(i)(A), and should provide, if 

known, “the name and location of the Customs officer who made 

the determination on which the claimed treatment is based,” id. 

at § 177.12(c)(1)(iv). “[T]he person claiming a previous 

treatment must be prepared to submit to Customs written or other 

appropriate evidence of the earlier actual determination of a 

Customs officer that the person relied on in preparing the entry 

and that is consistent with the liquidation of the entry.” Id.

If it is found that this person “made a material false statement 

or material omission in connection with a Customs transaction or 

in connection with the review of a Customs transaction and that 

statement or omission affected the determination on which the 

treatment claim is based,” then Customs will find no treatment. 

Id. at § 177.12(c)(1)(iii)(C). 

40 19 C.F.R. § 177.12(c)(2)(ii) provides that a person may make a 

“written application” to Customs “claiming that the interpretive 

ruling has the effect of modifying or revoking the treatment 

previously accorded by Customs to his substantially identical 

transactions,” such that Customs will “consider delaying the 

effective date of the interpretive ruling with respect to that 

(footnote continued) 
Court No. 12-00138 Page 22 

practice, Customs accepts treatment claims in a variety of 

forms, including, as here, protests pursuant to 19 U.S.C. 

§ 1514.41 It follows then, from the text of 19 C.F.R. § 177.12, 

that a “claim of treatment” is the assertion that a right to a 

treatment exists, not the administrative mechanism or filing 

through which such a claim is made. 

 Accordingly, Plaintiff’s claim of treatment was the 

assertion in its March 8, 2012 protest that its entries were 

“classifiable [under the duty-free provision, 5803, HTSUS,] due 



person, and continue the treatment previously accorded the 

substantially identical transactions,” pending notice and 

comment. This may be the non-protest mechanism that Defendant 

alludes to, without citation. Def.’s Resp., ECF No. 47, at 14. 

However, the regulation does not equate “written application” 

with “claim of treatment,” nor does it define “written 

application” in such a way that precludes use of existing 

administrative mechanisms that require written application, 

e.g., protests, see 19 U.S.C. § 1514(c)(1) (“A protest . . . 

shall be filed in writing, or transmitted electronically 

pursuant to an electronic data interchange system [. . .].”).

41 See HQ H209836 (Apr. 23, 2015), 2015 WL 4385860 at *7 (“The 

claim of treatment [was] made in conjunction with the protested 

entries”); HQ H241622 (Apr. 24, 2015), available at 2015 WL 

4385863 (claim of treatment made in a protest); HQ H076723 (Nov. 

24, 2010), available at 2010 WL 5810910 (same); HQ H074375 (Nov. 

22, 2010), available at 2010 WL 5819067 (same); HQ H022287 (Dec. 

30, 2010), available at 2010 WL 6524009 (same); HQ 967289 (Jan. 

4, 2005), available at 2005 WL 934029 at *3 (noting that “[t]he 

claim of treatment [was] made in [the] protest”); HQ 966794 

(Sept. 7, 2004), available at 2004 WL 3049068 (claim of 

treatment made in a protest); see also HQ H025849 (Nov. 17, 

2010), available at 2010 WL 5810900 (claim of treatment made in 

request for internal advice pursuant to 19 C.F.R. § 177.11); HQ 

W968251 (Oct. 3, 2007), available at 2007 WL 4792308 (claim of 

treatment made in letter to Customs); HQ 965956 (Jan. 22, 2003), 

available at 2003 WL 1386611 (same).
Court No. 12-00138 Page 23 

to an established treatment,” absent appropriate notice and 

comment, pursuant to 19 U.S.C. § 1625(c). Attach. to Protest, 

ECF No. 39-1 at Ex. D, at 1.42 It was not the protest itself. 

B. Dating a “claim of treatment” 

Given that a “claim of treatment” is distinct from the 

filing in which it is made, the “2-year period immediately 

preceding [that] claim of treatment” is also, while not 

necessarily different, distinct. A claim is not the same as the 

filing in which it comes, and is dated by its facts not its 

filing. Cf. Bay Area Laundry & Dry Cleaning Pension Trust Fund 

v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997) (dating a 

claim to when it arises, not to when the complaint is filed).

Inasmuch as a “claim of treatment” is an assertion of a right, 

made up of its operative facts, so too is the 2-year period 

immediately preceding it defined by that assertion and those 

facts. Reading 19 C.F.R. § 177.12 in its statutory and 

regulatory context, “reconciling the section in question with 

sections related to it,” Lengerich, 454 F.3d at 1370, with an 

eye to its object and policy, Warner–Lambert, 316 F.3d at 1355, 

confirms this understanding.



42 See also id. at 2-3 (“In late 2009/ early 2010, CBP at the 

port of Los Angeles changed the classification for Heading 5803 

to classification as a cotton fabric in Heading 5208.”). 
Court No. 12-00138 Page 24 

Regarding context, Customs can be presumed to be 

“knowledgeable about existing law pertinent to [regulations it 

promulgates].” See VE Holding Corp. v. Johnson Gas Appliance 

Co., 917 F.2d 1574, 1581 (Fed. Cir. 1990) (citing Goodyear 

Atomic Corp. v. Miller, 486 U.S. 174, 184–85 (1988)). Treatment 

claims, lacking a specific administrative mechanism, are often 

made through protests.43 This prevalence is likely because, if 

an importer wishes to contest an interpretive ruling or decision 

that results in the liquidation of its entries, e.g., a notice 

of action, it must make its claim of treatment through a protest 

to ensure this Court’s jurisdiction over any appeal of that 

ruling or decision.44 However, protests may only be filed after 



43 See supra, footnote 41. 

44 See 19 U.S.C. § 1514(a)(2) (providing that “decisions of the 

Customs Service, including the legality of all orders and 

findings entering into the same, as to . . . the classification 

and rate and amount of duties chargeable . . . shall be final 

and conclusive upon all persons (including the United States and 

any officer thereof) unless a protest is filed in accordance 

with this section, or unless a civil action contesting the 

denial of a protest, in whole or in part, is commenced in the 

United States Court of International Trade [. . .].”); see also 

Volkswagen of Am., Inc. v. United States, 532 F.3d 1365, 1370 

(Fed. Cir. 2008) (“As this court and its predecessor have 

confirmed, the language of [19 U.S.C.] § 1514 establishes 

liquidation as a final challengeable event in Customs’ appraisal 

process. Findings related to liquidation—including valuation — 

merge with the liquidation. If an importer wishes to challenge 

the appraised value of merchandise, the importer must protest 

the liquidation.”) (citations omitted); Int’l Custom Prods., 

Inc. v. United States, 467 F.3d 1324, 1326-28 (Fed. Cir. 2006) 

(holding that this Court did not have 28 U.S.C. § 1581(i) 

(footnote continued) 
Court No. 12-00138 Page 25 

liquidation of the entries at issue. 19 U.S.C. § 1514(c)(3)(A).

Under statute, Customs has one year to liquidate an entry before 

it is deemed liquidated by operation of law. 19 U.S.C. 

§ 1504(a). Typically, Customs liquidates an entry within 314 

days. See 314-Day Liquidation Cycle-Trade Notice, CSMS 97-000727 

(Aug. 3, 1997). Importers have up to 180 days from liquidation 

to file their protest. 19 U.S.C. § 1514(c)(3); 19 C.F.R. 

§ 174.12(e). This means that the most common mechanism for 

making a claim of treatment, a protest, may not be filed until 

494 days after a treatment has changed.45 It would be contrary 

to Customs’ presumed knowledge to read 19 C.F.R. § 177.12 and 

its two-year evidentiary requirement in such a way that would, 

because of procedural requirements laid out in other regulations 

and statutes, consistently and inevitably guide the agency or 

court to consider an evidentiary period that is, because it is 

after the liquidation, largely irrelevant (i.e., when the 



jurisdiction over plaintiff’s 19 U.S.C. § 1625(c) challenge to a 

notice of action because jurisdiction under 28 U.S.C. § 1581(a) 

would not have been manifestly inadequate; remanding to this 

Court with instructions to dismiss for lack of jurisdiction 

because the plaintiff had not protested the liquidation of the 

entries subject to the challenged notice of action as required 

for 19 U.S.C. § 1581(a) jurisdiction).

45 Cf. Xerox Corp. v. United States, 28 CIT 1667, 1670 (2004) 

aff'd, 423 F.3d 1356 (Fed. Cir. 2005) (“[W]hen Customs replaced 

its 90 day liquidation cycle with a 314 day liquidation cycle” 

it meant “that the typical time for filing a protest would 

extend beyond a year from the date of entry.”) 
Court No. 12-00138 Page 26 

alleged treatment has already been modified or revoked for more 

than a year).

Regarding object and policy, a regulation must be 

interpreted “in [a] manner which effectuates rather than 

frustrates [its] major purpose.” Shapiro v. United States, 335 

U.S. 1, 31 (1948). Customs chose the two years immediately 

“preceding the claim of treatment” as the requisite evidentiary 

period because the agency consider it the most relevant for 

“protecting the treatment rights of a person.” See Customs 

Service: 19 C.F.R. Part 177, 67 Fed. Reg. at 53,494. This 

purpose evinces a context-based approach meant to ensure that 

“the interested public has notice of a proposed change in 

Customs’ policy” and can “modify any current practices that were 

based in reliance on Customs’ earlier policy.” Sea-Land Serv., 

Inc. v. United States, 239 F.3d 1366, 1373 (Fed. Cir. 2001) 

(summarizing the purpose of enabling statute 19 U.S.C. § 1625).

Here, Plaintiff’s “claim of treatment” was the 

assertion, made in its March 8, 2012 protest, of its right to a 

treatment pursuant to 19 U.S.C. § 1625(c). Attach. to Protest, 

ECF No. 39-1 at Ex. D, at 1, 2-3. The defining, operative facts 

that gave rise to Plaintiff’s claim are that Plaintiff made an 

entry on July 11, 2009, and, on January 14, 2010, through a 

CF-29 notice of action, Customs reclassified this entry and all 

similar pending entries from a duty-free to a dutiable 
Court No. 12-00138 Page 27 

provision. See Jan. 2010 Notice of Action, ECF No. 39-1 at 

Ex. A; Attach. to Protest, ECF No. 39-1 at Ex. D, at 2 (“In late 

2009/early 2010, CBP at the port of Los Angeles changed the 

classification [of Plaintiff’s entries]”); see also 2d. Am. 

Compl., ECF No. 11-1, at ¶ 14. This entry is the first subject 

to Plaintiff’s claim of treatment and, as such, the inflection 

point when Plaintiff’s claimed treatment changed, i.e., when the 

“pattern of actions taken by Customs on [Plaintiff’s] import 

transactions, on which [Plaintiff claims it] has reasonably 

relied,” putatively changed without notice or comment. See 

Customs Service: 19 C.F.R. Part 177, 67 Fed. Reg. at 53,489 

(providing Customs’ explanation of the purpose behind enacting 

19 U.S.C. § 1625(c) and 19 C.F.R. § 177.12). The “relevant” 

2-year evidentiary period “for purposes of protecting the 

treatment rights” of the Plaintiff, then, are two years prior to 

that point, immediately prior to when the claim arose. See id. 

at 53,494. Accordingly, the two years immediately preceding 

Plaintiff’s claim of treatment are the two years immediately 

preceding its earliest affected entry (i.e., the first entry 

that does not receive the anticipated, relied upon treatment),46

here July 11, 2007 through July 11, 2009.47



46 Cf. Customs own interpretation in previous 19 U.S.C. 

§ 1625(c)(2) determinations, HQ H076723 (Nov. 24, 2010), 

available at 2010 WL 5810910 at *11 (finding the relevant 

(footnote continued) 
Court No. 12-00138 Page 28 

CONCLUSION

 Therefore, upon consideration of Defendant’s Partial 



evidentiary for a claim of treatment was “the two year period 

immediately preceding the claimed treatment tariff 

classification,” i.e., “the two year period immediately 

preceding the [entry of] merchandise subject to the claim of 

treatment”).

47 This entry, and subsequent January 2010 notice of action, are 

within the scope of relevant, and therefore admissible evidence. 

See Fed. Rule Evid. 402; Int’l Custom Prods. v. United States, 

__ CIT __, 774 F. Supp. 2d 1338, 1342 (2011) (denying 

defendant’s motion to preclude evidence in a 19 U.S.C. § 1625(c) 

action brought under 28 U.S.C. § 1581(a) “to the extent that the 

evidence is otherwise admissible and [relevant]”) (citing Fed. 

Rule Evid. 402). However, because this entry is not part of the 

underlying protest here (its liquidation does not appear to have 

been protested at all), because it is not listed on the summons 

in this action, this Court lacks jurisdiction to grant relief 

with regards to it. Summons, ECF No. 1; 28 U.S.C. § 1581(a); 

DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1319 

(Fed. Cir. 2006) (holding that this Court lacks jurisdiction 

over entries not listed on the summons); Int’l Custom Prods., 

Inc. v. United States, __ CIT __, 878 F. Supp. 2d 1329 (2012), 

aff'd, 748 F.3d 1182 (Fed. Cir. 2014) (finding that a CF-29 

notice of action was an “interpretive ruling or decision” within 

the meaning of 19 U.S.C. 1625(c), while maintaining 

jurisdiction, under 28 U.S.C. 1581(a) via another, unrelated 

entry, protest, and denial).

While Defendant notes the peculiarity of Plaintiff’s 

failure to protest the liquidation of the entry subject to the 

January 2010 notice of action, Def.’s Resp., ECF No. 47, at 15, 

it does not challenge Plaintiff’s failure to do so as creating 

unreasonable or prejudicial delay in commencing this action. See 

USCIT Rule 8(d)(1) (providing laches as an available affirmative 

defense); Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946) 

(discussing the laches defense: “There must be conscience, good 

faith, and reasonable diligence, to call into action the powers 

of the court [. . .]. [The] court may dismiss a suit where the 

plaintiffs’ lack of diligence is wholly unexcused; and both the 

nature of the claim and the situation of the parties was such as 

to call for diligence.”) (internal quotation marks and citations 

omitted).
Court No. 12-00138 Page 29 

Motion for Summary Judgment, and Plaintiff AFF’s Cross-Motion 

for Summary Judgment, Defendant’s motion is hereby DENIED and 

Plaintiff’s cross-motion is hereby GRANTED in part and DENIED in 

part. The parties shall consult and, not later than November 

20, 2015 propose a schedule for further proceedings in this 

matter.

IT IS SO ORDERED. 

/s/Donald C. Pogue 

Donald C. Pogue, Senior Judge

Dated: October 21, 2015 

 New York, NY