CUSTOMS CASES: DECISIONS UNDER 28 U.S.C. § 1581(a) AND 28 U.S.C. § 1582

Georgetown Journal of International Law, Fall 2007 by Williams, Barbara S

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 transactions other than the transaction of just the person before Customs claiming the right to a notice and comment process.58

The Federal Circuit also held that a former regulation which was in effect at the time section 1625(c) was enacted, 19 C.F.R. § 177.10(c) (2) (1993), supported the view that Congress intended substantially identical transactions forming a single treatment to included the transactions of multiple parties.59 Finally, the Court examined 19 C.F.R. §177.9(e), which all parties agreed formed the basis for 19 U.S.C. § 1625(c) (2). This regulation stated:

Ruling letters modifying past Customs treatment of transactions not covered by ruling letters - (1) General. 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. Although such a ruling letter will generally be effective on the date it is issued, the Customs Service may, upon application by an affected party, delay the effective date of the ruling letter, and continue the treatment previously accorded the substantially identical transaction, for a period of up to 90 days from the date the ruling is issued.60

The Federal Circuit held that 19 C.F.R. §l77.9(e) (1) was essential in drafting 19 U.S.C. § 1625(c), and in the regulation "Congress relied on the definition of 'treatment' that encompassed actions towards Other parties."*61 The Court concluded that if Congress had intended a narrower reading of "substantially identical transactions ... it would have made that intention clear with express" statutory language. The Federal Circuit concluded that CIP's reliance upon a treatment given to others was sufficient for it to establish a treatment under 19 U.S.C. §1625(c)(2).

3. Corrpro Companies, Inc. v. United States62

In Corrpro, the Federal Circuit reversed the trial court's determination that subject matter jurisdiction existed over the action. In particular, Corrpro sought duty-free entry of its goods under the North American Free Trade Agreement ("NAFTA"). In order to obtain NAFTA treatment of its merchandise, Corrpro was required at the time of entry to submit a written declaration that its goods qualified under NAFTA, and to base that declaration on a NAFTA Certificate of Origin.63 If an importer failed to do so, it could instead make a claim for a refund of duties paid on merchandise subject to NAFTA by submitting the written declaration and Certificate of Origin within one year after the date of importation.64