Full opinion text
OPINION WALLACH, Judge. I. Preliminary Statement This case comes before the court on Defendant’s Motion for Reconsideration and/or Relief From the Court’s Order Dated May 24, 2000 (the “Reconsideration Motion”), and on Plaintiffs Motion for Summary Judgment Pursuant to United States Court of International Trade Rule 56 (“Plaintiffs Motion for Summary Judgment”). The Order dated May 24, 2000 struck Defendant’s Opposition to Plaintiffs Motion for Summary Judgment and Cross-Motion for Summary Judgment, and the related papers filed therewith, as untimely filed, and granted summary judgment in favor of Plaintiff as Plaintiffs Motion for Summary Judgment was thus unopposed. In the Reconsideration Motion, Defendant asks the court to accept its late-filed submissions on summary judgment. In the alternative, Defendant urges the court to make an independent analysis of the merits of Plaintiffs Motion for Summary Judgment. For the reasons set forth below, the court grants the Reconsideration Motion to the extent that it seeks an independent analysis by the court of Plaintiffs Motion for Summary Judgment. The court denies the remainder of the Reconsideration Motion. In its Motion for Summary Judgment, Plaintiff Precision Specialty Metals, Inc. (“Precision”) contests Customs’ denial of drawback on certain entries of stainless steel trim and scrap. Customs based its denial on a determination that the subject merchandise is “waste” or “valuable waste”, and thus is not an “article manufactured or produced” within the meaning of the drawback statute, 19 U.S.C. § 1313(b) (1994). Plaintiff contends that, as a matter of fact and of law, the merchandise at issue is not waste, and that Plaintiff is entitled to drawback thereon. Because the court concludes that Plaintiff has failed to meet its burden on summary-judgment to demonstrate the absence of any genuine issue of material fact, Plaintiffs Motion for Summary Judgment is denied. II. Background A. Facts This case involves 38 claims for substitution manufacturing drawback made pursuant to 19 U.S.C. § 1313(b), the manufacturing substitution drawback statute, and Treasury Decision (“T.D.”) 81-74. T.D. 81-74 is a general drawback contract for articles manufactured using steel, and provides, in pertinent part, for the allowance of drawback on imported “[sjteel of one general class, e.g. an ingot”, where the “merchandise ... which will be used in the manufacture of the exported products” is “[s]teel of the same general class, specification and grade as the [subject imported] steel[.]” The steel used in the manufacture of the exported products on which drawback is sought must be “used to manufacture new and different articles, having distinctive names, characters and uses.” T.D. 81-74 further provides that “no drawback is payable on any waste which results from the manufacturing operation.” On October 23, 1991, Precision submitted a letter to Customs expressing its intention to adhere to and comply with the terms of T.D. 81-74. See App. A-l. In that letter, Precision described the various steel products on which it would claim drawback. Those products included “stainless steel coils, sheets and trim” of various chemistries identified by industry standards. Id. at 1. Customs granted Precision’s request to claim drawback under T.D. 81-74. App. A-4 (Letter from Customs to Precision, dated January 10, 1991 [sic — 1992]). Precision filed 116 drawback entries under T.D. 81-74 between December 11, 1991 and May 13, 1996. Rule 56(i) Statement, ¶ 5. Customs liquidated 69 of these entries with full benefit of drawback, in which Precision had claimed exports of stainless steel trim, stainless steel strip, stainless steel scrap and stainless steel coils, for a total of approximately $850,000. Id. at ¶ 6. Over that period, Customs routinely requested clarifying information concerning Precision’s drawback entries. Id. at ¶ 7. Prior to January 1996, Customs never questioned the eligibility of that merchandise for drawback. Id. at ¶ 7. Documentation submitted in connection with the remaining entries, which corn tained the merchandise at issue, described the merchandise by various terms such as “stainless steel,” “metal scrap,” “scrap steel for remelting purposes only,” “steel scrap sabot,” “stainless steel scrap,” and “desperdicio de acero inoxidable.” Id. at ¶ 18. See App. B at 2. During 1992 and 1998, when conducting “pre-liquidation reviews” of three drawback claims that involved exports of “[s]tainless [s]teel coil ends and side trim (scrap)”, Customs asked Precision for additional information and documentation on the exports involved. App. A-8 (Letter from Customs to Pat Revoir dated July 10, 1992); App. A-ll (Letter from Gary Appel to Customs dated July 22, 1992). In response, Precision furnished Customs with additional information and documentation, showing that the exported material was stainless steel scrap. Customs liquidated each of those three drawback entries for the full amount of drawback claimed. See App. A-14 (Notice of Liquidation); Rule 56(i) Statement, ¶¶ 8-10. In January 1996, Customs first questioned the eligibility of Precision’s claims involving stainless steel trim for drawback. See Rule 56(i) Statement, ¶7; App. A-7 (January 10, 1996 notice from Customs to Appel-Revoir). In June 1996, Precision received a Notice of Action informing it that 88 of its drawback entries were being liquidated without the benefit of drawback in full or part, on the basis that “scrap was shown on the export bill(s) of lading” and that “[drawback is not available upon exports of valuable waste.” App. A-20. The entries at issue were liquidated on June 14, 1996. Rule 56(i) Statement, ¶ 14. B. Procedural History On September 10, 1996, Precision filed a timely protest covering the entries at issue in this matter. See Rule 56(i) Statement, ¶ 15. Customs denied Precision’s protest. Id., ¶ 16. Precision thereafter timely commenced this action by filing a summons on February 5, 1998. Precision filed its complaint on October 21,1998. On July 26, 1999, the court issued a scheduling order, setting the close of discovery for December 31, 1999. On January 4, 2000, the court granted the parties’ consent motion for an extension of the discovery cutoff, and extended the cutoff to February 29, 2000. At a status conference held March 2, 2000, Defendant stated that it had not yet completed its discovery efforts (which corn-menced shortly before the already-extended discovery cutoff date), and indicated that it wished to seek the court’s permission to conduct further discovery. That day, the court issued a scheduling order (the “March 2 Order”), setting a March 9, 2000 deadline for Defendant to file any motion for limited additional discovery. This order also set a deadline of April 3, 2000 for Plaintiff to file a motion for summary judgment. Defendant was given 30 days in which to file any opposition and/or cross-motion to plaintiffs summary judgment motion. Plaintiff was given 10 days in which to file any reply brief. Trial was set for June 19, 2000, in the event that all issues were not resolved on summary judgment. On March 14, 2000, the court issued an order modifying the March 2 Order. This March 14 order granted Plaintiff 30 days in which to file reply papers in the event the Defendant filed a cross-motion, and provided that trial would be rescheduled if a cross-motion were filed. On April 11, 2000, the court issued an order partially granting Defendant’s motion for additional discovery, and providing that Defendant was to complete any such discovery no later than April 25, 2000. Plaintiff filed its Motion for Summary Judgment on March 31, 2000. Thus, by the terms of the March 2 Order, Defendant was required to file any opposition and/or cross-motion papers no later than May 5, 2000. On May 4, 2000, at 5:51 p.m., Defendant filed Defendant’s Motion to Extend the Time Within Which to File Its Response to Plaintiffs Motion for Summary Judgment (“Defendant’s Motion for Extension”), seeking a thirty-day extension of time in which to file its opposition to Plaintiffs Motion for Summary Judgment. Defendant’s Motion for Extension, and the supporting papers, contained no request for an extension of time for Defendant to file a cross-motion for summary judgment. On May 10, 2000, the court issued an order denying Defendant’s Motion for Extension and requiring Defendant to file any opposition to Plaintiffs Motion for Summary Judgment “forthwith”. On May 19, 2000 (two weeks after the date on which Defendant’s opposition papers should have been filed), Plaintiff filed Plaintiffs Motion for Establishment of a Hearing Schedule, If Necessary, on Plaintiffs Motion for Summary Judgment (“Plaintiffs Motion for Hearing Schedule”). In this motion, Plaintiff urged that briefing on its Motion for Summary Judgment should be held to be closed, in light of the fact that Defendant had yet to file any papers opposing summary judgment. Also on May 19, 2000, the court issued an order scheduling an in-court status conference. On May 22, 2000, at 5:24 p.m. — the night before the conference set for Plaintiffs Motion for Hearing Schedule — Defendant filed its Opposition to Plaintiffs Motion for Summary Judgment and Cross-Motion for Summary Judgment, Defendant’s Statement of Material Facts As To Which There Is No Genuine Issue To Be Tried, Defendant’s Memorandum in Opposition to Plaintiffs Motion for Summary Judgment and In Support of Defendant’s Cross-Motion for Summary Judgment, and Defendant’s Response to Plaintiffs Annex Pursuant to U.S. CIT Rule 56(i) (collectively, “Defendant’s Opposition Papers”). On May 23, 2000, the court held an in-court status conference. During that conference, the court heard argument regarding Plaintiffs Motion for Hearing Schedule, including that part of the motion that asked, the court to close briefing on Plaintiffs Motion for Summary Judgment. On May 24, 2000, the court issued an order (the “May 24 Order”) striking Defendant’s Opposition Papers from the record, granting Plaintiffs Motion for Summary Judgment as unopposed, directing Plaintiffs counsel to file proposed findings of fact and conclusions of law and a proposed form of judgment, and canceling the trial previously scheduled for June 20, 2000. On June 2, 2000, Defendant filed the instant Reconsideration Motion, seeking reconsideration and/or relief from those portions of the May 24 Order that (1) struck Defendant’s Opposition Papers as untimely filed, and (2) granted Plaintiffs Motion for Summary Judgment as unopposed. On June 16, 2000, the court issued an order which, in pertinent part, denied the Reconsideration Motion insofar as it sought reconsideration of that part of the May 24 Order which struck Defendant’s Cross-Motion for Summary Judgment as untimely filed. As noted in the June 16 Order, that part of the Reconsideration Motion is baseless. By order dated March 2, 2000, Defendant was required to file any cross-motion no later than May 5, 2000. Defendant’s Motion for Extension, and the supporting papers, contained no request for an extension of time for Defendant to file a cross-motion. Defendant never moved for an extension of time in which to file a cross-motion for summary judgment, and there was no decision on that issue to be reconsidered. The June 16 Order thus limited oral argument to. the remaining aspects of the Reconsideration Motion. The issues embraced therein are discussed below, and are followed by a discussion of Plaintiffs Motion for Summary Judgment. III. Analysis of Defendant’s Reconsideration Motion A. Defendant’s Opposition Papers Were Untimely Filed Defendant asks the court to reconsider that part of the May 24 Order that struck Defendant’s Opposition Papers. As grounds for reconsideration, Defendant urges that the term “forthwith”, as used in the May 10 Order denying Defendant’s Motion for Extension, was ambiguous, and asserts that the May 22, 2000 filing of Defendant’s Opposition Papers was timely under a reasonable interpretation of the May 10 Order. The factual basis for this argument is unsupported by the record; its legal premise is without sufficient authority to persuade this court that it has merit. Defendant filed its Opposition Papers seventeen days after the date those papers were due under the March 2 Order, and twelve days after the court denied Defendant’s Extension of Time Motion. Defendant thus effectively granted itself a seventeen-day extension, although the court denied its request for a thirty-day extension. Defendant contends that its belated filing fell within a reasonable interpretation of the definition of “forthwith”. Defendant cites Black’s Law Dictionary, which defines “forthwith” as: Immediately; without delay; directly; within a reasonable time under the circumstances of the case; promptly and with reasonable dispatch. U.S. ex rel. Carter v. Jennings, E.D.Pa., 338 F.Supp. 1392, 1397. Within such time as to permit that which is to be done, to be done lawfully and according to the practical and ordinary course of things to be performed or accomplished. The first opportunity offered. Black’s Law Dictionary 654 (Sixth Ed.1990). Defendant also cites judicial constructions of the term. Many of these examine the use of “forthwith” in the context of the Suits in Admiralty Act (“SAA”), 46 U.S.C. § 742 (1988), which requires service on the United States Attorney “forthwith”. In that context, Libby v. United States, 840 F.2d 818, 821 (11th Cir.1988), defines the term to require action with “reasonable promptness, diligence or dispatch” (quoting U.S. v. Bradley, 428 F.2d 1013, 1015-16 (5th Cir.1970)), and notes that “in assessing the reasonableness of the speed with which one acts it is essential to consider the act which one is performing.” Justice Thomas, in dissenting to the Supreme Court’s holding in Henderson v. United States, 517 U.S. 654, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996), observed that “[although we have never undertaken to define ‘forthwith’ as it is used in the SAA, it is clear that the term ‘connotes action which is immediate, without delay, prompt, and with reasonable dispatch.’ ” Id., 517 U.S. at 680, 116 S.Ct. 1638 (citations omitted). Defendant noted that the Second Circuit stated in City of New York v. McAllister Bros., Inc., 278 F.2d 708 (2d Cir.1960), that “ ‘[forthwith’ means immediately, without delay, or as soon as the object may be accomplished by reasonable exertion.” Id., 278 F.2d at 710. Defendant omitted, however, the following sentence which the court finds particularly instructive: “The Supreme Court has said of the word that ‘in matters of practice and pleading it is usually construed, and sometimes defined by rule of court, as within twenty-four hours.’ Dickerman v. Northern Trust Co., 176 U.S. 181, 193, 20 S.Ct. 311, 44 L.Ed. 423 (1900)_” Id. (emphasis added). The common thread running through the case law and the definition quoted from Black’s is a paramount emphasis on immediacy, under the attendant circumstances. Indeed, Defendant’s counsel indicated at oral argument that she understood the term “forthwith” to mean “immediately”: I understand and appreciate that “forthwith” means immediately, I do appreciate that, and that is why so much of my time was dedicated to preparing our cross motion, what “forthwith” means though, in terms of days, I didn’t know. Transcript of oral argument at Status Conference on May 23, 2000, at 14. Further resort to Black’s Law Dictionary reveals the following definition of the word “immediately”, which is the first word appearing in the Defendant’s definitions of the word “forthwith”: Without interval of time, without delay, straightway, or without any delay or lapse of time. Drumbar v. Jeddo-Highland Coal Co., 155 Pa.Super. 57, 37 A.2d 25, 27. When used in contract is usually construed to mean “within a reasonable time having due regard to the nature of the circumstances of the case”, although strictly, it means “not deferred by any period of time”. Integrated, Inc. v. Alec Fergusson Elec. Contractors, 250 Cal.App.2d 287, 58 Cal.Rptr. 503, 508, 509. The words “immediately” and “forthwith” have generally the same meaning. They are stronger than the expression “within a reasonable time” and imply prompt, vigorous action without any delay. Alsam Holding Co. v. Consolidated Taxpayers’ Mut. Ins. Co., 4 N.Y.S.2d 498, 505, 167 Misc. 732. Black’s Law Dictionary 750 (Sixth Ed.1990) (emphasis added). A delay of seventeen days in performing an act for which the court had rejected an extension of thirty days is outside the meaning of the term forthwith in the context of the court’s May 10 Order. Defendant’s Opposition Papers were not filed “immediately”. Indeed, the seventeen-day delay does not even demonstrate “reasonable dispatch”, particularly in light of the court’s denial of the requested extension. For this reason, Defendant’s Reconsideration Motion is denied insofar as it seeks to have the court accept its late-filed Opposition Papers. The court now turns to the remaining aspect of the Reconsideration Motion. B. Plaintiffs Motion For Summary Judgment Should Be Assessed On Its Merits Defendant argues that, even if the court declines to accept its late-filed Opposition Papers, the court must assess the merits of Plaintiffs Summary Judgment Motion prior to granting summary judgment. Plaintiff concedes the point. “Summary judgment is warranted when, based upon the ‘pleadings, depositions, answers to interrogatories, ... admissions on file, ... [and] affidavits, if any,’ the court concludes that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.” Peg Bandage, Inc. v. United States, 17 CIT 1337, 1339 (1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Under this standard, the court must reach a conclusion that there is no factual issue and that the applicable laws warrant judgment in favor of the movant; absent such a conclusion, there can be no summary judgment. This rule is underscored by the wording of USCIT Rule 56(f), which provides, in pertinent part, that where a motion for summary judgment is unopposed, “summary judgment, if appropriate, shall be entered against the adverse party.” Id. (emphasis added). Plainly, summary judgment may not be entered if it is not “appropriate”, and that determination is a function of the court. On a motion for summary judgment, the movant bears the burden of demonstrating that there is no genuine issue of material fact. United States v. F.H. Fenderson, Inc., 10 CIT 758, 760 (1986) (citing SRI Int’l v. Matsushita Electric Corp. of America, 775 F.2d 1107, 1116 (Fed.Cir.1985)). If that burden is not met, there can be no grant of summary judgment. The courts are also under an obligation to view the evidence in a light most favorable to the nonmovant, and to draw all reasonable inferences in its favor. Id. This obligation does not depend on the presence of opposition papers from the nonmovant. These well-recognized standards demonstrate that lack of opposition is not, standing alone, a sufficient basis for granting a summary judgment motion. The court’s order of May 24, 2000, was thus to that extent in error, and accordingly, the court grants that portion of Defendant’s Reconsideration Motion which asks the court to independently review Plaintiffs Motion for Summary Judgment. The following portion of this Opinion constitutes that review. IV. Analysis of Plaintiffs Motion for Summary Judgment A. Standard of Review The court subjects this unopposed motion for summary judgment to the usual standard on summary judgment, outlined above. In doing so, the court reviews Customs’ denial of Plaintiffs protest de novo. See Rheem Metalurgica S/A v. United States, 20 CIT 1450, 1456, 951 F.Supp. 241, 246 (1996), aff'd 160 F.3d 1357 (Fed.Cir.1998). Although the decision of the Customs Service is presumed correct and “[t]he burden of proving otherwise shall rest upon the party challenging such decision,” the court’s role in reviewing the decision is to reach the correct result. 28 U.S.C. § 2639(a)(1) (1994); see also Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed.Cir.1984). The court will therefore consider this matter de novo to reach the proper result. Thus, the court will sustain Customs’ decision if it is proper, even if the rationale is not articulated in Customs’ decision. Customs’ decision on Plaintiffs protest relies in part on its regulations enacted to implement the provisions of the drawback statute. If that statute is clear on its face, the court must follow Congressional intent, regardless of the existence of an interpretation by Customs to the contrary. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If the statute is ambiguous, an agency interpretation embodied in the implementing regulations is entitled to deference, as is an agency interpretation arrived at following a formal adjudication. Id., 467 U.S. at 843-44, 104 S.Ct. 2778; Christensen v. Harris County, 529 U.S. 576, 120 S.Ct. 1655, 1662, 146 L.Ed.2d 621 (2000). Such deference is only warranted, however, if the agency’s interpretation is based on a permissible construction of the statute, in light of the language, policies and legislative history of the statute. See Chevron, 467 U.S. at 843, 104 S.Ct. 2778; Corning Glass Works v. United States, 799 F.2d 1559, 1565 (Fed.Cir.1986). To the extent that Customs’ regulation is ambiguous, deference to Customs’ interpretation of that regulation is entitled to deference as well. Christensen, 120 S.Ct. at 1662; Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). B. Plaintiff Has Failed to Demonstrate That Steel Scrap is Subject to Drawback Plaintiff claims drawback under 19 U.S.C. § 1313(b), which provides that: (b) Substitution for drawback purposes 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 .... (emphasis added). A manufacturer seeking to avail itself of the drawback privilege must comply with applicable rules and regulations. See 19 U.S.C. § 1313©; 19 C.F.R. § 191.23(d) (1996); 19 C.F.R. § 191.45 (1996). Among other things, the regulations provide that “each manufacturer ... shall apply for a specific drawback contract by submitting a drawback proposal.” 19 C.F.R. § 191.21(a) (1996). This is not a question of whether a party has satisfied a commercial contract; this case presents a claim for “exemption from duty, a statutory privilege due only when enumerated conditions are met.” Guess? Inc. v. United States, 944 F.2d 855, 858 (Fed.Cir.1991). “ ‘Such a claim is within the general principle that exemptions must be strictly construed, and that doubt must be resolved against the one asserting the exemption.’ ” Id. (quoting United States v. Allen, 163 U.S. 499, 504, 16 S.Ct. 1071, 41 L.Ed. 242 (1896)). 1. Customs’ Decision Customs determined that the stainless steel scrap at issue is “valuable waste” under the terms of the drawback contract, and- thus not an article that is manufactured or produced within the meaning of § 1313(b). App. B at 5. Customs cited 19 C.F.R. § 191.22(a)(2) (1996), which provides that “[i]n liquidating the drawback entry, the quantity of imported duty-paid merchandise or drawback products used will be reduced by an amount equal to the quantity of merchandise the value of the waste would replace.” App. B at 3; see also 19 C.F.R. § 191.32(b) (1996). Indeed, as Customs noted, since 1936 it has expressly required exclusion of the value of valuable waste from the amount of drawback. See App. B at 3. Customs also cited C.S.D. 80-137, Drawback: Whether Drawback is Allowable on Valuable Waste Incurred in Manufacture, 14 Cust. B. & Dec. 941 (Oct. 22, 1979). Id. That decision involved a manufacturer’s application for drawback on the exportation of a valuable waste byproduct which resulted from the manufacture of steel rolled coils. Customs noted that drawback is allowable on exports of byproducts, but not on exports of valuable wastes. Id. at 941. Customs distinguished wastes, which result from “a ‘process of segregation or elimination,’ ” from byproducts, which are produced by a “ ‘process of manufacture or other means.’ ” Id. at 942 (quoting Burgess Battery Co. v. United States, 13 Cust. Ct. 37 (1944)). Customs ultimately ruled that “the waste is the residue from steel slabs used to manufacture something else (rolled coils) rather than an article manufactured.” Id. Plaintiff claims that Customs erred in its determination and argues that, as a factual matter and as a matter of industry terminology, stainless steel scrap is not “waste”, but is an article manufactured or produced within the meaning of § 1313(b). Plaintiff cites to numerous items in the record before the court which support the conclusion that stainless steel scrap is created during the same manufacturing process that produces Plaintiffs primary products. The court accepts this undisputed evidence as established fact for the purpose of the instant motion. Nevertheless, Plaintiff has failed to provide the court with a legal definition of any of the governing statutory and regulatory terms, nor has Plaintiff advanced any legal basis upon which the court can conclude that the industry understanding of the terms at issue should govern. Plaintiff has not cited any judicial or administrative definition of the terms “manufactured”, “produced” or “waste” in a general context, in the drawback context, or in the context of the steel industry. The court is thus called upon to determine whether stainless steel scrap is an “article” “manufactured” or “produced” within the meaning of § 1313(b). The court must also construe the meaning of the term “valuable waste” for purposes of the related regulations and T.D. 81-74. When a word is undefined in a statute, the agency and the reviewing court normally give the undefined term its ordinary meaning. See Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979) (“A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning”). “To assist it in ascertaining the common meaning of a tariff term, the court may rely upon its own understanding of the terms used, and it may consult lexicographic and scientific authorities, dictionaries, and other reliable information sources.” Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 789 (Fed.Cir.1988). Review of these sources, and judicial and administrative interpretations of the terms at issue, reveals a venerable distinction between waste and “manufactured” or “produced” articles, particularly in the tariff context. 2. Definitions of the Terms at Issue The court first looks to dictionary definitions as indicators of the common and popular meaning of the terms at issue. Webster’s Third New International Dictionary (1986) (hereinafter “Webster’s Dictionary”) defines the term “article”, in pertinent part, as “5: a material thing: ITEM, OBJECT <~s of diet> < scarce ~s command high prices>.” Webster’s Dictionary 123. “[I]n a tariff sense, the term ‘articles’ is sufficiently comprehensive to include ... ‘almost every separate substance or material, whether as a member of a class, or as a particular substance or commodity,’ except where the Congress has indicated that the term shall have a narrower signification.” Lussky, White & Coolidge v. United States, 21 C.C.P.A. 201, 202, 1933 WL 1816 (1933) (quoting Junge v. Hedden, 146 U.S. 233, 238, 13 S.Ct. 88, 36 L.Ed. 953 (1892)); see also United States v. Eimer & Amend, 28 C.C.P.A. 10 (1940) (providing a review of other decisions analyzing the use of the term “article” in the tariff statutes). The court must determine whether Congress has indicated a narrower signification by the use of the terms “manufactured” or “produced,” which would distinguish “waste” from such “articles”. Webster’s Dictionary offers the following pertinent definitions of the term “manufactured”: 1Manufacture ... 1: something made from raw materials by hand or by machinery < hemp and tow cloth were familiar household ~s- — V.S. Clark > < imports most ~s used by consumers or needed for internal development— D.L. Cohn > 2a: the process or operation of making wares or other material products by hand or by machinery esp. when carried on systematically with division of labor < families engaged in domestic ~ often lived and worked in one room — J.W. Krutch > < the ~ of furniture > < steel ~> % * * * * * 2Manufacture ... 1: to make (as raw material) into a product suitable for use <the wood ... is manufactured into fine cabinetwork — Amer. Guide Series: Oregon > < ~ iron into steel > 2a: to make from raw materials by hand or by machinery Webster’s Dictionary at 1378. Not surprisingly, Webster’s definition of the term “produce” bears a close resemblance to that of “manufacture”: 8a : to give being, form, or shape to: make often from raw materials: MANUFACTURE < produced 5,002 cars in three years — Amer. Guide Series: Mich. > b to make economically valuable: make or create so as to be available for satisfaction of human wants 9: to cause to accrue: bring in as profit < money at interest ~s an income ~ vi: to bring forth a product or production: bear, make, or yield that which is according to nature or intention: grow, make, or furnish economically valuable products < labored literally day and night to-Vera M. Dean > Id. at 1810. “Waste” has been extensively defined in Webster’s Dictionary, which offers the following pertinent definition: 4a: damaged, defective, or superfluous material produced during or left over from a manufacturing process or industrial operation; material not usable for the ordinary or main purpose of manufacture: as (1) material rejected during a textile manufacturing process and either recovered for reworking (as yarn) or used usu. for wiping dirt and oil from hands and machinery (2): SCRAP Id. at 2580. The courts, and the Customs Service, have had numerous occasions to construe these terms, in varying tariff contexts. “Manufacture implies a change, but every change is not manufacture, and yet every change in an article is the result of treatment, labor, and manipulation. But something more is necessary .... There must be transformation; a new and different article must emerge, having a distinctive name, character, or use.” Anheuser-Busch Brewing Assoc. v. United States, 207 U.S. 556, 562, 28 S.Ct. 204, 52 L.Ed. 336 (1908) (citations and punctuation omitted) (holding that certain corks for bottling beer did not qualify for drawback because they had not been “manufactured” within the United States; “A cork put through the claimant’s process is still a cork”). This seminal definition has been applied not only in the drawback context but in numerous other areas of tariff law. The term “produced” was a later addition to the drawback statute. Some courts have concluded that the added term must represent an attempt to extend the availability of drawback; otherwise, the new term would be mere surplusage, a result the courts have consistently abhorred. See United States v. Int'l Paint Co., 35 C.C.P.A. 87, 91-92, 1948 WL 5030 (1948) (reviewing legislative history); Rolland Freres, Inc. v. United States, 23 C.C.P.A. 81, 86 (1935) (“We are inclined to agree ... that Congress, by the use of the new language in connection with the word ‘produced’, intended to authorize drawback on certain articles which had not been ‘manufactured’ as that term was sometimes technically defined.”). Nevertheless, the courts have not been “disposed to give the provision such a construction as would warrant the allowance of drawback upon every article which had been brought into this country and subsequently exported, merely because some manufacturing effort had been expended thereon.” Rolland Freres, 23 C.C.P.A. at 86. Later decisions have incorporated the question of whether an article is “produced” into the original test of “manufacture”. In the wake of Anheuser-Busch, subsequent decisions have shown the difficulty of “tak[ing] concepts applicable to products such as textiles and applying] them to combinations of liquids or fabrication of steel articles.” Superior Wire v. United States, 11 CIT 608, 615, 669 F.Supp. 472, 479 (1987), aff'd, 867 F.2d 1409 (Fed.Cir.1989). “[Cjourts have been reluctant to lay down specific definitions in this area of the law other than to discuss the particular facts of cases under the particular tariff provisions involved.” Belcrest Linens v. United States, 741 F.2d 1368, 1372 (Fed.Cir.1984). Application of the Anheuser-Busch definition thus has evolved into a highly flexible “name, character or use” test, also known as the “substantial transformation” test, which looks to whether the article in question has been subjected to a process which results in the article having a name, character or use different from that of the imported article. See, e.g., Int'l Paint, 35 C.C.P.A. at 93-94; Nat'l Juice Products, 10 CIT at 58, 628 F.Supp. at 988. A “substantial transformation of the original materials may be found where there is a definite and distinct point at which the identifying characteristics of the starting materials is [sic] lost and an identifiable new and different product can be ascertained. A transitional stage of a material in process, advancing toward a finished product, however, may not be sufficient.” F.F. Zuniga v. United States, 996 F.2d 1203, 1206 (Fed.Cir.1993) (citation omitted). In applying the “name, character or use” test, courts have focused primarily on changes in use or character of the item, turning to various subsidiary tests depending on the situation. Superior Wire, 11 CIT at 614-15, 669 F.Supp. at 478 (listing decisions adopting such subsidiary tests); see also Int’l Paint, 35 C.C.P.A. at 94 (exported merchandise underwent a change of character when the processes at issue fitted the goods for a distinctive use for which the imported merchandise had been wholly unfit). A review of the decisions applying this test to merchandise with similar characteristics to Precision’s merchandise highlights these subsidiary criteria. In Superior Wire, the court considered whether hot-rolled steel wire rod was “substantially transformed” when it was subjected to a cold-drawing process which yielded steel wire. In that process, the rod was drawn through one, two, or sometimes three dies. 11 CIT at 609, 669 F.Supp. at 474. The resulting product was substantially stronger, cleaner, smoother, less springy, less ductile, and cross-sectionally more uniform. Id. Evidence reflected that the cost of setting up such a facility was relatively low. 11 CIT at 610-11, 669 F.Supp. at 475. The process added approximately 15% in value to the product. Id. at 611, 669 F.Supp. at 475. The uses for which the product was suitable did not narrow. Id. at 617, 669 F.Supp. at 480. The goods did not change from “producers’ goods” to “consumers’ goods”. Id. Based on these findings, the court determined that there had been no significant change in the use or character of the imported merchandise. In Ferrostaal Metals Corp. v. United States, 11 CIT 470, 664 F.Supp. 535 (1987), the court considered the country of origin of certain steel sheet which had been annealed and galvanized in New Zealand by a process known as “continuous hot-dip galvanizing” using full hard cold-rolled steel sheet from Japan. The court considered whether the galvanizing and annealing process resulted in a “substantial transformation” of the merchandise. “Although the process affects the distribution of carbon and nitrogen in the [steel] sheet, annealing does not change the actual chemical composition and dimensions of the sheet.” 11 CIT at 475, 664 F.Supp. at 539. The galvanizing process, which was accomplished by dipping the sheet in molten zinc, was “an irreversible process which provides electrochemical protection to the sheet.” Id. The court found that the annealing process added a strength and ductility which “significantly affects the character by dedicating the sheet to uses compatible with the strength and ductility of the steel. A change in the end uses of products ... is itself indicative of a change in the character of the product.” Id. at 476, 664 F.Supp. at 540. The court also found that “the hot-dip galvanizing process is substantial in terms of the value it adds to full hard cold-rolled steel sheet. The evidence showed that the Japanese product is sold for approximately $350 per ton, while the hot-dipped galvanized product is sold for an average price of $550 to $630 per ton.” Id. at 477, 664 F.Supp. at 540. “Testimony at trial overwhelmingly demonstrated that cold-rolled steel is not interchangeable with steel of the type imported, nor are there any significant uses of cold-rolled sheet in place of annealed sheet.” Id. “Such a change in the utility of the product is indicative of a substantial transformation.” Id. at 477, 664 F.Supp. at 541. The court also found that a change in the name of the product, and of its tariff classification, further supported its conclusion that the product had undergone a “substantial transformation”. Id. at 478, 664 F.Supp. at 541. Against the yardstick of the “substantial transformation” test, the court turns to the issue of whether “waste” or “valuable waste” is properly included within the ambit of articles which have been manufactured or produced. Plaintiff contends that there is no basis in law for this distinction, as it appears in 19 C.F.R. § 191.22(a)(2), in T.D. 81-74, and in Customs’ ruling on Plaintiffs protest. Plaintiffs Brief at 25 (“While Congress has seen fit to limit drawback in certain respects Csee 19 U.S.C. § 1313(w)), it has not limited drawback with respect to stainless steel scrap, nor for that purpose scrap metal generally — or even waste. It is a well-settled canon of statutory construction that exceptions are not to be implied, nor can an exception be created by construction.”). As detailed below, the court concludes that Customs’ regulation carving out “waste” from drawback eligibility has emerged not as an “exception” to the drawback statute, but in recognition of the fact that “waste” is not, as a matter of definition, an article “manufactured or produced”, as is necessary to trigger the privileges conferred by § 1313(b). Numerous decisions have discussed this distinction. Two of these have been cited with particular frequency in this context. In Patton v. United States, 159 U.S. 500, 16 S.Ct. 89, 40 L.Ed. 233 (1895), the Supreme Court considered whether certain “wool tops” (wool which had been put through several processes in preparation for spinning) which had been intentionally broken in order to obtain a lower rate of duty in export, was properly classified as “woolen waste”. The Court noted testimony in the record “tending to show that in England merchantable tops, broken up for the purpose of exportation, had acquired the commercial designation of waste, or, more properly, ‘broken top waste.’ ” Id. at 505. The Court considered whether the imported goods were in fact “waste” for tariff purposes, noting that The prominent characteristic running through all the[] definitions is that of refuse, or material that is not susceptible of being used for the ordinary purposes of manufacture. It does not presuppose that the article is absolutely worthless, but that it is unmerchantable, and used for purposes for which merchantable material of the same class is unsuitable. Id. at 503, 16 S.Ct. 89 (emphasis added). The Court also considered the related issue of whether the imported merchandise constituted “manufactures of wool:” Waste, in its ordinary sense, being merely refuse thrown off in the process of converting raw wool into a manufacture of wool, cannot be considered a manufacture simply because it acquires a new designation, and, if it be artificially produced by the breaking up of tops, it is with even less reason entitled to be so considered. Unless natural waste can be treated as a manufacture, artificial waste should not. Id. at 508, 16 S.Ct. 89 (emphasis added). The Court thus plainly recognized a distinction between “waste” and “manufactured articles”. The Court concluded that the imported merchandise was not waste, because it had not actually been “thrown off in the process of manufacture.” Id. at 505,16 S.Ct. 89. The Court also concluded that the merchandise was not “manufactured”: [T]he article in question does not fall within the definition of “manufactures” as laid down by this court in numerous eases. Thus, in U.S. v. Potts, 5 Cranch, 284, 9 U.S. 284, 3 L.Ed. 102, round copper bottoms turned up at the edge, not imported for use in the form in which they were imported, but designed to be worked up into vessels, were held not to be manufactured copper within the intention of the legislature. So, in Hartranft v. Wiegmann, 121 U.S. 609, 7 S.Ct. 1240, 30 L.Ed. 1012, shells cleaned by acid, and then ground on an emery wheel, and some of them afterwards etched by acid, and intended to be sold for ornaments, as shells, were held to be ‘shells,’ and not ‘manufactures of shell.’ The question is fully discussed in Lawrence v. Allen, 48 U.S. 785, 7 How. 785, 12 L.Ed. 914, in which, however, it was held that India rubber shoes made in Brazil, by simply allowing the sap of the India rubber trees to harden upon a form, were manufactured articles, because they were capable of use in that shape as shoes. Indeed, this was the form in which such shoes were at first made. Finally, in Seeberger v. Castro, 153 U.S. 32, 14 S.Ct. 766, 38 L.Ed. 624, tobacco scrap, consisting of clippings from the ends of cigars and pieces broken from tobacco, of which cigars are made in the process of such manufacture, not being fit for use in the condition in which they are imported, were held to be subject to duty as unmanufactured tobacco. This scrap is in the nature of waste, and the case is directly in point. Id. at 509, 16 S.Ct. 89 (citations omitted) (emphasis added). Under this analysis, the determinative question in ascertaining whether an article has been “manufactured” is whether the merchandise at issue is fit for some use or application, either as an ingredient or a finished article, without further processing. The decision in Harley Co. v. United States, 14 Ct. Cust.App. 112, 114-15 (1926), provides further guidance regarding the distinctions between “waste” and articles that have been manufactured or produced: Waste is something rejected as worthless or not needed; surplus or useless stuff; especially the refuse of a manufacturing process or industrial art, as coal dust or gob; tangled spun thread (usually cotton); the refuse of a textile factory; ... broken or spoiled castings for remelting. Since 1883 Congress has recognized the following as wastes: Wool waste, ... cork waste, scrap or refuse rubber, worn out by use, iron and steel fit only for remanufacture.... In the tariff sense, waste is a term which includes manufactured articles which have become useless for the original purpose for which they were made and fit only for remanufacture into something else. It also includes refuse, surplus, and useless stuff resulting from manufacture or from manufacturing processes and commercially unfit, without remanufacture, for the purposes for which the original material was suitable and from which material such refuse, surplus, or unsought residuum was derived. The latter class of waste might be appropriately designated as new waste and includes such things as tangled spun thread, coal dust, broken or spoiled castings fit only for remanufacture. Id. (citations omitted) (emphasis added). See also Barnebey-Cheney Co. v. United States, 61 C.C.P.A. 10, 487 F.2d 553 (Oust. & Pat.App.1973) (concluding that merchandise consisting of spent activated carbon salvaged from canisters of gas masks was in fact “waste”, as it was “fit only for remanufacture”; the record showed that the importer subjected the spent carbon to a purification process to remove the absorbed chemicals, and that the merchandise was not commercially suitable for any application prior to the removal of those chemicals). By contrast, an item “which may be repaired without undue expense and devoted to its original purpose, or which, without remanufacture, has a valuable practical use, is not waste or old junk.” Harley, 14 Ct. Cust.App. at 115. The decision in E.T. Horn Co. v. United States, 14 CIT 790, 752 F.Supp. 476 (1990), aff'd and adopted, 945 F.2d 1540 (Fed.Cir.1991), articulates part of the rationale for the distinction between waste and manufactured articles. In that case, the court considered the classification of certain chemical residues, where the importer claimed that the merchandise at issue should have entered duty free under TSUS item 793.00, “[Wjaste and scrap not specially provided for.” Id. at 790, 752 F.Supp. at 477. Customs had classified the merchandise as “[Mjixtures of two or more organic compounds: ... Other”, under TSUS item 430.20. Id. The residues remained after distillation and production of the intended products of the manufacturing process, and had a recognized market value. The court observed that Customs has classified waste of a chemical nature under [TSUS 793.00], although a notable feature of those substances has been unsuitability for chemical use or purposes in the conditions imported without further processing. A raw material or product usually has been favored under the import laws, while a material or product improved abroad usually has been subject to a higher rate of duty upon entry. Also, it has not been general policy for material from used or spent products to be dutiable at the same rate as new material. Thus, to distinguish between chemical products and chemical waste accords with the traditional approach of tariffs. Id. at 795-96, 752 F.Supp. at 481 (citations omitted) (emphasis added). The court ultimately concluded, however, that the residues possess identifiable chemical properties and ... are traded for those properties. There is little indication of uselessness of the merchandise in the condition imported. On the contrary, it appears that the [residues], like the [intended products of the manufacturing process], function in their natural conditions as chemical intermediates. In other words, the products at issue are useful and are used as is to make desired end products .... That something is a residue of a process does not automatically render the substance waste, entitled to entry duty-free. Changes in technology or demand can and do render what was once waste matter which is sought for its own sake. Id at 796-97, 752 F.Supp. at 482 (citations omitted). Customs has applied these same definitions in numerous decisions. While those decisions have no precedential value for this court, they help to illustrate the proper application of the “substantial transformation” or “name, character or use” test. In C.S.D. 82-96, 16 Cust. B. & Dec. 860 (1982), Customs considered whether drawback was payable on certain substandard semiconductor devices which resulted from the production of standard devices. The substandard devices had the same “form, identity and characteristics” as the standard devices; the only difference was that the former devices were much less reliable and much slower than the latter. 16 Cust. B. & Dec. at 860. Because of this difference, the substandard devices were salable only in a broad secondary market, which exceeded the scrap value of the devices. Id. As a factual matter, however, the importer destroyed the devices in a foreign trade zone, to avoid warranty claims. Id. Customs allowed drawback, concluding that the standard and substandard devices were merely different brands of the same finished product. Id. In C.S.D. 82-109, Customs considered whether tobacco scrap, tobacco stems, and tobacco dust and dirt, all of which were “fit only for remanufacture,” were on the one hand “waste” or “valuable waste”, or were properly included within the definition of “articles”. 16 Cust. B. & Dec. 882 (1982). Under the TSUS provisions at issue, articles produced from merchandise temporarily imported under bond were required to be exported or destroyed, while valuable wastes were permitted to be entered into the country upon payment of the proper duty. See 16 Cust. B. & Dec. at 883. The importer sought to enter the tobacco scrap as valuable waste. Id. _ , Customs dmerentiated between byproducts” and “wastes”. Customs reviewed the use of the terms in the tariff statutes, noting that it is clear that Congress intended different meanings for by-products and waste. For example, the first proviso to section 311, Tariff Act of 1930, as amended (19 U.S.C. 1311), which concerns processing in bonded manufacturing warehouses, allows by-products and waste from cleaning rice to be withdrawn for domestic consumption on payment of duty. The second proviso to that section allows all waste to be destroyed under Customs supervision. Section 313, Tariff Act of 1930, as amended (19 U.S.C. 1313) requires distribution of drawback if more than one article was produced as a result of the use of imported merchandise in a manufacturing process. The courts have construed this latter provision to require distribution of drawback to byproducts, which clearly indicates that the term “article” includes by-products. Id. at 884. Customs then reviewed a number of judicial decisions, pulling from them a variety of characteristics which distinguished waste from byproducts. Waste has “neither the qualities of the starting raw materials or the qualities of an article that is sought or purposely produced.” Id. at 884 (citing Willits v. United States, 11 Ct. Cust.App. 499 (1923)). Waste is “not the product of any manufacturing effort designed to produce it as a primary product or as an equally valuable by-product,” but is a “thrown-off incident of ... production.” Id. at 884-85 (citing Ishimitsu Co. v. United States, 12 Ct. Cust.App. 477 (1925)). If an item is “required to have labor expended on it in order to make it fit for consumption, [the item is] not classifiable as a manufactured article.” Id. at 885 (citing Spalding v. Castro, 153 U.S. 38, 14 S.Ct. 768, 38 L.Ed. 626 (1894)). Byproducts, on the other hand, were characterized as “new articles that were chemically different from the original raw materials and which had specific uses in their own rights,” that were “specifically sought for [their] own value.” Id. Based on these criteria, Customs held that the tobacco scrap was waste rather than a by-product. Id. The court finds that these distinctions help to demarcate the boundary between “waste” and “articles manufactured or produced.” Shortly thereafter, Customs issued C.S.D. 88-5, 17 Cust. B. & Dec. 728 (1982), in which it enumerated six criteria for determining whether a given item was properly characterized as waste or as a byproduct. Noting that “drawback is allowable on exports of by-products but not on exports of valuable waste,” Customs examined: 1. The nature of the material of which the residue is composed. 2. The valué of the residue as compared to the value of the principal product and the raw material. 3. The use to which it is put. 4. Its status under the tariff law, if imported. '5. Whether it is a commodity recognized in commerce. ' 6. Whether it must be subjected to some process to make it saleable. 17 Cust. B. & Dec. at 729. These criteria incorporate many of the considerations that the courts have employed in making determinations in this area. See decisions reviewed swpra. Under these guidelines, Customs determined that the merchandise at issue, rejected tubing, was a by-product-, because the merchandise at issue differed from the principal product only in that it did not meet A.P.I. specifications. Id. at 729. While not useful as premium oil well tubing, the merchandise appeared to have a number of other uses, without any further processing, that were incompatible with classification as waste. Id. Customs applied these criteria in subsequent rulings, providing further elaboration on their meaning. In C.S.D. 84-40,18 Cust. B. & Dec. 934 (1983), Customs considered whether certain steel tubing and casing, which had been entered temporarily free of duty under bond for fabrication and exportation and was subsequently rejected for various abnormalities, was “valuable waste”. Id. at 935. The record showed that repair was not an economically. feasible option, and that the rejected tubing was best remelted, reextruded, and used in the creation of new tubing. Id. at 936. Applying the first criterion, Customs noted that the tubing was no longer suitable for its original purpose, although it was still pipe or tube. Id. at 937. Under the second criterion, the value of the goods was nominal — the rejected article had a scrap value of approximately $15, while the un-flawed article was valued at approximately $450. Id. The merchandise at issue was used only as scrap. Id. No further processing was needed to make the merchandise salable as scrap. Id. Customs concluded that the rejected tubing and casing, “when sold as waste or scrap at scrap prices, is valuable waste.” Id. at 939. Customs distinguished C.S.D. 82-96, supra, in which it had approved drawback on substandard semiconductor devices, by noting that the semiconductor devices had the same identity, characteristics and TSUS classification as the standard devices, while the rejected tubing did not share those elements with the standard counterparts. Id. The definitions set forth above, as expounded upon by numerous decisions, can be summarized to yield the following standards. To prevail on a claim that its merchandise is an article manufactured or produced within the meaning of § 1313(b), a plaintiff must satisfy the “substantial transformation” or “name, character or use” test. The court will look to whether a “new and different article” has emerged— whether the exported merchandise is fitted for a distinctive use for which the imported merchandise was not, or whether it is suitable for a more specialized range of uses than the imported merchandise, or whether it is interchangeable, commercially or otherwise, with the imported merchandise. A transitional product may not be sufficient under this criteria. The court will weigh the cost incurred in subjecting the merchandise to the processes at issue, and will also look for proof regarding the amount and percentage of value added by these processes. The court will consider changes to the character of the merchandise — whether there are changes in the chemical composition of the material or in its physical properties, and whether those changes are irreversible. Finally, the court will consider whether there is a change in the name of the merchandise, and whether there is a change in its tariff classification. No one among these criteria is controlling. On the other hand, the court will also look for proof as to whether the merchandise at issue falls within the definition of “waste”. To this end, the court will consider whether the merchandise is suitable for the ordinary use of the primary product or as a by-product, or whether it is thrown off in the process of manufacture. Is the merchandise purposely produced? Is the merchandise exported for use in that form, or must it be remanufac-tured? “Remanufacture” will mean processing of the good to render it usable as, in essence, a raw material. If, on the other hand, the article may be repaired or further processed at minimal expense into a good which has a practical use, such repairs do not constitute remanufacture. 3. Plaintiff Has Not Met Its Burden Under 19 U.S.C. § 1313(b) and Related Law Subjecting Plaintiffs motion to these standards, the court concludes that Plaintiff has not met its burden on summary judgment. The court has in vain reviewed Plaintiffs submissions for evidence which might prove sufficient to resolve this case. The documentary evidence and depositions are insufficient to demonstrate that the stainless steel scrap is an “article manufactured or produced.” There is some evidence regarding the processes to which the imported merchandise is subjected. The record is devoid, however, of evidence as to whether these processes added value to the exported merchandise — does scrap sell for more or less than “virgin material”? Is scrap resulting from these processes more valuable or sought-after than scrap that results from other processes? Is such scrap fitted for more specific uses than the virgin material? Are the qualities imparted by these processes lost in the remelting process? Plaintiff attempts to distinguish stainless steel scrap and trim from other substances created during the manufacturing process, such as “filter cake” and “swarf’, for which no market exists and for which plaintiff incurs disposal costs. Plaintiffs Brief at 16-17. Plaintiff argues that stainless steel scrap is not waste because it is valuable, citing to expert affidavits of persons knowledgeable in the industry. Id. at 14, 17. Plaintiff contends that only such non-marketable, apparently valueless items as “filter cake” and “swarf” are “waste” within the meaning of the 19 C.F.R. § 191.22(a)(2). Plaintiff implicitly contends that the term “waste” applies only to items for which no market exists — essentially, valueless items. This distinction is not tenable, in light of the legal definition, detailed supra, of the terms “waste” and “article manufactured or produced,” which Plaintiff has ignored. First, the drawback prohibition of 19 C.F.R. 191.22(a)(2) applies not only to mere “waste”, but also to “valuable waste”. Second, under the governing law in this field, there is no basis for a distinction between “waste” and “valuable waste”. The value of an article is only one consideration, and that factor requires a quantitative comparison between the imported article and the exported article, not between the exported article and another article yielded by the process. Plaintiff has failed to provide such an analysis. Plaintiff argues that “Customs has insufficient grounds to support its conclusion that the merchandise at issue is waste.” Plaintiffs Brief at 17. Plaintiffs arguments on this point subject Customs’ ruling to the yardstick of Plaintiffs factual argument, and ignore the legal standards that govern this area of the law. Plaintiffs contention is without merit. Moreover, it is Plaintiff, rather than Customs, that bears the burden of proof here. Plaintiffs arguments based on the classifications of scrap metal under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 (1999) et seq., and the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 (1984) et seq., are equally misplaced. Plaintiff has elected to ignore the extensive body of law in the drawback context, and has relied on authority in wholly unrelated areas of the law. Customs’ regulations and those cited by Plaintiff are promulgated under completely different statutes and hence one cannot be considered binding on the