Archer Daniels Midland Co. v. United States

Slip Op. 08-40

UNITED STATES COURT OF ]NTERNATIONAL TRADE

ARCHER DANIELS M]DLAND
COMPANY,
Plaintiff, Before: WALLACH, Judge
C0urt No.: 05-00592
v.
PUBLIC VERSION
UNITED STATES,
Defendant.

[Plaintiff’ s Motion for Summary Judgment is DEN[ED; Defendant’s Cross-Motion for Sumlnary
Judgment is GRANTED; Plaintiff’ s Response and Cross-Motion for Summary Judgment is
DENIED.]

Dated: April 11, 2008

Ba;rnes, Richardson & Colburn. (Lawrence M. Friedrnan, Willia.tn J. Murnhv and Nicole
Kehoskie Schudel for Plaintiff Archer Daniels Midland Company.

Jeffrey S. Bucholtz, Acting Assistant Attomey General; Barba,ra S. Williarns, Attorney»in-
Charge, International Trade Field Office, Comrnercial Litigation Braneh, Civi1 Divisi0n, U.S.
Depa.rtrnent of Justice (Amy M. Rubin); and Beth C. Brotlnan, Office of Assistant Chief
Counsel, lnternational Trade Litigation, U.S. Custorns and B0rder Protection, of Counsel, for
Defendant United States.

OPINION
Wallach, Judge:
INTRODIUCTION
This matter comes before the court on Plaintiff Archer Danie1s Midland Company’s
(“ADM") Motion for Partial Summary Judgment, Defendant United States’ Cross-Motion for

Surnmary Judg;ment, and P1aintiff ADM’S Resp0nse and Cross-Motion. The United States

Bureau of Customs and Border Protection ("Customs") classified entries of "deodorizer
distillate" in Hannonized Tariff Schedule of the United States ("HTSUS") subheading
3824.90.28 at 7.9% ad valorem. Plaintiff challenges the classification and contends that a 2002
amendment to Heading 3824 renders deodorizer distillate classifiable in Heading 3807 at O.l%
ad valorem, or in the altemative, classifiable in the newly created duty-free provisions of
subheadings 3825.61 or 3825.90. Plaintiff filed this action pursuant to 28 U.S.C. § 2632. The
court has jurisdiction in accordance with 28 U.S.C. § l581(a).

II
BACKGROUND

The subject merchandise is a substance commercially known as "vegetable oil distillate"
or "deodorizer distillate" ("DOD") and categorized under Chemical Services Abstract ("CAS")
Number 68476-80-2. ADM’s Interrogatory Resp. 1111 3, 9. DOD is a residue produced during the
process of refining soybean oil whereby vacuum distillation is utilized to remove undesirable
flavors and odors from an otherwise edible oil. § 11 3. The product is a chemical mixture
composed of 70-80% free fatty acids but also contains sterols and tocopherols and can embody a
number of other materials including tocotrienol, squalene and carotenoids. Ld. 11 8.

Deodorization is the process by which steam strips crude soybean oil from volatile
materials under low atmospheric pressure and high temperature E 11 lO. Physically, DOD is a
translucent material with a brown, red, or yellow hue, which is solid at room temperature. § 11
8. DOD is primarily used for the recovery of tocopherols and phytosterols, both of which are
further used for the production of tocopherol-based vitamin E products, purified phytosterols,

distilled methyl esters, vegetable distilled fatty acids, mixed vegetable fatty acids, and vegetable

oil residue. § 11 1l.

On July 23, 2003, Plaintiff entered DOD through the port of Chicago. Memorandum in
Support of Plaintiff’ s Cross-Motion for Summary Judgment (“Plaintiff’ s Response") at l.
Customs classified the merchandise in subheading 3824.90.28 as:

Chemical products and preparations of the chemical or allied industries (including

those consisting of mixtures of natural products), not elsewhere specified or included:

mixtures containing 5 percent or more by weight of one or more aromatic or modified
aromatic substances: other.
HTSUS 3824.90.28 (2002).1

Customs’ classification was consistent with the decision of this court in Cargill, Inc. v.
United States, 318 F. Supp. 2d 1279 (CIT 2004), although amendments had been made to
Chapter 38 since the importation of the deodorizer distillate at issue in Cargill. Memorandum in
Support of Plaintiff s Motion for Partial Summary judgment ("Plaintiff’ s Motion") at 1 .

ln July 2004 Plaintiff filed a protest with an Application for Further Review contesting
Customs’ classification of DOD in subheading 3824.90.28. Prior to January l, 2002, subheading
3824.90.28 covered:

Prepared binders for foundry molds or cores; chemical products and preparations of

the chemical or allied industries (including those consisting of mixtures of natural

products), not elsewhere specified or included; residual products of the chemical or

allied industries, not elsewhere specified or iocluded: Other.

HTSUS 3824.90.28 (2001) (emphasis aclded); see also Amended Complaint 11 31.

In the amended tariff schedule that went into effect on january l, 2002, the language "residua1

products of the chemical or allied industries, not elsewhere specified or included" was deleted

‘ At oral argument, Plaintiff agreed that DOD contains "5 percent or more by weight of one or more
aromatic or modified aromatic substances.”

from the description for subheading 3824.90.28. Amended Complaint 11 30. At the same time,
Heading 3825 was created. Ld. 11 33. Heading 3825 of the 2002 Harmonized Tariff Schedule

provides for:

Residual products of the chemical or allied iodustries, not elsewhere specified or
included; municipal waste; sewage sludge; other wastes specified in note 6 to this
chapter: . . .

HTSUS Heading 3825 (2002) (emphasis added}.
Plaintiff claimed that DOD would be properly classified in HTSUS 3825.61.00 which covers

“[o]ther wastes from the chemical and allied industries: Mainly containing organic constituents."

HTSUS 3825.61 (2002), see also Amended Complaint 11 18, Plaintiff’ s Motion at l. Iri
Plaintiff s Amended Complaint, it also argues for classification in Heading 3807 as "vegetable
pitch," and in the altemative classification in subheading 3825.90 as "residual products of the
chemical or allied industries" other than the wastes specified in Heading 3825. Amended
Complaint 1111 28, 4l.

On March 10, 2005, Customs issued Ruling HQ 96'7288 in which it rejected Plaintif`f’ s
proposed classification based on a finding that Heading 3825 is reserved for "environmentally
sensitive" or “hazardous" substances and therefore does not apply to DOD. Customs
Headquarters Ruling Letter No. 967288 (March 10, 2005) (“HQ 967288’.’); Arnended Complaint
1111 19-21. Customs determined that DOD is clearly a "by-product" of the chemical and allied
industries, but classifiable in Heading 3824 as a "chemical preparation" and not in Heading 3825
as a "residual product." HQ 967288 at 6. Customs noted that "residual products" for ptu~poses of
Heading 3825 are "tantainount to waste product" and that DOD is not "the unadulterated ‘left-

overs’ of a manufacturing process." Ld.

ln defining the scope of Headings 3824 and 3825, Customs stated that prior to 2002 there
had not been a need to distinguish between "chemical preparations” and "residual products" of
the chemical and allied industries. HQ 967288 at 4. Customs acknowledged that neither tenn is
defined in the HTSUS or the accompanying Explanatory Notes ("ENS") and therefore looked to
the available legislative history for Heading 3825. § ln the absence of House or Senate reports,
Customs reviewed the papers and notes relating to the proposal of Heading 3825 at the 12“‘
session of the Harmonized System Review Sub-Committee and its subsequent adoption by
Presidential Proclamation. § (citing Presidential Proclamation 7515, 66 Fed. Reg. 66,549
(December 18, 2001)). Customs relied on the Sub-Committee’s statements analogizing wastes to
residual products of the chemical or allied industries. § Moreover, Customs stated that the Sub-
Committee, at the suggestion of the U.S., only intended to create subheadings for waste products
that were “( l) environmentally sensitive and whose transfi'ontier movement had to be monitored
and (2) which were important in international trade.” § at 5. Based on this, and on the Sub-

664

Committee’s comment that residual products of the chemical and allied industries’ were in fact
so nearly similar to other wastes that they should be classified in this new heading," §, Customs
concluded that "residual products" for purposes of Heading 3825 refers only to products "that are
environmentally sensitive wastes but can be remediated into a useful product." § Furtherrnore,

Customs noted that the examples listed in the ENs of products classifiable in Heading 3825, see

n.4 infra, resemble hazardous waste products and that the ENs to Heading 3824 indicate that not

all by-products were intended to be moved from Heading 3824.2 §

On November 29, 2005, Plaintiff timely commenced this action seeking reliquidation of
entries of the merchandise in issue and calculation of duties in accordance with Plaintiff‘s
proposed tariff headings. Complaint ‘[l 5. Plaintiff filed a Motion for Partial Summary Judgment
seeking adjudication on the issue of whether Heading 3825 is limited to environmentally
sensitive substances. Defendant cross-moved for summary judgment. Plaintiff responded and
also submitted a cross-motion for summary judgment In September 2006, Plaintiff filed a
motion to amend its statement of material facts. Following an in-court conference, the court
granted Plaintiff s motion and permitted Defendant to file a sur-reply relating to the amended
version of Plaintiff" s statement of material facts.

III
STANDARD OF REVIEW

An entry of summary judgment is appropriate when there are "no genuine issues as to any
material fact and . . . the moving party is entitled to a judgment as a matter of law." USCIT R.
56(0); see also Anderson v. Libertv Lobbv, Inc.. 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed.
2d 202 (1986). In fact, on a motion for summary judgment, the court "may not resolve or try
factual issues." Phone-Mate, Ir1c. v. United Statcs, 12 CIT 575, 577 (1988), a_ff:d, 867 F.2d 1404

(Fed. Cir. 1989) (citing Yamaha Int’l Corp. v. United States, 3 CIT 108, 109 (1982)). Further,

2 The Explanatory Notes to Heading 3824 state, in pertinent part, that:

The chemical products classified here are therefore products whose composition is not
chemically defined, whether they are obtained as by-products of the manufacture of other
substances (this applies, for example, to naphthenic acids) or prepared directly.

EN 33.24(13) (2002).

while a presumption of correctness attaches to Customs’ classification pursuant to 28 U.S.C. §
2639(a)(l), "this presumption ‘is irrelevant where there is no factual dispute between the

parties."’ Bousa, Inc. v. United States. 25 CIT 386, 387 (2001) (citing Rollerblade, Inc. v. United

States, 112 F.3d 481, 484 (Fed Cir. l997)). Here, both parties agree that there are no disputed

issues of material fact, and therefore, the court will review, de novo, the scope and meaning of

the tariff terms at issue, which are purely questions of law. § Totes, Inc. v. United States. 69
F.3d 495, 497 (Fed. Cir. 1995); see also Rollerblade. Inc.. 112 F.3d at 483.
Nor is Customs’ ruling entitled to deference within the parameters of Skidmore v. Swift

§Q, 323 U.S. 134, l40, 65 S. Ct. l6l, 89 L. Ed. 124 (1944). ln Skidmore, the Supreme Court
held that an agency’s deter1nination, while not controlling on the court, is entitled to deference
given the "specialized experience and broader investigations and information” available to the
agency. § at 139; see also United States v. Mead Coro., 533 U.S. 218, 234, 121 S. Ct. 2164, 150
L. Ed. 2d 292 (2001). The amount of respect afforded "will depend upon the thoroughness
evident in its consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it the power to persuade, if lacking power to
control." Skidmore, 323 U.S. at 140. Here, Customs did not use any "specialized expertise" to
inform its finding in Ruling HQ 967288 and therefore needs not be afforded deference.
Customs’ ruling does not have any other characteristics or factors which would give it the power
to persuade Thus, the court has "independent responsibility to decide the legal issue regarding

the proper meaning and scope of the HTSUS terms." Frariklin v. United States. 289 F.3d 753,

757 (Fed. Cir. 2002) (intemal citations omitted).

The court employs a two-step analysis when deciding classification cases: "the first step

concems the proper meaning of the tariff provisions at hand . . . . [T]he second step concems
whether the subject imports properly fall within the scope of the possible headings." Universal
Elecs. lnc. v. United States. 112 F.3d 488, 491 (Fed. Cir. 1997). The General Rules of
Interpretation ("GRI") of the HTSUS and the Additional United States Rules of interpretation
guide the court’s classification of goods imported into the United States. JVC Co. of Am. v.
United States, 234 F.3d 1348, 1352 CFed. Cir. 2000) (citing Carl Zeiss, lnc. v. United States, 195
F.?>d 1375, 1379 (Fed.Cir.1999)). Absent legislative intent to the contrary, HTSUS tenns are
construed according to their common and commercial meanings, which are presumed to be the
same. North Am. Processing Co. v. United States, 236 F.3d 695, 698 (Fed. Cir. 2001). ln
detennining a tariff tenn’s common meaning, the court may rely on its own understanding of the
tenn and may "consult lexicographic and scientific authorities, dictionaries, and other reliable

information sources." Carl Zeiss lnc., 195 F.3d at 1379. The court may also refer to the

Explanatory Notes accompanying a tariff heading, which although not controlling, clarify the
scope of the HTSUS subheadings and offer guidance in their interpretation , 289 F.3d at
758; 1 H.R. Conf. Rep. No. 100-576, 100th Cong., 2d Sess. 549 (1988), reprinted in 1988
U.S.C.C.A.N. 1547, 1582.

IV
ANALYSIS

'l`he issue before the court is whether Customs properly classified deodorizer distillate
under subheading 3824.90.28 notwithstanding the fact that the reference to "residual products" of
the chemical or allied industries was severed from the heading. § HTSUS 3824.90.28 (2002).

Plaintiff proposes that DOD is properly classified under Heading 3807 as "vegetable pitch" or, in

the alternative, under Heading 3825 as "other wastes of the chemical or allied industries mainly
containing organic constituents" (subheading 3825.61) or as "residual products" of the chemical
or allied industries (subheading 3825.90). S§ePlaintiff’ s Response at 6.

A
Classification Under Heading 3807

Heading 3807 is an eo nomine3 provision which provides for:

Wood tar; wood tar oils; wood creosote; wood naphtha; vegetable pitch; brewers’ pitch
and similar preparations based on rosin, resin acids or on vegetable pitch.

HTSUS Heading 3807 (2002).
The Explanatory Notes accompanying Heading 3807 in pertinent part describe “vegetable pitch"
as follows:
(C) Vegetable pitch.

These are residues of the distillation or other treatment of vegetable materials. They
include:

(l) Wood pitch (wood tar pitch), a residue of the distillation of wood tar.

(2) Rosin pitch, a residue of the preparation of rosin spirit and rosin oil by distillation
of rosin.

(3) Sulphate pitch, a residue after the distillation of tall oil, etc.

These pitches are usually blackish-brown, reddish-brown or yellowish-brown. They
generally soften with the heat of the hand. They are used, according to their type, for
caulking ships, waterproof-coating of woven fabrics, impregnating woods, preparing
anti-rust coatings, as binding materials, etc.

EN 33.07(€) (2002).

Plaintiff argues that the "common and commercial meaning" of vegetable pitch includes

3 An eo nomine provision describes goods by name, in contrast to "use" provisions that describe
merchandise by their use. Carl Zeiss lnc., 195 F.3d at 1379.

9

deodorizer distillate. Plaintiff’s Response at 9. Plaintiff relies on the dictionary definition of
"pitch" which states that "pitch, in the chemical-process industries, is the black or brown residue
obtained by distilling coal tar, wood tar, fats, fatty acids, or fatty oi1s." § (citing The New
Encyclopedia Britannica 474 (15th ed. 2002)). Plaintiff analogizes the physical appearance of
DOD and its uses to those of pitch and claims that the merchandise at issue falls within the
"commercial understanding" of vegetable pitch. § at 10. In addition, Plaintiff provides
affidavits that attest that DOD mimics the physical description provided in the ENs which
characterize vegetable pitch as ‘”blackish-brown, reddish-brown or yellowish-brown” and a
substance that "generally soften with the heat of the hand." § at ll (citing Furcich Aff. 11 11;
Collins Aff. 11 5; Hart Aff. 11 7).

Plaintiff also argues that the list of uses provided in the ENs is not exhaustive by the use
of the term "etc.," but that vegetable pitch has a "number of modern industrial uses," and that
DOD is used regularly as a substitute for "tall oil pitch" which is specifically covered by Heading
3807. § at 14. With respect to the uses listed in the ENs, Plaintiff argues that fatty acids, such
as methyl esters, which are extracted from DOD are further refined and used in the preparation of
anti-rust coatings, a use which is listed in the ENs. § at 15. Whereas DOD was previously
classified under Heading 3824, Plaintiff argues that classification in Heading 3807 is proper
because the court is required to classify the product in the tariff heading that either names the
product or its specific use. § at 16 (citing GRl 3(a)).

Defendant argues that DOD does not fall under Heading 3807 because "pitch" generally
is defined as a dark sticky substance derived from various wood tars. Memorandum in Support of

Cross-Motion for Summary ]“udgment ("Defendant’s Cross-Motion") at 15-16. Defendant also

10

asserts that while Heading 3807 is an eo nomine and not a “use” provision, each of the
definitions listed in the ENs describes various uses of pitch, and none of these correspond to the
uses for DOD identified by Plaintiff in its interrogatory responses. § at 16. Defendant points
out that the proposition that "merchandise must be classified in its condition as imported has
been a basic tenet of customs law.” Defendant’s Reply to Plaintiff" s Response to Defendant’s
Motion for Summary .Tudgment and Response to Plaintif`f" s Cross-Motion for Summary
Judgment ("Defendant’s Response") at 10 n.12. Moreover, Defendant contends that it does not
appear from any of Defendant’s research that DOD is ever referred to commercially as
"vegetable pitch.” Defendant’s Cross-Motion at 16.

The "Common and Commercial" Meaning of "Vegetable Pitch" Does Not Encompass
Deodorizer Distillate

An eo nomine provision describes goods according to their "common and commercial
meaning" and includes, without terms of limitation, all forms of the article. SLe§g_., Chevron
Chem. Co. v. United States, 23 CIT 500, 505 (1999). "When a tariff term is not defined in either
the HTSUS or its legislative history, the tenn’s correct meaning is presumed to be its common
meaning in the absence of evidence to the contrary." Timber Prods. Co. v. United States. 417
F.3d 1198, 1201 (Fed. Cir. 2005) (citing Rohm & Haas Co. v. United States, 727 F.2d 1095,
1097 (Fed. Cir. 1984)). A party who argues that a tariff term should not be given its common
meaning "must prove that ‘there is a different commercial meaning in existence which is dehnite,
unifonn, and general throughout the trade."’ Timber Prods. Co. v. United States, 515 F.3d 1213,
1219 (Fed. Cir. 2008) (quoting Moscahlades Bros. v. United States, 42 CCPA 78, 82 (1954)). To

the extent that Plaintiff claims the commercial meaning of "pitch" is something other than the

11

common meaning, the question for the court is whether ADM has overcome this presumption.
There is little judicial guidance on the “common and commercial meaning" of "vegetable
pitch" for purposes of Heading 3807. Dictionaries do not define the term "vegetable pitch," but
give meaning to the tenn "pitch." The dictionary definition of "pitch" is akin to the language
found in the ENs to Heading 3807. For exa.mple, The American Heritage Dictionary defines
pitch as “[a]ny of various thick, dark, sticky substances obtained from the distillation residue of
coal tar, wood tar, or petroleum and used for waterproofing, roofing, caulking, and paving.” §
American Heritage Dictionary 1380 (3rd ed. 1996). Other dictionaries contain similar
descriptions, describing pitch as:
A tenacious resinous substance, of a black or dark brown colour, hard when cold,
becoming a thick viscid semi-liquid when heated; obtained as a residuum from the
boiling or distillation of tar, also from the distillation of turpentine; used to stop the

seams of ships after caulking, to protect wood from moisture, and for other purposes

The Oxford English Dictionary 915 (2d ed. 1989); or

[A] soft substance that is obtained by distilling fats, fatty oils, or fatty acids (as from

the manufacture of soap or candles), contains polymers and decomposition products,

and is used chiefly in varnishes and paints and in floor coverings - called also fatty

acid pitch, stearin pitch.

Webster’s Third New International Dictionary 1724 (3rd ed. 1986).

"Vegetable pitch," is simply "pitch" but derived from a vegetable base, such as soy, or as
described in the ENs, substances that are “residues of the distillation or other treatment of
vegetable materials." EN 38.07(€) (2002). The common uses for "pitch" are, both according to
dictionary definitions and the Explanatory Notes, caulking, waterproofing and the like.

For purposes of classifying DOD, it is apparent that the substance also is a residue of the

distillation of vegetable materials and that DOD shares certain characteristics with various

12

pitches. For example, Plaintiff has fiimished affidavits that attest to the physical characteristics
of DOD as a yellowish-brown to reddish-brown substance which is viscous at room temperature
or solid at lower temperatures and softens with the warmth of a hand, traits common to various
pitches described both in dictionary definitions and in the ENs. §_;e_e Hart Aff. 11 7; Collins Aff.
1111 13-14. While the Explanatory Notes are not exhaustive when listing examples of vegetable
pitch, DOD is not wood pitch, rosin pitch or sulphate pitch, as listed in the ENs. _S_Y EN
38.07(C) (2002). ln fact, there is little similarity between vegetable pitch and DOD other than
the fact that both are sticky brown substances that derive from a distillation process.

Moreover, the uses for "pitch" listed in dictionary definitions and in the Explanatory
Notes do not comport with any of the applications for which Plaintiff uses DOD or for which
DOD can be used, Plaintiff has submitted documentation to suggest that it primarily uses DOD
for the recovery of tocopherols and phytosterols which are used in vitamin-E products in the
pharmaceutical industry, in dietary supplements and as food additives. ADM lnterrogatory
Responses at 11 ll. Other uses include purified phytosterols, distilled methyl esters, mixed
vegetable fatty acids and vegetable oil residue. § None of these uses resemble caulking,
waterproofing, or other commonly described "pitch" uses.

This fact, in conjunction with prevailing case law requiring that goods must be classified
in the condition in which they are imported, contradict Plaintiff’ s proposed classification.
Worthington v. Robbins, 139 U.S. 337, 34l, 11 S. Ct. 581, 35 L. Ed. 181 (1891) ("The dutiable
classification of articles imported must be ascertained by an examination of the imported article
itself`, in the condition in which it is imported."); L§_Q Mita Copystar Am. v. United States, 21

F.3d 1079, 1082 (Fed. Cir. 1994) (citing United States v. Citroen, 223 U.S. 407, 414-15, 56 L.

13

Ed. 486, 32 S. Ct. 259 (19l l)) ("It is well settled law that merchandise is classified according to
its condition when imported."). While Plaintiff does not dispute that a product must be classified
in its imported form, Plaintiff asserted at oral argument that there is little evidence of things
specifically described as "pitch” in the Explanatory Notes being used to do anything in their
imported fonn. Instead, Plaintiff attempts to establish a link between DOD usage and common
"pitch" uses, stating that the production of fatty acids is used in the manufacture of printing ink,
paints, and varnishes, which in turn are used in anti-rust coatings. Eig;, Plaintiff’ s Response

at 14-15; see also Hart Aff. 11 18. Because products must be classified "as imported," this link is

insufficient.

Furthermore, there is no indication from Plaintiff’s submitted materials, dictionary
definitions or any other readily available information that DOD is commercially or commonly
known, sold or traded as "vegetable pitch." In fact, in Plaintiff’s own words, "the residue of
deodorization is a complex mixture of chemicals known commercially as deodorizer distillate."
Mayfield Aff`. 11 12; j Collins Aff`. 11 5. Plaintiff has not successfully demonstrated that
deodorizer distillate falls within the "common or commercial" meaning of vegetable pitch for
purposes of HTSUS Heading 3807 or in the altemative, that a different commercial meaning of
the substance exists which is "definite, uniform, and general throughout the trade" within the
meaning of Timber Prods. Co., 515 F.3d at 1219.

B
Classification lLider Heading 3825

On January 1, 2002, Chapter 38 was amended by Presidential Proclarnation and Heading

3825 was created. Presidential Proclamation 7515, 66 Fed. Reg. 66,549 (December 18, 2001).

14

The language of Heading 3825 provides for:
Residual products of the chemical or allied industries, not elsewhere specified or
included; municipal waste; sewage sludge; other wastes specified in note 6 to this
chapter.

HTSUS Heading 3825 (2002).

The two subheadings at issue, 3825.61 and 3825.90, refer respectively to "Other wastes from the

chemical or allied industries: Mainly containing organic constituents" and "Residual products . .:

Other." HTSUS 3825.61, 3825.90 (2002). The Explanatory Notes accompanying Heading 3825
list five specific substances pertaining to residual products. These are (1) alkaline iron oxide; (2)

residues from the manufacture of antibiotics; (3) ammoniacal gas liquors; (4) spent oxide;‘l and

4 (A) RES[DUAL PRODUCTS OF THE CHEMICAL OR ALLIED INDUSTRIES, NOT

ELSEWHERE SPECIFlED OR INCLUDED

(1) Alkaline iron oxide for the purification of gas (in particular, coal-gas) containing impure ferric
oxide, obtained as a by-product from one of the processes of the extraction of alunn'nium from bauxite.
These by-products also contain sodium carbonate, silica, etc.

(2) Residues from the manufacture of antibiotics (called "cakes"), with a very low antibiotic content,
suitable for use for the preparation of compound animal feeds.

(3) Ammoniacal gas liquors, produced as an aqueous portion settling out from the crude coal tar
condensed from coal gas, and also by the absorption of ammonia in the waters used for washing coal.
They are usually concentrated before transportation They are brownish liquids and arc used for the

manufacture of ammonium salts (particularly ammonium sulphate) and purified and concentrated
aqueous solutions of ammonia gas.

(4) Spent oxide. After the water-extraction of the greater part of its ammonia content, coal gas is
chemically purified by passing it through a mass usually composed of bog iron ore or of hydrated
iron(lll)oxide, sawdust and calcium sulphate. This mass removes from the gas certain impurities
(hydrogen su1phide, hydrocyanic acid, etc.). When spent, it contains a rnixture of sulphur, Prussian
blue, a small quantity of ammonium salts and other substances, and is known as spent oxide. lt is
usually in the form of powder or granules, greenish to brownish in colour, with a disagreeablc 0d0ur,

and is mainly used as a source of sulphur and cyanides (_particularly Prussian blue) and as a fertiliser or
an insecticide.

EN 3s.25(A)(1)-(4) (2002).

15

(5) residues from the processing of power plant combustion off-gases.$ EN 38.25(A)(l)-(4)
(2002); EN 38.25(A)(5) (2007).

Note 6 to Chapter 38 which pertains to "other wastes" lists these as: (1) clinical wastes;
(2) waste organic solvents; (3) wastes of metal pickling liquors; and (4) other wastes from

chemical or allied industries. EN 38.25(D)(1)-(4) (2002).6 Neither the HTSUS nor the

5 The following was added in 2007:

(5) Residues from the processing of power plant combustion off-gases by so called limestone gypsum
flue gas desulphurisation (LG FGD). These residues are solid or in the form of a slurry and can be
further processed and used as a substitute for natural gypsum in plasterboard manufacture. However,
purified calcium sulphate isolated from these residues, is excluded (heading 28.33).

EN 33.25(.4)(5) (2007).

6 (D) OTHER WASTES SPECIFIED IN NOTE 6 TO THIS CHAPTER

The heading also covers a wide variety of other wastes specified in Note (6) to this Chapter. They
include:

(1) Clinical waste which is contaminated waste arising from medical research, diagnosis, treatment
orother medical, surgical, dental or veterinary procedures. Such waste often contains pathogens,
pharmaceutical substances and body fluids and requires special disposal procedures (e.g., soiled
dressings, used gloves and used syringes).

(2) Waste organic solvents generally derived from cleaning and washing processes and containing
mainly organic solvents, not fit for further use as presented as primary products, whether or not
intended for recovery of the solvents.

Wastes containing mainly petroleum oils or oils obtained from bituminous minerals are excluded
(heading 27.10).

(3) Wastes of metal pickling liquors, hydraulic fluids, brake fluids and anti-freezing fluids not fit for
further use as presented as primary products. They are generally used for recovery of the primary
products.

However, the heading excludes ash and residues from waste of metal pickling liquors of a kind used for
the recovery of metals or metal compounds (heading 26.20) and wastes of hydraulic fluids and brake

fluids containing mainly petroleum oils or oils obtained from bituminous minerals (heading 27.10).

(4) Other wastes from chemical or allied industries.

16

Explanatory Notes define the tenns "residual products" or "other wastes from the chemical or
allied industries."

Plaintiff argues that DOD is properly classified in Heading 3825 because the relevant
language under which DOD had previously been classified was moved to Heading 3825 along
with its accompanying Explanatory Notes. Plaintiff’s Motion at l, 12. Plaintiff contends that
Heading 3825’5 applicability is not limited to environmentally sensitive products and that DOD
qualifies as "waste” because it is a residual product of the chemical or allied industries. l_d_.;
Plaintiff’s Response at 28. Plaintiff contends that the legislative history upon which Customs
relied in its denial of Plaintiff" s protest is flawed because record discussions and negotiations of
the World Customs Organization ("WCO") Sub-Committee may not be used for interpretative
guidance of the HTSUS, and, that any such limitation would be arbitrary absent explicit guidance
to irnporters. Plaintiff s Brief at l5. Indeed, Plaintiff points out that certain non-hazardous
wastes, such as household and road wastes are included under the definition of “municipal
waste" in Note 4 to Chapter 38, and certain toxic wastes are precluded by Note 6 to Chapter 38,
negating the proposition that all items classified under Heading 3825 must be environmentally
sensitive. § at 6-7.

Defendant’s argument parallels Customs’ interpretation of the scope of the tariff term,
and implies a limitation on the applicability of Heading 3825 to environmentally sensitive or
hazardous substances. Defendant’s Cross-Motion at 20 (citing Ex. E). While acknowledging that
the legislative history in question is not legally binding, Defendant’s argument relies exclusively

on conclusions and recommendations formulated by the Harmonized System Review Sub-

EN 38.25(1)) (2002).

17

Committee concerning the scope of Heading 3825. l_c_L Defendant argues the absence of any
other legislative history and the express agreement by the Sub-Committee that the provision
covers only environmentally sensitive waste products, is sufficient to support its position. lg;
Defendant’s Response at l3. Defendant suggests that determining whether a substance is
environmentally sensitive should be done on a case-by-case basis by an inquiry into whether its
"disposal, treatment and transport is controlled to protect the environment." Defendant’s
Response at 13-14.
1
Heading 3825 is not Limited to "Environmentally Seositive"
or "Hazardous" Substances
GRI l states that “classification shall be determined according to the terms of the

headings and any relative section or chapter notes. . ." GRI 1. The language of Heading 3825 and
the accompanying Explanatory Notes do not impose an express limitation on the heading to
include only environmentally sensitive or hazardous substances. Plaintiff correctly states that the
appropriate legislative history on which this court must rely for interpretive guidance does not
impose an environmental limitation on Heading 3825. See, e.g., Plaintiff’s Motion at ll; §§

EM lndus. v. United States, 22 CIT l56, 163 (1999) (noting that the WCO’s official

interpretation of the HTSUS are the Explanatory Notes); Lonza lnc. v. United States, 46 F.Bd

1098, ll09 (Fed. Cir. 1995). In fact, the International Trade Commission (“ITC") is obligated by
law to keep the HTSUS under continuous review and recommend modifications to the President
on an ongoing basis. 19 U.S.C. § 3005(a)-(c)). The I'I`C may take into account decisions issued
by the WCO, the WCO’s Harmonized System Committee, and U.S. Customs in making their

recommendation See, e.g., Proposed Modification to the Harmonized Tariff Schedule of the

18

United States, Investigation No. 1205~5 (Final), Pub. 3430 at 5 (.lune 2001).

Here, neither the reports detailing the modification to Chapter 38 nor Presidential
Proclamation 7515, contain explicit language that limits Heading 3825 to environmentally
sensitive materials. § 66 Fed. Reg. 66,549. Indeed, as Plaintiff points out, "such a major
qualification" would most likely warrant a notice and comment period pursuant to 19 U.S.C. §

3005(b). §_e_e_ Plaintiff’ s Motion at 12. Plaintiff cites to Cummins Inc. v. United States, 454 F.3d

1361 (Fed. Cir. 2006) for the proposition that a WCO opinion may at most be entitled to
"respectf`ul consideration," but the court, according to controlling case law, may consult any
number of sources to inform its decision concerning the scope of a tariff term, absent

unambiguous statutory language and legislative history to the contrary. See, e.g., Carl Zeiss Inc.,

195 F.3d at 1379 (Fed. Cir. 1999). Accordingly, the court may look to interpretive guidance
where found.

ln this instance, it seems clear from the available information that the intent of the
Harmonized System Review Sub~committee to the Committee may have been to limit the
applicability of Heading 3825 to environmentally sensitive products, or waste products.
However, in the formulation and adoption of the provision by the U.S., any such qualification
was not adopted. First, it would have been logical to include any such qualification in the
statutory language of the HTSUS or, at rninimum, in the Explanatory Notes. Second, imposing
such a limitation is likely to cause confusion for importers because no objective standards have
been set conceming what for example, qualifies as an "environmentally sensitive" or
"hazardous” substance for purposes of Heading 3825. Third, no agency was designated to

provide any such guidelines, nor is it obvious that all substances detailed in the Explanatory

19

Notes are necessarily environmentally sensitive.? Indeed, in an attempt to define what constitutes
"environmentally sensitive materials," the government cites to a state sanitation code.
Defendant’s Response at 13. Such haphazard and varying definitions do not provide adequate
guidance to commercial importers of goods seeking to classify chemically complex substances
and waste products in Heading 3825, nor is it sufficient that individual substances in the ENs are
already regulated the U.S. Enviromnental Protection Agency ("EPA"), when some are not.s

Consequently the scope of Heading 3825 is not limited to substances and products that
are environmentally sensitive or hazardous. Congress may wish to amend the provision if it was
indeed intended to be limited in such a fashion. However, Federal courts, except in highly
unusual circumstances, must decline "to act where Congress has not." Lypteg, lnc. v. United
l, 976 F.2d 693, 697 (Fed. Cir. 1992) (citing Denkler v. United States, 782 F.2d 1003, 1008
(Fed. Cir. 1986) ("Should Congress wish to extend the [statutory scope], it knows how to do
so."). lt is not a court’s role to read in legislative intent where none is found, or attribute

meaning to HTSUS provisions that would result in arbitrary and unpredictable results.

7 For example, "municipal waste" is defined in the ENs to Heading 3825 as "waste of a kind collected
from households, hotels, restaurants, hospitals, shops, offices, etc. . . ." EN 38.25(B) (2002). The
Explanatory Notes elaborate further on the definition of "municipal waste," noting that such waste
"generally contains a large variety of materials such as plastics, rubber, wood, paper, textiles . . . and other
damaged or discarded articles." The designation of such items as "environmentally sensitive" or
"hazardous” is within the discretion of local municipalities; there is no uniform federal standard
designating municipal waste as environmentally sensitive.

8 "Sewage sludge," as identified in the ENs to Heading 3825(C), is covered by specific EPA regulations.
Other substances are not. See EN 38.25(C) (2002).

20

2
Deodorizer Distillate is Not Properly Classified in Subheading 3825.61 as "Waste"

Plaintiff’ s chief argument for classifying DOD in subheading 3825.61 is that DOD
qualifies as a "waste product" under controlling case law. Plaintiff’s Motion at 9 (citing
Webster’s Third New Intemational Dictiongy 1931-32, 2580 (3rd ed. 2002); Plaintiff’ s
Response at 26-28. Absent a clear definition of "waste" in the HTSUS or the ENs, Plaintiff
relies on the court’s definition of "waste" in E.T. Hom Co. v. United States, 945 F.2d 1540, 1543
(Fed. Cir. 1991). Plaintiff’s Response at 26 (citing E.T. Hom Co., 945 F.2d at 1543).

There the court defined "waste” as "manufactured articles which have become useless for
their original purpose . . . and fit only for remanufacture into something else." Lc_l_. Plaintiff also
cites to Precision Specialty Metals v. United States, 24 CIT 1016, 1037 (2000) to argue that the
court defined waste by a threshold question of whether the merchandise was “pu.rposely
produced" or required “re-manufacture" prior to exportation Ld. at 27. Plaintiff notes that oil
refineries are "not in business to produce deodorizer distillate for its tocopherol or any other
content," and that its relative value, as compared to the primary products derived from soybeans
(soybean meal and crude soybean oil), is insignificant. § at 5. lr1 fact, Plaintiff characterizes its
production of DOD "a reasonable cost recovery effort, akin to recycling spent material." itt at 6.

Defendant argues that DOD carmot be considered “waste” because it is a "purposely

sought by-product" of soybean oil production which is "manipulated to maximize the tocopherol

level." Defendant’s Cross-Motion at 24; see also Defendant’s Response at 17. Defendant
challenges Plaintif`f’ s characterization of DOD under E.T. Hom Co., arguing that DOD is not a

manufactured artic1e, and that DOD, albeit a residue of soybean oil manufacturing, is a product in

21

its own right which "has an actual use and does not become ‘useless’ even if that use is not
exploited." Defendant’s Response at 19.

"Waste" is a broad term which is for example defined as "damaged, defective, or
superfluous material produced during the or left over from a manufacturing process or industrial
operation; material not usable for the ordinary and main purpose of manufacture.” Webster’s
Third New lntemational Diction@; 2580 (3rd ed. 2002). This comports with the court’s
definition of "waste" in E.T. Hom as a "useless" product. E.T. Hom, 945 F.2d at 1543.

Applying E.T. Hom here, Plaintiff fails to demonstrate that DOD is "manufactured", and
that despite the multiple applications for which DOD is used the product is "useless" and has to
undergo "re-manufacturing" in order to become usable. As the court said, "[because] 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." I_d. \Vhereas Plaintiff claims that DOD is of little fiscal value as
compared with the main oil products it distills, the mere fact that Plaintiff continues to extract
DOD for sale is indicative that it is purposely sought, and not merely a waste product "useless for
[its] original purpose." Ld. Moreover, whether a substance is classifiable as "waste" is not linked
to the financial worth of the product. Although it is obvious that DOD is an invariable by-
product of soybean distillation, the argument that DOD is not "specifically sought" is refuted by
Plaintiff’s own admission that "[t]he market demands for vitamin E and other by-products
obtained from DOD determines whether ADM will purchase and import DOD from its overseas
suppliers." (Hart Aff. ‘[I 12). This statement is indicative that Plaintiff not only "comes upon"

DOD as a residue of oil distillation, but that DOD is purchased and imported in its own right for

22

a specific and unrelated purpose. Accordingly, the court rejects Plaintiff’ s proposed
classification of DOD in subheading 3825.61.00.
3
Deodorizer Distillate is Not Properly Classified under Subheading 3825.90
as a "Residual Product"

hi the altemative, Plaintiff argues that DOD is classifiable as a "residual product" or "by-
product" of the manufacture of soybean oil and that the substance is properly classified under
subheading 3825.90, Plaintif`f’ s Motion at 9 (citing Webster’s Third New international
Diction@ 1931-32, 2580 (3’°' ed. 2002)); Plaintiff’ s Response at 28-29. Plaintiff concedes that
the tenn "residual products" is not defined in the HTSUS or the ENs to any relevant section, but
advocates that the tenns are best construed by their "plain, unqualified meanings." Plaintiff’s
Motion at 12. In addition, Plaintiff asserts that DOD is properly classified in subheading 3825.90
because it is a "basket provision" which was not intended to be limited to the substances listed in
the ENs. Plaintiff" s Response at 29.

Defendant argues that the Explanatory Notes limit the scope of subheading 3825.90 to
encompass only the residual products listed and therefore precludes classification of DOD in this
provision Defendant’s Cross-Motion at 26-27; Defendant’s Response at 23. Defendant contends
that no language in the subheading indicates that the provision be interpreted as open-ended, and
that the specific addition of another substance in 2007, illustrates this. Defendant’s Cross-Motion

at 26-27.
The question is whether "residual products" under Heading 3825 encompasses DOD.
Dictionary definitions speak to "residual products" as a type of “by-products," which currently

are also covered by Heading 3824. §§ EN 38.24(B); see also discussion Section IV(C) infra. in

23

Customs’ ruling, it held that "residual products" for purposes of Heading 3825 are "tantamount
to waste products," and therefore not inclusive of DOD. HQ 967288 at 5. According to
dictionary definitions and the court’s articulation in C;arg_ill, the tenns "residual products" and
“by-products” are often used interchangeably. § C;ar@, 318 F. Supp. 2d at 1290. Therefore
classification of DOD in subheading 3825.90 does not turn on whether the court finds that DOD
is a "residual product" or a “by-product." The proper inquiry is whether subheading 3825.90 is a
basket provision, and whether the subheading is limited to the substances listed in the
accompanying Explanatory Notes.

The Explanatory Notes to subheading 3825.90 list four specific substances under
"residual products of the chemical or allied industries," namely alkaline iron oxide, residues from
the manufacture of antibiotics, ammoniacal gas liquors and spent oxide, to which a fifth was
added in 2007. EN 38.25 (2007). While recognizing that the Explanatory Notes were only meant
as a guide in defining HTSUS tariff terrns, there is no indication that other residual products were
meant to be included in this provision. _S__e_e Bausch & Lomb, 21 CIT 166, 174, 957 F. Supp. 28l,
288 (1997) ("[the Explanatory Notes are] generally indicative of proper interpretation of the
various provisions of the Convention . . . ."). Whereas subheading 3825.90 mimics the language
of a "basket provision"g by containing the language "not elsewhere specified or included" and
"other," Plaintiff’s argument that subheading 3825.90 is a basket provision is not persuasive in

light of the limited nature of the language in the Explanatory Notes. The ENs do not contain any

9 "Basket or residual provisions of HTSUS Headings . . . are intended as a broad catch-all to encompass
the classification of articles for which there is not a more specifically applicable subheading." Rollerblade
Inc. v. United States, 282 F.3d l349, 1354 (internal citations omittcd).

24

language indicating that other substances may be included, as is its function as a basket provision
for the merchandise at issue largely negated by the existence of Heading 3824, Heading 3824
specifically provides for chemical mixtures akin to DOD and the ENs explicitly encompass by-
products of an unspecified chemical composition. Indeed, the addition of a fifth substance in the
2007 version of the HTSUS, again without the use of tenns such as "etc." or other language
indicative that the list is inclusive of other, urmamed substances, suggests that the subheading
was intended to be limited only to the listed substances. Accordingly, DOD is not properly
classified as a residual product under subheading 3825.90,
C
Classificatioo Under Subheadiog 3824.90.28 is Proger Because DOD is a "Chemical
Preparatiol_i" Obtail_ied as g%v-Procl_tict Whose Composition is Not Chemicaily Defined

Customs classified DOD, entered by Plaintiff, in Heading 3824, subheading 3824.90.28.
Subheading 3824.90.28, after its amendment on January l, 2002, provides for:

Prepared binders for foundry molds or cores; chemical products and preparations of

the chemical or allied industries (including those consisting of mixtures of natural

products), not elsewhere specified or included: Mixtures containing 5 percent or

more by weight of one or more aromatic or modified aromatic substances: Other.
HTSUS 3824.90.28. (2002).

The Explanatory Notes to Heading 3824 provide in pertinent part:

(B) CHEMICAL PRODUCTS AND CHEMICAL OR OTHER PREPARATIONS

The chemical products classified here are therefore products whose composition is
not chemically defined, whether they are obtained as by-products of the
manufacture of other substances (this applies, for example, to naphthenic acids) or
prepared directly.

EN 33.24(13) (2002).

25

Customs’ classification was consistent with this court’s decision in C§argil_l, 318 F. Supp.
2d 1279 (CIT 2004), although the language of Heading 3824 in effect at the time the
merchandise in C_argQ was entered included a provision for "residual products of the chemical or
allied industries." Lgi§, 318 F. Supp. 2d at l282. In C§arg§ the court did not need to
distinguish between “chemical products and preparations" and "residual products of the chemical
or allied industries," but held that classification in subheading 3824.90.28 was proper because
"deodorizer distillate is undisputedly a by-product of a chemical or allied industry." § at 1290.
Recognizing that the @il_l court was not faced with the issue of whether DOD was best
classified as a "by-product" or "residual" product, Customs in its ruling found that the
merchandise is more aptly described as a "chemical preparation" in Heading 3824 than a
"residua1 product" in Heading 3825, although it conceded that neither were defined in the
HTSUS or the accompanying ENs. HQ 967288 at 4. Customs found that eliminating “residual
products" from Heading 3824 did not indicate an intent to preclude by-products from
classification in Heading 3824. § at 5. lndeed, Customs points to the ENs to Heading 3824
which specifically provide for "chemical products . . . obtained as by-products from the
manufacture of other substances," and the list provided in the Explanatory Notes in which
naphthenic acids are listed as "by-products of the refining of certain petroleum oils and of certain
oils obtained from bituminous minerals." § (citing EN 38.24(B)(1) (2002)). Customs also
offered the dictionary definition of the term "preparation" as "a substance . . . prepared for a
specific purpose." § (quoting Webster’s I[ New College Dictionary 1789 (3rd ed. 1991)).

Plaintiff argues that DOD is not classifiable in Heading 3824, because it is better defined

as a "waste" or "residual product" in Heading 3825. Plaintiff’s Motion at 22. Plaintiffref`utes

26

Defendant’s distinction between Heading 3824 and 3825 which implies that by-products may be
commercially valuable and residual products may not, citing examples of named substances in
Heading 3825 that are both valuable and further manufactured substances. § at 22-23.
Additionally, Plaintiff contends that DOD is of lessened value in light of regulations that require
manufacturers to leave higher levels of tocopherol in the edible oil, but that the substance is an
unavoidable residue resulting from soybean distillation. § at 23-24.1° Plaintiff argues that the
real distinction between Heading 3824 and 3825 tums on whether the "merchandise is useful in
its condition as generated in the production of something e1se." § at 24. Plaintiff notes that
napthenic acid appears to have an immediate practical application, whereas DOD is prepared
from oil residue via the process of steam stripping, and that tocopherols are then further extracted
for the use in vitamin-E products. § at 24-25.

Defendant argues that Customs properly classified DOD under Heading 3824, its
reasoning mirroring that of Customs. Defendant’s Cross-Motion at 18. ln response to Plaintiff’s
attempt to distinguish the two headings at issue, Defendant argues that the distinction is not
properly illustrated by napthenic acid, as this substance also requires further manufacturing and
therefore disproves Plaintiff’s theory. § at 25. Moreover, Defendant argues that the focus of the
court’s enquiry must be whether the substance qualifies as a by-product, as opposed to a waste
product. §

Classifying merchandise under a "basket" provision is only appropriate when no other

tariff terms cover the product more specifically. EM lr1dus. lnc., 22 CIT at 165 (1998) ("basket"

or "residua " provisions are intended as broad catch-all tariff tenns for which "there [are] no

w At oral argument, Defendant indicated that it does not dispute this characterization

27

more specifically applicable subheadings."). Basket provisions are generally only used where

other applicable provisions have been excluded. § Rollerblade Inc., 282 F.3d at 1354.

Deodorizer distillate is properly classifiable as:

Chemical products and preparations of the chemical or allied industries (including

those consisting of mixtures of natural products), not elsewhere specified or included:

Mixtures containing 5 percent or more by weight of one or more aromatic or

modified aromatic substances: Other.
HTSUS 3824.90.28.
The Explanatory Notes to Heading 3824 define such products as those "whose composition is not
chemically defined, whether they are obtained as by-products of the manufacture of other
substances." EN 38.24. Plaintiff submitted affidavits that attest to the fact that "[d]eodorizer
distillate is a complex mixture of approximately 10% sterols and steryl esters, and approximately
10% tocopherols (collectively ‘aromatic’); mixed fatty acids (approximately 70-80%), including
glycerides, hydrocarbons, oleic acid, stearic acid, linoleic acid, linolenic acid; and organic
compounds including herbicides, pesticides, insecticides, dissolved gases, moisture, and other
general impurities." (Mayfield Aff`. 11 16). Plaintiff conceded that "there are no formal
specifications of the composition of DOD, which is dependent on the source of the vegetable
material and processing conditions," (I-Iart Aff`. 11 8), and that "[t]he residue of deodorization is a
complex mixture of chemicals . . . ." (Collins Aff. ‘Il 5). These statements suggest that DOD
qualifies as a chemical product or preparation with a non-specific chemical composition.

While Plaintiff agrees that DOD is a by-product of soybean distillation, it contends that

not all by~products are classifiable in Heading 3824. Plaintiff" s Response at 24-25; see also The

American Heritage Diction@ of the English Langgage (4th ed. 2000) (a by-product is

28

"something produced in the making of something else"). This assertion is clearly validated by
the creation of Heading 3825, which refers to "residual products" that may also be construed as a
type of "by-product." However, because subheading 3825.90 is limited to the residual products
listed, classification of DOD in subheading 3824.90.28 is proper. Thus, because DOD is not
properly classified in Heading 3807, subheading 3825.61, or subheading 3825.90, and in lieu cfa
more specific provision, Customs properly classified entries of DOD in subheading 3824.90.28.

V
CONCLUSION

For the foregoing reasons Plaintiff’s Motion for Summary Judgment is DENIED,
Defendant’s Motion for Summary Judgment is GRANTEI), and Plaintiff" s Response and Cross-
Motion is DENIED. Accordingly, Customs’ classification of deodorizer distillate, CAS Number

68476-80-2, in HTSUS subheading 3824.90.28 is AFFIRMED.

_/s/ Evan J. Wallach
Evan J. Wallach, Judge

Dated: April 11, 2008
New York, New York

29