Slip Op. 04-87
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: CARMAN, JUDGE
____________________________________
:
BASF CORPORATION, :
:
Plaintiff, :
:
v. : Court No. 02-00260
:
UNITED STATES, :
:
Defendant. :
____________________________________:
[Defendant’s motion for summary judgment is denied. Plaintiff’s Motion for Leave to File a
Sur-Reply Brief is Denied.]
Dated: July 15, 2004
Barnes, Richardson & Colburn (Frederic D. Van Arnam, Jr.), New York, N.Y., for
Plaintiff.
Peter D. Keisler, Assistant Attorney General; Barbara S. Williams, Attorney-in-Charge,
International Trade Field Office; Harry A. Valetk, Trial Counsel, Commercial Litigation Branch,
Civil Division, United States Department of Justice; Michael Heydrich, Attorney, Office of
Assistant Chief Counsel, International Trade Litigation, United States Customs and Border
Protection, Of Counsel, for Defendant.
OPINION
CARMAN, Judge: Plaintiff BASF Corporation (“BASF”) initiated this suit to challenge
the United States Customs Service’s, now organized as the Bureau of Customs and Border
Protection (“Customs”), denial of BASF’s protest of the classification of seven entries of
PURADD® FD-100. Defendant moves for summary judgment, asserting that no genuine issues
of material fact in dispute. BASF opposes Defendant’s motion. This court has jurisdiction to
review this matter under 28 U.S.C. § 1581(a) (2000). For the reasons detailed below, this Court
Court No. 02-00260 Page 2
denies Defendant’s motion for summary judgment. The Court also denies Plaintiff’s Motion for
Leave to File a Sur-Reply.
BACKGROUND
This case involves seven entries of PURADD® FD-100, “a clear, colorless liquid
containing 53[%] [polyisobutylene amine (“PIBA”)] and 47[%] saturated hydrocarbons,” which
is “commonly used as a component of prepared gasoline additive detergent packages” made
between January and August 2000. (Pl.’s Statement of Facts (“Pl.’s Statement”) ¶¶ 1, 8.); Def.’s
Resp. to Pl.’s Statement of Material Facts (“Def.’s Resp.”) ¶¶ 1, 8.1) “PIBA is a slightly
polymerized polymer that has at least five monomer units and is obtained from isobutene” and is
primarily made up of polyisobutylene (“PIB”). (Pl.’s Statement ¶¶ 12-13; Def.’s Resp. ¶¶ 12-13.)
The PIBA component of PURADD® FD-100 undergoes the following manufacturing process:
“inert saturated hydrocarbons [are added to] the highly reactive polyisobutylene (known as HR
PIB or by its trade name Glissopal® 1000) . . . to reduce the viscosity of the HR PIB and to ensure
that it may be pumped and stored safely.” (Pl.’s Statement ¶¶ 3-4; Def.’s Resp. ¶¶ 3-4.) “After
importation, PURADD® FD-100 is blended together with various chemicals to create a fully
formulated deposit control additive package.” (Pl.’s Statement ¶ 6; Def.’s Resp. ¶ 6.)
“PURADD® FD-100 is not sold or used as a prepared additive for gasoline [and] is not referred
to as an unfinished or incomplete prepared additive for gasoline by the industry.” (Pl.’s
Statement ¶¶ 7, 9; Def.’s Resp. ¶¶ 7, 9.)
1
The Court notes that Defendant describes PURADD® FD-100 as consisting of 52%
PIBA and 48% saturated hydrocarbons or paraffinic solvent in its memorandum in support of
summary judgment and accompanying statement of material facts, as well as its reply.
Court No. 02-00260 Page 3
Customs initially classified the merchandise under subheading 3811.19.002 of the
Harmonized Tariff Schedule of the United States (“HTSUS”), “Antiknock Preparations: Other.”
Customs Ruling Letter HQ 9643190 (June 26, 2001) at 1 (Def.’s Ex. E). Customs subsequently
revoked the ruling letter which classified the merchandise under 3811.19.00 and reclassified the
merchandise as a gasoline detergent additive under subheading 3811.90.003, HTSUS. Id. BASF
requested reconsideration of the revocation and sought classification of the merchandise under
subheading 3902.20.504, HTSUS, the provision for other polyisobutylene or PIBs. Id.
2
Subheading 3811.19.00 provides:
3811 Antiknock preparations, oxidation inhibitors, gum inhibitors, viscosity
improvers, anti-corrosive preparations and other prepared additives, for
mineral oils (including gasoline) or for other liquids used for the same
purposes as mineral oils:
Antiknock Preparations:
***
3811.19.00 Other . . . . . . . . . . . . . . . . . . . . 1.5¢/kg + 9.3%
3
Subheading 3811.90.00 provides:
3811 Antiknock preparations, oxidation inhibitors, gum inhibitors, viscosity
improvers, anti-corrosive preparations and other prepared additives, for
mineral oils (including gasoline) or for other liquids used for the same
purposes as mineral oils:
***
3811.90.00 Other . . . . . . . . . . . . . . . . . . . . . 1.5¢/kg + 9.3%
4
Subheading 3902.20.50 provides:
3902 Polymers of propylene or of other olefins, in primary forms:
***
3902.20 Polyisobutylene
***
3902.20.50 Other . . . . . . . . . . . . . . . . . . . . . 6.5%
Court No. 02-00260 Page 4
STANDARD OF REVIEW
Summary judgment will be granted when “the pleadings, depositions, answers to
interrogatories, and the admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” USCIT R. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). The party moving for summary judgment “bears the burden of demonstrating the
absence of all genuine issues of material fact.” Avia Group Int’l v. L.A.Gear California, Inc.,
853 F.2d 1557, 1561 (Fed. Cir. 1988). The moving party may do this “by producing evidence
showing the lack of any genuine issue of material fact.” Black and White Vegetable Co. v.
United States, 125 F. Supp. 2d 531, 536 (Ct. Int’l Trade 2000) (citations omitted).
A party opposing a well-supported motion for summary judgment may not simply rely on
its pleading. Id. In order to successfully defeat the motion, the party “must show an evidentiary
conflict on the record.” Mingus Constructors, Inc. v. United States, 812 F. 2d 1387, 1390-91
(Fed. Cir. 1987). “[T]he inferences to be drawn from the underlying facts contained in such
materials must be viewed in the light most favorable to the party opposing the motion.” United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962); see also Avia Group Int’l, 853 F.2d at 1560.
“[A]t the summary judgment stage the [Court’s] function is not . . . to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Anderson, 477 U.S. at 249. “Whether a disputed fact is material is identified by the substantive
law and whether the finding of that fact might affect the outcome of the suit.” E.I. Dupont de
Nemours & Co. v. United States, 123 F. Supp. 2d 637, 639 (Ct. Int’l Trade 2000) (citing
Court No. 02-00260 Page 5
Anderson, 477 U.S. at 248).
PARTIES’ CONTENTIONS
I. Defendant’s Contentions
Defendant characterizes the matter before the Court as a simple classification case, in
which “[t]he parties agree on the chemical characteristics PURADD® FD-100” and its use in the
United States, but they do not agree on PURADD® FD-100’s classification. (“Def.’s Mem. in
Support of Def.’s Mot. for Summ. J. (“Def.’s Mem.”) at 12-13; Def.’s Reply to Pl.’s Opp’n to
Def.’s Mot. for Summ. J. (“Def.’s Reply”) at 5.) Defendant contends that summary judgment is,
therefore, appropriate because there are no genuine issues of material fact in dispute. (Def.’s
Reply at 1.)
Defendant describes PURADD® FD-100 as “an ‘unfinished’ fuel detergent additive,
containing [PIBA] – a patented and key ingredient for fuel detergency – marketed as the most
important component of fuel detergent additive packages for preventing engine deposits” and
alleges that PURADD® FD-100’s “sole use in the U.S. is as a fuel detergent additive
component.” (Def.’s Reply at 1-2.) Defendant asserts that, based on BASF’s admissions and its
patent for PIBA, both parties agree that PURADD® FD-100 is used “as a detergent active
component in making fuel additive packages.” (Id. at 5; see also Def.’s Mem. at 5.) Defendant
surmises that the challenges raised by BASF as to the description of PURADD® FD-100 as “an
unfinished fuel detergent additive” do not establish the existence of a genuine dispute of material
fact, but rather demonstrate a “dispute in legal conclusions” based upon undisputed facts. (Def.’s
Reply at 8.)
Court No. 02-00260 Page 6
Defendant asserts that the classification of the merchandise as a gasoline detergent
additive is correct “because [PURADD® FD-100] has the properties of a detergent as imported”
and its only use in the United States is as a “fuel detergent additive component in a fuel detergent
additive package.” (Def.’s Mem. at 9.) Defendant offers the following summary of the way in
which PURADD® FD-100 is produced: first, PIB polymer is converted to PIBA through a two-
step chemical transformation process (Id.); second, “[t]he result is a high purity, highly active,
chlorine-free, water-white product providing superior intake valve detergency while controlling
combustion deposits” (Id. (quoting BASF’s Website Fuel Additives Product Line Information
(Def.’s Ex. F))); finally, saturated hydrocarbons are then added to the PIBA, which results in
PURADD® FD-100. (Id. (citing Crawford Report at 5 (Def.’s Ex. H)).)
Defendant asserts that after importation, PURADD® FD-100 “is blended with carrier oil,
and anti-corrosive and other ingredients to produce a final fuel detergent additive package
(PURADD® AP-97) ready for use in today’s engines.” (Def.’s Reply at 6.) Defendant alleges
that “[b]lending [the mixing/adding of other substances to the PURADD® FD-100] does not
involve a chemical transformation process, since no new chemical bonds are formed and no
existing bonds are broken” and does not alter the character of PIBA, “the active – key –
ingredient of PURADD® FD-100.” (Def.’s Mem. at 10.) Defendant asserts that this evidence
demonstrates that “it is undisputed that PURADD® FD-100’s virtually sole use is a component of
gasoline detergent additive.” (Def.’s Reply at 7.) Defendant notes that information supplied by a
BASF employee, Dr. Erich Fehr, BASF’s Head of Marketing Fuel Additives Performance
Chemicals for Automotive and Oil Industry, during his deposition supports the conclusion that
Court No. 02-00260 Page 7
PURADD® FD-100 is almost exclusively used as a component of gasoline detergent additive.
(Def.’s Mem. at 4, 17, 20 (citing Fehr Dep. (Def.’s Ex. I); see also Def.’s Reply at 6-7.)
Defendant argues that “[e]ven if PURADD® FD-100 cannot be considered a prepared additive in
its condition as imported, it is – at the very least – an ‘unfinished’ prepared additive. (Def. Mem.
at 5, 20 (citing Crawford Report at 9 (Def.’s Ex. H)).)
Defendant argues that BASF’s assertion that there are issues of material fact because
Defendant might have a different understanding of PURADD® FD-100’s manufacture is
incorrect. (Def.’s Reply at 12.) Defendant asserts that any difference in the parties’ recitations of
the manufacturing process is “immaterial” to the way in which it is classified and does not give
rise to the existence of a dispute in material fact. (Id.) Defendant also refutes BASF’s assertion
that Defendant must establish that PURADD® FD-100 is “‘primarily used’ as a detergent additive
‘as is.’” (Id. at 7 (citing Pl.’s Opp’n at 7-11.).) Defendant argues that this is “a fact that neither
side is claiming;” moreover, Defendant states that it “do[es] not materially disagree with BASF
that PURADD® FD-100 is not ‘primarily used’ as a detergent additive ‘as is.’” (Id.)
Defendant states that BASF seeks classification of PURADD® FD-100 as an “other
PIB[]” under Heading 3902, HTSUS. (Def.’s Mem. at 6.) Defendant notes that “[w]hile
Customs recognized that this provision encompasses the modified polymer PIBA, PURADD®
FD-100 is not simply PIBA, but rather, it is a preparation containing PIBA; [and] [t]herefore, it is
excluded from Heading 3902.” (Id.) Defendant refutes BASF’s assertion that Defendant has
claimed that PURADD® FD-100 is not in primary form as the basis of excluding PURADD® FD-
100 from classification under Heading 3902. (Id. at 13.) Defendant asserts that the basis for
Court No. 02-00260 Page 8
excluding PURADD® FD-100 from Heading 3902 is provided in Chapter 39’s explanatory notes,
which “exclude prepared additives for mineral oil from classification under Chapter 3902.” (Id.
(citing Chapter 39, HTSUS, Chapter Note 6, Explanatory Notes).)
Defendant asserts that the affidavit of Dr. Stephano Crema, the evidence that BASF offers
to refute several statements of material fact that Defendant contends are not in dispute,
“contradict[s] BASF’s own evidence and admissions,” and, as such, “ cannot . . . be offered to
create issues of fact.” (Def.’s Reply at 3.) Defendant alleges that the Crema Affidavit
contradicts the information contained in the depositions of Dr. Fehr and Susan Gardell, the
marketing manager of BASF’s Automotive and Oil Industry. (Id.) Defendant labels the Fehr and
Gardell depositions as “admissions of BASF,” which “cannot now be contradicted simply
because the testimony has proven, in hindsight, inconvenient[] to BASF.” (Id.)
Defendant challenges BASF’s assertion that material facts remain at issue “as to whether
PURADD® FD-100 is a prepared additive for gasoline” and BASF’s argument that “PURADD®
FD-100 is not a preparation because no solvent is added to the PIBA prior to importation.” (Id.
at 4.) Defendant argues that, on the basis of BASF’s earlier admissions, it has demonstrated that
“the PIBA component of the PURADD® FD-100 is viscous material, and is therefore diluted
with a hydrocarbon solvent to facilitate processing, shipment, and storage.” (Id. (citing Crawford
Report at 4 (Def.’s Ex. H)).) Defendant states that BASF is now contradicting its admissions by
asserting that solvent is added to PIB, not PIBA, and that the PIB-and-solvent mixture then
undergoes a process to make PIBA. (Id. (referring to Crema Aff. ¶¶ 5-6).) Defendant states that
whether the solvent is added to PIB or to PIBA does not change the fact that “PURADD® FD-
Court No. 02-00260 Page 9
100 is . . . a preparation because . . . it is prepared from highly-reactive PIB and a solvent, and
thus, is consistent with the definition of a preparation.” (Id. at 4-5 (citing WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY 1790 (1981) (defining “preparation”)).) Defendant asserts
that because PURADD® FD-100 is a preparation, it “meets the definition of a detergent under the
Explanatory Notes.” (Id. at 5.) Defendant adds that, while its description of the point at which
the solvent is added differs from that of BASF’s, this difference does not create a genuine issue
of material fact. (Id.)
Defendant disputes BASF’s contention that the Court cannot hold that PURADD® FD-
100 is an “unfinished” fuel detergent additive because material facts remain at issue. (Id. at 8.)
Defendant notes that the three facts that BASF alleges to be at issue are: (1) BASF’s contention
that PURADD® FD-100 is a “fully finished specialty” chemical; (2) BASF’s claim that
“PURADD® FD-100 ‘alone’ does not provide the essential character of the final formulated fuel
detergent package because synthetic carrier oil is necessary for the final product to function
well”; and (3) BASF’s assertion that “the fuel industry does not recognize PURADD® FD-100 as
unfinished.” (Id.) Defendant asserts that none of these claims present issues of material fact.
(Id.) First, Defendant argues that labeling PURADD® FD-100 as a “fully finished specialty
chemical” does not impact on the legal determination of whether it is an “unfinished” fuel
additive for purposes of classification and this label contradicts BASF’s earlier “admissions.”
(Id. at 8-9.)
Second, Defendant contends that BASF’s claim that PURADD® FD-100 does not provide
the essential character of the fuel detergent package is undermined by “other uncontested
Court No. 02-00260 Page 10
evidence [supporting] the determination that . . . PURADD® FD-100 is an unfinished fuel
detergent additive.” (Id. at 9-10.) Defendant’s fuel additive expert, Dr. Crawford, also agrees
with the conclusion that PURADD® FD-100 is an “unfinished” detergent additive. (Id. at 10.)
Defendant observes that BASF, relying on the Crema Affidavit, argues that PURADD® FD-100’s
characteristics raise issues of material fact regarding Defendant’s “unfinished” detergent additive
description. (Id.) Defendant, however, states that it “do[es] not necessarily disagree with
BASF’s statements,” and these statements do not contradict the conclusion that “PURADD® FD-
100 has the essential character of a fuel additive because of . . . the undisputed detergency role of
the PURADD® FD-100 in the finished PURADD® AP-97 package.” (Id. at 10-11.)
Third, Defendant contends that BASF’s assertion that PURADD® FD-100 is not
recognized in the fuel industry as “unfinished” rests upon the fact that the fuel industry does not
use the term “unfinished.” (Id. at 11.) Defendant asserts that it “does not dispute that
[“unfinished”] is not used in the fuel industry” and this lack of use or understanding of the term
“unfinished” in the fuel industry is not relevant to the case. (Id.) Rather, Defendant contends,
the issue is whether PURADD® FD-100 is “unfinished” under the HTSUS. (Id.)
Finally, Defendant argues that BASF’s reliance on Jack A. Erdle v. United States, 23 Ct.
Int’l Trade 14 (1999), is misplaced. (Id. at 11.) Defendant notes that in that case, summary
judgment was denied to both parties because the court was “unable to determine whether the
merchandise [was] a complete or finished article, or an incomplete and unfinished article having
the essential character of a pearl necklace” based upon unclear facts surrounding the stringing,
knotting, and clasp design of the imported pearls. (Id.) Defendant asserts that “there are no
Court No. 02-00260 Page 11
questions regarding the manufacture and use of PURADD® FD-100 or the role of its constituent
components.” (Id. at 12.)
Next, Defendant addresses BASF’s challenges to the admissibility of evidence offered in
support of Defendant’s motion for summary judgment, asserting that these challenges are
“baseless.” (Id. at 13.) Defendant argues that it has cured any alleged admissibility problem
presented by the unsigned depositions and an unsworn expert report by providing the Court with
“signed copies of [the deposition transcripts of Dr. Fehr, Ms. Gardell, and James Kecham
depositions] and a “statement in which Dr. Crawford certifies that his April 26, 2004 statements
and conclusions [in his expert report] are true and accurate to the best of his knowledge.” (Id. at
14 (referring to Def.’s Reply Exs. A and B).) Defendant dismisses BASF’s objections to other
specific exhibits by noting that these documents were “submitted to Customs [by BASF] at the
administrative level” and were “recognized” by witnesses during their depositions or provided by
BASF in its response to Defendant’s First Set of Interrogatories. (Id.)
Defendant concludes, because it has established the lack of material facts at issue,
summary judgment should be granted in its favor and this case should be dismissed. (Id. at 13.)
II. Plaintiff’s Contentions
BASF argues that this case is not ripe for summary judgment, as genuine issues of
material fact remain for trial. (Pl.’s Opp’n to Def.’s Mot. for Summ. J (“Pl.’s Opp’n”) at 4.)
BASF offers the affidavit of Dr. Stefano Crema, BASF’s Business Director, Specialty Chemicals
for Automotive & Oil Industry, NAFTA Region, and its response to Defendant’s First Set of
Interrogatories and Request for Production to dispute Defendant’s statement of material facts and
Court No. 02-00260 Page 12
demonstrate that there are outstanding issues of material fact in this case. (Id.) BASF also
charges that Defendant’s motion for summary judgment relies on inadmissible evidence, which
leaves an “unsupported motion” when removed from consideration. (Id.)
Plaintiff disputes Defendant’s labeling of PURADD® FD-100 as a prepared additive for
gasoline, properly classified under subheading 3811.90.00, HTSUS, and Defendant’s
understanding of the characteristics of PURADD® FD-100 and PURADD® FD-100’s
manufacture. (Id. at 6.) BASF asserts that PURADD® FD-100 is not a preparation and does not
meet the Explanatory Notes’ definition of “preparation.” (Id.) BASF contends that Defendant’s
statement, “PURADD® FD-100 is a ‘preparation’ or ‘preapred additive’ in its imported condition
since it is mixed with specific solvents [the saturated hydrocarbons] to allow it to function better
as a detergent,” contains incorrect material facts. (Id. (quoting Def.’s Mem. at 18.)) BASF
explains that prior to importation, no solvents are added or blended with PURADD® FD-100 and
no solvent is added to PIBA. (Id. (citing Crema Aff. ¶¶ 5, 6, 16 (Pl.’s Ex. 1)).) “While
PURADD® FD-100 is a clear, colorless liquid consisting of PIBA in a hydrocarbon solvent, the
solvent is not added to the PIBA. [BASF’s parent company] adds the hydrocarbon solvent to the
Glissopal® 1000, the [PIB] raw material” to reduce its viscosity and facilitate transportation. (Id.
at 6-7 (citing Crema Aff. ¶¶ 5, 6, 16.).) “Th[e] Glissopal-hydrocarbon solution is then subjected
to the two-step process for manufacturing PIBA.” (Id. at 7 (citing Pl.’s Resp. to Def.’s First Set
of Interrogs. and Req. for Produc. (“Pl.’s Interrogs.”) 7(a) (Pl.’s Ex. A)).) The added “solvent
remains throughout the manufacturing process, does not impact the chemical structure of the
[PIB] or the PIBA, and does not enhance in any way the detergency attributes of PIBA.” (Id. at 7
(citing Crema Aff. ¶ 6).)
Court No. 02-00260 Page 13
BASF argues that because no solvents are added to or blended with PURADD® FD-100
or PIBA, Defendant’s assertion in its statement of material facts not in dispute, that “PIBA is
then blended with saturated hydrocarbons forming PURADD® FD-100" is incorrect. (Pl.’s
Opp’n at 7 (citing Def.’s Statement ¶ 9).) BASF argues that this inaccuracy “creates a genuine
issue of material fact as to when the saturated hydrocarbon solvent is introduced into the product
because plaintiff can prove that defendant’s alleged factual representation is wrong.” (Id.)
BASF asserts that Defendant’s factual inaccuracy raises a genuine issue of material fact
undermining Defendant’s “preparation” argument, calling into question whether the merchandise
is, in fact, a preparation. (Id.)
Plaintiff also challengs Defendant’s assertion that the merchandise is a prepared additive
for gasoline under 3811.90.00, HTSUS, which Plaintiff identifies as a “use” provision. (Id.)
BASF relies on “use” as defined in Additional U.S. Rules of Interpretation 1(a), which provides
that “a tariff classification concluded by use (other than actual use) is to be determined in
accordance with the use in the United States at, or immediately prior to, the date of importation,
of goods that class or kind to which the imported goods belong, and the controlling use is the
principal use.” (Pl.’s Opp’n at 7-8.) BASF asserts that the materials upon with Defendant relies
to establish that PURADD® FD-100 has a detergency component – BASF marketing literature,
the patent for PURADD® FD-100, deposition testimony, and Ullmann’s Encyclopedia of
Industrial Chemistry – do not satisfy this rule interpreting “use.” (Id. at 8.) BASF asserts that
this evidence “does not establish that the imported product in its imported condition is ever sold
or used by [BASF] or any other company for use in gasoline as a prepared additive for gasoline.”
(Id.) BASF argues that it has provided evidence that the merchandise is not used or sold as a
Court No. 02-00260 Page 14
prepared additive for gasoline. (Id.) BASF further asserts that evidence establishes that “when
PURADD® FD-100 [as imported] alone is used in gasoline the intake valves of automobile
engines may under certain conditions stick open, thereby, causing the engine to not start or
otherwise fail.” (Id. at 9 (citing Crema Aff. ¶¶ 14, 18).) BASF asserts that the problem is
remedied when PURADD® FD-100 undergoes further modification into a “fully formulated
[deposit control additive] package with an appropriate synthetic carrier oil.” (Id. at 9-10 (citing
Crema Aff. ¶ 14).) BASF adds that PURADD® FD-100, while registered as an “additive” with
the EPA, “lacks governmental approval for use as a [prepared detergent additive, known in the
industry as deposit control additive] package in gasoline.” (Id. at 10.) BASF explains that “[t]he
EPA requires additive manufacturers to certify all detergent additives before those products can
be used as gasoline detergents . . . [and] PURADD® FD-100 is not a certified detergent additive
and therefore cannot be lawfully used or sold as a prepared additive for gasoline.” (Id. (citing 40
C.F.R. § 80.161; Crema Aff. ¶¶ 18-19; Pl.’s Second Supplemental Resp. to Def.’s First Set of
Interrogs. and Req. for Produc. (“Pl.’s Second Interrogs.”) 25(a)).) BASF notes that “[t]he use of
PURADD® FD-100 as a detergent additive in gasoline [in its imported condition] would violate
the Clean Air Act and the EPA’s regulations,” which would result in substantial fines for each
day of the violation. (Id. (citing 40 C.F.R. § 80.172; Crema Aff. ¶ 19).)
BASF also presents evidence to dispute Defendant’s assertion that PURADD® FD-100
can be classified as an “unfinished” fuel additive under subheading 3811.90.00 using GRI 2. (Id.
at 11.) BASF asserts that PURADD® FD-100 is not unfinished, but “a mature, fully finished
specialty chemical.” (Id. (citing Crema Aff. ¶¶ 10, 20).) BASF explains that PURADD® FD-100
does not provide the essential character for a deposit control additive package, as Defendant
Court No. 02-00260 Page 15
asserts. (Id.) Thus, BASF offers that “facts are needed to establish essential character.” (Id.)
BASF explains that “[b]y the time the PURADD® FD-100 is processed into a fully formulated
deposit control additive package meeting customer specification[s] and EPA certification
requirements, it is not longer PURADD® FD-100” and this processing, which results in a new
product, occurs after importation. (Id. at 12.)
BASF next asserts that there is an issue of material fact in dispute involving the terms
“unfinished” and “incomplete.” (Id.) BASF contends that the parties have differing
understandings of “nature and character” PURADD® FD-100, and this difference raises a triable
issue of material fact, similar to that found in the Erdle case. (Id. (citing Erdle, 23 Ct. Int’l Trade
14).) BASF explains that in Erdle, the parties stipulated to a general description of the subject
merchandise, “natural pearls on a string together with an unattached gold clasp,” but differed in
their understanding of the essential character of the merchandise (Id.) BASF explains that the
plaintiff “described the merchandise as natural pearl, graded and loosely strung on a single string
for convenience of transport,” whereas “defendant characterized the merchandise as an
unassembled or unfinished necklace made from natural pearls.” (Id.) BASF notes that the Erdle
court denied cross-motions for summary judgment, holding that it was “unable to determine
whether the merchandise is a complete or finished article, or an incomplete and unfinished article
having the essential character of a pearl neckalce.” (Id. (quoting Erdle, 23 Ct. Int’l Trade at 17).)
BASF states that the parties in this case similarly agreed to a general description of PURADD®
FD-100: “PURADD® FD-100 is a clear colorless liquid.” (Id.) BASF contends that the parties,
however, disagree as to the essential character of the merchandise. (Id.) BASF asserts that
PURADD® FD-100 as imported is “a complete and finished specialty chemical.” (Id.) BASF
Court No. 02-00260 Page 16
states that Defendant, on the other hand, is arguing that PURADD® FD-100 “is an incomplete
and unfinished article having the essential character of a prepared additive for gasoline because
after importation it is manufactured into a different product that is used as a prepared additive for
gasoline.” (Id. at 12-13.) BASF concludes that this dispute in the characterization and
description of PURADD® FD-100 raises a genuine issue of material fact as to PURADD® FD-
100’s essential character. (Id. (citing Erdle, 23 Ct. Int’l Trade 14).)
BASF raises a challenge to the admissibility of the evidence that Defendant relies on to
support its motion for summary judgment. (Id. at 16.) Specifically, BASF notes that several of
Defendant’s exhibits have not been authenticated, a requirement for admissibility at trial and for
consideration in deciding a motion for summary judgment. (Id. at 16-17.) BASF also challenges
Defendant’s use of a report written by Defendant’s expert, Dr. Wheeler Crawford. (Id. at 18-19.)
BASF notes that the report is not authenticated, is unattested and contains inadmissible hearsay.
(Id. at 18-19.) Further, BASF notes that it is not an affidavit, as it has not been sworn to, and as
such, is an inadmissible unsworn statement which cannot be relied on in summary judgment. (Id.
at 19-20.) BASF notes that, at the time Defendant filed its motion for summary judgment, the
depositions of Dr. Erich Fehr, Susan Gardell, and James Ketcham had not been reviewed,
corrected, changed, or signed to attest to the truth and accuracy of the testimony. (Id. at 21-23.)
BASF argues that when these inadmissible pieces of evidence are removed from consideration,
Defendant’s motion for summary judgment is unsupported. (Id. at 23.)
Court No. 02-00260 Page 17
DISCUSSION
There are Genuine Issues of Material Fact as to Whether PURADD® FD-100 is a
Preparation and Whether PURADD® FD-100 is “Unfinished” for Purposes of
Classification.
“[A]t the summary judgment stage, the [Court’s] function is not . . . to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Anderson, 477 U.S. at 249. “Whether a disputed fact is material is identified by the substantive
law and whether the finding of fact might affect the outcome of the suit.” E.I. Dupont de
Nemours, 123 F. Supp. 2d at 639. In this case, the parties dispute what PURADD® FD-100 is at
the time of importation, what PURADD® FD-100’s manufacturing process entails and the
significance of that process to classification, and PURADD® FD-100’s use at the time of
importation. These disputes constitute genuine issues of material fact, rendering summary
judgment inappropriate.
The factual disputes are genuine because a reasonable fact finder could return a verdict
for either Plaintiff or Defendant, finding that PURADD® FD-100 as imported is a finished
specialty chemical or an unfinished detergent additive for gasoline, or that it is a preparation or is
not a preparation. Defendant, relying on the Crawford Report and deposition testimony, argues
that PURADD® FD-100 is classifiable as a gasoline detergent additive or an unfinished gasoline
detergent additive under 3811.90.00, HTSUS, because PURADD® FD-100 “has the properties of
a detergent as imported,” is an active ingredient in fuel additive packages, and is almost
exclusively used as a component of gasoline detergent additive. (Def.’s Mem at 5, 9; Def.’s
Reply at 4-13.) Defendent also asserts that PURADD® FD-100 is “preparation” because the
addition of solvents to PIBA, results in a “preparation, rather than a polymer ‘in primary form.’”
Court No. 02-00260 Page 18
(Def.’s Mem at 27-29.) Defendant adds that the evidence submitted by BASF and used by
Defendant to support its motion for summary judgment contradicts the Crema Affidavit that
BASF relies on to oppose Defendant’s motion for summary judgment. (Id. at 3.)
BASF counters that its admissible evidence demonstrates that PURADD® FD-100 is
neither an unfinished prepared additive for gasoline because, as imported, it is “a complete and
finished specialty chemical,” nor is PURADD® FD-100 a preparation because “[p]rior to
importation . . . , no solvents are added to or otherwise blended with PURADD® FD-100” or
PIBA. (Pl.’s Opp’n at 6-13; Crema Aff (Pl.’s Ex. 1).) BASF also raises a challenge to the
admissibility of several critical pieces of evidence upon which Defendant’s motion relies. (Id. at
16-23.)
The Court holds that these factual disputes are genuine because a reasonable fact finder
could find that PURADD® FD-100, as imported, is an unfinished gasoline detergent additive or
that it is a “mature, fully finished specialty chemical” that does not provide the essential character
for a deposit control additive package; a reasonable fact finder could also find that PURADD®
FD-100 is a preparation or that it is not a preparation.
These factual disputes are also material because they could affect the outcome of the
classification determination. Characterizing PURADD® FD-100 as an finished or unfinished
gasoline detergent additive, or as a “mature, fully finished speciality chemical” that does not
provide the essential character for a deposit control additive package would directly affect the
classification of PURADD® FD-100. Finding that the manufacturing process of PURADD® FD-
100 results in an imported product that fits the definition of a “preparation” would also directly
affect the classification of PURADD® FD-100. The Court notes that the challenge of the
Court No. 02-00260 Page 19
admissibility of the Crawford Report seems to implicate the need to weigh the unsworn, yet
certified, Crawford Report against the Crema Affidavit, a consideration not appropriate for
summary judgment determinations.
Further findings of fact are necessary to determine whether PURADD® FD-100 is a
preparation and whether PURADD® FD-100 is a finished or an unfinished prepared additive
classifiable under 3811.90.00, HTSUS.
CONCLUSION
For the reasons addressed herein, Defendant’s motion for summary judgment is denied.
Plaintiff’s Motion for Leave to File a Sur-Reply Brief is also denied.
/S/ Gregory W. Carman
Gregory W. Carman
Judge
Dated: July 15, 2004
New York, NY