Ciba-Geigy Corp. v. United States

                                      Slip Op. 01-134

                  UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________
                                    :
CIBA-GEIGY CORPORATION,             :
                                    :
            Plaintiff,              :
                                    :                 Before: WALLACH, Judge
      v.                            :                 Consol. Court No.: 93-03-00148
                                    :
UNITED STATES,                      :
                                    :
            Defendant.              :
                                    :
____________________________________:

[Defendant's motion for summary judgment GRANTED.]

                                                            Decided: November 16, 2001

Ross & Hardies (John B. Pellegrini), for Plaintiff.

Stuart A. Schiffer, Acting Assistant Attorney General; Joseph I. Liebman, Attorney in Charge,
International Trade Field Office, Commercial Litigation Branch, Civil Division, Department of
Justice, John J. Mahon, Trial Attorney, for Defendant.

                                            OPINION

WALLACH, Judge.


                                                 I

                                     Preliminary Statement


       Plaintiff, Ciba-Geigy Corporation ("Ciba-Geigy"), sued to challenge the United States

Customs Service's refusal to reliquidate certain shipments of "color preparations" imported by

Ciba-Geigy. Plaintiff now moves for summary judgment, claiming reliquidation is required,


                                                 1
following a timely protest under 19 U.S.C. § 1514, because, allegedly, the Government

erroneously classified the subject merchandise under the Harmonized Tariff Schedule of the

United States ("HTSUS") (1990) heading 3204, subheadings 3204.12.50, 3204.17.50,

3204.19.19, and that rather, the subject merchandise is properly classified under subheadings

3204.12.40, 3204.17.30, or 3204.19.15.1 Plaintiff asserts the color preparations, as they are not


       1
           3204       Synthetic organic coloring matter, . . .preparations as specified in note 3 to
                      this chapter based on synthetic coloring matter: . . .

                                                ***

       3204.12        Acid dyes, . . ., and preparations based thereon:. . .

                                                ***

       3204.12.40             Other:
                                       Products described in additional U.S. note 3 to section VI.

       3204.12.50                      Other.

                                                ***

       3204.17        Pigments and preparations based thereon.

                                                ***

       3204.17.30             Other:
                                       Products described in additional U.S. note 3 to section VI.

       3204.17.50                      Other.

       3204.19        Other, including mixtures of coloring matter of two or more of the
                      subheadings 3204.11 to 3204.19:

       3204.19.15             Other:
                                       Products described in additional U.S. note 3 to section VI.

       3204.19.19                      Other.


                                                 2
expressly referenced by the Chemical Appendix to the HTSUS, are therefore necessarily within

the ambit of additional U.S. Note 3, Section VI, HTSUS (“Note 3”) (1990). As a result, Plaintiff

claims the lower tariff classifications should apply. The United States Customs Service

("Customs") has filed a cross motion for summary judgment claiming that the subject color

preparations, are listed within the Chemical Appendix by the Chemical Abstract Service registry

number (“C.A.S. No.”) of the primary color ingredient or via trade name, chemical name, or

color index name. As such, Customs avers the higher tariff rates are warranted. Both parties

agree the resolution of this matter depends solely on whether the color preparations are described

by Note 3, and that this question is purely one of law.

       Customs has demonstrated that the subject color preparations are listed within the

Chemical Appendix and are therefore not within the ambit of Note 3. Accordingly, the court

grants its motion for summary judgment and denies Plaintiff’s motion.



                                                 II
                                      Subject Merchandise


       At issue is the proper tariff classification for 562 color preparations, each containing



                                               ***


       2
          Customs concedes that under its own methodology for determining whether or not a
given color preparation is encompassed by Note 3 (i.e. whether the main color ingredient of the
preparation is listed within the Chemical Appendix), four of these preparations are properly
classified under the lower duty tariff provisions. Therefore there are, in reality, 52 color
preparations in dispute. These four preparations are Irgalite Blue GSP, Irgasperse Brown 4R-U,
Irgasperse Red G-U, and Microlith Magenta B-WA. See Defendant's Memorandum of Law in
Opposition to Plaintiff's Motion for Summary Judgment and In Support of Defendant's Cross

                                                 3
certain coloring matter that were imported by Plaintiff between February 1990 and October 1992.

The preparations are employed in various capacities, including inks, dyes, paints, and stains and

are generally composed of one or more color imparting ingredients and one or more non-color

ingredients. Products listed in the Chemical Appendix are identified by a C.A.S. No., Color

Index Name, trade name, or chemical name.


                                                 III
                                            Arguments


                                                 A
 Ciba-Geigy Argues that the Plain Language of Note 3 and the De Minimus Rule Support
               Classification Under the Subheadings that Impose Lower Duty Rates.


        Ciba-Geigy claims that the subject color preparations are not listed in the Chemical

Appendix and that Customs therefore erroneously classified the preparations under the HTSUS

subheadings with higher duty rates. Ciba-Geigy draws the court's attention to Note 3 as the

critical distinction between Customs' chosen classification and its own. In summary, Ciba-Geigy

states that:

        [c]lassification in the provisions claimed to be correct by plaintiff requires that the
        merchandise: 1) be synthetic organic coloring matter or preparations based on such
        coloring matter; 2) be acid dyes, pigments, mixtures of the same, or preparation based
        thereon; and 3) not be specifically provided for and, therefore, classified in the residual
        provision, and; 4) be described in Note 3. The classifications asserted by the Customs
        service have the identical requirements save one; the classifications asserted by the
        Customs Service require that the preparations be outside Note 3, i.e., they must be listed
        in the Chemical Appendix.




Motion for Summary Judgment (“Defendant’s Motion”) at 5.

                                                 4
Plaintiff's Memorandum in Support of its Motion for Summary Judgment (“Plaintiff’s Motion”)

at 9. Customs agrees that this is the primary distinction between the parties' characterization of

the color preparations. See Defendant's Motion.

       Note 3 provides:


       3.      The term "products described in additional U.S. note 3 to section VI refers
               to any product not listed in the Chemical Appendix to the Tariff Schedule
               and–

               (a)     For which the importer furnishes the Chemical Abstracts Service
                       (C.A.S.) registry number and certifies that such registry number is
                       not listed in the Chemical Appendix to the Tariff Schedule; or

               (b)     Which the importer certifies not to have a C.A.S. registry number
                       and not to be listed in the Chemical Appendix to the Tariff
                       Schedule, either under the name used to make Customs entry or
                       under any other name by which it may be known.

U.S. Note 3, Section VI, HTSUS (emphasis added).
       Ciba-Geigy claims that the Chemical Appendix cannot refer to a completed preparation

by expressly referring to only an ingredient within that preparation. Plaintiff's Motion at 2.

"Products listed in the Chemical Appendix are identified by a Chemical Abstract Service registry

number (‘C.A.S. No.’), Colour Index Name, trade name or chemical name. The vast majority of

the products listed in the Chemical Appendix are identified by C.A.S. No. The subject

preparations do not have C.A.S. Nos." Id. at 2 (citing Confidential Appendix A to the Joint

Stipulation). Although "[t]he majority of the subject preparations have as their principal

ingredient in terms of function (and in 32 of 56 cases, in terms of relative weight) a pigment or

dye whose C.A.S. No. is listed in the Chemical Appendix", id. at 5, "[t]he subject preparations

are formulated preparations containing one or more color ingredients and one or more non-color


                                                 5
ingredients . . . and since each has non-color ingredients present in significant quantities, which

ingredients are not listed in the Chemical Appendix, the Appendix does not cover these

preparations." Id. at 2-3. Under this line of reasoning, the subject preparations do not have a

specific C.A.S. No. and are therefore not included in the Chemical Appendix.

       In support of this argument, Ciba-Geigy asserts that Customs failed to apply the de

minimus rule and “classified the subject preparations as being within the scope of the Chemical

Appendix by disregarding the presence of the non-listed color and non-color ingredients in the

formulations.” Id. at 12. Specifically, Plaintiff asserts that the two major principles underlying

the de minimus rule dictate that 1) "ingredients which are significant in terms of quantity or

function may not be ignored in determining classification" and 2) "the presence of ingredients

may be ignored when they are insignificant." Id. (citing Varsity Watch Co. v. United States, 34

CCPA 155 (1947); United States v. Aetna Explosives Co., 256 U.S. 402, 41 S. Ct. 513, 65 L. Ed.

1013 (1921)). Plaintiff avers that each of the subject preparations contains non-color ingredients

that perform significant and substantial functions. Secondly, Plaintiff avers that the non-color

ingredients are present in significant quantities, "in the case of 24 of the 56 preparations at issue,

they are present in quantities greater than the coloring matter." Id. at 17. As such, the alleged non

de minimus presence of the non-color ingredients would place all of the subject color

preparations outside the Chemical Appendix.

       Thus, Ciba-Geigy asserts the relevant inquiry should be whether or not a given color

preparation is listed in the Chemical Appendix by C.A.S. number, recognizing the color

preparations are completed products that contain a significant array of non-color ingredients. If

the answer is no, then Ciba-Geigy asserts that preparation is included within the scope of Note 3


                                                  6
and should be liquidated under according to the lower tariff rates.



                                                 B
 Customs Claims that Plaintiff's Distinction Between "Products" and "Ingredients" Does
                      Not Find Support Within the Chemical Appendix.


       Customs claims that "Ciba-Geigy's focus on 'ingredients' vs. 'products' and its

interpretation of the applicability of the de minimus rule are incorrect and their adoption would

impermissibly circumscribe the scope of the Appendix and frustrate the intent of the legislature."

Defendant's Motion at 9. Customs further claims that "the presence of non-color ingredients,

whatever their magnitude or function, has no bearing upon either the classification of coloring

matter or whether it is within the scope of the Chemical Appendix." Id. at 9-10.

       Customs first relies on the Appendix's legislative history to argue that the subject color

preparations are governed by the higher tariff rates and to counter Ciba-Geigy's application of the

de minimus rule. Customs says that "[e]xamination of the history and reason for the enactment

of the Chemical Appendix demonstrates that Ciba-Geigy's arguments here would impermissibly

narrow and circumscribe the intended scope of the Chemical Appendix." Id. at 10. In short, since

the United States International Trade Commission (“ITC”) established the Chemical Appendix,

Customs offers an interpretation of a pair of ITC publications that purport to articulate the scope

of the Appendix. From these bulletins, Customs derives critical cutoff dates of January 1, 1978,

prior to which the importation of the listed chemicals would trigger the higher tariff rates and

May 1, 1978, prior to which the production of the listed chemicals within the United States

would trigger the higher tariff rates. Customs concludes that there was "an explicit legislative


                                                 7
intent to assess duty at a higher rate on inter alia, the synthetic organic coloring matter

classifiable in Heading 3204, HTSUS, unless it was not imported or produced before the

applicable dates. . . ." Id. at 15.

        Secondly, Customs argues that by insisting that the coloring matter in its products is an

ingredient among many other ingredients, Ciba-Geigy inaccurately “marginalizes the important

role coloring matter plays in its products." Id. at 20. Customs generally criticizes Ciba-Geigy’s

reading of the C.A.S. Registry Numbers and the Chemical Appendix for being too narrow and

guilty of omission. Id. at 20-25. In particular, Customs claims that the C.A.S. Registry Numbers

and their relationship with the Chemical Appendix must be read more broadly and that such

reading is consistent with their language. “With respect to coloring matter and preparations

based on coloring matter, the C.A.S. Registry Numbers do not only represent the discrete

chemical compounds, but also represent all the names by which that coloring matter or

preparations based on coloring matter are known, including all trade names.” Id. at 20-21.

Moreover, Customs emphasizes the Chemical Appendix Note which states that reference to the

products by the C.A.S. Registry Number includes such products “by whatever name known.”

Chemical Appendix Note, HTSUS (1992). The Chemical Appendix Note which is incorporated

in the overall HTSUS language, provides:


        Chemical Appendix Note

        1. This appendix enumerates those chemicals and products which the President
        has determined were imported into the United States before January 1, 1978, or
        were produced in the United States before May 1, 1978. For convenience, the
        listed articles are described (1) by reference to their registry number with the
        Chemical Abstracts Service (C.A.S.) of the American Chemical Society, where
        available, or (2) by reference to their common chemical or trade name where the
        C.A.S. registry number is not available. For the purpose of the tariff schedule,

                                                  8
        any reference to a product provided for in this appendix includes such products
        listed herein, by whatever name known.

Id. (emphasis added). Therefore, Customs claims that the Appendix refers “not solely to the

chemical compound of the coloring matter represented by the C.A.S. Registry Number,” but also

the trade names, and the color index names and numbers under which the coloring matter is

commercially known. Defendant’s Motion at 22.

        Finally, Customs stresses that the Chemical Appendix need refer to only the main

coloring ingredient of a given preparation by whatever name known for that preparation to be

within its ambit. Customs claims "[i]t is undisputed that all of the coloring matter imported here

(with the exception of the four earlier identified as to which the Government concedes) are listed

in the Chemical Appendix by the C.A.S. Number of the main coloring matter or its Color Index

Name and/or Number. It is also undisputed that the main coloring matter determines the

product's classification without regard to the presence of other ingredients or their magnitude

such as those included in the imported acid dyes, pigments and mixtures in issue here. Moreover

it is the classification of the product which determines if it is within the scope of the Chemical

Appendix in the first instance." Defendant's Motion at 17 (emphasis in original).

        In summary, Customs argues for a more inclusive reading of the Chemical Appendix

based on the Appendix’s legislative history and Customs’ past practice. In addition, Customs

avers that the relevant inquiry should focus on whether the main coloring ingredient of the

subject preparations was imported into or produced within the United States prior to the above

critical dates.




                                                 9
                                                 IV
                                      Standard For Analysis
                                                 A
                                       Summary Judgment


       Under USCIT R. 56(c), summary judgment is appropriate when "the pleadings,

depositions, answers to interrogatories, and 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." The moving party bears the burden of demonstrating

the absence of all genuine issues of material fact. Avia Group Int'l, Inc. v. L.A. Gear Cal., Inc.,

853 F.2d 1557, 1560 (Fed. Cir. 1988). This may be done by producing evidence showing the

lack of any genuine issue of material fact or, where the non-moving party bears the burden of

proof at trial, by demonstrating that the nonmovant has failed to make a sufficient showing to

establish the existence of an element essential to its case. Id.; Celotex Corp. v. Catrett, 477 U.S.

317, 324-325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

       To successfully oppose a properly supported motion for summary judgment, the

nonmovant may not simply rest on its pleadings. Rather, it must produce evidence "by affidavits

or as otherwise provided in [USCIT R. 56]" which "set forth specific facts showing that there is a

genuine issue for trial." USCIT R. 56(e); see also Mingus Constructors, Inc. v. United States,

812 F.2d 1387, 1390-91 (Fed. Cir. 1987) ("[T]he party opposing summary judgment must show

an evidentiary conflict on the record; mere denials or conclusory statements are not sufficient.").

       In determining whether the parties have met their respective burdens, the court does not

"weigh the evidence and determine the truth of the matter," but simply determines "whether there


                                                 10
is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 , 106 S. Ct.

2505, 91 L. Ed. 2d 202 (1986). In so doing, the Court views all evidence in a light most

favorable to the nonmovant, drawing all reasonable inferences in the nonmovant's favor. United

States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962); Avia Group

Int'l, 853 F.2d at 1560.



                                                 B
                       The Presumption of Correctness Does not Apply.


       In a classification action, once the court has decided that no material facts are in dispute,

it is then left with a purely legal question involving the meaning and scope of the tariff provision

and whether it includes the imported merchandise. See National Advanced Sys. v. United States,

26 F.3d 1107, 1109 (Fed. Cir. 1994). Although typically there is a statutory presumption of

correctness for Customs decisions, 28 U.S.C. § 2639(a)(1) (1994), when the court is presented

with a question of law in a proper motion for summary judgment, that presumption does not

apply. See Universal Elecs., Inc. v. United States, 112 F.3d 488, 492 (Fed. Cir. 1997); Goodman

Mfg., L.P. v. United States, 69 F.3d 505, 508 (Fed. Cir. 1995) ("Because there was no factual

dispute between the parties, the presumption of correctness is not relevant.")


                                                 V
                                             Analysis:
   The Chemical Appendix Cannot be so Narrowly Interpreted as to Bar Reference to a
Completed Preparation Based on the Express Listing of the Preparation’s Main Ingredient.



       Plaintiff’s argument that the Chemical Appendix cannot refer to completed products

                                                11
based solely by the main component ingredient must fail, as it would too severely limit the

Appendix’s application. Among other things, Plaintiff attacks Customs’ construction of the

statute on the basis that it would render the Chemical Appendix mostly “superfluous” and that,

contrary to the statute’s plain language, it expands the ambit of the statute. However, the plain

language of the Chemical Appendix itself as well as the history and evidence in support of

Customs’ position, clearly counters these arguments.

       It is clear that the court has a duty to find the correct classification of merchandise. Jarvis

Clark Co. v. United States, 733 F.2d 873, 878 (Fed. Cir. 1984). To accomplish this, the court

employs a two-step process: first, construe the relevant tariff classifications; and second,

determine under which of the properly construed tariff headings the merchandise at issue falls.

Bausch & Lomb Inc. v. United States, 148 F.3d 1363, 1364-66 (Fed. Cir. 1998). The first step in

this process is a question of law, while the second step is a factual inquiry. Id. at 1366.

       The court must first examine the statutory language to divine the statutory meaning. See

United States v. Turkette, 452 U.S. 576, 580, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981). "Absent

a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded

as conclusive." Consumer Prod. Safety Comm’n et al. v. GTE Sylvania, Inc., 447 U.S. 102, 108,

64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980). It is assumed that Congress uses the language of

commerce in drafting tariff provisions, and such provisions "are to be construed in accordance

with their common and popular meaning, in the absence of a contrary legislative intent." E.M.

Chemicals v. United States, 920 F.2d 910, 913 (Fed. Cir. 1990) (citations omitted). "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,


                                                 12
dictionaries, and other reliable information sources." Brookside Veneers, Ltd. v. United States,

847 F.2d 786, 789 (Fed. Cir. 1988) (citations omitted).

       In addition, the General Rules of Interpretation ("GRI") of the HTSUS govern the proper

classification of merchandise. See Orlando Food Corp. v. United States, 140 F.3d 1437, 1439

(Fed. Cir. 1998). The HTSUS is divided into headings providing general categories of

merchandise, which are further divided into more particularized categories by subheadings. Id.

In relevant part, GRI 1 provides that "classification shall be determined according to the terms of

the headings and any relative section or chapter notes and, provided such headings or notes do

not otherwise require, according to [the subordinate GRI’s]" (emphasis added).

                                                 A
 The Chemical Appendix Does Not Refer to Color Preparations Solely by C.A.S. Registry
                            No., but by “Whatever Name Known.”



       Since the Chemical Appendix expressly refers to chemicals “by whatever name known”,

Ciba-Geigy’s plain language argument fails to constrain the Chemical Appendix to referring to

chemicals solely by C.A.S. No. The Chemical Appendix plainly employs the most inclusive

language possible, and moreover, even if the language was ambiguous, the supporting materials

and legislative history asserted by Customs clearly demonstrate such inclusiveness.

       Ciba-Geigy argues that “[d]efendant’s interpretation (that a preparation incorporating an

ingredient having a C.A.S. No. listed in the Chemical Appendix is included there) means that

preparations with multiple color ingredients, where the principal color is not listed but a second

color is, would be within the Chemical Appendix.” Plaintiff’s Memorandum of Law in

Opposition to Defendant’s Cross-Motion for Summary Judgment and in Reply to Defendant’s

                                                13
Opposition to Plaintiff’s Motion for Summary Judgement (“Plaintiff’s Response”) at 9. Plaintiff

maintains that if this were the case it would lead to profoundly absurd results. Specifically, Ciba-

Geigy asserts that since, in certain instances, the C.A.S. Registry No. referring to the primary

color ingredient of a color preparation and the Color Index Name of the total preparation are both

listed in the Chemical Appendix, two “unassailable” points are established: “(1) when the intent

was to include a preparation it was named; and (2) the C.A.S. No. of a chemical compound was

not intended to cover preparations incorporating the compound.” Id. at 8. Hence, Ciba-Geigy

inquires “why trade names of preparations are listed if all that is important is the C.A.S. No. of

one of their ingredients[?]” Id.

       The Chemical Appendix Note itself strongly suggests an answer to this question. It

provides that “[f]or the purpose of the tariff schedule, any reference to a product provided for in

this appendix includes such products listed herein, by whatever name known.” Chemical

Appendix Note (emphasis added). This is especially so as the Note also says: “[f]or

convenience, the listed articles are described (1) by their registry number with the Chemical

Abstract Service (C.A.S.) of the American Chemical Society, where available, or (2) by

reference to their common chemical name or trade name where the C.A.S. Registry number

is not available.” Id. (emphasis added). In addition, the language of Note 3, provides that a color

preparation falls within its ambit, only if it is not listed within the Chemical Appendix “either

under the name used to make Customs entry or under any other name by which it may be

known.”

       Furthermore, Ciba-Geigy’s reliance upon Platt v. Union Pac. R. Co., 99 U.S. 48, 58

(1878) and Ameliorex, Inc. v. United States, 565 F. 2d 674 (CCPA 1977), which stand for the


                                                 14
proposition that all the words within the statute must be given meaning, as well as Pennsylvania

Dep’t of Welfare v. Davenport, 495 U.S. 552, 562, 110 S. Ct. 2126, 109 L. Ed. 2d 588 (1990)

and Mitsubishi Int’l Corp. v. United States, 182 F.3d 884 (Fed. Cir. 1999), which advise against

interpreting a statutory provision in such a fashion as to render superfluous another provision, is

misplaced in this context. These cases have little bearing on the current situation where the

statutory provisions at issue are in the nature of a list, not a collection of clauses. Unlike a

collection of clauses, each with an individual purpose, where an item of a list is interpreted in

such a fashion so as to make another item redundant, the overall purpose of the statute is not

frustrated. Quite the contrary, a listing of items may be deliberately redundant to be more

inclusive. Hence these cases fail to undermine Customs’ reading of the Chemical Appendix.

       The language above could certainly envision and support instances where a color

preparation may be referred to redundantly by either its primary color ingredient or, for example,

by the color index name for the entire preparation, to maintain a broad inclusiveness. Moreover,

on numerous occasions, Customs clarified that its position is “if the main coloring ingredient of

an imported product is listed in the Chemical Appendix, then that imported product is described

by the Chemical Appendix and is subject to the higher duties intended by Congress.”

Defendant’s Response at 7 (emphasis added). It is, therefore, not at all clear to this court that the

plain language of the statute demands a specific pinpoint reference in order for a given color

preparation to be listed within the Color Appendix. Indeed, there is nothing to suggest that

Customs’ practice of asserting certain color preparations are included within the Color Appendix

via express reference to the main coloring ingredient runs counter to the broad and inclusive

language of the statute. To the contrary, if anything, it appears that the plain language of the


                                                  15
statute supports this approach. Therefore, Ciba-Geigy’s plain language argument fails.

       Moreover, although the relevant HTSUS subheadings, Note 3, and the Chemical

Appendix note all refer to “products,” that term does not differentiate between an ingredient and

some combination of ingredients, and to the extent that the term “product” is ambiguous, the

court is guided by the current legislative history and the other supporting material proffered by

Customs.3 Clearly, if the reference to “products” encompassed solely preparations and


       3
         Plaintiff, during oral argument, challenged Customs’ assertion that the subject language
and HTSUS heading 3204 encompass both chemical ingredients and chemical preparations. It
argued the assertion is illogical in light of the wording of other chapters in the HTUS, such as
chapter 29 which implicates the Chemical Appendix, but contains headings that expressly
exclude color preparations. However, in response to the court’s order of November 6, 2001 that
requested the parties to

       [c]ite any headings or subheadings within the Harmonized Tariff Schedule of the
       United States (“HTSUS”), other than heading 3204 and its included subheadings,
       that make a distinction between chemical ingredients and chemical preparations
       based on those chemical ingredients, and by direct or indirect operation of the
       Chemical Appendix either 1) specifically exclude chemical preparations or
       products but include chemical ingredients; or 2) specifically include chemical
       preparations or products but exclude chemical ingredients[,]

November 6, 2001 Order, Ciba-Geigy stated it “beleive[s] that there are no headings or
subheadings which satisfy the Court’s request.” Plaintiff’s Memorandum in Response to the
Court’s Order of November 6, 2001 at 2.
       Nonetheless, even in the absence of Plaintiff’s concession, the court is not persuaded by
the above argument, given the chapter notes to chapter 32 of the HTSUS which state:

       1. This chapter does not cover:
               (a)    Separate chemically defined elements or compounds (except those
                      of heading 3203 or 3204 . . . );

                                               ***

       3. Headings 3203, 3204, 3205 and 3206 apply also to preparations based on
       coloring matter . . . .

HTSUS, notes, chapter 32 (1990).

                                                16
combinations of individual chemical compounds, Customs’ approach, which asserts that an

express reference to a single coloring ingredient in the Chemical Appendix encompasses all color

preparations primarily based thereon, would be rendered untenable. Fundamentally, the common

meaning of a term may be gleaned from lexicographic authorities. Webster's Third New

International Dictionary of the English Language 1810 (1986), defines "product" as: 2a:

something produced by physical labor or intellectual effort . . . . The court finds the term

“products” alone does not clarify whether it refers to single ingredients, a combinations of

ingredients, or both. The court therefore turns to legislative history and the ITC publications for

guidance.



                                                 1
  The Expansive Nature of the Chemical Appendix is Revealed by the Legislative History
                  and its Underlying Purpose to Protect Domestic Industry.



       Customs bases the thrust of its arguments on the legislative history and the enforcement

history of the Chemical Appendix itself. This history demonstrates the Appendix was designed

to enumerate those chemicals that were imported during a given period prior to the establishment

of the Trade Agreements Act of 1979 (“the Act”), P.L. 96-39, Title II, Subtitle B, Section 223,

Subsection (d). As such, Customs avers the Appendix serves to identify the chemicals governed

by the older framework and the attendant higher tariff rates.

       Customs claims that the Chemical Appendix is an outgrowth of the Act, which

maintained tariff rates for “certain benzenoid chemicals and their products which at that time




                                                17
were subject to the American Selling Price (ASP) method of valuation.” Defendant’s Motion at

10 (citing 19 U.S.C. § 1041a(e)). The Act, although phasing out the ASP itself, preserved its

valuation methodology, as the accompanying Senate Report explains “‘[t]he duty increases have

been computed to provide for the collection of the same amount of duty on those products as is

currently collected under ASP.’” Id. at 10 (quoting Senate Report No. 96-249, 168, reprinted in

1979 U.S.C.C.A.N. 381, 554). However, the President, through Title V, Section 503(a) of the

Act, was authorized to lower tariff rates for chemical products outside this subset, provided these

products were neither imported into the United States before January 1, 1978 or produced in the

United States prior to May 1, 1978. Therefore the Appendix was created to identify the

benzenoid chemicals and products imported into the United States prior to the above period to be

subjected to the higher ASP duty rates. Customs also contends that the subject color preparations

“had been subjected to the ASP method of valuation and now, under the HTSUS, would be

subjected to the higher duty rate.” Id. at 11.

       The ITC originally established the Appendix, and USITC Publication 1073 and 1074

clarify the Appendix’s scope and operation. See Chemicals and Products Provided for in the

Chemical Appendix to the Tariff Schedules of the United States, USITC Publication 1073 and

1074 (1980) (“the Publications”).4 The relevant portion of USITC Publication 1073 provides:



       4
           USITC Publication 1073 is footnoted at the title of the Chemical Appendix as follows:

               1/ Most of the products listed in the Chemical Appendix are
               identified only by the applicable Chemical Abstracts Service
               (C.A.S.) registry number. The C.A.S. registry numbers applicable
               to imported chemicals and products may be obtained from USITC
               Publication 1073 - Chemical Appendix to the Tariff Schedules of
               the United States.

                                                 18
                                Introduction

Historical Background

       During the multilateral Trade Negotiations concluded in 1979
under the auspices of the General Agreements on Tariffs and Trade, the
United States agreed to apply more favorable duty treatment to certain
chemicals, classifiable in 47 specific basket categories of the Tariff
Schedules of the United States (TSUS), if those chemicals were of a type
which had neither been imported into the United States before January 1,
1978, nor produced in the United States before May 1, 1978.

        In order to make the determinations necessary to implement these
concessions the President requested the United States International Trade
Commission (USITC) to prepare a list of those chemicals in the 47
categories which had been imported, or produced in the United States,
before the stipulated dates.

       This list was prepared by the USITC and submitted to the
President. Pursuant to Presidential Proclamation, this list of
chemicals and products will be made the Chemical Appendix to the
Tariff Schedules of the United States and the 47 categories subject to
concession will be divided into new TSUS provisions which read:

      “Products provided for in the Chemical Appendix to the Tariff
Schedules”

       and

       “Other”

Products classifiable in one of these 47 provisions for “Other,” receive the
more favorable duty treatment agreed to in the MTN.

Purpose of this publication

        Most of the products listed in the new Chemical Appendix are
identified only by the applicable Chemical Abstracts Service (C.A.S.)
registry number. However, any single chemical frequently moves in
commerce under a number of different names, including trade names.
Consequently to facilitate the determination of the CAS registry
numbers applicable to imported chemicals and products classifiable in
the TSUS items listed below [the tariff provisions which provide for
“products provided for in the Chemical Appendix to the Tariff

                                    19
       Schedules”], this alphabetical listing which enumerates these
       chemicals and products by reference to their CAS name and other
       known chemical names and trade names, as well as their registry
       number, was prepared –


USITC Publication 1073 at 1-2 (emphasis added) (footnote omitted).

       The above elucidates the “by whatever name known” language of the Chemical Appendix

Note. Specifically, the “Purpose of this publication ” section in USITC Publication 1073 states

that the Appendix was established to “facilitate the determination of the CAS registry numbers

applicable to imported chemicals and products classifiable in the TSUS [the predecessor to the

current HTSUS]. . . ”, given the fact that “any single chemical frequently moves in commerce

under a number of different names, including trade names.” Id. at 1 (emphasis added).

Hence, this demonstrates the Chemical Appendix refers to completed products, in addition to

single chemicals, and it does so by CAS No., trade names, and other names.

       USITC Publication 1074 also supports this interpretation of the Appendix’s operation.

USITC Publication 1074 lists chemical products in order of C.A.S. No. and further lists

corresponding trade names under each registry number. Indeed, two of the subject color

preparations are listed by trade name under a corresponding C.A.S. No.5 See USITC Publication

1074 at 1 (“This Publication lists the C.A.S. registry numbers from the Chemical Appendix,

numerically, and provides several corresponding chemical or trade names for each C.A.S.

registry number listed.”). The listing of trade names adjacent to corresponding C.A.S. No. is

further evidence that the Chemical Appendix was intended to include products not solely based



       5
       These include Irgalite Red PRR, under C.A.S. No. 2814-77-9, and Irgalite Yellow
BAW, under C.A.S. No. 5102-83-0. See USITC Publication 1074 at 00305, 00365.

                                               20
on those registry numbers.

       In addition, the legislative history of the Chemical Appendix emphasizes the protectionist

thrust of the decision to preserve the ASP valuation method for certain classes of chemical

imports. Senate Report No. 96-249, reprinted in 1979 U.S.C.C.A.N. 381, 512 provides:

       Reason for the Provision. - The U.S. acceptance of the Customs Valuation
       Agreement will require the repeal of the ASP customs valuation for benzenoid
       chemicals (coal-tar products), certain plastic or rubber-soled footwear, canned
       clams, and certain knit wool gloves and mittens. The converted rates were
       determined by the administration based on studies by the U.S. International Trade
       Commission. The U.S. acceptance of the agreement will also require the repeal of
       section 402a of the Tariff Act of 1930, the basis for valuing items on the so-called
       “Final List.” This required an adjustment of the tariff rates on certain ball
       bearings and pneumatic tires.

       The nomenclature and rates of duty contained in sections 222 and 223 for
       certain merchandise currently subject to valuation under section 402a are
       designed to insure that U.S. industries producing the merchandise in
       question will receive protection under that nomenclature and rates of duty
       that is substantially equivalent to the protection they receive from present
       rates of duty applied on appraised value determined under present U.S. law.


Id. (emphasis added). The decision to preserve the ASP valuation method was clearly

driven by a desire to protect domestic industry from import competition.



                                                 2
     Though they Do Not Constitute Legislative History, the ITC Publications Provide
Probative and Persuasive Insight into the Scope and Operation of the Chemical Appendix.



       The Publications in conjunction with the current legislative history strongly support

Customs’ position. Moreover, the court notes that “the plain meaning rule . . . is not to be used

to thwart or distort the intent of Congress by excluding from consideration enlightening material


                                                21
from the legislative files.” 2 Norman J. Singer, Sutherland Statutory Construction § 48.01 at 413

( 6th ed. 2000) (quoting Federal Communications Commission v. Cohn, 154 F Supp. 899 (1957)).

It is clear from the cited legislative history that the Chemical Appendix was designed to protect

domestic industry from foreign competition. However, that legislative history does not detail the

practical scope of the Appendix in operation.

       Since the legislative history does not specifically define the term “by whatever name

known”, the court therefore turns to the Publications as a reliable source of information. Again,

the court notes that "[w]hen a tariff term is not defined in the HTSUS or its legislative history,

the term's correct meaning is its common meaning." Pillowtex Corp. v. United States, 171 F.3d

1370, 1374 (1999). To determine the common meaning of a tariff term, a court may consult

dictionaries, lexicons, the testimony in the record, and other reliable sources of information.

See JVC Co. of Am. v. United States, 62 F. Supp. 2d 1132, 1137 (1999), aff’d, 234 F.3d 1348

(Fed. Cir. 2000). Moreover, although the Publications may not inherently qualify as legislative

history, since it is undisputed that the ITC was responsible for establishing the Chemical

Appendix, they are nonetheless persuasive. Hence, in the vacuum left by the legislative history,

the court finds that the Publications’ description of the Appendix’s operation and scope is a

logical extension of the given legislative intent.

       Ciba-Geigy attacks Customs’ reliance on the Publications. It first argues that the current

Chemical Appendix cannot be deemed equivalent to the listings contained in the Publications as

there is a significant degree of incongruence. Specifically, Ciba-Geigy stresses the absence of

some of the C.A.S. numbers listed within the Publications from the current Appendix. See

Plaintiff’s Response at 6-7. On this basis, it concludes that “[t]hese publications may have been


                                                 22
points of progression in the development of the Chemical Appendix. They are not the final

product and most certainly (as agency publications) do not constitute legislative history, as

defendant implies.” Id. at 7.

        Indeed, Customs does not dispute the fact that there are C.A.S. numbers within the

publications that are not contained within the Appendix, but asserts that this fact is irrelevant to

its analysis. Moreover, Customs concedes that “during the intervening years [between the

publications and the current Appendix], the Chemical Appendix has been modified by the

deletion of C.A.S. numbers and common chemical names and trade names.” Defendant’s

Response to Plaintiff’s Opposition to Defendant’s Cross Motion for Summary Judgment

(“Defendant’s Response”) at 6. However, as Customs clarifies, “the more important aspect of

the ITC publications is that they demonstrate that the C.A.S. registry numbers listed in the

Chemical Appendix represent not only the single chemical colorant, but all products by which

that colorant is known.” Id. It is conceivable and reasonable that the listings within USITC

Publications 1073 and 1074 served as prototypes for the Chemical Appendix, which was

subsequently refined, without overriding that fundamental premise. As such, the incongruence

between the Appendix and the publications is irrelevant to the significance of the publications

and fails to undermine Customs’ premise.

       Since the parties have presented no contrary evidence or legislative history, the ITC

publications satisfactorily and adequately support the Government’s position.




                                                 23
                                                  3
  Ciba-Geigy’s Own Practices Appear to Coincide with the Government’s Reading of the
                                       Chemical Appendix.


       Ciba-Geigy’s commercial practices also support this reading. Ciba-Geigy, in fact,

identifies its own products by the color index names of the primary coloring matter and does not

constrain itself to the C.A.S. Registry Numbers. See Defendant’s Response at 4, Defendant’s

Exhibit F. This has significant consequences with regard to the Chemical Appendix. For

instance, “even though Irgalite Rubine 4 BP contains two colorants . . . , it is identified [by Ciba-

Geigy] by the Color Index Name of the principal colorant, Pigument 57:1 [sic],” id. (citing

Schedule 1 to Plaintiff’s Motion), and “[w]hile the color index name[] Pigment 57:1 . . . [is] not

listed in the Chemical Appendix, the corresponding C.A.S. registry number[] for [this] colorant[]

[is].” Id. Ciba-Geigy further supports this approach, by having failed to contest Customs’

classification of color preparations that were provided for on an eo nomine basis in the HTSUS

tariff headings by Color Index Name. Id. As such, Pigment Yellow 109 was classified in this

fashion under subheading 3204.17.10, which “provides for many Pigment Yellows, including

Pigment Yellow 109.” Id. at 4 (citing HTSUS (1991) at 32-10).

       Moreover, many of Ciba-Geigy’s products were subject to pre-classification rulings,

where its own input was solicited by Customs in ultimately choosing the higher duty tariff

provisions. “Customs agreed with most of Ciba-Geigy’s proposed classifications, including

classification of much of the merchandise in issue in the assessed provisions of subheadings

3204.12.50, 3204.17.50 and 3204.19.19.” Defendant’s Response at 14 (citing Defendant’s

Exhibit M, copy of PC 866947 (Pre-classification Ruling) (September 20, 1991)). Indeed, “Ciba-


                                                 24
Geigy itself proposed classification in the provisions covering merchandise which is listed in the

Chemical Appendix.” Id.



                                                  4
     Customs’ Reading of the Chemical Appendix is Supported by the Language of the
                 Appendix, the Legislative History, and the ITC Publications.


       The Government’s interpretation of the Chemical Appendix flows from the plain

language of the statute and affords all language therein meaning. The Appendix expressly

provides that it may refer to a chemical compound or preparation “by whatever name known.”

This broad range is further clarified by the ITC publications in light of the given legislative

intent. Therefore, 1) the Chemical Appendix can refer to a color preparation by virtue of its main

color ingredient via C.A.S. Registry Number, by trade name (Microlith, Unisperse, etc.), by

Color Index Name and number, or by chemical name; 2) the Chemical Appendix was designed to

encompass discreet compounds as well as the color preparations based upon such compounds;

and 3) as a result of the first two points, the Chemical Appendix may refer to individual

compounds and the preparations based thereon redundantly.



                                                  B
 The Presence of Non-Color Ingredients Does Not Impact the Classification of the Subject
                                       Color Preparations.


       The parties are clearly divided as to the significance of non-color ingredients in

classifying the subject color preparations. As discussed, Ciba-Geigy asserts that non-color

ingredients bear significantly on the classification of the color preparations and asserts the de

                                                 25
minimus rule both qualitatively and quantitatively. Ciba-Geigy further asserts that “[d]efendant

cites no statutory language which indicates that preparations containing coloring matter (dyes or

pigments) are to be classified by disregarding the fact they are preparations and not merely the

dye or pigment component.” Plaintiff’s Reply at 11. Ciba Geigy relies on the court’s decisions in

Alcan Aluminum, Inc. v. United States, 165 F.3d 898 (Fed. Cir. 1999), and BestFoods v. United

States, 110 F. Supp. 2d 965 (CIT 2000), rev’d, 260 F.3d 1320 (Fed Cir. 2001), in support of

applying the de minimus rule, the latter providing:

       There can be no doubt that absent explicit expression of legislative intent to the
       contrary, as a matter of fundamental fairness and reasonable statutory
       interpretation, there is an implied recognition of the de minimus principle under
       the governing statute; indeed, absent explicit legislative intent to the contrary, a
       very heavy burden falls on a party which insists that the purpose of the underlying
       statute compels abandonment of the de minimus rule.

Plaintiff’s Motion at 13 (quoting BestFoods, 100 F. Supp. at 972).


                                                  1
  The De Minimus Rule Does Not Apply to Classification of the Color Preparations at the
                                     Six-Digit HTSUS Level.


       Customs, however, avers that the presence of non-color ingredients cannot and does not

affect classification of the color preparations at the 6-digit HTSUS level, as “it is the presence

and nature of the coloring matter in each of the products that mandates classification in Heading

3204.” Defendant’s Response at 10. Customs points out the fact that Ciba-Geigy does not

dispute the fact the color preparations should be classified within heading 3204 and, more

specifically, under 3204.12, 3204.17, 3204.19 at the 6-digit level. Id. Customs correctly argues

that the de minimus rule does not bear on this level of classification, for “[i]f it did, [Ciba-Geigy]


                                                 26
could not at the same time agree that 3204.12, 3204.17 and 3204.19 are the correct classifications

at the six digit level.” Id. Furthermore, Plaintiff appears to concede this fact, stating “the

presence of non-color ingredients can require classification of a preparation, even a preparation

whose principal purpose is to impart color, outside heading 3204.” Plaintiff’s Response at 13

(citing BASF Wyandotte Corp. v. United States, 11 CIT 652, 674 F. Supp. 1477, aff’d, 855 F.2d

852 (Fed. Cir. 1988)). Therefore the court dispenses with any related inquiry at the 6-digit

HTSUS level.

       Nonetheless, Ciba-Geigy stresses that non-color ingredients can affect classification even

within HTSUS heading 3204 (at the 8-digit level) by determining whether or not the color

preparation is listed within the Chemical Appendix. Ciba-Geigy clarifies that its “position [is]

that the presence of non-color ingredients must be considered in determining whether the subject

preparations are listed in the Chemical Appendix.” Plaintiff’s Response at 13. Furthermore,

Ciba-Geigy asserts that “[e]ach of the subject preparations incorporates non-color ingredients

which are not de minimus.” Plaintiff’s Motion at 14. Hence, as each preparation is a collection of

chemical compounds, many of which perform functions integral to the overall performance of the

preparation, under Ciba-Geigy’s logic, none would be within the Chemical Appendix.

       Ciba-Geigy stresses the functional qualitative and quantitative significance of these non-

color ingredients which “aid flow, antifreeze, binders, biocides, defoamers, dispersing agents,

extenders, solvents, stabilizers, and surface treatments," and are "integral elements of the makeup

of the subject preparations." Id. at 15. For instance, Ciba-Geigy cites Corporacion Sublistatica,

S.A. v. United States, 1 CIT 120, 511 F. Supp. 805 (1981), and BASF, 11 CIT 652, as instances

where the court recognized the significance of binders and solvents in an incorporating substance


                                                 27
such as ink. In addition, citing the decision in General Motors Corp. v. United States, 15 CIT

372, 770 F. Supp. 641 (1991), rev’d on other grounds, 976 F.2d 716 (Fed. Cir. 1992), as an

example regarding paint, Ciba-Geigy concludes that “ingredients such as stabilizers, extenders,

additives to aid flow, all of which affect surface quality, as well as solvents and binders, which

are essential in paint as ink applications, are not de minimus from the perspective of function.”

Id. at 17. Secondly, Ciba-Geigy emphasizes the fact that the non-color compounds are present in

significant quantities as well, stating that “in the case of 24 of the 56 preparations at issue, they

are present in quantities greater than the coloring matter.” Id.


                                                   2
The De Minimus Rule Should Not be Applied to Vitiate the Statute’s Underlying Purpose.



       The presence of the non-color ingredients may be both qualitatively and quantitatively

significant, however their presence alone cannot place the preparations under the tariff

subheadings espoused by Plaintiff. Moreover, the Plaintiff’s reliance on Alcan and BestFoods in

support of applying the de minimus rule appears misplaced in light of the current legislative

intent as well as the established history and purpose of the Chemical Appendix.

       Although the court in Alcan forbade Customs from abandoning the de minimus rule, it

cautioned that

       Whether a particular activity is a de minimus deviation from a prescribed standard
       must, of course, be determined with reference to the purpose of the standard . . . .
       Application of de minimus is particularly important in cases such as the one at
       hand, where stark, all-or-nothing operation of the statutory language would have
       results contrary to its underlying purposes.

       ....


                                                  28
       In contrast, Customs' proposed abandonment of the de minimus principle in this
       case engenders results at odds with the statutory purpose.


Alcan Aluminum, 165 F.3d at 903 (quoting Wisconsin Dep’t of Revenue v. William Wrigley, Jr.,

Co., 505 U.S. 214, 232, 112 S. Ct. 2447, 120 L. Ed. 2d 174 (1992)).

       Hence although the de minimus rule is a major tenet of statutory interpretation, it is not

an absolute principle and its application must be considered in light of the given statute. In

Alcan, the court’s overriding goal was to preserve the underlying purpose of the statute.

Therefore it invoked the de minimus rule to prevent a contrary outcome resulting from hyper-

literal application of the statutory language.

       Similarly, in order to preserve the underlying statutory purpose, the Federal Circuit

reversed the lower court’s holding in Bestfoods, concluding that a Customs regulation

permissibly barred any de minimus exception for a certain class of products, despite the fact the

same regulation expressly provided such exception for other products. See Bestfoods v. United

States, 260 F. 3d 1320 (Fed. Cir. 2001). In BestFoods, the primary issue before the court

concerned the operation of Customs regulation 19 C.F.R § 102.13 (2000), promulgated under

the federal marking statute, 19 U.S.C. § 1304(a) (1994). The marking statute expressly delegates

to the Secretary of the Treasury the authority to promulgate regulations implementing the

marking statute, in general, and as it specifically applies to goods imported from a North

American Free Trade Agreement (“NAFTA”) country. See 19 U.S.C. §§ 1304(a) (1999) and

1304(k) (Supp. 2001); 19 U.S.C. § 3314(b) (1994). The plaintiff in BestFoods claimed that

section b of the regulation, 19 C.F.R § 102.13(b) (2000), which did not provide the 7% de

minimus exception for agricultural products that was provided for other products, was arbitrary


                                                 29
and capricious. BestFoods, 260 F. 3d at 1323. In other words, under 19 C.F.R § 102.13(b), all

agricultural goods containing foreign-source components would have to be marked accordingly.

As discussed, Ciba-Geigy relies on the lower court’s holding which invalidated the regulation for

failure to provide the de minimus exception for goods falling under section (b).

       Ultimately however, the Federal Circuit upheld the regulation, reasoning that it was

consistent with the treatment of agricultural products under both NAFTA and the federal marking

statute. Id. at 1326. The Federal Circuit recognized Customs’ decision to withhold a de minimus

exception in one instance and expressly grant one in another as a codification of its past practice.

In addition, the Federal Circuit recognized this decision as a valid attempt to harmonize

Customs’ implementation of the federal marking statute with the country of origin rules for

preferential tariff treatment under NAFTA. Taking note of the fact the federal marking statute

itself did not provide for any de minimus exception, the Federal Circuit stated:

       [T]he limited de minimus exception in the regulations corresponds with Customs'
       past practice . . . .

       ....

               In addition, withholding the de minimus exception from agricultural
       products tends to harmonize the country of origin rules for marking purposes with
       the country of origin rules for preferential tariff treatment under the NAFTA. The
       country of origin rules for preferential tariff treatment, while providing a de
       minimus exception for components comprising less than 7% of the value of the
       overall good, withhold this treatment from agricultural products. Customs' action
       in establishing a de minimus rule, for purposes of the NAFTA marking rules, that
       closely tracks the de minimus rule for preferential tariff treatment under the
       NAFTA is not arbitrary.


Id. at 1324-25 (footnotes omitted).

       Therefore the de minimus rule cannot be mechanically applied where doing so would


                                                30
interfere with the purpose of the underlying statute. This is especially true given that "the master

rule in the construction of tariff acts, as of other statutes, is to interpret them so as to carry out the

legislative intent." United States v. Clay Adams Co., 20 CCPA 285, 288 (1932); see also Sturm,

Customs Law and Administration, § 51.3 at 15 (citations omitted). Hence the Federal Circuit’s

decision in BestFoods further underscores the fact that the de minimus rule is not an absolute

principle, but rather that it must yield and conform to the purpose of the underlying statute.

Morever, the decision supports Customs’ selective employment of a de minimus exception in

order to best effectuate a statutory scheme. The BestFoods situation is paralleled here. The

Chemical Appendix was intended to protect certain industries by preserving the tariff scheme in

place prior to the Act. Towards that end, the language of the Chemical Appendix was structured

to be inclusive and to refer to base chemicals and products by C.A.S. Registry Number or by

“whatever name known.” Given these facts, the de minimus rule cannot be applied as Ciba-

Geigy demands. As Defendant states, “[t]o accept Ciba-Geigy’s de minimus argument would

vitiate the Chemical Appendix, because, as is evident from the merchandise in issue, coloring

matter is frequently combined with other non-color ingredients such as additives to aid flow,

antifreeze, binders, brocides, defoamers, dispersing agents, extenders, solvents, stabilizers and

surface treatments involved here . . . . That result surely was not intended by Congress and

should not be accepted by this Court.” Defendant’s Motion at 20 (citing Exhibits A & D). Since

the Plaintiff’s approach would ensure that “virtually no coloring matter would be subject to the

applicable higher rate”, id., the court cannot adopt that approach in contravention of the

legislative intent. Moreover, the court concludes that Customs’ decision to withhold the de

minimus exception under these circumstances is a legitimate means of effectuating the statutory


                                                   31
intent.



                                                   C
   The Only Inquiry Required to Classify the Subject Color Preparations is Whether the
 Main Ingredient of the Preparation is Listed Within the Chemical Appendix by Whatever
                                            Name Known.


          Given the above analysis, the court’s inquiry is greatly simplified. In keeping with the

Chemical Appendix’s established function (to determine whether the color preparation was

imported into or produced within the United States prior to the critical dates), Customs asserts

that the determination of a color preparation's importation date is governed by the Chemical

Appendix Note "(1) by reference to their registry number with the Chemical Abstract Service

(C.A.S.) of the American Chemical Society where available, or (2) by reference to the common

chemical name or trade name where the C.A.S. registry number is not available. For purposes of

these schedules, any reference to a product provided for in this appendix includes such

products listed herein, by whatever trade name known.'" Defendant’s Motion at 14 (quoting

Chemical Appendix Note, HTSUS.) (emphasis in original motion). As such, “[t]he coloring

matter in all but four of the imported products was unquestionably imported or produced in the

United States in the relevant time periods because not only their C.A.S. Number, but also in

many cases their Color Index Name and/or Number is listed.” Defendant’s Motion at 19.

Therefore these 52 color preparations are correctly dutiable under the higher duty tariff

provisions.




                                                  32
                                              VI
                                       CONCLUSION


       For the foregoing reasons, Defendant's Cross-Motion For Summary Judgment is granted

in full, and Plaintiff's Motion For Summary Judgment is denied.



                                            __________________________
                                            Evan J. Wallach, Judge


Dated: November 16, 2001
       New York, New York




                                              33