author: CARMAN, Judge:

text:
    ARBOR FOODS, INC., Plaintiff, v. UNITED STATES, et al., Defendants.
    Court No. 85-1-00102.
    United States Court of International Trade.
    March 13, 1985.

      Graubard, Moskovitz & McCauley, Washington, D.C. (Alfred R. McCauley, Washington, D.C., on motion); Dykema, Gossett, Spencer, Goodnow & Trigg, Washington, D.C. (Norton Cutler, Washington, D.C., on motion), for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Commercial Litigation Branch, New York City (Michael P. Maxwell and Veronica A. Perry, New York City, on cross-motion) (Beth Brotman, Office of Asst. Chief Counsel, Intern. Trade Litigation, U.S. Customs Service, of counsel on cross-motion), for defendants.
   MEMORANDUM OPINION AND ORDER

CARMAN, Judge:

Plaintiff moves for summary judgment, or, in the alternative, a preliminary injunction. The defendants cross move for summary judgment, or, in the alternative, to dismiss for failure to state a claim.

Plaintiff has previously appeared before this Court seeking similar relief. In Arbor Foods, Inc. v. United States, 8 CIT -, 600 F.Supp. 217 (1984) (Arbor I), the Court denied plaintiffs application for preliminary injunctive relief and dismissed the action. The Court declined to exercise its subject-matter jurisdiction under 28 U.S.C. § 1581(i) (1982), perceiving an “obviat[ion] [of] the usual procedure of administrative protest.” Arbor I, 8 CIT at -, 600 F.Supp. at 218. The plaintiff has now exhausted its administrative remedies before the United States Customs Service (Customs) and appears here via the traditional jurisdictional avenue, 28 U.S.C. § 1581(a). Oral argument on the motion was held on February 21, 1985.

The relevant facts have been stipulated by the parties and are not in issue. On June 28, 1983, the President issued Proclamation 5071 which placed a quota restriction on sirup and sugar blends classifiable under items 183.05, 183.01, 156.45, and 155.75 of the Tariff Schedules of the United States (TSUS) and containing over 65 percent sugar by dry weight. Subsequent to the issuance of the Proclamation, plaintiff began a screening operation at its Toledo, Ohio warehouse, which also qualified as a foreign trade zone.

Within the foreign trade zone, pure sugar from Canada was brought in and mixed with corn sirup solids of United States origin. The resulting mixture was then introduced into the Customs Territory of the United States. This introduction was accomplished by simply moving the mixture across a yellow line in the warehouse of plaintiff which marked the boundary between the zone and the Customs territory.

Once across the line, the mixture was screened to separate out the sugar component. The corn sirup solids were then brought back into the foreign trade zone for use with the next batch of Canadian sugar. Between July of 1983 and November of 1984, plaintiff imported 41,189 tons of dry mixtures containing 65 percent or less sugar and 24,950 tons of a sugar-corn sirup solids mixture.

On November 6, 1984, Customs transmitted telex 12003 which stated that only sugar blends possessing a “valid commercial identity and which are actually used in commerce in the United States” would be exempt from a constructive segregation. The effect of this notice was to place all sugar blends not meeting the standard within the ambit of the zero-quota provisions for pure sugar. Soon thereafter, all rulings issued to plaintiff prior to November 6, 1984, were revoked by Customs.

Customs then denied entry to 360 tons of the sugar/corn sirup solids blend as well as other blends. In addition, plaintiff allegedly was unable to stop twelve railcars of sugar in transit and was forced to resell at cost for a total loss of $67,100.

Plaintiff appeared before this Court pursuant to 28 U.S.C. § 1581(i) (1983) in December of 1984. The Court denied the requested relief and dismissed the case. Plaintiff then protested its denied entries. These protests were denied on January 4 and January 11, 1985.

DISCUSSION

Plaintiffs arguments in support of its motion for summary judgment, or, in the alternative, for a preliminary injunction can be expressed as follows: (1) Customs’ reliance on Headnote 7 of the General Head-notes and Rules of Interpretation of the Tariff Schedules of the United States (TSUS) is in excess of its authority; (2) the application of Headnote 7 is discriminatory in effect; (3) Customs has changed a “position” within the meaning of 19 C.F.R. § 177.10(c)(2) (1984), but has failed to comply with the mandatory prior notice and comment procedures outlined in the Customs Regulations; and, (4) if the Court finds that genuine issues of material fact exist, preliminary injunctive relief ought to be afforded in order to prevent further business injury. The government responds in kind to these arguments, and also raises an “imminent mootness” issue.

I. GENERAL HEADNOTE 7, HEADNOTE 3 AND 19 U.S.C. § 1500

By telex of November 6, 1984, Customs’ Office of Regulations and rulings advised that all “purported sucrose ‘blends’ will be considered commingled merchandise, pursuant to General Headnote 7, TSUS.” The telex further stated that “[sjucrose blends which possess a valid commercial identity and which are actually used in commerce in the United States ... shall be exempt from treatment as commingled merchandise.” General Headnote 7, TSUS, referred to in the telex, provides in part:

Commingling of Articles., (a) Whenever articles subject to different rates of duty are so packed together or mingled that the quantity or value of each class of articles cannot be readily ascertained by customs officers (without physical segregation of the shipment or the contents of any entire package thereof)
the commingled articles shall be subject to the highest rate of duty applicable to any part thereof unless the consignee or his agent segregates the articles pursuant to subdivision (b) hereof.
(e) The provisions of this headnote shall apply only in cases where the schedules do not expressly provide a particular tariff treatment for commingled articles.

When the parties were before this Court in December of 1984, it appeared that Customs had relied solely on General Headnote 7 in promulgating the “valid commercial identity” standard. It is in this respect that plaintiff claims Customs exceeded its authority in issuing the telexes. Indeed, General Headnote 7 does not require nor even appear to authorize such a regulatory standard. But a statutory footing in Headnote 3 has been persuasively presented.

Prior to this controversy, plaintiffs mixture of sugar and corn sirup solids was classified under item 183.05, TSUS, which covers

Edible preparations not specially provided for (including prepared meals and individually packaged):
Other:
Other.10% ad val.

“Edible preparations,” referenced in item 183.05, is defined in the subpart headnote: “The term ‘edible preparations’ in [item] ... 183.05 embraces only substances prepared and chiefly used as a human food or as an ingredient in such food_” Headnote 3, Schedule 1, Part 15, Subpart B.

Defendants correctly note that a chief use provision is incorporated into item 183.-05, by operation of Headnote 3. Headnote 10(e)(i), General Headnotes and Rules of Interpretation, TSUS (1984), further clarifies that chief use is “the use which exceeds all other uses (if any) combined.” The chief use is measured, of course, at the time of importation. United States v. Baltimore & Ohio R.R. Co., 47 C.C.P.A. 1, 3-4 (1959). Thus, although Customs is mandated to consider merchandise in its imported condition, United States v. Citroen, 223 U.S. 407, 414-15, 32 S.Ct. 259, 260, 56 L.Ed. 486 (1912), the doctrine of chief use requires that the items be followed into the commerce of the United States. As such, Customs has every right to demand evidence of the possible uses of the product. See Advance Solvents & Chemical Corp. v. United States, 34 C.C.P.A. 148, 154 (1947). This can be established, among other means, through affidavits from ultimate purchasers or importers’ testimony; further, per the telex, a demonstration of actual use was all that was necessary. But Arbor claims that knowledge of chief use is beyond its ken. This will not do. Importers “have every incentive for knowing the uses to which their wares are or may be put.” Klipstein v. United States, 1 Ct. Cust.Appls. 122, 124 (1910); see Manton Cork Co. v. United States, 65 Cust.Ct. 241, 249 (1970) (Re, J.). Drawing upon these principles, the Customs Service simply invoked its authority under 19 U.S.C. § 1500 (1982), to change a classification. The after-entry screening process, which plaintiff claims was Customs’ target, was not relevant. Customs’ new knowledge that plaintiff’s entries were not truly “edible preparations” triggered the change. Thus, despite plaintiff’s vehement protestations that a classification matter is not involved here but rather “a test of the legality of the end Defendants realized — the exclusion from entry of Plaintiff’s merchandise,” Plaintiffs Memorandum in Opposition at 1-2, the Court views the matter as a change in classification which resulted in quota provisions becoming applicable. This is not uncommon. See Wear Me Apparel Corp. v. United States, 1 CIT 60, 61 (1980).

In short, Customs was within its authority under 19 U.S.C. § 1500 (1982), in demanding proof of valid commercial identity as one means of establishing chief use before allowing entry of plaintiffs mixtures. Customs rightfully considered such a showing highly pertinent to the issue of chief use as an edible preparation.

II. HAS CUSTOMS “CHANGED A POSITION” UNDER 19 C.F.R. § 177.10(c)(2)?

Section 177.10(c)(2) of the Customs Regulations provides in part:

Before the publication of a ruling which has the effect of changing a position of the Customs Service and which results in a restriction or prohibition, notice that the position (or prior ruling on which the position is based) is under review will be published in the Federal Register and interested parties given an opportunity to make written submissions with respect to the correctness of the contemplated change.

As is evident from the regulation, if Customs has established a “position” with respect to a particular classification matter, and that position is sought to be changed .with the effect of prohibiting or restricting merchandise, then a notice that the change is being contemplated must be published in the Federal Register. Plaintiff claims that a series of ruling letters, oral assurances from various Customs officials, and remissions of liquidated damages claims re-suited in the establishment of a “position” with regard to plaintiffs merchandise, Therefore, according to plaintiff, Customs was obliged to publish a notice and afford opportunity for comment before the “position” could be changed.

For several reasons, however, plaintiff’s contentions must fall. First, the exact merchandise in issue here was never specifically covered by a letter ruling. Thus, Customs could not have staked out a position with respect to the mixture. Also, even if the Court were to consider plaintiffs assertions, they would not amount to a “position” on behalf of the Customs Service pursuant to 19 C.F.R. § 177.10(c)(2). Customs’ establishment of a “position” would be along the same lines as that of an “established and uniform practice” under 19 U.S.C. § 1315(d) (1982). In that respect, such a “position” or “practice” would require uniform liquidations among the many ports over a period of time. See Heraeus-Amersil, Inc. v. United States, 8 CIT -, 600 F.Supp. 221, 225 (1984). The acts by Customs which plaintiff claims amounted to a “position” fall short of that rigorous standard. Further, Customs never expressly found a position to exist.

The Court would also note that on December 14, 1984, the Secretary of the Treasury, through the Office of Regulations and Rulings at Customs Headquarters, issued a finding that an established and uniform practice did not exist with respect to blends of 50 percent sugar and 50 percent sirup solids. As the Court noted in Her-aeus-Amersil, once the Secretary exercises his discretion, his decision is normally beyond review. See Heraeus-Amersil, 8 CIT at -, 600 F.Supp. at 224.

Plaintiff’s argument that a position existed under 19 C.F.R. § 177.10(c)(2) must, accordingly, fail.

III. IMMINENT MOOTNESS

On January 28, 1985, President Reagan issued Proclamation 5294, which imposed additional quota restraints on sugar products. The Proclamation covers “articles containing sugars ... whether or not mixed with other ingredients.” Both parties admit that plaintiff’s imported merchandise is subject to Proclamation 5294. The parties have estimated that the quota will close on approximately March 15, 1985.

Defendants therefore argue that the Proclamation “will soon moot out this controversy.” Defendant’s Opposition, at 17. The Court has little difficulty in finding that this controversy is not moot.

The judicial power of the United States extends to cases or controversies. U.S. Const, art. Ill, § 2, cl. 1. Until the quota closes, this Court could render effective relief to plaintiff by granting its proposed remedy. Indeed, the Supreme Court has rejected the “impending mootness” argument. See Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 692 n. 32, 99 S.Ct. 3055, 3078 n. 32, 61 L.Ed.2d 823 (1979). The Court, therefore, sees fit to rule in the case despite the imminence of the quota.

CONCLUSION

Through the uncontroverted facts in this case, no genuine issues of material fact are apparent to the Court. Accordingly, summary judgment is appropriate. Summary judgment in favor of the defendants is in order.

A judgment will enter accordingly.

      . Defendant, in its reply, has pointed out that Customs recently allowed Arbor to make nine entries of its sugar/corn sirup solids mixture upon proper documentation of valid commercial identity. As indicated earlier, while the Court does not endorse this standard, it is clear that evidence of "commercial identity” is highly pertinent to "chief use.”

      . Plaintiff also claims that Customs has treated it in a discriminatory fashion. First, plaintiff asserts that if a mixture contains more than 65 percent sugar, Customs does not require proof of commercial identity before placing the merchandise in item 183.05. Second, plaintiff maintains that Customs does not apply Headnote 7 to mixtures that have a valid commercial identity but are later screened. The Court finds these arguments completely unpersuasive. If merchandise contains more than 65 percent sugar, there is no dispute — classification or otherwise. Such goods are clearly prohibited from entry. Customs need not carry out useless formulations in such a case. Also, where a mixture is shown to have a valid commercial identity and is therefore permitted entry, chief use as an edible preparation is assuredly present.

      . Regarding preliminary injunctive relief, the Court in Arbor I indicated that it found the injury alleged by plaintiff to be speculative and insufficient to warrant the extraordinary remedy of a preliminary injunction. See Arbor I, 8 CIT -, 600 F.Supp. at 220 (citing Manufacture de Machines du Haut-Rhin v. Von Raab, 6 CIT -, 569 F.Supp. 877, 881, appeal dismissed, No. 83-1341 (Fed.Cir. Dec. 29, 1983)). The nature of the injury, damage to goodwill and other similar allegations, which the Court previously found unsatisfactory, remains so. In addition, as discussed above, plaintiff has not succeeded on the merits. Accordingly, a preliminary injunction cannot issue.


source: Caselaw Access Project

author: WATSON, Judge.

license: Public Domain

text:
    MATSUSHITA ELECTRIC INDUSTRIAL CO., LTD., et al., Plaintiffs, v. The UNITED STATES, et al., Defendants.
    Court No. 81-07-00901.
    United States Court of International Trade.
    March 22, 1985.
   Memorandum Opinion and Order

WATSON, Judge.

Plaintiffs Sanyo Electric Co., Ltd., Sanyo Electric Inc., and Sanyo Manufacturing Corp. (Sanyo) and plaintiff Sharp Electronics Corporation (Sharp) after the original decision of this Court, favorable to mov-ants was reversed in Matsushita Electric Industrial Co., Ltd. v. United States, 750 F.2d 927 (Fed.Cir.1984) have now moved to renew their motions for review of an administrative determination based upon the record made before the agency.

Plaintiffs contend that this Court’s original decision, Matsushita Electric Industrial Co. v. United States, 6 CIT —, 569 F.Supp. 853 (1983) overturned a determination of the International Trade Commission on broad grounds of lack of substantial evidence but did not reach issues that were unique to movants. According to plaintiffs, these particular issues because they were not addressed by the appellate court, survive for further consideration by this Court, even though they were not raised on appeal by movants.

The Court finds that these motions must be denied as contrary to the sound operation of the judicial process, destructive of judicial economy and inimical to the speedy resolution of judicial disputes.

It is a common occurrence for a court to decide a case on a fundamental ground and in so doing to refrain from reaching alternative issues. However, if there is opportunity to raise such issues on appeal, that opportunity must be seized. c.f Raxton Corp. v. Anania Associates, Inc., 668 F.2d 622 (1st Cir.1982) (decision ultimately resting on principles of law of the case).

[I]t is not open to question that an appel-lee ... should in supporting a judgment below, challenge any finding or conclusion or absence thereof that it deems error as revealed by the record (citations omitted). The presentation of all viable justifications of a judgment insures that simpler and speedier basis for decision are not overlooked, that occasions for remand are minimized, and that issues that may have appeared as independent alternatives to a trial court can be considered as mutually supporting interdependent parts of an appellate decision. Raxton Corp. v. Anania Associates, Inc., at 624.

On appeal, plaintiffs could have argued that assuming this Court’s original decision was in error, the case should be remanded for a determination of narrow issues, not addressed previously by this Court which are unique to Sanyo and Sharp.

[I]t is likewise settled that the appellee may without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon a matter overlooked or ignored by it.... U.S. v. American Ry. Exp. Co., 265 U.S. 425, 435, 44 S.Ct. 560, 564, 68 L.Ed. 1087 (1923).

It should also be noted that it is within the realm of an appellate court’s powers to resolve alternative issues on its own initiative. See F.L. Smidth & Co. v. United States, 56 CCPA 77, 86 C.A.D. 958, 409 F.2d 1369 (1969). See also William B. Tanner Co., Inc. v. Wioo, Inc., 528 F.2d 262, 269 (3rd Cir.1975).

Whether an appellee raises the issue on its own initiative or the appellate court chooses to do so is unimportant. In either event the matter would have been developed in the most efficient way. The method chosen by plaintiffs here, represents an unacceptable prolongation of the process of review begun almost four years ago and should not be encouraged.

In denying these motions the Court is not abdicating its jurisdiction. This Court is simply recognizing that within the context of its jurisdiction in the area of international trade dispute resolution, that delay and its corollary, uncertainty, are repugnant to the public interest.

In enunciating this principle the Court is aware that the appellate court may choose to remand an issue to this Court, rather than resolve it at the appellate level. In that instance the Court would be bound to accept jurisdiction. However, when an appellee has an opportunity to bring alternative grounds that are supported in the record to the attention of the appellate court, it must do so or risk losing the opportunity of having it addressed by that court. A subsequent application to this Court to re-open a case involving a summary disposition must normally be looked on with disfavor.


author: FORD, Judge:

text:
    SEASIDE REALTY CORP., Plaintiff, v. UNITED STATES, Defendant.
    Court No. 84-12-01778.
    United States Court of International Trade.
    April 3, 1985.

      Mandel & Grunfeld, New York City (Steven P. Florsheim and Frank J. Desiderio, New York City), for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., David R. Cohen, Director, Commercial Litigation Branch (Kevin C. Kennedy and Francis J. Sailer, Washington, D.C.), for defendant.
   Memorandum Opinion and Order

FORD, Judge:

The factual background in this action establishes that on August 6, 1984 the United States Customs Service in San Juan, Puerto Rico seized sixty-two sea containers of green unroasted coffee, alleged to be valued at $5,000,000. The government on September 9, 1984 filed a civil action in the District Court of Puerto Rico seeking forfeiture of said merchandise pursuant to 18 U.S.C. § 545 and 19 U.S.C. § 1592 (hereinafter referred to as § 545 and § 1592). The “notice of seizure” issued by the Customs Service alleged both § 545 and § 1592.

The cause of action under § 1592 was voluntarily dismissed by the government without prejudice. The district court presently has before it the remaining claim under § 545 in which plaintiff has appeared.

In instituting this action plaintiff seeks, by its complaint, to have this Court grant a declaratory judgment “that with respect to the seized coffee, there was no violation of 19 U.S.C. § 1592” (paragraph 10 of complaint). In addition, plaintiff requests the return of the seized coffee for the purpose of exportation (paragraph 11 of complaint), while at the same time admitting the coffee is not subject to spoilage if properly stored (paragraph 22 of complaint). Alternatively, (paragraph 12 of complaint) plaintiff seeks an order in the nature of mandamus “directing the Defendant United States to forthwith commence an action in this court pursuant to 28 U.S.C. § 1582(1), concerning a violation of 19 U.S.C. § 1592, as it relates to the subject coffee.”

Defendant has moved to dismiss the action on the ground the Court does not have jurisdiction to order the return of the seized coffee or issue a declaratory judgment to the effect that § 1592 has not been violated. Defendant further alleges that plaintiff has failed to state a claim upon which relief can be granted, insofar as it relates to compelling defendant to institute an action under § 1592.

In jurisdictional matters the burden of proof rests upon the plaintiff. United States v. Biehl, 3 CIT 158, 539 F.Supp. 1218 (1982); Vivitar Corp. v. United States, 8 CIT —, 585 F.Supp. 1419 (1984), Appeal No. 84-1638 pending.

There is no dispute that the government filed the district court action prior to plaintiff instituting this action. It is well established that a subsequently filed action should be dismissed when a prior action is pending in which there is an identity of issues which will be determined in the prior lawsuit. Jones v. American Guild of Variety Artists, 199 F.Supp. 840, (E.D.Pa.1961); 5 C. Wright & A. Miller, Federal Practice & Procedure § 1360 (1969).

Whether plaintiff fraudulently attempted to enter the coffee by means of any false document or statement is before the district court. Since jurisdiction over the seized coffee resides in the district court, this court has no jurisdiction over the said coffee or the merits of the forfeiture proceedings. Therefore, this court may not order the release of the seized coffee.

The question of whether the court may issue a declaratory judgment with respect to the fact that plaintiff has not violated § 1592 must be denied since Customs has not determined whether an action will be instituted under § 1592. The dismissal without prejudice of the action under § 1592 by the district court certainly does not require such a determination. Ac-eordingly, since neither a § 1592 action has been instituted, nor has there been a trial on the merits, such a request is premature.

Plaintiffs request, in the form of mandamus seeking an order of this court to direct Customs to institute an action under § 1592, is denied. The determination to institute such an action is not a ministerial act but one involving discretion. Relief in the nature of mandamus may be used to compel the performance of a ministerial act but may not be invoked to compel the exercise of discretion. Wilbur v. United States, 281 U.S. 206, 50 S.Ct. 320, 74 L.Ed. 809 (1930). Before a notice of penalty is issued, an investigation must be instituted and the specific statutory and regulatory framework is required to be followed. Since such determination has not been made, institution of a § 1592 action, pursuant to 28 U.S.C. § 1582(1), would be premature. If in fact an action is instituted, the matter may very well be settled administratively upon the filing of a petition with Customs. Accordingly, institution of a § 1592 action is not at the point where the court may entertain plaintiffs request.

In view of the foregoing, it is hereby

ORDERED that plaintiffs complaint be, and the same hereby is, dismissed, and it is further

ORDERED that defendant’s motion to dismiss be, and the same hereby is, granted.

      . § 545. Smuggling goods into the United States
      Whoever knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces into the United States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, or other document or paper; or
      Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law—
      Shall be fined not more than $10,000 or imprisoned not more than five years, or both.
      Proof of defendant's possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section.
      Merchandise introduced into the United States in violation of this section, or the value thereof, to be recovered from any person described in the first or second paragraph of this section, shall be forfeited to the United States.


author: RE, Chief Judge:

text:
    AMORIENT PETROLEUM CO., Plaintiff, v. UNITED STATES of America, Defendant.
    Court No. 83-9-01326.
    United States Court of International Trade.
    April 17, 1985.
    Blum, Nash & Railsback, Edward G. Mo-dell, Washington, D.C., for plaintiff.

      Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph J. Liebman, Atty. in Charge, Intern. Trade Office, Commercial Litigation Branch, Judith M. Barzi-lay, New York City, for defendant.
   RE, Chief Judge:

The question presented in this case pertains to the proper classification, for customs duty purposes, of 18,344,771 gallons of certain petroleum derivatives imported from South Korea and China, and described on the customs invoices as “gasoline.”

The petroleum derivatives were entered at the port of Long Beach, California, and were classified by the Customs Service (Customs) as “motor fuels” under item 475.25 of the Tariff Schedules of the United States (TSUS). Hence, they were assessed with a duty of 1.25 cents per gallon.

Plaintiff protests this classification, contending that the petroleum derivatives are properly classified as “naphthas derived from petroleum, shale oil, or combinations thereof (except motor fuel)” under item 475.35 TSUS, dutiable at .25 cents per gallon.

The pertinent statutory provisions of the tariff schedules are as follows:

General Headnotes and Rules of Interpretation

10. General Interpretive Rules. For the purposes of these schedules—

(e) in the absence of special language or context which otherwise requires—

(i) a tariff classification controlled 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 articles of that class or kind to which the imported articles belong, and the controlling use is the chief use, i.e., the use which exceeds all other uses (if any) combined;

Schedule 4,

Part 10 Headnotes:

2. For the purposes of this part—

(b) “Motor Fuel” (item 475.25) is any product derived primarily from petroleum, shale, or natural gas, whether or not containing additives, which is chiefly used as a fuel in internal-combustion or other engines.

Classified under:

Schedule 4, Part 10:

475.25 Motor Fuel. 1.25<t per gal.

Claimed Under:

Schedule 4, Part 10:

475.35 Naphthas derived from petroleum, shale oil, natural gas, or combinations thereof (except motor fuel). 0.25o per gal.

The question presented, therefore, is whether the petroleum derivatives imported by the plaintiff constitute “Motor Fuel,” as classified by Customs, or “Naphthas derived from petroleum, shale oil, natural gas or combinations thereof (except motor fuel),” as contended by plaintiff. In order to decide this question, the court must consider “whether the government’s classification is correct, both independently and in comparison with the importer’s alternative.” Jarvis Clark Co. v. United States, 733 F.2d 873, 878, reh’g denied, 739 F.2d 628 (Fed.Cir.1984). See E.R. Hawthorne & Co. v. United States, 730 F.2d 1490, 1490 (Fed.Cir.1984).

Contending that there is no triable issue of fact, both parties moved for summary judgment under Rule 56 of this Court. After examining the tariff schedules, relevant case law, affidavits, and lexicographic definitions, this Court has determined that the imported petroleum derivatives were properly classified by Customs as “motor fuel.”

On November 9, 1982, after payment of customs duties of 1.25 cents per gallon on these petroleum derivatives, Amorient filed a protest with the Acting District Director of Customs on Terminal Island, California. When the protest was denied, Amorient filed this action.

Contending that there was no genuine issue of fact to be tried, plaintiff initially moved for summary judgment. It asserted that the petroleum derivatives had degrees of unsaturation, which are measured according to “Bromine numbers,” and Reid vapor pressures greater than those acceptable to the California Air Resources Board (CARB) for‘sale as gasoline in the South Coast Basin of California. Hence, plaintiff argued that the petroleum derivatives could not properly be classified as “motor fuel.”

Plaintiff further stated that, in order to comply with the CARB regulations, so that the imported merchandise could be sold as motor fuel within the South Coast Basin of California, 12,967,918 gallons of the petroleum derivatives were mixed with naphtha, condensate, jet fuel, leaded and unleaded gasoline in tanks in Long Beach, California.

The petroleum derivatives in question have Bromine numbers which range from 62.4 to 92.4. The Reid vapor pressure of these derivatives ranges from 9.6 to 10.4 pounds per square inch. CARB motor vehicle fuel standards for the South Coast Basin of California prohibit the sale of any gasoline that has a degree of unsaturation greater than that indicated by a Bromine number of 30. CARB Regulations § 2250(a). Within the South Coast Basin between the months of April and October, CARB regulations also prohibit the sale of motor fuel with a Reid vapor pressure greater than 9 pounds per square inch. CARB Regulations . § 2251.

In support of its motion, plaintiff submitted the affidavits of its Vice President, Richard T. Mulcahy, and of James J. Mor-gester, Chief of the Compliance Division of the California Air Resources Board. Both affiants averred that the petroleum derivatives in question could not lawfully have been sold as motor fuel in the South Coast Basin of California.

Based upon the fact that the petroleum derivatives in question could not be lawfully sold as motor fuel in the South Coast Basin, Amorient urged that these derivatives were improperly classified, and should have been classified and assessed duty under item 475.35, TSUS, as “naphtha.” The plaintiff drew a distinction between petroleum products used as motor fuel, and those used in motor fuel. It urged that, since the products in question could not be sold in the South Coast Basin as motor fuel, and instead were blended with other components to form a fuel acceptable for sale in the Basin, they should have been classified as “naphtha.”

The defendant opposed the motion for summary judgment. It contended that whether the products in question could be lawfully sold as motor fuel in the South Coast Basin of California is irrelevant to the classification of the imports. Emphasizing that the chief use of the petroleum derivatives within the United States is controlling on the classification issue, the defendant claimed that there was an issue of material fact as to whether the products in question were usable as motor fuel. The defendant also maintained that petroleum derivatives containing lead were not classifiable as “naphtha” under item 475.35, and, thus, there was an additional factual question to be determined. Finally, the defendant contended that there was a question of fact as to whether those petroleum derivatives that were not blended to make a saleable motor fuel for the South Coast Basin, were later sold elsewhere as motor fuel.

In response to the defendant’s contentions, the plaintiff stipulated that the petroleum derivatives in question are used primarily as motor fuel outside of the South Coast Basin of California, that there was lead in these derivatives, and that the portion of the shipment in question that was not blended to make gasoline for sale in the South Coast Basin was sold by Amorient as gasoline for use outside of the South Coast Basin. Having stipulated these facts, the plaintiff contended that there remained no material facts in dispute, and, therefore, urged summary judgment in its favor.

In response to the stipulations of the plaintiff, the- defendant made a cross-motion for summary judgment. The defendant contended that since the product in question, by plaintiffs own admission, was used outside of the South Coast Basin chiefly as motor fuel, and that the remainder of the shipment not blended for use as motor fuel in the South Coast Basin was sold for use elsewhere as motor fuel, the product had been properly classified. In addition, the defendant contended that the presence of lead in the product precluded its classification as “naphtha.” In essence, the defendant took the position that the regulations of a state prohibiting the sale of the petroleum derivatives in question as motor fuel in a limited geographic area were of no legal significance in the classification of the imported product.

On a motion for summary judgment, all ambiguities should be resolved, and all reasonable inferences should be drawn, in favor of the party against whom the summary judgment is sought. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Yamaha International Corp. v. United States, 3 CIT 108, 109 (1982). If there are any material issues of fact, summary judgment is precluded. Yamaha International, supra, 3 CIT at 109; S.S. Kresge Co. v. United States, 77 Cust.Ct. 154, C.R.D. 76-6 (1976). In the case at bar, each side asserts there is no triable issue of fact.

The Court agrees that there is no material question of fact in dispute, and that, therefore, summary judgment is appropriate. Since the court has determined that the defendant’s position is correct, judgment will issue for the defendant.

A question presented is whether a state regulation which limits or restricts the use of an imported product may preclude its classification according to its chief use in the United States. It is the holding of this Court that the chief use of the product in the United States is controlling as to classification under a chief use provision of TSUS, irrespective of any state law or regulation which may restrict its use within the state.

The General Interpretive Rules of the tariff schedules provide that in the absence of special language or content, “a tariff classification controlled by use (other than actual use), is to be classified in ac-eordance with the use in the United States ... and the controlling use is the chief use.” 19 U.S.C.A. § 1202(10)(e)(i). The headnotes to part 10 of Schedule 4 define “motor fuel” as “any product derived primarily from petroleum, ... which is chiefly used as a fuel in internal-combustion or other engines.” Actual use of a particular shipment is not dispositive. In order to prevail, plaintiff must prove that the chief use of the class or kind of merchandise in question is different than the use stated by Customs. See, e.g., Pistorino & Co. v. United States, 67 C.C.P.A. 1, 4, C.A.D. 1234, 607 F.2d 989, 992 (1979); United States v. Colibri Lighters (U.S.A.) Inc., 47 C.C.P.A. 106, 109, C.A.D. 739 (1960); H.J. Baker & Bros. v. United States, 37 C.C.P.A. 52, 54, C.A.D. 419 (1949).

In Pacific Guano & Fertilizer Co. v. United States, 15 Ct.Cust.App. 218, C.A.D. 2866 (1927), the government classified certain agricultural products entered at San Francisco, California, and invoiced as “ground tankage,” as manufactured articles not specifically provided for. The classification was based on the finding that the imported tankage was chiefly used in the United States as feed. The plaintiff challenged this classification, and contended that the tankage should have been properly classified as “fertilizer.” At trial, the plaintiff was able to prove that the imported tankage was used as fertilizer, and that its chief use in California was as fertilizer. This evidence, however, was not sufficient to prove that its chief use in California as fertilizer was the product’s chief use in the United States.

In the Pacific Guano & Fertilizer Co. case, the Court of Customs Appeals specifically stated that “[t]he fact that high-grade tankage is chiefly used in California as a fertilizer hardly justifies the conclusion that such tankage is chiefly used in the United States for that purpose.” Id. at 227 (emphasis in original). The court also concluded that the actual use of the particular merchandise was not determinative of its classification under the tariff schedules. Id. at 228. The court upheld the government’s classification, and emphasized that it is the product’s chief use in the United States that controls its classification for tariff purposes.

The holding in the Pacific Guano & Fertilizer Co. case has been consistently followed in subsequent cases. See, e.g., United States v. Colibri Lighters (U.S.A.) Inc., 47 C.C.P.A. 106, 109, C.A.D. 739 (1960); H.J. Baker & Bros. v. United States, 37 C.C.P.A. 52, 54, C.A.D. 419 (1949); Bangor & Aroostook Railroad Co. v. United States, 20 C.C.P.A. 96, 100, T.D. 45724 (1932). For example, in S.S. Kresge Co. v. United States, 28 Cust.Ct. 373, Abstr. 56297, app. dismissed, 40 C.C.P.A. 209 (1952), the court stated: “Chief use of a class of merchandise is neither proven nor refuted by testimony that in certain local areas in the United States the merchandise has but one use and no other, unless it also be established, as a fact, that elsewhere in the United States it is not commercially known.” Id. at 375.

Plaintiff relies on United States v. Exxon Corp. 66 C.C.P.A. 129, C.A.D. 1233, 607 F.2d 985 (1979), for the proposition that petroleum derivatives suitable for use in motor fuels are not dutiable as petroleum derivatives suitable as motor fuels. In, Exxon, the Court of Customs and Patent Appeals stated that “the statutory definition of motor fuel contained in TSUS Schedule 4, Part 10, headnote 2(b) determines what is or is not a motor fuel.” Id. at 133, 607 F.2d at 989. Thus, the court distinguished between petroleum derivatives suitable for use in motor fuels and those suitable for use as motor fuels, and held that only the latter are properly classifiable as motor fuel. Id. at 133, 607 F.2d at 988. See California Oil Co. v. United States, 29 Cust.Ct. 44, 47, C.D. 1442 (1952). The Exxon court then determined that the petroleum products in that case were not suitable for use as motor fuel because the 10% distillation temperature of those particular petroleum derivatives was too high to start a motor. Id., 607 F.2d at 988. In short, since the product was physically incapable of being used as motor fuel without modification or blending, it could not be classified as motor fuel.

In contrast, the imported product in this case is clearly capable of being used as a motor fuel. Indeed, plaintiff has stipulated that its use as motor fuel is its chief use in the United States. Furthermore, nearly one third of the shipment in question was sold for use outside of the South Coast Basin of California as motor fuel. Nevertheless, plaintiff insists that the local restriction on the use of motor fuel, which CARB places upon those fuels to be used in the South Coast Basin of California, should determine the classification of this shipment. On this reasoning, plaintiff contends that the shipment in question should be classified as “naphthas ... (except motor fuels).”

There is no basis for plaintiffs contention that the chief use of this particular shipment in California proves that it should have been classified as other than “motor fuel.” The Tariff Schedules classify these petroleum derivatives by their chief use in the United States. Since item 475.25 is a chief use designation, and the chief use of the product in question concededly is as motor fuel, there is no question of fact or law as to the correctness of the classification by Customs of the products in question. While state laws or regulations governing use of a product may constitute relevant evidence, when the product’s chief use in the United States is in dispute, they are of no legal significance for customs duty purposes when, as in this case, the product’s chief use in the United States is established.

Plaintiff contends that the Pacific Guano and S.S. Kresge decisions are not controlling because in those cases there were no legal restrictions on the use of the imported merchandise in the particular area, but merely the determination or choice by the importer to put the merchandise to a use other than its chief use in the United States. Plaintiff’s argument is not persuasive. While it is true that in Pacific Guano and Kresge the local uses were not mandated by local laws or regulations, the holdings of those cases are clear in their rejection of any standard other than chief use in the United States as controlling on the issue of the tariff classification of the importation.

Article I, section 8 of the United States Constitution mandates that “all Duties, Imposts, and Excises shall be uniform throughout the United States.” U.S. Const. Art. I § 8 cl. 1. Congress has gone to great lengths to establish a comprehensive administrative and judicial mechanism to execute and enforce the uniform and fair application of the customs laws of the United States. Indeed, a primary purpose or function of this Court is to ensure that the administrative agencies with jurisdiction over imports apply the law consistently and uniformly. See, e.g., H.R.Rep. No. 1235, 96th Cong., 2d Sess. 18-19 (1980). If this Court were to adopt the interpretation or view of the law urged by the plaintiff, the result would be that similar imports could be assessed different duties at different ports of the United States. This result would be in direct conflict with the constitutional mandate of national uniformity in the administration of the customs laws of the United States.

Whether or not this case should be considered one of first or novel impression, the plaintiffs position is. untenable since it is contrary to national policy. Plaintiffs contention would require Customs to refrain from classification of imported petroleum derivates until each shipment’s ultimate use was determined. This determination would have to be based on the destination of each particular shipment. CARB regulation § 2251 contains five different localized restrictions as to acceptable Reid vapor pressure based upon time of year, and the particular locality in which the gasoline is to be used. Plaintiffs plan would therefore require the Customs Service to classify the shipments to these areas differently from other shipments, as well as differently from shipments to the same areas at different times of the year.

The second difficulty with plaintiffs proposal is that it would allow importers to store their imports in areas where the products perhaps could be classified as “naph-thas.” They could thus receive the benefit of a lower tariff rate, and later sell their imports as gasoline in areas where the restrictions did not exist. In response, the Customs Service would either have to maintain continuous scrutiny over imports assessed at the lower tariff rate, or delay collecting duties until the imports were used. Either procedure would be burdensome and impractical.

It is well established that, when the tariff schedules designate a classification according to chief use, use is to be determined as of the date of importation or immediately prior thereto. E.g., Randolph Rand Corp. v. United States, 53 C.C.P.A. 24, 26-27, C.A.D. 871 (1966); United States v. C.S. Emery & Co., 53 C.C.P.A. 1, 6, C.A.D. 868 (1966); United States v. Baltimore and Ohio R.R. Co., 47 C.C.P.A. 1, 4, C.A.D. 719 (1959). Furthermore, it is beyond question that classification of imported merchandise must rest upon its condition as imported. E.g., Carrington Co. v. United States, 61 C.C.P.A. 77, 81, C.A.D. 1126, 497 F.2d 902, 905 (1975); United States v. Baker Perkins, Inc., 46 C.C.P.A. 128, 131, C.A.D. 714 (1959). The fact that plaintiff intended to, and later did, blend some of the imported petroleum derivatives with other materials is irrelevant if the chief use in the United States of the imported merchandise at the time of importation was as motor fuel.

In conclusion, the tariff schedules make no provision for localized tailoring of petroleum classifications as suggested by the plaintiff. Headnote 2(b) states that motor fuel is “any product ... which is chiefly used as a fuel in internal-combustion or other engines.” The cases cited, as well as the General Interpretive Rules, leave no doubt that tariff classifications controlled by use, other than actual use, are to be determined in accordance with the chief use in the United States, not in any particular locality. Thus, in the case at bar, there is no question as to the validity of the government’s classification of the imported merchandise.

Plaintiff has failed to establish that the applicable standard for classification of its petroleum derivatives is anything other than the chief use of the product in the United States. The fact that the State of California has made a legislative determination that petroleum derivatives imported by plaintiff are not permissible motor fuels in certain limited geographic areas does not negate the fact that the chief use of these substances in the United States is as motor fuel.

The plaintiffs proposed classification of the merchandise is as “[njaphthas derived from petroleum ... (except motor fuel)” under item 475.35. This proposed item expressly excludes motor fuel. Since the imported merchandise has been determined to be motor fuel, the merchandise cannot be classified as naphtha.

For the foregoing reasons, it is the determination of this Court that the imported merchandise was properly classified by Customs as motor fuel.

Defendant’s cross-motion for summary judgment is granted, the plaintiffs motion is denied, and the action is dismissed. Judgment will issue accordingly.