author: DAVID V. O’BRIEN, District Judge.

text:
    Mercedes MALONE, Ana Rivera, Individually, and All Others Similarly Situated, Plaintiffs, v. Norman JOHANSEN, Director, V.I. Department of Social Welfare and Margaret M. Heckler, Secretary, Department of Health and Human Services, Defendants.
    Civ. No. 84/116.
    District Court, Virgin Islands, D. St. Croix.
    Jan. 11, 1985.

      Archie Jennings, Charlotte Amalie, St. Thomas, V.I., Amelia Headley-Lamont, Legal Services of the Virgin Islands, Christiansted, St. Croix, V.I., for plaintiffs.
    Joyce Glason O’Reilly, Asst. Atty. Gen., Christiansted, St. Croix, V.I., for defendant Norman Johansen.
    Douglas Capdeville, Asst. U.S. Atty., Christiansted, St. Croix, V.I., for defendant Margaret Heckler.
   MEMORANDUM OPINION AND ORDER

DAVID V. O’BRIEN, District Judge.

Plaintiffs instituted this action, individually and on behalf of all others similarly situated, to challenge the termination of their Aid to Families with Dependent Children (“AFDC”) benefits under the “lump-sum rule”, 42 U.S.C. § 602(a)(17) (Supp. 1981). Defendants administer the AFDC program on the territorial and federal levels. The issue we must decide is whether the lump-sum rule applies to all AFDC beneficiaries or as plaintiffs argue, only to those with earned income. As recent precedent instructs us that 42 U.S.C. § 602(a)(17) applies to all AFDC families, we will grant defendants’ motion for summary judgment.

I. FACTS

Plaintiff Mercedes Malone was collecting $154 per month in AFDC benefits for herself and two children. In January 1984 she received $1,375 from the Virgin Islands Water and Power Authority in settlement of a potential claim. As a result, she was informed that her AFDC benefits would be discontinued for eight months under the lump-sum rule. The settlement money had already been exhausted on furniture, a washing machine, dentures and other household items. Malone reapplied for benefits but was denied. As eight months have passed since the termination of benefits they have been reinstated.

Plaintiff Ana Rivera received $209 monthly in AFDC benefits for herself and three children. After the death of a son she received an insurance check for $5,000. Her AFDC benefits were terminated for 23 months. The insurance money was spent on a washing machine, stove, food and other necessities long before she was entitled to further AFDC support.

On April 18, 1984 plaintiffs filed this action seeking declaratory and injunctive relief. They moved the Court for a temporary restraining order, preliminary injunction, for leave to proceed in forma pauper-is, and for class certification. By order of the Court dated April 19, 1984 plaintiffs were granted in forma pauperis status.

Defendants Norman Johansen, Commissioner of the Department of Social Welfare in the Virgin Islands, and Margaret M. Heckler, Secretary of the United States Department of Health and Human Services, opposed the motion for a temporary restraining order and preliminary injunction, and moved for summary judgment. They also urged the Court to stay the proceedings as the Third Circuit Court of Appeals was in the process of ruling on the issue.

After a hearing held on May 9, 1984, wherein the Court made findings of fact, an order was entered denying the motion for a temporary restraining order and preliminary injunction, and class certification. Before us now is defendants’ motion for summary judgment.

II. DISCUSSION

Since its revision in 1981, as part of the Omnibus Budget Reconciliation Act, Pub.L. No. 97-35, the lump-sum rule has been repeatedly challenged. This rule, amending section 402(a)(17) of the Social Security Act, 42 U.S.C. § 602(a)(17), provides that certain AFDC beneficiaries who receive nonrecurring lump-sum income in excess of their monthly standard of need are ineligible for aid for a prescribed period of time.

Plaintiffs challenge the application of the lump-sum rule to all AFDC families. See 45 C.F.R. § 233.20(a)(3)(ii)(D). They claim that the governing statute, 42 U.S.C. § 602(a)(17), applies only to those AFDC families with earned income at the time of receipt of the lump sum.

The Third Circuit Court of Appeals was presented with this precise issue in Barnes v. Cohen, 749 F.2d 1009 (3d Cir.1984), wherein the Court consolidated two district court cases with adverse holdings.

In Betson v. Cohen, 578 F.Supp. 154 (E.D.Pa.1983), the court denied plaintiffs’ motion for a temporary restraining order and class certification, and granted defendants’ motion for summary judgment. Finding 42 U.S.C. § 602(a)(17) ambiguous, the court looked to the statute’s legislative history and found that the intent was to give all AFDC beneficiaries incentive to budget lump-sum payments, not just those with earned income.

Conversely, in Harris v. Heckler, 576 F.Supp. 915 (D.N.J.1983), summary judgment was granted in favor of plaintiffs. Analyzing the language of the statute and congressional policy, the court ruled that the lump-sum rule applies only to AFDC recipients with earned income.

Barnes has now put the issue to rest in this Circuit. In an exhaustive opinion, the Circuit Court first looked to the plain language of 42 U.S.C. § 602(a)(17) and found it to be ambiguous. Id., at 1013. Turning to the legislative history of the statute, the Court stated Congress’ two major purposes as the promotion of responsible budgeting of lump-sum income by AFDC families, and the reduction of the governmental cost of the AFDC program. Id. at 1014.

Interpreting 42 U.S.C. § 602(a)(17) to apply to all AFDC recipients would further the legislative intent. The Court reasoned that if Congress wished to prevent the “perverse effect”, predominant in the old statute, of encouraging families to spend lump-sum income as quickly as possible in order to retain AFDC eligibility, and if only seven percent of the AFDC caseload has earned income, then, accepting plaintiffs’ argument, the “perverse effect”, would continue for 93 percent of AFDC families. This is not supported by any explicit language. Id. at 1014.

Supporting defendants’ argument further, the new lump-sum rule would save the Federal Government $5 million per year if applied to all AFDC families, and only $350,000 if applied to just those with earned income. Id.

Another factor that the Court took into consideration was a recent amendment to 42 U.S.C. § 602(a)(17) which was interpreted as a clarification rather than a change of the lump-sum rule. The amendment, enacted on July 23, 1984 as part of the Deficit Reduction Act of 1984, clarified who the lump-sum rule applies to by deleting a controversial reference to § 602(a)(8)(A)(i) or (ii) and substituting a full description of AFDC beneficiaries and “essential persons”. Id. at 1015-1016.

The Third Circuit Court of Appeals concluded that 42 U.S.C. § 602(a)(17) applies to all AFDC families. Other courts have reached the same conclusion. Faught v. Heckler, 736 F.2d 1235 (8th Cir.1984); Sweeney v. Murray, 732 F.2d 1022 (1st Cir.1984); Walker v. Adams, 741 F.2d 116 (6th Cir.1984).

In their moving papers plaintiffs state that they have been forced to live under “desperate life-threatening circumstances” due to the termination of their AFDC benefits. We call attention to the emergency provision in 45 C.F.R. § 233.20(a)(3)(ii)(D) which provides that the period of ineligibility may be shortened where such life threatening circumstances exist, the non-recurring income has been or will be expended for essential needs, and there is no other income.

III. CONCLUSION

As there are no genuine issues of material fact, and defendants’ are entitled to summary judgment pursuant to Fed.R.Civ.P. 56 as a matter of law, the motion will be granted and the cause of action dismissed.


source: Caselaw Access Project

author: LASKER, District Judge.

license: Public Domain

text:
    DUKANE FABRICS INTERNATIONAL, INC. and House of Pile, Plaintiffs, v. M.V. “HRELJIN”, M.V. “NEPTUNE”, et al. v. JUGOLINIJA; Jugolinija Container Services; Med Express Lines, Ltd.; Joong Ang Shipping Co., Ltd.; Purfleet Enterprises Ltd.; Mirage Shipping, S.A.; Daiwa Kaiun K.K.; Nippon Yusen Kaisha, d/b/a NYK Line, and Medafrica Lines, S.p.A., Defendants, and third party action.
    No. 83 Civ. 5479(MEL).
    United States District Court, S.D. New York.
    Jan. 14, 1985.
    Bigham Englar Jones & Houston, New York City, for plaintiffs; John E. Cone, Jr., Thomas J. Mulligan, New York City, of counsel.
    Cichanowicz, Callan, Carcich & Keane, New York City, for defendants JUGOLINIJA and MEDAFRICA LINE, S.p.A.; Michael J. Carcich, Joseph F. DeMay, Jr., New York City, of counsel.
   LASKER, District Judge.

In June of 1982, Dukane Fabrics International, Inc. (“Dukane”) and House of Pile (“HoP”), two New York corporations, attempted to ship several hundred rolls of textile piece goods from New York to Duo-la, Cameroon via Leghorn, Italy. Med Express Lines Ltd. (“Med Express”), a New York shipper, was retained to arrange the shipment of the cargo between the United States and Africa, and was authorized to accept bills of lading issued by the various carriers on behalf of Dukane and HoP. Med Express consequently entered into an agreement with Medafrica Lines, S.p.A. (“Medafrica”), an Italian carrier, to carry the goods from Leghorn, Italy to Calabar, Nigeria. Bills of Lading issued by Medafrica stated that any dispute would be “decided in Genoa where the Carrier has his [sic] principal place of business and the Italian law shall apply except as provided elsewhere herein.” See Medafrica’s Notice of Motion, filed Aug. 13, 1983, at Exhibit F.

In July of 1982, the goods were shipped from New York to Italy, but were then lost enroute from Italy to Africa. Dukane and HoP subsequently filed this action against various carriers and shippers to establish their liability for the lost cargo. Medafrica now moves to dismiss the claims and cross-claims asserted against it on the ground that the above-quoted forum selection provision, based upon the Supreme Court’s holding in Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), is prima facie enforceable and that it has been enforced in similar cases.

As we understand plaintiffs’ argument, they contend that the bills of lading choice of forum clause should not be enforced because plaintiffs were never privy to the bills’ terms and provisions and Medafrica should therefore not be permitted to “escape” this litigation. We disagree. Plaintiffs were privy to the terms of the bills of lading because it is not disputed that Med Express was authorized by plaintiffs to accept Medafrica’s bills of lading on plaintiffs’ behalf.

Plaintiffs next challenge the forum selection provision on the ground that they did not, within the meaning of Bremen, supra, “freely negotiate” the bills of lading with Medafrica. As noted above, Med Express was authorized by the plaintiffs to accept Medafrica’s bills of lading and there is no evidence that these bills were not “freely negotiated.”

In addition, plaintiffs contend that Medafrica’s bills of lading were “boilerplate” contracts which were not issued to them and which they could not accept, reject, or alter. As to whether the “boilerplate” features of the bills of lading ought to defeat the enforcement of the choice of forum clause, the Supreme Court has held that forum selection clauses should be enforced as prima facie valid unless it can be shown that “enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overreaching.” Bremen v. Zapata Off-Shore Co., supra, 407 U.S. at 15, 92 S.Ct. at 1916. Courts in this District have consistently found that it is not unreasonable to enforce a choice of forum provision embodied within a standard printed form. See Galaxy Export Corp., supra, 1983 A.M.C. at 2639; Paterson, Zochonis (U.K.) Ltd. v. Compania United Arrows, S.A., 493 F.Supp. 626, 630 n. 14 (S.D.N.Y.1980) (Sand, J.) (“Accepting plaintiffs’ present argument without more specific allegations of overreaching would be tantamount to voiding all forum selection clauses contained in typical ocean bills of lading.”) Accepting Judge Sand’s view, we find that the forum selection clause at issue here was not invalid because there is no showing of overreaching on Medafrica’s part.

Finally, plaintiffs argue that dismissing this action as to Medafrica “would be tantamount to enabling a substantial injustice,” Plaintiffs’ Memorandum of Law, at 9, because it will allow Medafrica to circumvent the production of material evidence and witnesses. Plaintiffs refer, inter alia, to the fact that further testimony needs to be taken from Medafrica employees relating to the transport of their cargo from Italy to Nigeria and the loss of the cargo enroute.

For the reasons set forth by Chief Judge Motley in Galaxy Export Corp., supra, a case virtually identical to this one in which a forum selection clause naming Genoa, Italy as the forum was enforced in favor of Medafrica, we find that plaintiffs’ assertions of inconvenience are insufficient to bar enforcement of the forum selection pro-' vision at issue here.

It is “incumbent upon the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” M/S Bremen, [supra,] 407 U.S. at 18 [92 S.Ct. at 1917], Plaintiffs have not sustained their burden. Plaintiffs have not asserted that they will be unable to secure the attendance of their witnesses at proceedings in Italy, nor have they indicated that they would not be able to use depositions taken here in support of their claim before the Italian tribunal.

Galaxy Export Corp., supra, 1983 A.M.C. at 2640. For the reasons expressed in Galaxy Export Corp., we disagree with plaintiffs’ suggestion that it would be “unjust” for their claims against Medafrica to be heard in an Italian forum. We do not believe their claims will be treated any less fairly by the courts of Italy and, in any event, “[s]uffice it to say that ‘[i]f the unfairness of foreign tribunals can ever be a basis for refusing to enforce [a forum selection clause], a much stronger showing’ ” than the one which plaintiffs have hinted at here is required. Id. at 2641, supra, quoting, Crown v. Beverage Co., Inc. v. Cerveceria Moctezuma, S.A., 663 F.2d 886, 889 (9th Cir.1981). Moreover, plaintiffs have made no showing that they cannot secure necessary evidence from Medafrica by depositions or other methods of discovery.

Defendant Medafrica’s motion to dismiss the claims and cross-claims asserted against it is granted because the forum selection provision embodied within its bill of lading is determined to be valid.

It is so ordered.

      . Citing, Galaxy Export Corp. v. M/V “Hektor", 1983 A.M.C. 2637 (S.D.N.Y.1983) (Motley, J.). Medafrica also asserts that like the Bremen case, the provisions of the Carriage of Goods by Sea Act, 46 U.S.C. § 1300-15 (1982) (“COGSA"), are inapplicable here because the bills of lading are evidence of contracts for the carriage of the goods in question between two foreign ports — in this case Leghorn and Calabar. COGSA, by way of contrast, applies only to those bills of lading evidencing contracts for carriage of goods between a United States and foreign port. See 46 U.S.C. § 1312 (1982); Bremen, supra, 407 U.S. at 10 n. 11, 92 S.Ct. at 1913 n. 11.

      . Plaintiffs’ initial argument, that Medafrica was obligated to care for and properly deliver their cargo because it was the bailee-common carrier of the cargo, is relevant to the issue of Medafrica’s liability to the plaintiffs. It is not, however, applicable to the question of whether a choice of forum provision should be enforced.

      . Plaintiffs argue that because Medafrica has not testified in this action, nothing is known about what bills of lading were issued or whether there exists any other relevant documentation. This argument has nothing to do with the question of whether the forum selection provision was freely negotiated and, in any event, Medafrica's affidavit states that the bills of lading it issued for the carriage of plaintiffs’ goods between Italy and Africa contained the forum selection clause at issue here.

      . Med Express has defaulted on this motion by failing to answer.


author: DiCARLO, Judge:

text:
    AMERICAN INSTITUTE FOR IMPORTED STEEL, INC., B.S. Livingston & Company, Inc., and Primary Steel, Inc., Plaintiffs, v. UNITED STATES, et al., Defendants, and Lone Star Steel Company, Defendant-Intervenor, and LTV Steel Company and Inland Steel Company, Defendants-Intervenors, and Bethlehem Steel Corporation, Defendant-Intervenor, and United States Steel Corporation, Defendant-Intervenor.
    Court No. 84-11-01673.
    United States Court of International Trade.
    Dec. 5, 1984.

      Graubard, Moskovitz, McGoldrick, Dan-nett & Horowitz (Michael H. Greenberg, New York City, Beatrice A. Brickell, Washington, D.C., and Charles L. Rosenzweig), New York City, for plaintiffs.
    Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Washington, D.C. (Velta A. Melnbrencis, New York City, on brief), for defendants.
    Akin, Gump, Strauss, Hauer & Feld (Valerie A. Slater), Washington, D.C., for defendant-intervenor, Lone Star Steel Co.
    Cravath, Swaine & Moore (Joseph R. Sahid), New York City, for defendant-intervenors, LTV Steel Co. and Inland Steel Co.
    Stewart & Stewart (Eugene L. Stewart, Terence P. Stewart, Washington, D.C., Curtis H. Barnette, Bethlehem, Pa., Laird D. Patterson, Benjamin R. Civiletti), Washington, D.C., for defendant-intervenor, Bethlehem Steel Corp.
    Law Dept., U.S. Steel Corp. (J.J. Mangan, C.D. Mallick, J.M. Jarboe, R.K. Capozzi, P.J. Koenig, Pittsburgh, Pa., on brief), for defendant-intervenor, U.S. Steel Corp.
   DiCARLO, Judge:

Plaintiffs, two importers of pipe and tube steel from the European Communities (EC) to the United States and a trade association of such importers, seek a preliminary injunction restraining defendants from denying entry to pipe and tube steel from the EC or its member states from November 29, 1984 through December 31, 1984.

The Court denied plaintiffs’ application for a temporary restraining order after hearing argument on November 30, 1984. Motions by six domestic steel manufacturers to intervene as party-defendants were granted December 3 and 5, 1984. On December 5, 1984, following oral argument, the Court denied the motion.

BACKGROUND

On October 30, 1984, the President signed the Trade and Tariff Act of 1984, Pub.L. No. 98-573, 98 Stat. 2948 (the Act). Section 805(b) of the Act provides:

(1) In connection with the provisions of the Arrangement on European Communities’ Export of Pipes and Tubes to the United States of America, contained in an exchange of letters dated October 21, 1982, between representatives of the United States and the Commission of the European Communities, including any modification, clarification, extension, or successor agreement thereto (collectively referred to hereinafter as “the Arrangement”), the Secretary of Commerce is authorized to request the Secretary of the Treasury to take action pursuant to paragraph (2) of this subsection whenever he determines that—
(A) the level of exports of pipes and tubes to the United States from the European Communities is exceeding the average of annual United States apparent consumption specified in the Arrangement, or
(B) distortion is occurring in the pattern of United States-European Communities trade within the pipe and tube sector taking into account the average share of annual United States apparent consumption accounted for by European Communities articles within product categories developed by the Secretary of Commerce.
Any request to the Secretary of the Treasury pursuant to this subsection by the Secretary of Commerce shall identify one or more categories of pipe and tube products with respect to which action under paragraph (2) is requested.
(2) At the request of the Secretary of Commerce pursuant to paragraph (1), the Secretary of the Treasury shall take such action as may be necessary to ensure that the aggregate quantity of European Communities articles in each product category identified by the Secretary of Commerce in such request that are entered into the United States are in accordance with the terms of the Arrangement.

By letter dated November 14, 1984, the Secretary of Commerce requested the Secretary of the Treasury to direct the Customs Service to prohibit, effective November 20, 1984, entries of pipe and tube from November 29 to December 31, 1984, pursuant to section 805(b)(1)(A) of the Act.

An undated telex was sent by the Assistant Commissioner of Customs for Commercial Operations ordering that no further entries or warehouse withdrawals of steel pipes and tubes from the EC classified under TSUS items 610.30 through 610.52 were to be accepted after November 19, 1984. Implementation of the embargo was subsequently postponed by a second undated telex to 12:01 a.m. November 29, 1984.

Defendants contend that Secretary Baldridge’s letter and the Customs telexes were made available to the public on or about the date of their original transmission.

Plaintiffs B.S. Livingston and Company and Primary Steel, Inc. allege that they have shipments of pipe and tube steel from the EC at sea due to arrive at Houston, Texas on December 5 which will not be allowed entry until January 1, 1985. They claim they will incur costs of wharfage, storage, handling and interest involved in putting the merchandise in Customs bonded warehouses if prevented from making delivery; that their customers majr cancel contracts forcing sale of the merchandise at a substantial loss; and injury to their reputation as reliable suppliers.

Plaintiffs challenge the embargo on four grounds. They allege that: (1) defendants failed to comply with procedural requirements of section 805 of the Trade and Tariff Act of 1984; (2) defendants failed to comply with the publication provisions of the Federal Register Act (FRA), 44 U.S.C. § 1501 (1982), the publication requirement of the Administrative Procedure Act (APA), 5 U.S.C. § 552 (1982) and the notice and comment provisions of the APA, 5 U.S.C. § 553 (1982); (3) defendants’ actions are arbitrary, capricious and unsupported by valid administrative purpose, and, therefore, null and void under 5 U.S.C. § 706(2)(A) (1982); and, (4) since section 805 of the Act gives the administration authority to enforce an arrangement with the EC to limit EC steel imports into the U.S., and since that arrangement has been denounced by the EC, defendants’ actions to enforce the arrangement are a nullity.

The plaintiffs invoke the Court’s jurisdiction under 28 U.S.C. § 1581(i)(3) and (4).

THE PRELIMINARY INJUNCTION

In order to prevail on this motion, plaintiffs must show (1) threat of immediate irreparable harm; (2) likelihood of success on the merits; (3) that the public interest would be better served by issuing rather than by denying the injunction; and, (4) the balance of hardships on the parties favors issuing the injunction. Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir.1983); see S.J. Stile Associates, Ltd. v. Snyder, 646 F.2d 522, 525, 68 C.C. P.A. 27, 30 (1981); American Air Parcel Forwarding Co. v. United States, 1 CIT 293, 297-301, 515 F.Supp. 47, 52-55 (1981) (discussing the relative weight accorded to each factor).

Plaintiffs must make a clear showing that they are entitled to this relief. Asher v. Laird, 475 F.2d 360, 362 (D.C.Cir.1973); Dijub Leasing Corp. v. United States, 1 CIT 42, 51, 505 F.Supp. 1113, 1120 (1980).

A. IRREPARABLE INJURY

Plaintiffs allege that they will be liable for various wharfage, handling and storage expenses they would not have incurred but for the embargo.

In S.J. Stile Associates, Ltd. v. Snyder, 646 F.2d 522, 68 C.C.P.A. 27 (1981), the Court of Customs and Patent Appeals held that an increase in business expenses alone is not irreparable injury.

In essence, the [plaintiff] brokers invoke the equitable powers of the court to stop an action of the Customs Service on the sole ground that the action would cause some increase in their business expenses ... Nothing in the law requires that the Secretary or the Customs Service insure against an increase of business expenses of customs brokers. Thus solid proof that increased expenses would be certain, had the same been addressed, would not alone justify the injunction sought.

S.J. Stile Associates Ltd., 646 F.2d at 525-526, 68 C.C.P.A. at 30 (footnotes omitted) (emphasis added).

Plaintiffs also claim that delay caused by the embargo may result in cancellation of existing contracts and damage their reputation as reliable suppliers.

The plaintiffs have produced no evidence that these additional injuries would occur. They have made no showing that delays of less than a month would violate the terms of any contract. They have made no showing that time is of the essence in any contract. They have not shown that they could not substitute other steel products either from their own inventories or from other sources and thereby eliminate potential customer dissatisfaction. The Court does not know whether the parties to these contracts have provided for delays in their agreements in the event of government action.

Where irreparable injury is not demonstrated by “probative evidence” a preliminary injunction should be denied. See American Spring Wire Corp. v. United States, 7 CIT —, 578 F.Supp. 1405, 1408 (1984); American Air Parcel Forwarding Company, Ltd. v. United States, 1 CIT 293, 298, 515 F.Supp. 47, 52 (1981) (plaintiffs bear “heavy burden of producing evidence” on motion for preliminary injunction).

The Court holds that plaintiffs have failed to demonstrate the necessary irreparable harm.

B. LIKELIHOOD OF SUCCESS ON THE MERITS

It is unnecessary for plaintiffs to establish likelihood of success on the merits with “mathematical probability.” Committee to Preserve American Color Television and Imports Committee v. United States, 4 CIT 202, 204, 551 F.Supp. 1142, 1144 (1982). However, in this case, the Court finds there is no likelihood of success on the merits.

Plaintiffs first cause of action is that defendants failed to comply with the procedural requirements of section 805 of the Act since no determination was made by the Secretary of Commerce as required by subsection (b)(1); no request has been made by the Secretary of Commerce to the Secretary of the Treasury as required by subsection (b)(1); and no action has been taken by the Secretary of the Treasury as required by subsection (b)(2).

The November 14, 1984 letter from the Secretary of Commerce to the Secretary of the Treasury explicitly made the determination and request required by section 805(b)(1), (2) and the subsequent Customs telexes constitute the action taken at the direction of the Secretary of the Treasury pursuant to subsection (b)(2).

Plaintiffs also allege in their first cause of action that no regulations have been promulgated by defendants under section 805(c). That subsection provides:

For purposes of carrying out this title, the Secretary of the Treasury may provide by regulation for the terms and conditions under which steel products may be denied entry into the United States.

Pub.L. 98-573, § 805(c), 98 Stat. 3046 (Emphasis added).

There is no requirement that the Secretary of the Treasury promulgate such regulations.

Since defendants have complied with the procedural requirements of section 805, plaintiffs’ first cause of action has no likelihood of success.

Plaintiffs’ second cause of action is that the defendants have not complied with the requirements for publication of the Federal Register Act, 44 U.S.C. § 1501 and requirements for publication of 5 U.S.C. § 552 and prior notice and comment of 5 U.S.C. § 553, of the Administrative Procedure Act.

Plaintiffs conceded at oral argument that the FRA required publication of any documents involved in this action only if the APA required such publication.

5 U.S.C. § 552(a)(1)(D) requires an agency to publish in the Federal Register.

substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency ...

Section 552(a)(1) continues:

Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.

Plaintiffs argue that the Customs actions in imposing the embargo were “substantive rules of general applicability.”

Assuming arguendo that the government action here — of limited duration affecting a small, sophisticated community importing of a particular kind of steel from particular countries — is within section 552(a)(1)(D), plaintiffs had actual and timely notice of the action and are bound by the embargo. See Yassini v. Crosland, 618 F.2d 1356, 1361-1362 (9th Cir.1980); United States v. Mowat, 582 F.2d 1194, 1201 (9th Cir.1978). Cf. United States v. Aarons, 310 F.2d 341, 348 (2d Cir.1962) (actual notice).

The decision to implement the embargo was not made until November 14, 1984. Defendants state that Secretary Baldrige’s letter of November 14, 1984 and the two undated telexes were made available to the public. Plaintiffs had actual notice of defendants decision to implement the embargo before the embargo went into effect. Plaintiffs make no showing of prejudice and their notice is, therefore, timely. See Neighborhood Legal Services, Inc. v. Legal Services Corp., 466 F.Supp. 1148, 1154 (D.Conn.1979).

Plaintiffs also allege as part of their second cause of action that defendants failed to provide notice and opportunity for public comment on the action, as required by 5 U.S.C. § 553.

Assuming arguendo that the imposition of the embargo was a “rule,” and its formulation “rulemaking,” within the ambit of section 553, section 553(a)(1) exempts from notice and comment rulemaking “to the extent that there is involved a military or foreign affairs function of the United States.”

In Mast Industries, Inc. v. Regan, 8 CIT —, 596 F.Supp. 1567 (1984), appeal docketed, No. 85-748 (Fed.Cir. Nov. 8, 1984), this Court held that Customs regulations defining country of origin of textile products subject to quota under bilateral agreements or unilaterally imposed restraints involved a foreign affairs function within the meaning of section 553(a)(1), and were exempt from the prior notice and comment requirements of section 553.

As in Mast, the action challenged here clearly and directly goes to the purpose of an international agreement: limiting imports. The embargo of EC pipe and tube steel implements Congress’ direction that the U.S.-EC arrangement be enforced and is, therefore, a foreign affairs function.

Plaintiffs’ third cause of action is that the embargo should be declared void under 5 U.S.C. § 706(2)(A) which states that a court shall “hold unlawful and set aside agency action, findings, and conclusions found to be — arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”

Plaintiffs argue that since defendants failed to make or publish the determinations and rules required by the statute and to afford plaintiffs notice and an opportunity to comment in accordance with the APA, the embargo is arbitrary and capricious.

Since the Court finds that the defendants made the required determinations and their actions were properly exempt from the publication, notice, and comment provisions of the APA, the Court finds no likelihood of success on plaintiffs’ third cause of action.

Plaintiffs’ fourth cause of action that the embargo is null and void because the U.S.EC arrangement is no longer in effect.

Plaintiffs allege that on November 27, 1984, the EC delivered a letter to U.S. Ambassador George Vest in Brussels, Belgium, terminating the Pipe and Tube arrangement referred to in the Act.

On November 29, 1984, Secretaries Baldridge and Regan notified that EC that the United States considers that the arrangement remains in force. Defendants also argue that Customs was ordered to prohibit the entry of EC pipe and tube steel before EC announced the termination of the treaty.

The current status of the arrangement is not relevant to plaintiffs’ claim. The administration derives its authority not from the arrangement, but from the Act, passed by Congress. Cf. Mast Industries, Inc. v. Regan, 8 CIT —, 596 F.Supp. 1567 (1984), appeal docketed, No. 85-748 (Fed.Cir. Nov. 8, 1984) (President’s authority to limit textile imports derived from section 204 of the Agricultural Act of 1956, 7 U.S.C. § 1854, not international agreements). In effect, Congress granted the Administration authority to limit annual imports of EC pipe and tube steel to 5.9 percent of U.S. apparent consumption. The actions taken by the Secretaries of Commerce and the Treasury are in accordance with that authority.

The Court holds that plaintiffs’ fourth cause of action has no likelihood of success.

C. PUBLIC INTEREST

In determining whether the public interest would be better served by issuing rather than denying the injunction, the Court takes cognizance of Congress’ judgment that enforcement of the terms of the U.S.-EC arrangement serves the public in-terest. Following lengthy consideration of the matter, Congress, less than 2 months ago, provided the Administration with authority to take the action plaintiffs now challenge. Congress determined that limitation of steel imports, including pipe and tube steel from the EC, to protect the domestic steel industry, is in the public interest. See the Act at sections 802 (“full and effective implementation of the national policy for the steel industry will substantially improve the economy and employment in both the steel and iron ore-producing sectors”) and 803 (“Sense of Congress Regarding the National Policy for the Steel Industry”); Remarks of President Reagan in Signing the Omnibus Trade Bill Oct. 30, 1984, 1 Business America, Nov. 12, 1984 at inside front cover (the Act will “help keep the United States from becoming the world’s steel dump”).

The Court holds that the public interest is best served by denying the injunction.

D. BALANCE OF THE HARDSHIPS

In balancing the hardships the Court must consider whether granting the preliminary injunction would give plaintiff all or most of the relief to which it wouid be entitled if it were to succeed at trial. Dorfmann v. Boozer, 414 F.2d 1168, 1173 n. 13 (D.C.Cir.1969); Knapp v. Walden, 367 F.Supp. 385, 388 (S.D.N.Y.1973).

The embargo is to expire January 1, 1985. Granting plaintiffs’ motion would be effectively granting them all the relief they seek.

Defendants allege that if the injunction were granted, there would be substantial risk of irreparable harm to domestic producers of pipe and tube steel, since significant quantities of EC pipe and tube steel would be imported.

The Court finds that the balance of hardships favor the defendant.

CONCLUSION

Since the Court finds that plaintiff will suffer no irreparable injury, has no likelihood of success, that the public interest is best served by enforcement of the arrangement and that the balance of the hardships favor the defendant, the motion for preliminary injunction is denied.

      . In that letter, Secretary of Commerce Malcolm Baldridge determined that the level of pipe and tube steel imports from the EC was exceeding the level stated in the arrangement. He also determined that in the first eight months of 1984, imports of pipe and tube from the EC accounted for 14.4 percent of United States apparent consumption for the period. Under the arrangement, the EC agreed not to exceed their 1979-1981 average share of annual U.S. apparent domestic consumption for pipe and tube products. Pipe and tube imports from the EC countries in 1979-1981 averaged 5.9 percent of the U.S. market.
      The exchanged letters referred to in section 805(b)(1) of the Act, stating the arrangement, are reprinted at United States — European Communities Steel Pipe and Tube Imports Agreement: Hearings Before the Subcomm. on International Trade of the Senate Finance Comm., 98th Cong., 1st Sess. 58 (1983).

      . A news release by William E. Brock, United States Trade Representative, on November 27, 1984, described the actions to be taken effective November 29, 1984. Defendants assert that both telexes were distributed to the importing community by a variety of methods on November 19, 1984. Affidavit of John Martuge, Acting Director, Duty Assessment Division, United States Customs Service, Exhibit 8 to Defendants’ Opposition to Plaintiffs’ Request for a Preliminary Injunction.

      . That letter states in part:
      I determine, in accordance with section 805(b)(1)(A) of the Trade and Tariff Act of 1984, that the level of exports of all pipes and tubes to the United States from the EC is exceeding the average share of annual United States apparent consumption specified in the arrangement. I also determine in accordance with Section 805(b)(1)(B) of the new law that distortion is occurring in the pattern of U.S.EC trade within the pipe and tube sector, taking into account the average share of annual U.S. apparent consumption accounted for by EC exports to the United States ... Consequently, I request that you take the necessary actions as specified in Section 805(b)(2) of the Trade and Tariff Act of 1984, to ensure that the terms of the arrangement are met. Specifically, I request that you direct Customs Service officials to prohibit, effective November 20, 1984, further entries for consumption or withdrawals from warehouse for consumption for the remainder of 1984 for EC pipe and tube.

        See Exhibit 4 of Defendant's Memorandum in Opposition to Plaintiffs’ Request for a Preliminary Injunction.

      . Section 5(a) of the Federal Register Act, 44 U.S.C. § 1505(a) (1982) requires the following to be published in the Federal Register:

      (1) Presidential proclamations and Executive orders, except those not having general applicability and legal effect ...
      (2) documents or classes of documents that the President may determine from time to time to have general applicability and legal effect; and
      (3) documents or classes of documents that may be required so to be published by Act of Congress.
      For the purposes of this chapter every document or order which prescribes a penalty has general applicability and legal effect.
      The plaintiffs contend that only subsection (3) has applicability here.

      . Plaintiffs make no argument that 5 U.S.C. § 552(a) (1)(A) — (C) applies.

      . Plaintiffs' Affidavits annexed to its Order to Show Cause were executed November 28, 1984.

      . Plaintiffs rely on Anderson v. Butz, 550 F.2d 459 (9th Cir.1977), where implementation of an instruction interpreting a regulation was enjoined pending publication in the Federal Register. “If the Ninth Circuit also meant that failure to comply with a § 552 publication requirement concerning a grant-making policy renders such a policy void even though the applicant learns of the policy and is not prejudiced by lack of publication, this Court respectfully disagrees.” Neighborhood Legal Services, Inc. v. Legal Services Corp., 466 F.Supp. 1148, 1154 (D.Conn.1979). This Court concurs.

      . Section 553 applies to agency rulemaking. "Rulemaking” is defined as “agency process for formulating, amending, or repealing a rule.” 5 U.S.C. § 551(5). The APA defines "rule” to mean “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.”


author: FORD, Judge:

text:
    STAR-KIST FOODS, INC., Plaintiff, v. UNITED STATES, and U.S. Department of Commerce, Defendants, and The Government of the Republic of the Philippines, et al., Intervenors.
    Court No. 83-12-01711.
    United States Court of International Trade.
    Dec. 6, 1984.

      Howrey & Simon, Washington, D.C. (Keith E. Pugh, Jr., John F. Bruce, Kevin P. O’Rourke, Michael K. Brown, Washington, D.C.), for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Francis J. Sailer and A. David Lafer, U.S. Dept, of Justice, Civil Division, Washington, D.C., for defendants.
    Baskin & Steingut, P.C., Washington, D.C. (Herbert E. Harris II and Cheryl Ells-worth, Washington, D.C.), for the intervenors.
   Memorandum and Order

FORD, Judge:

This action, instituted under Section 516A(a)(2) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2), contests a final affirmative countervailing duty determination by the International Trade Administration of the United States Department of Commerce covering canned tuna from the Philippines. (48 Fed.Reg. 50,133, October 31, 1983).

Before the Court are motions related to the content of and accessibility to the administrative record in this case. Plaintiff has moved to supplement the administrative record and for a protective order to permit disclosure of certain documents contained therein. Defendants partially oppose both the above motions and have cross-moved for a protective order barring disclosure.

The administrative record, presently consists of 293 documents (A.R. 1-293). Subsequent to the filing of the instant motions, the administrative record was amended to reflect the addition of ten documents sought in the motion to supplement. Plaintiff’s present motion to supplement involves five documents. The motions pertaining to disclosure encompass thirty documents in all.

Defendants oppose the motion to supplement, maintaining the five documents sought to be included are not properly part of the administrative record. Defendants cross-move for a protective order barring the release of all or certain portions of the following documents, contained in the administrative record, to which plaintiff seeks access: A.R. 14, 16, 23, 25, 61, 62, 67, 76, 115 and 284-291. Additionally, defendants cross-move to bar disclosure of a document not sought, A.R. 9, in its entirety. These cross-motions are based upon claims of privilege, i.e., state secrets and deliberative process, asserted by the heads of the agencies whose documents are involved. There are no objections to the disclosure of seven documents previously classified pursuant to Executive Order No. 12356 but since declassified in their entirety (A.R. 3, 11, 43, 116, 122, 292, 293). These documents have been released as part of public record and are available to plaintiff.

Plaintiff claims the documents excluded from the administrative record contain information considered by the International Trade Administration in reaching its final countervailing duty determination. In moving for disclosure of the classified portions of documents in the administrative record, plaintiff contends defendants have not met their burden of justifying privileged status. Plaintiff also argues any claim of privilege has been waived through defendant’s delay and that the protective order provides the necessary safeguards should the documents be disclosed.

Of initial concern to the Court is plaintiff’s motion to supplement the administrative record. 19 U.S.C. § 1516a(b)(2)(A) provides the administrative record for the purposes of this action is to consist of:

(i) a copy of all information presented to or obtained by the Secretary, the administering authority, or the Commission during the course of the administrative proceeding, including all governmental memoranda pertaining to the case and the record of ex parte meetings required to be kept by section 777(a)(3) [19 USCS § 1677f(a)(3) ]; and
(ii) a copy of the determination, all transcripts or records of conferences or hearings, and all notices published in the Federal Register.

These provisions were defined in more practical terms in Beker Industries Corp. v. United States, 7 CIT —, where the Court found the scope of the record for purposes of judicial review to be the “information which was before the relevant decision-maker at the time the decision was rendered.”

Plaintiff became aware of the five subject documents by virtue of several Freedom of Information Act inquiries. The documents consist of four cables between United States and Philippine Government agencies and a paper on Philippine Export Subsidies. Defendants assert the documents involved were never presented to or obtained by the Commerce Department during the course of the administrative investigation. In support of this assertion, defendants have filed the Declaration of Robert F. Seely, Senior Counsel for Policy in the Office of Assistant General Counsel for Import Administration. While the descriptions of the documents at issue connote an arguable relevance to the administrative proceeding below, the sworn, uncontradicted declaration of the agency official responsible for such documentation must be seen as determinative. Plaintiff’s motion to supplement the administrative record must, therefore, be denied.

Turning to the motion and cross-motions pertaining to disclosure of the “classified” portions of the administrative record, the Court first looks to the applicable statutory provisions covering such matters. 28 U.S.C. § 2641(b) provides:

(b) The Court of International Trade may order that trade secrets and commercial or financial information which is privileged and confidential, or any information provided to the United States by any foreign government or foreign person, may be disclosed to a party, its counsel, or any other person under such terms and conditions as the court may order.

19 U.S.C. § 1516a(b)(2)(B) further provides:

(B) Confidential or privileged material. The confidential or privileged status accorded to any documents, comments, or information shall be preserved in any action under this section. Notwithstanding the preceding sentence, the court may examine, in camera, the confidential or privileged material, and may disclose such material under such terms and conditions as it may order.

Under the foregoing statutes, this Court is explicitly empowered and has been granted discretion to order the disclosure of any information provided to the United States in connection with the underlying countervailing duty determination. Ceramica Regiomontana, S.A. v. United States, 4 CIT 168 (1982).

Defendants have asserted claims of privilege with respect to documents subject to disclosure. The state secrets privilege is claimed against eighteen of the documents at issue, with the additional claim of deliberative process privilege being made as to portions of seven of the documents added in the amended administrative record. Defendants have filed both confidential and public versions of the administrative record with the Court, the “classified” portions of the documents having been deleted from the public version.

Of the eighteen documents to which privilege is asserted, sixteen were generated by three United States Government agencies: the Department of Commerce, the Department of State, and the United States Trade Representative (U.S.T.R.). These documents consist of cables and internal memoranda which, defendants maintain, are essential to the conduct of United States foreign relations. Each has been classified “confidential”, in whole or in part, in accordance with Executive Order No. 12356. Of the remaining documents, A.R. 9 is an internal report of the World Bank covering a proposed Second Structural Adjustment Loan to the Government of the Philippines. A.R. 288 is a negotiating document transmitted to officials of the U.S.T.R. by the Philippine Government. Both the World Bank and the Philippine Government have specifically requested that their respective documents retain their classified status and remain confidential.

Defendants urge the privilege of state secrets be considered absolute and cite well-established case law in support of this position. United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). Should the Court accept this contention, the proper assertion of privilege, pursuant to Executive Order No. 12356, would dictate total acquiescence to defendants motion. The plain language of 28 U.S.C. § 2641(b) {supra), however, precludes such an interpretation, as the state secrets privilege may not be regarded as absolute in the Court of International Trade. Cerámica Regiomontana, (supra). The proper assertion of privilege is but one factor, albeit a strong factor, for the Court to consider in balancing the conflicting interests involved in disclosure of such documents.

Having examined the documents at issue in camera, I find the concern expressed by the affiants to be well-founded. While the Court will not ordinarily countenance broad, conclusory assertions by affidavit, in this instance I am satisfied that release of the documents in question would pose a “reasonable danger” to national security. While respecting plaintiffs need for all pertinent material in order to properly present its challenge to the determination below, in weighing the arguments for and against disclosure, I conclude the balance of needs favors non-disclosure. In so finding, the Court is fully cognizant that disclosure of material against which a claim of state secrets is asserted may have a significance “wholly independent of the contents of the documents.” Ceramica Regiomontana (supra), citing Carlisle Tire & Rubber Co. v. United States Customs Service, 1 ITRD 1891, 1897 (D.D.C.1979). In the present situation, the Court realizes that disclosure of these classified documents, even under the terms of a protective order, could have serious ramifications and consequently affect the conduct of United States foreign relations. Moreover, in reviewing the materials involved, I find the classified portions of the documents to be of only marginal relevance to the issues presented in the case at bar. For these reasons, defendants’ assertions of state secrets privilege are sustained.

Of final concern to the Court is defendant’s claim of deliberative process privilege covering portions of seven of the documents added in the amended administrative record (A.R. 284-287, 289-291). Defendant contends the referenced documents consist of internal memoranda and draft negotiating documents containing legal opinions and policy viewpoints concerning highly sensitive trade policy initiatives. Defendants assert these documents contain internal deliberations essential to the informed decision-making processes. The declaration of William E. Brock, U.S.T.R., is submitted in support of this claim.

Documents of this nature, compiled solely for internal use and which comprise part of the process and ideas upon which agency determinations are based, are subject to a protective order against disclosure on the ground of privilege. SCM Corporation v. United States, 82 Cust.Ct. 351, C.R.D. 79-11, 473 F.Supp. 791 (1979); Sprague Electric Company v. United States, 81 Cust.Ct. 168, C.R.D. 78-18, 462 F.Supp. 966 (1978). Once the proponent of privilege has complied with the established criteria for asserting privilege, the opposing party-must demonstrate clearly and persuasively that the need for disclosure outweighs the harm that could result from disclosure. Melamine Chemicals, Inc. v. United States, 1 CIT 65 (1980).

After inspecting those portions of the documents relevant to this motion, the Court agrees with defendants characterization of the involved materials. It is obvious these documents were intended as internal memoranda. Similarly, impairment of the deliberative process which could result from disclosure of this type of documentation is readily discerned. Furthermore, having examined the subject documents in camera, the Court believes their disclosure would be of limited value to plaintiff, as the information contained therein is of little relevance to plaintiffs challenge of the administrative determination.

For the foregoing reasons, the Court adopts fully the terms of defendants cross-motion for protective order barring disclosure. As indicated supra, plaintiffs motion to supplement the administrative record is denied. Judgment will be entered accordingly.

      . A.R. 293, 284, 285, 286, 287, 292, 288, 289, 290, 291.

      . Cable — U.S./Philippine Bilaterals — the investment climate — 4/27/83; Cable — Treasury/Philippine Finance Ministry Consultations, May 3— 5/10/83; Cable — Treasury/Philippine Finance Ministry — 5/10/83; Cable — Treasury/Philippine Finance Ministry — 5/10/83; Paper — title— "Questions on Philippine Export Subsidies”— 5/17/83.

      . A.R. 3, 9, 11, 14, 16, 23, 25, 43, 61, 62, 67, 76, 115, 116, 122, 284-293, and the five documents subject to the motion to supplement.

      . A.R. 288, 9, 14, 16, 23, 25, 61, 62, 67, 76, 115, 284-287, 289-291.

      . In support for the assertion of privilege, defendants submit the declarations of Commerce Secretary Malcolm Baldrige, Acting Secretary of State Kenneth W. Dam, and United States Trade Representative William E. Brock.

      . Declaration of U.S.T.R. Brock, supra.

      . See e.g., Republic Steel Corp. v. United States, 3 CIT 117, 538 F.Supp. 422 (1982).


author: CARMAN, Judge.

text:
    ARBOR FOODS, INC., Plaintiff, v. UNITED STATES, et al., Defendants.
    Court No. 84-12-01722.
    United States Court of International Trade.
    Dec. 11, 1984.

      Graubard, Moskovitz & McCauley, Washington, D.C. (Alfred R. McCauley, Washington, D.C., on the motion); Dykema, Gos-sett, Spencer, Goodnow & Trigg, Washington, D.C. (Norton Cutler, Washington, D.C., on the motion), for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., Joseph I. Liebman, Atty. in Charge, Commercial Litigation Branch, Washington, D.C. (Michael P. Maxwell and Veronica A. Perry, New York City, on the cross-motion); (Karen Binder and Beth Broth-man, Chief Counsel, Intern. Trade Litigation, United States Customs Service, of counsel on the memorandum), for defendants.
   Memorandum Opinion on Plaintiffs Motion for a Preliminary Injunction

CARMAN, Judge.

This matter is before me on plaintiffs motion for a preliminary injunction and defendants’ cross-motion to dismiss. The issues presented by these motions include whether this Court has jurisdiction over the subject matter pursuant to 28 U.S.C. § 1581(i)(3), (4) (1982), and, if jurisdiction does exist, whether the elements necessary for a preliminary injunction are present.

Plaintiff, an importer of sugar blends, seeks a preliminary injunction restraining the United States Customs Service (Customs) from requiring the segregation of the contents of blends of sugar containing 65 percent or less sugar by dry weight and subjecting the sugar to quota provisions.

After hearing argument on December 7, 1984, the Court denied plaintiff’s application for a temporary restraining order. At the hearing for the preliminary injunction on December 11, 1984, the Court received evidence which was offered to establish irreparable injury. The evidence was relevant to whether the Court should exercise jurisdiction pursuant to 28 U.S.C. § 1581(i) as well as to whether plaintiff was entitled to preliminary injunctive relief. Ruling from the bench, the Court denied the motion for a preliminary injunction and granted defendant’s cross-motion to dismiss declining to obviate the usual procedure of administrative protest that would occur by exercising jurisdiction under section 1581(i).

FACTS

Since December, 1981, the President has issued a number of proclamations establishing import fees and quotas on imported sugar. The proclamations implemented a price support system for domestic sugar cane and sugar beets as required by Title IX of the Agriculture and Food Act of 1981, 7 U.S.C. § 1446(h) (1982). Specifically relevant to the current controversy are Proclamation 4941, issued May 5, 1982, and Proclamation 5071, issued June 28, 1983. Proclamation 4941 imposed quotas on imports of sugars classified under TSUS items 155.20 and 155.30, effectively foreclosing all importations of pure sugar. Proclamation 5071 extended the quotas to sirup and sugar blends classifiable under items 183.05, 183.01, 156.45, and 155.75 of the TSUS and containing over 65 percent sugar by dry weight.

During the period in which these proclamations were issued, the plaintiff imported products that were blends of sugar and other ingredients such as flour, dry dextrose, milk powder, and dry corn sirup solids.

To avoid subjection of its products to the quotas, the plaintiff began altering the mixture of certain blends in July of 1983 to ensure that they contained 65 percent or less sugar. Sometime in 1983 the plaintiff had also added a final step to its manufacturing process by screening blends immediately following entry of the merchandise and purveying the sifted sugar as a blend containing approximately 95 percent sugar. Plaintiff brought pure sugar from Canada into a foreign trade zone located within its warehouse in Toledo, Ohio. After mixing "sugar and corn sirup solids in the foreign trade zone, the blend was entered into the Customs Territory of the United States. Once across the zone, the merchandise was immediately screened to separate the sugar from the corn sirup solids. The plaintiff has stated that the Customs Port Director was advised of the screening operation and he “subsequently permitted entry of 24,950 tons [of blends] which he knew Arbor [plaintiff] would screen and indeed probably saw Arbor screening.” Affidavit of Clark Bien, at 3.

Exactly when Customs became aware of the screening practice is unclear. On November 6, 1984, the Office of Regulations and Rulings advised Customs officials by telex of the practice and directed that, henceforth, all “purported sucrose ‘blends’ will be considered commingled merchandise, pursuant to general headnote 7, TSUS,” except those blends that “possess a valid commercial identity and which are actually used in commerce in the United States.”

Subsequent to the November 6 directive, Customs denied entry of 360 tons of sugar and corn sirup solids blend from the foreign trade zone in plaintiff’s Toledo warehouse. The plaintiff filed no protest, but met with Customs officials on November 16, 1984, and requested a grace period to permit it to change its business practice to conform to the November 6 directive. The request was submitted in letter form on November 21,1984, and denied by Customs on November 28, 1984. On November 14, 1984, Customs revoked all classification rulings issued prior to November 6, 1984, covering various sugar blends of plaintiff. The specific sugar/corn sirup solids blend at issue here has never been covered by a ruling issued to the plaintiff.

OPINION

The threshold question presented by this action is whether this Court has subject-matter jurisdiction under 28 U.S.C. § 1581(i)(3), (4), notwithstanding that plaintiff has failed to avail itself of the administrative protest mechanism. Generally speaking, the United States Court of International Trade reviews “challenges to classification, valuation and entry of merchandise ... pursuant to 28 U.S.C. § 1581(a) after the administrative remedies under 19 U.S.C. § 1514 and § 1515 have been exhausted.” Mast Industries, Inc. v. Regan, 8 CIT —, at —, 596 F.Supp. 1567, at 1573 (1984). This Court, however, has on occasion asserted subject matter jurisdiction under 28 U.S.C. § 1581(i) in the absence of a denied protest. For example, in United States Cane Sugar Refiners’ Association v. Block, 3 CIT 196, 544 F.Supp. 883, aff'd, 683 F.2d 399, 69 C.C.P.A. 172, (1982), a case involving quantitative restrictions on sugar imports, the Court held that subject matter jurisdiction existed under section 1581(i). There, Judge (now Senior Judge) Newman found that to require the filing and denial of a protest would be tantamount to “insistence [on] a useless formality,” since Customs officials would be powerless to vary from the challenged Presidential Proclamation. 3 CIT at 201, 544 F.Supp. at 887. The Court of Customs and Patent Appeals (now the Court of Appeals for the Federal Circuit) upheld this assertion of jurisdiction, adding:

Respecting jurisdiction under § 1581(i), we note the provision of injunctive powers to the Court of International Trade in the Customs Courts Act of 1980 and the special circumstances of this case which, absent that provision, would have required Association to present its case to the District Court. We are persuaded that in this case, involving the potential for immediate injury and irreparable harm to an industry and a substantial impact on the national economy, the delay inherent in proceeding under § 1581(a) makes relief under that provision manifestly inadequate and, accordingly, the court has jurisdiction in this case under § 1581(i).

683 F.2d at 402 n. 5, 69 C.C.P.A. at 175 n. 5; see also American Association of Exporters & Importers—Textile & Apparel Group v. United States, 7 CIT —, 583 F.Supp. 591, 597 (1984), appeal docketed, 751 F.2d 1239 (Fed.Cir.1984).

This case, however, does not present appropriate circumstances for dispensing with access to this Court through the traditional avenues contained in 28 U.S.C. § 1581(a)-(h). Plaintiffs presentation, including evidence adduced at the hearing on the preliminary injunction, is not sufficient to persuade the Court that it should exercise subject-matter jurisdiction under section 1581(i)(3), (4). Nor has there been an adequate showing of irreparable harm or other special circumstances to justify avoiding the usual protest procedure provided by Congress. The plaintiffs proper avenue of recourse is by way of administrative protest pursuant to 19 U.S.C. §§ 1514 and 1515. See United States v. Uniroyal, Inc., 687 F.2d 467, 472, 69 C.C.P.A. 179, 183-84 (1982).

Although, in light of the above, it is not necessary to reach the questions presented in plaintiffs motion for a preliminary injunction, the Court nevertheless wishes to point out that plaintiff has not made a sufficient showing of harm in any event.

Plaintiff alleges injury in the forms of lost sales, lost benefits from past marketing, injury to its reputation as a reliable supplier, and the costs required for developing new products. Plaintiff also avers that it was forced to lay off 75 to 80 employees at its Toledo, Ohio plant and that plaintiff may be forced out of business altogether as a result of the actions of Customs. Plaintiff continues to hold the 360 tons of excluded blend in inventory and is also paying $600 per day demurrage on twelve railcars of sugar awaiting processing.

The exact nature of plaintiffs lost profits is, nevertheless, unknown. Its alleged injuries of lost benefits from past marketing and damage to reputation are not unlike those injuries alleged in 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), which the court found to have been highly speculative.

Furthermore, expeditious administrative review is assured under 19 C.F.R. § 174.-21(b) (1983), which requires that the district director act on the protest within 30 days of filing. The Court perceives no reason why the plaintiffs remedy of filing an administrative protest and seeking judicial review, should it be required, is inadequate. Had the plaintiff timely filed its protest and sought administrative review in the first place, it would now be in a position to seek judicial review if required.

CONCLUSION

For the foregoing reasons, the Court declines to exercise its subject-matter jurisdiction in this case. Given this determination, the defendants’ cross-motion to dismiss must be, and hereby is, granted.

      . Explaining that the Secretary of Agriculture determined that sugars were being imported "in such quantities as to render or tend to render ineffective, or to materially interfere, with the price support operations," Presidential Proclamation No. 4887, 46 Fed.Reg. 62,641 (1981), imposed import fees on all imports of sugars. Proclamation No. 4940, 47 Fed.Reg. 19,657 (1982), substantially increased the import fees imposed by Proclamation No. 4887. Proclamation No. 4941, 47 Fed.Reg. 19,661 (1982), imposed quotas on imports of sugars classified under TSUS items 155.20 and 155.30. Proclamation No. 5071, 48 Fed.Reg. 30,089 (1983), extended quotas to blended sugars classified under TSUS items 183.05, 183.01, 156.45 and 155.-75.

      . Neither party has specified in its pleadings exactly when the importation was attempted and denied.


author: CARMAN, Judge:

text:
    HERAEUS-AMERSIL, INC., Plaintiff, v. UNITED STATES, Defendant.
    Court No. 81-1-00100.
    United States Court of International Trade.
    Dec. 13, 1984.
    Fitch, King & Caffentzis, New York City (Richard C. King, New York City, on the motion), for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Attorney in Charge, Commercial Litigation Branch, New York City (John J. Mahon, New York City, on the cross-motion), for defendant.
   Memorandum Opinion and Order on Plaintiffs Motion to Strike and Defendant’s Cross-Motion to Dismiss in Part.

CARMAN, Judge:

Plaintiff moves pursuant to Rules 8(c) and 12(f) of the Rules of the United States Court of International Trade for an order striking certain denials from the defendant’s answer. Defendant opposes the motion and cross-moves to dismiss in part for failure to state a claim upon which relief can be granted pursuant to rule 12(b)(5).

The underlying dispute pertains to the proper classification of certain imported merchandise known as “fused quartz” or “fused silica.” The United States Customs Service (Customs) classified the merchandise under item 540.67 of the Tariff Schedules of the United States (TSUS), as modified by T.D. 68-9. Plaintiff claims that classification is proper under items 540.11 and 540.41 of the TSUS. Plaintiff, in supporting its proposed classification, claims that at the relevant times “an established and uniform practice” existed within the meaning of 19 U.S.C. § 1315(d) (1982) with respect to the classification of fused quartz and fused silica. Under plaintiff’s theory, Customs could not deviate from that practice until 30 days after publication of a notice in the Federal Register.

Defendant denies that an established and uniform practice existed. Defendant maintains that absent a “finding” that such a practice exists by the Secretary of the Treasury, or a ruling published by Customs pursuant to 19 C.F.R. § 177.10(b) (1983), no established and uniform practice can arise. Defendant therefore concludes that plaintiffs claims as to a uniform practice fail as a matter of law and must be dismissed.

As is evident from paragraph 37 of the complaint, plaintiff believes that because similar merchandise at various ports has been uniformly classified under items 540.-11 and 540.41 since 1963, that this practice constitutes an “established and uniform practice” within section 1315(d).

Defendant’s answer at paragraph 40 offers a simple “Denied” in response to the established and uniform practice claim and further avers that no section 1315(d) “finding” has ever been made. Plaintiff moves to strike this denial, as well as the similar denial in paragraph 42 of the answer, on the ground that the responses constitute defenses that are insufficient as a matter of law.

In response, defendant claims simply that the responses in paragraphs 40 and 42 are sufficient as a matter of law. Defendant also cross-moves to dismiss that part of the complaint relating to an established and uniform practice, paragraphs 35 through 42.

The Court first addresses defendant’s motion to dismiss in part because resolution of this issue impacts largely upon plaintiff’s motion to strike.

I. AN ESTABLISHED AND UNIFORM PRACTICE

Underlying defendant’s motion to dismiss in part is the assumption that “an established and uniform practice” under section 1315(d) can only arise from a formal “finding” by the Secretary or by a “ruling” published pursuant to 19 C.F.R. § 177.10(b) (1983). Plaintiff, on the other hand, asserts that such a practice can be established by actual liquidations over a period of time at many ports.

Subsection (d) of section 1315 was added to the Tariff Act of 1930 by the Customs Administrative Act of 1938, ch. 679, § 6, 52 Stat. 1077, 1081 (codified as amended at 19 U.S.C. § 1315(d) (1982)). Legislative history pertaining to the 1938 Act is sparse, but reveals Congress’ desire “to facilitate efficient administration of the customs laws.” S.Rep. No. 1465, 75th Cong., 3d Sess. 6 (1938). The proposed enactment was termed neither “an importers’ bill nor ... a domestic manufacturers’ bill.” Id. Nevertheless, it would appear that Congress, in subsection (d), by codifying a then-existing administrative practice, was attempting to lend certainty to the importing process. The importing community is thus aided by the provision’s remonstrance that an established and uniform practice not be changed absent public notice. See Customs Administrative Bill: Hearings on H.R. 6738 Before the House Comm. on Ways and Means, 75th Cong., 1st Sess. 132 (1937) (analysis submitted by Treasury Department).

Earlier cases suggest that a section 1315(d) “established and uniform practice” can be predicated on uniform classifications and liquidations at various ports over a period of time. See, e.g., Asiatic Petroleum Corp. v. United States, 59 CCPA 20, 23, 449 F.2d 1309, 1312 (1971) (adopting Asiatic Petroleum Corp. v. United States, 64 Cust.Ct. 47, 58, 309 F.Supp. 1006, 1009 (1970) (Richardson, J., dissenting)); Biddle Sawyer Corp. v. United States, 50 CCPA 85, 92, 320 F.2d 416, 422 (1963); B.R. Anderson & Co. v. United States, 47 Cust.Ct. 215, 226-28, 201 F.Supp. 319, 327-28 (1961). In Biddle Sawyer, the Court of Customs and Patent Appeals expressly considered the issue of whether uniform classification of a certain chemical, in fact, existed. The court concluded:

We find nothing in the testimony or in the exhibits which supports appellant’s contention that there was an established and uniform practice of classifying merchandise of the quality of the imported [merchandise] under paragraph 5. Therefore it was not necessary that a notice be published pursuant to sections 315(d) or 16.10(a).

Biddle Sawyer, 50 CCPA at 92, 320 F.2d at 422. In fact, many cases have passed on the question of whether an actual uniform practice existed at the relevant times. One must therefore conclude that the issue was meaningful to the determination. Otherwise, it would seem that the courts were engaging in useless formulations.

In addition, a predecessor regulation to 19 C.F.R. § 177.10(b), provided that “[i]f there is an established and uniform practice at the various ports,” no higher duty rate could be assessed without public notice. Customs Regulations of 1943, § 16.-10(a) (emphasis added); see B.R. Anderson & Co. v. United States, 47 Cust.Ct. at 227, 201 F.Supp. at 327 (“[i]t is clear that this regulation was issued pursuant to section 315(d) of the Tariff Act of 1930”). Thus, it was Customs’ understanding, originally at least, that section 1315(d) envisioned an “actual” established and uniform practice.

Further, the hearings before the House Ways and Means Committee reflect a general understanding of section 1315(d) in accord with that outlined above.

We recognize that this section is legislation to legalize that which has been the practice of the Department for a number of years, namely, where there has existed a uniform practice, sanctioned by the customs authorities for a number of years, before a change of rate or classification is made by the Department, the Department will allow before placing the same in effect 30 days’ notice after publication of such change. While we recognize the existence of this practice, it has been carried on, we may say, as a matter of executive leniency, but there has been no sanction of law.

Hearings, supra, at 212-13 (statement of American Tariff League).

Defendant’s opposition to the motion of an actual established and uniform practice stems from its blurring of cases where the existence of a section 1315(d) finding was in issue. To be sure, when the Secretary makes a finding that an established and uniform practice either exists or does not exist, that determination is within the Secretary’s congressionally designated discretion. See Washington Handle Co. v. United States, 34 CCPA 80, 86 (1946). Such a determination cannot be disturbed by a court, except, perhaps, for an abuse of that discretion. See Rank Precision Industries, Inc. v. United States, 68 CCPA 78, 84, 660 F.2d 476, 480 (1981). In the absence of an affirmative or negative finding, however, the Court, when properly presented with the issue, may resolve it. In this connection, I well heed Chief Judge Markey’s stern admonition in the Ditbro Pearl case that to hold otherwise “would render § 315(d) a nullity in the hands of a Secretary choosing to refrain from ever making a finding.” Ditbro Pearl Co. v. United States, 62 CCPA 95, 97, 515 F.2d 1157, 1159 (Markey, C.J., concurring).

Defendant objects to the Court making such determinations, contending that “there is no law to apply.” “There are no criteria by which to gauge how long a practice must exist or how uniform it must be.” Defendant’s Memorandum In Opposition, at 24. This view is obviously unfounded since courts have long considered such issues both under section 1315(d), Biddle Sawyer Corp. v. United States, 50 CCPA 85, 92, 320 F.2d 416, 422 (1963), and under the interpretive principle that a “long-established administrative practice,” if found to exist, will bear upon an interpretation of tariff laws, Commonwealth Oil Refining Co. v. United States, 60 CCPA 162, 174, 480 F.2d 1352, 1361 (1973). Indeed, courts have long been guided in this area by inquiring whether the practice was “known, long continued, uniform and general.” Rapken & Co., Ltd. v. United States, 25 CCPA 268, 274 (1938).

In accordance with the above, defendant’s motion to dismiss that part of the complaint relating to an established and uniform practice must be denied, since although no finding or published ruling is alleged, plaintiff may show an established and uniform practice under section 1315(d) by actual uniform liquidations at the various ports over a period of time.

II. MOTION TO STRIKE CERTAIN DEFENSES

Having determined that plaintiff may be allowed to demonstrate whether an actual section 1315(d) practice existed during the relevant times, the Court now turns to plaintiff’s motion to strike certain denials contained in the defendant’s answer.

Plaintiffs’ motion relates to the following:

COMPLAINT
37. “Optical quality fused silica” on or after August 31, 1963, and until liquidation of the entries in issue herein, was uniformly classified by various District Directors or Area Directors of Customs as “glass in the mass: Containing over 95 percent silica by weight” under item 540.11, TSUS, or as “Glass rods, * * *, all the foregoing not processed; Containing over 95 percent silica by weight” under item 540.41, TSUS depending upon its form as imported.
....
40. The uniform classification as described in 37, above, constitutes an actual established and uniform practice.
....
42. Liquidation under item 540.67, TSUS, as amended, is improper where an actual established and uniform practice existed at the time of liquidation, and no notice pursuant to § 315(d) has been published.
ANSWER
40. Denied. Further, defendant avers that the Secretary of the Treasury or his delegate have never made a finding pursuant to 19 U.S.C. § 1315(d) that an established and uniform practice existed regarding the tariff classification of the merchandise in issue.
....
42. Denied.

Plaintiff contends that the defendant, by simply denying the allegation of an established and uniform practice, severely hampers discovery efforts and motion practice. Plaintiff urges that the “defense” in paragraph 40, if it be one, must consist of more than a simple denial.

The Court is therefore called upon to weigh the legal sufficiency of the denials contained in paragraphs 40 and 42 of defendant’s answer.

Rule 8(c) of the Rules of this Court provides in part that “[a] party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies.” The rule, patterned after Rule 8(b) of the Federal Rules of Civil Procedure, is designed to apprise a plaintiff of the defenses with which he will have to contend at trial. Lawyers Cooperative Publishing Co., Federal Procedure § 62.56, at 230 (J. Goger man. ed. 1984); see White v. Smith, 91 F.R.D. 607, 608 (W.D.N.Y.1981). Motions directed to the sufficiency of denials and defenses, such as motions to strike or for a more definite statement, are highly disfavored. Krauss v. Keibler-Thompson Corp., 72 F.R.D. 615, 618 (D.Del.1976). Courts traditionally have allowed such motions only where under no circumstances could the defense prevail, Green Mountain Power Corp. v. General Electric Corp., 496 F.Supp. 169, 171 (D.Vt.1980), where the defense is clearly “insufficient as a matter of law,” Anchor Hocking Corp. v. Jacksonville Electric Corp., 419 F.Supp. 992, 1000 (M.D.Fla.1976), or where the defense “bear[s] no possible relation to the claim asserted,” Blenke Brothers Motors, Inc. v. Chrysler Corp., 189 F.Supp. 420, 422 (N.D.Ill.1960).

Given the stringency of the standard for striking defenses on insufficiency grounds, plaintiff’s motion must be denied. Paragraph 40 of the complaint, operative here, states that the events described in paragraph 37 constitute an established and uniform practice. Defendant’s answer, in relevant part (see supra note 9) simply states, “Denied.” In Berkey Technical Corp. v. United States, 71 Cust.Ct. 275, 380 F.Supp. 786 (1973), the court was confronted with a similar question. In that case, plaintiffs complaint read: “Said articles are not illuminating.” Defendant’s answer was simply: “Denied.” There, Judge (now Chief Judge) Re held that the answer was sufficient as a matter of law, noting that while “a more elaborate answer could have been drafted ..., the denial was neither equivocal nor ambiguous.” Id., 71 Cust.Ct. at 276, 380 F.Supp. at 788.

By the same token here, the complaint asserts that certain acts on the part of Customs constituted an established and uniform practice under 19 U.S.C. § 1315(d). The effect of defendant’s denial is to state that those acts do not constitute such a practice. The “denied” is a “clear and positive response that categorically denie[s] plaintiff’s allegation.” Berkey Technical Corp., 71 Cust.Ct. at 276, 380 F.Supp. at 788. Defendant’s answer at paragraph 40 operates either to deny that the facts alleged constitute an established and uniform practice or that the facts themselves, as alleged, are disputed.

Plaintiff’s entreaties to the effect that it cannot fashion appropriate motion practice or discovery must be rejected. The issue has been framed adequately by the pleadings. It now devolves on plaintiff, through appropriate discovery, to substantiate the claim asserted in paragraphs 35 through 42 of the complaint.

Plaintiff’s motion to strike certain defenses contained in defendant’s answer is denied; defendant’s cross-motion to dismiss in part is also denied.

Order accordingly.

      . Rule 8(c) of the Rules of this Court provides in relevant part:
      Defenses — Form of Denials. A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as true and material and shall deny only the remainder____
      Rule 12(f) in part reads:
      Motion to Strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon him or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense____

      . Item 540.67 of the TSUS, as modified, provides:
      Optical glass in any form, including blanks for spectacle lenses and for other optical elements; non-optical-glass blanks for corrective spectacle lenses; synthetic optical crystals in the form of ingots, segments of ingots, sheets, or blanks for optical elements; all the foregoing not optically worked; polarizing material, in plates or sheets, not cut to shape or mounted for use as polarizing optical elements;
      ....
      Other optical glass and synthetic optical crystals; polarizing material ...... 25% ad val.

      . Item 540.11, TSUS, as modified, provides:
      Glass, in the mass; glass, crushed, powdered, or flaked (frostings); and waste or scrap glass; all the foregoing except glass provided for in items 540.21 and 540.27:
      Glass in the mass:
      Containing over 95 percent silica by weight................ 7.5% ad val.
      Item 540.41, TSUS, as modified, provides:
      Glass rods, tubes, and tubing, all the foregoing not processed:
      Containing over 95 percent silica by weight..................7% ad val.

      . 19 U.S.C. § 1315(d) (1982) provides:
      No administrative ruling resulting in the imposition of a higher rate of duty or charge than the Secretary of the Treasury shall find to have been applicable to imported merchandise under an established and uniform practice shall be effective with respect to articles entered for consumption or withdrawn from warehouse for consumption prior to the expiration of thirty days after the date of publication in the Federal Register of notice of such ruling; but this provision shall not apply with respect to the imposition of antidumping duties, or the imposition of countervailing duties under section 1303 of this title.

      . 19 C.F.R. § 177.10(b) (1983) provides:

        Rulings regarding a rate of duty or charge. Any ruling regarding a rate of duty or charge which is published in the Customs Bulletin will establish a uniform practice. A published ruling may result in a change of practice, it may limit the application of a court decision, it may otherwise modify an earlier ruling with respect to the classification or valuation of an article or any other action found to be in error or no longer in accordance with the current views of the Customs Service, or it may revoke a previously-published ruling or a previously-issued ruling letter. No ruling published under the provisions of this section will have the effect of changing either an earlier published ruling or a practice established by other means by imposing a higher rate of duty or charge on an article unless the earlier ruling or practice has been determined to be clearly wrong.

      . Section 1315(d) was designed to promote uniformity in classification matters. It does not apply to other customs determinations, such as appraisement. Peugeot Motors of America, Inc. v. United States, 8 CIT —, at —, 595 F.Supp. 1154 at 1157 (1984).

      . There is no strict formula for issuing a "finding” under section 1315(d). Such a finding can take many forms, and, indeed, the cases reflect this. See Rank Precision Indus., Inc. v. United States, 68 CCPA 78, 660 F.2d 476 (1981) (letter from Division Director); Ditbro Pearl Co. v. United States, 62 CCPA 95, 515 F.2d 1157 (1975) (abstracted Treasury Decision); Asiatic Petroleum Corp. v. United States, 59 CCPA 20, 449 F.2d 1309 (1971) (letter from Acting Commissioner of Customs). The proper test for a section 1315(d) finding is merely whether a clear impression is given through appropriate language that such a finding is being made. Asiatic Petroleum, 59 CCPA at 23, 449 F.2d at 1312; 64 Cust.Ct. at 59, 309 F.Supp. at 1014 (Richardson, J., dissenting).

      . Recently, in Siemens America, Inc. v. United States, 692 F.2d 1382 (Fed.Cir.1982), the Federal Circuit (formerly the Court of Customs and Patent Appeals) indicated that a formal "finding” is not a precondition to application of section 1315(d). See id. at 1384. The court assumed for argument’s sake that a finding was not necessary and then considered plaintiff's offer of proof on the question. Because proof on the issue of an established and uniform practice was found wanting, the court held against the importer.
      The case strongly suggests that an actual practice is cognizable under section 1315(d). By considering the sufficiency of the evidence on the point, the Federal Circuit implied that with adequate proof, such a practice can be found, in fact, to exist.

      . The second sentence of paragraph 40 of defendant’s answer is largely superfluous since the court has determined that a formal “finding” by the Secretary is not a prerequisite to the operation of 19 U.S.C. § 1315(d).


author: RESTANI, Judge:

text:
    NORTH AMERICAN FOREIGN TRADING CORP., Plaintiff, v. The UNITED STATES, Defendant.
    Court No. 82-1-00110.
    United States Court of International Trade.
    Dec. 28, 1984.

      Fitch, King & Caffentzis, James Caffentzis, New York City, for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Attorney in Charge, Jerry P. Wiskin, Civ. Div., U.S. Dept, of Justice, New York City, for defendant.
   OPINION

RESTANI, Judge:

Plaintiff, an importer of solid-state electronic digital watches, has moved for partial summary judgment in this action seeking to invalidate Executive Order 12371, 47 Fed.Reg. 30449 (1982), on the ground that it was a retroactive withdrawal of duty-free status afforded plaintiff’s merchandise under the Generalized System of Preferences, 19 U.S.C. §§ 2461-2465 (1982). Defendant United States has cross-moved for summary judgment urging the validity of the executive order. Defendant, however, concedes that the merchandise should be reliquidated under TSUS 688.36 which is a new classification set forth in the executive order.

“The GSP is a trade program, established by Title V of the Trade Act of 1974 which authorizes the President to provide duty-free treatment for eligible articles from qualifying developing nations for the purpose of promoting their economic development.” Florsheim Shoe Co., Div. of Interco v. United States, 744 F.2d 787, 788 (Fed.Cir.1984) (footnote omitted). The President, however, is not given total freedom to select any product for GSP treatment. Among other things he is prohibited from granting duty-free status to either watches or import sensitive electronic devices. 19 U.S.C. § 2463(c)(1)(B) and (C) (1982).

Apparently, it was the practice of the Customs Service to routinely classify solid-state electronic digital watches under the applicable categories for watches, TSUS 716.18 and 715.05, until March 25, 1982. On that date, the Court of Customs and Patent Appeals decided that because the digital watches did not involve mechanical movement, the devices were not properly classifiable as watches under TSUS 716.18 or 715.05 but rather under TSUS 688.45 as “electronic articles and parts thereof not specifically provided for.” United States v. Texas Instruments, Inc., 69 C.C.P.A. 136, 673 F.2d 1375 (1982). Accordingly, solid-state electronic digital watches might have received the GSP treatment available to items under TSUS 688.45 had the President not issued Executive Order 12371 which reclassified the digital watches in the new category of TSUS 688.36.

In issuing the executive order on July 12, 1982, the President stated that his purpose was to “clarify that certain import sensitive articles are and since the enactment of the Trade Act of 1974 have been precluded from eligibility for duty-free treatment pursuant Section 503(i)(l) [19 U.S.C. § 2463 (1982)] of the Trade Act ....” 47 Fed. Reg. 30449. The executive order was to affect “articles entered, or withdrawn from warehouse for consumption, on or after the day following the date of [the] Order, and for all articles previously entered for which liquidation has not been made final as of such date.” 47 Fed.Reg. at 30450.

Plaintiff argues that the President did not follow the statutorily mandated procedure in withdrawing GSP status. The statute which governs withdrawal of duty-free treatment is section 504(a) of the Trade Act of 1974, 19 U.S.C. § 2464 (1982). That section provides:

The President may withdraw, suspend, or limit the application of the duty-free treatment accorded under section 2461 of this title with respect to any article or with respect to any country; except that no rate of duty may be established in respect of any article pursuant to this section other than the rate which would apply but for this subchapter. In taking any action under this subsection, the President shall consider the factors set forth in sections 2461 and 2462(c) of this title.

The President did not purport to comply with § 504(a) because he did not believe he was withdrawing GSP status. Rather, he believed he was clarifying existing status.

The intent of the Trade Act of 1974 was to exclude watches from GSP treatment because they are import sensitive. S.Rep. No. 1298, 93rd Cong., 2d Sess. 42, 224, reprinted in 1974 U.S.Code Cong. & Ad.News, 7186, 7216, 7354. Unlike the tariff schedules the relevant portion of the Trade Act of 1974 does not refer to watch or mechanical “movement”, and the parties here do not appear to dispute that solid state electronic watches are “watches” in common and commercial meaning. There is no evidence before the court which would lead one to conclude that Congress, in either the statute or the legislative history, was using the term “watches” in other than a common or commercial sense. To the contrary 19 U.S.C. § 2463 specifically refers to items of the tariff schedules with regard to footwear, but omits reference to the tariff schedules with regard to textiles, electronic articles, steel, and watches. Therefore, the court finds that Congress did not intend the GSP status of solid-state digital watches to depend on the tariff schedule meaning of “watches”.

In one sense the part of Executive Order 12371 at issue was not necessary because GSP status for digital watches never existed. (Of course, in a practical sense the order was necessary to end the confusion existing after the Texas Instruments case.) Since the Executive Order did not withdraw GSP status, § 504(a) was not applicable. The President was simply not free to make the determinations contemplated by § 504(a). His course was dictated by 19 U.S.C. § 2463(c)(1)(B), excluding watches from the GSP program.

One of plaintiffs principal arguments is based on Teters Floral Products Co. v. United States, 7 CIT —, 586 F.Supp. 960 (1984). Plaintiff claims that the duty-free status of its goods was fixed at the time of entry and that the executive order was thus an attempt to retroactively alter a vested right to GSP treatment. Since there was no preexisting right to GSP treatment this argument fails. The court notes, however, that plaintiff misreads the court’s decision in Teters. That case held that if Congress wished to mandate a change in the ordinary rule fixing the status of duties at the time of entry, Congress would have made the mandate explicit. The case did not decide that duty status is always fixed at entry or that Congress has prevented the President from altering the ordinary rule regarding the time of fixing of duty status when the President is performing legislative functions. In Executive Order 12371 the President acted for Congress in establishing a different time than entry for fixing the duty status of solid-state electronic digital watches.

Along this line plaintiff also argues that Congress itself must specifically state that it intends legislation to be retroactive in order for such legislation to be upheld. Once again this argument is inapposite because the executive order did not have the type of retroactive effect plaintiff alleges. Nonetheless, once Congress delegates authority to the President, it is the President’s intent alone which determines whether an executive order is to be retroactive. Sea-Land Service, Inc. v. I. C. C., 738 F.2d 1311, 1314 (D.C.Cir.1984).

Since no material factual disputes prevent entry of judgment, judgment will be granted pursuant to Court of International Trade Rule 56. Accordingly, the court finds Executive Order 12371 valid. The parties have agreed through the pleadings that the subject articles are therefore properly classifiable under TSUS 688.36. The Customs Service is thus directed to refund the difference between the original assessed duties and the correct duties with interest from date of summons to date of payment pursuant to 28 U.S.C. § 2644 (1982), and defendant’s motion for summary judgment is hereby GRANTED.

      . Plaintiff's reliance on Part 3 of the Trade Act of 1974, 19 U.S.C. § 2151 etseq., which calls for hearings and advice to the President in connection with trade agreements is inapposite.

      . 19 U.S.C. § 2461 provides:
      The President may provide duty-free treatment for any eligible article from any beneficiary developing country in accordance with the provisions of this subchapter. In taking any such action, the President shall have due regard for—
      (1) the effect such action will have on furthering the economic development of developing countries;
      (2) the extent to which other major developed countries are undertaking a comparable effort to assist developing countries by granting generalized preferences with respect to imports of products of such countries; and
      (3) the anticipated impact of such action on United States producers of like or directly competitive products.
      Section 2462(c) concerns only the selection of countries, rather than products, for treatment under the GSP program and is therefore not relevant to this case.

      . Under General Headnote 3(c)(ii) to the tariff schedules, the goods at issue would have received GSP treatment because item 688.45, the classification applicable under Texas Instruments, was preceded by the letter "A” signifying such treatment. But the general headnotes must be read together with the remainder of the statute and in accordance with Congressional intent. If the literal words of the general head-notes conflict with obvious statutory intent, they will be disregarded. See Bob Jones University v. United States, 461 U.S. 574, 103 S.Ct. 2017, 2025, 76 L.Ed.2d 157 (1983); Church of the Holy Trinity v. United States, 143 U.S. 457, 460, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892); Ambassador Division of Florsheim Shoe v. United States, et al., 748 F.2d 1560 at 1563-64 (Fed.Cir.1984).

      . We have before us the uncontradicted statement of the United States that at the time of enactment of the Trade Act of 1974 the practice of the Customs Service was to classify digital watches as "watches”. It is clear from Texas Instruments that this was the practice in the years immediately before that decision. Plaintiff argues, however, that this practice may not have been known to Congress in 1974. Because the court finds that Congress did not define "watches" according to the tariff schedules, it is irrelevant whether Congress knew of Customs’ interpretation of the tariff schedules.

      . Under the executive order the duty status of plaintiffs goods was not fixed. See Executive Order 12371, 47 Fed.Reg. at 30450, making merchandise entered, but for which no entries had been liquidated, subject to the executive order. Liquidation of plaintiff's merchandise was not final because a protest and civil action were filed. 19 C.F.R. § 159.1 (1984).