                           Slip Op. 03 - 67

            UNITED STATES COURT OF INTERNATIONAL TRADE

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VANETTA U.S.A. INCORPORATED,            :

                           Plaintiff, :
                                             Consolidated
                  v.                    :    Court No. 97-01-00117

UNITED STATES,                          :

                           Defendant. :

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                           Memorandum & Order


[Cross-motions for summary judgment as to
 classification of animal-feed additives
 denied.]


                                             Dated:   June 25, 2003

     Barnes, Richardson & Colburn (James S. O'Kelly) for the
plaintiff.

     Robert D. McCallum, Jr., Assistant Attorney General; John J.
Mahon, Acting Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Bruce N. Stratvert); and Office of Assistant Chief
Counsel, International Trade Litigation, U.S. Bureau of Customs and
Border Protection (Joseph M. Spraragen), of counsel, for the
defendant.

          AQUILINO, Judge:     The parties have interposed cross-

motions for summary judgment in this consolidated action, which

contests U.S. Customs Service classification of certain additives

imported from Italy for animal feeds.       While this court's careful,

albeit belated, review of these motions does not lead it to

conclude that such judgment can be entered, they do substantiate,

yet again, the accumulated wisdom encompassed by USCIT Rule 56(d)

that such motions aid in
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Court No. 97-01-00117                                              Page 2


     ascertain[ing] what material facts exist without substan-
     tial controversy and what material facts are actually and
     in good faith controverted[,]

thereby streamlining preparation for and conduct of the trial on

the remaining material issue(s) of fact.


                                    I

           Subsequent   to   the   filing   of   plaintiff's   motion   for
summary judgment, the defendant chose to respond with such a motion

of its own.   This form of response has precipitated a formal motion

to strike by the plaintiff, which takes the position that defend-

ant's cross-motion "was not timely filed in accordance with the

scheduling order in this case."


           That order of the court issued pursuant to USCIT Rules 1

and 16 set a date certain for submission of any dispositive

motions.   The plaintiff met the deadline, whereas the defendant

twice moved for, and obtained, formal extensions of time "to

respond to plaintiff's motion for summary judgment". Whereupon the

plaintiff presses that "[i]n neither instance did defendant seek a

modification of the scheduling order or request more time to file

its own motion for summary judgment." Plaintiff's Motion to Strike

Defendant's Motion for Summary Judgment, p. 2.


           The precision of this motion to strike is unimpeachable,

but, when faced with a similar challenge by the plaintiff in
Consolidated
Court No. 97-01-00117                                        Page 3


Rollerblade, Inc. v. United States, 24 CIT 812, 116 F.Supp.2d 1247

(2000), aff'd, 282 F.3d 1349 (Fed.Cir. 2002), the court determined

to accept "as such"     the defendant's cross-motion for summary

judgment on the ground that the

     practice of combining the cross-motion for summary judg-
     ment with the party's response to the original motion for
     summary judgment is an efficient use of court resources.

24 CIT at 813 and 116 F.Supp.2d at 1250, n. 1.   Since the motion to

strike at bar does not show any prejudice to the plaintiff as a

result of the nature of defendant's chosen response, this court

discerns no basis for deviation from the determination in Roller-

blade.   Indeed, all parties are at liberty to posit motions for

summary judgment whenever, in the exercise of sound analysis, they

come to conclude "that there is no genuine issue as to any material

fact and that the[y are] entitled to a judgment as a matter of

law." USCIT Rule 56(c).   Moreover, it has long been the mandate in

an action like this that the court reach "the correct result[] by

whatever procedure is best suited to the case at hand."     Jarvis

Clark Co. v. United States, 733 F.2d 873, 878, reh'g denied, 739

F.2d 628 (Fed.Cir. 1984) (emphasis in original).         Here, that

procedure may well include cross-motions for summary judgment.


                                  II

          The court's jurisdiction to hear and decide this matter

is pursuant to 28 U.S.C. §§ 1581(a), 2631(a).       Cf. Defendant's

Reply Brief in Support of Motion for Summary Judgment and in
Consolidated
Court No. 97-01-00117                                         Page 4


Opposition to Plaintiff's Response, p. 2, n. 3 ("the Government

withdraws its jurisdictional objections previously advanced").


           As required by Rule 56, plaintiff's motion for summary

judgment is accompanied by a statement of the material facts as to

which it contends there is no genuine issue to be tried.    Included

therein are the following averments:

     4.    The imported merchandise consists of Menadione
           Sodium Bisulfite (hereinafter "MSB"), Menodi-
           one Sodium Bisulfite Complex (hereinafter
           "MSBC"), Menadione Dimethylpyrimidinol Bisulf-
           ite (herein after "MPB")and Menadione Nicotin-
           amide Bilsulfite (hereinafter "MNB"). . . .

     5.    The chemical structure of naturally occurring
           Vitamin K1 phylloquinone is 2-methyl-3-phytyl-
           1, 4-naphthoquinone. . . .

     6.    The chemical structure of naturally occurring
           Vitamin K2 menaquinone is 2-methyl-3-all-
           trans-polyprenyl-1, 4-naphthoquinone. . . .

     7.    Vitamin K1 and vitamin K2 are vitamins for
           purposes of the HTSUS and are classified under
           heading 2936, HTSUS. . . .

                              *   *   *

     11.   When MSB, MSBC, MPB or MNB is ingested, the
           menadione in these products is converted into
           a form of vitamin K2, specifically vitamin
           K2(20). . . .

     12.   The principal use of the imported products is
           as a component in animal feeds. . . .

     13.   Customs excluded the imported products from
           classification under heading 2936 because, as
           interpreted by Customs, this heading does not
           include "synthetic substitutes for vitamins".
           . . .
Consolidated
Court No. 97-01-00117                                       Page 5


     14.   The phrase "synthetic substitute for a vita-
           min" does not appear anywhere in the HTSUS
           statute enacted by Congress. . . .

     15.   Defendant defines "synthetic substitute for a
           vitamin" as "a synthesized chemical compound
           that is not found in nature but has vitamin
           activity. This differs from a synthetically
           reproduced vitamin whose structure is found in
           nature but has been synthesized from other
           chemicals." . . .

                              *   *   *

     17.   The imported MSB was classified by Customs as
           "Ketones and quinones, whether or not with
           other oxygen function, and their halogenated,
           sulfonated, nitrated or nitrosated deriva-
           tives: . . . Halogenated, sulfonated, nitrated
           or nitrosated derivatives: Aromatic: . . .
           Other", under subheading 2914.70.20, HTSUS,
           dutiable at 11% ad valorem. . . .

     18.   The imported MSB has the same menadione moiety
           (2-methyl-1, 4-naphthoquinone) as naturally
           occurring Vitamin K1 phylloquinone and natu-
           rally occurring Vitamin K2 menaquinone. . . .

     19.   The SB or sodium bisulfite portion of MSB is
           excreted by the body after ingestion. . . .

     20.   From a nutritional perspective, the menadione
           (2-methyl-1, 4-naphthoquinone) moiety is the
           most important component of MSB. . . .

                              *   *   *


     21.   The imported MSBC was [also] classified by
           Customs . . . under subheading 2914.70.20,
           HTSUS, [supra, para. 17,] dutiable at 11% ad
           valorem. . . .

     22.   The imported MSBC has the same menadione
           moiety (2-methyl-1, 4-naphthoquinone) as na-
           turally occurring Vitamin K1 phylloquinone and
           naturally occurring Vitamin K2 menaquinone.
           . . .
Consolidated
Court No. 97-01-00117                                       Page 6


     23.   MSBC is essentially MSB with additional sodium
           bisulfite added for increased stability.
           . . .

     24.   The SBC or sodium bisulfite complex portion of
           MSBC is excreted by the body after ingestion.
           . . .

     25.   From a nutritional perspective, the menadione
           (2-methyl-1, 4-naphthoquinone) moiety is the
           most important component of MSBC. . . .

                              *   *   *

     27.   The chemical structure of MPB is 2-methyl-1,
           4-naphthoquinone 2-hydroxy-4, 6-dimethylpyri-
           midine bisulfite. . . .

     28.   The imported MPB has the same menadione moiety
           (2-methyl-1, 4-naphthoquinone) as naturally
           occurring Vitamin K1 phylloquinone and natu-
           rally occurring Vitamin K2 menaquinone. . . .

     29.   The PB portion of MPB is excreted by the body
           after ingestion and has no nutritional value.
           . . .

     30.   From a nutritional perspective, the menadione
           (2-methyl-1, 4-naphthoquinone) moiety is the
           most important component of MPB. . . .

                              *   *   *


     32.   Nicotinamide is also known as niacinamide.
           . . .

     33.   Niacinamide is a vitamin described in heading
           2936, HTSUS. . . .

     34.   The bisulfite portion of MNB is excreted by
           the body after ingestion. . . .

     35.   The nicotinamide portion is not excreted by
           the body after ingestion and provides niacin
           or niacinamide activity. . . .
Consolidated
Court No. 97-01-00117                                           Page 7


       36.    The nicotinamide portion of MNB is a vitamin,
              as described in subheading 2936.29.1530,
              HTSUS. . . .

                                 *   *   *

       38.    Defendant is unaware of any uses of MNB as a
              component of animal feeds other than as a
              source of vitamin K activity and niacin. . . .1


              The defendant admits without any reservation all but one
of these averments. See Defendant's Response to Plaintiff's State-

ment of Material Facts as to Which There is No Genuine Dispute, pp.

1-4.       As for that single, enumerated paragraph, 4, supra, the de-

fendant admits it with regard to MSB and MSBC but

       [a]vers that none of the imported merchandise is
       described on the commercial invoices as MNB, or MPB,
       or their equivalents.


Id. at 1, para. 4.       As for defendant's own statement of material

facts in support of its cross-motion, the plaintiff admits the

following averments contained therein:


       2.     MSB, MNB and MSBC are aromatic derivatives of
              quinones.

       3.     MPB is an aromatic heterocyclic       compound
              containing a pyrimidine ring.

                                 *   *   *

       5.     Menadione is not the natural precursor of
              vitamins K1[] in plants and K2 in bacteria.



       1
       Plaintiff's Rule 56(i) Statement of Material Facts as to
Which No Genuine Dispute Exists (citations in support of each
averment omitted).
Consolidated
Court No. 97-01-00117                                       Page 8


     6.   The Menadione found in nature is not a pro-
          vitamin of Phylloquinone.2


          In sum, there is agreement between the parties with

regard to many of the salient facts.    Hence, the plaintiff also

agrees that HTSUS chapter 29 (1994)

     contemplates that some organic chemical products may be
     described in more than one of its headings. MSB, MSBC,
     MPB and MNB are examples of four such products.

Plaintiff's Memorandum, p. 12.   This means that MSB, MNB and MSBC

are at least arguably covered by HTSUS subheading 2914.70.20 and

MPB by subheading 2933.59.70, as now posited by the defendant.


          Be such concurrence as it may, a court

     first construes the language of the heading, and any
     section or chapter notes in question, to determine
     whether the product at issue is classifiable under the
     heading. Only after determining that a product is class-
     ifiable under the heading should the court look to the
     subheadings to find the correct classification for the
     merchandise. See GRI 1, 6. Furthermore, when determin-
     ing which heading is the more specific, and hence the
     more appropriate for classification, a court should
     compare only the language of the headings and not the
     language of the subheadings. See GRI 1, 3.


Orlando Food Corp. v. United States, 140 F.3d 1437, 1440 (Fed.Cir.

1998); Schulstad USA Inc. v. United States, 26 CIT     ,    , 240

F.Supp.2d 1335, 1338 (2002)("GRI" referring to the HTSUS General


     2
       Compare Defendant's Statement of Additional Material Facts
as to Which There is No Genuine Issue to be Tried, p. 1, paras.
2, 3, 5, 6 with Plaintiff's Response to Defendant's Statement of
Additional Material Facts as to Which There is No Genuine Issue
to be Tried, paras. 2, 3, 5, 6.
Consolidated
Court No. 97-01-00117                                       Page 9


Rules of Interpretation). As indicated above, the headings favored

by the defendant are as follows:

     2914 Ketones and quinones, whether or not with
          other oxygen function, and their halogenated,
          sulfonated, nitrated, or nitrosated deriva-
          tives[.]

     2933 Heterocyclic compounds with nitrogen hetero-
          atom(s) only; nucleic acids and their salts[.]

Headnote 3 to HTSUS chapter 29 provides, however, that

     [g]oods which could be included in two or more of the
     headings of this chapter are to be classified in that one
     of those headings which occurs last in numerical order.


The plaintiff relies on this note in pressing for classification of

its merchandise under heading 2936, to wit:


     Provitamins and vitamins, natural or reproduced by
     synthesis (including natural concentrates), derivatives
     thereof used primarily as vitamins, and intermixtures of
     the foregoing, whether or not in any solvent[.]


With regard to this rubric, the defendant complains that the

plaintiff

     ignores, completely, the Government's key point that
     while the MSB, MSBC, MPB, and MNB undoubtedly are pro-
     vitamins (albeit artificial provitamins), they assuredly
     do not reproduce natural provitamins2, and hence, cannot
     be described, and are not described, by the language of
     Heading 2936, HTSUS, which, by its terms, only covers
     natural vitamins, natural provitamins, reproductions of
     natural vitamins or provitamins, and derivatives of na-
     tural vitamins or provitamins.

Defendant's Reply Brief, pp. 1-2 (emphasis in original, footnote 3

omitted).   Footnote 2 to this reply states in part:
Consolidated
Court No. 97-01-00117                                               Page 10


     Reproduce means to produce a copy of something. Inasmuch
     as the HTSUS heading, in issue, Heading 2936, provides
     for "[p]rovitamins and vitamins, natural or reproduced by
     synthesis," clearly, the only provitamins described by
     this language are natural provitamins or reproductions of
     natural provitamins, which MSB, MSBC, MPB, and MNB
     plainly are not. . . .

Id. at 2, n. 2 (emphasis in original).


                                        III
              This reply by the defendant is the crux of the contro-

versy at bar.     Having studied the affidavits of Dr. John W. Suttie,

Dr. T.M. Frye, and Dr. Mark W. LaVorgna, as well as Binder, Benson

& Flath, Eight 1,4-Naphthoquinones From Juglans, 28 Phytochemistry,

pp. 2799-2801 (1989), and Shils & Young, Vitamin K, Modern Nu-

trition in Health and Disease, ch. 14 (7th ed. 1988), proffered by

the plaintiff in support of its instant motion, and having compared

their rather esoteric contents with those of the two affidavits of

Dr. Robert E. Olson filed on behalf of the defendant, the court is

unable   to    conclude   that   the    parties   cross-motions   completely

satisfy the requirement that "there be no genuine issue of material

fact."   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)

(emphasis in original).      The foregoing material matter articulated

by the defendant must be addressed at trial and subjected to cross-

examination, "which has been said to be the surest test of truth

and a better security than the oath."             The Hanover Ins. Co. v.

United States, 25 CIT        ,         , Slip Op. 01-57, p. 21 (2001).
Consolidated
Court No. 97-01-00117                                     Page 11


           Thus, the parties' cross-motions for summary judgment

must be, and they hereby are, denied.    Counsel are directed to

confer and propose to the court on or before August 1, 2003 a

schedule for the necessary preparation for, and conduct of, the

trial of those issue(s) of fact which are not already agreed to

herein and which cannot be stipulated to in the pretrial order.

           So ordered.
Dated:   New York, New York
         June 25, 2003




                                                Judge
