Slip Op. 07-23 UNITED STATES COURT OF I NTERNATIONAL

TRADE

____________________________________ : NUFARM AMERICA’S, I NC., :

: Plaintiff, :

: : v. :

: Befor

e: WALLACH, J udge UNI TED STATE S, : Consol. Court No.: 02-00162 : Defendant. : ____________________________________: [Plaintiff’s Motion for Summary Judgment is DENI ED and Defendant’s Cross-Motion for Summary Judgment is GRANTED.] Dated: February 15, 2007

Joel R. Junker & Associates ( Joel R. Junker ), for Plaintiff NuFarm America’s, I nc. Robert D. McCallum, Jr. , Assistant Attorney Gene ral, Barba ra S. Willia

ms , Acting

Attorney in Charge , Inte

rnationa l Trade F ield Off

ice, Comme

rcial L itigation Branc

h, Civil Divi sion, U.S. Department of Justic e; Beth C. Brotman , Office of Assistant Chief Counsel, Inter national Trade Litig ation, U. S. Customs an d Borde r Protec tion, for

Defend ant Unite d States. OPINION Wallach, Judge: I INTRODUC TION Plaintiff Nufarm America’s, I nc. (“Nufarm”) arg

ues that the requirement to file a consumpti on entry

and to pay

duty and rela ted fee s upon expor

t to Canada

on merchandise imported temporarily under bond, pursuant to 9813.00.05, Harmonized Tariff Schedule of the1 “The Temporary Importation Under Bond [TI B] classification is a special program under the tariff s chedule . The re quireme nts of 19 C. F.R. § 181 .53, amon g other s, are pe

rmissible conditions placed upon the option to temporarily de fer duty by importing goods under bond for specific enumerated purposes (see Subcha pter XII I, Chapter 98, (HTSUS)). An importer a t the time of en

try may choose e ither to pr

esent the mercha ndise unde

r a TI B provis ion and po st a bond or make a consumption entry and pay the duty . HQ 228931 (August 9, 2001) (Further Review of Protest No. 3001-00-100227).

2 HTSUS Subhe ading 2 918.90.20 provides : 2918 Carboxy

lic acids with addit

ional oxy gen fu nction an d their anhydrides, ha

lides, peroxides, and peroxyacids; their halog enated, 2 United Sta

tes (“HT SUS”) (20 00), unde r 19 C.F.R . § 181.53, promulg ated pur suant to th e North American Free Trade

Agreement (“NAFTA”) Implementation Act in acc ordance with NAFTA Article 303, violates Article I, Section 9, Clause 5 of the United States Constitution (“the Export Clause”) . This cou

rt has jur isdiction p

ursuant t o 28 U.S.C. § 1581(a) . Beca use the du

ties in question are related to the merchandise’s importation and not its export, the statute remains within constitutional limitations and Plaintiff’s Motion for Summary Judgment is denied. For these same reasons, Defendant’s Cross-Motion for Summary Judgment is granted.

II BACKGROUND Nufarm imported chemical products into the United States under HTSUS subheading 9813.00.05 as articles to be processed into articles manufac tured or produced in the United States; as a result the products were entered tempora rily free of duty, and duties wer

e deferred until the ti

me of expor

t. 1 Consolidated Complaint (“Complaint”) ¶ 13; Answer to Consolidated Complaint (“Answer”) ¶ 1, 13. The imported chemicals wer e subject to duty at the g eneral ad valorem rates for chemicals falling unde r subheading 2918.90.20, 2 HTSUS, but p ay ment of tho sesulfonat ed, nitra ted, or ni trosated derivat ives (con.): * * * 2918.90.20 Other.............9.3% 1/ Free (A, CA, E, I L, J, MX)

3 HTSUS Subhe ading 9 813.00.05 provides : Article s to be re

paired, altered

or proce ssed (inc luding pr ocesses which re sult in articles manufactured or produced in the U nited States).........Free (CA, IL, MX)

4 There was no Canadian duty on the products at the time of export; as a result, Plaintiff paid the full U.S. duty rate on the e ntered values for the imported merchandise, at the g eneral ad valorem duty ra

tes applicable to goods classified under subheading 2918.90.20 during the years in which Nufarm’s chemicals were imported. Complaint ¶¶ 15, 19; Def endant’s Statement of Undisputed Facts ¶ 2.

5 The United States Customs Service was renamed the Burea u of Customs and Border Protection of the Department of Homeland Security, effective March 1, 2003. See H.R. Doc. No. 108-32 (2003).

3 duties were deferred beca use the merchandise was entered under subheading 9813.00.05. 3 Defendant’s Statement of Undisputed Facts ¶ 1. Once processed, the new product was then exported to Canada. 4 Complaint ¶ 15; Answer ¶ 15. Following the export to Canada, Plaintiff filed the require d consumpt

ion entrie s and paid

the full du

ty r ate, app licable merchan

dise processing fees, and made an of fer in compromise to the United States Customs Service (“Customs”) 5 that resu

lted in the cancel lation of l iquidate d damag es. Def endant’ s Response

to Plaintiff’s Statement of Material Facts at 2; Plaintiff’s Response to Defendant’s Cross-Motion for Summa

ry Judgment ( “Plaintif

f’s Response”) a

t 15; lette r from Joel

R. Junker to t

he court , dated Janu

ary 25, 2007, D ocket No . 90. Plaint iff’s consumption e

ntries we re liquida ted, and i t6 Plaintiff filed the following protests related to its liquidated consumption entries: Port of

Seattle Protests: Protest Nos. 3001-00-100227, 3001-00-100196, 3001-01-100049; Port of Chicago Protests: Protest Nos. 3901-01-100296, 3901-01-100979, 3901-01-101008, 3901-01- 101135, 3901-01-101178, 3901-01-101043.

4 timely filed related pr

otests based on the claim that assessment of duties under 19 C.F.R. § 181.53 violates the Export Clause. 6 Complaint ¶ 20; Answer ¶ 20. Nufarm’s protests on its entries at the Port of Seattle were denied on Aug ust 28, 2001, and its protests on the entries at the Port of Chicago were de nied on March 27, 2002, after Customs’ Further Re

view. Comp laint ¶ 22; Answer ¶ 22. Customs c oncluded

in its determination that the “[a]ssessment of duty per 19 C.F .R. § 181.53 was in accordance with law and reg ulations, ” was the

refore constituti onal, and

denied Pla

intiff’s protest in full. Compl aint ¶ 22 (quoting HQ 228931). On March 13, 2003, the cour t consolid ated Nuf arm Amer

ica’s, I nc. v. Uni ted State s, Court No. 02-00571 under Nufarm America’s, I nc. v. United States, Court No. 02-00162. Motions under review in this opinion are Plaintiff’s Motion for Summary Judgment and Defendant’s Cross-Motion for Summary Judgment. Oral Argument was held on January 17, 2007.

III STANDARDOF REVIEW The standard of review when deter mining whether an agency ’s regulation violates the Constitution involves a presumption of constitutionality on behalf of the reg ulation. See Motor Vehicles Mfrs. Assn. of U.S., Inc. v. State F arm Mut. Auto Ins. Co. , 463 U.S. 2 9, 103 S. Ct. 2856, 77 L. Ed. 443 (1983) (finding that regulations enjoy a presumption of validity, albeit one7 Plaintiff does not challenge the constitutionality of the related statutes in this action. 5 not as strong as that accorded to statutes promulga ted by Congr

ess). When looking at an agenc y’ s interpr

etation o f a statut

e by Congre ss, 7 a court is to give deference to the agency

after determin ing: whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter . . . . If, however, the court determines Congress has not directly addressed the precise question at issue, the court doe s not simply

impose its own constr

uction on t

he statute . . . . Rathe

r, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agenc y's a nswer is based on a permissible construction of the statute. Chevron U .S.A. I

nc. v. Na tural Res ources D efense

Council , 467 U.S. 83 7, 842-43 , 104 S. Ct. 2778, 81 L . Ed. 2d 694

(1984). C

ustoms reg

ulations in

terpreting the

tariff s tatute ar

e entitle d to the heightened degree

of Chevrondeference. Haggar Appar el Co. v. United States , 526 U.S. 380, 392, 119 S. Ct. 1392, 143 L. Ed. 2d 480 (1999). In de termining the outco me of a mo tion for su mmary judgmen t, a cour t must look to whether there remain any “genuine issues as to any material fact” in dispute on the matter. Anderson v. Liberty

Lobby , Inc. , 477 U.S. 242, 247, 106 S. Ct. 2505, 2509, 91 L. Ed. 2d 202, 211 (1986). The inquiry the refore is not into factual matters, but whether either pa rty is entitled to a judgment as a matter of law. Id. Under USCIT R. 56(c), summary judgment may be

granted when “the pleadings, depositions, answers to interrog atories, and admissions on file, together with the affidavits, if any , show that there is no genuine issue as to any material fact and that the moving party is e

ntitled to a judgment as a matter of law.” USCI T R. 56(c).8 19 C.F.R. § 181.53(a )(2) sta tes, in pe rtinent pa rt: Where a good is imported into the United States pursuant to a duty -deferral program and is subsequently withdrawn from the duty- deferral program for exportation to Canada or Mexico or is used as a material in the production of another good that is subsequently withdrawn from the duty- deferral program for exportation to Canad

a or Mexic o, and pr

ovided tha

t the goo d is a “g ood subjec t to NAFTA d

rawbac k” within t

he meani ng of 19 U.S.C. 3333 and is not d escribe d in § 181.45 of

this part, the documentation require d to be file d under th is section in connection with the exportation of the good shall, for purposes of this chapter, constitute an entry or w

ithdrawal for consumption and the exported good shall be subject to duty which sha

ll be asse ssed in ac cordanc e with par agrap h (b) of t his section. 19 C.F.R. § 181.53(a

)(2)(i) (A). I

n addition , 19 C.F.R. § 181.53( b)(5) sta tes: Temporary

importation under bond . . . duty shall be assesse d on the good on the basis of its condition at the time of its importation into the United States. Such duty shall be paid no later tha n 60 calendar day s after either the date of exportation or the date of entry into a duty-defe

rral program of Canada or Me xico, except that, upon filing of a proper claim under para graph (a)(3) of this section, the duty shall be waived or reduced in an amount that does not exceed the lesser of the total amount of duty pay able on the good under this section or the total amount of customs duties paid to Canada or Mexico. 19 C.F.R. § 181.53(b)(5).

6 IV DISCUSSION Plaintiff argues that 19 C.F.R. § 181.53 8 is unconstitutional both on its face and in effect because it violate s the Export

Clause’s prohibition on placi

ng a tax or

duty on items in t

he cours e of their export. Plaintiff’s Motion for Summary Judgment (“Plaintiff’s Motion”) a t 5. According to Nufar m, the re gulation alway

s operat es uncon stitutiona

lly b y its own terms because it provides for the assessment of duties at the time of export on merchandise that was previously imported. Id. at 5-6. Nufarm further arg ues that the regulation is unconstitutional in its operation, stating9 Deferred duties are waived upon e xport to non-NAFTA countries and imposed upon export to NA

FTA cou ntries, w ith reduction of dut

y po ssible in c ertain c ircumsta nces. U. S. Note 1(c), c hapter 9 8, subcha

pter XI II , HTSUS. 7 that the charge or exaction at issue is a duty that applies directly to exports. Id. at 8. Be cause Plaintiff interprets the policy and struc ture of 19 C.F.R. § 181.53 as requiring the assessment of duty as a result

of the product’s export to Canada or Mexico, Plaintiff concludes that the Constitution’s prohibition on taxes and duties on exports from the United States is violated by the operation of the regulation. Id. Defend ant count ers that 1 9 C.F.R. § 1 81.53 doe s not viola te the Expor

t Clause be cause the liability for the duty

was imposed at the time of the product’s importation into the United States; the payment of the duty was simply defer

red until the goods were exported to another NAFTA country . Memorandum in Support of Defendant’s Cross-Motion for Summary Judgment and in Opposition to Plaintiff’s Motion for Summary Judgment (“Defe ndant’s Memo”) at 2. The Gov ern men t p oi nt s t o du ty de fer ral pro vi si ons in U.S . No te 1 (c) , ch apt er 9 8, s ubc hap ter XIII, HTSUS, and in the subheading under which Nufarm’s goods were entered (9813.00.05, HTSUS), as well a s to NAFT

A Article 303, which detail how duty deferr al works a

nd how pre

viously imposed duties are calculated once defe rral is no longer applicable. 9 Id. at 5-6. Defendant conclude s that bec ause the duties in q

uestion a re to be i mposed ba sed on an

event pr ior to

ex po rt at io n a nd ar e m er el y assessed at the time of exportation, the regulation is constitutional both on its face and in operation. Id. at 15.8 A Plaintiff Bears the Burden of Overcoming the Presumption of Validity The Export

Clause of

the Unite d States Con stitution r eads, “N o Tax or Dut

y shall be lai d on Articles exported from any State.” U.S. Const. art. 1, § 9, cl. 5. This prohibition has been construed by the Supre

me Court to “categorically bar[ ] Congress from imposing any tax on exports.” United States v. U.S. Shoe Corp. , 523 U.S. 360, 363, 118 S. Ct. 1290, 140 L. Ed. 2d 453 (1 998) ( citi ng United Sta tes v. I nt’l Bus. Machine s Corp. (I BM) , 517 U.S. 8 43, 852, 11 6 S. Ct. 1793, 13 5 L. E d. 2d 124 ( 1996)). F urther, the Court has held th at “a g eneral tax, laid on

all property a

like, and not levied on goods in course of exportation, nor because of their intended exportation, is not within the constitutional prohibition.” Turpin v. Burge ss , 117 U.S. 504, 507, 6 S. Ct. 835, 29 L. Ed. 988 (1886). In or der for a regu lation to be

deemed u

nconstitu tional, Pla

intiff mus t overco me the ba sic presumption of validity. Thus, “the eleme ntary rule is that eve

ry rea sonable construction must be resorted to, in order to save a [statute] from unconstitutionality.” Edward J. DeBartolo Corp. v. Fla. Gul f Coast B ldg. & C onstr. Tr ades Coun

cil , 485 U.S. 568, 575, 108 S. Ct. 1392, 99 L. Ed. 2d 645 (1988 ) (quo ting Hooper v . Califor nia , 155 U.S. 648, 657, 15 S. Ct. 207, 39 L. Ed. 297 (1895)). Though the presumption of validity for an agency ’s regulation is somewhat less than that afforded to an act of Congre ss, Motor Vehicle Manufacturers Ass’n of U.S., I nc. , 463 U.S. 29, Nufarm still has the burden of overcoming a pre sumption that the regulation follows Congressional intent and is therefore constitutional. See Moon v. Freeman , 379 F.2d 382, 391 (9th Cir. 1967) (finding that the burden of demonstrating that a la w is unconstitutional falls on the party cha

llenging its validity)

.10 NAFTA A rticle 30 3(3) sta

tes: Where a good is imported into the territory of a Party pursua

nt to a duty defer

ral program and is subsequently exported to the territory of a nother Party, or is used as a mate rial in the producti on of ano ther go od that is su bsequen tly e xported to the territory of

another Party, or

is substituted by an identical or similar good use d as a mate rial in the producti on of ano ther go od that is su bsequen tly e xported to the territory of

another Party, the

Party from whose te

rritory the g ood is exported: a) shall assess the customs duties as if the exported good had been withdrawn for domestic consumption; and b) may waive

or reduce such customs duties to the extent permitted under paragraph 1. NAFTA art. 303(3), 32 I .L.M. at 683, implemented by the North American Free Tra de Agreement I

mplementation Act, Pub. L. 103-182, 107 stat. 2057 (1993). 9 B 19 C.F.R. § 181.53 Do es Not F acially Vi olate the Export Cla use Plaintiff claims that 19 C.F.R. § 181.53 is unconstitutional on its face. Plaintiff’s Motion at 6. Defendant responds that, when looking at the re gulation’s language in its full context and alongside the relevant NAFTA a nd HTSUS provisions, the regulation is within constitutional constraints because the duty in question is explicitly intended to be assessed on the goods as imported, not in rela

tion to thei

r status a s exports. D efenda nt’s Memo a

t 14-15; see North American Free Trade

Agreement, U.S.-Can.-Mex, December 17, 1992, 32 I .L.M. 289 (1993). NAFTA provides a sy stem of trade preference f or its member countries. Article 303 10 seeks to avoid the abuse of trade prefer ences in the form of duty

deferral by

requiring that duties be paid on non-NAFTA components of goods exported to NAF TA countries, thus guarding against the establishment of “export platforms,” or importing g oods solely for the purpose of later expo rting th em in orde

r to avoid duties tha

t would ha

ve other wise bee n assesse d. Customs implement s Article

303 in 19 C.F .R. § 181.5 3, which r eads, in p ertinen

t part:11 For examp le, Plainti ff uses the followi ng exce rpt from 1 9 C.F.R. § 1 81.53: “ [W]here a good . . . was imported temporarily free of duty

for repair, alteration or processing . . . and is subsequently exported

to Canada or Mexico, duty shall be assessed on the good . . . .” Plaintiff’s Motion at 6. The complete sentence provides that the duty is assessed on the basis of the condition of the g ood at the

time of its i

mport. 10 Except in the case of a good imported from Canada or Mexico for repair or alteration, where a good, regardless of its origin, was imported temporarily free of duty for repa

ir, alteration or processing (subheading 9813.00.05, Harmonized Tariff Schedule of the United States) and is subsequently exported to Canada or Mexico, dut

y shall be as sessed on

the goo d on the ba sis of its c ondition a t the time of its importation into the United States. Such duty shall be paid no later than 60 ca le nd ar da ys a ft er ei th er th e d at e o f e xp or ta ti on or th e d at e o f e nt ry i nt o a du tydeferr al prog ram of Ca nada or M exico, exce

pt that, up on filing

of a prop er claim under paragraph (a

)(3) of this section, the duty sha ll be waived or reduced in an amount that does not exceed the lesser of the total amount of duty payable on the good under this section or the total amount of customs duties paid to Canada or Mexico. 19 C.F.R. § 181.53(b)(5). The regulation thus specifica lly provides for a duty

that is to be deferred and then later “a ssessed on the good on the bas is of its condition at t he time of

its importation into the United States.” Id. (emphasis added). Plaintiff misinterprets the language of 19 C.F.R. § 181.53 in its Motion. 11 The regulation’s languag e presents a clear implementation of a duty deferral process, tracking the stated intent of NAFTA Article 303. The langua ge in the challenged re gulation clearly requires that the duties in question are to apply to the goods as a result of their status as imports, not as exports. Thus, 19 C.F.R. § 181.53 is not unconstitutional on its face.

C 19 C.F.R. § 181.53 is Constitutional in Effect Plaintiff also argues that the regulation is unconstitutional in operation, claiming that duties ar e imposed

under the regula tion not be cause of

the fac t that the goods wer e importe d to11

the United States or because of their alteration, repa ir, or processing, but rather beca use the goods

were e xported spe cifical ly to a NAFTA

country . Plaintiff

’s Motion a

t 9. Thus, a

ccordin g to Nufarm, for all other imports the obligation to pay duty is avoided by

exporting to a non-NAFTA country and a

rises by failing

to export, and this discrepancy a mounts to a violation of the Export Clause. Id. Defendant responds that the entire policy and structure of the regulation involves the calculation of previously

imposed but temporarily defe rred duties, emphasizing that they are import, not export, duties. Defendant’s Memo at 15. The Government further notes the distinction betwee

n taxes and

duties imposed on goods at the time

of exporta

tion vers us those assessed at the time of exportation but imposed at an earlier time. Id. Becau se the dut ies in question w ere not i

mposed but

assesse d at the time of expor t, Defen dant arg ues, the r egulat ion is constitutional in operation. Id. The constitutional prohibition of duties on exports “does not mean that articles exported

are re lieved f

rom the pr

ior ordinary

burdens o f taxation w

hich res t upon all property similarly situated. The exemption attaches to the export and not to the article before its exportation.” Cornell v. Coyne , 192 U.S. 4 18, 427, 24 S. Ct. 383, 48 L. Ed . 504 (190 4) (emph asis adde d); see A.G. Spalding & Bros. v. Edward , 262 U.S. 66, 43 S. Ct. 485, 67 L. Ed. 865 (1923) (holding that when a ta xed sale oc curs in th e export process the tax is unc onstitutional); Consolidation Coal Co. v. United States , 64 Fed. Cl. 718, 724 (Ct. Fed. Cl. 2005) (“Both sides agre e that the fee would be constitutional if imposed solely on extraction, which would be the equiva lent of the manufacturing stage in Cornell . On the ot her hand , given

defenda nt’s conc ession tha

t the sale occurs i n the expor

t proces s, the fe e, if hel d to be a ta x, would be u

nconstitu tional pursuant to A.G. S paldi ng if imposed at the time the coal is sold.” (citation omitted)). In Pace v. B urgess , 9212 Plaintiff asserted during oral arg ument that upholding the regulation as it is written would be doing something no court has ever done in the application of the Export Clause. The courts have clearly

established that the proper construction of the Export Clause is that no tax or duty can be c ast upon the process of exporting goods. However , the regulation in question places no such du

ty on export. Ra

ther the duty is imposed on the go ods before their export, as was distinguished in Cornell

and Consolidation Coal

. Cornell , 192 U.S. 4 18; Consolidation Coal , 64 Fed. C l. at 7 24 (ci ting Pace , 92 U.S. 37 2; Turpin , 117 U.S. at 507). Thus, the assessments made in Pace when the

Court uphe ld the cha

rges on items to be

exported a s well as t

hose made

in Consolidation Coal , Cornell , Turpin , and others are directly applicable here. Though in later cases su ch as U.S. Shoe Corp. , 523 U.S. at 369, and Moon , 379 F.2d at 389-90, courts focused on th e dist incti on bet ween a t ax or duty and a regulat ion wh en app lying Pace , the analysis quoted in the text above arrives at the conclusion of constitutionality using a reasoning similar to that us ed he re an d i s e qu al ly a pp li ca bl e i n l ig ht of th e g ui de li ne s p ro vi de d b y Cornell and Consolidation Coal

. 12 U.S. 3 72, 23 L. E d. 657 (187 6), the Supr eme C ourt d

iscus sed the expo

rt exe mptio n in th e con

text of a st amp ta x pl aced on tobac co bou nd for expo rt, st ating: The plaintiff contends that the charge f or the stamps required to be placed on packages of manufactur

ed tobacco intended for exportation was and is a duty on exports . . . . But it is manifest that such was not its character or object. The stamp was intended for no other purpose than to separate a nd identify the tobacc o which the manufacturer de sired to export, and t hereby , instead of taxing it, to relieve it from the taxation to which other tobacco was subjected. I t was a means devised to prevent fraud, and secure the faithful carry

ing out of the declared intent with regard to the tobacco so marked. The payment of twenty

-five cents or of ten cents for the stamp used was no more a tax on the export than was the fee for clearing the vessel in which it was transported, or for making out and certify ing the manifest of the cargo. It bore no proportion whateve r to the quantity or value of the package on which it was af fixed

. 12 Id. at 374-75 (emphasis added). Clearly there is a distinction between charges imposed for

reasons independ ent of the export pro cess and

those in pl ace due

to an item’ s export. The duty set forth by

19 C.F.R. § 181.53 is in place due to the goods’ import into the United Sta

tes, not th eir expor

t. Plaintif

f mistake s the distin

ction in its

argume nt by looking t o the fact that goods exported to non-NAFTA countries a re treated differently

than goods exported to NAFTA

countrie s, rathe

r than pin pointing the time a

t which the

duty was impose d in order

to13 Defend ant decl ined to ar

gue tha t the choi ce to use

19 C.F.R. § 181.53 to d

efer du ty until export

constitute s a waive

r of a known righ

t. 13 determine whether all items are similarly situated. See Plaintiff

’s Motion a

t 9. The iss

ue is firs t whether the duty is place d on all imports alike . In s uch a cir cumstanc e, the de ferra

l of duties is a tempora ry option for

importer s, providi

ng for t he asses sment of the duty at a late r time, wh

ich in this case coincides with the export of the goods. Ultimately , every importe r meeting the 19 C.F.R. § 181.53 standard has the same option of pay ing the duty immediately

or deferring payment to a later

date. 13 The fact that eve

nts occur ring sub sequent t

o importat

ion could r

esult in the waive r or red uction of the duty is irrele vant to the

analy sis of whe

ther all goods are

similarly situated regarding its implementation. As in Pace , the duty

at issue h ere is no t a tax on g oods being exported. Rather, 1 9 C.F.R. § 181.53 implements the guidelines provided by NAFTA Article 303 and U.S. Note 1(c) regarding import duty

deferral. Much like the measure in Pace , the purp ose behin d these du

ty deferral provisions is in part to prevent abuse, this time by discouraging the use of the United States as an “export platform.” The regulation in question clear ly meets constitutional standards by imposing duties on imports, allowing for temporary duty

deferral, and then assessing duties at the time of export. See Ammex, Inc. v. United States , 341 F. Supp. 2d 1308 (CIT 2004), aff’d , 419 F.3d 1 342 (Fe d. Cir. 200 5) (distin guishing “assess ment,” me aning f ixing of sp ecific a

mounts of liability, from “imposition,” meaning the responsibility to pay

a particular duty , and finding that assessment of duty upon export is within constitutional constraints). As the constitutional focus is on the impos ition of du ties and n ot their a ssessmen

t, the duty deferr al proce ss set for

th in 19 C.F.R. § 181.53 es capes E xport Clause

duty exemption. Plaintiff

theref ore fai ls to meet i

ts14

burden; because the regulation oper ates as an import duty and not a duty on exports, 19 C.F.R. § 181.53 is c onstitutional in eff ect.

V

CONCLUSION For the reasons stated above, Nufar m’s Motion for Summary Judgment is denied and the Government’s Cross-Motion for Summary Judgment is granted.

____/s/ Evan J. Wallach__________ Evan J . Wal lach, Judge Dated: February

15, 2007 New York, New YorkUNITED STATES COURT OF I NTERNATIONAL

TRADE

_________________________________________ : NUFARM AMERICA’S, I NC., : : Plaintiff , : : v. : Before: Wall ach, J udge

: Court No.: 02-00162 UNI TED STATE S, : : Defendant. : _________________________________________:

JUDGMENT ORDER This case having come before the court upon the Motion for Summary Judgment filed by Plaintiff Nufarm America’s, I nc. (“Plaintiff’s Motion”), and the Cross Motion for Summary Judgment filed by Defe

ndant United States Government (“Defendant’s Motion”); the c ourt having reviewed all papers and ple adings on file herein, having hea rd oral argument by

each party , and aft

er due de liberati on, havin g reac hed a de cision he

rein; now , in confo

rmity with said decision, it is hereby ORDERED A

DJUDGED A

ND DECREED that Plai

ntiff’s M otion is DEN

IED, and it is further ORDERED ADJUDGED AND DECREED that Defendant’s Motion is GRANTED.

_____/s/ Evan J. Wallach______________ Evan J . Wal lach, Judge Dated: February

15, 2007 New York, New York