NATIONAL CUSTOMS BROKERS & FORWARDERS ASSN. v. US

• Decision Date: 23 February 1990
• Docket Number: Court No. 89-07-00400.
• Parties: NATIONAL CUSTOMS BROKERS AND FORWARDERS ASSN. OF AMERICA, Plaintiff, v. The UNITED STATES, et al., Defendants.
• Court: U.S. Court of International Trade

731 F. Supp. 1076

NATIONAL CUSTOMS BROKERS AND FORWARDERS ASSN. OF AMERICA, Plaintiff, v. The UNITED STATES, et al., Defendants.

Court No. 89-07-00400.

United States Court of International Trade.

February 23, 1990.

Tompkins & Davidson, Harvey A. Isaacs, Brian S. Goldstein, and Laurence M. Friedman, New York City, for plaintiff.

Stuart M. Gerson, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Civ. Div., U.S. Dept. of Justice, New York City, Susan Burnett Mansfield and Richard McManus, U.S. Customs Service, for defendants.

OPINION

RESTANI, Judge:

In National Customs Brokers v. United States, 13 CIT ___, 723 F.Supp. 1511 (1989) (NCBFA I) the court denied plaintiff, National Customs Brokers and Forwarders Association, Inc.'s (NCBFA), motion seeking a preliminary injunction in this matter. The facts relevant to this dispute are set forth in detail in that opinion. This action may be summarized as an action to compel defendants, the Secretary of the Treasury and the Commissioner of Customs, to promulgate regulations establishing a certain hierarchy among those permitted to enter merchandise transported by international courier services in consolidated shipments. Plaintiff contends that a broker chosen by a courier service may not make entry of individual shipment in a consolidated shipment if another broker has been chosen by the owner or purchaser of the individual shipment.¹ It is not disputed that without utilizing a licensed customs broker a courier service may not enter merchandise that it does not own or purchase.

Plaintiff has now moved under CIT RULE 56.1 for summary judgment and a declaratory judgment, a permanent injunction, and the issuance of a writ of mandamus. Defendants, the Secretary of the Treasury and the Commissioner of Customs, oppose the motions and cross move for summary judgment. In addition, defendants move for dismissal of the action under CIT RULE 12 and contend that the court lacks jurisdiction over the subject matter and that plaintiff lacks standing.

The court first turns to the questions of jurisdiction and standing raised by defendants in NCBFA I and in its present motion. Defendants claim that the court lacks jurisdiction under 28 U.S.C. § 1581(i)(1), (2) & (4) because the action does not involve administration of laws "providing for revenue from imports or tonnage or for tariffs, duties, fees, or other taxes on the importation of merchandise." Defendants' Brief in Opposition to Plaintiff's Motion for Summary Judgment at 9. Defendants rely heavily on K Mart Corp. v. Cartier Inc., 485 U.S. 176, 108 S.Ct. 950, 99 L.Ed.2d 151 (1988), discussed extensively in NCBFA I, 13 CIT ___, 723 F.Supp. at 1514-15.

As the court has distinguished K Mart previously it is unnecessary to further discuss that case. Suffice it to say that while the issue here does not directly "involve" a protest, it does involve the administration of the laws with respect to tariffs and revenue from imports. See 28 U.S.C. § 1581(i)(1), (2) & (4) and 19 U.S.C. § 1484(a)(2)(D) (entry of merchandise). The entry process is the key administrative act leading to the imposition of tariffs and the collection of revenues from imports. See also NCBFA I, 13 CIT at ___, 723 F.Supp. at 1513-15 (there is "no manifestation of Congressional intent that some avenue of judicial review other than section 1581(i) is to be followed or that opportunity for review is to be denied entirely"). Accordingly, defendants' arguments on this point are to no avail.

Defendants' standing challenge also fails. While the court has assumed some conflict among the members of NCBFA, defendants' arguments that the association has not suffered any injury are not convincing.² Defendants rely particularly on Arjay Assoc., Inc. v. Bush, 891 F.2d 894 (Fed.Cir.1989). There the Federal Circuit affirmed dismissal of the action because plaintiff demonstrated no colorable right to the continued importation of goods excluded by Executive Order. The Circuit Court pointed out, however, that Congress may choose the terms upon which the right to import may be exercised, id. at 896-897, and once it has done so, a party with a right so given by Congress may bring an action to protect its interests. Here, plaintiff's members are directly affected by the implementation of section 1484. In what manner entry of goods is to be made is of unique interest to plaintiff's members and Customs's improper implementation of section 1484 would affect them directly and, for the most part, adversely.³ Therefore, defendants' standing arguments fail. See also NCBFA I, 13 CIT at ___, 723 F.Supp. at 1514-16. And see Franchise Tax Bd. v. Alcan Aluminum, Ltd., ___ U.S. ___, 110 S.Ct. 661, 665, 107 L.Ed.2d 696 (1990).

As noted in NCBFA I, the issue here rests on the interpretation of 19 U.S.C. § 1484(a)(2)(C) (1988) which states:

When an entry of merchandise is made under this section, the required documentation shall be filed either by the owner or purchaser of the merchandise or, when appropriately designated by the owner, purchaser, or consignee of the merchandise, a person holding a valid license under section 1641 of this title. When a consignee declares on entry that he is the owner or purchaser of merchandise, the appropriate customs officer may, without liability, accept the declaration. For the purposes of this subtitle, the importer of record must be one of the parties who is eligible to file the documentation required by this section.⁴

NCBFA continues to maintain that the "appropriately designated" language in the quoted subsection is restrictive enough to require mandatory deconsolidation of shipments under a master bill of lading or airway bill whenever a bill of lading or airway bill for an individual shipment covered by the master bill designates a specific broker other than the one for the master bill. According to plaintiffs, in that situation expedited entry by the broker for the consolidated shipment would be improper. Essentially, therefore, the question presented is whom did Congress intend to control the entry of goods under section 1484.

In order to resolve this question the court must turn first to the text of the statute. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). In the absence of explicit definitions, the court must interpret the statute's words in their ordinary, contemporary, and common meaning. Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979). The meaning of the words must also be construed in the context of their enactment by the legislature. Watt v. Alaska, 451 U.S. 259, 266-67, 101 S.Ct. 1673, 1677-78, 68 L.Ed.2d 80 (1981).

According to Webster's dictionary, "appropriate" is defined as "especially suitable," "fit," "proper," and "belonging peculiarly." Webster's Third New Int'l Dictionary 106 (1981). The term "a person" "appropriately designated" in section 1484(a)(2)(C) therefore can be read only to signify one who is designated in a suitable or proper manner. According to the same subsection such person must also hold a valid customs brokers license. If this person, therefore, has been designated in a proper or suitable manner by either the owner, purchaser, or consignee, and if this person is a properly licensed customs broker, such person may make entry of the items in the shipment.

In reading section 1484, the court concludes that the section's structure indicates no choice on the part of Congress as to the "appropriately designated" person apart from the specific requirements of section 1484. Plaintiff's interpretation can be viewed only as a rewriting of the statute to restrict Congress's broad approach, and particularly, to eliminate the word "consignee" in the first sentence of section 1484(a)(2)(C).

The term "consignee" has traditionally been a broad one. For tariff purposes it is not synonymous with "owner" or "purchaser." See 19 U.S.C. § 1484(a)(2)(C); 19 C.F.R. § 101.2 (1989) and Customs Directive 3530-02 (November 6, 1984). It includes both nominal consignees and ultimate consignees. See R. Sturm, Customs Law and Administration § 2.3 (3rd ed. 1989) and 19 C.F.R. § 141.54 (1989). If courier services are "nominal consignees," they are nonetheless "consignees" within the meaning of 19 U.S.C. § 1484(a)(2)(C). Under the statute a consignee may designate a licensed broker to enter goods, even if the consignee may not enter goods itself.

Plaintiff argues, however, that it is only trying to achieve the statutory aim of requiring the "importer of record" to control entry. Plaintiff's Brief in Support of its Motion for Summary Judgment at 6. This argument is inapposite. "Importer of record" is mentioned in section 1484(a)(2)(C). That section, however, states simply that the importer of record "must be one of the parties who is eligible to file the documentation required by this section." According to the statute, such a person is either the owner or purchaser, or a licensed broker "appropriately designated" by the "owner, purchaser or consignee." Emphasis Supplied.

The introductory language in section 1484(a)(1) is also of no help. There Congress indicated that "one of the parties qualifying as `importer of record'" was to engage in the acts necessary to comply with the requirements of section 1484. Emphasis Supplied. This language does not require a specific party to act pursuant to section 1484. Indeed this language indicates an absence of Congressional desire to create a statutory hierarchy or priority list among those persons qualified to make entry under section 1484.

In contrast to plaintiff's interpretation of the statute, defendants' position has the "substantial virtue of giving meaning to all the words of the statute." See Clark-Cowlitz v. Federal Energy Regulatory Commission, 826 F.2d 1074, 1088 (D.C.Cir. 1987) (citing United States v. Menasche, 348...