Acrilicos v. Regan
| Decision Date | 09 September 1985 |
| Docket Number | Court No. 84-09-01247. |
| Citation | 617 F. Supp. 1082 |
| Parties | Derivados ACRILICOS, Plaintiff, v. Donald T. REGAN, Secretary, Department of Treasury, et al., Defendants, American Yarn Spinners Association— Long Staple Product Group, Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
Adduci, Dinan & Mastriani, Leslie Alan Glick, Louis S. Mastriani, Jeffrey A. Meeks, Washington, D.C., and Barbara A. Murphy, for plaintiff.
Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Platte B. Moring, III, Washington, D.C., for defendants.
Miller & Chevalier, Chartered, Donald Harrison and Kenneth B. Reisenfeld, Washington, D.C., for defendant-intervenor.
Plaintiff, a Mexican exporter of acrylic yarn to the United States, challenges the legality of action taken by defendants to change a statistical headnote of the Tariff Schedules of the United States Annotated (TSUSA)1 and to retain plaintiff's product within a TSUSA item for which the quota for products from Mexico was filled for 1983 and 1984.
In November 1984 the United States and Mexico amended an agreement establishing a quota for the importation of products under the TSUSA item which includes plaintiff's product. Defendants have moved to dismiss the action as moot. Plaintiff, seeking to avoid the quota, maintains that its product is not covered by the amendment and opposes the motion.
In 1979 the United States and Mexico entered into an Agreement on Trade in Textiles and Textile Products (the Agreement)2 in accordance with the Arrangement Regarding International Trade in Textiles (Multifiber Arrangement or MFA).3 The Agreement stated, inter alia that "the Government of the United Mexican States will limit Mexican exports to the United States of America of products classified in TSUSA 310.5049 ... to 3.5 million square yards equivalent...."4
In 1981 the Agreement was extended until the end of 1985, and the restrictions on yarns imported under item 310.5049, TSUSA, were eliminated.
In March, 1983, the United States determined that products imported under item 310.5049, TSUSA, were disrupting the domestic market and requested Mexico to enter consultations under the Agreement to limit exports. See 48 Fed.Reg. 22188 (May 17, 1983). In June, 1983, the United States unilaterally established a quota for annual imports of goods from Mexico under item 310.5049, TSUSA, at 759,421 pounds, under a formula established in the Agreement. Since Mexico shipped a total of 1,634,085 pounds during the first six months of 1983, this quota was filled when announced for 1983 and 1984.
Plaintiff's product was imported into the United States under item 310.5049, TSUSA, until June, 1983. In July, 1983, after the United States announced that further imports from Mexico under this item were prohibited for 1983 and 1984, plaintiff filed a "Request for Classification Ruling" with the United States Customs Service (Customs) seeking to have its product considered "textured" within the statistical headnote to Subpart E, Part I, Schedule 3, TSUSA,5 and thus classifiable under item 310.5015, TSUSA. Merchandise classifiable under item 310.5015, TSUS, was not subject to a quota under the Agreement.
Customs prepared a letter to plaintiff's counsel dated December 1, 1983, stating that it considered plaintiff's product "textured" under the headnote and that a ruling to that effect would be issued thirty days from the date of publication of a notice in the Federal Register. The letter was not mailed, nor was such a notice published. Instead, on December 15, 1983, the 484(e) Committee6 published a notice of changed definition of "textured" in the Federal Register.7 48 Fed.Reg. 55759.
On March 8, 1984, the 484(e) Committee changed the headnote, effective April 1, 1984, to its present wording.8 Plaintiff concedes its merchandise has been within the wording of the headnote since December 15, 1983.9
In April, 1984, plaintiff attempted to enter a "test shipment" of its merchandise valued at less than $250.00 under item 310.5015, TSUSA. Customs found the merchandise classifiable under item 310.5049, TSUSA, and refused entry. Plaintiff protested this decision under section 514(a) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1514(a)(1982). The protest was denied in July, 1984.
In September, 1984, plaintiff filed this action, invoking jurisdiction under 28 U.S.C. § 1581(a), (h), and (i)(3), (4).
Plaintiff states four causes of action. Plaintiff first alleges that the 484(e) Committee did not change the statistical headnote for a statistical purpose and therefore acted ultra vires. Plaintiff contends that this change was made at the request of the Committee for the Implementation of Textile Agreements (CITA)10 for the sole purpose of retaining plaintiff's product in item 310.5049, TSUSA, then subject to an embargo.
Plaintiff also complains that Customs made a "ruling" on November 23, 1984 that its product was "textured" within the existing headnote, and that this "ruling" was modified without following procedures required by 19 C.F.R. § 177; that various defendants violated the prior notice and comment procedures of the Administrative Procedure Act, 5 U.S.C. §§ 551, et seq. and deprived plaintiff of a property interest without due process of law in violation of the Fifth Amendment to the United States Constitution by changing the headnote.
On November 8, 1984, the United States and Mexico concluded an exchange of notes amending the Agreement to inter alia, limit imports of products under item 310.5049, TSUSA, to 1,000,000 pounds in 1984 and to 750,000 pounds in 1985. CITA announced new restraint limits for products under item 310.5049, TSUSA, effective November 27, 1984. 49 Fed.Reg. 46457 (Nov. 26, 1984).
Defendants11 move to dismiss the action as moot. On March 7, 1985 the Court issued an order dismissing as moot plaintiff's claim under section 1581(a), since Customs said they would allow the "test shipment" subject to that claim to enter,12 directing defendants to respond to plaintiff's interrogatories and requests for production of documents so that the action would not be further delayed, and requesting that the parties brief several questions relating to mootness of the claims raised under 28 U.S.C. § 1581(h) and (i).
The Court now holds that the action is moot.
Article III of the Constitution limits the federal judicial power to cases and controversies. This "limits the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process...." United States Parole Commission v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980). The mootness doctrine applies "when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969).
Defendants argue that plaintiff has no interest in the resolution of its claims in this action since the amount of merchandise plaintiff can import into the United States has been determined by the 1984 amendment to the Agreement.13
Section 204 of the Agricultural Act of 1956, as amended, 7 U.S.C. § 1854 (1982), gives the President authority to agree with another nation to limit textile imports. Plaintiff says it does not challenge the President's authority under Section 204 to negotiate textile import restraint agreements with foreign governments and to carry out the negotiated agreements.14
Rather, plaintiff claims that this action—which asks the Court to restore the previous statistical headnote definition of "textured" and order plaintiff's product entered item 310.5015, TSUSA—is not moot because (1) the United States and Mexico did not agree to limit the amount of plaintiff's product which could be imported into the United States, and (2) plaintiff will have to pay duties under an antidumping duty order if its product is imported under item 310.5049, TSUSA, but not if it is imported under item 310.5015, TSUSA. The Court disagrees with both contentions.
The interpretation of an international agreement is a question of law; "courts interpret treaties for themselves...." Kolovrat v. Oregon, 366 U.S. 187, 194, 81 S.Ct. 922, 926, 6 L.Ed.2d 218 (1961). In interpreting an international agreement it is "elementary ... that the language ... must be the logical starting point." Day v. Trans World Airlines, 528 F.2d 31, 33 (2d Cir.1975); see Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180, 102 S.Ct. 2374, 2377, 72 L.Ed.2d 765 (1982).15
The parties could refer to textile products by name or any other reference understood by them. They refer to such products by reference to the TSUSA. The parties agreed in 1979 to, inter alia, limit imports of yarns "classified in TSUSA 310.5049."16 Plaintiff's product was considered by the United States and Mexico to come within that item.17 The United States and Mexico continued to refer to "TSUSA 310.5049" when they amended the Agreement in 1984. The coverage of item 310.5049, TSUSA, had changed,18 and reference to the item constituted an amendment of the coverage of the Agreement.
Plaintiff concedes that its product was within item 310.5049 as the item was defined at the time of the amendment, but makes two arguments why its product is not covered by the reference item 310.5049 in the amendment. Plaintiff says that the Mexican government "was forced to utilize the current definition of the tariff schedules that were in effect at the time of the amendment."19 It also asserts that Mexico "justifiably expected that what was defined by the United States as textured when the Agreement was signed in 1979, would be continued to be defined as textured throughout the life of the Agreement."20
These arguments contradict each other— plaintiff's first...
To continue reading
Request your trial
-
3V, Inc. v. U.S.
...78 L.Ed.2d 58 (1983) (citing DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974)); Acrilicos v. Regan, 9 CIT 442, 446, 617 F.Supp. 1082, 1085 (1985); U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 395, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). If a claim fails the Artic......
- Norco Products, Inc. v. Mecca Development