American Frozen Food Institute, Inc. v. US

• Citation: 855 F. Supp. 388
• Decision Date: 09 June 1994
• Docket Number: Court No. 94-02-00101. Slip Op. 94-97.
• Parties: AMERICAN FROZEN FOOD INSTITUTE, INC.; Green Giant Foods, a Division of the Pillsbury Company; J.R. Simplot Company; National Food Processors Association, Plaintiffs, v. The UNITED STATES; Lloyd Bentsen, Secretary of the Treasury; John P. Simpson, Deputy Assistant Secretary of the Treasury; and George J. Weise, Commissioner of Customs, Defendants.
• Court: U.S. Court of International Trade

855 F. Supp. 388

AMERICAN FROZEN FOOD INSTITUTE, INC.; Green Giant Foods, a Division of the Pillsbury Company; J.R. Simplot Company; National Food Processors Association, Plaintiffs, v. The UNITED STATES; Lloyd Bentsen, Secretary of the Treasury; John P. Simpson, Deputy Assistant Secretary of the Treasury; and George J. Weise, Commissioner of Customs, Defendants.

Court No. 94-02-00101 Slip Op. 94-97.

United States Court of International Trade.

June 9, 1994.

Neville, Peterson & Williams, John M. Peterson, George W. Thompson, Peter J. Allen and Margaret R. Polito, New York City, and Pillsbury Madison & Sutro, Reginald D. Steer, Lynn L. Miller and Richard J. Nelson, San Francisco, CA, for plaintiffs.

Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, Velta A. Melnbrencis, Asst. Director, Commercial Litigation Branch, Civ.Div., U.S. Dept. of Justice, John K. Lapiana, Washington, DC (Matthew McConkey, Atty., Office of Chief Counsel, U.S. Customs Service, of counsel), for defendants.

Titchell, Maltzman, Mark, Bass, Ohleyer and Mishel, Richard D. Maltzman, San Francisco, CA, for amicus curiae, Norcal Crosetti Foods, Inc.

OPINION

RESTANI, Judge:

This matter is before the court on a motion to dismiss, or in the alternative, for summary judgment, brought by defendants, the United States, Lloyd Bentsen, Secretary of the Treasury ("the Secretary"), John P. Simpson, Deputy Assistant Secretary of the Treasury, and George H. Weise, Commissioner of Customs. In support of their motion, defendants argue that this court lacks jurisdiction to hear plaintiffs' challenge to Treasury Decision 94-5 ("T.D. 94-5"), 58 Fed.Reg. 68,743 (Dep't Treas.1993), which requires that the country of origin marking on packages containing imported frozen produce must appear on the front panel in accordance with certain type and size specifications. Defendants further assert for purposes of summary judgment that Customs was not arbitrary and capricious in its promulgation of this decision. In response, plaintiffs in essence request a judgment from this court finding T.D. 94-5 null and void in accordance with the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 553 and 706(2) (1988), and § 304(a)(1) of the Tariff Act of 1930.¹

I. Background

Plaintiffs American Frozen Food Institute, Inc. and National Food Processors Association are trade associations, a majority of whose members are engaged in the manufacture, packaging and marketing of frozen food products, including frozen produce. Plaintiff Green Giant Foods ("Green Giant") is a U.S. manufacturer and marketer of products containing frozen produce, and is an importer of frozen produce for use in frozen food products. Plaintiff J.R. Simplot Company also imports frozen produce.

On May 9, 1988, certain U.S.-based frozen food packaging companies, including Norcal Crosetti Foods, Inc. ("Norcal"), filed requests and exemplars of packaging with Customs for a determination regarding whether specific frozen produce packages were properly marked to show country of origin, as required by 19 U.S.C. § 1304(a) (1988).² The domestic frozen food packagers sought a ruling that the country of origin could only be marked on the front panel of the product packaging to satisfy the meaning of the term "conspicuous" as used in § 1304, and implemented in the Customs Regulations, 19 C.F.R. part 134.³ Customs considered the requests to be "domestic interested party petitions" pursuant to 19 U.S.C. § 1516 (1988), and determined that the country of origin markings on the back panels of the samples submitted were "conspicuous", thus front panel marking was not required. See Customs Headquarters Ruling ("HRL") 731830 (Nov. 21, 1988).⁴

Norcal and other parties subsequently brought an action alleging Customs had misinterpreted the "conspicuous" requirement in § 1304. See Norcal/Crosetti Foods, Inc. v. United States Customs Service, 15 CIT 60, 758 F.Supp. 729 (1991) ("Norcal I"), vacated, 790 F.Supp. 302 (Ct. Int'l Trade 1992). The Norcal I plaintiffs prevailed on the merits of their summary judgment motion, as the court found that the country of origin must be marked on the front or most prominent panel of the package to be "conspicuous." Id. at 74, 758 F.Supp. at 741. On May 28, 1991, at the direction of the Norcal I court, Customs revoked HRL 731830 and ruled that frozen produce was not marked in a conspicuous place unless the marking appeared on the front panel of the package. T.D. 91-48, 56 Fed.Reg. 24,115, 24,115 (Dep't Treas.1991). Customs adopted the findings and determinations made by the Norcal I court, "subject to such modifications as may be directed by the appellate court, concerning the proper location of and the type size and style to be employed in marking the country of origin." Id. Customs also solicited comments on the implementation date for front panel marking.⁵ Id. at 24,115-16.

On appeal, the Federal Circuit determined that the Norcal I court lacked jurisdiction to decide the matter, as plaintiffs there had failed to exhaust the administrative remedies available under 19 U.S.C. § 1516 (1988). See Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d 356, 359-60 (Fed.Cir.1992) ("Norcal II"). The Federal Circuit remanded with instructions to dismiss the case and vacate Norcal I. Id. at 360.

On January 13, 1993, Norcal and Patterson Frozen Foods, Inc. filed a petition pursuant to 19 U.S.C. § 1516 ("the 516 petition"), requesting that Customs reconsider and reject the findings in HRL 731830 and begin enforcement of the requirements set out in T.D. 91-48. Enclosed with a supplemental submission to the petition were specific exemplars of labelling for which Norcal requested review. Decl. of Richard Maltzman Supp. Br. of Amicus Curiae Norcal, Ex. D. Customs published notice of the 516 petition and solicited comments on September 9, 1993. 58 Fed.Reg. 47,413 (Dep't Treas.1993).⁶

Customs determined on December 29, 1993 that back panel marking was insufficient and front panel marking of country of origin was required, in a size and style to match the net weight or quantity marking of the product. T.D. 94-5, 58 Fed.Reg. at 68,746. Customs indicated the effective date for this decision would be May 8, 1994, to allow importers time to modify their packaging. Id. Customs further noted that "conspicuous marking within the meaning of T.D. 91-48 shall be limited to marking which complies" with the additional specifications for type size and style set forth.⁷ Id. at 68,747.

Plaintiffs filed the instant action challenging T.D. 94-5 on February 14, 1994. Plaintiffs moved for a preliminary injunction on February 24, 1994. On March 29, 1994, Customs indicated that the compliance date for the front panel marking requirement in T.D. 94-5 would be suspended until January 1, 1995. 59 Fed.Reg. 14,548 (Dep't Treas.1994). Customs also suspended the compliance date for meeting the type size and style requirements for front panel marking, and solicited comments both on a new effective date and the specifications for type size and style. 59 Fed.Reg. 14,579 (Dep't Treas.1994). Defendants moved to dismiss this action on March 24, 1994.

II. Discussion

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

The threshold issue presented is whether this court possesses jurisdiction to hear plaintiffs' challenge to T.D. 94-5. Defendants contend that plaintiffs improperly seek a review of the 516 petition by Norcal, for which judicial review is only available to the "domestic interested party" petitioner, not to importers. See 19 U.S.C. § 1516(c), (e) (1988).⁸ Defendants also maintain that plaintiffs are unable to satisfy the test for jurisdiction under 28 U.S.C. § 1581(h) (1988). Plaintiffs respond that T.D. 94-5 contains new marking requirements constituting rule-making subject to review under the APA. As such, plaintiffs assert jurisdiction under § 1581(h).⁹

Under certain circumstances, a plaintiff is not required to complete the traditional protest procedures as defined in 19 U.S.C. §§ 1514 and 1515 (1988) before bringing a civil action.¹⁰ One alternative available to an importer seeking pre-importation review is found in § 1581(h), which provides in part that

The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to review, prior to the importation of the goods involved, a ruling issued by the Secretary of the Treasury, ... relating to ... marking ..., but only if the party commencing the civil action demonstrates to the court that he would be irreparably harmed unless given an opportunity to obtain judicial review prior to such importation.

28 U.S.C. § 1581(h).

The court has interpreted this section to set out four requirements to establish jurisdiction: 1) review must be sought prior to importation; 2) review sought must be for a ruling; 3) the ruling must relate to certain subject matter; and 4) the importer must show that irreparable harm will result unless judicial review prior to importation is obtained. National Juice Prods. Ass'n v. United States, 10 CIT 48, 51, 628 F.Supp. 978, 982 (1986). Plaintiffs have the burden of establishing that jurisdiction exists. Id.

The parties do not dispute that judicial review sought is for goods prior to importation and that T.D. 94-5 pertains to a specific or certain subject matter, but disagree as to the remaining two factors to establish § 1581(h) jurisdiction.

1. The ruling requirement

Defendants initially argue that T.D. 94-5 is not a ruling as contemplated under § 1581(h), but rather a general interpretation regarding proper placement of country of origin markings, arising from the decision on the 516 petition.

A "ruling" has been defined in the legislative history of § 1581(h) as a "determination by the Secretary of the Treasury as to the manner in which it will treat a completed transaction." H.R.Rep. No. 1235, 96th Cong., 2d Sess. 46, reprinted in 1980 U.S.C.C.A.N. 3729, 3758. An "internal advice"...