Sunburst Farms, Inc. v. United States

9 Ct. Int'l Trade 512, 620 F. Supp. 735, 9 C.I.T. 512, 1985 Ct. Intl. Trade LEXIS 1526
CourtUnited States Court of International Trade
DecidedOctober 10, 1985
DocketCourt No. 82-12-01753
StatusPublished
Cited by1 cases

This text of 9 Ct. Int'l Trade 512 (Sunburst Farms, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of International Trade primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sunburst Farms, Inc. v. United States, 9 Ct. Int'l Trade 512, 620 F. Supp. 735, 9 C.I.T. 512, 1985 Ct. Intl. Trade LEXIS 1526 (cit 1985).

Opinion

Re, Chief Judge:

In this action, plaintiff Sunburst Farms, Inc., challenges the Customs Service’s imposition of duties on cut flowers, item 192.21, TSUS, imported from Colombia. The plaintiff contends that the imported merchandise was eligible for duty-free treatment under the Generalized System of Preferences (GSP), and that the President’s exclusion of cut flowers, item 192.21, imported from Colombia, from duty-free treatment under the GSP was ultra vires. Both parties have moved for summary judgment, and the defendant has also moved to dismiss on the grounds that plaintiff has failed to state a cause of action.

Since the President acted within his statutory authority in excluding the imported merchandise from the GSP, the defendant’s motion for summary judgment is granted, and the action is dismissed.

By Title V of the Trade Act of 1974, § § 501-04, 88 Stat. 2066, 19 U.S.C. §§2461-65 (1982 & West Supp. 1985), the President is authorized to establish a system of tariff preferences to aid the economic development of designated "beneficiary developing countries.” Pursuant to section 501 of the Act, the President is authorized to grant duty-free treatment for eligible articles from qualified countries. 19 U.S.C. § 2461. Under section 504(a), the President may withdraw, suspend, or limit duty-free treatment. 19 U.S.C. § 2464(a). However, under certain circumstances, the President must remove certain eligible articles from GSP treatment. See 19 U.S.C. § 2464(c). Specifically, by section 504(c)(1)(B) of the Trade Act, whenever the President determines that imports of an eligible article equal or exceed 50 percent of the total appraised value of annual imports of the article, he is required to terminate duty-free treatment for that article. 19 U.S.C. § 2464(c)(1)(B).

On March 27, 1980, pursuant to Title V of the Trade Act of 1974, the President issued Executive Order 12204. 45 Fed. Reg. 20740 (1980). The order, which became effective March 30, 1980, divided item 192.19, TSUS, into two items: item 192.18, TSUS, "cut flowers, roses,” and item 192.21, TSUS, "cut flowers, other.” Although cut flowers under item 192.21 were included on the list of articles eligible for GSP treatment, cut flowers, item 192.21, from Colombia were specifically excluded from eligibility. 45 Fed. Reg. 20740, 20763 (1980).

The plaintiff imported cut flowers from Colombia after the effective date of the order, and duties were imposed. The liquidated [514]*514duties were paid, and protests were timely filed. When the protests were denied, the plaintiff filed this action. This Court has jurisdiction pursuant to 28 U.S.C. § 1581(a) (1982).

Plaintiff argues that the President’s denial of duty-free treatment for cut flowers was predicated solely upon section 504(c)(1)(B), and "was ultra vires because the President did not properly exercise the authority delegated to him by Congress.” In essence, the plaintiff contends that, since "cut flowers, other,” item 192.21, TSUS, was a newly created tariff classification, no data had been collected as to the total appraised value of imports. Thus, plaintiff argues that it was impossible for the President to make a proper determination whether imports of "other” cut flowers from Colombia exceeded the 50 percent threshold of section 504(c)(1)(B).

The plaintiffs argument is unconvincing. As authority for Executive Order 12204, the President expressly recited, in addition to the Constitution and statutes of the United States, Title V of the Trade Act, and section 504(c)(1)(B). Title V, of course, encompasses section 504(a). Although Executive Order 12204 does not specifically mention section 504(a), the pertinent judicial authority unequivocally holds that the President’s express reliance on Title V is sufficient to invoke his authority under section 504(a). See Florsheim, Shoe Co. v. United States, 744 F.2d 787, 796 (Fed. Cir. 1984). In addition, it is clear that the President’s exclusion of cut flowers from Colombia, under item 192.21, TSUS, was well within his discretionary authority under section 504(a). Id.

The Court of Appeals for the Federal Circuit had occasion to consider the question presented in this case in Florsheim Shoe Co. v. United States, 744 F.2d 787 (Fed. Cir. 1984). In Florsheim Shoe, the President had excluded certain buffalo, goat and kid leather imports from India from GSP treatment pursuant to Executive Orders 11974, 12204 (the same order involved in this case), and 12302. Each order specifically invoked the President’s authority under Title V of the Trade Act and section 504(c). The plaintiff, who imported leather from India, challenged the Customs Service’s imposition of duties on the imported products covered by the orders. On the defendant’s motion, the Court of International Trade dismissed the complaint, and held that the President had acted within his statutory authority in restricting duty-free treatment. Florsheim Shoe Co. v. United States, 6 CIT 1, 570 F. Supp. 734, 747 (1983), aff’d, 744 F.2d 787 (Fed. Cir. 1984). The court also held that the court could review neither the factual foundation nor the motivations for the President’s action. Id. at 8, 570 F. Supp. at 743. On appeal, the court of appeals affirmed.

The court of appeals noted that section 504(a) is "an explicit grant to the President of plenary authority — just as the statutory text indicates — to withdraw, suspend, or limit’ GSP duty-free treatment after consideration of the factors listed in Sections 501 and 502(c) * * Florsheim, supra, 744 F.2d at 793. The Federal Circuit’s broad interpretation of section 504(a) is amply supported by the [515]*515legislative history which states that, upon considering "the factors taken into account in granting preferential treatment initially and in designating beneficiary countries,” the President has the authority to terminate duty-free treatment "at any time,” H.R. Rep. No. 571, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S. Code Cong. Ad. News 7186, 7355-56. Moreover, since section 504 "is intimately involved with foreign affairs,” the President’s exercise of lawfully delegated authority should be given a broad interpretation and not "hemmed in or cabined, cribbed, confined’ by anxious judicial blinders.” Florsheim, supra, 744 F.2d at 793 (quoting South Puerto Rico Sugar Co. Trading Corp. v. United States, 334 F.2d 622, 632 (Ct. Cl. 1964), cert. denied, 379 U.S. 964 (1965)); see United States v.

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9 Ct. Int'l Trade 512, 620 F. Supp. 735, 9 C.I.T. 512, 1985 Ct. Intl. Trade LEXIS 1526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sunburst-farms-inc-v-united-states-cit-1985.