Citations
- 914 F. Supp. 548
Full opinion text
OPINION
TSOUCALAS, Judge:
Plaintiff, Foodcomm International (“Food-comm”), moves pursuant to Rule 56 of the Rules of this Court for summary judgment on the ground that there is no genuine issue as to any material facts. Defendant cross-moves for summary judgment seeking an order dismissing this case.
Plaintiff challenges the denial of Protest No. 280995-100425 by the United States Customs Service (“Customs”). The issue presently before the Court is whether Customs properly classified the merchandise, fresh or chilled boneless veal from The Netherlands, as beef without bone pursuant to subheading 9903.23.00 of the Harmonized Tariff Schedule of the United States (“HTSUS”). The entry numbers at issue are 304-0072456-0, 304-0072512-0, 304-0072711-8, 304-0072635-9, 304-0072753-0, 304-0072818-1, 304-0072892-6, 304-0072980-9, 304-0073113-6, 304-0073186-2, 304-0073265-4, 304-0073365-2, 304-0073440-3, 304-0073559-0, 304-0073649-9, 304-0073607-7, 304-0073933-7, 304-0073715-8, 304-0073779-4, 304-0076710-6 and 304-0072290-3.
The Court has jurisdiction pursuant to 28 U.S.C. § 1581(a) (1988).
Background,
Plaintiff imports meats and meat by-products through the ports of Boston and San Francisco. In December 1985, the European Community, which is now known as the European Union (“EU”), adopted the “Council Directive Prohibiting the Use in Livestock Farming of Certain Substances Having a Hormonal Action” (“Hormone Directive”). The Hormone Directive, which became effective on January 1, 1988, prohibited imports into EU member countries of any meat produced from animals treated with growth hormones. See Unfair Trade Practices; European Community Hormones Directive, 52 Fed.Reg. 45,304 (1987).
On December 24, 1987, pursuant to section 301(a) of the Trade Act of 1974, as amended, 19 U.S.C. § 2411 (1987), the President of the United States issued a Presidential Proclamation in response to the Hormone Directive. Proclamation 5759 of December 2b, 1987 (“Proclamation”), 52 Fed.Reg. 49,131 (1987). In retaliation for the Hormone Directive, the Proclamation increased the rate of duties on certain products of the EU. As a result of the Proclamation, “[b]eef, without bone (except offal), fresh, chilled, or frozen (provided for in subheadings 0201.30.60 and 0202.30.60 [of HTSUS])” from the EU became subject to duties of 100% ad valorem as prescribed in subheading 9903.23.00 of the HTSUS. Proclamation, 52 Fed.Reg. at 49,-133.
In February, 1994, the United States Department of Agriculture (“USDA”) recognized The Netherlands as being free of foot and mouth disease. As a result, from June, 1994 to November, 1994, plaintiff imported boneless veal from The Netherlands through the ports of San Francisco and Boston. Memorandum of Points and Authorities by Foodcomm International in Support of Plaintiffs Motion for Summary Judgment (“Plaintiffs Brief”) at 6. Plaintiff paid the general tariff duty rate of 4.4