CIT Denies Hearing for Challenge to CBP Ruling on NAFTA Eligibility for Brussels Sprouts
The Court of International Trade on Dec. 2 dismissed a lawsuit related to the NAFTA-eligibility of frozen Brussels sprouts imported by General Mills from Mexico (here). General Mills wanted to challenge the ruling before having to incur the administrative costs associated with actually importing the frozen vegetables. But CIT said it would have to import them and protest the NAFTA treatment before getting a hearing from the court.
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General Mills challenged a CBP ruling letter that found its frozen Brussels sprouts, grown in Belgium and imported into Mexico where they were combined with frozen butter chips before being shipped to the U.S., were not NAFTA originating and consequently not eligible for duty free treatment (see 14020414). The agency cited to General Note 12(s)(ii), which says vegetable preparations under chapter 20 “preserved merely by freezing, by packing (including canning) in water, brine or natural juices, or by roasting” can only be treated as originating if the fresh good was wholly originating in a NAFTA country. According to CBP, the Brussels sprouts remained Belgian because butter is akin to a “natural juice.”
Without an entry or a denied protest to challenge, General Mills filed suit under 28 USC 1581(i), which provides for “other” types of trade cases not specifically listed under the types of cases CIT is allowed to hear. Section 1581(i) is only available if filing under CIT’s other jurisdiction provisions, including denied protests, is “manifestly inadequate.” General Mills argued they were inadequate, because in order to be able to file under Section 1581(a) denied protest jurisdiction it would have to spend the money to import the Brussels sprouts and file a protest. CIT disagreed, holding that “it is well settled” that financial harm alone does not mean a remedy is inadequate. It also denied General Mills’ request to transfer the case to the District of Columbia U.S. District Court, because the company could get a hearing from CIT if it would enter the merchandise and come back with a denied protest.
(General Mills v. U.S., Slip Op. 14-140, CIT #14-00096, dated 12/02/14, Judge Tsoucalas)
(Attorneys: John Peterson for plaintiff General Mills, Inc.; David Silverbrand for defendant U.S. government)