* Circuit Judge of the Seventh Circuit, sitting by

designation.

1 United States Court of Appeals,

Fifth Circuit.

No. 94-30389.

UNITED STATES of America, Plaintiff-Appellant,

v.

FOOD, 2,998 CASES, etc., Defendant.

First Phoenix Group, Ltd., Claimant-Appellee.

Sept. 26, 1995.

Appeal from the United States District Court for the Eastern

District of Louisiana.

Before WOOD, Jr., * JOLLY and DeMOSS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal presents complex, difficult, and close questions.

It is, however, a case that is unlikely to arouse widespread

passion.

The case begins with an import alert for mushrooms canned in

China and falsely bearing the labels of certain Taiwanese

manufacturers. Based on the alert, the Food and Drug

Administration (the "FDA") detained two shipments of mushrooms

owned by appellee First Phoenix Group Limited, Inc. ("First

Phoenix"). The question that drives this appeal is what is to be

done with these mushrooms now that they have been detained by the

Customs Service at the port of entry; First Phoenix argues that it1 This inside term is somewhat misleading. When imported

goods have been refused admission into the United States,

"reexport" is a convenient term describing the opportunity given

to the importer to send these goods out of the United States.

2 is entitled to "reexport" 1 them, and the FDA argues that it has the

authority to destroy them. The FDA filed a complaint in the United

States District Court for the Eastern District of Lou isiana,

asserting authority to destroy the mushrooms under 21 U.S.C. § 334

of the Fe deral Food, Drug, and Cosmetic Act (the "FDCA"). First

Phoenix argued that when imported goods are detained at the port of

entry, the FDA could invoke only the administrative pro cedures

under 21 U.S.C. § 381 of the FDCA to refuse entry of the goods into

the United States and then allow First Phoenix ninety days to

"reexport" the mushrooms before the FDA could destroy them. The

district court agreed and dismissed the FDA's c omplaint. The

resol ution of whether the district court erred in dismissing the

complaint depends upon whether the mushrooms were ever "introduced

into interstate commerce" within the expansive definition contained

in the FDCA; and, second, upon whether, in the statutory scheme,

Congress intended that § 334 judicial proceedings could be invoked

only after the goods had been released from the Customs Service.

We conclude, given the broad statutory defini tion of

interstate commerce, that the mushrooms were in interstate commerce

and that neither the plain words of the statute nor congressional

intent behind the statute bars FDA's proceeding under § 334 in this

case.

I2 An import alert advises FDA field offices of ongoing

problems with a specific product offered for import and suggests

appropriate action, such as detention for inspection and

sampling.

3 In October 1989, the Food and Drug Administration (the "FDA")

issued an "import alert" 2 for all canned mushrooms processed in

China in response to a food-borne illness caused by staphylococcal

enterotoxin found in canned mushr ooms produced in nine China

factories. Appellee First Phoenix Group Limited, Inc. ("First

Phoenix"), an importer of food products, purchased several orders

of canned mushrooms supposedly packaged at Hwa Chen Ind ustrial

Corporation ("Hwa Chen") in Taiwan. In late spring 1992, First

Phoenix attempted to enter two shipments of mushrooms—3,000 cases

a nd 6,000 cases—into the United States. The 3,000-case shipment

was unloaded at Savannah, Georgia, transported under a United

States Customs Service transit bond to a bonded warehouse in Tampa,

Florida, and offered for entry on May 26, 1992. The United States

Customs Service (the "Customs Service") conditionally released

these mushrooms under bond pending review by the FDA. The

mushrooms then were shipped to a bonded warehouse in New Orleans,

Louisiana, the destination city for each shipment, and have

remained in this warehouse since this time. The 6,000-case

shipment was unloaded at Long Beach, California, in early July

1992, transported under a Customs Service transit bond to a bonded

warehouse in New Orleans, and offered for entry on behalf of First

Phoenix by Transoceanic Shipping.

On July 10, 1992, the FDA issued a second import alert3 Between July 29 and December 14, First Phoenix located a

purchaser in Russia for the mushrooms.

4 The FDA sampled the mushrooms from the 3,000-can shipment,

but found no adulteration of the mushrooms.

4 advising its field offices to detain shipments of canned mushrooms

from specified Taiwanese manufactures, including Hwa Chen. The FDA

issued this import alert because mushrooms labelled as packaged and

produced from these specified manufacturers actually were processed

and packaged in an unknown factory in China. Because of this

import alert, the FDA issued Notices of Detention and Hearing for

the 3,000-case shipment on July 29, and for the 6,000-case shipment

on December 14. 3 In these notices, the FDA indicated that it was

acting under its power in § 381(a) of the Federal Food, Drug, and

Cosmetic Act (the "FDCA"), 21 U.S.C. §§ 301 e t seq. Based on an

examination of cans from both shipments 4 and additional information

provided by Hwa Chen, the FDA determined that the mushrooms were

not processed or packaged in Taiwan. The FDA thus concluded that

an unknown factory in China used Hwa Chen's can codes in a

deliberate attempt to circumvent the broad import alert on canned

mushrooms originating in China. The FDA then advised First Phoenix

that it would likely refuse admission of the mushrooms and allow

reexport only under very strict conditions. The FDA, however,

issued no forma l notice of refusal of admission. The FDA then

c onducted additional testing of a separate lot of mushr ooms

ostensibly packaged at Hwa Chen and shipped into the United States

by First Phoenix, but not at issu e in this appeal. Based on

staphyloccal enterotoxin found in these mushrooms, the FDA informed5

First Phoenix of its decision to destroy the mushrooms, rather than

allow reexport. Thus, the FDA decided to proceed under the

authority provided in 21 U.S.C. § 334, instead of proceeding under

21 U.S.C. § 381.

Accordingly, on November 3, 1993, the government filed a

complaint in the United States Dist rict Court for the Eastern

District of Louisiana seeking seizure and condemnation of both

shipments of mushrooms as adulterated and misbranded goods in

interstate commerce under its authority in 21 U.S.C. § 334(a) of

the FDCA. Under the district court's warrant for the arrest of

both shipments, the United States Marshals Service seized and

attached the shipments at the New Orleans warehouse where they were

stored upon entry into New Orleans and continue to be held at the

present time. On April 19, 1994, the district court granted

summary judgment in favor of First Phoenix and dismis sed the

government's case. The district court held that the mushrooms had

never entered interstate commerce as required for an action under

§ 334(a) because they had continually remained under Customs

Service transit bonds. The district court thus determined that the

Customs Service remained in control o f the mushrooms since their

import into the United States. Finally, the court concluded that

§ 381(a) was the government's exclusive authority with respect to

the mushrooms and gave First Phoenix the opportunity to reexport

the two shipments before being destroyed by the FDA. Thereafter,

the district court denied the government's motion for

reconsideration and granted its motion for a stay of the judgment5 Because this is a case on appeal from the district court's

grant of summary judgment, we review the record de novo.

Calpetco 1981 v. Marshall Exploration, Inc., 989 F.2d 1408, 1412

(5th Cir.1993).

The government argues that the FDA's interpretation of

the statutes at issue in this case should be given

"controlling weight." See Chevron, U.S.A., Inc. v. Natural

Resources Defense Counsel, Inc., 467 U.S. 837, 843, 104

S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984) (holding permissible

interpretation of agency charged with administering statute

at issue must be given controlling weight when Congress had

not addressed question at issue). Because it appears that

the FDA interpreted § 334 and § 381 at such a time and in

such a manner so as to provide a convenient litigating

position for this suit, we disagree and conclude that the

FDA's position is not controlling. See Irving Indep. Sch.

6 pending appeal.

On appeal, the government argues that because the mushroom

shipments fall within the statutory defi n ition of "interstate

commerce," it had the authority t o bring a § 334 seizure and

condemnation action in the district court. The government further

contends that its authority to act under this statute is unaffected

by the fact that the administrative remedy in § 381 i s also

available to it in this case. The government thus concludes that

the district court erred in granting summary judgment in favor of

First Phoenix on the basis that § 381 restricted the government's

authority under § 334 to situations when the goods at issue were in

"interstate commerce."

II

In this appeal, we must consider whether the district court

erred in granting summary judgment in favor of First Phoenix and

dismissing the government's complaint on the grounds that the facts

here failed to demonstrate a claim under § 334. 5 To resolve thisDist. v. Packard Properties, 970 F.2d 58, 64 (5th Cir.1992)

(discounting strategically timed and conveniently favorable

agency interpretation given after agency's involvement in

litigation over the disputed provision).

7 question, first, we must determine whether imported goods , which

never are released from Customs Service upon arrival in the United

States satisfy the interstate commerce requirement, as defined in

the FDCA. Second, we must determine whether a § 334 judicial

proceeding may be brought with respect to goods seized at the port

of entry and never released by the Customs Se rvice or whether in

these circumstances, the FDA is limited to the administrative

procedures under § 381. We hold that the interstate commerce

requirement has been satisfied in this case and that goods seized

at the port of entry may be the proper subject of an action under

§ 334. We therefore reverse the judgment of the district court and

remand for further proceedings not inconsistent with this opinion.

III

A

We first examine whether the mushrooms in this case were

introduced into "inte rstate commerce," as required to initiate a

seizure and condemnation action under § 334. In relevant part, 21

U.S.C § 334(a)(1) provides:

Any article of food, drug, or cosmetic that is adulterated or

misbranded when introduced into or while in interstate

commerce or while held for sale

. .. after shipment in

interstate commerce

... shall be liabl e to be proceeded

against while in interstate commerce, or at any time

thereafter, on liable of information and condemned in any

district court of the United Stat es ... within the

jurisdiction in which the article is found.

21 U.S.C. § 334(a)(1) (1972 & Supp.1995). Thus, to initiate an6 We have found very few cases interpreting this provision

and none within our circuit. In Roseman v. United States, 364

F.2d 18 (9th Cir.1966), cert. denied, 386 U.S. 918, 87 S.Ct. 879,

17 L.Ed.2d 789 (1967), the Ninth Circuit broadly interpreted

interstate commerce under § 321(b) to include transportation from

Canada into the United States and from Washington to California.

Roseman, 364 F.2d at 24 (citing 230 Boxes, More or Less, of Fish

v. United States, 168 F.2d 361 (6th Cir.1948)). The court noted

that § 321(b) included "importation" within its definition as a

means to avoid the possibility that someone could transport

"merchandise into the United States or from one border state to

another via a foreign country without conforming to the

substantive provision of the FDCA and without violating" the

FDCA. Roseman, 364 F.2d at 26.

7 When these goods left Taiwan, they were destined for New

Orleans and were unloaded in Georgia and California because

overland transportation was more convenient and inexpensive than

direct shipment to New Orleans, Louisiana.

8 action for seizure and condemnation, the FDA must prove only that

the g oods have been introduced into interstate commerce,

notwithstanding the fact that the goods may be removed at some

later time from interstate commerce. The FDCA expansively defines

interstate commerce as "commerce between any State or Territory and

any place outside thereof." 6 21 U.S.C. § 321(b) (1972). Here,

each shipment was shipped from a pla ce outside the United

States—Taiwan—and entered the United States at Savannah, Georgia,

and Long Beach, Californi a, respectively, where they arrived and

were unloaded. 7 There is some suggestion, however, that these

mushrooms may have been effectively detained at sea by the import

alert and thus were removed from the stream of commerce before they

actually entered the United States. If, however, goods are

destined for sale in a state other than the place from which they

are shipped, then goods are in "interstate commer ce" without the

necessity of physically crossing a state boundary. M erchants Fast8 A Customs Service bond includes any bond required under

Customs laws or regulations in order to perform a particular

Customs activity. 19 C.F.R. § 113.61 (1994). Under 19 U.S.C. §

1553, "[a]ny merchandise, other than ... merchandise the

importation of which is prohibited, ... may be entered for

transportation in bond through the United States by a bonded

carrier without appraisement or the payment of duties." 19

U.S.C. § 1553 (1980 & Supp.1995). Here, both shipments were

transported under bond and to New Orleans based on § 1553. These

bonds were obtained to secure duties, taxes, and other charges

due on the shipments of the imported mushrooms. See 19 C.F.R. §

113.62 illust. a (requiring bond securing duties, taxes, and

charges imposed or estimated to be due if merchandise is released

from Customs custody).

9 Mot or Lines, Inc. v. Interstate Commerce Comm'n, 528 F.2d 1042,

1044 (5th Cir.1976); s ee Tex as v. United States, 866 F.2d 1546,

1556 (5th Cir.1989) (stating intent at time of shipment is crucial

to determination of essential character of shipment as interstate

or intrastate). Thus, we conclude that the mushrooms in this case

undoubtedly constituted an interstate shipment from the moment they

left Taiwan.

The question remaining is whether these goods, which were

never released for sale in the United States from the Customs

Service, were also in "commerce," as required by § 321(b). First

Phoenix argue s that these mushrooms could not possibly be in

commerce because from the moment the goods were placed on alert,

even b efore they arrived in the United States, and at all times

thereafter, sale of these goods in the United States was prohibited

by the FDA. First Phoenix additionally argues that because the

mushrooms were held under Customs Service bonds 8 since arriving in

the United States, they were never introduced into interstate

co mmerce as required in § 334 for a condemnation action. First10

Phoenix attempts to place an impossibly narrow constructi on on a

very broad statute. Regardless of the government's impediments to

the sale of these goods once they reached the United States, these

goods nevertheless had been shipped to the United States for the

express purpose of sale when they left Taiwan. Although restricted

from immediate sale by the import alert and other FDA action, and

although they may now have been removed from commerce by the import

alerts, the goods were "introduced" into interstate c ommerce—for

the purpose of satisfying the statutory requirements here—when they

left Taiwan because they had been then injected into the mercantile

stream and were on their way to a market in the United States where

potential purchasers awaited. In sum, we hold that these mushrooms

had been introduced into interstate commerce at the time they were

detained by the Customs Servi ce, given the expansive and

unrestricted definition of § 321(b).

Having determined that the mushrooms had been introduced into

interstate commerce, it is plain on the face of the statute that §

334 is a judicial remedy available to the FDA in this case. We now

must address, however, First Phoenix's argument that C o ngress

intended § 334 to apply only to seizu res of goods that have been

released from the Customs Service. In short, First Phoenix argues

that only the administrative procedures under § 381 may be invoked

by the FDA when the goods are seized at the port of entry and not

yet admitted into the United States. We now turn to consider this

question of whether § 334 and § 381 create two mutually exclusive

statutory remedies for goods under the FDCA.9 The FDA has not issued a formal notice of refusal of

admission of these mushrooms.

10 We point out that § 381 undoubtedly only applies to goods

detained at the port of entry and any seizure of imported goods

after release by the Customs Service must submit to judicial

11 B

(1)

As earlier discussed, § 334(a) is a judicial remedy available

to the FDA allowing it to seize and condemn any goods that have

been introduced into or are already in interstate commerce or after

shipment is in interstate commerce, but if the FDA chooses to

proceed under this statute it must p rove in a court of law by a

preponderance of the evidence that the goods are indeed adulterated

o r misbranded. Section 381, on the other hand, is purely an

administrative procedure, which allows a quick and efficient means

of protecting the Ame rican public from unhealthy or mislabeled

imported goods. In relevant part, 21 U.S.C. § 381(a) provides:

The Secretary of the Treasury shall deliver to the Secretary

of Health

... samples of food, drugs, and cosmetics which are being imported or offered for import into the United States

... [and] if it appears from the examination of such samples

... that

... such article is adulterated, [or] misbranded such

article sh all be refused admission, except as provided in

subsection (b) of this section. The Secretary of the Treasury

shall cause the destruction of any article refused admission

unless such article is exported, under regulations prescribed

by the Secretary of the Treasury, within ninety days of the

date of notice of such refusal or within such additional time

as may be permitted pursuant to such regulations.

21 U.S.C. § 381(a) (1972 & Supp.1995) (emphasis added). 9

Clearly no provision of § 381 expressly restricts the

authority of the FDA from proceeding judicially under § 334 when it

seizes and holds goods at the port of entry in the United States. 10proceedings under § 334. The question here is whether these

statutes provide overlapping remedies for goods seized at the

port of entry so that the government, at that point, may chose to

proceed under either § 334 or § 381.

11 First Phoenix argues that the express language of § 381

mandates that adulterated goods being imported or offered for

import, as here, shall be refused admission. Once admission is

refused, First Phoenix argues, § 381 grants the importer an

unqualified right to reexport the goods within ninety days of

this refusal. First Phoenix contends, and the district court

agreed, that allowing the FDA the option of proceeding under §

334 or § 381 when the imported goods meet the prerequisites of

both would emasculate its unqualified right granted by § 381 to

reexport goods within ninety days of refusal of admission.

We acknowledge that this plain language projects a

forceful argument that importers have an unequivocal right

to a notice of refusal of admission. And it is true that if

the FDA proceeds under § 334, as they have in this case, the

importer does not receive a notice of refusal of admission

and the concomitant right to reexport. Nevertheless, we are

convinced that the more compelling view of the statutory

scheme, for reasons we express in this opinion, is that the

FDA has an option to proceed under either statute with

respect to goods detained at the port of entry, and if the

government chooses to proceed under § 334, the right to a

notice of refusal and opportunity to reexport provided in §

381 simply is inoperative.

12 If goods are, in point of time, both "in interstate commerce" and

"being imported or offered for import into the United States," as

the mushrooms here, the plain words of the statutes permit the

government the option of proceeding under either § 334 or § 381. 11

We now examin e First Phoenix's arguments, based primarily on

legislative history and statutory construction, that these statutes

do create mutually exclusive systems for dealing with i mported

adulterated or misbranded goods, i.e., § 381 applies exclusively to

goods at the port of entry and § 334 applies exclusively to goods

that have been released from the Customs Service.

(2)12 The Supreme Court noted:

By the Act of 1938, Congress extended the range of its

control over illicit and noxious articles and stiffened

the penalties for disobedience. The purposes of this

legislation thus touch phases of the lives and health

of people which, in the circumstances of modern

industrialism, are largely beyond self-protection.

Regard for these purposes should infuse construction of

the legislation if it is to be treated as a working

instrument of government and not merely as a collection

of English words.

United States v. Dotterweich, 320 U.S. 277, 280, 64 S.Ct.

134, 136, 88 L.Ed. 48 (1943) (internal citations omitted).

13 With the exception of the two amendments discussed later

in this opinion, the 1938 versions of § 334 and § 381 are

substantially similar to those presently in effect and quoted in

relevant part earlier in this opinion.

14 The seizure and condemnation provision contained in § 10

of the 1906 Act provided in relevant part:

any article of food ... that is adulterated or

misbranded within the meaning of this act, and is being

transported from one State, Territory, District, or

insular possession to another for sale, or, having been

transported, remains unloaded, unsold, or in original

unbroken packages, or if it be sold or offered for sale

in the District of Columbia or the Territories, or

insular possessions of the United States, or if it be

imported from a foreign country for sale, or if it is

intended for export to a foreign country, shall be

liable to be proceeded against, ... and seized for

confiscation by a process of libel for condemnation.

13 When Congress enacted the FDCA in 1938, it intended to

strengthen the provisions of its predecessor act—the Federal Food

and Drugs Act of 1906 (the "1906 Act"). 12 H.R.R E P

. No. 2139, 75th

Cong., 3d Sess. (1938), reprinted in F EDERAL F OOD

, D RUG

, AND C OSMETIC

A CT : A S TATEMENT OF I TS L EGISLATIVE R ECORD 816 (Charles Wesley Dunn ed.,

1987) (hereinafter L EGISLATIVE R ECORD ). Without substantial change,

Congress modeled § 334 and § 381 of the FDCA 1 3 after § 10 14 and §Food and Drugs Act of 1906, § 10, reprinted in L EGISLATIVE

R ECORD at 832 (emphasis added). This entire enumeration of

instances when goods could be seized and condemned was

replaced in § 334 with "when introduced into or while in

interstate commerce or while held for sale ... after

shipment in interstate commerce." The underscoring above,

however, demonstrates that § 10, according to its express

terms, would have been clearly applicable to the mushrooms

in this case.

15 The import-export provision contained in § 11 of the 1906

Act provided in relevant part:

The Secretary of the Treasury shall deliver to the

Secretary of Agriculture ... samples of foods and drugs

which are being imported into the United States or

offered for import ... and if it appear from the

examination of such samples that any article of food or

drug offered to be imported into the United States is

adulterated or misbranded within the meaning of this

act ... the said article shall be refused admission,

and the Secretary of the Treasury shall ... cause the

destruction of any goods refused delivery which shall

not be exported by the consignee within three months

from the date of notice of such refusal.

Food and Drugs Act of 1906, § 11, reprinted in L EGISLATIVE

R ECORD at 832-33. This provision remained substantially

unchanged when enacted as § 381, with the exception that the

three months given for reexport was technically changed to

ninety days in § 381.

14 11, 15 respectively, of the 1906 A ct. See H.R.R EP

. N O

. 2130,

reprinted in L EGISLATIVE H ISTORY at 818, 827 (stating that FDCA

retained without substantial change seizure and condemnation

provision of § 10 and import-export provision of § 11 of 1906 Act).

Specifically, the FDA's power to refuse admission under § 381 to

goods appearing a dulterated and "being imported or offered for

import into the U nited States" remained virtually identical to §

11. With regard to the seizure and condemnation provision,

Congress compacted the extensive language of § 10, describing the

legal character of goods subject to condemnation, simply to those16 First Phoenix recognizes that Congress intended no

substantial change from the 1906 Act with respect to the

administrative and judicial proceedings of the FDCA. First

Phoenix contends, however, that the provisions were always

intended to be mutually exclusive remedies for the FDA when

dealing with adulterated or misbranded goods. First Phoenix

argues that § 11 of the 1906 Act provided the government's

exclusive authority with respect to goods detained at the port of

entry and allowed the government only to refuse entry of these

goods into the United States. First Phoenix contends that this

limited power of exclusion for goods detained at the port of

entry continued in § 381 of the FDCA. First Phoenix thus

concludes that the FDA has never had the power to proceed

judicially to destroy the goods that are never released from the

Customs Service.

15 goo ds "introduced into or while in interstate commerce or while

held for sale ... after shipment in interstate commerce." 16

First P hoenix primarily relies on the two substantial post1938 amendments to § 334 and § 381 as support for its position that

Congress intended § 334 and § 381 to operate mutually exclusively.

Prior to 1949, § 381—unlike § 334—did not allow importers the right

to bring adulterated or misbranded goods into compliance with FDA

standards. In 1949, however, Congress amended § 381 to give

importers this opportunity to cure—an opportunity already

recognized, as put by the congressional reports, "with respect to

articles seized in domestic commerce and condemned by court decree"

under § 334. S.R E P

. N O . 890, 81st Cong., 1st Sess. (1949),

reprinted in 1949 U.S.C.C.A.N. 2147, 2147 (emphasis added). This

underscored language suggests that Congress understood that § 334

applied to goods in domestic commerce, with the implication that §

381 was the applicable statute for proceeding against goods at the

port of entry. Moreover, First Phoenix argues with some force that

if imported goods detained at the port of entry have already been16

"introduced into interstate commerce" within the meaning of § 334,

then Congress would have had no reason to amend § 381 to give the

FDA the option of allowing the importer to bring his goods into

compliance because this option was already available in § 334 for

goods in interstate commerce. Therefore, First Phoenix contends

that Congress, recognizing that goods detained by the Customs

Service at the po rt of entry are not subject to § 334, amended §

381 to provide importers the opportunity to cure goods not yet

admitted into the United States.

Next, in 1957, Congress amended § 334 to provide importers an

opportunity, as similarly provided in § 381, to reexport goods in

certain instances when, in the words of the congressional report,

the imported goods "have been seized by the Food and Drug

Administration and condemned at places with in the United States

other than at the original port of entry." S.R E P

. N O . 993, 85th

Cong., 1st Sess. (1957), reprinted in U.S.C.C.A.N. 1791, 1791

(1957). The report explained that "[a]t the present time the

Federal Food, Drug, and Cosmetic Act permits the reexportation of

articles if the y were seized at the original port of entry ...

[but] does not permit reexportation of imported articles

... after

such articles have entered domestic commerce." S.R E P

. N O

. 993, 85th

Cong., 1st Sess. (1957), reprinted in U.S.C.C.A.N. 1791, 1791

(1957). Indeed, the Secretary of Health, Education, and Welfare

seemed to take note that § 334 applied when adulterated goods were

seized in domestic situations: his report provided that the

amended § 334 would allow food "imported from foreign countries and17

ent ered through customs into the United States, if subsequently

seized under domestic provisions of the law as violative of the

Food, Drug, and Cosmetic Act may under certain condit ions be

reexported." S.R E P

. N O

. 993 (quo ting Report by M.B. Folsom,

Secretary of the Department of Health, Education, and Welfare

(August 13, 1957)). Those conditions, now part of the statute as

a result of the 1957 amendment, are, first, the FDCA violation must

not have occurred after the article was imported and, second, the

importer must have had "no cause for believing that it was

adulterated, misbrand ed, or in violation b efore it was released

from customs custody. " 21 U.S.C. § 334(d) (emphasis added). First

Phoenix contends that because the right to reexport under § 334 is

expres sly limited to goods that have left the port of entry, no

right to reexport goods condemned under § 334 exists with respect

to goods detained at the port of entry. The right to reexport

goods detained at the port of entry does exist, however, under §

381. This distinction between the two statutes clearly indicates,

according to First Phoenix, that the rights of importers whose

goods are detained at the port of entry are embodied only in § 381

and the rights of importers whose goods are detained after they are

released from the port of entry are found in § 334. Thus, First

Phoenix cites this 1957 amendment to § 334 as evidence that

Congress intended separate, independent and mutually exclusive

procedural mechanisms for goods detained at the port of entry, on

the one h and, and goods admitted into the United States, on the

other hand.18

In short, First Phoenix concedes that Congress intend ed to

strengthen the United States' food and drug laws when it enacted

the FDCA, but argues that nothing in the legislative history or

statutory scheme indicates that Congress intended t o extend the

FDA's power under § 334 to goods offered for import. Instead,

First Phoenix argues that Congress understood these two statutes

applied at two distinct points in time—before release from the

Customs Se rvice and after release—and amended these statutes in

order t o provide parallel rights under § 381 and § 334. First

Phoenix accordingly contends that the legislative history and the

statutory scheme supports its view that Congress intended the

remedies provided under § 334 and § 381 to operate in mutua lly

exclusive circumstances—an administrative proceeding under § 381 to

refuse adulterated or misbranded goods detained at the port of

entry and a judicial proceeding under § 334 to se ize and condemn

goods after admitted into the United States.

(3)

We can appreciate the arguments of First Phoenix as pointing

to how the statues logically and practically operate. It certainly

appears true that Congress assumed that § 381 and § 334 ordinarily

apply in separate factual circumstances. Furthermore, we recognize

the more recent amendments of 1949 and 1957 were intended to

provide certain parallel rights in each situation.

The legislative hi story, however, also makes clear that

Congress intended to empower the FDA with the broadest possible

authority over imported contaminated goods. The plain words of the19

statute expansively define "interstate commerce" to effectively

include foreign commerce. Moreover, no statutory language

prohibits the application of § 334 to goods seized at the port of

entry. Although the legislative history demonstrates that Congress

was under the impression that § 334 and § 381 ordinarily operate

exclusive of each other, we cannot say, in the face of Congress's

broad definition of interstate commerce, that Congress intended to

preclude the FDA from ever pursuing the judicial remedy provided in

§ 334 in cases deemed appropriate by the FDA. There will, from

time to time, be plausible and practical bases for allowing the

government the option of proceeding under § 334 or § 381 when goods

are detained at the port of entry. As we have observed, the

procedures and burdens established by these two statutes are quite

different. When the government lacks the ability to prove a

violation of the FDCA by a preponderance of the evidence, or when

the risks to human health are not major or critical, the government

can pursue th e administrative procedures of § 381 and simply

require reexportation of the goods. Consequently, the risk of

p roperty loss to the owner of the goods is minimized, threats to

health and other interests of consumers are avoided, and no

significant legal process is required. On the other hand, when the

circumstances pose a critical risk to the health of United States

citizens, the FDA has the option of init iating a judicial

condemnation proceeding under § 334. In this situation, the FDA

can destroy the goods without giving the importer the opportunity

to reexport, but only after proving by a preponderance of the20

evidence that the goods are adulterated or misbranded.

Accordingly, this more cumbersome rem edy has the effect of

protecting the property rights of the owner of the goods who do not

have the opportunity to reexport. At the same time, § 334 allows

the government a sure mechanism, i.e., destruction, to prevent the

possibility of undetected reimportation of dangerous goods into the

United States. We find this optional system rational and find no

sufficient reason to disregard the plain language of § 334, which

would be necessary if we accepted the arguments of First Phoenix.

In sum, we find no in dication that Congress intended to tie the

hands of the FDA to deny it flexibility.

We therefore hold that the plain language of § 334 permits the

FDA to initiate a seizure and condemnation action, such as the one

before us, when goods are seized at the port of entry. The

district court is REVERSED and the case REMANDED for further

proceedings not inconsistent with this opinion.

REVERSED and REMANDED.