Noss Co. v. United States
| Decision Date | 26 March 1984 |
| Docket Number | Court No. 81-9-01291. |
| Parties | NOSS COMPANY, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Sandler & Travis, Miami, Fla. (Mark D. Crames, Miami, Fla., at the trial and on the memoranda), for plaintiff.
Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, New York City (Kenneth N. Wolf, New York City, at the trial and on the memoranda), for defendant.
The plaintiff in this action contests the classification by the United States Customs Service (Customs) of a certain device, invoiced as a centrifugal cleaner and known as a Radiclone, which is used for treating pulp in the papermaking process. Both plaintiff's position and defendant's position in this case are supported and with merit. The defendant, however, prevails since its claimed classification under item 661.95 is sustainable and is given precedence by virtue of headnote 1 of Schedule 6, part 4, subpart A, TSUS.1
The subject merchandise was entered at the port of Charleston, South Carolina, on January 8, 1981, and was liquidated on February 11, 1981. Plaintiff filed a timely protest with Customs which was denied on June 16, 1981. Jurisdiction in this court exists pursuant to 28 U.S.C. § 1581(a) (Supp. V 1981).
Customs originally classified the Radiclone under Item 668.04 of the Tariff Schedules of the United States (TSUS), which provides:
Parts of the foregoing machines:
Bed plates, roll bars, and
other stock-treating parts
for pulp or paper machines
........................... 6.4% ad val
In its amended answer, however, the defendant admitted that the above-quoted classification was erroneous. That classification, therefore, was abandoned. In the alternative, defendant here seeks to demonstrate that the imported merchandise properly is classifiable under item 661.95, TSUS, and dutiable at the rate of 5.1 percent ad valorem. Item 661.95 reads in part:
The plaintiff maintains that the Radiclone should be classified under Item 668.00, TSUS, which states in part:
Plaintiff also alternatively claims that if the Radiclone is an unfinished machine, it is classifiable under item 668.00 pursuant to Rule 10(h) of the General Headnotes and Rules of Interpretation, TSUS. The parties also have agreed that if the Radiclone is provided for in both items 661.95 and 668.00, then pursuant to schedule 6, part 4, subpart A, headnote 1, TSUS, the Radiclone is classifiable under item 661.95.2
The Radiclone is a device that aids in removing contaminants from pulp and paper stock, a function vital to the process of transforming timber into paper. Typically, logs entering a paper mill are first debarked and placed into a "chipper" which cuts and chops the wood into smaller pieces. At this point, at least in the chemical pulping process, these wood chips are introduced into a device known as a "digester" which, operating at high temperatures and pressures, combines the wood chips with certain chemicals. This process has the effect of removing some of the "lignin" from the wood fibers; the lignin is the "glue" that gives the fibers their adhesive quality. The net result of the digesting process is that the wood becomes a pumpable "slurry" suitable for further processing. At this point, the slurry contains many contaminants ranging from sand and rocks to bottle caps and plastic cups. Various screens are used to remove these larger and more coarse impurities.
After the screening processes, only the smaller and lighter of the original contaminants remain. It is at this point that the Radiclone is employed. Most of the larger and heavier of the remaining contaminants are removed by use of the Radiclone. The pulp slurry, now rid of most of its original impurities, continues in the process through the drying and pressing stages. See generally Transcript, at 29-36; Plaintiff's Exhibit 5.
The Radiclone itself actually is a canister-like structure. Its essential feature is the cyclones, also called hydrocyclones, which are arranged radially within the Radiclone.3
It is important to note at the outset that the original classification under item 668.04 has been abandoned as erroneous by defendant. The customary presumption of correctness, therefore, has been lost. United States v. Magnus, Mabee & Reynard, Inc., 39 CCPA. 1, 7 (1951). It is nevertheless incumbent upon the plaintiff, however, to demonstrate "a factual and legal situation which would enable the courts to determine whether ... its claims ... should be sustained." Id. It is also important to emphasize that, according to the subpart headnote mentioned earlier, "a machine or appliance which is described in this subpart and is also described elsewhere in this part is classifiable in this subpart." The defendant, therefore, receives the benefit of this interpretative guide. Turning first, then, to the plaintiff's proposed classification under item 668.00, it is apparent that the Radiclone is described by that provision save for the word "machine." The parties, therefore, presented extensive evidence at the trial going to the issue of whether the Radiclone is a machine.
No precise definition of the term "machine" can be offered and applied with regularity. Indeed, the Court of Appeals has stated that there has been no "`judicial determination' of what a machine is." United States v. IDL Mfg. & Sales Corp., 48 CCPA 17, 23 (1960). An early decision by the United States Court of Customs Appeals, however, described the basic attributes of machines and this description has withstood the test of time. In Simon, Buhler & Bavmann (Inc.) v. United States, 8 Ct.Cust.Appls. 273 (1918), the court offered the following guidance pertaining to what a machine is:
A mechanical contrivance for utilizing, applying, or modifying energy or force or for the transmission of motion.
Id. at 277. The presence of moving parts has also been found to be an important attribute of machines. See N.D. Cunningham & Co. v. United States, 55 Cust.Ct. 220, 224 (1965).
Plaintiff claims that the Radiclone utilizes energy by modifying force and speed, thereby creating centrifugal forces. Further, plaintiff maintains that the hydrocyclones transmit motion through the use of the tangential inlets and pressure differentials created within each hydrocyclone. Also, citing C.S.D. 81-89, 15 Cust.Bull. 913 (1980), plaintiff claims that the Radiclone converts energy from one form to another and performs work. Plaintiff also claims the Radiclone has moving parts, namely a vacuum breaker and the hydrocyclones themselves.
It would appear that the Radiclone converts energy from one form to another; namely, from pressure to kinetic by modifying the force and speed of the liquid. Further, the Radiclone performs work since it removes impurities from the pulp slurry. It is also apparent that the Radiclone possesses a moving part, a vacuum breaker, essential to the continued operation of the unit.
More problematic for plaintiff are the questions of whether the Radiclone utilizes, applies or modifies energy or force and whether it transmits motion. A prior decision of this court, in Hagan Corp. v. United States, 43 Cust.Ct. 282 (1959), would appear to weigh heavily against plaintiff's position. At issue in Hagan was the proper classification of a "centrifugal separating machine." The function of the device was to separate dust particles from a gas stream. Centrifugal forces were used to collect the dust particles. Both the operation of the units as well as the use of external force appear similar to the Radiclone's operation, yet the court found that the device did not utilize, apply or modify energy or force and did not transmit motion. Id. at 286. The court, however, stated that its view was premised on the record presented in the case. The exhibits and testimony failed to convince the court that the dust collector was a machine in a "tariff sense." Further, the court restated a proposition essential to the instant matter: "Tariff acts are not drawn in the terms of science, but in those of commerce, presumptively the language in common use." Id. at 285 (citing Meyer & Lange v. United States, 8 Ct.Cust.Appls. 181, 182 (1915)). In the case at bar, plaintiff has sufficiently demonstrated that the Radiclone is considered a machine in the papermaking industry. Plaintiff's witnesses testified that in their view the Radiclone is a machine and, they stated that the papermaking industry considers the Radiclone a machine. Furthermore, a text recognized by all three witnesses as authoritative in the papermaking field specifically refers to the Radiclone as a machine. See Ingraham & Forslind, Auxiliary Apparatus and Operations Preliminary to Paper Machines, in 3 Papermaking and Paperboard Making 218-227 (R. Macdonald & J. Franklin 2d ed. 1970) ("In another type of centrifugal, the machine is stationary and the centrifugal force is created from outside the...
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