Travenol Laboratories, Inc. v. US, Court No. 89-08-00469.
Decision Date | 03 February 1993 |
Docket Number | Court No. 89-08-00469. |
Citation | 813 F. Supp. 840 |
Parties | TRAVENOL LABORATORIES, INC., Plaintiff, v. UNITED STATES, Defendant. |
Court | U.S. Court of International Trade |
Katten Muchin & Zavis, Mark S. Zolno, Lynn S. Baker and Jeremy R. Page, Chicago, IL, for plaintiff.
Stuart M. Gerson, Asst. Atty. Gen., Joseph I. Liebman, Atty. in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Div., U.S. Dept. of Justice, Mark S. Sochaczewsky, Office of Asst. Chief Counsel, U.S. Customs Service, Washington, DC, Chi S. Choy, New York City, of counsel, for defendant.
In this action, which has been designated a test case pursuant to CIT Rule 84, the plaintiff recites Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), that it is "emphatically the province and duty of the judicial department to say what the law is" but also takes the position that that has already occurred in a matter like this.
The origin of this case can be found in subtitle B of Title I of Public Law No. 97-446, 96 Stat. 2329, 2346, known as the Educational, Scientific, and Cultural Materials Importation Act of 1982 and which had as its purpose "enabling the United States to give effect to the Nairobi Protocol to the Florence Agreement on the Importation of Educational, Scientific, and Cultural Materials ... with a view to contributing to the cause of peace through freer exchange of ideas and knowledge across national boundaries." The referenced Agreement on the Importation of Educational, Scientific, and Cultural Materials, opened for signature November 22, 1950, T.I.A.S. No. 6129, 17 U.S.T. 1835, 131 U.N.T.S. 25, provided that contracting states undertake not to apply customs duties or other charges on books, publications and documents or on educational, scientific and cultural materials. The materials contemplated by the latter grouping were listed in annexes B ("Works of Art and Collectors' Pieces of an Educational, Scientific or Cultural Character"), C ("Visual and Auditory Materials of an Educational, Scientific or Cultural Character"), D ("Scientific Instruments or Apparatus") and E ("Articles for the Blind"). According to U.S. Senate Report No. 564, 97th Cong., 2d Sess. 16-17 (1982), U.S.Code Cong. & Admin.News, 1982, 4078, 4093-4094, the Nairobi Protocol, which went into effect January 2, 1982, 1259 U.N.T.S. 2, broadened the scope of the Florence Agreement by embracing technologically-new articles and previously-uncovered works of art, films etc. That report issued in conjunction with the 1982 congressional enactment, supra, section 165 of which eliminated duties on articles for the blind or other handicapped persons by amending the Tariff Schedules of the United States ("TSUS") to provide:
Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons Articles for the blind 870.50 Books, music, and pamphlets, in raised print, used exclusively by or for them ............. Free Free 870.55 Braille tablets, cubarithms, and special apparatus, machines presses, and types for their use or benefit exclusively ... Free Free 870.60 Other ......................... Free Free
96 Stat. 2347. In addition, section 165 set forth the following new headnote:
96 Stat. 2348. Depending on the year, these provisions were placed in the Appendix to the TSUS at page 9-49 for 1985 and 1986, for example, or, as contemplated above, in TSUS Schedule 8, Part 7 in 19881.
Plaintiff's Exhibit 2.
Also imported from Spain were four-prong cycler sets with universal connectors for use in peritoneal dialysis. That approach entails use of the human body's peritoneal membrane, rather than the external, artificial dialyzer, as a filter. Connected to a dialysis machine, the cycler set conveys liquid dialysate through the abdominal cavity, where it collects waste filtered from the blood by the peritoneal membrane.
Either way, the imported goods were classified by the U.S. Customs Service under TSUS item 709.17 ("Electro-medical apparatus, and parts thereof: ... Other"), and duties ranging from 4.2 to 4.7 percent were assessed ad valorem, depending on the time of entry.
Travenol protested that classification and now appeals to this court from the Service's denial(s) of its protest(s).2 The plaintiff takes the position that the merchandise was entitled to entry duty-free as articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons, as set forth above. In support of this position, the plaintiff relies on the following stipulations, among others, as well as on evidence adduced at trial:
The statute governing a case such as this provides that the decision of Customs is presumed to be correct and the burden of proving otherwise rests upon the party challenging that decision. 28 U.S.C. § 2639(a). Moreover, the court finds that the goods at bar clearly are for an electro-medical apparatus. Nonetheless, the plaintiff ably presents argument in support of duty-free treatment, which has reduced defendant's post-trial position to the following point:
... But for the fact that the imported merchandise is therapeutic, defendant would agree that it should be classified under item 960.15, TSUS, which, if applicable, prevails over other provisions in schedules 1-8, pursuant to Headnote 1 of Part 4, Schedule 9 of the TSUS.4
A
13 CIT at 521, 720 F.Supp. at 1000. The court held that, while implantation of a hip prosthesis alleviates the pain and discomfort associated with the underlying affliction, that operation does not cure it and thus is not therapeutic for the purposes of the TSUS. The court of appeals affirmed this decision, pointing out that "the word `therapeutic' has many...
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