United States v. Siemens America, Inc., Appeal No. 80-33
| Decision Date | 27 August 1981 |
| Docket Number | Appeal No. 80-33,80-35. |
| Citation | 653 F.2d 471 |
| Parties | The UNITED STATES, Appellant, v. SIEMENS AMERICA, INC. and Siemens Corporation, Appellees. SIEMENS AMERICA, INC. and Siemens Corporation, Appellants, v. The UNITED STATES, Appellee. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
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Thomas S. Martin, Acting Asst. Atty. Gen., Washington, D. C., David M. Cohen, Director, Joseph I. Liebman, Atty. in charge, Madeline B. Kuflik, New York City, for United States.
Louis Schneider, Angela Pitsaris, New York City, for Siemens.
Before MARKEY, Chief Judge, and RICH, BALDWIN, MILLER, and NIES, Judges.
This matter is before us on appeal by The United States (Government) and cross-appeal by Siemens America, Inc. and Siemens Corporation (collectively, Siemens) from the judgment of the United States Customs Court, now the United States Court of International Trade (court), 84 Cust.Ct. ___, C.D. 4856, 496 F.Supp. 266 (1980). The court held that all the imported merchandise, known as surge voltage protectors1 (SVP), was improperly classified as "other electrical apparatus for the protection of electrical circuits" under item 685.90 of the Tariff Schedules of the United States (TSUS) and sustained Siemens' alternative claim for classification as "electronic tubes" under item 687.60, TSUS. The court also held that the SVPs containing Pm147 were not classifiable under item 709.66, TSUS, as "apparatus based on the use of radiations from radioactive substances," the provision Siemens had primarily claimed to be applicable. The rejection of classification under item 709.66 is the subject of Siemens' cross-appeal. We affirm the judgment of the court dismissing Siemens' claim under item 709.66, reverse the judgment of the court holding the SVPs properly dutiable under item 687.60, and remand this matter for further action consistent with this opinion.
The SVPs in issue are gas discharge tubes consisting of a hermetically sealed glass insulator filled with argon in which two electrodes are spacially set apart. Some of the imported SVPs contain a minute quantity of Pm147 within the glass insulator. To protect electrical circuitry from damage and to protect against injury to personnel, SVPs provide a conductive path for unwanted and excessive surges of voltage caused by lightning, powerline shorts and other sources.
At a specific voltage level known as the "breakdown voltage," SVPs will switch from a nonconductive state to a conductive state quite rapidly when subjected to an excessive voltage transient. Conduction occurs when the argon within the tube becomes ionized.
In the imported SVPs containing Pm147, the radioactive material emits radiation in the form of beta particles which preionizes or facilitates ionization of the argon thus stabilizing the breakdown voltage and increasing the speed of ionization. The breakdown voltage itself is a design parameter controlled primarily by the electrode spacing and gas fill pressure of the SVPs.
According to the court below, the record clearly established that the SVPs are used for the protection of electrical circuits and are described in item 685.90 as classified by the Customs Service (Customs). However, in accordance with headnote 1 (vi) of Schedule 6, Part 5, supra, classification under item 685.90 is precluded if the SVPs with Pm147 are described in item 709.66 as claimed by Siemens. The court stated that the "based on" language in item 709.66 evinced a "Congressional intent to embrace merchandise in which radiation from radioactive substances is its sine qua non." 496 F.Supp. at 269. From the evidence presented, the court found that the SVP's over-voltage protection function is not based upon the use of radioactive material, that the SVPs' argon ionizes irrespective of the presence of Pm147, that the speed of ionization and a specific breakdown voltage is achievable without the use of radioactive substances, and that the breakdown voltage is controlled by factors other than the presence of radiation. The court concluded that the inclusion of Pm147 in the SVPs is not essential to their basic function, that Pm147 is not a fundamental and essential constituent of the SVPs, and, therefore, that radiation is not the sine qua non of the SVPs in issue. Accordingly, item 709.66 did not describe the SVPs containing Pm147.
Siemens argues that since Pm147 serves to stabilize the SVP's breakdown voltage and since the breakdown voltage is an important SVP specification, the radiation from Pm147 in a SVP is an essential and fundamental determinant of SVP characteristics. Continuing, Siemens argues that the plain meaning of the words "based on" indicates that it is unnecessary that the sole characteristic of an apparatus derives from the radiation and that it is only necessary that the radiation be the underlying "basis" on which the apparatus is dependent which, according to Siemens, is clearly the case with its SVPs containing Pm147.
Concerning whether the SVPs are described in item 687.60, the court construed the statutory language of the eo nomine provision for "electronic tubes" in accordance with its common meaning. According to certain technical lexicographic authorities relied upon by the court, an "electron tube"2 is defined in terms of rudimentary but essential features, i. e., an airtight enclosure, evacuated or gas-filled, providing a medium for the flow and conduction of electrons between two electrodes. Since the SVPs satisfied those basic criteria, the tubes are described in item 687.60. Additionally, the court found that the SVPs are "cold cathode tubes" which by definition are electron tubes.
The Government maintains that the common meaning definition of the term "electronic tube" used by the lower court is incomplete and, while describing the basic physical tube components, fails to include the unique functions for which electronic tubes were developed and for which they are known. The Government argues that the function of electronic tubes is based upon the controlled flow of electrons which enables electronic tubes to assist in the performance of various functions such as amplification, conversion of alternating current to direct current, detection, rectification, and the like; therefore, the definition of electronic tubes, according to the Government, must reflect the tube characteristic of ability to control the flow of electrons and various functions performed by various electronic tubes.
Next the court considered the relative specificity of items 685.90 and 687.60 in accordance with General Interpretative Rule 10(c), TSUS,3 since both items describe the SVPs in issue. According to the court, the provision that more specifically describes the SVPs is the item having requirements which are more difficult to satisfy and that item is the eo nomine provision for electronic tubes since electronic tubes are "essentially one kind of device" (even though they perform a variety of functions) and circuit protector apparatus are "comprised of a number of highly diverse devices" which perform different functions...
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