McLaughlin v. United States , 1934 CCPA LEXIS 320 ( 1934 )

Graham, Judge,

delivered the opinion of the court:

The appellant imported certain wool in the grease at the port of Boston, and made three entries thereof, on December 18, 1931. The collector classified the wool, in each case, under paragraph 1102 (b) of the Tariff Act of 1930, on the basis of its clean content. This paragraph, together with other relevant provisions, is as follows:

Par. 1102. (b) Wools, not specially provided for, and hair of the Angora goat, Cashmere goat, alpaca, and other like animals, in the grease or washed, 34 cents per pound of clean content; scoured, 37 cents per pound of clean content; on the skin, 32 cents per pound of clean content; sorted, or matchings, if not scoured, 35 cents per pound of clean content.

Pab. 1104. The Secretary of the Treasury is hereby authorized and directed to prescribe methods and regulations for carrying out the provisions of this schedule relating to the duties on wool and hair. The Secretary of the Treasury is further authorized and directed to procure from the Secretary of Agriculture, and deposit in such customhouses and other places in the United States or elsewhere as he may designate, sets of the Official Standards of the United States for grades of wool. He is further authorized to display, in the customhouses of the United States, or elsewhere, numbered, but not otherwise identifiable, samples of imported wool and hair, to which are attached data as to clean content and other pertinent facts, for the information of the trade and of customs officers.

The entries were liquidated on January 13, 14, and 15, 1932, after which the importer removed its wool to its processing plant at Harris-ville, R.I.

On March 11, 1932, the importer protested in identical protests, as follows:

1. That the duty was assessed with respect to this entry upon the basis of the estimated scoured yield of the wool and not upon its clean content, i.e., clean content determined on the basis of eliminating from the wool in its scoured state all foreign vegetable matter (which is usually done by the process of car-bonization), as required, as we contend, by the paragraph of the statute above referred to.

2. That the duty was assessed with respect to this entry without allowance for excessive moisture in the wool.

3. That the duty with respect to this entry was not assessed with respect to the true clean content (i.e., clean content carbonized) of the wool, as required, as we contend, by the paragraph of the statute above referred to, but was assessed on the basis of a yield materially in excess of the wool’s true clean content.

The wool in this entry was assessed on the basis of an approximate average yield of 58.62% of its greasy weight. We claim that the yield of clean content (i.e., clean content carbonized) did not exceed an average of 55.58% of the greasy weight.

In response to the protest the collector stated in part:

Duty was assessed on the basis of the appraiser’s estimates of clean content in accordance with the regulations of September 23, 1922, Circular letter of the Secretary of the Treasury, No. 612. The importer did not avail himself of the provisions of T.D. 39767 for a scouring test when the importer is dissatisfied with the return of clean content found by the appraiser.

He also copied and referred to the advisory report of the appraiser, as follows:

These protests object to the clean content reported for the wool comprised in the above entries.

The wool was appraised for duty on the basis of clean yield and as no manipulation was done by the importer to show that the estimates for the appraiser were wrong, the estimates as originally reported are not changed.

On appeal to the United States Customs Court, a trial was had, at which two witnesses were called and examined on behalf of the protestant. Levon M. Mardros Yacubian, manager of the top department at Harrisville, testified that the Stillwater Worsted Mills, the owner of the Harrisville plant, was in the business of converting greasy wool into men’s finished worsted goods. He then detailed with particularity the processes to which the wool in question was subjected. Without going into detail, it will be sufficient to state that the wool was subjected to many processes, including scouring in a four-vat machine, drying, carding, back washing, drying, oiling, gilling, balling, combing, gilling, wetting, and packaging.

Thereafter, the witness offered to prove that the resulting clean wool was weighed and was found to weigh 70,153 pounds as against the determination by the appraiser of 74,530 pounds, and as distinguished from its entered clean weights of 74,069 pounds. The testimony of the witness Hincliife substantially verifies the figure stated in said offer.

This testimony also shows that the witness did not know what methods were used by the appraiser in determining the clean content. Neither is this shown elsewhere in the record.

The witness Yacubian further testified that the methods used by him in processing this wool were the same as those defined in T.D. 39767.

On this record the trial court held, the cases having been consolidated, in a decision by Sullivan, J., McClelland, J., specially concurring, and Brown, J., dissenting, that the importer had not proceeded in conformity with the provisions of T.D. 39767 in ascertaining the clean content of its wool, and overruled the protest.

The importer has appealed from the resulting judgment. In this court, counsel for the importer insist that the said T.D. 39767 is illegal and void, because it purports to require the importer to pay an additional tax, namely, the charge for processing. It is claimed, further, the importer followed the process defined in said T.D. 39767, that the Government did not, and that the weights ascertained by the processes of the importer are the correct, dutiable weights of the clean content of the wool, and should be taken; that the importer had the right, under the circumstances of the case, to prove the true clean content of its wool; and, finally, that said T.D. 39767 was not material and relevant to the protests in issue.

The Government insists that the validity of said T.D. 39767 is not properly raised in this court, it, as the Government contends, not having been raised in the trial court; that if it is properly raised, the regulation is valid; that the importer failed to show compliance with said T.D. 39767; that the importer had no right to use other methods in ascertaining clean content; and that the importer introduced no competent proof to show clean content.

Many interesting questions are raised by tbe parties on this appeal. As we view the matter, however, a discussion of but one of the points raised will be sufficient for the disposition of the case.

The pertinent regulations at the time of this importation were Circular Letter No. 612, of .September 23, 1922, and T.D. 39767, of August 16, 1923. The importer contends that these were repealed by the enactment of the Tariff Act of 1930, and bases its contention upon the claimed authority of United States v. McGraw Wool Co., 19 C.C.P.A. (Customs) 205, T.D. 45296. Counsel are in error about the holding in the cited case. Our conclusion there was not that the enactment of a new tariff law necessarily annulled regulations issued under a former act, but only did so where the new act failed to continue authority in the Secretary of the Treasury to issue such regulations. Where such authority was continued, the existing regulations were continued effective until abrograted or modified by regulations issued under the new act.

The collector reported, in this case, as follows:

Duty was assessed on the basis of the appraiser’s estimates of clean content in accordance with the regulations of September 23,1922, Circular letter of the Secretary of the Treasury, No. 612. The importer did not avail himself of the provisions of T.D. 39767 for a scouring test when the importer is dissatisfied with the return of clean content found by the appraiser.

Said circular letter, or Treasury regulation, No. 612, was in force at the time of the ascertainment by the appraiser of the clean content of the wool here involved.

Said Circular Letter No. 612 is as follows:

September 33, 1933.

REGULATIONS GOVERNING THE ENTRY AND WITHDRAWAL OF WOOL

To Collectors of Customs and Others Concerned:

In order to facilitate the entry and delivery of wool, the following temporary regulations are promulgated for the guidance of customs officers: •

(1) On the entry or withdrawal of wool dutiable on the clean content under the provisions of paragraph 1102 of the tariff act of 1922, the importer will be required to file with the entry or withdrawal a statement showing the number of bales, the marks, grade or quality, weight, unit price, and estimated shrinkage and yield, in substantially the following form:

The total estimated or clean content shall be stated in the entry or withdrawal. (2) In the absence of such statement, or when such statement is obviously incorrect, the collector will take estimated duty on the full weight as the clean content.

(3) The collector shall designate not less than one bale out of such lot or grade for examination at the public stores.

(4) The appraising officers will follow commercial methods in determining the clean content of wool, and the clean content reported by the appraiser will be accepted by the collector in the assessment and liquidation of duties.

(5) If the clean content reported by the appraiser differs from the estimate filed with the entry or withdrawal, the importer shall be immediately notified, and if he does not agree with the appraiser’s findings, representative samples of the lot or lots on which there is a disagreement shall be scoured and the clean content determined by laboratory or factory methods.

W. G. Platt, Acting Assistant Secretary.

It will be observed that the fifth clause of this Treasury letter provides that if the clean content reported by the appraiser differs from the estimate filed with the entry, “the importer shall be immediately notified.”

It must be presumed that this duty was performed by the customs officers. There is nothing in the record which intimates anything to the contrary.

T.D. 39767 is as follows:

Treasury Department, August 16, 1923.

To Collectors of Customs and Others Concerned:

The following regulations should be followed for the scouring of wool where importers appeal from the estimate of the clean content found by the customs officers:

When there is a difference of opinion between the importer and the appraiser ns to the estimate of clean content that shall apply to a certain lot, of wool, the following rules and regulations governing the method of scouring wool must be used:

Representative samples of the lot or lots on which there is a dispute shall be sent to a well-known and properly equipped scouring plant, there to be scoured by the four or five vat system, with' water from 115 to 135 degrees Fahrenheit, and with the solutions properly adapted to the particular type of wool being scoured. Sample of scoured wool shall then be reduced to bone-dry weight by ihe use of recognized standard apparatus, and 13% per cent regain added thereto as determined by the Bureau of Standards.

Results of the test must be reported in the form of a sworn affidavit that the scouring has been done in accordance with the above regulations.

Expense of having scouring done shall be borne by the importer.

MoKenziei Moss, Assistant Secretary.

The preamble of this Treasury decision is somewhat confusing in this respect, that it states “where importers appeal from the estimate of the clean content.” However, in view of the language of said Circular Letter No. 612, we are of opinion that this language should be construed as meaning that where, after the importer has received its notice of a difference between its estimate and that of the appraiser, it is not satisfied, it should indicate the same, as provided by said paragraph 6 of said Circular Letter No. 612.

In any event, T.D. 39767 must be considered as supplementary to said Circular Letter No. 612, and not supplanting or abrogating the same, except as to the method of scouring, in the event the importer expressly disagrees with the appraiser’s findings.

It will be observed that this Treasury regulation gave to the importer, if it questioned the correctness of the estimate of the appraiser, the right to proceed to an ascertainment of the clean content, as provided for in said T.D. 39767; that is, it might have the representative samples sent to a scouring plant for processing as therein provided.

The record, however, discloses that the importer did not attempt to avail itself of the procedure mentioned in T.D. 39767. It is a mistake to assume that the appraiser proceeded under T.D. 39767. As a matter of fact, he proceeded under the authority of said Circular Letter No. 612, in his ascertainment of clean content. What particular method he followed does not appear, nor is it essential here. The fact remains that it is presumed, as a matter of law that he proceeded in conformity with the law and regulations, especially so in the absence of any showing to the contrary. The witness Yacubian, for the importer, testified that he did not know how the appraiser proceeded, or what methods he used. The conclusion must be, therefore, that the estimate and appraisement were properly made by the local appraiser.

In this view of the matter, the question of the validity of said T.D. 39767 becomes immaterial in this case. There was no attempt to proceed under it, either by the importer or by the Government.

The importer, after having been notified as provided in said Circular Letter No. 612, we must assume from the record, did not indicate to the officials of the customs any disagreement with the estimate of clean content, as ascertained by the appraiser, and, hence, the provisions of said T.D. 39767 were not called into operation.

It may be said the importer was not obliged to have recourse to T.D. 39767, because it was invalid. If this be conceded, the appraisement was nevertheless conducted under a regulation which is concededly valid, and the importer must, if it is to prevail here, establish that, in some way, while proceeding under said Circular Letter No. 612, the customs officers deprived it of rights which it was entitled to under the law.

Upon receipt of the wool in question by the importer,- it removed it to its plant, the Stillwater Worsted Mills, at Harrisville, R..L, and there subjected it to many processes. It was repeatedly processed, far beyond the provisions of Circular Letter No. 612. After this had been done, the importer weighed the results of its processes, estimated the clean content, and then insisted that this clean content be taken as the dutiable quantity. There is no attack upon the processes used by the Government. The only claim is that the processes used by the importer were substantially in compliance with T.D. 39767, and were correct.

The importer was, therefore, substituting its own methods of arriving at the dutiable content in lieu of the method provided by law and the customs regulations. This it may not do. We have held that where certain customs regulations are in force, and the Government itself does not comply with such regulations, the importer may show this, and may, if it has followed such regulations, establish the true dutiable value or quantity of its goods. Gallagher & Ascher v. United States, 14 Ct. Cust. Appls. 38, T.D. 41548; Penick & Ford v. United States, 12 Ct. Cust. Appls. 432, T.D. 40611. We have never held, however, that an importer may disregard reasonable regulations promulgated by the Treasury Department, using a method of its own and then be permitted to establish dutiable quantity or quality by the results of the substitute method it has utilized. To do so would be to practically destroy the power of the Treasury Department to make such customs.regulations.

While we do not find ourselves in harmony with all that has been said in the decision of the trial court, we concur in the conclusion reached, and the judgment of the United States Customs Court is affirmed.