C.J. Tower, Inc. v. United States

Slip Op. 03 - 58
UNITED STATES COURT OF INTERNATIONAL TRADE
- - - - - - - - - - - - - - - - - - x
C.J. TOWER, INC., :
Plaintiff, :
v. : Court No. 92-01-00035
:
UNITED STATES,
:
Defendant.
:
- - - - - - - - - - - - - - - - - - x
Opinion & Order
[Upon cross-motions as to classification of
machinery used in processing paper pulp,
summary judgment for the defendant.]
Decided: May 30, 2003
Barnes, Richardson & Colburn (Sandra Liss Friedman) for the
plaintiff.
Robert D. McCallum, Jr., Assistant Attorney General; John J.
Mahon, Acting Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Bruce N. Stratvert); and Office of Assistant Chief Coun-
sel, International Trade Litigation, U.S. Bureau of Customs and
Border Protection (Edward N. Maurer), of counsel, for the defend-
ant.
AQUILINO, Judge: The parties to this action have managed
to reduce its essence to but a few words selected from the Har-
monized Tariff Schedule of the United States (HTSUS) (1989), not-
withstanding the impressive size and complexity of the underlying
machinery imported from Canada to advance the processing of pulp
into the kind of material upon which those words have been written.
Court No. 92-01-00035 Page 2
Duties of 3.1 percent ad valorem were assessed on the
seven entries of that equipment by the U.S. Customs Service per
HTSUS subheading 8421.21 ("Filtering or purifying machinery and
apparatus for liquids: For filtering or purifying water"). The
importer of record of the merchandise lodged a protest of that
classification which was denied by Customs, whereupon the plaintiff
presses its prayer herein for duty-free entry under HTSUS subhead-
ing 8439.10 ("Machinery for making pulp of fibrous cellulosic
material").
Each side is of the view that it is entitled to judgment
as a matter of law. That is, each takes the position that there is
no genuine issue as to any material fact within the meaning of
USCIT Rule 56(c) and has therefore moved for summary judgment
pursuant that rule.
I
Rule 56(h) provides that, upon any motion for summary
judgment, there shall be annexed a statement of the material facts
as to which the moving party contends there is no genuine issue to
be tried and also that the
papers opposing a motion for summary judgment shall
include a separate . . . statement of the material facts
as to which it is contended that there exists a genuine
issue to be tried. All material facts set forth in the
statement required to be served by the moving party will
be deemed to be admitted unless controverted by the
statement required to be served by the opposing party.
Court No. 92-01-00035 Page 3
Appended to plaintiff's motion is its required affirma-
tive statement, along with a supporting affidavit by the manager of
the successor to the corporate manufacturer of the equipment at
bar. Among other things, that statement avers:
4. The imported merchandise consists of machines
known as disc filters . . . and drum filters . . . which
are specially designed for use solely in the pulp making
process.
5. As imported, the disc filters are used in the
thermo-mechanical pulp making process to reduce a pulp
slurry consisting of approximately one percent wood chip
fiber and 99 percent water to approximately ten percent
fiber and 90 percent water, a process known as "decker-
ing" or "thickening". This is done to facilitate high
density storage of the pulp during the pulp making
process.
6. The imported disc filters consist of a central
collector containing up to thirty parallel filters in
disc shape, each filter consisting of up to twelve
individual sectors. Each sector is made up of a stain-
less steel frame with a membrane or filter cloth composed
of polypropylene stretched over its face.
7. In addition, the other main components of the
disc filters are the vat, which is the bottom portion
. . . through which the slurry passes during the thicken-
ing process; the feedbox, through which the rate and
density of the slurry entering the machine is controlled
and which is welded to the vat; the bronze worm gear and
bearings used to drive the machine; the dectagonal center
shaft connected to the valve, through which the filtrate
(water and some pulp fibers) is extracted; the valve
controlling the vacuum, which connects the barometric leg
with the center shaft; the stainless steel hood that
serves as a cover for the machine; oscillating showers
for cleaning the cover; the discharge nozzles for removal
of thickened pulp from the sectors; the crenelation
chutes that assist in discharging the thickened pulp;
and, a repulper conveyor that blends and channels the
thickened pulp out of the machine toward the storage
area.
Court No. 92-01-00035 Page 4
8. Each disc is up to 15 feet in diameter, and can
provide an approximate filtration area of 310 square
feet.
9. The discs and center shaft are rotated at
approximately 1 RPM.
10. As the discs rotate, the lower portion of each
sector passes through the one percent slurry contained in
the vat.
11. As the vacuum is applied to each disc, the pulp
adheres to the filter cloth on the sectors. Some of the
filtrate from the one percent slurry passes through the
filter cloth into the center shaft and out of the
machine, down a twenty-five foot barometric leg, leaving
fibers adhering to the outside of the filter cloth.
12. The discharge nozzles apply a water spray,
consisting of water previously removed during the
process, to free the remaining pulp slurry from each
sector.
13. The discharged pulp fiber is removed from the
machine through the crenelation chutes.
14. The pulp fiber drops through the crenelation
chutes into the repulper conveyor, which then transfers
the thickened pulp fiber to storage tanks.
15. The pulp fiber has now been concentrated from a
one percent consistency to approximately a ten percent
consistency.
16. When the pulp fiber is to be transferred to the
next stage in the pulpmaking process, it is rediluted
with the filtrate previously removed during the pre-
storage concentration, or with water taken from the
pulpmill. At this time, the slurry is rediluted to yield
approximately the same one percent wood chip pulp/99
percent water consistency that it had prior to deckering.
This allows the pulp slurry again to flow freely.
17. The disc filters are also used in "saveall"
applications, a process designed to remove additional
fibers and chemicals from "white water." White water
refers to the liquid component of the pulp slurry after
it was separated from the wood fibers during dewatering,
which occurs after the slurry passes through the forming
wire of the paper making machine.
Court No. 92-01-00035 Page 5
18. After the saveall application, the white water
is either returned to the pulpmill and used as dilution
or shower water, or is sent to an effluent unit for
filtering and purifying prior to disposal as waste. The
recovered fibers are returned to the feed stock.
19. As imported, the drum filters are used in pulp
mills as deckers for thickening the pulp slurry to
facilitate its storage during the paper making process.
20. The drum filter is approximately twelve feet
wide in diameter, and is covered with a polypropylene
filter cloth that acts as a membrane through which water
passes.
21. In addition, the other main components of drum
filters are the vat, which is the bottom portion . . .
through which the slurry passes during the thickening
process; feedbox, through which the rate and density of
the slurry entering the machine is controlled; cylinder
head drive unit, which is used to drive the drum; center
shaft connected to the valve, through which the filtrate
is extracted; the valve controlling the vacuum, which
connects the barometric leg with the center shaft; doctor
blade used to lift the pulp sheet off the membrane; and,
repulper conveyor that channels the thickened pulp out of
the machine toward the storage area.
22. The drum filter is rotated through the vat
containing the one percent pulp slurry. A vacuum created
through the action of the barometric leg and the valve is
applied to the drum, which causes a sheet to build up on
the drum's outer surface.
23. The vacuum also draws some of the filtrate
through the cylinder into the center shaft, which removes
the water from the drum via the valve and the barometric
leg.
24. A doctor blade is used to lift the pulp sheet
off the drum's filter cloth, where it is then removed by
the repulper conveyor and thereafter transferred to
storage.
25. At this point, the pulp slurry has been concen-
trated to approximately a ten percent consistency.
Court No. 92-01-00035 Page 6
26. Drum filters are built to customer specifica-
tions and their dimensions depend on plant production,
physical size and fiber characteristics.
27. As imported, the drum filters may also be used
in saveall applications to recover fibers and chemicals
from the white water after the slurry has been dewatered.
28. As in the case with disc filters when used in
saveall applications, after using a drum filter in a
saveall application, the white water is either returned
to the pulp mill and used as dilution or shower water, or
is sent to an effluent unit for filtering and purifying
prior to disposal as waste.
29. As imported, the drum filters can only be used
as deckers or in saveall applications. While drum
filters may be designed for use in washing or deinking
operations, th[ose] at issue are not designed for such
use, nor can they be used in [such] applications because
they lack shower pipe assemblies, necessary components
for washing.
30. The imported merchandise is not used to com-
pletely remove the water component from the pulp compo-
nent in the paper slurry.
31. The imported merchandise is not used to separate
water containing chemicals from the pulp slurry.
32. The filtrate removed from the pulp slurry during
the deckering process is returned to the pulp slurry once
the slurry is ready to be moved to the next step in the
pulpmaking process.
33. The filtrate removed from the pulp slurry is not
replaced with clear water.
34. The imported merchandise is not used in the
final dewatering stage of the paper making process.
35. The imported merchandise is not suitable for use
in the final dewatering stage of the papermaking process.
36. The imported devices are machinery used in the
process for making pulp of fibrous cellulosic materials.
37. Thickening or deckering is a necessary step in
making pulp of fibrous cellulosic materials.
Court No. 92-01-00035 Page 7
Defendant's formal response to this statement admits
foregoing paragraphs 6, 8, 9, 11, 20, 22, 23, 26 and 30. It admits
in part paragraphs 4, 5, 7, 10, 12-19, 21, 24, 25, 28, 29, 34-37.
Paragraphs 27 and 33 are denied "for lack of information".
Defendant's denials of paragraphs 31 and 32 state:
31. . . . [T]he Government believes the statement
turns on the meaning of "separate." Based on plaintiff's
brief, it appears plaintiff interprets "separate" as
requiring a complete separation. If that definition of
"separate" applies, then it is true the imported merchan-
dise does not remove 100% of the water in the pulp stock.
32. . . . While we agree that a liquid may be added
to the 10% pulp slurry during later operations, we do not
believe that the liquid is water with the same character-
istics as the filtrate that is removed by the deckering
process. We believe the water which is used to rehydrate
the slurry is a cleaner water, with fewer of the contami-
nants that are removed in the deckering process, such as
dirt, bark, undigested wood chips, and dissolved chemi-
cals.
The defendant avers that these two denials, as well as
that of paragraph 33, "may create a material issue of fact". It
suggests the same with regard to certain, partial denials of para-
graphs 5, 12 and 16. To the extent it has denied any part of the
paragraphs not admitted on their face, the defendant does not
consider that those responses engender any material issue of fact
requiring trial.
Indeed, the defendant itself has cross-moved for summary
judgment. Its Statement of Additional Material Facts as to Which
There is No Genuine Issue to be Tried, which is accompanied by dec-
Court No. 92-01-00035 Page 8
larations from two Customs National Import Specialists, is as
follows:
1. Disc and drum filters are used in a wide variety
of industries and processes, including the treatment of
metallurgical slurries, food processing, sewage treat-
ment, petroleum and chemical processing, as well as in
pulp processing. . . .
2. In all these operations, the disc and drum fil-
ters operate on the same guiding principle and employ
. . . much of the same technology. Specifically, a feed-
stock contains two or more different materials (a liquid
and a solid); the feedstock passes over a selective
barrier; a portion of the liquid (and some solid parti-
cles small enough to pass through the barrier) passes
through the barrier, while the rest of the materials do
not pass through, and instead adhere to the surface of
the selective barrier. The adhering material is then
removed from the machine, and thus, the feedstock is
physically separated into two materials with their own
compositions; one is richer in one of the feedstock
materials, and the other is poorer. . . .
3. The disc and drum filters are commonly referred
to in reference books and in the industries that use them
as filtering machines. . . .
4. The water that is added back to the thickened
pulp has a lower concentration of particulate matter
and/or dissolved chemicals than the water which is the
filtrate from the thickener. After the "water" has been
added back, the pulp has been beneficiated because the
concentration of impurities in the water-- particulate
matter and dissolved chemicals-- has been significantly
reduced by the process. . . .
5. Water is added back after one or more intermedi-
ate steps, which are "high consistency" operations.
. . .
The plaintiff has not filed any response to this state-
ment, whereupon the defendant has interposed a motion to deem its
contents admitted. Plaintiff's reply to this motion is that,
Court No. 92-01-00035 Page 9
because Defendant's Material Fact Statement does not
contain material facts as defined in Anderson [v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)], they are not
deemed admitted pursuant to CIT Rule 56[(h), supra].
As indicated hereinafter, the court concurs, and defendant's motion
for admission is hereby denied.
As for plaintiff's own statement, quoted above, its pro-
ponent has interposed a motion to strike defendant's response
thereto as not in conformity with Rule 56(h), supra, and thus to
deem that statement admitted in its entirety thereunder. Plain-
tiff's point is well-taken, as nowhere therein does the defendant
"contend[] that there exists a genuine issue to be tried." Indeed,
to repeat, both sides are of the view that this action does not
require a trial.1
Upon review of all of the papers presented by them, and
as discussed hereinafter, the court concludes that this action is
susceptible to summary judgment. Jurisdiction is pursuant to 28
U.S.C. §1581(a).
II
Defendant's classification (8421.21) and plaintiff's
proposed alternative classification (8439.10) are found within 1989
HTSUS chapter 84 of its section XVI, which encompasses machinery
1
See, e.g., Plaintiff's Motion for Summary Judgment, first
page; Defendant's Opposition to Plaintiff's Motion to Strike its
Response to Plaintiff's Statement of Facts Not in Dispute, p. 1.
Court No. 92-01-00035 Page 10
and mechanical appliances, etc. Headnote 2 to that chapter states
that, subject to the operation of note 3 to section XVI,
a machine or appliance which answers to a description in
one or more of the headings 8401 to 8424 and at the same
time to a description in one or more of the headings 8425
to 8480 is to be classified under the appropriate heading
of the former group and not the latter.
The referenced note 3 states:
Unless the context otherwise requires, composite machines
consisting of two or more machines fitted together to
form a whole and other machines adapted for the purpose
of performing two or more complementary or alternative
functions are to be classified as if consisting only of
that component or as being that machine which performs
the principal function.
A
As oft opined by the Court of Appeals for the Federal
Circuit, e.g., Rocknel Fastener, Inc. v. United States, 267 F.3d
1354, 1356-57 (Fed.Cir. 2001), the meaning of a tariff term, a
matter of statutory construction, is a question of law, citing
Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1366 (Fed.Cir.
1998). When, as in this action, that term is not defined in either
the HTSUS or its legislative history, its "correct meaning is its
common meaning." Mita Copystar America v. United States, 21 F.3d
1079, 1082 (Fed.Cir. 1994). The common meaning of a term used in
commerce is presumed to be the same as its commercial meaning.
Simod America Corp. v. United States, 872 F.2d 1572, 1576 (Fed.
Cir. 1989). To ascertain that common meaning, a court "may consult
Court No. 92-01-00035 Page 11
dictionaries, scientific authorities, and other reliable informa-
tion sources"2 and "lexicographic and other materials." Id.(1)
The crux of the instant controversy, according to the
plaintiff in its motion, is that the imported merchandise is not a
filter for purposes of HTSUS subheading 8421.213; "[d]ictionary and
scientific lexicons . . . specifically acknowledge that the im-
ported devices are not filters." Plaintiff's Memorandum of Law, p.
8. The defendant disagrees.
(a)
To refer first to such sources is to learn that the
McGraw-Hill Dictionary of Scientific and Technical Terms, p. 799
(6th ed. 2003), for example, defines filter as a "porous article or
material for separating suspended particulate matter from liquids
by passing the liquid through the pores in the filter and sieving
out the solids". Webster's Third New International Dictionary, p.
850 (1993), defines the term as "a porous article or mass (as of
cloth, paper, or sand) that serves as a medium for separating from
a liquid or gas passed through it matter held in suspension or
2
C.J. Tower & Sons of Buffalo, Inc. v. United States, 69
CCPA 128, 133, 673 F.2d 1268, 1271 (1982).
3
The plaintiff argues that the imported machines "do not
filter or purify, and are primarily used to thicken pulp on a
temporary basis by removing some of the water component from
the stock." Plaintiff's Memorandum of Law in Opposition to
Defendant's Cross-Motion for Summary Judgment, p. 5.
Court No. 92-01-00035 Page 12
dissolved impurities or coloring matter". Volume 7 of the McGraw-
Hill Encyclopedia of Science and Technology (9th ed. 2002),
describes the process of filtration at page 119 in the following
manner:
The separation of solid particles from a fluid-
solids suspension of which they are a part by passage of
most of the fluid through a septum or membrane that re-
tains most of the solids on or within itself. The septum
is called a filter medium, and the equipment assembly
that holds the medium and provides space for the accumu-
lated solids is called a filter. The fluid may be a gas
or a liquid. The solid particles may be coarse or very
fine, and their concentration in the suspension may be
extremely low (a few parts per million) or quite high
(>50%).
The object of filtration may be to purify the fluid
by clarification or to recover clean, fluid-free parti-
cles, or both. In most filtrations the solids-fluid
separation is not perfect. In general, the closer the
approach to perfection, the more costly the filtration;
thus the operator of the process cannot justify a more
thorough separation than is required.
* * *
Liquid filters are of two major classes, cake fil-
ters and clarifying filters. The former are so called
because they separate slurries carrying relatively large
amounts of solids. They build up on the filter medium as
a visible, removable cake which normally is discharged
"dry" (that is, as a moist mass), frequently after being
washed in the filter. It is on the surface of this cake
that filtration takes place after the first layer is
formed on the medium. . . .
A similar definition of filtration is found in 1 Van Nostrand's
Scientific Encyclopedia, pp. 1146-48 (7th ed. 1989), to wit:
A very common requirement of several industries,
such as chemical and biologicals manufacturing, food
processing, ore processing, and water and waste treat-
ment, is the separation of solids that are suspended in
liquids. Filtration is a principal means for effecting
such separation. . . .
Court No. 92-01-00035 Page 13
In filtration, the suspension containing the solids
is caused to pass through a porous medium. Numerous
filtering media are used, including paper, cloth, and
wire cloth. Filtration may be conducted under positive
pressure or vacuum.
* * *
Rotary Drum Filters. This design is probably the most
versatile and widely used continuous filter in the
process industries. The rotary drum filter makes it
possible to concentrate slurry solids to dry (moist)
cakes, to wash solubles from such cakes when needed, and
to produce a clarified effluent. . . .
A horizontal drum is partially submerged in a vat
that contains the slurry to be filtered. A vacuum is ap-
plied through a central valve on the drum shaft to indi-
vidual compartments or sections that provide support and
drainage for the filter medium. The filter cake is form-
ed while the sections were immersed. When the sections
emerge (because of continuous rotation of the drum),
additional dewatering takes place as air passes through
the cake, thus displacing a significant portion of the
mother liquor. Before final dewatering, wash water may
be applied to remove any remaining soluble solids. Dis-
charge of the dewatered cake is effected by cutting off
the vacuum and applying a reverse air blow. As the cake
separates from the filter cloth, a scrapper blade de-
flects it whereupon it is dropped to a conveyor or
discharge trough below. . . .
(b)
The plaintiff does not present definitions of filter and
filtration that differ materially from the foregoing. Rather, it
emphasizes the limited separation of water4 from the slurry by its
machines and the fact that even that partial dewatering is only
temporary, with water returned to the pulp during subsequent
processing. In support of its thesis that that thickening or
4
See, e.g., Plaintiff's Rule 56(i) Statement, para. 30; Af-
fidavit of Harry A. Abbott, para. 37; Plaintiff's Memorandum of
Law, pp. 9, 12, 14; Plaintiff's Memorandum of Law in Opposition
to Defendant's Cross-Motion for Summary Judgement, p. 7.
Court No. 92-01-00035 Page 14
"deckering" does not amount to filtration, the plaintiff refers the
court to Noss Company v. United States, 7 CIT 111, 588 F.Supp. 1408(1984), aff'd, 753 F.2d 1052 (Fed.Cir. 1985), and A.N. Deringer v.
United States, 10 CIT 798, 656 F.Supp. 670 (1986), aff'd, 832 F.2d
592 (Fed.Cir. 1987), both of which cases have been affirmatively
relied upon in Arthur L. Franklin v. United States, 289 F.3d 753,
758-59 (Fed.Cir. 2002). At issue in Noss was the classification
under the Tariff Schedules of the United States ("TSUS") then in
effect of a centrifugal cleaner known as a Radiclone, which was
used for treating pulp in the papermaking process. The evidence in
that action, as in this one, showed importation of the merchandise
for use in that process. Upon final analysis, however, the court
in Noss could not overlook the TSUS headnote of the kind quoted
hereinabove, which afforded precedence to the government's
classification (albeit proposed for the first time at trial) over
the specific TSUS item favored by the plaintiff but subordinate in
the governing tariff schedule. See 7 CIT at 117, 588 F.Supp. at
1413. That is, the court concluded that the Radiclone satisfied
TSUS item 661.95 ("Centrifuges; filtering and purifying machinery
and apparatus . . . for liquids or gases") by finding it to be
within a general class of machinery "that have the effect of
removing impurities from liquids or gases by various processes."5
5
7 CIT at 116, 588 F.Supp. at 1413. The court apparently
accepted the parties' agreement that the Radiclone "does not
'filter' since that process involves the passage of the impure
material over a porous surface", id., but it determined to dis-
regard TSUS item 661.95's conjoiner of "filtering" with "purify-
ing", finding that that "apparatus . . . rid liquids or gases of
impurities." 7 CIT at 116, 588 F.Supp. at 1412.
Court No. 92-01-00035 Page 15
"This sort of equipment is often referred to as 'liquid-solid
separators[]' . . .." Id.The court in A.N. Deringer, supra, found the primary pur-
pose of the subject merchandise was to filter and purify raw maple
sap by filtering excess water away from it. The "process described
is filtering or purifying whether the permeate (excess water) or
the concentrate (dewatered sap) is the ultimate product desired."
10 CIT at 800, 656 F.Supp. at 672. Moreover, that ultimate product
was obtained by applying heat to cause additional water to evap-
orate therefrom. See 10 CIT at 799, 656 F.Supp. at 671.
In short, plaintiff's quantum thesis of filtration is
neither supported by the case law nor by the definitions referred
to above. Indeed, as quoted from the McGraw-Hill Encyclopedia of
Science and Technology, "the closer the approach to perfection, the
more costly the filtration; thus the operator of the process cannot
justify a more thorough separation than is required."
III
In conclusion, there is no question, and the court so
finds, that plaintiff's machinery is for making pulp of fibrous
cellulosic material within the meaning of HTSUS subheading 8439.10,
but the court also concludes that that merchandise falls within the
ambit of subheading 8421.21 ("Filtering . . . machinery and
apparatus for liquids: For filtering . . . water") and that head-
Court No. 92-01-00035 Page 16
note 2 to HTSUS chapter 84 of its section XVI, supra, therefore
counsels classification under that lower-numbered subheading. Cf.
A.N. Deringer v. United States, 10 CIT 798, 801, 656 F.Supp. 670,
672 (1986), aff'd, 832 F.2d 592 (Fed.Cir. 1987). In fact, plain-
tiff's most articulate papers6 in support of its motion for summary
judgment, nonetheless, name the goods at issue throughout as
"filters". This being what they in essence are, that motion for
relief from the duties imposed must be denied, and defendant's
cross-motion for summary judgment will therefore be granted.
So ordered.
Decided: New York, New York
May 30, 2003
________________________________
Judge
6
Subsequent to their filing and also to a decision of the
Court of International Trade sub nom. Arthur L. Franklin d/b/a
Health Technologies Network v. United States, 25 CIT , 135
F.Supp.2d 1336 (2001), the plaintiff has called this court's
attention to the reversal of that decision by the Court of Ap-
peals for the Federal Circuit, Arthur L. Franklin v. United
States, 289 F.3d 753 (2002). Plaintiff's letter expresses the
belief that that opinion on appeal "supports the construction
of the phrase 'filtering or purifying machinery' espoused by
plaintiff [here]in". To be sure, this court has difficulty un-
derstanding how. At issue in that matter was "Franklin's one-
gram bag[] of coral sand", 289 F.3d at 761, admittedly intended
to purify a glass of H20+ for human consumption, but how that
sand can truly be classified under HTSUS heading 8421 ("Centri-
fuges, including centrifugal dryers; filtering or purifying
machinery and apparatus . . . ") only the members of the par-
ticular panel of the court of appeals might be able, but have
yet, to explain.