Kanematsu USA Inc. v. United States

Slip Op. 02-9
United States Court of International Trade
KANEMATSU USA INC.,
Plaintiff, Before: Pogue, Judge
v. Court No. 95-04-00405
UNITED STATES,
Defendant.
[Customs ruling affirmed.]
Decided: January 29, 2002
Serko & Simon LLP, (Daniel J. Gluck, David Serko, Jerome L.
Hanifin) for Plaintiff.
Robert D. McCallum, Jr., Assistant Attorney General, John J. Mahon,
Attorney-in-Charge, International Trade Field Office, Bruce N.
Stratvert, Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice; Chi S. Choy, Office of Assistant Chief
Counsel, International Trade Litigation, U.S. Customs Service, Of
Counsel, for Defendant.
OPINION
Pogue, Judge: This case is before the court after trial de novo.
Kanematsu USA Inc. (“Plaintiff”) challenges a decision of the
United States Customs Service (“Customs”) denying Plaintiff’s
protests filed in accordance with section 514 of the Tariff Act of
1930, as amended, 19 U.S.C. § 1514 (1994).1 At issue is the proper
1
Jurisdiction does not exist for Entry Number 335-0212028-1
because Protest Number 3001-93-100254 was not timely filed. See
Court No. 95-04-00405 Page 2
tariff classification under 19 U.S.C. § 1202 (1993), Harmonized
Tariff Schedule of the United States (“HTSUS”), of Plaintiff’s
importation of electromagnetic Power Take Off (“PTO”)
clutch/brakes.2
Background
Upon importation, Customs classified the subject merchandise
under subheading 8505.20.00. This subheading covers
“electromagnetic couplings, clutches, and brakes[,]” and resulted
in the assessment of a 3.9% ad valorem duty.3 Customs’
classification was based on its belief that the subject merchandise
contained both an electromagnetic clutch and an electromagnetic
Revised Pretrial Order, Schedule C, Uncontested Facts ¶ 1.
2
The PTO clutch/brake at issue was manufactured by Ogura.
The subject merchandise was imported during 1992 and 1993 and
liquidated in 1993. At all times the HTSUS for those years are
used.
3
Subheading 8505.20.00, HTSUS, in relevant part provides:
8505. Electromagnets; permanent magnets and
articles intended to become permanent magnets
after magnetization; electromagnetic or
permanent magnet chucks, clamps and similar
holding devices; electromagnetic couplings,
clutches and brakes; electromagnetic lifting
heads; parts thereof:
* * *
8505.20.00. Electromagnetic couplings, clutches and
brakes
Court No. 95-04-00405 Page 3
brake.4
Plaintiff claims, however, that the subject merchandise is
classifiable as “parts of tractors suitable for agricultural use,”
under subheading 8708.99.10, where it is eligible for duty-free
treatment.5 Plaintiff argues that the subject merchandise is a
“unique device,” containing two components, an electromagnetic
clutch and a mechanical brake. According to Plaintiff, the brake
4
In the HQ Ruling Letter and summary judgment papers,
Customs appeared to argue that neither the clutch nor the brake
performed the principal function. See HQ 957778 (July 10, 1995).
Customs classified the subject merchandise in accordance with
Note 3 to Section XVI which states that “composite machines . . .
are to be classified as if consisting only of that component or
as being that machine which performs the principal function,”
unless the context otherwise requires. Section XVI, Note 3,
HTSUS. Customs previously argued that the PTO clutch/brake does
otherwise require, because neither the electric clutch nor the
electric brake perform the principal functions. Customs further
argued that subheading 8505.20.00 provides eo nomine for both
aspects of the subject merchandise. In its pretrial papers and
at trial, however, Customs changed its argument, claiming that if
the court found that the clutch was electric but the brake was
mechanical, it should still be classified in subheading 8505
because the electric clutch performed the subject merchandise’s
essential function. See Def.’s Pre-Trial Stmt. at 2-3.
5
Subheading 8708.99.10 provides:
8708. Parts and accessories of the motor vehicles
of headings 8701 to 8705:
* * *
8708.99. Other:
* * *
8708.99.10. Parts of tractors suitable for
agricultural use
Based on Plaintiff’s argument, the PTO clutch/brake would be
classified under 8708.99.10 because it is a part of a subheading
8701.90.10.01 power take off tractor.
Court No. 95-04-00405 Page 4
portion of the subject merchandise is specifically excluded from
chapter 85 by Explanatory Note 85.056 and, following a GRI 1
analysis, the PTO clutch/brake is classifiable in Chapter 87.7
Uncontested Facts
Both Plaintiff and Customs agree that the merchandise at issue
is a good, known as the PTO clutch/brake. See Revised Pretrial
Order, Schedule C, Uncontested Facts ¶ 3. The PTO clutch/brake is
principally used in lawn and garden tractors. Id. ¶ 7. It is not,
however, used in propulsion of the tractor. Id. ¶ 4. Rather,
power is transferred through the subject merchandise from the
6
Explanatory Note 85.05(5) contains a general discussion of
electro-magnetic brakes:
These generally consist of shoes which, under the
influence of electro-magnets, act on the rim of a
wheel or on the rail. Others are based on the
principle of electro-magnetic induction, a soft steel
disc mounted on the shaft being braked by the action
of eddy currents induced in it by electro-magnets.
The heading does not, however, cover mechanical
hydraulic or pneumatic brakes controlled by electro-
magnetic devices.
Harmonized Commodity Description and Coding System, Explanatory
Notes (1st ed. 1986) at 85.05(5)(“Explanatory Notes”).
While the Explanatory Notes “do not constitute controlling
legislative history,” Lonza, Inc. v. United States, 46 F.3d
1098, 1109 (Fed. Cir. 1995), they are instructive, offering
“guidance in interpreting HTS[US] subheadings.” Id.
7
General Rule of Interpretation 1 provides for
classification “according to the terms of the headings and any
relative section or chapter notes . . . .” GRI 1, HTSUS.
Court No. 95-04-00405 Page 5
engine to operate various instruments attached to the tractor.8
See id. ¶ 5. The clutch and brake alternate in performing their
functions: when the brake is engaged, the clutch must be disengaged
and when the clutch is engaged, the brake must be disengaged. See
id. ¶ 16.9
The parties also agree as to the general mechanics of the PTO
clutch/brake. The brake is engaged as a result of internal spring
forces. In the absence of an electrical current, the pre-loaded
leaf springs pull the armature away from the rotor and into contact
with the brake plate. See id. ¶ 16(C). Once the electrical
current flows to the coil, the magnetic field attracts the armature
to the rotor. See id. ¶ 16(B). The armature rotates with the
rotor and torque is transferred from the armature to the pulley,
from the pulley to the belt and ultimately to the implement
attached to the tractor. See id.
8
Examples of implements that can be attached to the tractor
include a rotary tiller, plow, disc harrow, spring tooth
cultivator, sprayers, rear rake, fertilizer spreader, spiker,
trencher, snowblowers, stump grinders and carts. See Ogura’s
General Purpose & PTO Clutch/Brake Brochure, Pl.’s Ex. 13 at 7;
see also Dixon ZTR Riding Mower Catalog, Pl.’s Ex. 3; Bolens
Garden Tractors Catalog, Pl.’s Ex. 5; The Steiner Catalog, Pl.’s
Ex. 7; Lawn-Boy Tractors, Riders and Tillers Catalog, Pl.’s Ex.
9; John Deere Lawn and Garden Tractor Catalog, Pl.’s Ex. 10.
9
Plaintiff, at trial, argued that the PTO clutch/brake only
operated in an engaged/engaged state – either the clutch was
engaged or the brake was engaged – as opposed to alternating
between engaged and disengaged states. Regardless either the
clutch or brake is always engaged and neither the clutch nor the
brake is engaged at the same time.
Court No. 95-04-00405 Page 6
The parties disagree, however, on whether the brake is a
mechanical brake and whether one of the components of the PTO
clutch/brake performs a principal function.
Standard of Review
The court’s jurisdiction is predicated on 28 U.S.C. §
1581(a)(1994). “The Court must determine ‘whether the government’s
classification is correct, both independently and in comparison
with the importer’s alternative.’” H.I.M./Fathom, Inc. v. United
States, 21 CIT 776, 778, 981 F. Supp. 610, 613 (1997)(quoting
Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed. Cir.
1984)). Following the Supreme Court’s holding in Mead Corp. v.
United States, 533 U.S. 218 (2001), the Court does not afford the
deference articulated in Chevron U.S.A. Inc. v. Natural Resources
Defense Council, 467 U.S. 837, 842-43 (1984), to Customs’ standard
classification rulings such as that at issue here.
The analysis of a Custom’s classification involves a two-step
process. First, the court must ascertain “the proper meaning of
specific terms in the tariff provision.” David W. Shenk & Co. v.
United States, 21 CIT 284, 286, 960 F. Supp. 363, 3654 (1997).
This aspect of Customs’ classification is subject to de novo
review, pursuant to 28 U.S.C. § 2640 (1994), because it is a
question of law. See Russell Stadelman & Co. v. United States, 23
CIT __, __, 83 F. Supp. 2d 1356, 1357 (1999), aff’d, 242 F.3d 1044Court No. 95-04-00405 Page 7
(Fed. Cir. 2001). Then the court determines whether the goods come
“within the description of such terms as properly construed.”
Shenk, 21 CIT at 286, 960 F. Supp. at 365. This is a question of
fact.
The trial beings with a presumption of correctness. See,
e.g., Salant Corp. v. United States, 24 CIT __, __, 86 F. Supp. 2d
1301, 1303 (2000)(quoting Universal Elecs. Inc. v. United States,
112 F.3d 488, 492 (Fed. Cir. 1997)(holding that “although the
presumption of correctness applies to the ultimate classification
decision . . . the presumption carries no force as to questions of
law”)). To overcome the presumption, the party challenging the
classification must produce a preponderance of evidence on the
disputed factual question. See Universal Elecs. Inc., 112 F.3d at
492.
Findings of Fact and Conclusions of Law
The HTSUS consists of (A) the General Notes; (B) the General
Rules of Interpretation; (C) the Additional U.S. Rules of
Interpretation; (D) sections I to XXII, inclusive (encompassing
chapters 1 to 99, and including all section and chapter notes,
article provisions, and tariff and other treatment accorded
thereto); and (E) the Chemical Appendix.
The General Rules of Interpretation (“GRI”) of the HTSUS
govern the proper classification of merchandise. See Orlando Food
Court No. 95-04-00405 Page 8
Corp. v. United States, 140 F.3d 1437, 1439 (Fed. Cir. 1998). Both
parties argue that classification of the PTO clutch/brake should be
made in accordance with GRI 1. Pursuant to GRI 1, “classification
shall be determined according to the terms of the headings and any
relative section or chapter notes.” GRI 1, HTSUS; see also Orlando
Foods, 140 F.3d at 1440.
Plaintiff claims that the entire unit, the PTO clutch/brake,
is classified as other parts of tractors. Customs claims that GRI
1 directs it to Section XVI, Note 3. According to this note
composite goods are classified in accordance with their principal
function, unless the circumstances otherwise require. In this case
Customs claims that the Court could make one of two findings.
According to Customs, the Court could either determine that (1)
both components of the PTO clutch/brake are classifiable in the
same subheading in Chapter 85, making a principal function analysis
unnecessary, or (2) the brake is classifiable in Chapter 84 and the
clutch in Chapter 85 with the clutch performing the principal
function resulting in the PTO clutch/brake unit’s classification in
Chapter 85.
I. Type of Brake
Although the parties agree on the general mechanics of the PTO
clutch/brake, they do not agree on the type of brake used in the
subject merchandise or how to define it. The parties also disagree
Court No. 95-04-00405 Page 9
on the mechanics of spring-set or fail-safe brakes and whether the
brake at issue can be described as spring-set or fail-safe.10
Whether the brake at issue can be considered a spring-set brake
helps determine how it is classified.
According to Plaintiff, the brake portion of the PTO
clutch/brake is not a fail-safe brake, and this is demonstrated by
its description of fail-safe brakes as well as the testimony and
evidence introduced at trial. Plaintiff describes the operation of
an electromagnetic spring-applied fail-safe brake as follows:
A. When no current is applied to an
electromagnetic spring set brake, a
series of compression coil springs push
against the armature.
B. The force against the armature produced
by the series of coil springs clamp [sic]
the friction disk or rotor between the
pressure plate and the armature.
C. The frictional clamping force is
transferred to the hub which is mounted
to a shaft.
D. When the brake is required to release,
voltage/current is applied to the field
coil creating a magnetic field.
E. The magnetic field pulls in the armature
against the compression coil springs
creating an air gap between the armature,
the friction disk or rotor and the
pressure plate. This allows the friction
disk or rotor to turn freely with the
shaft.
10
Spring-set, fail-safe, and spring-applied are used
interchangeably throughout this opinion. Although fail-safe is a
term that is no longer in favor in the industry because of the
implications for a manufacturer’s liability, the term was
frequently used by the trial witnesses and in several of the
exhibits presented at trial.
Court No. 95-04-00405 Page 10
Revised Pretrial Order, Schedule C-1, Contested Facts ¶ 19.
Plaintiff contends that the brake portion of the subject
merchandise does not operate in this manner.
This description, however, is similar to the brake portion of
the subject merchandise. Scott Fuller,11 one of Customs’ witnesses,
testified at trial that the fail-safe brake described by Plaintiff
is “analogous” to the brake portion of the PTO clutch/brake. See
Trial Tr. at 353 (“[W]hile some of the terms, some of the
components are called different names, between the [fail-safe brake
and the brake at issue] they’re very similar in operation.”); see
also Trial Tr. at 300-08 (testimony of Sekella). It appears that
the only difference between fail-safe brakes as described by the
Plaintiff and the brake at issue are the number of clamps. Fuller
explained that even though Step B describes a “clamping on two
sides” and the brake portion of the subject merchandise is only
clamped on one side, Trial Tr. at 351-52, these differences are
merely attributable to the fact that the subject merchandise is a
combination clutch/brake and not a stand alone brake. See id. at
394 (testifying that “this one only happens to have one set of
action friction surfaces, but it’s common in clutch and brake
11
Scott Fuller works for Warner Electric Co., Ogura’s
largest competitor for PTO clutch/brakes. See Trial Tr. at 31
(stating that Ogura and Warner “make up a majority of the
market”). Fuller works in the field of clutches and brakes,
specifically in the area of design and application of clutches
and brakes for the outdoor power equipment industry. He was
admitted as an expert witness.
Court No. 95-04-00405 Page 11
design. You can add multiple friction surfaces to an electric
clutch or an electric brake, and you – they’re still called
‘electric clutches or brakes.’”). As a result of the combination
of the two components some of the elements needed to be modified in
order for the clutch and brake to properly alternate in their
engagement.
T. Curran Sekella,12 another witness for Customs, agreed with
Fuller’s comparison of electric spring-engaged brakes and the brake
portion of the PTO clutch/brake, focusing on a fail-safe brake
manufactured by Ogura. See Trial Tr. at 298-302. Similar to
Plaintiff’s fail-safe brake description, the Ogura fail-safe brake
uses a disk that has friction on both sides, while the brake at
issue uses a single surface. According to Sekella, “torque is
generated in the same manner. [T]he brake is actuated, in this case
released, through the same rules of physics that define generating
a magnetic force.” Id. at 302; see also Def.’s Pre-Trial Stmt. at
Ex. 1, Comparison of an Electric Spring-Engaged Brake and the
Electric Clutch/Brake “Brake”; Herbert S. Peterson, et. al., “Sure-
fire Stopping Power with Failsafe Brakes”, Machine Design, Apr. 26,
1979, Def.’s Ex. V2 at 171 (“The most common friction element in
fail-safe brakes today is the disc, which may be used singly or in
12
Sekella is a mechanical engineer and the president of a
small clutch company. His experience included design and
development, manufacturing, and management of the clutch and
brake business. He was admitted as an expert witness in the area
of clutches and brakes.
Court No. 95-04-00405 Page 12
multiples.”)(“Def.’s Ex. V2").
Although Plaintiff claims that it is not possible to use a
fail-safe brake in a combination clutch/brake, the Court is not
persuaded by Plaintiff’s testimony. Gary Partridge,13 one of
Plaintiff’s expert witnesses, testified that fail-safe brakes could
only be used for “low cycle engagement,” see Trial Tr. at 211, and
the implements attached to the PTO clutch/brake require high cycle
engagement. Partridge further argued that, although one
manufacturer tried to incorporate a fail-safe brake in a
combination clutch/brake, the attempt was unsuccessful because the
brake “stopped the rotating cutting blades so abruptly that the
blades were coming loose from the tractor.” Pl.’s Draft Findings
of Fact and Conclusions of Law at 21; see also Trial Tr. at 211-12.
Partridge, as a result, concluded that “fail-safe brakes really
don’t have any application in outdoor power equipment.” Trial Tr.
at 211-12.
Customs, however, introduced articles and testimony refuting
this suggestion. One article not only describes a brake that is
similar to the one at issue but also calls it “the most common type
of fail-safe brake.” Def.’s Ex. V2 at 170. This type of fail-safe
13
Gary Partridge worked for a number of major companies in
the lawn and garden business before starting his own company for
manufacturing commercial mowers. Since 1990 he has worked as a
product design consultant for companies in this industry.
Partridge was designated as an expert in the outdoor power
equipment industry and on clutches, brakes, and clutch/brake
combinations.
Court No. 95-04-00405 Page 13
brake is an “energy absorbing or dynamic brake that decelerates a
rotating shaft or other machine part until it comes safely to
rest.” Id. Furthermore, “[b]ecause of OSHA restrictions, fail-
safe brakes are being used increasingly on consumer-operated power
equipment such as garden tractors, lawn mowers, and golf carts.”
Id. at 171. Such consumer equipment is precisely the type of
equipment that utilizes the PTO clutch/brakes at issue.
The persuasive power of Plaintiff’s evidence was further
undermined by the introduction of conflicting and misleading
statements. Although Plaintiff argued that the brake at issue was
not a fail-safe brake, it did not introduce evidence to explain how
the brake differed from fail-safe brakes found in Plaintiff’s own
exhibits. See, e.g., George Riesselmann, “Applying Fail-Safe
Brakes to Stop and Hold”, PT Design, Feb. 1996, Pl.’s Ex. 54 at 31;
Robert L. Mott, Machine Elements in Mechanical Design (3d ed.
1999), Pl.’s Ex. 45 at 759. Machine Elements in Mechanical Design,
one of Plaintiff’s exhibits, defines a fail-safe brake as a “brake
that is spring-applied automatically in the absence of an overt
action . . . [w]hen the power goes off, the brake goes on.” See
Pl.’s Ex. 45 at 759; see also Trial Tr. at 286. Machine Elements
in Mechanical Design continued, explaining that the springs in a
fail-safe brake apply the brake “if power fails, or if air pressure
or hydraulic pressure is lost . . . . [and this] concept may also
be used to engage or disengage a clutch.” Id. at 761. Here, the
Court No. 95-04-00405 Page 14
brake portion of the subject merchandise is applied in the absence
of power and is also used to disengage the clutch. See, e.g.,
Trial Tr. at 286-87.
Fail-safe brakes are brakes “engaged by internal stored energy
in springs, [and] disengaged by externally-supplied electric energy
which is converted into an electromagnetic field to release the
brake.” Def.’s Proposed Findings of Fact and Conclusions of Law at
13; see also Trial Tr. at 353-54. Both electromagnetic spring-
applied fail-safe brakes and the brake portion of the clutch/brake
at issue function in the described manner, further demonstrating
that the brake is a type of fail-safe brake.
II. Actuation Method
Plaintiff also argues that even if the brake were considered
a fail-safe brake, it is still classifiable as a mechanical rather
than electric brake.
Brakes and clutches are organized by both their methods of
engagement14 and actuation.15 See Joseph L. Foszcz, “Selection
14
Engagement is defined as “the act or state of
interlocking.” The Random House Dictionary of the English
Language 644 (2d ed. 1987).
15
The Random House Dictionary defines “actuate” as “to put
into action; start a process; turn on: to actuate a machine.”
Random House Dictionary 21. The American Heritage Dictionary
also defines actuate as “to put into motion or action; to move
to action.” American Heritage Dictionary of the English Language
18 (3d ed. 1996).
Court No. 95-04-00405 Page 15
Factors for Clutches and Brakes,” Plant Engineering, Oct. 1, 1999,
available at http://www.manufacturing.net/magazine/planteng;
Motion Systems Handbook, PT Design (1999), Def.’s Ex. Y at A125
(classifying brakes by both the “technique used to engage or stop
the load . . . and by the method used to actuate them”)(“Def.’s Ex.
Y”).16 Methods of engagement include friction, mechanical lock-up,
and electromagnetic. See Def.’s Ex. Y at A125. Actuation methods
include mechanical, electric, pneumatic and hydraulic. See id.
Plaintiff argues that the brake is mechanical for two reasons.
First, Plaintiff claims that the actuating mechanism of the brake
portion of the subject merchandise is the spring, a mechanical
device, and therefore the brake is a mechanical brake. Second,
Plaintiff contends that because the braking torque17 is a result of
friction, which is a mechanical function, the brake at issue is a
16
This is an annually published handbook by the trade
publication PT Design, an authoritative resource issued in the
field of clutches, brakes, gears, and couplings. See Trial Tr.
at 281.
17
Torque is defined as
the tendency of a force applied to an object to cause
the object to rotate about a given point; this tendency
expressed by the equation t = r x F, where t is the
torque, F is the vector of the force, and r is the
position vector from the point of origin to the point
of application of the force; this expression of force
acting in a rotational sense, used as a basic measure
of the propulsive effect of a powered wheel.
Academic Press Dictionary of Science and Technology, available
at http://www.harcourt.com/dictionary.
Court No. 95-04-00405 Page 16
mechanical brake. See Trial Tr. at 143.
Neither Customs nor the Court disagree with Plaintiff’s
description of the brake’s engagement force. See, e.g., Trial Tr.
at 146. In the case of the brake at issue the force used to hold
the load is friction. Specifically, the braking action is due to
friction generated by the mechanical engagement of the armature
with the brake plate. See Pretrial Order, Schedule C, Uncontested
Facts ¶ 16(C).
However, contrary to Plaintiff’s argument, the spring is not
the brake actuator. Brakes are arranged “so that [they are]
normally either released or applied, a spring usually forcing it
into the normal condition.” McGraw-Hill Encyclopedia of Engineering
(2d ed. 1992), Def.’s Ex. F at 105 (“Def.’s Ex. F”). The brake at
issue is arranged to be released after which it is then forced into
position by the spring. See Def.’s Ex. V2 at 171 (In fail-safe
brakes “[t]he engagement force element that applies pressure to the
friction elements and ‘sets’ the brake, usually consists of one or
more compression springs.”). The spring plays a role in the
engagement but it is not actuating the brake. Moreover, mechanical
actuation is generally defined as requiring hand or foot operated
linkages or cables, not the mere existence of a spring, see “Basics
of Design Engineering”, Machine Design, June 1993, Pl.’s Ex. 17 at
Court No. 95-04-00405 Page 17
34;18 Trial Tr. at 290-91, none of which are contained in the brake
at issue.
In the brake at issue, the actuation force - the force that
puts the brake into action, starts the process, and turns on the
brake - is the electromagnetic force that releases the brake and
allows the spring to operate. Generally, brakes are actuated by an
overt action. In the case of a spring-applied fail-safe brake,
however, the brake is applied automatically in the absence of overt
action. See Pl.’s Ex. 45 at 759, 761. In this context the
actuation method refers to the source of external energy utilized
for the brake operation. See Trial Tr. at 287-89; see also Def.’s
Ex. F at 105 (“A controllable external force then applies or
releases the brake.”). Here, that energy is the electric current
because the discontinuation of the electric current releases the
brake, putting it into action. Therefore, the Court finds that the
actuating mechanism, a necessary aspect of brake classification, is
electric.
Plaintiff further argues that electric friction brakes do not
exist and that only three types of electric brakes are recognized;
those that operate by way of hysteresis, eddy current, or magnetic
18
Machine Design is an authoritative trade journal and one
of the most widely circulated magazines in the design engineering
trade. Although the cited pages are from Pl.’s Ex. 17, Customs
also submitted different pages of the same article in Def.’s Ex.
D. The entire article will be referred to as “Basics in Design
Engineering” throughout this opinion.
Court No. 95-04-00405 Page 18
particle. See Trial Tr. at 164. According to Plaintiff, therefore,
the classification of a friction brake is necessarily mechanical.
But electric friction brakes do exist. See Basics of Design
Engineering at 96; Trial Tr. at 293-95. Such brakes use the
friction developed between two surfaces to engage or stop the load
but are actuated electrically. Furthermore, the only electrical
brake suitable for fully stopping a load is one “electrically
actuated but rely[ing] on mechanical friction for stopping action.”
Basics of Design Engineering at 96.
Moreover, the evidence presented at trial clearly demonstrates
that, contrary to Plaintiff’s claim, electric fail-safe brakes,
similar to the brake at issue, are made. See Warner Clutches,
Brakes and Controls Master Catalog, Def.’s Ex. H; Kebco Spring-set
Brakes Catalog, Def.’s Ex. I; Stearns Electromagnetic Clutches and
Brakes Catalog, Def.’s Ex. J; Hilliard Electric Brakes Catalog,
Def.’s Ex. K; Lenze GmbH & Co., Def.’s Ex. L; Carlyle Johnson
Brakes Catalog, Def.’s Ex. U (“Def.’s Ex. U”).19 Customs introduced
into evidence several manufacturer catalogs that illustrate spring-
19
At trial Francis Flemming, one of Plaintiff’s witnesses,
agreed that electric brakes engaged by springs exist. Flemming
stated that such brakes are referred to as “spring-applied,”
“spring-set,” or “fail-safe” brakes. Trial Tr. at 100-01. When
further questioned, however, Flemming appeared to recant this
testimony, responding that “those are brakes that are applied
mechanically.” Id. at 101-02. Still Flemming agreed that such
brakes would be under “an electric brake or electromagnetic brake
heading, but they’re always called out as ‘fail-safe,’ ‘spring-
set,’ [or] ‘power off.’” Id. at 102.
Court No. 95-04-00405 Page 19
set brakes. When these catalogs mention brakes that operate like
the brake at issue, the brakes are always referred to as electric
or electromagnetic. For example, the index for the catalog of
German supplier Ortlinghaus, specifically lists “mechanically
actuated”, “electromagnetically actuated”, etc. See Ortlinghaus
Clutch Plates, Clutches and Brakes Catalog, Def.’s Ex. T. Under
the category for electromagnetically actuated brakes are sub-
categories, including one for spring-applied brakes. See id.;
Trial Tr. at 307-08. The catalog for Carlyle Johnson is another
such example. It lists two types of electric brakes, energy-
applied and spring-applied. See Def.’s Ex. U; Trial Tr. at 308.
Furthermore, the description of actuation methods for mechanical
spring-applied brakes in the catalogs is different than that for
the brake at issue. The spring-applied mechanically actuated
brakes described in the catalogs have hand levers and manual touch
controls, see Trial Tr. at 306; see also Carlyle Johnson Brakes &
Clutches Catalog, Def.’s Ex. V, none of which are found in the
subject merchandise.
Ogura even manufactures a brake marketed as a fail-safe
electric brake. The description given of the operation of this
brake is similar to the brake at issue here. In Ogura’s fail-safe
electric brake, when “the field [is] de-energized the spring forces
the armature and friction disc against the stationary pressure
plate. [Then] when the field is energized the armature is attracted
Court No. 95-04-00405 Page 20
to the field, releasing the friction disc and hub to rotate.”
Ogura’s MNB Fail-safe Electric Brake Catalog, Def.’s Ex. W2.
Further, like the brake at issue, Ogura’s electric fail-safe brake
“is applied when electric power is off.” Id. Plaintiff claims
that the description of this brake as electric is incorrect,
arguing that such a brake should technically be referred to as
“electromagnetic or electro-mechanical.” Trial Tr. at 105.
Previously, however, the parties agreed that the terms electric and
electromagnetic are used interchangeably. See Revised Pretrial
Order, Schedule C, Uncontested Facts ¶ 9 (“Electric brake and
electromagnetic brake are synonymous terms.”). As a result, the
Court finds Plaintiff’s argument unpersuasive.
Plaintiff further argues that regardless of Customs’ catalog
exhibits, catalogs that refer to clutch/brake combinations like
those at issue call the brake portion mechanical. Plaintiff
admitted into evidence catalogs from Warner, Ogura’s only
competitor of PTO clutch/brake combinations, and a powerpoint
presentation on Ogura clutch/brakes used within the company.20 The
Warner catalog differentiates between the clutching operation of a
clutch-only from a clutch/brake combination, stating that “[t]he
20
Although the overhead presentation described the brake
portion of the subject merchandise as mechanical the presentation
was made after litigation had been commenced, greatly reducing
its credibility. Furthermore, it specifically refers to the
“braking torque” as mechanical, not the entire brake. See
Powerpoint Presentation “Ogura PTO Clutch/Brakes,” Pl.’s Ex. 42
at 12.
Court No. 95-04-00405 Page 21
difference is the absence of a mechanical brake.” Warner GT Clutch
Application Guide, Pl.’s Ex. 26 at 8. It further states that “the
mechanical brake in a clutch/brake assembly” is found in the
armature assembly. Id. at 7. When these catalogs, however, refer
to a “mechanical brake” they are actually only referring to a
portion of the brake assembly, the brake plate. See id. at 2 (“The
mechanical brake is a plate that fits against the back side of the
armature.”); Warner Power Take-Off Clutches Catalog, Pl.’s Ex. 27
at 7(“The mechanical brake is a plate that engages against the back
side of the armature.”); Trial Tr. at 346.
Customs does not disagree with Plaintiff that the brake plate
is mechanical. See Trial Tr. at 349-50. Rather, Customs argues
that it takes more than just the brake plate to accomplish the
braking function. See id. at 347-48. Even Plaintiff’s testimony
did not claim that the brake plate was synonymous with the brake.
See id. at 78. In order to function, the brake must include not
only the brake plate but also the armature, springs, studs, coil,
and rotor. See id. at 347.
The brake at issue is an electromagnetic fail-safe, spring-
set, or spring-applied brake. These spring-applied fail-safe
brakes are a sub-category of electromagnetic fail-safe brakes.
There are two methods of operating electric friction brakes; either
the electrical force applies the brake and a spring returns it to
disengagement when the current is removed or the electrical force
Court No. 95-04-00405 Page 22
is used to disengage the brake. See Standard Handbook of Machine
Design (Joseph E. Shigley & Charles R. Mischke eds., 1986), Pl.’s
Ex. 46, at 30. Here, the brake generates torque through a friction
surface but is still electrically actuating because the actuation
method is the application of the electric current, even though the
effect of the current is to release the brake. Id.(stating in the
case of fail-safe brakes the method of actuation “releases or holds
off the brake.”).21
Finally, the brakes are not excluded from Chapter 85 because
of the explanatory notes. The explanatory notes to 8505 help
define electromagnetic brakes. Although the definition does not
specifically include the type of brake at issue the list is not
exclusive as it merely includes what electromagnetic brakes
“generally consist of.” Explanatory Note 85.05(5).
Neither does the explanatory note specifically exclude the
brake. The explanatory notes explains that heading 8505 “does not,
however, cover mechanical [sic] hydraulic or pneumatic brakes
21
The categorization of railroad brakes is a good
illustration. See generally Def.’s Ex. F at 105. Railroad
brakes are released due to air and applied due to a spring force.
Even though they are applied by the mechanical spring they are
still considered and referred to as air brakes or pneumatic
brakes. See id.; see also Trial Tr. at 162 (testimony of
Plaintiff’s witness James Rice agreeing that “typically they may
be referred to as ‘air brakes’”). Plaintiff’s witness James Rice
maintained that railroad brakes are, without doubt, “mechanical
brakes,” Trial Tr. at 162, even though he also agreed that
dictionaries and encyclopedia’s refer to such brakes as air or
pneumatic brakes. Id. at 163-64.
Court No. 95-04-00405 Page 23
controlled by electro-magnetic devices.” Id. As previously
determined, the brake at issue is not a mechanical brake. Because
the brake is not a mechanical brake it cannot be a mechanical brake
controlled by an electromagnetic device. Furthermore, both
Plaintiff’s and Defendant’s witnesses at trial testified that the
brake was not controlled by an electromagnetic device. See Trial
Tr. at 182-83 (testimony of Plaintiff’s expert witness Rice), 210
(testimony of Plaintiff’s witness Partridge), 317-18 (testimony of
Defendant’s witness Sekella).
Therefore, the brake portion of the subject merchandise is
classifiable within subheading 8505 as an electromagnetic brake.
III. Classification of the Entire Clutch/Brake
The PTO clutch/brake consists of an electric clutch and an
electromagnetic brake. Plaintiff argues that even if the court
determines that the brake is an electromagnetic brake, the entire
PTO clutch/brake unit is classifiable under subheading 8543, HTSUS.
This subheading covers other “electrical machines and apparatus,
having individual functions, not specified or included elsewhere in
this chapter.” Subheading 8543, HTSUS.
Section XVI, Note 3, however, states that
[u]nless 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
Court No. 95-04-00405 Page 24
machine which performs the principal function.
Section XVI, Note 3, HTSUS. The PTO clutch/brake is a machine
within the meaning of section XVI. “For the purposes of [Section
XVI’s notes], the expression “machine” means any machine,
machinery, plant, equipment, apparatus or appliance cited in the
headings of chapter 84 or 85.” Section XVI, Note 5, HTSUS. The
PTO clutch/brake consists of two components, the clutch and the
brake, both of which are classifiable within subheading 8505.
Therefore, Section XVI, Note 5, HTSUS applies. At the very least
each component is an “apparatus.” An apparatus is “a compound
instrument designed to carry out a specific function.” McGraw-Hill
Dictionary of Scientific and Technical Terms 116 (5th ed. 1994).
Each component of the subject merchandise carries out a specific
function - the clutch performs a clutching function and the brake
performs a braking function.
Furthermore, the clutch and brake are “adapted for the purpose
of performing two . . . alternative functions.” Section XVI, Note
3, HTSUS. As a result, the PTO clutch/brake is a composite machine
composed of two machines. As both components are classifiable
within the same subheading, 8505, it is unnecessary to consider
which if any of the two machines performs the principal function.
Under any such analysis the resulting classification would remain
Court No. 95-04-00405 Page 25
subheading 8505.22
Because the PTO clutch/brake is classifiable within subheading
8505 it cannot be classified in subheading 8543, as argued by
Plaintiff. According to the Explanatory Notes for subheading 8543,
“[t]his heading covers all electrical appliances and apparatus, not
falling in any other heading of this Chapter, nor covered more
specifically by a heading of any other Chapter of the Nomenclature,
nor excluded by the operation of a Legal Note to Section XVI or to
this Chapter.” Explanatory Note 85.43. The PTO clutch/brake is
excluded from subheading 8543 because of Section XVI, Note 3, as
previously discussed. As a result, the PTO clutch/brake cannot be
classified under the 8543 subheading due to its “inclu[sion]
elsewhere in this chapter.” Subheading 8543, HTSUS.
22
The Court’s analysis makes it unnecessary to consider
testimony on the type of lawn and garden tractors PTO
clutch/brakes are attached to and the principal function of the
PTO clutch/brake.
Court No. 95-04-00405 Page 26
Conclusion
The court finds that both the clutch portion and the brake
portion of the subject merchandise are electric and classifiable in
subheading 8505. The court also holds that the PTO clutch/brake is
a composite machine in accordance with the section notes for
Chapter 85. Customs’ classification is, therefore, affirmed.
Donald C. Pogue
Judge
Dated: January 29, 2002
New York, New York