Slip Op. 00 - 69
UNITED STATES COURT OF INTERNATIONAL TRADE
- - - - - - - - - - - - - - - - - - x
STARKEY LABORATORIES, INC., :
Plaintiff, :
v. : Court No. 91-02-00132
:
UNITED STATES,
:
Defendant.
:
- - - - - - - - - - - - - - - - - - x
Opinion & Order
[Defendant's motion for rehearing on classifica-
tion of hearing-aid elements granted, in part.]
Dated: June 19, 2000
Curtin & Steingart, P.A. (Ronald J. Rasley) for the plain-tiff.
David W. Ogden, Acting Assistant Attorney General; Joseph I.
Liebman, Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Barbara S. Williams); and Office of Assistant Chief Counsel,
U.S. Customs Service (Chi S. Choy), of counsel, for the defendant.
AQUILINO, Judge: The defendant has interposed a Mo-tion
for Rehearing, Modification, and/or Reconsideration of this court's
opinion and judgment herein, reported at 22 CIT ___, 6 F.Supp.2d 910
(1998), familiarity with which is presumed, and which will be re-
ferred to hereinafter as slip op. 98-44. That opinion concluded that
Court No. 91-02-00132 Page 2
various hearing-aid elements were proper-ly classifiable under item
870.67 of the Tariff Schedules of the United States ("TSUS") or
subheading 9817.00.9600 of the Harmonized Tariff Schedule of the
United States ("HTSUS"), depending upon their times of entry, and
were therefore free of duty as "articles specially designed or
adapted for the use or benefit of the handicapped".
I
A fact stipulated by the parties was that the "articles in
the protested entries are parts of hearing aids." 22 CIT at
and 6 F.Supp.2d at 911, para. 11. The crux of defendant's instant
motion is stated to be that, after submission of the papers in
support of the parties' cross-motions for summary judgment, which
slip op. 98-44 then addressed,
Presidential Proclamation 6821 . . . issued which ex-
pressly amended the language of subheading 9817.00.96 to
include "parts and accessories (except parts and accesso-
ries of braces and artificial limb prosthetics) that are
specially designed or adapted for use in the foregoing
articles." . . .
This explicit addition to . . . 9817.00.96, HTSUS, to
state that the provision now includes parts estab-lishes
that the provision did not originally cover parts of
articles for the handicapped, because if the provision
previously included parts, there would have been no need
for the amendment.
Defendant's Memorandum, p. 4 (citation omitted). In making this
motion, counsel do note for the record that they
had a continuing obligation to keep the Court informed of
material developments that might assist the Court in
Court No. 91-02-00132 Page 3
reaching the correct result. Customs apparently did not
connect the importance of the statutory change dis- cussed
in this motion to the pending litigation until the Court
issued its opinion; we regret this lapse in focus. We do
not know why Starkey also did not advise the Court of this
development.
Id. at 3, n. 1.
Court No. 91-02-00132 Page 4
A
The grant of a motion for rehearing made pursuant to CIT
Rule 59, which provides, inter alia, for the opening of judgments and
amending of conclusions of law in cases such as this, lies
within the sound discretion of the court. Kerr- McGee
Chem. Corp. v. United States, 14 CIT 582, 583
(1990); Union Camp Corp. v. United States, 21 CIT 371,
372, 963 F.Supp. 1212, 1213 (1997). The purpose of a
rehearing is not to relitigate a case. See BMT Commodity
Corp. v. United States, 11 CIT 854, 855, 674 F.Supp.
868, 869 (1987). Rather, a rehearing only serves to
rectify "a significant flaw in the conduct of the
original proceeding." W.J. Byrnes & Co. v. United
States, 68 Cust.Ct. 358, 358 (1972) (footnote omitted).
Importantly, the court will not disturb its prior deci-
sion unless it is "manifestly erroneous." United States
v. Gold Mountain Coffee, Ltd., 8 CIT 336, 337, 601 F.Supp.
212, 214 (quoting Quigley & Manard, Inc. v. United States,
61 C.C.P.A. 65, 496 F.2d 1214 (1974)). . . .
Volkswagen of America, Inc. v. United States, 22 CIT , , 4
F.Supp.2d 1259, 1261 (1998). See also NEC Corp. v. Dep't of Com-
merce, 24 CIT , , 86 F.Supp.2d 1281, 1282 (2000); Union Camp
Corp. v. United States, 21 CIT 371, 372, 963 F.Supp. 1212, 1213
(1997); Intercargo Ins. Co. v. United States, 20 CIT 951, 952, 936
F.Supp. 1049, 1050 (1996), aff'd, 129 F.3d 135 (Fed.Cir. 1997).
On its face, defendant's motion appears to raise an issue
of whether or not slip op. 98-44 contains a "significant flaw" or is
even "manifestly erroneous". Hence, the motion should be, and it
Court No. 91-02-00132 Page 5
hereby is, granted -- for careful consideration of defendant's above-
quoted proposition that the effect of Proclamation 6821 was to
establish that HTSUS subheading 9817.00.96 did not originally cover
parts of articles for the handicapped.
B
The starting point for such consideration is the Pres-
ident's Proclamation itself, which was published at 60 Fed.Reg.
47,663 et seq. (Sept. 13, 1995) sub nom. To Establish a Tariff-Rate
Quota on Certain Tobacco, Eliminate Tariffs on Certain Other Tobacco,
and for Other Purposes. It states in part:
6. Presidential Proclamation No. 6763 of December 23,
1994, implemented the Uruguay Round Agreements, including
Schedule XX, with respect to the United States and incor-
porated in the HTS tariff modifica-tions necessary and
appropriate to carry out the Uruguay Round Agreements.
Certain technical errors, including inadvertent omissions
and typographical errors, were made in that proclamation.
I have de-cided that, in order to reflect accurately the
in-tended tariff treatment provided for in the Uruguay
Round Agreements, it is necessary to modify certain provi-
sions of the HTS, as set forth in Annex II to this proc-
lamation.
60 Fed.Reg. at 47,664. Paragraph (12) of Section B to that Annex II
provides:
The superior text preceding subheading 9817.- 00.92
which reads "Articles specially designed or adapted for
the use or benefit of the blind or other physically or
mentally handicapped persons:" is de-leted and the text
"Articles specially designed or adapted for the use or
Court No. 91-02-00132 Page 6
benefit of the blind or other physically or mentally
handicapped persons; parts and accessories (except parts
and accessories of braces and artificial limb prosthet-
ics) that are specially designed or adapted for use in the
foregoing articles:" is inserted in lieu thereof.
Id. at 47,674.
Court No. 91-02-00132 Page 7
To the extent defendant's motion equates the authority of
the President under Article II of the Constitution with the legisla-
tive primacy of the Congress per Article I1, it asserts too much.
Indeed, as President Taft, writing for a unanimous Supreme Court
wearing his subsequent mantle of Chief Justice in the customs case
J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 410 (1928),
reiterated: "Congress could not delegate legislative power to the
President". He referred in his opinion to the earlier decision in
the customs case Marshall Field & Co. v. Clark, 143 U.S. 649, 692
(1892), wherein the Court had stated
[t]hat Congress cannot delegate legislative power to the
President is a principle universally recognized as vital
to the integrity and maintenance of the system of govern-
ment ordained by the Constitution[,]
1
Defendant's supporting memorandum states unequivocally, for
example, at page 4 that Proclamation 6821 "expressly amend- ed the
language of subheading 9817.00.96" and proceeds to refer to "a change
in the language of a statute" and at page 5 to "sub- sequently
enacted legislation includ[ing] language which did not appear in the
earlier act" and "executive . . . change in the language of the
statute", noting:
. . . [I]t was the Congress and the President's pre-
rogative alone . . . to decline to extend the priv- ilege
of duty-free entry to importers of parts of articles for
the handicapped. Balancing these types of conflicting
interests between importers and domes-tic manufacturers is
Congress' and the President's singular responsibility . .
..
Defendant's Memorandum, p. 6, n. 2.
Court No. 91-02-00132 Page 8
and also quoted from Wilmington & Zanesville R.R. v. Commission-ers,
1 Ohio St. 77, 88 (1852), to wit:
Court No. 91-02-00132 Page 9
The true distinction, therefore, is[] between the
delegation of power to make the law, which neces-sarily
involves a discretion as to what it shall be, and confer-
ring an authority or discretion as to its
execution, to be exercised under and in pursuance of the
law. The first cannot be done; to the latter no valid
objection can be made.
See 276 U.S. at 407, 410-12. See also 3 Antieau & Rich, Modern
Constitutional Law 442 (2d ed. 1997) ("purely legislative power
cannot be delegated by Congress to the President"), citing Panama
Refining Co. v. Ryan, 293 U.S. 388, 421 (1935).
On the other hand, if, as the defendant maintains, the
proclamation at bar is the equivalent of a statute, its counsel are
hard pressed to keep this court from reading and accepting at face
value the words chosen by the President, supra; namely, that 6821
was necessary merely to modify certain technical er-rors, including
inadvertent omissions and typographical errors, made in Presidential
Proclamation No. 6763 in implementing the Uruguay Round Agreements
and incorporating in the HTSUS tariff modifications necessary and
appropriate to carry out those agree- ments. Compare generally
Defendant's Memorandum, pp. 6-9, with id. at 8:
. . . While at first blush it appears that the "part"
clause fell within Proclamation 6821's notation that the
modifications were made to correct certain techni-cal
Court No. 91-02-00132 Page 10
errors, inadvertent omissions, and typographical errors in
Proclamation 6763, in reality the inclusion of the "parts"
language here was not designed to correct a technical
error, inadvertent omission, or typo-
Court No. 91-02-00132 Page 11
graphical error. The "technical error/inadvertent
omission/typographical error" clause referred sole- ly
to errors in Proclamation 6763, and Proclamation 6763 did
not discuss 9817.00.96 whatsoever.
Emphasis in original; footnote omitted.
While the language of 6763 supports this last represen-
tation, this court knows of no other way to redress an omission than
by adding desired words. Those added by paragraph (12) of Section B
to Annex II to Proclamation 6821 (and quoted above) are clear;
nowhere did the President even attempt to claim that the resultant
provision is anything more than correction of a technical error or
coverage of an inadvertent omission. Defend-ant's counsel are thus
left to attempt to rely on a canon of construction applicable to acts
of Congress, to wit, that a change in the language of a statute is
generally construed to reflect a change of legislative intent.2 Of
course,
canons of construction "are not in any true sense rules
of law. So far as they are valid, they are what Mr.
Justice Holmes called them, axioms of ex-perience."
Caterpillar Inc. v. United States, 20 CIT 1169, 1177, 941 F.Supp. 1241,
1248 (1996), quoting Justice Felix Frankfurter, Some Reflections on the
2
See Defendant's Memoradum, pp. 4-5. But see, e.g., NCNB Texas
Nat'l Bank v. Cowden, 895 F.2d 1488, 1500 (5th Cir. 1990) ("The
absence of dispositive legislative history in itself coun- sels
against a conclusion that Congress intended to change the law").
Court No. 91-02-00132 Page 12
Reading of Statutes 27 (1947). Nonetheless, the can- on which the
defendant posits has been applied from time to time by the Court of
International Trade3, although many decisions
might readily be cited where a change of language in a
later enactment different from that used in a form- er
one[] was not regarded as showing a change of in-tent of
the part of Congress. Andrews & Co. v. United States, 8
Ct.Cust.Appls. 68; Magee v. United States, 4
Ct.Cust.Appls. 443; United States v. Masson, 3 Ct.
Cust.Appls. 168; United States v. Wertheimer Bros., 2
Ct.Cust.Appls. 515.
In the Andrews & Co. case, supra, this court said:
. . . It is not every change in the terms of a
statute . . . that results in a change of its
general purpose. The rule is one of con-
struction merely in any case, but even as a
rule of construction it has its limitations and
qualifications.
* * *
In the enactment of a tariff law, if Congress uses
different language from that used by it in previous en-
actments, while treating the same subject matter, it is
the duty of those who are called upon to determine the
meaning of its provisions to proceed primarily[] upon the
theory that the change was not made by accident, but that
it was intentional, and that by making such a change in
expression Congress used the term in a dif-ferent sense
from that in which the former expression was used. . . .
This rule is, however, not absolute, and does not compel
the conclusion that a change in meaning was meant. It
merely indicates such intention. . . . The rule applies
where its application is not barred by more convincing
considerations, and does not apply where it would lead to
incongruity and confusion.
3
E.g., Schott Optical Glass, Inc. v. United States, 11 CIT 899,
678 F.Supp. 882 (1987), aff'd, 862 F.2d 866 (Fed.Cir. 1988).
Court No. 91-02-00132 Page 13
Stroheim & Romann v. United States, 13 Ct.Cust.Appls. 489, 492-93
(1926) (emphasis in original). Indeed,
"changes in statutory language need not ipso facto con-
stitute a change in meaning or effect." . . . [A] legisla-
tive body may amend statutory language "to make what was
intended all along even more unmistak-ably clear."
NCNB Texas Nat'l Bank v. Cowden, 895 F.2d 1488, 1500 (5th Cir. 1990),
quoting United States v. Montgomery County, Md., 761 F.2d 998, 1003
(4th Cir. 1985), and citing Phillips Petroleum Co. v. U.S. Envtl.
Protection Agency, 803 F.2d 545, 557-58 (10th Cir. 1986); Callejas v.
McMahon, 750 F.2d 729, 731 (9th Cir. 1984); Brown v. Marquette Sav. &
Loan Ass'n, 686 F.2d 608, 615 (7th Cir. 1982); and United States v.
Tapert, 625 F.2d 111, 121 (6th Cir.), cert. denied sub nom.
Freelander v. United States, 449 U.S. 952 (1980).
One "well recognized indication of legislative intent to
clarify, rather than change, existing law is doubt or ambiguity
surrounding a statute." 2B Sutherland Statutory Construction §49.11
(5th ed. 1992) (internal quotation and footnote omitted). As noted
by this court in slip op. 98-44, 22 CIT at and 6 F.-Supp.2d at
913, n. 4, and now conceded by the defendant, Customs apparently has
had such doubt. When the Service first addressed the classification
of parts for hearing aids, it concluded (in Headquarters Ruling
Court No. 91-02-00132 Page 14
Letter 807732 (July 25, 1984)) that they were entitled to duty-free
entry under TSUS item 960.154 as articles specially designed for use
by the handicapped. Customs thereafter revisited the issue and
reached a contrary conclusion in its Ruling Letter 087559 (Oct. 9,
1990) even though the statutory language remained virtually un-
changed. Compare Slip Op. 98-44, n. 4, ibid., with Defendant's
Memorandum, p. 3, n. 1, supra ("Customs apparently did not connect
the importance of the stat- utory change discussed in this motion to
the pending litigation until the Court issued its opinion").
II
Be the administrative uncertainty as it has been, this
court continues to have the duty "to find the correct result[] by
whatever procedure is best suited to the case at hand." Jarvis Clark
Co. v. United States, 733 F.2d 873, 878, reh'g denied, 739 F.2d 628
(Fed.Cir. 1984)(emphasis in original); Gen. Elec. Co. - Medical
Systems Group v. United States, 24 CIT , , 86 F.-Supp.2d 1291,
1295 (2000), appeal docketed, No. 00-1263 (Fed.Cir. March 2, 2000).
Here, that procedure, as stated above, raises the issue of whether or
not slip op. 98-44 contains a "significant flaw" or is even "mani-
4
The parties stipulated that this item was identical to TSUS
item 870.67 and HTSUS subheading 9817.00.96. See Slip Op. 98-44,
22 CIT at and 6 F.Supp.2d at 911, para. 16.
Court No. 91-02-00132 Page 15
festly erroneous". In the light of the President's attempt to insure
that U.S. tariffs are in com-pliance with the country's international
agreements, and also of the foregoing discussion thereon, this court
cannot answer that issue in the affirmative on either count. Indeed,
if, as it has opined, "rehearing is a means to correct a miscarriage
of justice"5, the reconsideration afforded herein does not counsel
that the judgment in favor of the plaintiff entered pursuant to slip
op. 98-44 be set aside, and vacation thereof is therefore hereby
denied.
So ordered.
Dated: New York, New York
June 19, 2000
______________________________
Judge
5
Nat'l Corn Growers Ass'n v. Baker, 9 CIT 571, 584 (1985).