                         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 1044
Court 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
