
    (C. D. 1960)
    Rosenthal Bercow Co., Inc. H. A. Gogarty, Inc. v. United States
    
      United States Customs Court, First Division
    (Decided January 29, 1958)
    
      Barnes, Richardson & Colburn (Joseph Schwartz of counsel) for the plaintiffs.
    
      George Cochran Doub, Assistant Attorney General (Murray Sklaroff, trial attorney), for the defendant.
    Before .Oliver, Mollison, and Wilson, Judges
   Wilson, Judge:

The importation under consideration, invoiced as “High Test Bleaching Powder 70% granular,” was classified under paragraph 5 of the Tariff Act of 1930, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, T. D. 52739, as a chemical compound, not specially provided for, dutiable at 12% per centum ad valorem. The plaintiffs claim the product properly assessable at three-tenths of 1 cent per pound under paragraph 14 of the Tariff Act of 1930 as bleaching powder. Two protests, to wit, 263469-K and 276813-K, were consolidated for trial.

The tariff statutes here involved, so far as applicable, are as follows:

Paragraph 5, Tariff Act of 1930, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, T. D. 52739:

All chemical elements, all chemical salts and compounds, * * * all the foregoing obtained naturally or artificially and not specially
provided for * * *_ 12%% ad val.
Paragraph 14, Tariff Act of 1930:
Par. 14. Bleaching powder or chlorinated lime, three-tenths of 1 cent per pound.

Seven witnesses were called in this case, two by the plaintiffs and five by the Government. In addition to the testimony of the witnesses, the court has before it three exhibits. Plaintiffs’ exhibit 1 consists of a grayish-white granulated substance, admitted by the parties to be representative of the importation, properly designated calcium hypochlorite. Defendant’s collective exhibit Á is composed of two separate circulars issued by one of the plaintiffs, Rosenthal Bercow Co., Inc., to advertise the imported product. Defendant’s exhibit B contains certain Federal specifications, designated by the numbers O-C-114, which set forth certain Government standards for calcium hypochlorite and chlorinated lime.

The plaintiffs’ evidence may be fairly condensed to the following essential points: Merchandise similar to plaintiffs’ exhibit 1 is sold on the market as bleaching powder and as calcium hypochlorite. This latter material is generally not defined as a chlorinated lime, but could be. It is not improper to use the terms “calcium hypochlorite” and “bleaching powder” synonymously. The first chlorine product sold as bleaching powder contained from 30-35 per centum available chlorine, while calcium hypochlorite contains up to 70 per centum chlorine. The uses of the two products are, for all practical purposes, the same, i. e., for water purification, for sanitizing, as a disinfectant, a germicide, and a bleaching agent, in each instance the effectiveness of the product depending upon the amount of available chlorine. Defendant’s collective exhibit A was admitted to be advertising material, prepared and issued by the plaintiff company,, and defendant’s exhibit B to be a pamphlet specifying United States Government standards for “calcium hypochlorite” and for “chlorinated lime.” The chemical symbol for calcium hypochlorite is Ca(OCl)2.

In substance, the defendant’s witnesses testified as follows: The product under consideration, calcium hypochlorite, Ca(OCl)2, is used as a bleaching agent, but is not properly designated bleaching powder, since the latter term is properly limited in its application to a product containing 35-37 per centum available chlorine, which is the same as chlorinated lime. Calcium hypochlorite is not sold on the market as bleaching powder. The uses of the material known as calcium hypochlorite, offered on the market as such, and as H. T. H., and “Pittchlor” and “Perchloron” (trade names), and 35-37 per centum bleaching powder, also known as chlorinated lime, are substantially the same. The commercial value of any chlorine bleaching agent “depends on the amount of available chlorine.” Calcium hypochlo-rite may be said to compete with bleaching powder, known as chlorinated lime. Calcium hypochlorite was produced in the United States and sold as H. T. H. prior to the enactment of the Tariff Act of 1930. There are impurities in calcium hypochlorite, though it contains 70 per centum available chlorine. Different processes are followed in manufacturing bleaching powder and calcium hypochlorite. The latter, it was said, is a more stable material than the former.

From the testimony as a whole, it is clear that the imported product is a bleaching powder. That much is conceded by the Government in its brief. However, the defendant contends that, although the substance here involved is a bleaching powder it is not the bleaching powder contemplated by paragraph 14 of the Tariff Act of 1930. The defendant further argues that only that bleaching powder which is also known as chlorinated lime comes properly within the meaning of the term “bleaching powder,” as used in paragraph 14 of the Tariff Act of 1930. In other words, the heart of the Government’s contention is that the terms “chlorinated lime” and “bleaching powder,” as used in paragraph 14, are synonymous, and that plaintiffs have not discharged the burden of establishing that the calcium hypochlorite under consideration is chlorinated lime. On the other hand, the plaintiffs take the position that the record clearly shows that the imported merchandise is bleaching powder (a high-test bleaching powder), which for all practical purposes is competitive with, and is used in substantially the same manner as, the so-called standard bleaching powder with 35-37 per centum available chlorine; that the evidence shows that the commercial value of bleaching powder containing chlorine is determined by the amount of chlorine released or available when the product is used; and that, even though it should be found that the calcium hypochlorite involved herein is not properly designated as chlorinated lime, yet, as a bleaching powder, it is more specifically provided for under the provisions of paragraph 14 of the Tariff Act of 1930 than it is under the terms of paragraph 5 of the said act.

From the testimony of the defendant’s witnesses, it appears that what is known as calcium hypochlorite, identified by the chemical symbol Ca(OCl)2, containing more than 37 per centum available chlorine, was available as a commercial article in the United States prior to the enactment of the Tariff. Act of 1930. This conclusion is borne out by reference to the Summary of Tariff Information, 1929, page 93:

PARAGRAPH 14
ACT OP 1922 REVISION OF 1929
Pab. 14. Bleaching powder or chlorinated lime, three-tenths of 1 cent per pound.
BLEACHING POWDER
(Calcium hypochlorite)
Description and jises. — Bleaching powder, commonly known as bleach, chloride of lime, or chlorinated lime, is a white powder with a characteristic odor resembling that of chlorine. The fact that it can oxidize gives rise to its uses. A good grade contains about 75 per cent of soluble chlorinated lime and from 18 to 20 per cent of excess hydrated lime which stabilizes the bleach and maintains its keeping quality. Commercial standards require that bleaching powder have a chlorine content of 35 per cent, which is the measure of its effectiveness as a bleaching agent.
The largest use of bleaching powder is as a bleach for wood pulp paper stock and for vegetable fibers. Smaller quantities are used in power laundries both as a bleach and as a disinfectant. For hospital and household use, it is an effective disinfectant and a deodorizer. Domestic consumption in 1924 is estimated to have been as follows:
Per cent
Pulp and paper industry_ 65
Textile industry_ 15
Water purification plants_ 10
Laundries_ 7
Miscellaneous_ 3
The consumption in paper and textile industries has declined in recent years on account of competition from liquid chlorine.

In explanation of tbe foregoing statement, the Government asserts that, even though in the heading of the tariff commentary the product is referred to as “calcium hypochlorite,” it appears from the body of the quotation that the merchandise under consideration was a mixture of chemicals, since the statement is made that “75 per cent of soluble chlorinated lime and from 18 to 20 per cent of excess hydrated lime” are contained in the product referred to by the Tariff Commission; that the imported product now before us consists of a single chemical compound with a definite chemical structure; that the bleaching powder discussed in the Summary of Tariff Information had a chlorine content of 35 per centum, while the imported product contains 70 per centum. The Government, therefore, draws the conclusion that it was not the product, calcium hypochlorite, but the merchandise, bleaching powder, with 35 per centum available chlorine, which was actually meant in the 1929 Summary of Tariff Information. This position, however, seems untenable for several reasons. In the first place, there .was surely some reason for the use of the term “Calcium hypochlorite” as a subhead under the heading “BLEACHING POWDER” as used in the tariff summary. Furthermore, the defendant’s own testimony in this case shows that calcium hypo-chlorite contains impurities of about 30 per centum (R. 88). In addition to that, the most reasonable construction of the reference in the tariff summary quotation to bleaching powder with chlorine content of 35 per centum is that bleaching powder, to meet minimum standards, must have an available chlorine content of 35 per centum. Such an explanation makes the reference to 75 per centum of soluble chlorinated lime in the same paragraph more intelligible. It, therefore, appears to us that the most reasonable construction of the tariff summary quotation is that, in 1929, bleaching powder was referred to as calcium hypochlorite and as chlorinated lime; that the lowest grade of the product contained a minimum of 35 per centum available chlorine and' the best grade about 75 per centum, with an excess of hydrated lime.

These conclusions are in harmony with the common meaning of the terms as found in dictionaries, textbooks, and encyclopedias, as shown by the following quotations:

Webster’s New International Dictionary, second edition, unabridged (1956), page 286:

bleaching powder. A powder for bleaching; spec., a nearly white powder made by passing chlorine gas over slaked lime and used as a bleaching agent, disinfectant, and deodorant; — called also chloride of lime or chlorinated lime. It is believed to consist chiefly of calcium oxychloride CaOClu. [Italics for formula supplied.]

Funk & Wagnalls New Standard Dictionary of the English language, 1942, page 289:

bleaching, * * * b. — powder, n. A white or grayish-white powder with a slight odor of chlorin, apparently a mixture of calcium chlorid and calcium hyochlorite in loose combination, which when heated readily yields oxygen and chlorin. * * *

Chamber’s Technical Dictionary, revised edition (1953), page 96:

bleaching powder {Chem.). Commercial bleaching powder consists of calcium hydroxide saturated with chlorine. The commercial value depends on the amount of available chlorine.

The Condensed Chemical Dictionary, fourth edition, 1953 (Eose): Page 103:

bleaching powder (“chloride .of lime”; calx chlorinata; bleach; chlorinated lime). Approximately CaCl(ClO). 4H20.
Properties: White powder, strong chlorine odor; decomposes on melting. Decomposes in water and acids.
Derivation: By conducting chlorine into a box-like structure containing slaked lime spread upon perforated shelves.
Grades: 35-37% active chlorine; technical; * * *.
Uses: Textile bleaching and numerous bleaching applications; organic synthesis; deodorizer; disinfectant.
* * * * * :}: *
See also calcium hypochlorite.

Page 130:

calcium hypochlorite (calcium oxychloride) Ca(OCl)2.
Properties: White crystals; soluble in water; does not spoil on standing; is not hygroscopic; and is practically clear in water solution. It contains 70% available chlorine.
Uses: Laundry and textile bleach; germicide; deodorant.

See also bleaching powder.

The Condensed Chemical Dictionary, fifth edition, 1956 (Eose), page 162:

bleaching powder. Any powder used, in solution, for textile bleaching. Specifically, the term refers to chlorinated lime, which is an important industrial agent. Among other powders developed for household use are sodium per-borate, and dichlorodimethylhydantoin. See also calcium hypochlorite.

Chemicals of Commerce (Snell & Snell), 1952 edition, page 83:

Calcium hypochlorite, Ca(OCl)2, is slightly soluble in water, and gives an odor of free chlorine, because of hydrolysis. The theoretical compound competes with a double salt 3Ca(OCl)Cl.Ca(QH)2-5H20 sold as bleaching powder, chloride of lime, or chlorinated lime. The latter is the product resulting from passing chlorine gas over slaked lime in thin layers. The reaction is never complete and the aqueous solution of the product is always basic in reaction. Both are gradually decomposed in the air and are therefore handled in sealed drums or in small cans. In essence these •products merely furnish a means of handling chlorine, and are of value for their bleaching and disinfectant action. Calcium hypochlorite is evaluated at about 65-70 per cent available chlorine and bleaching powder at 35-37 per cent. Applications are in milk plants, textile bleaching, water sterilization, etc. Use of these calcium compounds has been declining for many years because of the development of methods for the direct handling and use of chlorine on the one hand, and the sale of chlorine bleach liquor, which is sodium hypo-chlorite, on the other. [Sentence italicized ours.]

Van Nostrand’s Scientific Encyclopedia, second edition, page 224:

Hypochlorite: Calcium hypochlorite, “H. T. H.” (High Test Hypochlorite) (CaOCU) white solid, emits a marked odor in air, contains 60%-65% “available chlorine” and sufficient calcium hydroxide to stabilize, formed by reaction of calcium hydroxide and chlorine and evaporating at low temperature. Used as bleaching agent for fabrics, as a disinfectant, for the preparation of dilute solution of sodium hypochlorite in laundering, and in the treatment of wounds; “chloride of lime,” “bleaching powder” (CaOCl2), white solid, contains 36%-38% “available chlorine.” * * *

The Merck Index, sixth edition, 1952:

Page 154: '

Bleaching Powder see Chlorinated Lime.

Page 187:

“Calcium Hypochlorite” see Chlorinated Lime. Calcium Hypochlorite see Perchloron.

Page 226:

Chlorinated Lime. Bleaching powder; “calcium hypochlorite,” improperly called “chloride of lime.” Composition somewhat variable; approx. Ca(ClO)2. CaCl2 with H20. Usually contains about 35% active chlorine.
White or grayish-white powder; strong odor of chlorine. On exposure to air it becomes moist and rapidly decomposes. Most of it dissolves in water or alcohol. * * *
Use: Bleaching of wood pulp, linen, cotton, straw, oils, soaps, and in laundering; oxidizer in calico printing to obtain white designs on a colored ground; destroying caterpillars; disinfecting drinking water, sewage, etc.; as a decon-taminant for mustard gas and similar substances. * * *

Page 731:

Perchloron. Calcium hypochlorite. Ca(OCl)2; mol. wt. 142.99. Ca 28.03%, CaO 39.22%, 0 22.38%, Cl 49.59%.
White, dry powder; chlorine odor. Powerful oxidizer. Soluble in water.
Use: As of chlorinated lime. [Italics ours.] Commercially available. [Italics quoted.]

The Dispensatory of The United States of America, 25th edition, Osol-Farrar, page 756-757:

CHLORINATED LIME. B. P. [The British Pharmacopoeia]
Calx Chlorinata
* * * * Hs * *
Chlorinated lime is an oxidyzing agent, its action being commonly attributed to the nascent oxygen formed by its decomposition in the presence of moisture.
Composition. — The formula of the principal constituent of chlorinated lime is commonly represented as Ca(OCl)Cl, corresponding to the substance sometimes referred to as calcium chloro-hypochlorite. Present also are varying amount s of calcium hydroxide and moisture. Solutions of bleaching powder, upon evaporation, or freezing, yield crystals of hydrated calcium hypochlorite, also small amounts of calcium chloride, calcium chlorate, calcium hydroxide and calcium carbonate.

Kingzett’s Chemical Encyclopaedia, sixth edition:

Page 113:

BLEACHING^POWDER — See Calcium (Hypochlorite).

Page 139:

CALCIUM

Bleaching-powder (“chloride of lime”) is manufactured on a large scale by the action of chlorine gas upon moist slaked lime (free from iron and magnesium) at not exceeding 40% C. and until the product contains about from 35 to 38 per cent, of chlorine, the interaction that takes place being represented by the equation Ca(0H)2+Cl2=Ca0Cl2+H20, although there is always an excess of lime left in the resulting product. A new special Italian make of bleaching-powder in both the hydrated and anhydrous crystalline forms is prepared by_ the action of chlorine gas at 40° C. upon finely divided hydrated lime suspended in carbon tetrachloride and named “Sielor.” * * *
A high test product containing 65 per cent, of available chlorine is obtained by adding pure slaked lime to a clear solution of bleaching-powder (5 to 6 per cent, available chlorine) and evaporation in vacuo at 40° C. * * * Bleaching-powder yields, by treatment with water, the normal hypochlorite, and from the solution, the crystallized hypochlorite can be obtained of 90 to 95 per cent, available chlorine by Kingzett’s process of evaporation in vacuo. * * *
*******

Encyclopaedia Britannica, volume 3, page 716:

Bleaching Powder. * * * Under the name “chloride of lime” bleaching powder will be familiar to many as a disinfectant in common use. It is manufactured by the direct action of chlorine gas upon slaked lime; and although its chemical constitution is still somewhat in dispute, its composition when pure is usually represented by formula CaOCl2. As manufactured it always contains a certain amount of chemically combined water and an excess of lime. * * *

Tbe Encyclopedia Americana, volume 4, 1953, page 74:

Bleaching Agents. One of the most extensively used bleaching agents is Bleaching Powder, derived by the direct action of chlorine upon slaked lime, and having in its pure state the chemical formula CaOClz. It is technically known as calcium hypochlorite, but is also called calcium oxychloride, chloride of lime, calx chlorinata, chlorinated lime and hypochlorite of lime. It is white in color and gives off a strong chlorine odor. As chloride of lime it is widely known and extensively used as a disinfectant. * * * [Italics supplied.]

Even though some of the testimony indicates that the methods of getting chlorine into lime in the manufacture of calcium hypochlorite are not the same as those followed to “store” chlorine in lime to produce ordinary bleaching powder, yet, the record discloses that when the two products are used neither becomes effective until calcium hypochlorite is created. The lime in both cases merely serves as a carrying medium for the chlorine, and, in both instances, the bleaching process results from the release of the chlorine. As a matter of fact, all the authorities indicate that 'the use of these bleaching powders is constantly decreasing, since improved methods have been evolved for delivering liquid chlorine in usable form.

There appears to be no legal precedent for our guidance in determining the question now before us. It is true that, on July 9, 1936, the Acting Commissioner of Customs made a ruling' on the classification of calcium hypochlorite containing not less than 62 per centum available chlorine (T. D. 48432). From this same memorandum, it appears that the product, calcium hypochlorite, undoubtedly was classified as bleaching powder prior to the date of the Commissioner's ruling, since the directive contains the language that “as this authorization will result in the assessment of duty at a higher rate than it has . been the practice to assess, the change should be made effective only as to such merchandise entered for consumption or withdrawn from warehouse after thirty days following the publication of this letter in the weekly Teeasuey DECISIONS.” The Commissioner’s letter (T. D. 48432), directed to the collector of customs at the port of New York, referred to the product as “high test bleach” or “superbleach” and to the fact that it had been classified under paragraph 14 of the Tariff Act of 1930. This supports our interpretation of the excerpt on Summary of Tariff Information (1929), supra. In directing a change of classification from paragraph 14 to paragraph 5 of the tariff act, the Commissioner apparently relied upon commercial designation, not involved in this case, and upon certain alleged rulings by the Food and Drug Administration, Department of Agriculture, holding that calcium hypochlorite is not bleaching powder “within the meaning of the Federal Caustic Poison Act of March 4, 1927.”

It is, of course, well established in law that this court is not controlled in its decisions by the rulings of governmental departments. In the case of United States v. Mercantil Distribuidora, S. A., Joseph H. Brown, 43 C. C. P. A. (Customs) 111, C. A. D. 617, on page 116, the court stated:

If this court were to be bound by the interpretation of the Bureau of Animal Industry as to the meaning of “cured,” we would, of course, have to find for the Government, and reverse the holding of the court below. However, the claim that the meaning of the regulation would be binding upon this court in determining tariff usage was correctly rejected by the court below, citing F. W. Myers & Co., Inc. v. United States, 29 C. C. P. A. (Customs) 30, C. A. D. 167, to the effect that a Department of Agriculture regulation does not bind this court in its determination of the meaning of words for tariff purposes. * * *

We do not think the record in this case or the ordinary meaning of the term “bleaching powder” supports the position taken by the Acting Commissioner of Customs, supra.

The plaintiffs cite the case of C. J. Tower & Sons v. United States, 24 C. C. P. A. (Customs) 332, T. D. 48769, in support of their position that under the provisions of paragraph 14 of the Tariff Act of 1930, the term “bleaching powder” is not necessarily synonymous with the words “chlorinated lime.” In the Tower case, supra, certain merchandise, consisting of aluminum oxide, invoiced as “Bauxite Ore Concentrates Grade 'H' Leached, Unground,” was held'—

* * * properly classifiable under paragraph 6, Tariff Act of 1930, as refined bauxite, rather than under the earthy or mineral substances paragraph, 214, as classified by the collector. The provision “Aluminum hydroxide or refined bauxite” is not limited simply to aluminum hydroxide. That was not the only form of refined bauxite known at the time of the passage of the Tariff Act of 1930. The product here involved was then known and is a form of refined bauxite, which differs from aluminum hydroxide only in that the latter contains water. With that exception aluminum hydroxide and aluminum oxide are, according to the testimony, one and the same thing. [Italics quoted.]

There appears to be some reason for taking the same position with reference to the terms “bleaching powder” and “chlorinated lime,” as used in paragraph 14. In any event, we are of the opinion that, for all practical purposes and according to the common understanding of the terms, the calcium hypochlorite here involved is included within the meaning of the words “bleaching powder” and must be held to be bleaching powder, as contemplated under the provisions of paragraph 14 of the Tariff Act of 1930, being-more specifically provided for under said paragraph as bleaching powder than under paragraph 5 as a chemical compound, not specially provided for.

The protests are, therefore, sustained, and judgment will be entered accordingly.  