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ROACH APPLETON MANUFACTURING CO. v. UNITED STATES

January 27, 1967

ROACH APPLETON MANUFACTURING COMPANY, A DELAWARE CORPORATION, PLAINTIFF,
v.
UNITED STATES OF AMERICA, AND INTERSTATE COMMERCE COMMISSION, DEFENDANTS.



The opinion of the court was delivered by: Marovitz, District Judge.

MEMORANDUM OPINION

Petition for Review of Final Order of I.C.C.

This action is an appeal from a decision of the Interstate Commerce Commission. It is brought under 28 U.S.C. § 1336, and 5 U.S.C. § 1009, by Roach Appleton Manufacturing Company ("Roach"), to set aside and annul the decision and order of the Commission of October 18, 1965, which was entered by the Rates and Practices Review Board, in Docket No. 34550. The decision, with several changes, adopted the report and order of Hearing Examiner Luttrell, of May 24, 1965, in favor of defendants. On January 10, 1966, Division 2 of the Commission, acting as an Appellate Division, denied plaintiff's petitions for reconsideration and for further hearing and cross-examination. On February 8, 1966, the Commission denied plaintiff's petition for a finding that an issue of general transportation importance was involved in the proceeding. This appeal followed.

Subsequent to the filing of the complaint herein, the following parties were granted leave to intervene as defendants: National Motor Freight Traffic Association, Clemans Truck Line, Inc., ("Clemans"), Commercial Motor Freight Inc., of Indiana, Courier-Newson Express, Inc., and Tucker Freight Lines ("Tucker"). All of the intervening defendants were parties of record to the proceeding before the Commission.

Items 63160 and 63200, which are general classification descriptions apply to:

  "Switch Boxes, Conduit Outlet Boxes, or Junction
  Boxes or Cabinets, with or without fittings or
  covers; or Outlet Box Covers, other than outlet box
  plates; See Note Item 62682 (63160)
    Steel, NOI, in packages, also Steel Junction Boxes
  or Cabinets, loose." (63200)

Item 61057, a specific classification description applies to:

    "Boxes, Switch or Conduit Outlet Box Covers, other
  than outlet box plates, 14 gauge steel or thicker,
  plain primed or galvanized, outside measurement of
  boxes not exceeding 12 united inches (length, width,
  and depth added), with or without fittings or covers,
  see Note, Item 62682; — in packages" (emphasis
  added).

It is axiomatic that an article must be classified under a general description if it does not fall within a specific description. See American Lithographic Co. v. Lehigh Valley RR, 101 I.C.C. 100 (1925). Thus since Item 63200 applies to shipments of plaintiff's switch boxes, the higher rates were properly assessed unless these shipments can be brought within the requirements of Item 61057.*fn1

It is admitted by all parties that plaintiff's switch boxes comply with the requirements of Item 61057 in all specifications except one — that being the crucial issue of this case — whether plaintiff's switch boxes are made from 14 gauge steel within the meaning of Item 61057.

The steel used by plaintiff, has a decimal thickness of no less than .0710 inches, after allowing for the normal variations in thicknesses of sheets from middle to edge, variations resulting from rolling at the mills and from plaintiff's stamping processes. It was testified that plaintiff's steel runs from .070 to .074 inches, with a target thickness of .0710 inches.*fn2 The higher and lower thicknesses result from the variations referred to above.*fn3

The Commission concluded that plaintiff's boxes were not made of 14 gauge steel. It held that under the provisions of Rule 5, Sec. 16, and Footnote A to Sec. 16 of NMFC A-7, MF-I.C.C. 5, steel with a thickness of less than .0749 inches is not 14 gauge steel.

Rule 5, Sec. 16 provides, in pertinent part:

  "Unless otherwise provided, where reference is made
  to gauge, it means U.S. Standard Gauge shall be used
  for determining thickness of sheet or plate
  steel; * * * Where classification

  provisions are based on gauge and where only
  thickness is available, the table in Footnote A must
  be used to convert thickness to comparable gauge."

Footnote A provides, in part:

  "Gauge Number         Nominal Thickness in Decimals of an Inch
                        United States ...

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