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The set—which is in chief value of plastic and used to conduct liquids—consists of approximately 70 inches of plastic tubing, a connector, a protector for the connector, a needle adapter, a protector for the needle adapter, a drip chamber, a Flashball injection site, and a Flo-Trol clamp. The interior fluid path of the set is sterile as imported.
On the face of the box in which the set is imported and marketed appears the following:
Caution: Federal (U.S.A.) law restricts this device to sale by or on order of a physician. The set is chiefly used in the intravenous administration of blood or other medical solutions to patients and operates in the following manner: The connector is inserted into the outlet of a solution container which is suspended. The drip chamber is half filled, whereupon the Flashball injection site over the needle adapter is grasped and its protector removed. A needle is then attached to the needle adapter and air is removed from the set. The Flo-Trol clamp is then closed and venipuncture performed. After this, the Flashball is squeezed and released and, if the needle is properly inserted into the vein, the blood flows back into the needle adapter. The Flo-Trol clamp is then moved to regulate the flow of the medical solution to the patient.
Opinion It is undisputed that the sets are medical apparatus within the meaning of item 709.27. However, plaintiff contends that the sets are specifically provided for under item 772.65 as tubing and that under the principle of relative specificity its claimed classification under item 772.65 is more specific than the Government's classification under item 709.27. The court cannot agree with this contention. Rather, for the reasons that follow, it is concluded that item 709.27 covering medical apparatus is more specific than the provision in item 772.65 for tubing, not specially provided for, of plastics suitable for conducting liquids and that the Government's classification under item 709.27 must therefore be upheld."
In considering the relative specificity of the competing provisions in question, it is to be noted that under TSUS general interpretative rule 10(c) an article described in two or more provisions of TSUS is classifiable under the provision which most specifically describes it.
In determining relative specificity, it is settled that in the absence of legisl ative intent to the contrary—which intent is lacking here-a
In addition to the issue of relative specificity, defendant argues that the imported sets are "more than" plastic tubing with fittings and hence are not covered by item 772.65, as plaintiff contends. However, it is unnecessary to reach this question in view of our disposition of the case on the basis of relative specificity. Thus the court assumes arguendo that the imported sets are not “more than" plastic tubing with fittings and are accordingly covered by item 772.65.
product described by both a use provision and an eo nomine provision is generally more specifically provided for under the use provision. See, e.g., United States v. Snow's United States Sample Express Co., 8 Ct. Cust. Appls. 351, T.D. 37611 (1918); J. J. Boll v. United States, 34 Cust. Ct. 218, 227, C.D. 1707 (1955); R. W. Smith v. United States, 41 Cust. Ct. 78, C.D. 2024 (1958); General Chain & Belt Co. v. United States, 42 Cust. Ct. 115, C.D. 2074 (1959); Novelty Import Co., Inc., et al. v. United States, 55 Cust. Ct. 169, 173–174, C.D. 2570 (1965), appeal dismissed , 53 CCPA 155 (1966); Sturm, “A Manual of Customs Law" (1974), page 242 et seq.
Applying this rule of general construction, "[t]here is no doubt * * * that item 709.27 (covering medical apparatus) is a use provision and, as such, classification thereunder is determined by chief use." University of Oregon v. United States, 65 Cust. Ct. 316, 318, C.D. 4095 (1970). On the other hand, item 772.65—the provision for tubing—is not a use provision but an eo nomine provision of the "basket” type. An eo nomine provision is one which names a specific product or describes a commodity by a specific name. See, e.g., Sturm, supra, pages 215–216. The fact that an eo nomine provision may have some limitations does not remove it from the category of an eo nomine provision. See United States v. Charles R. Allen, Inc., 37 CCPA 110, 121, C.A.D. 428 (1950). Thus, the requirement that the tubing which is covered by item 772.65 must be suitable for conducting gases or liquids merely limits or restricts the type of tubing which may be classified under that eo nomine provision.
The conclusion thus becomes apparent that under the general rule of construction that a use provision is more specific than an eo nomine provision, item 709.27 covering medical apparatus is more specific than item 772.65 covering tubing.
Moreover, where, as here, one provision (i.e., the tubing provision) is limited by a "not specially provided for" clause and the competing provision (i.e., the provision covering medical apparatus) is not so limited, the nonlimited term is generally favored, absent a contrary legislative intent which is not present here. See, e. g., United States v. Alltransport, Inc., 44 CCPA 149, 154, C.A.D. 653 (1957); Novelty Import Co., Inc. v. United States, supra, 55 Cust. Ct. at 174. Put otherwise, “[b]asket clauses and other provisions in tariff statutes are often followed by the words 'not specially provided for,' thus indicating that they are not to prevail where the article is specially provided for elsewhere.” Sturm, supra, at page 249.
Plaintiff, however, asserts that the provision for medical apparatus covers such a broad category that it does not "specially provide" for the imported merchandise. In this connection, plaintiff relies on United States v. Ampex Corp., 59 CCPA 134, C.A.D. 1054, 460 F. 2d 1086 (1972), where the court held that a provision for insulated electrical conductors with fittings was more specific than a competing provision for television apparatus on the ground that the provision for such conductors more narrowly and specifically described the importations than the provision for television apparatus. Ampex, though, is quite distinguishable from the present case. A major difference is that the provision for insulated electrical conductors does not contain a "not specially provided for" clause. By contrast, in the present case the provision for tubing covers only tubing "not specially provided for" thus indicating that the provision for tubing may not prevail since the importation here in issue is "specially provided for" elsewhere as medical apparatus.
It is to be added that there is nothing in Ampex suggesting that the provision for television apparatus does not "specially provide for" such apparatus. Indeed, the court ir. Ampex had no occasion even to consider that question. The fact is that the term "specially” as used in a "not specially provided for" clause does not require the extreme narrowness of scope which plaintiff contends in required. See, e.g., Arthur J. Humphreys v. United States, 56 CCPA 67, C.A.D. 956, 407 F. 2d 417 (1969), where the court held that a provision covering other radio broadcasting apparatus and parts thereof was more specific than a provision covering furniture not specially provided for. Hence, the court in Humphreys necessarily concluded that the provision covering other radio broadcasting apparatus and parts "specially provided for" the importations there in issue. By the same token, the provision covering medical apparatus “specially provided for" the importations here in question.
Plaintiff also relies on Max B. Heim Corp. v. United States, 28 Cust. Ct. 62, C.D. 1389 (1952), where the court held that gelatin spangles were more specifically provided for under the eo nomine provision for spangles not specially provided for, rather than as manufactures wholly or in chief value of gelatin. That case, too, is quite distinguishable from the case at bar. For in Heim, the court held that an eo nomine provision containing a "not specially provided for" clause is more specific than a general provision for manufactures of gelatin.
In the present case by contrast the competing provisions are not an eo nomine provision and a general provision but an eo nomine provision and a use provision. In that circumstance, the eo nomine provision with the limiting "not specially provided for" clause is less specific and the merchandise is more specifically described in the provision for medical apparatus.
as were more spenot specially prof gelatin. Thacim, the court
For the foregoing reasons, defendant's motion for summary judgment is granted; plaintiff's cross-motion for summary judgment is denied; and the action is hereby dismissed.
GARAY & Co., INC., PLAINTIFF 0. UNITED STATES, DEFENDANT
Thadbags of te keine 706.20, Tarintertwined, 9. in the inner
Court No. 78–4–00628 Linen handbags containing cloth and yarn in the inner handles, which yarn has been diagonally intertwined, "held" to be properly classified under item 706.20, Tariff Schedules of the United States, as handbags of textile material wholly or in part of braid.
The definition of the term "braids" contained in schedule 3, headnote 2(f) and as further detailed in the “Tariff Classification Study," schedule 3 (1960), evidences the intent of Congress to include those of a "maypole" construction in which three or more lengths are diagonally intertwined.
In view of the definition and the legislative history in which Congress states its belief that said definition properly reflects the trade conception of the term “braids," it supplants the common or trade meaning for customs purposes.
The court is bound by the language used and has no authority to give meaning to the language other than that conveyed by words, terms or expressions in which the legislative will has been expressed. Armbee Corporation et al. v. United States, 60 Cust. Ct. 105, C.D. 3278, 279 F. Supp. 438 (1968).
The heading of a tariff provision is intended as a convenience and has no legal or interpretive significance. General interpretative rule 10(b).
the trade ceaning for. by the lantener than twill has been. 165, C.D
(Judgment for defendant.)
(Decided July 31, 1979)
Before FORD, Judge.
Shaw and Stedina (Charles P. Deem on the brief) for the plaintiff.
Stuart E. Schiffer, Acting Assistant Attorney General; Joseph I. Liebman, Attorney in Charge, Field Office for Customs Litigation (Madeline B. Cohen on the brief), for the defendant.
FORD, Judge: This action is before the court on cross-motions for summary judgment filed pursuant to rule 8.2 of the rules of this court. This merchandise consists of linen handbags, styles SB7559 and SB7560, which were classified under item 706.20, Tariff Schedules of the United States, as modified by T.D. 68–9, as handbags of textile material wholly or in part of braid and assessed with duty at the rate of 21 per centum ad valorem. The classification is based upon the construction of the inner portion of the handles.
Plaintiff contends the inner portion of the handles is not braid. Accordingly, plaintiff urges the proper classification of the handbags to be under item 706.23, Tariff Schedules of the United States, as modified by T.D. 68–9, as other handbags of vegetable fibers, not pile or tufted, which provides for assessment of duty at 6.5 per centum ad valorem. The pertinent statutory provisions provide as follows:
Luggage and handbags, whether or not
fitted with bottle, dining, drinking,
2. For the purposes of the tariff schedules—
* (f) the term "braids," as used in connection with textile materials or textile articles, includes all braids in the piece, whether of flat, tubular, or other construction, with or without cores, and whether braided from fibers, filaments (including tinsel wire and lame), yarns, cordage, textile fabrics, or any combination thereof;
The statements of the parties filed pursuant to rule 8.2(b) of the rules of this court attest to the fact that there is no genuine issue of fact to be tried. The parties agree in effect that the handles consist of textile fabric and yarn. The several pieces of yarn are diagonally intertwined and perform the useful function of holding the cloth pieces, which are located inside the handles, in a round form during and after the sewing of the outer material of the handles.
This matter is submitted on statements of facts under rule 8.2(b), supra, together with two samples which have had the handles cut in