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DECISIONS OF THE UNITED STATES

CUSTOMS COURT

Protests

(C.D. 4042)

BEAUTI-VUE PRODUCTS COMPANY V. UNITED STATES

Bamboo articles CLASSIFICATION—"CHIP

Thin wooden strips contained in the importation in question were not sufficiently flexible to meet the definition of "chip" set forth in the headnotes to the relevant portion of the tariff schedules. Accordingly, the importation is properly classifiable as other importations of unspun fibrous material, etc., pursuant to item 222.36 of the Tariff Schedules of the United States.

SAME

The degree of flexibility required in order for wooden strips to be classified as "chip” is one which permits weaving, braiding or plaiting into shapes or forms such as baskets. Simple over and under weaving will not satisfy this requirement. Citing Tuska v. United States, 1 Ct. Cust. Appls. 535, T.D. 31547 (1911), P.L. Thomas Co., Ino. v. United States, 49' Cust. Ct. 283, Abs. 67164 (1962).

United States Customs Court, First Division

Protest 68/44603–14694 against the decision of the collector of customs at the

port of Chicago

(Judgment for plaintitt.)

(Decided July 6, 1970)

Sohroarts de Lidstrom (Harl R. Lidstrom and Joseph Somoartx of counsel) for the plaintit.

waliam D. Ruckelshaus, Assistant Attorney General (Irving A. Mandel and Thomas Fernandes, trial attorneys), for the defendant

Before WATSON, MALETZ, and Re, Judges

WATSON, Judge: This protest places in issue an importation consisting of lengths of woven thin wooden strips commonly used to make shades or draperies. The merchandise is invoiced as "Woven Materials #5 Overlapping Basswood” and “44 inch Basswood (Rounded Edge #7007)”. It was classified under item 222.32 of the Tariff Schedules of the United States at the rate of 25 per centum ad valorem as woven materials of unspun fibrous vegetable materials suitable for use in making blinds, shutters, curtains, screens or shades, made of chip.

Plaintiff claims that the imported merchandise is not made of "chip” and is therefore classifiable under item 222.36 of said tariff schedules which provides for other woven materials of unspun fibrous vegetable materials, that is to say, those not made of chip. In sum, the sole dispute between the parties is whether or not this importation is made of “chip”.

The relevant provisions of the Tariff Schedules of the United States, are as follows:

STATUTES

Woven or partly assembled material of un

spun fibrous vegetable materials, suitable
for use in making blinds, shutters, cur-
tains, screens or shades:

222.32

Of chip--

25% ad val.

222.36 Other

10% ad val. As an aid to readers of the tariff schedules, the term "chip" is defined in the headnotes of schedule 2, part 2, subpart B. The headnote states that “chip” means, "flat, narrow, flexible strips of wood which are under 716 inch in thickness and can be woven, braided, or plaited into a definite shape or form”. The evidence as introduced herein by both parties is directed to the question of whether or not this importation meets the definition set forth above.

Plaintiff's president testified that the imported material represented by exhibit 1, consists of thin slats of basswood woven together by threads. He stated that the basswood slats do not possess sufficient flexibility or strength to be braided, plaited or woven into any articles possessing commercial value. Defendant's witness, the commodity specialist who passed on the merchandise in question, testified that he utilized basswood imported by the plaintiff and stipulated to be similar to that involved herein, and manipulated such basswood into a simple over-and-under woven form placed in evidence as exhibit B. Said manipulation was assisted by the soaking of the basswood in water.

In the opinion of this court, the merchandise involved herein does not possess the degree of flexibility envisioned by the legislators in their definition of “chip". We reach this conclusion by reason of a careful examination of the material in question and a close scrutiny of the decisions of the court which resulted in the specific language used in the definition of "chip’ appearing in the headnotes.

The decision from which the exact language of the headnote definition is taken is Tuska v. United States, 1 Ct. Cust. Appls. 535, T.D. 31547 (1911). In that decision the appellate court held that baskets made of a flat, split, thin wood were manufactures of chip. In the course of that opinion they expressed a view that chip refers to "flat, narrow strips of wood split or shaved to a thinness and flexibility which will permit of their being woven, braided, or plaited into a definite shape or form.”

We view that definition as referring to a degree of flexibility far greater than that possessed by the instant importation, namely, one which permits manipulation into a shape or form possessing three dimensional or "sculptural" qualities. This view is reinforced by the opinion of the late Chief Judge Oliver in P. L. Thomas Co., Inc. v. United States, 49 Cust. Ct. 283, Abs. 67164 (1962). In that case plaintiff protested the classification of certain flat, wooden sticks as manufactures of chip. The court was of the opinion that the word "chip” required a degree of flexibility greater than that involved in simple under-and-over weaving, in fact, one which permitted weaving into hats, bonnets, hoods, baskets and such articles. The court noted that “[w]hile it might appear that it would be possible to weave strips of the ribbon veneer material involved into a definite shape or form by a simple process of under-and-over weaving, we are of the opinion that the term 'chip’ could not properly be applied to the material in such a situation, nor the term 'manufactures of chip’ to the result of such a process.”

Our examination of the exhibits further reinforces our conclusions regarding the flexibility of the importation. The object created by the commodity specialist with the help of a water soaking resembles the under-and-over creations made by children from ice cream sticks and gives no true indication of the requisite flexibility which would result in true shapes or forms. The slats themselves are easily broken when manipulated in any but the most cautious manner and certainly do not meet the requirements of flexibility as set forth in the relevant decisions. We note in passing that almost any substance, certainly almost any wood, would, if cut as thin as the importation, possess a certain degree of flexibility. This flexibility is, however, a relative characteristic and does not meet the requirements of the statute.

In conclusion, we note that the dictionary definitions of the word "chip” past and present, uniformly support the view that the flexibility required is one which would permit the formation of three dimensional objects such as baskets or hats,

In all respects other than those related to the term "chip”, the importation meets the description for woven or partly assembled materials of unspun fibrous vegetable material, suitable for use in making blinds, shutters, curtains, screens or shades. In view of the foregoing, we hold that the importation is properly classifiable under item 222.36 providing for "Other" importations meeting the above description and is properly dutiable at the rate of 10 per centum ad valorem.

Judgment will issue accordingly.

(C.D. 4043)
EXCEL, INC. v. UNITED STATES

Wheel goods

MACHINES COMMON MEANING

Certain bicycle handbrakes, although they may possess mechanical features in a narrow, technical sense, are not machines within the common meaning of that term. Citing Trans Atlantic Co. v. United States, 54 CCPA 75, C.A.D. 909 (1967); Morris Friedman v. United States, 57 CCPA 92, C.A.D. 983 (1970).

United States Customs Court, First Division

Protests 67/45149-4736 and 87/85981–6116 against the decision of the district

director of customs at the port of Ohicago

(Judgment for defendant.]

(Decided July 6, 1970)

Schroartz & Lidstrom (Barl R. Lidstrom and Rufus B. Jarman, Jr., of counsel) for the plaintiff.

wariam D. Ruokelshaus, Assistant Attorney General (Glenn 2. Harris and Robert E. Burke, trial attorneys), for the defendant.

Before WATSON, MALETZ, and Rn, Judges

WATSON, Judge: These two protests, consolidated for the purpose of trial, place in issue the classification of certain bicycle handbrakes imported from West Germany. The brakes were classified pursuant to item 732.36 of the Tariff Schedules of the United States as parts of bicycles. Plaintiff claims that the merchandise is properly classifiable pursuant to item 678.50 of said tariff schedules as machines, not specially provided for.

Plaintiff concedes that the merchandise is chiefly used as parts of bicycles but contends that the provision for machines is a specific provision which must prevail over a provision for parts pursuant to General Interpretative Rule 10(ij) in the General Headnotes and Rules of Interpretation to the Tariff Schedules of the United States. That rule provides that “a provision for parts of an article covers & product solely or chiefly used as a part of such article, but does not prevail over a specific provision for such part.” [Emphasis supplied.] The issue in this case is therefore whether the provision for machines not specially provided for is a “specific provision” for the importation which will prevail over a provision for parts.

An examination of the exhibit and the testimony of plaintiff's vicepresident in charge of engineering and manufacturing lead to the following conclusions regarding the nature of the importation. It is a handbrake commonly seen on bicycles consisting of a lover connected by cable to calipers. Pressure on the lever is transmitted by the cable to the calipers and presses their rubber heads against the rim of the wheel. It appears that the force applied is magnified by reason of the mechanical advantage supplied by the lover.

Our examination of the importation in question and our study of the relevant case law, lead to the conclusion that the importation is not a machine within the meaning of the Tariff Schedules of the United States.

Our appellate court in the case of United States v. Idl Mfg. & Sales Corp., 48 CCPA 17, C.A.D. 766 (1960), gave the following opinion based on its attempt to synthesize the case law regarding the definition of machine."

The state of the case law leads us to but one conclusion. While many items have been held to be, or not to be, machines,” there is no “judicial determination" of what a machine is. It remains simply a question of common meaning and each case must be

decided on the basis of its own facts, technical and legislative. This mandate for flexibility and our own study of the case law, cause us to be wary of blindly adhering to certain so-called definitions of machines such as "a mechanical contrivance which 'utilizes? (applies' or 'modifies energy or force for transmits motion!” See Simon, Buhler & Barumann (Inc.) v. United States, 8 Ct. Cust. Appls. 273, T.D. 37637 (1918). Nor do we give controlling effect to the fact of whether or not the importation acts on something outside itself. Concerning this factor, our appellate court has recently stated as follows in Morris Friedman v. United States, 57 CCPA 92, C.A.D. 983 (1970):

*** Appellant has made much of the lower court's reference to our observation in the Trans Atlantic case that the lock sets did not make or act on something outside themselves. We did not intend to lay that down as a conclusive test which will determine whether an item is or is not a machine. Nevertheless it is true of many things considered to be machines that they do make or act on something else and it is relevant to observe that the loose-leaf mechanisms do not do this.

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