author: RE, Chief Judge:

text:
    PERMAGRAIN PRODUCTS, INC., Plaintiff, v. UNITED STATES of America, Defendant.
    No. 81-12-01644.
    United States Court of International Trade.
    Sept. 4, 1985.

      Montgomery, McCracken, Walker & Rhoads (Craig E. Ziegler, Philadelphia, Pa., at the trial and on the brief), for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Commercial Litigation Branch (Judith M. Barzilay, New York City, at the trial and on the brief), for defendant.
   RE, Chief Judge:

The question presented in this case pertains to the proper classification, for customs duty purposes, of certain merchandise imported from Canada, and described on the customs invoice as “unfinished hardwood flooring blanks.”

The merchandise was classified by the Customs Service as “other hardwood flooring” under item 202.60 of the Tariff Schedules of the United States (TSUS). Consequently, the merchandise was assessed with duty of 6.8 per centum ad valorem.

Plaintiff protests this classification and contends that the merchandise is properly classifiable under item 202.42, TSUS, as “hardwood lumber, rough, dressed or worked” free of duty.

The pertinent statutory provisions of the tariff schedules are as follows:

Classified Under:
Schedule 2, Part 1:
Wood flooring, whether in strips, planks, blocks, assembled sections or units, or other forms, and whether or not drilled or treated (except softwood flooring classifiable as lumber):
Hardwood flooring in strips or planks, whether or not drilled or treated:
202.60 Other ..................................................6.8% ad val.
Claimed Under:
Schedule 2, Part 1:
Subpart B headnotes:
(a) Lumber: A product of a sawmill or sawmill and planing mill derived from a log by lengthwise sawing which, in its original sawed condition, has at least 2 approximately parallel flat longitudinal sawed surfaces, and which may be rough, dressed, or worked, as set forth below:
(i) rough lumber is lumber just as it comes from the saw, whether in the original sawed size or edged, resawn, crosscut, or trimmed to smaller sizes;
(ii) dressed lumber is lumber which has been dressed or surfaced by planing on at least one edge or face; and
(iii) worked lumber is lumber which has been matched (provided with a tongued-and-grooved joint at the edge or ends), shiplapped (provided with a rabbeted or lapped joint at the edges), or patterned (shaped at the edges or on the faces to a patterned or molded form) on a matching machine, sticker, or molder.
Lumber, rough, dressed or worked (including softwood flooring, classifiable as lumber, but not including siding, molding and hardwood flooring):
Hardwood:
202.42 Oak (Quercus spp.) free

The question presented is whether, within the meaning of the competing tariff provisions, the imported merchandise is dutiable as “hardwood flooring [other than] in strips or planks, whether or not drilled or treated,” with a duty rate of 6.8 per centum ad valorem, as classified by Customs, or “[hardwood] lumber, rough, dressed or worked,” free of duty, as claimed by plaintiff. It must be noted at the outset that the claimed classification expressly excludes “siding, molding and hardwood flooring.” Consequently, if the imported hardwood flooring blanks are “flooring” within the meaning of item 202.60, the Customs classification is correct and the protest must be denied. In order to decide this issue, the court must consider “whether the government’s classification is correct, both independently and in comparison with the importer’s alternative.” Jarvis Clark Co. v. United States, 733 F.2d 873, 878, reh’g denied, 739 F.2d 628 (Fed.Cir.1984).

After a careful examination of the merchandise, the exhibits, testimony of record, and relevant case law, it is the determination of the court that the plaintiff has not overcome the presumption of correctness that attaches to the government’s classification. See 28 U.S.C. § 2639(a)(1) (1982); Jarvis Clark Co. v. United States, supra; E.R. Hawthorne & Co. v. United States, 730 F.2d 1490, 1490 (Fed.Cir.1984).

The' imported merchandise consists of wood parquet flooring tiles or blanks comprised of seven or eight small slats of red oak. These slats, measuring approximately % inch thick by Vs inch wide and 6% inch long, are assembled by means of two wire splines inserted into grooves cut into the underside of the blank. Each blank measures approximately 6V2 by 6V2 inches.

In attacking the Customs Service’s classification of the hardwood flooring blanks, it is the plaintiff’s principal contention that item 202.60 must be construed in light of the Tariff Classification Study (1960), which states that “other” wood flooring “includes short strips of accurately milled wood.” Plaintiff argues that the blanks are not “accurately milled.” It asserts that, since they cannot be used as flooring, they are properly classifiable as lumber.

In order to determine whether the imported flooring blanks are properly classifiable as hardwood flooring, the court must ascertain the meaning of “other” hardwood flooring, classifiable under item 202.60 of the TSUS. It is well established that tariff terms are to be construed in accordance with their common and commercial meanings. See Nippon Kogaku (USA), Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380, 382 (1982). Likewise, it is clear that the “common meaning of a tariff term is not a question of fact, but a question of law.” Schott Optical Glass, Inc. v. United States, 67 CCPA 32, 34, C.A.D. 1239, 612 F.2d 1283, 1285 (1979).

The tariff schedules are written in the language of commerce, and the terms used are to be given their commercial or common meaning. See Ameliotex, Inc. v. United States, 65 CCPA 22, 25, C.A.D. 1200, 565 F.2d 674, 677 (1977). Accordingly, the court may consider expert testimony adduced at trial to determine whether the wood blanks are hardwood flooring. Also, it is well to remember that representative samples of the merchandise may be “potent” witnesses. Marshall Field & Co. v. United States, 45 CCPA 72, 81, C.A.D. 676 (1958). As an aid in determining the meaning of a tariff item, the Tariff Classification Study may also be consulted. See, e.g., Rifkin Textiles Corp. v. United States, 54 CCPA 138, 141, C.A.D. 925, cert. denied, 389 U.S. 931, 88 S.Ct. 294,19 L.Ed.2d 283 (1967); see Izod Outerwear v. United States, 9 CIT—, Slip Op. 85-72, at 5 n. 4 (July 23, 1985). The pertinent provision of the study states:

Item 202.60 covers “other” wood flooring ____This flooring is in blocks, assembled sections or units, or other forms, and includes short strips of accurately milled wood, either separate, in sets, or assembled in sections for parquet and similar types of patterned floors.

Tariff Classification Study, Explanatory Notes and Background Materials, Schedule 2, at 22 (1960), reprinted in 1 Tariff Classification Study 166 (1963) (emphasis added).

At trial, six witnesses testified, four for the plaintiff and two for the defendant. In addition, numerous exhibits were introduced, including representative wood blanks at varying stages of manufacture.

Plaintiffs first witness was Mr. A.E. Witt, president of the plaintiff corporation since it was formed in 1977. He has been in the acrylic flooring industry since 1968, and is the holder of several patents regarding the manufacture of acrylic wood products and flooring. Mr. Witt described the processing of the merchandise prior to importation. He testified that the lumber used to manufacture the merchandise originates in Pennsylvania where it is cut into one-inch thick boards. It is then shipped to Canada where it is kiln-dried. Subsequently, the large boards are ripped to the proper size and cut into blocks. The blocks are planed on two sides before being sawed into small slats or fillets. Finally, the slats are joined by means of two wire splines embedded on the underside of the slats perpendicular to their length. Mr. Witt testified that, in his opinion, the imported merchandise had progressed approximately halfway through a finished wood floor production line.

Mr. Witt also described in detail the plaintiffs manufacturing process after importation. The blanks are placed in a vacuum to extract the air from the wood’s pores. Through an impregnation process, the pores are filled with liquid acrylic. Through irradiation, the acrylic is hardened, and the blanks are trimmed to dimension and assembled into 12- by 12-inch tiles. The plaintiff employs several sanding and buffing steps, as well as conditioning, to finish the parquet tile that it sells. Mr. Witt also testified that the cost to plaintiff of the merchandise as imported is approximately seventy-five cents per square foot. Processing the blanks after importation adds approximately one dollar and twenty-five cents per square foot to the cost. Mr. Witt stated that plaintiff uses the wood blanks for flooring except for the manufacture of some novelty items. He was personally aware that others made use of the blanks for making furniture and wall covering. He was unable to state the definition of “accurately milled” within the meaning of the wood flooring industry. He did testify, however, that, according to his company’s requirements, the blanks were not accurately milled.

On cross-examination, Mr. Witt testified that in prior business dealings he had referred to parquet flooring blanks like the imported merchandise as "flooring.” He also testified that the merchandise as imported could be laid on the floor without sanding or finishing but that, in his opinion, it would first have to be sized.

Plaintiff also submitted the testimony of three expert witnesses. Plaintiffs first expert was Mr. Thomas D. Waller, a self-employed salesman of flooring products. Mr. Waller has been in the wood flooring business for approximately ten years. On direct examination, Mr. Waller stated that he was unaware of specific industry standards concerning the words “accurately milled.” On cross-examination, he admitted that the imported merchandise could be called a wood flooring blank. He also testified that, at the very least, the merchandise would need only to be sized or squared prior to installation. Sanding and finishing could be performed after installation.

Plaintiffs next witness was Mr. Richard Fedor, employed by Fedor & Company since 1958, and its president since 1975. Fedor & Company is primarily an industrial flooring contractor and has been in the wood flooring business since 1947. Mr. Fedor testified that the imported product would need to be squared prior to installation. He stated that he had also seen wood blanks used in the construction of tables and in wall installations. On cross-examination he testified that he would describe the merchandise as a prefinished flooring blank.

Plaintiffs final witness was Mr. Joseph Covington, who has been in the wood flooring business for 36 years, and is currently the president of Covington Flooring Company of Birmingham, Alabama. He testified that, in his opinion, the merchandise could not be used as flooring as imported. Although he was personally aware of uses made of the wood blanks in installations other than flooring, he stated that it would need to be sized before use as flooring. He also stated that he would call the imported merchandise untrimmed, unfinished flooring.

The defendant called two expert witnesses. The first was Mr. Lawrence Barrett, an expert in the field of acrylic flooring manufacture for approximately twenty years. He holds over twenty United States and foreign patents, principally in the field of acrylic wood flooring manufacturing. He is currently the president of the Applied Radiant Energy Company (ARECO), a manufacturer of acrylic wood flooring materials. ARECO is a member of the American Parquet Association, and, through a subsidiary, also sells non-acrylic wood flooring materials.

During Mr. Barrett’s testimony, the defendant produced numerous exhibits, including a parquet blank manufactured by ARECO which is substantially similar to the imported merchandise. Mr. Barrett testified that he considered the ARECO parquet blank to be flooring and not lumber. He also testified that the importation would not commonly be referred to as “lumber” in the flooring industry, and that it was far removed from lumber because of the amount of work that had been performed. Mr. Barrett stated that the slats used to produce parquet blanks such as the imported product are “accurately milled,” and that any usage other than flooring constitutes less than approximately two percent of total use.

Mr. Barrett testified that the ARECO flooring blanks are marketed in three ways. The first is as acrylic impregnated flooring, similar to the plaintiff’s. The second is by simply squaring and surface finishing the blanks before installation. The third is by selling the unsquared, unsized blanks without further preparation or processing. Using a sample of the plaintiff’s imported merchandise, he demonstrated a pattern of installation known as the “straight-line” or “soldier” pattern. He testified that the imported merchandise could be laid directly on the floor with an adhesive. Any cracks that developed could be filled and the floor could be sanded and finished after installation. Such a floor would be inexpensive but would also be, in his opinion, a very attractive finished floor.

The defendant’s second expert witness was Mr. Albert Duke, the owner and president of the Peace Flooring Company of Magnolia, Arkansas. He has been in the lumber business since 1942 and in the flooring business since 1950. Mr. Duke has also been the president of the American Parquet Association since 1978. He has taught courses in various aspects of hardwood flooring installation and has personally installed floors for customers.

Mr. Duke testified that the imported merchandise would be called a parquet flooring block, and that he considered the plaintiffs merchandise to be accurately milled. He was firm that under no circumstances would it be called “lumber” in the flooring industry, stating that the product stops being lumber and begins to be flooring when it is made into slats. He also testified that although there are many uses for the merchandise other than flooring, they constitute a very small percentage of its use nationwide.

During Mr. Duke’s direct examination, the defendant introduced into evidence a parquet flooring blank manufactured by Mr. Duke’s firm. The blank was similar to the merchandise imported by the plaintiff. Instead of using a wire spline assembly, however, the slats are held together with paper facing. Using this exhibit, Mr. Duke demonstrated the “straight line” pattern of installation previously demonstrated by Mr. Barrett. Mr. Duke testified that the merchandise imported by the plaintiff could also be laid in such a configuration without further modification.

Mr. Duke stated that Peace Flooring Company sells a parquet tile known as its straight-line product. During this testimony, the defendant established by means of brochures that a straight-line product was also sold by other manufacturers. He testified that, in a straight-line pattern floor, the units would not need to be sized prior to installation. He stated that after attachment to the floor surface with an adhesive, any cracks could be filled and the floor could then be sanded and finished. He added that the imported merchandise would require neither sizing, sanding, nor finishing prior to installation.

In support of plaintiff’s assertion that the blanks as imported cannot be used as flooring, Mr. Witt testified that, in his opinion, for the blanks to be accurately milled, they would have to comply with the dimensional tolerances contained in two industry publications. The first publication, sponsored by the American Parquet Association, is entitled NBS Voluntary Product Standard PS 27-70, and deals with “Mosaic-Parquet Hardwood Slat Flooring.” This pamphlet was released in 1970 by the United States Department of Commerce for the National Bureau of Standards (NBS). The tolerance listed for each blank is “plus or minus Vs2 inch in length or width.” In 1984, this pamphlet was superseded by the American National Standard for Floors and Flooring—Mosaic-Parquet Hardwood Slat Flooring, also sponsored by the American Parquet Association, which adopted this same tolerance rating. The exhibits indicate, and the testimony confirms, that the imported merchandise did not conform to this tolerance level.

Plaintiffs witness, Mr. Witt, stated on cross-examination that he did not know who sponsored the voluntary standards, nor was his company a member of the American Parquet Association.

Defendant’s witness, Mr. Duke, president of the American Parquet Association, testified that the standards are not used in the industry for the day-to-day manufacturing of the blanks, but are used to settle claims in case they arise. More significantly, he testified that the imported hardwood flooring blanks would be considered “accurately milled” in the industry.

Expert testimony as to the common meaning of a tariff term is, of course, merely advisory. E.g., Package Machinery Co. v. United States, 41 CCPA 63, 66, C.A.D. 1200 (1953). It is, however, considered probative, particularly if it is supported by technical sources. See NEC America, Inc. v. United States, 8 CIT—, 596 F.Supp. 466, 471, aff'd, 760 F.2d 1295 (Fed.Cir.1985). In this case the “technical” source relied upon by the plaintiff’s expert has been shown to be of limited relevance to the industry meaning of “accurately milled.” Indeed, Mr. Witt testified that he wouldn’t “try to speak for the wood flooring industry.” Nevertheless, he stated his opinion that blanks are considered accurately milled when their tolerances are less than 5/iooo’s of an inch. Under the circumstances, that conclusory statement is entitled to little, if any, probative value. See, e.g., Keer, Maurer Co. v. United States, 46 CCPA 110, 115, C.A.D. 710 (1959).

In this case, the defendant did not merely rely on the statutory presumption of correctness that prevails in customs classification cases. It introduced persuasive expert testimony to refute the testimony of plaintiff’s witnesses, and to prove that the merchandise was properly classified by Customs. See Schott Optical Glass, Inc. v. United States, 82 Cust.Ct. 11, 24, C.D. 4783, 468 F.Supp. 1318, 1326, aff'd, 67 CCPA 32, C.A.D. 1239, 612 F.2d 1238 (1979); Ameliotex, Inc. v. United States, 77 Cust.Ct. 72, 84, C.D. 4673, 426 F.Supp. 556, 564 (1976), aff'd 65 CCPA 22, C.A.D. 1200, 565 F.2d 674 (1977). The presumption of correctness that attaches to the government’s classification applies to all subsidiary facts necessary to sustain the classification. United States v. New York Merchandise Co., 58 CCPA 53, 58, C.A.D. 1004, 435 F.2d 1315, 1318 (1970). A subsidiary fact on the issue of whether the slats are “other hardwood flooring” is whether they are accurately milled. Upon the record adduced at trial, it is the holding of the court that the plaintiff has not overcome the presumption of correctness that attaches to the Customs classification.

The Tariff Classification Study indicates that it is the slats or strips of wood which comprise the blanks, rather than the blanks themselves, that must be accurately milled. Indeed, the study indicates that the short strips of wood would be considered flooring even if “separate, in sets, or assembled in sections.” Tariff Classification Study, Explanatory Notes and Background Materials, Schedule 2, at 22 (1960), reprinted in 1 Tariff Classification Study 166 (1963). Through its expert witnesses, the defendant has introduced persuasive evidence that the slats which comprise the merchandise at bar are accurately milled. On all of the evidence presented, it is the conclusion of the court that the imported hardwood blanks are accurately milled within the meaning of the Tariff Act.

The court must now determine whether the blanks are “other” hardwood flooring. The plaintiff asserts that an article of wood remains lumber until it has been so far processed as to “become” the article for which the lumber was intended. See A.N. Deringer, Inc. v. United States, 61 Cust.Ct. 66, 72, C.D. 3530, 287 F.Supp. 1016, 1021 (1968) (citing United States v. C.S. Emery & Co., 18 CCPA 208, 211, T.D. 44399 (1930) (stair rails that needed only to be cut to size properly classified as manufacture of wood)). Plaintiff argues that the imported hardwood flooring blanks “clearly fall within the category of ‘dressed lumber,’ ” defined in the Tariff schedules as lumber which “has been dressed or surfaced by planing on at least one edge or face.” See Schedule 2, Part 1, Subpart B headnote 2(a)(ii), TSUS.

It is undisputed that the slats are planed “on at least one edge or face.” Thus, it is recognized that the slats fit within the description of “dressed lumber” pursuant to the headnotes to Subpart B of Schedule 2, Part 1 of the TSUS. Indeed prior to enactment of the Tariff Act of 1930, ch. 497, 46 Stat. 590 (1931), wood used for floors was classified as “dressed lumber,” see, e.g., Tariff Act of 1894, ch. 349, para. 676, 28 Stat. 509, 546 (1895); United States v. Dudley, 174 U.S. 670, 673, 19 S.Ct. 801, 802, 43 L.Ed. 1129 (1899); or as “lumber not further manufactured than sawed, planed, and tongued and grooved,” see, e.g., Tariff Act of 1922, ch. 356, para. 1700, 42 Stat. 858, 932 (1923); United States v. Mitsui & Co., 17 CCPA 67, 72, T.D. 43359 (1929).

In paragraph 402 of the Tariff Act of 1930, Congress added “flooring” as an independent tariff provision. See Tariff Act of 1930, ch. 497, para. 402, 46 Stat. 590, 629 (1931); United States Tariff Commission, Comparison of Tariff Acts 70 (1934). See generally D.B. Frampton & Co. v. United States, 60 Cust.Ct. 4, 13-14, C.D. 3243 (1968) (comparing flooring provisions of Tariff Acts of 1922 and 1930). Item 202.60 was derived from paragraphs 402, 404, and 412 of the Tariff Act of 1930. See Tariff Classification Study, Schedule 2, Part 1, at 22 (1960). In view of this history, the Court must ascertain whether the “unfinished hardwood flooring blanks” are “flooring” within the meaning of the TSUS, or whether they are raw materials for manufacturing flooring. “The crucial question in all cases is to determine which of the competing provisions has requirements which are more difficult to satisfy and which describes the article with the greatest degree of accuracy and specificity.” Amersham Corp. v. United States, 5 CIT 49, 66, 564 F.Supp. 813, 824 (1983); see, e.g., Arthur J. Humphreys, Packard-Bell Electronics v. United States, 56 CCPA 67, 69, C.A.D. 956, 407 F.2d 417, 419 (1969); United States v. Mitsui & Co., 17 CCPA 67, 72, T.D. 43359 (1929).

In support of its argument, the plaintiff relies chiefly on A.N. Deringer, Inc. v. United States, 61 Cust.Ct. 66, C.D. 3530, 287 F.Supp. 1016 (1968). In Deringer, the imported merchandise consisted of wedge-shaped wooden articles, called “horsefeathers,” which were used as a backing on the side or roof of a building in order to make the surface flat or level prior to installation of the roofing material.. Plaintiff contended that the imported merchandise was properly classifiable as rough spruce lumber, rather than as “articles of wood, not specially provided for” as classified by Customs. Defendant argued that “if a new and different product emerges which has a different name, character, or use from its predecessor, it is a manufacture,” and no longer is material. Id. at 71, 287 F.Supp. at 1019.

The United States Customs Court held that, although the imported product was useful for only one purpose, the horse-feathers were “merely one of the materials used in resurfacing roofs and sides of buildings. Hence, they were not ‘the thing itself.’ ” Id. at 73, 287 F.Supp. at 1021. It is clear that Deringer merely follows a long line of judicial authority which holds that “if the lumber has been processed to the extent that it itself became the article for which the material was intended, then it is dutiable as a manufacture of wood and not as lumber.” Id. at 72, 287 F.Supp. at 1021 (emphasis in original); see, e.g., United States v. Dudley, 174 U.S. 670, 674, 19 S.Ct. 801, 802, 43 L.Ed. 1129 (1899); United States v. C.S. Emery & Co., 18 CCPA 208, 211, T.D. 44399 (1930), construed in Border Brokerage Co. v. United States, 69 Cust.Ct. 130, 136, C.D. 4383, 349 F.Supp. 1011, 1015-16 (1972); F.W. Myers & Co. v. United States, 69 Cust.Ct. 30, 33, C.D. 4370, 345 F.Supp. 1006, 1008 (1972).

In Border Brokerage Co. v. United States, 69 Cust.Ct. 130, C.D. 4383, 349 F.Supp. 1011 (1972), the United States Customs Court had occasion to explain and apply the general rule that lumber may be processed to the extent that it ceases to be material and becomes a new article of commerce made from lumber. See. id. at 135-38, 349 F.Supp. at 1015-16. In Border Brokerage Co., the imported merchandise consisted of three pieces of dadoed or grooved wood, which comprised a “dadoed doorjamb set.” Plaintiff contended that “the doorjamb sets should properly have been classified as lumber.” Defendant maintained that the imported articles had been properly classified as articles of wood “not specially provided for.” The United States Customs Court held that the merchandise was “not lumber because it has been so manufactured as to have ceased to be a material. It has become the article itself, i.e., a dadoed doorjamb set____ In summary, in the language of the courts, it is no longer lumber as a material for the making of an article, but is the article or thing itself.” Id. at 138, 349 F.Supp. at 1016.

In this case, it is clear that the blanks are to be used as flooring. In addition, although the plaintiff alleges that the blanks are not in a condition suitable for use as flooring, the defendant introduced credible and persuasive affirmative testimony to show an alternate method of installation which would enable the blanks to be used in their present condition. Moreover, it is significant to note that prior judicial decisions have determined that wood chiefly used for flooring is properly classifiable as flooring. See, e.g., Davies, Turner & Co. v. United States, 65 Cust.Ct. 337, 341, C.D. 4099 (1970); Mitsui & Co. v. United States, 56 Cust.Ct. 267, 270, C.D. 2636 (1966). In view of the clear testimony and the demonstrations, the court holds that the imported hardwood blanks have been processed or manufactured to the extent that they have ceased to be lumber, and are “flooring” within the meaning of item 202.-60 of the TSUS.

Plaintiff asserts that the wood blanks must be lumber because they cannot be used as flooring in their condition as imported. This assertion was refuted by both of the defendant’s experts. Even if it is assumed that the blanks need to be sized or squared prior to installation, however, the blanks are, at the very least, unfinished flooring. Their classification in item 202.-60, TSUS, would thus be required by virtue of 19 U.S.C. § 1202 General Headnotes and Interpretive Rules 10(h) (1982), which provides:

(h) unless the context requires otherwise, a tariff description for an article covers such article, whether assembled or not assembled, and whether finished or not finished____

The imported merchandise was clearly identified as flooring in its condition as imported, and, indeed, was described on the invoice as “unfinished hardwood flooring blanks.” Furthermore, in addition to both of the defendant’s experts, even plaintiff’s expert, Mr. Covington, identified the imported product as untrimmed, unfinished flooring. An imported product will be classified as an article rather than material when the identity of the actual article can be discerned from an examination of the product, Bendix Mouldings, Inc. v. United States, 73 Cust.Ct. 204, 205, C.D. 4576, 388 F.Supp. 1193, 1194 (1974), appeal dismissed, 62 CCPA 109 (1975), and when the identity of actual articles can be seen emerging from undifferentiated material. American Import Co. v. United States, 26 CCPA 72, 75, T.D. 49612 (1938). Upon examination of the unfinished hardwood flooring blanks, one can clearly discern and identify the hardwood blanks as flooring.

In F.B. Vandegrift & Co. v. United States, 55 CCPA 24, C.A.D. 928 (1967), small rectangular pieces of glass were classified as “laboratory articles.” The importer protested, claiming that the glass was properly classifiable as “sheet glass, by whatever process made and for whatever purpose used.” The imported merchandise measured approximately 76 by 26 millimeters and %4-inches thick. The importer converted the glass into microscope slides by grinding the glass into dimensions of 75 by 25 millimeters, with a plus or minus .04-millimeter tolerance. The United States Court of Customs and Patents Appeals held that the “partially manufactured” miscroscope slides were properly classified. The court noted that the imported glass was the approximate size of the finished product, and agreed with the Customs Court that trimming the glass, although necessary to make the product suitable for the ultimate consumer, did not require a finding that the glass remained raw material. Id. at 27.

The issue presented in this case is substantially similar to that in F.B. Vandegrift & Co. The wood flooring blanks are designed and intended to be used for wood flooring. Assuming that the blanks as imported would not be suitable for immediate use, the act of trimming the blanks to size does not warrant a finding that they are lumber rather than hardwood flooring. See also United States v. Nylonge Corp., 48 CCPA 55, 61-63, C.A.D. 764 (1960).

The decision in B.A. McKenzie & Co. v. United States, 47 CCPA 42, C.A.D. 726 (1959) does not require a different holding. In B.A. McKenzie & Co., the court held that “doorskins,” plywood panels designed and sold as face panels for doors, were properly classified as plywood rather than as manufactures of wood. In that case, however, there was a great deal of evidence to demonstrate that the doorskins had commercial uses other than the manufacture of doors. That is, they did not lose their character as plywood, and were used for the manufacture of gun racks, luggage, paneling, and kitchen cabinets. In this case, the percentage of the blanks used for other than flooring is de minimis.

In the Summaries of Trade and Tariff Information, which often has been relied on by this Court as an indicia of legislative intent, the section describing hardwood flooring states:

The flooring provided for in item 202.-60 includes block flooring, which is generally of two types, unit or laminated. Unit block flooring is made from short pieces of strip flooring (usually of hardwood) tightly fastened together (principally by splines) to form a square, customarily 9x9 inches and 2¡/u inch thick with tongued-and-grooved edges____ Assembled sections or units of block flooring, also provided for in item 202.60, consist of (1) sets of an even number of squares (unit or laminated) fastened together so that the grain of each square forms a checkerboard or parquetry pattern in the completed panel, and (2) sets of “slat-block” flooring, each set made up of four or more smaller squares formed from narrow slats or strips.

Summaries of Trade and Tariff Information, Schedule 2, Vol. 2, at 117-18 (1967) (emphasis added). This statement clearly shows that the hardwood flooring blanks were intended to be included in item 202.60. The method of assembly is identical and the size is fairly similar. The absence of tongued-and-grooved edges is not a significant distinguishing feature. Thus, the hardwood blanks are more specifically described in the flooring provision. Accordingly, they are properly classified under item 202.60.

Based upon an examination of the imported “unfinished hardwood flooring blanks,” testimony of record, and applicable legal authority, it is the determination of the Court that the merchandise at issue has been sufficiently processed to the point that it is no longer “lumber” and has become “flooring.” Consequently, the plaintiff has not overcome the presumption of correctness that attaches to the government’s classification that the imported merchandise is “other hardwood flooring.”

Since the Court holds that the flooring blanks are properly classified under item 202.60 of the tariff schedules, plaintiff’s claim is denied and the action is dismissed. Judgment will issue accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    EAC ENGINEERING, DIVISION OF the EAST ASIATIC COMPANY, INC., Plaintiff, v. The UNITED STATES of America, Defendant.
    Court No. 82-1-00096.
    United States Court of International Trade.
    Oct. 24, 1985.

      Metzger, Shadyac & Schwarz, Carl Schwarz, Annandale, Va., and Wesley K. Caine, McLean, Va., for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Commercial Litigation Branch, Jerry P. Wiskin, New York City, for defendant.
   RE, Chief Judge:

The question presented in this case pertains to the proper classification, for customs duty purposes, of certain merchandise imported from the Federal Republic of Germany, and described on the customs invoices as “spark detection systems.”

The parties are before the court on cross-motions for summary judgment. The merchandise was classified by the Customs Service as “optical instruments” under item 712.05 of the Tariff Schedules of the United States (TSUS). Consequently, the merchandise was assessed with duty of 25 per centum ad valorem.

Plaintiff protests this classification and contends that the merchandise is properly classifiable under item 712.15, TSUS, as “Instruments and apparatus for measuring or detecting alpha, beta, X-ray, gamma, cosmic or similar radiations, and parts thereof,” with a duty rate of 6.7 per centum ad valorem in 1980 and 7 per centum ad valorem in 1979. Alternatively, plaintiff contends that the merchandise is classifiable under either item 712.49, TSUS, a “basket” provision for electrical measuring and checking instruments, or under items 688.-40 or 688.45, TSUS, depending upon the year of importation, as electrical articles not specially provided for.

The pertinent statutory provisions of the tariff schedules are as follows:

Classified Under:
Schedule 7, Part 2:
Part 2 headnotes:
3. The term “optical instruments”, as used in this part, embraces only instruments which incorporate one or more optical elements, but does not include any instrument in which the incorporated optical element or elements are solely for viewing a scale or for some other subsidiary purpose.
Electrical measuring, checking, analyzing, or automatically controlling instruments and apparatus, and parts thereof:
712.05 optical instruments or apparatus, and parts thereof ... 25% ad val. [1979].
[23.1% ad val. in 1980],
Claimed Under:
Schedule 7, Part 2, Subpart D:
Electrical measuring, checking, analyzing, or automatically controlling instruments and apparatus, and parts thereof:
Other:
712.15 Instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or similar radiations, and parts thereof........... 7% ad val. [1979].
[6.7% ad val. in 1980].
Alternative classifications claimed by plaintiff:
Schedule 7, Part 2, Subpart D:
712.49 Other ........... 10% ad val. [1979].
[9.4% ad val. in 1980].
Schedule 6, Part 5:
Electrical articles, and electrical parts of articles, not specially provided for:
688.45 Other ........... 4.9% ad val. [1980],

The Court may grant a motion for summary judgment under Rule 56 of the Rules of this Court only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See B & E Sales Co. v. United States, 9 CIT—, Slip Op. 85-22, at 5 (Feb. 28, 1985); C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust.Ct. 17, 22, C.D. 4327, 336 F.Supp. 1395, 1399 (1972), aff'd, 61 CCPA 90, C.A.D. 1129, 499 F.2d 1277 (1974).

The question presented, therefore, is whether, within the meaning of the competing tariff provisions, the imported merchandise is dutiable as “optical instruments or apparatus” as classified by Customs, or, as “instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or similar radiations,” as claimed by plaintiff. In order to decide this question, the court "must consider whether the government’s classification is correct, both independently and in comparison with the importer’s alternative.” Jarvis Clark Co. v. United States, 733 F.2d 873, 878, reh’g denied, 739 F.2d 628 (Fed.Cir.1984).

After a careful examination of the merchandise, relevant case law, the pleadings, and supporting papers, it is the determination of the Court that the plaintiff has satisfied its burden of establishing that the government’s classification was wrong. See 28 U.S.C. § 2639 (1982); Jarvis Clark Co., supra, 733 F.2d at 878. It is the determination of the Court, however, that plaintiff has not established the correct classification. The record before the Court shows that material issues of fact exist as to which of the plaintiffs proposed alternatives is correct. Hence, the Court exercises its discretionary power of remand, and orders that the action be remanded so that Customs may determine the proper classification of the imported merchandise. See 28 U.S.C. § 2643(b) (1982); Jarvis Clark, supra, 733 F.2d at 878.

The imported merchandise is used in plaintiffs Flamex Spark Detection and Extinguishing System (Flamex System). This industrial safety system is designed to prevent fires in industrial plants equipped with pneumatic dust-removing and material-transport systems in which combustible material, such as dust produced by woodworking or textile plants, is air-conveyed through ducts or pipes.

The Flamex System is comprised of a spark detection device, a control console, and an extinguishing mechanism. The spark detection device contains a photoelectric cell which is sensitive to sudden surges of infrared radiation emitted by passing sparks. When a spark passes the detector, the device emits an electrical impulse which is transmitted to the control console of the Flamex System. The console sounds an audible alarm and activates the extinguishing mechanism. The spark is doused by the extinguishing mechanism, which sprays a nebulized cloud of water into the duct or pipe being monitored for sparks.

Two kinds of detectors are used in the Flamex System: the glass-disk-type spark detector and the fibre-optic-type spark detector. Both types of detectors are claimed by plaintiff to be erroneously classified. The glass-disk-type spark detector is designed to be installed directly into the duct or pipe to be monitored for sparks, and is used in normal temperature situations. The fibre-optic-type spark detector, constructed with dual fibre-optic probes, is used in high temperature situations, and allows the photoelectric cell of the detector to be situated at a distance from a hot duct or pipe.

The glass-disk-type spark detector has three basic components or groupings of parts. The first component is a flat, darkly colored disk of glass, approximately 3 millimeters thick and 15 millimeters in diameter, which is encircled by a metal ring. The glass disk shields the photoelectric cell from extraneous visible light, but does not block infrared radiation. The glass disk is inserted into the duct or pipe being monitored for sparks, and allows infrared radiation to reach the photoelectric cell while filtering out extraneous light and protecting the cell and interior of the detector from dust accumulation.

The second component consists of a photoelectric cell and associated electrical circuitry. The photoelectric cell, a silicon semiconductor, emits an electrical impulse when exposed to a sudden surge of infrared radiation. The associated electrical circuitry amplifies the electrical impulse and transmits it to the control console of the Flamex System. The final component is the metal housing that encases the detector.

The fibre-optic-type detector also has three basic components. The fibre-optictype does not have a glass disk assembly, but, instead, has an assembly of dual-fibre optic probes. One end of the fibre optic is installed directly into the duct or pipe being monitored for sparks, and the other end is inserted into the metal housing of the detector. The fibre optic probes transmit electromagnetic radiation emitted by passing sparks from the duet to the photoelectric cell inside the detector. The fibre-optic-type detectors are used in high temperature situations because the photoelectric cell and associated circuitry are sensitive to heat, and must be located at a distance from the hot duct or pipe.

In attacking the Customs Service’s classification of the spark detectors, it is plaintiff’s principal contention that, because the imported detectors do not aid or enhance human vision or create images or pictures for inspection, they are not “optical instruments” within the contemplation of the tariff schedules. Plaintiff also contends that any “optical elements” contained in the imported spark detectors are used for a subsidiary purpose. The government admits that the articles do not “aid or enhance human vision or create for inspection any type of picture or image,” but argues that this function is not a necessary element of an “optical instrument.”

To determine whether the imported articles are properly classifiable as “optical instruments,” as provided in item 712.05, TSUS, it is “necessary to ascertain the common meaning of the tariff term and compare it with the merchandise in issue.” E. Green & Son, Inc. v. United States, 59 CCPA 31, 34, C.A.D. 1032, 450 F.2d 1396, 1398 (1971). It is well established that tariff schedules are written in the language of commerce, and the terms are to be construed in accordance with their common or commercial meanings. See Nippon Kogaku (USA), Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380, 382 (1982). Likewise, it is clear that the “common meaning of a tariff term is not a question of fact, but a question of law.” Schott Optical Glass, Inc. v. United States, 67 CCPA 32, 34, C.A.D. 1239, 612 F.2d 1283, 1285 (1979).

The headnotes to Part 2 of Schedule 7, TSUS, state that:

The term “optical instruments”, ... embraces only instruments which incorporate one or more optical elements, but does not include any instrument in which the incorporated optical element or elements are solely for viewing a scale or for some subsidiary purpose.

Schedule 7, Part 2, headnote 3, TSUS. The Tariff Classification Study explains that “Headnote 3 includes a definition of the term ‘optical instruments.’ ... It is believed that this definition substantially conforms with existing customs practice.” Tariff Classification Study, Schedule 7, at 140 (1960).

In Engis Equipment Co. v. United States, 62 Cust.Ct. 29, C.D. 3670, 294 F. Supp. 964 (1969), the United States Customs Court “summarized” existing Customs practice and detailed the characteristics necessary “to qualify a device as an optical measuring instrument for tariff purposes.” In Engis the imported merchandise consisted of autocollimators, used to determine the flatness of a surface. The imported articles were classified as optical measuring instruments. Plaintiff protested, arguing that the autocollimators were properly classifiable as scientific or laboratory instruments. The court held that the imported articles possessed all the required characteristics of optical measuring instruments. The United States Customs Court discussed the characteristics of an optical instrument for Customs duty purposes:

First, the device must function in such a manner that employment of its optical features is dominant or primary, as compared to the role of its other components. Second, the device’s optical elements must be essential to its operation; that is, to be considered an optical measuring instrument, the device cannot be operated in its intended manner without the optical components. Third, optical instruments must, in performing their intended function of measurement, act upon, deal with, or route rays of light____ Finally, the optical system of the instrument must aid human vision or create for inspection a picture or image of some object.

62 Cust.Ct. at 32, 294 F.Supp. at 966-67 (citations omitted) (emphasis added). The Engis court relied, in part, on the legislative history to the Tariff Act of 1930, which stated: “Optical instruments are primarily used to aid or supplement human vision; they also include apparatus which depends for its operation on the passage of light through prismatic or lenticular optical glass.” Id., 294 F.Supp. at 967 (quoting Summary of Tariff Information 552 (1929)).

Although the statutory definition governs the classification of an article as an “optical instrument” under the tariff schedules, courts have recognized that the Engis criteria “provide an appropriate compendium of ‘optical instrument’ characteristics.” E. g., United States v. Ataka America, Inc., 64 CCPA 60, 65 n. 4, C.A.D. 1184, 550 F.2d 33, 36 n. 4 (1977); Norman G. Jensen, Inc. v. United States, 77 Cust.Ct. 9,14 n. 4, C.D. 4668, 408 F.Supp. 1379 (1976).

The tariff meaning of the term optical instruments has been most recently discussed in United States v. Ataka America, Inc., 64 CCPA 60, C.A.D. 1184, 550 F.2d 33 (1977). In Ataka America, the imported merchandise consisted of gastrointestinal fiberscopes “designed to be inserted through the mouth and throat of [an individual] for the purpose of [visually] examining the esophagus, stomach, and gastrointestinal areas of the body.” In addition, the fiberscopes possessed “biopsy, cytology, suction, and photographic capabilities.” The imported fiberscopes were classified as “other” optical instruments. Plaintiff claimed that the fiberscopes should be classified as “other” electromedical apparatus. The United States Court of Customs and Patent Appeals held that the fiberscopes fit the statutory definition of optical instruments contained in headnote 3 to schedule 7, part 2, of the TSUS, and concluded that:

the term “optical instrument(s)” encompasses devices which act upon or interact with light, which permit or enhance human vision through the use of one or more optical elements, and, in light of headnote 3, which utilize the optical properties of the device in something beyond a “subsidiary” capacity.

Id. at 66, 550 F.2d at 37 (footnote omitted); see also Corning Glass Works v. United States, 82 Cust.Ct. 249, 254-55, C.D. 4807 (1979).

Judicial authority teaches that the statute requires that the “optical element” of an optical instrument must aid or enhance human vision. E.g., United States v. Ataka America, Inc., supra, 64 CCPA at 66, 550 F.2d at 37; see also United States v. Bliss, 6 Ct.Cust.Appls. 433, 440, T.D. 35980 (1915). In this ease, the imported spark detectors are designed to respond to infrared radiation; they do not “enhance human vision through the use of one or more optical elements.” Furthermore, any optical element of the instrument is subsidiary to its primary function of detecting sparks. Thus, it is the determination of the Court that the imported spark detectors are not “optical instruments” within the tariff meaning of the term.

The government does not-cite any case in which merchandise classified as optical instruments did not aid or enhance human vision. Instead, in support of its contentions, the government advances a theory which utilizes, by way of analogy, judicial discussion of the tariff items governing “optical glass.” In essence, the government, citing Schott Optical Glass, Inc. v. United States, 82 Cust.Ct. 11, C.D. 4783, 468 F.Supp. 1318, aff'd, 67 CCPA 32, C.A.D. 1239, 612 F.2d 1283 (1979), argues that the optical glass decisions have “broadened the understanding of what constitutes optical property and an optical effect.” This argument is unpersuasive. The decisions which pertain to the customs definition of optical instruments are numerous and clear. In view of the authority which deals with optical instruments, the Court finds Schott Optical inapplicable.

Even if it were to be assumed that the glass filter and fibreprobe constitute optical elements, it is nevertheless clear that they are subsidiary elements of the spark detectors. The pertinent judicial decisions, consistent with the statutory definition, also teach that optical features may be subsidiary elements of an imported article. Schedule 7, Part 2, headnote 3, TSUS; e.g. United States v. Ataka America, Inc., 64 CCPA 60, 66, 550 F.2d 33, 37 (1977); Engis Equipment Co. v. United States, 62 Cust.Ct. 29, 33 n. 5, 294 F.Supp. 964, 968 n. 5 (1969) (citing cases).

In Hensel, Brockman & Lorbacher v. United States, 20 Cust.Ct. 327, Abs. 52364 (1948), an imported instrument was designed to measure the amount of ozone in the atmosphere by detecting the intensity of ultraviolet light that reached a photoelectric cell in the instrument. The imported instrument was classified as “a spectrometer or as an optical measuring or testing instrument.” Id. Plaintiff claimed that the article should have been classified as a “scientific instrument.” The United States Customs Court held that the instruments were not optical measuring or testing instruments because they were “in no way an aid to vision,” and because the optical system of the imported merchandise was “a subordinate part of the equipment.” Id. at 328-29. The Hensel court stated that “A necessary prerequisite to classifying [an article] as an ‘optical instrument’ is that it ‘aids vision.’ ” Id. The court recognized that, although an instrument “may have an optical system in the form of lenses, prisms, and mirrors, and [use] principles established in the science of optics,” it is not necessarily an optical instrument. In Hensel, the instrument utilized a lens and shutter to focus the ultraviolet light on the photoelectric cell. The court held that, since the “optical system of the imported instrument is used only to segregate the desired wave lengths and concentrate them electrically upon [a] photoelectric cell,” the imported article was properly classifiable as a scientific instrument and not an optical instrument. Id.; see also Henry Wild Surveying Instrument Supply Co. of America v. United States, 32 Cust.Ct. 91, 93, C.D. 1586 (1954).

In this ease, the glass disk allows infrared radiation to strike the photoelectric cell, and prevents dust from accumulating inside the detector. To the extent that the disk prohibits visible light from deceiving the detector, and allows infrared radiation to pass, it is similar to the instrument in Hensel, Brockman & Lorbacher, supra, which was “used only to segregate the wavelengths and concentrate them electrically upon the photoelectric cell.” Indeed, the exhibits show that the glass disk not only blocks out extraneous visible light, but also prevents the accumulation of dust in the detector. Moreover, the plaintiff’s marketing literature indicates that the detector, because of its sensitivity to light, must be located only “in dark environments, such as exhaust tubes, covered silos, etc.” Thus, since the detector must be located in a dark environment, the glass disk prevents accidental triggering of the device by extraneous light.

In its reply brief, the government submits that since the glass disk prevents dust from accumulating in the detector, “logic dictates that its role is other than subsidiary.” It strains logic and reason, however, to consider the disk’s protection of the cell from dust accumulation as an optical function. On the facts presented, it is the determination of the court that the glass disks perform a subsidiary function. In addition, it is not contested that the sole purpose of the fibre-optic element in the fibre-optic detector is to protect the device from excessive heat. The probes merely transmit the radiation and any visible light to the photoelectric cell. Accordingly, the Court holds that neither type of spark detector comports with the statutory definition of optical instruments contained in headnote 3 to Schedule 7, Part 2, TSUS.

In all cases, it is fundamental that the court must interpret statutes in a manner that will give effect to the legislative purpose. Pursuant to the Customs Courts Act of 1980, the legislature has mandated that the United States Court of International Trade reach the correct classification in every case. Customs Courts Act of 1980 § 301, 28 U.S.C. § 2643(b) (1982); Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed.Cir.1984). Specifically, Congress has provided that, if a Customs classification is shown to be wrong, “the court may order a retrial or rehearing for all purposes, or may order such further administrative or adjudicative procedures as the court considers necessary to enable it to reach the correct decision.” 28 U.S.C. § 2643(b). The statute, however, “leaves to the court the discretion whether it should remand for further proceedings, or should reach the correct decision on its own.” Jarvis Clark, supra, 733 F.2d at 878. In this case, remand is appropriate because plaintiff has established the incorrectness of the classification independently of its proposed alternatives.

The parties agree that the superior heading to items 712.05 to 712.51 covers the imported articles. However, summary judgment cannot be granted because material facts must be resolved to determine which of plaintiff’s proposed alternatives is correct. In its brief, the government states that, if the imported spark detectors are not “optical instruments” or “instruments and apparatus for measuring or detecting” radiation, it would concede that the imported articles are “other” electrical measuring, analyzing, or automatically controlling instruments and apparatus, under item 712.49, TSUS. This concession, however, does not dissipate the existence of unresolved material facts.

It is clear that the “ ‘uniform and consistent interpretation and application’ of the customs laws is central to customs policy.” Jarvis Clark, supra, 733 F.2d at 876 (quoting H.Rep. No. 1235, 96th Cong., 2d Sess. 29, reprinted in 1980 U.S. Code Cong. & Ad. News 3729, 3741); cf. Texas & Pacific R.R. v. Abilene Cotton Oil Co., 204 U.S. 426, 439-40, 27 S.Ct. 350, 354-55, 51 L.Ed. 553 (1907) (judicial function is aided by initial agency determinations); New Hampshire Motor Transport Ass’n v. Flynn, 751 F.2d 43, 51 (1st Cir.1984). In this case the Court deems the power of remand to be the appropriate judicial remedy to effectuate the legislative will. See Jarvis Clark, supra, 737 F.2d at 876-77. Accordingly, this action is remanded to the Customs Service so that it may reclassify the imported merchandise in accordance with the appropriate statutory provision of the Tariff Schedules of the United States.

It is the determination of the Court that the imported spark detectors are not optical instruments for Customs Duty purposes, and that plaintiff has not established the correct classification. Accordingly, the Court holds that plaintiff’s motion for summary judgment is granted in part and denied in part. The action is remanded to the Customs Service to determine the correct classification of the imported merchandise.