John V. Carr & Son, Inc. v. United States

77 Cust. Ct. 103, 1976 Cust. Ct. LEXIS 1020
United States Customs Court·Decided December 21, 1976·No. C.D. 4679; Court Nos. 70/5763·Published·Cited by 3 cases

Opinion

Maletz, Judge:

This action comprises seven consolidated protests which raise the question as to the proper tariff classification of plastic pipe flanges imported from Canada in 1969 and 1970. The merchandise was classified by the government under item 770.10 of the Tariff Schedules of the United States, as modified by T.D. 68-9, as articles not specially provided for, wholly or almost wholly of reinforced or laminated plastics, other, and assessed duty of 16 cents per pound plus 13.5 percent ad valorem or 14.5 cents per pound plus 11.5 percent ad valorem, depending upon the date of entry.

Plaintiff contends that the imported flanges are properly dutiable under item 774.60, as modified by T.D. 68-9, as articles not specially provided for, of rubber or plastics, other, at the rate of 13.5 percent or 11.5 percent ad valorem, depending upon the date of entry.

The pertinent provisions of the tariff schedules are as follows:

Classified under:

Schedule 7, Part 12, 'Subpart A

Subpart A headnotes:

*******

2. For the purposes of the tariff schedules, the term “reinforced or laminated plastics” means—

(ii) rigid plastics comprised of imbedded fibrous reinforcing material (such as paper, fabric, asbestos, and fibrous glass) impregnated, coated or combined with'plastics usually by the application of heat or heat and low pressure.

[105]*105770.10 Articles not specially provided for wholly or almost wholly of reinforced or laminated plastics:

Other_ 16$ per lb.+ 13.5% ad val. [1969] 14.5^ per lb.+ 11.5% ad val. [1970]

Claimed under:

Schedule 7, Part 12, Subpart D

60 Articles not specially provided for, of rubber or plastics:

Other.... 13.5% [1969] 11.5% [1970]

Against this statutory background, there are two issues in the case: (1) whether the imported flanges are comprised of “imbedded fibrous reinforcing material” within the meaning of headnote 2(ii) of schedule 7, part 12, subpart A, supra; and (2) whether the foregoing headnote excludes from its scope articles not produced by the application of heat and low pressure. As to these issues, plaintiff contends that chopped strands of fiber glass which are used in the manufacture of the flange to reinforce the plastic are not a fibrous material. Plaintiff further argues that powdered asbestos which is used in the manufacture of the flanges provides no reinforcement to the plastic and is thus not a reinforcing material within the meaning of headnote 2 (ii). Finally, plaintiff insists that since the imported flanges are always made with the application of heat and high pressure, i.e., pressure between 1,000 and 4,000 pounds per square inch, the flanges do not come within the scope of headnote 2 (ii).

The record consists of the testimony of three witnesses for plaintiff,1 two for defendant,2 and 22 exhibits. The record shows that the flanges were produced in Canada by Protective Plastics, Limited, and imported into the United States by plaintiff as customhouse broker. The flanges ranged in size from % to 24 inches in diameter and were used mainly to [106]*106connect reinforced plastic pipe and to serve as nozzles and flanged connections to other reinforced plastic equipment.

The flanges were manufactured from a mixture of polyester resin, chopped fiber glass strands, asbestos and other chemicals. Initially benzol peroxide, a catalyst, and stabilizer chemicals were added to the polyester resin, and these ingredients weie subjected to a mechanical mixing process. Color pigments and asbestos powder were then added to the mixture ,and finally, while the mixture was still in motion, fiber glass chopped strands were added until the mix had a dough-like consistency. This mix was hand-packed into the female die of a molding press. Both the male and female portions of the die were then heated to between 280° and 320° Fahrenheit and the press was hydraulically activated for a preset time compressing the substance at a pressure which ranged between 1,000 and 4,000 pounds per square inch. When the press opened, the operator removed the rigid cured flange which had been formed. The flange was never made by the application of heat alone, and pressures between 1,000 and 4,000 pounds per square inch were always used in conjunction with the heat. The use of pressures of that magnitude is now common in the reinforced plastics industry.

The chopped strands of fiber glass which were added to the polyester resin consisted of many parallel monofilaments or fibers of glass that individually measured about one-hundred thousandths of an inch in diameter. Each strand contained from 50 to 400 individual fibers which could be separated from one another. The chopped strands were made from continuous fiber glass strands by cutting these strands at predetermined lengths, e.g., ){- or %-inch strands.

Plaintiff’s witness Angelí testified that the chopped strands were not fibrous. In his opinion, to be fibrous a material must have fibers that extend in more than one direction and thus are randomly arranged. Hence, he concluded that the chopped strands were not fibrous because all the fibers within a given strand were parallel. Plaintiff’s witness Szasz agreed that the chopped strands Were not fibrous on the ground that they were individual loose strands rather than strands which were matted or bonded together in a random fashion.

In contradistinction, both witnesses for defendant testified that the terms fiber glass and fibrous glass are synonymous and that chopped strands are fibrous because they are composed of many individual filaments or fibers. Defendant’s witness Luther further noted that the fibrous nature of the chopped strands can be revealed by twisting a single strand in one’s hand and pulling the fibers apart. He emphasized that fibrous glass can be composed of parallel as well as nonparallel fibers.

[107]*107In sum, plaintiff, while conceding that chopped strands of fiber glass are reinforcing material, maintains that in their common meaning they do not constitute a fibrous reinforcing material on the ground.that the fibers are parallel rather than randomly arranged. Defendant, on the other hand, contends that in their common meaning the terms fibrous glass and fiber glass are interchangeable. For the reasons that follow, the court must agree with the defendant’s position.

The law governing the common meaning of tariff terms is well stated in Sturm, A Manual of Customs Law (1974), p. 202:

Tariff terms are to be construed in accordance with their common and commercial meanings, which are presumed to be the same. Meyer & Lange et al. v. United States, 6 Ct. Cust. Appls. 181, T.D. 35436 (1915); August Bentkamp v. United States, 40 CCPA 70, 78, C.A.D. 500 (1952); United States v. M. & D. Miller, Inc., 41 CCPA 226, C.A.D. 556 (1954); United States v. Victoria Gin Co., Inc. et al., 48 CCPA 33, C.A.D. 759 (1960); Floral Arts Studio et al. v. United States, 46 CCPA 21, C.A.D. 690 (1958); United States v. C. J. Tower & Sons, 48 CCPA 87, C.A.D. 770 (1961).

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John V. Carr & Son, Inc. v. United States, 77 Cust. Ct. 103, 1976 Cust. Ct. LEXIS 1020 (cusc 1976).

77 Cust. Ct. 103 (John V. Carr & Son, Inc. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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