United States v. Avdel Corp.

546 F.2d 901, 64 C.C.P.A. 44, 1977 CCPA LEXIS 174

• Court: Court of Customs and Patent Appeals
• Decided: January 13, 1977
• Docket: C.A.D. 1182; No. 76-2
• Status: Published

Opinions

Miller, Judge.

This appeal is from the order of tbe United States Customs Court, 75 Cust. Ct. 227, P75/510 (1975), granting appellee’s motion for summary judgment on the basis of the decision on identical merchandise in Avdel Corp. v. United States, 73 Cust. Ct. 200, C.D. 4575 (1974) (hereinafter the “first Avdel case”). In awarding summary judgment, the Customs Court held that the merchandise, which had been classified under item 657.20, TSUS, “Articles of iron or steel,not coated or plated with precious metal: * * * Other,” was more properly classified as “Rivets * * *: Of iron or steel and not brightened, not lathed, and not machined” under item 646.40, TSUS. We reverse and remand.

The Importation

The goods are described only as rivets composed of aluminum and iron or steel. Their actual composition or construction is not before the court, but both parties agree that the component of chief weight is either iron or steel.

Statutory ProvisioNS

SCHEDULE 6. - METALS AND METAL PRODUCTS

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Schedule 6 headnotes,

2. For the purposes of the tariff schedules, unless the context requires otherwise—

(b) the term “base metal” embraces aluminum, antimony, arsenic, barium, beryllium, bismuth, boron, cadmium, calcium, •chromiumj cobalt, columbium, copper, gallium, germanium, hafnium, mdium, iron, lead, magnesium, manganese, mercury, molybdenum, nickel, rhenium, the rare-earth metals (including scandium and yttrium), selenium, silicon, strontium, tantalum, tellurium, thallium, thorium, tin, titanium, tungsten, uranium, vanadium, zinc, and zirconium, and base-metal alloys;

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(d) in determining which of two or more equally specific provisions for articles “of iron or steel”, “of copper”, “of aluminum”, or “of” other base metals applies to a article containing two or more base metals and wholly or in chief valuef¹] thereof, the classification shall be made according to the base metal which predominates by weight over each of the other base metals rather than according to the base metal in chief value.

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PART 3. - METAL PRODUCTS

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Subpart D. - Nails, Screws, Bolts, and Other Fasteners; * * *

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Rivets of base metal:

646.40 Of iron or steel and not brightened, not lathed, and not machined_ 0.5(5 per lb.'

646.41 Other_ 14% ad val.

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Subpart G. — Metal Products Not Specially Provided For

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Articles of iron or steel, not coated or plated with precious metal:

Other articles:

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657.20 Other_ 19% ad val.

657.40 Articles of aluminum, not coated or plated with precious metal_ 19% ad val.

Background

In the first Avdel case, supra, the goods were classified under item 657.20, TSUS, as other articles of iron or steel, and the importer claimed classification under item 646.40, TSUS, as rivets of iron or steel or in the alternative under item 646.41, TSUS, as rivets of other base metal. The central issue was whether or not the articles were rivets. Having determined that the articles were rivets, the Customs Court, relying upon Customs classification under item 657.20 as articles of iron or steel rather than under item 657.40 as articles of aluminum, assumed that the iron or steel component was the component of chief value, and held that the goods should be classified under item 646.40.

In the case before us, the Customs Court noted that its assumption in the first Avdel case was incorrect, but said that this did not affect either the first Avdel case or this case because (1) weight determines the choice between classification under items 657.20 and 657.40 and between items 646.40 and 646.41, (2) the weight of the steel in the subject rivets exceeds that of the aluminum therein, and (3) the identity of the merchandise as “rivets” is not at issue, so that the choice must be made between items 646.40 and 646.41. Accordingly, the Customs Court upheld classification under item 646.40, as claimed by appellee (and as determined in the first Avdel case).

OPINION

This case turns on the meaning of the phrase “equally specific” in headnote 2(d). If items 646.40 and 646.41 are “equally specific,” appellee’s rivets must be classified under item 646.40, because of (1) the finding by the Customs Court that the weight of the steel in the rivets exceeds that of the aluminum therein, and (2) the finding by the Customs Court in the first Avdel case that identical rivets (such identity not being challenged by the government) were “not brightened, not lathed, and not machined.” However, if items 646.40 and 646.41 are not “equally specific,” the award of summary judgment by the Customs Court must be reversed, for there would clearly be an issue of fact — the chief value as between the steel and aluminum in appellee’s rivets.

Headnote 2(d) plainly shows Congressional concern over provisions wherein the sole difference therebetween was the base metal of which the article was made.² Thus, the Tariff Classification Study, Schedule 6, at 2 (1960), states (in the context of equally specific provisions):

Insofar as comparisons of base metals are concerned under headnote 2(d), for tariff classification purposes comparisons of base-metal components with each other would be made on a weight basis rather than according to their respective values. [Emphasis added.]

Webster’s Third New International Dictionary (unabr. 1961) defines ‘'equally” as “. . . 2.: to an equal degree . . .

Plainly items 646.40 and 646.41 do not describe appellee’s rivets of base metal steel and base metal aluminum, not brightened, not lathed, and not machined, to an equal degree.³ Item 646.40, covering rivets of base metal steel, not brightened, not lathed, and not machined, states requirements that are more precise and, therefore, provides for appellee’s rivets with a greater degree of accuracy than does item 646.41, encompassing rivets of aluminum regardless of whether they are brigthened, lathed, or machined.⁴ See Broderick & Bascom Rope Co. v. United States, 59 CCPA 130, C.A.D. 1053, 460 F. 2d 1070 (1972); United States v. Simon Saw & Steel Co., 51 CCPA 33, C.A.D. 834 (1964); Wilfred Schade & Co. v. United States, 62 Cust. Ct. 138, C.D. 3701, 295 F. Supp. 1117 (1969).

By ignoring the common meaning of the phrase “equally specific,” the Customs Court would effectively read the phrase out of headnote 2(d). [5] Absent evidence of Congressional intent to the contrary, the common meaning controls. James v. United States, 48 CCPA 75, C.A.D. 768 (1961).

Accordingly, the award of summary judgment by the Customs Court is reversed.

Appellant points out that the main superior heading, “Articles of iron or steel, not coated or plated with precious metal:” (which encompasses item 657.20), is equally specific to the main superior heading, item 657.40, “Articles of aluminum, not coated or plated with precious metal.” Classification by the Customs Service under 657.20 was, therefore, presumptively made on the basis of weight. Thus, there is no evidence of chief value of steel or aluminqm. Therefore the case must be remanded for determination of chief value as between these metals in order to determine whether item 646.40 or 646.41 applies.

1 With respect to chief value, General Headnotes and Rules of Interpretation provides, as follows:

10. General Interpretative Rules. For the purposes of these schedules—

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(f) an article is in chief value of a material if such material exceeds in value each other single component material of the article:

2 For example, items 642.06, 642.08, and 642.10, TSUS:

Strands, ropes, cables, and cordage, all the foregoing, of wire, whether or not cut to length, and whether or not fitted with hooks, swivels, clamps, clips, thimbles, sockets, or other fittings or made up into slings, cargo nets, or similar articles:

Not fitted with fittings and not made up into articles:

Not covered with textile or other nonmetallic material:

Wire strand:

642.06 Of nickel_..___

642.08 Of stainless steel.-.

642.10 Other.

3 General headnote 10(c) provides:

[A]n imported article which is described in two or more provisions of the schedules is classifiable in the provision which most specifically describes it ... .

[4] It would follow that the meaning of “equally specific” is with reference to the imported article. See Fink v. United States, 170 U.S. 584 (1898).

4 Nevertheless, the dissenting opinion ignores the common meaning of “equally” and says that items 646.40 and 646.41 are equally specific because they are “defined in terms of one another.” Contrary to the impression advanced by the dissenting opinion that Congress intended that comparisons between base metal components always bo on a relative weight basis, headnote 2(d) clearly provides for a relative value basis where the provisions are not equal specific.