Border Brokerage Company, Inc. v. United States
| Decision Date | 22 March 1967 |
| Docket Number | C.D. 2929. |
| Citation | 58 Cust. Ct. 185 |
| Parties | BORDER BROKERAGE COMPANY, INC., ET AL. <I>v.</I> UNITED STATES. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Glad & Tuttle (George R. Tuttle of counsel) for the plaintiffs.
Barefoot Sanders, Assistant Attorney General (Bernard J. Babb and Avram Weisberger, trial attorneys), for the defendant.
Before RAO and FORD, Judges
The merchandise involved in these three protests, consolidated for purposes of trial, consists of power chain saws powered by gasoline engines, which were imported as units and classified as machines, not specially provided for, under paragraph 372 of the Tariff Act of 1930, as modified by T.D. 54108.
Plaintiffs claim the power units used with the chain saws should be constructively segregated and classified as internal-combustion engines of the carburetor type under paragraph 372 of the Tariff Act of 1930, as modified by T.D. 52739. Plaintiffs also claim certain engine replacement parts, which were classified as parts of machines, not specially provided for, under paragraph 372, as modified, supra, are dutiable as parts of internal-combustion engines under said paragraph, as modified, supra.
The pertinent portions of the applicable tariff provisions are as follows:
Paragraph 372, as modified by T.D. 54108:
Machines, finished or unfinished, not specially provided for
* * * * * * *
Other (* * *) ------------------------------- 11½% ad val
Paragraph 372, as modified by T.D. 52739:
Machines, finished or unfinished, not specially provided for
* * * * * * *
Internal-combustion engines of the carburetor
type -------------------------------------- 8¾% ad val
* * * * * * *
Parts, not specially provided for, wholly or in chief value of metal or porcelain, of any article provided for in any item 372 in this Part:
* * * * * * *
Other ----------------------------------- The rate for the
article of which
they are a part
The subject merchandise consists of various models, and parts, of power chain saws, each of which consists of a "power head" and a cutting attachment. The power head includes an internal-combustion engine, a gas tank, handles to permit its operation, and a driving sprocket and clutch assembly which drive the bar and chain. The cutting attachment consists of a guide or cutting bar and the saw chain which engages the teeth surrounding the drive sprocket. Other components, also part of the importation, such as a chain tensioner, a bucking spike, and a chain oil system, were not allocated specifically by the testimony to either the power head or the cutting attachment.
The power chain saw is packed and shipped as a complete unit incorporating the internal-combustion engine and other attachments which make it suitable for chain saw use. The bar and chain in some instances also are shipped in the same box. Although the internal-combustion engine was originally designed as a "cart" engine, chain saw application is the primary purpose for its manufacture and its major use.
In support of its claims, plaintiffs rely heavily upon the decision of the Court of Customs and Patent Appeals in Geo. S. Bush & Co., Inc. v. United States, 41 CCPA 33, C.A.D. 525, modifying in part the lower court decision reported at 28 Cust. Ct. 308, C.D. 1429. We deem the decision of the appellate court controlling here.
In the Geo. S. Bush & Co., Inc., decision, this court held that a gasoline-driven power saw, imported in a knocked-down condition, composed of an internal-combustion engine of the carburetor type, a gearhousing assembly, a cutter bar and chain with saw teeth, a handlebar assembly, and a tailstock assembly, is an entirety for customs purposes and properly classifiable as a machine, not specially provided for, under paragraph 372 of the Tariff Act of 1930. Each of the various component parts, the court held, is essential to the proper functioning of the whole and each loses its separate name and character when united with all of the others. The article, known and described as a "gasoline-driven power saw," normally functioned with an internal-combustion engine of the carburetor type. The court then stated:
* * * It [the gasoline-driven power saw] cannot operate without such engine, unless adaptations and modifications are made for the use of electric motors or air compressors. Neither can the engine of a gasoline-driven power saw, without adaptation, be devoted to any other use. * * *
The quoted language apparently was the basis for the disagreement upon appeal to the Court of Customs and Patent Appeals which, contrary to the decision of the trial court, held the gasoline engine to be segregable and dutiable as such. Geo. S. Bush & Co., Inc. v. United States, supra. The majority decision, noting that the trial court held a distinctive use of the imported engines could not be effected without a basic modification of the engine or the saw mechanism, found that the record indicated that the different means of attachment might or would have to be employed from that used with the imported saws should the imported engine be detached and other power producing units used. There was absolutely no evidence, however, that the engine itself must be altered to make it function as a power producing unit for various purposes which the engine otherwise could serve, nor that the sawing mechanism itself must be altered when propelled by compressed air or electric power.
The guidance we find in the appellate court's decision indicates that a gasoline-driven power saw is not classifiable as an entirety if the gasoline engine can be detached and used for other purposes without alterations to the engine itself and if the sawing mechanism may be powered by compressed air or electricity without alterations in the sawing mechanism itself.
We believe this interpretation of the appellate court's decision is consistent with well-established customs law concerning classification of power units. As a general rule, two machines imported and intended to be used together, such as a...
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