United States v. Flex Track Equipment, Ltd.

• Decision Date: 20 April 1972
• Docket Number: Customs Appeal No. 5430.
• Citation: 458 F.2d 148,59 CCPA 97
• Parties: The UNITED STATES, Appellant, v. FLEX TRACK EQUIPMENT, LTD., and Border Brokerage Co., Inc., Appellees.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

59 CCPA 97, 458 F.2d 148 (1972)

The UNITED STATES, Appellant, v. FLEX TRACK EQUIPMENT, LTD., and Border Brokerage Co., Inc., Appellees.

Customs Appeal No. 5430.

United States Court of Customs and Patent Appeals.

April 20, 1972.

L. Patrick Gray, III, Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Patrick D. Gill, New York City, for the United States.

Glad, Tuttle & White, San Francisco, Cal., attorneys of record, for appellee; George R. Tuttle, San Francisco, Cal., of counsel.

Before RICH, ALMOND, BALDWIN, and LANE, Judges.

ALMOND, Judge.

This is an appeal from the decision and judgment of the United States Customs Court, Second Division,¹ sustaining the protest against the classification of certain merchandise invoiced as "10 ROLLS COMPRISING 10—ONLY A213 ARCTIC TRACK TREADS RN110."

The merchandise was classified as belting and belts for machinery, of vegetable fibers, in part of rubber or plastics under item 358.10 of the Tariff Schedules of the United States (TSUS), and assessed with duty at the rate of 16% ad valorem. The importers (appellees) claimed that the merchandise is properly dutiable at 8.5% ad valorem under item 692.25, TSUS, as other parts of motor vehicles.

Relevant tariff provisions are as follows:

                Classified
                 Schedule 3, part 4, subpart C
                    Belting and belts, for machinery
                      Of vegetable fibers, or of such fibers
                      and rubber or plastics
                      *      *      *      *      *      *
                 358.10 In part of rubber of plastics ............... 16% ad val
                 Claimed:
                 Schedule 6, part 6, subpart B:
                    Motor vehicles (except motorcycles) for
                     the transport of persons or articles:
                      *      *      *      *      *      *
                   Motor vehicles specially constructed
                    and equippedto perform special services
                    or functions, such as, but not
                    limited to, fire engines, mobile cranes,
                    wreckers, concrete mixers, and mobile
                    clinics ............................................... * * *
                      *      *      *      *      *      *
                   Chassis, bodies (including cabs), and
                    parts of the foregoing motor vehicles:
                      *      *      *      *      *      *
                           Other:
                      *      *      *      *      *      *
                 692.25 Other ...................................... 8.5% ad val.
                

The court below concluded that the imported merchandise was designed and used to function as more than belting for machinery and sustained the protest claim under TSUS item 692.25.

The facts, as established by the testimony and exhibits adduced, are not in dispute and were summarized by the court below:

The material from which the imported merchandise was processed in Canada was made by a rubber company following * * * appellees\' specifications for a "low temperautre stock because most of the machines are going into arctic areas." We measure exhibit 1, the sample in evidence, to be about five-eighths of an inch thick. The core of exhibit 1, a woven ply vegetable fiber, is covered with rubber. The material was ordered in a 15-inch width for use with * * * appellees\' Nodwell RN110 and 75 tracked vehicles. Similar material was also ordered in other widths, depending on the weight and size of the vehicle for which intended.

When the material is received in Canada from the rubber company, it is processed to fit a particular size tracked vehicle. In this case, the material was cut in Canada to specific lengths, either 33 feet and 3 inches or 33 feet and 6 inches (the witness was not sure which, but knew it was a specified length), and 9/16-inch holes were punched throughout the width and length of the cut belting. The holes are evenly spaced, 4 5/16 inches apart, three across the width, in three rows of 82 holes throughout the length. The merchandise (hereinafter referred to as articles), as imported, was in the condition cut to specific length and with holes punched as described. The length, number and spacing of the holes, all of which may vary according to the size vehicle for which intended, fit the imported articles for use on a Nodwell RN110 motor vehicle * * *.

The Nodwell RN110 * * * seems to be a large heavy-weight specially constructed motor driven vehicle. It features a cab for the driver and his instruments. The cab stands mounted high on the front end of the vehicle which appears to have four inside and four outside ground level wheels on each side. At the rear of the vehicle, on each side, there is a drive sprocket (a wheel with teeth to engage links as on a bicycle). The drive sprocket is off the ground, to the rear of the eight ground wheels, so that it sits center between the inside and outside ground level wheels. An off ground turning wheel is similarly situated at the front end of the vehicle. Laced around the front turning wheel, rear drive sprocket, and the inside and outside ground wheels, on each side of the vehicle, are crawler treads or tracks assembled, in part, from the imported articles.

It takes two of the approximately 33-foot imported flexible lengths, punched with holes, to make one track assembly, plus 164 backing plates, 492 track bolts and nuts, and 82 grouser bars (cleats on a tractor wheel or track for increasing traction, Webster\'s Third New International Dictionary, 1968 edition). The track is assembled in the following manner described by Mr. Agassiz:

To assemble the track it would be necessary to lay two belts out on a surface, a flat surface, whether the ground or an assembly table, and putting, inserting the backing plate underneath the track tread or belt and placing the grouser bar on top of the track tread or belt and then inserting the bolts through each one of the three holes in each track tread and tightening same. Then, to install the track assembly on the tracked vehicle it would be a matter of turning the whole assembly over, rolling the

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