Acrow, Inc. v. United States

Rao, Judge: The two protests herein involved, which have been consolidated for the purposes of trial, challenge the action of the collector of customs at the port of Los Angeles in classifying certain bracing plates or clips within paragraph 397 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T. D. 51802, as articles not specially provided for, composed of steel, not plated, and in assessing duty thereon at the rate of 2234 per centum ad valorem. It is claimed in said protests that the articles in question are parts of machines, not specially provided for, dutiable at the rate of 13% per centum ad valorem, by virtue of paragraph 372 of said act, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, 86 Treas. Dec. 121, T. D. 52739. The foregoing provisions, insofar as here pertinent, read as follows: Paragraph 397, as modified by T. D. 51802, supra: Articles or wares not specially provided for, whether partly or wholly manufactured: * * * * # * * Composed wholly or in chief value of iron, steel, lead, copper, brass, nickel, pewter, zinc, aluminum, or other metal (not including platinum, gold, or silver), but not plated with platinum, gold, or silver, or colored with gold lacquer: * * * * * * * Other (except slide fasteners and parts thereof)_ 22)4% ad val. Paragraph 372, as modified by T. D. 52739, supra: Machines, finished or unfinished, not specially provided for: * * * * sfi * * Other (except the following: accounting machines; bakery machines; calculating machines; combination candy cutting and wrapping machines; combination cases and sharpening mechanisms for safety razors; cordage machines; food cutting or grinding machines; hydraulic impulse wheels and hydraulic reaction turbines; industrial cigarette making machines; internal-combustion engines of the noncarburetor type; machines for determining the strength of materials or articles in tension, compression, torsion, or shear; machines for manufacturing chocolate or confectionery; machines for packaging pipe tobacco; machines for wrapping candy; machines for wrapping cigarette packages; and tobacco cutting machines)_ 13% % 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 parts The only witness in this case was James C. Frush, an employee of Acrow, Incorporated (hereinafter called Acrow), since 1949, who testified on behalf of plaintiffs. This witness has had considerable experience in the construction industry for many years and has distributed Acrow’s products throughout most of the United States. He referred to the importation, a sample of which is in evidence as plaintiffs’ illustrative exhibit 1, as bracing clips, for use in connection with building shores. They are also used for handrailings on scaffold uprights at extended heights, when standard handrail fittings for scaffolds are not available. Frush described building shores, which he stated are used to support temporary formwork until concrete is set, as follows: [502] Yes, the building shore — this insert tube is one and a-half inches in outside diameter insert bracing tube a fraction over l}i", just to allow enough space to go up and down with a 6" malleave [sic] iron collar, a ring pin, and a chain for adjustment, and your adjustment point is at 6" intervals — in oilher words, if you were to extend the shore to a fourteen foot height, most of the insert tube would be out, protruding beyond the six foot piece, which is what brought these bracing plates into the picture. The bracing clip, according to this witness, is normally attached about 6 inches above the final adjustment point, where the shore is usually the weakest. There, it serves two purposes, "to brace the insert tube to the shore, and it sets up a temporary scaffold so that the workers can make their final adjustment on their beams.” The testimony indicates that the instant angle bracing plates or clips are not used on all jobs where Acrow’s building shores are employed, but only under the following circumstances: On box girder construction, on state highway work in particular, with emphasis on their use where there are curves, banks, cloverleafs, under bridges, or where the shore is doubled-decked, there are many cases where the shore is double-decked and you have a bracing clip on the top insert tube and a bracing clip on the bottom insert tube, so that you have two-way diagonal bracing. In order to avoid possible side-sway and slippage on the transverse formwork, they are used in highway construction. On cross-examination, the witness stated that building shores themselves are equipped with thick bracing plates, welded to the base, which are similar to plaintiffs’ illustrative exhibit 1, except for the screw adjustment. When the type of construction necessitates the use of the imported plates for timber bracing, the opening or neck of the clip is fitted around the insert tube, and timber is placed between the tube and the face of the plate, the two-wing nut adjustments on the back of the plate allowing for the thickness of the lumber. When the plates are used for scaffold handrails, they are fastened to the vertical of the scaffold in the same manner as they are to the insert tube of the shore. The latter is, however, an exclusive and separate operation, and the shore itself is entirely capable of use without the attachment of plaintiffs’ illustrative exhibit 1. Moreover, the clips are not furnished to the importer with the shores, but must be specially ordered. It is the contention of plaintiffs that the “adjustable clip is an integral, component part of the basic shore to which it is attached, without which the machine will not perform one of its important functions.” [Italics quoted.] The cases of United States v. Willoughby Camera Stores, Inc., 21 C. C. P. A. (Customs) 322, T. D. 46851; Peter J. Schweitzer (Inc.) v. United States, 16 Ct. Cust. Appls. 285, T. D. 42872; F. T. Griswold Mfg. Co. v. United States, 36 Cust. Ct. 27, C. D. 1749; United States v. Bosch Magneto Co., 13 Ct. Cust. Appls. 569, T. D. 41434; United American Bosch Corp. v. United States, 1 Cust. Ct. 1, C. D. 1; and J. E. Bernard & Company, Inc. v. United States, 30 Cust. Ct. 473, Abstract 57385, are cited in support of that contention. Counsel for the Government urges that the imported articles are accessories and not parts of machines, for the reason that building shores will perform their ordinary functions without the bracing clips, and the clips themselves have a use which is exclusive of the shores. The rule of law which has long served as a guide in resolving the question of what constitutes a “part” of an article for tariff purposes is that expressed in the case of United States v. Willoughby Camera Stores, Inc., supra, as follows: It is a well-established rule that a “part” of an article is something necessary to the completion of that article. It is an integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article. [Italics quoted.] [503] Of course, in order to determine whether the articles at bar are integral constituents of building shores, without which building shores could not perform all the normal operations for which they are adapted and designed, it becomes necessary to consider the nature and character of building shores, per se. Concerning this aspect of the case, the record as here made presents no clear picture, although the parties seem not to dispute the fact that Acrow building shores are machines. Indeed, this court has so held in the ease of Acrow, Incorporated, et al. v. United States, 32 Cust. Ct. 356, Abstract 57727. While the record in said case has not been incorporated herein, the trial judge having sustained defendant’s objection to such application, and, we might add, quite properly, we find in our decision therein a description of an Acrow building shore which we regard as enlightening. We there stated: According to the record, the involved merchandise consists of two metal tubes, varying in length according to size, so constructed that one fits very closely inside the other. On the outside of the larger tube for a distance of approximately 12)4 inches the tube has square-cut threads. A nut or collar, having a hinged handle with similarly cut threads, is screwed into the threads in the larger tube, and, when this handle is turned, the nut or collar travels up or down this tube, depending on the direction in which the handle is turned, thus transforming motion which is imparted in a horizontal direction into vertical motion. For a distance of more than 12 inches, slots approximately )4 inch wide have been cut lengthwise in the larger tube, extending partially through the threaded portion thereof. Through opposite sides of the smaller tube have been drilled a number of holes for the reception of a metal pin. On the opposite ends of the two tubes have been securely fastened two metal plates, approximately % inch thick and 7 inches square. In these two metal plates are four small holes. By placing the pin in the proper position, either above or below the nut or collar, and turning the nut or collar, these jacks would operate to push or pull. For the purpose of pulling, the witness stated that the four small holes in the two metal end plates were used to nail these ends to the wall or other object to be pulled. Up or down motion imparted to the steel nut or collar, forcing it to travel along the threads, is immediately transferred to the pin and the inner column to which it is attached. Any load resting on top of the plate at the end of the inner column is thus raised or lowered. It is thus apparent that in use Acrow building shores function in very much the same fashion as does the familiar automobile jack. They raise, lower, and support loads. Under the rule stated, supra, the question then arises whether the fulfillment of those operations depends in any essential manner upon the subject bracing clips. The most that can be said of the proof in this case is that it shows that the imported articles assist, rather than implement, the function which a building shore subserves. That the shore can, and does, raise, lower, and support loads, by itself, without the attachment of the involved clips, is frankly admitted. What is accomplished by the clips is the bracing of the shore under certain circumstances of special types of construction work. The brace strengthens the shore and supports additional timber shoring which may be required on a particular construction job, but the shore performs its operations independently of the brace. We perceive no substantial difference in principle between a tripod which supports a camera and holds it rigidly in position, as was the fact in United States v. Willoughby Camera Stores, Inc., supra, and a plate which supports and strengthens a building shore and provides a place for the attachment of additional shoring material. “Each ‘performs its separate function without loss of any of its essential characteristics.’ Whether separate or joined, each is complete in itself, each is a distinct and separate commercial entity.” In the case of United States v. Antonio Pompeo, 43 C. C. P. A. (Customs) 9, C. A. D. 602, the court considered as important, in determining whether a super [504] charger was a part of an automobile, the fact that the superchargers were “dedicated irrevocably for use upon automobiles,” and further stated: The cases cited by appellee, in our opinion, clearly indicate that where an article at time of importation is dedicated to a specific use, the question of whether the article is a part must be determined from the nature of the article as it is applied to that use. Irrevocable dedication to a specific use is not here shown. On the contrary, the record reveals an alternative application for the involved clips entirely independent of the articles of which they are claimed to be parts. They are convenient and useful attachments for installing scaffold handrailings when standard handrail fittings are not available. That when so employed the clips serve as a temporary expedient does not necessarily imply that such use is either perverted or fugitive. In the recent case of United States v. Cody Manufacturing Co., Inc., Rohner Gehrig & Co., Inc., 44 C. C. P. A. (Customs) 67, C. A. D. 639, our appellate court, after reviewing many of the leading cases on the subject of parts, observed: The foregoing authorities are uniform in applying the rule that an element which is not essential to the operation of an article for its intended purpose is not a part of that article. See also United States v. E. Leitz, Inc., 26 C. C. P. A. (Customs) 418, C. A. D. 49; M. Oppleman, Inc. v. United States, 3 Cust. Ct. 227, C. D. 240. Inasmuch as the subject bracing clips are neither essential to the ordinary functioning of building shores, nor dedicated exclusively to use in connection therewith, they are not parts of machines for tariff purposes. The claim in the protests to that effect is, therefore, overruled. Judgment will be entered accordingly.