dissenting,
with whom Baldwin, Judge, joins.I respectfully disagree with the majority conclusion that arundo •donax should be classified, for tariff purposes, as unspun fibrous vege-f able material rather than wood. From a botanical standpoint alone, 'the majority’s review of the evidence and its conclusion would appear to be valid. However, the majority opinion fails to adequately consider appellant’s contention that:
>.[T]he lower court made a fundamental error in law in interpreting the tariff tterin for “wood” in a strict scientific, botanical, and technical sense when there-*21is a complete absence oí supporting evidence of any such leigslative intent as to the meaning of the generic term “wood,” and the common meaning of the term as long-established by judicial precedence is contrary to that scientific, botanical and technical interpretation.
In Nylos Trading Co. v. United States, 37 CCPA 71, 74, 81, C.A.D. 422 (1949), this court held that:
Tariff acts are not drafted in the language of science, and even though imported merchandise would fall within the term of the tariff act if considered as scientific terminology, such a classification would not be proper for customs purposes unless-the scientific meaning coincided with the common meaning or commercial designation. * * * Where the scientific meaning of a term differs from the common meaning, expert testimony as to the scientific meaning has no probative value. Testimony as to the common meaning itself is only advisory, as the court may take judicial notice of such meaning.
$ ‡ ^ ^
The scientific or botanical classification established by appellant is, of course, of no probative value where that classification differs from the common or commercial understanding of the term.
See also Hummel Chemical Co. v. United States, 29 CCPA 178, 183-84, C.A.D. 189 (1941); Meyer & Lange v. United States, 6 Ct. Cust. Appls. 181, 182 (1915).
It is my view that the court below erroneously resolved the present-controversy on the basis of the scientific or botanical meaning of wood and on the expert testimony which, as a whole, appears to lead to the-conclusion that from the botanical viewpoint, arundo donax cannot be considered, technically, to be a wood. The Customs Court justified this approach by a finding that it was the intention of the legislature-in passing the 1962 Tariff Schedules to usé botanical definitions. That, court quoted the following from the 1960 Tariff Classification Study as evidence of that intent :
In the present tariff act some of rate descriptions are based upon the common names of various types of wood. The common names applied to wood are frequently used rather loosely, and this, at times, has caused classification problems. In the proposed schedules, this -matter has been settled- by the use of botanical names to supplement the common names and thereby provide certainty to the proposed revisions.
The Customs Court interpreted that language more broadly than I believe is reasonable and proceeded on the apparent assumption that-all botanical classifications, including the generic term “wood,” are to-be read in light of technical definitions.
The recited portion of the Tariff Classification Study merely explains why the TSUS contains parenthetical references to botanical* designation alongside common name.classification descriptions in some-cases. For example, item 202.03 provides for lumber, softwood, and,, particularly, “Spruce {Picea spp.).” Such parenthetical insertions; *22.appear throughout items 202.03-202.62 in this form — common name followed by bontanical specification. In short, the TSUS demonstrates precisely what was meant by the Tariff Classification Study. Botanical designation is given to supplement the common name classifications of species of wood in those eases where any confusion regarding the meaning of the common names was anticipated.
No botanical designation or definition is .parenthetically inserted next to the common generic name “wood” in the Tariff Schedules. There is, therefore, no evidence that the meaning of wood was intended to be assessed on a technical or a scientific basis. It follows that the well-settled rule of interpreting classification on the basis of •common, rather than scientific, meaning applies.
The predecessor of this court had -occasion to consider the scope of the term “wood” in Steinhardt & Bros. v. United States, 9 Ct. Cust. Appls. 62, 66 (1919): A narrow definition urged by the Gov•ernment was rejected. The court stated:
We think that lexicographers and common knowledge warrant us in saying that wood is a very broad term and includes not only material obtained from •exogenous plants, but also like substances obtained from palms, from bamboo, which is a giant grass, and from some ferns which are herbaceous plants.
The common meaning of “wood,” as set forth in Steinhardt, is pre.•sumed to have continued unless it has been changed by subsequent legislation.- See United States v. Great Pacific Co., 23 CCPA 319, 324 (1936).
- The majority admits that arundo donax would fall within the Stein-.hardt characterization of “wood.” However, Steinhardt is dismissed •as having been decided under a different statute, and a narrow, bo-tani'cally precise,, definition- of “wood” is implicitly substituted.
Unless compelled by statutory change, I see no reason to abandon the flexible, common-meaning approach taken in Steinhardt. I believe that the TSUS was not enacted with an intent to change the. common, or tariff, meaning of “wood” or adopt scientific definitions for all botanical terms. I would follow settled principles of construction and resolve the present controversy on the basis of the common meaning ■of the term “wood.”
Considering the testimony at trial as a whole, the samples of arundo donax of record, which are themselves “potent witnesses,” American Express Co. v. United States, 39 CCPA 8, 11, C.A.D. 456 (1951), and the common meaning .of “wood” judicially determined and not changed by legislation, I am of the opinion that arundo donax is properly embraced, for tariff purposes, within the meaning of “wood.” I believe the Customs Court should have sustained appellant’s claim for classification under item 200.40, and I would reverse.