rates which were the result of negotiation and the concurrence of other affected nations. The legislative history of section 4 (b) reveals that the section was intended to afford increased protection to domestic industry by removing from such industry the burden of commencing an escape clause action, if one proved necessary. Section 4(b) also provided an alternative to the President's "having to employ a trade negotiation” in order to effectuate increased rates of duty. The 1958 legislation clearly did not eliminate the President's authority to negotiate increases, as urged by plaintiffs. On the contrary, Congress provided for an expeditious alternative for the President in the event such negotiations proved impracticable. In 1961, negotiations were undoubtedly practicable and the President did, in fact, negotiate the increased duties with foreign countries, which duties he subsequently proclaimed in Proclamation 3394. We have noted, too, plaintiffs' contention that the President's authority under section under 350 (as amended) was circumscribed since "the escape clause statute is a more specific provision than the general powers delegated to the President under section 350 ***" However this "relative specificity" argument is refuted by House Report 1761, supra, which makes it clear that Congress intended that notwithstanding the availability of escape clause procedures the President could still negotiate increases in duty. Plaintiffs cite United States v. Guy W. Capps, Inc., 204 F. 2d 655 (4th Cir. 1953), aff'd, 348 U.S. 296 (1955); and United States v. The Best Foods, Inc., 47 CCPA 163, C.A.D. 751 (1960). We find that these cases are not pertinent to the present issue and require no discussion. VI. Finally, we turn to plaintiffs' argument that Proclamation 3394 is invalid because the President did not include therein the finding of fact required by section 350 (a) (1). Of course, in making the requisite finding of fact and issuing a proclamation pursuant to section 350, as amended, the President acted "merely in execution of the act of Congress" in effectuating a legislative policy. Cf. Hampton, supra, 276 U.S. at page 411. Plaintiffs' construction of the statute is, in substance, that the requisite finding must be made by proclamation. We disagree, it is only after the enabling finding has been made that the President is authorized to enter into foreign trade agreements and "[t]o proclaim such modifications of existing duties *** as are required or appropriate to carry out any foreign trade agreement that the President has entered into ***" 12 There is no requirement in the statute that the President shall enunciate or recite in the proclamation carrying out the agreement that he made the requisite factual finding. And, of course, this court may not inquire into the existence of the facts calling for the President's action under section 350, as amended. It has long been held that, where Congress has authorized a public officer to take some specific legislative action when in his judgment that action is necessary to carry out the policy of Congress, the judgment of the officer as to the existence of the facts calling for that action is not subject to judicial review. See Bush, supra, 310 U.S. at 380, and cases there cited. Moreover, it may be presumed here that the President properly exercised his authority under section 350, as amended. Consequently, after making the appropriate finding under section 350 (a) (1), the President was authorized to enter into a foreign trade agreement and issue Proclamation 3394. The mere fact that the proclamation did not recite the making of the finding does not invalidate such proclamation. In view of the conclusion we have reached respecting the validity of Presidential Proclamation 3394, we find that the collector assessed the proper rate of duty on the instant bicycles. The protest is overruled, and judgment will be entered accordingly. (C.D. 4187) ACME MARBLE & GRANITE COMPANY V. UNITED STATES Shrines A 10 foot high Carrara marble bas-relief plaque, depicting the Resurrection of Christ from the sepulchre with Mary Magdalen at His feet, imported from Italy in 1962 was classified under paragraph 232(d) of the Tariff Act of 1930 as marble wholly or partly manufactured, with duty at the rate of 21 per centum ad valorem. Plaintiff claimed that it constituted a shrine and, hence, that it was entitled to entry duty free under paragraph 1774 of the same act. Held: judgment for defendant. The plaintiff has failed to overcome the presumption that attaches to the collector's classification and to prove that the plaque is a shrine within the meaning of the tariff laws. SHRINE WHAT CONSTITUTES A SHRINE IN THE TARIFF SENSE Although the concept of the term shrine for tariff purposes has been enlarged in recent years, it is still required that the article have an individuality of its own and that it be the object of special vene 12 Section 350(a) (1) (B) of the Tariff Act of 1930, as amended. ration. The plaque in the instant case, which was installed on the outside wall of a mausoleum and intended to enhance its appearance, failed to satisfy both requirements. Although services were conducted before it, the plaque was merely an aid in the solemnity or veneration inspired by the funeral or memorial services conducted at the mausoleum for those buried there. To constitute a shrine within the intendment of Congress, an object must be the reason or cause for veneration and not merely the scene or place of veneration. SHRINES DONATION TO EXCLUSIVELY RELIGIOUS ASSOCIATIONS Although it has been established that shrines can exist outdoors as well as indoors, the donation of the plaque at bar to St. Mary Magdalen Church, used by it on cemetery grounds it owned and operated, for public use and for profit, did not qualify for free entry under paragraph 1774 which requires that the shrine be used by an association organized and operated exclusively for religious purposes. Daprato Statuary Co. v. United States, 58 Treas. Dec. 127, T.D. 44190 (1930), distinguished. The specificity and strictness of construction applied by this court to the term "solely" under paragraph 1631 (a) of the Tariff Act of 1930 in Moral Re-Armament, Inc. v. United States, 65 Cust. Ct. 68, C.D. 4056, 317 F. Supp. 261 (1970) is likewise applicable to the term "exclusively" as used in paragraph 1774. United States Customs Court, First Division Protest 66/77798-17329 against the decision of the collector of customs at the port of New Orleans [Judgment for defendant.] (Decided March 18, 1971) Stein & Shostak (Marjorie M. Shostak and Arthur E. Schwimmer of counsel) for the plaintiff. L. Patrick Gray, III, Assistant Attorney General (Mollie Strum, trial attorney), for the defendant. Before WATSON, MALETZ, and RE, Judges RE, Judge: The legal question presented in this case pertains to the proper classification, for customs duty purposes, of a 10 foot high white Carrara marble bas-relief plaque imported from Italy in 1962. The plaque depicts the Resurrection of Christ from the sepulchre with Mary Magdalen at His feet. It was classified by the customs officials under paragraph 232(d) of the Tariff Act of 1930, as modified, T.D. 54108, as marble wholly or partly manufactured, and assessed with duty at the rate of 21 per centum ad valorem. Plaintiff has protested and claims that the merchandise is properly classifiable under para graph 1774 of the same act as a shrine or part thereof, and hence admissible duty free. The pertinent provisions of the Tariff Act of 1930 are as follows: Classified under: Paragraph 232 (d), as modified by T.D. 54108 "Marble, breccia, and onyx, wholly or partly Claimed under: 21% ad val." Paragraph 1774, as amended by T.D. 53038 and T.D. 54169 "Altars, pulpits, communion tables, baptismal Free" The record consists of the testimony of one witness for the plaintiff and four exhibits introduced by the plaintiff. The exhibits are various photographs of the plaque in issue, two of which depict the plaque as installed on the outside front wall of the St. Mary Magdalen Mausoleum in Abbeville, Louisiana. There is also a photograph of the mausoleum (with the plaque installed) taken on the occasion of the formal dedication of the mausoleum. The witness, Mr. Frank B. Stewart, is president of the plaintiff corporation, a construction firm which imported the plaque. Mr. Stewart is also president of the Lake Lawn Park, Inc., a cemetery development firm. According to the testimony of Mr. Stewart, although the plaintiff corporation and Lake Lawn Park, Inc. are separate and distinctive entities, they were almost wholly owned by the Stewart family and it was the practice for Lake Lawn Park, Inc. to be retained "as a developer of a project, and the work, in turn is, done by Acme Marble & Granite Company." The record establishes that Lake Lawn Park, Inc. was retained to develop a structure in Abbeville for the St. Mary Magdalen Church. It was to be used as a community type mausoleum for its parishioners in the St. Mary Magdalen Cemetery which it owned. The mausoleum was to be similar in design to one developed by Lake Lawn Park, Inc. and constructed by Acme Marble & Granite Company in a community nearby for a private cemetery. Mr. Stewart testified that in the Abbeville project, it was the wish of his late father, then president of the corporations, to donate the plaque in question to further enhance the appearance of the building. Mr. Stewart, who was assistant secretarytreasurer of the corporations at the time the project came into being, stated that Lake Lawn Park, Inc. entered into a contract with St. Mary Magdalen Church under which it assumed "total responsibility of developing and returning to the church the building free of all liens and claims, plus a portion of the proceeds." The contract further called for the mausoleum to be built by Acme Marble & Granite Company, the plaintiff herein, and for Lake Lawn Park, Inc. to serve as exclusive agent in selling the individual crypts to the parishioners of the church. As for the proceeds of sale, and the financial arrangements among the parties, Mr. Stewart explained: "The selling price [of the crypts] is a price for the use of it for entombment, or the right to use, and the cost that the individual pays to Lake Lawn, in turn, a portion of this goes to pay for the cost of the building. And on a given formula, a portion of the proceeds of this goes to the church for the remuneration of their land, for perpetual care, and for the income which they would derive from a project such as this." Pursuant to contract, Lake Lawn Park, Inc. handled all business transactions, including the advertising of the crypts for sale. From "the individual selling price of the crypts" it received payment for these services as did the plaintiff for the construction of the mausoleum. On cross-examination Mr. Stewart emphasized that the church received a portion of the sales price not only "for the use of the land, for perpetual care" but also as "their income as a normal procedure in this type of project." Mr. Stewart testified further that "the cost or the selling price to the public [was] the controlling factor in what the proceeds, or the general return, or the general income, gross income, of the mausoleum will yield." He stressed that the price, for the construction of the St. Mary Magdalen Mausoleum, did not include the cost or installation of the plaque since it was presented, without charge, to the St. Mary Magdalen Church in Abbeville. Mr. Stewart was present on the occasion of the dedication of the mausoleum and had seen the plaque several times since its installation. On those occasions, funeral |