[00:00:00] Speaker 01:
Hi.

[00:00:00] Speaker 01:
Good morning, ladies and gentlemen.

[00:00:02] Speaker 01:
We have six cases before the court today, only three of which are being argued.

[00:00:10] Speaker 01:
The other three have been submitted for the court's consideration on the briefs.

[00:00:15] Speaker 01:
The three that are being argued, of those three, we start with case number 152076 Schlumberger technology corp versus the United States.

[00:00:30] Speaker 01:
And I understand, Ms.

[00:00:31] Speaker 01:
Lee, that you want three minutes for rebuttal.

[00:00:33] Speaker 01:
Is that correct?

[00:00:36] Speaker 01:
Yes, Your Honor.

[00:00:37] Speaker 01:
Okay.

[00:00:38] Speaker 01:
You may begin.

[00:00:38] Speaker 02:
May I please the court?

[00:00:48] Speaker 02:
In rejecting customs classification of the province, the trial court made three errors.

[00:00:52] Speaker 03:
Ms.

[00:00:52] Speaker 03:
Lee, would you agree that the common meaning of to shape is to give a mass a definite form?

[00:00:59] Speaker 02:
It's a desired form, Your Honor.

[00:01:02] Speaker 02:
It's a particular or proper form.

[00:01:05] Speaker 02:
That's the definition that was cited by the court, cited by both of the parties.

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The explanatory notes state that shaping is to form as nearly as possible to its desired form.

[00:01:19] Speaker 02:
The statute itself says fired after shaping.

[00:01:22] Speaker 02:
So it's just shaping, Your Honor.

[00:01:26] Speaker 03:
You argue on page 29 of your opening brief that the CIT improperly grafted a requirement under HTSUS 6909 and 6914 that products entering under either heading be precisely shaped.

[00:01:43] Speaker 02:
Yes, Your Honor.

[00:01:44] Speaker 02:
In fact, that's one of the errors that I was about to point out, that the court failed to recognize that the profits are shaped and

[00:01:50] Speaker 02:
in fact, read into the definition of shaping the requirement for precision.

[00:01:54] Speaker 02:
Because again, the statute does not have such a requirement.

[00:01:57] Speaker 02:
The statute nearly says fired after shaping, focusing on the end result in the fact that the good is shaped, not the method of shaping, which in this case happens to be agglomeration or granulation.

[00:02:11] Speaker 01:
But the variation is huge.

[00:02:14] Speaker 01:
There's 100% variation.

[00:02:15] Speaker 01:
Are you saying that something can be shaped and it can be, but it doesn't

[00:02:19] Speaker 01:
every single one can be shaped differently?

[00:02:22] Speaker 02:
Well, in fact, nothing in nature is the same.

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It's never exactly the same.

[00:02:28] Speaker 03:
Oh, the snowflake argument.

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I was going to say that's a philosophical argument.

[00:02:31] Speaker 02:
Well, in fact, though, what's significant here is that Schlumberger actually has specifications.

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They created these specifications.

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So that's OK.

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They dictated that it was all right to have certain sizes.

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And in fact, the industry that they serve

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wants those sizes, 20, 40, 40, 70.

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These are very small measurements.

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And so if you're looking at these very, very small propents, and they are shaped in terms of Radisson spheresty because they have the highest values on the chromine Schloss chart, it's like those are very precisely shaped.

[00:03:05] Speaker 02:
So to have those specifications and to manage that.

[00:03:07] Speaker 03:
If they're so precisely shaped, why do they have to sieve them?

[00:03:12] Speaker 02:
Sieving is not a shaping process.

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Sieving is nearly a sorting, a quality control, quality assurance process.

[00:03:19] Speaker 02:
And in fact, Schlumberger is also the one that's here.

[00:03:21] Speaker 00:
Sorting for what?

[00:03:22] Speaker 00:
For shape or for size, or what?

[00:03:25] Speaker 02:
For size.

[00:03:26] Speaker 00:
Only for size.

[00:03:26] Speaker 02:
Well, it could be for shape as well, because in manufacturing processes, it is possible that, just like anything, something could be manufactured off specification.

[00:03:35] Speaker 02:
So even a mug could have something that's a little bit off spec.

[00:03:39] Speaker 03:
If your argument is correct,

[00:03:42] Speaker 03:
Is it the government's position that importation of pelletized iron ore across the Great Lakes is importation of ceramics?

[00:03:51] Speaker 02:
No, it's not, Your Honor.

[00:03:53] Speaker 02:
In fact, that's a very interesting point because here we need to consider the entire process, the entire process of manufacture.

[00:04:01] Speaker 03:
I know how they make pelletized iron ore.

[00:04:04] Speaker 02:
So I'll bet you do, Your Honor.

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I really do.

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And I'm not trying to say that iron ore is ceramic.

[00:04:11] Speaker 02:
No.

[00:04:11] Speaker 03:
In fact, what we're trying to say is that ceramic is- They agglomerate the ore and they bake it before they ship it.

[00:04:21] Speaker 02:
But that should also be a preparatory step in order to extract the metal.

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or for transportation purposes.

[00:04:27] Speaker 02:
In this case, we have a ceramic, which is inorganic, nonmetallic, shaped, and fired.

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And three of those things are undisputed.

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It's inorganic.

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It's not a metal.

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It has been fired.

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So the only question is whether or not it's been shaped.

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And when you have specifications like what Schlumberger has, they specify these things.

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It's like this is not just agglomeration randomly.

[00:04:48] Speaker 01:
The briefing sort of confuses the

[00:04:52] Speaker 01:
standard of review a little bit and tries to paint all of this as a pure question of law, there are certain components of classification that are factual determinations.

[00:05:02] Speaker 01:
So on the shaping point, in concluding that these particular products are not shaped, isn't that a factual conclusion to which we are supposed to give deference?

[00:05:14] Speaker 02:
In this particular case, the parties stipulated to all the facts.

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So Your Honor, no, we submit that you have all the facts before you, which are stipulated.

[00:05:23] Speaker 02:
There are specifications.

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They are produced.

[00:05:25] Speaker 01:
Well, whether a product is shaped.

[00:05:27] Speaker 01:
Now, there's two different issues.

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One is how you define shaping under the classification.

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And the other is whether a particular product is shaped.

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And isn't the latter?

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I mean, the other side didn't stipulate that these were shaped, right?

[00:05:41] Speaker 02:
Correct.

[00:05:42] Speaker 01:
So why isn't that a factual determination?

[00:05:45] Speaker 02:
Well, Your Honor, again, it's like you are correct in the first instance is a legal issue.

[00:05:50] Speaker 02:
What's the meaning of shaped?

[00:05:51] Speaker 02:
What's the meaning of shaping?

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It's like in the latter issue, we submit that the stipulated facts will demonstrate that it's, in fact, been met.

[00:05:59] Speaker 02:
Because of the specifications, because it's attained the highest level on the Cron-Mein-Schloss chart, there is no value of one imperfect sphere on the Cron-Mein-Schloss chart, or really anywhere.

[00:06:10] Speaker 02:
Even a machine ball bearing does not achieve one.

[00:06:13] Speaker 02:
At that point, it's like your honors can take a look at the stipulated facts and apply those facts to what you deem to be the definition of shaving hair.

[00:06:21] Speaker 03:
What's the unifying principle under 6909?

[00:06:24] Speaker 02:
The unifying principle there is ceramic ware for technical use.

[00:06:29] Speaker 02:
So you have ceramics, wares, which are merely just articles, commodities or goods, manufactured articles, and then for technical use.

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Ceramic troughs.

[00:06:41] Speaker 03:
Ceramic wares for laboratory chemical or other technical uses, tubs, pots, jars, similar articles of a kind used for the conveyance or packing of goods.

[00:06:58] Speaker 03:
Well, Your Honor, the... How does the subject manage?

[00:07:02] Speaker 03:
As Judam generis, what's the unifying characteristic and how does the subject merchandise possess it?

[00:07:11] Speaker 02:
Well, Your Honor, we're looking at ceramic ware for technical use.

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And separated by semicolon, so this is what we should be looking at.

[00:07:19] Speaker 02:
The explanatory notes for that heading all provide for ceramic articles that are used technically.

[00:07:28] Speaker 02:
And in fact, the trial court erred here in terms of failing to see that there are two named exemplars in the explanatory notes that are very similar to the proposite issue here.

[00:07:39] Speaker 02:
The first is grinding balls.

[00:07:41] Speaker 02:
Grinding balls are very similar in the way they look, and they can be very similarly manufactured.

[00:07:46] Speaker 02:
And that's in the record as well.

[00:07:49] Speaker 00:
What does the record tell us about the acceptable variation of shape for grinding balls?

[00:07:57] Speaker 02:
The acceptable variation?

[00:07:59] Speaker 00:
Right.

[00:08:00] Speaker 00:
So suppose the record said grinding balls are as close as humanly possible to spheres that would roll smoothly.

[00:08:10] Speaker 00:
then this wouldn't be so similar.

[00:08:13] Speaker 00:
What does the record tell us about grinding balls?

[00:08:16] Speaker 00:
The other one seems to me pretty darned.

[00:08:19] Speaker 00:
This is the little cylinders.

[00:08:25] Speaker 02:
What are they called?

[00:08:26] Speaker 00:
Oh, the ration rings.

[00:08:27] Speaker 00:
The ration rings.

[00:08:27] Speaker 00:
And those are shaped by any standards.

[00:08:30] Speaker 00:
But I'm curious about the grinding balls.

[00:08:34] Speaker 00:
I mean, are they like marbles?

[00:08:36] Speaker 00:
You could roll them perfectly smoothly.

[00:08:39] Speaker 00:
This is not like marbles.

[00:08:41] Speaker 03:
Grinding balls are used in a ball mill, right?

[00:08:43] Speaker 02:
Yes, correct.

[00:08:45] Speaker 03:
When a company orders grinding balls for its ball mill, are they ordering something that's exactly the same size?

[00:08:56] Speaker 02:
Your Honor, I'm not really familiar in terms of the sizing.

[00:09:00] Speaker 02:
It's like versus propens.

[00:09:02] Speaker 02:
Propens have to be a very, very certain range.

[00:09:04] Speaker 02:
I'm not entirely sure about the range.

[00:09:06] Speaker 02:
But in terms of what they look like,

[00:09:08] Speaker 02:
And that's in the record.

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There was a picture.

[00:09:11] Speaker 02:
I'm not sure if your honor saw that.

[00:09:14] Speaker 02:
But they are round.

[00:09:16] Speaker 02:
The patents tell you that they're supposed to be spheroid, which is basically spheres, and that they can be manufactured through a granulation disk, which is exactly what we have here.

[00:09:27] Speaker 02:
So in terms of those similarities, they're also packed in bulk.

[00:09:30] Speaker 02:
And there's a lot of them that you need to use at one time.

[00:09:33] Speaker 02:
So in terms of that, those are very similar.

[00:09:36] Speaker 01:
Are you using the words wares and articles coextensively?

[00:09:44] Speaker 02:
Wares are our manufactured articles.

[00:09:46] Speaker 02:
Yes, that's our position.

[00:09:48] Speaker 01:
So they're both the same, so you don't differentiate between them?

[00:09:51] Speaker 02:
No, not much, Your Honor, not at all.

[00:09:53] Speaker 01:
So given the size of these things, are you saying that one individual round piece is an article?

[00:10:03] Speaker 02:
Each, yes, but they must be used together.

[00:10:07] Speaker 02:
But that is not as relevant to the classification only because lots of things are used with a lot of them, like rashing rings or grinding media, grinding balls.

[00:10:22] Speaker 02:
Simply because you can't use one of them, that doesn't take it out of the heading.

[00:10:28] Speaker 02:
And ceramic ware for technical uses

[00:10:30] Speaker 02:
It's like, that's ceramic ware.

[00:10:31] Speaker 02:
If you're on a scale that it's not a ware, it's like, then we would submit that it would be under ceramic articles of that same heading.

[00:10:38] Speaker 02:
It's like, again, because they are ceramic, inorganic, nonmetallic, shaped, and fired.

[00:10:45] Speaker 03:
But did you offer any evidence demonstrating to the extent to which Dobins changed the chemical composition of the bauxite powder?

[00:10:57] Speaker 02:
The stipulated facts do state that the dopants are added for a specific reason.

[00:11:04] Speaker 02:
It's on page JA129, where it lowers the firing temperature in order to assist in phase formation to increase crush resistance of the final product.

[00:11:16] Speaker 02:
And they're not burned off.

[00:11:18] Speaker 02:
So if they're not burned off, and that's supposed to be

[00:11:22] Speaker 02:
in contrast to organic binders.

[00:11:24] Speaker 02:
So when you put it in the grinding, in the grinding disk, I'm sorry, in the granulation disk, those binders, water, other certain binders, they're burned off.

[00:11:33] Speaker 02:
So that's why we have an inorganic propon at the end of the firing.

[00:11:37] Speaker 02:
But after firing, these dopants are not burned off.

[00:11:40] Speaker 02:
They remain in the product.

[00:11:42] Speaker 02:
They remain in the product.

[00:11:43] Speaker 03:
You didn't answer my question, though.

[00:11:46] Speaker 03:
Did they change the chemical composition?

[00:11:48] Speaker 02:
It does change the chemical composition.

[00:11:49] Speaker 02:
OK, where's that in the record?

[00:11:54] Speaker 02:
expert states that, but unfortunately I don't have it at my fingertips.

[00:12:02] Speaker 02:
I can look it up and give that to you when I come back.

[00:12:07] Speaker 00:
I thought it was agreed that the two particular dopants at issue here are found sometimes, I don't know how often,

[00:12:16] Speaker 00:
in the same kind of ore that is used here, but there is a, I think stipulation 53 says, a small addition of these dopants to the particular ore that is added here.

[00:12:30] Speaker 00:
Is that right?

[00:12:32] Speaker 02:
That's the stipulation.

[00:12:33] Speaker 00:
I don't know exactly how much, but the important part is that... Let me tell you what I guess, and I'm not going to be able to ask this very precisely.

[00:12:43] Speaker 00:
I assume that

[00:12:44] Speaker 00:
The particular ore used here doesn't have as much of the two dopants as is desirable for the increased hardness and whatever, because they wouldn't be adding it otherwise.

[00:12:55] Speaker 00:
I assume, too, from the CIT's opinion that some of the same kind of ore includes these two dopants.

[00:13:09] Speaker 00:
And you don't dispute that here.

[00:13:14] Speaker 00:
interested in, I think part of Judge Wallach's question is the extent to which those of the addition of the dopants and in particular, is there natural mineral ore that contains the same level of these dopants, either one, as results in this material

[00:13:42] Speaker 00:
from adding the dopants in the grinding milling process.

[00:13:47] Speaker 00:
Could you find this composition elsewhere in the ground?

[00:13:54] Speaker 02:
I don't know.

[00:13:56] Speaker 02:
That I don't know.

[00:13:57] Speaker 02:
Is it possible?

[00:13:58] Speaker 02:
Probably possible.

[00:14:00] Speaker 02:
But what happens here is in order to achieve the correct chemistry, because these are naturally occurring, you will blend pores from various parts of the mine or from other sources.

[00:14:12] Speaker 02:
in order to achieve the chemistry that you want.

[00:14:15] Speaker 02:
And so that's how that happens.

[00:14:18] Speaker 02:
But I don't know, Your Honor, standing here, whether or not it's absolutely possible to find this out.

[00:14:24] Speaker 03:
But the explanatory note, that's where I think we're both driving, is the explanatory notes to 26 say that it may remain normal to the metallurgical industry so long as it does not alter the chemical composition of the basic compound.

[00:14:41] Speaker 03:
And if you're telling us,

[00:14:42] Speaker 03:
You can mix ores from different veins.

[00:14:47] Speaker 03:
And you come up with that composition, then it doesn't alter it.

[00:14:53] Speaker 02:
Except for, Your Honor, that this provision, Chapter 26, provides for aluminum ores.

[00:14:58] Speaker 02:
Just aluminum ores, raw material, except for it being prepared slightly so that it could be used for the extraction of aluminum metal.

[00:15:05] Speaker 03:
This is bauxite, right?

[00:15:08] Speaker 02:
If this is not just bauxite for the provinces, bauxite plus the dopants, it's not naturally occurring as your honor pointed out.

[00:15:15] Speaker 00:
But if you could find exactly the same mixture as find in the ground, maybe by mixing two different veins, exactly what results from taking one vein and adding a dopant.

[00:15:31] Speaker 00:
than the material at issue, which is this result, is something that, in fact, you can find in the ground.

[00:15:36] Speaker 02:
OK.

[00:15:36] Speaker 02:
The difference, though, Your Honors, is that when I talk about mixing and grinding it down into a powder, it's like that's a manufacturing step.

[00:15:46] Speaker 02:
That's not coming directly out of the ground.

[00:15:49] Speaker 02:
There's an artificial manufacturing step there.

[00:15:51] Speaker 02:
So you're not talking about just aluminum ore coming out of the ground, which is what we're talking about in terms of

[00:15:57] Speaker 02:
you know, metallurgical, in terms of bauxite, aluminum ore being used.

[00:16:01] Speaker 00:
The chapter 26 stuff doesn't remove from it.

[00:16:05] Speaker 00:
Is that what we're talking about?

[00:16:06] Speaker 02:
We're talking about that the manufacturing process for the propens contemplates what it needs to do is grind everything down to a powder and then build it back up again into a spherical ball.

[00:16:18] Speaker 00:
I'm sorry, let me just, we may be on different pages here.

[00:16:22] Speaker 00:
Forget about chapter 69 for purposes of this question.

[00:16:26] Speaker 00:
Think only about chapter 26.

[00:16:27] Speaker 00:
Chapter 26 doesn't care about grinding down to a fine powder, does it?

[00:16:34] Speaker 02:
Chapter 26 does not.

[00:16:35] Speaker 02:
Okay.

[00:16:37] Speaker 02:
Does not.

[00:16:38] Speaker 01:
Okay, you're way past your time.

[00:16:40] Speaker 01:
I'll give you two minutes for rebuttal.

[00:16:43] Speaker 02:
Okay.

[00:16:44] Speaker 01:
And we'll add two minutes to

[00:16:46] Speaker 01:
Council's time to the extent necessary.

[00:16:59] Speaker 04:
Good morning, Your Honors.

[00:17:00] Speaker 04:
May it please the court, I'm Alex Schaefer from Coral and Mooring, Fertile Reject.

[00:17:05] Speaker 04:
Your Honors, this crude granular substance doesn't belong in 6909, or indeed anywhere in Chapter 69, because it's not shaped.

[00:17:14] Speaker 00:
When

[00:17:15] Speaker 00:
So, I mean, how do we, in some sense, ordinary English, in some sense it's shaped, maybe not as shaped as other things.

[00:17:22] Speaker 00:
How do we answer that question?

[00:17:24] Speaker 04:
Well, a couple of ways, Your Honor.

[00:17:25] Speaker 04:
I think, and this was sort of the debate that we had in the proceeding below as well.

[00:17:31] Speaker 04:
If I throw a piece of pottery on the floor and it breaks into shards, each of those shards has a shape.

[00:17:38] Speaker 04:
and my throwing it on the floor was the process by which we achieved that shape.

[00:17:42] Speaker 00:
Right, so there's more here.

[00:17:44] Speaker 00:
You want something within a certain range of shapes, and you go through a process to get it into that range.

[00:17:51] Speaker 00:
That's different from whatever the heck results when you throw the pottery on the floor.

[00:17:56] Speaker 00:
Why is that not shaping, just not as much as a teacup?

[00:18:00] Speaker 04:
I think that's because

[00:18:01] Speaker 04:
We're not talking about shaping in the abstract.

[00:18:04] Speaker 04:
We're talking about shaping for the purpose of ceramics.

[00:18:06] Speaker 04:
And that's where I think the difference comes.

[00:18:07] Speaker 04:
And that was the court's intuition as well.

[00:18:09] Speaker 04:
When you're talking about shaping for ceramics, you're not talking about a shape that can deviate in its shape 30% the way a .9 on the Schloss-Krumbine chart can.

[00:18:17] Speaker 04:
A russet potato is a .9 on the Schloss-Krumbine chart.

[00:18:20] Speaker 04:
And you're not talking about a shape that can deviate in size by several hundred percent.

[00:18:24] Speaker 04:
I mean, I think it's worth noting.

[00:18:26] Speaker 04:
that the size range that these propents come in already within the range allows for 100% deviation.

[00:18:30] Speaker 01:
But the government's response to that is that that's by design, right?

[00:18:34] Speaker 01:
I mean, you allow it to have 100% deviation.

[00:18:38] Speaker 01:
You say, as long as it's within this range, it can be a really broad range, but it's still got to be within a certain design.

[00:18:46] Speaker 04:
That's right, Your Honor, about that, of course.

[00:18:47] Speaker 04:
But the question there is whether it's a shaping process.

[00:18:49] Speaker 04:
We're not saying that that specification isn't meaningful.

[00:18:52] Speaker 04:
or that it's not significant for our use of the ultimate product.

[00:18:55] Speaker 04:
But that's a separate question from whether or not that represents a shaping process.

[00:18:59] Speaker 04:
And within the context of ceramics, and certainly technical ceramics, there's no shaping process that yields these sorts of divergent sizes and shapes.

[00:19:09] Speaker 04:
And all of the products that are listed in 6909 illustrate that.

[00:19:14] Speaker 04:
It's inconceivable that those products would be 30% deviation in size.

[00:19:18] Speaker 04:
The government's 30B6 witness referred to them as lumpy.

[00:19:21] Speaker 04:
Their experts said there's an oblong one.

[00:19:24] Speaker 04:
That one's kind of egg-shaped, but that one's got a flat edge.

[00:19:26] Speaker 00:
This is not characteristic.

[00:19:27] Speaker 00:
What does the record tell us about grinding balls?

[00:19:31] Speaker 00:
With respect to the very characteristics you're just describing, namely, permissible variation in size or shape.

[00:19:39] Speaker 04:
My recollection, Your Honor, is that it's quite narrow, but I think the larger point is that grinding balls are made via press or a mold.

[00:19:44] Speaker 04:
In other words, these are processes that are acknowledged to be shaping processes in the explanatory notes and in the ceramics industry.

[00:19:50] Speaker 03:
As Lee said, they were made by agglomeration.

[00:19:56] Speaker 04:
I'm not aware of grinding balls being made by agglomeration, Your Honor.

[00:19:59] Speaker 04:
If that was in the record, I don't recall it.

[00:20:03] Speaker 03:
Because what you're saying is my understanding.

[00:20:07] Speaker 04:
I believe that's correct.

[00:20:10] Speaker 03:
That they're uniformly molded.

[00:20:12] Speaker 04:
not least because their requirements for the surface consistency are more exacting than what we have for our products.

[00:20:27] Speaker 01:
It appears to me that we might have two different potential classifications, neither of which are easy to fit within.

[00:20:34] Speaker 01:
And so the question is, with respect to your proposal, isn't it true that

[00:20:41] Speaker 01:
that the manufacturing process that's used with respect to these propane makes it at least difficult, if not impossible, to extract usable aluminum metal from the box.

[00:20:55] Speaker 04:
I think it does, but I want to be a little bit careful there, because the fact is that becomes true the moment that you calcine box.

[00:21:05] Speaker 04:
In the joint appendix, there's a discussion of the Bayer process.

[00:21:07] Speaker 04:
There's kind of a two-step process that you use to extract aluminum.

[00:21:11] Speaker 04:
from bauxite.

[00:21:13] Speaker 04:
You first put it in a bath of sodium hydroxide, you then precipitate out the aluminum hydroxide, and then you cook it.

[00:21:21] Speaker 04:
But that initial step, the Bayer process, that bath, isn't anything like the temperatures that we use to calcine the bauxite here.

[00:21:28] Speaker 04:
It's a couple of hundred degrees, I believe.

[00:21:31] Speaker 04:
And so once you've calcined bauxite, it's rendered largely unsuitable for use for the extraction of metal, period.

[00:21:39] Speaker 04:
And yet there's little doubt that calcine bauxite falls within 2606.

[00:21:46] Speaker 04:
The explanatory notes start off by saying it covers bauxite and calcine bauxite.

[00:21:50] Speaker 04:
We have refractory-grade calcine bauxite in there at the 10-digit level.

[00:21:54] Speaker 04:
None of those things are suitable for the extraction of aluminum.

[00:21:57] Speaker 04:
And so if the government's interpretation of the way that part of 226 works is correct, you have several headings that are effectively nullities.

[00:22:05] Speaker 03:
Talk a little bit about the doping edition.

[00:22:09] Speaker 04:
Well, Your Honor, the way I understand the doping is that you're essentially sweetening the raw material.

[00:22:14] Speaker 04:
And I thought the idea of mixing ore from different veins was apt.

[00:22:18] Speaker 04:
It may be that in a particular batch, when you do the initial... That was Ms.

[00:22:21] Speaker 03:
Lee's idea, originally, you know.

[00:22:25] Speaker 04:
I'll take it where I can get it, Your Honor.

[00:22:27] Speaker 04:
It may be that the initial batch, when you do the initial chemical analysis of what's in there, has sufficient quantities of those things that it's not required.

[00:22:36] Speaker 03:
Is there anything in the record that tells us about that, either way?

[00:22:40] Speaker 04:
I'm not sure what the record says about it.

[00:22:42] Speaker 04:
I know when we briefed it, we made that very point.

[00:22:45] Speaker 04:
We said there's no difference between a batch of ore that happens to have sufficient quantities of this stuff that you only need to add them and one that doesn't.

[00:22:52] Speaker 04:
And the government's never really come up with a satisfactory response to that.

[00:22:55] Speaker 00:
And that, of course, also- I just want to- what you just said is something more precise than what I remember.

[00:23:01] Speaker 00:
What I remember is- I could be wrong about this- that Judge Stancil concluded

[00:23:09] Speaker 00:
and you had argued that by type of stuff in the post dopant material is no different from what you can find in the ground.

[00:23:22] Speaker 00:
But I'm not remembering the point about the extent of

[00:23:27] Speaker 00:
the two dopants, which I guess we're not allowed to name, which makes it a little bit hard to talk about it here, but that the relative proportions, the amount of the dopant, would be found somewhere in the ground.

[00:23:45] Speaker 04:
Given that the relatively minute amounts that are added, admittedly I can't cite to a portion of the record that suggests this, but given the tiny quantities that are added,

[00:23:56] Speaker 04:
I'm not aware of any reason to think that you couldn't find that ore that has sufficient amounts of those.

[00:24:01] Speaker 04:
And that, of course, yields the workability problem, which Judge Stansu pointed out.

[00:24:05] Speaker 04:
To the extent that you conclude that that is a basis for, that that is a process that kicks you out of 26, it requires one to do the impossible and retroactively work out whether these things were added or whether there were insufficient quantities in the ore in the first instance, which is far from known.

[00:24:20] Speaker 00:
Did he find that one couldn't do it or just you can't basically do it at the dock?

[00:24:26] Speaker 04:
He found that you can't do it at the dock.

[00:24:30] Speaker 04:
I'm not aware of any way that you could do it.

[00:24:34] Speaker 04:
His problem was, as you might expect, customs administrability.

[00:24:44] Speaker 04:
Since I have a little bit of time left, I wanted to talk a little bit more about 26.

[00:24:50] Speaker 04:
And it sets out, as we've discussed in our papers, a two-part test.

[00:24:56] Speaker 04:
So you have to have a mineral of a mineralogical specie used in the industry for the extraction of metals, even if it's intended for non-metallurgical purposes, which we concede.

[00:25:05] Speaker 04:
And then it goes on to say that the headings don't cover minerals that have been submitted to processes not normal to the metallurgical industry.

[00:25:13] Speaker 01:
But the government points out that the explanatory notes say that the processes must not alter the chemical composition of the basic compound, right?

[00:25:23] Speaker 04:
And they don't.

[00:25:24] Speaker 01:
Well, didn't even the court concede that they altered it in a slight way?

[00:25:28] Speaker 04:
Again, the court may have.

[00:25:34] Speaker 04:
I'd have to go back and look at the precise language that the court used.

[00:25:37] Speaker 01:
I think he said, quote, altered in a slight way the composition of the particular batch of the source ore.

[00:25:42] Speaker 04:
I'm not sure that that's accurate, though.

[00:25:44] Speaker 04:
It may have altered the relative proportion of ingredients in the source material.

[00:25:48] Speaker 04:
But I think to me that's different than altering the composition.

[00:25:50] Speaker 04:
The composition remains the same.

[00:25:53] Speaker 04:
I think as a matter of pure chemistry, if you're talking about the addition of impurities or naturally occurring substances that are already there, I don't see that as a change to the composition.

[00:26:04] Speaker 04:
I see it as a change to the proportion.

[00:26:06] Speaker 04:
It's a sweetening of the mix, if you will.

[00:26:11] Speaker 04:
And so to my view, we tick both of the boxes that that note to Chapter 26 sets out.

[00:26:15] Speaker 04:
There's no dispute that they're made of bauxite, and that bauxite is, in fact, the ore used for the extraction of aluminum.

[00:26:23] Speaker 04:
The explanatory notes set out and explain what's meant by process is normal to the metallurgical industry.

[00:26:28] Speaker 04:
And it's as though they were looking at the manufacturing process for propense.

[00:26:31] Speaker 04:
They say, they list among other things, crushing, grinding, screening, agglomeration of powders into grains, balls, or briquettes, whether or not with the addition of small quantities of binders, drying, and calcination.

[00:26:42] Speaker 04:
Those are the self-same processes that we use, or that Sean Brzee's PRC supplier has used, to manufacture the propense at issue.

[00:26:51] Speaker 04:
So you have the mineralogical species used for the extraction of metal, and you've subjected it to processes that are normal to the metallurgical industry.

[00:26:58] Speaker 04:
And we think that's entirely correct.

[00:27:01] Speaker 04:
That's what the lower core found, and it ought to be affirmed here.

[00:27:04] Speaker 01:
And the government argues that the firing that you all do actually affects a change in the crystalline structure.

[00:27:15] Speaker 01:
And that that goes beyond the kinds of examples of alterations that are deemed acceptable.

[00:27:22] Speaker 04:
Well, there again, that runs headlong into the calcination problem because calcination affects the crystalline structure of the product as well.

[00:27:27] Speaker 04:
And indeed, we had the analysis that supported that.

[00:27:34] Speaker 04:
And so once again, if you're going to accept the way that they want to circumscribe the chapter, then you're going to have headings that are

[00:27:42] Speaker 04:
content, because those operations have those same effects.

[00:27:50] Speaker 00:
And you haven't disputed here that the portion of the Chapter 69 definition or description that talks about making something from a fine powder applies here.

[00:28:08] Speaker 04:
I'm sorry, Your Honor, I'm not sure I understand the question.

[00:28:10] Speaker 00:
So if you look at XII-69-2 under shaping, the description, this is, I guess, the version that we're given doesn't really say, but I think it's in the general note.

[00:28:25] Speaker 00:
The manufacturing process that we're talking about in paragraph A comprises the following.

[00:28:30] Speaker 00:
Shaping, the prepared powder, et cetera.

[00:28:35] Speaker 00:
I was struck by the fact that one of your stipulations says,

[00:28:40] Speaker 00:
that first you get particles up to 0.3 millimeters.

[00:28:48] Speaker 00:
And then by agglomeration or whatever the other term is, what's the other term that's used?

[00:28:56] Speaker 00:
As a synonym for granulation, you get particles that can be even smaller in size.

[00:29:03] Speaker 00:
If all the starting stuff was 0.3 millimeters and by going through the granulation you get particles in smaller size, that doesn't sound like powder to me.

[00:29:11] Speaker 00:
But then there's another stipulation, 45 or something, that says it is powder.

[00:29:17] Speaker 00:
It's just that the individual particles in the powder can have this apparently very great range.

[00:29:25] Speaker 00:
So you haven't disputed that.

[00:29:27] Speaker 00:
even though some of the particles in the range can be larger than the product that you're trying to get out of it that were still within the powder restriction?

[00:29:37] Speaker 04:
Well, I think here's what I would say about that, Your Honor.

[00:29:40] Speaker 04:
I think to the extent that there's a reference to powder, the milling of the powder is actually analogous to the granulation in that it's a beneficiation step.

[00:29:51] Speaker 04:
In other words, it's a precursor to a shaping process.

[00:29:54] Speaker 04:
Now, when you have the fine powder, you're then going to use it

[00:29:57] Speaker 04:
with some sort of physical external constraint, a mold or a press or a die or however it is that you're going to use it, to create the precise shape and the precise size that you want to make your lab ware or your whatever ceramic article you're looking to make.

[00:30:13] Speaker 04:
The difference here is we don't have that subsequent step.

[00:30:15] Speaker 04:
We have the beneficiation process, analogous to the milling of the powder, the agglomeration of the granules, but that's it.

[00:30:23] Speaker 04:
There is no shaping process that takes place after that.

[00:30:25] Speaker 04:
And that's where I would see the distinction.

[00:30:28] Speaker 04:
Does that answer your question?

[00:30:30] Speaker 00:
I think enough, yeah.

[00:30:31] Speaker 00:
Thanks.

[00:30:35] Speaker 04:
That was all I wanted to get to, Your Honors.

[00:30:36] Speaker 04:
Thank you.

[00:30:37] Speaker 01:
OK.

[00:30:43] Speaker 02:
Thank you, Your Honor.

[00:30:56] Speaker 02:
In order to attempt to answer your question, so there is a change in the chemistry once they're fired because this is not simply a calcination process that occurs because in this in this manufacturing process is a drying step.

[00:31:12] Speaker 02:
And then there's a firing step.

[00:31:15] Speaker 02:
And so the firing step is what transforms the aluminum oxide into a crystalline form of either corundum, or if it's got any sort of silica in it, it would be mollite, that sort of thing.

[00:31:27] Speaker 02:
So on JA540, our ceramics expert says that in the case of

[00:31:35] Speaker 02:
of these propents, it's like once it's fired, you can't see these mineral phases containing, and I'm not going to say exactly what the elements are.

[00:31:44] Speaker 02:
So in terms of transforming, there is a transformation.

[00:31:52] Speaker 02:
Dr. Cardy goes through in his report, and I believe it's at J574, 75, and also 79, where he explains that firing changes

[00:32:05] Speaker 02:
the composition.

[00:32:06] Speaker 02:
So not only does it drive off the water, but it also forces... I'm sorry, what were your other numbers?

[00:32:11] Speaker 02:
540.

[00:32:13] Speaker 03:
Yeah, I got that.

[00:32:14] Speaker 02:
Okay, 72.

[00:32:16] Speaker 02:
So there's the measured chemistry, but then it changes.

[00:32:19] Speaker 02:
Once you do a mineralogical analysis, you can see that there's a change.

[00:32:26] Speaker 00:
By 72, you mean the paragraph number on page 540?

[00:32:30] Speaker 00:
Yes, yes.

[00:32:31] Speaker 00:
Oh, oh, oh, oh, oh.

[00:32:31] Speaker 02:
So JA540, I'm sorry, Your Honors.

[00:32:34] Speaker 02:
J540, F72.

[00:32:38] Speaker 02:
So that's where Dr. Cardy explains that there is a difference in the measured chemistry versus after it's been fired in the mineralogical structure.

[00:32:49] Speaker 02:
And he does explain how firing changes the inherent nature of aluminum oxides and all of the other elements and compounds.

[00:32:58] Speaker 03:
But we were talking about dopants.

[00:33:03] Speaker 02:
This is the difference in the chemistry.

[00:33:05] Speaker 02:
The dosage is what they do, and it's been stipulated that it lowers the firing temperature to achieve crystalline phases.

[00:33:13] Speaker 02:
So it's a matter of economics, in fact, so that you don't have to raise the kiln to such a high temperature.

[00:33:20] Speaker 02:
So you lower the firing temperature to achieve these crystalline phases in order to meet Schlumberger specifications on hardness, crush resistance.

[00:33:33] Speaker 03:
What you're telling me is that it wouldn't be possible to find bauxite ore which would have that same content and which would do the same thing in the kiln at the various temperatures.

[00:33:48] Speaker 02:
Not that I know of, Your Honor.

[00:33:49] Speaker 02:
I mean, perhaps.

[00:33:50] Speaker 02:
I don't want to say never.

[00:33:53] Speaker 02:
But if they're blending it now, it's unlikely that you would find something exactly like that in nature and that you could just go ahead and take it.

[00:34:03] Speaker 02:
that things are manufactured.

[00:34:05] Speaker 02:
They want certain properties.

[00:34:07] Speaker 02:
Schlumberger has these very specific specifications.

[00:34:09] Speaker 03:
You've got somebody in the audience who's nodding, and it's very distracting.

[00:34:15] Speaker 02:
I apologize, Your Honor.

[00:34:19] Speaker 02:
I'm unaware of that.

[00:34:21] Speaker 01:
I assume it's one of your clients.

[00:34:24] Speaker 02:
Perhaps.

[00:34:27] Speaker 01:
I think your time is up.

[00:34:28] Speaker 02:
OK, so thank you very much, Your Honor.