[00:00:00] Speaker 01: paper fire products versus the United States. [00:00:40] Speaker 03: Good morning, and may it please the Court. [00:00:43] Speaker 03: Your Honor, this case, as you know from the brief, is about items that have been referenced as glass bulbs, frangible bulbs, thermal release devices. [00:00:53] Speaker 02: Has the tariff schedule been amended so that this problem doesn't exist in the future, that you've been given a no-duty classification for these items? [00:01:06] Speaker 03: The short answer to the question is not today. [00:01:09] Speaker 03: There was a period of time that was referenced in the briefs to this amendment, this miscellaneous tariff bill, this 9904 tariff number. [00:01:15] Speaker 03: That expired. [00:01:16] Speaker 03: Those are good for three years at a time when Congress passes those laws. [00:01:20] Speaker 03: So as of today, 2016, the answer is no. [00:01:23] Speaker 02: So the same problem we're dealing with here is going to come up in the future? [00:01:28] Speaker 02: For sure. [00:01:29] Speaker 02: It's an ongoing issue. [00:01:31] Speaker 01: But ongoing with the exception of one period of time where it wasn't? [00:01:36] Speaker 03: What happened was the duty rate in the tariff schedule, what I'll call the default duty rate under customs position, was this 5% duty. [00:01:44] Speaker 03: So Tyco approached Congress to have this miscellaneous tariff bill passed, the MTB. [00:01:50] Speaker 03: And that's good for three years. [00:01:51] Speaker 03: That eliminated it. [00:01:52] Speaker 03: There are budget constraints, of course, with Congress when they waive duties in these scenarios. [00:01:57] Speaker 03: It was renewed after that first three-year period, [00:01:59] Speaker 03: But not to zero. [00:02:01] Speaker 03: In other words, instead of going from five to zero, it went from five to 0.9%. [00:02:05] Speaker 03: That also expired. [00:02:06] Speaker 03: So today, the environment we're operating in is the full 5% duty. [00:02:10] Speaker 02: And these items continue to be important. [00:02:12] Speaker 03: Yes, yes. [00:02:14] Speaker 03: And the record does not reflect, although Council and I spoke this morning as physical samples if you wanted to see them. [00:02:21] Speaker 03: We provided them to Mr. Jones. [00:02:22] Speaker 03: There are pictures of them, but to the extent the court wanted to actually see it and touch it and hold it in its hand. [00:02:28] Speaker 03: And Mr. Jones has the samples. [00:02:30] Speaker 02: In terms of 8424, there's an exception and then two exceptions to the exception. [00:02:37] Speaker 02: Do you agree that absent the exceptions to the exception that these constitute articles for technical uses of glass? [00:02:48] Speaker 03: I'm sorry, Ron. [00:02:48] Speaker 03: I didn't hear the very first part of your question. [00:02:51] Speaker 02: As I understand it, the first issue we're dealing with here is 8424. [00:02:57] Speaker 02: there's an exception 8424 for articles for technical uses of glass. [00:03:02] Speaker 02: And then there are two exceptions to the exception. [00:03:05] Speaker 02: And you and the government have argued about whether you come within the exceptions to the exceptions, right? [00:03:10] Speaker 02: My question is, and I think it's not entirely clear from the briefs, is if we were to determine hypothetically that neither of the exceptions to the exceptions apply, would the exception that is articles for technical uses of glass apply? [00:03:27] Speaker 03: I think I got lost here in some of the exceptions to the exceptions to the exceptions. [00:03:30] Speaker 03: But at the end of the day, our position is, to the extent the court rules, and maybe this is the hypothetical you're asking me, that we don't fall within the two exceptions that we've been arguing about in the book, the high proportion and the static. [00:03:43] Speaker 03: You say, no, those don't apply here. [00:03:44] Speaker 03: I'm just talking about the plain language of that note. [00:03:47] Speaker 02: Then you're outside 8424. [00:03:50] Speaker 03: Well, it's chicken or an egg, of course, right? [00:03:52] Speaker 03: Because that note says, [00:03:53] Speaker 03: articles of glass, we would have to then decide, is this an article of glass? [00:03:56] Speaker 03: And there's the reference in that language in the note, not in the two exceptions, in the note that references heading 70-20. [00:04:02] Speaker 03: So we still need to decide, are we in heading 70-20 as an article of glass? [00:04:06] Speaker 03: I'm not following this. [00:04:08] Speaker 02: As I understand your argument, you come within 84-24 because you're in within one or the other of the two exceptions to the exception, right? [00:04:20] Speaker 03: Your Honor, yes, if I may say I [00:04:22] Speaker 03: We've been arguing that to say that note that blocks us from going into 84-24 doesn't apply because of those two exceptions, right? [00:04:31] Speaker 03: That's what's been in our briefs. [00:04:33] Speaker 02: But do you agree that if you don't come within those two exceptions to the exception that you're outside of 84-24? [00:04:41] Speaker 03: No, and I'm not trying to fight the hypothetical. [00:04:45] Speaker 03: I'm saying no because we have to resolve them. [00:04:48] Speaker 03: is an article of glass, meaning just GRI-1 analysis. [00:04:52] Speaker 03: What does that mean? [00:04:53] Speaker 03: Articles of glass. [00:04:56] Speaker 03: And I don't believe that the resolution of that question is tied to those two exceptions that you were asking about. [00:05:02] Speaker 03: So if I discard those and say, you tell me Mr. Rohl, forget those two exceptions, we don't agree. [00:05:07] Speaker 03: Am I then an article of glass? [00:05:10] Speaker 03: I would say, well, let's look at 70-20, and what does it mean to be an article of glass? [00:05:13] Speaker 03: Because it's not just glass. [00:05:14] Speaker 02: So you're saying that the same issue with respect to 70-20 exists with respect to the exception in 84-24. [00:05:24] Speaker 02: That is, whether it's an article of glass. [00:05:26] Speaker 03: Yeah, we have to resolve, as the essential character of this thing, glass or not. [00:05:29] Speaker 03: OK. [00:05:31] Speaker 03: And I think when we resolve those two issues, to stay with your hypothetical by saying, you don't meet those two exceptions there, because it's not a high proportion. [00:05:39] Speaker 03: or it's not mechanical, to me that does not resolve the essential character question. [00:05:44] Speaker 02: Okay, I understand what you're saying. [00:05:45] Speaker 02: What about this, the government relies on this Brussels history to interpret the tariff schedules here. [00:05:54] Speaker 02: I can't understand from the briefs what the connection is between the Brussels history and these provisions here. [00:06:03] Speaker 02: Is there some indication that [00:06:05] Speaker 02: Congress relied on the Brussels history in enacting these tariff provisions? [00:06:09] Speaker 02: Was it somehow implementing the Brussels provisions? [00:06:13] Speaker 03: What's the connection? [00:06:14] Speaker 03: It's sort of in legislative history, if I can use that phrase, the explanatory notes. [00:06:20] Speaker 03: We have a current tariff schedule is law. [00:06:22] Speaker 03: We have explanatory notes that are in effect today. [00:06:24] Speaker 03: And these are two generations ago, I feel, or two versions of the tariff ago that the government has brought up to try to explain this phrase high proportion. [00:06:35] Speaker 03: they're wholly irrelevant. [00:06:36] Speaker 02: But what's the connection between Brussels and the US tariff schedules? [00:06:43] Speaker 03: I mean, there is none in that from the Brussels tariff nomenclature, and today we have the Harmonized tariff schedule. [00:06:48] Speaker 03: The connection that would be today's tariff schedule was modeled on, sort of derived from, was born out of, or kind of morphed from the Brussels tariff nomenclature. [00:06:59] Speaker 02: What do you mean morphed from? [00:07:01] Speaker 02: I don't understand that. [00:07:03] Speaker 02: I mean, there must be [00:07:04] Speaker 02: some kind of legislative history? [00:07:06] Speaker 03: Well, it's not a secret that the Harmonized Tariff Schedule of the United States, in effect today, was from a treaty in 1989 that we signed, that many countries agreed to. [00:07:16] Speaker 03: And that nomenclature that came from the treaty was based on the Brussels Tariff Nomenclature. [00:07:22] Speaker 02: OK, so this treaty obligated the United States to implement the Brussels agreement? [00:07:27] Speaker 03: Regarding the Harmonized Tariff Schedule. [00:07:30] Speaker 03: In other words, all these tariff schedules are buckets, right? [00:07:33] Speaker 03: They're categories. [00:07:34] Speaker 03: We said 84-24, they said 70-20. [00:07:37] Speaker 03: In the Brussels tariff nomenclature, there were 70-20 articles of glass, 84-24. [00:07:41] Speaker 03: So they're based on their derived ground. [00:07:43] Speaker 02: But Congress was trying to implement the Brussels agreement, is that what you're saying, in the harmonized tariff schedule? [00:07:51] Speaker 03: I do not believe. [00:07:52] Speaker 03: I've never understood in my 22 years of practice that we're implementing the Brussels agreement. [00:07:57] Speaker 03: We're implementing the harmonized tariff system. [00:08:00] Speaker 03: There's a law that enacted our tariff schedule was to enact a harmonized tariff schedule. [00:08:05] Speaker 00: And in doing that, they just look to the... Correct. [00:08:08] Speaker 03: Because remember, there's an in-between step here, which we're missing. [00:08:11] Speaker 03: Today is the HTS, we all talk about in all these tariff cases. [00:08:15] Speaker 03: Before that was the TSUS, right, we call it the TUSUS, which was completely different than the Brussels tariff nomenclature. [00:08:21] Speaker 03: But that was the law and effect in this country before the HTS. [00:08:24] Speaker 02: Right. [00:08:24] Speaker 02: But what I'm trying to get at is, what's the connection between the Brussels nomenclature? [00:08:29] Speaker 02: I mean, what did Congress think it was doing that makes the Brussels [00:08:35] Speaker 02: agreement relevant here? [00:08:40] Speaker 03: To my knowledge, there's not language in the law that was passed enacting the HCS or in the legislative history that said our intent here is to give effect to the Brussels tariff limit culture. [00:08:51] Speaker 03: But to the extent it is relevant, which again we've contended it's not, I think it actually supports our position rather than hurts it, if I can just comment on that briefly. [00:08:59] Speaker 03: And the relevance the government is saying is we have this phrase, high proportion, in the explanatory notes. [00:09:03] Speaker 03: And we're trying to figure out what that means in the record. [00:09:05] Speaker 03: In the Joint Appendix, Judge Rustani also was asking for information. [00:09:09] Speaker 03: What does this mean, high proportion? [00:09:12] Speaker 03: And the government said, well, when they were creating these notes in the Brussels Tariff Nomenclature, they had a discussion. [00:09:18] Speaker 03: There was a discussion. [00:09:19] Speaker 03: All that's reprinted in the Joint Appendix. [00:09:22] Speaker 03: There wasn't, there was people, like in this case, were wrestlers, who put glass in something else. [00:09:26] Speaker 03: So did we treat it as glass, or as something in chapter 84, as what we're contending? [00:09:30] Speaker 03: And then the Germans brought a sample, if you will, to the Brussels committee and said, what do we do with this? [00:09:37] Speaker 03: It was discussed. [00:09:38] Speaker 03: Sample of what? [00:09:39] Speaker 03: Of the article that was in question in 1969, which was an evaporator unit. [00:09:43] Speaker 03: So there was discussion about saying, well, let's borrow the note that goes in the Brussels tariff nomenclature with chapter [00:09:50] Speaker 03: the chapter 90 provision that talks about manly, that when you have glass and something else, chapter 90 resolves it by saying it's got to be mainly the other thing for it to not be glass. [00:10:00] Speaker 03: And the government has said, well, that should be how we interpret high proportion, because if you look at the history, that's what it means. [00:10:05] Speaker 03: But there's discussion there in those pages that are in the appendix, and I can give you a specific page in a moment, about how that would be arbitrary to use a percentage. [00:10:13] Speaker 03: And when you look at what they actually adopted, they didn't adopt the actual language from that provision, 9025, that used manly. [00:10:18] Speaker 03: They said high proportion, so we're still left with what does that mean? [00:10:22] Speaker 02: In the Brussels nomenclature. [00:10:25] Speaker 03: In the explanatory notes to the harmonized system, yes. [00:10:30] Speaker 03: Which are based on the Brussels tariff nomenclature. [00:10:33] Speaker 02: In the Brussels nomenclature, they had an equivalent of 84-24, right? [00:10:38] Speaker 02: That is correct. [00:10:39] Speaker 02: In that one, did they use mean or high proportion? [00:10:44] Speaker 03: In the Brussels tariff nomenclature, [00:10:47] Speaker 03: Again, it depends which year we're talking about. [00:10:50] Speaker 03: Actually, that's not true. [00:10:51] Speaker 03: The explanatory notes always said, and I see them over my time here. [00:10:54] Speaker 03: I'll just try to wrap up to answer your question. [00:10:57] Speaker 03: There's nothing in chapter 84 in the Brussels tariff nomenclature, not in 1969, not in 1970, or any time, that said mainly for chapter 84. [00:11:05] Speaker 02: The mainly reference. [00:11:06] Speaker 02: High proportion? [00:11:07] Speaker 03: High proportion was put in there. [00:11:09] Speaker 03: That is correct. [00:11:11] Speaker 03: And I've eaten up my time here. [00:11:13] Speaker 01: We have a couple more comments. [00:11:15] Speaker 03: I mean, just briefly, I suppose to summarize and to boil it down, our complaint here is, of course, Judge Rastani-Billa made a decision on essential character, which is one of the factors that came up in trying to figure out which is more important. [00:11:29] Speaker 03: When we look at factual, if you look at the joint appendix and the pages that are in there, there's no evidence. [00:11:34] Speaker 03: Yes, she made a conclusion. [00:11:35] Speaker 03: But to me, the issue is where are the facts to support that? [00:11:39] Speaker 03: And when you look at the testimony, there was only one witness in this case. [00:11:42] Speaker 03: And you look at the joint appendix pages of his testimony, and you read what he had to say. [00:11:46] Speaker 03: Over and over again, he made very clear why it was the liquid that was the brains of this thing. [00:11:51] Speaker 03: And we gave the example in our brief, my last comment. [00:11:54] Speaker 03: Again, if there's a fire in this courtroom, what's going to be important is that the fire is put out quickly by the sprinkler system. [00:12:00] Speaker 03: And that's all driven by the liquid, not by the glass. [00:12:03] Speaker 01: Thank you. [00:12:04] Speaker 03: I'm just going to reserve the last three minutes. [00:12:13] Speaker 04: Good morning. [00:12:14] Speaker 04: May it please the court? [00:12:21] Speaker 04: Mr. Roll is right. [00:12:22] Speaker 04: There was one witness in this case. [00:12:24] Speaker 04: And he knows a lot about the products, which is why we used his testimony to support our motion for summary judgment, number one and number two, and our appeal here. [00:12:36] Speaker 04: But he's not qualified to opine on classification. [00:12:40] Speaker 04: That's first Judge Rastani's job and now your job. [00:12:43] Speaker 04: The products here... What about the Brussels? [00:12:47] Speaker 02: What's the relationship between that and the Harmonized Tariff Statute? [00:12:51] Speaker 04: Well, as Mr. Rohl said, it was the predecessor to the various tariff statutes that followed, and there is consistency... I don't understand. [00:13:01] Speaker 02: Brussels is not a predecessor of a U.S. [00:13:06] Speaker 04: statute. [00:13:07] Speaker 04: But it's the international. [00:13:09] Speaker 04: Well, it's not the US statute. [00:13:10] Speaker 04: The Harmonized Tariff Schedule is an international. [00:13:14] Speaker 02: We have a US statute. [00:13:15] Speaker 02: Right. [00:13:15] Speaker 02: I'm trying to understand what this US statute has to do with the Brussels nomenclature. [00:13:21] Speaker 04: It is the predecessor to the Harmonized Tariff Schedule. [00:13:25] Speaker 04: The Harmonized Tariff Schedule of the United States is the adoption of the Harmonized Tariff Schedule, which goes up to the six-digit subheading. [00:13:35] Speaker 02: The US part. [00:13:35] Speaker 02: And that's something where? [00:13:36] Speaker 02: From Brussels? [00:13:38] Speaker 04: from the Harmonized System Committee. [00:13:40] Speaker 02: I do not understand any of this at all. [00:13:42] Speaker 02: You've got to help me. [00:13:45] Speaker 02: There's a US statute. [00:13:47] Speaker 02: There's a Brussels nomenclature. [00:13:48] Speaker 02: Why should I look to the Brussels nomenclature to interpret the US statute? [00:13:53] Speaker 04: Because it's been consistent, and it is the predecessor to what ultimately became the Harmonized Tariff Schedule of the United States. [00:14:07] Speaker 04: recommends adoption of certain provisions when they're changed. [00:14:13] Speaker 04: And Congress generally simply adopts those. [00:14:17] Speaker 04: The ITC also can encourage eight-digit provisions, which is the last subheading in the Harmonized Tariff Schedule. [00:14:25] Speaker 04: But there's been consistency throughout. [00:14:27] Speaker 04: from the Brussels tariff nomenclature, through the tariff schedule of the United States, through the HTS US. [00:14:34] Speaker 04: And in particular, Chapter 84. [00:14:36] Speaker 02: But you're not telling me why I should look to Brussels. [00:14:39] Speaker 02: You say it's a predecessor. [00:14:41] Speaker 02: A predecessor, you can't have something from Brussels be a predecessor of a US statute. [00:14:47] Speaker 04: You can have it as guidance. [00:14:49] Speaker 04: I'm not saying it's legislative history. [00:14:51] Speaker 02: Who said that it provides guidance? [00:14:55] Speaker 02: When they enacted the U.S. [00:14:56] Speaker 02: statute, the U.S. [00:14:57] Speaker 02: tariff schedule, is there some indication that they were trying to implement the Brussels nomenclature or looking to Brussels nomenclature? [00:15:05] Speaker 02: What's the connection? [00:15:09] Speaker 04: The connection is that there is consistent history throughout the various international customs and tariff treaties. [00:15:17] Speaker 04: And Brussels tariff nomenclature was one that was in effect in the 60s. [00:15:24] Speaker 04: It's not that there's a law that says you must look to the Brussels tariff nomenclature, but there has been a consistent course throughout. [00:15:33] Speaker 04: And if you actually look to the tariff schedules in the United States and before that the Brussels tariff nomenclature, and currently you'll see a consistency in the organization and in the provisions. [00:15:46] Speaker 04: And so if you're looking for what is intended to be precluded or included in a particular provision, [00:15:54] Speaker 04: It's not, the explanatory notes help you. [00:15:58] Speaker 02: I'm sorry, this is not helping me understand what the connection is, but I guess you better go on. [00:16:04] Speaker 04: Okay. [00:16:04] Speaker 04: Well, in any case, there is, there was a provision similar to the claim provision here in the Brussels tariff nomenclature. [00:16:15] Speaker 04: And it excluded technical articles of glass. [00:16:19] Speaker 04: And there was an entire discussion as to whether or not an explanatory note ought to go in there. [00:16:24] Speaker 04: that talked about equating the explanatory note for chapter 90. [00:16:31] Speaker 04: And eventually, in 1972, an explanatory note was put into the Brussels-Tamford tariff nomenclature. [00:16:39] Speaker 04: That explanatory note has carried through precisely both the one to 9025 and the one to chapter 84, note 1c, through today. [00:16:50] Speaker 04: So there is a consistent history in how [00:16:53] Speaker 04: technical articles of glass that are excluded from Chapter 84 have been considered. [00:17:00] Speaker 04: So whether or not you think there's a direct line between Congress enacting the HDSUS and the Brussels tariff nomenclature, there's certainly a consistency in the language used throughout not only the statutory provisions or the tariff provisions, but the explanatory notes that guide you in determining whether or not something [00:17:22] Speaker 04: is or is not in chapter 84. [00:17:24] Speaker 00: What about the change from mainly to high proportion? [00:17:27] Speaker 04: That, honestly, I can't explain. [00:17:30] Speaker 04: I'll be honest with you, I don't know why. [00:17:32] Speaker 00: It's different language, though. [00:17:33] Speaker 04: It is different language. [00:17:34] Speaker 04: But the term high proportion appears in a number of different provisions in the HTSUS, primarily without quantification. [00:17:45] Speaker 00: Mr. Roll, in his brief... Do you agree that the words mainly and high proportion probably have different meanings, because they're different words, right? [00:17:53] Speaker 02: Not if you look back to the Brussels Tower of Nomenclature as Judge Rustani did because... Was the Brussels Nomenclature for 84-24, did it ever use the term mainly? [00:18:04] Speaker 04: No, it did not. [00:18:05] Speaker 04: But the committee notes, the CCC, the Customs Corporation Council notes, indicate very clearly that by a majority vote, there was an intent to carry the [00:18:20] Speaker 04: and from 1925 into 84. [00:18:23] Speaker 04: I don't know why the language ended up being high proportion, but it was clearly intended in 1925 that there would be more other materials than glass in order to take it out of chapter 84. [00:18:39] Speaker 04: But there's also other provisions, and they're in the appendix, that use the term high proportion in the explanatory notes. [00:18:47] Speaker 04: Now remember, we're not talking about statutory language. [00:18:49] Speaker 04: We're talking about the explanatory notes, which are really just used for guidance here. [00:18:54] Speaker 04: So there is no statutory language talking about high proportion. [00:18:57] Speaker 04: To the extent you do use the explanatory notes for guidance, as we hope you should, most of the times when high proportion is used in the explanatory notes, high proportion isn't quantified. [00:19:11] Speaker 04: There's no parenthetical. [00:19:13] Speaker 04: Mr. Roll has latched on to a single parenthetical from [00:19:19] Speaker 04: the hard rubber provision that talks about as much as 15% or up to 15%. [00:19:30] Speaker 04: And that is clearly not the provisions that are at issue here. [00:19:38] Speaker 04: And what's omitted is also a notation that the only other parenthetical with a quantity in it is for heading 3214, which deals with [00:19:48] Speaker 04: mastics that are based on plastic, and that says up to 80%. [00:19:52] Speaker 04: So if you look in the context for what high proportion means, the context here is that there's a clear line starting in the 1960s that high proportion, in this explanatory note, was intended to follow the one for heading 90, which says mainly. [00:20:11] Speaker 04: In fact, it still says mainly. [00:20:13] Speaker 04: And there's no indication that high proportion throughout [00:20:16] Speaker 04: the explanatory notes is intended to mean 15%. [00:20:19] Speaker 04: Remember, the explanatory... Suppose we reject that. [00:20:22] Speaker 02: Where are we? [00:20:23] Speaker 02: Suppose we don't look to the Brussels agreement or the Brussels nomenclature or we don't think it's informative even if we do look to it. [00:20:31] Speaker 02: Suppose we reject that relationship. [00:20:34] Speaker 02: We're just stuck with construing high proportion standing alone. [00:20:40] Speaker 04: Well, I would still argue that 16 to 32 percent is not a high proportion when you're talking about the relative weight. [00:20:50] Speaker 02: Is it a fact question? [00:20:53] Speaker 02: What's a high proportion? [00:20:57] Speaker 04: Yes, but Judge Rastani determined that it wasn't a high proportion here factually because 16 to 31 percent was not a high proportion. [00:21:14] Speaker 04: And I know you don't want to hear about the Brussels Tower Phenomenclature one more time, but in the BTN, Brussels Tower Phenomenclature, when they were talking about mainly high proportion, they actually were talking about weight. [00:21:32] Speaker 04: And here, that's what we're talking about too, the weight of the glass versus the weight of the liquid. [00:21:37] Speaker 04: Tyco may consider that an arbitrary way of determining something, but it's a very traditional factor in determining whether something has a particular character. [00:21:55] Speaker 04: The question here is actually, the first question, there's actually two questions that have to be answered, is whether no one c precludes classification in the claim provision. [00:22:04] Speaker 04: And as we bargained in our brief, [00:22:07] Speaker 04: It does, because there's no question this is a technical article. [00:22:11] Speaker 04: TICO's claims are all in the technical use provision. [00:22:17] Speaker 04: And the question is simply whether they have the character of glass. [00:22:21] Speaker 04: And as Mr. Rohl indicated, we have samples for you. [00:22:26] Speaker 04: And so you can look at them. [00:22:27] Speaker 04: And that certainly can be part of your consideration, whether they appear to be glass. [00:22:37] Speaker 04: Explanatory notes talk about losing the character of glass. [00:22:40] Speaker 04: So the presumption is that something that is glass starts out as glass. [00:22:45] Speaker 04: And the question is, what if anything has been done to it to cause it to lose the character? [00:22:51] Speaker 04: Now, the explanatory notes provide a couple of guidelines. [00:22:54] Speaker 04: One is when there's a significant amount, a high proportion of another material. [00:23:00] Speaker 04: And the other is when the glass is simply static and the other component or the other material is [00:23:07] Speaker 04: is mechanical. [00:23:09] Speaker 04: So that would be the first question to be answered, whether or not note 1C applies here. [00:23:14] Speaker 04: And the second question, if you determine that note 1C does in fact apply to remove these products from chapter 84, is whether or not they were properly classified in heading 7020, which would require an essential character analysis to determine whether the liquid component or the glass provides the essential character. [00:23:36] Speaker 02: There's a slight variation between... But I guess I'm wondering if under this essential character analysis, which applies to 70-20, whether that doesn't also apply to 84-24 in determining whether these articles were technically uses of glass. [00:23:52] Speaker 02: So that if we were to determine that these are not articles of glass, that would mean [00:24:01] Speaker 02: both that they were not within 70-20, and it also would mean that they were within 84-24, correct? [00:24:09] Speaker 04: The way I view the... Yes and no. [00:24:14] Speaker 04: There's a character issue, and then there's an essential character issue. [00:24:17] Speaker 04: And they're very close, but there are slight variations. [00:24:21] Speaker 04: And the explanatory notes, which would be question one, does note one C preclude this? [00:24:26] Speaker 02: Talks about the character. [00:24:27] Speaker 02: Try to help me here. [00:24:28] Speaker 02: If we were to agree [00:24:31] Speaker 02: with taiko that this doesn't come within 70-20 because these are not articles of glass, right? [00:24:41] Speaker 02: Wouldn't that also resolve the question of whether they come within 84-24 without looking to those exceptions? [00:24:49] Speaker 04: No, not at all. [00:24:51] Speaker 02: Why is that? [00:24:51] Speaker 04: Well, we wouldn't agree that these bulbs would go in 84-24, even if you disagreed with us on just about everything else. [00:25:00] Speaker 04: And the reason is because these articles are, all of the articles, all frangible thermal bulbs, according to Tyco's own engineer, are made of the same materials. [00:25:11] Speaker 04: They're used in the same way. [00:25:12] Speaker 04: They work the same way. [00:25:14] Speaker 04: And so they should all be classified in the same provision, not necessarily 8424. [00:25:21] Speaker 04: They're all used in thermal devices. [00:25:23] Speaker 04: But that gets to whether or not they're parts. [00:25:26] Speaker 04: And all thermal bulbs should be classified the same way. [00:25:29] Speaker 02: The same way that the temporary jury... So what you're saying is you have another argument under 84-24 as to why these don't come within it? [00:25:39] Speaker 04: Yes, but Judge Rastani did not reach that question. [00:25:42] Speaker 02: I understand. [00:25:43] Speaker 04: I'm happy to address it if you would like, but if you want to reach that question, it ought to be remanded for her to consider that in the first instance. [00:25:54] Speaker 04: Or for whoever gets the case next. [00:25:59] Speaker 04: These articles have the character of glass, so Note 1C will preclude their classification in Chapter 84. [00:26:12] Speaker 04: And the reason is because if you look to the explanatory notes, they don't have a high proportion by weight of non-glass materials. [00:26:20] Speaker 04: And getting to the second guideline provided by the explanatory note, there's not a static glass component with a mechanical liquid component. [00:26:29] Speaker 04: The liquid component is not mechanical. [00:26:31] Speaker 04: It expands by means of something called thermal expansion. [00:26:34] Speaker 04: It means when you heat something, molecules go fast, it expands. [00:26:38] Speaker 04: That's not mechanical. [00:26:40] Speaker 04: Rivets will do that in a building. [00:26:42] Speaker 04: You heat solids and heat most liquids, and they will expand because molecules move faster. [00:26:48] Speaker 04: But that is not [00:26:49] Speaker 04: That's not machine-like. [00:26:50] Speaker 04: That's not akin to how a pump or a motor, which are the examples provided in the explanatory note, are mechanical. [00:26:57] Speaker 04: Pumps and motors are actually on their own classifiable in Chapter 84. [00:27:02] Speaker 04: And some motors are in Chapter 85. [00:27:04] Speaker 04: But that doesn't make this liquid a mechanical component. [00:27:11] Speaker 04: So you can eliminate the mechanical versus static. [00:27:18] Speaker 04: I see I'm into my. [00:27:20] Speaker 04: I'm always mindful of the clock. [00:27:23] Speaker 01: I appreciate that. [00:27:24] Speaker 04: Last sentence. [00:27:27] Speaker 04: Basically, note 1C does not allow the products here to be classified in chapter 84. [00:27:35] Speaker 04: And so you would have to go on to determine whether or not it's the liquid component or the glass component that provides the essential character to determine whether heading 7020 is correct. [00:27:47] Speaker 04: And for that argument, [00:27:49] Speaker 04: I refer to my brief. [00:27:50] Speaker 04: Thank you very much. [00:27:59] Speaker 03: So just quickly, in the three minutes that we have left, we're talking one of the issues is character of glass, or essential character of glass. [00:28:07] Speaker 03: If you've ever shipped something in the mail, a glass, or you've moved, did the moving company come? [00:28:12] Speaker 03: One of the characters of glass is supposed to be that it doesn't break. [00:28:15] Speaker 03: Here, the character of the glass, or this item, is to break. [00:28:19] Speaker 03: Fire sprinkler ultimately operates. [00:28:21] Speaker 03: I would suggest if you look at context here in Chapter 70 where all the glass tariff codes are, those items, none of them are really designed to break. [00:28:28] Speaker 00: That's not the purpose, so... It's designed to break at a certain time, and otherwise it's designed to be applied, right? [00:28:34] Speaker 03: That is correct, but the reason there's a fire sprinkler, according to the testimony of the witness here, [00:28:39] Speaker 03: is to operate when there's a fire, not to just be a decoration in the wall. [00:28:43] Speaker 00: It's not just a decoration. [00:28:44] Speaker 00: I mean, obviously, we don't want the sprinkling system to go off when there's not, in fact, a fire. [00:28:53] Speaker 03: Exactly. [00:28:53] Speaker 03: Yes, I mean, it is playing that important role. [00:28:55] Speaker 03: The load factor that's been referenced in the breeze is obviously an important factor, because nobody wants water sprinkling on them when there's no fire. [00:29:03] Speaker 03: However, that's just one of the functions. [00:29:05] Speaker 03: And the reason people put fire sprinklers are for when there's a fire. [00:29:08] Speaker 03: And that was the testimony of the engineer. [00:29:12] Speaker 03: Regarding the mechanical issue, which was on those two, from the explanatory notes, trying to explain what this exclusionary note 1C means, the government's position in Judge Rastani below was referencing, because it says such as pumps, motors, et cetera, and interpreting from that to say, well, that must mean it has to be some kind of hard or, I don't want to say mechanical, but something like a pump or a motor. [00:29:38] Speaker 03: Yet when you just look at the definition of mechanical, the definition of mechanical is not limited to that. [00:29:45] Speaker 03: It just has to do with relating to physical forces or motion. [00:29:48] Speaker 03: And examples in the dictionaries give examples of mechanical force of wind, mechanical forces on molecules. [00:29:54] Speaker 03: And that's exactly what's happening here. [00:29:55] Speaker 03: The glass is mechanical. [00:29:57] Speaker 03: And as it heats up, those molecules are going to bust or break the glass. [00:30:01] Speaker 03: So to me, and Judge Rastani has said as much, she said, [00:30:05] Speaker 03: definition of mechanical, what we cited below, but I don't think that's the right definition because of those two examples, pumps, motors. [00:30:12] Speaker 03: And I don't think that's a matter of tariff interpretation that we find, it's just some generis where you're trying to figure out what's like the other things, because the tariff, the statute will say A, B, C, and similar items, and the like. [00:30:25] Speaker 03: That's not with languages, it's just simply et cetera. [00:30:28] Speaker 02: What happens here if we determine that [00:30:32] Speaker 02: the government that you're both right, that it comes within 84-24 and also within 70-20? [00:30:41] Speaker 03: I guess, you know, when all else is equal, if you're saying they're both equally applicable, then GRI 3 would kick in and it would be the tariff last in the tariff schedule. [00:30:53] Speaker 02: Which would be 70-20? [00:30:55] Speaker 03: 84-24. [00:30:58] Speaker 03: But I think, you know, again, I don't want to fight the hypothetical. [00:31:01] Speaker 03: To reach that, you would have to have concluded that that note, right, doesn't apply. [00:31:08] Speaker 03: Just quickly on Judge Restonis, and I have 30 seconds left, so I'll make this my last observation. [00:31:12] Speaker 03: Again, she rests on four facts for essential character. [00:31:15] Speaker 03: And in her briefs, we discuss them. [00:31:18] Speaker 03: But I wanted to comment particularly on the duty suspension bill, which is the fourth of her, of the items she relied on. [00:31:24] Speaker 03: Which is, we started this conversation, I think, talking about, is that gone? [00:31:28] Speaker 03: Is this going to be a recurring problem? [00:31:30] Speaker 03: Yes, the law that was enacted by Congress referenced 70-20 for these items. [00:31:34] Speaker 03: But that's because Tyco was handcuffed, proverbially, by customs position. [00:31:38] Speaker 03: So to get around that, or to get the relief from that, we had to reference 70-20 when we drafted the bill to present to Congress to have it passed. [00:31:47] Speaker 03: I'm out of time. [00:31:47] Speaker 03: And as with opposing counsel, I want to respect the talk. [00:31:50] Speaker 03: And I thank you for. [00:31:51] Speaker 01: Thank you. [00:31:53] Speaker 01: Thank you very much. [00:31:53] Speaker 01: We thank both sides for cases submitted that concludes our proceedings for this morning. [00:31:58] Speaker 01: Thank you. [00:31:59] Speaker 01: All rise. [00:32:02] Speaker 01: The Honorable Court is adjourned from day to day.