[00:00:00] Speaker 04: 2623 GRK, Canada versus the United States. [00:00:05] Speaker 04: Mr. Josie. [00:00:07] Speaker 02: Good morning, Your Honors. [00:00:08] Speaker 02: May it please the Court. [00:00:08] Speaker 02: This case is on appeal because the trial court incorrectly determined that the common and commercial meaning of a wood screw is a thread forming screw that can only be used to attach wood to wood or other fibrous material. [00:00:22] Speaker 02: In fact, a wood screw is any screw that is designed to anchor into wood [00:00:26] Speaker 02: or other resilient materials, regardless of the materials that is being affixed to the wood. [00:00:32] Speaker 02: A wood screw can also have a cutting thread, as long as a screw is designed to cut or create threads into wood or other resilient materials. [00:00:37] Speaker 04: Now, I understand there's a lot of, we got a record here, and there are lots of definitions and references and all of this stuff thrown in. [00:00:45] Speaker 04: But I guess what seems to me a major difference between you and the other side and the Court of International Trade is you kind of are limiting it to what the screw is anchoring. [00:00:56] Speaker 02: Correct. [00:00:57] Speaker 04: And my question is, what is the strong basis in the record that that's the ground upon which we should decide this? [00:01:08] Speaker 02: Well, if you look at the screw itself and the structure of the screw, these types of screws are threaded for the bottom two thirds of the shank. [00:01:15] Speaker 02: And so the material where the thread is actually being made is going to be the anchor material, which is here wood. [00:01:21] Speaker 02: It's indisputed that [00:01:24] Speaker 02: these screws are used to be anchored into wood. [00:01:27] Speaker 02: Even when they're being used with other materials such as sheet metal or fiberboard and things of that nature, the bottom material is always the anchor material. [00:01:36] Speaker 02: And so when you have these screws where the bottom two-thirds of the thread, or excuse me, the bottom two-thirds of the shank are the part that is actually threaded, when you're looking as to what type of material the threading is actually creating female threads in, it's always going to be that anchor material. [00:01:50] Speaker 02: In fact, with the R4 screws, it has a second type of threading called CEE threading, which is directly above the W-cut threads, which make up the majority of the threading. [00:02:01] Speaker 04: No, maybe I'm misunderstanding you or maybe you misunderstood my lack of clarity, which is my question isn't whether you're right or wrong in terms of whether it's anchored in wood. [00:02:10] Speaker 02: My question is why that should be the determinative criteria. [00:02:13] Speaker 02: I think it should be the determinative criteria because that is what the definitions, the explanatory notes, [00:02:18] Speaker 02: the expert opinions all suggest. [00:02:21] Speaker 02: Joe Greenslade, who was the government's expert here, he is the head of the committee that writes the ANSI ASME standards, explained that a wood screw is a screw that is designed to be anchored into wood and that it is really the anchor material that is the important material for what is defining what the screw is. [00:02:43] Speaker 03: I didn't see anything in any of the [00:02:47] Speaker 03: different dictionary definitions or the other source materials other than expert testimony that referred to anchored in wood. [00:02:58] Speaker 03: Am I missing something? [00:03:00] Speaker 02: No. [00:03:01] Speaker 02: I mean, I would agree with that, that there is not an explicit reference to the term anchoring. [00:03:05] Speaker 02: Instead, you see terms such as insertion, which I think can be substituted for the term anchoring. [00:03:12] Speaker 02: But again, you're right that there aren't [00:03:14] Speaker 02: The word anchoring is not explicitly used in these definitions. [00:03:18] Speaker 02: That being said, the definitions also do not explicitly reference the material that is being attached to the wood. [00:03:24] Speaker 02: And so the court is going to have to make a decision here as to what's more important. [00:03:28] Speaker 02: Is it going to be the anchor material, or is it going to be the material that is being anchored to the wood? [00:03:36] Speaker 04: Yeah, and on what basis are we supposed to make that decision? [00:03:40] Speaker 04: Ken Stoll said, looking at all of the references or whatever, [00:03:43] Speaker 04: It doesn't rely heavily, or what it's anchored in doesn't seem to be the determiner factor other than some of the expert testimony that you cited, right? [00:03:53] Speaker 02: Again, as I said, I do agree partially with that. [00:03:57] Speaker 02: Again, the expert testimony did say that. [00:03:59] Speaker 02: I think that the dictionary definitions, while they don't use this term anchoring, they really are implying that it is the anchor material when they say things like inserting into wood. [00:04:08] Speaker 03: I don't see that. [00:04:09] Speaker 03: For example, maybe the Oxford [00:04:12] Speaker 03: English Dictionary says that the wood screw is fastening together parts of woodwork or wood and metal, so it does refer to metal. [00:04:20] Speaker 03: The McGraw-Hill Dictionary says it's for use in wood only. [00:04:25] Speaker 03: The academic press says that it's used for wood, but I don't see anything in any of those definitions that talk about insertion or anchoring. [00:04:35] Speaker 03: Instead, it's looking at both of the materials and determining [00:04:40] Speaker 03: what the screw is going through for both two materials. [00:04:44] Speaker 03: I don't see anything that emphasizes the anchor, for example, or inserting into wood. [00:04:49] Speaker 02: Yes, but if you look at the Webster's dictionary, that one actually does use the term insertion, and I think that that is the one that I was referring to mostly when I was discussing. [00:04:57] Speaker 02: What's the site for that? [00:04:59] Speaker 02: It's Webster's third new international pointed metal screw formed with a sharp thread. [00:05:04] Speaker 03: Do you have an appendix site? [00:05:06] Speaker 02: I don't have an appendix site too, but I do believe that it is cited in my brief and I can't remember if I can pull up the brief right now. [00:05:13] Speaker 00: So can self-tapping screws be anchored in wood? [00:05:17] Speaker 02: It's the government's position that self-tapping screws cannot be anchored into wood. [00:05:22] Speaker 00: Okay, you're the one relying on the word anchored. [00:05:24] Speaker 02: Yes. [00:05:25] Speaker 00: Okay, so can these self-tapping screws be anchored in wood? [00:05:31] Speaker 02: Self-tapping screws cannot be anchored in wood. [00:05:33] Speaker 02: That's the government's position here, that a self-tapping screw is instead a type of screw that is designed to be anchored into non-resilient materials, so things like slate and all. [00:05:41] Speaker 00: Well, it's designed to be used in those materials, but it can be anchored in wood. [00:05:48] Speaker 02: I mean, I guess that there's a possibility for that. [00:05:52] Speaker 02: It would not be the proper use, I believe. [00:05:54] Speaker 00: Well, that's different. [00:05:55] Speaker 00: Proper use is different from anchoring. [00:05:59] Speaker 02: I mean, I wouldn't say they're of the same... I believe that a self-tapping screw, yes, you may be able to use that in wood in some limited circumstances. [00:06:12] Speaker 02: I don't think that would be the ideal use of a self-tapping screw. [00:06:16] Speaker 02: So we should look at something other than anchored in? [00:06:21] Speaker 02: Not necessarily. [00:06:22] Speaker 00: I think that the material that a screw that... If you have a self tapping screw that can screw itself into and cut its way into metal, are you saying it can't be anchored into wood? [00:06:39] Speaker 02: Can you rephrase the question, sir? [00:06:41] Speaker 02: I don't know if I quite understand you. [00:06:44] Speaker 00: If a self tapping screw [00:06:46] Speaker 00: can cut its way into metal. [00:06:48] Speaker 00: Are you saying that that same screw cannot be anchored into wood? [00:06:53] Speaker 02: I would say that it would not be ideal to anchor that screw into wood. [00:06:58] Speaker 02: I can't say for certain whether or not it could or could not be used in wood under any circumstance, but there are certain physical characteristics of a screw that make it well suited for wood. [00:07:08] Speaker 02: That includes a coarse pitch, [00:07:09] Speaker 02: that includes certain threading. [00:07:11] Speaker 00: Well, I agree with that. [00:07:12] Speaker 00: It's use and it's design. [00:07:14] Speaker 00: Those are the factors we should be looking at, and not necessarily whether something can be anchored into something else. [00:07:20] Speaker 02: I think that it's a combination of both, that you have to look. [00:07:22] Speaker 02: So here, the government proposes definitions that say, look, you should look at the anchor material, but you should be looking at the design characteristics that allow a screw to be anchored into that type of material, right? [00:07:36] Speaker 02: And so the problem with defining [00:07:38] Speaker 02: wood screw and self-tapping screw based solely on a set of physical characteristics is that you need to have a little bit of latitude to allow improvements in wood screws to be defined under the term as well. [00:07:52] Speaker 02: So if you're going to define something as a wood screw is only something that has a gimlet point and coarse threading, if in the future for whatever instance, there may be a new point that comes out that may make a screw exceptionally well to be screwed into wood, [00:08:07] Speaker 03: But that's not what happened here, right? [00:08:09] Speaker 03: I mean, I thought that the Court of International Trade did consider the use and had that in its definition. [00:08:17] Speaker 03: So I don't see where anything happened where only the characteristics of the screw were used to define whether it's a wood screw or a self-tapping screw. [00:08:29] Speaker 02: I agree. [00:08:29] Speaker 02: The first time this case came on appeal, the court had not examined use and then it came on appeal. [00:08:35] Speaker 02: This court provided an opinion that said you should consider use. [00:08:39] Speaker 02: And then the court went down and said, I'm going to examine these various dictionary definitions and determine what the use of these two different types of provisions are. [00:08:48] Speaker 02: And she came up with the definitions of a wood screw as a screw that can only be used to affix wood to wood, and then a self-tapping screw as a screw that can be used to affix non-resilient material to either wood or other non-resilient materials. [00:09:02] Speaker 02: And those definitions just are not tenable. [00:09:05] Speaker 02: If you look at the tariff scheme for screws generally, the term other wood screws is a tariff provision that falls directly under coach screws. [00:09:15] Speaker 02: A coach screw is defined in the explanatory notes as a type of wood screw. [00:09:20] Speaker 02: It is also defined as a screw that is used to attach metal railway lines to wooden sleepers. [00:09:27] Speaker 02: And so to the extent that the tariff [00:09:30] Speaker 02: considers a coach screw to be a wood screw, it would be untenable to say that a wood screw is only something that can attach wood to wood, because a coach screw is a wood screw that is designed specifically to attach metal to wood. [00:09:44] Speaker 02: And so you have this dichotomy there. [00:09:46] Speaker 02: And the only definition that really meshes with this scheme generally is a screw that can be anchored into wood, when you don't look at the material that is actually being anchored to the wood itself. [00:09:57] Speaker 03: Can I ask you a slightly different question? [00:09:59] Speaker 03: Yes. [00:10:00] Speaker 03: This is just, I guess, more of a technical question, but does the distinction between cutting threads and forming threads, does that depend at least in part on the material through which the screw is being inserted? [00:10:15] Speaker 03: It seems to me that it might depend on whether the material can compress or not, at least partly. [00:10:21] Speaker 02: No, I would agree with that completely. [00:10:24] Speaker 02: When you have a non-resilient type of material, [00:10:27] Speaker 02: It doesn't have any elasticity, which is what the definition of a resilient material is. [00:10:32] Speaker 02: So if you have something like sheet metal, you're not going to be able to compress that because it just doesn't compress. [00:10:38] Speaker 02: You're going to have to cut it. [00:10:40] Speaker 02: So instead, this distinction between thread forming and thread cutting, I really don't think is a distinction that the court really should have focused its analysis on. [00:10:50] Speaker 02: Everyone agrees that the screws are thread cutting in this instance. [00:10:56] Speaker 02: The fact is... All screws? [00:10:58] Speaker 02: That all screws are thread cutting? [00:11:00] Speaker 02: No, no, no. [00:11:00] Speaker 02: That all the screws at issue in this case are thread cutting. [00:11:03] Speaker 02: I would never say that all screws are thread cutting. [00:11:05] Speaker 02: In fact, there are many different types of thread forming and thread cutting screws. [00:11:09] Speaker 02: But these screws are thread cutting. [00:11:11] Speaker 02: However, the thread cutting is advertised and is used in fibrous materials. [00:11:16] Speaker 02: If you look at GRK's advertisements and their reference guides and things of that nature, they're always advertising the fact that their W-cut threads, which are [00:11:26] Speaker 02: described as saw blade-like are to be used to cut through fibrous materials, fibrous materials being wood. [00:11:33] Speaker 02: So it's disingenuous to say that a wood screw, or excuse me, that a screw cannot be a wood screw just because it has a cutting thread. [00:11:41] Speaker 02: The explanatory notes say that a wood screw can have a cutting thread and that these cutting threads are explicitly made for the purpose of cutting through fibrous materials. [00:11:57] Speaker 04: Yes, thank you. [00:12:00] Speaker 04: Thank you. [00:12:01] Speaker 04: Morning, Your Honors. [00:12:10] Speaker 01: May it please the Court, my name is Craig Ziegler and it's my privilege to represent GRK Canada in this appeal. [00:12:16] Speaker 01: The district, the lower court, the Court of International Trade, got it exactly right, did exactly what this court directed it to do. [00:12:23] Speaker 04: I'm persuaded by a lot of the stuff, but the thing I can't get by that I haven't seen a good answer to is the answer to the coach screw that your friend brought up. [00:12:33] Speaker 01: I think you've done it. [00:12:33] Speaker 04: Under the definition, isn't he right that it would not be a wood screw under the CIT's definition? [00:12:42] Speaker 01: Well, I think the CITs, well, code screws are a type of wood screw. [00:12:47] Speaker 01: I'll grant you that. [00:12:48] Speaker 01: What the quarter national trade was interpreting was the phrase other wood screws, so apart from code screws. [00:12:54] Speaker 01: Code screws, as I understand it, Your Honor, are used primarily to fix sleepers to railroad ties. [00:13:01] Speaker 01: It's a metal sleeper, but it has a pre-drilled hole. [00:13:04] Speaker 01: So the screw is not penetrating the metal sleeper to fix it to the wooden railroad tie. [00:13:12] Speaker 01: I think the difference here is that in the explanatory notes, in the definitions, a self-tapping screw is a specially hardened screw which is able to, because of that, able to penetrate much harder and denser materials like plastic, sheet metal, slate, the other kinds of things, man-made materials that are not fibrous, not wood screws, not wood. [00:13:38] Speaker 01: So I think the difference here, Your Honor, is that [00:13:41] Speaker 01: A self-tapping screw, because it's able to penetrate without use of a borehole, a separately built drill borehole, those hard and dense materials, that's what separates it from a wood screw and even a coach screw, because the coach screw itself does not penetrate that metal. [00:13:57] Speaker 01: It's anchored in wood, and many times the self-tapping screws may be anchored in wood, but that's not defining the difference, Your Honor. [00:14:10] Speaker 01: As Judge Prose put out, none of the definitions talk about where the machine is being anchored in, where the screw is being anchored in. [00:14:18] Speaker 01: That's not a limiting factor in any of the definitions, any of the industry standards that have been published by the ANSI and ASME, and it's not in the explanatory notes either. [00:14:32] Speaker 01: Whether the screw is anchored in wood or something else is immaterial because it's still got to connect two different things. [00:14:38] Speaker 01: That's what a fastener does. [00:14:39] Speaker 01: It connects one thing to another. [00:14:41] Speaker 01: And it's got to penetrate the hard and dense materials, the slate, the sheet metal, the man-made materials, before it can actually get in to anchor anything. [00:14:51] Speaker 01: The other thing about anchoring your riders is that it's undisputed that drywall screws, the custom service classifies them as self-tapping screws. [00:15:02] Speaker 01: Drywall screws are oftentimes anchored in wood, but they're oftentimes anchored in metal. [00:15:09] Speaker 01: In commercial construction situations, frequently you have metal studs, not wooden studs that drywall is being entered into. [00:15:17] Speaker 01: The customs bureau concedes that those are self-tapping screws, even if they're anchored in wood. [00:15:24] Speaker 01: So the anchoring is not supported anywhere in any of the [00:15:29] Speaker 01: the authoritative sources of meaning that the courts are intended are supposed to look at to figure out what the interpretation of the tariff terms really is. [00:15:39] Speaker 01: The district court here, the Court of International Trade, did it exactly right. [00:15:44] Speaker 01: It's wrong. [00:15:45] Speaker 01: pursuant to a long-standing, well-established precedent by this court, it's got to figure out what the common and commercial meanings of the tariff terms are by figuring out how it's used in the real world. [00:15:57] Speaker 01: You look at dictionary definitions, all the dictionary definitions say wood screws are used only in wood, while that limitation does not appear in definitions of self-tapping screws. [00:16:08] Speaker 01: The difference between self-tapping screws is what they can penetrate, not what the ranker did. [00:16:14] Speaker 01: Clearly the district court got that right. [00:16:17] Speaker 01: This definition, and again on the thread forming thread cutting distinction, if you look at the standards published by ANSI and ASME, they talk about only thread cutting screws are self-tapping screws. [00:16:36] Speaker 01: If it's a thread forming screw, it's necessarily a wood screw. [00:16:41] Speaker 01: With wood, because it's a fibrous material made of plant cells which are squishy to some degree, a thread forming screw can make its way into that material by compressing the material, by shoving it aside and pressing it. [00:16:56] Speaker 01: You can't do that if you have a hard and dense material like sheet metal or plastics. [00:17:01] Speaker 01: You have to be able to cut your way through. [00:17:03] Speaker 01: And that's the distinction that the standards show. [00:17:06] Speaker 01: If it's a thread cutting screw, it's necessarily a self-tapping screw. [00:17:11] Speaker 01: And the district court incorporated those concepts from the definitions, from the explanatory notes, from the standards, from the expert testimony that's out there, and got it exactly right, Your Honor. [00:17:27] Speaker 01: Unless you have other questions, I'm prepared to close. [00:17:32] Speaker 01: Thank you, Your Honor. [00:17:40] Speaker 02: I just wanted to address a few points that my opposing counsel brought up. [00:17:44] Speaker 02: The first one is this notion of pre-drilling and whether a borehole is needed in order for a screw to be entered into it. [00:17:52] Speaker 02: None of the definitions define a self-tapping screw as something that can be self-drilling. [00:17:57] Speaker 02: There's also no definition that says that a wood screw necessarily needs to be self-drilling or not. [00:18:02] Speaker 02: This is not a distinction that really separates the two. [00:18:05] Speaker 02: And I think that it gets confused in common parlance. [00:18:08] Speaker 02: The definition of a tapping screw is something that creates its own threads into a material. [00:18:13] Speaker 02: So oftentimes, a self-tapping screw will need a borehole. [00:18:17] Speaker 02: When it has a borehole, it will create its own threads within that borehole, but it doesn't necessarily self-drill. [00:18:23] Speaker 02: The same thing can be said of a wood screw. [00:18:24] Speaker 02: It's going to create threads in a piece of wood. [00:18:27] Speaker 02: But the distinction between needing something that's self-drilling versus not self-drilling is really not a distinction that I think the court should really take into account in defining these terms. [00:18:40] Speaker 02: Whether a screw is strong enough to pierce through certain harder materials, such as metal or slate and things of that instance, should not make a screw not a wood screw if it is intended to [00:18:55] Speaker 02: you know, be set into wood, and it has physical characteristics. [00:18:58] Speaker 03: What if it's intended to be set into metal and wood? [00:19:03] Speaker 02: If it were intended to be set into metal and wood, well, you're only really going to have one anchor material in that instance, correct? [00:19:09] Speaker 02: So are you saying if wood was attached to metal in that instance? [00:19:13] Speaker 03: So your position really is going to have to rest on this anchoring idea. [00:19:17] Speaker 02: Well, it really would be on the anchoring idea, right? [00:19:19] Speaker 02: And I think that it rests on that because of the structure of the screw. [00:19:22] Speaker 02: So you have a screw, the bottom two thirds are threaded, [00:19:25] Speaker 02: So the material that this is creating a thread in is going to be the anchor material. [00:19:30] Speaker 02: That's the real crux of this and really why the government's position is that you have to look at the anchor material. [00:19:36] Speaker 02: That in connection with the tariff term itself, as we talked about, coach screws cannot be considered a wood screw under the trial court's definitions. [00:19:45] Speaker 02: GRK's representative also admitted in their deposition that there's no such thing as a screw that can only affix wood to wood anymore, that that is an outdated reference to something that just does not exist and is not on the market. [00:19:59] Speaker 02: So to the extent that this court were to ratify the lower court's decision and say that a wood screw is only this type of screw that can affix wood to wood, you're basically saying that there is now this tariff classification out there for something that doesn't exist anymore and is not on the market. [00:20:15] Speaker 02: Every screw that we have on the market today has the ability to affect some non-resilient material to wood. [00:20:21] Speaker 02: That is just the reality of the marketplace today when it comes to screws. [00:20:26] Speaker 04: But isn't that, I mean, just on that point, generally outside of this case, that happens, right? [00:20:31] Speaker 04: I mean, the chair classifications, things change and some products that are covered under clear classifications that were created five, 10, 15 years ago don't exist anymore, right? [00:20:43] Speaker 02: Correct. [00:20:43] Speaker 02: I have five seconds. [00:20:44] Speaker 02: Will you allow me to answer the question? [00:20:45] Speaker 02: No, please. [00:20:47] Speaker 02: Okay. [00:20:47] Speaker 02: Yes, I agree. [00:20:48] Speaker 02: There are certain things that become outdated. [00:20:50] Speaker 02: However, to the same extent, tariff provisions are construed to cover evolutions in certain products. [00:20:58] Speaker 02: So here, if a screw is still intended to be used in wood, even if it can be used in other instances for non-wood-to-wood applications, it would still be covered by this provision of other wood screws. [00:21:10] Speaker 02: And I think that the fact that it's still out there and it's still a tariff provision Congress has not taken out [00:21:15] Speaker 02: of the tariff provisions generally would indicate that this still should have some sort of meaning. [00:21:24] Speaker 04: Thank you.