[00:00:13] Speaker 04:
The next case is the Gerson Company versus the United States, 2018-10-11.

[00:00:20] Speaker 04:
Mr. Sheppard.

[00:00:23] Speaker 05:
Good morning, Your Honors.

[00:00:24] Speaker 05:
May I please the Court?

[00:00:26] Speaker 05:
My name is Ralph Sheppard.

[00:00:27] Speaker 05:
I'm representing the Gerson Company.

[00:00:29] Speaker 05:
This is a customs classification matter on the correct classification for a lamp that is operated using light emitting diodes.

[00:00:41] Speaker 05:
under the electroluminescence process.

[00:00:46] Speaker 05:
The lower court, in making its decision, paid undue emphasis on extraneous materials, explanatory notes, and we believe did not conduct a proper statutory analysis or analysis of the language of the statute.

[00:01:11] Speaker 03:
But the candles have a decorative function as well as an illumination function?

[00:01:17] Speaker 05:
The illumination function is in a package that is decorative, I would say, yes.

[00:01:24] Speaker 05:
There's no question there.

[00:01:26] Speaker 05:
But in terms of the tariff provisions involved, there's no limitation within the provision 85437070 on

[00:01:41] Speaker 05:
what the article is a part of.

[00:01:44] Speaker 05:
If it's a lamp, it's a lamp, regardless of whether it's a... Of course, 9405 is entitled lamps.

[00:01:52] Speaker 05:
It is.

[00:01:53] Speaker 05:
And 9405 also has specific exclusions that lamps, unless provided elsewhere in the tariff schedule, and also the chapter... 85 similarly has, unless included elsewhere.

[00:02:09] Speaker 04:
But how about the explanatory note in 85 that talks about certain electrical goods not generally used independently, and the lamps at issue are used independently?

[00:02:22] Speaker 05:
Well, that's in 95 as opposed to 8543, I believe.

[00:02:36] Speaker 03:
No, it's 8543.

[00:02:37] Speaker 03:
It's not used independently languages.

[00:02:42] Speaker 05:
Okay.

[00:02:42] Speaker 05:
Well, the explanatory notes are not limiting.

[00:02:46] Speaker 05:
They may be used as a reference, but if the language of the tariff schedule is clear, that the articles of heading 8543

[00:03:04] Speaker 05:
include electric luminescent lamps, there's no limitation on individual use.

[00:03:10] Speaker 03:
Even the heading language, electrical machines and apparatus, how does a decorative candle fall within that?

[00:03:21] Speaker 05:
Because the core element of it is a light, which is an apparatus.

[00:03:27] Speaker 03:
But its primary function really is decorative, right?

[00:03:30] Speaker 03:
I mean, that's what you use tea lights for.

[00:03:32] Speaker 05:
its form and function is illumination, primarily.

[00:03:38] Speaker 05:
Lights come in all different shapes, sizes, purposes.

[00:03:45] Speaker 05:
9405 is not just decorative lamps.

[00:03:50] Speaker 05:
There are multiple headings.

[00:03:54] Speaker 05:
The heading that the court chose was a residual heading that would also include utility lamps or other

[00:04:03] Speaker 05:
industrial lamps or other lamps that have no decorative function.

[00:04:07] Speaker 05:
So decorative is not a controlling feature of 9405, nor is it... What types of electric lamps under your reading would ever fall under 9405?

[00:04:20] Speaker 05:
Well, by Congress creating a subheading under 85-43-70,

[00:04:31] Speaker 05:
entitled electric luminescent lamps, it potentially created an ambiguity that conflicted with the language of 9405.

[00:04:43] Speaker 05:
However, the resolution of that is not to totally strip 854370 of any content.

[00:04:57] Speaker 03:
We're supposed to start our analysis with the headings, not the subheadings.

[00:05:00] Speaker 05:
But the legislative interpretation of these headings encompasses the entire statute.

[00:05:09] Speaker 05:
The statute in this case is the heading and the subheadings under it.

[00:05:15] Speaker 05:
The subheading does not expand, in this case, does not expand the scope of the heading.

[00:05:22] Speaker 05:
In fact, it limits it.

[00:05:25] Speaker 05:
So the court is not faced

[00:05:30] Speaker 05:
with classification of a lamp that you put an incandescent bulb into or a fluorescent lamp.

[00:05:36] Speaker 05:
It's faced with a lamp that is an electroluminescent lamp.

[00:05:43] Speaker 05:
And by putting it there, Congress gave the court the ability to say, OK, well, if there's an ambiguity with 9405, there are restrictive provisions in 9405 that require

[00:06:00] Speaker 05:
classification elsewhere if specified or included.

[00:06:04] Speaker 03:
If that's the case here... Both of the provisions are what you refer to as basket provisions, right?

[00:06:10] Speaker 05:
Well, it's a provision... I'm sorry.

[00:06:17] Speaker 05:
8543 is a basket provision within Chapter 85, specifically, not an overall basket provision.

[00:06:28] Speaker 05:
But it's other articles, but it's other electrical apparatus so that it's defined.

[00:06:42] Speaker 05:
It's not a true basket provision.

[00:06:44] Speaker 05:
It's a basket of other electrical articles.

[00:06:48] Speaker 05:
And the resolution that the court can reach in this, and the decorative elements, I think, is a red herring.

[00:06:58] Speaker 05:
I think that the fact that something is decorative is secondary to its fundamental operation, which is this is a LED device.

[00:07:13] Speaker 05:
It can be doing other things as well.

[00:07:15] Speaker 03:
In this case... Are you saying all LED lamps would fall under this section?

[00:07:22] Speaker 05:
Yes.

[00:07:23] Speaker 05:
Yes, that's... Congress explicitly provided for

[00:07:28] Speaker 05:
electric luminescent lamps in this provision.

[00:07:32] Speaker 05:
They didn't limit whether they're decorative or utilitarian or whatever.

[00:07:38] Speaker 05:
If there's an ambiguity perceived, it can be resolved by Congress in changing the tariff schedule.

[00:07:45] Speaker 01:
What was wrong with the trade court's summation or interpretation of these two

[00:07:53] Speaker 01:
Well, subheadings are saying, okay, 9405 is really more about finished goods.

[00:07:58] Speaker 01:
8543 is really more about components of larger goods.

[00:08:05] Speaker 01:
So the kinds of electric luminescent lamps we're talking about in 8543 are something that's like a headlight for some larger manufactured goods, like an automobile.

[00:08:17] Speaker 01:
Whereas the lamps we're talking about in 9405

[00:08:21] Speaker 01:
are standalone goods, like your tea lights.

[00:08:26] Speaker 05:
Well, that's not, you know, shown in the expressed language of the statute.

[00:08:34] Speaker 01:
But the explanatory notes come through and illuminate what we mean by 8543, right?

[00:08:41] Speaker 01:
Talking in terms of components.

[00:08:45] Speaker 05:
But they are not exclusive and they do not, the explanatory notes cannot restrict

[00:08:51] Speaker 05:
clear language of a statute.

[00:08:53] Speaker 05:
The explanatory notes are an international aid, but the court decisions on this are that if the language of the statute is clear, then no ambiguity is shown.

[00:09:10] Speaker 05:
The language of the statute is clear.

[00:09:12] Speaker 05:
The court agreed that

[00:09:18] Speaker 05:
the elements of these lights were satisfied the threshold heading level, but went on to this decorative element in not completing the first step analysis of Orlando food.

[00:09:39] Speaker 01:
So I guess it's your view that there's just no possible type of electric luminescent lamp that could fall within 9405?

[00:09:49] Speaker 05:
Well, unless there was a specific provision in 9405 for an electroluminescent lamp, that's the other solution to resolving an ambiguity between the two provisions.

[00:10:02] Speaker 01:
But it seems like you want the electric luminescent lamp subheading, assuming we can get all the way down to that subheading, to dominate and control how we read all the other headings and subheadings.

[00:10:18] Speaker 05:
Well, it controls if it's classifiable in that provision.

[00:10:21] Speaker 05:
It's elsewhere classified under the language of heading 9405 and also chapter note 1F.

[00:10:32] Speaker 01:
I mean, are searchlights and spotlights electric luminescent lamps?

[00:10:38] Speaker 05:
I don't know.

[00:10:38] Speaker 05:
Is it an LED searchlight?

[00:10:42] Speaker 05:
You're talking about an LED searchlight?

[00:10:45] Speaker 01:
Yeah, 9405 says lamps and lighting fittings, including searchlights and spotlights.

[00:10:53] Speaker 01:
I'm asking you about searchlights and spotlights.

[00:10:56] Speaker 05:
If the searchlight or spotlight incorporates a light emitting diode as a source of light for the article, yes, it would be classified under

[00:11:13] Speaker 05:
85, 43, 70, 70.

[00:11:14] Speaker 04:
Counsel, you're into your bottle time.

[00:11:17] Speaker 04:
You can continue or save it.

[00:11:19] Speaker 05:
I'll save it.

[00:11:21] Speaker 05:
Thank you.

[00:11:24] Speaker 04:
Ms.

[00:11:24] Speaker 04:
Josane, is it?

[00:11:25] Speaker 00:
Yes.

[00:11:28] Speaker 00:
Good morning.

[00:11:28] Speaker 00:
May it please the court?

[00:11:30] Speaker 00:
The trial court's decision here should be affirmed.

[00:11:34] Speaker 00:
The products are properly classifiable in heading 9405 as a LAMP because they meet the terms of the heading

[00:11:42] Speaker 00:
They also are not otherwise excluded by Note 1F to Chapter 94, which excludes lamps of Chapter 85, because Gerson's products here are not lamps of Chapter 85.

[00:11:53] Speaker 03:
A true response to his very last point, which is essentially that under 9405, everything incandescent is supposed to be covered and everything LED is not.

[00:12:09] Speaker 00:
absolutely no support for that argument or that analysis here.

[00:12:13] Speaker 00:
In fact, the ENs to 9405 instruct that lamps of 9405 can be made of any material and can be made of, can be using any source of light.

[00:12:26] Speaker 00:
So there is no distinction between LED and non-LED.

[00:12:31] Speaker 00:
Lamps are lamps.

[00:12:33] Speaker 00:
There is no distinction and there's no support, and Gerson actually has not provided any support for that,

[00:12:39] Speaker 03:
But you have to get to the notes to get to that point, as opposed to looking just at the headings themselves.

[00:12:44] Speaker 00:
Well, the headings itself, I mean, lamp, when you look at the common, it's understood in the common and commercial meaning of that term.

[00:12:50] Speaker 00:
And when you look at the dictionary definitions of the term lamp, again, there is no distinction between LED or what it's made out of.

[00:12:59] Speaker 00:
The distinction, the only thing is it's a, usually it can mean two things.

[00:13:03] Speaker 00:
It can mean a decorative

[00:13:06] Speaker 00:
usually decorative, even non-decorative finished good, such as, and again, such as a desk lamp, ceiling lamp, a chandelier, those all would fall under 9405.

[00:13:16] Speaker 03:
So what is an electrical apparatus?

[00:13:21] Speaker 00:
What is an electrical apparatus?

[00:13:23] Speaker 02:
Isn't a tea light an electrical apparatus?

[00:13:25] Speaker 02:
Absolutely not.

[00:13:26] Speaker 02:
It's, oh, that's interesting.

[00:13:27] Speaker 00:
I mean, I think in a, if you look at it- Why not?

[00:13:31] Speaker 00:
In a technical sense, would that give, given any context to that heading?

[00:13:36] Speaker 00:
So I guess to answer the first part, can technically a tea light and candle be considered, that operates by battery, considered an electrical apparatus?

[00:13:46] Speaker 00:
Yes, but that doesn't mean that it's included in heading 8543, just because it can at first blush, you know, meets that term.

[00:13:58] Speaker 00:
That heading has to be understood in the context of the terms of the heading and any explanatory notes that provide guidance and

[00:14:06] Speaker 00:
My opponent here has argued that, you know, ENs should be disregarded in this case.

[00:14:13] Speaker 00:
There's no reason for that.

[00:14:14] Speaker 00:
This court has numerous times held ENs and has found them to be offering guidance and persuasive in certain regards, and there's no reason here to disregard them here.

[00:14:27] Speaker 03:
So what would fall under 85-43-70?

[00:14:30] Speaker 00:
85-43 would be more so

[00:14:36] Speaker 00:
what would be considered the actual source of the light or illumination, such as what would commonly be referred to as a light bulb or strips of lights.

[00:14:48] Speaker 00:
So strips, plates of lights.

[00:14:50] Speaker 03:
I thought the light bulb under your analysis falls under 9405.

[00:14:56] Speaker 00:
A light bulb?

[00:14:57] Speaker 00:
No.

[00:14:58] Speaker 00:
Light bulbs fall under chapter 85.

[00:15:01] Speaker 00:
There are no light bulbs that are classified on 94 or 5.

[00:15:04] Speaker 00:
The definition of lamp does include light bulbs.

[00:15:08] Speaker 00:
When you look at the common commercial meaning of lamps, they do include both.

[00:15:13] Speaker 00:
They include finished goods that are desk lamps, decorative or non-decorative, and they provide illumination.

[00:15:23] Speaker 00:
The definition of lamp also includes what's commonly known as light bulbs.

[00:15:27] Speaker 00:
Light bulbs fall in chapter 85.

[00:15:30] Speaker 00:
They do not fall in 9405 at all.

[00:15:33] Speaker 03:
9405... Why didn't you proffer any dictionary definitions or any other examples of what machine or apparatus means under 8543?

[00:15:42] Speaker 00:
I'm sorry, can you repeat that question?

[00:15:45] Speaker 03:
Why didn't you proffer any definitions for what machine or apparatus means?

[00:15:51] Speaker 00:
Well, the ENs heading 8543 do list the types of goods that fall under 8543.

[00:15:58] Speaker 00:
One of the things that it lists, arguably here, would be the electroluminescent devices.

[00:16:04] Speaker 00:
But again, it defines that in the ENs as plates, strips, or panels with light in between.

[00:16:13] Speaker 00:
So it's not a finished good.

[00:16:16] Speaker 00:
It's not a candle or tea-like lamp like Gerson's here.

[00:16:20] Speaker 00:
So the ENs do explain.

[00:16:22] Speaker 00:
You know, and clarify what belongs in 8543 and Geerson's products are not.

[00:16:27] Speaker 03:
So let me give you an example.

[00:16:28] Speaker 03:
What about under cabinet lighting, strips of LED lights?

[00:16:34] Speaker 00:
Strips of LED lights?

[00:16:35] Speaker 00:
I'm not 100% sure about that, but it would not, I don't believe it would be 9405.

[00:16:40] Speaker 00:
I believe that would be possibly 8543 or a chapter 85.

[00:16:46] Speaker 00:
Heading.

[00:16:47] Speaker 00:
It would not be encompassed by 9405.

[00:16:51] Speaker 00:
And again, the ENs to 9405 also provide an illustrative list of what types of goods belong there.

[00:16:59] Speaker 00:
And again, they provide illumination for the room.

[00:17:04] Speaker 00:
Exactly what Gerson's lights here do.

[00:17:06] Speaker 00:
They look exactly like a candle or a tea light, except they're operated by an LED.

[00:17:11] Speaker 00:
That's the only difference.

[00:17:14] Speaker 00:
So they are properly classed

[00:17:15] Speaker 00:
in 9405, that's where they belong.

[00:17:18] Speaker 00:
They don't belong in 8543 and they don't belong in any, they're not included elsewhere or specified elsewhere.

[00:17:25] Speaker 00:
And they're also not a lamp of chapter 85, so they're not excluded by note 1F.

[00:17:30] Speaker 01:
I want to make sure I understand trade classification law here.

[00:17:34] Speaker 01:
I know you have to look at the words of the heading and you have to discern whether they're clear or ambiguous.

[00:17:44] Speaker 01:
And then there are these things called explanatory notes.

[00:17:48] Speaker 01:
Do you only consult the explanatory notes if you conclude that the terms of the heading are somehow ambiguous or less than clear?

[00:17:59] Speaker 01:
Or in interpreting the meaning of the headings, you always consider the explanatory notes in conjunction with the actual words recited in the heading?

[00:18:13] Speaker 01:
I'm just wondering, is that an

[00:18:14] Speaker 01:
always an integrated exercise or is, are the explanatory notes just something of a backstop only if based on just a plain reading of the terms of the heading, you can't figure out what that actually covers?

[00:18:28] Speaker 00:
I think the explanatory is, and again, as this court has found previously, they do provide guidance.

[00:18:33] Speaker 00:
So you would look at them irrespective of whether the headings are perfectly clear or not.

[00:18:39] Speaker 00:
I think they will provide guidance and clarify the terms of a heading.

[00:18:43] Speaker 00:
If it was absolutely clear, a heading was absolutely clear, I guess it could depend on the classifier, but generally you would look at the ENs and unless there's a reason to, persuasive reason to disregard them, they help in defining the breadth of a heading or what constitutes the products they're in.

[00:19:12] Speaker 00:
So here, Gerson also argues that one of the fallacies of Gerson's arguments is that they do jump into the subheading of 8543.

[00:19:22] Speaker 00:
That's improper.

[00:19:25] Speaker 00:
This court in RT Foods has held that you look at the headings first, and if it's not part of the heading, you don't look any further, 20 subheadings.

[00:19:33] Speaker 00:
Gerson constantly keeps in its briefs saying, if EO nominated provided in a subheading, the products that EO nominated provided in a subheading

[00:19:41] Speaker 00:
Again, that's the wrong analysis here.

[00:19:43] Speaker 00:
The proper analysis here is look at the headings, and in particular here, heading 9405, which provides for lamps.

[00:19:51] Speaker 00:
Then you look at note 1F to chapter 94.

[00:19:56] Speaker 00:
Is it a lamp of chapter 85?

[00:19:58] Speaker 00:
No, it's not a lamp of chapter 85.

[00:20:00] Speaker 00:
Therefore, it remains in 9405.

[00:20:03] Speaker 00:
That's the analysis here.

[00:20:05] Speaker 03:
But you've got to admit that there's some

[00:20:10] Speaker 03:
blurring of the lines between these two chapters.

[00:20:14] Speaker 03:
I mean, 94 seems to cover machine lamps, and yet 8543 talks about machines.

[00:20:25] Speaker 03:
And then 85 covers flashlights, which would seem to be a pretty simple apparatus.

[00:20:34] Speaker 03:
So where do you draw the line?

[00:20:36] Speaker 00:
Again, portable lamps, i.e.

[00:20:40] Speaker 00:
flashlights are specifically provided for in Chapter 85.

[00:20:44] Speaker 00:
That's why when you look at the Note 1F to Chapter 94, it says lamps of Chapter 85.

[00:20:50] Speaker 00:
There's only two headings in Chapter 85 that provide for lamps, specifically main lamps.

[00:20:55] Speaker 00:
And that's 8513, which is portable electric lamps.

[00:20:59] Speaker 00:
In other words, flashlights is one of the ones in the subheadings.

[00:21:03] Speaker 00:
Or the other heading is 8539, which provides for what's commonly referred to as light bulbs.

[00:21:09] Speaker 00:
Incandescent fluorescent, that's how lamps, that's how it's listed there.

[00:21:12] Speaker 00:
So there's only two subheadings, I mean two, six, two headings in chapter 85 that provide for lamps.

[00:21:20] Speaker 00:
Gerson's products in neither of those, and Gerson's not even arguing for those.

[00:21:23] Speaker 00:
It's instead arguing for a basket provision that also says, that also says that unless, if it's not covered specifically elsewhere in the statute, it doesn't go on 8543.

[00:21:37] Speaker 00:
So again, that is not the correct provision here.

[00:21:40] Speaker 04:
Your thought is 8543 is headed electrical machines and apparatus, and 9405 lamps and lighting fittings.

[00:21:52] Speaker 04:
Do you think that comparison settles the issue?

[00:21:57] Speaker 00:
For 8543?

[00:21:59] Speaker 04:
No, in favor of 9405.

[00:22:03] Speaker 00:
Yes, it says lamps and lighting fittings.

[00:22:07] Speaker 00:
It's clearly a lamp.

[00:22:08] Speaker 00:
Pearson's not denying that this is their product.

[00:22:11] Speaker 04:
It's not an electrical machine.

[00:22:14] Speaker 00:
It's not an electrical machine of heading 8543, no.

[00:22:17] Speaker 01:
Because of the explanatory note or because of something else?

[00:22:21] Speaker 00:
Because when you look at what that heading is meant to encompass.

[00:22:25] Speaker 01:
When you look at the explanatory note?

[00:22:27] Speaker 00:
Explanatory notes and when you look at the fact that the heading also says this, unless it's not

[00:22:37] Speaker 00:
specifically covered elsewhere in Chapter 85, but yes, because the explanatory notes further that and say if it's not specifically covered elsewhere in the statue.

[00:22:46] Speaker 00:
And again, that makes sense here.

[00:22:48] Speaker 00:
If you look at what you're classifying, the products that are being classified here, tea lights, candles, if Gerson's argument was to win here, pretty much 9405, which Your Honor kind of alluded to that, searchlights, spotlights,

[00:23:07] Speaker 00:
Everything that's in 9405 could be considered an electrical apparatus having an individual function.

[00:23:15] Speaker 00:
What will be left in 9405?

[00:23:17] Speaker 00:
Gerson thinks that it's only non-LED products that remain in 9405.

[00:23:23] Speaker 00:
Again, no support for that.

[00:23:24] Speaker 00:
And you would effectively empty out a lot of 9405 if Gerson was to win.

[00:23:30] Speaker 04:
It's curious that both 8543 and 9405

[00:23:36] Speaker 04:
Each contains the not specified or included elsewhere language.

[00:23:41] Speaker 04:
So each one is pointing negatively to the other.

[00:23:45] Speaker 00:
Well, it's not.

[00:23:45] Speaker 00:
Again, 8543 is an electrical machine or apparatus.

[00:23:48] Speaker 00:
9405 is a lamp.

[00:23:51] Speaker 00:
This is a lamp.

[00:23:52] Speaker 00:
That's specific.

[00:23:54] Speaker 00:
It's a lamp.

[00:23:55] Speaker 00:
So that's why, as a safety, the notes are telling you, unless it's a chapter 85 lamp,

[00:24:03] Speaker 00:
8543, again, in the heading does not mention lamps, so you wouldn't even get there.

[00:24:09] Speaker 01:
So if you wanted us to say there are certain kinds of lamps that fall within the subheading of 8543, what would you say that you would want us to say if we had to say something about the kinds of electric luminescent lamps that fall within the subheading of 8543?

[00:24:26] Speaker 00:
Again, those aren't Geerson's products here.

[00:24:28] Speaker 01:
That's fine, but I'm asking you a question.

[00:24:30] Speaker 01:
What is your conception

[00:24:32] Speaker 01:
of what falls within the subheading of 8543 electric luminescent lamps?

[00:24:37] Speaker 00:
It's more so bulb-like products.

[00:24:42] Speaker 00:
And again, this is where the ENs do describe an electroluminescent device.

[00:24:47] Speaker 00:
And when you look at the commercial meaning of an electroluminescent lamp, which we've outlined in pages 20 and 21 of our brief, it describes the type of lamp.

[00:25:00] Speaker 00:
And Gersens does not fit in that.

[00:25:02] Speaker 00:
So that's what we would ask.

[00:25:03] Speaker 00:
The type of products that fit under that subheading are products that are strips, plates, panels of lights, or something akin to a bulb.

[00:25:15] Speaker 00:
It's not a finished, good, finished lamp like Gerson's tea light candles in this case.

[00:25:26] Speaker 00:
So if there's no further questions, we respectfully

[00:25:31] Speaker 00:
ask that the court affirm the trial court's opinion.

[00:25:34] Speaker 00:
Thank you.

[00:25:36] Speaker 04:
Mr. Shepard has four minutes if he needs us for rebuttal.

[00:25:40] Speaker 05:
Thank you, Your Honor.

[00:25:42] Speaker 05:
Just a couple of points.

[00:25:44] Speaker 05:
On whether or not this was electrical apparatus, the trial court essentially conceded that it met the criteria for being within the heading.

[00:25:55] Speaker 05:
Didn't get to that holding because it then

[00:26:00] Speaker 05:
went into the decorative articles analysis and didn't conclude the first step of the two-part analysis that's throughout the decision-making in the area that's included in Orlando.

[00:26:18] Speaker 05:
So the point on the explanatory notes being helpful

[00:26:30] Speaker 05:
In this case, it creates ambiguity.

[00:26:33] Speaker 05:
It doesn't resolve ambiguity.

[00:26:35] Speaker 05:
They're helpful if you're talking about some kind of nonspecific provision.

[00:26:42] Speaker 05:
Here, this is a very specific provision for electric luminescent lamps.

[00:26:47] Speaker 05:
In terms of relying on the explanatory notes as well, the difference between the explanatory notes at the international level and the US statute

[00:27:00] Speaker 05:
is that the explanatory notes don't even refer to lamps.

[00:27:06] Speaker 05:
They're talking about devices.

[00:27:09] Speaker 05:
So it creates the possibility that certain LED devices are classified in 70-70 as lamps, and others are electrical apparatus that would be classified in a subsidiary provision

[00:27:28] Speaker 05:
below 70, 90 or whatever that is.

[00:27:33] Speaker 05:
I think the fact that we're tackling something where you get two different chapters involved, in terms of the not elsewhere provided, there are two different kinds of not elsewhere provided.

[00:27:49] Speaker 05:
The 9405 is open to the whole tariff schedule.

[00:27:55] Speaker 05:
The 8543 is limited to the electrical articles in close proximity to it.

[00:28:02] Speaker 05:
And it is defined at the level of apparatus and I've dropped the two words, machines and apparatus.

[00:28:21] Speaker 05:
So RT Foods,

[00:28:25] Speaker 05:
the RT Foods actually supports our position because RT Foods focuses on looking at the whole statute.

[00:28:35] Speaker 05:
Back to the point of what the heading does, you look at the whole statute, there's a subheading that helps define the heading.

[00:28:43] Speaker 05:
It makes no sense to have a subheading that is not consistent with

[00:28:49] Speaker 05:
underneath the heading that perhaps gives a level of definition to what goes there.

[00:28:55] Speaker 05:
We think that ultimately the resolution is that LED article lights, as the government has suggested, strip lights underneath a cabinet, are lights.

[00:29:12] Speaker 05:
Why aren't they under 9405?

[00:29:13] Speaker 05:
Well, it makes sense that they're under 8543 because there

[00:29:19] Speaker 05:
electric luminescent lamps.

[00:29:21] Speaker 05:
The resolution would be to put electric luminescent lamps where they are expressly provided for and then permit other non-LED type articles incandescent or fluorescent to remain in that other provision.

[00:29:42] Speaker 01:
Do you have some evidence on why electric luminescent lamps necessarily refers to an LED

[00:29:48] Speaker 05:
I think it's throughout the record that putting the words together is the article.

[00:29:56] Speaker 05:
I think it's common and commercial.

[00:30:00] Speaker 05:
One further point, just in terms of underscoring the electrical apparatus part of this, is that these articles are not, these articles have permanent, they're a permanent light, they can't be replaced, they're soldered together,

[00:30:17] Speaker 05:
as part of the unit, the only thing that has a permanent lamp in chapter 94 and 9405 are name plates or certain kinds of signs.

[00:30:31] Speaker 05:
Just in terms of getting out into a store, you don't buy any of those lamps with a bulb.

[00:30:39] Speaker 05:
You buy the lamp and then you buy the bulb and then you replace bulbs as time goes along.

[00:30:46] Speaker 05:
That's not the case.

[00:30:46] Speaker 04:
Thank you, counsel.

[00:30:47] Speaker 04:
We have your point and we'll take the case under advisement.

[00:30:50] Speaker 04:
Thank you.