[00:00:01] Speaker 03:
We have two argued cases this morning.

[00:00:04] Speaker 03:
The first one is number 18-1378, Colley, USA, versus United States, Mr. Arnaud.

[00:00:16] Speaker 00:
Good morning, Honors, and if you may please the Court.

[00:00:19] Speaker 00:
The statute at issue today is section note, sorry, is note 2B3 of section 59 of the United States Territory.

[00:00:30] Speaker 03:
Could you start by explaining how we get to that chapter note, because nobody's contending that the articles here fall under 5903.

[00:00:43] Speaker 03:
So how do we get that chapter note being applicable to Chapter 6307?

[00:00:50] Speaker 00:
Very good, Your Honor.

[00:00:54] Speaker 00:
We are arguing that the product is classifiable as a plastic article in Chapter 39.

[00:01:01] Speaker 00:
Articles of chapter 39 cannot stay in chapter 39 if they're also provided for in section 11 of the tariff.

[00:01:09] Speaker 00:
Section 11 of the tariff is the section which incorporates all the textile provisions, including chapter 59 and chapter 63.

[00:01:18] Speaker 00:
When we get to the section notes for chapter section 11 of the tariff, it requires in a threshold decision as to whether or not we have

[00:01:27] Speaker 00:
a fabric that is a textile fabric or a plastic fabric.

[00:01:32] Speaker 00:
Again, because if it's a plastic fabric composite good and it meets one of the definitions set in that section note for Chapter 59, then the section note for Chapter 11 pushes this case, pushes this product into Chapter 39 for tariff classification purposes.

[00:01:54] Speaker 00:
So that's why the first inquiry is do we have

[00:01:56] Speaker 00:
a textile article for purposes of section 11 of the tariff.

[00:02:01] Speaker 00:
And to determine that we need to look at this note, note 2A3 for chapter 59.

[00:02:08] Speaker 00:
Chapter 59 is a provision where coded, covered, and embedded and laminated textile fabrics would be classified.

[00:02:17] Speaker 00:
So when we look at this note, this note very specifically excludes

[00:02:22] Speaker 00:
from classification in Chapter 59, and therefore excludes classification as a textile article.

[00:02:29] Speaker 00:
Textile, plastic, composite goods that meet one of two discrete criteria.

[00:02:36] Speaker 00:
One is they are either completely embedded in the plastic, meaning the textile fabric is completely embedded in the fabric, or two, the textile fabric is covered or coated on both sides with the plastic.

[00:02:49] Speaker 03:
And interpreting that, should we look to

[00:02:52] Speaker 03:
Heading 5903, which covers textile fabrics impregnated, coated, covered, or laminated with plastics.

[00:03:00] Speaker 00:
That would be the heading that we would look at.

[00:03:02] Speaker 00:
So we're looking at this note to that heading.

[00:03:05] Speaker 03:
So in determining what's embedded, embedded has to mean something different than impregnated.

[00:03:14] Speaker 00:
That is our position here.

[00:03:17] Speaker 00:
We believe that that particular note sets out

[00:03:22] Speaker 00:
two discrete exceptions to the rule that these types of products would stay in Chapter 59.

[00:03:29] Speaker 02:
So if the textile component of... Can you just back up a little bit first?

[00:03:33] Speaker 02:
I'm a little confused before we get into 3.

[00:03:34] Speaker 02:
5903A broadly covers textile fabrics impregnated, coated, covered, or laminated with plastic.

[00:03:42] Speaker 02:
Yes.

[00:03:42] Speaker 02:
Which this would seemingly apply to on its face.

[00:03:48] Speaker 02:
How does this, I mean, part of the problem is, you know, neither of you have done a very good job of giving us the big picture of how this operates.

[00:03:55] Speaker 02:
And just because you seem to agree that applying three is the key question, and that may be, but we have to understand the whole picture.

[00:04:02] Speaker 02:
Why isn't it just automatically in 5903 because of A?

[00:04:07] Speaker 02:
Is it because if it falls in A, but it's made up, it goes back to 63?

[00:04:14] Speaker 00:
So as a matter of tariff construction, general

[00:04:18] Speaker 00:
Rule of interpretation one says you start by looking at the headings and you look at applicable section and chapter notes.

[00:04:27] Speaker 00:
And so here we have an applicable chapter note.

[00:04:29] Speaker 00:
Chapter note 2A3 to chapter 59, which explains which types of products would be classified under heading 5903.

[00:04:39] Speaker 00:
And so what this note does is it says the general proposition is that coded, covered, laminated,

[00:04:45] Speaker 00:
and impregnated fabrics would stay in 5903, except in the following situations.

[00:04:50] Speaker 00:
And it's our argument, the mark line.

[00:04:52] Speaker 02:
No, no, I get that.

[00:04:53] Speaker 02:
You're not answering my question.

[00:04:55] Speaker 02:
I get you think whatever A3 applies.

[00:05:00] Speaker 02:
Why do we get there?

[00:05:01] Speaker 02:
If it doesn't apply, why isn't it still in 5903 by virtue of A?

[00:05:10] Speaker 00:
I'm not following your question.

[00:05:11] Speaker 00:
I'm sorry.

[00:05:12] Speaker 03:
I think the answer to that, that it's not on 5903 because it's not a fabric.

[00:05:17] Speaker 03:
It's a made-up article.

[00:05:19] Speaker 03:
And if what I understand you to be saying is correct, that it can't come in 6307 as a made-up article unless the made-up article is made up with a fabric which would be covered by 5903.

[00:05:35] Speaker 03:
Is that?

[00:05:36] Speaker 00:
That's exactly our argument, Your Honor.

[00:05:38] Speaker 00:
But since this product is not a fabric of 5903 because of the application of the chapter note to chapter 59, it can't be considered a textile article.

[00:05:48] Speaker 00:
And then the section note covering the entire textile section says it can't stay as a textile.

[00:05:54] Speaker 02:
So let me make sure I completely understand you.

[00:05:57] Speaker 02:
If it falls within 5903A, textile fabrics impregnated, coated, covered with plastic or the like,

[00:06:05] Speaker 02:
Because it's made up, then it goes back to 63.

[00:06:08] Speaker 02:
If it falls within the exception, it goes to 39, because it's not a textile fabric within the meaning of 5903.

[00:06:15] Speaker 03:
Yes, that's exactly the positions of the parties here.

[00:06:17] Speaker 03:
OK, but then, I'm sorry.

[00:06:19] Speaker 01:
I was just going to ask, is your fabric impregnated with plastic?

[00:06:23] Speaker 00:
Our fabric is impregnated with plastic, and it's coated on one side of plastic.

[00:06:28] Speaker 00:
It's our position that that satisfies the definition of being completely embedded in plastic.

[00:06:33] Speaker 00:
This product is made that way.

[00:06:35] Speaker 00:
It's a food product.

[00:06:37] Speaker 00:
They use it for casings for sausage and meat casings.

[00:06:41] Speaker 00:
They specifically fill the interstices of the fabric.

[00:06:44] Speaker 00:
I think that's a very important concept to understand.

[00:06:47] Speaker 03:
But doesn't that cause you a problem in terms of... If I understand correctly, you're saying in order to come under 6307, it has to be a textile under 5903, right?

[00:07:04] Speaker 03:
And what you say is, well, it doesn't come under 5903 because it's embedded.

[00:07:12] Speaker 03:
But in order to determine the meaning of embedded, can't we look to the language of 5903, which seems to cover textile fabrics impregnated?

[00:07:23] Speaker 03:
And since you yourself said a minute ago that this is an impregnated fabric, why doesn't that mean that it's impregnated rather than embedded?

[00:07:32] Speaker 00:
Do you understand what I'm saying?

[00:07:34] Speaker 00:
I do, Your Honor.

[00:07:35] Speaker 00:
request that you construe this heading the way the tariff is to be construed, which is to apply general rule of interpretation one and look at the language of the heading and the language of applicable section and chapter notes.

[00:07:50] Speaker 03:
But I don't think you're answering my question.

[00:07:52] Speaker 03:
If it's correct that in order to come under 6307, we look to chapter 5903 to see whether it's a text

[00:08:04] Speaker 03:
And the definition of 5903 says it's excluded if it's embedded, but it's included if it's impregnated.

[00:08:13] Speaker 03:
Why doesn't the difference between those two suggest that this particular fabric is not an embedded fabric, but rather an impregnated fabric?

[00:08:24] Speaker 00:
Well, Your Honor, we believe this is an embedded fabric.

[00:08:26] Speaker 00:
You asked if it was.

[00:08:27] Speaker 00:
You've got to answer my question.

[00:08:29] Speaker 00:
Well, Your Honor, if it's an embedded fabric... If it's an impregnated fabric, isn't it within 5903?

[00:08:35] Speaker 00:
Again, you'd have to look at the notes because there's some notes which describe how embedded fabric would be classified as well.

[00:08:42] Speaker 02:
What's the difference between embedded and impregnated?

[00:08:45] Speaker 00:
So the way we are describing it is something is impregnated when the plastic polymer, in this case, is forcefully pushed into the interstices of the fabric.

[00:08:57] Speaker 00:
that happens here with our product.

[00:09:00] Speaker 00:
Also our product, however, has coating on top of one of the surfaces.

[00:09:05] Speaker 00:
So it's more than simply impregnated.

[00:09:08] Speaker 00:
It has virtues of two of these plastic treatments.

[00:09:11] Speaker 00:
It's coated on one side and it's impregnated.

[00:09:14] Speaker 00:
And we believe that that creates a textile fabric that is

[00:09:18] Speaker 00:
completely embedded in the plastic.

[00:09:20] Speaker 00:
And again, that is the test of the term.

[00:09:23] Speaker 03:
But 59-03 says, includes textile fabrics, impregnated, coated, covered, or laminated with plastics.

[00:09:31] Speaker 03:
And I'm just not understanding why this doesn't fall within that, rather than the embedded category.

[00:09:39] Speaker 03:
I mean, that would seem to be fairly clear.

[00:09:41] Speaker 03:
You agree it's impregnated.

[00:09:43] Speaker 03:
You agree it's coated.

[00:09:45] Speaker 03:
Doesn't that suggest that it's

[00:09:47] Speaker 03:
falls outside of the category, that those characteristics make it fall outside of the category of embedded.

[00:09:53] Speaker 00:
That's exactly what I'm saying.

[00:09:54] Speaker 00:
What we have is a product that's a hybrid.

[00:09:56] Speaker 00:
It contains two distinct plastic treatments.

[00:09:58] Speaker 00:
It has a coating, and it has an impregnation.

[00:10:01] Speaker 00:
And that, we believe, satisfies the term being completely embedded.

[00:10:05] Speaker 02:
So is the plastic that's forced into the interstices of this different than the plastic that forms the

[00:10:14] Speaker 02:
coating on one side?

[00:10:16] Speaker 00:
No, it's the same plastic.

[00:10:17] Speaker 00:
It's the same treatment.

[00:10:19] Speaker 00:
Is it done all in the same process?

[00:10:20] Speaker 00:
It's done the same process.

[00:10:22] Speaker 00:
It's specifically done that way to leave a film on the top of the surface and to fill all the interstices.

[00:10:29] Speaker 00:
The client doesn't want to have yield loss, doesn't want moisture getting in.

[00:10:32] Speaker 00:
It doesn't want a product that will delaminate.

[00:10:34] Speaker 00:
So again, when you construe heading 5903,

[00:10:40] Speaker 00:
You need to construe it in the context of what it means with the chapter note.

[00:10:44] Speaker 03:
But the problem is there seems to be a dichotomy in 5903 between things that are impregnated and coded versus things that are embedded.

[00:10:54] Speaker 03:
Do you agree with that?

[00:10:56] Speaker 03:
The only reference to the term.

[00:10:57] Speaker 03:
Yes or no?

[00:10:58] Speaker 03:
Yes.

[00:10:59] Speaker 03:
OK.

[00:11:00] Speaker 03:
So then if that's true, then why doesn't this fall on the side of the line of being impregnated and coded rather than embedded?

[00:11:08] Speaker 03:
Because it's both.

[00:11:11] Speaker 00:
And our, we believe.

[00:11:12] Speaker 03:
It's both impregnated and coated.

[00:11:14] Speaker 00:
And that we believe means it's embedded.

[00:11:16] Speaker 00:
It's not one or the other.

[00:11:19] Speaker 00:
So that is, that is our position why this is embedded.

[00:11:22] Speaker 00:
That is our position why pursuant to the chapter note, this product is not.

[00:11:27] Speaker 02:
So if this, if your treatment just filled the interstices and didn't coat either side, that would just be impregnated.

[00:11:35] Speaker 02:
Yes.

[00:11:35] Speaker 02:
And so it would be under the A part and therefore

[00:11:39] Speaker 02:
get put back into 63.

[00:11:41] Speaker 00:
Yes.

[00:11:42] Speaker 02:
And so you're arguing that coding one side is equivalent to embedding.

[00:11:46] Speaker 00:
No, I'm arguing that coding one side and impregnating the interstices is the equivalent of embedded.

[00:11:55] Speaker 00:
If it was simply coded on one side, then we would have the same problem that Judge Dyke has identified.

[00:12:00] Speaker 00:
But what we have is a product that contains the characteristics of both of a

[00:12:05] Speaker 00:
of a impregnated fabric and a coated fabric.

[00:12:08] Speaker 00:
The only thing it doesn't have is coating on both sides.

[00:12:11] Speaker 00:
And that's the government's argument that to fall within the scope of a textile fabric, it has to be coated on both sides.

[00:12:17] Speaker 02:
We're arguing that the argument's a little bit different than that.

[00:12:20] Speaker 02:
It's not that it has to be coated on sides.

[00:12:22] Speaker 02:
It's that encoding and embedding are two different processes that result in different kind of physical structures.

[00:12:29] Speaker 00:
Well, we're arguing that there are two different treatments that result in different physical characteristics.

[00:12:34] Speaker 00:
The government's position is that the phrase completely embedded requires coating on both sides.

[00:12:38] Speaker 00:
Our position is that it doesn't.

[00:12:40] Speaker 00:
Our position is that Congress intended to create... And I think they're arguing that it means more than just coating on both sides, though.

[00:12:45] Speaker 02:
That embedded means it's completely embedded throughout.

[00:12:50] Speaker 00:
Well, in this situation, the threads of the fabric are completely embedded in the plastic because the plastic is forced into the interstices of the fabric.

[00:12:58] Speaker 00:
This is a woven fabric.

[00:13:00] Speaker 00:
The threads come at each other in right angles, create spaces.

[00:13:06] Speaker 00:
The plastic is forced into that, filling all those gaps.

[00:13:10] Speaker 00:
So all the gaps, the fabric is entirely embedded in the plastic.

[00:13:15] Speaker 00:
Except one side of it is not.

[00:13:16] Speaker 00:
Except the one side that's not.

[00:13:18] Speaker 02:
And the government is arguing the fact that... What's the difference between being embedded and completely embedded?

[00:13:23] Speaker 02:
I'll have to say, I find completely to be a really odd modifier for the

[00:13:29] Speaker 02:
word embedded, but there must be a difference between being embedded and being completely embedded.

[00:13:34] Speaker 00:
Your honor, I would just suggest that you can have fabric, which you only apply plastic to part of it.

[00:13:40] Speaker 00:
That would not be completely embedded.

[00:13:42] Speaker 02:
Our fabric, the entire length- Sure, but the part that you don't apply it to wouldn't be embedded at all.

[00:13:47] Speaker 00:
Exactly.

[00:13:47] Speaker 02:
So it would be partially embedded, not embedded.

[00:13:50] Speaker 00:
So it would be partially, so it wouldn't be completely embedded.

[00:13:52] Speaker 02:
But it doesn't say just partially.

[00:13:55] Speaker 02:
I mean, here's the problem.

[00:13:57] Speaker 02:
You're trying to read in

[00:13:59] Speaker 02:
another adverb to embedded, which is that it only covers partially embedded and embedded, completely embedded means what you want it to mean and they want to read it somewhat differently and neither version really makes sense in the definition of this product.

[00:14:17] Speaker 00:
Well, Your Honor, again, our definition of what completely embedded is that our textile is entirely embedded in the plastic.

[00:14:25] Speaker 00:
No part of the textile is not embedded in the plastic.

[00:14:28] Speaker 00:
It's not as if we had a 10-foot long piece of textile fabric, and we only treated the middle of it with the plastic coating.

[00:14:38] Speaker 00:
Is the perimeter of your fabric completely surrounded by plastic?

[00:14:42] Speaker 01:
It would be, because again, during the 19th century... Kind of like the Hollywood Star Walk of Fame, where you look at those stars in the sidewalks.

[00:14:51] Speaker 01:
The perimeter of each of those stars is surrounded by cement.

[00:14:57] Speaker 01:
So therefore, the star is

[00:14:59] Speaker 01:
embedded in the cement sidewalk, where a diamond is embedded in a ring, because the diamond stone is completely surrounded by the ring.

[00:15:13] Speaker 00:
Your Honor, because of the way the product's manufactured, all the interstices are filled with plastic.

[00:15:17] Speaker 00:
So the interstices at the edges of the fabric are filled as well.

[00:15:22] Speaker 00:
So I would answer, yes, it is.

[00:15:24] Speaker 01:
Is there something in the record that says that?

[00:15:27] Speaker 01:
That the fabric

[00:15:28] Speaker 01:
You know, in terms of square, in terms of area is smaller than the area of the plastic.

[00:15:36] Speaker 00:
Well, the parties have stipulated that the interstices of the fabric was filled with plastic.

[00:15:41] Speaker 02:
What's the difference in Judge Chen's hypothetical between embedded and completely embedded then?

[00:15:47] Speaker 02:
I mean, in his hypothetical, I don't think the cement goes up through the star and completely impregnates it.

[00:15:52] Speaker 02:
It sounds to me like you're equating, at least in his hypothetical, embedded with completely embedded.

[00:15:58] Speaker 02:
And making them the same thing.

[00:15:59] Speaker 00:
As I understood Judge Chen's hypothetical, he was asking whether those particular surfaces, the side surfaces, also had a plastic treatment.

[00:16:09] Speaker 00:
Because we know the top has a plastic treatment.

[00:16:11] Speaker 02:
Well, can I answer, if you didn't understand when I was asking a hypothetical about the Hollywood star, let me ask it.

[00:16:17] Speaker 02:
Is the Hollywood star completely embedded in the cement, or is it just embedded?

[00:16:22] Speaker 00:
I would say it's completely embedded in the cement.

[00:16:24] Speaker 00:
Even though one side of it is completely open.

[00:16:26] Speaker 00:
Absolutely.

[00:16:28] Speaker 00:
fixed firmly in the surrounding mass.

[00:16:29] Speaker 00:
Isn't that the definition of embedded?

[00:16:32] Speaker 00:
That would be the definition of embedded that we have offered.

[00:16:34] Speaker 02:
So you're writing out the word completely.

[00:16:37] Speaker 00:
No.

[00:16:38] Speaker 00:
Again, what we say completely.

[00:16:39] Speaker 00:
What's the difference between completely embedded and embedded?

[00:16:43] Speaker 00:
Again, completely meaning the entirety of the fabric is embedded as opposed to a portion of the fabric is embedded.

[00:16:50] Speaker 03:
There are various dictionary definitions which seem to say that to be embedded

[00:16:57] Speaker 03:
It has to be fixed into a surrounding mass.

[00:17:00] Speaker 03:
Correct.

[00:17:01] Speaker 03:
And like the Hollywood star and the cement, there's no surrounding mass here.

[00:17:11] Speaker 03:
This is not like putting brick in a wall.

[00:17:14] Speaker 03:
So why would that be embedded?

[00:17:16] Speaker 00:
Well, Your Honor, I disagree with you.

[00:17:17] Speaker 00:
The plastic is the surrounding mass.

[00:17:19] Speaker 00:
It goes on as a liquid polymer.

[00:17:21] Speaker 00:
And when it hardens, it is the surrounding mass.

[00:17:25] Speaker 00:
in which the textile fabric has been completely embedded.

[00:17:29] Speaker 01:
Your argument is that each fiber of the fabric is surrounded by a surrounding mass, the plastic, when the plastic oozes through the interstices of the woven fabric, right?

[00:17:43] Speaker 00:
It is.

[00:17:43] Speaker 01:
So it's more of a fiber by fiber kind of inquiry for you, as opposed to the overall woven fabric as a whole.

[00:17:52] Speaker 00:
Well, no, I think a woven fabric as a whole, treated the way this is treated, creates something where that fabric is entirely embedded in the plastic.

[00:18:01] Speaker 00:
And at the thread level, each of those threads is entirely and completely embedded in the plastic.

[00:18:09] Speaker 03:
OK, we'll give you two minutes for that one.

[00:18:12] Speaker 03:
Thank you.

[00:18:14] Speaker 03:
OK, let's hear from the government, Mrs. Joson.

[00:18:22] Speaker 02:
What do you think the difference between embedded and completely embedded is?

[00:18:27] Speaker 02:
And how does it different from completely covered?

[00:18:30] Speaker 04:
Completely embedded is just something fixed in a surrounding mass, which is the definition of embedded.

[00:18:36] Speaker 04:
Completely embedded would be on all sides.

[00:18:40] Speaker 04:
So every side of the fabric is completely surrounded by plastic.

[00:18:45] Speaker 02:
How is that different from completely covered?

[00:18:48] Speaker 04:
Completely covered, you mean the other

[00:18:51] Speaker 04:
Are you talking about the other exception in note two?

[00:18:54] Speaker 02:
Completely in general.

[00:18:55] Speaker 02:
Just the general definition of completely covered.

[00:18:57] Speaker 02:
I mean, that is the other part.

[00:18:58] Speaker 02:
I might be using it not properly.

[00:19:01] Speaker 02:
Entirely coded or covered.

[00:19:03] Speaker 02:
Entirely covered.

[00:19:04] Speaker 02:
So what's the difference between completely embedded or entirely covered?

[00:19:08] Speaker 04:
Entirely covered, it's on both sides.

[00:19:11] Speaker 04:
It's getting at the same thing.

[00:19:13] Speaker 04:
It's just the process that's used to get there.

[00:19:15] Speaker 04:
So embedding, it's

[00:19:18] Speaker 04:
a different process from covering or coating.

[00:19:20] Speaker 04:
And what that note is really getting at.

[00:19:22] Speaker 02:
Is it that something that could be entirely covered but not fixed to the covering and completely embedded means it has to be fixed to the embedding material?

[00:19:32] Speaker 04:
I mean, I think if you're going to cover, if you're going to have a covering process, a fabric with covering with plastic and it's completely covered, it will have plastic on both sides.

[00:19:42] Speaker 04:
It will be, it will be.

[00:19:43] Speaker 02:
But it might not, it doesn't have to be fixed.

[00:19:45] Speaker 04:
Yeah, it might not be fixed.

[00:19:48] Speaker 04:
That's correct, it might not be fixed.

[00:19:49] Speaker 02:
I know you didn't argue this, and I'm not sure I'm allowed to come up with good arguments for you, but it seems to me that that's one potential difference is that covering doesn't necessarily mean fixing the covering to the inner material.

[00:20:01] Speaker 02:
So you could have a piece of textile fabric entirely covered in some kind of plastic coating that wasn't fixed to the textile.

[00:20:11] Speaker 01:
That's right, because the definition of covering is just... So would you say that completely embedded

[00:20:18] Speaker 01:
in your view, is a species of the genus of being entirely covered.

[00:20:23] Speaker 01:
Entirely covered, there's a lot of different ways for something to be entirely covered.

[00:20:28] Speaker 01:
One of them would be if it's completely embedded.

[00:20:32] Speaker 01:
No, I think it's just getting at two different ways of putting plastic... Well, covered is so general in terms of any different way you could cover entirely something else.

[00:20:46] Speaker 01:
Yeah, and I think when you look at the... And then your version of completely embedded means that one object has to be completely covered by another mass.

[00:20:58] Speaker 04:
It has to be completely fixed to the mass for completely embedded.

[00:21:01] Speaker 03:
So suppose this sausage casing had plastic on both sides and the plastic was integrated into the fabric.

[00:21:10] Speaker 03:
Would that be embedded?

[00:21:11] Speaker 04:
I'm sorry, I couldn't hear.

[00:21:13] Speaker 03:
If this, in this sausage casing, we had plastic on both sides in addition to its being impregnated, would that be embedded then?

[00:21:22] Speaker 04:
It would be coded.

[00:21:23] Speaker 04:
I mean, I think the process, it's undisputed the process.

[00:21:27] Speaker 03:
No, no, answer my question.

[00:21:28] Speaker 03:
If, let's take this sausage casing and in addition to the way it is now, it also has plastic on both sides, would that be embedded?

[00:21:46] Speaker 02:
it will be, I'm not sure if it will be embedded in the sense that, you know, because I think the exception, the relevant exception here is- But instead of leaving one side of it open so that the fabric can absorb dyes and everything, it just pushes plastic all the way through.

[00:22:01] Speaker 02:
And so it is entirely impregnated and covered all around in plastic.

[00:22:08] Speaker 02:
Why isn't that completely embedded?

[00:22:09] Speaker 04:
It would be completely embedded.

[00:22:11] Speaker 04:
If it's on both sides, it would be the way

[00:22:14] Speaker 04:
the product is being described, it would be completely embedded if it had it on both sides.

[00:22:20] Speaker 02:
But it also could be completely covered, too.

[00:22:23] Speaker 04:
It could be completely coated.

[00:22:25] Speaker 04:
Here, again, it's undisputed that the process, and the reason there's a little bit of a disconnect, I think, is because I think the relevant exception here is really whether the product is covered, coated on both sides in plastic.

[00:22:39] Speaker 04:
That's really the relevant exception that applies here because it's undisputed that there's a coating of plastic.

[00:22:46] Speaker 02:
This is what's troubling though.

[00:22:47] Speaker 02:
This provision makes very little sense to me, frankly, the way it's written.

[00:22:51] Speaker 02:
Can you give me an example of something that's completely embedded in plastic but that wouldn't be completely covered by plastic?

[00:23:03] Speaker 04:
I think it would be, it's hard to tell what the

[00:23:07] Speaker 04:
Because I think that what the two terminologies are getting at is a process.

[00:23:12] Speaker 04:
So when you look at a product, it's going to look similar.

[00:23:15] Speaker 04:
I don't think looking at a product with the naked eye, you're going to be able to tell how it was made.

[00:23:22] Speaker 04:
So I think the note is really getting at, no matter how this product is made, the end result should be the same, which is the plastic has to be all around the fabric.

[00:23:32] Speaker 04:
And that's what the note is trying to get at.

[00:23:34] Speaker 04:
I don't know if there's, you know,

[00:23:37] Speaker 04:
to know whether, I guess, if you took a stick and put it in cement, fully put it in cement, there's no part of the stick sticking out, that would be completely embedded.

[00:23:47] Speaker 04:
That would be a stick completely embedded in cement.

[00:23:50] Speaker 03:
But then the problem is there's no difference between embedded and covered on both sides, is there?

[00:23:56] Speaker 04:
Processing-wise, I mean, you wouldn't say, I don't think a stick in cement that's completely embedded in cement, you wouldn't say it's coated with plastic

[00:24:05] Speaker 04:
that would be the product here, which is a thin layer of plastic that's coated onto the fabric.

[00:24:11] Speaker 03:
So it's really getting at the... I'm not sure your answer to my question.

[00:24:14] Speaker 03:
This note distinguishes between embedded and covered on both sides.

[00:24:20] Speaker 03:
So what exactly is the difference between those two?

[00:24:25] Speaker 04:
The way the product is, there is no difference.

[00:24:27] Speaker 04:
What the product is

[00:24:30] Speaker 04:
is that it's surrounded by plastic.

[00:24:33] Speaker 04:
Plastic is all around.

[00:24:33] Speaker 04:
So completely embedded or embedded and coated and covered are all trying to get at the same end result.

[00:24:41] Speaker 04:
They're all trying to get at the same end product that you have, which is a product that's surrounded in plastic on every single side.

[00:24:49] Speaker 04:
So if there's one side that's not covered in plastic or coated in plastic, like the sausage casings here, that doesn't fall into exception.

[00:24:57] Speaker 04:
I mean, heading 5903,

[00:24:59] Speaker 04:
Primer fascia covers impregnated and coated fabrics.

[00:25:04] Speaker 04:
Primer fascia is in.

[00:25:05] Speaker 04:
The only reason where it gets kicked out is if you have a product where the plastic is so extensive, meaning that it's on all sides of it, there's nothing that's not touched with plastic, then it gets kicked out and put into chapter 39.

[00:25:19] Speaker 04:
That's not the product that we have here.

[00:25:21] Speaker 04:
Here, it's undisputed that there's coating only on one side.

[00:25:25] Speaker 02:
And that there remains a textile portion

[00:25:28] Speaker 02:
that actually is operative here to interact with the product inside of it.

[00:25:33] Speaker 04:
That's right.

[00:25:34] Speaker 04:
To capture the flavorings in.

[00:25:36] Speaker 04:
So that's, you know, that's all undisputed.

[00:25:38] Speaker 04:
So again, how it would get kicked out is, that should just be the end of the inquiry here.

[00:25:43] Speaker 04:
It's prima facie and 5903 or prima facie and a textiles provision.

[00:25:48] Speaker 04:
And it doesn't get kicked out of there.

[00:25:52] Speaker 03:
Do you agree, just so that the record is clear,

[00:25:55] Speaker 03:
in order for the made-up article to fall under 6307, that it has to be fabric under 5903?

[00:26:07] Speaker 04:
It does.

[00:26:07] Speaker 04:
And if you would like, I can give you a little bigger picture here.

[00:26:11] Speaker 04:
6307 is the heading that customs classified and rightfully classified these products.

[00:26:17] Speaker 04:
For 6307, there's two components to it.

[00:26:21] Speaker 04:
The article has to be made up.

[00:26:24] Speaker 04:
and it has to be of any textile fabric.

[00:26:30] Speaker 04:
So we all agree, nobody's disputing that this is a made-up article.

[00:26:34] Speaker 04:
The argument is over whether this is really a textile fabric.

[00:26:37] Speaker 04:
And in order to make that determination, that's where you look at note two to chapter 59, which says, impregnated, coated, covered fabrics with plastic are automatically prima facia in heading 5903.

[00:26:51] Speaker 04:
So this is a fabric of 5903.

[00:26:54] Speaker 04:
And that's why you're taking care of the second requirement for 6307.

[00:26:57] Speaker 02:
You know, in the future, it might be helpful if you give us that broader contact.

[00:27:01] Speaker 02:
I know you two both agree on this issue, so you think that's all we need to decide.

[00:27:05] Speaker 02:
But sometimes it's helpful.

[00:27:07] Speaker 02:
You know very well these customers' classifications are very difficult.

[00:27:10] Speaker 02:
And it was laid out a little bit, but a bigger framework would have been nicer.

[00:27:15] Speaker 04:
Sure.

[00:27:16] Speaker 04:
Certainly.

[00:27:17] Speaker 04:
In the future.

[00:27:18] Speaker 04:
Apologize for that.

[00:27:20] Speaker 01:
So I guess you think the stars in the Hollywood Walk of Fame are not completely embedded in the sidewalk?

[00:27:25] Speaker 04:
No.

[00:27:26] Speaker 01:
It's not on all sides.

[00:27:28] Speaker 01:
For me to say they're completely embedded in the sidewalk, you'd have to have a coating of cement over the top of the stars?

[00:27:35] Speaker 04:
Yeah, they might be embedded, but they're not completely embedded.

[00:27:38] Speaker 04:
And I think that's exactly the problem here is a parent is completely writing out the word completely here.

[00:27:45] Speaker 04:
It's embedded, embedded, embedded, but there is a statutory term completely here.

[00:27:50] Speaker 04:
which does add something to just embedding.

[00:27:54] Speaker 04:
And that's, that it has to be on every single side, on all surfaces.

[00:27:59] Speaker 04:
The surrounding mass has to be on all surfaces here.

[00:28:04] Speaker 03:
Okay, anything further?

[00:28:06] Speaker 04:
I have nothing further.

[00:28:07] Speaker 04:
I would just ask that the trial court's decision be affirmed.

[00:28:10] Speaker 03:
Okay, thank you.

[00:28:17] Speaker 03:
Thank you.

[00:28:17] Speaker 03:
Mr. Arnab, you've got two minutes.

[00:28:19] Speaker 00:
Your Honor, if we could look at the Hollywood star issue.

[00:28:23] Speaker 00:
Clearly, that is completely embedded in concrete.

[00:28:26] Speaker 00:
The government to come here and say, no, it has to have concrete on top of the star to make it completely embedded, I think, is a ridiculous argument.

[00:28:34] Speaker 00:
And it's the same thing here.

[00:28:35] Speaker 00:
Our fabric is completely embedded in the plastic.

[00:28:38] Speaker 00:
The position the government just told you is basically one which is asking you to disregard the candidate against Serplich.

[00:28:47] Speaker 00:
So they want you to read out the distinction between something completely embedded and something covered or coded on both sides.

[00:28:56] Speaker 00:
She specifically came up here and said, in order to be completely embedded, it needed to be covered or coded on both sides.

[00:29:02] Speaker 00:
So now you basically have rendered the statutory language superfluous, because why would Congress have set out two discrete plastic treatments unless it intended for each of those plastic treatments to cover certain discrete physical characteristics?

[00:29:16] Speaker 00:
We have offered an analysis which explains what those physical characteristics are for purposes of being completely embedded.

[00:29:24] Speaker 00:
Our product is fixed firmly in plastic.

[00:29:26] Speaker 00:
It does not be laminated.

[00:29:28] Speaker 00:
No part of the fabric is not fixed firmly in the plastic coating.

[00:29:31] Speaker 00:
For that reason, we believe we have a product that has to be classified in Chapter 39 of the tariff because it's no longer a textile article.

[00:29:41] Speaker 00:
And specifically, within Chapter 39, heading 3917,

[00:29:45] Speaker 00:
cover sausage casings and other lay flat tubing.

[00:29:48] Speaker 00:
So we would respectfully request that the decision below be reversed, and that a decision be put in for Cali in favor of classification under 3917-3900.

[00:29:57] Speaker 00:
Thank you very much, Your Honor.

[00:30:00] Speaker 03:
OK.

[00:30:00] Speaker 03:
Thank you.

[00:30:00] Speaker 03:
Thank both counsels.

[00:30:01] Speaker 03:
The case is submitted.