[00:00:02] Speaker 01:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:00:07] Speaker 01:
God save the United States and this honorable court.

[00:00:13] Speaker 00:
Good morning.

[00:00:14] Speaker 00:
We'll hear argument first in number 20-1476, SC Johnson and Sons, Inc.

[00:00:20] Speaker 00:
versus United States, Mr. Rohl.

[00:00:25] Speaker 01:
Good morning, and may it please the courts.

[00:00:27] Speaker 01:
We are asking this court to reverse the judgment of the court below and to find that the plastic sandwich bags that are at issue in this case are classifiable as household articles based on the clear and, actually, sometimes unremarkable evidence that sandwich bags belong to the class or kind of articles that are commonly used in and around the home.

[00:00:47] Speaker 00:
Could I ask Mr. Roll this, Judge Dyke, just so we can be clear about what the issue is here.

[00:00:54] Speaker 00:
As I understand it, you're making two arguments.

[00:00:57] Speaker 00:
One is that 3923 is limited to commercial or bulk transport, and therefore it wouldn't include these bags.

[00:01:08] Speaker 00:
And second, that 3924 is not an eonominy provision, but a use provision.

[00:01:15] Speaker 00:
Is that correct?

[00:01:17] Speaker 01:
Your Honor, I agree with the characterization of the second part, which is to say that 3924 is not an eonominy provision, but is a use provision.

[00:01:25] Speaker 01:
I agree with that.

[00:01:26] Speaker 01:
with regard to the first characterization of our argument about 3923 being limited to commercial and bulk type of transport containers.

[00:01:36] Speaker 01:
That's part of the analysis, but I would phrase our argument as being that the sandwich bags are not of the class or kind of merchandise classifiable in heading 93923, and that there's no evidence to support a class or kind finding for heading 3923.

[00:01:51] Speaker 01:
But the bulk and commercial issue is part of that argument.

[00:01:56] Speaker 00:
OK, so if you lose on both of those, you lose the case then, right?

[00:02:04] Speaker 01:
I'm just thinking that there is, if you conclude that the principal use that the court below made a correct principal use determination that the goods are used to pack or convey articles as defined, as that class or kind is defined in 3923, then I guess I would have to concede that that would be the end of it.

[00:02:24] Speaker 00:
Yeah.

[00:02:25] Speaker 00:
OK.

[00:02:25] Speaker 00:
Go ahead.

[00:02:27] Speaker 01:
Okay, so turning to the issue of heading 3924, it's an important error that the court made below because the analysis that the court has to conduct about whether it's AO nominee or use is going to change depending upon the approach it takes.

[00:02:43] Speaker 01:
Heading 3924 is not an AO nominee provision and how do we know that?

[00:02:47] Speaker 01:
First of all, anonymity provisions, as the court is aware, describe things by names such as soups, broths, screws, sunflower seeds, liquid crystal devices.

[00:02:57] Speaker 01:
Those are specific types of names.

[00:03:00] Speaker 00:
Use provisions of it.

[00:03:01] Speaker 00:
It seems as though the dictionaries define household items or household articles as meaning things found in the household rather than things used in the household.

[00:03:17] Speaker 00:
If we conclude that that's the definition of household articles, then it's not a use provision, right?

[00:03:27] Speaker 01:
If you stick to just the dictionary definition and you say that it's things that are located in the home, I suppose you could say these things are not household articles.

[00:03:39] Speaker 01:
But even under that definition, the court below, with that same definition you're using, Judge Dike, found that these are household articles.

[00:03:47] Speaker 01:
It's important to remember the judge below did not say these are not household articles.

[00:03:51] Speaker 01:
She wound up doing it.

[00:03:53] Speaker 00:
If we accept the definition that it means articles found in the home, then it's not a use provision, right?

[00:04:07] Speaker 01:
I'm not sure I would concede that only because, first of all, there's no such thing in tariff interpretation as a location provision.

[00:04:14] Speaker 01:
So you have to still conduct a use provision to find out whether it's found in the home or not.

[00:04:20] Speaker 01:
If you're just going to say something found in the home is the test and say therefore it's not a use provision, that would seem to be creating new law.

[00:04:29] Speaker 01:
I suppose, of course, the court is able to do that.

[00:04:34] Speaker 01:
But you still need to conduct a use analysis to know if something is found in the home.

[00:04:40] Speaker 01:
The court's precedent is clear on that.

[00:04:42] Speaker 01:
US v. Brockman, which we cited in our brief,

[00:04:45] Speaker 01:
talks about if the adjective, right, the word articles, it's household articles is what we're interpreting here.

[00:04:49] Speaker 01:
Articles by itself means virtually nothing.

[00:04:52] Speaker 01:
That's a very broad, broad description.

[00:04:54] Speaker 01:
So we have the adjective household that modifies the noun articles.

[00:04:59] Speaker 01:
And that makes it not an a anomaly provision according to USP Bruckman because we just have an adjective in front of a noun.

[00:05:06] Speaker 01:
And as we cite in our brief, all the hundred years of cases that talk about household being a use provision,

[00:05:11] Speaker 01:
this court's decision in SGI saying household is the use provision.

[00:05:14] Speaker 01:
So I suppose the court's always free to deviate from that and create new law, but it would be breaking with, you know, literally about 100 years of precedent on the interpretation of the word household.

[00:05:26] Speaker 03:
Council, where in SGI did we say household article is the use provision?

[00:05:33] Speaker 01:
It's on page, I believe it's page 1468.

[00:05:37] Speaker 01:
Let me just confirm the page.

[00:05:40] Speaker 01:
It was towards the end of

[00:05:41] Speaker 01:
So the last paragraph, the decision above the word conclusion, as the Court of International Trade found, I'm reading, the coolers may be considered household articles because the coolers may be used in a number of locations where food or beverages might be consumed, such as in and around the home and during trips away from home on picnics, sporting, and at spectator and participation sporting events, end quote.

[00:06:09] Speaker 01:
So that's the extent of the question.

[00:06:12] Speaker 01:
Well, I mean, I guess one can belittle to say that that's the extent of it, but the court said used, made reference to the use.

[00:06:21] Speaker 01:
And that combined with the other cases we cited, for example, with household utensils, which multiple times this court's predecessor, the CCPA, said is a use provision.

[00:06:34] Speaker 02:
Counsel, this is Judge O'Malley.

[00:06:35] Speaker 02:
What would your analysis be if we said that both are use provisions?

[00:06:42] Speaker 01:
If both are used provisions, which we would, I mean, our position is both of these provisions, meaning 3923 and 3924, our contention is they are both used provisions.

[00:06:53] Speaker 01:
The error the court below made is in not treating them that way, and then once you treat them as both being used provisions, you must conduct... All right, I understand that.

[00:07:00] Speaker 02:
I understand that, but where would you go with the analysis?

[00:07:03] Speaker 02:
What's next then?

[00:07:05] Speaker 01:
Oh, then the next is to figure out what is the class or kind of merchandise

[00:07:08] Speaker 01:
described by household articles and what is the class or kind of merchandise described by articles for the packing or conveyance of goods.

[00:07:17] Speaker 01:
And to figure that out, it's the carborundum factors that come into play.

[00:07:21] Speaker 02:
Right.

[00:07:21] Speaker 02:
So how would you apply the carborundum factors, assuming we got there?

[00:07:26] Speaker 01:
Sure.

[00:07:26] Speaker 01:
So if we got there, you would look at first, what are the physical characteristics of these bags and of household articles?

[00:07:35] Speaker 01:
And you would see in the case of the bags here,

[00:07:38] Speaker 01:
as we cited, and as the judge below agreed, their kosher, they're tested for the absence of BPA, they're made with special resins that have to be safe for food contact.

[00:07:49] Speaker 01:
Now, there's a physical characteristic about these bags, they're all built around food, and food is a household article.

[00:07:55] Speaker 01:
That would be the first factor.

[00:07:57] Speaker 01:
The second factor, which is used in the same manner as the class, the evidence in the joint appendix, and I can provide the pages if that's useful, show that the overwhelming use of these bags

[00:08:08] Speaker 01:
and the actual use of the bags is for food and storing food in the house and taking goods out of the house.

[00:08:15] Speaker 01:
The expectation is the ultimate purchaser.

[00:08:16] Speaker 01:
Again, the joint appendix is replete with evidence showing that when someone buys one of these bags, they're buying it for food storage purposes.

[00:08:24] Speaker 01:
They're not buying it to carry around a bunch of paper clips in the bag.

[00:08:29] Speaker 00:
No, but it would seem as though the question is,

[00:08:34] Speaker 00:
principal use of the bags to carry, let's say, foodstuffs from home to school or home to work, or is the principal use of the bags to store food in the home, right?

[00:08:49] Speaker 01:
It's both.

[00:08:50] Speaker 01:
In other words, the bags are used for both purposes.

[00:08:53] Speaker 01:
They're used for storing food in the home.

[00:08:56] Speaker 01:
After you make a sandwich in your kitchen and you're done with it, you want to put it in the refrigerator, you put it in the bag, put it in the fridge.

[00:09:02] Speaker 01:
It's also, of course, to take food to school, just like the coolers in SGI were used to store things and to carry things.

[00:09:09] Speaker 01:
The court in SGI didn't say, because I can carry something in there, that that makes it fall into 3923.

[00:09:14] Speaker 02:
I mean, to be sure, headings... There can be only one principal use, right?

[00:09:21] Speaker 01:
Correct.

[00:09:21] Speaker 01:
It's the use that exceeds all others.

[00:09:24] Speaker 02:
Right.

[00:09:24] Speaker 02:
But you look at the plain language of the headings, and the sandwich bags certainly would qualify as articles for the conveyance or packing of goods.

[00:09:33] Speaker 02:
Correct?

[00:09:35] Speaker 01:
I would disagree with that.

[00:09:37] Speaker 00:
Assume that we reject the commercial or bulk transport limitation.

[00:09:45] Speaker 00:
Is that the answer to your question with NBS?

[00:09:50] Speaker 01:
No, because you're defining it by saying, I mean, I understand why it's tempting to reach the conclusion that if you can put a sandwich in the bag and carry it to school that you're packing and conveying a good,

[00:10:01] Speaker 01:
But the language of that provision is not that broad, that if you just pack or carry something, it falls in 3923.

[00:10:10] Speaker 01:
How do we know that?

[00:10:11] Speaker 01:
We know that because the explanatory notes make clear that household articles don't go in 3923.

[00:10:16] Speaker 01:
It says that right in the explanatory notes, number one.

[00:10:20] Speaker 01:
Number two, as I said, SGI would have come out differently if that was the breadth of heading 3923.

[00:10:26] Speaker 02:
But was there really a comparison in SGI

[00:10:31] Speaker 02:
Wasn't the court simply comparing 3924 and 4202?

[00:10:38] Speaker 01:
Well, the plaintiff argued for 3923 and 3924, and so the court necessarily had to consider, yes, the court did not have a detailed discussion in SGI in the language of the opinion, but clearly the court had to consider it and reject it under its Jarvis Clark responsibilities.

[00:10:53] Speaker 03:
Was the language of 3923 the same when SGI was decided, or did it used to say manufacture as opposed to goods?

[00:11:08] Speaker 01:
At the time SGI was decided, heading 3923 read the same as it reads today.

[00:11:14] Speaker 01:
It was heading 4202 that underwent a subsequent change, but the operative language in 3924 and 3923 was the same.

[00:11:22] Speaker 01:
Again, this idea that something has to be found in the home in order to be a house with articles and because you're going to carry your sandwich bag to school, therefore makes it for packing or conveying.

[00:11:33] Speaker 01:
It's just simply not supported either by the history of the tariff as well.

[00:11:36] Speaker 01:
We pointed out the predecessor tariff, which of course is not binding here, we acknowledge that, but had the same distinction between... I realize I'm eating into my rebuttal time, but just to wrap up on this point.

[00:11:50] Speaker 01:
called out sandwich bags as not being things for packing or conveying goods and called them out as not falling under the equivalent of today's 3923.

[00:11:57] Speaker 01:
I want to reserve, if I can, the rest of my time.

[00:12:02] Speaker 00:
We'll let you reserve some time, but I'm not sure we're done with the questions yet.

[00:12:06] Speaker 00:
Why is 3923 does not apply to the extent that the bags are used to convey food to schools or workplaces?

[00:12:20] Speaker 01:
Why is it that Heading 3923 doesn't apply?

[00:12:23] Speaker 01:
Because you have to identify what is the... The question is not, is this sandwich bag used for packing or conveying something?

[00:12:30] Speaker 01:
That would be an aonominy approach.

[00:12:31] Speaker 01:
The question is, what is the class or kind of merchandise that falls in Heading 3923?

[00:12:36] Speaker 01:
It simply makes no sense to say that any bag that can carry something, whether it's, forgive the phrase, a poop bag for your dog, a sandwich bag here, a bag you get at the produce aisle in the grocery store,

[00:12:50] Speaker 01:
You cannot say all those are for the packing or conveyance of goods and it's all one single class of articles.

[00:12:55] Speaker 01:
Class or kind looks at commercial fungibility and a contractor who needs a heavy-duty contractor bag is going to be sorely disappointed if someone gives them a sandwich bag.

[00:13:05] Speaker 01:
Same thing with the child who brings the goldfish home in a sandwich bag that leaks.

[00:13:09] Speaker 01:
There's a class or kind analysis with the carbon factors that has to be looked at in order to figure out what is the group of products that fall within there.

[00:13:17] Speaker 03:
Well, Council, this is Judge Moore.

[00:13:20] Speaker 03:
Just following up on Judge Dyck's question, 3923 has other sub-elements that seem to contradict the definition you are proposing.

[00:13:31] Speaker 03:
I mean, isn't, when they talk about polyethylene retail carrying bags and I say grocery store shopping bags.

[00:13:39] Speaker 01:
First of all, those bags are not at issue here.

[00:13:41] Speaker 01:
And there's no evidence.

[00:13:44] Speaker 03:
But your argument is what is encompassed within 3923.

[00:13:48] Speaker 03:
And it contains a specific subheading saying that grocery store or shopping bags, I think, are encompassed by 3923.

[00:13:55] Speaker 03:
That seems to sort of contradict your bigger picture argument about what 3923 is directed to.

[00:14:04] Speaker 01:
It may call out those types of bags.

[00:14:06] Speaker 01:
But it also calls out, and so I think it would be selective reading of explanatory notes,

[00:14:11] Speaker 01:
it calls out that household articles don't fall in 3923.

[00:14:14] Speaker 03:
So it's... Well, Council, Council, we don't get to the explanatory notes, do we?

[00:14:19] Speaker 03:
I mean, if we are focusing on the HDSUS itself, the explanatory notes are only secondary, correct?

[00:14:29] Speaker 01:
Correct.

[00:14:31] Speaker 01:
But you made a reference to shopping bags, and those are not called out in heading 3923.

[00:14:35] Speaker 01:
Remember in Orlando, in this court held, you first have to decide at the heading at the four-digit level

[00:14:41] Speaker 01:
are we described by the four digits?

[00:14:43] Speaker 01:
And the four digits here only say articles for the conveyance or packing of goods, of plastics.

[00:14:48] Speaker 03:
Oh, I see.

[00:14:48] Speaker 03:
Am I understanding your argument to be I should disregard everything else in 3923, like 3923.10, 3923.21, 3923.29, that somehow I should disregard all of those subcategories within 3923 as not informing what 3923 itself is focused on?

[00:15:13] Speaker 01:
You have to disregard this.

[00:15:14] Speaker 01:
I wouldn't say you should.

[00:15:15] Speaker 01:
You must.

[00:15:16] Speaker 01:
That's the teaching of Orlando.

[00:15:17] Speaker 01:
You must resolve at the heading level first, because everything below there is just a subset of whatever you've defined the heading to be.

[00:15:24] Speaker 03:
Yes, except that way, counsel, but the problem I'm having is if everything below is specifically called out, and if this is a statute to which we have to give deference, and it specifically calls out things,

[00:15:36] Speaker 03:
that would be excluded under your definition of the general heading, isn't that teaching us that your definition of the general heading is probably not what Congress intended?

[00:15:49] Speaker 01:
It doesn't follow if I can just answer that question.

[00:15:52] Speaker 01:
It's just because there's a call out for sacks and bags at the six-digit level doesn't mean that every sack and bag falls in there, right?

[00:16:01] Speaker 01:
It has to be something that's described in 3923 at the heading level.

[00:16:05] Speaker 01:
Those sacks and bags fall in there.

[00:16:08] Speaker 01:
For sure.

[00:16:12] Speaker 01:
But also, just my last point, and then if I can just reserve, there's no evidence in the opinion below in the joint appendix anywhere about what is the class or kind of merchandise that falls in 3923.

[00:16:24] Speaker 00:
Okay, unless my colleagues have further questions, you're out of time, but we'll give you two minutes for rebuttal.

[00:16:32] Speaker 01:
Thank you.

[00:16:35] Speaker 00:
Okay, Ms.

[00:16:35] Speaker 00:
Triana.

[00:16:38] Speaker 04:
Good morning, Your Honor.

[00:16:39] Speaker 04:
May it please the Court.

[00:16:40] Speaker 04:
My name is Monica Triana from the U.S.

[00:16:42] Speaker 04:
Department of Justice, and I represent the United States on this appeal.

[00:16:46] Speaker 04:
As to both headings 3923 and 3924, the trial court conducted the necessary two-step classification analysis.

[00:16:53] Speaker 04:
It identified the proper meaning of each of the relevant tariff provisions in accordance with its plain meaning as required under GRI 1, and then properly applied the facts in determining that the merchandise fell within those provisions.

[00:17:06] Speaker 04:
As to headings

[00:17:07] Speaker 04:
3923, the trial court properly classified the goods of merchandise as articles for the conveyance or packing of goods.

[00:17:14] Speaker 04:
That is the class or kind of merchandise under 3923 for the conveyance or packing of goods.

[00:17:19] Speaker 04:
And the trial court determined that the meaning of the tariff, in accordance with the plain language, properly held that it would cover goods of class if used to carry or transport other goods of any kind.

[00:17:32] Speaker 04:
And in making that determination, the court looked to the terms of the heading and then the dictionary definitions for any undefined terms.

[00:17:39] Speaker 04:
And this interpretation is confirmed by review of the explanatory notes, 3923, which include the list of exemplars used to carry or transport goods, some of which are carrying and transport personal items, and some of which carry and transport commercial products.

[00:17:55] Speaker 04:
And although the proper meaning of the tariff is a question of law, review de novo, this

[00:18:01] Speaker 04:
trial court's analysis of the heading was proper and should be affirmed.

[00:18:05] Speaker 04:
And as I think the panel mentioned earlier, the EN specifically includes a list of sacks and bags.

[00:18:13] Speaker 04:
And then second, the court determined that the merchandise, properly determined that the merchandise issue fell within heading 3923 as it was construed, which is a question of law.

[00:18:24] Speaker 03:
Excuse me, I'm sorry.

[00:18:25] Speaker 03:
This is such more, I want to understand procedurally

[00:18:29] Speaker 03:
When you're looking at 3923 and trying to understand what it encompasses, like for example, can goods imply food or not, that kind of thing, if you're trying to look at 3923 and understand it, is it wrong to look at the specific articulated things underneath, like 3923.21, which includes grocery store bags or

[00:18:58] Speaker 03:
the one that includes re-closable one-gallon bags, which I assume are basically Ziploc bags with a little slide on the top in a one-gallon size.

[00:19:08] Speaker 03:
So is it wrong for me to look at those and say, well, those inform what Congress meant when they said articles for the conveyance or packing of goods?

[00:19:19] Speaker 04:
Sure.

[00:19:19] Speaker 04:
So I would agree with Mr. Rohl that we start out with the language of the heading.

[00:19:23] Speaker 04:
That is what the case law dictates to us, and we would look at conveyance or packing of goods.

[00:19:28] Speaker 03:
I understand that we start with the language of the heading, but this entire thing that I'm looking at was enacted by Congress, correct?

[00:19:34] Speaker 03:
This HTSUS, not just 3923, but the subcategories were also enacted by Congress, right?

[00:19:41] Speaker 04:
So yes, I would say that they definitely inform the analysis.

[00:19:44] Speaker 04:
I was just saying that obviously we would start with the language of the heading, and when we get past that, because these clearly appear to convey and pack good, the language of the subheading should inform

[00:19:55] Speaker 04:
an analysis of what falls within a particular heading, certainly.

[00:20:00] Speaker 03:
Well, in fact, wouldn't it be problematic if I construed 3923 itself in a manner which didn't allow all of the subheadings to fall within it?

[00:20:10] Speaker 03:
Wouldn't that be problematic?

[00:20:12] Speaker 04:
It would indicate that the analysis that you're conducting of the heading was not proper.

[00:20:21] Speaker 02:
Council, this is Judge O'Malley.

[00:20:23] Speaker 02:
Should we be focused then on

[00:20:25] Speaker 02:
I mean, when we're trying to look at what's the most specific heading, should we be focused on whether or not there's contemplation of packing of food and beverage as opposed to just packing of goods generally?

[00:20:39] Speaker 04:
No.

[00:20:40] Speaker 04:
Packing of food and beverage is not a relevant determination, either for heading 3923 or heading 3924.

[00:20:46] Speaker 04:
Food and beverage comes in because of the reliance by appellant on SGI.

[00:20:52] Speaker 04:
And as I think Your Honor mentioned earlier, SGI's focus really was on 4202 versus 3924.

[00:21:00] Speaker 04:
And they did introduce some generic analysis under 4202, finding what characteristics

[00:21:06] Speaker 04:
were considered in all the headings of 4202.

[00:21:09] Speaker 04:
And then they had essentially a carve out for what didn't fall under 4202 at the time.

[00:21:15] Speaker 04:
And that's where food and beverage came in.

[00:21:17] Speaker 04:
It was a carve out to what doesn't fit under 4202 or what didn't at the time because the statute has since changed.

[00:21:25] Speaker 04:
So whether or not something

[00:21:27] Speaker 04:
is involved with food or beverage isn't relevant.

[00:21:30] Speaker 04:
It's not relevant for the conveyance or vacuum of goods, and it's not relevant for household articles, as is evident from the explanatory notes as what fits within them.

[00:21:39] Speaker 04:
I'm not saying that something that contains food or beverage couldn't fit in either of those headings.

[00:21:44] Speaker 04:
It's just not a relevant determination in whether specifically it's classified, the merchandise is classified under 3923.

[00:21:51] Speaker 04:
or 3924.

[00:21:52] Speaker 04:
3923 is a principle.

[00:21:53] Speaker 04:
Hey, counsel, this is Judge Moore.

[00:21:55] Speaker 03:
Will you just slow down a little?

[00:21:57] Speaker 04:
My ears aren't as fast as your voice.

[00:21:59] Speaker 04:
I'm so sorry.

[00:22:01] Speaker 04:
I will definitely slow it down a little bit.

[00:22:06] Speaker 00:
So what are we supposed to make of these lower court cases that SC Johnson calls to our attention, which seem to support its interpretation of 3923?

[00:22:16] Speaker 00:
They're just wrong?

[00:22:18] Speaker 00:
How did that happen?

[00:22:20] Speaker 04:
A 3923 for the conveyance or packing of goods.

[00:22:23] Speaker 04:
I don't believe there's any lower court cases that discuss that.

[00:22:26] Speaker 04:
Are you referring to the household goods?

[00:22:31] Speaker 00:
I thought there were cases that had earlier talked about this as being commercial or bulk provision.

[00:22:41] Speaker 00:
Are you thinking about that?

[00:22:43] Speaker 04:
I'm sorry, I think you might be referencing, there were some agency decisions and we acknowledge that there are some agency decisions that generally state, they state that generally 3923 covers plastics used to pack or convey bulk or commercial items, but it's not limited there too.

[00:22:59] Speaker 04:
And the course review of the interpretation of the statute is NOVO in accordance with GRI 1.

[00:23:05] Speaker 04:
And GRI 1 dictates that it covers goods of plastic used to carry or transport

[00:23:09] Speaker 04:
other goods of any kind, and the merchandise here fits in that category.

[00:23:13] Speaker 04:
An agency's decision can't ask to narrow the scope of a statute, what's plainly included in a statute, which here covers all plastic items principally used to convey and pack goods.

[00:23:26] Speaker 00:
I'm just wondering how that happened, that they arrived at an interpretation which seems contrary to the text of the statute.

[00:23:36] Speaker 04:
I can't say, I mean, as far as the agency's decisions, I can't say for sure.

[00:23:40] Speaker 04:
I think it might have been, it might have been because the prior version, the prior statute, the TSUS, might have been more limited as I believe 77220, which is something that the appellant has brought up, was more limited than 3923.

[00:23:58] Speaker 04:
And it got carried forward erroneously.

[00:24:01] Speaker 04:
But 3923 is not limited.

[00:24:04] Speaker 04:
uh... to the conveyance the packing or conveying of bulk or commercial items as is clear from the the plain language of the statute and the trial court uh... properly found that these prior rulings to be unpersuasive and there actually is a bind there's a ruling that was issued to S.T.

[00:24:20] Speaker 04:
Johnson's predecessor Dow Chemicals that actually classified uh... the the bags in heading thirty nine twenty three council what to what extent are we supposed to use common sense here i mean when you look at

[00:24:34] Speaker 02:
household articles of plastics.

[00:24:37] Speaker 02:
Pretty much the first thing you think of is plastic bags that we all use in our kitchens.

[00:24:44] Speaker 02:
So why isn't that supposed to be something we should consider?

[00:24:51] Speaker 04:
I think it certainly is something that you can consider.

[00:24:54] Speaker 04:
Here, household articles is an EO nominate provision covering goods over related to the household.

[00:25:01] Speaker 04:
And the trial court found that they were classified there.

[00:25:05] Speaker 04:
And we're not challenging that determination by the court that they were classified under household articles.

[00:25:09] Speaker 04:
I think the question is what the next step is.

[00:25:13] Speaker 04:
We found that they are classifiable in 3923, which is a principal use provision.

[00:25:17] Speaker 04:
And they're also classifiable in 3924, which is an EONOMINATE provision.

[00:25:21] Speaker 04:
So at that point, you do a conducted GRI 3A specificity analysis, and you look at the heading which provides the most specific description, and that's preferred to the heading that provides a more general description.

[00:25:36] Speaker 02:
You look at the provision with requirements that are more difficult to satisfy, and generally speaking... What if we disagree with you that it's an EONOMINATE provision?

[00:25:47] Speaker 04:
The court already did.

[00:25:51] Speaker 04:
If there are two principal use provisions, certainly there can't be two principal uses for the merchandise.

[00:25:57] Speaker 04:
But the court already conducted an analysis.

[00:25:59] Speaker 04:
They conducted a factual analysis.

[00:26:01] Speaker 04:
They made findings of the fact and conducted a proper carborundum analysis, determining that the class or kind of goods or the principal use of the merchandise is to convey impact goods.

[00:26:10] Speaker 04:
And it is classifiable under 3923.

[00:26:14] Speaker 00:
Therefore, did the court really make a determination that if they were both use provisions, that the principal use was household

[00:26:26] Speaker 00:
was conveyance of goods rather than household storage?

[00:26:31] Speaker 04:
Well, no, the court didn't conduct that analysis because the court found that 3924 was in the EO nominate provision.

[00:26:36] Speaker 04:
But there can only be one principal use of the merchandise.

[00:26:40] Speaker 04:
And the court conducted an analysis of the facts, looked at the carbondyne factors, applied the carbondyne factors, and determined that the principal use of the bag was for the conveyance or packing of goods.

[00:26:51] Speaker 00:
But if Judge O'Malley's question, the premise of Judge O'Malley's question is there

[00:26:56] Speaker 00:
we were to determine that they're both use provisions.

[00:27:00] Speaker 00:
Then we have to decide which use is predominant, is that right?

[00:27:05] Speaker 04:
Well, I don't believe that this court would make that determination because I don't think there's been... What you would look at under 3924, if that were a principal use provision, is whether the good was principally used in the home, and the court didn't look at that below.

[00:27:18] Speaker 04:
The court looked at... They found it was 3924 as a household article because it could be found in the home.

[00:27:24] Speaker 04:
The court did not find that it was principally used in the home.

[00:27:29] Speaker 04:
To the extent that there's more factual analysis that would be necessary and not just the analysis that was conducted under 3923, I believe the matter would have to be remanded back to the trial court to do, if further analysis of the facts was necessary to determine what the principal use of the goods was.

[00:27:46] Speaker 04:
That said, I believe that the court already did that and found that the principal use of the merchandise was for the conveyance and packing of goods.

[00:27:52] Speaker 04:
Even though they found it classifiable in heading 3924 as household goods,

[00:27:58] Speaker 04:
What the court found was it was a household good because it could be in the home.

[00:28:02] Speaker 04:
The court did not find that it was principally used in the home.

[00:28:06] Speaker 04:
As a matter of fact, a lot of the evidence that the trial court found and the findings of facts and a lot of the evidence on the record found that the principal use of the good was to transport merchandise or goods or food or anything from one place

[00:28:20] Speaker 04:
to another.

[00:28:21] Speaker 04:
I think that the factual findings are clear.

[00:28:24] Speaker 04:
There was no clear error in the court's factual determination as to what the principal use of the goods is.

[00:28:30] Speaker 00:
So if we decide that 3924 means goods typically found in the home, does that make an eonominate provision?

[00:28:41] Speaker 04:
I believe it does.

[00:28:42] Speaker 04:
It doesn't make it a use provision.

[00:28:44] Speaker 04:
And typically, a provision is either an eonominate provision or a use provision.

[00:28:52] Speaker 04:
Use provision is a very specific, it's a precise term of art in this area of the law with a legal standard where a care of classification is controlled by use.

[00:29:08] Speaker 04:
The term household article doesn't suggest or dictate a type of use or describe the manner in which an article is used.

[00:29:16] Speaker 04:
And for that reason, the court properly declined to read use into the provision.

[00:29:20] Speaker 04:
As the court stated, it suggests a location in which the article may be used.

[00:29:26] Speaker 04:
This provision simply doesn't meet the standard of a principal use provision.

[00:29:31] Speaker 00:
And a location at which it may be used, I would have thought you'd say it was a location where it's found.

[00:29:39] Speaker 04:
The trial court found the location in which it may be used, may be found.

[00:29:43] Speaker 04:
You're right, found, because they're not all utilitarian articles.

[00:29:47] Speaker 04:
And looking at each of the items listed in the explanatory notes, ashtrays, hot water bottles, dustins, drapes, they all have distinct and separate uses.

[00:29:58] Speaker 04:
There is no single use that defines

[00:30:00] Speaker 04:
this class are kind of goods.

[00:30:03] Speaker 04:
And actually, the fact that the principal use analysis under the carb random factor offers very little assistance in determining a class are kind of goods under 39, 24 is just further evidence that this isn't a principal use provision.

[00:30:16] Speaker 04:
If you look at those same examples, ashtrays, buckets, dust covers, they all have different physical features.

[00:30:22] Speaker 04:
They all have different uses.

[00:30:23] Speaker 04:
They all have different consumer expectations, different channels of trade, different environments of sales or marketing.

[00:30:30] Speaker 04:
The fact that that analysis does not assist in coming to a determination as to the principal use of the goods, as I said, it's further indication that this is not a principal use provision.

[00:30:42] Speaker 04:
And the prior precedent, nothing indicates that just having a household or a noun of household plus articles means that this is a principal use provision.

[00:30:55] Speaker 04:
As counsel for the appellant mentioned, most of those cases

[00:30:59] Speaker 04:
are interpreting the TSUS and most of them are interpreting household utensils, not household articles.

[00:31:05] Speaker 04:
And utensils, it's an entirely different interpretation of the question.

[00:31:09] Speaker 03:
Council.

[00:31:09] Speaker 03:
Council.

[00:31:10] Speaker 03:
Council.

[00:31:10] Speaker 03:
I've come to the conclusion you're physically incapable of slowing down and you don't actually need oxygen.

[00:31:15] Speaker 03:
Apart from that conclusion, the TSUS, am I right in understanding, it didn't use to say tableware, kitchenware, other household articles, which sound very much like nouns and not verbs, which is what I think of when I'm thinking use, but that it used to say articles chiefly used in the household.

[00:31:34] Speaker 03:
for blank, blank, blank, preparing, serving, storing, whatever.

[00:31:37] Speaker 03:
That feels like, to me, a use provision, just like articles for conveyance feels like a use provision.

[00:31:45] Speaker 03:
But, you know, tableware, kitchenware, household articles, trays, curtains, nursing nipples, that sounds like nouns.

[00:31:52] Speaker 03:
It just feels very eonomene to me.

[00:31:54] Speaker 03:
Is that fair?

[00:31:56] Speaker 03:
I mean, I realize this sounds kind of touchy and feely on my part, but I understand these use provisions to sort of suggest

[00:32:02] Speaker 03:
verb, use, use for something.

[00:32:07] Speaker 04:
I apologize, Dana, for my speaking fast, but I agree.

[00:32:11] Speaker 04:
This does not feel like a use provision.

[00:32:14] Speaker 04:
A use indicates doing something in a certain way, like 3923, convey or packing of goods.

[00:32:21] Speaker 04:
The predecessor statute

[00:32:22] Speaker 04:
did have a different language.

[00:32:24] Speaker 04:
Another reason that interpreting the predecessor statute is not relevant to interpreting the current statute.

[00:32:31] Speaker 00:
And if I can make one more point, there is no... Well, maybe the change in the language suggests that intent to change the scope of the provision.

[00:32:39] Speaker 00:
Absolutely, and I believe... To an eonominy provision.

[00:32:44] Speaker 04:
Absolutely, Your Honor, and I believe that's true for both 3923 and 3924.

[00:32:47] Speaker 04:
The difference in the language, and there's federal circuit case law on this,

[00:32:52] Speaker 04:
indicate, likely indicate a change in the meaning.

[00:32:57] Speaker 04:
I heard my buzzer went off again.

[00:33:00] Speaker 04:
Thank you.

[00:33:00] Speaker 04:
Thank you, Your Honors.

[00:33:01] Speaker 00:
Okay.

[00:33:02] Speaker 00:
Thank you, Ms.

[00:33:02] Speaker 00:
Triana.

[00:33:03] Speaker 00:
Mr. Roll, you have two minutes.

[00:33:05] Speaker 01:
Yes.

[00:33:06] Speaker 01:
Just to pick up on this discussion earlier about the breakouts under Heading 3923 that I see the court was referring to, like recosable with integral extruded closure, those things, those are statistical suffixes.

[00:33:19] Speaker 01:
So they don't inform, in fact, in pill attacks, this court said that the statistical suffixes don't inform the scope of the heading or even of the subheadings.

[00:33:27] Speaker 01:
In other words, they're not law, they're not statute.

[00:33:29] Speaker 01:
You would frustrate no statute by first interpreting what the heading means.

[00:33:34] Speaker 01:
So that was just to address the court's point on those breakouts where you seem to be focusing on very specific types of bags that are called out there.

[00:33:42] Speaker 01:
Those are not statutes.

[00:33:44] Speaker 01:
Number two.

[00:33:45] Speaker 01:
about this idea that it sounds kind of nounish to say household articles.

[00:33:49] Speaker 01:
So is the word toy.

[00:33:51] Speaker 01:
Toy is a noun.

[00:33:52] Speaker 01:
Yet this court's precedent says that's a use provision, because it has to be principally used for the amusement of children or adults.

[00:34:00] Speaker 00:
Yeah, but the toy provision is different in the sense that the dictionaries define toy in terms of use, whereas I don't see that the dictionaries here define household articles in terms of use.

[00:34:15] Speaker 01:
OK.

[00:34:15] Speaker 01:
But as a matter of policy, if the court were to conclude that household article is not a use provision, does that mean anything I'm going to put in my house, a forklift, an iPhone,

[00:34:26] Speaker 01:
Anything I put in the House, is it going to be a Household Article?

[00:34:28] Speaker 03:
That's going to be the implication of the decision if that's a... Well, first off, Council, I think they'd have to be made of plastic.

[00:34:34] Speaker 03:
And I'm not sure any person's made of plastic.

[00:34:37] Speaker 03:
Secondly, as far as your comment goes, wouldn't it depend, in fact, on whether they were otherwise called out in some other section that more specifically governed them as opposed to the General Household Article section?

[00:34:54] Speaker 01:
No, but anything, fair enough, but anything that is of plastic that I put in my house would therefore be a household article as long as it's not more specific.

[00:35:04] Speaker 00:
The heading means typically found in a house.

[00:35:07] Speaker 00:
It doesn't mean that you could bring a forklift into the house and therefore would be within the provision.

[00:35:14] Speaker 01:
But how would you define typically?

[00:35:17] Speaker 01:
How would one define typically in that case?

[00:35:19] Speaker 01:
In other words, you would have to

[00:35:20] Speaker 01:
figure out what is commonly used in the house to figure out if it's typically in the house.

[00:35:25] Speaker 01:
That's the use analysis.

[00:35:29] Speaker 01:
I know I'm out of time, just 30 seconds or less.

[00:35:33] Speaker 01:
There was one last thing I just want to address about the agency decisions that were referenced below.

[00:35:37] Speaker 01:
Of course you're not binding on this court, but the agency, the expert in this, over and over again has to struggle with all the types of things we're struggling with here in this case.

[00:35:46] Speaker 01:
And it consistently said, that's why Judge Deike referenced the commercial, or you're asking us about commercial and bulk articles.

[00:35:52] Speaker 01:
When they had to figure out where do we draw the line in terms of the breadth of 3923, their pronouncements, not just sometimes, but consistently said, we, the agency, interpreted to mean commercial and bulk items are what fall in 3923.

[00:36:05] Speaker 01:
And that's some indication.

[00:36:07] Speaker 00:
Thank you, Mr. Rolfe.

[00:36:08] Speaker 00:
I think we're out of time now.

[00:36:09] Speaker 01:
Thank you, Your Honors.

[00:36:10] Speaker 00:
OK, thank you.

[00:36:10] Speaker 00:
Thank you.

[00:36:11] Speaker 00:
Let's count until the case is submitted.

[00:36:13] Speaker 00:
Thank you.