[00:00:00] Speaker 04:
So we will begin our argument session with number 231648, Shamrock Building Materials Against the United States.

[00:00:13] Speaker 02:
Mr. Gill.

[00:00:13] Speaker 02:
Good morning, Your Honors.

[00:00:15] Speaker 02:
I am Patrick Gill of Council for Referring to Sandler, Travis, and Rosenberg.

[00:00:20] Speaker 02:
I'm joined this morning by my co-counsel, Don Cameron from Morris, Mallory, and Martin, who has been active in this case.

[00:00:30] Speaker 02:
We respectfully submit that the CIT committed reversible error in interpreting heading 8547.

[00:00:38] Speaker 02:
The issue in this appeal is whether the subject conduit tubing falls within the plain meaning of the unambiguous heading 8547, namely whether the subject conduit is, quote, lined with insulating material.

[00:00:58] Speaker 02:
Lined, insulating material is an unambiguous term expressed in plain, clear English language.

[00:01:07] Speaker 04:
Let me push back at least on the plainness of it.

[00:01:11] Speaker 04:
seems to me one question that would have to be answered is whether if there is any material that ever constitutes an insulator in the lining, is that enough?

[00:01:25] Speaker 04:
And I think the answer is clearly no, because if you lard insulating material with conducting material, that would not be enough.

[00:01:33] Speaker 04:
So one,

[00:01:34] Speaker 04:
I don't know, ambiguity.

[00:01:36] Speaker 04:
Anyway, one issue to resolve is whether the lining as a whole has to constitute insulating material.

[00:01:43] Speaker 04:
And then there's a question, as I think you recognize in your brief, insulating against what?

[00:01:48] Speaker 04:
Against friction?

[00:01:49] Speaker 04:
Against heat?

[00:01:50] Speaker 04:
Against electricity?

[00:01:51] Speaker 04:
Almost certainly electricity.

[00:01:55] Speaker 04:
You don't even make an argument about there being a heat thing.

[00:01:59] Speaker 04:
There's nothing plain about this.

[00:02:05] Speaker 02:
I think to answer that question is we have to look at what the lining material is.

[00:02:13] Speaker 02:
It's undisputed in this case that the tubing is lined with epoxy resin, melamine, and silicone.

[00:02:23] Speaker 02:
And those materials.

[00:02:25] Speaker 04:
And perhaps other stuff, although I don't see an issue being made of the other stuff.

[00:02:29] Speaker 02:
No.

[00:02:30] Speaker 02:
And under general interpretive rule 1B,

[00:02:34] Speaker 02:
as the statute reads, any reference in the heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with

[00:02:51] Speaker 02:
other materials and substances.

[00:02:55] Speaker 04:
But do I understand that the record is undisputed that there is some non-zero measurable resistance

[00:03:05] Speaker 04:
provided by the material.

[00:03:07] Speaker 04:
But, and I don't think there's any dispute about that, but the trade court concluded that it was also undisputed that in some real world commercial sense, the degree of the resistance would not be viewed as making the lining as a whole insulating material.

[00:03:32] Speaker 02:
Well, I think that's really

[00:03:35] Speaker 02:
You're getting close to the heart of the error in the decision below.

[00:03:39] Speaker 02:
There's no dispute that the lining of the interior coating varnishes on the inside of the tubes.

[00:03:50] Speaker 02:
And it's there.

[00:03:52] Speaker 02:
And that material itself is undisputably recognized as insulating material in the wealth of authorities that we cited in our brief.

[00:04:05] Speaker 02:
As you know, the government expert, Libous, conceded that the epoxy coating resists electrical current.

[00:04:12] Speaker 03:
And most importantly... But not enough to provide any real protection.

[00:04:16] Speaker 03:
I'm sorry, Your Honor.

[00:04:16] Speaker 03:
Not enough to provide any real protection.

[00:04:19] Speaker 03:
We both agreed also that it wasn't sufficient to insulate you from electric shock.

[00:04:27] Speaker 02:
Well, you know, its purpose here

[00:04:33] Speaker 02:
is to make sure.

[00:04:35] Speaker 03:
Let me ask you this, hypothetically.

[00:04:38] Speaker 03:
It seems like your view is if anything on the inside of this conduit falls within a class of materials that constitutes insulating material, that it goes in this category.

[00:04:50] Speaker 03:
Is that right?

[00:04:51] Speaker 03:
That's right.

[00:04:51] Speaker 03:
So if you have the smallest, like, barely, barely, you know,

[00:04:58] Speaker 03:
Like Micron, like Super, I don't even know what goes below Micron.

[00:05:02] Speaker 03:
It just, you know, it performs no function whatsoever, but it gets put in there.

[00:05:08] Speaker 03:
Is that enough?

[00:05:10] Speaker 03:
to put it in this category?

[00:05:11] Speaker 02:
Well, it does perform a function.

[00:05:13] Speaker 03:
No, I'm asking you a hypothetical.

[00:05:15] Speaker 03:
My hypothetical, we have a conduit that has some kind of material that is put on the inside of the conduit, but it performs no function whatsoever.

[00:05:24] Speaker 03:
I understand that might be a commercial impracticality, but let's just assume somebody's trying to do it to evade this category.

[00:05:32] Speaker 03:
With that, nonetheless, because it technically is an insulating material, even if it

[00:05:37] Speaker 03:
Doesn't perform any real real functions be enough to come into this category.

[00:05:43] Speaker 02:
Yes, I think it would because very simply If the material that's in there is an insulating material and it is it's it's 10 10 to

[00:05:54] Speaker 02:
owns meter and that is recognized even in their expert witnesses as within a range of insulation.

[00:06:02] Speaker 01:
So we've got... So would there ever be a de minimis amount of the coating material provided such that you would agree that it would not fit in this category?

[00:06:12] Speaker 02:
Well, I don't know what would be de minimis.

[00:06:14] Speaker 02:
If the entire lining of the air tube is this material, this insulating material, that is all the statute requires.

[00:06:24] Speaker 02:
We don't have to rebuild the plain words of the statute.

[00:06:30] Speaker 04:
You mentioned something just a minute ago about

[00:06:34] Speaker 04:
particular figure or result tend to the mind as something as recognized as recognized to be within the range of can you point to me what what that is yeah I'm sorry when I say point to I want you to hold up the joint appendix and give me a page number

[00:06:57] Speaker 04:
I need to look at it.

[00:06:59] Speaker 04:
I'm not making myself clear.

[00:07:02] Speaker 04:
I don't care what words are coming out of your mouth.

[00:07:05] Speaker 04:
I need to look at a piece of paper that I can read the words that you are referring to.

[00:07:15] Speaker 02:
Can I come back to you, if I understand that?

[00:07:18] Speaker 04:
This is extremely central, right?

[00:07:21] Speaker 04:
If you had testing data that put the measure of resistance is not a binary, you know, one or zero, it's on a range.

[00:07:32] Speaker 04:
You're saying it's within a range that people would consider it to be insulating.

[00:07:40] Speaker 04:
That's right at the heart of the case, so I need to look at the document.

[00:07:43] Speaker 02:
In the report from Goddrow, he talks about Dr. Goddrow, and that is in the appendix.

[00:07:54] Speaker 02:
Let's see.

[00:07:59] Speaker 01:
The study of appendix C6A, is that where you're going to take this, Counsel?

[00:08:04] Speaker 02:
I've got it now.

[00:09:02] Speaker 02:
page 192.

[00:09:08] Speaker 02:
It has the range for insulators, semiconductors, and conductors.

[00:09:16] Speaker 02:
If you want to take a second to find the page you're on.

[00:09:19] Speaker 02:
We have it.

[00:09:19] Speaker 02:
Yeah.

[00:09:20] Speaker 02:
So if you look at the bottom of the page there, it talks about the range for insulators.

[00:09:26] Speaker 02:
And it's 10-12 to 10-20.

[00:09:29] Speaker 02:
And it's a fact in this case that

[00:09:32] Speaker 02:
the mining, in this case, falls within that range.

[00:09:42] Speaker 04:
Where is the figure about the tests showing what the level of ohm-meters resistance was on the tests that your expert did?

[00:09:53] Speaker 02:
Well, this isn't a test, right?

[00:09:56] Speaker 02:
This is an entire section.

[00:09:57] Speaker 02:
It's not in just one page.

[00:09:59] Speaker 02:
Is this?

[00:09:59] Speaker 02:
Yeah, but is what you're reading as a test, or is it your expert said, here are the three polymers.

[00:10:06] Speaker 03:
Their characteristics put together give you this range?

[00:10:11] Speaker 02:
No.

[00:10:11] Speaker 02:
The Royal Witness, I think, said it was 10.2.

[00:10:16] Speaker 02:
There's no dispute that that's what it is.

[00:10:21] Speaker 02:
It's 10.2.

[00:10:23] Speaker 02:
And that is in that range.

[00:10:27] Speaker 02:
You mean 10.12?

[00:10:29] Speaker 02:
No, I mean 10.12.

[00:10:34] Speaker 02:
So it's in that range.

[00:10:36] Speaker 03:
And on this specific conduit, is this a test?

[00:10:45] Speaker 03:
Is it a test?

[00:10:47] Speaker 03:
Yeah.

[00:10:47] Speaker 03:
Did they test?

[00:10:48] Speaker 03:
Did they take a conduit, your client's conduit, and run a test to see?

[00:10:52] Speaker 02:
Oh, yes.

[00:10:53] Speaker 02:
There were two people who did tests on material.

[00:10:57] Speaker 02:
One was Dr. Jackson.

[00:10:59] Speaker 02:
And he tested the material.

[00:11:04] Speaker 02:
to find what the material was, what it was in, and what its ranges were.

[00:11:09] Speaker 02:
And he reported that to Dr. Gothrow, who then opined that the material was indeed insulating.

[00:11:17] Speaker 01:
So it's Figure 17, just to follow up on Judge Hughes' question, representative of a test made of this conduit in particular.

[00:11:26] Speaker 01:
So Figure 17 is on this page you took us to.

[00:11:29] Speaker 01:
Figure 17?

[00:11:33] Speaker 01:
Representative of a test here?

[00:11:35] Speaker 01:
I think that that would follow up on Judge Hughes' question.

[00:11:40] Speaker 02:
I'm sorry, Your Honor.

[00:11:42] Speaker 02:
I'm having trouble hearing you and understanding the question.

[00:11:44] Speaker 01:
Appendix page 192, who you took us to?

[00:11:47] Speaker 01:
192.

[00:11:48] Speaker 01:
I see a figure 17 on that page.

[00:11:50] Speaker 01:
Do you see it?

[00:11:51] Speaker 01:
It's like in the middle of the page.

[00:11:56] Speaker 01:
Figure 17?

[00:11:57] Speaker 01:
Figure 17, that's this?

[00:11:59] Speaker 01:
Yeah.

[00:11:59] Speaker 01:
Is that representative of a test, is the question?

[00:12:03] Speaker 03:
Yes.

[00:12:05] Speaker 03:
How?

[00:12:05] Speaker 03:
It says volume resistivity of various polymers from 12, and you look back at 12 and it's talking about the chemical structures of various polymers.

[00:12:14] Speaker 03:
It looks like there are other things that might be tests, like figure 13 and figure 15.

[00:12:23] Speaker 03:
This is talking about the composition of these polymers and what their general range is.

[00:12:31] Speaker 03:
At least the way I read it, but if I'm wrong,

[00:12:35] Speaker 03:
Tell me why I'm wrong.

[00:12:37] Speaker 02:
Well, I think the inquiry that has to be made here, and we have to look at what the court decided, the court found without question that

[00:12:54] Speaker 02:
And it's uncontested that a coating has a measurable electrically insulating property.

[00:13:00] Speaker 02:
That's on Appendix 12, 16, 12.

[00:13:04] Speaker 03:
That's different from whether it performs an actual insulating function.

[00:13:09] Speaker 03:
Well, almost anything, unless it's a superconductor, right, can have some kind of resistance.

[00:13:15] Speaker 03:
But that doesn't mean it's enough to be insulating.

[00:13:18] Speaker 02:
Well, that gets us then to what the court did here.

[00:13:22] Speaker 02:
And I think if I can get to that, I can explain why the inquiry that has to be made is, one, what is the material?

[00:13:34] Speaker 02:
And is it insulating material?

[00:13:36] Speaker 01:
And if it is that, if it covers... Let me ask you one other question.

[00:13:40] Speaker 01:
What is your best support here for why the coating has any commercially relevant electrically insulating effect?

[00:13:48] Speaker 01:
What's your best support?

[00:13:49] Speaker 01:
Point to an appendix page, preferably.

[00:13:51] Speaker 02:
Well, we've got to know and contest the fact that it does do that it's electrically insulating and it has that

[00:14:03] Speaker 02:
electrical insulating property.

[00:14:05] Speaker 02:
And the only thing I think you have to look at, at the provision as a whole, the

[00:14:16] Speaker 02:
The authorities that we relied upon in Appendix 352 to 426 corroborate the expert opinion testimony of Shamrock's witness that these materials are electrically insulating and physically insulating as well.

[00:14:35] Speaker 02:
The term lined with insulating material, that's what the term is, not lined with electrically insulating material.

[00:14:43] Speaker 02:
So we've gone off the rails if we get totally focused on the degree of electrical insulation that's supplied by this material.

[00:14:55] Speaker 02:
And what makes it even more difficult is that the court marooned to say that

[00:15:05] Speaker 02:
It created a statutory test as to what constitutes insulated electrical conduit, stating that the wiring must be capable of providing some unspecified but significant degree of electrical insulation, such as that it would, quote, significantly impede the flow of electrical current in the type of wiring circuits that would be found either around residential or commercial buildings.

[00:15:34] Speaker 02:
That is a manufactured requirement.

[00:15:38] Speaker 02:
That test draws no support from any language in the statute, from anything in the explanatory notes.

[00:15:44] Speaker 04:
Mr. Gill, Mr. Gill, I think we've gotten your argument.

[00:15:48] Speaker 04:
We've used all your rebuttal time.

[00:15:50] Speaker 04:
I will restore the rebuttal time, but it's time for us to hear from the government.

[00:15:54] Speaker 02:
OK.

[00:15:54] Speaker 02:
Thank you, gentlemen.

[00:16:04] Speaker 00:
Good morning, Your Honors, and may it please the Court, Nico Gurion, for the government.

[00:16:08] Speaker 00:
I'd like to pick up on just a couple of points that appellant raised in the argument.

[00:16:13] Speaker 00:
Appellant just said the terms of the heading is lined with insulating material.

[00:16:18] Speaker 00:
It doesn't say lined with electrically insulating material.

[00:16:21] Speaker 04:
When you pass that by and focus on what I think you could tell we were focused on, the question is, given that there is some undisputed measurable resistance, therefore some

[00:16:33] Speaker 04:
something that the word insulating might apply to, and the trade court said, but it has to be viewed in a commercially relevant way as insulating.

[00:16:47] Speaker 04:
Why isn't the evidence here on their side of that question putting aside all of their broader submissions?

[00:16:57] Speaker 00:
Well, Your Honor, it's undisputed that the testing done by witnesses for both parties found that the lining is not an insulator.

[00:17:06] Speaker 04:
Now you're switching terms, not an insulator, which might be a different thing from insulating material.

[00:17:17] Speaker 00:
You're right.

[00:17:17] Speaker 00:
Excuse me, Your Honor.

[00:17:18] Speaker 00:
It's not an insulating material in shamrocks tubing.

[00:17:22] Speaker 00:
It does not insulate the conduit tubing.

[00:17:25] Speaker 04:
Where is that?

[00:17:27] Speaker 04:
Here's what I'm remembering, and I'm going to look back at it.

[00:17:30] Speaker 04:
So there's a sentence or something to that effect in the trade court opinion that says, the parties agree.

[00:17:38] Speaker 04:
It cites to a page we don't have.

[00:17:40] Speaker 04:
And that's, I think, in a confidential

[00:17:43] Speaker 04:
portion of the transcript of the oral argument.

[00:17:47] Speaker 04:
So we have, I at least, have not found a way to look at it and understand exactly what that means.

[00:17:53] Speaker 04:
It's a very dicey premise to proceed on without knowing what it means if we are trying to figure out what might be a small but significant linguistic distinction.

[00:18:08] Speaker 00:
Absolutely, Your Honor.

[00:18:09] Speaker 00:
So if you look at JA 2368 from the oral argument transcript, this is where the trade court judge walks through a number of undisputed facts.

[00:18:20] Speaker 00:
And one of those facts is that neither Dr. Eliopoulos, the government's witness, nor Dr. Jackson found that the

[00:18:27] Speaker 00:
resistance level of the lining and the tubing rose to the level of an insulator.

[00:18:33] Speaker 00:
And this was in Dr. Jackson's report at JA 1656.

[00:18:37] Speaker 04:
Let me just tell you what I'm concerned about and you can tell me if I'm off base.

[00:18:45] Speaker 04:
Every time there's a switch from the phrase insulating material to an insulator, my antennas start to twitch that there's something possibly fishy going on here.

[00:18:57] Speaker 04:
And at least I remember, I think, maybe their expert said, well, I don't know whether you'd call it an insulator, but I definitely think it's an insulating material.

[00:19:06] Speaker 04:
Am I wrong to be focusing on that linguistic point?

[00:19:11] Speaker 00:
I understand the point you're making, Your Honor, but I don't think it makes a key difference here.

[00:19:23] Speaker 00:
insulating material.

[00:19:25] Speaker 00:
Because there's electrical resistance, which is a measure in ohms of how much of the current is being blocked.

[00:19:31] Speaker 00:
And then there's electrical resistivity.

[00:19:33] Speaker 00:
That's an innate characteristic of a particular material as to how much it blocks the current.

[00:19:40] Speaker 00:
And so the testing that was done here was looking at electrical resistance.

[00:19:44] Speaker 00:
We're going to put voltage against the tube without the lining and with the lining.

[00:19:49] Speaker 00:
And we're going to see how much of the current

[00:19:52] Speaker 00:
is blocked.

[00:19:53] Speaker 00:
That's what Dr. Meliopoulos did.

[00:19:55] Speaker 00:
He found that the resistance was 12 times the amount that would be needed to provide electrical insulation, and that's what Dr. Jackson did.

[00:20:04] Speaker 00:
And he found it was 1.2 ohms, slightly higher.

[00:20:08] Speaker 00:
But importantly, Dr. Jackson, in his report, and again in his deposition at JA664, said, yes, while the lining is slightly insulating as compared to no lining,

[00:20:22] Speaker 00:
It doesn't rise to the level of insulating the conduit tubing.

[00:20:30] Speaker 04:
And when using that language, was he talking about some commercially relevant sense?

[00:20:41] Speaker 04:
Did he tie that view to a marketplace perspective?

[00:20:48] Speaker 00:
I think Dr. Jackson, the Shamrock's witness, was speaking in his capacity as an expert, but it does apply into the commercial context that this conduit tubing is being used.

[00:21:01] Speaker 00:
If we look at the EN, we know this electrical conduit tubing is being used in permanent electrical installations like house wiring, where we have wires coming through the tubing with 110, 120 volts of current.

[00:21:15] Speaker 00:
And to Judge Cunningham, to your question,

[00:21:17] Speaker 00:
The reason Appellant has difficulty finding places in the record of how this is in a commercial context should be considered electrically insulating is because there aren't any.

[00:21:27] Speaker 00:
If you look at their product brochure, which is the one piece of material that they advertise this tubing to electrical contractors, that's at $15.89,

[00:21:36] Speaker 00:
They don't call it insulated electrical conduit tubing.

[00:21:39] Speaker 00:
There's no mention of its electrical insulating properties.

[00:21:43] Speaker 00:
The only thing they mention about the lining is that it provides protection for when you slide wires through.

[00:21:50] Speaker 04:
Even more, one of the benefits... Just to be clear, I thought there was one document

[00:21:56] Speaker 04:
that was it from the actual manufacturer that does refer to the electrical insulating material.

[00:22:06] Speaker 04:
It's not a marketing document.

[00:22:08] Speaker 04:
It was what a letter or something or an email responsive to a request for information or something like that.

[00:22:15] Speaker 00:
That's right, Your Honor.

[00:22:17] Speaker 00:
So the lining that goes in these tubes is not made by Shamrock.

[00:22:21] Speaker 04:
It's 1592.

[00:22:22] Speaker 00:
Exactly.

[00:22:23] Speaker 00:
So there are two letters from this third-party Pinterest.

[00:22:27] Speaker 00:
The first one says, we can't tell you exactly the makeup of this.

[00:22:36] Speaker 00:
Sorry, we can't tell you to make up the lining, but we can tell you it has epoxy, it has melamine, and it has silicone.

[00:22:43] Speaker 00:
Then at Shamrock's request, there's a follow-on letter where they say, it has epoxy, silicone, and melamine, and it has electrically insulating properties.

[00:22:53] Speaker 00:
But the analytical leap that that letter makes is actually the same one that Dr. Gotro, plaintiff's expert, makes, which is basically saying,

[00:23:02] Speaker 00:
epoxy melamine and silicone are these polymers that do have electrically insulating properties and so they're basically saying well because they have these properties and they're used in this lining that the lining is electrically insulating but but but that's a leap because it's not analyzing what the actual lining is doing.

[00:23:24] Speaker 03:
I guess your argument depends on the fact that or depends on us reading

[00:23:28] Speaker 03:
8547 to require, when it says insulating material, for the insulating material to have some kind of insulating function, rather than just be any kind of insulating material.

[00:23:40] Speaker 00:
That's right, Your Honor.

[00:23:41] Speaker 03:
Why is that correct?

[00:23:44] Speaker 00:
Well, for a number of reasons, I think, Your Honor.

[00:23:46] Speaker 00:
First, again, it's important to look at

[00:23:52] Speaker 00:
As I mentioned, the EN is clear that it's used in permanent electrical installations like house wiring.

[00:24:03] Speaker 00:
So these are electrical contractors and distributors who are buying this tubing to use when they're wiring up new

[00:24:10] Speaker 00:
new houses.

[00:24:12] Speaker 00:
We also know it from the context of where we find this heading.

[00:24:16] Speaker 00:
It's in Chapter 85 in Section 16, which covers, quote, electrical equipment.

[00:24:22] Speaker 00:
The note to Chapter 85 makes clear that it covers articles and materials of electrical equipment and apparatus due to their conducting or insulating properties.

[00:24:33] Speaker 00:
So we know we're talking in the context

[00:24:35] Speaker 00:
of electrical equipment and that language in the note is already contrasting conducting the flow of electricity versus insulating.

[00:24:44] Speaker 00:
So the terms of the heading itself as well as the context of the notes and the use of the tubing make clear that the trial court was correct that line with insulating material requires electrical insulation.

[00:24:58] Speaker 01:
Is it your position that that term line with insulating material in the heading is ambiguous?

[00:25:06] Speaker 00:
Your honor, it's ambiguous in the sense that they're not empty words.

[00:25:12] Speaker 00:
It's not enough to say we have some insulating stuff.

[00:25:17] Speaker 00:
Ergo, it's insulating.

[00:25:19] Speaker 00:
To have any meaning, it actually has to provide insulation to the particular product that we're looking at.

[00:25:28] Speaker 00:
And we know here that this lining, which is

[00:25:37] Speaker 00:
a millimeter thick simply does not do that.

[00:25:42] Speaker 03:
So how do we know that?

[00:25:44] Speaker 03:
I mean, I know we know the specific facts, but if we accept your argument that this line with insulating material has to have insulating function and is just not on there for whatever other reason, how do we know where is the line for what's an insulating function and what's not?

[00:26:06] Speaker 00:
Well, Your Honor, I don't think there's going to be a specific numerical line.

[00:26:11] Speaker 00:
I think it goes back to how a particular product is used in commerce.

[00:26:15] Speaker 00:
Again, electrical contractors and distributors who are using this product know when something is electrically insulating.

[00:26:24] Speaker 00:
There's actually really no dispute if you look at appellants brief at 25.

[00:26:28] Speaker 00:
what the definition of insulating means in the electrical context, preventing the passage, impeding the passage of electron.

[00:26:35] Speaker 04:
Preventing and impeding are two different things.

[00:26:40] Speaker 04:
But I thought it was undisputed that there was measurable resistance.

[00:26:49] Speaker 04:
So there's going to be some, I guess to use the language of 1592, will create a film with electrical insulating properties, provide a certain barrier against the transfer of electrons to the applied surface.

[00:27:03] Speaker 04:
So it's not zero.

[00:27:06] Speaker 04:
It's an important aspect of Shamrock's argument that once you get beyond its positive, you're in a realm of uncertainty.

[00:27:20] Speaker 04:
That would be strange.

[00:27:23] Speaker 00:
Well, Your Honor, you're correct.

[00:27:25] Speaker 00:
It is undisputed that there is a slight level of electrical resistance, but it doesn't follow the... That's what I was trying to ask you.

[00:27:34] Speaker 03:
Where does it go from slight level of resistance because of the composition of these materials, which everybody agrees has some level?

[00:27:44] Speaker 03:
of insulating properties, but it's not sufficient to find within the function of insulating materials under this.

[00:27:55] Speaker 03:
Are we looking at what you're saying is the commercial use of these and that there's no dispute these are not bought for electric insulating conduits and things like that?

[00:28:07] Speaker 00:
That's right, Your Honor.

[00:28:08] Speaker 00:
It's crucial to answer that question to look at the commercial use.

[00:28:14] Speaker 00:
These conduits are not purchased and then used for their electrically insulating boxes.

[00:28:20] Speaker 04:
And just remind me, what is the evidence for that from the

[00:28:25] Speaker 04:
commercial marketplace.

[00:28:29] Speaker 04:
One piece of evidence is that shamrocks or their manufacturers' marketing materials don't count it.

[00:28:37] Speaker 04:
Is there more than that?

[00:28:38] Speaker 04:
Or is that it?

[00:28:39] Speaker 04:
I'm not suggesting that might not be enough.

[00:28:42] Speaker 00:
Right.

[00:28:43] Speaker 00:
I think another key piece of evidence in the record, Your Honor, is it's undisputed that Shamrock is unaware of any customers who purchase the tubing because of its electrically insulating properties.

[00:28:54] Speaker 00:
So not only are they not advertising it as electrically insulating, but these electrical contractors and distributors are not buying it for its electrically insulating purposes.

[00:29:04] Speaker 00:
And far from it, one of the benefits they advertise

[00:29:07] Speaker 00:
is this idea of system grounding.

[00:29:11] Speaker 00:
That's a safety mechanism, where if there's an electrical fault within the tube, the conduit actually can conduct the electricity to ground.

[00:29:18] Speaker 00:
So it's not just that they're not advertising it as electrically insulating, they're advertising one of the benefits that it can conduct electricity to ground.

[00:29:28] Speaker 04:
Two of the things that I don't remember seeing anything in the record about would be two different kinds of comparisons.

[00:29:35] Speaker 04:
So one would be this conduit against some commercial product that undisputedly is an insulating material and comparing them to show that

[00:29:49] Speaker 04:
this is either close to it or much less than that.

[00:29:53] Speaker 04:
And the other is comparing this material to whatever might be in the market under that subheading in this 73 series that allows there to be aligning but only non-electrically insulating material.

[00:30:10] Speaker 04:
And neither of those comparisons, am I right, is in this record.

[00:30:14] Speaker 00:
That's correct, Your Honor.

[00:30:15] Speaker 00:
The comparison is simply the tubing

[00:30:18] Speaker 00:
with the lining versus without the lining.

[00:30:22] Speaker 04:
Unless there are any other questions.

[00:30:31] Speaker 04:
Mr. Gill about the figure on page 192, which seems to be a textbook or a research paper that says these kinds of materials, and now I'm using material not in the sense of a product, but just a compound or composition or something.

[00:30:52] Speaker 04:
and then comparing that to some result from, is it Dr. Jackson or something, that puts this material in the range of 10 to the 12th.

[00:31:06] Speaker 00:
Yes, Your Honor.

[00:31:06] Speaker 00:
So looking at figure 17 on 192, you're correct.

[00:31:11] Speaker 00:
This is just a chart looking at different polymers.

[00:31:15] Speaker 00:
The top one, PTFE, that's Teflon.

[00:31:19] Speaker 00:
And going down, you see PVC.

[00:31:22] Speaker 00:
These polymers, in general, what their recidivity is, what the inherent level of resistance

[00:31:33] Speaker 00:
All Dr. Gautreaux did was the other images you see, the spectra images, are confirming the presence of epoxy, melamine, and silicone.

[00:31:42] Speaker 00:
So what Dr. Gautreaux did was confirm the presence of epoxy, silicone, and melamine.

[00:31:49] Speaker 00:
Say in general, epoxy, silicone, and melamine have this level of recidivity.

[00:31:57] Speaker 00:
What he in a deposition himself just called a deduction set and therefore this lining is electrically insulated Thank you, thank you Mr.. Go five minutes for rebelling a Couple of points that I think need to be made the

[00:32:25] Speaker 02:
First thing is, in answer to Judge Taranto's question as to where you're going to find it in the record, if you go to 0835, you've got the tests that were performed by Dr. Jackson, and clearly you've got the boldages set forth there.

[00:32:49] Speaker 02:
And to Judge Cunningham's question, the numerous electrical insulation does not necessarily mean that it's not insulating material.

[00:33:01] Speaker 02:
And I think what we have to also look at here, and not forget about, is that there were 20 years of rulings by customs

[00:33:10] Speaker 02:
on almost the identical merchandise, but basically all with epoxy residences and so on.

[00:33:17] Speaker 02:
And every single one of these rulings, they held that it's properly classified at 8547.

[00:33:24] Speaker 02:
Now, no place.

[00:33:28] Speaker 04:
Can I just ask?

[00:33:29] Speaker 04:
So it's been a little while since I've looked at those rulings.

[00:33:37] Speaker 04:
is what I'm remembering, and then you'll just correct me.

[00:33:39] Speaker 04:
My recollection is that at least some of the rulings, maybe all of them, say to the extent that these are made of insulating materials, then of course they go into the 85 classification.

[00:33:53] Speaker 04:
but that they don't give us any real information about whether a particular product has a level of resistivity that would be considered and was at the time considered in the commercial setting insulating material.

[00:34:13] Speaker 04:
So they don't really help us on this particular matter.

[00:34:16] Speaker 02:
Well, because I think they properly didn't make that inquiry because it's not a legitimate inquiry under the statute.

[00:34:23] Speaker 02:
And what I can't grasp is why the government has nothing to say about those rulings and as to why they should not be followed and why they should not be given Skidmore deference.

[00:34:36] Speaker 02:
There should have at least have been a Skidmore analysis to determine whether the rulings had the power to persuade.

[00:34:44] Speaker 02:
And that was not done.

[00:34:45] Speaker 02:
It was ignored because

[00:34:46] Speaker 04:
The court rightly said, at one point, that the rulings, if I remember them right, are, to use a word, rather conclusory.

[00:34:59] Speaker 04:
They don't provide much reasoning.

[00:35:02] Speaker 04:
They say, if you have this insulating material lining it, then of course it goes under 85, but they don't provide much

[00:35:10] Speaker 04:
help in saying, here's how you can tell whether a particular product has that characteristic.

[00:35:18] Speaker 02:
Well, this kind of gets to Judge Hughes's question as well.

[00:35:22] Speaker 02:
What is significant?

[00:35:25] Speaker 02:
What's the magic number here that's going to get us in if we're going to employ that test?

[00:35:30] Speaker 02:
It would be an absolute nightmare for importers and CBP not to determine what is significant.

[00:35:38] Speaker 02:
We don't know.

[00:35:38] Speaker 02:
The court doesn't tell us what it is, but he knows it when he sees it, I guess.

[00:35:43] Speaker 02:
But we don't know.

[00:35:44] Speaker 02:
So what do we do?

[00:35:46] Speaker 02:
Every single shipment now would have to go to labs to be detected.

[00:35:50] Speaker 02:
tested to determine whether it's significant.

[00:35:53] Speaker 03:
Are the electrical conduits sold and marketed as having insulating materials in them?

[00:36:03] Speaker 02:
I don't know how they market it, and I don't know, to be frank, what marketing has to do with this.

[00:36:09] Speaker 03:
We do know that... You're not answering that question.

[00:36:12] Speaker 03:
because this would go to how we decide it.

[00:36:15] Speaker 03:
If there are specific products in America that are sold to contractors and the right says, these are conduits for electrical wiring that have insulating material and perform an insulating function, those are the ones we know are going to burn in this code.

[00:36:34] Speaker 03:
And if they're sold as not for that, and in fact, the government suggested these are sold

[00:36:39] Speaker 03:
with the suggestion that they have conductivity, which I think is opposite of insulating, then we know they don't belong.

[00:36:48] Speaker 02:
I think that's absolutely inaccurate.

[00:36:50] Speaker 02:
The way, you know, an electrical contractor knows what he's dealing with.

[00:36:56] Speaker 02:
There's two types, obviously, that we're involved in.

[00:36:58] Speaker 03:
But that's what I'm asking.

[00:37:00] Speaker 03:
Is there a group, and we didn't get them on this record, but if you deal with this kind of stuff, maybe you know, is there a group of

[00:37:08] Speaker 03:
of electrical conduits with insulating material that are marketed and sold to contractors saying these are electrical conduits with insulating materials that will provide, you know, sufficient impedance.

[00:37:23] Speaker 02:
I don't know whether they market it that way.

[00:37:26] Speaker 02:
Contractors who go buy this stuff at Tone Depot or anywhere else where they might get it, or directly from the manufacturers such as Shamrock,

[00:37:37] Speaker 02:
They're going to buy one of two types.

[00:37:40] Speaker 02:
They're going to buy the rigid type, which does not have any insulating material on it.

[00:37:45] Speaker 02:
It's lined only with zinc to prevent corrosion.

[00:37:48] Speaker 02:
And they're not going to spend the money to get a different type, which has the lining on it, which costs money to do, to manufacture it that way.

[00:38:01] Speaker 02:
So they know what they're buying, and they know how to use it.

[00:38:04] Speaker 02:
And they know online and lined, they wouldn't do some electricians if they didn't know that.

[00:38:11] Speaker 02:
They don't need a marketer to tell them that.

[00:38:16] Speaker 04:
You have used all of your rebuttal time, so we're going to declare the argument at an end.

[00:38:22] Speaker 04:
Thanks to both counsel, the case is submitted.