Legal Case Summary

The first is number 2011-1017, Chairman, USA, versus United States, Ms. Powell. Good morning. May I please the Court? The law courts decisions. But before you get started, just one note. Some of the documents that are in the joint appendix are virtually illegible. You really should be more careful of making sure that we have legible copies. Yes. I apologize. It was my fault. I put together the joint appendix. I didn't realize how bad the copies were until we actually started preparing for the argument. And I attempted to try to fix it, but the clerk said you already had the joint appendix. OK. We'll go ahead. I'm sorry. May it please the Court? The law court's decision should be reversed for two reasons. First, the law court's sale to apply additional US rules of interpretation 1A. That rule governs the classification of merchandise. The classification of imported merchandise in principle use tariff provisions. And the provision that's that issue on the appeal is a principle use provision. And that provision is preparation zero

. Can I just ask you a process question? With regard to the evidence that there's a dispute over the declaration, whether it should be in and out and so forth, a question which the CIT does not reach. And you brief it and you argue that it shouldn't be out. Don't we kind of have to resolve that? I mean, in other words, it doesn't the government agree. If we were to let it in at a minimum, there would be some disputed fact, right? At a minimum in the government's view. Or what is the government assume we decide it and we decide against you and let that information in. Where does that leave us in this case? What is the government wants to do? We believe that if you do, of course we do challenge the declaration, but if you do let it in, we believe that there's sufficient undisputed evidence to show that the court was wrong and that some of the judgements should be entered in our favor. You're basically contending that the use evidence is irrelevant, right? Let me, I guess go back. The problem with the fundamental problem with the court's decision is the use evidence, but the real fundamental problem is the court's failure to apply the note and then go and do the principal use analysis. Here the court totally skipped over, which is essentially step one in any classification case, which is determined the meaning and scope of the provision and skipped to the, what they call actual use of the merchandise. And yes, we do have a problem with just relying on purported actual use of the merchandise. But for example, primal light says that actual use is relevant to a principal use provision. The thing is, is that actual use, I would agree, would agree, actually use is relevant, but in this context, in the principal use analysis, you need to know what the class or kind of goods that we're talking about in the provision in order to determine whether this use or actual use is the same as the goods in the class or kind. Here the court just looked at sales material, which we did disputes and decided that this actual use is dispositive of the entire issue. Without the court didn't say that. The court didn't say anything about this actual use being dispositive. But essentially it was dispositive. The court didn't, like I said, the court first didn't do it, what it's supposed to do is define the scope of the provision preparation thereup. You can't even get to determining whether the merchandise falls within that provision without paying what that provision means. And that's with any kind of..

. I'm still confused. I mean, what primal light says is that it's interpreting the carburendum. And what it says is that where you have a principal use provision, you look to the physical characteristics of the goods. And one of the things that you look to is what goods with these physical characteristics are useful. And to the extent that the court of international trade said, well, these preparations are not primarily used for soups, they're used for sauces and salads and other things. Why isn't that relevant under carburendum, under primal light? As I was trying to convey is that it's relevant in the context of the principal use analysis in terms of knowing that use and comparing that use with the class or kind that's covered by the provision. In isolation, it's not even a principal use analysis. You might as well ignore the note and ignore carburendum and just look at the use. I'm sorry. I'm not understanding. So therefore, how would you say it is relevant, but you just have to go the extra do something in addition to that. And I'm not understanding it. You say it is. Actually, you is relevant if you do what? In the way the analysis is supposed to work, according to the note, is that you look at the note and it says you look at the tariff provision and you define what that tariff provision covers. Preparations, therefore, they're off. What's the class or kind of good covered by that provision? It's a note say that's what has to happen. If you look at the language of the note, I've got it right in front of me, RE1A, right? Right. It's a tariff package. It's a page with page V1. I'm actually just reading the note, but the note is actually quoted in the decision on page 14, A14 of our appendix. It says, the task classification controlled by use to be determined and afforded with the use of the United States at or immediately prior to the date of importation of that class or kind to which the imported goods belong

. Right. But how does that, right? That just says you, at the time of importation, determined if this is the same as goods of that class or kind, how do you translate that into some sort of mechanical requirement that the CIT or the custom they just must always define by giving examples the CICC things that would fall within a use provision and then decide whether these things are the same as our analogous to that. I don't understand where the government has come up with its notion that somehow the CIT aired by not defining a class. The class is a principle use, preparation for soup. I don't understand what additional definition you wanted the CIT to come up with. I don't see any error in how they did this analytically and that's really the heart of your problem it seems. Okay. If you actually go to the decision, there's no discussion in here. That's the court even said or determined, made a determination as to what that, say, determined this wasn't it. Why isn't that enough? This is not a preparation for soup. Not principally, it might be able to be used for that in a little bit of cases or some cases but there isn't any evidence that it principally falls within that use. So what I don't see the harm. So I will give you some examples. If you look at the Pistorino cases and the carbon-run in cases, all the principle use cases, the Essex manufacturing case, they all do the same analysis. They all, for instance, in the Minotalka brand case, the provision was toy. The court said, okay, toy. What does toy mean? It's something used for the amusement of children. Okay. But here, this is called preparation for soup. I don't see what additional discussion over that needs to take place. It's so plain and obvious on its face

. The language itself tells you what principle use is. So toys, fine, if they want to go further and say things for amusement, that's fine, but I don't see why it's required. You're hinging your error analysis on some procedural defect in the CIT opinion. Namely, it didn't explicitly define in different words, from the words that actually bear in the statute, what class of goods should fall within here. The CIT saw it playing on its face, and went ahead and applied it. I don't see what's wrong with that. And I don't see those other cases as supporting a requirement that they must do something different than what they did in all of these cases. What primal light and carbon amcase in order to figure out whether something is within the class of, or kind of a terraculacification, you look at a number of factors, and those were summarized in primal light as to whether the thing is commercially fungible with the class of kind of goods in the terraculacification. And certainly, the actual use to which the goods are put has to be one of the relevant considerations in determining whether it's part of that class or kind. No? As I said, I understand the court's point we're saying that it is relevant in the context of the principal use analysis comparing it with the class or kind that's covered by the provision. Even assuming that actually we don't dispute the actual use, which we do, there are still many other factors that the court never addressed in the carbon run of factors and they said, what is the meaning of that? We are dealing with some rejudgment so we can look at the record. And the record also shows that these products are much more costly than super preparations. So what are the considerations here, what are the carbon run in factors here that favor you? Certainly actual use doesn't cost, what are the other factors that favor you? Well, we put an evidence into the record that the actual use, and I understand the court's position, does mean towards our position only because and we put in the record products that are principally used as for preparations for soups and broth, that's not their only use, they can be used for other things. So even if you agree that the product can be used for other things, I don't think that necessarily weighs in aromatics favor. But going to the other carbon run in factors, we think that physical characteristics of merchandise, like that factor, weighs in aromatics favor. But this is sort of a paste. Right, but if you look at the explanatory notes, it's safe that the products can come in many different forms. And the explanatory notes are guidance as to the scope of the heading that's that issue, 204, it says it can come in a liquid, tablet, case, cubes, powders. Here we have a liquid. So we believe that the physical characteristics of the merchandise falls in aromatics favor. The expectations of the ultimate consumer

. Aromatics marketed its merchandise as preparations for soups and broths. They advertise it as it, I'm just going to go back, I'm sorry to have, but I was looking to the explanatory notes. Is this the explanatory notes? Is this shown at page nine? I just want to make sure I'm looking at the same thing because I'm not seeing what we're referring to in the explanatory notes. We say page nine of. Oh, great, I'm sorry. But I don't know if you want to tell me where it is and maybe appendix or in your brief. It's actually in the back of our brief. The explanatory notes. On, it's the second appendix on the back of our brief. So is it page 179? Is this still fine? I just want to make sure I'm looking at the same thing. Yes. All right, so it's the 21.04. Yeah. It seems to me the explanatory notes don't help you at all. I'm not saying what you think in the explanatory notes. I mean, it says preparations for soups requiring only the addition of water and milk. And then the other one. I mean, I'm not sure what in this explanatory notes. Well, as we pointed out in our brief is that you explanatory notes is guidance. And it says this category includes, it's not exhaustive list, but it just sort of gives you some guidance as to what's included in the explanatory

. What's included in the head? And what is it about that that helps you? I thought you were responding to Judge Dyke's point about how this is not really, you know, preparation for soup of broth and you pointed to the explanatory notes, it's helping your argument. Right, I was pointing it to in reference to the factor for the expectation. I think it was expectation of the consumer and probably most likely physical characteristics. Okay. The explanatory notes says preparations for soups are brought to find only the addition of water or milk. The marketing material for aromatics states that it readily remixes with water and milk. If you want to add things, that's fine, but if there's no requirement that you need to add things to it. The other thing that we think that helps favors the government is that it's clearly safe. They are generally put up as tablet, tape, cube, or empowered our liquid form, which means that they can come in many different forms. And this is a liquid form, it's a thick liquid. Well, wait a minute. That makes it sound like from the explanatory note you get coverage of absolutely everything. I mean soup in a liquid form is no one would construe that as a honey-like substance, a syrupy type of thing. So, I mean your argument is, with the explanatory notes that it can come in less form, you can't transition that into, therefore, it supports the carbonic factor, supports the government. Because here, the liquid form, it comes in, is not really a liquid form, people think of souping. Right. So, all of the covers, everything, therefore, it supports the government. We're not arguing that it's a liquid soup. We're arguing that it's a preparation for a soup. So, the liquid form, the viscous form, that's what we think it does favor us. Just like you have the lip-dened soup, it's in a powder or other types of preparations

. They come in different forms, and this one just happens to be one that's in a viscous liquid form. Okay, so what, the physical characteristic expectations of consumers, what else favor you? We also believe the channels of trade in which the merchandise moves, favors us. There's evidence in the records that the merchandise was sold in retail establishments such as whole foods, and that's where other preparations, principle use for soups and broths are also sold. I want to note that they also sell turkeys there. Does that make it fit into this category? No, but just to expect that a whole food, you should grocery store that sells every different kind of food. The fact that these things are sold in whole foods, transitions into support for the notion that it's a preparation for soup. See, I think that's the issue here, is that these factors have to be compared with the products that are in the class. It's not an isolation as a, whether it's stolen whole foods that makes it fall within the class. Is, whether the products that fall within the class, are they sold in whole foods? Okay, then let's move on to this merchandise. This merchandise sold in whole foods, maybe in the same section. That type of analysis, not just, you know, if we have a turkey, it's in whole foods, therefore it goes into this provision. But right now you have to overcome, you're the appellate. Yes. So you have to show us that there are facts in the records that support reversing below. Yes. And the fact that this product may be sold in whole foods in the abstract doesn't seem to me a fact that would support you being able to do that. That's what I'm trying to ask you to explain how that supports reversing some research. The other thing that, and on to that point, we also, at the lower level and in our joint appendix, we also have the, the acetate, but a Stanley Hope heart, who is our in-house expert on these type of products. And he actually does add some testimony to the fact that these products are sold in the same places as in whole foods, just like the products that belong to the class or kind. The other thing that I wanted to mention is that if you look at the sales materials, they call these products stocks and stocks to me. The constimate is a soup

. And so it's hard to argue that it's not a preparation for a soup when you're calling it a soup and you're holding it out to the public as a soup. So we... Anything else? The other thing that the one I also wanted to last thing I wanted to mention was that the economic practicality of still using the import is that they actually, I remember actually puts it somehow as using it for a soup and a broth. So there's evidence there that we think that favors us in terms of the carburetor and the factor. Thank you. We'll give you two minutes for our ball. Mr. Chair. May I please report? My name is Brian Scherer on behalf of Aramont. Aramont stands behind the lower courts decision and also lower courts application of a law to facts of record. Well, not so much though. I mean, you said your brief leans with you can decide this on other grounds and everywhere you go in your brief when you're making your case, you're citing to append to these sites which reference the declaration and the evidence that the CIT never even relied on a reference. They relied on one thing right, the two thousand police bill numbers. And it seems like virtually all of your argument is predicated on all of these other things that are found in the appendix in to evidence and documents that the district, the CIT can never look down. He said he never looked down. Understood. Clearly this panel can take into account matters of record that we're not considered by the trial court below. And I will have to we need to that we don't believe you need to. If you do, from our perspective, clearly the case would should be firm

. But even if you do not take in any account, any additional matters of record that we're not taking to account by CIT below. The court did in fact, are you suggesting that actual use is determinative and that we shouldn't consider the other carbon and factor? Absolutely not. All that uses what we want. To get to the other carbon factor, don't we have to look at the record and determine whether this affidavit that you submitted should be admitted into evidence. The CIT below did take into account various carbon and factors. It was not just simply accurate. No, but in terms of the record is to those that information from largely from that declaration that you submitted. It is largely from that declaration and is court determines that declaration is improper and that issue has been briefed and we would continue to argue that that declaration is completely proper. So 30 B6 witness in individual effort. Wait, did you say the court determined that was improper? No, no, no, no, no, no, no, no, no, I did not. I apologize. The CIT never relied on it. The CIT didn't rely. The CIT rather relied upon documentation, those of record some of which Mr. Zatun testified to in his deposition. Some of which Mr. Zatun testified to. 2003 sales figures. 2003 sales figures are one such document. We have Mr. White's deposition testimony who was a contemporaneous managing director of the company during the relevant time period who also testified to the types of sales that occurred during that time

. The customers, their uses of that product. The 2003 sales figure. How did he know what the uses of the product were by the customer? He was a vice president charge sales. He was the one that sold them to the very customers and it would say that he spoke to the customers. How did he know? That was his job. His job was vice president sales and should go out. In fact, he pointed out that these products often required point of sale where he had to go into the customer specifically and design specific products for that customer. I thought somebody admitted in there and there was some of deposition or declaration testimony where, and I think the government points to it where there's a person on your side said, well, I can't really attest to the fact that somebody in their home actually put it to this particular use. Which makes some sense to me because some, yeah, he's not there. He doesn't have firsthand knowledge of what every customer does when they take it home. So I thought the evidence kind of went the other way. I respectfully disagree. You're absolutely correct in that there is testimony that one would not know. The air mat does not specifically know what every end user. So the person that happens to buy the stock product at Whole Foods, what that customer may use that product for the whole. What's it that has sold for frozen TV dinners? Exactly. So I mean, if they're selling it to pinnacle foods for use and their frozen dinners and they're supplying literally large 12 kilo pales, they're aware and Mr. White testified to that. They're aware of how that is used in that fashion. So the fact that we've got a handful of potential small uses as a super broth of preparation there for is not to spot that it's been covered in specifically holds that. Well, but as Miss Powell points out, your own advertising stresses the availability for use as a broth and expressly says right at the top of the advertisement, a honey-like consistency that readily remixes with water to develop traditional stocks and broth. I mean, that's in fact one of the very first uses to be listed in your advertising perspective on page A63 for the product. And that seems to me that she's making an awfully good point. Kind of hard to say, doesn't fit within the explanatory note with advertisement like this. Your Honor, simply advertising, you know, if we could advertise and have it be sold, that would be great for all the advertisers of the world. The reality here is that the actual use of our product was not as a super broth. So this actually used from 2003 and quite clearly the statute says we've got to look at the Year of Importation, which is 2001. So while I'm not saying it's irrelevant, it certainly isn't anywhere near a dispositive. And when one of the primary uses that you suggest in your own advertising perspective is exactly to use the preparation for super broth, and we've got to figure out is that make it the principal use, but still you can't run away from your own advertisement. It's not like an in-ps, you could also think of using this as soup. I mean, it's pretty prominent in your advertisement. If you look at the various advertisements including all the recipes, you do come away with the possibility that can be used as a soup. Is there anything in the record to show the date of these advertisements? Because I don't recall saying that and I can't find it and maybe the document. I mean, it's just more just pointed out we've actually looked at it. Mr. White, generally refer to these. Did they compete with these where it's irrelevant time period? These were advertisements used during the relevant time period. And Mr. White further testified although we acknowledge that the document, we're focusing on a 2003 sales records are 2003 and also contained references back to 2002 sales figures in the prior year count. We'd also point out that Mr. White testified as to the types of customers that were in place throughout his time period, which included the 2001, and he identified the fact that the industrial customers and food service customers, which made up more than 80% of the total sales by ARON of these products. So now we've got the possibility that maybe among the less than 20% of the sales are occurring through retail stores such as Stop and Shop and Whole Foods, that maybe some portion of those people are using it as a preparation for a super broth

. I mean, that's in fact one of the very first uses to be listed in your advertising perspective on page A63 for the product. And that seems to me that she's making an awfully good point. Kind of hard to say, doesn't fit within the explanatory note with advertisement like this. Your Honor, simply advertising, you know, if we could advertise and have it be sold, that would be great for all the advertisers of the world. The reality here is that the actual use of our product was not as a super broth. So this actually used from 2003 and quite clearly the statute says we've got to look at the Year of Importation, which is 2001. So while I'm not saying it's irrelevant, it certainly isn't anywhere near a dispositive. And when one of the primary uses that you suggest in your own advertising perspective is exactly to use the preparation for super broth, and we've got to figure out is that make it the principal use, but still you can't run away from your own advertisement. It's not like an in-ps, you could also think of using this as soup. I mean, it's pretty prominent in your advertisement. If you look at the various advertisements including all the recipes, you do come away with the possibility that can be used as a soup. Is there anything in the record to show the date of these advertisements? Because I don't recall saying that and I can't find it and maybe the document. I mean, it's just more just pointed out we've actually looked at it. Mr. White, generally refer to these. Did they compete with these where it's irrelevant time period? These were advertisements used during the relevant time period. And Mr. White further testified although we acknowledge that the document, we're focusing on a 2003 sales records are 2003 and also contained references back to 2002 sales figures in the prior year count. We'd also point out that Mr. White testified as to the types of customers that were in place throughout his time period, which included the 2001, and he identified the fact that the industrial customers and food service customers, which made up more than 80% of the total sales by ARON of these products. So now we've got the possibility that maybe among the less than 20% of the sales are occurring through retail stores such as Stop and Shop and Whole Foods, that maybe some portion of those people are using it as a preparation for a super broth. That in of itself will not rise to the principal use analysis required there. Well, I imagine you would agree that it's possible that something's principal use could be clearly one thing, but that maybe one big customer could buy all of them and use it for something else. Right? Isn't that possible? Absolutely, and in primal light and clear-and-and-marketing for that. That's quite clear. Specifically point out the use of a race car for advertising purposes, and the fact that it still is a race car. But that's not what we have here at all. And in fact, the primal light decision, I would argue, is spot on here. The primal light court specifically rejected the same reason. I understand all this fact question, though. That's what is concerning me. Both parties seem to think there's no dispute of fact, and each person is entitled to summary judgment, but it seems like all the things you're disputing are facts. What is the principal use of this? Well, some of the advertising says, do your guide says, in 2001, people weren't using it principally for soup. Why doesn't that make this a factual question? There is no evidence that the principal use in 2001 was as a superprote of preparation, therefore, absolutely not in the record. What about a declaration by the government witness that your friend is referring to a show? Mr. Hoper has no knowledge and is unable to testify specifically as to 2001, as to how the air mount products were used. The only evidence out there is Mr. White's deposition testimony is Mr. Shtun's deposition to testimony. Mr. Shtun's appetite, all of which are consistent on the use of product in 2001. What page of the appendix is there declaration? Mr

. That in of itself will not rise to the principal use analysis required there. Well, I imagine you would agree that it's possible that something's principal use could be clearly one thing, but that maybe one big customer could buy all of them and use it for something else. Right? Isn't that possible? Absolutely, and in primal light and clear-and-and-marketing for that. That's quite clear. Specifically point out the use of a race car for advertising purposes, and the fact that it still is a race car. But that's not what we have here at all. And in fact, the primal light decision, I would argue, is spot on here. The primal light court specifically rejected the same reason. I understand all this fact question, though. That's what is concerning me. Both parties seem to think there's no dispute of fact, and each person is entitled to summary judgment, but it seems like all the things you're disputing are facts. What is the principal use of this? Well, some of the advertising says, do your guide says, in 2001, people weren't using it principally for soup. Why doesn't that make this a factual question? There is no evidence that the principal use in 2001 was as a superprote of preparation, therefore, absolutely not in the record. What about a declaration by the government witness that your friend is referring to a show? Mr. Hoper has no knowledge and is unable to testify specifically as to 2001, as to how the air mount products were used. The only evidence out there is Mr. White's deposition testimony is Mr. Shtun's deposition to testimony. Mr. Shtun's appetite, all of which are consistent on the use of product in 2001. What page of the appendix is there declaration? Mr. Shtun's appetite is at 8.256. I'm going to talk about their declaration. Mr. Hoper's declaration? Yes. Mr. Hoper's declaration is at 8.754. Thank you. Great. Thank you. Mr. Hoper's declaration paragraph 9 is consistent with a lower fort spining that this product is using a variety of ways, and therefore, 206 rather than 204 is a problem. Going back to the primalite decision and our position that primalite directly supports the evidence, the affirmation of the CIT opinion, the primalite court specifically rejected the government's rationale that actually somehow should not come into play here. And I'm quoting what the government in effect urges is that the class are kind of good referred to in AI1A, comprises not the particular species of which the merchandise is a member, but a much broader genus to which that species belongs. The government's construction will make it impossible to determine with confidence the scope of any principal use provision, since the scope of the provision would depend on how broadly customs chose to characterize the chance. I don't think the government actually argued you can't look at actual use evidence. I mean, we went through that with Judge Dyke quite extensively and this oral argument, I think that her complaint, as I understand it, is the only thing cited by the CIT judge for support was not Mr. White's declaration, which you correctly point out, goes back to 2001, but actual use evidence from 2003, which is kind of a hard thing to base summary judgment on given that we're supposed to be looking at the 2001 timeframe. And maybe I'm misunderstanding her argument, but that's the way I understand her argument. The court, the lower court also looked at the physical characteristics of merchandise, talked about the laborious complex process that goes into making this product, talked about the guillotine of phones with slow roasting and the multiple days that goes into this

. Shtun's appetite is at 8.256. I'm going to talk about their declaration. Mr. Hoper's declaration? Yes. Mr. Hoper's declaration is at 8.754. Thank you. Great. Thank you. Mr. Hoper's declaration paragraph 9 is consistent with a lower fort spining that this product is using a variety of ways, and therefore, 206 rather than 204 is a problem. Going back to the primalite decision and our position that primalite directly supports the evidence, the affirmation of the CIT opinion, the primalite court specifically rejected the government's rationale that actually somehow should not come into play here. And I'm quoting what the government in effect urges is that the class are kind of good referred to in AI1A, comprises not the particular species of which the merchandise is a member, but a much broader genus to which that species belongs. The government's construction will make it impossible to determine with confidence the scope of any principal use provision, since the scope of the provision would depend on how broadly customs chose to characterize the chance. I don't think the government actually argued you can't look at actual use evidence. I mean, we went through that with Judge Dyke quite extensively and this oral argument, I think that her complaint, as I understand it, is the only thing cited by the CIT judge for support was not Mr. White's declaration, which you correctly point out, goes back to 2001, but actual use evidence from 2003, which is kind of a hard thing to base summary judgment on given that we're supposed to be looking at the 2001 timeframe. And maybe I'm misunderstanding her argument, but that's the way I understand her argument. The court, the lower court also looked at the physical characteristics of merchandise, talked about the laborious complex process that goes into making this product, talked about the guillotine of phones with slow roasting and the multiple days that goes into this. And that is not shown upon the 2003 document in and of itself. So there was more than the CIT did address below more than just the actual use test portion of the carburene test. It went through and talked about physical characteristics of the merchandise, expensive merchandise. And it went through several of the carburene effect and concluded with respect to all of them, that the government's position was improper and Air Mods position was correct. And I think we are on the, there are several documents hanging out here. There's the declaration of Mr. Satoon and the attachments. There's a supplemental declaration. And then there's another declaration by another one of you, is it Mr. White? I'm sorry, there's an affidavit. Affidavit. No, no, no, no. There's deposition, deposition testimony, Mr. White. That's probably right. And that was part of the record that the CIT had before. Correct. Deposition testimony, Mr. White, deposition testimony of Mr. Satoon. Declaration one of Mr

. And that is not shown upon the 2003 document in and of itself. So there was more than the CIT did address below more than just the actual use test portion of the carburene test. It went through and talked about physical characteristics of the merchandise, expensive merchandise. And it went through several of the carburene effect and concluded with respect to all of them, that the government's position was improper and Air Mods position was correct. And I think we are on the, there are several documents hanging out here. There's the declaration of Mr. Satoon and the attachments. There's a supplemental declaration. And then there's another declaration by another one of you, is it Mr. White? I'm sorry, there's an affidavit. Affidavit. No, no, no, no. There's deposition, deposition testimony, Mr. White. That's probably right. And that was part of the record that the CIT had before. Correct. Deposition testimony, Mr. White, deposition testimony of Mr. Satoon. Declaration one of Mr. Satoon, which the government challenged at a late date, which then resulted in our seeking as well. Yeah, but I'm talking about what the CIT had before. And I thought the CIT clearly said that they weren't considering the issue that was the matter. Yes, understood. I was right, the right deposition and the Zatoon deposition, even though themselves were more than provide. And those were in, those were in a matter of dispute. So what was disputed, the declaration, the subsequent declaration of the... Worshans and Mr. Zatoon's declaration. And then there's even a supplemental declaration. That wasn't, that wasn't even presented to the... That was presented to the court below. What did the court take off the bill? Consistent with its decision that it was not going to consider the government's motion to strike because it didn't rely upon the initials of Tune F. Affidavit did not reach the decision on the need for supplement. We know they didn't look at the supplemented declaration. Correct. It's part of the record, but no, they did not look at it

. Satoon, which the government challenged at a late date, which then resulted in our seeking as well. Yeah, but I'm talking about what the CIT had before. And I thought the CIT clearly said that they weren't considering the issue that was the matter. Yes, understood. I was right, the right deposition and the Zatoon deposition, even though themselves were more than provide. And those were in, those were in a matter of dispute. So what was disputed, the declaration, the subsequent declaration of the... Worshans and Mr. Zatoon's declaration. And then there's even a supplemental declaration. That wasn't, that wasn't even presented to the... That was presented to the court below. What did the court take off the bill? Consistent with its decision that it was not going to consider the government's motion to strike because it didn't rely upon the initials of Tune F. Affidavit did not reach the decision on the need for supplement. We know they didn't look at the supplemented declaration. Correct. It's part of the record, but no, they did not look at it. Did Zatoon or White in the deposition testimony state that the 2000 and three uses were typical of the period in question here, 2000? Mr. White specifically faced upon his own knowledge, testified that the types of products and the uses during the entire relevant time period. He didn't need to focus. But in 2000, he said where does he tell us that the uses during the entire time period were not primarily for soups but for other things. The White deposition, which is at 8 320 and 321 of the record. Describe the bones and the stock and then add further at. He talked about. At page 77 through 80 of his deposition at a 332, he was shown the same exhibit and he said he's seen that and then he just went on to describe the fact that the sales in prior years have been extensively focused on the industrial uses as well as the food service. Where does he say that? Would you be looking for 328 page 63, the top right hand side? Is that? Thank you. Yes. Maybe what you think. I'm not sure. I'm. That is part of it. That's all. We're all working for me. From a very poorly copied record. Obviously the court would would like we're more than happy to work with the government and making sure that the record is one that's legible. Why don't you submit something that is clear or we're. We're going to have to leave this. Particularly this sales figure

. Did Zatoon or White in the deposition testimony state that the 2000 and three uses were typical of the period in question here, 2000? Mr. White specifically faced upon his own knowledge, testified that the types of products and the uses during the entire relevant time period. He didn't need to focus. But in 2000, he said where does he tell us that the uses during the entire time period were not primarily for soups but for other things. The White deposition, which is at 8 320 and 321 of the record. Describe the bones and the stock and then add further at. He talked about. At page 77 through 80 of his deposition at a 332, he was shown the same exhibit and he said he's seen that and then he just went on to describe the fact that the sales in prior years have been extensively focused on the industrial uses as well as the food service. Where does he say that? Would you be looking for 328 page 63, the top right hand side? Is that? Thank you. Yes. Maybe what you think. I'm not sure. I'm. That is part of it. That's all. We're all working for me. From a very poorly copied record. Obviously the court would would like we're more than happy to work with the government and making sure that the record is one that's legible. Why don't you submit something that is clear or we're. We're going to have to leave this. Particularly this sales figure. Data is the eligible. Understood. And. It's just a minute supplemental. Of course, you want to make clear air not position on the sales figures. The actual sales numbers, whether it's X dollars or Y dollars or really are not all that relevant here. What's relevant is sales figures don't show the use. The sales figures specifically show who they're sold to, but they don't specifically identify how that customer used it. That's Mr. White's definition testimony and talking about the use by these customers as flavor notes, this flavor profiles. The use by pinnacle as a flavor note for the TV dinners. So that's where the real driver here is. It's not whether they're $350,000 of sales and a given year or $300,000 of sales and a given year and a given customer. Thank you, Mr. Sure. As well, you have two minutes. I would like to address a couple of things that was said. My council. The court brought up the issue of sales figures for 2002 or 2001. And that was expressly asked to Arama witnesses about whether they have the 2001 and 2002 figures. And for the white deposition, that appeared on page 330 of the records

. Data is the eligible. Understood. And. It's just a minute supplemental. Of course, you want to make clear air not position on the sales figures. The actual sales numbers, whether it's X dollars or Y dollars or really are not all that relevant here. What's relevant is sales figures don't show the use. The sales figures specifically show who they're sold to, but they don't specifically identify how that customer used it. That's Mr. White's definition testimony and talking about the use by these customers as flavor notes, this flavor profiles. The use by pinnacle as a flavor note for the TV dinners. So that's where the real driver here is. It's not whether they're $350,000 of sales and a given year or $300,000 of sales and a given year and a given customer. Thank you, Mr. Sure. As well, you have two minutes. I would like to address a couple of things that was said. My council. The court brought up the issue of sales figures for 2002 or 2001. And that was expressly asked to Arama witnesses about whether they have the 2001 and 2002 figures. And for the white deposition, that appeared on page 330 of the records. Where I specifically asked him about the 2000 to 2000 first 2000, then I went on to 2002 and 2001. And he, if you read it on page 330, the upper right hand corner, he does not have the sales figures. He's remembering and trying to ballpark what they, not even the figures or what he can remember of the sales. And then for the tune with respect to the sales figures, if you look at your record and page 8291, again, there are no sales figures for 2001 or 2002. But do you have any reason to believe that the 2003 sales figures and uses are atypical in the 2001 would be any different? I do. The first reason that I have is that if you look at the sales figures, again, I do apologize for having the clear documents. And we will produce them to the court. But the documentation just has customer actual, what budgeted and actual figures. Arama sold a lot of different products. There are some products here that aren't even at issue in this case. There are easy sources, gravis, and then there are products that are issued here. So without some sort of evidence to show exactly how these were, what were used and how they were used, that's an issue we have with 2003 sales material. But yes, there is a question as to what the actual use of the product was. We need to figure out whether it was the product. That issue in this case. The other point I wanted to make is that council had maybe statements that the court looked at all of the car runs the sales. There's looked at the physical characteristics. The court went through in the beginning sort of its background section. And that's where the court went through and digested all of the facts that the parties could agree on. It didn't do it in the context of a principal use analysis and arrive at a finding. The last thing I wanted to mention is that the decisions, it's pretty telling

. Where I specifically asked him about the 2000 to 2000 first 2000, then I went on to 2002 and 2001. And he, if you read it on page 330, the upper right hand corner, he does not have the sales figures. He's remembering and trying to ballpark what they, not even the figures or what he can remember of the sales. And then for the tune with respect to the sales figures, if you look at your record and page 8291, again, there are no sales figures for 2001 or 2002. But do you have any reason to believe that the 2003 sales figures and uses are atypical in the 2001 would be any different? I do. The first reason that I have is that if you look at the sales figures, again, I do apologize for having the clear documents. And we will produce them to the court. But the documentation just has customer actual, what budgeted and actual figures. Arama sold a lot of different products. There are some products here that aren't even at issue in this case. There are easy sources, gravis, and then there are products that are issued here. So without some sort of evidence to show exactly how these were, what were used and how they were used, that's an issue we have with 2003 sales material. But yes, there is a question as to what the actual use of the product was. We need to figure out whether it was the product. That issue in this case. The other point I wanted to make is that council had maybe statements that the court looked at all of the car runs the sales. There's looked at the physical characteristics. The court went through in the beginning sort of its background section. And that's where the court went through and digested all of the facts that the parties could agree on. It didn't do it in the context of a principal use analysis and arrive at a finding. The last thing I wanted to mention is that the decisions, it's pretty telling. And I understand the court's views, but to us it's pretty telling how long it is just by reading some of the statements in the decisions. On page A14 the court says proper classification turns on the principal use of the subject merchandise, which is directly at odds with clarity and marketing and some of the other cases. The other statement that I wanted to point out was on page A15. It says in this case at box, our products are not principally used as supes and broth. I think those two have taken together. But it's the novel review. We can look at the records. Some regentment we can make a determination. The fact that the criminal national trade may have said something that's incorrect doesn't really affect this because the criminal national trade is not making facts. Some regentment, right? Yes, I agree. I just wanted to make sure that the court was aware that we wanted to point those statements out to sort of given indication as to where the court. I think the court was going with its analysis and how it ended up with its analysis. And for those reasons, Your Honor, we think that the lower courts decision should be reversed and some regentment entered into our favor. Okay, thank you. Thank both, Your Honor. Thank you. The case is submitted.

The first is number 2011-1017, Chairman, USA, versus United States, Ms. Powell. Good morning. May I please the Court? The law courts decisions. But before you get started, just one note. Some of the documents that are in the joint appendix are virtually illegible. You really should be more careful of making sure that we have legible copies. Yes. I apologize. It was my fault. I put together the joint appendix. I didn't realize how bad the copies were until we actually started preparing for the argument. And I attempted to try to fix it, but the clerk said you already had the joint appendix. OK. We'll go ahead. I'm sorry. May it please the Court? The law court's decision should be reversed for two reasons. First, the law court's sale to apply additional US rules of interpretation 1A. That rule governs the classification of merchandise. The classification of imported merchandise in principle use tariff provisions. And the provision that's that issue on the appeal is a principle use provision. And that provision is preparation zero. Can I just ask you a process question? With regard to the evidence that there's a dispute over the declaration, whether it should be in and out and so forth, a question which the CIT does not reach. And you brief it and you argue that it shouldn't be out. Don't we kind of have to resolve that? I mean, in other words, it doesn't the government agree. If we were to let it in at a minimum, there would be some disputed fact, right? At a minimum in the government's view. Or what is the government assume we decide it and we decide against you and let that information in. Where does that leave us in this case? What is the government wants to do? We believe that if you do, of course we do challenge the declaration, but if you do let it in, we believe that there's sufficient undisputed evidence to show that the court was wrong and that some of the judgements should be entered in our favor. You're basically contending that the use evidence is irrelevant, right? Let me, I guess go back. The problem with the fundamental problem with the court's decision is the use evidence, but the real fundamental problem is the court's failure to apply the note and then go and do the principal use analysis. Here the court totally skipped over, which is essentially step one in any classification case, which is determined the meaning and scope of the provision and skipped to the, what they call actual use of the merchandise. And yes, we do have a problem with just relying on purported actual use of the merchandise. But for example, primal light says that actual use is relevant to a principal use provision. The thing is, is that actual use, I would agree, would agree, actually use is relevant, but in this context, in the principal use analysis, you need to know what the class or kind of goods that we're talking about in the provision in order to determine whether this use or actual use is the same as the goods in the class or kind. Here the court just looked at sales material, which we did disputes and decided that this actual use is dispositive of the entire issue. Without the court didn't say that. The court didn't say anything about this actual use being dispositive. But essentially it was dispositive. The court didn't, like I said, the court first didn't do it, what it's supposed to do is define the scope of the provision preparation thereup. You can't even get to determining whether the merchandise falls within that provision without paying what that provision means. And that's with any kind of... I'm still confused. I mean, what primal light says is that it's interpreting the carburendum. And what it says is that where you have a principal use provision, you look to the physical characteristics of the goods. And one of the things that you look to is what goods with these physical characteristics are useful. And to the extent that the court of international trade said, well, these preparations are not primarily used for soups, they're used for sauces and salads and other things. Why isn't that relevant under carburendum, under primal light? As I was trying to convey is that it's relevant in the context of the principal use analysis in terms of knowing that use and comparing that use with the class or kind that's covered by the provision. In isolation, it's not even a principal use analysis. You might as well ignore the note and ignore carburendum and just look at the use. I'm sorry. I'm not understanding. So therefore, how would you say it is relevant, but you just have to go the extra do something in addition to that. And I'm not understanding it. You say it is. Actually, you is relevant if you do what? In the way the analysis is supposed to work, according to the note, is that you look at the note and it says you look at the tariff provision and you define what that tariff provision covers. Preparations, therefore, they're off. What's the class or kind of good covered by that provision? It's a note say that's what has to happen. If you look at the language of the note, I've got it right in front of me, RE1A, right? Right. It's a tariff package. It's a page with page V1. I'm actually just reading the note, but the note is actually quoted in the decision on page 14, A14 of our appendix. It says, the task classification controlled by use to be determined and afforded with the use of the United States at or immediately prior to the date of importation of that class or kind to which the imported goods belong. Right. But how does that, right? That just says you, at the time of importation, determined if this is the same as goods of that class or kind, how do you translate that into some sort of mechanical requirement that the CIT or the custom they just must always define by giving examples the CICC things that would fall within a use provision and then decide whether these things are the same as our analogous to that. I don't understand where the government has come up with its notion that somehow the CIT aired by not defining a class. The class is a principle use, preparation for soup. I don't understand what additional definition you wanted the CIT to come up with. I don't see any error in how they did this analytically and that's really the heart of your problem it seems. Okay. If you actually go to the decision, there's no discussion in here. That's the court even said or determined, made a determination as to what that, say, determined this wasn't it. Why isn't that enough? This is not a preparation for soup. Not principally, it might be able to be used for that in a little bit of cases or some cases but there isn't any evidence that it principally falls within that use. So what I don't see the harm. So I will give you some examples. If you look at the Pistorino cases and the carbon-run in cases, all the principle use cases, the Essex manufacturing case, they all do the same analysis. They all, for instance, in the Minotalka brand case, the provision was toy. The court said, okay, toy. What does toy mean? It's something used for the amusement of children. Okay. But here, this is called preparation for soup. I don't see what additional discussion over that needs to take place. It's so plain and obvious on its face. The language itself tells you what principle use is. So toys, fine, if they want to go further and say things for amusement, that's fine, but I don't see why it's required. You're hinging your error analysis on some procedural defect in the CIT opinion. Namely, it didn't explicitly define in different words, from the words that actually bear in the statute, what class of goods should fall within here. The CIT saw it playing on its face, and went ahead and applied it. I don't see what's wrong with that. And I don't see those other cases as supporting a requirement that they must do something different than what they did in all of these cases. What primal light and carbon amcase in order to figure out whether something is within the class of, or kind of a terraculacification, you look at a number of factors, and those were summarized in primal light as to whether the thing is commercially fungible with the class of kind of goods in the terraculacification. And certainly, the actual use to which the goods are put has to be one of the relevant considerations in determining whether it's part of that class or kind. No? As I said, I understand the court's point we're saying that it is relevant in the context of the principal use analysis comparing it with the class or kind that's covered by the provision. Even assuming that actually we don't dispute the actual use, which we do, there are still many other factors that the court never addressed in the carbon run of factors and they said, what is the meaning of that? We are dealing with some rejudgment so we can look at the record. And the record also shows that these products are much more costly than super preparations. So what are the considerations here, what are the carbon run in factors here that favor you? Certainly actual use doesn't cost, what are the other factors that favor you? Well, we put an evidence into the record that the actual use, and I understand the court's position, does mean towards our position only because and we put in the record products that are principally used as for preparations for soups and broth, that's not their only use, they can be used for other things. So even if you agree that the product can be used for other things, I don't think that necessarily weighs in aromatics favor. But going to the other carbon run in factors, we think that physical characteristics of merchandise, like that factor, weighs in aromatics favor. But this is sort of a paste. Right, but if you look at the explanatory notes, it's safe that the products can come in many different forms. And the explanatory notes are guidance as to the scope of the heading that's that issue, 204, it says it can come in a liquid, tablet, case, cubes, powders. Here we have a liquid. So we believe that the physical characteristics of the merchandise falls in aromatics favor. The expectations of the ultimate consumer. Aromatics marketed its merchandise as preparations for soups and broths. They advertise it as it, I'm just going to go back, I'm sorry to have, but I was looking to the explanatory notes. Is this the explanatory notes? Is this shown at page nine? I just want to make sure I'm looking at the same thing because I'm not seeing what we're referring to in the explanatory notes. We say page nine of. Oh, great, I'm sorry. But I don't know if you want to tell me where it is and maybe appendix or in your brief. It's actually in the back of our brief. The explanatory notes. On, it's the second appendix on the back of our brief. So is it page 179? Is this still fine? I just want to make sure I'm looking at the same thing. Yes. All right, so it's the 21.04. Yeah. It seems to me the explanatory notes don't help you at all. I'm not saying what you think in the explanatory notes. I mean, it says preparations for soups requiring only the addition of water and milk. And then the other one. I mean, I'm not sure what in this explanatory notes. Well, as we pointed out in our brief is that you explanatory notes is guidance. And it says this category includes, it's not exhaustive list, but it just sort of gives you some guidance as to what's included in the explanatory. What's included in the head? And what is it about that that helps you? I thought you were responding to Judge Dyke's point about how this is not really, you know, preparation for soup of broth and you pointed to the explanatory notes, it's helping your argument. Right, I was pointing it to in reference to the factor for the expectation. I think it was expectation of the consumer and probably most likely physical characteristics. Okay. The explanatory notes says preparations for soups are brought to find only the addition of water or milk. The marketing material for aromatics states that it readily remixes with water and milk. If you want to add things, that's fine, but if there's no requirement that you need to add things to it. The other thing that we think that helps favors the government is that it's clearly safe. They are generally put up as tablet, tape, cube, or empowered our liquid form, which means that they can come in many different forms. And this is a liquid form, it's a thick liquid. Well, wait a minute. That makes it sound like from the explanatory note you get coverage of absolutely everything. I mean soup in a liquid form is no one would construe that as a honey-like substance, a syrupy type of thing. So, I mean your argument is, with the explanatory notes that it can come in less form, you can't transition that into, therefore, it supports the carbonic factor, supports the government. Because here, the liquid form, it comes in, is not really a liquid form, people think of souping. Right. So, all of the covers, everything, therefore, it supports the government. We're not arguing that it's a liquid soup. We're arguing that it's a preparation for a soup. So, the liquid form, the viscous form, that's what we think it does favor us. Just like you have the lip-dened soup, it's in a powder or other types of preparations. They come in different forms, and this one just happens to be one that's in a viscous liquid form. Okay, so what, the physical characteristic expectations of consumers, what else favor you? We also believe the channels of trade in which the merchandise moves, favors us. There's evidence in the records that the merchandise was sold in retail establishments such as whole foods, and that's where other preparations, principle use for soups and broths are also sold. I want to note that they also sell turkeys there. Does that make it fit into this category? No, but just to expect that a whole food, you should grocery store that sells every different kind of food. The fact that these things are sold in whole foods, transitions into support for the notion that it's a preparation for soup. See, I think that's the issue here, is that these factors have to be compared with the products that are in the class. It's not an isolation as a, whether it's stolen whole foods that makes it fall within the class. Is, whether the products that fall within the class, are they sold in whole foods? Okay, then let's move on to this merchandise. This merchandise sold in whole foods, maybe in the same section. That type of analysis, not just, you know, if we have a turkey, it's in whole foods, therefore it goes into this provision. But right now you have to overcome, you're the appellate. Yes. So you have to show us that there are facts in the records that support reversing below. Yes. And the fact that this product may be sold in whole foods in the abstract doesn't seem to me a fact that would support you being able to do that. That's what I'm trying to ask you to explain how that supports reversing some research. The other thing that, and on to that point, we also, at the lower level and in our joint appendix, we also have the, the acetate, but a Stanley Hope heart, who is our in-house expert on these type of products. And he actually does add some testimony to the fact that these products are sold in the same places as in whole foods, just like the products that belong to the class or kind. The other thing that I wanted to mention is that if you look at the sales materials, they call these products stocks and stocks to me. The constimate is a soup. And so it's hard to argue that it's not a preparation for a soup when you're calling it a soup and you're holding it out to the public as a soup. So we... Anything else? The other thing that the one I also wanted to last thing I wanted to mention was that the economic practicality of still using the import is that they actually, I remember actually puts it somehow as using it for a soup and a broth. So there's evidence there that we think that favors us in terms of the carburetor and the factor. Thank you. We'll give you two minutes for our ball. Mr. Chair. May I please report? My name is Brian Scherer on behalf of Aramont. Aramont stands behind the lower courts decision and also lower courts application of a law to facts of record. Well, not so much though. I mean, you said your brief leans with you can decide this on other grounds and everywhere you go in your brief when you're making your case, you're citing to append to these sites which reference the declaration and the evidence that the CIT never even relied on a reference. They relied on one thing right, the two thousand police bill numbers. And it seems like virtually all of your argument is predicated on all of these other things that are found in the appendix in to evidence and documents that the district, the CIT can never look down. He said he never looked down. Understood. Clearly this panel can take into account matters of record that we're not considered by the trial court below. And I will have to we need to that we don't believe you need to. If you do, from our perspective, clearly the case would should be firm. But even if you do not take in any account, any additional matters of record that we're not taking to account by CIT below. The court did in fact, are you suggesting that actual use is determinative and that we shouldn't consider the other carbon and factor? Absolutely not. All that uses what we want. To get to the other carbon factor, don't we have to look at the record and determine whether this affidavit that you submitted should be admitted into evidence. The CIT below did take into account various carbon and factors. It was not just simply accurate. No, but in terms of the record is to those that information from largely from that declaration that you submitted. It is largely from that declaration and is court determines that declaration is improper and that issue has been briefed and we would continue to argue that that declaration is completely proper. So 30 B6 witness in individual effort. Wait, did you say the court determined that was improper? No, no, no, no, no, no, no, no, no, I did not. I apologize. The CIT never relied on it. The CIT didn't rely. The CIT rather relied upon documentation, those of record some of which Mr. Zatun testified to in his deposition. Some of which Mr. Zatun testified to. 2003 sales figures. 2003 sales figures are one such document. We have Mr. White's deposition testimony who was a contemporaneous managing director of the company during the relevant time period who also testified to the types of sales that occurred during that time. The customers, their uses of that product. The 2003 sales figure. How did he know what the uses of the product were by the customer? He was a vice president charge sales. He was the one that sold them to the very customers and it would say that he spoke to the customers. How did he know? That was his job. His job was vice president sales and should go out. In fact, he pointed out that these products often required point of sale where he had to go into the customer specifically and design specific products for that customer. I thought somebody admitted in there and there was some of deposition or declaration testimony where, and I think the government points to it where there's a person on your side said, well, I can't really attest to the fact that somebody in their home actually put it to this particular use. Which makes some sense to me because some, yeah, he's not there. He doesn't have firsthand knowledge of what every customer does when they take it home. So I thought the evidence kind of went the other way. I respectfully disagree. You're absolutely correct in that there is testimony that one would not know. The air mat does not specifically know what every end user. So the person that happens to buy the stock product at Whole Foods, what that customer may use that product for the whole. What's it that has sold for frozen TV dinners? Exactly. So I mean, if they're selling it to pinnacle foods for use and their frozen dinners and they're supplying literally large 12 kilo pales, they're aware and Mr. White testified to that. They're aware of how that is used in that fashion. So the fact that we've got a handful of potential small uses as a super broth of preparation there for is not to spot that it's been covered in specifically holds that. Well, but as Miss Powell points out, your own advertising stresses the availability for use as a broth and expressly says right at the top of the advertisement, a honey-like consistency that readily remixes with water to develop traditional stocks and broth. I mean, that's in fact one of the very first uses to be listed in your advertising perspective on page A63 for the product. And that seems to me that she's making an awfully good point. Kind of hard to say, doesn't fit within the explanatory note with advertisement like this. Your Honor, simply advertising, you know, if we could advertise and have it be sold, that would be great for all the advertisers of the world. The reality here is that the actual use of our product was not as a super broth. So this actually used from 2003 and quite clearly the statute says we've got to look at the Year of Importation, which is 2001. So while I'm not saying it's irrelevant, it certainly isn't anywhere near a dispositive. And when one of the primary uses that you suggest in your own advertising perspective is exactly to use the preparation for super broth, and we've got to figure out is that make it the principal use, but still you can't run away from your own advertisement. It's not like an in-ps, you could also think of using this as soup. I mean, it's pretty prominent in your advertisement. If you look at the various advertisements including all the recipes, you do come away with the possibility that can be used as a soup. Is there anything in the record to show the date of these advertisements? Because I don't recall saying that and I can't find it and maybe the document. I mean, it's just more just pointed out we've actually looked at it. Mr. White, generally refer to these. Did they compete with these where it's irrelevant time period? These were advertisements used during the relevant time period. And Mr. White further testified although we acknowledge that the document, we're focusing on a 2003 sales records are 2003 and also contained references back to 2002 sales figures in the prior year count. We'd also point out that Mr. White testified as to the types of customers that were in place throughout his time period, which included the 2001, and he identified the fact that the industrial customers and food service customers, which made up more than 80% of the total sales by ARON of these products. So now we've got the possibility that maybe among the less than 20% of the sales are occurring through retail stores such as Stop and Shop and Whole Foods, that maybe some portion of those people are using it as a preparation for a super broth. That in of itself will not rise to the principal use analysis required there. Well, I imagine you would agree that it's possible that something's principal use could be clearly one thing, but that maybe one big customer could buy all of them and use it for something else. Right? Isn't that possible? Absolutely, and in primal light and clear-and-and-marketing for that. That's quite clear. Specifically point out the use of a race car for advertising purposes, and the fact that it still is a race car. But that's not what we have here at all. And in fact, the primal light decision, I would argue, is spot on here. The primal light court specifically rejected the same reason. I understand all this fact question, though. That's what is concerning me. Both parties seem to think there's no dispute of fact, and each person is entitled to summary judgment, but it seems like all the things you're disputing are facts. What is the principal use of this? Well, some of the advertising says, do your guide says, in 2001, people weren't using it principally for soup. Why doesn't that make this a factual question? There is no evidence that the principal use in 2001 was as a superprote of preparation, therefore, absolutely not in the record. What about a declaration by the government witness that your friend is referring to a show? Mr. Hoper has no knowledge and is unable to testify specifically as to 2001, as to how the air mount products were used. The only evidence out there is Mr. White's deposition testimony is Mr. Shtun's deposition to testimony. Mr. Shtun's appetite, all of which are consistent on the use of product in 2001. What page of the appendix is there declaration? Mr. Shtun's appetite is at 8.256. I'm going to talk about their declaration. Mr. Hoper's declaration? Yes. Mr. Hoper's declaration is at 8.754. Thank you. Great. Thank you. Mr. Hoper's declaration paragraph 9 is consistent with a lower fort spining that this product is using a variety of ways, and therefore, 206 rather than 204 is a problem. Going back to the primalite decision and our position that primalite directly supports the evidence, the affirmation of the CIT opinion, the primalite court specifically rejected the government's rationale that actually somehow should not come into play here. And I'm quoting what the government in effect urges is that the class are kind of good referred to in AI1A, comprises not the particular species of which the merchandise is a member, but a much broader genus to which that species belongs. The government's construction will make it impossible to determine with confidence the scope of any principal use provision, since the scope of the provision would depend on how broadly customs chose to characterize the chance. I don't think the government actually argued you can't look at actual use evidence. I mean, we went through that with Judge Dyke quite extensively and this oral argument, I think that her complaint, as I understand it, is the only thing cited by the CIT judge for support was not Mr. White's declaration, which you correctly point out, goes back to 2001, but actual use evidence from 2003, which is kind of a hard thing to base summary judgment on given that we're supposed to be looking at the 2001 timeframe. And maybe I'm misunderstanding her argument, but that's the way I understand her argument. The court, the lower court also looked at the physical characteristics of merchandise, talked about the laborious complex process that goes into making this product, talked about the guillotine of phones with slow roasting and the multiple days that goes into this. And that is not shown upon the 2003 document in and of itself. So there was more than the CIT did address below more than just the actual use test portion of the carburene test. It went through and talked about physical characteristics of the merchandise, expensive merchandise. And it went through several of the carburene effect and concluded with respect to all of them, that the government's position was improper and Air Mods position was correct. And I think we are on the, there are several documents hanging out here. There's the declaration of Mr. Satoon and the attachments. There's a supplemental declaration. And then there's another declaration by another one of you, is it Mr. White? I'm sorry, there's an affidavit. Affidavit. No, no, no, no. There's deposition, deposition testimony, Mr. White. That's probably right. And that was part of the record that the CIT had before. Correct. Deposition testimony, Mr. White, deposition testimony of Mr. Satoon. Declaration one of Mr. Satoon, which the government challenged at a late date, which then resulted in our seeking as well. Yeah, but I'm talking about what the CIT had before. And I thought the CIT clearly said that they weren't considering the issue that was the matter. Yes, understood. I was right, the right deposition and the Zatoon deposition, even though themselves were more than provide. And those were in, those were in a matter of dispute. So what was disputed, the declaration, the subsequent declaration of the... Worshans and Mr. Zatoon's declaration. And then there's even a supplemental declaration. That wasn't, that wasn't even presented to the... That was presented to the court below. What did the court take off the bill? Consistent with its decision that it was not going to consider the government's motion to strike because it didn't rely upon the initials of Tune F. Affidavit did not reach the decision on the need for supplement. We know they didn't look at the supplemented declaration. Correct. It's part of the record, but no, they did not look at it. Did Zatoon or White in the deposition testimony state that the 2000 and three uses were typical of the period in question here, 2000? Mr. White specifically faced upon his own knowledge, testified that the types of products and the uses during the entire relevant time period. He didn't need to focus. But in 2000, he said where does he tell us that the uses during the entire time period were not primarily for soups but for other things. The White deposition, which is at 8 320 and 321 of the record. Describe the bones and the stock and then add further at. He talked about. At page 77 through 80 of his deposition at a 332, he was shown the same exhibit and he said he's seen that and then he just went on to describe the fact that the sales in prior years have been extensively focused on the industrial uses as well as the food service. Where does he say that? Would you be looking for 328 page 63, the top right hand side? Is that? Thank you. Yes. Maybe what you think. I'm not sure. I'm. That is part of it. That's all. We're all working for me. From a very poorly copied record. Obviously the court would would like we're more than happy to work with the government and making sure that the record is one that's legible. Why don't you submit something that is clear or we're. We're going to have to leave this. Particularly this sales figure. Data is the eligible. Understood. And. It's just a minute supplemental. Of course, you want to make clear air not position on the sales figures. The actual sales numbers, whether it's X dollars or Y dollars or really are not all that relevant here. What's relevant is sales figures don't show the use. The sales figures specifically show who they're sold to, but they don't specifically identify how that customer used it. That's Mr. White's definition testimony and talking about the use by these customers as flavor notes, this flavor profiles. The use by pinnacle as a flavor note for the TV dinners. So that's where the real driver here is. It's not whether they're $350,000 of sales and a given year or $300,000 of sales and a given year and a given customer. Thank you, Mr. Sure. As well, you have two minutes. I would like to address a couple of things that was said. My council. The court brought up the issue of sales figures for 2002 or 2001. And that was expressly asked to Arama witnesses about whether they have the 2001 and 2002 figures. And for the white deposition, that appeared on page 330 of the records. Where I specifically asked him about the 2000 to 2000 first 2000, then I went on to 2002 and 2001. And he, if you read it on page 330, the upper right hand corner, he does not have the sales figures. He's remembering and trying to ballpark what they, not even the figures or what he can remember of the sales. And then for the tune with respect to the sales figures, if you look at your record and page 8291, again, there are no sales figures for 2001 or 2002. But do you have any reason to believe that the 2003 sales figures and uses are atypical in the 2001 would be any different? I do. The first reason that I have is that if you look at the sales figures, again, I do apologize for having the clear documents. And we will produce them to the court. But the documentation just has customer actual, what budgeted and actual figures. Arama sold a lot of different products. There are some products here that aren't even at issue in this case. There are easy sources, gravis, and then there are products that are issued here. So without some sort of evidence to show exactly how these were, what were used and how they were used, that's an issue we have with 2003 sales material. But yes, there is a question as to what the actual use of the product was. We need to figure out whether it was the product. That issue in this case. The other point I wanted to make is that council had maybe statements that the court looked at all of the car runs the sales. There's looked at the physical characteristics. The court went through in the beginning sort of its background section. And that's where the court went through and digested all of the facts that the parties could agree on. It didn't do it in the context of a principal use analysis and arrive at a finding. The last thing I wanted to mention is that the decisions, it's pretty telling. And I understand the court's views, but to us it's pretty telling how long it is just by reading some of the statements in the decisions. On page A14 the court says proper classification turns on the principal use of the subject merchandise, which is directly at odds with clarity and marketing and some of the other cases. The other statement that I wanted to point out was on page A15. It says in this case at box, our products are not principally used as supes and broth. I think those two have taken together. But it's the novel review. We can look at the records. Some regentment we can make a determination. The fact that the criminal national trade may have said something that's incorrect doesn't really affect this because the criminal national trade is not making facts. Some regentment, right? Yes, I agree. I just wanted to make sure that the court was aware that we wanted to point those statements out to sort of given indication as to where the court. I think the court was going with its analysis and how it ended up with its analysis. And for those reasons, Your Honor, we think that the lower courts decision should be reversed and some regentment entered into our favor. Okay, thank you. Thank both, Your Honor. Thank you. The case is submitted