R2-008-1605, Fouse Group versus the United States. Mr. Yarko or Jarko? Jarko, Rana. A hard J, right? Right. All right, you have, just want to check, you've reserved six minutes for a bottle. Is that correct? That's correct. Okay. You can begin whenever you're ready. May it please the court. The question presented in this case is the proper tariff classification for Fouse Group, Inc.'s Tungin Group, Laminate flooring. The crux of the party's dispute is whether Chapter 44 note 4 excludes the imported articles from the fiberboard heading, 44-11, because the articles have been upgraded to the point that they're classifiable under another heading as Builders' joinery under heading 4418. The government concedes the chapter note for excludes some products from heading 44-11 by virtue of their inclusion in another heading
. The question is the extent of that exclusionary note, with Fouse maintaining that any operation that gives an article to the character of another heading excludes it from 44-11, and the government maintaining that only those operations not enumerated in the chapter note have that exclusionary effect. What's causing that chapter note 4, I suppose? That's correct, Your Honor. What do you think it, what is the referent for it as you understand it? Your Honor, it, we believe, refers to any operation that is any of the enumerated operations or any other operation such that the effect of the chapter note is to say that if an operation is performed on a fiberboard article that gives it the character of another heading, the article is classifiable and the other heading and not in 44-11. Well, I wouldn't a grammatical reading of chapter note 4 suggests that it actually refers to the phrase may be worked. Try reading it that way. You see, chapter note 4 seems to say product of heading 44-10, etc. It may be worked to form the shapes provided along any of its edges, etc., form the shapes other than square rectangular or any other operation provided. It does not give them the character. It, the working does not give them the character. Why, doesn't that make a better construction sense than trying to tag it to either any other operation or form to shapes or those other phrases? Your Honor, that construction would leave out the clause submitted to any other operation. And we would read worked to form those shapes that are enumerated as well as submitted to any other operation to be the things that the pronoun it refers to
. There wouldn't be any particular reason for the it to refer to the verb worked and not to the verbs submitted. Well, if it refers to maybe work, it would incorporate all the other language that follows. If it were read to incorporate all the other ways that the other has to be followed. How is it worked? How is the product work? Product is worked by changing its shape or submitting it to any other operation, presumably physically. Operating on the product. That's right, Your Honor. And that construction would be consistent with House's position. It would also be consistent with the obvious function of the chapter note, which is to distinguish certain raw materials and intermediate products which are not described in other headings from those that are. If we just agree with the government's construction of note four, is it, do you have an alternate theory upon which we could rule in your favor? Yes, Your Honor. If the government's construction of chapter note four were correct, there are two theories in which we would prevail. The first is that there is an unenumerated operation, namely lamination, which does give this flooring the character of heading 4418. We described that in our brief that it couldn't be used for the finishing of a building that hadn't been laminated
. That's clearly not an operation listed in chapter note four. And so under their construction, the exclusive effect of chapter note four would still apply. The other theory, Your Honor, would be that even in the event that that were not true, the articles would be primate fascia classifiable under both 4411 and 4418. And the court should classify the products in 4418 under the rule of relative specificity under GRI 3a. What do we do make of E and 44.11, which the government sites in its free? In your Honor, in what particular part of 44.11? Well, it seems to be, it's similar to note four, but it talks about coded or covered or submitted to any other operation. I mean, its reading seems a little more consistent with the one that you'd like us to give to note four. Seems to me. Well, Your Honor, we think that E and 4411 supports us generally speaking in two ways. One is by replacing the word it with the term these operations, which in our view refers to all the operations that precede it. Another reason that it supports our reading is that there are operations enumerated in explanatory note 4411, which are not enumerated in the chapter note
. And under the government's reading, if everything that's not enumerated is within the scope of the proviso, we then have additional things enumerated in explanatory note 4411, which are not within the scope of the proviso, which we believe undermines the government reading of chapter note four. Another reason that our reading of chapter note four is correct, Your Honor, is that in addition to serving the obvious purpose of providing a line of demarcation between articles that are classifiable in other headings on the one hand or in or are upgraded materials on the other. And we note in the brief that the government's theory would be an irrational application of that rule in which you would be in the other heading of certain operations applied, but not when other operations applied. And there's no particular reason to believe that the drafters would have thought that some operations that that equally advance a product to the finished articles heading should have a different result than other operations. But also when we read chapter note four in conjunction with chapter note three, which specifies that articles classifiable in heading 4411 should be there, whether they are made of wood or one of the nonwood substitutes such as fiber board. That result would obtain every time under our reading of chapter note four and only some of the time under the government's reading, under the government's reading, you would only classify wood and nonwood products the same way under heading 4418. If the nonwood product got to 4418 as a result of an operation, not enumerated in chapter note four. If it got to, if it was took on the character of heading 4418 as a result of an operation that was enumerated in chapter note four, under the government's reading, that article would stay in 4411. And you would have an anomalous result such as you do actually in the context of this particular product, laminate flooring, the government is saying, tongue and groove flooring should be under 4411, whereas a finished solid wood, tongue and groove flooring, the government classifies under 4418. We respectfully submit that that result is completely inconsistent with the language of chapter note three. So 4418 refers to parquet panels. Is it your view is not simply that if you resemble a parquet floor tile, you're in 4418
. No, we have a much that that's an exemplar that's listed in the text of 4418, but the language of 4418, contract with the government is arguing simply uses the word including to list several exemplars. And in no way limits 4418 to the particular items listed as exemplars. And we would respectfully submit on the definition of 4418. It's well supported by the dictionary definitions and by the explanatory note to 40 explanatory note 44.18. The government really doesn't come up with a coherent contrary definition of 4418. They do argue that it's limited to the exemplars in the heading, but there's absolutely no support in the in the text of the heading for that. They also say it's limited to articles that are not classifiable elsewhere. And there's absolutely no support in the heading text for that proposition either. Mr. Charko, you're into your rebuttal. Why don't we will hear from the government now? Thank you, Your Honor
. Is this moving? Good morning. May it please the court. I'm actually going to start up by agreeing with some of Mr. Dr. Osset. And that is that note four is the central issue. The interpretation of note four is actually the central issue here. Of course, we believe our interpretation is correct. But even if you believe that note four is either ambiguous or that appellance interpretation has some merit, you shouldn't apply their interpretation because aruses the only one that doesn't wipe whole tariff provisions out of the statute. That was concedes that applying note four in the way they suggest would in fact wipe provisions out of the statute, but they don't see a problem with that because the provisions that would be wiped out are subheadings. Now, this is a problem because you really should interpret the statute so as not to nullify any of the language, whether in heading or subheadings. Chapter 44 as well as other provisions of the tariff statute are replete with specific provisions covering goods that fall within the dictionary definition of joinery and are used in buildings
. The matter in which these provisions of chapter 44 as well as other chapters have been laid out evinces and intent by the drafters to include within 4418 only such joinery items as are not expressly provided for such as assembled parquet panels and those that are not covered by other tariff provisions. While Mr. Jarko indicates that there is no support that 4418 was intended to be limited that way in the text of the heading, in the context there is a lot of support for that. Fels argues in its brief that our analysis improperly uses the terms of subheadings to construe the competing headings. That's not right. We refer to subheadings simply to show that there are tariff provisions that would be eviscerated if you were to accept thousands of interpretation of note 4. Let's say we are having a little trouble with this. Let's say we accept your grammatical interpretation of note 4. I would appreciate that. Why is lamination with paper included in the E and 44.11 and not in note 4? It's actually included in additional US note 1c also. It's included in a legal note
. An overlay with paper or plastic is specifically provided for products of heading 4411. So your interpretation of note 4, if a fiberboard article is that a fiberboard article retains its classification as fiberboard, even if it's subjected to one of the listed operations? Yes. It's still an article of fiberboard, but it's provided for in 4411. If I understood your question correctly, if it undergoes one of those specific operations or another operation, and that operation does not give it the character of an article of another heading, then yes, it remains in 4411. And that really has to be the way it is because especially in chapter 44, you do have provisions, headings that encompass materials, but you also have those same provisions encompassing articles made of those materials. Now some of those articles would fall into the very broad category of joinery. For example, in 4409, you have specific subheadings for flooring, for solid wood flooring that has undergone certain operations. But as Mr. Jarko pointed out, customs has in fact classified some solid wood flooring in 4418. And that's only flooring that's not subjected to the type of operation that's specifically provided for in 4411. And the rulings that they cite in their brief have to do with wood flooring that has undergone polyurethane, which is not one of the one of the surface covering operations provided for for products of 4409. So it's not true, and Mr
. Jarko mispoke a little bit, I believe what he said, that we seem to always put tongue and groove solid wood flooring in 4418. That depends upon the operations, which they have flooring has undergone in order to create that product. Yes, Mr. Rubik. Yes. Only lawyers could enjoy this discussion. But fortunately we're all lawyers. Can I get to do it again in the next case? Yes, I know. We're all lawyers trying to understand it. Let me step back just a little bit with you. Sure. Mr
. Jarko, the product that they're making is I assume there must be something that Congress did not have in mind at the time they wrote this statute. Because as I look at it and listen to your arguments, it's clear that neither of you can say, finger, that's exactly right. It's an interpretive process that we have to go to put it another way. I don't find anything in 4411, 4418 or any of these other provisions that zero's right in on his particular product. Now, that is to say, other, other, other seems to me to be a somewhat ambiguous category. Help me understand one thing about this. Maybe irrelevant, but maybe it's not because I think it underlies the argument. As I read 4411, almost everything in 4411 that's called particle board or fiber board, I should say fiber board of wood, et cetera, et cetera. It's all three under the input with the exception of other, other, other, which happens to turn out to be 6%. 4418, Parkay, panels turns out also to be free. So ultimately you all are fighting over whether, over what the tariff duty is, isn't that right? That's my job. That's your job. Well, no, actually that's not my job. You're representing the treasury. They need everything they need. No, I know I'm being recorded, so I have to revise my response. No, no, I'm not holding it. Like you, our job is to reach the correct result in classifying merchandise. Okay. And certainly, Fals wouldn't be here if the duty rates for 4411 and the duty rates for 4418 were the same. Nor would you. Nor would I, because we are dependent and I have to defend my client. Okay. Getting back there, actually you're right, there is no provision that specifically covers laminated boards of this type of fiber board
. Well, no, actually that's not my job. You're representing the treasury. They need everything they need. No, I know I'm being recorded, so I have to revise my response. No, no, I'm not holding it. Like you, our job is to reach the correct result in classifying merchandise. Okay. And certainly, Fals wouldn't be here if the duty rates for 4411 and the duty rates for 4418 were the same. Nor would you. Nor would I, because we are dependent and I have to defend my client. Okay. Getting back there, actually you're right, there is no provision that specifically covers laminated boards of this type of fiber board. 4411, 29 actually encompasses laminated boards for a different density of fiber board. Right. So 4411 does cover this is a poorly drafted piece of document for deciding his case wrong. I respectfully disagree. Because. Because the fact that there was a laminated boards provision put into the HDS US in for different density certainly does not indicate that this density of fiber board has no home in 4411. The other provision clearly encompasses other fiber board of that density and it certainly covers. Processed fiber board because it specifically allows for specific processes in note four. Yes, but on the other hand, it doesn't there's nothing in 4411 that specifically deals with the density of product that he produces which meets the other descriptive factors which kicks us over to 4418. Now, I would not have thought of his product as being part of builders, joinery and carpenter of wood. Except for all of this chapter note and explanatory note stuff that kicks it around and says, but wait a minute if it's really been manufactured to do something else, you got to move somewhere else. So it seems to me you're caught on a bit of a dilemma here because you can't quite fit it into 4411 unless we go on the other other
. 4411, 29 actually encompasses laminated boards for a different density of fiber board. Right. So 4411 does cover this is a poorly drafted piece of document for deciding his case wrong. I respectfully disagree. Because. Because the fact that there was a laminated boards provision put into the HDS US in for different density certainly does not indicate that this density of fiber board has no home in 4411. The other provision clearly encompasses other fiber board of that density and it certainly covers. Processed fiber board because it specifically allows for specific processes in note four. Yes, but on the other hand, it doesn't there's nothing in 4411 that specifically deals with the density of product that he produces which meets the other descriptive factors which kicks us over to 4418. Now, I would not have thought of his product as being part of builders, joinery and carpenter of wood. Except for all of this chapter note and explanatory note stuff that kicks it around and says, but wait a minute if it's really been manufactured to do something else, you got to move somewhere else. So it seems to me you're caught on a bit of a dilemma here because you can't quite fit it into 4411 unless we go on the other other. Whereas the builders joinery doesn't really fit so well either, but maybe it fits a little better. It doesn't fit better and in the bow and decision, in the kind of way, placed very similar product into the materials per what we're referring to as the materials provision 44. I believe in that case it was 4412, which I don't have copy here. Similar provision 4418 had been in the running, this court recognized that originally in a 4418 was an issue and found nonetheless that that product had not been done any processing that would take it out of the, in that case the plywood provision. So this product is very much covered by the language of 4411. It's fiberboard, it's with the right density, it is bonded with resins, it is surface covered as allowed by additional US note 1C. It is not undergone any operation, including lamination, which is provided for an additional US note 1C. That is, that would remove it from 4411. And in order to put it into 4418, you would actually have to determine that they're right in interpreting the word it. And they're not. It's grammatically incorrect, it's just inappropriate in context. And trying to figure out what tongue-rish is about, and that's ultimately what we need to get to, isn't it? Help me understand cycling back to the tariff schedule as such
. Whereas the builders joinery doesn't really fit so well either, but maybe it fits a little better. It doesn't fit better and in the bow and decision, in the kind of way, placed very similar product into the materials per what we're referring to as the materials provision 44. I believe in that case it was 4412, which I don't have copy here. Similar provision 4418 had been in the running, this court recognized that originally in a 4418 was an issue and found nonetheless that that product had not been done any processing that would take it out of the, in that case the plywood provision. So this product is very much covered by the language of 4411. It's fiberboard, it's with the right density, it is bonded with resins, it is surface covered as allowed by additional US note 1C. It is not undergone any operation, including lamination, which is provided for an additional US note 1C. That is, that would remove it from 4411. And in order to put it into 4418, you would actually have to determine that they're right in interpreting the word it. And they're not. It's grammatically incorrect, it's just inappropriate in context. And trying to figure out what tongue-rish is about, and that's ultimately what we need to get to, isn't it? Help me understand cycling back to the tariff schedule as such. Help me understand that why would all those other fiberboard products be free, but other other would be 6%. What is the underlying policy that tongue-rish is trying to reach by working the schedule that way? Well now you get a preview of the next case, but building boards were provided for at 6% under the TSUF, the predecessor statute. And this type of product would have most likely been classified as a building board under the TSUF. And in fact, it was, the 441129 was carried over pretty much intact from the building boards provision of the TSUF. I don't know why it wasn't, I have no idea why it wasn't carried over specifically with that language into 441119, but it doesn't really need to be since there is another provision that would encompass anything that would have been classifiable at 6%. I'm going to be building boards provision back under the TSUF. Oh, I have some time remaining. I'm assuming perhaps that you agree with the Court of International Trade and you believe that a GRI-3A, Relatives Specificity Analysis is an order here. Oh, before I even get to that, 250. I just wanted to note that Judge Poe put together a definition of Builders' Joinery that, which is not a bad way of putting it to be. And that is not a U.S
. Help me understand that why would all those other fiberboard products be free, but other other would be 6%. What is the underlying policy that tongue-rish is trying to reach by working the schedule that way? Well now you get a preview of the next case, but building boards were provided for at 6% under the TSUF, the predecessor statute. And this type of product would have most likely been classified as a building board under the TSUF. And in fact, it was, the 441129 was carried over pretty much intact from the building boards provision of the TSUF. I don't know why it wasn't, I have no idea why it wasn't carried over specifically with that language into 441119, but it doesn't really need to be since there is another provision that would encompass anything that would have been classifiable at 6%. I'm going to be building boards provision back under the TSUF. Oh, I have some time remaining. I'm assuming perhaps that you agree with the Court of International Trade and you believe that a GRI-3A, Relatives Specificity Analysis is an order here. Oh, before I even get to that, 250. I just wanted to note that Judge Poe put together a definition of Builders' Joinery that, which is not a bad way of putting it to be. And that is not a U.S. term and it only appears in the U.S., sorry, it's not a U.S. term, but he had to find it anyway. But he included things in the definitions, excuse me, he excluded parts of the dictionary definitions he looked at. For example, the dictionary definitions indicated that joinery can be furniture. Furniture is specifically provided in chapter 94. He didn't put that into his final definition, but it's joinery. So there are provisions in other chapters that would also be nullified if the real scope of joinery was all shoved into heading 4418. Note 3A, as the Court of International Trade found, the five-report provision is much narrower than heading 4018, which encompasses not just Builders' Joinery, but also Carpentry of Wood. It also presumably includes, if you get to 3A, structural goods as well as non-structural goods, because stairs has included as an example in the explanatory notes, and stairs are structural products
. term and it only appears in the U.S., sorry, it's not a U.S. term, but he had to find it anyway. But he included things in the definitions, excuse me, he excluded parts of the dictionary definitions he looked at. For example, the dictionary definitions indicated that joinery can be furniture. Furniture is specifically provided in chapter 94. He didn't put that into his final definition, but it's joinery. So there are provisions in other chapters that would also be nullified if the real scope of joinery was all shoved into heading 4418. Note 3A, as the Court of International Trade found, the five-report provision is much narrower than heading 4018, which encompasses not just Builders' Joinery, but also Carpentry of Wood. It also presumably includes, if you get to 3A, structural goods as well as non-structural goods, because stairs has included as an example in the explanatory notes, and stairs are structural products. Joinery is a very broad category, it doesn't describe a particular product. And as Mr. Jarko indicated, and as they stated in their brief, note 3 broadens that category even further by allowing six different types of wood products into that provision. So my five-report is five-report. It's a single product, and products will remain in 4411, as long as they have an undergone processing beyond what's specifically allowed. But either by the terms of the heading or by the legal notes to that heading. When you give heat to all the statutory language and the relevant legal notes, you should find that products such as Falsafloring were never meant to be encompassed by the claimed heading by 4418. That's really a sense of a residual provision for products that don't fall in earlier provisions, or that are not specifically named like parquet panels. So you should find that only a GRI-1 analysis required. If you disagree however you should find that as did the CIT that we prevail under a GRI-3-A analysis. Thank you. Thank you, Ms
. Joinery is a very broad category, it doesn't describe a particular product. And as Mr. Jarko indicated, and as they stated in their brief, note 3 broadens that category even further by allowing six different types of wood products into that provision. So my five-report is five-report. It's a single product, and products will remain in 4411, as long as they have an undergone processing beyond what's specifically allowed. But either by the terms of the heading or by the legal notes to that heading. When you give heat to all the statutory language and the relevant legal notes, you should find that products such as Falsafloring were never meant to be encompassed by the claimed heading by 4418. That's really a sense of a residual provision for products that don't fall in earlier provisions, or that are not specifically named like parquet panels. So you should find that only a GRI-1 analysis required. If you disagree however you should find that as did the CIT that we prevail under a GRI-3-A analysis. Thank you. Thank you, Ms. Rubin. We'll see you in a minute. Mr. Jarko? Thank you, Your Honor. We'll give you five minutes. Thank you. I'd like to start if I may with the government's analysis that starts with subheadings in order to read them into the meaning of headings. The court's analysis in Orlando food and other cases which have strictly set up an analytical framework to analyze the language of headings first before going on to subheadings is very significant here. And it's not a matter of simply asking the court to put its blinders on. You can actually reach different results depending on your mode of analysis. In this case, as we explain, under the chapter notes and the headings, you would end up in 44-18. What then, if you then went back to some of these subheadings that the government talks about, what then would they mean? What they would mean would be, what they would cover would be products that are not within the scope of heading 44-18
. Rubin. We'll see you in a minute. Mr. Jarko? Thank you, Your Honor. We'll give you five minutes. Thank you. I'd like to start if I may with the government's analysis that starts with subheadings in order to read them into the meaning of headings. The court's analysis in Orlando food and other cases which have strictly set up an analytical framework to analyze the language of headings first before going on to subheadings is very significant here. And it's not a matter of simply asking the court to put its blinders on. You can actually reach different results depending on your mode of analysis. In this case, as we explain, under the chapter notes and the headings, you would end up in 44-18. What then, if you then went back to some of these subheadings that the government talks about, what then would they mean? What they would mean would be, what they would cover would be products that are not within the scope of heading 44-18. An example would be these fiberboard subheadings that talk about surface covering or lamination. Lamination is a process of sticking two things together. Surface covering is a process of putting something on top of another. Not all surface coverings or laminations render a product usable for the interior finish of a building as it would have to be to be classifiable under heading 44-18. For each of the examples that the government would use through its subheadings to try to undermine spouses analysis, in our brief, we always come up with an answer to those examples that is whatever they describe, they describe things that are not within the scope of heading 44-18. Moving on to the relative specificity analysis, which is discussed thoroughly in the briefs, what the government would do is to discuss the specificity analysis, which is discussed thoroughly in the briefs. Continues to ignore and using phrases like narrower or broader to describe these two headings. Is the test from Orlando Food that the court has established and is well established here, which is the heading that is hard to satisfy is the one when the court is breaking the tie between two headings is the one that applies. And the government really has never responded to our two major arguments on that point, the first being that it is mandatory under 44-18 to have processing of a product, whereas under 44-11 it's only permissive, not mandatory. You could have processed products, you could have unprocessed products under 44-11, not so under 44-18. Under direct analogy to the Orlando Food Case itself in which the court held that a process tomato product was that that was a more specific heading than an unprocessed tomato product, the same rationale would apply here. In addition, 44-18 is a heading which is limited by use, it must be used by builders in the construction of a building, whereas the fiber board heading is not limited by use
. An example would be these fiberboard subheadings that talk about surface covering or lamination. Lamination is a process of sticking two things together. Surface covering is a process of putting something on top of another. Not all surface coverings or laminations render a product usable for the interior finish of a building as it would have to be to be classifiable under heading 44-18. For each of the examples that the government would use through its subheadings to try to undermine spouses analysis, in our brief, we always come up with an answer to those examples that is whatever they describe, they describe things that are not within the scope of heading 44-18. Moving on to the relative specificity analysis, which is discussed thoroughly in the briefs, what the government would do is to discuss the specificity analysis, which is discussed thoroughly in the briefs. Continues to ignore and using phrases like narrower or broader to describe these two headings. Is the test from Orlando Food that the court has established and is well established here, which is the heading that is hard to satisfy is the one when the court is breaking the tie between two headings is the one that applies. And the government really has never responded to our two major arguments on that point, the first being that it is mandatory under 44-18 to have processing of a product, whereas under 44-11 it's only permissive, not mandatory. You could have processed products, you could have unprocessed products under 44-11, not so under 44-18. Under direct analogy to the Orlando Food Case itself in which the court held that a process tomato product was that that was a more specific heading than an unprocessed tomato product, the same rationale would apply here. In addition, 44-18 is a heading which is limited by use, it must be used by builders in the construction of a building, whereas the fiber board heading is not limited by use. That is another means of, it could be used in the construction of a building, it could be an automobile dashboards, it could be in furniture and a lot of other things under the government's construction of chapter note four. And so we would respectfully submit that because of the heading 44-18 is narrowed by use, that is another reason that it is harder to satisfy and therefore more specific under relative specificity analysis. Thank you. Thank you, Aaron. Thank you. The final case in which we will hear oral argument this morning is numbered two.
R2-008-1605, Fouse Group versus the United States. Mr. Yarko or Jarko? Jarko, Rana. A hard J, right? Right. All right, you have, just want to check, you've reserved six minutes for a bottle. Is that correct? That's correct. Okay. You can begin whenever you're ready. May it please the court. The question presented in this case is the proper tariff classification for Fouse Group, Inc.'s Tungin Group, Laminate flooring. The crux of the party's dispute is whether Chapter 44 note 4 excludes the imported articles from the fiberboard heading, 44-11, because the articles have been upgraded to the point that they're classifiable under another heading as Builders' joinery under heading 4418. The government concedes the chapter note for excludes some products from heading 44-11 by virtue of their inclusion in another heading. The question is the extent of that exclusionary note, with Fouse maintaining that any operation that gives an article to the character of another heading excludes it from 44-11, and the government maintaining that only those operations not enumerated in the chapter note have that exclusionary effect. What's causing that chapter note 4, I suppose? That's correct, Your Honor. What do you think it, what is the referent for it as you understand it? Your Honor, it, we believe, refers to any operation that is any of the enumerated operations or any other operation such that the effect of the chapter note is to say that if an operation is performed on a fiberboard article that gives it the character of another heading, the article is classifiable and the other heading and not in 44-11. Well, I wouldn't a grammatical reading of chapter note 4 suggests that it actually refers to the phrase may be worked. Try reading it that way. You see, chapter note 4 seems to say product of heading 44-10, etc. It may be worked to form the shapes provided along any of its edges, etc., form the shapes other than square rectangular or any other operation provided. It does not give them the character. It, the working does not give them the character. Why, doesn't that make a better construction sense than trying to tag it to either any other operation or form to shapes or those other phrases? Your Honor, that construction would leave out the clause submitted to any other operation. And we would read worked to form those shapes that are enumerated as well as submitted to any other operation to be the things that the pronoun it refers to. There wouldn't be any particular reason for the it to refer to the verb worked and not to the verbs submitted. Well, if it refers to maybe work, it would incorporate all the other language that follows. If it were read to incorporate all the other ways that the other has to be followed. How is it worked? How is the product work? Product is worked by changing its shape or submitting it to any other operation, presumably physically. Operating on the product. That's right, Your Honor. And that construction would be consistent with House's position. It would also be consistent with the obvious function of the chapter note, which is to distinguish certain raw materials and intermediate products which are not described in other headings from those that are. If we just agree with the government's construction of note four, is it, do you have an alternate theory upon which we could rule in your favor? Yes, Your Honor. If the government's construction of chapter note four were correct, there are two theories in which we would prevail. The first is that there is an unenumerated operation, namely lamination, which does give this flooring the character of heading 4418. We described that in our brief that it couldn't be used for the finishing of a building that hadn't been laminated. That's clearly not an operation listed in chapter note four. And so under their construction, the exclusive effect of chapter note four would still apply. The other theory, Your Honor, would be that even in the event that that were not true, the articles would be primate fascia classifiable under both 4411 and 4418. And the court should classify the products in 4418 under the rule of relative specificity under GRI 3a. What do we do make of E and 44.11, which the government sites in its free? In your Honor, in what particular part of 44.11? Well, it seems to be, it's similar to note four, but it talks about coded or covered or submitted to any other operation. I mean, its reading seems a little more consistent with the one that you'd like us to give to note four. Seems to me. Well, Your Honor, we think that E and 4411 supports us generally speaking in two ways. One is by replacing the word it with the term these operations, which in our view refers to all the operations that precede it. Another reason that it supports our reading is that there are operations enumerated in explanatory note 4411, which are not enumerated in the chapter note. And under the government's reading, if everything that's not enumerated is within the scope of the proviso, we then have additional things enumerated in explanatory note 4411, which are not within the scope of the proviso, which we believe undermines the government reading of chapter note four. Another reason that our reading of chapter note four is correct, Your Honor, is that in addition to serving the obvious purpose of providing a line of demarcation between articles that are classifiable in other headings on the one hand or in or are upgraded materials on the other. And we note in the brief that the government's theory would be an irrational application of that rule in which you would be in the other heading of certain operations applied, but not when other operations applied. And there's no particular reason to believe that the drafters would have thought that some operations that that equally advance a product to the finished articles heading should have a different result than other operations. But also when we read chapter note four in conjunction with chapter note three, which specifies that articles classifiable in heading 4411 should be there, whether they are made of wood or one of the nonwood substitutes such as fiber board. That result would obtain every time under our reading of chapter note four and only some of the time under the government's reading, under the government's reading, you would only classify wood and nonwood products the same way under heading 4418. If the nonwood product got to 4418 as a result of an operation, not enumerated in chapter note four. If it got to, if it was took on the character of heading 4418 as a result of an operation that was enumerated in chapter note four, under the government's reading, that article would stay in 4411. And you would have an anomalous result such as you do actually in the context of this particular product, laminate flooring, the government is saying, tongue and groove flooring should be under 4411, whereas a finished solid wood, tongue and groove flooring, the government classifies under 4418. We respectfully submit that that result is completely inconsistent with the language of chapter note three. So 4418 refers to parquet panels. Is it your view is not simply that if you resemble a parquet floor tile, you're in 4418. No, we have a much that that's an exemplar that's listed in the text of 4418, but the language of 4418, contract with the government is arguing simply uses the word including to list several exemplars. And in no way limits 4418 to the particular items listed as exemplars. And we would respectfully submit on the definition of 4418. It's well supported by the dictionary definitions and by the explanatory note to 40 explanatory note 44.18. The government really doesn't come up with a coherent contrary definition of 4418. They do argue that it's limited to the exemplars in the heading, but there's absolutely no support in the in the text of the heading for that. They also say it's limited to articles that are not classifiable elsewhere. And there's absolutely no support in the heading text for that proposition either. Mr. Charko, you're into your rebuttal. Why don't we will hear from the government now? Thank you, Your Honor. Is this moving? Good morning. May it please the court. I'm actually going to start up by agreeing with some of Mr. Dr. Osset. And that is that note four is the central issue. The interpretation of note four is actually the central issue here. Of course, we believe our interpretation is correct. But even if you believe that note four is either ambiguous or that appellance interpretation has some merit, you shouldn't apply their interpretation because aruses the only one that doesn't wipe whole tariff provisions out of the statute. That was concedes that applying note four in the way they suggest would in fact wipe provisions out of the statute, but they don't see a problem with that because the provisions that would be wiped out are subheadings. Now, this is a problem because you really should interpret the statute so as not to nullify any of the language, whether in heading or subheadings. Chapter 44 as well as other provisions of the tariff statute are replete with specific provisions covering goods that fall within the dictionary definition of joinery and are used in buildings. The matter in which these provisions of chapter 44 as well as other chapters have been laid out evinces and intent by the drafters to include within 4418 only such joinery items as are not expressly provided for such as assembled parquet panels and those that are not covered by other tariff provisions. While Mr. Jarko indicates that there is no support that 4418 was intended to be limited that way in the text of the heading, in the context there is a lot of support for that. Fels argues in its brief that our analysis improperly uses the terms of subheadings to construe the competing headings. That's not right. We refer to subheadings simply to show that there are tariff provisions that would be eviscerated if you were to accept thousands of interpretation of note 4. Let's say we are having a little trouble with this. Let's say we accept your grammatical interpretation of note 4. I would appreciate that. Why is lamination with paper included in the E and 44.11 and not in note 4? It's actually included in additional US note 1c also. It's included in a legal note. An overlay with paper or plastic is specifically provided for products of heading 4411. So your interpretation of note 4, if a fiberboard article is that a fiberboard article retains its classification as fiberboard, even if it's subjected to one of the listed operations? Yes. It's still an article of fiberboard, but it's provided for in 4411. If I understood your question correctly, if it undergoes one of those specific operations or another operation, and that operation does not give it the character of an article of another heading, then yes, it remains in 4411. And that really has to be the way it is because especially in chapter 44, you do have provisions, headings that encompass materials, but you also have those same provisions encompassing articles made of those materials. Now some of those articles would fall into the very broad category of joinery. For example, in 4409, you have specific subheadings for flooring, for solid wood flooring that has undergone certain operations. But as Mr. Jarko pointed out, customs has in fact classified some solid wood flooring in 4418. And that's only flooring that's not subjected to the type of operation that's specifically provided for in 4411. And the rulings that they cite in their brief have to do with wood flooring that has undergone polyurethane, which is not one of the one of the surface covering operations provided for for products of 4409. So it's not true, and Mr. Jarko mispoke a little bit, I believe what he said, that we seem to always put tongue and groove solid wood flooring in 4418. That depends upon the operations, which they have flooring has undergone in order to create that product. Yes, Mr. Rubik. Yes. Only lawyers could enjoy this discussion. But fortunately we're all lawyers. Can I get to do it again in the next case? Yes, I know. We're all lawyers trying to understand it. Let me step back just a little bit with you. Sure. Mr. Jarko, the product that they're making is I assume there must be something that Congress did not have in mind at the time they wrote this statute. Because as I look at it and listen to your arguments, it's clear that neither of you can say, finger, that's exactly right. It's an interpretive process that we have to go to put it another way. I don't find anything in 4411, 4418 or any of these other provisions that zero's right in on his particular product. Now, that is to say, other, other, other seems to me to be a somewhat ambiguous category. Help me understand one thing about this. Maybe irrelevant, but maybe it's not because I think it underlies the argument. As I read 4411, almost everything in 4411 that's called particle board or fiber board, I should say fiber board of wood, et cetera, et cetera. It's all three under the input with the exception of other, other, other, which happens to turn out to be 6%. 4418, Parkay, panels turns out also to be free. So ultimately you all are fighting over whether, over what the tariff duty is, isn't that right? That's my job. That's your job. Well, no, actually that's not my job. You're representing the treasury. They need everything they need. No, I know I'm being recorded, so I have to revise my response. No, no, I'm not holding it. Like you, our job is to reach the correct result in classifying merchandise. Okay. And certainly, Fals wouldn't be here if the duty rates for 4411 and the duty rates for 4418 were the same. Nor would you. Nor would I, because we are dependent and I have to defend my client. Okay. Getting back there, actually you're right, there is no provision that specifically covers laminated boards of this type of fiber board. 4411, 29 actually encompasses laminated boards for a different density of fiber board. Right. So 4411 does cover this is a poorly drafted piece of document for deciding his case wrong. I respectfully disagree. Because. Because the fact that there was a laminated boards provision put into the HDS US in for different density certainly does not indicate that this density of fiber board has no home in 4411. The other provision clearly encompasses other fiber board of that density and it certainly covers. Processed fiber board because it specifically allows for specific processes in note four. Yes, but on the other hand, it doesn't there's nothing in 4411 that specifically deals with the density of product that he produces which meets the other descriptive factors which kicks us over to 4418. Now, I would not have thought of his product as being part of builders, joinery and carpenter of wood. Except for all of this chapter note and explanatory note stuff that kicks it around and says, but wait a minute if it's really been manufactured to do something else, you got to move somewhere else. So it seems to me you're caught on a bit of a dilemma here because you can't quite fit it into 4411 unless we go on the other other. Whereas the builders joinery doesn't really fit so well either, but maybe it fits a little better. It doesn't fit better and in the bow and decision, in the kind of way, placed very similar product into the materials per what we're referring to as the materials provision 44. I believe in that case it was 4412, which I don't have copy here. Similar provision 4418 had been in the running, this court recognized that originally in a 4418 was an issue and found nonetheless that that product had not been done any processing that would take it out of the, in that case the plywood provision. So this product is very much covered by the language of 4411. It's fiberboard, it's with the right density, it is bonded with resins, it is surface covered as allowed by additional US note 1C. It is not undergone any operation, including lamination, which is provided for an additional US note 1C. That is, that would remove it from 4411. And in order to put it into 4418, you would actually have to determine that they're right in interpreting the word it. And they're not. It's grammatically incorrect, it's just inappropriate in context. And trying to figure out what tongue-rish is about, and that's ultimately what we need to get to, isn't it? Help me understand cycling back to the tariff schedule as such. Help me understand that why would all those other fiberboard products be free, but other other would be 6%. What is the underlying policy that tongue-rish is trying to reach by working the schedule that way? Well now you get a preview of the next case, but building boards were provided for at 6% under the TSUF, the predecessor statute. And this type of product would have most likely been classified as a building board under the TSUF. And in fact, it was, the 441129 was carried over pretty much intact from the building boards provision of the TSUF. I don't know why it wasn't, I have no idea why it wasn't carried over specifically with that language into 441119, but it doesn't really need to be since there is another provision that would encompass anything that would have been classifiable at 6%. I'm going to be building boards provision back under the TSUF. Oh, I have some time remaining. I'm assuming perhaps that you agree with the Court of International Trade and you believe that a GRI-3A, Relatives Specificity Analysis is an order here. Oh, before I even get to that, 250. I just wanted to note that Judge Poe put together a definition of Builders' Joinery that, which is not a bad way of putting it to be. And that is not a U.S. term and it only appears in the U.S., sorry, it's not a U.S. term, but he had to find it anyway. But he included things in the definitions, excuse me, he excluded parts of the dictionary definitions he looked at. For example, the dictionary definitions indicated that joinery can be furniture. Furniture is specifically provided in chapter 94. He didn't put that into his final definition, but it's joinery. So there are provisions in other chapters that would also be nullified if the real scope of joinery was all shoved into heading 4418. Note 3A, as the Court of International Trade found, the five-report provision is much narrower than heading 4018, which encompasses not just Builders' Joinery, but also Carpentry of Wood. It also presumably includes, if you get to 3A, structural goods as well as non-structural goods, because stairs has included as an example in the explanatory notes, and stairs are structural products. Joinery is a very broad category, it doesn't describe a particular product. And as Mr. Jarko indicated, and as they stated in their brief, note 3 broadens that category even further by allowing six different types of wood products into that provision. So my five-report is five-report. It's a single product, and products will remain in 4411, as long as they have an undergone processing beyond what's specifically allowed. But either by the terms of the heading or by the legal notes to that heading. When you give heat to all the statutory language and the relevant legal notes, you should find that products such as Falsafloring were never meant to be encompassed by the claimed heading by 4418. That's really a sense of a residual provision for products that don't fall in earlier provisions, or that are not specifically named like parquet panels. So you should find that only a GRI-1 analysis required. If you disagree however you should find that as did the CIT that we prevail under a GRI-3-A analysis. Thank you. Thank you, Ms. Rubin. We'll see you in a minute. Mr. Jarko? Thank you, Your Honor. We'll give you five minutes. Thank you. I'd like to start if I may with the government's analysis that starts with subheadings in order to read them into the meaning of headings. The court's analysis in Orlando food and other cases which have strictly set up an analytical framework to analyze the language of headings first before going on to subheadings is very significant here. And it's not a matter of simply asking the court to put its blinders on. You can actually reach different results depending on your mode of analysis. In this case, as we explain, under the chapter notes and the headings, you would end up in 44-18. What then, if you then went back to some of these subheadings that the government talks about, what then would they mean? What they would mean would be, what they would cover would be products that are not within the scope of heading 44-18. An example would be these fiberboard subheadings that talk about surface covering or lamination. Lamination is a process of sticking two things together. Surface covering is a process of putting something on top of another. Not all surface coverings or laminations render a product usable for the interior finish of a building as it would have to be to be classifiable under heading 44-18. For each of the examples that the government would use through its subheadings to try to undermine spouses analysis, in our brief, we always come up with an answer to those examples that is whatever they describe, they describe things that are not within the scope of heading 44-18. Moving on to the relative specificity analysis, which is discussed thoroughly in the briefs, what the government would do is to discuss the specificity analysis, which is discussed thoroughly in the briefs. Continues to ignore and using phrases like narrower or broader to describe these two headings. Is the test from Orlando Food that the court has established and is well established here, which is the heading that is hard to satisfy is the one when the court is breaking the tie between two headings is the one that applies. And the government really has never responded to our two major arguments on that point, the first being that it is mandatory under 44-18 to have processing of a product, whereas under 44-11 it's only permissive, not mandatory. You could have processed products, you could have unprocessed products under 44-11, not so under 44-18. Under direct analogy to the Orlando Food Case itself in which the court held that a process tomato product was that that was a more specific heading than an unprocessed tomato product, the same rationale would apply here. In addition, 44-18 is a heading which is limited by use, it must be used by builders in the construction of a building, whereas the fiber board heading is not limited by use. That is another means of, it could be used in the construction of a building, it could be an automobile dashboards, it could be in furniture and a lot of other things under the government's construction of chapter note four. And so we would respectfully submit that because of the heading 44-18 is narrowed by use, that is another reason that it is harder to satisfy and therefore more specific under relative specificity analysis. Thank you. Thank you, Aaron. Thank you. The final case in which we will hear oral argument this morning is numbered two