one six zero four white texas versus the united states please the court my name is curtis in else and i represent the opponents in this action we tax too many tamils this case presents a single issue for the court is a subject merchandise correctly characterized as  tougher because it has an additional gradient that what but the government claims is representative of the same same basic material installed the same way we would submit that our product is even which as we all know includes all forms of that article however the term top board is not defined by the tariff it's not the final explanatory notes nor the legislative history precedent in this circuit requires utilizing the common meaning of the term unless there is a different commercial me as a scored higher than timber products or who argues that a tariff term should not be given its common meaning must prove that there is a different commercial meaning in existence which is definite uniform in general throughout the trade there was no evidence that a commercial meeting cis in this case therefore the truck court had to employ the common meaning but it didn't do so here in a committed reversible  tiriel used for interior finishes with a durable glossy finish simulated natural building material usually tile and subject merchandise fits this definition and he had considerable experience as an as an import specialist but he he had no he had no experience in in the trade so to speak he was not at the time the term was adopted he which is used for a different product which is a cement or that it shows up on the parties uncontested facts so there was another term but i'm sorry there was another product that was different from and when pressed to trial mr gretl could not describe the term tile board with any degree of particular he confirmed that in fact even though he denied it at first that product couldn't be laminated or the lamina and i asked him if it is a sheep it would be laminated yes and he answered so if so if then that was laminated it could be classified as top word is that correct i'm sorry that was my language and he answered it could be confused with this term when we talk about the meaning you're really talking about a common curricle meaning or you know you're on our own talking about a common meaning as it's accepted in common parlance common meaning is as it says it is it's common everyone knows about it whether you're in the trade or not it's common in this day and that's something called commercial as ignatius which which which is a very different kind of thing where everybody has  submit in the five definitions that were before the truck were and those were found in regular dictionaries as well as scientific fiction areas and then when it comes down to the court based decision on tried to try to make two distinction between the subject merchandise and what they can what the court consider board and the first distinction  coating now that is a wet finish now the process of applying that to the substrate fiber which is different than what the government contends is tile board yet  there is there's no basis to distinguish the subject merchandise based on a process it's the characteristics that are important and it's these characteristics that that include this subject merchandise in own witness and the testimony that the that the court used to make this distinction in fact stated that the the what he what he consider tile board could have a  there is no place where the merchandise you hear here is described as a multi use product except three wines in the transcript by their own witness who could only come up with except that problem is there they're guaranteed their warranty on this merchant nice says don't use anything other than a damp mop to clean it with and it's all in only some of their products or warranty against moisture there is also only one brochure that they might be able to point to that indicates anything about using this merchandise on walls and there was no testimony that the merchandise showed in this brochure was actually the merchandise issue especially because  collection that this brochure depicts was introduced after the entries in issue so that the first five minutes of what mr canal said and all the factual statements he made share is discounted they're saying that of that's in the record commercially there's a distinct and in how they're manufactured they're distinct in a whole host of ways and the curious thing about this trial was that the appellant's presented not a shred of testimony or other evidence regarding the decisive issue of what is tile board in any way that would hurt that would help them but the other curious fact is they actually presented to mrs who described as tile board because they they had they knew it from personal experience exactly the product that we would consider a green is tile board and i have here some samples that were sent down from the c i today and these smaller sample from the square sample in this smaller  fabricating a definition partly on the five dictionary definitions found by judge hogan partly on wishful thinking and in fact in its reply brief the pellets actually read the word tile board right out of that provision by searching that quote in this case congress has limited tile board subheading forty four eleven one nine hundred thirty two products that are fiber board of certain density that were surface covered that have their edges continuously worked and that are dedicated for use in the construction of buildings you know that may describe tile work but you know it also describes everything else in forty four eleven nineteen and the parties don't dispute that that's where this merchandise belong with respect to appellants criticism of national import specialist paul guerrero as not knowing anything the man has over thirty five years of experience dealing specifically with wood products the fact that he wasn't aware of a non wood product that might kill under the name tile border is of absolutely no relevance and in fact there was no test for that we agreed that that was sort of a fugitive use of the term tile where we put that right in the pretrial order so there was no reason he wasn't asked about it so the fact that he didn't know about a non wood products that may be called tile board is totally irrelevant but he did have lots of experience not only with  variety of wood product that comes through through the borders of this country because he is mr wood for all intents and purposes he is the national import specialist he has been for many many years he was a national import specialist for w products under the predecessor statues can't lead a national import specialist in that capacity and he described in the trial what he does he does a lot of research visits companies he talks to professionals he goes to trade shows he does all sorts of stuff to keep himself apprised of what's in the market and he was involved when the tile board provision was adopted into the h t s u s so to say that he's it's just one man's opinion based on nothing is is just ridiculous and the then fact that he had no experience buying selling or trading these products i think that's what mr canal said is not a reason to discount his testimony even if he had ever been asked whether he's ever bought sold or traded tile or i don't know whether he has or not lots of people use it in their bathrooms both  cases and customs law that indicate that the presumption is that the commercial meaning and the common meaning are exactly the same and if you if someone of the parties attempts to provide different meaning that's unique to a specific uses common commercial meaning in common meaning interchangeably that is absolutely not true in customs law commercial designation is one thing commercial meaning is is on is the same as common meaning unless a commercial designation is proven commercial doesn't nation is a commercial meaning but it is not the commercial meaning when common meaning is the same that makes the presumed to be the same set and this case they are the same that makes sense of yours to make the different industries that would use the term tile board differently and here in the court should only look to a specific industry where it's unique to that industry here the term tile board a known commercial product and you don't have to be in the tile board industry to know what that product is you can go into lowe's or home depot and go and find out where the big sign that says tile board is and you know  sorry for that for the record the samples that i've got in my hand which is a small grey sample and a flower example with four squares and the flooring products would be and the that we detect never demonstrated what their product was in this case but this mannington put on a witness that was able to identify this product and we don't have any problem stating that this which i've pointed out and in our brief and which plaintiffs never addressed and that compound that again in their reply brief we inadvertently so agreed to a statement said there is a liquid coating on the product an issue there isn't there never was it's a preexisting sheen that's been bonded together and we have in our brief the testimony by mr bradway counts witness to indicate that board is much thinner th the product in issue if it doesn't it varies minimally around one eighth of an inch depends presently if you're doing metric or non metric so the coating the size the things she's come in and mr grid testify they guy and that he's never heard of this product referred to as tile board except in the context of this case it's marketed differently there's different companies that make this stuff it's also the federal reserve the federal regulations also indicate that flooring and the tile bordered distinct products there they're just totally different and i know you probably maybe having a little bit of concern although it's addressed in our brief about the other parts of buildings language that's in the tile board provision in as we explained in our brief that came right from the ts us it was never intended to expand the tile work provision beyond what is actually known in common parlance as well as in the commercial world as tile board and we also put the other parts of building language doesn't necessarily encompass all other parts of building there are examples of tile boards actual tile board being used in other parts of buildings and we include in on the front of a bath tub as opposed to on the wall behind a bear hug or on the front of the counter so there are other places where this product could be used but the other parts of buildings was not intended to expand tile board beyond tile board and you should consider that this product just isn't a tile board as it's known commercially as it's known commonly as it's known within mann on and we tex's own circle of flooring people from the government's attempts to limit the terms of this an aa meeting parisian child war subject merchandise fit squarely within the scope of common meaning there is no material