occasioned of their imported flexible packaging material called flexible this is a flexible aluminum concer that's what the name is intended to represent is in radiation those specific properties indispensable we would argue and we have bad the aluminum foil is the most indispensable i mean look you both have a point there that are right and you know that each is indispensable right and to the extent that we can develop such a concept of more indispensable which in reality may not necessarily be something that we can determine at the end of the day if the determination from a factual standpoint is that both materials are indispensable well you would review that for clearer and frankly the facts don't support that aluminum foil is any different from indispensability standpoint than what the plastic may prevail in fact the primary characteristics that the lower court determined from the standpoint of what makes it more indispensable are nothing different than characteristics but the foil itself contains flexibility you would not have a flexible packaging material and was all of the components were flexible and strength strength is clearly a supporting proposition when you look at the definition of how a land of material is made and when you look at aluminum foil and its definition in the terrace and the support that it needs from the strength standpoint of quantitative reveal the parties agreed that's not a good basis upon which to review this product there's an incentive to reduce the thickness weight and volume of the materials that are put into this particular material though when you figure that down to make it more flexible you lose some of the strength common industry practice is to add plastic to bolster and enhance the various properties are made so it's your view they're both essential aluminum is just one seventy six which i basically take to happily supply a who wins will win to win another heading and this one might otherwise apply that is it seems to me to say by its terms we defer as the aluminum headings defer to another heading that applies so that you don't get to three  e because chapter one the other chapter seventy six says you can have aluminum plus coding which stay in seventy six provided that they do not thereby assumes th character of articles or products of other headings why doesn't that essentially supply the decision if we will where both chapters seem to have a fair bit of applicability yes well it does it does provide that rational dividing line in cases where you can determine the character of the product the lower courts found both material to be indispensable so america knew there would be no essential character and therefore you would default to g r right  a fair case to be made for the proposition that this does assume the character not plastic but rather of the heading and that the plastic having says you can have a inside layer of metal and still be within that so the premises of the question is does assume the character of the plastic heading and why doesn't this chapter no one the chapter seventy six say well then we differ  plastic that's found in the general explanatory now for chapter thirty nine that is not legally binding does not have the same legal about as that just around the same page i thought i was reading from not an explanatory no but chapter one t assuming the character of an article of another had well we have to first identify what happened in that in this case having thirty nine twenty one which covers other plastic films but we also need to define the scope of that had other types of films does not describe essential characters as a concept needs to be treated as such when you can't find one essential character of g r i want no longer applies so unless we are able to say that seventy six one of the provides that rational dividing line keeps back about almost fifty years the government itself reached out of an industry and determined that fact is essentially laminating plastic to aluminum foil this is well established in the record evidence and well established in the production of multilayer laminate materials so looking at the product that we have do we have a foil do we have class materials at a fish tank and support its back for by definition why don't we hear from the government fulfill if you want the product to fall within seventy six or seven because that product looking at the cut the flexor kind as a whole it must not assume the character of a product of another head respect it's like we were this is where we're looking at the treatment circa treatment and this is where you get to laminated and all it takes but the very  requirement is is is that the end so all of these things going to fly with provided that they do not thereby assume the character of articles and products of other headings so irrespective of all these that i understand you're saying it's like but not thereby assumed the character articles of products of other headings and if we look at the entire product as a whole it's and we perform a character analysis under traditional measures of quantity weight value with thickness plastics dominated and if you look at the if what your position  it's not backed because bass is undefined in the tariff so you have to look at dictionary definitions the dictionary definitions all say that is supposed to be on one side at the rear behind so in this case has a single layer that sandwiched in between multiple layers of plastic it is not on one side so in that respect it is not that and the other thing is that for back we also can look for instructions on to the provision car for foil and it's not simply for the convenience of transport or handling in this case if you look at each of the individual plastic layers each of those layers in part a quality that allows the entire product to be made into a durable flexible rhetorical food pouch that's used by the u s military for the m r e program that is a you can see from the military specifications which this product was designed self that these are very stringent specifications it's there you must have seals that can withstand the retort process that choice fifty degrees fahrenheit forty five sixty minutes under extreme heat and pressure if you have to have that and you and you have to have the ability for that package to be subjected to any sort of air drop or abuse that may occur in the field no industry definition of back for oil the closest that we get is something like a wrap like a sandwich wrap where you have paper on one side and aluminum on the other you might find that in your typical fast food restaurant but if it's not sealed if you notice it's something that would be more of a wrapper you fold it over but you don't have sealed aluminum actually cannot be sealed in the same gauges as we have less work on in order to withstand any of the and i thought your friend on the other side deferred to the fact that there was an industry definition well he may be referring to something that was cited in a cousin's information exchange ruling and from one hundred sixty five for which there was book but in any case that definition had to deal with aluminum foil attached is a coherent substrate and that definition even if you were to look at that definition does not go again any of the for you your honor believes a legal question you still need to meet the requirement of no one deed to show that it has not assumed character or product of another heading and in this case because of plastics it has assumed the character of flexible plastic under thirty nine twenty one  again it's like i just want to clarify also it's like that you never do get to three c in this case here i want is the one that governs and the reason being is because your i one instruct you to look at the terms of the heading along with any chapter section or even if you were to assume that the one layer of aluminum foil is something is something that that you must consider under seventy six of cutting even if you were to start with that provision you must look at the chapter note you are required at that point to look at what the central character is of the product as a whole so we're looking at the relation of the considered material in its use so if you look at the product as a whole which is what the e we have very stringent specifications it's like a lot of the specifications have to do with hermetic seal those are very special very strong seal if they can only be done with plastics at the end it must undergo  retort process again very stringent very rigorous process those two things if you look at the sac many of the more than a dozen specifications will talk about strength that seals and  product as a whole and each of those plastics has this effect characteristics burst resistance seal ability tensile strength all kinds of things it's all of those things put together in part while the ts that i analysis as what would happen in one because you're looking at a central character again for the chair i want to now insist because you have no one key and then you have the to chapter thirty nine that requires you to look at what the essential character of the product is you're going to be doing the same you know the same analysis so you're going to be looking at weight climb the value you're going to be looking at that you can be looking at the product as a whole you can have situations where something has the essential character of two different things today where three b doesn't resolve the issue yes you can you are however in this case you are not out of here i want because what's built into the chair i want chapter seventy six you have to look at the heading terms  july so again here i won because of the no one see it requires you to take a look at what the character of the product is ok so and also for chapter thirty nine is that provided that it retains the central character of plastics so in effect you can't escape an essential character analysis under g r i want so we won't get to be greedy but if you were to get the three  for purposes of the industry defamation is j a z o six five two two j a zero six five four and this is the customs information exchange but governments council identified where they communicated specifically with  industry looming the jury on this issue the issue was what's the definition of back before they reached out to the women industry and got a definition this is the definition of the paper a lot on for years and years until irrelevant because the definition of bad being has no positional reference well let me just say this in your pages in your blueprint for the backing quake you quote only material that uses the term substrate i don't get anything out of those pages that suggest that you would use the term back in a you know one of the same situation sure would be right now i'm thinking this is not fact forget therefore about that and we're back into chapter one the so tell me specifically what indicates that backing is used in this if anything in this as well be there are various companies doing we've cited where customs has recognized that very concept despite the fact that they claim it doesn't exist testimony from the government's witness that says this material is backed on both sides and because it's backed on both or asking you is what is there that supports you not what supports the government but this supports us because their definition their definition is artificially limited to a positional reference throughout the record i off that's true whether or not this testimony should be ignored i don't think it helps you because he's not saying that it can be back on both sides if you use a different definition i think you have will see if we have a record of any both sides but can it be backed if it is on both sides yes it can and where does the ruling say that i'm sorry the rule of the customs information exchange doesn't speak to whether or not on both sides which is why we had to brief this issue the reality is that the backing is an enhancement of the foil it's essentially a lamination that's what the record has established there was testimony by numerous folks on the record that essentially described acting as a lamination for supporting role not a positional reference and not opposed not wanting one side or the other if you look at this particular product you have the foil and it's the foil properties that are improved upon they are not eliminated the enhancement of those unique and definitive characteristics is through the addition of materials to support and shrink them those are by definition back to materials is only when you apply the positional reference that the government has applied only in recent times to suit its desire to classify this product as plastic in reality and commercial reality backing is not equated with a positional reference