any merchandise subject to duty of every description this case should begin and end with that ambiguous language under the statutes clear terms m x is allowed to sell duty free gasoline of every description without is that we would be allowed to sell that gasoline the only limitations are those that are present in the statute those limitations include the item has to be dutiable it can be terrible and it can't be an explosive other than a distinction between items that are can't be used in a specific a specific county jurisdiction in three for three months out of the year versus items that are illegal per se so i don't have to be cryptic to duty for example heroin could not be subject to duty because if we tried to declare that we were going heroin and the united states u s customs seized that we're not saying that we can sell anything that might be illegal in canada let's say if heroin were illegal and can what we are saying is that anything that is not her say illegal such that it would be seized upon arriving at the borders of the united states we can sell duty free as long as it's also not a parish at all and not an explosive other than a firecracker and that's the drugs well prescription drugs are listed as a controlled substance controlled substances anything that smuggle or stolen anything that's a trademark violation those types of limits we are not contesting here what we are contesting is and our ability to directly rather regulate  into the united states whether they would be illegal or not i mean what it would if the merchandise is made in the united states so there is no import at the united states that it's produced here well your honor we don't see that but  the rules for that we don't we don't sell anything that comes through domestic commerce the whole construction of a duty free store is that it's a good it that is imported soley for exportation so an x could not go to the local distributor of those books buy a whole bunch of books and try to sell them duty free you can you can sell kentucky which is the duty free store it would have to come from an outside source from a source that create kentucky gas kentucky whiskey for example that has no import no duties ever imposed on it which is one of the limitations so i'm not sure you're right on that specific example but generally anything that through its duty free store has to come from an outside duty free source and never have duties imposed upon it and that's the only way an ex can maintain this structure of having a duty free you get that you have expert testimony that says that it's de mint news has no effect on the environment southeast michigan we don't at the moment on the not complain ok so you have no you have no support for your state and we do have an expert or a report that was part of the record on the women are in junction about the gasoline that on average is used when a car drives from the bridge into canada and we amex follows all of those laws with the type of technology that must be used on the truck and and are does not regulate the type of mechanism that the technology that's used to keep  in from a pump into a car those are not issues that are really for this court because there's no doubt that either an accident either complies with them or and or doesn't regulate them and on the specific issue of driving from the gas station to the came canadian border the only evidence in this record is that on average there is no impact because the gasoline that is in the lines at the time is gasoline that was michigan environment and therefore the gasoline is sold for export and that is the whole construct of a duty free store that the goods are sold for use in canada that's part of a statutory scheme that's also part of the regulations that u s customs was promulgated that specifically say the goods are for use and canada so given that factual background the gasoline that  for can it's not its impact is not in michigan and all these facts and pleadings that's where this court has to come out and interpret those facts as true at least at this stage and  there about the types of labeling requirements that have to be used and what and that's or any other duty store must display and out of those limits and  well by requiring us to post that it is both a recognition that of them that the goods would have to comply and if you're out of things practically about it if we were selling something that were illegal in canada someone drive everyone who bought anything at the end that store was arrested at the canadian border that i'm sure canada would have something to say to us customs about it but again if this council suppose the e p a equivalent in canada  determines that those gas you are selling did not comply with canadian environmental rules with a canadian official have the ability to come to your sort of an axe and investigate and and and pose fines for not complying with canadian law well and not to the precise mechanism but if if our goods were not legal for sale and canada we would not be able to sell them into canada that we have to represent accurately that the goods are subject to the law isn't in canada and you can buy the slots and in that circumstance if our gasoline was not legal in canada we would not be selling it into the canadian market door in the city of detroit subject to michigan law is subject to michigan law for aspects that don't have to do the goods that are being sold so we take no we're not contesting that we have to comply with osha or other kinds of ok others other things i mean you're subject to the jurisdiction so i mean if there was a murder that occurred in your store you would be subject jurisdiction of the state of a driver could fill up outside the county county area drive into the a county area and would not have committed a crime so that's not the good is a legal it's that michigan is attempting to directly regulate a sale of a good enforced in a way that violates that statute and that's an axis position here that's exactly what's happening and what if the statute is standard it your honor that they now says would be different that would be closer to a case like epic systems where the same body meaning congress has said something clearly and the courts are not meant to assume that congress would have been basically says it's not mine but we know that this is not going to be the right number under all circumstances and we recognize that there will be places that  of seven is appropriate for the entire eight county area it's not our position that michigan could not have put this in their step and gotten proves the issue is where where and are it in the e p a are trying to enforce not apply here because of the seven limit we have to give deference to congress intent and here congress's clear intent is that a duty free store like m x can sell any merchandise subject to duty afternoon that afternoon may have please the court elizabeth morris of the michigan department of the attorney general on behalf of the michigan department of agriculture a real development director doug mcdowell let's just jump into the heart of the matter gasoline is different from every other product that and x l s they are lucky to be able to sell a duty free it is different for two reasons one it is not sold in a sealed container that means that every time it is transferred from one tank to another it releases air pollution subject to regulation that's true when it supplier dispenses gasoline into the tank farm it owns intel or that's true when x or various carriers that it  loys transfers the gasoline from taylor to if duty free store in detroit and it's true again when an ex dispenses gasoline from the duty free store to its customers fuel tanks in detroit in w county another thing is different about gasoline that's pretty important and consumers buy it to fuel their personal vehicles it must be used and consumed in the united states before they can actually leave the country they use it when they turn on their cars when they idle their vehicles waiting in line and when they finally drive to and across the ambassador bridge it takes them to canada they do not take it to was determined to be a duty free gooden and our does not end our director mcdowell does not contest the annexes and title to sell gasoline duty free but the duty free law and the environmental law are on parallel tracks they do not conflict with each other the duty free law relates to what at what merchandise may be entered into a warehouse and then sold from that warehouse the environmental law speaks to it it controls ozone pollution by limiting the release of air pollution that comes when you transfer gasoline from one tank into another it is not about this and do you have anything in the administrative record where  the customs laws in promulgating this regulation well what we have we actually have something more recent that is not in the administrative record because e p a apparently just revised in terms of how things were treated but that there was significant regulatory text change and so those new fuel regulations include a section titled exemption for exports of fuels fuel additives and regulated blend stocks of the united states is not exempt under this section and quote so and in the preamble e p a had a table listing the various state requirements that have been incorporated into steps including michigan seven pound gas requirement so e p a is unquestionably of the opinion that the vapor pressure standard applies to gasoline that is dispensed from a retail outlet into consumers vehicles and that is what the summer fuel law is so there's really no question here now i'd like to go to this idea of conflicts now judge bush in his concurring opinion already addressed the fact that there is no conflict between the customs laws and the summerfield law in  the context of do a conflict preemption analysis and even if all we look at is the duty free law we can see that that's true so according to customs seven pound gasoline is the same merchandise type as nine pound gasoline so the customs agency issues a harmonized tariff schedule that lists every type of merchandise that is quote unquote subject to duty and it quantifies that duty for each of those merchandise types they test it includes gasoline but it does not differentiate by various vapor pressure standards so under customs law a stablish ing a seven pound pressure standard during the summer does not limit the type of merchandise that can be entered into amex's warehouse now i had an example from the h s t that i was planning to clear to bush but based on judge griffin's prior creston i'd i'd also like to point out to judge griffin and judge way obviously as well that the h s t in one of its many chapters also lists types of whiskey and it differentiates them into types one of the types of whiskey is bourbon but it does not distinguish further to straight bourbon nor does it distinguish two kentucky straight now that doesn't mean they're not different in the real world the court can certainly take traditional notice of the fact that whiskey and kentucky straight are different however for the purposes of can of customs law it is the same type of merchandise and so there is no problem here now judge white in one of her questions was talking about statutes and regulations now amex's focus on statutes and regulations is obviously a red herring prohibition against selling it or is the the administrator of the e p a to develop regulations prohibiting the say all of anything except nine contrast except in areas where it might be necessary to have a more stringent vapor pressure standard so we are not talking about one federal law and one federal regulation we are talking very clearly about two federal laws and if the court would like to get into the question of recen and ninety amendments somehow repealed by implication part of the the warehouse law there's we're simply saying that there is there is not a conflict whatsoever and  the regulation but what we do not we don't we simply don't have a conflict here amex has complied with the requirements every year since two thousand and thirteen they complied with that this year obviously this year was different because of the pandemic but at the point when the r v pressure standard was applied to m x they at least attempted to comply with that they did have an issue of noncompliance but it wasn't intentional and they are able to comply with the  standard there's another point emic simply doesn't make a plausible argument that what they sell is canadian gasoline the their c e o dan stamper testified that no one has ever inspected the cast of gasoline from a canadian authority and he didn't put forth any explanation as to how a canadian regulator would have the authority to come onto american soil to inspect our gasoline provision and in fact if you look at any of the pumps that are at amex is duty free stores every single one of them has a little sticker provided by m guard that says when it was last inspected and has a one thousand eight hundred number to call and art if there's any problems and as was discussed previously when there was a point when an axe had too much water vapor in its tanks and caused its customers vehicles to break down on the bridge it was embar who was responsible for dealing with that not do you know my understanding is that it changes during the year the other but that it does not drop as low as seven pounds the thing that's unique about gasoline compared to any other product is that it its ability to perform changes in relation to the ambient temperature so in the summer particularly in urban areas where ozone pollution is a problem you want to have that less volatile gasoline so that you're not putting out those pollutants that can then formosan which is a problem but in the winter when it's very cold you need to have higher pressure gasoline because otherwise your car won't start at all and the court can certainly take judicial notice of the fact that although michigan is cold canada is cold is actually used until the customer is on the other side of the border so there is there's two issues with that one is that the embargo regulation if we're going to call it the summer we can let's call the summer fuel up the summer fuel lot is not based on sale the summer fuel law is based on dispensing in transferring because its focus is dealing with the air pollution is released when gasoline is transferred from one tank to another it is not just about selling a particular product and so regardless of how much gasoline is in the tank of a certain number of rhythm selection of consumers  and organic compounds are emitted when an ex receives its gasoline to its tank farm until or again when it transfers it to the duty free store and then again when it goes into the customer's fuel tanks it's not solely about the gasoline when it's burned it's also about the gasoline when it's transferred from one tank to another and this is another thing that's very different about any of the other products so i am excels alcohol at it's duty free stores and they sell alcohol to minors who could not purchase alcohol in michigan who can purchase alcohol in canada and who can bring an open bottles of alcohol with them across the bottom across the border into canada but the fact that they can sell closed containers of alcohol does not mean that they can open up a duty free martini bar let's say and they couldn't say eighteen year olds please come into our premises drink from our duty free keg and then cross the border because what they would be doing is condoning conduct that is not allowed on american soil which is providing alcohol to eighteen year old year olds and twenty year olds the only reason that they're allowed to sell the out the hall to the eighteen year olds one thousand and twenty year olds in the st place is because it's contained in a sealed bottle and it's provided to them at that checkpoint it's considered to be under the supervision of customs and then they are allowed to bring it with them when they go to canada they wouldn't be able to sell gas or they would be a list of the hot eighteen year olds if as part of the sales process you had to open a bottle and take a stick because a let me wear those reds or those rules that you just went through but where are they found there is not a specific rule that says they may sell alcohol to eighteen year olds they do it and i think the understanding is that they're going to make sure that those eighteen year olds don't drink on their promise s and that those eighteen year olds go to canada now i don't know that there's not information on the record as to when the eighteen year old actually would receive that this is far afield one congress wanted too there's a and i don't have the citation for i mean but there is a sentence in the customs law that does say to the effect that there's a license that's required from the state you have to obtain that and frankly can congress be clear congress can always be clear but from the customs law and from the one thousand nine hundred and eighty amendments it is very clear that you are allowed to enter types of merchandise that are subject duty into a warehouse and it is also clear that you are not allowed to transfer dispense sale or offer for sale the little gasoline in areas of the country that have a nose on problem and so that you're referring to the e p a report not refrain to the clean air act your honor specifically the section of the clean air act that you referenced in your st opinion and in your earlier question two opposing counsel appear to reference as american law in that instance no because they would be located in ontario not in wayne county not in the united states so the michigan cip is very location specific if your feet are in wayne county you may not dispense transfer sale or offer for sale low pressure gasoline there's other steps that are different el paso county which is another border region there sip instead of saying you can't transfer dispense they focus on using it so it would be a different question if you're talking about a border store on the other side of el paso but on the other side of wayne county there is no authority for  michigan or for the united states to tell a canadian gasoline retailer what kind of gasoline they may dispense into a  and well that's my question wasn't focused on that might my response was focused on specifically the summerfield law and the summer fuel eyes not only about the sale it's about transferring gasoline from one tank into another tank and the location of those tanks is where the authority hook of the summer fuel law is so if there was a similar law that ontario had they could not apply it in wayne county and wayne county could not and the well frankly the e p a could not do it strapped its authority through customs law on to ontario because the premise of the summer f is wherever your feet are if they're in wayne county you cannot dispense low pressure you cannot express high high pressure gasoline during the summer if the for the questions  counsel we spent most of the time asking questions i'll give you another minute just to wrap it up if you want this is a very early a clear cut case there is no conflict between the two requirements the discussion about whether it's a regulation or whether it's a law is a red herring on one hand michigan and the united states environmental protection agency have authority provided by congress under the clean air act to control dispensing transferring sale of gasoline because as the process of doing so releases pollution into the air and the purpose of the clean air act is to bring the states into compliance with healthy levels of air based on what the e p a determines is healthy and so they are allowed to do that by limiting vapor pressure standards for gasoline on the other hand the duty free or requirements create a legal fiction that benefits domestic commerce by pretending that it's foreign commerce so that it can occur without imposing taxes on it and so we would ask this court to uphold the district court's determination that it should dismiss an excess st amended complaint with prejudice and next can sell gasoline to be free but they must sell low pressure gasoline during the summer think rick thank you very much for bus container and the problem with that example that the district court used as well is that under endurance regulations which have been incorporated into the seven specifically says a person shall not knowingly sell dispense or offer for sale gasoline other than that unless it meets their requirements including the summer bureau fireman's so by the specific term it's the conduct that and are just trying to regulate is not just the emissions it's the actual sale and that's where the conflict is with the statute from you ask about customs because that is the only way that the only language that can regulate the specific act of stamp sale this is not a case about the  conduct it's not about water in the tanks in the underground tanks it's not about even the specific mechanism of refueling into a car or fueling from a truck into an underground it is a specific regulation by and art in the e p a on the type of products that can be sold and that is where the conflict is as ms marceau mentioned there is a concession she has conceded that a statute would trump a regulation and there's a conflict and so from that we start on the same point and here there is simply no way to read the regulation from and e s a in a way that does not authority that says that you shouldn't go out of your way to find a complex but the issue here is that there is simply no way to reconcile them there is no way to say ever axed can sell any good subject to duty w statute says any merchandise subject description and murchison states is then defined as any good any good of every description so when you have words like any and every day and a statute that has to mean our briefs there are numerous cases that talk about any not allowing any type of restriction of any sort and must your honour's have further questions we would ask that your your honour's reverse the district  cribs that have been deemed illegal for some reason and in handed out duty free because they would not be legal for use in canada we could also not sell well let's talk about well st of all this notion that you can still something that's not legal in canada is your it baby health and welfare but congress didn't do so and are certainly within congress's right after this case to go back and amend that statute that happens routinely when that congress thinks that realize it didn't actually say what it meant to say but on the language subject to duty so the three exceptions are subject to duty not a perishable and not an explosive other than a firecracker we ask you a question about the location of a duty free store is there a red stain or the accompanying regulations which are nineteen c f r nineteen point one and point two and those have specific limits about where you need grease stores can be loaded and they can either be in airports or they can be an order of stores like annexes that have to be within twenty five miles of the border and beyond the customs exit point such that someone could not turn around before being go before going into canada and been to canada in a while but presumably you have to go through some sort of a check why you're going to canada you know i guess it's correct where you have to report your your goods that you're bringing i believe that's