[00:00:04] Speaker 03:
We have six cases before us today.

[00:00:08] Speaker 03:
Four are scheduled for argument, and two are cases on the briefs.

[00:00:15] Speaker 03:
So let's start with the first case of this morning.

[00:00:17] Speaker 03:
It's 15-1362, the Acero SA versus the United States.

[00:00:26] Speaker 03:
Mr. Surtilov, did I get your name right?

[00:00:29] Speaker 01:
Yes, you did, Your Honor.

[00:00:30] Speaker 01:
Thank you.

[00:00:31] Speaker 03:
Now, just to make sure, you're taking ten minutes and Miss Cannon, you're going to argue for three minutes and you're reserving two minutes for your rebuttal, correct?

[00:00:41] Speaker 01:
I would like to, yes, Your Honor.

[00:00:42] Speaker 03:
All right, you may proceed.

[00:00:43] Speaker 01:
Thank you very much.

[00:00:45] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:48] Speaker 01:
We are here today because the trial court's opinion threatens to eliminate one of the tools that commerce has been given to fight circumvention of its orders.

[00:00:56] Speaker 01:
By holding that the prior commercial availability of a product

[00:01:00] Speaker 01:
can render that product immune from a minor alteration inquiry and preclude commerce from conducting that inquiry, the trial court created an improper threshold rule.

[00:01:11] Speaker 01:
That rule is contrary to the structure of the statute.

[00:01:14] Speaker 01:
It is nowhere to be found in the legislative history.

[00:01:17] Speaker 01:
And it usurps commerce's authority to develop the best methodology to determine how to implement the anti-dumping duty and countervailing duty statutes.

[00:01:26] Speaker 02:
Is it your position that

[00:01:28] Speaker 02:
the commercial availability factor is irrelevant, entirely irrelevant to the minor alterations inquiry?

[00:01:35] Speaker 01:
Yes, it is, Your Honor.

[00:01:35] Speaker 02:
So even if this product is being sold all over the place, it's just as common as, let's say, 4.75 millimeter, just as common as 5.5 and sold throughout the United States and also produced and sold in the exporting countries.

[00:01:56] Speaker 02:
that would be irrelevant to the minor alterations.

[00:01:59] Speaker 01:
So I should clarify, Your Honor.

[00:02:01] Speaker 01:
Our position is that the fact that a product is available itself is irrelevant.

[00:02:06] Speaker 01:
Now there are other considerations that shade into the same area.

[00:02:10] Speaker 01:
So for example, one of the things that commerce considers is the pattern of trade, how patterns of trade have changed after the imposition of an order.

[00:02:19] Speaker 01:
That may have elements of commercial availability to it, but

[00:02:24] Speaker 01:
in the minor alteration inquiry.

[00:02:26] Speaker 01:
Commerce is fundamentally looking at, it's applying the five criteria that are stated in the legislative history.

[00:02:34] Speaker 01:
And it also uses some of its own criteria, such as how and when the merchandise entered the United States, the timing and quantity of entries during the relevant period.

[00:02:43] Speaker 01:
So there are aspects of that inquiry that get captured, in the same way that there are aspects of the gamesmanship inquiry that the trial court was so concerned about that get captured.

[00:02:54] Speaker 04:
read the trade court's opinion as not based on some blanket rule of whether the merchandise was commercially available somewhere on the planet.

[00:03:04] Speaker 04:
But instead, the trade court imputed that knowledge to the petitioners, to commerce, and believed that he found indicia that, in fact, commerce

[00:03:21] Speaker 04:
was aware of and therefore was contemplating the existence of smaller diameter wire rod and therefore it's reasonable for him to conclude that it was specifically excluded.

[00:03:34] Speaker 00:
So I have three basic points.

[00:03:39] Speaker 04:
So then the rules such as it is that the trade court was trying to create wasn't a blanket rule against any and all commercially available merchandise that existed at the time of the order

[00:03:52] Speaker 04:
But it was more about, the question is, in what circumstances can we conclude that commerce fairly knew about it and was aware of it when it was crafting the scope of the order?

[00:04:03] Speaker 01:
So putting aside the fact that the record doesn't actually support finding that this product was available in the United States or that it was being produced in Mexico at the time of the order, putting aside that fact, the trial court's finding still relies on the basic premise

[00:04:18] Speaker 01:
that at the outset in determining whether commerce can even conduct a minor alteration inquiry uh... we need to consider whether this product was excluded i would like to say outside this is the date of the following of the petition what i say outside i mean at the outset of the analysis of commerce is of whether commerce's determination was reasonable because remember what happened here is that the court didn't consider commerce's analysis of the five factors didn't consider commerce's weighing of the evidence it stopped

[00:04:45] Speaker 01:
the analysis at this product was commercially available, falls outside the literal scope of the order, therefore we can infer that it was deliberately excluded.

[00:04:54] Speaker 01:
And I would like to suggest that... Well, why don't you go ahead and... I would like to suggest that the whole focus on exclusion actually sort of misses the point, because the whole point of a minor alterations inquiry, of an anti-circumvention inquiry, is that products that fall outside the scope of an order

[00:05:13] Speaker 01:
can be brought in, can be captured if they're being used to circumvent that order.

[00:05:16] Speaker 01:
Now the backstop to that, of course, is Wheatland.

[00:05:19] Speaker 01:
Wheatland is a unique factual circumstance in which sometimes it's just so clear that a product was known to petitioners at the time they asked for the order, was deliberately excluded, that it makes no sense to even conduct a minor alteration inquiry.

[00:05:38] Speaker 04:
Let me just ask hypothetical.

[00:05:40] Speaker 04:
Okay, so during the investigation, and there's a lot of letters being sent back and forth, although it doesn't appear in the scope of the order, the petitioners, telecomers, we're aware that there is small diameter wire rod lower than five millimeters, but we don't care about those.

[00:05:59] Speaker 04:
What we care about is five to 19 millimeter wire rod.

[00:06:03] Speaker 04:
And then, of course, the scope order says five to 19.

[00:06:06] Speaker 04:
It doesn't specifically exclude

[00:06:08] Speaker 04:
doesn't go further and say, and we specifically say, not anything below five.

[00:06:13] Speaker 04:
But you can tell during the investigation process, the petitioners have made a proclamation that they don't care about things below five.

[00:06:22] Speaker 04:
I think would you say, would Commerce say, that that would be an example of, OK, we wouldn't think it's appropriate to use a minor alterations inquiry under those circumstances when

[00:06:38] Speaker 04:
you know, the importer now shows up with 4.75 millimeter rod.

[00:06:43] Speaker 01:
No, Your Honor, I think the proper analysis in that case would be for Commerce to go through the minor alteration inquiry and weigh that the kind of evidence... You wouldn't think it was disclaimed somehow during the process?

[00:06:54] Speaker 01:
I don't think the fact of disclaimer necessarily has to preclude Commerce from conducting a minor alteration inquiry.

[00:07:01] Speaker 03:
So in Whitlam, the court found a disclaimer.

[00:07:02] Speaker 03:
Why don't you tell us the difference between

[00:07:05] Speaker 03:
what the court found in Wheatland, any disclaimer in Wheatland and any disclaimer that the trade court found.

[00:07:14] Speaker 01:
So there are several critical differences between this case and Wheatland.

[00:07:18] Speaker 01:
The first is that in Wheatland, we were actually dealing with two separate products.

[00:07:23] Speaker 01:
We were dealing with different usages of different products and petitioners.

[00:07:27] Speaker 03:
The standard pipe and long pipe?

[00:07:30] Speaker 01:
That's right.

[00:07:30] Speaker 01:
It's standard pipe versus line pipe.

[00:07:33] Speaker 01:
Line pipe.

[00:07:34] Speaker 01:
And during the investigation that led up to the imposition of the order, petitioners explicitly said, we're focusing on standard pipe.

[00:07:43] Speaker 01:
We're going to exclude line pipe.

[00:07:45] Speaker 01:
And only after they discovered that line pipe was actually then being used for the same purposes as standard pipe, they wanted to bring it back in.

[00:07:54] Speaker 01:
And this court, the other critical difference is that Wheatland doesn't say that commerce can't conduct a minor alteration inquiry.

[00:08:01] Speaker 01:
Wheatland says, it is reasonable for commerce

[00:08:04] Speaker 01:
to decline to do so based on the unique and clear facts that are available to it.

[00:08:09] Speaker 01:
And this court, in subsequent cases, in Nippon and in Target, has clarified the broad language of Wheatland, the broad language upon which the trial court principally relied in its exclusion analysis, to say that that language related to a scope inquiry, not a circumvention inquiry.

[00:08:27] Speaker 01:
And indeed, in a scope inquiry, it is appropriate to consider exclusion because

[00:08:31] Speaker 01:
scope can't reach products that are outside the unambiguous language of an order.

[00:08:36] Speaker 01:
The whole purpose of an anti-circumvention inquiry is to reach products that are outside the clear state of scope.

[00:08:43] Speaker 01:
And so in Nippon, this court overturned a trial court preliminary injunction preventing commerce from conducting a minor alteration inquiry.

[00:08:53] Speaker 01:
And in fact, it did so in a circumstance where the parameters of the scope were also numerically defined.

[00:08:59] Speaker 01:
There was a numeric definition of percentage of boron content that could be in specified steel in the order.

[00:09:09] Speaker 01:
The article that was alleged to be a minor alteration exceeded those small percentages.

[00:09:17] Speaker 01:
Commerce believed that it was proper to conduct a minor alteration inquiry.

[00:09:21] Speaker 03:
In this case, it seems that the petition did have a specific exclusion, correct?

[00:09:27] Speaker 03:
It was a wire rod.

[00:09:29] Speaker 03:
made out of certain alloys or bearing type steel and things of that nature.

[00:09:34] Speaker 03:
There were exclusions that were made in this case.

[00:09:38] Speaker 01:
There were exclusions for essentially other types of products.

[00:09:42] Speaker 01:
As Commerce found in its final determination in its IMD memorandum, which the court confined it starting at JA804,

[00:09:58] Speaker 01:
The nature of the product is determined by the nature of the rod is determined by its chemical content, its ductility, and all of those characteristics.

[00:10:06] Speaker 01:
So there are actually different types of products that are at issue.

[00:10:09] Speaker 03:
Size dictates also the type of the product or we can establish class or kind or product, correct?

[00:10:17] Speaker 03:
It can, but commerce... The diameter of a rod?

[00:10:19] Speaker 01:
Theoretically, it could, Your Honor, but in this case, in its analysis, in its five-factor analysis, commerce found that it did not

[00:10:27] Speaker 01:
because commerce found that this was actually different diameter rods were essentially the same product.

[00:10:32] Speaker 01:
They had the same physical characteristics at JA812.

[00:10:35] Speaker 01:
Commerce makes these findings.

[00:10:37] Speaker 01:
There were the same user expectations, the same end use, same trade channels.

[00:10:41] Speaker 01:
The cost of modifying equipment to produce 4.75 millimeter rod as opposed to 5 millimeter rod or 5.5 millimeter rod was simply negligible.

[00:10:52] Speaker 02:
Does the record reflect where the 5 to 19

[00:10:57] Speaker 02:
numbers come from?

[00:11:00] Speaker 02:
I am not, on this record, Your Honor, I can't off the top of my head point to where... There are a few places where 5.5, I think to 18.5, show up and presumably the 5 to 19 was intended to pick up manufacturing tolerances, but you don't have a particular source that we can look at and say, aha, there's a standard book of

[00:11:25] Speaker 02:
medium-sized wire rod and it is defined in a certain way.

[00:11:30] Speaker 01:
No, I'm not aware of an industry standard or anything like that.

[00:11:33] Speaker 01:
The trial court's opinion in DSR 01, starting at JA 33, discusses the history of the petition and what the facts show and what Commerce found in its initiation notice and its IND memo is that a 5.5 millimeter rod was the smallest that was being produced in Mexico and imported into the United States

[00:11:54] Speaker 01:
uh... at the time uh... and calmer and in the petitioners basically put a slightly larger bracket around that and said this this is the kind of rod that was being that that might injure us now four point seven five millimeter on there's record evidence with that it was being produced in japan capacity in mexico for production of uh... four point seven five ron it was not being produced at the time of the no i'm not asking if it's being produced was a capacity to produce it i'd

[00:12:24] Speaker 01:
What the record reflects, I don't know whether the record reflects it.

[00:12:27] Speaker 02:
I thought the record reflected that they actually had to expend funds to retool to get to 4.75.

[00:12:34] Speaker 02:
There is something in the record to that effect, is there not?

[00:12:36] Speaker 01:
Yes, yes.

[00:12:36] Speaker 01:
It's specifically Diocero.

[00:12:38] Speaker 01:
I don't know whether the country in general or whether other producers in the country.

[00:12:41] Speaker 02:
This producer.

[00:12:42] Speaker 01:
Yeah, but I think it's also important to note that commerce analyzed the cost of

[00:12:47] Speaker 01:
altering the machinery, the tooling to produce this smaller rod.

[00:12:53] Speaker 01:
And it found that the percentage, the cost of doing so was minuscule.

[00:12:57] Speaker 01:
At JA 3705, it's confidential data, but if the court looks to it, it can see that the percentage really is minuscule.

[00:13:03] Speaker 04:
Mr. Zverhov, is there

[00:13:08] Speaker 04:
rule is there I'm trying to figure out what your rule is for when it would be wrong or commerce would be barred from doing a minor alterations inquiry why not could you change the facts of this case in a way that would then demonstrate why in that circumstance commerce wouldn't work with a minor alterations inquiry or are you saying that

[00:13:35] Speaker 04:
There's never a circumstance where commerce is barred from doing a minor alterations theory.

[00:13:43] Speaker 01:
I think our position is the latter, Your Honor, that commerce can always initiate and conduct a minor alterations inquiry, and where a product is just so clearly... So even if the scope of the order explicitly excludes something?

[00:13:56] Speaker 01:
It may be reasonable, as in Wheatland, and that's why I said earlier, Your Honor, that Wheatland is the backstop to this.

[00:14:01] Speaker 01:
In some cases, it's just so clear that commerce doesn't have to initiate.

[00:14:06] Speaker 01:
But I don't think there's any precedent to support the notion that commerce can't actually conduct a five-part test and then have the analysis evaluated by the court based on the five factors that commerce uses, the methodological factors that commerce uses.

[00:14:21] Speaker 01:
I mean, in other words, I don't think there should be.

[00:14:23] Speaker 04:
So even if there's a specific and expressed disclaimer of a particular product, a particular, particular product in the scope of the order,

[00:14:35] Speaker 04:
that you would say, no, that doesn't count as a disclaimer that bars commerce from doing a minor alterations inquiry later on.

[00:14:43] Speaker 01:
I think it would be reasonable for commerce not to do a minor alterations inquiry and pursuant to Wheatland.

[00:14:50] Speaker 01:
If the court were to extend Wheatland, then commerce could be barred.

[00:14:54] Speaker 01:
But as it is, I am not aware of any law or any basis, any precedent to suggest that commerce is barred from even conducting an analysis.

[00:15:03] Speaker 02:
And you're urging us not to.

[00:15:05] Speaker 02:
as I hear you not to adopt such a rule, I think.

[00:15:09] Speaker 01:
That's precisely correct, Your Honor.

[00:15:11] Speaker 01:
The trial court's central error here is that it created a categorical rule that renders the minor alteration provision powerless against a whole class of merchandise.

[00:15:20] Speaker 01:
We believe that is legal error and a problem.

[00:15:22] Speaker 03:
Okay.

[00:15:22] Speaker 03:
You're well over your time by two minutes.

[00:15:24] Speaker 01:
I apologize.

[00:15:25] Speaker 03:
That's okay.

[00:15:26] Speaker 03:
We led you there with our questioning.

[00:15:28] Speaker 03:
Ms.

[00:15:28] Speaker 03:
Canna, let's hear from you.

[00:15:37] Speaker 05:
Thank you, Your Honor.

[00:15:38] Speaker 05:
May it please the court?

[00:15:39] Speaker 05:
I'm Kathleen Cannon, representing domestic producers in this case.

[00:15:42] Speaker 05:
Let me first answer your question, Your Honor, about the specification.

[00:15:46] Speaker 05:
There are indeed industry specifications.

[00:15:49] Speaker 05:
They are ASTM specifications that apply to all steel products.

[00:15:52] Speaker 05:
They're on the record in the petition in the case.

[00:15:55] Speaker 05:
And those were the parameters that we as petitioners looked for when we defined the product.

[00:15:59] Speaker 05:
Wire rod was defined as a product that ranged from a 5.5 millimeter

[00:16:03] Speaker 05:
diameter upwards.

[00:16:05] Speaker 05:
And so we looked at that, we recognized some nominal changes that could be made, and we dropped the base to 5.0 millimeters, because the petitioner's understanding that was the smallest wire rod that was being made or could be made.

[00:16:18] Speaker 02:
And 18.5 was the top?

[00:16:19] Speaker 05:
Exactly.

[00:16:20] Speaker 05:
So that was where the parameters came from.

[00:16:22] Speaker 04:
What do you mean when you say that was the smallest that could be made?

[00:16:24] Speaker 04:
I mean, the other side points to JA228, which is a page in your petition, your original petition,

[00:16:32] Speaker 04:
Block quotes an earlier report showing that, yes, the commercially significant smallest diameter was 5.5 millimeter diameter, but at the same time, that necessarily contemplates that there must have been something

[00:16:48] Speaker 04:
maybe commercially smaller, but nevertheless something smaller than 5.5 millimeters.

[00:16:53] Speaker 05:
Yes, you're on.

[00:16:54] Speaker 05:
That's correct.

[00:16:54] Speaker 05:
But what was smaller was the range between 5.0 and 5.5.

[00:16:59] Speaker 05:
That was what was smaller, and that was why we dropped the range to 5.0.

[00:17:02] Speaker 05:
There's nothing that suggests anything was below 5.0, which is where we drew the base for the petition scope.

[00:17:09] Speaker 02:
Although that size was being produced in Japan at the time I take it.

[00:17:14] Speaker 05:
Not to our knowledge, and that's the critical point.

[00:17:16] Speaker 02:
Well, isn't there a finding by commerce to that effect?

[00:17:19] Speaker 05:
Absolutely not, Your Honor.

[00:17:20] Speaker 05:
The finding by commerce was that it was being produced

[00:17:23] Speaker 05:
but not that we or they knew about it at the time of the case.

[00:17:26] Speaker 02:
Oh, I didn't ask about that.

[00:17:26] Speaker 02:
But it was being produced.

[00:17:28] Speaker 05:
It was being produced in Japan.

[00:17:29] Speaker 05:
A technical report came out.

[00:17:31] Speaker 05:
But that report was published two months after the order was issued in our case.

[00:17:35] Speaker 05:
So there's nothing of record on our case that at any time, either when we filed the petition or when we discussed the scope, that we or commerce had any knowledge of that product's existence.

[00:17:46] Speaker 05:
So to read in from the facts of record as they existed at that time that we knew and deliberately excluded the product,

[00:17:53] Speaker 05:
is incorrect.

[00:17:54] Speaker 05:
It was not a well-known product.

[00:17:55] Speaker 04:
So you're saying that you were aware of commercially available wire rod that was less than 5.5 millimeters, that was down to 5 millimeters, and then that's why the ultimate scope moved down from 5.5 to a bottom range of 5.0?

[00:18:15] Speaker 05:
Correct.

[00:18:16] Speaker 04:
Okay, because my understanding was it was more just about manufacturing tolerances.

[00:18:20] Speaker 05:
Exactly.

[00:18:20] Speaker 04:
Not that there was

[00:18:21] Speaker 05:
That's true, but that was why we were dropping it to the 5.0 because we wanted to allow for that possibility.

[00:18:28] Speaker 05:
When you are a petitioner and you're defining a scope, you are trying to identify the products that are hurting you, that actually are being produced.

[00:18:34] Speaker 05:
You don't want to sweep in other products that aren't being produced or that you don't produce and that aren't injuring you.

[00:18:40] Speaker 05:
The whole goal of the case is to focus on what is causing harm, not to be overly broad and sweep in other products.

[00:18:46] Speaker 05:
That's part of the problem here.

[00:18:48] Speaker 05:
Once you define that in a way that's actually focused on the product that's causing you harm and that commerce and customs can implement in an order, then to be told that now if somebody tweaks it slightly, and remember this tweak is 0.25 millimeters, that's the size of a grain of sand, a minor, minor change, went to the same people, sold it to the same purposes, deprived us of our business, that was what the minor alteration provision was designed for.

[00:19:13] Speaker 03:
It seems to me that you can't

[00:19:16] Speaker 03:
You can't allege that a certain size product is dumping.

[00:19:20] Speaker 03:
If you have no evidence that it's being produced anyway.

[00:19:23] Speaker 05:
Absolutely, Your Honor.

[00:19:23] Speaker 05:
There would be no way to do that.

[00:19:26] Speaker 03:
OK.

[00:19:27] Speaker 05:
Thank you very much.

[00:19:31] Speaker 03:
Mr. Campbell.

[00:19:38] Speaker 06:
Good morning, Your Honors.

[00:19:39] Speaker 06:
May it please the court.

[00:19:41] Speaker 06:
A product that is expressly and knowingly excluded from an order

[00:19:45] Speaker 06:
cannot later be found to be a minor alteration of subject merchandise.

[00:19:48] Speaker 03:
How is this expressly or knowingly excluded?

[00:19:51] Speaker 03:
What are you pointing at in the order?

[00:19:53] Speaker 06:
In terms of the express exclusion is clear in the very first line of the scope.

[00:19:59] Speaker 06:
The scope was consciously defined by petitioners to limit subject merchandise to wire rod with a diameter of 5.00 millimeters

[00:20:09] Speaker 06:
up to 19.00 million.

[00:20:11] Speaker 03:
That identifies the basis for the petition, but does it say that certain other types of product were excluded?

[00:20:20] Speaker 06:
It's an exclusion by definition, in the sense that, by necessity, if petitioners are limiting the subject merchandise to a precise diameter range, and the minimum diameter range

[00:20:38] Speaker 06:
is 5.00 millimeters.

[00:20:40] Speaker 06:
By definition, everything below that is excluded.

[00:20:42] Speaker 02:
And therefore, if you have a range in size, a range in weight, a range in tensile strength, any characterization such as that would necessarily mean you imply or you infer an exclusion of everything outside of the range, and there could be no amendment of the

[00:21:06] Speaker 02:
no minor alteration analysis?

[00:21:09] Speaker 02:
Is that your argument?

[00:21:11] Speaker 02:
The argument is that if a product is expressly... I understand, but the next step in the argument that I heard you making was that the reason there is express exclusion is because you have a range.

[00:21:22] Speaker 02:
And once you have a range, everything outside of the range is verboten for minor alterations.

[00:21:29] Speaker 02:
And are you saying that with respect to all characteristics of the described good?

[00:21:34] Speaker 06:
In this case, with respect, when there's such a clear diameter range, that's express.

[00:21:40] Speaker 06:
But our case is based on two factors, an express, which is based on the court's precedent in the plain language of the statute, an express exclusion based on a precise numeric diameter range, and the petitioner's knowledge of the product that was being excluded.

[00:21:56] Speaker 03:
Let's look here.

[00:21:56] Speaker 03:
I mean, it seems to me that there was an express exclusion in this case.

[00:22:01] Speaker 03:
And that's, for example,

[00:22:04] Speaker 03:
wire rod made out of certain alloys, or bearing quality steel, or those were expressly excluded, correct?

[00:22:12] Speaker 03:
I mean, if you were to investigate and look at the petition and look at the class and kind determination and others, you would expect that that is expressly excluded.

[00:22:23] Speaker 06:
Well, Your Honor, the appellants argued that

[00:22:28] Speaker 06:
There is a list of products that are specifically excluded at the end of the order, such as tire, bead, quality, wire, rod, and others.

[00:22:36] Speaker 03:
But, and the petitioner... So would you call that an express exclusion?

[00:22:41] Speaker 06:
Yes, that is an express exclusion, but our exclusion is even clearer.

[00:22:45] Speaker 06:
The purpose of a list of products that are specifically excluded, those products are included in a list of products specifically excluded only because those products otherwise satisfy the scope definition.

[00:22:56] Speaker 06:
In our case, the very first line of the scope sets a clear minimum diameter to the hundredth of a millimeter.

[00:23:05] Speaker 06:
And it would be totally redundant.

[00:23:07] Speaker 03:
So explain how your argument is consistent with Wheatland.

[00:23:11] Speaker 06:
Actually, our facts are stronger than in Wheatland.

[00:23:14] Speaker 06:
In Wheatland, it involved an investigation that was brought against standard pipe.

[00:23:20] Speaker 06:
And the scope, as defined by the petitioners in the investigation,

[00:23:25] Speaker 06:
was unclear as to whether dual stenciled pipe, which is pipe that would satisfy both standard and line pipe specifications, would be subject or not.

[00:23:35] Speaker 06:
So Commerce requested that petitioners clarify.

[00:23:38] Speaker 06:
Petitioners clarified that no dual stenciled pipe is not subject to this case.

[00:23:43] Speaker 06:
And for that reason, when Commerce issued the order, it included dual stenciled pipe in the list of specific exclusions.

[00:23:50] Speaker 06:
In our case,

[00:23:51] Speaker 06:
It's clear from the very first line.

[00:23:54] Speaker 03:
The dual stencil pipe, that was the line pipe?

[00:23:56] Speaker 06:
Yeah, dual stencil to standard pipe and line pipe stencil specifications.

[00:24:00] Speaker 06:
But in our case, the exclusion of small diameter wire rod, wire rod with diameters less than 5.00 millimeters, that's precise, to a hundredth of a millimeter, is expressed and clear from the very first line of the scope, defined by petitioners.

[00:24:15] Speaker 03:
But it says, it gives you a range of diameter.

[00:24:20] Speaker 03:
But it doesn't say all other diameters above or below this range are hereby excluded.

[00:24:26] Speaker 06:
It doesn't have to.

[00:24:26] Speaker 06:
That would be perfectly redundant.

[00:24:28] Speaker 03:
Wouldn't that be the specific exclusion under Wheatland?

[00:24:34] Speaker 06:
I don't think Wheatland was... In Wheatland, the facts of the case involved a product that was listed as a specific exclusion at the bottom.

[00:24:42] Speaker 06:
But the point of Wheatland is that a product that is unequivocally excluded knowingly cannot be the subject of a minor alteration.

[00:24:50] Speaker 06:
And in our case, we don't have the case, the scope does not say in the list of products that are specifically excluded that wire rod with diameters less than 5.00 millimeters is specifically excluded.

[00:25:02] Speaker 06:
But to do so would be absurd and redundant because the very first line of the scope already makes crystal clear that subject merchandise is limited to wire rod within a precise numeric diameter range.

[00:25:16] Speaker 06:
And if petitioners had intended for the

[00:25:18] Speaker 06:
scope to include all ranges, all wire rod, they would not have included that numeric diameter range, and that diameter range would be meaningless.

[00:25:27] Speaker 02:
You said a moment ago, I think, that the petitioners, I may have misunderstood you, but I think you said that petitioners knew about the existence of wire rod that was below the 5.0 millimeters.

[00:25:42] Speaker 02:
Ms.

[00:25:42] Speaker 02:
Cannon says that's not so.

[00:25:45] Speaker 02:
Can you point us to something in the record that supports your view on that factual question?

[00:25:51] Speaker 06:
Yes.

[00:25:52] Speaker 06:
There are a number of factors that establish, provide strong evidence of the petitioner's knowledge of small diameter wire rod, which I'm defining to mean wire rod with diameters less than 5.00 millimeters.

[00:26:03] Speaker 06:
First off is the fact that the first line of the scope itself, if they hadn't intended to.

[00:26:08] Speaker 02:
No, I don't want the kind of one could infer from this that they must have type evidence.

[00:26:14] Speaker 02:
I'm looking for something.

[00:26:16] Speaker 02:
uh... more concrete such as a finding by commerce or some specific evidence that you can point to that the there was knowledge that that japan had such a problem offers to all of his forces first commercial availability finding commerce made that finding uh... when is it as to the fact of commercial availability i didn't see anything in that finding as to the knowledge of the commercial availability in japan

[00:26:43] Speaker 06:
Well, it should be clear that if a product, small diameter wire rod, is commercially available, these are, US producers are sophisticated companies, they're in that industry, they have to know that it exists.

[00:26:54] Speaker 02:
So you're inferring knowledge.

[00:26:56] Speaker 02:
You don't really have any direct evidence of knowledge.

[00:27:00] Speaker 06:
Well, it's very, it's evidence of, it is evidence of knowledge in the sense that there's more to it.

[00:27:07] Speaker 06:
There was also a US producer charter rolling that's in the record that was making

[00:27:11] Speaker 06:
four millimeter wire rod as early as the 1990s and then of course there's the Kawasaki report that gets into confidential information but I'm not sure that that evidence with respect to rolling show production at the time of the filing the petition well nevertheless even if it didn't petitioners had to have been aware that small diameter wire rod was capable of being produced and despite that

[00:27:38] Speaker 03:
They chose to limit the... Well, that's true, but they're bringing a dumping petition and they're obligated to support the petition with evidence.

[00:27:45] Speaker 03:
You can't file a dumping petition based on imaginary products or products that aren't there.

[00:27:53] Speaker 03:
That's incorrect, Your Honor.

[00:27:54] Speaker 06:
Petitioners have a wide latitude to define the scope as they please, and they often will include products... That's true, but they must supply evidence to support that scope.

[00:28:04] Speaker 06:
All they had to do was say this product, this investigation covers wire rod.

[00:28:09] Speaker 06:
They did not do that.

[00:28:10] Speaker 06:
They made a conscious choice to limit the scope of subject merchandise to wire rod with a diameter of five millimeters up to 19 millimeters.

[00:28:19] Speaker 06:
And that was a conscious decision to exclude any wire rod outside, any wire rod outside.

[00:28:24] Speaker 03:
Why would they do that?

[00:28:25] Speaker 03:
Why not just say all steel?

[00:28:28] Speaker 06:
Because, well, they certainly couldn't bring a case against all steel.

[00:28:31] Speaker 06:
It has to be specific to a product.

[00:28:32] Speaker 03:
How can they bring a case against all wire rod?

[00:28:35] Speaker 03:
I mean, they're the ones that have to prove dump and material injury.

[00:28:42] Speaker 06:
Well, Your Honor, it's common for petitioners to find... Wire rod is a very specific product that is subject to ASTM specifications, and it's common for petitioners to define a scope to include...

[00:28:55] Speaker 06:
include products that are not, even though certain products that would be covered by the scope might not be actually being manufactured by the U.S.

[00:29:04] Speaker 06:
producers as subject producers at the time.

[00:29:07] Speaker 06:
That's not uncommon.

[00:29:08] Speaker 06:
Petitioners will do that to protect themselves against circumvention.

[00:29:11] Speaker 02:
Ms.

[00:29:12] Speaker 02:
Cannon, again, I think referred, I believe it was Ms.

[00:29:15] Speaker 02:
Cannon, referred to the ASTM standards for this category of wire rod as being 5.5 to 18.5.

[00:29:23] Speaker 02:
Is that accurate?

[00:29:25] Speaker 06:
That is accurate.

[00:29:26] Speaker 02:
And what is that called in the ASTM?

[00:29:29] Speaker 06:
It's called the nominal diameter standard.

[00:29:32] Speaker 06:
The nominal standard is from 5.5 up to 18.5.

[00:29:35] Speaker 02:
And below, is there anything below that that has a category in terms of below that diameter?

[00:29:42] Speaker 06:
Not in the ASTM standard, but it was well known that small diameter wire rod was capable of being produced.

[00:29:49] Speaker 06:
Even the ITC report that

[00:29:52] Speaker 06:
was relied on in the petition to help define wire rod acknowledged that wire rod in diameters less than the nominal 5.5 millimeters was commercially available.

[00:30:06] Speaker 03:
Is it your argument that once a petitioner, for example, sets a range that it's impossible to bring a minor alteration case against that range?

[00:30:16] Speaker 03:
For example, what if here we're talking about wire rod that's 4.998

[00:30:24] Speaker 03:
And that's below five.

[00:30:25] Speaker 03:
So under your argument, there's no way you could bring a petition or a minor alteration inquiry based on that, correct?

[00:30:35] Speaker 06:
That's not our position.

[00:30:37] Speaker 06:
Our position, which is based on the court's precedent in Wheatland and Nippon and the plain language of the statute, is that a product cannot be subject to a minor alteration or cannot be found to be a minor alteration if it was both unequivocally excluded

[00:30:53] Speaker 06:
and was well known.

[00:30:54] Speaker 06:
In this case, we have both factors.

[00:30:59] Speaker 06:
Wire rod with diameters less than 5.00 millimeters is expressly and unequivocally excluded in the first line of the scope.

[00:31:07] Speaker 06:
And the product was well known based on commerce itself found that it was commercially available.

[00:31:13] Speaker 06:
A US producer was making it back in the 1990s.

[00:31:16] Speaker 06:
According to the Kawasaki report that is on the record,

[00:31:21] Speaker 06:
Kawasaki steel, a prominent Japanese producer... Was there evidence that the U.S.

[00:31:25] Speaker 03:
producer was making that rod at the time of the final petition?

[00:31:31] Speaker 06:
There's no... I'm not aware of any evidence on the record or that would establish that, but Charter Rolling was making it back as early as, you know, 1990s.

[00:31:40] Speaker 06:
So there was clear knowledge on the part of the U.S.

[00:31:43] Speaker 06:
producers that small diamond or wire rod was capable of being produced at a minimum.

[00:31:49] Speaker 06:
And they nevertheless made a conscious choice to limit the scope of the subject merchandise to a precise diameter range.

[00:31:55] Speaker 03:
What evidence can you point the court where we would find commercial availability, meaning sold on the market, produced, sold on the market of 4.75 wire rod in the United States or in the subject countries?

[00:32:13] Speaker 06:
That would be the, on the record, there is the evidence.

[00:32:16] Speaker 06:
And we cite, the sites are in our briefs.

[00:32:19] Speaker 06:
that Charter Rolling was making wire rod down to four millimeters as early as the 1990s.

[00:32:24] Speaker 03:
Charter Rolling was not making, I don't think, I think the evidence shows that they were not producing this at the time of the final petition.

[00:32:32] Speaker 03:
Do you have any other evidence you can point us to?

[00:32:36] Speaker 06:
I'm not aware of any, Your Honor, but it doesn't matter, even if it were the case that no U.S.

[00:32:41] Speaker 06:
producer was making small diamond or wire rod at the time of the petition, the fact that they knew it was capable of being made

[00:32:48] Speaker 06:
demonstrates their knowledge that they were limiting the scope of the subject merchandise to a certain diameter range with intent.

[00:32:55] Speaker 02:
That seems to me to really reduce to the test that Judge Rainer was referring to when he asked his question of you.

[00:33:04] Speaker 02:
The test being, if it's a range, there are no minor alterations.

[00:33:08] Speaker 02:
Because the only way this is going to come up is if somebody does, in fact, produce something that's outside of the range so we know they're capable of producing it.

[00:33:17] Speaker 02:
And the fact that they're capable of, according to your test, is enough to mean that range is it.

[00:33:22] Speaker 02:
You can't go beyond the range.

[00:33:23] Speaker 02:
That seems to me a range answers everything type inquiry.

[00:33:29] Speaker 02:
Isn't that really what your position is?

[00:33:33] Speaker 06:
Only if there's knowledge that it is capable of being produced.

[00:33:39] Speaker 02:
And here we have that.

[00:33:40] Speaker 02:
It's going to be a rare case, I suppose, in which somebody actually does produce

[00:33:45] Speaker 02:
something, say the 4.75, and you're not going to be in a position to say, well, of course, everybody knew it could be produced.

[00:33:51] Speaker 02:
Look, it is being produced and in large quantities.

[00:33:55] Speaker 02:
I just think that the category of cases that depart from the range is it rule is going to be essentially a null set.

[00:34:07] Speaker 06:
Well, Your Honor, the first line of scope definitely establishes that range.

[00:34:11] Speaker 06:
And that range does show a conscious decision to exclude everything outside that range.

[00:34:17] Speaker 06:
I mean, it's not as if petitioners are without a remedy.

[00:34:19] Speaker 06:
What they should have done is brought a new petition against a small diameter wire rod.

[00:34:23] Speaker 06:
There's a case, for example, on line pipe from Mexico in which the petitioners first brought a case against what they call a large diameter line pipe.

[00:34:33] Speaker 06:
And the outside diameter was 16 inches or more.

[00:34:37] Speaker 06:
And later, they brought another case against Line 5.

[00:34:41] Speaker 03:
So your argument is, let's forget about 1677J and just file a new case.

[00:34:47] Speaker 03:
You don't have a basis for an anti-circumvention case, because anything can be produced.

[00:34:54] Speaker 03:
And if it's being circumvented, meaning a minor alteration or something that's later developed, tough luck.

[00:35:02] Speaker 03:
You didn't put it in your petition.

[00:35:04] Speaker 03:
Thereby, you excluded it.

[00:35:05] Speaker 03:
and you put it in your petition, you knew about it or should have known about it, bring another case.

[00:35:10] Speaker 03:
That's your argument.

[00:35:12] Speaker 06:
Well, according to the case law of Wheatland and Nippon and the plain language of the statute, that's the way it works.

[00:35:19] Speaker 06:
If a product is unequivocally excluded and well known, it cannot later be the subject of a minor alteration inquiry.

[00:35:28] Speaker 04:
Well, let's get back to the trial court's decision.

[00:35:31] Speaker 04:
I think I heard you say that it's based

[00:35:34] Speaker 04:
The trial court's decision is based on two factors, both of which are necessary components for the trial court to conclude there's no minor alterations of inquiry allowed here.

[00:35:43] Speaker 04:
Number one, there's a specific range in the scope of the order.

[00:35:49] Speaker 04:
Number two, smaller diameter wire rod was known, and the trade court imputed that knowledge to the petitioners and to commerce

[00:36:03] Speaker 04:
for the trade court to conclude that commerce necessarily was contemplating the specific exclusion of that smaller diameter wire rod.

[00:36:13] Speaker 04:
Is that a fair reading of the trial court's decision?

[00:36:17] Speaker 04:
Well, the trial court... Can you first say yes or no?

[00:36:23] Speaker 04:
Is that a fair reading of the trial court's opinion?

[00:36:26] Speaker 04:
It had two factors.

[00:36:29] Speaker 04:
It found both factors and it needed to find both those factors in order to

[00:36:33] Speaker 04:
bar commerce from doing a minor alterations inquiry.

[00:36:36] Speaker 06:
That's a fair reading except that the court did not make any factual findings or impute knowledge.

[00:36:41] Speaker 06:
It just court basically first said commerce's original circumvention determination as it stood was unsupported by substantial evidence because commerce failed to account for the express exclusion of small diameter wire rod and its own commercial availability finding.

[00:36:58] Speaker 06:
Then on remand commerce

[00:37:00] Speaker 06:
made the decision went negative and said there is no minor alteration and the court affirmed Congress's negative remand determination as supported by substantial evidence because there was substantial evidence on the record to demonstrate that a small diamond or wire rod was excluded knowingly from the scope of the order.

[00:37:21] Speaker 03:
That second determination by Congress, they made it under protest, correct?

[00:37:25] Speaker 03:
That is correct.

[00:37:26] Speaker 03:
So they're saying we think otherwise, but you, CIT, ordered us in.

[00:37:30] Speaker 03:
Therefore, we're going to find this one.

[00:37:32] Speaker 03:
You're over your time by two minutes, and that's about how much they were over their time.

[00:37:35] Speaker 03:
I was going to give you two additional minutes.

[00:37:38] Speaker 03:
You already used them up, so thank you.

[00:37:40] Speaker 03:
OK.

[00:37:40] Speaker 03:
Thank you, Your Honors.

[00:37:43] Speaker 03:
OK.

[00:37:46] Speaker 03:
For a log, we have two minutes.

[00:37:49] Speaker 01:
Thank you very much, Your Honor.

[00:37:51] Speaker 01:
I just have a few very brief points that I would like to make to clarify where we are.

[00:37:55] Speaker 01:
First of all, there is no evidence that US producers were making 4.75 millimeter rod at the time of the investigation.

[00:38:02] Speaker 01:
Moreover, there's no evidence that the subject countries that were subject to the investigation, and in particular Mexico, any producers in those countries were making 4.75 millimeter rod.

[00:38:14] Speaker 01:
And the evidence for that is at JA 136 and JA 73 to 74.

[00:38:20] Speaker 01:
The one bit of evidence that places

[00:38:25] Speaker 01:
production, a commercial production of 4.75 millimeter rod, even close to the order, is the Japanese report, the Kawasaki report, that came out after the order was published.

[00:38:38] Speaker 01:
So it showed that in Japan this rod was being produced commercially, but the report itself came out, I think, two or three months after the order was published.

[00:38:48] Speaker 01:
Now, moving on to the trial courts,

[00:38:52] Speaker 01:
rule and essentially the rule advocated by de Ossero.

[00:38:57] Speaker 01:
The kind of reasoning that both the trial court and de Ossero use would essentially reduce minor alterations inquiries only to instances where the scope is ambiguous, where there is not a particular range or where a product was not commercially available.

[00:39:13] Speaker 01:
Now, what that would do is that would either merge the minor alteration inquiry with the later developed merchandise inquiry

[00:39:19] Speaker 01:
Or it would make the inquiry only available where the scope is ambiguous.

[00:39:25] Speaker 01:
Now this court in Target explicitly rejected that argument.

[00:39:29] Speaker 01:
It explicitly rejected the argument that anti-circumvention proceedings are only available when the scope is ambiguous.

[00:39:35] Speaker 01:
The whole point of anti-circumvention is to capture articles that fall outside the literal terms of an order.

[00:39:42] Speaker 01:
That's what we've itself recognized.

[00:39:45] Speaker 01:
And so the kind of focus that

[00:39:48] Speaker 01:
the trial court placed upon exclusion is improper in the first instance.

[00:39:53] Speaker 01:
It is certainly improper as a threshold criteria.

[00:39:57] Speaker 01:
It's nowhere to be found in the statute.

[00:39:58] Speaker 01:
It's nowhere to be found in the legislative history.

[00:40:00] Speaker 03:
Any closing thoughts?

[00:40:02] Speaker 01:
We respectfully ask that this court reverse the trial court's decision.

[00:40:07] Speaker 01:
Okay.

[00:40:07] Speaker 03:
Thank you very much.