[00:00:00] Speaker 01: 1117, Whirlpool Corporation versus the United States. [00:00:05] Speaker 01: Sir, whenever you're ready. [00:00:15] Speaker 05: Good morning, Your Honors. [00:00:17] Speaker 05: May it please the Court, Robert DeFrancisco on behalf of the AEFTC petitioners in this case. [00:00:23] Speaker 05: We believe that the lower court's decision, the CIT's decision in this case, [00:00:27] Speaker 05: did not grant commerce the proper deference in interpreting the scope in this case, did improperly apply the existing precedent, and disregarded important factual findings that commerce had made in the original determination. [00:00:39] Speaker 03: Well, at a minimum, doesn't this have to go back, even if I don't agree with you on all of that, because didn't the judge below pre-decide a factual issue before he sent it back to commerce? [00:00:52] Speaker 03: and thereby prevent commerce. [00:00:55] Speaker 03: And commerce's opinion makes it clear that we don't think we even have the authority to consider this factual issue. [00:00:59] Speaker 03: I mean, that, to me, it seems like would be a very narrow ground upon which to vacate and remand, certainly probably not the full scope of what you would like to get. [00:01:07] Speaker 03: But at a minimum, I think that seems to be a problem. [00:01:10] Speaker 05: Yes, Your Honor. [00:01:11] Speaker 05: You're referring to the fastener determination? [00:01:14] Speaker 05: Yes. [00:01:14] Speaker 05: And I was here last year in front of the court in the Meridian [00:01:20] Speaker 05: appliance handle decision, which also made the similar finding. [00:01:25] Speaker 05: Again, in that case, it's virtually the same product. [00:01:27] Speaker 05: It's an extruded appliance handle where a plastic end cap was at issue and whether it was a fastener and the same issue applied in that case, Your Honor, and you're right. [00:01:37] Speaker 05: So yes, it is a factual finding that could be remanded on that basis. [00:01:42] Speaker 01: Is there any difference between this and the Meridian case? [00:01:45] Speaker 01: I mean, why are we here even? [00:01:47] Speaker 01: If there is, in fact, no difference, and you will be controlled by the Meridian outcome. [00:01:56] Speaker 05: Well, Your Honor, in this case, the lower court went a little bit further than it went in Meridian and decided that because this appliance handle with the end cap was an assembly, the lower court decided that under the general terms of the scope, that all assemblies would be out, that assemblies are not covered by the scope. [00:02:17] Speaker 05: And that goes a little bit further than the court had gone in Meridian. [00:02:21] Speaker 05: And frankly, that narrows the scope to the point where now we start excluding a lot of things that would be covered. [00:02:28] Speaker 05: In fact, this court in the curtain wall unit, the Uwanda curtain wall unit decision, found that curtain wall units were assemblies and were subject merchandise. [00:02:37] Speaker 05: But under the lower court's decision in this case, any assembly would be out. [00:02:41] Speaker 03: You're basically saying he read subassemblies out. [00:02:44] Speaker 05: He read subassemblies out. [00:02:45] Speaker 05: He read assemblies out. [00:02:47] Speaker 05: He read the decision in a way that even facially covered assemblies that are identified in the scope, like a window frame or a door frame, that's an assembled product of at least four extrusions to create that frame, along with fasteners. [00:03:00] Speaker 05: Even those would be out. [00:03:01] Speaker 03: Does Whirlpool have another case pending in front of us now on similar issues? [00:03:07] Speaker 05: Not that I'm aware of, but you'd have to ask their counsel. [00:03:12] Speaker 02: But if I may, Your Honors, so the initial remand [00:03:17] Speaker 02: or rather the initial scope ruling made by Commerce. [00:03:22] Speaker 02: That's before us here today, isn't it? [00:03:25] Speaker 05: Correct. [00:03:25] Speaker 05: The initial scope ruling. [00:03:27] Speaker 02: So if we just affirm that, then we don't have to remand. [00:03:32] Speaker 05: Correct, Your Honor. [00:03:33] Speaker 05: And I would suggest, again, we would suggest that this court could affirm Commerce's original determination and vacate the lower court's decision and reinstate that decision. [00:03:47] Speaker 05: But if I may, so here, going to the fastener issue, the lower court reached its assembly determination exclusively by, or it had to reach its decision whether it's an assembly or not, by first determining that the end cap here was not a fastener. [00:04:06] Speaker 05: And we believe that was improper for a number of reasons. [00:04:11] Speaker 03: Did Commerce decide whether the end cap was a fastener? [00:04:14] Speaker 05: It did. [00:04:14] Speaker 05: In its decision at page 17, Commerce states that we find that the end caps described are involved in attaching the handle to the refrigerator door in a manner that allows the handle to fit tightly to the refrigerator door and release friction between the door and the handle. [00:04:30] Speaker 05: On this basis, we find that the plastic end caps are analogous to a washer, a fastener. [00:04:36] Speaker 03: Well, a washer is not a fastener. [00:04:37] Speaker 03: I mean, if I hand you a washer, it's not going to hold anything together. [00:04:41] Speaker 05: Your Honor. [00:04:42] Speaker 03: By itself, a washer does nothing. [00:04:44] Speaker 05: So it's part of a fastener. [00:04:47] Speaker 03: You don't even need it. [00:04:48] Speaker 03: You don't even need a washer to fasten anything. [00:04:49] Speaker 03: That's bull. [00:04:50] Speaker 03: You can put a screw in without a washer and it holds it together. [00:04:53] Speaker 03: You can't put a washer in and do anything with it. [00:04:54] Speaker 03: It holds nothing together. [00:04:55] Speaker 05: Washers assist the fastening, the screw with the fastener, and, Your Honor... How? [00:05:01] Speaker 03: How does the washer assist? [00:05:03] Speaker 03: In what way does it make the fastening better? [00:05:05] Speaker 05: As Commerce described, it assists in tightening that product to the other product that it's being joined to. [00:05:12] Speaker 03: Are you saying in the absence of a washer, the two things wouldn't be fastened together? [00:05:16] Speaker 05: I don't know that it would remain fastened together for a long period of time. [00:05:22] Speaker 05: So in counsel, Your Honor, in the lower court admitted, and as Commerce was looking at the schematics, it's simply not possible to attach this appliance handle to the door without that end cap. [00:05:34] Speaker 05: Without the end cap, it's not going to attach. [00:05:36] Speaker 03: But even if I might disagree, shouldn't your argument to me be this is a question of fact and commerce gets deference on those facts and that the lower court didn't give that deference and that I have to give that deference because I've got to review one to the same standard as them? [00:05:48] Speaker 03: So even if I was skeptical about whether this end cap amounted to a fastener, isn't that what your argument to me really should be? [00:05:54] Speaker 05: That's correct. [00:05:55] Speaker 05: That's correct. [00:05:56] Speaker 05: And Your Honor, just to point out, geodesic domes, which is a similar scope determination, previous scope determination, [00:06:04] Speaker 05: Commerce looked at the other fasteners that were in those domes, and it was screws, nuts, bolts, and washers. [00:06:10] Speaker 05: It was part of that kit that was in the assembly. [00:06:13] Speaker 05: But yes, you're right, Your Honor. [00:06:15] Speaker 05: The amount of deference that should be given on a factual determination here as to whether it is a fastener should have been granted to Commerce by the lower court. [00:06:23] Speaker 03: So even if I think he was right and that this isn't a fastener, that's not the question? [00:06:28] Speaker 05: Correct. [00:06:29] Speaker 03: OK, anything else? [00:06:31] Speaker 05: I do not have anything. [00:06:31] Speaker 03: I can tell we have your argument pretty well on hand. [00:06:34] Speaker 05: Thank you, Your Honor. [00:06:34] Speaker 05: I do not have any other questions. [00:06:36] Speaker 02: Let's look at the description of the three different types of handles, Type A, Type B, and Type C. Those are provided by Meridian. [00:06:47] Speaker 02: Is that correct? [00:06:49] Speaker 05: In the Meridian case, yes. [00:06:51] Speaker 05: Whirlpool didn't describe these handles as the Type A, Type B. They had two. [00:06:56] Speaker 05: One was with end caps and one without. [00:07:00] Speaker 02: And in that case, in the Meridian case, [00:07:03] Speaker 02: The type B handles, the end caps were described as the end caps are used to fasten the handle to the door. [00:07:11] Speaker 02: Do they do anything different in this case? [00:07:14] Speaker 05: No. [00:07:15] Speaker 05: In this case, as Commerce, when it looked at the schematic, Commerce evaluating the schematic came to the conclusion that without that end cap, you could not fasten the handle to the door. [00:07:24] Speaker 05: And therefore, they function the same way and reach the same conclusion. [00:07:31] Speaker 05: So if there are no more questions, Your Honor, I'll reserve the balance of my time for rebuttal. [00:07:35] Speaker ?: Thank you. [00:07:43] Speaker 00: May it please the court? [00:07:52] Speaker 00: My name is Donald Harrison. [00:07:54] Speaker 00: I'm with the law firm of Gibson, Dunn, and Crutcher. [00:07:56] Speaker 00: I'm appearing here on behalf of Whirlpool. [00:07:59] Speaker 00: At the outset, I'd just like to make [00:08:01] Speaker 00: clear what was decided by the lower court, by Judge Stansu and his decision, and then clarify how reasonable and correct that decision was, which the Commerce Department and the remand re-determination did not review, even though Judge Stansu gave them an opportunity to do so. [00:08:22] Speaker 00: The issue that he raised with respect to the general scope language, and I'd like, if I could, to just draw your attention to the [00:08:30] Speaker 00: the general scope language that he reviewed. [00:08:33] Speaker 00: General scope language is included in the appendix. [00:08:36] Speaker 00: If you have the appendix, it's in the redetermination by the Commerce Department there, April 15, 2016 redetermination. [00:08:49] Speaker 00: And it's in the appendix beginning on page 23 and going for several pages thereafter. [00:08:56] Speaker 00: And you have pointed out, [00:09:00] Speaker 00: in Deferco and other cases that the cornerstone and the linchpin and the predicate for the analysis in a scope case is the language of the order. [00:09:11] Speaker 00: And that you have to look to see that the language of the order reasonably describe the product at issue. [00:09:17] Speaker 00: OK, let's look at there are five paragraphs in this. [00:09:20] Speaker 00: The first paragraph in the scope of the order at the top of the page there indicate, the merchandise covered by the order is aluminum extrusions [00:09:28] Speaker 00: which are shapes and forms produced by an extrusion process. [00:09:33] Speaker 00: So that tells us that the aluminum extrusions are the items that are included in the scope. [00:09:39] Speaker 00: It doesn't say anything about assembled items in that paragraph. [00:09:43] Speaker 00: Going down to the second paragraph, aluminum extrusions are produced and imported in a wide variety of shapes and forms. [00:09:51] Speaker 00: Again, it's describing shapes and forms, nothing more than that. [00:09:55] Speaker 00: Then we turn the page in their analysis in the scope language. [00:10:01] Speaker 00: Paragraph three, aluminum extrusions are produced and imported in a variety of finishes and types of fabrication. [00:10:09] Speaker 00: And it describes different coatings. [00:10:11] Speaker 00: It describes some of the items that are used in the whirlpool, that are produced to produce the whirlpool extrusions. [00:10:18] Speaker 00: They're brushed, buffed, polished, and anodized. [00:10:21] Speaker 00: And then getting down, it says aluminum extrusions may also be fabricated. [00:10:25] Speaker 00: What does it say about fabrication? [00:10:28] Speaker 00: Prepared for assembly. [00:10:30] Speaker 00: There's no language here about assembled. [00:10:32] Speaker 00: Prepared for assembled, and then they may be finished. [00:10:37] Speaker 00: So there's nothing here about assemblies in this general scope language that describes what's covered by the product. [00:10:44] Speaker 00: Paragraph four, subject limit exclusions may be described at the time of importation as parts for final finished products. [00:10:52] Speaker 00: Again, they're parts. [00:10:54] Speaker 00: They can be. [00:10:54] Speaker 00: They're things like. [00:10:56] Speaker 00: curtain walls and door frames and so forth part doesn't expand the scope beyond the extrusions that we're talking about. [00:11:07] Speaker 00: And again, it says such parts that otherwise meet the definition of aluminum extrusions. [00:11:12] Speaker 00: Again, it's making clear that this is not expanding the scope beyond those that's otherwise described in the language. [00:11:20] Speaker 00: Then we have the paragraph or the sentence that's been focused on. [00:11:27] Speaker 00: The scope includes the aluminum extrusion components that are attached by means of welding or fasteners to form sub-assemblies. [00:11:35] Speaker 03: What page are you on? [00:11:36] Speaker 00: I'm sorry. [00:11:37] Speaker 00: I'm on page 24. [00:11:39] Speaker 00: It starts on 23. [00:11:40] Speaker 00: I just gave the first two paragraphs on 23. [00:11:44] Speaker 00: Paragraph 3 is on 24. [00:11:46] Speaker 00: Paragraph 5. [00:11:47] Speaker 03: So you're right in the middle on 24. [00:11:48] Speaker 00: I'm in the middle of that subject. [00:11:50] Speaker 00: Aluminum extrusion may be described at the time of importation as parts. [00:11:55] Speaker 00: The next sentence, the third sentence, the scope includes the limited extrusion components that are attached. [00:12:02] Speaker 00: I'd like to point out two important points here. [00:12:07] Speaker 00: It describes what is included here by welding interface to form sub-assemblies, i.e. [00:12:13] Speaker 00: that means I'm describing what a sub-assembly is, a partially assembled merchandise. [00:12:19] Speaker 00: Partially assembled merchandise. [00:12:22] Speaker 00: And then another point, the last sentence of that says, [00:12:25] Speaker 00: The scope does not include the non-aluminum extrusion components of sub-assemblies. [00:12:31] Speaker 00: That means if I have a sub-assembly, even if it's partially assembled product, the scope does not include whatever non-aluminum components are included in that sub-assembly. [00:12:45] Speaker 00: OK, that's the general scope language. [00:12:49] Speaker 00: It means in order for something to be described by this scope, it has to fit in one of those five paragraphs. [00:12:56] Speaker 00: Now what we've explained, Judge Stansley explained, that the assemblies, the aluminum extruded handle assemblies here, do not fit within that rubric. [00:13:08] Speaker 00: And what are those? [00:13:09] Speaker 00: Well, those are, as we've explained in the scope request, as well as in the brief to this court, these include assemblies of nine components. [00:13:19] Speaker 00: There's obviously the extruded aluminum component that I've described. [00:13:23] Speaker 00: But in addition to that, there are [00:13:25] Speaker 00: Two of these end caps we've talked about, they're fastened in each case by two screws and there are two clips. [00:13:32] Speaker 00: Now what about these aluminum, these extruded plastic components? [00:13:38] Speaker 00: They are, they account for a very substantial proportion of the cost of producing one of these handle assemblies. [00:13:46] Speaker 00: Over 25% of the cost is accounted for by these. [00:13:50] Speaker 00: They're also specifically designed for these particular [00:13:54] Speaker 00: each particular aluminum handle. [00:13:59] Speaker 00: When they're entered separately, they may be entered separately. [00:14:02] Speaker 00: When they're entered separately, they're entered not as fasteners as bolts or washers or anything else. [00:14:08] Speaker 00: They're entered as the parts of the appliance with which they're used. [00:14:13] Speaker 00: So if they come in for a handle for a refrigerator, they're classified as refrigerator parts. [00:14:22] Speaker 00: So these by no means are the types of [00:14:24] Speaker 00: We'll get to the Fassers point in a moment. [00:14:27] Speaker 00: But my point is, this analysis that I'm describing, that the Council might learn, the Council has described as the Fassers being essential to the discussion on the general scope language simply is not the case. [00:14:38] Speaker 00: I've gone through each of the five paragraphs that describe the general scope that would have to be met if this product is going to be included, and none of those, even the sub-assemblies, it's as [00:14:51] Speaker 00: partially assembled. [00:14:52] Speaker 00: These are completely and fully assembled. [00:14:54] Speaker 00: And the Commerce Department made a finding on that. [00:14:57] Speaker 00: And no one has disputed that, that they're fully assembled. [00:15:02] Speaker 00: And the other point is that even if they weren't, and of course they are, but even if they weren't fully assembled, they're partially assembled, you'd have to take out the value of the plastic components there. [00:15:13] Speaker 00: Because that's what the last sentence of that paragraph expressly says. [00:15:17] Speaker 00: It does not include. [00:15:18] Speaker 00: And indeed when, well, this [00:15:20] Speaker 00: When we've entered these products, the customs has agreed that they exclude the cost of those components on the value that's included in the value of the entry for purposes of anti-dumping deposits. [00:15:35] Speaker 00: So that's the general scope language. [00:15:37] Speaker 00: Now, let's get to the issue of the fasteners. [00:15:43] Speaker 00: Point one I want to make is that we argued that the products were not covered by the [00:15:49] Speaker 00: provision has the faster. [00:15:51] Speaker 00: I know you've read the briefs. [00:15:52] Speaker 00: You know there's two. [00:15:54] Speaker 00: And if you look at it, direct your attention to the following page, where we've got on page 0025, this is where we have the two exclusions. [00:16:08] Speaker 00: So this says that even if the products are covered by the general scope language, there are two exclusions that could apply. [00:16:15] Speaker 00: The first one says the scope excludes [00:16:19] Speaker 00: finished merchandise containing lumen extrusions as parts that are fully and permanently assembled and completed at the time of entry, such as finished windows with glass, doors with glass or vinyl, and so forth. [00:16:31] Speaker 00: So what we've explained is that the Whirlpool appliance handle assemblies meet each of those requirements. [00:16:40] Speaker 00: They're containing lumen extrusions as parts. [00:16:42] Speaker 00: As I mentioned, there are nine components, including the two plastic end caps as well as the extruded handle. [00:16:49] Speaker 00: They're fully and permanently assembled, and no one has denied that. [00:16:53] Speaker 00: They're completely assembled and completed at the time of entry, ready for use. [00:16:58] Speaker 00: And they're comparable to finished windows with glass or doors with glass or vinyl. [00:17:03] Speaker 00: In each case, which you have a part, and it needs to be used with something else. [00:17:08] Speaker 00: The handle goes on to the appliance, just as the window would go into the building. [00:17:14] Speaker 00: And at one point, the Commerce Department took the view that in order to meet the finished [00:17:18] Speaker 00: Merchandise exclusion, you have to have everything. [00:17:20] Speaker 00: They made a decision that when there was an awning mechanism, you have to have the awning along with that. [00:17:27] Speaker 02: But they changed their... So it's your view that the handles along with the end caps, they constitute a finished good once they're assembled? [00:17:38] Speaker 00: I will be just... I hate to be very precise about that. [00:17:42] Speaker 00: Finished merchandise, [00:17:44] Speaker 00: It's a little confusing because the first sentence of the scope is finished merchandise. [00:17:49] Speaker 00: The term finished goods is included in a quite separate exclusion for a finished goods kit. [00:17:57] Speaker 00: This is not a finished goods kit. [00:18:00] Speaker 00: This is fully assembled. [00:18:03] Speaker 00: But I'd like to mention something about this issue about the application of the finished goods kit. [00:18:11] Speaker 00: I know that counsel has made much of the fact that there's a fascist exception in this conclusion. [00:18:17] Speaker 00: But let's look at that exception for a moment. [00:18:21] Speaker 02: Excuse me. [00:18:21] Speaker 02: I just want to be clear on something. [00:18:23] Speaker 02: So before we get to the finished goods kit, we have finished merchandise. [00:18:29] Speaker 02: Is that what you're arguing? [00:18:31] Speaker 02: Yes. [00:18:32] Speaker 02: Our argument is completely. [00:18:33] Speaker 02: Your argument is that the handles with the end caps constitute a finished merchandise? [00:18:41] Speaker 00: That's right. [00:18:42] Speaker 00: Our position is the general scope language does not cover it, for the reasons that I just summarized as just stands ahead. [00:18:49] Speaker 00: But even if the general language did cover this product, it's excluded expressly by the finished merchandise exclusion, which is express and has these requirements, containing aluminum extrusions as parts. [00:19:03] Speaker 00: Yes, it does. [00:19:04] Speaker 00: Fully and permanently assembled and completed. [00:19:06] Speaker 00: Yes, it is. [00:19:08] Speaker 00: is comparable to finished windows with glass or doors with glass or vinyl, which include aluminum extruded components plus non-aluminum extruded components. [00:19:19] Speaker 03: I don't understand. [00:19:20] Speaker 03: You say these are finished merchandise, and you say they're fully assembled. [00:19:24] Speaker 03: So how is it that the washers, which connect the handle to a door, are in place at importation when there's no door to actually connect them to? [00:19:35] Speaker 00: Let me say these are. [00:19:36] Speaker 00: Let's look at that. [00:19:38] Speaker 00: analysis that was done for a while. [00:19:40] Speaker 03: I'm asking you a question. [00:19:41] Speaker 03: I want to look at an analysis. [00:19:42] Speaker 00: Okay. [00:19:42] Speaker 00: I'm sorry? [00:19:42] Speaker 03: To answer the question. [00:19:44] Speaker 03: How are the washers assembled to the handle at importation when the purpose of them is to join them to the door and there's no door at importation? [00:19:53] Speaker 03: So how is that a fully assembled sub-assembly or finished good or whatever? [00:19:59] Speaker 00: What is fully assembled is the door handle. [00:20:03] Speaker 00: And the Commerce Department has expressly taken the view that in a situation like this where you have to [00:20:08] Speaker 00: use it with something else, that you don't need that something else as imported. [00:20:14] Speaker 00: In other words, the finished merchandise here is the door handle. [00:20:17] Speaker 00: It's a fully finished product that is fully assembled. [00:20:22] Speaker 03: I'm confused. [00:20:23] Speaker 03: What's imported is the door handle and a number of other parts, including the end caps. [00:20:28] Speaker 00: No. [00:20:29] Speaker 00: I'm sorry. [00:20:30] Speaker 03: The end caps are not imported? [00:20:31] Speaker 00: I'm sorry. [00:20:32] Speaker 00: The end caps are assembled onto this handle assembly. [00:20:39] Speaker 00: Before importation or after? [00:20:41] Speaker 00: Before importation. [00:20:42] Speaker 00: In other words, there's a handle assembly. [00:20:45] Speaker 02: Let me see if I can direct you to... The end caps are assembled to the handles before importation? [00:20:51] Speaker 00: Yes, that's right. [00:20:52] Speaker 02: Are there washers and screws? [00:20:55] Speaker 00: There are no washers here. [00:20:56] Speaker 00: There are no washers. [00:20:58] Speaker 00: The end caps, this is... The end caps are faster. [00:21:01] Speaker 03: Some have said the end caps operated like washers. [00:21:03] Speaker 03: Commerce said that in the original determination, right? [00:21:06] Speaker 00: Something like that? [00:21:08] Speaker 00: Commerce said that in their interpretation. [00:21:11] Speaker 00: I'd like to direct your attention to that. [00:21:15] Speaker 00: If you go, and I have more to say about the finished goods kit if I could, but if I can just answer your or respond to your issue. [00:21:25] Speaker 00: If you go to the appendix of page 340, this is the commerce's original determination, which [00:21:33] Speaker 00: Oh, you're looking at that. [00:21:35] Speaker 00: I'll just point out, this was not, Congress expressly did not reconsider this issue, as the judge said they could have, but they expressly did not in their redetermination. [00:21:46] Speaker 00: They said, it's moot, because we've already concluded it's not covered by the general scope language. [00:21:51] Speaker 00: So the issue of whether they're finished merchandise is moot. [00:21:54] Speaker 00: We're not going to look at that issue again. [00:21:57] Speaker 00: But this is the page if you've got it. [00:21:58] Speaker 00: This is where their so-called analysis on this issue. [00:22:04] Speaker 00: And the paragraph that starts, based on the information provided by Whirlpool, we find that the handles at issue are comprised entirely of extruded aluminum and fasteners, i.e. [00:22:18] Speaker 00: plastic end caps. [00:22:21] Speaker 00: Therefore, we find they do not meet the first test for determining whether good is a finished good, geodesic domes. [00:22:28] Speaker 00: That was a kid's case. [00:22:29] Speaker 00: It had nothing to do with finished merchandise. [00:22:32] Speaker 00: And I'll get to a moment here. [00:22:34] Speaker 00: But basically, they say, OK, well, and you point out earlier that a fastener, even if the general definite is something that attaches something together, this end cap is at the end of the appliance handle assembly. [00:22:52] Speaker 00: And it is attached to the door by means of a bolt that's not included with the importation. [00:23:01] Speaker 00: So the assembly is not attached to a door at the time it's imported. [00:23:09] Speaker 00: It's imported as a complete handle assembly. [00:23:11] Speaker 02: And the example of the window frames, those window frames and the glass come in attached, right? [00:23:17] Speaker 02: I mean, it's completed. [00:23:18] Speaker 00: Well, but it's a part of a building. [00:23:21] Speaker 00: In other words, the handle assembly is fully complete. [00:23:26] Speaker 00: But it needs to be attached to something to be useful, of course. [00:23:30] Speaker 03: Is there a picture? [00:23:31] Speaker 03: I mean, it talks in the opinion about how you submitted pictures. [00:23:33] Speaker 03: I'd love to see a picture of what this thing looks like when it's included. [00:23:38] Speaker 00: If you go to, I confess this is not [00:23:55] Speaker 00: a picture that's as good as it should be. [00:23:58] Speaker 00: But if you go to appendix page 132. [00:24:00] Speaker 03: So it's hard for me to read these little things. [00:24:13] Speaker 03: Where are the plastic end caps? [00:24:15] Speaker 00: See that bowed section there, that's the extruded aluminum. [00:24:18] Speaker 00: The end caps are the portions that are at the bottom of that. [00:24:21] Speaker 00: Either end you see, see where [00:24:25] Speaker 00: plastic end cap. [00:24:26] Speaker 00: And you can see these are not simple items. [00:24:29] Speaker 00: They're, as I say, they account for more than 25% of the total cost of making this assembly. [00:24:36] Speaker 00: And there they are at the end. [00:24:37] Speaker 00: And they're attached to this aluminum extruded component by means of the two screws. [00:24:46] Speaker 03: They're attached by means of two screws. [00:24:48] Speaker 03: Are they attached to the handle? [00:24:50] Speaker 00: Yes, to the handle. [00:24:51] Speaker 00: No, they're attached to the [00:24:53] Speaker 00: And if you imagine this extruded aluminum section here, and if you turn it over, then you'd see that there were two screws in that extruded component that protrude through that, through the clips. [00:25:08] Speaker 00: And that is used to attach these plastic end caps to the handle assembly. [00:25:15] Speaker 00: So it's complete at the time that it's entered. [00:25:20] Speaker 00: What the Commerce Department said is not that they're fasteners. [00:25:25] Speaker 00: They didn't look at, they didn't analyze, OK, what is a fastener? [00:25:28] Speaker 00: How do we decide what a fastener is? [00:25:30] Speaker 00: As you point out, dictionary definitions to find a fastener is something that attaches something. [00:25:35] Speaker 00: Well, these don't attach something. [00:25:36] Speaker 00: They are attached to something. [00:25:38] Speaker 03: No, but they also attach something. [00:25:40] Speaker 03: I mean, the only point, you don't need the plastic pieces, but for the fact that they are going to operate to attach this handle to a door. [00:25:49] Speaker 00: There are several functions. [00:25:50] Speaker 00: They're aesthetic. [00:25:52] Speaker 00: I've talked to the people at Whirlpool, and they sometimes say, we design a handle that we want for aesthetic purposes. [00:25:59] Speaker 00: We want to have a hand cap. [00:26:01] Speaker 00: Sometimes they bring them in without the end cap. [00:26:04] Speaker 03: There's no evidence of this in the record. [00:26:06] Speaker 03: Don't tell me stuff that's not in the record. [00:26:08] Speaker 00: The second thing is, well, what is in the record is that they're aesthetic. [00:26:11] Speaker 03: Because I wouldn't think they're aesthetic. [00:26:12] Speaker 03: And so if we're going to go off record, then how about I start going off record too? [00:26:16] Speaker 03: We don't want to do that. [00:26:18] Speaker 03: You don't win if I go off right now. [00:26:19] Speaker 00: Well, in any event, what I want to say was that these don't attach. [00:26:25] Speaker 00: One thing you can say is that perhaps they're something that is attached to, through a bolt. [00:26:31] Speaker 00: For example, one point that Judge Sansom made is, if you imagine a broom, a broom that might have some threads in it, and it has an aluminum extruded component at one end and at the other end, [00:26:46] Speaker 00: And it's screwed into it. [00:26:48] Speaker 00: It's used to attach. [00:26:50] Speaker 00: But you would never say that that's a fastener. [00:26:53] Speaker 03: But one point is that the Commerce Department... Did Judge Stansu find these are not fasteners? [00:27:00] Speaker 00: Yes. [00:27:01] Speaker 00: He concluded that they could not conceivably be called fasteners. [00:27:04] Speaker 00: Because he said, look at the analysis. [00:27:06] Speaker 00: They're analogous to a... A washer is defined as a flat, thin ring or a perforated plate. [00:27:17] Speaker 00: used to ensure tightness. [00:27:18] Speaker 00: These plainly aren't flat rings or perforated plates. [00:27:22] Speaker 00: And again, as you point out, washers are not fasteners. [00:27:25] Speaker 00: They're not used to fasten something. [00:27:27] Speaker 00: They might facilitate it, but they're not fasteners. [00:27:30] Speaker 02: Are the washers assembled into the handles prior to importation? [00:27:35] Speaker 00: I'm sorry? [00:27:36] Speaker 02: Are the washers assembled into the handles prior to importation? [00:27:39] Speaker 00: Well, again, there are no washers, but the end caps are assembled into the handle assemblies, yes. [00:27:47] Speaker 00: the end caps are permanently assembled by means of those screws that I mentioned. [00:27:55] Speaker 03: I don't know, I'm having a hard time thinking that Judge Dan Suh didn't, I'm having a hard time deciding whether he gave proper deference to commerce's determination that these were fasteners. [00:28:09] Speaker 03: Because again, it's not my determination to make, it's theirs and that's a fact question that I have to review for substantial [00:28:14] Speaker 00: Well, I just want to make two points. [00:28:17] Speaker 00: One is that what he said was, look at the analysis they have. [00:28:22] Speaker 00: When you're trying to decide whether something is encompassed by some term, you say, well, let's define the term. [00:28:27] Speaker 00: There's no discussion here of the term. [00:28:29] Speaker 00: Then they say it's analogous to a washer. [00:28:32] Speaker 00: Well, there are many things that ensure tightness like a wrench. [00:28:37] Speaker 00: They don't say that's a washer or release friction like a bearing, but that's not a washer. [00:28:43] Speaker 00: So he didn't give any deference. [00:28:45] Speaker 00: The other thing I'd like to point out, and I know you've read the briefs, is that there is no fastener exception in the language of the Finnish merchandise exclusion. [00:28:57] Speaker 00: If you go back to the appendix page 25, the page that we were just looking at before, I just want to emphasize this point. [00:29:08] Speaker 00: Because we're talking about the fastens, but the fastener [00:29:12] Speaker 00: If you look at that paragraph, the scope also includes finished merchandise containing aluminum exclusions as part, and so forth. [00:29:20] Speaker 00: We've talked about that. [00:29:21] Speaker 00: Then look at the next sentence there. [00:29:24] Speaker 00: The scope also includes finished goods containing aluminum exclusions that are entered unassembled in a finished goods kit. [00:29:30] Speaker 00: OK, now we're talking about an also, another exception. [00:29:35] Speaker 00: And it describes what's necessary. [00:29:38] Speaker 01: So if we agree with you on that point, so your point, just because we're running out of time, so I'm just trying to move it forward. [00:29:44] Speaker 01: Your point is that the exclusion to the exclusion of fasteners in the bottom part of that paragraph is limited to finished goods kit and not to finished merchandise. [00:29:56] Speaker 01: How does that affect the analysis here? [00:29:59] Speaker 00: Because what you say is, since this satisfies the requirements of the finished merchandise, [00:30:04] Speaker 00: There's no, we don't think it's a faster. [00:30:07] Speaker 00: I think it's plainly something that's 20. [00:30:09] Speaker 03: But it doesn't matter whether it's a faster. [00:30:11] Speaker 00: Right. [00:30:12] Speaker 00: And look what it says. [00:30:13] Speaker 00: An imported product will not be considered a finished goods kit and therefore excluded merely by including. [00:30:21] Speaker 00: In other words, they were very clear. [00:30:22] Speaker 00: I mean, there's a general principle that if you have language in one provision and it's not included in another provision, that you wouldn't construe the first provision. [00:30:31] Speaker 02: If the end caps are not [00:30:34] Speaker 02: part of the, they're not fasteners, then what are they? [00:30:39] Speaker 00: They're a component of the handle assembly. [00:30:44] Speaker 02: For what purpose, a component? [00:30:46] Speaker 02: Well, I don't want to get off the... But the court did find and review evidence in this regard, right? [00:30:52] Speaker 00: I think what it concluded was that the, I will say what the court didn't substitute a judgment for that, what it did says that your analysis on this issue, even assuming [00:31:03] Speaker 00: that the faster is relevant is faulty. [00:31:06] Speaker 00: You didn't define the term faster. [00:31:08] Speaker 00: You didn't analyze whether this has fastening functions. [00:31:12] Speaker 00: And so we can't. [00:31:14] Speaker 02: When the handle attaches to the door, what part of the handle actually touches the door? [00:31:22] Speaker 02: The end caps? [00:31:23] Speaker 02: Yes, the end caps are the ones that... So there's no other part of the handle that touches the door. [00:31:29] Speaker 00: Yeah, and that's one of the functions. [00:31:31] Speaker 02: So the end caps hold [00:31:33] Speaker 02: the handle to the door. [00:31:35] Speaker 00: The end caps are used as, when you're attaching two things, in other words, when you're attaching whatever, you have a fastener that attaches two things. [00:31:45] Speaker 02: The end caps attach the handle to the door. [00:31:50] Speaker 00: In other words, when you have two items that are attached, right? [00:31:53] Speaker 02: And that's why commerce found them to be fasteners. [00:31:57] Speaker 00: Well, then you could say that the aluminum extruded item [00:32:01] Speaker 00: without the end caps is a fastener, because it's attached to the door in the same way that the handle of the assembly is attached to it. [00:32:07] Speaker 02: Well, they go pre-drilled with a hole in it. [00:32:09] Speaker 02: And there's some of these handles, as we see in some of the other cases, come with a bolt or a screw and washers. [00:32:18] Speaker 02: And Commerce found that those are fasteners. [00:32:24] Speaker 00: You mean the Meridian Products decision, you mean? [00:32:27] Speaker 00: Yeah. [00:32:28] Speaker 00: Well, that is on appeal here as well. [00:32:32] Speaker 00: And the court below determined that they were not. [00:32:35] Speaker 02: And they cite meridian products in this case as well. [00:32:39] Speaker 02: They cite their decision, their finding. [00:32:42] Speaker 00: Yes. [00:32:43] Speaker 00: Well, one thing I'd say is that the fasteners issue is only relevant if you determine that the [00:32:56] Speaker 00: language in the finished goods kit exclusion with respect to fasteners, that that should be interpreted to mean that fasteners exception also applies in the finished merchandising. [00:33:08] Speaker 01: Can I take you back to a point that I think Judge Moore may have alluded to earlier, which is the exclusion for finished merchandise talks about finished windows with glass, finished doors, picture frames, sort of [00:33:24] Speaker 01: the ultimate product that's going to be used. [00:33:27] Speaker 01: So how does what's going on here qualify for that? [00:33:31] Speaker 01: Because this was just the handle that we're talking about, right? [00:33:34] Speaker 01: Not the refrigerator, not the refrigerator door. [00:33:38] Speaker 01: So if we're trying to place this case mounted onto this language, this exclusion language, how does that work? [00:33:47] Speaker 00: Let me say two things about that. [00:33:49] Speaker 00: One is a window with glass serves no purpose. [00:33:53] Speaker 00: other than unless it's attached to a building. [00:33:56] Speaker 00: In other words, you can't use a window with glass unless it's a building part, just in the same way that a handle is a refrigerator part. [00:34:05] Speaker 01: Well, how do we know that? [00:34:05] Speaker 01: It says finished windows. [00:34:08] Speaker 01: It says doors with glass. [00:34:10] Speaker 01: So at least there's a product there to which these pieces belong. [00:34:16] Speaker 01: And here, that product would seem to be the refrigerator or the refrigerated door. [00:34:21] Speaker 00: The only thing I'd say is that [00:34:22] Speaker 00: The Commerce Department has expressly decided against that view in this. [00:34:30] Speaker 00: We cited in our brief a case involving rubbermaid, where the issue with rubbermaid was whether they, when you included, I'll just go on page, where [00:34:51] Speaker 00: They imported items that did not have mop appliances that didn't include the mop head. [00:34:57] Speaker 00: And the question was, does that mean that it's not, originally the Commerce Department took the view that you needed the mop head. [00:35:03] Speaker 00: But on page 47 of our brief, if you have that here, we cite the opinion of the Commerce Department in the remand in the Rubbermaid case. [00:35:19] Speaker 03: I have one last question that I want to ask. [00:35:21] Speaker 03: Why shouldn't this go back down on the sub-assembly point? [00:35:26] Speaker 03: Trust me, I totally understand your statutory interpretation argument about why the fast mirror exception applies only to finished good kits and has no bearing on finished merchandise. [00:35:37] Speaker 03: I understand that. [00:35:38] Speaker 03: You've articulated it well, and I've got it down. [00:35:41] Speaker 03: My question, though, is apart from that, commerce didn't get to decide whether this was finished merchandise [00:35:48] Speaker 03: or partially assembled merchandise, i.e. [00:35:51] Speaker 03: the sub-assembly point, I feel like Judge Stansu may have overstepped his bounds by making that factual determination in the first instance and preventing them, at least they felt they were prevented, from looking at that issue on remand. [00:36:06] Speaker 03: And maybe you have a clear idea of how it would have come out, but it's a fact question for commerce to determine, and Stansu may have overstepped his bounds by doing that in the first instance. [00:36:16] Speaker 00: The only thing I'll say, Judge Moore, is that I think he gave them plenty of opportunity to revisit that. [00:36:23] Speaker 00: He raised the issue. [00:36:24] Speaker 00: He said they didn't address this at all. [00:36:27] Speaker 03: His language seems pretty strong to me. [00:36:29] Speaker 00: I agree. [00:36:31] Speaker 00: He said they didn't include it. [00:36:33] Speaker 00: And maybe it's no doubt apparent why they didn't include it, because this is not partially assembled merchandise. [00:36:40] Speaker 00: But I honestly believe they could have revisited that issue. [00:36:45] Speaker 00: But they did not. [00:36:46] Speaker 03: They didn't think they could. [00:36:47] Speaker 03: Their opinion makes it clear they didn't think that was available to them. [00:36:51] Speaker 03: And his opinion is strong enough that I think their interpretation is right. [00:36:55] Speaker 00: They may have taken that view. [00:36:59] Speaker 03: But you would agree, isn't that a fact question, whether this is partially assembled merchandise or finished merchandise? [00:37:06] Speaker 00: Yeah, I think it's one of those things that's a combination of a legal issue and a factual issue. [00:37:11] Speaker 00: Legally, you have to decide [00:37:12] Speaker 00: what the terms mean, and then factually have to decide, given what the terms mean, is this in or without the terms. [00:37:20] Speaker 00: And certainly, whether this would be partially assembled merchandise has a factual character. [00:37:31] Speaker 02: But that's not your argument, is it? [00:37:33] Speaker 00: My argument is that what they say is two things. [00:37:39] Speaker 00: One, as I've said, I think [00:37:42] Speaker 00: You're right. [00:37:43] Speaker 00: It's a factual issue. [00:37:43] Speaker 00: Is it partially assembled merchandise? [00:37:45] Speaker 00: I say, no, it's not partially assembled. [00:37:47] Speaker 00: It's fully assembled, which I think Judge Sansu agreed. [00:37:50] Speaker 00: The other thing I'd say, just to reiterate the point, is that even if you thought it was included within that, the last sentence of that states expressly that this does not include the non-aluminum extruded components of subassemblies. [00:38:05] Speaker 00: So even if that was the case, as I mentioned, these end caps account for over 25% of the value [00:38:12] Speaker 00: You'd have to exclude that from coverage as not being applied. [00:38:16] Speaker 00: I think that if you read this carefully, you'll see they meant to include extrusions. [00:38:21] Speaker 00: Even when they said a sub-assembly is the only language that was something other than extrusion. [00:38:26] Speaker 00: And there, they were careful to say that if there are non-extruded components in that sub-assembly, they're not covered by the order. [00:38:34] Speaker 03: You've made your points very well. [00:38:35] Speaker 03: If everybody else is ready, too, we should hear from the other side, because I'd like to hear his response. [00:38:56] Speaker 03: I mean, it seems like opposing counsel is right. [00:38:59] Speaker 03: Under a statutory interpretation standpoint, whether these are fasteners is almost irrelevant because that fastener exception exists for finished goods kits and not for finished merchandise. [00:39:07] Speaker 03: Do you have any response to that? [00:39:09] Speaker 03: And if this is finished merchandise, if that's the category it falls into, the fasteners are irrelevant. [00:39:14] Speaker 05: Yes, Your Honor. [00:39:14] Speaker 05: So to go directly to that point, their interpretation of finished merchandise versus finished goods kits, if you interpreted the scope that way, would lead to two completely inconsistent [00:39:25] Speaker 05: interpretations of the scope, and you would be excluding products that are facially covered by the scope. [00:39:30] Speaker 05: For example, in the scope where it talks about parts for final finished products, it identifies what are assemblies. [00:39:40] Speaker 05: Window frames, door frames, solar panels, and curtain walls, and furniture. [00:39:47] Speaker 05: That window frame, if it were, there's four extruded parts of the window frame, if it's imported as a window frame that it's assembled, [00:39:54] Speaker 05: It means there's fasteners in there. [00:39:56] Speaker 05: That's facially covered. [00:39:58] Speaker 05: Yet, if you imported that window frame unassembled with the fasteners, it would be potential. [00:40:06] Speaker 03: So if you interpret. [00:40:08] Speaker 03: But that's exactly the point. [00:40:09] Speaker 03: The scope expressly delineates between things that are assembled before importation and things that are not assembled before importation. [00:40:14] Speaker 05: But if this is assembled with a fastener, if the end cap is a fastener and the fastener is attached, under his interpretation, that's excluded. [00:40:24] Speaker 05: If it's assembled unattached, it's included. [00:40:27] Speaker 05: It's exactly the opposite of the way this reads. [00:40:30] Speaker 05: If you determine that the end cap is not a fastener, then potentially he may have a point. [00:40:37] Speaker 05: But if you determine that the end cap is a fastener, then whether it's attached at the time of importation or not should be irrelevant. [00:40:43] Speaker 05: Because those window frames are attached with fasteners when they came in, and they're covered. [00:40:48] Speaker 03: I don't know. [00:40:48] Speaker 03: The scope language looks pretty clear to me. [00:40:51] Speaker 03: And we do a lot of statutory interpretation up here. [00:40:54] Speaker 03: And we don't generally read exclusions from one section into another section. [00:40:58] Speaker 03: And that's what you're asking me to do. [00:41:00] Speaker 03: And you're saying that logic should cause me to do that. [00:41:03] Speaker 03: But I don't deviate from language that other people be outside the functions of me as a judge to say, oh, well, you messed up. [00:41:11] Speaker 03: This exclusion ought to apply to both sections. [00:41:13] Speaker 05: Commerce has interpreted those provisions in order to be consistent. [00:41:18] Speaker 05: The mere inclusion of fasteners by themselves would not take an assembled product out. [00:41:24] Speaker 05: Your honor, in a case that this court decided in the curtain wall unit case, the court looked and said, assembled aluminum frame units, sometimes pre-glazed with glass, otherwise meet the physical description of subject merchandise. [00:41:38] Speaker 05: So it was a part of the curtain wall. [00:41:40] Speaker 05: It's a unit where it's assembled together, which means it includes fasteners and other parts. [00:41:45] Speaker 05: And it was still subject merchandise. [00:41:47] Speaker 05: If you had a product that had only fasteners and those fasteners were attached, [00:41:52] Speaker 05: Under his interpretation, if anything's attached to it and it's assembled, it's out. [00:41:56] Speaker 05: So even the handles that they imported without an end cap that came in with just the screws, if they put the screws into the handle, now it's assembled and it comes in, now it's out. [00:42:06] Speaker 05: Whereas facially, that's a covered product. [00:42:09] Speaker 05: It's an extruded aluminum part. [00:42:11] Speaker 05: It's a handle that's part of the appliance door that's facially covered merchandise. [00:42:16] Speaker 05: It fits the scope definition, and it should be covered. [00:42:20] Speaker 05: So these two. [00:42:21] Speaker 03: All right. [00:42:22] Speaker 03: I don't think I agree with you on this point. [00:42:24] Speaker 03: So why don't we get to the only point that I thought I did agree with you on, but I became very convinced by the appellee's argument. [00:42:29] Speaker 03: So I want you to address it head on, which is, do we need to send this back for commerce to decide in the first instance whether this is finished merchandise or partially assembled merchandise? [00:42:38] Speaker 03: And at first, I came in here thinking the answer to that was yes. [00:42:41] Speaker 03: I thought Judge Stansu overstepped his bounds by taking the sub-assembly question, which is a question of fact, [00:42:46] Speaker 03: away from commerce, and they clearly, I interpret their opinion on remand as believing they didn't have the authority to reach that factual question either, that it had been decided for them. [00:42:57] Speaker 03: So that's where I came in, and that was where I came in thinking that maybe this was a vacated remand. [00:43:02] Speaker 03: But here's the thing, now that I've seen the pictures of this thing coming in, I don't know how anybody could decide this was partially assembled merchandise. [00:43:07] Speaker 03: I thought the plastic end caps and all the other stuff was in a little baggie. [00:43:11] Speaker 03: You know, like you buy something from Ikea or Pottery Barn, right, and you get pieces and bags, and you gotta mash it up, [00:43:16] Speaker 03: I didn't appreciate that this thing came in completely and utterly connected, and that the only thing left to do was to literally put it on the door. [00:43:24] Speaker 03: So how could this ever fall within the partially assembled merchandise exception given the state of the facts of this record? [00:43:32] Speaker 03: So it might be a fact question, but if no facts are in dispute about how these things come in, there's not really a reason to send it back. [00:43:39] Speaker 03: I'm trying to just lay it all out there very clearly for you. [00:43:42] Speaker 03: You know exactly where I am, and you can address it. [00:43:45] Speaker 05: So I think you're right in the regard that Judge Stansu did foreclose Commerce's ability of looking at partially assembled or some assembly. [00:43:53] Speaker 03: I don't need your verification on whether I'm right on that. [00:43:56] Speaker 03: What I need you to do is to address whether or not there's any reason to send it back if you made that mistake, given that I now understand the products come in fully assembled. [00:44:05] Speaker 03: There are no pieces in a bag. [00:44:07] Speaker 05: Well, Your Honor, even in the curtain wall decision, those curtain wall units are fully assembled and they have to be attached to the larger [00:44:14] Speaker 05: curtain wall, the skin of the entire building. [00:44:17] Speaker 05: If that curtain wall unit is subject and it's fully assembled when it enters, then even the handle, if you find that the end cap is a fastener and it's assembled, this could still be subject merchandise. [00:44:28] Speaker 03: How is that a sub-assembly? [00:44:29] Speaker 03: The only question, I don't know if it's subject, you're not talking, you're not answering my question. [00:44:33] Speaker 03: You're just talking in circles hoping I don't understand you. [00:44:36] Speaker 03: But I do understand you and you're completely off point. [00:44:39] Speaker 03: My point is you've got only one way to win with me and that is sub-assemblies. [00:44:43] Speaker 03: So tell me how this is a sub-assembly, because I don't see any parts. [00:44:47] Speaker 03: I see a fully assembled product. [00:44:49] Speaker 03: So telling me that curtain walls are subject merchandise is not the same thing as telling me curtain rods are a sub-assembly. [00:44:56] Speaker 05: Well, this is an appliance handle that is a sub-assembly of the appliance door. [00:45:00] Speaker 05: The door doesn't function without the handle, and the sub-assembly language expressly recognized. [00:45:05] Speaker 03: By that logic, absolutely everything that ever comes in, from a window which has to be put into a building, to a tire that has to be attached to a car or bike, [00:45:13] Speaker 03: would be a sub-assembly, according to you. [00:45:16] Speaker 03: Every single thing that is not a standalone, completely self-fulfilling and self-functioning product. [00:45:22] Speaker 03: Is that your view of how sub-assembly is meant to be interpreted? [00:45:25] Speaker 05: I think that would be for commerce to interpret where to draw the line with respect to sub-assembly. [00:45:29] Speaker 05: But the sub-assembly language clearly contemplates that the extruded portions of that assembly are still subject merchandise. [00:45:37] Speaker 05: So the handle here... Only if it's a sub-assembly. [00:45:41] Speaker 05: So the handle here, if it's a sub-assembly of the appliance door, the extruded portion of that handle would still be subject merchandise, whether you think the end cap is a fastener or not. [00:45:52] Speaker 03: No, I get that. [00:45:52] Speaker 03: I'm just trying to figure out whether or not there is any fact question on the sub-assembly point, because the natural extension of your argument as a matter of law, not as a matter of fact, would be that sub-assemblies, as that word is used in the scope, is a question of law. [00:46:08] Speaker 03: I'm interpreting the scope order. [00:46:10] Speaker 03: not applying it, not whether Whirlpool's handles are subassemblies, but what a subassembly is. [00:46:15] Speaker 03: And I'm finding it a little, I'm a little hesitant to say that a subassembly could be anything that is incorporated into a larger object ultimately, like a window which is incorporated into a house or a tire which is incorporated into a vehicle of some sort. [00:46:28] Speaker 03: I'm a little nervous saying that it feels wrong to me as a matter of law that that would be the right definition of subassembly. [00:46:36] Speaker 03: Is there anything I can look at? [00:46:37] Speaker 03: Are there any other [00:46:39] Speaker 03: Anything in this record at all on sub-assemblies or how commerce is interpreted that term in the past? [00:46:45] Speaker 05: Commerce has not addressed the sub-assembly language in the past. [00:46:49] Speaker 05: But again, going back to the curtain wall decision before this court, the curtain wall unit is a sub-assembly of the larger curtain wall. [00:46:57] Speaker 05: It could have been found to be in, for that reason, this court [00:47:00] Speaker 05: found that it was in as part, it was part of a curtain wall and therefore subject merchandise. [00:47:05] Speaker 05: What is a curtain wall? [00:47:06] Speaker 03: Just so I know. [00:47:07] Speaker 05: So a curtain wall, when you're looking at a building, the outer skin of the building where you see glass, there are aluminum extrusions that hold all of that together from the top of the building to the bottom of the building. [00:47:19] Speaker 05: And the skin of the building is the finished curtain wall. [00:47:23] Speaker 05: What this court found to be subject merchandise are the units that comes in like a jigsaw puzzle. [00:47:28] Speaker 05: They're pieces that are assembled [00:47:30] Speaker 05: to form the skin of the building, the subject merchandise. [00:47:34] Speaker 03: But the difference is, those come in like pieces and are put together. [00:47:37] Speaker 05: Just like this handle is a piece that you put together to the oven door. [00:47:40] Speaker 05: The oven door doesn't work with that handle. [00:47:42] Speaker 05: You have to attach the handle to make that thing work. [00:47:45] Speaker 03: Are these refrigerator door handles? [00:47:47] Speaker 03: Refrigerator door handles. [00:47:49] Speaker 03: You're a guy, so I'll give you a little pass on not knowing your appliance handles. [00:47:52] Speaker 03: But yeah, there's a refrigerator. [00:47:59] Speaker 05: But again, so [00:48:00] Speaker 05: As we were talking about this finished product, finished merchandise exemption, it would be an inconsistent interpretation to define one product if it has a fastener that's attached to it to be in because it's an assembly, and then if the same product came in without the fastener attached to it to be subject merchandise because it doesn't satisfy the finished goods kit exemption. [00:48:24] Speaker 05: That's the interpretation Commerce has applied over and over again, and it's an interpretation they applied in the Meridian [00:48:31] Speaker 05: appliance handle kit and the trim kit. [00:48:34] Speaker 05: And I would also point out, going back to the fastener language, in district cargo, which was a case before this court, and the marine trim kits, the fasteners in those cases weren't nuts, bolts, and screws. [00:48:46] Speaker 05: They were brackets. [00:48:48] Speaker 05: They were iron locking buckles, things other than some sort of what you would think is a nut, bolt, or screw. [00:48:56] Speaker 05: If there are no other questions, [00:48:59] Speaker 01: Thank you very much. [00:49:00] Speaker 01: We thank both sides in the cases submitted.