[00:00:00] Speaker 03:
Hitachi Medal versus United States.

[00:00:46] Speaker 05:
The International Trade Commission is tasked with evaluating the impact of imports on an industry.

[00:00:59] Speaker 05:
Nothing is more fundamental to that inquiry than the definition of the industry.

[00:01:05] Speaker 05:
The statute defines industry as the producers of a whole of the domestic-like product.

[00:01:14] Speaker 05:
The statute then goes on to define what is domestic like product.

[00:01:19] Speaker 05:
It is a product that is like, or in the absence of like, most similar in terms of characteristics and uses with the article subject to investigation.

[00:01:32] Speaker 06:
I believe part of your argument is that the commission improperly adopted a presumption-type standard here.

[00:01:40] Speaker 06:
Is that correct?

[00:01:41] Speaker 06:
That is correct, your Honor.

[00:01:42] Speaker 06:
Why don't you explain?

[00:01:44] Speaker 06:
What is it that they did that you find offensive?

[00:01:49] Speaker 05:
So I actually think that the best answer, Your Honor, is a quote in the reply brief filed by the government that illustrates the presumption that was adopted.

[00:01:59] Speaker 05:
They state, because imports of these types of products were not subject to the instant anti-dumping or countervailing duty investigation, so we happen to be arguing about a like product that sat outside the scope of the investigative product.

[00:02:14] Speaker 06:
What's the presumption that they started first by looking at commerce's subject merchandise determination?

[00:02:22] Speaker 05:
They do, Your Honor, and they go actually further.

[00:02:25] Speaker 05:
They say, analysis of any product... Is that impossible?

[00:02:29] Speaker 05:
It is, Your Honor, because they go beyond and they say, any consideration of products beyond the scope of what's under investigation is simply immaterial to the domestic light product analysis.

[00:02:43] Speaker 05:
So what they've done is they've confined the domestic-like product analysis to the scope.

[00:02:49] Speaker 05:
They've said, we've defined this box of products that are within the scope, and we do not contest that they are entitled to, any participants are entitled to define what the scope of the investigative products are.

[00:03:01] Speaker 05:
The task of the ITC has been to decide, well, what industry do these products that are subject to investigation fall in?

[00:03:11] Speaker 05:
That industry could be broader.

[00:03:13] Speaker 05:
It could be subdivided into two.

[00:03:15] Speaker 06:
So your objection is in defining what product that the ITC looks through the commerce as subject merchandise determination.

[00:03:24] Speaker 05:
and that they use that as an ending point, not a starting point.

[00:03:28] Speaker 06:
But it's not improper that they started there, correct?

[00:03:31] Speaker 05:
Of course.

[00:03:32] Speaker 05:
Actually, the statute mandates that they start there, that they absolutely begin there.

[00:03:36] Speaker 06:
So we know that that's not the problem.

[00:03:38] Speaker 06:
That is correct.

[00:03:39] Speaker 06:
That they look there first.

[00:03:40] Speaker 06:
Your argument is that that's the only place they look.

[00:03:44] Speaker 05:
That is absolutely correct.

[00:03:46] Speaker 05:
They did not make the secondary necessary comparison, which is

[00:03:51] Speaker 05:
to say that the domestic-like product is that which is like what is subject to the investigation.

[00:03:58] Speaker 05:
It is not simply what is subject to investigation.

[00:04:00] Speaker 05:
It is what is like subject to investigation.

[00:04:04] Speaker 05:
What industry does that fit?

[00:04:06] Speaker 06:
And to give a big... You're not arguing that they simply adopted the scope of the subject merchandise and the like-product determination, correct?

[00:04:16] Speaker 06:
I mean, they did do an analysis.

[00:04:19] Speaker 05:
But their analysis was confined and limited to the scope of what was already under investigation.

[00:04:26] Speaker 05:
They never went the next necessary step and said, well, what industry does this scope fit into?

[00:04:33] Speaker 06:
For example, if we were... But they did that after they made a light product determination.

[00:04:37] Speaker 06:
I mean, you first have to determine what the light product is in order to understand what the U.S.-producing industry is.

[00:04:44] Speaker 05:
And that is the core of our argument that they never defined the domestic-like product.

[00:04:49] Speaker 05:
How wide is this?

[00:04:50] Speaker 05:
We see the scope.

[00:04:51] Speaker 05:
We see a continuum of steel products for which seven... They did define it.

[00:04:57] Speaker 06:
They adopted the scope of the subject merchandise under investigation that was derived by the Department of Commerce.

[00:05:09] Speaker 06:
It's not that they had a blank.

[00:05:12] Speaker 06:
They did have something there.

[00:05:14] Speaker 06:
It happened to be the subject merchandise determination of commerce.

[00:05:20] Speaker 05:
And they looked no further than that.

[00:05:23] Speaker 06:
If they make an analysis and say, we need to look no further,

[00:05:29] Speaker 06:
We now determine that the live product determination is coterminous with the subject merchandise determination.

[00:05:40] Speaker 06:
Why is that wrong?

[00:05:41] Speaker 05:
Because they never bothered to explain how the narrow and precise definition that they used in this particular case was different from the previous cases, was different from subsequent cases, was different from 35 years, was different from the industry that they had found in all the previous cases.

[00:06:01] Speaker 06:
That's another argument that you have, and that's that they left out a certain segment of the industry that they should have.

[00:06:10] Speaker 05:
And it's our belief they did that and not considering the totality of the domestic-like product in the first instance.

[00:06:18] Speaker 05:
So it is, for example, that if they had filed a petition on red balloons, we had argued that, well, the industry here should be all balloons, not just simply red balloons.

[00:06:31] Speaker 05:
Their position is they don't need to consider that because that is immaterial because yellow balloons are outside of scope.

[00:06:39] Speaker 05:
And our position is now, in the first instance, you look at what is actually being requested to be investigated.

[00:06:47] Speaker 05:
What's the scope of the petition?

[00:06:49] Speaker 05:
Next step is to determine in which industry does this fit?

[00:06:55] Speaker 05:
Is there such an industry as red balloons or is it balloons?

[00:06:59] Speaker 05:
In our case, is there such an industry as tool steel?

[00:07:04] Speaker 05:
or is there such an industry as carbon and alloy steel?

[00:07:06] Speaker 05:
We've raised this question because previously the answer to that was no.

[00:07:11] Speaker 06:
You mean a separate industry.

[00:07:14] Speaker 05:
Is it a separate industry?

[00:07:15] Speaker 05:
Is it a larger industry?

[00:07:17] Speaker 05:
Tooled steel had always been part of a separate industry historically.

[00:07:22] Speaker 06:
And the cases you cite, they're all safeguard cases or other type of trading new cases.

[00:07:29] Speaker 06:
And they, that's a different standard.

[00:07:31] Speaker 06:
The safeguard standard is different.

[00:07:34] Speaker 06:
It's a different measurement of the merchandise.

[00:07:37] Speaker 06:
It's a different type of relief.

[00:07:40] Speaker 05:
It is, and it's our position that those cases are not dispositive, but they certainly are informative.

[00:07:46] Speaker 05:
We defer to agencies' expertise.

[00:07:49] Speaker 05:
Steel is an agent, is an industry that the ITC... And you made this argument before?

[00:07:55] Speaker 05:
Absolutely.

[00:07:56] Speaker ?:
Okay.

[00:07:56] Speaker 05:
and that steel is an industry that they had analyzed for the past 35 years.

[00:08:02] Speaker 05:
They had reached a conclusion that it is certainly informative and helpful and meaningful to the analysis because otherwise you end up where we are today.

[00:08:12] Speaker 05:
We have continuing right now before the International Trade Commission at least three completely separate definitions of an industry comprised of cut to length plate.

[00:08:23] Speaker 05:
One definition, currently open, just considers carbon steel.

[00:08:30] Speaker 05:
Another definition is carbon plus alloy.

[00:08:34] Speaker 05:
A third definition is just certain sub-segments of those two.

[00:08:39] Speaker 05:
All of those three cases right now are open before the Trade Commission.

[00:08:44] Speaker 05:
So instead of having one common definition of an industry, of an industry that I should say the International Trade Commission has analyzed deeply and continuously for 35 years and reached informed judgments about where the parameters of those industries are,

[00:09:01] Speaker 05:
yet continues to carry on case after case with different definitions of industry, which sets the fundamental framework for the entire iterative analysis before the Trade Commission.

[00:09:14] Speaker 05:
Nothing can proceed without the definition of industry.

[00:09:19] Speaker 05:
And it's our position that the fatal flaw in their analysis is a de facto presumption that like product or industry follows scope.

[00:09:31] Speaker 05:
And it's our position that it simply does not.

[00:09:35] Speaker 05:
It begins with scope.

[00:09:38] Speaker 05:
Of course we need a reference point, and the statute clearly references that.

[00:09:42] Speaker 02:
Didn't they consider, in their opinion, I'm looking at page, for example, 2099 to 2100, I mean, there they do go through the six factor analysis, don't they?

[00:09:54] Speaker 05:
They do, but unfortunately their six factor analysis is confined to what is within the scope.

[00:10:02] Speaker 05:
So they have identified a scope.

[00:10:05] Speaker 02:
Is it confined to what was argued before then?

[00:10:08] Speaker 05:
It was absolutely not.

[00:10:09] Speaker 05:
Our fundamental argument at the hearing and the presentation, and I simply did it myself, so I'm very familiar with it, was tool steel is much like stainless steel.

[00:10:21] Speaker 05:
That was principally our argument.

[00:10:25] Speaker 05:
So you need to consider us as part of that group.

[00:10:29] Speaker 05:
Do what you do with this larger stainless steel family, because we are even more different than carbon steel from stainless steel.

[00:10:37] Speaker 05:
That was the essence of our argument.

[00:10:40] Speaker 05:
They never did that.

[00:10:42] Speaker 05:
They never looked and said, well,

[00:10:45] Speaker 05:
We are taking stainless steel and we've removed it from this investigation.

[00:10:51] Speaker 05:
We have not found it to be part of this industry.

[00:10:54] Speaker 05:
And our position was if that is true for stainless steel, why is the same not true for tool steel?

[00:11:02] Speaker 05:
If you've carved out a piece and we're most similar to the piece that you've carved out, how do we not?

[00:11:07] Speaker 02:
So your complaint is that they didn't go through the six factor analysis with respect to an explanation of why stainless steel is carved out and yet tool steel is still in?

[00:11:18] Speaker 05:
That is absolutely correct.

[00:11:20] Speaker 05:
That was the core of our analysis and that flaw arises because they simply began with scope, ended with scope in defining the industry and there was no meaningful analysis to determine what is like

[00:11:36] Speaker 02:
I feel like I'm missing something in your argument because you keep on saying they started with scope and ended with scope but I look at their discussion and it's for multiple pages and it goes through those different factors so I feel like I must be missing something.

[00:11:48] Speaker 05:
So all of those factors and the entirety of that analysis is limited to what was covered by the scope of the investigation.

[00:11:55] Speaker 05:
It's limited to the product subject to investigation.

[00:11:59] Speaker 05:
That was the limiting factor.

[00:12:01] Speaker 05:
It never looked at holistically first.

[00:12:05] Speaker 02:
So in other words, you're saying that they should start looking outside of that?

[00:12:10] Speaker 05:
You first have to look outside of that.

[00:12:12] Speaker 02:
The statute mandates... I thought you said you have to start with the definition of the scope of the investigation.

[00:12:19] Speaker 05:
You do, and then the statute requires finding out what is like those things.

[00:12:25] Speaker 05:
are yellow balloons like red balloons.

[00:12:28] Speaker 05:
I can bring up a case, and I can have as my scope, red balloons.

[00:12:33] Speaker 05:
But is my industry, my injury analysis, is that all balloons or is that just red?

[00:12:39] Speaker 05:
And they stayed with red.

[00:12:41] Speaker 05:
That's effectively what they did.

[00:12:44] Speaker 05:
And our primary position was that first, you need to decide what it's like when things are investigated.

[00:12:53] Speaker 05:
Alloy steel was included within scope, okay?

[00:12:56] Speaker 02:
Did anybody argue that stainless steel was like a light product?

[00:13:02] Speaker 05:
Our argument was we were like, tool steel was like stainless steel.

[00:13:08] Speaker 02:
that there was nothing to suggest that stainless steel was a light product.

[00:13:12] Speaker 02:
Nobody ever suggested that.

[00:13:13] Speaker 02:
I'm just trying to understand how the proceedings were.

[00:13:16] Speaker 02:
So our argument was, we're like stainless steel, they're not a light product, therefore we're not a light product.

[00:13:23] Speaker 02:
But you're saying that if nobody ever argued that stainless steel was a light product, I'm just wondering, like in the course of litigation, for example,

[00:13:35] Speaker 02:
You know, usually when a court is trying to make a determination, and it's probably the same with the agency, they're looking at the input that they're receiving and they're looking at, you know, the arguments that are being made before them.

[00:13:47] Speaker 02:
And that is something that informs the scope of their analysis.

[00:13:54] Speaker 02:
So I'm just wondering, how does that factor into this?

[00:13:57] Speaker 05:
That that is when we went into the extensive 35 year history of analysis showing that stainless steel had been historically separate like product.

[00:14:04] Speaker 05:
All these products where these lines were in the steel industry.

[00:14:10] Speaker 06:
This is your established practice argument that there was an agency practice.

[00:14:14] Speaker 05:
That is exactly right.

[00:14:16] Speaker 05:
That stainless steel was a different like product.

[00:14:19] Speaker 05:
Stooled steel was a different like product.

[00:14:21] Speaker 05:
And we went through the history of all the steel cases of where these lines were historically.

[00:14:28] Speaker 04:
Council, do you want to save time for rebuttals?

[00:14:30] Speaker 05:
I would.

[00:14:31] Speaker 05:
Thank you very much, Your Honor.

[00:14:35] Speaker 04:
How do I pronounce your name?

[00:14:36] Speaker 04:
Is it Soysette?

[00:14:37] Speaker 00:
Soysette.

[00:14:38] Speaker 00:
Yes, Your Honor.

[00:14:39] Speaker 00:
May I please record?

[00:14:40] Speaker 00:
Brian Soysette, representing the U.S.

[00:14:42] Speaker 00:
International Trade Commission.

[00:14:44] Speaker 00:
As council just stated, scope is the starting point for the commission's light product analysis.

[00:14:49] Speaker 00:
I think what's key here is that council is focusing on products that were not part of that starting point.

[00:14:55] Speaker 00:
They're focusing on these products that were excluded from the scope.

[00:14:58] Speaker 00:
Like stainless steel.

[00:15:00] Speaker 00:
Like stainless steel.

[00:15:00] Speaker 00:
Specifically excluded.

[00:15:01] Speaker 00:
That's one of the products explicitly excluded, correct, your honor.

[00:15:04] Speaker 00:
And so that is the reason they were not in the commission's starting point.

[00:15:07] Speaker 00:
And to follow up on your point, Your Honor, no party argued that they should be included in the commission's definition of light product.

[00:15:14] Speaker 00:
No party requested that the commission define the light product more broadly than commerce's scope regarding stainless steel or anything else.

[00:15:21] Speaker 00:
Indeed,

[00:15:22] Speaker 00:
Before the commission, Council for Hitachi argued the opposite, that these excluded products are not like the other articles that were described in Commerce at Scope.

[00:15:30] Speaker 00:
If you look to pages 1266 to 1269 of the Joint Appendix, you'll see Hitachi's brief before the commission in which they are, yes, they're arguing that tool steel is similar to stainless steel and other products, but they're also emphasizing differences between stainless steel, these excluded products, and the other types of steel plate that were subject to Commerce at Scope.

[00:15:50] Speaker 00:
And second, even if there are similarities between tool steel, stainless steel, and other exclusive products, that's not the pertinent issue.

[00:15:58] Speaker 00:
The pertinent issue is whether there were clear dividing lines between tool steel and other articles that were like those described in Commerce of Scope, meaning carbon steel plate and alloy steel plate.

[00:16:09] Speaker 00:
There are thousands of permutations of student work.

[00:16:12] Speaker 03:
But does commerce have an obligation to independently determine what the domestic like product is?

[00:16:18] Speaker 00:
The commission?

[00:16:19] Speaker 00:
Yes, Your Honor.

[00:16:21] Speaker 00:
That has never been a source of contention, certainly.

[00:16:23] Speaker 00:
The commission does independently define the definition of like product.

[00:16:27] Speaker 03:
But I think, unless I'm wrong, his argument is that you instead started by just deeming it coextensive with

[00:16:36] Speaker 03:
the products covered in the scope of this.

[00:16:38] Speaker 00:
And of course, that's not correct, Your Honor.

[00:16:40] Speaker 00:
We would disagree with that contention.

[00:16:42] Speaker 00:
And I think looking at both the preliminary determinations in which we initially examined whether there are distinctions between carbon steel plate and alloy steel plate.

[00:16:50] Speaker 00:
And this is not even an issue raised by parties.

[00:16:52] Speaker 00:
The commission on its own acknowledged this was the first time it had examined these products together.

[00:16:57] Speaker 00:
And it undertook its own analysis.

[00:16:59] Speaker 00:
It undertook analysis for a different product as well, X70 plates.

[00:17:03] Speaker 00:
It's using oil and gas transmissions.

[00:17:04] Speaker 00:
And then in the final determinations,

[00:17:06] Speaker 00:
The commission also examined the issue presented by the respondents here, whether there were clear dividing lines between tool steel and other articles like those described in commerce as scope.

[00:17:16] Speaker 06:
Council's emphasis- Going back to Judge Moore's question, in defining the like product,

[00:17:23] Speaker 06:
The commission is directed by the statute to first look at the subject matter, subject merchandise under investigation, correct?

[00:17:32] Speaker 00:
Correct.

[00:17:32] Speaker 00:
The statute defines domestic-like product as a product which is like or in the absence of like most similar in characteristics and uses with the article subject to investigation.

[00:17:41] Speaker 00:
And that article subject to investigation, that is commerce's scope.

[00:17:44] Speaker 00:
Hence, the commission's starting point is always commerce is scope.

[00:17:48] Speaker 00:
And while it doesn't purely rely on parties to raise issues about other products that may come up, as it did in the preliminary determinations here and looking at carbon and alloy steel plate, it does actively solicit their input.

[00:18:00] Speaker 00:
And here, parties raised two issues, the X70 plate and tool steel.

[00:18:04] Speaker 00:
And the commission examined whether or not there were clear dividing lines between tool steel and... Were you saying that supplemental questionnaires were sent down and... They were, yeah.

[00:18:12] Speaker 00:
Initially respondents misframed the issue.

[00:18:15] Speaker 00:
They argued that there was no U.S.

[00:18:16] Speaker 00:
production of tool steel, which would not be a domestic-like product issue.

[00:18:20] Speaker 00:
They subsequently changed their position.

[00:18:21] Speaker 00:
They identified possible producers.

[00:18:23] Speaker 00:
They commissioned to issue questionnaires to these firms, collected data from them, which is the basis for its analysis and its final determination.

[00:18:30] Speaker 06:
So is this a case where, for example, the ITC looked at Congress's scope determination and then simply said, we adopted it.

[00:18:41] Speaker 06:
We're not going to do anything else.

[00:18:43] Speaker 00:
Certainly not, Your Honor.

[00:18:44] Speaker 00:
We took our own analysis.

[00:18:45] Speaker 00:
Again, in the preliminary determination, starting with this overarching question, are there clear dividing lines between carbon steel plate and alloy steel plate?

[00:18:53] Speaker 00:
And then for the other issues raised by parties where they asked for us to define a separate light product, we gathered information on those products and did an analysis of whether there were clear dividing lines between these products and others.

[00:19:03] Speaker 00:
Now, to emphasize again, no party asked us to define the light product more broadly than commerce's scope.

[00:19:09] Speaker 00:
Hence, that's why there is no analysis of these other products.

[00:19:13] Speaker 06:
What about the argument of an established agency practice?

[00:19:18] Speaker 00:
Agency practice.

[00:19:19] Speaker 00:
Well, that mischaracterizes like product definitions.

[00:19:22] Speaker 00:
These determinations are not binding precedents.

[00:19:24] Speaker 00:
They are factual determinations based on the record before the commission.

[00:19:29] Speaker 00:
And it's necessary the commission always bases like product definition on the record before it, not on prior definitions.

[00:19:34] Speaker 00:
Because product characteristics, market characteristics, they're not static.

[00:19:38] Speaker 00:
These will change over time.

[00:19:39] Speaker 00:
And that was the case in these determinations.

[00:19:41] Speaker 00:
When the Commission looked at carbon steel plate and alloy steel plate, it noticed that the characteristics of these products had converged over time.

[00:19:49] Speaker 00:
Hence, while in past investigations the Commission had looked at one or the other, it found that there were not clear dividing lines between these products, and it included both in the single definition of domestic white product.

[00:20:00] Speaker 00:
And again, as the Court of International Trade found, prior anti-dumping and countervailing duty proceedings cited by Hitachi address different product groupings.

[00:20:08] Speaker 00:
So the question at issue here, whether there were clear dividing lines between tool steel and carbon alloy steel plate, was never addressed in a prior determination.

[00:20:16] Speaker 00:
And as the Court noted that their citation to safeguards investigations is

[00:20:21] Speaker 00:
I'm glad that they finally acknowledged that this is not binding on the Commission, but I would argue that it's of limited information at all.

[00:20:29] Speaker 00:
This is a different statute.

[00:20:30] Speaker 00:
The Trade Act of 1974 versus the Tariff Act of 1930, for anti-dumping.

[00:20:35] Speaker 06:
I would appreciate that argument, but it seems to me that there's something there to be said for consistency by the agency in its determination.

[00:20:43] Speaker 06:
Certainly, Your Honor.

[00:20:45] Speaker 06:
Well, you may have a different relief that's being sought

[00:20:49] Speaker 06:
or a different type of trade action that's been put into place, the domestic industry itself remains the same.

[00:20:59] Speaker 06:
I mean, that seems to me to be less dynamic than the other factors.

[00:21:07] Speaker 06:
Why would there be a different domestic industry for a safeguard action than for a dumping action?

[00:21:17] Speaker 06:
You're talking basically the same producers, the same data?

[00:21:21] Speaker 00:
It's a distinct remedy, and there are also distinct terms, Your Honor.

[00:21:25] Speaker 00:
The statute defines in safeguards investigations that the Commission define a like or directly competitive product.

[00:21:31] Speaker 00:
An anti-dumping, countervailing, do-it-your-own investigations is a product like or similar in characteristics and uses.

[00:21:36] Speaker 00:
Also different are the criteria that the Commission uses to define each of these products.

[00:21:40] Speaker 00:
There's some overlap, but there's also differences.

[00:21:43] Speaker 00:
And because of the differences in statute, terminology, and criteria, different conclusions, different definitions would be expected and reasonable.

[00:21:52] Speaker 00:
Also, with the prior anti-dumping countervailing duty proceedings, I think a key point is that each of these had a different starting point.

[00:21:58] Speaker 00:
The scope was different.

[00:21:59] Speaker 00:
It did not include the products grouped here.

[00:22:01] Speaker 00:
Carbon steel plate, alloy steel plate, and tool steel.

[00:22:04] Speaker 00:
Indeed, Hitachi themselves acknowledged various times in their arguments that the underlying investigations were the first time that the commission had looked to this grouping of products.

[00:22:13] Speaker 00:
So there could not have been a prior agency practice for them to rely on.

[00:22:16] Speaker 00:
The Court of National Trade also confirmed this.

[00:22:19] Speaker 00:
I think also informative, Hitachi is citing to SKF, this court's holding in that, to support its reliance and safeguards investigations.

[00:22:26] Speaker 00:
But the holding in that case was that the same terms under the same statute should have the same meaning.

[00:22:31] Speaker 00:
And of course, here, we have different terms and different statutes altogether.

[00:22:36] Speaker 00:
More informative is this court's holding in USEC versus United States, where this court found that different scopes promulgated under different statutory provisions serve distinct purposes and are not controlling each other as a result.

[00:22:48] Speaker 00:
Finally, on Hitachi's point that the Commission lacks sufficient data for production facilities, processes, and employees, the Commission's investigation of this issue was proper.

[00:23:00] Speaker 00:
We issued questionnaires to all firms identified by Hitachi.

[00:23:03] Speaker 00:
We received responses from four.

[00:23:05] Speaker 00:
We followed up with other firms that did not respond and received partial responses from some of them.

[00:23:10] Speaker 00:
As we explained in our brief at page 48, Hitachi's characterization of the record that this represented only 12% of domestic tool store production.

[00:23:17] Speaker 00:
That's pure conjecture on Hitachi's part.

[00:23:19] Speaker 00:
There's no record evidence supporting that.

[00:23:22] Speaker 00:
Further, it does not erase the record evidence before the commission that of the four firms reporting to us, three indicated that they produced these products at the same facilities on the same equipment and with the same employees.

[00:23:34] Speaker 00:
Unless there's further questions, that concludes my argument.

[00:23:52] Speaker 01:
I would first like to make a few additional points specifically regarding the argument that the ITC assumed a presumption or created a presumption that

[00:24:10] Speaker 01:
the domestic-like product should be defined as scope or is defined as scope.

[00:24:14] Speaker 01:
The ITC's analysis was a neutral evidentiary examination, and that's most obviously demonstrated by the fact that petitioners themselves had to argue that the domestic-like product was coextensive with scope.

[00:24:27] Speaker 01:
So the domestic industry and petitioners had to put evidence on the record and make arguments along those lines.

[00:24:32] Speaker 01:
If a presumption existed,

[00:24:34] Speaker 01:
that would be purely on the respondent to have rebutted that and petitioners would not have had to make affirmative arguments on that point.

[00:24:43] Speaker 01:
Further, the

[00:24:46] Speaker 01:
This goes to the fact that arguments matter, and the arguments made as to the domestic-like product definition absolutely matter.

[00:24:54] Speaker 01:
Council for Hitachi has raised the analogy of a domestic-like product being defined as, or excuse me, the scope of an investigation being defined as red balloons and whether the industry itself should be defined as all balloons.

[00:25:07] Speaker 01:
Below, both in the administrative proceeding and before the lower court, Hitachi did not argue that the domestic electronic should be defined any more broadly.

[00:25:17] Speaker 01:
And there was no evidence on the record for the ITC to have conducted that analysis.

[00:25:22] Speaker 01:
Turning to Hitachi's substantial evidence argument, I would just like to note that in the proceedings below, Hitachi challenged the ITC's application of the six-factor test, and the conclusion resulting from that factual analysis is not supported by substantial evidence.

[00:25:40] Speaker 01:
It's noteworthy that the court below determined that based on the record facts, the results of the ITC's six-factor test was, in fact, supported by substantial evidence.

[00:25:51] Speaker 01:
Hitachi has abandoned that argument before this court and does not contest the lower court's holding that the ITC's six-factor analysis was supported by substantial evidence.

[00:26:01] Speaker 01:
Hitachi does not argue that the six-factor test was not correctly applied.

[00:26:05] Speaker 01:
Instead, Hitachi's argument comes down to an allegation that the ITC should have continued its search for information until it found more data helpful to Hitachi's position.

[00:26:14] Speaker 01:
That is simply not a basis for remand.

[00:26:18] Speaker 01:
Hitachi's dissatisfaction with the certified content of the additional questionnaires it received from tool steel producers or the fact that it didn't receive all the responses is not unusual, not unique, and simply not a basis for remand.

[00:26:37] Speaker 01:
The court below very astutely noted on Appendix 36, plaintiffs appear to assert that there was substantial record evidence for the finding that tool steel constituted a separate-like product, but not the finding that tool steel is part of a single domestic-like product.

[00:26:54] Speaker 01:
Petitioners' assertions reflect disagreement with the conclusion.

[00:26:57] Speaker 01:
The commission drew from the available evidence, but that is not a proper basis for remand.

[00:27:00] Speaker 01:
The arguments before this court are even weaker.

[00:27:05] Speaker 01:
And that concludes my comments, unless there are any additional questions from the court.

[00:27:08] Speaker 04:
I'm just impressed at how many different issues you hit, and I'm convinced that you don't breathe.

[00:27:13] Speaker 01:
But thank you for your argument.

[00:27:14] Speaker 04:
Let's have the rebuttal.

[00:27:23] Speaker 05:
Thank you, your honor.

[00:27:24] Speaker 05:
Only two free points for me.

[00:27:25] Speaker 05:
First, just one quick excerpt about what we did, in fact, argue at the court, despite what opposing counsel suggests.

[00:27:34] Speaker 05:
There was no evidence supporting a finding of a single light product coextensive with the scope of the investigation that includes tool steel, but does not include the seven excluded groups of cut to length blade, inclusive of stainless steel within that category.

[00:27:51] Speaker 05:
That's just one excerpt.

[00:27:52] Speaker 05:
One last brief point, if I might, within the anti-dumping statute.

[00:27:57] Speaker 05:
Where does this leave us?

[00:27:58] Speaker 05:
Where are we today at the Trade Commission?

[00:28:01] Speaker 05:
Currently, there are three completely different definitions of carbon plate, of steel plate used by the Trade Commission.

[00:28:11] Speaker 05:
Completely different.

[00:28:12] Speaker 05:
Some include alloy, some include don't, some include various products, some have different exclusions.

[00:28:18] Speaker 05:
How can those three different definitions of an industry coexist simultaneously in cases currently proceeding for the Commission?

[00:28:27] Speaker 05:
It is because the scope was different in each of those three cases.

[00:28:33] Speaker 05:
And this is just one example of scope being unilaterally adopted without regard to any consideration of the industry as a whole and carried forward case by case.

[00:28:43] Speaker 05:
That leaves us with petitioners arbitrarily determining scope, the commission adopting that as industry, and cases proceeding on that basis even as of today.

[00:28:55] Speaker 04:
Okay, I thank all counsel for the argument.

[00:28:57] Speaker 04:
It was very helpful.

[00:28:58] Speaker 04:
This case is taken under submission.