[00:00:00] Speaker 05:
Please have a seat.

[00:00:11] Speaker 05:
We have two cases scheduled for oral argument this morning.

[00:00:15] Speaker 05:
The first case is Houdon Company versus United States 18-1962.

[00:00:23] Speaker 05:
Attorney Mohan.

[00:00:29] Speaker 05:
You reserved three minutes of your time for rebuttal.

[00:00:31] Speaker 05:
Is that correct?

[00:00:31] Speaker 01:
I did.

[00:00:32] Speaker 01:
Yes, that's correct, sir.

[00:00:33] Speaker 05:
All right.

[00:00:33] Speaker 05:
You may proceed.

[00:00:35] Speaker 01:
Good morning, Your Honors.

[00:00:36] Speaker 01:
May it please the court?

[00:00:38] Speaker 01:
I'm here on behalf of Kuidan Company, appealing a final commerce scope ruling concerning steel concrete reinforcing bar from China, or rebar.

[00:00:47] Speaker 04:
On page 17 of the blue brief, you say the merchandise imported by Qui-Gon has been converted from rebar into training stakes by creating a sharp point at one end so the stakes can be easily driven into vineyards and orchards.

[00:01:03] Speaker 04:
Could the training stakes be used as rebar?

[00:01:05] Speaker 01:
No.

[00:01:06] Speaker 01:
These training stakes are dedicated only for use.

[00:01:11] Speaker 01:
They're designed.

[00:01:12] Speaker 04:
So if I happened to have been a union laborer and am used to driving rebar into the ground as the initial basis for laying rebar,

[00:01:26] Speaker 04:
And I grabbed one of these things.

[00:01:27] Speaker 04:
I couldn't use it for rebar purposes.

[00:01:31] Speaker 01:
It would not be suitable for use for steel concrete reinforcement, given the length of the rebar, the fact that it has a pointed tip that is smooth without burrs.

[00:01:41] Speaker 01:
That further processing, that cutting, the removal of the burrs.

[00:01:45] Speaker 01:
How long is it?

[00:01:46] Speaker 01:
It's four to five feet in length.

[00:01:49] Speaker 04:
And if you needed to drive it into a firm foundation, it couldn't be used for rebar.

[00:01:53] Speaker 04:
What's your basis for that?

[00:01:55] Speaker 01:
The record of the case at the ITC, the ITC's report talks about the rebar that's in scope for steel concrete reinforcement.

[00:02:03] Speaker 01:
And those talk about longer lengths, 20 to 40 feet.

[00:02:06] Speaker 01:
In this case, the rebar is much shorter in length.

[00:02:09] Speaker 01:
I'm sorry?

[00:02:10] Speaker 04:
No.

[00:02:11] Speaker 04:
Rebar is cut into various lengths for use in steel concrete.

[00:02:16] Speaker 01:
Well, we didn't argue on length alone.

[00:02:19] Speaker 01:
In fact, we specifically stated in our scope request that it wasn't the end use or the length alone.

[00:02:25] Speaker 01:
It was the fact that this was further processed into a product that took it entirely out of the scope of the rebar order.

[00:02:31] Speaker 05:
Your argument is that this further processing is that you sharpen one of the ends of the rebar.

[00:02:35] Speaker 01:
The products are cut into four to five feet lengths, and then they're stamped at the end to form a point.

[00:02:42] Speaker 01:
And then that point is smoothened in order to remove the burrs.

[00:02:46] Speaker 03:
Does the point end up cone-shaped or more like pyramid-shaped?

[00:02:52] Speaker 01:
It's an angled point that may be pencil-shaped.

[00:02:57] Speaker 04:
So could I take a piece of rebar without a point on it and a sledgehammer and drive it into the ground and use it as a stake?

[00:03:04] Speaker 04:
as a as a training statement no because it's the angled the angled and really really you're you're in you give me a category categorical note that i couldn't take a piece of rebar without a point on it and drive it into the ground and again you're wrong as a matter of common sense you're wrong and human experience well what i would say is that whether you can use

[00:03:29] Speaker 01:
The training stake, when it's further processed, it becomes a different article of commerce from steel concrete reinforcing bar.

[00:03:36] Speaker 01:
It becomes entirely dedicated to use only for the agricultural purpose.

[00:03:42] Speaker 05:
We're limited to the K1 factors here, correct?

[00:03:43] Speaker 01:
That is correct.

[00:03:45] Speaker 05:
So you're beginning to get into the K2 factors when you're talking about channels of trade and things of that nature.

[00:03:51] Speaker 05:
Let me ask you this question.

[00:03:53] Speaker 05:
So the way I understand the product is basically it is rebar, except that it's been stamped on one end.

[00:04:02] Speaker 05:
It is it is not rebar that's subject to the scope because To begin with I mean the product you do start if you didn't stamp it Do you can see that this would be rebar subject to the scope?

[00:04:15] Speaker 05:
If you if you started only with the stock commodity rebar the starting point before the further processing Then that would be subject to the scope but the scope so let's let's say there's two pieces of standard rebar right off of the the the manufacturer floor and one goes to a construction site and the other goes to some agriculture site or or to your client and

[00:04:42] Speaker 05:
Your client, what the construction site does is they cut it at 10 feet length or 7 feet, whatever they need.

[00:04:52] Speaker 05:
You cut it into 4 feet lengths and then after that, the only thing else that happens is that you stamp the end so that it forms a point.

[00:05:01] Speaker 01:
When the products are imported, they're imported already cut and stamped and forming.

[00:05:06] Speaker 01:
But you didn't answer my question.

[00:05:07] Speaker 01:
Sorry, yes.

[00:05:08] Speaker 05:
You have to answer my question.

[00:05:09] Speaker 01:
Okay.

[00:05:10] Speaker 01:
I'm sorry, could you repeat the question?

[00:05:12] Speaker 05:
Basically your rebar and the rebar that's used by a construction site is the same thing except that yours is cut all the time in four to five feet lengths and it's stamped on one end to a point.

[00:05:26] Speaker 05:
That's the only difference.

[00:05:27] Speaker 05:
That is correct, because the starting point of the rebar is the same, but the ends of the scope... If that's correct, why is it that your product's not covered under the anti-dumping duty order?

[00:05:36] Speaker 05:
Just by a plain reading of the plain meaning of the words of the anti-dumping duty order...

[00:05:42] Speaker 01:
Absolutely.

[00:05:43] Speaker 01:
The plain reading of the scope says that the product covered by the orders is all steel concrete reinforcing bars.

[00:05:52] Speaker 01:
The end use is embedded into the language of the plain reading of the scope.

[00:05:56] Speaker 01:
And it specifically excludes rebar that has been further processed through bending or coding.

[00:06:01] Speaker 04:
And when you look at the K1 factors... Have your training stakes been further processed through coding?

[00:06:06] Speaker 01:
Not through coding, no sir.

[00:06:07] Speaker 04:
Have they been further processed through bending?

[00:06:09] Speaker 01:
They are bent, yes.

[00:06:11] Speaker 04:
And this is where... How are they bent?

[00:06:13] Speaker 01:
Because they're no longer straight.

[00:06:15] Speaker 05:
If you put that rebar on a horizontal plane... There's a difference between being bent and when they're straight.

[00:06:23] Speaker 05:
You're saying that they're not straight because the point, you have a straight line and then the point throws that line off.

[00:06:31] Speaker 05:
But bending, we know that in the, through reading the petition, bending is actually getting the rebar

[00:06:37] Speaker 05:
and changing it to a U shape or S?

[00:06:41] Speaker 01:
There's no definition of straight in the petition or in the K-1 factors.

[00:06:45] Speaker 01:
In fact, the ITC, looking at the K-1 factor, said that only stock deformed rebar, which is not further processed, is subject to the anti-dumping duty orders.

[00:06:56] Speaker 04:
So for the ITC... If your rebar, if your stakes were not straight, as ordinarily understood, leave aside the point.

[00:07:07] Speaker 04:
If your training stakes were not straight, would they be usable by someone in agriculture if they were curved?

[00:07:17] Speaker 04:
Wouldn't it be awfully difficult to drive them into the ground to support a plan?

[00:07:20] Speaker 01:
The fact that the stakes are not straight at the end, the fact that they're angled at the end, makes them suitable to put into the dirt.

[00:07:29] Speaker 04:
Yeah, they have a point at the end.

[00:07:31] Speaker 04:
We understand that.

[00:07:33] Speaker 04:
Otherwise, they are straight.

[00:07:34] Speaker 04:
Would you agree with that?

[00:07:36] Speaker 01:
I would agree that they are straight other than the point.

[00:07:38] Speaker 04:
So they're not further processed through bending.

[00:07:41] Speaker 01:
But they are further processed.

[00:07:44] Speaker 01:
They have to be straight throughout.

[00:07:47] Speaker 01:
The order says, product covered by orders is all steel concrete reinforcing bars sold in straight lengths.

[00:07:54] Speaker 01:
This is not straight after the further processing.

[00:07:56] Speaker 04:
Are you answering my question?

[00:07:58] Speaker 01:
I'm trying to, Your Honor.

[00:08:00] Speaker 04:
OK.

[00:08:01] Speaker 04:
The question is, are they further processed through bending?

[00:08:06] Speaker 01:
We would argue that an angled product is the same as bending.

[00:08:10] Speaker 01:
There's no functional difference.

[00:08:12] Speaker 01:
There's no definition in the petition.

[00:08:15] Speaker 01:
There's no definition in the order for what was meant by either straight or bent.

[00:08:20] Speaker 01:
So if you have a product that when it's lying on a flat plane and it doesn't touch through the whole flat plane, that we would say is either bent or angled.

[00:08:30] Speaker 04:
Do you contest the finding that your training stakes are plain rounds?

[00:08:34] Speaker 01:
We do not contest that finding.

[00:08:36] Speaker 03:
Isn't there a difference between bent and bending?

[00:08:40] Speaker 03:
That is, I get it.

[00:08:42] Speaker 03:
I think you have in mind that if you took a piece of straight bar and you carved out a little shallow u on this side and a little shallow u on that side, it's going to look a little bit like an undulating wave.

[00:08:58] Speaker 03:
And you might want to describe that as bent.

[00:09:01] Speaker 03:
But you wouldn't describe it as a process of bending.

[00:09:04] Speaker 01:
Well, we would say that it's no longer straight, which is part of the plain reading of the scope.

[00:09:10] Speaker 01:
And our definition that we provided was that straight is exactly vertical or horizontal without a bend, angle, or curve.

[00:09:18] Speaker 01:
There is an angle on this product.

[00:09:20] Speaker 01:
There's clearly an angle.

[00:09:22] Speaker 01:
And it's because of the point.

[00:09:26] Speaker 01:
And really, these definitions of whether it is the different definitions of straight versus

[00:09:32] Speaker 04:
Is a 90-degree angle a bend?

[00:09:36] Speaker 01:
I think it could be either bent or angled.

[00:09:38] Speaker 04:
Okay, so in that case, every time you cut a piece of rebar straight across, it's now bent.

[00:09:45] Speaker 04:
Is that correct?

[00:09:46] Speaker 01:
Under your definition.

[00:09:49] Speaker 01:
I think it depends on if you're cutting it straight down, then it wouldn't, if it's a straight cut, I don't think it would be bent.

[00:09:56] Speaker 04:
That's a 90 degree cut.

[00:09:58] Speaker 01:
A 90 degree cut.

[00:09:59] Speaker 01:
Yes, then it would be an angled.

[00:10:01] Speaker 01:
That would be angled.

[00:10:02] Speaker 04:
And if it's a 180 degree cut?

[00:10:07] Speaker 01:
I'm not sure how that would look, Your Honor.

[00:10:13] Speaker 05:
The court of international trade relied on dictionary in order to arrive at a definition for straight, correct?

[00:10:21] Speaker 05:
What's your problem with that definition?

[00:10:30] Speaker 01:
In the Commerce Department's final scope ruling, Commerce said that it was straight based on any definition.

[00:10:36] Speaker 01:
And that's not true.

[00:10:38] Speaker 01:
Based on the definition that was provided by Quidan, that straight is exactly vertical or horizontal without a bend, angle, or curve, that's not true.

[00:10:46] Speaker 01:
When you look at the perimeter,

[00:10:48] Speaker 01:
It's not straight because it angles.

[00:10:50] Speaker 01:
So it's our position that Commerce Department's scope ruling was unsupported by substantial evidence when they said that any definition.

[00:10:59] Speaker 05:
So your definition, straight means smooth almost, all the way from beginning to end.

[00:11:03] Speaker 01:
That is correct.

[00:11:04] Speaker 05:
But how can that be?

[00:11:05] Speaker 05:
The rebars here have little ribs going up and down the shaft, correct?

[00:11:11] Speaker 01:
But the ridges don't have an angle, though, at the end.

[00:11:15] Speaker 05:
No, but the bar itself has ridges.

[00:11:18] Speaker 05:
going down the entire length of the bar.

[00:11:22] Speaker 05:
How would you say that that's straight?

[00:11:25] Speaker 03:
Ridges have tiny angles in them.

[00:11:27] Speaker 04:
And the ridges are designed to interface with concrete.

[00:11:31] Speaker 04:
That's what rebar is about.

[00:11:32] Speaker 01:
Yes, but when you have the ridges, you're talking about... You take those ridges off.

[00:11:37] Speaker 04:
I'm sorry.

[00:11:37] Speaker 04:
You take those ridges off.

[00:11:38] Speaker 01:
When you're talking about the ridges, those ridges come from the stock deformed, stock concrete base.

[00:11:45] Speaker 01:
That's the starting point.

[00:11:46] Speaker 01:
That bar has not yet been further processed.

[00:11:50] Speaker 05:
So with each sector definition then, none of that can be straight.

[00:11:54] Speaker 05:
The stock rebar is not straight under your definition.

[00:11:58] Speaker 01:
No, stock rebar is not further processed under my definition.

[00:12:01] Speaker 01:
This product goes through further processing.

[00:12:04] Speaker 01:
Stock deformed rebar does not.

[00:12:06] Speaker 01:
And the ITC stated in its review under the K1 factors that only stock deformed rebar, which is not further processed, is subject to the anti-dumping duty orders.

[00:12:16] Speaker 01:
They said that specifically in their first sunset review.

[00:12:18] Speaker 01:
So it's our position that when you have just the stock deformed rebar, that stock commodity rebar, that's within scope.

[00:12:25] Speaker 01:
Once that goes through further processing, that takes it out of scope.

[00:12:29] Speaker 01:
In addition, we think that the products also fit the definition of merchant bar.

[00:12:33] Speaker 04:
And in fact, Commerce made this... Are your training stakes farm equipment?

[00:12:42] Speaker 01:
They are farm equipment.

[00:12:43] Speaker 01:
They're a type of farm equipment.

[00:12:47] Speaker 03:
Why under the language of the order that's sold in straight lengths, et cetera, does it matter whether

[00:13:00] Speaker 03:
These are or are not merchant bar.

[00:13:03] Speaker 01:
Merchant bar was specifically excluded from the scope in the K1 materials and the ITC's reports.

[00:13:10] Speaker 01:
And no party in this case has disputed that merchant bars are out of scope.

[00:13:14] Speaker 03:
And if you look at the discre- and in fact commerce- As I read the commerce scope ruling, it didn't dispute it, but it also didn't embrace it.

[00:13:23] Speaker 01:
But if you look at the K1 factors, the ITC report breaks out subject product, and then it has separate categories for non-subject products, which includes merchant bar.

[00:13:34] Speaker 01:
In addition, that's not a point that's been disputed by either government or petitioners.

[00:13:38] Speaker 05:
OK, you're into your rebuttal time.

[00:13:39] Speaker 05:
Do you want to reserve that?

[00:13:41] Speaker 01:
Yes, I would like to reserve that.

[00:13:42] Speaker 01:
Thank you very much.

[00:13:47] Speaker 05:
So let me make sure I have this correct.

[00:13:49] Speaker 05:
We have two different arguments.

[00:13:53] Speaker 05:
Counselor Hogan, you're going to argue for 12 minutes, and Counselor Shane for three.

[00:13:59] Speaker 05:
Is that correct?

[00:14:00] Speaker 02:
Correct, Your Honor.

[00:14:03] Speaker 05:
OK.

[00:14:03] Speaker 05:
All right.

[00:14:03] Speaker 05:
You may proceed.

[00:14:04] Speaker 02:
Thank you, Your Honor.

[00:14:05] Speaker 02:
Good morning, and may it please the court.

[00:14:07] Speaker 02:
Under the plain language of the scope of this order, Quedon's training stakes fall within the scope unambiguously, and the commerce of scope rolling should be affirmed.

[00:14:19] Speaker 03:
Can I just return to this question about Merchant Bar?

[00:14:22] Speaker 03:
There's nothing about the plain language that says anything about Merchant Bar.

[00:14:28] Speaker 02:
There's nothing in the scope at all.

[00:14:29] Speaker 03:
So you can't say it's within the plain language and therefore we win unless you are saying whether it's merchant bar is irrelevant.

[00:14:39] Speaker 03:
Otherwise you have to build in an analysis of merchant bar before you get to the bottom line conclusion.

[00:14:47] Speaker 02:
What commerce did was find that this product met the physical description of the merchandise.

[00:14:52] Speaker 02:
The argument that Queden made that in fact their product is Merchant Bar, which is a different product that's made of smooth rounds.

[00:14:59] Speaker 02:
It's a specialty product, not a commodity product that's used for different things, but didn't put any evidence on the record to suggest that

[00:15:09] Speaker 02:
that somehow Merchant Bar, that its product was in fact Merchant Bar.

[00:15:14] Speaker 02:
So Commerce rejected that argument.

[00:15:16] Speaker 02:
And I think it's important.

[00:15:18] Speaker 03:
What is Commerce's position on the question, if they had put on persuasive evidence that this was Merchant Bar, that would have what consequence for whether these items were within or outside the scope of the order?

[00:15:34] Speaker 02:
I can't speak to what commerce's conclusion was, because presumably if there was conclusive evidence that it was not intended to be part of the scope, then there would have been a reasonable basis to... Is there conclusive evidence that Merchant Bar was intended not to be part of the scope?

[00:15:50] Speaker 02:
I think the K1, the second sunset, so what Queden has referred to solely is the second sunset review in which the ITC explained that the same manufacturing facilities in the United States that are used to manufacture rebar are also used to manufacture merchant bar.

[00:16:09] Speaker 03:
Right, but I didn't read that language as saying and therefore merchant bar is something different from rebar and outside the scope.

[00:16:17] Speaker 02:
Well, I think that, you know, again, commerce didn't reach that conclusion, but that is a reasonable conclusion to reach considering that... Merchant bar is used in manufacturing other items.

[00:16:28] Speaker 02:
It's used for things like I-beam scaffolding.

[00:16:32] Speaker 02:
But this is page 117 of the appendix.

[00:16:36] Speaker 02:
The description is that merchant bar products include bars with round flat squared angled cross sections and are used in a variety of products.

[00:16:44] Speaker 02:
But the context of that description is that US rebar producers produce additional products using the same equipment.

[00:16:51] Speaker 02:
So there's a reasonable inference to be drawn from the ITC's investigation.

[00:16:57] Speaker 04:
Aquedon says that these states could reasonably be called farm equipment.

[00:17:06] Speaker 04:
So I guess my question to you is is rebar construction equipment?

[00:17:13] Speaker 02:
I think it doesn't matter.

[00:17:14] Speaker 02:
It doesn't matter whether it's farm equipment or construction equipment, because there is no end use restriction or exclusion built into the scope language.

[00:17:23] Speaker 04:
That's true, but I don't understand how it can be equipment at all, as opposed to materials.

[00:17:30] Speaker 02:
That's probably a better reading of what you're saying.

[00:17:33] Speaker 04:
I take this from the other red briefs discussion in which they say, well, Queedon's arguing farm equipment, and we're saying,

[00:17:44] Speaker 04:
intermediate.

[00:17:48] Speaker 05:
How do you respond to your colleagues argument about further processing?

[00:17:54] Speaker 02:
The scope language contains only two exclusions for further processing.

[00:18:00] Speaker 02:
And that is through bending or coding.

[00:18:03] Speaker 02:
We all agree that coding is not applicable.

[00:18:05] Speaker 02:
And so the only exclusion that they're relying upon is the bending.

[00:18:11] Speaker 02:
And commerce recently concluded that simply stamping one end to a point is not bending under a reasonable reading of that language.

[00:18:22] Speaker 02:
There are only two exclusions for further processing.

[00:18:25] Speaker 02:
They don't meet either of them.

[00:18:27] Speaker 02:
So the fact that they are stamped to a point.

[00:18:32] Speaker 05:
Why wouldn't the stamping be further processing?

[00:18:36] Speaker 05:
It's my understanding that you can bend by stamping, where a lot of bending is done by stamping.

[00:18:47] Speaker 02:
Stamping could be further processing, but the language that we have here is that commerce has not simply said, the scope language has not simply said further processing, such as through bending or coding.

[00:18:58] Speaker 02:
Commerce, the scope language, specifically limits any further processing to two types of further processing.

[00:19:05] Speaker 02:
And the stamping of one end commerce found did not meet a dictionary definition or a reasonable definition of bending.

[00:19:14] Speaker 05:
Is one end made?

[00:19:17] Speaker 05:
Cointi through stamping or through studying?

[00:19:21] Speaker 02:
The description that Queden has provided is that it's through stamping.

[00:19:25] Speaker 04:
So if for some strange reason somebody wanted to take rebar and instead of buying the already manufactured alternative smooth steel round bar, they wanted to

[00:19:46] Speaker 04:
run it through brushes and smooth off all the burrs that are there to hold on the concrete, would that not be further processing under the definition?

[00:19:57] Speaker 02:
If the rebar were then smoothed?

[00:20:01] Speaker 04:
Yeah.

[00:20:01] Speaker 04:
So they changed it into something that's to find out, right?

[00:20:06] Speaker 04:
Would it then be further processed or not?

[00:20:14] Speaker 02:
Well, I think it's hypothetical.

[00:20:16] Speaker 02:
Well, I mean, presumably it could then theoretically fall into that specific exclusion for plain rounds if it was smooth.

[00:20:24] Speaker 04:
Right.

[00:20:24] Speaker 04:
So in that sense, you could further process into something excluded.

[00:20:31] Speaker 02:
I suppose that's possible, but that's clearly articulated or reasonably inferenced from the scope language.

[00:20:37] Speaker 02:
There's nothing in the scope language that suggests that stamping to a point is the type of further processing that was intended to be exclusionary.

[00:20:51] Speaker 03:
Mine is not a legal question.

[00:20:53] Speaker 05:
I forgot what I was going to ask.

[00:20:57] Speaker 03:
All right.

[00:20:58] Speaker 03:
Non-legal question.

[00:20:59] Speaker 03:
How do you stamp a point?

[00:21:01] Speaker 03:
I'm thinking, is it like a cookie cutter that slices off, but then you get something that doesn't yet look like a point, and then you turn it?

[00:21:13] Speaker 02:
I'm not sure the answer to that question.

[00:21:15] Speaker 02:
The answer is I'm not sure.

[00:21:17] Speaker 02:
I believe that the scope ruling request does explain the process.

[00:21:23] Speaker 05:
What I was going to ask was, so what's our standard of review with respect to the scope order?

[00:21:31] Speaker 05:
because it seems to me the only issue here is whether there's an exception under Bending.

[00:21:38] Speaker 02:
Well, I mean, Commerce's scope ruling is reviewed for substantial evidence and in accordance with law.

[00:21:45] Speaker 02:
So to the extent that there is any sort of

[00:21:50] Speaker 02:
interpretation that commerce engaged in and looking at the definitions of bending and straight.

[00:21:56] Speaker 02:
That was for commerce to do in the first instance.

[00:21:59] Speaker 05:
Do we owe any deference to any interpretation that commerce has made of its own scope order?

[00:22:05] Speaker 02:
Yes, this court has repeatedly said that it owes significant deference to commerce's interpretation.

[00:22:11] Speaker 02:
What cases stand for that?

[00:22:15] Speaker 02:
But global commodity, for example, the court uses the term significant deference, I believe also in

[00:22:20] Speaker 02:
Sandvik.

[00:22:27] Speaker 02:
I think this court has said that several times.

[00:22:29] Speaker 02:
And of course, the court also, as commerce does, has to begin with the plain language of the order.

[00:22:35] Speaker 03:
But do you see, suppose that in the pending Supreme Court case, Kaiser

[00:22:42] Speaker 03:
There is some cutback on deference to agency pronouncements about the meaning of their formally promulgated documents.

[00:22:54] Speaker 03:
What would be the status of the scope ruling?

[00:23:00] Speaker 03:
Would that be because it's an authorized procedure under 225 or 225k or 255k or something that that might still warrant deference?

[00:23:11] Speaker 03:
I guess depending on the scope of any cutback in Kaiser that results.

[00:23:18] Speaker 02:
I don't think there was anything that commerce did here that required it to interpret regulations that it considered to be ambiguous.

[00:23:26] Speaker 02:
Commerce followed its properly promulgated scope regulations.

[00:23:31] Speaker 02:
And so I think that that would still be lawful.

[00:23:36] Speaker 02:
And I don't think that would present an issue.

[00:23:38] Speaker 05:
OK, you're into the three minutes of your colleague.

[00:23:41] Speaker 05:
Thank you.

[00:23:44] Speaker 05:
Mr. Shane, will we restore you back to three minutes?

[00:23:52] Speaker 00:
Good morning, Your Honors.

[00:23:53] Speaker 00:
I'm Jack Shane of Wiley-Ryne, here to speak briefly on behalf of Defendant Eppley.

[00:23:59] Speaker 04:
So would regular old rebar be construction equipment?

[00:24:05] Speaker 04:
I thought the sledgehammer might be.

[00:24:08] Speaker 00:
My view is it shouldn't be interpreted as equipment.

[00:24:11] Speaker 00:
I agree with you.

[00:24:11] Speaker 00:
I think it's materials used in construction.

[00:24:16] Speaker 04:
And the same thing in agriculture.

[00:24:19] Speaker 00:
That's correct.

[00:24:19] Speaker 00:
I mean, I would argue that Cayden did not argue below that its product was farm equipment before commerce.

[00:24:25] Speaker 00:
It never made that argument.

[00:24:27] Speaker 00:
It only made that later in the appeals process.

[00:24:31] Speaker 05:
Is there any evidence in the record that demonstrates that the pointed end of the rebar is made by a process other than stamping?

[00:24:40] Speaker 00:
Not that I'm aware of.

[00:24:41] Speaker 05:
OK, so you're experienced in representing the steel

[00:24:46] Speaker 05:
the steel industry.

[00:24:47] Speaker 05:
Am I correct that one way to bend a bar is through stamping?

[00:24:54] Speaker 00:
I guess that is one way if a bar is straight and you're bending the entire length.

[00:24:58] Speaker 05:
Why would not the stamping in this case be constituted bending?

[00:25:02] Speaker 00:
Because as Commerce said,

[00:25:07] Speaker 00:
You should not just focus on the point, one point on the bar, the end of it that is pointed.

[00:25:14] Speaker 00:
That does not change the fact that you have a straight line going from the tip of the rebar to the center of the butt end.

[00:25:21] Speaker 00:
That is straight.

[00:25:23] Speaker 00:
And commerce found that a reasonable interpretation is that that bar is not bent.

[00:25:29] Speaker 04:
And in any case, if that were true, then 180 degree cut at any point

[00:25:36] Speaker 04:
on the rebar length with constant bending it because you've got an angle on it.

[00:25:41] Speaker 00:
Sure.

[00:25:41] Speaker 00:
Well, as your honors pointed out, I mean, you have ridges on the bar as well.

[00:25:44] Speaker 00:
That doesn't mean it's bent, you know, that it's not straight.

[00:25:47] Speaker 00:
I mean, that's rebar.

[00:25:48] Speaker 00:
It's specifically, you know, covered in the scope.

[00:25:53] Speaker 00:
It has ridges, right?

[00:25:54] Speaker 00:
If it's plain, it's outside the scope by the scope's terms.

[00:26:00] Speaker 04:
And honestly, you know, from my viewpoint,

[00:26:04] Speaker 04:
If you want to use, the agricultural people would have a reason to either use plain or ridge.

[00:26:11] Speaker 04:
maybe depending on whether they want to grip the earth or whatever.

[00:26:15] Speaker 04:
Sure.

[00:26:15] Speaker 00:
And to your point, Your Honor, earlier, and we've said this below before commerce, there is nothing about this rebar, these agricultural training stakes, that would prevent it being used as a rebar.

[00:26:29] Speaker 00:
It has ridges.

[00:26:31] Speaker 00:
The only difference is it has a point on one end.

[00:26:33] Speaker 00:
The physical characteristics of this product are rebar, the cadence itself

[00:26:38] Speaker 04:
In its scope ruling request called this steel concrete reinforcing bar or something's laying a pad for a new farm And they want to grab a couple of those things because they run out of rebar.

[00:26:49] Speaker 00:
They certainly Absolutely.

[00:26:50] Speaker 00:
I mean as you said I mean it's this still has ridges right the point of the ridges is to adhere to the concrete and Reinforce the concrete the fact that it has a small point on one end does not negate the fact that it can be used as rebar and I'm exerting anything on the out on the record that suggests otherwise and

[00:27:06] Speaker 05:
Okay, you're over your time right now.

[00:27:08] Speaker 00:
Thank you, Your Honor.

[00:27:13] Speaker 05:
You have two minutes.

[00:27:15] Speaker 01:
Thank you.

[00:27:16] Speaker 01:
With regard to the issue of merchant bar, in Commerce's final scope ruling, they actually cited the definition of merchant bar in saying that these products were out of scope.

[00:27:26] Speaker 01:
So they actually said that Quidan's agricultural training stakes fit the description of merchant bar.

[00:27:33] Speaker 01:
This is on APPX 143.

[00:27:35] Speaker 01:
In the final scope ruling.

[00:27:37] Speaker 01:
Is that the footnote?

[00:27:39] Speaker 01:
Yes.

[00:27:40] Speaker 03:
But that was a simple and, I think, undisputed mistake.

[00:27:43] Speaker 01:
I don't know.

[00:27:44] Speaker 01:
That was a disputed mistake.

[00:27:45] Speaker 01:
We did raise that in our briefs.

[00:27:47] Speaker 01:
No, no, no, no.

[00:27:48] Speaker 03:
I'm sorry.

[00:27:48] Speaker 03:
I thought that commerce, the people sitting at that table all agree that that was just a screw up in the commerce order.

[00:27:54] Speaker 01:
They may say that now during litigation, but Commerce's scope ruling is not supported by substantial evidence because it actually says that the description of the merchandise under consideration also comports with the physical description included in the ITC Second Sunset Review and then the footnote cites bars with round, square, flat, angled and channeled cross-sections and used by fabricators and manufacturers to produce a variety of products, which includes farm equipment.

[00:28:22] Speaker 01:
So in one place they're saying that we match the description of merchant bar, and then in the later section they're saying that we don't.

[00:28:29] Speaker 01:
That decision is not supported by substantial evidence.

[00:28:32] Speaker 01:
Commerce and petitioners want to basically ignore the plain language of concrete, which is in the plain language of the order of the scope.

[00:28:41] Speaker 01:
They want to ignore concrete, and the fact that the only use talked about anywhere in the K1 materials is the end use of concrete.

[00:28:48] Speaker 01:
The ITC also, sorry, Commerce's decision was just simply not based on substantial evidence.

[00:28:57] Speaker 01:
They ignored end use, that after further processing, this would no longer be used for concrete reinforcing products, and they extended this case four times.

[00:29:05] Speaker 01:
It took over 200 days to make a decision because it was so complex.

[00:29:09] Speaker 04:
We would submit that their decision- Isn't that boilerplate language every time they extend?

[00:29:14] Speaker 01:
The regulations say that these decisions need to be made in 45 days.

[00:29:18] Speaker 01:
And they did not need to say that because it was so complex.

[00:29:21] Speaker 04:
When they extend it, do they ever not say it's complex?

[00:29:24] Speaker 01:
They could just say, we have good cause to extend.

[00:29:27] Speaker 01:
So because they themselves acknowledged that this was a complex case, we submit that either that the K1 order factors are dispositive, that the product is out of scope, or that the Commerce Department should have initiated.

[00:29:40] Speaker 01:
Thank you very much.

[00:29:41] Speaker 05:
We thank the party for the arguments.