[00:00:00] Speaker 03:
Shen Yang, aluminum versus the United States.

[00:00:04] Speaker 03:
We understand you're splitting the time this morning.

[00:00:08] Speaker 03:
Do you have different arguments, or are you just going to tell us the same thing?

[00:00:12] Speaker 05:
Yes.

[00:00:13] Speaker 05:
I'm Arthur Purcell.

[00:00:13] Speaker 05:
It's Alan Travis.

[00:00:14] Speaker 05:
I'm representing Shen and Helen, and I'll be handling the standing issues in the United States and the United States.

[00:00:24] Speaker 03:
Pleased to see you.

[00:00:30] Speaker 05:
Good morning.

[00:00:31] Speaker 05:
Appellates in this case have both statutory standing and Article III standing.

[00:00:37] Speaker 05:
This is all laid out in our briefs, but what I really want to highlight here is the importance and the nature of the statutory grant of standing in this case under 2631C, which grants direct parties standing on a particular class of parties, importers, exporters, those parties that produce the merchandise.

[00:00:59] Speaker 05:
This is important because it's so specific and addresses... What is going to be resolved here?

[00:01:09] Speaker 03:
It's not your products that are the subject of the scope determination that's at issue, right?

[00:01:15] Speaker 03:
So it's just someone else's products and not yours, which will be directly affected, correct?

[00:01:21] Speaker 05:
No, I don't agree with that.

[00:01:23] Speaker 05:
Scope reviews and determinations cover a class or kind of product.

[00:01:28] Speaker 05:
that's raised by the person.

[00:01:31] Speaker 05:
Somebody requests a scope.

[00:01:33] Speaker 05:
They say that we want the commerce to determine whether our product or a particular class of products is going to be covered by the scope or not.

[00:01:42] Speaker 05:
We import, or the appellants in this case, import that class or kind of product which is occurring.

[00:01:48] Speaker 03:
So what happens, let's assume you have scanning and we affirm.

[00:01:53] Speaker 03:
Are your products automatically then covered?

[00:01:57] Speaker 03:
by the results in this case?

[00:02:00] Speaker 05:
Because they are the same type of product, they should be covered by it.

[00:02:06] Speaker 05:
Or the determination by commerce on the scope will apply to the products.

[00:02:10] Speaker 05:
Our products don't.

[00:02:11] Speaker 03:
Is there going to have to be a new scope determination, a new determination made by commerce with respect to your products?

[00:02:18] Speaker 03:
No, not necessarily.

[00:02:20] Speaker 03:
What does that mean, not necessarily?

[00:02:21] Speaker 03:
Yes or no?

[00:02:23] Speaker 05:
The scope determination provides clarity

[00:02:26] Speaker 05:
to importers who are bringing in the classic kind of merchandise in this case.

[00:02:30] Speaker 05:
That determination will be applied to the products of appellants.

[00:02:35] Speaker 03:
Automatically applied as a result of the disposition and misappear?

[00:02:40] Speaker 05:
There's always a possibility that for some reason they may or may not.

[00:02:45] Speaker 05:
But the absolute certainty as to the application really doesn't go to standing.

[00:02:50] Speaker 05:
That really goes to the merits of the case.

[00:02:52] Speaker 03:
Can I just ask you about this cash deposit question, which you reference in your briefs?

[00:02:57] Speaker 03:
You say substantial cash deposits.

[00:03:00] Speaker 03:
Is that still going on, or has that been rescinded as a result of the clarification of the instruction?

[00:03:06] Speaker 05:
As far as I know, it'll still go on.

[00:03:09] Speaker 03:
It's going on now.

[00:03:10] Speaker 03:
So you are paying cash deposits.

[00:03:12] Speaker 05:
Yep.

[00:03:12] Speaker 05:
That's my understanding that cash deposits are still being paid.

[00:03:16] Speaker 05:
And liquidation has been suspended.

[00:03:17] Speaker 05:
So this determination, once applied to our clients,

[00:03:23] Speaker 05:
We'll have that impact.

[00:03:26] Speaker 06:
Can I ask you something?

[00:03:29] Speaker 06:
You're the Zhang Ho?

[00:03:30] Speaker 06:
Yes, correct.

[00:03:31] Speaker 06:
So in your complaint, which is at 590 of the appendix, you say as a result of Commerce's March 27, 2014 ruling, scope ruling, Zhang Ho's curtain wall systems and curtain wall units are now subject to the aluminum extrusion orders.

[00:03:50] Speaker 06:
That seems to me to be a

[00:03:53] Speaker 06:
simple and definitive concession that if the scope ruling, unless it's been materially changed since the March 27, 2014 version, will, in fact, make you subject to the two orders.

[00:04:09] Speaker 05:
Yes, that's our understanding.

[00:04:11] Speaker 05:
That will.

[00:04:12] Speaker 05:
That determination will.

[00:04:15] Speaker 05:
The liquidation of the entries have been suspended.

[00:04:18] Speaker 05:
There's an instruction.

[00:04:19] Speaker 06:
So I think I just want to pick up on something, but I think

[00:04:23] Speaker 06:
It feels to me like you're trying to leave a little bit of wiggle room.

[00:04:28] Speaker 06:
And I want to understand if there's any wiggle room at all, or if this is a concession that an affirmance of this order will mean that you must pay these duties.

[00:04:42] Speaker 05:
An affirmance of the order, whether there's any, I don't believe there's any wiggle room.

[00:04:48] Speaker 05:
I don't see it.

[00:04:52] Speaker 05:
I believe it'll require us to pay.

[00:04:56] Speaker 06:
And just to follow up on the procedural point.

[00:05:03] Speaker 06:
So you filed your separate complaint, 107, and your colleagues in 108, and Yuanda in 106.

[00:05:10] Speaker 06:
And then in July of 2014, there was a consented to consolidation, which is why this is captioned Consolidated Case 106.

[00:05:18] Speaker 06:
And then as I understand it, the docket sheets in the two other cases show the cases being closed simply by the filing of the judgment and the order of December 2017.

[00:05:31] Speaker 06:
And the judgment includes, in the last paragraph, a direction that the merchandise that was covered by the December 2014

[00:05:44] Speaker 06:
preliminary injunctions shall be liquidated in accordance with these orders.

[00:05:49] Speaker 05:
Yes.

[00:05:49] Speaker 06:
That includes your merchandise.

[00:05:50] Speaker 06:
Correct, it does.

[00:05:51] Speaker 05:
And that motion to consolidate was the government's motion.

[00:05:55] Speaker 05:
And I believe in doing that, it's a recognition that this is all the same product, and that consolidating these cases makes sense because it's going to impact them.

[00:06:05] Speaker 05:
See, Congress, when it wrote this statute, recognized that people that import like merchandise are going to be impacted.

[00:06:14] Speaker 05:
or likely to be impacted.

[00:06:15] Speaker 05:
It doesn't have to be 100%.

[00:06:17] Speaker 05:
I guess that's what I'm getting at maybe with the wiggle room.

[00:06:19] Speaker 05:
Our showing for standing doesn't have to be 100%.

[00:06:21] Speaker 05:
It has to show that it's redressable.

[00:06:25] Speaker 06:
I wasn't actually asked about whether it had to, what you had to say, but what you in fact did say, and I think there's a comparable sentence in paragraph three of the Perma Steele Lisa complaint, where it seems to me you do say,

[00:06:41] Speaker 06:
that again you were talking about the original scope ruling of March 2014 and unless something has changed between those two things you have in fact alleged and it seems to me you're bound by the allegation that the anti-dumping and countervailing duty orders will in fact apply.

[00:07:00] Speaker 05:
Yes and to your point nothing has changed in this case.

[00:07:03] Speaker 03:
So nothing I don't remember the exact time frame of all of this but this

[00:07:07] Speaker 03:
kerfuffle over the instructions and then the clarification of paragraph three.

[00:07:14] Speaker 03:
That has nothing to do with anything, right?

[00:07:17] Speaker 05:
Well, I think that was an effort by the government to try to limit its application in some way or other.

[00:07:22] Speaker 05:
But it applies.

[00:07:25] Speaker 05:
It doesn't really matter what the government says in terms of how their scope will apply or not.

[00:07:30] Speaker 05:
They don't really get to control this court's jurisdiction by those statements.

[00:07:33] Speaker 05:
It applies or it doesn't apply if it's

[00:07:37] Speaker 05:
subject merchandise, which is the class of kind of merchandise.

[00:07:40] Speaker 05:
And the ruling applies to, discoverably, applies to that class of kind of merchandise.

[00:07:46] Speaker 05:
We have standing to challenge that.

[00:07:48] Speaker 05:
OK.

[00:07:48] Speaker 05:
Why don't we hear from you, Sam?

[00:07:50] Speaker 05:
I'm over my time.

[00:07:51] Speaker 03:
Thank you.

[00:08:01] Speaker 03:
Good morning.

[00:08:02] Speaker 03:
Good morning.

[00:08:07] Speaker 01:
May it please the court.

[00:08:08] Speaker 01:
My name is Emily Lawson, and I'm here today on behalf of the appellants.

[00:08:12] Speaker 01:
This case is about e-commerce scope discrimination in the orders of aluminum extrusions from China.

[00:08:18] Speaker 01:
And I am saying that because the appellants are not aluminum extruders.

[00:08:24] Speaker 01:
They are, like the petitioner, they design and manufacture curtain wall.

[00:08:28] Speaker 01:
So what is specifically at issue here is the scope ruling that confirms where they ask commerce to confirm that

[00:08:36] Speaker 01:
complete curtain wall units were imported under a supply contract for a complete curtain wall system were excluded as a finished goods kit or as a finished good.

[00:08:48] Speaker 01:
We believe that the issues stem here from the plain language of the scope of the orders and appellant's position rests on commerce's misconstruction or misapplication of this finished goods test or the finished goods scope exclusion language and

[00:09:04] Speaker 01:
that is inconsistent with the practice when they found other products excluded under the finished goods kit.

[00:09:12] Speaker 01:
Also, Commerce has failed to consider very important aspects of the problem concerning the record evidence about what is finished is the curtain wall and that it is assembled as is as a finished good.

[00:09:27] Speaker 01:
In addition, we believe that they've ignored what is

[00:09:31] Speaker 01:
information that they have to consider under the regulation, specifically language in the petition that provided as an example that the unitized unassembled curtain wall would be excluded as a finished goods kit.

[00:09:49] Speaker 06:
Just to clarify one thing, am I understanding correctly that the duties that are applied are applied only basically to the aluminum portions and not to the glass portions of these units?

[00:10:00] Speaker 01:
The scope provides that it is just the aluminum extrusions are to be covered.

[00:10:05] Speaker 01:
And that if you look at the exact scope language, there is that qualification.

[00:10:09] Speaker 01:
OK.

[00:10:09] Speaker 06:
I assume that reduces the number that you're multiplying, whatever the percentage is, against fairly serious?

[00:10:18] Speaker 01:
It would only apply to the aluminum extrusions in this case, would be that this product has aluminum extrusion frames.

[00:10:25] Speaker 06:
And the units that you are actually importing includes the glass?

[00:10:28] Speaker 01:
Yes.

[00:10:29] Speaker 01:
They're prefabricated type units, and that they include glass.

[00:10:35] Speaker 01:
And they are finished, as we will explain here too, but to be hung on the side of the building, which forms the whole curtain wall structure at the time of import.

[00:10:52] Speaker 06:
I guess I'm trying to understand what you think the scope of our decision last time

[00:10:57] Speaker 01:
Yeah, no, that's a good question.

[00:11:00] Speaker 06:
Thank you for that question.

[00:11:01] Speaker 06:
Is it essentially that the entire cladding of a 76-story building is a curtain wall, and if something less than that comes in, it's not the finished product?

[00:11:13] Speaker 01:
Well, as appellants have said in our brief, this court has ruled on what is a curtain wall decision of commerce.

[00:11:28] Speaker 01:
We submit commerce looked at what was a curtain wall unit or part that was not what we would consider the complete curtain wall to be the entire building.

[00:11:42] Speaker 01:
And this is the case because commerce specifically declined to consider that issue.

[00:11:49] Speaker 01:
They said that in their scope ruling, as well as the trial court acknowledging that was the case.

[00:11:55] Speaker 06:
We're talking about what happened in the previous case?

[00:11:57] Speaker 06:
Yes.

[00:11:58] Speaker 01:
So they declined to look at that issue.

[00:12:00] Speaker 01:
They also said they were not considering what is the finished goods test.

[00:12:05] Speaker 01:
So appellants do not believe that the court's prior ruling has any bearing on this case.

[00:12:12] Speaker 06:
It certainly did not decide the kit question.

[00:12:15] Speaker 01:
It did not.

[00:12:16] Speaker 06:
But didn't it pretty clearly indicate that the curtain wall is the whole building cladding and from which it would seem now to follow that importation of less, whatever else it is, is not importation of a kit that contains

[00:12:39] Speaker 06:
the end product because it doesn't contain the whole building cladding.

[00:12:44] Speaker 01:
Yes, that is what the government is arguing.

[00:12:48] Speaker 01:
What Appellants would say is that what Commerce has considered to be a finished goods kit under the scope language also includes what is a sub-assembly finished goods kit.

[00:13:04] Speaker 01:
They have looked at that language

[00:13:06] Speaker 01:
and found that in scaling back what they determined is the finished good or finished good kit, they may find that a product that is a sub-assembly that is otherwise finished that is not a complete product may be excluded.

[00:13:25] Speaker 01:
And they implemented this test so as to avoid absurd results

[00:13:30] Speaker 01:
or unreasonable ones, where they would have to require something that.

[00:13:36] Speaker 06:
Like saying the whole 76-story building cladding has to come in at once.

[00:13:41] Speaker 01:
At once.

[00:13:42] Speaker 01:
And the example, I guess, was in the ruling when they established this was a fire truck.

[00:13:50] Speaker 01:
So it was a valve component of that fire truck.

[00:13:52] Speaker 01:
And they said, for us to say that, to interpret the scope, to say the whole fire truck has to be the finished good is unreasonable.

[00:14:00] Speaker 01:
Also, we would say, going back and looking at the scope language, there is no limitation or direction that it has to be in one shipment.

[00:14:11] Speaker 01:
So you can look at the segments of curtain wall, because this is all under a contract to be a full, complete good.

[00:14:21] Speaker 01:
So you can look at each segment of that as a sub-assembly, or the finished good, or you can look at

[00:14:30] Speaker 01:
the complete curtain wall because the scope language doesn't limit that it has to be imported in one shipment.

[00:14:38] Speaker 06:
And what is your position on what the sub-assembly is here?

[00:14:44] Speaker 01:
The sub-assembly was we provided that it would be at least two or more of the curtain wall because these are

[00:14:59] Speaker 01:
sold and imported as a full project subject to the contract, they would have to be shipped in segments.

[00:15:13] Speaker 01:
And because they can't all be shipped at one time to complete a wall, a side or a building or a section.

[00:15:21] Speaker 01:
So we would say that it's anything more than a single, yeah.

[00:15:27] Speaker 06:
Did the trial court here rely on some facts over and above the fact that you didn't have a complete cladding, namely various kinds of attachment devices, caulking, I forget what, you know, gaskets that were not in the same package and therefore regardless of what the sub-assembly unit is, it doesn't meet the requirement of the kit

[00:15:57] Speaker 06:
exception to the exclusion, because not everything is in the box.

[00:16:04] Speaker 01:
Thank you for that question.

[00:16:06] Speaker 01:
What the court looked at and what is the department's, what is their third re-determination in this case is that, sorry, I lost my train of thought there.

[00:16:23] Speaker 06:
I guess I'm just trying to focus on whether we really have to decide something as broad as you need the whole wall in one ship, or whether this particular ruling relies on there's stuff missing from the particular shipments, even for hanging two of the panels.

[00:16:45] Speaker 01:
Well, what we would say is that first off, this is, again, a full

[00:16:53] Speaker 01:
It is everything for a full contract, or for a full curtain wall, because it is under contract.

[00:17:00] Speaker 01:
So everything will be shipped for that finished good.

[00:17:04] Speaker 01:
What Commerce, and I think your question is, they had emphasized what would be what they considered or what they claimed to be additional parts.

[00:17:14] Speaker 01:
or finishing that would remove or they found that these products wouldn't satisfy under the sub-assemblies test.

[00:17:22] Speaker 01:
And that would be what they're referring to as part two of the sub-assemblies test.

[00:17:26] Speaker 01:
And appellant's position is that those are post, I guess, the finishing, not finishing, but how they are adjusted to the building and not something that is completed for,

[00:17:44] Speaker 01:
or reworked of the actual material itself.

[00:17:48] Speaker 01:
And I think if you look at the scope language that informs the court on what is the actual standard in the sub-assemblies test.

[00:17:58] Speaker 06:
What do you want me to look at?

[00:18:01] Speaker 06:
Yeah, I'll see.

[00:18:04] Speaker 06:
All right.

[00:18:04] Speaker 06:
By JA page is the only way I'm going to find it.

[00:18:13] Speaker 01:
I don't have that JPAGES in front of me, but if you do look at the Commerce's third redetermination, which is just past the first slip-off, they recite the full scope there.

[00:18:43] Speaker 06:
You have at least an internal page number, like a page number of the third.

[00:18:47] Speaker 06:
This is the January 2017 final, final, final commerce ruling.

[00:19:13] Speaker 06:
And so are we looking at their quote from the original orders that subject aluminum exclusions may be described at the time of importation as blah blah blah blah and ending with subject kits?

[00:19:37] Speaker 01:
I would say, yes, what we are referring to here in talking about the second part of the subassemblies test is, and this would be the subassemblies test if you're considering the subassemblies of finished goods, but it is also the finished goods test, the same rule applies.

[00:19:56] Speaker 01:
This is the language that is in, I guess, the seventh paragraph.

[00:20:05] Speaker 01:
And it begins where it talks about the scope also excludes finished merchandise.

[00:20:13] Speaker 01:
And within that paragraph, and I can let you find that, they do have the definition of what a finished goods kit is.

[00:20:22] Speaker 01:
And what we're saying is, in looking at this, that what is the emphasis is the sentence where it says that the

[00:20:40] Speaker 01:
It's understood to mean the combination of parts to assemble a finished good, but it is assembled as is into a finished product.

[00:20:53] Speaker 01:
So I think the emphasis of being assembled as is means you're looking at what the article is to install it and not the actual installation operations.

[00:21:09] Speaker 01:
the appellants that provide our brief, this is what commerce is focusing on to say that this article or this merchandise is not passing that second part of the subassemblies test.

[00:21:21] Speaker 01:
And I think if you take their conclusion or their finding there to its full application, I think you could read that to say,

[00:21:36] Speaker 01:
Anything short, not only of an assembled curtain wall, fully assembled already at the time of import, but that is, in looking at the factors they consider that are additional finishing components, that is weatherized and operations that go to making adjustments, but not to the assembly or discounting the assembled

[00:22:06] Speaker 01:
So if you follow commerce reasoning, the only thing that could be shipped is something that's completely assembled and weatherized, which is absurd in what is the reason why they established the subassemblies test to allow for goods that are less than the final downstream finished good.

[00:22:34] Speaker 03:
Thank you.

[00:22:34] Speaker 03:
We'll reserve a little time for rebuttal.

[00:22:40] Speaker 03:
Please proceed.

[00:22:47] Speaker 00:
Good morning.

[00:22:49] Speaker 00:
Chief Judge Prost, and may it please the court.

[00:22:53] Speaker 00:
Zhang Ho and Permastilisa do not possess Article III standing to challenge the Uwanda scope ruling, because the Uwanda scope ruling, by its very terms,

[00:23:04] Speaker 00:
does not apply to Janhoe and Permis Delisa.

[00:23:07] Speaker 00:
It applies to Uwanda only, based on Uwanda's contract, Uwanda's technical drawings, and Uwanda's import documentation.

[00:23:17] Speaker 00:
It applies only to Uwanda, and Uwanda did not appeal.

[00:23:21] Speaker 03:
Well, how do you explain then that they're called co-plaintiffs in this case, right?

[00:23:26] Speaker 00:
That's right.

[00:23:27] Speaker 00:
They brought their own... Janhoe and Permis Delisa filed their own complaints, which were then

[00:23:33] Speaker 00:
consolidated into the Iwanda case.

[00:23:35] Speaker 00:
And at that point, this issue was not really front and center because the Supreme Court, such as in the town of Chester and that line of cases, has held that there's a one plaintiff rule.

[00:23:48] Speaker 00:
That as long as one plaintiff is in the case who possesses Article III standing, it doesn't matter that there are other parties tagging along, either as plaintiffs, co-plaintiffs, interveners, what have you.

[00:24:03] Speaker 00:
So this issue was not front and center before the trial court.

[00:24:08] Speaker 03:
But they had their own complaints, and they were all consolidated.

[00:24:12] Speaker 03:
So their complaints were before the trial court, right?

[00:24:16] Speaker 00:
That's right, Your Honor.

[00:24:18] Speaker 00:
But the three complaints all challenged the same scope ruling based on the same record.

[00:24:24] Speaker 00:
So it made perfect sense for the trial court to consolidate those three cases.

[00:24:29] Speaker 02:
But you're not saying that our decision, whatever it is,

[00:24:33] Speaker 02:
would not bind imports of like products from then on.

[00:24:39] Speaker 02:
Is that your point?

[00:24:41] Speaker 00:
The commerce decision pertains.

[00:24:44] Speaker 02:
Our decision.

[00:24:45] Speaker 00:
This court's decision would certainly be convenient for Zhang Ho and Permis Delisa to concede that

[00:24:57] Speaker 00:
This case would bind their companies, but I heard a fair amount of tap dancing.

[00:25:01] Speaker 02:
You're saying unless they concede, it's not binding?

[00:25:04] Speaker 02:
A final decision on the issue?

[00:25:07] Speaker 00:
Such a concession would be convenient, but inaccurate.

[00:25:11] Speaker 03:
And the reason it's inaccurate is because Jang Ho and Permastilisa... Well, their complaints, just to clarify for me, weren't there complaints about their products?

[00:25:24] Speaker 00:
Your Honor, that is their argument, but

[00:25:27] Speaker 00:
It's just not accurate.

[00:25:29] Speaker 00:
Commerce specific.

[00:25:30] Speaker 03:
Well, how could they bring a complaint about somebody else's products?

[00:25:35] Speaker 03:
You're suggesting that all of this was just about one set of products and it was not theirs.

[00:25:39] Speaker 03:
In other words, you're saying they shouldn't have been allowed to be plaintiffs in the first instance.

[00:25:44] Speaker 00:
Your Honor, if we were being particular about it,

[00:25:51] Speaker 00:
You're absolutely right, Your Honor.

[00:25:52] Speaker 00:
We should have moved to dismiss.

[00:25:55] Speaker 06:
I'm sorry.

[00:25:55] Speaker 06:
Just look at, say, Zhang Ho's complaint at 590 of the appendix.

[00:25:59] Speaker 06:
There's a section, starting in paragraph 3, standing of the plaintiff.

[00:26:04] Speaker 06:
Plaintiff, that's Zhang Ho, not Yuanda, produces curtain wall systems and curtain wall units in China and imports them into the US.

[00:26:12] Speaker 06:
That refers to the scope request of Yuanda Commerce found that considered

[00:26:17] Speaker 06:
curtain wall units subject to the duties as a result of commerce's scope ruling, Jang Ho's curtain walls, not Euanda's, Jang Ho's curtain wall systems and curtain wall units are now subject to the aluminum extrusions orders.

[00:26:32] Speaker 06:
Isn't that just a flat, no wiggle room concession that their products are in fact now going to be dutyable under the scope ruling that they challenge?

[00:26:47] Speaker 06:
And if that's true, which of the three standard Article III standing elements is missing?

[00:26:53] Speaker 06:
They're injured, it's traceable to the scope ruling, and it'll be fixed if the scope ruling is overturned.

[00:27:01] Speaker 00:
I understand your question, Your Honor, and it would certainly be convenient for us to accept that as a so-called concession.

[00:27:06] Speaker 00:
The problem that we have as a principled matter is that that so-called concession mischaracterizes what commerce has done.

[00:27:17] Speaker 00:
Commerce went out of its way to expressly state it was making no finding with respect to Jang Ho and Permastilisa's merchandise.

[00:27:28] Speaker 00:
Now, they allege that their merchandise is the same in the complaint and throughout this proceeding, but commerce made no such finding and the trial court never considered that question.

[00:27:39] Speaker 03:
So what Jang Ho- And partly because you never raised it or challenged what appears to be a straightforward concession.

[00:27:47] Speaker 00:
Your honor, but it was never, we're calling it a concession, but it was never alleged.

[00:27:54] Speaker 00:
It was never found.

[00:27:55] Speaker 06:
I just read the allegation.

[00:27:56] Speaker 06:
It's right in the complaint, paragraph three of each of the complaints.

[00:27:59] Speaker 00:
I'm sorry.

[00:27:59] Speaker 06:
The government has never, normally- Are you saying that even though they say, we really would love to pay these duties, you're going to say, no, no, we need a proceeding because maybe you don't have to.

[00:28:11] Speaker 06:
Is that what you're saying?

[00:28:13] Speaker 00:
What I'm saying, your honor, is that it remains for another day.

[00:28:16] Speaker 00:
another administrative proceeding is going to be necessary to determine whether or not duties will be imposed.

[00:28:24] Speaker 03:
Are they paying cash deposits now?

[00:28:28] Speaker 00:
Your honor, that's not in the record.

[00:28:30] Speaker 00:
And I don't have that information.

[00:28:32] Speaker 00:
But based on the reference, I don't have any reason to doubt the representation.

[00:28:36] Speaker 03:
OK, so they're paying cash deposits.

[00:28:38] Speaker 00:
They very well may be.

[00:28:39] Speaker 00:
Why?

[00:28:40] Speaker 03:
They're not involved in this case.

[00:28:43] Speaker 00:
In our retrospective system of

[00:28:45] Speaker 00:
payment of duties, there are cash deposits, which are without prejudice to a final determination at liquidation as to whether duties are owed.

[00:28:55] Speaker 00:
Those cash deposits may be refunded.

[00:28:57] Speaker 03:
Are you going to refund these right after this case, no matter what happens here?

[00:29:01] Speaker 03:
I mean, if we were to say they don't have standing and dismiss for lack of jurisdiction, do those cash deposits get automatically refunded at the time?

[00:29:09] Speaker 00:
That's the very question, Your Honor.

[00:29:11] Speaker 00:
We don't know because there's another

[00:29:15] Speaker 03:
an administrative determination that is yet to come, that... Right, and we actually, by coincidence, had a case yesterday that involved this retrospective clawing back and keeping the cash deposits, which I assume may be what happens here.

[00:29:32] Speaker 03:
Even if you did another administrative ruling, you'd continue to take cash deposits and say, well, you lost at the end, so we get to keep that money.

[00:29:42] Speaker 00:
Well, there is currently pending before the CIT, the Court of International Trade, a ruling.

[00:29:51] Speaker 00:
This is only specific to Jang Ho's products, not permissive leases.

[00:29:56] Speaker 00:
But Commerce made a ruling that specific to Jang Ho's products, after a review of Jang Ho's information, there was a failure to cooperate.

[00:30:10] Speaker 00:
commerce made a determination, in part based on adverse facts available, that Zhang Ho's merchandise was subject to the orders.

[00:30:19] Speaker 00:
That is pending before the CIT, a challenge to that commerce determination.

[00:30:24] Speaker 00:
That's not before the court.

[00:30:25] Speaker 00:
What Zhang Ho and Permis DeLisa are asking this court to do, this court of appeals to make fact findings based on a record that commerce itself in this proceeding

[00:30:38] Speaker 00:
said is insufficient to answer the question of whether Jang Ho and Permis Delisa are subject to the duties.

[00:30:45] Speaker 06:
Do I understand right that the final judgment of the CIT in this case, the last paragraph, does actually command liquidation of their products according to this scope ruling?

[00:30:59] Speaker 00:
Yes, it does, Your Honor.

[00:31:00] Speaker 06:
So how do they not have standing to challenge that?

[00:31:05] Speaker 00:
Well, they requested that, first of all.

[00:31:07] Speaker 00:
And they requested their own preliminary injunction, which they shouldn't have received.

[00:31:13] Speaker 00:
They didn't have standing to request that belief.

[00:31:15] Speaker 06:
But now- Did you agree to it?

[00:31:18] Speaker 00:
Your Honor, the United States objected initially.

[00:31:22] Speaker 00:
And the trial court indicated it was not inclined to hear that objection.

[00:31:27] Speaker 00:
And this was before my time.

[00:31:29] Speaker 00:
But ultimately, that objection was withdrawn at the court's direction.

[00:31:35] Speaker 00:
And here we are.

[00:31:38] Speaker 00:
The fact that there was a PR, a preliminary injunction, and a final judgment that says liquidate in accordance with the decision, that just begs the question, will the decision have any concrete impact on Zheng He and Permis Delisa?

[00:31:55] Speaker 00:
We've got a commerce decision that says it doesn't apply to Zheng He and Permis Delisa.

[00:32:00] Speaker 00:
So we've got liquidation instructions.

[00:32:03] Speaker 00:
that are specific to Uwanda.

[00:32:05] Speaker 06:
If your view of the absence of Django and Permastilisa standing is right, should the final judgments in 107 and 108, the Django and Permastilisa cases be vacated?

[00:32:26] Speaker 06:
Because in your view, the court had no business ruling about

[00:32:32] Speaker 06:
liquidation or the applicability to those two plaintiffs of this scope really.

[00:32:41] Speaker 00:
Your honor, it wouldn't be the, the judgment in favor of the defendant.

[00:32:46] Speaker 00:
However, the, the injunctive portion of it ought to be vacated because the Zheng Ho and permissed Alisa did not have, did not possess article three standing to seek

[00:33:00] Speaker 00:
relief separate and apart from Uwanda.

[00:33:03] Speaker 03:
So if the injunction shouldn't have gone into effect, does that mean their cash deposits will be automatically refunded?

[00:33:10] Speaker 00:
No, Your Honor, because that is a separate administrative determination that has nothing to do with this proceeding.

[00:33:18] Speaker 03:
I thought it was related to the injunction, no?

[00:33:22] Speaker 00:
No, Your Honor.

[00:33:24] Speaker 00:
There is a separate decision.

[00:33:29] Speaker 00:
In the context of an administrative review, there's a separate commerce decision that pertains to Jang Ho's products.

[00:33:37] Speaker 00:
And that is the subject of litigation before the CIT.

[00:33:40] Speaker 00:
It may reach this court, but it's not before the court today.

[00:33:44] Speaker 00:
And that's our point.

[00:33:46] Speaker 06:
So why did you agree to consolidation if your view is that from the get-go, this scope ruling could not possibly be litigated by these two appellants?

[00:34:02] Speaker 00:
The late Judge Pogue indicated that he was not inclined to hear our standing arguments at that time, and so what we had

[00:34:10] Speaker 00:
were three complaints challenging.

[00:34:13] Speaker 06:
Did you raise them on paper, or is this all oral?

[00:34:16] Speaker 00:
This was at an oral hearing.

[00:34:23] Speaker 00:
Judge Pogue indicated that he was not inclined to hear the standing arguments at that time.

[00:34:28] Speaker 00:
So what we have were three complaints challenging the same scope ruling on the same administrative record.

[00:34:34] Speaker 00:
And it's standard practice for the government to move to consolidate those.

[00:34:38] Speaker 00:
And at that point,

[00:34:40] Speaker 00:
Uh, we principally litigated Yawanda's arguments.

[00:34:44] Speaker 00:
That was the crux of the entire case.

[00:34:48] Speaker 00:
Zhang Ho and Permis Delisa were weighing in.

[00:34:50] Speaker 00:
And I have no doubt that while arguing that their product is exactly the same, um, in the subsequent case, um, if, if this court dismisses for lack of jurisdiction, I have little doubt that they will find, uh, they will discover

[00:35:06] Speaker 00:
distinctions between their product and... Well, it seems to me what they said in their complaint is... I don't know.

[00:35:14] Speaker 06:
I can't think of a reason that's not abiding at admission.

[00:35:17] Speaker 06:
Your Honor... I may not be creative.

[00:35:19] Speaker 00:
I don't think there's judicial estoppel here because no one relied on that.

[00:35:24] Speaker 00:
No.

[00:35:25] Speaker 00:
The trial court never addressed it.

[00:35:27] Speaker 00:
We never litigated that question.

[00:35:29] Speaker 00:
The question of whether their product is the same is something that the trial court didn't look at, commerce didn't look at, and they're asking

[00:35:36] Speaker 00:
this court to make that fact-finding on the very record that commerce said was insufficient to make that determination.

[00:35:46] Speaker 03:
It's a little role reversal.

[00:35:47] Speaker 03:
It's odd, isn't it?

[00:35:48] Speaker 03:
It's a little role reversal.

[00:35:50] Speaker 03:
I mean, you're acting as if you're trying to save them from themselves, given the ability to preserve an argument that challenges what happened here.

[00:36:01] Speaker 00:
Your Honor, sometimes doing the right thing is not convenient.

[00:36:07] Speaker 00:
But we feel quite strongly about this.

[00:36:11] Speaker 00:
And it's important to note that this doesn't come up very often.

[00:36:17] Speaker 00:
It is true that the interested party statute is very broad.

[00:36:24] Speaker 00:
And in 99 cases out of 100, perhaps, the interested parties under the statute are going to possess Article III standing as well.

[00:36:35] Speaker 00:
It's only because of the particular circumstances in this case where Zhang, Ho, and Permastilisa, they're not affiliated with Uwanda, they're competitors.

[00:36:45] Speaker 00:
Zhang, Ho, and Permastilisa, they don't import Uwanda's merchandise.

[00:36:50] Speaker 00:
They didn't request their own scope ruling.

[00:36:53] Speaker 06:
So why is a doctor, assume that the scope ruling here says Uwanda's products, but it says the reason

[00:37:04] Speaker 06:
for these products being within the two duty orders are the following four things.

[00:37:12] Speaker 06:
Why might that not be enough for standing

[00:37:16] Speaker 06:
if they say, we have those four things, even though the specific, we're not subject in some adjudicatory sense to the Commerce Department's order, but the order has a broader effect than the bottom line judgment, if that's what you want to call it, for you on.

[00:37:36] Speaker 06:
Why would the three-part standing test not be satisfiable?

[00:37:44] Speaker 06:
That is, if we can get a reversal of the ruling that these four factors make the duties applicable, then we will quite likely benefit.

[00:37:55] Speaker 06:
Maybe not even a certainty, but certainty is not required for standing.

[00:37:59] Speaker 00:
Your Honor, the particulars of this case, Commerce's decision, was not made with broad applicability.

[00:38:06] Speaker 00:
You want to have made its scope request to benefit itself, not its competitors.

[00:38:11] Speaker 00:
You want to scope ruling was based on

[00:38:13] Speaker 00:
It's technical drawings.

[00:38:15] Speaker 00:
It's particulars of its contractual arrangements.

[00:38:19] Speaker 00:
It's import documentation.

[00:38:21] Speaker 00:
And that's what Commerce determined and made a conclusion based upon.

[00:38:26] Speaker 00:
Commerce did not have any of that evidence with respect to Zhang Ho and Permis Talisa.

[00:38:33] Speaker 06:
And so... Right, but standing is not a question for Commerce to decide.

[00:38:37] Speaker 06:
It's a question for the court to decide.

[00:38:39] Speaker 06:
And they come in and they say,

[00:38:40] Speaker 06:
Geez, those four characteristics we have as well.

[00:38:45] Speaker 00:
That's right.

[00:38:46] Speaker 06:
So they're injured because you want money from them.

[00:38:50] Speaker 06:
Traceable to the scope ruling because the scope rulings rationale is really, really likely to mean that those duties will, they will have to pay those duties.

[00:39:00] Speaker 06:
And if we can get the commerce department ruling reversed, then redress is likely.

[00:39:09] Speaker 00:
Their argument asked the court to assume its own jurisdiction because their argument that they make the same product and import it in the same way, that... But standing is always based on a set of assertions of facts.

[00:39:25] Speaker 06:
Yes.

[00:39:26] Speaker 06:
And at a pleading stage, you kind of take the facts as a given.

[00:39:29] Speaker 06:
And if you want to go beyond the pleading stage as a defendant, you have to contest those facts, which you didn't.

[00:39:35] Speaker 00:
Well, the...

[00:39:38] Speaker 00:
We have contested the question of whether the products are the same has not been litigated.

[00:39:51] Speaker 00:
It's certainly never been conceded.

[00:39:52] Speaker 00:
We would have, we would be in a very different situation if Zheng Ho and Perma Stalisa had come into the court and said, we know that Article III standing is at issue.

[00:40:06] Speaker 00:
And so we've come in with

[00:40:08] Speaker 00:
af declarations or affidavits or other competent evidence in order to establish their cognizable interest but they never put their name on the dotted line under oath to demonstrate to this court with competent evidence that they possess standing instead what they have done is they have relied on the commerce record I'm sorry but all we have in their cases is the complaint and a complaint people don't

[00:40:35] Speaker 06:
submit oaths.

[00:40:36] Speaker 06:
That's not a stage for evidence.

[00:40:38] Speaker 06:
And if you were in a kind of a normal district court case, complaint, make certain factual allegations.

[00:40:45] Speaker 06:
If the defendant wants to contest standing, the defendant has to contest standing.

[00:40:49] Speaker 06:
And at that point, there might be a summary judgment or other proceeding in which evidence is actually an issue.

[00:40:54] Speaker 06:
But we never got to that in this case.

[00:40:56] Speaker 00:
Your Honor, it was never litigated.

[00:40:59] Speaker 00:
It was never litigated.

[00:41:01] Speaker 00:
It was never conceded.

[00:41:05] Speaker 00:
And just to answer Your Honor's question about where are the orders in the joint appendix, you had asked at previous counsel.

[00:41:15] Speaker 06:
You mean the underlying duty orders?

[00:41:17] Speaker 06:
Yes.

[00:41:17] Speaker 06:
No, I have those.

[00:41:19] Speaker 06:
Oh, you found those.

[00:41:19] Speaker 00:
OK.

[00:41:20] Speaker 06:
Very good.

[00:41:21] Speaker 06:
Maybe we could say something about the merits.

[00:41:24] Speaker 00:
Sure.

[00:41:24] Speaker 00:
If the court reaches the merits, the trial court correctly sustained the scope ruling, which found, based on substantial evidence,

[00:41:33] Speaker 00:
that Iwanda's curtain walls are not imported as a kit and don't meet the finished goods kit exclusion in the orders.

[00:41:42] Speaker 00:
The commerce analysis was straightforward.

[00:41:45] Speaker 00:
The orders exclude finished goods kits that contain, at the time of importation, all parts needed to assemble the finished product as is without further finishing and fabrication.

[00:42:00] Speaker 06:
And your view is?

[00:42:01] Speaker 00:
It flunks all three.

[00:42:03] Speaker 06:
I'm sorry.

[00:42:03] Speaker 06:
Your view is that the curtain wall is the complete cladding of a 76-story building.

[00:42:09] Speaker 06:
And if the kit doesn't include that, then we're not in the kit exception.

[00:42:18] Speaker 00:
Commerce, in its 250 pages of analysis in this matter, did say that if the

[00:42:33] Speaker 00:
If you want done the other exporters chose to import around the same time all the parts necessary to assemble the final finished product And that's the cladding of the whole yes consistent with the petition exhibit which suggested that that might be a possibility They could do so but in this case You want this curtain wall parts are imported in many entries in multiple times according to a contract schedule Not as a single kit

[00:43:03] Speaker 00:
And Iwanda's technical drawings and contract documents showed that the curtain walls required steel embeds and other components for assembly that are not shipped at the same time.

[00:43:17] Speaker 00:
Not all of the parts needed to assemble the final curtain wall.

[00:43:22] Speaker 00:
And they're not assembled as is either.

[00:43:24] Speaker 00:
Iwanda's curtain wall units also require cutting, punching, waterproofing during assembly.

[00:43:31] Speaker 00:
That's not as is it doesn't meet the requirements of the kit test.

[00:43:35] Speaker 06:
How much of what you just said would apply to your colleagues argument about

[00:43:44] Speaker 06:
sub-assemblies that say, I think I heard her say, take two of these panels.

[00:43:50] Speaker 06:
Two together would be a sub-assembly.

[00:43:53] Speaker 06:
And so first of all, do you disagree that a box on the ship that contains two panels and everything you need to put them together so that if that were the entire building, it would be finished?

[00:44:10] Speaker 06:
Do you disagree that that would

[00:44:15] Speaker 06:
excluded from the duties because it's not the whole building.

[00:44:21] Speaker 00:
We do disagree, but also, Your Honor, the sub-assembly test for several reasons doesn't make any sense in the context of this case.

[00:44:32] Speaker 00:
The curtain wall units themselves are not assembled into a curtain wall and then fastened to the building.

[00:44:39] Speaker 00:
Instead, each curtain wall unit is individually

[00:44:43] Speaker 00:
hung on steel embeds and attached to the building in each unit, unit after unit after unit, in order to assemble the complete curtain wall.

[00:44:55] Speaker 00:
So you cannot assemble the curtain wall without the steel embeds and all the other components that Commerce identified in the BPI portion of the opinion in order to assemble

[00:45:13] Speaker 00:
I'm sorry, BPI?

[00:45:15] Speaker 00:
The confidential material.

[00:45:16] Speaker 00:
Oh, sorry.

[00:45:18] Speaker 00:
Business proprietary information.

[00:45:20] Speaker 00:
I apologize, Your Honor.

[00:45:21] Speaker 06:
Too many.

[00:45:21] Speaker 00:
Getting to trade jargon here.

[00:45:24] Speaker 00:
So commerce identified.

[00:45:29] Speaker 00:
You can't assemble the curtain wall without these steel embeds.

[00:45:36] Speaker 00:
The curtain wall units, they don't bear a load.

[00:45:39] Speaker 00:
They're individually attached.

[00:45:43] Speaker 00:
I'm hearing for the first time that two curtain wall units are a sub-assembly.

[00:45:46] Speaker 00:
They're not, because they're not assembled at the time of importation.

[00:45:51] Speaker 00:
They're assembled after importation.

[00:45:53] Speaker 06:
I guess maybe I misunderstood.

[00:45:54] Speaker 06:
I was understanding her to say something like a crate that contains everything that would be necessary to put together two panels, truly everything, would be a kit for creating a sub-assembly.

[00:46:11] Speaker 06:
And therefore, that would be excluded from the two duty orders.

[00:46:16] Speaker 00:
Not on this record, Your Honor, because even those curtain wall units, commerce found, were not assembled as is.

[00:46:26] Speaker 00:
They required further finishing and fabrication, cutting, punching, waterproofing.

[00:46:32] Speaker 00:
That is further fabrication that does not, it runs afoul of one of the requirements of the finished goods.

[00:46:38] Speaker 06:
So your view, just maybe this completes

[00:46:41] Speaker 06:
My inquiry on this.

[00:46:45] Speaker 06:
Your view is that to uphold this order does not require that we say whenever less than the entire building cladding is part of the shipment, the exclusions from the two duty orders are inapplicable.

[00:47:06] Speaker 06:
But even if we focus more narrowly, there's still stuff missing from the crate.

[00:47:12] Speaker 00:
That's right, Your Honor.

[00:47:13] Speaker 00:
And I think that was the approach that Judge Gordon took in the trial court below, that because there were further components and further fabrication that was necessary in this case, we didn't need to reach the additional defect in the reliance on the finished goods kit, that these were entered at multiple entries

[00:47:36] Speaker 00:
multiple times over a period of months or even years.

[00:47:42] Speaker 00:
If I could just sum up.

[00:47:44] Speaker 00:
In sum, because Zheng He and Permis Delisa do not possess Article III standing and substantial evidence supports commerce's findings, the court should dismiss for lack of jurisdiction or affirm.

[00:47:56] Speaker 03:
Thank you.

[00:47:57] Speaker 00:
Thank you.

[00:48:00] Speaker 03:
OK, we'll restore a couple minutes for each of you if you need it, because we've gone over.

[00:48:12] Speaker 03:
Oh, I'm sorry.

[00:48:13] Speaker 03:
Yeah.

[00:48:15] Speaker 00:
Mr. Spooner, I had seated two minutes.

[00:48:19] Speaker 03:
That wasn't indicated on my sheet.

[00:48:23] Speaker 03:
We responded to the oral argument order.

[00:48:25] Speaker 03:
Oh, OK.

[00:48:27] Speaker 03:
Well, fine.

[00:48:28] Speaker 03:
Let's go for two minutes, and we'll compensate you all accordingly.

[00:48:33] Speaker 03:
But we're going to try to hold you to your two minutes.

[00:48:36] Speaker 04:
I will adhere to it, Your Honor.

[00:48:38] Speaker 03:
I will be mercifully brief.

[00:48:42] Speaker 04:
May it please the court, my name is David Spooner, and I'm counsel for Defendant Appellee's The Curtain Wall Coalition, three west coast manufacturers of curtain wall units and systems.

[00:48:51] Speaker 04:
If I may, I'd like to make just one point from an industry perspective about the nature of the product at issue, Yawanda's so-called curtain wall kit.

[00:49:01] Speaker 04:
In its application for a scope determination, Yawanda, as the court knows, provided commerce with a contract for the construction of a curtain wall.

[00:49:09] Speaker 04:
and with a customs entry packet, and asked Commerce to compare the list of parts in the customs entry packet to the contract, and defined, of course, that Yawanda's imported parts constituted a finished good kit, excluded from the order.

[00:49:23] Speaker 04:
The record is replete with evidence, though, that Yawanda's imported parts fail each prong of the Scopes finished goods kit exclusion, for reasons, and this is why I will be brief, the government, I think, so ably recounted.

[00:49:37] Speaker 04:
Iwanda does not import many of the parts necessary to construct a curtain wall.

[00:49:41] Speaker 04:
And for this notion, I'd steer you, please, to page 67 of the joint appendix, in which commerce and its final remand redetermination compared Iwanda's technical drawings to Iwanda's customs entry documents and found many parts missing.

[00:49:57] Speaker 04:
Second, Iwanda's imported parts require further finishing and fabrication.

[00:50:01] Speaker 04:
And for this, I'd simply steer you to page 35 of the joint appendix.

[00:50:06] Speaker 04:
where the lower court has a long list of further finishing and fabrication arguments, a list so long I'd use up my remaining 30 seconds recounting them all.

[00:50:16] Speaker 04:
Simply put, these imported parts are not giant LEGOs that attach themselves to the outside of a building.

[00:50:23] Speaker 04:
With respect to standing, I'd simply say that these projects are so massive and include so many parts that one can't simply assume that the customs entry documents, the imported parts of permits to Lisa and Zheng Ho, are just like that if you wanted

[00:50:36] Speaker 04:
With that, I would thank the court.

[00:50:37] Speaker 04:
Thank you, Ron.

[00:50:39] Speaker 04:
And respectfully ask the court to uphold the lower court decision.

[00:50:45] Speaker 03:
All right.

[00:50:45] Speaker 03:
Well, to keep it even, we'll give you each three minutes, but hopefully that won't even be necessary.

[00:50:49] Speaker 03:
So we'll give both of you in order to respond to what's been raised here.

[00:50:54] Speaker 05:
Thank you, Ron.

[00:50:55] Speaker 05:
I don't believe I'll need three minutes.

[00:50:56] Speaker 05:
Just a couple of quick points about standing.

[00:50:59] Speaker 05:
I'm hearing the United States claiming that,

[00:51:04] Speaker 05:
Perhaps appellants shouldn't have been allowed to be plaintiffs in this case.

[00:51:08] Speaker 05:
That's what I thought I heard, and I don't understand what the basis for that is, but the statute is very clear that as statuses and orders of the subject merchandise, that we're entitled to commence an action.

[00:51:19] Speaker 06:
They're not making a statutory argument.

[00:51:20] Speaker 06:
Their sole argument is constitutional, and the statute can't give Article III standing if it doesn't exist.

[00:51:28] Speaker 06:
At least not as the injury.

[00:51:29] Speaker 05:
Right, but they are attacking the basis for the statutory standing in a sense by doing that because they're claiming somehow that they don't have the interest in the merchandise in some way.

[00:51:40] Speaker 05:
And the way they're getting to that is by raising what I think really are merits arguments.

[00:51:47] Speaker 05:
When I hear them talk about parts lists and whether or not all the materials are ready at the time of assembly, at the time of importation to assemble the product,

[00:51:56] Speaker 05:
which addresses the exclusion, what they're talking about there really are merits.

[00:52:03] Speaker 05:
The product itself hasn't changed.

[00:52:04] Speaker 05:
We have a curtain wall.

[00:52:06] Speaker 05:
We import curtain wall.

[00:52:07] Speaker 05:
So we have statutory standing in that case.

[00:52:10] Speaker 05:
The other arguments as to whether the exclusion is met or not really gets into the merits.

[00:52:16] Speaker 05:
It really isn't a standing issue.

[00:52:19] Speaker 05:
So no one questioned whether we had standing all along, because the product is understood to be the curtain wall.

[00:52:26] Speaker 05:
It was only really later in these proceedings when an issue was raised as to whether we should be looking at a parts question or not.

[00:52:35] Speaker 05:
We disagree with the premise of that.

[00:52:37] Speaker 05:
We don't believe any of that stuff.

[00:52:39] Speaker 06:
Mr. Edelschick made, I think, a reference to how there was at least an oral objection to standing made before Judge Pogue that was then

[00:52:54] Speaker 06:
dropped?

[00:52:56] Speaker 06:
Do you have a different memory or understanding of the record?

[00:53:00] Speaker 05:
I'm not going to say that's wrong because I don't recall specifically.

[00:53:05] Speaker 05:
What I do know is that the merchandise hasn't changed.

[00:53:11] Speaker 05:
And whether or not somebody's going to qualify for the exception here because of lack of a complete parts list or something along those lines, that really gets into really what the merits are.

[00:53:23] Speaker 05:
In other words, you can't win this case because we really don't know what your parts lists are.

[00:53:27] Speaker 05:
That gets into the actual final determination as to whether we're going to prevail or not.

[00:53:32] Speaker 05:
And whether we're going to prevail or not really isn't the issue for standing.

[00:53:36] Speaker 05:
It's whether we have the interest in the product, whether it's the same product, and whether the scope will apply to it.

[00:53:45] Speaker 05:
So with respect to that point, I don't think there's any validity to it.

[00:53:52] Speaker 05:
Also, the issue of Django's other case that was raised.

[00:53:57] Speaker 05:
There is an appending case in the Court of International Trade regarding the second administrative review where this issue had come up.

[00:54:07] Speaker 05:
Commerce claimed that they didn't have enough information on the product to make a determination.

[00:54:14] Speaker 05:
Our position was, well, self-initiate a scope for Django, which they did.

[00:54:18] Speaker 05:
And that case has been stayed.

[00:54:20] Speaker 05:
But that's a different period of time.

[00:54:23] Speaker 03:
OK.

[00:54:23] Speaker 03:
Well, we agree with that, that that's not really relevant and your time has expired.

[00:54:27] Speaker 03:
Thank you.

[00:54:50] Speaker 01:
Thank you.

[00:54:53] Speaker 01:
To talk about what is at issue before the court and going back to the scope language, the question is, does the finished goods kit exclusion apply?

[00:55:07] Speaker 01:
And as we provide in our briefs, there is the general scope language for the finished exclusion kit.

[00:55:16] Speaker 01:
There is also what Commerce has scaled back

[00:55:19] Speaker 01:
to find is a sub-assembly finished good kit.

[00:55:24] Speaker 01:
And if you take that product that is the sub-assembly, what commerce is obligated to do is stop its analysis and evaluation of what is the finished good at the sub-assembly.

[00:55:41] Speaker 01:
So for the fact that the government says there are these additional processes or alleged

[00:55:48] Speaker 01:
Components or parts that are needed that's that's effectively irrelevant when you're talking about a sub-assembly And I think you can see that by seeing how commerce has applied this in other of their rulings the very one that they adopted it in the side control SMVC's for short that they didn't talk about Installation of that valve on the fire truck at all there was no discussion of it I think the other case we cited or that the ruling we decided in our

[00:56:17] Speaker 01:
Brief is a Portals case, which was a structure where Commerce found the ultimate end good was a retail entranceway.

[00:56:29] Speaker 01:
So the structure that was somehow attached to it with no discussion of how it was attached to it was what Commerce called a sub-assembly finished good kit.

[00:56:41] Speaker 01:
So I think in looking at it in that perspective,

[00:56:46] Speaker 01:
the emphasis that the commerce puts on the additional components or processing or finishing isn't relevant.

[00:56:55] Speaker 01:
But even if you are going to say that the curtain wall is the final finished good, what we talked about before and what is in our briefs is that those components and what commerce is cited to as finishing are really operations

[00:57:16] Speaker 01:
that are not impacting the material item itself.

[00:57:22] Speaker 01:
I think if you think about the finishing or fabrication, if you imported something and you welded something onto the curtain wall to make it hang on the building or drilled it in such a way, maybe that would be fabrication or did some sort of finishing

[00:57:44] Speaker 01:
aluminum.

[00:57:45] Speaker 01:
But that's not what they're talking about here.

[00:57:47] Speaker 01:
And again, this material is confidential, so we're limited in walking through it one by one.

[00:57:52] Speaker 01:
But what they're talking about is nothing that's done to the product.

[00:57:58] Speaker 01:
Because again, it is ready to be installed as is.

[00:58:03] Speaker 01:
And going back to the scope language, that is all what is needed for this.

[00:58:10] Speaker 01:
It needs to be

[00:58:15] Speaker 01:
assembled as is, meaning as it is, not what is done to it to make it and to install it into the product.

[00:58:25] Speaker 03:
OK.

[00:58:25] Speaker 03:
Your time has expired.

[00:58:27] Speaker 03:
Thank you.

[00:58:27] Speaker 03:
We thank both sides, and the case is submitted.