[00:00:00] Speaker 03:
The next case for argument is MS International versus United States, appeal number 21-1679 and 1680.

[00:00:07] Speaker 03:
Mr. Craven, you may proceed.

[00:00:12] Speaker 04:
Thank you, Your Honor.

[00:00:14] Speaker 04:
I am here today to discuss this case.

[00:00:18] Speaker 04:
And specifically, we believe that this is a case where procedure is, in fact, important.

[00:00:24] Speaker 04:
And critically, we think that

[00:00:27] Speaker 04:
What the petitioner said at the start of the case before the case was initiated is very important.

[00:00:33] Speaker 04:
The petitioner said in the pre-petition phase that the scope was not intended to cover products in which the crushed glass content of the product is greater than any other single material by actual weight.

[00:00:47] Speaker 04:
And therefore, they revised the scope before the case was initiated to expressly exclude crushed glass.

[00:00:54] Speaker 04:
This was not a question which arose during the course of the investigation.

[00:00:59] Speaker 04:
It was a question which was specifically raised during the pre-initiation phase of the investigation.

[00:01:07] Speaker 04:
The scope including the crushed glass exclusion continued through the preliminary determinations and subsequent to the preliminary determinations in what was something that was somewhat extraordinary under department practices.

[00:01:23] Speaker 04:
The petitioner requested that the scope be clarified to include crushed glass back into the scope of the case.

[00:01:32] Speaker 04:
And we believe that petitioner's words at the start of the case should have been controlling, and more importantly, that any scope modification requests should have occurred in the pre-preliminary phase of the case.

[00:01:48] Speaker 04:
Now, there are a number of secondary procedural issues that I really don't

[00:01:51] Speaker 04:
think I should go into today.

[00:01:53] Speaker 04:
Specifically, we think the issue on the hearing is very straightforward.

[00:01:58] Speaker 04:
We think we should have been granted a hearing, but I don't want to spend the time of the court focusing on what I frankly... Mr. Craven, can you just... Mr. Craven, this is Judge Hughes.

[00:02:12] Speaker 04:
...secondary issue.

[00:02:15] Speaker 03:
Sorry, Mr. Craven, I think we're having a little bit of difficulty, but this is Judge Hughes.

[00:02:20] Speaker 03:
Do you think that commerce did not have the legal authority to redetermine the scope here in the way it did?

[00:02:30] Speaker 04:
Well, I think the commerce always has the authority to set the scope.

[00:02:34] Speaker 04:
The difficulty is that the procedures and the commerce's practice is to set the scope in the preliminary before the preliminary.

[00:02:43] Speaker 03:
I know, that's the question I'm asking you though, is commerce did not, do you think they did not, when during the course of these proceedings they discovered that there was a potential for evasion of the duties, do you think they don't have the legal authority to refine what the scope is?

[00:03:01] Speaker 04:
I think they have the legal authority to refine the scope,

[00:03:04] Speaker 04:
I don't believe they have the legal authority to expand the scope beyond what was covered in the petition, particularly critically because at the petition phase, when the petition comes in, the evaluation is made as to who constitutes the US domestic industry.

[00:03:22] Speaker 04:
As the United States and as Cambria have frequently pointed out, the decision as to whether there is standing to bring the case is made in the

[00:03:32] Speaker 04:
initial phases of the investigation, and the United States has consistently helped, it is not something that the courts or that the Commerce Department can reexamine.

[00:03:43] Speaker 04:
So when we set a scope that excludes glass product and excludes, therefore, a number of producers of product from the domestic industry, the determination as to the domestic industry is made based on

[00:04:01] Speaker 04:
a scope that does not include crushed glass.

[00:04:04] Speaker 00:
Mr. Craven, can I just ask you, I'm having a hard time, I understand what you're saying, actually, but I'm having a hard time understanding the difference between refining and broadening.

[00:04:15] Speaker 00:
You said that they can be fine, but they can't broaden.

[00:04:20] Speaker 00:
Does that mean you think they can only narrow?

[00:04:22] Speaker 00:
What exactly are you saying?

[00:04:24] Speaker 04:
Yes, Your Honor, I think if you look at the historic

[00:04:27] Speaker 04:
precedent of what commerce has done and there are multiple cases where the Department of Commerce has altered the scope even after the preliminary but in those cases for example in olives or in sodium hex they have reduced or limited the scope they haven't expanded the scope because expanding the scope potentially impacts who is a member of the domestic industry and that's very important for deciding

[00:04:56] Speaker 00:
standing and it's very important for deciding ultimately injury because So is it your view that this is the first case in which commerce has expanded the scope?

[00:05:06] Speaker 04:
This is this is my view that this is this is the first case where commerce has expanded the scope in this fashion, Mr. Bronner.

[00:05:14] Speaker 00:
In this fashion?

[00:05:15] Speaker 00:
What do you mean by in this fashion?

[00:05:17] Speaker 04:
Based on a request by petitioner which was untimely

[00:05:22] Speaker 00:
Are there other circumstances where commerce has expanded the scope for others?

[00:05:28] Speaker 04:
I am not aware of any.

[00:05:32] Speaker 04:
There may well be some unusual circumstances, but I don't believe that there are.

[00:05:37] Speaker 04:
And I also don't believe that this is an unusual circumstance.

[00:05:41] Speaker 04:
This is a relatively straightforward case.

[00:05:46] Speaker 04:
And critically, we also can talk about the delay

[00:05:50] Speaker 04:
in bringing this to the detention of the Commerce Department.

[00:05:54] Speaker 00:
So one other question.

[00:05:56] Speaker 04:
Oh, go ahead.

[00:05:57] Speaker 03:
No, you go ahead.

[00:05:58] Speaker 00:
I was just going to ask, I mean, what authority do you have for the idea that Commerce can't expand the scope other than that it hasn't been done before?

[00:06:10] Speaker 04:
Just a second, Your Honor.

[00:06:13] Speaker 04:
I have my notes here and I apologize.

[00:06:23] Speaker 04:
Well, again, I go back to its court precedent and administrative precedent.

[00:06:28] Speaker 04:
In Smith Corona, this court, the CASC, that in determining the status of products that have been modified since issuance of the order, the initial inquiry is whether the products were specifically included within the order.

[00:06:43] Speaker 03:
So Mr. Craven, is that a scope of determination that's coming after the final determination?

[00:06:50] Speaker 03:
Yes, that is a good point.

[00:06:51] Speaker 03:
Well, these cases don't seem particularly relevant to me here.

[00:06:54] Speaker 03:
We're not talking about commerce trying to modify a final order.

[00:06:59] Speaker 03:
We're talking about what commerce can do from the preliminary order to the final, and what authority is there that commerce can't refine its order to say our original scope didn't capture what we intended to, and so we're going to change it because we've got evidence that

[00:07:19] Speaker 03:
the original articulation is going to allow evasion of the purpose.

[00:07:25] Speaker 03:
Isn't that precisely what Commerce has done here and precisely something within their authority?

[00:07:31] Speaker 04:
I don't think so, Your Honor.

[00:07:32] Speaker 04:
I think we go back to, for example, in sodium hacks, in determining whether or not to increase the scope, the Department said during our review of the petition,

[00:07:44] Speaker 04:
We discussed the scope with petitioners to ensure that it accurately reflects the product for which the domestic industry was seeking relief.

[00:07:51] Speaker 04:
And here we have multiple discussions with the domestic industry deciding on what they wanted to seek relief on.

[00:07:58] Speaker 04:
And also it was raised very late in the process, essentially depriving.

[00:08:03] Speaker 03:
Okay, Mr. Craven, I don't want you to focus on what the petitioners did or how they raised it or the like.

[00:08:11] Speaker 03:
I want you to focus on whether Commerce could ultimately do what it did here, and what prevents Commerce from sui sponte raising this question, setting aside what was the impetus for their decision to clarify the scope.

[00:08:30] Speaker 04:
Commerce has a lot of power in setting scope, and I will acknowledge that readily to the court.

[00:08:36] Speaker 04:
That being said, Commerce's decisions must track

[00:08:41] Speaker 04:
their historic practices.

[00:08:43] Speaker 04:
And this is not something that they have done.

[00:08:46] Speaker 04:
They have consistently held that they do not expand the scope

[00:08:50] Speaker 04:
from after the preliminary dissemination.

[00:08:52] Speaker 03:
You keep talking about expanding the scope.

[00:08:55] Speaker 03:
And I suppose that's one way of looking at it.

[00:08:58] Speaker 03:
But I think the other way of looking at it, which is what I suspect commerce is going to tell me, is that this original exclusion for glass products was meant to exclude a very specific type of glass product.

[00:09:12] Speaker 03:
We all know what we're talking about.

[00:09:14] Speaker 03:
I won't try to describe it because I'll get it wrong, but it's in the record.

[00:09:17] Speaker 03:
And that during the course of the investigation, Commerce got evidence that suggested that a different kind of glass product that wasn't meant to be covered by this exclusion was going to come in and was going to evade the order.

[00:09:32] Speaker 03:
So why isn't that exactly the type of clarification that they're allowed to do?

[00:09:37] Speaker 03:
And that's not really an expansion of the scope, because it's not the type of product that was supposed to be covered by the carve-out.

[00:09:46] Speaker 04:
Well, except that the evidence shows that a number of products produced by the very companies named by petitioner that they were seeking to exclude were in fact going to now be covered

[00:09:59] Speaker 04:
by the scope of the order, and these were extant products.

[00:10:04] Speaker 04:
And we've discussed some of these in our case brief.

[00:10:07] Speaker 04:
So it would change if this decision had been made prior to the initiation, had they changed it during the petition phase, it would have covered different range of domestic industry.

[00:10:21] Speaker 04:
And that's one of the critical parts of this, is that this scope covered a very

[00:10:28] Speaker 04:
this expansion of the scope would have brought in specific additional companies into the domestic industry.

[00:10:35] Speaker 04:
And those companies weren't considered as part of the domestic industry during the evaluation of sanding and other relevant factors.

[00:10:43] Speaker 04:
And so that's the key.

[00:10:45] Speaker 04:
And the other point I would make.

[00:10:47] Speaker 03:
Can you tell me, I understand that point, but what difference would that point have made to this investigation and the ultimate final order?

[00:10:55] Speaker 04:
Well, because it would have changed

[00:10:57] Speaker 04:
who the injury determination was examining, who the domestic industry was, whether they had standing.

[00:11:03] Speaker 04:
These are all important points because if a party does not have standing to bring the case, the case shouldn't be brought.

[00:11:10] Speaker 03:
I'm still confused.

[00:11:12] Speaker 03:
You're saying it might have changed standing, but we would have still had the original people.

[00:11:17] Speaker 03:
here that presumably have standing, you're just saying that this could have brought in more people?

[00:11:21] Speaker 04:
This would have expanded the number of companies involved in the domestic industry, and therefore changed the nature of the domestic industry.

[00:11:29] Speaker 03:
But how would that affect the standing question?

[00:11:31] Speaker 03:
We still have the original domestic industry companies that would have not expanded.

[00:11:37] Speaker 04:
Well, then it comes down to a question, though, for evaluation of the percentage of the industry that supported it.

[00:11:42] Speaker 04:
There were members of the domestic industry that did not support this case.

[00:11:46] Speaker 04:
or at least did not take a stand publicly on this case.

[00:11:50] Speaker 04:
And secondly, it affected the ITC.

[00:11:52] Speaker 03:
Did that include some of these companies that you thought would have been covered if this different product had been excluded or included?

[00:12:04] Speaker 04:
They didn't have the opportunity to comment on that because, again, this is not an issue which is examined after the petition is filed.

[00:12:21] Speaker 03:
You're well into your rebuttal time, Mr. Craven.

[00:12:23] Speaker 03:
Would you like to say that, Ed?

[00:12:25] Speaker 04:
I'm sorry.

[00:12:25] Speaker 04:
I guess, Your Honor, I apologize.

[00:12:27] Speaker 04:
I thought the time was giving me my primary argument.

[00:12:31] Speaker 04:
Yes, I would like to reserve the remainder.

[00:12:33] Speaker 04:
Thank you.

[00:12:33] Speaker 03:
Yeah, it starts from the Hall 15.

[00:12:35] Speaker 02:
Mr. Kerlin?

[00:12:39] Speaker 02:
Good morning, Your Honors, and may it please the court.

[00:12:42] Speaker 02:
The manner in which commerce proceeded in this case is consistent with the well-established procedures of anti-dumping and kind of only dutying trades on the investigation.

[00:12:52] Speaker 02:
And one particularly salient articulation of that is this court's decision in Dufourca with pages 1089, 1096, 97, just very widely quoted, that the purpose of a petition is to propose an investigation and the purpose of commerce's investigation itself

[00:13:09] Speaker 02:
is to determine what merchandise should be included in the final order.

[00:13:14] Speaker 03:
Mr. Carlin, before you get to the main part of your argument, I'm just curious because I think it's a different point, but since it's fresh, can you just respond to that last point Mr. Craven made about if the new scope had been from the outset that it might have changed

[00:13:31] Speaker 03:
the entire course of the investigation, because there might have been other domestic industry participants and the like.

[00:13:37] Speaker 03:
I mean, I'm not sure what to make of all of that argument.

[00:13:41] Speaker 02:
So what's commerce's view on that?

[00:13:43] Speaker 02:
Sure.

[00:13:43] Speaker 02:
And I'll note, Your Honor, that this is something we addressed in our brief.

[00:13:46] Speaker 02:
But I think there are a couple issues there.

[00:13:50] Speaker 02:
The first is I want to be clear that despite the assertion that Mr. Craven makes, there's been no factual determination that companies identified would have been part of the domestic industry or major players or that they weren't importing the goods that they were selling.

[00:14:04] Speaker 02:
So I don't think the court should accept that face value is some determination that companies are in.

[00:14:10] Speaker 02:
But what we pointed out in our brief is that Mr. Craven, well this is on reply, he argues that

[00:14:19] Speaker 02:
that we've kind of stood this issue on its head because commerce can't reevaluate either domestic industry standing during the proceeding.

[00:14:27] Speaker 02:
It's actually he who is standing this issue on its head.

[00:14:31] Speaker 02:
Because the whole point of that rule that doesn't allow commerce to reevaluate the issue was to address the situation that was going on a long time ago in like the 80s and early 90s where every time commerce tweaked the,

[00:14:44] Speaker 02:
the language of a particular investigation to be more expansive or narrower, that people would want commerce to reassess the industry standing issue in that case.

[00:14:55] Speaker 02:
And so Congress made a specific determination, or at least that's what the law represents, to say, no, we're not going to keep reevaluating this every time there's a change in the industry.

[00:15:06] Speaker 02:
It's also an issue that this court addressed in the context of the Mitsubishi decision, which I think we'll end up talking about more on the main point.

[00:15:15] Speaker 02:
But at page 1584 to 1585, there was also an issue about inconsistency with the IPC determination and whether that was a reason not to allow commerce to have expanded the scope of the order in that case.

[00:15:30] Speaker 02:
And this court held that it wasn't.

[00:15:33] Speaker 02:
because the evasion issue there was more significant.

[00:15:37] Speaker 02:
And even though the ITC had looked at one set of sub-assemblies, and there was an argument that the additional sub-assemblies that Commerce had expanded the order to include were not what the ITC looked at, the court said that's not a reason not to allow Commerce to make sure there's no evasion here.

[00:15:53] Speaker 02:
So I hope that addresses that issue, Your Honor, and it's something we also addressed in our brief.

[00:16:01] Speaker 02:
The main legal point is that, and now I'm quoting the CIT's decision in Kyocera, but again, it's just a particularly good articulation

[00:16:12] Speaker 02:
what the jurisprudence as a whole said is that, this is the 1316 of Kyocera.

[00:16:17] Speaker 02:
Commerce has authority to modify the scope language until the final determination based on information gathered during the investigation.

[00:16:25] Speaker 02:
And I think it's fair to say that

[00:16:27] Speaker 02:
That's especially so when the information gathered during the investigation reveals the potential for evasion.

[00:16:34] Speaker 02:
And I don't think I need to go into the weeds on this, but here in this case, it's unusual in the sense that there was particularly strong evidence of evasion.

[00:16:42] Speaker 02:
What the trial court referred to as, quote, open and blatant evasion,

[00:16:46] Speaker 02:
by the Chinese producers who were always at issue in the investigation, manipulating their formula to exploit this crush class exclusion that was in the original petition language.

[00:17:01] Speaker 02:
We respectfully disagree with Appellant's claim that there are no instances in the past where commerce has expanded the scope during the investigation.

[00:17:13] Speaker 02:
In fact, those are the main cases we cite, in particular, both the trial court and this court's decision in Mitsubishi, as well as the trial courts and this court's decision, trial court in Fiacera, this court in Canadian Solar, which were the yin and yang of two separate solar investigations, one on the Taiwan side and one on the China side.

[00:17:33] Speaker 02:
I think the fact that Commerce was expanding the scope in Mitsubishi is particularly evident at page 543 of the trial court's opinion in that case.

[00:17:43] Speaker 02:
And what the trial court explained is that the original scope in that case referenced the notion of subassemblies.

[00:17:49] Speaker 02:
But it said basically this is to cover cellular phones as well as components and kits of subassemblies.

[00:17:57] Speaker 02:
And so the idea was that the scope wasn't originally drafted to cover individual subassemblies, but only these grouping of subassemblies.

[00:18:05] Speaker 02:
And commerce made the determination during the investigation that that wasn't good enough.

[00:18:11] Speaker 02:
We had to cover individual sub-assemblies, otherwise there'd be potential evasion.

[00:18:17] Speaker 02:
And the Court of International Trade upheld that determination.

[00:18:22] Speaker 02:
This court affirmed.

[00:18:23] Speaker 02:
With language that, given our time constraints, I don't need to get into, but it specifically discussed preventing evasion, specifically discussed commerce's authority to modify the scope based on the information obtained during the investigation to effectuate the intent of what's going on.

[00:18:42] Speaker 02:
That's commerce's whole role.

[00:18:45] Speaker 02:
in these proceedings to make sure that they are providing an effective remedy under the anti-dumping that kind of really do yours.

[00:18:56] Speaker 02:
In Canadian solar, same issue, and Kiosera.

[00:18:58] Speaker 02:
Canadian solar was the China investigation.

[00:19:00] Speaker 02:
Kiosera was the Taiwan investigation.

[00:19:03] Speaker 02:
And the idea was that commerce had to change the scope language to deal with country of origin issues.

[00:19:08] Speaker 02:
And as a result of that, entire companies were in or out

[00:19:11] Speaker 02:
of those particular investigations based on where their goods were made.

[00:19:16] Speaker 02:
And so that was both a complaint in Canadian solar and particularly in Kyocera, the complaint was, hey, you know, our company wasn't in this investigation effectively until you modified the scope all the way in the final determination.

[00:19:32] Speaker 02:
And the courts consistently said that, you know, that is not going to dissuade us here.

[00:19:38] Speaker 02:
There's an evasion concern and commerce properly dealt with that evasion concern by creating a scope that gets at the issue.

[00:19:47] Speaker 02:
I was just not also mentioning the trial court decision in TSR.

[00:19:50] Speaker 02:
We quoted this in our brief.

[00:19:51] Speaker 02:
I'm sorry, Mitsubishi.

[00:19:53] Speaker 02:
We quoted this in our brief.

[00:19:54] Speaker 02:
Talked about the factors that commerce can take into account.

[00:19:56] Speaker 02:
And some of it, one of it was kind of the newness of the,

[00:20:01] Speaker 02:
Well, there we're talking about the newness of the industry, but I think that applies to the newness of the way the Chinese producers here were modifying their materials to take advantage of the occlusion, also the known practices of the foreign export, which is also relevant here.

[00:20:20] Speaker 02:
Briefly, the main case that Breskin cites is a case called Minabea.

[00:20:26] Speaker 02:
It's not relevant.

[00:20:28] Speaker 02:
Minnebale, like the cases that your honors discussed in Plainis case in chief, is a case, it's a regular old scope determination.

[00:20:38] Speaker 02:
Sometimes commerce does those during the investigation itself.

[00:20:41] Speaker 02:
So it was during the investigation, but it was a regular old scope determination where commerce was simply deciding whether the product fell within the scope that had already been articulated.

[00:20:51] Speaker 02:
It wasn't deciding whether or not to change the scope in any way.

[00:20:55] Speaker 02:
And so it applied these diversified product factors, which are now codified.

[00:20:58] Speaker 02:
They're known as the K2 factors.

[00:21:01] Speaker 02:
It comes up a lot in the court's decisions, K1 and K2.

[00:21:05] Speaker 02:
But those factors have nothing to do with whether commerce modifies the scope to address evasion concerns.

[00:21:14] Speaker 02:
I think one other point I can make on industry support is on this court in the Kyocera decision at 1315, I'm sorry, the CIT in that decision indicated that the exclusion of additional sales was not a reason to undermine commerce's determination to modify the scope and the final determination.

[00:21:33] Speaker 02:
And of course here really the exclusion is just cutting out a small piece of what was otherwise well included.

[00:21:40] Speaker 02:
And the whole point of this is that the scope said we're including products of silica, not quartz, but silica.

[00:21:47] Speaker 02:
And so this was supposed to be a narrow carve out from the broad inclusion of the industry here for these recycled products.

[00:21:58] Speaker 02:
I don't think it's fair to say that the ITC, in this case, had failed to look at the overall industry that was at issue.

[00:22:06] Speaker 02:
If your honors don't have further questions, we are happy to rest.

[00:22:11] Speaker 02:
We respectfully request that the court affirm the decision of the trial court.

[00:22:16] Speaker 01:
Thank you, Mr. Curlin.

[00:22:17] Speaker 01:
Mr. Weissner?

[00:22:20] Speaker 01:
Thank you, your honors.

[00:22:21] Speaker 01:
Good morning.

[00:22:21] Speaker 01:
May it please the court?

[00:22:23] Speaker 01:
Commerce's modification of the scope to address open and blatant evasion was supported by the record evidence, was an appropriate use of the agency's discretion, and was in accordance with due process.

[00:22:34] Speaker 01:
It should therefore be upheld.

[00:22:37] Speaker 01:
When we first filed the petitions on port service parts from China in April 2018, we were not aware of the existence of any type of crushed glass surface.

[00:22:46] Speaker 01:
That is why the original petition made no mention of crushed glass.

[00:22:50] Speaker 01:
Commerce later called and asked whether we intended to include any glass products in the scope.

[00:22:56] Speaker 01:
That is when we became aware of this niche product often made by hand using recycled wine and beer bottles that has a unique look where large pieces of glass are visible across the surface.

[00:23:07] Speaker 01:
You can see photos of this product in appendix 576, 580, 594, and 595.

[00:23:12] Speaker 01:
We believe this product was sufficiently different from Cambria's product and served such a small niche market that it could be excluded from the scope so long as crushed glass was the predominant raw material used to make it.

[00:23:26] Speaker 01:
Commerce initiated investigations based on this original scope exclusion, and when doing so set deadlines for the submission of factual information and comments on the scope.

[00:23:36] Speaker 01:
Commerce emphasized, however, that outside of these regular deadlines, if a party subsequently finds that additional factual information pertaining to the scope of the investigation may be relevant, the party may contact Commerce and request permission to submit the additional information.

[00:23:53] Speaker 01:
That's in Appendix 203.

[00:23:57] Speaker 01:
In late November 2018, after the preliminary determinations were issued, we began to receive alarming evidence that Chinese producers were exploiting the original crushed glass exclusion to ship what they called a newly developed product that used fine glass powder instead of quartz powder to make surfaces that were indistinguishable from other quartz surface products, including those made by Cambria.

[00:24:22] Speaker 01:
There were no visible pieces of glass whatsoever in these new products.

[00:24:26] Speaker 01:
Example of it can be seen in Appendix 602, 603, 606, and 611.

[00:24:34] Speaker 01:
As soon as it was feasible after the government shutdown had ended, we sought Congress's permission to submit evidence of this evasion onto the record.

[00:24:42] Speaker 01:
Commerce accepted the evidence, allowed the respondents to submit rebuttal evidence, and then held a separate round of briefing on whether it should modify the scope.

[00:24:51] Speaker 01:
Commerce also held ex parte meetings with the parties on this issue.

[00:24:55] Speaker 01:
We just see the central question before this court to be whether Commerce abused its discretion when it modified the scope to address what the lower court described as open and blatant evasion.

[00:25:08] Speaker 01:
The answer is no.

[00:25:09] Speaker 01:
As this court is recognized in the case of Mitsubishi, Commerce has the authority to modify its scope to address evasion based on information developed during the course of the investigation.

[00:25:20] Speaker 01:
Accordingly, we respectfully request that this court uphold Commerce's decision

[00:25:25] Speaker 01:
to modify the scope.

[00:25:27] Speaker 03:
Thank you, Mr. Meiser.

[00:25:29] Speaker 03:
Mr. Craven, you have some time left for rebuttal.

[00:25:34] Speaker 04:
Oh, Joseph, I had to unmute.

[00:25:36] Speaker 04:
Thank you.

[00:25:36] Speaker 04:
I think the key here is you need to look at the language of Mitsubishi.

[00:25:40] Speaker 04:
On our rebuttal brief on page four of our rebuttal brief, we note that while commerce has been broad discretion, this is from Mitsubishi, from the court decision.

[00:25:53] Speaker 04:
discretion to define and clarify the scope in a manner which reflects the intent of the petition, and that when a question arises, the first thing the ITA must do is, quote, determine whether the petition covers the product.

[00:26:08] Speaker 04:
If the petition is ambiguous, Commerce then examines additional documentary evidence.

[00:26:13] Speaker 04:
This scope was not ambiguous.

[00:26:17] Speaker 04:
The scope was very clear.

[00:26:18] Speaker 04:
It said it did not cover crushed glass.

[00:26:22] Speaker 04:
Um, and we also go back to their strong evidence of evasion.

[00:26:26] Speaker 04:
I, again, we don't believe that that evidence is strong, but more critically, the notification to the commerce department was late while it is true that there was a government shutdown.

[00:26:43] Speaker 04:
Mr. Meisner's firm was not shut down and they delayed significantly after the government returned before they put this information in.

[00:26:52] Speaker 04:
before the Commerce Department, limiting the time and ability of the respondents to provide additional information.

[00:27:01] Speaker 04:
So we would note that part of the problem is this very late process significantly limited our ability to discuss this.

[00:27:11] Speaker 04:
We did, however, provide evidence showing that it would have covered product.

[00:27:17] Speaker 04:
And I would refer the court to Appendix Page 793, for example,

[00:27:22] Speaker 04:
which contains pictures of different kinds of crushed glass product, which does not look like the crushed glass, which was sold prior to the initiation of the case, and which does not resemble the special niche crushed glass product that they're seeking to exclude.

[00:27:42] Speaker 04:
Simply put, we did not have a full opportunity, and that's why we talk about the procedure, to address this because it was raised late.

[00:27:50] Speaker 04:
And this is also why the Commerce Department wants the scope issues raised earlier, because it provides the opportunity for the parties to address these issues with sufficient time and consideration.

[00:28:05] Speaker 04:
And so we submit that the court precedent Mitsubishi and the like is clear, and that in this case, this expansion of scope was too late.

[00:28:16] Speaker 04:
And while commerce has the authority to do so, it must act in a reasonable and fair fashion.

[00:28:21] Speaker 04:
And that's not what we had here.

[00:28:23] Speaker 04:
And thank you.

[00:28:23] Speaker 04:
And I urge the court to remand this matter to the Commerce Department via the trial court.

[00:28:31] Speaker 04:
Thank you very much.

[00:28:33] Speaker 03:
Thank you, Mr. Craven.

[00:28:34] Speaker 03:
Mr. Kerlin, Mr. Meisner, the case is submitted.

[00:28:37] Speaker 03:
That concludes our arguments for today.

[00:28:41] Speaker 03:
Thank you.

[00:28:41] Speaker 03:
The honorable court is adjourned from day to day.