[00:00:00] Speaker 03: Our last case for argument today is case number 22-1077, Pocarna, engineered stone versus United States. [00:00:12] Speaker 03: Is it, counsel, how do I pronounce your last name, is it Stoll? [00:00:16] Speaker 03: Yes, Your Honor. [00:00:17] Speaker 03: Okay, Mr. Stoll, please proceed. [00:00:20] Speaker 05: May it please the Court. [00:00:22] Speaker 05: This case is about the government's refusal to hear the views of hundreds of American manufacturing companies and thousands of American manufacturing workers. [00:00:31] Speaker 05: Specifically, this case involves assertions by U.S. [00:00:34] Speaker 05: producers of quartz surface products, your kitchen countertops, your honor, of dumped imports from India. [00:00:41] Speaker 00: The Commerce Department defined... Isn't it basically about the definition of producers and whether fabricators are producers? [00:00:49] Speaker 05: Yes, Your Honor. [00:00:50] Speaker 05: The Commerce Department defined domestic quartz service products to include fabricated quartz. [00:00:57] Speaker 05: And yet, when thousands of quartz fabricators asked that their views on the trade case be heard by Commerce, the government decided that they couldn't do that, Your Honors. [00:01:08] Speaker 05: This was unlawful and not supported by substantial evidence. [00:01:11] Speaker 05: Why does this matter, Your Honors? [00:01:13] Speaker 05: The governing statute and the legislative history both show that Congress wanted the views of domestic producers to be heard in order for the Commerce Department to conduct an anthropogenic investigation on the basis of a petition. [00:01:26] Speaker 05: such as the one at issue here that my friend from Cambria filed, those in support of the petition must account for at least 25% of the total production of the domestic light product and, Your Honors, more than 50% of the production of the domestic light product produced by members of the industry expressing a position on the petition. [00:01:46] Speaker 01: Can I just ask you a kind of housekeeping? [00:01:48] Speaker 01: I think there's a footnote on footnote 129 where the court says, [00:01:58] Speaker 01: with fabricated data included, and the suggestion being that this was anything harmless, error. [00:02:08] Speaker 01: Why don't we begin and end this case there? [00:02:11] Speaker 05: I guess, Your Honor. [00:02:12] Speaker 05: First of all, I think the court is incorrect. [00:02:14] Speaker 05: There are actually four different cases, all of which we've now focused on this one case presuming dumping from India. [00:02:20] Speaker 05: Even on the basis of the information submitted by the fabricators to the Commerce Department, there is in fact evidence that the case should not go forward. [00:02:30] Speaker 05: But more importantly, Your Honor, Commerce's putting and the trial court put the cart before the horse. [00:02:36] Speaker 05: I mean Commerce had already decided that fabricators were not part of the domestic industry and then it did its calculations. [00:02:41] Speaker 05: That can't be the basis [00:02:43] Speaker 05: for answering the question of whether you include fabricators, the case shouldn't go forward. [00:02:47] Speaker 05: Furthermore, as we pointed out in our briefs, Your Honors, [00:02:50] Speaker 05: The agency has the ability, set forth by Congress, to pull the industry. [00:02:55] Speaker 05: They can find out what's going on. [00:02:57] Speaker 05: That's particularly important, Your Honors, where here, in just a few days, really a week, Your Honor, my clients submitted 270 declarations from fabricators, accounting for 5,800 American workers. [00:03:08] Speaker 05: That's 5,800 American workers, Your Honors. [00:03:11] Speaker 03: Counsel, that's not in front of us. [00:03:13] Speaker 03: That's not before us. [00:03:13] Speaker 03: That's not part of this case. [00:03:15] Speaker 03: Focus on the case. [00:03:16] Speaker 03: Go back to Judge Lurie's question, which I think is what this case is all about, which are our fabricator's producers. [00:03:22] Speaker 03: Focus on the statute. [00:03:23] Speaker 03: Tell me how I should define producers. [00:03:26] Speaker 03: I mean, you just want to speak in terms of rhetoric like you're on a pulpit. [00:03:30] Speaker 03: You're not. [00:03:31] Speaker 03: You're in a court. [00:03:32] Speaker 03: So focus on the law. [00:03:33] Speaker 05: Yes, Your Honor. [00:03:34] Speaker 05: I think the key point here, Your Honor, and I think the parties agree to this, is that the word producers is not defined in the statute. [00:03:40] Speaker 05: And so the question is, can this court [00:03:43] Speaker 05: interpret the word in a way consistent with the statute and, I think, the statutory intent. [00:03:48] Speaker 05: And I believe, Your Honors, is that the term producer should be interpreted in accordance with its ordinary terms set forth in the statute. [00:03:54] Speaker 03: But haven't we, in the past, actually sustained Commerce's determination of producer under the sufficient production-related activities test? [00:04:04] Speaker 05: Actually, Your Honor, that issue of the production-related activities test was not directly before this Court. [00:04:10] Speaker 05: It was addressed by the UCEDD Court in the case below. [00:04:13] Speaker 05: And then, Your Honor, Judge Post addressed the broader question of domestic industry in the EURDF decision. [00:04:19] Speaker 05: But I think there's a couple of important points about EURDF that really actually support our side, Your Honor. [00:04:24] Speaker 05: First, that case involved a situation where the facts do matter. [00:04:27] Speaker 05: That case involved an unquestioned situation where the folks trying to be heard as producers. [00:04:32] Speaker 01: They didn't produce anything. [00:04:41] Speaker 01: Why are you saying that what they came up with is the test that they've come up with as sufficiency or relatedness is wrong in challenging that? [00:04:53] Speaker 05: I think that in a situation like this one where it's unquestioned that the producer has actually made [00:05:00] Speaker 05: the domestic-like product. [00:05:02] Speaker 05: You don't need to go on to a test like that. [00:05:04] Speaker 05: We know that they made a domestic-like product, and thus they qualify as producers. [00:05:08] Speaker 05: Again, Petitioner and the Commerce Department defined the domestic-like product to include fabricated quartz. [00:05:16] Speaker 05: It's unquestioned that the producers of fabricated quartz thus should be considered to be producers. [00:05:22] Speaker 05: And I think, Your Honor, that the statutory interpretation that you and your court offered, which is a substantial and important manufacturing, is the test here. [00:05:32] Speaker 05: That very much supports us. [00:05:33] Speaker 05: You don't need to go further. [00:05:34] Speaker 05: We know that they, in fact, did that. [00:05:36] Speaker 05: So we don't need to apply a six-factor test. [00:05:39] Speaker 05: Now, Your Honor, we certainly believe, as we pointed out, that if you want to go to the six-factor test, that the substantial evidence doesn't support the application of that test. [00:05:46] Speaker 05: But we don't believe that here, application of that test is lawful. [00:05:49] Speaker 05: And I think that there's an important statutory construction issue here, Your Honor, which is the statute says once somebody is considered to be a domestic producer, as I said, they'd make the domestic-like product, so they are a domestic producer, then the statute, per Congress, gives two reasons under which commerce may exclude. [00:06:07] Speaker 05: It says either you're related, [00:06:09] Speaker 05: you shall have excluded. [00:06:11] Speaker 05: Or if you're an importer, you may exclude. [00:06:12] Speaker 05: It doesn't talk about a six-factor test. [00:06:14] Speaker 05: It doesn't give commerce any additional discretion. [00:06:18] Speaker 05: It prescribes, Congress specifically prescribed two examples for how producers may be excluded. [00:06:25] Speaker 05: And Commerce Department didn't invoke either one of those exceptions in this case. [00:06:31] Speaker 05: I think that the, you know, the canon of expressio unis est exclusion altieris, I always hate pronouncing that, said, you know, it shows that you can't have another test when Congress is already giving you the two tests. [00:06:43] Speaker 05: I also think, Your Honor, going back to the Eurodiff case, that this case is very different, as I said, and this is why Judge Moore, Chief Judge Moore, the facts do matter. [00:06:52] Speaker 05: In that case, it was very clear that the utilities did not produce [00:06:57] Speaker 05: the domestic-like product. [00:06:58] Speaker 05: That was unquestioned. [00:06:59] Speaker 05: They were trying to bootstab their standing as a domestic producer, relying on a now-defunct regulation. [00:07:05] Speaker 05: I think that also goes to the question of commerce's ability to interpret the law here. [00:07:11] Speaker 05: They could interpret their own regulation, and this court showed deference to the interpretation of that regulation at the time. [00:07:17] Speaker 05: They cannot interpret the statute without this court's oversight. [00:07:20] Speaker 03: Counsel, I think that one of, unless I'm wrong, the government's arguments, which I'd like you to address, is that [00:07:27] Speaker 03: While your client might ultimately be working on something, which is a domestic-like product, not all degrees of processing a domestic-like product qualify someone as a producer of that product. [00:07:43] Speaker 03: I think the government's argument is that there are lots of hands a domestic-like product could move through, and not all those hands are necessarily to be defined as producers of a domestic-like product. [00:07:56] Speaker 03: a fair characterization of what you understand the government to be arguing? [00:08:00] Speaker 05: I think that is one of the government's arguments. [00:08:02] Speaker 03: And how do you respond to that? [00:08:04] Speaker 03: Because you would like to link the fact that your clients are involved in some form of modification of a domestic-like product to necessarily require them to be held to be producers. [00:08:18] Speaker 03: And so why is the government wrong when they say not everyone's hands through which a domestic-like [00:08:26] Speaker 03: product would pass, make them producers. [00:08:30] Speaker 03: That seems right to me. [00:08:32] Speaker 03: So how do you respond to that? [00:08:34] Speaker 05: Your Honor, I think it's incorrect for a simple reason, which is in this case, the petitioner and then Congress made an election, okay? [00:08:42] Speaker 05: They decided that court service products should include fabricated or not. [00:08:47] Speaker 05: court service products. [00:08:48] Speaker 05: Once they made that election, a producer of a fabricated court service product was therefore included in the domestic light product. [00:08:54] Speaker 05: My friends across the aisle could have decided, we're just going to define the domestic light product as being slabs, which is basically like this table before it's actually been made. [00:09:04] Speaker 03: Let me give you a hypothetical. [00:09:06] Speaker 03: These are going to be fun. [00:09:09] Speaker 03: Imagine that there is a baker who makes cookies, and then there are my children that break them into crumbles. [00:09:16] Speaker 03: and eat the bits of the cookies, okay? [00:09:19] Speaker 03: Who is the producer? [00:09:21] Speaker 03: And I say, cookies and cookie parts are all part of cookies. [00:09:28] Speaker 03: Are my children now the producers of the cookies because they were the ones that broke them into pieces? [00:09:33] Speaker 03: I don't think so. [00:09:34] Speaker 03: It seems to me the baker is the producer of the cookies. [00:09:37] Speaker 03: But I would still define both the cookies and the broken cookies as all cookies. [00:09:42] Speaker 05: Excellent analogy, Your Honor. [00:09:44] Speaker 05: First of all, actually, I do think that your children are the producers of those promo cookies, is the fun argument. [00:09:49] Speaker 05: And I think, actually, the Commerce Department agreed with that. [00:09:51] Speaker 05: They included the fabricated court that was made by the folks who also made the slab, basically the basic product. [00:09:59] Speaker 05: But what your analogy, I think, doesn't take into account [00:10:03] Speaker 05: is that there are also hundreds of other people over there making cookies and crumbling them. [00:10:08] Speaker 05: And what the Commerce Department did is it focused only on your children's cookies. [00:10:12] Speaker 05: It forgot about the fact that there are thousands of other people also making cookies and crumbling those cookies, to stay with your analogy. [00:10:19] Speaker 05: And that is what we assert is unlawful. [00:10:21] Speaker 03: But I thought that they were willing to entertain all of the people who make cookies, just not the people who break them up. [00:10:28] Speaker 05: No, Your Honor, I don't think that's right because [00:10:31] Speaker 05: It hardly depends on what you're talking about is cookies. [00:10:33] Speaker 05: But at the end of the day, the domestic leg product includes both fabricated and unfabricated quartz. [00:10:40] Speaker 05: And so that's a bigger universe, to use your analogy. [00:10:43] Speaker 03: I know, but the problem for me is I don't see that the people who participate in creating the fabricated quartz tops [00:10:56] Speaker 03: are necessarily producers of the fabricated quartz. [00:11:00] Speaker 03: I still think it might be the stone suppliers. [00:11:03] Speaker 03: And that is where we have the fundamental problem, because the statute doesn't define the word producers. [00:11:09] Speaker 03: And that's where it kind of feels like maybe the deference should go to the government to figure out a reasonable test to how to sort that through, because it's not immediately self-evident to me how to do it. [00:11:21] Speaker 05: Well, Your Honor, I think actually the good news is that the Eurodiff court already did it for us. [00:11:26] Speaker 05: They defined the test as being substantial or important manufacturing. [00:11:30] Speaker 05: And I think when you look at this record, this court can make a decision as to whether its application of the word substantial or important, as it said forth in Eurodiff, makes sense. [00:11:39] Speaker 05: And I would point the court actually to my friend from Cambria, his brief at 41. [00:11:46] Speaker 05: What did they say there? [00:11:47] Speaker 05: They conceded, to Your Honor's questions, about the cookies and the crumbling. [00:11:51] Speaker 05: Okay, get away from that. [00:11:52] Speaker 03: It was a stupid hypo. [00:11:53] Speaker 03: I admit it. [00:11:54] Speaker 03: It was dumb. [00:11:55] Speaker 03: Move on. [00:11:55] Speaker 03: Talk about your court stops. [00:11:58] Speaker 05: One third of the cost that's admitted by my friend comes from fabricators. [00:12:03] Speaker 05: Okay, that's substantial or important. [00:12:04] Speaker 05: I think we can interpret those ordinary words. [00:12:07] Speaker 03: Secondly, my friend conceded that fabricators on average... Shouldn't all that go to the factors that ought to be used to assess who is a producer? [00:12:15] Speaker 03: It doesn't necessarily automatically require someone to be deemed a producer. [00:12:21] Speaker 05: No, Your Honor, I think that there is a fundamental question of statutory interpretation, which is you can interpret the word producer, and you know whether somebody or not is a producer or not. [00:12:31] Speaker 05: I would point you to the dictionary definitions that we offered. [00:12:35] Speaker 05: And I think this Court has said, in Mass General and other cases, that this Court is the one to interpret basic words of the statute, not the agency. [00:12:43] Speaker 05: And so I think when you look at fundamental facts like the ones I told you and the definitions of the word, [00:12:49] Speaker 05: you can interpret that in this case, the only answer could be that fabricators are, in fact, producers. [00:12:55] Speaker 05: I don't think that this is something that should be subject to the government's discretion. [00:12:59] Speaker 05: And so there may be a time, as we said in our brief. [00:13:01] Speaker 03: I think you probably want to save some of your rebuttal time, don't you? [00:13:04] Speaker 05: Thank you, Your Honor. [00:13:05] Speaker 03: OK. [00:13:07] Speaker 03: Now, Mr. Kerland? [00:13:09] Speaker 00: Yes, Your Honor. [00:13:10] Speaker 04: Please proceed. [00:13:12] Speaker 04: Good morning, Your Honors, and may it please the Court. [00:13:15] Speaker 04: This Court should sustain the Department of Commerce's determination in this case because it is both lawful and because it is supported by substantial evidence. [00:13:24] Speaker 04: Regarding the lawfulness of Commerce's determination, this case is controlled by this Court's previous decision in Eurodiff, which sustained or, excuse me, affirmed as reasonable Commerce's application of the same test [00:13:38] Speaker 04: in the same context as it did in this case. [00:13:43] Speaker 04: Specifically, the court recognized, as the trial court had and as the Court of International Trade in previous cases had before it, that the term producer in the statute is undefined and that what we've all termed the sufficient production-related activities test that was applied in that case was a reasonable interpretation. [00:14:01] Speaker 04: Commerce then applied that test in this case. [00:14:05] Speaker 04: And in doing so, over and above the Chevron deference issue, Commerce engaged in a reasonable line drawing exercise to implement what's an undefined term in the statute, producers. [00:14:19] Speaker 04: And even before and after Chevron, this court has recognized that that's the type of determination that warrants a lot of deference. [00:14:25] Speaker 04: Even MSI recognizes at some level, and this is a page 25 footnote 2 of their brief, that there has to be some distinction between those who produce and those who take an existing product and process it. [00:14:39] Speaker 04: And what Commerce engaged in was a line drawing exercise to say, where do you draw the line? [00:14:43] Speaker 04: At what level of processing do you become a producer? [00:14:46] Speaker 01: So what's the standard of review here? [00:14:49] Speaker 01: What analysis are we doing? [00:14:50] Speaker 01: We're doing Chevron 2? [00:14:52] Speaker 01: We're doing our? [00:14:53] Speaker 01: What do we do in this context? [00:14:55] Speaker 04: Well, it's a Chevron 2 analysis. [00:14:57] Speaker 04: I think my point was, even if you didn't have Chevron, I mean, this court before and after Chevron has deferred to these type of line drawing exercises. [00:15:07] Speaker 04: But the trial court in this case analyzed it as a Chevron step 2 issue. [00:15:11] Speaker 04: The trial court in Eurodiff analyzed it as a Chevron step 2 issue. [00:15:14] Speaker 04: And then this court invoking the language of Chevron step 2 upheld commerce's determination as reasonable. [00:15:21] Speaker 04: So I'll submit it's a Chevron step 2 issue. [00:15:25] Speaker 03: Am I right in understanding that you began by suggesting that Eurodiff actually already decided this issue? [00:15:34] Speaker 04: Well, it decided the legal issue to the extent that the plaintiff's appellant's argument, I mean, they haven't really argued Chevron Step 2. [00:15:42] Speaker 04: You can say that they waived that issue. [00:15:43] Speaker 04: They have rested their case entirely on a Chevron Step 1 issue. [00:15:49] Speaker 04: And both the USEC 2 decision below in the trial court and then this court's decision in Eurodiff recognized this as a Chevron Step 2 issue. [00:16:00] Speaker 04: and upheld commerce's interpretation of the statute as reasonable under Chevron Step 2. [00:16:06] Speaker 04: So the extent that they're saying this is a Chevron Step 1 issue, that issue has already passed in your diff as a legal matter. [00:16:13] Speaker 01: Obviously, each case has it. [00:16:14] Speaker 01: We can't argue here that producers is clear enough. [00:16:17] Speaker 01: It doesn't have any exclusions, so we read it broadly. [00:16:20] Speaker 01: We as a court are the ones that interpret statutes. [00:16:23] Speaker 01: I mean, that's their argument, right? [00:16:26] Speaker 01: What's wrong with that? [00:16:27] Speaker 04: Well, I think this Court in Eurodiff has already recognized that it was an undefined term. [00:16:32] Speaker 04: Certainly, the trial court was clear, specific about that in the USCC case that led to Eurodiff. [00:16:39] Speaker 04: This Court cited the Brother decision that also recognized producers was undefined and treated it as a Chevron Step 2 issue. [00:16:47] Speaker 04: not as a Chevron step one issue. [00:16:51] Speaker 04: And I think one important aspect of Eurodiff that relates to the appellant's effort to distinguish that case is that this issue, I mean each case has its own facts, but this issue came up precisely because the Eurodiff appellants were making an argument that's analogous to the argument here. [00:17:08] Speaker 04: They were saying if you look at Commerce's totaling regulation, which is now defunct, that's not really relevant, [00:17:13] Speaker 04: We are defined as producers for purposes of commerce's analysis. [00:17:17] Speaker 04: We are undisputedly, quote unquote, producers for other purposes in commerce's analysis, the actual anti-dumping analysis. [00:17:24] Speaker 04: And so we must be treated as producers for purposes of the industry support determination. [00:17:29] Speaker 04: And both the Court of International Trade and this court said, no, that's not correct. [00:17:32] Speaker 04: It is reasonable for commerce to employ the sufficient production related activities test to define who's a producer to. [00:17:41] Speaker 01: embrace the sufficient production-related activities test? [00:17:46] Speaker 04: It upheld Commerce's application of that test as reasonable. [00:17:50] Speaker 04: And it said that Commerce's interpretation, consistent with the legislative history, that says a company has to have a stake in the industry. [00:18:01] Speaker 04: And further defining that is employing substantial or important production process. [00:18:05] Speaker 04: The way that Commerce [00:18:08] Speaker 04: implements that is through the test that it applies. [00:18:10] Speaker 04: And I think that this court did uphold Commerce's application of that test in that case. [00:18:15] Speaker 04: And in fact, ever since then, this is the test that Commerce has employed. [00:18:20] Speaker 04: Turning to the substantial evidence issue, first of all, I think it is important to note [00:18:33] Speaker 04: that commerce made a determination in this case, and I'm just going to quote it, because it relates to the colloquy that your honors were having with Appellant's Council. [00:18:44] Speaker 04: They found, quote, that the fabrication process does not change the fundamental physical characteristics imparted during the slab production process. [00:18:56] Speaker 04: That's at appendix page 1030. [00:19:00] Speaker 04: More broadly, just widening the lens a little bit, Commerce made two important findings on this substantial evidence issue. [00:19:07] Speaker 04: The first is that they found that there were one, quote unquote, significant differences between the process of producing court slabs and the type of processing that fabricators engage in with respect to the complexity, the investment, the equipment, the employment, [00:19:30] Speaker 04: and the training and expertise, all of those things, significant differences between quartz slab production and the fabrication process. [00:19:40] Speaker 04: It also found that fabricators essentially are taking an existing quartz surface product that someone else produced [00:19:48] Speaker 04: and cutting it for its end use. [00:19:51] Speaker 04: And along the way, they further found that the quartzite production process provided the bulk of the value of the actual end products. [00:20:01] Speaker 04: So it is a matter of line drawing. [00:20:03] Speaker 04: And this court, for example, in the Hager Apparel decision that we cited, has said that at the margins, reasonable minds may ultimately disagree about who should be in or who should be out. [00:20:15] Speaker 04: But that's clearly not this court's role. [00:20:17] Speaker 04: The court doesn't reweigh the evidence. [00:20:19] Speaker 01: Well, I think they make something out of a statement that the government made at some point that fabricators produce final fabricated products. [00:20:29] Speaker 01: to be some sort of concession by the government or acknowledgement that commerce viewed fabricators as producers. [00:20:40] Speaker 01: Why isn't that compelling or important? [00:20:42] Speaker 04: I think we would respectfully disagree with their characterization. [00:20:46] Speaker 04: If one goes back and reads Commerce's determination, the one in this case at page 1025 to 1032 of the record, I think it's fair to say at places they picked up the fabricator's arguments. [00:20:57] Speaker 04: So the place that I see is they talk about [00:21:01] Speaker 04: what the court slab domestic industry described as its production process, and they list the seven steps, and then they describe what the fabricators list as their, you know, quote-unquote production process and list the four steps, and they say these are very different, the one is way more complex than the others, and we don't find the fabricators or producers for industry support purposes. [00:21:21] Speaker 04: Commerce has consistently, and for the most part, even used consistent language to say that this type of processing does not amount to being a producer. [00:21:33] Speaker 03: And I should add that again... I don't think you're answering Chief Judge Prost's question. [00:21:39] Speaker 03: Her question wasn't for you to reanalyze all the facts that Commerce analyzed in assessing who producers were. [00:21:45] Speaker 03: Her question is, how do you address their argument that Commerce previously found that [00:21:52] Speaker 03: produced fabricated slabs are domestic-like products. [00:21:57] Speaker 03: And they found that separate and apart from the unperfected slabs. [00:22:02] Speaker 03: They found two things qualify, right? [00:22:05] Speaker 03: Slabs and the fabricated slabs. [00:22:08] Speaker 03: Well, who is the producer of fabricated slabs? [00:22:11] Speaker 03: Seems like the fabricator, right? [00:22:13] Speaker 03: So we've got two things that qualify as domestic or domestic-like products. [00:22:18] Speaker 03: Slabs, okay, those are clearly the importers of the slabs. [00:22:22] Speaker 03: And fabricated slabs. [00:22:24] Speaker 03: Who's the producer of a fabricated slab? [00:22:26] Speaker 03: Tell me. [00:22:27] Speaker 03: Who is the producer of a fabricated slab? [00:22:29] Speaker 04: Right. [00:22:30] Speaker 04: I'm sorry, Your Honor. [00:22:31] Speaker 04: I think I misunderstood the question. [00:22:33] Speaker 04: Without getting into Your Honor's cookie hypothetical, the answer is no. [00:22:38] Speaker 04: There's not something significant to the fact that slabs are, I'm sorry, fabricated products are produced in [00:22:43] Speaker 04: domestic included in domestic like product because it's exactly as your honor described it. [00:22:47] Speaker 04: The products as a whole are included. [00:22:50] Speaker 04: So you wouldn't just want the quartz slabs included because then everyone would just import the fabricated products, the cut version of the products, and you wouldn't have a decent anti-dupping duty order. [00:23:01] Speaker 04: But there are numerous cases, and we've cited a number of them, the chlorinated isocyanamates, the calcium hypochlorite, even the magnets case. [00:23:08] Speaker 04: And in the magnets case, by the way, the folks who were excluded were literally described as fabricated. [00:23:12] Speaker 03: You're talking at lightning speed. [00:23:14] Speaker 04: I'm sorry. [00:23:14] Speaker 03: Try to slow down. [00:23:15] Speaker 03: Sure. [00:23:15] Speaker 03: I can't follow you quite as quick as you're talking. [00:23:17] Speaker 04: Sure. [00:23:18] Speaker 03: And I want to hear your argument. [00:23:19] Speaker 04: It's common in this practice that something might be included in the scope of what's covered by the anti-dumping duty order without the people who are engaged in some form of processing of that product to be considered producers. [00:23:36] Speaker 04: For example, in the Magnets case that's cited in the briefing, [00:23:39] Speaker 04: as well as the chlorinated isocyanamates and the calcium hypochlorite. [00:23:43] Speaker 04: But in the Magnus case, folks were literally described as fabricators. [00:23:47] Speaker 04: The Magnus come in in sheets. [00:23:48] Speaker 04: They were cutting them. [00:23:49] Speaker 04: They were putting holes in them. [00:23:50] Speaker 04: They were forming them. [00:23:53] Speaker 04: But they weren't ultimately considered producers. [00:23:56] Speaker 04: What I'm trying to say, Your Honor, is that the type of scenario that Your Honor is asking at is pretty common. [00:24:01] Speaker 04: The hypothetical I came up with, not cookies, but this court has a lot of cases that involve piping and piping systems. [00:24:09] Speaker 04: But when commerce does industry support for those cases, the US government doesn't bring in all the plumbers who deal with those systems and may be fabricating them into the pipes in our house and say, all those folks are the producers of the pipes. [00:24:22] Speaker 04: We could go through a lot of different hypotheticals and a lot of different ways to cut it. [00:24:26] Speaker 04: But at the end of the day, this is a line drawing exercise. [00:24:29] Speaker 04: Commerce has to employ a test to say, OK, where does processing and production begin? [00:24:38] Speaker 04: It's important to recognize here that MSI is not a fabricator. [00:24:42] Speaker 03: You're using your co-counsel's time, which is fine by us, but if you want to share with them. [00:24:47] Speaker 04: Fair enough. [00:24:48] Speaker 04: I'll wrap up. [00:24:49] Speaker 04: MSI is not a fabricator. [00:24:50] Speaker 04: It's an importer of foreign products who then got a bunch of fabricators to come in and say, they sell to fabricators, and then they got fabricators to come in and say, we oppose this petition. [00:25:02] Speaker 04: So that's the context here. [00:25:03] Speaker 04: This decision should be sustained. [00:25:06] Speaker 04: Thank you. [00:25:08] Speaker 02: Good morning, Your Honors. [00:25:09] Speaker 02: May it please the Court, this is Luke Meisner on behalf of Cambria Company, LLC. [00:25:14] Speaker 02: I'm going to start with my own hypothetical. [00:25:17] Speaker 02: Let's say a friend makes a cake. [00:25:19] Speaker 02: He procures, measures, mixes all the ingredients, pours the mixtures into a pan, [00:25:24] Speaker 03: Did you come up with this just now or earlier? [00:25:27] Speaker 02: I had this before, Your Honor. [00:25:28] Speaker 02: I like your cookie and the cookie crumble, a hypothetical that I had this prepared. [00:25:33] Speaker 03: Since you spent so much time working on this analogy, go ahead. [00:25:38] Speaker 02: If my friend bakes the cake, I cut the cake and I plate it and I serve it to my guests, do I get to say that I made the cake because it's cut cake and not a cake that came fresh out of the pan? [00:25:50] Speaker 02: That is precisely the question that commerce faced in the proceedings below. [00:25:55] Speaker 03: I feel like you would claim that you made the cake. [00:25:58] Speaker 03: I'm just making a judgment call. [00:25:59] Speaker 02: It's something my dad would probably do to my mom, you know, but it doesn't make it right. [00:26:05] Speaker 02: That is precisely the question that commerce faced in the proceedings below, whether fabricators who cut [00:26:11] Speaker 02: and install slabs of quartz surface products made by companies like Cambria are producers of those products. [00:26:19] Speaker 02: Commerce had to answer this question because the largest US importer, the appellant in this case, MSI, gathered fill-in-the-blank declarations from 270 fabricators who cut and sell imports, stating that they opposed Cambria's petitions against imports from India. [00:26:37] Speaker 02: Fabricators are the biggest customers of producers like Cambria. [00:26:41] Speaker 02: They can purchase domestically produced products from my client, Cambria, or they can purchase imports from a company like MSI. [00:26:49] Speaker 02: The statute does not define producer. [00:26:52] Speaker 02: Thus, to resolve this question, commerce applied a six-factor test to determine whether fabricators are producers. [00:26:58] Speaker 02: In EuroDiff, this court upheld that same test as a reasonable interpretation of the statute. [00:27:03] Speaker 03: I don't know. [00:27:03] Speaker 03: I don't know that we decided the question of what the interpretation of the statute should be so much as we upheld its application in EuroDiff. [00:27:11] Speaker 02: If you look at the remand proceeding in your diff, which was subsequently upheld by the CIT and then later this court, the court sort of characterizes the six factor test that Commer supplied as interpreting the term producer to mean a company that has a stake in the domestic industry, meaning it has substantial operations, substantial manufacturing operations. [00:27:37] Speaker 02: Commer simply down below in the remand proceeding had expanded substantial [00:27:42] Speaker 02: manufacturing operations to mean an entity that has sufficient production-related activities such that it could be a producer, someone who has a stake in the domestic industry. [00:27:55] Speaker 02: I think MSI's resort to the plain and ordinary meaning of the term producer does not resolve the problem faced by commerce. [00:28:04] Speaker 02: Most dictionaries define produce as taking raw materials or components to bring something new of use into existence. [00:28:12] Speaker 02: I see my time is up, so I'll just wrap up. [00:28:15] Speaker 02: These definitions apply to slab producers who consume raw quartz and resin to bring quartz slabs into existence. [00:28:22] Speaker 02: These definitions would not apply to fabricators who take an existing product for use, something that is already part of the domestic-like product, covered by the scope, touch it, cut it. [00:28:33] Speaker 02: They can polish it, do some kind of other processing, and then sell it to the downstream consumer, someone like you or me. [00:28:41] Speaker 02: So for all these reasons, we believe that commerce's determination should be upheld in accordance with law and supported by substantial evidence. [00:28:51] Speaker 03: Okay, thank you, counsel. [00:28:54] Speaker 03: Mr. Stoll, can you raise it to three minutes? [00:28:56] Speaker 03: That'll balance out the time. [00:28:58] Speaker 03: Thank you. [00:29:00] Speaker 05: Thank you, Your Honor. [00:29:01] Speaker 05: I'd just like to address a few points with my friends. [00:29:04] Speaker 05: First, the government said that this case is about whether commerce should decide at the margins. [00:29:08] Speaker 05: I would respectfully disagree. [00:29:10] Speaker 05: In this case, the government and the petitioner already decided. [00:29:14] Speaker 05: They said fabricated court should be considered part of the domestic lead product. [00:29:18] Speaker 05: Once they made that decision, if we could demonstrate that they were making that product, there was no reason for the six factor test. [00:29:24] Speaker 05: Your honors can interpret the statute, frankly, better than the agency, and you can interpret the word producer consistent with what they already did. [00:29:31] Speaker 05: Secondly, I think it's important to distinguish some of the cases that my friend from the government offered. [00:29:37] Speaker 05: He's talking about cases, Your Honors, where nobody put up their hand to say that they wanted to be producers. [00:29:42] Speaker 05: You might say, this doesn't matter, this is a factual issue, Mr. Stoll, but I would point out that the statute [00:29:48] Speaker 05: Congress's words specifically say that commerce has to consider the views expressed by producers. [00:29:54] Speaker 05: So it's very important that in those other cases, nobody expressed their views. [00:29:58] Speaker 05: Here, Your Honors, at minimum, we have 270 fabricators who put up their hands and ask for their views to be considered. [00:30:04] Speaker 05: That's a materially different issue that goes to the purpose and the intent of the statute. [00:30:09] Speaker 05: Third, let me talk a little bit about Eurodeath. [00:30:10] Speaker 05: And Judge Gross, of course, was on the panel, so I defer to her. [00:30:14] Speaker 05: But I think there's a few important things. [00:30:16] Speaker 05: The case does not discuss production-related activities test. [00:30:19] Speaker 05: Those terms are never mentioned in this court's opinion. [00:30:22] Speaker 05: So I don't believe it's fair to say that that test has been upheld. [00:30:25] Speaker 05: It's never been addressed directly by this court. [00:30:28] Speaker 05: Secondly, this court directly addressed the statute and the intent of the statute. [00:30:34] Speaker 05: So you've shown that you're able to interpret the word producer. [00:30:38] Speaker 05: In fact, you said that the key thing [00:30:40] Speaker 05: is whether or not the production is substantial or important. [00:30:44] Speaker 05: We agree with that test. [00:30:46] Speaker 05: And I think on that basis, you don't need a six-factor test. [00:30:49] Speaker 05: The record, whether it's substantial evidence, whether it's Chevron Step 2, and I think clearly on Chevron Step 1, you can interpret that based on the statutory language and on your own holding in neurodefinition. [00:31:00] Speaker 05: Third, we haven't touched upon substantial evidence, but I would go back to what my friend from Cambria conceded at page 41 of his brief. [00:31:08] Speaker 05: He already said, [00:31:09] Speaker 05: several things that point out that there was substantial and important manufacturing. [00:31:13] Speaker 05: And in terms of Commerce's consideration of the evidence, we provided to you a chart in our brief where we showed all of Commerce's citations were to its own decision and to Cambria. [00:31:24] Speaker 05: That doesn't show that they took into account evidence that detracted from their decision. [00:31:28] Speaker 05: They are charged under the substantial evidence test with weighing the evidence and examining it. [00:31:32] Speaker 05: We're not asking you to re-examine the evidence, but they must consider the evidence. [00:31:36] Speaker 05: Their decision clearly was wholly one-sided and relied solely on the petitioner's allegations. [00:31:41] Speaker 05: For those reasons, Your Honor, I suspect I submit the case should be reversed and remanded. [00:31:46] Speaker 03: Thank you. [00:31:47] Speaker 03: I thank Paul Counsel. [00:31:48] Speaker 03: This case is taken under submission.