[00:00:00] Speaker 02:
The next argued case is number 22, 1345, China Custom Manufacturing Company against the United States.

[00:00:09] Speaker 02:
Mr. Tuttle.

[00:00:10] Speaker 00:
Thank you, Your Honor.

[00:00:13] Speaker 02:
When you're ready.

[00:00:15] Speaker 00:
Good morning, Your Honors.

[00:00:16] Speaker 00:
If it please the court, my name is George Tuttle, and I'm here on behalf of China Customs Manufacturing, Inc.

[00:00:22] Speaker 00:
and Green Tech Engineering to contest a scope determination by the United States Department of Commerce

[00:00:29] Speaker 00:
and affirmed by the Court of International Trade in slip-up 21163, decided December 6, 2021.

[00:00:39] Speaker 00:
And it's holding that CCM's rocket three solar panel mounts are within the scope of an anti-dumping and countervailing duty orders on aluminum extrusions from China.

[00:00:53] Speaker 00:
CCM submits that this decision is arbitrary and capricious, not supported by substantial evidence, and is contrary to law.

[00:01:02] Speaker 00:
This court reviews Commerce's final determinations by reapplying the same standards used by the Court of International Trade, that is, whether Commerce's determination is supported by substantial evidence and is not otherwise in accordance with law.

[00:01:17] Speaker 00:
While the courts are required to grant deference to Commerce's interpretation of its orders,

[00:01:24] Speaker 00:
It cannot interpret in order to change the scope of the order, nor can it interpret in order in a manner that's contrary to its terms.

[00:01:35] Speaker 00:
Thus, the articles in questions are mounting devices for solar panels, and they are used in a solar panel mounting system.

[00:01:43] Speaker 00:
We have two points that we'd like to make to the court today.

[00:01:47] Speaker 00:
CCM solar panel mounts consist of aluminum extrusion parts as well as non-aluminum extrusion parts, such as stainless steel nuts and bolts that pass through the aluminum extrusions.

[00:02:00] Speaker 00:
The purpose of the mounts are to clamp solar panels to a mounting rail that's attached to a roof.

[00:02:06] Speaker 00:
At the time of importation, the aluminum extrusion parts

[00:02:10] Speaker 00:
and the non-aluminum extrusion parts are fully assembled and no further processing of the mount after importation is required in order for the mounts to perform their intended functions.

[00:02:25] Speaker 05:
They're sold with several other parts that altogether make up the EcoFast and Rocket System 3.0.

[00:02:34] Speaker 05:
Is that right?

[00:02:35] Speaker 00:
They can be purchased individually, but yes, your honor.

[00:02:39] Speaker 05:
You can buy them off the shelf, all by themselves.

[00:02:43] Speaker 05:
Your mounts?

[00:02:44] Speaker 00:
You can purchase the mounts separately from any of the other components.

[00:02:48] Speaker 00:
That's correct.

[00:02:51] Speaker 05:
Like, I don't know, if I go down to Walmart, I can buy it here.

[00:02:55] Speaker 00:
I don't think they are consumer-ready products, Your Honor.

[00:02:59] Speaker 00:
They're usually installed by contractors.

[00:03:02] Speaker 00:
So yes, a contractor that has a supply or a distributor can go to that supplier or that distributor and purchase individual mounts, as well as the other components that are necessary for the mounting system.

[00:03:20] Speaker 02:
So what would be?

[00:03:21] Speaker 02:
the components.

[00:03:22] Speaker 02:
You can purchase them separately from the solar panels, but what else?

[00:03:28] Speaker 02:
At least your brief leaves the impression that that's all you need, that you buy the mounts.

[00:03:38] Speaker 00:
are briefs going to quite extensive detail regarding the assembly process for the mounting system.

[00:03:45] Speaker 00:
And these are addressed at various points in the appendix.

[00:03:51] Speaker 00:
For example, there's photos and drawings of the various different mounts.

[00:03:56] Speaker 00:
And there are components on appendix pages 258 to 324.

[00:04:02] Speaker 00:
But there's a rail.

[00:04:04] Speaker 00:
That the mount that is attached to the the house the roof And there's other components that are utilized Minor components that then the mount is attached to the rail and then it's clamped onto the solar panel So there are other components that are used in the system however the mounts themselves are

[00:04:28] Speaker 00:
It's our contention, our finished merchandise within the meaning of that definition, within the meaning of the exclusion that's provided within the two orders.

[00:04:41] Speaker 05:
So in the end, you admit that your solar mounts are part of this larger mounting system called the EcoFast and Rocket 3.0 system that has a bunch of different components, including your solar mounts.

[00:04:56] Speaker 05:
But at the same time,

[00:04:58] Speaker 05:
Even though you recognize that they are a part of that system, you're also saying that the part itself is a finished product because there's no further assembly required to make the very amount that you're importing.

[00:05:15] Speaker 00:
Yes, Your Honor, that's exactly the language of the finished merchandise exclusion.

[00:05:20] Speaker 05:
We have a bit of a philosophical question here.

[00:05:23] Speaker 05:
At what level do we consider something to be a finished product itself as opposed to being a component of some larger whole and therefore

[00:05:36] Speaker 05:
the thing that we're looking at can't really be considered a finished merchandise itself because it's merely a piece of some larger thing, some larger downstream product.

[00:05:47] Speaker 00:
I believe that the plain language used in the order regarding the finished merchandise exclusion relates to the imported product itself.

[00:05:58] Speaker 00:
Not that it is used with.

[00:06:00] Speaker 05:
When we look at Shenyang 2015, those curtain wall units, one could argue and imagine that they were finished by themselves.

[00:06:12] Speaker 05:
But at the same time, we said no.

[00:06:16] Speaker 05:
Curtain wall units are clearly just a part of a sub-assembly.

[00:06:20] Speaker 05:
of a curtain wall.

[00:06:22] Speaker 05:
And so all these different units, once they're assembled together, the ultimate downstream product is the curtain wall.

[00:06:30] Speaker 05:
And so a curtain wall unit is merely a part.

[00:06:33] Speaker 05:
And therefore, the curtain wall unit is within the scope of the order.

[00:06:39] Speaker 00:
First, we believe that the curtain wall decisions in Shenyang are different.

[00:06:45] Speaker 00:
And that is because a curtain wall by itself

[00:06:49] Speaker 00:
is defined as the complete wall.

[00:06:52] Speaker 00:
And there's two Shenyang decisions.

[00:06:55] Speaker 00:
The first is the 2015 decision that you talk about, and the second is the 2019 decision.

[00:07:01] Speaker 00:
The 2019 decision focuses on the

[00:07:07] Speaker 00:
finished goods exclusion kit, which isn't an issue here.

[00:07:11] Speaker 00:
So when we focus on the Shenyang decision, the 2015 decision, you're right.

[00:07:16] Speaker 00:
Again, it focuses on the curtain wall unit.

[00:07:22] Speaker 00:
But we think that this decision.

[00:07:23] Speaker 05:
And it didn't matter to our court that the curtain wall unit that was being imported was

[00:07:29] Speaker 05:
itself could be regarded as a finished item.

[00:07:33] Speaker 05:
The key part of the analysis was that the curtain wall unit is simply a portion, a part, a component of something bigger once it gets installed.

[00:07:47] Speaker 05:
And that bigger thing is the curtain wall.

[00:07:49] Speaker 05:
So by analogy, why wouldn't we also do what the CIT did here, which is to look at your component, your

[00:07:59] Speaker 05:
mount, solar panel mount, as being just a part of a larger assembly, i.e.

[00:08:06] Speaker 05:
the eco-fastened rocket 3.0 solar mounting roof system?

[00:08:12] Speaker 00:
I think there's a distinction between curtain walls.

[00:08:15] Speaker 00:
I think they're quite unique.

[00:08:16] Speaker 00:
And I think that came out in the decisions themselves, where we have individual mounts.

[00:08:23] Speaker 00:
You can buy any number of individual mounts.

[00:08:26] Speaker 03:
But I think that it goes back to looking at the example.

[00:08:35] Speaker 03:
Do you understand what I'm getting at?

[00:08:38] Speaker 00:
I do.

[00:08:38] Speaker 00:
But I think that's looking at the wrong part of the issue again.

[00:08:43] Speaker 00:
Because the definition of a finished merchandise is defined explicitly within the scope of the orders.

[00:08:53] Speaker 00:
So I think we have to look at exactly what that merchandise is.

[00:08:58] Speaker 00:
and ask ourselves, is it finished within the scope of that language used in the order?

[00:09:05] Speaker 00:
Just like it gives a list of exemplars, right?

[00:09:08] Speaker 00:
Remember the doors.

[00:09:09] Speaker 03:
Hold on.

[00:09:10] Speaker 03:
I have a question.

[00:09:11] Speaker 03:
What do you contend fully and permanently assembled and complete means?

[00:09:16] Speaker 03:
In your opinion, what does that mean?

[00:09:17] Speaker 00:
It means that whatever I'm importing that is before me is fully assembled,

[00:09:25] Speaker 00:
It requires no additional products to be the imported merchandise.

[00:09:32] Speaker 00:
And it's ready for use at the time of importation.

[00:09:36] Speaker 00:
That's what I think it means.

[00:09:38] Speaker 00:
The plain language of that.

[00:09:40] Speaker 00:
And that's borne out by decisions

[00:09:43] Speaker 00:
if we can say it's ready for use as is.

[00:09:48] Speaker 00:
And this was even better.

[00:09:50] Speaker 05:
I don't think it's borne out by our decision in Shenyang 2015.

[00:09:53] Speaker 05:
I don't think we said anything like, well, we certainly didn't say the curtain wall unit is a finished good.

[00:10:01] Speaker 00:
Correct, it did not.

[00:10:03] Speaker 05:
We said it's a part of a finished good.

[00:10:06] Speaker 05:
And we didn't say anything like a component of some larger assembly can be considered a finished good.

[00:10:13] Speaker 05:
We said, no, that part is a part.

[00:10:17] Speaker 05:
And so therefore, it's included in the order.

[00:10:19] Speaker 05:
So you have to explain to me right now why we can get around Shenyang 2015.

[00:10:27] Speaker 05:
Because right now, assume for the moment, that I don't see how we can.

[00:10:33] Speaker 00:
Well, again, factually, when I look at the description of a curtain wall, it is not defined by units, but it's defined by the entire length of the wall.

[00:10:46] Speaker 00:
And it's no different than the examples provided in the order regarding finished merchandise, doors and complete windows.

[00:11:02] Speaker 00:
Those are imported.

[00:11:03] Speaker 00:
They're ready to use.

[00:11:04] Speaker 00:
But they also have to be installed in a house.

[00:11:07] Speaker 00:
They have to be installed in a home.

[00:11:09] Speaker 00:
And just like the threshold or threshold units that were the subject of Columbia products and worldwide doors that were part of the decisions by Judge Stansu recently in December, he raised the very question that we're talking about here.

[00:11:27] Speaker 00:
If those are sub-assemblies, as argued by the government, but they're also finished units because they are imported as is, ready to be used, then we have this interesting question about does the sub-assembly rule

[00:11:45] Speaker 00:
supersede the finished good exclusion?

[00:11:48] Speaker 00:
What do we do when we have both?

[00:11:50] Speaker 00:
So I think that's this very similar type of issue that's presented before us today.

[00:11:57] Speaker 00:
But I do think that Xin Yang 2015 is distinguishable from our mounts because of the very nature of a curtain wall is that it extends

[00:12:10] Speaker 00:
as long as in various different units, depending on how long the wall is intended to be.

[00:12:18] Speaker 00:
A curtain wall is its entirety.

[00:12:20] Speaker 05:
That's the point.

[00:12:21] Speaker 05:
The point in Shenyang is trying to figure out, let's look at the imported item.

[00:12:25] Speaker 05:
It was a curtain wall unit.

[00:12:27] Speaker 05:
And let's figure out what it's intended for.

[00:12:29] Speaker 05:
And what it was intended for, as you just noted, was to be used with a combination of other curtain wall units to make

[00:12:38] Speaker 05:
curtain wall.

[00:12:39] Speaker 05:
That was the intended use of the curtain wall unit and that's why it could only be regarded as a part of a finished product, not the finished product itself.

[00:12:49] Speaker 05:
Same here with your mounts.

[00:12:52] Speaker 05:
What is the intended use of your mount?

[00:12:54] Speaker 05:
It is intended to be used with a whole bunch of other components to create the EcoFast and Rocket 3.0 mounting system and all together in combination with

[00:13:03] Speaker 05:
they serve as a functional unit.

[00:13:07] Speaker 05:
And that's the intended use of your little component mount.

[00:13:11] Speaker 00:
Just like a door.

[00:13:12] Speaker 05:
And so for that reason, I don't see how we can think any differently about your little solar mounts compared to the curtain wall units in Shenyang 25.

[00:13:20] Speaker 00:
It's no different than a door or a window.

[00:13:23] Speaker 00:
Door or a window, if imported, complete and fully functional, fully assembled,

[00:13:30] Speaker 00:
is a finished good, a finished merchandise, as explained by the plain language of the order in the examples that are given.

[00:13:37] Speaker 00:
But in and of themselves, they are nothing.

[00:13:40] Speaker 00:
They can't function as intended.

[00:13:44] Speaker 00:
They have to be combined with something else.

[00:13:46] Speaker 00:
So I think we have to look at the plain language of the order and interpret it exactly as it reads.

[00:13:53] Speaker 00:
And if, in fact, there is some

[00:13:58] Speaker 00:
The question that is really before the court is whether that sub-assembling language, A, was intended to apply to finished merchandise, which I don't think it originally was.

[00:14:09] Speaker 00:
That was something a later developed argument.

[00:14:11] Speaker 00:
And second, I think that it wasn't intended to supersede the finished merchandise exclusion.

[00:14:20] Speaker 00:
If a good is still finished merchandise, that is if it's imported in its complete and final form,

[00:14:26] Speaker 00:
ready to be used as is, based on the language of the order, then the finished merchandise exclusion applies or supersedes the sub-assembly rule.

[00:14:36] Speaker 02:
Let's hear from the other side, and you'll have everybody.

[00:14:39] Speaker 00:
Thank you.

[00:14:43] Speaker 01:
Good morning, Your Honors.

[00:14:44] Speaker 01:
May it please the Court?

[00:14:46] Speaker 01:
Over 10 years of litigation establishes that the products at issue are sub-assemblies that cannot be excluded

[00:14:53] Speaker 01:
from the scope of the orders as finished merchandise.

[00:14:56] Speaker 02:
Would you explain the policy, the philosophy?

[00:15:03] Speaker 02:
Here we have what you're calling a sub-assembly.

[00:15:06] Speaker 02:
It's complete in itself.

[00:15:08] Speaker 02:
If they just put a few screws in the package, you'd have a kit or some of the other exceptions that are provided.

[00:15:17] Speaker 02:
Why should there be this significant distinction

[00:15:22] Speaker 02:
that we're litigating.

[00:15:25] Speaker 01:
Yes, Your Honor, it comes down to a functional analysis.

[00:15:29] Speaker 01:
And the product at issue.

[00:15:31] Speaker 02:
I asked for the policy reason.

[00:15:33] Speaker 02:
Why is this curious line drawn?

[00:15:37] Speaker 02:
You put the screws in the package, then it's a complete package.

[00:15:41] Speaker 02:
It's a kit.

[00:15:42] Speaker 02:
It has one classification.

[00:15:44] Speaker 02:
If they're in a separate package, then it's a sub-assembly, and it has a different classification.

[00:15:52] Speaker 01:
First of all, Your Honor, in this case, it would take more than adding a couple screws.

[00:15:58] Speaker 02:
It doesn't say.

[00:15:59] Speaker 02:
It says that these mounts are fitted for the solar panels.

[00:16:05] Speaker 02:
What you have to do is affix them in place.

[00:16:08] Speaker 01:
There are actually many steps that are required for the installation and many other products as shown at appendix 300.

[00:16:17] Speaker 01:
You have to have a slide.

[00:16:22] Speaker 01:
that is attached to the roof.

[00:16:24] Speaker 01:
It depends on the type of roof, but you might have to have something underneath the slide.

[00:16:29] Speaker 01:
You have to then tighten the mount onto the slide itself.

[00:16:34] Speaker 01:
You have to attach a skirt to the mount, which is the product at issue.

[00:16:39] Speaker 01:
You have to have a coupling that attaches different pieces of the skirt together.

[00:16:43] Speaker 02:
This is the carpentry.

[00:16:45] Speaker 02:
This is the labor.

[00:16:46] Speaker 02:
This isn't something that's provided

[00:16:49] Speaker 02:
that's imported, is that correct?

[00:16:52] Speaker 01:
The products that I just mentioned, Your Honor?

[00:16:54] Speaker 02:
Any of the things that you're talking about are labor-intensive installation of solar panels.

[00:17:02] Speaker 02:
No one ever said that it wasn't sufficiently complex and demanding.

[00:17:08] Speaker 01:
Of course, Your Honor.

[00:17:10] Speaker 01:
The plain language of the scope of the order demonstrates that if you have a part

[00:17:17] Speaker 01:
whose sole function is to be incorporated into a broader system here, a solar panel mounting system, that is within the scope of the orders.

[00:17:28] Speaker 01:
It is only once you have a permanently assembled and complete product that something is excluded from the scope of the orders.

[00:17:37] Speaker 01:
And that is how the orders are written.

[00:17:39] Speaker 01:
That is how commerce interprets the orders.

[00:17:42] Speaker 01:
And that is how this court has instructed

[00:17:45] Speaker 01:
commerce to interpret the orders.

[00:17:47] Speaker 02:
But solar panels are excluded by statute.

[00:17:51] Speaker 02:
So it seems very curious that the mounts for the panels should have a different treatment.

[00:18:00] Speaker 01:
Well, I think it's key to keep in mind that these mounts are one of many different parts that are required to form a solar panel mounting system.

[00:18:14] Speaker 01:
There is no utility to these products until they are connected to multiple other products.

[00:18:21] Speaker 02:
Exactly.

[00:18:22] Speaker 02:
Exactly.

[00:18:25] Speaker 02:
Does that help you?

[00:18:26] Speaker 01:
We think it does, because we think that there is a clear distinction in the scope of the orders between a sub-assembly who cannot function on its own.

[00:18:35] Speaker 01:
As this court said in the 2015 Shen Yang decision, a sub-assembly has no consumptive value on its own.

[00:18:46] Speaker 01:
That product falls squarely within the scope of the orders.

[00:18:49] Speaker 01:
And multiple decisions of this court show that there is a clear delineation between that product, a sub-assembly, and a finished product.

[00:19:00] Speaker 01:
Here, a solar mounting system.

[00:19:02] Speaker 03:
Council, could you engage with the finished motion dyes exclusion and those examples?

[00:19:09] Speaker 03:
So opposing counsel was talking about some of the examples that were identified there, such as doors with glass or vinyl, and kind of distinguished those examples from what was covered in Shen Yang 2015, kind of the curtain wall units.

[00:19:23] Speaker 03:
Just kind of give me, in your opinion, what's the distinction between those examples and how we treat the curtain wall units in Shen Yang 2015.

[00:19:31] Speaker 01:
Yes, Your Honor.

[00:19:32] Speaker 01:
Well, I don't want to speak too much about a hypothetical product because, of course, every scope ruling is a fact-based determination.

[00:19:41] Speaker 01:
But a window with glass is a finished product.

[00:19:46] Speaker 01:
It can function on its own.

[00:19:48] Speaker 01:
A consumer might go into a store and purchase that product in and of itself.

[00:19:56] Speaker 01:
No consumer would ever purchase a solar mount on its own without

[00:20:01] Speaker 01:
the four specific products that are part of the same system.

[00:20:04] Speaker 01:
It's not just that you can buy any slide or any coupling or any erase skirt.

[00:20:10] Speaker 01:
You have to buy those specific products for this specific system before the solar mounts at issue can do anything.

[00:20:18] Speaker 02:
But why would they buy a solar panel when they'd have to buy something on which to mount it?

[00:20:29] Speaker 01:
Well, you do need a completed solar mounting system to mount a solar panel.

[00:20:37] Speaker 02:
So why should the panels be excluded and the mounts included?

[00:20:44] Speaker 01:
Well, the mounts are one part of the solar mounting system.

[00:20:50] Speaker 02:
Exactly.

[00:20:54] Speaker 02:
Exactly, to understand why there's a different treatment

[00:20:59] Speaker 02:
I'm trying to understand the reason for the different treatment.

[00:21:02] Speaker 02:
It looks to me as if it could just as well have been an oversight.

[00:21:09] Speaker 02:
Are you talking about an oversight in drafting of- In treating the solar panels and the solar mounts differently.

[00:21:18] Speaker 01:
And are you referring to the fact that solar panels are within the language of the orders?

[00:21:23] Speaker 02:
The solar panels are excluded.

[00:21:26] Speaker 02:
The mounts are included.

[00:21:30] Speaker 01:
If commerce were to have solar panels in front of it, it would still have to go through the same analysis that it took in this case.

[00:21:38] Speaker 01:
It would look at the imported product, and it would determine, is it partially assembled merchandise, or is it fully assembled and completed merchandise?

[00:21:48] Speaker 01:
So if a solar panel.

[00:21:50] Speaker 05:
I don't know why you're saying that about solar panels.

[00:21:52] Speaker 05:
The order plainly says solar panels are excluded from the order.

[00:21:56] Speaker 05:
So why would we do a roundup analysis

[00:21:59] Speaker 05:
on whether solar panels are finished merchandise or not.

[00:22:02] Speaker 05:
We would still have to look at the product and understand if... If it is a solar panel, then it's excluded by the plain language of this order.

[00:22:11] Speaker 05:
Is that not correct?

[00:22:13] Speaker 01:
Once again, it's hard to hypothesize about a product that's not in front of us without knowing all the facts of that.

[00:22:19] Speaker 05:
Once we conclude that the thing in front of us is a solar panel, is it not true that that solar panel is excluded by the plain language of the order?

[00:22:27] Speaker 01:
If it were a fully assembled and completed product, then that product would be.

[00:22:34] Speaker 01:
Here, we do not have a fully assembled and completed solar mounting system.

[00:22:39] Speaker 01:
So the analysis is different than the hypothetical solar panel.

[00:22:47] Speaker 01:
But in any case, commerce goes through the same process.

[00:22:50] Speaker 01:
It starts with the plain language of the order, and then it looks at the

[00:22:54] Speaker 01:
the specific facts of the product in front of us, in front of commerce.

[00:22:58] Speaker 01:
And there is a clear distinction that is set forth in, again, the 10 years of litigation from this court that says, if it's partially assembled, it's excluded as sub-assemblies.

[00:23:11] Speaker 01:
If it's fully assembled and complete at the time of entry, then that product is finished merchandise.

[00:23:19] Speaker 01:
And a sub-assembly can never be

[00:23:22] Speaker 01:
excluded as finished merchandise.

[00:23:24] Speaker 05:
We understand the technical analysis of the words of the order, but I don't think I heard you directly respond to what I think was one of Judge Newman's original questions, which is, what is the policy behind including subassemblies into the order when

[00:23:50] Speaker 05:
whatever is being imported, perhaps all that's needed is just one extra item, perhaps a bracket or something.

[00:23:58] Speaker 05:
So if these mounts that are being imported, if all that was needed was some bracket to attach to the imported solar mount to create an overall solar panel mounting system,

[00:24:10] Speaker 05:
What purpose are we serving by saying, oh, OK, well, if you only import the solar map by itself, that's going to be included in the order.

[00:24:22] Speaker 05:
On the other hand, if you imported that same solar map with that bracket together, you threw them in a plastic bag together and say, here, this is what I'm importing now.

[00:24:32] Speaker 05:
All of a sudden, we say, oh, now we're not so worried about whatever we're trying to protect.

[00:24:39] Speaker 05:
with the domestic industry.

[00:24:40] Speaker 05:
And so now that bag with the solar mount and the bracket is excluded from the order.

[00:24:47] Speaker 05:
Do you understand the question?

[00:24:48] Speaker 01:
I do, Your Honor, and I can't speak.

[00:24:50] Speaker 05:
So what's the policy purpose behind excluding the solar mount, or including the solar mount by itself, but excluding the solar mount with my hypothetical bracket?

[00:25:05] Speaker 01:
Your Honor, in that case, I can't speak to what the policy

[00:25:08] Speaker 01:
is between those two very similar products.

[00:25:13] Speaker 01:
I can just speak to the plain language of the orders and note that there is this distinction drawn.

[00:25:22] Speaker 01:
And that goes back to the way the orders are drafted and the way this court has interpreted those orders.

[00:25:29] Speaker 01:
And there is a distinction between the two products that you just mentioned.

[00:25:36] Speaker 01:
Commerce is bound by the plain language of the orders, and commerce is bound by the decisions of this court.

[00:25:43] Speaker 01:
And as you noted, the key part of the 2015 Sheng Yang decision is that curtain, well, in that case, it was that a curtain wall is a component of something bigger.

[00:25:56] Speaker 01:
And here, too, the solar mounts are a component of something bigger.

[00:26:02] Speaker 01:
And this case is governed by Shen Yang.

[00:26:04] Speaker 01:
It's simply incorrect that that case was product-specific.

[00:26:08] Speaker 05:
Is the curtain wall a finished product?

[00:26:10] Speaker 01:
A curtain wall?

[00:26:11] Speaker 01:
Yes.

[00:26:11] Speaker 01:
Yes, Your Honor.

[00:26:12] Speaker 05:
OK.

[00:26:13] Speaker 05:
Even though that curtain wall was supposed to be part of something bigger, i.e.

[00:26:18] Speaker 05:
a building?

[00:26:20] Speaker 01:
I will concede that drawing a distinction between a sub-assembly and a finished product is not something that's susceptible to a bright line rule, because

[00:26:30] Speaker 01:
a wall becomes part of a building, a building becomes part of a city block.

[00:26:35] Speaker 05:
So part of something bigger maybe isn't the right rule to think of, because you just said there shouldn't be a bright line rule.

[00:26:43] Speaker 01:
It comes back to a functional analysis and whether something's sole purpose is to be incorporated into a downstream product, whether it has any consumptive value beyond being, in this case, for example, attached to four other specific components.

[00:27:01] Speaker 01:
The court doesn't need to decide what the bright line rule is in this case.

[00:27:08] Speaker 01:
In this case, the product at issue is clearly only intended for incorporation into a downstream product, and it falls within the scope of the orders.

[00:27:18] Speaker 03:
So in your opinion, the solar mount example is actually an easier case than maybe the curtain wall unit makes it up.

[00:27:24] Speaker 01:
Is that what you're hearing?

[00:27:25] Speaker 01:
Yes, Your Honor.

[00:27:25] Speaker 01:
In that case, the finished product was a curtain wall.

[00:27:29] Speaker 01:
can be an entire side of a building.

[00:27:32] Speaker 01:
Here, the finished product is a solar mounting system, not even the whole side of a building.

[00:27:44] Speaker 01:
You cannot mount anything.

[00:27:48] Speaker 01:
You cannot have any solar panel system without taking the product at issue and attaching it to multiple other components.

[00:28:00] Speaker 01:
So yes, we would agree that in this case, we are even further away from finished merchandise than we were in Shenyang when we had pieces that interlocked together to potentially form the entire non-structural facade of an office building.

[00:28:20] Speaker 01:
Thank you.

[00:28:21] Speaker 01:
Thank you, Your Honors.

[00:28:26] Speaker 04:
Thank you, Your Honor.

[00:28:27] Speaker 04:
Robert DeFrancisco on behalf of the ADFTC Fair Trade Committee.

[00:28:30] Speaker 04:
I'd just like to hit a few points that Your Honors were raising earlier, going back to the policy issue Your Honor raised.

[00:28:38] Speaker 04:
What we just heard was that this mounting system, or the mount itself, is two pieces of extruded aluminum and nuts and bolts to hold it together.

[00:28:46] Speaker 04:
Very similar to what this court looked at in the appliance handle cases, the Meridian and the Whirlpool cases, where we had an appliance handle with a plastic end cap.

[00:28:54] Speaker 04:
There was no question that when the appliance sampler came in with the plastic end cap but not attached to it, it was subject merchandise and it didn't qualify as a finished goods kit.

[00:29:03] Speaker 04:
Same would apply here.

[00:29:05] Speaker 04:
If you had the two pieces of extruded aluminum and the nuts and bolts, they were all in a package together, it'd be subject merchandise.

[00:29:12] Speaker 04:
The two portions of the clamps have the nuts and bolts attached to it, so it's assembled.

[00:29:17] Speaker 04:
And this court has found that assemblies can be subject merchandise, just like the curtain wall units are assemblies that are subject merchandise.

[00:29:25] Speaker 04:
And the court asked commerce in the Meridian and Whirlpool remands to go back and look at the degree to which the finished merchandise exemption applies, which is what they did.

[00:29:34] Speaker 04:
And they performed this fact-finding analysis to look at,

[00:29:38] Speaker 04:
the degree to which these intermediate or unfinished products satisfy the sub-assembly language.

[00:29:44] Speaker 04:
To do what counsel is asking the court to do would read the sub-assembly language that's in the scope out of the scope entirely.

[00:29:52] Speaker 04:
It wouldn't exist, which is the problem we had in the door threshold cases that he was referring to.

[00:29:59] Speaker 04:
To Your Honor's question about including a bracket or a minor component,

[00:30:04] Speaker 04:
In my view, the policy decision here is the degree to which these other components are necessary to finish the product and make it more than a sub-assembly.

[00:30:16] Speaker 04:
It becomes the finished product itself.

[00:30:18] Speaker 04:
Throwing in a minor component, like a bracket, is a means of easily circumventing the order and undermining the entire order.

[00:30:25] Speaker 04:
And that's something that Commerce is doing in its intermediate product analysis.

[00:30:29] Speaker 04:
It's evaluating

[00:30:31] Speaker 04:
where that line is.

[00:30:32] Speaker 04:
And in this case, as Your Honor said, this line is pretty clear.

[00:30:35] Speaker 04:
This is just two pieces of extruded aluminum and some nuts and bolts.

[00:30:38] Speaker 04:
And they just happen to be attached together.

[00:30:40] Speaker 04:
It's an assembly, and it should be subject merchandise.

[00:30:43] Speaker 04:
Just quickly to Your Honor's other question.

[00:30:45] Speaker 02:
Yes, Your Honor.

[00:30:47] Speaker 02:
Isn't the reason much simpler and much more obvious?

[00:30:51] Speaker 02:
In one case, there's a domestic industry.

[00:30:54] Speaker 02:
And in the other case, there isn't.

[00:30:57] Speaker 02:
or in terms of the public policy for the solar panels.

[00:31:01] Speaker 02:
But for all these other areas, this is domestic industry.

[00:31:05] Speaker 02:
There is a question of relative prices and protectionism, all of the underlying reasons for these tariffs.

[00:31:15] Speaker 04:
Yes, Your Honor, you're absolutely right.

[00:31:17] Speaker 04:
When these scopes and these cases are constructed,

[00:31:21] Speaker 04:
What you're trying to do is cover the products that the domestic industry produces.

[00:31:25] Speaker 04:
And in this case, the domestic industry produces not just the basic aluminum extrusion.

[00:31:30] Speaker 04:
They fabricate these extrusions into these downstream sub-assemblies, in this case, the mounting clamp.

[00:31:36] Speaker 04:
In the appliance handle case, in that case, the US aluminum extruders fabricated those appliance handles.

[00:31:43] Speaker 04:
And when initially, Commerce found

[00:31:45] Speaker 04:
First, they were covered, and then they were taken out by the lower court.

[00:31:49] Speaker 04:
That business went away.

[00:31:50] Speaker 04:
Those US aluminum extruders, that business disappeared until the case was overturned and that product came back.

[00:31:57] Speaker 04:
So that's exactly what Commerce is trying to do here is look at what the domestic industry is producing.

[00:32:04] Speaker 04:
It's not making solar panels.

[00:32:05] Speaker 04:
They don't make solar panels.

[00:32:07] Speaker 04:
They don't make the finished curtain wall.

[00:32:09] Speaker 04:
But they do make the parts that go into those units in the sub-assemblies, and they make those sub-assemblies.

[00:32:15] Speaker 04:
which is what's being covered here, a question that was asked in the earlier panel as it relates to, can you purchase these mounts off the shelf?

[00:32:24] Speaker 04:
And the answer that was given is nowhere in the record.

[00:32:30] Speaker 04:
There is no record evidence that these are sold off the shelf, number one.

[00:32:34] Speaker 04:
Number two, in their own submission, both to Commerce and to the lower court, they themselves describe these mounts as sub-assemblies and parts for the mounting system.

[00:32:45] Speaker 04:
And on that, Rick, it is clear that this is subject merchandise, because parts and sub-assemblies are covered.

[00:32:50] Speaker 04:
And with that, I see my time's expired.

[00:32:52] Speaker 03:
One question, though.

[00:32:53] Speaker 04:
Yes.

[00:32:53] Speaker 03:
If we affirm on the merits, do we need to reach the motion to strike?

[00:32:59] Speaker 04:
No.

[00:33:00] Speaker 04:
You can affirm on the merits without reaching the motion to strike.

[00:33:05] Speaker 04:
The motion to strike does highlight

[00:33:09] Speaker 04:
multiple irregularities and revisions to their brief that we think are inappropriate.

[00:33:16] Speaker 04:
But taking those aside, I think you can still rule on the merits without addressing the motion to strike.

[00:33:22] Speaker 04:
Is there any other questions?

[00:33:24] Speaker 02:
Thank you.

[00:33:26] Speaker 02:
Thank you, Your Honor.

[00:33:29] Speaker 00:
A couple of things.

[00:33:36] Speaker 00:
I wanted to address to the court

[00:33:39] Speaker 00:
The first is the comment sold off the shelf.

[00:33:43] Speaker 00:
I think I tried to clarify that these are not something that you would go to Home Depot and purchase, but that a contractor could go to a distributor

[00:33:53] Speaker 00:
or an outlet to where they purchased their other components to buy the solar mounts.

[00:34:00] Speaker 00:
So I wanted to make that point.

[00:34:01] Speaker 00:
The second point that I wanted to make is the Meridian decision that was just referenced.

[00:34:07] Speaker 00:
And I think if we look at the history of the Meridian decision and Meridian III and Meridian II, what really happened is that the Court of Appeals

[00:34:20] Speaker 00:
had vacated the decision of the Court of International Trade, but still remanded the decision back to Commerce to decide the question of whether the door handles themselves constituted finished merchandise.

[00:34:35] Speaker 00:
In Commerce's decision, they concluded

[00:34:39] Speaker 00:
that they'd never reached the issue of whether or not they constituted finished merchandise because at that point they raised the new issue of whether they were sub-assemblies or not.

[00:34:51] Speaker 00:
This is an issue that was recently introduced at that time frame through the Whirlpool case.

[00:34:58] Speaker 00:
So in the first few Meridian decisions, the sub-assembly issue was never raised.

[00:35:04] Speaker 00:
It was only after the Whirlpool case

[00:35:06] Speaker 00:
and before Meridian III that the sub-assembly issue was addressed.

[00:35:11] Speaker 00:
And so Commerce decided that the door handles were sub-assemblies when they reached their second remand determination in the Meridian litigation.

[00:35:24] Speaker 00:
That determination was never reviewed by a court, either by the CIT or by this court.

[00:35:32] Speaker 00:
And that's an issue that's here today before this court.

[00:35:35] Speaker 00:
What happened when the CIT affirmed the Meridian remand is that it said, the plaintiffs are not contesting this.

[00:35:44] Speaker 00:
Therefore, we are affirming the Meridian decision.

[00:35:47] Speaker 00:
But the question on the application of the sub-assembly rule to the Meridian

[00:35:53] Speaker 00:
decision was never validated or reviewed by the court.

[00:35:58] Speaker 00:
As a final comment, I wanted to address one of the points raised by Ms.

[00:36:01] Speaker 00:
Schickman.

[00:36:02] Speaker 00:
And that was a question of whether there was something, something value to the

[00:36:09] Speaker 00:
to the mounts as they are imported and ready for purchase.

[00:36:14] Speaker 00:
And before I get to that, I want to say this one thing.

[00:36:17] Speaker 00:
The expressed exclusion language is, this scope excludes finished merchandise containing aluminum extrusions as parts that are fully and permanently assembled and complete at the time of importation.

[00:36:31] Speaker 00:
That's the plain meaning of the language.

[00:36:33] Speaker 00:
That's what the order says.

[00:36:35] Speaker 00:
So if I have an article that is fully and permanently assembled and completed at the time of entry, that is finished merchandise.

[00:36:44] Speaker 00:
And that's what this court should conclude.

[00:36:47] Speaker 00:
As to no utility to the mounts, there's no utility to a door.

[00:36:52] Speaker 00:
There's no utility to a window until it's installed in a house.

[00:36:56] Speaker 00:
The same thing for a solar panel.

[00:36:58] Speaker 00:
That solar panel can't do anything in and of itself.

[00:37:02] Speaker 00:
It still has to be connected to a roof.

[00:37:05] Speaker 00:
It still has to have what they call a solar inverter that converts the power from the solar cell

[00:37:11] Speaker 00:
to a power that can be used to the house.

[00:37:14] Speaker 00:
So a solar cell in and of itself won't have any consumptive value until it becomes part of something bigger.

[00:37:21] Speaker 00:
A house, a roof, just like the solar mounts in this case, can't become something until it's part of a solar.

[00:37:29] Speaker 00:
We admit, we can see that it has to be used as a part of a solar panel mounting system.

[00:37:36] Speaker 00:
But in and of itself, it is finished at the time it's imported.

[00:37:39] Speaker 00:
And I think that's the plain language of the order.

[00:37:43] Speaker 00:
And that's what the court needs to address.

[00:37:46] Speaker 00:
Thank you.