[00:00:00] Speaker 01: Our third case this morning is number 23, 1093, Vanda Water International Inc. [00:00:06] Speaker 01: versus United States. [00:00:08] Speaker 01: Okay, Mr. Curran. [00:00:10] Speaker 01: We'll hold on just one second, will we? [00:00:13] Speaker 02: Okay. [00:00:13] Speaker 02: May it please the court, I'm Christopher Curran for Sigma. [00:00:18] Speaker 02: I will be limiting my argument to the K-0 issue. [00:00:22] Speaker 03: Your Honors, we'll recall that the K-0 issue raises the question of the plain meaning of the... Mr. Curry, before we get into some of this, what's the current status of the different cases? [00:00:36] Speaker 03: Where are we? [00:00:39] Speaker 02: of the different cases? [00:00:40] Speaker 02: Yes. [00:00:41] Speaker 03: Are you referring... We're an intervenor in this case, right? [00:00:44] Speaker 02: Yeah, we are an intervenor in this case. [00:00:45] Speaker 02: Van de Water has abandoned its position in this case as a result of this case. [00:00:52] Speaker 02: It declared bankruptcy and has not proceeded. [00:00:55] Speaker 02: But we intervened in the CIT and have [00:01:00] Speaker 02: file our Notice of Appeal here, and we've participated in the proceedings above. [00:01:05] Speaker 03: Which case is pending at the CIT? [00:01:07] Speaker 02: It's stayed at the CIT. [00:01:09] Speaker 02: So rather than formally consolidating the three cases, the CIT, I guess out of a concern about proprietary information being shared, [00:01:20] Speaker 02: related the cases. [00:01:22] Speaker 02: And Your Honor may have observed that, for example, the K-0 ruling by the CIT bears the caption of all three cases and describes them as related. [00:01:33] Speaker 03: So today's decision will affect the other staid decisions? [00:01:38] Speaker 03: Yes, in fact. [00:01:39] Speaker 03: Are there any other issues that are raised in those cases that are staid that are not before us today? [00:01:45] Speaker 02: We think not. [00:01:46] Speaker 03: We think that this appeal will... What about the suspension and liquidation issue? [00:01:49] Speaker 02: Well, that doesn't apply to SGMA. [00:01:52] Speaker 02: That issue is only for SCI, a different intervener appellant. [00:01:59] Speaker 02: So that does not concern Sigma or any of the arguments I will be making today. [00:02:06] Speaker 01: From our perspective, Your Honor... Well, that issue is really not in this case, right? [00:02:11] Speaker 02: Well, I leave that to SCI. [00:02:13] Speaker 02: It's not in Sigma's bailiwick. [00:02:16] Speaker 02: I'll say that for sure. [00:02:19] Speaker 02: I read SCI's brief as advancing that argument on its own behalf. [00:02:25] Speaker 01: But in this proceeding, there were no entries that raised that question. [00:02:31] Speaker 01: For Sigma, no. [00:02:33] Speaker 02: Correct. [00:02:34] Speaker 02: All right. [00:02:34] Speaker 02: Go ahead. [00:02:35] Speaker 02: So from Sigma's perspective, this case is about the plain meaning of the anti-dumping duty order. [00:02:42] Speaker 02: And this court will recall our Seller-Mittell case. [00:02:48] Speaker 02: We think that this appeal raises a straightforward application of that case. [00:02:54] Speaker ?: OK. [00:02:54] Speaker 01: give you a little bit different perspective and ask you to comment on it. [00:02:58] Speaker 01: It seems to me that both sides are arguing about things that commerce hasn't addressed. [00:03:04] Speaker 01: And you rely on the plain meaning, the industry practice, perhaps to some extent you rely on the petition, which itself relied on the industry standard. [00:03:19] Speaker 01: But as I read the commerce decision here, [00:03:23] Speaker 01: page 140 of the original decision, page 69 of the remand decision, the commerce just basically brushed aside the industry practice and failed to consider it. [00:03:34] Speaker 01: And there wasn't any decision by commerce either as to the meaning of the industry standard or indeed the significance of these supposed anomalies [00:03:48] Speaker 01: advertising by parties that the government relies on. [00:03:52] Speaker 01: So why shouldn't we send this back to commerce to have them address the issues rather than our doing it de novo? [00:04:01] Speaker 01: I mean, they have the expertise. [00:04:02] Speaker 01: It's not our job in the first instance to be interpreting these orders and determining what the industry practices. [00:04:12] Speaker 02: Well, these industry practice and industry jargon and industry terminology issues were raised below. [00:04:19] Speaker 01: No, I understand that. [00:04:22] Speaker 01: But you and the government seem both to be asking us to construe the order based on our determination of what the industry practice is. [00:04:32] Speaker 01: And what I'm suggesting to you is that it's really, that's not our job. [00:04:36] Speaker 01: Our job is to ask commerce to address the relevant factors. [00:04:41] Speaker 01: And there's a relevant factor here in your view that hasn't been addressed by commerce. [00:04:46] Speaker 01: That is the industry practice. [00:04:49] Speaker 02: Yeah. [00:04:49] Speaker 02: I read our seller Mattel to be addressing that issue, right? [00:04:54] Speaker 02: It concludes that the issue is de novo in this court. [00:04:58] Speaker 02: And there, this court's ruling did not result in a remand. [00:05:02] Speaker 02: It resulted in an analysis and a ruling [00:05:06] Speaker 02: that the products were not covered by the anti-dumping duty order based on its plain meaning. [00:05:12] Speaker 02: So I see no reason why this panel shouldn't follow that same precedent and resolve the issue based on the plain meaning interpreted in light of the industry standards. [00:05:23] Speaker 03: You know how precise with your argument. [00:05:24] Speaker 03: I thought one of your arguments was that commerce aired by not taking an independent standalone review of the [00:05:34] Speaker 03: of the duty order and instead went on to rely on the K-1 materials and that your argument is that it should have, the first error is that it should have had a standalone independent analysis. [00:05:51] Speaker 02: That's true. [00:05:52] Speaker 02: It should have done the independent analysis and then it should have concluded that... That's an argument, correct? [00:05:57] Speaker 02: That's right. [00:05:57] Speaker 02: That's right. [00:05:58] Speaker 03: Yeah, I mean, we read the... How can that be if the regulations at that time permitted commerce, in fact almost mandated commerce, in a scope really to address not only the text of the data order, but also the K-1 materials? [00:06:15] Speaker 03: It uses the word will. [00:06:18] Speaker 02: Well, I think that the judicial gloss on the regulation is that there should be an independent K-0 analysis that precedes any K-1 analysis. [00:06:27] Speaker 02: And we think that Commerce gave short shrift to K-0 here. [00:06:32] Speaker 02: And that's why we're here, because Commerce proceeded. [00:06:36] Speaker 02: They blew past the K-0 and went to K-1 and then ultimately at the CITs. [00:06:41] Speaker 03: I thought maybe they started at the top and said, these are butt-well pipes. [00:06:48] Speaker 03: you know, section by section of the duty order and addressed them and said, now that we've achieved that, let's go to the K-1 materials, which they probably were required to do. [00:07:00] Speaker 02: Well, we certainly read it differently, right? [00:07:03] Speaker 02: We read that the K-0, whatever commerce did as the K-0, didn't take into account the industry standards. [00:07:10] Speaker 01: They refused to consider the industry. [00:07:12] Speaker 01: Right. [00:07:13] Speaker 01: They refused to consider. [00:07:14] Speaker 01: in commerce decisions is saying industry standards are not relevant we're not going to consider it right now if if that's wrong it doesn't seem to me that it's our job to determine to read the industry standards and determine what they're [00:07:30] Speaker 01: what they are because there are fact issues involved in that, including the government's argument that there is inconsistent practice, which suggests that the industry standard and ASME standard is not exclusive. [00:07:43] Speaker 01: So I gather you don't want to remand. [00:07:46] Speaker 02: I don't want to remand. [00:07:47] Speaker 02: I'd like this court to do what it did in our settlement. [00:07:51] Speaker 01: I just don't understand that that's our job to make [00:07:54] Speaker 01: factual determinations about reading industry standards and uh... determine whether the actual practice on which the government relies on is consistent with the industry standard. [00:08:05] Speaker 01: We don't consider this to raise factual issues. [00:08:07] Speaker 02: This is a pure question of law and that's what this court's precedents say. [00:08:11] Speaker 02: It says that the k-zero analysis is a pure question of law. [00:08:14] Speaker 02: That's why it's the notebook review. [00:08:16] Speaker 03: The question of whether certain merchandise needs [00:08:19] Speaker 03: an industry standard. [00:08:23] Speaker 03: That's a factual issue. [00:08:24] Speaker 02: That is, but you don't get to that until first there's a factual question. [00:08:29] Speaker 03: You have a legal question that you've presented to us, but even if you were to prevail there, we wouldn't be able to answer the factual question. [00:08:37] Speaker 03: Commerce has already done that. [00:08:39] Speaker 02: I think if you answered the first question, the K-0 question, there wouldn't be a dispute, there wouldn't be a factual issue, because it would be apparent under the plane, the properly interpreted plane meaning of the order that these welded outlets or branch outlets don't fall within the order. [00:08:57] Speaker 01: I have trouble, you know, I've read the ASME standard, okay, and there's support there for what you're saying, but it's not a hundred percent clear to me. [00:09:06] Speaker 01: what the industry standard is. [00:09:08] Speaker 01: And the government says, here are five examples that are not consistent with the industry standard. [00:09:14] Speaker 01: Why does that not raise a fact issue as to what the industry standard is? [00:09:19] Speaker 02: Because applying ArcelorMittal, the industry standards, you look at the industry standards, you can put pens down. [00:09:28] Speaker 02: That's the industry speaking. [00:09:30] Speaker 01: But you could have an industry standard that's clear, which may have been the case in that case. [00:09:36] Speaker 02: Well, I think it's clear here as well. [00:09:39] Speaker 02: Well, under the standard, it's clear that butt-weld fittings are end-to-end fittings that join two segments of... Because of the figures? [00:09:50] Speaker 02: Well, the figures, yes, and the expert opinions. [00:09:53] Speaker 01: Other than the figures, what's the language in the ASME standard? [00:09:58] Speaker 01: It says that butt well fittings are shown in the figures, but that's not 100% clear. [00:10:05] Speaker 01: But there's nothing like the products either. [00:10:07] Speaker 01: Wait, wait, wait. [00:10:08] Speaker 01: Sorry to interrupt me. [00:10:10] Speaker 01: That's not the same thing as saying industry standard is limited. [00:10:13] Speaker 01: There's, to me, somewhat of an ambiguity there. [00:10:18] Speaker 02: The branch outlets at issue in this case [00:10:23] Speaker 02: do not apply end-to-end at all. [00:10:24] Speaker 02: As the term outlet suggests, it is on the side or wall of the run pipe. [00:10:33] Speaker 02: And as to Van der Water and as to Sigma and as to SCI, that part is welded not with a butt weld, but instead with a fish mouth application to adjust to the contour of the run pipe. [00:10:46] Speaker 02: And at the other end, there's no butt weld there. [00:10:51] Speaker 02: As to all of the [00:10:52] Speaker 02: As to all of the plaintiffs in this case, it's either threaded or grooved, no butt weld. [00:10:57] Speaker 02: So how can there be a branch outlet that falls within the butt weld fitting duty order when there's no butt weld at all associated with these branch outlets? [00:11:09] Speaker 02: That is not a factual issue. [00:11:11] Speaker 02: That is not a leap or a challenge for this court to conclude based on the standards, based on the expert testimony here. [00:11:23] Speaker 02: I see from your reaction, you're not buying this, but I don't see a distinction between what we're asking the court to do here and what this court did in Arcelor Mattel. [00:11:37] Speaker 02: For us, it's a straightforward application that the butt weld fitting anti-dumping duty order cannot apply to products that have no butt weld. [00:11:46] Speaker 01: What's the language of the ASME standard that you say excludes these fittings? [00:11:52] Speaker 02: well i i i think it's apparent throughout and it's reciting in the circle of all of all this is really to the circle declarations no forget about the circle declaration show me where the asm standard itself the language is so clear and exit so i will refer you to the expert reports of circle [00:12:22] Speaker 01: the joint appendix has expert reports we're getting into factual issues. [00:12:27] Speaker 01: Well I don't know about that. [00:12:28] Speaker 01: Is the expert credible, so on and so forth? [00:12:33] Speaker 01: You want us to do this to now, well show me where the ASME standard is so clear that I should say that you're right. [00:12:40] Speaker 02: So the full standards, your honor indicated you've already looked at them, they're in the record, not in the joint appendix, right? [00:12:47] Speaker 02: They're in the record at 1264 [00:12:51] Speaker 01: And I have the ASME standard. [00:12:54] Speaker 01: The version I have is 2003. [00:12:56] Speaker 01: I don't know whether that's the same one that existed in 1992 or not. [00:13:02] Speaker 01: But is that different from the one that's in the record? [00:13:07] Speaker 02: Well, the one that's in the record is 2013. [00:13:10] Speaker 01: I wonder why a 2013 standard is relevant to a 1992 order? [00:13:16] Speaker 02: Well, the scope order, the scope request was made when these were governing. [00:13:24] Speaker 01: the wrong standard. [00:13:26] Speaker 01: We're not interpreting the scope request. [00:13:28] Speaker 01: We're interpreting the order. [00:13:30] Speaker 01: So if there's an ASME standard, it ought to be the ASME standard in effect at the time of the actual order itself. [00:13:37] Speaker 02: Well, I think you will find that there's no material difference between what's in the current or in the 2013 as opposed to the earlier. [00:13:47] Speaker 02: And in fact, I think there's a description of changes that have been made. [00:13:51] Speaker 03: So the argument that you're making now, that's already been argued and decided below. [00:13:56] Speaker 03: Yes. [00:13:57] Speaker 03: Right. [00:13:58] Speaker 03: So you're arguing, you're attacking what you call K.O., the legality of K.O., the commerce made a legal error in not making it a dispositive finding on K.O. [00:14:14] Speaker 02: Right. [00:14:15] Speaker 03: They found ambiguity when... So we keep saying that [00:14:20] Speaker 03: This is a de novo review issue. [00:14:23] Speaker 03: It's de novo only to the extent that [00:14:26] Speaker 03: that we're now sitting in the shoes of the CIT, looking at it, applying the same standard it would apply, and it would apply a substantial evidence standard to review. [00:14:37] Speaker 02: I don't agree with that. [00:14:38] Speaker 02: No, the CIT would not supply de novo. [00:14:41] Speaker 03: This is interesting, because I want to get to the room of disagreement, because our precedent, a long line of precedent has been that [00:14:51] Speaker 03: that we review dead yours through the lenses of the CIT. [00:14:57] Speaker 03: We stand in their shoes. [00:15:00] Speaker 03: It's been a long because it's been over them, but but this particular question is a is a substantial evidence I don't think that's right your honor I I think under Whirlpool and under what happens if we disagree with it you lose you lose in case No, we have a tougher standard and one reason why I'm focusing on case. [00:15:21] Speaker 03: I'm sorry I didn't [00:15:22] Speaker 02: it's a different standard that would apply. [00:15:24] Speaker 03: Okay, so now you have found a little bit of substantial evidence. [00:15:27] Speaker 02: That's right. [00:15:28] Speaker 03: That question's already been decided. [00:15:32] Speaker 03: When we're in arguments, when we start talking about the pipes coming together and the bead, the weld bead and everything, all that's factual in nature. [00:15:43] Speaker 01: I'm sorry. [00:15:44] Speaker 03: Almost been decided already. [00:15:47] Speaker 01: Well, it hasn't been decided, right? [00:15:50] Speaker 01: Because commerce never addressed the industry standard. [00:15:52] Speaker 01: They refused to. [00:15:53] Speaker 01: They refused to do it. [00:15:55] Speaker 01: So there's no decision by commerce on this question. [00:16:00] Speaker 02: But if commerce fails to address something that's presented to them, and then it comes to this court on de novo review, there's nothing stopping this court from engaging in that legal analysis. [00:16:09] Speaker 03: Do you believe that commerce has not ruled on this particular issue, where the butt-well pipes, using the description you're giving, fall into the river? [00:16:18] Speaker 02: I believe they did a drive-by that does not constitute a drive-by zero. [00:16:23] Speaker 03: A drive-by doesn't do anything. [00:16:28] Speaker 03: You want to straddle a line. [00:16:30] Speaker 03: You want the vehicle to go on both sides of the line. [00:16:33] Speaker 03: Did Congress rule, make a rule on the arguments you're making today, that Butwell falls within the... They necessarily did, because they proceeded to K1 and K2. [00:16:47] Speaker 01: They didn't decide this, because they didn't address the industry standard that you're relying on. [00:16:52] Speaker 01: They decided the ultimate question, but they said we're not going to look at the industry standard, right? [00:16:58] Speaker 02: That's right. [00:16:59] Speaker 02: I'm agreeing with both of you because if commerce proceeds to K1 and K2, they're necessarily passing on K0. [00:17:07] Speaker 03: Did they look at the industry standards under K1? [00:17:13] Speaker 02: they did not address them but i don't know if they're going to refer to them or not. [00:17:18] Speaker 02: They're certainly referred to in the petition. [00:17:20] Speaker 03: How about under K2? [00:17:23] Speaker 03: When the CIT remanded and said, I want you to apply K2, did they look at industry senator? [00:17:28] Speaker 02: I don't recall that they did. [00:17:30] Speaker 03: Well, I mean, this is your argument. [00:17:34] Speaker 03: I think that they did. [00:17:36] Speaker 03: I think you're presenting a question that has been [00:17:39] Speaker 03: gone over by the CIT and Commerce, and there's been a decision, it's a factual issue, we have to apply a substantial evidence standard in this case. [00:17:52] Speaker 02: How can that be squared with Whirlpool and Meridian, which says that the question of whether there's ambiguity is a question of law that merits de novo review in this court? [00:18:03] Speaker 02: It can't be squared with those. [00:18:05] Speaker 03: It does say that it merits vanilla review, but it also goes on and says that substantial difference is given to Commerce in its review of the dumping orders. [00:18:17] Speaker 03: And that's basically what substantial evidence is. [00:18:22] Speaker 02: That's once Commerce has gone past K0 and is then addressing K1 and K2, that substantial evidence, the standard applies. [00:18:30] Speaker 02: But not for K0. [00:18:31] Speaker 01: OK. [00:18:34] Speaker 01: All right, we'll give you two minutes for a remodel. [00:18:36] Speaker 01: Thank you. [00:18:38] Speaker 01: Mr. Allen. [00:18:48] Speaker 00: I'd like to address your question first, which was, did commerce address the industry standards issue? [00:18:55] Speaker 00: I think part of the complicating factor here is this is really three scope rulings in the guise of a single case. [00:19:00] Speaker 00: So there are actually three commerce decisions that the court would have to contend with. [00:19:04] Speaker 00: The first, Judge Dyck, is the one you mentioned starting on Appendix page 140. [00:19:08] Speaker 00: That applies to Van de Water, which is not a party in this appeal. [00:19:12] Speaker 00: And this is in footnote six of our brief, is the Sigma decision. [00:19:16] Speaker 00: And that's at 37-24, 37-25. [00:19:21] Speaker 00: And there, I think the court will find that Commerce did address industry standards as it related to Sigma's arguments that it was making. [00:19:27] Speaker 00: But that's not this case. [00:19:29] Speaker 00: Well, SIGMA's arguments, the ones they're raising about whether commerce addressed industry standards, commerce addressed it as it related to the arguments that SIGMA was making. [00:19:40] Speaker 00: Because it was arguing about ASME 16.9 and ANSI standards, and commerce addressed it there because SIGMA was raising those arguments. [00:19:48] Speaker 01: What page are you signing to where they address the arguments? [00:19:52] Speaker 00: 3724 and 3725 of the appendix. [00:19:57] Speaker 01: Which is the second volume? [00:19:59] Speaker 00: It should be the second volume, correct. [00:20:15] Speaker 00: So if you start at the bottom of 3724 and then it loops into 3725. [00:20:28] Speaker 01: But I don't, maybe I'm just reading this quickly, but I don't see that it's actually really addressing the AMSE standard. [00:20:37] Speaker 01: It seems to be saying that they're not relevant. [00:20:43] Speaker 01: It says, this doesn't limit the scope language to include only solely merchandise produced or manufactured to the standards. [00:20:50] Speaker 01: That may be true. [00:20:51] Speaker 01: But the standards are certainly relevant to interpreting the scope order. [00:20:56] Speaker 01: And if commerce has refused to consider them as a relevant criterion, why isn't that error? [00:21:07] Speaker 00: Well, because you see commerce contending with arguments that SIGMA is making. [00:21:10] Speaker 00: It's saying that the ANSI are... Well, it's dismissing them. [00:21:13] Speaker 01: It's not engaging with them. [00:21:14] Speaker 01: It's not saying their view of the industry standard is not right. [00:21:20] Speaker 01: There are all these exceptions. [00:21:21] Speaker 01: It hasn't dealt with the basic question of whether the industry standard would exclude these fittings. [00:21:29] Speaker 01: And what I'm suggesting to you is I don't understand how commerce [00:21:32] Speaker 01: it can render a decision on this without considering relevant industry standards and at least saying they've been outweighed by other things or they're not interpreting the standards correctly. [00:21:44] Speaker 01: I view this order that you're showing us to be the same as the order in the case before us. [00:21:51] Speaker 01: It says industry standards not relevant. [00:21:53] Speaker 01: We're not going to consider it. [00:21:54] Speaker 00: I don't think it's, they're not saying it's not relevant. [00:21:56] Speaker 00: I think Sigma is saying that the ASME, it's the same argument they're making now. [00:22:01] Speaker 00: They're saying the ASCE standard is dispositive on the question about the scope language. [00:22:05] Speaker 00: And what commerce is saying is, well, look, we're looking at it, and no, it's not. [00:22:09] Speaker 00: So in that respect, I do see commerce grappling. [00:22:12] Speaker 01: I don't understand that their argument, the argument of the parties about industry standards, was limiting to that. [00:22:19] Speaker 01: to saying that only consider these if they're dispositive. [00:22:24] Speaker 00: I do think that's the primary thrust there. [00:22:26] Speaker 01: Let's assume that you're wrong about that, OK? [00:22:30] Speaker 01: And that they raise the industry standards. [00:22:35] Speaker 01: Is it not the case that commerce is saying, no, we're not going to consider the industry standards? [00:22:40] Speaker 00: I think you disagree, Judge Deck, and that's fine. [00:22:44] Speaker 00: But I do think commerce is grappling with [00:22:46] Speaker 00: what they're presenting as their argument, and saying it's not dispositive on the question. [00:22:51] Speaker 00: So we need to go beyond the scope of what you're claiming the ANSI says. [00:22:55] Speaker 00: Do you agree that the industry standards are relevant? [00:22:59] Speaker 00: They would be relevant under our solar middle, yes. [00:23:02] Speaker 00: And that's finding precedence. [00:23:03] Speaker 00: So you can't dismiss them and just say we're not going to look at them. [00:23:07] Speaker 00: And again, this is, I think, where we disagree. [00:23:09] Speaker 00: I don't think commerce is dismissing that argument. [00:23:11] Speaker 00: It's actually addressing it square on as Sigma had presented. [00:23:16] Speaker 03: Let me see if I'm clear on this. [00:23:18] Speaker 03: So it seems to me that commerce did address industry standards in its KO analysis, and that it said, [00:23:29] Speaker 03: In view of that, and in view of the text and the language and the physical description here, it's not dispositive, so it went on to K2, to K1. [00:23:38] Speaker 00: Correct. [00:23:39] Speaker 00: That's what happened. [00:23:40] Speaker 00: Yes, your honor. [00:23:41] Speaker 00: And again, commerce is addressing that. [00:23:44] Speaker 03: Commerce never did say that industry standards don't matter, or they don't have weight. [00:23:52] Speaker 03: did not say that they're not important, or did not say we're not going to make any ruling on this. [00:23:59] Speaker 03: It says we've looked at everything under the K-0 minutes, and it's not dispositive. [00:24:06] Speaker 00: So then it went on to? [00:24:07] Speaker 00: Then it went on to K-1, the K-1 contextual indicators. [00:24:11] Speaker 00: One thing I think is important is there are three scope rulings here. [00:24:14] Speaker 01: So just to be clear about this, do you agree that they never decided whether the industry standards excluded these fittings that are the subject of this case? [00:24:26] Speaker 01: I believe that commerce did. [00:24:28] Speaker 01: Did they make such a determination as to the meaning of the industry standards? [00:24:33] Speaker 01: Well, they had to go to K1, and they didn't... [00:24:38] Speaker 01: The question is, did commerce address the question of whether these fittings are within the industry standards? [00:24:46] Speaker 00: The steel branch outlets? [00:24:47] Speaker 03: Yeah. [00:24:48] Speaker 00: It said that they would qualify as a pipe fitting under the industry standards, ultimately when it got to K2. [00:24:56] Speaker 00: Because K1 didn't resolve the question, K0 didn't resolve the question. [00:24:59] Speaker 00: So commerce ultimately had to go all the way down the line to K2 using the channels of trade evidence to figure out how the end users were using the product. [00:25:07] Speaker 01: So if K2, you're saying they determined that these were outside the industry standard? [00:25:16] Speaker 00: That they would be included within the scope of the order. [00:25:20] Speaker 00: I think the industry standard part was inconclusive. [00:25:23] Speaker 00: I think this is what we're getting. [00:25:24] Speaker 00: The industry standard part was inconclusive. [00:25:26] Speaker 01: That's ultimately what commerce is. [00:25:28] Speaker 01: Okay, but where do they address the question of whether these fittings are within or without the industry standard? [00:25:34] Speaker 01: They never addressed that. [00:25:35] Speaker 01: Because the industry standards weren't sufficiently clear. [00:25:38] Speaker 01: Is that correct? [00:25:39] Speaker 01: They never addressed that? [00:25:40] Speaker 00: They addressed it. [00:25:41] Speaker 00: They didn't decide it because the industry standards weren't clear. [00:25:45] Speaker 00: And so they had to move on to K-1. [00:25:47] Speaker 03: Look at Appendix 13. [00:26:04] Speaker 03: Is this the discussion of leadership standards you're referring to? [00:26:08] Speaker 00: Yes, Your Honor. [00:26:10] Speaker 00: And then this is where the trial court refers to Commerce's decision, refers to the NSI standards, the ASME, the MSS. [00:26:17] Speaker 00: It's grappling with all of it. [00:26:18] Speaker 00: And Commerce addressed it in the first instance. [00:26:21] Speaker 01: Now, I would agree that in Vandewater, if we're talking about the Vandewater... There is no, show me where Congress says, [00:26:28] Speaker 01: We're looking at the industry standards and this material is not within the industry standard or that the industry standard is not clear. [00:26:35] Speaker 01: They never did that. [00:26:36] Speaker 01: Sometimes industry standards are... No, no, no. [00:26:38] Speaker 01: You're not answering my question. [00:26:40] Speaker 00: Where did they do that? [00:26:42] Speaker 00: It was inconclusive in this instance. [00:26:44] Speaker 00: They were grappling with it and they found... Where did they address the question I'm talking about? [00:26:49] Speaker 00: 3724, 3725 as it relates to CIPMA. [00:26:52] Speaker 00: They say that the industry standards are not binding, right? [00:26:56] Speaker 00: They say it's not binding and it's not conclusive either way. [00:27:00] Speaker 00: So they go on to K1 and K2, which is precisely what the commerce is supposed to do according to its regulations. [00:27:07] Speaker 00: If the scope language isn't clear on its face, if there's no singular meaning, [00:27:11] Speaker 00: and industry standards don't clarify and elucidate. [00:27:15] Speaker 01: Our cases have said you need to look at industry standards and consider that. [00:27:20] Speaker 01: I'm not understanding how the Commerce decision here is consistent with those cases. [00:27:24] Speaker 00: Well, respectfully, Your Honor, and I don't want to dwell on this point. [00:27:27] Speaker 00: I mean, Judge Dyke, if you disagree, 3724, 3725 would be the clearest explication of Commerce addressing that issue as it relates to Sigma. [00:27:35] Speaker 00: And then there's another portion, another decision that relates to SCI where Commerce addresses that as well. [00:27:40] Speaker 00: I think that's 4094 in the appendix. [00:27:42] Speaker 00: But again, part of the reason, Judge Seif, while you're finding that the Van de Water decision doesn't address it quite as much as the SGMA decision or the SCI decision is because Van de Water didn't make these industry standard arguments. [00:27:55] Speaker 00: SGMA does. [00:27:55] Speaker 00: So when SGMA does, Commerce addresses that argument head on and responds to it if they're making arguments under the standards. [00:28:02] Speaker 00: But in the Van de Water case, again, it's a different petitioner. [00:28:05] Speaker 00: It's a different party requesting a scope ruling. [00:28:07] Speaker 00: Commerce is addressing the case as Van de Water is raising. [00:28:11] Speaker 00: So you're going to find three different decisions. [00:28:13] Speaker 00: And what I would urge the court to do is review all three in the context of the KO decisions in this case. [00:28:20] Speaker 00: And I acknowledge that the procedural posture of this case is confusing because of the way that it involves three scope rulings. [00:28:26] Speaker 00: But I think because the KO decision applies to all three, that's how it has to be handled in this case, respectfully. [00:28:33] Speaker 00: It appears councils for SCI are not here to press their K-1 argument, so if the court doesn't have questions on K-0, I'll cede the rest of my time. [00:28:52] Speaker 02: We believe that Van Der Water did address the industry standards and I refer you to appendix 503 among other places where that is addressed by Van Der Water. [00:29:06] Speaker 02: So Van Der Water raised the same [00:29:09] Speaker 02: industry standard arguments we're raising, and commerce did not address them. [00:29:14] Speaker 02: So I understood Mr. O to be referring to a commerce treatment of sigma. [00:29:19] Speaker 02: That's not this case, as Your Honor has said a couple of times. [00:29:22] Speaker 02: So we have a situation where [00:29:25] Speaker 02: The issue was raised. [00:29:27] Speaker 02: Commerce neglected to address the K-0 issue. [00:29:31] Speaker 02: And now we're in front of this court. [00:29:33] Speaker 02: Now, I want to refer back to Whirlpool. [00:29:34] Speaker 02: I know I'm beating maybe a dead horse here. [00:29:37] Speaker 02: But in Whirlpool, this court stated, Commerce's inquiry on a scope ruling begins with the order scope to determine whether it contains an ambiguity and thus is susceptible to interpretation. [00:29:49] Speaker 02: And here's the key sentence. [00:29:50] Speaker 02: The question of whether the ambiguous terms of a scope [00:29:54] Speaker 02: control the inquiry or whether some ambiguity exists is a question of law that we reviewed de novo. [00:30:00] Speaker 02: So our point here is this court can do what commerce failed to do and that's what this court did in our seller Mattel. [00:30:10] Speaker 02: There's nothing stopping this court from looking at the [00:30:14] Speaker 02: at the governing standards. [00:30:17] Speaker 02: And Judge Stike, again, I insist that those standards do not raise factual questions. [00:30:23] Speaker 03: There's no way... If you lose on your legal issue that you raised about KO, then we don't get to the other argument about the standards. [00:30:35] Speaker 03: Is that correct? [00:30:39] Speaker 03: You have to win. [00:30:41] Speaker 03: You need to reopen up the issue [00:30:44] Speaker 03: of whether the K-1 ruling on the duty order was actually dispositive or not. [00:30:53] Speaker 02: Well, I mean, we still have K-1 issues we raise, and we incorporate SCI's brief to that extent, so we're not giving up. [00:31:01] Speaker 02: And Your Honor may recall the Fed [00:31:04] Speaker 02: Amit case where your honor dealt with some bricks and whether they felt in there that was a k-1 case and and the court Concluded that there was not substantial evidence to show that those bricks in question were within the duty order So we're not giving up on the k-1 at the end of the day though the The review that we give to factual issues under ko and [00:31:30] Speaker 03: That's subject to a substantial evidence. [00:31:32] Speaker 02: I don't think there are factual issues under KO. [00:31:34] Speaker 02: I think that's a contradiction in terms. [00:31:36] Speaker 02: KO is a legal question. [00:31:38] Speaker 02: This is ambiguity, yes or no. [00:31:41] Speaker 02: That's a legal question that Article III courts do all the time. [00:31:44] Speaker 02: This isn't that different from interpreting a statute. [00:31:46] Speaker 03: It may be a legal question, but it's got factual underpinnings. [00:31:49] Speaker 03: The way you answer that question is by looking at the facts. [00:31:54] Speaker 02: I don't agree that there's an actual question. [00:31:56] Speaker 03: That's what happens in the review of a duty order. [00:32:01] Speaker 03: You're looking to see whether a particular product falls within the scope of an anti-dumping duty order. [00:32:09] Speaker 03: And the law teaches us that you start with this hierarchy. [00:32:13] Speaker 03: You first look at the text and the language of the duty order. [00:32:16] Speaker 03: And under the OREDS, you also look down at K1. [00:32:21] Speaker 03: The CIT said, great, but you've got to do K2, because I think that that wasn't enough of a review. [00:32:27] Speaker 03: So they put it back up. [00:32:29] Speaker 03: I don't see anything yet that shows me that these factual determinations, where a particular pipe butts up against another, and he had the bead or the wheel, all of those are factual issues. [00:32:44] Speaker 02: that are subject to substantial evidence. [00:32:46] Speaker 02: They may sound factual in nature, but Your Honor, these branch outlets have nothing to do with butt welds. [00:32:53] Speaker 03: What do you mean they may sound factual in nature? [00:32:56] Speaker 03: When you are holding your hands, illustrating pipes, fitting each other, you're making a factual assertion. [00:33:03] Speaker 02: The factual assertion, if there is one, is this, that these branch outlets have nothing that can in any universe be considered butt weld. [00:33:13] Speaker 01: they have no but i don't know if that's going to look what you're resisting uh... it is something you may lose on we may decide that the application of industry standards for these things is a factual question and does that mean that you lose knowledge i'm sorry that i have that means we fight this out uh... on remand [00:33:39] Speaker 02: But we shouldn't have to, because those standards and the accompanying diagrams that are incorporated in them make it obvious that there's no factual question here. [00:33:52] Speaker 02: And Mr. O pointed you to the part of the sigma decision. [00:33:56] Speaker 03: If we find that this is a factual question, then that pretty much takes the wind out of your argument cells. [00:34:06] Speaker 03: Is that right? [00:34:07] Speaker 02: No, no, I don't think so. [00:34:08] Speaker 03: I think... You made us to go back and review that, those positions. [00:34:14] Speaker 03: And no, no, I mean, that's what we do. [00:34:17] Speaker 03: And it's like the case we saw, the veterans case we saw before us, you know, where there was no finality on that particular case. [00:34:28] Speaker 03: You made for us to reopen an analysis of the K.O. [00:34:32] Speaker 03: in order for you to make these arguments. [00:34:35] Speaker 03: that in fact have already been made and heard by commerce and the CIT. [00:34:40] Speaker 02: And not addressed. [00:34:41] Speaker 02: Not addressed by commerce. [00:34:45] Speaker 02: If you don't accept my invitation to roll up your sleeves and do the ambiguity analysis as a de novo review, then you should remand it to commerce and say, no, you've got to engage on the K-0. [00:34:58] Speaker 02: How come you didn't engage in the ArcelorMittal analysis and looking at industry standards? [00:35:07] Speaker 02: That case says that these dumping orders have to be interpreted in light of industry practice and parlance. [00:35:15] Speaker 02: Here, that wasn't done. [00:35:17] Speaker 02: Here, the segment of the Cigna decision that Mr. O pointed to has commerce saying, we're not bound by these standards that they reference. [00:35:28] Speaker 02: How can they say that in light of our seller Mattel? [00:35:31] Speaker 02: Our seller Mattel says, no, the orders have to be looked at in the industry standards because, as Judge Schaik, as you said in the Mid-Continent case, there are due process issues here. [00:35:41] Speaker 02: the foreign exporters have to be on notice of what it is that's covered by the order. [00:35:46] Speaker 02: If they're not on notice, and they're reading this in terms of industry standards and industry jargon, that has to be the lens through which the orders are looked at. [00:35:56] Speaker 02: In a case like this, the due process consequences are astounding. [00:36:00] Speaker 02: I think you know from the briefs that these defendants [00:36:03] Speaker 02: that the plaintiffs in this case, who were the respondents below, have faced false claims at cases and have been found liable for tens of millions of dollars based on this order that talks about butt welds when these companies don't sell anything that's got a butt weld part of it. [00:36:23] Speaker 01: OK. [00:36:24] Speaker 01: I think we're out of time. [00:36:26] Speaker 01: Thank you. [00:36:26] Speaker 01: Thank you, Your Honor. [00:36:27] Speaker 01: Thank you, Mr. Turnbull. [00:36:28] Speaker 01: Thank you, Mr. Hall. [00:36:29] Speaker 01: The case is submitted.