[00:00:01] Speaker 01:
for arguments is 23-1532 worldwide door components versus United States.

[00:00:09] Speaker 01:
And what the panel would like to do here is we asked for additional briefing on a matter, and we invited the United States

[00:00:19] Speaker 01:
Give us some briefing with a standard of review question.

[00:00:22] Speaker 01:
So that doesn't fit into the merits question.

[00:00:25] Speaker 01:
So Ms.

[00:00:25] Speaker 01:
Burke, if you would come and use your five minutes at the outset, we think that would make most sense logically on how to proceed and the other side can disagree or agree with what you say on your limited issue if they wish.

[00:00:39] Speaker 01:
Appreciate your coming.

[00:00:40] Speaker 01:
Of course.

[00:00:41] Speaker 01:
Thank you for being here.

[00:00:42] Speaker 01:
But in light of all of the recent opinions and litigation concerning standard of review and all these administrative law issues, we're being very careful here in terms of what we say about these matters.

[00:00:58] Speaker 05:
So are we.

[00:01:01] Speaker 05:
So I'll start with the first question that the court asks.

[00:01:05] Speaker 05:
To which of commerce's decisions does this court hold deference?

[00:01:09] Speaker 05:
And the answer, I think that all the parties agree, is that it's the first, it's the Commerce's original scope ruling to which the court owes deference or to which the court applies its standard of review.

[00:01:21] Speaker 08:
But what if we agree with the trial court that there's no substantial evidence for that decision?

[00:01:27] Speaker 08:
Then your remand determination, will we look to that for substantial evidence?

[00:01:33] Speaker 05:
If you agree with the trial court, then I think you would probably go through the remands one by one.

[00:01:40] Speaker 05:
One by one.

[00:01:41] Speaker 05:
Yeah.

[00:01:41] Speaker 08:
So if we agree with him on the first one that there wasn't substantial evidence, then we look at the second one and we have the same APA review that he does.

[00:01:52] Speaker 08:
And if we find substantial evidence and disagree, we still use a substantial evidence review on that second one.

[00:01:58] Speaker 05:
What the court's doing is what the appellant has asked the court to do, which is to determine whether the first remand order was incorrect.

[00:02:07] Speaker 05:
So if you determine that the first remand order was actually correct, then you go one by one, except that the agency doesn't stand behind remand number two, three, or four.

[00:02:26] Speaker 05:
So it's sort of like a different exercise than what you're doing.

[00:02:30] Speaker 01:
But the answer to the question is... Well, the challenges are all... I've lost count.

[00:02:36] Speaker 01:
Is 2, 3, and 4, are those the ones that they filed under protest?

[00:02:40] Speaker 05:
Yeah, so it's actually one.

[00:02:42] Speaker 05:
So there's the original scope ruling and then the first remand determination, second remand determination.

[00:02:46] Speaker 05:
Third remand determination.

[00:02:49] Speaker 05:
What they did under protest.

[00:02:50] Speaker 08:
Maybe I was being unclear.

[00:02:52] Speaker 08:
Maybe I used the wrong words.

[00:02:54] Speaker 08:
If we agree with him that the original scope ruling lacks substantial evidence, but disagree that the first remand determination lacks substantial evidence,

[00:03:06] Speaker 08:
That's the way we do it.

[00:03:07] Speaker 08:
So we look at the first scope ruling for substantial evidence.

[00:03:11] Speaker 08:
He found it didn't have any, and he sent it back.

[00:03:12] Speaker 08:
Let's say you agree with that.

[00:03:13] Speaker 08:
Let's say we agree with that.

[00:03:15] Speaker 08:
But then your remand ruling comes back, we still just apply the same standard of review to that one.

[00:03:21] Speaker 08:
If we agree with them on the first one, then we move on to the first remand.

[00:03:25] Speaker 08:
And if we think there's substantial evidence, then we reverse them.

[00:03:30] Speaker 05:
Right.

[00:03:30] Speaker 05:
I mean, the sort of pickle is that there is no agency

[00:03:35] Speaker 05:
there's no agency determination in the sense that the agency doesn't stand behind that second determination.

[00:03:41] Speaker 05:
But obviously what you're doing is you're looking at the record to determine whether there's substantive evidence.

[00:03:45] Speaker 08:
But the reading of the termination certainly is more fulsome in its explanation of the sub-assemblies and its reasoning and the evidence it relies on than the original scope ruling.

[00:03:55] Speaker 08:
Right.

[00:03:56] Speaker 08:
That's the

[00:03:57] Speaker 05:
Well, the Court of International Trade would disagree with that, but I'm not going to get into the merits of it.

[00:04:03] Speaker 08:
No, no, no, no.

[00:04:05] Speaker 08:
But we don't have to pay.

[00:04:06] Speaker 08:
The Court of International Trade doesn't get any deference either on that point.

[00:04:12] Speaker 08:
We just look at that ruling.

[00:04:14] Speaker 05:
I mean, I think under your standard of review, technically what you should be doing is if you disagree, if you agree that the court correctly

[00:04:27] Speaker 05:
remanded it.

[00:04:33] Speaker 08:
I'm going to ask you this hypothetically.

[00:04:35] Speaker 08:
It may sound like it's a position.

[00:04:37] Speaker 08:
It may or may not be.

[00:04:40] Speaker 08:
The first, the original scope order is not good enough.

[00:04:44] Speaker 08:
It doesn't explain its reasoning.

[00:04:46] Speaker 08:
We agree with the trial court that there's no substantial evidence that this was a sub-assembly in that order.

[00:04:52] Speaker 08:
The second, the remand determination, will you go through that all?

[00:05:01] Speaker 08:
And it's not under protest, I don't think, the first remand.

[00:05:06] Speaker 08:
It's not, no.

[00:05:07] Speaker 08:
Right.

[00:05:08] Speaker 08:
And so we disagree with the trial court, and we find that supported by substantial evidence.

[00:05:16] Speaker 08:
There's nothing special about us just doing the same review on that second one.

[00:05:21] Speaker 08:
We do the first one, we affirm and say, yes, lack of substantial evidence.

[00:05:26] Speaker 08:
And then we get to the second one, and we say, no, you're wrong.

[00:05:29] Speaker 08:
There is substantial evidence.

[00:05:30] Speaker 08:
And my real question is, do we even have to decide if the first one is substantial evidence, if we think it doesn't really matter because the second one, and not second remand information, the second decision from commerce.

[00:05:44] Speaker 04:
Yeah, no, I think you do.

[00:05:45] Speaker 04:
Because that's what you've been asked to do.

[00:05:48] Speaker ?:
Okay.

[00:05:49] Speaker 01:
So that wasn't under protest.

[00:05:50] Speaker 01:
Can I just ask you a general question?

[00:05:52] Speaker 01:
It seems like we have at least three buckets.

[00:05:54] Speaker 01:
We've got cases where the Congress gets a remand from the CIT and then does essentially what CIT wants, and there's no under-protest language.

[00:06:05] Speaker 01:
Then there's a remand where you get under-protest language.

[00:06:09] Speaker 01:
And the third bucket is where I think sometimes the government decides to come up here and appeal it.

[00:06:15] Speaker 01:
Right?

[00:06:17] Speaker 01:
Right.

[00:06:18] Speaker 01:
So is it the government's view that the remand that's not under protest is the one that requires substantial deference to what Congress did?

[00:06:30] Speaker 01:
But if they file it under protest, we shouldn't give that deference.

[00:06:36] Speaker 01:
And if they come up here and appeal it, we certainly shouldn't give deference to something they're disagreeing with that they said.

[00:06:43] Speaker 05:
Well, it raises the question of whether

[00:06:47] Speaker 05:
this court has held that commerce actually has to say that a decision is not under protest and the verage could be read as suggesting that any time commerce disagrees but does it anyway, it has to say

[00:07:06] Speaker 05:
that it's doing so under protest.

[00:07:08] Speaker 05:
I don't really think it does have to do that.

[00:07:12] Speaker 01:
But do you agree that if you say under protest that we should not apply the deaf or racial standard to commerce to what they filed under protest?

[00:07:20] Speaker 05:
I do, but I think you know whether commerce stands behind the decision or not if

[00:07:29] Speaker 05:
we are a party to the appeal, you know, if we defend it on appeal.

[00:07:33] Speaker 01:
Oh, but I'm talking about if you don't defend it.

[00:07:34] Speaker 05:
If we don't defend it on appeal, then I think you can assume, even if we don't say it's under protest, that we do not defend the decision below, nor have we received authorization to appeal it.

[00:07:46] Speaker 01:
I'm sorry, maybe I'm not clear on the answer.

[00:07:48] Speaker 01:
Okay, let's take the situation where let's take this case and say you never put under protest and you don't come up here on appeal.

[00:07:56] Speaker 01:
Are we supposed to therefore assume that the deference owed to the Commerce Department

[00:08:02] Speaker 01:
includes deference to the second and the third remand because they didn't put the under protest.

[00:08:09] Speaker 01:
This is just confusing to us on appeal.

[00:08:12] Speaker 01:
We're the ones that have to decide what the standard of review is.

[00:08:14] Speaker 01:
You're telling us not to apply a deferential standard to something under protest, right?

[00:08:22] Speaker 01:
Right.

[00:08:23] Speaker 01:
Okay.

[00:08:24] Speaker 01:
But now are you saying that even if you don't say it's under protest, we should still not have

[00:08:29] Speaker 05:
No, I didn't mean to confuse it.

[00:08:31] Speaker 05:
In commerce cases, commerce follows

[00:08:34] Speaker 05:
the holding in Verrage and it always says that it is under protest if it is in fact under protest.

[00:08:41] Speaker 01:
So in terms of the standard of review that's applied, the government is telling us if it's not under protest then we should apply whatever the deferential standard or whatever the standard is to the court's opinion.

[00:08:54] Speaker 01:
But if it's under protest then we should not.

[00:08:56] Speaker 05:
Well except it depends on what the appellant is asking you to do.

[00:08:59] Speaker 05:
So if the appellant is concerned about

[00:09:03] Speaker 05:
the first remand order, which it is in this case, then you have to go back to the beginning to determine whether that decision was supported by substantial evidence to figure out whether the remand order was correct or not.

[00:09:14] Speaker 05:
So it really depends upon the way that the appeal is framed.

[00:09:19] Speaker 08:
When we're talking about deferentials in a review, are we just talking about the APA standard that's in here, that it's arbitrary compretious contrary to law or not supported by substantial evidence?

[00:09:29] Speaker 08:
Well, this court in scope perceiving... I understand we have this language about the special deference.

[00:09:34] Speaker 08:
I have no idea what that language means.

[00:09:37] Speaker 08:
It's not our deference, that's for sure, right?

[00:09:39] Speaker 05:
It is not our deference, although you could consider it as sort of our adjacent, but it is not our deference.

[00:09:44] Speaker 05:
We certainly haven't asked for our deference.

[00:09:47] Speaker 05:
We're not a party to the appeal.

[00:09:49] Speaker 08:
We haven't asked for anything.

[00:10:00] Speaker 08:
those decisions by commerce lack substantial evidence, then that would be what we would look at, is we would be looking at whether commerce's decisions lack substantial evidence, whether commerce actually wanted to issue them or not, if they hadn't focused on the earlier ones.

[00:10:16] Speaker 05:
Yeah, I think that the significant deference or substantial deference language in all of the scope cases, I sort of see it as similar to when this court

[00:10:25] Speaker 05:
acknowledges that the Court of International Trade has a specific expertise and they acknowledge it.

[00:10:30] Speaker 05:
A scope proceeding is unusual in the sense that there is language that is arrived at at the very beginning that then controls decades, sometimes decades of proceedings.

[00:10:42] Speaker 05:
And so it's just an acknowledgement that commerce wrote this language.

[00:10:46] Speaker 05:
We acknowledge that commerce is the expert.

[00:10:49] Speaker 05:
At the end of the day,

[00:10:50] Speaker 05:
obviously you're bound by the standard of review and the substantial evidence standard of review is really quite high.

[00:10:56] Speaker 01:
That was my next real question about this case which is dividing a scope and I think the parties may have been a little more

[00:11:05] Speaker 01:
in a definitive or detailed than you were in this, because I read the government is just saying, under scope review, substantial evidence and lawfulness.

[00:11:17] Speaker 01:
But the other parties, I think to a certain extent, citing Royal Polo and some of our other cases, tease out that it's not entirely deferential.

[00:11:25] Speaker 01:
I mean, our cases seem to say, yes, deference is owed to the Commerce Department on scope rulings, except that.

[00:11:31] Speaker 01:
If we're talking about interpretation questions, then I understand our cases to leave that to be kind of a genova.

[00:11:40] Speaker 05:
No, and I agree with that.

[00:11:42] Speaker 05:
I think we were answering the sort of narrow question of what appears to be an issue in this appeal.

[00:11:47] Speaker 05:
But yes, when you're reviewing a scope determination, the very first thing you do is look at the scope language.

[00:11:54] Speaker 05:
If the scope language is dispositive, that answers the question.

[00:11:57] Speaker 05:
that is considered to know that question is considered to know well and I think that.

[00:12:01] Speaker 08:
So the scope language means is it's more of a legal question.

[00:12:06] Speaker 08:
Yes.

[00:12:06] Speaker 08:
Like we look at this and whether the scope language includes subassemblies or not is a legal question.

[00:12:13] Speaker 05:
Well that's what this court has said that it's a legal question.

[00:12:15] Speaker 08:
You know in this case it's pretty plain whether something is a subassembly or not is a fact question.

[00:12:22] Speaker 08:
And so the first is to know about the second is substantial evidence.

[00:12:25] Speaker 08:
Is that your view.

[00:12:27] Speaker 05:
Right, but I would suggest that these cases are often quite complicated, so we're not... Well, can I ask you about this case?

[00:12:35] Speaker 01:
Because I'm having a real trouble just differentiating between questions of fact and questions of law in terms of review.

[00:12:42] Speaker 01:
So, yes, we construe this is what you are sub-assemblies and this is finished products in this scope.

[00:12:50] Speaker 01:
Isn't it also an interpretive question as to whether these door thresholds

[00:12:56] Speaker 01:
constitute sub-assemblies because we're defining what the sub-assemblies are or whether they're finished product because it's a definitional thing.

[00:13:06] Speaker 01:
Does this come under paragraph A or B and is that a question of law and interpreting language of the spoke or is that a question of fact?

[00:13:17] Speaker 05:
So I hope this isn't too frustrating, but I'm not authorized to answer that question.

[00:13:21] Speaker 01:
What I can say, though, is- Well, the problem for us is we are.

[00:13:25] Speaker 01:
And so I guess I'm disappointed, because we may need to answer that question.

[00:13:33] Speaker 01:
And if you can't be helpful, you may not like the answer.

[00:13:36] Speaker 05:
Well, and I think Congress recognizes that when it makes its recommendation whether to appeal.

[00:13:41] Speaker 05:
And certainly the Department of Justice recognizes that when we seek authorization.

[00:13:46] Speaker 05:
What I will say is that the exercise that Commerce performs is done under the regulation, and the regulation has since changed, but let's talk about the old regulation.

[00:14:00] Speaker 05:
It's pretty clear under this court's case law and the regulation that Commerce looks to the original, the scope language first, and then if

[00:14:12] Speaker 05:
it is ambiguous, then commerce applies the K1 and K2 factors, which are sources, right?

[00:14:20] Speaker 05:
And so once commerce arrives at a conclusion, that conclusion is always about those sources.

[00:14:28] Speaker 05:
So it's, in my opinion, usually a substantial evidence question.

[00:14:33] Speaker 05:
But I say that in a vacuum, because I really am not speaking about the facts of this case.

[00:14:39] Speaker 01:
So you're not prepared to tell us, to take a position on whether or not, whether or not door thresholds come within the submissively or the finished products is a question of law or fact?

[00:14:52] Speaker 05:
I'm not, but I will say that what we said in our brief is that it seems to us that this is a substantial evidence question.

[00:15:15] Speaker 01:
Did I already call up this case?

[00:15:17] Speaker 01:
Did I call the case?

[00:15:19] Speaker 01:
I hope I did.

[00:15:20] Speaker 02:
I'm sorry.

[00:15:21] Speaker 01:
Did I call the case?

[00:15:22] Speaker 01:
23-1532 Worldwide Door versus United States.

[00:15:27] Speaker 01:
I believe you did.

[00:15:28] Speaker 01:
Thank you.

[00:15:28] Speaker 01:
All right.

[00:15:33] Speaker 01:
Miss Toledo?

[00:15:35] Speaker 01:
Toledano.

[00:15:36] Speaker 01:
OK.

[00:15:37] Speaker 01:
You've got more work to do than Miss Burke, but could you start with the question we left her with?

[00:15:42] Speaker 01:
What is your position on whether the question here, or whether the door threshold comes within, this is just on a standard review question, where it ends?

[00:15:55] Speaker 01:
And tell us where and why.

[00:15:57] Speaker 03:
The question that you posed.

[00:15:58] Speaker 03:
as to whether the product at issue here is a sub-assembly or a part versus finished merchandise is a question of fact.

[00:16:05] Speaker 03:
And I'll quote, because I think the parties are remarkably aligned on the standards that govern this case, and so I'll actually quote from the appellee's supplemental brief.

[00:16:13] Speaker 03:
quoting from China Custom Manufacturing, and commerce makes a factual determination, this is on page two, that specific language in the scope describes or does not describe a particular product, and the product is included or excluded from the scope as a result.

[00:16:29] Speaker 03:
Commerce is entitled to substantial deference.

[00:16:33] Speaker 01:
I'm sorry, this is their supplemental brief and it's at page two.

[00:16:40] Speaker 03:
Citing China Custom Manufacturing.

[00:16:42] Speaker 01:
But then they go on to say, to cite, look at the next paragraph, because it says, it cites meridian products, the question of whether the unambiguous terms of the scope control the inquiry, or whether some ambiguity exists is a question of law that we need to know about, and then they cite de Firco,

[00:17:05] Speaker 01:
which says the court gives substantial deference to Congress's interpretation of its own orders, but a scope determination is not in accordance with the law if it changes the scope of an order or interprets an order in a manner contrary to the order's terms.

[00:17:23] Speaker 01:
So why is this not that, where it's interpreting subassembly incorrectly

[00:17:31] Speaker 01:
to include these door thresholds.

[00:17:36] Speaker 03:
I think there are two parts to what Commerce did here and two parts to the Court's analysis.

[00:17:41] Speaker 03:
There is a question in the abstract about how we interpret scope language.

[00:17:45] Speaker 03:
That, I think we all agree, is a legal question that the Court reviews de novo.

[00:17:49] Speaker 03:
The question there as it relates to the sub-assembly framework is, what does sub-assembly mean?

[00:17:55] Speaker 03:
which the court has recognized on a number of occasions, has been highly litigated and well established at this point.

[00:18:01] Speaker 03:
That's no longer an open question.

[00:18:02] Speaker 03:
There's an established framework.

[00:18:04] Speaker 03:
But the question of what that word means in the context of the scope when it first came up was indeed a legal question.

[00:18:10] Speaker 03:
As to whether this product satisfies the definition that commerce has interpreted, the application of record facts to that legal standard, that's a substantial evidence question.

[00:18:22] Speaker 01:
Any patent lawyer?

[00:18:22] Speaker 01:
Are you a patent lawyer?

[00:18:23] Speaker 01:
I'm not at all.

[00:18:24] Speaker 01:
Oh, OK.

[00:18:24] Speaker 01:
Because I was going to ask you if your analogy that you're drawing out is to claim construction vis-a-vis infringement.

[00:18:31] Speaker 01:
Because it sounds a little like that, which is claim construction, you're consuming the claims and what they mean, question of law.

[00:18:37] Speaker 01:
But whether or not the actual device at issue comes within the scope of those definitions is a question of fact.

[00:18:45] Speaker 01:
Now, that's patent law.

[00:18:46] Speaker 01:
That's not administrative law.

[00:18:47] Speaker 03:
I liken it in my world to contract interpretation.

[00:18:50] Speaker 03:
I hesitate to say statutory interpretation in light of Loper-Bright, which is obviously very separate apart from this case.

[00:18:56] Speaker 03:
But I think this is a familiar concept in the law, that when we're interpreting a legal written instrument and we're trying to determine what the words of that instrument mean, that's a legal question.

[00:19:06] Speaker 08:
And so for sub-assemblies, that's been done?

[00:19:11] Speaker 08:
That has been very done.

[00:19:13] Speaker 08:
by the Commerce Department, by the Trade Court, and by us.

[00:19:15] Speaker 08:
And that's intermediate assemblies that are intended for installation in the final product.

[00:19:20] Speaker 03:
That's right.

[00:19:21] Speaker 03:
Something less than the fully final finished good.

[00:19:24] Speaker 08:
When we were doing that legal conclusion of what sub-assemblies meant, that's a de novo review.

[00:19:33] Speaker 08:
We have precedent binding us on that.

[00:19:35] Speaker 08:
So now all we're looking at is,

[00:19:37] Speaker 08:
whether the products that issue here are factually within that legal definition.

[00:19:42] Speaker 03:
That's exactly right.

[00:19:43] Speaker 08:
And so we're going to look at Commerce's initial, I'm going to mess up.

[00:19:49] Speaker 08:
I'm going to try not to call them first and second.

[00:19:52] Speaker 08:
Commerce's initial ruling and its first remand determination.

[00:19:55] Speaker 08:
That's right.

[00:19:55] Speaker 08:
And all of them, honestly, but the first two are the ones you want us to concentrate on.

[00:19:59] Speaker 03:
Certainly.

[00:20:00] Speaker 03:
And I do agree with you that that determination is laid out in the original determination

[00:20:06] Speaker 03:
We can see it, of course, that it's much more fleshed out in the first remand determination for obvious reasons.

[00:20:12] Speaker 03:
Commerce relied initially on the fact that door thresholds are explicitly in scope in addition to the fact that there is substantial record evidence that they are incorporated into door assemblies.

[00:20:24] Speaker 08:
Let's say we, because there's three possible things at issue here.

[00:20:28] Speaker 08:
There's the intended for insulation and final product.

[00:20:35] Speaker 08:
the final, and maybe I'm messing them up, there's the intended use and then there's the sub-assembly.

[00:20:41] Speaker 08:
And let's just assume we agree with the trade court that your commerce's determination on the first two was incorrect, that they couldn't have fallen in those categories.

[00:20:51] Speaker 08:
And that the only possible one is sub-assembly.

[00:20:55] Speaker 08:
And so what in their initial scope ruling is substantial evidence that this was a sub-assembly?

[00:21:01] Speaker 08:
Because it certainly was mentioned, but it doesn't seem like it was the focus of the first scope ruling.

[00:21:07] Speaker 03:
It was not the focus.

[00:21:08] Speaker 03:
But it is encompassed.

[00:21:09] Speaker 03:
And first, Commerce, of course, has to decide which aspects of the scope ruling request that it's going to recite.

[00:21:15] Speaker 03:
And so part of that is laid out in just the aspects of the scope ruling request that Commerce copied into that first ruling.

[00:21:23] Speaker 03:
which include the fact that door thresholds are specifically designed to fit door units, meaning they can only be used in tandem with the door and only serve a purpose with that door.

[00:21:34] Speaker 03:
There is the laboratory report that was submitted with WorldWide.

[00:21:37] Speaker 08:
Can I just be a little nitpicky with you and can you point me specifically in that first, in that scope ruling where they make this conclusion and what evidence there's pointing to?

[00:21:58] Speaker 08:
It starts at 969, I think, of the appendix, if I'm looking at the right one.

[00:22:03] Speaker 08:
Is this the first or the second?

[00:22:04] Speaker 08:
This is the December 2018, so this is the initial... I think, that's right, the December 2018 is the initial one.

[00:22:12] Speaker 03:
That's right.

[00:22:13] Speaker 03:
So in the initial discussion, the actual discussion, the parts in the sub-assemblies framework, I think is at appendix numbers 1001 to 1003.

[00:22:21] Speaker 03:
It is, as you said, an abbreviated discussion, but the discussion does rely on the fact that

[00:22:27] Speaker 03:
Door thresholds, again, are... We find that the door thresholds, this is a page 34 of that opinion, which constitute aluminum extrusion components attached to non-aluminum extrusion components, may also be described as sub-assemblies pursuant to the scope of the orders.

[00:22:49] Speaker 03:
Commerce notes that they are assembled after importation with additional components to create the final finished product

[00:22:58] Speaker 08:
And this is, of course, in tandem with the discussion at 33 that we find the... Is there anything... This paragraph you're reading to me from page 34 or appendix 1002, is there anything else besides that one paragraph?

[00:23:13] Speaker 03:
So when we look at the K-1 sources, for example... I'm sorry, I'm having a hard time hearing you.

[00:23:18] Speaker 03:
I'm sorry.

[00:23:19] Speaker 03:
At page 34 of this decision, Commerce turns then to the K-1 sources.

[00:23:23] Speaker 03:
It looks at the underlying petition and the ITC report.

[00:23:27] Speaker 03:
And looking at the petition, Commerce cites language saying that aluminum extrusions serve in a wide variety of applications and are incorporated into products specifically like windows and door frames, sills, curtain walls, and thresholds.

[00:23:42] Speaker 01:
Okay, so you said page 34, it confused me.

[00:23:44] Speaker 01:
You're talking about Appendix 1002.

[00:23:46] Speaker 01:
I'm on the Appendix, okay.

[00:23:48] Speaker 08:
Here's my problem is that you're now pointing us to the paragraph at the bottom of that page, right?

[00:23:54] Speaker 08:
Is that that paragraph follows after the discussion of whether they can be identified by end use.

[00:24:04] Speaker 08:
And we're gonna, let's just assume for all of my questions that I disagree with commerce's position on end use and that these can't be end use.

[00:24:15] Speaker 08:
include stuff, things that aren't aluminum.

[00:24:17] Speaker 08:
But I agree with the trade court on that.

[00:24:19] Speaker 08:
So how do we know this evidence in this last paragraph is about sub-assemblies versus end-use?

[00:24:26] Speaker 03:
That's very good.

[00:24:27] Speaker 03:
In which case, I think the interpretive framework that we all agree on and that you discussed with the government applies.

[00:24:32] Speaker 03:
If you were inclined to say that this first decision is not robust enough, there is a very robust decision.

[00:24:38] Speaker 03:
We march forward in time.

[00:24:40] Speaker 01:
We agree on that point.

[00:24:40] Speaker 01:
Give us the appendix site for that.

[00:24:43] Speaker 03:
OK.

[00:24:43] Speaker 03:
So if we move forward to

[00:24:45] Speaker 03:
This is the second decision overall, but the first remand re-determination.

[00:24:54] Speaker 03:
So we start at appendix 1453, which is Congress's discussion of its new sub-assembly framework, which follows the Shannon decision.

[00:25:02] Speaker 03:
So this puts us back in the legal holding framework that we were discussing.

[00:25:06] Speaker 03:
This is a discussion of what sub-assembly means in the context of the scope, as not just supported but dictated by this court's precedents.

[00:25:14] Speaker 03:
After which, we get into a much more robust discussion of the facts of this case and why these products or sub-assemblies are parts.

[00:25:21] Speaker 03:
Starting with the scope request, Commerce notes, this is at 1460 of the appendix, Columbia's thresholds are designed to fit standard door sizes.

[00:25:32] Speaker 03:
That appendix 1459, and I think this is really a key point for this appeal, Commerce also notes a laboratory report submitted by Worldwide detailing how thresholds are installed.

[00:25:43] Speaker 03:
The contents of the report are BPI, but suffice it to say, as Commerce did, that the report shows, on its face and throughout, that these thresholds do not function on their own, but rather are incorporated into a larger downstream product.

[00:25:57] Speaker 08:
That report begins- And what larger downstream product does Commerce find them incorporated into?

[00:26:04] Speaker 03:
It's an interesting- It's a door.

[00:26:07] Speaker 03:
Sorry, it's not an interesting- It's not ambiguous on the face of that order.

[00:26:10] Speaker 03:
It's a door.

[00:26:11] Speaker 03:
These are door- Can I get parts of a door?

[00:26:13] Speaker 01:
I don't want to shift gears, but this is really a question I don't want to... I think the CIT judge made this argument saying that this comes under finished merchandise, because he looked at the items outlined in the finished merchandise exceptions, and that's finished doors with glass, doors with glass or vinyl, picture frames with glass pane, and backing material and solar panels.

[00:26:42] Speaker 01:
None of those things operate independently either.

[00:26:45] Speaker 01:
I mean, you don't have a solar panel as, if a solar panel can be a finished product.

[00:26:52] Speaker 01:
And what's the difference between a door threshold in terms of finished product status, because it's something you can sell, purchase and sell independently.

[00:27:03] Speaker 01:
It doesn't operate unless it's put somewhere else.

[00:27:08] Speaker 01:
That's true of a solar panel too, I assume.

[00:27:11] Speaker 01:
I understand the question.

[00:27:15] Speaker 01:
Because that's the way I'm understanding what the CIT said and what the finished product says.

[00:27:20] Speaker 01:
So what's your answer?

[00:27:21] Speaker 03:
I think there are two parts to that question, and I'm glad that you brought up solar panels as the example.

[00:27:26] Speaker 03:
This is the exact argument that this court passed on last year in China custom manufacturing.

[00:27:31] Speaker 03:
The issue in that case was, are solar panel mounts, which are undisputedly a piece that a solar panel is then mounted onto, are these finished merchandise, or are they a part?

[00:27:43] Speaker 03:
The appellant in that case made exactly this argument.

[00:27:45] Speaker 03:
It said, listen.

[00:27:46] Speaker 03:
Solar panels are expressly excluded as finished merchandise.

[00:27:51] Speaker 03:
But everyone understands that the whole purpose of this mount is to take a solar panel and to put it on top of the mount, to attach it to this system, in which case this mount functions exactly the same as this panel.

[00:28:02] Speaker 03:
We, too, are finished.

[00:28:04] Speaker 03:
Judge Chen authored that opinion.

[00:28:05] Speaker 03:
He said, look, whatever, almost verbatim, a solar panel mount is undisputedly not a solar panel.

[00:28:14] Speaker 03:
So whatever the scope may say about solar panels and whether they are expressly finished merchandise doesn't apply.

[00:28:21] Speaker 01:
But what's the difference between a solar panel and a door being finished products, picture frames with the glass pane,

[00:28:30] Speaker 01:
And a door threshold that we have here.

[00:28:36] Speaker 01:
It's a finished product.

[00:28:37] Speaker 01:
You can put it in a box and sell it on the shelf.

[00:28:40] Speaker 01:
And it doesn't have any independent value, but neither does a solar panel, because having a solar panel sitting on the living room table doesn't mean anything either.

[00:28:49] Speaker 01:
It's intended to be attached and something else in order to work.

[00:28:53] Speaker 01:
So what is the difference

[00:28:55] Speaker 03:
Between door threshold and a solar panel and a door frame or a picture frame So the difference I would say is that a solar panel needs to be installed to work But it doesn't mean that it needs other components to function.

[00:29:10] Speaker 01:
You need to you need to put it somewhere Okay, what's the threshold doesn't it just need to be installed to do work its purpose and

[00:29:19] Speaker 03:
It needs a door to serve its purpose.

[00:29:21] Speaker 01:
The solar panel needs something.

[00:29:24] Speaker 01:
It needs to be attached to something.

[00:29:27] Speaker 03:
It has to be installed somewhere.

[00:29:31] Speaker 03:
Theoretically, you could put the solar panel mount just on the roof.

[00:29:34] Speaker 03:
I'm not a solar panel expert.

[00:29:36] Speaker 03:
In the same way that you can have doors and you have door frames that serve a purpose without a threshold.

[00:29:42] Speaker 03:
So there's absolutely no purpose without it.

[00:29:44] Speaker 03:
You would never buy a threshold alone, which speaks to yourself.

[00:29:46] Speaker 01:
Well, you know, I didn't buy a door alone to just have it sitting in my living room and not serving its purpose, just like I wouldn't buy a door threshold unless I was going to attach it to something.

[00:29:55] Speaker 01:
I only buy a door so I can attach it.

[00:29:58] Speaker 01:
to the frame or whatever for use, right?

[00:30:01] Speaker 03:
At which point, first of all, we're back at China custom manufacturing, which is we can't second, we're not respectfully in a position that we can second guess whether a door is finished because the scope says that it is.

[00:30:12] Speaker 08:
The problem with this is the scope has a list of things that are finished products and a list of things that are sub-assemblies that frankly don't seem to have much rhyme or reason because I think a door handle

[00:30:28] Speaker 08:
is not a final product, but all you need to make a door handle work is to put it in the hole in the door.

[00:30:35] Speaker 08:
But the scope itself says that that's either, I don't know what it is, it's either a part or it's a sub-assembly.

[00:30:43] Speaker 08:
If it's all aluminum, it's just an extrusion, but if it's aluminum with stuff on it that's not aluminum, I assume it's a sub-assembly.

[00:30:50] Speaker 08:
But it clearly calls it out as not a final product.

[00:30:54] Speaker 08:
So what are we to do?

[00:30:56] Speaker 08:
Is it really meant for us to try to analogize between these two?

[00:31:01] Speaker 08:
Or is it commerce's good job to make a factual determination of which bucket it falls into?

[00:31:08] Speaker 08:
That's right.

[00:31:09] Speaker 03:
And that's exactly where it brings us back.

[00:31:10] Speaker 03:
I don't need to be glib about saying that certain products are in and out.

[00:31:13] Speaker 03:
I would say that where the scope doesn't specifically speak to a product, although of course here we maintain that it does and that they're expressly and is an end-use product.

[00:31:21] Speaker 03:
But where scope doesn't specifically speak to a product, at least with regard to the sub-assembly provision and finished merchandise, we're back in substantial evidence territory, in which case we do defer to commerce's determination here.

[00:31:32] Speaker 03:
And I'll concede that line drawing exercises are never easy.

[00:31:35] Speaker 03:
But I don't think that it's a stretch.

[00:31:37] Speaker 03:
And it certainly does not contradict the plain terms of the order or change them, which is the standard that the court would apply to determine whether this is lawful, to say that a door threshold, which is expressly in scope,

[00:31:50] Speaker 03:
is, in fact, in scope and a part for a door.

[00:31:55] Speaker 01:
Thank you.

[00:31:56] Speaker 03:
Thank you.

[00:32:05] Speaker 07:
Good morning, Your Honors.

[00:32:07] Speaker 07:
My name is John Foote, and I'm an attorney with Kelly Drive representing World Wide Door.

[00:32:12] Speaker 07:
I just wanted to take a minute to introduce my client who's here with us in the courtroom today.

[00:32:16] Speaker 07:
This is Jerry Monstoka.

[00:32:17] Speaker 07:
He is the CEO of and president of World Wide Door.

[00:32:20] Speaker 07:
the executive vice president of World Wide Door.

[00:32:24] Speaker 07:
We've been working on this case for a long time together, so long we didn't recognize each other in the lobby.

[00:32:29] Speaker 07:
It's been over eight years since we started working on this and they came to me with two products and they had a door threshold that was just an aluminum extrusion.

[00:32:36] Speaker 01:
For a commercial application you'd walk on it going into a grocery store and they have these Just speaking of that just a general question that is really shows my ignorance in this area of the law which is Since a portion of the store threshold is aluminum the rest isn't

[00:32:53] Speaker 01:
Assuming you are not to prevail in this case, is that just a question of portioning the amount of money or whatever in terms of the duties that come in?

[00:33:03] Speaker 01:
They are just assessed on the aluminum extraction portion of it, is that correct?

[00:33:07] Speaker 07:
That is correct.

[00:33:09] Speaker 07:
There is, however, an issue with a secondary piece of litigation, a secondary finding.

[00:33:14] Speaker 07:
by U.S.

[00:33:14] Speaker 07:
Customs related to evasion of anti-dumping duties, which hinges in significant part on whether or not... That's not part of our case.

[00:33:20] Speaker 07:
Which is not, but that's just so you understand.

[00:33:23] Speaker 07:
I appreciate that.

[00:33:24] Speaker 01:
Can you start with a few minutes on the standard of review to the extent that you will disagree with anything your friend said?

[00:33:30] Speaker 01:
Because it seemed your arguments were kind of aligned.

[00:33:33] Speaker 07:
Yeah, I think our arguments were substantially aligned, but what I do want to clarify is that the standard of review, the statutory standard of review, supported by substantial evidence and otherwise in accordance with law,

[00:33:44] Speaker 07:
Substantial evidence speaks to a determination by the agency that is supported by evidence within the record.

[00:33:50] Speaker 07:
And that is a determination that is of deference.

[00:33:52] Speaker 07:
The question of whether a scope determination is otherwise in accordance with law is a legal determination that is not reviewed with deference.

[00:33:59] Speaker 07:
So what does it mean for a scope determination to be otherwise in accordance with law?

[00:34:02] Speaker 07:
It's whether or not it gives.

[00:34:03] Speaker 01:
Well, talk just about this case.

[00:34:05] Speaker 01:
Do you agree with them that in this case, the issue of whether these door thresholds

[00:34:11] Speaker 01:
come within sub-assembly or finished product is a factual question for substantial evidence.

[00:34:18] Speaker 07:
That is a factual question for substantial evidence.

[00:34:20] Speaker 07:
That's right.

[00:34:21] Speaker 07:
But the problem that we had in this case... Well, can I just stop you then?

[00:34:25] Speaker 08:
Sure.

[00:34:26] Speaker 08:
Because I'm just going to skip right past Commer.

[00:34:29] Speaker 08:
This is initial

[00:34:32] Speaker 08:
because I don't think it's good enough.

[00:34:34] Speaker 08:
Whether that is the ultimate conclusion at any day is different.

[00:34:38] Speaker 08:
So once we get to its first remand determination, it has a fairly extensive discussion about why it thinks these are sub-assemblies.

[00:34:47] Speaker 08:
It describes them as intermediate products, which is our legal standard, which I don't think there's any real experience with or can be real.

[00:34:54] Speaker 08:
this agreement with, and it cites to evidence.

[00:34:57] Speaker 08:
Why isn't that the end of the case that they've cited to evidence?

[00:35:01] Speaker 08:
I know that the trial court judge was very concerned about, well, why aren't these finished products like windows?

[00:35:13] Speaker 08:
But we've held that something is a sub-assembly, it can't be a finished product, right?

[00:35:19] Speaker 08:
And so if commerce makes a factual determination, which you just said this is, and it's supported by substantial evidence, doesn't that end the inquiry?

[00:35:29] Speaker 07:
The answer is no, because the legal error was refusing to go on and read the rest of the scope and consider whether it applied.

[00:35:38] Speaker 08:
I don't understand that.

[00:35:41] Speaker 08:
Let me just re-state it, because I think I said this, but we have said in at least two cases that if something is a sub-assembly, it is not a finished product, right?

[00:35:51] Speaker 08:
So if commerce makes a determination that something is a sub-assembly, whether it says it's not a finished project or not, it is implicitly saying that it's not a finished product.

[00:36:03] Speaker 08:
Because it can't be both, right?

[00:36:04] Speaker 07:
It can either be one or the other.

[00:36:06] Speaker 07:
The problem is if commerce defines the product in question as being a sub-assembly in such a way as would defeat the exemplars of the finished merchandise exclusion, and that's what they've done here.

[00:36:18] Speaker 07:
They've defined subassembly to mean anything which then becomes a part of a larger whole.

[00:36:23] Speaker 08:
And that would defeat... Well, in this case, they've made very specific findings.

[00:36:27] Speaker 08:
I think if they said it as broadly as you did, then yes, they might have a problem.

[00:36:32] Speaker 08:
But they talk about it being installed as part of a larger... I think at some point they may use the word door unit or the like.

[00:36:39] Speaker 08:
I have no quarrel with you that the exemplars are very confusing.

[00:36:43] Speaker 08:
I don't understand the difference between a door handle and a window.

[00:36:48] Speaker 08:
or solar panels and pieces of, I think, wall curtains or something came up, it seems to be a list of exemplars that you could put in either bucket.

[00:37:00] Speaker 08:
But once we're past the specific exemplars, as your friend said, then we have to look at what commerce makes its actual determination on, don't we?

[00:37:09] Speaker 07:
What I would say is that when commerce has been asked to answer the question, is a product finished merchandise, in every instance, they have looked at the finished merchandise exclusion, they have looked at the product, and they have evaluated that question.

[00:37:23] Speaker 07:
on the merits.

[00:37:24] Speaker 07:
And this is what I told my client.

[00:37:26] Speaker 08:
I understand that, but I don't understand why that's necessarily legal error if they chose to go the other way and say, we're going to look at whether it's a sub-assembly or not.

[00:37:37] Speaker 07:
It's legal error because of the Fair Code.

[00:37:39] Speaker 07:
They cannot interpret the scope in a manner contrary to its terms, and that's what this assessment did.

[00:37:45] Speaker 00:
How are they interpreting it contrary to its terms if they're making a determination that it's a sub-assembly and a sub-assembly can't be a finished product?

[00:37:57] Speaker 07:
It is respectfully an interpretation of the scope contrary to its terms if they don't go on and look at the finished merchandise exclusion and make an assessment as to whether or not it describes the product.

[00:38:08] Speaker 00:
Why is that necessary if they've gone through an exhaustive analysis to conclude that it's a sub-assembly?

[00:38:16] Speaker 08:
Let me ask you.

[00:38:17] Speaker 08:
Sorry, I don't mean to jump in anyway.

[00:38:19] Speaker 08:
If they'd added a sentence that said, because we find this is a sub-assembly, it cannot be finished in product or whatever that language is, and cited our cases that said they're mutually exclusive.

[00:38:31] Speaker 08:
Was that enough?

[00:38:33] Speaker 07:
At the time that they made this decision, the only case that said that was Shenyang-Yuanda.

[00:38:38] Speaker 07:
And in Shenyang Yolanda, the critical fact, the fact that this quote... We have a new case that makes it very clear, and we're bound by that.

[00:38:46] Speaker 07:
We absolutely are.

[00:38:47] Speaker 07:
But it didn't change the scope, right?

[00:38:49] Speaker 07:
I think we can agree that China Custom didn't change the scope, right?

[00:38:52] Speaker 07:
It didn't actually change what the scope says.

[00:38:55] Speaker 07:
And in Shenyang Yolanda, you had a product that everyone agreed no one ever purchases on a stand-alone basis.

[00:39:02] Speaker 07:
And in this instance, it is undisputed that you can purchase this product on a standalone basis.

[00:39:08] Speaker 01:
I guess I'm a little unclear.

[00:39:11] Speaker 01:
If I get a brief and it gives me three pages why this is a summed assembly, full stop, and it is the most persuasive thing I've ever read.

[00:39:20] Speaker 01:
In fact, this thing cites it.

[00:39:22] Speaker 01:
Door threshold is a summed assembly.

[00:39:24] Speaker 01:
Do I feel like I have to read another five pages in the brief about other provisions of the scope ruling to say it's not in those?

[00:39:32] Speaker 01:
I mean, can't you stop at some point?

[00:39:35] Speaker 07:
The answer is no, you must read the entirety of the scope.

[00:39:39] Speaker 07:
The scope is legally operative text.

[00:39:41] Speaker 07:
The scope is the operative text.

[00:39:43] Speaker 07:
This is what defines the operative text.

[00:39:46] Speaker 01:
If we have to decide whether something is A or B, and we find conclusively that it's in A, do we also have to say why it's not in B?

[00:39:55] Speaker 01:
You have to at least look at whether B might describe it.

[00:39:58] Speaker 08:
Why?

[00:39:58] Speaker 08:
When they're mutually exclusive, why?

[00:40:01] Speaker 08:
As a matter of logic, if the...

[00:40:07] Speaker 08:
A and B simultaneously.

[00:40:09] Speaker 08:
But that's not the case here, right?

[00:40:10] Speaker 08:
You agree that A and B are mutually exclusive.

[00:40:13] Speaker 08:
So as a matter of logic, if it's in A, it is not in B. If I may, if you consider a solar panel

[00:40:22] Speaker 07:
under the sub-assembly analysis that the Commerce Department advanced in this case.

[00:40:27] Speaker 07:
Can we not talk about something that's an exemplar, because as we've said, those are, I think, inconsistent.

[00:40:36] Speaker 08:
Can you just answer the basic logic question?

[00:40:38] Speaker 08:
If A and B are mutually exclusive, then if it's A, it can't be B, right?

[00:40:42] Speaker 07:
That is correct.

[00:40:44] Speaker 07:
If A has been interpreted in such a manner as to write out of the scope language that is in the legally operative text, and that's what commerce did.

[00:40:52] Speaker 07:
What language did it write out?

[00:40:54] Speaker 07:
The exemplars.

[00:40:56] Speaker 01:
The exemplars of the finished product.

[00:40:58] Speaker 07:
The exemplars of the finished merchandise.

[00:41:00] Speaker 07:
If you are a solar panel, you must be assembled into a larger whole.

[00:41:04] Speaker 07:
It is of no value without an inverter, without a stand.

[00:41:09] Speaker 08:
Why is a threshold more like a solar panel than a door handle?

[00:41:14] Speaker 07:
And I'll answer that by saying the same reason that it is more like a solar panel than like the solar mount in China custom or like the curtain wall unit.

[00:41:24] Speaker 07:
The answer is that this is an article of finished merchandise.

[00:41:28] Speaker 07:
This is a final article of commerce that is bought and sold as is.

[00:41:32] Speaker 07:
Our opponents went to lower...

[00:41:38] Speaker 07:
I don't know that you could buy the exact version of the door handle that was at issue in this case.

[00:41:42] Speaker 07:
I don't know whether you could.

[00:41:44] Speaker 07:
It doesn't matter.

[00:41:45] Speaker 07:
Also, in that instance, the door handles were pure aluminum extrusions.

[00:41:49] Speaker 07:
There were no additional mono aluminum extrusion components, which is one of the factors for the finished merchandise exclusion.

[00:41:55] Speaker 01:
I just want to understand the argument.

[00:42:01] Speaker 01:
As a matter of law, we could not decide this case just based on the fact that we agree with Commerce.

[00:42:09] Speaker 01:
We think there's substantial evidence to support their conclusion, their analysis, that these come within the sub-assembly.

[00:42:17] Speaker 01:
As a matter of law,

[00:42:19] Speaker 01:
that we couldn't do that without reaching the second part of the scope ruling?

[00:42:24] Speaker 07:
Without any consideration, I believe that interpreting the scope without considering whether or not an exclusion applies is legal error, pure and simple.

[00:42:34] Speaker 07:
The only reason the exclusion exists is to remove something from the scope that would otherwise be brought within the scope.

[00:42:40] Speaker 07:
That's the only reason you write an exclusion as a part of it.

[00:42:44] Speaker 01:
So in your view in terms of what constitutes legal error in this context, even if commerce didn't do it, we can do it on our own?

[00:42:53] Speaker 07:
I believe that the determination of whether or not this merchandise is covered by particular language of the scope, inclusionary, exclusionary, that is a job for the agency.

[00:43:04] Speaker 01:
We're not talking about a conclusion.

[00:43:06] Speaker 01:
We know their conclusion was that it's not a finished product.

[00:43:09] Speaker 01:
You're talking about the absence of it now.

[00:43:11] Speaker 07:
The ultimate conclusion was that it was a finished product.

[00:43:16] Speaker 07:
We're forgetting the under-protest stuff, right?

[00:43:19] Speaker 07:
We must forget the under-protest stuff.

[00:43:21] Speaker 07:
I mean, with respect, the under-protest language is simply language on paper.

[00:43:27] Speaker 07:
The existence of the protest is designed for one purpose and one purpose only under Viraj, which is to preserve the government's standing on appeal in the event that they are required to do something they do not wish to do repeatedly at the court of

[00:43:40] Speaker 07:
international trade, and then the quote of international trade affirms a final result.

[00:43:44] Speaker 07:
They could be withoutstanding.

[00:43:45] Speaker 07:
That's what Barack says.

[00:43:47] Speaker 01:
So are you saying, I mean that's the early question we had, are you saying that we have to give deference to commerce's determinations that are filed under protest?

[00:43:57] Speaker 07:
That's precisely what I'm saying.

[00:43:59] Speaker 07:
If there are factual determinations,

[00:44:01] Speaker 07:
those that are supported by record evidence.

[00:44:03] Speaker 08:
Now, what I would say is... What would we do hypothetically, though, if we found commerce's first remand determination was supported by substantial evidence?

[00:44:11] Speaker 07:
You would support, you would sustain, you would set aside everything else supported by international trade duties afterwards.

[00:44:16] Speaker 07:
That's right.

[00:44:17] Speaker 07:
That's right.

[00:44:18] Speaker 08:
You have an obligation... So you're not giving deference to their third and fourth ones over... That's correct.

[00:44:24] Speaker 07:
Yes, it's a sequential review.

[00:44:26] Speaker 07:
It's a sequential review, and it needs to be.

[00:44:27] Speaker 07:
And you're guided also by the appellant's claims of legal error.

[00:44:32] Speaker 07:
meaning they claim legal error in the first determination of the Court of International Trade and they claim legal error in the second determination.

[00:44:39] Speaker 08:
Can I ask you, just please, in terms of what would happen if we disagree with you and find that commerce's first remanded determination is supported by substantial evidence, is this just a reverse or do we need to remand it for the CIT to do anything further?

[00:44:56] Speaker 08:
Does it need to go back to commerce?

[00:44:58] Speaker 07:
The question this court must decide is whether or not commerce needs to read and apply the entirety of the scope as written.

[00:45:05] Speaker 07:
or whether they are free to disregard and not consider.

[00:45:09] Speaker 08:
You're not answering.

[00:45:11] Speaker 08:
I understand what you're trying to say.

[00:45:14] Speaker 08:
Let's assume we reject that argument.

[00:45:16] Speaker 08:
Right.

[00:45:16] Speaker 08:
So my question is, if we find that Congress's first remand determination was supported by substantial evidence and is not contrary to law,

[00:45:26] Speaker 08:
In other words, that it should have been sustained by the CIT.

[00:45:29] Speaker 08:
Procedurally, what do we do?

[00:45:31] Speaker 08:
Do we reverse it and send it back to the CIT?

[00:45:35] Speaker 08:
Or is it just an outright reverse and we find that remand determination is what applies going forward?

[00:45:43] Speaker 07:
The court has the ability to sustain, I think, an intermediate determination by the agency that came up on appeal.

[00:45:50] Speaker 07:
So I think you would set aside the subsequent determinations

[00:45:54] Speaker 07:
by the Court of International Trade and the subsequent remand results.

[00:45:57] Speaker 07:
OK, let me try one more time.

[00:45:58] Speaker 07:
Do you understand?

[00:45:58] Speaker 07:
Yeah, you would affirm it.

[00:45:59] Speaker 07:
So you would affirm it.

[00:46:01] Speaker 07:
It doesn't have to be remanded back to the agency.

[00:46:03] Speaker 07:
You would tell me it would have to be reversed.

[00:46:06] Speaker 07:
It would have to be reversed.

[00:46:07] Speaker 07:
Yeah, you'd be reversing the final determination of the Court of International Trade.

[00:46:10] Speaker 08:
OK.

[00:46:11] Speaker 08:
And we don't have to send it back?

[00:46:14] Speaker 07:
I don't think it would have to be sent back.

[00:46:16] Speaker 08:
I just wanted to get to you, because I'm going to ask your friends who I wanted to give you both a shot at.

[00:46:23] Speaker 01:
All right, well, you've got this weird thing where you wanted to divide time for someone else to have a minute, because we're at that point.

[00:46:35] Speaker 01:
Thank you very much for your argument.

[00:46:39] Speaker 06:
Thank you.

[00:46:39] Speaker 06:
I'm Jeremy Dutra on behalf of Columbia Aluminum.

[00:46:42] Speaker 06:
I just want to make a couple of points about Columbia Aluminum.

[00:46:44] Speaker 06:
On the first remand determination about going through the sub assembly in parts, the fact that the court pointed out the trial court, they didn't look at the entire record.

[00:46:54] Speaker 06:
Congress didn't consider the actual product in front of it, the Columbia Loomans threshold.

[00:47:00] Speaker 06:
They considered something about worldwide, but they didn't actually look at Columbia's actual product.

[00:47:04] Speaker 06:
They talked about amorphous, what can generally be done, but they didn't actually look at the product before them in the record evidence.

[00:47:11] Speaker 06:
And once they did that, they made the determination that, yes, it is in fact a final product.

[00:47:17] Speaker 06:
That is, bought and sold in Home Depot or Lowe's, it is installed

[00:47:22] Speaker 06:
in a building on the floor, and it's unlike.

[00:47:26] Speaker 08:
But is that because they found your product is different from Worldwide's, or they finally addressed yours in the ones they did under protest?

[00:47:34] Speaker 06:
They finally addressed ours, and it is different.

[00:47:36] Speaker 08:
Is there any reason to think that if they had addressed yours specifically in the first room in determination, that they would have found it factually distinct from the Worldwide products?

[00:47:47] Speaker 06:
without knowledge about, I'm not part of the protector group, so I don't know the answer to that, but had they actually looked at our actual product and the evidence for our product on the record, they would not have reached the same determination.

[00:47:58] Speaker 06:
Because in Shandang and in China Customs, both of those applicants conceded that their products were in fact just parts for a final product, and that there was no independent consumptive value.

[00:48:10] Speaker 06:
That was very different than the record evidence here.

[00:48:11] Speaker 06:
And once they decided that, and once they actually looked at the Columbia aluminum evidence,

[00:48:19] Speaker 06:
I'll be able to protest.

[00:48:22] Speaker 06:
There's nothing further.

[00:48:22] Speaker 06:
I thank Your Honors for the time.

[00:48:25] Speaker 01:
Thank you.

[00:48:26] Speaker 01:
We'll restart two minutes, everybody.

[00:48:28] Speaker 03:
Thank you.

[00:48:30] Speaker 08:
Can you address that last point?

[00:48:31] Speaker 08:
I'm a little troubled by that.

[00:48:32] Speaker 08:
How can we affirm the first remand determination as to Columbia if there's no substantial evidence to support a finding that theirs are sub-assemblies?

[00:48:45] Speaker 08:
even if they're clearly all the same kind of things.

[00:48:50] Speaker 03:
Well, let me start maybe then by addressing the premise that Columbia's core thresholds are not sub-assemblies and whether the record would support that.

[00:48:57] Speaker 08:
No, no, let's just, it's not so much that there, I think what he said was the first remand determination doesn't discuss Columbia's at all.

[00:49:08] Speaker 08:
Is that true?

[00:49:10] Speaker 03:
Again, it's not true in the sense that there's a very robust background of what Commerce decided to include about the appellee's descriptions of their door thresholds.

[00:49:18] Speaker 03:
They made very intentional decisions about what parts of those requests to include, including the descriptions of them as designed to fit doors, as ready for installation into doors.

[00:49:27] Speaker 03:
Those were intentional recitations for later use in that determination that they were parts for a door.

[00:49:34] Speaker 03:
And confirming, well, I'll give you four record sites, if I may.

[00:49:40] Speaker 03:
just to confirm that if we are in substantial evidence territory because we have established the sub-assembly framework, here is adequate ample evidence that these are ready to be used in a downstream product at appendix 497.

[00:49:54] Speaker 01:
These are Columbia.

[00:49:55] Speaker 03:
These are both.

[00:49:56] Speaker 03:
These are two for worldwide and two for Columbia.

[00:49:58] Speaker 01:
Okay.

[00:49:59] Speaker 01:
Well, give us the Columbia.

[00:50:00] Speaker 03:
Columbia at appendix 1760.

[00:50:04] Speaker 03:
Columbia explained that its thresholds are quote, assembled as is into a door unit.

[00:50:09] Speaker 00:
What was that size, 17?

[00:50:10] Speaker 03:
1760, 1760.

[00:50:14] Speaker 00:
Okay.

[00:50:14] Speaker 03:
At Appendix 1851, Columbia noted that its door thresholds are, quote, ready for immediate installation into a door, arguing expressly that its thresholds are sub-assemblies.

[00:50:29] Speaker 00:
Okay.

[00:50:29] Speaker 03:
If you'd like the worldwide quotes, there are appendix sites for those as well, and I'll note also on the point that some of

[00:50:38] Speaker 03:
with the CCM appellant who conceded that their parts were sub-assemblies.

[00:50:42] Speaker 03:
There is actually a concession in this case to that effect as well.

[00:50:45] Speaker 03:
In the scope request submitted by both Worldwide and Columbia, they argued expressly, relying on a 2015 CIT decision called Rubbermaid, that something can be both a sub-assembly and finished merchandise.

[00:50:58] Speaker 03:
And the fact that the result of which, of course, is that if their parts are sub-assemblies, they too could be finished merchandise.

[00:51:05] Speaker 03:
As Judge Hughes noted, that is

[00:51:07] Speaker 03:
flatly now foreclosed by controlling law, and as to whether commerce needed to address both the finished merchandise exclusion and the sub-assembly framework, the question is binary.

[00:51:18] Speaker 03:
At the point that commerce determines that something is an assembly, meaning that it consists of aluminum, extruded aluminum, and also other components, it is one of two things for purposes of this appeal, setting aside the kit's exclusion.

[00:51:31] Speaker 03:
It is either a sub-assembly, meaning that it's a part of a larger good or something that needs something else to function, or it is finished merchandise.

[00:51:38] Speaker 03:
In finding that it was a sub-assembly, commerce necessarily found that the finished merchandise exhibition could not apply.

[00:51:44] Speaker 01:
Thank you very much.

[00:51:47] Speaker 07:
May I just make one factual note?

[00:51:50] Speaker 07:
That's relevant to this discussion.

[00:51:53] Speaker 07:
I don't want to make an additional argument.

[00:51:55] Speaker 07:
I just want to clarify that.

[00:51:56] Speaker 07:
So all of Commerce's decisions were under protest.

[00:52:00] Speaker 07:
All of them in this case.

[00:52:02] Speaker 01:
Go ahead.

[00:52:03] Speaker 01:
You can respond to that.

[00:52:04] Speaker 01:
That's why we don't do this, because argument was concluded.

[00:52:08] Speaker 01:
But you can respond since he said.

[00:52:09] Speaker 03:
The second decision, which is the first remand redetermination, was issued in part under protest.

[00:52:14] Speaker 03:
Commerce specifically noted that because the CIT did not, the sub-assembly determinations, the sub-assembly parts of that.

[00:52:22] Speaker 01:
Thank you.

[00:52:23] Speaker 01:
Case is submitted.