[00:00:00] Speaker 00:
We will hear argument next in number 241189, Faleo, North America, against United States.

[00:00:09] Speaker 03:
May it please the court.

[00:00:11] Speaker 03:
Under basic canons of construction, the Department of Commerce must interpret scope language as a whole and in context, not by isolating or distorting individual terms.

[00:00:24] Speaker 03:
This interpretive rule is well established by this court, including Meridian Products and ArcelorMiddle.

[00:00:31] Speaker 03:
Yet, that is exactly what happened here.

[00:00:34] Speaker 03:
Commerce parsed a defined phrase, three series alloy as designated by the Aluminum Association.

[00:00:43] Speaker 03:
Commerce severed the term designated from the surrounding language and interpreted it outside the industry context.

[00:00:52] Speaker 03:
These terms

[00:00:53] Speaker 03:
Three series, alloy, designated, the aluminum association.

[00:00:57] Speaker 03:
These are all industry-specific terms and cannot be interpreted outside the aluminum context.

[00:01:04] Speaker 03:
In our solo middle, the court said, when interpreting the plain meaning of the scope language, are you saying that designated is equivalent to registered?

[00:01:14] Speaker 05:
That is correct.

[00:01:15] Speaker 05:
Well, if they admit register, why wouldn't they use the word register?

[00:01:18] Speaker 03:
Because that's the way that word is used in the aluminum industry.

[00:01:23] Speaker 01:
The word designation... What about the teal sheets themselves?

[00:01:26] Speaker 01:
They repeatedly say, you know, in order to register, you need to first designate and things like that.

[00:01:32] Speaker 01:
They use the words registration and designations.

[00:01:34] Speaker 01:
Why doesn't that indicate that they mean something different?

[00:01:38] Speaker 03:
The teal sheets also use the word designated and desginate and desginating.

[00:01:44] Speaker 03:
to refer to the act of assigning for this number to an unregistered alloy.

[00:01:50] Speaker 01:
Right.

[00:01:51] Speaker 01:
I think that they use, it's similar to Judge Hughes' question, where it refers to designating something before you register it.

[00:02:02] Speaker 01:
And so therefore, it uses those words mean two different things.

[00:02:08] Speaker 01:
So why isn't, again, going back to the question of if designate means register, why wouldn't the teal sheets use the same language instead of having to use the same words?

[00:02:23] Speaker 01:
Use the same language instead of using two different words.

[00:02:26] Speaker 03:
I believe the teal sheets use the word register when it tries to explain what designation means or what the word, the term designate means.

[00:02:37] Speaker 03:
So it's providing its own explanation of the term designate.

[00:02:42] Speaker 01:
You might want to at some point point out where that's happening because I'm not reading that document the same way you are.

[00:02:48] Speaker 03:
Sure.

[00:02:52] Speaker 03:
The phrase three series as designated by the Aluminum Association with

[00:02:57] Speaker 05:
Let's just assume we disagree with you that this is unambiguously in your favor and that when the scope order here is ambiguous on its face, then why isn't commerce right in its K1 and K2 analysis?

[00:03:13] Speaker 03:
Would you please repeat that?

[00:03:15] Speaker 05:
You lose on plain language.

[00:03:18] Speaker 05:
Do you lose then because commerce's determinations under K1 and K2 are legally correct and supported by substantial evidence?

[00:03:25] Speaker 03:
We believe that we still win on the substantial evidence standard as well.

[00:03:31] Speaker 03:
And I can continue on to make those arguments.

[00:03:35] Speaker 05:
Well, that's the question I just asked you.

[00:03:38] Speaker 03:
Sure.

[00:03:38] Speaker 03:
So based on the substantial, first of all,

[00:03:42] Speaker 03:
Assuming that we lose on the plain meaning argument, then the next step would be the K1 analysis.

[00:03:49] Speaker 03:
And our argument is that Commerce used an impermissible K1 source, which is its separate rate determination, because it doesn't contain any description of the merchandise which is required under Commerce's own regulation.

[00:04:03] Speaker 05:
I mean, the determination itself is a permissible K1 source, right?

[00:04:07] Speaker 03:
Our position is that it is not, because- No, no, no, no.

[00:04:12] Speaker 05:
If we're just looking at the determination, that's a permissible K1 source.

[00:04:16] Speaker 05:
I think your position is, and correct me if I'm wrong, that commerce didn't just look at the determination itself, which is on the record, but the underlying application.

[00:04:25] Speaker 05:
and that that's not a K-1 source.

[00:04:27] Speaker 03:
Our position is actually not that.

[00:04:29] Speaker 03:
Our position is that the determination itself is not a K-1 source.

[00:04:33] Speaker 03:
It has to be... What's your basis for that?

[00:04:36] Speaker 03:
It's a determination of commerce.

[00:04:37] Speaker 05:
Don't talk over me.

[00:04:39] Speaker 05:
It's a determination of commerce.

[00:04:41] Speaker 05:
That's a K-1 source.

[00:04:42] Speaker 05:
Why isn't it a proper K-1 source?

[00:04:45] Speaker 03:
Because the terms of the regulation says that descriptions of merchandise contained in

[00:04:52] Speaker 03:
Commerce's determination, that's the full phrase used in Commerce's regulation.

[00:04:57] Speaker 03:
And we believe that phrase is crystal clear and there's no room, there's no ambiguity in the regulation.

[00:05:02] Speaker 05:
You don't think that separate rate determination describes the goods that are going to get the separate rate?

[00:05:08] Speaker 03:
It does not.

[00:05:11] Speaker 05:
How does it give it a separate rate then?

[00:05:13] Speaker 03:
The separate rate determination consists of six pages in the preliminary determination.

[00:05:18] Speaker 03:
And in those six pages, Commerce discusses why or

[00:05:22] Speaker 03:
Why some companies are entitled to separate rates?

[00:05:26] Speaker 03:
Because they are free from government control over their export activities.

[00:05:30] Speaker 03:
They do not discuss the merchandise that they export.

[00:05:33] Speaker 03:
The only phrase used in the separate rate determination is the phrase subject merchandise.

[00:05:40] Speaker 03:
And that's the question at issue here.

[00:05:42] Speaker 03:
What is the subject merchandise?

[00:05:44] Speaker 03:
But that's the only word used in the separate rate determination, the subject merchandise.

[00:05:49] Speaker 05:
Which is referenced in the applications?

[00:05:52] Speaker 03:
We believe that commerce cannot incorporate an external document into their determination.

[00:06:01] Speaker 03:
There are a number of due diligence issues.

[00:06:04] Speaker 03:
For example, parties never had any comment to make comment on the particular issue, because it's information that is not expressly incorporated into the determination itself.

[00:06:16] Speaker 05:
I mean, it's the basis for the entire application.

[00:06:20] Speaker 03:
That is also true.

[00:06:21] Speaker 03:
And the alternative position is that even if you could incorporate the separate rate application, the application itself does not include any description of their merchandise.

[00:06:30] Speaker 03:
The only so-called description is their alpha numerical code, their commercial product code, which tells nothing.

[00:06:39] Speaker 03:
And in fact, two years after the separate rate determination, Commerce issued a questionnaire in which they asked, what is this product code?

[00:06:48] Speaker 03:
What does it mean?

[00:06:49] Speaker 03:
So even in the application, there is no description of the merchandise.

[00:06:58] Speaker 00:
The product code in the numeral XXX form.

[00:07:03] Speaker 00:
Was the product code in this like 3 XXX form?

[00:07:08] Speaker 03:
It was not, actually.

[00:07:11] Speaker 03:
It was similar, but based on the similar

[00:07:16] Speaker 03:
The fact that it's similar, we believe that that's only a mere speculation and that's demonstrated by the record itself because two years later, Commerce came back and said, what is this?

[00:07:27] Speaker 03:
What does it mean?

[00:07:29] Speaker 03:
So Commerce can argue that two years before asking that question, they had an idea of what the product was.

[00:07:40] Speaker 01:
Can I ask you just a housekeeping question?

[00:07:41] Speaker 01:
I don't know if it's housekeeping, but just more background.

[00:07:44] Speaker 01:
What is the purpose of this registration system in your view?

[00:07:49] Speaker 03:
So this registration system, the purpose, it's an industry standard, right?

[00:07:55] Speaker 03:
The American Aluminium Association wants to know what alloys are out there, and they want parties to use their designations as the standard name for their alloys.

[00:08:16] Speaker 01:
making a particular product, say an automobile, I can know what I'm getting?

[00:08:22] Speaker 01:
Exactly, your honor.

[00:08:24] Speaker 03:
Thank you.

[00:08:24] Speaker 03:
And one thing that I wanted to note is that the aluminum association designations do not have any residual capital.

[00:08:31] Speaker 05:
Why do you think that commerce would have limited the scope order to only registered articles rather than stuff that is being dumped on the American market, even if it's not registered?

[00:08:41] Speaker 03:
I think Congress could clearly do exactly what they are claiming to have done in the past by simply just

[00:08:51] Speaker 03:
Naming the prime major alloying element, it's not a very difficult definition.

[00:08:58] Speaker 03:
If an alloy contains manganese, then it's covered.

[00:09:01] Speaker 03:
If an alloy contains magnesium, then it's covered.

[00:09:05] Speaker 05:
So if this scope thing after the 135 series alloy had the words in the types as designated by the Illumina Association, that would be clearer.

[00:09:15] Speaker 03:
That would have been clear, but now here's another point.

[00:09:19] Speaker 03:
Commerce's alternative interpretation refers to no term.

[00:09:23] Speaker 05:
Sorry, I want to follow up on that.

[00:09:24] Speaker 05:
Why do we need that language?

[00:09:26] Speaker 05:
Because your view is that designation means registration only.

[00:09:30] Speaker 05:
Exactly.

[00:09:30] Speaker 05:
So if we added in the types, that wouldn't be altering the definition of designation.

[00:09:35] Speaker 05:
So it would still be

[00:09:37] Speaker 05:
in the types as registered.

[00:09:39] Speaker 05:
I'm just curious, you didn't really answer the question.

[00:09:43] Speaker 05:
Why do you think commerce ever would limit a scope to certain registered alloys rather than all the types of alloys that would otherwise be within the investigation and dumping order just because somebody had a proprietary blend or

[00:10:00] Speaker 05:
you know, had some other thing that didn't even, they didn't get registered.

[00:10:05] Speaker 05:
That would seem to allow for distortion in the market and be contrary to what you said was the Illumina Association's goals of getting people to register and stuff.

[00:10:16] Speaker 05:
If we allowed you to not have duties because you weren't registered, then nobody would register their alloys.

[00:10:22] Speaker 03:
I think that point is consistent with the plain language of the scope, which says that common alloy

[00:10:29] Speaker 03:
aluminum sheets.

[00:10:32] Speaker 03:
We believe that it was the Aluminum Association's intent to cover.

[00:10:36] Speaker 05:
I don't care about the Aluminum Association's intent.

[00:10:39] Speaker 05:
I care about commerce's intent in doing this investigation and the scope of the investigation and order in determining what to assess duties on.

[00:10:48] Speaker 05:
It seems to me almost impossible that commerce would have thought, well, there are going to be these outweighs coming in that are

[00:10:57] Speaker 05:
that are covered by our investigation and are being dumped but we're not going to assess duties upon them because they're not registered.

[00:11:04] Speaker 03:
It is not uncommon for commerce to align their scope definition with the intent of the petitioner and in this case what should be what commerce is intent or

[00:11:16] Speaker 03:
the petitioners intend was to cover aluminum alloys that are widely used in the industry and not limit the imports of aluminum alloys that are very required in the U.S.

[00:11:28] Speaker 03:
market, the imported aluminum alloys that are very required in the niche uses for those because those would clearly prohibit the proper function of the industry.

[00:11:46] Speaker 03:
All right.

[00:11:50] Speaker 00:
So the legal principle in a- Can I just say you're just about into your rebuttal time, if you want to save the extra 10 seconds.

[00:12:05] Speaker 03:
All right.

[00:12:06] Speaker 03:
May I just make one more point, if possible?

[00:12:12] Speaker 03:
Oh, regarding note two, even if you look at note two of the TLSH, which Commerce claims to have been the source, the definitional source of its alternative interpretation, that source actually says that aluminum series contains only registered alloys.

[00:12:31] Speaker 03:
And the reason is the original text of the note two says the first of the four digits in the designation indicates the alloying group.

[00:12:42] Speaker 03:
This is Appendix page 897.

[00:12:47] Speaker 01:
Thank you.

[00:12:50] Speaker 01:
And you said note 2.

[00:12:56] Speaker 00:
And I'm sorry, is this?

[00:12:59] Speaker 03:
That is the Teal Sheet, Your Honor.

[00:13:00] Speaker 03:
And that is one page of the Teal Sheet.

[00:13:03] Speaker 01:
So your view is that this page of the Teal Sheet supports your position that designations and registration are the same thing?

[00:13:11] Speaker 03:
Exactly.

[00:13:12] Speaker 03:
And that is the case throughout the Teal Sheet.

[00:13:15] Speaker 03:
And not only that, if you look at the note, it says the first of the four digits in the designation indicates the alloy group.

[00:13:21] Speaker 03:
And even the government agrees that the word designation is used to refer to registered alloy in the kill sheet.

[00:13:27] Speaker 03:
So this note says that the first of the four digits code for a registered alloy indicates the alloy group.

[00:13:38] Speaker 03:
Now compare this to the appellate's language in its response on page 21.

[00:13:45] Speaker 03:
The appellate says, the first of the four digits in the designation system indicates the alloy group.

[00:13:53] Speaker 03:
The government literally took the sentence from note two and inserted the word system in there to suggest as if there's some kind of general series grouping.

[00:14:02] Speaker 03:
In fact, the note says the exact opposite.

[00:14:05] Speaker 03:
So even on the substantial standards,

[00:14:09] Speaker 03:
substantial evidence standard, we do not believe the government's alternative interpretation was reasonable.

[00:14:17] Speaker 01:
What about, there's language, for example, on this very same page, up at the top third full paragraph, it says, numerical designation assigned in conformance with this recommendation should only be used to indicate an aluminum or aluminum alloy having chemical composition limits identical to those registered

[00:14:39] Speaker 01:
Right?

[00:14:40] Speaker 01:
So saying a numerical designation should be identical to something that's registered.

[00:14:46] Speaker 01:
Using those words mean two different things.

[00:14:48] Speaker 01:
In other words, when you're going to register an alloy, you're going to first designate it in which series, and then you can register it.

[00:14:56] Speaker 01:
Why isn't that the most reasonable understanding of this language?

[00:14:59] Speaker 03:
I believe, we believe that particular note says that unless it meets the exact chemical composition limits in the TLCs, you cannot use the four digit number to refer to an alloy that is similar.

[00:15:21] Speaker 03:
Thank you.

[00:15:41] Speaker 02:
Good morning, Your Honors.

[00:15:42] Speaker 02:
May it please the Court.

[00:15:44] Speaker 02:
The Court should affirm the judgment of the Court of International Trade because Commerce lawfully conducted a scope inquiry under 19 CFR Section 351.225.

[00:15:52] Speaker 02:
I'll focus on two points today addressing arguments that were made this morning.

[00:15:59] Speaker 02:
First, Commerce correctly determined that the scope language is ambiguous, and second, Commerce correctly relied on and evaluated K-1 sources.

[00:16:09] Speaker 05:
Can you jump to that?

[00:16:10] Speaker 05:
Why was it appropriate to rely on the separate rate determination here if it didn't identify the specifics of the alloy that was at issue?

[00:16:21] Speaker 02:
Well, first, it is, I think, unequivocally a K1 source, because it is, just according to regulation, a determination of Secretary of Commerce.

[00:16:33] Speaker 05:
OK.

[00:16:33] Speaker 05:
I mean, I'm with you on that.

[00:16:34] Speaker 05:
But how is it helpful if it, on its face, doesn't

[00:16:39] Speaker 05:
tell you they get a separate rate for this, I think it's another proprietary alloy, right?

[00:16:46] Speaker 05:
They get a separate rate for this proprietary alloy.

[00:16:49] Speaker 05:
If it doesn't add that, why does that tell us anything on the determination itself about what the scope is?

[00:16:55] Speaker 02:
Well, Your Honor, they would only get a separate rate determination if the merchandise

[00:17:01] Speaker 05:
Oh, no, I understand it.

[00:17:03] Speaker 05:
And the application certainly details that it's, that it's not of the designated or the registered ones.

[00:17:11] Speaker 05:
Right.

[00:17:12] Speaker 05:
But that's in the application.

[00:17:14] Speaker 05:
So I guess the first question is, is it sufficient that it's in the application?

[00:17:21] Speaker 05:
because that's not a determination.

[00:17:22] Speaker 05:
Do you think that becomes encompassed in part of the determination?

[00:17:26] Speaker 02:
I think that's a fair way to describe it, that it becomes encompassed in part of the determination.

[00:17:30] Speaker 02:
I think it's relevant here that in light of the missing information in the determination itself, commerce didn't say that that source is dispositive.

[00:17:40] Speaker 02:
Commerce said it weighs in favor of

[00:17:45] Speaker 02:
of a finding that unregistered alloys can be included within scope.

[00:17:48] Speaker 02:
But it went on and conducted a K2 analysis.

[00:17:51] Speaker 02:
But the determination itself is... I think that's the distinction you have to draw.

[00:17:56] Speaker 02:
I, like you, Judge Hughes, understood their argument to be that the K1 source was the application rather than the determination.

[00:18:02] Speaker 02:
But the determination is where the interpretive value came from.

[00:18:06] Speaker 02:
It wasn't the application.

[00:18:08] Speaker 02:
The application without the determination

[00:18:11] Speaker 02:
wouldn't have given any indication as to commerce's intent with respect to the scope language.

[00:18:18] Speaker 02:
It was the determination that a separate rate could be assigned that indicated commerce understood that merchandise which was unregistered fell within the scope of the orders.

[00:18:32] Speaker 01:
I have something I'm confused about.

[00:18:33] Speaker 01:
And frankly, I'm not sure if it matters, but I'm unclear where the title sheets fall set.

[00:18:40] Speaker 01:
Is it something that's incorporated by reference because of the language and the regulation itself?

[00:18:49] Speaker 01:
Is it a K1 source or is it a K2 source?

[00:18:53] Speaker 01:
And I was just trying to understand that.

[00:18:54] Speaker 02:
Yeah, I think the trade court analyzed it correctly and basically said it doesn't matter.

[00:19:01] Speaker 02:
Did they put it in a bucket?

[00:19:04] Speaker 01:
I couldn't tell.

[00:19:04] Speaker 01:
I think in their first opinion,

[00:19:07] Speaker 01:
May have said it was incorporated So at least that seems to be the way they treated it.

[00:19:14] Speaker 02:
Yeah, I think that's right I think what they said was that at least with respect to the 3x portion of the the orders that the teal sheets Provided the the relevant trade usage that could be used even in a k-0 analysis I don't think that they could be considered that

[00:19:34] Speaker 02:
necessarily a K-1 source because, again, we have the designated language that qualifies as K-1 sources.

[00:19:41] Speaker 02:
But, again, the relevant trade usage can be taken into consideration in conducting a K-1 analysis or a K-0 analysis.

[00:19:49] Speaker 05:
So, if hypothetically the teal sheets have been really, really clear and stated what we understand your position to be, that

[00:19:57] Speaker 05:
that designated and registered are different and that designated just means of the type in these categories, then that could come in at K0 to make this unambiguously in your favor.

[00:20:10] Speaker 02:
Yes.

[00:20:11] Speaker 02:
If it was clear.

[00:20:12] Speaker 02:
In theory, that's right.

[00:20:13] Speaker 02:
I think that the problem we might run into with that is can the teal sheets

[00:20:18] Speaker 02:
sort of monopolize the use of the word designates such as that is unequivocally an industry understood.

[00:20:25] Speaker 05:
Well, if that's what it says, let's assume that's what it says.

[00:20:27] Speaker 02:
Okay, fair enough.

[00:20:27] Speaker 02:
Then yes, I think that's right.

[00:20:29] Speaker 05:
If the teal sheets, and I think the problem here is that they're maybe not that specific, but if they'd said this is exactly, the definition is the same thing the government has in its scope, essentially, then they could come in and be definitional at K zero as trade usage.

[00:20:47] Speaker 02:
That's right if there was if I think that this sort of that's the case can you then then?

[00:20:53] Speaker 02:
You still look to them at k0, but sometimes they don't answer the question at k0 correct And I think you I think in particular here you look at them the k0 not necessarily for the term Designate I mean unless as your honor

[00:21:08] Speaker 02:
unless they were clear as to the use of the term designate, but it's really related to the 3x series core, which indicates that the core has a primary alloying agent of manganese.

[00:21:21] Speaker 02:
And so that's sort of what the teal sheets provide us at the K0 analysis.

[00:21:29] Speaker 05:
But if they're used at K0, then why would you use them again at K1?

[00:21:36] Speaker 02:
Confuse me a little bit about the trial courts reasoning to I don't think that I Believe it was just last month and in Vandal water This court said that that you can consider trade usage at your case your analysis It's not it's not as fulsome as it would be at k1 or k2 I don't think that the court has to or commerce has to remove

[00:22:00] Speaker 02:
relevant trade usage from its analysis just because it's moving beyond a K0.

[00:22:05] Speaker 02:
I think it's still considered in the context of the K1 sources or eventually K2 sources.

[00:22:15] Speaker 02:
I'll address Vallejo's contention with respect to notice that it had with the application.

[00:22:27] Speaker 02:
Vallejo relies on mixed media cases, which are entirely inapplicable.

[00:22:34] Speaker 00:
Those cases involve- Just to be clear, when you say application, you mean the application for a scope

[00:22:39] Speaker 02:
Sorry, the separate rate application.

[00:22:42] Speaker 02:
They're saying the information within the separate rate application was not publicly available.

[00:22:46] Speaker 02:
And because that information was not publicly available, the determination cannot be a K-1 source.

[00:22:52] Speaker 02:
But again, mixed media cases involve a situation where the language of the orders unequivocally provides that the merchandise is or is not subject to the orders.

[00:23:04] Speaker 02:
And because it's a mixed media source,

[00:23:06] Speaker 02:
the merchandise is packaged together with a non-subject item, what the court has said is that if commerce is going to interpret using K-1 sources, the language in a manner that is

[00:23:21] Speaker 02:
contrary to the literal terms of the orders, then those K1 sources need to be publicly available.

[00:23:27] Speaker 02:
But here, that's necessarily not the case.

[00:23:30] Speaker 02:
If we're getting to a K1 analysis, there has already been a determination that the orders themselves are, in fact, ambiguous.

[00:23:39] Speaker 02:
That's sort of the threshold in order to get there.

[00:23:43] Speaker 02:
And so that necessarily means that Vallejo or a party in Vallejo's position was aware of the interpretation of the orders, that their product could be subject to them.

[00:23:57] Speaker 02:
And so the notice concerns raised just are not applicable.

[00:24:03] Speaker 00:
Can I ask a kind of general doctrinal question?

[00:24:08] Speaker 00:
The notion of ambiguity has undergone some changes in the last half dozen years initially in Kaiser about the interpretation of a regulation.

[00:24:21] Speaker 00:
Does any of that change in how much work one does and how many kinds of sources of interpretive assistance one looks at to conclude in the end that there's no ambiguity, have any bearing on the ambiguity cut off in the staging of this analysis?

[00:24:49] Speaker 02:
Your honor, broadly speaking, I'm not sure.

[00:24:52] Speaker 02:
I don't think it does in the context of this case.

[00:24:56] Speaker 02:
Again, I think that's in part because Vallejo hasn't challenged Commerce's K2 analysis, which ultimately determined that its product was in scope.

[00:25:08] Speaker 02:
Am I answering your question?

[00:25:10] Speaker 00:
Well, it wasn't.

[00:25:13] Speaker 00:
One of the papers here, I think, indicated that one can get to a conclusion of ambiguity pretty darn quickly in this context.

[00:25:30] Speaker 00:
That used to be the case pre-Kaiser and counterpart in Chevron world.

[00:25:38] Speaker 00:
There was a period when that was very, very prevalent.

[00:25:43] Speaker 00:
And I guess my question is, and that's no longer the case, does that alteration of the meaning of the term ambiguous have any bearing on the

[00:25:59] Speaker 00:
use of the term in this context where there's a K0 inquiry and then a K1 inquiry and a K2 inquiry and apparently you're not allowed to peek ahead without resolving each one before you can get to the others.

[00:26:15] Speaker 02:
Again, I don't think that sort of analysis is present here in the context of commerce's orders.

[00:26:27] Speaker 02:
I think the court has reiterated that the threshold to find ambiguity at K-0 analysis is still a low threshold.

[00:26:34] Speaker 02:
Again, I think that was...

[00:26:37] Speaker 02:
Because in Vandewater and Sahathai, which is a case from last year, what the court said is that, and what Commerce and Regulation says is that these orders are written intentionally broadly.

[00:26:50] Speaker 02:
And so because they're written in general terms,

[00:26:54] Speaker 02:
it's likely there may be ambiguities sort of inherently present.

[00:26:59] Speaker 02:
And here, I think that's certainly the case because the orders, again, just speak broadly to this term of designation.

[00:27:07] Speaker 02:
Don't specifically say that the alloy must be a registered alloy by the aluminum association.

[00:27:14] Speaker 02:
And so just because they speak in general terms, I think that lends itself, practically speaking, to a determination that the orders are ambiguous.

[00:27:25] Speaker 00:
Can I just ask, this is on that little piece of the blue brief that questions the continuation of the original suspension.

[00:27:42] Speaker 00:
And it seems quite clear that if there was a original suspension that was valid and not undone, and I

[00:27:51] Speaker 00:
by the intermediate trade court ruling, and I don't think this one was, then the regulation provides for a continuation.

[00:27:59] Speaker 00:
What was the authority for the initial, what was it, 2015 or something, October, or October 2021?

[00:28:06] Speaker 02:
2021, October 15, 2021.

[00:28:08] Speaker 00:
October 15, 2021 suspension.

[00:28:11] Speaker 02:
Yeah, it was that same regulation at subsection L3.

[00:28:15] Speaker 02:
I have it here, and it says,

[00:28:22] Speaker 02:
where

[00:28:23] Speaker 02:
If the secretary issues a final scope ruling, so that's the context we're operating in, and then a couple of sentences later, it says, where there has been no suspension of liquidation, the secretary will instruct the custom service to suspend liquidation.

[00:28:39] Speaker 02:
So that's how we got the initial suspension.

[00:28:42] Speaker 02:
As Your Honor said, the trade court never did anything to vacate that initial suspension.

[00:28:47] Speaker 02:
And then under L1, that suspension continued when the scope inquiry was issued on remand.

[00:28:54] Speaker 02:
If the court has no further questions, we ask that the court affirm the judgment of the court.

[00:29:09] Speaker 04:
Thank you.

[00:29:09] Speaker 04:
Good morning, Your Honors.

[00:29:10] Speaker 04:
May it please the court?

[00:29:11] Speaker 04:
I'm John Herman, counsel to the Aluminum Association and several of its individual members.

[00:29:17] Speaker 04:
I just wanted to make a very quick point on ambiguity as we've spent a lot of time talking about that this morning.

[00:29:24] Speaker 04:
And what I would refer your honors to is the discussion at pages 13 to 16 of our brief.

[00:29:33] Speaker 04:
where we review the participation of Valeo before the International Trade Commission at the preliminary phase of the injury investigation conducted by the ITC.

[00:29:46] Speaker 04:
During that hearing that was conducted by the ITC,

[00:29:51] Speaker 04:
a Valeo representative testified at that hearing, talked explicitly about clad brazing sheet, talked explicitly about proprietary core alloys that were used, and all of the discussion during that conference indicated that that product was within the scope identified by the Commerce Department.

[00:30:14] Speaker 04:
I would submit to you that

[00:30:17] Speaker 04:
Valio's contention now that the scope language is unambiguous.

[00:30:22] Speaker 04:
conflicts directly with the testimony that they gave during the ITC hearing where they had a fundamentally different interpretation of the same language.

[00:30:32] Speaker 04:
I think people can disagree on whether something is unambiguous, but if you have a single party that has two different fundamentally opposed interpretations of the same language, that satisfies the definition of ambiguity.

[00:30:48] Speaker 04:
Happy to answer any other questions that you might have.

[00:30:52] Speaker 00:
Thank you.

[00:30:59] Speaker 00:
Yes please.

[00:31:01] Speaker 00:
Two minutes.

[00:31:02] Speaker 03:
Sure.

[00:31:06] Speaker 03:
Your Honors, I would like to just address the issue about the low threshold.

[00:31:11] Speaker 03:
The low threshold does not mean that the alternative interpretation can be unreasonable.

[00:31:17] Speaker 03:
That's because of the legal principle articulated in Do Farco, in which the court said that in order for merchandise to be included, it has to be either explicitly included by the scope or the scope must reasonably be interpreted or

[00:31:35] Speaker 03:
could reasonably be read to include the merchandise.

[00:31:40] Speaker 03:
And there are four.

[00:31:43] Speaker 03:
And the low threshold really refers to when there are two competing interpretations, commerce does not have to compare the reasonableness of those two interpretations and decide which one is more reasonable or the other.

[00:31:54] Speaker 03:
As long as it's reasonable, that's the bar set for the first hurdle in the analysis, which is the K zero plain meaning analysis.

[00:32:04] Speaker 03:
The next is

[00:32:05] Speaker 03:
I would like to just draw an important distinction between the teal sheets and K1 materials.

[00:32:12] Speaker 03:
The teal sheets contain the definition of three series alloy as designated by the Aluminum Association.

[00:32:18] Speaker 03:
And that definition is incorporated into the plain language of the scope.

[00:32:23] Speaker 03:
And this court held that the plain meaning of scope language must reflect industry usage.

[00:32:29] Speaker 03:
And also other sources, such as dictionaries,

[00:32:33] Speaker 03:
in those three standards are used in determining the plain meaning of the plain language.

[00:32:41] Speaker 03:
And that is different from K-1 materials because K-1 materials, on the other hand, are interpretive sources outside the plain language.

[00:32:48] Speaker 03:
They're different from what was ultimately adopted by the court.

[00:32:53] Speaker 03:
And therefore, when those two conflict, it's the plain meaning that governs the K-1 sources which are outside the plain language.

[00:33:03] Speaker 03:
Thank you, Your Honor.

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

[00:33:04] Speaker 00:
Thanks to all counsel.

[00:33:06] Speaker 00:
Case is submitted.