we have we have six cases before us today four are scheduled for argument and two are cases on the briefs so let's start with the first case of this morning it's fifteen dash thirteen because the trial courts of friends to a limited one of the tools that congress has been given to fight circumvention of its orders by holding that the prior commercial availability of a product can render that product immune from a minor alteration in green precluded commerce from conducting that inquiry the trial court created an improper threshold rule that the rule is contrary to the structure of the statute it is nowhere to be found in the legislative history and  congress's authority to develop the best methodology to all determine how to implement the antidumping duty and countervailing duty statutes is that you physician that the commercial availability factor is irrelevant entirely irrelevant to the minor alterations in corrie yes it is your own so even if this product is being sold all over the place it's just as common as let's say four point seven five now it's just as common as five point five and so throughout the united states and also produced and sold in the exporting countries that would be irrelevant to the minor alterations so i should clarify your honor our position is that of the fact that a product is available itself is a raft now there are other considerations that shade into the same area so for example one of the things that congress considers is the pattern of trade how how patterns of trade have changed after the stated in the legislative history and it also uses some of its own criteria such as how and when the merchandise entered the united states the timing and quality quantity of entries during the relevant period so there are aspects of that inquiry that get captured in the same way that there are aspects of the gamesmanship inquiry that the trial court was so concerned about that get captured what wouldn't we read the trade court's opinion is not based on some linkage rule of whether the merchandise was commercially available somewhere disha that in fact commerce was aware of it and therefore was contemplating the existence of smaller diameter wire rod and therefore it's reasonable for him to conclude that it was specifically excluded so i have three basic so so that so then the so then the rules such as it is that the trade court was trying to create wasn't a blanket rule against any and all commercially available merchandise that existed at the time of the border but it was more about the question is in what circumstances can we conclude that commerce fairly knew about it and was aware of it when it was crafting the scope of the order so so putting aside the fact that the record doesn't actually support finding that this product was available in the united states or that it was being produced in mexico at the time the order putting aside that the trial court's finding still relies on the exclusion actually sort of misses the point because the whole point of and of a minor alteration inquiry of an international convention inquiry is that products that fall outside the scope of an order can be brought in can be captured if they're being used to circumvent another backstop to that of course as we we do and it is a unique factual circumstance in which sometimes it's just so clear that i product was it was known to petitioners at the time they asked for the it doesn't appear in the scope of the order the petitioners commers were aware that there is a small diameter wire rod lower than five millimeters but we don't care about those what we care about is five to nineteen millimeter wairarapa and then of course the scope order says five in one thousand it doesn't specifically exclude doesn't go further and say and we explicitly say not anything below five but you can tell during wouldn't think it's appropriate to use a minor alterations inquiry under those circumstances when you know the importer now shows up at four point seven five millimeter or i know you are i think the proper analysis in that case would be for commerce to go through the minor alteration inquiry and the way that the kind of evidence you would think it was disclaimed somehow and during the process i don't think they've got to disclaim or necessarily has to preclude comment from like and during the during the investigation that led up to the imposition of the order just as explicitly said we're focusing on standard pipe we're going to exclude line and only after they discover that line  was actually then being used for the same purpose of this as a standard type they wanted to bring it back and this court but the other critical difference is that with one doesn't say that congress can't conduct a minor alteration inquiry with one says it is reasonable for commerce to decline to do so based on the unique and clear facts that are available to it and this court in subsequent cases in the pond and in target has clarified the broad language of we've the broad language upon injunction preventing congress from conducting a minor alteration inquiry and in fact it did so in a circumstance where the parameters of the scope were also numerically defined there was there was a numeric definition of  percentage of boron content that could be in a specified steel in the order the article that was alleged to be a minor minor alteration exceeded those those small percentages of commerce  were they had the same physical characteristics that the j a twelve conversely makes these findings they were the same user expectations the same and the use same trade channels the cost of modifying equipment to produce four point seven five millimeter rockets opposed to five  five point five millimeter rocket was the smallest that was being produced in mexico and imported into the united states at the time and commerce and the petitioners basically put a slightly larger bracket around that and said alterations inquiry why not could you change the facts of this case in a way that would then demonstrate why in that circumstance commerce wouldn't work with a minor alterations inquiry or are you saying that there's never a circumstance where commers is barred from doing a minor alteration theory i think our position is the lot of your honor that the commerce can in some cases is just so clear that congress doesn't have to initiate but but i don't think there's any precedent to support the notion that congress can actually conduct a five part test and then have the analysis evaluated by the  court based on the five factors that congress uses the methodological factors that constitutes i mean in other words i don't think so even if there is a specific and expressed disclaimer of a particular product or a particular particular product in the scope of the order that you would say no that doesn't count as a disclaimer that bars commerce from doing a minor alterations inquiry later on i think it would be i think it would be reasonable for congress not to do a minor alterations in court and pursuant to wheedle and if the court were to extend we plant then commerce could be barred but as it is i am not aware of any law or any basis to any precedent to suggest that congress they're on the record in the petition in the case and those were the parameters that we've petitioners look for when we define the product why ragna is defined as a product that range from a five point five millimeter diameter upwards and so we looked at that we recognize some when you see that was the smallest that could be made i mean the other side points to two to eight which is a page in your petition your original petition and block quotes an earlier report showing that yes the commercially significant the smallest i am there was five point five millimeter diameter but the same time back necessarily contemplates that there must have been something maybe commercially smaller but nevertheless something smaller scope although that was being that size was being produced in japan at the time to take not to our knowledge and that's the critical point what was in there a finding by commerce to that effect absolutely not your honor the finding the finding by congress was that it was being produced but not that we were they knew about well i didn't ask about that it was being produced it was being produced in japan a technical report came out but that report was published two months after the order was issued in our case so there's nothing of record on our product is incorrect it was not a well enough so that it is so you're saying you were aware of commercially available wire and that was less than five point five millimeters that was down to five that that's true but that was why we were dropping it to the five point zero because we wanted to allow for that possibility when you are petitioner and you're defining a scope you are trying to identify the products that are hurting you that actually are being produced you don't want to sleep and other products that aren't being produced or that you don't produce and that aren't injuring you think that the whole goal of the case is to focus on what is causing harm not to be overly broad and sweeping other products that's part of the problem here is once you define that in a way that's actually focused on the product that's express exclusion it's clear in the very first line that the scope the scope was consciously defined by petitioners limits subject merchandise to wire rod with a minimum with a diameter of five point zero zero millimeters definition in the sense that if financed by necessity of petitioners are limiting the subject merchandise to a precise diameter range by and in the minimum diving a range is five point or zero millimeters by definition everything below that is good and therefore once you have if you have a range in size and range and weight a range in tensile strength any characterization such as that would necessarily mean you imply or you would for an exclusion of everything outside of the range and there could be no amendment of the minor alteration analysis is that is that your argument the argument is that if a product six expressly said move the next step of the argument that i heard you making was that the reason there is express exclusion is because you have a range and once you have a range everything outside of the range is fair vote for mine or all directions and you saying that with respect to all characteristics of the described good in this case with respect when there is such a clear diameter  that's expressed but are our case is based on two factors and express it which is based on the court's precedent in the plain language of the statute and express exclusion based on a precise numerical diameter range and the petitioner or those are expressly excluded correct i mean the they if you were to investigate a look at the at the petition and look at the classroom kind determination and others you would you would expect that that  duke would you call that an expression yes that is an express exclusion but our exclusion is to be clear the purpose of a list of products that are specifically excluded those products are included in a list of products specifically excluded only because those products otherwise satisfy the scope definition in our case the very first line of the scope sets a clear minimum diameter to the hundredth of a millimeter and it would be totally  petitioners in the investigation was under clear as to whether dual stansell pipe which is a pipe that would satisfy both lot of standard line pipe specifications would be subject or not so congress requested the petitioners clarif of the case involved a product that was listed as a specific exclusion at the bottom but the point is we've learned is that a product that is unequivocally excluded knowingly cannot be the subject of a minor alteration in our case we don't  don't have the case the scope does not say in the list of products that are specifically excluded that y arrived with divers less than five point zero zero millimeters specifically excluded but to do so would be absurd and redundant because the very first line  of wire rod that was below the five point zero millimeters cannon says that's not so can you point us to something in the record that supports your view on that factual question i guess  there are a number of factors that it's stylish provide strong evidence of petitioners knowledge of small diameter wire rock which i defy you to mean why right with diners less than five point zero zero millimeters first off it's the fact that the first line of this scope itself if they i didn't see anything in that finding as to the knowledge of the commercial availability japan well it should be clear that if a product small that a wire on it's commercially available these are u s producers or sophisticated companies there in that that there's more to it there was also a us producer charter role in that it's in the record that was made king four millimeter wire rot as early as the one nine hundred ninety s and then of course there's the callus aki report that gets sent to confidential information but i'm not sure that produced and despite that they chose to limit the well that's true but but they're bringing that dumping petition in and they're obligated to support the petition with evidence you can't you can't follow a dumping petition based on was say this product this investigation covers barat they did not do that they made a conscious choice to limit the scope of subject merchandise to wire up with a diameter of five millimeters up to nine hundred millimeters and that was a conscious i mean they're they're the ones that have to prove dump and material injury well your honor it's common for petitioners to file what right is a very specific product that is subject to s t l specifications and it's common for petitioners to define a scope to include products to include products that are not even though the products certain products that would be covered by the scope might not be actually be manufactured by the us producers  a five point five to eighteen point five is that accurate that is actually and what is that called in the t m it's called the nominal diameter standard nominal standards are five point five up to eighteen  c staff report in one thousand seat report that was relied on in the petition to help to find why rock acknowledged the wire route in diameter is less than the nominal five point five millimeters was commercially available argument that once a petitioner for example sets a range that it's impossible to bring a minor alteration case against that range for example what if here were what we're talking about  point nine eight and that's below five so under your argument there's no way you could bring a petition or a over a minor alteration inquiry well by phone that correct that's not that's not our position our position which is based on the court's precedent we've learned and upon and the plain they would statute is that if a problem my product cannot be subject to a minor alteration or cannot be found to be a minor alteration if it was both unequivocal excluded and was well known in this case we have both factors why robert diameter is less than five point zero zero millimeters is expressly and i put the excluded in the first conscious choice to limit the scope of the subject merchandise to a precise gardener with what evidence can you point to the court where we would find a commercial bill ability meaning sold on the market to sold on the market  four point seven five wire rod in the united states or in the subject countries that would be on the record there is the evidence and we cite the cites are in our briefs that charter rolling was to i'm not aware of any your honor but it doesn't matter even if it's even if it were the case that no us producer was making small diameter wire out at the time of the petition the fact that they knew it was capable of you made demonstrates their knowledge that they were limiting the scope of the subject merchandise to a certain diameter range within tat that seems to me to really reduce to the test that the job training was referring to when he asked this question of you the test being if it's a range there are no minor alterations because the only way this is going to come up this if somebody does in fact produce something that's outside of the range so we know they're capable of producing it and the fact that they're capable of according to your test is enough to mean that range is it you can't build be on the range that seems to be a range answers everything type inquiry is not really what your positions only if there is knowledge i capable of being produced and whether we have that it's going to be a rare case i suppose in which somebody actually does produce something say the four point seven five and you're not going to be in a position to say well of course everybody knew it essentially a null set but your honor the the first one scope definitely establishes that range in that range does show a conscious decision to exclude everything outside that range i mean there it's not as if petitioners are without a remedy what they should have done i brought a new petition against small diameter wire up there's a case for example on live from mexico in which the petitioners first product case against what they call a large diameter line in the outside diameter works if a product is unequivocally excluded and well known it cannot later be the subject of a minor alteration of inquiry well let's get back to the trial court's decision i think i heard you say that it's based number two small smaller diameter wire rod was known and and the trade cord imputed that knowledge to the petitioners and to commerce to can for the trade court to conclude that commerce necessarily was contemplating the specific exclusion of that smaller diameter wire is that a fair reading of the trial court's decision well the trial court just can you first say yes or no is that a fair reading of the trial court's opinion it requires it it had two factors it found both factors and it needed to find both those factors in order to bar commerce from doing a minor alterations inquiry that's a fair reading except that the court did not make any factual findings or impute knowledge it just court basically first said commerces original circumvention to addition as  was unsupported by substantial evidence because congress failed to account for the express exclusion of small diameter wire on and its own commercial availability finding that aubrey may have commerce made the decision went negative and said there is minutes and that's about how much they were over their time i was going to give you two additional minutes you already used so thank you ok i think  lucky have two minutes thank you very much your honor i just have a few very brief points that i would like to make to clarify where we are first of all there is no evidence that us producers were making four point seven five millimeter rockets at the time  investigation moreover there is no evidence that the subject countries that were subject to the investigation in particular mexico were any producers in those countries were making four point seven five millimeter right in the evidence for that is  j one thirty six and ga seventy three to seventy four the one bit of evidence that places the production of four point commercial production of four point seven five millimeter rockets even close to the border is the root of the japanese report that i was talking report that came out after the order was published so it showed that in japan this this rock was being produced commercially but that the report itself came out i think two or three use would essentially reduce minor alterations inquiries only to instances where the scope is ambiguous where there is not a particular range and or where a product was it was not a commercially available now what that would do is that would either merge the minor and so the kind of focus that the trial ford placed upon exclusion is improper in the first instance it is certainly improper as a threshold criteria it's nowhere to be found in the statute it's nowhere to be found alleged that