negligible imports from a country of merchandise corresponding to a domestic white product identified by the commission are negligible if such imports account for less than three percent of the volume of such merchandise import big congress department in the international trade commission have separate responsibilities one determines injury one determines whether they're up to her current they determine the scope of the subject march unless the congress or its alright oh yeah but for origin it doesn't matter that they contain cells that are taiwanese in origin it doesn't matter that they were included as subject merchandise which is what the commerce department to term because the negligibility provision applies t so we now have a determination that the solar panels are i will use an origin how can we turn around and treat them as mexican origin for purposes of this not the people because the language of the statute doesn't refer to what the departments scope determination so what we're suggesting is the determination by the commerce department that this is included in the case expanding the geographic reach of the decision doesn't believe doesn't remove or  we would have to say that you would have to say that they are imported from mexico which they are and that that that's undisputed they are imported from mexico in and they're not import they're not imposing these antidumping duties just on the cells that originate in reference the commerce department determination at all and that makes sense because the purpose of the negligibility provision is to limit the geographic reach of dumping anti doping measures to countries where it matters so if the imports are negligible it makes perfect sense not to have an order on products from mexico if the amount of those imports are negligible no matter how that mexico was added to the investigation so in other words there could be imports from taiwan that on the models produced not on the cells not on the value of the cells that are incorporated they're imposing the duties on the total value of the modules produced in the cells as the record shows only account for about fifty percent of the value of the merchandise so they're not imposing this just on the time when he sells if they did we would have a different case that would be a case of trade shut in everything then but my hypothetical still holds they could set the cells to any country they wish and as long as the imports from a country are no one to amount when they're small there's your bottle of presumption that says these are not injurious that's what the commission has directed defined by congress that these imports are not injurious of those should be excluded that's the situation we have here we have a very small amounts of solar modules produced in mexico imported from mexico and they're being a set they're being included in scope at this that you've said in those circumstances where the amount is so small  really your objection and that's what's involved in the other case that is an objection that is involved in the case but we also object to the fact that there that the cop at the commission has refused to do what the statute directs it to do to make a determination include within the scope of imports that come through other countries that happens all the time i don't think it's come up in this context because come up for judicial review in this way there have been very few cases where they've expanded the scope in this matter they've so i want to make it clear just in in conclusion this what we're asking the court to do is not to overturn the commerce department germination here we're asking the court to do is to require the ca the commission to make the determination the congress directed to make the language is clear now they are they've said oh well you got to read them and then so already you're thinking well ok so now we're looking for some penumbral rights or something that's going to help us understand th pending before the court of international trade involving the scope issues and in fact as you probably recognize there is in fact the c i t has issued an opinion sixteen fifty nine union regarding some of those issue commission is not a party to that case so i don't feel comfortable discussing that opinion the court has remained it's certain aspects of congress determination and not with respect to that issue my colleagues mr right bill i'm sure are going to certainly  congress were to ultimately lose its appeal with respect to the issue of whether or not the imports were in fact mexican or taiwanese at that point presumably this court would have already issued its decision  the determination in the other proceeding that these are our own needs rather met them no your honor because really they are two separate increase on the one hand commerce department does make it was congress conclusion that these imports were in fact subject merchandise from taiwan their two places on where congress made this decision first in its scope determination and second we also now have a what happen negligible in forth on its own however right so your answer to judge strikes earlier question was yes not no it in terms of if we were to rule in your favor would have to be premised on the assumption that the scope determination was an accurate or supportable one at this point there's no indication that that that that is the case and based on the information that is on the commission's record the commission made a decision under the statute the specifically section sixteen seventy one d b one and section six hundred seventy three d p one both of which state in relevant part that the commission shall make a final determination whether an industry in the united states is materially injured by re of imports of the merchandise with respect to which the administering authority has made an affirmative determination if the determining if the commission chairman said in parts of the subject merchandise or negligible the investigation shall be terminated mr horgan also ignores the statutory definition of subject merchandise which is in one thousand u s c section six hundred seventy seven twenty five subject merchandise is defined as the class or kind of merchandise that is within the scope in a bit  investigation so here congress clearly made the determination that the imports were septic merchandise from taiwan and i referenced earlier congress's federal register notice which is seventy ninth a register seventy nine six point that that the commission had to defer to congress spoke determination indeed the federal circuit itself has already looked at the statutory provisions in the context of the domestic like product and the federal circuit has agreed that the commission must defer to congress definition of the scope of subject merchandise that within the the scope as an important work and i guess what's your response to your friends are given that in fact they you would be making the circumvention in in front of that for the international trade so my my question isn't so much whether or not it's up to the commission to make these kinds of decisions my question is is challenging the logic of the legal the logic of the legal position position you're taking would result in making the anti circumvention provisions completely redundant or unnecessary wouldn't that mean that your legal position is is at least somewhat suspect i understand the logic of your question your honor but i would disagree that this interpretation would in fact render those provisions meaningless  and in this case the facts of this case illustrate that any circumvention provisions don't always solve problems there was a prior case involving imports from china that covered certain cells and certain m even before that order was put into place edition imports started coming into the united states among them the the modules in question there were other modules coming in with cells made in taiwan from taiwan itself these started coming into the united states at that point in time you should write a second round of petitions to address the injury from those imports those imports would not have been covered from the scope in the in the in the  the concern i i think that you may be trying to reach is whether or not the scope can include both an unfinished and a finished component to it that case this case in a number of other cases also include bot an unfinished and a finished component that can't involve cells and modules models or some hold from cells that are strong together laminated and then put in a frame and to the extent that commerce made the determination that that cell is driving country of origin that was underpinning its determination that this subject merchandise from taiwan included cells that were shipped to mexico assembled into modules the finished product and then shipped to the united states and the commission was obligated under the statute and this court's prior case law to defer to congress determination also found to be significant circumvention relates to minor alteration in a third country but not of address this issue that would have so little role would have taken the much less expensive route of pursuing circumvent while and the commission will have to make new negligibility findings and those could be appealed throughout the process your job is simply to rule on whether these subject imports were negligible or not at all in italy it was to be careful at negligibility of imports from a country but then the provision that miss alice also pointed out clearly says if the commission determines that imports of the subject merchandise are negligible the investigation shall be terminated the subject merchandise included syria's imports they were next in modules made from taiwanese sounds they were subject imports they were not negligible and when you read those two statutory provisions together commission did exactly what it was required to do under the statute it examined i want to use imports that is imports of taiwanese solar cells regardless of where they're made into modules or p m s including mexico and quite origin file and use case they said if you had cells and ship them to mexico and use of to create modules that those were taiwanese origin but if you took the same cells and you ship them to china and use them to make modules that those modules were chinese origin so that's the issue that is now been happy to help you and the other seeing nothing well i'm just suggesting that the origin issue is very much at stake in that case but that's not this case in this case it's whether the commission has its own independent obligation to make an extra billion terminations as prescribed by congress and the plain language of the statute says it says in products from mexico but that's not the case the negative really provision only applies to subject margin so it wasn't subject merchandise none of us would be here and it doesn't it can apply to subsets of stuff that of subject merchandise the subject merchandising clues products from a dozen countries all the countries named in a petition in this case china and taiwan that doesn't mean it doesn't make separate negligibility determination as to china and as to taiwan it did in this case so the fact that these subject defined by the country and also by the like product so the notion that they have propagated here and that the court below prove that they have to be the same that subject merchandise you have to make a determination of negligibility as to subject merchandise is not true they make it has to subsets of subject merchant defined by geography and defined by the kind of product that's the way that major military provision is applied and that's the way it needs to be a fly here imports from a country of mexico or