some confusion but that what the i t c did in its investigation it defined three general products that it wanted both the the domestic industry and the importers to report prices for and in terms of defining the characteristics of the product of reference that max line ten product however as the i c c to find it and as it was described there's no reference in there to aluminum what it said was max line ten accident additions or we want  that resco includes any aluminum that product and therefore there's most importantly there would have been no indication to any of the parties responding to that questionnaire that they were to include products in that pric the make or it's that it says in the disjunctive or up to i believe it's ninety percent magnesium which would of course mean no more than ten percent of them so i think what and what the manual is referring to is that they can have as much as forty to fifty percent or the little as as something which would have ninety percent magnesium so we believe that our product would win that definition you argued th brakes and then it goes on to tell you which magnesium carbon brakes are covered in those the seventy percent magnesium cetera the scope issues that this presents is the question of ok what if you have a product that is not making  correct but a mac correct but still has seventy percent magnesium and that is this would be a much tougher case but for the fact that the commerce department when reviewing the petition put its finger exactly on this problem  are not within the scope please please and they went and they figure it's clear he has they did but what they didn't say they did what they didn't say is well it's clear because it's seventy percent magnesium because of course seventy percent magn i t c staff conference when it said substantially the same thing which again that's what i'm saying don't you know it's a little bit off maybe but but it's important understand what's going on here particularly with respect to the i t c and from the i t c investigation that resco was very concerned about limiting the scope of the like product to only m c p s and drawing a very sharp distinction between m c v's on the one hand and everything else and so i think it's in that context and they refer to all of these terms by their trade names and you know when the commerce power came to them and said please tell us how is your scope description excluding mac bricks that would have been the perfect time for them to have said well it excludes the some trace elements of a long and at what point do you have enough money by standard definition to reach reach a mack break well i think the critical threshold is where there's sufficient alumina to make spin out to make spin and that isn't that a functional definition rather than a structural one yes i mean i mean it i s true one of the problems in this case and this is something that we hear about time is that unlike steel products where you can go and you can pull out the s t m book and you can read exactly what say to find stainless steel versus  steel there isn't a single source like that it's a matter of practice in the industry it's a matter of the term of art and so i can't point you to some authoritative source and say you know when and when it crosses four point two percent it's now a mac brick and what about the statement in the e carbon bricks and so isn't that a expressed disclaimer that the investigation does not cover is not based on aluminum content that's based solely on the magnesium and the carbon content i don't think they are because i don't think you can square that with the statement just a few pages later in the petition where they describe max tricks as not part of the like product it's not part of a like product by definition can't whether a particular product is properly understood to be a mac reg given the way that term was used during the investigation and we believe the record is very strong and i don't think anybody has said to the contrary th bastion product qualifies as a mac break is that term is used in the industry but but if there are factual issues that have to be resolved about whether a particular product falls within that properly falls within that moniker because that means the fact that  look with me as the petition itself it says i can write it up here really quickly that covered by this petition consist of certain math breaks now that means that there are things outside the category of mac bricks right yes your what we're looking at that brooks that are based primarily on magnesium getting to seventy percent criteria later and yet those fitting within the seventy percent criteria only some of them are covered because certain are not which are the ones that are not  there's certain breaks that meet the seventy percent magnesium category the fall within the petition now if you have certain that means there are some that do not which  are and we're not talking about the ones specifically excluded because those are specifically excluded so what does certain mean is what i'm asking you it's not altogether clear what petitioners meant well but isn't it clear because the resco get asked directly by the i t c by the way do you mean mac bricks and they say those operate very differently so are we getting a pretty clear picture that this certain doesn't apply to the mac bricks because resco themselves says no those are different meant was even selling macs at the time it wasn't like there was a lack of notice here you know as it was pretty clear could one make a pretty good argument that the certain are the mac bricks outside that sir will but it's but your honor the certain has to be read in within the context of what follows which is that the specifications  looking for what is the one that we know what is the max bricks those are covered what is it we are it's not altogether clear what other types of mass so there was let's let's assume that there's confusion at that asked to clarify for example there was discussion about the expressed exclusion related to know they say that magnesia alumina graphite bricks and the subject merchandise do not have they don't have the same physical characteristics users are not perceived by proof by producers of purchasers as being substituted and or easily differentiate by price i mean the responses from the british no was clear it was unknown as to this is what we are want to be investigated it's not clear your honor if we look at the petition and responses and petition because the responses on the petition create ambiguity as to what petition was referring to for example again the investigation dump and do the investigation and this is not the burden of the but to show to be clear as to what they're asking congress to investigate in order to assist in the like product determination and the  such and similar merchandise determination by comers but petitioners did provide an explanation that is relevant again initially in the proposed there was an express exclusion then petitioners came back and said in a talking about says the scope of our petition focuses only on and c b notice there is no reference to mac bricks there instead there is an emphasis on related to the luminous allow conic several types of bricks was not necessary but issues actually told congress those types of bricks would never be considered a subset of magnesium carbon bricks the takeaway from that is that any any type of brick that would be considered a subset such as venomous products would be considered in scope and expressly state that in the records as to why they did not require an exclusion and something that i that's a good question from a commerce i see that i was not clear in my in my scope language and let me make clear that mac bridge or also included now do you think if that were to happen and congress would have said ok we're going to investigate that the dumping order would look the same way it does today we wonder if if they had said that they would have had to provide technical specifications because only technical specifications help us understand what this undefined label i agree but at what they did say with respect to the mc be very technical the technical specifications the respect of the m c b's and you're saying that the bridge would have been included or within the scope that they congress would have had to provide a technical specification for that i'm asking you would not change the face of the dumping order of course you want that so so you're asking must if we adopt position we're going to have to rewrite the dumping or no your honor based on remember that said men and independent is conceitedness in before commerce there is no industry standard as to what america break it but we have expressed terms in it order that tell us the parameters here and those parameters don't preclude fed match progress from being in scope based on the magnesium chemical component and based on the carbon chemical component which are within range so in asportation or said we we are going we exclude the obvious aluminum carbon bricks because they would never be deemed a subset us as a court an appellate court should we make sure that the take home moral of this particular case should be that if you're petitioner and you're asked by commerce is is between a's included is the included conceivably and encompass the entire universe of relevant products and and in this case it is on all fours with that it's not a petition or to invision products do not provide the same performance there's ample evidence in the record that in macy's are in the c v s there's in congress went through that again lots of evidence showing that folks prefer to after going through and answering the way some of these people the way lawyers answer questions and they end up by saying we don't see any reason to change the the focused on the slide line and the areas that have the highest wear and that that's entirely consistent with the with the answer the rest go gave to the question about when they were asked about how does how does this work with mac bricks and  i think it's very important to focus on the question commerce asked because it informs the answer ask again the question congress asked as we see this language on page ten how does that excludes congress word excludes these products and they said how does your still flying which operate to exclude those products if there were a couple of different response a recipe to get one of the good so wait a minute we didn't mean to exclude those products you're wrong those are included they didn't say that in fact they said they  seem to confirm it and i agree it's a little delphic but they said you know our position focuses only on m c b those other products are different the other thing that we like and we like what you have and we like what we have and the question then is ok how can you just how can you square those two statements and the only way to square that i would submit is to say because because what we have said seventy percent magnesium that's their point the way you square them is to understand that when they use the term m c with seventy percent magnesia does that mean mac bricks with seventy percent magnesium and that is the question congress asked i mean that is exactly the question asked and they didn't give that answer they didn't give the answer that mr  that there like product was not including mac bricks because the problem with the low alumina hyland the distinction is that my work fine for their scope but how does that work at the i t c when you're doing like products like the i t c very well could have said well you know what