what is about to like it is a product that is logic or in the absence of like most similar in terms of characteristics and uses with the article subject to investigat imports of these types of products were not subject to the instant anti dumping or accountability to the investigation so we happened to be arguing about it like a product that sat outside the scope of the investigative product w and they say any consideration of products beyond the scope of what's under investigation is simply immaterial to the domestic like product that now sells so what they've done is they've they've confined the domestic like did not make the secondary necessary comparison which is to say that the domestic like product is that which is like what is subject to the investigation it is not simply what is subject investigation it  because they they they've never bothered to explain how the narrow and precise definition that they used in this particular case was different from the previous cases was different from subsequent cases was different from thirty five years was different and it's our belief they did that and and not considering the the totality of the domestic life product in the st incident so it is for example that if if they had filed the petition on red balloons we had argued that while the industry here should be all balloons not just simply red balloons their position is they don't need to consider that because that is immaterial because yellow balloons are outside of scope and our position is now in the st instance you look at what is actually being flushed to be about it what's the scope of the petition next step is to determine in which industry does this fit is there such an industry as red balloons or is it the looms in our case is there such an industry as as tool steel or is there such an industry as carbon and alloy steel we raised this question because previously the answer to it isn't and that's our position that that those cases are not dispositive but they certainly are informed that we defer to agencies expertise steel is an agent is in this tree that  absolutely and that and that steel is an industry that they had analyzed for the past thirty five years they had written concluded that it is certainly informative and helpful and meaningful to the analysis because otherwise you wind up where we are today we have a continuing right now before the international trade commission at least three completely separate definitions of an industry comprised of come to life like one definition all of those three cases right now are opened before the trade commission so instead of having one common definition of an industry of an industry that i should say the international trade commission has analyzed deeply and continuously for thirty five years and reach them form judgments about where the parameters of those industries are yet continues to carry on case after case with different definitions of industry which sets the fundamental it was absolutely not our fundamental argument at the hearing in the presentation and that i simply did it to myself so i'm very familiar with it was tool steel is much like status to that was that was principal our argument so you need to consider us as part of that group do what you do with this larger stainless steel family because we are even more different than carbon steel from stanley steel that was that was the essence of our they've never did that they never looked and said well we have we're we're taking staveley steel and we've moved it from this investigation we have not found it to be part of this and in our position objection it's limited to that product subject to investigation that that was the limiting factor it never looked at holistically st what you noted other words here saying that they should just start looking out nobody ever argued that stainless steel was a like product i'm just wondering like in the course of litigation for example you know usually when a court is trying to make a determination it's probably the same with the agency they're looking at  that that is when we went into the accept of thirty five year history of analysis showing that state must deal had been historically suffered like rocket all these products where these lines were in the steel and here is that council is focusing on products that were not part of that starting point so they're focusing on these products that were excluded from the scope like that in the steel by saying let's assume gleeks that's one of the products explicitly excluded correct your honor and s you'll see hitachi's before the commission of which there yes they're arguing that cold steel is similar to stainless steel in other products but they're also emphasizing differences between stainless steel is excluded products and the other types of steel plate that were subject to co meaning the carbon still played in our way still plays there are thousands of permutations of what's going on with commerce have an obligation to independently determine what domestically product is the commission and yes your honor has never been a source of contention certainly the commission does independently define the definition of a product but i think in most he his argument is that instead starting by just deeming it coextensive not even an issue raised by parties the commission on its own acknowledges this is the st time it had examined these products together and under tickets on analysis it only took analysis for a different product as well x seventy plates using oil and gas transmissions and then in the final product which is life or an absence of like most similar characteristics and uses with the article subject investigation and that article subject investigation that is congress the scope and the commission starting point is always congress's scope and while it doesn't really rely parties to raise issues about other products that may come up as it did in the preliminary determinations here looking at carbon in our we still played it does actively solicit there and put and hear parties raise two issues the x seventy played in tool steel and the commission no party asked us to define like product more broadly in commerce its scope and that's why there is no analysis of these other products what about the argument  agency practice well that mischaracterizes like product if notions these determinations are not binding precedence they are factual determinations based on the record before the commission and it's necessary the commission always basically product information on the record for it not  prior definition because product characteristics market characteristics they're not static these will change over time and that was the case in these terminations when the commission looked at carbon steel plate and i was still played it noticed that the characteristics of these products that converged over time and swell and past investigations the commission had looked at one or the other and found that there were not clear dividing lines between these products and it included both in the single definition of domestic by product and again as the court of international trade found the product like or similar characteristics and uses also different for the criteria that the commission uses to define each of these products there's some of her laugh but there's also differences and because of the differences in statute terminology and create syria different conclusions different definitions of the expected and reasonable and also with the prior anti doping kind of really do deeper scenes i think a key point is that each of these had a different starting point the scope was different it did not include the products or tear carbon steel plate i was still played in tool steel and the hitachi themselves acknowledged various times in their arguments of the underlying investigations were the st time that the commission had looked to this group you know products so there could not have been a prior agency practice for them to rely on the court of a also confront us i think also informed if a touchy sighting to s k o this court's holding in that to support its reliance and safeguards investigations but the holding in that case was that the same terms under the same statute should have the same meaning and of course here result finally hitachi's point that the commission lacks efficient data for production facilities processes and employees investigations it issued the commission's investigation this issue was proper we issued questionnaires to  definition absolutely matter council st touch is raised this raised the analogy of a domestic like product being defined as or excuse me to scope an investigation being defined as red balloons and whether the industry itself should be defined as all balloons the court below very astutely noted on appendix thirty six dollars plaintiffs appeared to assert that there was a substantial substantial record evidence for the finding that tool steel constituted a separate like product but not the finding that tool steel is part of  extensive with the scope of the investigation that includes tool steel but does not include the seven excluded groups of cock the like place and use of of state was still within that category that's just one extra one last point if i if i my within the act i don't think statute where it where does this leave us where are we today at the trade commission currently there are three completely different definitions of the of carbon flake of steel plates used by the trade commission completely different some clued alloy some glue don't some include various products some and some have different exclusions how can those three different definitions of an industry co exist simultaneously in cases currently proceeding for the commission it is because the scope was different in each of those three cases and this is just one example of scope being unilaterally