see good morning my name is geoffrey c lo i'm with the law firm of mayor brown l l c i'm here today with my colleagues in the increase burg on behalf of well been corporation and i will be doing o direct argument for ten minutes and mr bogart can do the revival i got it off in brief this case turns on three critical points first this court reviews focuses in by the court of international trade a no vote and the court four the department of commerce substantial deference to interpret the scope of its anti dumping or provided commerce is interpretation in its scope ruling is reasonable and supported by substantial evidence which it is in this case it must be affirmed second commerce tends to avoid including in use provisions in the scope of board such provisions are difficult to administer and invite efforts by employers to evade th draftees why don't we construe the drafting against the draft or if it has an ambiguity as well your honor in particular with respect to the scope of ideal world there would be no ambiguity and the scopes are anywhere but sometimes that does happen and are you believe there is some ambiguity in this scope but as i was saying number three the third critical point when express in use provision consistently used by commerce when it seeks to include arrest glued certain products on the basis of use very briefly the first sentence of the scope reads in its entirety the products covered by intended to be covered by the scope of this order so when you say to product the need but well pipe a lesson fourteen inches in diameter finished and either finished or unfinished form important in the united states from viable consideration for determining whether a product matches a physical description so as i was saying in rejecting commerce interpretation the c i t never examined the physical description of the covered merchandise in the first sentence of the scope or rather the c i t focused almost entirely on a single eight word phrase in the second sentence of the scope that fitting quote are used to join sections and piping systems in according to the c i d this phrase quote describes these one and only use of the putting subject to the scope of the investigation as so described it amounts to an exclusive use and quote what the c r t c fail to acknowledge under investigation well yes your are up in the petition there was a separate paragraph that set out the physical description which i read at first at the outset and then later on the petition went on to describe various aspects of the cover merchandise and language to that effect was included there but then commerce wrapped it into a single paragraph in order to do the purpose of the second to him judge musgrave noted that the used in piping systems language would be which is a reasonable interpretation of that phrase and two it distinguishes but welding as a type of fastening method from other types of fastening methods which the scope identifies us as threaded bolted or groove but in fact commerce tends to avoid excluding products from the scope of one or on the bases in use because such exclusions are difficult to administer and increase the likelihood of a vacation in the limited instances in which it does the to do that with consistent practice that is recognized is to make that exclusion as clear as possible using terms such as so we are only most notably as we discuss in our brief this court decision an extra involved in or that contain an expressed in use provision to begin while the first part of the extreme scope is very similar to the scope in this case the scope an extreme explicitly stated that it applied only to certain stainless steel p fitting this court sided inclusion of the term certain in extreme as intended to limit the coverage of that scope by contrast the scope here does not contain the word certain by its term this order applies to all that dean says that it is products are used in a structural context but there is no evidence that i'm aware of and i would defer to others for this but as far as i recall there's no evidence that they're actually so for the use in struct expertise the policy underlying the proposition that congress can interpret but not change a scope water who's being protected by the prohibition importers are being protected by that and the domestic industry because once an order is put in place it would violate the principle of being able to rely on well then this is really where my question was going there is a detrimental reliance in requests of this nature so as far as anybody know then when what happened here was keen began importing these products customs immediately interpreted the order as saying this product is covered it meets the physical description and so keen didn't have any kind of  agency that does that when it comes with when somebody has a question such as king so there's there's a certain amount of ambiguity in this eight word phrase it could be interpreted as a mandate which which the c i did but it could also be interpreted as an example of a possible use which is what commerce is in the context of the entire scope of the physical description which unlike an extreme does not allow for any exception and the rest of the sentence which commerce like i said gave mean to as a possible in use and as distinguishing this type of of passing that that from other type commerce is determination its interpretation here was reasonable so there was no as far as you want to save a little mr bogart's time yes or yes your honor that that's all i have and thank you very as was we've today steve of course is also orange richardson now what would prevent to your client mr vectrex from suggesting that they are bringing their pipes there imports in for use as structural members in a scaffold and then later convert them into a natural gas by the well established business practices companies follow for a large number of years the company if you look at some of the background information what in it deals in architectural elements architectural structures does not paid or to the oil industry or to the piping system and but you've import too many and you need to get rid of your your excess inventory and so could you sell them to a natural receive one of those certifications are no significant they don't ask for them they don't file them they don't keep them so be pretty pretty difficult for them to pass it off to an engineer for use in piping systems because they don't have the system and we don't ever i understand the the the records quite clear that the industry has i mean you think that that this expression here the reference to piping systems would be read to exclude uses you know as a pipe for a lawn sprinkler the you know it's never come up i understand but i needed that seems to me to be in even narrow definition of what's covered in those up the way i understand it and the research we've done and the exhibits we put it on the record show pretty a pretty sophisticated and gus real systems hooked up suggestion that the court somehow never looked at the the definition the physical characteristics of subject merchandise versus the structural use merchandise there's no evidence in the record that the court did not examine that no evidence at all secondly the the fact that it was not an issue makes that a far less i'd we submit important factor for the court to consider it just was never an issue that examples of and use restrictions that commerce is inserted into these waters and i have not been able to find any that are as well for lack of a better term and th  and you go to the last page the court says quote i asked for the orders failure to exclude nonverbal settings explicitly to fair call which is a federal circuit phrase extinguished the theory that a product would be covered via the order merely because the order does not go quickly through that so to the extent there is law on that point the law is in our favor the law says you can still have an end use restriction but the owner does not have to say pub pipings use a structural applications are excluded from this or it can be done by the language the pipe for these are used to there was a situation where a certain product was excluded yeah that's a lot of cases but and uses a very particular subset of those cases it's one thing to say that a they're history i think that that the only way you can interpret that is congress made or made a decision that very want to live with the court of international trade decision and they're willing to live with their order that the structure use application takes these five fittings outside of the scope of the order  that the use for structural applications fall within the scope that is the that was what the judges acquired to do it is or substantial evidence is there not once a lower court decided there was no substantial fungible if you have or certificate and you want to put them into a piping system and you have a mill certificate a customer could do that ok but the way congress operates under the system is they take the position that these products coming in are using structural applications to the extent they have a policy the policy years if you think they're being used and piping systems come to me commerce with evidence demonstrating that these structural application type things are being used in the piping system and will take action how about the other way around can't can't  our client my client has been bringing this in for years and suddenly one day custom said oh we think this is covered appliances no it's not so i've been bringing it in it hasn't been it has not treated as being top which right be that the language is a broad statement of fact it's a generalized statement of fact that didn't mean it is a huge limitation you could have said in pike fittings or structural applications and if we had intended  be a limitation by end use we would have said only use why didn't you say or structural limitation because as a general statement of fact it was unnecessary to add that we knew that it was coming in and other forms for other purposes we knew there were other general applications but that doesn't mean that the pipe fittings are not used in piping systems there is no limitation in that language lower court read that limitation in the language and came with read that limitation into the language mr back rick says that the product the king brings in can't be sold for use in piping systems although it in fact is manufactured for us systems because he doesn't and his client does not ask for the mill certifications or certification for answering a s t m standards two hundred two answers to that one there is nothing that stops an end user who's buying his client's product for use in a piping system from obtaining those certifications directly from the mill through e mail or or d h l or whatever secondly it's also the practice among a number of industries buy pipe fittings for use in piping systems to go ahead on their own and test those pipes fittings to ensure that they meet and c n n s tim standards and since king's products would meet th standards they would meet those they would pass those tests response to judge bryson's question we fundamentally disagree with mr backwards characterization of allegheny bradford that is if that case involved physically different merchandise believe it was a beveled product versus an unbearable product that was not an end use case it is not an use case it's a physical differences and as we'll see as judge rayner has pointed out in his discussion with mr backwards the products mccain brings in are physically identical in every respect to buy well fitting subject to this order and they are certified for use in piping systems could have a situation in which a particular product at at the time that the water was first issued was only being used for a single purpose let's something like a compact disc which  compact discs are used to play music and i suppose your argument would be that if the compact discs which are exactly described in the order are later used for other purposes in some instances to load programs on computers and  that the fact that there was a description of the use even without the word normally or predominantly or whatever would not limit the description of the compact disk that would be ou languages contained in the petition which were simply to use new physical description of the product subject to the petition so it's a lack of a diverting to your lack of knowledge of your lack of awareness of other uses doesn't