[00:00:34] Speaker 07:
Our next case for argument is 2018-2335 Chang Tzu flooring versus United States.

[00:01:02] Speaker 07:
Please bring them in again.

[00:01:03] Speaker 07:
Please proceed.

[00:01:04] Speaker 06:
Yes, this is a bit of a complex case with an appeal and a cross-appeal.

[00:01:09] Speaker 06:
So for the five separate companies I represent that will remain in the order, I have five minutes for my presentation and they're going to run their time consecutively, so I have to stop at ten minutes essentially.

[00:01:21] Speaker 06:
So our appellants after all these eight years of litigation have been assigned de minimis margins with no evidence of dumping whatsoever, yet not excluded from the order.

[00:01:31] Speaker 06:
And we have submitted in our briefs that that violates Chevron 1 and Chevron 2.

[00:01:36] Speaker 06:
And so I'd like to just briefly explain why it violates Chevron 1.

[00:01:40] Speaker 06:
This court previously found in the earlier panel decision, relying substantially on Albemarle, that the statutory scheme is representative.

[00:01:49] Speaker 06:
that once you depart from the mandate to review each respondent individually, you're in a different territory where the mandatory respondents stand in the shoes of all the non-mandatory cooperating respondents.

[00:02:01] Speaker 06:
And so we believe that the statutory scheme is clear and does not contemplate the third path that the government has taken in this fifth remand that was upheld by the lower court.

[00:02:12] Speaker 06:
And the statute would have had multiple opportunities to make clear that there was this new second class of so-called citizens that never get exclusion from an order.

[00:02:20] Speaker 06:
It could have been in the main provision of the statute, the all others provision of the statute, the sampling provision of the statute, or the voluntary respondent provisions of the statute to say, oh, by the way, you don't get out.

[00:02:31] Speaker 07:
So just to be clear, if you think this falls under Chevron step one,

[00:02:34] Speaker 07:
Then you're saying the statute is neither ambiguous nor silent.

[00:02:39] Speaker 07:
So what is the statutory provision that you believe absolutely gives your clients an out from under the anti-dumping duty order?

[00:02:49] Speaker 06:
Under Chevron 1.

[00:02:51] Speaker 07:
Yes, you're saying it.

[00:02:53] Speaker 07:
Chevron 1 gives you a win, right?

[00:02:55] Speaker 07:
So what is the precise statutory section that you think is neither ambiguous or silent and absolutely gives your clients

[00:03:04] Speaker 07:
from under the anti-dumping duty order.

[00:03:07] Speaker 06:
Well, it's the effect of final determination.

[00:03:10] Speaker 07:
No, which statutory section?

[00:03:11] Speaker 06:
Tell me what number.

[00:03:12] Speaker 06:
1673, small d, parens small c. Hold on, 1673.

[00:03:17] Speaker 06:
Small d, parens c, one, parens capital b, small i. Oh boy, that's too many little things.

[00:03:26] Speaker 07:
Hold on.

[00:03:26] Speaker 07:
So I'm at 1673d.

[00:03:30] Speaker 06:
C. Now go to section c. Yes, d, then parens c.

[00:03:35] Speaker 07:
C Effective Final Determinations, that's C. Okay, then now what?

[00:03:40] Speaker 06:
It shall determine the estimated weighted average margin for each exporter individually investigated.

[00:03:44] Speaker 07:
But no, I don't see where it shall determine is.

[00:03:45] Speaker 07:
I'm at C. Where do I go after C?

[00:03:47] Speaker 06:
And then paren 1, paren capital B, paren small i.

[00:03:54] Speaker 07:
All right.

[00:03:57] Speaker 06:
The administrative authority shall that... So it's basically first saying that every producer should be individually investigated and then says shall determine in accordance with paragraph five the estimated all others rate for exporters not individually investigated.

[00:04:14] Speaker 06:
When read together, it has to be read together with the sampling provision.

[00:04:21] Speaker 06:
You can't split this apart.

[00:04:23] Speaker 07:
I don't see where this says anything at all about an anti-dumping duty order and you not continuing to be subject to it.

[00:04:32] Speaker 06:
That's why I'm saying that our position is that the court has to read these various provisions together.

[00:04:40] Speaker 06:
that when the sampling provision contemplates that the all others respondents will their their outcome will be determined by the sample by the sample selected by the commerce department because otherwise this the application just to be clear your argument is leaving me completely without any sort of firm conviction that you're right under chevron step one because you're not able to articulate

[00:05:05] Speaker 07:
precisely where the statute brings it all together.

[00:05:08] Speaker 07:
You're sort of amorphously using your hands a lot, which is not good for a Chevron step one argument.

[00:05:13] Speaker 07:
So why don't you go to whatever your Chevron step two argument is, because I don't see in the statute where Congress has been neither ambiguous nor silent in your favor on the question of whether you get out from under the anti-dumping duty order.

[00:05:27] Speaker 07:
So go to whatever your next argument is.

[00:05:30] Speaker 06:
Well, and this is addressed at page 24 of our brief.

[00:05:35] Speaker 06:
If there is a gap to fill, the Congress has given commerce the authority to fill it, unless the way they filled the gap is arbitrary, capricious, or manifestly contrary to the statute.

[00:05:46] Speaker 06:
So here you have a situation where the government has found no evidence whatsoever that all other companies were dumping, yet semi-permanently applied an anti-dumping order to them.

[00:05:56] Speaker 06:
And so we would argue that that is arbitrary, capricious and manifestly contrary to the statute.

[00:06:02] Speaker 06:
That essentially the only link between their permanent application of the dumping order to them is the Commerce Department's discretionary allocation of its resources.

[00:06:14] Speaker 06:
That it decided to spend resources reviewing other mandatory respondents in other cases rather than more mandatory respondents in this case.

[00:06:20] Speaker 07:
So you wanted them to review you individually?

[00:06:23] Speaker 06:
Well, the five plaintiffs in this case, and now I'm under my 10 minutes, did not request individual review initially, but in the course of the third and fourth remands, we offered a tremendous amount of information to the government.

[00:06:36] Speaker 06:
And the government said, no, we have to do full review or nothing, but they never said, because there's a regulation that doesn't let you out if we don't do full review.

[00:06:45] Speaker 06:
OK.

[00:06:46] Speaker 07:
OK, do you want to save the rest of your time?

[00:06:47] Speaker 06:
Yes.

[00:06:48] Speaker 06:
I have three minutes for rebuttal, but I also have a cross of two minutes.

[00:06:53] Speaker 03:
I'm on behalf of Petitioners, the Coalition for American Hardwood Parity.

[00:07:11] Speaker 03:
So we're the petitioners in the case.

[00:07:16] Speaker 03:
So may it please the Court?

[00:07:19] Speaker 04:
You want everybody included under the order to the maximum extent.

[00:07:22] Speaker 03:
Exactly.

[00:07:23] Speaker 03:
So notwithstanding the arguments you heard, the Court of International Trade correctly upheld the Commerce Department's decision not to revoke the orders against the appellants who received a 0% margin on remand but never sought voluntary respondent status.

[00:07:41] Speaker 03:
However, we also maintain that the Court

[00:07:46] Speaker 03:
incorrectly ordered commerce to permanently exclude voluntary applicants that were eventually assigned a zero percent margin on remit.

[00:07:57] Speaker 07:
Can you pause for just one second?

[00:07:58] Speaker 07:
I'm sorry.

[00:07:59] Speaker 07:
How are you on... First off, why do you have 15 minutes?

[00:08:01] Speaker 07:
Pause the time.

[00:08:02] Speaker 07:
Why do you have 15 minutes?

[00:08:04] Speaker 07:
And secondly, how are you on the same side as him?

[00:08:07] Speaker 03:
I don't understand.

[00:08:08] Speaker 07:
I don't have 15 minutes.

[00:08:11] Speaker 07:
He is the appellant.

[00:08:12] Speaker 07:
As the appellant, he gets 15 minutes of time.

[00:08:15] Speaker 07:
So who are you and why do you get this time?

[00:08:17] Speaker 07:
You're the petitioner.

[00:08:18] Speaker 05:
We are the petitioners, but also the cross-appellants.

[00:08:26] Speaker 02:
You're cross-appellants.

[00:08:33] Speaker 02:
You two guys are against each other, right?

[00:08:34] Speaker 02:
Correct.

[00:08:35] Speaker 02:
And you're sitting right next to each other.

[00:08:35] Speaker 02:
Correct.

[00:08:36] Speaker 02:
No, they're not.

[00:08:36] Speaker 02:
It was a separate appeal.

[00:08:37] Speaker 07:
So we have our appeal.

[00:08:37] Speaker 07:
I got one blue brief.

[00:08:38] Speaker 07:
I'm confused.

[00:08:40] Speaker 07:
And why do you have 15 minutes?

[00:08:42] Speaker 07:
I need some clarification.

[00:08:45] Speaker 03:
Sure, Your Honor, we don't have 15 minutes as petitioners, but we are split because we challenged the lower court's ruling just as the appellants did.

[00:09:00] Speaker 03:
We present those arguments initially.

[00:09:05] Speaker 07:
You're not a blue brief, you're what, a yellow brief, a red brief, but what are you?

[00:09:09] Speaker 07:
Where's your brief?

[00:09:11] Speaker 03:
Our brief is

[00:09:23] Speaker 03:
Our brief is the opening and response brief of defendant and cross-appellant coalition.

[00:09:37] Speaker ?:
You're one of the two red briefs here.

[00:09:38] Speaker 05:
Correct.

[00:09:38] Speaker 05:
I've never seen a red brief guy sit on this side of the podium.

[00:09:43] Speaker 03:
Because we are an appellant, that was our understanding of the way the time would be split.

[00:09:50] Speaker 03:
I apologize, Your Honor, but we did work this out in advance.

[00:10:08] Speaker 07:
Any advice on how to proceed?

[00:10:12] Speaker 07:
Alright, and you're arguing which position again?

[00:10:16] Speaker 07:
You're saying everybody should be put under the order?

[00:10:18] Speaker 05:
Correct.

[00:10:19] Speaker 07:
You're saying nobody should get out, not even the voluntary respondents?

[00:10:21] Speaker 05:
That's correct.

[00:10:22] Speaker 05:
And you're not defending any aspect of the trade court's decision?

[00:10:27] Speaker 03:
No, we've given our time to the government to defend those aspects.

[00:10:33] Speaker 03:
So we did in our

[00:10:36] Speaker 03:
Our brief presented the affirmative arguments.

[00:10:40] Speaker 03:
The government will defend what the decision it made allowed.

[00:10:48] Speaker 05:
Sounds like those two people split 15 minutes.

[00:10:50] Speaker 07:
So put the clock... Okay, I'm just going to let you go and I'll cut you off when I feel like I need to, which means you have no clue when that's coming, so this is the fear that you're going to live under.

[00:11:01] Speaker 07:
Go ahead.

[00:11:02] Speaker 03:
I understand.

[00:11:03] Speaker 03:
So, Commerce correctly concluded that according to the plain language of the statute, exclusion from the dumping order does not apply to any separate rate respondents that have a 0% margin.

[00:11:20] Speaker 04:
So there is no statutory... And just to be clear so I can look at the sum total of what Commerce said about this, should I be looking at essentially the page 469 of the appendix?

[00:11:35] Speaker 00:
Is that...?

[00:11:35] Speaker 04:
There's a lot of discussion about in general the separate rate

[00:11:40] Speaker 04:
People are not going to be excluded, but is this the only page where commerce talks about the subset of the separate rate people who wanted but were denied individual investigation?

[00:11:54] Speaker 03:
The fifth remand results, yes.

[00:11:57] Speaker 04:
But what's the specific page?

[00:11:58] Speaker 04:
Is this A469?

[00:12:05] Speaker 04:
which I guess is page 24 of the fifth remand results, if I've got... July 21st, commerce determination.

[00:12:18] Speaker 03:
Yes, that's correct.

[00:12:19] Speaker 03:
Starting at 469, yes.

[00:12:22] Speaker 04:
Starting at... I mean, it ends not too soon after that too, doesn't it?

[00:12:29] Speaker 03:
And then, of course, the Court of International Trade's decision as well.

[00:12:32] Speaker 04:
So there isn't a set... Your understanding is that we are reviewing the commerce decision in the same way that the Court of International Trade was reviewing the commerce decision.

[00:12:50] Speaker ?:
Correct.

[00:12:51] Speaker 04:
Your Honor.

[00:12:51] Speaker 04:
So the commerce, the Court of International Trade said

[00:12:57] Speaker 04:
there's something very strange about treating the would-be individually investigated companies the same as the ones that didn't even volunteer.

[00:13:10] Speaker 04:
And at least in thinking about that as a matter of did commerce have a good reason for treating them the same, I would have to look at this page to find the good reason.

[00:13:26] Speaker 03:
Well, yes, and you can also look at the statutory scheme, and so I'd like to address that.

[00:13:32] Speaker 03:
Judge Moore, you asked whether this is a Chevron 1 or a Chevron 2 argument, and in our view, it is both.

[00:13:39] Speaker 03:
And so the Chevron 1 argument is to point out that there is a defined statutory term for weighted average dumping margin.

[00:13:49] Speaker 03:
That is 19 USC 1677 35 B in the definitional section defines the term weighted average dumping margin as the aggregate dumping margin determined for a specific exporter.

[00:14:06] Speaker 03:
So a weighted average dumping margin is only calculated for a specific exporter or producer, not for voluntary respondents, not for separate rate respondents.

[00:14:18] Speaker 03:
So based on that,

[00:14:21] Speaker 03:
The statutory scheme treats all separate rate respondents the same.

[00:14:25] Speaker 03:
So once Commerce identifies that a Chinese company is a separate rate respondent, it can receive a 0% margin, but it cannot be permanently excluded from an anti-dumping order.

[00:14:38] Speaker 03:
So Commerce therefore properly concluded under Chevron 1 that the plain language of the statute... So where is the statutory provision that talks about

[00:14:48] Speaker 04:
Exclusion from an anti-dumping duty order.

[00:14:52] Speaker 04:
I must say, I don't think I could find one.

[00:14:56] Speaker 04:
Well, there is... There's a provision about exclude from a determination.

[00:15:03] Speaker 03:
The exclusions... Well, there's a reference to de minimis dumping margins as well.

[00:15:10] Speaker 04:
Ignore them in the course of making a determination.

[00:15:14] Speaker 04:
Correct.

[00:15:15] Speaker 04:
Isn't this whole idea of excluding from the order, which is to say excluding them from being subject to administrative reviews, suspension of liquidation, cash deposits and the requirement to submit information.

[00:15:30] Speaker 04:
My understanding, you can correct me if I'm wrong, those are the three consequences we're talking about for an exporter producer whose goods are coming into the United States

[00:15:43] Speaker 04:
but that it has been determined, however, to be subject to a zero rate, that that's the consequence we're talking about under the heading of exclude from the order.

[00:15:59] Speaker 03:
I believe that's correct, Your Honor, yes.

[00:16:01] Speaker 04:
And I'm not quite sure you're making a statutory argument that

[00:16:07] Speaker 04:
I'm not quite sure where the statutory argument comes from without a statute that even talks about the concept of excluding from an order.

[00:16:16] Speaker 03:
Well, it's because, again, there's a calculation of a weighted average dumping margin, but it's only for specific exporters or producers, which means, in this case, the three companies that were individually examined,

[00:16:32] Speaker 03:
Therefore, those are the three to whom all of those potential consequences apply, including exclusion from the order.

[00:16:41] Speaker 03:
In other words, there has to be a weighted average dumping margin calculated in order for those other consequences to apply.

[00:16:46] Speaker 07:
Okay, so you've got the same hand thing going as the first guy, and I'm not buying your chevron one argument either.

[00:16:51] Speaker 07:
The hand is the tell.

[00:16:54] Speaker 07:
I don't know if you play poker, but when you have to wave when you're doing a Chevron 1 argument, it's not in the statute.

[00:16:59] Speaker 07:
So move on to whatever Chevron 2 argument you have for why these people ought to be in there.

[00:17:04] Speaker 03:
Sure.

[00:17:05] Speaker 03:
Under Chevron 2, you look at commerce's regulations which limit the eligibility for exclusion from an order to companies that have been individually investigated.

[00:17:15] Speaker 03:
So that is 19 CFR section 351.204e.

[00:17:21] Speaker 03:
And it specifically refers to exclusion applies to an exporter or producer for which the secretary determines an individual weighted average dumping margin.

[00:17:33] Speaker 04:
So that says, here are some people we're going to exclude.

[00:17:38] Speaker 04:
Where does it say, except for those people, everybody's in?

[00:17:42] Speaker 03:
So there's a whole separate provision then for determining the all others rate.

[00:17:54] Speaker 03:
That is statutory provision for determining the rate that would apply to all the other parties, which is 1673

[00:18:03] Speaker 03:
So, but the exclusion provision is separate from the provisions for the weighted average dumping margins of the other parties, and that's what never happened here.

[00:18:19] Speaker 03:
So, again, there's a separate provision in the regs that states the only

[00:18:27] Speaker 03:
Parties that can be excluded are those that have an individual weighted average dumping margin.

[00:18:32] Speaker 07:
Where does it say that only part?

[00:18:34] Speaker 07:
That's the part that's not there.

[00:18:35] Speaker 03:
It says for which, I'm sorry, 19 CFR 351 204E.

[00:18:40] Speaker 07:
Yeah, I'm there.

[00:18:42] Speaker 07:
I'm already there.

[00:18:43] Speaker 07:
I just don't see the word only.

[00:18:43] Speaker 03:
For which the secretary determines an individual weighted average dumping margin.

[00:18:48] Speaker 04:
I think the point is it says those people are hereby authorized to be excluded.

[00:18:55] Speaker 04:
Correct.

[00:18:57] Speaker 04:
Only those people.

[00:18:59] Speaker 04:
Where's that?

[00:19:01] Speaker 03:
Well, those are the parties that have had an individual weighted average dumping margin calculated under the statutory

[00:19:10] Speaker 03:
term and that has to be for a specific expert, one that is individually and fully examined, one whose questionnaire responses are submitted, one whose responses are verified.

[00:19:23] Speaker 07:
Okay, I think we have your argument and we've way exceeded your time, so unless there's any objection, let's hear from the government.

[00:19:29] Speaker 03:
Thank you.

[00:19:37] Speaker 07:
I think you start her in 15 minutes for now.

[00:19:42] Speaker 07:
Just do that and I'll cut her off.

[00:19:44] Speaker 00:
So we've split our time.

[00:19:46] Speaker 00:
I'm supposed to take eight minutes.

[00:19:47] Speaker 00:
I think that'll work out.

[00:19:49] Speaker 00:
I take eight and then the other cross.

[00:19:51] Speaker 07:
Yeah, but he gave me some of his but he used all his so I don't know what you got.

[00:19:55] Speaker 00:
Go ahead.

[00:19:55] Speaker 00:
Okay, I'll just go.

[00:19:55] Speaker 00:
In answer to your question, I am not speaking on the voluntary respondent part of the Court of International Trade's decision.

[00:20:04] Speaker 00:
We haven't taken a position on that.

[00:20:08] Speaker 00:
Why not?

[00:20:09] Speaker 00:
We disagree with the decision, so we had an opportunity to appeal it, obviously.

[00:20:15] Speaker 00:
We don't have authorization to appeal it.

[00:20:19] Speaker 00:
As to whether we could have spoken to it in some other way, it would have been extremely awkward for us to because, as you can tell, this wasn't really raised.

[00:20:29] Speaker 00:
It certainly wasn't raised before the Court of International Trade.

[00:20:32] Speaker 00:
It wasn't in the party's complaint.

[00:20:34] Speaker 00:
It became

[00:20:36] Speaker 00:
We had an issue during the argument before the trade court, during which we indicated to the trade court that it was our position that the issue had been waived.

[00:20:48] Speaker 00:
Commerce has never addressed the issue, so we had no final determination to defend or to hang our hat on in any way.

[00:20:55] Speaker 05:
So if we had filed a brief... Commerce didn't address this at A469-470?

[00:21:04] Speaker 00:
So Commerce is responding in that portion of the remand determination to a comment by Fine Furniture on page 461 of the remand determination.

[00:21:19] Speaker 00:
And here's the comment.

[00:21:20] Speaker 00:
It's about most of the way down.

[00:21:22] Speaker 00:
It starts on page 461 of the remand determination where Commerce goes through all the comments that it's received.

[00:21:33] Speaker 00:
Fine Furniture says that the department ignores the full questionnaire responses that are on the record and that it requested to be a voluntary respondent.

[00:21:43] Speaker 00:
Thus, the department's claim that the regulation should not be applied to separate rate respondents

[00:21:49] Speaker 00:
which carries no water with respect to Fine Furniture whose actual behaviour is on the record.

[00:21:55] Speaker 00:
So what Fine Furniture is saying is, all of our information is here, just look at it.

[00:22:00] Speaker 00:
Fine Furniture never claimed before the trial court that because it was a voluntary respondent, it deserved different treatment.

[00:22:09] Speaker 00:
The trial court raised this, sui sponte, during argument,

[00:22:14] Speaker 00:
during which we said that our position was that that had been long-waved and then the trial court found as it found, we do not have authorization to appeal that determination.

[00:22:24] Speaker 04:
What is the consequence for Commerce's forward-going discretion on this issue?

[00:22:37] Speaker 04:
Is your understanding that

[00:22:39] Speaker 04:
if we were to affirm the CIT, that on the terms that the CIT wrote, that commerce could or could not undertake consideration of this issue, namely whether the, everybody seems to call them voluntary respondents, the voluntary respondents should stay within the order

[00:23:05] Speaker 04:
in circumstances like this, or be excluded, or is commerce foreclosed from that by the CIT decision, assuming that decision was approved?

[00:23:15] Speaker 00:
Right, so if this court were to affirm the CIT decision in full, including that portion of it, I don't think that commerce would have... Why?

[00:23:25] Speaker 07:
I don't want to hear you say that.

[00:23:27] Speaker 07:
Why?

[00:23:27] Speaker 07:
If you're telling me commerce has not actually ever taken a position on the voluntary respondents, that's what you're saying.

[00:23:33] Speaker 07:
You're saying commerce didn't take a position on it.

[00:23:35] Speaker 07:
You're saying we didn't even take a position on the CIT because all the position we took was it was waived.

[00:23:40] Speaker 07:
And so then we're in a vacuum.

[00:23:43] Speaker 07:
The statute doesn't speak to this, in my view.

[00:23:46] Speaker 07:
The statute does not speak to this.

[00:23:48] Speaker 07:
So commerce would theoretically have the discretion to speak.

[00:23:52] Speaker 07:
Now, courts, when an agency hasn't exercised that discretion and there's a vacuum, courts can step in and say based on policy or other grounds,

[00:24:02] Speaker 07:
What the answer should be because we have to decide cases, but it's for commerce to decide policy and telling me commerce hasn't decided this policy question, then if we affirm the CIT, why wouldn't it still be a completely open issue available?

[00:24:18] Speaker 07:
for commerce to consider.

[00:24:20] Speaker 00:
Well, I think it would depend upon the scope of the court's holding.

[00:24:24] Speaker 00:
If the court holds, and again, I'm way out of my lane here because it's not something that we've briefed and that we have explicitly not taken a position on.

[00:24:31] Speaker 00:
But I think that if the court were to hold that under Chevron 2, it was reasonable for the voluntary respondents to be excluded from the order.

[00:24:46] Speaker 00:
I think then there is a window for commerce to determine something different in another case.

[00:24:54] Speaker 00:
But it depends.

[00:24:55] Speaker 00:
If the court holds somehow under Chevron 1,

[00:24:58] Speaker 00:
then I think commerce's hands would be more tied.

[00:25:02] Speaker 07:
Well, I mean, did I give you the slightest inclination that I was going under chevron one?

[00:25:07] Speaker 00:
It would be, again, it would be hard to say because it would depend on how the court characterizes its holding.

[00:25:17] Speaker 00:
for the voluntary respondent aspect of the decision, because, you know, if it did it in such a way as to foreclose... For example, if we were to hold, it would be unreasonable for Commerce to ever conclude that.

[00:25:29] Speaker 07:
That would make it very difficult for you to come around, right?

[00:25:33] Speaker 07:
But if we were to accept your position, which as I understand it, and confirm for me if this is your position, Commerce did not take a position on whether the voluntary respondents

[00:25:45] Speaker 07:
must continue to be bound under the anti-dumping duty order.

[00:25:49] Speaker 07:
That is correct.

[00:25:50] Speaker 07:
So commerce did not take a position.

[00:25:52] Speaker 07:
Correct.

[00:25:53] Speaker 04:
So if we read the CIT essay, basically, on the record that I have in front of me, which doesn't actually include a position and explanation, I don't see why it's reasonable and therefore I'm going to make you exclude these people.

[00:26:08] Speaker 04:
That doesn't foreclose commerce next time from squarely addressing the issue and creating a different record.

[00:26:14] Speaker 00:
Right, assuming that this court didn't somehow foreclose it, but yes.

[00:26:21] Speaker 00:
So I have about a minute and a half, so I'll get to the issue that we actually are defending.

[00:26:28] Speaker 00:
And again, I think this is an easy Chevron to question.

[00:26:33] Speaker 00:
The statute just doesn't say anything about what you do with all others when it comes time to

[00:26:40] Speaker 00:
determining whether there's an order.

[00:26:42] Speaker 00:
What the statute says is that you look at the individual weighted average dumping margins to determine whether there should be an order, and an order rises and falls on those margins.

[00:26:51] Speaker 00:
If there is no weighted average dumping margin that suggests that there's dumping, then there is no order.

[00:26:58] Speaker 00:
And one of the things that I want to be sure to do is to point out the chart

[00:27:03] Speaker 00:
at the back of Changzoo's brief, where it has a list of all of the times where, in its view, commerce has behaved differently.

[00:27:14] Speaker 00:
But I want to look at, I'm just going to read from the first one, and I'm going to represent that they all kind of say the same thing.

[00:27:20] Speaker 00:
But the first one is an investigation from a market economy country that was terminated, and this is what commerce says.

[00:27:28] Speaker 00:
The department has not calculated an all others rate because it has not reached an affirmative determination.

[00:27:37] Speaker 00:
So what commerce does in a situation where there isn't evidence of dumping is it doesn't even get to the all others question.

[00:27:43] Speaker 00:
It doesn't calculate a rate.

[00:27:45] Speaker 00:
It only cares about whether there is evidence of dumping and evidence of dumping can only be shown by an individual weighted average dumping margin.

[00:27:53] Speaker 00:
Unless you're in this situation, which has never happened before, where you have an order that continues to exist by virtue of the non-market economy state entity.

[00:28:04] Speaker 04:
Didn't it happen once?

[00:28:06] Speaker 04:
Something about class windshields?

[00:28:08] Speaker 00:
It did happen once and nobody really understands why, because there wasn't any explanation that's correct.

[00:28:13] Speaker 05:
Can I ask you about voluntary respondents?

[00:28:16] Speaker 05:
How often does commerce take up voluntary respondents' requests?

[00:28:23] Speaker 00:
I mean, honestly not that often, although it does happen.

[00:28:26] Speaker 00:
It didn't happen here.

[00:28:27] Speaker 00:
It did not happen here.

[00:28:28] Speaker 00:
But it's not infrequent for commerce to say we are too busy and we can't take up any voluntary respondents.

[00:28:36] Speaker 05:
Right.

[00:28:36] Speaker 05:
I guess what I'm trying to figure out is, is it a minority of times where volunteers are taken up on their requests, or is it, I don't know, half the time?

[00:28:46] Speaker 00:
I would say minority.

[00:28:47] Speaker 00:
That would be my best guess.

[00:28:50] Speaker 00:
But I'll also represent that this conflagration of events is very likely to happen again, where you have all of the mandatories that have gotten zero rates and a statewide entity that exists because there are companies that have failed to cooperate and there are companies that sought voluntary respondent treatment.

[00:29:14] Speaker 00:
I think those stars are unlikely to align again.

[00:29:16] Speaker 00:
So I've gone past the time that I... Yes, unlikely.

[00:29:18] Speaker 00:
Unlikely to align again.

[00:29:20] Speaker 07:
Okay.

[00:29:21] Speaker 07:
Thank you, Ms.

[00:29:25] Speaker 07:
Burke.

[00:29:26] Speaker 07:
Thank you.

[00:29:27] Speaker 01:
So how much time do you think you have?

[00:29:28] Speaker 01:
We have five minutes.

[00:29:29] Speaker 01:
Yeah, we'll see.

[00:29:31] Speaker 05:
Let's go.

[00:29:31] Speaker 05:
Are you the last one?

[00:29:32] Speaker 01:
I'm the last one on the appellee.

[00:29:36] Speaker 01:
Okay.

[00:29:36] Speaker 01:
Excuse me.

[00:29:37] Speaker 01:
There is one other separate rate respondent who is a voluntary applicant who has two minutes with the clerks.

[00:29:45] Speaker 01:
I'll go quickly.

[00:29:48] Speaker 01:
Let me bring this back to Jill Kramer on behalf of Fine Furniture Shanghai Limited.

[00:29:54] Speaker 01:
Let me bring it back to what George Gordon found for the voluntary applicants.

[00:29:57] Speaker 01:
He said there's some free play in the statute so he went to Chevron too.

[00:30:01] Speaker 01:
And he said that commerce arbitrarily applied the statute as to the voluntary applicants.

[00:30:06] Speaker 01:
And that is correct for our client.

[00:30:08] Speaker 01:
Fine furniture submitted over a thousand pages of question and response.

[00:30:11] Speaker 07:
Well, I don't think that really you have to talk too long because the government has suggested that commerce did not make any sort of an informed determination regarding the voluntary respondents.

[00:30:23] Speaker 01:
I disagree with that contention because from the very first day of the initiation of this case in November 2010, Fine Furniture asked to be a voluntary respondent.

[00:30:32] Speaker 01:
It asked Commerce to review its status.

[00:30:34] Speaker 07:
Really?

[00:30:34] Speaker 07:
Because if you disagree with that, there's a chance you lose.

[00:30:36] Speaker 07:
Whereas if you agree with it, I feel like you're walking out of here with a win unless you aren't listening.

[00:30:41] Speaker 01:
I'm sorry, I must have misunderstood the question.

[00:30:44] Speaker 01:
I was trying to raise the point that Fine Furniture has been asking Commerce to look at its data, but Commerce refused.

[00:30:51] Speaker 07:
Despite the fact... Yes, but the CIT held in your favor that you should be excluded by virtue of having offered.

[00:30:59] Speaker 07:
Right, exactly.

[00:31:00] Speaker 07:
And Commerce is not...

[00:31:02] Speaker 07:
and denying that that is appropriate on appeal, and in fact they're suggesting they took no real position on the issue of whether you should continue to be bound or not by the anti-dumping duty order, which means that the courts need to make that assessment.

[00:31:20] Speaker 07:
You've got one court that already said what it said,

[00:31:26] Speaker 01:
what what okay I'm confused where are you playing I'm agreeing with the decision of Judge Gordon below that commerce arbitrarily applied the regulations by not entertaining any voluntary applicants maintaining an assumption that the voluntary applicants were dumping I'm sorry do you

[00:31:46] Speaker 07:
want us to vacate and remand and make commerce look at your data, or aren't you just happy to be out from under the anti-democracy duty order?

[00:31:55] Speaker 01:
Precisely, precisely.

[00:31:55] Speaker 01:
I'm trying to state that we agree with Judge Gordon's opinion that by not entertaining any voluntary applicants, that commerce's determination was arbitrary under its own regulations.

[00:32:10] Speaker 07:
By not entertaining applicants, its determination was arbitrary.

[00:32:14] Speaker 07:
Well, that would suggest then the remedy would be send it back and make them entertain you.

[00:32:19] Speaker 01:
No, Your Honor.

[00:32:20] Speaker 01:
I don't believe it would because as Judge Gordon found, the decision was arbitrary.

[00:32:25] Speaker 01:
The court didn't need to send it back because it was an arbitrary and capricious decision.

[00:32:32] Speaker 01:
The commerce neglected for all that time to make a decision just as it has here.

[00:32:38] Speaker 01:
It has decided not to appeal.

[00:32:39] Speaker 01:
It has decided not to pursue this issue.

[00:32:42] Speaker 01:
So for that reason, I think the court should abstain the decision of Judge Gordon.

[00:32:49] Speaker 07:
Okay, why don't we hear from the two-minute person.

[00:33:03] Speaker 07:
Wait, I thought it was the lady, no?

[00:33:06] Speaker 06:
Sorry.

[00:33:07] Speaker 07:
Oh, you're on the same team, though?

[00:33:10] Speaker 06:
Yes.

[00:33:10] Speaker 06:
She's up Thursday.

[00:33:13] Speaker 06:
We have another panel on Thursday.

[00:33:15] Speaker 06:
So theoretically, I have two minutes to defend the separate company that was excluded and three minutes to reply on my main appeal for the five that were included.

[00:33:23] Speaker 06:
Just do whatever.

[00:33:24] Speaker 06:
Go ahead.

[00:33:25] Speaker 06:
My only point on my separate company that was excluded for having requested voluntary treatment

[00:33:29] Speaker 06:
is that although it didn't put a heap of information on the record unlike fine furniture it and the other five appellants that got included in the order in the course of remand three and four when the judge wanted to open everything up and say let's we don't need to make assumptions the respondents are willing to give you a lot of data sales databases all kinds of information so the commerce could compare these separate companies more closely to the mandatory respondents we feel that we all

[00:33:56] Speaker 06:
We're in a position like Fire and Furniture to disclose a tremendous amount of information.

[00:34:00] Speaker 07:
Except you're not, because you weren't a voluntary respondent.

[00:34:03] Speaker 07:
You weren't somebody that asked to be looked at.

[00:34:05] Speaker 07:
So you're not in the same position.

[00:34:07] Speaker 06:
Well, JICE and the two-minute company did ask to be looked at.

[00:34:09] Speaker 06:
And then Commerce categorically declined to review them all.

[00:34:13] Speaker 06:
And then the judge, in its discretion, tried to open the record.

[00:34:16] Speaker 06:
And Commerce said, no, we really want everything or nothing.

[00:34:19] Speaker 06:
And we don't have the resources to do everything.

[00:34:21] Speaker 06:
So we're taking nothing.

[00:34:23] Speaker 06:
And then the judge allowed them to infer a penalty to the separate companies based on the non-repliant companies.

[00:34:30] Speaker 06:
And that's what this first panel overturned.

[00:34:32] Speaker 06:
You can't infer dumping to the separate cooperating companies based on the PRC entity.

[00:34:38] Speaker 06:
And to get to Judge Chen's question, how often does commerce take voluntary respondents?

[00:34:42] Speaker 06:
Almost never.

[00:34:44] Speaker 05:
And that's because they find that it would be too administratively burdensome.

[00:34:49] Speaker 06:
Yes, they just say, we don't have the resources to pick more than the mandatory respondents that we selected, and they usually select two or three at most.

[00:34:59] Speaker 05:
So then if all 100 importers volunteer,

[00:35:04] Speaker 05:
They kind of know ahead of time that they're not going to get individually examined.

[00:35:09] Speaker 06:
Right.

[00:35:10] Speaker 06:
It's a huge waste of time, essentially, because commerce won't pick them.

[00:35:13] Speaker 06:
And if one of the three mandatory quits, commerce will take a replacement mandatory, or potentially.

[00:35:18] Speaker 07:
Well, it's not a huge waste of time, because if you get picked and you get individual review and you establish entitlement to the zero, then you're out from under the anti-dumpy duty order.

[00:35:29] Speaker 07:
And if you don't get picked, and if the rule of law that comes out of this case, at least for now until commerce looks at it, is that that gets you out from under the anti-dumping duty or the mere fact that you volunteered and proffered a bunch of data gets you out the same way as if it had been reviewed, then you win there too, right?

[00:35:46] Speaker 07:
The only, so why, I don't understand.

[00:35:49] Speaker 06:
Because hundreds of companies on a regular rolling basis every month would have to submit thousands of pages of documents with a 1% chance of it being considered.

[00:35:57] Speaker 07:
But if the rule of law that comes from this is all those companies get out from under the anti-dumping duty order, then they don't continue to submit all those documents, correct?

[00:36:06] Speaker 06:
We would submit that it's unreasonable to require companies to go through all that when commerce essentially is never going to pick them.

[00:36:14] Speaker 06:
I think the lower court was bothered by its draconian interpretation of the Voluntary Respondent Statute.

[00:36:21] Speaker 07:
When commerce is never going to pick them, but if the rule is, if you volunteer and proffer the data and they choose not to pick you, you're out.

[00:36:30] Speaker 07:
Why is that somehow a bad rule?

[00:36:34] Speaker 06:
It will certainly cause us to give that advice to our clients, but many would not spend the hundreds of thousands of dollars for the one percent chance.

[00:36:42] Speaker 07:
They're not spending it for the 1% chance they get picked.

[00:36:45] Speaker 07:
They're spending it, in fact, probably hoping they don't get picked, because then they don't have to spend hundreds of thousands of dollars, and they get out.

[00:36:53] Speaker 07:
So basically, it's like the Monopoly get-out-of-jail-free card that you get from... Right.

[00:36:58] Speaker 06:
I understand your position.

[00:36:59] Speaker 04:
If I could just take... Just to be clear, merely making the request without backup data is not what Judge Gordon said.

[00:37:10] Speaker 06:
He did say merely making a request.

[00:37:16] Speaker 06:
But the statute, when you read it, Voluntary Respondents says you also have to timely make all the submissions on the deadline for the mandatory respondents.

[00:37:24] Speaker 04:
If we read the current CIT position to be that in the absence of something contrary from commerce it's unreasonable

[00:37:34] Speaker 04:
to include, that is to fail to exclude, somebody who asked to be a voluntary respondent and supplied full data, then it might in fact be very costly to meet that threshold.

[00:37:51] Speaker 06:
Yes, you're correct, Your Honor.

[00:37:52] Speaker 06:
And, you know, these 30 cases in the back of our brief, I mean, the Commerce Department is taking the position that we'll never terminate an order because we will never assign a rate to the all-others companies.

[00:38:05] Speaker 06:
That means they could never terminate an order.

[00:38:07] Speaker 06:
They picked one or two or three mandatory respondents, they're de minimis, while they still have to impose the order because they didn't calculate individual rates for the all-others.

[00:38:16] Speaker 07:
Mr. Menenges, you've way exhausted all of your time.

[00:38:18] Speaker 06:
Is there a final thought you'd like?

[00:38:21] Speaker 06:
Thank you for your patience.

[00:38:23] Speaker 07:
That's everybody, right?

[00:38:24] Speaker 07:
Nobody's gonna try and stand back up again.

[00:38:26] Speaker 07:
No, you used all your time.

[00:38:28] Speaker 07:
You don't have any more.

[00:38:29] Speaker 07:
We're done.

[00:38:29] Speaker 07:
Thank you.

[00:38:30] Speaker 07:
Please submit it.