[00:00:00] Speaker 02:
garlic growers versus United States.

[00:00:52] Speaker 02:
Mr. Lanza, please proceed.

[00:01:08] Speaker 08:
Thank you.

[00:01:09] Speaker 08:
If it please the court.

[00:01:11] Speaker 08:
Anthony Lanza on behalf of plaintiffs and appellants, the New Mexico Gallagher-Gulliver's coalition, and El Bosque Farm, which is Stanley Crawford.

[00:01:19] Speaker 08:
I'm here today with my partner, Brody Smith.

[00:01:21] Speaker 08:
We're going to divide duties.

[00:01:22] Speaker 08:
He's going to handle the Chevron deference issue for statutory interpretation.

[00:01:26] Speaker 08:
That is the question, do commerce regulations violate the Tariff Act of 1930, thus allowing Harmony to avoid annual review for anti-dumping duties?

[00:01:35] Speaker 07:
Anthony Lanza, let me ask you just sort of preliminarily one question.

[00:01:39] Speaker 07:
Page seven through eight of your brief you have the statement of issues number one is did commerce air by rescinding the administrative view with respect to harmony and then The second issue is does CFR the reg is it invalid okay?

[00:01:57] Speaker 07:
Those are your first two issues.

[00:01:59] Speaker 07:
Yes, you're right now.

[00:02:00] Speaker 07:
Let me ask you this Is the first issue Determinant of the case assume for the moment we

[00:02:07] Speaker 07:
reversed and ruled in your favor and said that the rescission was bad.

[00:02:13] Speaker 07:
Am I correct in thinking we would not then reach the second issue about the validity of the regulation because you then are having your review?

[00:02:25] Speaker 07:
Your Honor, you could reach both issues.

[00:02:27] Speaker 07:
They're not mutually exclusive.

[00:02:29] Speaker 07:
No, no.

[00:02:29] Speaker 07:
But I'm saying if we rule in your favor on the first issue, is it necessary to reach the second issue as a jurisprudential matter?

[00:02:40] Speaker 08:
I think it is.

[00:02:41] Speaker 08:
I think it is because you're going to be sending us back, in the instance you just described, to the Department of Commerce.

[00:02:47] Speaker 08:
And they're going to be operating under a regulation that's an invalid interpretation of a statute.

[00:02:52] Speaker 07:
No, but you're going to have your review in place.

[00:02:55] Speaker 07:
If we send it back, the situation, and correct me if I'm wrong, the situation will be that now Harmony is subject to the review that was rescinded, correct?

[00:03:07] Speaker 08:
This depends, Your Honor.

[00:03:08] Speaker 07:
Is that right?

[00:03:09] Speaker 08:
This depends upon the nature of your remat.

[00:03:11] Speaker 08:
If, in fact, you insist that Harmony does

[00:03:14] Speaker 08:
that does get reviewed because Stan Crawford does have standing as a garlic farmer, which he does, and you insist upon that rather than allowing commerce to reassess the issue, then you're right.

[00:03:24] Speaker 07:
No, no.

[00:03:25] Speaker 07:
If we said it was wrong to rescind the review and we say go back and harmony has to be reviewed, under that circumstance, I don't see why it would be necessary to get to issue two.

[00:03:37] Speaker 08:
Yeah, you could be right.

[00:03:38] Speaker 08:
Because you have gotten the review you want.

[00:03:41] Speaker 08:
Assuming also that Harmony is treated as a mandatory respondent in that scenario.

[00:03:47] Speaker 08:
which is, of course, what we're asking for.

[00:03:48] Speaker 08:
Because once a valid review request is in effect, the foreign exporter should be a mandatory respondent.

[00:03:55] Speaker 08:
But yes, in that scenario, I believe you're right.

[00:03:57] Speaker 07:
Now what if you lose, on the other hand?

[00:04:00] Speaker 07:
What if we were to affirm the rescission of the Harmony Review?

[00:04:05] Speaker 08:
In the highly unlikely event we lose, Your Honor, yes, you are correct.

[00:04:08] Speaker 08:
We would have to look at the invalidity of the regulation.

[00:04:12] Speaker 07:
I'm sorry to jump in on you like that, but I kind of want to get a sense, in my own mind at least, of how things fall out under different possibilities.

[00:04:22] Speaker 08:
Perfectly fine.

[00:04:23] Speaker 08:
I'm willing to answer any questions, Your Honors.

[00:04:25] Speaker 08:
So I'm going to briefly address now standing, which is the issue I'm here for.

[00:04:29] Speaker 08:
When you talk about standing, I want to talk about the elephant in the room.

[00:04:32] Speaker 08:
The elephant in the room is the fact that Harmony submitted the evidence to Commerce proving that Stan Crawford is a New Mexico garlic farmer, although a small one.

[00:04:40] Speaker 08:
A garlic farmer.

[00:04:41] Speaker 03:
And can I, can I just, um, so I took it that that point is important to your argument because even if one accepts that commerce can say the New Mexico garlic growers lied, we therefore won't believe anything the New Mexico garlic growers say to us.

[00:05:09] Speaker 03:
The net result remains a record not dependent on the New Mexico garlic growers credibility, establishing the only point at issue, namely, the New Mexico garlic growers produced a domestic-like product.

[00:05:28] Speaker 08:
Well spoken.

[00:05:30] Speaker 08:
You're right, Your Honor.

[00:05:31] Speaker 08:
It is Harmony's submissions that prove that Stan Cropper is a garlic farmer.

[00:05:36] Speaker 08:
We believe he's credible, but for purposes of this appeal, it doesn't really matter.

[00:05:41] Speaker 08:
And none of the three defendants dispute this, by the way, or even discuss it for that matter.

[00:05:46] Speaker 02:
Well, I understood the counter-argument to be that the initial request was illegitimate because of the misrepresentations.

[00:05:57] Speaker 02:
So why wouldn't that

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govern such that commerce was within its discretion, and we do review this under an abusive discretion standard, to dismiss

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kick out the entire request because of the fraudulent statements.

[00:06:12] Speaker 08:
The alleged misrepresentations do not consist of statements in the initial review request.

[00:06:17] Speaker 08:
That's a very small document, which basically just says, please review this foreign exporter.

[00:06:22] Speaker 08:
What commerce identified as the alleged lack of credibility, the alleged lies, are matters that happen later during the administrative process, talking about Chinese affiliation, talking about why did you withdraw a review request a year earlier in AR-20?

[00:06:39] Speaker 08:
This, of course, is AR 21.

[00:06:41] Speaker 08:
So no, the alleged lies relate to all those topics subsequent to the review request being filed.

[00:06:48] Speaker 03:
And they simply don't matter because already proved... But why can't commerce say, if it has said, and I'm not sure it has said, if you lie to us

[00:07:01] Speaker 03:
We are entitled, by virtue of background, inherent authority, allowing us to protect the integrity of our proceedings, to dismiss you from the proceedings, not limited to any fact-finding.

[00:07:14] Speaker 08:
Because that's contrary to the statute.

[00:07:17] Speaker 08:
Which statute?

[00:07:18] Speaker 08:
The statute is clear.

[00:07:19] Speaker 03:
Which provision?

[00:07:19] Speaker 03:
1677E?

[00:07:21] Speaker 08:
It's 1673, no 1675, Your Honor, which is the statute governing annual reviews.

[00:07:27] Speaker 08:
It says you are entitled to insist upon an annual review if you are a domestic producer.

[00:07:33] Speaker 08:
In this case, that amounts to a garlic farmer.

[00:07:36] Speaker 08:
That's it.

[00:07:37] Speaker 08:
That's the statute.

[00:07:39] Speaker 03:
Commerce cannot sidestep that regulation by creating this theory that... So I gather you're arguing that a claim of inherent authority to dismiss has to be tied to a particular requirement for the standing to request review.

[00:08:00] Speaker 08:
Yes, that's correct.

[00:08:02] Speaker 03:
Because standing matters.

[00:08:03] Speaker 03:
Why is that so?

[00:08:04] Speaker 03:
Why isn't the inherent authority broader?

[00:08:07] Speaker 08:
Because standing matters.

[00:08:08] Speaker 08:
Standing is what enables a domestic producer to insist upon a review for a foreign exporter to protect the domestic industry.

[00:08:15] Speaker 08:
The purpose of the act.

[00:08:16] Speaker 02:
Yes, but that just goes to standing.

[00:08:19] Speaker 02:
You're not answering Judge Sharana's question, which is why doesn't commerce have inherent authority, even

[00:08:26] Speaker 02:
when standing exists to dismiss a fraudulent petition.

[00:08:29] Speaker 02:
Suppose it was fraudulent not related to standing.

[00:08:33] Speaker 02:
Why doesn't commerce have inherent authority to dismiss a fraudulently filed petition, a petition riddled with fraud?

[00:08:41] Speaker 08:
When you talk about a petition, there's no petition, Your Honor.

[00:08:44] Speaker 02:
I'm not asking you to dispute the facts of my hypothetical.

[00:08:47] Speaker 02:
I'm asking you to answer it.

[00:08:48] Speaker 02:
Why doesn't commerce have inherent authority, if a petition contains fraud in it, to dismiss that petition

[00:08:56] Speaker 02:
even if the fraud doesn't go to the standing?

[00:08:59] Speaker 08:
Because there's no authority as such anywhere in the statutes or regulations or even the case law that I'm aware of for a review.

[00:09:07] Speaker 08:
We're not talking about a petition.

[00:09:08] Speaker 08:
We're talking about an annual review.

[00:09:10] Speaker 08:
So I'm going to limit it to an annual review because that's all that's at issue here.

[00:09:13] Speaker 08:
And for an annual review, there's no such authority.

[00:09:16] Speaker 08:
Now, I'm not a sign of, I'm about out of time.

[00:09:19] Speaker 08:
I think I'd like the reserves.

[00:09:20] Speaker 02:
I just want to be clear.

[00:09:23] Speaker 02:
You've used your time.

[00:09:24] Speaker 02:
You've used your rebuttal time.

[00:09:25] Speaker 02:
You guys are the same party.

[00:09:27] Speaker 02:
I'm not giving him full time when you use his time.

[00:09:30] Speaker 02:
I would suggest that you keep going, because I'll tell you right now, his points are not nearly as important as yours.

[00:09:35] Speaker 02:
But that's up to the two of you to work out.

[00:09:37] Speaker 02:
But I'm not going to micromanage you both.

[00:09:40] Speaker 08:
OK.

[00:09:41] Speaker 08:
Well, understood.

[00:09:43] Speaker 07:
Now, let me, in this regard, because this goes to the point I was saying.

[00:09:49] Speaker 07:
The regulation has two requirements, as I read it.

[00:09:52] Speaker 07:
First of all, you have to be an interested party, correct?

[00:09:57] Speaker 07:
Correct.

[00:09:58] Speaker 07:
Second, you have to explain why the person desires the secretary to review those particular exporters or producers.

[00:10:09] Speaker 07:
Now, why are the three alleged misrepresentations here not pertinent to that why question?

[00:10:17] Speaker 08:
First of all, there's no requirement of a certain motive.

[00:10:21] Speaker 08:
The regulation does ask to explain why, which, by the way, is not derived from the statute.

[00:10:26] Speaker 08:
It's only in the regulation.

[00:10:27] Speaker 08:
But it doesn't say what the why must be.

[00:10:30] Speaker 08:
There's no requirement anywhere.

[00:10:31] Speaker 07:
But you have to tell.

[00:10:36] Speaker 07:
You have to say why you're seeking the review, right?

[00:10:41] Speaker 07:
Correct.

[00:10:42] Speaker 07:
Under the regulation, not the statute, you're correct.

[00:10:45] Speaker 07:
OK.

[00:10:46] Speaker 07:
I would think it's not unreasonable for Congress to require someone to present honest answers as to why they're seeking a review, correct?

[00:10:58] Speaker 07:
Yes, but it could be because I like blue shoes.

[00:11:01] Speaker 07:
Well, whatever the reason is, though, if someone says, I'm seeking this request for reasons A, B, and C, so I comply with the regulation, and it's determined that A, B, and C are false, why under the cases does not

[00:11:16] Speaker 07:
does commerce not have the discretion to disregard that and say you haven't done what you have to do to obtain a review?

[00:11:24] Speaker 07:
So we rescind it.

[00:11:25] Speaker 08:
Because there's no requirement anywhere for a particular motive for a domestic reviewer, for a domestic party to insist upon a review request.

[00:11:33] Speaker 02:
You're right.

[00:11:34] Speaker 02:
So maybe if they had told the truth and said because

[00:11:37] Speaker 02:
Even, and I know you're saying allegedly, so just skip over that for a second, maybe if they had told the truth and said why I'm desiring it is because somebody else, a different exporter, a foreign exporter, paid me 50 grand to do this, maybe we would then be confronted with the question of whether or not Congress is allowed to import some sort of motivation into the request.

[00:11:57] Speaker 02:
But that's not the set of facts we have here.

[00:11:59] Speaker 02:
We have a set of facts about them making assertion as to why and commerce determining that that assertion was a lie.

[00:12:05] Speaker 02:
And so that's where we are now.

[00:12:06] Speaker 02:
So given that they lied in their request, why doesn't commerce have inherent authority to rescind

[00:12:14] Speaker 02:
the request at that point.

[00:12:15] Speaker 08:
Because commerce didn't identify any lies in the request.

[00:12:19] Speaker 08:
Commerce was explicit in the final IDM that motive doesn't matter.

[00:12:24] Speaker 08:
What commerce identified were alleged lies that are irrelevant.

[00:12:28] Speaker 03:
Things like... I'm sorry, you're making, I think, two different points, so let me try to separate them.

[00:12:33] Speaker 03:
One is a timing point.

[00:12:34] Speaker 03:
The issues and decision memo identifies essentially three assertions that it says were knowingly false.

[00:12:43] Speaker 03:
Correct.

[00:12:43] Speaker 03:
Does it say those assertions were made in the request or at some later point at some later point?

[00:12:50] Speaker 08:
Okay.

[00:12:51] Speaker 03:
So even if they are legally immaterial, there's a, you have a point about timing.

[00:12:58] Speaker 03:
Yes.

[00:12:58] Speaker 03:
And you think that that makes the regulatory requirement inapplicable to these by assumption lies.

[00:13:07] Speaker 08:
Yes, because the review request is a very narrow document.

[00:13:10] Speaker 08:
It's literally two pages.

[00:13:11] Speaker 08:
It just basically says, I'm a domestic producer.

[00:13:13] Speaker 08:
I'd like you to take a look at the foreign exporter and do what the act requires, which is see if they're dumping and impose duties if they are.

[00:13:20] Speaker 08:
Where is that document in the JS?

[00:13:22] Speaker 02:
Where is the review request?

[00:13:25] Speaker 08:
I am not able.

[00:13:26] Speaker 08:
I can sit down and find that exact APPS.

[00:13:29] Speaker 08:
I'm not able to identify that at this point.

[00:13:31] Speaker 03:
Did that document state why

[00:13:35] Speaker 03:
why the person desires?

[00:13:37] Speaker 08:
Yes, it did.

[00:13:38] Speaker 08:
And it's a very brief statement.

[00:13:39] Speaker 03:
Do you remember, even if you can't point us to it, what it said?

[00:13:44] Speaker 08:
It's a very brief statement.

[00:13:45] Speaker 08:
And it essentially says to ensure that the domestic garlic farming industry can compete fairly with exporters who are exporting garlic into the US, notably Harmony, which is the largest exporter of Chinese garlic into the US.

[00:14:00] Speaker 08:
That's essentially what it says.

[00:14:01] Speaker 08:
That's not a verbatim quote.

[00:14:03] Speaker 08:
It's very brief.

[00:14:04] Speaker 08:
And it's completely true.

[00:14:07] Speaker 08:
And it wasn't challenged.

[00:14:08] Speaker 08:
This is the important point.

[00:14:09] Speaker 08:
Commerce didn't challenge that comment.

[00:14:12] Speaker 08:
Commerce challenged the electability of later comments.

[00:14:14] Speaker 03:
Might that be false because it was a contrived reason, not the real reason?

[00:14:27] Speaker 08:
No, it's irrefutable that Stan Crawford is a domestic producer of garlic.

[00:14:31] Speaker 08:
He is a garlic farmer.

[00:14:32] Speaker 08:
He sells garlic.

[00:14:33] Speaker 08:
Garlic competes with garlic.

[00:14:35] Speaker 08:
It's inevitable that his garlic at some level competes with the garlic being imported by Harmony and others.

[00:14:40] Speaker 08:
And this is part of the record.

[00:14:42] Speaker 08:
He's expressly said, my prices compete with their prices because for many people, garlic is garlic.

[00:14:47] Speaker 08:
Although there is, of course, a distinction between fresh garlic and imported garlic, certainly if you talk to Stan Crawford and others as well.

[00:14:54] Speaker 08:
But ultimately, there is garlic.

[00:14:56] Speaker 08:
So they're competing.

[00:14:57] Speaker 08:
So that statement is inevitably true.

[00:14:59] Speaker 08:
And the record confirms it as well.

[00:15:01] Speaker 08:
And further, it's not what commerce challenged as being allegedly lies.

[00:15:06] Speaker 08:
Those were other things that were irrelevant to the review request and irrelevant to standing.

[00:15:11] Speaker 02:
Well, what they challenged was the why, right?

[00:15:17] Speaker 02:
into question was the why was this request filed?

[00:15:20] Speaker 08:
No.

[00:15:21] Speaker 08:
Let me quote from the final IDM, the final decision.

[00:15:24] Speaker 08:
A legitimate domestic producer might have ties or affiliations with foreign companies, and this would not cause the domestic producer to lose its status as a domestic interested party under the act.

[00:15:37] Speaker 08:
So it's not about that.

[00:15:40] Speaker 08:
This foreign affiliation issue, even commerce said it doesn't matter.

[00:15:44] Speaker 02:
So is your point, just so I understand it, that what commerce did is not necessarily what the CIT said and what is being argued to us now?

[00:15:53] Speaker 02:
Because I think that what went up on appeal and what the CIT said seems quite a bit more extensive than what you just read to me.

[00:16:05] Speaker 08:
That's not my recollection, Your Honor.

[00:16:07] Speaker 08:
It is a long decision from Judge Barnett at the CIT.

[00:16:10] Speaker 08:
But I don't believe he focused on the alleged lies that Congress focused on, which were those three categories I mentioned, none of them being in the review request, all of them coming subsequent to the review request in the process administered by the Department of Commerce.

[00:16:25] Speaker 02:
Can't they impact the review request?

[00:16:29] Speaker 08:
Can those alleged lies impact the review request?

[00:16:32] Speaker 02:
He was paid to file this and had no personal motive to desire to do so.

[00:16:37] Speaker 02:
If that was what the record showed, couldn't that impact the review request?

[00:16:42] Speaker 02:
Just because the lie was uncovered later doesn't mean it can't affect his earlier actions.

[00:16:47] Speaker 08:
The alleged lies would not impact because he's a domestic producer.

[00:16:53] Speaker 08:
This is what gets lost in this conversation.

[00:16:55] Speaker 08:
The statute requires one thing and one thing only.

[00:16:58] Speaker 08:
You need to be a domestic producer.

[00:16:59] Speaker 07:
That's the point of the act.

[00:17:01] Speaker 07:
You're correct.

[00:17:01] Speaker 07:
He has to be a domestic producer.

[00:17:03] Speaker 07:
I agree.

[00:17:04] Speaker 07:
But being the domestic producer, he also has to explain why he is seeking the review.

[00:17:11] Speaker 07:
That's part of the regulation.

[00:17:14] Speaker 07:
And if that is misrepresented, the why is misrepresented.

[00:17:20] Speaker 07:
Why is it wrong for commas to exercise the inherent authority it has that's been identified in TSK and another case to rescind?

[00:17:34] Speaker 08:
The Y only appears in the regulation, not in the statute.

[00:17:37] Speaker 07:
But you haven't challenged that part of the regulation, have you?

[00:17:40] Speaker 08:
Yes.

[00:17:40] Speaker 08:
Yes, we're challenging the regulation, that part of the regulation.

[00:17:46] Speaker 07:
But I don't recall a challenge to the requirement in the regulation that the

[00:17:53] Speaker 07:
person requesting review explain why the review is being requested?

[00:17:58] Speaker 07:
I don't recall a challenge to that.

[00:17:59] Speaker 08:
You may be right about that, George.

[00:18:01] Speaker 08:
That portion of our brief is being handled by my partners.

[00:18:03] Speaker 08:
You may be right about that narrow issue, but more importantly... No, it's not a narrow issue.

[00:18:08] Speaker 07:
I mean, it's one of the... The why seems to be fairly important here.

[00:18:13] Speaker 08:
But there's no statement anywhere as to what the why must be.

[00:18:17] Speaker 08:
There's no requirement anywhere as to what the motive must be.

[00:18:20] Speaker 03:
So the why can be... Only that it must be sincere.

[00:18:25] Speaker 08:
Well, I'm not aware of that requirement, but that would be a fair requirement.

[00:18:33] Speaker 08:
That would be a fair requirement.

[00:18:34] Speaker 08:
I'm not aware of where it states that.

[00:18:36] Speaker 08:
The congressional statute is crystal clear.

[00:18:38] Speaker 08:
You just have to be a domestic producer.

[00:18:40] Speaker 08:
Because that's the point of the act, the productive domestic issue.

[00:18:42] Speaker 02:
I think we have your argument.

[00:18:45] Speaker 02:
With my colleague's indulgence, we'll give Mr. Smith two minutes to make, and if my colleagues have a lot of questions, of course, that might go longer.

[00:18:54] Speaker 02:
And we'll restore.

[00:18:56] Speaker 02:
a minute or two of rebuttal time for you.

[00:18:58] Speaker 02:
We'll play it out.

[00:18:59] Speaker 08:
I would appreciate a little bit of rebuttal time, because I can further expand on this.

[00:19:02] Speaker 02:
I was trying to get the three cases.

[00:19:03] Speaker 02:
Well, I'm sure you would appreciate rebuttal time, but you've used all of your time, all of your rebuttal time, and almost all of his time.

[00:19:08] Speaker 08:
I'm sorry, Your Honor.

[00:19:09] Speaker 02:
So sit down, and we'll figure it out.

[00:19:11] Speaker 08:
I just want to let you know that I can talk about three cases on this precise issue.

[00:19:19] Speaker 00:
Thank you, Your Honors.

[00:19:19] Speaker 00:
May it please the Court?

[00:19:21] Speaker 00:
The 1984 amendment to the annual review statute, section 1675, 19 USC 1675, simply added the phrase, if a request for such a review has been received.

[00:19:33] Speaker 00:
And over time, the Commerce Department came to interpret that phrase as not only establishing a triggering event, the filing of a review request, but also essentially modifying the scope, allowing some companies to be excluded from the review if they weren't named in a review request.

[00:19:48] Speaker 00:
But the rest of that statute, the rest of the act, and the legislative history are inconsistent with that interpretation, to the point where it shouldn't survive a Chevron analysis.

[00:19:57] Speaker 00:
The amendment was never intended to change, essentially, the scope.

[00:20:01] Speaker 00:
The very same statute, 1675, subsection A2,

[00:20:05] Speaker 00:
continues to require in every review a redetermination of the dumping margin for, quote, each entry of subject merchandise.

[00:20:14] Speaker 00:
Now, the trade court ruled that that phrase is modified and narrowed by the if requested language, five paragraphs above it, which the trade court ruled can, under Chevron, be interpreted as allowing company-specific reviews.

[00:20:27] Speaker 00:
There's two points in response, both entry

[00:20:30] Speaker 00:
Subject merchandise are defined terms in the act and are used throughout the act to refer to specific products coming from a specific country These are not company specific concepts under the act Also the legislative history of this 1984 amendment shows that the addition of that phrase If a request for such a review has been received was not intended to change the scope house report 98-725 at page 22 explains how

[00:20:59] Speaker 00:
that the 1984 amendment was supposed to eliminate reviews of an entire order if there was no interest from the domestic industry, not to allow companies to be excluded if they weren't named.

[00:21:11] Speaker 07:
Mr. Lanza, I think, said that you could illuminate one thing.

[00:21:15] Speaker 07:
Am I correct in thinking that

[00:21:20] Speaker 07:
The Garlic Growers Association or Council does not challenge the provision and the regulation that requires a person requesting a review to state why the review is being requested.

[00:21:34] Speaker 00:
Are you asking if we do not challenge that?

[00:21:37] Speaker 07:
It's been my understanding that that provision was not being challenged.

[00:21:42] Speaker 07:
I realize you're making another argument.

[00:21:44] Speaker 07:
You've just been articulating it.

[00:21:46] Speaker 07:
But I don't see anywhere a challenge to the requirement and the regulation that the person requesting a review explain why he or she is requesting the review.

[00:21:58] Speaker 00:
To be frank, I don't believe that is in our briefing, but I could be wrong.

[00:22:03] Speaker 07:
So I can accept you're not challenging the validity of that requirement.

[00:22:07] Speaker 07:
I am not.

[00:22:07] Speaker 07:
No.

[00:22:08] Speaker 07:
OK.

[00:22:09] Speaker 02:
Well, your time is up.

[00:22:11] Speaker 02:
You exceeded it by a minute.

[00:22:13] Speaker 02:
So let's move on and hear from the other side.

[00:22:15] Speaker 02:
OK.

[00:22:18] Speaker 02:
So before we even start with the other side,

[00:22:21] Speaker 02:
I hope that the two of you appreciate that that was a mistake, a tactical mistake on your part.

[00:22:25] Speaker 02:
You don't divide up time like that.

[00:22:27] Speaker 02:
He was adamant.

[00:22:29] Speaker 02:
He's got three more cases.

[00:22:30] Speaker 02:
That was the point we wanted.

[00:22:31] Speaker 02:
At that point, you should have ceded your time, because he thought he had something really important that was clearly directly on point with what we wanted to talk about.

[00:22:40] Speaker 02:
Over here, I can't fathom for the life of me how three of you are going to argue for one minute each.

[00:22:47] Speaker 02:
I expect you to stand up, tell me the name of the firm you're with, who else is at council table with you, and all the formalities.

[00:22:53] Speaker 02:
I will use your one minute that way and then you will sit down afterwards.

[00:22:56] Speaker 02:
That is tactically crazy.

[00:22:58] Speaker 02:
It's not helpful to the court to do that.

[00:23:01] Speaker 02:
Go ahead.

[00:23:02] Speaker 04:
I apologize for that, Your Honor.

[00:23:04] Speaker 04:
I will address the question head on regarding the petitioner's argument.

[00:23:08] Speaker 02:
No, you didn't listen.

[00:23:08] Speaker 02:
You start with who you are, what firm you're with, and who else is at council table with you.

[00:23:12] Speaker 04:
I apologize, Your Honor.

[00:23:13] Speaker 04:
I'm with the defendant of the United States.

[00:23:15] Speaker 04:
My name is Ming Yu Oh.

[00:23:16] Speaker 04:
I'm a trial attorney with the Department of Justice.

[00:23:19] Speaker 04:
I'll start, I guess, with what the central issue was that petitioners were addressing regarding their point of view that domestic production should decide the issue on standing.

[00:23:29] Speaker 04:
And I do want to point to 19 CFR 351.213, which we think defeats that point because it specifically requires domestic producers to indicate why they want the review request.

[00:23:42] Speaker 03:
Do you have the JA site for the request that's at issue?

[00:23:45] Speaker 04:
I do.

[00:23:46] Speaker 04:
It's Appendix 143, I believe, and we cite it on page 10 in our brief.

[00:23:51] Speaker 03:
Right.

[00:23:51] Speaker 03:
And I've been looking at that.

[00:23:53] Speaker 03:
I don't see any reference to why at all.

[00:23:57] Speaker 03:
I mean, it seems to me.

[00:23:58] Speaker 03:
Tell me if there's something asserted there about why.

[00:24:03] Speaker 04:
Well, so it starts on 143.

[00:24:05] Speaker 04:
Yeah.

[00:24:07] Speaker 03:
It's about six sentences, so it's not very long.

[00:24:09] Speaker 04:
And then it actually continues because it was actually part of a package.

[00:24:12] Speaker 04:
So if you go to

[00:24:13] Speaker 04:
They attach a brief.

[00:24:15] Speaker 04:
Actually, I'm sorry.

[00:24:16] Speaker 04:
It wasn't part of the initiating petition.

[00:24:17] Speaker 04:
It came a few days later, because there they do express why.

[00:24:20] Speaker 04:
And that was starting on page 171 of the application.

[00:24:23] Speaker 04:
171?

[00:24:23] Speaker 04:
171, correct.

[00:24:25] Speaker 04:
Judge Toronto.

[00:24:26] Speaker 02:
And is this brief considered part of the request?

[00:24:31] Speaker 04:
I believe it's like supplementary information in support of the initiating petition, because it just came, I think, five days after the initiating petition.

[00:24:38] Speaker 04:
So they attach this 10-page brief.

[00:24:40] Speaker 04:
We highlight two points on appendix page 172.

[00:24:43] Speaker 04:
At the top of the page of the first full paragraph, NMGGC wants to take this opportunity to express why investigating harmony is important to the ability of NMGGC and to similar garlic producers throughout New Mexico to compete in the fresh garlic market.

[00:25:03] Speaker 04:
So there they go on to extensively explain why, at least on the face of it, they are requesting the review

[00:25:10] Speaker 04:
I do want to point out one thing which we don't mention in our brief because it did come up during the petitioner's argument.

[00:25:15] Speaker 04:
If you look at EPPX page 179, which is the last page of their brief in support of their initiating petition, they go through great lengths to talk about harmony and its affiliations with FGPA and about how that suspicious relationship should raise commerce's concern.

[00:25:32] Speaker 04:
And what they do when addressing their own interest is this is the last sentence right before the conclusion.

[00:25:39] Speaker 02:
What page were you on?

[00:25:40] Speaker 04:
APPX 179.

[00:25:45] Speaker 04:
In this respect, the regulations make clear the department may disregard views of domestic producers who are also importers of the subject merchandise and domestic producers who are related to such importers.

[00:25:56] Speaker 04:
I think right there that kind of encapsulates this idea that if there's some type of, you know, questionable relationship.

[00:26:04] Speaker 03:
And it's citing

[00:26:08] Speaker 03:
Section 732C4Bii.

[00:26:11] Speaker 03:
What is that in 19 USC terms?

[00:26:18] Speaker 04:
I'm not precisely sure.

[00:26:19] Speaker 04:
I'm sorry.

[00:26:20] Speaker 03:
Well, because it matters whether we're talking about the petition or administrative review.

[00:26:24] Speaker 03:
Undoubtedly, at the petition stage, there's a massive inquiry, ultimately decided by the International Trade Commission, about the domestic industry.

[00:26:35] Speaker 03:
Correct.

[00:26:35] Speaker 03:
There's no such inquiry at the administrative review.

[00:26:38] Speaker 03:
If this is about the initial anti-dumping duty petition stage, it would be significantly more limited.

[00:26:50] Speaker 04:
So in the petition stage, Judge Charanta, you are correct that the ITC, the International Trade Commission, does regularly go behind the face of the petition to look at the credibility of the

[00:27:03] Speaker 04:
domestic-interested parties' interest in the review petition itself.

[00:27:08] Speaker 04:
But we think that the law makes clear that that same interest is important during the credibility determinations for the administrative review process as well.

[00:27:17] Speaker 04:
And we think it would be a bit unusual if you can only ask that question in the first instance regarding the initiation of the anti-dumping duty order, but then you can no longer make that inquiry for administrative reviews of that order.

[00:27:28] Speaker 04:
We think that would be a disconnect.

[00:27:30] Speaker 04:
And two authorities that I think would be helpful to the court in this regard

[00:27:33] Speaker 04:
And that's kind of been the law before the trade court in Shandong Rongxin and the Brothers case that we cite in our brief.

[00:27:38] Speaker 04:
I think it's page 43 of our brief, where they do talk about the legislative history behind the domestic interested party statute with respect to this case.

[00:27:49] Speaker 03:
And the 732 is, in fact, 1673A.

[00:27:52] Speaker 03:
So it's actually not about the administration.

[00:27:55] Speaker 04:
It's about the petition, correct, Judge.

[00:27:58] Speaker 04:
But the case law makes clear, and the legislative history makes clear, that the why actually is important.

[00:28:02] Speaker 04:
Because the reason why the domestic interest party provision was phrased as the way it was was because they wanted to ensure that parties that had no stake in the result of the investigation wouldn't be filing petitions that would eviscerate commerce's resources when it could be better spent on other issues that they had to address.

[00:28:18] Speaker 03:
Why isn't I produce garlic here isn't enough to give them a stake under the statute?

[00:28:27] Speaker 04:
Well, in addition to that, under the regulation, they would have to state the why.

[00:28:31] Speaker 04:
So 19 CFR 351.213b says, OK, so you are a domestic producer.

[00:28:37] Speaker 04:
And then it says in the conjunctive, what is your interest?

[00:28:40] Speaker 04:
So you actually have to say, I am a domestic producer, and here is my interest.

[00:28:44] Speaker 03:
Do you also have the view that the validity of that piece of the regulation has not been challenged here?

[00:28:52] Speaker 04:
It has not been challenged, Judge.

[00:28:53] Speaker 04:
And I think the briefing will show that.

[00:28:55] Speaker 04:
Um, and that's actually what we rely on because at the end of the day, I'm sorry, just to complete it.

[00:29:00] Speaker 03:
So the issues and decisions memo says here are the three things that we think were lied about.

[00:29:05] Speaker 03:
Um, do some of those appear in this document or are they other things?

[00:29:10] Speaker 03:
The falsehoods, the falsehoods.

[00:29:13] Speaker 03:
I'm sorry.

[00:29:13] Speaker 03:
Isn't there a one, two, three in the issues and decisions memo that says here are the three, um, assertions which we're gathering from those

[00:29:24] Speaker 03:
a whole lot of little footnotes citing to letters and things.

[00:29:28] Speaker 03:
There are three assertions that Commerce said you lied about these things when you made these assertions.

[00:29:34] Speaker 03:
Are any of those assertions in this document 171 to 179?

[00:29:38] Speaker 03:
Doesn't that kind of matter under the regulation?

[00:29:49] Speaker 04:
I think it would, but I think it's actually a progressive issue throughout the entirety of the review.

[00:29:54] Speaker 04:
It was baked into the entire review.

[00:29:56] Speaker 04:
If we're talking about what their stating their interest is.

[00:29:58] Speaker 03:
Here's what I guess I'm trying to focus on and why I came to this.

[00:30:03] Speaker 03:
Your brief makes a very broad brush argument.

[00:30:06] Speaker 03:
We have inherent authority to respond to lies to us, even if

[00:30:18] Speaker 03:
under this broad brush theory, the lies are immaterial.

[00:30:22] Speaker 03:
And even if when we respond under 1677E by getting rid of every credibility-based piece of evidence from the liar, the fact, the only facts relevant remain established.

[00:30:38] Speaker 03:
And it seems to me the one possibility of you're having a narrower position than that

[00:30:45] Speaker 03:
is the regulation, the one that we have discussed.

[00:30:49] Speaker 03:
And so it might matter whether the lies were in the document covered by the regulation, as opposed to other things.

[00:30:58] Speaker 04:
And I think one case that might be helpful would be the American Society for Prevention of Cruelty to Animals that we cite in our brief, where the DC Circuit actually evaluated the question of standing under the Endangered Species Act.

[00:31:09] Speaker 04:
And I recognize it's a different statute.

[00:31:11] Speaker 04:
But again, it's a statutory-based standing.

[00:31:13] Speaker 04:
We're also dealing with statutory-based standing in that case.

[00:31:16] Speaker 04:
In that case, the parties proceeded all the way to trial, where it was the trial judge that held, after observing the witness on the stand, that his interest in the review under the Endangered Species Act, because he was a paid plaintiff, because he insistently lied, because his motivations were questionable, the court at trial said, you no longer have standing.

[00:31:35] Speaker 04:
So the standing inquiry isn't necessarily limited just to the initiating petition.

[00:31:39] Speaker 03:
Right, but what I'm having trouble with, it seems to me,

[00:31:41] Speaker 03:
Let's assume for purposes of this question that there is evidence from Harmony establishing beyond any doubt that the New Mexico growers produced a like kind product standing done over indisputable.

[00:32:00] Speaker 03:
Assume that that's right.

[00:32:02] Speaker 03:
Nevertheless, we've been discussing quite a lot this morning about this piece of the regulation that says you have to tell us why, which it seems to me

[00:32:11] Speaker 03:
cannot meaningfully go to standing in the statutory sense, interested party.

[00:32:17] Speaker 03:
But nevertheless, an unchallenged regulation is a communication that the agency is interested in this subject.

[00:32:26] Speaker 03:
And that regulation says, tell us why in this document.

[00:32:33] Speaker 03:
Was there a lie in this document?

[00:32:36] Speaker 04:
And to be fair, I don't think the agency treated the regulation as limiting them only to one document.

[00:32:42] Speaker 04:
I think if they're going to say, what is your interest in the review?

[00:32:46] Speaker 04:
And at the heart of it, that interest could evolve or change throughout the course of the review.

[00:32:52] Speaker 04:
And at those various points, if the interest, the stated interest, during the course of the review is undermined by the record evidence, Commerce should have the ability, broad-based authority, to say,

[00:33:04] Speaker 04:
You've repeatedly lied to us.

[00:33:06] Speaker 04:
You've undermined the integrity of the proceedings.

[00:33:07] Speaker 03:
And to get to that conclusion, they relied on that TKS line of authority that says... Right, but TKS and Alberta were very specifically about the foreign producer or exporter... It was.

[00:33:18] Speaker 03:
...whose assertions about either affiliation with a government-wide entity or what they did were absolutely the central issue in the administrative review.

[00:33:29] Speaker 03:
or yes, in TKS, Alberta gas was not an administrative review.

[00:33:34] Speaker 03:
It was the initial proceeding where the domestic parties effect on domestic industry was crucial.

[00:33:41] Speaker 03:
We don't have either of those two things.

[00:33:43] Speaker 03:
We have the filer of a request under 1675 who apparently beyond dispute meets the statutory standard of producing domestic like products.

[00:33:56] Speaker 04:
Right, and I believe that Commerce did not question that part of it.

[00:34:00] Speaker 04:
What they did was they said under the regulation, it's two-pronged.

[00:34:03] Speaker 04:
It's domestic production and credible interest in the review pursuits of the regulation.

[00:34:08] Speaker 03:
And when they found that... I'm sorry, the regulation doesn't say some interest more than domestic-like product.

[00:34:15] Speaker 03:
It just says, tell us honestly why you desire the review.

[00:34:22] Speaker 03:
And it seems to me it's perfectly possible to lie about

[00:34:26] Speaker 03:
your statement, why, without that statement being a false statement, if it was yours.

[00:34:32] Speaker 03:
In other words, I'm going to keep using this word.

[00:34:35] Speaker 03:
It was a contrived assertion, even if it was a true assertion about the underlying interest that there could have been, but it wasn't your real interest.

[00:34:45] Speaker 03:
You had a different interest.

[00:34:47] Speaker 04:
Right.

[00:34:47] Speaker 04:
But the way the regulation is stated is actually in the conjunctive.

[00:34:50] Speaker 04:
It's and.

[00:34:51] Speaker 04:
So it can't just be redundant of the previous statement that you must be a domestic producer

[00:34:59] Speaker 04:
which also means you have an interest in the review.

[00:35:01] Speaker 04:
It says you must be a domestic producer, and you must also state what you're interested in the review.

[00:35:05] Speaker 04:
So we think that the regulation is best read as two separate requirements, which is why I think NMGGC understood that and also supplemented.

[00:35:14] Speaker 03:
With all of that kind of legal superstructure around it, you may have answered this, in which case I'll just say it again so that I remember.

[00:35:23] Speaker 03:
Is there a lie in the document 171 to 179?

[00:35:29] Speaker 04:
This stated interest regarding the review of Harmony on behalf of a purported domestic interested party in totality is false because what the record evidence shows is that NMGGC was consisting of paid plaintiffs who were discovered by an attorney representing Chinese garlic clients

[00:35:47] Speaker 04:
looking for domestic parties to essentially stand in the shoes of a domestic producer to essentially request a petition that they couldn't have otherwise requested, because foreign exporters aren't allowed to petition commerce to begin a review of a foreign exporting rival.

[00:35:59] Speaker 04:
That's what they said.

[00:36:00] Speaker 04:
But Crawford and Katz could have.

[00:36:01] Speaker 03:
If they were independent, yes they could.

[00:36:06] Speaker 04:
And to be fair, Judge Toronto, I think if those were the facts of the case, Commerce probably wouldn't have dug that deep because the record evidence wouldn't have shown this treasure trove of documents showing an intent to manipulate Commerce's review process.

[00:36:19] Speaker 04:
At the end of the day, that's what this case is about.

[00:36:22] Speaker 04:
Commerce needed to affect the statute and use this case's authority regarding TKS and home products to defend the integrity of its review process.

[00:36:29] Speaker 04:
If reviews are like this is allowed, we're basically inviting other parties to undermine commerce's review authority.

[00:36:35] Speaker 04:
And we think that Congress never intended that outcome.

[00:36:39] Speaker 04:
I see that my time is up.

[00:36:41] Speaker 04:
We respectfully request the court affirm the judgment of the trial court in this case.

[00:36:46] Speaker 02:
Thank you.

[00:36:47] Speaker 02:
They've got a lot more people coming, I think.

[00:36:50] Speaker 02:
Mr. Herman?

[00:36:55] Speaker 06:
Good morning.

[00:36:56] Speaker 06:
May it please the Court, John Herman with Kelly Dry and Warren on behalf of the Appalee's Fresh Garlic Producers Association.

[00:37:03] Speaker 06:
Since my time is short, I'd like to refer the court to one portion of the regulation, 351-213-B2.

[00:37:10] Speaker 06:
That is the portion of the regulation that states that a foreign producer or exporter may only request a review of itself.

[00:37:21] Speaker 06:
What's going on here is that you have, as counsel for the United States just indicated, you have a purported domestic producer,

[00:37:30] Speaker 06:
Standing in the shoes and putting forward a review request on behalf of a Chinese entity that it otherwise would not have been able to make With respect to your question judge Toronto regarding whether there were any misrepresentations in the request for an administrative review I would say yes absolutely you mentioned the three findings that the Commerce Department made in its issues and decision memo and

[00:37:55] Speaker 06:
The first of which was whether Chinese exporters and businessmen were involved in the NMGGC review request.

[00:38:02] Speaker 06:
That clearly was the reason that the request went forward.

[00:38:05] Speaker 06:
If you look at the administrative record- Mr. Harmon, your time is up.

[00:38:09] Speaker 06:
Thank you very much.

[00:38:10] Speaker 02:
I'll let you go over.

[00:38:11] Speaker 02:
Mr. Marshak.

[00:38:15] Speaker 01:
Ned Marshak on behalf of Harmony, Your Honor.

[00:38:18] Speaker 01:
There were lies in the request and the second letter on appendix 174, 175,

[00:38:24] Speaker 01:
There was a claim, quote, during the 20th AR, Mr. Crawford was scared off and withdrew his request that the department review Harmony if the private investigators were to attempt to inspect his facility and prior to his business.

[00:38:36] Speaker 01:
That's one of the three laws.

[00:38:37] Speaker 01:
That's in Appendix 174, 175.

[00:38:41] Speaker 01:
Second, in the original request, Mr. Montoya on behalf of the NMGG said, the undersigned is handling this case independent from any member of this firm for the purpose of avoiding the appearance of a conflict of interest.

[00:38:54] Speaker 01:
That was a second law, Your Honor.

[00:38:58] Speaker 01:
He was handling it under the direction of Mr. Youm, who was counsel for the QTF entity, and the CIT actually

[00:39:05] Speaker 01:
Looked at that, that one wasn't one of the three, but it was very, very critical.

[00:39:10] Speaker 01:
This case was handled on behalf of the QTF entity.

[00:39:13] Speaker 01:
It was not independent.

[00:39:15] Speaker 01:
It was always on the behalf of the QTF entity, the Chinese exporter, and they were the real parties of interest.

[00:39:21] Speaker 01:
So in the original document, the original document, you have two flat-out lies.

[00:39:26] Speaker 01:
Thank you, Your Honor.

[00:39:27] Speaker 02:
Mr. Marshak and Mr. Alonso, we'll give you two minutes of rebuttal time.

[00:39:35] Speaker 08:
Thank you, Your Honor.

[00:39:36] Speaker 08:
I did find the answer to the one question, notably from Justice Toronto.

[00:39:40] Speaker 08:
In the CIT opinion, APPX 33, the Judge Barnett states the why that was listed by Mr. Crawford as false.

[00:39:50] Speaker 08:
Why investigating harmony was important to the ability of the coalition and to similar garlic producers throughout New Mexico to compete in the fresh garlic market.

[00:40:01] Speaker 08:
So this is from Judge Barnett, APPX 33, to compete in the fresh garlic market, which, of course, makes sense for a garlic farmer, which, of course, Mr. Crawford is.

[00:40:12] Speaker 03:
Now, the Shang Don case is mentioned by- Just to be clear, the letter from 171 to 179 introduces its reason for being as stating the reasons why we're participating, which suggests that every word that follows is also about that subject.

[00:40:31] Speaker 03:
including the words about being scared off Administrative Review 20.

[00:40:37] Speaker 03:
Which is one of the express issues and decisions specified lies.

[00:40:43] Speaker 08:
Your Honor, the actual review is 143-144.

[00:40:45] Speaker 08:
APPX 143-144.

[00:40:48] Speaker 03:
That doesn't contain a statement of why at all.

[00:40:52] Speaker 03:
Not a word, does it?

[00:40:53] Speaker 08:
That I'm not sure about.

[00:40:56] Speaker 08:
That I'm not sure about.

[00:40:57] Speaker 08:
I thought that was what Judge Barnett was quoting here.

[00:41:00] Speaker 08:
From the opinion, but perhaps Perhaps he's actually referring to what you but the 171 is a supplemental filing that comes after the initial review request And I don't know whether 143 and 144 actually supple.

[00:41:16] Speaker 03:
It's the supplemental comments.

[00:41:17] Speaker 08:
It's the 171 179 the judgment that was quoting okay, and That's where he's listing the why being to compete in the fresh garlic market

[00:41:28] Speaker 08:
That's what he's identifying in his final decision.

[00:41:30] Speaker 08:
That's what he's looking at as to why.

[00:41:32] Speaker 08:
Which we believe is not only true, but actually doesn't matter.

[00:41:35] Speaker 08:
Because again, there's no requirement anywhere that there be a motive.

[00:41:39] Speaker 08:
Now, and I can actually speak about that, but there's not really enough time.

[00:41:44] Speaker 08:
I'm going to move to the Shang Don case, which the US brought up.

[00:41:49] Speaker 08:
The Shang Don case does not require a stake for a domestic producer.

[00:41:54] Speaker 08:
It talks about a stake in the limited context of an initial petition for a review request.

[00:42:00] Speaker 08:
I'm sorry, an initial petition to establish an anti-dumping duty order, which is under a separate section than the annual review requests that come along later after the order is in place.

[00:42:11] Speaker 08:
So that's why Shang Don does not support any need for a state.

[00:42:14] Speaker 02:
Thank you, Mr. Alonso.

[00:42:15] Speaker 02:
You've exceeded your time again.

[00:42:17] Speaker 02:
Thank you, Your Honor.

[00:42:18] Speaker 02:
We thank the lawyers.

[00:42:19] Speaker 02:
The case is taken under submission.