[00:00:00] Speaker 02:
27 CSC sugar LLC against the United States.

[00:00:06] Speaker 02:
Mr. Diedrich.

[00:00:08] Speaker 05:
Thank you, your honor may please the court.

[00:00:11] Speaker 05:
This court applies longstanding Supreme court administrative law precedent to the commerce department's actions under the tariff act.

[00:00:19] Speaker 05:
When commerce takes action unbacked by a reasoned explanation, as it did here, that action cannot stand to start.

[00:00:27] Speaker 05:
Commerce must consider reasonable alternatives.

[00:00:30] Speaker 05:
The sugar at issue here is between 99.2 and 99.5 polarity, including Estandar.

[00:00:38] Speaker 05:
Under the original suspension agreements, Estandar entered the US as, quote, other sugar.

[00:00:44] Speaker 05:
But it bypassed domestic refiners and was sold directly to consumers, unfairly competing with domestic refined sugar.

[00:00:53] Speaker 05:
To address this problem, multiple alternatives were on the table, such as

[00:00:58] Speaker 05:
keep the historic and relied upon 99.5 dividing line and require all sugar under that line, including a standar, be shipped in bulk.

[00:01:08] Speaker 05:
Because bulk ships... Council, let me ask you.

[00:01:11] Speaker 00:
One of the issues that you raise is that you say that the big problem here or one of the big problems is that the

[00:01:21] Speaker 00:
2020 amendments were justified largely on the same terms as the 2017 amendments.

[00:01:27] Speaker 00:
Um, but, but no party raised substantially different arguments in 2020 than were raised in the 2017 comments, which, uh, which commerce did address, correct?

[00:01:44] Speaker 05:
No, no, your honor in the, in the 2017 proceeding,

[00:01:50] Speaker 05:
We certainly don't concede that everything was addressed there.

[00:01:53] Speaker 05:
And importantly, the litigation on the 2017 record only reached a point where Judge Gordon was able to vacate that amendment on a procedural defect for the ex parte memorandum.

[00:02:07] Speaker 00:
But it was a procedural defect that had nothing to do with Commerce's addressing of the comments that were presented to it in 2017, correct?

[00:02:20] Speaker 05:
No, Your Honor, with all due respect, I disagree with that, because the problem was that CSC Sugar did not have the ability to comment on everything that influenced Congress's decision making.

[00:02:32] Speaker 00:
However, the more... Everything other than the ex parte comments, they did have an opportunity to comment on, right?

[00:02:40] Speaker 05:
Well, Your Honor, in 2017, that may be... I think that's a yes or no answer.

[00:02:46] Speaker 05:
In 2017, yes.

[00:02:47] Speaker 05:
But the record in 2020 is not the same and cannot be the same.

[00:02:52] Speaker 05:
And in fact, commerce takes that position.

[00:02:55] Speaker 05:
But whether in 2017 or in 2020, the fundamental defect is that the Commerce Department did not adequately explain its chosen path.

[00:03:07] Speaker 00:
So just to return to the alternative... Well, because of the ex parte comments, right, in 2017, I'm just trying to understand what is the complaint.

[00:03:16] Speaker 00:
So in 2017, they didn't adequately explain their chosen path because they did not explain or comment on the ex parte materials and discussions.

[00:03:30] Speaker 00:
In 2020, they did, right?

[00:03:33] Speaker 00:
They disclosed those, commented on them, but then with respect to the other issues, as to which nobody raised new arguments, they continued to,

[00:03:46] Speaker 00:
to stick to their original analysis, right?

[00:03:52] Speaker 05:
I don't think that's correct, Your Honor.

[00:03:55] Speaker 05:
And the problem is that the 2017 memoranda, including the explanation that Commerce provided, was never adjudicated for its adequacy.

[00:04:09] Speaker 05:
And that's what's up on review here now.

[00:04:14] Speaker 05:
And the reason why bulk shipment of sugar, it was an alternative that commerce needed to consider was because bulk shipment of sugar is not food grade and must go to domestic refiners before being filled to consumers.

[00:04:28] Speaker 05:
And nowhere on the record in 2020 did commerce consider this alternative independently.

[00:04:33] Speaker 05:
Nowhere in fact did it analyze bulk shipment of a standard, the problematic sugar at all.

[00:04:38] Speaker 05:
Now, although commerce's memos purport to consider both alternatives,

[00:04:43] Speaker 05:
meaning a polarity definition change and a bulk shipment option.

[00:04:47] Speaker 05:
Those references are insufficient for two reasons.

[00:04:50] Speaker 00:
First off.

[00:04:51] Speaker 00:
I hate to pester you, but you still haven't answered my question.

[00:04:54] Speaker 00:
Were there new comments in 2020?

[00:04:59] Speaker 05:
Yes, Your Honor.

[00:05:01] Speaker 00:
All right.

[00:05:01] Speaker 00:
And where in the record did those appear?

[00:05:04] Speaker 05:
So there would be a number of different comments.

[00:05:10] Speaker 05:
A CSC Sugar's comments, for example, at Appendix 161... But were they substantially different?

[00:05:15] Speaker 00:
That's my point.

[00:05:17] Speaker 05:
Yes, Your Honor.

[00:05:18] Speaker 05:
They raised significant process and procedure arguments in light of... Different than the ones in 2017?

[00:05:24] Speaker 00:
Yes, Your Honor.

[00:05:25] Speaker 00:
Come on.

[00:05:25] Speaker 00:
Do you understand what I'm trying to pin down?

[00:05:28] Speaker 00:
Yes, Your Honor.

[00:05:30] Speaker 00:
Okay.

[00:05:30] Speaker 00:
And what are the differences?

[00:05:33] Speaker 05:
With respect to the adequate explanation, they have some similarities.

[00:05:39] Speaker 05:
uh... with respect to the process and the lack of reason decision-making there are differences you could not make those twenty twenty arguments in twenty seventeen because the twenty seventeen flaws had not been revealed at the time of commenting in twenty seventeen

[00:05:58] Speaker 00:
You got to answer my question.

[00:06:00] Speaker 00:
So what you addressed in 2020 that was different were the exact flaws that Congress, I mean that commerce tried to fix in 2020, correct?

[00:06:10] Speaker 00:
The ex parte materials and discussions.

[00:06:13] Speaker 00:
That was different from both sides.

[00:06:17] Speaker 05:
Your honor, I apologize if I'm not understanding your question correctly.

[00:06:21] Speaker 05:
That is one part of our claim, but it is an independent basis for

[00:06:27] Speaker 05:
vacating the 2020 amendments which is what commerce did in 2020 in an attempt to explain its justification that is separate and apart from any connection to the 2017 amendment but it can be if your honors are so inclined informed by the background but it is an independent basis for vacator this time around and so

[00:06:53] Speaker 05:
that didn't really pre turn them the reason why the references to both the polarity definition change and the book shipment are insufficient in the memorandum and in the amendment are for two reasons first of all if alternatives can be analyzed independently they must be and that is what the supreme court held in the doctor case the hsv regions where the government had argued that that two separate alternatives were importantly linked the court said that the government's argument misses the point and quote

[00:07:24] Speaker 05:
The fact that there may be a valid reason not to separate options does not establish that the agency considered that option or that such consideration was unnecessary.

[00:07:33] Speaker 05:
Second, these options in this case are not cumulative even if they appear to be at first glance.

[00:07:40] Speaker 05:
Although the memoranda always consider bulk shipment of, quote, other sugar, they always simultaneously change the other sugar definition.

[00:07:48] Speaker 05:
And by changing two variables at once, the memos only consider

[00:07:53] Speaker 05:
uh... bulk shipment of sugar under ninety nine point two which is not a standard and not the sugar that commerce said was problematic for that show that commerce could not have reason to be determined that the change in polarity is easier to monitor than the bulk shipment requirement uh... you your honor commerce could eventually reasonably determine that but that is not before the court now the challenge that cfc sugar is raising is that commerce did not

[00:08:21] Speaker 05:
consider on this record, the alternatives that it needed to consider.

[00:08:27] Speaker 05:
And before this court or before commerce can commit to a particular policy option, it has to consider reasonable alternatives.

[00:08:38] Speaker 05:
The adequacy of explanation is separate from whether or not a chosen option is lawful or backed by factual evidence.

[00:08:47] Speaker 05:
Commerce has to satisfy both of those standards for its action

[00:08:51] Speaker 05:
to be valid.

[00:08:55] Speaker 05:
Now, as far as evidence that bulk shipment would solve the standar problem, again, the very problem that Commerce had identified, we can look to party comments, including where CSC Sugar and others have pointed to other countries doing that very thing.

[00:09:16] Speaker 05:
Commerce, in fact, has observed on page appendix 4514

[00:09:21] Speaker 05:
that other countries are doing that and they have not been exporting problematic sugar.

[00:09:27] Speaker 05:
And so as a matter of logic, as a matter of obviousness, which is one way in which the alternative's duty can be triggered, Commerce had to consider these things.

[00:09:40] Speaker 00:
I'm looking at the appendix 2307 where Commerce said,

[00:09:45] Speaker 00:
that we, quote, we also explained that the change in polarity definition facilitates monitoring and verification.

[00:09:53] Speaker 00:
Are you saying that they didn't say that?

[00:09:57] Speaker 05:
Yes, Your Honor.

[00:09:58] Speaker 05:
I'm saying that they did not explain based on evidence and exercising their expertise.

[00:10:05] Speaker 00:
But there are multiple sides to that proposition.

[00:10:08] Speaker 00:
And you're saying they just said it, but you don't think the explanation was good enough?

[00:10:13] Speaker 05:
I'm saying two things, Your Honor.

[00:10:16] Speaker 05:
First of all, yes, that their explanation was not good enough.

[00:10:19] Speaker 05:
It was conclusory.

[00:10:20] Speaker 05:
But second of all, that does not satisfy the duty to consider alternatives.

[00:10:26] Speaker 05:
That is only a justification of its chosen path.

[00:10:29] Speaker 05:
It does not explain what would happen to monitoring or verification if it were to do the bulk shipment only option.

[00:10:36] Speaker 05:
It does not explain why it is rejecting the bulk shipment only option.

[00:10:41] Speaker 05:
And it actually, in fact,

[00:10:43] Speaker 05:
that commerce's chosen path leaves the problem that it had identified partially unaddressed.

[00:10:50] Speaker 05:
In commerce's words, a standard was problematic because it bypassed domestic refiners and was sold directly to consumers.

[00:10:57] Speaker 05:
Yet because the amendments only require bulk shipment of sugar under 99.2, a standard can still bypass domestic refiners just like before.

[00:11:07] Speaker 05:
The duty to provide a sufficient

[00:11:09] Speaker 05:
Explanation, including considering alternatives, is its own legal task, as I mentioned.

[00:11:15] Speaker 00:
Requiring commerce to do that encourages transparency and accountability, and it discourages corner-cutting and provides parties... We have the explanation on JA 2274 where they actually describe Mexico's export licensing system in connection with their explanation, that the polarity definition facilitates monitoring and verification.

[00:11:39] Speaker 05:
Again, Your Honor, that would be an example of where commerce has considered export license changes in connection with the polarity change, but would also need to consider the export license changes in connection with the bulk shipment change, because it does not, it has not explained anyway why it can only do the export license change in connection with polarity.

[00:12:06] Speaker 05:
It doesn't explain why it couldn't also do that or why it doesn't want to do that with respect to the bulk shipment change.

[00:12:16] Speaker 05:
Your Honor, I see that I'm into my rebuttal time.

[00:12:18] Speaker 05:
I'd like to reserve that unless there are additional questions at this time.

[00:12:21] Speaker 00:
I do have one question about this Chevron argument.

[00:12:25] Speaker 00:
Um, Congress is supposed to separately consider public interest factors.

[00:12:31] Speaker 00:
Um, and I, as I see it, you think that because they mentioned public interest, all of a sudden we're in a Chevron framework?

[00:12:39] Speaker 05:
Well, your honor, I, I think that comes up in a little bit of a different way.

[00:12:45] Speaker 05:
Commerce, as you mentioned, of course, has to consider public interest.

[00:12:49] Speaker 05:
The Chevron issue did not arise until the trade court

[00:12:54] Speaker 05:
brought it up on its own in response to our argument that public interest was something that was unambiguous and warranted independent consideration.

[00:13:05] Speaker 00:
Right, but what is the statutory term or phrase that the trades court allegedly incorrectly interpreted?

[00:13:14] Speaker 05:
I mean, 19 USC 1671 C B 1 A. So you're saying that just because

[00:13:23] Speaker 00:
They looked at that, but they didn't interpret the language of the statute.

[00:13:26] Speaker 00:
They simply said, they simply made a finding about whether the commerce's treatment of those public interest factors were reasonable, right?

[00:13:36] Speaker 05:
No, your honor, both commerce and the trade court, excuse me, commerce interpreted that in its memoranda, but it also, anytime an agency applies the law, it necessarily interprets it.

[00:13:50] Speaker 05:
That's something that's part and parcel of American legal jurisprudence.

[00:13:57] Speaker 05:
And the fact that the trade court did not interpret that and knew, but rather said it is accepting what commerce did, that includes commerce's interpretation, which C.S.C.

[00:14:13] Speaker 05:
in the trade court and again on appeal has said that was an unambiguous term and not worthy of deference and the government never responded it and therefore we submit that it waived that argument waived any deference and that the trade court improperly then applied chevron deference anytime an agency actually makes a decision if a court agrees with that decision or find it supported

[00:14:42] Speaker 00:
Um, then Chevron applies?

[00:14:45] Speaker 05:
Well, not necessarily.

[00:14:47] Speaker 05:
This, this case was unique because CSC Sugar had made an argument about interpretation that was not responded to by the government as a respondent.

[00:14:57] Speaker 05:
And that's what, that's what tees this issue up both for the court below and for this court.

[00:15:03] Speaker 00:
Okay.

[00:15:03] Speaker 00:
I'm sorry.

[00:15:03] Speaker 00:
I've used up some of your rebuttal.

[00:15:05] Speaker 02:
No, that's all right.

[00:15:06] Speaker 02:
We'll save the rebuttal time.

[00:15:08] Speaker 02:
Any more questions at the moment?

[00:15:11] Speaker 01:
No.

[00:15:12] Speaker 01:
No.

[00:15:13] Speaker 02:
Okay.

[00:15:13] Speaker 02:
Thank you.

[00:15:14] Speaker 02:
In that case, we'll hear from Mr. Adlestick.

[00:15:17] Speaker 04:
Thank you and may it please the court.

[00:15:19] Speaker 04:
The court should affirm because Commerce fully complied with the law when the agency entered into the 2020 amendments, the suspension agreements on Mexican sugar.

[00:15:29] Speaker 04:
CSE's primary argument is that Commerce did not engage in reasoned decision-making, but the administrative record contains 78 pages of detailed explanation by Commerce.

[00:15:42] Speaker 04:
And this decision making followed a robust administrative process whereby all parties, including CSC, had a full and fair opportunity to comment on a complete record and had an opportunity to put whatever evidence they wanted on this record.

[00:16:01] Speaker 00:
Do you agree, counsel, do you agree though that it really is, that the findings were almost identical to those in 2017?

[00:16:10] Speaker 04:
Yes, Your Honor, and CSC would have this court disregard all 78 pages of that analysis just because Commerce provided the same explanation of substantially the same issues back in 2017, and Commerce did not take the time to rewrite it all from scratch in 2020.

[00:16:31] Speaker 04:
Well, why would Commerce ever do that?

[00:16:35] Speaker 04:
There's no legal requirement for commerce to rewrite anything from scratch.

[00:16:39] Speaker 04:
And at the time, the domestic industry was suffering from a flood of problems associated with the Mexican sugar imports.

[00:16:49] Speaker 04:
And commerce had analyzed the same information, substantially the same comments once before.

[00:16:55] Speaker 04:
Why would commerce take all that time?

[00:16:57] Speaker 00:
Your friend on the other side seems to say that there were new comments that weren't addressed, that even went to some of those same points.

[00:17:06] Speaker 04:
uh... your honor they've identified not uh... that these work that there are the entire thrust of their argument on appeal is that uh... there this was a a mindless copy and paste job and that uh... commerce uh... did not uh... analyze uh... the issue of fresh there was a new assistant secretary at commerce in twenty twenty and he approved the twenty twenty amendment in good faith

[00:17:36] Speaker 04:
based on the record before him, after CSC fully participated in the notice and comment process, and CSC does not identify a single comment that was submitted to Commerce that was not sufficiently addressed by the agency.

[00:17:53] Speaker 01:
Can we, and was it the case job only because the remand was based on a procedural flaw, the failure to maintain a complete record of negotiations?

[00:18:05] Speaker 01:
rather than on the basic issues.

[00:18:09] Speaker 04:
Yes, indeed, Your Honor.

[00:18:10] Speaker 04:
And this is just a matter of good government.

[00:18:13] Speaker 04:
The government has to be able to correct a procedural flaw when one is found to exist.

[00:18:19] Speaker 04:
And that's exactly what the agency did here.

[00:18:22] Speaker 00:
See, apparently... You read the other side as actually making a claim that commerce acted in bad faith.

[00:18:32] Speaker 04:
Well, that's what they would have to argue, and they expressly disclaim any argument of bad faith.

[00:18:40] Speaker 04:
They're essentially asking this court to conclude that commerce did not mean anything it said in those 78 pages because this was a sham in bad faith.

[00:18:51] Speaker 04:
Well, there's no evidence of that, and there's no basis for that argument.

[00:18:56] Speaker 04:
And that's why they've backed away in their reply brief from any suggestion of bad faith here.

[00:19:01] Speaker 04:
Ultimately, commerce had no obligation to take lots of extra time in the face of a domestic industry that was hurting just to rewrite things that were already written on the same issues that were already analyzed and thus delay important relief for the domestic sugar industry.

[00:19:22] Speaker 04:
Reasoned decision-making just doesn't require that.

[00:19:25] Speaker 04:
And Commerce's 78 pages of analysis plainly demonstrate that the agency engaged in reasoned decision making.

[00:19:33] Speaker 04:
Now on CFC's additional argument that Commerce had to consider an alternative, a supposed alternative of just adopting a bulk shipping provision without making a change to the polarity threshold for Mexican sugar, there's no evidence in the record

[00:19:52] Speaker 04:
supporting CFC's proposed alternative.

[00:19:56] Speaker 04:
Commerce had no duty to go down rabbit holes and evaluate theoretical alternatives with no basis in the record.

[00:20:04] Speaker 04:
There's no data.

[00:20:06] Speaker 04:
There's no economic analysis.

[00:20:08] Speaker 04:
There's nothing in this administrative record that would show that the bulk shipping provision standing alone would completely eliminate the harm from Mexican sugar.

[00:20:20] Speaker 04:
And under QVD food,

[00:20:22] Speaker 04:
It was CFC's burden as an interested party to put data on the record if it wanted Commerce to evaluate that.

[00:20:32] Speaker 04:
CFC never did so.

[00:20:34] Speaker 04:
And more broadly, Commerce could not approve the 2020 amendments without a finding that they would completely eliminate the harm from Mexican sugar imports.

[00:20:48] Speaker 04:
The statute says eliminate completely

[00:20:51] Speaker 04:
commerce did not have the luxury of adopting cfc's proposed half-measure when there was no record evidence whatsoever to back it up.

[00:21:01] Speaker 00:
But CFC Sugar says in the reply brief that they're not arguing the absence of substantial evidence, they're arguing a matter of process that commerce just didn't explain the significant alternatives and why they chose what they chose.

[00:21:19] Speaker 04:
Right, well Your Honor,

[00:21:21] Speaker 04:
The agency has no duty to explain supposed alternatives that have no basis in record evidence.

[00:21:29] Speaker 04:
If CFC had submitted record evidence that the bulk shipping provision would have done such an amazing job at eradicating, eliminating completely the problems, supply and price problems associated with Mexican sugar, and it would have been equally easy to monitor

[00:21:49] Speaker 04:
If that evidence had been in the record, I grant you that Commerce would have had an obligation to think about and discuss the matter.

[00:22:00] Speaker 00:
So would either alternative, though, have the same effect?

[00:22:07] Speaker 04:
Well, Your Honor, what we do know is that everyone conceives that both of these provisions tend to help solve the same problem.

[00:22:19] Speaker 04:
What CSC is arguing is that one of the provisions, the bulk shipping provision, provided such complete relief to the domestic industry that it rendered the polarity changes completely redundant, such that under the statute, commerce could have found, without any basis in evidence,

[00:22:48] Speaker 04:
that the bulk shipping provision standing alone that would completely eliminate the harm from the Mexican sugar imports.

[00:23:02] Speaker 04:
But there's just no evidence for that.

[00:23:05] Speaker 04:
And commerce has no obligation under the standard of review or under the

[00:23:13] Speaker 04:
APA cases that have been cited by CSC on this appeal, an agency has no obligation to go down rabbit holes and pursue alternatives when there's no factual record evidence to back it up.

[00:23:28] Speaker 04:
And in fact, there was support in the record for doing both, doing both the polarity changes and the bulk shipping provision.

[00:23:38] Speaker 04:
At appendix pages 1130 and 3548,

[00:23:42] Speaker 04:
uh... there was uh... uh... argument and evidence submitted by uh... fc which my colleague mister salinski may address in in his uh... argument uh... which indicated that the polarity changes and it's the bulk shipping provision increased the likelihood that the twenty twenty amendments would completely eliminate the harm there's just no support for this

[00:24:12] Speaker 04:
theoretical alternative that's not based on any record evidence whatsoever.

[00:24:22] Speaker 04:
And finally, on the public interest question, Your Honor's questions to Mr. Dietrich were right on the money.

[00:24:34] Speaker 04:
There's no Chevron issue here.

[00:24:36] Speaker 04:
There's no statutory interpretation issue here.

[00:24:41] Speaker 04:
The trial court correctly held that CSC had waived the rudiments of this statutory interpretation argument by failing to develop it with citations to pertinent authority, such as Chevron.

[00:24:55] Speaker 04:
And regardless, Congress specifically identified three factors for determining whether a suspension agreement is in the public interest.

[00:25:04] Speaker 04:
Congress decided those.

[00:25:06] Speaker 04:
And there's no dispute that commerce considered

[00:25:10] Speaker 04:
each and every one of the three statutory factors.

[00:25:13] Speaker 04:
And Commerce even went further and discussed the interests of the general public in its decision-making memoranda.

[00:25:21] Speaker 04:
So CSC's arguments about the public interest are wrong, but they're also wrong as a matter of law, and they're also contradicted by the record.

[00:25:35] Speaker 04:
Because Commerce fully complied with the law,

[00:25:38] Speaker 04:
respecting suspension agreements when the agency entered into the 2020 amendments, the court should affirm.

[00:25:45] Speaker 04:
Thank you.

[00:25:47] Speaker 02:
Okay.

[00:25:47] Speaker 02:
Thank you.

[00:25:48] Speaker 02:
Any questions for Mr. Adelschick at the moment?

[00:25:51] Speaker 01:
No.

[00:25:51] Speaker 01:
No.

[00:25:52] Speaker 02:
All right.

[00:25:52] Speaker 02:
We'll hear from Mr. Zylinski.

[00:25:54] Speaker 02:
You've saved two minutes.

[00:25:57] Speaker 03:
Thank you and may it please the court.

[00:25:59] Speaker 03:
I'd like to step back a little bit first and talk about the purpose of a suspension agreement and then maybe address some of your honor's questions from earlier.

[00:26:09] Speaker 03:
The purpose of a suspension agreement is to provide a forward-looking alternative form of remedy for the injuries suffered by the domestic industry from unfair imports.

[00:26:17] Speaker 03:
So here, rather than being subject to the up to 84% duties commerce calculated, the Mexican government and the entire Mexican industry agreed with commerce with the support of the petitioners to instead remedy the injury with the amended suspension agreement.

[00:26:32] Speaker 03:
CSC argues that commerce, the government of Mexico, the entire Mexican industry, and the US industry as a whole should have agreed to fewer obligations to lower the price of certain Mexican sugar.

[00:26:43] Speaker 03:
But as the Court of International Trade held in Imperial Sugar, a desire for low-cost sugar is not a valid interest under the statute.

[00:26:50] Speaker 03:
And a company's inability to continue sourcing low-cost sugar is not a valid harm.

[00:26:56] Speaker 03:
The entire point is to eliminate injurious import, not to encourage their purchase by lowering their price.

[00:27:02] Speaker 03:
Here the record demonstrates that while the 2017 amendments were in effect, they fixed the injury that remained under the original agreements, which you can see at Joint Appendix page 500.

[00:27:11] Speaker 03:
And the domestic industry, including CSC and the dozens of other domestic liquid sugar refiners just like it, were stable.

[00:27:20] Speaker 03:
So it was logical and reasonable that when the original agreements were reimposed and the parties built a record that contained no new evidence to the contrary,

[00:27:28] Speaker 03:
Commerce, the Mexican government, and the entire Mexican industry did not reinvent the wheel.

[00:27:33] Speaker 03:
The 2020 amendments do as much as possible to best ensure the elimination of injury to the domestic industry as a whole, which is what's necessary under the law.

[00:27:41] Speaker 03:
And in reference to Judge Amali, your questions, in the first instance, you asked about what additional evidence there is.

[00:27:50] Speaker 03:
There was no additional evidence absent one page on appendix page 168 that CSE submitted.

[00:27:57] Speaker 03:
which commerce correctly determined was unusable because it came with no explanation and wasn't done in the normal course of business.

[00:28:05] Speaker 03:
And commerce did in fact explain both reasons why it had to move the polarity line and the bulk shipment requirement and that's at appendix page 2307 where it addressed both independently.

[00:28:20] Speaker 03:
So unless your honors have any more questions for me.

[00:28:23] Speaker 02:
Any more questions?

[00:28:25] Speaker 02:
No.

[00:28:26] Speaker 02:
Right.

[00:28:27] Speaker 02:
Thank you.

[00:28:27] Speaker 02:
Then Mr. Diedrich, rebuttal.

[00:28:32] Speaker 05:
Thank you, Your Honor.

[00:28:33] Speaker 05:
First off, the record does show that bulk shipment precludes direct sale to consumers.

[00:28:41] Speaker 05:
The reason why it does so is because that sugar must first go to refiners because if it's packed in bulk, it is not in food grade.

[00:28:50] Speaker 05:
Now, the attorneys for our opponents

[00:28:55] Speaker 05:
are unable to point to any place in the memos or the record where commerce considered bulk shipment of a standard sugar.

[00:29:02] Speaker 05:
That's between 99.2 and 99.5.

[00:29:05] Speaker 05:
The page just cited 2307 does not do that.

[00:29:10] Speaker 05:
As far as the monitoring point is concerned, to test the polarity of sugar at entry, you have to use an instrument known as a polarimeter.

[00:29:20] Speaker 05:
However, if you're shipping in bulk versus shipping in food grade packaging, you only need your eyeballs.

[00:29:28] Speaker 05:
As far as the unusable evidence point, I'd like to respond to that briefly.

[00:29:33] Speaker 05:
CSE Sugar submitted data, including numbers and an explanation accompanying that.

[00:29:41] Speaker 05:
At that point, Commerce's duty was triggered to ensure parties that are fully aware of what information it seeks

[00:29:48] Speaker 05:
the form in which it seeks it, and if a party submits something that is not in a form in which commerce considers it satisfactory, then commerce has a duty to inform the party while the proceedings are still ongoing.

[00:30:04] Speaker 05:
Here, that was not done.

[00:30:05] Speaker 05:
Commerce never said anything about the insufficiency problem until after its decision.

[00:30:12] Speaker 05:
At the bottom line, commerce needed to exercise its expertise.

[00:30:16] Speaker 05:
and must independently analyze each policy option at its effect on price and supply, injury from imports, and party and public interests.

[00:30:26] Speaker 05:
It did none of those three things here, whether in 2020 or in 2017.

[00:30:33] Speaker 05:
And upholding the 2020 amendments on this record, without that adequate explanation, would ignore and eviscerate a separate legal requirement and would redound to the detriment of agency,

[00:30:45] Speaker 05:
uh... reliability accountability and integrity finally your honor uh... there was a brief mention of the assistant secretary of course the secretary was the same throughout these proceedings secretary and there was also a point uh... about the suffering of the domestic industry that that is that jives with our general theme of the case which is that the twenty twenty amendments uh... or rush

[00:31:15] Speaker 05:
that commerce was responding to status quo.

[00:31:19] Speaker 05:
But even setting that aside, it's important to remember that this is not a bad faith case.

[00:31:24] Speaker 05:
CSC Sugar has not raised any questions in 2020 about the motives of any agency official.

[00:31:30] Speaker 05:
This case is judged under the normal requirements that the Supreme Court and this court in similar cases have set forth for this type of dispute.

[00:31:41] Speaker 05:
May I quickly finish, Your Honor?

[00:31:45] Speaker 02:
Yes, please do.

[00:31:46] Speaker 05:
The question is whether Commerce has supplied an adequate explanation and otherwise undertaken a reasoned decision-making process.

[00:31:57] Speaker 05:
Commerce has not done so here.

[00:31:59] Speaker 05:
The court should vacate the 2020 amendments and remand to Commerce.

[00:32:04] Speaker 05:
Thank you very much.

[00:32:05] Speaker 02:
Any questions for Mr. Diedrich?

[00:32:08] Speaker 02:
No.

[00:32:09] Speaker 02:
Okay.

[00:32:09] Speaker 02:
Thank you.

[00:32:10] Speaker 02:
Thanks to all counsel.

[00:32:12] Speaker 02:
The case is taken under submission.

[00:32:14] Speaker 02:
That concludes this panel's argued cases for this session.