[00:00:00] Speaker 01:
Okay, the next order cases number 21, 1489, YC Rubber Company of North America against the United States.

[00:00:09] Speaker 01:
This is Gilles.

[00:00:33] Speaker 02:
May it please the court.

[00:00:35] Speaker 02:
This case primarily concerns one key issue, the question of whether the Commerce Department may rely upon only one calculated margin determining the all others rate for several companies in anti-dubbing administrative reviews.

[00:00:48] Speaker 04:
Can I ask you to just begin with a kind of more of a bless the housekeeping matter, which I would like input from the other side and when they get up to it, which is assume hypothetically we were to agree with you on issue one.

[00:01:03] Speaker 04:
What happens then?

[00:01:05] Speaker 04:
A remand and the board gets, I'm sorry, the Commerce Department gets a do-over, correctly applying, in your view, the statutory provision?

[00:01:15] Speaker 04:
Yes, that's correct.

[00:01:16] Speaker 04:
And my second part of that question, so you can deal with both, is what happens, there are four issues raised in this case.

[00:01:23] Speaker 04:
What happens to the other three issues?

[00:01:26] Speaker 04:
Are they gone?

[00:01:27] Speaker 04:
Are they still alive in particular?

[00:01:30] Speaker 04:
Issue four, can we resolve that based on this or does that go along with the remand?

[00:01:36] Speaker 02:
Thank you, Your Honor.

[00:01:37] Speaker 02:
First to answer the first question, yes, Your Honor.

[00:01:39] Speaker 02:
We believe that the correct thing for this Court to do would be to reverse and remand to the Commerce Department, first to CIT, with an instruction the Commerce Department should look at the record before it and select the second mandatory respondent.

[00:01:52] Speaker 02:
And that's required, Your Honor, as we put forward in our briefs, in order to calculate the all others rate pursuant to section 1673 DC 5.

[00:02:00] Speaker 02:
That's not what Commerce did in the administrative review before this Court and the trial Court below.

[00:02:05] Speaker 02:
With respect to your second question, Your Honor, I have planned to focus primarily on the first argument today.

[00:02:10] Speaker 02:
However, I do think that this court's remand would also take into account our second argument, which really is a question, Your Honor, of whether the calculation of one rate is representative of all the explorers and producers.

[00:02:21] Speaker 04:
Well, does issue two, for purposes of just what we have to do on this appeal, do issues two, three, and four, I'm sorry, do issues two, three, and four

[00:02:30] Speaker 04:
disappear, or at least for the moment disappear, in terms of what we resolve and remand, if we agree with you on the statutory construction issue?

[00:02:38] Speaker 02:
No, Your Honor, I do not believe they do.

[00:02:39] Speaker 02:
I believe issue two would be resolved, which is what I would call the representativeness argument, pursuant to, for example, this Court's precedent in Albemarle.

[00:02:47] Speaker 02:
However, issue three has to do with whether or not certain producers or exporters should have been rescinded entirely, and that, as this Court very well knows,

[00:02:54] Speaker 02:
is pursuant to this court's holding in Glassian and Moore, in which this court said that the previous interpretation of its own regulation was not reasonable, Your Honor.

[00:03:04] Speaker 04:
Yeah, but if we've already vacated what was done below in the first instance, I don't want to take too much of your time.

[00:03:13] Speaker 04:
I guess I'm just not seeing how two, three, and maybe four are still alive for purposes of our needing to decide on appeal if we agree with you on issue one.

[00:03:23] Speaker 03:
Yes, I would have the same concern.

[00:03:25] Speaker 03:
It would seem to me that if we ruled in your favor on issue one, two and three would go away.

[00:03:30] Speaker 03:
Perhaps we'd have to look at four.

[00:03:33] Speaker 03:
But it would seem that two and three would go away.

[00:03:35] Speaker 02:
I just want to make sure we're talking about the same thing, Your Honors.

[00:03:37] Speaker 02:
And I believe issue three, the issue three that I would refer this court to, is the question of whether there should have been rescission with respect to certain producers' exports.

[00:03:45] Speaker 02:
So they would have been out entirely of the review.

[00:03:47] Speaker 02:
So there wouldn't be a question, Your Honor,

[00:03:49] Speaker 02:
whether they would have even gotten a rate at all.

[00:03:52] Speaker 02:
And so that issue, pursuant to this Court's holding in Glaston and Moore, as we suggested in our briefs, that issue, I think, should also be decided by this Court.

[00:04:00] Speaker 02:
And that is, if rescission was going to be done by the Commerce Department, and we agree that they have a reasonableness standard there, they were supposed to look, in terms of this Court's interpretation under Glaston and Moore, at one, whether or not the parties knew the previous rates ruling, and they did not at the time,

[00:04:15] Speaker 02:
Second, whether or not some expenditure of resources had been carried out by the Commerce Department.

[00:04:21] Speaker 02:
And it's clear in the record before this court and the trial court below that there was, in fact, no expenditure of resources.

[00:04:26] Speaker 02:
The parties had submitted what was required of them, which was a so-called separate rate certification, Your Honors, but there were no supplemental questionnaires issued by Commerce.

[00:04:35] Speaker 02:
No further work was required of the Commerce Department

[00:04:38] Speaker 02:
in order to assess whether rescission should be granted.

[00:04:41] Speaker 02:
And so for that reason, we had asked those specific issues, the parties that submitted rescission requests, that should be reversed and remanded, and commerce should be instructed to look at the record again and determine whether or not rescission should be granted for those parties who requested rescission.

[00:04:56] Speaker 02:
And so I think that issue, unfortunately, Your Honor, cannot be decided by the statutory question.

[00:05:00] Speaker 02:
I do want to focus on that, Your Honor, which is, as I started off, I believe that section 1673, D.C.

[00:05:04] Speaker 02:
5 requires in the plain text

[00:05:08] Speaker 02:
But you have to look at the weighted average of the estimated weighted averages.

[00:05:12] Speaker 04:
OK, just because time is short, let me get to the road.

[00:05:15] Speaker 04:
One thing that bothers me about your request for reversal is that you had notice of the withdrawal.

[00:05:22] Speaker 04:
And there's an opportunity for you to come in and protest their decision.

[00:05:28] Speaker 04:
And you waited till the end afterwards to protest.

[00:05:32] Speaker 04:
So if you had come in earlier, at least it would have saved a lot of expending of resources if you had challenged it early on.

[00:05:40] Speaker 04:
I assume it looks like all we lawyers think, well, you were waiting to see the results and going to only challenge it if you didn't do it well, because that's what we do.

[00:05:50] Speaker 04:
But what other reason is there for you not to have protested their decision to proceed like two weeks in?

[00:05:59] Speaker 02:
Well first of all, Your Honor, there's no indication that we failed to exhaust remedies or anything like that in this case.

[00:06:05] Speaker 02:
We clearly timely filed

[00:06:06] Speaker 02:
are briefs raising the issue.

[00:06:08] Speaker 02:
I also want to point out that in some cases before this court, it might be true that separate rate respondents or the all other respondents do nothing.

[00:06:14] Speaker 02:
That's not the case in this case before this court.

[00:06:17] Speaker 02:
And that's because separate rate or all other respondents had to submit, as I said earlier, a response to Judge Schall's question, a separate rate certification or a separate application.

[00:06:26] Speaker 02:
That was required 30 days after the initiation of the review, pursuant to the government's instructions.

[00:06:32] Speaker 02:
And as part of that, Your Honor, and this is in Appendix 164,

[00:06:35] Speaker 02:
It says explicitly in that application, and I'm going to quote, there is the possibility that your firm may be selected as a mandatory responding, Your Honor.

[00:06:44] Speaker 02:
So everybody knew, all the companies knew that submitted these separate rate certifications and applications.

[00:06:49] Speaker 02:
They had already put their hands up, Your Honor.

[00:06:51] Speaker 02:
They had already signaled to the Commerce Department, pursuant to the Commerce Department's instructions, that they were willing to be selected.

[00:06:58] Speaker 02:
There was no reason why we needed to go in again and say, hey, me, me.

[00:07:01] Speaker 02:
No, Your Honor, we had already completed our obligations timely, pursuant to the Commerce Department's instruction, and certified to the Department that we were willing to be certified to be selected as a mandatory respondent.

[00:07:13] Speaker 02:
So the question then became whether Commerce would go back, as it does in countless cases.

[00:07:17] Speaker 02:
I believe in a footnote in our brief we listed many, many cases, Your Honors.

[00:07:21] Speaker 02:
where the Commerce Department routinely selects another respondent.

[00:07:24] Speaker 02:
So this is not a first of its kind occurrence.

[00:07:26] Speaker 02:
Commerce does this in many, many cases.

[00:07:29] Speaker 02:
They go and they select mandatory respondents based on a list that they have already compiled.

[00:07:34] Speaker 02:
They have the data before them.

[00:07:35] Speaker 02:
There's nothing more they need to do than go to the list and pick the next company.

[00:07:39] Speaker 02:
And we had already put up our hands, Your Honors, and said, yes, we're willing and able to be selected.

[00:07:45] Speaker 02:
And I think it's very important, Your Honors, that if you look at the way the statutory construction is,

[00:07:49] Speaker 02:
There are two different obligations that are in play here that we've laid out in our briefs.

[00:07:53] Speaker 02:
The first, as I was talking about before, is the text of 1673 DC 5.

[00:07:57] Speaker 02:
And then you also have the text of 1677 F1C, which has to do with the selection of the response themselves.

[00:08:04] Speaker 02:
Both of those talk about the selection in the plural, exporters or producers.

[00:08:09] Speaker 02:
Both of those have statutory context and structure that also support that we're talking about multiple respondents.

[00:08:17] Speaker 02:
And then the nail in the coffin for me, Your Honor, is the statement of administrative action, which the Congress said was the way in which this ought to be determined.

[00:08:26] Speaker 02:
The statement of administration action likewise talks about exporters or producers.

[00:08:30] Speaker 02:
It talks about multiples.

[00:08:31] Speaker 02:
It doesn't say commerce may pick only one.

[00:08:33] Speaker 02:
So I think from the very history of this statute, going back to when it was enacted,

[00:08:38] Speaker 02:
in order to create this provision.

[00:08:40] Speaker 02:
And by the way, it's also consistent with the preference of Congress in other places, which is Congress said, you should calculate rates for all the producers and exporters.

[00:08:50] Speaker 02:
And that is that only in this exception should you have this limitation.

[00:08:53] Speaker 02:
So from the SAA, which is the executive of Congress's own view of the statute, through the text and through the statutory structure and context, all these indications suggest that Congress erred in only selecting one mandatory respondent.

[00:09:06] Speaker 02:
And for those reasons, Your Honor, we respectfully request that this court reverse and remand.

[00:09:10] Speaker 02:
If there are no other questions, I'll save my time for rebuttal.

[00:09:13] Speaker 04:
Well, I guess I have a little bit of a follow-up question, which is one of the government's responses to the argument you've just made is this other statutory provision that says you don't have to construe all S's as plurals necessarily found in the statutory text.

[00:09:31] Speaker 04:
So why would that general requirement on how you construe statutes not apply in this context?

[00:09:38] Speaker 02:
Yes, Your Honor.

[00:09:39] Speaker 02:
And the trial court also raised the question of the Dictionary Act, Your Honor.

[00:09:42] Speaker 02:
But I would like to point out the Dictionary Act specifically says there may be instances in which a plural could be considered to be a singular.

[00:09:49] Speaker 02:
We don't dispute that.

[00:09:50] Speaker 02:
But you have to look at the context of the statute.

[00:09:53] Speaker 02:
And here, as I said, the overarching purpose of the statute, as this court has said, and going back to 1990 and Roan Polonek, is to have fair and accurate determinations of dumping margins.

[00:10:02] Speaker 02:
It wasn't the attention of Congress.

[00:10:04] Speaker 02:
You'd only have one company to be used, for example, for 42.

[00:10:08] Speaker 02:
And that's why they used producers and exporters.

[00:10:10] Speaker 02:
That's also, Your Honor, wireless statute 1673, D.C.

[00:10:13] Speaker 02:
5, talks about the weighted average of the estimated weighted average estimated margins.

[00:10:21] Speaker 02:
In my view, it's nonsensical to have a weighted average of only one firm.

[00:10:26] Speaker 02:
The whole point of a weighted average is you have x over here and y over here, and you're trying to figure out what the weighted average should be, something in between x and y. Can I ask you one final question?

[00:10:35] Speaker 04:
Yes, Ron.

[00:10:36] Speaker 04:
One other final question, and it's more for the other side, but I'll give you a crack at it, which is I assume this happens a lot.

[00:10:43] Speaker 04:
Maybe I'm wrong.

[00:10:44] Speaker 04:
I mean, I don't play in this particular field.

[00:10:47] Speaker 04:
But I mean, is there a general,

[00:10:50] Speaker 04:
practice that the commerce has exhibited in past instances is one way or another where one of the two drops out at least early on in the process.

[00:11:01] Speaker 04:
I don't remember if in the briefs part it's got into that.

[00:11:04] Speaker 02:
That's right.

[00:11:05] Speaker 02:
It does happen fairly often.

[00:11:07] Speaker 02:
I certainly look forward to learning counsel's response to your question.

[00:11:10] Speaker 02:
We listed in a series, in a footnote, many, many cases in which this exact thing has happened.

[00:11:15] Speaker 02:
And what does commerce do?

[00:11:16] Speaker 02:
Two weeks before, they had a list of all the producers and the exporters.

[00:11:20] Speaker 02:
They had gone to customs.

[00:11:21] Speaker 02:
They had collected data.

[00:11:22] Speaker 02:
So they had done their diligence.

[00:11:25] Speaker 02:
They had the data before them.

[00:11:26] Speaker 02:
And what they usually do, they pick another company.

[00:11:29] Speaker 02:
And they do it very quickly.

[00:11:31] Speaker 02:
For some reason in this case, they decided not to do that.

[00:11:34] Speaker 02:
And that's exactly what we believe was incorrect.

[00:11:36] Speaker 02:
And that's exactly why the decision ought to be reversed and remanded below, Your Honors.

[00:11:43] Speaker 01:
Okay, thank you.

[00:11:44] Speaker 02:
Thank your honors.

[00:11:45] Speaker 00:
I'll say that the balance of my time Good morning your honors and may it please the court I'll start with the first issue that council is just discussing as it relates to whether commerce has a continuing and

[00:12:06] Speaker 00:
mandatory obligation to examine and determine the weighted average jumping margin on two mandatory respondents.

[00:12:14] Speaker 00:
The statute speaks to picking a reasonable number.

[00:12:18] Speaker 00:
There's nothing in the statute that at first suggests, let alone explicitly and unambiguously states that commerce has this continuing obligation.

[00:12:28] Speaker 00:
Here, Commerce did, in fact, select two mandatory respondents initially, and one dropped out.

[00:12:35] Speaker 04:
Well, if you're looking at the technical, technical words of the statute, it says a reasonable number of exporters or producers.

[00:12:43] Speaker 04:
In other words, the plural.

[00:12:46] Speaker 04:
The reasonable number doesn't seem to suggest at all that a reasonable number is one, where it's followed by exporters in plural or producers in plural.

[00:12:57] Speaker 04:
Is that a fair reading of the text?

[00:12:59] Speaker 00:
Your Honor, it's fair that it is stated in the plural.

[00:13:01] Speaker 00:
And we have a few responses to that.

[00:13:02] Speaker 00:
First, Your Honors are aware of our Dictionary Act response.

[00:13:06] Speaker 00:
Moving on from that, the statute itself, I'm looking at the context.

[00:13:10] Speaker 00:
contemplates that only one mandatory respondent will be left in subsection B right under that commerce is directed to or excuse me this is subsection A commerce is directed to average the weighted average jumping margins excluding any zero de minimis or margins based on adverse facts available so it's certainly conceivable under the plain language of the statute that commerce could be

[00:13:39] Speaker 00:
determining the weighted average based on only one mandatory respondent.

[00:13:43] Speaker 00:
And it's Your Honor's question to counsel that- How do you do weighted average for one?

[00:13:48] Speaker 00:
Well, Your Honor, you take the number plus zero and divide it by itself.

[00:13:53] Speaker 00:
I mean, as the trial court explains, there's no requirement that you have to average multiple numbers.

[00:14:02] Speaker 04:
And similarly, under subsection- There's no real task or

[00:14:07] Speaker 04:
of averaging if there's only one.

[00:14:10] Speaker 00:
Fair, Your Honor.

[00:14:10] Speaker 00:
But if you go to subsection B right under that, if all of the mandatory respondents come away with zero rates, Congress directed commerce to average the zero rates.

[00:14:21] Speaker 00:
So to Your Honor's point, sure, really, you don't do any math because you're just taking the average of one.

[00:14:28] Speaker 00:
But Congress contemplated that same scenario under subsection B when it directed commerce to average

[00:14:34] Speaker 00:
all zero rates.

[00:14:35] Speaker 00:
It's really not doing any work.

[00:14:36] Speaker 04:
Well, it's a little different in my mind, right?

[00:14:38] Speaker 04:
It's a little different to say averaging, meaning you're dealing with more than one, but to contemplate that, yeah, if you have six respondents and they're all zero, what do you do then?

[00:14:48] Speaker 04:
To me, there is some averaging and there is some need for explaining how you do that.

[00:14:54] Speaker 04:
To me, that's a little different from assuming that Congress was thinking about just one person when it talked about averaging.

[00:15:01] Speaker 04:
But that's just my view.

[00:15:02] Speaker 00:
Fair, Your Honor.

[00:15:03] Speaker 00:
And to Your Honor's earlier question, this happens all the time.

[00:15:06] Speaker 00:
It is not at all uncommon for a mandatory respondent to drop out at the end.

[00:15:11] Speaker 00:
If Your Honors were to adopt appellants' argument here, what would happen is we would get to the very end of this review period.

[00:15:19] Speaker 00:
A mandatory respondent would drop out and then

[00:15:22] Speaker 00:
commerce would be statutorily obligated to start over, go all the way back to the beginning.

[00:15:27] Speaker 00:
This does not comport with the context of the statute.

[00:15:30] Speaker 00:
Commerce has very strict statutory deadlines that it must adhere to.

[00:15:34] Speaker 00:
It would essentially be impossible for commerce to administer the statute and adhere to its deadlines if it constantly had to go back to the starting point.

[00:15:44] Speaker 01:
And I think it's a- When they dropped out.

[00:15:47] Speaker 01:
Their point is there was plenty of time to bring in another producer.

[00:15:53] Speaker 01:
So when you say it's common for people to stop out, drop out, you can see that the small producers do.

[00:15:59] Speaker 01:
But the question which I've had from the beginning, it always seemed to me that the government's best, strongest argument was that the entity that they kept was the largest producer, the largest exporter.

[00:16:13] Speaker 01:
And you never make that argument.

[00:16:16] Speaker 01:
And so obviously,

[00:16:18] Speaker 01:
from the government's viewpoint, there's no strength to it.

[00:16:24] Speaker 01:
Would you comment on that?

[00:16:26] Speaker 00:
Yes, Your Honor.

[00:16:27] Speaker 00:
It was the largest producer by volume, and that's why commerce initially selected.

[00:16:33] Speaker 00:
But they never say that.

[00:16:35] Speaker 01:
I believe they say that.

[00:16:36] Speaker 01:
And the government never argues that.

[00:16:38] Speaker 01:
You informed us that they were the largest, but that that

[00:16:42] Speaker 01:
not with any relationship to why you decided, all right, we don't need anyone else.

[00:16:48] Speaker 01:
Never mind the statute, which certainly asks for a weighted average.

[00:16:53] Speaker 01:
You can't get an average with only one.

[00:16:56] Speaker 00:
Well, to your honor's point, Commerce initially selected the mandatory respondent that it ended up using because it was the largest by volume, and that's why it selected it.

[00:17:05] Speaker 01:
But you never argue that in the briefs.

[00:17:09] Speaker 00:
I believe, Your Honor, we point to the statute subsection B, which is the largest volume, excuse me, the largest respondent by volume.

[00:17:21] Speaker 00:
So perhaps we could have been more explicit in that.

[00:17:24] Speaker 01:
But you never draw the conclusion that, therefore, this is deemed representative.

[00:17:29] Speaker 01:
Don't bother me with all these small producers.

[00:17:32] Speaker 01:
That's ignored, which convinces me that it's not deemed persuasive.

[00:17:38] Speaker 00:
Well, to your honor's question about being representative or response to appellant argument there is that there's no requirement in this subsection of the statute for there to be a representative dumping margin.

[00:17:52] Speaker 00:
Appellants point to subsection B, and they look at the Arbemarle case, which is under that subsection, and the legislative history, which speaks to representativeness.

[00:18:02] Speaker 00:
But there's no legislative history that speaks to representativeness in the subsection we're dealing with.

[00:18:07] Speaker 01:
There are no cases... And then you have an excessively unfair statute.

[00:18:12] Speaker 01:
They have to be representative.

[00:18:14] Speaker 01:
They're going to come up with a value which everyone is going to be stuck with.

[00:18:18] Speaker 00:
Well, it's representative, Your Honor, in that we selected the largest volume importer.

[00:18:25] Speaker 00:
So it's presumably representative, which is what this court explained in Albemarle.

[00:18:30] Speaker 00:
But there's no additional work that Commerce has to do to explain that the margin is representative.

[00:18:36] Speaker 01:
The government never says they're representative.

[00:18:39] Speaker 01:
I could say before the other guy dropped out, they picked the two largest.

[00:18:44] Speaker 01:
then they might have been able to come up with that argument.

[00:18:48] Speaker 01:
They never say that this entity is representative.

[00:18:53] Speaker 00:
Well, that's because, Your Honor, our position is that there's no statutory requirement that there needs to be a representative margin.

[00:19:01] Speaker 01:
Do you have presidential support for that curious argument?

[00:19:08] Speaker 00:
Well, Your Honor, the support is that there is nothing in the statute that speaks to representation or representativeness.

[00:19:14] Speaker 00:
And there are no cases that we are aware of, or that an appellant has cited, that says that the average weighted dumping margin needs to be representative under this subsection.

[00:19:25] Speaker 00:
There's just no authority whatsoever.

[00:19:27] Speaker 00:
So although appellants are arguing that they wish it was representative and it's not fair because it's not representative, they cite no authority other than cases that speak to a different part of the statute.

[00:19:38] Speaker 00:
So turners point fair we didn't argue was representatives because it's our position that there's no requirement that it needs to be representative and when we think about how this would actually be in play if commerce were actually required to go back to a

[00:19:54] Speaker 00:
the very beginning and restart the entire review, this argument that appellants raise doesn't really comport with their second argument which is that commerce essentially has no discretion whatsoever to deny a withdrawal request even if it's like in this case nine months into or beyond the 90-day deadline.

[00:20:14] Speaker 00:
So on one hand, appellants are arguing we should be able to withdraw at any time

[00:20:19] Speaker 00:
even after the preliminary results are issued, but if someone withdraws, like a mandatory respondent, commerce is statutorily obligated to go all the way back to the start and select new mandatory respondents.

[00:20:32] Speaker 00:
It would be impossible for commerce to do this and comply with statutory deadlines.

[00:20:37] Speaker 00:
So you really can't have it both ways here.

[00:20:40] Speaker 03:
Ms.

[00:20:40] Speaker 03:
Hankers, can I ask you two questions, please?

[00:20:42] Speaker 00:
Sure.

[00:20:43] Speaker 03:
One is a process question, one is on the merits.

[00:20:46] Speaker 03:
You recall that when your colleague on the other side was up, Judge Prost asked about possible outcomes and what we had to address.

[00:20:54] Speaker 03:
My view is if we affirm the decision of the Court of International Trade in this case, we then, on the first issue, we then have to look at the second, the third, and the fourth issues.

[00:21:07] Speaker 03:
That's my view.

[00:21:09] Speaker 03:
Do you agree with that?

[00:21:10] Speaker 00:
I agree with that, Your Honor.

[00:21:11] Speaker 00:
If the first issue's affirmed, then whether the parties can be withdrawn would be important to know whether that applies.

[00:21:17] Speaker 00:
And then the fourth issue goes into the right as well.

[00:21:19] Speaker 03:
OK, now assume that we were to agree with the other side with the appellants on the first issue and say that the CIT erred on that.

[00:21:29] Speaker 03:
Do we then need to reach the second, the third, and the fourth issues?

[00:21:34] Speaker 00:
As to the second issue, I think no, Your Honor, because the application of the rate isn't really important if the rate itself didn't stand, right?

[00:21:43] Speaker 00:
And so I think that would go away.

[00:21:44] Speaker 00:
To Your Honor's question, to my colleagues over here, if that were to happen, what would the result be?

[00:21:50] Speaker 00:
Well, Commerce would have to

[00:21:51] Speaker 00:
Restart the entire review and have to go back to the very beginning and pick another mandatory Respondent hope that it stays involved all the way to the end and if it doesn't we'll continue how about the withdrawal to the withdrawal issue I think that also should be determined by this court because When it goes back down and there's a rate applied there will still be a question of whether that rate is applied to these parties or whether they're

[00:22:13] Speaker 00:
improperly not allowed to withdraw.

[00:22:17] Speaker 00:
So I think that that needs to be decided.

[00:22:18] Speaker 03:
But if it went back, wouldn't the whole thing, if it did go back, wouldn't the whole thing start all over again, and everybody would be sort of, for want of a crude term, back at the starting line?

[00:22:29] Speaker 03:
And why, I mean, I would think everybody, if it went back, everybody would be OK, now we're going to have a new second mandatory respondent, and we now decide what we want to do.

[00:22:41] Speaker 03:
Wouldn't it, wouldn't they,

[00:22:43] Speaker 03:
beginning, for want of a better word, a do-over on that issue automatically.

[00:22:47] Speaker 00:
Yeah, Your Honor, that's a good point.

[00:22:49] Speaker 00:
And I actually didn't think that.

[00:22:50] Speaker 00:
I think that's right, because the timeline to withdraw would presumably start over if the entire review were to start over.

[00:22:59] Speaker 00:
So actually, that was my answer.

[00:23:01] Speaker 03:
I think that's correct.

[00:23:04] Speaker 03:
So you would say two and three we wouldn't have to look at.

[00:23:07] Speaker 03:
Now on four, my initial reaction was that if we were to rule in favor of appellants on the first issue, four would still perhaps be alive.

[00:23:17] Speaker 03:
Because there's still the question of the surrogate values with respect to is it John wrong or John?

[00:23:24] Speaker 03:
Whoever is you?

[00:23:25] Speaker 00:
Yeah, John John Holmes I think you're right your honor that it would be helpful if the court were to decide that issue because that issue will remain as to whether commerce Properly excluded the import okay now one one substantive question, then I'll turn the floor over my colleagues was I saw arguments

[00:23:45] Speaker 03:
I saw a reference in a case, and I could be wrong, that it was not unreasonable in a situation like this for somebody to wait if the results of the prior review were not yet in.

[00:23:59] Speaker 03:
It was all right for somebody to wait and then challenge after the results of the prior review came in.

[00:24:07] Speaker 03:
As I see it here, on March 9th, 2018, Commerce issued the final results from the

[00:24:14] Speaker 03:
first review.

[00:24:17] Speaker 03:
And then in this case, let's see.

[00:24:25] Speaker 03:
I'm trying to see how long after that was it that the parties sought to challenge.

[00:24:35] Speaker 00:
Six months after, Your Honor.

[00:24:36] Speaker 00:
And to Your Honor's point, you were calling the Gleison case from this court.

[00:24:40] Speaker 03:
That didn't seem to me to be too long a time.

[00:24:43] Speaker 00:
Agreed completely.

[00:24:44] Speaker 00:
In that case, this court explained that importers might have an interest in knowing what the prior segment's final results were.

[00:24:52] Speaker 00:
And if those results don't come out by the time their 90-day expiration period comes up, then maybe commerce would unreasonably deny any withdrawal requests.

[00:25:02] Speaker 03:
No, I'm not talking about the withdrawal requests.

[00:25:04] Speaker 03:
I'm talking about challenging the failure to select a second mandatory respondent.

[00:25:12] Speaker 00:
all okay apologies I don't know I didn't make it clear same same argument here they waited forever right in a lot of these cases they wait until after the results of the first review came it was

[00:25:27] Speaker 00:
I can't remember off the top of my head your honor and Your honor spoke about this with the other side is that this happens all the time people drop out or mandatory respondents drop out and often times the reason why commerce replaces them like Appellants mentioned is common and

[00:25:44] Speaker 00:
is because the other parties mention it.

[00:25:46] Speaker 00:
They request that they be reviewed.

[00:25:48] Speaker 00:
They request that commerce replace them.

[00:25:50] Speaker 00:
Or they can write a letter saying that they think commerce should be the obligation.

[00:25:56] Speaker 00:
Here, appellants argue that commerce is

[00:25:59] Speaker 00:
statutorily obligated to proceed with two mandatory respondents, but it begs the question if that is such an unambiguous statutory mandate why none of the parties raised this issue until after they found out that the preliminary result rate wasn't going to be favorable for them.

[00:26:17] Speaker 00:
And that's the exact reason why commerce needs to have this discretion and why parties shouldn't be

[00:26:26] Speaker 00:
rewarded for waiting until the very end for waiting to see that a rate isn't helpful for them even though commerce has expended all of the resources and time into this review that was originally

[00:26:41] Speaker 00:
with two mandatory respondents.

[00:26:44] Speaker 04:
Can I go back to, it seems like forever, but I think it was just a few minutes ago where you were concluding your arguments, and you were talking about withdrawal, and you were talking about a panoply of parables, I don't mean that, but I use those too, about this case, and you were dealing with requests for withdrawals.

[00:27:01] Speaker 04:
That's a separate issue, though.

[00:27:03] Speaker 04:
I mean, that's issue three, right?

[00:27:05] Speaker 04:
I mean, whether or not we can reach it enough is another issue.

[00:27:09] Speaker 04:
But in terms of the legal issues, we have the ability to decide.

[00:27:13] Speaker 04:
We could decide for the other side on the statutory construction and still decide that you were right, that the commerce does have the discretion to agree to or not agree to untimely withdrawals.

[00:27:26] Speaker 04:
So to the extent that's one of the parade of harbors that might appear, that's not going to be affected necessarily by our decision on the statutory construction.

[00:27:34] Speaker 04:
Is that fair?

[00:27:35] Speaker 00:
Yeah, I think that's fair, Your Honor, and that would just be reaffirming the Gleison case.

[00:27:40] Speaker 00:
Thank you, Your Honors.

[00:27:42] Speaker 01:
Any more questions for the committee?

[00:28:05] Speaker 02:
I want to address Judge Newman's question about representativeness.

[00:28:10] Speaker 02:
First, Your Honor, I want to make clear that that is a secondary issue.

[00:28:13] Speaker 02:
The first issue, consistent with Judge Prost's questions today, is whether or not the statutory text, the context, and the structure, as well as the statement of administrative action, as I said, are clear.

[00:28:23] Speaker 02:
All of those things point to the idea that commerce must have two calculated rates in order to determine the all-others rate.

[00:28:29] Speaker 04:
Isn't it?

[00:28:30] Speaker 04:
No, I don't want to take up too much of your time, but isn't it a little odd that this issue hasn't presented itself before?

[00:28:35] Speaker 04:
We all agree this happens a lot.

[00:28:40] Speaker 04:
What?

[00:28:41] Speaker 02:
Your Honor, I wanted to answer your earlier question with a little more precision.

[00:28:44] Speaker 02:
You would ask whether it does happen.

[00:28:45] Speaker 02:
I want to point you to note seven of our opening brief.

[00:28:49] Speaker 02:
We enumerated eight cases.

[00:28:51] Speaker 02:
And those cases are all situations in which my government colleagues went ahead and selected another mandatory respondent.

[00:28:57] Speaker 02:
So the reason why we haven't been here before, Your Honor, is because commerce goes ahead and selects a second respondent.

[00:29:03] Speaker 02:
So we don't need to end up in a situation where we only have one.

[00:29:06] Speaker 02:
And I would point out, Your Honor,

[00:29:08] Speaker 02:
basic purpose of the statute is actually to have all

[00:29:12] Speaker 02:
I repeat, all the producers and exporters have a calculated margin.

[00:29:16] Speaker 02:
So under the statute, commerce is actually, first and foremost, supposed to select individual margins for everybody.

[00:29:22] Speaker 02:
Here, for some reason, they only pick two.

[00:29:24] Speaker 02:
And then when one dropped out, they couldn't pick another one.

[00:29:27] Speaker 02:
So they should be picking three, four, or five to make sure that they don't end up in a situation, the burden is on commerce.

[00:29:33] Speaker 02:
There seems to be an attempt by the government.

[00:29:35] Speaker 04:
Well, you're not suggesting that we're going to consider the statute as saying it has to be more than two.

[00:29:40] Speaker 02:
I don't think it's up to you to require that, Your Honor.

[00:29:42] Speaker 02:
It's up to the Commerce Department on an individual basis in each case to make sure that at the end of the day, they have two or more rates.

[00:29:48] Speaker 02:
That's what the statute says in the plain text.

[00:29:50] Speaker 02:
That's what it says in the context and the structure.

[00:29:52] Speaker 02:
And that's what the statement of administrative action instructs.

[00:29:54] Speaker 04:
Well, that assumes that there is more than one representative out there, right?

[00:29:57] Speaker 04:
I mean, to Judge Newman's point.

[00:29:59] Speaker 02:
Yeah, I mean, Your Honor, I do not believe that one can be representative.

[00:30:03] Speaker 02:
And that's, again, going back to the structure of the statute and to Judge Prost's comments about a weighted average.

[00:30:08] Speaker 02:
I think Congress inherently said one is per se not representative, Your Honor.

[00:30:14] Speaker 02:
And so you have to have more than one in order to satisfy that.

[00:30:17] Speaker 02:
Also, Your Honors, with respect to the representative question, which is a subsidiary issue, we pointed out that we actually provided Congress a problem with data showing that June Hong was not representative.

[00:30:28] Speaker 02:
the Commerce Department decided not to address that data at all.

[00:30:32] Speaker 02:
And so number one, you have to have two or more.

[00:30:35] Speaker 02:
And then secondarily, they refused to look at the data that we proffered showing that the one company they did rely upon was not representative.

[00:30:42] Speaker 02:
And so for all those reasons, Your Honors, we do request that this court reverse and remand to the Commerce Department.

[00:30:47] Speaker 02:
There's no further questions, Your Honors.

[00:30:49] Speaker 02:
Thank you very much.

[00:30:49] Speaker 01:
Any more questions?

[00:30:51] Speaker 01:
Anything else?

[00:30:53] Speaker 01:
OK.

[00:30:53] Speaker 01:
Thank you.

[00:30:53] Speaker 01:
Thanks to both counsels.

[00:30:55] Speaker 01:
The case is taken under submission.