[00:00:00] Speaker 05:
Our next case is Sweet Harvest Foods, Canal versus the United States and American Honey Producers, 2024, 1370, and 71.

[00:00:10] Speaker 05:
Mr. Kendler.

[00:00:12] Speaker 05:
Thank you, Your Honor.

[00:00:18] Speaker 01:
May it please the court, Ron Kendler of White and Case, on behalf of plaintiffs' appellants.

[00:00:23] Speaker 01:
Your Honours, this Court should remand the International Trade Commission Majority's affirmative critical circumstances determination regarding raw honey from Vietnam for two reasons.

[00:00:35] Speaker 01:
First, the majority's determination was contrary to law.

[00:00:38] Speaker 01:
Second, the majority's determination was unsupported by substantial evidence.

[00:00:43] Speaker 01:
Before we get started, there are a few dates to keep in mind.

[00:00:47] Speaker 01:
The filing of the anti-dumping petition in April 2021, the date of provisional measures in November 2021, and the issuance of the anti-dumping order in June 2022.

[00:00:59] Speaker 01:
It is that last date that is the focus

[00:01:03] Speaker 01:
of the critical circumstances analysis and of this appeal.

[00:01:07] Speaker 01:
First, as recognized by the dissent, the determination was contrary to law.

[00:01:12] Speaker 01:
This is clear from the plain language of the statute and the majority's flawed analysis of subject import inventories.

[00:01:19] Speaker 01:
Now, there are two statutory provisions at issue in this case.

[00:01:23] Speaker 01:
The first is the general critical circumstances provision, and the second is the inventory provision.

[00:01:29] Speaker 01:
The general critical circumstances provision makes clear that the commission must consider whether imports made within 90 days of the imposition of provisional measures, known as critical circumstances entries, are, quote, likely to undermine seriously the remedial effect of the anti-dumping duty order to be issued.

[00:01:52] Speaker 01:
This language makes clear that the commission must conduct a forward-looking analysis, evident through the use of the term likely, which is inherently prospective, the phrase order to be issued, which requires the commission to look forward to the issuance of the order, and reference to other statutory provisions concerning the issuance of the order at the end of the investigation.

[00:02:15] Speaker 01:
And this is crucial, because the critical circumstances and its nature is extraordinary.

[00:02:21] Speaker 01:
It establishes anti-dumping liability three months earlier than normal and only in exigent circumstances, where imports are likely to undermine seriously the remedial effect of an order once issued.

[00:02:35] Speaker 01:
Indeed, between 2000 and 2022, when this order was issued, the commission made only three affirmative critical circumstances determinations, despite over 70 allegations of such.

[00:02:48] Speaker 01:
Three affirmative determinations in 22 years.

[00:02:52] Speaker 01:
The inventory provision requires the commission to evaluate, quote, a rapid increase in inventories of the imports in its analysis.

[00:03:00] Speaker 04:
Now, the statute didn't.

[00:03:01] Speaker 04:
Can I just interrupt?

[00:03:03] Speaker 04:
So this is the way I think I understand what Judge Gordon said and I think the ITC said.

[00:03:10] Speaker 04:
So the point of this critical circumstance is to make sure that once there is an indication, namely the filing of an Anti-Topic Duty Petition,

[00:03:20] Speaker 04:
that importers don't build up the stock before the anti-dumping duty starts applying.

[00:03:32] Speaker 04:
Not when the order is finally announced, but when it starts applying, which is at the suspension date.

[00:03:38] Speaker 04:
And so what you're interested in is figuring out whether there's been a large rise between petition date

[00:03:48] Speaker 04:
and suspension date.

[00:03:49] Speaker 04:
And it doesn't have to stay in inventory, because one way to hurt the domestic industry is to basically satiate the market so that consumers have all the money they need for an extended period.

[00:04:03] Speaker 04:
Why doesn't that all just make straightforward sense under the statute so that the duty, in fact, in these critical circumstances applies 90 days before the suspension date?

[00:04:15] Speaker 01:
Thank you, Judge Toronto.

[00:04:16] Speaker 01:
You are correct that there is this language about the imports coming in prior to the provisional measures.

[00:04:24] Speaker 01:
But the statute specifically instructs the commission to look at the inventory.

[00:04:28] Speaker 01:
So the inventories are relevant.

[00:04:30] Speaker 01:
And to your question, the key point about- I'm sorry.

[00:04:34] Speaker 04:
What is the language?

[00:04:36] Speaker 04:
I thought that the language was an increase, not a current level.

[00:04:41] Speaker 04:
Is that wrong?

[00:04:42] Speaker 01:
That is not wrong, Your Honor.

[00:04:45] Speaker 01:
But the notion of an increase takes into account current levels.

[00:04:49] Speaker 04:
And current levels are- But it's not necessary, precisely because all of that could have been sold off.

[00:04:56] Speaker 04:
And so consumers are not going to buy anything from the domestics for a period, even though they're not in inventory of the importers of the imports.

[00:05:07] Speaker 01:
Respectfully, Your Honor, that is not the case.

[00:05:10] Speaker 01:
Because if the end users have bought it off,

[00:05:12] Speaker 01:
and they've used it up, it is therefore not an inventory, and it is not in the supply chain, and their demand will continue.

[00:05:19] Speaker 01:
And that's the key issue here, is that if the end users have used the honey, then it is not likely to seriously undermine the remedial effect of the order.

[00:05:28] Speaker 04:
I'm sorry, I just want to be clear.

[00:05:30] Speaker 04:
I thought the inventory was, let's just call it as the importer's warehouse.

[00:05:35] Speaker 04:
Not on the talk, but the importer's warehouse.

[00:05:37] Speaker 04:
We're not talking about whether consumers have used it up.

[00:05:41] Speaker 04:
Consumers may now have a full cupboard of honey.

[00:05:45] Speaker 04:
And so they're not going to go and buy domestic honey because they bought it all when they didn't have to indirectly pay the entitlement.

[00:05:55] Speaker 01:
Thank you, Your Honor.

[00:05:55] Speaker 01:
Well, that goes to the heart of the issue of this case is that there was evidence on the record showing that the importers inventories had in fact declined

[00:06:03] Speaker 01:
and that it had been sold off to end users, and that the end users in the ordinary course of business do not keep inventory, were not stockpiling, and had consumed the honey.

[00:06:14] Speaker 01:
And at the point that they have consumed the honey, this goes back to the overall critical circumstances provision.

[00:06:19] Speaker 01:
They've consumed it.

[00:06:20] Speaker 01:
It is not likely to seriously undermine the remedial effect of the order.

[00:06:24] Speaker 01:
In fact, there's an affidavit of one honey packer at appendix 31,806, Mr. Chris Newburn.

[00:06:31] Speaker 01:
where he said that he continued to see demand from end users, and those end users do not keep the honey in inventory, thereby meaning that these inventories were not likely to seriously undermine the remedial effect of the order.

[00:06:45] Speaker 01:
So going to this issue of the inventories that we've discussed, the commission had two data sets on the record.

[00:06:52] Speaker 01:
The first was importer inventories collected through its questionnaire responses, which ended eight months before the issuance of the order.

[00:07:00] Speaker 01:
And the other data set was submitted by importers and packers that ended three months before the issuance of the order.

[00:07:07] Speaker 01:
Now, the majority used only the questionnaire data, only what ended eight months before the issuance of the order, and that is a critical flaw.

[00:07:16] Speaker 01:
Because first, when that analysis stops eight months before the issuance of the order, the Commission could not conduct the requisite statutory analysis of understanding the effect of these entries on the order at the time of issuance.

[00:07:31] Speaker 01:
Moreover, the importer and packer data submitted by the importers and packers demonstrated that, as we've just discussed,

[00:07:38] Speaker 01:
nearly all of the critical circumstances entries had been sold off and that those end users were continuing to purchase, thereby demonstrating that they were not stockpiling this honey.

[00:07:49] Speaker 01:
And that's especially problematic because entries that have been sold off and have been consumed, by definition, cannot be in a position to seriously undermine the remedial effect of the orders.

[00:08:04] Speaker 01:
And third, the record did not, in fact, demonstrate, of course, that the end users had consumed it.

[00:08:09] Speaker 01:
But that's because the commission did not request that data.

[00:08:13] Speaker 01:
And the importers and packers could not submit the confidential information of their own customers.

[00:08:17] Speaker 01:
They didn't have access to it.

[00:08:19] Speaker 01:
Now.

[00:08:20] Speaker 03:
Council, are you contesting a failure to consider more recent data as part of this appeal?

[00:08:25] Speaker 01:
Yes, Your Honor, under our substantial evidence argument.

[00:08:29] Speaker 03:
And going back to kind of the statutory interpretation argument you're making, does your statutory interpretation argument require the timing and volume of the imports to be considered prior to the end of the investigation?

[00:08:41] Speaker 03:
Or is the timing and volume of imports considered prior to suspension of liquidation?

[00:08:46] Speaker 01:
Thank you, Judge Cunningham.

[00:08:47] Speaker 01:
The timing and volume of the imports is a separate provision that we are not contesting the analysis of.

[00:08:52] Speaker 01:
We are solely contesting the commission's interpretation of the likely to undermine, likely to seriously undermine provision.

[00:08:59] Speaker 01:
and the inventory's provision.

[00:09:00] Speaker 03:
Why would there ever be a rapid increase in imports in the period before the investigation ends, rather than the period before the suspension of liquidation?

[00:09:09] Speaker 01:
Well, in this case, there was, in fact.

[00:09:11] Speaker 01:
And Mr. Newburn's testimony testifies to that.

[00:09:13] Speaker 01:
It can be like in this case, where there, in fact, was a domestic shortage of honey, and importers were willing to take on the burden of provisional measures in order to import because the market was continuing to demand it.

[00:09:23] Speaker 01:
That's just one hypothetical situation, which here, in fact, was not hypothetical.

[00:09:28] Speaker 01:
So coming back to this issue of seriously undermined, and the courts have spoken to this issue of the commission refusing to develop the evidence.

[00:09:38] Speaker 01:
In Allegheny Ludlam, this court specifically stated that the commission is obligated to make active, reasonable efforts to obtain relevant data.

[00:09:48] Speaker 01:
The commission did no such thing here.

[00:09:50] Speaker 01:
It further stated that the commission may not shirk this duty by asserting a failure of the parties to request that the commission gather the data.

[00:09:57] Speaker 01:
And that's what exactly the commission did here.

[00:10:00] Speaker 01:
Additionally, in Nippon Steel, the United States, the Court of International Trade explained that if the record lacks information necessary to show that a statutory requirement is satisfied, then there is no basis to issue a determination meeting that requirement.

[00:10:14] Speaker 01:
And here, the majority violated these principles.

[00:10:18] Speaker 01:
And that renders the determination contrary to law.

[00:10:20] Speaker 01:
The dissent of the commission called this specific point out.

[00:10:24] Speaker 01:
As Commissioner Johansson, the dissenting commissioner stated, quote, the record contains clear evidence that the increase in imports was largely, if not entirely, eliminated in the next six months before the order.

[00:10:38] Speaker 01:
The record lacks evidence regarding final inventory levels.

[00:10:41] Speaker 01:
The statute permits an affirmative critical circumstances finding only if the imports subject to the determination likely will undermine seriously the orders remedial effect.

[00:10:51] Speaker 01:
Given the evidence in this record, I cannot find that this standard is met," end quote, and this court should find the same.

[00:10:59] Speaker 01:
Moving on to the second point, as likewise recognized by the dissent, the determination was unsupported by substantial evidence.

[00:11:06] Speaker 01:
There are two key elements to the substantial evidence standard that are relevant here.

[00:11:09] Speaker 01:
First, the commission must consider record evidence that supports an alternative conclusion.

[00:11:14] Speaker 01:
And second, speculation is not substantial evidence.

[00:11:18] Speaker 01:
Now, the key language from the majority's finding, evidentially speaking, is that it stated, quote, regardless of where the imported honey is in the supply chain, the volume associated with these inventories is large and increased substantially in the post-petition period and is likely to place downward pressure on prices until it is consumed by end users.

[00:11:41] Speaker 01:
Now, substantial evidence did not support that conclusion, which is an appendix 541.

[00:11:45] Speaker 01:
Now, first, the majority stated that these large volumes were likely in the supply chain.

[00:11:52] Speaker 01:
In other words, there was no evidence to establish the conclusion that the entries were in the supply chain rather than having been consumed by end users.

[00:12:01] Speaker 01:
The dissent, again, recognized this, appendix 545 to 46.

[00:12:04] Speaker 01:
So the conclusion that the entries were in the supply chain is speculative.

[00:12:09] Speaker 01:
Second, the majority disregarded the inventory data submitted by importers and packers.

[00:12:15] Speaker 01:
And that inventory data showed that the inventories had fallen sharply well before three months of the issuance of the order and were at normal levels.

[00:12:24] Speaker 01:
Finally, the record did not support the allegations of stockpiling.

[00:12:28] Speaker 01:
Those issues are confidential, so I respectfully refer you to pages 41 to 44 of our brief.

[00:12:33] Speaker 01:
Plaintiff's appellants respectfully request that this court find the majority's affirmative critical circumstance determination contrary to law and unsupported by substantial evidence.

[00:12:42] Speaker 01:
I yield the rest of my time to rebuttal.

[00:12:43] Speaker 01:
Thank you, Your Honors.

[00:12:44] Speaker 05:
We will hold it for you.

[00:12:46] Speaker 05:
Mr. Holdenstein.

[00:12:51] Speaker 00:
Thank you, Your Honor.

[00:12:52] Speaker 00:
Michael Holdenstein for the International Trade Commission.

[00:12:55] Speaker 00:
May it please the court?

[00:12:58] Speaker 00:
So critical circumstances is designed to deter importers from rushing in imports prior to suspensional liquidation.

[00:13:06] Speaker 00:
Once commerce finds a surge in imports, that is massive imports over a relatively short period, the commission is tasked with deciding whether those imports are likely to seriously undermine the immediate effect of the order.

[00:13:21] Speaker 00:
Now, in making this determination, the commission considered the statutory factors.

[00:13:26] Speaker 00:
There are only two factors mentioned in the statute, timing and volume of the imports and the rapid increase in inventories.

[00:13:35] Speaker 00:
And both of those factors here are not challenged.

[00:13:38] Speaker 00:
There was an 83% increase in subject imports from Vietnam prior to suspension of liquidation compared to before the petition was filed.

[00:13:51] Speaker 00:
The rapid increase also preceded the potential retroactive period for duties.

[00:13:57] Speaker 00:
In other words, they were front loading the imports before the 90 days for which imports could be subject to retroactive duties.

[00:14:06] Speaker 00:
Imports peaked in August 2021, 90 days before suspensional liquidation.

[00:14:14] Speaker 00:
The inventories nearly tripled, and this was not explained by consumption patterns.

[00:14:24] Speaker 00:
The importers' shipments only increased by 2.8%, yet their inventories had tripled.

[00:14:33] Speaker 00:
The Commission also found that the industry was continuing to report losses, and there was an underselling by wide margins.

[00:14:46] Speaker 00:
Sweet Harvest first raised this argument about the commission was obligated to use 90 days for its analysis.

[00:14:52] Speaker 00:
It was only 90 days of imports the commission should have considered.

[00:14:56] Speaker 00:
It never made this argument to the commission.

[00:14:58] Speaker 00:
It only made it on appeal.

[00:14:59] Speaker 00:
The commission considered six months worth of imports.

[00:15:04] Speaker 00:
That was the entire period between the final petition and suspension of liquidation.

[00:15:09] Speaker 00:
That's what Sweet Harvest argued for to the commission.

[00:15:12] Speaker 00:
That's what petitioners agreed should be used.

[00:15:16] Speaker 00:
And that is what the commission used.

[00:15:19] Speaker 00:
Now they say the commission should have to use 90 days.

[00:15:22] Speaker 00:
Now, 90 days isn't in statute.

[00:15:25] Speaker 00:
It's not found in the SAA.

[00:15:27] Speaker 00:
It's only found in the suspensional liquidation provisions that apply once the Congress has found critical circumstances.

[00:15:37] Speaker 03:
What is the best record evidence regarding the ITC's finding that the surge of imports was not for consumption?

[00:15:47] Speaker 00:
The best evidence of that is, first of all, the fact that the inventories tripled.

[00:15:56] Speaker 00:
That showed that they weren't for immediate consumption.

[00:15:59] Speaker 00:
But Christian also found that there was only a small increase in importers' shipments.

[00:16:05] Speaker 00:
So they weren't shipping out more honey.

[00:16:07] Speaker 00:
Those factors, as well as what's in footnote 305, that there was an inelastic demand for this product.

[00:16:13] Speaker 00:
It was sold at low prices, but that didn't mean there was going to be increased consumption of honey.

[00:16:19] Speaker 00:
So all these factors indicated that the honey was likely not for immediate consumption.

[00:16:26] Speaker 00:
That's what the Commission found.

[00:16:30] Speaker 00:
Judge Gordon rejected the 90-day argument and saying it was inconsistent with the statute, the essay, and the statutory scheme.

[00:16:37] Speaker 00:
His discussion is in the opinion of pages 13 to 15.

[00:16:43] Speaker 00:
Now, the food harvest is also arguing that the effective date of the order was when the order was published.

[00:16:50] Speaker 00:
That's not accurate.

[00:16:52] Speaker 00:
The statute itself says

[00:16:55] Speaker 00:
that the order is effective as a suspension of liquidation.

[00:17:01] Speaker 00:
The commission's provision says order to be issued under section 1673E.

[00:17:05] Speaker 00:
1673E contains the general rule that makes final duties apply as a suspension of liquidation.

[00:17:17] Speaker 00:
Moreover, the orders themselves, as Judge Gordon found, say when they're effective.

[00:17:23] Speaker 00:
And that's the suspension of liquidation for Argentina, Brazil, and India, and 90 days prior for Vietnam.

[00:17:32] Speaker 00:
So there's no merit to this argument that the date of issuance of the order has relevance here.

[00:17:41] Speaker 00:
So Sweet Harvest argues that all the inventories were sold off.

[00:17:46] Speaker 00:
But this argument is really based on a false premise that, as I've mentioned, that the order is effective when it's published.

[00:17:54] Speaker 00:
The final duties are imposed as a suspension of liquidation.

[00:17:58] Speaker 00:
So even though the inventories were sold down, they were sold down during the period of relief.

[00:18:06] Speaker 00:
after suspension of liquidation, and they were undermining the remedial relief, even though they were sold down.

[00:18:19] Speaker 00:
As I explained, the evidence also showed that they were not immediately consumed.

[00:18:25] Speaker 00:
And the commission made that finding in response to the argument that even if they were sold off, it responded to that argument and said, even if they were sold off by the importers, that does not mean they are necessarily consumed.

[00:18:42] Speaker 00:
Sweet Harvest also mentioned an affidavit.

[00:18:45] Speaker 00:
It says the commission never addressed the claims in the affidavits that there was no stockpiling and that all the honey had been consumed.

[00:18:53] Speaker 00:
But the commission did address the affidavit.

[00:18:56] Speaker 00:
And that's in footnote 306, appendix pages 541 to 542.

[00:19:02] Speaker 00:
There were no findings that all the honey had been consumed.

[00:19:08] Speaker 00:
And the dissent didn't find that all the honey had been consumed by the time of the issuance of the order.

[00:19:16] Speaker 00:
And the commission certainly didn't either.

[00:19:20] Speaker 00:
The discussion of this issue, whether the honey had all been consumed on the last two pages of the commission's brief,

[00:19:34] Speaker 00:
Sweet Harvest also argued that the Commission made a finding that end users were stockpiling honey.

[00:19:38] Speaker 00:
The Commission didn't make that finding.

[00:19:40] Speaker 00:
It just said they were likely still in the supply chain.

[00:19:45] Speaker 00:
Sweet Harvest also argues the Commission should have gathered additional data.

[00:19:49] Speaker 00:
But again, this is an argument they never raised below.

[00:19:52] Speaker 00:
They never argued to the Commission it should gather any more data.

[00:19:59] Speaker 00:
and had abandoned this argument in the Court of International Trade.

[00:20:01] Speaker 00:
And you can see this in appendix page 23, footnote 5.

[00:20:05] Speaker 00:
They said they were no longer arguing for additional data.

[00:20:09] Speaker 00:
Sweet Harvest relies on Allegheny Ludlum.

[00:20:12] Speaker 00:
That case involved.

[00:20:13] Speaker 00:
a situation where the commission defined an additional light product, and then it said it couldn't gather data concerning material injury for the light product it had defined.

[00:20:25] Speaker 00:
But the commission never sought to gather that data, even though

[00:20:31] Speaker 00:
It needed the data to address the statutory factors.

[00:20:35] Speaker 00:
Here, Sweet Harvest is arguing the commission should have gathered data concerning declining inventories, and that's not a statutory factor.

[00:20:43] Speaker 00:
Again, the only statutory factor is a rapid increase in inventories prior to suspension and liquidation when the order is effective.

[00:20:56] Speaker 00:
Sweetheart also argues the commission didn't do a forward-looking analysis.

[00:21:01] Speaker 00:
This isn't accurate.

[00:21:04] Speaker 00:
The commission did a forward-looking analysis as of suspension of liquidation when the order was effective.

[00:21:10] Speaker 00:
And it looked at whether the imports and inventories prior to suspension of liquidation were likely to undermine the remedial effect of the order.

[00:21:19] Speaker 00:
The commission examined the likelihood from this point in time not just

[00:21:23] Speaker 00:
during the period after the order was published.

[00:21:28] Speaker 00:
Factors include the buildup in inventories and the continued underselling.

[00:21:33] Speaker 00:
And the commission also found that the honey in inventory would continue to place downward pressure on prices, even though some of it had been sold off by the importers.

[00:21:47] Speaker 00:
The lower court also found that the commission had conducted a forward-looking analysis

[00:21:53] Speaker 00:
You can see this in the appendix at page 30, which has the lower court's opinion.

[00:22:01] Speaker 00:
In conclusion, the commission addressed the only two statutory factors, the rapid increase in inventories and the timing of the volume of imports.

[00:22:09] Speaker 00:
And Sweet Harvest doesn't really contest those factors.

[00:22:14] Speaker 00:
Instead, it argues the commission should have collected additional data that it never requested, and it makes arguments concerning the 90 days and the effective date of the order that were not even made to the ITC.

[00:22:24] Speaker 00:
They're contradicted by the SAA and the logic of the critical circumstances provision, which focuses on the prior suspension of liquidation.

[00:22:34] Speaker 00:
The lower court also rejected all these arguments.

[00:22:39] Speaker 00:
Sweet Harvest factual arguments are based on findings not made by the Commission concerning end-user stockpiling, and it ignores the reasoning of the Commission concerning the declining inventories.

[00:22:53] Speaker 00:
For these reasons, Your Honor, the Commission respectfully requests that the...affirm the Commission's affirmative critical circumstance.

[00:23:01] Speaker 05:
Thank you, Counsel.

[00:23:03] Speaker 00:
Thank you.

[00:23:03] Speaker 05:
We'll hear from the Honey Association, Ms.

[00:23:06] Speaker 05:
Brewer.

[00:23:12] Speaker 02:
Morning.

[00:23:13] Speaker 02:
May it please the court?

[00:23:14] Speaker 02:
This case is somewhat remarkable in that the appellants are not challenging that the three actual statutory factors listed under the factors to consider in this case were satisfied.

[00:23:25] Speaker 02:
They don't challenge the timing and volume of imports.

[00:23:27] Speaker 02:
Indeed, they were significant at 87%.

[00:23:30] Speaker 02:
They don't challenge that there was a rapid increase in inventories of the imports during the six-month periods that were examined by the Commerce Department and by the Commission.

[00:23:39] Speaker 02:
That particular number is confidential.

[00:23:41] Speaker 02:
But it was stated publicly that it was nearly a threefold increase when the comparison months were examined.

[00:23:46] Speaker 02:
And they don't contest that under the third provision that other circumstances indicated that the remedial effect of the order would be seriously undermined.

[00:23:54] Speaker 02:
And part of the commission's analysis there was that rampant underselling by imports of raw honey from Vietnam continued throughout the investigation, even when prices began to rise for imports from other countries.

[00:24:07] Speaker 02:
None of that is contested.

[00:24:09] Speaker 02:
All appellants are asking is that the court read the statute to include another requirement under the general provision that would basically be an escape hatch that would operate such that even though the three factors to consider are satisfied, if inventories are sold off quickly enough before the end of the investigation and the final determination, importers would not be subject to retroactive duties.

[00:24:34] Speaker 02:
And we respectfully submit that that is

[00:24:36] Speaker 02:
incorrect and not based on the plain meaning of the statute.

[00:24:39] Speaker 02:
I'd like to make two points in addition to the ones that Council for the Commission made with respect to the statute, and then I have an additional substantial evidence point that I would like to add.

[00:24:50] Speaker 02:
The first is, if you look at the subsection B of 1673D, B4, which is the critical circumstances provision that applies to the Commission's analysis,

[00:25:03] Speaker 02:
you'll see that the term the imports is used three times, one under the general provision and one under the second provision, factors to consider.

[00:25:13] Speaker 02:
Now again, appellants are not contesting the commission's analysis under the second prong there, the factors to consider, which uses the term the imports two times.

[00:25:23] Speaker 02:
If you look back at the general provision, which states that the commission shall include a finding as to whether the import subject to the affirmative determination, et cetera,

[00:25:33] Speaker 02:
Appellants are asking you to give different meaning to the term the imports in that part of the statute compared to the second, which under basic principles of statutory construction should not be done.

[00:25:45] Speaker 02:
If Congress had intended that that provision be interpreted more generally, it could have just said imports.

[00:25:51] Speaker 02:
But it said the imports.

[00:25:53] Speaker 02:
And in doing so, it referred back to subsection A3, which is the Commerce Department's affirmative substantive analysis.

[00:26:02] Speaker 02:
Stepping back, my second point, is that if you look at the way that the statute is organized overall, and this is again focusing on 1673D,

[00:26:12] Speaker 02:
Subsection A is the Commerce Department's substantive analysis.

[00:26:16] Speaker 02:
Are they going to go affirmative?

[00:26:18] Speaker 02:
Subsection B is the Commission's substantive analysis.

[00:26:20] Speaker 02:
Are they going to go affirmative?

[00:26:22] Speaker 02:
If both of those provisions are satisfied and both agencies reach an affirmative determination, Subsection C is called effective final determination.

[00:26:30] Speaker 02:
That's the only place where the 90 days is discussed, and it only goes into effect as the retroactive suspension

[00:26:37] Speaker 02:
of liquidation.

[00:26:39] Speaker 02:
So that's the proper way to read the statute to give it its plain meaning.

[00:26:43] Speaker 02:
That is supported directly by the SAA, which at page 876 states that if both agencies make affirmative determinations in their final investigations, retroactive duties will be applied for a period 90 days prior to suspension of liquidation.

[00:26:59] Speaker 02:
The Commerce's substantive analysis under A and the Commission's substantive analysis under B are looking at the pool of imports prior to the suspension of liquidation.

[00:27:09] Speaker 02:
And those subsections, well, at least the Commission's subsection references Commerce's subsection so that those analyses are consistent.

[00:27:17] Speaker 02:
And the 90 days only comes into play as an effect of those affirmative findings and as the retroactive period for suspension of liquidation.

[00:27:25] Speaker 02:
So we would submit that the plain language of the statute does not support

[00:27:29] Speaker 02:
appellant argument here.

[00:27:31] Speaker 02:
I would also note that, and counsel for the commission made this point as well, during the underlying investigation, the appellants explicitly agreed to the use of six-month comparison periods for the commission's critical circumstance analysis.

[00:27:46] Speaker 02:
This is cited in the commission's views at appendix page 85, stating that all parties agreed to the use of the six-month periods.

[00:27:53] Speaker 02:
And it cited the appellant's

[00:27:56] Speaker 02:
the Packer Association Appellant's post-hearing brief.

[00:28:00] Speaker 02:
And I would urge the court to look at this confidential exhibit on the record.

[00:28:04] Speaker 02:
It's at appendix page 31751 through 55.

[00:28:08] Speaker 02:
This is a response to a direct question by Commissioner Carpel at the hearing.

[00:28:15] Speaker 02:
where she's asking about the timing of imports in the post-petition period and asking parties to comment on the commission's critical circumstances analysis.

[00:28:25] Speaker 02:
In response to that question, appellants provided a four-page answer in which they adopt the use of the six-month comparison periods and say nothing about having to use a different time period under the statute for the gathering of information.

[00:28:40] Speaker 02:
I see you have gone over.

[00:28:41] Speaker 02:
I appreciate your time, Your Honors.

[00:28:43] Speaker 02:
I'd be happy to answer any questions and otherwise would urge the court to affirm.

[00:28:46] Speaker 05:
Thank you, counsel.

[00:28:48] Speaker 05:
Mr. Kendall has some rebuttal time, about two and a half minutes.

[00:29:11] Speaker 01:
Thank you, Your Honor.

[00:29:12] Speaker 01:
A few points on rebuttal and clarification.

[00:29:15] Speaker 01:
First, counsel for both the commission and the petitioners have told you that we're misconstruing the term the imports in the statute.

[00:29:21] Speaker 01:
We are doing no such thing.

[00:29:23] Speaker 01:
It is clear that those imports relate to the imports by reference to 1673 EA3, that those are the imports within the 90 days.

[00:29:34] Speaker 01:
And so those are the imports within the 90 days that come in and then are put into inventory.

[00:29:38] Speaker 01:
To that point, second, we are contesting the inventory provision.

[00:29:41] Speaker 01:
That is the heart of this appeal.

[00:29:43] Speaker 01:
And it is perfectly logical that imports that come in 90 days before suspension of liquidation are then put in inventory.

[00:29:50] Speaker 01:
And at that point when they are in inventory, they are likely to undermine seriously the remedial effect of the order.

[00:29:56] Speaker 01:
But that's not what happened here.

[00:29:58] Speaker 01:
Those imports did not stay in inventory.

[00:30:01] Speaker 01:
They were sold.

[00:30:02] Speaker 01:
and they were consumed.

[00:30:03] Speaker 01:
And to that point, the record demonstrates that.

[00:30:06] Speaker 01:
The fact that the commission ignored it and the commission's counsel tells you today that it didn't does not undo that fact.

[00:30:12] Speaker 01:
The evidence was in the respondents' post-hearing briefs.

[00:30:16] Speaker 01:
To that point, counsel for the petitioners said that we agreed to the six-month period,

[00:30:20] Speaker 01:
If we agreed, then why did we submit additional inventory data in those briefs and ask the Commission to look at it?

[00:30:27] Speaker 01:
It simply does not hold water.

[00:30:29] Speaker 01:
The Commission also cited the decision of the Court of International Trade, in which it cited to the SAA and the statutory language.

[00:30:36] Speaker 01:
But we would refer you to pages 6 to 12 of our reply brief that demonstrates how both the Commission and the lower court have misconstrued the SAA, which uses various different terms, issue date, effective date,

[00:30:49] Speaker 01:
date of relief, date of the order.

[00:30:51] Speaker 01:
All of these terms have distinct meaning.

[00:30:54] Speaker 01:
If Congress wanted the effective date to be provisional circumstances or relief, it would have said so.

[00:31:00] Speaker 01:
It would have not said the date of the order to be issued.

[00:31:05] Speaker 01:
Furthermore, the Court of International Trade upheld the commission on the basis of a Chevron Step 2 analysis.

[00:31:12] Speaker 01:
That analysis is no longer relevant, and the statutory language is clear.

[00:31:17] Speaker 01:
So it is clear that the commission was required to conduct that prospective analysis.

[00:31:23] Speaker 01:
The commission's attorney tells us that the commission did not rely on claims of stockpiling.

[00:31:30] Speaker 01:
That is not true.

[00:31:31] Speaker 01:
At appendix 541 to 542 in the footnotes, they clearly referenced the claims of stockpiling, which were factually misconstrued.

[00:31:39] Speaker 01:
This is demonstrated at pages 40 to 44 of our initial brief.

[00:31:44] Speaker 01:
I rest my case.

[00:31:46] Speaker 01:
And again, we ask the court to rule that the commission's determination was both contrary to law and unsupported by substantial evidence.

[00:31:54] Speaker 01:
Thank you, Your Honor.

[00:31:55] Speaker 05:
Thank you to all counsel.

[00:31:57] Speaker 05:
We appreciate the arguments.

[00:31:58] Speaker 05:
The case is submitted.