[00:00:00] Speaker 05: We will hear argument next in case number 242242, Eregly, et cetera, versus ITC. Ms. Streetfield. I do want to say at the outset, these three cases are self-evidently very closely related, and you should not... [00:00:23] Speaker 05: Be surprised if there are questions in the change circumstances case about reconsideration, about sunset review, because at least at least if we are trying to make sense of the regime taken together, it. [00:00:42] Speaker 05: It feels important to explore whether, which, if any, avenues there are for doing what your client would like. So please don't feel, don't say, I'm not, happily, you're almost all the same lawyers. [00:01:01] Speaker 05: Don't say, I'm not prepared to talk about that now. I will in 12 minutes be prepared. [00:01:08] Speaker 01: Absolutely, Your Honor. And may it please the Court. I'm Christine Strutfield. from Baker McKenzie, and I represent the Erdemeyer appellants in these three cases that have been deemed companion cases before the court. [00:01:20] Speaker 01: If it's all right with your honors, as an organizational point, I would like to start with just a bit of context and the factual background that applies to all three appeals, and then take each in order. [00:01:33] Speaker 05: I'm going to guess we're pretty familiar with Erdemeyer. that, which is in the investigation. To simplify slightly, there were two Turkish producers, one of them pressed extensively, but together they were initially found to be dumpers. Eventually, one of them got out from under this by getting a ruling that said you don't actually have a sufficient, a non-de minimis dumping margin, and then you're What you have been saying since then is that means that if we were back in the original proceeding, Turkey would have been negligible because you subtract out, I can't say the name, the C company, and what's left is under the 3%. [00:02:22] Speaker 05: And you're trying to find a way to get that done at least on a forward-looking basis. [00:02:30] Speaker 01: I think that's quite close, Judge Toronto, so I appreciate that and I will pick it up from there. I will pick it up to say that through three, there's a number of provisions of law that allow for this decision, this intervening 2020 CIT decision to take effect. And what Erdemeyer has tried to do is availed itself through three specific provisions to go and get legal effect to the ITC on this intervening court decision. [00:03:01] Speaker 05: So I can start with- Just part of the background here is one technique or avenue that you did not pursue was filing an appeal back in, what, 2016 from the original commission decision asking the CIT to stay it and wait for the commerce portion to be litigated, at which point, if you had that, you certainly would have then been able to say to the CIT, we're now in negligible land. [00:03:41] Speaker 05: That's like with a boredom case. Boredom. Boredom, yes. [00:03:48] Speaker 05: But you didn't do that. And in a way, I think that one theme of some of the opinions we have in front of us is that was your opportunity. You missed it. [00:03:59] Speaker 05: So you've got no more opportunity. [00:04:01] Speaker 01: That's correct. And of course, we concede, as we must, that Erdemeyer did not challenge the original 2016 injury investigation. And I think it's a useful place to start on why not. Erdemeyer's position is that at the time of that deadline under 1581C to challenge the original investigation, it didn't have a claim. I think what's fundamentally important under this aspect of the case is that the data that that ultimately supported the change in 2020 is Kolagolu's, the other unrelated Turkish producer. [00:04:41] Speaker 01: Erdemeyer neither had standing nor a cause of action to raise issues that would have related to that unrelated Turkish producer's margin. So it's claim that the court has relied on, the CIT below, really, and it crosses over all three cases. [00:04:58] Speaker 05: I guess I had understood the point being made, I think, by the other side, is that you had a claim, a conditional claim, admittedly conditional on something that had not yet happened but was in, very much in litigation, and that you were obliged to file that claim, which conditional but nevertheless, you know, a real claim that you had. [00:05:34] Speaker 01: Your Honor, it's true that that is what the commission and what the domestic interested parties have said, and it's what the Court of International Trade said, which we believe is legal error. The conditional claim of no injury would have been based on a speculative argument that an unrelated party whose litigation was not known if it would even be filed would go forward, ultimately result in not just a reduction in that dumping margin. [00:06:04] Speaker 05: I thought the timing was such that... [00:06:08] Speaker 05: I think maybe both you and the other company filed the challenge to the commerce determination before the time expired for your filing a challenge to the commission determination. [00:06:21] Speaker 01: That's correct, Judge Toronto. The complaint by Kolagolu, the third party Turkish producer, the unrelated Turkish producer, was filed in advance of the 30-day deadline. That is true on the facts. Both of those cases, our case challenging Erdemeyer's dumping rate and Koligolu's dumping rate, were separate cases that were then consolidated at the Court of International Trade. [00:06:46] Speaker 08: But it's important to identify... Let me just understand, at least for purposes of this particular appeal, are the same factors considered in the analysis for change circumstance reviews and sunset reviews? [00:06:59] Speaker 01: No, Your Honor. And this is another very important point, which justifies why this court should care about this case in addition to the facts presented here, is that the change circumstances review decision by the Court of International Trade accepts and merges the change circumstance review standard and the sunset review standard. [00:07:22] Speaker 07: So essentially... Yeah, what's different? Please focus on that. [00:07:25] Speaker 01: Sure. And then I will get back to the 1581C issue because it's important as well. [00:07:32] Speaker 01: Essentially, the decision by both the Commission and by the Court of International Trade is that they'd be duplicative of each other. What's actually different is two things. One, the statute. the statute calls for separate considerations. So very particularly, the CIT says in its opinion at page 23 that the CCR dispute is mooted by the Sunset Review. [00:07:58] Speaker 05: Let's focus on this very precise question, and I will say from your brief, I did not see you having specified any concrete difference in the question presented in as relevant here, about potential for forward-looking injury, or particularly continuation or recurrence, because it's all governed by 1675 little a without the parentheses. And although there are different timing rules in there, all the substance appears to be exactly the same. [00:08:32] Speaker 01: With a particular exception, and it would be 1675 B1A, [00:08:39] Speaker 05: 6075? Yes. [00:08:40] Speaker 01: Itself? Okay. Yes. [00:08:43] Speaker 05: Yeah. [00:08:44] Speaker 01: B1A requires, and it's mandatory for a CCRA to go forward if there are sufficient change circumstances to warrant a review. [00:08:57] Speaker 01: That sets forth then the requirement in B3A that requires the party that's seeking the review to to meet the burden, to show changed circumstances. Those references to changed circumstances are necessarily backward looking. That is a key difference. The revocation. [00:09:16] Speaker 08: So you're saying there's some sort of retrospective, is that the right word to use? Is that what you're saying is the difference? Because I was not seeing any difference whatsoever. Kind of adding on to the line of inquiry from all three of us at this point now, can you show us exactly, I mean, I want to see words. I want you to give us, like, quotes. I want to see exactly what that difference is so I can really put it together. Sure. Sure. [00:09:47] Speaker 01: And I will also note that in the previous ITC case law, including the folded metal tables case, you see a difference in the application. One, in a sunset review going forward, revocation of an order, if it occurs, and it is the same statutory hook to find revocation of the order, but if it occurs, it's on a go-forward basis in a sunset review. In a CCR, the ITC has revoked the order going back to the original injury order. That's an important piece. [00:10:16] Speaker 05: What's the provision in 1675B, so the changed circumstances review that talks about what entries a favorable decision would apply to? [00:10:30] Speaker 05: And then the counterpart for 1675C. [00:10:35] Speaker 05: It's what you were just talking about. [00:10:37] Speaker 01: Yes. I was referring to, first, 1675, B1A requires the ITC to conduct the review of changed circumstances sufficient that when a party brings circumstances sufficient to warrant a review. [00:10:54] Speaker 05: Right, but I guess, let me just ask, so why doesn't 1675D3 apply, specify the temporal effect as the entries of any revocation under this section, which would be both B and C? [00:11:21] Speaker 04: Oh, is that just a... [00:11:25] Speaker 01: It only applies to Sunset Reviews. [00:11:27] Speaker 04: Only apply to what? [00:11:29] Speaker 01: To Sunset Reviews. That's the particular difference. [00:11:34] Speaker 05: It says a determination under this section. [00:11:39] Speaker 05: The section is the entirety of 1675. Did that... [00:11:55] Speaker 05: Or is this only about suspended investigations? [00:12:02] Speaker 05: I'm sorry to focus. I'm actually sorry. [00:12:05] Speaker 01: No, not at all. I wanted to make sure I can be very precise. Of course. [00:12:10] Speaker 01: So let me take this from the top. [00:12:15] Speaker 01: different statutory regimes because we have to be grounded in the statute and apologies if this wasn't clear in the initial brief. I think in our reply brief at 12, 13, 14, we lay this out a bit better. The different statutes are, one of the key hooks is revocation and where revocation is actually warranted. And that's where we see it applied differently in the case law to the point that I just mentioned. 1675B And 1675 D.3 are these primary differences. [00:12:52] Speaker 01: D.3 is, of course, governed by commerce's revocation of an order, which is the action that has to happen ultimately to govern revocation. 1675 B. [00:13:06] Speaker 05: is not in 1675 D. No, no, I guess I'm just trying to focus on, let's suppose you have one proceeding, a changed circumstances review proceeding, and the commission determines no material injury, and then commerce says, okay, we've got to revoke. The question is, what entries are now still subject to the pre-revocation order, and which ones are not? And then exactly the same question if this goes on in a sunset review. [00:13:40] Speaker 05: Are there different statutory provisions that govern the temporal effect of a revocation, whether the revocation occurs under B or C? I don't see it. [00:13:57] Speaker 01: I believe the answer is there are, and it's D3, which governs saying that the temporal effect is liquidation of any unliquidated entries. [00:14:07] Speaker 05: Unliquidated entries entered on or after the date determined by the administering authority. Does that mean that Commerce, which is the administering authority, has some discretion to say what the, I'm just going to call it the effective date of the revocation is? [00:14:26] Speaker 01: I would say no, that would be published on a go-forward basis from Commerce's determination of revocation. [00:14:35] Speaker 05: So I mean when commerce, after getting the commission no material injury determination in either B or C, commerce does the revocation, right? That's correct. And then in that order, does commerce have discretion to say this is revoked as of, and does it have discretion as to what that date is? [00:14:58] Speaker 05: I thought you started this whole thing by saying yes. [00:15:02] Speaker 05: At least as to B But not as to C? [00:15:07] Speaker 00: I started with respect to B. Are we talking about B to A? [00:15:17] Speaker 05: I'm just talking about, I think we're, I don't, we should probably move on to a different topic. [00:15:22] Speaker 08: If we hold that a changed circumstance review does not provide retrospective relief, then would your appeal be moot? [00:15:38] Speaker 01: No, Your Honor. It would not be moot because there are two additional reasons that the court found that the appeal would be moot besides retroactivity. Now, I do want to note that there are instances, as we've cited in our brief, where Change circumstances reviews do result in a retroactive application, so that's very important. There are also important cases, including Borland, which we've discussed, that specifically say that a change circumstance review is the appropriate vehicle to address circumstances. [00:16:10] Speaker 01: instances like this where margins have changed after the fact. But also, the court said that Erdmeyer was legally required to make that 1581C challenge in order to get the relief in the changed circumstances review, which we believe is also legal error. We didn't get back to that. We can do it in the reconsideration case on why that wasn't required. But I would say that there are two specific cases that that are on point that address this already, and that would be the Home Products International case from this court, where the court said specifically that you can reopen a case below when circumstances changed. [00:16:52] Speaker 01: There's also the Consolidated Electrics case. which also specifically says that the right vehicle for addressing amended determinations that affect margins would be through a changed circumstances review. [00:17:09] Speaker 07: I would just like to make sure I understand your substantive point about claim circumstances review differing from sunset review here. You said there were two statutory bases that were different, if I understood. And I think... They were 1675B1A and 1675D3. Did we get both of the things that you are telling me are substantive distinctions between the analysis that's undertaken in a change circumstances review versus a sunset review? [00:17:41] Speaker 01: Yes, I believe you did. And it's the difference between also the retroactive effect of revocation under 1675D. You would concede... [00:17:52] Speaker 07: the sunset review does not have retroactive effect, correct? [00:17:56] Speaker 01: Yes, we would in terms of the relief. [00:17:59] Speaker 07: Okay. But your contention is that a changed circumstances review opens up the possibility of retroactive relief. That's a distinction you think we can find in these statutes. [00:18:10] Speaker 01: Yes, and there's two points on that. It allows for retroactive relief under 1675D. Also, under 1675B, it requires retroactive analysis in order to assess... So I did want to ask you about that. [00:18:27] Speaker 07: That's your first of the two points. Right. To me, that seems like, and I think this was the view of the trade court, it seems like maybe... [00:18:36] Speaker 07: There's retroactive consideration in order to figure out whether to trigger a changed circumstances review. That is, there's some sort of initial determination with the burden on you to show something in the past or something about your past finding is now materially changed. [00:18:54] Speaker 07: But as I understand it, that only opens up the door to a substantive review that is identical to the sunset review substantive review. What's wrong about my view of that? [00:19:06] Speaker 01: So as an initial matter, Judge Stark, I agree with you in the first instance. One of the legal errors that we have identified is the fact that that first requirement, that a CCR be carried out, wasn't met here. And it wasn't met even though it was triggered. Because the idea was the door is shut because there's no way to look back, even here. So I think the first instance, there was a mistake by the commission. On the second point, if the review is then triggered, The second inquiry here is under 1675B3A, when looking at revocation of the order is likely to lead to recurrence or dumping. [00:19:45] Speaker 01: There should also be a retroactive component that goes into it that allows for... Why? [00:19:51] Speaker 07: What's the statutory basis for that statement? [00:19:54] Speaker 01: The statutory basis is that under B2A, the triggering event has to be whether or not there's a changed circumstance here that warrants the review. But... [00:20:04] Speaker 07: But maybe that would be a better system. But just because the statutory trigger for the CCR is retroactive, let's just simplify and say that you're right about that, doesn't mean that the substantive analysis about whether to grant you relief has anything to do with backward looking, unless you can point to something in the statute that says otherwise. [00:20:30] Speaker 01: Well, I think that the purpose, the differences between the two, the wording of change circumstances, does suggest a backward-looking, on-its-face inquiry. I think it is both in the trigger and in the analysis. That would be equal. [00:20:42] Speaker 05: Well, forget about the trigger. It seems to me you do have one rather appealing textual point about the retrospective point, but it would be equally true of the Sunset Review and the change circumstances review, which is a fairly simple point. If there was never any material injury, it cannot be the case that it is continuing. [00:21:10] Speaker 01: Absolutely. [00:21:12] Speaker 05: And then one needs to figure out what to do about on its face kind of good point, how to think about that in a context where, I don't know, the substance of these interlocking provisions might not quite match up with what on its face seems to require as a predicate. that there have been material injury because there may now be material injury, but if there wasn't before, then the current one is not either a recurrence or a continuation. [00:21:48] Speaker 01: And I think that's exactly right, Your Honor. I think that there is a question of what particular vehicle to put that argument into. [00:21:56] Speaker 05: Right, but that's no, there's, as to that point, the standard is exactly the same, sunset review and change circumstances. I disagree, respectfully. They both have recurrence or continuation of material injury. [00:22:11] Speaker 01: Absolutely. I don't disagree on the language that applies under 1675B. But I think that the fact that two things. One, a CCR is a special circumstance that is a separate provision of the law. So there's a presumption that it's a difference. That takes us to the SAA language, where very particularly the SAA says that In a review, the Commerce Department's changes on margin don't have to be taken into account except for in CCRs. [00:22:48] Speaker 01: That's the last language of the SAA that we have quoted, and I can read it here. I think that's an important distinction. The SAA is giving additional credence to why there is some difference that may not be expressly delineated in the statutes. But I would say that the language in the statute that particularly separates out the changed circumstances does contemplate different analysis than in a sunset review. And in fact, Commission precedent has borne that out. While CCRs might be more limited, they have applied and gone back retroactively. [00:23:22] Speaker 05: I think it's also... On that point, you pointed us earlier to some pages in your reply brief, and I'm looking at page 14 now for this. [00:23:36] Speaker 05: relief. You talk about the, what do you call it, metal lockers from China proceeding. And then you say, see also Parkdale, a CIT case, parenthetical, noting that the statute affords discretion to set the effective revocation date, even in a sunset review. [00:23:59] Speaker 05: And if all of this is about, all of the point about the effective date, and it's all 1675D3, I don't see the difference between changed circumstances review and sunset review. [00:24:19] Speaker 01: I do understand the point, Your Honor, and I do think that the issue on D3 and revocation is only one piece of what makes the CCR different than the sunset review. So I'd ask the court to consider that. In terms of the SAA point that I was raising, I just wanted to note that the specific language is that in looking at whether or not the Commission can take into account the magnitude of dumping, and if so, when, the SAA notes that the Commission essentially does not have to take that into account for later modifications that are made by Commerce, except the Commission, however, may conduct a change circumstance review of its determination under Section 751B on the basis of recalculations by Commerce of the margin in the original investigation. [00:25:12] Speaker 05: Because of the unusual nature of how we have three cases, this feels to me like a good time for you to sit down, knowing that you're going to stand up two more times. Sure. And we're going to continue aspects of the discussion. Maybe we'll hear from the other side. Absolutely. Thank you. [00:25:45] Speaker 02: May it please the court, Ravi Subramanian appearing on behalf of the commission. [00:25:49] Speaker 02: This court should affirm the lower court's ruling finding that Erda Meyer's action was mooted when the commission determined to undertake a full five-year review of the orders on hot-roll steel. [00:25:59] Speaker 05: Can I just ask, I think that this is in the end, I don't know, not that substantive a point, but mootness seems quite wrong. [00:26:11] Speaker 05: With mootness, you assume... the correctness of a non-frivolous merits argument. It seems to me the other side has a merits argument about the scope of change circumstances review being different from sunset review. It might be wrong, but frivolous, I don't think so. So, and this is like chafflin against chafflin, and mootness as a jurisdictional matter seems like the wrong label for saying that as a substantive matter, there really is, when you examine the statutory argument for there being a difference between changed circumstances review and sunset review, with respect to the merits portion of that, which is, that is, what are the grounds for relief once you get the review underway, that there really is no difference. [00:27:09] Speaker 05: And then they would lose under, I think you had the last two pages of your brief saying 12B6. You would dismiss it. But mootness does not seem like the right label for this. [00:27:21] Speaker 05: Well, Your Honor, the... I know that was the language used and actually applied back in the EverReady case. I'll from the CIT a long time ago, but tell me why, and it seems to me that it's still not right. [00:27:40] Speaker 02: Well, Your Honor, in that event, the 12b-6 argument would still apply to the sort of merit suspicion point of it. [00:27:49] Speaker 05: That's why I started this, just by saying I don't think what I just said makes a difference to the ultimate disposition, except as some, I don't know. [00:28:03] Speaker 05: Anyway, the label. If people really thought the label made a difference, then it makes a difference. I'm not sure it makes a difference here because we would affirm a dismissal on the merits anyway. Nobody has suggested there's more proceedings that are required on the underlying questions. [00:28:19] Speaker 02: And I've been keeping with the court's sort of U.S. via dare and sort of Doe v. U.S. [00:28:26] Speaker 02: So Your Honor, on mootness, it And again, I take your point, so I won't frame it in those terms. But the premise of the lower court's various decisions on this is that in terms of the potential remedy Erdemir could have obtained through either a five-year review or a change of circumstance review, they're exactly the same, the prospects of revocation pursuant to a forward-looking evaluation of the record. [00:28:56] Speaker 02: But I take your point that I can be cabin under 12B1 or 12B6 and, you know, I don't think that's... It doesn't matter to the government at the end of the day? [00:29:05] Speaker 07: Is that what you're saying? [00:29:10] Speaker 02: We find that the action is moot on this basis, understanding that the potential remedy Erdemeyer could have obtained would have been exactly the same in either review. [00:29:22] Speaker 02: Mootness, as I understand it, is requiring in this context a government to give Erdemeyer exactly what it has already given it through the five-year review. [00:29:34] Speaker 05: On the assumption... that the other side's argument about there being an important difference in the statute is not only wrong, on the assumption that it's right. When you do a mootness inquiry, like a standing inquiry, you assume that the merits position of the plaintiff is correct. [00:29:57] Speaker 02: I understand, Your Honor. [00:29:59] Speaker 02: Yeah, and we'll concede it to all be six points. [00:30:04] Speaker 02: If I may, Your Honor, before getting to the points I'd like to address on change circumstance reviews, I feel it might be useful to sort of frame the four different pathways or avenues for relief that are here before you today. The first two are backwards looking. One is a timely appeal under the lower court's 1581C jurisdiction, which Erdemir didn't avail itself of. [00:30:29] Speaker 02: We contend that this pathway was not only pathway, but the correct pathway for Erdemir to obtain what it actually seeks. Right. [00:30:38] Speaker 05: Right. So let me, I guess, discuss the following. So when it talks about perspective and backward looking, that can mean at least two different things. [00:30:55] Speaker 05: One is the ultimate relief. That is, prospective relief is certainly different from retrospective relief. Retrospective relief might be here going back to any entries that occurred before the declaration by assumption of, oops, we were wrong. But as the Supreme Court recently decided in this Olivier case, that's a different matter, whether the relief is forward-looking only, from the matter of whether an underlying premise was wrong in the first place. [00:31:41] Speaker 05: Those are two different things. [00:31:44] Speaker 05: It seems to me you have to justify, first of all, it turns out now there may actually even be discretion to give retrospective relief under, in a changed circumstances review, and maybe also in a sunset review. I want to get back to that. But that's not the same question as the question whether you can look back at the original judgment and say, a premise of that is actually wrong, and adjudicate now that question that it was wrong, and on that basis, give forward-looking relief. [00:32:21] Speaker 05: That's what, for example, Rule 60B can do in the civil system. 60B5, something has changed. [00:32:31] Speaker 05: you can give perspective relief from that. An injunction can change. The 60 v. 5 situation sometimes comes up when there's one judgment. In fact, I think 60 v. 5 expressly talks about this. When one judgment relies on an earlier one, And then the earlier one eventually gets disturbed. You can come back on the second one and say, I now want relief. [00:33:03] Speaker 05: I'm trying to figure out how that fits with this regime we have here. And it's not enough just to say 1675 is all forward looking, not all of it, but B and C. [00:33:17] Speaker 02: Well, what I mean to say with respect to backwards-looking evaluations is really retrospective examination, sort of reaching back to the commission's sort of factors the commission considered in its original investigations in order to give, to your honest point, prospective relief. [00:33:36] Speaker 02: Those two pathways are a timely appeal under 1581C, and it's also available through a reconsideration proceeding. [00:33:45] Speaker 02: Where finality has, however, occurred, and due to the importance of finality and the presumption of correctness that underlies the Commission's actions, the Commission rarely institutes reconsideration proceedings. But those are the two retrospective pathways that allow the Commission – to look back in time at its evaluation in the original period of investigation to determine it. [00:34:09] Speaker 07: And just to map it on to the distinction I understand Judge Toronto to be making, you don't concede that under 1581C or reconsideration that retroactive relief is available, but you do say that in deciding whether prospective relief is is warranted, you can consider things that happened in the past. Is that your position? Sorry, Your Honor. Could you clarify your question? I could try. [00:34:39] Speaker 07: Are any – you've conceded there's two mechanisms – this is your point – two mechanisms that are at least backwards looking, right? Yes, Your Honor. Does that mean that one or both of those also allow for retrospective relief, i.e., maybe in a simplification – some of the duties that were paid could be paid back? [00:35:00] Speaker 02: Yes, Your Honor. The first pathway, a timely appeal under 1581C would have afforded Erdemeyer not only revocation of the order, but a return of its duty deposits as soon as the Congress litigation ended. Is that also true of reconsideration or not? No, Your Honor. Reconsideration, depending on the timing, might have allowed Erdemeyer to have obtained or a, say, a requester and the return of any unliquidated duty deposits. But it wouldn't reach back in time in the same way that a timely appeal under 1581C would. [00:35:33] Speaker 05: Is there a statutory or regulatory basis for reconsideration? [00:35:38] Speaker 02: No, Your Honor. Reconsideration. It was recognized by this court in its Tokyo Kikai Seisaku showcase as a... [00:35:47] Speaker 05: I was about to write that down. I'm sorry. [00:35:50] Speaker 02: What was the first letter of that? Tokyo, I believe. Tokyo. Thank you. We refer to it as a TKS in short time. Thank you. But indeed, pursuant to the federal agency's inherent powers to reconsider its final determination, such as when there are material errors in its analysis. Thank you. For instance, it was affirmed specifically with respect. So the TKS case applied specifically with respect to a commerce. What was a change circumstance review of an administrative review which fell outside the statutory scheme? [00:36:26] Speaker 02: And this court construed it as a reconsideration. [00:36:30] Speaker 05: And that can be the relief issue. [00:36:38] Speaker 05: that matter covered by the order sought to be reconsidered. [00:36:46] Speaker 02: With respect to any unliquidated entries, Your Honor, the other two, their forward-looking pathways, are a change circumstance review and a five-year review. And I understand there's a little bit of confusion about sort of where one ends and the other starts. But I thought it might be useful to reach back. [00:37:09] Speaker 05: What about the cases that your friend on the other side referred to? And I'm looking, I guess, page 14 of her reply brief, the metal lockers from China, which I think was a CCR case, and then the Parkdale case, which seems to say Well, I don't know what the case was, but the parenthetical says that the CIT recognized that the statute affords discretion to set the effective date even in a sunset review. I haven't read the case, so I'm just reading the parenthetical. [00:37:43] Speaker 02: Your Honor, while I can't speak definitively to commerce issues, my understanding is that metal lockers and the retroactive relief afforded there is consistent with commerce's approach to scope-related amendments or changes, where it reaches back to all unliquidated duty entries. And that apparently follows a Federal Circuit precedent, I think sometime around 2010 that directed commerce to do that so it My understanding again is that it's very specific to the scope related context your honor With respect to the Parkdale International case, the issue there was Commerce's selection of the anniversary date of an order following a second sunset review. [00:38:34] Speaker 02: Commerce selected the date of continuation of the order, which was – it fell sometime in 2005 – respondent plaintiff argued that the correct date should have been the date on which the original order was amended, which would have pushed the timeline back another five years. [00:38:55] Speaker 02: In neither of those cases did, for the scope modification, for instance, the original scope sort of definition wasn't set aside or revisited in any way. And Parkdale also didn't implicate any sort of revisiting of Commission documents. injury determination issues. They didn't reach back. There's no reopening of the record in either of those cases. So I don't know that they quite support Erdemir's argument. [00:39:25] Speaker 07: Okay. [00:39:27] Speaker 07: Could I? So there's four pathways. You've put two in the retroactive bucket and two in the prospective bucket, just to be. Yes, Your Honor. And just CCR, because we're technically in the CCR appeal, I believe, you've put in the prospective bucket. Yes, Your Honor. Your friend on the other side wants it in the retrospective bucket, and she says it's because of 1675B1A and 1675D3. Just briefly, if you could, tell me why she's wrong about both of those statutes making that a retroactive proceeding instead of prospective. [00:40:04] Speaker 02: Yes, Your Honor. So revocation is framed in prospective terms in D3. It applies with respect to unliquidated duty entries. Commerce's regulations, I believe at 351.222G4, also frames the relief in prospective terms. [00:40:27] Speaker 05: What about the first provision, 1675B1A, I believe? [00:40:33] Speaker 02: Is that what counsel cited? Sure. And so I think, Your Honor, what the confusion there seems to be is that a change circumstance really is anything relating to changes in import volume or market conditions. They're analogous to the conditions of competition that the Commission typically examines in its injury determinations. [00:40:56] Speaker 02: That's all a change circumstance is, and the CIT discussed this in its Hirsch 1 decision of 1990, where it gives a sort of very comprehensive overview of the Commission's practice under CCR as current to that time. [00:41:11] Speaker 05: I mean, just as a language matter, legal language, it's Mr. May. [00:41:21] Speaker 05: Forget legal languages. Legal languages, change circumstances could mean a number of different things, and maybe it means a change in the state of the world, of the import world. But I think it's the case, and you can tell me if I'm wrong, and I'm not feeling terribly solid, but in... [00:41:41] Speaker 05: under Rule 60, which I think is identical between the CIT and I realize we're in commission land, we're not in court land. But in court land, Rule 60B-5 in particular, it doesn't use change circumstances language, but lots and lots of cases and treatises and whatnot call that the change circumstances provision. And one of the change circumstances is an expressly listed one, which is not that the world has changed, but that there's been a change in a legal ruling that underlay the judgment that you're seeking to relief from under 60B. [00:42:28] Speaker 05: And that's essentially what's going on here. [00:42:31] Speaker 05: There was a legal ruling about the C company not dumping. And that suddenly took out of the numerator in the 3% calculation a important importer. [00:42:53] Speaker 05: And the argument was that really makes a big difference in whether the imports from Turkey under the order past the 3% threshold. [00:43:08] Speaker 02: I understand, Your Honor. There are different frameworks under the commission system. [00:43:14] Speaker 05: Why should they, though? I mean, the statute here does not say what we mean by changed circumstances, some narrower class of situations than what out in court land would be considered possible change circumstances, like a change in an underlying legal ruling. [00:43:39] Speaker 02: I understand, Your Honor. Under the forward-looking standard in the statute at 1675A, There's simply – it doesn't lend itself to that sort of an examination. What the commission did in the five-year reviews, which we argue we would have done in any change circumstance review instituted, is exactly what we did in treating Cholokolu's imports, previously found subject under the order as non-subject. [00:44:09] Speaker 02: That is all the framework really allows us to do prospectively. [00:44:15] Speaker 02: I understand Erdemeyer's argument as being that the lack of injury at a point in time in the past as a condition precedent of sorts voids that any injury or any injury determination. [00:44:30] Speaker 05: What about the statutory language point that I raised for consideration earlier? [00:44:37] Speaker 05: Both the Sunset Review and the Changed Circumstances Review direct the inquiry to whether there is a likelihood of no recurrence or no continuation of material imagery. Now, the one thing just as a language matter that you cannot have is a recurrence or continuation of something that never in fact existed. [00:45:00] Speaker 02: I understand, Your Honor. Under the statutory scheme, the continuation or recurrence of dumping, at least for purposes of the Commission's forward-looking injury analysis, presumes the continuation of dumping and subsidization, absent any other determination by Commerce. [00:45:21] Speaker 07: That is, if I'm understanding you correctly, there's an interest in finality and a finding was made here that that was not challenged on appeal and it became final. And so even if we may know retrospectively that the evidence didn't support it, it has ongoing legal reality. Yes, Your Honor. [00:45:42] Speaker 02: So on the two prospective standards, if I may, the first to change circumstance reviews were introduced into law in 1979 pursuant to the Trade Agreements Act of that year. And it implemented the United States obligations under the Tokyo Anti-Dumping Code. What was then Article 9.2? At the time, a changed circumstance review presented parties, typically respondent interests of parties, with the only pathway to seek revocation of an order on a going forward basis, until passage of the Uruguay Round Agreements Act in 1994, which implemented the five-year review statute. [00:46:27] Speaker 08: So maybe just to sum up, because we're We're well into this particular argument. We've got a few more of these. [00:46:33] Speaker 08: What would you say in terms of just the analysis? So ignoring the triggers, right, like let's get into the analysis, would be the difference between a CCR and a five-year review or a sunset review? [00:46:45] Speaker 02: Thank you, Your Honor. So the only difference really, but material difference, is that the scope of the conditions of competition, so what I referred to before as factors implicating changes in import volumes or market conditions, are or they tend to be narrower in a change circumstance review. [00:47:04] Speaker 02: than they would in a five-year review that proceeds more broadly to undertake an examination of conditions relating to, for instance, demand conditions, conditions of supply, substitutability, and such. [00:47:17] Speaker 02: So they tend to be more narrowly focused. But if I just make two points on sort of procedural differences – These certain aspects of the statute would actually have worked to Erdemeyer's disadvantage in that under the CCR statute at A3, they're subject to the – well, they carry the burden of persuasion, which – which they didn't do in a five-year review. And moreover, there is retroactivity in a sunset review in the sense that if an order falls by the wayside, is revoked, that revocation is backdated to the fifth anniversary date of an order or continuation of the order, as the case may be. [00:48:03] Speaker 02: And so that also would have theoretically been near to Erdemeyer's benefit. [00:48:10] Speaker 05: Okay. Let's move this forward, this proceeding. Thank you, Your Honor. You're going to have yet to stand up again, so please. Please. [00:48:29] Speaker 03: Good morning. Your honors may please the court. I'm Jeff Garish of Chagrin Associates on behalf of Steel Dynamics and SSAB. I will start with talking about the changed circumstances review appeal, but I know we will probably morph into other discussions here. But I think to get to the heart of the issue here, The statutory provisions dealing with sunset reviews and change circumstances reviews and the legislative history provide for the exact same standard to be applied, whether revocation of the order would be likely to lead to continuation or recurrence of injury. [00:49:03] Speaker 03: It provides for the exact same criteria to apply. [00:49:06] Speaker 05: I think I get that about the statute. [00:49:09] Speaker 05: Talk about that. paragraph in the Statement of Administrative Action, which does call out 1675B. [00:49:18] Speaker 03: It does. And it generally says that the Commission is not to reconsider or revisit its determinations based on changes in the dumping margins that Commerce has determined. As a general matter, right? Correct. [00:49:35] Speaker 03: And then it provides for a changed circumstances review to be conducted under Section 751B, which, of course, is 1675B. [00:49:45] Speaker 03: Now, then you go back to, of course, the statute here, 1675B, and what it says about changed circumstances reviews, which is that they are to be conducted on a prospective basis. You're to determine what's likely to happen in the future. Now, I will say you do look at, okay, has there been a change since the original determination to determine whether a change circumstances review should be conducted? But once you are in the process of conducting the change circumstances review, you are doing that on a prospective basis. [00:50:18] Speaker 03: What is likely to happen based on that change that's occurred? [00:50:21] Speaker 05: I mean, everybody on your side just keeps asserting that. The question is, What in the statute tells us that? And the fact that everybody has been saying it for many years, you know, that sort of matters, but it's not actually the statutory question. [00:50:39] Speaker 03: Well, it says in, and this is in 1675B2, it says, in conducting a review under this subsection, which is the changed circumstances review provision, in the case of a countervailing duty order or anti-dumping order, determine whether revocation of the order or finding is likely to lead to continuation or recurrence of material injury. [00:51:01] Speaker 05: There are those words again, which you've heard me now twice. [00:51:06] Speaker 05: call out as pointing, at least on their face, in favor of the other side and not you. Recurrence or continuation, those things cannot metaphysically occur if the thing didn't occur, if there never was such a thing in the first place. [00:51:26] Speaker 03: Well, as a legal matter, it did occur because that original determination of material injury and all aspects of that determination became final. Right. [00:51:35] Speaker 05: So, I mean, I do think that the kind of answer that you need is don't take those words as an invitation to decide the premise when, as a legal matter, there is an undisturbed contrary finding. [00:51:56] Speaker 05: Right? So, I mean, this is like we're going to entertain what might be a fiction, but that we're bound with by an undisturbed finding of material injury in the first place. Undisturbed because there was no appeal taken from it. This is the finality point. [00:52:14] Speaker 03: Yes, it is. That's correct. It's undisturbed and fine. [00:52:17] Speaker 05: So is your understanding... [00:52:21] Speaker 05: I guess my general sense, but highly unreliable, is that that would not be the case under Rule 60B. [00:52:30] Speaker 05: You do not have to have an appeal going to come in and say there's a legal, a change in an underlying legal ruling that now makes a otherwise final determination no longer good. [00:52:51] Speaker 03: Well, I think in this context, though, because the statement of administrative action also says that where there – It provides for the commission to rely on the most recent dumping determination and dumping margin calculated by Commerce. That's in 19 U.S.C. Section 167735C, that they are to rely on the, at the time that they close their administrative record, they are to rely on the most recent determination by Commerce. [00:53:21] Speaker 03: That's exactly what the commission did here. [00:53:23] Speaker 05: The sentence in the SAA, After saying, in general, we're not going to have finality of injury determinations be seriously compromised if the commission were required to amend its determination each time the administering authority modified its dumping commission. Then it says, the commission, however, may conduct a changed circumstances review of its determination pursuant to 1675B on the basis of recalculations by commerce of the dumping margin in the original investigation if the party seeking such review establishes that it is warranted. [00:54:06] Speaker 05: Explain what that sentence is, because it's in a changed circumstances review. [00:54:11] Speaker 03: You get to... You get to consider the future effect of what has happened in terms of the change, meaning the removal of Choakolu from the order. You consider what will likely happen in the future... [00:54:28] Speaker 03: As a result of the removal of that particular company from the order, and that is exactly what the commission did in the Sunset Review. It removed Cholokolu's imports from any consideration of what was likely to happen going forward. and it determined that it should find that there is a continuation of recurrence of injury going forward. So that is what it provides for. That's exactly what they did in the sunset review. So through the full sunset review, the commission has provided all of the relief that could be potentially available to Erdemeyer in a changed circumstances review. [00:55:07] Speaker 07: I have a concern that even if you're persuasive on the statutory points that you were just talking with Judge Toronto about, whether that makes any sense at the end of the day. And I guess the way to ask it is in the gray brief at page 12 in this first case, the CCR case, your friends on the other side say, What you're acknowledging is that we can look backwards and at Chihuahua's removal for determining whether we can do a change circumstances review. [00:55:44] Speaker 07: But then as soon as we get in the door and decide we can do a CCR, we have to forget all about that and only focus on the future. And they call that absurd, and maybe they're right. So, A, is that your position? And if so, why isn't it absurd? [00:56:01] Speaker 03: It is our position because I think that's – under the statute, they have to make a determination, the commission does, whether to initiate a change circumstance review. And there must be a change in the circumstances. So they will look to see what – has there been a change from what we determined originally? [00:56:18] Speaker 07: But then they have to like – wipe their minds and forget all about that and only focus on the future is what you're admitting is your position. So why isn't that absurd? [00:56:27] Speaker 03: Well, it's not absurd because the statute provides specifically for a forward-looking analysis. And it's not just in 1675 itself. [00:56:35] Speaker 07: It's in 1675 small a. For purposes of the question, assume I agree with you on the statute. Sometimes if statutes have absurd results, we just go with it. But sometimes we say that's just too absurd to live with. So why is it not too absurd to live with here? [00:56:50] Speaker 03: Well, and I think it's clear it's in line with congressional intent because, again, if you go back to the statement of administrative action, it talks about both sunset reviews and changed circumstances reviews together, and it says it's a prospective inquiry. [00:57:04] Speaker 03: It's inherently predictive and speculative, and you look at – and this is the language in the SAA at page 883 – you look at the impact in the reasonably foreseeable future – of what is likely to happen, and in this instance it would be when you remove Cholikulu from the imports here, what is likely to happen in the reasonably foreseeable future. So it is purely future-focused, and that's what congressional intent makes clear throughout these provisions, and that's how the commission generally conducts its analysis. [00:57:41] Speaker 05: We'll get to the sunset review, I guess, in a little while, but... [00:57:48] Speaker 05: Why did the commission in the Sunset Review take account of this changed circumstance? Why did it? [00:57:58] Speaker 05: The other side says they didn't, actually. Your side says they did. Why? [00:58:04] Speaker 03: They did because... Cholikolu had become a non-subject producer because it had been removed from the order. So they took the facts as they stood then and determined that they could not include Cholikolu's imports in the analysis that they were doing on a going forward basis. So that's why they took account of that. And they made the determination on the basis that Cholokulu was not part of the subject imports. [00:58:34] Speaker 05: At least where, and I guess we're in this particular case, really, I mean, just reviewing the question whether it was correct, and I'm putting completely aside standards of review. Correct for the commission to say, we're not going to do a change circumstances review because the only thing we would be doing is what we've just done. And there's absolutely no difference. And because in the sunset review, the commission, assuming. [00:59:06] Speaker 05: in footnote 276 or something to putting aside the company that was determined not actually ever to be dumping, that that too is a reason there can't be a difference for the change circumstances review. Is that right? [00:59:24] Speaker 03: That's right, because they did take them out and said very explicitly they were taking them out from the analysis that they were doing in the sunset review. So that would have been no different in a changed circumstances review as well. [00:59:44] Speaker 05: Let's move this proceeding further. [00:59:47] Speaker 05: Okay. [00:59:48] Speaker 07: Thank you. Not quite sunset yet, I don't think. [00:59:59] Speaker 05: You know, you're going to get to say what in the next case. Yep. But if you have something that make this really limited to something that feels like rebuttal, and then I have to actually read the number of times. [01:00:13] Speaker 01: Absolutely. I think I can do that. And I would like to address what we've been calling, you know, after the triggering event of a CCR, what is it that would require a difference in the CCR versus the sunset review on these past circumstances? Because it's critical here, and apologies if I wasn't able to be clear in the last discussion, but it's the difference between 1675B2 and 1675B3. [01:00:40] Speaker 01: and particularly the languages during the review, the Commission has to consider whether the party has shown sufficient change circumstances. And our position is that that requires that the change circumstances be considered both as a triggering event that by statute makes the CCR mandatory, and then in the review, looking at those changed circumstances, which are retroactive necessarily because they are in the past, and accounting for them in the CCR. [01:01:16] Speaker 05: Right. So I guess what that makes me think of is the point that I ended with in the last – if the CIT in the Sunset Review provision is correct that the Commission in this Sunset Review – eliminated the effect of the non-dumping Turkish entity, then in this particular request for change circumstances review, the difference you just identified would not be a difference. [01:01:54] Speaker 05: between what it would do if it conducted the review and what it, in fact, already has done in Sunset Review, by assumption. [01:02:03] Speaker 01: I think you might be right if it was clear on the Sunset Review record that the 2020 litigation was given full effect. We obviously take issue with the fact that it was. So that's its own independent problem. But I would also submit that the change circumstance review statute exists for a reason. It exists for a reason. We've been focused on the statutory text, which makes perfect sense. I've highlighted the fact that the actual words change circumstances have to mean something. [01:02:34] Speaker 01: That, we talked about, trigger at least the review. [01:02:38] Speaker 01: Then, once we're in the review, it's 1675B3 that I believe also mandate the ITC be looking at those past circumstances and give them meaning and effect in the changed circumstances review. In most cases, there's also a timing component, which matters, which is punting to a sunset review as a matter of overarching sort of black-letter law that it's moot to hold both if a sunset review is pending, is problematic. [01:03:08] Speaker 01: And I think timing-wise here, there's a bit of confusion on the procedural record with the way the ITC handled Erdemeyer's various requests. I think that takes us into the reconsideration, which I'm happy to move on to, [01:03:23] Speaker 05: I agree we should move on to the case, but I do need to say, because the tapes will be separate. [01:03:32] Speaker 05: So we will take this case under submission.