[00:00:02] Speaker 05:
We will hear argument first in number 15-1216, Diamond Sawblades Manufacture against the United States, Mr. Grimsic.

[00:00:20] Speaker 00:
Good morning, Your Honor, and may it please the court, Jeff Grimson for Appellant Hyosung.

[00:00:25] Speaker 00:
I'm also giving the direct presentation for a co-appellant

[00:00:29] Speaker 00:
Council speak up a little, would you please?

[00:00:31] Speaker 00:
Sure.

[00:00:32] Speaker 00:
I'm giving the direct presentation for Appellant Hyosung, as well as co-appellant Ewa, who will do the rebuttal for the appellant side of the case.

[00:00:41] Speaker 00:
In 2007, Commerce discontinued zeroing and anti-dumping investigations.

[00:00:46] Speaker 00:
Our Sawblades case was not completed in 2009.

[00:00:49] Speaker 00:
As a result, Commerce included five words of computer code that cost our clients importers millions and millions of dollars.

[00:00:59] Speaker 00:
When Commerce started the process of changing the law to eliminate zeroing in 2006, they said it would be effective for petitions initiated after publication of the final modification.

[00:01:12] Speaker 00:
But they went away from that and went more broad in the final modification where they made the effective date, they made the change effective for all investigations pending before the department, that's in one part of the final modification notice, and in the second part,

[00:01:28] Speaker 00:
They said it would apply to quote, all current and future anti-dumping investigations as of the effective date.

[00:01:35] Speaker 00:
These terms aren't defined in the notice.

[00:01:38] Speaker 00:
Ongoing, pending, current.

[00:01:41] Speaker 00:
Well, Commerce's regulations help us understand how Commerce's proceedings operate and they're very clear.

[00:01:48] Speaker 05:
Can I just ask, so the summary says that the schedule for implementing the change is found in the timetable section.

[00:01:58] Speaker 05:
And that's the sentence that does not have the phrase before the department.

[00:02:06] Speaker 05:
But that still leaves open what exactly this phrase is supposed to mean.

[00:02:11] Speaker 05:
And then one starts looking for, I guess one could call them clues about what it means.

[00:02:21] Speaker 05:
And the first thing you get is this slightly different language in the

[00:02:26] Speaker 05:
in the comment section, that language itself is not terribly clear, but what's awfully precise are the two statements that this is meant to apply except for future proceedings only to seven petitions and only to petitions filed after March 6th, 2006.

[00:02:49] Speaker 05:
That's a very, those are two very strong clues.

[00:02:53] Speaker 05:
And so my question is,

[00:02:55] Speaker 05:
When everything else is actually not that clear, how is it that we don't defer?

[00:03:02] Speaker 00:
Well, um, first, your honor, um, I would read the timetable section as the operative timing section of this notice.

[00:03:10] Speaker 00:
And this is after notice and comment where the United States went to this torturous process of adopting WTO panel hearing.

[00:03:18] Speaker 00:
The three paragraphs, um, that you're referring to in the middle of the first, second, and third that mentioned the seven

[00:03:25] Speaker 00:
pending cases, that is explanation of why it was fair to make this retroactive, which is a big deal.

[00:03:32] Speaker 00:
It's the only Section 123 change in the law that's been retroactive.

[00:03:36] Speaker 05:
What I really want to understand is how do you get beyond a recognition of ambiguity, uncertainty, imprecision in any of the language

[00:03:51] Speaker 05:
which if it exists, then requires us doesn't tell me.

[00:03:55] Speaker 05:
I mean, do you think it does require us?

[00:03:57] Speaker 05:
If, if one found uncertainty, does it require us to defy the Congress's interpretation?

[00:04:04] Speaker 00:
Well, this is something that is a big hole in the court's decision below because there is an eighth case that commerce applied this final modification to.

[00:04:13] Speaker 00:
That's not one of the seven and all parties agree that the case on polyvinyl alcohol from Taiwan.

[00:04:19] Speaker 00:
was off at the court, just like Sawblades, at the time this notice was published.

[00:04:24] Speaker 04:
So if you were to... But in that case, there was no final determination made at Commerce.

[00:04:31] Speaker 00:
That's correct, but the regulatory end of the case occurred after the final modification.

[00:04:37] Speaker 00:
By regulatory end, I mean, what does the regulation say is the end of a case?

[00:04:40] Speaker 00:
They say it's the publication of an order.

[00:04:43] Speaker 00:
The idea that, well, that case was a little bit earlier in the process than Sawblades,

[00:04:47] Speaker 00:
is really a lot of post-hoc explanation that you will not find on our administrative determination anywhere.

[00:04:54] Speaker 00:
That is the very kind of post-hoc reasoning that you do not need to defer to under our and the Supreme Court's Christopher case.

[00:05:03] Speaker 00:
It is litigating position entirely.

[00:05:06] Speaker 04:
The regulation- But there are distinctions.

[00:05:08] Speaker 04:
That's the point I'm trying to make.

[00:05:10] Speaker 04:
There are distinctions between the facts in that case and

[00:05:15] Speaker 00:
Well, I mean, we spent a great deal of time in our brief pointing out how those are distinctions without a difference.

[00:05:24] Speaker 00:
For example, unlike in polyvinyl alcohol, we actually argued the Section 123 change of zeroing in our briefs at the administrative level.

[00:05:33] Speaker 00:
Commerce just didn't address it.

[00:05:35] Speaker 00:
They said, this is premature.

[00:05:37] Speaker 00:
Nobody argued anything in polyvinyl alcohol, and Commerce applied the change because it came back for publication of the anti-dumping order

[00:05:45] Speaker 00:
after the final modification was issued.

[00:05:48] Speaker 00:
The regulation is very clear on what is the beginning and end of a case, an investigation at the Commerce Department.

[00:05:55] Speaker 05:
I'm just not remembering very well.

[00:05:58] Speaker 05:
When Commerce decided to apply the new policy to polyvinyl, did it say it was doing that because that investigation

[00:06:14] Speaker 05:
had in fact been pending as of January 2007 or February, or that it was newly pending when it came back, having died a premature death earlier.

[00:06:29] Speaker 00:
Commerce's notice in Paliwana alcohol has zero discussion of why they had discontinued zeroing in that case.

[00:06:37] Speaker 00:
Nothing.

[00:06:38] Speaker 05:
So what would be wrong?

[00:06:40] Speaker 05:
And again, I don't remember and I can ask the government.

[00:06:43] Speaker 05:
Um, is it the government's view now or what would be wrong with the view that the polyvinyl investigation was newly pending when it returned in whatever year it returned, but well after February, 2007.

[00:06:59] Speaker 00:
That takes a great leap beyond what this, what we consider has the force of a regulation.

[00:07:05] Speaker 00:
This notice after final, after public comment, notice and comment, the 123 change.

[00:07:12] Speaker 00:
that is reading an awful lot into that, that was not expressed in that notice and was not expressed in polyvinyl alcohol.

[00:07:19] Speaker 05:
I mean, there's no doubt that the final modification applies to new investigations.

[00:07:29] Speaker 05:
So why wasn't polyvinyl when it returned a new investigation?

[00:07:34] Speaker 00:
Well, that brings up a point that I'd like to discuss, which is, aren't we also

[00:07:41] Speaker 00:
You could argue about whether we were pending before at the time of this 2007 notice, but you can't argue that we were current and future when the case came back for the anti-dumping order to be published in 2009, for it to be amended in 2010, and again in 2014.

[00:07:59] Speaker 00:
Three further bites that the Apple commerce had, and it wasn't until the order was published that the case was actually finished under commerce's own regulations

[00:08:10] Speaker 00:
which clearly defined the beginning and end of a case.

[00:08:13] Speaker 00:
The beginning, 351.102.30, Commerce's regulation says a case begins on the date of publication of initiation and ends at the earliest of, and we have two of these actually, termination due to a negative, I'm gonna paraphrase, due to a negative ITC.

[00:08:31] Speaker 00:
We had that one, the case stopped and went off to the court, but then it came back to Commerce for its second life

[00:08:38] Speaker 00:
And it didn't end until publication of the order.

[00:08:40] Speaker 00:
That's 351-102-30, little Roman numeral four.

[00:08:46] Speaker 00:
So, I mean, to me, the question is really for government's counsel.

[00:08:50] Speaker 00:
When you published that anti-dumping order in 2009, what segment of the proceeding were you publishing that order in?

[00:08:58] Speaker 00:
It has to be in the investigation.

[00:09:00] Speaker 00:
It wasn't an administrative review, which is another segment of the proceeding.

[00:09:05] Speaker 00:
The dumping cases are like chapters in a book.

[00:09:07] Speaker 00:
diamond saw blades from Korea.

[00:09:09] Speaker 00:
The chapters are investigation, review, change circumstances review, sunset review.

[00:09:15] Speaker 00:
We didn't finish chapter one until after commerce changed the law pursuant to a loss at the WTO.

[00:09:24] Speaker 00:
Commerce went through the steps that were missing in the core Stahl case where you said, we're not going to get into giving full recognition to international obligations because commerce hasn't gone through those steps.

[00:09:38] Speaker 00:
Now they have, and they tended clearly to make the final modification applicable more broadly than just to new petitions, which was what they started with.

[00:09:49] Speaker 00:
So we believe you shouldn't leave the ninth case out in the cold and let them apply to an eighth case, which clearly diverges from their explanation.

[00:09:58] Speaker 05:
Is the universe that is potentially on the table if your position prevails here?

[00:10:05] Speaker 05:
nine or is it a lot more than nine?

[00:10:09] Speaker 05:
Is this basically the only case that's going to raise your question?

[00:10:13] Speaker 00:
ITC negatives that get turned around in court and come back for an order are exceedingly rare.

[00:10:20] Speaker 00:
It just happens that there are two of them in this case, the PVA case, which died a premature death and then came back, and our case.

[00:10:30] Speaker 00:
We are not different from PVA in the sense that under Commerce's own regulation,

[00:10:35] Speaker 00:
case did not finish until the anti-dumping order was published.

[00:10:41] Speaker 03:
I don't think that's quite responsive to the question.

[00:10:44] Speaker 03:
The question is how many cases like yours have caught in this swing?

[00:10:49] Speaker 00:
I think there's the seven that Commerce mentioned that we all agree on.

[00:10:53] Speaker 00:
PVA, which they applied the new change to, and us.

[00:10:56] Speaker 04:
The seven that were referred to were pending before Commerce, correct?

[00:11:03] Speaker 04:
They were pending the fair market determination, not the injury determination.

[00:11:10] Speaker 04:
How many other cases were pending before the ITC at that time that had not been finalized?

[00:11:19] Speaker 00:
I do not know, but those would have been within commerce's count of the seven.

[00:11:24] Speaker 00:
Because again, the regulation set up when a case begins and ends.

[00:11:28] Speaker 00:
And if a case begins at the commerce department, so it would have been counted in the seven.

[00:11:32] Speaker 00:
That means it also began at the ITC.

[00:11:35] Speaker 00:
You see they're filed at both on the same day.

[00:11:37] Speaker 00:
So I'm not aware that there is any more than the nine total cases that we're talking about here.

[00:11:44] Speaker 03:
Council, I couldn't find in the materials any indication of what's really at stake in this.

[00:11:50] Speaker 03:
Is it a whole big bunch of money or what's going on?

[00:11:53] Speaker 00:
I mentioned in my introduction that for our client, our one client importers, Yo-Sung,

[00:12:00] Speaker 00:
We're talking in excess of $5 million because there are five words in a computer code that commerce, all they have to do is delete.

[00:12:09] Speaker 00:
How do we know that?

[00:12:10] Speaker 00:
Because they actually did it a few years later when the second WTO case came down and says, now you really have to do it.

[00:12:16] Speaker 00:
They removed those five words.

[00:12:18] Speaker 00:
Our client was not dumping.

[00:12:19] Speaker 00:
AWOL was not dumping.

[00:12:21] Speaker 00:
They were never dumping during this time but for the zeroing.

[00:12:24] Speaker 00:
I see I'm well into my colleagues' rebuttal time.

[00:12:29] Speaker 05:
We'll restart that time.

[00:12:30] Speaker 05:
Thank you very much.

[00:12:38] Speaker 06:
Mr. Swardolf.

[00:12:40] Speaker 06:
Good morning, Your Honors.

[00:12:41] Speaker 06:
May it please the Court.

[00:12:42] Speaker 06:
Before I get into my argument, I thought that I might address very quickly the question that the Court posed to my colleague, which is how many proceedings are in a similar posture as Diamond Salveley's.

[00:12:54] Speaker 06:
And in particular, I take the question to be

[00:12:57] Speaker 06:
how many proceedings had a final affirmative determination or a final determination by the Department of Commerce, but no order until after the 123 proceeding.

[00:13:08] Speaker 06:
And if that is the question.

[00:13:10] Speaker 06:
That is my question, yes.

[00:13:12] Speaker 06:
The answer, I believe, is that there were 15 proceedings where the 123 section basically bifurcated that point between the final determination

[00:13:23] Speaker 06:
And the order, the diamond saw blades is the only one that was appealed and that was, uh, litigated.

[00:13:30] Speaker 06:
I believe the other cases have now been, uh, the time for litigating them has passed.

[00:13:34] Speaker 06:
The decisions have become final.

[00:13:36] Speaker 04:
So as Judge Toronto characterized it as we have another clue as to what commerce meant when it talked about pending before the department that

[00:13:48] Speaker 04:
It was not the cases where there was no final determination by commerce, where there was something pending before the ITC.

[00:13:55] Speaker 06:
That's absolutely correct, Your Honor.

[00:13:57] Speaker 06:
The 15 cases that I just referred to were not included in the count of the seven that the department characterized as pending before it.

[00:14:05] Speaker 06:
And the term pending before the department, as Your Honor's question recognizes, does suggest determinations

[00:14:16] Speaker 06:
uh... which in which commerce had not issued a final decision and we know that from four different sources.

[00:14:21] Speaker 03:
Did the department recognize at the time they wrote these conflicting rules uh... that there was a problem here or were you totally unaware of it and you could have dealt with it by using a simple uh... statement like until final determination something simple and then we wouldn't go through all this was there no recognition of the

[00:14:45] Speaker 03:
fact that there had to be a transition.

[00:14:47] Speaker 06:
I think at the time that this determination was made in the language that commerce decided on which language to use, it felt that it was being very clear.

[00:14:56] Speaker 06:
Now, obviously, I believe that commerce felt that it was being very clear when it wrote this language.

[00:15:02] Speaker 06:
Now, as this court is aware, the diamond saw blade litigation has a very

[00:15:07] Speaker 06:
unique procedural history and certainly unexpected things happened that raised the question about what this language means in this context in a way that it was not raised for the other fifteen investigations.

[00:15:20] Speaker 06:
But we do know that there are at least four different sources, I think, that confirm that pending before the department really does mean... Can you talk about the PBA situation and how that

[00:15:35] Speaker 05:
Um, what, what, what is the basis on which you, well, first of all, do you say that that case was pending before the department in December 2006 to February 2007?

[00:15:52] Speaker 06:
Uh, no, your honor, I, I do not think it can be characterized as pending in the, in the, well,

[00:16:00] Speaker 06:
I'll say this, the case had... It depends on what you mean by pending, doesn't it?

[00:16:04] Speaker 06:
It does, it does depend, Your Honor, absolutely.

[00:16:07] Speaker 06:
I think that's when we get into the inquiry of sort of the supporting evidence about what pending really means.

[00:16:17] Speaker 05:
Well, I'm trying to understand, I guess, what your theory is for accommodating what commerce did, and I guess it seems to me there are two possibilities, but tell me maybe I've missed some possibilities.

[00:16:30] Speaker 05:
It was pending at that time.

[00:16:32] Speaker 05:
The other is it was new when it came back.

[00:16:38] Speaker 06:
Our operative theory, your honor, is that investigations in which there had not been a final determination are subject to this policy change.

[00:16:49] Speaker 06:
Because they're pending?

[00:16:51] Speaker 06:
Because, either because they're restarted afterwards, either because they're started afterwards.

[00:16:56] Speaker 06:
or because they're pending.

[00:16:57] Speaker 06:
You will recall, Your Honor, that the policy change- It wouldn't have been started.

[00:17:00] Speaker 05:
I mean, I assume there's some sense in which the preliminary stage is all part of the same investigation and you don't go back and start a new one and do another preliminary stage.

[00:17:12] Speaker 05:
So it would be odd to say that it was a new investigation when it came back.

[00:17:16] Speaker 06:
Yes, Your Honor.

[00:17:17] Speaker 05:
I think- So don't you have to say that the PVA investigation was pending before commerce?

[00:17:24] Speaker 05:
I'm not sure what the, I guess it would be the initial effect of January 2007 and February 2007 would be the extension.

[00:17:32] Speaker 06:
Yes, I think, Your Honor, the most reasonable reading is that it was pending.

[00:17:37] Speaker 06:
The reason I hesitate, the only reason I hesitate is because PVA, like Diamond Salt Blades, has a very unique procedural history, and commerce itself did not, in the notice of the preliminary determination and the final determination in PVA, was not clear about how it

[00:17:54] Speaker 06:
whether the investigation was characterized as pending or not.

[00:17:58] Speaker 06:
And I think really the court, the PVA investigation is not before this court.

[00:18:04] Speaker 05:
No, but it colors what is a reasonable interpretation of this language.

[00:18:11] Speaker 05:
I mean, if one truly cannot fairly say that PVA was either new when it came back or pending when it came out, then it seems to me there's a

[00:18:23] Speaker 05:
giant question about what this pending means, or maybe even there's an answer, which is as long as the investigation hadn't reached finality, then it was pending in front of commerce.

[00:18:37] Speaker 06:
And I think the latter position is the one that we take, Your Honor.

[00:18:40] Speaker 06:
All I was trying to explain... No, no, no.

[00:18:43] Speaker 05:
I meant that as a distinctly unhelpful characterization.

[00:18:46] Speaker 05:
Yes.

[00:18:48] Speaker 05:
Not final before commerce, but that the whole investigation

[00:18:53] Speaker 05:
had not reached finality, namely an order no longer appealed.

[00:18:58] Speaker 06:
I'm sorry.

[00:18:58] Speaker 06:
I misunderstood the characterization, Your Honor.

[00:19:03] Speaker 06:
Thank you for assisting me.

[00:19:04] Speaker 06:
I certainly had no intention of doing that, Your Honor.

[00:19:07] Speaker 06:
I apologize.

[00:19:09] Speaker 06:
No, what I meant to say is that our operative criteria is whether the Department of Commerce had reached a final determination.

[00:19:18] Speaker 05:
And what I was trying to explain was... I'm struggling to fit that into your pending line.

[00:19:23] Speaker 06:
I think the easiest way to reconcile the PVA investigation is to say that it was pending because there was no final negative determination, there was no final affirmative determination, there was not even a preliminary determination in PVA until well after the policy change was published.

[00:19:42] Speaker 05:
Why did you hesitate as I think you maybe even more than hesitated several times when I think

[00:19:49] Speaker 05:
I think I asked you whether that investigation was pending in January and February of 2007.

[00:19:55] Speaker 05:
Then you said no.

[00:19:56] Speaker 06:
Your Honor, my hesitation reflected the fact that I don't think the court needs to necessarily decide that.

[00:20:02] Speaker 06:
In my view, I understand that the court, I think, believes that the PVA investigation colors the interpretation of the pending before commerce language in a way that

[00:20:13] Speaker 06:
to a greater degree than we thought and that we discussed in our briefs.

[00:20:20] Speaker 06:
And so my hesitation was simply an attempt to explain that in our view, our position is that really either characterization would work and I hesitate to speak about another determination in which commerce, which is not before this court and in which commerce

[00:20:41] Speaker 06:
Uh, Congress's language can be interpreted in different ways.

[00:20:43] Speaker 04:
The, the, the reality is- I'm a little surprised that, that, that your, uh, comment that, you know, you hesitate to talk about the proceeding that's not before the court.

[00:20:55] Speaker 04:
It seems to me that the, the PVA issue is sort of the biggest weakness in your position.

[00:21:03] Speaker 04:
And you have to know that coming into this argument.

[00:21:06] Speaker 04:
Your honor, perhaps.

[00:21:09] Speaker 04:
All of the other arguments are all about what do the words mean?

[00:21:13] Speaker 04:
Are they ambiguous or not?

[00:21:15] Speaker 04:
How ambiguous are they?

[00:21:17] Speaker 04:
What could they possibly cover?

[00:21:19] Speaker 04:
And it's hard to say that the words have a sufficiently definitive meaning that compels an outcome that would support the appellants here.

[00:21:31] Speaker 04:
Because if there's ambiguity, then we defer to commerce's interpretation.

[00:21:36] Speaker 04:
But then enter stage left PVA.

[00:21:40] Speaker 04:
And it seems to me that's a big, big issue.

[00:21:43] Speaker 04:
And for you to say that, well, you hesitate to get into that.

[00:21:47] Speaker 04:
I'm a little surprised.

[00:21:49] Speaker 06:
Your honor, I did not mean to say that I hesitate to, to get into it.

[00:21:53] Speaker 06:
I think my comments, perhaps an artful.

[00:21:55] Speaker 06:
meant to reflect the fact that, in our view, PVA is not a big weakness because there's a very easy analytical way to reconcile it with the policy change and with what Commerce has done.

[00:22:07] Speaker 06:
And that is that Commerce's language and Commerce's discussion in the policy change, after it says, we're going to apply this policy change to proceedings pending before the Department, and then it discusses what it means by that.

[00:22:19] Speaker 06:
One of the things it talks about is proceedings in which Commerce has not yet issued a final determination.

[00:22:26] Speaker 06:
And PVA fits very comfortably with that characterization, within that characterization.

[00:22:32] Speaker 06:
To us, I think it is analytically very easy.

[00:22:36] Speaker 06:
We don't have a preliminary determination.

[00:22:38] Speaker 06:
We don't have a final determination in PVA until well after section 123.

[00:22:43] Speaker 06:
And in that way, the PVA investigation is markedly distinct from this case where

[00:22:50] Speaker 05:
commerce did issue a final decision.

[00:23:08] Speaker 05:
final determination, but it seems to me that you have to be able to say, unless you tell me it doesn't matter if there's inconsistency, you have to be able to say, and therefore the PVA investigation was pending in January of 2007, before the department.

[00:23:28] Speaker 06:
And Your Honor, we would take the position that therefore, because there was no final and no preliminary, the PVA investigation was pending before the department in January of 2007.

[00:23:36] Speaker 06:
That is the position that we take.

[00:23:37] Speaker 06:
In our view, the court need not necessarily reach that question to reconcile the PVA investigation because in some sense when the PVA investigation started doesn't matter.

[00:23:49] Speaker 06:
What matters is when the final determination was made.

[00:23:52] Speaker 06:
In other words, the most reasonable way to read commerce's language in the policy change is if there's a final determination that occurs after the policy change notice,

[00:24:04] Speaker 06:
then the policy change applies, but to the extent that the court feels that we do need to reconcile, to take a firm position on the PVA investigation, our position is that the PVA investigation was pending before commerce in 2007 because there was no final determination.

[00:24:24] Speaker 06:
I see that I don't have a lot of time.

[00:24:26] Speaker 06:
I would just like to mention that

[00:24:27] Speaker 06:
In addition to the PVA we have, and the language of the policy change, we have three other sources from which we know that the term pending before the department refers to investigations in which there is no final determination by the department, because it is the final determination by the Department of Commerce that's operative.

[00:24:46] Speaker 06:
We know that from Commerce's statements in other administrative proceedings involving saw blades, and in particular in the case advanced technology and material,

[00:24:57] Speaker 06:
Commerce actually provided an explanation and an articulation of its interpretation of the policy change language with respect to the Diamond Sawblades investigation.

[00:25:08] Speaker 06:
That was a case in which the trial court relied in reaching its own decision.

[00:25:13] Speaker 06:
The citation for that is Advanced Technology and Materials, 2011, Court of International Trade, Lexis 104.

[00:25:21] Speaker 06:
We also know that from the statute because the statute makes a final determination appealable and therefore a final determination by the Department of Commerce, a final affirmative determination, terris finality.

[00:25:43] Speaker 06:
We also know that from the precedent of this court, the mandamus litigation, which broadly speaking stands for the proposition that administrative determinations should become effective and become effective at the time they're issued, not upon the effectuation of later order.

[00:25:58] Speaker 06:
With that, Your Honor, we respectfully request that the court affirm the trial court's decision.

[00:26:11] Speaker 01:
Pickard, is that how you say it?

[00:26:13] Speaker 01:
That's how I say it, Your Honor.

[00:26:15] Speaker 01:
Good morning, Your Honors.

[00:26:16] Speaker 01:
Dan Pickard on behalf of the Diamond Salt Lake Coalition.

[00:26:19] Speaker 05:
Am I remembering right?

[00:26:20] Speaker 05:
You're not much interested in standing here and defending the PVA result?

[00:26:25] Speaker 01:
I am not particularly interested in defending the PVA results.

[00:26:31] Speaker 01:
I don't believe it's necessary to do so.

[00:26:33] Speaker 01:
I think there's three ways that the court could address PVA without

[00:26:39] Speaker 01:
in order to reconcile it in our favor.

[00:26:42] Speaker 01:
First off, it's distinctly possible that the department was incorrect in PBA.

[00:26:48] Speaker 01:
It's not a binding decision, obviously, on the department.

[00:26:52] Speaker 01:
And I'm mindful of the fact that clearly it bears on the reasonableness of the department's action.

[00:26:58] Speaker 01:
But it is entirely possible that the department got PBA wrong, and yet its interpretation of ongoing or pending in the diamond saw blade matter is still reasonable and should be upheld.

[00:27:10] Speaker 01:
I think it's also possible, you were talking, I'm sorry, your honor had referenced newly pending, or in the terms of the final modification, a future case.

[00:27:22] Speaker 01:
I think there's a reasonable interpretation where PBA could be a future case in a way that is distinct from diamond saw blades.

[00:27:31] Speaker 05:
The fundamental fact is there was a final determination- There was non-ministerial action to be taken on remand.

[00:27:38] Speaker 01:
Is that- Exactly.

[00:27:41] Speaker 01:
That's exactly right.

[00:27:41] Speaker 01:
Your honor.

[00:27:42] Speaker 01:
Um, in diamond cell blades, you had a final determination months before the final determination by the department of commerce published in the federal register months before the policy was changed.

[00:27:53] Speaker 01:
There were ministerial changes that were made later, but purely ministerial PVA was restarted again.

[00:28:00] Speaker 01:
Not as a term of the arts, uh, subsequent to the policy change and an investigation was required.

[00:28:09] Speaker 01:
Consequently.

[00:28:11] Speaker 01:
I think it could be permissively viewed as a future case consistent with the policy.

[00:28:17] Speaker 01:
I think it's probably most appropriate, and I would echo the arguments made by the government, probably best viewed or most appropriately viewed as pending in that no final determination had been made yet.

[00:28:30] Speaker 01:
And that's distinct from diamond saw blades.

[00:28:33] Speaker 01:
When PVA came back before the department, questionnaires were issued.

[00:28:38] Speaker 01:
The party submitted briefs, it went to a preliminary determination, it went to a final determination, and consequently could be viewed either as a pending or future case in a way that Diamonds All Blades clearly was not.

[00:28:50] Speaker 01:
All briefs had been submitted, determination had been made, the determination had been announced and had run in the federal register.

[00:28:58] Speaker 01:
And approximately seven months later, the policy change happened.

[00:29:04] Speaker 05:
You, I think, probably had something you wanted to say that was different from answering.

[00:29:10] Speaker 01:
Actually, what I wanted to say earlier was most of our arguments dovetail into the departments.

[00:29:16] Speaker 01:
And unlike many FLE interveners, I don't feel the need to be redundant.

[00:29:22] Speaker 01:
I would perhaps offer two points of clarification.

[00:29:24] Speaker 01:
Refreshing.

[00:29:26] Speaker 01:
Rare.

[00:29:27] Speaker 01:
And then have you answer any questions.

[00:29:32] Speaker 01:
I would say, one, in regard to a minor point, in regards to any arguments, in regard to post hoc rationalizations, it should not be surprising that the diamond saw blade decision did not discuss in more detail a final modification that had not yet happened.

[00:29:50] Speaker 01:
And it's somewhat disingenuous to argue that arguments now made in regard to this are post hoc.

[00:29:56] Speaker 01:
But I think most importantly, at the end of the day, as a factual matter,

[00:30:02] Speaker 01:
It's, there's no argument that the Department of Commerce had made and published its final determination months before there was a final modification.

[00:30:11] Speaker 01:
And I would suggest respectfully that to the extent that there's really any ambiguity in regard to the ongoing or pending, there's a long line of cases, Michael Storrs indicating that all deference, the department deserves deference in this regard.

[00:30:31] Speaker 01:
And that being said, happy to answer any additional questions.

[00:30:35] Speaker ?:
Thank you.

[00:30:36] Speaker 01:
Thank you, Your Honors.

[00:30:36] Speaker 02:
Thank you.

[00:30:45] Speaker 02:
Good morning, Mr. Pardo for EWA.

[00:30:49] Speaker 02:
Many of the arguments we've heard this morning from appellees have focused on the two points.

[00:30:54] Speaker 02:
Number one, that they believe that the operative term we should be discussing is pending before the department.

[00:31:01] Speaker 02:
And as we've noted in our brief, and I think is very clear in the final modification notice, that's incorrect.

[00:31:06] Speaker 02:
The department has used interchangeably three separate terms.

[00:31:10] Speaker 02:
They've used the term pending, they've used the term ongoing, and then in the timeline, in the very last sentence, they've stated that it will apply to all current and future cases.

[00:31:21] Speaker 02:
All of these terms have been applied interchangeably without any definition to aid us in what we're attempting to discern right now.

[00:31:30] Speaker 04:
So isn't that a quintessentially ambiguous situation?

[00:31:36] Speaker 02:
Well, what we do know, your honor, is by using the terms interchangeably, the department believes that they are, in fact, synonymous.

[00:31:45] Speaker 02:
So it is not appropriate to try and determine what the meaning of these are simply by focusing, as the government would like you to do, on the one term pending before the department.

[00:31:57] Speaker 02:
Now, the government's other argument

[00:32:00] Speaker 02:
is that if we look purely and squarely at pending before the department, it's very clear they believe that pending before the department means any case prior to the final determination.

[00:32:11] Speaker 02:
And we believe that there's absolutely no basis to make that finding.

[00:32:14] Speaker 02:
First and foremost, as this court noted,

[00:32:17] Speaker 02:
If that was, in fact, the department's intent, it begs the obvious question, why did the department not simply say that the effective date would be triggered by those cases by the final determination?

[00:32:28] Speaker 02:
That is a notice that is published in the Federal Register and would provide a date certain for all cases.

[00:32:35] Speaker 02:
And thus, there would be absolutely no ambiguity.

[00:32:38] Speaker 02:
We also believe that in this instance, because there is a question about what all of these various terms mean, that perhaps it's also more instructive

[00:32:47] Speaker 02:
to look at the opposite.

[00:32:48] Speaker 02:
If you look at these three terms, pending, ongoing, current, and future, what you can reasonably discern is that these, first off, these are not, these are absolute terms.

[00:33:00] Speaker 02:
They are not terms of degree.

[00:33:02] Speaker 02:
A case is either pending or is not pending.

[00:33:04] Speaker 02:
It is either ongoing or it is not ongoing.

[00:33:07] Speaker 02:
So the opposite of this would be a final case, a case that is final.

[00:33:13] Speaker 02:
And as we've noted, and as my colleague Mr. Grimson discussed,

[00:33:17] Speaker 02:
It is very clear from the department's own regulation, it defines the beginning and ending phases of the investigation segment of a proceeding.

[00:33:26] Speaker 02:
And it states that the investigation segment of a proceeding begins with the publication of the initiation notice.

[00:33:33] Speaker 02:
And it will then ultimately end with the publication of the anti-dumping order.

[00:33:39] Speaker 02:
There is no dispute among the parties that the anti-dumping order, in this case, was published

[00:33:46] Speaker 02:
well after the effective date.

[00:33:48] Speaker 02:
So the question remains obvious.

[00:33:52] Speaker 02:
When that order was published in what segment of the proceeding was it published?

[00:33:58] Speaker 03:
You know, we often get cases in which the interpretation of a vaguely written policy or regulation, even a statute has significant impact on how people

[00:34:16] Speaker 03:
acted, that is, there were actions in reliance on the way this rule was written and they interpreted it differently.

[00:34:26] Speaker 03:
There's no reliance in this case, is there, in the sense that you all didn't rely on the way they later wrote this rule.

[00:34:34] Speaker 03:
This is a pure post hoc negotiation for recovery of money.

[00:34:40] Speaker 03:
Do I have that right?

[00:34:42] Speaker 02:
Well, Your Honor, there is certainly no reliance in the sense that when my client, my colleague's client, were respondents in an anti-dumping investigation, they had no choice but to cooperate.

[00:34:56] Speaker 02:
Their actions were dictated by the fact that... Which had started long before this whole process started.

[00:35:02] Speaker 02:
Yes, but then subsequent to that, we were then required to participate in subsequent review proceedings where we felt that in accordance with the law,

[00:35:12] Speaker 02:
as should have been applied at the time to this case, we should not have been found to have been dumping in the first place, in which case none of this would have occurred.

[00:35:22] Speaker 02:
And I think that that's very significant, is that the government is stating that if there is ambiguity, that they should have deference.

[00:35:30] Speaker 02:
But deference is not owed to arbitrary action.

[00:35:33] Speaker 02:
And I think that there's a great deal of concern about the way that they've attempted to distinguish our case from PBA.

[00:35:39] Speaker 05:
This was, I think, picking up on Judge

[00:35:42] Speaker 05:
Plaker's point.

[00:35:44] Speaker 05:
Does this case involve import?

[00:35:49] Speaker 05:
that your clients made before this policy took effect, or after the policy took effect, or that's, I think, the kind of reliance that Judge Plager was asking about.

[00:36:06] Speaker 05:
That is, you thought, oh, the rule was this.

[00:36:09] Speaker 05:
We, therefore, can import at these prices without worrying about it.

[00:36:14] Speaker 05:
And then, suddenly, it turns out the rule isn't that.

[00:36:17] Speaker 02:
That doesn't seem to be what's going on.

[00:36:19] Speaker 02:
No, your honor.

[00:36:20] Speaker 02:
I don't believe, I don't believe this case fits squarely in that mold.

[00:36:24] Speaker 02:
Nonetheless, it does not.

[00:36:26] Speaker 02:
It does not.

[00:36:26] Speaker 02:
It does not.

[00:36:27] Speaker 02:
But again, I think you have to, you have to look at the relative positions of the parties.

[00:36:33] Speaker 02:
And if you are a respondent in an anti-dumping proceeding, be it an investigation or a review, it's not really your question or your position to determine what's happening.

[00:36:45] Speaker 02:
You are responding.

[00:36:47] Speaker 02:
to the allegations of dumping that have been leveled against you.

[00:36:50] Speaker 02:
And that's a very, very costly allegation to defend against.

[00:36:54] Speaker 02:
And obviously, if there is a finding of dumping, it becomes even more costly.

[00:36:57] Speaker 02:
As Mr. Grimson noted, we're not up here just speaking about hypotheticals for an academic purpose.

[00:37:04] Speaker 03:
There's millions of dollars involved.

[00:37:05] Speaker 03:
Does the application of the zeroing rule change you from

[00:37:10] Speaker 03:
dumping to non-dumping?

[00:37:12] Speaker 03:
Correct, Your Honor.

[00:37:13] Speaker 02:
Correct.

[00:37:15] Speaker 02:
So it's not just a... This is certainly not academic, Your Honor.

[00:37:19] Speaker 02:
We are of the belief that since this is the law that should have been applied, had it been applied, then the appropriate finding and the calculations would prove this to be true would be that EWA would be found to be de minimis and therefore excluded from the anti-dumping order in perpetuity.

[00:37:37] Speaker 02:
So this is clearly a significant issue.

[00:37:41] Speaker 02:
Okay.

[00:37:42] Speaker 05:
Thank you.

[00:37:42] Speaker 05:
I think we need to move on.

[00:37:43] Speaker 05:
We have an argument.