[00:00:00] Speaker 00:
1312, Gleisting and Moore versus United States.

[00:00:23] Speaker 04:
Are all those people here for that argument?

[00:00:35] Speaker 00:
Mr. Schwartz, please proceed.

[00:01:12] Speaker 01:
Good morning, Your Honors.

[00:01:14] Speaker 01:
I'm David Schwartz.

[00:01:15] Speaker 01:
I'm here today on behalf of Geospecialty Chemicals to ask this panel to determine that the CIT's decision in this matter was an error and not in accordance with law because the Congress's interpretation of its own regulation should be given substantial deference as long as it is reasonable and is not plainly erroneous or inconsistent with the regulation.

[00:01:34] Speaker 01:
Just a curious

[00:01:38] Speaker 02:
Question I have is, why isn't commerce here?

[00:01:41] Speaker 02:
Defending their interpretation of the regulation, do you happen to know?

[00:01:46] Speaker 02:
I understand why you're here, but why isn't commerce here also?

[00:01:49] Speaker 01:
Well, I cannot speak on behalf of the government, but I can venture an educated guess.

[00:01:55] Speaker 02:
Let's hear it.

[00:01:57] Speaker 01:
The government's on the record throughout this proceeding as protesting the CIT's ruling.

[00:02:01] Speaker 02:
As what?

[00:02:02] Speaker 01:
As protesting.

[00:02:03] Speaker 02:
We know that, but why aren't they here?

[00:02:06] Speaker 01:
I believe they're not here for two reasons.

[00:02:10] Speaker 01:
I believe that because Congress amended Section 302 in 2013 to explain how they'll handle timely file deadline extension requests and untimely file deadline extension requests, and because Section 302 applies to all of Part 351, including Section 213D1, they're content that 302 addresses their concerns about

[00:02:35] Speaker 01:
both timely and untimely, filed deadline extension requests.

[00:02:38] Speaker 01:
I also believe that Dante P. Cone that you all issued as an opinion in 2015 further acknowledges the department's wide discretion under Section 302 to determine how to handle

[00:02:53] Speaker 01:
Timely filed deadline extension requests and untimely filed deadline extension requests.

[00:02:57] Speaker 02:
And maybe this is taking you further afield from what you want to get to, but I'm still curious.

[00:03:02] Speaker 02:
That's a different regulation than the one in front of us.

[00:03:04] Speaker 02:
The one we have in front of us is 213D1, right?

[00:03:09] Speaker 02:
The word reasonable in the rule 213D1.

[00:03:16] Speaker 02:
And now you're telling me Commerce amended a different regulation, regulation 302.

[00:03:22] Speaker 01:
I'm saying they're not here now because of a later amendment to a different regulation that does apply to the entire Part 351, including 213D1, which is part of Part 351.

[00:03:38] Speaker 02:
But what if 213D1 says reasonable as it does, and 302 says something different?

[00:03:45] Speaker 02:
Extraordinary circumstance.

[00:03:46] Speaker 02:
Extraordinary circumstance.

[00:03:49] Speaker 02:
Wouldn't the more specific rule to the context that we have in front of us govern over the more general umbrella rule, 302?

[00:03:59] Speaker 01:
Well, if we transport ourselves back in time to when this was occurring, the 302 that was in place at the time did not address untimely filed deadline extension requests.

[00:04:16] Speaker 01:
302B and C only addressed

[00:04:19] Speaker 01:
timely filed deadline extension requests and for that they required good cause.

[00:04:27] Speaker 01:
We know from the re-promulgation of 213D1 in 1997 that commerce realized that there was a problem with 213D1 and how it was originally promulgated in 1989 and that they needed to do something to address untimely

[00:04:48] Speaker 01:
file deadline extension requests.

[00:04:50] Speaker 01:
And that's why, when they re-promulgated 213D1 in 1997, there was discussion about the importance of addressing what they should do.

[00:05:04] Speaker 01:
They further clarified the second sentence, which discusses extending the deadline for timely request, extending the deadline

[00:05:16] Speaker 01:
for a withdrawal request if it's reasonable to do so.

[00:05:20] Speaker 01:
That's when they explained in the repromulgation that they are in fact addressing untimely filed deadline extension requests, which at the time, both in 89 and even at the time of this case, 302 didn't address.

[00:05:38] Speaker 01:
Now in 2013, after this case, Commerce revised

[00:05:43] Speaker 01:
302 to address both timely file deadline extension requests and untimely deadline extension deadline extension requests.

[00:05:53] Speaker 00:
So this case is likely a single unitary case and not likely a case that has broad impact on lots of other cases in light of the new regs?

[00:06:05] Speaker 01:
That's correct.

[00:06:07] Speaker 02:
I would... What if hypothetically

[00:06:10] Speaker 02:
I think what you're suggesting is that the 302 rule on, that now says extraordinary circumstance, trumps the reasonable inquiry in 213D1.

[00:06:28] Speaker 01:
I would put it a different way, but thank you for the question.

[00:06:32] Speaker 01:
I would suggest that section 213D1 now, since... It still says reasonable, right?

[00:06:38] Speaker 01:
Right.

[00:06:38] Speaker 01:
I would say it's now redundant.

[00:06:40] Speaker 01:
And I would say there's no need for commerce to provide the constant clarifications, which they still do in the opportunity to request review notices, review initiation notices on the commerce website.

[00:06:49] Speaker 02:
Well, I guess what I'm wondering is, hypothetically, if I were to understand the word reasonable as just a different concept, separate from the concept of extraordinary circumstance, then it seems like there's a conflict.

[00:07:07] Speaker 02:
where there's a general rule demanding one concept be applied, extraordinary circumstance, and then a more specific rule for untimely withdrawal requests.

[00:07:22] Speaker 02:
And so therefore, if commerce truly intended the 302 rule to apply to any and every circumstance where there's an untimely request, I don't know if it would trump the more specific rule for a specific type of untimely request, the untimely withdrawal request.

[00:07:47] Speaker 01:
Go ahead.

[00:07:47] Speaker 01:
May I respond?

[00:07:49] Speaker 01:
Your Honor, the language, whether it's

[00:07:52] Speaker 01:
reasonable to do so, the second line, 213D1, was explained in the repromulgation in 1997.

[00:08:01] Speaker 01:
Now, it may be inelegant, that word, reasonable to do so, reasonable, but in that repromulgation language, in that Federal Register notice, Commerce says that they're addressing untimely filed deadline extension requests, and they're saying that they're going to apply their wide discretion

[00:08:23] Speaker 01:
in determining whether or not they're going to grant untimely file deadline extension requests.

[00:08:28] Speaker 00:
Mr. Schwartz, can I move you to this case?

[00:08:30] Speaker 00:
Because I mean, most of your discussion seems to be about stuff that happened after this case that really doesn't bear any relevance on the interpretation of the reg and the time at issue.

[00:08:40] Speaker 00:
Do you mind if I move you directly to this?

[00:08:42] Speaker 01:
Yes, I'd be happy to address how things were at that time.

[00:08:45] Speaker 00:
So my problem with your case is that I don't think

[00:08:52] Speaker 00:
that the word reasonable and the word extraordinary circumstances overlap in an event diagram.

[00:08:58] Speaker 00:
Do you know what an event diagram is?

[00:09:00] Speaker 00:
I'm not trying to be tricky.

[00:09:01] Speaker 00:
No.

[00:09:02] Speaker 00:
I think what is reasonable is a broad range of things.

[00:09:08] Speaker 00:
And I think extraordinary circumstances is on the very tail end of a bell curve, really probably beyond what is just reasonable.

[00:09:17] Speaker 00:
And so I guess you started by saying, and I think you're right in your articulation of the law,

[00:09:22] Speaker 00:
our deference is accorded when, among other things, the interpretation is not inconsistent with the language of the reg itself.

[00:09:29] Speaker 00:
My problem for you is I think it is.

[00:09:31] Speaker 00:
I don't think extraordinary circumstances is consistent with the word reasonable.

[00:09:35] Speaker 00:
So why don't you just take that head on and tell me why that might be wrong.

[00:09:40] Speaker 01:
The department in 2011, when they were clarifying the 1997 re-promodation of 213D1, determined that

[00:09:51] Speaker 01:
there was an issue with untimely filed deadline extension requests.

[00:09:55] Speaker 01:
And at that time, in 2011, at the time this case was taking place, they determined that they needed to address how to rule on, as a temporal matter, untimely filed deadline extension requests.

[00:10:14] Speaker 01:
So at that time, in 2011, and subsequently, but in 2011, they explained

[00:10:21] Speaker 01:
that they were going to interpret, they were going to clarify, reasonable to do so as exceptional circumstances.

[00:10:30] Speaker 00:
OK, but you have said nothing that even comes close to answering my question yet.

[00:10:35] Speaker 00:
Because what you've just told me is Congress decided to do it.

[00:10:39] Speaker 00:
My question was, are they allowed to do it, given that, explain to me why they're not inconsistent.

[00:10:47] Speaker 00:
That's what you need to do, because

[00:10:49] Speaker 00:
Once it's reasonable, I understand that Congress came along in 2011 and decided to change its view.

[00:10:58] Speaker 00:
But that changed view that has to be achieved through subsequent regulation, which it ultimately did, they can't rewrite an original regulation.

[00:11:08] Speaker 00:
So my problem is this feels like a rewriting of the original regulation and feels like it's outside of our deference because it's flat out inconsistent.

[00:11:16] Speaker 00:
So that's what I really need you, not why they did it or how they did it, but how is it not inconsistent?

[00:11:24] Speaker 01:
Well, I don't believe we're doing a straight definition of is it reasonable and is reasonable equal to extraordinary circumstance.

[00:11:36] Speaker 01:
I think what we're talking about is a temporal standard where they're saying the second line applies to untimely file deadline extension requests.

[00:11:44] Speaker 01:
And they're explaining, providing more clarification, more certainty on how they're going to determine when it is reasonable to do so.

[00:11:52] Speaker 04:
May I participate in this discussion?

[00:11:55] Speaker 04:
Of course, of course.

[00:11:57] Speaker 04:
Here's my problem, and I want to be sure we're all on the same.

[00:12:01] Speaker 04:
I get confused easily, and I'm not clear where we are on this.

[00:12:07] Speaker 04:
My understanding is that the language of the secretary

[00:12:13] Speaker 04:
can do this if it's reasonable.

[00:12:18] Speaker 04:
I want to come back to that.

[00:12:20] Speaker 04:
There's a peculiar difference between the earlier part.

[00:12:23] Speaker 04:
Anyway, I'll come back to that.

[00:12:25] Speaker 04:
My understanding is that the Secretary may extend the time limit if the Secretary decides that it is reasonable to do so.

[00:12:34] Speaker 04:
is language that appears in a formal regulation adopted by the department consistent with and in accordance with notice and comment rulemaking on the Administrative Procedure Act.

[00:12:49] Speaker 04:
Is that a fair statement?

[00:12:50] Speaker 01:
Both in 1989 and again in 1997, yes.

[00:12:54] Speaker 04:
Good.

[00:12:56] Speaker 04:
My further understanding is that this language about extraordinary circumstance

[00:13:04] Speaker 04:
that appeared in 2011 was not a regulation.

[00:13:11] Speaker 04:
It was a guidance document, a letter to his mother, a document that purported to provide an interpretation of what a reasonable secretary would do.

[00:13:30] Speaker 04:
Is that fair?

[00:13:31] Speaker 01:
That's fair.

[00:13:32] Speaker 01:
It was a clarification.

[00:13:34] Speaker 04:
So Judge Moore's question is really the nub of the problem.

[00:13:44] Speaker 04:
What would a reasonable secretary think was a reasonable reason for extending the deadline?

[00:13:56] Speaker 04:
And as I read the record and as I read the regulations, that would require the secretary to take into account a variety of facts and circumstances, wouldn't it, ordinarily?

[00:14:10] Speaker 04:
Wasn't that the understanding?

[00:14:13] Speaker 04:
All of a sudden, all of a sudden the secretary says, I'm not going to do that anymore.

[00:14:20] Speaker 04:
I'm now going to only look at one thing, extraordinary circumstances.

[00:14:25] Speaker 04:
And the answer is,

[00:14:26] Speaker 04:
He can't do that under our or under Chevron or under anything unless he does it by a formal notice and comment rulemaking.

[00:14:39] Speaker 04:
That's my understanding of the law.

[00:14:42] Speaker 04:
Explain to me why I misunderstand the law.

[00:14:49] Speaker 01:
I believe that 213D1, the second sentence,

[00:14:54] Speaker 01:
was drafted in such a way that it was purposely vague.

[00:14:59] Speaker 01:
It talked about the extension of deadlines requests, withdrawal deadline requests.

[00:15:06] Speaker 01:
It didn't talk about whether it applied to timely deadline extension requests or untimely deadline extension requests.

[00:15:13] Speaker 04:
Yeah.

[00:15:14] Speaker 04:
I want to come back to that point, because that's unclear also.

[00:15:17] Speaker 04:
But go ahead.

[00:15:19] Speaker 01:
But at that time of the clarification,

[00:15:23] Speaker 01:
302B and C were clearly operational as to how deadline extension requests that are timely filed should be handled.

[00:15:35] Speaker 01:
And that was with good cause.

[00:15:37] Speaker 04:
There were abuses.

[00:15:38] Speaker 04:
What is a timely request?

[00:15:40] Speaker 04:
Is a timely request one that's made prior to the 90-day expiration period?

[00:15:45] Speaker 04:
Correct.

[00:15:47] Speaker 04:
And you're saying that if the request is made after the 90-day period, there's a different rule.

[00:15:54] Speaker 04:
Yes.

[00:15:55] Speaker 04:
Where do you get that from?

[00:15:56] Speaker 01:
From the clarification.

[00:15:59] Speaker 04:
The 2011.

[00:16:00] Speaker 04:
There's two temporal standards.

[00:16:02] Speaker 04:
The 2011 document.

[00:16:04] Speaker 01:
Correct.

[00:16:05] Speaker 01:
Federal register notice, right?

[00:16:07] Speaker 01:
Yes.

[00:16:08] Speaker 04:
Yeah.

[00:16:08] Speaker 04:
But that was never adopted as a regulation, was it?

[00:16:12] Speaker 01:
Well, it was adopted, re-promulgated in 1997.

[00:16:15] Speaker 04:
It was not a regulatory change.

[00:16:24] Speaker 04:
under the APA.

[00:16:26] Speaker 04:
Am I mistaken about that?

[00:16:28] Speaker 01:
The clarification in 2011 was not a part of a notice.

[00:16:32] Speaker 04:
Rulemaking.

[00:16:33] Speaker 01:
Right.

[00:16:33] Speaker 04:
Yeah.

[00:16:34] Speaker 04:
Okay.

[00:16:35] Speaker 04:
So go ahead.

[00:16:35] Speaker 04:
Somewhere in that, they make a distinction between pre and post.

[00:16:41] Speaker 04:
There's something very peculiar about this whole sequence.

[00:16:44] Speaker 04:
Let me take you back for a moment

[00:16:46] Speaker 04:
to the 1989 regulation, which was the adopted regulation.

[00:16:53] Speaker 04:
Here's the phrase, the secretary may extend the time limit if it is reasonable to do so.

[00:17:03] Speaker 04:
Right?

[00:17:04] Speaker 04:
Correct.

[00:17:04] Speaker 04:
However, that got changed to read in 1989.

[00:17:12] Speaker 04:
The secretary may extend the time limit if the secretary decides that it is reasonable to do so.

[00:17:22] Speaker 04:
Does that difference?

[00:17:23] Speaker 04:
Neither of you seem to make any issue about it.

[00:17:26] Speaker 04:
Does that make any difference?

[00:17:27] Speaker 04:
I take it you think not.

[00:17:29] Speaker 01:
Could you repeat that for me?

[00:17:31] Speaker 04:
You want me to read it again?

[00:17:32] Speaker 04:
Yeah.

[00:17:32] Speaker 04:
That's interesting.

[00:17:33] Speaker 04:
If you look carefully at the history of the regulation.

[00:17:36] Speaker 01:
So in 1989,

[00:17:37] Speaker 04:
The early regulation said the secretary may extend the time limit if it is reasonable to do so.

[00:17:44] Speaker 04:
If it is.

[00:17:45] Speaker 04:
If it is reasonable.

[00:17:47] Speaker 04:
This later iteration said the secretary may extend the time limit if the secretary decides that it is reasonable to do so.

[00:17:57] Speaker 04:
I assume those say the same thing.

[00:18:02] Speaker 01:
If I may offer my take on it.

[00:18:05] Speaker 01:
I think that in 1997, I believe that the secretary, Commerce, was addressing what they viewed to be, in fact it says so in the repromodation language, addressed abuses that were occurring from 1989 up until 1997.

[00:18:21] Speaker 01:
So as they explain in the Federal Register notice in 1997, as part of the repromodation language, it was important for the secretary to exercise

[00:18:35] Speaker 01:
wide discretion.

[00:18:36] Speaker 01:
So I think you may have something there that they were emphasizing, and they say so in the Federal Register Notice, repromogating the 97 reissuance, that it is important in order to curb abuses for the secretary to exercise his or her wide discretion in determining whether or not an untimely filed withdrawal request

[00:19:04] Speaker 01:
should be granted.

[00:19:06] Speaker 01:
And what I find very interesting also in that 97 re-promulgation language, and this is a sentence that was left out of the CIT's first opinion, and I think it may have been done so for a reason, the language that they quote liberally from that 97 re-promulgation language, that Federal Register notes, but they leave out the sentence.

[00:19:27] Speaker 01:
To discourage this behavior, the Department must have the ability to deny withdrawals of requests for review

[00:19:33] Speaker 01:
even in situations where no party objects.

[00:19:37] Speaker 01:
So I think you're on to something.

[00:19:39] Speaker 01:
Before it was it, which suggests maybe it was somebody other than the Secretary or in addition to the Secretary, and here we're talking about the Secretary.

[00:19:47] Speaker 00:
Okay, Mr. Schwartz, you've used all your time, all your rebuttal time, and you're three and a half minutes over.

[00:19:52] Speaker 00:
So we will extend a small amount of rebuttal time, but we need to move on and hear from Mr. Whistle.

[00:19:59] Speaker 01:
Thank you, Your Honors.

[00:20:09] Speaker 03:
May it please the court.

[00:20:10] Speaker 03:
I'm Ronald Whistler with Kutak Rock, LLP.

[00:20:14] Speaker 03:
And I'm here on behalf of Gleising and Moore.

[00:20:21] Speaker 03:
My position is that the district court's decision should be affirmed.

[00:20:27] Speaker 03:
And it can be affirmed on the basis that the judge provided, which was mainly focusing on the legislative history of the case.

[00:20:38] Speaker 03:
But I also believe it could be affirmed on what I argued, and which was the subject of this argument.

[00:20:45] Speaker 03:
It was just on the plain language of the regulation and what reasonable means.

[00:20:49] Speaker 03:
And that's what I argue before the court.

[00:20:51] Speaker 04:
Is the word reasonable ambiguous?

[00:20:54] Speaker 03:
To me, it's not.

[00:20:56] Speaker 03:
I mean, it's the principle of being reasonable, which

[00:21:01] Speaker 03:
Which in itself does have some leeway, but I mean, it's the principle of being reasonable.

[00:21:06] Speaker 04:
But the fact that it has leeway doesn't make it an ambiguous term.

[00:21:10] Speaker 04:
No, not to me, no.

[00:21:11] Speaker 02:
But if an agency were to say, OK, we've promulgated a rule where we're going to make a reasonableness inquiry into something,

[00:21:22] Speaker 02:
And now I'm telling you and the public that factors A, B, and C are going to be considered in this reasonableness inquiry.

[00:21:34] Speaker 02:
And they published that in the Federal Register.

[00:21:37] Speaker 02:
Would that be entitled to our deference?

[00:21:41] Speaker 03:
I don't think so, because the language in the regulation is still there.

[00:21:46] Speaker 03:
And just in practice, what happened is a total...

[00:21:52] Speaker 02:
Why wouldn't it be, I guess, is what I'm wondering.

[00:21:56] Speaker 02:
I mean, we have a regulation.

[00:21:59] Speaker 02:
We have a regulation.

[00:22:00] Speaker 02:
It's reasonable.

[00:22:03] Speaker 02:
But maybe it's not so clear what that principle actually means in application.

[00:22:10] Speaker 02:
So then the agency comes forward.

[00:22:12] Speaker 02:
You know, this is hypothetically, there's nothing in the Federal Register when the regulation is promulgated suggesting how the agency is going to apply the reasonableness inquiry.

[00:22:23] Speaker 02:
And a year later, they published something in the Federal Register in terms of saying, we want to try to standardize the department's application of this rule.

[00:22:33] Speaker 02:
And we've concluded the following three factors, A, B, and C, make a lot of sense in trying to understand whether

[00:22:42] Speaker 02:
a certain action is reasonable.

[00:22:46] Speaker 03:
Would that be allowed to get our deference?

[00:22:50] Speaker 03:
If it was applied properly in practice, perhaps.

[00:22:53] Speaker 03:
I don't know what that means.

[00:22:56] Speaker 03:
Wouldn't it be?

[00:22:58] Speaker 03:
Wouldn't it be allowed our deference?

[00:23:00] Speaker 03:
When it's not reasonable.

[00:23:03] Speaker 02:
Okay, so if factors A, B, and C are not reasonable.

[00:23:08] Speaker 02:
as factors to consider a reasonableness inquiry, then that would be something that wouldn't get our deference.

[00:23:13] Speaker 02:
Because it would be something that would just end up.

[00:23:16] Speaker 03:
Because if there are other reasons in, yeah, they said they gave their one or two or maybe perhaps three things that they want to look at.

[00:23:27] Speaker 03:
But there still remains other things to be looked at to determine whether their determination is reasonable.

[00:23:34] Speaker 03:
They're trying to define reasonable by saying we're only going to look at this.

[00:23:37] Speaker 03:
as long as we look at these three things, it's reasonable when there's supposed to be a fact-finding or decision-making entity, and they're supposed to make decisions based on substantial evidence.

[00:23:54] Speaker 03:
So they're supposed to make a decision what's in front of them, not just

[00:23:58] Speaker 03:
these three little rules that they decided in a federal register.

[00:24:01] Speaker 00:
Isn't your answer really just that if what they say about how they're going to interpret reasonableness is reasonable, then it gets deference.

[00:24:09] Speaker 00:
If it doesn't, it doesn't.

[00:24:11] Speaker 03:
Yes.

[00:24:12] Speaker 03:
It's something that can be looked at.

[00:24:13] Speaker 03:
You can decide.

[00:24:15] Speaker 03:
A review in court can say, is this reasonable?

[00:24:18] Speaker 03:
Is this unreasonable?

[00:24:20] Speaker 03:
It's the whole administrative laws, basically.

[00:24:26] Speaker 02:
I got confused by your answer because I couldn't quite understand your saying for trying to interpret what is reasonable mean and how an agency is going to hopefully consistently apply it.

[00:24:40] Speaker 02:
It can't interpret reasonable to be constrained to a certain number of factors.

[00:24:49] Speaker 02:
Here's factors one, two, three, four.

[00:24:52] Speaker 02:
Here's what we're going to consider.

[00:24:55] Speaker 03:
But what happens if there's factors 6, 7, 8, and 9?

[00:25:00] Speaker 03:
You're not going to consider them at all.

[00:25:02] Speaker 03:
You have to consider all factors that are in the record, and that's before you.

[00:25:06] Speaker 03:
You have to make a reasoned decision.

[00:25:08] Speaker 03:
A reasoned decision that's based on 10 factors in front of you cannot be based by saying, oh, we're only going to look at reason 1, 2, 3.

[00:25:16] Speaker 03:
That is unreasonable.

[00:25:19] Speaker 03:
You have to look at all the factors to make a reasonable decision.

[00:25:25] Speaker 02:
So then an agency under your scenario could never provide an interpretation of what reasonable means, beyond just saying, we're going to consider everything and anything.

[00:25:40] Speaker 03:
Which is that they're supposed to do that.

[00:25:44] Speaker 04:
Could they list a series of factors to be considered?

[00:25:47] Speaker 03:
They could say things are more important, perhaps, or generally we are going to look at these, perhaps,

[00:25:54] Speaker 03:
more than something else.

[00:25:55] Speaker 03:
But you still have to look at everything and make a reasoned decision.

[00:26:00] Speaker 03:
It's discretion.

[00:26:01] Speaker 03:
You have to exercise some discretion.

[00:26:02] Speaker 03:
I know the agency does not like making decisions a lot of times because they can be challenging.

[00:26:09] Speaker 04:
Is it your argument that they can't ever define reasonableness other than regulation?

[00:26:18] Speaker 04:
Or is it your argument that they could try to define reasonableness if they

[00:26:24] Speaker 04:
defined it broadly enough, but they can't exclude factors without a regulation.

[00:26:31] Speaker 04:
Is that what you're trying to tell us?

[00:26:35] Speaker 04:
Or is that too simplistic?

[00:26:38] Speaker 03:
I don't know.

[00:26:40] Speaker 03:
When the regulation says that the secretary is to act in a way when it's reasonable to do so, it is expected that the secretary will act reasonably, which would be

[00:26:51] Speaker 03:
to consider all the evidence in front of him.

[00:26:57] Speaker 03:
To me, that's reasonable.

[00:27:00] Speaker 03:
And it's unreasonable if you.

[00:27:02] Speaker 00:
And let me try to help you.

[00:27:05] Speaker 00:
If the secretary articulates four factors, and if it turns out there was another important factor, and every reasonable person would have thought a reasonable secretary would have considered it in the assessment of reasonableness, then it's unreasonable to have excluded that factor.

[00:27:19] Speaker 00:
But if the factor being excluded is not really something that would be relevant to a reasonableness assessment, the secretary is perfectly within his province to exclude that factor from consideration.

[00:27:32] Speaker 03:
Well, that's exercising and reasonableness.

[00:27:36] Speaker 03:
That's making a decision based on everything that's in front of you.

[00:27:39] Speaker 03:
And some things you can eliminate.

[00:27:40] Speaker 03:
Some things you can highlight.

[00:27:42] Speaker 03:
Some things are not relevant.

[00:27:43] Speaker 00:
But they could do that in an individual case.

[00:27:45] Speaker 00:
They could also do that in a federal register to apply more broadly.

[00:27:48] Speaker 00:
But it's only going to apply more broadly if it is, in fact, a reflection of everything that was reasonable to be considered.

[00:27:57] Speaker 03:
More or less.

[00:27:58] Speaker 03:
And I also want to say another thing.

[00:27:59] Speaker 03:
Can I change this a little bit?

[00:28:06] Speaker 02:
Today, somebody wants to withdraw their request for review.

[00:28:17] Speaker 02:
But it's untimely.

[00:28:18] Speaker 02:
They've blown through the 90-day time period.

[00:28:22] Speaker 02:
Which rule applies?

[00:28:24] Speaker 02:
213D1 or 302?

[00:28:27] Speaker 02:
I think the D.

[00:28:29] Speaker 02:
213D1?

[00:28:32] Speaker 02:
Yes.

[00:28:34] Speaker 02:
Commerce, apparently, has the position that's 302 that applies?

[00:28:38] Speaker 03:
Apparently.

[00:28:39] Speaker 00:
But that's not something before us, right?

[00:28:42] Speaker 03:
No, I think, well, it's not before us because that rule was promulgated after this case was over.

[00:28:47] Speaker 00:
Not something we get to figure out in this case.

[00:28:49] Speaker 03:
Right, but I would like to say, you know, in my view... You'd be better off not saying.

[00:28:56] Speaker 03:
Okay.

[00:29:00] Speaker 00:
All right.

[00:29:00] Speaker 00:
I think we should, if you don't mind, let Mr. Schwartz have the rest of it.

[00:29:04] Speaker 03:
Well, will I be able to?

[00:29:05] Speaker 03:
I just want to make a point.

[00:29:06] Speaker 00:
Oh, I'm sorry.

[00:29:07] Speaker 00:
I thought you were done.

[00:29:07] Speaker 00:
No, I don't mean to cut you off.

[00:29:08] Speaker 00:
Go ahead.

[00:29:09] Speaker 03:
There's one point.

[00:29:10] Speaker 03:
In the event that the court agrees with the appellate, there is an issue that still must be considered.

[00:29:19] Speaker 03:
And that wasn't addressed by the court because the court said we don't have to get to it at this point.

[00:29:24] Speaker 03:
But that is the rate that was applied to Gleising and Moore

[00:29:29] Speaker 03:
was 453% and... It was like an adverse tax.

[00:29:35] Speaker 03:
Yeah, very adverse tax.

[00:29:37] Speaker 03:
Well, they didn't participate.

[00:29:38] Speaker 03:
They decided they wanted to withdraw and they didn't participate.

[00:29:40] Speaker 03:
So we're not, you know, they should be get adverse tax available, but it's the rate we're talking about.

[00:29:46] Speaker 04:
And there's a rule in, you know, under... You want to save the right to challenge that rate.

[00:29:54] Speaker 03:
Challenge that rate because it is under

[00:29:58] Speaker 01:
court review right now and as it stands now that rate is not no doubt that that shouldn't be I think we got it okay that's the only thank you okay thank you mr. Whistler mr. Schwartz will give you two minutes of rebuttal time your honors I wanted to address the second argument that we had in our brief before you all and that is the CIT directed a result through narrow constraints to commerce

[00:30:27] Speaker 01:
Commerce rightly protested throughout this proceeding that the CIT severely constrained its exercise of its discretion through its remand instructions.

[00:30:36] Speaker 01:
The CIT directed Commerce that compelling circumstances would call into question any decision on remand, reinstating the previous challenge decision, and that it must decide anew based on any new and compelling circumstance not previously identified by Commerce, that despite the circumstances the court has identified, could justify disallowing Belgium's withdrawal.

[00:30:53] Speaker 01:
That language dictated only one result.

[00:30:56] Speaker 01:
As the CIT explained, Commerce must reach a new decision that does not apply the interpretation of 213D1.

[00:31:04] Speaker 04:
Didn't Commerce try to explain all that and soften it up a bit, I thought?

[00:31:09] Speaker 04:
No?

[00:31:11] Speaker 04:
I mean, didn't the CIT, I'm sorry, didn't the CIT explain all that and soften it a bit?

[00:31:17] Speaker 01:
With the second opinion?

[00:31:18] Speaker 01:
Yeah.

[00:31:20] Speaker 01:
They did try to walk back the initial language.

[00:31:27] Speaker 04:
You were quoting the initial language, weren't you?

[00:31:30] Speaker 01:
No, this is the second opinion.

[00:31:35] Speaker 01:
Second opinion.

[00:31:36] Speaker 01:
Second opinion.

[00:31:37] Speaker 01:
Oh, OK.

[00:31:37] Speaker 01:
Go ahead.

[00:31:37] Speaker 01:
This is the second opinion.

[00:31:39] Speaker 01:
And so commerce really had no choice but to do exactly what the CIT directed them to do.

[00:31:48] Speaker 01:
Instead of instructing commerce to explain why the ruling was reasonable and why it's not plainly erroneous,

[00:31:55] Speaker 01:
and deferring to commerce and how to interpret this regulation, the CIT instead through very constraining language dictated what the result should be.

[00:32:06] Speaker 00:
Okay, thank you Mr. Schwartz.

[00:32:08] Speaker 00:
I thank both counsel.

[00:32:09] Speaker 00:
The case is taken under submission.