[00:00:00] Speaker 06: We will hear argument first in number 21-2097, Morrison against United States. [00:00:10] Speaker 00: Ms. [00:00:10] Speaker 00: Mendoza. [00:00:12] Speaker 00: Good morning, Your Honor. [00:00:13] Speaker 00: Good morning to the panel. [00:00:16] Speaker 00: To please the court, my name is Julie Mendoza, and I'm with the law firm of Morris, Manning, and Martin appearing on behalf of Morrison. [00:00:25] Speaker 00: I'd just like to start, Your Honor, with the point [00:00:29] Speaker 00: The issue here before the court today is the proper interpretation of the anti-dumping law. [00:00:35] Speaker 00: It's the proper interpretation of the words United States import duties in the anti-dumping statute [00:00:42] Speaker 00: And the question here is whether Section 232 duties fall within the scope or outside the scope of a United States custom duty, and therefore should or should not be deducted from US price. [00:00:55] Speaker 06: United States import duty. [00:00:57] Speaker 00: Yes. [00:00:57] Speaker 00: I'm sorry, Your Honor. [00:00:59] Speaker 00: Yes. [00:00:59] Speaker 00: United States import duty. [00:01:02] Speaker 00: Commerce itself, after notice in common in an earlier case, stainless steel wire rod, [00:01:08] Speaker 00: developed a framework for analyzing this issue in that case in the context of Section 201. [00:01:15] Speaker 00: And what Commerce held fundamentally in that case after notice and comment rulemaking, which was sustained by this court, what Commerce said was there is a clear distinction between a normal customs duty, which is collected in order to raise general revenue for the United States, [00:01:35] Speaker 00: and which is imposed on a permanent basis, or at least until Congress decides to change it. [00:01:43] Speaker 00: In contrast to this, what the Commerce Department said was a special duty, was a remedial duty, a duty that was intended to remedy injury to the industry. [00:01:57] Speaker 00: and which was temporary. [00:01:59] Speaker 00: In other words, it was temporary because it was intended to last as long as the injury and as long as the remedy was needed. [00:02:06] Speaker 00: And so that clear distinction permeated the entire stainless steel wire rod case. [00:02:12] Speaker 00: In every single analysis they did of every factor, remedial, temporary, whether it constituted a double imposition of a remedy, they always considered [00:02:24] Speaker 00: that conflict, that clear dividing line between a normal customs duty and a special duty. [00:02:34] Speaker 00: Now, how commerce erred here? [00:02:36] Speaker 00: Commerce erred here not because it failed to follow the framework. [00:02:40] Speaker 00: It did. [00:02:40] Speaker 00: It said it was. [00:02:42] Speaker 00: And in fact, it did give lip service to the framework itself. [00:02:47] Speaker 00: But what it didn't do was actually follow that analysis. [00:02:52] Speaker 00: And what I mean by that is, [00:02:54] Speaker 00: They didn't employ the same analysis and approach to the question of these duties. [00:03:02] Speaker 00: And they didn't address specifically how their two duties were like normal customs duties, which brings me to a fundamental point. [00:03:10] Speaker 06: And can you just state again what you think the definition of normal in your use of the word is? [00:03:18] Speaker 00: Normal in these my word is commerce's word, which was not a statutory word right now. [00:03:24] Speaker 00: Okay, it's an interpretation by commerce of the legislative history of the anti dumping act as including [00:03:35] Speaker 00: a differentiation or an understanding that certain duties were normal customs duties, while other duties, in that case specifically anti-dumping duties were. [00:03:43] Speaker 06: And what makes a duty normal, including one that might have been around for 35 years? [00:03:49] Speaker 00: At least under Congress's determination relying on the legislative history, they said that those were duties that had been adopted by Congress that stayed in place permanently and that were intended to be remedial. [00:04:03] Speaker 00: I'm sorry, the opposite. [00:04:04] Speaker 00: I'm very sorry, Your Honor. [00:04:06] Speaker 00: Normal duties were put there by Congress. [00:04:09] Speaker 00: They remained there until Congress changed them. [00:04:12] Speaker 00: And their purpose was solely to raise general revenue for the United States. [00:04:19] Speaker 00: That was the definition that Congress adopted. [00:04:21] Speaker 00: Which of those are subtracted out, the normal duties or the special duties? [00:04:25] Speaker 00: What Commerce said in the stainless steel wire rod decision was that Commerce should deduct out normal duties. [00:04:35] Speaker 00: In other words, the duties that Commerce has always deducted out are normal duties. [00:04:39] Speaker 00: They're the statutory HTS duties. [00:04:43] Speaker 00: What they said was that because Congress had recognized the distinction that not all duties were to be considered normal customs duties, [00:04:52] Speaker 00: Congress recognized that certain duties were special duties. [00:04:55] Speaker 00: In fact, in the legislative history, Congress used that term. [00:05:02] Speaker 00: And so Commerce, in interpreting it, said, we have to employ the same analysis here in deciding between what a Section 232 duty is. [00:05:13] Speaker 00: In order to analyze it, we have to use that same framework. [00:05:16] Speaker 05: What is the role of the president in this circumstance in identifying what kind of duty we're talking about? [00:05:23] Speaker 05: I mean, if you look at the proclamation 9705, it's characterized this 25% ad valorem was an additional rate of duty. [00:05:34] Speaker 00: How does that factor into your analysis? [00:05:37] Speaker 00: I guess what I was trying to emphasize at the beginning is that, [00:05:42] Speaker 00: The president's authority under Section 232 to impose any duties he feels are necessary is totally separate from the issue here of how commerce should decide whether to deduct those duties from US price. [00:05:59] Speaker 00: I think what the government and Wheatland attempt to do is to use the president's reference to what it actually says, which is ordinary duties referenced [00:06:12] Speaker 00: as opposed to ordinary duties. [00:06:15] Speaker 00: If you go back and you look at the annex of the Proclamation 9705, and if you look at what is actually said there, the only thing that's said there are two things. [00:06:25] Speaker 00: One, ordinary customs duty reference is to distinguish it from special duties, like GSP duties. [00:06:34] Speaker 00: And secondly, it says you shall collect it in addition to any other [00:06:38] Speaker 00: duty, right, dumping, countervailing duty, or anything else. [00:06:42] Speaker 00: So what the president has decided is that these duties, these Section 232 duties, must be collected in addition to any other duties that are in effect. [00:06:52] Speaker 05: So aren't we just looking at Proclamation 9705? [00:06:55] Speaker 05: We're not looking at every Section 232 duties. [00:06:59] Speaker 05: I mean, Section 232 leaves it up to the president to decide what the remedy will be. [00:07:05] Speaker 05: Absolutely. [00:07:06] Speaker 05: So I don't see where we're looking at every Section 232 duty. [00:07:10] Speaker 00: No, no. [00:07:11] Speaker 00: I don't think we are looking at every Section 232 duty. [00:07:14] Speaker 00: I'm sorry. [00:07:15] Speaker 00: I apologize. [00:07:17] Speaker 00: I apologize. [00:07:18] Speaker 00: Section 232 duties. [00:07:19] Speaker 00: No, I was referring actually to the annex to 9705. [00:07:25] Speaker 03: So could you also answer Judge Stoll's question regarding Appendix 48? [00:07:29] Speaker 03: She was looking at a different portion, I believe. [00:07:31] Speaker 03: And obviously, Judge Stoll can't hear if I'm wrong. [00:07:33] Speaker 00: I'm sorry? [00:07:34] Speaker 03: Can you look at Appendix 48 just to answer Judge Stoll's question, as opposed to skipping straight to the annex? [00:07:39] Speaker 03: I wanted to make sure. [00:07:40] Speaker 00: Well, the annex is part of it, right? [00:07:42] Speaker 00: I understand. [00:07:43] Speaker 03: But if I can answer on Appendix 48, then we can go to the annex, too. [00:07:46] Speaker 00: Oh, OK. [00:07:48] Speaker 00: And the annex itself says that they will impose Section 232 duties. [00:07:54] Speaker 00: on steel imports, right? [00:07:56] Speaker 00: I mean, that's what it's saying here. [00:07:58] Speaker 00: That, in fact, I would say it's- Are you reading from the annex now? [00:08:02] Speaker 00: No, I'm not. [00:08:02] Speaker 00: I'm reading from the proclamation itself. [00:08:05] Speaker 06: Appendix, page 48, under item 2, I assume. [00:08:10] Speaker 06: The end of that paragraph, this rate of duty, which is in addition to any other duties, fees, exactions, and charges applicable to such import at CLR. [00:08:17] Speaker 06: Is that what you were saying? [00:08:18] Speaker 04: Yes, that's what I was worrying about. [00:08:20] Speaker 04: Can you address that, and then you can turn to your other argument? [00:08:23] Speaker 00: Sure, sure. [00:08:25] Speaker 00: So it's 2, right, which is referring in the middle of it to the annex. [00:08:29] Speaker 00: But I'll stay with what it says in paragraph 2. [00:08:32] Speaker 00: It says that it will be collected in addition to any other duties, fees, exclusions, and charges. [00:08:39] Speaker 00: Absolutely. [00:08:40] Speaker 00: Our position is you will collect Section 232 duties in their entirety on import, and you will collect anti-dumping duties in their entirety on import. [00:08:52] Speaker 00: And that's what the president said. [00:08:55] Speaker 00: He said you must collect them both. [00:08:57] Speaker 06: Even though, in your view, by collecting the first, you reduce the second. [00:09:02] Speaker 00: Well, Your Honor, what we had said in our brief was we, in fact, do not believe that it's proper to assume, with a special duty like 232, that those duties are immediately being reflected in the price that an exporter is charging. [00:09:20] Speaker 06: Right, but do I remember right that in this particular order, the determination was that the duty was reflected in the price. [00:09:31] Speaker 06: And it was only because it was reflected in the price that Commer said, we will subtract it. [00:09:39] Speaker 00: In this case, there is another case in which the court has looked at the issue of whether a 232 duty [00:09:46] Speaker 00: is in or outside the price, but certainly is included or not in the price? [00:09:52] Speaker 06: Am I remembering correctly that in this particular case, for the six weeks or so of the period of review in this administrative order, that Commerce said that the 232D was in fact reflected in the price paid by [00:10:15] Speaker 06: by, I guess, the importer to the producer exporter. [00:10:19] Speaker 06: And it was for that reason that it was going to subtract that amount in this case. [00:10:26] Speaker 06: No? [00:10:27] Speaker 00: I do not recall that, Your Honor. [00:10:28] Speaker 00: I know that there was another issue in the court appeal originally that concerned whether or not there were Section 232 duties in certain sales that were made from inventory by Borisan. [00:10:41] Speaker 00: In other words, there was a question about the timing [00:10:44] Speaker 00: of whether the sales that entered during that six-month period were actually entries that were made after the duties were imposed. [00:10:55] Speaker 00: That was another issue in that court appeal before Judge Rustani. [00:11:00] Speaker 00: She sent it back to Commerce on remand. [00:11:02] Speaker 00: On remand, Commerce made the decision that [00:11:04] Speaker 00: In fact, the duties had not been collected because of the timing in which those entries had come into the United States. [00:11:12] Speaker 00: That was a factual decision, though, and whether the record ever supported it. [00:11:16] Speaker 00: But it didn't go to the broader issue here of whether or not, under the interpretation that commerce had given in stainless steel wire rod, [00:11:28] Speaker 00: of how you would distinguish a remedial duty from a normal customs duty. [00:11:34] Speaker 00: That was not part of the decision here. [00:11:37] Speaker 00: In other words, what we argued here is that it's not immediately apparent that there's a full pass-through [00:11:45] Speaker 00: of the Section 232 duty, right? [00:11:47] Speaker 06: So getting back to where I think we were talking about this paragraph too, how is it that a section that says this is supposed to be in addition to the other duties could be satisfied if you're going to essentially subtract out most or all of it by [00:12:12] Speaker 06: or eliminate most or all of the anti-dumping duty by not subtracting the 232 duty out of the US price part of the subtraction. [00:12:25] Speaker 00: Your Honor, I guess what I would propose here is just that the plain meaning of the words, this duty shall be collected in addition to, means that [00:12:38] Speaker 00: I don't care what other duties you have that are imposed on your imports. [00:12:43] Speaker 00: You have countervailing duties through 37 duties, whatever it is. [00:12:46] Speaker 00: I don't care about that. [00:12:48] Speaker 00: because you're going to have to pay those. [00:12:50] Speaker 06: Even though there were these steel duties in place for 35 years and the president determined that, notwithstanding that these duties were in place for 35 years, there was a national security problem, he's going to impose a duty on this. [00:13:05] Speaker 06: And most of that will actually not change, possibly, $1 in the net payment. [00:13:12] Speaker 06: That's the remedy you think that the president adopted when he said this is supposed to be on top of? [00:13:17] Speaker 00: Honestly, Your Honor, I guess our position would be that I don't believe that the president considered the proper treatment of these duties under the anti-dumping law. [00:13:26] Speaker 00: I don't think that you can assume that he knew how the anti-dumping law works specifically to deduct these duties, if they are considered special duties, from US price. [00:13:39] Speaker 00: I think the president was concerned not about what prior remedies had been imposed, because he's very [00:13:46] Speaker 00: He's very clear that he thinks none of those have been sufficient, right? [00:13:51] Speaker 00: So he wants more. [00:13:52] Speaker 06: He wants more. [00:13:53] Speaker 06: And you're going to say, it might not actually be anymore, because we're going to just subtract over on the left side what we're imposing on the right side. [00:14:01] Speaker 00: I think if the president had expressed a clear intent, for example, [00:14:07] Speaker 00: wanted a two-tiered duty, one on imports subject to dumping and one that's on imports that aren't subject to dumping, that's fine. [00:14:16] Speaker 00: He could have done that. [00:14:18] Speaker 00: But here, I think what we're dealing with really is commerce's own statute, the AD statute. [00:14:25] Speaker 00: And I think there would have to be a very high showing that the president actually intended to somehow [00:14:32] Speaker 00: and whether, in fact, has the legal authority to modify the dumping law. [00:14:39] Speaker 04: Are you writing out the words or almost crossing out the words in addition to? [00:14:43] Speaker 04: I'm just trying to understand your position. [00:14:46] Speaker 00: I guess think about it this way. [00:14:47] Speaker 00: Think about it this way. [00:14:49] Speaker 00: If an importer brings a product into the United States, what is he going to pay? [00:14:54] Speaker 00: He's going to pay the dumping duties he owes, if he owes countervailing duties, if he owes any other duties, [00:15:00] Speaker 00: 337 duties, whatever else he owes, he's going to pay those. [00:15:03] Speaker 00: And in addition to those, he's going to impose Section 232 duties. [00:15:09] Speaker 00: He's going to pay both. [00:15:11] Speaker 00: That's what the president meant. [00:15:12] Speaker 00: The president says, and I think if just for a moment you'll look at the annex, you'll see how the president is hoping to achieve this. [00:15:24] Speaker 00: I mean, when he says, sets forth the ordinary customs treatment, [00:15:29] Speaker 00: Right? [00:15:30] Speaker 00: He's specifically distinguishing the no special rates of duty, which are like GSP and other things like that. [00:15:39] Speaker 00: He's saying basically, look, you don't get a special rate of duty under this annex. [00:15:44] Speaker 00: You pay whatever is in the annex about what you owe under Chapter 99. [00:15:51] Speaker 00: Then he says, moreover, if you're paying [00:15:55] Speaker 00: anti-dumping, countervailing, any other duties or charges applicable to such goods, they're going to continue to be imposed. [00:16:02] Speaker 00: They're going to be imposed in addition to. [00:16:05] Speaker 00: So to assume that the president in that point in time was dealing with something more than his own authority to impose whatever he felt was necessary is, to me, I don't think the president was concerned about how, or I don't see any evidence that the president expressed any concern. [00:16:25] Speaker 00: about how the Commerce Department was going to do the calculation of the dumping margin. [00:16:32] Speaker 00: And I think the reality is that in cases where you have normal customs duties, people expect to incorporate those duties into their prices. [00:16:44] Speaker 00: But when you have a rapidly changing scene like this, where the president is announcing the duties and then imposing them, [00:16:52] Speaker 00: or in the case of Turkey, he's imposing them, and then he's removing them. [00:16:57] Speaker 00: There isn't the same ability to accept a 100% pass-through. [00:17:02] Speaker 00: I mean, contracts have already been signed. [00:17:07] Speaker 00: Material was on the water. [00:17:09] Speaker 00: So it's not like there's a 100% pass-through here, OK? [00:17:13] Speaker 00: The duties come into effect, and the price goes up to reflect those duties. [00:17:18] Speaker 00: I don't think that's realistic to expect. [00:17:22] Speaker 06: You have exhausted your time, and we will restore the rebuttal time. [00:17:27] Speaker 06: Oh, sorry, Your Honor. [00:17:28] Speaker 06: No, it's just not your fault. [00:17:30] Speaker 02: Good morning, Your Honors, and may it please the Court. [00:17:33] Speaker 02: The key question presented to the Court in this case is, what is the purpose of 232 duties? [00:17:41] Speaker 02: controls the dispositive statutory issue of whether Section 232 duties are US import duties for the purposes of the anti-dumping statute. [00:17:51] Speaker 06: Can I ask you this question? [00:17:52] Speaker 06: Why should the answer to that [00:17:56] Speaker 06: Why should there be a single categorical answer to the question of 232 duties and same on the 201 side? [00:18:05] Speaker 06: Why should it not depend on the particular presidential imposition since the president is in full control [00:18:12] Speaker 06: of the shaping of the 232 duty? [00:18:18] Speaker 06: And shouldn't the president be able, by clear enough language, to indicate that I want this imposed to use the 9705 language in addition to, or taking the 2002 or 2003, the Wheatland order, the old Wheatland order, where the president says nothing at all [00:18:39] Speaker 06: Why should it be categorical? [00:18:41] Speaker 06: I don't understand that. [00:18:42] Speaker 02: Well, because the language that is controlling the question is actually coming from the anti-dumping statute, 1677A, which is categorical towards US import duties. [00:18:57] Speaker 02: So the question becomes whether or not Section 2 does that. [00:19:00] Speaker 06: Why isn't it the case that under both 232 and 201, 203, the president can say, [00:19:07] Speaker 06: The duty that I will impose here, I will now define as follows, define in such a way that is supplemental to the amount to be paid under 1677A, or not supplemental of the amount, so that it is, the President gets complete control over this. [00:19:31] Speaker 02: Well, yes, Your Honor, under Section 232, the President does have complete control. [00:19:36] Speaker 02: So I guess, hypothetically, it's possible that a remedy could be crafted in that manner. [00:19:46] Speaker 02: But as the Court indicated earlier, [00:19:49] Speaker 02: This was a case where it was explicit that the remedy being crafted was in addition to. [00:19:55] Speaker 02: And that's consistent with both the statutory intent of Section 232, as well as the anti-dumping statute. [00:20:03] Speaker 02: So the question of whether or not it was appropriate to include the Section 232 duties starts with the anti-dumping statute. [00:20:18] Speaker 02: But turning back to 232, if I am understanding the court's question properly, yes, the president does have broad authority to impose. [00:20:27] Speaker 06: It seems to me that the president [00:20:30] Speaker 06: Just speaking for myself, the most challenging piece of this case is to think about how it relates to the earlier. [00:20:40] Speaker 06: One way to think about that is to look not at 232 as a indivisible unit in which there's a single answer regardless of what action is taken under 232 and similarly under 201, but to look at the two individual proclamations. [00:20:57] Speaker 06: 9705, very naturally read to say it has to be on top of and therefore you're going to subtract so you don't net out to zero or close to zero. [00:21:07] Speaker 06: There was no such thing in the presidential proclamation [00:21:10] Speaker 06: in the 2003 for whatever it was case. [00:21:15] Speaker 06: So looking at individual proclamations, there's a perfectly easy distinction. [00:21:21] Speaker 06: The president decided what the relation of those two things was to be different in the two cases. [00:21:27] Speaker 06: Why should we not look at the case that way? [00:21:32] Speaker 02: I think it's possible to look at the case that way, but I think it's also [00:21:37] Speaker 02: Appropriate to look at sort of the statutory underpinning of where those proclamations came from in talking about the Wheatland. [00:21:47] Speaker 06: One reason in Wheatland, one might read President Bush's proclamation at issue there, which says nothing about relation to other duties, unlike 9705, which does. [00:21:58] Speaker 06: is that there was a background from the little bit of legislative history in 1974, SAA in 1994, that suggested that the president would often view what he was doing under 201, 203 in relation to other duties and therefore [00:22:18] Speaker 06: Now, the Commerce Department, which is an executive branch under the president's authority, as the government's briefs in that case were at pains to point out repeatedly, the president, through the Commerce Department, was effectively saying, this is how I understand what the president did in the proclamation, the 2001-2003 proclamation there. [00:22:41] Speaker 06: And so the president was actually making the decision about the relation between those. [00:22:46] Speaker 06: Similar here, opposite relation, but it's proclamation specific. [00:22:51] Speaker 02: I think the proclamations certainly give effect to what's going on, but there is a distinct statutory purpose between 201 and Section 232, and that's what those proclamations were essentially fleshing out. [00:23:11] Speaker 02: In the Wheatland case, the difference there was that the government was proceeding from the point of view that in the anti-dumping statute, this term US import duties was going to be very broad and was going to encapsulate most, if not all, import duties. [00:23:31] Speaker 02: And so the question of whether or not to deduct Section 201 import duties became whether or not those duties were so similar [00:23:41] Speaker 02: to the purpose of the anti-dumping statute, that it made sense that they should be deducted to avoid this issue of double remedy. [00:23:49] Speaker 02: In this case, we don't have that issue, because the Section 232 duty is as... Why? [00:23:56] Speaker 06: I'm having some trouble understanding what the distinction is. [00:24:02] Speaker 06: the 201 situation and the 232 situation, though for different kind of ultimate purposes. [00:24:09] Speaker 06: One has to do with national security. [00:24:10] Speaker 06: The other doesn't. [00:24:11] Speaker 06: But they both have to do with a hurting domestic industry. [00:24:16] Speaker 06: And it's hurting because of imports. [00:24:20] Speaker 06: Why isn't that enough to indicate that the point of the duty is in some way the same to protect the domestic industry? [00:24:31] Speaker 02: Well, as the trial court indicated, there is a broad sense of the term that, yes, in this case, there is a remedial effect. [00:24:40] Speaker 02: But the difference is that section 232 does not require that there be a harmful importation practice going on in order for the duty to be levied. [00:24:54] Speaker 02: Section 201 does. [00:24:55] Speaker 06: I'm sorry. [00:24:56] Speaker 06: How could imports? [00:24:59] Speaker 06: adversely affect national security if they're not harmful on the domestic? [00:25:04] Speaker 02: Well, the idea being that it's a question of whether or not there's an unfair trade practice. [00:25:10] Speaker 02: And that's what we're looking at in the anti-dumping statute, essentially whether or not a product is being dumped in this country. [00:25:17] Speaker 06: I thought we were discussing how to compare 201 to 232, neither of which requires an unfair trade practice. [00:25:26] Speaker 02: The 232 duty can be imposed, like the example that the trial court gave, which I think is apt, is you could have a situation where, say for example, there's a nascent US industry. [00:25:40] Speaker 02: Maybe there are imports coming in, but it's not necessarily being harmed in that there is not an unfair trade practice. [00:25:49] Speaker 02: The product isn't being dumped into the country. [00:25:53] Speaker 02: the executive makes a determination that in order to help develop that industry, he's going to take some type of action, a tariff or other action, in order to bolster that industry. [00:26:05] Speaker 02: And I think one of the other key differences between 201 and Section 232 is that 201 contemplates the imposition of [00:26:17] Speaker 02: you know, safeguard duties, whereas 232 is very broad in what the presidents can impose. [00:26:24] Speaker 02: For example, the president could impose an entirely or a total ban on an import of a product in order to protect and develop the domestic industry for national security purposes. [00:26:40] Speaker 02: So really what we're looking at in terms of Wheatland versus this case is that [00:26:47] Speaker 02: Wheatland was a situation where, again, the government was looking at whether or not the 201 safeguard duties were so similar to the anti-dumping duty in their purpose that they should properly be considered special duties and therefore included in the US price. [00:27:09] Speaker 06: So do you think it's open to us to say we don't think that? [00:27:17] Speaker 06: our earlier decision, perhaps not even Congress's decision in Wheatland, but at least our decision, required a categorical answer to the question of 1677A treatment of all 201 duties, but rather answered only the question [00:27:40] Speaker 06: whether the particular 201 duty that President Bush imposed there was one that was going to be treated under 1677A as something to be subtracted or not. [00:27:59] Speaker 02: I think that the response to that is [00:28:04] Speaker 02: It is conceivable that the president through commerce could structure a duty under 232 to work in tandem. [00:28:17] Speaker 02: He could explicitly say, the remedy that I've selected is that I'm going to impose a duty, but that it will be deducted. [00:28:23] Speaker 02: That's within the president's broad authority. [00:28:26] Speaker 02: The categorical nature comes from [00:28:30] Speaker 02: that the president would always have the authority to levy the duty or other action, import ban or otherwise, on top of. [00:28:39] Speaker 02: the anti-dumping statute. [00:28:40] Speaker 02: So I guess the answer is, yes, it's conceivable it could be done that way. [00:28:44] Speaker 02: But it wasn't in this case. [00:28:46] Speaker 06: I'm sorry. [00:28:46] Speaker 06: I'm monopolizing here. [00:28:48] Speaker 06: But let me just refocus my question. [00:28:51] Speaker 06: Forget about 232. [00:28:53] Speaker 06: I'm thinking about how to read our precedent in Wheatland, which was about the 201 duty. [00:28:58] Speaker 06: Commerce there, it didn't write a regulation. [00:29:03] Speaker 06: It gave a rationale. [00:29:05] Speaker 06: in the context of deciding in a particular final order in final determination in that anti-dumping case whether to subtract something or not a 201 duty or not. [00:29:22] Speaker 06: That sounded kind of categorical. [00:29:25] Speaker 06: What I'm asking is, is it open to us to say we will read our Wheatland decision as approving only [00:29:36] Speaker 06: the proclamation-specific determination by commerce there, not a necessarily categorical treatment of all 201 or 203 impositions as being of the same nature, so that it is up to the president to decide through the president's proclamation what the relation is going to be. [00:30:05] Speaker 02: Yes, I think that's a fair reading of Wheatland, Your Honor. [00:30:09] Speaker 02: I see my time has expired. [00:30:11] Speaker 03: Good question. [00:30:11] Speaker 03: Do you believe that we need to apply Chevron deference for you to win in this particular matter? [00:30:21] Speaker 02: Well, I think there's no dispute that the term US import duties is ambiguous. [00:30:28] Speaker 02: I mean, this court found that in Wheatland. [00:30:33] Speaker 02: I mean, I think commerce's interpretation is reasonable. [00:30:39] Speaker 02: I'm sorry. [00:30:42] Speaker 02: I don't know if there's more to the court's question there. [00:30:45] Speaker 03: That's fine. [00:30:46] Speaker 06: Can I just flesh this out? [00:30:48] Speaker 06: Chevron today may not be what it was at the time of Wheeler. [00:30:53] Speaker 06: Suppose it is now the case. [00:30:58] Speaker 06: that considerably more than a paragraph or two of work is needed to get to the conclusion that Chevron step one doesn't answer the question. [00:31:07] Speaker 06: What do we do then? [00:31:10] Speaker 02: Oh, if we're discussing whether or not it's a Chevron step one or step two question? [00:31:16] Speaker 05: No, like the ambiguity question of whether that phrase, United States import duties, is ambiguous or not. [00:31:23] Speaker 05: I assume there's lots of Supreme Court decisions that have suggested a lot more has to be done to determine whether that's ambiguous or not. [00:31:31] Speaker 03: Sure. [00:31:31] Speaker 05: Are you really stuck with the determination that in Wheatland that that term is ambiguous? [00:31:38] Speaker 02: Well, I certainly think we're relying on the Wheatland decision for that finding that the term is ambiguous. [00:31:45] Speaker 02: I mean, I think in the briefing here, there wasn't any dispute over that. [00:31:49] Speaker 05: Setting that aside, do you think the term is ambiguous? [00:31:52] Speaker 02: Well, I think that it certainly is undefined as to its scope. [00:31:58] Speaker 02: I mean, the implication from Wheatland and where that case was being argued from was that the term was very broad. [00:32:06] Speaker 02: and encompassed most, if not all, US import duties. [00:32:12] Speaker 02: And so Wheatland was a case about why Section 201 shouldn't be included in that term. [00:32:20] Speaker 02: And so I think bringing that forward here is that, yes, the assumption would be then that Section 232 would be included in the term. [00:32:30] Speaker 02: Because again, there is a breadth to that that I think is quite large. [00:32:36] Speaker 06: OK, thank you. [00:32:39] Speaker 01: Your honors, good morning. [00:32:40] Speaker 01: May it please the court, Elizabeth Drake from Chagrin Associates on behalf of defendant Appellee Wheatland II. [00:32:46] Speaker 01: I would like to begin by addressing the court's last question. [00:32:51] Speaker 01: Obviously, Wheatland's position in that litigation as plaintiff is that the term US import duty was clear on its face. [00:32:58] Speaker 01: Included 201 duties, Wheatland found that it was ambiguous whether this court wishes to [00:33:04] Speaker 01: reexamine the alleged ambiguity of that term is obviously up to the court. [00:33:09] Speaker 01: But the important context for interpreting that term is that 1677A requires the import duties to be deducted from US price because they are not included in normal value. [00:33:21] Speaker 01: And so the only way to achieve an apples to apples comparison and an accurate dumping margin is to ensure that those [00:33:28] Speaker 01: US import duties, which are not included in normal value, are also not included in export price. [00:33:34] Speaker 01: Otherwise, 201? [00:33:36] Speaker 01: Excuse me? [00:33:38] Speaker 06: Why doesn't what you just say apply equally to 201? [00:33:42] Speaker 01: The difference that I think is most salient. [00:33:43] Speaker 06: That really is a precedent for us. [00:33:45] Speaker 06: The question is perhaps the scope of the precedent. [00:33:48] Speaker 01: Yes, Your Honor. [00:33:49] Speaker 01: And I believe that 201, one factor that weighed against that is that [00:33:55] Speaker 01: The legislative history at the SAA and in the 1974 act and in the act itself with regard to the commission directed both the commission and the president to take into account what anti-dumping duties already existed and to set the level of 201 duties in a way that took that into account. [00:34:13] Speaker 01: So one could read a 201 interpretation more broadly, not proclamation specific, obviously supported by the lack of language in the proclamation, but also by the legislative history that [00:34:25] Speaker 01: that created the statutory interplay between 201 and anti-dumping. [00:34:30] Speaker 01: And there's no such background in the 232 statute or legislative history. [00:34:36] Speaker 01: And so it would not be appropriate to make a categorical decision that 232 duties are always like 201 duties and must never be deducted from export price. [00:34:49] Speaker 01: And I would add, Your Honors, that [00:34:51] Speaker 01: In this case, Commerce did find that the 232 duties were included in the export price. [00:34:57] Speaker 01: And this is at appendix 1348. [00:34:59] Speaker 06: And this is where your little numerical example accounts for that. [00:35:04] Speaker 06: And the government's not the government's. [00:35:05] Speaker 06: The other side just does not. [00:35:07] Speaker 01: Exactly. [00:35:07] Speaker 01: That's right, Your Honor. [00:35:08] Speaker 01: And the points that Ms. [00:35:10] Speaker 01: Mendoza was raising about there's no pass-through or it's surprising, none of these points were raised [00:35:16] Speaker 01: before commerce. [00:35:18] Speaker 06: Can you address Ms. [00:35:19] Speaker 06: Mendoza's point about whether Proclamation 9705, what it implies, at least implies, maybe expressly says, about the relationship between the duty being imposed there and the treatment that should occur under the 31, 32 years worth of [00:35:44] Speaker 06: anti-dumping duties. [00:35:46] Speaker 01: Yes, Your Honor. [00:35:46] Speaker 01: I believe that at appendix page 48, paragraph 2 is very clear that the 25% 232 duty was to be in addition to any anti-dumping duties. [00:35:57] Speaker 01: It was also very clear from the annex that it was supposed to be in addition. [00:36:01] Speaker 01: If commerce were to adopt an interpretation that would not allow for the deduction of 232 duties, [00:36:08] Speaker 01: it would nullify those duties. [00:36:10] Speaker 01: They would not be, in effect, actually being collected in addition to anti-dumping duties. [00:36:15] Speaker 01: That would be completely contrary to the plain language of the proclamation. [00:36:20] Speaker 06: I took it that Ms. [00:36:22] Speaker 06: Mendoza, at least early in the argument, was making a point about the language used, I guess, by commerce in the earlier proceeding, 120 years ago. [00:36:36] Speaker 06: about normal versus special or something, which maybe was being equated with statutory versus presidential, or maybe was not. [00:36:49] Speaker 06: Could you address that? [00:36:50] Speaker 01: Yes, Your Honor. [00:36:50] Speaker 01: I respectfully disagree with Ms. [00:36:52] Speaker 01: Mendoza. [00:36:52] Speaker 01: I do not believe that commerce made such a broad sweeping interpretation. [00:36:56] Speaker 01: Instead, what commerce said, and this is at page 19159 [00:37:05] Speaker 01: stainless steel wire determination is at least some duties implementing trade remedies, including at least anti-dumping duties, are special duties that should be distinguished from ordinary customs duties. [00:37:19] Speaker 01: Commerce never said that every trade remedy duty is a special duty that can never be treated as a U.S. [00:37:25] Speaker 01: import duty under the anti-dumping statute. [00:37:28] Speaker 00: Thank you. [00:37:31] Speaker 00: I believe the language that Mr. Egg was quoting was the language concerning their interpretation of the 74 Trade Act in Congress and recognizing that at least some duties were special duties. [00:37:46] Speaker 00: Now, after citing to that, what commerce did here and did in stainless steel wire rod was to interpret a term in the statute [00:37:58] Speaker 00: wasn't to interpret the meaning of a particular proclamation or a particular type of remedy. [00:38:06] Speaker 00: It was to interpret the meaning of the term US import duties, United States import duties, in the law itself. [00:38:17] Speaker 00: Now, the court could walk away from Wheatland. [00:38:21] Speaker 00: I would say they would also be walking away with the analysis, at least, that the Commerce Department articulated they were using here. [00:38:29] Speaker 00: But it's very important to get to one other point. [00:38:33] Speaker 00: When the court and Commerce in stainless steel wire rod said that it would be a double collection of the duties [00:38:44] Speaker 00: if Section 201 duties were deducted from US price. [00:38:50] Speaker 00: What they meant by that was that if you deducted them, you collected them once as additional dumping duties, not the dumping duties that had normally been found. [00:39:01] Speaker 00: Because the normal dumping duties are definitely going to be collected with the 232 duty when you bring it in. [00:39:08] Speaker 00: But the court there was saying, but if you make us deduct those kinds of duties, [00:39:13] Speaker 00: What, in essence, you have there is a double remedy, because you are not only affecting what the dumping margin would otherwise be, i.e. [00:39:24] Speaker 00: you're increasing it by deducting 232 duties, and then you're turning around and deducting 232 duties again on entry. [00:39:33] Speaker 00: So I think the presumption here [00:39:36] Speaker 00: And it's the presumption behind Wheatlands Council's calculation is that somehow you're not starting with the same anti-dumping duty. [00:39:46] Speaker 00: Of course you're starting with the same anti-dumping duty. [00:39:48] Speaker 00: It's what's being calculated. [00:39:51] Speaker 00: The only way that you can get to the point of saying somehow that the dumping duty would be greater is if you assume that there's a total pass-through of Section 232 duties into the price. [00:40:05] Speaker 00: Nobody has said that that's the case here. [00:40:07] Speaker 00: Nobody has found that that's the case here. [00:40:09] Speaker 00: So going back again, what Commerce said, and Commerce was concerned about what Congress would think about its interpretation of the anti-dumping law. [00:40:22] Speaker 00: That's what they were concerned about. [00:40:23] Speaker 00: And they said, there's nowhere where Congress said you should collect this remedy twice. [00:40:30] Speaker 00: And therefore, since there's nowhere that Congress has said that, [00:40:33] Speaker 00: It's not the case. [00:40:34] Speaker 00: Now, Wheatland, in that case, I will tell you, argued that the president had expressed a preference for deducting 201 duties from price. [00:40:49] Speaker 00: They made that same argument for this court. [00:40:53] Speaker 06: OK? [00:40:53] Speaker 06: And the government, in its briefing in that case, as I recall, made a big point saying, in effect, you're telling us what the president thinks. [00:41:04] Speaker 06: We are the president. [00:41:06] Speaker 00: Right. [00:41:06] Speaker 00: But all I'm saying is that there's nowhere in the documentation [00:41:11] Speaker 00: of what the president said. [00:41:12] Speaker 00: I mean, if we're going to infer what somebody thinks the president said, but I mean, we have this plain language here. [00:41:19] Speaker 06: Right, but the proclamation in the earlier case said nothing at all. [00:41:24] Speaker 06: There was a dual legislative history background, 1974 and 1994, if I have the years right, that indicated that [00:41:34] Speaker 06: Often, the determination of what duty should be imposed under 201 should take account of anti-dumping matters. [00:41:45] Speaker 06: And against that background, commerce came in, presumably with presidential authorization, and said, that's [00:41:54] Speaker 06: implicitly been done here, and so we're not going to treat them as purely supplemental in the way. [00:42:02] Speaker 06: And the opposite is the case here under this proclamation. [00:42:05] Speaker 06: But that's a proclamation-specific determination. [00:42:10] Speaker 06: It's not 232 is all one thing. [00:42:12] Speaker 06: 201 is all one thing. [00:42:15] Speaker 00: Perhaps, Your Honor, but if you're talking about the Section 201 statute, which I believe you are, [00:42:22] Speaker 00: the overlap between the Section 201 statute isn't just with anti-dumping duties. [00:42:28] Speaker 00: In fact, the language that the court and commerce cited in stainless steel wire rod was the language that was actually in the Section 201 statute, which refers not just to anti-dumping duties and the need to [00:42:44] Speaker 00: juxtapose or take them into account. [00:42:47] Speaker 00: It also refers to Section 337 duties, countervailing duties, as well as remedial duties of all sorts, including presumably Section 232 duties, because we believe that it is a remedial duty. [00:43:00] Speaker 00: So this statutory interplay argument really was only developed in stainless steel wire rod, because they were only dealing with 201 and anti-dumping and all that. [00:43:11] Speaker 00: But it doesn't mean that the statute itself, if you look at it, doesn't also refer to other trade remedy statutes and the need to take those into account. [00:43:21] Speaker 00: So I think it's difficult to say that any of these decisions were about [00:43:25] Speaker 00: a very specific proclamation. [00:43:29] Speaker 00: I think that they were about interpreting section 201. [00:43:33] Speaker 00: What does section 201 say? [00:43:35] Speaker 00: Is there an interplay? [00:43:36] Speaker 00: Well, if there's an interplay with anti-dumping, there's certainly the same interplay with other remedial duties, 337 and all of the others. [00:43:43] Speaker 00: I think it's very difficult to step back from the decision in stainless steel wire rod where they were specifically saying, [00:43:54] Speaker 00: I, the Commerce Department, am interpreting the law that I administer. [00:43:58] Speaker 00: And I'm interpreting the term United States import duties. [00:44:03] Speaker 00: I think they're just entitled to deference on that interpretation. [00:44:07] Speaker 00: And I don't think that they meant, oh, we're only interpreting them in light of Section 201. [00:44:12] Speaker 00: In fact, they go out of their way to say that's not what they're doing. [00:44:14] Speaker 00: They start with the anti-dumping stuff. [00:44:16] Speaker 06: I think we're going over the old ground, and you're moving on over time now. [00:44:20] Speaker 06: Thank you, Your Honor. [00:44:21] Speaker 06: Thank you. [00:44:21] Speaker 06: And thanks to all counsel cases submitted.