garlic growers versus united states ruled in your favor and said that the rescission was bad ok am i correct in thinking we would not then reach the nd issue about the validity of the regulation because you then are having your review your are you could reach both issues they're not mutually exclusive no no but i'm saying if we rule in your favor on the st issue is it necessary to raise the nd issue as a as a jurisprudential that i think it is i think it is because you're going to be sending us back in the instance you just described to the department of commerce and they're going to be operating under a regulation that's an invalid interpretation of a statute that we that's going to have a review in place of your remit if in fact you insist their harmony does that does get reviewed because stan parker does have standing as a as a growing farmer which he does and you insist upon that rather than allowing commerce to reassess the issue the right we but yes and that's a narrow i believe you're right now what if you lose on the other hand what if we were to affirm the rescission of the harmonix review in the highly unlikely event we lose your honor yes you are correct we would have to look at th that commerce can say in mexico are the growers lied we therefore won't believe anything the new mexico are the growers say to us the net result remains a record not dependent on the new mexico garlic growers credibility establishing the only point at issue namely the new mexico garlic growers produced a domestic like product well spoken your honor your honor it is harmony submissions that prove they stand properly is a garlic warmer we believe he's credible bit for purposes of this appeal one doesn't really matter the misrepresentations so why wouldn't that govern such that commerce was within its discretion and we do review this under abuse of discretion standard to dismiss kick out the entire if it has said and i'm not sure it has said if you lie to us we are entitled by virtue of background inherent authority allowing us to protect the integrity of our proceedings to cannot sidestep that regulation by creating this series i mean terry i so i can i gather here you're arguing that any a claim inherent authority to to dismiss has to be tied to a particular have inherent authority even when standing exists to dismiss a project in petition suppose it was fraudulent not related to standing why doesn't commerce have inherent authority to dismiss a fraudulent we file petition riddled with fraud when you talk about a petition i've not open question your honor i'm not asking you to dispute the facts of my hypothetical i'm asking you to answer it why doesn't congress have inherent authority if petition contains fraud in it to dismiss that petition even if the fraud doesn't go to the standing because there is no authority as such anywhere in the statutes regulations or even the case law that i'm aware of for a review it st of all you have to be an interested party correct correct nd you have to explain why the person desires the secretary to review those particular exporters or producers ok now why are the three alleged misrepresentations here not pertinent to that why question st of all there's no don't there's no requirement of a certain motive the you have to say why you are seeking the review right correct and the regulation of the statute you're correct ok and i would think it's not unreasonable for congress to require someone to present it honest answers as to why they're some of the correct yes but it could be because i like blue shoes well there's no whatever the reason is you know if someone says i'm s request for reasons a b and c so i comply with the regulation and it's determined that a b and c are false why under the cases does not this congress and not have the discretion to disregard that and truth and said because even if and i know you're saying allegedly so just skip over that per nd maybe if they told the truth and said why and desiring it is because that somebody else a different export or foreign exporter paid me fifty grand to do this maybe we would th confronted with the question of whether or not congress is allowed to import some sort of motivation into the request but that's not the set of facts we have here we have a set of facts about them making assertion as to why and commerce determining that that assertion was a li and so that's where we are now so so given that they lied in their request why doesn't commerce have inherent authority to rescind the request of that point because congress didn't identify any allies in the request congress was explicit in the final i b m that motive doesn't matter what commerce identified were allegedly lines that are irrelevant things lines are you're you're you're making i think two different points and let me try to separate them one is a timing point the issues and decision memo identifies such leave three assertions that it says were knowingly false correct does it say those assertions were made in the request or at some later point at some later certainly not so even if they are legally immaterial there's a you have a point about timing yes and you think that that makes the regulatory requirement in applicable to these by assumption lies yes because the review of course is a very narrow document it's literally two pages it just basically says i'm a domestic producer i'd like you to take a look at the for next quarter and do what the act requires which is see if they're dumping and impose did i can i can sit down and find that exact a p x i'm not able to identify that at this point if that document them state why why the person desires yes and if it's a very brief statement i harmony and others and he and this is part of the record he's expressly said my price is to be with their prices because for many people garlic is government although there is a course a distinction between fresh garlic and imported garlic certainly if you talk business profit and others as well ultimately there is government so they're competing so i statement is inevitably true and the record confirms as well and further it's not what congress challenged as being allegedly lies those were other things that were irrelevant to the review request and irrelevant to stand well with the challenge was the why right what was what was put into into question was the why was this request no let me quote from the final i b m the final decision a legitimate domestic producer might have ties or affiliations with foreign companies and this would not cause the domestic producer to lose its status as a domestic interested party under the act so i now because i think that what the cia what what what went up on appeal and what the c i t said seems quite a bit more extensive than what you just read to me that's not my recollection your honor it is a long decision from judge barnett of the c r t but i don't believe he's no he's focused on the whys that the alleged lies that congress focused on which were those three categories i mentioned none of them being in the review requests all of them coming subsequent to the re moment he was paid to file this and had no personal motive to desire to do so if that was what the writer showed couldn't that impact the review requests just because the lie was uncovered later doesn't mean it can't affect his earlier actions the alleged lies would not impact because he's a domestic producer this is this is what gets lost in this conversation the statute requires one thing and one thing only you need to be a domestic producer you're correct he has to be a domestic producer i agree but being the domestic producer he also has to explain why you seeking the review that's part of the regulation and if that a challenge to the requirement in the regulation that the person requesting review explain why the review is being pushed i don't recall a challenge to that you may be right about that sure that portion of our brief has been handed by my partners you may be right about that narrow issue but but more important it's not a narrowly ship i mean it's part one of the or the why seems to be fairly important here but the why never there's no statement anywhere as to what the why must be there's no today that would be a fair requirement i'm not aware of where it states that the congressional statute is crystal clear you said to be a domestic producer because that's the point of the the project and i think you have your argument with my colleagues indulgence will give  over time congress the commerce department came to interpret that phrase as not only establishing a triggering event the filing of a review request but also was essentially modifying the scope allowing some companies to be excluded from the review if it weren't named in a review request but the rest of that statute the rest of the act and the legislative history are inconsistent with that interpretation to the point where it shouldn't survive a chevron analysis the amendment was never intended to change centrally the scope the very same statute six terms in the act and are used out the act to refer to specific products coming from a specific country these are not company specific concepts under the act also the legislative history of the one thousand eight hundred and four dollars amendment shows reviews of an entire order if there was no interest from the domestic industry not to allow companies to be excluded if they weren't named out at the if this did lands i think said that you could eliminate one thing am i correct in thinking that the guard corps so safe or council does not challenge the provision of the regulation that requires a person requesting a review to state why the reviews being are you're asking if we do not challenge that i understand i have it's the mind standing that that provision was not being challenged i realize you're making another argument just been articulating it but i don't see anywhere it challenges to the requirement in the regulation that the person requesting a review explain why he or she is requesting it to be to be frank i don't believe that is in our brain briefing that i could be wrong so i can accept you're not challenging the validity of that require i am not now ok and well your time is up to get it by a minute let's move on and hear from the other side ok so before we even start with the other side i hope that the two of you appreciate that that was a mistake a tactical mistake on your part you don't divide up time like that we could have he was adamant he's got three more cases that was the point we wanted at that point you should exceeded your time because he said he thought he had something really important that was clearly directly on point with what we wanted to talk about over here i can't fathom for the life of me how three of you are arguing two are going to argue for one minute each i expect you to stand up tell me the name of you're with well since that council table with you and all the formalities i will usually one minute that way and then he will sit down afterwards that is tactically crazy it's not helpful to the court to do that go ahead and apologize for th which we think defeats that point because it specifically requires the mystic producers to indicate why they want the review requests do you have the g a o a cite for the request that's at issue i do it's appendix one  it's starts on one hundred and forty three yeah it's it's about six sentences so it's not there and then it actually continues because it was actually part of a package so if you go to the attach a brief actually i'm sorry it wasn't part of the initiating petition it came a few days later and m g jussi wants to take this opportunity to express why investing heart be investigating army is important to the ability of n n g d c and two similar garlic producers throughout new mexico to compete in the fresh garlic market so there they go on to extensively explain why at least on the face of it they are requesting the review i do want to point out one thing which we don't mention in our because it did come up during titian's argument if you look at the p p i at speech one hundred and seventy nine dollars which is the last nine in this respect the regulations make clear the department may disregard views of domestic producers who are also importers of the subject merchandise and domestic producers who are related to such importers i think right there that kind of encapsulates this idea that if there i'm not precisely sure i'm sorry well because it matters whether we're talking about the petition or administrative review undoubtedly at the petition stage there's a massive inquiry large parts you know ultimately decided by the international trade commission about the the domestic industry correct there is no such inquiry at the administrative review if this is about the initial you know anti dumping duty petition stage it would be significantly more limited trump you are correct that dyke you see the international trade commission does regularly go behind the face of the petition to look at the credibility of the domestic interested parties interest in the review petition itself but we think that the law makes clear that that same interest is important during the credibility determinations for the administrative review process as well and we think you'd be  you can only ask that question in the st instance regarding the initiation of the antidumping duty order but then you can no longer make that in corrie for administrative reviews of that order we think that if you disconnect and to authorities that i think would be helpful to the court in this regard and that's kind of been the law domestic interested party provision was phrased as the way it was was because they wanted to ensure that the parties that had no stake in the result and the investigation wouldn't be filing petitions that would if this rate converses resources when it could be better spent on other issues that they had to try validity of that piece of the regulation has not been challenge here it has not been challenged judge and i think the briefing will show that and that's actually what we rely on because at the end of the day and i'm sure just to complete the issues and decisions memo says here the three says here are the three assertions which we're gathering from those whole out of the footnotes citing to letters and writings there are three assertions that commerce said you lied about these things when you that kind of matter under the regulation i think you i think you would but i think it's actually progressive issues throughout the entirety of government right it was baked into the entire review we're talking about what they're stating their interest is right but here here here's what i guess us even if under this broad brush theory the lies are immaterial and even if when we respond under six hundred and seventy seven eke by getting rid of every credibility based piece of evidence from the liar the fact the only facts relevant remain a stablished and it seems to me the one possibility of your having a n position than that is a regulation the one that we have that we have discussed and so it might matter whether the law is where in the document covered by the regulation as opposed to other things and i think one case that might be helpful would be the american society for prevention of cruelty to animals we sent in a brief where the d c circuit actually evaluated the question of standing under the under the endangered species act i recognize it's a different statute but again it's a statutory be standing we're also dealing with statutory beast and in that case then that case the parties proceeded all the way to trial where it was the trial judge that held after observing the witness on the stand that his interest in the review under the endangered species act because he was a play paid pla because he insistently lied because his motivations were questionable the court at trial said you no longer have standing so the standing inquiry isn't necessarily limited just to the initiated dition right but what i'm having trouble with it seems to me let's assume for purposes of this question that there is evidence from harmony establishing beyond any doubt that the new mexico growers produced a like kind product standing done over indisputable that that's right nevertheless we've been discussing quite a lot this morning about this piece of the regulation that says you have to tell us why which it seems to me cannot meaningfully go to standing in the statutory sense interested party but nevertheless an unchallenged regulation is a communication that the agency is interested in this subject and that regulation says tell us why in this document was there a law in this document and to be fair i don't think the agency treated the regulation as limiting them only to one document i think if they're going to say you know what is your interest in the review and at the heart of it that interest could evolve or change throughout the course of the review and that those various points if the the interest the stated interest during the course of the review is undermined by specifically about the floor and producer export anyone who's who's assertions about either affiliation with the government why entity or or what they did were absolutely the central issue in the administrative review actually yes in chaos alberta gas was not in ministry to review it was the initial proceeding where that the domestic parties effect on domestic industry right now as was crucial we don't have either of those two things we have the  request under sixteen thousand seven hundred and fifty three who apparently beyond dispute meets the statutory standard of producing domestic like product right and i believe that congress did not question that part of it what they did was they said under the regulation it's two prong it's domestic production and credible interest in the return interest in the review pursuit of regulation and when they found that so the regulation doesn't say some interest more than domestic like product it just says tell us honestly why you desire the review and it seems to me it's perfectly possible to lie about your statement why without that state the statement being a false statement if it was yours in other words i mean it's keep using this word it was a contrived assertion even if it was a true assertion about the underlying interest that there could have been but it wasn't your real interest you had a different interest rate but the way the regulation is students actually in the conjunct of it and so it can't just be redundant of the previous statement where then you must be a domestic producer which also means you have an interest in the review it says you must be a domestic producer and you must also state what you're interested in the review so we think that the regulation is best read as two or two separate require ments which is why i think and in g c understood that and also an attorney representing chinese garlic clients looking for domestic parties to essentially stand in the shoes of a domestic producer to essentially request a petition that they couldn't have otherwise requested because for next workers are allowed to petition congress to begin a review of a foreign exporting would have shouldn't have shown this treasure trove of documents showing an intent to manipulate congress reprocess at the end of the day that's what this case is about commerce needed to affect the statute and if you use this cases authority regarding p k s and home products to defend the integrity of its review process if your views are like this is allowed we're basically inviting other parties to undermine coverage converses review authority and we think the congress never intended outcome i see that my time is up we respectfully request the court affirmed the judgment of the good morning may it please the court john herman with kelly dry and warren on behalf of the apple e's fresh garlic producers association since my time is short i'd like to refer the court to one portion of the regulation three  originally that states that they were in producer or export or may only request a review of itself what's going on here is that you have as counsel for the united states just indicated you have a purported domestic producer standing in the shoes and putting forward a review request on behalf of a chinese entity that it otherwise would not have been able to make with respect to your question judge toronto regarding whether there were any misrepresentations and the request for an administrative review i would say yes absolutely you mentioned the three findings that the commerce department made in its use in decision memo the  st of which was whether chinese exports businessman were involved in the n m g g c review request that clearly was the reason that the request went forward if you look at the industry and record result thank you very much thank you your honor i did find the answer to the one question notably from judge on justice toronto in the c i t opinion a p p x thirty three the justice the judge barnett states the wire that was listed by mr crawford as falls why investigating harmony was important to the ability of the coalition and to similar garlic producers throughout new mexico to compete in the fresh garlic market this is the this is the this is from just barnett a p p x thirty introduces its reason for being as stating the reasons why we're participating which suggests that every word that follows is also about that subject including the words about being scared four doesn't contain a statement of why at all not a word does it and that i'm not sure about that i'm not sure but i thought that was what judge barnett was quoting here from the opinion but perhaps but actually doesn't matter because again there's no requirement anywhere that there be a motive now and i can actually i can actually speak about that because not really enough time i'm going to move to that sharing donkeys which which the u