Commerce’s Proposed Regulations and The Economics of Trade Remedies

As has been widely publicized, the U.S. Department of Commerce recently issued proposed amendments to its antidumping (AD) and countervailing duty (CVD) regulations. [1] These proposed amendments come in the wake of Commerce’s revisions to the regulations governing scope and anti-circumvention proceedings, as discussed in my note posted in October 2021. The new proposals cover a broad range of topics, both technical and substantive, several of which are novel and significant. In this note, I focus on one of the more far-reaching proposed revisions – namely, the expansion of the types of issues that the trade remedy laws are intended to address.

Traditionally, the AD and CVD laws have been understood as limited to specific types of economic conduct – predatory pricing (or price discrimination) in the case of AD, and government financial contributions that confer a benefit on foreign producers/exporters in the case of CVD. The proposed regulations will significantly expand that scope by authorizing proceedings to address the fundamental economic concept of externalities, as well as benefits to foreign production that are difficult to quantify, such as lax enforcement of labor, environmental, human rights, and intellectual property (IP) rules. The proposed expansion of the U.S. trade remedies regulations is consistent with the current Administration’s efforts to include non-traditional elements in trade agreements and in the standards by which international trade is to be judged.

Several aspects of this proposed expansion of the trade remedies regulations deserve attention.

First, the Proposed Rule would address not just actions taken (or financing provided) by foreign governments to support their producers and exporters, but also foreign government “inaction” in enforcing their laws in the fields of property rights (including IP), labor protections, human rights, and environment protection, where that inaction “evinces the existence of a financial contribution” to a foreign producer. [2] The Proposed Rule explains,

“We recognize that every country retains discretion to pursue its own priorities, whether through directed efforts to assist in the economic success of its domestic industries, such as subsidies and government assistance, or by implementing and enforcing certain laws, policies and standards for the public welfare. However, we also recognize that when governments take little or no action to implement or enforce such laws, policies, and standards, benefits may accrue to a company in a way that provides the company with a financial advantage over its competitors.” [3]

What is intriguing is not just the expansive reach of the Proposed Rule, but also that Commerce’s explanation uses language broader than that traditionally used to describe and justify the trade remedy laws. That is, Commerce’s explanation uses the economic terminology found in studies of externalities to describe the failure of markets to set prices that capture the social costs of production. Commerce explains that producers do not typically consider externalities (i.e., “the indirect societal costs of their production decisions”) when setting prices and calculating profits, and as a result, government regulation is necessary to ensure that those externalities are captured and the full “cost of compliance” is considered by producers. Classic sources in the economic literature, such as Coase and Samuelson, are cited in support of this principle. [4] The logical outcome of this analysis, according to Commerce, is that the failure of a foreign government to enforce its regulations confers a benefit on producers who are not required to fully internalize the social costs incurred through their productive activity.

Second, Commerce justifies the proposed rule in part by comparing the economic impact of government inaction across, rather than within, countries. The Proposed Rule states:

“These examples of foreign government inaction could result in costs and prices that are unreasonably suppressed and create an unlevel playing field between producers and suppliers in countries in which governments provide weak, ineffective, or nonexistent property (including intellectual property), human rights, labor, and environmental protections, and producers and suppliers in countries in which the governments provide and enforce such protections.” [5]

This reasoning seems to conflate the situation in countries where necessary rules don’t exist with countries where rules exist but are inadequately enforced. Put differently, the term “provide,” in the quoted text, is different from “enforce.” It would be difficult, if not impossible, to compare the “costs of compliance” [6] across countries when different countries impose different compliance obligations in the first place.

As noted above, Commerce concedes that different countries will have different enforcement priorities. And it appears to recognize the obvious point that the trade remedy laws of a single country – such as the United States – are not a suitable engine to ensure that the entire global economy accedes to a given level of labor, environmental and IP standards. However desirable such global standards may be, they must be established through multilateral (or at least bilateral) agreement, as seen in the United States’ negotiation of agreements that include such standards. But if that is true, then it would be difficult for CVD rules to be applied through a comparison of general policies regarding cost internalization in one country against another, despite what Commerce seems to be saying at several points in the Proposed Rule. [7]

Third, the Proposed Rule would apply the “inaction” principle in several ways. A finding that a foreign government failed to enforce its rules would impact CVD determinations in two ways, and one in AD. The first CVD impact is direct, if limited. A proposed new regulation, 19 C.F.R. 351.529, would provide that a failure by a foreign government to impose or collect “fees, fines, and penalties” from a producer/exporter would be treated as a countervailable subsidy. This would be limited, presumably, to situations in which the other criteria for countervailability – most importantly, specificity – were also found to exist. The countervailable benefit would be measured as the amount of the fee that was not collected, or the amount of interest foregone in the case of deferred payment of a fee. [8]

The second CVD impact is less direct, but it raises more fundamental issues. The Proposed Rule would amend section 351.511(a)(2) of Commerce’s regulations, concerning the benchmark used to determine whether a foreign government is providing goods or services at “less than adequate remuneration.” The proposed amendment would authorize Commerce to consider whether “certain prices are derived from countries with weak, ineffective, or nonexistent property (including intellectual property), human rights, labor, or environmental protections.” If so, those prices could be excluded from the benchmark against which the provision of goods or services by the government under investigation to its producers/exporters would be measured. As the quoted language makes clear, the exclusion of the third country’s prices from the benchmark would be based on broad social and economic findings – far broader than the “fees, fines, and penalties foregone” principle. Importantly, however, the financial impact of those broad findings – i.e., the “weak, ineffective or nonexistent” legal protections – would not have to be quantified, thus avoiding what would entail a very complex exercise.

In the AD space, the proposed impact of the “inaction” principle focuses on the calculation of dumping margins for non-market economy (“NME”) countries – primarily China and Vietnam. In calculating the dumping margin for an NME producer, Commerce does not determine the “normal value” (“NV”) of the merchandise exported to the United States on the basis of the prices charged by that producer in its home country. Rather, it bases NV on the value of the inputs (“factors of production” or “FOPs”) used to produce the subject merchandise in a “surrogate” market economy country at a level of economic development comparable to the NME. [9] The Proposed Rule would authorize Commerce to disregard a proposed market economy surrogate value if, inter alia, that value is “derived” from an industry, region or country with “weak, ineffective, or nonexistent property (including intellectual property), human rights, labor, or environmental protections.” [10] Thus, for example, if the environmental protections or IP enforcement in proposed surrogate countries for China, such as Romania or Malaysia, are found to be inadequate, and if they “undermine the appropriateness” of the value of a significant FOP, then Commerce could disqualify that surrogate country’s data to value the FOP.

Finally, on a procedural matter, Commerce has invited comments on the Proposed Rule, which are due by July 10, 2023. The Proposed Rule will certainly be subject to careful review by Commerce before it is finally promulgated, and the provisions discussed in this note may undergo substantial revision. In addition, however it is finally formulated, the Proposed Rule will almost certainly be subject to challenge, either in domestic litigation – as exceeding the scope of the AD/CVD laws and Commerce’s authority as granted by Congress – or the WTO – as exceeding the scope of the AD/SCM Agreements to which the United States acceded – or both.

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Through his 39 years of experience in the international trade regulatory field, Neil Ellis has worked extensively with his clients in evaluating and commenting on proposed amendments to U.S. statutes and regulations. If you have questions regarding the Proposed Rule – either the specific topics discussed in this note, or otherwise – please feel free to contact us at neil@neilellislaw.com.

[1] U.S. Dep’t Commerce, “Regulations Improving and Strengthening the Enforcement of Trade Remedies Through the Administration of the Antidumping and Countervailing Duty Laws,” 89 Fed. Reg. 29850 (May 9, 2023) (“Proposed Rule”).

[2] Id., 89 Fed. Reg. at 29858.

[3] Id.

[4] Id., 89 Fed. Reg. at 29859 n.29 (citing, among others, the classic article by Ronald Coase, “The Problem of Social Cost,” 3 J. L. & Econ. 1 (1960)).

[5] Id., 89 Fed. Reg. at 29859.

[6] Id.

[7] And indeed, challenges of general economic and welfare policies enacted by foreign countries may necessarily be limited by the “specificity” concept that underpins the CVD law. See 19 U.S.C. 1677(5A); WTO Agreement on Subsidies and Countervailing Measures, Arts. 1.2 & 2.

[8] The proposed regulation, 19 C.F.R. 351.529(b), explains that the deferral of the payment of a fee, fine, or penalty would be treated as a government-provided loan in the amount of the payment deferred.

[9] See 19 U.S.C. 1677b(c); 19 C.F.R. 351.408.

[10] Proposed Rule, 89 Fed. Reg. at 29875 (proposing new subsection 351.408(d)).

The Limits of Deference – Again

Returning to one of the themes discussed in my note posted in February of this year, the U.S. Court of Appeals for the Federal Circuit has recently issued two more decisions reflecting skepticism toward the reasoning of the U.S. Department of Commerce in anti-dumping cases. Such judicial skepticism generally has focused on the interpretation of statutory text, rather than the evaluation of factual evidence on the record. This is not surprising, given that appellate judges are removed from the process of building and parsing the complex factual records on which dumping determinations are made, and that the standard of judicial review of agencies’ factual determinations (“substantial evidence”) is a lenient one. The interpretation of text, on the other hand, is a more abstract legal task with which judges may feel more comfortable.

(Before I go too far with this simple vision of appellate review, however, I should note that there are – and must be – exceptions. To take one example, in SolarWorld Americas, Inc. v. United States, 962 F.3d 1351 (Fed. Cir. 2020), in which I was involved, the Court of Appeals studied very detailed Thai surrogate value data used to construct the normal value for Chinese exports of solar panels to the United States. The Court concluded that certain elements of the Thai data were aberrational, which resulted in artificially inflated dumping margins.)

The most recent example of the Court’s statutory construction is found in YC Rubber Co. v. United States, issued on August 29. The issue on appeal concerned the calculation of the “all-others” rate for cooperative but non-mandatory respondents in an anti-dumping annual review in which there was only one mandatory respondent (after the second respondent selected as a mandatory withdrew from the review). The statute provides that generally a dumping margin is to be calculated for each individual respondent, but it provides an exception in situations where there are too many, in which case Commerce may calculate individual margins for a “reasonable number” of respondents. 19 U.S.C. 1677f-1(c)(2). [1] Commerce is then directed to calculate an average “all-others” rate to be applied to the non-selected respondents on the basis of those individual dumping margins (with exceptions not relevant here). 19 U.S.C. 1673d(c)(5).

The central question on appeal was whether an “average” could be based on a single datapoint in the numerator and the number “1” in the denominator. Commerce has long thought it could calculate an average on this basis, and the Court of International Trade (CIT) agreed. The Court of Appeals reversed, explaining that the statutory phrase “reasonable number of exporters and producers” in section 1677f-1(c)(2) demonstrated a legislative intent that more than one mandatory respondent would be subject to individual analysis. And for the purpose of calculating the “all-others” rate, section 1673d(c)(5)(A) uses the phrase “the estimated weighted average dumping margins established for exporters and producers individually investigated” – again contemplating a number greater than one. [2]

The decision in YC Rubber may have a significant impact on the administration of anti-dumping reviews, because it appears to compel Commerce to select at least one new mandatory respondent in cases where it initially selected only two and one of them has subsequently withdrawn from the review. Doing so under the statutory deadlines may place significant time pressures on Commerce and the newly-selected respondent.

The Court of Appeals’ reliance on statutory text to question Commerce’s reasoning is seen in another recent case, Hitachi Energy USA Inc. v. United States, 34 F.4th 1375 (2022). [3] Here, Commerce initially accepted a respondent’s reporting of expenses associated with its U.S. sales, but later, upon remand, revised its methodology. Commerce then claimed that information on certain U.S. expenses needed under the new methodology was missing from the record, but it refused to provide the respondent an opportunity to submit the missing evidence. Instead, Commerce applied partial “adverse facts available” (“AFA”) to determine the respondent’s dumping margin. The CIT affirmed Commerce’s decision, but the Court of Appeals reversed.

The Court of Appeals focused on the statute governing reporting deficiencies, 19 U.S.C. 1677m(d), which requires Commerce to “promptly inform the person submitting the response of the nature of the deficiency and . . . to the extent practicable, provide that person with an opportunity to remedy or explain the deficiency.” The Court rejected Commerce’s arguments as to why a deficiency notice was not required in this case, stating that “the statutory entitlement to notice and opportunity to remedy any deficiency is unqualified.” 34 F.4th at 1384. The Court also concluded that Commerce failed to demonstrate that the respondent had engaged in any of the “transgressions” listed in 19 U.S.C. 1677e(a), which would authorize recourse to AFA in determining the dumping margin under section 1677e(b).

But there are limits to judicial skepticism. Over the years, the Court of Appeals has shown a greater degree of deference toward agency decisions involving analysis of detailed factual records (despite the exception noted in my parenthetical above). It also has deferred to Commerce’s interpretation of statutory text in situations where the statute is perceived as ambiguous or silent, in which case the Court analyzes Commerce’s interpretation pursuant to the two-step Chevron framework. A very recent example of such deference is found in Shanzi Hairui Trade Co. v. United States, 39 F.4th 1357 (Fed. Cir. 2022), in which the Court of Appeals affirmed Commerce’s application of an AFA-based margin to compute the “all-others” rate in an annual review. The statute – specifically, the same section 1673d(c)(5) parsed in YC Rubber, discussed above – expressly excludes the use of AFA-based rates to calculate the all-others rate, but only in investigations. As to annual reviews, “Congress ‘left a gap for {Commerce} to fill’,” 39 F.4th at 1361 (quoting Chevron), and the Court of Appeals accepted the manner in which Commerce filled that gap. [4]

In sum, the Court of Appeals’ unsurprising, if imperfectly-consistent, hospitality toward text-based legal arguments should influence the manner in which parties challenge – and defend – decisions of the U.S. trade agencies.

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Through his 38 years of experience in the international trade regulatory field, Neil Ellis has litigated numerous cases involving the U.S. trade laws before the administrative agencies, U.S. courts, and in WTO dispute settlement proceedings. Please contact us at neil@neilellislaw.com with questions that you may have regarding trade litigation strategy.

[1] In the slip opinion, the Court unfortunately confuses the analysis by repeatedly referring to this statutory provision as “1677(c)” and “1677(c)(2)”. There are no such statutory provisions, and the text quoted in the opinion is actually found in sections 1677f-1(c) and 1677f-1(c)(2), to which the opinion sometimes correctly refers.

[2] The Court of Appeals noted that the CIT in fact had already adopted this interpretation of the statutory text in decisions issued over a decade ago. But that line of cases was ignored by Commerce over the years and distinguished by the CIT (erroneously, it turned out) in YC Rubber.

[3] In addition, as discussed in my February note, the Court of Appeals rejected Commerce’s textual interpretation in another recent case, regarding the so-called “particular market situation” statutory provision. Hyundai Steel Co. v. United States, 19 F.4th 1346 (Fed. Cir. 2021). I will forego repeating that discussion here, except to note that since that time, the Court of Appeals has reaffirmed its position by denying a motion for rehearing.

[4] As stated in my February note, however, there have been times when the Court of Appeals has refused to defer to Commerce’s interpretation of the statute, concluding that the legislative silence indicates a prohibition, not a “gap” that may be filled by Commerce. These alternative strands of judicial reasoning create an unresolved tension in the jurisprudence.

When Statistics Matter

Appellate litigation is generally the final throw of the dice, so to speak, in U.S. trade regulatory disputes. Litigants, therefore, should carefully consider both the substance and presentation of their appellate arguments. To illuminate what may seem like an obvious point, this note focuses on two recent decisions of the U.S. Court of Appeals for the Federal Circuit (CAFC).

The CAFC is almost invariably the court of last resort in appeals from decisions by the U.S. trade enforcement agencies – the Department of Commerce and the International Trade Commission. The CAFC tends to exercise a large degree of deference to the decisions of the agencies it reviews. The U.S. Supreme Court in Chevron instructed courts to apply a deferential standard of review toward decisions of administrative agencies – an instruction that the CAFC has taken very seriously, peppering its opinions with statements regarding the “tremendous deference” afforded to Commerce,[1] and the agencies’ “broad discretion”.[2] These statements would appear to bode poorly for parties seeking to overturn such determinations.

There are sources of authority, however, that the CAFC appears willing to evaluate with less deference toward the agencies’ interpretations. One such source is obvious – namely, the statutory texts enacted by Congress to govern trade remedy proceedings – although as I discussed in a recent note, even this source is subject to conflicting modes of interpretation by the Court of Appeals. Intriguingly, another external source of authority for which the CAFC has been willing to employ a searching inquiry is the statistical analytics of numeric data. In two recent decisions, the CAFC has undertaken a probing review of statistical concepts, which resulted in skepticism toward the Commerce Department’s practice.

A closer look at the Court’s treatment of these two categories of sources is worthwhile for parties preparing their appellate strategy.

The Court’s treatment of statutory text has not been linear. The Court has, on occasion, taken a bold position by parsing the statutory text, but then, when blowback erupted and the broad implications of its position became apparent, it has retreated from its interpretation without formally overruling it. One example of this dynamic involved the International Trade Commission’s analysis of causation – i.e., whether the material injury felt by the U.S. industry was “by reason of” the imports subject to an investigation. In Gerald Metals, Inc. v. United States, the CAFC ruled that, at least in an investigation involving a fungible commodity product, the ITC had to consider the possibility that the presence of fairly-traded imports in the U.S. market disrupted the causal link between the subject imports and the injury felt by the U.S. industry.[3] The Court reiterated that ruling in subsequent cases involving commodity products, such as Caribbean Ispat Ltd. v. United States,[4] and Bratsk Aluminum Smelter v. United States, in which it held that “the Commission is required . . . to directly address whether non-subject imports would have replaced the subject imports without any beneficial effect on domestic producers.”[5]

This series of appellate decisions caused an uproar in the trade remedies practice, and the ITC added a step to its injury inquiry, while protesting that it was compelled to do so by Court directive, unmoored from the statutory text. The Court subsequently retreated from the potential breadth of Gerald and Bratsk, in Mittal Steel Point Lisas Ltd. v. United States.[6] There the Court explained that it had not intended to reorient the ITC’s injury inquiry toward the future effectiveness of a proposed antidumping order; rather, it just meant that the ITC must consider, in a market involving a commodity product in which non-subject merchandise was present, whether injury could be attributed to the subject merchandise, as part of its “but for” causation analysis.

Another example of judicial sally-and-retreat is seen in Dongbu Steel v. United States,[7] and JTEKT Corp. v. United States,[8] in the context of a “targeted dumping” / “zeroing” dispute. The Court in those cases wondered how Commerce could interpret a single statutory text, 19 U.S.C. 1677(35), to mean one thing in antidumping investigations and something different in annual administrative reviews. These decisions released a flood of uncertainty among parties to antidumping proceedings as to whether Commerce’s express abandonment of zeroing in investigations (in response to several unfavorable WTO decisions), now compelled the abandonment of that practice in reviews as well. Commerce, however, persevered in applying zeroing in administrative reviews, and explained how a statutory provision could tolerate different meanings depending on the situation. The Court retreated from the implications of Dongbu and JTEKT, and affirmed Commerce’s explanation in Union Steel v. United States.[9]

Recent cases involving statistics, however, demonstrate that the Court of Appeals does not always retreat after its sally, even in important but highly technical applications of the antidumping law. An example involves, again, Commerce’s “targeted dumping” methodology. The Court has affirmed several major aspects of that methodology (despite a series of unfavorable decisions by the WTO Appellate Body), concerning issues such as Commerce’s use of the “average-to-transaction” comparison method in annual administrative reviews even though the statute only authorizes that comparison method in investigations,[10] and Commerce’s reliance on the difference in the magnitude of margins between the average-to-average and average-to-transaction comparison methods to satisfy the statutory test whether the former method can “adequately account for” any targeted dumping that is found to exist.[11]

The Court’s deference to Commerce’s “targeted dumping” methodology appears to have reached its limit, however, when it came to issues regarding the use of statistics. In recent years, Commerce has applied a statistical test, known as “Cohen’s d”, to determine whether a foreign exporter has engaged in “targeted dumping” – i.e., a pattern of export sales that differ significantly among purchasers, geographic regions, or time periods. Put simply, Commerce applies the Cohen’s d test by calculating the difference between the means of the sales prices of the test group and the comparisons group of export sales, and then dividing that difference by the simple average of the two groups’ standard deviations.[12]

Within the past nine months, the Court of Appeals has twice issued opinions rejecting various aspects of Commerce’s methodology. The CAFC found that Commerce’s methodology, although derived from a statistical test to determine whether pricing differences were significant, had deviated from important premises that were necessary to ensure that the statistical test would generate meaningful results. In Stupp Corp. v. United States, the Court reviewed the literature on Cohen’s d, and spotlighted “Commerce’s application of the Cohen’s d test to data that do not satisfy the assumptions on which the test is based.”[13] The Court identified three characteristics of export price data that would render the test results suspect – namely, where the data groups being compared were small, were not normally distributed (i.e., not approximating the shape of a bell curve), and had disparate variances – and noted that Commerce applied the test without evaluating the data to determine the presence of those characteristics.

And just last week, in Mid Continent Steel & Wire, Inc. v. United States,[14] the Court found that the use of a simple average, rather than a weighted average, in the denominator of the Cohen’s d ratio could distort the results, particularly where the groups of sales being compared were of unequal size. The Court relied on statistics-based reasoning to reject Commerce’s defenses of its methodology, and concluded that:

Commerce's job is not to follow a statistical test as explained in published literature for its own sake, but to implement the statutory mandate to determine when prices of certain groups “differ significantly.” In implementing a statutory mandate, an agency is not duty-bound to follow published literature . . . . But here Commerce embraced the Cohen's d statistics measure and relied on the literature for that measure in making its statutory significance assessment . . . .[15]

As a practical matter, Stupp and Mid Continent may have a significant impact on antidumping proceedings, because Commerce applies the targeted dumping (or “differential pricing”) analysis in almost every case in which dumping margins are calculated.[16] The machinery by which Commerce makes its targeted dumping determinations is detailed and complex, so revisions may be complex and far-ranging. Nonetheless, the Court in Mid Continent did not appear to be discouraged from pursuing its logic regardless where it may have led. It linked its statistics-based analysis to the underlying legal standard of judicial review, stating:

. . . Commerce needs a reasonable justification for departing from what the acknowledged literature teaches about Cohen's d. It has departed from those teachings about how to calculate the denominator of Cohen's d, specifically in deciding to use simple averaging when the groups differ in size. And its explanations for doing so fail to meet the reasonableness threshold (a deferential one, in recognition of expertise) for the reasons we have set forth.[17]

Despite the nod to the “deferential” standard of review, this statement reveals a willingness on the part of at least some of the Judges on the Court of Appeals to engage in a rigorous consideration of statistics issues, and are willing to be skeptical of Commerce’s efforts to simplify the application of statistics in discharging its statutory obligations.

The focus of arguments presented to the Court, and the manner of their presentation, do indeed matter.

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Through his 38 years of experience in the international trade regulatory field, Neil Ellis has litigated numerous cases involving the U.S. trade laws before the administrative agencies, U.S. courts, and in WTO dispute settlement proceedings. Please contact us at neil@neilellislaw.com with questions that you may have regarding trade litigation strategy.

[1] Smith-Corona Group v. United States, 713 F.2d 1568 (Fed. Cir. 1983).

[2] Borusan Mannesmann Boru Sanayi Ve Ticaret A.S. v. Amer. Cast Iron Pipe Co., 5 F.4th 1367 (Fed. Cir. 2021).

[3] 132 F.3d 716 (Fed. Cir. 1997).

[4] 450 F.3d 1336 (Fed. Cir. 2006).

[5] 444 F.3d 1369, 1375 (Fed. Cir. 2006).

[6] 542 F.3d 867 (Fed. Cir. 2008).

[7] 635 F.3d 1363 (Fed. Cir. 2011).

[8] 642 F.3d 1378 (Fed. Cir. 2011).

[9] 713 F.3d 1101 (Fed. Cir. 2013).

[10] JBF RAK LLC v. United States, 790 F.3d 1358 (Fed. Cir. 2015).

[11] Apex Frozen Foods Pvt. Ltd. v. United States, 862 F.3d 1322 (Fed. Cir. 2017).

[12] The calculation is more complex than this, but it will suffice for purposes of this note.

[13] 5 F.4th 1341, 1357 (Fed. Cir. 2021).

[14] 2022 U.S. App. LEXIS 10767 (Fed. Cir. April 21, 2022) (reaffirming and expanding on its decision in a prior iteration of the same appeal, 940 F.3d 662 (Fed. Cir. 2019)).

[15] 2022 U.S. App. LEXIS 10767, at *32.

[16] Indeed, the Court of Appeals recently remanded another case in light of Stupp. See Nexteel Co. v. United States, 28 F.4th 1226 (Fed. Cir. March 11, 2022).

[17] 2022 U.S. App. LEXIS 10767, at *33 (emphasis added).