[00:00:35] Speaker 05:
Okay, the next argued case is number 19, 1207 CP Calco U.S.

[00:00:48] Speaker 05:
Incorporated against the United States.

[00:00:50] Speaker 05:
Ms.

[00:00:51] Speaker 05:
Noonan?

[00:00:59] Speaker 04:
May I please the court?

[00:01:00] Speaker 04:
For the record, my name is Nancy Noonan.

[00:01:02] Speaker 04:
I'm from Arendt Fox.

[00:01:03] Speaker 04:
I've got my colleague, Frederick Gorgons, at council table with me.

[00:01:07] Speaker 04:
We represent the plaintiff-appellant of BP Calco, U.S.

[00:01:11] Speaker 04:
Inc.

[00:01:11] Speaker 04:
This case is about the U.S.

[00:01:12] Speaker 04:
Department of Commerce's calculation of normal value in the anti-dumping duty investigation on zanthan gum from China for a company known as Fufang.

[00:01:22] Speaker 04:
Commerce treats China as a non-market economy country.

[00:01:25] Speaker 06:
Did anybody get the thing translated, the two paragraphs?

[00:01:28] Speaker 06:
Did you get it translated?

[00:01:29] Speaker 06:
No, Your Honor.

[00:01:30] Speaker 06:
To your knowledge, get it translated?

[00:01:33] Speaker 04:
To my knowledge, no one got it translated.

[00:01:35] Speaker 04:
Certainly it was never put on the record as being translated.

[00:01:38] Speaker 06:
I mean, I find this entire exercise to be unusual.

[00:01:45] Speaker 06:
I have seldom seen the CIT strong arm commerce as much as they did here.

[00:01:51] Speaker 06:
And I'm not sure what to make of the two paragraphs that aren't translated and whether Commerce has the discretion to decide what to do with the document in a case like that.

[00:02:03] Speaker 06:
I mean, we have so many cases.

[00:02:04] Speaker 06:
Commerce has the authority to use best available information.

[00:02:08] Speaker 06:
I mean, they have so many rights and so much discretion to choose what data that they're willing to rely on and not when a foreign entity submits a document that's not entirely translated.

[00:02:19] Speaker 06:
It's hard for me to imagine that I'm the best person to decide whether the untranslated part is important or not or whether commerce ought to be able to disregard it.

[00:02:28] Speaker 06:
So I'm kind of confused by this case.

[00:02:33] Speaker 04:
I was very surprised by the court's fourth remand determination as well when the court insisted that commerce use the untranslated and even said, don't translate it, we don't care, just use it.

[00:02:46] Speaker 04:
The CIT gave them no choice.

[00:02:47] Speaker 04:
No choice.

[00:02:48] Speaker 04:
We completely agree.

[00:02:49] Speaker 04:
And just to back up a little bit on the timing of the whole case, because I think that that goes to the reasonableness of commerce's actions

[00:02:55] Speaker 06:
In that they're really in Fufeng have submitted a full translation and I don't mean when they submitted the document because they alleged that there was an administrative error oversight in non translating it the portion could they is there any opportunity through any of this process where they could have made a motion to supplement the record with such evidence is there any

[00:03:20] Speaker 06:
Anything in the procedures before commerce that allow them to make such a motion?

[00:03:25] Speaker 04:
And I do think the timing is very relevant, Your Honor.

[00:03:28] Speaker 04:
First, this case was initiated back in July.

[00:03:31] Speaker 04:
The first, the Tai Ajinomoto financial statement was placed on the record on October 26, 2012.

[00:03:37] Speaker 04:
Fufang had a rebuttal submission as well.

[00:03:40] Speaker 04:
Fufang had at that time put other financial statements on the record, not the one at issue, not the fermentation financial statement at issue.

[00:03:47] Speaker 04:
Then, commerce makes its preliminary determination using the Ajinomoto Financial Statement.

[00:03:53] Speaker 04:
Fufang then, in a subsequent post-preliminary surrogate value submission on February 22, 2013, which was still timely in all fairness, files this new document.

[00:04:05] Speaker 04:
But three weeks later, case briefs are due.

[00:04:08] Speaker 04:
You know, commerce is under 135... It files a new document?

[00:04:11] Speaker 04:
What new document?

[00:04:11] Speaker 04:
Files the fermentation financial statement.

[00:04:13] Speaker 04:
For the first time, it went on the record on February 22, 2013.

[00:04:18] Speaker 04:
The decision was May 2013.

[00:04:20] Speaker 01:
And so this was, and when you say they submitted the fermentation document, it's the partially translated copy.

[00:04:29] Speaker 04:
Yes.

[00:04:29] Speaker 04:
Yes, Your Honor.

[00:04:29] Speaker 06:
Sorry for not being clear.

[00:04:30] Speaker 06:
Because what I was asking you was, is, you haven't answered my question at all.

[00:04:33] Speaker 06:
I know you really wanted to go through this timing for some reason, but I really want an answer to my question, which is, is there any mechanism within this process which went on for so many years and so much ink was spent

[00:04:46] Speaker 06:
over these two paragraphs of untranslated material, is there any mechanism within this process at any point in time whereby Fufeng could have made a motion to supplement their filing with the translated paragraphs?

[00:05:01] Speaker 04:
I don't believe so in the sense that the record was closed.

[00:05:05] Speaker 04:
That February 22nd, 2013 record when Fufeng put this financial statement on... And they make a motion to reopen the record.

[00:05:12] Speaker 06:
Is there any mechanism for something like that?

[00:05:16] Speaker 04:
I mean, I think that's exactly what they tried to do at the Court of National Trade for all of those remand proceedings, is to say to the court, hey, court, why don't you allow commerce to reopen the record?

[00:05:28] Speaker 04:
Otherwise, I think it's in commerce's discretion whether to reopen the record and solicit this information.

[00:05:35] Speaker 01:
It's our perspective that, you know... I guess what I'm trying to understand, and I think it's the same thing Judge Moore is trying to understand,

[00:05:41] Speaker 01:
Fu Feng is the one that came forward with this document, this fermentation document.

[00:05:47] Speaker 01:
Yes, Your Honor.

[00:05:48] Speaker 01:
And now Fu Feng is telling us, well, it was an oversight that this one piece, relatively small piece of the document didn't get translated.

[00:05:58] Speaker 01:
And so you would think they would be the ones

[00:06:01] Speaker 01:
assuming that it really doesn't have anything material in that content, would be motivated to try to supplement the translation so it would provide a complete one to Commerce so Commerce could fully evaluate the document.

[00:06:17] Speaker 01:
And so what I'm trying to figure out now is to what extent is there anything in the record that shows Fu Feng seeking to supplement the translation to correct what it says was an oversight.

[00:06:30] Speaker 04:
And I believe, Your Honor, and I'm sure they may have a different perspective, but the record was closed.

[00:06:37] Speaker 04:
So in the case briefs, which were just a few weeks after that document came on the record, was when both the other Chinese respondent and CP Calco pointed out in the case brief, hey, this is not a fully translated financial statement, but don't worry, you've got a fully translated financial statement on the record in the form of Ajinomoto.

[00:06:55] Speaker 04:
Commerce said, you're right.

[00:06:57] Speaker 04:
It's not fully translated.

[00:06:58] Speaker 04:
We don't find it reliable.

[00:07:01] Speaker 04:
We're going to use the Ajinomoto financial statement.

[00:07:03] Speaker 04:
And that's what happened.

[00:07:05] Speaker 04:
Then Fufing appeals it and the Court of Financial Trade

[00:07:09] Speaker 04:
Again, even initially isn't saying to Commerce you have to translate it.

[00:07:14] Speaker 06:
Is it your view that Commerce ought to have the authority to reject a non-fully translated version or just anything?

[00:07:23] Speaker 06:
La fecha is septiembre, whatever.

[00:07:27] Speaker 06:
The date isn't translated.

[00:07:30] Speaker 06:
Is it your view that Commerce has, whether is it discretion or the right to choose to reject

[00:07:36] Speaker 06:
any document that is not fully translated or do they have to make some analysis like evolved in the various CIT remands about whether or not the likelihood that the non-translated information is somehow vital to an assessment of the validity of the data?

[00:07:56] Speaker 04:
Well, I think in the context of financial statements for a surrogate value submission, which is what was going on here,

[00:08:04] Speaker 04:
Commerce has a lot of discretion.

[00:08:06] Speaker 04:
They're using the best available information.

[00:08:08] Speaker 04:
They're looking at the other financial statements that are on the record and are fully translated.

[00:08:13] Speaker 04:
And then they're looking at, well, what is missing?

[00:08:16] Speaker 04:
You know, this was a financial note 12, which was an integral part of the financial statement.

[00:08:21] Speaker 04:
Every single page of the financial statement said that.

[00:08:23] Speaker 04:
The notes are an integral part.

[00:08:25] Speaker 04:
Yet somehow this language was missing.

[00:08:27] Speaker 04:
This language informs commerce as to the meaning of the numbers that were in the table.

[00:08:32] Speaker 04:
The numbers are meaningful because that relates to depreciation and goes into the actual surrogate value ratio.

[00:08:38] Speaker 06:
Again, maybe try to listen to my question.

[00:08:41] Speaker 06:
And maybe it's because my questions are too long, so I'll make it really short.

[00:08:44] Speaker 06:
Do you think commerce has the discretion to simply reject it without giving a reason, or do you think commerce has to make an assessment of whether or not the

[00:08:54] Speaker 06:
non translated material appeals appears to have some vital importance because commerce is initially just said we're rejecting it and CIT said not good enough you have to explain why it's vital or you know why you think it might be vital or whatever.

[00:09:09] Speaker 06:
And so I guess my question to you is what should the legal standard be should commerce have the discretion to reject it without giving a reason or should commerce have to articulate a basis for rejecting it based on some assessment of how vital it is by the way I find it hard to imagine that you could assess whether it's vital or not without knowing what it says but none apart from that there does appear to be some

[00:09:32] Speaker 06:
precedent not finding precedent but some precedent in which commerce has made assessments of whether material appears to be vital or not so you see the thing there's there's two different i didn't i promise shorter i didn't get shorter i'm sorry for that longer yeah i know uh but there's like there's two different things we could could possibly do here

[00:09:52] Speaker 06:
Consistent with what your client would wish, but I'm wondering which of those two would you prefer?

[00:09:57] Speaker 06:
Commerce has absolute discretion, unfettered discretion, or Commerce has to determine they think it might be vital before they decide to exclude it?

[00:10:05] Speaker 04:
Well, I mean, Commerce's regulations do require foreign language documents to be fully translated.

[00:10:12] Speaker 04:
So at the risk of coming back a year later and arguing something differently to you, I do think Commerce does have discretion.

[00:10:18] Speaker 04:
But I do think there is something unique about the financial statements, which again is a surrogate value.

[00:10:24] Speaker 04:
Fufeng put a handful of financial statements on the record.

[00:10:27] Speaker 04:
A number of them were fully translated.

[00:10:29] Speaker 01:
So in this particular case, through all the various remands, we do have analysis from Commerce explaining why it believed that the missing materials from the fermentation document are relevant to the whole question of depreciation, which then is going to impact the surrogate ratio calculations.

[00:10:53] Speaker 05:
But today, because it was just one short paragraph.

[00:10:56] Speaker 05:
According to what you tell us.

[00:11:01] Speaker 04:
It's two paragraphs that were untranslated, Your Honor.

[00:11:03] Speaker 04:
We find that important.

[00:11:04] Speaker 01:
And then in commerce, in provided analysis explaining why it believed it needed that information translated in order to fully understand the scope and meaning of the document.

[00:11:17] Speaker 01:
But we're going to hear from the other side pretty soon saying, well, that's still not good enough.

[00:11:24] Speaker 01:
You don't just look at a document, conclude that there's a flaw in that document, and then knock out the document.

[00:11:31] Speaker 01:
Because what's really needed is a comparative analysis.

[00:11:34] Speaker 01:
What we have here are two competing documents, defective in different ways.

[00:11:41] Speaker 01:
We know about the Ajinomoto document that is infected with

[00:11:47] Speaker 01:
subsidies and so that in its own way has a flaw in it now we have this document the fermentation document that has a chunk of it that isn't translated so we don't know what it says with respect to depreciation okay assuming that

[00:12:06] Speaker 01:
I think what the Trade Court wanted is for Commerce to explain and articulate why the Ajunamoto flawed document under these circumstances is the better information available than this document with the incomplete translation.

[00:12:25] Speaker 01:
And so to what extent do you think, number one, Commerce actually did that

[00:12:32] Speaker 01:
And number two, whether commerce needs to do that versus just blindly without looking at the Jinamoto document say to itself, oh, there's a missing paragraph or two here.

[00:12:46] Speaker 01:
I'm knocking out this document completely.

[00:12:49] Speaker 01:
So I'm sorry for my long question, but it's really two questions.

[00:12:54] Speaker 01:
One, did commerce do what the trade court wanted it to do?

[00:12:57] Speaker 01:
And if so, where is that?

[00:12:59] Speaker 01:
Okay, it's actually three questions.

[00:13:01] Speaker 01:
And then the final question is, what is it that they actually need to do?

[00:13:10] Speaker 01:
Can they actually ignore this weighing process?

[00:13:13] Speaker 04:
Right.

[00:13:14] Speaker 04:
Well, first I think the court, I think ultimately we're most focused on that third remand, the court's third decision where they remanded it back.

[00:13:23] Speaker 04:
And they did, the court did say something about the comparison, but then the court gave Commerce an alternative where it said, or you could just tell us why you think this is vital, why this missing information was vital.

[00:13:36] Speaker 04:
And that is exactly what Commerce did in its third remand determination.

[00:13:41] Speaker 04:
So it's my position that yes, commerce did do what they were supposed to do.

[00:13:46] Speaker 04:
Again, we're in a very loose discretionary standard for commerce, the best available information for a surrogate value.

[00:13:54] Speaker 01:
Could you point me to the page of the trade court opinion that said, in the alternative, do an apples to apples comparison, or in the alternative, if you elect not to do an apples to apples comparison, please just explain to me in some detail why the missing information is so vital in your opinion.

[00:14:14] Speaker 04:
Sure.

[00:14:14] Speaker 04:
Appendix 85.

[00:14:16] Speaker 04:
at the top of the page.

[00:14:18] Speaker 04:
The Court, well, it starts at the bottom of the page.

[00:14:21] Speaker 04:
The Court again remands Commerce's selection of surrogate financial data.

[00:14:25] Speaker 04:
Specifically, Commerce should not select the Taiyajinamoto Statement unless it first compares the Taiyajinamoto and Tai Fermentation Financial Statements side by side in an even-handed manner.

[00:14:34] Speaker 01:
I'm sorry, you said 85?

[00:14:36] Speaker 04:
Yeah, 85, starting on 84, bottom of 84.

[00:14:40] Speaker 01:
Okay, you're 84.

[00:14:41] Speaker 04:
Sorry.

[00:14:42] Speaker 04:
Examining, evaluating the relative strengths and weaknesses of each.

[00:14:46] Speaker 04:
And then skipping the parenthetical, this is what I was saying.

[00:14:50] Speaker 04:
In the alternative, Commerce can reject the Thai fermentation statements after making a reasoned finding that the two untranslated paragraphs in footnote 12 are vital to the department's analysis of the data.

[00:15:03] Speaker 04:
To be clear, the court will not accept the truism that any missing information may be vital.

[00:15:09] Speaker 04:
Rather, Commerce must specifically discuss what is missing from the Thai fermentation statements and how the fact

[00:15:14] Speaker 04:
of the missing information in PISA department's calculations, which I believe Commerce then spent three plus pages of their remand determination explaining exactly that.

[00:15:23] Speaker 04:
Depreciation is important.

[00:15:25] Speaker 04:
We can see on the face of these documents there's a narrative that informs these numbers, this schedule that's included in the depreciation.

[00:15:33] Speaker 04:
So, I mean, again, we were completely shocked at the fourth judgment by the court because we felt that Commerce had completely complied with the court's order here in the alternative.

[00:15:47] Speaker 05:
Okay, let's hear from the other side.

[00:15:49] Speaker 04:
Okay, can I just briefly touch on the xanthamonus compestris production strain, which is the second issue, which is that we think that that should be valued as a factor of production.

[00:16:02] Speaker 04:
Commerce valued it as an asset instead of an input into the product.

[00:16:07] Speaker 04:
But xanthamgon cannot be made without this production strain, xanthamonus compestris.

[00:16:14] Speaker 04:
So we think the statute requires

[00:16:16] Speaker 04:
commerce to value all the factors of production that go into the subject merchandise and that it should have valued that factor.

[00:16:25] Speaker 04:
Okay.

[00:16:26] Speaker 04:
Thank you.

[00:16:29] Speaker 05:
Thank you.

[00:16:29] Speaker 05:
Okay, Mr. Cohn.

[00:16:40] Speaker 02:
May it please the court?

[00:16:41] Speaker 02:
In answer to Judge Moore's question, yes, of course we translated those ten lines and we didn't find anything that would in any way impeach the reliability of the fermentation.

[00:16:56] Speaker 01:
Did you inform Commerce about the content of the missing paragraphs?

[00:17:01] Speaker 02:
What we did your honor as my colleague no well at that point the record was closed just to go back to timing because I do agree with my colleague that it's important when we filed the Was the last day and the record was open when we filed it Then it was brought to our attention after the record closed during briefing not by Kelko by the way It was by the other respondent who wanted Malaysian financial

[00:17:24] Speaker 02:
As soon as it was brought to our attention, we translated it, we realized there was no error, and we challenged it, the CIT.

[00:17:30] Speaker 02:
And all throughout our comments on the briefing and all the remand comments, we have whole headings devoted to begging commerce to do the right thing and either translate it itself or let us do so.

[00:17:42] Speaker 02:
They've done both of those approaches.

[00:17:43] Speaker 01:
Where's that in the record?

[00:17:44] Speaker 02:
That's in our, if you look at our remand comments, we have entire headings devoted to

[00:17:57] Speaker 01:
So where does it, you know, plead with commerce to please allow you to submit a translation of those two paragraphs?

[00:18:11] Speaker 02:
I'm sorry, which volume is that?

[00:18:22] Speaker 01:
It was a jumbled appendix.

[00:18:24] Speaker 01:
Who created this appendix?

[00:18:28] Speaker 02:
I beg them to put the numbers in sequential order.

[00:18:31] Speaker 06:
Not only are they not sequential, they go from 4,000 to 12,000, but the 12,000s are not even sequential because 12,000s that come after earlier 12,000s appear before it.

[00:18:41] Speaker 06:
It's absurd.

[00:18:43] Speaker 01:
It was a disaster.

[00:18:44] Speaker 01:
Whoever did this, don't do it again.

[00:18:45] Speaker 01:
It looks like a monkey put this together.

[00:18:49] Speaker 05:
A robot, do you think?

[00:18:50] Speaker 05:
A real monkey or a cyclone?

[00:18:53] Speaker 02:
No, a real monkey.

[00:18:55] Speaker 02:
We asked commerce to translate it because this court... I'm sorry, what page?

[00:19:02] Speaker 00:
13002.

[00:19:04] Speaker 00:
Where?

[00:19:04] Speaker 00:
13002.

[00:19:05] Speaker 00:
And where might that be?

[00:19:10] Speaker 01:
This joint appendix is a jumbled mess.

[00:19:13] Speaker 06:
Where is it?

[00:19:14] Speaker 06:
What volumes?

[00:19:16] Speaker 06:
1302?

[00:19:18] Speaker 06:
Is that it?

[00:19:19] Speaker 06:
Is that what you told me to look at?

[00:19:21] Speaker 01:
Yes.

[00:19:21] Speaker 06:
Okay, so I think it's in volume 3, Ray, about this far.

[00:19:26] Speaker 06:
About this far.

[00:19:27] Speaker 01:
Towards the end?

[00:19:34] Speaker 01:
Yeah.

[00:19:35] Speaker 01:
I found 1308, but the page before that is 8320.

[00:19:45] Speaker 02:
Why didn't you request to provide the translation yourself?

[00:19:58] Speaker 01:
Why are you asking the Trade Court

[00:20:00] Speaker 02:
To order commerce to translate commerce is a very, very strict about keeping records closed.

[00:20:07] Speaker 02:
And in fact, they reopen the record on remand.

[00:20:09] Speaker 02:
They issued us a supplement.

[00:20:11] Speaker 01:
Wait, wait, wait, wait, wait.

[00:20:12] Speaker 01:
You're the one that has an interest in having the fufeng document considered.

[00:20:18] Speaker 01:
And so this is a problem of your making.

[00:20:21] Speaker 01:
problem of your making and so therefore you did have some obligation to try to correct your erroneously translated document erroneous in the sense that you failed to translate the complete document so if i had been in your shoes and truly believe that those two non-translated paragraphs really are not material

[00:20:44] Speaker 01:
I would have done everything I could have to try to present the translated paragraphs to commerce.

[00:20:51] Speaker 01:
Instead, you're asking daddy to order mommy to do your work for you, and I don't really understand why you would pose it in that manner.

[00:21:01] Speaker 02:
We felt that was sufficient that because the record was closed that we would require either a court order or commerce on its own volition.

[00:21:10] Speaker 02:
And when they took the time to reopen the record to ask us more information that would have been the perfect opportunity to do this simple task or they could have done it themselves as they've done in subsequent proceedings.

[00:21:22] Speaker 01:
I don't understand why you keep blaming other people for

[00:21:26] Speaker 01:
your failure to do your own homework.

[00:21:29] Speaker 01:
Why didn't you try to volunteer to do your own homework?

[00:21:32] Speaker 01:
And you volunteered to try to present the translation.

[00:21:35] Speaker 01:
You could have easily just filed a motion and then had the translated document as an attachment and say, it's right here.

[00:21:43] Speaker 01:
I've done what I was supposed to do in the first instance, didn't, but here it is now.

[00:21:49] Speaker 01:
Now you should be rest assured that there aren't any problems with this document.

[00:21:52] Speaker 02:
Hindsight is 2020, of course.

[00:21:54] Speaker 02:
We would rather have had in the first place to perfectly translate.

[00:21:59] Speaker 01:
Logic is also pretty straightforward, too.

[00:22:04] Speaker 02:
But we did cue this up.

[00:22:05] Speaker 02:
I mean, we appealed commerce's denial.

[00:22:08] Speaker 02:
I mean, the fact that we didn't say, mother, may I, shouldn't invalidate.

[00:22:11] Speaker 06:
No, you didn't ask to do it at all.

[00:22:13] Speaker 06:
It's not like you didn't say please.

[00:22:14] Speaker 06:
You didn't even make the request.

[00:22:16] Speaker 06:
How do I know you want me to pass the salt when you never mentioned the salt?

[00:22:20] Speaker 02:
We made it repeatedly to the court and also to commerce in draft remand.

[00:22:24] Speaker 06:
Wait, you asked the, I'm sorry, because the point, what you pointed us to was you telling the court that it should order commerce to do the translation.

[00:22:31] Speaker 06:
Where did you ask the court to allow you to submit the translation?

[00:22:36] Speaker 02:
Well, you know, in earlier remands we had,

[00:22:41] Speaker 02:
Throughout our remand comments, we had a consistent theme was that this minor clerical error could be simply cured and that we could, that we should, that we did ask, we did lodge our objection.

[00:22:57] Speaker 02:
Look, we made a mistake, but the consequences have been severely disproportionate.

[00:23:02] Speaker 02:
As a result of these 10 lines, we've had to participate in four administrative reviews and this court in NTN said that

[00:23:10] Speaker 02:
you know clerical errors should be fixed and that there shouldn't be commerce can't require perfection and that perfection applies not only to the original submission but maybe the fact that we should have chewed it up better but we crystallized our rights we appealed this issue to the court just to be clear there there's nothing in the joint appendix that shows that you volunteered to try to fix this problem of your own making by providing the missing translation is that fair to say

[00:23:40] Speaker 01:
The best you have is asking the trade court to order commerce to fill in your gaps.

[00:23:59] Speaker 05:
Let me take a look.

[00:24:00] Speaker 05:
You may not find it now, but if there is something there,

[00:24:06] Speaker 02:
We will.

[00:24:06] Speaker 05:
We will supplement our submissions and we appreciate that.

[00:24:10] Speaker 02:
We appreciate that.

[00:24:11] Speaker 02:
We will do that today, Your Honor.

[00:24:13] Speaker 02:
So just to really put a fine point on it,

[00:24:18] Speaker 02:
There was nothing in those two paragraphs that could have invalidated Congress's ability to calculate ratios.

[00:24:25] Speaker 02:
How do we know?

[00:24:26] Speaker 05:
I mean, that's your problem, isn't it?

[00:24:28] Speaker 05:
Nobody knows what's in those untranslated paragraphs.

[00:24:31] Speaker 02:
Well, the question is whether that information would be vital to calculate the ratios.

[00:24:38] Speaker 06:
Well, that's not clearly the question.

[00:24:40] Speaker 06:
I mean, yes, that's what CIT got to in his second or third remand.

[00:24:45] Speaker 06:
But Commerce asserted initially, and the domestic industry asserts as I understand it, that Commerce's regulation gives it absolute discretion to reject documents not fully translated.

[00:24:58] Speaker 06:
So nothing in that regulation says unless we determine it's vital.

[00:25:01] Speaker 06:
So I mean, I understand that somehow this vital

[00:25:05] Speaker 06:
notion has been imported into the analysis, but I'm not sure it even belongs there.

[00:25:09] Speaker 02:
Well, this all goes down to Judge Chen's question and the best available information standard, and it requires a meaningful analysis.

[00:25:15] Speaker 02:
Commerce can't say this is missing one line or 10 lines, and therefore we are automatically going to reject it.

[00:25:21] Speaker 02:
They need to plumb the implications of the competing datasets, and here they fail to do it.

[00:25:25] Speaker 06:
But Judge Newman's question is an excellent one.

[00:25:28] Speaker 06:
commerce supposed to know whether untranslated material is or is not vital.

[00:25:34] Speaker 06:
It's two paragraphs, 10 sentences in a financial statement.

[00:25:38] Speaker 06:
Maybe those 10 sentences are, oh, and by the way, I mean, we only did X, or we got subsidies, or whatever.

[00:25:45] Speaker 06:
Who knows what those 10 sentences are?

[00:25:47] Speaker 06:
And so I think there's Newman's point, which is how can commerce make a determination of vital, a perfect determination of vital, when it doesn't have the translated part?

[00:25:57] Speaker 02:
Well, I would say that there's nothing within the statement that casts doubt on those 10 lines.

[00:26:03] Speaker 02:
In fact, everything goes the other way.

[00:26:05] Speaker 02:
The depreciation schedule on note 12 is fully translated.

[00:26:09] Speaker 02:
And the depreciation methodology notes are fully translated.

[00:26:14] Speaker 02:
There's three of them and they lay out in detail.

[00:26:17] Speaker 02:
So we know the numbers from the schedule.

[00:26:20] Speaker 05:
It looks like a mistake.

[00:26:22] Speaker 05:
We made a mistake.

[00:26:23] Speaker 05:
It looks like a mistake.

[00:26:24] Speaker 05:
However,

[00:26:26] Speaker 05:
not remedying the mistake to say that therefore all of these inferences and conclusions need to be drawn about missing subject matter, I think that that goes too far.

[00:26:39] Speaker 02:
I would agree.

[00:26:40] Speaker 02:
This is an adverse inference that commerce is making against us because of a clerical error.

[00:26:45] Speaker 02:
They have nothing in the record.

[00:26:47] Speaker 01:
And let me just answer this question about... I mean, we have to assume it's a clerical error, though.

[00:26:52] Speaker 01:
We don't know even that.

[00:26:54] Speaker 01:
And we don't know, you know, I mean, Commerce, they have to police these proceedings the best they can, and they have to try to take in and rely on the information they get from all these interested parties.

[00:27:09] Speaker 01:
And if the interested parties don't do what they're supposed to do, then it makes Commerce's job that much tougher, and it's trying to

[00:27:17] Speaker 01:
to incentivize the parties to give them the most complete information possible, not to incentivize them to provide incomplete information and then say, oh, these are just minor clerical mistakes.

[00:27:36] Speaker 02:
Right, but there has to be some reasonableness.

[00:27:38] Speaker 02:
First off, nobody's ever alleged that this was anything other than an unintentional oversight.

[00:27:44] Speaker 02:
For commerce to now say, well, we're going to treat this as if it invalidates all of your data, we think that that goes way too far, especially when the consequences here are keeping us under order, whereas otherwise, using a perfectly valid financial statement... It's not a perfect or a valid financial statement, right?

[00:28:03] Speaker 02:
Well, it's certainly valid for calculating ratios, which is...

[00:28:08] Speaker 06:
The CIT ordered Commerce to go back and figure out, and I don't know what remand this is because there were so many, but they ordered them to go back and figure out whether it was vital.

[00:28:15] Speaker 06:
So now I'm looking at 8280 and 8281 of the appendix.

[00:28:21] Speaker 06:
It's in volume three, near the end.

[00:28:24] Speaker 06:
And here is where Commerce explains why I understand this to be a fact finding of sorts.

[00:28:31] Speaker 06:
that they are properly exercising their discretion to conclude that the document should not be considered.

[00:28:41] Speaker 06:
They say, we find that footnotes regarding fixed assets are a key component of a company's financial statements.

[00:28:48] Speaker 06:
That the information set forth in the company's fixed asset footnote is vital

[00:28:52] Speaker 06:
to our surrogate ratio analysis for several reasons and they go through a bunch of reasons of why such information could be vital and important and significant impact on the surrogate financial ratios that are otherwise disclosed so I don't understand I feel like now

[00:29:11] Speaker 06:
What's really happened is the Court of International Trade then said, okay, commerce has done what I told it to do, which is determine whether or not this is vital and they determined it's absolutely vital and they gave a lot of reasons.

[00:29:23] Speaker 06:
I feel like at that point, the CIT needed to evaluate or assess that under an incredibly deferential standard, which I didn't see it doing.

[00:29:33] Speaker 02:
Well, let me just clarify the court's order, because this is what my colleague was talking about.

[00:29:36] Speaker 02:
Page 85.

[00:29:37] Speaker 02:
They do give commerce these options.

[00:29:39] Speaker 06:
However, if you look at... That's later.

[00:29:41] Speaker 06:
That's the last one, right?

[00:29:43] Speaker 02:
No, no, no.

[00:29:44] Speaker 02:
That was the one that led to the remand that you were just talking about.

[00:29:48] Speaker 02:
Okay, that's what I was wondering.

[00:29:49] Speaker 02:
If you look at page 85 in the appendix... Hold on, I've got to find it.

[00:29:56] Speaker 02:
I'm sorry, what page?

[00:29:56] Speaker 02:
85.

[00:29:58] Speaker 05:
OK.

[00:29:59] Speaker 02:
Look at the third paragraph that said ordered.

[00:30:01] Speaker 02:
You'll see Judge Goldberg is giving two distinct options.

[00:30:05] Speaker 02:
Commerce picked the latter.

[00:30:07] Speaker 02:
The latter was making a fact-sensitive finding that the fermentation statements are missing vital information.

[00:30:13] Speaker 02:
What he got back from Commerce was generic concerns about depreciation, nothing about why

[00:30:21] Speaker 02:
the numbers were impute.

[00:30:24] Speaker 06:
Well, because we don't know, because the footnote attached to the numbers wasn't translated.

[00:30:28] Speaker 06:
So that's the whole problem.

[00:30:30] Speaker 06:
It's like you want to hold commerce to a standard for assessing vitality that would require them to know what the missing information says.

[00:30:37] Speaker 02:
Well, you know, they...

[00:30:40] Speaker 02:
if they didn't translate and they were the ones that refute we argued that that was an abusive discretion that was consistent throughout then they have to make a fact sensitive finding the best available information center doesn't let them say we're automatically going to disqualify based on these you know 10 lines especially when there

[00:30:58] Speaker 06:
Actually, they did initially say we're automatically disqualified based on these 10 lines, but by this remand, they were saying we decide these 10 lines are vital to our ability to rely on this data and they explain why.

[00:31:10] Speaker 02:
Based on generic non-record depreciation concerns.

[00:31:14] Speaker 06:
Because nobody knows what those two paragraphs say.

[00:31:17] Speaker 06:
They can't do it with specificity.

[00:31:18] Speaker 02:
But what they didn't do is look at the Agenimoto statement.

[00:31:21] Speaker 02:
There's no doubt that it's impugned by subsidy.

[00:31:23] Speaker 02:
If you look at note 25, 13% of their fiscal year sales income was attributable to subsidized export promotion.

[00:31:30] Speaker 06:
So commerce decided that that was somehow better available information.

[00:31:36] Speaker 06:
the unknown better the devil you know kind of thing I guess and and that is a very discretionary choice by them I just don't understand how courts are getting in the business of ordering these kinds of remand they have discretion to compare to do the complex you know meaningful analysis they don't have discretion

[00:31:52] Speaker 02:
to completely say, well, we're not going to consider the Agenomoto flaw.

[00:31:57] Speaker 02:
Where did they talk about these malignant subsidies that distorted the Agenomoto data?

[00:32:02] Speaker 02:
That's nowhere on the record.

[00:32:03] Speaker 02:
They were fixated.

[00:32:04] Speaker 02:
They had prejudged that they were going to use that statement to keep us under order.

[00:32:08] Speaker 02:
The CIT picked up on that.

[00:32:11] Speaker 02:
And we think, rightfully so, as the CIT and this court often do.

[00:32:16] Speaker 06:
So to be clear, you're saying there's no bad faith on your client's part, but there's absolutely bad faith on commerce's part.

[00:32:21] Speaker 02:
We think there was prejudgment and that they were unwilling to meaningfully compare the Ajinomoto distortion vis-à-vis these ten lines.

[00:32:30] Speaker 01:
That they never did.

[00:32:31] Speaker 01:
In your view, what should commerce have done with respect to analyzing Ajinomoto that it did not do?

[00:32:39] Speaker 01:
I mean, I see at 8244, at least in one of the remands, commerce saying,

[00:32:46] Speaker 01:
At the bottom paragraph, in contrast to the fermentation financial statements, although they show evidence of counter-available subsidies, Ajinomoto's financial statements are complete and reliable and all parties to this proceeding have been afforded the opportunity to comment on their full content.

[00:33:03] Speaker 01:
Furthermore, because they are complete, there is no risk that a party to this proceeding has withheld or omitted information from Ajinomoto's financial statements.

[00:33:10] Speaker 01:
So that's commerce providing its commentary on Ajinomoto.

[00:33:16] Speaker 01:
What more should they have done?

[00:33:18] Speaker 02:
They should have plumbed the implications.

[00:33:20] Speaker 01:
What does it mean to be sensitive?

[00:33:22] Speaker 01:
Can you give me a little more than that?

[00:33:23] Speaker 02:
Plumb the implications.

[00:33:24] Speaker 02:
What does it mean that there was 13% of their sales income was attributable to these Thai programs that are per se counter-available?

[00:33:31] Speaker 02:
And that commerce routinely rejects financials on this basis, as this court affirmed recently in China Kingdom.

[00:33:40] Speaker 02:
So for them to do what they've done here, which is to just really give one line and say, well, it's complete.

[00:33:47] Speaker 02:
And yeah, even though it has subsidies, move on.

[00:33:49] Speaker 02:
There was no meaningful comparison of what it meant to be subsidized and why that data was subsidized.

[00:33:55] Speaker 02:
At core, what commerce did wrong was to accept hypothetically

[00:34:01] Speaker 02:
to say that known distorted data was preferable to hypothetically flawed.

[00:34:07] Speaker 02:
They said those 10 lines have got to conceal an inference without any record basis worse than this malignant subsidy that metastasizes the financial statement and renders the Junimoto statement unusable for ratio calculation.

[00:34:23] Speaker 05:
Let's hear from your colleague.

[00:34:25] Speaker 02:
Thank you, Your Honors.

[00:34:34] Speaker 05:
мистер Кристидняк, у вас есть новые проблемы в защиту?

[00:34:39] Speaker 03:
да мистер, Соединение Соединение только берет позицию в связи с оформлением экскомпестрос вещества.

[00:34:43] Speaker 03:
Почему?

[00:34:43] Speaker 03:
Почему?

[00:34:43] Speaker 06:
Почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему

[00:35:04] Speaker 03:
The Department of Justice did not receive authority to appeal that issue, and so we have not taken a position on it today.

[00:35:10] Speaker 03:
And so we've only taken a position with regard to the valuation of the ex-compassor's bacterial strain.

[00:35:14] Speaker 06:
Am I to infer from that that the government no longer believes it was under protest, or would you have corrected that if you believed that that was an error?

[00:35:24] Speaker 03:
Unfortunately, Your Honor, I believe that would get into the internal deliberations within Department of Justice and our decisions, whether or not to seek appeal.

[00:35:31] Speaker 03:
As I'm sure the Corps is aware, there's many stages required to seek an affirmative appeal.

[00:35:35] Speaker 03:
And I cannot speak to that, unfortunately, because it does get into, I believe, privileged internal deliberations within the Department of Justice.

[00:35:41] Speaker 06:
I've just never seen a CIT judge strong arm commerce as much as I saw it here.

[00:35:49] Speaker 06:
And I was really surprised that the government

[00:35:53] Speaker 06:
didn't suggest as much in its brief and defend commerce's discretion.

[00:36:01] Speaker 06:
And I got to tell you, I really think the CIT judge exceeded his authority and took away significant discretion from commerce.

[00:36:10] Speaker 06:
And so the only thing stopping me from saying that is a concern about why in the world the government doesn't agree necessarily.

[00:36:19] Speaker 03:
It's not that we agree or disagree.

[00:36:21] Speaker 03:
As the court noted, we did follow the court's order under protest and we do not take a position at this stage.

[00:36:27] Speaker 03:
We did not receive authority to appeal it and so unfortunately I cannot take a position on that today, Your Honor.

[00:36:32] Speaker 01:
So hypothetically, if we were to reverse the trade court and say we agree with commerce's initial determination to use the Ajinomoto statement over the fermentation statement,

[00:36:46] Speaker 01:
commerce wouldn't be displeased with that?

[00:36:50] Speaker 01:
It wouldn't somehow create some kind of confusion inside of commerce operations?

[00:36:58] Speaker 03:
Obviously, the commerce would act in accordance with any order issued from this court.

[00:37:04] Speaker 01:
I just want to make sure that if we were to do that, commerce isn't already on some new program internally, where it has abandoned

[00:37:14] Speaker 01:
its earlier practice that it used initially here and then would have to unspool that new internal approach given a reversal here.

[00:37:28] Speaker 03:
To my knowledge, there's not necessarily been a shift in the way it's practiced there.

[00:37:33] Speaker 03:
There's obviously discussion about the statute with regards to requiring untranslated statements, etc.

[00:37:39] Speaker 03:
this morning by the attorneys that spoke before me.

[00:37:43] Speaker 03:
To my knowledge, obviously it was taken under protest, but we would obviously comply with any order that was issued out of this court.

[00:37:49] Speaker 01:
So if a party submits a partially translated document today in an investigation, what does Commerce do?

[00:38:02] Speaker 03:
Again, Your Honor, we did not take a position on that issue here.

[00:38:06] Speaker 01:
I'm not asking you to take a position here.

[00:38:08] Speaker 01:
I want to know what Commerce's practice is here, and that's what I need from you.

[00:38:12] Speaker 03:
Certainly, Your Honor.

[00:38:13] Speaker 03:
My understanding would be that they would comply with the regulation and insist on a fully translated document.

[00:38:19] Speaker 01:
Well, what if the record had technically closed?

[00:38:22] Speaker 01:
Would they say, well, the record is technically closed and when I review the current record, I see only partially translated document here, so therefore, I'm just going to strike it because it's not fully translated.

[00:38:40] Speaker 01:
Or would commerce say,

[00:38:42] Speaker 01:
Hey, you only translated 90% of this.

[00:38:45] Speaker 01:
I need the other 10% because I think it's important.

[00:38:48] Speaker 01:
Will you please give me a fully translated document?

[00:38:51] Speaker 01:
Which is the practice of commerce?

[00:38:55] Speaker 03:
Again, I hope you understand my hesitation just because we've not taken a position on this case.

[00:39:00] Speaker 01:
If you say you don't know because you're just a little old Justice Department attorney, that's fine.

[00:39:06] Speaker 01:
But I want to know if you know.

[00:39:08] Speaker 01:
And if you do know, I'd like you to tell me.

[00:39:11] Speaker 03:
Your Honor, I am not personally aware of what their current practice is, other than obviously the regulation does require fully translated invoices to be submitted.

[00:39:20] Speaker 03:
So if I may speak briefly to the issue of the evaluation of the ex-compesterous bacterial strain.

[00:39:26] Speaker 03:
The plaintiff of Pelley essentially argues that the Department of Commerce erred in not assigning a separate value to that bacterial strain because it's a factor of production.

[00:39:36] Speaker 03:
And so by jumping straight to this conclusion that the

[00:39:39] Speaker 03:
bacterial strain is a factor of production their argument would follow then yes of course then you have to assign a value to that factor of production that the statute does provide for that however that skips the first part of the analysis which is also contemplated by 1677b which is where commerce looks at all of the information available to it and determines whether or not something is a factor of production or is to be included within the

[00:40:03] Speaker 03:
essentially overhead expenses.

[00:40:05] Speaker 03:
And so with the bacterial strain that we have here, it's a strain that the right to use was purchased in 2002 by Fufeng, and that was prior to the period of review.

[00:40:17] Speaker 03:
It's uncontested that the bacterial strain is self-replicating, which means that the bacteria stays the same throughout its lifeline.

[00:40:23] Speaker 03:
Even though it's a license, not an actual ownership of that bacterial strain, there's no ongoing fees associated with the payment for the bacterial strain.

[00:40:34] Speaker 03:
It's not that commerce decided that there was no value associated with that bacterial strain, but rather that that value was already reflected in the surrogate invoices because the Thai manufacturers similarly produce additives that require the use of a bacterial strain.

[00:40:48] Speaker 03:
So that would be included in the overhead amounts for those Thai producers.

[00:40:52] Speaker 05:
Thank you.

[00:40:52] Speaker 03:
Thank you, Your Honor.

[00:40:57] Speaker 05:
Okay, Ms.

[00:40:57] Speaker 05:
Noonan, you have your rebuttal.

[00:41:00] Speaker 04:
Thank you, Your Honor.

[00:41:00] Speaker 04:
Nancy Noonan for the record.

[00:41:02] Speaker 04:
Just to revisit the financial statement issue one last time.

[00:41:07] Speaker 04:
It is up to the parties.

[00:41:08] Speaker 04:
The parties are responsible for creating the adequate record.

[00:41:12] Speaker 04:
Again, I hope I'm finally making myself clear about how the timeline is important.

[00:41:17] Speaker 04:
As soon as one of these cases against China is filed and initiated,

[00:41:22] Speaker 04:
Parties are on notice that they need to put surrogate values on the record for these financial ratios.

[00:41:28] Speaker 04:
So as of July, the initiation, everyone involved in the case knew that they had a window of time to get these documents on the record.

[00:41:37] Speaker 04:
Fufeng did not put that financial statement on the record until end of February, a post-preliminary surrogate value submission.

[00:41:44] Speaker 04:
Again, totally still timely, but my point is, I don't know why it didn't go on the record till that late,

[00:41:50] Speaker 04:
Errors happen.

[00:41:52] Speaker 04:
Perhaps if it had gotten on earlier, somebody would have noticed it sooner and the record still would have been open for them to fix it, but that's not how it played out.

[00:42:00] Speaker 04:
And again, it's up to the parties to create an adequate record.

[00:42:05] Speaker 04:
Two, I do take issue with my colleague's statement that the Ajinomoto financial statements were distorted.

[00:42:12] Speaker 04:
There is no finding of distortion.

[00:42:14] Speaker 04:
Yes, there's a finding that there were subsidies,

[00:42:16] Speaker 04:
But commerce has said, and we don't disagree at all, that commerce has a normal practice of not using financial statements with subsidies when there is other reliable information on the record.

[00:42:27] Speaker 04:
Here, commerce in its discretion said that was not the case.

[00:42:30] Speaker 04:
So yes, there are subsidies, but there's no evidence of this distortion.

[00:42:35] Speaker 04:
Finally, on the valuation of the Xanthomonas Compestris, again, the statute requires that all of the factors production going into the subject merchandise be valued.

[00:42:46] Speaker 04:
Xanthomonas compestris goes into it.

[00:42:49] Speaker 04:
There is no xanthine gum without this bacterial strain.

[00:42:53] Speaker 04:
The fact that it was purchased in 2002 is completely irrelevant.

[00:42:57] Speaker 04:
We are in a non-market economy case where factors of production need to be valued.

[00:43:03] Speaker 04:
If there's no questions, thank you for your time.

[00:43:07] Speaker 05:
We're fine.

[00:43:07] Speaker 05:
Thank you.

[00:43:08] Speaker 05:
Thank you all.

[00:43:09] Speaker 05:
The case is taken under submission.

[00:43:11] Speaker 05:
And that concludes our session for today.