[00:00:00] Speaker 01:
Okay.

[00:00:00] Speaker 01:
Our next case is good luck.

[00:00:02] Speaker 01:
India limited versus as we've done, uh, tubular products, case number 20 dash 2017.

[00:00:08] Speaker 01:
Mr. Roberta, uh, how much time did you reserve for rebuttal?

[00:00:14] Speaker 04:
Uh, your honor, I reserved four minutes for rebuttal.

[00:00:18] Speaker 01:
Okay.

[00:00:18] Speaker 01:
You may begin please.

[00:00:20] Speaker 04:
Thank you, your honor.

[00:00:22] Speaker 04:
Good morning.

[00:00:22] Speaker 04:
It may have pleased the court.

[00:00:24] Speaker 04:
The court of international trade aired and substituting its judgment for that of the commerce department.

[00:00:29] Speaker 04:
As to whether the sales and cost data Goodluck attempted to submit at verification after the regulatory deadline had expired was new factual information and not merely a minor correction of existing record data.

[00:00:42] Speaker 04:
Commerce concluded that the late submitted data by Goodluck constituted significant new factual information under its regulations at 19 CFR.

[00:00:51] Speaker 01:
Council, the Court of International Trade found that

[00:00:55] Speaker 01:
The error was such that it only required a mathematical calculation to recalculate.

[00:01:03] Speaker 01:
Was the court incorrect in that and so why?

[00:01:07] Speaker 04:
Yes, Your Honor, the court was incorrect in that.

[00:01:10] Speaker 04:
There's no evidence that what actually happened when the court ordered Commerce to accept the good luck's information that it only took an easy mathematical fix

[00:01:24] Speaker 04:
What happened was that Goodluck had to reallocate and recalculate its cost of production for 37 control numbers covering 600 home market sales.

[00:01:40] Speaker 04:
It had to, that wasn't just a simple mathematical formula where it pressed a button and it changed all the numbers simply by changing the codes.

[00:01:51] Speaker 04:
Goodluck actually had to

[00:01:52] Speaker 04:
recalculate all of those costs of production.

[00:01:57] Speaker 04:
So the court below is wrong in that.

[00:02:01] Speaker 04:
And there's no evidence.

[00:02:02] Speaker 03:
In fact, if you look at what... When you say recalculate, is that mathematical calculation?

[00:02:11] Speaker 04:
Well, I mean, all dumping margins are a mathematical calculation, Your Honor, but no, it took more than simply applying a formula.

[00:02:19] Speaker 03:
Excuse me, was that the presiding judge's question?

[00:02:25] Speaker 04:
I'm sorry, Your Honor.

[00:02:26] Speaker 03:
I thought the presiding judge asked you.

[00:02:31] Speaker 03:
He said there wasn't just only mathematical calculation involved here.

[00:02:38] Speaker 04:
No, there wasn't just mathematical calculation.

[00:02:40] Speaker 04:
They had to do a reallocation.

[00:02:43] Speaker 03:
Excuse me.

[00:02:44] Speaker 03:
And I asked you whether or not the changes weren't made as a matter of mathematical calculation, and you said yes.

[00:02:52] Speaker 04:
So.

[00:02:53] Speaker 03:
Am I?

[00:02:54] Speaker 03:
Yes.

[00:02:54] Speaker 03:
What am I missing here?

[00:02:57] Speaker 04:
OK, so it was extent.

[00:02:58] Speaker 04:
Let me clarify, Your Honor, that it was extensive mathematical calculation involved in resubmitting the cost.

[00:03:07] Speaker 03:
Extensive calculation, that's the cascading effect.

[00:03:11] Speaker 04:
Well, the cascading effect could be several things, Your Honor.

[00:03:14] Speaker 04:
So just because when you change, for example, change the

[00:03:18] Speaker 04:
product codes, you may not have to change costs as they did in this case.

[00:03:23] Speaker 04:
All the previous cases that the court below cited actually didn't have any of those other changes.

[00:03:30] Speaker 04:
It changed margins, it changed comparisons, but the respondent in those other cases did not have to resubmit costs as they had to.

[00:03:41] Speaker 01:
What does that do to the legal posture of the case?

[00:03:44] Speaker 01:
Does it require

[00:03:45] Speaker 01:
petitioner, for example, to review the legal basis for claimed cost or for the pricing that was achieved.

[00:03:58] Speaker 01:
Does it change the structure of the arguments that have been made up to that date?

[00:04:05] Speaker 04:
Well, it certainly could.

[00:04:06] Speaker 04:
I mean, at the point that the information was submitted by good luck, Your Honor,

[00:04:12] Speaker 04:
The Commerce Department determined that it couldn't know exactly what the effects would be of the recalculated costs as well as the new comparisons that would be made.

[00:04:27] Speaker 04:
It could have made significant changes or not.

[00:04:31] Speaker 04:
It just had no way to know.

[00:04:33] Speaker 04:
That was all information that was supposed to have been submitted with its questionnaire responses prior

[00:04:41] Speaker 04:
end of the period for submitting factual information.

[00:04:44] Speaker 01:
Yeah, I understand that.

[00:04:45] Speaker 01:
So when the questionnaires came in, did you provide comments to the questionnaire responses?

[00:04:53] Speaker 01:
We certainly did, Your Honor.

[00:04:55] Speaker 01:
Okay, so once this new calculation is done and you have this cascading effect or changes or whatever, do your comments change?

[00:05:06] Speaker 01:
They certainly could have.

[00:05:09] Speaker 01:
Yes, they could have.

[00:05:10] Speaker 01:
But, well, we didn't get to see.

[00:05:12] Speaker 01:
Well, I'm asking you whether they did or not.

[00:05:15] Speaker 04:
I mean, you tell me.

[00:05:18] Speaker 04:
They did not change because Commerce did not accept the information.

[00:05:23] Speaker 04:
So during the period of investigation, we were not able to comment on that information.

[00:05:28] Speaker 01:
Okay.

[00:05:29] Speaker 01:
Assuming they had accepted the information, would your comments have changed?

[00:05:35] Speaker 04:
Presumably, yes, they would have changed.

[00:05:37] Speaker 04:
And we did make arguments when the information was submitted to commerce.

[00:05:43] Speaker 04:
The idea being that while the whole basket of information, the argument of the other side is that, hey, it's all the same information, it's just been resifted.

[00:05:57] Speaker 04:
But as your honor knows, in the dumping case,

[00:06:00] Speaker 04:
It's not just that the basket of information is complete.

[00:06:04] Speaker 04:
It's how it gets resifted.

[00:06:07] Speaker 04:
And at the time, the question is, before the court, as we understand it, is was it reasonable for commerce and not an abuse of discretion to determine that it could not know what all those cascading effects were?

[00:06:21] Speaker 04:
And therefore, it rejected it based on its,

[00:06:28] Speaker 04:
regulations for submission of factual information.

[00:06:31] Speaker 04:
Essentially, it's not allowing... I'm sorry.

[00:06:34] Speaker 04:
Go ahead.

[00:06:35] Speaker 03:
Judge Clevinger, you started your argument by saying that the reversible error here was that the CIT substituted its judgment on factual matters for that of commerce.

[00:06:49] Speaker 03:
I am just looking at Joint Appendix, page 29, where

[00:06:56] Speaker 03:
or, you know, after the remand determination came back up, you made that complaint to the CIT and the CIC.

[00:07:05] Speaker 03:
And I know, Mr. Luberto, you didn't understand our decision.

[00:07:09] Speaker 03:
So we weren't substituting our judgment at all.

[00:07:12] Speaker 03:
We weren't, this is not a substantial evidence case.

[00:07:16] Speaker 03:
Instead of substituting our judgment for that at Commerce, we were actually holding Commerce's feet to the fire.

[00:07:23] Speaker 03:
I say you should exercise your judgment here the way you've done it in other cases.

[00:07:28] Speaker 03:
And so the ruling of the CIT is not that it was substituting its judgment, but that under existing case law and commerce's own practice, commerce abused this discretion by refusing to accept the minor corrections.

[00:07:45] Speaker 03:
So that's point one.

[00:07:47] Speaker 03:
Point two, are you going to talk about the elephant in the room?

[00:07:54] Speaker 03:
Where is the government?

[00:07:59] Speaker 03:
Okay, I'll address that.

[00:08:01] Speaker 03:
The government is not defending.

[00:08:03] Speaker 03:
The government agreed.

[00:08:05] Speaker 03:
When the case went back up to the CIT, they agreed with the good luck.

[00:08:12] Speaker 04:
I'll address both of those, Your Honor.

[00:08:14] Speaker 04:
Thank you.

[00:08:16] Speaker 04:
So, no, we do think that the Court of International Trade substituted its judgment.

[00:08:22] Speaker 04:
We understand that the court's point was that it was applying what it identified as the Commerce Department's test.

[00:08:34] Speaker 04:
It cited two cases that happened prior to the Commerce Department's adoption of its regulations for governing the submission of factual information, 351-301, in 2013.

[00:08:52] Speaker 04:
the proposed or cited the coded paper case as what commerce's practice was.

[00:09:00] Speaker 04:
I'm not sure that one case makes a practice, but in that case... What regulation are you talking about?

[00:09:09] Speaker 03:
The opinion of the CIT said that the commerce hasn't promulgated any regulations that particularly deal with this matter.

[00:09:16] Speaker 04:
It promulgated a regulation that deals with

[00:09:19] Speaker 04:
the submission of factual information, which Commerce concluded this information was.

[00:09:25] Speaker 04:
Commerce has an exception, and that exception is not within the regulation itself, but it's an exception for minor factual information that where small errors are made, they can be corrected.

[00:09:40] Speaker 04:
But in this instance, the court below has essentially swallowed the rule with the exception,

[00:09:50] Speaker 04:
Uh, by, by taking essentially we have huge, not only were there 600 home market sales that were improperly counted, but there were no costs.

[00:09:59] Speaker 03:
Are you talking about an exception in a regulation?

[00:10:02] Speaker 03:
And it's no right.

[00:10:04] Speaker 03:
The regulation and exception on, on your, I may be stupid here, but you're confusing me.

[00:10:11] Speaker 04:
Uh, I apologize for, for doing that, your honor.

[00:10:13] Speaker 03:
My, the regulation is reading at JA 16, the CABC said,

[00:10:19] Speaker 03:
Notably, no regulation addresses the circumstances under which corrections will be accepted or a time frame within correction should be submitted.

[00:10:28] Speaker 04:
That is correct, Your Honor.

[00:10:29] Speaker 04:
That is correct.

[00:10:31] Speaker 03:
But that there's no there's no fundamental regulatory guidance here.

[00:10:37] Speaker 04:
I think that exception exists within the regulatory guidance of 351-301.

[00:10:43] Speaker 04:
It is not a part of that.

[00:10:45] Speaker 04:
But commerce has said we are making an exception.

[00:10:48] Speaker 04:
And it said so in the decision below.

[00:10:51] Speaker 04:
It said we are making that exception in order, because we recognize that nobody's perfect.

[00:10:58] Speaker 04:
And so small clerical errors and things that are easily correctable can be corrected.

[00:11:03] Speaker 04:
But in this case,

[00:11:06] Speaker 04:
The correction went beyond that.

[00:11:08] Speaker 04:
It required the recalculation of costs for 37 condoms.

[00:11:13] Speaker 04:
And since that regulation, I'm sorry.

[00:11:18] Speaker 03:
And there's an existing case in which the re-arrangement of condoms was held to be material.

[00:11:28] Speaker 04:
There are a number of cases when the court has said that

[00:11:36] Speaker 04:
the department's proper procedure for accepting data shouldn't be interfered with, such as Mid-Continent CO, PCS, VSMOP, that the court can't set aside a proper administrative procedure because it believes that properly excluded evidence would yield a more accurate result.

[00:12:03] Speaker 04:
Now, just if I may, Your Honor, I would just, and I realize I'm repeating my rebuttal time, but to address why the government's not here.

[00:12:12] Speaker 04:
The record doesn't say why the government's not here, and I'd be speculating to give a reason why they decided not to show up.

[00:12:23] Speaker 04:
But the record does show that the Commerce Department made

[00:12:28] Speaker 04:
detailed explanation why I thought it was right in its original decision.

[00:12:32] Speaker 04:
It defended it vigorously at the court.

[00:12:35] Speaker 04:
And when it submitted its remand determination based on it being ordered by the court below to accept that information, it did so under respectful protest.

[00:12:47] Speaker 04:
It would be speculation for me to conclude why they elected Nasir.

[00:12:52] Speaker 03:
I have recent cases in which all that happened, but the commerce continued to complain

[00:12:57] Speaker 03:
when the case went back up to the CIT.

[00:13:01] Speaker 03:
So that's the only reason why I saw this case as a little different because it's the first time I've seen this happen.

[00:13:07] Speaker 03:
Typically, I see commerce continuing to have objecting under protest to what commerce told, to what CIT told it to do.

[00:13:16] Speaker 03:
It was a surprise to us.

[00:13:18] Speaker 04:
Yeah.

[00:13:19] Speaker 04:
It was a surprise to us as well, Your Honor.

[00:13:21] Speaker 04:
But the parties in the case have equally important rights that need to be protected here in making sure that information is placed on the record in an orderly fashion in which we have full rights of participation.

[00:13:36] Speaker 03:
The reason why I raised it is because the decision back after reconsideration by the CIT is so clear in the CIT judge telling us what the rationale for his decision was.

[00:13:50] Speaker 03:
that it was existing case law and commerce's own practice.

[00:13:54] Speaker 03:
He was holding commerce to its practice.

[00:13:57] Speaker 03:
And I just wondered if maybe commerce wasn't agreeing with that point.

[00:14:02] Speaker 04:
I don't think so.

[00:14:03] Speaker 04:
The practice he cites is from one case from 2009.

[00:14:05] Speaker 04:
All right.

[00:14:07] Speaker 04:
Before the regulations.

[00:14:09] Speaker 01:
You're well over your time.

[00:14:12] Speaker 01:
And I'll resource a little time.

[00:14:14] Speaker 01:
But I think it's time to move on to Mr. Marszak.

[00:14:18] Speaker 01:
Thank you, Your Honor.

[00:14:19] Speaker 01:
Yes.

[00:14:21] Speaker 02:
Yes, this is Ned Marshak for Goodluck, Your Honor.

[00:14:28] Speaker 02:
We totally agree with the decision of the Court of International Trade, and we believe the Court got it absolutely correct by overturning Congress's decision, which we believe

[00:14:42] Speaker 02:
It was an abuse of discretion and did not follow its own precedent and did not follow the basic purpose of the anti-dumping law that accuracy and fairness are important.

[00:14:52] Speaker 02:
No draconian penalties for criminal mistakes.

[00:14:55] Speaker 02:
The law is remedial, not cumulative.

[00:14:57] Speaker 01:
So, Chancellor, I'm going to ask you the same question I asked your friend on the other side.

[00:15:05] Speaker 01:
How did this affect the legal posture of the case?

[00:15:10] Speaker 01:
I'm talking about where we end up with this cascading effect.

[00:15:16] Speaker 01:
Had commerce accepted those changes, would that have changed the legal posture?

[00:15:22] Speaker 01:
Would that have required additional arguments for petitioners, for example?

[00:15:27] Speaker 02:
I don't believe it would.

[00:15:29] Speaker 02:
I mean, we believe it was totally mathematical.

[00:15:32] Speaker 02:
The key to the case and the key to the verification

[00:15:36] Speaker 02:
are the product-specific course.

[00:15:38] Speaker 02:
And the way we set up our course system is that we have product-specific courses.

[00:15:44] Speaker 01:
So when you say purity mathematical, the process itself would have been a mathematical process.

[00:15:54] Speaker 01:
But you come out at the end with a different result, correct?

[00:16:00] Speaker 02:
Yes, the result would be different.

[00:16:02] Speaker 02:
I mean, it just so happens the result would have been zero the first way, and it was zero this way, too, as the margin.

[00:16:09] Speaker 02:
The result's different, but because of the mathematical changes, which is the last step of the calculation of margins, and I'll use the phrase economy.

[00:16:19] Speaker 01:
How do we know it would have been zero?

[00:16:21] Speaker 01:
I thought that commerce did not

[00:16:24] Speaker 01:
uh, end up making those calculations.

[00:16:27] Speaker 02:
So, um, commerce in the original determination before commerce, the final results, uh, commerce did not make those determinations.

[00:16:34] Speaker 02:
They weren't adverse facts available.

[00:16:36] Speaker 02:
But then after the court of international trade remanded commerce, that's exactly what commerce did.

[00:16:43] Speaker 02:
Commerce asked us to place on the record, um, the data, which we attempted to place on the record, which commerce rejected.

[00:16:53] Speaker 02:
and on September 23, 2019, in Appendix 3492.

[00:16:59] Speaker 01:
Did you, was that data presented to the CIT?

[00:17:05] Speaker 02:
What we did, the data that Commerce rejected was originally presented

[00:17:12] Speaker 02:
to the CIT, we put it in an appendix to our brief to the CIT, and the CIT looked at it because the CIT wanted to see what had been rejected.

[00:17:22] Speaker 02:
So we put it in an appendix in the CIT, examined the data, and, you know, we believe correctly realized, again, it's the final stages.

[00:17:32] Speaker 01:
What do you mean, what do you mean, what do you mean the exam, what do you mean the exam of the data?

[00:17:37] Speaker 02:
So we, in our brief to the CIT, Your Honor, we placed as exhibits in our brief to the CIT the documents that Commerce rejected.

[00:17:50] Speaker 01:
Correct.

[00:17:51] Speaker 01:
And you said that they examined the data.

[00:17:54] Speaker 02:
What do you mean by that?

[00:17:57] Speaker 02:
The CIT had our brief, it had the exhibits to our brief, and then the CIT came up with its initial decision

[00:18:05] Speaker 02:
Basically, you know, agreeing with our position that we had a clerical error, it was purely mathematical.

[00:18:11] Speaker 02:
Now, I shouldn't speculate as to what the CIT did.

[00:18:15] Speaker 02:
I guess I went too far there, but I assume the CIT looked at the appendix or the CIT may have just looked at our brief and agreed with us.

[00:18:24] Speaker 01:
Do you think it would have been correct for the CIT to look at the data and say, well, there's no difference in the dumping margins one way or the other?

[00:18:34] Speaker 01:
It's a minor...

[00:18:35] Speaker 01:
clerical error here?

[00:18:38] Speaker 02:
No, Your Honor.

[00:18:39] Speaker 02:
And the CIT absolutely did not do that.

[00:18:42] Speaker 02:
What the CIT did, the CIT recognized that the nature, first the CIT recognized that the nature of the error was purely clerical.

[00:18:51] Speaker 02:
And I think that's something that the Department of Commerce said it wasn't clerical, it was methodological.

[00:18:55] Speaker 02:
So the CIT first said, this is purely clerical.

[00:18:59] Speaker 02:
And they realized why, because it was a coding error.

[00:19:02] Speaker 02:
We made a mistake in coding.

[00:19:03] Speaker 02:
We put the actual

[00:19:04] Speaker 02:
wall thickness data was correct.

[00:19:06] Speaker 02:
It was verified.

[00:19:08] Speaker 02:
And then we coded the wall thickness.

[00:19:09] Speaker 02:
We made a mistake.

[00:19:10] Speaker 02:
So the CIT first said it was a coding error.

[00:19:13] Speaker 02:
Then the CIT recognized that when you make a mistake, if it has a cascading effect, that doesn't turn a coding clerical error into some type of new factual information.

[00:19:26] Speaker 02:
So did CIT determine the nature of the error?

[00:19:30] Speaker 02:
Did CIT look at the precedent?

[00:19:32] Speaker 02:
on the commerce precedent.

[00:19:34] Speaker 02:
It looked at the purpose of the law and looked at the CIT precedent.

[00:19:39] Speaker 02:
And then it said it just rebranded the decision to commerce to look at our data.

[00:19:47] Speaker 02:
And then commerce came back

[00:19:48] Speaker 02:
and said, OK, give us the data that we previously rejected.

[00:19:53] Speaker 02:
So on September 23, 2019, we submitted the data that had been previously rejected, and we gave Commerce a database.

[00:20:03] Speaker 01:
Was that the data that you also gave to the CIT?

[00:20:08] Speaker 02:
No, we did not.

[00:20:10] Speaker 02:
I'm trying to remember, Your Honor.

[00:20:12] Speaker 02:
I believe we may have given this data to the CIT, but I can't.

[00:20:18] Speaker 02:
I don't remember if we gave all the data that we gave in the new database.

[00:20:22] Speaker 02:
I think we may have given part of it.

[00:20:25] Speaker 02:
I don't think we gave all the data.

[00:20:29] Speaker 02:
I just don't know.

[00:20:30] Speaker 02:
So I don't want to speculate.

[00:20:32] Speaker 02:
But we did give some data to the CIT.

[00:20:35] Speaker 02:
On remand, we gave a complete new database using the correct coding.

[00:20:43] Speaker 02:
And when we did that, we were able to show commerce that underlying data was exactly the same as it was in our original submission.

[00:20:54] Speaker 02:
And commerce was very clear in that.

[00:20:57] Speaker 01:
But what do you mean the underlying data was exactly the same?

[00:21:00] Speaker 01:
When the recalculation is done, don't you end up with different results?

[00:21:07] Speaker 01:
Cost of production.

[00:21:08] Speaker 02:
OK, when we do cost of production, Your Honor,

[00:21:11] Speaker 02:
When I'm talking about the underlying data, I'm talking about how we calculate our costs.

[00:21:16] Speaker 02:
We calculate our costs on a product-specific basis.

[00:21:21] Speaker 01:
So we do... You end up with different numbers, correct?

[00:21:26] Speaker 01:
You end up with different final numbers, but... Yes, and just a second.

[00:21:32] Speaker 01:
Okay.

[00:21:33] Speaker 01:
Those final numbers is really what counts, unless you're able to show that the methodology was painted.

[00:21:41] Speaker 01:
or was wrong, it's those final numbers that count.

[00:21:45] Speaker 01:
Yes.

[00:21:46] Speaker 02:
Yes, Your Honor, but there's, when you calculate margins, when you set up a cost system and give costs to the Department of Commerce, there's really two critical steps.

[00:21:56] Speaker 02:
The first critical step is that you calculate actual costs based on what's in your database.

[00:22:04] Speaker 02:
and you have to reconcile those costs to your financial system.

[00:22:08] Speaker 02:
So we gave actual costs for almost 4,000 products in our database, and we reconciled that to our financial statement.

[00:22:20] Speaker 02:
And then you take those actual product-specific costs and you put those costs into account.

[00:22:26] Speaker 01:
Just to kind of shorten this, what you're telling us is that

[00:22:30] Speaker 01:
Those final numbers that you achieve when you do your cost of production analysis and everything, your pricing analysis, those final numbers that you achieve, those are important and key.

[00:22:44] Speaker 01:
Absolutely, Your Honor, critical.

[00:22:46] Speaker 01:
So if there's an error, whether it's clerical or not, that changes those values, then would you not say that that is a major change?

[00:22:59] Speaker 02:
The values that we're talking about, the cost of production that reconciled to our financial system, they were not changed.

[00:23:09] Speaker 02:
The product stayed the same, the cost stayed the same from each product.

[00:23:12] Speaker 02:
What changed is the final stage of the process when you take the individual product costs and you put them into, when you combine them into condoms.

[00:23:22] Speaker 02:
So what changed is

[00:23:25] Speaker 02:
For certain condoms, the vast majority of condom state costs stayed the same.

[00:23:30] Speaker 02:
But for certain condoms, let's say approximately 30 condoms, you had a different allocation of actual costs, where the first time you may have had one condom with 10 products.

[00:23:43] Speaker 02:
The next time you have one condom with five products and a second condom with five products.

[00:23:49] Speaker 01:
Is the methodology that's used to allocate costs important in a dumping case?

[00:23:55] Speaker 02:
Absolutely.

[00:23:58] Speaker 02:
But the methodology is critical, isn't it?

[00:24:01] Speaker 02:
It's critical.

[00:24:02] Speaker 02:
But the final methodology, though, and you have an allocation of costs, the product-specific costs, that's critical to get the right cost per product.

[00:24:14] Speaker 02:
But once you get that right cost per product, it's basically a ministerial type of work to allocate those cost economies.

[00:24:24] Speaker 02:
I mean, that's pure arithmetic.

[00:24:27] Speaker 03:
Dennis Clevenger, once you had the right numbers, did the methodology change?

[00:24:34] Speaker 03:
Absolutely not.

[00:24:35] Speaker 03:
Well, I think that's what the presiding judge is getting at.

[00:24:40] Speaker 03:
Of course, the dumping margin, the delta and the n may be different, depending on changes you made because of arithmetic or clerical error, right?

[00:24:53] Speaker 02:
Yes, Your Honor.

[00:24:53] Speaker 03:
I mean, it would almost blow the mind if the dumping margin wasn't affected by the change.

[00:25:03] Speaker 02:
Right.

[00:25:04] Speaker 03:
I mean, the margin change was the kind of change, but the methodology is... The fact that the dumping margin changes doesn't mean that a different methodology was used to calculate the dumping margin.

[00:25:18] Speaker 02:
Correct, Your Honor.

[00:25:19] Speaker 02:
The methodology was identical, the margins changed, because the condoms changed.

[00:25:23] Speaker 00:
Counsel, this is Judge Stoll, just to make sure I understand correctly.

[00:25:27] Speaker 00:
And that methodology, specifically, how to group the condoms and do that, that was something that was specified by commerce, right?

[00:25:36] Speaker 00:
Absolutely, Your Honor.

[00:25:38] Speaker 02:
Commerce creates the condoms.

[00:25:41] Speaker 02:
So commerce groups the individual products into condoms based on physical characteristics.

[00:25:48] Speaker 02:
And our mistake was coding the condom.

[00:25:52] Speaker 02:
So our product-specific costs stayed the same.

[00:25:54] Speaker 02:
The costs were identical.

[00:25:56] Speaker 02:
But the final step, where you have the coding into condoms, the results changed.

[00:26:01] Speaker 02:
The methodology was identical.

[00:26:04] Speaker 02:
Going from a product to a condom is almost ministerial because you have no choice.

[00:26:09] Speaker 00:
And going from the product to the condom, the reason why it was different is because you used the condoms that were provided by Commerce previously, like a month earlier, and then Commerce changed it and you didn't use the changed condom.

[00:26:27] Speaker 00:
Do I understand that correctly?

[00:26:29] Speaker 02:
Yes, we made the clerical mistake in our whole market database of not changing one field wall thickness.

[00:26:37] Speaker 02:
We kept the old wall thickness

[00:26:40] Speaker 02:
code and we should have put the new wall thickness code and that was our clerical error.

[00:26:46] Speaker 02:
Okay, thank you.

[00:26:46] Speaker 02:
Yes, your honor.

[00:26:52] Speaker 02:
Okay, anything else, Mr. Marschak?

[00:26:55] Speaker 02:
I believe my time's up and unless you have any more questions, your honor, I think we've gone through a lot.

[00:27:02] Speaker 02:
Thank you.

[00:27:02] Speaker 01:
Okay.

[00:27:03] Speaker 01:
Mr. Luberto, you have three minutes of time left.

[00:27:09] Speaker 04:
Thank you, your honor.

[00:27:10] Speaker 04:
I think what's critical here is that the way the Court of International Trade interpreted what was allegedly practice was that the exception to rules for placing data on the record would now swallow the rule.

[00:27:30] Speaker 04:
The rejected data left huge holes in the record for cost of production for 37 condoms.

[00:27:39] Speaker 04:
This court has said in numerous cases, Dongtai Peak, Mid-Continent, Papua Fabric, Kohler, that it's basically protected the Commerce Department's right to enforce its regulations for the orderly placing of data on the record and to enforce those time limits.

[00:28:00] Speaker 04:
What the court below did and what Mr. Marshak is suggesting is it doesn't matter

[00:28:07] Speaker 04:
how much the cascading effects are.

[00:28:10] Speaker 04:
It doesn't matter what the missing information is.

[00:28:13] Speaker 04:
It doesn't matter when it was provided or how much work has to go into correct it.

[00:28:17] Speaker 04:
As long as that first mistake was a clerical error of some sort, then everything deserves to be corrected.

[00:28:25] Speaker 04:
And that can't be the standard that gets applied.

[00:28:27] Speaker 04:
This Commerce Department's rules... Why not?

[00:28:33] Speaker 04:
Because the Commerce Department's rules, Your Honor,

[00:28:36] Speaker 04:
are set forth to make sure that it has enough time to evaluate all the data and that the parties have enough time to comment and evaluate all the data.

[00:28:45] Speaker 03:
There's no argument here that there was inadequate time and basically the timing here was created by commerce's own change of mind.

[00:28:55] Speaker 03:
So I'm just asking you why is it that assume that you have one tiny little error and it cascades through the entirety of the submission.

[00:29:06] Speaker 03:
Why does the amount of the cascading have any effect on the end?

[00:29:14] Speaker 03:
I'm just stopping you.

[00:29:16] Speaker 03:
Of course, I mean, it can't happen, and I'm asking you why, and you thus far haven't given me an answer.

[00:29:24] Speaker 03:
If you had a case where a commerce said, hey, wait a second, the reason why we're rejecting this information is because it's going to take us now forever,

[00:29:33] Speaker 03:
Because you've cascaded through the entire submission, and quite frankly, we're not going to do that.

[00:29:38] Speaker 03:
But that's not this case.

[00:29:40] Speaker 03:
So tell me why the cascading explanation, which was used by the CIT to defend its decision, why it was incorrect in this case.

[00:29:53] Speaker 04:
It was incorrect in this case.

[00:29:55] Speaker 03:
That's really all I'm asking.

[00:29:57] Speaker 04:
I understand.

[00:29:58] Speaker 04:
So it was incorrect in this case because

[00:30:02] Speaker 04:
At some point, the Commerce Department has to draw a line where it's just too much information for it to be able to process.

[00:30:12] Speaker 04:
And the Commerce Department, in this case, said that there was simply too much information that was missing that would have to be filled in on the record.

[00:30:20] Speaker 04:
It has to be able to draw the line somewhere.

[00:30:22] Speaker 04:
This was information that could have been provided earlier.

[00:30:25] Speaker 03:
Why did Commerce say those words, too much information to process?

[00:30:32] Speaker 04:
You will find that at appendix.

[00:30:37] Speaker 04:
Pardon me, what page in their determination?

[00:30:43] Speaker 04:
They may, they go into that appendix page 2812 and then also on pages 2816 and 2817, 2816 in particular, that it would require recalculation of costs for numerous condoms and assigning and they,

[00:31:02] Speaker 04:
don't have correct cost of production.

[00:31:05] Speaker 03:
The numerous goes to CASP-A.

[00:31:07] Speaker 03:
Where was it that it was burdensome?

[00:31:12] Speaker 04:
It says that any attempts to correct these errors would involve both extensive SAS programming and a complex calculation for Goodluck's database.

[00:31:21] Speaker 04:
So that's on page 2816 of the appendix.

[00:31:25] Speaker 04:
So I'm characterizing, paraphrasing and characterizing.

[00:31:29] Speaker 04:
Where on 2816?

[00:31:33] Speaker 04:
It's in the middle paragraph that starts additionally.

[00:31:36] Speaker 04:
It's the last sentence.

[00:31:49] Speaker 03:
Right.

[00:31:49] Speaker 03:
But I mean, that's cascading.

[00:31:51] Speaker 03:
That's not a matter of burdensome.

[00:31:54] Speaker 03:
I thought you were trying to make the point that Commerce was correctly rejecting this because the burden on Commerce was too great.

[00:32:02] Speaker 04:
Well, that's the way I would, I would read that.

[00:32:05] Speaker 03:
That would be a legitimate explanation, but I didn't see that anywhere expressed in the record.

[00:32:12] Speaker 04:
Well, the commerce, it's not the commerce department's burden to create the record.

[00:32:16] Speaker 04:
It was the respondents.

[00:32:17] Speaker 04:
And, and I guess your honor that I read that paragraph in that manner.

[00:32:22] Speaker 03:
In terms of exercising discretion to refuse to accept an offered change.

[00:32:30] Speaker 03:
If your explanation is it's going to be too big a burden on us to process, then the burden is on commerce to explain that.

[00:32:41] Speaker 04:
I would submit, Your Honor, that that's what commerce was explaining, but I understand your point.

[00:32:46] Speaker 03:
I was pushing you on two points because you made broad statements, and I asked you to defend them in the record, and in both instances, you have been unable to do that.

[00:32:56] Speaker 03:
So that's all I was doing.

[00:32:57] Speaker 03:
I'm trying to get the right answer here, sir.

[00:33:00] Speaker 03:
I understand that.

[00:33:02] Speaker 03:
Attorney argument that is sort of all-inclusive but lacks support can't be attorney argument that persuades us.

[00:33:11] Speaker 03:
I think you'll appreciate that.

[00:33:14] Speaker 01:
I do, Your Honor.

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

[00:33:17] Speaker 01:
Mr. Lueb, would you like to conclude, sir?

[00:33:22] Speaker 04:
Thank you, Your Honor.

[00:33:23] Speaker 04:
I'll do it in two sentences.

[00:33:25] Speaker 04:
So in this case, the

[00:33:28] Speaker 04:
Record shows that the amount of data that the department had to correct was properly characterized by the Commerce Department as being additional factual information that should have been submitted prior and was not due to the good luck inattentiveness and lack of attention to detail.

[00:33:50] Speaker 04:
And therefore, its decision should have been upheld originally and the Court of International Trade should not have

[00:33:57] Speaker 04:
substitute his judgment for that of the department.

[00:34:00] Speaker 04:
Thank you, Your Honors.

[00:34:01] Speaker 04:
Okay.

[00:34:02] Speaker 04:
Thank you.

[00:34:03] Speaker 04:
We take this case under submission.