[00:00:00] Speaker 04:
We'll hear argument next in number 21-2281, Shelter Forest International Acquisition Against the United States.

[00:00:10] Speaker 04:
Ms.

[00:00:10] Speaker 04:
Thorson.

[00:00:13] Speaker 01:
Good morning.

[00:00:14] Speaker 01:
May it please the court, my name is Maureen Thorson, and I'm appearing today on behalf of Appellants to Coalition for Fair Trade in Hardwood, Iowa.

[00:00:23] Speaker 01:
This court should reinstate commerce's rejection and shelter's untimely data.

[00:00:29] Speaker 01:
Commerce's regulations state explicitly that it will not consider untimely filed questionnaire responses.

[00:00:38] Speaker 01:
The Tariff Act of 1930 also states that parties other than the mandatory respondents, like Shelter here, are subject to the same deadlines as the mandatory parties.

[00:00:49] Speaker 01:
Here, Shelter did not respond to the original questionnaires issued to the mandatory respondents.

[00:00:55] Speaker 01:
While Shelter filed a partial response to the supplemental questionnaires, it also acknowledged that those questionnaires sought all possible documentation concerning the issues therein, including a precise breakdown of resin materials in support of documentation.

[00:01:13] Speaker 01:
Instead of providing this data, Shelter referred the agency to its prior submissions, which did not contain the information.

[00:01:21] Speaker 01:
Shelter made no further attempts to provide information on its residents until July 3rd, 2019, more than four months after the supplemental responses were due, one month after the preliminary results were issued, and only two weeks before the due date for case briefs.

[00:01:39] Speaker 01:
The lower court erred in requiring Commerce to accept this late data on remand and to give Shelter even further bites at the apple.

[00:01:48] Speaker 01:
Shulter was not attempting to correct clerical errors or similar technical mistakes.

[00:01:55] Speaker 01:
Rather, it was attempting to submit nearly 100 pages of completely new information responsive to Congress's questionnaires months after that information was due.

[00:02:06] Speaker 01:
Again, Shulter expressed the answer.

[00:02:10] Speaker 06:
Hi, my understanding is in your appeal, you do not dispute that section 1677MD applies to Shelter Forest.

[00:02:24] Speaker 06:
But your position is that Shelter Forest did in fact get that second opportunity to try to correct any deficiencies.

[00:02:34] Speaker 06:
Is that the correct understanding of

[00:02:37] Speaker 06:
your position as to Section 1677MD?

[00:02:42] Speaker 01:
I think it's a little bit more nuanced than that, Your Honor.

[00:02:45] Speaker 01:
First of all, I do think that Shelter had multiple opportunities to timely file information and that it was aware of the deadlines and of the information being requested.

[00:02:55] Speaker 01:
Right.

[00:02:55] Speaker 06:
So I understand it's your position that Commerce did in fact fulfill its statutory obligations to Shelter under 1677MD.

[00:03:04] Speaker 06:
Is that right?

[00:03:07] Speaker 01:
Well, I believe that, again, I think it's a little bit more nuanced because I think because Shelter didn't respond to the original questionnaire, 1677MD isn't really in effect here.

[00:03:24] Speaker 01:
If you look closely at the terms of that statute, it says if you respond to a questionnaire, but your response is sufficient, then Congress needs to give you an opportunity to supplement.

[00:03:36] Speaker 05:
Does it say the word questionnaire in that statute?

[00:03:42] Speaker 01:
I believe it's request for information.

[00:03:45] Speaker 05:
Right.

[00:03:45] Speaker 01:
So let me double check.

[00:03:56] Speaker 03:
Where's volunteer request?

[00:04:00] Speaker 01:
A request for information.

[00:04:02] Speaker 01:
So if the administering authority determines that a response to a request for information under the subtitle does not comply with the request, then typically the requests for information are in the form of questionnaires.

[00:04:15] Speaker 01:
Here,

[00:04:16] Speaker 01:
There was no response to the original questionnaire.

[00:04:19] Speaker 04:
I'm sorry, but why wasn't the supplemental questionnaire a request for information that is covered by 1677-MD?

[00:04:27] Speaker 01:
I think that's because if you look closely at 1677-MD, it says if you do respond to a request for information and the response, the supplemental response that you filed is sufficient, then commerce may

[00:04:42] Speaker 01:
disregard all part of the original and subsequent responses.

[00:04:47] Speaker 01:
I think you cannot read reasonably this statute to require endless bites of the apple where every deficient supplemental requires another

[00:04:57] Speaker 04:
But why does this case involve in perpetuity or anything like it?

[00:05:09] Speaker 04:
The first request for information to which Shelter responded.

[00:05:16] Speaker 04:
is the only request for information to which Shelter responded.

[00:05:20] Speaker 04:
Putting aside what came before, it responded to the earlier ones, right?

[00:05:27] Speaker 01:
And it didn't get a note.

[00:05:34] Speaker 04:
Excuse me.

[00:05:38] Speaker 04:
Can you hear when we're talking or not?

[00:05:42] Speaker 04:
Okay, well, I think you should if I'm trying to say something or one of my colleagues you should stop yourself, okay?

[00:05:50] Speaker 04:
So There's no argument here about the very initial things I forget what the name is of the amount Request or something that went to everybody quality and quality and valuation, right?

[00:06:04] Speaker 04:
But then there's the first Questionnaire response that went to the three named respondents, right?

[00:06:12] Speaker 04:
And Shelter did not respond to that.

[00:06:15] Speaker 04:
It wasn't asked to, and it didn't.

[00:06:19] Speaker 04:
Then the supplemental requests for information that went to, is it two of the three named respondents?

[00:06:26] Speaker 01:
Yes, Your Honor.

[00:06:27] Speaker 04:
That one Shelter responded to.

[00:06:30] Speaker 04:
Why is that not covered here so that it wouldn't be absurd to read 1677MD to say the first

[00:06:40] Speaker 04:
That is, you don't have an endless series of corrections or demands for deficiency notice from the starting point of the first request for information that you respond to.

[00:06:54] Speaker 04:
Not the first request for information that somebody else respond to, the first that you respond to.

[00:07:01] Speaker 01:
Because respondents are not in charge of the proceeding.

[00:07:04] Speaker 01:
Respondents should not be permitted to pick and choose which questions and which questionnaires they're going to answer.

[00:07:12] Speaker 01:
And then when they don't get a result they like, cry it out.

[00:07:15] Speaker 03:
But commerce in the fact, this is Judge Clevenser in the past, has in fact used 16, has satisfied 1677MD when a voluntary, when a response has been made voluntarily.

[00:07:31] Speaker 03:
The position that Commerce took in this case is, well, you know, we do respond, we do deal with 1677MD if we have time.

[00:07:44] Speaker 01:
No, Your Honor, I don't think that's a fair characterization here, particularly given how late in the game Shelter attempted to file this new information.

[00:07:54] Speaker 01:
that it only filed that information despite acknowledging exactly what Congress was asking for at the time that it was originally due and choosing simply not to provide it.

[00:08:06] Speaker 01:
That waited four months to submit the information and only after it became aware that its litigation strategy wasn't working fine.

[00:08:13] Speaker 03:
Ms.

[00:08:13] Speaker 03:
Dawson, it seemed to me that the Court of National Trade found Congress abused its discretion because it violated its obligations under 1677MD.

[00:08:24] Speaker 03:
That seems perfectly clear, and a violation of law is a classic abuse of discretion.

[00:08:31] Speaker 03:
And so when this case was in front of the CIT the first time around, when the government was still in the case, they did not argue that 1677MD did not apply because it can never apply to a voluntary response.

[00:08:45] Speaker 03:
They made the same arguments you did.

[00:08:47] Speaker 03:
It was late, et cetera, et cetera.

[00:08:51] Speaker 01:
And in your brief... Our argument has never been that 1677MD can't apply to a voluntary respondent, but voluntary respondent... Okay, well, can you stop right there?

[00:09:04] Speaker 03:
If we assume that 1677MD applies to the response that was voluntary response made by shelter, then I suppose your argument has to be that the violation of law was harmless error in this case.

[00:09:22] Speaker 01:
No, Your Honor, what I meant is that not that a voluntary response is not subject to 1677MD.

[00:09:31] Speaker 01:
I believe if you are a voluntary respondent in general and you answer the questionnaires as they come along, then you are grandfathered into 1677MD.

[00:09:42] Speaker 01:
Here, Shelter did not file any response to the original questionnaire, typically even with a mandatory respondent

[00:09:51] Speaker 01:
Congress does not treat a complete non-response as requiring notice of a deficiency under 1677MV.

[00:10:01] Speaker 01:
It's simply not the case.

[00:10:02] Speaker 03:
ShelterFor is filed on October 5th, 18, a comment on the CPC data.

[00:10:10] Speaker 03:
What was that file?

[00:10:13] Speaker 01:
I believe what you might be referring to is their quantity and value questionnaire.

[00:10:19] Speaker 03:
No, I'm not.

[00:10:20] Speaker 03:
Their quality and value questionnaire, which they submitted, which is in joint appendix at 1889, refers to another document.

[00:10:27] Speaker 03:
That is to say, comments on the CPB data.

[00:10:32] Speaker 01:
Yes.

[00:10:33] Speaker 01:
That would have been a comment on which companies should have been selected as mandatory respondents.

[00:10:42] Speaker 03:
So Shelter is engaging in the process.

[00:10:45] Speaker 03:
They're both commenting on that.

[00:10:47] Speaker 03:
And then they're commenting on the quality and value questionnaire, right?

[00:10:52] Speaker 01:
Yes.

[00:10:52] Speaker 01:
So they answered the quantity and value questionnaire.

[00:10:57] Speaker 01:
However, my point of view is that the answer to the quantity and value questionnaire did not compel the agency to accept the late file date or data that was filed months later.

[00:11:09] Speaker 01:
Shelter responded to all of the questions in the quantity and values questionnaire, and while Congress ultimately wasn't convinced of Shelter's claim as to the date on which it first started shipping inquiry goods, failure to persuade is not a deficiency that requires the agency to accept supplemental data.

[00:11:27] Speaker 01:
I think there's a distinction to be made as to what is a actual deficiency.

[00:11:33] Speaker 01:
If you make a claim that the agency disagrees with, that is not the same as a deficiency.

[00:11:39] Speaker 01:
However, in the supplemental questionnaire, Sheldon said, we acknowledge commerce in this supplemental is requesting all possible documentation on our revenue.

[00:11:52] Speaker 01:
Ms.

[00:11:53] Speaker 01:
Thorson.

[00:11:54] Speaker 06:
Yes, sir.

[00:11:57] Speaker 06:
I feel like I'm hearing an argument that's a little different than the argument I saw in your blue brief.

[00:12:03] Speaker 06:
As I understood the argument in your blue brief, you were saying commerce did fulfill its obligations under 1677MD with respect to Shelter because Shelter was watching all of the back and forth going on between the mandatory respondents in commerce through

[00:12:21] Speaker 06:
the initial questionnaire responses, and then the supplemental questionnaire came in.

[00:12:26] Speaker 06:
And so in that sense, as a witness to all of that, it had already gotten a preview of what the first bite of the apple looks like and what the second bite of the apple should look like.

[00:12:39] Speaker 06:
And under that kind of circumstances, if you squint a little bit, you could understand or should understand that shelter

[00:12:47] Speaker 06:
did get an opportunity to cure any deficiencies by seeing how the mandatory respondents were able to get a shot at curing their deficiencies.

[00:12:57] Speaker 06:
But this morning, the argument I'm hearing from you is something a little different, which is if you are a voluntary responder, and you elect to respond only at the stage of the supplemental questionnaire, and you decline to participate at the initial questionnaire stage,

[00:13:16] Speaker 06:
then you've essentially given up any right to have commerce notify you of any deficiencies that may exist in your response to the supplemental questionnaire.

[00:13:27] Speaker 06:
And that particular argument I did not see in your blue brief.

[00:13:31] Speaker 06:
Do you see the distinction?

[00:13:33] Speaker 01:
I do, Your Honor.

[00:13:34] Speaker 01:
And I think our argument that you menu from our blue brief holds as well.

[00:13:38] Speaker 06:
I know, but I'm trying to figure out what you preserved as an argument.

[00:13:46] Speaker 01:
If the court finds that what has been concerned is the argument in the blueberries that you specifically described, well, we believe that that argument is sufficient here.

[00:13:56] Speaker 01:
Shelter was on notice of exactly what was asked for in both the original and supplemental questionnaires.

[00:14:03] Speaker 01:
In its supplemental questionnaire response, it in fact glossed what that information was and implied that it had already provided it.

[00:14:12] Speaker 01:
said, you have requested all possible documentation on the issues such as resin formula.

[00:14:19] Speaker 01:
Please look at what we have already filed.

[00:14:23] Speaker 01:
Then when it tries to submit supplemental data much later, it's simply out of luck four months later to take the position that, well, we understood what you asked for.

[00:14:34] Speaker 01:
We acknowledged what you asked for at the time of the due date, but decided not to present this information.

[00:14:40] Speaker 01:
Commerce is not under an obligation at that point to accept this new and untimely data.

[00:14:46] Speaker 01:
Commerce did not abuse its discretion by refusing to take that new, extremely late data on the record here.

[00:14:56] Speaker 01:
I see I'm nearly out of my time.

[00:14:57] Speaker 01:
I'll preserve what little I have left.

[00:15:00] Speaker 04:
OK, thank you.

[00:15:06] Speaker 04:
Mr. Dirling, is that who we're about to hear from?

[00:15:16] Speaker 02:
I guess it's still a good morning.

[00:15:18] Speaker 02:
My name is James Durling appearing on behalf of shelter forced in the other Apple ease here I'm dividing the argument with my colleague Brian Senko just as a general roadmap.

[00:15:27] Speaker 02:
I'll be addressing the issue of

[00:15:29] Speaker 02:
about what information commerce could permissibly consider in making its re-determination and then my colleague will address what that information shows and that substantial evidence actually supports commerce's re-determination.

[00:15:43] Speaker 02:
I'd like to jump right to the statutory provision.

[00:15:46] Speaker 02:
And I agree with the court that the statutory provision here is critical, because it really is the centerpiece of Judge Rustani's decision, and it's really kind of the central issue here.

[00:15:57] Speaker 02:
And I just want to highlight a few key points about this statutory provision.

[00:16:02] Speaker 02:
The relevant provision, subsection D, speaks very broadly to any requests for information, and it covers all stages of any proceeding before the agency.

[00:16:15] Speaker 02:
I think the key language that I would direct the court to is subsection D refers specifically to for information under this subtitle.

[00:16:26] Speaker 02:
Subtitle 4.

[00:16:26] Speaker 02:
Why didn't Shelter respond to the initial questionnaire?

[00:16:29] Speaker 02:
Your Honor, because we had already provided all of the information that Commerce had requested, when the petition was originally filed, we provided comments on the petition that included about 600 pages.

[00:16:46] Speaker 02:
because there was an issue we were trying to clarify.

[00:16:49] Speaker 02:
The other information on the records, Your Honor... On the glue?

[00:16:53] Speaker 02:
On the glue, yes.

[00:16:55] Speaker 02:
Basically... But the only thing you said in response on the glue was, see what we said before.

[00:17:00] Speaker 02:
Because in our view, Your Honor, our belief was that what had been provided before was sufficient.

[00:17:05] Speaker 02:
Let me just clarify what was provided before.

[00:17:07] Speaker 06:
The supplemental question specifically asked the mandatory respondents to have a breakdown, ingredient by ingredient, of the percentage of their resin.

[00:17:15] Speaker 06:
Yes, Your Honor.

[00:17:16] Speaker 06:
Why didn't you just follow through with a straightforward response to a straightforward question?

[00:17:22] Speaker 02:
Because Shelter's submissions had been earlier in the process, quite extensive.

[00:17:29] Speaker 02:
And those are the submissions that Commerce ultimately relied upon, Your Honor.

[00:17:33] Speaker 02:
When Commerce made its determination.

[00:17:35] Speaker 06:
I don't understand the answer to my question.

[00:17:38] Speaker 06:
My question was, you had these very clear questions being directed at you.

[00:17:42] Speaker 06:
No.

[00:17:43] Speaker 06:
You saw the initial questions in the initial questionnaire to the mandatory respondents asking for precise information about their residence.

[00:17:52] Speaker 06:
And then you saw the follow-up questions and the supplemental questionnaire saying, no, what we mean is we want a percentage breakdown for each ingredient of which a resin is comprised.

[00:18:05] Speaker 06:
And so that's why I'm just wondering, after having seen all of that,

[00:18:09] Speaker 06:
Why didn't you actually do what you were supposed to do in response to the supplemental questionnaire if you actually wanted to answer the questions provided by Commerce and the supplemental questionnaire?

[00:18:20] Speaker 02:
Two reasons, Your Honor.

[00:18:21] Speaker 02:
One, actually, the supplemental questionnaire wasn't directed to us because we had not been formally designated as a volunteer respondent.

[00:18:30] Speaker 02:
That's true.

[00:18:30] Speaker 02:
But you very clearly were on notice what Commerce was looking for when it came to the

[00:18:34] Speaker 02:
the nature of the resin.

[00:18:36] Speaker 02:
Your Honor, we truly believe that what we had submitted already addressed the issue, because let me just clarify, Your Honor.

[00:18:43] Speaker 06:
Did you break down percentage-wise the different ingredients that made up your glue?

[00:18:47] Speaker 02:
I don't think you did.

[00:18:48] Speaker 02:
The breakdown of the specific percentage had not happened yet, Your Honor.

[00:18:52] Speaker 02:
But we, at that point in time, still believed that what we had submitted, which was sworn testimony which Commerce relied upon in his preliminary determination,

[00:19:03] Speaker 02:
sworn testimony that our glue was formaldehyde base, we thought that was sufficiently responsive to the question.

[00:19:11] Speaker 02:
It was only in the preliminary determination that Commerce, for the first time, basically confirmed that they were accepting.

[00:19:17] Speaker 06:
I understand that this is your opinion.

[00:19:21] Speaker 02:
Yes, Your Honor.

[00:19:23] Speaker 02:
Basically, Commerce accepted all of the information.

[00:19:26] Speaker 02:
Commerce, for the first time, identified a deficiency.

[00:19:30] Speaker 02:
which was then directed to us.

[00:19:33] Speaker 02:
They had looked at our information, which is what sub D requires.

[00:19:37] Speaker 02:
If requests had been made, so parties give information, and if you have a concern about that specific information, the supplemental questionnaire was directed to deficiencies by the mandatory respondents.

[00:19:51] Speaker 02:
Commerce at that point in time had not addressed

[00:19:53] Speaker 02:
any deficiencies in what Shelter had submitted.

[00:19:56] Speaker 02:
The first time Commerce said anything at all about deficiencies by Shelter was in the preliminary determination, and that's what we responded to.

[00:20:09] Speaker 06:
There's this volunteer called Shelter that is not truly established as a voluntary respondent that has submitted some information.

[00:20:17] Speaker 06:
But it's incomplete, and we're not going to consider and evaluate it, because Shelter did not go through the entire initial questionnaire, supplemental questionnaire process.

[00:20:26] Speaker 02:
Would that have been fine in the preliminary determination to focus only on the mandatory respondents?

[00:20:31] Speaker 02:
Commerce certainly had the option of rejecting the information Shelter had submitted.

[00:20:35] Speaker 02:
I'm just trying to get a yes or no.

[00:20:37] Speaker 02:
answer to that question that I asked.

[00:20:39] Speaker 02:
I'm sorry, which is, could Commerce have the authority to do that?

[00:20:42] Speaker 06:
Yeah, in the preliminary determination, only analyze all of the information that it received from the mandatory respondents that they received through the initial and supplemental questionnaires plus anything else that they have provided.

[00:20:54] Speaker 02:
The answer to your question is yes, but the key point is that is not what Commerce chose to do.

[00:21:00] Speaker 02:
Instead, Commerce chose to accept the information that Shelter had submitted, proceeded to analyze it as if

[00:21:07] Speaker 02:
shelter were a mandatory respondent, even though it wasn't a mandatory respondent.

[00:21:12] Speaker 02:
And Commerce then said, criteria one, you're fine.

[00:21:15] Speaker 02:
Criteria two, you're fine.

[00:21:17] Speaker 02:
Criteria three, you said formaldehyde base, but we needed evidence that it was majority formaldehyde.

[00:21:24] Speaker 02:
And for the first time, they identified the specific gap in the shelter information, which they needed to resolve the issue.

[00:21:32] Speaker 03:
So, wait a second, you're arguing that the 1677MD duty on commerce is triggered by the initial determination?

[00:21:40] Speaker 02:
No, Your Honor, it's written in the broadest possible terms.

[00:21:43] Speaker 03:
I understand, but in terms of how it functions, you're saying in this particular case, it was triggered because of commerce's failure to notify of the deficiency and give them a chance to cure it after the preliminary determination?

[00:21:56] Speaker 02:
Well, no, Your Honor, it's Shelter submitted the information, which Shelter had

[00:22:00] Speaker 02:
represented as being sufficient.

[00:22:02] Speaker 03:
Bill had volunteered some information that the mandatory had given in specifics.

[00:22:07] Speaker 03:
They volunteered that information.

[00:22:08] Speaker 03:
Then they learned at the preliminary determination in August, sorry you lose, your information wasn't specific enough.

[00:22:16] Speaker 03:
Right?

[00:22:16] Speaker 03:
Yes.

[00:22:17] Speaker 03:
And you're saying that's the point in time when the 1677 MD duty on Congress triggered to say, you now have an additional time to come in and make a correction after the preliminary determination.

[00:22:32] Speaker 02:
Yes, Your Honor.

[00:22:33] Speaker 03:
Doesn't that strike you as really odd?

[00:22:35] Speaker 02:
No, actually not, Your Honor, because the point is deficiencies have to be directed to specific parties.

[00:22:41] Speaker 03:
Isn't the time for getting your act together before the preliminary determination?

[00:22:47] Speaker 02:
No, Your Honor, because technically I wouldn't say the obligation was triggered in the preliminary.

[00:22:51] Speaker 02:
The obligation was triggered

[00:22:52] Speaker 02:
before the preliminary when Commerce decided it was going to look to Shelter's information and apply Shelter's information to the three criteria.

[00:23:01] Speaker 04:
Can I ask you this question?

[00:23:02] Speaker 04:
So the three mandatory respondents submitted answers to the initial questionnaire, is that right?

[00:23:11] Speaker 04:
Yes, Your Honor.

[00:23:13] Speaker 04:
Commerce thought it needed more information, so it put out supplemental questionnaire, right?

[00:23:18] Speaker 04:
Yes.

[00:23:19] Speaker 04:
And did any of the answers that the mandatory respondents gave use language like the base of the glue?

[00:23:31] Speaker 02:
Not that I recall, Your Honor.

[00:23:32] Speaker 02:
My colleague may have a comment on that specific question, so I'll flag that for him.

[00:23:37] Speaker 02:
Not to my knowledge.

[00:23:38] Speaker 02:
Was there any reference to the base?

[00:23:40] Speaker 04:
I guess what I'm trying to understand is whether the deficiencies that Commerce identified in the answers to the mandatory respondent's initial questionnaire put you on notice that to say that the following is the base of our glue would not suffice to answer the ultimate question about percentage ingredients.

[00:24:10] Speaker 02:
Your Honor, in our view, it was not sufficient to put us on notice because we were surprised in the preliminary determination.

[00:24:18] Speaker 06:
We were surprised that Commerce decided to... But just to clarify, you don't know the answer to Judge Toronto's question as to what exactly were the responses about the glue or about the resin from the mandatory respondents.

[00:24:35] Speaker 02:
To the initial questionnaire questions your honor I can't specifically speak to what each of the three mandatory respondents specifically said about the specific glue issue Okay, all I can speak to is what shelter had submitted as information would you have had access to the to their answers?

[00:24:52] Speaker 02:
I mean theoretically yes your honor, but then because your

[00:24:57] Speaker 02:
allies or because no no no it's because we have access under the administrative protective order so we did have access to the complete record but I can tell you that it's not standard practice for when you're representing your client it's not standard practice to analyze at the most microscopic level

[00:25:14] Speaker 02:
every response of every other party in the proceeding.

[00:25:17] Speaker 02:
I mean, in theory, we have access to the information, but your question was reasonable.

[00:25:22] Speaker 04:
I think you understand this, but I guess what's in my mind, and maybe I'm thinking about this wrong, is if you had access to their response to the initial questionnaire, and if their initial questionnaire response used language of base,

[00:25:37] Speaker 04:
Similar to the language you had previously used and if in response to that commerce said we need more that would make it awkward for you to Then submit something that's just stuck with base Let me respond to that briefly because I see I am out of time and I do want to respect the time I think it really comes down to page 17 of commerce's preliminary decision

[00:26:04] Speaker 02:
Because it wasn't just the base versus the majority.

[00:26:07] Speaker 02:
Commerce's real objection was basically, however shelter did not, I'm quoting here, however shelter.

[00:26:14] Speaker 02:
So what page?

[00:26:15] Speaker 02:
Page 17.

[00:26:15] Speaker 04:
That doesn't help me.

[00:26:17] Speaker 02:
I'm sorry.

[00:26:17] Speaker 02:
I don't have with me the app page number.

[00:26:21] Speaker 03:
Initial determination?

[00:26:22] Speaker 02:
No, it's the preliminary determination by Commerce dated June 4, 2019.

[00:26:27] Speaker 02:
My apologies if my colleague may have the app number.

[00:26:35] Speaker 04:
Preliminary Determination Memo?

[00:26:37] Speaker 02:
Yes.

[00:26:38] Speaker 02:
June 4, 2019.

[00:26:41] Speaker 02:
Preliminary Determination Memo.

[00:26:44] Speaker 02:
Page 17?

[00:26:44] Speaker 02:
Yeah, page 17.

[00:26:46] Speaker 02:
49.

[00:26:48] Speaker 02:
My apologies, Your Honor.

[00:26:50] Speaker 02:
Near the top, near the bottom?

[00:26:52] Speaker 02:
Near the top.

[00:26:55] Speaker 02:
And the key sentence, your honor, is, however, shelter forest did not provide any documentation to support its assertion that it was made from a formaldehyde base.

[00:27:07] Speaker 02:
So the crux of the problem was shelter put a fact in record.

[00:27:12] Speaker 02:
Commerce wasn't satisfied with the level of documentation.

[00:27:16] Speaker 02:
that's very shelter specific, and this is the first time we have any notice at all.

[00:27:21] Speaker 04:
What I'm understanding you to be saying is Commerce did not say a reference to base is not the same as a designation of ingredients.

[00:27:33] Speaker 02:
Yes, Your Honor, what they're saying is they wanted documentation of that fact.

[00:27:39] Speaker 02:
Of what fact?

[00:27:41] Speaker 02:
They're saying documentation that it was of, in fact, a formaldehyde, urea formaldehyde base.

[00:27:48] Speaker 04:
I'm sorry, I know I'm taking your time.

[00:27:52] Speaker 04:
I take the significance of your quoting this to be the following.

[00:27:58] Speaker 04:
Commerce never said, when you say base, that doesn't give us the ingredient information.

[00:28:04] Speaker 04:
Rather, Commerce is saying, you're saying, you don't have the documentation of your base assertion.

[00:28:12] Speaker 04:
Not that a base assertion would not satisfy our initial request.

[00:28:16] Speaker 02:
That is correct, Your Honor.

[00:28:19] Speaker 02:
I'm happy to respond to any of the questions, but I see I'm over time.

[00:28:22] Speaker 02:
And so I'll conclude unless there are additional questions.

[00:28:26] Speaker 04:
Thank you.

[00:28:28] Speaker 04:
I perhaps should have asked Mr. Durling, do you have anything to say about what, if any, significance we should attribute to the fact that the government is not here and didn't even say under protest when it entered its remand?

[00:28:45] Speaker 04:
Are you prepared to... Yes, I am.

[00:28:48] Speaker 00:
Sorry, Your Honor, I'm happy to answer.

[00:28:49] Speaker 00:
Please.

[00:28:51] Speaker 00:
So we can't, Your Honor... I didn't catch your name.

[00:28:53] Speaker 00:
Good morning.

[00:28:54] Speaker 00:
May it please the court, Brian Senko, on behalf of Plaintiff Appellee's Patriot Timber Products, Incorporated, and Taraka Pacifica, Incorporated.

[00:29:02] Speaker 00:
To answer your question, Your Honor, we can't look behind the lens and see why the government isn't here, but the key component is its remand determination wasn't under protest.

[00:29:13] Speaker 00:
So it wasn't protesting what the court asked to.

[00:29:16] Speaker 00:
Everything it found was based on the full record.

[00:29:19] Speaker 00:
So that's the key point to your honor's question.

[00:29:21] Speaker 04:
But it also didn't say, having considered whether we should

[00:29:31] Speaker 04:
allow this information on discretion grounds, we would now exercise that discretion to consider this information even if we weren't under an order.

[00:29:46] Speaker 04:
from the trade court saying that we are required to.

[00:29:51] Speaker 04:
It never said that, right?

[00:29:53] Speaker 00:
Correct.

[00:29:53] Speaker 00:
But I think to your honor's point is, generally, when you see these romance under protest, it would make such a statement saying, we don't think we were required to, but we have and here is our analysis.

[00:30:06] Speaker 00:
And that is very important that they didn't say that, and they didn't get into that analysis.

[00:30:11] Speaker 00:
That's telling as it is.

[00:30:13] Speaker 00:
And as you heard from Mr. Durling, the commerce established a false record.

[00:30:19] Speaker 00:
Now I will discuss that record and the coalition's attempt to have this court reweigh commerce's factual determinations.

[00:30:26] Speaker 00:
This court should affirm the trade court's judgment because Shelter Force established that inquiry merchandise was commercially available.

[00:30:33] Speaker 00:
and therefore could not constitute later developed merchandise.

[00:30:37] Speaker 00:
Inquiry of merchandise as defined by the coalition meets three criteria.

[00:30:41] Speaker 00:
The factual dispute here, as Mr. Durling discussed in your honors have asked questions, relates to one issue, whether Shelter 4 has demonstrated that its E0 blue consisted of majority of urea formaldehyde.

[00:30:54] Speaker 00:
Here, Commerce made a factual conclusion that Shelter Forest's EZR glue consisted of a majority of urea formaldehyde.

[00:31:02] Speaker 00:
This finding was supported by a substantial record on the evidence demonstrated by the glue recipe report and also the glue inspection report submitted by Shelter Forest.

[00:31:12] Speaker 00:
And notably, there was substantial evidence

[00:31:14] Speaker 00:
even without this information that the coalition argues should be rejected.

[00:31:19] Speaker 00:
And that gets to Mr. Durling's point on Your Honor's question on the base.

[00:31:24] Speaker 00:
There was never any determination by Commerce that saying something was a urea formaldehyde base is not sufficient.

[00:31:31] Speaker 00:
They took issue with the fact that there wasn't, as Mr. Durling said,

[00:31:36] Speaker 00:
Additional evidence on the record besides these declarations from these company officials, and that's what the trade court said well if you were going to Doubt that you needed to seek more information because what's on the record answers your question and to also answer your honors question the other respondents generally referred to urea formaldehyde glue or and to that regard

[00:32:00] Speaker 00:
And then Commerce considered the coalition's arguments and rejected them in favor of its reasonable conclusions, which were supported by Sudhanshal Evans.

[00:32:09] Speaker 00:
Notably, in the earlier panel, you actually didn't hear from arguments from my colleague regarding any of the facts.

[00:32:18] Speaker 00:
And that is key, because as this court is readily familiar with,

[00:32:22] Speaker 00:
the standard of review, the mere fact that it's possible to drive two inconsistent conclusions.

[00:32:28] Speaker 04:
Can I ask you one aspect of the issue about the soundness of commerce's ultimate decision, putting aside the question of whether it should ever have had to make a new decision?

[00:32:48] Speaker 04:
Is this idea that

[00:32:52] Speaker 04:
If the characteristics that would bring the product within the inquiry merchandise, is that the phrase, were, even if they were present in what was available, December 18, 2016, if they were hidden, then the answer should be different.

[00:33:15] Speaker 04:
Because obviously, if they're hidden, you can't expect the challengers to identify them.

[00:33:22] Speaker 04:
Can you address that here?

[00:33:24] Speaker 00:
Sure, of course, Your Honor.

[00:33:25] Speaker 00:
So the Trade Court properly considered that argument and rejected it.

[00:33:29] Speaker 00:
And they rejected it because there's no requirement in the statute or the regulations for Commerce to consider the subjective knowledge of a party alleging circumvention.

[00:33:39] Speaker 00:
And in Target Corporation, which is 609 FE 380,

[00:33:42] Speaker 00:
F3D 1352, the Federal Circuit actually went through, and that's cited by the coalition, and went through and said, commerce is test.

[00:33:52] Speaker 00:
The statute isn't clear.

[00:33:53] Speaker 00:
The regulations aren't clear.

[00:33:55] Speaker 00:
So we're not in Chevron Step 1.

[00:33:57] Speaker 00:
We're in Chevron Step 2.

[00:33:59] Speaker 00:
They said commerce is test was the presence in the market.

[00:34:02] Speaker 00:
And they found that to be reasonable.

[00:34:04] Speaker 00:
And the reason that it is presence and doesn't have a subjective.

[00:34:08] Speaker 04:
In Target or anywhere else where

[00:34:11] Speaker 04:
The ruling was made that the commerce's test was reasonable.

[00:34:19] Speaker 04:
Did anybody ever raise or the court address this question of hidden characteristics?

[00:34:25] Speaker 04:
Which seems to raise a quite different policy question.

[00:34:29] Speaker 00:
Not to our knowledge, Your Honor, and that is simply because that's not the test.

[00:34:34] Speaker 00:
So there was no reason to have ever raised that.

[00:34:37] Speaker 00:
And the reason being is otherwise, commerce's commercial availability test would be subject to manipulation.

[00:34:44] Speaker 04:
As a factual matter, could the coalition, if it had known about some of these pieces of lumber, plywood, have bought one, tested it, and figured out

[00:34:58] Speaker 04:
what was, in the respect we're talking about, what was inside?

[00:35:02] Speaker 00:
Correct.

[00:35:03] Speaker 00:
They could have.

[00:35:03] Speaker 00:
But more to your honor's point, the trade secret that they're addressing is the inclusion of melamine, which gave Shelter Forest's product its waterproof characteristics.

[00:35:14] Speaker 00:
And that wasn't actually in one of the three criteria that they defined as inquiry merchandise.

[00:35:19] Speaker 00:
So this trade secret is actually in there.

[00:35:20] Speaker 03:
Isn't that the answer to the question?

[00:35:22] Speaker 03:
Isn't that the answer to the question?

[00:35:24] Speaker 03:
Yes.

[00:35:25] Speaker 03:
I mean, who cares?

[00:35:26] Speaker 00:
Exactly, Your Honor.

[00:35:27] Speaker 03:
Excuse me, why are we talking about melamine?

[00:35:29] Speaker 03:
Why are we talking about waterproofness at all?

[00:35:32] Speaker 00:
That is actually, Your Honor, the exact answer to the question that it's

[00:35:36] Speaker 00:
Irrelevant and that's what that's what that's what this core management trade said correct Yes, your honor that melamine is irrelevant because you're looking at the underlying glue recipe and as shelter forest established a commerce that held the issue of melamine wasn't a completely separate production steps So it didn't even matter towards the trade secret.

[00:35:55] Speaker 00:
Um, I see I'm running out of time So I'm in fact in fact have run out of time.

[00:36:00] Speaker 04:
Yes, and I don't think we need to hear anything

[00:36:06] Speaker 01:
Your honor, it rebuttals shelter was aware of the data that commerce requested through the original questionnaires through the supplemental questionnaires.

[00:36:18] Speaker 01:
It was aware of the agencies precise requests and the supplemental questionnaires for resident component breakdown.

[00:36:25] Speaker 01:
It was Shelter's obligation to build a record in support of its claims.

[00:36:29] Speaker 04:
And I know, again, that any response needs to go ahead here.

[00:36:32] Speaker 04:
I'm interested in this point, that when, in the preliminary determination, Commerce said, here's what's

[00:36:43] Speaker 04:
unsatisfactory about the shelter evidence.

[00:36:46] Speaker 04:
It didn't say the reference to the base is insufficient to identify the ingredient list by percentage.

[00:36:57] Speaker 04:
It said it's not sufficiently documented that indeed your product actually does use this base.

[00:37:04] Speaker 04:
What do you say about that?

[00:37:08] Speaker 01:
I say that in its questionnaire, commerce was very clear that it

[00:37:17] Speaker 01:
where each statement was being made regarding the resin.

[00:37:22] Speaker 01:
And what Shelter provided were statements that we have a resin that is of this base, and that it provided some documents that say nothing about what the resin composition is at all.

[00:37:35] Speaker 06:
They filed something called it by a Zang declaration, right?

[00:37:50] Speaker 01:
what was in the declaration.

[00:37:51] Speaker 01:
I believe that was what Commerce was concerned with in the preliminary results.

[00:37:57] Speaker 01:
And in explaining why it was rejecting Shelter's late file data, Commerce noted that it had given Shelter, Shelter had multiple opportunities to supply information.

[00:38:08] Speaker 01:
And again, Shelter acknowledged in its own partial response to supplemental questionnaires that what Commerce was seeking was all possible documentation

[00:38:18] Speaker 01:
in support of Shelter's claims regarding resin, regarding everybody's claims regarding resin.

[00:38:25] Speaker 01:
Shelter sat on its hands even though it apparently had 100 pages of extra material it could have supplied.

[00:38:32] Speaker 01:
It chose not to do so.

[00:38:34] Speaker 01:
It's not the agency's job under 1677MD to cure that kind of decision on Shelter's part, particularly here where Shelter

[00:38:44] Speaker 01:
didn't make a move to supply this information until it was very late in the game, merely two weeks before the case briefs were due.

[00:38:53] Speaker 01:
With regard to some of the other information or argument by my colleagues, I don't think that the lack of the phrase under protest in commerce's remand results is particularly meaningful here.

[00:39:05] Speaker 01:
Commerce was under a court order.

[00:39:07] Speaker 01:
Of course, it applied with that order.

[00:39:09] Speaker 01:
Whether it uses a particular term of phrase,

[00:39:12] Speaker 01:
to signal disagreement with that order is not a particular moment in this appeal.

[00:39:20] Speaker 04:
Suppose in this case, Commerce had, after getting the trade court's initial order, said, we're under compulsion to do this, but in fact, having reconsidered the matter, we now will do this as a matter of our discretion.

[00:39:38] Speaker 04:
Would, at that point, we be reviewing the initial trade court remand decision?

[00:39:49] Speaker 01:
I'm not sure, Your Honor, but I also know those aren't the facts we have in front of us.

[00:39:55] Speaker 01:
I'd rather not speculate about the cases that aren't in front of the court.

[00:39:59] Speaker 01:
I'll just close by saying, as for the remand determination itself, we disagree with Mr. Tchenko's

[00:40:05] Speaker 01:
claims for the reasons that we detailed in our briefs.

[00:40:09] Speaker 01:
And with that, I'll close my argument.

[00:40:12] Speaker 04:
Thank you very much.