[00:00:00] Speaker 04:
The last case this morning is PT Kinnatech Power System versus the United States of the Wind Tower Trade Coalition, 2022-1408.

[00:00:11] Speaker 04:
Mr. DeFrancisco, when you are ready.

[00:00:19] Speaker 02:
Good morning, Your Honors.

[00:00:20] Speaker 02:
Robert DiFrancesco on behalf of the Appellant Mint Tower Trade Coalition.

[00:00:24] Speaker 02:
May it please the Court, this case involves two categories of errors by the Department of Commerce, resulting in what we believe is an unsupported determination with respect to the Indonesian government's provision of subsidies to Kenetech.

[00:00:37] Speaker 02:
First, we believe the Commerce Department erred when it found that there was no provision of cut-to-length plate for less than adequate remuneration, specifically as it relates to both the authorities' issue and entrustment and direction.

[00:00:50] Speaker 02:
Second, we believe the Commerce Department erred

[00:00:53] Speaker 02:
When in its recalculated upstream subsidy determination, it didn't conduct an investigation as it's required to under the statute.

[00:01:02] Speaker 02:
With respect to the cut to length plate issue, I'm going to start with the entrustment and direction points.

[00:01:10] Speaker 02:
We believe in the preliminary determination, the Commerce Department made an affirmative preliminary determination that Krakatau Pascoe was entrusted and directed by the Indonesian government for three reasons.

[00:01:22] Speaker 02:
that there's a national industrial plan, that Krakatau's parent company has significant influence over Krakatau Pasco, and the alignment of Krakatau Pasco's objectives with the governmental policies.

[00:01:36] Speaker 02:
After the affirmative preliminary determination, the Indonesian government submitted what it called a minor correction

[00:01:44] Speaker 02:
And it said, well, the steel cluster that Krakatau and Krakatau Pasco agreed to create pursuant to the master plan of the Indonesian government is not included in the master plan and is really just a commercial agreement.

[00:01:57] Speaker 02:
They termed that a minor correction.

[00:02:00] Speaker 02:
At the final, the Commerce Department said in light of that correction, they were reversing themselves based on their preliminary determination.

[00:02:10] Speaker 02:
We don't believe that reversal is supported by substantial evidence.

[00:02:14] Speaker 02:
The standard requires the Commerce Department to address evidence that fairly detracts from what they're relying on.

[00:02:21] Speaker 02:
Their entire reversal is based on this correction, and that correction is expressly contradicted by multiple pieces of evidence in the record, specifically

[00:02:32] Speaker 02:
In the 2018 annual report, Krakatoa-Pasco's annual report says explicitly, the Ministry of Industry had established the plan to boost the consumption of additional capacity to increase national steel production, the development plan to focus on high value added products to replace import such as automotive steel,

[00:02:53] Speaker 02:
Krakatau Pascoe will put most effort to realize master plan of national industry development 2015 to 2035 of the Republic of Indonesia vision by working together with Krakatau Steel to build 10 million tons of a steel cluster until in 2025.

[00:03:10] Speaker 02:
That's an appendix 7318.

[00:03:12] Speaker 02:
That expressly contradicts that clarification that was submitted after an affirmative preliminary determination.

[00:03:21] Speaker 02:
And nowhere in commerce's final determination do they grapple with that language.

[00:03:26] Speaker 02:
In the final determination, they merely state that the annual report expresses support for governmental policies.

[00:03:35] Speaker 02:
What I just read is more than support.

[00:03:37] Speaker 02:
What I just read is

[00:03:39] Speaker 02:
an indication that Krakatau-Pasco recognizes that there's a master plan, and they're going to work with Krakatau, the governmental authority, to execute and further that national plan.

[00:03:51] Speaker 02:
That is, by definition, entrustment and direction.

[00:03:55] Speaker 02:
Moreover, nowhere in the Commerce Department's final determination do they grapple with why they're accepting this clerical error when it's expressly contradicted, not just in the annual report,

[00:04:09] Speaker 02:
But even in the government of Indonesia's original questionnaire response, in their original questionnaire response to the Commerce Department, they say explicitly, the project is included in the master plan as part of the domestic steel industry's contribution to support the government of Indonesia's master plan to develop the industrial sector by 2035.

[00:04:32] Speaker 02:
That's at appendix 15307.

[00:04:37] Speaker 02:
Later in the correction, that was submitted, which is in Appendix 17462.

[00:04:47] Speaker 02:
If you go to page 17466, they identify three reads, they call it a clarification, and identify three points that they believe why it's not part of the national plan.

[00:04:59] Speaker 02:
Nowhere in here is there an explanation as to why they gave one answer before the prelim and a totally different answer after the prelim.

[00:05:07] Speaker 04:
But they did extensive fact finding, and we owe them deference.

[00:05:11] Speaker 04:
And they concluded that Krakatau-Pascal was making its own decisions.

[00:05:19] Speaker 02:
Your Honor, they did do extensive fact-finding and all of those facts that they relied on at the prelim related to the degree to which Krakatau and Krakatau Pasco, Krakatau is an authority, and Krakatau Pasco is influenced by its relationship with its parent steel company by the government of Indonesia.

[00:05:40] Speaker 02:
And the only piece of evidence

[00:05:43] Speaker 02:
that they relied on was this correction to reverse themselves.

[00:05:46] Speaker 02:
And then they went through each of the other pieces of evidence that they'd previously relied on to make an affirmative prelim and explain why they don't feel that this is sufficient any longer without actually grappling with the express contradictory evidence that's on the record.

[00:06:05] Speaker 02:
In fact, that annual report is prepared in 2018

[00:06:10] Speaker 02:
A year before any litigation occurred, it's prepared for Krakatau's deals shareholders, one of which is the government, and the public.

[00:06:20] Speaker 02:
And it's telling its shareholders and the public it is acting to further the Indonesian government's objectives.

[00:06:27] Speaker 02:
And now, only after an affirmative preliminary did the Indonesian government change its story, even after it had admitted in relation to that in a report, as it should have,

[00:06:40] Speaker 02:
The first answer was the answer that explicitly talked about the degree to which the national plan was part of, and they're acting in furtherance of that national plan.

[00:06:53] Speaker 02:
So on that basis alone, we believe the court should remand to commerce to address that evidence more specifically.

[00:07:03] Speaker 02:
But beyond that, as I mentioned earlier at the prelim,

[00:07:07] Speaker 02:
The Commerce Department found three factors as to why they thought there was some trust in the direction.

[00:07:11] Speaker 03:
I hate to interrupt you while you're on a roll here, but I just want you to know that many, many pages in the joint appendix don't have actual appendix numbers on them in the versions that we have.

[00:07:23] Speaker 03:
And so I just want to bring that to your attention.

[00:07:26] Speaker 03:
because it's a quality control problem.

[00:07:28] Speaker 03:
But you want to make sure that we're able to follow and look at the pages in the appendix and not have to dig through and find them without having the benefit of the page numbers, especially when the appendices volumes, there's so many of them.

[00:07:40] Speaker 02:
Thank you, Your Honor.

[00:07:41] Speaker 02:
I apologize for those issues.

[00:07:43] Speaker 03:
For future purposes, I highly recommend that people

[00:07:46] Speaker 03:
look at their appendix before they submit it to the court.

[00:07:49] Speaker 02:
Yes.

[00:07:49] Speaker 02:
Thank you.

[00:07:49] Speaker 02:
I appreciate that, Your Honor.

[00:07:52] Speaker 02:
To my other point, so in the prelim, again, there were three issues that the Commerce Department highlighted as to why they found it interesting in that direction.

[00:08:00] Speaker 02:
And the second one was that there is an ability of significant influence between Krakatau, the government authority, and Krakatau-Pascal.

[00:08:08] Speaker 02:
At the prelim, the department found that Krakatau-Pascal was not an authority.

[00:08:13] Speaker 02:
But yet they still found that there was an ability of Krakatau, the authority, to influence.

[00:08:20] Speaker 02:
And they had significant influence over the decision making of Krakatau-Pasco, despite the fact that they weren't an authority.

[00:08:27] Speaker 02:
They never address that point in their final determination, only to say in their final determination, well, Krakatau-Pasco is not an authority.

[00:08:36] Speaker 02:
And it's a private entity acting inside the steel cluster.

[00:08:39] Speaker 02:
That doesn't address why.

[00:08:43] Speaker 02:
They said that they had an ability to significantly influence the prelim, and that hasn't changed.

[00:08:48] Speaker 02:
The facts haven't changed.

[00:08:49] Speaker 02:
The facts of the structure of the organization that allows them to have significant influence, none of that's changed.

[00:08:55] Speaker 02:
The only thing that changed was that minor correction.

[00:08:59] Speaker 02:
Lastly, as part of what was in that correction, we heard about

[00:09:03] Speaker 02:
They actually claimed that there was five million tons of steel capacity at the time, and that hadn't changed.

[00:09:12] Speaker 02:
That's expressly, one, there was no evidence.

[00:09:17] Speaker 02:
You saw the submission.

[00:09:19] Speaker 02:
They never actually submitted the capacity figures for the companies.

[00:09:23] Speaker 02:
The government just said it.

[00:09:24] Speaker 02:
And there's actually evidence in the record that shows that it was more than 5 million tons that's not addressed anywhere.

[00:09:29] Speaker 02:
In addition, the Commerce Department goes into its brief and talks about, well, these statements about how there is a pattern in practice that we initially thought that the Indonesian government was stepping in to help the Indonesian steel industry.

[00:09:44] Speaker 02:
And we can see these different reports.

[00:09:46] Speaker 02:
Well, we disagree with that now.

[00:09:50] Speaker 02:
And there was an explanation that was provided, a verification that talked about, well, the support that was provided was really just in trade remedies cases and having these exhibitions.

[00:10:01] Speaker 02:
I mean, that's contradicted by the very fact that the Commerce Department initiated an upstream subsidy allegation that was based partly on a 2019 bailout of the Indonesian steel industry.

[00:10:14] Speaker 02:
So clearly, there's more subsidies and more influence by the Indonesian government that's being provided than just what was described by the government itself at verification.

[00:10:24] Speaker 02:
Lastly, with respect to the upstream subsidy claim, as we talked about in our brief, the Commerce Department is obligated, once it initiates an upstream subsidy analysis or investigation, it has to conduct an investigation.

[00:10:42] Speaker 02:
uses the words shall investigate 1677d1 talks about when commerce finds a program that it must also investigate that program 1671bg2 talks about when commerce can defer a upstream subsidy analysis but they're only allowed to defer the upstream subsidy investigation

[00:11:07] Speaker 02:
if there's going to be an administrative review, which means there must be an order in order for there to be an administrative review.

[00:11:14] Speaker 02:
If there's no order, then I have to conduct the investigation, which they did not do here.

[00:11:20] Speaker 02:
They sat on the initiation of the upstream subsidy investigation.

[00:11:24] Speaker 02:
Only at the final did they examine facts available, using facts available based on a subsidy analysis that was from 2010.

[00:11:33] Speaker 02:
The respondents themselves in the lower court before the voluntary remand was granted They argued to the lower court that no investigation took place So it's clear the commerce did not investigate the upstream subsidy analysis that as they should have we asked them to do that on remand

[00:11:51] Speaker 02:
to comply with the statute.

[00:11:53] Speaker 02:
And the Commerce Department did not do that.

[00:11:55] Speaker 02:
They simply accepted, just recalculated what was the old subsidy determination from 2010 and moved on, which is a violation of their statutory obligation to conduct an investigation.

[00:12:10] Speaker 04:
We will save your rebuttal time if you wish.

[00:12:13] Speaker 02:
Yes, please, Your Honor.

[00:12:17] Speaker 04:
Ms.

[00:12:18] Speaker 04:
Spett, you're going to take 10 minutes?

[00:12:21] Speaker 00:
Yes, Your Honor.

[00:12:23] Speaker 00:
Good morning, Your Honors.

[00:12:24] Speaker 00:
Elizabeth Speck for the United States, and we respectfully request that the Court affirm the judgment of the Court of International Trade.

[00:12:31] Speaker 00:
First, I want to address the entrustment direction argument presented by my opposing counsel, who claimed that the government's reversal of position from the preliminary to the final was just based on

[00:12:44] Speaker 00:
clarifications of the Indonesian government at verification.

[00:12:48] Speaker 00:
And that is not an accurate statement.

[00:12:50] Speaker 00:
Commerce explained in its decision that it had

[00:12:54] Speaker 00:
re-examined the arguments of the parties in the record.

[00:12:58] Speaker 00:
A big part of the reason why, again, as Commerce is permitted to do a preliminary determination is just that, a preliminary determination.

[00:13:08] Speaker 00:
Commerce explained that it had looked at the role of the board of directors versus the board of commissioners and had explained that it concluded that there was not control by the Indonesian government because of the role of the board of directors, which was controlled by PASCO.

[00:13:24] Speaker 00:
as the primary decision-making entity.

[00:13:28] Speaker 03:
That's the decision-making entity that makes the day-to-day determinations, is that right?

[00:13:32] Speaker 00:
Yes, Your Honor, and it also has the ability to bind the company.

[00:13:36] Speaker 00:
And that was the dispositive role.

[00:13:37] Speaker 00:
And that was not based on clarifications.

[00:13:41] Speaker 00:
Also, the fact that the RIPIN, or the master plan,

[00:13:46] Speaker 00:
that we've been referring to.

[00:13:47] Speaker 00:
That was always in the record.

[00:13:49] Speaker 00:
Specifically, it's at appendix, the relevant provisions are at appendix 15939 through 15941.

[00:13:57] Speaker 00:
And that explained that that does not specifically address the silicon steel cluster.

[00:14:05] Speaker 00:
That had always been in the record.

[00:14:07] Speaker 00:
And also, there is evidence in the government of Indonesia's second supplemental questionnaire, which is at appendix

[00:14:14] Speaker 00:
16461, which also stated that the silicon-steel cluster was a purely commercial transaction between crack-tile POSCO.

[00:14:27] Speaker 00:
Yes?

[00:14:27] Speaker 00:
Cracktile Posto and Cracktile Steel.

[00:14:30] Speaker 00:
So there was evidence in the record.

[00:14:32] Speaker 00:
And Commerce considered these to be minor corrections in terms of what they actually provided at verification, which was again explaining that it was a purely commercial transaction.

[00:14:47] Speaker 00:
They explained that it was that the, pardon me.

[00:14:53] Speaker 00:
that it was a purely, and this is the Appendix 17-489, and that the SEAL cluster was not mentioned in the national plan, which again was always in the record, and then that the SEAL goals remained the same regardless.

[00:15:08] Speaker 00:
And I would note that Commerce had also stated that its re-evaluation was based on the arguments of the parties.

[00:15:14] Speaker 00:
Certainly, KennerTech addressed

[00:15:18] Speaker 00:
In its brief before commerce, the steel goals remained the same, and that is at 17584 of the record in which it cited its support for the position that the steel goals remained the same.

[00:15:33] Speaker 00:
In terms of the arguments that Commerce did not consider record evidence, I think Commerce has provided a fulsome explanation here.

[00:15:42] Speaker 00:
And Commerce addressed the relevant record evidence.

[00:15:46] Speaker 00:
It addressed the annual report.

[00:15:48] Speaker 00:
It addressed the post article that the appellant raises.

[00:15:54] Speaker 00:
But importantly, even if the annual report did provide

[00:16:00] Speaker 00:
support for, did state that it supported the government of Indonesia's steel policies.

[00:16:05] Speaker 00:
Commerce did not find that it provided the requisite hook, because there wasn't evidence that the government of Indonesia was acting on those policies to entrust or direct PASCO to provide cut-to-length plate for less than adequate remuneration.

[00:16:24] Speaker 00:
Turning to the authority, again, Commerce is permitted to reconsider its position between the preliminary and the final.

[00:16:34] Speaker 00:
And here, Commerce explained why looking at the record evidence, specifically the joint venture agreement, the Articles of Incorporation,

[00:16:44] Speaker 00:
the various ownership arrangements, that it concluded that the board of directors was the relevant decision-making, was the primary decision-making authority for the entity, and that it was, in fact, in private control and not meaningfully controlled by the government of Indonesia.

[00:17:03] Speaker 00:
And one thing that they had highlighted in their brief was that there were provisions

[00:17:11] Speaker 00:
with the shareholder meetings that they could potentially take certain actions and those are specifically tied to violations of the joint venture agreement.

[00:17:23] Speaker 00:
Those are somewhat controlled.

[00:17:25] Speaker 00:
The board of commissioners certainly wouldn't have unfettered discretion to suspend a member of the board of directors.

[00:17:33] Speaker 00:
And finally, I want to turn to the upstream subsidy allegation.

[00:17:38] Speaker 00:
It's incorrect to say that the Department of Commerce did not conduct an investigation.

[00:17:43] Speaker 00:
As the Department of Commerce explained in its final decision memo and on remand, it did possess sufficient information from the questionnaire responses that were already submitted to

[00:17:58] Speaker 00:
make a call in terms of the requirements under 19 USC 1677-1A.

[00:18:04] Speaker 00:
It was able to conclude that there was a

[00:18:09] Speaker 00:
there was competitive benefit that had a significant effect on the manufacturing or production costs of the subject merchandise.

[00:18:19] Speaker 00:
Specifically, Commerce looked at Pentatex questionnaire responses, and specifically it looked at its purchases of cut-to-length plate from Posto as compared to other imported steel.

[00:18:33] Speaker 00:
and Commerce was able to analyze that further in its analysis memo, which contains business proprietary information.

[00:18:42] Speaker 00:
Again, I also want to highlight that before the Court of International Trade, the plaintiff or the Windtower Coalition argued, and this is at 18269 of the Joint Appendix,

[00:18:55] Speaker 00:
that commerce properly made an upstream subsidy finding based on facts otherwise available at the time of the final determination.

[00:19:04] Speaker 00:
And they also appeared to suggest at 18262 that commerce initiated an investigation.

[00:19:12] Speaker 00:
Their interpretation of the statute that commerce investigates only when it comes out with a subsidy that is affirmative is not a permissible construction or does not make sense.

[00:19:26] Speaker 00:
Commerce is certainly permitted to use adverse, to select from among the facts available when it concludes that information is missing from the record or that it cannot be verified.

[00:19:37] Speaker 00:
And here, Commerce looked at its existing, it looked at the CBD or the countervailing duty preamble, which expresses a preference for using existing recent subsidy determinations in performing that analysis.

[00:19:54] Speaker 00:
And finally, I just want to highlight that the limited nature of the remand from the court, certainly it 18286 contains

[00:20:04] Speaker 00:
The remand order, which was narrow, it remanded for only 30 days for Commerce to make a simple decision on whether or not the rediscount loan program was an export subsidy.

[00:20:15] Speaker 00:
And in any event, that does not change the fact that Commerce fulfilled its statutory responsibility to investigate and lawfully applied from among the facts available.

[00:20:25] Speaker 04:
Thank you, counsel.

[00:20:29] Speaker 04:
Mr. Wilson, can you utilize the rest of your time?

[00:20:34] Speaker 04:
So we'll give you seven minutes if you need it.

[00:20:37] Speaker 01:
Good afternoon.

[00:20:37] Speaker 01:
I guess it is, Your Honor.

[00:20:39] Speaker 01:
Dan Wilson from Arnold & Porter on behalf of Kinnertek, plaintiff epally in this case.

[00:20:45] Speaker 01:
We concur with the government's arguments regarding the less than adequate remuneration issue.

[00:20:50] Speaker 01:
With barring any questions for Kinnertek on that issue, we'd like to turn to the upstream subsidy analysis and offer a few additional points.

[00:20:58] Speaker 01:
First of all, we think that the statute did not prohibit commerce from reaching a negative determination when petitioners' late allegation left limited time for commerce to conduct additional fat-finding.

[00:21:10] Speaker 01:
Petitioners' primary argument is that 19 U.S.C.

[00:21:14] Speaker 01:
section 1671E

[00:21:15] Speaker 01:
requires Commerce shall investigate when it finds that munitions initiation standards are met.

[00:21:21] Speaker 01:
But that provision has to be looked at in the context of Commerce's statutory deadlines in these cases, which in this case were already fully extended for the final determination by the time that petitioner filed its upstream subsidy allegation after the prelim, nearly two months after the prelim was issued.

[00:21:41] Speaker 01:
So where petitioners file an upstream subsidy allegation that late in the investigation segment of a proceeding, they run the risk of commerce either deferring until any eventual administrative review, which is what commerce first did here under 19 USC section 1671 BG.

[00:21:59] Speaker 01:
And at that point, petitioner did have the opportunity to withdraw its petition and refile.

[00:22:05] Speaker 01:
under 19 CFR section 351 311 C which is mentioned in footnote 2 of the CIT's opinion here.

[00:22:15] Speaker 01:
That was a gamble that the petitioner didn't take or a move that the petitioner didn't take at that point after fully realizing that the department specifically said in the initiation memo that it was deferring because there was not enough time to conduct a full investigation.

[00:22:31] Speaker 01:
So at that point, Petitioner was under the impression that the department could only either defer, and if there was no review because there was no order, the statute specifically says any administrative review, which means there's a possibility that there wouldn't be an administrative review.

[00:22:49] Speaker 01:
And it seems to be then that his counsel's construction of the statute that they're not allowed

[00:22:57] Speaker 01:
defer in that case is absurd.

[00:23:00] Speaker 01:
So in this case, what we're dealing with is Congress's only ability to conduct a limited investigation, and Congress's determinations have to be based on substantial evidence.

[00:23:10] Speaker 01:
So if petitioners file a late allegation,

[00:23:14] Speaker 01:
They run the risk of Commerce not being able to develop the record, which is what happened here.

[00:23:17] Speaker 01:
So from countertext perspective, the department already did more than it should have by reconsidering the final determination to base its upstream subsidy analysis on a 20-year-old determination.

[00:23:29] Speaker 01:
But if Petitioner was concerned about the sufficiency of the allegation,

[00:23:33] Speaker 01:
They could have withdrawn the petition and refiled, and they chose not to.

[00:23:38] Speaker 01:
And that was the decision that led to the situation they face themselves in now.

[00:23:43] Speaker 01:
So as the CIT recognized, it's simply too late to force commerce to reopen the record.

[00:23:49] Speaker 01:
There's no reason to do so.

[00:23:50] Speaker 01:
The CIT was correct in declining that request, and this court should do so as well.

[00:23:56] Speaker 01:
And finally, we just wanted to focus briefly on petitioners' proposed alternative rates.

[00:24:02] Speaker 01:
They pointed to no statutory authority or case law or any administrative precedent arguing that commerce is somehow obligated to choose from other plugs that would have forced this case to go to an order when the only result that could happen under the record

[00:24:16] Speaker 01:
was a negative determination.

[00:24:18] Speaker 01:
For all the reasons we discussed in our brief, the subsidies that they proposed to use as a plug to get this case to order also had the export subsidy which is precluded by statute from being used in

[00:24:35] Speaker 01:
and up street society analysis.

[00:24:37] Speaker 01:
And finally, they've briefly mentioned other Pasco, Cracodile Pasco specific subsidies that just simply don't have enough detail to address in any substantive way.

[00:24:48] Speaker 01:
So for all of these reasons, we request that the court sustain the judgment of the CIT and Commerce's negative final determination on voluntary remand.

[00:24:57] Speaker 01:
Thank you very much.

[00:24:58] Speaker 04:
Thank you, counsel.

[00:25:00] Speaker 04:
Mr. DeFrancisco has a little rebuttal time.

[00:25:03] Speaker 02:
Thank you, your honor.

[00:25:06] Speaker 02:
Just specifically, I'm going to run through a few of the points you just heard.

[00:25:09] Speaker 02:
So with respect to the government of Indonesia's master plan and the lack of reference to the steel cluster in the master plan, the master plan does reference base metals and the need for supporting base metals.

[00:25:24] Speaker 02:
In the annual review, annual report that I read to you earlier

[00:25:32] Speaker 02:
They don't explicitly say that the cluster is part of the master plan.

[00:25:35] Speaker 02:
They say, we're producing this cluster.

[00:25:39] Speaker 02:
We're going to work with this cluster in cooperation with the governmental authority, which is Krakatau.

[00:25:46] Speaker 02:
And this goes to the point you heard earlier about.

[00:25:48] Speaker 02:
This is just a commercial agreement.

[00:25:50] Speaker 02:
One, we don't agree that it's just a commercial agreement.

[00:25:52] Speaker 02:
But beyond that.

[00:25:54] Speaker 02:
even if it were a commercial agreement.

[00:25:56] Speaker 02:
It's a commercial agreement between the government of Indonesia, i.e.

[00:26:00] Speaker 02:
Krakatau, and Krakatau Pascoe.

[00:26:03] Speaker 02:
Krakatau is a governmental authority.

[00:26:05] Speaker 02:
So Krakatau itself is the governmental authority.

[00:26:08] Speaker 02:
It is an agreement between the government of Indonesia and Krakatau Pascoe.

[00:26:14] Speaker 02:
Therefore, the government agreed with Krakatau Pascoe to increase the capacity and production to support downstream

[00:26:20] Speaker 02:
steel product to support downstream steel consumption for green energy.

[00:26:25] Speaker 02:
That is by definition and trustment and direction, which is exactly what the department found at the preliminary determination.

[00:26:32] Speaker 02:
The steel cluster was an endeavor by a governmental authority because it was an endeavor by Krakatau Steel, which is a public body and the Department of Commerce agrees that it's a public body and it's an authority.

[00:26:46] Speaker 02:
And commerce doesn't address this in its final determination.

[00:26:49] Speaker 02:
It does not address why it chose to view this differently than it did in the prelim.

[00:26:59] Speaker 02:
Going, what you heard earlier about the decision about whether they can influence, whether Krakatau can influence Krakatau-Pasco,

[00:27:07] Speaker 02:
The government was confusing the standards for what's an authority and what's entrustment and direction.

[00:27:14] Speaker 02:
Entrustment and direction is about, are you acting pursuant to a government policy?

[00:27:19] Speaker 02:
And can the government influence your actions?

[00:27:22] Speaker 02:
At the prelim, they found, despite the fact that we don't think you're an authority, for all the reasons you just heard, you do have an ability to influence decision making, which is expressly what they found at the prelim.

[00:27:35] Speaker 02:
Yet they don't address that in the final determination at all.

[00:27:38] Speaker 02:
They simply say, well, you're not an authority, therefore we're done here.

[00:27:43] Speaker 02:
Going to the upstream subsidy points, in the upstream subsidy allegation that was filed,

[00:27:49] Speaker 02:
We included both the 2010 subsidy determinations the Commerce Department made with respect to cut the length plate and a whole host of additional programs that were referenced publicly about the bailout for the Indonesian steel industry in 2019, debt restructuring, the provision of land for less than adequate remuneration, electricity for less than adequate remuneration.

[00:28:10] Speaker 02:
The Commerce Department, in its initiation, said, we're initiating, but we're going to defer it.

[00:28:16] Speaker 02:
They didn't say we're initiating on only these programs and not those programs.

[00:28:21] Speaker 02:
They were initiating, they were going to conduct an investigation and an administrative review if they got to one, which they never got to.

[00:28:26] Speaker 02:
And they had an obligation to at least investigate.

[00:28:29] Speaker 02:
We filed that allegation in a timely manner pursuant to the Department of Commerce's rules.

[00:28:35] Speaker 02:
And it was something that they could have and should have investigated once they took that remand.

[00:28:40] Speaker 02:
They had an obligation to do that.

[00:28:42] Speaker 02:
Your Honor, I see my lights expired.

[00:28:44] Speaker 02:
If there's no other questions, I'm happy to sit down and let everybody get to lunch.

[00:28:47] Speaker 04:
Thank you, counsel.

[00:28:49] Speaker 04:
We appreciate all the arguments.

[00:28:51] Speaker 04:
The case is submitted, and that concludes our arguments for today.