[00:00:00] Speaker 04:
The second case is Protein Coiled Mail Enterprise and Unicatch, which is the United States' mid-continent steel wire.

[00:00:13] Speaker 04:
2022-2241.

[00:00:15] Speaker 04:
Mr. Maschak.

[00:00:20] Speaker 02:
Good morning, Your Honor.

[00:00:22] Speaker 02:
This is Annual Review 1 of the Taiwan Order.

[00:00:26] Speaker 02:
We can continue with what we were talking about when you were talking about annual review for and the AFA rate.

[00:00:33] Speaker 02:
for the non-selected respondents, which we think is an AR4 directly contrary to law, an AR1 directly contrary to law and law here is based on your court's decision in best fact of 2013, and also on the statement of administrative action, which talks about if it resulted in an average that would not be reasonably reflective of potential anti-dumping margins.

[00:00:59] Speaker 02:
for non-investigated exporters and producers.

[00:01:02] Speaker 02:
Commerce may use other reasonable methods.

[00:01:05] Speaker 02:
That's the SAA.

[00:01:07] Speaker 02:
I was here 11 years ago in Bestpac.

[00:01:09] Speaker 02:
And in Bestpac, we had the same situation.

[00:01:12] Speaker 02:
We had a zero rate, and we had an AFA rate.

[00:01:15] Speaker 02:
And the court, very, very clearly, without having us put on additional evidence, said, and I'll quote, assigning a non-mandatory separate rate respondent a margin equal to over 120% of the only fully-investigated respondent.

[00:01:29] Speaker 02:
whose cultural iterate was zero with no other information is unjustifiably high and may amount to being punitive, which is not permitted by the statute.

[00:01:38] Speaker 02:
That's best-packed.

[00:01:39] Speaker 02:
There are multiple CIT cases.

[00:01:41] Speaker 02:
Afterwards, there's Gallant Ocean saying cooperative

[00:01:44] Speaker 02:
A non-cooperative respondent can't get a punitive rate.

[00:01:48] Speaker 02:
So this is commercial reality for respondents who are cooperating.

[00:01:53] Speaker 02:
It cannot use this expected method.

[00:01:56] Speaker 02:
It's not expected.

[00:01:57] Speaker 02:
It has to be reasonable, and it's based on best pack, which I think is controlling precedent and excellent analysis, which is still the law.

[00:02:08] Speaker 02:
But that's the part of it you were talking about before.

[00:02:10] Speaker 02:
I want to get into Unicatch.

[00:02:14] Speaker 02:
And Unicatch did receive an adverse facts available rate.

[00:02:17] Speaker 02:
Not only did it receive an adverse facts available rate, it had total AFA.

[00:02:23] Speaker 02:
They ignored all of the evidence that we put on the record.

[00:02:26] Speaker 02:
And it wasn't just total AFA.

[00:02:28] Speaker 02:
It was total AFA at the most punitive rate, which was 78.17%.

[00:02:33] Speaker 02:
And what I'd like to do is

[00:02:37] Speaker 02:
talk about what commerce should be doing when it has a respondent who has made a mistake.

[00:02:45] Speaker 02:
And you have a respondent who made a mistake, whether it's facts available, adverse facts available, or even total adverse facts available.

[00:02:52] Speaker 02:
It's a weighing process.

[00:02:54] Speaker 02:
And it's a weighing process based on this court's decision in BMW and DSL.

[00:03:02] Speaker 02:
And BMW, I believe, is a critical case here.

[00:03:06] Speaker 02:
In BMW, you have a respondent who made a mistake, who missed a deadline, adverse facts available.

[00:03:14] Speaker 02:
But it came up to this court, and the court said the purpose of the law, and I'll quote, is not to impose punitive, aberrational, or uncooperated margins.

[00:03:24] Speaker 02:
The AFA rate is intended to be a reasonably accurate estimate of the respondent's actual rate, albeit with some built-in increase intended as a deterrent to noncompliance.

[00:03:37] Speaker 02:
While a higher average margin creates a stronger deterrence, commerce must not overreach reality in seeking to maximize deterrence.

[00:03:46] Speaker 02:
So that's BMW.

[00:03:47] Speaker 02:
We believe that's controlling law.

[00:03:49] Speaker 02:
And when we apply BMW and the Acero and the paper Frederick decision to the facts and circumstances and totality of the evidence to our client Unicatch, we believe that Unicatch on the scale of wrongdoing

[00:04:06] Speaker 02:
Unicatch is very, very low.

[00:04:08] Speaker 02:
On the scale of rates, it was the death penalty.

[00:04:13] Speaker 02:
So when you have low culpability, when you have no willful action in our part, clearly not willful, we messed up.

[00:04:22] Speaker 02:
We did not complete a course reconciliation in the manner that commerce was expecting us to do that.

[00:04:29] Speaker 02:
There was no question.

[00:04:31] Speaker 02:
There was no question

[00:04:33] Speaker 02:
that they asked us again, but very cryptically.

[00:04:35] Speaker 02:
And then they asked us again cryptically.

[00:04:37] Speaker 02:
But when they were asking us these cryptic questions, these one long questions, it wasn't just asking us on this particular point.

[00:04:45] Speaker 02:
They were throwing bombs at us.

[00:04:48] Speaker 02:
20, 30, 40, 50 questions.

[00:04:50] Speaker 02:
This was one of many questions.

[00:04:53] Speaker 02:
And we didn't give them what they wanted.

[00:04:56] Speaker 02:
Significantly,

[00:04:58] Speaker 02:
When they issued their preliminary determination, they accepted our data.

[00:05:03] Speaker 02:
And in the last supplemental questionnaire that they sent us, they didn't ask this question again.

[00:05:08] Speaker 02:
So they accepted our data.

[00:05:11] Speaker 02:
They didn't ask the question again in the last supplemental.

[00:05:15] Speaker 02:
Petitioners, when they were arguing for AFA before the preliminary, they didn't bring this up.

[00:05:21] Speaker 02:
So this was one of many points, the course reconciliation.

[00:05:26] Speaker 02:
Were we perfect?

[00:05:27] Speaker 02:
No.

[00:05:28] Speaker 02:
Another important point is that after our case, when you look at other cases and when you look what commerce did, and this is the appendix at 6495, in other cases afterwards, commerce realized for a very complex course reconciliation, you should have a chart with a beginning and an ending and everything that's in between.

[00:05:53] Speaker 02:
And they've used that.

[00:05:55] Speaker 02:
in other cases.

[00:05:56] Speaker 02:
And the other thing that Commerce has done, in other cases, what the courts have done, and when the courts have said total AFA is acceptable, the courts have said that Commerce has given this chart, and the company wasn't able to fill out the charts correctly.

[00:06:15] Speaker 02:
So we didn't get the chart.

[00:06:17] Speaker 02:
We didn't know that this was going to be the purpose, you know, the linchpin of Commerce's

[00:06:24] Speaker 02:
decision, and we got sandbagged.

[00:06:28] Speaker 02:
Again, we're not perfect, but we got sandbagged.

[00:06:32] Speaker 02:
Again, we're at the bottom level of the wrongdoers and the top level of the AFA rate.

[00:06:39] Speaker 02:
And that gets me into the AFA rate, which is kind of what you were talking about in the first argument.

[00:06:45] Speaker 02:
It's a 78.17% rate.

[00:06:49] Speaker 02:
Now, where does this rate come from?

[00:06:51] Speaker 02:
This rate comes from the investigation.

[00:06:53] Speaker 02:
It's a rate that petitioner puts on the record based on data in 2013.

[00:06:57] Speaker 02:
In annual review one, what commerce did is they corroborate, or they said they were corroborating this rate.

[00:07:06] Speaker 02:
Now, how did they corroborate the rate?

[00:07:08] Speaker 02:
In annual review one, when it went back on remand, what they did, they look at the data on the record from the other respondent,

[00:07:18] Speaker 02:
And they said the 78.717 rate is less than the rate for certain sales of the other respondent in AR1.

[00:07:29] Speaker 02:
But look at the record.

[00:07:30] Speaker 02:
Look what they said was corroborating.

[00:07:32] Speaker 02:
There were two sales that they said were corroborating.

[00:07:36] Speaker 02:
The two sales were at rates of 189%.

[00:07:41] Speaker 02:
So they took these two sales out of Sales and Pro Teams database, because they used that for corroboration, of 12,541 sales, .016%.

[00:07:54] Speaker 02:
The value of those two sales was $974 out of $35 million.

[00:08:00] Speaker 02:
The quantity was 2,000 kilograms out of 22 million kilograms.

[00:08:08] Speaker 02:
The next highest rate

[00:08:11] Speaker 02:
is 19.83 percent.

[00:08:14] Speaker 02:
So they're taking this 76, 78.17 rate.

[00:08:18] Speaker 02:
They're saying it's corroborating because there's two sales here, but it doesn't come close to the meaning of corroboration.

[00:08:27] Speaker 02:
This is an, and I'm using the language of the Court of International Trade in many cases, they've overreached reality.

[00:08:34] Speaker 02:
It's uniquely extreme overreach.

[00:08:37] Speaker 02:
It's a minuscule percentage, an extreme outlier.

[00:08:40] Speaker 02:
So what we're saying is the 78.7 rate just is not valid.

[00:08:46] Speaker 02:
It's not valid in this case, and it wouldn't be valid in AR4, but it's not valid in this case.

[00:08:54] Speaker 02:
It's from outer space.

[00:08:56] Speaker 02:
It's from 2013 corroborated by two absolutely outlawing sales from the database.

[00:09:04] Speaker 02:
And so the rates from outer space

[00:09:08] Speaker 02:
Or what we've done is we didn't complete an analysis.

[00:09:13] Speaker 02:
And when you look at the analysis, again, I'm saying, were we perfect?

[00:09:17] Speaker 02:
No.

[00:09:18] Speaker 02:
But our analysis was that we put on the record all of the underlying data to complete this chart.

[00:09:27] Speaker 02:
We put on our product-specific costs.

[00:09:31] Speaker 02:
We conformed our product-specific costs to a financial statement.

[00:09:35] Speaker 02:
Then we put in our costs that were on in our database on the material costs, the labor costs, energy costs, and we showed exactly what the costs were, but we didn't finish.

[00:09:51] Speaker 02:
We didn't put on 10 additional lines in our reconciliation.

[00:09:56] Speaker 03:
What do you make of anything?

[00:09:59] Speaker 03:
out of the fact that the Commerce III supplemental request didn't mention this deficiency.

[00:10:08] Speaker 02:
I make a lot out of it.

[00:10:12] Speaker 02:
Look, I think what happened was you had first supplemental request, they mentioned it.

[00:10:17] Speaker 02:
The second, they mentioned it in a cryptic manner.

[00:10:19] Speaker 02:
The third supplemental, they didn't mention it at all.

[00:10:22] Speaker 02:
And then right after the third supplemental, you have the preliminary determination where they calculated based on our rate.

[00:10:28] Speaker 02:
I think, and you know, I shouldn't, I guess, but I'm going to speculate before the court that the analysts who were handling this case were perfectly satisfied.

[00:10:37] Speaker 02:
They understood the data that was on the record.

[00:10:40] Speaker 02:
And somebody somewhere, and I know they're allowed to change their minds, it's just a preliminary, but in this case it's a preliminary where you accept something, there are no additional facts, and in the final you're flipping from a calculated rate where they're basing

[00:10:58] Speaker 02:
our margin on all our data, all our good data, flipping and saying none of our data is any good.

[00:11:05] Speaker 02:
So somebody someplace had a change of heart.

[00:11:08] Speaker 02:
I don't know who, but you shouldn't do that.

[00:11:13] Speaker 02:
You don't have a death, you don't give somebody the death penalty after you originally say it's okay and then you don't have any, you don't find any additional facts to say it's bad.

[00:11:26] Speaker 02:
It wasn't complete originally, but somebody in commerce, the people who were looking at the data, thought it was enough.

[00:11:33] Speaker 02:
And they thought it was enough that they accepted it.

[00:11:36] Speaker 02:
And then commerce didn't follow up.

[00:11:38] Speaker 02:
Look, what commerce could have done in this case, and they could have given us a chart

[00:11:46] Speaker 02:
like they did in all the other annual reviews, which they've used for AFA purposes.

[00:11:52] Speaker 02:
When the court has affirmed AFA, they said you didn't look at this chart.

[00:11:57] Speaker 02:
They didn't give us the chart, which would have been enough.

[00:12:00] Speaker 02:
They could have said in the supplemental where they didn't ask the question, because the supplemental where they didn't ask the question, it was one question.

[00:12:09] Speaker 02:
They could have made it two questions.

[00:12:11] Speaker 02:
And you bet, if we would have seen two questions, we would have got it.

[00:12:15] Speaker 02:
Or they could have given us a call.

[00:12:18] Speaker 02:
They could have done all these things, but it appeared that this wasn't an issue.

[00:12:23] Speaker 02:
Again, when we were answering the supplementals, where we made, where we didn't give them exactly what they wanted, it wasn't just this one question.

[00:12:33] Speaker 02:
It was hundreds of questions in the first, in the second,

[00:12:38] Speaker 02:
And petitioner was throwing all kinds of allegations at us.

[00:12:42] Speaker 02:
And we were responding.

[00:12:44] Speaker 02:
Again, we're dodging bullets in the fog of war.

[00:12:46] Speaker 02:
We missed something.

[00:12:47] Speaker 04:
Well, I don't quite hear from the government.

[00:12:50] Speaker 04:
Thank you, Your Honor.

[00:12:51] Speaker 04:
Captain Rance was in the same department.

[00:12:55] Speaker 04:
Miss Day.

[00:13:01] Speaker 00:
May it please the court, we respectfully request that this court affirm the trial court's judgment.

[00:13:06] Speaker 00:
I'd like to start by pointing out this court's decision in Maverick Tube from a few years ago because that case is exactly on point.

[00:13:14] Speaker 00:
In Maverick Tube, the court

[00:13:16] Speaker 00:
explicitly stated that the respondent effectively concedes that it possessed information necessary to commerce's investigation, that commerce requested that information, and that the respondent did not provide that information.

[00:13:30] Speaker 00:
Such behavior cannot be considered maximum effort to provide commerce with full and complete answers.

[00:13:36] Speaker 03:
And that's exactly what happened here by Council's... Well, there's one distinction, and that is that in the third supplemental questionnaire,

[00:13:44] Speaker 03:
commerce didn't ask or indicate that the reconciliation information was inadequate.

[00:13:52] Speaker 03:
What are we to make of that?

[00:13:53] Speaker 03:
It seems kind of odd on the face of it.

[00:13:57] Speaker 03:
Wait, let me finish.

[00:13:59] Speaker 03:
On the face of it, there was this complaint about the reconciliation data, responses to it, and then in the third request, there's no mention that Thomas found it unsatisfactory.

[00:14:11] Speaker 00:
So there are a few reasons why Commerce not mentioning it in that third supplemental questionnaire shouldn't be dispositive over whether AFA was warranted.

[00:14:22] Speaker 00:
First of all, under the statute, Commerce wasn't required to give them a fourth bite at the apple.

[00:14:26] Speaker 00:
They already had three chances to respond to Commerce's questions and failed to completely do so.

[00:14:33] Speaker 00:
Moreover, I can't speculate as to why Commerce didn't

[00:14:38] Speaker 00:
didn't ask him about it in this third supplemental questionnaire, but my supposition is that at that point they didn't have time to fully analyze and interpret that data, which is again why they actually used a calculated rate in the preliminary results, and it was only when Commerce tried to do Unicatch's job for it and actually tried to conduct this reconciliation itself,

[00:15:00] Speaker 00:
And that is detailed at pages 6309 to 6310 of the appendix.

[00:15:08] Speaker 00:
Commerce, using the roadmap that Unicatch gave it, tried to finish this reconciliation, tried to fill the gap in the record, went above and beyond, and still couldn't do it.

[00:15:17] Speaker 00:
So given that, it's clear that there was information missing from the record.

[00:15:21] Speaker 00:
It's clear that Commerce gave

[00:15:24] Speaker 00:
Unicatch three separate chances to look at it and it's clear that regardless of intention or motivation as Mipun still says commerce can still apply AFA if it reasonably expected more and if it's thought that Unicatch was not acting to the maximum extent of its ability.

[00:15:44] Speaker 00:
I'd like to move to corroboration.

[00:15:48] Speaker 00:
I think that Mr. Marschak has a little bit of a mischaracterization of what corroboration requires here.

[00:15:57] Speaker 00:
Corroboration only requires that commerce satisfy itself using resources that are practically at its disposal, that this rate has some probative value.

[00:16:07] Speaker 00:
It does not need to show commercial reality.

[00:16:09] Speaker 00:
And that's a really important distinction here.

[00:16:12] Speaker 00:
Mr. Marschak mentioned a few times commercial reality, commercial reality.

[00:16:15] Speaker 00:
But the statute was recently amended

[00:16:18] Speaker 00:
to explicitly not require commerce to show that the AFA rate reflects a non-cooperating respondent's commercial reality.

[00:16:27] Speaker 00:
All it needs to do is corroborate that information to make sure that that information is probative, has some relevance, and it did that here.

[00:16:35] Speaker 00:
It used the transactions

[00:16:37] Speaker 00:
specific method, which has been countenance by this court in multiple places, most importantly and recently in the Papier-Fabrique case.

[00:16:45] Speaker 00:
And again, in Papier-Fabrique, this court held that it doesn't matter if the margins are very high or if it only represents a small amount of sales, that in and of itself is not enough to show that those margins are aberrational.

[00:16:59] Speaker 00:
And that's exactly what happened here.

[00:17:01] Speaker 00:
Unicatch did not point out there's any reason for these sales to be considered.

[00:17:05] Speaker 00:
to be aberrational in terms of them having strange terms or being made outside of the ordinary course of business.

[00:17:10] Speaker 00:
All they can say is that it's too high and it's too few.

[00:17:14] Speaker 00:
But this court has said in Pepe Afabrik that that is not the standard for determining whether something is aberrant.

[00:17:22] Speaker 00:
And finally, it's important to note that not only did Commerce use this transaction-specific method, which would have been enough on its own, it also double corroborated using the component method.

[00:17:33] Speaker 00:
So certainly, if one method wasn't enough, using two very different methods that both showed corroboration should be.

[00:17:40] Speaker 00:
And as long as this rate is properly corroborated, Commerce has acted within its discretion, and the rate is not considered to be punitive.

[00:17:49] Speaker 00:
I'll just conclude by talking a little bit about the application of the all others rate.

[00:17:53] Speaker 00:
I know we just spent several minutes talking about it with regard to the fourth review period, but here we'll talk about it a little bit in this context.

[00:18:02] Speaker 00:
One is that Mr. Marchak and Unicatch's reliance on best pack is limited despite what they might have the court think because in best pack the court explicitly said that AFA rates

[00:18:15] Speaker 00:
can be considered in calculating the all others rate and in best pack importantly commerce departed from the expected method.

[00:18:22] Speaker 00:
Here they exactly adhere to the expected method.

[00:18:25] Speaker 00:
They took PT zero percent rate and they took bonuses and unit catches AFA rates and they weight average those together to come up with a 35% AFA rate.

[00:18:37] Speaker 00:
This is exactly what Congress contemplated when it says in the absence of non-zero calculated rates

[00:18:43] Speaker 00:
The expected thing for commerce to do is to weight average AFA, zero, and de minimis rates.

[00:18:50] Speaker 00:
That's exactly what happened here.

[00:18:51] Speaker 00:
And Unicatch has not, sorry, not Unicatch, but Hoerling and Romp have not demonstrated that this rate would not be reasonably reflected of their dumping behavior.

[00:19:01] Speaker 00:
I'm happy to answer any other questions the court might have.

[00:19:04] Speaker 00:
Otherwise, I'll cede the rest of my time to Mr. Gordon.

[00:19:09] Speaker 04:
Thank you, Mr. Gordon.

[00:19:20] Speaker 01:
Thank you, sir.

[00:19:21] Speaker 01:
Thank you, Your Honors.

[00:19:22] Speaker 01:
I'd like to pick up on an area of inquiry from you, Judge Dyke.

[00:19:28] Speaker 01:
You asked what to make of the fact that the third supplemental response didn't, again, ask about the cost reconciliation errors.

[00:19:36] Speaker 01:
I think it's important to take a little half step back.

[00:19:39] Speaker 01:
Think about some of the comments that Mr. Marshak made in his opening talking about how commerce was asking so many questions.

[00:19:46] Speaker 01:
Questions about this, questions about this.

[00:19:48] Speaker 01:
I think they were coming like bombs.

[00:19:49] Speaker 01:
I heard that phrase.

[00:19:51] Speaker 01:
What does that reflect?

[00:19:54] Speaker 01:
That reflects the fact that the responses commerce was dealing with had a lot of problems.

[00:19:59] Speaker 01:
highly flawed.

[00:20:00] Speaker 01:
If you look at our case brief, we briefed on over half a dozen different bases for supporting a determination of adverse facts available.

[00:20:10] Speaker 01:
So it's no surprise that commerce wouldn't necessarily have all the time necessary to get into the cause of reconciliation again.

[00:20:18] Speaker 01:
They had asked for it three times.

[00:20:19] Speaker 01:
How many times do they have to ask for it?

[00:20:22] Speaker 01:
You know, one bite of the apple is all they need to give a respondent.

[00:20:25] Speaker 01:
And yet they had done it three times.

[00:20:26] Speaker 01:
And in fact, as Ms.

[00:20:27] Speaker 01:
Bay pointed out, even after the preliminary determinate results, they tried to do the respondent's job for them.

[00:20:34] Speaker 01:
And it was when they tried to complete the cost reconciliation that they started really unpacking the problems there and seeing just how severe the problems in the cost reconciliation exercise were.

[00:20:45] Speaker 01:
If you read their issues and decision memorandum, it highlights that

[00:20:49] Speaker 01:
very clearly.

[00:20:52] Speaker 01:
So I think it's also important to note that what we're talking about here, the cost reconciliation, it's not as if the respondent merely misreported the distance for their foreign and inland freight.

[00:21:08] Speaker 01:
The cost reconciliation goes to the heart

[00:21:12] Speaker 01:
of the anti-dumping analysis.

[00:21:14] Speaker 01:
If you can't validate a respondent's reported costs, you can't trust their data.

[00:21:21] Speaker 01:
It's unreliable.

[00:21:23] Speaker 01:
And they have very experienced counsel who worked with them throughout the entire process.

[00:21:29] Speaker 01:
They know what they're doing.

[00:21:30] Speaker 01:
And being asked three times for this, and we briefed on it.

[00:21:35] Speaker 01:
And after the briefing, Commerce started trying to do the respondent's job for them, only to find, wow, there are a lot of problems here.

[00:21:42] Speaker 03:
It goes to the heart of the analysis.

[00:21:53] Speaker 01:
Well, they asked for it in the original questionnaire, then they asked for it in the first supplemental questionnaire, then they asked for it in the second supplemental questionnaire.

[00:21:59] Speaker 01:
That's three times.

[00:22:01] Speaker 03:
They've indicated dissatisfaction to a case.

[00:22:04] Speaker 01:
But they requested a complete cost reconciliation three times.

[00:22:08] Speaker 01:
And then they highlighted the myriad deficiencies twice.

[00:22:11] Speaker 01:
If that's not enough to put them on notice that they need to clean up their act and get it on the record correctly, I don't know what is.

[00:22:18] Speaker 01:
So my point here is that this goes to the heart of the analysis.

[00:22:23] Speaker 03:
I guess the problem is that they perhaps thought that they had cleaned up their act.

[00:22:28] Speaker 03:
Because the third supplemental request didn't, anymore, request any further information about reconciliation.

[00:22:36] Speaker 01:
Well, as Mr. Marshak has admitted here in open court, they messed up.

[00:22:42] Speaker 01:
And the statute doesn't require culpability.

[00:22:45] Speaker 01:
It doesn't require mens rea.

[00:22:47] Speaker 01:
It requires a demonstration, which commerce has successfully made, that the respondent failed to act to the best of its ability to cooperate with requests for necessary information.

[00:22:57] Speaker 01:
That's exactly what happened here.

[00:22:59] Speaker 04:
He says I made a small mistake in death penalty.

[00:23:06] Speaker 01:
That's not the case, Your Honor.

[00:23:07] Speaker 01:
That's hyperbolic.

[00:23:09] Speaker 01:
It's not a small mistake, because when you think about, as I said, the cost reconciliation goes to the heart of the reliability of a respondent's data.

[00:23:16] Speaker 01:
And the death penalty, well, as we've talked about here, the AFA rate was absolutely well known.

[00:23:23] Speaker 01:
It came from the petition.

[00:23:24] Speaker 01:
Everyone knows that's what it does.

[00:23:26] Speaker 01:
It's not like it's a new idea.

[00:23:28] Speaker 01:
So they knew it was coming.

[00:23:31] Speaker 03:
But there's no contention here that they did it.

[00:23:34] Speaker 03:
was an intentional failure to cooperate, right?

[00:23:37] Speaker 03:
It doesn't need to be intentional.

[00:23:39] Speaker 03:
I understand, but isn't that is a relevant consideration, isn't it, in determining whether to apply an AFA?

[00:23:47] Speaker 01:
a failure to cooperate by failing to act to the best of their ability with requests for necessary information.

[00:23:51] Speaker 01:
That's what the statute requires.

[00:23:53] Speaker 01:
I've seen a lot of things in my day, Your Honor.

[00:23:55] Speaker 01:
I can't speculate as to what, you know, Respondent's counsel was or wasn't doing.

[00:23:59] Speaker 01:
I mean, I just don't know.

[00:24:00] Speaker 01:
And that's why the statute doesn't require a showing of intent.

[00:24:03] Speaker 03:
OK, but the cases say that's a factor to be considered in determining whether to apply an AFA with, right?

[00:24:10] Speaker 01:
Yes, but here, you know, because it goes to the heart of the analysis, as I said, it's not a small

[00:24:17] Speaker 01:
It's not a small flaw.

[00:24:18] Speaker 01:
It's not like commerce decided to reject their data because they failed to report a movement expense.

[00:24:25] Speaker 01:
They can't rely on the data because they couldn't complete the cost reconciliation.

[00:24:28] Speaker 01:
It's like a corporation going through an audit and having the auditors have to give a qualified opinion.

[00:24:33] Speaker 01:
You can't trust the data.

[00:24:35] Speaker 01:
What would the market do to a company like that?

[00:24:39] Speaker 01:
So with that, Your Honor, we would respectfully urge the court to affirm.

[00:24:43] Speaker 01:
This is, again, in our opinion, a straightforward matter.

[00:24:46] Speaker 01:
And we request that the court would affirm the trade court.

[00:24:49] Speaker 01:
Thank you.

[00:24:50] Speaker 04:
Thank you.

[00:24:51] Speaker 04:
We appreciate all the arguments.

[00:24:53] Speaker 04:
The case is submitted.

[00:24:55] Speaker 03:
Yes.

[00:24:59] Speaker 04:
I beg your pardon.

[00:25:01] Speaker 04:
Mr. Masher, please make a rebuttal.

[00:25:07] Speaker 02:
Thank you, your honor.

[00:25:08] Speaker 02:
I'll be short because I don't have much time.

[00:25:11] Speaker 02:
The first thing is, you know, council is talking.

[00:25:14] Speaker 02:
I don't know what else commerce would have done or should have done.

[00:25:18] Speaker 02:
Very, very simple.

[00:25:20] Speaker 02:
Look at pages 6489 through 6495 of the appendix.

[00:25:25] Speaker 02:
After this case, what commerce did is they gave the chart.

[00:25:30] Speaker 02:
They gave the template.

[00:25:31] Speaker 02:
And they gave the template in other cases.

[00:25:33] Speaker 02:
In other cases where this court has affirmed total IFA, it's because that respondents have not followed the template.

[00:25:41] Speaker 02:
Next was our mistake small.

[00:25:46] Speaker 02:
We're not saying that the course reconciliation is important.

[00:25:50] Speaker 02:
It's very important.

[00:25:52] Speaker 02:
But when you look at the degree of culpability, you determine whether it's willful or

[00:25:58] Speaker 02:
whether we're trying to do something, and I'll look at paper fabric, which Council for the Government talks about.

[00:26:05] Speaker 02:
And there, the Court sustained Congress's reliance, based on what the CAF said, extraordinarily factual situation posed by this case.

[00:26:16] Speaker 02:
Respondents fail to cooperate, consists of misconduct so serious that it undermines the very integrity of the proceeding.

[00:26:25] Speaker 02:
Based on this extraordinary record, Commerce was within its discretion selecting a rate with a substantial built-in increase.

[00:26:34] Speaker 02:
Extraordinary record, undermines the very integrity

[00:26:39] Speaker 02:
We tried.

[00:26:40] Speaker 02:
There's no question.

[00:26:42] Speaker 02:
We tried our best.

[00:26:44] Speaker 02:
We didn't put in the end of the chart.

[00:26:49] Speaker 02:
The data is there.

[00:26:51] Speaker 02:
And commerce

[00:26:53] Speaker 02:
They accepted the data for the preliminary.

[00:26:55] Speaker 02:
Now, they very easily, and they've done this in the past, and in this case, for another respondent, they said total AFA in the preliminary.

[00:27:06] Speaker 02:
And that had been reversed.

[00:27:08] Speaker 02:
That was reversed by the CIT.

[00:27:09] Speaker 02:
For us, they accepted our data for the preliminary.

[00:27:13] Speaker 02:
They looked at it.

[00:27:15] Speaker 02:
They got it.

[00:27:16] Speaker 02:
And then it was reversed again without giving us the question in the third supplemental.

[00:27:24] Speaker 02:
And as far as, you know, looking at the entire record, that the fact that we got a lot of questions was our own fault, this happens in all cases.

[00:27:31] Speaker 02:
In all cases, you file a questionnaire, you get

[00:27:35] Speaker 02:
20, 30, 40, 50 questions and supplementals from the Commerce Department.

[00:27:40] Speaker 02:
You try your best.

[00:27:41] Speaker 02:
Sometimes you miss.

[00:27:43] Speaker 02:
Sometimes you don't do things exactly correctly here.

[00:27:47] Speaker 02:
We missed on finishing the course reconciliation chart and instead of kind of

[00:27:54] Speaker 02:
giving us the template instead of asking us the third supplemental questionnaire.

[00:28:01] Speaker 02:
Commerce basically threw the book at us at the end of the day.

[00:28:05] Speaker 02:
And that total AFA at a punitive 78.17% rate is contrary to BMW and contrary to law, and the decision is not based on substantial evidence.

[00:28:18] Speaker 02:
Thank you very much.

[00:28:20] Speaker 04:
Thank you, counsel.