[00:00:00] Speaker 04:
Our next case is denominated A.G.

[00:00:04] Speaker 04:
Der Dillinger-Putenberger versus the United States, 2024-2019.

[00:00:11] Speaker 04:
Mr. Kindler.

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

[00:00:17] Speaker 02:
Your honors, the Commerce Department's application of an adverse inference to its use of facts available, or AFA, was unsupported by substantial evidence.

[00:00:28] Speaker 02:
The record establishes that Salzgitter made every effort by using and further developing its systems used in the ordinary course of business to identify the manufacturer for the vast majority of the merchandise sold by its affiliated reseller, SMSV.

[00:00:45] Speaker 04:
But it was missing what, 20%?

[00:00:47] Speaker 02:
It was 20% by sales, but much less by quantity, approximately 95% by quantity.

[00:00:54] Speaker 04:
Didn't it have access to those data, but chose not to provide them?

[00:00:59] Speaker 02:
Thank you, Judge Lori.

[00:01:00] Speaker 02:
Respectfully, I disagree.

[00:01:01] Speaker 02:
It's not that Saltskitter chose.

[00:01:03] Speaker 02:
It's that it was infeasible using the systems maintained in the ordinary course of business, plus the additional systems that Saltskitter developed to comply with the department's fancy dumping duty.

[00:01:13] Speaker 05:
Due to verification, it did produce the manufacturer's names, right?

[00:01:20] Speaker 05:
I mean, it demonstrated that it did have the ability

[00:01:26] Speaker 05:
the other data and the manufacturer's name.

[00:01:28] Speaker 02:
Thank you, Judge Raina.

[00:01:29] Speaker 02:
Importantly, it did so for two sales.

[00:01:32] Speaker 02:
And at issue here are 28,000 sales that required manual extraction.

[00:01:41] Speaker 05:
But they did it for two sales, but that demonstrated that they could do it.

[00:01:45] Speaker 05:
And you maintained all along, as you are right now, that it was impossible to do that.

[00:01:50] Speaker 05:
You could not do it.

[00:01:51] Speaker 02:
Well, it was impossible given the context of all the information they had to provide.

[00:01:55] Speaker 02:
Let's take a step back.

[00:01:56] Speaker 02:
There were 105,000 sales.

[00:01:58] Speaker 05:
Those are dumping cases.

[00:02:00] Speaker 05:
It's all about information.

[00:02:02] Speaker 05:
It's all about data.

[00:02:04] Speaker 05:
Absolutely.

[00:02:04] Speaker 05:
That's your evidence.

[00:02:06] Speaker 05:
Absolutely.

[00:02:07] Speaker 05:
And you didn't produce it.

[00:02:08] Speaker 05:
Well, the issue is that that... You had it.

[00:02:11] Speaker 05:
You could have produced it.

[00:02:13] Speaker 05:
And you produce a due verification.

[00:02:15] Speaker 05:
But during the whole time of the proceeding, it seems like you were denying commerce the opportunity or the ability to work with that deal.

[00:02:25] Speaker 02:
Again, respectfully, that's not quite what happened on the record.

[00:02:27] Speaker 03:
Wait a second.

[00:02:30] Speaker 03:
What the statute says is that commerce has to consider unreasonable burden.

[00:02:34] Speaker 03:
That's what this case is about, isn't it?

[00:02:37] Speaker 03:
Correct.

[00:02:38] Speaker 03:
You ought to be relying on the statute which says that.

[00:02:41] Speaker 03:
As I understand,

[00:02:43] Speaker 03:
commerce's decision, the only response to unreasonable burden is that in one or two instances you could, in a matter of minutes, have produced the information manually.

[00:02:56] Speaker 03:
But you submitted data to commerce, an exhibit, that showed to do that for the whole 28,000 entries

[00:03:04] Speaker 03:
would take a couple of years, right?

[00:03:06] Speaker 03:
Correct.

[00:03:07] Speaker 03:
That's what the case is about, is whether that's an unreasonable burden and whether commerce addressed the unreasonable burden question.

[00:03:15] Speaker 02:
Correct.

[00:03:16] Speaker 02:
And commerce did not address the unreasonable burden.

[00:03:19] Speaker 02:
This goes to Judge Rainer's line of inquiry.

[00:03:21] Speaker 02:
At verification, Saltskitter demonstrated that it could manually extract that information for two sales.

[00:03:27] Speaker 02:
But what was required pursuant to commerce application of an adverse inference was that Saltskitter manually extract that information for 28,000 sales.

[00:03:37] Speaker 02:
Doing something once or twice is not the same as doing it 28,000 times.

[00:03:41] Speaker 02:
And importantly, Saltskitter did extract that information for 77,000 sales using the electronic systems maintained in the ordinary course of business, plus the additional systems that Saltskitter developed to deal with this issue.

[00:03:56] Speaker 02:
And the information that it did extract through those automated means accounted for 95% of the sales.

[00:04:03] Speaker 02:
to Judge Raina's point that salt skater was required to produce.

[00:04:08] Speaker 02:
Now the key question here, going back to Judge Dyck's point, is about what is reasonable and what was the burden.

[00:04:14] Speaker 02:
And this was what this court addressed in Nippon Steel, where it stated that the best of its ability standard, which is the standard pursuant to which an adverse inference is applied,

[00:04:24] Speaker 02:
requires commerce to assess the extent of the respondent's abilities, efforts, and cooperation.

[00:04:30] Speaker 02:
It may not be drawn merely from a failure to respond, but only where it is reasonable for commerce to expect a more forthcoming response.

[00:04:39] Speaker 02:
And here, that was not reasonable because of that manual burden.

[00:04:44] Speaker 02:
So let's get her again.

[00:04:45] Speaker 02:
consists of three steel producers and five affiliated resellers.

[00:04:50] Speaker 02:
We are talking about a subset of sales for an affiliated reseller that that reseller and salts getter overall used its systems maintained in the ordinary course of business.

[00:05:01] Speaker 02:
It's SAP sales.

[00:05:02] Speaker 05:
Could you have not reported a portion of the 28,000 sales?

[00:05:08] Speaker 05:
Under the state 10,000 or 500.

[00:05:12] Speaker 02:
Based on the record information, what Saltskitter had to provide was sales and cost data for 184,000 sales.

[00:05:20] Speaker 02:
These sales are not the only thing at issue in this investigation.

[00:05:24] Speaker 02:
And so again, we're dealing with three producers.

[00:05:27] Speaker 05:
Can you answer my question?

[00:05:29] Speaker 05:
Could you have produced 500 of the sales or 8,000 if you had started?

[00:05:35] Speaker 05:
early when you were first asked to produce the data?

[00:05:38] Speaker 02:
Based on all the information that Saltzkitter had to produce, no.

[00:05:41] Speaker 02:
It was infeasible, given the burden of cooperating with the entire investigation.

[00:05:45] Speaker 05:
But you produced a due verification in minutes.

[00:05:48] Speaker 02:
Right, because that was the manual effort, and it took time.

[00:05:51] Speaker 02:
Commerce verified how much time it took for those two individual sales.

[00:05:55] Speaker 03:
But you can't argue that a sample of 500 sales would have been an unreasonable burden.

[00:06:02] Speaker 03:
You could have done that.

[00:06:03] Speaker 03:
Even under your own theory that it took 10 minutes for each one, you could have done a sample.

[00:06:09] Speaker 03:
But I don't understand commerce to have found your position to be rejected because of the failure to a statistical sample.

[00:06:24] Speaker 03:
That's something that came up in the Court of International Trade opinion, not in commerce's decision.

[00:06:31] Speaker 02:
Correct.

[00:06:32] Speaker 02:
The issue with, and Judge Dyke, you're referring to the three alternative options that Saltscoter proposed.

[00:06:37] Speaker 03:
No, I'm not.

[00:06:39] Speaker 03:
You gave three options.

[00:06:40] Speaker 03:
The Court of International Trade said you didn't give a fourth option, which is a statistical sample.

[00:06:46] Speaker 03:
Judge Raina is suggesting you could have done 500 or 1,000.

[00:06:50] Speaker 03:
You clearly could have done.

[00:06:52] Speaker 03:
That wouldn't have been an unreasonable burden.

[00:06:54] Speaker 03:
You could have done a statistical sample.

[00:06:56] Speaker 03:
The question is whether that's a ground for rejecting the information that you did provide when commerce didn't rely on them.

[00:07:04] Speaker 02:
we do not believe it's a ground for rejecting it.

[00:07:06] Speaker 02:
Neither commerce nor the petitioners in this case ever contended that a statistical sample was necessary.

[00:07:13] Speaker 02:
What the statute requires in cases where information cannot be provided is a reasonable alternative.

[00:07:18] Speaker 02:
And that's what Saltskitter provided here, provided three reasonable alternatives.

[00:07:22] Speaker 02:
Now, a random statistical sample would have also been reasonable, but it was not the only reasonable option.

[00:07:29] Speaker 05:
To come back to the point of- It's not a question, it seems to me.

[00:07:34] Speaker 05:
of whether the methodology is reasonable.

[00:07:37] Speaker 05:
It's a question as to whether you provide it or whether this will see the best of your ability.

[00:07:44] Speaker 05:
Did you act in the best of your ability?

[00:07:47] Speaker 05:
And that's what we're looking at right now.

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

[00:07:50] Speaker 02:
And when we look to this court's decisions and what commerce has done in other cases, acting to the best of one's ability requires maximizing efforts in what was reasonable for commerce, given the context and the associated burden.

[00:08:03] Speaker 02:
That's in the statement of administrative action.

[00:08:06] Speaker 02:
And so what Saltskitter did here was use systems that it maintains in the ordinary course of business, plus systems that it developed for the purpose of the anti-dumping investigation.

[00:08:15] Speaker 02:
And in numerous other cases, almost identical to the facts of this one, commerce has found that that is sufficient.

[00:08:23] Speaker 02:
And that is acting to the best of one's ability, even where they are unable to provide the manufacturer information for a subset of sales.

[00:08:31] Speaker 05:
Well, in Nippon Steel versus United States, we recognize that there's no clear articulation or definition for best of your ability.

[00:08:41] Speaker 05:
But we did say that it requires a respondent to do the maximum.

[00:08:46] Speaker 05:
it is able to do.

[00:08:48] Speaker 05:
And that's what I'm focusing in.

[00:08:51] Speaker 05:
And after months go by and you're not submitting the data saying, I can't do it, I don't have it, you go to verification and it turns out that you do have it.

[00:09:04] Speaker 05:
And even had you submitted 100, perhaps this would change the picture for you.

[00:09:10] Speaker 02:
Well, Judge Raina, to be clear, Saltskitter was consistent in what it said it could and could not do.

[00:09:15] Speaker 02:
And it did submit that manufacturing information for 77,000 sales.

[00:09:20] Speaker 02:
That was the result of Saltskitter developing additional systems on top of what was used in the ordinary course of business.

[00:09:26] Speaker 02:
So it's not that Saltskitter simply said, we can't do this, we give up.

[00:09:30] Speaker 02:
It took further steps.

[00:09:32] Speaker 02:
That was the maximum effort it could do using the systems maintained in the ordinary course of business.

[00:09:37] Speaker 02:
And that's what Nippon Steel stands for.

[00:09:40] Speaker 02:
It is about what is reasonable for commerce to expect.

[00:09:43] Speaker 02:
And reasonable in this context requires understanding what salts getter had in the ordinary course of business.

[00:09:50] Speaker 02:
Now in multiple cases, cut to length plate from Japan, stainless steel bar, or structural steel beams, excuse me, from Germany, cut to length plate from Austria, commerce was faced with highly similar, if not identical, facts.

[00:10:03] Speaker 02:
And it said that requiring a manual effort, which is what it wanted here, was not reasonable.

[00:10:10] Speaker 02:
And it refused to apply an adverse inference.

[00:10:13] Speaker 02:
There is no justification for treating this case differently from those cases, especially when

[00:10:20] Speaker 02:
An agency treating like cases differently is a grounds for finding it to be unreasonable.

[00:10:26] Speaker 02:
Additionally, Salzgitter was not an experienced respondent.

[00:10:30] Speaker 02:
This court has repeatedly found, as well as the Court of International Trade, that an adverse inference can be justified when a failure to provide information is carried out by an experienced respondent.

[00:10:40] Speaker 02:
Saltskitter was inexperienced, and both the courts and commerce have recognized that that is a salient factor.

[00:10:46] Speaker 02:
In short, commerce is an adverse inference against Saltskitter for doing everything that it could using the systems maintained in the ordinary course of business and even modifying those systems to meet commerce's request.

[00:10:57] Speaker 05:
This is a factual issue, right?

[00:11:00] Speaker 02:
Correct.

[00:11:00] Speaker 02:
Substantial evidence.

[00:11:01] Speaker 02:
Correct.

[00:11:02] Speaker 02:
The only additional thing Saltskiller could have done was a manual exercise which commerce verified.

[00:11:08] Speaker 03:
That's not true.

[00:11:08] Speaker 03:
You could have done a statistical sample.

[00:11:11] Speaker 03:
That's what you yourself, two minutes ago, said was a reasonable approach.

[00:11:17] Speaker 03:
And the question is, whose fault is it?

[00:11:20] Speaker 03:
that you didn't turn to a statistical sample.

[00:11:23] Speaker 03:
Was that something you had to volunteer or was commerce required to say you should do a statistical sample and that's the way out of this box?

[00:11:34] Speaker 03:
I mean that seems to be the heart of the question.

[00:11:36] Speaker 02:
At no point during the investigation did Commerce say how Saltz-Skitter should provide the information.

[00:11:41] Speaker 02:
There's nothing in the statute that requires a statistical or random sample.

[00:11:46] Speaker 02:
And in fact, the three options that Saltz-Skitter provided... The statute talks about alternatives.

[00:11:50] Speaker 03:
If it's a reasonable burden, you have to offer alternatives.

[00:11:54] Speaker 03:
If an alternative, a statistical sample, is a reasonable alternative, then that would seem to be something that perhaps you have to offer.

[00:12:02] Speaker 02:
Well, Saltskitter provided options that were alternative, and in Saltskitter's view, in a certain sense, it was just as, if not more robust than a random sampling, because each of the three options covered all of those 28,000 sales.

[00:12:16] Speaker 02:
Under the three options Saltskitter proposed, it proposed to include all, none, or some of the sales as produced by Saltskitter,

[00:12:23] Speaker 02:
And some of the sales was based on actual verified evidence, the proportion of salt skater produced plate that SMS depurchased.

[00:12:31] Speaker 02:
Each of those would have resulted in a 0% margin.

[00:12:34] Speaker 02:
Because it was based on verified record evidence, it was reasonable.

[00:12:40] Speaker 02:
And commerce, in completely disregarding it, violated and ignored record evidence.

[00:12:47] Speaker 02:
With that, Your Honors, I do recognize I'm into my rebuttal time.

[00:12:49] Speaker 02:
And I will reserve the rest for rebuttal.

[00:12:51] Speaker 04:
Thank you.

[00:12:53] Speaker 04:
Ms.

[00:12:53] Speaker 04:
Westerkamp, you are taking nine minutes.

[00:12:57] Speaker 00:
Yes, that's right.

[00:13:02] Speaker 00:
Good morning.

[00:13:02] Speaker 00:
Am I at least a part?

[00:13:05] Speaker 03:
Do you agree that under the statute, commerce can impose an unreasonable burden on the respondent?

[00:13:10] Speaker 03:
Yes, I do agree with that, Your Honor.

[00:13:12] Speaker 03:
OK.

[00:13:13] Speaker 03:
So I don't really see anything in the commerce decision

[00:13:19] Speaker 03:
that really addresses the unreasonable burden thing, other than to say, in two instances, they secured this information and that somehow that proved that they could do it for the $128,000.

[00:13:35] Speaker 03:
Why isn't Commerce addressing the unreasonable burden question?

[00:13:39] Speaker 03:
Doesn't it have to do that?

[00:13:40] Speaker 00:
Well, I think, Your Honor, in this case,

[00:13:43] Speaker 00:
From the very beginning, Salzgetters seemed to insist that the missing manufacturer information just didn't seem to matter, and so almost contested that that was even missing.

[00:13:52] Speaker 00:
And so when it came to commerce, did appropriately apply facts available because in order to- Well, they submitted a lengthy exhibit showing exactly what would be required

[00:14:02] Speaker 03:
to make a manual comparison of these records to come up with the data, right?

[00:14:09] Speaker 03:
And they gave you an estimate that would take over 4,000 hours of work.

[00:14:17] Speaker 03:
And they said that was an unreasonable burden.

[00:14:20] Speaker 03:
But I don't see that Commerce really responded.

[00:14:22] Speaker 00:
But I think, Your Honor, when it comes to that, is that from the start, at Verification, Commerce did put in the verification checklist, we need to track these sales.

[00:14:33] Speaker 00:
At verification, Salzgitter was able to show that it could go electronically and could figure out who the manufacturer of the plate was for those 28,000 sales.

[00:14:41] Speaker 00:
And throughout the whole proceeding, Salzgitter would be- I'm sorry.

[00:14:44] Speaker 03:
I don't understand what you're saying.

[00:14:45] Speaker 03:
I thought it was undisputed that for the 28,000 sales, it had to be done manually.

[00:14:50] Speaker 00:
That is right.

[00:14:51] Speaker 00:
That is correct.

[00:14:52] Speaker 00:
And again, as the trial court had said, Salzgitter had basically, its proposed alternative was that separate database.

[00:15:00] Speaker 00:
And as Mr. Kendall said, the three different approaches

[00:15:03] Speaker 00:
But that all resulted in a 0% margin.

[00:15:05] Speaker 00:
And here, Commerce did say that Sal's Gitter had not cooperated to the best of its ability because it did have access to these records.

[00:15:13] Speaker 00:
And it didn't, as the trial court had said, didn't even attempt to maybe do some kind of

[00:15:18] Speaker 00:
alternative as opposed to just not providing anything.

[00:15:21] Speaker 03:
But I don't see that commerce said that there was another alternative that they didn't propose, which made their proposals inadequate.

[00:15:32] Speaker 03:
I don't see commerce as saying there was another alternative that they should have proposed.

[00:15:38] Speaker 03:
And if so, where does it say that?

[00:15:40] Speaker 00:
But I think there's two distinct issues here.

[00:15:43] Speaker 00:
So there's commerce's application of facts available.

[00:15:45] Speaker 00:
And I think it's undisputed that what is missing

[00:15:48] Speaker 00:
is the manufacturer information for those 28,000 downstream sales to SMSD.

[00:15:54] Speaker 00:
And so Commerce did not even know, are those home market sales?

[00:15:56] Speaker 00:
It needed that information.

[00:15:57] Speaker 00:
So that's the first step.

[00:15:58] Speaker 00:
So is there missing information?

[00:16:00] Speaker 00:
And I think it's clear that there is.

[00:16:02] Speaker 00:
And then the second step is, well, did they cooperate to the best of their ability?

[00:16:06] Speaker 00:
Sales getter, that is.

[00:16:08] Speaker 03:
And Commerce determined that it did not, because it- You're ignoring the unreasonable burden

[00:16:13] Speaker 03:
requirement which you agree exists in the statute?

[00:16:17] Speaker 00:
Well, but the party has to definitively tell commerce, and that's 19 USC 1677M, that it cannot access this information and has to provide an alternative.

[00:16:28] Speaker 00:
And here, again... Well, they did that.

[00:16:30] Speaker 03:
They said that it would require 4,000 hours of work to do it.

[00:16:35] Speaker 03:
That's an unreasonable curtain.

[00:16:36] Speaker 03:
And here's an alternative.

[00:16:38] Speaker 00:
Respectfully, Your Honor, at verification, that's kind of the final spot check, just to make sure that the information is correct.

[00:16:45] Speaker 00:
And at the first time, at verification.

[00:16:47] Speaker 03:
So we're nearly at the end of the... So what you're saying is they didn't propose the alternatives and make this point early enough in the proceeding?

[00:16:55] Speaker 00:
I mean, I think that would be a fair way to say it, but also, Your Honor, that it wasn't until verification that they, and I do understand, and Commerce did acknowledge that it would be close to 5,000 hours of work to pull the 28,000 entries, except I think where the adverse inference comes in and the failure to cooperate to the best of its ability is that throughout this period of review, or investigation actually, Sal's Gitter had just

[00:17:21] Speaker 00:
refused to provide that information and refused to provide an alternative.

[00:17:25] Speaker 03:
They did provide the information because they said it would be on a reasonable burn.

[00:17:29] Speaker 00:
But it was not until the verification where they showed that they could do it and then even after that had not, other than that separate database which had the three different options which all resulted in a zero percent margin, that was when the first time where they said well here's our alternative but commerce rejected that alternative and I think again when it comes to

[00:17:49] Speaker 00:
So there's facts available, which I think is supported that Congress did determine that information was missing, the manufacturer.

[00:17:58] Speaker 00:
And then it goes to, okay, and so what's really in dispute here is the rate that was selected.

[00:18:03] Speaker 00:
I'm sorry, I really don't think you're addressing my question.

[00:18:08] Speaker 03:
They supplied extensive data describing what the process was, that it would take 5,000 hours, which you agree with.

[00:18:16] Speaker 03:
And so why isn't that an unreasonable burden?

[00:18:21] Speaker 00:
The reason why it's not an unreasonable burden is, as Commerce explained, that the party has to actually tell Commerce that and approach Commerce.

[00:18:32] Speaker 00:
But at verification, and so, and again, Your Honor.

[00:18:34] Speaker 03:
So you're saying it came too late?

[00:18:35] Speaker 03:
Is that the point?

[00:18:36] Speaker 00:
I mean, I think it came too late, and then also that they did not cooperate to the best of their ability.

[00:18:41] Speaker 03:
No, no, no.

[00:18:43] Speaker 03:
That's a different issue.

[00:18:45] Speaker 03:
If there was no reasonable burden, they didn't have to undertake it, right?

[00:18:50] Speaker 00:
That's correct.

[00:18:51] Speaker 00:
And the party also, though, has to propose a reasonable alternative.

[00:18:54] Speaker 00:
And in this instance, Commerce rejected the alternative that Sal's Gitter proposed, which was, again,

[00:19:01] Speaker 00:
the three different approaches in the database.

[00:19:03] Speaker 00:
And so Commerce did determine that they did not cooperate to the best of their ability, and as part of that also did not propose a reasonable alternative once it became clear to Commerce, at verification, that they could actually access this data.

[00:19:17] Speaker 00:
And so that it- Manually.

[00:19:19] Speaker 00:
Manually, that's right.

[00:19:21] Speaker 00:
For 5,000 hours of work.

[00:19:24] Speaker 00:
But also, I think Judge Raina had made this point earlier where, I mean, this wasn't

[00:19:29] Speaker 00:
This was months.

[00:19:30] Speaker 00:
This procedure happened over months.

[00:19:32] Speaker 00:
And so it's not as if they had the... And again, this is vital information.

[00:19:38] Speaker 00:
Commerce considered it critical information for the manufacturer of the plate.

[00:19:41] Speaker 05:
And so... What would have happened if, close to verification, in preparing for verification, the appellant would have come forward and said, you've been asking for all this data.

[00:19:55] Speaker 05:
We explained there's 28,000 transactions.

[00:19:59] Speaker 05:
We haven't kept the data in the format that allows us to answer all of it.

[00:20:05] Speaker 05:
But here's 200 transactions.

[00:20:07] Speaker 05:
This is the best we can do.

[00:20:09] Speaker 05:
Would we be having a different conversation?

[00:20:11] Speaker 00:
I think very likely we would, Your Honor, where in that case, that would be, for example, a reasonable alternative that Salzgitter proposes.

[00:20:19] Speaker 00:
And I know that Judge Gordon, for example, had said that, well, maybe there could have been some kind of statistical sample.

[00:20:25] Speaker 00:
to show that as it is, there is zero information on the record as to what percentage of those 28,000 sales were the manufacturer.

[00:20:34] Speaker 00:
There's just zero information on this record.

[00:20:36] Speaker 00:
And so I think that would have been, we would be in a different scenario where, for example, with Judge Dyke, then you would have the question of, well, was it unreasonable for Commerce to still insist on getting 28,000 versus maybe, say, 500?

[00:20:49] Speaker 00:
But on this record, we don't have that.

[00:20:51] Speaker 00:
And it was because Sal's Gitter did have access to the information.

[00:20:55] Speaker 00:
but did not propose an alternative that was acceptable to commerce?

[00:20:58] Speaker 05:
This is an important issue because we're faced with this question all the time, and rightly so.

[00:21:04] Speaker 05:
I mean, that's a dump in cases.

[00:21:07] Speaker 05:
As I said before, you're dealing with data.

[00:21:09] Speaker 05:
That's the evidence of those type of cases.

[00:21:14] Speaker 05:
So what we're looking at here is not to determine or to see whether the commerce was correct with respect to the burden

[00:21:25] Speaker 05:
that answering a questionnaire or a particular question in places on an exporter, but whether it's on the action of the exporter, whether they did the best of their ability, that's a focal point.

[00:21:41] Speaker 05:
Would you agree with that?

[00:21:42] Speaker 00:
Yes, that's the heart of this case, Your Honor.

[00:21:46] Speaker 00:
And I think here, the record does show that there's just an absence of any information, although Salzgitter could have, you know,

[00:21:54] Speaker 00:
could have done, the statistical sample could have pulled to that.

[00:21:57] Speaker 03:
Well, it's not an absence of information.

[00:21:58] Speaker 03:
There's plenty of information about the burden.

[00:22:00] Speaker 03:
You agreed to it.

[00:22:01] Speaker 03:
You agreed it took 5,000 hours.

[00:22:04] Speaker 00:
But when it comes to the actual manufacturer information, I think what they pulled to, so there's 2 out of 28,000.

[00:22:12] Speaker 00:
And so when it comes to missing information, that information is not on this record.

[00:22:17] Speaker 00:
And I know my time is up.

[00:22:19] Speaker 04:
Thank you, Ms.

[00:22:20] Speaker 04:
Westerkamp.

[00:22:21] Speaker 04:
Mr. Garish.

[00:22:31] Speaker 01:
Good morning, may it please the court.

[00:22:33] Speaker 01:
Commerce properly applied an adverse inference in selecting the facts available here for the 28,000 sales in question.

[00:22:41] Speaker 01:
Solskitter failed to act to the best of its ability in doing the maximum.

[00:22:44] Speaker 03:
So when commerce didn't address the unreasonable burden question, why isn't that a problem?

[00:22:48] Speaker 01:
Well, I think they did, Your Honor.

[00:22:50] Speaker 01:
They talked about the fact that Saltskitter had alleged that there was an unreasonable burden, but they found, in fact, that there was not an unreasonable burden.

[00:22:57] Speaker 01:
Because?

[00:22:58] Speaker 01:
Because when, first of all, after Saltskitter initially claimed that this would be burdensome and time-consuming, they engaged in no further efforts to be able to report the information that was requested here, and ultimately,

[00:23:14] Speaker 01:
When Commerce asked for it at verification, they were able to provide it within minutes.

[00:23:20] Speaker 03:
No, that's not true.

[00:23:22] Speaker 03:
They didn't provide the $128,000.

[00:23:23] Speaker 03:
No, they did it for two entries.

[00:23:28] Speaker 03:
They provided it in minutes.

[00:23:29] Speaker 03:
But if you multiply two entries, minutes, you get 5,000 hours, which is what Commerce agreed was the correct number.

[00:23:37] Speaker 01:
Well, in fact, Your Honor, Saltscoter was all over the place in terms of the time that they said it would require to report this information.

[00:23:45] Speaker 01:
At one point, they said it likely would take many months.

[00:23:49] Speaker 01:
And that's, I think that is that

[00:23:53] Speaker 01:
appendix page 8046 in their third supplemental section B result box.

[00:23:59] Speaker 01:
Fairly long into the proceeding, that's what they said it would take.

[00:24:03] Speaker 01:
Commerce gave them six months.

[00:24:05] Speaker 01:
They gave them four separate opportunities to provide this information.

[00:24:09] Speaker 01:
Many months.

[00:24:09] Speaker 01:
I would say six months is many months.

[00:24:11] Speaker 03:
Okay, but under the statute, the fact that they could do it isn't the be-all and the end-all.

[00:24:16] Speaker 03:
It has to be able to

[00:24:20] Speaker 01:
Well, I think, first of all... Correct or not correct?

[00:24:23] Speaker 01:
Actually, what the statute says is, if they notify Commerce promptly, that they cannot provide the information, and they suggest... Wait, are you disagreeing with Commerce that there's an unreasonable burden standard in the statute?

[00:24:37] Speaker 01:
I mean, the statute doesn't talk in terms of unreasonable burden.

[00:24:40] Speaker 01:
It talks about can they... It uses those words specifically.

[00:24:44] Speaker 03:
What are you talking about?

[00:24:45] Speaker 01:
Well, it does say, though, that if they are unable to do it, they have to suggest an alternative form of the way they can report the sales to commerce.

[00:24:59] Speaker 01:
They didn't provide an alternative form for reporting the sales.

[00:25:02] Speaker 01:
They provided three options, but their alternative was not to report the information at all.

[00:25:08] Speaker 01:
And that's similar to what this court dealt with in the Maverick tube decision, where the respondents didn't provide an alternative form.

[00:25:16] Speaker 01:
They just simply said, we are not going to provide the information.

[00:25:20] Speaker 01:
But under the statute, even where there's difficulty in meeting requirements, Congress isn't required to change its request for information.

[00:25:27] Speaker 01:
They need to consider that.

[00:25:28] Speaker 03:
Even if it's not a reasonable burden?

[00:25:30] Speaker 03:
Well, I think the statute uses those exact words, right?

[00:25:33] Speaker 01:
Right.

[00:25:34] Speaker 01:
But here, they found that there was not.

[00:25:36] Speaker 03:
They do use those words?

[00:25:37] Speaker 01:
I believe that is the case, Ron.

[00:25:38] Speaker 01:
But they looked at that and found that there was not an unreasonable burden here for the reasons that they laid out in the issues and decision memorandum in doing this.

[00:25:47] Speaker 01:
And they found that they could have did it when they attempted to do it.

[00:25:52] Speaker 01:
They were able to do it.

[00:25:53] Speaker 03:
They were able to do it for two entries.

[00:25:55] Speaker 03:
Why, on that show, it's not an unreasonable burden for 128,000 entries.

[00:26:00] Speaker 01:
Well, it was for 28,000 entries.

[00:26:02] Speaker 01:
They actually were able to do it for 77,000 entries.

[00:26:06] Speaker 01:
All of their other affiliates were able to do this as well.

[00:26:10] Speaker 01:
But they had two computer systems that they could have linked up.

[00:26:14] Speaker 01:
And they did it for some of the sales.

[00:26:17] Speaker 01:
They did not do it for others.

[00:26:19] Speaker 01:
But I mean, the question here is, did they act to the best of their ability?

[00:26:22] Speaker 01:
Part of that is, what is a reasonable respondent expected to do in terms of records they maintain and information they could be called upon to present?

[00:26:33] Speaker 01:
Here, it's reasonable that a respondent should be able to provide manufacturer information for quality assurance purposes, for warranty and liability claims.

[00:26:43] Speaker 01:
In fact, the other four affiliates here did maintain all this information, did provide it to Commerce.

[00:26:49] Speaker 01:
In addition, so there was inadequate record keeping on that basis.

[00:26:53] Speaker 01:
It was also inadequate record keeping because as Salt-Skitter itself admitted,

[00:26:59] Speaker 01:
Part of the reason they couldn't report the manufacturer was because of manual input errors in their own system.

[00:27:04] Speaker 01:
That's at appendix page 8233.

[00:27:07] Speaker 01:
So they said they could have reported the manufacturer information for those sales, but for the input errors in their system.

[00:27:16] Speaker 01:
That is the epitome of inadequate, poor, sloppy record keeping, which the Nippon decision addresses as that's not acting to the best of your ability.

[00:27:30] Speaker 01:
The other thing, of course, is the Niffon decision requires that the respondent engage in a prompt, careful, and comprehensive investigation of its records.

[00:27:41] Speaker 01:
Here, they had six months, four separate opportunities.

[00:27:45] Speaker 01:
There's no evidence that after they initially claimed, this is burdensome, this is time consuming, there's no evidence they engaged in any additional efforts here.

[00:27:56] Speaker 01:
Now, they said that these options were alternatives.

[00:28:04] Speaker 01:
They were not alternatives.

[00:28:05] Speaker 01:
They said that they would not provide the information.

[00:28:08] Speaker 01:
And I think, Judge, you asked the Council for the Government, will the Commerce ever ask them for a sample of sales?

[00:28:16] Speaker 01:
Well, it's not Commerce's responsibility to do that.

[00:28:19] Speaker 01:
The respondent has the duty to build the record.

[00:28:23] Speaker 01:
I think this court and the Court of International Trade have recognized that.

[00:28:26] Speaker 01:
And to show, here's what we're doing to try to act to the best of our ability to provide this information.

[00:28:32] Speaker 01:
They never offered that up.

[00:28:33] Speaker 01:
The three options they offered were to not provide the information at all.

[00:28:37] Speaker 01:
They would have required unsupported assumptions in providing the data, which would have given them the most favorable result possible.

[00:28:44] Speaker 01:
That's not permissible under the statute.

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

[00:28:49] Speaker 04:
Mr. Kendall has some more bottle time, two and a half minutes.

[00:29:06] Speaker 02:
Your Honors, four brief points on rebuttal.

[00:29:08] Speaker 02:
Number one, regarding the three options, and in particular, option three.

[00:29:12] Speaker 02:
No one has established that option three was unreasonable.

[00:29:15] Speaker 02:
It was based on the entire universe of sales.

[00:29:17] Speaker 02:
It was based on a verified ratio.

[00:29:20] Speaker 02:
And it was based on an approach that had been verified on the record.

[00:29:24] Speaker 02:
The discussion of what is more reasonable or less reasonable is not as pertinent here.

[00:29:28] Speaker 02:
Option three was reasonable, neither commerce nor the domestic industry.

[00:29:32] Speaker 05:
Did that option result in a zero dumping margin?

[00:29:35] Speaker 02:
all three options resulted in a zero dumping margin.

[00:29:37] Speaker 02:
But importantly, that demonstrates that Saltskater didn't benefit by withholding information.

[00:29:42] Speaker 02:
The fact is, any of these three options covered the entire spectrum.

[00:29:46] Speaker 02:
Treat all the sales as Saltskater sales, none of the sales as Saltskater sales, or some verified proportion.

[00:29:53] Speaker 02:
This shows the consistency of the information and the alternatives.

[00:29:58] Speaker 02:
The second point, the government and

[00:30:00] Speaker 02:
Mr. Garrish continued to insist that we refused information, that we made no further efforts, that our explanations were all over the place.

[00:30:09] Speaker 02:
This is not true.

[00:30:11] Speaker 02:
Saltskater was consistent in explaining the burden.

[00:30:13] Speaker 02:
I would point your honors to appendix 57-43, 67-89-90, 80-43-46, and 82-37-42.

[00:30:20] Speaker 02:
Throughout the investigation, Saltskater established the burden

[00:30:27] Speaker 02:
It showed that it went beyond the systems maintained in the ordinary course of business.

[00:30:32] Speaker 02:
It offered alternatives.

[00:30:33] Speaker 02:
It met its duty to report the information and provide alternatives.

[00:30:38] Speaker 02:
It was Commerce that ignored them in the final determination.

[00:30:40] Speaker 02:
And as Mr. Garrish said before you today, that our record keeping was sloppy.

[00:30:44] Speaker 02:
That is the third point.

[00:30:46] Speaker 02:
That is not the case.

[00:30:47] Speaker 02:
In the issues and decision memorandum, Commerce said that this was information that Saltz-Gator should have maintained in the ordinary course of business for occasional warranty claims.

[00:30:56] Speaker 02:
Saltskitter did.

[00:30:57] Speaker 02:
It was able to pull that information manually for an occasional warranty claim, as it did at verification.

[00:31:03] Speaker 02:
What it could not do was electronically pull all of that information for the 28,000 sales in less than, as we have discussed, 5,000 hours.

[00:31:13] Speaker 02:
And that goes to the heart of the case here.

[00:31:16] Speaker 02:
It was unreasonable, consistent with Nippon Steel, for commerce to expect anything more forthcoming than what Saltskitter did.

[00:31:23] Speaker 02:
Saltskater used the systems it had in the ordinary course of business, built on those systems, and acted to the best of its ability.

[00:31:30] Speaker 02:
Thank you, Your Honors.

[00:31:32] Speaker 04:
Thank you, Mr. Kendall.

[00:31:33] Speaker 04:
The case is submitted.