[00:00:00] Speaker 07:
This is number 22-2204, Tauken Tamir LLP versus United States, Mr. Croninger.

[00:00:11] Speaker 03:
Go ahead.

[00:00:16] Speaker 03:
I'm Peter Koenig, Squire Patton Bobbs.

[00:00:18] Speaker 03:
I'm here on behalf of Appellant.

[00:00:20] Speaker 03:
Tauqin Tamir, Tauqin Sumruq, and the Ministry of the Republic of Kazakhstan.

[00:00:31] Speaker 03:
And actually, all I'm going to do in my opening argument is work to answer your question.

[00:00:36] Speaker 03:
And the question was, you just issued the decision in Oman fasteners, and does it apply, and in what way?

[00:00:45] Speaker 03:
So that's all I'm going to do, because it actually covers much of our case anyway.

[00:00:51] Speaker 03:
In Oman fasteners, they found that any infraction as far as submitting the questionnaire response was minor.

[00:01:03] Speaker 03:
You found, the court found.

[00:01:06] Speaker 03:
And also that the adverse inferences imposed were draconian under the circumstances.

[00:01:15] Speaker 05:
Why aren't the facts here far different?

[00:01:19] Speaker 05:
In Oman,

[00:01:22] Speaker 05:
the party started submitting all of its documents before the deadline and had uploaded, at least as far as I read, almost all of them, except for one or two, and finished that within 15 minutes.

[00:01:36] Speaker 05:
And so under no circumstances could you ever consider that really a failure to miss the deadline.

[00:01:44] Speaker 05:
They tried.

[00:01:44] Speaker 05:
It was very, very minor.

[00:01:48] Speaker 05:
You got two extensions and on the day it was due, you knew that morning that you were going to have problems, but yet you didn't file an extension request until sometime that afternoon at 3 or 4.

[00:02:03] Speaker 05:
And by operation of the regulation, if it didn't respond, you knew you got an automatic extension at 8 till 8.30.

[00:02:10] Speaker 05:
But by 8.30, you still hadn't tried to upload anything.

[00:02:14] Speaker 05:
You didn't start uploading anything until 10, and I don't think you finished until three, and then you never uploaded the proprietary documents.

[00:02:23] Speaker 05:
Those all seem to me to be very distinguishable from the very, very minor oversight in Oman.

[00:02:32] Speaker 05:
I mean, why isn't that enough to distinguish this case from Oman?

[00:02:36] Speaker 03:
Well, in Oman, the party did not file an extension request in a timely way, and we did.

[00:02:44] Speaker 05:
Yes, but you didn't meet the deadline given by your extension request.

[00:02:50] Speaker 03:
We filed an extension for one day.

[00:02:52] Speaker 05:
I know, and you knew, and it was your third, right?

[00:02:55] Speaker 05:
You'd already been given two, and you knew that if commerce didn't address it by operation of their regulation, you got an automatic extension to that next morning.

[00:03:04] Speaker 05:
Oman relied on the fact that if they had filed that, they would have gotten the 830 deadline and not been untimely at all.

[00:03:13] Speaker 05:
You didn't meet the 830 deadline.

[00:03:15] Speaker 05:
You didn't even attempt to meet the 830 deadline.

[00:03:17] Speaker 03:
Oh, we attempted.

[00:03:19] Speaker 05:
No, but you didn't do anything with comments.

[00:03:20] Speaker 07:
Can I clarify something here?

[00:03:22] Speaker 07:
My understanding, and please correct me if I'm wrong, is that some material was uploaded before the 830 deadline.

[00:03:29] Speaker 03:
Yeah, there was an attempt.

[00:03:33] Speaker 07:
I thought some of it was uploaded.

[00:03:35] Speaker 03:
Am I mistaken about that?

[00:03:40] Speaker 03:
What was sent, we tried to upload it and we still got a rejection.

[00:03:46] Speaker 03:
And actually we filed for the record notice of that rejection.

[00:03:51] Speaker 03:
And then we did complete by, I think it was around 10.40, an hour and a half after 8.30.

[00:03:59] Speaker 02:
But why did you start, I mean you knew this was going on in the evening and maybe there was stuff going on, but according to what you say, you started to do this uploading at like 5 o'clock, 5 a.m.

[00:04:12] Speaker 02:
Why didn't you start doing it at 10 p.m.

[00:04:14] Speaker 02:
the night before once you knew that this was an issue?

[00:04:17] Speaker 03:
Because there were problems with file corruption and making them searchable.

[00:04:21] Speaker 03:
And that was the core problem.

[00:04:25] Speaker 03:
We'd received from TKT in the prior questionnaire responses, we received them and they were fine and everything went smoothly.

[00:04:34] Speaker 03:
So when we received their final full version the morning of

[00:04:39] Speaker 03:
I think it was like close to 11 o'clock that morning.

[00:04:43] Speaker 03:
At that point, the feeling from the past experience with them was always good.

[00:04:47] Speaker 05:
But then when we started working through... Why do you think it was appropriate to wait until 11 the day it was due to receive the documents?

[00:04:59] Speaker 05:
That doesn't seem to be a very wise practice, especially after you'd already been given two extensions for this production.

[00:05:09] Speaker 03:
Well, TKT was working as fast as possible.

[00:05:13] Speaker 03:
These questionnaire responses are absolutely huge.

[00:05:17] Speaker 03:
They've never been through the process, and it's actually not uncommon for them to go right up to the deadline.

[00:05:26] Speaker 02:
Not uncommon for who?

[00:05:29] Speaker 02:
For all people that have this issue or for your clients or when you say it's not uncommon?

[00:05:36] Speaker 02:
Pardon?

[00:05:37] Speaker 02:
When you say it's not uncommon, not uncommon for who?

[00:05:40] Speaker 03:
Oh, just from many cases.

[00:05:45] Speaker 03:
And actually, if you looked at the time, Commerce said you should start your questionnaire response filing by 4 p.m.

[00:05:55] Speaker 03:
And that was from Commerce's experience and observations of when people were finally ready to file.

[00:06:01] Speaker 03:
It was later

[00:06:02] Speaker 03:
that after they viewed what was happening some years later, that they changed it to 10 AM as a best practice.

[00:06:11] Speaker 03:
So we actually were following best practice.

[00:06:13] Speaker 03:
We thought we would be ready to go by 4 o'clock.

[00:06:17] Speaker 03:
And by 3.40, it was clear that we could not deal with these file corruption issues.

[00:06:24] Speaker 02:
OK, your time is running.

[00:06:25] Speaker 02:
So let me ask you a basic question.

[00:06:26] Speaker 02:
You were going to address OMON.

[00:06:28] Speaker 02:
is your understanding of OMON that it deals exclusively with the imposition of an AFA rate.

[00:06:36] Speaker 02:
So your case, and do you also agree that your case presents kind of a two-step, which is even if you get rid of the AFA rate hypothetically, you would still be left with facts available because your submission was rejected.

[00:06:54] Speaker 02:
and that would be something less draconian that commerce could do.

[00:06:58] Speaker 02:
So is it your view, one, that OMON only covers the AFA problem, allegedly or possibly, and two, that we would also therefore need to decide ourselves, if we agreed that the AFA rate was improper, what we do, it's step two, which is on the facts available, which is a different standard than the AFA rate.

[00:07:21] Speaker 03:
Well, of course, we're arguing the questionnaire responses should have been accepted.

[00:07:26] Speaker 03:
And then if you go to OMON, if they're not accepted, adverse facts are inappropriate under the circumstances.

[00:07:35] Speaker 02:
That's adverse facts.

[00:07:36] Speaker 02:
But what about, OK, so even if we were to say hypothetically under OMON, they couldn't have applied this adverse facts.

[00:07:44] Speaker 02:
percentage.

[00:07:45] Speaker 02:
We're still left with a case where they're going to have to apply something and your filings were still rejected.

[00:07:55] Speaker 02:
It wasn't really an issue in OMON because of the injunction.

[00:07:59] Speaker 02:
It wasn't an issue in OMON until Judge Miller Baker said no.

[00:08:05] Speaker 02:
He also said you have to accept the filers.

[00:08:10] Speaker 02:
And OMON in my read didn't go that far because it didn't need to because in the circumstances of that case they were already down to a 0% rate.

[00:08:18] Speaker 02:
But in this case, what is your view of what happens if we apply OMON?

[00:08:23] Speaker 02:
How far does that take you in terms of where you want to get?

[00:08:25] Speaker 03:
Well, the court in Oman said you've got to accept the questionnaire responses.

[00:08:30] Speaker 03:
Did it really?

[00:08:31] Speaker 03:
And then Commerce did accept them and they calculated a margin.

[00:08:35] Speaker 02:
I read Oman, so you can show me we're wrong, that they didn't reach that issue.

[00:08:41] Speaker 02:
that Oman definitely said the AFA rate doesn't apply.

[00:08:45] Speaker 02:
But it said explicitly, we're not reaching the issue of how you calculate the rate with or without the information, because we're down to it.

[00:08:54] Speaker 02:
Kind of it's moot, because we're down to a 0% rate anyway.

[00:08:57] Speaker 03:
My understanding is, ultimately, it was not a facts available decision, but a decision on the merits of the questionnaire responses.

[00:09:04] Speaker 05:
Well, let's assume we do find that Commerce properly excluded your submission.

[00:09:11] Speaker 05:
What's your argument then about why adverse facts is not appropriate?

[00:09:16] Speaker 05:
Because if they didn't accept your submission, then you didn't cooperate.

[00:09:22] Speaker 05:
You didn't supply the needed information.

[00:09:24] Speaker 05:
Why isn't that sufficient to provide an adverse inference?

[00:09:28] Speaker 03:
Well, any claim of non-cooperative.

[00:09:33] Speaker 03:
In Oman, they found the degree of the problem.

[00:09:37] Speaker 05:
No, no, no.

[00:09:37] Speaker 05:
I'm beyond that.

[00:09:38] Speaker 05:
Let's just assume that I think commerce properly excluded your production because you didn't meet the deadlines.

[00:09:47] Speaker 05:
And therefore, you can't rely on your attempt to meet the deadlines.

[00:09:51] Speaker 05:
You didn't meet the deadlines.

[00:09:52] Speaker 05:
It was properly excluded.

[00:09:54] Speaker 05:
Therefore, you did not cooperate with the investigation by providing that supplemental information.

[00:10:01] Speaker 05:
Why wouldn't adverse facts and the nature here be available then?

[00:10:06] Speaker 03:
Because I think the infraction, if there was one, because a whole separate issue that we're not discussing now is the questionnaire responses should be accepted.

[00:10:16] Speaker 03:
But I think the infraction should be considered not.

[00:10:20] Speaker 03:
There was, as said in Oman, here there was no intent not to.

[00:10:26] Speaker 05:
Let me ask you in a different way.

[00:10:27] Speaker 05:
You would agree that a complete refusal to respond to questionnaires or an investigation warrants adverse inferences, right?

[00:10:36] Speaker 03:
Flat out refusal, but that's not the case here.

[00:10:40] Speaker 05:
Well, go with me.

[00:10:43] Speaker 05:
If commerce rejects it because you didn't file on time and that's proper, we determine that that's not an abuse of discretion, then you didn't supply information that they required.

[00:10:56] Speaker 05:
Why isn't that the same?

[00:10:58] Speaker 05:
Why isn't that a basis for adverse inferences?

[00:11:00] Speaker 05:
They don't have the information on the record that they require to make a determination of countervailing duties here.

[00:11:07] Speaker 05:
And so to encourage parties to comply with their burdens, with their obligation to respond, they impose an adverse inference.

[00:11:18] Speaker 03:
This was not an outright refusal.

[00:11:22] Speaker 03:
There were best efforts to cooperate to the best of one's ability.

[00:11:26] Speaker 03:
There was no refusal to cooperate.

[00:11:30] Speaker 03:
There was no concealment.

[00:11:33] Speaker 03:
There was an all out effort to cooperate.

[00:11:36] Speaker 05:
So what's the consequence then of refusing to, of not complying with deadlines if they can't say adverse inferences because we don't have the information?

[00:11:47] Speaker 05:
I mean, it sounds like your view is, well, even if commerce was okay within their discretion of not accepting this, they still can't do anything about it because we tried, even though we failed.

[00:11:58] Speaker 05:
Let's just ratchet up the hypothetical.

[00:12:00] Speaker 05:
I know your view is it wasn't intentional here.

[00:12:04] Speaker 05:
Let's assume it was gross negligence in not getting in on the deadlines.

[00:12:10] Speaker 05:
Would that be a basis for AFA?

[00:12:16] Speaker 05:
I don't think there's a gross negligence standard.

[00:12:18] Speaker 05:
Well, there shouldn't be, but I'm just asking you, would that be enough?

[00:12:21] Speaker 05:
You seem to think that some kind of attempt to comply, even though you failed to comply, and the basis of the hypothetical is that commerce was right and excluding it, that that still can't be the basis for AFA.

[00:12:37] Speaker 05:
And I'm wondering what the consequences are.

[00:12:39] Speaker 05:
for commerce overall if it can't impose AFA when companies fail to supply the documents they requested.

[00:12:47] Speaker 03:
Actually, we provided a number of commerce decisions.

[00:12:50] Speaker 03:
You've got to live with my hypothetical.

[00:12:53] Speaker 07:
Let me try it this way.

[00:12:55] Speaker 07:
Suppose what Omond says is that the AFA rate has to be sufficient to deter the failure to cooperate.

[00:13:06] Speaker 07:
Here the failure to cooperate seems fairly minor, but I think what Judge Hughes is saying is there's no penalty or no deterrence

[00:13:17] Speaker 07:
which is necessary to deter people from filing late.

[00:13:24] Speaker 07:
So is it possible that in calculating an AFA rate, maybe commerce can to some extent use an AFA rate against you, but only the AFA rate that's necessary to deter the failure to file on time here?

[00:13:42] Speaker 07:
In other words,

[00:13:44] Speaker 07:
It's not permissible to have a draconian rate of over 150 percent, either in Oman or here, as a deterrent for a minor failure to file.

[00:13:57] Speaker 07:
But maybe some partial AFA rate would be appropriate to deter that conduct.

[00:14:04] Speaker 07:
Is that a sensible approach here?

[00:14:06] Speaker 07:
Is it consistent with what Commerce has done in the past?

[00:14:10] Speaker 03:
I think knowing Congress's AFA approach, which is, if I may say, always draconian.

[00:14:19] Speaker 03:
And knowing that, they made their best efforts.

[00:14:23] Speaker 03:
There was no stacking of effort.

[00:14:25] Speaker 07:
And I think the record shows that.

[00:14:26] Speaker 07:
I'm trying to elaborate on what Judge Hughes was asking about.

[00:14:30] Speaker 07:
I'm saying, wouldn't it be permissible for them to use a partial AFA rate

[00:14:35] Speaker 07:
to deter even a minor failure to file on time, as long as it's proportionate to the misconduct, whatever.

[00:14:46] Speaker 07:
But here, this draconian large AFA rate for a minor failure to comply

[00:14:53] Speaker 07:
seems inappropriate.

[00:14:56] Speaker 07:
Maybe a total AFA rate is appropriate if there's an entire failure, a deliberate failure to cooperate.

[00:15:03] Speaker 07:
But here, there's a minor failure.

[00:15:05] Speaker 07:
I'm just trying to ask whether there is, in fact, as Judge Hughes suggested, some remedy here that commerce can impose in terms of an AFA rate, which doesn't go the whole hog of a draconian large rate, but does something

[00:15:20] Speaker 07:
to deter people from filing late.

[00:15:23] Speaker 07:
Do you understand what I'm saying?

[00:15:25] Speaker 07:
I hope so, actually.

[00:15:28] Speaker 02:
Can I insert myself?

[00:15:29] Speaker 02:
Because I guess if you're not going to respond, maybe I can give you a response.

[00:15:34] Speaker 02:
Well, go ahead.

[00:15:35] Speaker 02:
If you want to respond.

[00:15:36] Speaker 02:
But I think there is a response.

[00:15:37] Speaker 03:
I think the purpose of AFA is to encourage cooperation.

[00:15:41] Speaker 03:
And in this situation, the possible 160%

[00:15:50] Speaker 03:
It doesn't encourage cooperation when cooperation is not possible.

[00:15:54] Speaker 07:
It seems disproportionate to what happened here.

[00:15:57] Speaker 07:
But what I'm asking is, can't they do something in the way of an AFA rate that's a deterrent, say, an additional 5% dumping margin or something like that?

[00:16:11] Speaker 07:
I mean, is that a conceivable remedy here, an approach to this problem?

[00:16:17] Speaker 03:
Well, I can see what was said in Oman, Fastener, and some other decisions that you can't go draconian under situations.

[00:16:25] Speaker 03:
Sure.

[00:16:26] Speaker 03:
And so I can see from that rationale you could go for a reasonable way.

[00:16:30] Speaker 03:
Mr. Koenig, you have to stop.

[00:16:31] Speaker 05:
And I started asking a question.

[00:16:34] Speaker 05:
That's our precedent on AFA altogether.

[00:16:37] Speaker 05:
You can't impose a punitive measure under AFA, right?

[00:16:42] Speaker 05:
It has to be designed to remedy the misconduct.

[00:16:45] Speaker 05:
Right.

[00:16:45] Speaker 05:
And so we look at that under our regular AFA precedent and determine whether the rate that commerce selected was an appropriate rate designed to determine misconduct.

[00:16:59] Speaker 05:
And if that's too much, then we order them to look at it again.

[00:17:03] Speaker 05:
There's already that precedent, right?

[00:17:07] Speaker 05:
The answer is yes, there's already that precedent.

[00:17:10] Speaker 05:
Here they looked at it and they said the maximum taxes in Kazakhstan are 20% and here are eight possible categories where you could have been given tax free treatment and gotten a subsidy of 20%.

[00:17:27] Speaker 05:
And therefore, we're going to impose the AFA rate of 160% because that's the possible subsidy you could be getting under this regime.

[00:17:41] Speaker 05:
Let's assume AFA was proper, not on these facts, but you had refused to comply altogether.

[00:17:48] Speaker 05:
Would that 160% be an appropriate AFA rate?

[00:17:52] Speaker 03:
Well, the way to fully describe how the 160% was calculated

[00:17:58] Speaker 03:
They said, in Kazakhstan, the tax rate on income.

[00:18:01] Speaker 05:
Can I just get a yes or no to my question?

[00:18:03] Speaker 05:
I don't want to delve into it.

[00:18:05] Speaker 03:
OK, the answer is 160% no.

[00:18:08] Speaker 03:
It's not reasonable under any circumstances.

[00:18:10] Speaker 05:
And why is that?

[00:18:12] Speaker 05:
If that's equivalent to the subsidy you would have gotten.

[00:18:15] Speaker 05:
I know you have an explanation of why that doesn't work under the taxes.

[00:18:18] Speaker 03:
It couldn't possibly be the subsidy.

[00:18:20] Speaker 05:
Let's assume it was.

[00:18:22] Speaker 05:
If it was the subsidy, if Commerce's rationale is correct, I don't want to

[00:18:26] Speaker 05:
to debate that now.

[00:18:27] Speaker 05:
That's one step down from what I'm asking.

[00:18:29] Speaker 05:
If commerce's rationale is correct and that 160% is the subsidy you are getting from Kazakhstan, isn't that an appropriate AFRA rate?

[00:18:41] Speaker 03:
I mean, you're assuming the conclusion when you ask me that question.

[00:18:45] Speaker 05:
Yes, because I'm asking you a hypothetical that these commerce's calculations represent the actual subsidy.

[00:18:53] Speaker 05:
By definition, that's an appropriate AFA rate, because the AFA rate can be the subsidy plus something for deterrence, right?

[00:19:02] Speaker 02:
Yeah.

[00:19:04] Speaker 02:
Can I just follow up a little, and I hope the government, I think the government will agree with what I'm about to say, but I'm not sure, and I hope I'll hear from them.

[00:19:13] Speaker 02:
As Oman Fasteners, our opinion in Oman Fastest, points out,

[00:19:18] Speaker 02:
There are two separate provisions that apply here when there's a problem or failure to cooperate.

[00:19:24] Speaker 02:
One is A, and the result of that is you use facts available.

[00:19:28] Speaker 02:
In other words, you reject the submission as being untimely, but then they use facts available.

[00:19:34] Speaker 02:
A more draconian remedy is AFA, which is found in a separate statutory provision, EB.

[00:19:43] Speaker 02:
So why, I guess, is your answer to Judge Hughes that it's not AFA or nothing?

[00:19:51] Speaker 02:
That even if there were a problem, at least one would say there's another provision.

[00:19:57] Speaker 02:
And I think the government lays this out pretty clearly at page 34 of their brief, that there are two separate ways to deal with problems in timely submissions.

[00:20:10] Speaker 02:
to take facts available, which means they're going to reject your submission and just use other facts.

[00:20:15] Speaker 02:
And the more draconian one is the AFA.

[00:20:18] Speaker 02:
So do you agree with me that there are two separate ways to remedy or to deal with an untimely filing?

[00:20:28] Speaker 02:
And then there's, of course, the other, which is to just accept it.

[00:20:32] Speaker 02:
Do you agree with me?

[00:20:33] Speaker 02:
Or do you know what I'm talking about?

[00:20:35] Speaker 02:
Yeah, I agree with that.

[00:20:37] Speaker 02:
All right.

[00:20:38] Speaker 02:
Can I ask you one other unrelated question?

[00:20:40] Speaker 02:
Judge, can I ask one more question?

[00:20:43] Speaker 02:
Yeah.

[00:20:43] Speaker 02:
Just you refer, I think, in your blue brief repeatedly to the fact that, well, Commerce did all this stuff because of COVID and extended deadlines or did something with respect to its operations as a result of COVID.

[00:20:57] Speaker 02:
Am I right about that?

[00:20:59] Speaker 02:
And if so, where's the citation for what they did?

[00:21:02] Speaker 02:
What did they do in terms of giving themselves more time to deal with matters, et cetera?

[00:21:08] Speaker 03:
Well, there was a citation in our brief.

[00:21:10] Speaker 03:
Actually, across the board, they extended deadlines.

[00:21:13] Speaker 02:
For themselves, or not for the parties, or for themselves or for the parties?

[00:21:19] Speaker 03:
For themselves, as far as preliminary and final decisions.

[00:21:22] Speaker 02:
And you have the citation there.

[00:21:24] Speaker 02:
And was that extension applicable and alive at the time this was going on?

[00:21:31] Speaker 03:
It was during the same time period as far as COVID.

[00:21:34] Speaker 03:
It wasn't exactly the same, but it was during that timeframe.

[00:21:39] Speaker 03:
And we specifically noted in our filing the problems that TKT was having with COVID as far as staff furloughs.

[00:21:50] Speaker 03:
Do you have a citation in your brief to that?

[00:21:53] Speaker 03:
I didn't know.

[00:21:54] Speaker 03:
There was a citation.

[00:21:55] Speaker 03:
Okay, thank you.

[00:21:57] Speaker 03:
And I would add to that, remember we have six separate companies that are responding and the problems, COVID multiplies that problem enormously because people can't coordinate as easily.

[00:22:08] Speaker 03:
They can't go from one company to the next.

[00:22:10] Speaker 03:
They can't travel.

[00:22:14] Speaker 03:
It was, well, I was citing our brief.

[00:22:17] Speaker 03:
That was the reason.

[00:22:18] Speaker 03:
And we actually requested

[00:22:20] Speaker 03:
For that reason, we requested until September 17, which if that request had been accepted, then our filing would have been, and this was several days before the September 15 deadline.

[00:22:36] Speaker 03:
We requested several days before that, and even before that, that we need until the 17th to meet the deadline.

[00:22:43] Speaker 02:
Okay, you've answered my question.

[00:22:45] Speaker 07:
I think we're out of time.

[00:22:47] Speaker 07:
We'll give you two minutes for a model.

[00:23:10] Speaker 04:
May it please the court.

[00:23:11] Speaker 07:
This court should affirm that... So this looks to be perhaps inconsistent with OMON in the sense that OMON says that a minor failure to comply shouldn't result in a draconian AFA rate.

[00:23:27] Speaker 07:
And there may be distinctions between this case and Oman.

[00:23:32] Speaker 07:
In some ways, this case is more favorable to the importer because they did actually request the extension of time, which didn't happen in Oman.

[00:23:41] Speaker 07:
But why is it appropriate to apply for a federative to file a couple of hours late?

[00:23:50] Speaker 07:
Why is it appropriate to have this draconian AFA rate?

[00:23:54] Speaker 07:
Maybe it's appropriate to have some AFA rate, but to go as far as commerce did the same penalty that would impose for a total failure to cooperate, that seems wrong, right?

[00:24:06] Speaker 04:
So I would first mention that I think there's a continuum

[00:24:09] Speaker 04:
You know, Oman sits on one end and just completely blowing off sits at one end.

[00:24:14] Speaker 04:
I would submit that this is a lot closer.

[00:24:15] Speaker 04:
Given the circumstances of the filing, the fact that it was incomplete, that's another distinction with Oman.

[00:24:23] Speaker 07:
A distinction which commerce specifically declined to rely on.

[00:24:28] Speaker 04:
Well, in the preliminary, they mentioned that, but in the final, they said that this was a supplemental finding.

[00:24:33] Speaker 07:
They were making it clear that the... In the final decision, they said, we're not relying on incompleteness, right?

[00:24:40] Speaker 04:
I believe that they said in the preliminary findings that the basis for the rejection was not the completion, but the rejection of the extension that was a circumstance... In the final decision, they said, we're not relying on incompleteness, right?

[00:24:54] Speaker 04:
The incompleteness was not the big, was in and of itself.

[00:24:59] Speaker 07:
No, they said we're not relying on it at all.

[00:25:02] Speaker 02:
And you didn't, you in your brief, you didn't offer that up as an alternative basis for affirmance or anything like that.

[00:25:08] Speaker 02:
You treated it as an aside.

[00:25:10] Speaker 04:
we treated it as one of the many circumstances justifying the commerce not as a factor but not as an alternative basis for things.

[00:25:20] Speaker 02:
Can I go back to the discussion we were having with your friend, all three of us were having, which is tell me if I'm wrong.

[00:25:28] Speaker 02:
If somebody does something wrong, forget where we are in the spectrum, there's a range of what commerce could do.

[00:25:34] Speaker 02:
It could grant to the extension,

[00:25:37] Speaker 02:
It could find under subsection A facts available and use facts available and reject the submission.

[00:25:46] Speaker 02:
And at the other extreme, it could award an AFA payment.

[00:25:52] Speaker 02:
Is that the scheme we're dealing with?

[00:25:54] Speaker 02:
I mean, because when Judge Dyke refers to a lesser AFA, isn't there a lesser AFA, which is facts available?

[00:26:02] Speaker 02:
Or am I misreading the statute?

[00:26:04] Speaker 02:
I thought that's the way you laid it out actually nicely at page 34 of your brief.

[00:26:08] Speaker 04:
I think that characterization is broadly correct.

[00:26:12] Speaker 04:
I think in terms of facts available and adverse facts available, there's also a question of what does it mean to apply adversity?

[00:26:22] Speaker 04:
You can have facts available, and then what's the magnitude of the adversity that applies here?

[00:26:27] Speaker 04:
I think one of the things that's complicating here is that

[00:26:32] Speaker 04:
There's discussion of it's draconian, but draconian compared to what?

[00:26:35] Speaker 04:
What would the rape be?

[00:26:36] Speaker 02:
No, I understand.

[00:26:37] Speaker 02:
On Oman, how do you read Oman?

[00:26:40] Speaker 02:
And do you think Oman applies here?

[00:26:42] Speaker 02:
Or do you think the facts are distinguishable?

[00:26:44] Speaker 04:
I think the facts are very distinguishable.

[00:26:46] Speaker 04:
And I think the AFA issue there, where you had a 0 or 1% rate versus 150-some percent rate, the court looked at that and said, given the nature of what went on here, that's draconian.

[00:26:59] Speaker 07:
But we don't know what the rape would be here, right?

[00:27:03] Speaker 07:
Well, I think that goes to the... Without AFA, we don't know what the rate would be.

[00:27:11] Speaker 04:
We don't know precisely, partly because they didn't submit all the information.

[00:27:15] Speaker 07:
It could be zero.

[00:27:16] Speaker 07:
We don't know, right?

[00:27:18] Speaker 04:
Well, they did not submit the BPI.

[00:27:20] Speaker 07:
That's correct.

[00:27:21] Speaker 04:
We don't know, right?

[00:27:23] Speaker 04:
We don't know precisely... We don't know imprecisely.

[00:27:29] Speaker 07:
We don't know what the rate would have been.

[00:27:33] Speaker 05:
If we agree that commerce excluded these documents but find that AFA was unavailable and you should have just used available facts or whatever the term is, I've already messed it up.

[00:27:46] Speaker 05:
But how would you go about doing that?

[00:27:49] Speaker 05:
So you keep out that late submission, what would you then look at?

[00:27:55] Speaker 04:
I think that's the challenge because what is available is that 20% rate.

[00:28:00] Speaker 04:
And that's what... But that wouldn't always be the case.

[00:28:04] Speaker 02:
As a matter of principle, if we knock out... OMON knocks out the AFA rate, let's assume hypothetically that we construe OMON is knocking out the AFA rate, and therefore what are we left with in this case?

[00:28:18] Speaker 04:
Well, I think what's OK, so if we have adverse facts available, the question then becomes, OK, what sort of lesser than full adversity is there?

[00:28:29] Speaker 04:
And really all there is is that 20% rate.

[00:28:32] Speaker 04:
In the reply brief, counsel mentions, well, speculate that there's some problem.

[00:28:36] Speaker 04:
And that's just totally speculative.

[00:28:38] Speaker 04:
What is available?

[00:28:39] Speaker 04:
Is that 20%?

[00:28:39] Speaker 07:
Well, the 20% doesn't allow any costs.

[00:28:45] Speaker 04:
Well, the 20% was based off of the income tax, and that's the information they had, and that's what was applied.

[00:28:51] Speaker 04:
So it's a discretionary term.

[00:28:52] Speaker 07:
So you're saying there's nothing you can do except the draconian penalty, because you don't have any other information?

[00:28:59] Speaker 04:
I think the question is, does Commerce exercise discretion reasonably when it looked to that percentage, looked and saw nothing else there, and then applied it?

[00:29:06] Speaker 04:
Was that a reasonable exercise of discretion?

[00:29:07] Speaker 07:
Did Commerce say there wasn't anything else?

[00:29:10] Speaker 04:
My recollection is that that was the information.

[00:29:14] Speaker 02:
I don't know whether that's true in this case or not.

[00:29:16] Speaker 02:
I have no idea.

[00:29:17] Speaker 02:
But that's not the theoretical standard we apply.

[00:29:20] Speaker 02:
Isn't there an assumption based on the statute of language that AFA is more draconian and tougher and larger generally than the facts available remedy?

[00:29:34] Speaker 02:
AFA applies adversity to the facts available.

[00:29:37] Speaker 02:
Right, so it's a hardship.

[00:29:38] Speaker 02:
Can I ask you, if we were hypothetically to decide that OMON applies here, at least to the adverse facts available, the AFA can't apply here.

[00:29:52] Speaker 02:
Don't we also have to reach a second question, which is, OK, we've given that in terms of whether Congress acted appropriately in rejecting the information?

[00:30:04] Speaker 02:
In other words, another question before us that I don't think was before OMON was before the district court and the CIT court is, should commerce have granted the extension?

[00:30:14] Speaker 02:
Because if we say commerce erred in not granting the extension, then the submissions come in.

[00:30:20] Speaker 02:
and then we're dealing with an entirely different case, right?

[00:30:23] Speaker 02:
So isn't that a second issue that has to be dealt with in our case?

[00:30:28] Speaker 02:
Assuming we find Oman compels a withdrawal of the AFA, right?

[00:30:34] Speaker 04:
I think one big distinction is that even if one does accept that filing, it's still missing the BPI information.

[00:30:40] Speaker 02:
Okay, but before we go to that, I'm just asking for what the steps are.

[00:30:43] Speaker 02:
What the result, consequence of the steps, I don't know, and I'm not going to debate, but

[00:30:48] Speaker 02:
AFA, assume hypothetically we say it wouldn't apply in these circumstances are close enough to OMON so that AFA doesn't apply.

[00:30:55] Speaker 02:
Next step is to say, which also is presented in this case, this is a question, whether or not commerce acted

[00:31:06] Speaker 02:
arbitrarily or whatever standard we use, abuse is discretion in rejecting the submissions, then we have to decide whether the submissions come in at all.

[00:31:17] Speaker 02:
And if they come in, that's a different consequence.

[00:31:19] Speaker 02:
Isn't this a two-step analysis by us?

[00:31:21] Speaker 02:
Assuming we get...

[00:31:23] Speaker 04:
get rid of a fat yet broadly my understanding is you look at the extension and whether there was whether commerce exercises discretion reasonably in saying we're not going to retroactively grant or you know belatedly accept this and then the question becomes okay do you assign is the a theory

[00:31:41] Speaker 04:
You know, for facts available, I understand counsel to not be disputing facts available.

[00:31:45] Speaker 04:
It's really the question of adversity.

[00:31:47] Speaker 02:
And so, did commerce rationally... Well, I thought he did.

[00:31:51] Speaker 02:
I mean, we could ask him to be sure, but I thought he was complaining about not granting the extension.

[00:31:56] Speaker 02:
So, I thought even beyond facts available, even if we find AFA doesn't apply in this case, we're still

[00:32:03] Speaker 02:
reviewing the arbitrary capriciousness or whatever standard we use as to whether the extension should have been granted.

[00:32:12] Speaker 02:
That will lead us to an answer not just for AFA, but whether or not the document should have been excluded.

[00:32:19] Speaker 04:
I think that's the first inquiry is what did commerce rationally exercise a discretion there and then assuming it's rejected, was the exercise to apply the 160 rate based off of AFA rational?

[00:32:31] Speaker 04:
And what I'm submitting is that the facts available aspect

[00:32:35] Speaker 04:
If we're in that universe where the filing is not accepted, that is not disputed.

[00:32:39] Speaker 04:
It's really the adversity.

[00:32:41] Speaker 04:
And the adversity has that incentive to cooperate.

[00:32:45] Speaker 02:
So the question is... So you don't think he's rejecting the notion that the filing should have been rejected in its entirety?

[00:32:52] Speaker 02:
You don't think he's appealing that?

[00:32:53] Speaker 04:
Well, assuming that the court agrees with our position, that that was properly rejected, and then the question is what raises it?

[00:33:01] Speaker 02:
Yeah, but that's a question.

[00:33:02] Speaker 02:
That's an issue before us.

[00:33:03] Speaker 02:
Correct.

[00:33:04] Speaker 02:
Oh, OK.

[00:33:04] Speaker 02:
All right.

[00:33:05] Speaker 02:
So it's a two-step.

[00:33:06] Speaker 02:
My step started at FAA and went backwards.

[00:33:08] Speaker 02:
You start at the first.

[00:33:10] Speaker 05:
Well, if we order you to accept the filing,

[00:33:14] Speaker 05:
Do we even need to get to the AFA question?

[00:33:16] Speaker 05:
If you have to accept the filing, then don't we just send it back until you look at what's on the record and what you have and make a determination from the record, including his submission?

[00:33:28] Speaker 05:
Because we can't review an AFA filing based on a record that doesn't include his submission because that's not what Commerce based its decision on.

[00:33:37] Speaker 04:
I think it would change the nature of a remand

[00:33:40] Speaker 04:
of what to consider if that's the case.

[00:33:43] Speaker 05:
If we ordered you to accept the filing.

[00:33:46] Speaker 05:
Correct, because the record before the court... Can I just ask you... I know it's over time.

[00:33:49] Speaker 05:
Can I ask another question?

[00:33:52] Speaker 05:
I mean, OMONC seems like it's clearly about mere negligence.

[00:33:56] Speaker 05:
What additional... and that seems like an entirely appropriate situation not to apply an adverse inference.

[00:34:02] Speaker 05:
Frankly, you should have been ordered to accept the...

[00:34:05] Speaker 05:
the filing there.

[00:34:07] Speaker 05:
You got yourself into trouble with that case by not doing it.

[00:34:10] Speaker 05:
But what additional factors would you consider in a late filing situation that would change it from just mere negligence to actual non-cooperation?

[00:34:23] Speaker 05:
For instance, would a history of non-cooperation by the party be a factor?

[00:34:30] Speaker 04:
I think it's a broad, flexible inquiry and that all goes into it.

[00:34:33] Speaker 05:
What about a history of non-cooperation by the attorney representing the party?

[00:34:38] Speaker 04:
I think that's one of the factors commerce can consider.

[00:34:40] Speaker 04:
I would point to appendix page 215 where it mentions that inattentive carelessness and inadequate record keeping can be not meeting best of ability, which is the standard

[00:34:51] Speaker 04:
for AFA.

[00:34:52] Speaker 04:
So this gross negligence or however one wants to frame it can be a basis for finding a failure to cooperate.

[00:34:59] Speaker 04:
And then with respect to the specific circumstances, whether or not the rate comparing that to whether it merits the nature of the infraction, I would submit it would.

[00:35:08] Speaker 04:
And I would also mention that.

[00:35:09] Speaker 07:
So but why isn't the failure to accept this arbitrary in these circumstances?

[00:35:15] Speaker 07:
I mean, just, you know, they asked for a one-day extension.

[00:35:19] Speaker 07:
They, unlike Oman, they timely filed for the extension.

[00:35:24] Speaker 07:
Why is it arbitrary to deny them one day?

[00:35:30] Speaker 04:
Because it still wasn't complete after day.

[00:35:34] Speaker 07:
Commerce specifically said they're not relying on that.

[00:35:38] Speaker 07:
They're not reaching that question.

[00:35:40] Speaker 07:
So you can't offer that as a basis for affirming commerce.

[00:35:44] Speaker 07:
They said, we're not addressing that at all.

[00:35:48] Speaker 04:
I believe in the IDM with respect to the... Just accept for the moment.

[00:35:53] Speaker 07:
I can show you the place where they say it in the final decision.

[00:35:57] Speaker 07:
We don't need to get into that.

[00:35:58] Speaker 07:
Let's assume I'm right.

[00:36:00] Speaker 07:
They refuse to consider that.

[00:36:01] Speaker 07:
You can't rely on that here.

[00:36:03] Speaker 07:
Why isn't it arbitrary to deny a one-day extension under these circumstances?

[00:36:09] Speaker 04:
Well, I think this is the third extension.

[00:36:12] Speaker 04:
Commerce has a 140-day statutory obligation to determine a rate.

[00:36:16] Speaker 04:
This is not the first round, so to speak.

[00:36:18] Speaker 04:
They were further in.

[00:36:19] Speaker 05:
And Commerce exercised its discretion and said... If this had been the first extension request, would you agree that it would have been arbitrary not to accept the document?

[00:36:30] Speaker 02:
I think it would take away one of the reasons I'm offering.

[00:36:33] Speaker 02:
But that's a kind of tricky question, isn't it?

[00:36:35] Speaker 02:
Because literally, you're right.

[00:36:37] Speaker 02:
You granted two extension requests.

[00:36:39] Speaker 02:
But if you had granted the first for two weeks, you wouldn't have had the second.

[00:36:44] Speaker 02:
He asked for two weeks, you give them one, and then he comes back and he says, can we get a second week?

[00:36:50] Speaker 02:
And you say yes.

[00:36:51] Speaker 02:
So technically that is, I guess, two extension requests, but that was only made necessary because when they came in at first, they asked for two weeks and you said, no, you can't have two weeks without a rationale.

[00:37:03] Speaker 02:
You could only have one week.

[00:37:04] Speaker 02:
Am I just correct in laying out the record here?

[00:37:07] Speaker 04:
When one says it was necessary, I think one needs to look at to say what is the nature of the issue that requires that to be necessary.

[00:37:14] Speaker 04:
And I don't think Congress was all convinced that this was actually necessary.

[00:37:18] Speaker 04:
I think they were reflected a lack of attentiveness because the only issue there's a bare bones.

[00:37:23] Speaker 04:
you know, one hour before the deadline extension saying technical issues.

[00:37:27] Speaker 02:
No, I thought we were talking about the first two extensions.

[00:37:29] Speaker 02:
You said this, they granted two extensions.

[00:37:31] Speaker 02:
I was talking about those two extensions, but they were only two extensions because you rejected the first for two weeks.

[00:37:38] Speaker 02:
You only gave them one week and then they had to come in for a second one.

[00:37:41] Speaker 02:
So technically, yes, you granted them two extensions, but that was, they had asked for that time in the first extension, which you rejected.

[00:37:50] Speaker 04:
I think that should also just serve as an indication to counsel to,

[00:37:53] Speaker 04:
you know, make sure that things were getting in order if they're only granting them in part, and I think that speaks to the lack of attentiveness.

[00:37:59] Speaker 02:
Can I ask you, just, there's a CIT opinion, I know there are a lot of those, and this isn't finding on us, but it was written a little while ago by Judge Pogue.

[00:38:08] Speaker 02:
Grow Best, are you familiar with that?

[00:38:10] Speaker 02:
uh... that does not come to mind i'm looking for the standard that the government would articulate kind going back to what judge use was looking at uh... and i don't think this was a effect but in a minute if he concludes by saying that's while deferring to commerce is necessary discretion to set and enforce deadlines the court will review on a case-by-case basis whether the interests of accuracy and fairness outweigh the burden placed on the department and the interest in finale

[00:38:39] Speaker 02:
Do you view that, the government view that as a correct statement of what the standard ought to be?

[00:38:44] Speaker 04:
And I think we mentioned our brief.

[00:38:45] Speaker 04:
It's not a bright line factor test.

[00:38:47] Speaker 04:
It's a flexible discretionary.

[00:38:48] Speaker 02:
Did you say yes was your first answer?

[00:38:50] Speaker 04:
Yes.

[00:38:50] Speaker 04:
Those factors are among those considered in the Bebitz case, which was a CIT case where, you know, counsel for TKT was counsel and an eerily similar thing happened.

[00:38:59] Speaker 04:
So I think this goes to the past history thing where, you know, you look at the Bebitz case and you had a very similar issue.

[00:39:06] Speaker 04:
What about the COVID matter?

[00:39:08] Speaker 04:
COVID was not cited as a reason for the third extension.

[00:39:11] Speaker 04:
It was for the first two.

[00:39:12] Speaker 04:
So council cannot rely on COVID as such as a basis for what actually happened here.

[00:39:18] Speaker 07:
If they'd gotten the first two extensions, they would have been timely, right?

[00:39:23] Speaker 04:
I'm sorry, can you repeat?

[00:39:24] Speaker 07:
If they'd gotten the requested extensions, the first two extensions,

[00:39:28] Speaker 07:
they would have been timely because that would have, the extension would have covered this period.

[00:39:33] Speaker 04:
Not the first one, the second one.

[00:39:35] Speaker 02:
Well, the first, their request for the extension was 10 days.

[00:39:38] Speaker 02:
You only granted half of their extension.

[00:39:41] Speaker 02:
So it wouldn't have been, it would, their request covered it.

[00:39:44] Speaker 04:
It's just that you cut it in half.

[00:39:46] Speaker 04:
The first one I think went to September 14th and we're talking about 15 into 16.

[00:39:51] Speaker 07:
But if they granted the second extension through the 17th, they would have been timely, right?

[00:39:56] Speaker 04:
It would have been timely, but still incomplete.

[00:39:58] Speaker 04:
But still, I'm sorry.

[00:39:59] Speaker 04:
Incomplete.

[00:40:00] Speaker 05:
But they're not arguing that your decisions on those first two requests were an abuse of discretion, were they?

[00:40:05] Speaker 04:
I think they are.

[00:40:05] Speaker 04:
To the extent they are, the first one, there's no prejudice, because it's already to the 14th.

[00:40:11] Speaker 04:
And then the second one, they're arguing that that would be a basis there.

[00:40:17] Speaker 04:
But I think given the totality of the circumstances, adding up

[00:40:22] Speaker 04:
This is very distinguishable from OMON, which was a slight error of 15 minutes.

[00:40:29] Speaker 04:
We're talking a repeated error.

[00:40:30] Speaker 07:
Is there a big difference between 15 minutes and two hours?

[00:40:33] Speaker 02:
Both of what you're dealing with, the filing thing, and they submitted documentation as to the problem they were having in the filing.

[00:40:39] Speaker 04:
A very big distinction is the automatic 15 and a half hour extension, where counsel before was ignorant of that policy.

[00:40:46] Speaker 07:
So they're worse off here because they asked for an extension instead of just running past the deadline the way they did in Oman?

[00:40:53] Speaker 07:
In Oman, if counsel would have filed a very short thing at $4.58 or whatever... The answer is yes, they're worse off because they actually filed for an extension here as opposed to Oman where they didn't.

[00:41:03] Speaker 04:
Well, I think it's a circumstance that shows... You answer my question.

[00:41:07] Speaker 07:
Are they worse off here because they filed for an extension whereas in Oman they didn't?

[00:41:15] Speaker 04:
They're not worse off because they still blew the deadline after getting the extension.

[00:41:20] Speaker 04:
At Oman, if they would have done that automatic 15-hour, they would have gotten it.

[00:41:23] Speaker 05:
When would the deadline have been if they hadn't filed the extension request?

[00:41:26] Speaker 05:
It would have been 5 p.m.

[00:41:28] Speaker 05:
on the Friday.

[00:41:29] Speaker 05:
On the 15th.

[00:41:31] Speaker 04:
And they filed it at like 3.30 on Monday.

[00:41:36] Speaker 01:
No.

[00:41:37] Speaker 04:
So they filed at 3.50 on the 15th an extension request.

[00:41:41] Speaker 05:
No, no, I'm talking about the scenario where they didn't file an extension request.

[00:41:45] Speaker 05:
They didn't file 15 minutes later after the deadline.

[00:41:49] Speaker 04:
Are you talking about Oman?

[00:41:50] Speaker 05:
No, here.

[00:41:52] Speaker 04:
They filed 70 minutes before the deadline.

[00:41:54] Speaker 05:
No, no.

[00:41:55] Speaker 05:
Take away the automatic extension request.

[00:41:57] Speaker 05:
The deadline was Friday at 5.

[00:42:01] Speaker 05:
Is that a Friday?

[00:42:03] Speaker 05:
Did it go over the weekend?

[00:42:05] Speaker 05:
Or did it?

[00:42:05] Speaker 04:
It was September 15th of 2020 at 5 p.m.

[00:42:09] Speaker 04:
and then the extension became the next day, September 16th at 8 30 a.m.

[00:42:13] Speaker 04:
by operation of the automatic extension.

[00:42:16] Speaker 05:
But they didn't file 15 minutes after the deadline, right?

[00:42:19] Speaker 04:
Well in Oman it was at 5 16 of the same day.

[00:42:23] Speaker 05:
I don't think you're understanding what I'm asking.

[00:42:27] Speaker 05:
The question was, were they worse off here because they filed the extension request?

[00:42:30] Speaker 05:
If they hadn't filed an extension request, when they filed these actual documents, it was not 15 minutes after the deadline, right?

[00:42:39] Speaker 05:
It was the next day.

[00:42:40] Speaker 04:
It would have been like 17 hours after the deadlines.

[00:42:43] Speaker 04:
But it's automatic.

[00:42:46] Speaker 04:
Well, if you incorporate the automatic extension, it's like two hours late approximately.

[00:42:52] Speaker 04:
If they didn't do an extension file like in OMON, it would be like 17 hours late.

[00:42:57] Speaker 02:
Right, but they did.

[00:42:58] Speaker 02:
And that's automatic.

[00:42:59] Speaker 02:
So that's not a discretionary thing.

[00:43:01] Speaker 02:
The Commerce Department didn't have the discretion.

[00:43:04] Speaker 02:
So it's not, yeah, right, for that extension.

[00:43:08] Speaker 02:
So in terms of what you're defining as they're being late, you're not penalizing them from the time from 5 p.m.

[00:43:15] Speaker 02:
to 8.30 a.m., because that extension is automatic, right?

[00:43:19] Speaker 02:
So you're not penalizing them for that delay, right?

[00:43:24] Speaker 04:
If they would have filed between that time period, I don't think there would be an untimely issue, but the fact that... No, answer my question.

[00:43:30] Speaker 02:
Do you think in terms of how late they were, they should be penalized in terms of their lateness for the period between 5 p.m.

[00:43:40] Speaker 02:
and 8.30 a.m., even though that extension is automatic?

[00:43:45] Speaker 02:
I think blowing past two deadlines just increases... I answer my question.

[00:43:48] Speaker 02:
I'm talking about this one piece of it.

[00:43:52] Speaker 02:
If the facts, if they, are you counting against them?

[00:43:58] Speaker 02:
The fact that they didn't file at 5 p.m.

[00:44:01] Speaker 02:
when, as I understand it, that extension is automatic.

[00:44:05] Speaker 02:
That wasn't something that Congress had the discretion to reject.

[00:44:09] Speaker 02:
So I guess I'm just thinking the time extent, they were late an hour and a half.

[00:44:16] Speaker 02:
I don't see how you get 17 hours when you're talking about an extension that was automatic that Congress didn't have the discretion to reject.

[00:44:24] Speaker 04:
So here's how I would frame it.

[00:44:26] Speaker 04:
They were late an hour and a half, but the fact that they had this time and didn't take advantage of it, I think, is a factor.

[00:44:31] Speaker 07:
There's no showing they didn't take advantage of it.

[00:44:35] Speaker 07:
That's not in the record.

[00:44:36] Speaker 04:
Well, what's in the record is that there was a hyperlink issue.

[00:44:39] Speaker 04:
They attached a document at 3.50 showing that was the only issue.

[00:44:42] Speaker 04:
Commerce has helped

[00:44:43] Speaker 04:
a page on that saying how you resolve it.

[00:44:46] Speaker 04:
In Oman, they resolved the issue.

[00:44:48] Speaker 04:
They thought it would take 20 minutes.

[00:44:49] Speaker 04:
It took 45.

[00:44:50] Speaker 04:
It had 17 hours.

[00:44:52] Speaker 07:
I think that's enough of that.

[00:44:53] Speaker 07:
Let me ask you a question.

[00:44:54] Speaker 07:
Suppose we decide that it was arbitrary and capricious for Commerce to deny them the one-day extension.

[00:45:01] Speaker 07:
Let's just assume that, okay?

[00:45:04] Speaker 07:
And that under those circumstances, Commerce has to consider the submission

[00:45:11] Speaker 07:
Under those circumstances, can commerce apply some partial AFA rate to deter the late filing?

[00:45:23] Speaker 04:
I think it would be very speculative because the fact is the 20% is there.

[00:45:27] Speaker 04:
No, no, no.

[00:45:28] Speaker 07:
That's what hypotheticals are.

[00:45:29] Speaker 04:
So if they split the difference, is it to... Now please answer my question.

[00:45:33] Speaker 07:
You seem to be having difficulty answering questions.

[00:45:35] Speaker 07:
You understand my question?

[00:45:37] Speaker 07:
Let's assume it's arbitrary and capricious to refuse to accept the filing.

[00:45:41] Speaker 07:
You have to accept the filing.

[00:45:43] Speaker 07:
Can commerce nonetheless say, because of the failure to file on time, we are to some extent applying an AFA rate?

[00:45:53] Speaker 04:
potentially if there's a remand for an incomplete submission.

[00:45:55] Speaker 02:
How on earth could they apply an AFA if we find that they needed to have granted the extension?

[00:46:03] Speaker 02:
That's a given in the scenario, i.e.

[00:46:06] Speaker 02:
the extension was granted.

[00:46:07] Speaker 02:
How then would it be appropriate in any way, shape, or form to say we're still going to penalize you under AFA?

[00:46:14] Speaker 04:
Well, I don't think the AFA case is as strong if those are the circumstances.

[00:46:18] Speaker 05:
I mean, if we order you to accept the document,

[00:46:22] Speaker 05:
then by definition, they complied with their burden because they completed the production.

[00:46:30] Speaker 05:
So then you would just be looking at facts available if it was insufficient, right?

[00:46:36] Speaker 05:
It wouldn't be adverse facts available.

[00:46:39] Speaker 04:
if they granted the extension... I just don't understand.

[00:46:46] Speaker 05:
If we decide that it was an abuse of discretion for commerce not to accept the late filing, then what would be the basis for any AFA determination?

[00:47:02] Speaker 05:
Because under that scenario they would have complied with their obligation because they should have gotten the extension So I think it would be very hard I think you suggest it would be very hard for you to play an adverse facts available, right?

[00:47:15] Speaker 05:
You would have to then just go and look at the record with the production and determine what that showed

[00:47:21] Speaker 04:
So then, if that's in that universe, there's the failure to supply the BPI information, which can be in the universe.

[00:47:30] Speaker 04:
And so the question then becomes, if they apply AFA on that basis, it's one less argument we have for that, but it's still

[00:47:39] Speaker 04:
somewhat of a failure not to cooperate if they didn't supply that BPI information.

[00:47:43] Speaker 02:
Can I, I have one final housekeeping question, which is what are the original deadlines for the preliminary and the final determinations and if they were extended by commerce?

[00:47:56] Speaker 02:
on its own, what were those nature of those extensions?

[00:47:58] Speaker 02:
And if you have record sites, that would be appreciated.

[00:48:01] Speaker 04:
So my understanding is that the investigation began in July 20th of 2020 and they have 140 days under statute to complete that.

[00:48:10] Speaker 04:
I am not recalling the preliminary determination at this time.

[00:48:13] Speaker 02:
And then, so you're not recalling the preliminary and then with respect to the final determination.

[00:48:20] Speaker 04:
Well, under statute, they have 140 days to release a final determination, the investigation.

[00:48:24] Speaker 04:
Between the... Between when the investigation's initiated.

[00:48:29] Speaker 05:
From July 20th.

[00:48:30] Speaker 04:
From July 20th.

[00:48:30] Speaker 04:
140 days.

[00:48:31] Speaker 04:
140 days under statute.

[00:48:34] Speaker 07:
How would one day, a one-day extension, prevent Commerce from meeting those deadlines?

[00:48:41] Speaker 04:
You may not like this answer, but I think this comes into the incomplete portion of that where they would still need more information.

[00:48:48] Speaker 04:
And so commerce has to look at the circumstances and draw a line and say, you know, given what occurred here, you know, we're seeing a failure to cooperate.

[00:48:56] Speaker 07:
You keep relying on the incompleteness.

[00:48:58] Speaker 07:
Commerce is 2-0-9 of the record.

[00:49:02] Speaker 07:
And this decision says we're not addressing that specifically.

[00:49:10] Speaker 07:
regarding the argument that commerce may not rely on the incompleteness, we find that this argument is moot.

[00:49:18] Speaker 04:
So I think a finding of mootness goes to, you know, again, within the IDM, they did discuss the incompleteness, and I think that was a consideration in the rejection of the extension motion.

[00:49:30] Speaker 04:
It wasn't you are incomplete, and on that basis, as such, you're out.

[00:49:36] Speaker 02:
Can I just ask you, I'm still on the dates.

[00:49:41] Speaker 02:
July 20th and the final decision was February 22nd, 2021.

[00:49:45] Speaker 02:
There's nowhere close.

[00:49:46] Speaker 02:
That's way beyond 140 days, right?

[00:49:50] Speaker 04:
Based on my math, that would seem to be beyond 140 days.

[00:49:54] Speaker 04:
Way beyond, right?

[00:49:55] Speaker 04:
I'm basing that based on my understanding when it started and what the statute says they need to do it.

[00:50:02] Speaker 04:
I guess commerce

[00:50:04] Speaker 04:
might have gotten beyond that, but it has its statutory obligation of when to do it.

[00:50:09] Speaker 02:
And if you think that had anything to do with the COVID stuff, or you said the COVID stuff didn't affect it?

[00:50:16] Speaker 02:
I mean, did your friend says that they had a four month lag time or something for COVID?

[00:50:23] Speaker 04:
So it's my understanding that commerce had COVID issues at the time.

[00:50:27] Speaker 04:
I wasn't counsel at that time.

[00:50:28] Speaker 04:
But my understanding is that there were COVID issues.

[00:50:31] Speaker 04:
So I can only speculate as to why.

[00:50:33] Speaker 02:
So if there was, in fact, if the time frame between instigation and final determination far exceeded the 140 days, you don't know why that was the case.

[00:50:45] Speaker 02:
I can only speculate.

[00:50:46] Speaker 02:
I don't know exactly.

[00:50:48] Speaker 02:
If commerce goes beyond the 140 days, are they supposed to tell the parties somewhere?

[00:50:52] Speaker 02:
through the process that that's what's happening or the parties just wait and get the decision whenever they get the decision?

[00:51:00] Speaker 04:
I don't know precisely the procedures at the agency for how to do that.

[00:51:05] Speaker 04:
I know their obligation under statute is to do it in 140 days and if it appears they didn't live up to that then you know I guess that's not ideal.

[00:51:18] Speaker 07:
Okay.

[00:51:23] Speaker 07:
Oh, I'm sorry, yes.

[00:51:27] Speaker 07:
Ms.

[00:51:28] Speaker 07:
Smith-Vellas.

[00:51:33] Speaker 00:
Yes, thank you.

[00:51:35] Speaker 00:
Jennifer Smith-Felouz on behalf of the defendant interveners, Globe and Specialty Medals, and Mississippi Silicon.

[00:51:41] Speaker 00:
I'm going to start with that last housekeeping question that Judge Post asked.

[00:51:47] Speaker 00:
Respectfully, the government's lawyer was incorrect about the timing.

[00:51:52] Speaker 00:
Under the regulations, the Congress's original preliminary determination in a CBD investigation is only 65 days.

[00:52:02] Speaker 00:
And the full extension, which was done here, is 130 days.

[00:52:07] Speaker 02:
I'm sorry.

[00:52:07] Speaker 02:
Let me just be clear.

[00:52:08] Speaker 00:
For the preliminary, you said it's... For the preliminary determination, yes.

[00:52:12] Speaker 02:
And so starting July and the preliminary determination was November.

[00:52:19] Speaker 02:
So that was way beyond the 65 days.

[00:52:21] Speaker 00:
That was the full extension to the 130 days, yes.

[00:52:25] Speaker 05:
So the statute requires 65, but they can give themselves an extension up to 130 days.

[00:52:32] Speaker 00:
Yeah, exactly.

[00:52:35] Speaker 00:
Well, the statute sets the timeline for the whole investigation.

[00:52:38] Speaker 00:
The regulations specify what the prelim is going to be.

[00:52:41] Speaker 02:
But wait, is the 140 days up until the preliminary or up until the final?

[00:52:45] Speaker 00:
The 130 days is the extended preliminary determination.

[00:52:49] Speaker 00:
And then the final determination issues after that.

[00:52:52] Speaker 02:
Can you give me a site?

[00:52:53] Speaker 02:
Because I'm really not understanding this.

[00:52:55] Speaker 02:
So can somebody provide me a site for where this is so I can look at the dates myself?

[00:53:00] Speaker 00:
Unfortunately, I don't know that off the top of my head, but perhaps the commerce lawyer can pass that over to me.

[00:53:04] Speaker 00:
Okay, so I just wanted to get that out of the way, and then I wanted to dive into the Oman Fasteners case.

[00:53:11] Speaker 00:
I'm very familiar with that because I was involved in that case as well, and while the court didn't come out the way that we had hoped, I do understand the court's concerns, which are not present in this case.

[00:53:23] Speaker 00:
First of all, Judge Gross... Not present in this case?

[00:53:26] Speaker 07:
That's because there's a big difference between 2 hours and 15 minutes?

[00:53:31] Speaker 00:
Well, the trade court in Oman Fasteners explicitly distinguished that case from this one because on the grounds that TKT's counsel here failed to complete the substantive filing by the 8.30am deadline.

[00:53:44] Speaker 00:
Whereas in Oman Fasteners, they would have fallen within the 8.30am deadline.

[00:53:47] Speaker 07:
Whereas in Oman Fasteners, they didn't even ask for an extension.

[00:53:50] Speaker 00:
Yeah, but if they had, they would have gotten the 8.30am.

[00:53:51] Speaker 07:
Why isn't that a factor which favors

[00:53:55] Speaker 07:
the importer here that they actually asked for an extension, unlike the one Fasteners where they didn't.

[00:54:01] Speaker 00:
The one factor that's distinguishing here is that... No, no, no, answer my question.

[00:54:06] Speaker 00:
Yeah, okay.

[00:54:06] Speaker 00:
So the

[00:54:10] Speaker 00:
Commerce explicitly warned TKT that any extension had to actually be granted by commerce and writing.

[00:54:20] Speaker 07:
They didn't ask for an extension in OMOT.

[00:54:23] Speaker 07:
Why isn't this a more favorable case to the importer?

[00:54:26] Speaker 07:
Because they did ask for an extension.

[00:54:29] Speaker 00:
Because they did ask for an extension, but they did not ask for it in a time for commerce to consider it and commerce had given them notice that if the commerce did not explicitly granted in writing, then then no extension would be given.

[00:54:41] Speaker 00:
So they needed to give commerce some time to decide this.

[00:54:44] Speaker 07:
So it's not a favorable factor that they actually asked for an extension, whereas no one they didn't.

[00:54:49] Speaker 00:
Right.

[00:54:50] Speaker 00:
Well, yeah, they, okay, they asked, but they did not ask in the way that, you know, that they were instructed to do so.

[00:54:56] Speaker 07:
And they had both... Wait, wait, what are you talking about?

[00:55:00] Speaker 07:
They asked for an extension consistent with the regulations, right?

[00:55:04] Speaker 00:
Yeah.

[00:55:05] Speaker 00:
So the questionnaire and the final rule both say that parties should not assume that an extension will be granted if a last minute extension will be granted if commerce doesn't have a chance to consider it.

[00:55:18] Speaker 07:
I don't think you're answering my question, but go ahead.

[00:55:20] Speaker 01:
And how long did it take Commerce to reject the extension request in this case?

[00:55:26] Speaker 00:
It was in their subsequent letters where they rejected the untimely filing.

[00:55:32] Speaker 00:
Yeah, so that doesn't answer.

[00:55:36] Speaker 02:
My question was how long did it take Commerce to reject the extension request in this case?

[00:55:42] Speaker 00:
It was a few days later.

[00:55:44] Speaker 02:
Two weeks later, wasn't it?

[00:55:47] Speaker 02:
I thought it was two weeks later.

[00:55:49] Speaker 02:
September 17th to October 1st.

[00:55:52] Speaker 00:
Am I wrong about that?

[00:55:53] Speaker 00:
That's correct.

[00:55:59] Speaker 00:
The point is, council knew he was cutting it close.

[00:56:01] Speaker 07:
And in fact, all three of the- He says that best practices suggested you start downloading at a particular time.

[00:56:10] Speaker 07:
I forget whether it was 10 or whatever it is.

[00:56:14] Speaker 07:
Did they comply with that best practice?

[00:56:20] Speaker 00:
I guess they started trying to file before- Was the answer yes?

[00:56:27] Speaker 00:
They started trying to file the 404, yes, but they also then apparently stopped after reaching one single error and getting a bounce back message from Access telling them how to fix it, providing an exact hyperlink to what they needed to do to fix it.

[00:56:42] Speaker 00:
Here are all three factors for a particularly strong need to deter an appliance based on a particularly serious failure to cooperate that I mentioned in Oman Fasteners are met.

[00:56:50] Speaker 06:
A particular serious failure to cooperate?

[00:56:53] Speaker 06:
This is a particular serious failure to cooperate?

[00:56:56] Speaker 00:
Yes.

[00:56:57] Speaker 00:
Here we have intent.

[00:56:58] Speaker 00:
The council knew he was cutting it close.

[00:57:00] Speaker 00:
He knew he didn't get the information.

[00:57:01] Speaker 07:
Intent to go past the deadline?

[00:57:03] Speaker 07:
What's the intent?

[00:57:05] Speaker 00:
He knew that he was cutting it close.

[00:57:07] Speaker 00:
He had an opportunity to file earlier in the day for commerce to submit it.

[00:57:11] Speaker 00:
He had an opportunity to reach out to commerce officials.

[00:57:14] Speaker 00:
What's the intent?

[00:57:17] Speaker 00:
The fact that he waited until the last minute.

[00:57:19] Speaker 07:
There was no intent to go past the deadline, right?

[00:57:20] Speaker 00:
Yeah, the fact that he waited until the last minute.

[00:57:22] Speaker 07:
There was no intent to go past the deadline, right?

[00:57:25] Speaker 00:
I can't say that for sure, but even then, assuming the fact that there was missing information, even assuming the original

[00:57:38] Speaker 00:
You know, error there was inadvertent.

[00:57:40] Speaker 00:
After we pointed it out, their failure to be forthcoming with it was intentional.

[00:57:45] Speaker 00:
And that is not cooperation to the best of the ability.

[00:57:48] Speaker 00:
It seems to me that a correspondent understands that they're missing key information that it would be best cooperation to provide.

[00:57:54] Speaker 07:
Congress did not rely on the incompleteness, right?

[00:57:58] Speaker 00:
It is a little frustrating the way that the issues and decision memorandum boards when they address the incompleteness argument.

[00:58:07] Speaker 00:
And it's a little bit hard to tell for sure, but it seems like it's another factor, but not one that was dispositive in their analysis.

[00:58:16] Speaker 02:
Well, they didn't recite it in the response, right?

[00:58:19] Speaker 02:
They didn't refer to it.

[00:58:21] Speaker 02:
Appendix 209 or 210.

[00:58:23] Speaker 02:
I mean, I don't think there's a dispute that Commerce explicitly declined to rely on the alleged defect as a reason for rejecting the response.

[00:58:37] Speaker 07:
If you look at 2.09 of the records, as commerce is continuing to base its determination to reject the initial questionnaire responses untimely based on the lateness of submission rather than the content of the PPI version of the response.

[00:58:53] Speaker 00:
Okay.

[00:58:53] Speaker 00:
Well, that is, you know, the incompleteness of the argument is one that we consistently made, and I think it should inform the court's analysis.

[00:59:00] Speaker 08:
And you didn't rely on it.

[00:59:03] Speaker 00:
Well, then, you know, if you feel a remand is necessary just for commerce to go back and explain that, then that's certainly the case.

[00:59:10] Speaker 00:
But, you know, the question had been asked repeatedly, if you accept a submission, what does that get you?

[00:59:16] Speaker 00:
It gets you a submission that's incomplete and missing very key information about that's necessary to reach a subsidy analysis.

[00:59:24] Speaker 00:
And in absence of that information, the only information, the only rate that's out there is that 20% rate, which not only was- Can I ask you about that?

[00:59:33] Speaker 05:
I understand the 20%, and I understand there's all these categories.

[00:59:37] Speaker 05:
How does it just work that you multiply that 20% times eight different kind of, I guess, taxes or things?

[00:59:45] Speaker 05:
It seems kind of odd.

[00:59:47] Speaker 05:
It seems duplicative.

[00:59:48] Speaker 00:
Yeah, that's actually a great question.

[00:59:50] Speaker 00:
There's another important distinction between Oman fasteners in this case that's relevant to that.

[00:59:58] Speaker 00:
So Oman fasteners was an anti-dumping duty case.

[01:00:05] Speaker 00:
And in anti-dumping duty cases, you calculate just one weighted average dumping margin based on all the data that's on the record.

[01:00:12] Speaker 00:
In a countervailing duty case, it's a program-specific analysis.

[01:00:16] Speaker 00:
You're not supposed to look at the aggregate rate, and that's in the POSCO case.

[01:00:19] Speaker 00:
And then the program-specific analysis is also reiterated in the statute.

[01:00:23] Speaker 05:
Can I just cut to the chase?

[01:00:24] Speaker 05:
You're taking a long time to answer.

[01:00:26] Speaker 05:
Are these eight categories, eight separate types of taxes that they would have been required to pay, and that there's a possible waiver of those taxes on all those categories, and that's why you multiply by eight?

[01:00:41] Speaker 00:
There are eight different subsidy programs.

[01:00:43] Speaker 00:
Not all of them are tax programs.

[01:00:45] Speaker 00:
One of them is the corporate income tax program, and that's they assumed the adverse inference that it was 20%.

[01:00:51] Speaker 05:
So every one of those is a potential subsidy?

[01:00:53] Speaker 00:
Every one of those is a potentially different subsidy, yes.

[01:00:55] Speaker 05:
And every one of the potential subsidy is 20, and that's what you get.

[01:00:59] Speaker 05:
Or the best information you have for what it could be is 20.

[01:01:02] Speaker 05:
So you multiply by 8.

[01:01:03] Speaker 00:
The only number was the 20 number for the income tax, and that's why it multiplied.

[01:01:08] Speaker 05:
Some of the other programs that aren't income tax may be

[01:01:12] Speaker 05:
in different ways, but we don't know because there's nothing on the record.

[01:01:16] Speaker 07:
Exactly.

[01:01:16] Speaker 07:
What they argue is that the 20% doesn't take account of the cost.

[01:01:21] Speaker 07:
So if they were subject to the income tax, they'd be able to deduct their costs and they would be paying a flat 20% amount on revenue, right?

[01:01:35] Speaker 00:
It's commerce standards practice to do this, but basically... No, no, I'm trying to answer my... You're supposed to answer questions.

[01:01:40] Speaker 07:
There's no point in your being up there if you don't answer questions.

[01:01:43] Speaker 00:
Yeah.

[01:01:44] Speaker 07:
I mean, basically, yeah, the... That's what their contention is, that the 20% rate allows for deduction of expenses and that the commerce didn't deduct any expenses in assuming that they got a 20% benefit, right?

[01:02:00] Speaker 00:
So the argument you're saying that the 20% income tax rate would be a 20% on the revenue and not accounting for taxes, that's your question.

[01:02:10] Speaker 07:
On net revenue, 20% on net revenue, but the commerce calculated as though there were no expenses.

[01:02:16] Speaker 07:
They calculated on gross revenue rather than net revenue, right?

[01:02:21] Speaker 00:
Right, but yeah, the problem is we don't have any other information about what the costs and all of that would be.

[01:02:27] Speaker 07:
Pretty hard to be in a business without expenses.

[01:02:32] Speaker 02:
Your way beyond your time, do you have the citation yet on the time, Lunas?

[01:02:38] Speaker 00:
All right.

[01:02:39] Speaker 00:
So it is...

[01:02:43] Speaker 00:
The tariff act of section 703B1 is a 65-day.

[01:02:53] Speaker 00:
Section 703C1 can postpone the preliminaries.

[01:02:56] Speaker 02:
I'm sorry, you're going too fast.

[01:02:58] Speaker 02:
I got the first.

[01:02:58] Speaker 02:
What's the second?

[01:02:59] Speaker 00:
703C1 can postpone the preliminary determination no later than 130 days after initiation.

[01:03:11] Speaker 08:
Okay.

[01:03:11] Speaker 00:
And then the final is seventy-five days after the prelim.

[01:03:16] Speaker 00:
They're aligned with the anti-numping determination.

[01:03:21] Speaker 01:
Is that it?

[01:03:26] Speaker 07:
Thank you.

[01:03:27] Speaker 07:
All right.

[01:03:27] Speaker 07:
I think we're out of time.

[01:03:28] Speaker 07:
Thank you.

[01:03:30] Speaker 07:
Thank you.

[01:03:31] Speaker 07:
Mr. Kernel, you have two minutes.

[01:03:40] Speaker 03:
Actually, in listening, I think there's nothing further for me in rebuttal.

[01:03:45] Speaker 03:
I just start going through our brief again, and I don't think you want that.

[01:03:48] Speaker 03:
So no rebuttal.

[01:03:51] Speaker 06:
All right.

[01:03:52] Speaker 07:
Thank you.

[01:03:52] Speaker 07:
Thank you, counsel.

[01:03:53] Speaker 07:
The case is submitted.