[00:00:06] Speaker 03:
Good morning.

[00:00:06] Speaker 03:
We have three cases set for oral argument today.

[00:00:11] Speaker 03:
Two of them have been consolidated for oral argument purposes.

[00:00:16] Speaker 03:
And the first case that we're going to hear is 14-15-14 and 14-16-47, Adhart Shrimp Trade Action Company versus the United States.

[00:00:30] Speaker 03:
We proceed.

[00:00:33] Speaker 03:
I understand you want to split your time 15 minutes and then five minutes for your rebuttal.

[00:00:39] Speaker 07:
That's correct, sir.

[00:00:39] Speaker 03:
So we've given all the parties a total of 20 minutes time due to the consolidation.

[00:00:45] Speaker 03:
Okay, you may proceed.

[00:00:46] Speaker 03:
Okay, thank you.

[00:00:47] Speaker 03:
Thank you, good morning.

[00:00:48] Speaker 07:
In these cases, Commerce has offered two separate arguments to justify its application of total adverse facts available to Hilltop in disregard of all information.

[00:00:58] Speaker 04:
Mr. Perot, I have a bunch of fact questions for you.

[00:01:01] Speaker 04:
I see that on page seven of the first remand results for the fifth review, commerce says that import data shows that between May 2004 and July 2005, Ocean Duke imported over 15 million pounds of shrimp from Cambodia.

[00:01:21] Speaker 04:
And that included significant quantities from Ocean King.

[00:01:26] Speaker 04:
But the official government production

[00:01:29] Speaker 04:
Data from Cambodia indicates that they produced less than 400,000 pounds of shrimp in the entire country during 2004 and 2005.

[00:01:39] Speaker 04:
How do you explain that discrepancy in those numbers?

[00:01:43] Speaker 07:
Well, Your Honor, to begin with, there is only a tenuous relationship.

[00:01:49] Speaker 07:
There could only be a tenuous relationship with those figures and Ocean King, because as we've also noted in briefs,

[00:01:58] Speaker 07:
is undisputed that Ocean King itself, I think, was only established in May of 2005.

[00:02:05] Speaker 07:
Yes, the government then backs off that statement regarding that excessive quantity.

[00:02:11] Speaker 07:
It says nonetheless, the amount remaining still is in excess.

[00:02:16] Speaker 07:
But within this case, it is difficult perhaps to come to an ultimate conclusion about what the discrepancy there is.

[00:02:28] Speaker 07:
Uh, but our view is what we are dealing with is a historical event you're dealing with.

[00:02:34] Speaker 03:
I almost concluded that the record evidence perhaps suggested a, uh, transshipment issue between China and Cambodia.

[00:02:42] Speaker 07:
Correct, your honor.

[00:02:43] Speaker 07:
And the allegation, the allegation that they raised was transshipment in, in POR one and POR two.

[00:02:50] Speaker 07:
And as the court well knows what we have before us today.

[00:02:53] Speaker 07:
is an appeal regarding their determinations in POR 4 and POR 5.

[00:02:59] Speaker 07:
Now, it is undisputed on the record that during PORs 4 and POR 5, there were absolutely no shipments of shrimp from Cambodia to the United States.

[00:03:10] Speaker 07:
If there are no shipments, it is self-evident that there could be no concerns of transshipment.

[00:03:16] Speaker 07:
Therefore, whatever concerns they may have had historically regarding Ocean King simply could not impact

[00:03:23] Speaker 07:
these two PORs, which are what is at issue in this appeal.

[00:03:28] Speaker 07:
And that is one of our primary concerns, is that the department appears to be far more concerned with historical events as opposed to the actual information and data that is necessary to calculate an accurate dumping margin in both POR five.

[00:03:45] Speaker 03:
Isn't the link between those prior reviews and the reviews that we're looking at now, the affiliation between

[00:03:53] Speaker 03:
Hilltop and Ocean King through Mr. Tu.

[00:03:57] Speaker 07:
Well, yes, Your Honor.

[00:04:00] Speaker 07:
And again, what we're faced here with is information that was originally placed on the record in POR 6, which then on remand, both POR 4 and 5 was placed on the record in these cases.

[00:04:12] Speaker 07:
Well, are you defending the statements made by, is it Mr. Tu or Mr. Tu?

[00:04:16] Speaker 07:
Mr. Tu.

[00:04:17] Speaker 04:
Okay.

[00:04:18] Speaker 04:
Are you defending the statements made by Mr. Tu in which he says,

[00:04:22] Speaker 04:
no ownership interest, don't know anything about them?

[00:04:26] Speaker 07:
Your Honor, with respect to POR 4 and POR 5, we completely agree that there is an omission on the record with respect to the affiliation to Ocean King.

[00:04:39] Speaker 07:
So the question.

[00:04:40] Speaker 04:
Well, but it's not an omission.

[00:04:42] Speaker 04:
It's a direct factual misrepresentation.

[00:04:47] Speaker 04:
It is.

[00:04:48] Speaker 04:
It was.

[00:04:49] Speaker 07:
Your Honor, I believe that there is not sufficient information on the record to inclusively state that this was intentional.

[00:04:57] Speaker 07:
It was a question regarding affiliation.

[00:04:59] Speaker 03:
But when you file a response, you have to file a certification as to its accuracy.

[00:05:02] Speaker 07:
Yes, that's correct, Your Honor.

[00:05:04] Speaker 03:
So when Mr. Toe followed the responses, or when Hilltop followed the responses, there's a certification as to the accuracy.

[00:05:12] Speaker 03:
So it's inaccurate.

[00:05:14] Speaker 03:
Or if there's any material omissions,

[00:05:17] Speaker 03:
Then isn't that a direct misrepresentation?

[00:05:20] Speaker 07:
It is a direct misrepresentation of that issue with respect to the affiliation with Ocean King.

[00:05:27] Speaker 07:
Including the fact that he owned a portion.

[00:05:30] Speaker 07:
Yes, that he was a shareholder.

[00:05:32] Speaker 07:
Absolutely.

[00:05:33] Speaker 07:
That's correct.

[00:05:34] Speaker 07:
The issue, we believe.

[00:05:35] Speaker 02:
And that's where the credibility comes unraveled.

[00:05:39] Speaker 02:
Well, Your Honor.

[00:05:40] Speaker 02:
And your problem is that there is utter unraveling, right?

[00:05:44] Speaker 02:
Once the decision was, once there is a falsification as to assume material issue, then commerce, they wouldn't believe anything else you said.

[00:05:55] Speaker 07:
That is the theory that commerce would have you accept.

[00:06:00] Speaker 02:
What's wrong with that theory?

[00:06:02] Speaker 07:
The problem with that theory, Your Honor, is that the statute itself clearly discusses when there's missing information and adverse inference may be applied to that information which is missing.

[00:06:13] Speaker 07:
And this court in Jejongdoonan confirmed that that is in fact the point of the statute.

[00:06:19] Speaker 04:
But that's not missing information.

[00:06:21] Speaker 04:
It's an affirmative false misrepresentation.

[00:06:24] Speaker 07:
Correct, Your Honor, with respect to one discrete element of the record.

[00:06:28] Speaker 07:
Under the theory that commerce proposes, any time in which there is an omission which they claim... Are you familiar with the evidentiary doctrine going back to the medieval common law?

[00:06:40] Speaker 04:
uh, falseness in Eunice, falseness in Omnia.

[00:06:44] Speaker 04:
If you lie about one thing, it can be presumed that you lie about everything.

[00:06:49] Speaker 07:
Your honor, as, as a matter of reason, that, that certainly can be persuasive.

[00:06:55] Speaker 07:
What we are dealing with here, however, is an anti-dumping proceeding where commerce is required to have record evidence that supports its findings.

[00:07:06] Speaker 07:
To say that it has found a misrepresentation or

[00:07:10] Speaker 07:
If they want to allege, say, the respondent was untruthful about this issue, a third country affiliate, and then to use this alone as leverage to say, notwithstanding the fact that piece of information has no impact on our dumping margin calculations within these reviews, we can disregard everything.

[00:07:29] Speaker 04:
For example, you make the argument that because this is a Hong Kong-based entity,

[00:07:37] Speaker 04:
a different standard of review applies, a different interpretation.

[00:07:45] Speaker 04:
But couldn't those Hong Kong documents simply be a total forgery?

[00:07:52] Speaker 04:
Absolutely not.

[00:07:53] Speaker 04:
No, no, could they be?

[00:07:55] Speaker 07:
Could they be?

[00:07:55] Speaker 07:
They could not be.

[00:07:57] Speaker 07:
They could not be.

[00:07:57] Speaker 07:
Your honor, those are independent government documents issued by

[00:08:02] Speaker 07:
Hong Kong by the government.

[00:08:03] Speaker 07:
The evidence that we have on the record, the Hilltop is an exporter located in Hong Kong, is not merely an assertion by Mr. Toh or any other employee of the company.

[00:08:17] Speaker 07:
It is not some piece of information being generated from their computer records.

[00:08:21] Speaker 07:
It is standalone objective documents.

[00:08:24] Speaker 07:
Moreover, as we've shown, the record in this case also includes a copy of the POR1 verification

[00:08:32] Speaker 07:
During POR1, Commerce conducted an on-site verification at Hilltop's offices in Hong Kong, in which, in part, they reviewed these independent business documents, the business license and the business registration.

[00:08:48] Speaker 02:
But I mean, so you could have a Hong Kong entity.

[00:08:52] Speaker 02:
No question about it.

[00:08:53] Speaker 02:
But does that mean, as a matter of law, it could never be controlled by the People's Republic?

[00:08:59] Speaker 07:
Yes, Your Honor.

[00:09:00] Speaker 02:
As a matter of fact?

[00:09:02] Speaker 02:
Excuse me, you have an entity, a corporation that's in Hong Kong, and you're telling me it's impossible for that organization to be controlled, as a matter of fact, by the Chinese, by the PRA.

[00:09:15] Speaker 07:
What we're saying, Your Honor, is that at the time of these reviews, and to my understanding, as we speak today, commerce is well established and explicit policy in non-market economy dumping cases

[00:09:27] Speaker 07:
is that if the exporter is located in a market economy location, which they treat Hong Kong as such, then it is exempt from the separate retest.

[00:09:38] Speaker 02:
In circumstances when we have no reason to doubt that you might, in fact, be controlled by PRAs.

[00:09:44] Speaker 07:
Your Honor, I would urge the Court to review carefully the cases that we have cited and the Federal Register notices.

[00:09:51] Speaker 03:
That's the problem you face, right?

[00:09:54] Speaker 03:
The story unravels for you.

[00:09:56] Speaker 03:
along the way, so does the law.

[00:10:00] Speaker 03:
If there's no reason to believe Hiltoff and their questionnaire responses were over a period of reviews, it's been shown that they have affirmatively deceived the Department of Commerce, what's to prevent the Department of Commerce questioning whether maybe there's deception and there is an affiliation with the Chinese company?

[00:10:21] Speaker 07:
what is to prevent them from doing it, Your Honor, is the fact that it is their established policy, not ours, which says if you are located in Hong Kong, you are exempt from the separate rate test.

[00:10:32] Speaker 02:
The test merely doesn't apply.

[00:10:34] Speaker 02:
Unless, there's a footnote.

[00:10:37] Speaker 02:
The footnote says unless you have done something that has caused us to lack any belief in what you say about anything.

[00:10:46] Speaker 02:
Books could be cooked.

[00:10:47] Speaker 02:
I mean, your previous de minimis

[00:10:50] Speaker 02:
margin could have been based on cookbooks, right?

[00:10:54] Speaker 02:
Hypothetically, right?

[00:10:56] Speaker 02:
Right?

[00:10:57] Speaker 07:
Right?

[00:10:57] Speaker 07:
Your Honor?

[00:10:58] Speaker 07:
Right?

[00:10:59] Speaker 07:
That would be a finding, and any finding that Congress makes.

[00:11:03] Speaker 02:
So when you say, I don't believe you.

[00:11:05] Speaker 02:
Like, for example, if I lost credibility in you because of one thing you said here in the morning, I'm not going to believe anything you said.

[00:11:12] Speaker 02:
Well, Your Honor.

[00:11:13] Speaker 02:
Is that what happens when you've lost your credibility?

[00:11:18] Speaker 07:
But in doing so,

[00:11:20] Speaker 07:
what the department is doing is it is now using its ability to apply an adverse inference as a punitive measure.

[00:11:27] Speaker 02:
Let me ask you.

[00:11:28] Speaker 02:
Should I come at this from a slightly different perspective?

[00:11:30] Speaker 02:
As a result of questioning from my colleagues, I think you have agreed that Hilltop not only made a misleading statement about its affiliations.

[00:11:42] Speaker 02:
You say that the commerce attached

[00:11:47] Speaker 02:
too much penalty to that misstatement.

[00:11:49] Speaker 02:
What, in your view, is the correct amount of penalty?

[00:11:52] Speaker 02:
What should Commerce have done once Commerce felt that it had lost faith in you?

[00:11:58] Speaker 07:
Well, Your Honor, pursuant to the statute, since it's well-settled, that the purpose of the dumping law is to be remedial and not punitive.

[00:12:06] Speaker 02:
What should have happened?

[00:12:08] Speaker 02:
The question, Your Honor.

[00:12:09] Speaker 02:
Taking into account the fact that Commerce has no faith in your client's statements about its affiliation.

[00:12:17] Speaker 07:
Then the question, Your Honor, is, what is the information that's missing, and what is the impact of that information on the dumping calculation that Commerce must make in PORs for POR 1?

[00:12:29] Speaker 02:
OK, well then, what happens if, as part of Commerce's belief that your client doesn't tell the truth, if they say, we no longer have any reason to believe the numbers you gave us that produced the de minimis rate?

[00:12:41] Speaker 07:
Number one, Your Honor, we would say that this is contrary to the plain intent of the statute

[00:12:47] Speaker 02:
If you're going to the record shows what would happen if commerce had written down on a piece of paper.

[00:12:54] Speaker 02:
And in addition to our loss of faith in you, we no longer have any faith in the numbers you gave us.

[00:13:03] Speaker 02:
They had done that.

[00:13:03] Speaker 07:
What would have been your response up here under under the law, your honor, in order, in order to reject that information, that's that's a finding.

[00:13:11] Speaker 07:
and any finding that Congress made.

[00:13:13] Speaker 02:
Still they made that finding based on the fact that we've lost faith in your ability to tell us the truth.

[00:13:20] Speaker 02:
And consequently, we're checking out all the numbers that you gave us that produced a de minimis number.

[00:13:26] Speaker 02:
What would be your legal argument?

[00:13:28] Speaker 07:
My legal argument, Your Honor, would be that there is no rational connection between a statement or a misstatement

[00:13:37] Speaker 07:
by an individual, Mr. Toe, with respect to his own affiliations or his other investments in third country companies.

[00:13:44] Speaker 07:
And that was the only misstatement he made.

[00:13:49] Speaker 07:
Your Honor, within POR4 and POR5, I'm not aware of what else it is that Commerce is alleging that would somehow undermine the reliability of all the information that it used in both POR and POR5.

[00:14:01] Speaker 04:
That's funny, because my recollection is that Mr. Toe signed

[00:14:04] Speaker 04:
an awful lot of things which turned out to be false, not just his ownership interest.

[00:14:10] Speaker 07:
Well, your honor, the government repeatedly states, yes, that he signed multiple certifications, but that does not mean that they are now alleging that there's other information within those submissions that it finds untruthful or that there's evidence demonstrating is incorrect.

[00:14:28] Speaker 07:
The case that we cited by analogy was butt weld pipe fitting from Taiwan.

[00:14:32] Speaker 07:
In that case, commerce

[00:14:34] Speaker 07:
issued multiple supplemental questionnaire to the respondents, and at verification identified four previously unreported affiliates.

[00:14:46] Speaker 07:
And at the end of the day, what they did is they applied an adverse inference only to one of those four, because they said this is the only company which is involved in any matter with the subject merchandise.

[00:14:58] Speaker 04:
Let me ask you another question.

[00:15:00] Speaker 04:
Hilltop had an opportunity to submit a sculptorate

[00:15:04] Speaker 04:
information that could have rehabilitated Ocean King's misrepresentation.

[00:15:08] Speaker 04:
But it didn't do that.

[00:15:09] Speaker 04:
Why not?

[00:15:10] Speaker 07:
I'm sorry, Your Honor.

[00:15:11] Speaker 07:
What point are we discussing?

[00:15:14] Speaker 04:
We're discussing specifically Shrimp Trade Committee's brief in 1514 at page 53, where they say, while Hilltop had an opportunity to submit exculpatory information that could have rehabilitated the Ocean King misrepresentation, it failed to do so

[00:15:32] Speaker 04:
And this is what bothers me, despite having sought and obtained an extension for the purpose of doing that.

[00:15:40] Speaker 07:
Your Honor, again, with respect to POR 4 and POR 5, we are acknowledging the fact that the record does not contain the information regarding the affiliation.

[00:15:50] Speaker 07:
In POR 6, when Commerce issued a supplemental questionnaire to Hilltop asking about its affiliation, I believe this is the eighth supplemental, we submitted in response to that 90 pages.

[00:16:02] Speaker 07:
worth of information, answering all questions that the department had asked us with respect to Ocean King.

[00:16:10] Speaker 07:
This may be the government's assertion.

[00:16:14] Speaker 07:
It's unclear to me exactly what additional exculpatory arguments were made.

[00:16:19] Speaker 04:
I don't know.

[00:16:19] Speaker 04:
You're the one who asked for it.

[00:16:23] Speaker 04:
I beg your pardon?

[00:16:23] Speaker 04:
You asked for an extension of time to submit exculpatory evidence, and then you didn't submit anything.

[00:16:30] Speaker 07:
As you know, in these cases, very often time may be limited.

[00:16:34] Speaker 07:
There may be other issues that you want to pursue.

[00:16:37] Speaker 07:
But at the end of the day, if you find nothing, there's certainly no purpose of making a submission.

[00:16:43] Speaker 07:
But I would again maintain that the critical questions are, what is the missing information?

[00:16:49] Speaker 07:
And what is the impact of that information?

[00:16:52] Speaker 03:
You're into your rebuttal time.

[00:16:54] Speaker 03:
But I'm going to give you some additional time.

[00:16:56] Speaker 03:
But I do want you to take a minute

[00:16:59] Speaker 03:
to the corroboration issue.

[00:17:01] Speaker 07:
Okay, thank you, Your Honor.

[00:17:02] Speaker 07:
The concerns we have with both the AFA rate and the corroboration that Commerce is applying here is that they continue to use information that is five or six years earlier than the reviews at issue here and is doing so in disregard of much more current information that will be far more probative of the current commercial reality.

[00:17:23] Speaker 07:
The SAA specifically states that one of the concerns

[00:17:27] Speaker 07:
that Congress had with the use of secondary information in these cases is that if the information is coming from an earlier time period, it may not be reliable with respect to the current review.

[00:17:39] Speaker 07:
That is clearly a grave concern that we have in this case.

[00:17:45] Speaker 07:
Commerce is continuing to use a 112% AFA rate that was obtained from the original petition in 2003.

[00:17:52] Speaker 07:
And their effort to corroborate that is to take

[00:17:56] Speaker 07:
a minute percentage of sales data from the original 2003 investigation.

[00:18:02] Speaker 03:
And in doing so, they are disregarding the fact that during POR... What does that data represent in terms of volume, though?

[00:18:10] Speaker 03:
I mean, it's a significant amount of volume, correct?

[00:18:13] Speaker 07:
They claim it is a significant amount of volume in relation to other exporters.

[00:18:18] Speaker 07:
I can't speak directly to it because this is proprietary information.

[00:18:22] Speaker 07:
It is certainly a minute percentage

[00:18:24] Speaker 07:
of the data for that one respondent.

[00:18:26] Speaker 03:
But Your Honor, I'll restore you back to your five minutes time, OK?

[00:18:31] Speaker 03:
One more.

[00:18:32] Speaker 03:
You had a question?

[00:18:33] Speaker 03:
Yeah, one more.

[00:18:34] Speaker 04:
And that is, in footnote three on page eight of your brief in 1514, you discuss the sentencing report.

[00:18:45] Speaker 04:
Any questions?

[00:18:45] Speaker 04:
Yes.

[00:18:45] Speaker 04:
And you say it was merely a series of unproven allegations advanced by the government

[00:18:51] Speaker 04:
in an attempt to seek a more punitive sentence against Mr. Lin for the inaccurate labeling misdemeanor offenses.

[00:18:58] Speaker 04:
And I want to ask how you can say that, given the documentation from the investigation, and particularly those emails back and forth between Mr. Lin and Mr. Toe.

[00:19:09] Speaker 07:
Well, Your Honor, as has been discussed on the record, this was a five-year investigation.

[00:19:15] Speaker 07:
There was a wealth of information.

[00:19:17] Speaker 07:
What is now being focused upon is a handful of emails

[00:19:21] Speaker 07:
not the entire record.

[00:19:23] Speaker 07:
And our point there was that that brief during the sentencing was not a conclusion of the court.

[00:19:30] Speaker 07:
In fact, it is notable that notwithstanding the fact that the government in conjunction with U.S.

[00:19:37] Speaker 07:
Customs conducted this five-year criminal investigation, at the end, they declined to bring any trans-shipment charges against Mr. Lin or Mr. Toh or any of the other individuals that were involved in it.

[00:19:50] Speaker 07:
Instead, what they attempted to do is having reached a deal whereby the only charge that was leveled against Mr. Toe was the mislabeling of fish.

[00:20:01] Speaker 07:
They attempted to use this information in an effort to persuade the judge to give Mr. Lin a much stronger and harsher sentence.

[00:20:10] Speaker 07:
And in response to that, the judge himself was asking a very obvious question.

[00:20:15] Speaker 07:
If you felt that this was compelling evidence, given the record as a whole, why did you not bring these charges in the first place?

[00:20:21] Speaker 07:
And he found the entire effort, as he said, pretty thin.

[00:20:25] Speaker 02:
Can I ask you a question?

[00:20:27] Speaker 02:
Towards the end of both of your briefs, you refer to a topic that I want to explore a little bit.

[00:20:33] Speaker 02:
Both Commerce and the Corps of National Trade criticized your client for not having provided

[00:20:39] Speaker 02:
Any additional information that could have been useful to support your case, which is that the 112 rate wasn't sufficiently corroborated, you contend that your client made a request to provide additional market data from other respondents.

[00:20:55] Speaker 02:
I'm reading from page 71.

[00:20:57] Speaker 02:
Correct.

[00:20:59] Speaker 02:
Tell us what that was.

[00:21:01] Speaker 02:
Is there some data out here that is pertinent?

[00:21:05] Speaker 02:
This case was once remanded to Commerce to relook the corroboration issue, as you know.

[00:21:12] Speaker 02:
Yes.

[00:21:12] Speaker 02:
And it came back and the best they had was Red Garden.

[00:21:15] Speaker 02:
You say there's some additional data out there.

[00:21:17] Speaker 02:
What is it?

[00:21:18] Speaker 07:
Well, absolutely, Your Honor.

[00:21:19] Speaker 02:
What is it?

[00:21:20] Speaker 07:
What is that data?

[00:21:21] Speaker 07:
In POR 4, one of the time periods, which is contemporaneous, one of the reviews under appeal here, there were two mandatory respondents.

[00:21:29] Speaker 07:
There was Hilltop and another company called Regal.

[00:21:32] Speaker 07:
Commerce calculated a full margin result for Regal.

[00:21:37] Speaker 07:
The identical methodology that they used in an effort to corroborate this 112% rate using this 2003 data, they could have used using the contemporaneous information.

[00:21:52] Speaker 07:
in PLR 4 to determine whether or not that 112% rate still remains commercially reasonable.

[00:21:59] Speaker 02:
Do we have a copy of your request?

[00:22:01] Speaker 02:
What you wrote there in your brief suggested to me that Hilltop gave a document, a request, to Commerce saying, here's what we want to supply.

[00:22:11] Speaker 02:
Is that in the record?

[00:22:14] Speaker 02:
I can't find your request.

[00:22:18] Speaker 07:
If we file a request, Your Honor, I would believe it is on the record.

[00:22:22] Speaker 02:
Somewhere.

[00:22:23] Speaker 02:
I mean, it seemed to me that this was probably your best argument, was in a case that had been remanded once to Commerce, saying your attempt to corroborate is lousy.

[00:22:32] Speaker 02:
They come back with Hilltop, which is immediately, pardon me, come back with Red Garden, which goes back to an earlier time period.

[00:22:40] Speaker 02:
You say we've got something in a fresher time period.

[00:22:44] Speaker 07:
But Your Honor, that's a matter of public record.

[00:22:46] Speaker 07:
The POR 4 final results clearly show there was a second mandatory response.

[00:22:51] Speaker 02:
You're telling me that here today in oral argument.

[00:22:54] Speaker 02:
All I have is a document in your brief saying Hilltop made a request for this information.

[00:23:03] Speaker 07:
I believe, Your Honor, that we have raised the fact

[00:23:05] Speaker 07:
that not only did commerce use outdated information in its efforts to corroborate the 112% rate, but that in doing so, it declined to use far more current, if not contemporaneous data that it had.

[00:23:19] Speaker 03:
Can you cite to the record?

[00:23:22] Speaker 03:
You don't have to do it right now.

[00:23:23] Speaker 03:
You can do it later or by letter.

[00:23:24] Speaker 03:
Cite to the record, or give us a copy of the document that Judge Cleveringer is talking about.

[00:23:32] Speaker 03:
I'm going to restore your five minutes time, but I think that that's, we've gone far enough.

[00:23:37] Speaker 01:
Okay.

[00:23:37] Speaker 03:
Okay.

[00:23:38] Speaker 03:
Okay.

[00:23:38] Speaker 03:
All right.

[00:23:38] Speaker 03:
Thank you.

[00:23:40] Speaker 01:
Thank you.

[00:23:43] Speaker 03:
Mr. Khan.

[00:23:44] Speaker 03:
Now I understand you're going to divide your time between five and 15 minutes between both of you.

[00:23:49] Speaker 05:
And that's right.

[00:23:50] Speaker 05:
I'm Mr. Kerland on behalf of the United States.

[00:23:52] Speaker 05:
Okay.

[00:23:52] Speaker 05:
I'm taking 15 minutes and Mr. Khan on behalf of ad hoc strength is taking five minutes.

[00:24:01] Speaker 05:
Good morning, Your Honors, and may it please the Court.

[00:24:03] Speaker 05:
I want to pick up on the issue on which opposing counsel left off, which is the corroboration issue.

[00:24:11] Speaker 05:
Put simply, all of the different corroboration arguments that plaintiffs' counsel or appellants' counsel is making here are contradicted by this Court's recent decision in Dongtai Peak, Honey.

[00:24:23] Speaker 05:
And to the extent there is anything left over by the slightly less recent but still fairly recent decision in KYD.

[00:24:31] Speaker 05:
In particular, the Dongtai Peak decision involved, as in this case, a commerce relying on an AFA rate that stemmed from a review four years earlier in Dongtai Peak.

[00:24:42] Speaker 05:
It was the sixth review applied in the tenth review that had been applied to the China-wide entity in the interim.

[00:24:49] Speaker 05:
In that case, actually, it was only applied to the China-wide entity in the first couple of reviews after the sixth review, like the seventh and eighth, and again, was being applied then in the tenth.

[00:24:58] Speaker 05:
Here, the rate has been applied to the China-wide entity

[00:25:01] Speaker 05:
in every review, in every segment of this proceeding, up to and including the fourth and fifth reviews that are at issue here.

[00:25:09] Speaker 05:
And this court upheld that determination.

[00:25:14] Speaker 05:
It's really on all fours with the situation here and Hilltop's various arguments.

[00:25:21] Speaker 05:
To the extent Hilltop is arguing you can't use

[00:25:25] Speaker 05:
Data that is from a previous review, that's not the case.

[00:25:31] Speaker 05:
Courts have routinely upheld Congress's use of that kind of data.

[00:25:34] Speaker 05:
The Dong Tai Peak decision is only the most recent example of that.

[00:25:37] Speaker 05:
To the extent Hilltop is arguing that you can't corroborate secondary information with secondary information, that's anathema.

[00:25:44] Speaker 05:
That happens all the time in trade proceedings, and it's certainly what happens in Dong Tai Peak.

[00:25:53] Speaker 05:
to the extent that Hilltop is arguing that.

[00:25:55] Speaker 02:
The law says that this AFA rate has to be a reasonably accurate estimate of the respondent's actual rate.

[00:26:04] Speaker 02:
Now, we know what the respondent's actual rate here is, right?

[00:26:08] Speaker 02:
The minimums.

[00:26:10] Speaker 05:
No, we don't know what the respondent's actual rate here is.

[00:26:12] Speaker 02:
Let's calculate it.

[00:26:13] Speaker 05:
Well, Your Honor, it was calculated on data that commerce is determined was totally unreliable.

[00:26:20] Speaker 02:
Where in the record is there a determination by commerce that the data that produced the unanimous rate can't be relied on?

[00:26:31] Speaker 02:
Well, Your Honor, that commerce... Give me a site, a page site to a document that's signed by a commerce official that says what you just said.

[00:26:39] Speaker 05:
Sure, I can follow up with further specific sites, but in the record in the fourth review remand determination, the particular section I'm thinking of is at 4048 of the POR4 record to 4058.

[00:26:59] Speaker 05:
That's what to say.

[00:27:01] Speaker 02:
What Commerce said is... If I was unaware, I mean, I've had a colloquy with your adversary here earlier about whether or not Commerce could reject

[00:27:09] Speaker 02:
all of that previous data on the grounds that it's unbelievable.

[00:27:12] Speaker 02:
But I never saw that they did it.

[00:27:14] Speaker 05:
I remember that colloquy, Your Honor.

[00:27:16] Speaker 02:
And that's why I said what you said.

[00:27:18] Speaker 05:
Well, that's correct.

[00:27:20] Speaker 05:
Because commerce did here determine.

[00:27:25] Speaker 05:
I think there are a couple of nested determinations here.

[00:27:27] Speaker 02:
Come back.

[00:27:27] Speaker 02:
Come back.

[00:27:28] Speaker 02:
Let's assume, for purposes of argument, that the commerce never actually threw out the data that they had used to compose a de minimis rate, OK?

[00:27:39] Speaker 02:
Let's then go back to Dicecchio as followed up in Galen.

[00:27:45] Speaker 02:
This AFA rate has to be a reasonably accurate estimate of the actual rate in order to be lawful.

[00:27:54] Speaker 02:
So on the hypothetical that I'm giving you, which I think is actually the fact, you have an actual determinant rate of de minimis, right?

[00:28:04] Speaker 02:
What's the reason?

[00:28:05] Speaker 02:
How is the 112 a reasonably accurate estimate of that rate?

[00:28:11] Speaker 05:
Okay, Your Honor.

[00:28:12] Speaker 05:
I'm happy to work with hypothetical, but my understanding of the facts is that Commerz did determine... Can you answer that question?

[00:28:18] Speaker 05:
Sure.

[00:28:19] Speaker 02:
Even in Gallin and Dicecco... Why is 112 a reasonable accurate estimate of zero?

[00:28:27] Speaker 05:
Because if you had the rate isn't zero, because you have an uncooperative respondent and you're determining what the rate would be of the entire China wide entity.

[00:28:38] Speaker 05:
All the parties here agree that the operative rate to be corroborated is not Hilltop specific rate, but the rate of the China wide entity as a whole.

[00:28:50] Speaker 05:
Here, Congress looked and said, you know, we recently conducted a section 129 determination.

[00:28:55] Speaker 05:
in which we looked at the largest single exporter by volume in this proceeding and determined that there were a good chunk of that exporter's sales that were at a rate of 112%.

[00:29:09] Speaker 05:
At what point in time?

[00:29:13] Speaker 02:
What's the red garden?

[00:29:15] Speaker 02:
What's the date for purposes of not being stale or being fresh?

[00:29:21] Speaker 05:
That was during the investigation.

[00:29:23] Speaker 02:
2003.

[00:29:24] Speaker 02:
I'm sorry?

[00:29:24] Speaker 05:
2003 data.

[00:29:25] Speaker 05:
But it was 2003 data that was updated to reflect a difference in calculation methodologies between 2003 and 2013.

[00:29:33] Speaker 02:
But the actual data for the actual sales was 2003.

[00:29:38] Speaker 05:
The actual data was from 2003.

[00:29:39] Speaker 02:
OK, let's assume for purposes of argument that there is data available that is fresher than 2003 that's pertinent.

[00:29:48] Speaker 02:
OK?

[00:29:49] Speaker 02:
Can commerce ignore that data?

[00:29:52] Speaker 05:
Yes, it can.

[00:29:53] Speaker 02:
And for example, that's something... Before you say yes, it can, based on what authority?

[00:30:00] Speaker 02:
Well, KYD, for example, is an instance where... That's KYD on the other side of the table for the moment, okay?

[00:30:07] Speaker 02:
Okay.

[00:30:07] Speaker 02:
What authority does Commerce have to say we are not, we refuse to look at, we've got this nice 2003 data, red garden data, but we refuse to look at any more current data?

[00:30:20] Speaker 02:
Well... End of letter,

[00:30:23] Speaker 02:
period signed assistant secretary.

[00:30:26] Speaker 02:
What's the legal support for such a letter?

[00:30:30] Speaker 05:
Because at the end of the day, an AFA rate is supposed to be a rate.

[00:30:33] Speaker 02:
Don't tell me at the end of the day.

[00:30:34] Speaker 02:
Cite me a statute.

[00:30:35] Speaker 02:
Tell me what the legal authority is for Congress to ignore fresher pertinent data being offered, especially in a circumstance when you've been criticized by the Department for not offering fresh data, and also you've been criticized by the CIT for not doing it.

[00:30:52] Speaker 05:
Sure, 1677 E sub B explicitly authorizes commerce to rely on the petition among potential sources for adverse facts available rates.

[00:31:05] Speaker 05:
And this court has interpreted it.

[00:31:08] Speaker 02:
Let's assume you have a petition, petition very old.

[00:31:12] Speaker 02:
And you can rely on that data, but you have pressured data that is pertinent.

[00:31:18] Speaker 02:
I'm just asking what authority gives commerce the power to say,

[00:31:22] Speaker 02:
Take a walk.

[00:31:23] Speaker 02:
I don't care if you have more current relevant data.

[00:31:28] Speaker 05:
Well, the statute itself is ambiguous.

[00:31:30] Speaker 05:
It doesn't address this issue.

[00:31:32] Speaker 05:
So it's a matter of commerce's discretion, whether it's reasonable, which is why I keep going to legal.

[00:31:37] Speaker 02:
You weren't talking ambiguity earlier.

[00:31:42] Speaker 02:
Which section is ambiguous?

[00:31:44] Speaker 05:
Well, the statute doesn't address at all the question that your honor is raising, which is,

[00:31:50] Speaker 05:
whether if there's additional data from, for example, cooperative respondents, whether commerce has to rely on that data.

[00:31:57] Speaker 05:
But there have been a number of decisions.

[00:31:59] Speaker 03:
Isn't more recent data more reflective of current market realities?

[00:32:06] Speaker 05:
Not necessarily.

[00:32:06] Speaker 05:
And that data would be related to cooperating respondents who, by definition,

[00:32:12] Speaker 05:
are not similarly positioned.

[00:32:14] Speaker 05:
And this is what the trial court discussed at page 1293 of the opinion below.

[00:32:19] Speaker 03:
So you're arguing that commerce can just cherry pick the data it wants?

[00:32:23] Speaker 03:
No.

[00:32:24] Speaker 05:
Commerce can't cherry pick in the sense that here it did not do so because it relied on a volume that was fairly significant, a six figure volume of data.

[00:32:35] Speaker 03:
Your opponent says that commerce did cherry pick.

[00:32:41] Speaker 05:
They do, however, the trial court... How are you going to get out of that?

[00:32:46] Speaker 03:
What's your authority for using, let's say, more stale or older data when there's fresher data available from a more recent review?

[00:32:58] Speaker 05:
There is no statutory legal authority that requires commerce to use data simply because it was more recent, and there have been quite a number of decisions that have upheld commerce's reliance on data that is older, but is reflective of higher rates that are consistent with what a non-cooperative, for example, China identity would use.

[00:33:23] Speaker 04:
Isn't the core of your argument, really?

[00:33:25] Speaker 04:
what you guys always say before the CIT, apples and oranges, that is that the cooperative data is inherently different from the adverse data because one's dealing with a nationwide rate and the other's dealing with individuals who, as evidenced by their cooperation,

[00:33:51] Speaker 04:
probably have a lower rate coming.

[00:33:54] Speaker 05:
That's correct and that's precisely what the trial court said at page 1293 of the opinion.

[00:33:59] Speaker 05:
I would add that this rate was applied to the China-wide entity in every review leading up to these reviews, including the immediately proceeding

[00:34:08] Speaker 05:
including the immediately preceding reviews.

[00:34:10] Speaker 05:
And what Commerce did here is it went back and did its homework.

[00:34:12] Speaker 02:
Obviously, the trial court, at least in the fifth review case, did remand it and say, look, there is a... The reason why I was pushing you is that all the notions of administrative law suggest, in fact, state that what Commerce has to do is act reasonably, have to behave reasonably.

[00:34:29] Speaker 02:
And so in a circumstance like this where what you're trying to do is to compose an AFA rate

[00:34:35] Speaker 02:
for this person who's been deemed to be a PR entity.

[00:34:39] Speaker 02:
You just wonder why it is that commerce wouldn't willingly consider all information that is being offered.

[00:34:47] Speaker 02:
Doesn't commerce behave unreasonably if it just says, I'm sorry, you may have some.

[00:34:52] Speaker 02:
We have red guards at the end of case.

[00:34:54] Speaker 02:
We don't care if you have anything else.

[00:34:56] Speaker 05:
Well, again, Congress has a longstanding practice of looking to the highest rates that have been calculated in the proceeding.

[00:35:05] Speaker 05:
And this course has upheld that practice.

[00:35:08] Speaker 02:
Let me say you had a high rate in 2003.

[00:35:10] Speaker 02:
And now this is 2006 or 2007 or 2008, right?

[00:35:14] Speaker 02:
Right.

[00:35:15] Speaker 02:
And then the highest rate is very much lower.

[00:35:20] Speaker 02:
Would it be reasonable to retreat to the 2003 rate?

[00:35:24] Speaker 02:
Well, particularly in this instance.

[00:35:27] Speaker 02:
Yes or no?

[00:35:27] Speaker 02:
Would it be reasonable if you had a data point that was relevant?

[00:35:31] Speaker 02:
Say it was half.

[00:35:34] Speaker 05:
Yes, here, particularly when you have Hilltop repeatedly says, well, there have been calculated rates in the interim.

[00:35:41] Speaker 05:
But a number of the calculated rates that Hilltop is talking about are rates that were calculated for Hilltop.

[00:35:47] Speaker 02:
Hilltop is trying to talk about a third party.

[00:35:52] Speaker 02:
What they have is they say, you have Red Garden.

[00:35:54] Speaker 02:
Right?

[00:35:54] Speaker 02:
Red Garden is not a PR entity.

[00:35:57] Speaker 02:
Red Garden is a very nice rate.

[00:35:59] Speaker 02:
It would just happen to be a great big highway for a small amount.

[00:36:03] Speaker 02:
And I think what the adversary, Hiltop, is saying is, well, there's a Red Top head of cousin.

[00:36:10] Speaker 02:
And his cousin had data.

[00:36:12] Speaker 02:
And according to them, the data is less than the Red Top data.

[00:36:17] Speaker 02:
And they say they're newer.

[00:36:19] Speaker 02:
So it should be consistent.

[00:36:20] Speaker 02:
Well, I think with respect to counsel, he's making- Why should, on what theory can commerce say we just don't want to see that data?

[00:36:31] Speaker 05:
Well, I think counsel is making a different argument before your honors than he was making before commerce.

[00:36:35] Speaker 05:
So I want to clarify that.

[00:36:36] Speaker 05:
At the time before commerce, counsel's argument was, look, there are several companies in the investigation

[00:36:44] Speaker 05:
And we want to go on a fishing expedition to see whether there's anything that's helpful to us in all of their data.

[00:36:49] Speaker 05:
So in addition to the Red Garden data, we want you to release the data of those other companies.

[00:36:54] Speaker 05:
What he's arguing now is that there was another mandatory respondent in just one of the two reviews that's at issue here, the fourth review.

[00:37:02] Speaker 05:
There was another mandatory respondent.

[00:37:03] Speaker 05:
And he's saying you should have used that company's rate.

[00:37:05] Speaker 05:
There's a number of reasons why that would be inappropriate, one of which, importantly, this argument was raised on reply largely.

[00:37:13] Speaker 05:
But I'm familiar, because I continue to handle these China cases, that the company that he's talking about, we've learned in the seventh review, and we have arguments.

[00:37:24] Speaker 05:
I'm sorry, with ad hoc, actually, used different, for example, factors of production than ad hoc.

[00:37:29] Speaker 03:
Is that in the record before us?

[00:37:32] Speaker 03:
That's not argue on that.

[00:37:34] Speaker 03:
And you're out of your time.

[00:37:35] Speaker 03:
You're well into the five minutes of your colleague.

[00:37:38] Speaker 03:
So let's hear from your colleague, and I'll give you a full five minutes.

[00:37:43] Speaker 03:
Thank you.

[00:37:58] Speaker 06:
Thank you, Your Honor.

[00:37:59] Speaker 06:
Good morning, Your Honors.

[00:38:00] Speaker 06:
I'm Jordan Kahn with Picard-Kensarow representing the Appalee Ad Hoc Shrimp Trade Action Committee.

[00:38:06] Speaker 06:
Judge Clevinger asked for law, and I turned to the president of this court, which recognized back 15 years ago, that commerce enjoys particularly great discretion in applying an AFA margin to an uncooperative respondent.

[00:38:22] Speaker 06:
AFA is properly employed as a deterrent to non-cooperation.

[00:38:27] Speaker 06:
So we are in the apex.

[00:38:30] Speaker 02:
Nobody doubts any of that.

[00:38:32] Speaker 02:
The question is, on the corroboration issue, is there a reasonable relationship between their rate and 112, or was it sufficiently corroborated because there might be some information out there that's pertinent that wasn't taken into account?

[00:38:49] Speaker 06:
There's absolutely no requirement for Commerce to use the freshest, most pro-respondent data.

[00:38:54] Speaker 02:
Now, you know... You mean as a matter of law, Commerce can use the oldest and the most outdated information?

[00:38:59] Speaker 02:
Well, it is a qualified statutory direct.

[00:39:01] Speaker 02:
Does that case law say that the information isn't supposed to be outdated?

[00:39:05] Speaker 06:
The Court of International Trade said the mere passage of time does not prevent corroboration.

[00:39:11] Speaker 06:
And so here, Commerce did a thorough analysis using data from the largest respondent in the investigation.

[00:39:17] Speaker 02:
And we submit that that's a constant... You're seriously arguing that Commerce Day could take data that's 30 years old and ignore data that's fresh.

[00:39:28] Speaker 02:
Well, as my colleague... You're not saying that, are you?

[00:39:30] Speaker 06:
No, but there has to be... What are you saying?

[00:39:32] Speaker 06:
I am saying that in this case, it was entirely reasonable to go from the fourth and fifth review periods back to the investigation.

[00:39:40] Speaker 06:
That's the same amount of time as this

[00:39:42] Speaker 06:
court recently affirmed in Dongtai, as my colleague made clear.

[00:39:46] Speaker 06:
But one of the important elements of the analysis is whether the margin is sufficient to deter non-cooperation.

[00:39:55] Speaker 06:
Here, Hilltop's conduct was egregious.

[00:39:58] Speaker 06:
So they're trying to micromanage the corroboration requirement.

[00:40:00] Speaker 06:
You have to use the data of a cooperative respondent, Red Garden, even though they don't cooperate.

[00:40:08] Speaker 06:
And they're part of the enemy-wide entity.

[00:40:10] Speaker 06:
They don't dispute that.

[00:40:11] Speaker 06:
This is consistent with their theme throughout the litigation, trying to tell commerce how to do things.

[00:40:17] Speaker 06:
You have to honor our claimed independence from China.

[00:40:20] Speaker 06:
You have to accept that the ocean king this representation is immature.

[00:40:23] Speaker 03:
There's a purpose for corroboration and that's to make sure that there's some sort of practical reality between the AFA rate and current market conditions, correct?

[00:40:35] Speaker 03:
That's absolutely correct.

[00:40:37] Speaker 03:
So how can you argue then that if there's fresher data, say two-year-old data, that commerce can go back 30 years or 15 years or six years and rely on that data and totally ignore the fresher data?

[00:40:51] Speaker 06:
It goes back to this being the enemy-wide entity.

[00:40:53] Speaker 04:
Would you agree that if there was fresher enemy-wide adverse data on point,

[00:41:03] Speaker 04:
that it would be something that commerce should use in lieu of older NME adverse data.

[00:41:10] Speaker 06:
Commerce is the special master.

[00:41:12] Speaker 06:
I think it would be reasonable in that circumstance, but I would defer Commerce gets a groundswell of discretion here, too.

[00:41:17] Speaker 03:
It's reasonable in that circumstance, and that circumstance exists in this case.

[00:41:21] Speaker 03:
Why would it be unreasonable in this case?

[00:41:24] Speaker 06:
Excuse me, DeGerena, but it does not exist in this circumstance.

[00:41:27] Speaker 06:
There's no fresher enemy data.

[00:41:28] Speaker 06:
There's fresher cooperative respondent, and this respondent, Hiltup, did not cooperate.

[00:41:33] Speaker 06:
At every turn, they thwarted legitimate agency inquiries

[00:41:36] Speaker 06:
They concealed and denied the existence of their Cambodian affiliate throughout multiple reviews.

[00:41:44] Speaker 03:
We understand that part.

[00:41:45] Speaker 03:
We understand why AFA was selected, or there was a decision to resort to AFA, to an adverse inference.

[00:41:54] Speaker 03:
Let's get back to the corroboration.

[00:41:57] Speaker 03:
And there's a reason for the corroboration.

[00:42:01] Speaker 06:
Well, I don't believe that those two inquiries should be looked at in isolation, in a vacuum.

[00:42:05] Speaker 06:
I think they need to be looked at together.

[00:42:07] Speaker 06:
Gallant did impose a commercial reasonable requirement, but it should not be wielded by a malfeasent respondent to avoid consequence for their actions, to the extent that he'll thought... But we have to apply the law.

[00:42:21] Speaker 03:
So we have to apply Gallant, regardless of what the parties say, and in Gallant, we

[00:42:27] Speaker 03:
We set down that corroboration has to show that there's a reasonable link between the data that's used and current market reality.

[00:42:38] Speaker 04:
Isn't your short answer that it's unreasonable to use data from a cooperating respondent?

[00:42:46] Speaker 04:
It's micro data rather than macro data.

[00:42:49] Speaker 06:
That's right.

[00:42:50] Speaker 06:
And what Judge Pogue at the CIT found was that the enemy-wide, since the enemy-wide entity had been, that that had been applied throughout the history of this order, that going back to the investigation was reasonable.

[00:43:02] Speaker 06:
We don't have to prove that the Congress did the only reasonable thing, just that... It hadn't been challenged until now, sir.

[00:43:10] Speaker 06:
But the fact that they're challenging, I mean, they're saying that to the extent that there's any consequence for their misconduct, it's capped at 9% because that was applied to the cooperative respondents.

[00:43:20] Speaker 06:
That can't be the standard.

[00:43:21] Speaker 06:
The corroboration requirement cannot benefit those who perpetuate material misrepresentation and thwart agency inquiry.

[00:43:29] Speaker 03:
OK, you're out of time.

[00:43:31] Speaker 03:
Thank you.

[00:43:31] Speaker 03:
Thank you very much.

[00:43:42] Speaker 03:
Mr. Woodard, we store five minutes time, full time, too.

[00:43:45] Speaker 03:
Thank you.

[00:43:48] Speaker 07:
Thank you.

[00:43:50] Speaker 07:
As we were discussing earlier, I think it is very important to remember that the SAA explicitly talks about one of the concerns that Congress has is that use of earlier, outdated information may be unreliable because it's from a different time frame.

[00:44:07] Speaker 07:
And as this Court certainly recognizes,

[00:44:09] Speaker 07:
Commercial reality is just simply not stacked.

[00:44:12] Speaker 04:
The fact that information... Is there a later non-market economy nationwide adverse review that is on point?

[00:44:27] Speaker 07:
Well, Your Honor,

[00:44:29] Speaker 07:
What the government seeks to impose upon us, this burden, is impossible to meet because by virtue of the fact of it being- That was a yes or no question.

[00:44:39] Speaker 07:
There is the non-market kind, there is the China-wide rate.

[00:44:43] Speaker 07:
And by definition, the China-wide rate is never a calculated rate.

[00:44:48] Speaker 07:
It is simply the rate that they are assigning, which is the most adverse rate from prior reviews.

[00:44:54] Speaker 07:
So they're saying we should throw out

[00:44:57] Speaker 07:
the market economy, the cooperating respondents rate, but then what are you left with?

[00:45:02] Speaker 07:
If you're looking to get some view of what is the commercial reality in POR- You're seeking an updated nationwide rate is what you're seeking, right?

[00:45:11] Speaker 07:
Well, the department chooses an adverse rate.

[00:45:15] Speaker 07:
And if it is not from information that is contemporaneous, then the statute says they should then corroborate

[00:45:22] Speaker 07:
And the corroboration, what we're saying, has to be if it's going to be reliable.

[00:45:27] Speaker 04:
They can corroborate it, among other things, from the petition.

[00:45:30] Speaker 04:
Is that not correct?

[00:45:32] Speaker 07:
That is a list of individual sources that the SAA states could be usable.

[00:45:39] Speaker 07:
However, that does not, in any way, satisfy the concern about using outdated information.

[00:45:44] Speaker 07:
If they... If they, in fact, corroborate from the petition?

[00:45:48] Speaker 07:
They did not corroborate from the petition.

[00:45:49] Speaker 07:
What they corroborated from is using a minute percentage of sales data from a respondent in the original investigation.

[00:45:56] Speaker 03:
Let's address that real quickly.

[00:45:57] Speaker 03:
You're talking about the Red Garden data, right?

[00:45:59] Speaker 03:
Correct.

[00:46:00] Speaker 03:
Why is that unreasonable?

[00:46:02] Speaker 07:
Well, to begin with, Your Honor, as we've shown, Red Garden itself received an overall margin of de minimis, or zero.

[00:46:10] Speaker 07:
And so what they've done is

[00:46:14] Speaker 07:
Without question.

[00:46:15] Speaker 02:
They weren't looking to say, we're going to try to corroborate off of Red Garden's bottom line.

[00:46:23] Speaker 02:
They're looking at market conduct, right?

[00:46:27] Speaker 02:
They're looking at what was being charged for various products at various points in time.

[00:46:31] Speaker 02:
And at one point in time, Red Garden numbers were real high.

[00:46:36] Speaker 02:
Well, Your Honor, at one point in time.

[00:46:39] Speaker 02:
For a small percentage of their output.

[00:46:41] Speaker 07:
Correct.

[00:46:42] Speaker 07:
A whole lot of pounds.

[00:46:44] Speaker 07:
Correct.

[00:46:44] Speaker 07:
The question we have is that if that information, the sales that they have selected, is not even representative of Red Garden's margin itself.

[00:46:54] Speaker 07:
Because Red Garden received a de minimis of zero.

[00:46:56] Speaker 07:
They're not trying to corroborate Red Garden's margin.

[00:46:59] Speaker 07:
But if they're trying to corroborate an even broader spectrum.

[00:47:03] Speaker 03:
They're trying to corroborate the 112%

[00:47:06] Speaker 03:
as a countrywide data.

[00:47:08] Speaker 03:
It's commercially reasonable.

[00:47:10] Speaker 03:
Well, but if Red Garden data shows that there's a number of instances.

[00:47:15] Speaker 03:
In 2003.

[00:47:16] Speaker 03:
There's a large amount of volume.

[00:47:18] Speaker 03:
Correct, Your Honor.

[00:47:18] Speaker 03:
In 2003.

[00:47:20] Speaker 03:
That have been above or at the 112.

[00:47:22] Speaker 03:
Why is that not reasonable corroboration?

[00:47:24] Speaker 07:
Well, it's unreasonable, Your Honor, because what they've done is they've taken outdated information and attempted to corroborate it using data that is equally outdated.

[00:47:33] Speaker 07:
So at best,

[00:47:34] Speaker 07:
what they have accomplished.

[00:47:35] Speaker 03:
Let's say we find that it's not outdated information.

[00:47:38] Speaker 03:
Why would it be unreasonable?

[00:47:40] Speaker 07:
How could it not be outdated if commerce has clearly disregarded information?

[00:47:46] Speaker 07:
The question was a hypothetical.

[00:47:47] Speaker 07:
Well, it is still a question because this court has noted that, yes, it may be reasonable under certain circumstances for commerce

[00:47:59] Speaker 07:
to use a small percentage of data in order to corroborate the rate as a whole.

[00:48:05] Speaker 07:
But it's on a sliding scale.

[00:48:07] Speaker 07:
And the CIT in particular has noted that the higher the AFA rate is, then it seems reasonable that you should have a larger amount of corroboration.

[00:48:15] Speaker 07:
So again, I would say with that hypothetical, it remains unreasonable because what he's attempted to do is take a minute percentage of Red Garden's data that is not even reflective of Red Garden's reality and saying this demonstrates

[00:48:28] Speaker 07:
that this 112 rate reflects commercial reality for the industry at large.

[00:48:32] Speaker 07:
So notwithstanding the outdated concern, which we still feel is the largest, that we would believe that even then it would be a concern.

[00:48:46] Speaker 07:
In conclusion, Your Honor, we would urge this Court to consider again.

[00:48:51] Speaker 07:
The issue here with AFA is not whether the ultimate rate itself is punitive.

[00:48:58] Speaker 07:
said repeatedly, adverse influences are not intended to be punitive.

[00:49:02] Speaker 07:
They can have a deterrent ability, and that's understood.

[00:49:07] Speaker 07:
It can be punitive not just with the rate being applied.

[00:49:10] Speaker 07:
Could you conclude?

[00:49:11] Speaker 07:
Yes.

[00:49:12] Speaker 07:
Yes, sir.

[00:49:13] Speaker 07:
A rate can be punitive not just with what the rate is being applied, but with the amount of other information that commerce is disregarding.

[00:49:22] Speaker 07:
It can be punitive in the sense of

[00:49:24] Speaker 07:
what you are now treating as unavailable and applying adverse inference.

[00:49:29] Speaker 07:
Thank you.