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The next case is the Timken Company versus the United States et al.

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2014-1454.

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Mr. Depressed, when you're ready.

[00:01:12] Speaker 00:
I was so much depressed.

[00:01:14] Speaker 00:
Good morning.

[00:01:15] Speaker 01:
Thank you.

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Your Honours, our briefs raised three legal errors that the Department has committed and we believe that all of them are grounds for a remand.

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There is one law that I would like to start with because it is so absolutely fundamental to the administration of the anti-dumping law.

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The law was, as you know, changed in 1994.

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as a result of international negotiations.

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And the change required that Congress, instead of what it had always done, just looked at transaction-specific export prices, it was now required to look at average export prices.

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And this concerned Congress.

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So what did Congress do?

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It not only put in a section in the statute that said you have to look at average export prices, it also put in another section

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That said, you, when these particular conditions are satisfied, are allowed, are permitted to look at transaction export prices.

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Look at, use your old method.

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When, well, when these conditions are satisfied and the conditions are about masked and targeted dumping.

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And the irony is now that in this case, Commerce has used, has pointed to this provision which was put in

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for the very purpose of addressing mass thumping.

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Commerce is pointing to this provision to provide it with authority to set aside the evidence itself had uncovered that there was mass thumping.

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Well, the statute says may, right?

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It does say may.

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As you pointed out, it permits commerce to go with the A to T methodology.

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But it doesn't mandate that if these two conditions are met,

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that it's now without discretion and must apply the A to T methodology.

[00:03:16] Speaker 01:
The position of the Timken Company, which I think is the only one that finds support in the legislative history, is that what Congress intended to do is provide Congress with discretion to choose the tools that are thought was most appropriate to address the issue of targeted dumping.

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And there are numerous cases.

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When this case first, and not my case, of course, and the previous cases, it was a new practice.

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There are now a lot of cases where commerce in fact finds that yes, we've identified targeting or under the new test differentiated pricing and we don't have to apply our old methodology because the average methodology also takes care of the issue.

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This happens far more often than I thought would be possible.

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If you look at the various determinations... I thought that's one of the factors, right?

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If the A-to-A methodology can take care of the differences, then you're fine with that.

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But you know, we're not in that situation, because Commerce herself, or itself, has in the record, is evidence that demonstrates that there is a mass dumping, because that was Commerce's test, they did the test, they found

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They found that there was targeting, varying amounts for different companies, but targeting was found.

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They don't deny this.

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They're just not going to address it.

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And they also have on the record the results of the... They did some kind of sufficiency inquiry.

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That's right.

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Which to us makes no sense because when they first made their determination, it was presented to us in the form of post-preliminary calculation.

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So it was not

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we were not graced with much of an explanation other than to say, well, it's not enough.

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Whatever this number is, it's not enough.

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And so we then pointed to several decisions of the Commerce Department that had occurred before where they said that, no, we're not going to do this type of analysis because our test doesn't really aim to establish a totality of targeted sales.

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It just aims to establish whether it's in fact targeting.

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And if there is in fact targeting, then we are going to look at what it does to the margins.

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And if we think we need to apply our remedial or our traditional methodology, then we will.

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If we think that it's not necessary, then we won't.

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That has been their approach.

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This is the 22nd annual review.

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Right.

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Does the decision below represent a change from all the previous 21?

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Yes, it's the first time that we've been presented with a situation where we thought we were good, if I may speak colloquially.

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Commerce had, we were worried in the sense that we knew about the changes in the legislation, and we submitted

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commerce at one point in the proposed methodology and then seeing that the writing was on the wall, we submitted a targeted dumping allegation in plenty of time and then commerce postponed its feelings.

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But why don't they have discretion in determining their methodology?

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Well, they do have discretion to determine their methodology.

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What they do not have the discretion to do is to set aside

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the statutory goal, the premise for this provision is to address targeted dumping.

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It provides the agency with authority to pick a methodology, but it has to be a methodology that addresses the issue, mass dumping.

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You can't just choose, well, in this case... What do you mean by mass dumping?

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Do you mean targeted dumping?

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I think it's the same thing.

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I believe the SAA uses the term mass dumping, but I'm not...

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I believe it is the same thing.

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How many of the previous 21 annual reviews have been on appeal here?

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I'm very rarely the appellant.

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I'm usually on the other side.

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Isn't it because for most of them they used ANT?

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That's right.

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Because it was prior to this legislative change.

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Yeah, exactly.

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So your appeal to us is an appeal saying we want you to continue to do what you did for the last 21 reviews.

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Not that we want you to do something different than what you did for the... Yes, but we recognize the change in the law.

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But, you know, I think any interpretation that uses the discretion granted for a particular purpose, i.e.

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to address targeted dumping, then uses that same discretion to say, oh, why, I don't have to address targeted dumping, even if the conditions are satisfied, even if I myself determined that there was targeted dumping.

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That just cannot pass.

[00:08:01] Speaker 05:
Why not?

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It says the word may.

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It does provide discretion.

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As you open this argument, they're permitted to use that alternative tool, but the statute doesn't require that.

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I cite a number of cases.

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Two trade cases were cited in my original brief, and then I cited a non-tape case, the McBride case, in the reply brief.

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the basic premise which is shared with lots of other cases and other circuits, and it's also apparent from the dictionary definitions and so forth, that the word may in a statute, yes it does suggest that there is discretion being provided, but that discretion must be tested against

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the legislative intent against the structure of the statute and what Congress intended to accomplish.

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And then here apparently commerce's determination consistent with that Taiwan case talked about well we have to figure out whether there's a sufficiency of what's going on here of the targeting to determine whether in this instance we're going to go with the alternative methodology

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And in their federal register notice, I can't remember, 2008 or I think it's 2012, they announced that they were going to do these kinds of cases really on a case-by-case basis, right?

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Right.

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But the explanation, the mere statement that we are proceeding on a case-by-case basis is basically, you know, every review is based on a unique record.

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So every case is case-by-case.

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The stating that commerce does this on a case by case only means that it will, or hopefully will, take account of the evidence that is in the record that is particular to the particular case.

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Do I understand one of your arguments in this case to be that in the Wood memorandum, for example,

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commerce issued memorandum of decision and said we reject the de minimis rule and they go on and explain why they're going to reject the de minimis rule and then in the UAE review where they likewise issue a decision and say of course we reject the de minimis rule because targeting is

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meant to address situations where the overall average doesn't, isn't affected.

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Is your view that that is a position that was adopted by commerce because the Wood case came first.

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So the Taiwan case, the Judge Chen site that came after that.

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And it basically they're flip-flopping around whichever way the wind blows them on this de minimis rule as they please.

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And that while they, even if they had discretion, say we don't go with you on your first argument.

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So if they have discretion, they don't have the discretion to be inconsistent.

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That's not permitted.

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Is that one of your arguments?

[00:11:10] Speaker 01:
Yes, that is one of my arguments.

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Obviously, the agency is not constrained by side of decisiveness, and it can make different decisions, but... But not on identical facts.

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And here's the thing I don't understand.

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How are you ever supposed to know what the facts are?

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What I don't understand

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is that in every other review, if they say this qualifies for de minimis or this doesn't qualify for de minimis, the numbers don't ever get published.

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Those are all confidential.

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So how are you or any person, not just situated like you, but situated like the foreign importers, how is anybody supposed to know what the confines of this de minimis rule are that commerce has adopted?

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I agree, Verona.

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Judge Rastani pointed out that you didn't make that specific argument below in front of commerce and therefore she wasn't going to entertain that argument at the CIT level with respect to whether or not there was an adequacy of determining whether there was a sufficiency or insufficiency of some pattern of targeted dumping.

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Isn't that right?

[00:12:24] Speaker 01:
Well, I'd first like to say that I'm in my rebuttal time, but I raised before the agency all the same arguments that I raise now with the sole exception of a discretion argument because that was not put forward by the agency until the final IDM, so we didn't have access to that.

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Is there somewhere in the joint appendix that you can show us with a point that after the post-preliminary results came out from Commerce, in your comments you specifically pointed out that

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the determination that there was a sufficiency was totally inadequate?

[00:12:56] Speaker 01:
What we did, we attacked it head on.

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What we said was... You attacked it on whether or not they can even consider some notion of... No, no.

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That's right.

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But we also did more.

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We said, if you are really going to do that, then you probably should not.

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We didn't want them, you know.

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But if you're going to do this,

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You should look at a very different number.

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What you should look at is the total of sales to those customers or regions or time periods or whatever it is that you found or confirmed were targeted.

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Take those sales because then you have a denominator that's more consistent with the numerator and it makes more sense.

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Instead of taking this number that, yes, it's available,

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but it's being used for a purpose it was never intended to be used for.

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Because, you know, the test, the NAILS test never was set up to determine what the total number of targeted sales is.

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That's not what it does.

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It just confirms whether a particular customer is targeted or a particular region is targeted per an allegation.

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I first have to make an allegation.

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Comet doesn't even do its own independent review.

[00:14:12] Speaker 00:
Mr. Deprest, if you want to save time for a bottle, we'll give you three minutes in a bottle.

[00:14:16] Speaker 00:
Thank you very much.

[00:14:18] Speaker 00:
Ms.

[00:14:18] Speaker 00:
Hogan, you're going to split your time with Mr. Falcone, 10 and 5.

[00:14:33] Speaker 02:
Good morning, Your Honors.

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May it please the Court?

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This appeal really presents a very simple question.

[00:14:40] Speaker 05:
Oh, I don't find this case very simple at all.

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The methodology aside, the math aside, I think the legal question is, Commerce announced in its regulation in 2012 that it would normally use an average to average comparison method in both investigations and reviews.

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It considered Timken's arguments to use an alternate comparison methodology, but in the end concluded that it would follow its regulations.

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that was not, Timken is not arguing that that's contrary to statute or contrary to regulation.

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So the only legal question is then, was what commerce did either an abuse of discretion or somehow arbitrary or capricious?

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And the two basic arguments that Timken makes are first, that commerce had some established or long-standing practice in which it would always consider the A to T method any time there was a single instance of targeted dumping.

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And this is simply not true, and I can go through the facts of the prior proceedings.

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It's also particularly not true because this NAILS methodology was relatively new.

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In fact, this was the first time that it was being applied in administrative review, so Commerce was still developing this practice.

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And then the second argument would be somehow that Commerce failed to provide sufficient guidance to the parties as to

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when commerce would depart from its regulatory default method.

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And as the trial court noted, Timken did not argue that the particular percentages presented in this case should be considered sufficient or that commerce should establish some bright line rule.

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So that argument was never presented.

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And to the extent that that's a question

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that should concern anyone, I think it's worth noting that the nails test was subsequently abandoned by Commerce.

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This isn't even the test that Commerce uses now to test for targeted dumping.

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But to the extent that it's still there in some proceedings before the Court of International Trade and before this court, Commerce subsequently did establish a number that in the CP Kelko case on remand

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So to the extent that there was any question about polarity.

[00:17:05] Speaker 05:
In the Kelko case, did Commerce respond to that remand order on that?

[00:17:12] Speaker 05:
Yes.

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Kelko, Judge Goldberg, sent the case back to Commerce to more fully explain several different things.

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Right.

[00:17:21] Speaker 05:
And Commerce is responding?

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Yes.

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And they established a number, an actual threshold?

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Right.

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And would that threshold result in these litigants receiving different treatment or the same treatment?

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I'm not sure I can answer that without revealing... No, you don't reveal what the threshold is.

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If you've established a threshold, and this is a definitive policy determination, then you can certainly reveal whether or not that threshold would result in a different... It would not have met the threshold.

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So this case would not have come out differently.

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even decided after the threshold was established.

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Correct.

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So this really, I guess, sort of puzzles why we're here at all, because this is not an issue.

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Because this is all backward-looking, this is not forward-looking at all?

[00:18:15] Speaker 02:
This is not forward-looking, this is not, Commerce has subsequently identified a differential pricing test that it's now using to identify targeted dumping, and so

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again, within the very substantial discretion that Commerce has, using the default comparison method that it set forth in the regulation that it was going to use and did use here.

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And as the trial court noted, the percentages of targeted sales here were, quote, very small.

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And Commerce did not see that as a reason to depart from its normal default methodology.

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Your brief was really fighting against

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equating this sufficiency inquiry with a de minimis standard.

[00:19:03] Speaker 05:
And I need help.

[00:19:07] Speaker 05:
Where's the daylight between the two things?

[00:19:09] Speaker 02:
So I think there's two things.

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One is sometimes this de minimis terminology was really talking about the first step of the NAILS test.

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Is there a pattern?

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And there's no de minimis requirement there.

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If it meets the definition of that first standard deviation test, there is a pattern.

[00:19:27] Speaker 02:
I think why we really are pushing against that de minimis language here as opposed to using a sufficiency language is that, again, one of the reasons commerce decided to approach this on a case by case basis was because it was trying to develop a methodology against real world facts and it didn't want to say there's a de minimis standard or there's a certain percentage.

[00:19:50] Speaker 02:
But there's a sufficiency standard.

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Because a sufficiency is really more of a

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Stepping back, so we have the results of the NAILS test.

[00:20:00] Speaker 02:
There are targeted sales, there's no doubt about that, but let's step back and look at whether the percentage of these sales by value and by volume compared to the universe of sales, whether it makes sense to depart from, whether those small percentage of sales make sense to depart from what we've said we're going to use as a standard.

[00:20:24] Speaker 02:
And I know that there is some frustration that- Do you know why that to me sounds almost a little bit like a de minimis standard?

[00:20:31] Speaker 02:
Because it is one.

[00:20:32] Speaker 02:
I can certainly understand why many of the parties have called it a de minimis standard and why there's a de minimis standard.

[00:20:40] Speaker 05:
Yeah, the China case, the UAE case, the respondents were saying, hey, you need to consider the pattern on whether it's significant enough, whether it meets some de minimis

[00:20:52] Speaker 05:
standard and commerce each time pushed back on that and said, no, we're not going to do a de minimis standard.

[00:21:00] Speaker 05:
Now we're looking at a case that says, ah, these are insufficient.

[00:21:06] Speaker 02:
What commerce said was that we're not going to refuse to find a pattern even if the pattern is small.

[00:21:13] Speaker 02:
So just as here, commerce didn't refuse to find a pattern simply because the percentages were small.

[00:21:20] Speaker 02:
not withstanding that, let's look back at, now that we've established a pattern, we've established that there are targeted sales, let's look at that in the big picture, in the overall scheme.

[00:21:34] Speaker 02:
And sufficiency is the term that commerce has selected or had selected for the purposes of this test.

[00:21:43] Speaker 03:
I feel like you're doing a little bit of rewriting history, and maybe it doesn't matter, and you can explain to me why it doesn't matter,

[00:21:50] Speaker 03:
In the Wood memorandum, Commerce said the department will apply eight average transaction comparisons for all sales and calculating the weighted average dumping margin.

[00:22:04] Speaker 03:
In addition, the department determines establishing a de minimis standard would not be appropriate because once the department finds any instances of targeted dumping,

[00:22:15] Speaker 03:
The department has determined that application of the average transaction methodology is necessary, period.

[00:22:21] Speaker 03:
That's all there is.

[00:22:24] Speaker 03:
So I don't think that you're right that, oh, to the extent that we rejected de minimis, it was insane about the pattern.

[00:22:29] Speaker 03:
I mean, that language clearly does not go to the pattern.

[00:22:34] Speaker 03:
You may tell me it's not an established position or a clear policy statement.

[00:22:39] Speaker 03:
It's not federal regulation.

[00:22:41] Speaker 03:
I mean, I'm looking to hear you tell me why that doesn't establish a policy by Commerce, but I don't think it's fair what you said a minute ago.

[00:22:50] Speaker 02:
Isn't that true?

[00:22:52] Speaker 02:
My recollection from the wood flooring case is that that was a case in which Commerce had decided to use the AT method.

[00:22:58] Speaker 02:
And so the question was, do you apply the AT method to only targeted sales, or do you apply it to all the sales?

[00:23:07] Speaker 02:
And I think the trial court noted that.

[00:23:09] Speaker 03:
No, no, actually, here, let me clarify your understanding.

[00:23:12] Speaker 03:
The department disagrees with GOK, LAO, Wood, and Sampling Group's suggestion to modify the current targeting.

[00:23:18] Speaker 03:
And number one, and they established the multitude of issues on appeal, number one is adopted amendments rule.

[00:23:24] Speaker 03:
Number two is apply average and transacted methods only to.

[00:23:27] Speaker 03:
the A to T sales.

[00:23:29] Speaker 03:
And then here, you say, we're going to apply it to everything.

[00:23:32] Speaker 03:
In addition, the department rejects the notion of a de minimis.

[00:23:35] Speaker 03:
These were two discreetly argued issues, and you reached two different holdings with regard to them.

[00:23:42] Speaker 03:
So I guess I definitely don't read wood the way you're suggesting your recollection is.

[00:23:48] Speaker 03:
So tell me why, if I read wood the way I do, nonetheless, I shouldn't view it, because this is what I'm hoping and looking for you to do, quite frankly, is explain to me why this doesn't

[00:23:58] Speaker 03:
create a scenario in which commerce has done something improper by flip-flopping around.

[00:24:03] Speaker 03:
Look, commerce has the discretion.

[00:24:04] Speaker 03:
I'm with you.

[00:24:04] Speaker 03:
You got me.

[00:24:06] Speaker 03:
But discretion is bounded.

[00:24:07] Speaker 03:
And discretion doesn't allow you to flip-flop from one circumstance to another and thereby reaching consistent results in otherwise identical cases.

[00:24:14] Speaker 03:
So if this is a policy statement by commerce, we're not going to apply it to minimas.

[00:24:17] Speaker 03:
If there's a single targeted dumping, boom, you're stuck with A&T.

[00:24:21] Speaker 03:
A&T.

[00:24:22] Speaker 03:
You understand where I'm going.

[00:24:23] Speaker 03:
So now please explain to me why this, if I interpret it the way I do,

[00:24:27] Speaker 03:
you don't interpret it the same way and that's fine, but if I interpret it the way I do, why it shouldn't cause me pause?

[00:24:35] Speaker 02:
If the court reads that language in the matter suggested, it certainly does not create what we would call an established or long-standing practice of commerce, always doing something one way.

[00:24:50] Speaker 03:
Well, it might not be long-standing, but when Commerce comes along to one case and says, we're never applying de minimis, we don't agree on what it says.

[00:24:58] Speaker 03:
Na, na, na, na, never, never, never, uh, uh, uh.

[00:25:01] Speaker 03:
And then in the next case, they say, ah, de minimis, hey, looks good here, let's apply it.

[00:25:04] Speaker 03:
Wouldn't that be problematic?

[00:25:06] Speaker 03:
I mean, wouldn't that be the kind of decision-making that feels arbitrary and capricious?

[00:25:11] Speaker 03:
I don't have a problem with Commerce actually doing that.

[00:25:14] Speaker 03:
Then they have to explain why, right?

[00:25:16] Speaker 03:
You know, circumstances have changed, or this case involves different facts, or something.

[00:25:20] Speaker 03:
I mean, you just have some obligation to explain, because the executive is free to change its mind, you know, as the elections warrant.

[00:25:26] Speaker 03:
But, you know, they have to explain it when they do 180 degree about faith.

[00:25:31] Speaker 02:
Sure.

[00:25:32] Speaker 02:
And I would say, even assuming that that's what commerce did, there's a couple different reasons to treat it differently.

[00:25:37] Speaker 02:
Of course, the facts are different.

[00:25:39] Speaker 02:
And I certainly understand the court's concern that we don't always know what the facts are, because they're often BPI.

[00:25:44] Speaker 02:
But this was also, these three administrative reviews were the first administrative reviews that Commerce was going to use the A-to-A method in a review as opposed to an investigation.

[00:25:55] Speaker 03:
And I think there is some, although Commerce agrees... I don't understand the difference between reviews and investigations, and I didn't find the arguments persuasive in the briefing on this point, so go to your next point.

[00:26:06] Speaker 02:
The bottom line is that Commerce announced in the post-preliminary memorandum that it didn't find those specific percentages to be sufficient to warrant consideration of the AT.

[00:26:18] Speaker 02:
The parties had the opportunity to argue and to convince Commerce otherwise, and Commerce declined to depart from what it said it was going to do in its regulations.

[00:26:29] Speaker 05:
And I'm sorry, I know we're cutting a little bit into your co-counsel's time, but can you

[00:26:34] Speaker 05:
Tell me what the Kelco remand said, what did Commer say as to the de minimis efficiency thing and which part is it actually used in and then how does it determine whether something is de minimis or sufficient or insufficient?

[00:26:53] Speaker 02:
Right, so in the CP Kelco case on remand, Commer set forth a 5% threshold for sales passing the mail test in order to apply AT.

[00:27:02] Speaker 02:
So to the extent that

[00:27:04] Speaker 02:
we needed now a benchmark for applying, for consideration of AT, that was the benchmark that commerce is.

[00:27:11] Speaker 02:
So after you do the NAILS test and determine that there is targeted sales, you look to see what percentage of those sales compared to the value and volume of the university sales.

[00:27:22] Speaker 05:
So it's part of the MAE.

[00:27:24] Speaker 02:
It's part of the MAE.

[00:27:25] Speaker 05:
It's not part of the pattern.

[00:27:28] Speaker 05:
No.

[00:27:30] Speaker 02:
And now we're using differential price.

[00:27:32] Speaker 05:
Using something else.

[00:27:33] Speaker 02:
Yes.

[00:27:33] Speaker 05:
Nail test is gone.

[00:27:35] Speaker 02:
It is no longer being used in ongoing.

[00:27:38] Speaker 02:
I mean, there's still, like I said, there's still cases that are still out there being litigated that this issue is still an issue.

[00:27:43] Speaker 02:
And if I could just make one quick point, I think to the point that commerce is not addressing targeted dumping, there are now two cases before this court where commerce did apply the AT method in

[00:27:56] Speaker 02:
after applying the NAILS test to address targeted dumping.

[00:27:59] Speaker 03:
I feel both of those meet the 5% threshold.

[00:28:02] Speaker 03:
That I don't know.

[00:28:04] Speaker 03:
Are you going to end up in trouble if that's not the case?

[00:28:07] Speaker 03:
I hope not.

[00:28:09] Speaker 00:
Thank you, Ms.

[00:28:10] Speaker 00:
Hogan.

[00:28:10] Speaker 00:
We'll give Mr. Falcone his full five minutes.

[00:28:14] Speaker 00:
Thank you.

[00:28:14] Speaker 00:
And when Mr. Depressed comes up, we'll give him his full five minutes.

[00:28:24] Speaker 04:
May it please the court, Chris Falcone, on behalf of the SKF companies, just to add one thing to the whole de minimis commerce, potentially flip-flopping.

[00:28:37] Speaker 04:
I just wanted to point out that this court has held in... You're not going to point out that we flip-flop, are you?

[00:28:43] Speaker 03:
That's not going to do much favor with us.

[00:28:45] Speaker 03:
No, no, no.

[00:28:45] Speaker 04:
I was going to say that in allied signal aerospace, this court has held when commerce is making

[00:28:53] Speaker 04:
discretionary decision on a case-by-case basis, it need only act within its discretionary, or within its statutory authority, and does not need to provide a reasoned analysis.

[00:29:04] Speaker 03:
Yeah, but once you do provide a reason, you can't come along in the next case and provide the exact opposite reason, right?

[00:29:10] Speaker 03:
I mean, if all other things are the same, I mean, you're right, Congress doesn't have to explain it all, but once they choose to, they don't get to go to the flip-flop.

[00:29:17] Speaker 04:
Well, I believe that case, I believe the court said

[00:29:22] Speaker 04:
you don't have to provide a reasoned analysis to explain every departure from your prior approach.

[00:29:29] Speaker 04:
So in that case, they had one approach for determining what the best information available was.

[00:29:35] Speaker 04:
And a party argued that they were doing it a different way this time, and that they didn't provide an explanation for their shift in approach.

[00:29:44] Speaker 04:
And this court held, because it was a discretionary case by case issue, that they didn't have to provide that kind of

[00:29:52] Speaker 04:
reasoned analysis as long as they were acting within their statutory authority.

[00:29:57] Speaker 04:
And now I just want to go back to Kimpkin's first argument.

[00:30:03] Speaker 04:
They placed a lot of weight on the statute and Congress intended by passing the statute for commerce to address every instance of targeted dumping.

[00:30:15] Speaker 04:
But what they failed to mention is that the statute doesn't even apply to administrative reviews.

[00:30:20] Speaker 04:
the statute 1677F-1D1 only applies, that sets forth the standards for addressing target and dumping only applies to investigations.

[00:30:30] Speaker 04:
And as Congress noted in their final results, there is no statutory provision addressing target and dumping in reviews.

[00:30:38] Speaker 03:
So does that mean, according to you, they can't use A&T in reviews at all ever, even if identical circumstances are otherwise present?

[00:30:48] Speaker 04:
Well, one of our colleagues did argue that.

[00:30:52] Speaker 04:
One of our colleagues did argue that.

[00:30:53] Speaker 04:
We did not argue that.

[00:30:55] Speaker 03:
So you're going to let them do it even though there isn't a statute that allows them to do it.

[00:31:00] Speaker 03:
But you nonetheless want me to recognize the distinction.

[00:31:02] Speaker 03:
Why, precisely?

[00:31:06] Speaker 04:
Because Congress didn't say anything about it.

[00:31:11] Speaker 04:
Their position is basically Congress didn't limit how we do this in review so we can do it how we want.

[00:31:19] Speaker 04:
if statute says nothing about it and we don't want to apply the alternative methodology here if there's nothing saying we need to.

[00:31:28] Speaker 04:
They also suggest that there's these line of cases.

[00:31:38] Speaker 04:
I know you said you don't find it persuasive, but I just wanted to point out that none of these cases were reviews and in the only review prior to this in which commerce

[00:31:47] Speaker 04:
address-targeted dumping, it followed the same approach by examining the volume of sales, passing the nails test, and decided, at least for one of the respondents, I believe that it wasn't sufficient.

[00:32:04] Speaker 04:
And in terms of the divinitmus test also, I just wanted to point out that it's not as

[00:32:17] Speaker 04:
Commerce was applying some bright line rule in every case.

[00:32:21] Speaker 04:
They were approaching it on a case by case basis.

[00:32:24] Speaker 04:
And there wasn't a de minimis test in the sense that they were declining to do something they're generally required to do.

[00:32:32] Speaker 04:
That's how I normally think of a de minimis test.

[00:32:34] Speaker 04:
Statute says I have to do something, but the metric triggering that is at a very low level.

[00:32:40] Speaker 04:
So we don't need to do it.

[00:32:42] Speaker 04:
But here the statute didn't require them to do anything.

[00:32:45] Speaker 04:
They were just looking at the volume of sales passing the nails test and using that as a factor to make a discretionary decision.

[00:32:54] Speaker 04:
And I see my time is almost up.

[00:32:57] Speaker 04:
I just want to note you guys, your honors asked about, sorry, your honors asked about whether this has ever happened in previous reviews in this proceeding.

[00:33:11] Speaker 04:
Well, it hasn't.

[00:33:12] Speaker 04:
It's because this is the first time that there was an allegation

[00:33:16] Speaker 04:
of targeted dumping ever made.

[00:33:17] Speaker 04:
So there's no reason for commerce ever to address this issue in previous ball bearing reviews.

[00:33:24] Speaker 00:
Thank you, Mr. Falcone.

[00:33:26] Speaker 00:
We'll give Mr. Depress his full five minutes if he needs it.

[00:33:45] Speaker 01:
Thank you, everyone.

[00:33:46] Speaker 01:
First, I would like to provide the citations that you have asked for.

[00:33:53] Speaker 01:
The Joint Appendix contains our post-preliminary comments in their entirety, in fact.

[00:34:02] Speaker 01:
And so I've brought up only one volume here, but they contain the same arguments.

[00:34:08] Speaker 01:
So at page, Joint Appendix page 4973, you will find the argument

[00:34:16] Speaker 01:
that we made about a specific number.

[00:34:18] Speaker 01:
I think that's what we were concerned about.

[00:34:21] Speaker 01:
And what we said was we went through the test and what would make sense.

[00:34:32] Speaker 01:
And then we have some example that we lay out to try to make it more understandable, which got some billing later.

[00:34:43] Speaker 01:
And then we propose that commerce should use a numerator in the ratio that consisted of all the sales to the customers or regions of time periods that the department had found to be targeted or identified, that were identified by the test.

[00:35:05] Speaker 01:
And so that is the argument that we used, that we raised about a specific number.

[00:35:11] Speaker 01:
after we argued that there was no place for this at all.

[00:35:18] Speaker 01:
Then I would also like to address the statement that was just made about the authority of the Department of Commerce to even do this in reviews because the statute talks about this in the context of investigations.

[00:35:39] Speaker 01:
that argument just holds no substance whatsoever because there is a provision in the statute about reviews, but it assumes that commerce and reviews used transaction-specific prices.

[00:35:59] Speaker 01:
And it says, when comparing export prices of individual transactions to the weighted average price of sales of the foreign-like product,

[00:36:09] Speaker 01:
the administrating authority shall limit the averaging of prices to a period not exceeding a calendar month.

[00:36:17] Speaker 01:
So, you know, it assumes that commerce would look at transactions to save prices.

[00:36:24] Speaker 01:
Now, as a result of the WTO dispute, when the agency introduced changes to regulations,

[00:36:35] Speaker 01:
in 2012, in February of 2012, it stated that, okay, so we're now going to do the same, by regulation, we are going to do the same thing that we did before in investigations, except for this business of limiting the averaging to one month.

[00:36:52] Speaker 01:
We're going to do the same thing and we're going to apply the same criteria.

[00:36:57] Speaker 01:
That addresses the question.

[00:37:01] Speaker 05:
They said they're going to do it on a case-by-case basis.

[00:37:04] Speaker 01:
Yeah, I don't see anything in that statement that would somehow undermine our position.

[00:37:12] Speaker 01:
I applaud the agency's efforts to make case-by-case determinations.

[00:37:16] Speaker 01:
They have to be case-by-case.

[00:37:17] Speaker 01:
They have to reflect the record of each individual review.

[00:37:25] Speaker 00:
Anything more, Mr. Depressed?

[00:37:27] Speaker 01:
I have nothing more.

[00:37:29] Speaker 00:
Thank you very much.

[00:37:30] Speaker 00:
The case should be taken under advice.

[00:37:36] Speaker 05:
The honorable court is adjourned until tomorrow morning at 10 o'clock a.m.