[00:00:03] Speaker 03:
The next case for argument is 16-1006, Viet Mai, frozen foods versus United States.

[00:01:01] Speaker 03:
Mr. Nestle.

[00:01:06] Speaker 05:
Good morning.

[00:01:07] Speaker 05:
May it please the court, I'm Matt Nestle, with Hughes, Hoverton, Reed, and Council to be at EMA, which is a successor in interest to Grow Best in EMA Industrial Vietnam.

[00:01:19] Speaker 05:
This is a relatively straightforward case involving a unique, if somewhat Kafkaesque, set of facts.

[00:01:28] Speaker 05:
In the fourth administrative review,

[00:01:30] Speaker 05:
For the A.D.

[00:01:31] Speaker 05:
order on frozen shrimp from Vietnam, Grobus and Ymei sought to be treated as a voluntary respondent in order to seek at that time what was called three zeros revocation.

[00:01:43] Speaker 03:
Do you assume?

[00:01:44] Speaker 03:
I'm sorry?

[00:01:44] Speaker 03:
I'm sorry to cut you off, but time is limited.

[00:01:46] Speaker 03:
And I think we all know what the facts here.

[00:01:48] Speaker 03:
But it seems, I mean, you may characterize it as Kafkaesque.

[00:01:51] Speaker 03:
But the fact is that you asked for this.

[00:01:56] Speaker 03:
And then you wanted to change your mind, and the commerce said no.

[00:02:01] Speaker 03:
Why is that improper, unlawful?

[00:02:04] Speaker 03:
Why is that problem here?

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

[00:02:07] Speaker 05:
The reason is because two years have gone by during the course of the litigation.

[00:02:12] Speaker 05:
During that period of time, and the litigation before Judge Pogue at the CIT was lengthier than perhaps normal because there were multiple parties, multiple claims having been brought.

[00:02:22] Speaker 05:
It was a consolidated appeal.

[00:02:24] Speaker 05:
Two years passed.

[00:02:25] Speaker 03:
Two years passed between what?

[00:02:30] Speaker 05:
Between the Commerce Department's original AR-4 final results and the judge's final decision in that first appeal.

[00:02:39] Speaker 05:
During that time, a change in ownership occurred with regard to the company at issue.

[00:02:47] Speaker 05:
What used to be called Grovest became VMA.

[00:02:49] Speaker 05:
It was the subject of a relatively messy divorce between the joint venture partners.

[00:02:54] Speaker 05:
And as a result, it became clear to the company over time that it was going to be difficult, if not impossible, to follow through with what it had originally requested.

[00:03:03] Speaker 03:
And what was that period of time, what was the length of that period of time between, you were talking about the original period, the length protracted period between commerce and CIT ordering commerce to go forward, and then what amount of time passed before you went back and asked to terminate?

[00:03:23] Speaker 05:
So the change in ownership occurred during the course of the litigation.

[00:03:28] Speaker 05:
The court ultimately decided, Judge Pogue decided, that this should go back to the Commerce Department for them to actually go through with the voluntary and examination of the company.

[00:03:41] Speaker 04:
Did the change in ownership occur before that decision issued?

[00:03:44] Speaker 05:
Yes, it did.

[00:03:45] Speaker 05:
It did.

[00:03:45] Speaker 05:
But at that time, the company didn't realize

[00:03:48] Speaker 05:
that it was going to be difficult, that the divorce between the joint venture parties was going to make that difficult for them to follow through.

[00:03:57] Speaker 03:
But I'm not sure you answered my question, which was what period of time elapsed between the CIT's order in Congress to go forward and the time that you came forward and said, never mind?

[00:04:09] Speaker 05:
The final judgment was issued by the court in September.

[00:04:15] Speaker 05:
And we went to the Commerce Department with our withdrawal request in December.

[00:04:20] Speaker 05:
It was about 60 days after Commerce had actually issued an initiation notice for the reconducted review.

[00:04:26] Speaker 05:
But by that point, importantly, nothing had happened in the reconducted review.

[00:04:31] Speaker 05:
The Commerce Department had not issued any questionnaires.

[00:04:34] Speaker 05:
There was not an expenditure of government resources with regard to the case.

[00:04:40] Speaker 02:
Well, they sent you a supplemental questionnaire right around the same time you made your withdrawal.

[00:04:45] Speaker 02:
30 days later, about a month later.

[00:04:47] Speaker 05:
That's right.

[00:04:49] Speaker 02:
But not at the same time.

[00:04:50] Speaker 02:
The government's telling us they were putting in time promptly as soon as they announced in their notice, which was before you made your withdrawal, that they were going to do this examination per the CIT's order that commanded them to.

[00:05:07] Speaker 02:
based on your request that they do it.

[00:05:10] Speaker 05:
Your Honor, at that point, they had not issued the questionnaire.

[00:05:15] Speaker 05:
The question they ultimately issued, the supplemental questionnaire they ultimately issued, was a four-page questionnaire.

[00:05:22] Speaker 05:
The expenditure of resources that would have happened by the time we requested that we halt the proceedings and not go any further could not have been significant by that point.

[00:05:33] Speaker 02:
I'm not sure how to think about the case.

[00:05:36] Speaker 02:
One thing that strikes me is your position is not particularly sympathetic given everything that happened before your request to withdraw.

[00:05:45] Speaker 02:
But beyond that, is it your view that commerce had no choice, no discretion?

[00:05:53] Speaker 02:
It was commanded by law that they must have withdrawn considering you as a voluntary respondent once you made that

[00:06:04] Speaker 05:
It's our position that it is an error of law for them to have defined that they had no choice but to proceed because it had been taken outside the authority of the CIT.

[00:06:16] Speaker 05:
There was a final judgment.

[00:06:17] Speaker 05:
There was not a pending remand.

[00:06:19] Speaker 05:
There was a final judgment.

[00:06:20] Speaker 05:
If they felt like they needed to go to the judge and get the judge's approval, as Judge Pogue pointed out in his decision, they could have done so under CIT Rule 60.

[00:06:30] Speaker 02:
Why couldn't you have done that?

[00:06:31] Speaker 05:
Because Rule 60B does not apply to us as the party.

[00:06:37] Speaker 05:
The party that is specifically discussed as the relevant party in Rule 60B is

[00:06:44] Speaker 05:
may relieve a party, on motion and just terms, the court may relieve a party or its legal representative from a final judgment.

[00:06:51] Speaker 05:
The party that had the burden was the Commerce Department.

[00:06:54] Speaker 05:
So it was the Commerce Department.

[00:06:56] Speaker 05:
It was the entity that could have taken advantage.

[00:06:59] Speaker 03:
I'm not sure I'm clear on what you're arguing.

[00:07:01] Speaker 03:
So you're saying the error here was Commerce perceived that it was compelled to do this.

[00:07:05] Speaker 03:
Your view is that they had the discretion as to whether or not to let you rescind or not.

[00:07:11] Speaker 03:
That's right.

[00:07:14] Speaker 03:
So why are you asking for a remand to rescind the voluntary examination?

[00:07:19] Speaker 03:
If that's your story, why wouldn't it at most be send it back for commerce to make this determination at its discretion?

[00:07:28] Speaker 05:
I guess because it's a two-step process.

[00:07:31] Speaker 05:
Number one, they have claimed they had no choice.

[00:07:34] Speaker 05:
And what I'm saying is, yes, they did have a choice.

[00:07:37] Speaker 05:
they could have rescinded the fact that there was a final judgment didn't tie their hands, didn't prevent them from doing that.

[00:07:43] Speaker 02:
Did you ever recommend below that, hey, Commerce, why not you file a 60B motion to the trade court?

[00:07:51] Speaker 05:
We didn't specifically propose that method.

[00:07:56] Speaker 05:
By the time I got any reaction from them, all I had was no reaction other than a supplemental questionnaire in front of me.

[00:08:03] Speaker 04:
Didn't the CIT say, well, it

[00:08:07] Speaker 04:
Even if it was in their discretion, they had just reason for not rescinding the proceeding.

[00:08:15] Speaker 04:
And so why isn't that enough given that what you're saying is they certainly had the power to decide to go ahead and proceed with this investigation?

[00:08:24] Speaker 05:
They had the power.

[00:08:25] Speaker 05:
They also had the power not to.

[00:08:26] Speaker 05:
And what we have alleged is that it was arbitrary and capricious for them to proceed under the facts of the case, the fact that

[00:08:34] Speaker 05:
that the amount of time that elapsed during the course of the appeal and the events that occurred during that time, which was most importantly the change in ownership of the company, put the company in a situation where going forward with what otherwise would have been a benefit to them, a benefit of a lower duty rate, a benefit potentially of revocation of the order, the company was saying, OK, because of the changes that occurred in our corporate structure,

[00:09:02] Speaker 05:
We can't proceed with this.

[00:09:05] Speaker 05:
And as a result, we are willing to stand pat with what you would assign to us in the first place.

[00:09:10] Speaker 04:
But what about the fact that there was all that litigation in the interim, all those various appeals to the CIT?

[00:09:16] Speaker 04:
Doesn't that activity count in any way?

[00:09:19] Speaker 04:
Well, I mean, I see, for example, 19 CFR section 351-204-D2 says that a voluntary respondent accepted for individual re-examination will be subject to the same requirements as a mandatory respondent.

[00:09:36] Speaker 05:
Right, but to apply that provision in this context in the aftermath of litigation during which a long period of time had elapsed

[00:09:45] Speaker 05:
and during which a change in the company's corporate structure had occurred, makes that provision not as applicable as it would be if we had been in a situation where the review had proceeded, a shorter period of time it'll lapse during the review proceeding, and suddenly they chose us as a volunteer and we say, oh no, we don't really want to do it now.

[00:10:08] Speaker 05:
Very different set of facts.

[00:10:11] Speaker 05:
The other side has pointed out some other cases, such as carbon steel from Sweden,

[00:10:15] Speaker 05:
In that situation, the company was chosen as a volunteer respondent.

[00:10:18] Speaker 05:
They went through several pieces, parts of the proceeding, and suddenly a cost investigation was initiated.

[00:10:26] Speaker 05:
And the company said, oh, you know what?

[00:10:27] Speaker 05:
I don't want to do that.

[00:10:29] Speaker 05:
Let's stop.

[00:10:30] Speaker 05:
And the Commerce Department said no.

[00:10:31] Speaker 05:
Well, by that point, of course, you go that far along, you're in the proceeding, and the company says they want to back out.

[00:10:37] Speaker 05:
I don't blame the Commerce Department for doing it.

[00:10:40] Speaker 05:
In this instance, I think it's completely different.

[00:10:43] Speaker 05:
with all due respect, Your Honor, I think we should be viewed in a sympathetic manner because they're the ones in the first place that didn't follow the law.

[00:10:52] Speaker 05:
If they had followed the law in the first place and granted our request to be chosen as a voluntary respondent, we would have happily gone through the whole thing at that time.

[00:11:00] Speaker 05:
But the amount of time that passed in the interim is what caused us to be in the position we're in.

[00:11:05] Speaker 05:
And I think we are far more sympathetic than you give me your credit for in light of that passage of time.

[00:11:11] Speaker 05:
The reason I called it Kafkaesque is because

[00:11:13] Speaker 05:
The company requested to be treated as a volunteer, had the reason to be treated as a volunteer, and convinced Judge Pogue that we should have been treated as a volunteer.

[00:11:22] Speaker 05:
They didn't do what they should have done back in 2009 and treated us as a volunteer respondent then.

[00:11:29] Speaker 02:
Well, you could have withdrawn the request and mooted the litigation in front of the trade court in Grow Best 2 so that there never had to be a Grow Best 2.

[00:11:37] Speaker 05:
At that time, we didn't know that this was going to be a problem.

[00:11:43] Speaker 02:
A change of ownership happened well before the order in Grow Best 2 issued by the trade court.

[00:11:48] Speaker 05:
As you can imagine your honor changes in ownership don't always necessary particularly the breakup of joint venture partners in somewhat messy divorce didn't didn't necessarily Play out yet and indicate to the company the extent to which they'd have difficulty in verifying etc What else whatever would have to happen in the course of the?

[00:12:07] Speaker 05:
Reconducted review and the amount of time that passed in the interim is what caused the is what caused the problem?

[00:12:13] Speaker 04:
Regardless of whether your facts are sympathetic or not, and we're a court of review, you look at the law.

[00:12:20] Speaker 04:
And I don't see what legal error you're saying, other than that commerce should not have understood that it was bound by the judgment of the CIT.

[00:12:29] Speaker 05:
The standard review here is whether or not, and part of the standard review that we think is relevant is in accordance with law.

[00:12:40] Speaker 05:
Over the course, and you have issued some decisions in this regard,

[00:12:44] Speaker 05:
Part of what's relevant in determining that is not merely the chevron in chevron one and two, but also whether or not the decision is an abuse of discretion, whether or not the decision is arbitrary and capricious.

[00:12:56] Speaker 05:
If it is not, then it is not in accordance with law.

[00:12:59] Speaker 05:
What we're telling you is that we think that this case is one in which the company is, in effect, punished for having won the appeal previously, an appeal that, by the way, as we mentioned in our reply brief, led to

[00:13:13] Speaker 05:
Commerce convincing the Congress to change the law because they wanted more discretion as to whether or not to choose companies to be voluntary respondents or not.

[00:13:21] Speaker 05:
Obviously, this was very important to the Commerce Department.

[00:13:25] Speaker 05:
And they were very angry at us about winning this case.

[00:13:28] Speaker 05:
So the fact is, we think that this is a very good example of capricious, arbitrary and capricious action by the Commerce Department, and therefore is indeed, should be viewed as being not in accordance with law.

[00:13:44] Speaker 03:
Why don't we hear from the government?

[00:13:56] Speaker 00:
Good morning.

[00:13:57] Speaker 01:
Good morning, may I please the court.

[00:13:59] Speaker 01:
So just to clear up a few things, this case does come down to timing.

[00:14:03] Speaker 01:
And as Grobos Council indicated, in December of 2010, that's when the change of ownership occurred.

[00:14:08] Speaker 01:
And then they pursued litigation for two years.

[00:14:11] Speaker 01:
And in GroBest II, the order was issued in approximately July 30, 2012.

[00:14:19] Speaker 01:
And so after that point, GroBest was fully aware that the court had ordered Commerce to individually examine GroBest as a voluntary respondent.

[00:14:30] Speaker 01:
And then it wasn't until final judgment was honored in mid-September, approximately two months later, that the case was essentially, Grobus had received all the relief it could from the court, and it was back under Commerce's regulations.

[00:14:44] Speaker 01:
And then still further, there was an additional month before Commerce issued the initiation notice that it would be individually examining Grobus as a voluntary respondent.

[00:14:52] Speaker 01:
And so even from that time frame you have an additional month.

[00:14:56] Speaker 01:
And so essentially what happened here is that unbeknownst to commerce, Grobus suddenly and inexplicably after about two years of litigation determined that it wouldn't be able to go through the process of individual examination as a voluntary respondent.

[00:15:13] Speaker 01:
and some more importantly, once that initiation notice issued, then Commerce, by its own regulations, was required to treat Grubest as a volunteer respondent, and those are treated in the same manner as the mandatory respondent.

[00:15:27] Speaker 03:
But I thought, didn't the CIT clarify that you did have the discretion, that the Commerce did have the discretion to grant or not grant?

[00:15:37] Speaker 03:
To grant or not grant with... The rescission, request for rescission.

[00:15:39] Speaker 01:
So that gets into

[00:15:42] Speaker 01:
Groves tried to argue that by analogy, the rescission regulation should apply.

[00:15:46] Speaker 01:
And the trial court correctly determined that that's a strained analogy at best.

[00:15:51] Speaker 03:
And the reason why that doesn't apply is that- Yeah, but what does the court of international trade say about whether or not commerce had the authority to grant the rescission if it wished?

[00:16:01] Speaker 01:
That the regulation's not clickable.

[00:16:04] Speaker 02:
And so the regulation that applied- Right, but just to follow up on the chief's question, the way the trade court analyzed

[00:16:11] Speaker 02:
the situation and said, well, there's substantial evidence here supporting the reasonableness of Congress's choice in electing to move forward rather than electing to terminate the review.

[00:16:29] Speaker 02:
So I guess the question I also have is, implicitly, the trade court is saying that there was discretion

[00:16:38] Speaker 02:
here for commerce to back away if it wanted to.

[00:16:42] Speaker 02:
And I don't know if that's the chief's question, but I guess that's my question.

[00:16:46] Speaker 02:
Is it your view, is it the government's view, that in situations like this, after you've accepted a voluntary respondent for an examination, that commerce retains the discretion to shut that down if it sees fit?

[00:17:02] Speaker 01:
I the answer is no and there's a couple reasons knows what yeah no I don't have the discretion no not not in the circumstance when commerce would have had the discretion is that period of time from

[00:17:15] Speaker 01:
the court's order July 30th before the initiation notice.

[00:17:18] Speaker 01:
And at that time, GrowBest could have come to Commerce and potentially talked about settlement or done some kind of change to that, but they never did.

[00:17:27] Speaker 01:
And so they were tardy.

[00:17:28] Speaker 01:
And so once the initiation notice came out and Commerce said that it was going to treat GrowBest as a voluntary respondent, that's under 351.204 D2.

[00:17:36] Speaker 01:
And according to that regulation, voluntary respondents are treated in the same manner as mandatory respondents.

[00:17:44] Speaker 01:
And mandatory respondents can't just pull out reviews.

[00:17:52] Speaker 02:
No, no.

[00:17:54] Speaker 02:
That's, to me, a different question, although very related.

[00:17:58] Speaker 02:
I mean, my question wasn't whether a mandatory respondent or an accepted voluntary respondent ever has the right to unilaterally withdraw.

[00:18:07] Speaker 02:
My question was really more about commerce and commerce's power and authority.

[00:18:11] Speaker 02:
once there is a review initiated, either for a mandatory respondent or a voluntary respondent, are there circumstances in which Commerce, for whatever the case may be, circumstances that it elects and decides to shut down a review before it ever gets to the finish line?

[00:18:31] Speaker 02:
Or is it your view that when it comes to these sorts of matters, Commerce has to push all the way to the finish line regardless?

[00:18:40] Speaker 01:
My view is more of the latter, where part of the commerce is regulated.

[00:18:45] Speaker 01:
Is that the government's view?

[00:18:46] Speaker 01:
That is the government's view.

[00:18:49] Speaker 01:
So the regulations in place just as, and what's a little confusing here is that once the voluntary respondent is accepted, then it is treated as if it is a mandatory respondent.

[00:19:00] Speaker 01:
And so commerce with mandatory respondents and voluntary respondents, if they don't cooperate, which GrowBest did here,

[00:19:07] Speaker 01:
then that's when you go into possibly looking at adverse facts available.

[00:19:11] Speaker 01:
And where commerce could have had discretion, to some extent, was if Grobest had in their responses to the supplemental questionnaires come back and said, you know, for these various reasons, we're having difficulty responding,

[00:19:23] Speaker 01:
And then Commerce could have pursuant to one of its other regulations actually worked with Robest.

[00:19:34] Speaker 01:
And the trial court mentioned that.

[00:19:36] Speaker 01:
And that's 19 USC section 1677M.

[00:19:40] Speaker 01:
But Grobust never told Commerce that it needed to maybe modify what Commerce was asking for.

[00:19:46] Speaker 01:
Instead, Grobust just said, change of ownership, can't do it, please let us out of this, rescind the review.

[00:19:52] Speaker 01:
But what Grobust failed to understand was that the rescission regulation that they were referring to is rescission of the entire review.

[00:20:02] Speaker 01:
So by analogy, Grobust argued before the trial court, and the trial court rejected this argument,

[00:20:07] Speaker 01:
was that you can't apply this rescission regulation, which is at the start of review, and all of a sudden ask, once you've been accepted as a volunteer respondent, to pull out of that review and then still get the rate you would have had before.

[00:20:20] Speaker 01:
And so all of this comes down to the fact that, for years, GrowBest sought in litigation to, instead of receive the 3.76% rate, they wanted to be reviewed because they thought they could get a 0% rate.

[00:20:33] Speaker 01:
Except then once they were actually accepted as a voluntary respondent.

[00:20:37] Speaker 01:
They didn't cooperate The rate was actually corroborated and grow best does not contest the twenty five point seven six percent rate that they received And it all came down to the test that it's punitive against them.

[00:20:50] Speaker 01:
They do argue that it's punitive except

[00:20:54] Speaker 01:
As the trial court correctly noted, commerce can apply adverse facts available if it's in accordance with statutory requirements.

[00:21:03] Speaker 01:
And this court's case concerning that is KYD.

[00:21:09] Speaker 01:
commerce did apply the 25.76 percent rate, which was the all others Vietnam rate that was on the record because robust did not cooperate.

[00:21:21] Speaker 01:
And that's not punitive, more importantly, although robust cites Gallant Ocean, you know, where it's five times the percentage rate.

[00:21:28] Speaker 02:
Sorry, you just said it's the all others rate.

[00:21:30] Speaker 02:
I thought the all others rate in this context was 3.92.

[00:21:34] Speaker 01:
That's the separate rate, and that is the rate that Grobos would have received if it had not pursued the many years of litigation.

[00:21:43] Speaker 01:
But Grobos tries to say that that 25.76% rate is punitive, but again it's not because it was corroborated.

[00:21:51] Speaker 01:
And GRBEST does not contest that that rate was corroborated.

[00:21:54] Speaker 03:
And more importantly... What does it mean corroborated?

[00:21:57] Speaker 03:
How, what, where?

[00:21:58] Speaker 01:
Oh, that there was support in the record.

[00:22:01] Speaker 01:
And they don't contest how that rate was calculated.

[00:22:03] Speaker 01:
So GRBEST isn't saying that that rate is incorrect.

[00:22:07] Speaker 01:
And that is the Vietnam all others rate.

[00:22:10] Speaker 01:
But so what you do have here is...

[00:22:12] Speaker 01:
that essentially Grubest asked for this voluntary respondent status.

[00:22:17] Speaker 01:
The timing turned out to not work in their favor, apparently.

[00:22:21] Speaker 01:
The first time Commerce knew that their voluntary review wouldn't be possible was about two years after they started this litigation.

[00:22:29] Speaker 01:
They filed the first case in December of 2010, and it wasn't until December 2012, where all of a sudden they're coming to Commerce.

[00:22:37] Speaker 03:
What does that matter if maybe

[00:22:40] Speaker 03:
Taking on them at their word that they didn't have the problems that the problems didn't surface until that time.

[00:22:47] Speaker 03:
So If you accept that premise then why are you sort of punishing them for waiting too long?

[00:22:54] Speaker 03:
Are you just saying that the law doesn't allow because of the passage of time for you to go do something else?

[00:23:01] Speaker 01:
The law doesn't allow for the passage of time here

[00:23:04] Speaker 01:
Grovest is arguing that for some reason, the passage of time should be factored into how to apply commerce's regulations.

[00:23:10] Speaker 01:
And again, when it comes to working with Grovest, Grovest never requested commerce to do that.

[00:23:16] Speaker 01:
They just said straight out.

[00:23:18] Speaker 01:
And that's actually in their responses.

[00:23:21] Speaker 01:
And that's in the joint appendix.

[00:23:23] Speaker 01:
The February 13th letter, 2013, is at $32.96.

[00:23:28] Speaker 01:
And then their very first letter, which was December 12th, is at $32.75.

[00:23:32] Speaker 01:
And I'll quote, this is all they were telling Commerce for why they wanted out of this Voluntary Respondent Review.

[00:23:37] Speaker 01:
At 3275, they said, the request to withdraw, we do so due to the significant management personnel and accounting changes that have occurred via EMA since the period of review.

[00:23:49] Speaker 01:
In short, the administrative and legal costs of this examination are greater than the company wishes to incur at this time.

[00:23:56] Speaker 01:
And that was insufficient to even signal to Commerce that they pursue it to, as I mentioned earlier, 19 USC 1677M, that there was some difficulty or somehow wished to cooperate.

[00:24:11] Speaker 01:
And it all comes down to the fact that until Commerce issued the initiation notice in October of 2012,

[00:24:19] Speaker 01:
Grobest could have ended this litigation and could have gone back to that 3.96% rate.

[00:24:25] Speaker 01:
But once Commerce issued that initiation notice, it was back in Commerce's regulations.

[00:24:31] Speaker 01:
And Commerce treated Grobest as a voluntary respondent, which it had sought through litigation to be treated as.

[00:24:36] Speaker 01:
And as part of that, once Grobest failed to cooperate, Commerce ended up applying ads available, which was the higher 25.76% rate.

[00:24:48] Speaker 03:
I'll turn it over to your colleague for three minutes.

[00:25:14] Speaker 00:
May it please the court, my name is Michelle Lee, and I'm here on behalf of Ad Hoc Stream Trade Action Committee.

[00:25:19] Speaker 00:
Today I would like to emphasize one point.

[00:25:22] Speaker 00:
Commerce's decision to decline VA and May's request is fully consistent with the statute, the agency's regulations, and the agency's previous practice.

[00:25:31] Speaker 00:
In accordance with the statute and the regulations, Commerce directly follow its previous practice, as exemplified in certain coral carbon steel flat products from Sweden.

[00:25:43] Speaker 00:
In that proceeding, Commerce refused to allow the withdrawal of voluntary respondents after it had been selected for review, and applied AFA to that respondent after it refused to participate in the proceeding.

[00:25:55] Speaker 00:
VIA made the success of GO-BEST, argues this in reply brief that the Sweden co-roll case can be distinguished on the facts.

[00:26:03] Speaker 00:
VIA made a third step.

[00:26:04] Speaker 00:
Unlike in Sweden co-roll, it was the corporate changes occurring gradually over time that led to its withdrawal for the request

[00:26:12] Speaker 00:
of warranty and respondent status.

[00:26:14] Speaker 00:
But Your Honor, these facts have no basis in the administrative records.

[00:26:18] Speaker 00:
VA and May refuse to answer commerce questions, and VA and May gave no opportunity to the agency to evaluate the explanation now presented.

[00:26:28] Speaker 00:
VA and May cannot now provide expanded as-posed factor reasoning to defend its actions.

[00:26:33] Speaker 00:
Had the VA and May presented this full description during the administrative review, commerce might have considered it.

[00:26:40] Speaker 00:
But commerce might have considered a lot of things.

[00:26:43] Speaker 00:
VA IMA was not the only party to the proceeding.

[00:26:47] Speaker 00:
We asked that VA IMA be subject to administrative review.

[00:26:50] Speaker 00:
That request was never withdrawn.

[00:26:53] Speaker 00:
And when VA IMA refused to respond to commerce request for information, we placed evidence on the records alleging that VA IMA was seeking to avoid answering questions relating to its U.S.

[00:27:05] Speaker 00:
imported affinities.

[00:27:07] Speaker 00:
In this circumstances,

[00:27:09] Speaker 00:
We believe that commerce application of adverse facts available is lawful and entirely appropriate.

[00:27:16] Speaker 00:
Thank you.

[00:27:18] Speaker 05:
Thank you.

[00:27:26] Speaker 05:
Matt Nicely again from VDMA.

[00:27:28] Speaker 05:
I want to draw the court's attention to one very critical part of the final results of the reconducted review, in which the government said

[00:27:37] Speaker 05:
With regard to the domestic producers claim, the department does not have the authority to rescind the review.

[00:27:42] Speaker 05:
This is on page 3378 of our joint appendix.

[00:27:47] Speaker 05:
Does not have the authority to rescind the review of a voluntary respondent once it initiates.

[00:27:53] Speaker 05:
We disagree.

[00:27:55] Speaker 05:
And note that the department previously rescinded the review of voluntary respondents.

[00:28:01] Speaker 05:
In other words,

[00:28:03] Speaker 05:
The Commerce Department itself, today, they're telling you that they don't rescind after initiation.

[00:28:09] Speaker 05:
But they specifically responded to the domestic producers in this case, saying that they did have that ability, and that they had done so in the past.

[00:28:19] Speaker 05:
And they cited to the Honey case.

[00:28:21] Speaker 05:
So the notion that they didn't have the ability to do this merely because they had initiated it is patently false.

[00:28:26] Speaker 05:
They know, and they said in this case, that they had that ability.

[00:28:32] Speaker 05:
There's been discussion about our strained analogy to the relevant portions of the regulations, talking about the balancing test.

[00:28:41] Speaker 05:
Again, I just draw your attention to that.

[00:28:43] Speaker 05:
We recognize that that does not apply specifically to us.

[00:28:46] Speaker 05:
What we're doing is we're using it as an example, given the unique set of facts post-litigation.

[00:28:53] Speaker 05:
The unique set of facts, it is a useful portion of the regulations to see whether or not it is reasonable or not what commerce did in this case.

[00:29:04] Speaker 05:
In our view, given the lack of expenditure of government resources, it would have made perfect sense for them to rescind.

[00:29:12] Speaker 05:
And not just perfect sense, given the facts of the case, it is an abuse of discretion for them to have not done so.

[00:29:19] Speaker 05:
Finally.

[00:29:20] Speaker 02:
At some point, Commerce noted that there were discrepancies in those responses to the questionnaire form that GrowBest had filled out, right?

[00:29:30] Speaker 05:
I'm sorry.

[00:29:31] Speaker 05:
What questionnaires?

[00:29:34] Speaker 05:
In the ones that we had submitted voluntarily during the course of the review?

[00:29:38] Speaker 02:
No, earlier.

[00:29:40] Speaker 02:
Didn't GrowBest fill out some questionnaire and turn it in?

[00:29:44] Speaker 02:
And then when Commerce finally reviewed it, they said, hmm, there's some discrepancies here.

[00:29:50] Speaker 05:
So two very important issues.

[00:29:52] Speaker 05:
Number one, yes, in order to become a voluntary respondent, one of the unfortunate aspects of the law is that you have to go through and actually fill out the entire very long questionnaire response in order to be even considered as a voluntary respondent.

[00:30:06] Speaker 05:
So you fill it out, and you hope that they'll look at it and examine it, which they decided not to.

[00:30:12] Speaker 05:
Then later, after Judge Pogue remanded for them to reconduct the review, and once that was done under the final judgment,

[00:30:20] Speaker 05:
We asked first for the review to be withdrawn.

[00:30:24] Speaker 05:
Not until a month thereafter did they issue a supplemental questionnaire.

[00:30:30] Speaker 05:
At the time we requested it to be withdrawn, we had no idea what supplemental questionnaires they might issue.

[00:30:35] Speaker 05:
It is common.

[00:30:36] Speaker 05:
In fact, I don't know of a single case in which the Commerce Department does not issue supplemental questionnaires to companies that are fully examined.

[00:30:43] Speaker 05:
So it should not have been particularly odd for them to have done so here.

[00:30:50] Speaker 05:
I think I'm over my time.

[00:30:52] Speaker 03:
Thank you.

[00:30:53] Speaker 03:
We thank both sides and the case is submitted.