[00:00:01] Speaker 02:
And that is 2016-12-54.

[00:00:05] Speaker 02:
And Mr. Pickard will lead off as appellant.

[00:00:14] Speaker 05:
Good morning, Your Honors.

[00:00:15] Speaker 05:
Again, the issue in this matter is considerably more straightforward than some of the issues that are connected in regard to the PRC-wide entity rate.

[00:00:30] Speaker 05:
Our contention is relatively... You might wait, I guess.

[00:00:36] Speaker 02:
Sure.

[00:00:37] Speaker 02:
Colleagues would just as soon switch around.

[00:00:42] Speaker 00:
Trying to move around, Your Honor, sorry.

[00:00:44] Speaker 02:
Whatever you're comfortable with.

[00:00:47] Speaker 02:
Please proceed.

[00:00:51] Speaker 05:
Our contention is very straightforward.

[00:00:54] Speaker 05:
We submitted a targeted dumping argument

[00:00:58] Speaker 05:
Under the regulations that were in effect at the time, all legal arguments are required to be in the opening brief.

[00:01:07] Speaker 05:
We included our arguments in the opening brief.

[00:01:12] Speaker 05:
And the department rejected that argument as being untimely.

[00:01:16] Speaker 05:
So our fundamental contention is to submit something by the established timeline and then have it rejected as untimely is inherently unreasonable.

[00:01:27] Speaker 05:
So in defense of its position, the government essentially makes two arguments.

[00:01:32] Speaker 05:
The first is they suggest that there was an established practice in regard to the requirement that these types of arguments would have to be made earlier.

[00:01:45] Speaker 05:
And in regard to their arguments as far as the so-called established practice, they point to three sources, the final modification,

[00:01:55] Speaker 05:
that was published in regard to the new change in methodology.

[00:02:00] Speaker 05:
They point to other prior cases, other prior administrative review cases.

[00:02:06] Speaker 05:
And the third source that they point to is the practice from original investigations.

[00:02:10] Speaker 01:
Okay, so before you get into attacking each one of those separately, even if each one individually might not be enough, why couldn't the three of those things together

[00:02:21] Speaker 01:
along with the limitations on commerce's ability to take extra time to review these proceedings be enough to actually put you on notice?

[00:02:31] Speaker 05:
Sure.

[00:02:33] Speaker 05:
Your Honor, when you put them all together, what you have is either an absence of any express timeline or deadline or explicit statements by the department that there are no timelines.

[00:02:49] Speaker 05:
So what we know is final modification doesn't say anything.

[00:02:52] Speaker 05:
We know the other prior administrative reviews explicitly state there are no timelines for this.

[00:02:58] Speaker 05:
And with the court's indulgence, one sentence from a prior administrative review that was about six months before our case said, quote unquote, the department has not established a deadline for targeted dumping allegations in administrative reviews.

[00:03:15] Speaker 05:
And so it would be unreasonable to reject this allegation as untimely where no such time limit was established.

[00:03:22] Speaker 05:
It's not, if I understand your honor's question, well, maybe if you put all three together, maybe that provides notice, or that could amount to a practice.

[00:03:31] Speaker 05:
If you put all three together, it's either silence on the issue and final modification, or explicitly rejecting the idea of a timeline.

[00:03:39] Speaker 05:
And similarly, so final modification doesn't provide a timeline.

[00:03:46] Speaker 05:
The prior administrative reviews

[00:03:50] Speaker 05:
explicitly reject the timeline and in regard to maybe whether the practice in original investigation should provide notice for administrative reviews, the department itself said that the practice from original investigations in regard to targeted dumping arguments doesn't bear on administrative reviews.

[00:04:12] Speaker 05:
And that's the Turkish pipe case that's cited in our report.

[00:04:15] Speaker 01:
Well, maybe this is just too practical on my part, but if I look at this and I say,

[00:04:20] Speaker 01:
Wow, it's not even clear when I have to file this by.

[00:04:24] Speaker 01:
I'm going to check with Commerce and find out what my deadline is.

[00:04:27] Speaker 01:
Did you ever consider doing that?

[00:04:29] Speaker 05:
No, Your Honor, but I think your question really kind of goes to the heart of one of our arguments.

[00:04:37] Speaker 05:
The regulations are pretty clear where legal arguments need to be made.

[00:04:42] Speaker 05:
If there's any uncertainty, as you were referencing,

[00:04:49] Speaker 05:
The very fact that there would be uncertainty would undermine the government's position that there's an established clear practice.

[00:04:57] Speaker 05:
Let's put it a different way.

[00:04:59] Speaker 05:
What we did is we followed the standard rules of the road that are established by the department, which are very similar to proceedings before this court or any other court.

[00:05:11] Speaker 05:
Facts are collected.

[00:05:12] Speaker 05:
There's an opening brief where the parties make their arguments, which is what we did.

[00:05:17] Speaker 05:
There's an opportunity for a rebuttal brief where the other side puts in their arguments contrary.

[00:05:22] Speaker 05:
There's an opportunity for a hearing, and then the decider of fact issues its decision.

[00:05:29] Speaker 05:
That's exactly what we did.

[00:05:31] Speaker 05:
Here though, our arguments weren't rejected on the merits.

[00:05:35] Speaker 05:
They weren't even considered because they were deemed to be untimely, even though they were included within the timeline that was explicitly provided by the government.

[00:05:49] Speaker 05:
So one other matter.

[00:05:54] Speaker 05:
So there's an explicit regulatory timeline that we met.

[00:05:59] Speaker 05:
There's no established practices the department even set itself.

[00:06:04] Speaker 05:
And then the department basically makes an argument that it would be unduly burdensome to have considered our argument, or our argument was so complex that it was excused from

[00:06:20] Speaker 05:
considering it at that time.

[00:06:24] Speaker 05:
And I would note to begin with that arguments that the government makes in regard to being unduly burdensome are very clever and tricky and could be a trap for repellents in that if you don't respond to the arguments, obviously you could be deemed to have exceeded.

[00:06:43] Speaker 05:
If you get into a factual contention in regard to what you had four months to consider this,

[00:06:49] Speaker 05:
then you leave yourself open to an argument that you're making attempts to dictate to the department how it should allocate its resources.

[00:06:58] Speaker 05:
And that's not what we're doing at all.

[00:07:00] Speaker 05:
What we're doing is our contention is that we obeyed the rules of the road that were established by the department.

[00:07:08] Speaker 05:
The department told us when our case briefs were due.

[00:07:12] Speaker 05:
So after all the factual evidence was collected, we submitted our arguments.

[00:07:17] Speaker 05:
consistent with the timeline, the requirement to include all of our legal arguments, which is in the reg.

[00:07:23] Speaker 05:
And then our case brief was set itself by the department.

[00:07:28] Speaker 01:
What procedural vehicle would way high have had to respond?

[00:07:33] Speaker 05:
The rebuttal brief, which they used, Your Honor.

[00:07:37] Speaker 05:
So we put in an opening brief.

[00:07:39] Speaker 05:
They put in a rebuttal brief, just like we do in proceedings before this court.

[00:07:46] Speaker 05:
If decisions are particularly complicated, the department always has the opportunity to do subsequent briefing or subsequent collection of information.

[00:07:56] Speaker 05:
And that's not just a theoretical issue.

[00:08:00] Speaker 05:
We know, in fact, that they do this.

[00:08:01] Speaker 05:
And how do we know that they do this?

[00:08:03] Speaker 05:
Because they did it in this case.

[00:08:05] Speaker 05:
There was another issue connected with core evaluation.

[00:08:07] Speaker 05:
And after all the briefing was done, they decided that they wanted to look at that issue a little further.

[00:08:11] Speaker 05:
So they solicited additional comments on it.

[00:08:15] Speaker 05:
If this was particularly complex and they wanted additional arguments, they were certainly free to do so.

[00:08:21] Speaker 05:
We're not recommending or arguing that how they should allocate their resources.

[00:08:26] Speaker 05:
What we're saying is it's fundamentally unfair to reject an allegation or arguments which are as untimely, which are included in the very brief or the timeline that's established by the government.

[00:08:40] Speaker 02:
And part of your argument might be that they had a regulation and they withdrew it.

[00:08:46] Speaker 05:
They did, in fact, have a regulation previously in regard to targeted dumping, which they withdrew, which also further supports our case.

[00:08:57] Speaker 05:
So that regulation was removed.

[00:09:00] Speaker 05:
Its explicit statements and other decisions said that there was no explicit earlier timeline in which these arguments needed to be made.

[00:09:12] Speaker 05:
So the only regulation

[00:09:15] Speaker 05:
that remained that was still relevant was the requirement to make all of your legal arguments in your case brief, which is what we did.

[00:09:26] Speaker 05:
So unless there were any additional questions.

[00:09:32] Speaker 02:
We will save your rebuttal time.

[00:09:35] Speaker 08:
Thank you, Your Honor.

[00:09:36] Speaker 02:
And we have a long lineup of appellees who, for one reason or another, have chosen to split their time.

[00:09:44] Speaker 02:
One minute, two minutes, but Mr. Toder has ten.

[00:09:49] Speaker 02:
So we'll begin with Mr. Toder.

[00:09:57] Speaker 06:
Thank you and may it please the court.

[00:09:59] Speaker 06:
With respect to the question of whether there was an explicit deadline stated for targeted dumping allegations in reviews at the time, there was not an explicit deadline stated.

[00:10:11] Speaker 06:
As we stated in the brief,

[00:10:13] Speaker 06:
There were, however, three sources from which there was more than adequate notice of what the department's practice was with respect to handling of these allegations, which involve a lot of data analysis and which

[00:10:28] Speaker 06:
require both parties have the opportunity to comment not only on the allegation but on the results in order for there to be a robust process and that was the reason why it was designed to be done at the preliminary stage rather than at the final case brief stage.

[00:10:45] Speaker 01:
Is it your position that somehow because Commerce in this case announced that it wants it earlier that that's enough to require us to give

[00:10:58] Speaker 01:
deference to commerce with respect to that determination?

[00:11:01] Speaker 06:
Not solely based on a statement in this case.

[00:11:04] Speaker 06:
As we've stated in our briefs, we have three sources.

[00:11:06] Speaker 06:
One is the published Federal Register notice, the final modification on the practice from 2012.

[00:11:12] Speaker 01:
But you could see, I mean, you've said repeatedly that that doesn't give any guidelines for this.

[00:11:17] Speaker 06:
It doesn't for all reviews going forward, but it does say that the reason why we're going to, I think it was 60 days after the effective date, was so that everyone would have the opportunity to comment

[00:11:26] Speaker 06:
on the methodology prior to the final reviews in those particular investigations, which emphasizes that, in fact, it is important for people to have the opportunity to comment on preliminary results prior to final results.

[00:11:42] Speaker 06:
So that shows that, at least in that particular subset, that Congress felt that that was important.

[00:11:49] Speaker 01:
But again, it's not a subset that covers this circuit.

[00:11:52] Speaker 06:
This case is not in that subset, no.

[00:11:54] Speaker 06:
Right.

[00:11:54] Speaker 06:
But it shows that the commerce is practiced, which again is in parallel with the process for investigations.

[00:12:00] Speaker 06:
In investigations, there's an explicit statute saying you have to file your targeted dumping allegation by that point, or there was at the time.

[00:12:06] Speaker 06:
The practice has changed now.

[00:12:08] Speaker 06:
But at the time, there was a statute that said you have to file your targeted dumping allegation, I think it was 45 days.

[00:12:13] Speaker 01:
And to the extent that you want anyone to read anything into that final notification, you have said after that, that it doesn't apply to these circumstances.

[00:12:21] Speaker 06:
It didn't apply in this case in terms of a deadline from the final modification explicitly applying here.

[00:12:29] Speaker 06:
We're not saying that there was an explicit deadline that was stated.

[00:12:31] Speaker 06:
We're saying that this was part of the set of information that gave adequate notice that

[00:12:36] Speaker 06:
The time to make a targeted dumping allegation which requires both sides to be coming in on a lot of data issues is at the preliminary stage so that you can comment on the department's preliminary results in your case briefs so that you don't have a post final results and things could just stretch on forever.

[00:12:54] Speaker 06:
There has to be some kind of administrative finality and because of the data intensive nature of the targeted dumping analysis, that's why that structure was set up.

[00:13:04] Speaker 06:
with respect to the two administrative determinations, there's one from cellulose from Finland, one from pipe from Turkey.

[00:13:12] Speaker 06:
Appellants say, well those cases were cases where they got them before the preliminary determination, they accepted them, so that doesn't say anything to what would happen if they got them after the preliminary results.

[00:13:26] Speaker 06:
That's not quite right.

[00:13:27] Speaker 06:
The question there in those two determinations was

[00:13:30] Speaker 06:
the number of days before the preliminary results was arguably less than the number of days before you would have to have filed your targeted dumping allegation under the statute for an investigation.

[00:13:44] Speaker 06:
So if you're 15 days, I think it was, in the Turkey case before the preliminary results, was that still acceptable?

[00:13:51] Speaker 06:
Even though you would have had to have filed it, I think, 45 days before the preliminary determination if we were in the context

[00:13:58] Speaker 01:
In the Turkey case, Commerce expressly stated when the department recently announced it would consider whether to use an alternative comparison method in administrative reviews on a case by case basis, the announcement contained no guidelines on the filing of a request to apply an alternative comparison method.

[00:14:16] Speaker 01:
So why actually did those cases not actually support the opposite result?

[00:14:22] Speaker 06:
Well, the reason they were accepting the targeted dump allegations that were filed when they were was because they were before the preliminary results were published.

[00:14:32] Speaker 01:
But the fact that it expressly stated

[00:14:35] Speaker 01:
that we had no guidelines?

[00:14:37] Speaker 06:
We have no guidelines?

[00:14:38] Speaker 06:
Well, those cases, now that those cases are out there, now they do provide.

[00:14:43] Speaker 01:
They do provide guidance.

[00:14:44] Speaker 06:
There was nothing before those cases, and now there is.

[00:14:46] Speaker 01:
We're going to accept these, because it would be a reasonable not to accept these.

[00:14:49] Speaker 01:
But you don't say it's unreasonable not to accept.

[00:14:53] Speaker 01:
You don't say it wouldn't be unreasonable not to accept something later than that.

[00:14:57] Speaker 06:
Well, they said it would be reasonable because we got them before the preliminary results in the absence of any other guidance having been given in other context

[00:15:06] Speaker 06:
However, now these cases are out there.

[00:15:09] Speaker 06:
They give guidance that, yes, commerce looks very carefully at the question of whether something was filed before the preliminary results and deciding whether to take a targeted dumping allegation.

[00:15:19] Speaker 06:
Those provide two data points that were not out there previously.

[00:15:24] Speaker 06:
Third,

[00:15:26] Speaker 06:
source of information was commerce's practice from investigations, where, again, it was by statute that you had to make the allegation before the preliminary determination was issued.

[00:15:36] Speaker 06:
But again, insofar as commerce's practice is to follow the average to average in the reviews as it does from the investigations, unless there's a reason for departure.

[00:15:47] Speaker 06:
Again, if you're looking at from the perspective of, OK, commerce needs

[00:15:53] Speaker 06:
to have their allegations made before the preliminary results in order to depart from average to average for determinations.

[00:16:00] Speaker 06:
That doesn't automatically mean it should be the opposite in the context of results, absent some affirmative indication to the contrary.

[00:16:08] Speaker 06:
And there is no affirmative indication to the contrary.

[00:16:11] Speaker 06:
At best, they're saying that commerce hasn't explicitly said

[00:16:14] Speaker 06:
we're going to do the same thing and result in reviews that we did for investigations.

[00:16:19] Speaker 06:
But there's no reason to say Commerce has said we're not going to do the same thing that we did for investigations.

[00:16:24] Speaker 01:
Can you point to me exactly where in those cases Commerce said the reason we are concluding that we should accept these is because it was before the preliminary results?

[00:16:37] Speaker 07:
In those words.

[00:16:40] Speaker 01:
I didn't see that in either of those cases.

[00:16:48] Speaker 06:
Well, we cite on page 23 of our brief in the footnote, we make note of the number of days and the opportunity to comment on the post-preliminary results.

[00:16:58] Speaker 01:
That's actually in your footnote about the reality of the timing if you want to go back, if you want to look back and justify it after the fact.

[00:17:07] Speaker 01:
But there's nothing in those cases that says this is why we concluded that it was reasonable in these cases.

[00:17:19] Speaker 06:
I'd have to look at the cases to see if there's anything more explicit.

[00:17:24] Speaker 06:
I don't have anything more explicit than that to point you to at this point, although the fact that there was the opportunity to comment on the post-preliminary results goes to the point we're making here, which is that because this is a data-intensive analysis, commerce set it up so that people would have the opportunity to comment on the results, not just the allegations.

[00:17:44] Speaker 06:
Here, the appellants are saying, no harm, no foul to the respondents because they have the opportunity to respond in their case briefs to our allegation.

[00:17:52] Speaker 06:
That's not what Commerce was doing in these prior reviews in the welded pipe from Turkey and the cellulose from Finland.

[00:17:59] Speaker 06:
They were giving parties the opportunity to comment on Commerce's analysis and their results before the final.

[00:18:05] Speaker 03:
Am I remembering right that in the Turkey case, Commerce didn't give

[00:18:11] Speaker 03:
its analysis of this issue in the preliminary results, but in a post-preliminary.

[00:18:16] Speaker 03:
Yes, post-preliminary.

[00:18:17] Speaker 03:
So why couldn't you have done the same thing here?

[00:18:19] Speaker 03:
Well, we couldn't do it here because they raised the allegations first time.

[00:18:23] Speaker 03:
A post-case brief result.

[00:18:25] Speaker 03:
And then you would do the same thing.

[00:18:29] Speaker 03:
Case briefs are before final results.

[00:18:30] Speaker 06:
They're not before post-preliminary.

[00:18:33] Speaker 03:
You can add a step, right?

[00:18:35] Speaker 06:
You'd have to add a post-final, which is kind of an oxymoron.

[00:18:42] Speaker 06:
The idea is commerce isn't obligated to keep on setting up a ping pong process where it can just go on forever.

[00:18:48] Speaker 06:
I mean, there has to be administrative finality at some point.

[00:18:51] Speaker 03:
What is the legal standard, arbitrary and capricious, or what under which we are to judge whether what commerce did here in saying too late is reversible?

[00:19:03] Speaker 03:
I believe that would be arbitrary and capricious standard.

[00:19:05] Speaker 03:
That doesn't apply to this proceeding, does it?

[00:19:09] Speaker 06:
Well, the decision whether to take it, I mean, the ultimate decision is whether commerce's determination is supported by, you know, substantial evidence and otherwise not in accordance with law.

[00:19:21] Speaker 03:
I'm not sure this is an evidence question.

[00:19:23] Speaker 03:
I don't... Yeah, on the question of whether commerce improperly chose not to take... So what law do you think they're saying this is not in accordance with?

[00:19:37] Speaker 06:
It was unclear which law they were saying it was not in accordance with, so it's hard to... I don't know if I have a more robust answer to the court's question.

[00:19:49] Speaker 02:
All right.

[00:19:52] Speaker 02:
Mr. Hoder, thank you very much.

[00:19:53] Speaker 02:
I think Mr. DeLine is it?

[00:19:56] Speaker 07:
Yes.

[00:19:58] Speaker 07:
Yes, Your Honor.

[00:20:00] Speaker 02:
You talk fast.

[00:20:00] Speaker 07:
I will talk fast, Your Honor.

[00:20:02] Speaker 07:
I have 60 seconds.

[00:20:03] Speaker 07:
To pick up on Judge Sharonto's question,

[00:20:07] Speaker 07:
Which law are we talking about?

[00:20:08] Speaker 07:
Your honor, the law does not dictate how commerce shall conduct targeted dumping allegations or how it shall conduct its proceedings with regard to 1677 and F-1.

[00:20:19] Speaker 07:
It's left to commerce's discretion.

[00:20:22] Speaker 07:
And here, getting back to Judge O'Malley's questions about whether there was adequate notice, I'd like to draw more of a straight line than I think what we've heard.

[00:20:30] Speaker 07:
We've sort of heard scattershot.

[00:20:32] Speaker 07:
Going back all the way to 2007,

[00:20:35] Speaker 07:
when Commerce was making a change in their investigations practice.

[00:20:39] Speaker 07:
Commerce had rejected a petitioner's allegation for being untimely filed when they filed it late in their case brief.

[00:20:46] Speaker 07:
So starting in 2007, that was the case.

[00:20:49] Speaker 07:
And of course, that was under the old targeted dumping regulation, which required it to be 30 days before the date of the prelim.

[00:20:56] Speaker 07:
However, Commerce withdrew the allegation in 2008.

[00:20:59] Speaker 07:
Yet every single domestic industry and investigations was still following

[00:21:03] Speaker 07:
the 30 days before the prelim to make its allegations.

[00:21:06] Speaker 07:
And then Commerce in 2012, before the prelim in this case, announced that it was going to be following the exact same procedures as it had in investigations.

[00:21:18] Speaker 07:
In fact, in their final modification, they said they will be examining the same criteria the Department examines in original investigations.

[00:21:24] Speaker 07:
One of those criteria is, did the domestic industry make out the allegation required for

[00:21:30] Speaker 07:
finding targeted dumping.

[00:21:31] Speaker 07:
And so with that, I've exceeded my 60 seconds.

[00:21:33] Speaker 07:
But thank you for the court's indulgence.

[00:21:35] Speaker 02:
Thank you, Mr. Veline.

[00:21:36] Speaker 02:
Mr. Schutzman?

[00:21:41] Speaker 04:
May it please the court.

[00:21:42] Speaker 04:
I'll speak almost as quickly.

[00:21:47] Speaker 04:
Judge O'Malley, you asked, where does it say that the allegation had to be made prior to the preliminary determination?

[00:21:54] Speaker 04:
And it doesn't say that.

[00:21:56] Speaker 04:
Nowhere does it say that.

[00:21:59] Speaker 04:
Your question regarding the combination of factors and the evidence of the three or four different items in combination certainly is sufficient notice to the petitioner that the allegation has to be made prior to the preliminary, or if not, it does so at its peril.

[00:22:21] Speaker 04:
The purpose of the case brief is not to raise allegations that have not been raised before.

[00:22:26] Speaker 04:
The purpose of the case brief is to discuss

[00:22:29] Speaker 04:
department's preliminary determination.

[00:22:32] Speaker 04:
It's always been that way.

[00:22:34] Speaker 04:
And so that's one of the reasons why Commerce wants this allegation made before the preliminary.

[00:22:42] Speaker 04:
In certain cases we've seen, the allegation was made very close to the preliminary determination, such that the Commerce department was unable to make the determination at the preliminary.

[00:22:55] Speaker 04:
And what it did, because it felt it had sufficient time

[00:22:59] Speaker 04:
it conducted a post-preliminary analysis of targeted dumping.

[00:23:02] Speaker 04:
We saw that in two cases that have been cited in the briefs.

[00:23:05] Speaker 04:
And commerce specifically left this issue flexible because anti-dumping administrative reviews require that kind of flexibility.

[00:23:22] Speaker 04:
There's nothing to say that if Petitioner had filed its targeted dumping allegation

[00:23:30] Speaker 04:
one day after the preliminary, or two days after the preliminary, that commerce would not have accepted it.

[00:23:37] Speaker 04:
In fact, if you look at the final determination, commerce kind of says that.

[00:23:44] Speaker 04:
And let me just quote from it.

[00:23:46] Speaker 04:
Given the elapsed time between the issuance of respondents questionnaire responses and the issuance of the preliminary determination, we find that the petitioner had ample opportunity to have filed its

[00:23:58] Speaker 04:
targeted dumping allegation prior to the date of the preliminary and certainly prior to its case brief.

[00:24:07] Speaker 04:
So the petitioner waited going on three months after the preliminary to file it.

[00:24:12] Speaker 04:
And Commerce at that point said, sorry, fellas, too late.

[00:24:16] Speaker 04:
But it's possible, I suppose, given the flexibility the Commerce Department wants to have with administrative reviews, that that might have happened.

[00:24:26] Speaker 04:
It's just that this one came too late.

[00:24:28] Speaker 04:
And that was the decision.

[00:24:29] Speaker 04:
That's the crux of this decision.

[00:24:30] Speaker 02:
Thank you, Mr. Schritzman.

[00:24:32] Speaker 02:
We have your position.

[00:24:34] Speaker 02:
Mr. Menegas has one minute.

[00:24:38] Speaker 08:
Good morning, Your Honors.

[00:24:39] Speaker 08:
Maybe to follow up on that point, the petitioner should have known this is an extremely complicated allegation that they're making.

[00:24:47] Speaker 08:
It's not a simple math situation, as they've portrayed in their brief.

[00:24:52] Speaker 08:
It's a complex allegation that merits a response of complex law and facts from the respondent.

[00:24:58] Speaker 08:
It's more similar to a critical circumstances allegation or sales below cost allegations.

[00:25:03] Speaker 08:
They're all required to be made before the prelim.

[00:25:05] Speaker 08:
The prelim can only be made with a closed record.

[00:25:09] Speaker 08:
And their allegation came way beyond the point where the record would have had to remain open for the respondents to have a chance, a real chance to rebut.

[00:25:17] Speaker 08:
They can't add new facts in rebuttal brief.

[00:25:19] Speaker 08:
And so it's wildly inappropriate that they raised it.

[00:25:22] Speaker 01:
Given the very flexibility we were just talking about that commerce maintains, commerce could have reopened.

[00:25:28] Speaker 08:
Theoretically, but that's in exceptional cases.

[00:25:32] Speaker 08:
Once in a while, they'll do a post-preliminary result and then let the case brief happen, but the record has to be closed before the case briefs are filed.

[00:25:42] Speaker 08:
In other words, they didn't make the allegation in time for Commerce to issue us questionnaires, give us a chance to rebut the targeted dumping allegations.

[00:25:50] Speaker 08:
It's not you press a button in SAS and voila, there's targeted dumping.

[00:25:54] Speaker 08:
We have all kinds of fact and legal-based

[00:25:56] Speaker 08:
rebuttals to a targeted dumping allegation.

[00:25:59] Speaker 08:
And they've been subject to mounds and mounds of litigation at the CIT and potentially before the panel.

[00:26:07] Speaker 08:
It's a very complex set of law and facts, as we pointed out on page 10 of our response brief, where commerce and the remand re-determination explain this.

[00:26:15] Speaker 08:
It's not simple.

[00:26:16] Speaker 08:
Push a button in SAS and say yes or no to this formula.

[00:26:19] Speaker 08:
And we also address, Judge Toronto, the legal standard at page 10 of our response brief

[00:26:24] Speaker 08:
The court will only overturn the interpretation if plainly erroneous or inconsistent with regulations and procedures.

[00:26:31] Speaker 08:
So it's an incredibly high standard the petitioners have here, and they should have known that this was in the class of the other types of allegations that are required to make before the prelim so the department can investigate them and give the respondents a chance to add facts to the record before it's closed at the prelim.

[00:26:46] Speaker 02:
Thank you, Mr. Menegas.

[00:26:47] Speaker 02:
Thank you very much.

[00:26:48] Speaker 02:
Adding cleanup is Mr. Neely.

[00:26:54] Speaker 00:
Very quickly, I want to address an issue which is the same in this case as it was in the prior one that we just talked about.

[00:27:01] Speaker 00:
That's basically a cross appeal.

[00:27:03] Speaker 00:
Yes, correct, your honor.

[00:27:05] Speaker 00:
And it's an issue that was raised by Judge O'Malley about we made a statement in this case and in the prior one that we are the only company in China that produces diamond saw blades.

[00:27:19] Speaker 00:
And we're not related to anybody that is government related.

[00:27:22] Speaker 00:
And what does commerce do then?

[00:27:25] Speaker 00:
And the answer from the statute and from the case law is they have two choices.

[00:27:31] Speaker 00:
They can either ask questions or they can accept the statement.

[00:27:35] Speaker 00:
And in terms of asking further questions, I just refer the court to 19 USC 1677MD.

[00:27:42] Speaker 00:
Thank you.

[00:27:43] Speaker 02:
Thank you.

[00:27:44] Speaker 02:
And Mr. Neely, Mr. Pickard has a little rebuttal time.

[00:27:54] Speaker 05:
Good morning, Your Honor.

[00:27:55] Speaker 05:
Just a few quick points.

[00:27:59] Speaker 05:
In essence, and to paraphrase loosely, the arguments that you've heard from Epolis are essentially that we should have known that there was a deadline even though commerce was telling everyone there was no deadline.

[00:28:12] Speaker 05:
That strikes me as fundamentally unreasonable.

[00:28:16] Speaker 03:
Where's the reasonableness standard under which that would be a sufficient ground to... Going back to your previous question.

[00:28:23] Speaker 03:
We don't have general APA arbitrary capriciousness review here.

[00:28:28] Speaker 05:
I believe you do have a general APA... Statute to substantial evidence not in accordance with law.

[00:28:32] Speaker 05:
Substantial evidence or otherwise contrary to law.

[00:28:34] Speaker 05:
And contrary to law also incorporates concepts of unreasonable decision making acting in an arbitrary capricious manner.

[00:28:42] Speaker 05:
So the department's decision

[00:28:44] Speaker 05:
to deem something as untimely when it comports with the timeline, we would suggest is otherwise contrary to law because it is either unreasonable, undergone from this court, or just amounts to arbitrary and capricious decision making, Your Honor.

[00:29:04] Speaker 05:
I would make one or two other minor points.

[00:29:08] Speaker 05:
There were some references in regard to how complex

[00:29:14] Speaker 05:
These are from a data perspective.

[00:29:17] Speaker 05:
And I think this is a minor point, but I think it's of some importance that the government concedes now these allegations are done automatically.

[00:29:29] Speaker 05:
They're automatically part of the government's program, and it is essentially done at the push of a finger.

[00:29:36] Speaker 05:
And the government does it across the board, sua sponte.

[00:29:41] Speaker 05:
And the government essentially concedes this on, I believe it's page eight and nine of their brief, the footnote at the bottom.

[00:29:48] Speaker 05:
So the idea that this would be somehow too intensive to do is a bit of a canard in that now it's done automatically in every investigation, and it's a standard part of the department's program.

[00:30:03] Speaker 05:
That being said, I just want to come back to the basic contention here.

[00:30:11] Speaker 05:
The department said not just once, but in two different cases, that there were no deadlines.

[00:30:20] Speaker 05:
And to your question, Judge Malley, nowhere in those decisions does it say there are no deadlines as long as it's before the preliminary determination.

[00:30:30] Speaker 05:
It's not caveated.

[00:30:32] Speaker 05:
There's no qualification or limitation in those decisions on their face.

[00:30:42] Speaker 05:
nor was there any notification by the department in this particular case that there was an obligation to provide our allegations earlier.

[00:30:49] Speaker 05:
So maybe just to recap, what we're asking this court to do, the department clearly could have evaluated our case, our arguments, and found them not to be persuasive or to be lacking in merit.

[00:31:05] Speaker 05:
But what was improper,

[00:31:07] Speaker 05:
was for them not to even consider the merit of our cases when they were timely submitted.

[00:31:12] Speaker 05:
And here we know they were timely submitted because they were done within the timeline that was required under the regulations and there was no practice to the contrary.

[00:31:21] Speaker 05:
So what we're asking this court to do, please, is to remand the matter back so that the department can run its standard program to incorporate

[00:31:30] Speaker 05:
our basic argument that there was targeted dumping going on in this case.

[00:31:34] Speaker 03:
There was a point made, I think, by one of the lawyers who stood up for such a brief period, I barely remember, about how this is a matter on which the record could reasonably be viewed as having to be reopened had you made this allegation.

[00:31:52] Speaker 03:
This is not just legal argument about closed record, but if you made some targeted dumping allegation in your

[00:32:00] Speaker 03:
case brief, they would have been entitled to say, oh, there's actually more facts that we didn't need to put in, didn't put in, now we need to.

[00:32:09] Speaker 03:
Can you address that?

[00:32:10] Speaker 05:
Yeah, sure.

[00:32:10] Speaker 05:
I think they're just factually incorrect, Your Honor.

[00:32:14] Speaker 05:
The evidence of record was collected.

[00:32:16] Speaker 05:
We suggested that a methodology should be applied to the data that had been collected.

[00:32:22] Speaker 05:
There were no new facts included in our allegation.

[00:32:25] Speaker 05:
Nor would any new facts be needed to be added to the record to evaluate our basic argument.

[00:32:34] Speaker 05:
It was a legal argument in regard to the methodology that should be applied.

[00:32:40] Speaker 03:
I think if I remember right, one of the things that lawyer said was something about different questions would be asked if there were an allegation of

[00:32:53] Speaker 03:
And again, I think that's just factually incorrect, Your Honor.

[00:32:57] Speaker 05:
If you look at even the department's current practice, it's done automatically in the program.

[00:33:02] Speaker 05:
So it's essentially a macro.

[00:33:07] Speaker 05:
It's a subpart of the program where it's automatically evaluated on the facts that they're established.

[00:33:14] Speaker 05:
No additional data would need to be collected.

[00:33:16] Speaker 05:
And nor are we asking for the record to be reopened in this case.

[00:33:21] Speaker 05:
merely to have our argument evaluated, and if it's found to be meritorious, to apply that methodology.

[00:33:31] Speaker 02:
Thank you, Mr. Picard, and thanks to all counsel for a thoroughly argued case.

[00:33:36] Speaker 02:
We'll take it under advisement.