[00:00:00] Speaker 07:
Next case for argument is 161649 Maverick II Corporation versus United States.

[00:00:10] Speaker 07:
And as the parties well know, we've divided this up based on the two issues.

[00:00:16] Speaker 07:
So the first issue, those arguing the first issue, you know who you are.

[00:00:44] Speaker 06:
Whenever you're ready.

[00:01:11] Speaker 07:
Miss Mendoza?

[00:01:13] Speaker 06:
May I please the court?

[00:01:14] Speaker 06:
Julie Mendoza, appearing on behalf of defendant appellant Borisan Manesman.

[00:01:20] Speaker 06:
In this case, Congress should never have resorted to adverse facts available.

[00:01:25] Speaker 06:
Borisan fully cooperated with Congress's investigation and confirmed explicitly that it would supply any information that Congress demanded.

[00:01:34] Speaker 06:
In other words, the facts of this case are completely different from the facts in the other cases cited by the party.

[00:01:41] Speaker 06:
where this court has affirmed an adverse facts available.

[00:01:46] Speaker 06:
Borasine never claimed the information did not exist and then produced it as a nip-on.

[00:01:52] Speaker 06:
Borasine did not provide false information or incorrect information.

[00:01:57] Speaker 06:
And it did exactly the opposite of what respondent did to her champion.

[00:02:03] Speaker 06:
It replied to the department's questionnaire and told the department that it fully intended to cooperate

[00:02:10] Speaker 06:
This court articulated in the case of Nippon Steel versus US that it was appropriate for commerce to apply facts available, in other words, neutral facts available.

[00:02:20] Speaker 07:
Well, did your client ever say to the government that it was unable to submit the required data, that it didn't have the resources to compile the missing data, or anything of that sort?

[00:02:31] Speaker 06:
Your Honor, our client did say it was unable to, and I would submit that the definition of unable is defined in

[00:02:40] Speaker 06:
1677 and C, which says that unable means that there is a burden on the respondent to provide such information and that Congress can have due consideration of that fact and provide for relief from such an unreasonable burden.

[00:03:02] Speaker 06:
So I would suggest that the regulation itself defines unable not as impossible.

[00:03:10] Speaker 06:
but rather as presenting an unreasonable burden on the respondent to provide the information.

[00:03:19] Speaker 02:
Isn't that a fact question of a court to which we defer?

[00:03:26] Speaker 06:
Your Honor, I believe that in this particular case, there are some very important facts, one being that Borisan offered specifically to provide the information if Congress needed it.

[00:03:39] Speaker 06:
In other words, Orison believed that the department did not need the information because it was with respect to production facilities of non-subject product.

[00:03:48] Speaker 06:
And therefore, from the date of its original questionnaire, Orison stated it was perplexed as to why the department needed the information.

[00:03:56] Speaker 06:
And it explained the enormous burden that it would entail in providing all of that information.

[00:04:03] Speaker 06:
But at the same time, in its supplemental questionnaire, it was very clear that to the extent that

[00:04:08] Speaker 06:
Borisan had misapprehended the department's questionnaire, and in fact we don't believe we did, that if we had misapprehended it and it was not an invitation to explain exactly why that burden was so great and was unable to do so, then it stood willing and prepared to provide any information that the department required.

[00:04:29] Speaker 03:
So you refer to, I think, the language of 1677, MC.

[00:04:34] Speaker 03:
I read that to say, if

[00:04:37] Speaker 03:
the recipient of the request is actually unable to submit it in the form requested, then you can tell that to commerce and commerce can say submit it in a different form and in figuring out what the different form is will take account of burden, but that does not mean that it is enough to say we are able but it would be very burdensome.

[00:04:59] Speaker 06:
Well, Your Honor, I believe that the language concerning unable to submit the information... In the requested form.

[00:05:09] Speaker 06:
Right, in the requested form and manner, together with a full explanation, okay?

[00:05:14] Speaker 06:
So it's a full explanation of why you're unable to do it.

[00:05:18] Speaker 06:
And then the Commerce Department is required to consider your ability to do so.

[00:05:24] Speaker 06:
In other words, it's

[00:05:25] Speaker 06:
been the practice of the department that to the extent that parties present information as to why something would be extremely difficult to do, that the Commerce Department has often taken that into account and either excused the reporting or required them to present it in a way they proposed.

[00:05:44] Speaker 06:
Now in our particular case, there was, where Congress had asked us to report, and we had for the Gemlich Mill that produced subject merchandise,

[00:05:52] Speaker 06:
every single invoice and every single line item on an invoice for an entire year for all the purchases of that plant, Borisan was very aware that that's the form in which commerce required the information.

[00:06:05] Speaker 06:
It was that, in fact, that was so difficult to do and certainly there was no suggestion that Borisan could have provided some sort of summary information or half information and certainly Borisan wasn't... But did Borisan say

[00:06:20] Speaker 03:
We've got these other plants, they're ours.

[00:06:23] Speaker 03:
We cannot provide for those, is it two other plants?

[00:06:27] Speaker 02:
Yes.

[00:06:27] Speaker 03:
Two other plants the same information in the same form that we just provided for the one plant.

[00:06:35] Speaker 06:
Your Honor, no.

[00:06:36] Speaker 06:
Boracen never said it was impossible.

[00:06:38] Speaker 06:
In fact, it was quite clear to the department from our original response that it was not impossible.

[00:06:45] Speaker 06:
We said that it was extremely burdensome.

[00:06:47] Speaker 06:
Therefore, when the department came back in its supplemental questionnaire and said, okay, we've read your response, you said that you provided it to them with milk and so please provide the information for the other mills or explain why you were unable to do so and then the reasons for that, which is exactly what Orison did in response.

[00:07:11] Speaker 07:
Let me understand what happened.

[00:07:13] Speaker 07:
So the government, you say we can't do this, this is terrible, whatever.

[00:07:16] Speaker 07:
And then the government comes back and says, no, you've got to do this.

[00:07:21] Speaker 07:
And they say, any undue delay or lack of response may result in our proceeding with information based on the facts available.

[00:07:28] Speaker 07:
And what did you do in response to that?

[00:07:30] Speaker 06:
Your Honor, I would just suggest that the full supplemental questionnaire and facts said, please, we read your questionnaire.

[00:07:39] Speaker 06:
You've provided information for Gamelin.

[00:07:41] Speaker 06:
Please provide information for the remainder of the mills or

[00:07:46] Speaker 06:
explain why you weren't able to provide that information and detail the reasons.

[00:07:51] Speaker 06:
So Commerce actually asked Orison, I mean, we believed rationally, reasonably, at the time of receiving that supplemental questionnaire, the department had read our original response, which was very clear that it was not possible, rather extremely difficult.

[00:08:08] Speaker 06:
And therefore, when the department responded with a supplemental questionnaire where it said, either give the information or explain why you are unable to do so, we reasonably believed that the department had recognized the problems that we were encountering and was asking us to provide the information with respect to why it was impossible.

[00:08:26] Speaker 06:
Not impossible, I'm sorry, Your Honor.

[00:08:28] Speaker 06:
Why it was not why we were unable to do so.

[00:08:31] Speaker 06:
And so I think that given that context, in other words, given the context that when Congress came back in the supplemental questionnaire, they already knew that it was not impossible but merely very difficult and said to us, please explain why you are unable to do so.

[00:08:47] Speaker 06:
To us, as practitioners in the area, unable to do so does not mean impossibility.

[00:08:51] Speaker 06:
It means that it's reasonably burdensome and unreasonably burdensome.

[00:08:57] Speaker 06:
And for that reason, we believe that we had a legitimate basis

[00:09:02] Speaker 06:
Given that this was information with respect to plants that didn't produce subject merchandise, benefits to plants that did not have any subject merchandise, that it was appropriate for us in those circumstances to explain it to Commerce.

[00:09:16] Speaker 06:
But if we were misapprehending the department's question and we didn't fully respond, we made very clear that we were prepared to provide the information should Commerce ask us for it.

[00:09:28] Speaker 06:
And I think given those circumstances and given the fact that four and a half months transpired between the date of that response and Commerce's post-preliminary determination, that Commerce could have asked us, it would have been a simple matter to say to us, no, you must provide the information, at which point we said we were willing to do so.

[00:09:51] Speaker 07:
Okay.

[00:09:51] Speaker 07:
Why don't you, you're into your rebuttal time so why don't you save that and we'll hear from the other side.

[00:09:59] Speaker 07:
And you all are dividing the time up seven and three, correct?

[00:10:05] Speaker 07:
We'll run the clock separately for each of you.

[00:10:15] Speaker 01:
Good morning.

[00:10:16] Speaker 01:
May I please support?

[00:10:18] Speaker 07:
Why is your friend not right?

[00:10:21] Speaker 07:
There's a lot of communication going back and forth, and there are lengthy forums and questionnaires.

[00:10:26] Speaker 07:
So maybe there was a misunderstanding

[00:10:29] Speaker 07:
understanding here as to whether or not some lines have been crossed.

[00:10:36] Speaker 07:
But at the end of the day, my understanding is when Morrison responded to the supplemental questionnaire, it continued to maintain it was burdensome, et cetera.

[00:10:46] Speaker 07:
But it also said, but we stand ready to provide the information with the understanding that it will require several weeks to do so.

[00:10:54] Speaker 07:
So why didn't somebody say, okay, you've got till

[00:10:57] Speaker 07:
whatever day, get us the information.

[00:10:59] Speaker 07:
And that could have resolved the whole matter, right?

[00:11:02] Speaker 01:
Well, Congress was under no obligation to provide that third opportunity to Boris Johnson.

[00:11:06] Speaker 01:
Congress clearly, from the original questionnaire, continuing on to the supplemental questionnaire, made it very clear that we are requesting the information for all your mills, including the two mills that Boris Johnson did not provide the information for.

[00:11:19] Speaker 01:
Boris Johnson never stated that he was unable to provide that information.

[00:11:25] Speaker 01:
Today, they argue it in the brief.

[00:11:26] Speaker 01:
They argue that they did state so.

[00:11:29] Speaker 01:
Unable means unable.

[00:11:30] Speaker 01:
You cannot.

[00:11:30] Speaker 01:
It means you lack the means to apply.

[00:11:32] Speaker 01:
Well, Ms.

[00:11:32] Speaker 03:
Mendoza says, and I think this is right at the heart of her pitch, that in this world, in practice, everybody knows that unable is a much softer concept and commerce so treats it.

[00:11:45] Speaker 03:
What do you say to that?

[00:11:48] Speaker 01:
I'm not sure I'm saying we mean unable is a softer concept.

[00:11:51] Speaker 03:
Right, that unable doesn't mean we can't do it.

[00:11:54] Speaker 03:
It means it would be really, really, really burdensome.

[00:11:56] Speaker 03:
And commerce regularly says, oh, OK, that's fine.

[00:11:59] Speaker 03:
We'll redefine.

[00:12:00] Speaker 03:
Is that true as a matter of practice?

[00:12:02] Speaker 01:
Unable means you cannot.

[00:12:04] Speaker 01:
It does not mean impossible.

[00:12:05] Speaker 01:
I don't think that term is open to interpretation.

[00:12:07] Speaker 07:
But aren't there circumstances where somebody would come back to you and say, look, can you please re-evaluate if you really need all this stuff because it's going to take us

[00:12:16] Speaker 07:
a year, and here's why, and $10 million to be able to retrieve this data.

[00:12:22] Speaker 07:
Doesn't commerce consider that?

[00:12:24] Speaker 01:
Certainly.

[00:12:24] Speaker 01:
Under the statute under 1677 MC, parties have, they can go to commerce and say, we're having difficulties in supplying information in the manner you requested.

[00:12:37] Speaker 01:
But they have to do so promptly.

[00:12:38] Speaker 01:
Once they receive a request from commerce, they have to promptly go back to commerce and say, we can't submit it in the requested form.

[00:12:45] Speaker 01:
And then they have to suggest all these things.

[00:12:47] Speaker 03:
I'm sorry, 1677 M.C.

[00:12:48] Speaker 03:
Where does it say that you can go and say, we're able to do it, but it's difficult?

[00:12:53] Speaker 01:
No, no, that we're unable.

[00:12:54] Speaker 01:
I'm sorry.

[00:12:55] Speaker 01:
That you have to go back promptly to commerce and say, we are unable to submit the information in the manner that you've requested.

[00:13:03] Speaker 03:
So let me just ask again so you're understanding what I'm saying.

[00:13:08] Speaker 03:
Let me posit for purposes of this question that you are 100% correct about the ordinary meaning of the word unable.

[00:13:16] Speaker 03:
Put that aside.

[00:13:17] Speaker 03:
Is it true or not true, as a matter of practice, that people come to commerce and say, this is very difficult, and commerce says, oh, okay, we'll figure out a less burdensome way to do it?

[00:13:33] Speaker 01:
Yes.

[00:13:35] Speaker 03:
Under what?

[00:13:36] Speaker 03:
Under 1677 and C. But if that's true, it seems to me you've just conceded

[00:13:42] Speaker 03:
that the word unable in 1677 MC does not mean impossible to do.

[00:13:48] Speaker 03:
It can include very burdensome.

[00:13:51] Speaker 01:
No, parties can do that under that statutory provision.

[00:13:55] Speaker 01:
Why?

[00:13:56] Speaker 01:
Because they're unable to provide the information in the manner requested.

[00:13:59] Speaker 01:
I think you have to read the statutory provision together.

[00:14:01] Speaker 01:
And it also says you have to provide... I kind of think you're giving away your case here.

[00:14:06] Speaker 01:
You have to provide alternative forms

[00:14:09] Speaker 01:
in how you can submit information.

[00:14:11] Speaker 03:
Even if all they say, if they say in terms, we're able to do this, but it's very difficult.

[00:14:16] Speaker 01:
No, no, no.

[00:14:18] Speaker 01:
You have to be unable to submit the information.

[00:14:21] Speaker 01:
For whatever reason it is, and you can explain why, but you have to be unable to submit the information.

[00:14:26] Speaker 01:
That's what the statutory provision provides.

[00:14:28] Speaker 03:
But you apply that provision, do you, even if it's not impossible, but

[00:14:34] Speaker 03:
It's merely very, very difficult.

[00:14:37] Speaker 03:
And so as a matter of practice, you interpret the word unable in 1677 MC to include great burden?

[00:14:45] Speaker 01:
No.

[00:14:46] Speaker 01:
Unable is unable.

[00:14:48] Speaker 01:
You cannot provide that information.

[00:14:50] Speaker 07:
I don't have the exact thing here, but doesn't 1677 MC start off, doesn't the C say describe difficulties in meeting requirements?

[00:15:01] Speaker 07:
That's the title.

[00:15:02] Speaker 07:
That's the title.

[00:15:03] Speaker 07:
So doesn't that suggest difficulties in meeting, I mean, doesn't that suggest that there's some give there, that it's difficult?

[00:15:13] Speaker 07:
Being difficult and being impossible are two very different things, right?

[00:15:16] Speaker 07:
And the title of the subsection is difficulties.

[00:15:20] Speaker 01:
The title is, but when you read the statutory provision, it's saying unable to submit the information that's requested.

[00:15:27] Speaker 03:
In the form requested, then you can consider other forms, and in the course of defining what the other forms are, you can consider difficulties.

[00:15:36] Speaker 01:
Correct.

[00:15:37] Speaker 01:
And that's even, even that's discretionary.

[00:15:39] Speaker 01:
Commerce may modify the requirements.

[00:15:41] Speaker 01:
So even that's a discretionary part of commerce to whatever they're going to.

[00:15:45] Speaker 01:
And here, let's step back.

[00:15:47] Speaker 01:
BORUS have never even complied with these statutory provisions.

[00:15:50] Speaker 01:
It waited until a supplemental response, the due date when the supplemental response was due, to say, we can provide it, but we're experiencing burden somewhere, and that's when they signed to that statutory provision.

[00:16:04] Speaker 01:
That's not promptly.

[00:16:05] Speaker 01:
They also did not give, they never stated they were unable to, they didn't act promptly, and they also did not

[00:16:12] Speaker 01:
suggested alternative forms of providing the information for those two mills.

[00:16:17] Speaker 07:
They just simply stated... But at the end of the day, they did say, okay, if we haven't persuaded you that this is burdensome enough, we'll provide it in two weeks.

[00:16:25] Speaker 07:
So an alternative would have been... Commerce had the authority to call them up and say, okay, it's due by such and such a date, right?

[00:16:34] Speaker 01:
Did Commerce have the discretion?

[00:16:36] Speaker 01:
Sure.

[00:16:36] Speaker 01:
But Commerce also had discretion not to do that, which is what it did here.

[00:16:39] Speaker 01:
There was no legal requirement for Commerce to

[00:16:41] Speaker 01:
go back to them yet again.

[00:16:43] Speaker 01:
They specifically did not respond to Congress's requests twice.

[00:16:48] Speaker 01:
They didn't respond, they did not give that information, and the numbers said they were unable to give the information.

[00:16:53] Speaker 01:
And based on that, Congress properly found that they failed to act to the best of their ability.

[00:16:59] Speaker 01:
They didn't put forth their maximum efforts.

[00:17:01] Speaker 01:
They also didn't ask for an extension.

[00:17:04] Speaker 01:
They could have done that.

[00:17:05] Speaker 01:
They could have said, you know what, we can provide this to you.

[00:17:08] Speaker 01:
Spirit and Summon everything we can provide it to you.

[00:17:10] Speaker 01:
We need additional time.

[00:17:11] Speaker 01:
They didn't even do that at all.

[00:17:13] Speaker 01:
They didn't ask for an extension.

[00:17:14] Speaker 01:
They didn't say they were unable to do it.

[00:17:16] Speaker 01:
They didn't submit the information.

[00:17:19] Speaker 01:
And they didn't act promptly or suggest alternative forms.

[00:17:22] Speaker 01:
So for us on board, the full responsibility here in how this played out for the company.

[00:17:27] Speaker 01:
OK.

[00:17:27] Speaker 01:
Thank you.

[00:17:42] Speaker 05:
Can you please the court?

[00:17:43] Speaker 05:
My name is Kelsey Wuhl, appearing today on behalf of Cross Appellate to U.S.

[00:17:47] Speaker 05:
Steel and Maverick.

[00:17:48] Speaker 05:
Briefly, I'd like to address the most important aspect of the AFA issue, which is the best of its ability standard in Section 1677E.

[00:17:56] Speaker 05:
Borisond's interpretation of the standard would allow responding parties to stall investigations by arguing each point of Congress's questionnaires.

[00:18:05] Speaker 05:
Borisond claims that it acted to the best of its ability to comply with Congress's request in two ways.

[00:18:10] Speaker 05:
First, by providing a legal argument that the information commerce requested was not necessary to the investigation.

[00:18:18] Speaker 05:
And second, by indicating that it could provide the requested information in due course if commerce disagreed with this legal argument.

[00:18:28] Speaker 05:
Borson fully understood commerce's request and by its own admission the requested information was in its custody.

[00:18:34] Speaker 03:
What specifically did Borson say about

[00:18:37] Speaker 03:
the burden of collecting this information at that point.

[00:18:42] Speaker 05:
About the difficulties that Borisan faced in gathering the data, which is at pages 6 and 7 of its opening brief, Borisan here claims it was an unreasonable burden to report the purchase data in the manner requested because of how it was stored in two separate systems.

[00:18:57] Speaker 05:
However, nothing prevented Borisan from providing the data from the two systems in its raw form and then describing to commerce how to reconcile it.

[00:19:06] Speaker 05:
This would have been an imperfect response, but it would have been usable, timely, verifiable.

[00:19:12] Speaker 05:
And under section 1677M subparagraph E, Congress would have been obligated to use that information, and we wouldn't be talking about adverse inferences.

[00:19:21] Speaker 05:
Now, the court's conduct falls far short of the best of its ability standard articulated by this court in Nippon Steel.

[00:19:29] Speaker 05:
Setting aside for a moment the fact that Borson's legal argument misapplied Commerce's attribution regulation, and I refer the court to page 58 of the appendix for that, it's entirely inappropriate for a responding party to raise legal arguments in a questionnaire response in lieu of providing the requested information.

[00:19:47] Speaker 05:
And this is for two primary reasons.

[00:19:51] Speaker 05:
First, at this stage in the investigation, Commerce was still building the administrative record.

[00:19:56] Speaker 05:
Borson's response asked Commerce to weigh the probative value of information that was not before it.

[00:20:02] Speaker 05:
Essentially, Borson turned the investigation on its head by prejudging the counteravailability of its own subsidies and using that as an excuse to withhold information from the record.

[00:20:14] Speaker 05:
Second, and most relevant to petitioners, Borson's unwillingness to provide the requested information until after Commerce considered its legal arguments,

[00:20:23] Speaker 05:
decry the other interested parties of the opportunity to review and comment on the relevance of that information.

[00:20:30] Speaker 07:
Thank you.

[00:20:30] Speaker 07:
Thank you.

[00:20:35] Speaker 07:
You have three minutes left, Ms.

[00:20:36] Speaker 07:
Mendez.

[00:20:37] Speaker 07:
Sorry.

[00:20:42] Speaker 06:
I would just like to address three main points.

[00:20:45] Speaker 06:
First of all, the statutory provision is

[00:20:49] Speaker 06:
entitled difficulties and I would suggest that the department has admitted that its practice is to consider the ability of the respondent to provide the information and not simply that the respondent is required to submit a statement that says it's impossible to provide this information.

[00:21:06] Speaker 06:
So the department has admitted and in fact it is their practice to consider such requests.

[00:21:11] Speaker 06:
Secondly,

[00:21:14] Speaker 07:
At most, if they've admitted anything, it's that there's some discretion there, but then their discretion is dictated by the circumstances of the case.

[00:21:23] Speaker 07:
And as they describe it here, you had plenty of chances and your information was insufficient.

[00:21:30] Speaker 07:
So in the exercise of that discretion, they said, no, too little, too late.

[00:21:35] Speaker 06:
And we believe that what sets this case clearly apart from any other case is the fact that we so clearly indicated our willingness to do so.

[00:21:44] Speaker 07:
And the fact is that the department... Is this the final thing in response to the supplemental question?

[00:21:50] Speaker 06:
Yes.

[00:21:51] Speaker 07:
And I think their response would be too little, too late.

[00:21:55] Speaker 06:
But Your Honor, I would suggest that what the department generally argues in these cases is that it is administratively impossible for them, due to their tight time deadlines, to do such a thing as to request this information.

[00:22:10] Speaker 06:
And I would suggest to you that

[00:22:12] Speaker 06:
consideration didn't exist at all in this case.

[00:22:14] Speaker 06:
The department gave itself a four and a half month extension to decide this very issue and therefore had sufficient time.

[00:22:22] Speaker 06:
And it is the obligation of the department to try to seek the most accurate information possible.

[00:22:27] Speaker 06:
And what purpose was served in this case by applying facts available to Boris on

[00:22:32] Speaker 06:
It didn't need to be forced to respond.

[00:22:35] Speaker 06:
Borisan said it would respond.

[00:22:37] Speaker 06:
And there was no issue that Borisan somehow was advantaged by not responding to the questionnaire.

[00:22:42] Speaker 06:
And therefore, under the circumstances of this case, there was no basis, no reason for the department to have applied adverse facts available.

[00:22:50] Speaker 06:
There was no purpose there.

[00:22:52] Speaker 06:
By doing so, all they had to do was to ask Borisan to provide the information, which they did not.

[00:22:59] Speaker 06:
Thank you.

[00:22:59] Speaker 07:
Thank you.

[00:23:02] Speaker 07:
That concludes the argument with respect to what we've designated as part one of this case.

[00:23:08] Speaker 07:
And I guess we've got a relatively new cast of characters for part two.

[00:23:13] Speaker 07:
It's Ms.

[00:23:23] Speaker 07:
Mendoza's.

[00:23:24] Speaker 07:
Ms.

[00:23:24] Speaker 07:
Mendoza, you can stay where you are, but where's Mr. Leonard, who's arguing on

[00:23:29] Speaker 07:
Okay, so we're set, even though it's confusing to us.

[00:23:35] Speaker 07:
All right, and then you are Mr. Great, okay.

[00:23:49] Speaker 07:
So you've got a total of 10, we're gonna run your clock at seven.

[00:23:52] Speaker 04:
May it please the court

[00:23:56] Speaker 04:
Robert DeFranchesco on behalf of Cross of Helens and Abertooth and U.S.

[00:24:00] Speaker 04:
Steel.

[00:24:01] Speaker 04:
I'm going to discuss today the issue of the benchmark analysis in the Department of Original Determination and whether they should use a Tier 1 or Tier 2 benchmark in measuring adequacy of remuneration with respect to hot oil steel.

[00:24:15] Speaker 04:
We believe the Court of International Trade improperly disregarded important aspects of the Department's Original Determination

[00:24:22] Speaker 04:
And on this point, it substituted its judgment for that of the agencies.

[00:24:27] Speaker 04:
And as such, we believe this court should reinstate Commerce's original determination that the hot road zero market in Turkey is distorted through government intervention and through government action.

[00:24:38] Speaker 04:
In the original investigation, the Department of Commerce determined that at a minimum, the Turkish hot road market, that there's a significant amount of government intervention through the government entity.

[00:24:50] Speaker 04:
But it could also be a majority of that portion of the market.

[00:24:53] Speaker 04:
And given the fails in the record, the department was forced to interpret the record as it stood before it and apply facts available.

[00:25:02] Speaker 04:
And because of the lack of information that the Turkish government didn't supply, the amount of hot wheel steel production for all of the hot wheel steel participants, the Turkish hot wheel steel participants,

[00:25:16] Speaker 04:
The Department of Commerce wasn't able to accurately determine whether it was a majority or a substantial portion.

[00:25:21] Speaker 04:
And it said, based on the facts in front of it, the admission that it was that the Turkish entities that were government-controlled were at least a majority.

[00:25:30] Speaker 02:
Looking at the formalities, we look through the Court of International Trade to Commerce.

[00:25:36] Speaker 02:
And we're reviewing Commerce's second determination, albeit perhaps coerced, rather than its first one, right?

[00:25:46] Speaker 04:
Well, I posit, Your Honor, we are arguing that the first Court of International Trade determination regaining it back to Commerce was flawed.

[00:25:54] Speaker 04:
And at that point, when it came back to the Court of International Trade, the Department of Commerce made that determination under protest, but complied with what it believed the Court was asking it to do.

[00:26:05] Speaker 04:
And we would posit that the first determination by the Court of International Trade was an error on that issue.

[00:26:11] Speaker 07:
Does it matter in these cases in differentiating between tier one and tier two, whether the government seems to have a good reason for not?

[00:26:20] Speaker 07:
I don't want to get into a discussion of the word unable again.

[00:26:23] Speaker 07:
But whether the government really just says, we've got the data, but you can't have it, or whether the government has a reason for not being able to provide it?

[00:26:33] Speaker 04:
That's a good question, Your Honor.

[00:26:35] Speaker 04:
In this case, the government of Turkey

[00:26:39] Speaker 04:
They simply said, we're providing you with the flat rolled market, which is much broader than simply the hot rolled market.

[00:26:47] Speaker 04:
We've made arguments in our group, both at below and here, that that should have amounted to an adverse inference here.

[00:26:55] Speaker 04:
The Department of Commerce didn't make an adverse inference.

[00:26:58] Speaker 04:
We think you can still reach the information on the facts available, that the Turkish government could have supplied that information.

[00:27:06] Speaker 04:
and should have supplied that information.

[00:27:08] Speaker 04:
They supplied that information in previous cases or cases after this one.

[00:27:12] Speaker 04:
And in fact, at the Department of Commerce's hearing, one of the attorneys for the Turkish respondents admitted that had the department done verification on this issue, that they could have supplied that information.

[00:27:24] Speaker 07:
So that's what I'm just trying to figure out.

[00:27:26] Speaker 07:
I mean, it's not one side or the other.

[00:27:29] Speaker 07:
the ability or the ease with which the government could do it or not do it plays into it.

[00:27:34] Speaker 07:
Does that play at all into a differentiation between tier one and tier two?

[00:27:38] Speaker 04:
No, I think it plays into whether they would apply an adverse inference with respect to whether it was a majority or a substantial portion, which would dictate whether it was tier one or tier two, but not necessarily whether they could comply or not.

[00:27:53] Speaker 04:
I understand your honest question.

[00:27:55] Speaker 03:
You don't think that that

[00:27:58] Speaker 03:
In making a determination whether the amount of the foreign government sales is adversely affecting, i.e.

[00:28:08] Speaker 03:
lowering, the price of non-government sellers in that foreign country, it is relevant to consider what other information might be available and is not being supplied.

[00:28:22] Speaker 03:
Because it doesn't make sense simply as an economic matter to say,

[00:28:27] Speaker 03:
that a simple percentage without more automatically means that the non-government sales have been improperly damaged.

[00:28:36] Speaker 04:
So two points, Your Honor.

[00:28:39] Speaker 04:
The department's preamble talks about if there is a majority, it then will normally determine that it is, in fact, distorted.

[00:28:47] Speaker 04:
If it's something less than majority but a significant portion in certain circumstances, it may also find that it's distorted.

[00:28:55] Speaker 03:
kind of switchback sentence with something and then unless, and then it's not the clear standard.

[00:29:02] Speaker 04:
Now, the department's practice has been, in these instances, on occasion they will look at other factors.

[00:29:10] Speaker 04:
But the other factors they will look at is not exhaustive, and they've looked at other types of factors in the past.

[00:29:16] Speaker 04:
In this case, the department was unable to look at those other factors because some of that evidence was not supplied by the Turkish government.

[00:29:25] Speaker 03:
And the CIT said in the first round, we read these pages of your opinion, the 95-14 to 20 or something, as sounding an awful lot like you're saying, because the number was somewhere north of 25% multiplying 50 by 50, then we will per se, in this case, without considering more,

[00:29:51] Speaker 03:
um, find a adverse dampening of the non-government sellers' prices in Turkey.

[00:29:58] Speaker 03:
And that that really didn't seem quite right under this sentence in the preamble.

[00:30:03] Speaker 03:
So go and explain again, why was it not entitled to do that?

[00:30:09] Speaker 03:
It wasn't even conclusively resolving the issue.

[00:30:11] Speaker 04:
Because that analysis that the court applied, which was that it's assuming 25 and 25, right?

[00:30:20] Speaker 04:
That assumes that it's not a majority.

[00:30:22] Speaker 04:
It couldn't have been a majority.

[00:30:23] Speaker 04:
It's assuming that the proportion, that the word majority in this case was 50% of domestic production.

[00:30:29] Speaker 04:
It could have been 60.

[00:30:30] Speaker 04:
It could have been 70.

[00:30:31] Speaker 04:
It could have been 80.

[00:30:33] Speaker 04:
It could have been 90.

[00:30:34] Speaker 04:
We don't know because the Turkish government didn't supply the full amount of production and shipment data by the other Turkish producers in this instance.

[00:30:42] Speaker 04:
So the Court of International Trade, by coming to that conclusion, was improperly plugging facts that the Department of Commerce, in its original determination, said it didn't have.

[00:30:52] Speaker 04:
The Department of Commerce said, I don't have this information available to me.

[00:30:55] Speaker 04:
And based on the facts available, I can conclude that it is a majority of a majority, and that it is disorderive.

[00:31:02] Speaker 04:
That the information I requested wasn't made available, and the information with respect to other factors wasn't made available to me either.

[00:31:08] Speaker 04:
And that this is the best information I have in front of me.

[00:31:13] Speaker 07:
We'll keep you a rebuttal time.

[00:31:16] Speaker 07:
Ms.

[00:31:16] Speaker 07:
Mendoza, you've got seven minutes, and your colleague has three.

[00:31:23] Speaker 06:
First of all, I would like, Your Honor, to clarify an important fact in this case, which is that the government of Turkey stated that it did not have the hot world coil information with respect to the market share of the individual companies in Turkey.

[00:31:39] Speaker 06:
Commerce found no reason

[00:31:41] Speaker 06:
found no reason and no evidence that that was not a correct statement.

[00:31:46] Speaker 06:
In fact, the department even responded to our argument about why they had not conducted verification by explicitly saying that they accepted the government of Turkey's statements as true and accurate.

[00:32:01] Speaker 06:
And that statement was, we don't have the data on the hot world coal market shares.

[00:32:08] Speaker 06:
Therefore, while the department in its remand

[00:32:11] Speaker 06:
make some assertions that somehow the Turkish government might have had the information and it might have been to their benefit not to provide it, the facts of the case don't support that.

[00:32:23] Speaker 06:
And while the government has not filed a brief in this case because it has not appealed this decision, if you look at their comments in response to petitioners' arguments in the remand, you will see that the Department very clearly says that there's no evidence in the record to contradict the government of Turkey's statement that it did not have this information.

[00:32:41] Speaker 06:
Therefore, this entire appeal is premised on an incorrect assumption, which is that somehow there was information out there that the department did not have and could not use.

[00:32:52] Speaker 06:
When, in fact, the department had the very information with respect to market share that it had gleaned from various sources, it used that market share information in its remand, and it proved that, in fact, Erdemir and Izumir did not have a majority share.

[00:33:08] Speaker 06:
Well, the department originally chose to go forward with the information with respect to a majority of the majority.

[00:33:15] Speaker 06:
They clearly also had that other information available.

[00:33:19] Speaker 06:
But the critical point here is that the department accepted.

[00:33:24] Speaker 06:
There was no contrary evidence that the government of Turkey did not have this information.

[00:33:29] Speaker 06:
Now, the court's finding in Nipah that if a party doesn't have the information,

[00:33:33] Speaker 06:
that's required, then by definition it's unable to provide the information, and therefore that's the end of the inquiry.

[00:33:40] Speaker 06:
To the extent that the plaintiff is now claiming that somehow the department should have looked at other evidence here, there's no support in the record for that finding.

[00:33:52] Speaker 06:
And finally, I would just like to say that all of petitioners' arguments about the errors in the decision-making by the court

[00:34:00] Speaker 06:
relate to this issue of facts available.

[00:34:03] Speaker 06:
In other words, their argument is basically because the government of Turkey did not cooperate and provide the information required, not supported by the record, therefore the court should have given commerce a pass, essentially.

[00:34:16] Speaker 06:
It should have applied a less stringent standard, and it should have accepted the department's assertions that a majority of the majority was sufficient.

[00:34:25] Speaker 06:
And I would just submit that there is no basis, in fact, for that argument.

[00:34:29] Speaker 06:
There is no factual basis for that argument.

[00:34:31] Speaker 06:
And therefore, all of Plano's arguments must be dismissed.

[00:34:34] Speaker 06:
Thank you.

[00:34:44] Speaker 00:
Thank you.

[00:34:45] Speaker 00:
I'd like to support Mark Lennar on behalf of Tojilic and Jiroba, who are two Turkish producers of oil country tubular goods.

[00:34:53] Speaker 00:
I just wanted to address the math argument that we made in our brief.

[00:34:58] Speaker 00:
My friend over here said that the business goes to market share.

[00:35:02] Speaker 00:
And the Department of Commerce's statement that the government of Turkey accounted for at least a substantial portion.

[00:35:13] Speaker 00:
And the arguments by the parties that it might have been, or there's a possibility that it was a majority.

[00:35:18] Speaker 00:
And that's maybe justifying a per se application of the rule

[00:35:24] Speaker 00:
And my colleague here, my friend over here, said that the government of Turkey could have accounted for 60% or 70% or 80% or 90% of the record.

[00:35:32] Speaker 00:
But the math simply says that's not true.

[00:35:36] Speaker 00:
Information on the record and the commerce in its remand properly concluded that simple arithmetic undermined the argument.

[00:35:47] Speaker 00:
There are three types of parties here with relevant data.

[00:35:52] Speaker 00:
Erdemir, which is the government of Turkey proxy there, other Turkish producers and imported volume.

[00:36:03] Speaker 00:
And the record contains information about Erdemir's production volume.

[00:36:10] Speaker 00:
It also contains information about my client's production and also the other Turkish producers, all of them.

[00:36:17] Speaker 00:
There are only five.

[00:36:21] Speaker 03:
Internet and not just the capacity information of the production of others.

[00:36:25] Speaker 00:
There is also capacity information.

[00:36:26] Speaker 00:
Of the five, there's production information known for three and capacity of two.

[00:36:32] Speaker 03:
In fact, there was a chart that showed the capacity for all five, stable from 2012 to 2017.

[00:36:39] Speaker 00:
Right, there is a chart and there are two types of numbers that we put into our brief.

[00:36:43] Speaker 00:
One was a reasonable estimate of the actual production.

[00:36:47] Speaker 00:
And with our reasonable estimate of the actual production of the two that the actual production numbers are not available, then Erdemir was less than 40%.

[00:36:59] Speaker 00:
But even without those, assuming, which we would say is an unreasonable assumption, that those two plants were idled for 12 months, Erdemir is still less than 50% of the market.

[00:37:09] Speaker 00:
And so any significance that

[00:37:14] Speaker 00:
The government below or the parties that have given to the at least language or arguing that there's a possibility is simply undermined by math.

[00:37:27] Speaker 00:
If there are no questions.

[00:37:29] Speaker 07:
Thank you.

[00:37:38] Speaker 04:
Thank you, Your Honor.

[00:37:39] Speaker 04:
Just a few quick points.

[00:37:42] Speaker 04:
In a previous determination by the Department of Commerce a year earlier, in the case of stainless steel sinks, the department was presented with almost the identical set of facts, where the government of China provided data on market share on an overly broad category, not on the category that they were looking at.

[00:38:00] Speaker 04:
The Department of Commerce looked at that information, and there was evidence in the record where there was a discussion about whether they were a majority.

[00:38:08] Speaker 04:
The Department of Commerce said,

[00:38:09] Speaker 04:
At a minimum, they are a substantial portion.

[00:38:12] Speaker 04:
And therefore, we're going to find on the facts available that the market is distorted.

[00:38:18] Speaker 04:
And they didn't look to necessarily other factors, because there weren't any other factors on the record.

[00:38:23] Speaker 04:
And they relied on that decision.

[00:38:25] Speaker 04:
With respect to the math issue, we take issue with how they're calculating the math for a couple of different reasons.

[00:38:32] Speaker 04:
One, the two that are missing, one of those two producers

[00:38:39] Speaker 04:
put a new hot mill in the year that we're looking at.

[00:38:43] Speaker 04:
And there's no evidence that they were actually producing.

[00:38:47] Speaker 04:
If they were, it would have been minimal because they were just ramping up.

[00:38:51] Speaker 04:
One.

[00:38:51] Speaker 04:
Two, you still don't have information on the second one.

[00:38:55] Speaker 04:
And the import statistics that they put on the record appear to be over-inclusive because it's covering a broad category that includes more than just hot roll coil.

[00:39:03] Speaker 04:
We've raised this in our brief, and it's in our brief there.

[00:39:08] Speaker 04:
And the Department of Commerce recognizes this in its remand determination when it says, we're uncomfortable doing this comparison because these appear to be disparate sources of data where we're maybe comparing apples and oranges.

[00:39:20] Speaker 04:
And again, going back to the math, where you do have production information from the two Turkish entities that are state-owned, which is a group, when you compare the capacity utilization rates from the two different data sources, they're wildly different.

[00:39:35] Speaker 04:
So they appear to be coming from

[00:39:36] Speaker 04:
different data sources and possibly being reported on different bases, which, again, supports the department's determination on the remand when it said, we're being forced to compare apples and oranges here because these don't appear to be accurate.

[00:39:50] Speaker 04:
But the court wanted us to go back and take a look at this, and so they did.

[00:39:53] Speaker 04:
We believe that's why their original determination, which follows the same analysis in stainless steel sinks, which was viewed earlier, to say, based on the evidence we have in front of us, this is an imperfect record.

[00:40:06] Speaker 04:
we're going to find that it is at least a substantial portion, and therefore, distortive.

[00:40:11] Speaker 04:
And that's all I have, unless Your Honor has other questions.

[00:40:14] Speaker 07:
Thank you.

[00:40:14] Speaker 07:
We thank all sides, and the case is submitted.