may please the court for the record my name is nancy noonan i'm from aaron fox i've got my colleague frederick morgan counsel table with me we represent the plaintiff a power because the u s inc this case is about the u s department of commerce's calculation of to your knowledge get it translated to my knowledge no one got a translator certainly was never put on the record as being translated i mean i find this entire exercise to be unusual i have seldom seen the c i t strongarm commerce as much as they did here and i'm not sure what to make of the two paragraphs that are translated  whether commerce has the discretion to decide what to do with the document in a case like that i mean we have so many cases commerce has the authority to use best available information they have so many rights and describe so much discretion to choose what data that they're willing to rely on and not when a foreign entity submits a document that's not entirely translated it's hard for me to imagine that i'm the best person to decide whether the untranslated part is important or not or whether commerce ought to be able to disregard  notoriously don't translate it we don't care just using the c i t v of them no choice no choice come completely agree and just to back up a little bit on the timing of the whole case because i think that that goes to the reasonableness of congress actions in that they're really have submitted a full translation and i don't mean when they submitted the document because they allege that there was an administrative error oversight in on translating at the portion could they is there any opportunity through any of this process where they could have made a motion to supplement the record with such evidence is there any anything in the procedures before commerce that allow them to make such a motion and i do think the timing is very relevant your honor  there what i what i was asking you was is you haven't answered my question at all i know you really want to go through this timing for some reason but i really want to answer my question which is is there any mechanism within this process which went on for so many years  and so much ink was spent over these two paragraphs of untranslated material was there is there any mechanism within this process at any point in time whereby hussein could have made a motion to supplement their filing with the translated paragraphs i don't believe so in the sense that the record was closed that february nd two thousand and thirteen record went through frame put this financial statement and they make a motion to reopen the record is there any mechanism for something like i mean i think that's exactly what they tried to do at the port of national trade for all of those remaining proceedings is to say to the court a court why don't you allow allow commerce to reopen the record otherwise i think it's in congress its discretion whether to reopen the record and solicit this information it's our perspective that doesn't i just what i'm trying to understand i think is the same thing judge moore is trying to understand is who failing is the one that came forward with this document this from edition documents yes your honor and now something is telling us well it was an oversight that this one piece relatively small piece of the document didn't get translated and so you would think they would be the ones assuming that it really doesn't have anything material in that content would be motivated to try to supplement that translation so it would provide a complete one to the of congress could fully evaluate documents and so what i'm trying to figure out now is to what extent is there anything in the record that shows something seeking to supplement the translation to correct what it says was an oversight and i believe your honor and i'm sure they they may have a different perspective but the record was close so in the case briefs which were just a few weeks after that document came on the record was when both the other chinese respondent and pointed out in the case prepaid this is not a fully translated financial statement but don't worry you've got a fully trained translated financial statement on the record in the form of a gentle moto commerce said you're right it's not really translated we don't find it reliable we're going to use the edge in a moto financial statement and that's what happened then throwing appeals said and the courts have to trade again even initially isn't saying to the commerce you have to it's just like the date isn't translated is it your view that commerce is whether is it discretion or the right to choose to reject any document that is not fully translated or do they have to make some analysis like evolved in the various c i t remey and about whether or not the likelihood that the man translated information is some help vital to an assessment of the validity of the data i think i think in the context of financial statements for a surrogate value submission which is what was going on here commerce has a lot of discretion they're using the best available information they're looking at the other financial statements that are are on the record and are fully translated and then they're looking at will what is missing you know financial no twelve which was an enterable part of the financial statement every single page of the financial statements said that the notes are an integral part yet somehow this language was missing this language informs commerce as to the meaning of the numbers that were in the table the numbers are meaningful because that relates to depreciation and goes into the actual surrogate value ratio again maybe try to listen my question is maybe it's because my questions are too long so i'll make it really short do you think congress has the discretion to simply reject it without giving a reason or do you think commerce has to make an assessment of whether or not the non translated material appeals appears to have some vital importance because congress is initially just said we're rejecting it and said he said not good enough you have to explain why it's vital or you know why you think it might be vital or whatever and so i guess my question to you is what should the legal standard be should comers have the discretion to reject it without giving a reason or should commerce have to articulate a bases for rejecting it based on some assessment of how vital it is by the way i find it hard to imagine that you could assess whether it's vital or but knowing what it says but none apart from that there does appear to be some precedent not binding precedent but some precedent in which commerce has made assessments of whether material appears to be vital or not so you see the thing there's there's two different  didn't cry from shorter i didn't get shorter sorry forgot longer yeah but there's like you there's two different things we could possibly do here consistent with what your client would wish but i'm wondering which of those two right here would you prefer commerce has an absolute question unfettered discretion or congress has to determine they think it might be vital before they decide to exclude it well i mean commerce is regulations do require foreign language documents to be fully translated  at the risk of coming back a year later and arguing something differently to you i do think congress does have discretion but i do think there is something unique about the financial statements which again is the circuit value fund put my hand full of financial statements  record a number of them were fully translated so in this particular case through all the various rebounds we do have and that alice's from commerce explaining why it believed that the missing materials from the some that understand the scope and meaning of the dot but you know you're going to hear from the we're going to hear from the other side pretty soon saying well that's still not good enough you don't just look at a document conclude that there's a flaw in that document and then knocked out the document because what's really needed is a comparative analysis what we have here are two defective documents competing documents defective in different ways we know about the agenda  document that is infected with subsidies and so that in its own way has a flaw and now we have this document the fermentation document that has a chunk of it that isn't translated so we don't know what it says with respect to depreciation ok assuming that i think what the trade court wanted is for commerce to explain and articulate why the a law document under these circumstances is the better information available than this document with the incomplete translation and so to what extent do you think number one commerce actually did that and number two whether commerce needs to versus just blindly without looking at the genum otoh documents say to it self right well st i think the court i think ultimately we're most focused on that rd remain the court's rd decision where they reminded it back and and they did the court did say something about the comparison but then the court gave an alternative where it said or you could just tell us why you think this is vital why this missing information was vital and that is exactly what congress did in its rd re man determination so i it's my the alternative do apples to apples comparison or d in the alternative you like not doing a helpful apples comparison please just explain to the in some detail why the missing information is so vital in europe paragraphs and footnote twelve are vital to the department's analysis of the data to be clear the problem that except the truism that any misinformation it may be vital rather congress must pacifically discuss what is missing  statements and how the fact of the missing information impedes the department's calculations which i believe congress then spent three plus pages of their remaining determination explaining exactly that depreciation is important we can see on the face of these documents there's  narrative that informs these numbers the schedule that's included in the depreciation so i mean again we were completely shocked at the th judgment by the court because we felt that congress had completely complied with the  were here in the in the alternative but production that go into the subject merchandise and that it should have value that factor ok thank you thank you have please the court jordan khan with grunfeld does dario represent happily food thing in answer to judge moore's question yes of course we translated those ten lines and we didn't find anything that would in any way impeach the reliability that it's important when we filed was the last day in the record was open we filed it then it was brought to our attention after the record closed during briefing not by calico by the way it was by the other responded who wanted malaysian financials as soon as  absurd it wherever did this don't do it again it looks like a monkey put this together a real monkey and you know we asked congress to you thing document considered and so this is a problem of your making a problem of your making and so therefore you did have some obligation to try to correct your rony asleep translated document that you failed to translate the complete document so if i had been in your shoes and truly believe that those two non translated paragraphs really are not material i would have done everything i could have to try to present the translated paragraphs to commerce instead you're asking that you don't order mommy to do your work for you and i don't really understand why you would oppose it  matter well the you know we felt that that was sufficient that because the record was closed that we've that we would require either a court order or congress on its own volition and when they took the time to reopen the record to ask us for more information that would have been the perfect opportunity to do this simple task or they could have done it themselves as they've done in subsequent i don't understand why you still your keep you keep blaming other people for your failure to do your own homework why didn't you try to volunteer to do your own homework and you volunteered to try to present translations could have easily just filed a motion and then have the translated document as an attachment say it's right here i've done what i was supposed to do is is also pretty straightforward d too but you know we did we did q this up i mean we appealed converses denial i mean the fact that we didn't say mother may i shouldn't you know you know i don't ask to do it at all it's not like you didn't say consistent theme was that you know this minor clerical error could be simply cured and that we could that you know we should that we did ask we did lodge or injection you know look we made a mistake but the consequences have been severely disproportionate as a result of these ten lines we've had to participate in for administrative reviews and this court in n t end said that you know clerical errors should be fixed and that there shouldn't you congress can't appendix that shows that you volunteer to try to fix this problem of your own making by providing that missing translation is that fair to say that the best you have is  asking the trade court to order commerce to fill in your ga aged paragraphs well the question is whether that information would be vital to calculate the ratio and the well that's not clearly the question i mean yes that's what the c i t got to in his nd or rd the man  says unless we determine it's vital so i'm i mean i understand that somehow this vital notion has been imported into the analysis but i'm not sure it even belongs there well this all goes down to the judge chance question in the best available information standard and it requires a meaningful supposed to know whether untranslated material is or is not vital it's two paragraphs ten sentences in a financial statement maybe those ten sentences are oh and by the way i mean we only did x or we got s or whatever who knows what those ten sentences are and so i think that gives you much point which is how can commerce make a determination of vital a perfect determination of vital when it doesn't have to translate a fully translated there's three of them and they lay out in detail so we know the numbers from the schedule that was it looks like a mistake when he made a mistake looks like a mistake however not remembering the us because of a clerical error they have nothing with nothing in the record and let me just answer this question about i mean we have to assume it's a clerical error that we don't know even and we don't know you know i mean commerce they have to police these proceedings the best they can and they have to try to take in that and rely on the information they get from all those interested parties and if the interested parties don't do what they're supposed to do then it makes congress's job that much tougher and it's trying to incentivize the parties to give them the most complete information possible not to incentiv and so you know for commerce to now say well you know we're going to treat this as if it invalidates all of your data we we think that that goes way too far especially when the consequences here are keeping us under order whereas otherwise using a perfectly i understand this to be a fact finding of sorts that they are properly exercising their discretion to conclude that the document should not be considered and so i specifically and mean they they say we find that footnotes regarding this assets are a key component of a company's financial statements that the information set forth in the company's fixed asset footnote is vital to our sara good ratio analysis for several reasons and may go through a bunch of reasons of why such information could be vital and important and a significant impact on the sergant financial ratios that are otherwise disclosed so i don't understand i feel like now what's really court of international trade then said ok commerce has done what i told it to do which is determine whether or not this is vital and they determined it's absolutely vital and they give a lot of reason so i feel like at that point the c i team needed to eighty five ok look at the rd paragraph that said ordered you'll see judge goldberg is giving two distinct options congress picked the latter the latter was make it a fact sensitive finding that the statements are missing vital information what he got back from commerce was generic concerns about depreciation nothing about why does the number it's warmer impudent well because we don't know because the footnote attached the numbers wasn't translated so that's the whole problem it's like you want to hold commerce to a standard for assessing vitality that would require them to know what the missing information sends well you know that if they didn't translate and they were the ones that refuted we argued that that was an abuse of discretion that was consistent throughout then they have to make a fact sensitive find the best available information center doesn't let them so on were automatically going to disqualify based on these you know  lines especially when it didn't actually they did initially they were automatically disqualified basically ten lines but by this remained and they were saying we decide these ten lines are vital to our ability to rely on this data and they explain  percent of their fiscal year sales income was attributable to subsidize export promotion so commerce decided that that was some help better available information than the unknown better the devil you know kind of thing i guess and  very discretionary choice by them i just don't understand how courts are getting in the business of ordering these kinds of rape if they have discretion to compare to do the complex you know meaningful analysis they don't have discretion to completely say well we're good we're not going to consider their genome out of what we're to be talk about these malignant subsidies that distorted the original motor data that's nowhere in the record they wanted they were fixated they had prejudged that they were going to use that statement to keep us from reporter the c i t picked up financial statements are complete and reliable and all parties to this proceeding have been afforded the opportunity to comment on their full content furthermore because they are complete there is no risk that a party to this proceeding has good health or omitted information from agenda mot mean that there was thirteen percent of their sales income was attributable to these type programs that are per se countervail and that congressman you know and that you know congressman foley rejects financials on this basis as this court affirmed recently in china kingdom so for them to do what they've done here which is just really give you know one line and say well it's complete and yet even though it has subsidies move on there was no meaningful comparison of what it meant to be subsidized and why that da longer believes it was under protest or would you have corrected that if you believe that was an error i'm personally on i believe i would get into the internal deliberations within department of justice in our decisions whether or not to seek appeal as i'm sure the court is aware there are many things required to seek an affirmative appeal and i cannot speak to that unfortunately because it does fit into i believe privileged internal operations within the department of justice i just never seeing a c a t judge strongarm commerce as much as i saw it here and i was really surprised that the government didn't suggest as much in its brief then defend commerces discretion and you know i got to tell you i mean i really think the c i t judge exceeded his authority and took away significant discretion from commerce and so the only thing stopping me from saying that is a concern about why in the world the government doesn't agree  with that it wouldn't somehow create some kind of confusion inside of commerce operations obviously the congress would act in accordance with any issue order issued from th as i just want to make sure that if we were to do that commerce isn't already on some new program internally where it has abandoned its earlier practices that it used initially here and document well what if the record technically closed with they say well the record is technically closed and all i when i review the current record d i see it only partially translated document here so therefore i'm just going to strike it because it's not fully translated or would come or say you you only translated ninety percent of this and you go over ten percent because i think it's because you know just a little justice department for me that's fine but i mean i want to know d if you know and if you do know i'd like you to tell your honor i am not personally aware of what their current practices other than obviously the regulation does require fully a separate value to that bacterial strain because it's a factor production and so by jumping straight to this conclusion that the bacterial strain is a factor production their argument would follow then yes of course and you have to assign a value to that factor production  to be included within the essentially overhead expenses and so with the bacterial strain that we have here it's a strain that the right to use was purchased in two thousand and two by two thing and that was prior to the period of review it's uncontested at bacterial strain a self replicating which means that the bacteria stays the same throughout its life line there is no even though it's a license on an actual ownership of that bacterial strain there's no ongoing fees associated with the payment for the bacterial strain and so it it's not the converse decided that there was no value associated with that bacterial strain but rather that that value is already reflected in the surrogate invoices because the time when you factor or similarly produce additives that require the use of a bacterial strain that would be included in the overhead overhead amounts for the  union for the record just to revisit the financial statement issue one last time it is up to the parties the parties are responsible for creating the adequate record again i i hope am finally making myself clear about how the timeline is important as soon as one of these cases against china is aisles and initiated parties are on notice that they need to put circuit values on the record for these financial ratios so as of july know the initiation everyone involved in the case knew that they had a window of time to get these documents on the record to funk did not put that financial statement on the record and till end of february a post  submission again totally still timely but my point is i don't know why it didn't go on the record till that late but you know errors happen perhaps if it had gotten out earlier somebody would have noticed it sooner they would have the records to would have been open for them to fix it but that's not how how it played out and again it's up to the parties to create an adequate record to i do take issue with my colleague statement that the agenda moto financial statements were distorted there is no finding of distortion yes there is a finding that there were subsidies but congress has said and we don't disagree at all that congress has a normal practice of not using financial statements with subsidies when there is other reliable information on the record here congress and it going into the subject merchandise be valued xanth amount of competitors is goes into it there is no z in the end without this bacterial strain the fact that it was purchased in two thousand and two is completely irrelevant we are in a