[00:00:00] Speaker 02:
5-2, Chikoki Carbons versus United States.

[00:00:33] Speaker 02:
Mr. Porter, are you going first?

[00:00:43] Speaker 02:
Can you just, before the time starts, can you just tell me how you all have divided your time?

[00:00:48] Speaker 02:
Are you both intending to cover all the same issues?

[00:00:51] Speaker 04:
I know.

[00:00:52] Speaker 04:
The appellants have divided up the issues.

[00:00:54] Speaker 04:
I will address the issue of the survey value for carbonized material, and Ms.

[00:00:58] Speaker 04:
Kabita Moham will address the second issue of the truck freight.

[00:01:02] Speaker 04:
Transportation.

[00:01:03] Speaker 02:
Please proceed.

[00:01:05] Speaker 04:
Thank you.

[00:01:05] Speaker 04:
May it please the court.

[00:01:07] Speaker 04:
As I mentioned, I will address the issue of the appropriate surrogate value for carbonized material.

[00:01:12] Speaker 04:
We submit the Commerce Department's determination was flawed in a number of respects.

[00:01:17] Speaker 04:
The most important is the Commerce Department ignored the actual raw material consumed by the Chinese producer.

[00:01:24] Speaker 04:
The government admits as much.

[00:01:26] Speaker 04:
On page 27 of the brief,

[00:01:28] Speaker 04:
They claim that their choice of surrogate value, which was for a wood charcoal, was reasonable because they claim wood charcoal theoretically could be used to produce a subject merchandise.

[00:01:42] Speaker 05:
But this approach is wrong.

[00:01:44] Speaker 05:
I thought it was also because that particular category includes coconut shell.

[00:01:51] Speaker 04:
Your honor, there is no factual dispute

[00:01:55] Speaker 04:
that the imports of the import values which formed the government's choice did not include any coconut shells.

[00:02:05] Speaker 03:
Where did you have that in the record?

[00:02:06] Speaker 04:
If that's in the record, it's cited in our brief.

[00:02:10] Speaker 02:
It's cited at JA 177 in your brief with no citation to any evidence, and I have scoured this record and can't find any.

[00:02:16] Speaker 04:
You're right.

[00:02:17] Speaker 04:
We submitted in our very first submission, surrogate values,

[00:02:25] Speaker 04:
We said, the reason we are putting on the cocoa community prices is because there were no imports of the coconut charcoal for that particular time period.

[00:02:37] Speaker 02:
And that- You have asserted it, but you have to put evidence in the record.

[00:02:43] Speaker 02:
Isn't it your obligation to come forward?

[00:02:45] Speaker 02:
Who has the burden of coming forward with evidence?

[00:02:47] Speaker 04:
Thank you, Your Honor.

[00:02:50] Speaker 04:
Ordinarily, the respondents, interested parties have the burden.

[00:02:55] Speaker 04:
But I submit not in this case.

[00:02:58] Speaker 04:
And the reason is the way the Commerce Department obtained the data.

[00:03:05] Speaker 04:
The Commerce Department itself pulls down the data from the service.

[00:03:10] Speaker 04:
We also are subscribed to the service.

[00:03:12] Speaker 04:
But the Commerce Department itself pulls down the data.

[00:03:15] Speaker 04:
They know as a factual matter there were no imports

[00:03:20] Speaker 04:
of coconut shell tar book.

[00:03:22] Speaker 04:
In fact, they do not dispute that point.

[00:03:26] Speaker 05:
Let's assume they do dispute that point.

[00:03:29] Speaker 05:
Weren't you the one, Jacobi, that submitted the HTS 4402 table with the chart showing imports of goods that fall within 4402?

[00:03:46] Speaker 05:
I'm talking about JA 255.

[00:03:49] Speaker 05:
approximately 257.

[00:03:51] Speaker 04:
Yes, Your Honor.

[00:03:52] Speaker 05:
There's a process to these reviews.

[00:03:56] Speaker 05:
And then Commerce ended up relying on that particular submission.

[00:04:02] Speaker 05:
I'm talking about 4402.

[00:04:06] Speaker 04:
Again, with all due respect, the Commerce Department did not rely on our submission for that.

[00:04:12] Speaker 04:
They pulled down the data.

[00:04:15] Speaker 04:
And I think it's important to emphasize

[00:04:18] Speaker 04:
What I'm talking about in the brief of GHC on page 30 and 31, they list the HDS.

[00:04:26] Speaker 04:
And if I think you know, the four digit HDS is just a sum of the individual 10 digit category.

[00:04:32] Speaker 05:
Well, it's not clear to me that Commerce had what you are citing now in your appellate brief.

[00:04:39] Speaker 05:
in front of them during their administrative review process.

[00:04:42] Speaker 05:
They most certainly did, Your Honor.

[00:04:44] Speaker 05:
But it wasn't due to a submission by you, right?

[00:04:48] Speaker 05:
Your submission was J.A.

[00:04:49] Speaker 05:
255 to 257.

[00:04:53] Speaker 04:
Our submission noted because we all do the same thing that the Commerce Department analysts do.

[00:04:59] Speaker 04:
We go through the data and we look at it.

[00:05:02] Speaker 04:
And our submission made a factual assertion

[00:05:05] Speaker 04:
which was never disputed that there were no imports of coconut charcoal.

[00:05:09] Speaker 05:
Can you show me where you, in the record, you made the assertion?

[00:05:15] Speaker 04:
Yes, it is our November, I believe... Page 177.

[00:05:20] Speaker 02:
Page 177 of the record.

[00:05:21] Speaker 02:
Page 177 of the record.

[00:05:23] Speaker 04:
I know it's our November surrogate value.

[00:05:29] Speaker 05:
Yes, your November 16, 2011 submission to the Commerce Secretary.

[00:05:34] Speaker 05:
It does say that no data is available as to coconut shell charcoal, but that's not the same thing as saying there was no coconut shell imports during the relevant period of review.

[00:05:52] Speaker 04:
Do you see the distinction between those two sentences?

[00:05:54] Speaker 04:
Your Honor, not in this case.

[00:05:56] Speaker 04:
It's very simple.

[00:05:58] Speaker 04:
Everyone pulls down the same data, and the data is by HTS.

[00:06:03] Speaker 04:
And it is a factual certainty that there were no imports under this 10-digit of coconut shell charcoal.

[00:06:12] Speaker 04:
And there's no dispute about that.

[00:06:16] Speaker 05:
But I don't see where you made the assertion.

[00:06:21] Speaker 04:
We definitively said there are no imports.

[00:06:26] Speaker 02:
There's no data available for coconut shell charcoal from the Philippines imported under HTS, and then you have a typo.

[00:06:34] Speaker 02:
You say 4402.00-10, which actually doesn't correspond to any of the various HTS that I've been frustrated having to understand in this case.

[00:06:44] Speaker 02:
So I don't need that one sentence in isolation without citation or anything.

[00:06:48] Speaker 02:
If you're saying we both pulled down the GTA data, and I'll tell you I pulled out the GTA data.

[00:06:53] Speaker 02:
You didn't give it to me.

[00:06:54] Speaker 02:
It wasn't part of this record.

[00:06:55] Speaker 02:
It wasn't put before commerce.

[00:06:56] Speaker 02:
But I went in our library, pulled it down for every single year, and matched it up against every chart.

[00:07:01] Speaker 02:
But you didn't present any of that evidence to commerce.

[00:07:04] Speaker 02:
Commerce didn't pull it down.

[00:07:05] Speaker 02:
They relied on the basket chart overall.

[00:07:07] Speaker 02:
And you make an assertion which has hyphos in it, which I really don't even understand which HTS you're referring to, and you say, that's good enough.

[00:07:15] Speaker 02:
Commerce should have known that from that we met.

[00:07:18] Speaker 02:
And I'm not sure you're right, even.

[00:07:20] Speaker 02:
You say they don't dispute it.

[00:07:21] Speaker 02:
I read them as disputing it.

[00:07:22] Speaker 02:
But I have the actual charts, and I'm not sure you're actually right about how you're reading the GTA data.

[00:07:28] Speaker 02:
Of course, that's not something I should be doing as an appellate court judge, but I've got them.

[00:07:32] Speaker 02:
I've got all of them right here.

[00:07:33] Speaker 02:
I pulled them down myself, since you're saying it's not in dispute.

[00:07:37] Speaker 02:
Seems to me not clear.

[00:07:39] Speaker 02:
And it definitely wasn't part of the record, so I don't know what to do about that.

[00:07:42] Speaker 04:
I submit the GTA data is a different type of factual information because commerce pulls it down itself and I submit they pull it down and they know because they're pulling down the 10-digit numbers and that's how you get to the 4-digit sum.

[00:07:58] Speaker 05:
Well if you're saying it's so easy to pull down the data and everybody knows where to get the data, how come at JA 177 in your 2011 letter you say there are no data available?

[00:08:11] Speaker 05:
for a coconut shell charcoal from the Philippines.

[00:08:13] Speaker 04:
Right.

[00:08:14] Speaker 04:
So it's a particular year in question.

[00:08:16] Speaker 05:
There is no data.

[00:08:17] Speaker 05:
So maybe, are you saying, as of 2011, November, there was no data available at that time for it?

[00:08:26] Speaker 05:
I'm sorry, Your Honor.

[00:08:27] Speaker 04:
Everyone knows we have a specific review period.

[00:08:30] Speaker 04:
In this case, I think it was April to March.

[00:08:34] Speaker 04:
Everyone knows that.

[00:08:35] Speaker 03:
From 2010 to 2011.

[00:08:37] Speaker 04:
Yeah.

[00:08:37] Speaker 04:
And in that sense, we're always looking backwards, because there's a review period, and then the review begins.

[00:08:43] Speaker 04:
So we're always looking backwards in time.

[00:08:46] Speaker 04:
So there's no issue about whether the data exists.

[00:08:49] Speaker 04:
That's what I'm saying.

[00:08:51] Speaker 02:
So Counsel, I have the data.

[00:08:53] Speaker 02:
And I know it's absurd for me to sit here as an appellate court judge and talk to you about the data that's not in the record.

[00:08:58] Speaker 02:
But you are correct that there is one year for which the basket doesn't include

[00:09:04] Speaker 02:
any coconut shell data, but that year is the year ending March of 2010, and your review period is April 1st of 2010 to March 31st of 2011, and for that period, it contains U.S.

[00:09:18] Speaker 02:
dollars in the amount of $70,000 worth of coconut shell, which is actually about, I don't know, 35% of the overall in the basket quantity.

[00:09:32] Speaker 02:
looked at all of the data that you keep saying everybody has access to, and I completely don't see how it supports what you're arguing now.

[00:09:39] Speaker 04:
Your Honor, I see my time's up.

[00:09:41] Speaker 04:
I don't want to take my time from my colleagues.

[00:09:43] Speaker 02:
We'll be generous.

[00:09:44] Speaker 02:
You don't have to worry about that.

[00:09:45] Speaker 02:
I think we have a lot of questions.

[00:09:48] Speaker 04:
I'm sorry.

[00:09:51] Speaker 04:
If you ask to say, let's forget about the record, ask as a matter of truth, ask government counsel,

[00:09:59] Speaker 04:
whether, for this review period, there were imports of coconut shell charcoal.

[00:10:05] Speaker 04:
But just forget about whether it's gone or not.

[00:10:06] Speaker 04:
Just ask that question.

[00:10:08] Speaker 04:
The answer will be no, because they know it.

[00:10:12] Speaker 03:
Do you think this material is judicially noticeable?

[00:10:15] Speaker 04:
Yes, I do.

[00:10:17] Speaker 04:
And in fact, the Trade Court itself made that during the oral argument, there was this confusion over the typo.

[00:10:25] Speaker 04:
And the Trade Court says, we can take judicial notice

[00:10:28] Speaker 04:
of the HTS of the Philippine HTS system.

[00:10:33] Speaker 04:
So I do think it's digital.

[00:10:37] Speaker 04:
And I apologize, I don't have the data that your honor has, but I can tell you that there was no dispute about this.

[00:10:43] Speaker 04:
The whole dispute below, the reason there was so much discussion was whether you could in fact use wood or not use wood,

[00:10:53] Speaker 04:
to make the subject merchandise.

[00:10:55] Speaker 04:
But that's irrelevant, because it is also no dispute that neither of the two producers for whom the Commissar Parker was trying to get the survey value for this did not consume wood charcoal in producing the merchandise that entered during the review period for which you're trying to calculate a margin.

[00:11:13] Speaker 03:
What is the evidence in the record that shows the difference in the price of wood-based charcoal versus

[00:11:22] Speaker 03:
not our coal-based charcoal?

[00:11:25] Speaker 04:
Well, if the answer to your direct question is the only evidence of the price of the wood-based charcoal is the circular values that the Commerce Department used, we submit there's evidence of the coal, coconut shell charcoal, which the Commerce Department itself repeatedly has said is the best proxy for the coal-based charcoal that was actually consumed.

[00:11:48] Speaker 04:
So the coconut charcoal, we see that the best evidence is the cocoa community publication that the respondents put in.

[00:11:57] Speaker 03:
And you agree with the proposition that nut-based charcoal is effectively equivalent in price to coal-based charcoal?

[00:12:09] Speaker 04:
I would agree with the Commerce Department's repeated, faster conclusion that coconut shell charcoal is the best proxy for coal-based, essentially carbonized material that was consumed by these two producers.

[00:12:22] Speaker 04:
I would agree with that.

[00:12:24] Speaker 04:
And that's the whole... Can we back up for one second?

[00:12:27] Speaker 02:
One of the things that you have asserted here is that you absolutely, for the imports of record,

[00:12:39] Speaker 02:
don't use wood to make the coal-based charcoal.

[00:12:43] Speaker 02:
And I really just don't understand this technology, to be honest with you.

[00:12:48] Speaker 02:
But at page 386 of the record, why don't you grab your appendix and let's look at 386.

[00:12:54] Speaker 02:
Because these are the fact findings by Commerce and their IMD.

[00:13:00] Speaker 02:
And they differentiate between wood in two ways.

[00:13:05] Speaker 02:
Wood seed stocks, which can be used to produce products,

[00:13:10] Speaker 02:
and wood-based products.

[00:13:13] Speaker 02:
One is within the scope of the order, one is not.

[00:13:16] Speaker 02:
And so I don't necessarily understand the difference.

[00:13:20] Speaker 02:
You can explain it to me.

[00:13:21] Speaker 02:
But most importantly, I want you to direct me to expressly where you made it clear to commerce that you didn't fall in the category of using any wood in the context of making your charcoal.

[00:13:36] Speaker 04:
Certainly.

[00:13:37] Speaker 04:
And this was actually, I can, well,

[00:13:40] Speaker 04:
The whole distinction with wood, charcoal, and wood, I submit, is a complete red herring.

[00:13:46] Speaker 02:
The wood feedstock.

[00:13:47] Speaker 04:
I mean, you know what that is.

[00:13:49] Speaker 04:
I submit it's a complete red herring.

[00:13:51] Speaker 04:
It's irrelevant.

[00:13:52] Speaker 04:
And the reason I do is because of our second underlying factual point, which I submit there can be no dispute in which is neither of the two producers for whom a surrogate value had to be adopted

[00:14:07] Speaker 04:
used wood to produce the subject merchandise that was sent to the United States for this review period.

[00:14:12] Speaker 04:
And I will show you in the record where we're going to, if you look at the, and I can show you in the record, but it's a little bit easier to show you in the brief.

[00:14:25] Speaker 04:
If you look at these.

[00:14:26] Speaker 03:
Unless the brief, I want a record site.

[00:14:29] Speaker 02:
I'm not interested in your argument.

[00:14:30] Speaker 04:
I want to hear... The brief quotes or the records.

[00:14:33] Speaker 04:
I just thought that was easier, but I can go through.

[00:14:37] Speaker 04:
Look at page five of the GHC brief, which is the Ningxia Wanwan, writing what page of the appendix.

[00:14:49] Speaker 04:
It's JA77, which is the Commerce Department Questionnaire.

[00:15:00] Speaker 04:
turn to that.

[00:15:05] Speaker 04:
This is the actual questionnaire given to the Chinese producers.

[00:15:12] Speaker 04:
And the questionnaire requires the Chinese producers to identify each raw material that they consume to produce a separate merchandise and a lot more information.

[00:15:23] Speaker 04:
So if you look on page 77, it says, please tell us

[00:15:29] Speaker 04:
whether the merchandise he sent was made of coal, the tumus coal, anthracite coal, or wood.

[00:15:37] Speaker 04:
And I can tell you, as a factual matter, there's not a single shipment by either producer that identified wood as being used to make the merchandise enter during the review period.

[00:15:50] Speaker 04:
Hold on.

[00:15:51] Speaker 07:
Where's that in the record?

[00:15:55] Speaker 03:
Are these the record sites that would contain the evidence that you're talking about?

[00:16:00] Speaker 03:
A, 150 to 156, 290 to 301, and 112 to 115, particularly?

[00:16:10] Speaker 03:
Those are the spreadsheets that include the references to coal by tumulus and anthracite, as I understand it, for both cherishment

[00:16:23] Speaker 03:
I'm Jacobi.

[00:16:24] Speaker 03:
Is that the evidence that you're referring to, sent in response to the questionnaire?

[00:16:31] Speaker 04:
In response to the questionnaire, each producer gives a database of every single U.S.

[00:16:38] Speaker 04:
shipment.

[00:16:39] Speaker 04:
And they identify this information of every single U.S.

[00:16:42] Speaker 04:
shipment.

[00:16:43] Speaker 04:
And you can see that simply by looking at the instructions turned two pages earlier on page 70.

[00:16:52] Speaker 04:
a database listing every US sale.

[00:16:55] Speaker 04:
And in doing so, identify the type of merchandise that's being shipped to the United States.

[00:17:04] Speaker 04:
It's hard to give databases to the court.

[00:17:10] Speaker 04:
So all we're doing is we're saying,

[00:17:12] Speaker 04:
We comply.

[00:17:13] Speaker 04:
There's no disagreement that the producer didn't comply with this questionnaire.

[00:17:17] Speaker 04:
There's no dispute about that.

[00:17:19] Speaker 02:
It's not about whether you've complied with the questionnaire.

[00:17:21] Speaker 02:
You still haven't pointed me though.

[00:17:23] Speaker 02:
You pointed me to the questionnaire that asks the question.

[00:17:26] Speaker 02:
What you haven't pointed me to is the record evidence that contains the answer that unequivocally put commerce on notice of the fact that you employed no wood either as a source material or as feedstock in the production of your

[00:17:39] Speaker 02:
coal-based charcoal.

[00:17:40] Speaker 02:
I think I said all that right.

[00:17:43] Speaker 04:
We did, in our brief, cite our Section D response, in which we noted the supplier called DATCOM4, or DTFW, specifically says, we only use coal in producing the subject merchandise.

[00:18:01] Speaker 04:
That's in our brief.

[00:18:02] Speaker 04:
And the record site is there.

[00:18:03] Speaker 04:
So I could find it.

[00:18:05] Speaker 04:
So there is evidence.

[00:18:07] Speaker 04:
That is a question and response of the actual producer in question saying, we only use coal in producing subject merchandise.

[00:18:16] Speaker 04:
So that's evidence number one, yes.

[00:18:19] Speaker 03:
Tell me if this is the underlying evidence, at least with respect to cherishment.

[00:18:25] Speaker 03:
If you turn your joint appendix to page 155, there is, at the top of the page, there's a description of

[00:18:36] Speaker 03:
a variety of numbers, which are identified as, in the 1, 2, 3, fourth column, form U, 2, 2, 1, 2, 1, 1.

[00:18:51] Speaker 03:
Those correspond, if I'm correct, to the listings of, and I found that page 150, of 2 being bituminous coal, not metallurgical grade, and 1 bituminous coal, metallurgical grade.

[00:19:06] Speaker 03:
Is that the evidence you're talking about with respect to cherishment?

[00:19:10] Speaker 04:
I'm actually looking at, yes.

[00:19:13] Speaker 04:
The point is, the carbon new column.

[00:19:17] Speaker 04:
That's the carbon new column.

[00:19:19] Speaker 04:
The point is, this is the... Oh, I'm sorry.

[00:19:21] Speaker 03:
I got the wrong column.

[00:19:22] Speaker 03:
It's the 55555, which is emphasizeable.

[00:19:27] Speaker 04:
You are correct.

[00:19:28] Speaker 04:
This is the printout of the electronic database given.

[00:19:32] Speaker 03:
And so that's your proof that this all came from... Exactly.

[00:19:36] Speaker 04:
Because this lists every single U.S.

[00:19:40] Speaker 04:
shipment and identifies

[00:19:42] Speaker 04:
the type of merchandise used to produce the subject merchandise.

[00:19:47] Speaker 04:
I'm sorry.

[00:19:47] Speaker 04:
Pack of raw material used to produce the subject merchandise.

[00:19:50] Speaker 04:
So you are correct.

[00:19:51] Speaker 04:
This database with those numbers that absolutely demonstrate no wood was used by either producer during this territory.

[00:20:02] Speaker 03:
The same exists for Jacobi.

[00:20:04] Speaker 03:
Well, similar.

[00:20:05] Speaker 04:
The point is the same database.

[00:20:07] Speaker 04:
I mean, a similar, because we're all required

[00:20:10] Speaker 04:
to put the database in the same format, so that the exact same evidence exists for Scobie.

[00:20:14] Speaker 04:
And again, this is not disputed by the government, because it cannot be disputed.

[00:20:20] Speaker 04:
These databases, no one's contesting these databases.

[00:20:25] Speaker 04:
And these databases all show that neither producer consumed wood.

[00:20:29] Speaker 04:
And that's the government's fundamental mistake.

[00:20:32] Speaker 04:
They ignored that point when choosing the surrogate value.

[00:20:35] Speaker 04:
And I would submit that that mistake is contrary to their own policy bulletin, which says you should do prices specific to the input.

[00:20:44] Speaker 04:
It's contrary to numerous trade court decisions, which have overturned commerce when they weren't specific to the input.

[00:20:52] Speaker 04:
And I actually submit.

[00:20:53] Speaker 05:
Are you saying that commerce can't use these types of basket categories that include the particular species of material, but that also include other related

[00:21:05] Speaker 04:
not if more specific surrogate ballots exist.

[00:21:11] Speaker 04:
That is our position.

[00:21:12] Speaker 04:
And that has been the trade court's position.

[00:21:14] Speaker 04:
And I submit, actually, this court itself noted this concept in the 2011 case, Zhejiang Duan.

[00:21:21] Speaker 04:
My Chinese pronunciation, I'm sure, is horrible.

[00:21:24] Speaker 04:
But at the 2011 case.

[00:21:25] Speaker 02:
OK, Mr. Porter, I think that we better give

[00:21:29] Speaker 02:
Ms.

[00:21:31] Speaker 02:
Mohan a chance and move on to the transportation issue.

[00:21:35] Speaker 04:
Thank you for your diligence, Your Honor.

[00:21:36] Speaker 04:
Good morning, Your Honor.

[00:21:47] Speaker 01:
Please record.

[00:21:48] Speaker 01:
I'll be addressing the issue for truck freight.

[00:21:51] Speaker 01:
The Department of Commerce is required to use the best information available on the record.

[00:21:56] Speaker 01:
And in this instance, the best information available for truck freight was Thai truck freight data, not Philippine truck freight data as used in the final results.

[00:22:05] Speaker 01:
And the reason for this is that Thai truck freight data was superior because it was based on a broad market average covering a range of prices.

[00:22:12] Speaker 01:
It was product specific.

[00:22:15] Speaker 01:
And it was consistent with commercial reality.

[00:22:18] Speaker 03:
Now, the time data, if I understand correctly, was a few years out of date.

[00:22:23] Speaker 03:
Is that correct?

[00:22:24] Speaker 03:
It went back to 2005, whereas the Philippine data was up to date?

[00:22:28] Speaker 01:
That's correct.

[00:22:28] Speaker 03:
That was cut in favor of the Philippine data.

[00:22:31] Speaker 01:
Actually, I think this is actually a kind of a wash on the two.

[00:22:36] Speaker 01:
It brings them both.

[00:22:37] Speaker 01:
Because if you actually look at the preliminary results from this case, the circuit value memo, which is on the record, in the preliminary results,

[00:22:45] Speaker 01:
an inflation rate was applied to the 2005 TIE trucks rate data, which made it contemporaneous.

[00:22:52] Speaker 01:
And if you actually look at the language used by the department in the preliminary results surrogate value memo, it said TIE trucks rate data is contemporaneous.

[00:23:00] Speaker 01:
They rendered it contemporaneous by applying that inflation rate.

[00:23:05] Speaker 01:
So the Thai truck rate data represented a broad market average covering a range of prices.

[00:23:12] Speaker 01:
Specifically, if you look at the Thai truck rate data, it had 10 different price points.

[00:23:17] Speaker 01:
There were two categories of freight over five different routes.

[00:23:21] Speaker 01:
So it had 10 different price points, whereas the Philippine data had only one route from Lagos to Manila.

[00:23:28] Speaker 01:
So it didn't account for the regional variations or different load conditions.

[00:23:33] Speaker 01:
It didn't have a broad market average the way that the Thai truck rate data did.

[00:23:36] Speaker 02:
I have a really dumb question.

[00:23:40] Speaker 02:
It seems to me, having read all of this, that commerce goes all or nothing.

[00:23:44] Speaker 02:
We're going to choose the Philippines as the surrogate country.

[00:23:47] Speaker 02:
Because for coal, they evaluated the Thai option as well as the Philippine option.

[00:23:53] Speaker 02:
But they went Philippine, and it's sort of like once they go one, they go that way whole hog.

[00:23:57] Speaker 02:
And they don't seem... Are they supposed to analyze each thing separately?

[00:24:03] Speaker 01:
Yes.

[00:24:03] Speaker 01:
So each surrogate value must be made on a case-by-case basis.

[00:24:06] Speaker 01:
And actually, if you look at the record of these final results itself for bituminous coal, which we mentioned in our direct brief for Cherishment, for bituminous coal, they actually went to Thailand.

[00:24:17] Speaker 01:
And under the same facts, they went to Thailand because they were more representative of a broad range of prices.

[00:24:22] Speaker 01:
and because they were more product-specific.

[00:24:24] Speaker 01:
So even on the final results of this case, and we've done it in numerous other cases, the statute doesn't require that you go to only one surrogate value country.

[00:24:33] Speaker 01:
And the rank will only be normally.

[00:24:35] Speaker 01:
So it's a department practice.

[00:24:37] Speaker 01:
It's not a requirement that the department does.

[00:24:39] Speaker 01:
And in fact, in many cases, it doesn't have to be in this case for another factor.

[00:24:44] Speaker 01:
And the source also for the Philippine data was not a country-wide source.

[00:24:48] Speaker 01:
It was a Doing Business in the City of Lugospe report.

[00:24:51] Speaker 01:
So it didn't even purport to be a country-wide source.

[00:24:55] Speaker 03:
Country-wide trucking in the Philippines would involve something that would presumably not be present in China, which is that the Philippines is a bunch of islands.

[00:25:08] Speaker 03:
So you're not going to be trucking, at least without some ferrying or transport by sea in some form,

[00:25:17] Speaker 03:
one of the islands to another.

[00:25:18] Speaker 03:
Now, it so happens that Lagospe and Manila are both on the island of Luzon.

[00:25:24] Speaker 03:
And therefore, you can truck between one to the other, and they're pretty far apart.

[00:25:28] Speaker 03:
So I'm not sure why adding in a bunch of cities that are on different islands would really help much.

[00:25:36] Speaker 01:
Well, in Thailand, what you want to do is, especially for truck freight, it's important to get a broad range of prices so that you can get a market average

[00:25:46] Speaker 01:
that accounts for regional variations, and it accounts for different locations.

[00:25:51] Speaker 03:
What I'm saying is that I'm not sure that regional variations in a country that consists mostly of islands is really going to be all that helpful to you.

[00:26:00] Speaker 03:
But it seems to me that you're going to end up with either some very short routes, which would be presumably somewhat distorted, or you would end up with different forms of transportation.

[00:26:12] Speaker 01:
But if you look at the Philippine data,

[00:26:16] Speaker 01:
It only had one route.

[00:26:17] Speaker 01:
So I think it didn't.

[00:26:20] Speaker 01:
I mean, if you kind of think of it sort of like, was it a statistically valid sample?

[00:26:24] Speaker 01:
It wasn't.

[00:26:25] Speaker 01:
It was one route.

[00:26:26] Speaker 01:
And there is record evidence on this record that TIED data had 10 separate different routes.

[00:26:32] Speaker 01:
It's a per unit average route that price that we're getting.

[00:26:35] Speaker 01:
And the TIED data was just much more, it was a much more broad-based better market average.

[00:26:41] Speaker 03:
There's no evidence, I take it, that the Manila

[00:26:46] Speaker 03:
rate was unrepresentative of the average Philippine truck rate per island, right?

[00:26:55] Speaker 01:
Well, on the record, it's very clear that it's only based on one.

[00:26:59] Speaker 03:
I understand, but what I'm saying is there wasn't any evidence saying, and what's more, that is unrepresentative of trucking rates in the Philippines in general.

[00:27:10] Speaker 01:
There was not evidence.

[00:27:12] Speaker 01:
There's not document evidence of that.

[00:27:14] Speaker 01:
I think what you have, though, is Thai evidence showing 10 different routes.

[00:27:18] Speaker 01:
It's basically 10 times better than, you know, because it has 10 different price points, whereas you're just looking at one for Thailand.

[00:27:25] Speaker 05:
There were multiple trucking companies, though, right, in the Philippines, for that one route.

[00:27:30] Speaker 01:
That's correct, but only for the one route, from Legosky to Manila.

[00:27:33] Speaker 01:
Okay, Ms.

[00:27:34] Speaker 02:
Mohan, your time is well past expired.

[00:27:36] Speaker 02:
I'll restore your rebuttal time, but we need to hear from the government.

[00:27:40] Speaker 07:
Okay, thank you very much.

[00:27:44] Speaker 02:
Your Honor, beginning with Appellant's argument related to carbonized material, they continue to conflate wood with wood charcoal.

[00:27:59] Speaker 02:
And as we explain in our briefs, wood is not equivalent to wood charcoal.

[00:28:05] Speaker 02:
I'd like to point, Your Honors, to the record that's page JA255, where we

[00:28:12] Speaker 02:
where the different HTS categories are set forth.

[00:28:16] Speaker 02:
So the HTS category, the category relevant to this case, is HTS 4402, which is wood charcoal, including shell, or not charcoal.

[00:28:26] Speaker 02:
And 4403, as we explained, is wood.

[00:28:30] Speaker 03:
So this is the Philippine version of the HTS, correct?

[00:28:35] Speaker 02:
Yes, Your Honor.

[00:28:35] Speaker 03:
This isn't the HTS, the nationwide HTS.

[00:28:40] Speaker 03:
I mean, the worldwide HTS, right?

[00:28:42] Speaker 02:
Actually, let me just confirm.

[00:28:43] Speaker 03:
It is the Thai version or the Philippine version?

[00:28:46] Speaker 02:
I believe it is the Philippine version, but I will have to know.

[00:28:54] Speaker 03:
It's different, of course, from the version that shows up in Cherishman's Brick.

[00:29:01] Speaker 02:
All right?

[00:29:03] Speaker 02:
So this reflects in the Philippines, 255 through 256.

[00:29:07] Speaker 02:
So it gives to reflect the Philippines.

[00:29:09] Speaker 02:
Yeah.

[00:29:09] Speaker 02:
And I'm just citing this for the proposition

[00:29:12] Speaker 02:
are incorrect in that they're conflating wood with wood charcoal.

[00:29:16] Speaker 02:
We are arguing that coconut shell charcoal, which is undisputed as what they use for carbonized materials, falls within HDS 4402 because it is a wood charcoal that is a subset of this category.

[00:29:33] Speaker 02:
This category explicitly, by its terms, reflects or refers to shell

[00:29:38] Speaker 02:
shell charcoal.

[00:29:39] Speaker 02:
Coconut shell charcoal is shell-derived charcoal.

[00:29:42] Speaker 02:
It is a subset of 4402.

[00:29:46] Speaker 05:
Just to make that clear.

[00:29:47] Speaker 05:
Just so I understand, so 4402, what are the various items that fall within 4402?

[00:29:55] Speaker 05:
Coconut shell, that's one.

[00:29:57] Speaker 05:
What else?

[00:29:58] Speaker 02:
Well, based on this record evidence, there are two categories, bamboo and other.

[00:30:05] Speaker 05:
I know, but the other isn't

[00:30:08] Speaker 05:
I mean, this 4402 wood charcoal, it doesn't comprise just bamboo and coconut shell, right?

[00:30:15] Speaker 05:
It must comprise other items.

[00:30:18] Speaker 05:
What are those other items?

[00:30:20] Speaker 02:
There's nothing in the records to support the other items.

[00:30:25] Speaker 02:
All we have is the broadbasket category, Your Honor.

[00:30:29] Speaker 05:
So the government doesn't know what else is in 4402.90 besides coconut shell?

[00:30:35] Speaker 02:
Your Honor, that goes to

[00:30:38] Speaker 02:
what was discussed earlier, appellants can continue to argue that, and I'd like to use their language, that commerce pulls down HTS data.

[00:30:48] Speaker 02:
That contention, that commerce, or that speculation that commerce pulls down data is incorrect, and it offends this court's precedent.

[00:30:57] Speaker 02:
As discussed earlier by Your Honor, the precedent that this court has issued related to surrogate value determinations

[00:31:06] Speaker 02:
requires that the parties create the administrative record.

[00:31:12] Speaker 02:
Here, by continuing to argue that this court or in the court below should have relied upon argument and comment, completely upends that standard.

[00:31:23] Speaker 05:
Oh, I was just going to ask, can you explain why we're looking at apparently two different versions of 4402?

[00:31:33] Speaker 05:
You've pointed us to one, that's an A255.

[00:31:36] Speaker 07:
Right.

[00:31:37] Speaker 05:
But then there's another variation of HDS 4402 that appears in a couple blue briefs, one of page 32, another page 31 of another blue brief.

[00:31:46] Speaker 05:
What's going on?

[00:31:47] Speaker 02:
I'm sorry, I pointed to 255 to just deal with the station issue.

[00:31:51] Speaker 02:
I understand that.

[00:31:52] Speaker 05:
The question is why are there two different versions of what appears to be the exact same Philippines HDS 4402?

[00:32:04] Speaker 05:
Do you understand what I'm referring to?

[00:32:06] Speaker 05:
What I'm referring to in the blue brief is that they are consistently citing two different versions of 4402.

[00:32:13] Speaker 02:
Right.

[00:32:14] Speaker 05:
That's the one we're looking at today.

[00:32:16] Speaker 02:
Right.

[00:32:16] Speaker 02:
And that version is extra record evidence.

[00:32:19] Speaker 02:
It's not what Jacobi actually initially placed before Commerce, which is the broad bracket category.

[00:32:26] Speaker 05:
So are you telling me you don't know why there's two different versions?

[00:32:31] Speaker 02:
Well, yeah, I do know why.

[00:32:33] Speaker 02:
One is what they place in their briefs as extra record evidence.

[00:32:39] Speaker 02:
And then there's a broad basket category, which is what they provided to Commerce during the preliminary changes of the proceedings.

[00:32:48] Speaker 02:
So are you saying that what appears at page 255 is the only HTS

[00:32:54] Speaker 02:
that was before commerce at the time it made its decision.

[00:33:44] Speaker 05:
There's another table at A421.

[00:33:54] Speaker 02:
That's the basket data of the GTA, right?

[00:34:13] Speaker 02:
This appears to be Jacobi's submission.

[00:34:21] Speaker 02:
This is attached to the IND.

[00:34:27] Speaker 02:
I'm sorry, Your Honor.

[00:34:28] Speaker 02:
It is, as Judge Chen pointed out, 421.

[00:34:31] Speaker 02:
This is what was relied upon.

[00:34:33] Speaker 02:
This is what was attached to the IND.

[00:34:35] Speaker 02:
I'm sorry about that.

[00:34:37] Speaker 02:
Slow down.

[00:34:38] Speaker 02:
So you say this is what was relied upon.

[00:34:40] Speaker 02:
So did they have that HTS at the 255?

[00:34:45] Speaker 02:
I think they did.

[00:34:47] Speaker 02:
I think that's what was presented to them by Jacobi.

[00:34:53] Speaker 02:
So at 255, they had that.

[00:34:56] Speaker 02:
Then they also had what's present at 421, which is a table from the GTA data source, correct?

[00:35:02] Speaker 02:
Yes, Your Honor.

[00:35:03] Speaker 02:
OK, that middle thing at the table.

[00:35:05] Speaker 02:
But that's not an HTS.

[00:35:07] Speaker 02:
That's not, I guess what I'm wondering about is what appears at page 32 of Jacobi's, Jacobi's blue brief.

[00:35:17] Speaker 02:
Jacobi's blue brief.

[00:35:21] Speaker 02:
Where did this come from, and was this before commerce?

[00:35:28] Speaker 02:
Does it reflect a citation?

[00:35:32] Speaker 02:
I imagine this is what, this is their extra record evidence.

[00:35:39] Speaker 02:
This was not before commerce.

[00:35:43] Speaker 02:
This is what they are placing in the record now.

[00:35:48] Speaker 02:
And again, they're placing it on the record now up in the Fourth Circuit Value President.

[00:35:54] Speaker 03:
Mr. Porter put down a challenge to you in his argument that you would agree with him.

[00:36:01] Speaker 03:
He was confident that there was no import of coconut shell charcoal in 2000 in the year of review.

[00:36:11] Speaker 03:
Do you agree with that?

[00:36:12] Speaker 02:
No, Your Honor.

[00:36:13] Speaker 02:
And the reason why is because there's nothing on the evidence to support that position.

[00:36:19] Speaker 02:
They speculate as to how commerce draws down information.

[00:36:24] Speaker 02:
But this is not record evidence.

[00:36:26] Speaker 02:
This is speculation about commerce's processes.

[00:36:28] Speaker 03:
Do you have any evidence to the contrary?

[00:36:33] Speaker 03:
His assertion is that there was no charcoal, I'm sorry, no coconut shell-based charcoal imports in the review year.

[00:36:45] Speaker 02:
We have no evidence.

[00:36:47] Speaker 02:
We have no evidence.

[00:36:48] Speaker 02:
Either way.

[00:36:49] Speaker 02:
Well, they didn't place anything on the record, Your Honor.

[00:36:53] Speaker 02:
What we do have is an HDS category that includes what they, and it's an undisputed fact that they did use coconut shell charcoal.

[00:37:02] Speaker 02:
as carbonized materials.

[00:37:03] Speaker 02:
That's undisputed, Your Honor.

[00:37:04] Speaker 02:
They being?

[00:37:05] Speaker 02:
I'm sorry, um, Jacobi.

[00:37:07] Speaker 02:
But not Cherishment.

[00:37:09] Speaker 02:
I thought they used coal.

[00:37:10] Speaker 02:
I thought they used coal.

[00:37:11] Speaker 02:
But Cherishment didn't use coal.

[00:37:12] Speaker 02:
You just said it's undisputed they used coal.

[00:37:14] Speaker 02:
Well, the record reflects that Jacobi used coconut shell and anthracite coal.

[00:37:19] Speaker 02:
But not Cherishment, right?

[00:37:21] Speaker 02:
No, in that Cherishment or GSHC, as we refer to them, used coconut shell charcoal and betuminous coal.

[00:37:28] Speaker 03:
So where do you find, I thought that the materials we just looked at that showed cherishments submission, commerce showed it was all coal either by two minutes or after the site.

[00:37:41] Speaker 02:
We have, I'll point your honor to the citation to the components from both Jacoby and GTS.

[00:37:56] Speaker 03:
It would help me, actually.

[00:37:57] Speaker 03:
I don't know about my colleagues here, but if we could settle on a single word.

[00:38:01] Speaker 03:
Sure.

[00:38:02] Speaker 03:
It would be easier to remember than the acronym.

[00:38:06] Speaker 03:
I guess you're wrong.

[00:38:09] Speaker 03:
At least for me.

[00:38:11] Speaker 02:
I concur.

[00:38:16] Speaker 02:
The site for Jacoby's production using both ampersicol and coconut shell

[00:38:25] Speaker 02:
are at a 767-268-65, I'm sorry, 765-977-1275 and 1277, which we cite in our brief.

[00:38:38] Speaker 03:
Okay, now Cherishment.

[00:38:40] Speaker 02:
And Cherishment would be at 1522 and 1527, which reflects coconut shell, carbonized material composes a coconut shell as well as the two-minute toll.

[00:38:52] Speaker 02:
1522 and 27.

[00:38:55] Speaker 05:
When I look at 1522, it identifies, at the top of 1522, coconut shell and other carbonized materials.

[00:39:09] Speaker 05:
I don't see it quite, maybe you can help me identify that second category.

[00:39:21] Speaker 02:
Yes, John.

[00:39:34] Speaker 02:
1522 refers to coconut shell and other carbonized materials and... What does that other carbonized materials mean?

[00:39:59] Speaker 00:
I'm sorry.

[00:40:00] Speaker 02:
And then 1527 refers to bituminous

[00:40:04] Speaker 02:
coal at the bottom.

[00:40:07] Speaker 02:
The response, the energy coal block coal or smoke coal GST used is non-metallurgical bituminous coal.

[00:40:16] Speaker 02:
So that's at the bottom of 1527.

[00:40:19] Speaker 02:
And I'm sorry, 1522 referred to carbonized materials and coconut shell and other carbonized materials.

[00:40:27] Speaker 02:
And then on the next page, on 1527, it specifies bituminous coal.

[00:40:33] Speaker 02:
So the record reflects that they are carbonized materials reflective of both coconut shell charcoal and these other and coal.

[00:40:46] Speaker 02:
So given the coconut shell charcoal is a subset of wood charcoal, it was reasonable for commerce to rely upon that classic category.

[00:40:57] Speaker 02:
And Your Honor, one argument that appellants make is that

[00:41:01] Speaker 02:
And they cite basically lower court cases for this proposition.

[00:41:05] Speaker 02:
It's that the HTS category, a broad basket category, is always improper.

[00:41:13] Speaker 02:
But in this court's Homeridian case, which was decided just six months ago, this court recognized that a broad HTS category in that category

[00:41:24] Speaker 02:
involved wood was appropriate given the record.

[00:41:27] Speaker 05:
The real question is when compared to what and here they have pointed to co-community which is devoted and dedicated to just coconut shell which does in terms of specificity clearly blow out of the water this wood charcoal basket.

[00:41:49] Speaker 02:
Well, Your Honor, it doesn't pull it out of the water because of the reasons we just discussed, in that it's overly narrow.

[00:41:55] Speaker 05:
I mean, if we had a scenario... What does overly narrow mean?

[00:41:57] Speaker 05:
When coconut shell has always been the name of the game for the past several years.

[00:42:04] Speaker 03:
It's a proxy for coal.

[00:42:09] Speaker 02:
Well, I mean... The government is accepted that, right?

[00:42:14] Speaker 02:
Are you talking about, Your Honor, are you talking about tough defense decisions?

[00:42:18] Speaker 03:
Well, I'm talking about just in general.

[00:42:20] Speaker 03:
I haven't seen any indication.

[00:42:22] Speaker 03:
There's many things that the parties debate and dispute here.

[00:42:27] Speaker 03:
I mean, seeing no indication the parties dispute the virtual effective equivalence of coconut shell and coal-based charcoal.

[00:42:36] Speaker 03:
You don't dispute that.

[00:42:38] Speaker 03:
No, Your Honor, but the problem is that... Well, that's what I mean.

[00:42:41] Speaker 03:
I mean, so, okay, if we have

[00:42:44] Speaker 03:
coconut shell, then we've covered coconut shell and coal.

[00:42:49] Speaker 03:
So it looks like the co-community is, in that respect, a perfect match in terms of specificity, as Chen just pointed out.

[00:42:57] Speaker 03:
So I'm not sure why you were resisting his point.

[00:43:01] Speaker 02:
Well, the co-community data, I guess our larger point is that it contains various efficiencies.

[00:43:12] Speaker 02:
And that is when Commerce was weighing HTS 4402 against its co-community data, it determined that the co-community data was unusable.

[00:43:26] Speaker 03:
And as the trial court found... Contrary to its subsequent determinations that it's usable.

[00:43:31] Speaker 02:
Well, Your Honor, the subsequent determinations were based on different records.

[00:43:35] Speaker 03:
How were they based on different information coming from co-community in the sense that co-community suddenly started taking out duties and taxes and suddenly was coming out with information that was more broadly based throughout the Philippines?

[00:43:53] Speaker 02:
I can explain, Your Honor, what Jacobi did in subsequent proceedings and what it did not.

[00:44:00] Speaker 02:
do here during the fourth administrative review is put evidence on the record.

[00:44:06] Speaker 02:
What they did in the fourth and fifth is put evidence on the record certifications from co-community as to tax exclusivity, as to whether the city, this region, or the Philippines reflect a broad market average.

[00:44:21] Speaker 02:
The problem is they never met their obligation during this administrative review.

[00:44:26] Speaker 02:
So commerce was left with a record that was bereft of any information to help it understand what the facetious region of the Philippines means in terms of broad app, a market average.

[00:44:39] Speaker 02:
All that appellant has asked the court to do is speculate about it must have been.

[00:44:43] Speaker 02:
But that must have been is not substantial evidence.

[00:44:46] Speaker 02:
As to the tax and duty exclusivity, same issue, Your Honor.

[00:44:49] Speaker 02:
In the subsequent administrative review, they papered the record.

[00:44:52] Speaker 02:
They met their obligation to provide evidence.

[00:44:56] Speaker 02:
And it just underscores what they did subsequently was not what they did during this administrative review, the fourth administrative review.

[00:45:05] Speaker 02:
And now they also ask the courts to do something that the court has recognized is improper.

[00:45:12] Speaker 02:
And that's in the answer case, which is to pull information from subsequent proceedings and apply it to this proceeding.

[00:45:19] Speaker 02:
That would upend several surrogate value decisions that this court has issued, which say,

[00:45:25] Speaker 02:
that the obligation of the party is to create a record.

[00:45:29] Speaker 02:
Well, a minute ago, though, you said that commerce determined, and I think that it was an overstatement, that the co-community data was improper or couldn't be used.

[00:45:39] Speaker 02:
What you don't want, I mean, I don't want you to see commerce as deciding between two forms of data what it determined to be the best source of data.

[00:45:47] Speaker 02:
I don't understand commerce as having determined they couldn't use the co-community data, but rather that as between the two, one represented

[00:45:54] Speaker 02:
a better proxy, at least on this record, as created for what they were looking for.

[00:45:59] Speaker 02:
But they didn't exclude it.

[00:46:01] Speaker 02:
They didn't say co-community data couldn't be relied on.

[00:46:04] Speaker 02:
They said this other one is a better source.

[00:46:06] Speaker 02:
Right, given the surrogate value criteria.

[00:46:08] Speaker 02:
So here's the question I have for you.

[00:46:12] Speaker 02:
Given that, I recognize that prior to the year in question, they were using India data.

[00:46:18] Speaker 02:
But the year before this, the dollar value was 88.

[00:46:22] Speaker 02:
And in all subsequent years, it had hovered around 100-ish.

[00:46:28] Speaker 02:
Given that using this particular basket category of Philippine data, the price jumped to $1,200.

[00:46:36] Speaker 02:
That is roughly 14 times prior years.

[00:46:41] Speaker 02:
And given, if I understood commerce is ruling correctly, they said either on this category, the Thai data or the Philippine data,

[00:46:51] Speaker 02:
would be equally viable surrogates on this category, right?

[00:46:56] Speaker 02:
Am I remembering the record right?

[00:46:58] Speaker 02:
I believe so, Your Honor.

[00:47:00] Speaker 02:
Yeah, I think so.

[00:47:02] Speaker 02:
I'm pretty sure.

[00:47:03] Speaker 02:
So let's walk a little just to make double sure.

[00:47:05] Speaker 02:
That's page 388.

[00:47:06] Speaker 02:
388.

[00:47:10] Speaker 02:
You'll have to pull it out, because here I'll just read it.

[00:47:13] Speaker 02:
OK.

[00:47:14] Speaker 02:
Therefore, in light of the above analysis, we find that the Thai and Philippine data for carbonized material are equally viable options.

[00:47:21] Speaker 02:
Okay, so I look to say, well what does the record contain by way of the tie data?

[00:47:26] Speaker 02:
This you should look, page 305 of the appendix.

[00:47:33] Speaker 02:
305, this is what the record contains before a commerce about the tie data on this exact point.

[00:47:39] Speaker 02:
When you look at carbonized material, I'm gonna do a little math for you and you're just gonna have to believe me.

[00:47:45] Speaker 02:
3.009 is the bots.

[00:47:48] Speaker 02:
Price, I may be saying it wrong, my walker says rhymes with motte, but that's the Thai dollar.

[00:47:54] Speaker 02:
And when you translate that into US dollars and then you multiply it by metric ton, which you have to do, it comes to $90.

[00:48:02] Speaker 02:
So we have pricing from India at 88, the year before this year in review, which was accepted by commerce.

[00:48:09] Speaker 02:
We have two equally viable categories of data according to commerce.

[00:48:13] Speaker 02:
The Thai data gives you a price of 90.

[00:48:16] Speaker 02:
Now I'm going to give us a margin of error.

[00:48:18] Speaker 02:
We'll say even a hundred because I may not have the exact day right for the translation from US dollars to Thai dollars, but it's not a huge fluctuation.

[00:48:27] Speaker 02:
So slight margin of error, roughly in the $100 ballpark.

[00:48:31] Speaker 02:
Then you have the Philippine basket data at $1,200.

[00:48:34] Speaker 02:
Doesn't that cause commerce pause?

[00:48:38] Speaker 02:
Doesn't that make you think, holy cow, really, really, really big change.

[00:48:42] Speaker 02:
Huge anomalous blip.

[00:48:44] Speaker ?:
Hmm.

[00:48:45] Speaker 02:
I think there's something wrong with this basket category we're using.

[00:48:48] Speaker 05:
Just to supplement the question, the co-community was coming in at about $250.

[00:48:53] Speaker 05:
So now if the choice is between co-community, $250 and $1,200 for 4402, why go with 4402?

[00:49:06] Speaker 02:
The reason why is that in making the surrogate value determination, commerce

[00:49:13] Speaker 02:
has five categories it looks to.

[00:49:16] Speaker 02:
And those categories don't reflect pricing.

[00:49:23] Speaker 02:
They reflect broad market average and the other issues we've discussed.

[00:49:27] Speaker 02:
And as for the Indian import data from previous proceedings runner,

[00:49:31] Speaker 02:
The India is no longer deemed as how it gets corrected.

[00:49:35] Speaker 00:
Oh, I get that.

[00:49:36] Speaker 02:
That's why you switched.

[00:49:37] Speaker 02:
But you decided, you commerce expressly found the factual matter that the Thai and Philippine data were equally viable.

[00:49:44] Speaker 02:
And the Thai data had a price of roughly 90 to 100, depending on what day the dollar value was.

[00:49:50] Speaker 02:
And the Philippine data that you relied on, the GPA, was 1,200.

[00:49:54] Speaker 02:
I mean, theirs was 240 or something, roughly.

[00:49:59] Speaker 02:
It's just, I understand this.

[00:50:02] Speaker 02:
I mean, I would have thought that would have caused a little pause because neither of these are perfect surrogates, right?

[00:50:07] Speaker 02:
The whole community data is not perfect and the whole community data is not perfect.

[00:50:11] Speaker 02:
Isn't that something that would have caused you to sort of say maybe one we're choosing is a less perfect surrogate given the variability?

[00:50:21] Speaker 02:
Again, pricing isn't one of the surrogate value categories or criteria that are looked at.

[00:50:28] Speaker 02:
Commerce, I mean, of course, it is without question, this is an imperfect process.

[00:50:33] Speaker 02:
It's necessarily as precise as this court has recognized.

[00:50:36] Speaker 02:
What it does is it looks at the two data sets that are before it.

[00:50:40] Speaker 02:
There were only two before it.

[00:50:42] Speaker 02:
And when it looked at co-community, the... Well, there were three.

[00:50:45] Speaker 02:
There was Thai, and then there were two for the Philippines.

[00:50:48] Speaker 00:
Right.

[00:50:49] Speaker 02:
There were three.

[00:50:50] Speaker 02:
But before it, the options are, I mean, in terms of...

[00:50:55] Speaker 02:
The HTS category and the co-community category were the options I guess it was looking at, you know, ultimately.

[00:51:05] Speaker 02:
And co-community, because of the issues with broad market average and the lack of information about tax exclusivity and duties, just like tax exclusivity and duties would have only elevated the price to the detriment of appellate.

[00:51:20] Speaker 02:
And if they were willing to take the elevator price, because they sure as heck would have preferred $240 over $1,200, I don't know how commerce's difficulty over whether it includes taxes or duties explains the decision.

[00:51:34] Speaker 02:
Your Honor, that would be, again, that would be upending this Court's precedence.

[00:51:38] Speaker 02:
I mean, that concern with tax exclusivity and duties goes to distortion.

[00:51:44] Speaker 02:
And this Court has recognized that the control of the tax

[00:51:49] Speaker 02:
exclusivity and duties, is a recognized surrogate value criterion that commerce can look to in making its determination.

[00:51:59] Speaker 02:
So that is... Yes, but you had no evidence on this record of whether it did or didn't include it.

[00:52:03] Speaker 02:
So why do you jump to the conclusion that it might include it?

[00:52:06] Speaker 02:
Well, this is what is recognized.

[00:52:08] Speaker 02:
Commerce isn't required to prove a negative.

[00:52:10] Speaker 02:
The whole point of record review is to get information on the record that supports your position.

[00:52:16] Speaker 02:
I mean, the parties have an obligation to participate in the process and provide support for those arguments.

[00:52:26] Speaker 02:
And the parties simply did not do that here.

[00:52:31] Speaker 05:
But who is this rule designed to protect, to try to avoid including data that might have taxes in it?

[00:52:41] Speaker 05:
I assume it's designed to protect the importer, the respondent.

[00:52:45] Speaker 02:
Well, the rule is designed to make sure that the value is as accurate as possible.

[00:52:50] Speaker 05:
Right.

[00:52:51] Speaker 05:
But I guess the question I'm having in my head is the whole point of trying to avoid taxes is to try to avoid the possibility that the price will be unfairly inflated and increased, which would ignore the detriment of the importer-respondent, right?

[00:53:10] Speaker 02:
Well, Your Honor, I mean, the concern is not with detriment.

[00:53:15] Speaker 02:
It's with getting the proper value, the most accurate value.

[00:53:19] Speaker 02:
That's the statutory scheme.

[00:53:21] Speaker 02:
And as this Court recognized, those criterion get accuracy.

[00:53:27] Speaker 02:
That is the point of those criterion.

[00:53:31] Speaker 03:
The question of whose burden it is with respect to whether a particular surrogate candidate price includes taxes, I think

[00:53:45] Speaker 03:
Chief Judge Rastani, I think it was Judge Rastani, has an opinion in Hibai.

[00:53:50] Speaker 03:
Do you know that case?

[00:53:51] Speaker 07:
Yes.

[00:53:52] Speaker 03:
And she seems to say that that's Congress's burden.

[00:53:55] Speaker 03:
Would you agree with that?

[00:53:58] Speaker 03:
To establish that the price includes taxes and therefore shouldn't be considered, or given full weight for that reason, in this case,

[00:54:14] Speaker 03:
the co-community price and the speculation on the part of commerce that it may have included taxes and duties.

[00:54:20] Speaker 03:
Judge Rastani's opinion seems to suggest that was commerce's burden to establish that it did include taxes.

[00:54:31] Speaker 03:
You know the passage on top that I was cited by the other side.

[00:54:34] Speaker 02:
I don't remember it exactly, Your Honor, but that doesn't reflect this Court's precedence.

[00:54:38] Speaker 02:
The precedence related to surrogate value determination.

[00:54:41] Speaker 03:
Related specifically to the tax determination?

[00:54:44] Speaker 02:
All surrogate values.

[00:54:45] Speaker 02:
I mean, they're required to place evidence on the record to support their position.

[00:54:50] Speaker 03:
And what's the best case of this Court for that proposition?

[00:54:54] Speaker 02:
Your Honor, I actually think I have a few.

[00:55:26] Speaker 02:
QVD.

[00:55:28] Speaker 02:
And it's one of the cases.

[00:55:30] Speaker 02:
I'm sorry, what's the name?

[00:55:32] Speaker 02:
QVD.

[00:55:32] Speaker 02:
QVD.

[00:55:33] Speaker 02:
It's a 2011, so a pretty good case, Your Honor.

[00:55:35] Speaker 02:
And that case, I mean, that case is also resonant with this appeal.

[00:55:39] Speaker 02:
In that case, this court recognized that the appellant there was in an awkward position to argue that commerce abused its discretion by not relying on evidence that appellant had failed to introduce into the record.

[00:55:54] Speaker 02:
I believe I have.

[00:56:07] Speaker 02:
I have just one last question.

[00:56:13] Speaker 05:
Getting back to the question of choosing one surrogate value possibility over another and following up on Judge Moore's earlier question or concern really about one particular price point being apparently far afield from all the other price points.

[00:56:32] Speaker 05:
Is it commerce's view that

[00:56:35] Speaker 05:
When doing the inquiry and studying all the factors, it can basically ignore the outcome in terms of how much disparity it might look like compared to prior determination.

[00:56:51] Speaker 05:
That's not a relevant inquiry at all.

[00:56:54] Speaker 05:
It might be 10 times higher.

[00:56:56] Speaker 05:
It might be 500 times higher.

[00:56:58] Speaker 05:
It doesn't matter so long as commerce reasonably employs whatever criteria that they're supposed to use.

[00:57:06] Speaker 02:
Yes, Your Honor.

[00:57:07] Speaker 02:
I would say that previous proceedings don't matter.

[00:57:11] Speaker 02:
And again, this court has recognized that each administrative proceeding must stand on its own record.

[00:57:18] Speaker 05:
But what about the principle that you should

[00:57:22] Speaker 05:
consider possible aberrational outcomes as well.

[00:57:26] Speaker 02:
Right, but the court should consider aberrational outcomes, but there's nothing on the record to suggest aberration.

[00:57:34] Speaker 02:
Here, appellants were looking at Indian data.

[00:57:38] Speaker 02:
Indian data reflects a country that is not a... But the Thai data suggests aberration too, right?

[00:57:44] Speaker 02:
The Thai data, which Congress said is an equally viable option, amounts to about a hundred bucks.

[00:57:50] Speaker 02:
Why doesn't that suggest that the Philippine data at $1,200 is aberrational?

[00:57:56] Speaker 02:
Well, again, Your Honor, Commerce was looking at other factors and was concerned about the breadth of the surrogate value factors is what I'm referring to.

[00:58:05] Speaker 02:
It was concerned about the breadth of the surrogate value factors and satisfying them.

[00:58:11] Speaker 02:
And, of course, those factors reflect the best available information in your proxy for that

[00:58:18] Speaker 02:
for that standard, which, of course, as this Court has recognized, Congress has great discretion in applying.

[00:58:25] Speaker 02:
Okay.

[00:58:25] Speaker 02:
Thank you, Counsel.

[00:58:26] Speaker 02:
Thank you, Your Honor.

[00:58:29] Speaker 02:
Mr. Flaverda?

[00:58:32] Speaker 06:
Thank you, Your Honor.

[00:58:40] Speaker 06:
I just want to take the few minutes I have, Your Honor,

[00:58:44] Speaker 06:
Maybe clear up a little bit of the confusion with the government and Mr. Porter kind of talking past each other about what they do use and what they don't use.

[00:58:52] Speaker 06:
The records clear that for the material that went to the United States, only coal was used by anybody.

[00:58:59] Speaker 06:
There was no charcoal used.

[00:59:00] Speaker 06:
There was no wood charcoal used.

[00:59:03] Speaker 06:
There was no nut-based charcoal used.

[00:59:04] Speaker 03:
Well now, Ms.

[00:59:06] Speaker 03:
Suarez disagrees with that.

[00:59:07] Speaker 03:
I understand her response, so you're taking issue with her on that.

[00:59:13] Speaker 06:
As I read the record, they do use nut-based, but not in the product that was shipped to the United States.

[00:59:24] Speaker 06:
That's how I understand the record and the pages that the court was just discussing with the parties.

[00:59:31] Speaker 06:
So, commerce was faced with two, as the court has recognized, imperfect choices.

[00:59:38] Speaker 06:
The choice they used includes nut-based, includes other wood-based, all of which Commerce Fund could be used to produce the subject merchandise.

[00:59:50] Speaker 06:
The question that, and having chosen between two imperfect choices, we got to make the record, Mr. Porter got to make the record, all the parties got to make a record.

[01:00:02] Speaker 06:
In order to demonstrate that use of the Philippine

[01:00:08] Speaker 06:
HTS, Bafty Ketter is incorrect.

[01:00:13] Speaker 06:
Mr. Porter decided to place on the record HTS information that's record for the court, not before commerce.

[01:00:21] Speaker 06:
All the things that are potentially wrong with the data that they challenge come from extra record evidence, either tariff numbers that don't match with the tariff numbers.

[01:00:34] Speaker 03:
What is the source, if you know,

[01:00:37] Speaker 03:
of the tariff numbers that are found in the briefs, as opposed to the one that's found in the joint appendix?

[01:00:46] Speaker 06:
You would have to ask Mr. Porter where he got those numbers.

[01:00:49] Speaker 06:
I can only assume that HTF numbers are only harmonized out to six digits internationally.

[01:00:58] Speaker 06:
And once you get out to 10 digits, then there are these statistical subcategories

[01:01:04] Speaker 06:
None of that information about statistical subcategories, if it existed in a particular year, was placed on the record.

[01:01:12] Speaker 06:
So based on the data that was on the record, we only went out to eight digits in the high category, not just 10 digits.

[01:01:22] Speaker 06:
And they were completely different.

[01:01:24] Speaker 06:
The point is, the respondents are attempting to say, look, there must be something wrong with the data because

[01:01:33] Speaker 06:
From other places we can find, and other times when we actually did go to the trouble to prove what the problem was, we found that there weren't imports.

[01:01:42] Speaker 06:
I don't get to do what Judge Moore got to do today in looking at that extra record data and maybe finding that maybe what the respondents are claiming isn't quite accurate.

[01:01:52] Speaker 06:
We are stuck with the record that we have that we all got a chance to make.

[01:01:56] Speaker 06:
And Commerce took the record that we created

[01:02:00] Speaker 06:
And I would take issue with Judge Rustani on the tax issue that it's commerce's burden to figure that out.

[01:02:07] Speaker 06:
It is our burden when we place a source of data on the record and say, you should use this data.

[01:02:13] Speaker 06:
And by the way, all the data in dispute here that's on the record was placed on by the respondents.

[01:02:18] Speaker 06:
So it is the party's burden to make the record for commerce to rule on.

[01:02:26] Speaker 06:
And then once that record gets before this court, this is a record evidence proceeding and the determinations made by the court should be based on the record evidence.

[01:02:40] Speaker 02:
Okay, Mr. Rivera, you're well over your time, too.

[01:02:42] Speaker 02:
We've got to bring this to close, so thank you.

[01:02:46] Speaker 02:
Let me go back to Mr. Porter.

[01:02:47] Speaker 02:
You have three minutes of rebuttal.

[01:02:49] Speaker 02:
Ms.

[01:02:49] Speaker 02:
Mohan, no one in the appellee side addressed transportation, so there's no rebuttal remaining on your end.

[01:03:02] Speaker 05:
Thank you.

[01:03:03] Speaker 04:
Thank you, Your Honor.

[01:03:04] Speaker 04:
Let me clear up some confusion here and thank my colleagues.

[01:03:09] Speaker 04:
With respect to the HTS information, apparently, in the very year that we're talking about, 2010, the Philippines changed their system.

[01:03:22] Speaker 04:
They went from, I believe, an eight-digit to 10-digit system.

[01:03:28] Speaker 04:
And that's the source of the confusion.

[01:03:31] Speaker 04:
In the brief,

[01:03:32] Speaker 04:
that we have, where Terrace Met has, here's the four digits, here are the ten digits, that is for the actual headings that apply in the review period in question.

[01:03:44] Speaker 02:
But they weren't presented to commerce.

[01:03:47] Speaker 04:
The Trade Court said it is proper for the Court to take judicial notice of the headings.

[01:03:56] Speaker 04:
That these headings were in fact the proper headings

[01:04:00] Speaker 04:
of the Philippine system for the review period in question.

[01:04:04] Speaker 04:
So just you ask what the source of confusion is, that's the source of the confusion, that the essentially the heading that Congress used was an old HGS.

[01:04:15] Speaker 04:
That's point number one.

[01:04:17] Speaker 04:
Point number two, to judge more why you saw values, I apologize, I should have thought of this.

[01:04:21] Speaker 04:
Again, I thank my colleagues.

[01:04:23] Speaker 04:
The reason you saw values, you're seeing imports from non-market economy countries, China or Vietnam.

[01:04:29] Speaker 04:
And what Congress does is they exclude them.

[01:04:31] Speaker 04:
They're not usable for surrogate value purposes.

[01:04:34] Speaker 04:
So after you exclude the imports from China or Vietnam, you have no imports of coconut shell charcoal.

[01:04:45] Speaker 04:
Now, government conceded there's no evidence contrary to that.

[01:04:48] Speaker 04:
But the final point that I want to make is very important.

[01:04:51] Speaker 04:
The government stood up here and said, they do not pull down the data.

[01:04:56] Speaker 04:
I can show you that, in fact, they do.

[01:04:58] Speaker 04:
If you turn to the record 40... Excuse me.

[01:05:04] Speaker 04:
I apologize.

[01:05:04] Speaker 04:
371.

[01:05:07] Speaker 04:
This is called the... No, sorry, apologize.

[01:05:10] Speaker 04:
No.

[01:05:10] Speaker 04:
401.

[01:05:11] Speaker 04:
This is called the surrogate value memo.

[01:05:14] Speaker 04:
Turn to page 402.

[01:05:16] Speaker 04:
Under Global Trade Atlas,

[01:05:19] Speaker 04:
Certain service companies in GTA, we did not adjust the values for inflation.

[01:05:25] Speaker 04:
And then you turn to where Judge Ten cited, where they actually have the data.

[01:05:31] Speaker 04:
If you look at that data, that is completely different in the format than either Jacobi or Cherishmat submitted.

[01:05:39] Speaker 04:
They pulled down their own data.

[01:05:41] Speaker 04:
They didn't use the data submitted by Jacobi and Cherishmat.

[01:05:44] Speaker 04:
That is the GTA data.

[01:05:46] Speaker 04:
This is proof positive that they pull down their own data.

[01:05:50] Speaker 04:
So the government is wrong to say they don't pull down the data.

[01:05:56] Speaker 03:
The real question is whether they have an obligation to pull down any data.

[01:06:04] Speaker 03:
What this case really seems to come down to is, did you put enough into the record to give commerce a basis for not using co-community?

[01:06:15] Speaker 03:
a basis for using Cocoa Community over the evidence that it had with respect to other circuits.

[01:06:24] Speaker 03:
And as to that, the question is, is that commerce's duty either with respect, for example, to the tax factor or with respect to other factors, or is that something that you had an obligation to put in?

[01:06:36] Speaker 04:
Your Honor, I submit that evidence on the record supports Judge Chen's observation that the Cocoa Community

[01:06:45] Speaker 04:
blows out of the water with respect to product specificity.

[01:06:49] Speaker 04:
And I submit there's really no dispute in the fact that the government conceded that point.

[01:06:53] Speaker 04:
My position is, once that's agreed, that the co-community is more product specific, everything else is really irrelevant.

[01:07:03] Speaker 04:
And I take Judge Moore's observations as well, that in fact, the tax and duty was against them.

[01:07:14] Speaker 03:
Well, how can we, doctrinally, how do we integrate that into our analysis?

[01:07:21] Speaker 03:
Because Ms.

[01:07:22] Speaker 03:
Suarez tells us that's absolutely violative of the basic principles of calculating duty is to take into account whether this is actually hurting or helping the particular complaining party.

[01:07:33] Speaker 04:
OK.

[01:07:33] Speaker 04:
Judge Moore is correct.

[01:07:34] Speaker 04:
There is precedent for.

[01:07:37] Speaker 04:
the Court of National Trade saying a particular surrogate value is highly aberrational.

[01:07:41] Speaker 03:
Well, I'm not going to aberrational right now.

[01:07:43] Speaker 03:
I'm going to whether this is helpful or harmful to the complaining party.

[01:07:48] Speaker 03:
If it's a tax duty, clearly, if we look at that, we would be able to say, who cares whether it was tax or duty?

[01:07:56] Speaker 03:
Jacobi's better off if they lose.

[01:08:00] Speaker 04:
Right.

[01:08:00] Speaker 04:
Understood.

[01:08:02] Speaker 04:
The overarching doctrinal point that I think you need to adopt

[01:08:06] Speaker 04:
is essentially one that the trade court itself has adopted in some cases, which is specificity trumps.

[01:08:16] Speaker 04:
That when you have more specific data that's contemporaneous, no one disagrees that all the data is contemporaneous, you have contemporaneous specific data, then that trumps.

[01:08:30] Speaker 02:
Because if that were the rule, suppose your specific data was from a tiny, tiny, tiny little town in the Philippines, and that there's no evidence that it's representative of the entire Philippines community.

[01:08:43] Speaker 02:
Suppose I'm talking about the Philippines, which is a relatively small country, but we're actually talking about China, and your data is from a tiny, tiny, tiny little place in China, how do we know it's representative of the whole country?

[01:08:53] Speaker 02:
It can't be that specialty terms everything else.

[01:08:56] Speaker 04:
Obviously, I'm sorry, I over-vote.

[01:08:58] Speaker 04:
Not in all situations.

[01:09:00] Speaker 04:
But I would say in this situation, where there is evidence of broadly representative of the whole Philippines.

[01:09:07] Speaker 02:
What is the evidence that it's broadly representative of the whole Philippines?

[01:09:10] Speaker 04:
The publication itself on page two or three, as we cite it in our brief.

[01:09:15] Speaker 03:
The publication just says, Philippine national price.

[01:09:17] Speaker 03:
And then in the data, which backs it up, it says, Messiah's region buyer.

[01:09:22] Speaker 04:
Right.

[01:09:23] Speaker 04:
we would argue the clear implication is this publication believed this region was sufficiently large to be broadly representative of all the Philippines.

[01:09:33] Speaker 03:
That's a leap, it seems to me.

[01:09:36] Speaker 03:
What they're saying is, here's the price we got for you, and that's the price we got from the size.

[01:09:41] Speaker 03:
I don't see any place that they say, and what's more, it's representative of the Philippines.

[01:09:46] Speaker 03:
Because they do have prices for other countries listed on the same page in which they say,

[01:09:52] Speaker 03:
this country, and they don't have qualifications for region, and that they have other countries as to which they have qualifications for region.

[01:09:58] Speaker 03:
So I'm not sure.

[01:09:59] Speaker 03:
I'm seeing the conclusion there that the Visayas evidence is necessarily countrywide.

[01:10:09] Speaker 03:
Is there more than that?

[01:10:11] Speaker 04:
No, Your Honor.

[01:10:12] Speaker 04:
That our evidence of countrywide is the publication self-referred to it as national pricing.

[01:10:17] Speaker 05:
If two reasonable minds could differ in how they read the co-community publication as to whether it's a national price number or just a region-specific price number, then we should give deference to the fact-finder's determination of one choice over the other.

[01:10:37] Speaker 05:
Is that right?

[01:10:39] Speaker 04:
Your Honor, that is correct for that issue.

[01:10:45] Speaker 04:
a variety of different considerations.

[01:10:47] Speaker 04:
At the end of the day, they need to decide the best information available.

[01:10:51] Speaker 04:
And I submit that Judge Morris-Grupp, they need to take into account specificity, absolutely exclusive, broad representiveness, and whether it's just ultimately reasonable.

[01:11:04] Speaker 04:
And they need to take all of that into account.

[01:11:05] Speaker 04:
And if you take all of that into account, which is the best when we submit the Code of Community Law?

[01:11:11] Speaker 04:
Thank you, Your Honor.

[01:11:12] Speaker 04:
Thank you for your indulgence.

[01:11:13] Speaker 02:
I thank both counsels again for taking on this mission.